[Title 20 CFR ]
[Code of Federal Regulations (annual edition) - April 1, 2015 Edition]
[From the U.S. Government Publishing Office]
[[Page i]]
Title 20
Employees' Benefits
________________________
Parts 500 to 656
Revised as of April 1, 2014
Containing a codification of documents of general
applicability and future effect
As of April 1, 2014
Published by the Office of the Federal Register
National Archives and Records Administration as a
Special Edition of the Federal Register
[[Page ii]]
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Table of Contents
Page
Explanation................................................. v
Title 20:
Chapter IV--Employees' Compensation Appeals Board,
Department of Labor 3
Chapter V--Employment and Training Administration,
Department of Labor 11
Finding Aids:
Table of CFR Titles and Chapters........................ 567
Alphabetical List of Agencies Appearing in the CFR...... 587
List of CFR Sections Affected........................... 597
[[Page iv]]
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Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 20 CFR 501.1 refers
to title 20, part 501,
section 1.
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[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
volume.
LEGAL STATUS
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HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual
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To determine whether a Code volume has been amended since its
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Each volume of the Code contains amendments published in the Federal
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collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
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(a) The incorporation will substantially reduce the volume of
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(b) The matter incorporated is in fact available to the extent
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(c) The incorporating document is drafted and submitted for
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alphabetical list of agencies publishing in the CFR are also included in
this volume.
[[Page vii]]
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Charles A. Barth,
Director,
Office of the Federal Register.
April 1, 2014.
[[Page ix]]
THIS TITLE
Title 20--Employees' Benefits is composed of four volumes. The first
volume, containing parts 1-399, includes current regulations issued by
the Office of Workers' Compensation Programs, Department of Labor and
the Railroad Retirement Board. The second volume, containing parts 400-
499, includes all current regulations issued by the Social Security
Administration. The third volume, containing parts 500 to 656, includes
current regulations issued by the Employees' Compensation Appeals Board,
and the Employment and Training Administration. The fourth volume,
containing part 657 to End, includes the current regulations issued by
the Office of Workers' Compensation Programs, the Benefits Review Board,
the Office of the Assistant Secretary for Veterans' Employment and
Training Service (all of the Department of Labor) and the Joint Board
for the Enrollment of Actuaries. The contents of these volumes represent
all current regulations codified under this title of the CFR as of April
1, 2014.
An index to chapter III appears in the second volume.
For this volume, Cheryl E. Sirofchuck was Chief Editor. The Code of
Federal Regulations publication program is under the direction of the
Managing Editor, assisted by Ann Worley.
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TITLE 20--EMPLOYEES' BENEFITS
(This book contains parts 500 to 656)
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Part
chapter iv--Employees' Compensation Appeals Board,
Department of Labor....................................... 501
chapter v--Employment and Training Administration,
Department of Labor....................................... 601
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CHAPTER IV--EMPLOYEES' COMPENSATION APPEALS BOARD, DEPARTMENT OF LABOR
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Part Page
500 [Reserved]
501 Rules of procedure.......................... 5
502-599 [Reserved]
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PART 500 [RESERVED]
PART 501_RULES OF PROCEDURE
Sec.
501.1 Definitions.
501.2 Scope and applicability of rules; composition and jurisdiction of
the Board.
501.3 Notice of appeal.
501.4 Case record; inspection; submission of pleadings and motions.
501.5 Oral argument.
501.6 Decisions and orders.
501.7 Petition for reconsideration.
501.8 Clerk of the Office of the Appellate Boards; docket of
proceedings; records.
501.9 Representation; appearances and fees.
Authority: Federal Employees' Compensation Act (FECA), 5 U.S.C. 8101
et seq.
Source: 73 FR 62193, Oct. 20, 2008, unless otherwise noted.
Sec. 501.1 Definitions.
(a) FECA means the Federal Employees' Compensation Act, 5 U.S.C.
8101 et seq. and any statutory extension or application thereof.
(b) The Board means the Employees' Compensation Appeals Board.
(c) Chief Judge and Chairman of the Board means the Chairman of the
Employees' Compensation Appeals Board.
(d) Judge or Alternate Judge means a member designated and appointed
by the Secretary of Labor with authority to hear and make final
decisions on appeals taken from determinations and awards by the OWCP in
claims arising under the FECA.
(e) OWCP means the Office of Workers' Compensation Programs,
Employment Standards Administration, U.S. Department of Labor.
(f) Director means the Director of the Office of Workers'
Compensation Programs or a person delegated authority to perform the
functions of the Director. The Director of OWCP is represented before
the Board by an attorney designated by the Solicitor of Labor.
(g) Appellant means any person adversely affected by a final
decision or order of the OWCP who files an appeal to the Board.
(h) Representative means an individual properly authorized by an
Appellant in writing to act for the Appellant in connection with an
appeal before the Board. The Representative may be any individual or an
attorney who has been admitted to practice and who is in good standing
with any court of competent jurisdiction.
(i) Decision, as prescribed by 5 U.S.C. 8149 of the FECA, means the
final determinative action made by the Board on appeal of a claim.
(j) Clerk or Office of the Clerk means the Clerk of the Office of
the Appellate Boards.
Sec. 501.2 Scope and applicability of rules; composition and
jurisdiction of the Board.
(a) The regulations in this part establish the Rules of Practice and
Procedure governing the operation of the Employees' Compensation Appeals
Board.
(b) The Board consists of three permanent judges, one of whom is
designated as Chief Judge and Chairman of the Board, and such alternate
judges as are appointed by the Secretary of Labor. The Chief Judge is
the administrative officer of the Board. The functions of the Board are
quasi-judicial. For organizational purposes, the Board is placed in the
Office of the Secretary of Labor and sits in Washington, DC.
(c) The Board has jurisdiction to consider and decide appeals from
final decisions of OWCP in any case arising under the FECA. The Board
may review all relevant questions of law, fact and exercises of
discretion (or failure to exercise discretion) in such cases.
(1) The Board's review of a case is limited to the evidence in the
case record that was before OWCP at the time of its final decision.
Evidence not before OWCP will not be considered by the Board for the
first time on appeal.
(2) There will be no appeal with respect to any interlocutory matter
decided (or not decided) by OWCP during the pendency of a case.
(3) The Board and OWCP may not exercise simultaneous jurisdiction
over the same issue in a case on appeal. Following the docketing of an
appeal before the Board, OWCP does not retain jurisdiction to render a
further decision regarding the issue on appeal until after the Board
relinquishes jurisdiction.
[[Page 6]]
Sec. 501.3 Notice of Appeal.
(a) Who may file. Any person adversely affected by a final decision
of the Director, or his or her authorized Representative, may file for
review of such decision by the Board.
(b) Place of filing. The notice of appeal shall be filed with the
Clerk at 200 Constitution Avenue, NW., Washington, DC 20210.
(c) Content of notice of appeal. A notice of appeal shall contain
the following information:
(1) Date of Appeal.
(2) Full name, address and telephone number of the Appellant and the
full name of any deceased employee on whose behalf an appeal is taken.
In addition, the Appellant must provide a signed authorization
identifying the full name, address and telephone number of his or her
Representative, if applicable.
(3) Employing establishment, and the date, description and place of
injury.
(4) Date and Case File Number assigned by OWCP concerning the
decision being appealed to the Board.
(5) A statement explaining Appellant's disagreement with OWCP's
decision and stating the factual and/or legal argument in favor of the
appeal.
(6) Signature: An Appellant must sign the notice of appeal.
(d) Substitution of appellant: Should the Appellant die after having
filed an appeal with the Board, the appeal may proceed to decision
provided there is the substitution of a proper Appellant who requests
that the appeal proceed to decision by the Board.
(e) Time limitations for filing. Any notice of appeal must be filed
within 180 days from the date of issuance of a decision of the OWCP. The
Board maintains discretion to extend the time period for filing an
appeal if an applicant demonstrates compelling circumstances. Compelling
circumstances means circumstances beyond the Appellant's control that
prevent the timely filing of an appeal and does not include any delay
caused by the failure of an individual to exercise due diligence in
submitting a notice of appeal.
(f) Date of filing. A notice of appeal complying with paragraph (c)
of this section is considered to have been filed only if received by the
Clerk by the close of business within the period specified under
paragraph (e) of this section, except as otherwise provided in this
subsection:
(1) If the notice of appeal is sent by United States Mail or
commercial carrier and use of the date of delivery as the date of filing
would result in a loss of appeal rights, the appeal will be considered
to have been filed as of the date of postmark or other carriers' date
markings. The date appearing on the U.S. Postal Service postmark or
other carriers' date markings (when available and legible) shall be
prima facie evidence of the date of mailing. If there is no such
postmark or date marking or it is not legible, other evidence, such as,
but not limited to, certified mail receipts, certificate of service and
affidavits, may be used to establish the mailing date. If a notice of
appeal is delivered or sent by means other than United States Mail or
commercial carrier, including personal delivery or fax, the notice is
deemed to be received when received by the Clerk.
(2) In computing the date of filing, the 180 day time period for
filing an appeal begins to run on the day following the date of the OWCP
decision. The last day of the period so computed shall be included,
unless it is a Saturday, Sunday or Federal holiday, in which event the
period runs to the close of the next business day.
