§ 1-01 Issuance of New Bond.
Upon registration of the transfer of a registered bond, the transferee may be provided with a new bond.
§ 1-02 Form of New Bond.
The new bond shall be of substantially the same form and tenor as the bond presented, except as provided below.
§ 1-03 Signing and Attesting of New Bond.
The new bond shall be signed and attested, either:
§ 1-04 Execution and Authentication of New Bond.
The new bond shall be executed as of the date of the bond presented and shall be authenticated as of the date of delivery of the new bond.
§ 1-05 Destruction of Old Bond.
The bond presented shall be destroyed in such manner as is set forth in any agreement between the City and its fiscal agent and a certificate of destruction shall be prepared as set forth in such agreement.
§ 1-06 Effectiveness.
These Rules and Regulations shall be effective immmediately; provided, however, that neither delivery of new bonds prior to the effective date hereof nor the application of procedures inconsistent with the requirements of these Rules and Regulations shall affect the validity of new bonds.
§ 2-01 Applicability.
These regulations apply to Comptroller investigations, determinations, hearings, reports and recommendations, and orders under New York state labor law articles eight and nine and New York City Administrative Code § 19-142; Comptroller investigations, determinations, hearings and reports and recommendations made to the New York city department of housing preservation and development under New York state real property tax law § 421-a(8), (16)(h) and (17)(g); and Comptroller investigations, determinations, hearings and reports and recommendations made to city agencies under the prevailing wage provisions of New York City Administrative Code § 6-109.
§ 2-02 Definitions.
As used in this chapter, the following terms have the following meanings. Capitalized terms that are not specifically defined in this chapter have the meanings set forth in the laws designated in 44 RCNY § 2-01.
Bona Fide Fringe Benefit. “Bona Fide Fringe Benefit” means any payment made by a Covered Employer, other than wages, that directly benefits a Covered Worker, including but not limited to paid vacation or sick leave, medical or dental insurance, retirement accounts or annuities and apprenticeship training.
Bureau. “Bureau” means the comptroller’s bureau of labor law.
Certified Payroll Report. “Certified Payroll Report” means a weekly payroll record in the form provided on the comptroller’s website.
Complaining Worker. “Complaining Worker” means a worker who has filed a written complaint for the underpayment of Prevailing Wages and Supplements with the Bureau.
Comptroller. “Comptroller” means the City of New York comptroller or the comptroller’s designee.
Construction Poster. “Construction Poster” means a poster no smaller than two feet in height and two feet in width in the form provided on the comptroller’s website with the heading “Prevailing Rate of Wages” in lettering no smaller than two inches in height and two inches in width. The poster must detail the Prevailing Wages and Supplements due for Covered Work performed on a public work project subject to the requirements of labor law article eight and must be constructed of materials capable of withstanding adverse weather conditions.
Covered Employer. “Covered Employer” means any person or entity subject to liability for Prevailing Wages and/or Supplements under labor law articles eight or nine on public works projects or building service contracts for the City of New York by and through its agencies or public benefit corporations; or under real property tax law § 421-a(8), (16)(h), or 17(g); or New York City Administrative Code § 6-109 or 19-142.
Covered Work. “Covered Work” means any work that is subject to the requirements of articles eight or nine of the labor law on public works projects or building service contracts for the City of New York by and through its agencies or public benefit corporations; or subject to the requirements of real property tax law § 421-a(8), (16)(h) or (17)(g); or New York City Administrative Code § 6-109 or 19-142. “Covered Work” does not include purely supervisory work, or work that is not performed on or about the site of the project, contract or building in question.
Covered Worker. “Covered Worker” means any person who performs Covered Work.
Daily Sign-In Log. “Daily Sign-In Log” means a daily attendance record in the form provided on the comptroller’s website.
Document. “Document” means records in any form or electronically stored information, including writings, graphs, charts and other data or data compilations stored in any medium.
Prevailing Wage and/or Supplement. “Prevailing Wage and Supplement” or “Prevailing Wage” or “Prevailing Supplement” mean Prevailing Wages and/or Supplements as defined in labor law articles eight and nine; real property tax law § 421-a(8), (16)(h) or (17)(g); and New York City Administrative Code §§ 6-109(a) and 19-142.
Worker Notice. “Worker Notice” means a notice in the form provided on the comptroller’s website detailing the Prevailing Wages and Supplements due for Covered Work performed on a particular project, contract or building and informing workers of their right to contact the comptroller about Prevailing Wages and Supplements.
§ 2-03 Annual Prevailing Wage and Supplement Determinations.
(a) Prevailing Wage Schedules. On June 1 of each year, the Bureau preliminarily determines and publishes Prevailing Wage and Supplement rates for each trade classification. The Bureau then considers any comments from interested persons asserting errors or omissions in the preliminary Prevailing Wage and Supplement rates if such comments are submitted in writing on or before June 15 of the same year. On July 1 of each year, the Bureau determines and publishes the Prevailing Wage and Supplement rates for each trade classification effective from the date of publication until June 30 of the following year. In January of each year, the Bureau may publish updated Prevailing Wage and Supplement rates for each trade classification, without a comment period, effective from the date of publication until June 30 of the same year.
