The New York State Election Law was amended by adding a new section to § 14-116 and incorporating Limited Liability Companies (LLCs) in the definitions in that statute which limits the amount of monies an LLC can expand for political contributions.

Historically, corporations were proscribed from giving political contributions amounting to more than $5000 in the aggregate in any calendar year. Exceeding that limit subjected the corporation and its officers, directors, and stockholders to a criminal misdemeanor charge.

The changes in the law extend that $5000 dollar limitation to LLCs with members and managers being liable for the same misdemeanor criminal charge.

Additionally, the newly added § 14-116(3) of the statute, requires annual filings by an LLC that set forth all political contributions made on or after January 31, 2019. The annual statement specifies what contributions were made by the LLC and who the beneficial owners of the LLC were during that year. This form filing is available on the New York State Board of Elections’ (“NYSBOE”) website and is required to be submitted to the NYSBOE by December 31^st of each year. Failure to file this statement is a misdemeanor.

Nothing in the amended law prohibits an owner of an entity from making contributions in excess of the $5,000 aggregate limit in his or her own name, subject to the individual campaign contribution limits for a candidate or a political committee. The individual campaign limits are set forth each year in regulations promulgated the NYSBOE and can range up to $70,000 per candidate for statewide offices with a primary component.

The Governor signed a bill on January 25, 2021 (the “Bill”), “to back New York’s construction workers in their fight against wage theft and help those seeking justice to navigate their claims against such crimes.”[1]  The Bill takes effect on January 4, 2022, “and shall apply to construction contracts entered into, renewed, modified or amended on or after such date.”[2]

“The purpose of this bill is to amend the existing wage theft law to increase the likelihood that exploited workers in the construction industry will be able to secure payment and collect unpaid wages and benefits for work that has already been performed.”[3]  The Bill provides that:

“a contractor making or taking a construction contract shall assume liability for any debt resulting from making a wage claim, owed to a wage claimant or third party on the wage claimant’s behalf, incurred by a subcontractor at any tier acting under, by, or for the contractor for the wage claimant’s performance of labor; provides for wage theft prevention and enforcement.”[4]

Before the enactment of this Bill, a construction worker could file “a private lawsuit against his/her direct employer to collect any unpaid wages, including overtime and fringe benefits.”[5] Notwithstanding, despite a worker’s ability to file a lawsuit against its direct employer, often that employer was judgment proof.[6]  This Bill now “amends existing wage theft law to require general contractors to assume joint and several liability for any debt resulting from making a wage claim, owed to a wage claimant or third party on the wage claimant’s behalf.”[7]

The hope of this Bill is that by holding the general contractor liable for all subcontractors that it chooses to utilize on a jobsite, the general contractor will monitor its subcontractors more carefully to ensure that they are properly paying their employees.  Essentially, the Bill is intended to create an “incentive for the construction industry to better self-police itself in turn, this will hopefully lead to a decreased burden on State and City Agencies, including the Department of Labor and Workers’ Compensation Board, in terms of enforcement resources.”[8]

The Bill permits general contractors the “authority to oversee the books of subcontractors in order to better ensure that workers are being paid all owed wages.”[9]  In particular, General Business Law was amended, and section 756-f was added which provides, in pertinent part, that:

“Upon request of a contractor, or a contractor’s subcontractor, to any subcontractor which performs any portion of work within the scope of the contractor’s construction contract with an owner, such subcontractor shall provide certified payroll records which, at a minimum, contain all lawfully required information required for all employees providing labor on the project. Such payroll records shall contain sufficient information to apprise the contractor or subcontractor of such subcontractor’s payment status in paying wages and making any applicable fringe or other benefit payments or contributions to a third party on its employee’s behalf.”[10]

“[A] contractor may withhold payment to a subcontractor or lower tier subcontractor for failure to provide certain payroll records.”[11]

What is the impact of this Bill? Essentially, it has now made the general contractor liable in the event that its subcontractor does not properly pay their workers. In order to mitigate the general contractor’s liability, the Bill allows the general contractor to oversee the books and records of the subcontractor to ensure that they are properly paying their employees and to withhold payments to a subcontractor if the subcontractor fails to provide certain payroll records.

