AN ACT CONCERNING PROCEDURES FOR THE HEARING OF COMPLAINTS AGAINST STATE CONTRACTORS AND SUBCONTRACTORS BY THE COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES AND THE DOCUMENTATION OF NONDISCRIMINATION POLICIES ADOPTED BY STATE CONTRACTORS.

This bill establishes a separate process for the Commission on Human Rights and Opportunities (CHRO) to hear and remedy complaints against contractors and subcontractors for noncompliance with state antidiscrimination laws; mandatory antidiscrimination provisions in state and certain political subdivision contracts, and the set-aside law. It does so by allowing CHRO to bring a matter to a public hearing based on its monitoring and compliance process instead of also going through its normal complaint process.

The bill appears to eliminate certain procedural requirements concerning complaints filed by CHRO against state agencies concerning affirmative action plans required by law.

If after the hearing, the presiding hearing officer finds noncompliance, the bill authorizes the officer, instead of CHRO, to impose certain penalties and take other actions. It also eliminates certain automatic sanctions and instead gives the presiding officer discretion to impose them.

The bill authorizes the chief human rights referee, instead of CHRO's executive director or designee, to appoint a hearing officer or human rights referee to hear complaints against contractors and subcontractors filed by CHRO under the bill.

The bill requires that before entering into the contract with the state or any political subdivision other than a municipality, the contractor must provide documentation to support the nondiscrimination agreement and warranty the law requires for such contracts. The documentation must be a company or corporate policy adopted by resolution of the contractor's board of directors, shareholders, managers, members, or other governing body (see BACKGROUND). The bill specifies that “contract” includes any extension or modification of the contract, and “contractor” includes any successors or assigns of the contractor.

*Senate Amendment “A” eliminates a provision in the bill that gives individuals the right to file, and CHRO jurisdiction to investigate, complaints of violations of (1) the set-aside law for small contractors and minority businesses, and (2) laws requiring the filing and approval of affirmative action plans and compliance reports concerning public works contactors. Also the amendment specifies what “contract” and “contractor” includes. Finally, it gives CHRO the right to hear and remedy complaints concerning the set-aside program.

EFFECTIVE DATE: July 1, 2007, except for the provisions dealing with documentation of company or corporate policy, which are effective upon passage.

The bill authorizes CHRO to issue a discrimination complaint against a contractor or subcontractor if it determines through its monitoring and compliance process, instead of through its complaint process, that a contractor or subcontractor has not complied with antidiscrimination laws and contract provisions. Under the normal complaint process, CHRO assigns it to an investigator who must follow normal CHRO procedures and deadlines for investigating a complaint and if, after the investigation, the investigator finds reason to believe that a violation has occurred, to attempt to eliminate it, and if that fails, to certify it to a pubic hearing. The bill instead authorizes CHRO, based on its monitoring and compliance process, to schedule a public hearing within 20 days after notice of the complaint before a hearing officer or a human rights referee appointed to act as a presiding hearing officer.

Under existing law, if CHRO determines through its complaint procedure that a contractor or subcontractor is not complying with antidiscrimination statutes or contract antidiscrimination provisions, (1) the state retains 2% of the total contract price per month on any existing contract and (2) the contractor is prohibited from participating in any further contracts with state agencies until two years from the date of the finding of noncompliance or CHRO determines that the contractor has adopted policies consistent with these antidiscrimination statutes.

1. eliminates the mandatory 2% monthly retention requirement and authorizes the presiding hearing officer to order retainage,

2. eliminates the mandatory debarment and authorizes the presiding officer to bar the contractor from future contracts for two years or until the officer determines compliance, and

3. authorizes the presiding officer instead of CHRO to make the compliance determination.

By law, unchanged by the bill, the compliance determination must be made within 45 days of the noncompliance determination.

The bill transfers from CHRO to the presiding hearing officers CHRO's current authority to:

1. publish, or cause to be published, the names of contractors or unions found in noncompliance;

2. notify the attorney general when there is a substantial or material violation or the threat of such a violation of the contractual provisions on antidiscrimination laws;

3. recommend to the Equal Employment Opportunity Commission or the Department of Justice that appropriate proceedings be instituted under Title VII of the Civil Rights Act of 1964, when necessary;

4. ask prosecutors to bring criminal actions against contractors who give false information to any contracting agency or to CHRO, as the case may be; or

5. order the contracting agency not to enter another contract or extend or modify an existing contract with any noncomplying contractor until the contractor has satisfied CHRO that it has established and will implement personnel and employment policies in compliance with state antidiscrimination laws.

The bill also authorizes the presiding officer to order the contractor to bring itself into compliance with antidiscrimination statutes or contract provisions required by state law within 30 days or, for good cause shown, within an additional 30 days. If the contractor fails to bring itself into compliance within that time period and the noncompliance is substantial or material, or there is a pattern of noncompliance, the presiding officer must recommend to the contracting agency that it declare the contractor to be in breach of the contract and pursue all available remedies.

By law, CHRO may issue a complaint if (1) a state agency, department, board, or commission fails to submit an affirmative action plan required by law, or (2) the affirmative action plan violates state law. Under current law, such a complaint apparently must follow certain procedures. This bill eliminates the explicit requirement that these procedures be followed but does not explicitly establish any new procedures.

1. serving the complaint on the agency within 20 days after the filing it together with a notice (a) identifying the alleged discriminatory practice, and (b) advising of the procedural rights and obligations; and

2. time frames for filing an answer, investigating the complaint, and beginning the hearing.

