[Adopted 9-19-2006 by L.L. No. 52-2006 (Ch. 234, Art. I,
of the 1985 Code)]
A.
This Legislature hereby finds that there has been an ongoing national
debate regarding the unfairness and inequities between employers that
comply with all federal, state, and local laws and regulations in
connection with the hiring of their employees and employers that fail
to comply with such laws and regulations.
B.
This Legislature further finds and determines that these inequities
provide a financial disadvantage to those employers who comply with
all federal, state, and local laws and regulations in connection with
the hiring of their employees while, in turn, providing an unfair
financial advantage to those employers who do not comply with the
law.
C.
This Legislature further finds and determines that, since there has
been a lack of enforcement of a twenty-year-old federal law (Simpson-Mazzoli)
that requires businesses to verify that their employees are legally
eligible to be employed in the United States, Suffolk County has an
opportunity to lead by example in an effort to prod the federal government
to undertake such enforcement action.
D.
This Legislature also finds and determines that employer noncompliance
with federal, state, and local laws and regulations that regulate
the hiring of employees results in diminished protection of employees
from unfair labor practices and fosters the circumvention of prevailing
wage and health insurance coverage requirements.
E.
This Legislature further finds and determines that Suffolk County
at present has no jurisdiction to enforce Simpson-Mazzoli, even against
businesses that are one-hundred-percent funded by the County of Suffolk.
F.
This Legislature also finds and determines that the County of Suffolk
has a finite amount of scarce taxpayer resources to expend, which
resources shall be spent wisely and prudently.
G.
This Legislature further finds that the County of Suffolk provides
grants, loans, contracts, license agreements, leases and other forms
of financial assistance to businesses that result in the creation
and maintenance of a wide variety of employment opportunities in Suffolk
County, thereby affording the County the opportunity to utilize its
economic and financial leverage to compel local businesses to comply
with the federal law requiring businesses to verify that their employees
are legally eligible to be employed in the United States.
H.
Therefore, the purpose of this article is to provide a means of assisting
the enforcement of the federal law requiring businesses to verify
that their employees are legally eligible to be employed in the United
States, by providing an enforcement mechanism at the County level
against noncompliant businesses that are one-hundred-percent funded
by the County of Suffolk, thereby:
(1)
Helping to promote the federal policy of requiring employers to verify
the employment status of potential employees;
(2)
Helping to eliminate unfair competitive advantages between businesses;
(3)
Helping to eliminate unfair labor practices and worker exploitation;
and
(4)
Helping to assure taxpayers that employers and employees are paying
their fair share of taxes by complying with tax laws.
As used in this article, the following terms shall have the
meanings indicated:
Any person who is not a citizen or national of the United
States.
That subordinate or component entity or person of the County
of Suffolk that is responsible for solicitation of proposals or bids
and responsible for the award and administration of contracts, license
agreements, leases and other financial compensation agreements.
Any grant, loan, tax incentive, funding, appropriation, payment,
subsidy or other form of financial assistance which is realized by
or provided to a covered employer, or the owners thereof, by or through
the authority or approval of the County of Suffolk, including, but
not limited to, community development block grant (CDBG) loans, Industrial
Development Agency (IDA) loans, and Enterprise-Zone-related incentives.
Any contract, subcontract, license agreement, lease or other
financial compensation agreement let to a person with or by the County
of Suffolk for the furnishing of services, goods, equipment, supplies,
materials, public works, or other property to or for the County of
Suffolk.
A person who contracts to do work for another. This term
does not include wholesalers.
The County of Suffolk, any agency, office, position, administration,
department, division, bureau, board, commission, corporation, public
authority or unit of government, the expenses of which are paid in
whole or in part by the County of Suffolk, or over which majority
control is exercised by officers of the County of Suffolk or of a
County-affiliated agency or their appointees.
An individual employed on either a full-time, part-time,
temporary or seasonal basis by a covered employer to perform work
on or for the project or matter for which the recipient has received
compensation.
