Chapter 123:2-3 Affirmative Action Programs

123:2-3-01 Definitions.

The following definitions shall apply:

(A) "Contractor" means any person, partnership, corporation or association that has been awarded a public works contract.

(B) "Subcontractor" means any person who undertakes to construct, alter, erect, improve, repair, demolish, remove, dig or drill any part of any public improvement under a contract with any person other than the public authority.

(C) "Contract" means, unless otherwise indicated, any contract awarded by a contract authority for the construction, engineering, alteration or repair of any public building, public highway or other public work.

(D) "Employees" means any persons on the contractor's or subcontractor's payroll for any payroll period.

(E) "Underutilization" means employment of fewer minorities and/or women in a particular trade than reasonably expected given the availability of minorities and women.

(F) "Bid response" means all documents, whether attached or incorporated by reference, supplied by the bidder in response to an invitation to bid.

(G) "Affirmative action program" means a set of specific and result oriented procedures to which a contractor and/or subcontractor shall apply every good faith effort. It should include efforts required to remedy all effects of present and past discriminatory patterns and practices. The objective of these procedures and efforts is to assure equal employment opportunity for all people.

(H) "Minority" means the following economically disadvantaged groups: Negroes, Spanish sur-named Americans, Orientals, and American Indians.

(I) "Utilization work hours" means the percentage of work hours performed by minorities or women in proportion to the contractor's total work hours for the contractor's total workforce.

(J) "Responsive contractor" means a contractor whose proposal responds to the bid specifications in all material respects and contains no irregularities or deviations from the specifications which would affect the amount of the bid or otherwise provide the contractor with a competitive advantage.

(K) "Responsible contractor" means a contractor whose financial condition, experience, conduct and performance on previous contracts, facilities and management skills support the contractor's ability to execute the contract properly.

(L) "Invitation to bid" means all documents, whether attached or incorporated by reference, utilized for soliciting bids.

(M) "Good faith effort" means affirmative action measures designed to implement the established objectives of an affirmative action program. Determination of "good faith effort" may be based in part upon the contractor's or subcontractor's practices regarding hiring, promotion, demotion or transfer, recruitment, layoff or termination, and rates of compensation.

Eff 6-9-75; 9-9-95
Rule promulgated under: RC 119.03 review dates: 3/1/2002
Rule authorized by: Executive Order of 1-27-72 and The Black Elected Democrats of Ohio, et al. v. Richard F. Celeste, Governor, the State of Ohio, et al. (3-18-88), S.D. Ohio No. C2-82-1198, unreported.
Rule amplifies: RC 153.08 , 153.59
Replaces: 123:2-3-03

123:2-3-02 Establishment of Affirmative Action Programs.

(A) Contractors and subcontractors with fifty or more employees and a contract of fifty thousand dollars or more must establish an affirmative action program. Contractors and subcontractors are required to exert every good faith effort to accomplish the goals of an affirmative action program. Contractors and subcontractors may obtain an acceptable affirmative action program by either of the following methods:

(1) Contractors and subcontractors may adopt the following state percentage goals for minority utilization work hours. The goals are listed as the proportion of minority workhours to the contractor's or subcontractor's total workforce hours, for all state and non-state construction projects, during the performance of the state contract. The minority work hours are provided by trade and designated geographic area. Where the project is not in one of the designated geographic areas, the contractor or subcontractor may adopt the minority utilization goals of the nearest designated geographic area. The goals are project specific based upon the location of the project site. Contractor's and subcontractor's good faith efforts shall not be determined solely by the contractor's or subcontractor's accomplishment of the utilization work hour goals.

