Legislative Issues

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Welcome to 2008!  The 2008 Legislative Session certainly wasn’t dull. David Paterson became the new Governor in March and at the end of the Session, Dean Skelos of Long Island replaced Joe Bruno as the Majority Leader of the New York State Senate. Except for the significant changes in the Wicks Law during the State Budget enactment in April, the Legislative Session did not have a real negative impact on the construction industry. Below, you can read about this year's issues and the actions GBC took on them. We will update this page as new information becomes available during the second half of 2008.

Construction Legislative Issues GBC Is Following in 2007-2008

GBC’s bi-monthly Reports have been noting individual bills since the beginning of the session and subsequent actions by the Governor.  Some of those bills are listed below.  

For complete information on any current bill, visit the Assembly website at http://assembly.state.ny.us/, or the Senate website at http://senate.state.ny.us/ .  Both websites allow you to search for a bill and find its text and current status. Most of the bills listed below are already linked to the full information on the Assembly website.


GBC-Sponsored Bills 

S.4317 (Volker) / A.2528 (Morelle) is the longstanding bill endorsed by many to reform Labor Law 240 when and where a contractor can show he had acted safely. While this issue saw no movement, the business, professional and institutional community did reorganize its tort reform effort with the development of a reconstituted effort now known as NYTortReformNow.org. Several groups, including the GBC, are involved in the effort.

S.2011 (Winner) / A.3832 (Schimminger) 
Requires that timely notice of allegations of prevailing wage violations be given to contractors. 
Click here to read GBC's Memo in Support from last session.

S.1718 (Winner) / A.870 (Destito) 
Requires quality performance and payment bonds on public work. 

S.1717 (Winner) / A.860 (Destito) 
Provides standards and procedures for determining whether or not a contractor is responsible for purposes of public construction projects.

S.1962 (Golden) 
The bill would modify the New York City School Construction Authority’s current prequalification powers to ensure that all bidders prequalified to bid on contracts for construction for the authority are able to bid for that work and are not shut out of the process as a result of the current statutory provision to arbitrarily allow the SCA to limit the bidding to five parties. 

S.2725 (Golden)
Clarified on SCA work that a subcontractor claiming payment issues with the general contractor cannot utilize both the lien withholding rights under the law and the complaint provisions to the SCA, thus creating a double withholding. The bill requires the sub to use one of the two procedures, not both. 

S.2153 (Libous) / A.9366 (Kavanagh)
Requires public contracts to include a clause authorizing contractors to recover damages for delay for itself as well as on behalf of subcontractors or materialmen. This bill passed the Senate in 2007 but saw no further action.


Subcontractor Bills to Watch 

S.1659 (Hannon) / A.9539 (Cusick)
A bill to allow the use of a post office box number when dealing with lien issues.
GBC position: No position

S.1660 (Hannon) / A.9538 (Cusick)
Provides for a reasonable amount of construction contract sum on a private project to be deposited in a separate interest-bearing escrow account with a third-party escrow agent. 
GBC position: Support

S.1917 (Hannon) / A.9639 (Cusick)
Makes provisions in contracts requiring subcontractors or contractors to indemnify certain parties for damages void and unenforceable. 
GBC position: New bill's terms to be reviewed.  Opposed last session, especially given the burdensome provisions of 240.  

S.2136 (Hannon) / A.9541 (Cusick)
A bill to amend the notice provisions of the State Finance Law in relation to actions on payment bonds.  
GBC position: Oppose in its current form, but working on amendments.

S.2137 (Hannon) / A.9540 (Cusick) 
Allows partial payment to contractors on public work projects upon completion of fifty percent of the project. 
GBC position: Oppose in current form, but offering an alternative idea.

S.5272 (DeFrancisco) / A.2687 (Cusick)
Design delegation reform.
GBC position: Support.

S.6694 (Hannon) / A.9638 (Cusick)
Would make null and void contract language that requires the subcontractor to exhaust his lien and other legal rights before filing a claim or commencing an action on a payment bond.
GBC position: Oppose and have suggested amendments.

S.8422-A (Maltese)/A.11520-A (Rules-John)
This bill sought to amend Article 35-E of the General Business Law enacted in 2002 at the behest of the carpenters union and the drywall subcontractors to establish guidelines for prompt payment from owner to contractor to subcontractor on private work. This bill was an effort to significantly amend the bill and remove many of the safeguards and negotiated provisions of the original law. It died in the Senate and was held in the Assembly Codes Committee.


Wicks Law "Reform" and Alternative Delivery Issues

S.6807-C (Budget) / A.9807-C (Budget)
In the negotiations for the 2008-09 State Budget, the Governor and Legislative Leaders agreed to add significant Wicks Law reform identical to the terms first introduced late in 2007. See the next bill for details.

