§ 2–219.03. Employment agreements required.
(a) The Mayor shall include for every government-assisted project or contract a requirement that the beneficiary enter into an employment agreement with the District of Columbia government which states that:
(1) The first source for finding employees to fill all jobs created by the government-assisted project or contract will be the First Source Register; and
(2) The first source for finding employees to fill any vacancy occurring in all jobs covered by an employment agreement will be the First Source Register.
(b) In selecting unemployed District residents from the First Source Register for interviews for all jobs covered by each employment agreement, the Mayor shall:
(1) Give first preference to unemployed District residents pursuant to § 2-219.01(6)(A); and
(2) Give second preference to unemployed District residents pursuant to § 2-219.01(6)(B).
(c) The Mayor shall transmit each employment agreement to the Department of Employment Services no less than 7 calendar days in advance of the project or contract start date, whichever is later, and no work associated with the relevant government assistance can begin on a project or contract until the employment agreement has been accepted by the Department of Employment Services.
(d) Repealed.
(e)(1)(A) The Mayor shall include in each government-assisted project or contract that receives government assistance totaling between $300,000 and $5,000,000, a provision that at least 51% of the new employees hired to work on the project or contract shall be District residents. Collective bargaining agreements shall not be the basis for a waiver from this requirement.
(B) Prior to the employment agreement being accepted by the Department of Employment Services, each beneficiary covered by this paragraph shall choose whether the 51% of the new employees hired shall be:
(i) Cumulative of all new hires, including those made by all subcontractors at any tier who work on the project or contract; or
(ii) Met by each beneficiary covered by this paragraph and each individual subcontractor at any tier who works on the project or contract.
(C) Each beneficiary covered by this paragraph shall submit to the Department of Employment Services each month following the start of the project or contract a hiring compliance report for the project or contract that includes the:
(i) Number of employees who worked on the project or contract;
(ii) Number of current employees transferred;
(iii) Number of new job openings created;
(iv) Number of job openings created by employee attrition;
(v) Number of job openings listed with the Department of Employment Services;
(vi) Total monthly direct and indirect labor costs associated with the project or contract;
(vii) Total number of all District residents hired for the reporting period and the cumulative total number of District residents hired; and
(viii) Total number of all employees hired for the reporting period and the cumulative total number of employees hired, including each employee’s:
(I) Name;
(II) Social security number;
(III) Job title;
(IV) Hire date;
(V) Residence; and
(VI) Referral source for all new hires.
(D)(i) Government-assisted construction projects or contracts covered by this paragraph shall be subject to the hiring and reporting requirements set forth in this paragraph until construction is completed and a final certificate of occupancy has been issued.
(ii) Government-assisted non-construction projects or contracts covered by this paragraph shall be subject to the hiring and reporting requirements set forth in this paragraph for as long as the benefit is being received.
(iii) A retail or commercial tenant that is a beneficiary as defined under § 2-219.01(1)(C) and is covered by this paragraph shall be subject to the hiring and reporting requirements set forth in this paragraph for 5 years following the commencement of the tenant’s initial lease date.
(1A)(A) The Mayor shall include in each government-assisted construction project or contract that receives government assistance totaling $5 million or more, a provision requiring that:
(i) At least 20% of journey worker hours by trade shall be performed by District residents;
(ii) At least 60% of apprentice hours by trade shall be performed by District residents;
(iii) At least 51% of the skilled laborer hours by trade shall be performed by District residents; and
(iv) At least 70% of common laborer hours shall be performed by District residents.
(B) Collective bargaining agreements shall not be a basis for a waiver from this requirement.
(C) As part of the employment plan required by subparagraph (F)(ii) of this paragraph, each beneficiary covered by this paragraph shall choose whether all residency work requirements shall be:
(i) Cumulative of all hours worked, including those hours worked by subcontractors at any tier who work on the project or contract; or
(ii) Met by each beneficiary covered by this paragraph and each individual subcontractor at any tier who works on the project or contract.