It is important for contractors (and subcontractors) to ensure that the contractors they retain are properly paying their workers. If such subcontractor fails to properly pay their workers, the general contractor will be liable. Accordingly, it is imperative that general contractors review the subcontractors’ payrolls and make sure that the workers are properly being paid.

Jaspan Schlesinger LLP can help you navigate these issues and other construction law related matters. If you need assistance, please contact Christopher E. Vatter at cvatter@jaspanllp.com or Charles W. Segal at csegal@jaspanllp.com.

[1] Senate Acts To Penalize, Prevent Wage Theft, Press Release, June 2, 2021.

[2] 2021 NY A.B. A3550. § 4.

[3] 2021 NY S.B. S2766C at “Purpose or General Idea of Bill”. The purpose of the Bill is found in the New York State Senate Bill S2766C, which was substituted by New York State Assembly Bill A3350 on June 2, 2021.

[4] 2021 NY A.B. A3550.

[5] 2021 NY S.B. S2766C at “Justification”. The justification of the Bill is found in the New York State Senate Bill S2766C, which was substituted by New York State Assembly Bill A3350 on June 2, 2021.

[6] Senate Acts To Penalize, Prevent Wage Theft, Press Release, June 2, 2021.

[7] Id.

[8] 2021 NY S.B. S2766C at “Justification”.

[9] Senate Acts To Penalize, Prevent Wage Theft, Press Release, June 2, 2021.

[10] General Business Law §756-f.

[11] 2021 NY S.B. S2766C at “Summary of Provisions”. “Failure to timely comply with a request for information as provided herein shall be a basis for a contractor to withhold payments owed to a subcontractor at any tier.” General Business Law §756-f.

 

 

On Friday, December 10, 2021, the New York State Department of Health Commissioner issued the “Commissioner’s Determination on Indoor Masking Pursuant to 10 NYCRR 2.60” (the “Determination”) setting forth new indoor masking guidelines in the State of New York. The Determination provides “findings of necessity” in support of that mandate, including among other things statements that  the “winter surge of the Delta variant” and the concern that the Omicron variant “appears to be spreading” support issuing strict indoor masking measures during the holiday season to “ensure that there is protection in all indoor settings through either vaccination status or mask-wearing.” (The 12/10/21 Determination at “Findings of necessity.”) Governor Hochul announced the indoor masking mandate would become effective Monday, December 13, 2021, remaining in effect until January 15, 2022.This post focuses on the guidelines set forth concerning  “All Public Places Not Otherwise Covered by This Determination.” (The 12/10/21 Determination.) However, a summary of the key provisions of the other indoor mask requirement is set forth in the footnote below.[1]

The Mandate to All Public Places Not Otherwise Covered by This Determination.

The Determination establishes strict indoor masking guidelines for the State of New York, regardless of vaccine status, providing in relevant part that “…all persons, over age two and able to medically tolerate a face covering/mask, regardless of vaccination status, shall wear an appropriate face covering while in any indoor public place.”  (The 12/10/21 Determination at 7.a.) The Determination further provides that “indoor public place” shall mean “any indoor space that is not a private residence.” (The 12/10/21 Determination at 7.c.) The exception to this rule is “any indoor public area that requires proof of vaccination as a condition of entry.” (The 12/10/21 Determination at 7.b (underline emphasis added).) In other words, the Determination provides that all persons ages 5 and above provide proof of vaccination prior to entering an indoor business or venue or all persons in that business or venue must be masked at all times (less specifically enumerated instances) regardless of vaccination status.

What Is an Indoor Public Place and What is Required in the Public Business/Venue?

The Determination’s corresponding Frequently Asked Questions (“FAQs”) addendum explains the intended scope of the “indoor public place” requirements. Specifically, the definition is intended to include “typically frequently” public and private venues such as “indoor entertainment venues, concert halls, indoor sports stadiums, recreational spaces, restaurants, office buildings, shopping centers, grocery stores, pharmacies, houses of worship and common areas in residential buildings.” (See Frequently Asked Questions at “Information for Businesses and Venues.”)

The FAQs further explain that an indoor business or venue may choose to comply with the mandates set forth in the Determination by either requiring that all persons who enter the indoor venue are fully vaccinated or by requiring that all persons inside such a venue are fully masked, regardless of vaccination status; however, “[a] business and venue cannot do a ‘combination’ requirement.” (See Frequently Asked Questions at “What Exactly are the Requirements?”)  Further, the requirement applies to patrons and employees. In other words, if a business or venue does not require that all patrons show proof of vaccine status before entering, every employee in the business or venue must adhere to the mask mandate at all times while indoors and vice versa.

