NY Exec L § 822 (2021)
2021 New York Laws EXC - Executive Article 28 - Workforce Diversity Program 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