Drafter
Clerk 03/12/2010
Title
AN ORDINANCE prohibiting discrimination in employment by contractors, subcontractors or vendors; amending Ordinance 11992, Section 3, and K.C.C. 12.16.010, Ordinance 11992, Section 3, and K.C.C. 12.16.020, Ordinance 11992, Section 4, and K.C.C. 12.16.025, Ordinance 11992, Section 6, and K.C.C. 12.16.040, Ordinance 11992, Section 7, and K.C.C. 12.16.050, Ordinance 11992, Section 8, and K.C.C. 12.16.060, Ordinance 11992, Section 9, and K.C.C. 12.16.070, Ordinance 11992, Section 10, and K.C.C. 12.16.080, Ordinance 11992, Section 11, and K.C.C. 12.16.090, Ordinance 11992, Section 12, and K.C.C. 12.16.100, Ordinance 11992, Section 13, as amended, and K.C.C. 12.16.115, Ordinance 10849, Section 19, and K.C.C. 12.16.125, Ordinance 12787, Section 1, and K.C.C. 12.16.150, Ordinance 12787, Section 2, and K.C.C. 12.16.155, Ordinance 13313, Section 2, and K.C.C. 12.16.156, Ordinance 13313, Section 4, and K.C.C. 12.16.157, Ordinance 13313, Section 5, and K.C.C. 12.16.160, Ordinance 12787, Section 3, and K.C.C. 12.16.165 and Ordinance 12787, Section 5, and K.C.C. 12.16.170 and repealing Ordinance 11992, Section 5, and K.C.C. 12.16.030.
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SECTION 1. Ordinance 11992, Section 3, and K.C.C. 12.16.010 are each hereby amended to read as follows:
((All words shall have their ordinary and usual meanings except those defined in this section, which shall have in addition, the meaning set forth below. In the event of conflict, the specific definition spelled out below shall presumptively, but not conclusively, prevail.)) The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
A. "Administrator" means the manager of ((the minority and women's business enterprises and contract compliance division)) the office of strategic planning and performance management, business relations and economic development section.
B. (("Affidavit and Certificate of Compliance" means a notarized statement sworn under oath provided by a contractor pursuant to this chapter.))
C. "Affirmative action" means policies, procedures and programs designed to increase the representation of and remedy the results of past discrimination against minorities, women, and persons with disabilities in employment, applications for employment, and employment-related training programs (of minorities, women and persons with disabilities).))
D.)) "Contract ((A))awarding ((A))authority" means any person with the power to enter into a contractual arrangement binding the county and means the particular office, agency or division on whose behalf the contract is ((entered)) executed. In addition, ((this term)) "contract awarding authority" includes, but is not limited to, the county executive, heads of county departments ((, divisions)) or offices and as delegated, division directors.
((E.)) C. "Contractor" means any person, firm, business, organization, company, partnership, corporation or other legal entity, excluding real property lessors and lessees((,)) and government agencies, contracting to do business with the county including, but not limited to, public work contractors, consultant contractors, providers of professional services, service agencies, vendors, and suppliers selling or furnishing materials, equipment((,)) or goods or services((, but not including governmental agencies)).
((F.)) D. "Disability" means ((any physical or mental impairment which substantially limits one or more major life activities.)) the presence of a sensory, mental or physical impairment that is medically cognizable or diagnosable; or exists as a record or history; or is perceived to exist whether or not it exists in fact. A disability exists whether it is temporary or permanent, common or uncommon, mitigated or unmitigated, or whether or not it limits the ability to work generally or work at a particular job or whether or not it limits any other activity within the scope of this chapter.
E. "Disability access laws" means all laws requiring that county services, programs and activities be accessible by people with disabilities including Title II of the Americans with Disabilities Act, Title II of the Telecommunications Act of 1934, as amended, and Section 504 of the Rehabilitation Act of 1973, as amended.
((G.)) F. "Discrimination" means differential treatment of or pursuit of policies or practices that have a disproportionate impact upon persons due to their ((creed, religion, race, color, sex, age, marital status, sexual orientation, national origin or the presence of any sensory, mental or physical disability, unless such policies or practices are necessary for the performance of the job and no less discriminatory alternatives are possible)) sex, race, color, marital status, national origin, religious affiliation, disability, sexual orientation, gender identity or expression or age except by minimum age and retirement provisions, unless based upon a bona fide occupational qualification.
G. "Discriminate" means an action, other than an action taken in accordance with lawful equal employment opportunity efforts, or failure to act, whether by itself or as part of a practice, the effect of which is to adversely affect or differentiate between or among individuals or groups of individuals, by reasons of sex, race, color, marital status, national origin, religious affiliation, disability, sexual orientation, gender identity or expression or age except by minimum age and retirement provisions, unless based upon a bona fide occupational qualification.
I. "Equal employment opportunity" means the availability of employment and advancement of all people based on merit, capability, and potential, and without regard to an individual's sex, race, color, marital status, national origin, religious affiliation, disability, sexual orientation, gender identity or expression or age except by minimum age and retirement provisions, unless based upon a bona fide occupational qualification. "Equal employment opportunity" includes the following components: recruitment, application processing, hiring, job placement, compensation, promotion, transfer, termination and work assignment.
J. "Equal employment opportunity efforts" means active efforts to ensure equal opportunity in employment that is free from all forms of discrimination.
K. "Equal opportunity" means a system of practices under which individuals are not excluded from any opportunity or benefits because of their sex, race, color, marital status, national origin, religious affiliation, disability, sexual orientation, gender identity or expression or age except by minimum age and retirement provisions, unless based upon a bona fide occupational qualification.
L. "Minority" or "((M))minorities" means a person who is a citizen of the United States and who is a member of one or more of the following historically disadvantaged racial groups:
1. Black or African American: Having origins in any of the Black racial groups of Africa;
2. Hispanic: ((Of)) Mexican, Puerto Rican, Cuban, ((or)) Central ((or)) American, South American or of other Spanish or Portuguese culture or origin, regardless of race;
3. Asian American: Having origins in any of the original peoples of the Far East, Southeast Asia, the Indian subcontinent ((,)) or the Pacific Islands; or
4. American Indian or Alaskan Native: Having origins in any of the original peoples of North America.
((J. "New hire" means a person hired for the first time by a contractor.