(1) The Prevailing Wage and Supplement rates for each trade classification are based upon the rate of wage paid and supplements provided by virtue of a collective bargaining agreement between a bona fide labor organization and employers of the private sector performing public or private work, provided the employers party to the agreement employ at least 30 percent of the workers in the same trade or occupation in the City of New York. If it is determined that less than 30 percent of the workers in a particular trade or occupation in the City of New York receive a collectively bargained rate of wage and supplements, then the average wage paid and supplements provided to such workers in the same trade or occupation in the City of New York during the prior year is the Prevailing Wage and Supplement rate.
(2) For all Prevailing Wage and Supplement rates other than those governed by labor law article eight, the Bureau considers: (i) wage and fringe benefit data from the Occupational Employment Statistics survey and the National Compensation survey; (ii) classification data from the Standard Occupational Classification System and the North American Industry Classification System; as well as (iii) any other competent evidence submitted by an interested person before the Bureau adopts rates from a collective bargaining agreement.
§ 2-04 Prevailing Wage and Supplement Requirements and Recordkeeping.
(a) Applicable rates. The Prevailing Wage and Supplement rates that are required for Covered Work are the rates that are published and effective as set forth in 44 RCNY § 2-03(a) at the time that the Covered Work is performed.
(1) The obligation to pay Prevailing Supplements may be discharged by either the provision of (i) Bona Fide Fringe Benefits that cost no less than the Prevailing Supplement rate, (ii) a supplement to the hourly wage in an amount no less than the Prevailing Supplement rate, or (iii) a combination of Bona Fide Fringe Benefits and wage supplements that, collectively, costs no less than the Prevailing Supplement rate.
(2) The obligation to pay Prevailing Wages cannot be reduced or discharged through the provision of Bona Fide Fringe Benefits that cost more than the Prevailing Supplement rate. (3) The hourly cost of a Bona Fide Fringe Benefit provided by a Covered Employer to a Covered Worker under 44 RCNY § 2-04(b)(1) must be determined by dividing the total annual cost or contribution for providing such Bona Fide Fringe Benefit by the total annual hours of Covered Work and all other work performed by that Covered Worker for that Covered Employer. However, a Covered Employer that provides an hourly contribution for each hour of Covered Work to an individual account for a Covered Worker is credited for such hourly contribution.
(1) Covered Employers must maintain Documents consisting of the following records for six years after Covered Work is performed, must preserve the records immediately when notified by the Bureau of a compliance investigation, and must produce true copies of all such records within the time requested by the Bureau after notice of the right to counsel described in 44 RCNY § 2-05(f):
i) Contracts and subcontracts for Covered Work;
ii) Certified Payroll Reports for Covered Work;
iii) Daily Sign-In Logs for Covered Work;
iv) Weekly payroll records, registers or journals required by labor law Section 195(4);
v) Pay stubs or wage statements required by labor law sections 195(3) and 220(3-a)(a)(ii);
vi) All Documents and records concerning the cost of Bona Fide Fringe Benefits provided to Covered Workers, including but not limited to invoices, account statements, benefits remittance reports and benefits plan descriptions; and
vii) All Federal and State employment tax returns and filings, including but not limited to quarterly combined withholding, wage reporting, and unemployment insurance form NYS-45 returns; employers’ quarterly Federal tax form 941 returns; wage and tax form W-2 statements; and miscellaneous income form 1099 statements.
(2) Each Covered Employer must maintain one weekly Certified Payroll Report for each project, contract or building on which it performs Covered Work. The Certified Payroll Report must set forth the names, addresses and trade classifications for all Covered Workers employed by the Covered Employer on the project, contract or building, as well as the hours and days of Covered Work, the hourly wage and supplement rates, and the weekly gross and net pay amounts for each Covered Worker. The Certified Payroll Report must be signed and affirmed to be true under penalties of perjury by an officer or principal of the Covered Employer.
(3) Each Covered Employer must maintain one Daily Sign-In Log for each project, contract or building on which it performs Covered Work. The Daily Sign-In Log must set forth the names, trade classifications, daily start and end times of Covered Work for, and must be signed by, each Covered Worker employed by the Covered Employer on the project, contract or building.
(4) Each Covered Employer must post a Worker Notice in a prominent and accessible place at each project, contract or building on which it performs Covered Work. The Worker Notice must attach schedules detailing the trade classifications and the corresponding Prevailing Wages and Supplements applicable to the Covered Work performed on that project, contract or building. On public work projects subject to the requirements of labor law article eight only, Covered Employers must instead of posting a Worker Notice post a Construction Poster in a prominent and accessible place at each work site. The Construction Poster must attach schedules detailing the trade classifications and the corresponding Prevailing Wages and Supplements applicable to the Covered Work performed on that public work project.
