An ABC Members Guide to the Roadway Excavation Quality Assurance Act
On August 16, 2023, Governor Hochul signed the Roadway Excavation Quality Assurance Act (A.5608/S.4887), now called Labor Law section 224-F. It took effect on September 15, 2023, and will be enforced on all contracts, bids, or permits issued on or after this date.
The ABC team has been fighting against this bill since it was introduced in 2019. Click here to review our memo in opposition. It was a priority issue when ABC brought our members to Albany to advocate against it, and our team had countless meetings with the Legislature and the Governor, expressing our concerns about the impact this law would have. Here is an overview of this new law and how it will impact ABC members, especially those working for utility companies.
Here is what this law will change:
- The new law mandates that whenever a contractor gets a permit to open or close a street for utility work, they must pay the prevailing wage to all the workers. That includes opening or closing a road or sidewalk, curb cuts, etc.
- The law also imposes certain requirements on government entities before issuing permits for covered excavation projects.
- These permits may not be issued until an agreement confirming the payment of prevailing wages has been contractually mandated and filed with the department of jurisdiction.
- All of these permits issued after the effective date shall include a copy of this law.
- It also establishes additional record-keeping requirements. Contractors and subcontractors to a utility are now always required to keep records of the payment of prevailing wages, not just when a local law or ordinance requires them.
- These contractors and subcontractors must submit certified payrolls to the department of jurisdiction pursuant to Article 8 of the New York State Labor Law.
Frequently Asked Questions (Please Read and Understand Each Question)
The New York State Department of Labor has issued a Frequently Asked Questions sheet to clarify some major questions that have come up from this law. You can access this FAQ below:
What if an open-ended or long-term contract for covered excavation projects was signed or solicited before the Effective date of September 15, 2023?
- Then, any specific project (specific location/scope of work specified in a permit) under that contract that is already underway or for which a permit was already obtained or applied is not subject to this law.
- Any new project/location under that contract that requires a new permit, applied for on or after the effective date, will be subject to the law.
If a general contract has already been awarded, but the subcontracts have not been by the effective date, will the subcontracts be subject to this law?
- No, the general contract controls the statute's applicability to the project.
- If the general contract was long-term or open-ended, see the question above.
Does this law only apply to “excavation”?
- No - projects requiring a permit to excavate, open, or otherwise use a street to perform utility work are covered by this law.
Does this law cover only the opening/excavation of the street or all work performed on the project?
- All the utility work in, on, or under the street is covered, including temporary patching to final repair.
What about boring projects that go entirely underneath the street?
- The work is covered if a permit is required to access the street or the ground below it.
Is work performed adjacent to the street for which the permit was issued to open/excavate/use also subject to
- Work in, on, or under the adjacent curb, sidewalk, shoulder area, or right of way is covered if a permit is required to excavate, open, or use the street.
- Work performed on private property past the curb or right of way is not subject to this law.
- NOTE: If the project costs are in excess of $5 million dollars and it received public funding greater than or equal to 30% of the project costs, then Labor Law section 224-a may apply.
What is defined as a street?
- A “street” means any highway, road, avenue, lane, or alley which the public has a right to use
Is the “contract” date the date of issuance of the permit by the public entity or the date the contract between the utility and contractor was signed?
- A contract date is the date an actual contract between the utility and contractor was signed.
What if the work performed required a permit, but no permit was obtained?
- The work is still covered, and you must still pay the Prevailing Wage.
What utility work is covered by this law?
- Electric, gas, water, steam, sewer, fuel, geothermal, and telephone/telegraph
What is considered a cable television company?
- Pursuant to the Public Service Law: "Cable television company" shall mean any person owning, controlling, operating, managing, or leasing one or more cable television systems within the state.\
- “Cable television system" shall mean any system that operates for hire the service of receiving and amplifying programs broadcast by one or more television or radio stations or any other programs
originated by a cable television company or any other party, and distributing such programs by wire, cable, microwave, or other means, whether owned or leased, to persons in one or more municipalities who subscribe to such service.
- It does not include any system that serves fewer than fifty subscribers or any master antenna television system.
What if a cable television company also performs other utility work? Are they covered by this law?
- If the work being performed relates to a utility defined in section 2(23) of the Public Service Law, then it will be considered a utility company subject to the provisions of this law for that project.
What about broadband internet companies?
- They're not included in the scope of the Public Services Law section 2(23) and, therefore, are not considered a utility for purposes of this law.
- NOTE: Work performed to extend broadband internet infrastructure that receives certain ConnectAll funding may be subject to the prevailing wage requirements of Section 224-E.
What prevailing wage rates apply to the different types of utility work?
- If you're unsure what wage rates are enforced for specific utility work in your region, please contact your nearest Bureau of Public Work District Office to find out: https://dol.ny.gov/public-work-and-prevailing-wage-contact
Who should request a PRC number?
- The PRC number is the prevailing wage rate case number assigned to a public work project, covered private project, or any other project subject to prevailing wages pursuant to labor law articles 8 & 9
- The department of jurisdiction is responsible for obtaining a PRC number from the Bureau of Public Works.
Who needs to retain certified payrolls?
- Contractors and subcontractors performing covered work and the department of jurisdiction/permit issuing department.
Other Helpful Resources
We are well-versed and here to help you navigate the changes this new law will bring. This will inevitably have a huge impact on the construction industry, and it is vital that you understand these changes to avoid potential new wage theft violations that the Governor recently signed into law. Click here to review them. Also, contractors must understand annualization now that they are paying prevailing wage for this work that was not traditionally subject to it. The Chapter has had an expert explain New York State's annualization rules. Click here to access our webinar library.
ABC is here to help with anything you need, and we will continue to fight against the harmful legislation that constantly churns through Albany.