The law requires the head of each state agency and political subdivision of the state other than a municipality annually to set aside for award to small contractors, on the basis of competitive bidding procedures, at least 25% of the total value of all contracts or portions of contracts for the construction, reconstruction, or rehabilitation of public buildings, the construction and maintenance of highways, and the purchase of goods and services. At least 25% of the total value of all set-aside contracts must be reserved for awards to minority business enterprises.

The awarding authority must require that a contractor or subcontractor awarded a contract perform not less than 15% of the work with the contractor's own workforce. It may require that a contractor furnish the certain documentation including:

1. a copy of its organizational documents,

2. a copy of its or its subcontractors' federal income tax returns for the previous year, and

3. evidence of payment of fair market value for the purchase or lease of property or equipment from another contractor who is not eligible for set-aside contracts.

The law authorizes the awarding authority or the administrative services or CHRO commissioner to audit the financial, corporate, and business records of any small contractor or minority business enterprise that applies for or is awarded a set-aside contract and investigate to determine eligibility or compliance with the set-aside law (CGS § 4a-60g).

The law requires each contractor with at least 50 employees awarded a public works contract between $ 50,000 and $ 500,000 in any fiscal year, to develop and file with CHRO an affirmative action plan that complies with CHRO regulations. Failure to do so bars bidding on or the award of future contracts until the requirement is met. When CHRO approves an affirmative action plan, it must issue a certificate of compliance to the contractor. This certificate is prima facie proof of the contractor's eligibility to bid or be awarded contracts for a two years from the date of the certificate. A certificate does not excuse the contractor from CHRO monitoring or from reporting and record-keeping requirements imposed by law. CHRO may revoke the certificate if the contractor does not implement its affirmative action plan in compliance with applicable state law (CGS § 46a-68c).

Every successful bidder for a public works contract to construct, reconstruct, alter, remodel, repair, or demolish of any state public building that is estimated to cost more than $ 500,000, except certain specified contracts awarded by the commissioner of public works, must, before the contract is awarded, file and have approved by CHRO an affirmative action plan. CHRO may conditionally accept an affirmative action plan if the contractor gives written assurances that it will amend its plan to conform to affirmative action requirements. The state must withhold 2% of the total contract price per month from any payment made to such a contractor until it has developed an affirmative action plan, and received CHRO approval.

CHRO must review affirmative action plans submitted within 60 days of receipt and either approve, approve with conditions, or reject them. When CHRO approves a plan, it must issue a certificate of compliance to the contractor (CGS § 46a-89d).

Each contractor must file, and cause each of his subcontractors to file, compliance reports with CHRO. These must contain whatever information about the contractor's or subcontractor's employment policies, programs, and statistics and be in whatever form CHRO prescribes (CGS § 46a-68e).

Whenever the contractor or subcontractor has a collective bargaining agreement or other contract or understanding with a labor union or an agency referring workers or providing or supervising apprenticeship or training for such workers, the law requires that the compliance reports include information pertaining to the labor union's or agency's practices and policies affecting compliance (CGS § 46a-68f).

Nondiscrimination and Affirmative Action Provisions in Contracts of the State and Political Subdivisions Other than Municipalities

The law requires that every contract to which the state or any political subdivision other than a municipality is a party must contain provisions that the contractor agrees:

1. that in the performance of the contract it will not discriminate or permit discrimination in any manner prohibited by state or federal law;

2. to take affirmative action to insure that applicants with job-related qualifications are employed and that employees are not discriminated against;

3. in all solicitations or advertisements for employees placed by or on its behalf to state that it is an “affirmative action-equal opportunity employer” in accordance with CHRO regulations;

4. to provide each labor union or representative of workers with which it has a collective bargaining agreement or other contract or understanding and each vendor with which it has a contract or understanding, a notice to be provided by CHRO or the vendor advising the labor union workers' representative, of the contractor's commitments, and to post copies of the notice in conspicuous places available to employees and to applicants;

5. to comply with certain anti-discrimination and affirmative action laws, and CHRO regulations and orders;

6. to provide CHRO with whatever information it requests and permit access to pertinent books, records, and accounts concerning its employment practices and procedures; and

7. if the contract is a public works contract, that it will make good faith efforts to employ minority business enterprises as subcontractors and suppliers of materials on such public works project (CGS §§ 4a-60 and 4a-60a).

When a CHRO investigator finds “reasonable cause” and is unable to eliminate the discrimination by conference or conciliation, the investigator certifies the complaint to the Office of Public Hearings. Typically, the certification of the complaint occurs about one year after the original complaint is filed.

By law, a hearing conference must be held within 45 days following the certification of the complaint. At the hearing conference, the presiding human rights referee assigns a settlement conference date, as well as dates for production of documents, exchange of witness and exhibit lists, a pre-hearing conference, and public hearing trial dates.

A respondent is required to file an answer to the complaint within 15 days of receiving the notice of public hearing. If the complaint is amended, an answer must also be filed to the amended complaint. Failure to file an answer may result in an order of default by the presiding human rights referee.

All cases have at least one settlement conference. The settlement conference is conducted by a human rights referee other than the one who will preside at the public hearing. The settlement referee meets with the parties and their attorneys and reviews the factual and legal issues with them in an attempt to reach a settlement.

If the parties are unable to settle the case, it proceeds to a public hearing. At the close of evidence, the presiding human rights referee may permit the filing of briefs. A written decision is issued within 90 days of the close of evidence or the filing of briefs, whichever is later.