This is not a trivial point. E.O. #50 provides for the Department of Labor Services to have access to all of your "books, records and accounts" to ascertain compliance. And the DLS can hurt you bad if you are not in compliance. It can not only void your contract, withhold payment for work you've already done, and "reduce the Contract payments by a percentage equal to that designated as the business enterprise goal percentage," but also physically enter your premises and "impose an employment program" (50.65B[iv]). But do not feel your rights are unprotected. The DLS can impose these sanctions only "after a hearing, held pursuant to the rules of the DLS."
The "employment program," by the way, may include sentencing your workers to "participation by minority, female and handicapped employees in career days, job fairs, youth motivation programs, and related activities in their communities." I'm sure they'll love that. But they've no choice. Among the crimes that can bring the wrath of the DLS down upon you is that your "minorities, women, handicapped, or older employees are excluded from or are not participating in company-sponsored activities or programs." (Emphasis added.) Your non-minorities, however, apparently can skip the company picnic with impunity.
The climax of the document is the contractor's agreement "to include the provisions of the foregoing paragraphs in every subcontract or purchase order to which it becomes a party...so that the provisions will be binding upon each Contractor or vendor." An interesting example of infinite recursion. The "foregoing paragraphs" include their own inclusion--so all subordinate contractors and vendors are required to include them in their subcontracts and purchase orders, ad infinitum. Clearly the intent is to infect the entire commercial community.
The dénouement is a promise to "refrain from entering into any contract...with a subcontractor who is not in compliance with the requirements of E.O. #50 and the rules and regulations promulgated thereunder." It's not clear how, exactly, one is supposed to know who is and who is not in compliance with the "requirements of E.O. #50" etc. Yet any failure to comply with any part of the agreement is a "material breach," subject to the punishments described above.
The second document in the exhibit is the customer's "EEO/ Payroll Package," which, we are informed, has helpfully "been prepared to assist each contractor/subcontractor in meeting all Equal Opportunity/Affirmative Action requirements for this project." Item I reiterates the 17 percent MBE/WBE goal and instructs the contractor on the proper, appropriately complex procedure for undertaking "documented efforts" to meet the goal. Item II, "Minority and Female Workforce Participation Goals," requires compliance with "the Federal goals for the construction industry" (included later) and reiterates the "participation goals" for the various construction trades. It is interesting to note that while operating engineers are required to be 46.52 percent minority and 9.26 female, cement masons, required to be 37.73 percent minority, have to be just 0.00 percent female. Is this a misprint? Who is protecting the oppressed female cement masons? Class action, anybody?
Item III reiterates the requirement for compliance with E.O. #50 and requires "attendance at all meetings requested by the monitoring agency, the Division of Labor Services." Items IV through VII delineate the differences in reporting requirements between contracts over and under $1 million and companies over and under 100 employees. When contracts and companies grow past a certain size, the reporting requirements increase exponentially. Even Forrest Gump (a Protected Person under the Americans with Disabilities Act) would recognize the importance of keeping all contracts under $1 million and all companies under 100 employees. "Smaller is better" apparently is now public policy.
Items VII through XVII (there are two Items VII) describe the forms, certificates, documents, reports, letters, and statements required to document compliance. Item XVIII, "Sexual Harassment Fact Sheet," says, "Each contractor must include this fact sheet in all subcontracts." Another virus: Each subcontractor must include it in all of his subcontracts and purchase orders, and require those subcontractors and vendors to include it in theirs. The fact sheet offers examples of sexual harassment that not even your most imaginative subcontractors can have thought of.
The next document is the Mayor's Executive Order #50 itself (29 pages of tiny, single-spaced type), so you can't claim you haven't seen it. Next is the city's required "Construction Employment Report" (seven pages), of which perhaps the most interesting part is a chart breaking down the work force "for each trade currently employed by your company" into various categories segregated by sex, including white (non-Hispanic), black (non-Hispanic), Hispanic, Asian, and Native American. These charts must be filled out for journey-level workers, apprentices, helpers, and trainees. In our case, we must fill out 12 charts, covering all four levels of workers in each of our three trades, and submit them monthly. The contractor must also attach to these reports "All Collective Bargaining Agreements, Employment Application [sic], EEO Policy Statement and your most recent EEO-1 Report." Somebody up there sure loves paper.
What puzzles me is why these charts are restricted to race and sex. Why don't they include religion, age, marital status, sexual orientation, affectional preference, etc.? How else can I prove my innocence? But I'm sure we'll get around to that. The precedents are there.
Next are the "Less Than One Hundred (100) Employees Certificate" and the "Less Than $1,000,000 Subcontract Certificate," each bearing a legend to the effect that any incorrect data "may result in criminal prosecution."
Then we have the "Boilerplate for Equal Employment Opportunity Statement," a resounding personal affirmation by the company's CEO (me!) stating that "we will take specific action to ensure that applicants are employed and that employees are treated during employment, without regard to their race, creed, color, national origin, sex, age, disability, marital status, sexual orientation or citizenship status..." (clearly a lie, given the rest of the documents) and announcing that "[Name] has been appointed Director of our equal employment opportunity programs and will report directly to me on the results of such program [sic]." Interesting here is the implied admission of guilt. "[Name]'s responsibilities include...assisting in the identification of problem areas" and "assisting line management in arriving at solutions to problems." The possibility that there are no problems is assumed away.
A small but far-reaching statement: "To ensure adherence to this policy, performance evaluations for supervisory personnel shall include ratings on their equal employment opportunity efforts and results." Some companies actually take this seriously. "Sorry, Sally. Your team invented a better mousetrap and added $15 million to our bottom line. But they were the wrong color, so it doesn't count."
"Additionally," the boilerplate section continues, "in furtherance of our equal employment opportunity commitment [Contractor name] shall insist [emphasis added] that labor unions and other recruiting sources actively recruit and refer members of all protected groups for all positions, incorporate non-discriminatory provisions in all its contracts and purchase orders [yet another virus] and include the EEO logo, slogan or statement in all solicitations or advertisements for employees."
How, I wonder, is my insistence to be measured? Is it worth a dollar an hour for all employees? Ten dollars an hour? Because in labor negotiations, every insistence has a price.
The next document is the "Contractor's Affirmative Action Plan," containing a chart called "Summary of Bid Activity with MBE and WBE Subcontractors/Vendors" that requires a listing of "all unsuccessful M/WBE subcontractors/vendors" by name, trade/item, date and amount of bid, date of elimination, and reason for elimination. Below the chart, above the notary seal, is a space for "Additional explanation of elimination: Include meetings held for negotiation, etc. (Use additional sheet if necessary)." I can easily imagine that any of the ordinary reasons for turning down a vendor or subcontractor--bad reputation, inability to perform work, criminality--might be considered to have a racist component and thereby seal one's doom.
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