Article 02. Department of Labor
Section 10. Department of labor; commissioner of labor.
There shall continue to be in the state government a department of labor. The head of the department shall be the commissioner of labor. The commissioner of labor shall be appointed by the governor, by and with the advice and consent of the senate and hold office until the end of the term of the governor by whom he was appointed, and until his successor is appointed and has qualified. The present commissioner of labor shall be the head of such department and shall hold office until the expiration of his present term and until his successor is appointed and has qualified, subject to the provisions of the public officers law. Whenever the industrial commissioner is referred to or designated in any law, rule, regulation, contract or document heretofore or hereafter enacted, adopted or executed, such reference or designation shall be deemed to refer to the commissioner of labor.
Section 10-a. Domestic violence policy.
The commissioner shall study the issue of employees separated from employment due to acts of domestic violence as referred to in and qualified by section four hundred fifty-nine-a of the social services law. The commissioner shall consult with the New York state office for the prevention of domestic violence and its advisory council, the department of social services, the division of women and members of the public in preparing such study. Such study shall include a review of case histories in which unemployment compensation was sought and an analysis of the policies in other states. A copy of such study shall be transmitted to the temporary president of the senate and the speaker of the assembly on or before January fifteenth, nineteen hundred ninety-six and shall contain policy recommendations.
Section 10-b. Domestic violence employee awareness and assistance.
The commissioner shall assist the office for the prevention of domestic violence in the creation, approval and dissemination of the model domestic violence employee awareness and assistance policy as further defined in subdivision nine of section five hundred seventy-five of the executive law. Upon completion and approval of the model plan as outlined in subdivision nine of section five hundred seventy-five of the executive law, the commissioner shall assist in the promotion of the model policy to businesses in New York state.
Section 11. Deputy commissioner.
There shall be a deputy commissioner, who shall be appointed by and removed at the pleasure of the commissioner.
Section 12. Transmission of labor market information.
1. For the purposes of this section:
a. Department means the department of labor of the state of New York.
b. Commissioner means the industrial commissioner of the state of New York.
c. Education department means the education department of the state of New York.
d. Labor market information is defined to include, but not be limited to, industry and occupational projections for those standard metropolitan statistical areas for which the department compiles such information and for the state of New York, "Applications and Openings" publication, and the "New York State Annual Planning Report", providing, however, that the commissioner shall have the power to include additional publications, projections and other data to this definition of labor market information.
2. When it is jointly determined by the department and the education department that labor market information prepared by the department is adequate in this prepared form, the department shall transmit a copy of such information to: every school district in the state of New York maintaining approved career education programs, with a list of such school districts to be furnished to the department by the education department; every board of cooperative educational services maintaining approved career education programs, with a list of such boards of cooperative educational services to be furnished to the department by the education department; and every community college and agricultural and technical institute in the state of New York maintaining approved career education programs, with a list of such colleges and institutes to be furnished to the department by the education department. The education department shall regularly update such lists to keep them current and transmit changes to the department expeditiously.
3. The commissioner shall transmit to those school districts, boards of cooperative educational services and community colleges and agricultural and technical institutes located within a particular labor market area, labor market information compiled for that area.
4. The transmission of labor market information shall occur as frequently as such labor market information is compiled or published by the department, and in as expeditious a manner as possible following such compilation or publication.
5. If a publication noted by title in this section shall be discontinued by the department, the department shall transmit, pursuant to the provisions of this section, the publication published by the department which, in its opinion, provides the information most similar to that information which had previously been provided by the discontinued publication.
6. If a publication noted by title in this section shall have such title changed, the department shall continue to transmit such publications with its new title.
7. When the department and the education department jointly determine that labor market information prepared by the department, to be transmitted pursuant to this section, requires an explanatory analysis to be utilized to its fullest potential, the education department shall provide an analysis of the information, written in clear, concise and easily understandable language. Such analysis shall consider, but not be limited to a consideration of, the following: instructions for the proper use of such information by individuals involved in the planning and development of career education, the proper use of such information by individuals involved in vocational and educational guidance, and the proper use of such information by current and prospective career education pupils in the selection of career education programs likely to offer the greatest potential for employment upon graduation.
8. To effectuate the purposes of this section, the commissioner and the commissioner of education, or their authorized designees, shall meet on a regular basis which shall not be less than once a month, excepting July and August when such meeting shall be discretionary.
9. It shall be the responsibility of such school districts, boards of cooperative educational services, and community colleges and agricultural and technical institutes in receipt of such publications and sources of labor market information enumerated in this section to provide copies of such labor market information to those individuals responsible for vocational and educational guidance at such school districts, boards of cooperative educational services, community colleges and agricultural and technical institutes.
Section 12-c. Passenger tramway advisory council.
1. To advise the commissioner of labor in relation to his duties and responsibilities under the provisions of section two hundred two-c and article twenty-six of this chapter, there shall be in the department an advisory council, to be known as the passenger tramway advisory council, consisting of seven members to be appointed by the governor, by and with the advice and consent of the senate, and one of whom shall be designated as chairman by the governor. Each of four members of the council shall be an officer or employee of a ski center, and three members of the council shall be representatives of the public and shall not be, nor within five years immediately preceding appointment have been an officer or employee of a ski center.
2. The term of each member of such advisory board shall be for five years, or until a successor is appointed. Any member of the board chosen to fill a vacancy occurring otherwise than by expiration of term shall be appointed for the unexpired term of the member whom he is to succeed. Any member of the council may be removed by the governor for misconduct, incompetence or neglect of duty after being given a written statement of the charges and an opportunity to be heard thereon.
3. Each member of the advisory council shall serve without salary or other compensation, but shall be allowed necessary and actual transportation expenses incurred in the performance of his or her duties, and when in travel status shall receive an additional fifty-five dollars and when in travel status in a county or a city with a population in excess of seven hundred thousand an additional seventy-five dollars.
4. The advisory council shall consider all matters in connection with ski tows, other passenger tramways and downhill skiing referred to it by the commissioner and advise him with respect thereto, and on its own initiative, or upon the suggestion of others, may make such recommendations to the commissioner in connection with ski tows, other passenger tramways and downhill skiing as, after consideration by it, may be deemed necessary.
5. The commissioner shall designate an officer or employee of the department to act as secretary of the advisory council, who shall not be a member of such council and who shall not receive any additional compensation therefor.
6. The advisory council may adopt rules and regulations to govern its own proceedings. The secretary shall keep a complete record of all proceedings of the advisory council which shall show the names of the members present at each meeting and every matter considered by the advisory council and the action taken thereon. Such records shall be filed in the office of the department.
*Section 12-d. Advisory council on farm labor safety.
1. There is hereby established in the department of labor an advisory council on farm labor safety to make a study and investigation of the problems of providing adequate protection to farm workers against injuries arising out of their employment. Such study and investigation shall include: (a) the unique and special conditions involved in farm safety; (b) the need for education and training programs for the protection of farm workers against accidents; (c) the identification of areas where existing educational and training programs are insufficient to provide adequate protection to farm workers against accidents; (d) the methods of encouraging farmers and farm groups to establish such education and training programs; and (e) all matters and approaches for the protection of farm workers against accidents referred by the industrial commissioner.
2. The advisory council shall consist of ten members appointed by the industrial commissioner. The members shall be representative of farmers, growers, farm workers and other persons and groups concerned with agricultural safety. One of the members shall be designated as chairman by the industrial commissioner. The chairman of the board of standards and appeals, the commissioner of agriculture and markets, the commissioner of education, and the dean of the college of agriculture at Cornell University, or their designated representatives, shall be additional members of the council, who shall serve by virtue of their positions, without voting power.
The industrial commissioner shall designate an officer or employee of the department of labor to act as secretary of the advisory council, who shall not be a member of such council and who shall not receive any additional compensation therefor.
3. The advisory council may take testimony, subpoena witnesses, and require the production of books, records and papers, and hold public or private hearings.
4. The advisory council may request and shall receive such assistance, service and data from any agency of the state or from any political subdivision thereof as will enable it properly to carry out its activities hereunder and effectuate the purposes herein set forth.
5. The advisory council shall, from time to time, but not less frequently than on December first of each year, submit a report to the industrial commissioner, and shall submit a final report on or before March thirty-first, nineteen hundred seventy-two. Such reports may include such recommendations as the council finds appropriate on the basis of its studies and investigations.
