Attachment 23 NYSAG Lefkowitz to Lasker- present Proposed Governers Executive Order Certified 2017-07-25 doc 12 et seq

1977-07-12; Filed Transcript of Record 5-9-77- 

Case MDL certified No. 3011 2017-07-25 Document doc 12,2017-10-06 25-23 Filed 06/24/21 doc 23, Page 1 of 28 

2017-08-09-3 doc 2, 2017-08-09-4 doc 1-6 

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STATE OF 1;EW YORK 

F.XF.CUTTV£ DEPARTMENT 

NEW YORK STATE DIVISION OF HUW1.N RIGHTS 

NOTICE OF PROPOSED AGENCY i\CTI.\Xi RELATiNG 

TO REGULATl




.. 

REGL'UITIONS OF 'l'HE CC~1ISSIONER OF THE 

, ' 

srrATE DI\/ISION OF Hu1>1AN EIGHTS 

PURSUM1I' TO EXEL'U'l'IVE ORDER NO. 4 5 ( 1977) 

FOR STATE AND STATE-ASSIS'l'ED aJNSTRtX.:TION CONTRtlCTS 

0760




TlillLE OF CONTENI'S 

~ction 1 SCO};)eo "' " " v o o ~ • • o· 11 (I .;, • ., "' .o • 

1 

Section 2 

Coverage •.••..•.........• 

1 

Section 3 

Definitions •............... 

2 

Section 4 Contract provision._s. . . . . . . . . . . . . 

3 ,, 

Section 5 corrpliru1ce Reports • • • . . • • . • • . . 

10 

Section 6 Duties of State Agencies . . . . • • . . . . 

ll 

Section 7 Sanction.s and Rerrc-dies • • • . . - • . . . 

12 

Section 8 Separabi.li t:y Clause. . . • . . . . . . . . 

14 

Section 9 Incorporation by Reference . . . • . . . . 

14 





REGUlATIONS- OF '1'"1-IE COMHISSIONER G'F THE 

STATE DIVISION OF IrL1I>1A.N RIGI'fl'S 

PURSUANI' TO EXFCL"TIVE ORDER NO. 45 (1977) 

FOR STATE A"lD STATE-ASSISTED CONSTHOCI'ION CC.l'ITRICIS 

Exercising the authorit}' vested in rre by Executive Order 45 

(1977) and by Section 295.9 of the HurrJan Rights I.av;, I hereby pro.'TlUlgate 

tJ1e regulations set forth below. 

REGJIATIONS OF 'IH.E m•lr 1 USSIONT:F OF THE 

STA'TE DIVISION OF HD1-1AN RIGHI'S 

PURSUANT TO EXB:IJTIVE ORDER NO. 45 (1977) 

FOR S'TATE lli"D S'I'A'l'E-ASSISTEtl OJNSTRUCTION COOTH.i!\C'TS 

Section l. 

The program promulgated here.by is intended to establish minirm..u--n , 

standards for all areas of the Su1te. 1'-l'nere a local governrrerrt re.11Jires 

an affinmti ve action prograrn of construction contractors wi iJ1in its geographic 

area, that program wi.ll be preserved and the rrore stringent conditions 

of the two prograrns will be app1ica.0le. ~'l'here t.he federal 

gDvemrrent rcx:xuires an affirmative action program of construction contractors 

within a given geographic area, t.l-J.e rmre strinqent conditions 

as between the State program and the Federal program will be applicable. 

Where a corrprehensive program has been negotiated by a local goverrment 

togetl1er wiiJ1 appropriate industry 1 labor and minority corrmunity groups, 

the Conroissioner of Hurran Rights, through t.lte Office of Stat.e Contract 

C'..orrpliance (C.SCC) m:-:~y approve that pra




into the contract .in lieu of t,1-te provisions requil-ed in Section 4 hereof, 

as to those trades covered by the exe:rrption, and exeni:>tions will be .reviewed 

perici1ically. 

Sectia.'i 3. 

Definitions 

In addition to the terrrB defined in Executive Order No. 45 

(1977) , for the purpose of these regulations: 

•' 

(a) Contractor - arry person or entity engaged in construction 

under a prirre contract of $50,000 or rrore on a State or State-assisted 

o:::mstruction contract, or who has contracts which, in the current 12.,- . 

m:mth period, tota1 or can reasonably be e:x:~cted to total $50,000 or 

nnre. 

