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Our attorneys stay on top of changes in legislation, agency regulations, case law, and industry trends—then craft timely legal alerts to keep clients up to date on legal developments important to their business.

April 7, 2020

Expanded Prevailing Wage Requirements in NYS FY2020-21 Enacted Budget

The NYS FY2020-21 Enacted Budget includes legislation that expands prevailing wage requirements beyond public works contracts to include certain private projects. The new requirements are effective January 1, 2022.

As of January 1, 2022, the prevailing wage requirements will apply to certain construction work undertaken pursuant to a private contract that is “paid for in whole or in part out of public funds.” Projects covered by this legislation are, with certain exceptions, those projects where the project costs are in excess of $5 million and public funds constitute at least 30 percent of the total construction project costs.

The term “paid for in whole or in part out of public funds” is broadly defined and includes:

  1. The payment of money by a public entity that is not subject to repayment
  2. Savings achieved from a public entity’s involvement, including from reductions in fees, reduced interest rates, tax credits, tax abatements, tax exemptions, payments in lieu of tax agreements, and other savings from reduced, waived, or forgiven costs
  3. Money loaned by a public entity that is to be repaid on a contingent basis
  4. Credits that are applied by a public entity against repayment of obligations

Public entities include the state, industrial development agencies, local development corporations, municipal corporations and state, local or interstate or international authorities. A public entity providing public funds as described above will be responsible for notifying the recipient of the nature and total value of public funds received in connection with the project.

Exceptions to the public funds definition include benefits from the Affordable New York Housing Program, tax benefits the length or value of which are not able to be calculated at the time the work is to be performed, or tax benefits related to Brownfield remediation and redevelopment.

A variety of projects are excluded from these requirements, including, generally, those involving construction work for:

  1. One- or two-family dwellings
  2. Not-for-profits with revenue under $5 million
  3. Certain affordable housing projects
  4. Projects with a pre-hire collective bargaining agreement
  5. Projects financed through the Restore New York’s Communities Initiative or the Downtown Revitalization Initiative
  6. Renewable energy projects with a capacity of five megawatts or less
  7. Certain New York City economic incentive projects
  8. Projects receiving historic tax credits

Notably, all projects that will be subject to prevailing wage requirements also will need to meet certain levels of participation by minority and women-owned business enterprises and service-disabled veteran-owned businesses.

The owners or developers of projects covered under the new legislation must certify under penalty of perjury within five days of the commencement of construction that the project is subject to prevailing wage requirements. Additionally, the owner or developer must retain original payroll records for six years from the conclusion of work on the project. These records will be subject to inspection by the Department of Labor commissioner and also will be subject to the Freedom of Information Law.

The legislation creates a public subsidy board, effective April 1, 2021, consisting of 13 members to be appointed by the governor, which will have a variety of powers, including examining and making recommendations regarding thresholds of public funds in a project, whether construction work is considered a covered project, and whether benefits, monies, or credits should constitute public funds. The public subsidy board also has the power to temporarily delay implementing  these new prevailing wage requirements, if necessary.

Barclay Damon is continuing to analyze the legislation and will share further analysis and additional details in the coming days.

If you have any questions regarding the content of this alert, please contact Connie Cahill, Public Finance Practice Area chair, at mcahill@barclaydamon.com; Jeff Davis, Telecommunications Practice Area co-chair and Project Development Practice Area co-chair, at jdavis@barclaydamon.com; Kevin McAuliffe, Project Development Practice Area co-chair, at kmcauliffe@barclaydamon.com; Melissa Bennett, partner, at mbennett@barclaydamon.com; or Amanda Mirabito, associate, at amirabito@barclaydamon.com.

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