(5) Each Covered Employer must provide a Worker Notice to each employee performing Covered Work subject to the requirements of labor law article eight at the time it begins performing such public work project, and with the first paycheck to each such employee after July first of each year. The Worker Notice must attach schedules detailing the trade classifications and the corresponding Prevailing Wages and Supplements applicable to the Covered Work performed on that public work project.
(6) Each Covered Employer with employees performing Covered Work subject to the requirements of labor law article eight must provide pay stubs, as required by labor law sections 195(3) and 220(3-a)(a)(ii), for each work week to each such employee detailing the trade classifications and the corresponding Prevailing Wage rates applicable to such Covered Work performed by such employee in such work week.
§ 2-05 Compliance Investigations, Compliance Determinations, Settlements, Interest and Penalties.
(a) The Bureau investigates and determines underpayments of Prevailing Wages and Supplements by Covered Employers under labor law articles eight and nine, real property tax law § 421-a(8), (16)(h), and (17)(g) and New York City Administrative Code § 19-142 for Covered Work performed within the two-year period immediately preceding the earlier of: (i) the commencement of the compliance investigation by the Bureau, or (ii) the filing of a written complaint by a Covered Worker with the Bureau or the New York State Department of Labor.
(1) The Bureau assesses interest due on the underpayment of Prevailing Wages and/or Supplements from the date of underpayment, and such interest cannot be waived by stipulation of settlement.
(2) Upon resolution of a compliance determination by stipulation of settlement, the Bureau may reduce the rate of interest on the underpayment of Prevailing Wages and/or Supplements from the rate of interest then in effect as prescribed by the superintendent of banks under Section fourteen-a of the banking law per annum to a rate of interest not less than six percent, based upon due consideration of the size of the Covered Employer’s business, the good faith of the Covered Employer, the gravity of the violation, the history of previous violations and the failure to comply with recordkeeping or other non-wage requirements.
(1) In cases brought under labor law articles eight and nine and New York City Administrative Code §§ 6-109 and 19-142, the Bureau assesses any civil penalty in accordance with the criteria set forth in labor law §§ 220(8), 220-b (2)(d) and 235(5)(b) and New York City Administrative Code § 6-109(e)(1)(a).
(2) The Bureau may waive the civil penalty for a Covered Employer entering into a stipulation of settlement for underpayments of Prevailing Wages and/or Supplements by its subcontractor where there is uncontroverted evidence of all of the following:
(i) the Covered Employer or its agent provided the subcontractor with the applicable Prevailing Wage and Supplement schedule for the project or contract;
(ii) the Covered Employer made a good faith effort to ensure that the subcontractor complied with all Prevailing Wage and Supplement requirements, including but not limited to requesting and reviewing Certified Payroll Reports;
(iii) the subcontractor cannot be located, despite the Covered Employer having made a good faith attempt to locate said subcontractor, or the subcontractor has filed for bankruptcy protection, or the subcontractor is no longer in business;
(iv) the Covered Employer has paid the subcontractor in full in accordance with the terms of its subcontract agreement;
(v) the Covered Employer has fully cooperated, in a timely manner, with the Bureau’s compliance investigation; and
(vi) in all likelihood, the Covered Employer will be unable to receive indemnification from the subcontractor for the restitution the Covered Employer has paid.
§ 2-06 Hearings, Reports and Recommendations and Orders.
(a) Designation. All hearings required by New York labor law articles eight and nine; real property tax law § 421-a(8), (16)(h) and (17)(g); and New York City Administrative Code §§ 6-109 and 19-142 are held by the office of administrative trials and hearings trials division.
(1) Failure of a Covered Employer to provide any information or Document requested by the Bureau in a timely manner as set forth in 44 RCNY § 2-05(g) and (h) may be grounds for preclusion of that Document or drawing of an adverse inference at the trial upon motion to the administrative law judge.
(2) No party may seek to introduce any testimonial, documentary or other evidence concerning the immigration status of Covered Workers at the trial, including but not limited to information about their social security or individual taxpayer identification numbers, except upon motion to the administrative law judge for good cause shown.
(1) Within a reasonable time after the conclusion of the hearing, the administrative law judge issues a written report, including proposed findings of fact and conclusions of law, and recommendation as to the order.
(2) In cases brought under labor law articles eight and nine and New York City Administrative Code § 19-142, the administrative law judge forwards the report and recommendation to the Comptroller for consideration and the Comptroller issues an order.
(3) In cases brought under real property tax law § 421-a(8), (16)(h), and (17)(g), the administrative law judge forwards the report and recommendation to the New York City department of housing preservation and development for consideration and that agency issues an order.
(4) In cases brought under New York City Administrative Code § 6-109, the administrative law judge forwards the report and recommendation to the contracting agency for consideration, and the contracting agency issues an order.
