N.Y. Executive Law § 822: Workforce participation goals

* § 822. Workforce participation goals. 1. The director, in

consultation with the department, shall develop aspirational goals for

the utilization of minority group members and women in each construction

trade, profession, and occupation.

(a) Aspirational goals for the utilization of minority group members

and women must set forth the expected participation of minority group

members and women in each construction trade, profession, and occupation

and shall be expressed as a percentage of the total hours of work to be

performed by each trade, profession, and occupation based on the

availability of minority group members and women within each

construction trade, profession, and occupation.

(i) The aspirational goals shall set forth separate levels of expected

participation by men and women for each minority group, and for

Caucasian women, in each construction trade, profession, and occupation.

(ii) The director may establish aspirational goals for the expected

participation of minority group members and women for municipalities

where the director deems feasible and appropriate.

(iii) The director shall, in establishing the aspirational goals,

consider the findings of the most recent disparity study and any

relevant data published by the United States Census Bureau.

(b) The director shall update the aspirational goals on a periodic

basis, no less than biannually.

2. State agencies shall, for each invitation for bids, request for

proposals, or other solicitation that will result in the award of a

state contract, set forth the expected degree of workforce participation

by minority group members and women.

(a) Each workforce participation goal established by a state agency

shall set forth the expected level of participation by minority group

members and women in the performance of each trade, profession, and

occupation required in the performance of the contract.

(b) Goals for the participation of minority group members and women

shall set forth separate goals for each of the following groups in each

construction trade, profession, and occupation:

(i) Black men;

(ii) Black women;

(iii) Hispanic men;

(iv) Hispanic women;

(v) Native American men;

(vi) Native American women;

(vii) Asian men;

(viii) Asian women;

(ix) Caucasian women.

(c) In establishing workforce participation goals, state agencies

shall consider factors including, but not limited to:

(i) the findings of the most recent disparity study;

(ii) any relevant data published by the United States Census Bureau;

and

(iii) if applicable, any aspirational goal established by the

division.

(d) In any case, where a state agency establishes a workforce

participation goal on an invitation for bids, request for proposals, or

other solicitation that will result in the award of a state contract for

construction that deviates from the aspirational goal for work or

service in the county or municipality in which the work or service will

be performed, the state agency shall document numerical evidence

demonstrating that the application of the aspirational goal would not be

practical, feasible, or appropriate.

3. Every contractor responding to an invitation for bids, request for

proposals, or other solicitation that will result in the award of a

state contract subject to workforce participation goals pursuant to this

section shall agree to make a good faith effort to achieve such

workforce participation goal or request a waiver of such goal.

(a) A contractor that certifies that it will make a good faith effort

to achieve a workforce participation goal shall provide with its

response to the applicable invitation for bids, request for proposals,

or other solicitation:

(i) A certification stating that the contractor will make a good faith

effort to achieve the applicable workforce participation goal and will

contractually require any subcontractors to the contractor to make a

good faith effort to achieve the applicable workforce participation goal

in any subcontracted work;

(ii) The level of anticipated participation by minority group members

and women as employees to the contractor, or, if the state agency has

specifically indicated that such documentation is not required as part

of the response to the invitation for bids, request for proposals, or

other solicitation, a date certain for the submission of such

documentation after the award of the state contract;

(iii) A list of all subcontractors anticipated to perform work on the

state contract and the level of anticipated participation by minority

group members and women as employees to each subcontractor, or, if the

state agency has specifically indicated that such documentation is not

required as part of the response to the invitation for bids, request for

proposals, or other solicitation, a date certain for the submission of

such documentation after the award of the state contract; and

(iv) Such other information as the contracting state agency shall

require.

(b) A contractor that requests a waiver of a workforce participation

goal shall provide with its response to the applicable invitation for

bids, request for proposals, or other solicitation:

(i) Numerical evidence setting forth why the achievement of the

workforce participation goal is not practical, feasible, or appropriate

in light of the construction trades, professions, and occupations

required to perform the work of the state contract;

(ii) Documentation of the contractor's efforts, and any efforts by

subcontractors to the contractor, to promote the inclusion of minority

group members and women in construction trades, professions, and

occupations required in the performance of the state contract;

(iii) The level of anticipated participation by minority group members

and women in each of the construction trades, professions, and

occupations required in the performance of the work of the state

contract;

(iv) A list of all subcontractors anticipated to perform work on the

state contract and the level of anticipated participation by minority

group members and women as employees to each subcontractor; and

(v) Any other relevant information evidencing that the contractor's

achievement of the workforce participation goal would not be practical,

feasible, or appropriate.

4. A state agency may not award a state contract to a contractor

unless the contractor has (i) certified that it will make a good faith

effort to achieve the applicable workforce participation goal and

provided documentation of the workforce anticipated to perform the work

of the state contract or (ii) submitted a waiver request which the state

agency deems to reflect the maximum feasible participation of minority

group members and women in each of the construction trades, professions,

and occupations required in performance of the work of the state

contract.

(a) In the event that a contractor submits a certification or waiver

request that is accepted by the state agency, the state agency shall

establish in the state contract the expected level of participation by

minority group members and women in each of the construction trades,

professions, and occupations required in performance of the work of the

state contract, require that the contractor make good faith efforts to

achieve such workforce participation goals, require that the contractor

require any subcontractors to make a good faith effort to achieve the

applicable workforce participation goal in any subcontracted work.

(b) In the event that a contractor fails to submit a certification,

waiver request, or any other information required by the state agency,

or the state agency determines that a contractor's waiver request does

not demonstrate that the applicable workforce participation goal is

impractical, unfeasible, or inappropriate, the state agency shall notify

the contractor of the deficiency in writing and provide the contractor

five business days to remedy the noticed deficiency. A state agency may

reject any bid or proposal of a contractor that fails to timely respond

to a notice of deficiency or to provide documentation remedying the

deficiency to the satisfaction of the state agency.

(c) Where failure to remedy any notified deficiency in the workforce

utilization plan is a ground for disqualification, that issue and all

other grounds for disqualification shall be stated in writing by the

contracting state agency. The director shall establish via regulation,

rules for state contracting agencies aimed at the measurement, reduction

and elimination of erroneous business disqualifications including a

process affording a contractor notice and an opportunity to be heard

related to such disqualifications.

* NB Repealed December 31, 2024