2020 -- S 2298 | |
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LC004104 | |
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STATE OF RHODE ISLAND | |
IN GENERAL ASSEMBLY | |
JANUARY SESSION, A.D. 2020 | |
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A N A C T | |
RELATING TO LABOR AND LABOR RELATIONS -- EMPLOYMENT OF PEOPLE WITH | |
DISABILITIES | |
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Introduced By: Senators Ciccone, Lombardo, Lombardi, Felag, and Nesselbush | |
Date Introduced: February 04, 2020 | |
Referred To: Senate Labor | |
It is enacted by the General Assembly as follows: | |
1 | SECTION 1. Sections 28-5.1-3.2, 28-5.1-10 and 28-5.1-17 of the General Laws in |
2 | Chapter 28-5.1 entitled "Equal Opportunity and Affirmative Action" are hereby amended to read |
3 | as follows: |
4 | 28-5.1-3.2. Enforcement. |
5 | (a) The state equal opportunity administrator is authorized to initiate complaints against |
6 | any agencies, administrators, or employees of any department or division within state |
7 | government, excluding the legislative branch, who or which willfully fail to comply with the |
8 | requirements of any applicable affirmative action plan or of this chapter or who or which fail to |
9 | meet the standards of good faith effort, reasonable basis, or reasonable action, as defined in |
10 | guidelines promulgated by the federal Equal Employment Opportunity Commission as set forth in |
11 | 29 CFR 1607 and the Office of Federal Contract Compliance Programs as set forth in 41 CFR |
12 | Part 60-741. |
13 | (b) Whenever the equal employment opportunity administrator initiates a complaint, he |
14 | or she shall cause to be issued and served in the name of the equal employment opportunity office |
15 | a written notice, together with a copy of the complaint, requiring that the agency, administrator, |
16 | agent, or employee respond and appear at a hearing at a time and place specified in the notice. |
17 | The equal employment opportunity office shall follow its lawfully adopted rules and regulations |
18 | concerning hearings of discrimination complaints. |
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1 | (c) The equal employment opportunity office shall have the power, after a hearing, to |
2 | issue an order requiring a respondent to a complaint to cease and desist from any unlawful |
3 | discriminatory practice and/or to take any affirmative action, including, but not limited to, hiring, |
4 | reinstatement, transfer, or upgrading employees, with or without back pay, or dismissal, that may |
5 | be necessary to secure compliance with any applicable affirmative action plan or with state or |
6 | federal law. |
7 | (d) A final order of the equal employment opportunity office constitutes an "order" |
8 | within the meaning of § 42-35-1(j); is enforceable as an order; is to be rendered in accordance |
9 | with § 42-35-12; and is subject to judicial review in accordance with § 42-35-15. |
10 | 28-5.1-10. State contracts. |
11 | The division of purchases shall prepare any rules, regulations, and compliance reports |
12 | that shall require of state contractors the same commitment to equal opportunity as prevails under |
13 | federal contracts controlled by federal executive orders 11246, 11625 and 11375 and Office of |
14 | Federal Contract Compliance Programs as set forth in 41 CFR Part 60-741. Affirmative action |
15 | plans prepared pursuant to those rules and regulations shall be reviewed by the state equal |
16 | opportunity office. The state equal opportunity office shall prepare a comprehensive plan to |
17 | provide compliance reviews for state contracts. A contractor's failure to abide by the rules, |
18 | regulations, contract terms, and compliance reporting provisions as established shall be ground |
19 | for forfeitures and penalties as established by the department of administration in consultation |
20 | with the state equal opportunity office. |
21 | 28-5.1-17. Utilization analysis. |
22 | (a)(1) The personnel administrator, in consultation with the equal employment |
23 | opportunity administrator, and the human resources outreach and diversity administrator within |
24 | the department of administration, shall annually conduct a utilization analysis of positions within |
25 | state government based upon the annual review conducted pursuant to §§ 28-5-40, 28-5.1-3 and |
26 | 28-5.1-4. |
27 | (2)(i) To the extent the analysis determines that minorities as currently defined in federal |
28 | employment law as Blacks, Hispanics, American Indians (including Alaskan natives), Asians |
29 | (including Pacific Islanders), are being underrepresented and/or underutilized, the personnel |
30 | administrator shall, through the director of administration, direct the head of the department |
31 | where the under-representation and/or under-utilization exists to establish precise goals and |
32 | timetables and assist in the correction of each deficiency, to the extent permitted by law and by |
33 | collective bargaining agreements. |
34 | (ii) To the extent the analysis determines that persons with disabilities, as defined by the |
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1 | Office Of Federal Contract Compliance Programs as set forth in 41 CFR Part 60‐741, are being |
2 | underrepresented and/or underutilized, the personnel administrator shall, through the director of |
3 | administration, direct the head of the department where the under representation or under- |
4 | utilization exists to establish precise goals and timetables and assist in the correction of each |