(a) Akron Cincinnati

Asbestos workers 10.0 % Asbestos workers 9.0 %

Boilermakers 10.0 % Boilermakers 9.0 %

Bricklayers 10.0 % Carpenters 10.0 %

Electricians 10.0 % Elevator constructors 11.0 %

Elevator constructors 10.0 % Floor layers 10.0 %

Glaziers 10.0 % Glaziers 10.0 %

Ironworkers 10.0 % Lathers 10.0 %

Lathers 10.0 % Marble, tile & terrazzo

Operating engineers 10.0 % Workers & helpers 8.0 %

Painters 10.0 % Millwrights 10.0 %

Plasterers 10.0 % Operating engineers 11.0 %

Plumbers 10.0 % Painters 11.0 %

Roofers 10.0 % Pipe fitters 11.0 %

Sheet metal workers 10.0 % Plasterers 10.0 %

Other trades 10.0 % Plumbers 11.0 %

Sheet metal workers 11.0 %

Other trades 11.0 %

Columbus Cleveland

Asbestos workers 10.0 % Asbestos workers 17.0 %

Boilermakers 10.0 % Boilermakers 10.0 %

Bricklayers 10.0 % Carpenters 16.0 %

Carpenters 10.0 % Electricians 20.0 %

Cement masons 10.0 % Elevator constructors 11.0 %

Electricians 10.0 % Glaziers 17.0 %

Elevator constructors 10.0 % Ironworkers 13.0 %

Glaziers 10.0 % Operating engineers 10.0 %

Ironworkers 10.0 % Painters 17.0 %

Lathers 10.0 % Pipe fitters 17.0 %

Operating engineers 10.0 % Platerers 20.0 %

Painters 10.0 % Plumbers 17.0 %

Plasterers 10.0 % Roofers 17.0 %

Plumbers & pipe fitters 10.0 % Other trades 17.0 %

Roofers 10.0 %

Sheet metal workers 10.0 %

Other trades 10.0 %

Dayton Youngstown-Warren

Asbestos workers 11.0 % Asbestos workers 9.0 %

Boilermakers 11.0 % Bricklayers 9.0 %

Carpenters 11.0 % Carpenters 9.0 %

Electricians 11.0 % Electrical workers 9.0 %

Elevator constructors 11.0 % Elevator constructors 9.0 %

Ironworkers 11.0 % Floor mechanics 9.0 %

Lathers 11.0 % Glaziers 9.0 %

Operating engineers 11.0 % Lathers 9.0 %

Painters 11.0 % Operating engineers 9.0 %

Plumbers 11.0 % Painters & decorators 9.0 %

Sheet metal workers 11.0 % Plumbers & pipe fitters

Other trades 11.0 % and steam fitters 9.0 %

Millwrights 11.0 % Sheet metal workers 9.0 %

Other trades 9.0 %

Teamsters & chauffeurs 9.0 %

Ironworkers 9.0 %

Tile marble & terrazzo 9.0 %

Helpers & workers 9.0 %

Toledo

Asbestos workers 9.0 %

Boilermakers 9.0 %

Carpenters 9.0 %

Electricians 9.0 %

Elevator constructors 9.0 %

Glaziers 9.0 %

Ironworkers 9.0 %

Lathers 9.0 %

Operating engineers 9.0 %

Painters 9.0 %

Plumbers 9.0 %

Sheet metal workers 9.0 %

Other trades 9.0 %

(b) Contractors and subcontractors that do not meet the state utilization work hour goals must implement and demonstrate a good faith effort to make the following state specific affirmative action steps work toward the accomplishment of the state's utilization work hour goals.

(i) Maintenance of a file of minority and women job applicants and the action taken regarding each applicant, including the reasons therefore.

(ii) Notification to the contracting agency of any labor union practice that impedes the equal employment of minorities and women, including the union's failure to refer minority and women applicants back to the contractor or subcontractor after the contractor's or subcontractor's referral of the applicant to the union.

(iii) Publication and implementation of an equal employment opportunity policy within the contractor's organization.

(iv) Evaluation of contractor's or subcontractor's employment practices, including job classifications, promotions, recruitment and seniority designations, for discriminatory impact.

(v) Maintenance of records detailing contractor or subcontractor efforts to recruit minorities and women.

(vi) Participation in community training programs designed for minorities and women.

(vii) Solicitation of subcontracts with minority and women contractors and/or subcontractors, including contracts for supply purchases.

(2) Contractors and subcontractors may submit for approval by the contracting agency the contractor's or subcontractor's own affirmative action program developed in conformity with rule 123:2-3-04 of the Administrative Code, either with the contractor's bid or prior to the submission of bids. Contractor's and subcontractor's good faith efforts shall not be determined solely by the contractor's or subcontractor's accomplishment of the utilization work hour goals.

(B) Where a contractor's or subcontractor's contract for a state public works contract exceeds an estimated total cost of five hundred thousand dollars and the contract site is within a designated geographic area, the contractor or subcontractor, regardless of the number employees employed by the contractor or subcontractor, is subject to the rules and regulations set forth in Chapter 123:2-3 to 123:2-9 of the Administrative Code for all state and non-state construction projects within the designated geographic area.

(1) Contractors and subcontractors may obtain an acceptable affirmative action program in accordance with paragraph (A) of this rule.

(2) Where the provisions of this subsection apply, notice shall be provided in the invitation to bid.

(C) All affirmative action programs, whether the contractor or subcontractor adopts the state affirmative action program or develops the contractor's or subcontractor's own affirmative action program, must include the separate utilization work hour goal for women contained in rule 123:2-3-05 of the Administrative Code.