(b) Subcontractor - any person or entity engaged in construction 

under a subcontract of $10,000 or rrore in relation to a State or 

State-assisted construction contract. 

(c) Minority - includes Blacks, Hispa1·1ics (non-European), 

?,sian Americans and Am2rican Indians . 

(d) Buildinq and construction trades - includes but is not 

limited to: electrical workers; carpenters; steamfitters; m:=Lal, wire 

and wood .latl1ers; painters; operating engineers; operating engineers 

(equipmsnt) ; operating engineers (surve:]lOrs) ; plumbers; structural iron 

V.lork.ers; elevator construct.ors; bricklayers; asbestos workers; roofers; 

oman-ental ironworkers; cerrent masons; glaziers; plasterers; tearnst.ers; 

teamsters (ready-mix concrete); rrosaic, tile and terrazzo \




(i) tvtinority and ferrule (sub) contractor or busiJless - any finn 

that .is owned 51 per cent or rrore by warren or by a rrelTber or m2.nbers of a 

minority group. 

Section 4. 

Contract provisions 

Pursu..~'!t to 1\rticles III and IV of Executive Order 45 (1977) , 

every State and State-assisted construction contract and subcontract, and 

tl1e bidding docwrents, or ot.'"ler solid tations of prospective contractors 

tl1erefor, unless exempted w




trade by trade basis and the approxirnate number 

of hours to be worked by ea




(B) Iaoor areas under 500,000 J?Clpulation. 

Contractors and subcontractors er:ciaged~n cor:S truebon 

work in [labor areas other than those identified 

in paragraph ( 1) o£ this subdivision] shall sot fort.h · 

goals of minority workforce utilization within at 

least the percentage ranges which the OSCC shall promulgate 

for those labor areas, wi1ich ranges shall be 

included in tJ1e bid docurrEnt.s. and other solicitations 

of p:rospecti ve contractors for sp:_"'Cifi.c 

const.ru.ctJon contracts. 

(C) 

Implerrentationv 

(i) 'Ihese goals shall express hours of on-t.ltejob 

training and employrrent of minority workers 

as a percentage of the total hours to be worked 

by the contractor's and subc'Ontractor' s entire 

workforce in each building and construction 

trade on all projects (both State and non-St..'l.te) 

in the labor area during the ]Jerfonmnce of its 

contract or subcontract. The ranges established 

for labor areas otl:.er than the labor areas in 

which the State or State-assisted project is 

located shall apply to the contractor's or su..lrcontractor's 

cxmstru.ction activity in such other 

labor area(s) during said perfor:rrance. 

, . 

(ii) All classifications of workers rray be used 

t.o satisfy these goals (i.e., journey'Tren, apprentices, 

helpers, trainees) . 'I'he hotrrs for 

minority work and training nnJSt be S1Jbstantially 

unifonn through the length of the contract, on / 

all projects and for each of the trades. Further, 

the transfer of minority employees or tr;ainees from 

employer-to-employer or from projE~ct-to-project. 

for the sole purr-10se of rreetir1g the contractor's 

or subcontractor's goal shall be a violation of 

these conditions. 

(i.ii) On or before July 1, 1981, cont.ractors and 

subcontractors shall rr:a.l(e good fait'! efforts to 

errploy minority journey1ren, as to their numbers 

and as to hours of utilization, in each building 

and construction trade, in t11e sarre percentage 

as the percentage of minorities in the appropriate 

labor area as defined in Section 3 (f) . 

( i v) In read1ing t."te goals herein, every effort 

shall be rr.-.:Jde to find and Gtploy qualified minority 

journeymen. Ha-:ever, '-"here feasible, apprentices and trainees 

- 5 - 



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shall be employed on all projects subject 

to these conditions. 

