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Whenever used in these regulations, the following terms shall have the following meanings:
Age discrimination. "Age discrimination" means discrimination in employment related decisions because an individual is between the ages of 18 and 70.
Agency head. "Agency head" means the Commissioner, Chair or Director of any contracting agency.
Applicant. "Applicant" means an applicant for or recipient of City assistance for a construction project or other participant in a program related to City assistance for a construction project.
Citizenship status. "Citizenship status" means the citizenship of any person, or the immigration status of any person lawfully residing in the United States who is not a citizen or national of the United States.
City. "City" means the City of New York.
City assistance. "City assistance" means any financial assistance involving a construction project in the form of a grant, loan, contract, insurance or guarantee, or any other arrangement by which the City provides or otherwise makes available assistance in the form of:
(1) funds;
(2) services of city personnel;
(3) tax exemptions and tax abatements; or
(4) real or personal property or any interest in the use of such property, including:
(i) transfers or leases of such property for less than fair market value or for a reduced consideration; and
(ii) proceeds from a subsequent transfer or lease of such property if the City's share of its fair market value is not returned to the City.
Client Services. "Client Services" shall have the meaning set forth in the Procurement Policy Board Rules of the City of New York (9 RCNY § 1-01(e)).
Compliance. "Compliance" means a contractor having acted in accordance with the requirements of E.O. 50 (Appendix to 66 RCNY Chapter 10) and these regulations.
Commissioner. "Commissioner" means the Commissioner of the Department of Business Services.
Construction project. "Construction project" means any construction, reconstruction, rehabilitation, alteration, conversion, extension, improvement, repair or demolition of real property contracted by the City, except contracts for architectural, engineering or drafting services.
Contract. "Contract" means any written agreement, purchase order or instrument in which the City is committed to expend or does expend funds in return for work, labor, services, supplies, equipment, materials, or any combination of the foregoing:
(1) Unless otherwise required by law, the term "contract" shall include any City grant, loan, guarantee or other City assistance for a construction project.
(2) The term "contract" shall not include:
(i) contracts for financial or other assistance between the City and a government or government agency;
(ii) contracts, resolutions, indentures, declarations of trust, or other instruments authorizing or relating to the authorization, issuance, award, and sale of bonds, certificates of indebtedness, notes, or other fiscal obligations of the City, or consisting thereof; or
(iii) employment by the City of its officers and employees which is subject to the equal employment opportunity requirements of applicable law.
Contracting agency. "Contracting agency" means any administration, board, bureau, commission, department, or other governmental agency of the City, or any official thereof, authorized on behalf of the City to provide for, enter into, award, or administer contracts.
Contractor. "Contractor" means a person, including a vendor or applicant, who is a party or a proposed party to a contract with a contracting agency, first-level subcontractors of supply and service contractors, and all levels of subcontractors of construction contractors and applicants.
Director. "Director" means the Director of the Office.
Division. "Division" means the Division of Labor Services.
Economically disadvantaged person. "Economically disadvantaged person" means a person who at the time of application for entrance into a training program is either:
(1) a resident of a single person household who receives
(i) wages not in excess of 70 percent of the lower-level "urban family budget" for the City as determined by the U.S. Department of Labor, Bureau of Labor Statistics, or
(ii) receives cash welfare payments under a Federal, State, or local welfare program; or
(2) a member of a family which
(i) receives a family income less than 70 percent of the lower-level "urban family budget" for the City as determined by the U.S. Department of Labor, Bureau of Labor Statistics, or
(ii) receives cash welfare payments under a Federal, State, or local welfare program; or
(3) a Vietnam-era veteran as defined by applicable Federal law who has been unable to obtain non-government subsidized employment since discharge from the armed services; or
(4) a displaced homemaker who has not been in the labor force for 5 years but has during those years worked in the home providing unpaid services for family members and was
(i) dependent on public assistance or the income of another family member but is no longer supported by that income, or
(ii) receiving public assistance for dependent children in the home and that assistance will soon be terminated.
