[HISTORY: Adopted by the City Council of the City of East Orange 2-22-1982 by Ord. No. 7-1982. Amendments noted where applicable.]
Administrative organization — See Ch. 5.
Project labor agreement — See Ch. 8A.
Personnel policies — See Ch. 60.
Purchasing and contracting — See Ch. 68.
Editor's Note: This ordinance also repealed former Ch. 8, Affirmative Action Program, adopted 5-29-1979 by Ord. No. 24-1979.
It is the public policy of the City of East Orange to provide equal employment and business opportunity for all persons, partnerships, companies and corporations and to prohibit discrimination in employment and business practices because of race, color, religion, sex, ancestry or national origin, and to promote the full realization of equal employment and business opportunity through a positive and continuing program within each department, division, agency or component of the City of East Orange. This policy of equal employment and business opportunity shall apply to every contractor, subcontractor or bidder holding or seeking a public contract with the City of East Orange. It also is intended to provide minority businesses in the City of East Orange equal opportunity to participate in the filling of the City of East Orange's nonbid purchase orders up to the legal nonbid limit of $17,500. The policy of equal employment opportunity applies to every aspect of municipal employment policy and practice.
As used in this chapter, the following terms shall have the meanings indicated:
- ADVANCED TRAINEE
- A worker who has experience and skills used in construction work, but lacks the skills to be qualified as a journeyman and is classified by the Review Council or a subcommittee thereof as an "advanced trainee."
- BASIC TRAINEE
- An applicant for employment who does not possess the qualification for entrance into an apprenticeship program, but demonstrates an interest in pursuing a craft in the construction industry and is classified by the Review Council or a subcommittee thereof as a "basic trainee."
- Any person, partnership, corporation, association or joint venture who has submitted prescribed bid documents to the City of East Orange seeking award of a public contract.
- CITY OF EAST ORANGE
- The City of East Orange, a municipal corporation.
- CITY OF EAST ORANGE PROJECTS
- Construction approved by the City Council and the Mayor, be it construction on tax-abated projects or any construction within the City receiving state, federal or city funds.
- CONSTRUCTION CONTRACT
- Any public contract for the construction, rehabilitation, alteration, conversion, extension or repair of buildings, sidewalks, grounds, parking lots, or other improvements to real property.
- Includes any person, partnership, corporation, association or joint venture seeking to be awarded a City of East Orange contract, and includes every subcontractor under such contract.
- DEPARTMENT HEAD
- An individual who is the head of any department, division, agency or component of the City of East Orange.
- DIRECTOR OF FINANCE
- A public officer of a state or municipal corporation charged with City duties in relation to the fiscal affairs of the same. His principal duties are to examine and audit collections of the public money, to complete records and report the financial situation from time to time.
- Distinguishing, differentiating, separating on the basis of race, color, religion, sex, ancestry or national origin.
- Shall not include any individual employed by his parents, spouse or child, or in the domestic service of any person.
- Any black, Spanish surname, Oriental, American Indian and woman.
- Any public contract let for construction or purchase of material without the taking of bids in accordance with law.
- OFF-SITE TRAINING SOURCE
- A public, private or nonprofit corporation which supplies off-site training to minority individuals who are receiving on-site training pursuant to the various affirmative action programs in Essex County.
- Includes one or more individuals, partnerships, associations, organizations, corporations, labor organizations, legal representatives and other organized groups of persons.
- PROJECT SITE REPORT
- The statistical minority/nonminority man-hour utilization in the trade classifications of the contractor and subcontractors.
- PUBLIC CONTRACT
- Any contract awarded by the City of East Orange for work, labor, services, supplies, equipment, materials or any combination of the foregoing.
- REVIEW COUNCIL
- The Affirmative Action Review Council as constituted under this chapter.
- Includes any person, partnership, corporation, association or joint venture which supplies any of the work, labor, services, supplies, equipment, materials or any combination of the foregoing under a contract with the contractor.