K.)) M. "Permanent ((employees" or "Permanent)) workforce" means those persons employed by a bidder, proposer or contractor for at least six continuous months immediately prior to the bid or proposal opening or the award of a contract by the county, and who are currently employed by the bidder, proposer or contractor.
((L. "Qualified disabled person" means a person with a disability who, with reasonable accommodation, can perform the essential functions of the job in question.
M.)) N. "Reasonable accommodation" means steps taken to modify facilities used by employees or to modify a particular job component which enables an otherwise qualified person with a disability to perform the essential functions of the job.
((N. "Rehire" means a person who worked for the contractor and was rehired. This person had not worked for the contractor for six continuous months prior to the award of the contract.))
O. "Sexual orientation" means male or female heterosexuality, bisexuality, or homosexuality, and includes a person's attitudes, preferences, beliefs and practices pertaining to sex.
P. "Underrepresentation" means presence in a contractor's work force of minorities, women, and persons with disabilities in a particular job category in proportionate numbers ((lower)) less than ((the goals established for the contractor's business under this chapter)) their representation in the county's labor market area.
((Q. "Section 504 shall mean Section 504 of the Rehabilitation Act of 1973 as amended which states that, "No otherwise qualified handicapped individual in the United States shall, solely by reason of his handicap be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance."))
SECTION 2. Ordinance 11992, Section 3, and K.C.C. 12.16.020 are each hereby amended to read as follows:
No contractor, subcontractor((,)) or union doing business with the county or a county contractor, who furnishes workers or services in connection therewith, shall discriminate against any person on the basis of ((race, color, creed, religion, sex, age, nationality, marital status, sexual orientation, or the presence of any sensory, mental or physical disability in an otherwise qualified disabled person in employment,)) sex, race, color, marital status, national origin, religious affiliation, disability, sexual orientation, gender identity or expression or age except by minimum age and retirement provisions, unless based upon a bona fide occupational qualification, and no such contractor, subcontractor((,)) or union shall violate any of the terms of ((RCW C))chapter 49.60 RCW, Title VII of the Civil Rights Act of 1964, or any other applicable federal, state or local law or regulation regarding nondiscrimination in employment. ((These provisions ((shall)) apply to all contractors, subcontractors ((,)) or unions doing business with or furnishing workers or services to the county, except other governments.))
In addition to the general prohibition against discrimination stated in ((Section)) K.C.C. 12.16.020 ((of this chapter)), ((the following additional nondiscrimination provisions relating to employment of persons with disabilities shall apply to)) all contractors, subcontractors ((,)) or unions doing business with or furnishing workers or services to the county ((, except other governments)):
A. ((Reasonable accommodation. Contractors s)) Shall make reasonable accommodation to the known physical or mental limitations of an otherwise qualified disabled applicant or employee unless the contractor can demonstrate that the accommodation would impair or cause undue hardship on the operation of the contractor(('s)), subcontractor or unions' business((.)); and
B. ((Pre-employment inquiries. A contractor may)) Shall not conduct a ((pre-employment)) preemployment medical examination or make a ((pre-employment)) preemployment inquiry ((as to)) about whether an applicant ((is a disabled person or as to the nature or severity of)) has a disability. A contractor, subcontractor or union doing business with or furnishing workers or services to the county may ((, however,)) make a ((pre-employment)) preemployment inquiry ((into)) about an applicant's ability to perform job-related functions. Nothing in this section shall prohibit a contractor, subcontractor or union doing business with or furnishing workers or services to the county from conditioning an offer of employment on the results of a medical examination prior to initiation of the employment, if all entering employees are ((subjected)) subject to such an examination regardless of disability.
The evaluation of a contractor's compliance with this chapter shall be based upon the contractor's effort to implement ((achieve maximum results)) equal employment opportunity policies to achieve a diverse workforce ((from its affirmative action measures)). The contractor shall document these efforts and shall implement ((affirmative action steps)) equal opportunity efforts at least as extensive as the following:
A. ((POLICY DISSEMINATION.)) Disseminate ((internally and externally)) the contractor's equal employment opportunity policy internally and externally; post nondiscrimination policies and requirements of this chapter ((on bulletin boards)) in locations that are clearly visible to all employees; notify each subcontractor, labor union or representative of workers with which there is a collective bargaining agreement or other contract, subcontract((,)) or understanding, of the contractor's commitments under this chapter; include the equal opportunity policy in ((advertising in the news)) advertisements and other media ((and elsewhere)); discuss equal employment opportunities and ((affirmative action)) policies with new employees during employment orientation; discuss ((the)) equal employment opportunity policies with managers and ((supervisory personnel)) supervisors and their roles and responsibilities in ((the implementation of)) implementing the ((measures))efforts required under this chapter((.));
B. ((RECRUITING.)) Adopt and implement recruitment procedures ((designed)) to ((increase the representation of women, minorities and persons with disabilities)) achieve equal employment opportunity and diversity in the pool of applicants for employment; ((including, but not limited to, establishing and maintaining a current list of minority, female and disabled recruitment sources, providing these sources written notification of employment opportunities and advertising vacant positions in newspapers and periodicals which have minority, female and/or disabled readership.))
SELF-ASSESSMENT AND TEST VALIDATION.)) Review all employment policies and procedures, including tests, recruitment, hiring and training practices and policies, performance evaluations, seniority policies and practices, job classifications and job assignments, to ((assure)) ensure that they do not ((discriminate against or have a discriminatory impact on, minorities, women and persons with disabilities)) discriminate against any person, and validate all tests and other selection requirements where there is an obligation to do so under state or federal law((.));
D. ((RECORD OF REFERRALS.)) Maintain a current file of applications of ((minority, women, and)) all persons ((with disabilities)) who are applicants or referrals for employment indicating ((what)) the actions that were ((was)) taken with respect to each ((such)) individual and the reasons ((therefore.)) for the actions; and ((C))contact these ((people)) persons when a((n opening)) job vacancy exists for which ((they)) these individuals may be qualified. Names may be removed from the file after twelve months ((have elapsed)) from the date of ((their)) the last application or referral ((.));
E. ((NOTICE TO UNIONS. Provide notice to labor unions of the contractor's nondiscrimination and equal employment opportunity obligations pursuant to this chapter. Contractors shall also notify the executive if labor unions fail to comply with the nondiscrimination or equal employment opportunity efforts provisions.