Employment report. "Employment report" means a report filed by a contractor containing information concerning its workforce composition, employment and salary practices, policies, programs, collective bargaining agreements, and pending lawsuits or consent decrees or court orders. The contractor may at its option submit as part of its employment report self-evaluation and transition plans written pursuant to § 504 of the Rehabilitation Act of 1973 or its affirmative action plan in lieu of those sections of the employment report which request information contained in said plan.
Employment update report. "Employment update report" means a periodic report required to be filed by a contractor when the Office identifies underutilization in a job group or employment policies and practices which mitigate against equal employment opportunity.
Equal employment opportunity. "Equal employment opportunity" means the treatment of all employees and applicants for employment without unlawful discrimination as to race, creed, color, national origin, sex, age, handicap, marital status, sexual orientation or citizenship status in all employment decisions, including but not limited to recruitment, hiring, compensation, training and apprenticeship, promotion, upgrading, demotion, downgrading, transfer, lay-off and termination, and all other terms and conditions of employment except as provided by law.
Handicapped individual. "Handicapped individual" means any person who has or had a physical or mental impairment that substantially limits one or more major life activities, and has a record of such an impairment.
(1) The term "physical or mental impairment" means a physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genito-urinary; hemic and lymphatic; skin, and endocrine; or a mental or psychological disorder, such as mental retardation, developmental disability, organic brain syndrome, emotional or mental illness and specific learning disabilities. It includes, but is not limited to, such diseases and conditions as orthopedic, visual speech and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, alcoholism, substance abuse, and drug addiction.
(2) The term "major life activities" means functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working.
(3) The term "has a record of such an impairment" means has a history of, or has been classified as having, a mental or physical impairment that substantially limits one or more major life activities.
(4) The term "otherwise qualified" means a handicapped person, who, with reasonable accommodation can satisfy the essential requisites of the job or benefit in question, and in the case of alcoholism, substance abuse and drug addiction, is recovering and currently free of abuse of same.
(5) The term "reasonable accommodation" means such accommodation to an employee's or prospective employee's physical or mental impairment as shall not cause undue hardship in the conduct of the contractor's business. The contractor shall have the burden of demonstrating such hardship.
Job group(s). "Job group(s)" means a group of jobs having similar content, wage rates, and opportunities;
Minorities. "Minorities" means Blacks, Hispanics (non-European), Asians, and Native Americans (American Indians, Eskimos, Aleuts);
Noncompliance. "Noncompliance" means a contractor having failed to act in accordance with E.O. 50 (Appendix to 66 RCNY Chapter 10) and these regulations;
Person. "Person" means any natural person, corporation, partnership, sole proprietorship, or unincorporated agency;
Prime contractor. "Prime contractor" means any person who is a party or proposed party to a contract with a contracting agency;
Subcontractor. "Subcontractor" means any person having an agreement or arrangement or proposed agreement or arrangement with a contractor in which any portion of the contractor's duty to perform work is undertaken or assumed by such person; provided that a supplier of unfinished products to a supply and service contractor needed to produce the item contracted for shall not be considered a subcontractor;
Trainee. "Trainee" means an economically disadvantaged person who qualifies for and receives training in one of the construction trades pursuant to a program, other than an apprenticeship program, approved by the Division and, where required by law, the New York State Department of Labor and the United States Department of Labor, Office of Apprenticeship and Training;
Underutilization. "Underutilization" means a statistically significant disparity between the employment of members of a racial, ethnic, or sexual group and their availability as determined by the Office's utilization analysis.
(Amended City Record 10/31/2023, eff. 11/30/2023)
(a) General.
(1) All contractors doing business with the City without regard to the dollar amount or source of funding of the contract must be equal employment opportunity employers.
(2) Contractors whose contracts are funded in whole or in part by federal or state funds must also meet the standards and applicable legal requirements of the funding source. To the extent that federal or state requirements are different from the requirements of E.O. 50 (Appendix to 66 RCNY Chapter 10) and these regulations, the requirements of E.O. 50 (Appendix to 66 RCNY Chapter 10) and these regulations shall apply, except in those circumstances where application of the City's requirements would make it impossible for the contractor to meet the program requirements of the funding source.
(b) Submission requirements.
(1) Except as provided herein, no contracting agency shall enter into a contract with any contractor unless such contractor's Employment Report is first submitted to the Division for its review.