The head of each department and agency in the City of East Orange shall establish and maintain a positive program of equal employment opportunity for all employees and applicants for employment within his/her jurisdiction in accordance with the policy set forth in § 8-1.
There shall be and there is hereby established the position of Compliance Officer with all personnel deemed necessary to effectively implement the purpose of this chapter. The Compliance Office shall serve as Review Council staff. The Compliance Officer shall be appointed by the Mayor and confirmed by the City Council for a term coterminous with the office of Mayor. The Compliance Officer shall work under the direction of the Mayor and shall administer the City's Affirmative Action Ordinance; establish procedures to effectuate the ordinance; convene the Review Council, which shall conduct hearings relative to violations of the ordinance; and recommend to the Review Council determinations as to compliance with said ordinance. He/she shall have at his/her disposal the resources of the City's several departments and other independent agencies which may be under contract with the City. The Compliance Officer must be consulted in the review and evaluation of any contracts or documents submitted by bidders before the award of any contract is made.
There is hereby created an Affirmative Action Review Council. The Affirmative Action Review Council is to consist of not less than nine members, who shall be appointed by the Mayor and confirmed by the City Council. Members of the Review Council shall serve a two-year term without pay or other financial compensation. Those appointed shall include representatives from the following groups: the community at large; construction trade unions; building contractors; City officials and the City Compliance Officer. The majority of the members of the Review Council shall be members of minority groups as defined herein.
The Review Council may be consulted by the City Council in the evaluation of documents submitted by bidders before the award of any contract for the purpose of determining whether the bidder has met the requirements of these conditions ("responsive"/"nonresponsive").
The Compliance Office/Review Council will receive referrals of journeymen, trainees and laborers, primarily from the East Orange Manpower Project and other agencies, and shall determine the qualifications and classify persons as journeymen, advanced trainees and basic trainees for the purpose of applying the provisions herein. Individuals shall be determined qualified for employment as journeymen, advanced trainees and basic trainees, solely on the basis of experience, on-the-job evaluation and performance examination.
The Review Council will evaluate the contractor's performance as to minority utilization, seek good faith compliance and, as necessary, initiate proceedings independently or upon recommendation by the Compliance Officer. Proceedings to secure good faith compliance shall be as prescribed per § 8-18.
The Review Council shall periodically report to the City Council and make such recommendations through its Council liaison as it deems necessary, including recommendations with reference to bids.
The Review Council shall have such other duties in addition to those described herein.
The City shall submit to all contractors and subcontractors a copy of this Affirmative Action Ordinance and shall make this chapter part of the project specifications in all contracts in excess of $17,500. It shall be required that when submitting a bid the contractor must certify that he will comply with this chapter. Before the award of any subcontract or approval of any subcontract being let by the contractor, said contractor will be required to submit such statements of compliance for each potential subcontractor and union statements from the union which have collective bargaining agreements with each subcontractor as required by § 8-8 herein. If no such statement is obtained, the contractor must submit documentation of his/her efforts to obtain such statements whether they involve the unions that he/she has contracts with or the unions having relationships with the potential subcontractor.
The following language shall be used in construction contracts:
The contractor or subcontractor, where applicable, will not discriminate against any employee or applicant for employment because of age, race, creed, color, national origin, ancestry, marital status or sex. The contractor will take affirmative action to ensure that minority applicants are recruited and employed and that employees are treated during employment without regard to their age, race, creed, color, national origin, ancestry, marital status or sex. Such action shall include but not be limited to the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The contractor agrees to post in conspicuous places available to employees and applicants for employment notices, to be provided by the Public Agency Compliance Officer, setting forth provisions of this nondiscrimination clause.
The contractor or subcontractor, where applicable, shall in all solicitations or advertisements for employees placed by or on behalf of the contractor state that all qualified applicants will receive consideration for employment without regard to age, race, creed, color, national origin, ancestry, marital status or sex.
