N.Y. Comp. Codes R. & Regs. tit. 12 § 221.1

Current through Register Vol. 46, No. 45, November 2, 2024

Section 221.1 - Civil penalty

(a) When, after an investigation or hearing, as provided in subdivisions 7 and 8 of section 220, and subdivision 2 of section 220-b of the Labor Law, it is determined that a subcontractor failed to pay prevailing wages and/or supplements, and the prime contractor, responsible for the noncompliance or evasion on the part of the subcontractor, makes restitution, the Commissioner of Labor, or his designated representative, may waive the civil penalty, to be assessed in accordance with subdivision 8 of section 220 and subdivision 2 of section 220-b of the Labor Law, where uncontroverted evidence of all of the following exists:

(1) the prime contractor, or its agent, provided the subcontractor with the applicable prevailing wage rate schedule for the project and any subsequently issued annual determinations or corrections;

(2) the prime contractor made a good faith effort to assure that the subcontractor complied with all Labor Law requirements, including, but not limited to, requesting and reviewing certified payroll records;

(3) the subcontractor cannot be located, despite the prime contractor having made a good faith attempt to locate said subcontractor, or the subcontractor has filed for bankruptcy protection, or the subcontractor is no longer in business;

(4) the prime contractor has paid the subcontractor in full in accordance with the terms of its subcontract agreement;

(5) the prime contractor has fully cooperated, in a timely manner, with the Department of Labor's investigation; and

(6) in all likelihood, the prime contractor will be unable to receive indemnification from the subcontractor for the restitution it has paid.

(b) The Commissioner of Labor, or his designated representative, may reduce the civil penalty to an amount less than that which would otherwise be assessed in accordance with the criteria enumerated in subdivision 8 of section 220 and subdivision 2 of section 220-b of the Labor Law, where uncontroverted evidence exists of some, but not all, of the factors set forth in subdivision a of section 221.1 supra.

(c) In all other situations, the criteria enumerated in subdivision 8 of section 220 and subdivision 2 of section 220-b of the Labor Law, i.e. size of the employer' business, the good faith of the employer, the gravity of the violation, the history of previous violations and the failure to comply with recordkeeping or other nonwage requirements, controls in determining the appropriate civil penalty to be assessed.

N.Y. Comp. Codes R. & Regs. Tit. 12 § 221.1