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(a) Division determination – failure to file documents.
(1) Whenever the Director finds that a covered contractor has failed to file an Employment Report or a complete Employment Report, or has filed an Employment Report with substantial misrepresentations, the Director shall send a notice in writing by email or other electronic means to the contractor with a copy to the contracting agency describing:
(i) the noncompliance;
(ii) the corrective action necessary to remedy the noncompliance; and
(iii) a suggested date for a conciliation conference before sanctions will be imposed.
(2) If the contractor fails to take corrective action by filing a complete Employment Report, the Director may make a determination as to the sanctions to be imposed.
(3) The contractor shall have a period of seven business days to remedy the noncompliance and pursue conciliation efforts.
(i) If conciliation is successful, a conciliation agreement shall be signed by the Director and the contractor.
(ii) If conciliation is unsuccessful, the Director may find the contractor to be in noncompliance and direct sanctions to be imposed.
(b) Division determination – EEO compliance.
(1) Whenever the Director has reasonable cause to believe that a contractor is in noncompliance, the Director shall send a notice promptly and in writing by certified mail, return receipt requested, to the contractor with a copy to the contracting agency, describing:
(i) the noncompliance;
(ii) the corrective actions necessary to remedy the noncompliance; and
(iii) a suggested date for a conciliation conference before sanctions will be imposed.
(2) The contractor shall have seven business days to show cause why it should not be found in noncompliance with E.O. 50 (Appendix to 66 RCNY Chapter 10), and these regulations.
(3) The Director shall offer the contractor an opportunity to conciliate. The Director shall pursue conciliation efforts for a period of seven business days. At the Director's discretion, the conciliation period may be extended.
(i) If conciliation is successful, a conciliation agreement shall be signed by the Director and the contractor.
(ii) If conciliation is unsuccessful, a complaint shall be served on the contractor and a copy shall be served on the contracting agency and filed with the Division of Administrative Trials and Hearings or the hearing officer designated by the Commissioner.
(4) The hearing shall be held in accordance with the rules of procedure adopted by the Division.
(c) Report and recommendations.
(1) After the close of the hearing, the hearing officer shall render a report containing findings of fact, conclusions of law, and recommendations.
(2) Findings of fact shall be based exclusively upon the evidence of record and on matters officially noticed. Findings must be based upon the kind of evidence on which reasonably prudent persons are accustomed to rely in the conduct of their serious affairs; even if such evidence would be inadmissible in a civil trial. The hearing officer's experience, technical competence and specialized knowledge may be utilized in the evaluation of evidence.
(3) The report and recommendations pursuant to this subdivision (c) shall be rendered in writing within ninety days after the conclusion of the hearing, or within ninety days after submission of proposed findings of fact, conclusions of law or briefs, if submitted pursuant to the Division's rules of hearing procedure, unless this period is waived or extended by the hearing officer with the written consent of all parties, or for good cause shown on notice to all parties.
(4) The hearing officer shall cause copies of the report and recommendations to be delivered or mailed to the Director, the parties and the contracting agency head.
(d) Exceptions to report and recommendations. Within ten days after receipt of the report and recommendations, any party may submit exceptions to said report or to any recommendation contained therein. These exceptions may be responded to by other parties within seven business days of their receipt by said parties. All exceptions and responses shall be filed with the Director. Service of exceptions and responses shall be made simultaneously on all parties to the proceeding and upon the hearing officer. Requests to the Director for additional time in which to file exceptions and responses shall be in writing and copies shall be served simultaneously on all other parties. Requests for extensions must be received no later than three business days before the exceptions are due.
(e) Record and final determination. After the expiration of the time for filing exception, the Director shall make a final determination on the basis of the record, which shall be the final Administrative Order. The record shall consist of the record of the enforcement proceeding, the rulings, report and recommendations of the hearing officer and the exceptions filed subsequent to the hearing officer's decision. A copy of the determination of the Director shall be provided to the parties, the hearing officer, the contracting agency, the Corporation Counsel and the Comptroller.
(f) Sanctions.
(1) The Director shall, based upon the findings of fact and recommendations of the hearing officer and the record as a whole, determine whether the contractor is complying with applicable legal requirements and the provisions of E.O. 50 (Appendix to 66 RCNY Chapter 10) and these regulations.