The contractor or subcontractor, where applicable, shall send to each labor union or representative of workers with which it has a collective bargaining agreement or other contract or understanding a notice, to be provided by the Public Agency Compliance Officer, advising the labor union or workers' representative of the contractor's commitments under this act and shall post copies of the notice in conspicuous places available to employees and applicants for employment.
In all advertisements or solicitations of construction contract bids, the following language shall be used: "Bidders are required to comply with the requirements of P.L. 1975, c. 127."
On construction contracts of $2,500,000 or more, 1/2 of 1% of the total construction cost shall be set aside for minority outreach and training. If there are no compliance problems, this money need not be used and may be reallocated as determined by the Compliance Officer/Review Council. None of these funds, however, may be used to pay the salaries of trainees. The funds should be for outreach, referrals and training of minorities. Also, if this funding requirement threatens the feasibility of a project, the New Jersey State Affirmative Action Office may waive some or all of this one-half-percent funding requirement.
All public contracts hereinafter entered into by the City of East Orange shall incorporate an equal employment opportunity clause, which shall read as follows:
The contractor in hiring for each job shall provide maximum opportunities for employment in all phases of the construction to persons who reside in the City of East Orange. In addition, the contractor in hiring for each job shall make every effort to employ persons residing within the geographical jurisdiction of the appropriate union in order to ensure that persons employed on the project will be brought permanently into the construction industry labor force in the area.
The contractor shall not discriminate against employees and applicants for employment on the grounds of union membership, race, color, religion, sex or national origin.
The contractor must make a good faith effort to meet the goal of minority journeymen utilization in the performance of his/her contract, whether or not the work is subcontracted.
The goals of this Affirmative Action Program in the trades listed below shall be within the following ranges:
The contractor will make every good faith effort to reach a goal of 50% minority group apprentices on the job in each trade listed in this section in which apprentices are employed and shall hold each of his/her subcontractors to this requirement.
The contractor will cooperate with the Compliance Officer in providing on-site training for persons employed on the construction site and will provide on-site opportunities to basic, advanced trainees and laborers referred to him/her by the Compliance Office. Each trainee will be excused from work one day each week in order to receive off-site training. The Review Council may retain outside training service for the purpose of supplying off-site training to minority trainees referred to in this chapter. The Review Council is also empowered to approve equivalent training programs from any sources. The total cost of the on- and off-site training program, including fringe benefits, will be paid by the contractor.
The contractor shall not be required to employ more trainees than the number permissible under the apprentices-to-journeymen employment ratio specified in the applicable collective bargaining agreement, the established ratio in the trade, or by industry usage in the area, provided that no ratio requiring the employment of more than five journeymen for each apprentice shall be applicable where the employment of minority group apprentices and trainees is necessary in order to permit the contractor to meet obligations under these conditions.
Criteria for measuring good faith:
The contractor will consider, for employment as journeymen, basic trainees and advanced trainees, laborers and persons referred to him/her primarily by the East Orange Manpower Project, and secondarily the Minority Group Journeymen Referral Service, who have been classified by the Review Council. If the contractor does not employ any person so referred, he/she shall submit a written explanation by the close of the day to the City Compliance Officer.
Nothing contained in this chapter shall preclude the contractor from complying with the hiring hall or apprenticeship provisions in any applicable collective bargaining agreement or hiring hall arrangement, and where required by custom or agreement, he/she shall send journeymen, trainees and laborers to the union for referral, or to the apprenticeship program for admission, pursuant to such agreement or arrangement. However, where the practices of a union or apprenticeship program will result in the exclusion of minority persons or the failure to refer minority group persons, as such that the contractor will be unable to meet his obligations under this chapter, the contractor shall consider for employment or apprenticeship persons referred under this paragraph without regard to such agreement or arrangement. Where required by custom or agreement, the contractor shall send referrals from the Review Council to the union registrar for referral or to the apprenticeship program for admission, pursuant to such agreement or arrangement. The unions will, however, have no right of rejection over the Review Council referrals.