5 | deficiency, to the extent permitted by law and by collective bargaining agreements. |
6 | (3) The initial analysis shall be directed toward service oriented departments of the state, |
7 | state police, labor and training, corrections, children, youth and families, courts, transportation, |
8 | and human services. |
9 | (4) The equal employment opportunity administrator shall be consulted in the selection |
10 | process for all positions certified as underrepresented and/or underutilized and shall report the |
11 | results of progress toward goals to the governor and to the general assembly by January 31 and |
12 | July 31 of each year. A copy of these results which shall be referred to the Rhode Island |
13 | commission for human rights which may, in its discretion, investigate whether a violation of |
14 | chapter 28-5 has occurred. The results shall be a public record and shall be made available |
15 | electronically on the secretary of state's website. |
16 | (b)(1) In the event of a reduction in force, the personnel administrator, in consultation |
17 | with the equal employment opportunity administrator and director of the department(s) where the |
18 | reduction is proposed, shall develop a plan to ensure that affirmation action gains are preserved to |
19 | the extent permitted by law and by collective bargaining agreements. A copy of this plan shall be |
20 | referred to the Rhode Island commission for human rights which may, in its discretion, |
21 | investigate whether a violation of chapter 28-5 has occurred. The plan shall be a public record |
22 | and shall be made available electronically on the secretary of state's website. |
23 | (2) The equal employment opportunity administrator shall report the results of the plans |
24 | and their subsequent actions to the governor and to the general assembly by January 31 and July |
25 | 31 of each year, to the Rhode Island commission for human rights. The report shall be a public |
26 | record and shall be made available electronically on the secretary of state's website. Consistent |
27 | with § 28-5.1-6, the Rhode Island commission for human rights shall have the power to order |
28 | discontinuance of any department or division employment pattern or practice deemed |
29 | discriminatory in intent or result by the commission. |
30 | (3) The equal opportunity administrator shall notify the commission of reports and results |
31 | under this chapter. |
32 | SECTION 2. Sections 37-2.2-2 and 37-2.2-3.1 of the General Laws in Chapter 37-2.2 |
33 | entitled "Disability Business Enterprises" are hereby amended to read as follows: |
34 | 37-2.2-2. Definitions. |
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1 | As used in this chapter, the following words and phrases shall have the following |
2 | meanings unless the context shall indicate another or different meaning or intent: |
3 | (1) "Persons with disabilities" or "person with a disability" shall mean any individual who |
4 | has a physical or mental impairment which constitutes a substantial barrier to employment as |
5 | certified by the department of human services, or the department of behavioral healthcare, |
6 | developmental disabilities and hospitals, the United States Department of Veterans' Affairs, the |
7 | Social Security Administration, or other certifying state or federal entities. |
8 | (2) "Small disadvantaged businesses owned and controlled by persons with disabilities " |
9 | shall mean small business concern, which is at least fifty-one percent (51%) owned by one or |
10 | more person(s) with disabilities or, in the case of a publicly owned business, at least fifty-one |
11 | percent (51%) of the stock of which is owned by one or more disabled person, whose |
12 | management and daily business operations are controlled by one or more person(s) with |
13 | disabilities, and have fifty or fewer employees. |
14 | (3) "A physical or mental impairment" shall mean any physiological disorder or |
15 | condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body |
16 | systems: neurological; musculoskeletal; special sense organs; respiratory, including speech |
17 | organs; cardiovascular; reproductive; digestive; genito-urinary; hemic and lymphatic; skin; and |
18 | endocrine; or any mental psychological disorder, such as mental retardation, organic brain |
19 | syndrome, emotional or mental illness, and specific learning disabilities. |
20 | 37-2.2-3.1. Policy and applicability. |
21 | (a) It is the policy of the state of Rhode Island that small disadvantaged disability |
22 | businesses shall have the maximum opportunity to participate in the performance of procurements |
23 | and projects as outlined in this chapter. This chapter shall apply to any and all state purchasing, |
24 | including, but not limited to, the procurement of goods and services, construction projects, or |
25 | contracts funded in whole or in part by state funds, or funds which, in accordance with a federal |
26 | grant or otherwise, the state expends or administers or in which the state is a signatory to the |
27 | construction contract. |
28 | (b) The director of administration, in consultation with the governor's commission on |
29 | disabilities, is authorized and directed to establish rules and regulation formulas for awarding |
30 | contracts to small disadvantaged businesses owned and controlled by persons with disabilities in |
31 | the procurement of goods, services, construction projects, or contracts funded in whole or in part |
32 | by state funds, in accordance with § 37-2-9(b)(14) on or before January 1, 2013. |
