Chapter 15: Contractor Workforce

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Section 1: EEO Requirements

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Policy

The department imposes specific nondiscrimination and affirmative action obligations on federal-aid highway contractors relating to their employment practices under the authority of 23 CFR Part 230, Subpart D.

It is the policy of the department that every federal-aid contractor, subcontractor or material supplier perform all employment related activities in full accord with applicable equal employment opportunity (EEO) statutes, executive orders, regulations, and policies enunciated thereunder, to assure equal employment opportunity and the treatment of employees without regard to race, color, sex, age, disability, religion, or national origin.

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Contract Provisions

As a recipient of federal funds, the department has the responsibility to ensure that Federal Highway Administration (FHWA)-required equal opportunity requirements are included in direct federal and federal-aid contracts and that contractors are in compliance with those requirements under the department’s authority (The department has no authority under E.O. 11246 to ensure compliance with or enforce OFCCP requirements.). A contractor’s minimum equal opportunity requirements are set forth in the following contract provisions:

FHWA Form 1273, Required Contract Provisions Federal-Aid Construction Contracts. This is a standard document containing required federal EEO contract provisions and proposal notices physically required to be incorporated in each direct federal and federal-aid highway construction contract and subcontract (at any tier) of $10,000 or more. When a contractor signs a direct federal or federal-aid contract of $10,000 or more, the non-discrimination provisions in the Form FHWA-1273 constitutes the contractor’s EEO/Affirmative Action Plan standards for that contract.

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Contractor Federal EEO Requirements

The primary purpose of an Equal Opportunity Contract Compliance review is to determine whether a federal contractor is in compliance with its contractual nondiscrimination and affirmative action requirements. Compliance reviews are conducted by the Office of Civil Rights, Contract Compliance Section (OCR-CCS) to determine a contractor’s compliance with the following federal EEO requirements:

Equal Employment Opportunity

The contractor will work with the department and the federal government in carrying out EEO obligations and in their review of his/her activities under the contract. The contractor will accept as his operating policy the following statement:

“It is the policy of this Company to assure that applicants are employed, and that employees are treated during employment, without regard to their race, religion, sex, color, religion, national origin, age or disability. Such action shall include: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship, preapprenticeship, and/or on-the-job training.”

EEO Officer

The contractor will designate and make known to the department an EEO officer who will have the responsibility for and must be capable of effectively administering and promoting an active contractor program of EEO and who must be assigned adequate authority and responsibility to do so.

Dissemination of EEO Policy

All members of the contractor’s staff who are authorized to hire, supervise, promote, and discharge employees, or who recommend such action or who are substantially involved in such action, will be made cognizant of, and will implement the contractor’s EEO policy and contractual responsibilities to provide EEO in each grade and classification of employment. To ensure the above agreement will be met, the following actions will be taken as a minimum:

  • Periodic meetings of supervisory and personnel office employees will be conducted before the start of work and then not less than once every six months, at which time the contractor’s EEO policy and its implementation will be reviewed and explained. The meeting will be conducted by the EEO officer.
  • All new supervisory or personnel office employees will be given a thorough indoctrination by the EEO officer, covering all major aspects of the contractor’s EEO obligations within 30 days following their reporting for duty with the contractor.
  • All personnel who are engaged in direct recruitment for the project will be instructed by the EEO officer in the contractor’s procedures for locating and hiring minority group employees.
  • Notices and posters setting forth the contractor’s EEO policy will be placed in areas readily accessible to employees, applicants for employment, and potential employees.
  • The contractor’s EEO policy and the procedures to implement such policy will be brought to the attention of employees by means of meetings, employee handbooks, or other appropriate means.

Recruitment

When advertising for employees, the contractor will include in all advertisements for employees the notation, “An Equal Opportunity Employer.” All such advertisements will be placed in publications having a large circulation among minority groups in the area from which the project work force would normally be derived.

  • The contractor will, unless precluded by a valid bargaining agreement, conduct systematic and direct recruitment through public and private employee referral sources likely to yield qualified minority group applicants. To meet this requirement, the contractor will identify sources of potential minority group employees, and establish with such identified sources, procedures whereby minority group applicants may be referred to the contractor for employment consideration.
  • The contractor will encourage his present employees to refer minority group applicants for employment. Information and procedures with regard to referring minority group applicants will be discussed with employees.