6. The appointed members of the advisory council shall receive no compensation for their services but shall receive in lieu of expenses incurred in the performance of their duties the sum of sixty dollars for each day or part thereof spent in attendance at meetings or otherwise in the work of the council, but no member shall receive in excess of twelve hundred dollars during any one fiscal year.
7. The advisory council may adopt rules and regulations to govern its own proceedings. The secretary shall keep a record of all proceedings of the council, which shall show the name of each member present at the meetings and every matter considered by the council and the action taken thereon. Such records shall be filed in the office of the secretary of the department of labor.
* NB Expired March 31, 1972
Section 13. Oaths of office.
The industrial commissioner, members of the industrial board of appeals and the deputy commissioner shall, before entering upon the duties of their office, take and subscribe the constitutional oath of office. Such oaths shall be filed in the office of the department of state.
Section 14. Offices of the department.
The principal office of the department shall be in the city of Albany in rooms designated by the commissioner of general services as provided by law. There shall be a branch office in the city of New York and other branch offices may be established and maintained by the department in such places as the industrial commissioner may determine and for which appropriations are made by the legislature. The industrial commissioner may, with the commissioner of commerce and the commissioner of transportation, develop and institute a procedure for the uniform collection of employment and economic data within the state for use in connection with the scheduling of public works projects.
Section 15. Seal.
The commissioner may adopt a seal of the department and require that it be used for the authentication of orders and proceedings and for such other purpose as he may prescribe.
Section 16. Vacancies and removals.
If a vacancy shall occur or exist in the office of the industrial commissioner it shall be filled by appointment by the governor, by and with the advice and consent of the senate, for a term expiring with that of the governor by whom the appointment was made. The governor may remove the commissioner in the manner provided by the public officers law.
Section 17. Expenses.
The commissioner shall devote his entire time to the duties of his office. The reasonable and necessary expenses of the department and the reasonable and necessary traveling and other expenses of the commissioner, deputy commissioner and other officers and employees of the department, while actually engaged in the performance of their duties, outside of the city of Albany, or if any such officer or employee be in charge of or actually employed at a branch office of the department, the reasonable and necessary traveling and other expenses outside of the place in which such branch office is located, shall be paid from the state treasury upon the audit and warrant of the comptroller, upon vouchers approved by the commissioner.
Section 18. Officers and employees.
The officers, deputy commissioners and employees of the department of labor in office when this section takes effect shall continue in office subject to the power of removal or the appointment of their successors as provided in this chapter. There shall be in such department and the commissioner may appoint such heads of divisions or bureaus and such inspectors, investigators, statisticians and other assistants and employees as he shall deem necessary for the exercise of the powers and the performance of the duties of the department.
The commissioner may transfer officers or employees from their positions to other positions in the department, or abolish or consolidate such positions. The commissioner may remove from office any officer or employee in the department. All such transfers, removal of employees or officers and abolishment or consolidation of positions shall be made in accordance with the provisions of the civil service law.
Section 18-c. Sick leave for per diem employees.
A per diem officer or employee holding a position in the competitive, non-competitive or labor class of the civil service of the state whose compensation or salary is on a per diem basis may be granted a sick leave with pay of not more than thirty days in each year by the head of the department, bureau, commission, agency, board or council of said state. The provisions of this section shall not apply to any employee who is subject to the rules governing sick leave, vacation and other time allowances adopted by the state civil service commission pursuant to law.
Section 20. Divisions or bureaus.
Existing divisions or bureaus in the department shall continue until changed, consolidated or abolished pursuant to this section. The commissioner may establish such divisions or bureaus as may be necessary for the administration and operation of the department, under this chapter, and may change, consolidate or abolish divisions or bureaus. Each division and bureau shall be subject to the supervision and direction of the commissioner, and shall have jurisdiction of such matters, exercise such powers and perform such duties as may be assigned to it by the commissioner.
Section 21. General powers and duties of commissioner.
The commissioner shall be the administrative head of the department and shall have, notwithstanding any provision of law to the contrary, general administrative supervision over the several divisions, boards, commissions, bureaus, and agencies thereof whether established under the provisions of this chapter or the workmen's compensation law and in connection therewith, the commissioner:
1. Shall enforce all the provisions of this chapter and may issue such orders as he finds necessary directing compliance with any provision of this chapter, except as in this chapter otherwise provided;
2. Shall cause proper inspections to be made of all matters prescribed by this chapter;
3. Shall cause investigations to be made of the condition of women in industry;
*3-a. Shall prepare and submit to the governor, the temporary president of the senate and the speaker of the assembly on or before the thirtieth day of September an annual report on the status of older workers including those over the age of sixty-five in New York state. Such report shall describe in detail the employment needs of such older workers and the ability of existing state employment services to deal with the problems of older workers. The report shall consider the need for affirmative action, training, counseling, development of alternative work schedules, job development activities within the public and private sector, and the need for improved use by older workers of publicly funded programs for employment and employment-related services. The report shall also consider the economic impact of unemployment among older workers and shall contain recommendations, including the associated costs, for improved programs or for changes in statutes or regulations to provide increased employment opportunities for older workers.
* NB Expired October 1, 1981
4. Shall inquire into and report on the causes of all strikes, lockouts and other industrial controversies or labor disputes, and may appoint boards of inquiry for that purpose;
5. Shall institute methods and procedures for the establishment of a program for voluntary compliance by employers and employees with the requirements of this act and all applicable safety and health standards and rules and regulations promulgated pursuant to the authority of this article;
6. Shall provide a method of encouraging employers and employees in their efforts to reduce the number of safety and health hazards arising from undesirable, inappropriate, or unnecessary working conditions at the workplace and of stimulating employers and employees to institute new and to perfect existing programs for providing safe and healthful working conditions;
7. May provide for the establishment and maintenance of public employment offices for the purpose of securing employment for men, women and children;
8. May make investigations, collect and compile statistical information and report upon the conditions of labor generally and upon all matters relating to the enforcement and effect of the provisions of this chapter and of the rules thereunder;
9. May enforce any lawful municipal ordinance, by-law or regulation relating to any place affected by the provisions of this chapter, not in conflict with the provisions of this chapter;
10. May investigate the condition of aliens relative to their employment in industry;
11. May issue such regulations governing any provision of this chapter as he finds necessary and proper.
12. Shall compile and publish, on an annual basis, a list of all regulations and notices required to be posted by employers for the benefit of their employees pursuant to this chapter, the workers' compensation law and any other state or federal law, rule or regulation.
13. Shall adopt regulations prescribing the methodology for establishing an ongoing monthly statewide cost of labor index and an annual county or appropriate multi-county labor market composite wage rate, in consultation with the commissioner of education, for the purpose of computation of building aid to school districts, as required by subparagraph one of paragraph a of subdivision six of section thirty-six hundred two of the education law.
* Section 21-a.
The industrial commissioner is hereby authorized to enter into agreements with the appropriate agencies of the United States, whereby, in accordance with a law of the United States, the commissioner shall cooperate with such appropriate agencies of the United States in the administration and operation of programs of vocational training or retraining, or the development of job skills, authorized by such law. The commissioner shall cooperate with other departments, divisions and agencies of the state in connection with any such programs and perform such acts and exercise such powers as may be necessary to entitle the state to receive benefits under such agreement. The commissioner is further authorized to receive and disburse funds from the United States or any agency thereof, in accordance with any such agreement.
*NB Enacted without section heading.
Section 21-b. Power of the industrial commissioner to make agreements for federal reimbursement to the state of certain expenses in connection with veterans' training.
The industrial commissioner is hereby authorized to enter into agreements with the United States veterans' administration to reimburse the state for expenses heretofore incurred or hereafter to be incurred in connection with the administration of the training of veterans and in the rendition of other services by the state as provided for under title two of the "Servicemen's Readjustment Act of 1944" as now in force or as it may hereafter be amended, except with respect to payments by the federal government for tuition, and other fees and charges incidental thereto, of veterans attending state educational institutions.
Section 21-c. Power of commissioner to enter into agreements relating to certain federal acts.
