Enforceability of Local Hire Preference Programs (2013) / Chapter Skim
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Pages 31-36
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From page 31... ...
31 Also, to a certain degree, negotiations cannot be effective without a certain amount of leverage or working political capital.440 Additionally, such agreements often benefit from the negotiating community coalitions being well-financed and having the financial resources to retain attorneys and experts to assist in the negotiating process with the developer.441 CBAs also tend to rest on politics rather than on law to monitor and enforce implementation, which can be burdensome for community organizations.442 Like most contracts tied to development, CBAs generally flourish under conditions of economic and urban growth.443 They depend upon the political leverage afforded to community residents through the planning process.444 Thus, community actors can hold up this process, but only before the development is constructed.445 Therefore, in the context of divestment and economic decline, CBAs are likely not as effective or viable. Los Angeles Sports and Entertainment District (Staples)
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32 agency's discrimination against nonresidents. The local hiring goal or percent set-aside should be based on the data and assessment carried out.463 Satisfying the high evidentiary burden may require that a significant amount of public resources be spent on gathering data.
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33 may also be used to supplement the government's showing but is insufficient by itself to justify a racial preference.482 A local hire program that is without substantial evidentiary support is unlikely to survive an Equal Protection Clause challenge. In addition to evidentiary support, a race-based preference must be narrowly tailored.483 Race-neutral alternatives should be considered and found ineffective prior to the implementation of a race-based preference.484 The preference should provide for flexibility in terms of providing waivers of the race-based preference if good faith efforts are exerted, or it should include other means of affording individualized treatment to contractors.485 The race-conscious preference should only include racial groups in that particular geographic area that have actually suffered discrimination in the context of a particular industry, like construction.486 In contrast, gender-based preferences can withstand an Equal Protection Clause challenge by establishing an "exceedingly persuasive justification" for the preference.487 A public agency should ensure it can support its preference on the basis of statistical and anecdotal evidence.
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34 Additionally political will and support behind the particular tool can be critical to whether a local hire initiative succeeds. Lastly, community involvement plays an integral role in negotiating contract-based tools.
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35 to deny employment to well-screened applicants and still demonstrate a good faith effort.504 It is also recommended that public agencies and community groups looking to implement a first source hiring agreement or program consider securing partnerships with labor unions that play an active role in the referral process, outreach programs, and work support providers -- those who offer both preemployment and post-employment services like resume preparation, interviewing skills and conflict resolution classes, childcare, job coaching, budget management, and advancement strategies. These services can bolster resident job retention and employability.505 Another important component of a successful first source hiring agreement is setting thresholds.
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From page 36... ...
36 community is more likely to be successful. First, given the variety of different community groups and coalitions working together to negotiate a CBA with a developer, it is recommended that these groups have adequate issue trainings so that each of the groups can become aware of the other's various priorities.519 This helps limit coalition politics from taking over the negotiation process and allows for a more united front.
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