Building Service Employees
- Sec. 230. Definitions.
- Sec. 232. Overtime.
- Sec. 233. Record keeping.
- Sec. 134. Work week of state officers and employees; overtime compensation.
New York Overtime Pay Law
The following sections of the New York Consolidated Laws concern overtime pay in New York.
Building Service Employees
Article 9, Labor Law, Sec. 230. Definitions. As used in this article:
1. "Building service employee" or "employee" means any person performing work in connection
with the care or maintenance of an existing building, or in connection with the transportation of office furniture
or equipment to or from such building, or in connection with the transportation and delivery of fossil fuel to
such building, for a contractor under a contract with a public agency which is in excess of one thousand five hundred
dollars and the principal purpose of which is to furnish services through the use of building service employees.
"Building service employee" or "employee" includes, but is not limited, to, watchman, guard,
doorman, building cleaner, porter, handyman, janitor, gardener, groundskeeper, stationary fireman, elevator operator
and starter, window cleaner, and occupations relating to the collection of garbage or refuse, and to the transportation
of office furniture and equipment, and to the transportation and delivery of fossil fuel but does not include clerical,
sales, professional, technician and related occupations.
"Building service employee" or "employee" also does not include any employee to whom the provisions
of articles eight and eight-a of this chapter are applicable.
2. "Building service work" or "service work" means work performed by a building service employee,
but does not include work performed for a contractor under a contract for the furnishing of services by radio,
telephone, telegraph or cable companies; and any contract for public utility services, including electric light
and power, water, steam and gas.
3. "Public agency" means the state, any of its political subdivisions, a public benefit corporation,
a public authority or commission or special purpose district board appointed pursuant to law, and a board of education.
4. "Contractor" means any employer who employs employees to perform building service work under a contract
with a public agency, and shall include any of his subcontractors.
5. "Wage" includes:
(a) basic hourly cash rate of pay; and
(b) supplements. The term "supplements" means fringe benefits including medical or hospital care, pensions
on retirement or death, compensation for injuries or illness resulting from occupational activity, or insurance
to provide any of the foregoing, unemployment benefits, life insurance, disability and sickness insurance, accident
insurance, vacation and holiday pay, costs of apprenticeship or other similar programs and other bona fide fringe
benefits not otherwise required by federal, state or local law to be provided by the contractor or subcontractor.
6. "Prevailing wage" means the wage determined by the fiscal officer to be prevailing for the various
classes of building service employees in the locality. In no event shall the basic hourly cash rate of pay be less
than the statutory minimum wage established by article nineteen of this chapter, or, in a city with a local law
requiring a higher minimum wage on city contract work, less than the minimum wage specified in such local law.
7. "Locality" means the state, a town, city, village or other civil division or area of the state as
determined by the fiscal officer. The fiscal officer may fix a different geographic area in determining the locality
for the prevailing basic hourly cash rate of pay and the locality for prevailing supplements.
8. "Fiscal officer" means the industrial commissioner, except for building service work performed by
or on behalf of a city, in which case "fiscal officer" means the comptroller or other analogous officer
of such city.
9. "Fossil fuel" shall mean coal, petroleum products and fuel gases. "Coal" shall include bituminous
coal, anthracite coal and lignite. "Fuel gases" shall include but not be limited to methane, natural
gas, liquefied natural gas and manufactured fuel gases. "Petroleum products" shall include all products
refined or rerefined from synthetic or crude oil or oil extracted from other sources, including natural gas liquids.