The commissioner is hereby authorized and empowered to take such steps, not inconsistent with law, as may be necessary or desirable for the purpose of procuring for the people of this state all of the benefits and assistance, financial or otherwise in connection with or provided or to be provided for by or pursuant to, the federal farm labor contractor registration act of nineteen hundred sixty-three, the federal economic opportunity act of nineteen hundred sixty-four, as amended, the federal fair labor standards act of nineteen hundred thirty-eight, as amended, and the occupational safety provisions of any federal act. The commissioner may enter into agreements with appropriate agencies of the United States, and with any political subdivision of the state, as may be necessary or required to receive such benefits and assistance. The commissioner is further authorized to receive and disburse such funds from the United States or any agency thereof, or from any political subdivision of the state, in accordance with the terms of any such agreement. The commissioner shall cooperate with other departments, divisions, agencies, and political subdivisions of the state in connection with any such agreement.
Section 21-d. Power of commissioner to enter into agreement relating to information obtained by the state directory of new hires.
The department, through the commissioner, shall enter into the agreement provided for in section one hundred seventy-one-h of the tax law, and shall take such other actions as may be necessary to carry out the agreement provided for in such section for matching beneficiary records of workers' compensation and state employment security programs with information provided by employers to the state directory of new hires for the purposes of verifying eligibility for such benefits and for administering workers' compensation and state employment security programs.
Section 21-e. Powers of the commissioner to prepare and issue a notice to be posted at worksite.
1. The commissioner is hereby authorized to prepare and issue a notice to be posted at the worksite of each and every apparel or garment manufacturer or contractor known to the department in this state. Such notice shall be in English, Spanish, Chinese and Korean, be printed in at least ten point type and shall clearly state:
(a) The duties of employers with regard to the rights of employees to the receipt and payment of wages;
(b) A toll free number at the department to which employees may direct questions or register complaints concerning an employer's failure to pay wages or the conditions of employment; and
(c) The address of the regional department to file a complaint.
2. The notice required pursuant to subdivision one of this section shall be distributed to employers in the apparel and garment industries to be posted in a visible and prominent location within the worksite.
Section 23. Administrative regulations.
The commissioner may make, amend and repeal regulations necessary for the internal administration of the department, and not in conflict with the rules adopted by the workmen's compensation board or the industrial board of appeals pursuant to this chapter for the enforcement of the labor law. Such regulations shall not be deemed rules within the meaning of this chapter unless the context otherwise requires.
Section 24. Delegation of powers by commissioner.
The commissioner may by order filed in the department delegate any of his powers to or direct any of his duties to be performed by the deputy commissioner or a head of a division or bureau of such department.
Section 25. Power to enter and inspect premises.
The commissioner or the officers and employees of the department shall inspect every place which is, or which they have reasonable cause to believe is, affected by the provisions of this chapter, and they may in the discharge of their duties enter any such places.
Section 26. Examination of books and papers.
All papers, books, records or other documents required to be kept by the provisions of this chapter or of the industrial code shall at all times be open for the inspection of the commissioner and the officers and employees of the department, and the persons in charge thereof shall afford every reasonable facility for their examination and permit copies to be made when required by the commissioner.
Section 27. Safety and health standards.
1. Application.
Notwithstanding any other provision in this chapter, a safety or health standard promulgated under this section shall apply only to employees not covered by a federal occupational safety or health standard promulgated under section six of the United States Occupational Safety and Health Act of 1970 (Public Law, 91-596). Provided, however, that no standard promulgated under this section shall apply to employees of the state, its political subdivisions and of any other governmental agency or instrumentality, to whom section twenty-seven-a of this chapter is applicable.
2. Standards.
a. The commissioner shall by rule adopt, amend or repeal safety and health standards which provide reasonable and adequate protection to the lives, safety or health of employees and of persons lawfully frequenting a place of employment.
b. The commissioner may require licenses as a condition of carrying on any industry, trade, occupation or process which the commissioner finds contains special elements of danger to the lives, safety or health of employees to whom this section is applicable or of persons lawfully frequenting the place of employment of such employees. The commissioner may establish a schedule of fees for such licenses, require medical inspection and supervision of persons so employed or applying for such employment, and may prescribe other appropriate requirements.
c. Any person who may be adversely affected by a standard issued under this section may at any time within sixty days after the effective date of such standard, commence a proceeding for judicial review pursuant to article seventy-eight of the civil practice law and rules.
d. The safety and health standards promulgated under this section shall for all purposes have the full force and effect of law and shall be enforced in the same manner as the provisions of this article.
e. Any provision of this chapter and any rule or regulation issued under the provisions of this chapter relating to the protection of the safety or health of employees to whom this section is applicable and of persons lawfully frequenting the place of employment of such persons which is in effect on the date that this act becomes effective shall be deemed to be a safety and health standard issued under this section, with all provisions of this article applicable, and shall continue in effect until superseded by a corresponding safety and health standard issued on or after the effective date of this act.
f. The provisions of this section shall supersede any other provision of this chapter which is inconsistent or in conflict therewith.
3. Regulations.
The commissioner may promulgate such regulations as he shall consider necessary and proper to effectuate the purposes and provisions of this section.
Section 27-a. Safety and health standards for public employees.
1. Definitions. As used in this section:
a. "Employer" means the state, any political subdivision of the state, a public authority or any other governmental agency or instrumentality thereof.
b. "Employees" means persons permitted to work by an employer.
c. "Authorized employee representative" means an employee authorized by the employees or the designated representative of an employee organization recognized or certified to represent the employees pursuant to article fourteen of the civil service law.
d. "Public employee" means any employee of the state, any political subdivision of the state, a public authority or any other governmental agency or instrumentality.
e. "System components" means life safety harness, belts, ascending devices, carabiners, descent control devices, rope grab devices and snap-links.
2. Application. A safety or health standard promulgated under the provisions of this section shall apply to every public employee and the commissioner shall have exclusive authority to enforce such standard in accordance with the provisions of this chapter, notwithstanding any other safety or health standard or any other provision in this chapter or in any other general, local or special law or charter. However, this section shall not supersede any inconsistent provision of the education law, as applied to any school building certified by the commissioner of education as being in compliance with such law, and the regulations promulgated pursuant thereto, on the effective date of this section, or as applied to any application for certification which is pending before the effective date of this section.
3. Duties.
a. Every employer shall:
(1) furnish to each of its employees, employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to its employees and which will provide reasonable and adequate protection to the lives, safety or health of its employees; and
(2) comply with the safety and health standards promulgated under this section. In applying this paragraph, fundamental distinctions between private and public employment shall be recognized.
b. Every employee shall comply with the safety and health standards and all rules, regulations and orders issued pursuant to this section which are applicable to his own actions and conduct.
c. The state shall promulgate a plan for the development and enforcement of occupational safety and health standards with respect to public employers and employees, in accordance with section eighteen (b) of the United States Occupational Safety and Health Act of 1970 (Public Law 91-596) which provides: "(b) Any State which, at any time, desires to assume responsibility for development and enforcement therein of occupational safety and health standards relating to any occupational safety or health issue with respect to which a Federal standard has been promulgated under section 6 shall submit a State plan for the development of such standards and their enforcement."
4. Safety and health standards. a. The commissioner shall by rule adopt all safety and health standards promulgated under the United States Occupational Safety and Health Act of 1970 (Public Law, 91-596) which are in effect on the effective date of this section, in order to provide reasonable and adequate protection to the lives, safety and health of public employees and shall promulgate and repeal such rules and regulations as may be necessary to conform to the standards established pursuant to such act or pursuant to paragraph b of this subdivision.
b. Notwithstanding the provisions of paragraph a of this subdivision, the commissioner, in consultation with the state occupational safety and health hazard abatement board, shall promulgate rules and regulations recommended to him by such board which establish standards whenever such board finds (i) that no federal standard exists for the particular condition being addressed and that such a standard is necessary for the protection of the public employees at risk, or (ii) a federal standard exists, but conditions in public workplaces in this state require a different standard, and such state standard will be at least as effective in providing safe and healthful places of employment as the federal standard.
c. Except for an employer located in a city with a population of over one million, any employer who employs a firefighter shall provide safety ropes and system components for use by such firefighter. The commissioner shall by rule adopt the codes, standards and recommended practices promulgated by the most recent edition of National Fire Protection Association 1983, Standard on Fire Service Life Safety Rope and System Components, and as are appropriate to the nature of the risk to which the firefighter shall be exposed. Such safety ropes and system components shall be adequate to protect the health and safety of the firefighter. The employer shall ensure that the firefighter is instructed in the proper use of the safety ropes and system components.