F. SUPERVISORS. Ensure that all supervisory personnel understand and are directed to adhere to and implement the nondiscrimination and affirmative action obligations of the contractor under this chapter. Such direction shall include, but not be limited to, adherence to, and achievement of, affirmative action policies in performance appraisals of supervisory personnel.
G. EMPLOYEE TRAINING. When reasonable, develop on-the-job training opportunities which expressly include minorities, women, and persons with disabilities and sponsor and/or utilize, training/educational opportunities for the advancement of women, minorities and persons with disabilities employed by the contractor, subject to acceptance by the county.
H. RESPONSIBLE PERSON.)) Designate an employee who shall have the responsibility for implementation of the contractor's ((affirmative action measures)) equal employment opportunity efforts.
((I. PROGRESS REPORTING. Prepare as part of the affirmative action plan an analysis and report on the progress made toward eliminating the underrepresentation of women, minorities and persons with disabilities in the contractor's workforce on an annual basis.
J. CONTRACTOR TRAINING. In addition, contractors who do not meet employment goals for women, minorities and persons with disabilities and who do not have approved affirmative action measures may be required to attend county-sponsored training programs on relevant areas of affirmative action and equal employment opportunity.)) SECTION 6. Ordinance 11992, Section 7, and K.C.C. 12.16.050 are each hereby amended to read as follows:
A. ((CONTRACT PROVISIONS.)) The county's policy, as stated in this chapter, requiring nondiscrimination in contractor ((or)) and subcontractor employment and ((affirmative action)) equal employment opportunity shall be included in all county contracts, except real property sale and lease((s,)) transactions and government agency contracts. The requirement of compliance with disability access laws shall be included in all applicable county contracts. A((ny violation of the specific provisions of this chapter and of any term of the affidavit and certificate of compliance required herein, including reporting requirements, shall be deemed a violation of this chapter. Any such)) violation of this chapter shall be ((further)) deemed a breach of a material provision of the contract between the county and the contractor. Such a breach shall be grounds for cancellation, termination((,)) or suspension, in whole or in part, of the contract by the county, or for invoking the enforcement provisions of this chapter providing for penalties, liquidated damages((,)) or other remedies, and may result in ineligibility for ((further)) county contracts((; provided, that underrepresentation of minorities, women and persons with disabilities and the failure or inability of any contractor to achieve employment goals will not be a violation where that contractor has adopted and pursued a reasonable equal employment opportunity measures in compliance with this chapter)). The burden is on the contractor to demonstrate its compliance with this chapter.
B. ((Specifications)) Invitations to bid and requests for proposals for all county contracts, except real property leases, may require the bidder or proposer to ((sign and submit an affidavit and certificate of compliance)) comply specifically ((setting forth a plan of affirmative action)) with equal employment opportunity efforts to ((be followed)) follow in the event a contract is awarded to the bidder or proposer. Such ((plan)) efforts shall ensure ((equal opportunity in employment is afforded by the contractor and its subcontractors while performing the contract for the county)) the contractor and its subcontractors while performing the contract for the county affords equal opportunity in employment.
C. ((The plan of affirmative action contained in such affidavit and certificate of compliance shall include, but need not be limited to the following provisions:
1. Designation of a person who has been charged by the bidder or proposer with the responsibility for carrying out and reporting the bidder's or proposer's compliance with its plan of affirmative action;
2. Assurance that the plan of affirmative action will be communicated to supervisors and other employees of the bidder or proposer;
3. Assurance that the bidder's or proposer's new hires and rehires will include minorities, women and persons with disabilities;
4. Assurance that the bidder or proposer will proceed in good faith and make every reasonable effort to comply with the employment goals established in this chapter and provided in the specifications;
5. Assurance that the bidder or proposer shall correct deficiencies of under-represented persons at all levels of the workforce by considering under-represented persons to fill new hire or rehire positions;
6. Assurance that the bidder or proposer will make continuing efforts to recruit minorities, women and persons with disabilities and to advertise employment opportunities in a way which will effectively reach minorities, women and persons with disabilities; and
7. Assurance that the bidder or proposer will communicate to subcontractors and labor unions its affirmative action obligations
D.)) Whenever the administrator determines that a contractor's ((affidavit and certificate of compliance is in)) obligations under this chapter need ((of)) review or updating, the administrator shall notify the contractor, who shall then take such steps as are necessary to review or update its ((affidavit and certificate of compliance to meet the requirements of the county)) equal employment opportunity policies and practices to meet county requirements.
E.)) D. ((In addition to submitting an affidavit and certificate of compliance, a))A bidder ((or proposer)) may also be required, ((either before or)) after award of a contract, to submit permanent workforce information ((personnel inventory reports and such other documentation)) including, but not limited to, the total number of employees for all business locations, a personnel inventory by job category and other such data as may be determined by the administrator.
((F.)) E. ((In addition to all other submittal requirements under this chapter, c))Contractors performing under construction contracts shall submit monthly employment reports on such forms and by methods, including electronic submission, as may be established by the administrator((, which)). The reports shall include information sufficient to demonstrate the extent to which the contractor has complied with ((the requirements of)) this chapter.
((G.)) F. Neither the provisions of any collective bargaining agreement ((,)) nor the failure by a union with whom the contractor has a collective bargaining agreement ((to refer minorities, women or persons with disabilities,)) shall excuse the contractor's obligation under ((the affidavit and certificate of compliance)) this chapter.