What Proof is Required by the Determination?

The FAQs explain that persons age twelve (12) and above must be fully vaccinated (defined as 14 days post a one-dose vaccine or 14 days past the second dose of a two-dose Pfizer or Moderna COVID-19 vaccine) prior to entering a business or venue. Children ages 5-11 must show proof of at least one dose of the COVID-19 vaccine prior to entering a business or venue. (See Frequently Asked Questions at “Business/Venue Proof of Vaccination Requirement.”)

Such proof may be established by the Excelsior Pass, SMART Health Cards issued by states other than New York, a New York State COVID Safe app full-course vaccination, a CDC Vaccination Card, or other official immunization record will satisfy the Requirement. (See Frequently Asked Questions at “Business/Venue Proof of Vaccine Requirement.”)

How Do the Mandates Affect Office Spaces?

The FAQs explain that any office space that does not require proof of vaccination as a condition of entry must follow the masking policy, stating: “If the office does not require proof of vaccination as a condition of entry, everyone must wear masks at all times regardless of vaccination status except when eating, drinking, or alone in an enclosed room.” (See Frequently Asked Questions at “Information for Businesses and Venues” (underline emphasis added).)  The FAQs add that such guidance constitutes “Department of Health guidance related to face coverings” as set forth in the NY HERO ACT. (See Frequently Asked Questions at “Information for Businesses and Venues.”)

How Do the Mandates Affect Private Gatherings Such as Weddings and Restaurants?

According to the FAQs, private events held indoors at a business or venue are included in the new mandate. In other words, “the business entity/venue must require masking or proof of vaccination as a condition of entry” to a wedding or similar private event held at a private business or venue. (See Frequently Asked Questions at “What about private events held at a public indoor space, such as a wedding hosted at a restaurant or venue?”)

Additionally, food services businesses operating with both indoor and outdoor, enclosed, or semi-enclosed spaces with more than two sides covered must comply with these mandates in both the indoor and outdoor spaces. However, food services operating exclusively in open, unenclosed spaces, e.g., without a roof or two or fewer sides covered, are strongly recommended but not required to follow the mask mandate. (See Frequently Asked Questions at id.)

What About Salons/Personal Care Service Business?

The FAQs state that the proof of vaccine mandate applies to personal care service settings. If a salon does not require proof of vaccine to enter, then persons receiving facials, face hair trimming, etc. “may briefly remove their masks while receiving such services” but are otherwise required to wear masks at all times. The brief removal exemptions would not apply to any services such as hair cuts that do not require mask removal. (See Frequently Asked Questions at “How does the new policy work for salons and other personal care businesses…?”) For a full review of the scenarios contemplated, see generally Frequently Asked Questions.

Preparing for the New Mandate

In light of the new mandate people living in and visiting New York should consider taking the following steps:

• Fully vaccinated persons and employees alike in New York should bring a mask and proof of vaccine when leaving their residence to go to indoor businesses or venues to ensure entry into such establishments.
• Owners/Managers of indoor businesses or ventures must immediately determine how they will comply with the mandate while it is in effect.
• Persons hosting weddings and gatherings at indoor businesses or ventures while the mandate is in effect should reach out immediately to the owners/managers of those establishments to determine the policies adopted and the effect, if any, such policies will have on guests’ ability to attend the event.
• Unvaccinated persons in New York age five and over will likely experience difficulties frequenting restaurants and service salons and/or attending school functions and meetings while this mandate is in effect.
• Families with unvaccinated children ages five and above planning on visiting New York should consider the effect the mandate will have on their travel plans.

s[1] Healthcare Settings: “…all personnel, regardless of vaccination status … shall wear an appropriate face mask” and “all visitors over age two and able to medically tolerate a face covering/mask shall be required to wear a face covering/mask in health care facilities, regardless of vaccination status, subject to applicable CDC exceptions….” (The 12/10/21 Determination at 1.)