(1) In cases brought under labor law articles eight and nine and New York City Administrative Code § 19-142, the Comptroller may, on his or her own initiative or on application duly made, on notice to all parties: (i) request further information or briefing on any relevant issue or (ii) provide copies of any recalculation of Prevailing Wages and Supplements underpayment, interest and civil penalty, and request comments from the parties to the hearing before issuing an order. Such request and any responses are part of the record.
(2) In cases brought under labor law articles eight and nine and New York City Administrative Code § 19-142, the Comptroller may adopt, reject or modify the administrative law judge’s report and recommendation when issuing an order; such order is to be based exclusively upon the record as a whole, including facts of which official notice has been taken.
(3) The Bureau files the order of the Comptroller and serves a notice of filing, with copy of the order, on every party.
§ 2-07 Civil Penalties for Violations of Employer Notice Requirements.
(a) Penalties for Construction Poster violations with opportunity to cure.
(1) The failure of a Covered Employer performing Covered Work subject to the requirements of labor law article eight to comply with the Construction Poster requirements set forth in 44 RCNY § 2-04(c)(4) constitutes a separate violation at each work site, for each work day. Covered Employers are deemed to have willfully posted an incorrect Construction Poster if they knew or should have known that the trade classifications or Prevailing Wages and Supplements detailed in such poster are incorrect or incomplete for the Covered Work performed at such public work site.
The penalty amounts set forth in Appendix A apply to the following Construction Poster violations.
(2) A Class 1 Construction Poster violation consists of:
i) failing to post a Construction Poster at the public work site where the Covered Employer has 10 or more employees and has worked on a prior public work project; or
ii) willfully posting an incorrect Construction Poster at the public work site.
(3) A Class 2 Construction Poster violation consists of:
i) failing to post a Construction Poster at the public work site where the Covered Employer has fewer than 10 employees or has never worked on a prior public work project; or
ii) posting a Construction Poster without schedules detailing trade classifications and Prevailing Wages and Supplements at the public work site; or
iii) posting a Construction Poster in an inaccessible and not prominent place at the public work site.
(4) A Covered Employer that has committed a first Construction Poster violation under this section has ten days from receipt of the summons under 44 RCNY § 2-07(e) to post a proper Construction Poster, sign the admission of liability and certification of cure on the summons, and return the summons with a photograph of such poster to the Comptroller. If such proof of compliance is acceptable to the Comptroller, an order for such violation will be issued with no civil penalty. Each violation by a Covered Employer that occurs after the Comptroller has issued one order under 44 RCNY § 2-07 to that Covered Employer within the last six years is a second violation. Each violation by a Covered Employer that occurs after the Comptroller has issued two or more orders under 44 RCNY § 2-07 to that Covered Employer within the last six years is a third and subsequent violation.
(1) The failure of a Covered Employer to comply with the Worker Notice requirements set forth in 44 RCNY § 2-04(c)(5) for employees performing Covered Work subject to the requirements of labor law article eight constitutes a separate violation for each such employee. Covered Employers are deemed to have willfully provided an incorrect Worker Notice if they knew or should have known that the trade classifications or Prevailing Wages and Supplements detailed in such notice are incorrect or incomplete for such Covered Work performed by such employee.
The penalty amounts set forth in Appendix A apply to the following Worker Notice violations.
(2) A Class 1 Worker Notice violation consists of:
i) failing to provide a Worker Notice where the Covered Employer has 10 or more employees and has worked on a prior public work project; or
ii) willfully providing an incorrect Worker Notice.
(3) A Class 2 Worker Notice violation consists of:
i) failing to provide a Worker Notice where the Covered Employer has fewer than 10 employees or has not worked on a prior public work project; or
ii) providing a Worker Notice without schedules detailing trade classifications and Prevailing Wages and Supplements.
(4) A Covered Employer that has committed a first Worker Notice violation has thirty days from receipt of the summons under 44 RCNY § 2-07(e) to provide a proper Worker Notice to each employee, sign the admission of liability and certification of cure on the summons, and return the summons with a copy of such notice to the Comptroller. If such proof of compliance is acceptable to the Comptroller, an order for such violation will be issued with no civil penalty. Each violation by a Covered Employer that occurs after the Comptroller has issued one order under 44 RCNY § 2-07 to that Covered Employer within the last six years is a second violation. Each violation by a Covered Employer that occurs after the Comptroller has issued two or more orders under 44 RCNY § 2-07 to that Covered Employer within the last six years is a third and subsequent violation.
(1) The failure of a Covered Employer to comply with the pay stub requirements set forth in 44 RCNY § 2-04(c)(6) for employees performing Covered Work subject to the requirements of labor law article eight constitutes a separate violation for each such employee, for each work week. Covered Employers are deemed to have willfully provided an incorrect pay stub to an employee performing Covered Work subject to the requirements of labor law article eight if they knew or should have known that the Prevailing Wage rates detailed in such pay stub are incorrect or incomplete for such Covered Work performed by such employee in the work week covered by such pay stub. Penalties for pay stub violations may be assessed for up to one year from the date of the violation for each such employee.