((H.)) G. The following provisions shall be included in contracts awarded by the county, except as provided otherwise in this chapter:
1. During performance of ((this)) the contract, the contractor agrees that it will not discriminate against any employee or applicant for employment because of ((religion, color, race, sex, sexual orientation, age, national origin, or the presence of any sensory, mental or physical disability, nor tolerate harassment based on any of these categories)) the employee or applicant's sex, race, color, marital status, national origin, religious affiliation, disability, sexual orientation, gender identity or expression or age except by minimum age and retirement provisions, unless based upon a bona fide occupational qualification. The contractor will take ((affirmative action)) equal employment opportunity efforts to ensure that applicants and employees are treated, without regard to their ((creed, color, race, religion, sex, sexual orientation, age, national origin, or the presence of such disability)) sex, race, color, marital status, national origin, religious affiliation, disability, sexual orientation, gender identity or expression or age. ((Such affirmative action)) The equal employment opportunity efforts 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 apprenticeships. The contractor agrees to post in conspicuous places available to employees and applicants for employment notices setting forth ((the provisions of)) this nondiscrimination clause ((.));
2. ((The contractor will, prior to the commencement and during the term of this contract, furnish the county, upon request and on such forms as may be provided by the county, a report of the affirmative action taken by the contractor in implementing the terms of this provision, and will)) The contractor shall permit access by the administrator to the contractor's records of employment, employment advertisements, application forms, other pertinent data and records related to the contract for the purpose of monitoring, audit and investigation to determine compliance with this chapter((.)); and
3. The contractor ((will)) shall implement and carry out the obligations ((contained)) in ((its affidavit and certificate of compliance regarding)) this chapter and the contract regarding equal employment opportunity. The county shall consider the ((F))failure to implement and carry out such obligations in good faith ((may be considered by the county)) as a material breach of ((this)) the contract and grounds for withholding payment and/or termination of the contract and dismissal of the contractor.
I. All contracts and agreements with the county, under which a contractor provides a service, program or activity to the general public or under which a contractor provides a service, program or activity directly to county employees on behalf of the county as the employer shall include the following provisions:
1. The contractor agrees to provide to persons with disabilities access to programs, activities and services provided under the contract or agreement, as required by the disability access laws; and
2. The contractor shall not discriminate against persons with disabilities in providing the work under the contract. In any subcontracts for the programs, activities and services under their contract or agreement with the county, the contractor shall include the requirement that the subcontractor provide to persons with disabilities access to programs, activities and services provided under the contract or agreement, as required by the disability access laws, that the subcontractor shall not discriminate against persons with disabilities in providing the work under the contract and that the subcontractor shall provide that the county is a third party beneficiary to that required provision.
SECTION 7. Ordinance 11992, Section 8, and K.C.C. 12.16.060 are each hereby amended to read as follows:
The administrator may require that prior to being awarded a county contract; contractors must first be determined eligible by the administrator as having complied with the provisions of this chapter. The county shall not enter into a contract with nor receive goods and/or services from a contractor that has not been determined eligible as required by this chapter.))
A. ((WORK FORCE DATA.)) All public works contractors entering into contracts or agreements with the county ((valued at twenty-five thousand dollars or more)), with an estimated value in excess of the dollar threshold for formal solicitation and advertisement, in accordance with K.C.C. 4.16.090 and 4.16.155, shall submit to the contract awarding authority ((a personnel inventory report providing)) upon the authority's request, and in a format and using such methods, as may be provided by the county, employment data for ((minorities, women and persons with disabilities, except for public works contractors. Public works contractors shall submit to the contract awarding authority a personnel inventory report when entering into contracts or agreements valued at over ten thousand dollars. This requirement shall also apply to contractors who accumulate contracts, which total twenty-five thousand dollars or more in a given calendar year. The administrator may determine the form in which this data shall be provided)) its workforce.
B. ((COMPLIANCE AFFIDAVITS AND UNION STATEMENTS. All contractors, except public works contractors, entering into contracts with the county of more than twenty-five thousand dollars, or which in the aggregate result in yearly sales to the county of more than twenty-five thousand dollars, shall submit an affidavit of compliance, in the form provided by the county, demonstrating their commitment to comply with the provisions of this chapter, and shall further submit a signed statement of compliance from a union or employee referral agency. Public works contractors entering into contracts of ten thousand dollars or more shall submit an affidavit of compliance and a statement from a union or employee referral agency. The contractor shall abide by all the terms and conditions set forth in the affidavit. The affidavit of compliance shall state the reporting requirements for each contractor, the requirements of subcontractors, the employment goals for minorities, women and persons with disabilities, minimum affirmative action measures, reporting requirements and other such provisions as the administrator deems necessary and appropriate for compliance with and enforcement of this chapter; provided, that in lieu of the affidavit, the administrator may accept a statement pledging adherence to existing contractor affirmative action measures where the provisions of these measures are found by the administrator to substantially fulfill the requirements of this chapter.)) The reporting requirements for each contractor and its subcontractors and any other such provisions as the administrator deems necessary and appropriate for compliance with and enforcement of this chapter, shall be included in all county contracts, except real property sale and lease transactions and government agency contracts.
C. ((VENDORS, YEARLY RENEWALS. Vendors who became qualified under subsections A. and B. of this section shall remain so qualified for two years after the date on which they were qualified and shall be entitled to bid and be considered for the sale of materials, supplies and equipment at any time during that period without requalification.
During such time as a vendor remains continuously qualified under this chapter to do business with the county, the affidavit of compliance initially submitted to gain qualification shall be deemed to be effective and in force without further renewal or resubmission. Should qualification lapse or be terminated at any time due to a change of ownership in the business or to a failure to submit an updated employment profile or upon a finding of violation of this chapter, the county having previously complied with notice of hearing provisions, a new affidavit of compliance and employment profile shall be required prior to vendor's being requalified.
D. SELF EVALUATION, CORRECTIVE ACTION PLAN AND ASSURANCE OF COMPLIANCE. In order to comply with Section 504 of the federal Rehabilitation Act of 1973, as amended, all contractors entering into contracts with the county, except those for the direct purchase of goods shall complete and maintain in their office a Section 504 self evaluation and corrective action plan. These plans are to be used by the contractor to review program, facility, and employment access by persons with disabilities and to determine what kind of corrective action may be needed. An assurance of compliance contained in the corrective action plan, must be signed, notarized and returned to the administrator before the contract will be signed by the county.