(v} A contractor or subc:ontractor shall be 

deen-ed in compliance with the foregoing, 

subject to at least anm.13.l review: 

(a) If t:""1e contractor or subcontractor 

can establish that it is a n-ernber of an ernplayer's 

trade association or other enployer 

trade organization whiD""1 has as one of its 

puq:Dses the expanded utilization of minority 

workforce, and that the minority workforce 

ut.i..lizati.on ra.te in that building a."ld c'Onstruction 

trade by all m?.mber employers in 

such association or organization itself rreets 

the goal on the total of all their construction 

projects within t:'le geographic area; 

provided, however, that if the contractor 

or suL'Contractor has denied equal ernplo;{nFnt 

opportunity, it shall not be in con-pliance; 

or 

>: 

(b) If the contractor or subcontractor 

ca..'l establish t:'lat it has a collective bargaining 

agreerrent with a union or other 

enployee organization, Ll-tat it utilizes that 

union or organization as i t.s source for over 

eighty percent of its workforce needs, and 

that the minority workforce utilization rate 

in that buildi.'1g and construction trade itself 

meet...s the goal on all construction projects to 

which the union or orgarrizati.on has referre-d 

individuals within the geographic area; provided, 

boh'ever, that if t.l-J.e contractor or 

subcontractor has denied equal ernployrrent 

opportooity, it shall not be in compliance. 

(vi) Apprentice work hours a'1d paid classroom 

time m:iy be counh .. "JT\ which 

currently m:..~ts t.he State apprenticeship e:rual 

OpiJOrtunity require.rrerrts contained in Title 12 

NYCRR Part 600, including the folla.d.ng require."'Tents: 

(a) The ratio of minority apprentices to 

all apprentices indenturE...'




(b) Advanced statJ.d.ing or credit is granted 

by the apprenticeship program on the basis of 

previou.:;ly acg:uired ex-perience, training, skills 

or aptitude. 

(c) Individuals v.'hose age exceeds the 

established maximum age are adloyme.:nt Service that it 

has ~E~loyment opr)Qrtu:nities available atJ.d shall 

rraintain records of the org.?.nization 1 s response. 

'' 

(B) .M.aint-..ain a file of tlle nane, address and 

social security mmber of each minority a..'!d female 

worker referred from all sources, as well as a record 

of what action was tal


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(E) Disseminate the EDJ ]X)licy ex-temally by 

informing and discussing it wit:'1 all rec.ruitrrent 

sources; by advertising in news rredia, specifically 

including minority news rredia; and by notifying and 

discussing it with all sulx..-ontxactors &!d suppliers. 

Make specific recruitrrent efforts directed 

(F') 

at all minority organizations, trade schools, second: 

a.DJ schools, rninority recruitrrent organizations and 

minority training organizations, wi t.l)in tJ1e contractor's 

recruitrn:mt area. 

Continually inventorj and evaluate all 

(G) 

mi.nori ty and ferrale personnel for promo-tion opfOJ:- 

bmi. ties and encourage mi.nori ty &'ld fenule employees 

to seek such opr:ortt.rru ties. 

(H) t


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at least as frequent, and in sud1 anuunts, as for 

registered apprent.ice.s, or, where there is no 

apprentice program, consistent vlith the practice 

in t11e indus try for new entnmts • 

(D) The CX)ntractor and subcontractor shall 

atterrpt to -provide cont.inuous employm-::mt for trainees 

after the corrpletion of the contract, to enable thern 

to complete their course of, training. 

(E) The contractor and subcontractor shall 

refer, recomTend and sponsor for union rremr....ership 

any of-its trainees who can perform the duties of 

a qual.i.fied journeyman or INho have l::Jeen certifiE::.'Ci 

by t.he trair1ing pr·ograrn as having successfully 

c.nrrpleted the course of tra.ining. Such trainees 

sl1aJ.l l:::e paid full jon'l-neym:m wages and frinqe 

benefits wneilier or not union rren:bership is grant€.-d 

after such referral, recommendation or sponsorship. 

(F) Where a St.ate or State-assisted c:ontract is 

f€rforrred in the geographic area of a local governrrent 

whid1 administers an on-the-job training program 

in the building and construction trades, the contractor 

shall participate in sum program. 

5. ~1inority and FenlE!:_~e (SuL;) Contractors and Businesses. 

(A) L'Very contractor and Stat.e-assisted applica'1t 

aHar.ded a construction contract in excess of $100 1 000 

shall, w'here practical, rrake gcx:Xl faiU1 effort.s to 

ut.ilize feiTB.le and minority (sub) cxmt.ractors and 

businesses in the perforrrnnce of the contract and in the 

procuren£nt of c~nstruction and relatej materials, as 

well as ill the ancillary services required during c~nstruction. 