The penalty amounts set forth in Appendix A apply to the following pay stub violations.
(2) A Class 1 pay stub violation consists of:
i) failing to provide a pay stub; or
ii) willfully providing an incorrect pay stub.
(3) A Class 2 pay stub violation consists of providing a pay stub without trade classifications and Prevailing Wage rates.
(4) A Covered Employer that has committed a first Class 2 pay stub violation has thirty days from receipt of the summons under 44 RCNY § 2-07(e) to provide to each employee the proper pay stubs for the entire compliance period in the summons, sign the admission of liability and certification of cure on the summons, and return the summons with copies of all such pay stubs to the Comptroller. If such proof of compliance is acceptable to the Comptroller, an order for such violation will be issued with no civil penalty. Each violation by a Covered Employer that occurs after the Comptroller has issued one order under 44 RCNY § 2-07 to that Covered Employer within the last six years is a second violation. Each violation by a Covered Employer that occurs after the Comptroller has issued two or more orders under 44 RCNY § 2-07 to that Covered Employer within the last six years is a third and subsequent violation.
Appendix A
For a full description of violations, refer back to text of section of rule indicated
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| 44 RCNY § 2-07(a)(2) | First Construction Poster violationClass 1 | Y | $50 | $50 |
|---|---|---|---|---|
| 44 RCNY § 2-07(a)(3) | First Construction Poster violationClass 2 | Y | $30 | $30 |
| 44 RCNY § 2-07(a)(2) | Second Construction Poster violationClass 1 | N | $250 | $250 |
| 44 RCNY § 2-07(a)(3) | Second Construction Poster violationClass 2 | N | $150 | $150 |
| 44 RCNY § 2-07(a)(2) | Third and subsequent Construction Poster violationClass 1 | N | $500 | $500 |
| 44 RCNY § 2-07(a)(3) | Third and subsequent Construction Poster violationClass 2 | N | $300 | $300 |
| 44 RCNY § 2-07(b)(2) | First Worker Notice violationClass 1 | Y | $50 | $50 |
| 44 RCNY § 2-07(b)(3) | First Worker Notice violationClass 2 | Y | $30 | $30 |
| 44 RCNY § 2-07(b)(2) | Second Worker Notice violationClass 1 | N | $250 | $250 |
| 44 RCNY § 2-07(b)(3) | Second Worker Notice violationClass 2 | N | $150 | $150 |
| 44 RCNY § 2-07(b)(2) | Third and subsequent Worker Notice violationClass 1 | N | $500 | $500 |
| 44 RCNY § 2-07(b)(3) | Third and subsequent Worker Notice violationClass 2 | N | $300 | $300 |
| 44 RCNY § 2-07(c)(2) | First pay stub violation for 1 - 9 weeks Class 1 | N | $50 | $50 |
| 44 RCNY § 2-07(c)(2) | First pay stub violation for 10 - 24 weeksClass 1 | N | $500 | $500 |
| 44 RCNY § 2-07(c)(2) | First pay stub violation 25 - 49 weeks Class 1 | N | $1,250 | $1,250 |
| 44 RCNY § 2-07(c)(2) | First pay stub violation for 50 - 52 weeksClass 1 | N | $2,500 | $2,500 |
| 44 RCNY § 2-07(c)(3) | First pay stub violation for 1 - 9 weeksClass 2 | Y | $30 | $30 |
| 44 RCNY § 2-07(c)(3) | First pay stub violation for 10 - 24 weeksClass 2 | Y | $300 | $300 |
| 44 RCNY § 2-07(c)(3) | First pay stub violation for 25 - 49 weeksClass 2 | Y | $750 | $750 |
| 44 RCNY § 2-07(c)(3) | First pay stub violation for 50 - 52 weeksClass 2 | Y | $1,500 | $1,500 |
| 44 RCNY § 2-07(c)(2) | Second pay stub violation for 1 - 9 weeksClass 1 | N | $250 | $250 |
| 44 RCNY § 2-07(c)(2) | Second pay stub violation for 10 - 24 weeksClass 1 | N | $2,500 | $2,500 |
| 44 RCNY § 2-07(c)(2) | Second pay stub violation for 25 - 49 weeksClass 1 | N | $6,250 | $6,250 |
| 44 RCNY § 2-07(c)(2) | Second pay stub violation for 50 - 52 weeksClass 1 | N | $12,500 | $12,500 |
| 44 RCNY § 2-07(c)(3) | Second pay stub violation for 1 - 9 weeks Class 2 | N | $150 | $150 |
| 44 RCNY § 2-07(c)(3) | Second pay stub violation for 10 - 24 weeksClass 2 | N | $1,500 | $1,500 |
| 44 RCNY § 2-07(c)(3) | Second pay stub violation for 25 - 49 weeksClass 2 | N | $3,750 | $3,750 |
| 44 RCNY § 2-07(c)(3) | Second pay stub violation for 50 - 52 weeksClass 2 | N | $7,500 | $7,500 |
| 44 RCNY § 2-07(c)(2) | Third and subsequent pay stub violation for 1 - 9 weeksClass 1 | N | $500 | $500 |
| 44 RCNY § 2-07(c)(2) | Third and subsequent pay stub violation for 10 - 24 weeksClass 1 | N | $5,000 | $5,000 |
| 44 RCNY § 2-07(c)(2) | Third and subsequent pay stub violation for 25 - 49 weeksClass 1 | N | $12,500 | $12,500 |
| 44 RCNY § 2-07(c)(2) | Third and subsequent pay stub violation for 50 - 52 weeksClass 1 | N | $25,000 | $25,000 |
| 44 RCNY § 2-07(c)(3) | Third and subsequent pay stub violation for 1 - 9 weeks Class 2 | N | $300 | $300 |
| 44 RCNY § 2-07(c)(3) | Third and subsequent pay stub violation for 10 - 24 weeksClass 2 | N | $3,000 | $3,000 |
| 44 RCNY § 2-07(c)(3) | Third and subsequent pay stub violation for 25 - 49 weeksClass 2 | N | $7,500 | $7,500 |
| 44 RCNY § 2-07(c)(3) | Third and subsequent pay stub violation for 50 - 52 weeksClass 2 | N | $15,000 | $15,000 |
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§ 3-01 Applicability.
