§ 2-05 Compliance Investigations, Compliance Determinations, Settlements, Interest and Penalties.
RCNY § 2-05
(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.
(b)The Bureau investigates and determines underpayments of Prevailing Wages and Supplements 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. Compliance investigations concerning underpayment of Prevailing Wages and Supplements for Building Service Employees that are also covered by labor law article nine are governed by the provisions of 44 RCNY § 2-05(a).
(c)The Bureau may decline to investigate and determine underpayments of Prevailing Wages and/or Supplements if the Complaining Worker or the Complaining Worker's representative has participated in any other legal proceeding to recover the same unpaid Prevailing Wages and/or Supplements that are the subject of the complaint.
(d)A private settlement between a Covered Worker and a Covered Employer, or the execution of a release by a Covered Worker in favor of a Covered Employer, does not preclude investigation and determination as to underpayment of Prevailing Wages and/or Supplements by the Bureau.
(e)The Bureau does not disclose the names or identities of Complaining Workers unless necessary for settlement or hearing.
(f)Covered Employers under investigation by the Bureau have the right to be represented by counsel at their own expense. Covered Employers are notified of the right to counsel at the commencement of a compliance investigation in which records, described in 44 RCNY §§ 2-04(c), 2-05 and 2-06 may be demanded. Counsel must file a written notice of appearance with the Bureau. All subsequent notices, Documents or other communications are sent to such counsel and deemed service upon the Covered Employer.
(g)During the compliance investigation, the Covered Employer must provide all relevant information and Documents within the time requested by the Bureau, including but not limited to the records required by 44 RCNY § 2-04(c). Upon completion of a compliance investigation with a finding of violation, the Bureau sends a written thirty day notice to the Covered Employer that it will begin calculations of Prevailing Wage and/or Supplement underpayments for a determination. In preparing its determination, the Bureau will not consider any information or Documents requested by the Bureau and not provided by the Covered Employer within thirty days of the written notice.
(h)If a Covered Employer failed to keep or provide to the Bureau in a timely manner accurate records as required by 44 RCNY § 2-04(c), the Bureau is permitted to calculate underpayments of Prevailing Wages and/or Supplements due to Covered Workers by using the best available evidence and the burden shifts to the Covered Employer to negate the reasonableness of the Bureau's calculations. In such case, the amount and extent of underpayment is a matter of reasonable inference and may be based upon the statements of Covered Workers.
(i)The Bureau may resolve a compliance determination by stipulation of settlement with a Covered Employer, which includes: (i) findings and assessments as to the underpayment of Prevailing Wages and/or Supplements, (ii) findings as to the willfulness of the violation, (iii) assessments of interest and, (iv) in cases brought under labor law articles eight and nine and New York City Administrative Code §§ 6-109 and 19-142 only, assessment of a civil penalty.
(j)Stipulations of settlement resolving compliance determinations under labor law articles eight and nine and New York City Administrative Code § 19-142 are endorsed by the Comptroller and have the effect of an order of the Fiscal Officer under those laws. Stipulations of settlement resolving compliance investigations under real property tax law § 421-a(8), (16)(h) and (17)(g) must be endorsed by the New York City department of housing preservation and development in order to have final effect under that statute. Stipulations of settlement resolving compliance investigations under New York City Administrative Code § 6-109 must be endorsed by the contracting agency in order to have final effect under that statute.
(k)Interest.
(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.
(l)Civil Penalty.
(m)The Bureau sends written notice to a Complaining Worker or the Complaining Worker's representative upon closure of a compliance investigation without a finding of violation. This notice of a final determination, binding on the Complaining Worker, commences any applicable time limits under article 78 of the New York State civil practice law and rules. If the Covered Employer under investigation has been notified of a compliance investigation, the Bureau sends written notice of closure without a finding of violation to the Covered Employer. (Amended City Record 6/29/2018, eff. 7/29/2018)