In order to ensure the adequacy of the safety ropes and system components, the employer must routinely inspect and ensure that:
(1) Existing safety ropes and system components meet the codes, standards and recommended practices adopted by the commissioner.
(2) Existing safety ropes and system components still perform their function and to identify any of their limitations such as but not limited to:
(i) Checking the labels or stamps on the equipment; and
(ii) Checking any documentation or equipment specifications; and
(iii) Contacting the supplier or the approval agency;
(3) Firefighters are informed of the limitations of any safety ropes and system components;
(4) Firefighters are not allowed or required to use any safety ropes or system components beyond their limitations;
(5) Existing and new safety ropes and system components have no visible defects that limit their safe use;
(6) Safety ropes and system components are used, cleaned, maintained and stored according to manufacturer's instructions;
(7) The firefighter is instructed in identifying to the employer any defects that the firefighter may find in safety ropes and system components; and
(8) Any identified defects are corrected or immediate action is taken by the employer to eliminate the use of this equipment.
d. Any person who may be adversely affected by a standard issued under this section may, within thirty days after the effective date of such standard, commence a proceeding for judicial review pursuant to article seventy-eight of the civil practice law and rules.
5. Inspections.
a. Any employee or representative of employees who believes that a violation of a safety or health standard exists, or that an imminent danger exists, may request an inspection by giving notice to the commissioner of such violation or danger. Such notice and request shall be in writing, shall set forth with reasonable particularity the grounds for the notice, shall be signed by such employee or representative of employees, and a copy shall be provided by the commissioner to the employer or the person in charge no later than the time of inspection, except that on the request of the person giving such notice, his name and the names of individual employees or representatives of employees shall be withheld. Such inspections shall be made forthwith.
b. A representative of the employer and an authorized employee representative shall be given the opportunity to accompany the commissioner during an inspection for the purpose of aiding such inspection. Where there is no authorized employee representative, the commissioner shall consult with a reasonable number of employees concerning matters of safety and health in the workplace.
c. The authority of the commissioner to inspect a premises pursuant to such an employee complaint shall not be limited to the alleged violation contained in such complaint. The commissioner may inspect any other area of the premises in which he has reason to believe that a violation of this section exists.
d. No employee who accompanies the commissioner on an inspection shall suffer any reduction in wages.
e. The commissioner may, upon his own initiative, conduct an inspection of any premises occupied by a public employer if he has reason to believe that a violation of this section has occurred or if he has a general administrative plan for the enforcement of this section, including general schedule inspections, which provide a rational administrative basis for such inspecting. Within ninety days of enactment of this paragraph the commissioner shall publish the general administrative plan and shall adopt regulations on the conduct of inspections in locker rooms and other areas involving the personal property and privacy rights of public employees.
f. Any information obtained by the commissioner under this section shall be obtained with a minimum burden upon the employers.
5-a. Notwithstanding any other provisions of law, when a request for an inspection has been made in a situation where there is an allegation of an imminent danger such that an employee would be subjecting himself or herself to serious injury or death because of the hazardous condition in the workplace, the inspection shall be given the highest priority by the department and shall be carried out immediately.
6. Enforcement procedures.
a. If the commissioner determines that an employer has violated a provision of this section, or a safety or health standard or regulation promulgated under this section, he or she shall with reasonable promptness issue to the employer an order to comply which shall describe particularly the nature of the violation including a reference to the provision of this section, standard, regulation or order alleged to have been violated, shall fix a reasonable time for compliance and may establish the penalty to be assessed for failure to correct the violation by the time fixed for compliance. An employer who fails to correct a non-serious violation by the time fixed for compliance may be assessed a civil penalty of up to fifty dollars per day until the violation is corrected. An employer who fails to correct a serious violation by the time fixed for compliance may be assessed a civil penalty of up to two hundred dollars per day until the violation is corrected. Pursuant to section 18(k) of the United States Occupational Safety and Health Act of 1970 (Public Law, 91-596), a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation. A non-serious violation shall be defined as any violation that does not fall under the definition of serious violation. The commissioner shall not assess a penalty against an employer for failure to correct a violation of a standard which is the subject of an application for a temporary order granting a variance or a violation which is the subject of a petition to modify an order to comply, provided however, that upon issuance by the commissioner of a determination denying such variance or petition to modify, or upon expiration of a temporary variance or modified compliance period, the time fixed for compliance shall recommence and the employer become liable for the penalties provided herein.
b. Where the commissioner issues to an employer an order to comply, the employer shall post such order or a copy thereof in a conspicuous place at or near each place of violation cited in the order, where it is clearly visible to affected employees. The commissioner shall make such order available to employee representatives.
c. Any employer, or other party affected by a determination of the industrial commissioner issued pursuant to this section may petition the industrial board of appeals for review of such determination in accordance with section one hundred one of this chapter. Judicial review of the decision of the industrial board of appeals may be obtained by any party affected by such decision by commencing a proceeding pursuant to article seventy-eight of the civil practice law and rules within sixty days after such decision is issued.
d. If the time for compliance with an order of the commissioner issued pursuant to this section has elapsed, and the employer has not complied with the provisions of the order, the commissioner shall seek judicial enforcement of such order by commencing a proceeding pursuant to article seventy-eight of the civil practice law and rules. Where an employer has complied with an order in all respects other than the payment of a penalty imposed pursuant to this subdivision, the commissioner may file with the county clerk of the county where the employer has its place of business the order of the commissioner continuing the amount of civil penalty found to be due. The filing of such order shall have the full force and effect of a judgment duly docketed in the office of such clerk. The order or decision may be enforced by and in the same manner, and with like effect, as that prescribed by the civil practice law and rules for the enforcement of a money judgment.
7. Injunction proceedings.
a. The supreme court of the state shall have jurisdiction, upon petition of the industrial commissioner, pursuant to the civil practice law and rules to restrain any conditions or practices in any place of public employment which are such that a danger exists which could reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the abatement procedures otherwise provided for by this section. Such proceeding shall be brought in the county in which the violation is alleged to exist. Any order issued under this section may require such steps to be taken as may be necessary to avoid, correct or remove such imminent danger and prohibit the employment or presence of any individual in locations or under conditions where such imminent danger exists, except individuals whose presence is necessary to avoid, correct, or remove such imminent danger or to maintain the capacity of a continuous process operation to resume normal operations without a complete cessation of operations, or where a cessation of operations is necessary, to permit such to be accomplished in a safe and orderly manner. The employer may contest such order pursuant to the civil practice law and rules.
b. Whenever and as soon as an inspector concludes that conditions or practices described in paragraph a of this subdivision exist in any place of public employment, he shall inform the affected employees and employers of the danger and that he is recommending to the industrial commissioner that relief be sought.
c. If the industrial commissioner fails to seek relief under this section within forty-eight hours of being notified of such condition, any employee who may be injured by reason of such failure, or the authorized employee representative of such employees, may seek injunctive relief as provided in paragraph a of this subdivision.
8. Variances.
a. Any employer may apply to the commissioner for a temporary order granting a variance from a standard or any provision thereof promulgated under this section. Such temporary order shall be granted only if the employer files an application which meets the requirements of paragraph b of this subdivision and establishes that
(1) he is unable to comply with a standard by its effective date because of unavailability of professional or technical personnel or of materials and equipment needed to come into compliance with the standard or because necessary construction or alteration of facilities cannot be completed by the effective date,
(2) he is taking all available steps to safeguard employees against the hazards covered by the standard, and
(3) he has an effective program for coming into compliance with the standard as quickly as practicable. Any temporary order issued under this subdivision shall prescribe the practices, means, methods, operations and processes which the employer must adopt and use while the order is in effect and state in detail his program for coming into compliance with the standard. Such a temporary order may be granted only after notice to employees and an opportunity for a hearing, provided the commissioner may issue one interim order to be effective until a decision is made on the basis of the hearing. No temporary order may be in effect for longer than the period needed by the employer to achieve compliance with the standard or one year, whichever is shorter, except that such an order may be renewed not more than twice so long as the requirements of this subdivision are met and if an application for renewal is filed at least ninety days prior to the expiration date of the order. No interim renewal of an order may remain in effect longer than one hundred and eighty days.
