§ 6-109.1 Prevailing wage for security guards and fire guards at city-contracted shelters.
AC § 6-109.1
a. Definitions. For purposes of this section, the following terms have the following meanings: Commissioner. The term "commissioner" means the commissioner of homeless services. Comptroller. The term "comptroller" means the comptroller of the city. Covered employer. The term "covered employer" means a shelter operator or a covered guard service company. Covered guard. The term "covered guard" means a security guard or a fire guard. Covered guard service company. The term "covered guard service company" means a person that has entered into an approved subcontract under a shelter contract, and pursuant to such subcontract: 1. provides the services of fire guards; or 2. provides security services, and is licensed to provide the services of security guards under contract to other entities pursuant to article 7 of the general business law. Department. The term "department" means the department of homeless services. Fire guard. The term "fire guard" has the same meaning as provided under section 202 of the fire code. Prevailing wage. The term "prevailing wage" means the rate of wage and supplemental benefits paid in the locality to workers in the same trade or occupation and determined by the comptroller in a manner consistent with the provisions of section 234 of the labor law. Security guard. The term "security guard" means any unarmed individual with a current and valid license issued in accordance with article 7-A of the general business law, authorizing such individual to perform security services in the state of New York. Security services. The term "security services" means the unarmed protection of individuals and/or property from harm or other unlawful activity, as well as prevention, deterrence, observation, detection and/or reporting to government agencies of unlawful activity or conditions that present a risk to the safety of shelter residents, staff or the public. Shelter. The term "shelter" means temporary emergency housing provided to homeless individuals by the department or by a another person through a contract with the department. Shelter contract. The term "shelter contract" means any written agreement whereby the department is committed to expend and does expend funds and the principal purpose of such agreement is to operate a shelter. Shelter operator. The term "shelter operator" means any person that enters into a shelter contract with the department. b. Prevailing wage in city-contracted shelters required.
1.A shelter operator or covered guard service company that employs covered guards at a shelter shall pay such guards no less than the prevailing wage determined in a manner consistent with the requirements of section 234 of the labor law. The obligation of a shelter operator or covered guard service company to pay prevailing supplements may be discharged by furnishing any equivalent combinations of fringe benefits or by making equivalent or differential payments in cash under rules and regulations, if any, promulgated pursuant to paragraph 1 of subdivision c of this section.
2.Every covered employer that employs a covered guard to perform services pursuant to such shelter contract shall provide to the comptroller and the commissioner an annual certification executed under penalty of perjury that all such covered guards subject to the requirements of this subdivision have been paid the prevailing wage, provided that a shelter contract may include specifications setting forth a process for a shelter operator to collect such certifications from any covered guard service companies and transmit such certifications to the comptroller and the commissioner. Such certification shall include a record of the days and hours worked and the wages and benefits paid to each covered guard employed at the shelter. Such certification shall be certified by the chief executive or chief financial officer of the covered employer or the designee of any such person. A material inaccuracy in such certification, or a failure to provide such certification, shall constitute a violation of this section by the party that has violation of paragraph.
3.Each covered employer shall maintain original payroll records for each of the covered guards it employs to perform services pursuant to such shelter contract reflecting the days and hours worked, and the wages paid and benefits paid for such hours worked, and shall retain such records for the duration of its provision of services under a shelter contract and at least six years after the end of the contract term. Failure to maintain such records as required shall create a rebuttable presumption that the covered guards were not paid the wages and benefits required under this section. Covered guard services companies shall provide copies of such records to relevant shelter operators. Upon the request of the comptroller or the commissioner, a covered employer shall provide a certified original payroll record. The comptroller or the commissioner may inspect such records to verify the certifications submitted pursuant to paragraph 2 of this subdivision, consistent with applicable law.
4.A shelter operator subject to the requirements of this section shall post in a prominent and accessible place at every shelter a copy of a written notice, prepared by the comptroller, detailing the wages, benefits, and other protections to which covered guards are entitled under this section. Such notice shall also provide the name, address and telephone number of the comptroller and a statement advising such covered guards that if they have been paid less that the prevailing wage, they may notify the comptroller and request an investigation. Such notice shall be provided in English, Spanish and any other language that the shelter operator is aware is the primary language of a significant portion of a covered employer's covered guards. Such notice shall remain posted for the duration of the shelter contract and shall be adjusted periodically to reflect the current prevailing wage for covered guards. Each covered employer shall provide a copy of such notice to each covered guard subject to paragraph 1 of this subdivision. The comptroller shall provide the commissioner with sample written notices explaining the rights of covered guards and covered employers' obligations under this section, and the commissioner shall in turn provide those written notices to shelter operators. c. Implementation and enforcement.
5.Before issuing an order, determination, or any other disposition, the mayor, or the comptroller if the mayor has delegated the function pursuant to this subdivision, (a) shall give notice thereof, together with a copy of the complaint, which notice shall be served personally or by mail on any person affected thereby and (b) may negotiate an agreed upon stipulation of settlement or refer the matter to the office of administrative trials and hearings, or other appropriate agency or tribunal, for a hearing and recommended disposition. Such covered employer shall be notified of a hearing date by the office of administrative trials and hearings, or other appropriate agency or tribunal, and shall have the opportunity to be heard in respect to such matters.
6.In an investigation conducted under the provisions of this section, the inquiry of the comptroller shall not extend to work performed more than three years prior to the filing of the complaint, or the commencement of such investigation, whichever is earlier.
7.
(a)Upon stipulation of settlement or issuance of an order, determination, or other disposition that a covered employer has violated this section, pursuant to paragraph 4 of this subdivision, the department shall pay to such covered guards from any trust money withheld pursuant to paragraph 3 of this subdivision the amounts specified in such order, determination, or other disposition and shall deduct from such trust monies an amount equal to any civil penalty specified in such order, determination, or other disposition, provided that no review proceeding pursuant to article 78 of the civil practice law and rules or any other law challenging such order, determination, or other disposition has been commenced and the time for initiation of such proceeding has expired. If such a challenge is made, the money withheld shall remain in trust pending final disposition of the review proceeding. The department shall pay any additional withheld trust monies to the shelter operator in accordance with such order, determination, or other disposition.
(b)If the amounts specified in such order, determination, or other disposition to be paid to covered guards or as a civil penalty exceed the value of the funds withheld pursuant to paragraph 3 of this subdivision, or if no such withholding was made pursuant to such paragraph, the department shall deduct the outstanding amounts from monies subsequently earned under the shelter contract or any other existing or future shelter contract with the shelter operator and pay such monies to the applicable guard or to the general fund as a civil penalty, unless the covered employer found to have violated this section provides proof sufficient to the commissioner that such covered employer has made such payments to covered guards in accordance with such order.
8.The comptroller shall be authorized to contract with non-governmental agencies to investigate possible violations of this section. Where a covered employer is found to have violated the requirements of this section, the covered employer shall be liable to the city for costs incurred in investigating and prosecuting the violation.
9.In circumstances where a shelter operator fails to perform in accordance with any of the requirements of this section and there is a continued need for shelter services, the commissioner may through existing procurement mechanisms obtain from another source the required services as specified in the original shelter contract, or any part thereof, and may charge the non-performing shelter operator for any difference in price resulting from the alternative arrangements, may assess any administrative charge established by the commissioner, and may, as appropriate, invoke such other sanctions as are available under the shelter contract and applicable law. d. Enforcement by private right of action.