Provided that nothing in this subdivision shall affect the exclusion for public utility services set forth in subdivision
two of this section.
b. When two final determinations have been rendered against a contractor, subcontractor, successor, or any substantially-owned
affiliated entity of the contractor or subcontractor, any of the partners if the contractor or subcontractor is
a partnership, any officer of the contractor or subcontractor who knowingly participated in the violation of this
article, any of the five largest shareholders of the contractor or subcontractor or any successor within any consecutive
six-year period determining that such contractor, subcontractor, successor, or any substantially-owned affiliated
entity of the contractor or subcontractor, any of the partners or any of the five largest shareholders of the contractor
or subcontractor, any officer of the contractor or subcontractor who knowingly participated in the violation of
this article has wilfully failed to pay the prevailing rate of wages or to provide supplements in accordance with
this article, whether such failures were concurrent or consecutive and whether or not such final determinations
concerning separate public work projects are rendered simultaneously, such contractor, subcontractor, successor,
or any substantially-owned affiliated entity of the contractor or subcontractor, any of the partners if the contractor
or subcontractor is a partnership or any of the five largest shareholders of the contractor or subcontractor, any
officer of the contractor or subcontractor who knowingly participated in the violation of this article shall be
ineligible to submit a bid on or be awarded any public work contract or subcontract with the state, any municipal
corporation or public body for a period of five years from the second final determination, provided, however, that
where any such final determination involves the falsification of payroll records or the kickback of wages or supplements,
the contractor, subcontractor, successor, or any substantially-owned affiliated entity of the contractor or subcontractor,
any partner if the contractor or subcontractor is a partnership or any of the five largest shareholders of the
contractor or subcontractor, any officer of the contractor or subcontractor who knowingly participated in the violation
of this article shall be ineligible to submit a bid on or be awarded any public work contract with the state, any
municipal corporation or public body for a period of five years from the first final determination.
10. "Substantially-owned affiliated entity" shall mean the parent company of the contractor or subcontractor,
any subsidiary of the contractor or subcontractor, or any entity in which the parent of the contractor or subcontractor
owns more than fifty percent of the voting stock, or an entity in which one or more of the top five shareholders
of the contractor or subcontractor individually or collectively also owns a controlling share of the voting stock,
or an entity which exhibits any other indicia of control over the contractor or subcontractor or over which the
contractor or subcontractor exhibits control, regardless of whether or not the controlling party or parties have
any identifiable or documented ownership interest. Such indicia shall include: power or responsibility over employment
decisions, access to and/or use of the relevant entity's assets or equipment, power or responsibility over contracts
of the entity, responsibility for maintenance or submission of certified payroll records, and influence over the
business decisions of the relevant entity.
11. "Entity" shall mean a partnership, association, joint venture, company, sole proprietorship, corporation
or any other form of doing business.
12. "Parent company" shall mean an entity that directly controls the contractor or subcontractor.
13. "Subsidiary" shall mean an entity that is controlled directly, or indirectly through one or more
intermediaries, by a contractor or subcontractor or the contractor's parent company.
14. "Successor" shall mean an entity engaged in work substantially similar to that of the predecessor,
where there is substantial continuity of operation with that of the predecessor.
Article 9, Labor Law, Sec. 232. Overtime.
An employee, employed by a contractor, who works more than eight hours in any one day or more than forty hours
in any workweek shall be paid wages for such overtime at a rate not less than one-and-one-half times his prevailing
basic cash hourly rate.
Article 9, Labor Law, Sec. 233. Record keeping.
1. In all cases where service work is being performed pursuant to a contract therefor, the contractor shall
keep original payrolls or transcripts thereof, subscribed and confirmed by him as true, under penalties of perjury,
showing the hours and days worked by each employee, the craft, trade or occupation at which he was employed, and
the wages paid.
2. Where the wages paid include sums which are not paid directly to the workmen weekly and which are expended for
supplements, the records required to be maintained shall include a record of such hourly payment on behalf of such
employees, the supplement for which such payment has been made, and the name and address of the person to whom
such payment has been made. In all such cases, the contractor shall keep a true and inscribed copy of the agreement
under which such payments are made, a record of all net payments made thereunder, and a list of all persons for
whom such payments are made.
3. The records required to be maintained shall be kept on the site of the work during all of the time that work
under the contract is being performed.
4. All records required to be maintained shall be preserved for a period of three years after the completion of
work.
Article 9, Labor Law, Sec. 238. Penalties.
1. Any contractor or subcontractor who shall upon his oath verify any statement required to be filed under this
article which is known by him to be false shall be guilty of perjury and punishable as provided by the penal law.
