HF 3531

as introduced - 82nd Legislature (2001 - 2002) Posted on 12/15/2009 12:00am

  1.1                          A bill for an act 
  1.2             relating to state employment; modifying the statewide 
  1.3             affirmative action program; amending Minnesota 
  1.4             Statutes 2000, sections 43A.02, subdivision 6a, by 
  1.5             adding subdivisions; 43A.19, subdivision 1; 43A.191. 
  1.6   BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.7      Section 1.  Minnesota Statutes 2000, section 43A.02, is 
  1.8   amended by adding a subdivision to read: 
  1.9      Subd. 1a.  [ADVERSE IMPACT.] "Adverse impact" means a 
  1.10  statistically significant disparity in rate of selection in 
  1.11  hiring, promotion, or other employment decisions compared to 
  1.12  nonprotected group members which works to the disadvantage of an 
  1.13  individual's race, sex, ethnic group, disability, or other 
  1.14  protected status. 
  1.15     Sec. 2.  Minnesota Statutes 2000, section 43A.02, is 
  1.16  amended by adding a subdivision to read: 
  1.17     Subd. 1b.  [ADVERSE IMPACT ANALYSIS.] "Adverse impact 
  1.18  analysis" means a series of calculations that measure the rates 
  1.19  at which females, minorities, and persons with disabilities are 
  1.20  selected for employment decisions compared to nonprotected 
  1.21  groups.  Adverse impact is indicated when there is a substantial 
  1.22  difference in the selection rate for females, minorities, or 
  1.23  persons with disabilities.  This analysis is used to determine 
  1.24  if a particular employment practice adversely affects a 
  1.25  protected class. 
  2.1      Sec. 3.  Minnesota Statutes 2000, section 43A.02, is 
  2.2   amended by adding a subdivision to read: 
  2.3      Subd. 2a.  [AGENCY HEAD.] "Agency head" means the ranking 
  2.4   or most senior individual assigned to the department, 
  2.5   commission, board, or institution. 
  2.6      Sec. 4.  Minnesota Statutes 2000, section 43A.02, is 
  2.7   amended by adding a subdivision to read: 
  2.8      Subd. 3a.  [ANNUAL GOAL.] "Annual goal" means an employment 
  2.9   target established by the commissioner in response to identified 
  2.10  underutilization of, or other employment problems relating to 
  2.11  women, minorities, or persons with disabilities in certain job 
  2.12  groups.  The agency agrees to make a good faith effort to 
  2.13  achieve the goals.  As part of the affirmative action plan, 
  2.14  goals must be expressed in both numbers and percentages. 
  2.15     Sec. 5.  Minnesota Statutes 2000, section 43A.02, 
  2.16  subdivision 6a, is amended to read: 
  2.17     Subd. 6a.  [AVAILABILITY.] "Availability" means the 
  2.18  percentage of women, minorities, and persons with disabilities 
  2.19  who have the skills required for entry into a specific group, or 
  2.20  who are capable of acquiring them. 
  2.21     Subd. 6b.  [BALANCED CLASS.] "Balanced class" means any 
  2.22  class in which no more than 80 percent of the incumbents are 
  2.23  male and no more than 70 percent of the incumbents are female.  
  2.24     Sec. 6.  Minnesota Statutes 2000, section 43A.02, is 
  2.25  amended by adding a subdivision to read: 
  2.26     Subd. 21a.  [EQUAL EMPLOYMENT OPPORTUNITY.] "Equal 
  2.27  employment opportunity" means administering all terms and 
  2.28  conditions of employment without regard to age, color, race, 
  2.29  national origin, ancestry, religion, gender, sexual orientation, 
  2.30  or disability. 
  2.31     Sec. 7.  Minnesota Statutes 2000, section 43A.02, is 
  2.32  amended by adding a subdivision to read: 
  2.33     Subd. 22b.  [GOALS ATTAINMENT.] "Goals attainment" means 
  2.34  the measurement of a facility's progress against established 
  2.35  goals for women, minorities, and persons with disabilities 
  2.36  moving into the job group during the affirmative action plan 
  3.1   (AAP) year.  The measurement is based on cumulative year-to-date 
  3.2   total, women, minority, and persons with disabilities counts of 
  3.3   those who have moved into a job group since the AAP was prepared.