b. An application for a temporary variance order shall contain:
(1) a specification of the standard or portion thereof from which the employer or owner seeks a variance;
(2) a representation by the employer, supported by representations from qualified persons who have firsthand knowledge of the facts represented, that he is unable to comply with the standard or portion thereof and a detailed statement of the reasons therefor;
(3) a statement of the steps he has taken and will take, with specific dates, to protect employees against the hazard covered by the standard;
(4) a statement of when he expects to be able to comply with the standard and what steps he has taken and what steps he will take, with dates specified, to come into compliance with the standard; and
(5) a certification that he has informed his employees of the application by giving a copy thereof to their authorized representative, posting a statement giving a summary of the application and specifying where a copy may be examined at the place or places where notices to employees are normally posted, and by other appropriate means. A description of how employees have been informed shall be contained in the certification. The information to employees shall also inform them of their right to petition the commissioner for a hearing. The commissioner is also authorized to grant a variance from any standard or portion thereof whenever he determines that such variance is necessary to permit an employer to participate in an experiment approved by him designed to demonstrate or validate new and improved techniques to safeguard the health or safety of workers.
c. Any affected employer may apply to the commissioner for a rule or order for a variance from a standard promulgated under this section. Affected employees shall be given notice of each such application and an opportunity to participate in a hearing. The commissioner shall issue such rule or order if he determines on the record, after opportunity for an inspection where appropriate and a hearing, that the proponent of the variance has demonstrated by a preponderance of the evidence that the conditions, practices, means, methods, operations or processes used or proposed to be used by an employer will provide employment and places of employment which are as safe and healthful as those which would prevail if he complied with the standard. The rule or order so issued shall prescribe the conditions the employer must maintain, and the practices, means, methods, operations and processes which he must adopt and utilize to the extent they differ from the standard in question. Such a rule or order may be modified or revoked upon application by an employer, any employee or employee representative, or by the commissioner on his own motion, in the manner prescribed for its issuance under this subdivision at any time after six months from its issuance.
d. Any person, who may be adversely affected by a rule or order issued under this subdivision may challenge the validity or applicability of such rule or order by commencing, within sixty days, a proceeding pursuant to article seventy-eight of the civil practice law and rules.
9.Recordkeeping.
a. In accordance with the commissioner's regulations, each employer shall make, keep and preserve, and make available to the commissioner such records regarding his activities relating to this section as the commissioner deems necessary or appropriate for developing information regarding the causes and prevention of occupational accidents and illness. Such regulations may include provisions requiring employers to conduct periodic inspections. The commissioner shall also issue regulations requiring that employers, through posting of notices, training or other appropriate means, keep their employees informed of their protections.
b. The commissioner shall prescribe regulations requiring employers to maintain accurate records and to make public periodic reports of work-related deaths, and injuries and illnesses other than minor injuries requiring only first aid treatment and which do not involve lost time from work, medical treatment, loss of consciousness, restriction of work or motion or transfer to another job.
c. The commissioner shall issue regulations requiring employers to maintain accurate records of employee exposures to potentially toxic materials or harmful physical agents which the regulation requires to be monitored or measured. Such regulations shall provide employees or their representatives with an opportunity to observe such monitoring or measuring and have access to the records thereof. Such regulations shall also make appropriate provisions for each employee or former employee to have access to such records as will indicate his own exposure to toxic materials or harmful physical agents. Each employer shall promptly notify any employee who has been or is being exposed to toxic materials or harmful physical agents in concentrations or at levels which exceed those prescribed by any safety and health standard promulgated under this section, and shall inform any employee who is being exposed of the corrective action being taken and the time limit for correction.
10. Discrimination against employees.
a. No person shall discharge, or otherwise discipline, or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this section or has testified or is about to testify in any such proceeding, or because of the exercise by such employee on behalf of himself or others of any right afforded by this section.
b. Any employee who believes that he has been discharged, disciplined, or otherwise discriminated against by any person in violation of this subdivision may, within thirty days after such violation occurs, file a complaint with the commissioner alleging such discrimination. Upon receipt of such complaint, the commissioner shall cause such investigation to be made as he deems appropriate, and shall, if requested withhold the name of the complainant from the employer. If upon such investigation, the commissioner determines that the provisions of this subdivision have been violated, he shall request the attorney general to bring an action in the supreme court against the person or persons alleged to have violated the provisions of this subdivision. In any such action the supreme court shall have jurisdiction, for cause shown, to restrain violations of this subdivision and order all appropriate relief, including rehiring or reinstatement of the employee to his former position with all back pay.
c. Within ninety days of this receipt of a complaint filed under this subdivision the commissioner shall notify the complainant and his representative by registered mail of his determination.
d. Nothing in this subdivision shall be deemed to diminish the rights of any employee under any law, rule or regulation or under any collective bargaining agreement.
11. Wherever notice is required to be given to an authorized employee representative under this section, notice shall be given to all organizations representing employees at the worksite in question. Notice should be given to the office of the employee representative as well as to the representative at the worksite. Representatives who wish this dual notice must inform the department of the person who is to be notified. Such notice shall be in writing unless the inspection is being conducted under subdivision five-a of this section.
12. The commissioner may initiate voluntary compliance programs, including, but not limited to, a public employee consultation program to provide on-site consultation to public employers desiring such services as an adjunct to the commissioner's inspections pursuant to this section. Whenever an on-site consultation is performed under this subdivision, a report shall be issued of any findings of noncompliance with the regulations promulgated under this section and the report shall be made public.
13. Regulations. The commissioner may promulgate such procedural regulations as he shall consider necessary and proper to effectuate the purposes and provisions of this section.
14. A commission to report on the operation and effect of this section is hereby established.
a. Such commission shall examine the incidence of work related injuries, the incidence of injuries to the public, and the effect of this section upon insurance costs of public employers. Such commission shall be empowered to recommend additional or corrective legislation to advance the purposes of this section.
b. Such commission shall be composed of three members, one of whom shall be chosen by the speaker of the assembly, one of whom shall be chosen by the temporary president of the senate, and one of whom shall be chosen by the governor.
c. Members of the commission shall serve without compensation, except for expenses reasonably incurred in the discharge of their duties under this subdivision.
d. The commission shall issue an interim report to the legislature and the governor, which report shall be issued one year after the effective date of this section. A final report shall be issued two years after such effective date.
15. New York state occupational safety and health hazard abatement board; creation and procedure.
a. The New York state occupational safety and health hazard abatement board is hereby created to have and exercise the powers, duties and prerogatives provided by the provisions of this subdivision.
b. The membership of the board shall consist of five persons appointed by the governor of whom one shall be upon the recommendation of the temporary president of the senate, one upon the recommendation of the speaker of the assembly, and one upon the recommendation of the state comptroller. Members shall serve at the pleasure of the governor, and the governor may replace any member in accordance with the provisions contained herein for the appointment of members.
The governor shall designate one of the members to serve as chairman. The board shall act by a majority vote of its members, and a quorum to conduct business shall consist of three members. Any determination of the board shall be evidenced by a certification thereof executed by all the members present and voting. Each member of the board shall be entitled to designate a representative to attend meetings of the board in his place, and to vote or otherwise act on his behalf in his absence. Such representative shall not be authorized to delegate any of his duties or functions to any other person. Notice of such designation shall be furnished in writing to the board by the designating member. A representative shall serve at the pleasure of the designating member during the member's term of office.
c. No elected public officer or public employee shall be eligible for appointment as a member of the board.
d. The members of the board and their representatives shall serve without salary or per diem allowance but shall be entitled to reimbursement for actual and necessary expenses incurred in the performance of their official duties pursuant to this section, provided however that such members and representatives are not, at the time such expenses are incurred, public employees or public officers otherwise entitled to such reimbursement.
e. The board shall meet at least four times a year with at least one meeting in each calendar quarter. The chairman shall designate the days of meeting, and shall provide each member with at least three weeks written notice of the date of such meeting.
f. Staff services for the board shall be performed insofar as practicable, by personnel of the department of labor. Additional professional and technical services may be secured from other state departments or agencies, with the consent of the head of such department or agency.