2. When a contract for service work contains as part thereof a schedule of wages as provided for in this article,
any contractor who, after entering into such contract, and any subcontractor of such contractor who fails to pay
to any service employee the wages stipulated in such wage schedule is guilty of a misdemeanor and upon conviction
shall be punished for a first offense by a fine of five hundred dollars or by imprisonment for not more than thirty
days or by both fine and imprisonment; for a second offense by a fine of one thousand dollars, and in addition
thereto the contract on which the violation has occurred shall be forfeited; and no such contractor shall be entitled
to receive any sum, nor shall any officer, agent or employee of the contracting public agency pay any such sum
or authorize its payment from the funds under his charge or control to such contractor for work done upon the contract
on which the contractor has been convicted of a second offense. If the contractor or subcontractor is a corporation,
any officer of such corporation who knowingly permits the corporation to fail to make such payment shall also be
guilty of a misdemeanor and the criminal and civil penalties herein shall attach to such officer upon conviction.
Sec. 134. Work week of state officers and employees for basic annual salaries; overtime compensation
1. For all state officers and employees, other than officers and employees of the legislature and the judiciary
and other than those who shall be excluded pursuant to the rules and regulations hereafter mentioned, the workweek
for basic annual salary shall not be more than forty-hours; and, notwithstanding any inconsistent provisions of
law, and subject to the rules and regulations promulgated by the director of the budget, any such state officer
and employee who is authorized or required to work more than forty hours in any week in his regular position or
title or in a position the title of which is allocated to the same salary grade as his regular position, shall
receive overtime compensation for the hours worked in excess of forty in each week at one and one-half times the
hourly rate of pay received by such employee in his regular position; provided, however, that an employee not subject
to the overtime provisions of the federal "Fair Labor Standards Act of 1938" as amended by the federal
"Fair Labor Standards Amendments of 1966", being public law six hundred one of the eighty-ninth congress,
as approved September twenty-three, nineteen hundred sixty-six, and all acts amendatory thereof and supplementary
thereto, may by written agreement with his proper authority exchange hours of work with other employees doing similar
work in the same state institution or other state governmental unit without overtime compensation. Upon the approval
of the director of the budget a member of the state police may be considered to have worked, for the purpose of
determining overtime compensation pursuant to the provisions of this section, a minimum of four hours each time
he is recalled to work overtime after completing his scheduled work period and leaving his scheduled work station
or may be considered to have worked a minimum of two hours each time he is scheduled to return and returns to duty
to work overtime for the purpose of making an appearance in court after completing his regularly scheduled work
period and leavinghis regularly scheduled work station. Upon the approval of the director of the budget an employee
may be considered to have worked, for the purpose of determining overtime compensation pursuant to the provisions
of this section, a minimum of one-half day each time he is recalled to work overtime after completing his scheduled
work period and leaving his scheduled work station; provided, however, that, subject to the terms of an agreement
negotiated between the state and an employee organization pursuant to article fourteen of the civil service law,
an employee recalled to work may be considered to have worked less than a minimum of one-half day and an employee
recalled to work more than once during a period of one-half day commencing with the onset of the initial recall
will not be entitled to more than one-half day of overtime credit unless more than one-half day is actually worked.
When an employee shall work overtime in a position which has a title which is allocated to a lower salary grade
than the salary grade to which the title of his regular position is allocated, he shall receive overtime compensation
at one and one-half times the hourly rate of pay of the maximum salary of the grade of the position in which he
shall work overtime, or such maximum salary plus the additional increment or increments, if he would be entitled
to such additional increment or increments were he then appointed to such position; provided, however, that when
such hourly rate exceeds the hourly rate of pay received by him in his regular position, he shall receive one and
one-half times the hourly rate of his regular position. When an employee works overtime in a position allocated
to a salary grade higher than the salary grade to which his regular position is allocated, he shall receive overtime
compensation at one and one-half times the hourly rate of pay of the rate of compensation to which he would be
entitled if he were permanently promoted to the position in which such overtime work is performed.