A recipient of, or an applicant for, compensation that is
not exempt from this article, and who has at least one covered employee
working within the County of Suffolk or the County of Nassau, or at
least one fifty-percent-or-more owner living within the County of
Suffolk.
One or more of the following or their agents, employees,
representatives and legal representatives: individuals, corporations,
partnerships, joint ventures, associations, labor organizations, educational
institutions, mutual companies, joint-stock companies, all trusts,
unincorporated organizations, trustees, trustees in bankruptcy, receivers,
fiduciaries and other entities recognized at law by this County.
An individual who is a citizen or national of the United
States; or is an alien who is lawfully admitted for permanent residence,
is granted the status of an alien lawfully admitted for temporary
residence under 8 U.S.C. § 1160(a) or § 1255a(a)(1),
is admitted as a refugee under 8 U.S.C. § 1157, or is granted
asylum under 8 U.S.C. § 1158; but does not include an alien
who fails to apply for naturalization within six months of the date
the alien first becomes eligible (by virtue of a period of lawful
permanent residence) to apply for naturalization or, if later, within
six months after the date of the enactment of 8 U.S.C. § 1324b;
or an alien who has applied on a timely basis but has not been naturalized
as a citizen within two years after the date of the application, unless
the alien can establish that the alien is actively pursuing naturalization.
Any person or entity who or which is a recipient of compensation,
as defined in this article, and any contractor or subcontractor of
a recipient producing or providing goods, materials, supplies, public
works, or services to a recipient that are used by that recipient
in the project or matter for which the recipient has received compensation.
A period of time not to exceed 90 consecutive days at any
given time within a six-month period.
A person who takes portions of a contract from a covered
employer, a contractor or another subcontractor. This term does not
include wholesalers.
A person who buys in comparatively large quantities and then
resells, usually in small quantities to a middleman or retailer, but
never to the ultimate consumer.
A.
Affidavit of compliance by covered employers; discrimination and
retaliation prohibited.
(1)
All covered employers, and the owners thereof, as the case may be,
that are recipients of compensation from the County through any grant,
loan, subsidy, funding, appropriation, payment, tax incentive, contract,
subcontract, license agreement, lease or other financial compensation
agreement issued by the County or an awarding agency, where such compensation
is 100% funded by the County, shall submit a completed sworn affidavit
(under penalty of perjury), the form of which shall be established
by the County Department of Labor, certifying that they have complied,
in good faith, with the requirements of Title 8 of the United States
Code (U.S.C.), § 1324a (Aliens and Nationality), with respect
to the hiring of covered employees and with respect to the alien and
nationality status of the owners thereof. The affidavit shall be executed
by an authorized representative of the covered employer or owner,
as the case may be; shall be part of any executed contract, subcontract,
license agreement, lease or other financial compensation agreement
with the County; and shall be made available to the public upon request.
(2)
No such covered employers, and the owners thereof, as the case may
be, shall discriminate against any covered employee or applicant for
employment with respect to the hiring, or recruitment or referral
for a fee, of such covered employee or applicant for employment, nor
shall such covered employers, and the owners thereof, as the case
may be, discriminate against any covered employee with respect to
the discharge of such covered employee, because of race, creed, color,
national origin, sex, age, gender, disability, sexual orientation,
military status, or marital status or, in the case of a protected
individual, because of such individual's citizenship status.
(3)
No such covered employers, and the owners thereof, as the case may be, shall intimidate, threaten, coerce, or retaliate against any covered employee or applicant for employment for the purpose of interfering with any right or privilege secured under 8 U.S.C. § 1324b or because the covered employee or applicant for employment intends to file or has filed a charge or a complaint, testified, assisted, or participated in a manner in an investigation, proceeding, or hearing under 8 U.S.C. § 1324b. A covered employee or applicant for employment so intimidated, threatened, coerced, or retaliated against shall be considered to have been discriminated against for purposes of Subsection A(2) of this section.