Contractors who believe that taking corrective action will cause an undue administrative or financial burden may complete and submit an accessibility waiver request form to the administrator. The administrator will approve or disapprove the request, and notify the contractor in writing regarding the decision. The administrator shall be responsible for devising and promulgating criteria to be used in determining whether ((or not)) to grant a request for waiver from the requirement to complete and maintain a Section 504 self-evaluation and corrective action plan.)) Invitations to bid and requests for proposals for all county contracts and agreements in which a contractor will provide a service, program or activity to the general public, or in which a contractor will provide a service, program or activity directly to King County employees on behalf of the county as the employer shall require the bidder or proposer to provide to persons with disabilities access to services, programs and activities provided under the contact or agreement as required by the disability access laws.
SECTION 8. Ordinance 11992, Section 9, and K.C.C. 12.16.070 are each hereby amended to read as follows:
((Contractors required to submit affidavits and certificates of compliance shall also submit statements from unions or employee referral agencies, as applicable, on forms provided by the administrator. The statement shall be in writing, signed by the authorized officers or agents of a))All labor unions or agencies ((referring)) that refer workers or employees or ((providing)) provide or ((supervising)) supervise apprenticeship or other training programs from whom the contractor obtains employees ((. The statement shall affirm that the signer(s)'s organization has no practices and policies which discriminate on the basis of race, color, creed, religion, sex, age, sexual orientation, marital status, the presence of any physical, mental or sensory disability, or national origin, that the signer(s)'s organization will affirmatively cooperate in the implementation of the policies and provisions of this chapter, and that the organization consents and agrees that recruitment, employment, and the terms and conditions of employment under all contracts with the county shall be in accordance with the purposes and provisions of this chapter)) must comply with this chapter, which requires the organization have no discriminatory practices or policies based on sex, race, color, marital status, national origin, religious affiliation, disability, sexual orientation, gender identity or expression or age except by minimum age and retirement provisions, unless based upon a bona fide occupational qualification.
For all public work contracts, ((prime)) the county shall require contractors ((shall be required)) to submit reports ((to the county affidavits and certificates of compliance, reports and statements from unions or employee referral agencies)) from their subcontractors in the same manner and method as ((these are)) required of the ((prime)) contractor. For these contracts, the reporting requirements that apply to the ((prime)) contractor during the contract period ((will)) apply equally to all subcontractors. ((As a condition of their contract, prime c))Contractors shall be responsible for ensuring that their subcontractors ((make affirmative efforts to meet the same employment goals)) adhere to the same equal employment opportunity requirements that apply to the ((prime)) contractors. The county shall deem ((A))any violation of this chapter ((or the requirements of the affidavit and certificate of compliance)) by ((the)) a subcontractor ((will be deemed)) a violation by the ((prime)) contractor and will subject the ((prime)) contractor to the sanctions and penalties ((set forth out)) in the contract and in this chapter.
The administrator shall monitor compliance with this chapter and shall conduct such investigations as may be necessary to determine compliance on the part of any contractor, firm or organization with ((the requirements of)) this chapter. ((It shall be the duty of e))Each contract awarding authority ((to assure)) shall ensure that contractors are notified of their obligations ((hereunder)) under this chapter. The administrator shall ((have the direct responsibility and authority to insure that contractors are properly monitored and that each county department is in full compliance with provisions of this chapter.)) ensure that each contract awarding authority properly monitors contractors in compliance with this chapter.
A. The executive, through the administrator, shall have the responsibility for monitoring and auditing implementation of the requirements of this chapter and shall have the power to request from all county departments and offices, responding parties, and/or contractors any relevant records, information and documents. The administrator shall have access to all county records related to compliance with this chapter. ((Departments)) County contract awarding authorities shall provide full cooperation to the administrator in the implementation of this chapter and shall promptly submit records, information and documents upon request of the administrator.
B. County contract awarding authorities shall keep complete and detailed records regarding compliance with this chapter. The administrator shall devise and promulgate to all county departments uniform standards for the keeping of complete and detailed records as required by this chapter.
C. The contractor ((will)) shall, upon request, furnish all information and reports as reasonably required by the administrator to determine compliance with this chapter, ((and the affidavit and certificate of compliance,)) and ((will)) shall permit access to its books, records and accounts for purposes of investigation to ascertain compliance with the nondiscrimination and ((affirmative action)) equal employment opportunity requirements of this chapter. ((Unless otherwise required by law, a))All information, data or records obtained pursuant to the monitoring and investigation activities authorized under this chapter shall be kept confidential by the county to the extent allowed by law, except that the county may release such information when requested to do so in cooperation with state and federal agencies administering and enforcing state and federal laws against discrimination.
SECTION 12. Ordinance 11992, Section 13, as amended, and K.C.C. 12.16.115 are each hereby amended to read as follows:
A. Where a complaint alleging a violation of this chapter has been filed by any individual or entity, including a contract awarding authority, within six months of the completion of all work on a contract alleging a violation of this chapter by a contractor or where, within that same time period, evidence of a violation is discovered from information gained through compliance monitoring or auditing, the administrator shall cause to be served or mailed, by certified mail, return receipt requested, a copy of the complaint or notice of investigation on the respondent within twenty days after the filing of said charge and shall promptly make an investigation thereof. If ((the investigation is conducted by)) a party selected by the administrator conducts the investigation, the costs of such an investigation shall be borne by the department or project, as applicable, for which the contract was awarded. The investigation shall be directed to ascertain the facts concerning the violation alleged in the complaint and shall be conducted in an objective and impartial manner. During such an investigation, the administrator shall consider any statement of position or evidence with respect to the allegations of the complaint which the complainant or the respondent wishes to submit.
1. The administrator shall have the authority to sign and issue subpoenas requiring the attendance and testimony of witnesses, the production of evidence including but not limited to books, records, correspondence or documents in the possession or under the control of the person or entity subpoenaed, and access to evidence for the purpose of examination and copying as is necessary for the investigation. The administrator shall consult with the prosecuting attorney before issuing any subpoena under this section.
