California Legislature—2015–16 Regular Session

Assembly BillNo. 2557


Introduced by Assembly Members Santiago and Bloom

February 19, 2016


An act to amend Section 12990 of the Government Code, relating to public contracting.

LEGISLATIVE COUNSEL’S DIGEST

AB 2557, as introduced, Santiago. State contracts: nondiscrimination clause.

Existing law, the California Fair Employment and Housing Act (FEHA), prohibits an employer or labor organization, among others, from discriminating against a person in specified contexts on the basis of the person’s race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status. FEHA makes an employer who is, or wishes to become, a contractor with the state for public works or for goods or services subject to the provisions of FEHA relating to discrimination, and requires every state contract and subcontract for public works or for goods or services to contain a nondiscrimination clause prohibiting discrimination on the bases enumerated in FEHA by contractors or subcontractors.

This bill would specify that those provisions apply to subcontractors, and would require each state agency with an active contract or subcontract that contains the nondiscrimination clause to negotiate amendments to the nondiscrimination clause as necessary to ensure that the wording of the clause is consistent with the current statutory nondiscrimination provisions.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

P2    1

SECTION 1.  

Section 12990 of the Government Code is
2amended to read:

3

12990.  

(a) Any employer who is, or wishes to become, a
4contractorbegin insert or subcontractorend insert with the state for public works or for
5goods or services is subject to the provisions of this part relating
6to discrimination in employment and to the nondiscrimination
7requirements of this section and any rules and regulations that
8implement it.

9(b) Prior to becoming a contractor or subcontractor with the
10state, an employer may be required to submit a nondiscrimination
11program to the department for approval and certification and may
12be required to submit periodic reports of its compliance with that
13program.

14(c) begin insert(1)end insertbegin insertend insertEvery state contract and subcontract for public works
15or for goods or services shall contain a nondiscrimination clause
16prohibiting discrimination on the bases enumerated in this part by
17contractors or subcontractors. The nondiscrimination clause shall
18contain a provision requiring contractors and subcontractors to
19give written notice of their obligations under that clause to labor
20organizations with which they have a collective bargaining or other
21agreement. These contractual provisions shall be fully and
22effectively enforced. This subdivision does not apply to a credit
23card purchase of goods of two thousand five hundred dollars
24($2,500) or less. The total amount of exemption authorized herein
25shall not exceed seven thousand five hundred dollars ($7,500) per
26year for each company from which a state agency is purchasing
27goods by credit card. It shall be the responsibility of each state
28agency to monitor the use of this exemption and adhere to these
29restrictions on these purchases.

begin insert

30(2) (A) Each state agency with an active contract or subcontract
31that contains a nondiscrimination clause pursuant to this
32subdivision shall negotiate amendments to the nondiscrimination
33clause or necessary to ensure that the wording of the clause is
34consistent with the current statutory nondiscrimination provisions
35of this part.

end insert
begin insert

P3    1(B) This paragraph applies to all active contracts or
2subcontracts, regardless of the date the contract or subcontract
3was entered into.

end insert

4(d) The department shall periodically develop rules and
5regulations for the application and implementation of this section,
6and submit them to the council for consideration and adoption in
7accordance with the provisions of Chapter 3.5 (commencing with
8Section 11340) of Part 1. Those rules and regulations shall describe
9and include, but not be limited to, all of the following:

10(1) Procedures for the investigation, approval, certification,
11decertification, monitoring, and enforcement of nondiscrimination
12programs.

13(2) The size of contracts or subcontracts below which any
14particular provision of this section shall not apply.

15(3) The circumstances, if any, under which a contractor or
16subcontractor is not subject to this section.

17(4) Criteria for determining the appropriate plant, region,
18division, or other unit of a contractor’s or subcontractor’s operation
19for which a nondiscrimination program is required.

20(5) Procedures for coordinating the nondiscrimination
21requirements of this section and its implementing rules and
22regulations with the California Plan for Equal Opportunity in
23Apprenticeship, with the provisions and implementing regulations
24of Article 9.5 (commencing with Section 11135) of Chapter 1 of
25Part 1, and with comparable federal laws and regulations
26concerning nondiscrimination, equal employment opportunity,
27and affirmative action by those who contract with the United States.

28(6) The basic principles and standards to guide the department
29in administering and implementing this section.

30(e) Where a contractor or subcontractor is required to prepare
31an affirmative action, equal employment, or nondiscrimination
32program subject to review and approval by a federal compliance
33agency, that program may be filed with the department, instead of
34any nondiscrimination program regularly required by this section
35or its implementing rules and regulations. Such a program shall
36constitute a prima facie demonstration of compliance with this
37section. Where the department or a federal compliance agency has
38required the preparation of an affirmative action, equal
39employment, or nondiscrimination program subject to review and
40approval by the department or a federal compliance agency,
P4    1evidence of such a program shall also constitute prima facie
2compliance with an ordinance or regulation of any city, city and
3county, or county that requires an employer to submit such a
4program to a local awarding agency for its approval prior to
5becoming a contractor or subcontractor with that agency.

6(f) Where the department determines and certifies that the
7provisions of this section or its implementing rules and regulations
8 are violated or determines a contractor or subcontractor is engaging
9in practices made unlawful under this part, the department may
10recommend appropriate sanctions to the awarding agency. Any
11such recommendation shall take into account the severity of the
12violation or violations and any other penalties, sanctions, or
13remedies previously imposed.



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