16. New York state occupational safety and health hazard abatement board; powers and duties.
(A)a. The board created pursuant to subdivision fifteen of this section shall have the power, and it shall be its duty to receive, review and act upon applications for funding of capital projects designed to abate occupational safety and health hazards which have been found by the commissioner to violate the provisions of this section or which have been identified in a report of the public employee consultation program. The board shall fund seventy-five percent of the cost of any capital abatement project necessary to comply with an order issued by the commissioner pursuant to the provisions of this section or with a recommendation for hazard abatement issued by the public employee consultation program.
b. In determining the order in which applicants shall receive grants from the fund, and the amount of such funding, the board shall consider the following factors:
(1) the degree of possible physical harm which the hazard to be abated could inflict on the public employees and other citizens at risk;
(2) the imminent nature of the possible infliction of harm;
(3) the number of public employees and other citizens at risk;
(B) a. The board shall have the power, and it shall be its duty to receive, review, and act upon applications for funding for programs designed to provide occupational safety and health training and education for employees pursuant to the provisions of article twenty-nine of this chapter.
b. The board shall, by the promulgation of rules and regulations, establish procedures and criteria that are necessary and appropriate to carry out the provisions of article twenty-nine of this chapter, which shall include criteria for the evaluation and selection of applications for grants and the auditing of performance thereunder.
(C) a. The board may require as part of such applications made pursuant to the provisions of this subdivision such information as it deems necessary and shall act upon such applications within a reasonable time. The board shall furnish the state budget director, state industrial commissioner, state comptroller, temporary president of the senate and speaker of the assembly with a copy of each application within three days following receipt thereof by the board.
b. That a employer has applied for funds pursuant to the provisions of this subdivision shall not relieve that employer of the obligation to correct any violation of this section by variance or other means.
(D) a. The board, in the formulation of standards pursuant to paragraph b of subdivision four of this section, shall have the power to conduct public hearings, administer oaths and take sworn or unsworn testimony at such hearings. The board may, by subpoena issued by the chair, compel the attendance of witnesses and the production of all books, records and other evidence relative to any matter under inquiry in the formulation of such standards.
b. The board may contract with occupational health professionals and industrial safety engineers to provide expert assistance in the formulation of standards pursuant to paragraph b of subdivision four of this section.
c. The board is authorized, after public hearings, to recommend standards to the commissioner. The board, in addition to acting on its own initiative, shall review, consider and make recommendations regarding requests for new standards presented to such board by public employers, employees or authorized employee representatives.
Section 27-b. Duty of public employers to develop and implement programs to prevent workplace violence.
1. Purpose. The purpose of this section is to ensure that the risk of workplace assaults and homicides is evaluated by affected public employers and their employees and that such employers design and implement workplace violence protection programs to prevent and minimize the hazard of workplace violence to public employees.
2. Definitions. For the purposes of this section:
a. "Employer" means: (1) the state; (2) a political subdivision of the state, provided, however that this subdivision shall not mean any employer as defined in section twenty-eight hundred one-a of the education law; and (3) a public authority, a public benefit corporation, or any other governmental agency or instrumentality thereof.
b. "Employee" means a public employee working for an employer.
c. "Workplace" means any location away from an employee's domicile, permanent or temporary, where an employee performs any work-related duty in the course of his or her employment by an employer.
d. "Supervisor" means any person within an employer's organization who has the authority to direct and control the work performance of an employee, or who has the authority to take corrective action regarding the violation of a law, rule or regulation to which an employee submits written notice.
e. "Retaliatory action" means the discharge, suspension, demotion, penalization, or discrimination against any employee, or other adverse employment action taken against an employee in the terms and conditions of employment.
3. Risk evaluation and determination. Every employer shall evaluate its workplace or workplaces to determine the presence of factors or situations in such workplace or workplaces that might place employees at risk of occupational assaults and homicides. Examples of such factors shall include, but not limited to:
a. working in public settings (e.g., social services or other governmental workers, police officers, firefighters, teachers, public transportation drivers, health care workers, and service workers);
b. working late night or early morning hours;
c. exchanging money with the public;
d. working alone or in small numbers;
e. uncontrolled access to the workplace; and
f. areas of previous security problems.
4. Written workplace violence prevention program. Every employer with at least twenty full time permanent employees shall develop and implement a written workplace violence prevention program for its workplace or workplaces that includes the following:
a. a list of the risk factors identified in subdivision three of this section that are present in such workplace or workplaces;
b. the methods the employer will use to prevent incidents of occupational assaults and homicides at such workplace or workplaces, including but not limited to the following:
(1) making high-risk areas more visible to more people;
(2) installing good external lighting;
(3) using drop safes or other methods to minimize cash on hand;
(4) posting signs stating that limited cash is on hand;
(5) providing training in conflict resolution and nonviolent self-defense responses; and
(6) establishing and implementing reporting systems for incidents of aggressive behavior.
5. Employee information and training.
a. Every employer with at least twenty permanent full time employees shall make the written workplace violence prevention program available, upon request, to its employees, their designated representatives and the department.
b. Every employer shall provide its employees with the following information and training on the risks of occupational assaults and homicides in their workplace or workplaces at the time of their initial assignment and annually thereafter:
(1) employees shall be informed of the requirements of this section, the risk factors in their workplace or workplaces, and the location and availability of the written workplace violence prevention program required by this section; and
(2) employee training shall include at least: (a) the measures employees can take to protect themselves from such risks, including specific procedures the employer has implemented to protect employees, such as appropriate work practices, emergency procedures, use of security alarms and other devices, and (b) the details of the written workplace violence prevention program developed by the employer.
6. Application.
a. Any employee or representative of employees who believes that a serious violation of a workplace violence protection program exists or that an imminent danger exists shall bring such matter to the attention of a supervisor in the form of a written notice and shall afford the employer a reasonable opportunity to correct such activity, policy or practice. This referral shall not apply where imminent danger or threat exists to the safety of a specific employee or to the general health of a specific patient and the employee reasonably believes in good faith that reporting to a supervisor would not result in corrective action.
b. If following a referral of such matter to the employee's supervisor's attention and after a reasonable opportunity to correct such activity, policy or practice the matter has not been resolved and the employee or representative of employees still believes that a violation of a workplace violence prevention program remains, or that an imminent danger exists, such employee or representative of employees may request an inspection by giving notice to the commissioner of such violation or danger. Such notice and request shall be in writing, shall set forth with reasonable particularity the grounds for the notice, shall be signed by such employee or representative of employees, and a copy shall be provided by the commissioner to the employer or the person in charge no later than the time of inspection, except that on the request of the person giving such notice, such person's name and the names of individual employees or representatives of employees shall be withheld. Such inspection shall be made forthwith.
c. A representative of the employer and an authorized employee representative shall be given the opportunity to accompany the commissioner during an inspection for the purpose of aiding such inspection. Where there is no authorized employee representative, the commissioner shall consult with a reasonable number of employees concerning matters of safety in the workplace.
d. The authority of the commissioner to inspect a premises pursuant to such an employee complaint shall not be limited to the alleged violation contained in such complaint. The commissioner may inspect any other area of the premises in which he or she has reason to believe that a serious violation of this section exists.
e. No employer shall take retaliatory action against any employee because the employee does any of the following:
(1) makes an application pursuant to paragraph a of this subdivision;
(2) requests an inspection as authorized in paragraph b of this subdivision;
(3) accompanies the commissioner as authorized in paragraph c of this subdivision;
f. The commissioner may, upon his or her own initiative, conduct an inspection of any premises occupied by an employer if he or she has reason to believe that a violation of this section has occurred or if he or she has a general administrative plan for the enforcement of this section, including a general schedule of inspections, which provide a rational administrative basis for such inspecting. Within one hundred twenty days of the effective date of this paragraph the commissioner shall adopt rules and regulations implementing the provisions of this section.
g. Any information obtained by the commissioner pursuant to this subdivision shall be obtained with a minimum burden upon the employers.
h. When a request for an inspection has been made in a situation where there is an allegation of an imminent danger such that an employee would be subjecting himself or herself to serious injury or death because of the hazardous condition in the workplace, the inspection shall be given the highest priority by the department and shall be carried out immediately.
Section 29. Procedure for issuing safety and health rules.
Before any rule is adopted, amended or repealed there shall be a public hearing thereon, notice of which shall be published at least once, not less than ten days prior thereto, in such newspaper or newspapers as the commissioner may prescribe.
The commissioner may appoint committees composed of employers, employees and experts to suggest rules or changes therein. Every rule adopted and every amendment or repeal thereof shall be promptly published in such newspaper or newspapers as the commissioner may prescribe. The rules and all amendments and repeals thereof shall, unless otherwise prescribed by the commissioner, take effect twenty days after the first publication thereof and certified copies thereof shall be filed in the office of the department of state.
Section 30. Variations.