(B) r:Very such contractor and applicant shall 

notify the contracting agency that it has tirrely solicited 

at least those qualified minority ent




Fights, or approval of said plan is withdrawn or 

discontinued, said contractor or subcontractor 

shall be dee.m:od to be corrmitted to tf1.e affinr~:~tive 

action requi.rerrents of this section for the rernaining 

[€riod of the contract or subc"ontract. 

2. lilly contractor or subcontractor subject 

to the requirerrents of these conditions \'tho, together 

with the laL--or organization with whom .it has a collective 

bargaining agree.rrent subsequently becones a 

signatory to a negotiated plan in its gec)graphi.c 

area, either individually or through an association, 

rray thereby nt.::et its recp_1i.re.rrents under these provisions 

for any trade cow~rei by such plan if approved 

pursuant t.o Section 1: provided, however, that the 

cscc first determines that said contractor or subcontractor 

is not in violation of these provisions 

and t.hat said contractor or subcontractor, or the 

labo:c organizati.on with whom it has a co1lecti.ve 

bargaining agreerrent is not subject to a court order 

w1der 'l'i tle VII of t.'le 1964 Civil Ri.ght.s Act or under 

Article 15 of the Executive I.a.w or under any State 

or local civil rights law." 

'; 

(d) 

Lartic.ipati.ng in an approved area 

plan, as provided in section 1, the C6CC :may direct 

that the bid concH tions and/or the p:rograrr, as required. , 

therein shall app.1.y in lieu of the reguire.l!2nts of 

sulxl.ivisions (b} and (c) of this section. 

Section 5. 

Conpliance Reports 

(a) Eve.ty contractor performing a Sta·te or State-assisted 

contract shall file/ and shall cause each of its subcontractors to file, 

a conpliance report at least nonthly, in such form a..'ld containing such 

information as the OSCC rray prescribe, including the narre of any supplier 

of gocxis or services of over $10,000 who elTif:.>loys over 50 people. Said 

report shall be filed with trie State contracting agex1e:y within 10 days 

of the close of the reporting per:·iod, and a copy therE...'"Of shall be forwarded 

prorrptly by t. .. lje agency to the OSCC. 

(b) Unless exempted in accordance with J\.rt.icle V of Executive 

Order 45 (1977) , all facilities of the a;ntractor wiG~in ti1e State of 

Ne.-l York shall be included .in sud1 reports. 

- 10 - 





Section 6. 

Duties of State Agencies 

(a) State agencies shall include or cause to be .included in 

every State and State-assisted construction contract and subcontract 

hereafter entered int.o, and the bid docurrents therefor, the folla'




reports on corrpliance as the OSCC n>ay reqtlire. State contr:acting agencies 

shall be responsible for the accurac:j.t of corrpliance reports, and shall 

attest to their veracity in writing through the reside.nt engineer or other 

designated personnel. 

(g) 'Ihe OSC'C m.w assurre or reassurre jurisdiction over any m:'1tter 

referred by it, or may revoke any delegation of duties made by it, to any 

State agency if the OSCC considers it necessarj or appropriate .to the 

ad1ievenent of the purposes of Executive Order 45 (1977). 

Section 7. 

Sa;J.ctions and Re..rredies 

(a) The Com:nissioner of Hurn;.:m Rights shall direct a11d the cont.ract:.ing 

agency shall iirrp:Jse on cont:ractors and subcontractors failing 

to corrply with the contract provisions and the affirrrati ve action. requirenents 

of Executive Order 45 (1977) and these requlations, .such 

sanctior..s and rerredies as the Corrmissioner deems advisable anung those 

specified in Article VII of the order, in accordance wi tJ1 the procedures 

specified herein; provided, however, that where a State-assisted contract 

is awarded by an agency of a local governrrent to t-Jhich Section 1 hereof 

applies, the determination to impose sa.'lctions JTIE.ty, with OSCC approval, 

be n>ade by t."le local qovemme .. '1t for non-compliance w.ith its affirmative 

action pre-gram and such sanct-ions shaLl be in accordance wit.'1 said local 

affirmative action program, as set forth in the o::mtract; and further 

provided that the OSCX: shall in1.X>se the appropriate sar"ctions if the 

local govenrrrent fails to act. 

