N.Y. Comp. Codes R. & Regs. tit. 9 § 435.5

Current through Register Vol. 46, No. 45, November 2, 2024

Section 435.5 - Affirmative action and equal employment opportunity program

Each grant recipient under this Subchapter shall be responsible for carrying out or for causing to be carried out a program for providing affirmative action and equal employment opportunity as described in this section. This section shall be applicable to grants awarded prior to June 1, 1989. For grants awarded after June 1, 1989, the provisions of article 15-A of the Executive Law, Participation by Minority Group Members and Women with Respect to State Contracts, shall apply.

(a) The office may direct each grant recipient to submit for approval either an affirmative action policy statement or an affirmative action plan as a condition for grant assistance. The plan or policy statement will be required with respect to employees of the grant recipient who will be providing design, construction and other services on the project.

(b) The grant recipient shall include and require that all contracts pursuant to this Subchapter and all documents soliciting bids or proposals therefor shall contain or make reference to the following provisions:

(1) The contractor will not discriminate against employees or applicants for employment because of race, creed, color, national origin, sex, age, disability, or marital status, and will undertake or continue existing programs of affirmative action to ensure that minority group persons and women are afforded equal opportunity without discrimination. Such programs shall include, but not be limited to, recruitment, employment, job assignment, promotion, upgrading, demotion, transfer, layoff, termination, rates of pay or other forms of compensation, and selection for training or retraining, including apprenticeship and on-the-job training.

(2) At the request of the office or the grant recipient the contractor shall request each employment agency, labor union, or authorized representative of workers with which it has a collective bargaining or other agreement or understanding and which is involved in the performance of the contract with the grant recipient to furnish a written statement that such employment agency, labor union or representative shall not discriminate because of race, creed, color, national origin, sex, age, disability or marital status and that such union or representative will cooperate in the implementation of the contractor's obligations hereunder.

(3) The contractor will state, in all solicitations or advertisements for employees placed by or on behalf of the contractor in the performance of the contract with the grant recipient, that all qualified applicants will be afforded equal employment opportunity without discrimination because of race, creed, color, national origin, sex, age, disability or marital status.

(4) The contractor will include the provisions of paragraphs (1) through (3) of this subdivision in every subcontract or purchase order in such a manner that such provisions will be binding upon each subcontractor or vendor as to its work in connection with the contract with the grant recipient.

(c)

(1) The grant recipient shall determine for each prime contractor whether an affirmative action policy statement or an affirmative action plan shall be submitted for approval. Such determination shall be based on guidelines to be established by the office. Further, every subcontractor with a contract whose value is $10,000 or greater shall be required to submit to the grant recipient for its approval an affirmative action policy statement within 10 days of selection as a subcontractor. The grant recipient shall require every contractor and subcontractor with a contract whose value is $50,000 or more to submit for approval an affirmative action plan.

(2) The office may require or cause to be required that such policy statement or plan be submitted prior to the award of the contract. Such requirement shall be indicated in the notice for bid solicitation.

(d) The office may establish overall goals for project agreements to implement the affirmative action and equal employment opportunity programs. Goals shall be a quantitative objective for employment of minority and women workers. Goals shall be based on the following criteria:

(1) relevant demographic data;

(2) availability of minorities and women with the requisite skills;

(3) possibilities for recruitment of minorities and women;

(4) training which a contractor can reasonably be able to undertake as a means of making all job titles required for contract performance available to minorities and women;

(5) past performance in regard to affirmative action and equal employment opportunity; and

(6) other relevant facts or circumstances.

(e) Procedures.

(1) The office shall establish procedures and guidelines to ensure that the grant recipients and their contractors and subcontractors undertake programs of affirmative action and equal employment opportunity as required in this Part.

(2) Every contractor and every subcontractor with a contract whose value is $10,000 or greater shall be required to submit to the grant recipient such compliance reports relating to the operation and implementation of its affirmative action and equal employment opportunity plan as shall be determined by the office.

(f) Every grant recipient and its contractors and subcontractors shall be required to make good faith efforts to meet goal requirements. Good faith efforts may include:

(1) advertisement in appropriate general circulation, trade and minority and women-oriented media;

(2) timely notice of job opportunities;

(3) the development and maintenance of lists for purposes of notifying minorities and women of employment opportunities; and

(4) maintenance of records required by the office for documenting the contractor's actions which identify minorities and women soliciting employment opportunities.

(g) Sanctions may be imposed by the office for failure to meet goal requirements unless the office determines that goal requirements should be waived because a grant recipient has made a good faith effort to comply with such requirements. Sanctions may include the following:

(1) reduction of the agreement price;

(2) suspension or termination of the agreement;

(3) retention of payments until compliance is achieved; and

(4) other penalties of which a grant recipient has notice in writing prior to or during the performance of an agreement.

(h) Any person having a question about any determination made pursuant to this Part may contact the Commissioner of Parks, Recreation and Historic Preservation, Office of Parks, Recreation and Historic Preservation, 625 Broadway, Albany, NY 12233, (518) 474-0443.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 435.5

Amended New York State Register March 8, 2023/Volume XLV, Issue 10, eff. 3/8/2023