(D) Each month following the start of the project or contract, beneficiaries covered by this paragraph shall submit to the Department of Employment Services copies of their monthly and cumulative certified payrolls, monthly and cumulative certified payrolls from all subcontractors at any tier working on the project or contract, as well as a report of the total monthly direct and indirect labor costs associated with the project or contract.
(E) Government-assisted construction projects or contracts covered by this paragraph shall be subject to the hiring and reporting requirements set forth in this paragraph until construction is completed and a final certificate of occupancy has been issued.
(F)(i) Bids and proposals responding to a solicitation for a government-assisted project or contract covered by this paragraph shall include an initial employment plan outlining the bidder or offeror’s strategy to meet the local hiring requirements as part of its response to the solicitation. These plans shall be evaluated and scored by the Mayor based on the criteria listed in sub-sub-subparagraphs (I), (II), and (III) of this sub-subparagraph. The evaluation shall be worth 10% of the overall score of the bid or proposal. The employment plan shall include the following:
(I) Descriptions of the health and retirement benefits provided to employees who worked on any of the bidder or offeror’s past 3 completed projects or contracts;
(II) A description of the bidder or offeror’s efforts to provide District residents with ongoing employment and training opportunities after they complete work on the job for which they were initially hired; and
(III) A disclosure of past compliance with the Workforce Act and the Davis-Bacon Act of 1931, approved March 3, 1931 (46 Stat. 1494; 40 U.S.C. § 3141 et seq.) (“Davis-Bacon Act”), where applicable, on projects or contracts completed within the last 2 years.
(ii) The winning bidder or offeror shall submit a revised employment plan to the Mayor for approval prior to beginning work associated with the relevant government project or contract. The employment plan shall include:
(I) A projection of the total number of hours to be worked on the project or contract by trade;
(II) A projection of the total number of journey worker hours, by trade, to be worked on the project or contract and the total number of journey worker hours, by trade, to be worked by District residents;
(III) A projection of the total number of apprentice hours, by trade, to be worked on the project or contract and the total number of apprentice hours, by trade, to be worked by District residents;
(IV) A projection of the total number of skilled laborer hours, by trade, to be worked on the project or contract and the total number of skilled laborer hours, by trade, to be worked by District residents;
(V) A projection of the total number of common laborer hours to be worked on the project or contract and the total number of common laborer hours to be worked by District residents;
(VI) A timetable outlining the total hours worked by trade over the life of the project or contract and an associated hiring schedule;
(VII) Descriptions of the skill requirements by job title or position, including industry-recognized certifications required for the different positions;
(VIII) A strategy to fill the hours required to be worked by District residents pursuant to this paragraph, including a component on communicating these requirements to contractors and subcontractors and a component on potential community outreach partnerships with the University of the District of Columbia, the University of the District of Columbia Community College, the Department of Employment Services, Jointly Funded Apprenticeship Programs, or other government-approved, community-based job training providers;
(IX) A remediation strategy to ameliorate any problems associated with meeting these hiring requirements, including any problems encountered with contractors and subcontractors;
(X) The designation of a senior official from the general contractor who will be responsible for implementing the hiring and reporting requirements;
(XI) Descriptions of the health and retirement benefits that will be provided to District residents working on the project or contract;
(XII) A strategy to ensure that District residents who work on the project or contract receive ongoing employment and training opportunities after they complete work on the job for which they were initially hired and a review of past practices in continuing to employ District residents from one project or contract to the next;
(XIII) A strategy to hire graduates of District of Columbia Public Schools, District of Columbia public charter schools, and community-based job training providers, and hard-to-employ residents; and
(XIV) A disclosure of past compliance with the Workforce Act and the Davis-Bacon Act, where applicable, and the bidder or offeror’s general District-resident hiring practices on projects or contracts completed within the last 2 years.
(iii) The Mayor shall require all beneficiaries of government-assisted projects or contracts covered by this paragraph that are not awarded through the contracting process to develop and submit to the Department of Employment Services the employment plan required in sub-subparagraph (ii) of this subparagraph.