(b) Cont.ractors shall b(~ responsible for the corrpliance of 

their subcontractors regardless of tier. Failure of it.s subcontractor 

to corrply with the requirenents of Execut_ive Order 45 (1977) or these 

regulations may be grour1ds for the :im;:.)()sition of sactions and 

renedies against a contractor. Contractors and subcontractors may not 

ent.er into any contract or contract nodification with a contractor debarred 

from State and State-assis·te-10 wee.ks 

- 12 - 





to ans-wer the charges against it in writ.L'1g. During 

this r;eriod, OSCC and/or the contracting agency shall 

make reasonable efforts to secure compliance by rret.'lods 

of conference, conciliation, nediation, and persuasion. 

If at the end of said period, the OSCC continues to 

prefer said charges, a hearing ut:on such charges shall 

be held wi L'li.n seven days thereafter by a person 

desi~~lated as a hearing officer by the Commissioner 

of Human Rights in writing for that pUJ:1X)se. The 

hearing officer shall be an attorney licensed to 

practice law .in the State of New York. 'l"'he oon-tractor 

or subcontr.·actor against whom crlarges are preferred 

nay be· represented by col.ll1Sel, and rray sumrron witnesses 

in its behalf. 'Ihe burden of pro vine; non-corrpliance with 

the contract shall be on the OSCC. Conformity to 

ted""Jr,.i.cal rules of evidence shall not be rec.




(d) 'l'he procedures contained in subdivision (c) of this 

section shall apply to the imposition of sanctions against applicants 

for State assistance as provided in surxlivision 4. 3 of Art.icle IV of 

Executive Order 45 (1977). 

Section 8. 

Separability Clause 

_ If any part or provision of these regulatiqns or the 

application thereof t_o any person or circu:rrstances be adjudged .invalid 

by any court of corrpetent jurisdiction, SLlCh judgment shall be confined 

in its operation to the part, provision or application directly involved 

in the controver"9J' in which such judgment shall have been rendered arld 

shall not affect or impair th(~ validity of t'le re.rreinder hereof or the 

application ther·cof to other 1::.ersons or circumstances. 

Section 9. 

Incorporation by Reference 

These regulatiorJ.S shall be cor.sidered to be part of every contract 

and sulx..:ontract s1.1bject. to E:x:ecutive Order 45 (1977), whether or not 

they are physically .incorporah-"'




REGu.Ll{l'IONS OF THE CC1-ltvl.ISSIONFR OF 1'lffi 

STA.."'E DIVISICN OF HllH.Il21 RIGHI'S 

PUPSUA.."T\1I' TO LX.l:DJJ'IVE ORDER NO. 45 (l9Tl) 

FOR S'l'li1'F l\NC STA'Y£'-1~SISTED 

NCN-CQ"'STRUCI'ION CCX'TI'fiJCfS 





TABLE OF CONTENI'S 

Section l - Definitions. • • . . . • . • . . . • • . . • • . . • 1 

Section 2 - Cont~act Provisions. . • • . . . • . . . . . . . . . 2 

Section 3 - Corrplim1ce Reports and l

077P. 

1Y77.-07-12; Filed Transcript of Record 5-9-77- 

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REGIJLi\Ticii:..JS OF THE (:c:WUSSIONER OF THE 

S'l'ATE DIVtSION OF 1-illMAN RIGH'I'S 

PURSUANT TO EXEDJTIVE ORDER NO. 45 (1977) 

FOR STATE AND S'rATE-ASSISTED NON-C'ONSTROCTION CO!'.'I'RAL"''S 

S'an would 

L·easonab1y be expect


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(g) Hinority and female business - any firm that is owned 51 

l_:€rce;·l.t or nnre by wonBJ. or by a rrember or merrbers of a minority qroup. 

Section 2. 