(i) Before the contract may be awarded, each proposed supply and service contractor for a contract in excess of the small purchase limit established by rule of the Procurement Policy Board for procurement for goods and services who employs 50 or more employees is required to submit to the Division an Employment Report for the facility or establishment where the contract will be performed and where the Division deems necessary for a full review, the principle place of business or corporate headquarters;
(ii) Before the contract may be awarded, each proposed construction contractor for a contract in excess of $1 million is required to submit to the Division an Employment Report for its principal place of business or headquarters, the construction site where the contract will be performed and other non-City funded construction sites of the contractor within the City;
(iii) A contracting agency may award a requirements contract or an open market purchase agreement covered by these regulations prior to review by the Division of the contractor's Employment Report but may not make a purchase order against such contract or agreement until it has first transmitted such contractor's Employment Report to the Division and the Division has completed its review.
(2) Unless otherwise provided by federal or state law, an Employment Report shall not be required for
(i) a construction contract in the amount of $1 million or less or construction subcontract in the amount of $750,000 or less; or
(ii) a supply and service contract or subcontract in the amount of the small purchase limit established by rule of the Procurement Policy Board for procurement for goods and services or less or where the contractor employs less than 50 employees. In such cases the contracting agency shall promptly notify the Office in writing prior to the award of such a contract. To determine the applicability of this paragraph (2) to a City-assisted construction contract, the amount or value of the City assistance shall govern; or
(iii) an emergency contract or other exempt contract except as the Division may direct by regulation; or
(iv) a contract with a contractor who has received a certificate of compliance with the equal employment opportunity requirements of applicable law from the Division within the preceding thirty-six months, or an appropriate agency of the State of New York or of the United States within the preceding thirty-six months, except as the Division may direct by regulation; or
(v) a contract for a procurement of information technology that is within the small purchase limits established by rule of the Procurement Policy Board.
(vi) a contract for Client Services, as defined above; except that nothing in this section shall prevent the Commissioner in the Commissioner's sole discretion from requiring an employment report from a Client Services agency that has contracted with the City if the Commissioner believes that the Client Services agency is in violation of the equal employment requirements of City, State or Federal law.
(3) Unless otherwise provided by law, an Employment Report shall not be required on a preaward basis for an emergency contract awarded pursuant to Executive Order No. 2 (2nd) (1970), as amended, Section 315 of the Charter or the General Municipal Law § 103(4). In such cases, the contracting agency shall promptly notify the Office of the award of such a contract by submission of a copy of the documentation submitted to the Law Department. In the event of an emergency not covered under the foregoing provisions, the contracting agency head will notify the Director in writing requesting a waiver of the preaward submission requirements. Said request must contain a statement of reason for such waiver request.
(4) Unless otherwise required by law, an Employment Report shall not be required for a covered supply and service contract with a contractor who has received a valid certificate of compliance with the equal employment requirement of applicable law as follows:
(i) where a contractor has received a Certificate of Equal Employment Compliance issued after a desk audit by an appropriate federal or state agency in the preceding 36 months, the proposed contractor shall submit a copy of such certificate of compliance to the Division;
(ii) where a contractor has been desk audited by an appropriate government agency and found to have deficiencies with respect to equal employment compliance and has agreed, within the preceding 36 months, to correct these deficiencies, the contractor may submit documentation regarding the finding of deficiencies and corrective measures taken. The Division may thereafter, in its discretion, require the submission of all reports concerning implementation of corrective measures or a completed Employment Report; and
(iii) where a contractor has been reviewed by the Division and issued a certificate of compliance in the preceding 36 months, the contractor shall submit a copy of such certificate of compliance to the Division.
(5) Unless otherwise required by law, the Division may in its discretion waive the submission of an Employment Report where the contractor is in the process of being desk audited by an appropriate government agency and grant the contractor a conditional approval. Upon completion of the audit, the contractor must advise the Bureau of the results of the audit. The Division may thereafter in its discretion, require the submission of all reports concerning implementation of corrective measures or a completed Employment Report.
(6) The contractor may at its option submit its existing Affirmative Action Plan ("Plan") in lieu of parts of the Employment Report, provided that the Plan contains essentially the same information as those portions of the Employment Report.