These regulations apply to Comptroller investigations, determinations, hearings, reports and recommendations, and orders under New York state real property tax law § 421-a(16)(c) and to Comptroller investigations, determinations, hearings and reports and recommendations made to City agencies under the living wage provisions of New York City Administrative Code § 6-109.
§ 3-02 Definitions.
As used in this chapter, the following terms have the following meanings. Capitalized terms that are not specifically defined in this chapter have the meanings set forth in the laws designated in 44 RCNY § 3-01.
Bureau. “Bureau” means the comptroller’s bureau of labor law. Certified Payroll Report. “Certified Payroll Report” means a weekly payroll record in the form provided on the comptroller’s website.
Complaining Worker. “Complaining Worker” means a worker who has filed a written complaint for the underpayment of Wages and Supplements with the Bureau.
Comptroller. “Comptroller” means the City of New York comptroller or the comptroller’s designee.
Covered Employer. “Covered Employer” means any person or entity subject to liability for Wages and Supplements under real property tax law § 421-a(16)(c) or New York City Administrative Code § 6-109.
Covered Work. “Covered Work” means any work that is subject to the requirements of real property tax law § 421-a(16)(c) or New York City Administrative Code § 6-109.
Covered Worker. “Covered Worker” means any person who performs Covered Work.
Daily Sign-In Log. “Daily Sign-In Log” means a daily attendance record in the form provided on the comptroller’s website.
Document. “Document” means records in any form or electronically stored information, including writings, graphs, charts and other data or data compilations stored in any medium.
Wage and Supplement. “Wage and Supplement” means Living Wage and Health Benefits or Health Benefits Supplement Rate as defined in New York City Administrative Code § 6-109(b), or minimum average hourly wage as set forth in real property tax law § 421-a(16)(c).
Worker Notice Poster. “Worker Notice Poster” means a notice in the form provided on the comptroller’s website detailing the Wage and Supplement due for Covered Work performed on a particular project, contract or building.
§ 3-03 Wage and Supplement Required Records.
(a) Covered Employers must maintain Documents consisting of the following records for six years after Covered Work is performed, must preserve the records immediately when notified by the Bureau of a compliance investigation, and must produce true copies of all such records within the time requested by the Bureau after notice of the right to counsel described in 44 RCNY § 3-04(f):
1) Contracts and subcontracts for Covered Work;
2) Certified Payroll Reports for Covered Work;
3) Daily Sign-In Logs for Covered Work;
4) Weekly payroll records, registers or journals required by labor law Section 195;
5) All Documents and records concerning the cost of Health Benefits or Employee Benefits provided to Covered Workers, including but not limited to invoices, account statements, benefits remittance reports and benefits plan descriptions; and
6) All federal and state employment tax returns and filings, including but not limited to quarterly combined withholding, wage reporting, and unemployment insurance form NYS-45 returns; employers’ quarterly Federal tax form 941 returns; wage and tax form W-2 statements; and miscellaneous income form 1099 statements.
1) Identify all Covered Employers that performed Covered Work on the project;
2) For each Covered Employer, set forth the completion date for its Covered Work on the project;
3) For each Covered Employer, set forth the date that its Contractor Certified Payroll Report was submitted to the Independent Monitor, or state that no Contractor Certified Payroll Report was submitted;
4) For each Covered Employer, calculate and set forth the total hours of Covered Work performed by all Covered Workers it employed on the project, based upon its Contractor Certified Payroll Report;
5) For each Covered Employer, calculate and set forth the total Wages paid for Covered Work to all Covered Workers it employed on the project, based upon its Contractor Certified Payroll Report;
6) Calculate and set forth the total hours of Covered Work performed on the project, based upon the Contractor Certified Payroll Reports;
7) Calculate and set forth the total Wages paid for all Covered Work on the project, based upon the Contractor Certified Payroll Reports;
8) Calculate and set forth the Average Hourly Wage paid for all Covered Work on the project; and
9) If the Average Hourly Wage is less than the applicable minimum average hourly wage as set forth in real property tax law § 421-a(16)(c), then calculate and set forth the aggregate amount of the deficiency for all Covered Workers on the project.