Contract Provisions 

Pm::swmt to Articles III and IV of Executive Order 45 (1977) 

every State and State-assisted contract and subcontract for other than 

construction, except those referred to in sulxlivision (c) of this section, 

and the bidding doctm-e.nt.s or other solicitations of prosp2ctive cont_ractors 

therefor, \mless exerrpted under Article V of said Executive Order, 

shaJl contain sulxlivi.sions (a) and (b) hereof, as follows: 

"(a). h contractor identified as an othen11ise qualified 

lCJ\.'l bidder or prospective contractor must subrnit to the State contracting 

agency prior to the fin.:>l award of t.f-te contract, and prospective subcontractors 

prior to their approval by the agency, a written prc:>.,-varn of 

affirmative action to ensure the opportunity for equitable participation 

of minorib.J group Irerribers and warren in those activities of the contractor 

-which are subject to Executive Order 45 (1977) whidi. includes all it..s 

other non-construction contracts within the State of New York during the 

life of the State contract. No o:mtract !Tiay be awarded tmtil said progra111 

has been approvt:.'ersons and won-en at all levels of e'11- 

ploj'TtBJ.t and in all organizational units. 

A. The (sub) contractor shall rrake eve~-y gcxX:l 

faith effort to attain iT~s goals within the timetables 

prescribed a.'i.d shall institute any or all 

- 2 - 





of tl:',e follo;o:ing affirm::tti ve a.ction steps 

and any others, as may be necesSe..rvisors, 

of their resf:--'On..sibil.i ty to irnplerrent 

the eiTployer' s obligations under tl1is affirmative 

action program; 

- 3 - 





{x) rosting of tL'll2ly notices of all job open 

:Lngs listing qualifications and job duties; 

(B) 'I'he steps listed in tllis subdivision are 

illustrative only and are not intended to lirni.t 

affirnulive action tec'migues that .may be 

necessary to rrodify or expand curre.nt roHcies 

and practices. The contractor shall also elirni. 

nate any practices which are identified as 

cliscriminato1-y. 

(C) Good faith efforts to impleme.nt t~ese affinrati 

ve acd.on steps shall be evaluated during 

the perfonna.nce of t.'le contract with reference 

to the prog-ress made to overcorre a.'ly tu'lderutilization 

identified. 

3. \'mere no 1.mde.rutilizati.on appears as a result 

of the analysis undertaken pursuant to subdivision 1 of 

this paragraph, tl-te (sub) contractor agrees to m-J.intain 

at least it.s current 1evel of utilization of minority 

persons and worren in its workforce. 

4. GeJ1eraL 

(A) 'Ihe affim>tion action program shall specify 

the unions or ot.1ter errployee organizations to ·,~hich the 

{sub) contrac-tor's errplcyees belong. Up:::m request of 

the OSCC, t.l-te (sub) c-ontractor shall provide a co_r,y of 

any curre...'lt agree~rnent wi t-Jl a union or e.Jtployee association 

vJhich affects eirq?lO'.JTiEnt policieS ruJ.d practiCeS 1 

and any nav agreement as negotiated. 

(B) 'Ihe (sub) contractor shall designate a company 

official to effectuate its equal en-ployment opportunity 

ill1d affirnutive action rolicies. 

5. (A) Every contractor and State-assisted 

applicant a>varded a contract for other than construction, 

in excess of $100,000, shall, where practical, 

uti.lize minority and female businesses in the performru1ce 

of tJ1e contract and in rnaterials-su:pply contracts. 

(B) . D.lery such contractor and applicant shall 

notify the contracting agency that it has solicited 

at least those qualified Jni.nority enterprises listed 

by U1e State Department of Con-1!rerce, Office of Minority 

Business Enterprise, and by tJ1e local Regional office 

- 4 - 





of the United States Sm.."'ill Business Adm.inistration 

and shall report, in such fom as 

required by t..>1e OSCC, the results of such 

efforts." 

(c) If the contxact_or or S1Jbcontractor is subject to a'1 

affi:rrrative action program under federal or local law or regulation, 

the C6CC may approve said pro9rarn, in whole or in part, if it rreets 

at least tl:J.e minhnJm standards ccntab1ed herein. In sue~ case, the 

provisions contained in said program shall apply in lieu of the rsquirerrents 

of subdivisions (a) a"1d (b) of this section. 

Section 3. 

(a) Every contractor perfoming a State or State-assisted 

contract shall file, and shall cause each of its subcontractors to file, 

a compliance progress report quarter:ly unless required rrore fregue.'1tly 

by the OSCC, in such form and containing such infornntion as the OSCC 

may prescribe. Said rq::ort shall be filed with tt,e State contracting 

agencJ within 10 days of t..'le close of t..'1e reporting period, and a copy 

thereof shall be forwarded prorrptly by the agency to the OSCC. 