2. Any person employed by the state in any institution under the jurisdiction of the department of mental hygiene,
the department of correction, the department of health or the department of social welfare, or in the state barge
canal system, or in the New York state school for the blind, Batavia, or in the New York state veterans' rest camp,
Mt. McGregor, whose hours of labor are limited to forty hours per week, or six days per week, by law or administrative
regulation, who is not allowed time off by the appointing officer, during any fiscal year commencing on or after
April first, nineteen hundred forty-six, for any holiday, pass day or vacation period which he was eligible to
receive by law or by administrative regulation, shall, upon the approval of the superintendent or other head of
such institution or department and the director of the budget, be entitled to compensation therefor at the hourly
rate of pay received by such employee, or shall be allowed an equivalent amount of time off in lieu of such compensation.
3. The amount received as overtime compensation under this section shall be regarded as salary or compensation
for any of the purposes of any pension or retirement system in which the employee receiving the same is a member.
Overtime compensation shall not be regarded as salary or compensation for the purpose of determining the right
to any increase of salary or any salary increment on account of length of service or otherwise. No such overtime
compensation shall be construed to constitute a promotion or to increase any compensation which a public employee
may receive pursuant to section six of chapter six hundred eight of the laws of nineteen hundred fifty-two.
4. The director of the budget shall promulgate, and may from time to time amend or rescind, rules and regulations
for carrying into effect the provisions of this section. Such rules and regulations, among other things, may classify
and define positions and employments for the purposes of this section, and otherwise provide appropriate formulas
for determining overtime compensation as herein provided and provide that for the purpose of computing overtime
compensation pursuant to this section, members of the state police in any title or individual position or positions
shall be considered to have worked a minimum of four hours each time they are recalled to work overtime after having
completed their scheduled work period and left their scheduled work station or shall be considered to have worked
a minimum of two hours each time they are scheduled to return and return to duty to work overtime for the purpose
of making an appearance in court in their official capacity after having completed their scheduled work period
and left their scheduled work station; and provide that for the purpose of computing overtime compensation pursuant
to this section, employees in any title or individual position or positions shall be considered to have worked
a minimum of one-half day each time they are recalled to work overtime after having completed their scheduled work
period and left their scheduled work station. Such rules and regulations may exclude any title or individual position
or positions, when the nature of the duties performed or the difficulty of maintaining adequate time controls makes
it impracticable to apply to such title or individual position or positions the provisions of this section which
prescribe a work week for basic salary and provide for overtime compensation.
5. Notwithstanding any other provisions of law to the contrary, employees in any title or individual position or
positions ineligible to accrue overtime credits under the rules and regulations promulgated by the director of
the budget pursuant to the provisions of this section who are required to work beyond a normal work week may be
granted additional compensation. Such compensation shall be paid upon approval by the director of the budget and
at a rate established by the director of the budget, provided however, that such additional compensation shall
not exceed twelve per cent of the employee's basic salary. Such compensation shall be paid in addition to and shall
not be a part of the employee's basic annual salary, and shall not affect or impair any performance advances or
other rights or benefits to which the employee may be entitled under the provisions of this chapter, provided however,
that any differential payable pursuant to this subdivision shall be included as compensation for retirement purposes.
6. Notwithstanding any other provisions of law to the contrary, any employee in any title or individual position
ineligible to accrue overtime credits under the rules and regulations promulgated by the director of the budget
pursuant to the provisions of this section who is required to work beyond a normal workweek during a period deemed
by the director of the budget to be an extreme emergency, may be granted additional compensation upon the approval
of and at a rate established by the director of the budget; provided, however, that such additional compensation
shall not exceed one and one-half times the hourly rate of pay received by such employee in his regular position.
Such compensation shall be in addition to, and not be a part of, the employee's basic annual salary and shall not
affect or impair any increment or other rights or benefits to which the employee may be entitled under the provisions
of this chapter; provided, however, that any differential payable pursuant to this subdivision shall be included
as compensation for retirement purposes.