(7) The contractor may at its option submit copies of its self-evaluation and transition plans written pursuant to § 504 of the Rehabilitation Act of 1973.
(8) The Director may, on the written request of the contracting agency head, waive the submission requirements of E.O. 50 (Appendix to 66 RCNY Chapter 10) and these regulations where the agency head certifies that:
(i) the contracting agency has been unable to secure the submission of an employment report after making diligent efforts; and
(ii) the proposed contractor is the sole provider of a unique service, supply or labor; or
(iii) because of the unique circumstances of the contract it would not be in the public interest to require submission of an Employment Report prior to the award of the contract.
(9) Failure to file timely, complete and accurate reports as required by E.O. 50 (Appendix to 66 RCNY Chapter 10) and these regulations constitutes noncompliance with E.O. 50 (Appendix to 66 RCNY Chapter 10) and these regulations. The Director may direct the contracting agency head to impose sanctions authorized by E.O. 50 (Appendix to 66 RCNY Chapter 10) and these regulations in connection with such noncompliance. The Division shall notify the contracting agency in writing of any such failure as soon as practicable.
(Amended City Record 10/31/2023, eff. 11/30/2023)
(a) Contract language – all contracts. Each contracting agency shall incorporate into every contract in excess of the small purchase limit established by rule of the Procurement Policy Board to which it becomes a party the following language:
"This contract is subject to the requirements of Executive Order No. 50 (April 25, 1980) (Appendix to 66 RCNY Chapter 10) ("E.O. 50") and the Rules and Regulations promulgated thereunder. No contract will be awarded unless and until these requirements have been complied with in their entirety. By signing this contract, the contractor agrees that it:
(1) will not discriminate unlawfully against any employee or applicant for employment because of race, creed, color, national origin, sex, age, handicap, marital status, sexual orientation or citizenship status with respect to all employment decisions including, but not limited to recruitment, hiring, upgrading, demotion, downgrading, transfer, training, rates of pay or other forms of compensation, layoff, termination, and all other terms and conditions of employment;
(2) will not discriminate in the selection of subcontractors on the basis of the owner's, partners' or shareholders' race, color, creed, national origin, sex, age, handicap, marital status, sexual orientation or citizenship status;
(3) will state in all solicitations or advertisements for employees placed by or on behalf of the contractor that all qualified applicants will receive consideration for employment without regard to race, creed, color, national origin, sex, age, handicap, marital status, sexual orientation or citizenship status or is an equal employment opportunity employer;
(4) will send to each labor organization or representative of workers with which it has a collective bargaining agreement or other contract or memorandum of understanding, written notification of its equal employment opportunity commitments under E.O. 50 (Appendix to 66 RCNY Chapter 10) and the rules and regulations promulgated thereunder;
(5) will furnish before the contract is awarded all information and reports including an Employment Report which are required by E.O. 50 (Appendix to 66 RCNY Chapter 10) the rules and regulations promulgated thereunder, and orders of the Director of the Office of Labor Services ("Division"). Copies of all required reports are available upon request from the contracting agency; and
(6) will permit the Division to have access to all relevant books, records and accounts by the Division for the purposes of investigation to ascertain compliance with such rules, regulations, and orders. The contractor understands that in the event of its noncompliance with the nondiscrimination clauses of this contract or with any of such rules, regulations, or orders, such noncompliance shall constitute a material breach of the contract and noncompliance with E.O. 50 (Appendix to 66 RCNY Chapter 10) and the rules and regulations promulgated thereunder. After a hearing held pursuant to the rules of the Division, the Director may direct the imposition by the contracting agency head of any or all of the following sanctions:
(i) disapproval of the contractor;
(ii) suspension or termination of the contract;
(iii) declaring the contractor in default; or
(iv) in lieu of any of the foregoing sanctions, the Director may impose an employment program.
The Director of the Division may recommend to the contracting agency head that a contractor who has repeatedly failed to comply with E.O. 50 (Appendix to 66 RCNY Chapter 10) and the rules and regulations promulgated thereunder be determined to be nonresponsible.