(b) Unless exempted in accordance wi t..'l Article V of Executive 

Order 45 (1977), a11 facilities of the contractor within the State of 

NEW York shall be include-d in such rer-iOrts. 

(c) Ever}' non-exeitpt contractor shall obtaill and keep on 

file for reviEW by the OSCC a separate affirrreti ve action program of 

the form and substance SJ:->ecified in subdivision (b) of section 2 hereof 

for each subcontractor doing substantial business vri th the cont.ractor. 

(d) bvery non-exerrpt contractor and subcontractor shall advise 

the OSCC of all discrbrtination-related consent decrees, court rulings , 

af.Jninist.rati ve fii·1dings and/or conciliation agreerrents pertaining to it, 

and upon request shall rrake copies thereof available to the OSCC. 

Section 4. 

(a) State agencies shall include or cause to be included in 

every State and State-assisted contract ar1d subcontract for other than 

construction hereafter entered into, and t.'le b:i.d doctw.ents therefor, 

the follrJYJing: 

L 'I'he provisions contained in subdivisions (a) through (£) 

of Section 3.1 of ~~cle III of &~ecutive Order 45 (1977); and 

2. 'Ihe pro'i.>isions contained in subdivisions (a) and (b) of 

Section 2 hereof; or, if so directed 1;\J the OSCC pursuant to Section 2 (c) , 

a reference to federal conditions in lieu thereof. 

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J. The provisions contained in Section 5 hereof; acd 

4. The provisions contained in sulxlivisions (a) through (d) 

of Section 3 hereof; and 

5. State-assisted contracts only, the provisions contained in 

subdivisions 4. 2 and 4. 3 of Article IV of Executive Order 45 (1977) . 

(b) State agencies \




or these 

regulatioru;; may be grounds for the imposition of 

sanctions and rerredies against t...l-J.e subcontractor or its contract..or. 

Contractors &'ld sur..-te State of Neh' York. The contractor or subc.'Ont.ractor 

against. •,.,rhom charges are preferred nuy be represe.nted by counsel, and may 

sumron witnesses in its behalf. The bu:cden of proving non-comp.l.iance with 

the contract shall be on the OSCC. Conform.i ty to technical D.lle.s of 

evide.'1ce shall not be required. 'Ihe hearing officer shall rrake a record 

of such hearing wtlich, with h.is or her findings concenung the charges, 

a...'J.d his or her recorrrrendation if cmy concellling sanction.s, shall promptly 

be referred to the Comnissioner for review cmd decision. 

2. Failure of the contractor or subcontractor to rreet its 

goals shall shift to it t.'1e requirerrent to shod tlut it has instituted 

at least the affirmti ve action steps contained in Section 2 hereof and 

that it has made every gcod faith effort t.l-J.ereby to ae:'-lieve corrplicmce 

wit.h t...iJ.e affin!l3.tive action requi.rerrents of the contract and the prCX:;Tarn. 

3. It shall be no excuse for the failure of a contractor or 

subcontractor to rreet its affirrr'ative action obligations that the u1lion 

with which it has a collective bargaining agree..rrent providing for exclusive 

referral or other ag~~c..y or organization utilized for job referrals, 

failed to refer minority enployees. D.iscritni.nation in referral for e.rrr 

ployrrent, even if pursuant to prov.ision.s of a collective bargaining 

agreB'Tent is proh.ibitf .. 'Cl by law. It is State policy that err[.Jloyers have 

a respJnsibility to provide equal enplojm?..nt opportunity if they wish to 

participate in public cont:.racts. To the extent they have delegated the 

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responsibility for some of L~eir ~nployroent practices to a labor orgar~ 

ization or other agency and, as a result, are preve-nted from meeting their 

obligations pursuant to Executive Order 45 (1977), such enplO}'ers cannot be 

considered to be :in conplia'!ce. 

4. P1urrptly after receiving the report of the hearing officer, 

the Com:nissioner shall issue findings and direct t.he it

Attachment 23 NYSAG Lefkowitz to Lasker- present Proposed Governers Executive Order Certified 2017-07-25 doc 12 et seq

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