If an individual or entity fails to obey a subpoena issued hereunder, or obeys a subpoena but refuses to testify when requested concerning any matter under investigation, the administrator may seek the assistance of the county prosecuting attorney by requesting that the prosecuting attorney petition the superior court for King County for an order or other appropriate action necessary to secure enforcement of the subpoena.
2. The results of the investigation shall be reduced to written findings of fact and a finding shall be made that there either is or is not reasonable cause for believing that a violation has been or is being committed. If a finding is made that there is no reasonable cause, said finding shall be served on the complainant and respondent. Within thirty days after service of such negative finding, the complainant shall have the right to file a written request with the administrator asking for reconsideration of the finding. The administrator shall respond to such request in writing within a reasonable time by granting or denying the request and specifying the reasons for either granting or denying the request.
B. If the finding is made initially or on request for reconsideration that reasonable cause exists to believe that a violation by a contractor ((or)) subcontractor has occurred, the administrator shall endeavor to remedy the violation by conference, conciliation and persuasion, which may, by agreement of the parties, include monetary compensation, the creation of additional opportunities for ((minorities, women or persons with disabilities to be employed)) the employment of persons on other contracts, or such other requirements as may lawfully be agreed upon by the parties and the administrator. Any settlement agreement shall be reduced to writing and signed by both parties. An order shall then be entered by the administrator setting forth the terms of the agreement. Copies of such an order shall be delivered to all affected parties and the original thereof recorded with the records and licensing services division.
If no agreement can be reached, a finding to that effect shall be made by the administrator and incorporated in a preliminary order, with a copy thereof furnished to the complainant and respondent. The preliminary order shall also include:
1. A finding that a violation has occurred; and
2. The basis for such a finding.
C. In the case of failure to reach an agreement for the elimination of such a violation, and upon the entry of a preliminary order, the complaint and any and all findings made and remedies ordered shall be certified by the administrator to the office of the county hearing examiner for hearing.
A hearing shall thereafter be conducted by the office of the hearing examiner for the purpose of affirming, denying((,)) or modifying the preliminary order. The hearing shall be conducted on the record and the hearing examiner shall have such rule making and other powers necessary for conduct of the hearing as are specified by K.C.C. 20.24.170. Such hearings shall be conducted within a reasonable time after receipt of the certification. Written notice of the time and place of the hearing shall be given at least ten days prior to the date of the hearing to each affected party and to the administrator.
Each party shall have the following rights, among others:
1. To call and examine witnesses on any matter relevant to the issues of the complaint;
2. To introduce documentary and physical evidence;
3. To cross-examine opposing witnesses on any matter relevant to the issues of the complaint;
4. To impeach any witness regardless of which party first called such witness to testify;
5. To rebut evidence presented against a party; and
6. To self-representation or to be represented by anyone of a party's choice who is lawfully permitted to do so.
D. Following review of the evidence submitted, the hearing examiner presiding at the hearing shall enter written findings and conclusions, shall render a written decision and shall order one or more of the following:
1. Dismissal of the complaint when a violation is found not to have occurred;
2. ((Suspension or c))Cancellation of the contract in part or in whole;
3. Disqualification ((and/or debarment)) of the violator from participation in county contracts for a period of up to five years;
4. Exclusion of the violator from future county contracts or vending until demonstration of compliance; and
5. Enforcement of any provision of the contract providing remedies, such as penalties or liquidated damages for violation of contractual provisions or enforcement of any other remedy available under the laws of the county. Upon a finding by the hearing examiner that a contractor has in fact failed to abide by the provisions of this chapter, liquidated damages ((not to exceed the entire contract amount)) shall be imposed unless the hearing examiner finds that the imposition of such damages would be clearly inequitable, in which case the hearing examiner may grant such other relief as may be lawful and appropriate.
E. In the case where the alleged violator is the contract awarding authority((,)) and a finding is made that there is reasonable cause to believe that the contract awarding authority has committed a violation, the finding shall be forwarded to the executive, who shall review the evidence and may order one or more of the following:
1. Dismissal of the complaint when a violation is found not to have occurred;
2. Corrective personnel action;
3. Disqualification and suspension of authority of all members, any board, commission, or other body constituting the violating contract awarding authority; and
4. Enforcement of any other remedy available under the laws of the county.
F. In addition to any other remedy available under the laws of the county and the ((S))state of Washington, any person, firm, corporation, business, union((,)) or organization ((which)) that prevents or interferes with or retaliates against a contractor ((and/))or subcontractor's efforts to comply with ((the requirements of)) this chapter or ((which) that submits false or misleading information to any county department or employee concerning compliance with this chapter shall be subject to a civil penalty of up to five thousand dollars for each occurrence, the county having previously complied with the notice and hearing provisions of this chapter. Each submission of false or misleading information shall constitute a separate occurrence.
SECTION 13. Ordinance 10849, Section 19, and K.C.C. 12.16.125 are each hereby amended to read as follows:
No lessor or lessee doing business with the county shall discriminate on the basis of a person's sex, race, color, ((sex, religion, nationality, creed, marital status, sexual orientation, age, or presence of any sensory, mental or physical disability)) marital status, national origin, religious affiliation, disability, sexual orientation, gender identity or expression or age except by minimum age and retirement provisions, unless based upon a bona fide occupational qualification, in the employment or application for employment or in the administration or delivery of services or any other benefits under this chapter. The lessor or lessee shall comply fully with all applicable federal, state and local laws, ordinances, executive orders and regulations ((which)) that prohibit such discrimination. These laws include, but are not limited to, ((C))chapter 49.60 ((of the Revised Code of Washington,)) RCW and Titles VI and VII of the Civil Rights Act of 1964. ((This)) The language in this section shall be included in all lease agreements.
SECTION 14. Ordinance 12787, Section 1, and K.C.C. 12.16.150 are each hereby amended to read as follows:
A. A well-trained diverse work force is critical to the economic and social vitality of the Puget Sound region. Recent studies on the region's workforce highlight population trends that, without a concerted effort to offset them, will lead to an inadequate supply of skilled workers in the construction industry. Furthermore, these demographic trends indicate that a large percentage of new entrants to the labor force will be comprised of minorities, women ((,)) and persons with disabilities and economically disadvantaged youth who historically have faced barriers to employment resulting in an underrepresentation in the skilled trades.
