[HISTORY: Adopted by the Board of Trustees of the Village of Hempstead 11-7-2007 by L.L. No. 12-2007. Amendments noted where applicable.]
This chapter is promulgated for the purpose of ensuring that employees of the Village of Hempstead's contractors and subcontractors for service contracts and subcontracts earn an hourly wage to meet their basic needs, based upon the following findings:
That the Village of Hempstead provides service contracts and subcontracts to businesses that result in the creation or maintenance of a wide variety of employment opportunities in the Village of Hempstead.
That, while the Village of Hempstead has limited taxpayer resources to expend, it has a responsibility to set a standard for wages that permits employees and their dependents of the above-referenced businesses to meet their basic needs.
That the use of taxpayer dollars to promote sustenance and the creation of living-wage jobs will increase consumer income, reinvigorate neighborhood businesses and reduce the need for taxpayer-funded social programs.
That the creation of the living wage standards will relieve the undue burden placed upon the community and taxpayers who otherwise must further subsidize employers paying sub-poverty wages to the above-mentioned employees and their dependents.
As used in this chapter, the following terms shall have the meanings indicated:
- Payment by an entity subject to the provisions of this chapter to its employees or on their behalf of an amount no less than $1.50 per hour worked towards the provision of health benefits for employees and/or their dependents.
- BENEFITS SUPPLEMENT RATE
- $1.50 per hour, which may be paid to an employee in lieu of benefits. Such supplement rate shall be upwardly adjusted in proportion to any increase during the preceding 12 months of the consumer price index for medical care for the New York/Northern New Jersey/Long Island metropolitan statistical area.
- COVERED EMPLOYER
- The Village of Hempstead and any entity or person who is a Village of Hempstead contractor or subcontractor, or a Village of Hempstead lessee.
- COVERED FULL-TIME EMPLOYEE
- A person employed on a full-time basis by the Village or a covered employer pursuant to a contract the covered employer has with the Village; provided, however, that persons who are employed in a position covered pursuant to federal, state or local prevailing wage laws shall be exempt from this chapter. Any person who is a managerial, supervisory or professional employee shall not be considered an employee for purposes of this definition.
- COVERED PART-TIME EMPLOYEE
- A person employed on a part-time basis by the Village or a covered employer to perform work; provided, however, that persons who are employed in a position covered pursuant to federal, state or local prevailing wage laws shall be exempt from this chapter. Any person who is a managerial, supervisory or professional employee shall not be considered an employee for purposes of this definition.
- ENTITY or PERSON
- Any individual, sole proprietorship, partnership, association, joint venture, limited liability company, corporation or any other form of doing business.
- INTERMUNICIPAL AGREEMENT
- Any agreement or contract between the Village of Hempstead and any municipal corporation, any school district located in the Village of Hempstead or any special district located in the Village of Hempstead.
- LIVING WAGE
- An hourly wage rate of $12.50 per hour, phased in as provided below:
- A. From the effective date of this chapter through May 31, 2008, $9.50 per hour;
- B. From June 1, 2008, through May 31, 2009, $10.50 per hour;
- C. From June 1, 2009, through May 31, 2010, $11.50 per hour;
- D. From June 1, 2010, through May 31, 2011, $12.50 per hour.
- E. Beginning on June 1, 2014, the living wage shall be $14.91 per hour.[Amended 5-6-2014 by L.L. No. 5-2014]
- VILLAGE CONTRACTOR
- Any entity or person that enters into a Village of Hempstead service contract with the Village of Hempstead.
- VILLAGE OF HEMPSTEAD LEASE
- Any lease, concession agreement or other agreement authorizing any party to occupy, use, control or do business at property owned or controlled by the Village of Hempstead.
- VILLAGE OF HEMPSTEAD LESSEE
- Any entity leasing property from the Village of Hempstead pursuant to a Village of Hempstead lease.
- VILLAGE OF HEMPSTEAD SUBCONTRACTOR
- Any entity or person that is engaged by a Village of Hempstead contractor to assist in performing any of the services to be rendered pursuant to a Village of Hempstead service contract. This definition does not include any entity that merely provides goods relating to a Village of Hempstead service contract or that provides services of a general nature (such as relating to general office operations) to a Village of Hempstead service contractor which do not relate directly to performing the services to be rendered pursuant to the Village of Hempstead service contract. An entity shall be deemed a Village of Hempstead subcontractor for the duration of the period during which it assists a Village of Hempstead contractor in performing the Village of Hempstead service contract.