§ 3-04 Compliance Investigations, Compliance Determinations, Settlements, Interest and Penalties.
(a) The Bureau investigates and determines underpayments of Living Wage and Health Benefits or Health Benefits Supplement Rate by Covered Employers under New York City Administrative Code § 6-109 for Covered Work performed within the three-year period immediately preceding the earlier of: (i) the commencement of the compliance investigation by the Bureau, or (ii) the filing of a written complaint with the Bureau by a Covered Worker, the representative of a Covered Worker or a labor union with an interest in the Covered Work at issue.
(1) The Bureau assesses interest due on the underpayment of Wages and Supplements from the date of underpayment at the rate of interest then in effect as prescribed by the superintendent of banks under Section fourteen-a of the banking law per annum, and such interest cannot be waived by stipulation of settlement.
(2) Upon resolution of a compliance determination by stipulation of settlement, the Bureau may reduce the rate of interest on the underpayment of Wages and Supplements to a rate of interest not less than six percent, based upon due consideration of the size of the Covered Employer’s business, the good faith of the Covered Employer, the gravity of the violation, the history of previous violations and the failure to comply with recordkeeping or other non-wage requirements.
§ 3-05 Hearings, Reports and Recommendations and Orders.
(a) Designation. All hearings required by New York real property tax law § 421-a(16)(c) and New York City Administrative Code § 6-109 are held by the office of administrative trials and hearings trials division.
(1) Failure of a Covered Employer to provide any information or Document requested by the Bureau in a timely manner as set forth in 44 RCNY § 3-04(g) and (h) may be grounds for preclusion of that Document or drawing of an adverse inference at the trial upon motion to the administrative law judge.
(2) No party may seek to introduce any testimonial, documentary or other evidence concerning the immigration status of Covered Workers at the trial, including but not limited to information about their social security or individual taxpayer identification numbers, except upon motion to the administrative law judge for good cause shown.
(1) Within a reasonable time after the conclusion of the hearing, the administrative law judge issues a written report, including proposed findings of fact and conclusions of law, and recommendation as to the order.
(2) In cases brought under real property tax law § 421-a(16)(c), the administrative law judge forwards the report and recommendation to the Comptroller for consideration and the Comptroller issues an order.
(3) In cases brought under New York City Administrative Code § 6-109, the administrative law judge forwards the report and recommendation to the contracting agency for consideration, and the contracting agency issues an order.
(1) The Comptroller may, on his or her own initiative or on application duly made, on notice to all parties: (i) request further information or briefing on any relevant issue or (ii) provide copies of any recalculation of Wages and Supplements underpayment and interest, and request comments from the parties to the hearing before issuing an order. Such request and any responses are part of the record.
(2) The Comptroller may adopt, reject or modify the administrative law judge’s report and recommendation when issuing an order; such order is to be based exclusively upon the record as a whole, including facts of which official notice has been taken.
(3) The Bureau files the order of the Comptroller and serves a notice of filing, with copy of the order, on every party.
§ 4-01 Final Audit Report.
(a) After the receipt of the hospital's objections to the draft audit report, or if no objections have been received within 30 days after mailing the draft audit report to the hospital, a final report shall be issued. In preparing the final audit report, the Bureau of Financial Audit (BFA) of the New York City Comptroller's Office (Comptroller) shall consider the objections, any supporting documents and materials submitted therewith, the draft audit report, and any additional material which may become available.
(1) of the nature and amount of the audit findings, the basis for the action and the statutory, regulatory or other legal basis therefore;
(2) of the action which will be taken;
(3) that the withholding action will occur 35 days from the date of the final audit report unless an appeal is taken;
(4) of the right to appeal the administrative action by requesting a hearing;
(5) the name, title, address and telephone number of the BFA’s Director whom the hospital must contact to request a hearing;
(6) that a request for a hearing must be made in writing and postmarked or delivered within 30 days of receipt of the final audit report which shall be presumed to be five days from the date of mailing; and
(7) that the request may not address issues regarding the:
(i) statistical sampling and extrapolation methodologies used to determine the disallowances;
(ii) disallowances where patient account records to substantiate billings were missing at the time of the audit; or
(iii) any issue that could have been raised, but was not, in a written response to the draft report.
§ 4-02 Request for Hearing.
(a) A hospital has the right to an administrative hearing to challenge the final audit report and may request such a hearing within 30 days of receipt of the final audit report which shall be presumed to be five days from the date of mailing.