B.
Affidavit of compliance by contractors and subcontractors; discrimination
and retaliation prohibited.
(1)
All contractors and subcontractors of covered employers, and the
owners thereof, as the case may be, that are assigned to perform work
in connection with a County contract, subcontract, license agreement,
lease or other financial compensation agreement issued by the County
or awarding agency, where such compensation is 100% funded by the
County, shall submit to the covered employer a completed sworn affidavit
(under penalty of perjury), the form of which shall be established
by the Department of Labor, certifying that they have complied, in
good faith, with the requirements of 8 U.S.C. § 1324a with
respect to the hiring of covered employees and with respect to the
alien and nationality status of the owners thereof, as the case may
be. The affidavit shall be executed by an authorized representative
of the contractor, subcontractor, or owner, as the case may be; shall
be part of any executed contract, subcontract, license agreement,
lease or other financial compensation agreement between the covered
employer and the County; and shall be made available to the public
upon request.
(2)
No such contractors and subcontractors of covered employers, and
the owners thereof, as the case may be, shall discriminate against
any employee or applicant for employment with respect to the hiring,
or recruitment or referral for a fee, of such employee or applicant
for employment, nor shall such contractors and subcontractors of covered
employers, and the owners thereof, as the case may be, discriminate
against any employee with respect to the discharge of such employee,
because of race, creed, color, national origin, sex, age, gender,
disability, sexual orientation, military status, or marital status
or, in the case of a protected individual, because of such individual's
citizenship status.
(3)
No such contractors and subcontractors of covered employers, and the owners thereof, as the case may be, shall intimidate, threaten, coerce, or retaliate against any employee or applicant for employment for the purpose of interfering with any right or privilege secured under 8 U.S.C. § 1324b or because the employee or applicant for employment intends to file or has filed a charge or a complaint, testified, assisted, or participated in a manner in an investigation, proceeding, or hearing under 8 U.S.C. § 1324b. An employee or applicant for employment so intimidated, threatened, coerced, or retaliated against shall be considered to have been discriminated against for purposes of Subsection B(2) of this section.
C.
Covered-employer- and owner-sworn affidavits shall be submitted to
the awarding agency at the following times:
(1)
Upon application made to the County for any grant, loan, subsidy,
tax-incentive funding, appropriation, payment, or other form of financial
assistance;
(2)
Upon submission to the County of any response to a County bid, request
for proposals (RFP), request for qualifications (RFQ), request for
expressions of interest (RFEI), or similar contract-letting process,
including but limited to letting for license agreements, leases and
other financial compensation agreements;
(3)
On January 1 of each year for the duration of the County contract,
subcontract, license agreement, lease or other financial compensation
agreement; and
(4)
Upon renewal and amendment of any County contract, subcontract, license
agreement, lease or other financial compensation agreement.
D.
Contractor- and subcontractor-sworn affidavits shall be submitted
by the covered employer to the awarding agency at the following times:
(1)
Within one week after the contractor or subcontractor is hired by
the covered employer to perform the work in connection with the County
contract, subcontract, license agreement, lease or other financial
compensation agreement;
(2)
In the event of a County contract, subcontract, license agreement,
lease or other financial compensation agreement that is being renewed
or amended where a contractor or subcontractor was previously hired
by a covered employer to perform work in connection with such contract,
subcontract, license agreement, lease or other financial compensation
agreement, upon such renewal or amendment; and
(3)
On January 1 of each year for the duration of the County contract,
subcontract, license agreement, lease or other financial compensation
agreement, provided that the contractor or subcontractor was previously
hired by the covered employer to perform work in connection with such
contract, subcontract, license agreement, lease or other financial
compensation agreement and is continuing to perform such work.
A.