The contractor will notify the City Compliance Officer and the Review Council whenever he/she has reason to believe that a union with which he/she has a hiring hall or referral arrangement or an apprenticeship program engages in such referral, membership, admission, or other practices as will substantially impede the contractor in his/her efforts to meet his/her affirmative action obligations under these conditions.
A contractor shall not be deemed to have exercised good faith under this chapter solely because of union opposition, even if the unions threaten a work stoppage because of the implementation of this chapter. It shall be incumbent upon the contractor as employer to see to it that referrals under this chapter are treated fairly by the unions and their members.
The contractors shall develop and submit a manning table. This document shall identify estimated manpower requirements for the duration of the job, broken down by trade and month. The manning of the job shall be related to this document, which shall be brought up-to-date as required, but not less than once monthly.
The contractor shall submit copies of his/her collective bargaining agreements covering workers to be employed on the project, and copies of such bargaining agreements of each subcontractor.
The contractor shall, in all solicitations or advertisements for employees placed by or on behalf of the contractor, state that all applicants will receive consideration for employment without regard to race, union membership, color, marital status, age, religion, sex, ancestry or national origin.
The contractor shall send to each labor union or representative of workers with which he/she has a collective bargaining agreement or other contract or understanding a notice advising the labor union or workers' representative of the contractor's commitments under the Equal Employment Opportunity Ordinance of the City of East Orange and shall post copies of the notice in conspicuous places available to employees and applicants for employment and shall comply with § 8-12 with respect to union statement.
It shall be no excuse for noncompliance that the union with which the contractor has a collective bargaining agreement providing for exclusive referral failed to refer minority employees.
The prime contractor and subcontractor shall furnish all information and reports required by the Affirmative Action Review Council and shall keep and maintain records for trainees so that separate payroll amounts and descriptions of payments, trainee progress, together with all benefits, are recorded separately and shall permit inspection of his/her books and records for purpose of investigation to ascertain compliance with the program.
The contractor shall take such action with respect to any subcontractor as the City may direct as a means of enforcing the provisions of this chapter, including penalties and sanctions for noncompliance.
The contractor shall designate a principal officer of his/her firm to be the Affirmative Action Officer who shall be responsible for administering the Affirmative Action Program detailed herein. This Officer shall meet regularly, or as may be required, with all contractors, the Review Council and the City to ensure attainment of the goals set forth herein and the implementation of the training program.
The City shall require that, when the contractor or subcontractor has a referral agreement or arrangements with a union covering workers to be employed on this project, the contractor shall submit with his/her bid a statement, signed by an authorized union official, in which the union agrees as follows:
The union will take such action as may be necessary with respect to the referral and the employment of minority group persons in order to enable the contractor to meet his obligations under this chapter.
The union will cooperate with the Review Council in providing on-site training on the construction site.
Minority group journeymen, and if necessary laborers, employed by the contractor shall be admitted to union membership within the time limits contained in the applicable collective bargaining agreements, union constitutions and bylaws.
The contractor or subcontractor shall promptly notify the Review Council of any failure of the union to comply with its statement. If a union has refused to sign the statements described above, the contractor will document his/her efforts to obtain such statement, including a description with the reason given by the union for not signing such statement, and submit such documentation together with his/her bid. A bid shall be unresponsive if unaccompanied either by an acceptable union statement or by documentation as to why such statement could not be obtained.
In addition, the award of a subcontract will not be approved if such contractor has not submitted such an acceptable union statement or an explanation of the failure to obtain such a statement.
The failure of the union to sign the statement described above does not excuse the contractor from his obligation to comply with the conditions and provisions of the Affirmative Action Program set forth herein.
The City shall require that each prime contractor is responsible for the performance of his/her subcontractors for the implementation of the aforementioned equal employment requirements during the performance of the contract. Whenever the contractor subcontracts a portion of the work under contract, the subcontract shall bind the subcontractor to the obligations contained in this chapter to the full extent as if he/she were the contractor. Furthermore, the contractor must include a provision in all contracts with subcontracts to ensure compliance with all other conditions included herein, as well as with the New Jersey Executive Order No. 21, and N.J.S.A. 10:2-1 et seq., and the President's Executive Order 11246 (30 F.R. 12319-25), and New Jersey P.L. 1975, c. 127.