1. If there shall be practical difficulties or unnecessary hardship in carrying out the provisions of this chapter relating to safety or health standards, or an order requiring compliance with such provisions of this chapter, or in carrying out an order of the commissioner requiring compliance with the state building construction code, the commissioner may make a variation from such requirements or order if the spirit of the provision, rule or code shall be observed and public safety secured. Applications for permanent variations shall be accompanied by a non-refundable fee of three hundred fifty dollars payable to the commissioner.
2. Any person affected by such provision, rule, code, or order, or his agent, may petition the commissioner, in accordance with such rules as he shall prescribe, for such variation stating the grounds therefor. If a petition relates to an order requiring compliance with the state building construction code, the commissioner shall give prompt notice of the filing of such petition to the state building code council. If, in the opinion of the council, it is necessary or desirable that it intervene in any proceeding in connection therewith, it shall be permitted to do so as a matter of right. The commissioner shall fix a day for a hearing on such petition and give notice thereof to the petitioner and to such other persons as he may determine. If the commissioner shall permit a variation he may impose such conditions as he may deem necessary or advisable to assure public safety. The variation shall apply to the petitioner and shall recite the conditions under which the variation shall be permitted.
3. Except for variations concerning provisions, rules, codes, orders or any other matter affecting asbestos projects or safety and health standards for public employees, including but not limited to projects covered by article thirty and section twenty-seven-a and subdivision ten of section two hundred forty-one of this chapter;
a. any person who petitions the commissioner for a variation as provided by this section shall:
(1) post a copy of the petition at the site to be affected by the variation in a location that is reasonably accessible to the public and the employees at the site;
(2) provide a listing, in the petition, of the designated representatives (if any) of all employee organizations recognized or certified pursuant to the national labor relations act (29 U.S.C. sections 151 et. seq.), article fourteen of the civil service law or article twenty of this chapter to represent employees at the site affected by the variation; such listing shall provide the names and addresses of all such representatives;
(3) mail by certified mail, return receipt requested, a copy of the petition to the designated representatives listed as required by subparagraph two of this paragraph within three days of sending the petition to the commissioner; and
(4) affirm in the petition that the petition has been posted as required by subparagraph one of this paragraph or that it will be posted within one week of sending the petition to the commissioner and that the petitioner has mailed by certified mail, return receipt requested, a copy of the petition to all designated representatives, as required by subparagraph three of this paragraph.
b. The commissioner shall send a copy of his or her determination on the petition to the petitioner and any designated representatives listed on the petition pursuant to subparagraph two of paragraph a of this subdivision.
4. Whenever a petition is filed for a variation, except for a variation relating to an order requiring compliance with the state building construction code, or upon the commissioner's own motion, the commissioner may make a general variation which shall apply to all buildings, installations, or conditions where the facts are substantially the same as those set forth in the resolution, by whomever the same may be owned, possessed or controlled and wherever the same may be or will thereafter be found within the state of New York with the same force and effect as if a variation were duly granted upon separate petition and for the use and benefit of every person affected by the statutory provision or code rule from which the said general variation was made.
5. Any variation may be amended or terminated by the commissioner for any of the following reasons:
a. The variation or any of its conditions was or is not wholly complied with;
b. The variation does not continue to secure public safety;
c. The difficulties or hardship prevailing at the time of the making of the variation have ceased to exist;
d. The labor law provision or rule from which the variation was made has been amended, or a new rule governing the subject has been adopted; or
e. A finding by the commissioner that other substantial grounds exist warranting the amendment or termination of the variation.
6. The commissioner may publish such variations as he may deem necessary. A properly indexed record of all variations shall be kept in the office of the department and open to public inspection.
7. Notwithstanding any other law, rule or regulation to the contrary, as of the effective date of sections two hundred ninety-one through two hundred ninety-four of chapter one hundred ninety of the laws of nineteen hundred ninety, the fee requirements set forth in this section and article thirty of this chapter shall continue to apply to all public and private entities, including, but not limited to, the state, any subdivision of the state, any government agency or instrumentality thereof, including any entity created by one or more states or subdivisions thereof, any public authority, any public or private corporation, any person, company, unincorporated association, firm, or partnership and any owner or operator thereof.
Section 31. Duty to furnish information and facilitate inspections.
The owner, operator, manager or lessee of any place affected by the provisions of this chapter or his agent, superintendent, subordinate or employee, and any person employing or directing any labor affected by such provision shall, when requested by the commissioner or board, furnish any information in his possession or under his control which the commissioner or board is authorized to require; shall answer truthfully all questions authorized to be put to him; shall admit the commissioner, a deputy commissioner, or other officer or employee of the department, to any place which is affected by the provisions of this chapter for the purpose of making inspection or enforcing the provisions thereof, and shall render assistance necessary for a proper inspection.
Section 32. Interference with officer or employee of department prohibited.
No person shall interfere with, obstruct or otherwise hinder any officer or employee of the department in the performance of his duties.
Section 33. Service of notice.
Whenever the commissioner or board or any person affected by the provisions of this chapter is required to give notice in writing to any person, such notice may be given by mailing it in a letter addressed to such person at his last known place of business or by delivering it to him personally. Notice to a partnership may be given to any of the partners and notice to a corporation may be given to any officer or agent thereof upon whom a summons may be served as provided by the civil practice law and rules. Whenever an order or demand of the department is required to be served it shall be served in the manner hereinbefore provided for the service of a notice or by delivering it to any person of suitable age and discretion in charge of the premises affected by such order, or if no person is found in charge by affixing a copy thereof conspicuously upon the premises.
Section 34. Department to keep record and publish bulletin of licenses.
The department shall keep records of all licenses, permits or certificates issued, revoked or amended by it and publish lists thereof at such times and in such forms as it may determine.
Section 35. Maintenance of records.
1. The department is authorized and empowered to use optical disc technology to record and maintain public records, papers, documents or matters required by law to be recorded. Such records shall be capable of being copied, photographed, or microphotographed by a process which accurately reproduces the original thereof in all details.
2. The copies thereof shall be deemed to be an original record for all purposes, including introduction in evidence in all courts or administrative agencies. A transcript, exemplification or certified copy thereof shall, for all purposes recited herein, be deemed to be a transcript, exemplification, or certified copy of the original.
3. The department shall have the power to dispose of or destroy its records, subject only to receiving the consent of the commissioner of education as may be required by article fifty-seven of the arts and cultural affairs law.
Section 36. Destruction of old records.
All statistics and other documentary matter filed with the department may be destroyed by the commissioner after the expiration of six years from the filing thereof.
Section 37. Department's process to be in its name.
All notices or orders shall be given by and in the name of the department by the commissioner, by the industrial board of appeals or a member thereof, or by the deputy commissioner or other officer or employee thereunto duly authorized.
Section 38. Oaths and affidavits.
The commissioner, a member of the unemployment insurance appeal board, the deputy commissioner, a referee and any other officer or employee of the department if duly authorized by the commissioner, may administer oaths and take affidavits in matters relating to the provisions of this chapter.
Section 39. Hearings and subpoenas.
The commissioner, the members of the unemployment insurance appeal board, the deputy commissioner, referees and any other officer of the department designated by the commissioner, shall have power:
1. To issue subpoenas for and compel the attendance of witnesses and the production of books, contracts, papers, documents and other evidence;
2. To hear testimony and take or cause to be taken depositions of witnesses residing within or without this state in the manner prescribed by law for like depositions in civil actions in the supreme court. Subpoenas and commissions to take testimony shall be issued under the seal of the department.
Section 40. Proceedings before officers or employees.
1. Any investigation, inquiry or hearing which the commissioner has power to undertake or to hold may by authorization be undertaken or held by or before any officer or competent employee of the department.
Section 41. Rules governing hearings.
The commissioner shall not be bound by technical rules of evidence and shall conduct all hearings according to procedure prescribed by him.
Section 42. Youth education, employment and training program.
This program shall provide services to economically disadvantaged in-school and out-of-school youth fourteen to twenty-one years of age and shall be subject to the following provisions of this section:
1. The goals of this program shall be entry into post-secondary education, enrollment in vocational or skills training programs, or the attainment of favorable employment and career opportunities. To obtain program goals, local projects shall include one or more of the following objectives: retention in high school, improvement in basic academic and vocational skills and, when attainable, the acquisition of a high school diploma or its equivalent.