- VILLAGE SERVICE CONTRACT
- A contract the Village of Hempstead has with a contractor for the furnishing of services to or for the Village and that involves an expenditure equal to or greater than $25,000, except contracts where services are incidental to the delivery of products, equipment or commodities. A contract for the purchase or lease of goods, products, equipment, supplies or other personal property is not a service contract for the purposes of this definition. This definition shall not include contracts awarded pursuant to the Village of Hempstead's emergency procurement. This definition shall not include intermunicipal agreements.
Applicability. Covered employers shall pay no less than a living wage to their covered full-time and part-time employees. Covered employers shall also either provide covered full-time employees benefits or supplement their hourly wage rate by an amount no less than the health benefits supplement rate; provided that, in the case of employees performing nonconstruction work that is covered by state or local prevailing wage laws, covered employers shall pay the greater of a living wage or said prevailing wage for nonconstruction work.
Certification of covered employers.
Prior to entering into any Village service contract or lease agreement with the Village of Hempstead, a covered employer seeking such contract or lease shall provide the Village with a certification sworn (under penalty of perjury) and signed by an authorized representative, along with each proposal containing the following information:
The name, address and telephone number of the chief executive officer of the employer;
A statement that, if the Village service contract or lease is awarded, the employer agrees to comply with the requirements of this chapter and with all applicable federal, state and local laws;
The following workforce information concerning the employees that will be covered by this chapter:
The number of the entity's employees covered by this chapter; and
A record of any instances during the preceding five years in which the employer has been found by a court or government agency to have violated federal, state or local laws regulating payment of wages or benefits, labor relations or occupational safety and health, or where any government body initiated a judicial action, administrative proceeding or investigation of the applicant in regard to such laws.
A Village contractor shall, each year throughout the term of the Village service contract, submit to the Village an updated certification whenever there have been material changes to information contained in the current certification.
Payroll records. Every employer shall maintain original payroll records for each of its employees reflecting the days and hours worked on contracts, projects or assignments that are subject to the requirements of this chapter, and the wages paid and benefits provided for such hours worked, for a period of four years after completion of the term of the Village service contract or lease.
Duty to Village subcontractors. A covered employer shall ensure that its subcontractors comply with the requirements of this chapter, and shall provide written notification to them of those requirements and include in any contract or agreement with such subcontractors a provision requiring them to comply with those requirements.
No reduction in collective bargaining wage rates. Nothing in this chapter shall be read to require or authorize any covered employer to reduce wages established by a collective agreement or required under any prevailing wage law.
Reduction in nonwage benefits prohibited. No covered employer shall fund wage increases required by this chapter or respond to the provisions of this chapter by reducing the health insurance, pension, vacation or other nonwage benefits of any of its employees.
The Village shall promulgate rules and regulations necessary and appropriate for the implementation of this chapter.
Covered employers who fail to submit documents, declaration or information required to demonstrate compliance with this chapter shall be deemed nonresponsive and subject to disqualification and other pfosanctions set forth herein. Where a covered employer has been determined to have violated any provision of this title, such covered employer shall be given written notice thereof by the Village. If, within 30 days after such covered employer receives such notice, he or she fails to cure such breach, the Village shall have the right to pursue any rights or remedies available under the terms of its contract or lease agreement with such employer, or under applicable law, including, but not limited to:
Suspension and termination of such contract or financial assistance;
Payback of any or all of the contract awarded by the Village;
Declaration of the employer as ineligible for future Village service contracts and leases until all penalties and restitution have been paid in full;
A fine payable to the Village of Hempstead in the amount of $500 for each week for each employee found not to have been paid in accordance with this title; and
Wage restitution for each such employee.
The Village shall develop an administrative procedure and appeal process for determining compliance with this chapter.
This section shall not be construed to authorize an action against the Village or any of its officers or employees related to either the enforcement or implementation of this title.
