Subpart 1.
General criteria for review.
A contractor's compliance status shall not be based solely
upon whether or not it reaches its goals or meets its timetables. A
contractor's compliance status shall be determined by reviewing its compliance
with Minnesota Statutes, section
363A.36 and parts
5000.3400 to
5000.3600, the contents of its
affirmative action plan, the extent of its adherence to the plan or the equal
opportunity clauses contained in its state contracts, and its employment
practices and their effects. In determining a contractor's status, the
department shall also consider the extent to which a contractor has made good
faith efforts to implement its affirmative action plan or the equal opportunity
clauses contained in its state contracts.
Subp. 2.
Determination of good faith efforts.
A contractor's good faith efforts shall be determined by
whether it takes prompt corrective action when it becomes aware that any of the
following conditions exist with regard to its workforce:
A. underutilization of women or minorities in
any job group;
B. minority or
female employees move laterally, vertically, at a lesser rate than nonminority
or male employees;
C. a selection
process eliminates minorities or women at higher rate than nonminority or male
employees;
D. preemployment
inquiries and application forms do not satisfy state law
requirements;
E. descriptions of
jobs do not accurately reflect functions involved;
F. selection procedures are not valid
predictors of job performance;
G.
disproportionately high rejection of women or minorities by hiring
supervisors;
H. women, minorities,
and disabled persons who are not participating in company-sponsored
activities;
I. segregation still
exists at some facilities;
J.
disparities by minority group status or sex in terms of length of service and
type of job held;
K. managers,
supervisors, or employees lack interest in company equal employment opportunity
policies;
L. underrepresentation of
women or minorities in training or career improvement programs;
M. techniques for evaluating effectiveness of
its equal employment opportunity programs have not been established;
and
N. inadequate display of equal
employment opportunity posters.
Subp. 3.
Additional factors regarding good faith efforts.
Good faith efforts shall also be determined by:
A. whether a contractor submits timely
compliance review reports as required by part
5000.3580;
B. whether a contractor permits an on-site
compliance review to be conducted;
C. whether a contractor makes available
records or other information as required by parts
5000.3400 to
5000.3600; or
D. whether a contractor implements
conciliation agreements.
Subp. 4.
Analysis of good faith efforts.
Good faith efforts shall be analyzed by:
A. the results of an investigation of a
charge of discrimination;
B. the
results of an analysis of the contractor's affirmative action plan;
C. the results of an on-site review of the
contractor's compliance with its affirmative action plan or equal opportunity
clause; or
D. the results of an
assessment of the contractor's compliance with Minnesota Statutes, section
363A.36 and parts
5000.3400 to
5000.3600.
Subp. 5.
Notification of deficiencies.
If the department determines that a contractor has failed
to adhere to its affirmative action plan or the equal opportunity clauses
contained in its state contracts, that the contractor has failed to exercise
good faith efforts to implement the plan or the equal opportunity clauses, or
has failed to comply with Minnesota Statutes, section
363A.36 and parts
5000.3400 to
5000.3600, it shall notify the
contractor by first-class mail identifying the nature of the deficiency and
stating specifically the corrective measures necessary for eliminating the
deficiency. The contractor shall have 15 days to reply to the notice of
deficiency.
Where deficiencies are found to exist, the department shall
attempt to secure compliance through conciliation and persuasion unless it
determines that such efforts would be unsuccessful or unproductive. Before the
contractor can be found to be in compliance, the contractor shall make a
specific commitment in writing to correct the deficiencies set forth in the
notice. The commitment must include the precise action to be taken and dates
for completion. The time period allotted must be no longer than the minimum
period necessary to effect such changes. Upon approval of the commitment by the
commissioner, the contractor may be considered in compliance, on condition that
the commitment is faithfully kept. The contractor shall be notified that making
such a commitment does not preclude future determinations of noncompliance
based on a finding that the commitment is not sufficient to achieve
compliance.
Subp. 6.
Notification of sanctions and hearing.
Where a contractor fails to respond to a notice of
deficiency within 15 days or the department determines that attempts to correct
the deficiencies through conciliation and persuasion have been or would be
unsuccessful or unproductive, the department may impose one or more of the
sanctions set forth in Minnesota Statutes, section
363A.36, subdivision 3. The
department shall serve the contractor with notice of the sanctions by mailing a
copy thereof to the contractor by first-class mail. The sanctions shall become
effective 20 days after the notice is served.
