Article 8 (Construction): Frequently Asked Questions
Complaints, Investigations, Hearings, Stipulations,
Appeals and Penalties
- Q: Who may file a prevailing wage complaint? Are complaints kept confidential?
- Q: How is a complaint filed and with whom?
- Q: How is a prevailing wage investigation commenced? What records will DOL request from a contractor?
- Q: When will an audit normally be commenced?
- Q: What is a Stipulation?
- Q: In what circumstances would an administrative hearing be held?
- Q: Once the Commissioner issues a final Order and Determination, what is the process for appealing this determination?
- Q: What is a "willful" violation and how is willfulness determined?
- Q: What penalties may be assessed against a contractor for underpayment of prevailing wages?
- Q: What is the liability of a prime contractor for a subcontractor’s underpayment?
Q: Who may file a prevailing wage complaint? Are complaints kept confidential?
A: Any person interested or any employee organization or the Commissioner of Labor on his or her own initiative may cause a compliance investigation to be made to determine whether the contractor or a subcontractor has paid the prevailing rate of wages and supplements. During an investigation, all efforts are made to keep the name of the complainant confidential.
Q: How is a prevailing wage investigation commenced? What records will DOL request from a contractor?
A: Subsequent to its receipt of a complaint or on its own initiative, the Bureau of Public Work will request certified payroll records, daily time records, proof of payment of wages, i.e., cancelled checks and proof of the payment and/or providing of supplemental benefits.
Q: Once the Commissioner issues a final Order and Determination, what is the process for appealing this determination?
A: Any aggrieved party may file an appeal pursuant to Article 78 of the Civil Practice Law within 30 days from the date said determination was filed. Said proceeding shall be commenced directly in the State Appellate Division of the Supreme Court.
Q: What is a "willful" violation and how is willfulness determined?
A: For purposes of paragraph 6 of subdivision 3 of Section 220-b of the Labor Law which pertains to the debarment of contractors from performing public work, a contractor has willfully violated Article 8 if it knows or should have known that it failed to pay the prevailing rates of wages and supplements. There are several circumstances that could constitute willful behavior:
The following is a partial listing:
- If a contractor had actual knowledge he/she was violating the law
- Experience of contractor - if there is credible evidence that a contractor "should have known" that it was violating Article 8, i.e., receipt of the prevailing rate schedule
- History of prior public work prevailing rate violations
- Gravity and nature of the violation
Notification by DOL that it views the contractor’s act a violation and the contractor fails to take corrective action
Q: What penalties may be assessed against a contractor for underpayment of prevailing wages?
A: Interest of up to 16% from the date of underpayments to the date of restitution and a penalty up to 25% of the wages, supplements and interest due.
Q: What is the liability of a prime contractor for a subcontractor’s underpayment?
A: When evidence indicates a non-compliance or evasion on the part of a subcontractor, the prime contractor is responsible for such non-compliance or evasion. (Section 223).
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