The contractor agrees to include the provisions of the foregoing paragraphs in every subcontract or purchase order in excess of the small purchase limit established by rule of the Procurement Policy Board to which it becomes a party unless exempted by E.O. 50 (Appendix to 66 RCNY Chapter 10) and the rules and regulations promulgated thereunder, so that such provisions will be binding upon each subcontractor or vendor. The contractor will take such action with respect to any subcontract or purchase order as may be directed by the Director of the Division of Labor Services as a means of enforcing such provisions including sanctions for noncompliance.
The contractor further agrees that it will refrain from entering into any contract or contract modification subject to E.O. 50 (Appendix to 66 RCNY Chapter 10) and the rules and regulations promulgated thereunder with a subcontractor who is not in compliance with the requirements of E.O. 50 (Appendix to 66 RCNY Chapter 10) and the rules and regulations promulgated thereunder."
(b) Special provisions for construction contracts. In addition to the contractual provisions required in 66 RCNY § 10-04(a), each contracting agency shall incorporate into every contract for a construction project in excess of $125,000 to which it becomes a party the following language:
"The contractor further agrees that it shall employ trainees for training level jobs and it shall participate in on-the-job training programs other than apprenticeship programs which are approved by the Division and where required by law, the U.S. Department of Labor, Bureau of Apprenticeship Training or the New York State Department of Labor.
The contractor shall make a good faith effort to achieve the ratio of one (1) trainee to four (4) journey-level employees of each trade on each construction project; provided, that the trainee requirement shall not apply to contracts in the amount of $125,000 or less.
"Trainee" means an economically disadvantaged person who qualifies for and receives training in one of the construction trades pursuant to a program, other than an apprenticeship program, approved by the Division and, where required by law, the New York State Department of Labor and the United States Department of Labor, Bureau of Apprenticeship and Training.
The contractor shall be considered to employ 4 journey-level employees in a particular trade when he or she employs any number of journey-level employees in that craft whose aggregate work hours equal the number of hours 4 full-time journey-level employees would have worked in a work week as defined by the prevailing practice in the industry for the particular craft, i.e., 40 hours, 37 1/2 hours, 35 hours, etc. For example, in a craft where there is a forty-hour work week, the employment of 4 journey-level employees results in 160 hours of employment (4 × 40). Hence, any number of journey-level employees which results in 160 hours of work is considered for purposes of the training program to equal 4 journey-level employees, i.e., 3 journey-level employees who work 53 1/3 hours (3 × 53 1/3 = 160).
The training requirement shall not apply to any trade in which the employment of four or more journey-level employees and the trainee shall be for less than 4 consecutive weeks; provided, that 4 weeks shall mean 4 weeks of full-time work as defined by the prevailing practice in the industry for the particular craft, i.e., 160 hours (4 weeks × 40 hours), 150 hours (4 weeks × 37 1/2 hours), 140 hours (4 weeks × 35 hours), etc.
The contractor shall attempt to provide continuous employment for trainees after the completion of the contract to enable them to complete their course of training.
Union contractors shall refer, recommend and sponsor for union membership any of their trainees who can perform the duties of a qualified journey-level employee or who have satisfactorily completed the training program. Such former trainee shall be paid full journey-level wages and fringe benefits, whether or not union membership is granted after such referral, recommendation or sponsorship, and the contractor shall attempt to continue the employment of such persons.
In the event of a failure to provide training to the required number of trainees for the required number of weeks, the contractor's compensation shall be decreased by an amount equal to the difference between the wages and fringe benefits paid by the contractor to the trainees and the wages and fringe benefits which would have been paid to the trainees had the number and duration of the positions been as required unless the contractor can demonstrate that it made a good faith effort to provide training and was unsuccessful. The wages and fringes deducted will be whatever a first term trainee would have received under the prevailing wage schedule in effect at the time the trainees should have been employed.
A good faith effort includes at least:
(i) documented efforts to secure trainees from approved training programs; and
(ii) documented outreach efforts to New York State Employment Service, Department of Employment, TAP Centers, community and civil rights groups to identify candidates for training positions and sponsorship of those persons by the contractor for entrance into an approved training program; and
(iii) written notification to the Division that the contractor has been unable to secure trainees pursuant to paragraphs (i) and (ii) above and requesting the Division's assistance in securing trainees; provided, that neither the provisions of any collective bargaining agreement nor the refusal by a union with whom the contractor has a collective bargaining agreement to recognize the validity of the training program shall excuse the contractor's obligation to provide training pursuant to E.O. 50 (Appendix to 66 RCNY Chapter 10) and these regulations.