(g) Failure to timely file a notice of appeal. The failure of an
Appellant or Representative to file an appeal with the Board within the
period specified under paragraph (e) of this section, including any
extensions granted by the Board in its discretion based upon compelling
circumstances, will foreclose all right to review. The Board will
dismiss any untimely appeal for lack of jurisdiction.
(h) Incomplete notice of appeal. Any timely notice of appeal that
does not contain the information specified in paragraph (c) of this
section will be considered incomplete. On receipt by the Board, the
Clerk will inform Appellant of the deficiencies in the notice of appeal
and specify a reasonable time to submit the requisite information. Such
appeal will be dismissed unless Appellant provides the requisite
information in the time specified by the Clerk.
[[Page 7]]
Sec. 501.4 Case record; inspection; submission of pleadings and
motions.
(a) Service on OWCP and transmission of OWCP case record. The Board
shall serve upon the Director a copy of each notice of appeal and
accompanying documents. Within 60 days from the date of such service,
the Director shall provide to the Board the record of the OWCP
proceeding to which the notice refers. On application of the Director,
the Board may, in its discretion, extend the time period for submittal
of the OWCP case record.
(b) Inspection of record. The case record on appeal is an official
record of the OWCP.
(1) Upon written application to the Clerk, an Appellant may request
inspection of the OWCP case record. At the discretion of the Board, the
OWCP case record may either be made available in the Office of the Clerk
of the Appellate Boards for inspection by the Appellant, or the request
may be forwarded to the Director so that OWCP may make a copy of the
OWCP case record and forward this copy to the Appellant. Inspection of
the papers and documents included in the OWCP case record of any appeal
pending before the Board will be permitted or denied in accordance with
5 CFR 10.10 to 10.13. The Chief Judge (or his or her designee) shall
serve as the disclosure officer for purposes of Appendix A to 29 CFR
Parts 70 and 71.
(2) Copies of the documents generated in the course of the appeal
before the Board will be provided to the Appellant and Appellant's
Representative by the Clerk. If the Appellant needs additional copies of
such documents while the appeal is pending, the Appellant may obtain
this information by contacting the Clerk. Pleadings and motions filed
during the appeal in proceedings before the Board will be made part of
the official case record of the OWCP.
(c) Pleadings. The Appellant, the Appellant's Representative and the
Director may file pleadings supporting their position and presenting
information, including but not limited to briefs, memoranda of law,
memoranda of justification, and optional form AB-1. All pleadings filed
must contain the docket number and be filed with the Clerk. The Clerk
will issue directions specifying the time allowed for any responses and
replies.
(1) The Clerk will distribute copies of any pleading received by the
Clerk to ensure that the Appellant, his or her Representative and the
Director receive all pleadings. Any pleading should be submitted within
60 days of the filing of an appeal. The Board may, in its discretion,
extend the time period for the submittal of any pleading.
(2) Proceedings before the Board are informal and there is no
requirement that any pleading be filed. Failure to submit a pleading or
to timely submit a pleading does not prejudice the rights of either the
Appellant or the Director.
(3) Upon receipt of a pleading, the Appellant and the Director will
have the opportunity to submit a response to the Board.
(d) Motions. Motions are requests for the Board to take specific
action in a pending appeal. Motions include, but are not limited to,
motions to dismiss, affirm the decision below, remand, request a
substitution, request an extension of time, or other such matter as may
be brought before the Board. Motions may be filed by the Appellant, the
Appellant's Representative and the Director. The motion must be in
writing, contain the docket number, state the relief requested and the
basis for the relief requested, and be filed with the Clerk. Any motion
received will be sent by the Clerk to ensure that the Appellant, his or
her Representative and the Director receive all motions. The Clerk will
issue directions specifying the timing of any responses and replies. The
Board also may act on its own to issue direction in pending appeals,
stating the basis for its determination.
(e) Number of copies. All filings with the Board, including any
notice of appeal, pleading, or motion shall include an original and two
(2) legible copies.
Sec. 501.5 Oral argument.
(a) Oral argument. Oral argument may be held in the discretion of
the Board, on its own determination or on application by Appellant or
the Director.
(b) Request. A request for oral argument must be submitted in
writing to
[[Page 8]]
the Clerk. The application must specify the issue(s) to be argued and
provide a statement supporting the need for oral argument. The request
must be made no later than 60 days after the filing of an appeal. Any
appeal in which a request for oral argument is not granted by the Board
will proceed to a decision based on the case record and any pleadings
submitted.
(c) Notice of argument. If a request for oral argument is granted,
the Clerk will notify the Appellant and the Director at least 30 days
before the date set for argument. The notice of oral argument will state
the issues that the Board has determined will be heard.
(d) Time allowed. Appellant and any Representative for the Director
shall be allowed no more than 30 minutes to present oral argument. The
Board may, in its discretion, extend the time allowed.
(e) Appearances. An Appellant may appear at oral argument before the
Board or designate a Representative. Argument shall be presented by the
Appellant or a Representative, not both. The Director may be represented
by an attorney with the Solicitor of Labor. Argument is limited to the
evidence of record on appeal.
(f) Location. Oral argument is heard before the Board only in
Washington, DC. The Board does not reimburse costs associated with
attending oral argument.
(g) Continuance. Once oral argument has been scheduled by the Board,
a continuance will not be granted except on a showing of good cause.
Good cause may include extreme hardship or where attendance by an
Appellant or Representative is mandated at a previously scheduled
judicial proceeding. Any request for continuance must be received by the
Board at least 15 days before the date scheduled for oral argument and
be served by the requester upon Appellant and the Director. No request
for a second continuance will be entertained by the Board. In such case,
the appeal will proceed to a decision based on the case record. The
Board may reschedule or cancel oral argument on its own motion at any
time.
(h) Nonappearance. The absence of an Appellant, his or her
Representative, or the Director at the time and place set for oral
argument will not delay the Board's resolution of an appeal. In such
event, the Board may, in its discretion, reschedule oral argument, or
cancel oral argument and treat the case as submitted on the case record.
Sec. 501.6 Decisions and orders.
(a) Decisions. A decision of the Board will contain a written
opinion setting forth the reasons for the action taken and an
appropriate order. The decision is based on the case record, all
pleadings and any oral argument. The decision may consist of an
affirmance, reversal or remand for further development of the evidence,
or other appropriate action.
(b) Panels. A decision of not less than two judges will be the
decision of the Board.
(c) Issuance. The date of the Board's decision is the date of
issuance or such date as determined by the Board. Issuance is not
determined by the postmark on any letter containing the decision or the
date of actual receipt by Appellant or the Director.
(d) Finality. The decisions and orders of the Board are final as to
the subject matter appealed, and such decisions and orders are not
subject to review, except by the Board. The decisions and orders of the
Board will be final upon the expiration of 30 days from the date of
issuance unless the Board has fixed a different period of time therein.
Following the expiration of that time, the Board no longer retains
jurisdiction over the appeal unless a timely petition for
reconsideration is submitted and granted.
(e) Dispositive orders. The Board may dispose of an appeal on a
procedural basis by issuing an appropriate order disposing of part or
all of a case prior to reaching the merits of the appeal. The Board may
proceed to an order on its own or on the written motion of Appellant or
the Director.
(f) Service. The Board will send its decisions and orders to the
Appellant, his or her Representative and the Director at the time of
issuance.
Sec. 501.7 Petition for reconsideration.
(a) Time for filing. The Appellant or the Director may file a
petition for reconsideration of a decision or order
[[Page 9]]
issued by the Board within 30 days of the date of issuance, unless
another time period is specified in the Board's order.
(b) Where to File. The petition must be filed with the Clerk. Copies
will be sent by the Clerk to the Director, the Appellant and his or her
Representative in the time period specified by the Board.
(c) Content of petition. The petition must be in writing. The
petition must contain the docket number, specify the matters claimed to
have been erroneously decided, provide a statement of the facts upon
which the petitioner relies, and a discussion of applicable law. New
evidence will not be considered by the Board in a petition for
reconsideration.
(d) Panel. The panel of judges who heard and decided the appeal will
rule on the petition for reconsideration. If any member of the original
panel is unavailable, the Chief Judge may designate a new panel member.
The decision or order of the Board will stand as final unless vacated or
modified by the vote of at least two members of the reconsideration
panel.
(e) Answer. Upon the filing of a petition for reconsideration,
Appellant or the Director may file an answer to the petition within such
time as fixed by the Board.
(f) Oral argument and decision on reconsideration. An oral argument
may be allowed at the discretion of the Board upon application of the
Appellant or Director or the Board may proceed to address the matter
upon the papers filed. The Board shall grant or deny the petition for
reconsideration and issue such orders as it deems appropriate.
Sec. 501.8 Clerk of the Office of the Appellate Boards; docket of
proceedings; records.
(a) Location and business hours. The Office of the Clerk of the
Appellate Boards is located at 200 Constitution Avenue, NW., Washington,
DC 20210. The Office of the Clerk is open during business hours on all
days except Saturdays, Sundays and Federal holidays, from 8:30 a.m. to 5
p.m.