(D) Contractors and subcontractors shall inform subcontractors with fifty or more employees and a contract of fifty thousand dollars or more or a contract that exceeds an estimated total cost of five hundred thousand dollars and the contract site is within a designated geographic area of the requirement to comply with the rules and regulations set forth in Chapters 123:2-3 to 123:2-9 of the Administrative Code. Contractors and subcontractors shall not contract with any subcontractor that has been found to be not responsible for state contracts pursuant to rule 123:2-07-01[123:2-7-01] of the Administrative Code. A contractor's or subcontractor's failure to comply with this requirement shall provide a basis to invoke any of the sanctions set forth in rule 123:2-7-01 of the Administrative Code against the contractor or subcontractor.

Eff 6-9-75; 1-18-85; 1-14-96
Rule promulgated under: RC 119.03 review dates: 3/1/2002
Rule authorized by: Executive Order of 1/27/72 and The Black Elected Democrats of Ohio, et al. v. Richard F. Celeste, Governor, the State of Ohio, et al. (3/18/88), S.D. Ohio No. C2-82-1198, unreported.
Rule amplifies: RC 153.08 , 153.59 , 153.591
Replaces: Parts of former 123:2-3-01 and 123:2-3-05

123:2-3-03 Implementation of affirmative action programs.

(A) Contractors' and subcontractors' ratio of utilization work hours shall remain substantially uniform for all jobs and trades, during the performance of the state contract.

(B) Contractors and subcontractors are prohibited from transferring minority and/or women employees from contractor to contractor for the sole purpose of meeting the contractor's or the subcontractor's utilization work hour goals.

(C) Contractors and subcontractors must keep all records and file all reports, including minority and women utilization work hour reports, as required by the director of administrative services.

(D) Contractors and subcontractors are prohibited from using an affirmative action program to discriminate against any person on account of race, color, religion, sex or national origin.

(E) A contractor's or subcontractor's failure to adopt the state's affirmative action program or submit an acceptable affirmative action program shall result in the contractor or subcontractor being found to be not responsive.

(F) A contractor's or subcontractor's failure to submit monthly utilization work hour reports shall be a basis for invoking any of the sanctions set forth in rule 123:2-7-01 of the Administrative Code.

(G) This rule is applicable to the implementation of all affirmative action programs.

Eff 6-9-75; 9-9-95
Rule promulgated under: RC 119.03 review dates: 3/1/2002
Rule authorized by: Executive Order of 1/27/72 and The Black Elected Democrats of Ohio, et al. v. Richard F. Celeste, Governor, the State of Ohio, et al. (3/18/88), S.D. Ohio No. C2-82-1198, unreported
Rule amplifies: RC 153.08 , 153.59
Replaces: Part of Former 123:2-3-01

123:2-3-04 Development and accomplishment of affirmative action programs.

(A) A contractor or subcontractor may develop an acceptable affirmative action program by either of the following methods:

(1) Contractors or subcontractors may develop their own affirmative action programs including the contractor's or subcontractor's own minority utilization work hour goals. The development of the utilization work hour goals shall include an analysis of all trades employed by the contractor and/or subcontractor within the last year, an explanation of problem areas inherent in minority employment and an evaluation of minority underutilization in all trades. To determine where minorities are underutilized in any trade, the contractor or subcontractor shall consider the following factors:

(a) The minority population of the labor area surrounding contractor or subcontractor job sites.

(b) The minority employment rate in the labor area surrounding contractor or subcontractor job sites.

(c) The percentage of the minority workforce in the immediate labor area.

(d) The general availability of minorities in the immediate labor area.

(e) The availability of minorities in an area from which the contractor or subcontractor can reasonably recruit.

(f) The availability of promotable minorities within the contractor's or subcontractor's workforce.

(g) The anticipated expansion, reduction and turnover of the contractor's or subcontractor's workforce.

(h) The existence and proximity of qualified training institutions.

(i) The degree of training the contractor or subcontractor is reasonably able to provide to make all job classes available to minorities.

(2) Contractors or subcontractors may adopt the state minority utilization work hour goals, set forth in rule 123:2-3-02.Contractors and subcontractors may supplement the state minority utilization work hour goals with specific affirmative action steps that are developed by the contractor or subcontractor. The specific affirmative action steps may be unique to each contractor and subcontractor.

(B) The contractor's and subcontractor's affirmative action program must include the separate utilization work hour goal for women contained in rule 123:2-3-05 of the Administrative Code.

(C) Contractors and subcontractors must submit for approval, contractor and/or subcontractor developed affirmative action programs to the contracting agency. The affirmative action program may be submitted to the contracting agency either with the contractor's bid or prior to the submission of bids.

(D) Contractors and subcontractors must maintain all data applicable to the development of the contractor's or subcontractor's affirmative action program.