(iv) Once approved, the employment plan required by sub-subparagraph (ii) of this subparagraph shall not be amended except with the approval of the Mayor.
(G) For the purpose of calculating hours worked by District residents, beneficiaries covered by this paragraph may receive double credit for hours worked by District residents who are certified by the Department of Employment Services as hard to employ as long as they include the resident’s hard-to-employ certification as part of the monthly reporting. No more than 15% of the total hours worked by District residents may be comprised of double-credit hours.
(H) For the purpose of calculating hours worked by District residents, beneficiaries covered by this paragraph may count any hours worked by District residents on other completed projects or contracts subject to and in excess of the Workforce Act’s hiring requirements that are certified by the Mayor.
(I) Within one year of February 24, 2012, the Mayor shall review the hiring and reporting requirements set forth by this paragraph to determine the appropriateness of each percentage and make relevant findings of the determination in a report to the Council. After the initial submission of this report the Mayor shall regularly, but at least once every 3 years, conduct a new review of the hiring and reporting requirements set forth by this paragraph to determine the appropriateness of each percentage and make relevant findings of the determination in a report to the Council.
(J) The Department of Employment Services shall consider requests from beneficiaries to recommend to the D.C. Apprenticeship Council to alter the ratio of journey worker to apprentice positions as long as the request does not jeopardize the quality or safety of the project or contract and there is a compelling District-resident hiring rationale.
(1B)(A) Within one year of February 24, 2012, the Mayor shall issue rules establishing enhanced hiring and reporting requirements for government-assisted non-construction projects or contracts that receive government assistance totaling $5 million or more.
(B)(i) These rules shall include industry-specific requirements by percentage of total hours worked for full-time and part-time hourly wage employees and by percentage of full-time and part-time salaried employees, broken out by job category. The proposed rules shall also establish the length of time that these projects or contracts shall comply with the hiring and reporting requirements.
(ii) The proposed rules shall be submitted to the Council for a 45-day period of review, excluding Saturdays, Sundays, legal holidays, and days of Council recess. If the Council does not approve or disapprove the proposed rules, by resolution, within this 45-day review period, the proposed rules shall be deemed disapproved.
(iii) Until the final rules have been adopted after approval by the Council pursuant to this paragraph and paragraph (1C)(F) of this subsection, government-assisted non-construction projects or contracts that receive government assistance totaling $5 million or more shall be subject to the hiring and reporting requirements set forth in paragraph (1) of this subsection.
(1C)(A) Once final rules have been adopted after Council approval pursuant to paragraph (1B) of this subsection and subparagraph (F) of this paragraph, the Mayor shall include these District hiring and reporting requirements in each government-assisted non-construction project or contract that receives government assistance totaling $5 million or more. These government-assisted non-construction projects or contracts shall be subject to the procedures set forth in this paragraph.
(B)(i) Bids and proposals responding to a solicitation for a government-assisted project or contract covered by this paragraph shall include an initial employment plan outlining the bidder or offeror’s strategy to meet the local hiring requirements as part of its response to the solicitation. These plans shall be evaluated and scored by the Mayor based on the criteria listed in sub-sub-subparagraphs (I), (II), and (III) of this sub-subparagraph. The evaluation shall be worth 10% of the overall score of the bid or proposal. The employment plan shall include the following:
(I) Descriptions of the health and retirement benefits provided to employees who worked on any of the bidder or offeror’s past 3 completed projects or contracts;
(II) A description of the bidder or offeror’s efforts to provide District residents with ongoing employment, training, and career advancement opportunities; and
(III) A disclosure of past compliance with the Workforce Act, where applicable, on projects or contracts completed within the past 2 years.