Adult care facilities (ACFs) regulated by the Department: “all ACF personnel, regardless of vaccination status, shall wear an appropriate face mask if providing direct medical care” and other staff shall wear “at a minimum, a cloth face covering … in such settings” both “in accordance with any applicable CDC exceptions….” (The 12/10/21 Determination at 2.)

P-12 school settings: “[U]niversal masking of teachers, staff, students, and visitors to P-12 schools over age two and able to medically tolerate a face covering/mask and regardless of vaccinations status … subject to applicable CDC-recommended exceptions.” (The 12/10/21 Determination at 3.a.) This requirement “is extended to any gathering on school grounds which addresses or implements educational matters where students are or may reasonably be expected to be present.” (The 12/10/21 Determination at 3.b.) If “officials presiding over” such public meetings “are unable to guarantee compliance with such masking requirements, they are advised to implement full virtual access to public meetings” as set forth in the New York State Open Meetings Law dated September 2021. (The 12/10/21 Determination at 3.b.) Finally, the P-12 school setting mask mandate “does not provide for the implementation of ‘mask breaks’ during the school day, nor does it provide for an exception to the masking requirement on the basis of minimal social distancing in classrooms.” (The 12/10/21 Determination at 3.c.)

Correctional facilities and detention centers: “[A]ll incarcerated/detained Persons and staff shall wear an appropriate face covering/mask when social distancing cannot be maintained” and all “visitors over age two and able to medically tolerate a face covering/mask shall wear an appropriate face covering/mask in accordance with applicable CDC exceptions….” (The 12/10/21 Determination at 4.a.-b.)

Homeless Shelters/Emergency Shelters/Day Shelters and Meal Service Providers: “[A]ll clients visitors, staff, and volunteers over age two and able to medically tolerate a face covering/mask shall wear an appropriate face covering/mask, regardless of vaccination status, when social distancing cannot be maintained….” (The 12/10/21 Determination at 5.)

Public Transportation Conveyances and at Transportation Hubs: While indoors on public transportation and at hubs, “all persons , over age two and able to medically tolerate a face covering/mask, regardless of vaccination status shall wear an appropriate face covering mask….” (The 12/10/21 Determination at 6.a.)

 

 

The Governor signed a bill on January 6, 2021, amending State Finance Law § 139-f(a)[i] to remove the statutory definition of “substantial completion”, in relation to payments on public construction contracts (the “Bill”). The Bill took effect on December 15, 2020.  In particular, the Bill removed the definition of substantial completion and now allows public agencies to retain their own definitions of substantial completion. Substantial completion of the work on a public contract acts as a trigger for permitting a contractor to request a reduction in the typical retention on a construction project and to submit its final payment requisition for payment of the remaining amount due on its contract.

State Finance Law § 139-f previously defined when a public project was substantially completed and when a contractor was permitted to submit its final payment requisition. Substantial completion was previously defined as “mean[ing] the state in the progress of the project when the work required by the contract with the public owner is sufficiently complete in accordance with the contract so that the public owner may occupy or utilize the work for its intended use; provided further, that ‘substantial completion’ shall apply to the entire project or a portion of the entire project if the contract with the public owner provides for occupancy or use of a portion of the project”[ii].

The reason for this change to State Finance Law § 139-f was that the definition of substantial completion applied to various types of contracts and industries. The Legislature determined that there should be a more flexible term, depending on a particular contract or industry.  The Bill “allow[s] for public contracts to be the defining authority on what constitutes substantial completion, by referring to substantial completion, as it appears within the terms of the contract.”[iii]

State Finance Law § 139-f also amended the timing for a contractor to complete certain tasks set forth in the public owner’s “punch” list of work to be completed from seven calendar days to five business days.  This change “provide[s] essentially the same amount of time without contract deadlines falling on holidays or the weekends.”[iv]

When issuing or negotiating a public improvement contract, it is important that the contract define when substantial completion occurs. Jaspan Schlesinger LLP can help you in issuing or negotiating public improvement contracts.

If you need assistance, please contact Christopher E. Vatter at cvatter@jaspanllp.com or Charles W. Segal at csegal@jaspanllp.com.

[i] 2021 NY S.B. S880. State Senator Neil D. Breslin (44^th Senate District).

[ii] 2020 NY CLS St Fin § 139-f

[iii] 2021 NY S.B. S880 at “Justification”.

[iv] Id.