(1) the specific item or items to which objections are made;
(2) the factual basis for the objections; and
(3) any legal authority for the objections.
(1) A request for a hearing shall be considered withdrawn only upon receipt of a written statement or by the making of a statement on the record at the hearing by the hospital or by the hospital’s attorney or representative.
(2) A request for a hearing shall be considered abandoned if, without good cause, neither the hospital nor the hospital’s attorney or representative appears at the time and place designated for the hearing.
(1) have OATH designate an Administrative Law Judge to hear, report and recommend; and establish a time and place for such hearing;
(2) notify the hospital of the time and place of such hearing at least 15 days before the commencement of the hearing;
(3) include in a notice of hearing a statement:
(i) of those issues which are controverted and to be determined at the hearing;
(ii) of the legal authority and jurisdiction under which the hearing is to be held, and a reference to the particular sections of the law and rules involved;
(iii) of the hospital’s right to be represented by an attorney or other representative, to cross-examination, to present evidence and produce witnesses on the hospital’s own behalf; and
(iv) that the burden of proof at the hearing shall be on the hospital.
§ 4-03 The Hearing Officer.
The hearing shall be conducted by an Administrative Law Judge employed by OATH for that purpose. The judge shall have all the powers conferred by law to administer oaths, issue subpoenas, require the attendance of witnesses and production of records, rule upon requests for adjournment, rule upon evidentiary matters and to otherwise regulate the hearing, observe requirements of due process and effectuate the purposes and provisions of applicable law.
§ 4-04 Authorization of Representative.
An individual, other than an attorney, representing the hospital, shall have written authorization signed by an officer or director of the hospital.
§ 4-05 Conduct of Hearings; Rights of Hospital.
(a) The judge shall preside over the hearing, make all procedural rulings, and make a statement on the record describing the nature of the proceedings, the issues, and the manner in which the hearing will be conducted.
(1) statistical sampling and extrapolation methodologies used to determine the disallowances;
(2) disallowances where patient account records to substantiate billings were missing at the time of the audit; or
(3) any issue that could have been raised, but was not, in a written response to the draft report.
§ 4-06 Decision After Hearing.
(a) The hearing decision shall be made and issued by the Comptroller and shall be based exclusively on the record and transcript of the hearing. In reaching a decision, the Comptroller may review the memoranda of law of the parties, if any. The Comptroller shall not be bound by the judge's recommendation but may adopt, reject or modify such recommendation, in whole or in part, as may be appropriate. The decision shall be in writing and shall state reasons for the determinations and, when appropriate, direct specific action.
§ 4-07 Recoupment of Overpayments.
Upon determination that overpayments have been made, the BFA shall transmit a “Withholding Request for Provider Recoupment Initiated by the Local District” to NYSDSS. NYSDSS’ fiscal agent shall recover overpayments by withholding against the hospital’s current or future payments on claims submitted or a percentage of payments otherwise payable on such claims, at the option of NYSDSS. Such withholding may be made at any time after the issuance of a decision after hearing or, if a hearing has not been requested in accordance with this chapter, at any time after expiration of the time period allowed (30 days) for the making of such request.
§ 5-01 Scope.
These Rules and Regulations shall govern the procedures by which the public may submit petitions for rulemaking to the Comptroller pursuant to § 1043(f) of the New York City Charter (City Administrative Procedures Act).
§ 5-02 Definitions.
Person. “Person” shall mean an individual, partnership, corporation or other legal entity, and any individual or entity acting in a fiduciary or representative capacity.
Petition. “Petition” shall mean a request or application for any agency to adopt a rule.
Petitioner. “Petitioner” shall mean the person who files a petition.
Rule. “Rule” shall have the meaning set forth in § 1041(5) of the City Administrative Procedure Act and shall mean generally any statement or communication of general applicability that
§ 5-03 Procedures for Submitting Petitions; Responses to Petitions.
(a) Any person may petition the Comptroller to consider the adoption of a rule. The petition must contain the following information:
(1) The rule to be considered, with proposed language for adoption;
(2) A statement of the Comptroller’s authority to promulgate the rule and its purpose; (3) Petitioner’s argument(s) in support of adoption of the rule;
(4) The period of time the rule should be in effect;
(5) The name, address and telephone number of the petitioner or his or her authorized representative;
(6) The signature of petitioner or his or her representative.
§ 5-04 Public Notice; Promulgation of Rules and Regulations.
(a) The Comptroller shall publicize by posting in a conspicuous location:
(1) these procedures for submitting petitions for rulemaking and
(2) the name, title, business address and telephone number of the officer designated to receive petitions, who shall be Sue Ellen Dodell, Deputy General Counsel, 1 Centre Street, Room 518, New York, NY 10007, (212) 669-7778.
§ 5-05 Severability.
If any provision of these Rules and Regulations or the application thereof to any person or circumstances is adjudged invalid by a court of competent jurisdiction, such determination shall not affect or impair the validity of the other provisions of these Rules and Regulations or the application thereof to other persons and circumstances.
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