(b) Docket. The Clerk will maintain a docket containing a record of
all proceedings before the Board. Each docketed appeal will be assigned
a number in chronological order based upon the date on which the notice
of appeal is received. While the Board generally hears appeals in the
order docketed, the Board retains discretion to change the order in
which a particular appeal will be considered. The Clerk will prepare a
calendar of cases submitted or awaiting oral argument and such other
records as may be required by the Board.
(c) Publication of decisions. Final decisions of the Board will be
published in such form as to be readily available for inspection by the
general public.
Sec. 501.9 Representation; appearances and fees.
(a) Representation. In any proceeding before the Board, an Appellant
may appear in person or by appointing a duly authorized individual as
his or her Representative.
(1) Counsel. The designated Representative may be an attorney who
has been admitted to practice and who is in good standing with any court
of competent jurisdiction.
(2) Lay representative. A non-attorney Representative may represent
an Appellant before the Board. He or she may be an accredited
Representative of an employee organization.
(3) Former members of the Board and other employees of the
Department of Labor. A former judge of the Board is not allowed to
participate as counsel or other Representative before the Board in any
proceeding until two years from the termination of his or her status as
a judge of the Board. The practice of a former judge or other former
employee of the Department of Labor is governed by 29 CFR Part 0,
Subpart B.
(b) Appearance. No individual may appear as a Representative in a
proceeding before the Board without first filing with the Clerk a
written authorization signed by the Appellant to be represented. When
accepted by the Board, such Representative will continue to be
recognized unless the Representative withdraws or abandons such capacity
or the Appellant directs otherwise.
(c) Change of address. Each Appellant and Representative authorized
to appear before the Board must give the
[[Page 10]]
Clerk written notice of any change to the address or telephone number of
the Appellant or Representative. Such notice must identify the docket
number and name of each pending appeal for that Appellant, or, in the
case of a Representative, in which he or she is a Representative before
the Board. Absent such notice, the mailing of documents to the address
most recently provided to the Board will be fully effective.
(d) Debarment of Counsel or Representative. In any proceeding,
whenever the Board finds that a person acting as counsel or other
Representative for the Appellant or the Director, is guilty of unethical
or unprofessional conduct, the Board may order that such person be
excluded from further acting as counsel or Representative in such
proceeding. Such order may be appealed to the Secretary of Labor or his
or her designee, but proceedings before the Board will not be delayed or
suspended pending disposition of such appeal. However, the Board may
suspend the proceeding of an appeal for a reasonable time for the
purpose of enabling Appellant or the Director to obtain different
counsel or other Representative. Whenever the Board has issued an order
precluding a person from further acting as counsel or Representative in
a proceeding, the Board will, within a reasonable time, submit to the
Secretary of Labor or his or her designee a report of the facts and
circumstances surrounding the issuance of such order. The Board will
recommend what action the Secretary of Labor should take in regard to
the appearance of such person as counsel or Representative in other
proceedings before the Board. Before any action is taken debarring a
person as counsel or Representative from other proceedings, he or she
will be furnished notice and the opportunity to be heard on the matter.
(e) Fees for attorney, Representative, or other services. No claim
for a fee for legal or other service performed on appeal before the
Board is valid unless approved by the Board. Under 18 U.S.C. 292,
collecting a fee without the approval of the Board may constitute a
misdemeanor, subject to fine or imprisonment for up to a year or both.
No contract for a stipulated fee or on a contingent fee basis will be
approved by the Board. No fee for service will be approved except upon
written application to the Clerk, supported by a statement of the extent
and nature of the necessary work performed before the Board on behalf of
the Appellant. The fee application will be served by the Clerk on the
Appellant and a time set in which a response may be filed. Except where
such fee is de minimis, the fee request will be evaluated with
consideration of the following factors:
(1) Usefulness of the Representative's services;
(2) The nature and complexity of the appeal;
(3) The capacity in which the Representative has appeared;
(4) The actual time spent in connection with the Board appeal; and
(5) Customary local charges for similar services.
PARTS 502 599 [RESERVED]
[[Page 11]]
CHAPTER V--EMPLOYMENT AND TRAINING ADMINISTRATION, DEPARTMENT OF LABOR
--------------------------------------------------------------------
Part Page
600 [Reserved]
601 Administrative procedure.................... 13
602 Quality control in the Federal-State
unemployment insurance system........... 16
603 Federal-State Unemployment Compensation (UC)
Program; confidentiality and disclosure
of State UC information................. 24
604 Regulations for eligibility for unemployment
compensation............................ 35
606 Tax credits under the Federal Unemployment
Tax Act; advances under Title XII of the
Social Security Act..................... 38
609 Unemployment compensation for Federal
civilian employees...................... 47
614 Unemployment compensation for ex-
servicemembers.......................... 59
615 Extended benefits in the Federal-State
Unemployment Compensation Program....... 80
616 Interstate arrangement for combining
employment and wages.................... 98
617 Trade adjustment assistance for workers
under the Trade Act of 1974............. 102
618 Trade adjustment assistance under the Trade
Act of 1974, as amended................. 152
619 Unemployment compensation data exchange
standardization for improved
interoperability........................ 155
620-621 [Reserved]
625 Disaster unemployment assistance............ 156
626-634 [Reserved]
636-638 [Reserved]
639 Worker adjustment and retraining
notification............................ 182
640 Standard for benefit payment promptness--
unemployment compensation............... 192
641 Provisions governing the Senior Community
Service Employment Program.............. 195
[[Page 12]]
645 Provisions governing welfare-to-work grants. 236
646 [Reserved]
650 Standard for appeals promptness--
unemployment compensation............... 259
651 General provisions governing the Federal-
State Employment Service System......... 260
652 Establishment and functioning of State
employment services..................... 265
653 Services of the Employment Service System... 273
654 Special responsibilities of the Employment
Service System.......................... 291
655 Temporary employment of foreign workers in
the United States....................... 300
656 Labor certification process for permanent
employment of aliens in the United
States.................................. 536
[[Page 13]]
PART 600 [RESERVED]
PART 601_ADMINISTRATIVE PROCEDURE
Subpart A_Approval, Certification and Findings With Respect to State
Laws and Plans of Operation for Normal and Additional Tax Credit and
Grant Purposes
Sec.
601.1 General.
601.2 Approval of State unemployment compensation laws.
601.3 Findings with respect to State laws and plans of operation.
601.4 Certification for tax credit.
601.5 Withholding payments and certifications.
Subpart B_Grants, Advances and Audits
601.6 Grants for administration of unemployment compensation laws and
employment service.
601.7 [Reserved]
601.8 Agreement with Postmaster General.
601.9 Audits.
Authority: 5 U.S.C. 301; 26 U.S.C. Chapter 23; 29 U.S.C. 49k; 38
U.S.C. Chapters 41 and 42; 39 U.S.C. 3202(a)(1)(E) and 3202 note; 42
U.S.C. 1302; and Secretary of Labor's Order No. 4-75, 40 FR 18515.
Source: 15 FR 5886, Aug. 31, 1950; 23 FR 1267, Mar. 1, 1958, unless
otherwise noted.
Editorial Note: Nomenclature changes to part 601 appear at 71 FR
35512, June 21, 2006.
Subpart A_Approval, Certification and Findings With Respect to State
Laws and Plans of Operation for Normal and Additional Tax Credit and
Grant Purposes
Sec. 601.1 General.
(a) State unemployment compensation laws are approved and certified
as provided in section 3304 of the Internal Revenue Code of 1986;
findings are made regarding reduced rates permitted by a State law
(section 3303(a) of the Internal Revenue Code of 1986) and such laws are
certified as provided in section 3303(b) of the Internal Revenue Code of
1986; findings are made regarding the inclusion of specified provisions
(section 303(a) of the Social Security Act) in State laws approved under
section 3304(a) of the Internal Revenue Code of 1986; findings are made
whether the States have accepted the provisions of the Wagner-Peyser Act
and whether their plans of operation for public employment offices
comply with the provisions of said Act.
(b) Normal and additional tax credit is given to taxpayers against
taxes imposed by section 3301 of the Internal Revenue Code of 1986.
(c) Grants of funds are made to States for administration of their
employment security laws if their unemployment compensation laws and
their plans of operation for public employment offices meet required
conditions of Federal law. (Section 303(a) of the Social Security Act;
section 3304(a) of the Internal Revenue Code of 1986; sections 6, 7, and
8 of the Wagner-Peyser Act.)
(d) As used throughout this Part, the terms ``Secretary'' or
``Secretary of Labor'' shall refer to the Secretary of Labor, U.S.
Department of Labor, or his or her designee.
[15 FR 5886, Aug. 31, 1950; 23 FR 1267, Mar. 1, 1958, as amended at 61
FR 19983, May 3, 1996]
Sec. 601.2 Approval of State unemployment compensation laws.
States may at their option submit their unemployment compensation
laws for approval (section 3304(a) of the Internal Revenue Code of
1986).
(a) Submission. The States submit to the Employment and Training
Administration (ETA), one copy of the State unemployment compensation
law properly certified by an authorized State official to be true and
complete, together with a written request for approval.
