Legislative Memo

Frank Kerbein
Director, Center for Human Resources
T 518.465.7511 x210


S.850 (Balboni) / A.8148 (John)



Additional penalties for failure to pay Prevailing Wage



May 27, 2003


The Business Council of New York State, a broad-based, statewide membership organization of over 3,600 companies, chambers of commerce and trade associations, has reviewed the aforementioned legislation and opposes its enactment.

The legislation would allow plaintiffs to recover under payments of prevailing wages directly from contractors, subcontractors or holders of payment bonds of the contractors or subcontractors. This legislation, if enacted, would allow for excessive actions including treble damages, court costs, attorneys' fees and a up to a 25% civil penalty.

The current law already allows for the recovery of under payments by enforcing agencies of Sections 220 and 223 of the Labor Law including a civil penalty up to 25 percent. Under current law up to an additional 16% of the underpayment is paid to the aggrieved employee for the period of the violation and until settlement. This legislation merely adds another layer, cited in the bill as "Private" enforcement (line 3) of the prevailing wage law, to exacerbate an already onerous tort system.

As noted above there already exists a mechanism within the Department of Labor in regards to appealing underpayment of wages under section 220 and 223. This legislation adds an additional and unneeded layer. For the above mentioned reasons, The Business Council opposes this legislation and requests that it not be enacted into law.