S.6146-A (Rules) / A.9204 (John) 
GBC, throughout its 50-year history, has sought repeal or reform of New York State’s inflexible separate contract law on public work – commonly referred to as the Wicks Law. In 2007 the Governor urged reform and eventually negotiated a “reform” bill that was agreed to by the legislative leaders. The bill passed the Assembly, but was held in the Senate Rules Committee as other unrelated political issues take precedent. The initial reform sought was a simple increase in the $50,000 project threshold. As the Legislative Session progressed, other unrelated labor issues were added to the bill that effectively, in the opinion of the GBC, negated any modest improvements in the status quo. In the end, GBC opposed the bill. Our memo and an op-ed piece done with the subcontractors explain the GBC’s position. 

S.8523 (Rules) / A.11661 (Rules Destito Morelle) was introduced at the behest of the GBC and others to carve out or repeal the prequalification provisions found in the passed Wicks bill so they would apply only to New York City. The bill passed the Senate but died in the Assembly. Another bill to delay the apprenticeship provisions of the new law suffered the same fate.

S.7455 (Flanagan) / A.11022 (Brodsky) would allow the Dormitory Authority to utilize the construction management at risk method on projects in excess of $20 million in value. The bill passed the Senate. GBC supported and had input in the development of the bill.

S.5150 (LaValle) / A.2178 (Canestrari) would clarify that when design-build contracts are done in New York State, the design firm must be independent of the contracting firm. GBC supported.


Labor

Paid Family Leave legislation would have established a requirement in the disability benefit system providing for paid family leave based on premiums paid by the worker. This state law would differ from the Federal Law in this area and could lead to real disruption in the workplace. The bill did not pass. The Business Council of New York State worked hard to defeat this bill. Go to the link below to see more on this issue and other business community legislative issues championed by the Business Council.

Prevailing Wage Bills

As in almost every Legislative Session, a series of proposals to toughen the prevailing wage laws on public work were introduced. While some passed the Assembly, few passed the Senate. Only one minor bill did pass, and its confusing terms must be reviewed by the Governor. See S.7180 below.

S.6797 (Marcellino) / A.6598-A (John) - Prevailing Wages on Offsite Custom Fabrication
This bill would require any custom fabricated work for a public works project done off site to be paid under prevailing wages. GBC's memo in opposition is provided.
GBC Position:  Oppose

S.3184-A (Stewart-Cousins) / A.787 (Latimer) – Prevailing Wage Sign In-Out
This would establish and elaborate a burdensome sign in – sign out system on public works projects. It saw no action.
GBC Position: Oppose

S.6077-A (Maziarz) / A.2720-A (John) – Pattern of Subcontracting
This would debar contractors where it could be proven without any standards established in the bill that a contractor regularly subcontracted to a subcontractor found violating the prevailing wage laws. This bill was vetoed in 2006. It passed the Assembly, but died in the Senate.
GBC Position: Oppose

S.6078 (Maziarz) / A.2723 (John) – Mandatory Written Subcontracts
This would require every subcontract to be in written form and include certain items. Some of the items required make little sense or are impractical.
GBC Position: Oppose

S.7180 (Robach) / A.2457 (John) – Payment Bond Required on Work with a “Permit”
This would require that a payment bond be in place where there is a “permit” and prevailing wages are required. Unfortunately, the terms of the bill are confusing and overreaching. The bill did pass both houses and will go to the Governor for his consideration.
GBC Position: Oppose in its current form

S.7916 (Padavan) / A.10774 (Gianaris) – Prevailing Wages on Utility Work
This would require all utility work done in a public street to be done by utility companies and any private contractors or subcontractors paying prevailing wages. This bill passed both houses and will be considered by the Governor.
GBC Position: No position

IDAs Reforms and Prevailing Wages
IDAs are an important economic development tool generating a lot of construction activity.  There is a strong effort to reform the operation of IDAs, extend their power to fund nonprofit projects and apply living and prevailing wages to these projects. Application of prevailing wages will have a serious impact on the cost of many IDA projects and may stop several of them. A bill on this matter died at the end of the the 2008 session.
GBC Position: Oppose the prevailing wage aspects of this bill.


New York City Building Department and Other Regulatory Issues

During the early part of 2008 there was much attention to Building Department, crane and other regulatory issues in the City of New York. A series of bills on these subjects was introduced, but few passed. A memo to the GBC NYC Building Department Task Force summarizing the bills can be read here.


The Business Council of New York State 

GBC often defers to The Business Council of New York State to advocate on issues that affect not only the construction community, but also the citizens of New York State as a whole. Such issues currently include workers' compensation reform, outsourcing, taxes, the Empire Zones, and a host of other business issues. Visit The Business Council's website at http://www.bcnys.org for more information. Their 2008 Legislative Wrapup can be found at http://www.bcnys.org/inside/gac/2008/sessionwrapup.htm.