(b) [Reserved]
(c) Approval. The Secretary of Labor determines whether the State
law contains the provisions required by section 3304(a) of the Internal
Revenue Code of 1986. If the State law is approved, the Secretary
notifies the Governor of the State within 30 days of the submission of
such law.
(d) Certification. On October 31 of each taxable year the Secretary
of Labor certifies, for the purposes of normal tax credit (section
3302(a)(1) of the Internal Revenue Code of 1986), to the Secretary of
the Treasury each State
[[Page 14]]
the law of which the Secretary has previously approved. (See also Sec.
601.5.)
(Approved by the Office of Management and Budget under control number
1205-0222)
[15 FR 5886, Aug. 31, 1950; 23 FR 1267, Mar. 1, 1958, as amended at 49
FR 18295, Apr. 30, 1984; 50 FR 51241, Dec. 16, 1985; 71 FR 35513, June
21, 2006]
Sec. 601.3 Findings with respect to State laws and plans of operation.
For purposes of grants, findings are made regarding the inclusion in
State unemployment compensation laws, approved under section 3304(a) of
the Internal Revenue Code of 1986, of provisions required by section
303(a) of the Social Security Act (see Sec. 601.2); findings are also
made whether a State has accepted the provisions of the Wagner-Peyser
Act and whether its plan of operation for public employment offices
complies with the provisions of said act. For purposes of additional tax
credit, findings are made regarding reduced rates of contributions
permitted by the State law (section 3303(a) (1) of the Internal Revenue
Code of 1986).
So that the Secretary of Labor may be enabled to determine the status of
State laws and plans of operation, all relevant State materials, such as
statutes, executive and administrative orders, legal opinions, rules,
regulations, interpretations, court decisions, etc., are required to be
submitted currently.
(a) Submission. The States submit currently to the ETA one copy of
relevant State material, properly certified by an authorized State
official to be true and complete.
(b) [Reserved]
(c) Findings. The Secretary makes findings as provided in the cited
sections of the Federal law. In the event that the Secretary is unable
to make the findings required for certification for payment or for
certification of the law for purposes of additional tax credit, further
discussions with State officials are undertaken.
(Approved by the Office of Management and Budget under control number
1205-0222)
[15 FR 5886, Aug. 31, 1950; 23 FR 1267, Mar. 1, 1958, as amended at 49
FR 18295, Apr. 30, 1984; 50 FR 51241, Dec. 16, 1985; 71 FR 35513, June
21, 2006]
Sec. 601.4 Certification for tax credit.
(a) Within 30 days after submittal of a State unemployment
compensation law for such purpose, the Secretary certifies to the State
agency, in accordance with the provisions of section 3303(b)(3) of the
Internal Revenue Code of 1986, the Secretary's findings regarding
reduced rates of contributions allowable under such law. On October 31
of each taxable year the Secretary certifies to the Secretary of the
Treasury the law of each State, certified with respect to such year
under section 3304 of the Internal Revenue Code of 1986 (see Sec.
601.2), which the Secretary finds allows reduced rates with respect to
such taxable year only in accordance with the provisions of section
3303(a) of the Internal Revenue Code of 1986.
(b) With regard to certification for payment, see Sec. 601.6.
[15 FR 5886, Aug. 31, 1950; 23 FR 1267, Mar. 1, 1958, as amended at 71
FR 35513, June 21, 2006]
Sec. 601.5 Withholding payments and certifications.
(a) When withheld. Payment of funds to States or yearend
certification of State laws, or both, are withheld when the Secretary
finds, after reasonable notice and opportunity for hearing:
(1) That any provision required by section 303(a) of the Social
Security Act is no longer included in the State unemployment
compensation law; or
(2) That the State unemployment compensation law has been so changed
as no longer to meet the conditions required by section 3303(a) of the
Internal Revenue Code of 1986 (section 3303(b)(3) of the Internal
Revenue Code); or
(3) That the State unemployment compensation law has been so amended
as no longer to contain the provisions specified in section 3304(a) or
has failed to comply substantially with any such provision and such
finding has become effective (section 3304(c) of the Internal Revenue
Code of 1986); or
(4) That in the administration of the State unemployment
compensation law there has been a failure to comply substantially with
required provisions of such law (section 303(b)(2) of the Social
Security Act and section 3303(b)(3) of the Internal Revenue Code of
1986); or
[[Page 15]]
(5) That in the administration of the State unemployment
compensation law there has been a denial, in a substantial number of
cases, of benefits due under such law, except that there may be no such
finding until the question of entitlement has been decided by the
highest judicial authority given jurisdiction under such State law
(section 303(b)(1) of the Social Security Act); or
(6) That a State fails to make its unemployment compensation records
available to the Railroad Retirement Board or fails to cooperate with
Federal agencies charged with the administration of unemployment
compensation laws (section 303(c) of the Social Security Act); or
(7) That a State no longer has a plan of operation for public
employment offices complying with the provisions of the Wagner-Peyser
Act; or
(8) That a State agency has not properly expended, in accordance
with an approved plan of operation, the Federal monies paid it for
administration of its public employment service.
(b) Informal discussion. Such hearings are generally not called,
however, until after every reasonable effort has been made by ETA
representatives to resolve the question involved by conference and
discussion with State officials. Formal notification of the date and
place of a hearing does not foreclose further negotiations with State
officials.
(c) Notice of noncertification. If, at any time during the taxable
year, the Secretary of Labor has reason to believe that a State whose
unemployment compensation law he/she has previously approved may not be
certified, the Secretary promptly notifies the Governor of the State to
that effect (section 3304(d) of the Internal Revenue Code of 1986).
(d) Notice of hearing. Notice of hearing is sent by the Secretary of
Labor to the State unemployment compensation agency. The notice sets
forth the purpose of the hearing, the time, date, and place at which the
hearing will be held, and the rules of procedure which will be followed.
At a hearing the State is given an opportunity to present arguments and
all relevant evidence, written or oral. The Secretary makes the
necessary determination or findings, on the basis of the record of such
hearings. A notice of the Secretary's determination or finding is sent
to the State unemployment compensation agency.
(e) Civil Rights Act issues. To the extent that any proposed
withholding of funds involves circumstances within the scope of title VI
of the Civil Rights Act of 1964 and the regulations promulgated
thereunder, the procedure set forth in 29 CFR part 31 shall be
applicable.
[30 FR 6942, May 22, 1965, as amended at 43 FR 13828, Mar. 31, 1978; 71
FR 35513, June 21, 2006]
Subpart B_Grants, Advances and Audits
Sec. 601.6 Grants for administration of unemployment compensation laws
and employment service.
Grants of funds for administration of State unemployment
compensation laws and public employment service programs are made to
States under section 302(a) of the Social Security Act, the Wagner-
Peyser Act, and the Appropriation Acts.
(a) Requests for funds. The forms and instructions used by State
agencies in requesting funds are available on the ETA Web site (http://
www.ows.doleta.gov/rjm). The forms and instructions call for detailed
information for each budgetary period concerning the specific amounts
requested for personal services and other current expenses of State
agencies, supported by workload and unit-cost estimates. Supplementary
budget requests are processed in the same manner as regular requests.
The Administration's representatives in the regional offices furnish
assistance to the State agencies in preparing requests for funds.
(b) Processing of requests. (1) State agencies send their requests
for funds to the Regional Administrator who reviews the requests and
forwards them to the ETA National Office with his/her recommendation as
to the amounts necessary for proper and efficient administration of the
State unemployment compensation law and employment service program.
(2) The ETA National Office appraises the requests and the
recommendations
[[Page 16]]
of the regional representatives from a nationwide point of view,
examining each State's request in the light of the experience of other
States to insure equitable treatment among the States in the allocation
of funds made available by Congress for the administration of State
unemployment compensation laws and public employment service programs.
(c) Action by ETA National Office. If the ETA National Office
approves the State's budget request, the State agency is notified; and,
provided the conditions precedent to grants continue during the
budgetary period, certifications for payment, under the approved budget,
stating the amounts, are made by the ETA National Office to the
Secretary of the Treasury quarterly. Upon denial of a request, in whole
or in part, the State agency is notified and the Regional Administrator
is instructed to negotiate with the State with a view to removing the
basis for denial.
(Approved by the Office of Management and Budget under control number
1205-0132)
[15 FR 5886, Aug. 31, 1950, as amended at 42 FR 4724, Jan. 25, 1977; 49
FR 18295, Apr. 30, 1984; 71 FR 35513, June 21, 2006]
Sec. 601.7 [Reserved]
Sec. 601.8 Agreement with Postmaster General.
The Secretary of Labor and the Postmaster General have been directed
by the Congress (title II of the Labor-Federal Security Agency
Appropriation Act, 1950) to prescribe a mutually satisfactory procedure
whereby official State employment security postal matter will be handled
without the prepayment of postage. In lieu of such prepayments, the
Secretary periodically certifies to the Secretary of the Treasury for
payment to the U.S. Postal Service the amount necessary to cover the
cost of State agency mailings. The amount of payment is based on a
formula agreed upon by the Secretary of Labor and the U.S. Postal
Service.
[15 FR 5886, Aug. 31, 1950, as amended at 42 FR 4724, Jan. 25, 1977]
Sec. 601.9 Audits.