  3.4      Sec. 8.  Minnesota Statutes 2000, section 43A.02, is 
  3.5   amended by adding a subdivision to read: 
  3.6      Subd. 22c.  [GOOD FAITH EFFORT.] "Good faith effort" means 
  3.7   the organization's effort to correct goals and reasonable action 
  3.8   steps to be taken to correct specific problem areas. 
  3.9      Sec. 9.  Minnesota Statutes 2000, section 43A.02, is 
  3.10  amended by adding a subdivision to read: 
  3.11     Subd. 24a.  [JOB GROUP.] "Job group" means one or a group 
  3.12  of jobs having similar content (duties of the position, the 
  3.13  technical expertise required to do the job), wage rates, and 
  3.14  opportunities.  Positions in job groups do not normally cross 
  3.15  EEO categories. 
  3.16     Sec. 10.  Minnesota Statutes 2000, section 43A.02, is 
  3.17  amended by adding a subdivision to read: 
  3.18     Subd. 28a.  [MINORITY.] "Minority" means all persons 
  3.19  classified as Black (not of Hispanic origin), Hispanic, Asian or 
  3.20  Pacific Islander, American Indian, or Alaskan Native. 
  3.21     Sec. 11.  Minnesota Statutes 2000, section 43A.02, is 
  3.22  amended by adding a subdivision to read: 
  3.23     Subd. 29a.  [OUTREACH.] "Outreach" means reaching out 
  3.24  through various means to communities and organizations to 
  3.25  enhance the reputation of the state as an employer and sending a 
  3.26  clear message that the state strives to create a workplace 
  3.27  culture that attracts and supports diversity, and in which all 
  3.28  employees feel safe and are encouraged to thrive in an 
  3.29  environment where open and honest communication, respect, and 
  3.30  trust are the norm and where everyone can contribute naturally 
  3.31  to the organization. 
  3.32     Sec. 12.  Minnesota Statutes 2000, section 43A.02, is 
  3.33  amended by adding a subdivision to read: 
  3.34     Subd. 31a.  [PREHIRE REVIEW.] "Prehire review" means a 
  3.35  formal process at the agency level that is designed to justify 
  3.36  why a protected class applicant is not hired when a need exist 
  4.1   in the affirmative action plan and as further outlined in 
  4.2   procedures that will be published periodically. 
  4.3      Sec. 13.  Minnesota Statutes 2000, section 43A.02, is 
  4.4   amended by adding a subdivision to read: 
  4.5      Subd. 34a.  [RACIAL MINORITY.] "Racial minority" means a 
  4.6   protected class, members of which have been defined by the Equal 
  4.7   Employment Opportunity Commission as American Indian/Alaskan 
  4.8   Native, Asian/Pacific Islanders, Black, or Hispanic. 
  4.9      Sec. 14.  Minnesota Statutes 2000, section 43A.02, is 
  4.10  amended by adding a subdivision to read: 
  4.11     Subd. 38a.  [TWO-FACTOR ANALYSIS.] "Two-factor analysis" 
  4.12  means the process that estimates how many women, minorities, and 
  4.13  persons with disabilities are available for employment.  The 
  4.14  percentages this analysis produces are the benchmarks against 
  4.15  which the employer's utilization of women, minorities, and 
  4.16  persons with disabilities are measured. 
  4.17     Sec. 15.  Minnesota Statutes 2000, section 43A.02, is 
  4.18  amended by adding a subdivision to read: 
  4.19     Subd. 41.  [WORKFORCE ANALYSIS.] "Workforce analysis" means 
  4.20  a snapshot of the organization by departments at a point in 
  4.21  time, used to identify pockets where certain groups are 
  4.22  concentrated or underrepresented by departments. 
  4.23     Sec. 16.  Minnesota Statutes 2000, section 43A.02, is 
  4.24  amended by adding a subdivision to read: 
  4.25     Subd. 42.  [WORKFORCE MANAGEMENT PLAN.] "Workforce 
  4.26  management plan" means a document that provides a "snapshot" 
  4.27  description of the organization's workforce at a given time.  
  4.28  The document provides a general discussion and description of 
  4.29  the job groups identified as critical to government operations 
  4.30  and also focuses on retirement trends and succession planning. 
  4.31     Sec. 17.  Minnesota Statutes 2000, section 43A.02, is 
  4.32  amended by adding a subdivision to read: 
  4.33     Subd. 43.  [WORKFORCE PLANNING.] "Workforce planning" means 
  4.34  a deliberate, coordinated, ongoing process to ensure the 
  4.35  availability of adequate numbers of candidates with requisite 
  4.36  skills to accomplish the core functions and overall mission of 
  5.1   state service.  This process includes planning and managing for 
  5.2   the lag between recognizing the need for fully qualified 
  5.3   individuals, identifying and hiring those individuals, and 
  5.4   training them at the appropriate level and time. 
