S663

An Act concerning equal employment opportunity requirements for public works contracts and amending and supplementing P.L.1975, c.127.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. (New section) a. There is established in the Department of the Treasury, a Division of Equal Employment Opportunity in Public Contracts. The division shall establish and oversee the administration, compliance, and enforcement of an equal employment opportunity program for the hiring of minorities and women in the performance of public works contracts and ensure equal employment opportunity in awarded public works contracts consistent with P.L.1975, c.127 (C.10:5-31 et seq.) and the “Law Against Discrimination,” P.L.1945, c.169 (C.10:5-1 et. seq.). The State Treasurer shall promulgate rules and regulations, pursuant to the authority granted under subsection k. of section 6 of P.L.1975, c.127 (C.10:5-36), to effectuate the purposes of this section. The division shall have complete oversight authority, including the authority to review and revise any action of a public body awarding a public works contract, with regard to the enforcement of equal employment opportunity laws, rules, and regulations. To ensure effective implementation of the equal employment opportunity program, the division shall maintain liaison with the federal government and public bodies in this State; contractors; labor unions or representatives of workers with which contractors have collective bargaining agreements or other contracts or understandings; and minority and women groups.

As used in this section, “public body” means the State; counties, municipalities, and other political subdivisions of the State; or an agency of, or authority created by, any of the foregoing.

b. The division, or a public body that awards public works contracts, may initiate a review of compliance with equal employment opportunity laws, rules, and regulations by contractors awarded public works contracts. If the division or a public body, upon the division’s or body’s own initiative or upon the complaint of a member of the public, determines that a contractor awarded a public works contract has failed to comply the applicable equal employment opportunity laws, rules or regulations, the division or body shall require the contractor to demonstrate that it has made a good faith effort to comply. A good faith effort shall include, but need not limited to, those acts set forth in the rules and regulations promulgated in accordance with subsection a. of this section. The rules and regulations promulgated pursuant to subsection a. of this section shall set forth those acts that constitute a good faith effort to comply, including requesting qualified minorities and women from a labor union, or a representative of workers with which a contractor has a collective bargaining agreement, or other contract or understanding with whom the contractor has an exclusive hiring or referral arrangement; and using approved minority and women referral, training and outreach agency for each region. The rules and regulations in this regard shall be consistent with those used by the Office of Federal Contract Compliance Programs in the United States Department of Labor in requiring a good faith effort.

c. A public body shall comply with the rules and regulations promulgated by the State Treasurer pursuant to subsection a. of this section with respect to their obligation to assist with the compliance and enforcement efforts of the division. A public body shall:

cooperate fully with the division in the establishment and implementation of guidelines for determining whether a contractor has failed to provide equal employment opportunity in the hiring of minorities and women on public works contracts;

ensure the inclusion of mandatory equal employment opportunity language in advertisements, bids, specifications, and contracts of the public body;

include in a contract the intent of the public body to carry out its responsibilities requiring equal employment opportunity by contractors; and the contractor’s obligations under the law and the relevant rules and regulations and the consequences of failure to do so;

provide a contractor with a written description of the equal employment opportunity law and the relevant rules and regulations and a copy of the described law and rules and regulations;

require a contractor awarded public works contracts to certify that it is in compliance with the equal employment opportunity requirements;

include in a public contract a provision that requires a contractor and any subcontractors to make a good faith effort to provide equal employment opportunity for minorities and women and that provides that a failure to make a good faith effort to hire minorities and women will result in the assessment of fines and penalties by the division;

provide to the division information that indicates that a contractor is not in compliance with equal employment opportunity laws, rules, and regulations; and

provide to the division such information as it may request and as may be necessary to enable the division to fulfill its mission.

d. The division and public bodies shall use whatever means are provided by law, rule, regulation, or contract, including suspension, debarment, withholding payment, and termination of contract, to ensure that a party to a public contract makes a good faith effort to provide equal employment opportunity in the hiring or minorities and women in public works contracts. Failure on the part of a contractor to demonstrate a good faith effort shall be grounds for imposition of penalties in accordance with subsection b. of section 5 of P.L.1975, c.127 (C.10:5-35) or for the rejection of subsequent bids made by that contractor. If the division or a public body determines that a contractor has agreed to subcontract portions of a public works contract to a contractor who has failed to make a good faith effort to hire minorities and women, the division or public body may impose a penalty on the contractor in accordance subsection b. of section 6 of P.L.1975, c.127 (C.10:5-35).

2. Section 1 of P.L.1975, c.127 (10:5-31) is amended to read as follows:

1. As used in this act:

a. "Public works contract" means any contract to be performed for or on behalf of the State or any county or municipality or other political subdivision of the State, or any agency or authority created by any of the foregoing, for the construction, alteration or repair of any building or public work or for the acquisition of materials, equipment, supplies or goods and services, including professional services, with respect to which discrimination in the hiring of persons for the performance of work thereunder or under any subcontract thereunder by reason of race, creed, color, national origin, ancestry, marital status, affectional or sexual orientation, nationality, gender identity or expression, disability or sex is prohibited under R.S.10:2-1.

b. "Equal employment opportunity" means equality in opportunity for employment by any contractor, subcontractor or business firm engaged in the carrying out of a public works project including its development, design, acquisition, construction, management and operation.

(cf: P.L.2006, c.100, s.12)

3. Section 7 of P. L.1975, c.127 (C.10:5-37) is amended to read as follows:

7. Notwithstanding any provision of any State law, ordinance or regulation to the contrary, there may be included in the costs of a project or facility to which a public works contract relates any expenses incurred by a public body or private firm or individual for the purpose of furthering equal employment opportunities with respect to such project or facility or for the purpose of complying with the provisions of this act, and such expenses may be paid for or financed by any method which may be used to pay or finance other costs of development, acquisition or construction of such project or facility.

If the total cost of a construction project that is the subject of one or more construction contracts entered into by a State agency is equal to or greater than $1,000,000, or if the total cost of a construction project entered into by any other public body as defined in subsection a. section 1 of P.L. , c. (C. )(pending before the Legislature as this bill) is equal to or greater than $2,500,000, the State Treasurer shall require that the public body allocate up to one half of one percent of the value of the construction project to the financing of minority and women worker outreach and training programs.

(cf: P.L.1975, c.127, s.7)

4. This act shall take effect immediately.

STATEMENT

This bill establishes the Division of Equal Employment Opportunity in Public Contracts as a permanent division in the State Department of the Treasury to oversee and enforce equal employment opportunity requirements with regard to public works contracts at all levels of government. It directs the Treasurer to promulgate regulations to effectuate that purpose and requires public bodies to take steps to ensure compliance with all equal employment opportunity requirements when awarding and administering public contracts.

In addition, the bill provides that if the total cost of a construction project that is the subject of one or more construction contracts entered into by a State agency is equal to or greater than $1,000,000, or if the total cost of a construction project entered into by any other public body is equal to or greater than $2,500,000, the State Treasurer shall require that the public body allocate up to one half of one percent of the value of construction project to the financing of minority and women worker outreach and training programs.

The bill also broadens the definition of “public works contracts” in the “Law Against Discrimination” to include professional services contracts.