Personnel Actions

Wages, working conditions and employee benefits shall be established and administered, and personnel actions of every type, including hiring, upgrading, promotion, transfer, demotion, layoff, and termination, shall be taken without regard to race, color, religion, sex, national origin, age or disability. The following procedures shall be followed:

  • The contractor will conduct periodic inspections of project sites to ensure that working conditions and employee facilities do not indicate discriminatory treatment of project site personnel.
  • The contractor will periodically evaluate the spread of wages paid within each job classification to determine any evidence of discriminatory wage practices.
  • The contractor will periodically review selected personnel actions in depth to determine whether there is evidence of discrimination. Where evidence is found, the contractor will promptly take corrective action. If the review indicates that the discrimination may extend beyond the actions reviewed, such corrective action shall include all affected persons.
  • The contractor will promptly investigate all complaints of alleged discrimination made to the contractor in connection with its obligations under this contract, will attempt to resolve such complaints, and will take appropriate corrective action within a reasonable time. If the investigation indicates that the discrimination may affect persons other than the complainant, such corrective action shall include such other persons. Upon completion of each investigation, the contractor will inform every complainant of all the avenues of appeal.

Training and Promotion

The contractor will assist in locating, qualifying, and increasing the skills of minority group and women employees, and applicants for employment.

Consistent with the contractor’s work force requirements and as permissible under federal and state regulations, the contractor shall make full use of training programs, i.e., apprenticeship, and on-the-job training programs for the geographical area of contract performance.

The contractor will advise employees and applicants for employment of available training programs and entrance requirements for each.

The contractor will periodically review the training and promotion potential of minority group and women employees and will encourage eligible employees to apply for such training and promotion.

Selection of Subcontractors, Procurement of Material, and Leasing of Equipment

The contractor shall not discriminate on the grounds of race, color, religion, sex, national origin, age or disability in the selection and retention of subcontractors including procurement of materials and leases of equipment.

  • The contractor shall notify all potential subcontractors and suppliers of his/her EEO obligations under this contract.
  • Disadvantaged Business Enterprises (DBE) as defined in 49 CFR Part 26, shall have the equal opportunity to compete for and perform subcontracts which the contractor enters into pursuant to this contract.

The contractor will use his best efforts to solicit bids from and to utilize DBE subcontractors or subcontractors with meaningful minority group and female representation among their employees. Contractors shall obtain lists of DBE construction firms from the department.

  • The contractor will use his best efforts to ensure subcontractor compliance with their EEO obligations.

Records and Reports

The contractor shall keep such records as necessary to document compliance with the EEO requirements. Such records shall be retained for a period of three years following completion of the contract work and shall be available at reasonable times and places for inspection by authorized representatives of the department and the FHWA.

The records kept by the contractor shall document the following:

  • The number of minority and non-minority group members and women employed in each work classification on the project;
  • The progress and efforts being made in locating, hiring, training, qualifying, and upgrading minority and female employees; and
  • The progress and efforts being made in securing and services of DBE subcontractors or subcontractors with meaningful minority and female representation among their employees.

The contractors will submit an annual report to the department each July for the duration of the project, indicating the number of minority, women, and non-minority group employees currently engaged in each work classification required by the contract work. The information is to be reported on Form FHWA 1391.

Nonsegregated Facilities

The federal-aid construction contractor, subcontractor, material supplier, or vendor certifies that the firm does not maintain or provide for its employees any segregated facilities at any of its establishments, and that the firm does not permit its employees to perform their services at any location, under its control, where segregated facilities are maintained.

The term “segregated facilities” means any waiting rooms, work areas, restrooms and washrooms, restaurants and other eating areas, time clocks, locker rooms and other storage or dressing areas, parking lots, drinking fountains, recreation or entertainment areas, transportation, and housing facilities provided for employees which are segregated by explicit directive or are, in fact, segregated on the basis of race, color, religion, national origin, age or disability, because of habit, local custom, or otherwise. The only exception will be for the disabled when the demands for accessibility override (e.g. disabled parking).

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EEO Correspondence and Reports

Federal-Aid Highway Construction Contractors Annual EEO Report - Form 1391 – Each prime contractor and subcontractor with federally funded contracts of $10,000 or more, not including material suppliers and regardless of tier, and that have workforce activity during the last full pay period in July (ending July 31st) must complete the Form 1391. The form must include the number of employees, minority, women and non-minority, engaged in each work classification required by the contract who worked all or any part of the specified time period. Contractors who do not perform any work during the last full pay period of July must submit a negative report – write “Not Applicable” across the form, sign and date and return the form.

The area engineer (AE) should distribute the Form 1391 to the contractors. Once completed the contractor must submit three copies of Form 1391 to the AE by August 12th each year. The area office must retain one copy and submit the original and one copy to the district office.

Federal-Aid Highway Construction Summary of Employment Data – The Form 1391 data is to be compiled into the Form 1392 by the district office and the originals submitted to the Office of Civil Rights, Contract Compliance Section (OCR-CSS). The Form 1392 will be due in early September as indicated in the memorandum sent to each district by the director of the Office of Civil Rights.

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