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Condo-Co-op Helpline: Asylum Seekers and the New York City Construction Industry

Like most of the country, New York City has had a shortage of skilled construction labor. Most observers believe this is a result of long-term stagnation of wages in the industry, the retirement of the baby boomers and low numbers of new workers entering the industry.

New York State and New York City have tried to protect workers in the construction industry with wage theft protections including, without limitation, making general contractors on private projects liable for wages due to employees of subcontractors in a scheme modeled on the prevailing wage enforcement provisions in the Labor Law. In addition, New York City has set a minimum living wage for workers in New York City of $15 per hour. However, asylum seekers joining the underground cash economy is likely to undermine these efforts.

New York City is investing heavily in making construction work safer for both workers and the public. Recent New York City Building Code amendments are intended to improve safety in construction and to allow the NYC Department of Buildings to gather data on the causes of construction injuries to workers and pedestrians and damage to adjacent properties. Workers on construction projects in New York City must take a 30-hour OSHA course on basic safety and a 100-hour OSHA course on all safety rules and OSHA requirements.

New York City has over 90,000 asylum seekers, and they likely will try to work in construction. If they are typical of undocumented workers, they will work for substandard wages and will not have been trained or hold OSHA certificates. This is not a good scenario for contractors and project owners, nor for cooperative and condominium buildings.

Hiring contractors who are using asylum seekers poses risks. If there are untrained/uncertified workers on the site and there are accidents, their presence may be basis for fines or negligence claims against the cooperative and condominiums for allowing them on the site. Untrained/uncertified workers on the site may impair insurance coverage.

There are also risks of criminal charges for employing undocumented workers. While New York City is a sanctuary city, there is the potential for significant fines. There is no indication that the Biden Administration will allow asylum seekers to obtain work permits.

More likely, the U.S. Government is ignoring the cries for help from so-called sanctuary cities until these cities begin to cooperate in deporting the asylum seekers (most of whom are economic refugees who are not eligible for asylum in the United States). Cooperative and condominium buildings would be well served to avoid these issues and simply require contractors to provide I-9s for workers.

This column presents a general discussion. This column does not provide legal advice. Please consult your attorney for specific legal advice.

Carol A. Sigmond
Greenspoon Marder LLP
590 Madison Avenue, Suite 1800
New York, NY 10022