Following receipt and review of the Affirmative Action Plan and the employment information submitted by the bidders, and prior to award of a contract, the apparent lowest responsible bidder shall be required to attend a pre-award conference called by the appropriate department head. At the conference, the Compliance Officer shall reveal whether or not the apparent lowest responsible bidder has complied with the policy of this chapter set out in its various sections and shall report findings and recommendations of the Review Council.
Where a construction contract exists, project site reports in a form defined by the Affirmative Action Office shall be completed and submitted by the contractor at intervals determined by the Compliance Office. The Compliance Officer or designee shall conduct such periodic on-site reviews as are deemed necessary. Such project site reports shall include such information as to the employment practices and minority/nonminority utilization statistics of the contractor and each subcontractor and shall be in such form as the Compliance Office may prescribe. Subcontractors shall complete and submit such project site reports to the contractor for transmittal to the Compliance Officer. The Compliance Officer or his designee shall be allowed to attend all project meetings and, with notice and during normal business hours, enter the contractor's or subcontractor's business facility for determining whether the contractor or subcontractor is complying with the Affirmative Action Ordinance Program.
In the event that specific discriminatory practices are found to exist in the administration and enforcement of this chapter, in addition to the sanctions that may be imposed as provided by the terms of the contract, the Compliance Officer shall forward all pertinent information to appropriate federal, state and local agencies.
The commitments required of the contractor hereunder are for the purpose of satisfying his affirmative action obligations under this chapter and are not intended, and shall not be used, to discriminate on the basis of race, sex, color, age, marital status or national origin against any qualified applicant or employee.
In the event of failure by a contractor to meet his minority manpower commitments under this chapter, he/she shall be given an opportunity to demonstrate that he has made every good faith effort to meet his commitments. In any proceeding in which such good faith is an issue, all of the actions of the contractor in seeking to comply with this chapter shall be reviewed and evaluated by the Review Council. Compliance with this chapter shall be monitored by the Compliance Officer of the City of East Orange in consultation with the Review Council of the City of East Orange.
The Compliance Officer will issue a written alert notice to a contractor and appropriate unions whenever, in his opinion, a breach of this chapter appears to be developing. Such notice shall require that deficiencies be corrected within 72 hours.
If the alert notice is not removed by a correction of the deficiencies within 72 hours, the Compliance Officer shall follow up the alert notice by issuing a written violation notice. Upon issuance of such notice, the contractor will have four working days to remove the violation. If the violation has not been removed within that period, the Compliance Officer will inform the City Council, Mayor and Review Council.
Either or both notices may be removed if the contractor meets his/her obligations under this chapter or if he/she presents a satisfactory explanation in writing as to why such compliance is unpractical or impossible.
Failure to satisfactorily remove a violation shall cause a hearing to be held by the Review Council. If a determination by the Review Council is made that the contractor is not in compliance with this chapter, there shall result a recommendation of sanctions by the Review Council to the City Council and the Mayor. Such sanctions may include any or all of the following:
The withholding of contract payments.
The termination or suspension of the contract.
Assessment of damages caused by noncompliance, actual or liquidated. Liquidated damages shall be assessed by the City on behalf of the minority individual injured by the noncompliance of the contractor or subcontractor. It shall be assessed at a rate of $500 per individual plus the full amount of back pay due to the individual from the date of referral. This shall not be deemed to exclude any other damages which the individual can demonstrate as a result of the noncompliance.
Enforcement by the City of its right under its contracts with contractors and subcontractors, either by suit at law or in equity or arbitration, whichever is appropriate.