33 | (c) The state's annual goal for disability business enterprises to participate in state |
34 | procurements and construction projects under this chapter, shall be no less than three percent |
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1 | (3%) of the total value all contracts available to all businesses in each fiscal year. The director of |
2 | the department of administration is further authorized to establish by rules and regulation |
3 | formulas for giving disability business enterprises a preference in contract and subcontract |
4 | awards. |
5 | SECTION 3. Chapter 37-2.2 of the General Laws entitled "Disability Business |
6 | Enterprises" is hereby amended by adding thereto the following sections: |
7 | 37-2.2-6. Sanctions. |
8 | The director of the department of administration shall have the power to impose sanctions |
9 | upon contractors not in compliance with this chapter to include, but not be limited to: |
10 | (1) Suspension of payments; |
11 | (2) Termination of the contract; |
12 | (3) Recovery by the state of ten percent (10%) of the total contract award price as |
13 | liquidated damages; and |
14 | (4) Denial of the right to participate in future projects for up to three (3) years. |
15 | 37-2.2-7. Reporting. |
16 | By August 1, 2020, and each August 1 thereafter, the department of administration shall |
17 | submit an annual report to the governor, speaker of the house, senate president, and executive |
18 | secretary of the governor's commission on disabilities, for the period from July 1 to June 30, on |
19 | the actual utilization of disability-owned small business enterprises as contractors, subcontractors, |
20 | suppliers, and professional service providers for the state. The annual report shall include a list of |
21 | all disability-owned small businesses that participated as contractors, subcontractors, suppliers, |
22 | and professional service providers for the state, during the previous fiscal year. |
23 | SECTION 4. Chapter 37-2.4 of the General Laws entitled "Habilitation Procurement |
24 | Program" is hereby amended by adding thereto the following sections: |
25 | 37-2.4-4. Habilitation facilities participation. |
26 | The state's annual goal for the habilitation facilities to participate in state procurements |
27 | and construction projects under this chapter shall be no less than three percent (3%) of the total |
28 | value of all contracts available to businesses in each fiscal year. The director of the department of |
29 | administration is further authorized to establish by rules and regulation, formulas for giving |
30 | disability business enterprises a preference in contract and subcontract awards. |
31 | 37-2.4-5. Sanctions. |
32 | The director of the department of administration shall have the power to impose sanctions |
33 | upon contractors not in compliance with this chapter, to include, but not be limited to: |
34 | (1) Suspension of payments; |
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1 | (2) Termination of the contract; |
2 | (3) Recovery by the state of ten percent (10%) of the total contract award price as |
3 | liquidated damages; and |
4 | (4) Denial of the right to participate in future projects for up to three (3) years. |
5 | 37-2.4-6. Reporting. |
6 | By August 1, 2022, and each August 1 thereafter, the department of administration shall |
7 | submit an annual report to the governor, speaker of the house, senate president, secretary of the |
8 | executive office of health and human services, the director of the department of behavioral |
9 | healthcare, developmental disabilities, and hospitals and the director of the office of rehabilitation |
10 | services for the period from July 1 to June 30, which addresses the actual utilization of |
11 | habilitation services by contractors, subcontractors, suppliers, and professional service providers |
12 | for the state. The annual report shall include a list of all disability-owned small businesses that |
13 | participated as contractors, subcontractors, suppliers, and professional service providers for the |
14 | state during the previous fiscal year. |
15 | SECTION 5. This act shall take effect upon passage. |
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LC004104 | |
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EXPLANATION | |
BY THE LEGISLATIVE COUNCIL | |
OF | |
A N A C T | |
RELATING TO LABOR AND LABOR RELATIONS -- EMPLOYMENT OF PEOPLE WITH | |
DISABILITIES | |
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1 | This act would incorporate the federal affirmative action and nondiscrimination |
2 | obligations of federal contractors and subcontractors regarding individuals with disabilities, |
3 | utilization goal of seven percent (7%) for employment of qualified individuals with disabilities |
4 | into the Rhode Island equal opportunity and affirmative action policy. |
5 | This act would expand the existing disability business enterprises program by allowing |
6 | Veterans' Affairs, the Social Security Administration and others to verify that a business owner |
7 | has a disability and is eligible for the current program. This act would set a goal of no less than |
8 | three percent (3%) for state procurement by June 30, 2022. |
9 | This act would set a goal for the habilitation facilities to participate in state procurements |
10 | and construction projects of less than three percent (3%) of the total value of all contracts |
11 | available to businesses in each fiscal year by June 30, 2022. |
12 | This act would take effect upon passage. |
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