To demonstrate its good faith effort, the contractor may at its option supply documentation concerning its employment of trainees on all its construction sites, both City and non-City funded. The Division will review this documentation as part of its analysis to determine whether the contractor made a good faith effort.
The contractor will also include the training provisions of this section in every subcontract in excess of $125,000 to which it becomes a party unless exempted by E.O. 50 (Appendix to 66 RCNY Chapter 10) and the rules and regulations promulgated thereunder so that such provisions will be binding upon each subcontractor. The contractor will take such action with respect to any subcontract as the Division may direct as a means of enforcing such provisions, including sanctions for noncompliance.
The contractor further agrees that it will assist and cooperate with the Division in obtaining the compliance of subcontractors with the requirements of E.O. 50 (Appendix to 66 RCNY Chapter 10) and the rules and regulations promulgated thereunder, and it will furnish the Division with information necessary for supervision of such compliance."
(c) Special provisions for city-assisted contracts. [Reserved.]
(d) Preaward compliance generally.
(1) No contracting agency shall enter into a construction contract in excess of $1 million, or a supply and service contract in excess of the small purchase limit established by rule of the Procurement Policy Board for procurement for goods and services when the contractor employs 50 or more employees, unless the contractor's Employment Report is first submitted to the Division for its review and approval.
(2) The contracting agency, at the time a proposed covered contractor is identified, either through low bid or negotiation, shall notify the Division in writing of the name of the proposed contractor, the contract in question and dollar amount.
(3) The contracting agency shall transmit a completed Employment Report to the Division within ten business days after the identification of a proposed covered contractor.
(4) The contracting agency may thereafter award a contract, unless the Division gives prior written notice to the contracting agency and the contractor as follows:
(i) If the Division notifies the contracting agency and the contractor within five business days after the receipt by the Division of the Employment Report that the contractor has failed to submit a complete report, the Director may require the contracting agency to disapprove the contractor unless such deficiency is corrected in a timely manner; and
(ii) If the Division notifies the contracting agency and the contractor within fifteen business days of the receipt by the Division of the completed Employment Report that the Division's analysis of the contractor's workforce indicates underutilization and therefore the Division has reason to believe that the contractor is not in substantial compliance with applicable legal requirements and the provisions of E.O. 50 (Appendix to 66 RCNY Chapter 10) and these regulations, the Division shall promptly take such action as may be necessary to remedy the contractor's noncompliance. These time limits shall apply to the review of all Employment Reports submitted by subcontractors or contractors who are a party to a requirements contract or an open market purchase agreement.
(iii) The time limits for this subdivision (d) begin to run on the business day following receipt of the Employment Report.
(5) The contracting agency shall notify the Division in writing of the award of a covered contract.
(6) With respect to covered supply and service contracts, the contracting agency shall also:
(i) notify the Division upon the submission of the prime contractor's Employment Report of any subcontracts in excess of the small purchase limit established by rule of the Procurement Policy Board for procurements for goods and services where the subcontractor employs 50 or more employees; and
(ii) transmit the subcontractor's completed Employment Report to the Division for review and approval.
(7) With respect to covered construction contracts, the contracting agency shall in addition:
(i) notify the Division in writing of its commencement to work order;
(ii) notify the Division in writing of the contractor's application for approval of subcontractors and transmit to the Division the subcontractors' completed Employment Reports for review and approval before allowing the contractor to subcontract any work; and
(iii) notify the Division in writing when the contract is 98 percent complete.
(Amended City Record 10/31/2023, eff. 11/30/2023)
(a) Division review – generally.
(1) It shall be the responsibility of the Division to implement, monitor compliance with, and enforce E.O. 50 (Appendix to 66 RCNY Chapter 10), these regulations and programs established pursuant to City, State and Federal law requiring contractors to provide equal employment opportunity.
