§ 822 — Workforce participation goals

New York § 822

• Jurisdiction: New York
• Law EXC: Executive
• Art. 28: Workforce Diversity Program

Text

* § 822. Workforce participation goals. 1. The director, in\nconsultation with the department, shall develop aspirational goals for\nthe utilization of minority group members and women in each construction\ntrade, profession, and occupation.\n (a) Aspirational goals for the utilization of minority group members\nand women must set forth the expected participation of minority group\nmembers and women in each construction trade, profession, and occupation\nand shall be expressed as a percentage of the total hours of work to be\nperformed by each trade, profession, and occupation based on the\navailability of minority group members and women within each\nconstruction trade, profession, and occupation.\n (i) The aspirational goals shall set forth separate levels of expected\nparticipation by men and women for each minority group, and for\nCaucasian women, in each construction trade, profession, and occupation.\n (ii) The director may establish aspirational goals for the expected\nparticipation of minority group members and women for municipalities\nwhere the director deems feasible and appropriate.\n (iii) The director shall, in establishing the aspirational goals,\nconsider the findings of the most recent disparity study and any\nrelevant data published by the United States Census Bureau.\n (b) The director shall update the aspirational goals on a periodic\nbasis, no less than biannually.\n 2. State agencies shall, for each invitation for bids, request for\nproposals, or other solicitation that will result in the award of a\nstate contract, set forth the expected degree of workforce participation\nby minority group members and women.\n (a) Each workforce participation goal established by a state agency\nshall set forth the expected level of participation by minority group\nmembers and women in the performance of each trade, profession, and\noccupation required in the performance of the contract.\n (b) Goals for the participation of minority group members and women\nshall set forth separate goals for each of the following groups in each\nconstruction trade, profession, and occupation:\n (i) Black men;\n (ii) Black women;\n (iii) Hispanic men;\n (iv) Hispanic women;\n (v) Native American men;\n (vi) Native American women;\n (vii) Asian men;\n (viii) Asian women;\n (ix) Caucasian women.\n (c) In establishing workforce participation goals, state agencies\nshall consider factors including, but not limited to:\n (i) the findings of the most recent disparity study;\n (ii) any relevant data published by the United States Census Bureau;\nand\n (iii) if applicable, any aspirational goal established by the\ndivision.\n (d) In any case, where a state agency establishes a workforce\nparticipation goal on an invitation for bids, request for proposals, or\nother solicitation that will result in the award of a state contract for\nconstruction that deviates from the aspirational goal for work or\nservice in the county or municipality in which the work or service will\nbe performed, the state agency shall document numerical evidence\ndemonstrating that the application of the aspirational goal would not be\npractical, feasible, or appropriate.\n 3. Every contractor responding to an invitation for bids, request for\nproposals, or other solicitation that will result in the award of a\nstate contract subject to workforce participation goals pursuant to this\nsection shall agree to make a good faith effort to achieve such\nworkforce participation goal or request a waiver of such goal.\n (a) A contractor that certifies that it will make a good faith effort\nto achieve a workforce participation goal shall provide with its\nresponse to the applicable invitation for bids, request for proposals,\nor other solicitation:\n (i) A certification stating that the contractor will make a good faith\neffort to achieve the applicable workforce participation goal and will\ncontractually require any subcontractors to the contractor to make a\ngood faith effort to achieve the applicable workforce participation goal\nin any subcontracted work;\n (ii) The level of anticipated participation by minority group members\nand women as employees to the contractor, or, if the state agency has\nspecifically indicated that such documentation is not required as part\nof the response to the invitation for bids, request for proposals, or\nother solicitation, a date certain for the submission of such\ndocumentation after the award of the state contract;\n (iii) A list of all subcontractors anticipated to perform work on the\nstate contract and the level of anticipated participation by minority\ngroup members and women as employees to each subcontractor, or, if the\nstate agency has specifically indicated that such documentation is not\nrequired as part of the response to the invitation for bids, request for\nproposals, or other solicitation, a date certain for the submission of\nsuch documentation after the award of the state contract; and\n (iv) Such other information as the contracting state agency shall\nrequire.\n (b) A contractor that requests a waiver of a workforce participation\ngoal shall provide with its response to the applicable invitation for\nbids, request for proposals, or other solicitation:\n (i) Numerical evidence setting forth why the achievement of the\nworkforce participation goal is not practical, feasible, or appropriate\nin light of the construction trades, professions, and occupations\nrequired to perform the work of the state contract;\n (ii) Documentation of the contractor's efforts, and any efforts by\nsubcontractors to the contractor, to promote the inclusion of minority\ngroup members and women in construction trades, professions, and\noccupations required in the performance of the state contract;\n (iii) The level of anticipated participation by minority group members\nand women in each of the construction trades, professions, and\noccupations required in the performance of the work of the state\ncontract;\n (iv) A list of all subcontractors anticipated to perform work on the\nstate contract and the level of anticipated participation by minority\ngroup members and women as employees to each subcontractor; and\n (v) Any other relevant information evidencing that the contractor's\nachievement of the workforce participation goal would not be practical,\nfeasible, or appropriate.\n 4. A state agency may not award a state contract to a contractor\nunless the contractor has (i) certified that it will make a good faith\neffort to achieve the applicable workforce participation goal and\nprovided documentation of the workforce anticipated to perform the work\nof the state contract or (ii) submitted a waiver request which the state\nagency deems to reflect the maximum feasible participation of minority\ngroup members and women in each of the construction trades, professions,\nand occupations required in performance of the work of the state\ncontract.\n (a) In the event that a contractor submits a certification or waiver\nrequest that is accepted by the state agency, the state agency shall\nestablish in the state contract the expected level of participation by\nminority group members and women in each of the construction trades,\nprofessions, and occupations required in performance of the work of the\nstate contract, require that the contractor make good faith efforts to\nachieve such workforce participation goals, require that the contractor\nrequire any subcontractors to make a good faith effort to achieve the\napplicable workforce participation goal in any subcontracted work.\n (b) In the event that a contractor fails to submit a certification,\nwaiver request, or any other information required by the state agency,\nor the state agency determines that a contractor's waiver request does\nnot demonstrate that the applicable workforce participation goal is\nimpractical, unfeasible, or inappropriate, the state agency shall notify\nthe contractor of the deficiency in writing and provide the contractor\nfive business days to remedy the noticed deficiency. A state agency may\nreject any bid or proposal of a contractor that fails to timely respond\nto a notice of deficiency or to provide documentation remedying the\ndeficiency to the satisfaction of the state agency.\n (c) Where failure to remedy any notified deficiency in the workforce\nutilization plan is a ground for disqualification, that issue and all\nother grounds for disqualification shall be stated in writing by the\ncontracting state agency. The director shall establish via regulation,\nrules for state contracting agencies aimed at the measurement, reduction\nand elimination of erroneous business disqualifications including a\nprocess affording a contractor notice and an opportunity to be heard\nrelated to such disqualifications.\n * NB Repealed December 31, 2024\n