The Department of Labor's audit regulations at 29 CFR Part 96 and 29
CFR Part 99 shall apply with respect to employment service and
unemployment compensation programs.
[46 FR 7766, Jan. 23, 1981, as amended at 71 FR 35513, June 21, 2006]
PART 602_QUALITY CONTROL IN THE FEDERAL-STATE UNEMPLOYMENT INSURANCE
SYSTEM
Subpart A_General Provisions
Sec.
602.1 Purpose.
602.2 Scope.
Subpart B_Federal Requirements
602.10 Federal law requirements.
602.11 Secretary's interpretation.
Subpart C_State Responsibilities
602.20 Organization.
602.21 Standard methods and procedures.
602.22 Exceptions.
Subpart D_Federal Responsibilities
602.30 Management.
602.31 Oversight.
Subpart E_Quality Control Grants to States
602.40 Funding.
602.41 Proper expenditure of Quality Control granted funds.
602.42 Effect of failure to implement Quality Control program.
602.43 No incentives or sanctions based on specific error rates.
Appendix A to Part 602--Standard For Claim Determinations--Separation
Information
Authority: 42 U.S.C. 1302.
Source: 52 FR 33528, Sept. 3, 1987, unless otherwise noted.
Editorial Note: Nomenclature changes to part 602 appear at 71 FR
35513, June 21, 2006.
Subpart A_General Provisions
Sec. 602.1 Purpose.
The purpose of this part is to prescribe a Quality Control (QC)
program for the Federal-State unemployment compensation (UC) system,
which is applicable to the State UC programs and the Federal
unemployment benefit and allowance programs administered by the State
unemployment compensation agencies under agreements between the States
and the Secretary of
[[Page 17]]
Labor (Secretary). QC will be a major tool to assess the timeliness and
accuracy of State administration of the UC program. It is designed to
identify errors in claims processes and revenue collections (including
payments in lieu of contributions and Extended Unemployment Compensation
Account collections), analyze causes, and support the initiation of
corrective action.
[52 FR 33528, Sept. 3, 1987, as amended at 71 FR 35513, June 21, 2006]
Sec. 602.2 Scope.
This part applies to all State laws approved by the Secretary under
the Federal Unemployment Tax Act (section 3304 of the Internal Revenue
Code of 1986, 26 U.S.C. section 3304), to the administration of the
State laws, and to any Federal unemployment benefit and allowance
program administered by the State unemployment compensation agencies
under agreements between the States and the Secretary. QC is a
requirement for all States, initially being applicable to the largest
permanently authorized programs (regular UC including Combined-Wage-
Claims) and federally-funded programs (Unemployment Compensation for Ex-
Servicemembers and Unemployment Compensation for Federal Employees).
Other elements of the QC program (e.g., interstate, extended benefit
programs, benefit denials, and revenue collections) will be phased in
under a schedule determined by the Department in consultation with State
agencies.
[52 FR 33528, Sept. 3, 1987, as amended at 71 FR 35513, June 21, 2006]
Subpart B_Federal Requirements
Sec. 602.10 Federal law requirements.
(a) Section 303(a)(1) of the Social Security Act (SSA), 42 U.S.C.
503(a)(1), requires that a State law include provision for:
Such methods of administration . . . as are found by the Secretary
of Labor to be reasonably calculated to insure full payment of
unemployment compensation when due.
(b) Section 303(a)(6), SSA, 42 U.S.C. 505(a)(6), requires that a
State law include provision for:
The making of such reports, in such form and containing such
information, as the Secretary of Labor may from time to time require,
and compliance with such provisions as the Secretary of Labor may from
time to time find necessary to assure the correctness and verification
of such reports.
(c) Section 303(b), SSA, 42 U.S.C. 503(b), provides in part that:
Whenever the Secretary of Labor, after reasonable notice and
opportunity for hearing to the State agency charged with the
administration of the State law, finds that in the administration of the
law there is--
* * * * *
(2) a failure to comply substantially with any provision specified
in subsection (a);
the Secretary of Labor shall notify such State agency that further
payments will not be made to the State until the Secretary of Labor is
satisfied that there is no longer any such denial or failure to comply.
Until he is so satisfied, he shall make no further certification to the
Secretary of the Treasury with respect to such State . . . .
(d) Certification of payment of granted funds to a State is withheld
only when the Secretary finds, after reasonable notice and opportunity
for hearing to the State agency--
(1) That any provision required by section 303(a) of the Social
Security Act is no longer included in the State UC law, or
(2) That in the administration of the State UC law there has been a
failure to comply substantially with any required provision of such law.
[52 FR 33528, Sept. 3, 1987, as amended at 71 FR 35513, June 21, 2006]
Sec. 602.11 Secretary's interpretation.
(a) The Secretary interprets section 303(a)(1), SSA, to require that
a State law provide for such methods of administration as will
reasonably ensure the prompt and full payment of unemployment benefits
to eligible claimants, and collection and handling of income for the
State unemployment fund (particularly taxes and reimbursements), with
the greatest accuracy feasible.
(b) The Secretary interprets sections 303(a)(1) and 303(a)(6), SSA,
to authorize the Department of Labor to prescribe standard definitions,
methods
[[Page 18]]
and procedures, and reporting requirements for the QC program and to
ensure accuracy and verification of QC findings.
(c) The Secretary interprets section 303(b)(2), SSA to require that,
in the administration of a State law, there shall be substantial
compliance with the provisions required by sections 303(a) (1) and (6).
Further, conformity of the State law with those requirements is required
by section 303(a) and Sec. 601.5(a) of this chapter.
(d) To satisfy the requirements of sections 303(a) (1) and (6), a
State law must contain a provision requiring, or which is construed to
require, the establishment and maintenance of a QC program in accordance
with the requirements of this part. The establishment and maintenance of
such a QC program in accordance with this part shall not require any
change in State law concerning authority to undertake redeterminations
of claims or liabilities or the finality of any determination,
redetermination or decision.
Subpart C_State Responsibilities
Sec. 602.20 Organization.
Each State shall establish a QC unit independent of, and not
accountable to, any unit performing functions subject to evaluation by
the QC unit. The organizational location of this unit shall be
positioned to maximize its objectivity, to facilitate its access to
information necessary to carry out its responsibilities, and to minimize
organizational conflict of interest.
Sec. 602.21 Standard methods and procedures.
Each State shall:
(a) Perform the requirements of this section in accordance with
instructions issued by the Department, pursuant to Sec. 602.30(a) of
this part, to ensure standardization of methods and procedures in a
manner consistent with this part;
(b) Select representative samples for QC study of at least a minimum
size specified by the Department to ensure statistical validity (for
benefit payments, a minimum of 400 cases of weeks paid per State per
year);
(c) Complete prompt and in-depth case investigations to determine
the degree of accuracy and timeliness in the administration of the State
UC law and Federal programs with respect to benefit determinations,
benefit payments, and revenue collections; and conduct other
measurements and studies necessary or appropriate for carrying out the
purposes of this part; and in conducting investigations each State
shall:
(1) Inform claimants in writing that the information obtained from a
QC investigation may affect their eligibility for benefits and inform
employers in writing that the information obtained from a QC
investigation of revenue may affect their tax liability,
(2) Use a questionnaire, prescribed by the Department, which is
designed to obtain such data as the Department deems necessary for the
operation of the QC program; require completion of the questionnaire by
claimants in accordance with the eligibility and reporting authority
under State law,
(3) Collect data identified by the Department as necessary for the
operation of the QC program; however, the collection of demographic data
will be limited to those data which relate to an individual's
eligibility for UC benefits and necessary to conduct proportions tests
to validate the selection of representative samples (the demographic
data elements necessary to conduct proportions tests are claimants' date
of birth, sex, and ethnic classification); and
(4) Conclude all findings of inaccuracy as detected through QC
investigations with appropriate official actions, in accordance with the
applicable State and Federal laws; make any determinations with respect
to individual benefit claims in accordance with the Secretary's
``Standard for Claim Determinations--Separation Information'' in the
Employment Security Manual, part V, sections 6010-6015 (appendix A of
this part);
(d) Classify benefit case findings resulting from QC investigations
as:
(1) Proper payments, underpayments, or overpayments in benefit
payment cases, or
(2) Proper denials or underpayments in benefit denial cases;
(e) Make and maintain records pertaining to the QC program, and make
[[Page 19]]
all such records available in a timely manner for inspection,
examination, and audit by such Federal officials as the Secretary may
designate or as may be required or authorized by law;
(f) Furnish information and reports to the Department, including
weekly transmissions of case data entered into the automated QC system
and annual reports, without, in any manner, identifying individuals to
whom such data pertain; and
(g) Release the results of the QC program at the same time each
year, providing calendar year results using a standardized format to
present the data as prescribed by the Department; States will have the
opportunity to release this information prior to any release by the
Department.
(Approved by the Office of Management and Budget under Control Number
1205-0245)
Sec. 602.22 Exceptions.