(E) A contractor or subcontractor will have met the goals of the applicable affirmative action program, either the state's affirmative action program or a contractor or subcontractor developed and state approved affirmative action program, if the contractor or subcontractor can establish one of the following:

(1) The contractor's or subcontractor's utilization work hours for minorities and women meet or exceed the goals of the affirmative action program for the total of all the contractor's or subcontractor's projects within the designated geographic areas.

(2) The contractor or subcontractor is a member of a contractor association or other employer organization which has as one of its purposes expanded utilization work hours for minorities and women and the total utilization work hours of minorities and women, by all member contractors and subcontractors of the association or organization on all projects in which they are involved within the designated area, meet the utilization work hour goals for the designated geographic area.

(3) The contractor or subcontractor has a collective bargaining agreement with a labor union that supplies the contractor or subcontractor with over 80 percent of the contractor's or subcontractor's needed workforce and the total utilization work hours in the crafts the labor union has referred on all projects within the designated area meet the utilization work hour goals for the designated geographic area.

(4) The contractor, subcontractor or the employer association to which the contractor or subcontractor belongs has a collective bargaining agreement with a labor organization that supplies the contractor or subcontractor with over 80 percent of the contractor's or subcontractor's needed workforce in a particular trade. Such labor organization is subject to a court order or a consent decree containing an affirmative actions program and the labor organization meets the requirements of the affirmative action program.

(F) Where the contractor or subcontractor has denied any person equal employment opportunity, the contractor or subcontractor will not have met the goals of the contractor's or subcontractor's affirmative action program.

Eff 6-9-75; 9-9-95
Rule promulgated under: RC 119.03 review dates: 3/1/2002
Rule authorized by: Executive Order of 1/27/72 and The Black Elected Democrats of Ohio, et al. v. Richard F. Celeste, Governor, the State of Ohio, et al. (3/18/88), S.D. Ohio No. C2-82-1198, unreported.
Rule amplifies: RC 153.08 , 153.59 , 153.591
Replaces: Former 123:2-3-06

123:2-3-05 Required utilization analysis and goals.

(A) Each state-involved contractor shall include in his/her affirmative action program the information and analysis required pursuant to part IV 401-C of appendix A of rule 123:2-1-01 of the Administrative Code, in addition to female utilization requirements pursuant to the governor's "Executive Order 84-9" and this rule.

(B) As required by the governor's "Executive Order 84-9," the utilization of women shall be, at a minimum, that currently in use by the federal government as of February 15, 1984. This requirement stated at 41 C.F.R. part 60-4 is 6.9 per cent utilization of women. This requirement shall remain at 6.9 per cent unless further amended by the governor in a subsequent order. This requirement shall be met by a determination of workhours utilized in the same manner as minority utilization hours are calculated.

Replaces rule 123:2-3-05; Eff 6-9-75; 1-18-85
Rule promulgated under: RC Chapter 119. review dates: 12/20/2001
Rule amplifies: Governor's Executive Order 84-9, 9.47 , 153.08

123:2-3-06 Certification of labor union employment policies and practices.

Contractors and subcontractors shall submit with the their affirmative action programs a certification,from an authorized agent of all labor unions with which the contractor or subcontractor exchanges referrals for job applicants, stating that the union's employment policies and practices do not discriminate based upon race, color, religion, sex, or national origin. Where the contractor or subcontractor is unable to provide such certification, the contractor or subcontractor shall certify that fact and set forth what efforts were made to secure a statement and the reasons given by the labor union for failing to provide the statement.

Eff 6-9-75; 1-18-85; 9-9-95
Rule promulgated under: RC 119.03 review dates: 3/1/2002
Rule authorized by: Executive Order of 1/27/72 and The Black Elected Democrats of Ohio, et al. v. Richard F. Celeste, Governor, the State of Ohio, et al. (3/18/88), S.D. Ohio No. C2-82-1198, unreported.
Rule amplifies: RC 153.59 , 153.591
Replaces: Former 123:-3-07

123:2-3-07 Review of affirmative action programs.

(A) The contracting agency's compliance officer shall determine a contractor or subcontractor to be not responsive, where the contractor or subcontractor fails to adopt the state's affirmative action program or submit an acceptable affirmative action program. Notice of the compliance officer's determination must be forwarded to the contractor or subcontractor and the contracting agency's contract award office.

Eff 6-9-75; 1-18-85; 9-9-95
Rule promulgated under: RC 119.03 review dates: 3/1/2002
Rule authorized by: Executive Order of 1/27/72 and The Black Elected Democrats of Ohio, et al. v. Richard F. Celeste, Governor, the State of Ohio, et al. (3/18/88), S.D. Ohio No. C2-82-1198, unreported.
Rule amplifies: RC 153.08
Replaces: Parts of Former 123:2-3-07, 123:2-3-08, 123:2-3-09