An employee may, in addition to any other remedy provided by this chapter, institute an action in any court of competent jurisdiction against the employer alleged to have violated this chapter. For failure to pay wages or provide benefits required under this chapter, such court may award any of the remedies provided under § 198 of the New York State Labor Law. For failure to comply with other requirements of this chapter, including protections against retaliation and discrimination, the court may award any appropriate remedy at law or equity, including but not limited to back pay, payment for wrongly denied benefits, interest, other equitable or make-whole relief reinstatement, injunctive relief and/or compensatory damages. The court shall award reasonable attorney's fees and costs to any complaining party who prevails in any such enforcement action.
Notwithstanding any inconsistent provision of this chapter or of any other general, special or local law, ordinance, county charter or administrative code, an employee affected by this chapter shall not be barred from the right to recover the difference between the amount paid to the employee and the amount which should have been paid to the employee under the provisions of this chapter because of the prior receipt by the employee without protest of wages or benefits paid, or on account of the employee's failure to state orally or in writing upon any payroll or receipt which the employee is required to sign that the wages or benefits received by the employee are received under protest, or on account of the employee's failure to indicate a protest against the amount, or that the amount so paid does not constitute payment in full of wages or benefits due the employee for the period covered by such payment.
An action pursuant to this section must be commenced within three years of the date of the alleged violation, or within three years of the final disposition of any administrative complaint or action concerning the alleged violation, or, if such a disposition is reviewed in a proceeding pursuant to Article 78 of the New York State Civil Practice Law and Rules, within three years of the termination of such review proceedings. No procedure or remedy set forth in this chapter is intended to be exclusive or a prerequisite for asserting a claim for relief to enforce any rights hereunder in a court of law. This chapter shall not be construed to limit an employee's right to bring a common law cause of action for wrongful termination.
This section shall not be construed to authorize an action against the Village or any of its officers or employees relating to either the enforcement or implementation of this title.
All requests for proposal (RFPs), Village contracts and lease agreements subject to this chapter shall contain the following two paragraphs or substantially equivalent language:
The provisions of this chapter shall augment the Village's normal and customary procedure for administering its contracts. The Village shall administer the requirements of this chapter as follows:
The Village shall develop rules and regulations necessary and appropriate to review contract documents to ensure that relevant language and information are included in Village RFPs, agreements and other pertinent documents.
The Village shall develop rules and regulations necessary and appropriate for the monitoring of the operations of the contractors and subcontractors to ensure compliance, including the review, investigation and resolution of specific concerns or complaints about the employment practices of a covered employer relative to this chapter. In such cases, the Village shall attempt to resolve the problem within 30 days.
This chapter shall apply to all actions occurring on or after the effective date of this chapter and shall apply to:
Exemption for minors, seasonal and employment programs, the disabled, and child care. This chapter shall not apply to:
Any employee who is:
[Amended 3-16-2010 by L.L. No. 5-2010]
Under the age of 18 who is claimed as a dependent for federal income tax purposes and is employed as an after-school employee; or
Any employee who has been hired as a summer or seasonal employee; or
Employed as a trainee in a bona fide training program consistent with federal and state law where the training program has the goal that the employee advances into a permanent position; provided, however, that this exemption shall apply only when the trainee does not replace, displace or lower the wages or benefits of any employee, and the training does not exceed two years.
Any disabled employee, where such disabled employee is:
Any Village service contract where the application of this chapter in a particular case would violate any specific state or federal statutory, regulatory or constitutional provision.
No effect on Village wage pattern or collective bargaining agreements. Nothing in this chapter shall be construed to establish a wage or benefit pattern for Village employees or in any effect supersede, amend or alter any terms of any collective bargaining agreements entered into by the Village and its employees.
It shall be unlawful for any employer to retaliate, discharge, demote, suspend, take adverse employment action in the terms and conditions of employment or otherwise discriminate against any employee for reporting or asserting a violation of this chapter, for seeking or communicating information regarding rights conferred by this chapter, for exercising any other rights protected under this chapter, or for participating in any investigatory or court proceeding relating to this chapter. This protection shall also apply to any covered employee or his or her representative who in good faith alleges a violation of this chapter, or who seeks or communicates information regarding rights conferred by this chapter in circumstances where he or she in good faith believes this chapter applies. Taking adverse employment action against a covered employee or his or her representative within 60 days of the covered employee engaging in any of the aforementioned activities shall raise a rebuttable presumption of having done so in retaliation for those activities. Any covered employee subjected to any action that violates this section may pursue administrative remedies or bring a civil action pursuant to § 11-5 of this chapter in a court of competent jurisdiction.