Commencement of an action at law or in equity or proceeding in arbitration by the City as third-party beneficiary. Further, the noncomplying contractor shall indemnify the City for any damages it may be found liable for as the result of actions brought by other contractors or subcontractors on the project or any other third party because of the imposition of the above sanctions.
The City of East Orange agrees to implement procurement and service contract regulations as set forth in P.L. 1975, c. 127, and as such will work in conjunction with the State Affirmative Action Office in order to ensure compliance.
It is the policy of the federal government to encourage meaningful employment of minority business enterprises in construction and capital contracts as evidenced by the contract for the Central Avenue Semi-Mall as funded through the Economic Development Administration and the Passaic Valley Sewerage Commission contract funded by the Environmental Protection Agency, the latter contract requiring that at least 22% of the total dollar value of the contract be subcontracted to minority business enterprises.
It is the policy of the City of East Orange to promote meaningful utilization of minority business enterprises in construction and capital contracts awarded East Orange, and such contracts must include a requirement that at least 25% of the total dollar value of the contract be performed by minority business enterprises. Each bidder must submit with its bid the name of the minority subcontractor and the dollar amount of the subcontract.
This chapter shall be amended from time to time in order to carry out the intentions of the City Council. The City Council from time to time may amend this chapter by resolution in the area of construction, procurement, service purchasing and personnel practices.
[Added 11-16-1984 by Ord. No. 50-1984]
Any contract awarded by the City of East Orange on a project assisted under a program providing direct federal financial assistance from the Department of Housing and Urban Development and subject to the requirements of Section 3 of the Housing and Urban Development Act of 1968, as amended, 12 U.S.C. § 1701u, shall contain the following provisions:
The contractor hereunder will comply with Section 3 of the Housing and Urban Development Act of 1968, as amended, 12 U.S.C. § 1701u, which provides that, to the greatest extent feasible, opportunities for training and employment be given to lower-income residents of the project area and contracts for work in connection with the project be awarded to business concerns which are located in or owned in substantial part by persons residing in the area of the project.
The parties to this contract will comply with the provisions of said Section 3 and the regulations issued pursuant thereto by the Secretary of Housing and Urban Development set forth in 24 CFR 135, and all applicable rules and orders of the Department issued thereunder, prior to the execution of this contract. The parties to this contract shall certify and agree that they are under no contractual or other disability which would prevent them from complying with these requirements.
The contractor will send to each labor organization or representative of workers with which he has a collective bargaining agreement or other contract or understanding, if any, a notice advising said labor organization or workers' representative of his commitments under this Section 3 clause and shall post copies of the notice in conspicuous places available to employees and applicants for employment or training.
The contractor will include this Section 3 clause in every subcontract for work in connection with the project and will, at the direction of the applicant for or recipient of federal financial assistance, take appropriate action pursuant to the subcontract upon a finding that the subcontractor is in violation of regulations issued by the Secretary of Housing and Urban Development 24 CFR 135. The contractor will not subcontract with any subcontractor where it has notice or knowledge that the latter has been found in violation of regulations under 24 CFR 135 and will not let any subcontract unless the subcontractor has first provided it with a preliminary statement of ability to comply with the requirements of these regulations.
Compliance with the provisions of Section 3, the regulations set forth in 24 CFR 135 and all applicable rules and orders of the Department issued thereunder prior to the execution of the contract shall be a condition of the federal financial assistance provided to the project, binding upon the applicant or recipient for such assistance, its successors and assigns. Failure to fulfill these requirements shall subject the applicant or recipient, its contractors and subcontractors, its successors and assigns to those sanctions specified by the grant or loan agreement or contract through which federal assistance is provided and to such sanctions as are specified by 24 CFR 135.
Failure to comply with the aforementioned provisions may also result in rescission of this contract or withholding of revenue due and owing hereunder upon written notice of noncompliance and until such time compliance is found to be satisfactory by the City of East Orange Affirmative Action Compliance Officer.
None of the provisions found hereinabove shall relieve the contractor of any obligations he may have under the Affirmative Action Program of the City of East Orange.