(ii) The winning bidder or offeror shall submit a revised employment plan to the Mayor for approval, before beginning work associated with the project or contract. The revised employment plan shall include:
(I) A projection of the total number of hours to be worked by full-time and part-time hourly wage employees on an annual basis by job category and the total number of hours to be worked by full-time and part-time hourly wage employees who are District residents;
(II) A projection of the total number of full-time and part-time salaried employees on an annual basis by job category and the total number of full-time and part-time salaried employees that will be District residents;
(III) A timetable outlining the total hours worked by full-time and part-time hourly wage employees by job category and the total number of full-time and part-time salaried employees by job category over the duration of the life of the hiring requirements set forth by the Department of Employment Services and an associated hiring schedule which predicts when specific job openings will be available;
(IV) Descriptions of the skill requirements, including industry-recognized certifications required for the different positions;
(V) A strategy to fill the District-resident hiring requirements, including whether the bidder plans to pursue potential community outreach partnerships with the University of the District of Columbia, the University of the District of Columbia Community College, the Department of Employment Services, or other government-approved, community-based job training providers;
(VI) A remediation strategy to ameliorate any problems associated with meeting these hiring requirements;
(VII) The designation of a senior official from the beneficiary who will be responsible for implementing the hiring and reporting requirements;
(VIII) Descriptions of the health and retirement benefits that will be provided to District residents working on the project or contract;
(IX) A strategy to hire graduates of District of Columbia Public Schools, District of Columbia public charter schools, and community-based job training providers, and hard-to-employ residents; and
(X) A disclosure of past compliance with the Workforce Act, where applicable, and the bidder or offeror’s general District hiring practices on projects or contracts completed within the past 2 years.
(iii) The Mayor shall require all beneficiaries of government-assisted projects or contracts covered by this paragraph that are not awarded through the contracting process to develop and submit to the Department of Employment Services the employment plan required in sub-subparagraph (ii) of this subparagraph.
(iv) Once approved, the employment plan required by sub-subparagraph (ii) of this subparagraph shall not be amended except with the approval of the Mayor.
(C) For the purpose of calculating hours worked and full-time and part-time salaried positions filled by District residents, beneficiaries covered by this paragraph may receive double credit for hours worked and for full-time and part-time salaried positions filled by District residents who are certified by the Department of Employment Services as hard to employ as long as they include the resident’s hard-to-employ certification as part of the monthly reporting. No more than 15% of the total hours worked and full-time and part-time salaried positions filled by hard-to-employ District residents may be comprised of double-credit hours or double-credit full-time and part-time salaried positions.
(D) For the purpose of calculating hours worked and full-time and part-time salaried positions filled by District residents, beneficiaries covered by this paragraph may count any hours worked and full-time and part-time salaried positions filled by District residents on other completed projects or contracts subject to and in excess of the Workforce Act’s hiring requirements that are certified by the Mayor.
(E) Within one year of the effective date of the rules approved by the Council pursuant to paragraph (1B) of this subsection, the Mayor shall review the hiring and reporting requirements set forth by this paragraph to determine the appropriateness of each percentage and make relevant findings of the determination in a report submitted to the Council. After the initial submission of this report the Mayor shall regularly, but at least once every 3 years, conduct a new review of the hiring and reporting requirements set forth by this paragraph to determine the appropriateness of each percentage and make relevant findings of the determination in a report submitted to the Council.
(F) Within 90 days of the effective date of the rules approved by the Council pursuant to paragraph (1B) of this subsection, the Mayor shall issue rules to implement the provisions of this paragraph. The proposed rules shall be submitted to the Council for a 45-day period of review, excluding Saturdays, Sundays, legal holidays, and days of Council recess. If the Council does not approve or disapprove the proposed rules, in whole or in part, by resolution within this 45-day review period, the proposed rules shall be deemed approved.
(2) With the submission of the final request for payment from the District, the beneficiary shall:
(A) Document in a report to the Mayor its compliance with paragraph (1), (1A), (1B), or (1C) of this subsection; or
(B) Submit a request to the Mayor for a waiver of compliance with paragraphs (1), (1A), (1B), or (1C) of this subsection, which shall include the following documentation:
(i) Material supporting a good-faith effort to comply;
(ii) Referrals provided by the Department of Employment Services and other referral sources; and
(iii) Advertisement of job openings listed with the Department of Employment Services and other referral sources.