(2) If the Director makes a determination of noncompliance, the Director may direct the contracting agency head that the following sanctions be imposed:
(i) disapproval of a proposed contractor;
(ii) suspension or termination of a contract;
(iii) declaring the contractor to be in default; or
(iv) in lieu of any of the foregoing sanctions, the Director may impose an employment program.
(3) The Director shall notify the contracting agency head in writing of the determination made and sanctions to be imposed.
(i) The contracting agency head may file written objection to the sanctions imposed within 5 business days of the issuance of the determination by the Director.
(ii) The contracting agency head must specify in writing his or her reasons for objecting to the sanctions imposed by the Director.
(iii) In the event such objections are filed, the Director and the agency head shall jointly determine the sanctions to be imposed.
(4) 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 these regulations be determined to be nonresponsible.
(g) Complaints.
(1) Any person who believes a violation of E.O. 50 (Appendix to 66 RCNY Chapter 10) and these regulations has occurred may file a complaint, in writing, signed and dated, with the Office during the term of a contract.
(2) The complaint shall include the name, address, and telephone number of the complainant, the name and address of the contractor committing the alleged violation of E.O. 50 (Appendix to 66 RCNY Chapter 10) and these regulations, a description of the acts considered to be the violation, and any other pertinent information which will assist in the investigation and resolution of the complaint. The complaint shall be signed by the complainant or his or her authorized representative. Complaints alleging class-type violations which do not identify the alleged discriminatee or discriminatees will be accepted, provided the other requirements of this paragraph are met.
(3) The Division may refer complaints to the appropriate City, State and Federal agencies for processing rather than processing under E.O. 50 (Appendix to 66 RCNY Chapter 10) and these regulations. Upon referring complaints to another agency, the Division shall promptly notify the complainant and the contractor of such referral.
(4) A prompt investigation shall be made by the Division.
(5) The contractor involved shall cooperate fully with any investigation. Failure or refusal to furnish information or to cooperate in the investigation is a violation of E.O. 50 (Appendix to 66 RCNY Chapter 10) and these regulations and may result in the imposition of sanctions.
(6) Upon completion of the investigation, the complaining party and the contractor involved shall be informed of the results of the investigation in writing. If the Director has reasonable cause to believe that the contractor is in noncompliance with E.O. 50 (Appendix to 66 RCNY Chapter 10) and these regulations, then enforcement proceedings shall be commenced.
(7) It is a violation of E.O. 50 (Appendix to 66 RCNY Chapter 10) and these regulations for a contractor, subcontractor, or other person to intimidate, threaten, coerce, or discriminate against any individual or business for the purpose of interfering with any right or privilege secured by E.O. 50 (Appendix to 66 RCNY Chapter 10) and these regulations or because a complaint was filed, or a person testified, assisted or participated in any manner in an investigation, proceeding, or hearing under these regulations.
(8) The identity of the complaining party shall be kept confidential on request only during the conduct of an investigation under these regulations. If such confidentiality hinders the investigation, the complaining party shall be so advised for the purpose of obtaining a waiver of confidentiality. The complaining party shall be further advised that failure to waive confidentiality may result in a determination based upon information already provided.
(Amended City Record 10/31/2023, eff. 11/30/2023)
All contracts and subcontracts in effect prior to April 25, 1980 which are not subsequently modified shall be administered in accordance with the equal employment and training provisions of any prior applicable Executive Orders. Any contract or subcontract modified on or after April 25, 1980 shall be subject to E.O. 50 (Appendix to 66 RCNY Chapter 10).
(Amended City Record 10/31/2023, eff. 11/30/2023)
To the extent permitted by law and consistent with the proper discharge of the Division's responsibilities under E.O. 50 (Appendix to 66 RCNY Chapter 10) and these regulations, all information provided by a contractor to the Division shall be confidential.
(Amended City Record 10/31/2023, eff. 11/30/2023)
The rules contained in this chapter shall become effective 30 days after final publication in the City Record and apply to all contracts, solicitations, invitations for bids, or requests for proposals which were made by the City or an applicant on or after said effective date, and to all negotiated contracts which have not been executed as of said effective date.
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