(2) The Division shall conduct a preaward compliance review to determine whether the contractor maintains nondiscriminatory hiring and employment practices and is taking steps to insure that applicants are employed and that employees are placed, trained, upgraded, promoted, paid, and otherwise treated during employment without regard to race, creed, color, sex, national origin, age, handicap, marital status, sexual orientation or citizenship status.
(3) The Division's preaward compliance review shall proceed in the following manner:
(i) The Division shall analyze the contractor's Employment Report, with special attention directed to the composition of the work force and the contractor's employment policies, practices and procedures, including the following: recruitment, outreach, interviewing practices, pre-employment physical exams, employee evaluations, supervisor accountability, EEO training, promotional and transfer practices, training programs, employee counseling, job descriptions, architectural and other barriers, salaries and wage plans, fringe benefits, work environment, changing facilities, and collective bargaining agreements;
(ii) If the Division deems it appropriate as part of its compliance review, or if the Office finds that the material submitted is incomplete or raises questions concerning the contractor's efforts to meet the requirements of E.O. 50 (Appendix to 66 RCNY Chapter 10) and these regulations, the Division may:
(A) hold a conference with the contractor to gain information necessary to complete the compliance review and, where necessary, to develop an Employment Program; and
(B) perform an on site review of those matters which were not fully or satisfactorily addressed in the Employment Report or at the conference.
(iii) The Division will take into consideration consent decrees, court and administrative orders and conciliation agreements when analyzing a contractor's compliance with E.O. 50 (Appendix to 66 RCNY Chapter 10) and these regulations. The Division will not impose requirements which are inconsistent with the foregoing.
(b) Division review – supply and services contracts.
(1) After the Division has completed its preaward compliance review and has determined that a proposed covered contractor is in compliance with the requirements of E.O. 50 (Appendix to 66 RCNY Chapter 10) and these regulations, it shall issue a certificate of compliance which shall be valid for 36 months.
(2) After the Division has completed its preaward compliance review and has identified underutilization or employment policies and practices which mitigate against equal employment opportunity, it may negotiate an Employment Program or approve the proposed covered contractor with reservations and monitor the compliance of the contractor with E.O. 50 (Appendix to 66 RCNY Chapter 10) and these regulations during the term of the contract. The monitoring shall consist of:
(i) an analysis of Employment Update Reports which the contractor is required to submit on a periodic basis; and
(ii) where necessary, conferences and on site reviews.
(c) Division review – construction contracts.
(1) During the preaward compliance review, the Division may when it deems necessary hold a preaward conference for contracts for which an Employment Report is required pursuant to this chapter. At the conference, the Division will review the contents of the Employment Report in detail with the contractor to ensure compliance with applicable Federal, State, and City equal employment opportunity and training requirements. The Division shall, thereafter, issue a certificate of compliance which shall be valid for 36 months.
(2) During the term of the contract, the Division shall monitor the compliance of the contractor with the requirements of E.O. 50 (Appendix to 66 RCNY Chapter 10) and these regulations. The monitoring may consist of:
(i) an analysis of the payroll records or other workforce data tables on City and non-City funded sites which the contractor is required to submit on a periodic basis; and
(ii) field visits to City and non-City funded construction sites of the contractor within the City.
(3) Upon completion of the contract and prior to final payment, the Division may perform an audit of the contractor's payroll records and any other information submitted concerning compliance with the training requirements of E.O. 50 (Appendix to 66 RCNY Chapter 10) and these regulations to determine whether the contractor has made a good faith effort to comply with these requirements and whether the contractor's compensation should be reduced for failure to provide the required training. The contractor and the contracting agency shall be given notice if the Division's audit reveals that the contractor failed to provide training for the required number of trainees for the required number of weeks, or that the contractor has acted to circumvent the training requirements. In such case, unless the contractor can demonstrate that it made a good faith effort to provide the training, the contractor's compensation will be reduced. The Division shall evaluate all information submitted by the contractor concerning its good faith effort and consult with the contracting agency before a decision is made as to whether a training violation has occurred. The Division shall notify the contractor and contracting agency of its determination.
(d) [Reserved.]
(Amended City Record 10/31/2023, eff. 11/30/2023)
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