N.Y. Environmental Conservation Law § 76-0105 – Labor and job standards and worker protection

1. All public entities involved in implementing projects funded through the climate change adaptation cost recovery program shall assess and implement strategies to increase employment opportunities and improve job quality. Within one hundred twenty days of the effective date of this section, the governor shall publish a report, accessible on the state's website, which provides: a. steps that will be taken to ensure compliance with this section, including the department or office, or combination thereof, charged with implementation of the provisions of this section; b. regulations necessary to ensure the prioritization of the statewide goal of creating good jobs and increasing employment opportunities; and c. steps that will be taken with all public entities, including local and county level governments, to implement a system to track compliance, accept reports of non-compliance for enforcement action, and report annually on the adoption of these standards to the legislature starting one year from the effective date of this section.
2. For purposes of this section, "public entity" shall include the state and all of its political subdivisions, including but not limited to counties, municipalities, agencies, authorities, public benefit corporations, public trusts, and local development corporations as defined in subdivision eight of section eighteen hundred one of the public authorities law or section fourteen hundred eleven of the not-for-profit corporation law, a municipal corporation as defined in section one hundred nineteen-n of the general municipal law, an industrial development agency formed pursuant to article eighteen-A of the general municipal law or industrial development authorities formed pursuant to article eight of the public authorities law, and any state, local or interstate or international authorities as defined in section two of the public authorities law; and shall include any trust created by any such entities.
3. In considering and issuing permits, licenses, regulations, contracts and other administrative approvals and decisions necessary for implementation of projects funded in whole, or in part, through the climate change adaptation cost recovery program, all public entities shall apply the following standards: a. For any construction work, the payment of no less than prevailing wages for all employees of any contractors and subcontractors, consistent with sections two hundred twenty, two hundred twenty-a, two hundred twenty-b, two hundred twenty-i, two hundred twenty-three, and two hundred twenty-four-b of the labor law, and building services, consistent with article nine of the labor law; where a recipient of financial assistance contracts building service work or operations and maintenance work to a building service contractor, the contractor is held to the same obligations with respect to prevailing wages as the recipient. The recipient must include terms establishing this obligation within any contract signed with a contractor. b. (i) Any public entity receiving at least five million dollars from funds allocated pursuant to the climate change adaptation cost recovery program for a project which involves the construction, reconstruction, alteration, maintenance, moving, demolition, excavation, development or other improvement of any building, structure or land, shall be subject to section two hundred twenty-two of the labor law.
(ii) Any privately owned project receiving funds allocated pursuant to the climate change adaptation cost recovery program which utilizes a project labor agreement on such project shall not be subject to article eight of the labor law. c. The inclusion of contract language requiring contractors to establish labor harmony policies. The public entity may require a private owner, or a third party acting on such owner's behalf, as a condition of receiving funds pursuant to the climate change adaptation cost recovery program, to stipulate to the public entity that it will enter into a labor peace agreement with at least one bona fide labor organization either where such bona fide labor organization is actively representing employees in such job-type or, upon notice, by a bona fide labor organization that is attempting to represent employees in such job-type. For purposes of this section "labor peace agreement" means an agreement between an entity and labor organization that, at a minimum, protects the state's proprietary interests by prohibiting labor organizations and members from engaging in work stoppages, boycotts, and any other economic interference with the relevant project or program. d. (i) The inclusion of contract language with a provision that the iron, steel, aluminum, glass, copper, manufactured products, and construction products, including without limitation, vehicles, omnibuses, school buses, trucks, construction equipment, earth moving equipment, cranes, drilling equipment, rolling stock, train control equipment, communication equipment, traction power equipment, rolling stock prototypes, rolling stock frames, rolling stock car shells, batteries, charging equipment, fuel cells, fueling equipment, turbines, nacelles, blades, rotors, generators, motors, hubs, cable, conduit, controllers, towers, photovoltaic cells, solar panels, meters, inverters, pipe, tubing, fittings, tanks, flanges, valves, concrete, rebar, brick, aggregate, concrete block, cement, timber, lumber, tile, and drywall used or supplied in the performance of the contract or any subcontract thereto, shall be produced or made in whole or substantial part in the United States, its territories or possessions. In the case of an iron, steel, or aluminum product, all manufacturing must take place in the United States, from the initial melting stage through the application of coatings, except metallurgical processes involving the refinement of steel additives.
(ii) The provisions of subparagraph (i) of this paragraph shall not apply in any case or category of cases in which the head of the contracting public entity finds that: (1) applying subparagraph (i) of this paragraph would be inconsistent with the public interest; (2) products are not produced in the United States in sufficient and reasonably available quantities and of a satisfactory quality; or (3) inclusion of products produced in the United States will increase the cost of the overall project by more than twenty-five percent. If the head of the contracting public entity receives a request for a waiver under this subdivision, such person shall make available to the public on an informal basis a copy of the request and information available to such person concerning the request, and shall allow for informal public input on the request for at least fifteen days prior to making a finding based on the request. The head of the contracting public entity shall make the request and accompanying information available by electronic means, including on the official public website of the public entity. The provisions of subparagraph (i) of this paragraph shall not apply for products purchased prior to the effective date of this article.