  5.5      Sec. 18.  Minnesota Statutes 2000, section 43A.19, 
  5.6   subdivision 1, is amended to read: 
  5.7      Subdivision 1.  [STATEWIDE EQUAL EMPLOYMENT OPPORTUNITY AND 
  5.8   AFFIRMATIVE ACTION PROGRAM.] (a) To assure that positions in the 
  5.9   executive branch of the civil service are equally accessible to 
  5.10  all qualified persons, and to eliminate through affirmative 
  5.11  action the underutilization of qualified members of protected 
  5.12  groups, the commissioner shall adopt and periodically revise, if 
  5.13  necessary, a the statewide affirmative action program.  
  5.14  The affirmative action plan is an essential component of the 
  5.15  statewide affirmative action program and must consist of at 
  5.16  least the following: 
  5.17     (1) objectives, goals, and policies; 
  5.18     (2) procedures, standards, and assumptions to be used by 
  5.19  agencies in the preparation of agency reaching goals identified 
  5.20  by affirmative action plans, including methods by which goals 
  5.21  and timetables are established; 
  5.22     (3) the analysis of separation patterns to determine the 
  5.23  impact on protected group members; and 
  5.24     (4) requirements for annual objectives and submission of 
  5.25  affirmative action progress reports from heads of agencies; and 
  5.26     (5) the analysis of applicant pools and selection processes 
  5.27  to determine the impact on protected group members. 
  5.28     (b) The commissioner shall base affirmative action goals on 
  5.29  at least the following factors: 
  5.30     (1) the percentage of members of each protected class 
  5.31  minorities, women, and persons with disabilities that have the 
  5.32  requisite skills in the reasonable recruiting area population 
  5.33  who have the necessary skills;.  The reasonable recruiting area 
  5.34  is defined as the geographical area from which the agency 
  5.35  usually seeks or reasonably could seek workers to fill 
  5.36  positions; and 
  6.1      (2) the availability for promotion or transfer of members 
  6.2   of protected classes in the recruiting area 
  6.3   population; percentage of minorities, women, and persons with 
  6.4   disabilities among those promotable, transferable, and trainable 
  6.5   within the organization.  Trainable refers to those employees 
  6.6   within the state service who could, with appropriate training 
  6.7   which the state is able to provide or sponsor, become promotable 
  6.8   or transferable within the next 12 months. 
  6.9      (3) the extent of unemployment of members of protected 
  6.10  classes in the recruiting area population; 
  6.11     (4) the existence of training programs in needed skill 
  6.12  areas offered by employing agencies and other institutions; and 
  6.13     (5) the expected number of available positions to be filled.
  6.14     (c) The commissioner shall designate a state director of 
  6.15  diversity and equal employment opportunity who may be delegated 
  6.16  the preparation, revision, implementation, and administration of 
  6.17  the program.  The commissioner of employee relations may place 
  6.18  the director's position in the unclassified service if the 
  6.19  position meets the criteria established in section 43A.08, 
  6.20  subdivision 1a. 
  6.21     Sec. 19.  Minnesota Statutes 2000, section 43A.191, is 
  6.22  amended to read: 
  6.23     43A.191 [AGENCY EQUAL EMPLOYMENT OPPORTUNITY AND 
  6.24  AFFIRMATIVE ACTION PROGRAMS.] 
  6.25     Subdivision 1.  [AFFIRMATIVE ACTION PLAN.] On the 
  6.26  even-numbered year of each biennium, the commissioner shall 
  6.27  prepare an affirmative action plan for the executive branch.  
  6.28  Affirmative action goals will be updated annually.  Agency heads 
  6.29  are accountable for administering their agency's equal 
  6.30  employment opportunity and affirmative action program. 
  6.31     Subd. 2.  [AFFIRMATIVE ACTION OFFICERS.] (a) Each agency 
  6.32  with 1,000 employees or more shall have at least one full-time 
  6.33  affirmative action officer, who shall have primary 
  6.34  responsibility for developing and maintaining implementing plans 
  6.35  for addressing areas of underutilization identified by the 
  6.36  agency's affirmative action plan.  The officer shall devote full 
  7.1   time to affirmative action activities, to include but not 
  7.2   limited to internal audits, recruiting, retention, outreach, and 
  7.3   workforce planning initiatives.  The affirmative action officer 
  7.4   shall be an active participant in the development and 
  7.5   implementation of the workforce management plan.  The 
  7.6   affirmative action officer shall report administratively and on 
  7.7   policy issues directly to the agency head. 