B. The King County council finds as a fact that minorities, women, persons with disabilities and economically disadvantaged youth are underrepresented in the construction trades and industry. Moreover, the council also finds as a fact that a significant reason for the underrepresentation of these populations in the construction trades is the lack of opportunity and training for those persons to serve as apprentices in state-approved apprenticeship programs.
C. The county's comprehensive plan provides that the county shall address historic disparity in income and employment opportunities for minorities, women and economically disadvantaged individuals and shall recognize the importance of, and place special emphasis on, job training and retaining((/)) and expanding family-wage jobs.
D. Other local agencies in King County have successfully implemented apprenticeship programs as part of their projects and contracts and have demonstrated that apprenticeship programs are effective in providing training and experience to individuals seeking to enter or advance in the workforce.
E. King County is committed to fostering partnerships with labor, business, and the local community to create a skilled workforce that reflects the diversity of the county's population.
F. The county's public works contracts will provide training and job opportunities as a means to increase the skills of the county's work force, and the council is committed to utilizing apprenticeship training so that the resulting journey workers can enter the region's pool of skilled labor, fully qualified for jobs. Therefore, the council finds that the creation of an apprenticeship program that will target the recruitment of minorities, women, persons with disabilities and economically disadvantaged youth will serve to benefit the public by assisting these disadvantaged populations to gain entry to the construction trades.
There is hereby established a county apprenticeship training program. An essential component of the program shall be the inclusion of minorities, women, persons with disabilities and economically disadvantaged youth as apprentices.
The ((minority and women's business enterprises and contract compliance division)) administrator shall be responsible for implementing the apprenticeship program under this section. The administrator ((of the minority and women's business enterprises and contract compliance division, as defined in K.C.C. 4.18,)) shall:
A. ((Have responsibility for a))Administer((ing)), monitor((ing)) and ((enforcing)) enforce the goals and requirements of this chapter;
B. ((Have responsibility for coordinating)) Coordinate all elements among all county agencies whose involvement is necessary to implement a successful program;
C. ((Have responsibility for coordinating)) Coordinate the county's efforts with those of other jurisdictions with similar programs to insure a coherent, cohesive and focused response to the future labor needs of the local area construction industry;
D. ((Have responsibility for m))Monitor((ing)), track((ing)) and document((ing)) access to apprentices and state-approved apprentice training programs by open shop contractors who choose to bid on county construction contracts and accept the county's apprenticeship training program requirements; and
E. ((Have responsibility for developing and implementing in conjunction with other local jurisdictions, which have similar programs, a model for predicting the future labor needs, within a reasonable timeframe, of the local construction industry. The model shall have the ability to predict future labor needs by construction trade in order to allow for appropriate recruitment of trade-specific apprentices.)) In addition, the administrator shall include in the annual report required in K.C.C. 12.16.175 the extent of apprentice shortages, if any, by construction trade for the given reporting year, and shall gather this information from the apprentice training programs being utilized by the county's construction contractors. The county shall require contractors who claim apprentices are unavailable to document their efforts to obtain apprentices.
The following voluntary hiring goals shall be ((the apprentice utilizing goals)) applied to following target populations for public works projects as a whole ((which)) that are subject to the apprenticeship program requirements until ((such time as)) the council approves new voluntary hiring goals for these target populations ((are approved by the council)):
Target Populations |
((Utilization)) Voluntary Hiring Goals |
Minorities |
21% |
Women |
25% |
Persons with disabilities |
2% |
Economically disadvantaged youth |
7% |
SECTION 17. Ordinance 13313, Section 4, and K.C.C. 12.16.157 are each hereby amended to read as follows:
A. The voluntary hiring goals established in this chapter shall be used as countywide ((target)) goals for ((apprenticeship utilization)) the participation of persons within the targeted populations as apprentices on applicable county public works projects as a whole((, pursuant to the criteria established in K.C.C. 12.16.165, for the participation of minorities, women, persons with disabilities and economically disadvantaged youth.)) Such goals shall apply as a whole until ((such time as)) all available apprentices are taken or until the established target goals are reached.
B. Application of the voluntary hiring goals ((established in this chapter to particular projects)) for persons from the targeted populations established in K.C.C. 12.16.156 shall be based on the available labor hours on each project and the level of apprentice availability and underutilization of the target groups in each participating construction craft as well as the other criteria listed in K.C.C. 12.16.160.C.
A. The administrator ((of the minority and women's business enterprises and contract compliance division, as defined in K.C.C. 4.18,)) shall:
A.)) 1. Develop specific criteria for assessing the feasibility of implementing the apprenticeship program on each public works project. ((In addition, t))The administrator is authorized to develop and adopt rules consistent with the requirements and policy directives of K.C.C. 12.16.150 through 12.16.180 and ((pursuant to)) in accordance with K.C.C. chapter 2.98. Such rules shall include criteria for determining on a project-by-project basis the appropriateness of requiring the use of apprentices in a certain percentage((.));
((B.)) 2. Establish the percent of labor hours required for the use of apprentices on each public works project selected for the apprenticeship program. The labor hour percentage ((goal)) requirement on the contract for apprentices shall be ((at least 15% and no more than 20% unless reduced or waived)) determined by the administrator. When setting ((such a goal)) the requirement, the administrator shall consider, in addition to other factors, duration of the project, the scope of work, type of work, and the types of crafts and trades to be utilized on the project. During the term of the contract, the administrator may reduce or waive the required percentage of apprentice labor hours ((percentage goal)) upon determination that:
((1.)) a. The contractor has demonstrated that it has utilized its "best efforts" to meet the established percentage requirement but remains unable to fulfill the requirement ((goal));
((2.)) b. In order to meet the requirement, the contractor will be forced to displace members of their workforce; ((or))
((3.)) c. The reasonable and necessary requirements of the contract render apprentice utilization infeasible at the required levels((.));
((C.)) 3. One purpose of the apprenticeship program is to enable minorities, women, and persons with disabilities and economically disadvantaged youth to participate in apprenticeship opportunities. Thus, whenever feasible, the administrator shall ((ensure that a significant number of the apprentice labor hours requirement set for the project shall)) encourage contractors to include minorities, women, persons with disabilities and economically disadvantaged youth in a significant number of the apprentice labor hours requirement set for the project((. In determining such inclusion, the administrator should consider :
1. The percentage of the working age minority, women, persons with disabilities and economically disadvantaged youth population in the county's labor market area;
2. The percentage of the minority, women, persons with disabilities and economically disadvantaged youth labor force in the county's labor market area;
3. The percentage of the minority, women, persons with disabilities and economically disadvantaged youth participation as apprentices in the particular craft as compared with the percentage of minority, women, persons with disabilities and economically disadvantaged youth in the labor force of the county's market area; and
4. The general availability of minority, women, persons with disabilities and economically disadvantaged youth with present or potential capacity for apprenticeship in the county's labor market area.