If the Department determines that the QC program, or any constituent
part of the QC program, is not necessary for the proper and efficient
administration of a State law or in the Department's view is not cost
effective, the Department shall use established procedures to advise the
State that it is partially or totally excepted from the specified
requirements of this part. Any determination under this section shall be
made only after consultations with the State agency.
Subpart D_Federal Responsibilities
Sec. 602.30 Management.
(a) The Department shall establish required methods and procedures
(as specified in Sec. 602.21 of this part); and provide technical
assistance as needed on the QC process.
(b) The Department shall consider and explore alternatives to the
prescribed sampling, study, recordkeeping, and reporting methodologies.
This shall include, but not be limited to, testing the obtaining of
information needed for QC by telephone and mail rather than in face-to-
face interviews.
(c) The Department shall maintain a computerized data base of QC
case data which is transmitted to the Department under Sec. 602.21,
which will be combined with other data for statistical and other
analysis such as assessing the impact of economic cycles, funding
levels, and workload levels on program accuracy and timeliness.
Sec. 602.31 Oversight.
The Department shall review QC operational procedures and samples,
and validate QC methodology to ensure uniformity in the administration
of the QC program and to ensure compliance with the requirements of this
part. The Department shall, for purposes of determining eligibility for
grants described in Sec. 602.40, annually review the adequacy of the
administration of a State's QC program.
Subpart E_Quality Control Grants to States
Sec. 602.40 Funding.
(a) The Department shall use established procedures to notify States
of the availability of funds for the operation of QC programs in
accordance with this part.
(b) The Department may allocate additional resources, if available,
to States for analysis of data generated by the QC program, to increase
the number of claims sampled in areas where more information is needed,
for pilot studies for the purpose of expanding the QC program, and for
corrective action.
[52 FR 33528, Sept. 3, 1987, as amended at 71 FR 35513, June 21, 2006]
Sec. 602.41 Proper expenditure of Quality Control granted funds.
The Secretary may, after reasonable notice and opportunity for
hearing to the State agency, take exception to and require repayment of
an expenditure for the operation of a QC program if it is found by the
Secretary that such expenditure is not necessary for the proper and
efficient administration of the QC program in the State. See sections
303(a)(8), 303(a)(9) and 303(b)(2), SSA, and 20 CFR 601.5. For purposes
of this section, an expenditure will be
[[Page 20]]
found not necessary for proper and efficient administration if such
expenditure fails to comply with the requirements of subpart C of this
part.
[52 FR 33528, Sept. 3, 1987, as amended at 52 FR 34343, Sept. 10, 1987]
Sec. 602.42 Effect of failure to implement Quality Control program.
Any State which the Secretary finds, after reasonable notice and
opportunity for hearing, has not implemented or maintained a QC program
in accordance with this part will not be eligible for any grants under
title III of the Social Security Act until such time as the Secretary is
satisfied that there is no longer any failure to conform or to comply
substantially with any provision specified in this part. See sections
303(a)(1), 303(a)(6), and 303(b)(2), SSA, and 20 CFR 601.5.
Sec. 602.43 No incentives or sanctions based on specific error rates.
Neither sanctions nor funding incentives shall be used by the
Department to influence the achievement of specified error rates in
State UC programs.
Appendix A to Part 602--Standard for Claim Determinations--Separation
Information
Employment Security Manual (Part V, Sections 6010-6015)
6010 Federal Law Requirements. Section 303(a)(1) of the Social
Security Act requires that a State law include provision for:
``Such methods of administration . . . as are found by the Secretary
to be reasonably calculated to insure full payment of unemployment
compensation when due.''
Section 303(a)(3) of the Social Security Act requires that a State
law include provision for:
``Opportunity for a fair hearing before an impartial tribunal, for
all individuals whose claims for unemployment compensation are denied.''
Section 3304(a)(4) of the Federal Unemployment Tax Act and section
303(a)(5) of the Social Security Act require that a State law include
provision for:
``Expenditure of all money withdrawn from an unemployment fund of
such State, in the payment of unemployment compensation. . . .''
Section 3306(h) of the Federal Unemployment Tax Act defines
``compensation'' as ``cash benefits payable to individuals with respect
to their unemployment.''
6011 Secretary's Interpretation of Federal Law Requirements. The
Secretary interprets the above sections to require that a State law
include provisions which will insure that:
A. Individuals who may be entitled to unemployment compensation are
furnished such information as will reasonably afford them an opportunity
to know, establish, and protect their rights under the unemployment
compensation law of such State, and
B. The State agency obtains and records in time for the prompt
determination and review of benefit claims such information as will
reasonably insure the payment of benefits to individuals to whom
benefits are due.
6012 Criteria for Review of State Law Conformity with Federal
Requirements:
In determining the conformity of a State law with the above
requirements of the Federal Unemployment Tax Act and the Social Security
Act as interpreted by the Secretary, the following criteria will be
applied:
A. Is it required that individuals who may be entitled to
unemployment compensation be furnished such information of their
potential rights to benefits, including the manner and places of filing
claims, the reasons for determinations, and their rights of appeal, as
will insure them a reasonable opportunity to know, establish, and
protect their rights under the law of the State?
B. Is the State agency required to obtain, in time for prompt
determination of rights to benefits such information as will reasonably
insure the payment of benefits to individuals to whom benefits are due?
C. Is the State agency required to keep records of the facts
considered in reaching determinations of rights to benefits?
6013 Claim Determinations Requirements Designed To Meet Department
of Labor Criteria:
A. Investigation of claims. The State agency is required to obtain
promptly and prior to a determination of an individual's right to
benefits, such facts pertaining thereto as will be sufficient reasonably
to insure the payment of benefits when due.
This requirement embraces five separate elements:
1. It is the responsibility of the agency to take the initiative in
the discovery of information. This responsibility may not be passed on
to the claimant or the employer. In addition to the agency's own
records, this information may be obtained from the worker, the employer,
or other sources. If the information obtained in the first instance
discloses no essential disagreement and provides a sufficient basis for
a fair determination, no further investigation is necessary. If the
information obtained from other sources differs essentially from that
furnished by the claimant, the agency, in order to meet its
responsibility, is required to inform the claimant of such information
from other sources
[[Page 21]]
and to afford the claimant an opportunity to furnish any further facts
he may have.
2. Evidentiary facts must be obtained as distinguished from ultimate
facts or conclusions. That a worker was discharged for misconduct is an
ultimate fact or conclusion; that he destroyed a machine upon which he
was working is a primary or evidentiary fact, and the sort of fact that
the requirement refers to.
3. The information obtained must be sufficient reasonably to insure
the payment of benefits when due. In general, the investigation made by
the agency must be complete enough to provide information upon which the
agency may act with reasonable assurance that its decision is consistent
with the unemployment compensation law. On the other hand, the
investigation should not be so exhaustive and time-consuming as unduly
to delay the payment of benefits and to result in excessive costs.
4. Information must be obtained promptly so that the payment of
benefits is not unduly delayed.
5. If the State agency requires any particular evidence from the
worker, it must give him a reasonable opportunity to obtain such
evidence.
B. Recording of facts. The agency must keep a written record of the
facts considered in reaching its determinations.
C. Determination notices.
1. The agency must give each claimant a written notice of:
a. Any monetary determination with respect to his benefit year;
b. Any determination with respect to purging a disqualification if,
under the State law, a condition or qualification must be satisfied with
respect to each week of disqualification; but in lieu of giving written
notice of each determination for each week in which it is determined
that the claimant has met the requirements for purging, the agency may
inform the claimant that he has purged the disqualification for a week
by notation of his applicant identification card or otherwise in
writing.
c. Any other determination which adversely affects \1\ his rights to
benefits, except that written notice of determination need not be given
with respect to:
---------------------------------------------------------------------------
\1\ A determination ``adversely affects'' claimant's right to
benefits if it (1) results in a denial to him of benefits (including a
cancellation of benefits or wage credits or any reduction in whole or in
part below the weekly or maximum amount established by his monetary
determination) for any week or other period; or (2) denies credit for a
waiting week; or (3) applies any disqualification or penalty; or (4)
determines that he has not satisfied a condition of eligibility,
requalification for benefits, or purging a disqualification; or (5)
determines that an overpayment has been made or orders repayment or
recoupment of any sum paid to him; or (6) applies a previously
determined overpayment, penalty, or order for repayment or recoupment;
or (7) in any other way denies claimant a right to benefits under the
State law.
---------------------------------------------------------------------------
(1) A week in a benefit year for which the claimant's weekly benefit
amount is reduced in whole or in part by earnings if, the first time in
the benefit year that there is such a reduction, he is required to be
furnished a booklet or leaflet containing the information set forth
below in paragraph 2f(1). However, a written notice of determination is
required if: (a) there is a dispute concerning the reduction with
respect to any week (e.g., as to the amount computed as the appropriate
reduction, etc.); or (b) there is a change in the State law (or in the
application thereof) affecting the reduction; or
(2) Any week in a benefit year subsequent to the first week in such
benefit year in which benefits were denied, or reduced in whole or in
part for reasons other than earnings, if denial or reduction for such
subsequent week is based on the same reason and the same facts as for
the first week, and if written notice of determination is required to be
given to the claimant with respect to such first week, and with such
notice of determination, he is required to be given a booklet or
pamphlet containing the information set forth below in paragraphs 2f(2)
and 2h. However, a written notice of determination is required if: (a)
there is a dispute concerning the denial or reduction of benefits with
respect to such week; or (b) there is a change in the State law (or in
the application thereof) affecting the denial or reduction; or (c) there
is a change in the amount of the reduction except as to the balance
covered by the last reduction in a series of reductions.