6-a. Notwithstanding any other provisions of law to the contrary, employees in any title or individual position
or positions, other than those ineligible to accrue overtime credits under the rules and regulations promulgated
by the director of the budget pursuant to the provisions of this section, who are required to be available for
immediate recall and who must be prepared to return to duty within a limited period of time may be granted additional
compensation for each day that such employee is actually scheduled to remain and remains available for recall;
provided, however, in the event an employee entitled to such additional compensation is actually recalled to work,
the employee will receive appropriate overtime or recall compensation in lieu of such additional compensation,
except that employees in positions in the operational and institutional services units established pursuant to
article fourteen of this chapter shall receive such appropriate overtime or recall compensation in addition to
such additional compensation. Such additional compensation shall be paid upon approval of the director of the budget
and at a rate established by the director of the budget. Such compensation shall be paid in addition to and shall
not be a part of the employee's basic annual salary, and shall not affect or impair any increments or other rights
or benefits to which the employee may be entitled under the provisions of this chapter; provided, however, that
any compensation payable pursuant to this subdivision shall be included as compensation for retirement purposes.
The director of the budget may adopt such regulations as he may deem necessary to carry out the provisions of this
subdivision.
6-b. Notwithstanding any other provision of law to the contrary, a member of the state police in a title or individual
position, other than a title or individual position ineligible to accrue overtime credits under the rules and regulations
promulgated by the director of the budget pursuant to the provisions of this section, who is either in an off-duty
status or has completed a tour of duty and is directed, during an emergency situation, to be available for immediate
recall and who must be prepared to return to duty within a limited period of time may be granted additional compensation
for each hour of such time that each such member is actually directed to remain and remains available for recall;
provided, however, in the event the member is recalled and compensated pursuant to the recall provisions of this
section but works less than four hours, for the purpose of computing the compensation payable pursuant to this
subdivision the length of time during which the member remains available for recall shall be reduced by an amount
of time equal to the difference between the hours worked and four hours. Such additional compensation shall be
paid upon approval of the director of the budget and at the rate established, subject to the terms of any agreement
negotiated between the state and an employee organization pursuant to article fourteen of the civil service law,
by the director of the budget; provided, however, that such rate, when computed on an annual basis, shall not exceed
ten per cent of such member's basic annual salary. Such compensation shall be paid in addition to and shall not
affect or impair any increments or other rights or benefits to which the member may be entitled under the provisions
of this chapter; provided, however, that any compensation payable pursuant to this subdivision shall be included
as compensation for retirement purposes. The director of the budget may adopt such regulations as he may deem necessary
to carry out the provisions of this subdivision.
6-c. Notwithstanding any other provision of law to the contrary, employees in any title or individual position
or positions who are entitled to time off with pay on days observed as holidays by the state as an employer and
are required to work on such holidays may be granted additional compensation for time worked on such days. Such
additional compensation shall be at a rate established, subject to the terms of any agreement negotiated between
the state and an employee organization pursuant to article fourteen of the civil service law, by the director of
the budget. Such compensation shall be paid in addition to and shall not be a part of the employees' basic annual
salary, and shall not affect or impair any increments or other rights or benefits to which the employee may be
entitled under the provisions of this chapter; provided, however, that any compensation payable pursuant to this
subdivision shall be included as compensation for retirement purposes. The director of the budget may adopt such
regulations, including eligibility for such pay, as he may deem necessary to carry out the provisions of this subdivision,
subject to the terms of any agreement negotiated between the state and an employee organization pursuant to article
fourteen of the civil service law.
7. To the extent that appropriations heretofore or hereafter made for personal service in any state department,
division, institution or other state agency are sufficient for the purpose, they shall be available for the payment
of overtime compensation provided under this section, after audit by and upon the warrant of the state comptroller
and the certification prescribed by law for the payment of the regular compensation of such employees.
7. No rule, regulation or other procedure under this section affecting state employees shall be adopted, repealed
or amended without the approval of the director of employee relations.