Participation by minorities, women and persons with disabilities on the contract as apprentices shall be counted towards meeting the county's affirmative action goals established elsewhere in this chapter.));
((D.)) 4. Develop the necessary bid document and contract specification language to implement this apprenticeship requirement((.));
((E.)) 5. Implement a system for monitoring the actual use of apprentices on selected public works projects. Such monitoring shall include, at a minimum, identifying individual apprentices by name and Washington ((S))state apprenticeship registration number, reviewing documents provided by the contractor showing total apprentice labor hours, determining the apprentice hours worked by minorities, women, persons with disabilities and economically disadvantaged youth, and assessing whether the contractor has complied with the apprenticeship requirement.
((F. The administrator shall formulate and forward to the council for its review and approval target percentage apprenticeship goals for minority, women, persons with disabilities and economically disadvantaged youth no later than 60 days after the passage of Ordinance 12787. The above-cited criteria may be used for establishing ad hoc target apprenticeship participation goals until such time as the council passes percentage goals.
G.)) B. Unless otherwise determined by the administrator, in accordance with the standards established in K.C.C. 12.16.150 through 12.16.180, failure by a contractor to comply with the established contract apprenticeship requirements shall be deemed a breach of contract for which the county shall be entitled to all remedies allowed by law and under the contract. Failure to comply with the apprenticeship requirements may be considered evidence bearing on a contractor's qualification for award of future contracts.
The county shall require apprentice utilization on selected county public works projects that will serve to maximize the growth and development of apprentice opportunities. The administrator of the apprenticeship program, as defined in this chapter, in cooperation with the appropriate contract awarding division or department, shall select which public works projects shall include an apprenticeship program. Such selection should be guided by the following:
A. The size of the project and the anticipated hours for apprentices in required trades in order to make the experience beneficial;
B. The kinds of skills required on the project so that current apprentices or waiting applicants have opportunities to pursue the training they need; and
C. The ratio of labor to material with a preference given to projects that are labor intensive.
If the administrator and the contract awarding authority cannot agree on whether a specific public works project shall include an apprenticeship program, the administrator's department director shall make the decision.
The administrator is authorized to require of contractors, through bidding and contract documents, that ((a percentage of total labor hours on the selected projects be performed by)) apprentices enrolled in training programs approved or recognized by the Washington State Apprenticeship and Training Council perform a percentage of total labor hours on the selected projects.
((Construction contracts of one million dollars or less meeting the above criteria may be exempted)) The administrator may exempt construction contracts that do not meet the criterion described in subsections A. through C. of this section from the required participation in the apprenticeship training program ((at the discretion of the administrator, provided that such)) but exemptions for such construction contracts of one million dollars or more shall be thoroughly documented and reported to the council in the annual report required by K.C.C. 12.16.175.
For the purposes of this section, "((L)) labor hours" ((shall refer)) means to the total number of hours worked by workers receiving an hourly wage who are directly employed on the site of the public works project. "Labor hours" ((shall)) also include hours worked by workers employed by subcontractors on the project.
((A.)) The administrator shall work with joint apprenticeship training committees approved by the state of Washington to identify qualified apprentices whom contractors could utilize to meet the apprenticeship requirement established for a public works project. It shall be the policy of King County government that minorities, women, persons with disabilities and economically disadvantaged youth who are recipients of its services and who meet the criteria established in K.C.C. 12.16.150 through 12.16.180 shall be actively recruited for participation in apprenticeship training. The administrator shall work with other county agencies providing employment training services to the apprenticeship training target populations cited in K.C.C. 12.16.150 through 12.16.180, which shall include, but not be limited to, those programs in the King County department of community and human services and other employment training programs as may be housed in other county agencies. In addition, the administrator shall ((insure)) ensure that private agencies providing employment training services to county residents outside of the city of Seattle((, such as, but not limited to, ANEW,)) shall be used as a source of apprenticeship training program recruitment.
The administrator shall cooperate with agencies that ((minorities, women, persons with disabilities and economically disadvantaged youth so that such populations will)) have access to ((pre-apprenticeship)) preapprenticeship programs ((as this may exist)) as a step towards preparing members of the target populations cited in K.C.C. 12.16.150 through 12.16.180 to successfully participate in apprenticeship training programs. In addition, the administrator shall (disseminate)) cooperate with these agencies to encourage their dissemination of information on apprenticeship training opportunities to all school districts within King County outside of the city of Seattle, ((which serves)) to actively recruit the targeted populations into the county's apprentice training program.
The administrator may propose the creation of any ((pre-apprenticeship)) preapprenticeship training programs, which may be needed to meet the intent of K.C.C. 12.16.150 through 12.16.180.
((B. By no later than December 31, 1999, the county shall review the use by King County of joint apprenticeship training committees approved by the state of Washington. Such review shall include, but not be limited to, an analysis of the county's actual experience in attaining its apprenticeship goals and the results to date of other local jurisdictions' experience with similar programs or studies of such programs. The results
of the review may be used by the county council to consider initiating possible modifications to K.C.C. 12.16.150 through 12.16.180.))