Note: This procedure may be applied to determinations made with
respect to any subsequent weeks for the same reason and on the basis of
the same facts: (a) that claimant is unable to work, unavailable for
work, or is disqualified under the labor dispute provision; and (b)
reducing claimant's weekly benefit amount because of income other than
earnings or offset by reason of overpayment.
2. The agency must include in written notices of determinations
furnished to claimants sufficient information to enable them to
understand the determinations, the reasons therefor, and their rights to
protest, request reconsideration, or appeal.
The written notice of monetary determination must contain the
information specified in the following items (except h) unless an item
is specifically not applicable. A written
[[Page 22]]
notice of any other determination must contain the information specified
in as many of the following items as are necessary to enable the
claimant to understand the determination and to inform him of his appeal
rights. Information specifically applicable to the individual claimant
must be contained in the written notice of determination. Information of
general application such as (but not limited to) the explanation of
benefits for partial unemployment, information as to deductions,
seasonality factors, and information as to the manner and place of
taking an appeal, extension of the appeal period, and where to obtain
information and assistance may be contained in a booklet or leaflet
which is given the claimant with his monetary determination.
a. Base period wages. The statement concerning base-period wages
must be in sufficient detail to show the basis of computation of
eligibility and weekly and maximum benefit amounts. (If maximum benefits
are allowed, it may not be necessary to show details of earnings.)
b. Employer name. The name of the employer who reported the wages is
necessary so that the worker may check the wage transcript and know
whether it is correct. If the worker is given only the employer number,
he may not be able to check the accuracy of the wage transcript.
c. Explanation of benefit formula--weekly and maximum benefit
amounts. Sufficient information must be given the worker so that he will
understand how his weekly benefit amount, including allowances for
dependents, and his maximum benefit amount were figured. If benefits are
computed by means of a table contained in the law, the table must be
furnished with the notice of determination whether benefits are granted
or denied.
The written notice of determination must show clearly the weekly
benefit amount and the maximum potential benefits to which the claimant
is entitled.
The notice to a claimant found ineligible by reason of insufficient
earnings in the base period must inform him clearly of the reason for
ineligibility. An explanation of the benefit formula contained in a
booklet or pamphlet should be given to each claimant at or prior to the
time he receives written notice of a monetary determination.
d. Benefit year. An explanation of what is meant by the benefit year
and identification of the claimant's benefit year must be included in
the notice of determination.
e. Information as to benefits for partial unemployment. There must
be included either in the written notice of determination or in a
booklet or pamphlet accompanying the notice an explanation of the
claimant's rights to partial benefits for any week with respect to which
he is working less than his normal customary full-time workweek because
of lack of work and for which he earns less than his weekly benefit
amount or weekly benefit amount plus earnings, whichever is provided by
the State law. If the explanation is contained in the notice of
determination, reference to the item in the notice in which his weekly
benefit amount is entered should be made.
f. Deductions from weekly benefits.
(1) Earnings. Although written notice of determinations deducting
earnings from a claimant's weekly benefit amount is generally not
required (see paragraph 1 c (1) above), where written notice of
determination is required (or given) it shall set forth the amount of
earnings, the method of computing the deduction in sufficient detail to
enable the claimant to verify the accuracy of the deduction, and his
right to protest, request redetermination, and appeal. Where a written
notice of determination is given to the claimant because there has been
a change in the State law or in the application of the law, an
explanation of the change shall be included.
Where claimant is not required to receive a written notice of
determination, he must be given a booklet or pamphlet the first time in
his benefit year that there is a deduction for earnings which shall
include the following information:
(a) The method of computing deductions for earnings in sufficient
detail to enable the claimant to verify the accuracy of the deduction;
(b) That he will not automatically be given a written notice of
determination for a week with respect to which there is a deduction for
earnings (unless there is a dispute concerning the reduction with
respect to a week or there has been a change in the State law or in the
application of the law affecting the deduction) but that he may obtain
such a written notice upon request; and
(c) A clear statement of his right to protest, request a
redetermination, and appeal from any determination deducting earnings
from his weekly benefit amount even though he does not automatically
receive a written notice of determination; and if the State law requires
written notice of determination in order to effectuate a protest,
redetermination, or appeal, he must be so advised and advised also that
he must request a written notice of determination before he takes any
such action.
(2) Other deductions.
(a) A written notice of determination is required with respect to
the first week in claimant's benefit year in which there is a reduction
from his benefits for a reason other than earnings. This notice must
describe the deduction made from claimant's weekly benefit amount, the
reason for the deduction, the method of computing it in sufficient
detail to enable him to verify the accuracy of such deduction, and his
right to protest, request redetermination, or appeal.
[[Page 23]]
(b) A written notice of determination is not required for subsequent
weeks that a deduction is made for the same reason and on the basis of
the same facts, if the notice of determination pursuant to (2)(a), or a
booklet or pamphlet given him with such notice explains (i) the several
kinds of deductions which may be made under the State law (e.g.,
retirement pensions, vacation pay, and overpayments); (ii) the method of
computing each kind of deduction in sufficient detail that claimant will
be able to verify the accuracy of deductions made from his weekly
benefit payments; (iii) any limitation on the amount of any deduction or
the time in which any deduction may be made; (iv) that he will not
automatically be given a written notice of determination for subsequent
weeks with respect to which there is a deduction for the same reason and
on the basis of the same facts, but that he may obtain a written notice
of determination upon request; (v) his right to protest, request
redetermination, or appeal with respect to subsequent weeks for which
there is a reduction from his benefits for the same reason, and on the
basis of the same facts even though he does not automatically receive a
written notice of determination; and (vi) that if the State law requires
written notice of determination in order to effectuate a protest,
redetermination, or appeal, he must be so advised and advised also that
he must request a written notice of determination before he takes any
such action.
g. Seasonality factors. If the individual's determination is
affected by seasonality factors under the State law, an adequate
explanation must be made. General explanation of seasonality factors
which may affect determinations for subsequent weeks may be included in
a booklet or pamphlet given claimant with his notice of monetary
determination.
h. Disqualification or ineligibility. If a disqualification is
imposed, or if the claimant is declared ineligible for one or more
weeks, he must be given not only a statement of the period of
disqualification or ineligibility and the amount of wage-credit
reductions, if any, but also an explanation of the reason for the
ineligibility or disqualification. This explanation must be sufficiently
detailed so that he will understand why he is ineligible or why he has
been disqualified, and what he must do in order to requalify for
benefits or purge the disqualification. The statement must be
individualized to indicate the facts upon which the determination was
based, e.g., state, ``It is found that you left your work with Blank
Company because you were tired of working; the separation was voluntary,
and the reason does not constitute good cause,'' rather than merely the
phrase ``voluntary quit.'' Checking a box as to the reason for the
disqualification is not a sufficiently detailed explanation. However,
this statement of the reason for the disqualification need not be a
restatement of all facts considered in arriving at the determination.
i. Appeal rights. The claimant must be given information with
respect to his appeal rights.
(1) The following information shall be included in the notice of
determination:
(a) A statement that he may appeal or, if the State law requires or
permits a protest or redetermination before an appeal, that he may
protest or request a redetermination.
(b) The period within which an appeal, protest, or request for
redetermination must be filed. The number of days provided by statute
must be shown as well as either the beginning date or ending date of the
period. (It is recommended that the ending date of the appeal period be
shown, as this is the more understandable of the alternatives.)
(2) The following information must be included either in the notice
of determination or in separate informational material referred to in
the notice:
(a) The manner in which the appeal, protest, or request for
redetermination must be filed, e.g., by signed letter, written
statement, or on a prescribed form, and the place or places to which the
appeal, protest, or request for redetermination may be mailed or hand-
delivered.
(b) An explanation of any circumstances (such as nonworkdays, good
cause, etc.) which will extend the period for the appeal, protest, or
request for redetermination beyond the date stated or identified in the
notice of determination.
(c) That any further information claimant may need or desire can be
obtained together with assistance in filing his appeal, protest, or
request for redetermination from the local office.
If the information is given in separate material, the notice of
determination would adequately refer to such material if it said, for
example, ``For other information about your (appeal), (protest),
(redetermination) rights, see pages ---- to ---- of the -------- (name
of pamphlet or booklet) heretofore furnished to you.''
6014 Separation Information Requirements Designed To Meet Department
of Labor Criteria:
A. Information to agency. Where workers are separated, employers are
required to furnish the agency promptly, either upon agency request or
upon such separation, a notice describing the reasons for and the
circumstances of the separation and any additional information which
might affect a claimant's right to benefits. Where workers are working
less than full time, employers are required to furnish the agency
promptly, upon agency request, information concerning a claimant's hours
of work and his wages during the claim periods involved, and other facts
which might affect a claimant's eligibility for benefits during such
periods.