(iii) The head of the contracting public entity may, at the contracting entity's sole discretion, provide for a solicitation of a request for proposal, invitation for bid, or solicitation of proposal, or any other method provided for by law or regulation for soliciting a response from offerors intending to result in a contract pursuant to this paragraph involving a competitive process in which the evaluation of competing bids gives significant consideration in the evaluation process to the procurement of equipment and supplies from businesses located in New York state. e. Apprenticeship and workforce development utilization: (i) wherever possible, contractors and subcontractors should be required to participate in apprenticeship programs, registered in accordance with article twenty-three of the labor law, in the trades in which they are performing work; (ii) for industries without apprenticeship programs, the use of workforce training, preferably in conjunction with a bona fide labor organization, shall be required; and (iii) encouragement of registered pre-apprenticeship direct entry programs for the recruitment of local and/or disadvantaged workers. f. Notwithstanding any provision of law to the contrary, all rights or benefits, including terms and conditions of employment, and protection of civil service and collective bargaining status of all existing public employees shall be preserved and protected. Nothing in this section shall result in the: (i) displacement of any currently employed worker or loss of position (including partial displacement such as a reduction in the hours of non-overtime work, wages, or employment benefits) or result in the impairment of existing collective bargaining agreements; (ii) transfer of existing duties and functions related to maintenance and operations currently performed by existing employees of authorized entities to a contracting entity; or (iii) transfer of future duties and functions ordinarily performed by employees of authorized entities to a contracting entity.
4. a. Any public entity requesting bids or awarding contracts for renewable energy projects, energy efficiency projects, or other projects funded by the climate change adaptation cost recovery program, except for construction projects, shall require any applicant, bidder, or responder to submit a New York jobs plan as part of its application, bid or response. The department of environmental conservation, in consultation with the department of labor, shall develop all forms, procedures, evaluation and scoring criteria, and guidance, necessary for the implementation of the New York jobs plan. To the extent feasible, the department of environmental conservation, in consultation with the department of labor, shall consider the input and recommendations of relevant public entities on the development of the New York jobs plan. b. The New York jobs plan shall require applicants, bidders, and responders to provide information on jobs that would result from being awarded the bid or contract for such projects. At a minimum, this shall include the following information for nonsupervisory positions, broken down by classification:
1. (i) The number of full-time non-temporary jobs retained, and the number to be created.
2. (ii) The number of positions classified as employees, as defined in section seven hundred forty of the labor law, and positions classified as independent contractors.
3. (iii) The number of jobs to be specifically reserved for individuals facing barriers to employment and the number to be reserved for individuals from disadvantaged communities.
4. (iv) The minimum wages and fringe benefits amounts to be paid.
5. (v) The proposed amounts for worker training and information about any existing apprenticeship program registered with the department or a federally recognized state apprenticeship agency that complies with the requirements under Parts 29 and 30 of title 29, code of federal regulations.
6. (vi) In the event that a federal authority specifically authorizes use of a geographic preference or when covered public contracts are funded exclusively through state or local funds, the New York jobs plan shall require information on the number of local jobs to be created. c. Awarding public entities shall require the same New York jobs plan information to be submitted from all known subcontractors at the time of the solicitation or bid for the project is released. d. New York jobs plan commitments shall be included in the contract awarded by the public entity or its contractors as a material term. e. For non-competitive public contracts awarded under this article, applicants, bidders, or responders shall create a New York jobs plan as set forth in this section. For competitive public contracts, public entities shall award contracts using a competitive best-value bid procurement process. The applicants', bidders', or responders' New York jobs plan shall be scored as a part of the overall application for the public contract, awarding additional consideration to applicants, bidders, or responders who do any of the following:
7. (i) Have the greatest beneficial economic impact on the state and local economies as a result of receiving the public contract, based on the priority criteria outlined in its New York jobs plan.
8. (ii) Enhance the state's commitment to energy conservation, pollution and greenhouse gas emissions reduction, and transportation efficiency.
9. (iii) Retain the greatest number of full-time, non-temporary employees compensated at a wage rate for the project jurisdiction as established in the living wage calculator published by the Massachusetts Institute of Technology, using the living wage rate for a household of two working adults with two children in the jurisdiction of the project.
10. (iv) Make concrete commitments to creating the greatest number of full-time, non-temporary jobs compensating employees at a wage rate at or above the living wage rate for the project jurisdiction as established in the living wage calculator published by the Massachusetts Institute of Technology, using the living wage rate for a household of two working adults with two children in the jurisdiction of the project.
11. (v) Commit to at least ninety percent of the labor on the contract being performed by workers classified as employees.
12. (vi) Offer targeted training and opportunities for individuals facing barriers to employment and workers from disadvantaged communities. f. The department, in consultation with the department of labor, shall develop a web-based portal to track New York jobs plan commitments and compliance.
13. (i) All New York jobs plan commitments and compliance reporting shall be viewable by the public, through the web-based portal.
14. (ii) Recipients of public contracts shall, on an annual basis, be required to upload progress reports on each of the commitments included in their New York jobs plan application, for the duration of the covered public contract. g. Noncompliance with New York jobs plan commitments would violate the terms of the public contract. At a minimum these commitments would be enforceable through standard breach of contract remedies, including but not limited to, termination of the public contract.
5. Nothing set forth in this section shall be construed to impede, infringe, or diminish the rights and benefits which accrue to employees through bona fide collective bargaining agreements, or otherwise diminish the integrity of the existing collective bargaining relationship.
6. Nothing set forth in this section shall preclude a public entity from setting additional requirements or standards in addition to those set forth in this article.