Any covered employer and the owners thereof, as the case may be, that establish that they have complied in good faith with the requirements of 8 U.S.C. § 1324a with respect to the hiring of covered employees and with respect to the alien and nationality status of the owners thereof, as the case may be, have established an affirmative defense that such covered employer and the owners thereof, as the case may be, have not violated § 353-12A(1) of this article with respect to such hiring and alien and nationality status of the owners thereof.
B.
Any contractor and subcontractor of a covered employer and the owners thereof, as the case may be, that establish that they have complied in good faith with the requirements of 8 U.S.C. § 1324a with respect to the hiring of covered employees and with respect to the alien and nationality status of the owners thereof, as the case may be, have established an affirmative defense that such contractor and subcontractor of the covered employer and the owners thereof, as the case may be, have not violated § 353-12B(1) of this article with respect to such hiring and alien and nationality status of the owners thereof.
A.
All covered employers and the owners thereof, as the case may be, shall verify that they have complied with the requirements of § 353-12 of this article based upon the categories of records, set forth below, copies of which shall be maintained by the covered employer to evidence compliance with this article:
(1)
United States passport; or
(2)
Resident alien card or alien registration card; or
(4)
Employment authorization documents, such as an H-1B visa, H-2B visa,
and L-1 visa, or such other work visa as may be authorized by the
United States Government at the time the County contract is awarded
for all covered employees; or
(5)
Birth certificate indicating that person was born in the United States;
B.
The documents reviewed and relied upon by the covered employer, or
the owners thereof, as the case may be, must appear on their face
to be genuine. Copies of such documents relied upon by the covered
employer, or the owners thereof, as the case may be, shall be maintained
by the covered employer for all covered employees for the periods
set forth below.
C.
Such records shall be maintained by the covered employer, or owners
thereof, for the following minimum periods of time:
(1)
One year for a tax incentive;
(2)
Two years for a County grant, subsidy or other financial assistance;
(3)
Until such time the County loan is paid back in full; and
(4)
Six years after the County contract, subcontract, license agreement,
lease or other financial compensation agreement either expires or
is terminated.
D.
Authorized County employees shall be entitled to review such records
on a periodic basis as requested by the County or awarding agency.
A.
No grant, loan, subsidy, tax incentive, funding, appropriation, payment, other financial assistance, contract, subcontract, license agreement, lease or other financial compensation agreement shall be awarded to a covered employer, or the owners thereof, as the case may be, that does not certify that it has complied with 8 U.S.C. § 1324a and §§ 353-12 and 353-14 of this article, with respect to its covered employees or with respect to the alien and nationality status of the owners thereof, as the case may be. All County contracts, subcontracts, license agreements, leases and other financial compensation agreements awarded shall set forth the obligations of the covered employer and owners as enumerated in this article.
B.
All covered employers, or the owners thereof, as the case may be,
shall inform their contractors and subcontractors to comply with the
provisions of this article for as long as the covered employer or
owner, as the case may be, is in receipt of compensation. Language
indicating the contractor's and subcontractor's requirement
to comply shall be included in any contract or agreement between a
covered employer and its contractors and subcontractors. A copy of
such subcontracts or other agreements shall be submitted to the County
and made available to the public upon request.
A.
This article shall apply to all actions occurring on or after January
1, 2007, and shall apply to:
(1)
All County contracts, subcontracts, license agreements, leases and
other financial compensation agreements entered into or renewed after
the applicability date of this article;
(2)
Amendments to all County contracts, subcontracts, license agreements,
leases and other financial compensation agreements entered into after
the applicability date of this article;
(3)
All loans, subsidies, tax incentives, funding, appropriations, payments,
and other financial assistance provided by the County after the applicability
date of this article; and
(4)
A covered employer, or the owners thereof, as the case may be, who
is constructing public works for the County of Suffolk under a loan
agreement and pursuant to County plans and specifications, even though
the project may not be 100% County-funded due to federal and/or state
aid that may be available.
B.