  7.8      (b) The agency heads shall assign affirmative action 
  7.9   officers or designees for agencies with fewer than 1,000 
  7.10  employees.  The designees shall report administratively and on 
  7.11  policy issues directly to the agency head. 
  7.12     (c) An agency may not use authority under section 43A.08, 
  7.13  subdivision 1a, to place the position of an agency affirmative 
  7.14  action officer or designee in the unclassified service. 
  7.15     Subd. 3.  [AMERICANS WITH DISABILITIES ACT (ADA) 
  7.16  COORDINATORS.] Each agency shall designate an ADA coordinator 
  7.17  who shall have primary responsibility for working with agency 
  7.18  staff to monitor, coordinate, and resolve issues related to 
  7.19  reasonable accommodation requests, ADA title 2 compliance, and 
  7.20  all other ADA compliance issues. 
  7.21     Subd. 2.  Subd. 4.  [AGENCY AFFIRMATIVE ACTION WORKFORCE 
  7.22  MANAGEMENT PLANS.] (a) The head of each agency in the executive 
  7.23  branch shall prepare and implement an agency affirmative action 
  7.24  a workforce management plan to address the underutilization 
  7.25  identified by the affirmative action plan consistent with this 
  7.26  section and rules issued under section 43A.04, subdivision 3. 
  7.27     (b) The agency workforce management plan must include a 
  7.28  plan for the provision of reasonable accommodation in the hiring 
  7.29  and promotion of qualified disabled persons.  The an analysis of 
  7.30  anticipated vacancies in the agency for at least the next 24 
  7.31  months and detailed recruitment, retention, and training plans 
  7.32  to address the underutilization.  The plan must also include a 
  7.33  complaint procedure for applicants and employees. 
  7.34     (c) The agency workforce management plan must also include 
  7.35  measures for providing reasonable accommodation plan in the 
  7.36  hiring and promotion of qualified persons with disabilities.  
  8.1   The measures to ensure reasonable accommodations must consist of 
  8.2   at least the following: 
  8.3      (1) procedures for compliance with section 363.03 and, 
  8.4   where appropriate, regulations implementing United States Code, 
  8.5   title 29, section 794, as amended through December 31, 1984, 
  8.6   which is section 504 of the Rehabilitation Act of 1973, as 
  8.7   amended and the Americans with Disabilities Act, United States 
  8.8   Code, title 42, sections 101 to 108, 201 to 231, 241 to 246, 
  8.9   401, 402, and 501 to 514; 
  8.10     (2) methods and procedures for providing reasonable 
  8.11  accommodation for disabled job applicants with disabilities, 
  8.12  current employees, and employees seeking promotion; and 
  8.13     (3) provisions for funding reasonable accommodations. 
  8.14     (c) The agency plan must be prepared by the agency head 
  8.15  with the assistance of the agency affirmative action officer and 
  8.16  the director of diversity and equal employment opportunity.  The 
  8.17  council on disability shall provide assistance with the agency 
  8.18  reasonable accommodation plan.  (d) The statewide ADA program 
  8.19  coordinator must periodically coordinate with the council on 
  8.20  disability regarding reasonable accommodation plans and other 
  8.21  related issues. 
  8.22     (d) (e) The agency workforce management plan must identify 
  8.23  any positions in the agency that can be used for supported 
  8.24  employment as defined in section 268A.01, subdivision 13, of 
  8.25  persons with severe disabilities.  The agency shall report this 
  8.26  information to the commissioner annually.  An agency that hires 
  8.27  more than one supported worker in the identified positions must 
  8.28  receive recognition for each supported worker toward meeting the 
  8.29  agency's affirmative action goals and objectives. 
  8.30     (e) (f) The relationship between the affirmative action 
  8.31  plan and the workforce management plan creates a two-part 
  8.32  affirmative action plan.  The commissioner has primary 
  8.33  responsibility for the affirmative action plan and the head of 
  8.34  the agency is responsible for the workforce management plan.  