A contractor may obtain a hearing regarding the
department's determination of deficiencies or any sanctions which it has
imposed by filing a written request for a hearing with the department within 20
days after service of the notice of sanction. The hearing shall be a contested
case proceeding pursuant to the Administrative Procedure Act, Minnesota
Statutes, sections 14.57 to
14.69.
A. If a timely request for a hearing is
filed, the commissioner shall issue and serve upon the contractor by certified
mail a notice and order directing the contractor to appear at the hearing, at a
time and place specified in the notice, and show cause why the sanctions
determined by the department shall not be imposed.
B. The filing of a timely request for a
hearing shall stay the enforcement of the sanctions in question until a final
decision is issued or the request for a hearing is withdrawn or dismissed with
prejudice. The failure of a contractor to appear at the hearing may be grounds
for dismissal with prejudice.
C.
The administrative law judge shall make and file with the commissioner a report
stating the findings of fact, conclusions, and recommendations. The
commissioner shall serve each party with a copy of the report by mail. Within
20 days after service of the report, any party including the department, may
file with the commissioner and serve exceptions to the report and reasons in
support of their exceptions.
D.
Exceptions with respect to statements of fact or matters of law must be
specific and must be stated and numbered separately. When exception is taken to
a statement of fact, a corrected statement must be incorporated. If exception
is taken to conclusions in the report, the points relied upon to support the
exception must be stated and numbered separately. A reply to exceptions is not
required, but may be filed by any party including the department within ten
days after service of the exceptions to which reply is made along with proof of
service thereof on all parties of record.
E. Exceptions and replies shall contain
written arguments in support of the position taken by the party filing such
exceptions or reply. An opportunity for oral argument before the commissioner
or the commissioner's designee shall be permitted if requested by a party at
the time that they file their exceptions or reply, unless the commissioner in
the exercise of discretion, determines that oral argument is unnecessary
because the facts and legal arguments could be adequately presented by the
briefs and records and the decisional process would not be significantly aided
by oral argument. Oral arguments shall be limited to a discussion of legal
questions and a restatement of facts in evidence. No new evidence shall be
received at oral arguments.
F.
Within 20 days from the date of the mailing by the commissioner of a final
decision or order, any party including the department, may petition for a
rehearing, or for an amendment or vacation of the findings of fact, decision or
order, or for reconsideration or reargument. If the petition is for a
rehearing, vacation, reconsideration, or reargument, the grounds relied upon
shall be specifically set forth and the claimed errors clearly stated. If the
petition is for an amendment of the findings of fact, decision, or order, it
shall contain the desired proposed amendments, and the reasons for it shall be
clearly stated. The petition shall be served upon all parties to the
proceeding. An adverse party shall have ten days from the date of the service
of the petition to answer and no reply will be permitted. The commissioner may
grant or deny the petition without a hearing, or in the commissioner's
discretion set a hearing thereon. Pending the decision of the commissioner on
the petition, the commissioner may vacate and set aside the decision or order.
No petition will extend the time of appeal from the decision or
order.
G. A second petition for
rehearing, amendment, or vacation of any finding of fact, decision, or order,
reconsideration or reargument by the same party or parties and upon the same
grounds as a former petition which has been considered and denied, will not be
entertained.
Within ten days after the date that sanctions become
effective, the department shall notify the state agency or state agencies which
hold contracts with the affected contractor about the sanctions and make
recommendations regarding whether such contracts shall be terminated pursuant
to Minnesota Statutes, section
363A.36, subdivision 4.
Subp. 7.
Recertification.
A contractor whose certificate of compliance has been
suspended or revoked or who has been declared ineligible for further
certificates of compliance pursuant to Minnesota Statutes, section
363A.36, subdivision 3, may
request reinstatement in a letter to the commissioner. The commissioner may
grant the request if, based upon the contractor's showing, the department's
file regarding the contractor's past performance, a compliance review, the
recommendations of the department or a conciliation agreement the commissioner
determines that the contractor has established and will carry out employment
policies and practices that are in compliance with Minnesota Statutes, section
363A.36 and with parts
5000.3400 to
5000.3600.
Subp. 8.
Evidence of discrimination.
If a compliance review indicates a violation of Minnesota
Statutes, sections 363A.08 to
363A.17 and
363A.19, the commissioner may
proceed to file a charge and process the matter under Minnesota Statutes,
sections 363A.06 and
363A.28 or this part.