(3)(A) The Mayor may waive the provisions of paragraph (1), (1A), (1B), or (1C) of this subsection if the Mayor finds that:
(i) The Department of Employment Services has certified that a good-faith effort to comply has been demonstrated by the beneficiary;
(ii)(I) The beneficiary is located outside of the Washington Standard Metropolitan Statistical Area;
(II) None of the contract work is performed inside the Washington Standard Metropolitan Statistical Area;
(III) The beneficiary published each job opening or part-time work needed for 7 calendar days in a District newspaper of city-wide circulation; and
(IV) The Department of Employment Services certifies that there are insufficient eligible applicants from the First Source Register that possess the skills required by the positions, or the eligible applicants are not available for part-time work or do not have a means to travel to the onsite job; or
(iii) The beneficiary enters into a special workforce development training or placement arrangement with the Department of Employment Services.
(B) The Department of Employment Services shall consider the following when making a determination of a good-faith effort to comply:
(i) Whether the Department of Employment Services has certified that there is an insufficient number of District residents in the labor market who possess the skills required to fill the positions that were created as a result of the project or contract;
(ii) Whether the beneficiary posted the jobs on the Department of Employment Services job website for a minimum of 10 calendar days;
(iii) Whether the beneficiary posted each job opening or part-time work needed in a District newspaper with city-wide circulation for a minimum of 7 calendar days;
(iv) Whether the beneficiary has substantially complied with the relevant monthly reporting requirements set forth in this section;
(v) For government-assisted projects or contracts covered by paragraph (1A) or (1C) of this subsection, whether the beneficiary has submitted and substantially complied with its most recent employment plan that has been approved by the Department of Employment Services; and
(vi) Any additional documented efforts.
(4)(A) Willful breach of the employment agreement, or failure to submit the required hiring compliance report pursuant to paragraph (1), (1A), (1B), or (1C) of this subsection, or deliberate submission of falsified data, shall be enforced by the Mayor through the imposition of a monetary fine of 5% of the total amount of the direct and indirect labor costs of the project or contract, in addition to other penalties provided by law.
(B) Failure to meet the required hiring requirements pursuant to paragraph (1), (1A), (1B), or (1C) of this subsection or failure to receive a good-faith waiver pursuant to paragraph (3) of this subsection may result in the Mayor imposing a penalty equal to 1/8 of 1% of the total amount of the direct and indirect labor costs of the project or contract for each percentage by which the beneficiary fails to meet the hiring requirements.
(C) Upon a second violation within a 10-year time frame of the required hiring or reporting requirements set forth within paragraphs (1), (1A), (1B), or (1C) of this subsection or failure to receive a good-faith waiver pursuant to paragraph (3) of this subsection, the Mayor shall debar a person or entity from consideration for award of contracts or subcontracts with the District of Columbia for a period of not more than 5 years.
(D) Upon a second violation within a 10-year time frame of the required hiring or reporting requirements set forth within paragraphs (1), (1A), (1B), or (1C) of this subsection or failure to receive a good-faith waiver pursuant to paragraph (3) of this subsection, the Mayor may deem a person or entity ineligible of consideration for government-assisted projects with the District of Columbia for a period of not more than 5 years.
(5) The beneficiary may appeal any decision of the Mayor regarding a contract pursuant to paragraph (4) of this subsection to the Contract Appeals Board. For those projects that are not awarded through the contracting process, the Mayor shall establish by rule an administrative appeals process that allows the beneficiary to appeal any decision of the Mayor pursuant to paragraph (4) of this subsection.
(6) The provisions of this subsection shall not apply to government-assisted projects or contracts entered into prior to September 6, 2001.
(f) Nonprofit organizations with 50 employees or less shall be exempt from subsection (e) of this section.