  8.35  This two-part approach ensures that underutilizations are 
  8.36  identified and that action-oriented programs are designed to 
  9.1   correct identified problems and attain established goals.  An 
  9.2   agency affirmative action workforce management plan may not be 
  9.3   implemented without the commissioner's approval. 
  9.4      Subd. 3. Subd. 5.  [AUDITS; SANCTIONS AND INCENTIVES.] (a) 
  9.5   The commissioner shall annually audit the record of each agency 
  9.6   to determine the rate of compliance with affirmative action and 
  9.7   workforce planning requirements. 
  9.8      (b) By March 1 of each odd-numbered year, the commissioner 
  9.9   shall submit a report on affirmative action progress of each 
  9.10  agency and the state as a whole to the governor and to the 
  9.11  finance committee of the senate, the ways and means committee of 
  9.12  the house of representatives, the governmental operations 
  9.13  committees of both houses of the legislature, and the 
  9.14  legislative commission on employee relations.  The report must 
  9.15  include noncompetitive appointments made under section 43A.08, 
  9.16  subdivision 2a, or 43A.15, subdivisions 3 to 13, and cover each 
  9.17  agency's rate of compliance with affirmative action requirements.
  9.18     (c) An agency that does not meet its hiring goals and fails 
  9.19  to demonstrate a good faith effort to recruit protected group 
  9.20  members must justify its nonaffirmative action hires in 
  9.21  competitive and noncompetitive appointments according to 
  9.22  criteria issued by the department of employee 
  9.23  relations.  "Missed opportunity" includes failure to justify a 
  9.24  nonaffirmative action hire.  An agency must have 25 percent or 
  9.25  less missed opportunities in competitive appointments and 25 
  9.26  percent or less missed opportunities in appointments made under 
  9.27  sections 43A.08, subdivisions 1, clauses (9), (11), and (16); 
  9.28  and 2a; and 43A.15, subdivisions 3, 10, 12, and 13.  In 
  9.29  addition, an agency shall: 
  9.30     (1) demonstrate a good faith effort to recruit protected 
  9.31  group members by following an active recruitment plan; 
  9.32     (2) implement a coordinated retention plan; and 
  9.33     (3) have an established complaint resolution procedure. 
  9.34     (d) The commissioner shall develop reporting standards and 
  9.35  procedures for measuring compliance.  The commissioner will use 
  9.36  adverse impact analysis at least annually (focusing on 
 10.1   applicants, hires, promotions, and attrition) to ensure agency 
 10.2   accountability and program integrity.  Agencies and 
 10.3   organizations that fail to show measurable progress in reducing 
 10.4   underutilization and fail to demonstrate a good faith effort 
 10.5   will be determined by the commissioner to be out of compliance 
 10.6   with the statewide equal employment and affirmative action 
 10.7   program. 
 10.8      (e) An agency is Agencies are encouraged to develop other 
 10.9   innovative ways to promote awareness, acceptance, and 
 10.10  appreciation for diversity, equal employment opportunity and 
 10.11  affirmative action.  These innovations will be considered when 
 10.12  evaluating an agency's compliance with this section. 
 10.13     (f) An agency Agencies not in compliance with affirmative 
 10.14  action requirements of this section must identify methods and 
 10.15  programs to improve performance, to reallocate resources 
 10.16  internally in order to increase support for affirmative action 
 10.17  programs, and to submit program and resource reallocation 
 10.18  proposals to the commissioner for approval.  An agency Agencies 
 10.19  must submit these proposals within 120 30 days of being notified 
 10.20  by the commissioner that it is they are out of compliance with 
 10.21  affirmative action requirements.  The commissioner shall monitor 
 10.22  quarterly the affirmative action programs of an agency found to 
 10.23  be out of compliance.  At a minimum, this monitoring process 
 10.24  will include the use of adverse impact analysis to track agency 
 10.25  progress in the deficient areas. 
 10.26     (g) The commissioner shall establish a program to recognize 
 10.27  an agency that has made significant and measurable progress in 
 10.28  implementing an affirmative action plan.  
 10.29     Subd. 6.  [INTERNAL AUDIT REQUIREMENTS.] (a) Agencies shall 
 10.30  monitor at all levels applicants, placements, promotions, and 
 10.31  terminations by race, sex, and disability status by job category 
 10.32  or group.  This information will be provided to the commissioner 
 10.33  at least annually or more often if requested by the commissioner.
 10.34     (b) In addition, agencies shall collect applicant 
 10.35  demographic data as outlined in the Uniform Guidelines on 
 10.36  Employee Selection.