This article shall not apply as follows: § 353-12B of this article shall not apply to the subcontractors of not-for-profit corporations or the subcontractors of the owners thereof, as the case may be, as that term is defined in the New York Not-For-Profit Corporation Law.
C.
The Department of Labor shall not require not-for-profit corporations which have no employees to submit affidavits as described in § 353-12 of this article; rather, not-for-profit corporations shall certify on a form established by the Department of Labor that the corporation has no employees. A not-for-profit corporation must submit this form only once annually even if that corporation is the recipient of compensation under multiple contracts. If a not-for-profit corporation submits this form and thereafter hires an employee during the calendar year, the not-for-profit corporation must immediately notify the Department of Labor or the awarding agency and thereafter comply with all applicable provisions of this article.
[Added 8-5-2008 by L.L. No. 31-2008]
A.
Notwithstanding any provision of law to the contrary, any covered employer, or the owners thereof, as the case may be, who submit a false, fictitious or fraudulent affidavit to the County or awarding agency in connection with § 353-12 or 353-15 of this article shall, upon conviction, be guilty of a Class A misdemeanor, punishable by a fine of not less than $250 nor more than $2,000 or up to six months' imprisonment, or both. Each such violation shall constitute a separate and distinct offense.
B.
Notwithstanding any provision of law to the contrary, any covered employer, or the owners thereof, as the case may be, who violates any of the provisions of § 353-12 or 353-15 of this article, upon a first violation shall be subject to a civil penalty in an amount not less than $250 nor more than $1,000 for each day such covered employee remains employed by the covered employer, or for each day the owners thereof shall remain an owner, as the case may be. Any covered employer, or the owners thereof, as the case may be, who violates any of the provisions of § 353-12 or 353-15 of this article as set forth herein within the period of one year immediately subsequent to the first violation shall be guilty of a second violation, the civil penalty of which shall be in an amount not less than $2,000 nor more than $5,000 for each day such covered employee remains employed by the covered employer, or for each day the owners thereof shall remain an owner, as the case may be. Each such violation shall constitute a separate and distinct offense.
C.
Notwithstanding any provision of law to the contrary, any covered employer, or the owners thereof, as the case may be, who violates the provisions of § 353-14 of this article shall be subject to a civil penalty in an amount not less than $250 nor more than $2,000.
D.
Any covered employer, or the owners thereof, as the case may be, who violates the provisions of § 353-12, 353-14 or 353-15 of this article, more than two times, shall have its contract, subcontract, license agreement, lease or other financial compensation agreement terminated immediately; and, in the case of a County loan, subsidy or other form of financial assistance, same shall be declared in default for purposes of the County collecting on the full amount of the loan, subsidy or other form of financial assistance. In addition, such covered employers shall be barred from bidding on future County contracts and shall be ineligible to receive any future loans, subsidies or other financial assistance from the County.
E.
Any determination made hereunder by the County of Suffolk shall be
reviewable pursuant to Article 78 of the Civil Practice Law and Rules.
The Suffolk County Department of Labor shall promulgate such rules and regulations as it deems necessary and appropriate for the implementation and enforcement of any provisions of this article. Such rules shall govern the conduct of adjudicatory proceedings and appeals taken pursuant to a proceeding commenced under Article 78 of the Civil Practice Law and Rules relating to the assessment of civil penalties herein authorized and such other penalties authorized under § 353-17D of this article. Such rules shall further provide for due process procedural mechanisms and any other mechanisms deemed necessary by the Suffolk County Department of Labor. Such rules and regulations shall establish that the Suffolk County Department of Labor shall refer to the Suffolk County Human Rights Commission all complaints it receives of unlawful discrimination under § 353-12A and B of this article and all unlawful discriminatory practices, as that term is defined in Chapter 528, Human Rights, Article II, § 528-8, of the Suffolk County Code, of all covered employers, and the owners thereof, and all contractors and subcontractors of such covered employers, and the owners thereof.