2. For the purpose of this section, the following terms shall have the following meanings: "local project" shall mean the specific plan or proposal for support and/or direct client services at the local level as specified in a contractual agreement with employment and training providers pursuant to this section; and "economically disadvantaged" shall be defined as set forth in regulations promulgated by the state education department pursuant to sections sixty-four hundred fifty-one and sixty-four hundred fifty-two of the education law or as set forth in the federal job training partnership act, public law 97-300 or its successor program or in the absence of such, as defined by the commissioner. Moneys to fund the program may be used for projects in which up to ten percent of the participants enrolled, on a project by project basis, are youth who are not economically disadvantaged if such youth have been identified as at risk of dropping out of school or have barriers to employment.
3. Subject to the limits of available moneys for this program and the approval of the director of the budget, the commissioner, in consultation with the commissioner of education, shall select and make contracts with preference to employment and training providers who have demonstrated effectiveness in serving disadvantaged youth for the purpose of conducting local projects. Such moneys may be used for contractors selected on a competitive basis consistent with executive order number one hundred twenty-seven which expedites and simplifies contracting with not-for-profit agencies. Such employment and training providers shall only include not-for-profit community based organizations, boards of cooperative educational services, post-secondary educational agencies, grant recipients or administrative entities of the service delivery areas (hereinafter referred to as SDAs), as may be defined by the Federal Job Training Partnership Act (hereinafter referred to as JTPA) or its successor program or in the absence of such, as defined by the commissioner, joint apprentice committees, labor organizations, and public and private employers. Preference in selection of such contractors shall be given to qualified and experienced community based organizations with proven ability to administer such programs.
4. Moneys for this program shall be apportioned in a manner that ensures a distribution of funds to projects operating in communities which have high rates of youth unemployment, significant drop-out rates among high school-aged youth, large numbers of youth living in poverty, and a high proportion of households receiving public assistance benefits.
5. Such moneys may not be used for an SDA as an employment and training provider for local projects for out-of-school youth unless it has been determined by the commissioner that no other employment and training provider is available in the area which this program is designed to serve.
6. Notwithstanding any other provisions of law to the contrary, the educational opportunity centers (hereinafter referred to as EOCs) operated by the state university and educational centers operated by the units of the city university of New York are hereby authorized to contract with employment and training providers funded pursuant to this section for provision of services authorized under this section and to receive reimbursement for services provided. For the purpose of this program, all participants eligible for services pursuant to this section shall be deemed to be eligible for services provided by the EOCs.
7. Allowable activities under this section may include tutoring, basic skills remediation, occupational/vocational training, vocational exploration, on-the-job and supervised worksite training, counseling, and support services. Local projects shall integrate such allowable activities, as fully as possible.
8. Participants in programs under this section may be granted a stipend if such youth are not participating in a paid work experience. On an individual participant basis, the local project operator may extend tutorial services, basic skills remediation, and counseling beyond one program year, provided the participant continues to meet the other eligibility requirements of this program.
9. Pursuant to a memorandum of agreement, the education department shall be responsible for the approval of the educational component of local projects under this section predicated upon a review of each local project proposal. Such educational component shall include programs of instruction, remedial activities, and services designed to improve participants' performance in reading, writing, communication, math, and science. Academic credit may be made available to qualifying participants for their involvement and performance in this program. Local projects shall be evaluated for credit and recommendations shall be made to local schools by the education department.
10. As a condition of participating in programs under this section, each employment and training provider shall establish cooperative relationships for improving linkages with local educational agencies and SDAs which insure that school-based educational activities are integrated with the educational component of the local project as fully as possible.
11. Up to ten percent of the program funds allocated to local projects for direct client services may be expended for support services, provided that such support services are not available from other federal, state, local, or private resources. Such support services shall include day care which meets state standards, transportation, meal allowances, and clothing allowances.
12. No moneys shall be allocated to the department for support and/or direct client services unless the following conditions have been met: a memorandum of agreement has been signed with the education department pursuant to this section; and, regulations governing the selection and implementation of local projects have been issued. Further, no liabilities shall be assumed or moneys expended for support and/or direct client services unless such funding is specified in a contractual agreement with employment and training providers and the educational component of such contract has been approved by the education department.
13. Of the total funds made available for the payment of local projects for in-school youth and out-of-school youth, no more than one million three hundred forty-nine thousand dollars shall be allocated for local projects administered by service delivery areas. Provided further that as a condition of funding under such appropriation, a fifty percent match for the amount made available for local projects for in-school youth shall be required from employment and training providers out of in-kind services or moneys received through other local, private, or federal resources; except that a match of those funds designated for payment of participant wages and fringe benefits shall not be required. However, fifty percent of the payment of wages and fringe benefits to participants in approved vocational exploration or trial work experience in local projects for in-school youth administered by SDAs and funded under such appropriations shall be subsidized by the SDA out of moneys received through JTPA or its successor program, except that no JTPA or successor program subsidization of trial work experience shall be required if the SDA shall have otherwise obligated all moneys received through JTPA or its successor program, in which case the SDA may meet its obligation to subsidize from moneys received from any available source other than such appropriation. Further, no more than twenty-five percent of the payment of wages and fringe benefits to participants in on-the-job training in local projects for in-school youth administered by SDAs shall be paid from funds made available pursuant to such appropriation and any such funds so used shall be matched by the SDA out of moneys received through JTPA or its successor program, unless the SDA shall have otherwise obligated all moneys received through JTPA or its successor program.
14. As a condition of receipt of moneys for payments for local projects for in-school youth and out-of-school youth local projects for out-of-school youth shall give preference to youth who are homeless and to adolescent parents, provided such youth meet other eligibility requirements of this program. Employment and training providers under this appropriation shall not be required to match moneys made available for local projects for out-of-school youth.
15. Notwithstanding any other law, rule or regulation to the contrary, the department shall prepare and submit to the governor, the temporary president of the senate, the speaker of the assembly and the chair of the legislative commission on skills development and vocational education, an annual evaluation report of this program no later than October thirty-first following the end of the program year. The report shall include a statement of program objectives which identifies outcomes and indicators of the effectiveness of the program. It shall represent the extent to which program activities meet program objectives including, but not limited to, improvements in participants' educational competencies and employability skills as measured by accepted testing tools. The basic measures of performance for projects for in-school youth shall be: high school retention, attainment of a high school diploma, enrollment in a post-secondary educational program or vocational skills training program, or attainment of unsubsidized employment. The basic measure of performance for projects for out-of-school youth shall be: improvement in basic academic and vocational skills, return to high school, attainment of a high school equivalency diploma, enrollment in a post-secondary educational program or vocational skills training program, or attainment of unsubsidized employment. The report shall include a separate count of participants who have participated in the same program model through more than one program cycle. A methodology shall be prescribed which requires collection of post-program information on program participants including, but not limited to, whether a participant receives a high school degree or its equivalent and subsequent labor market experience for one year following termination from the program, and the extent to which the participant achieved outcomes as defined by the certified program model. The report shall also describe the types of support services provided, levels of expenditure, and demonstrate how such support services improve participant involvement in local projects.
16. Notwithstanding any other law, rule, or regulation to the contrary, including the provisions of the social services law, wages and income earned by the participants of this program who are receiving assistance under the temporary assistance for needy families block grant shall be exempt and disregarded when determining the need for such assistance in accordance with federal law and regulations or pursuant to waiver of such law and regulations. Wages and income earned by participants in this program, who are receiving assistance pursuant to the safety net assistance program, or under the temporary assistance for needy families block grant, or the veterans assistance program, shall be exempt and disregarded when determining the need for such assistance. Such income and wage exemptions and disregards shall be allowed, if, and as long as, federal financial participation is available.
17. Notwithstanding any other law, rule or regulation to the contrary, employment and training providers funded through this program shall be designated no later than June first of each year. Failure of providers to submit required monthly or fiscal reports to the department without waiver for reasonable or unanticipated circumstances shall cause forfeit of the program contract effective after sixty days notification to providers.
Section 43. Transfer of funds to the unemployment insurance occupational training fund.
Notwithstanding any other law, rule or regulation to the contrary, subject to approval by the director of the budget, the state comptroller is hereby authorized and directed to transfer funds from other state operations and aid to localities appropriations to the unemployment insurance occupational training fund in the department to meet requirements for payment of the state share of individual and family grants awarded pursuant to the federal disaster relief act of 1974, public law 93-288.