[[Page 24]]
When workers are separated and the notices are obtained on a request
basis, or when workers are working less than full time and the agency
requests information, it is essential to the prompt processing of claims
that the request be sent out promptly after the claim is filed and the
employer be given a specific period within which to return the notice,
preferably within 2 working days.
When workers are separated and notices are obtained upon separation,
it is essential that the employer be required to send the notice to the
agency with sufficient promptness to insure that, if a claim is filed,
it may be processed promptly. Normally, it is desirable that such a
notice be sent to the central office of the agency, since the employer
may not know in which local office the workers will file his claim. The
usual procedure is for the employer to give the worker a copy of the
notice sent by the employer to the agency.
B. Information to worker.
1. Information required to be given. Employers are required to give
their employees information and instructions concerning the employees'
potential rights to benefits and concerning registration for work and
filing claims for benefits.
The information furnished to employees under such a requirement need
not be elaborate; it need only be adequate to insure that the worker who
is separated or who is working less than full time knows he is
potentially eligible for benefits and is informed as to what he is to do
or where he is to go to file his claim and register for work. When he
files his claim, he can obtain more detailed information.
In States that do not require employers to furnish periodically to
the State agency detailed reports of the wages paid to their employees,
each employer is required to furnish to his employees information as to
(a) the name under which he is registered by the State agency, (b) the
address where he maintains his payroll records, and (c) the workers'
need for this information if and when they file claims for benefits.
2. Methods for giving information. The information and instructions
required above may be given in any of the following ways:
a. Posters prominently displayed in the employer's establishment.
The State agency should supply employers with a sufficient number of
posters for distribution throughout their places of business and should
see that the posters are conspicuously displayed at all times.
b. Leaflets. Leaflets distributed either periodically or at the time
of separation or reduction of hours. The State agency should supply
employers with a sufficient number of leaflets.
c. Individual notices. Individual notices given to each employee at
the time of separation or reduction in hours.
It is recommended that the State agency's publicity program be used
to supplement the employer-information requirements. Such a program
should stress the availability and location of claim-filing offices and
the importance of visiting those offices whenever the worker is
unemployed, wishes to apply for benefits, and to seek a job.
6015 Evaluation of Alternative State Provisions with Respect to
Claim Determinations and Separation Information. If the State law
provisions do not conform to the suggested requirements set forth in
sections 6013 and 6014, but the State law contains alternative
provisions, the Bureau of Employment Security, in collaboration with the
State agency, will study the actual or anticipated effects of the
alternative provisions. If the Administrator of the Bureau concludes
that the alternative provisions satisfy the criteria in section 6012, he
will so notify the State agency. If the Administrator of the Bureau does
not so conclude, he will submit the matter to the Secretary. If the
Secretary concludes that the alternative provisions satisfy the criteria
in section 6012, the State agency will be so notified. If the Secretary
concludes that there is a question as to whether the alternative
provisions satisfy the criteria, the State agency will be advised that
unless the State law provisions are appropriately revised, a notice of
hearing will be issued as required by the Code of Federal Regulations,
title 20, section 601.5.
PART 603_FEDERAL-STATE UNEMPLOYMENT COMPENSATION (UC) PROGRAM;
CONFIDENTIALITY AND DISCLOSURE OF STATE UC INFORMATION
Subpart A_In General
Sec.
603.1 What are the purpose and scope of this part?
603.2 What definitions apply to this part?
Subpart B_Confidentiality and Disclosure Requirements
603.3 What is the purpose and scope of this subpart?
603.4 What is the confidentiality requirement of Federal UC law?
603.5 What are the exceptions to the confidentiality requirement?
603.6 What disclosures are required by this subpart?
603.7 What requirements apply to subpoenas, other compulsory processes,
and
[[Page 25]]
disclosure to officials with subpoena authority?
603.8 What are the requirements for payment of costs and program income?
603.9 What safeguards and security requirements apply to disclosed
information?
603.10 What are the requirements for agreements?
603.11 How do States notify claimants and employers about the uses of
their information?
603.12 How are the requirements of this part enforced?
Subpart C_Mandatory Disclosure for Income and Eligibility Verification
System (IEVS)
603.20 What is the purpose and scope of this subpart?
603.21 What is a requesting agency?
603.22 What information must State UC agencies disclose for purposes of
an IEVS?
603.23 What information must State UC agencies obtain from other
agencies, and crossmatch with wage information, for purposes
of an IEVS?
Authority: 42 U.S.C. 1302(a); Secretary's Order No. 4-75 (40 FR
18515) and Secretary's Order No. 14-75 (November 12, 1975).
Source: 71 FR 56842, Sept. 27, 2006, unless otherwise noted.
Subpart A_In General
Sec. 603.1 What are the purpose and scope of this part?
The purpose of this part is to implement the requirements of Federal
UC law concerning confidentiality and disclosure of UC information. This
part applies to States and State UC agencies, as defined in Sec.
603.2(f) and (g).
Sec. 603.2 What definitions apply to this part?
For the purposes of this part:
(a)(1) Claim information means information about:
(i) Whether an individual is receiving, has received, or has applied
for UC;
(ii) The amount of compensation the individual is receiving or is
entitled to receive; and
(iii) The individual's current (or most recent) home address.
(2) For purposes of subpart C (IEVS), claim information also
includes:
(i) Whether the individual has refused an offer of work and, if so,
a description of the job offered including the terms, conditions, and
rate of pay; and
(ii) Any other information contained in the records of the State UC
agency that is needed by the requesting agency to verify eligibility
for, and the amount of, benefits.
(b) Confidential UC information and confidential information mean
any UC information, as defined in paragraph (j) of this section,
required to be kept confidential under Sec. 603.4.
(c) Public domain information means--
(1) Information about the organization of the State and the State UC
agency and appellate authorities, including the names and positions of
officials and employees thereof;
(2) Information about the State UC law (and applicable Federal law)
provisions, rules, regulations, and interpretations thereof, including
statements of general policy and interpretations of general
applicability; and
(3) Any agreement of whatever kind or nature, including interstate
arrangements and reciprocal agreements and any agreement with the
Department of Labor or the Secretary, relating to the administration of
the State UC law.
(d) Public official means an official, agency, or public entity
within the executive branch of Federal, State, or local government who
(or which) has responsibility for administering or enforcing a law, or
an elected official in the Federal, State, or local government.
(e) Secretary and Secretary of Labor mean the cabinet officer
heading the United States Department of Labor, or his or her designee.
(f) State means a State of the United States of America, the
District of Columbia, the Commonwealth of Puerto Rico, and the United
States Virgin Islands.
(g) State UC agency means an agency charged with the administration
of the State UC law.
(h) State UC law means the law of a State approved under Section
3304(a) of the Internal Revenue Code of 1986 (26 U.S.C. 3304(a)).
(i) Unemployment compensation (UC) means cash benefits payable to
individuals with respect to their unemployment.
[[Page 26]]
(j) UC information and State UC information means information in the
records of a State or State UC agency that pertains to the
administration of the State UC law. This term includes those State wage
reports collected under the IEVS (Section 1137 of the Social Security
Act (SSA)) that are obtained by the State UC agency for determining UC
monetary eligibility or are downloaded to the State UC agency's files as
a result of a crossmatch but does not otherwise include those wage
reports. It does not include information in a State's Directory of New
Hires, but does include any such information that has been disclosed to
the State UC agency for use in the UC program. It also does not include
the personnel or fiscal information of a State UC agency.
(k) Wage information means information in the records of a State UC
agency (and, for purposes of Sec. 603.23 (IEVS)), information reported
under provisions of State law which fulfill the requirements of Section
1137, SSA) about the--
(1) Wages paid to an individual,
(2) Social security account number (or numbers, if more than one) of
such individual, and
(3) Name, address, State, and the Federal employer identification
number of the employer who paid such wages to such individual.
Subpart B_Confidentiality and Disclosure Requirements
Sec. 603.3 What is the purpose and scope of this subpart?
This subpart implements the basic confidentiality requirement
derived from Section 303(a)(1), SSA, and the disclosure requirements of
Sections 303(a)(7), (c)(1), (d), (e), (h), and (i), SSA, and Section
3304(a)(16), Federal Unemployment Tax Act (FUTA). This subpart also
establishes uniform minimum requirements for the payment of costs,
safeguards, and data-sharing agreements when UC information is
disclosed, and for conformity and substantial compliance with this
proposed rule. This subpart applies to States and State UC agencies, as
defined in Sec. 603.2(f) and (g), respectively.
Sec. 603.4 What is the confidentiality requirement of Federal UC law?
(a) Statute. Section 303(a)(1) of the SSA (42 U.S.C. 503(a)(1))
provides that, for the purposes of certification of payment of granted
funds to a State under Section 302(a) (42 U.S.C. 502(a)), State law must
include provision for such methods of administration as are found by the
Secretary of Labor to be reasonably calculated to insure full payment of
unemployment compensation when due.
(b) Interpretation. The Department of Labor interprets Section
303(a)(1), SSA, to mean that ``methods of administration'' that are
reasonably calculated to insure the full payment of UC when due must
include provision for maintaining the confidentiality of any UC
information which reveals the name or any identifying particular about
any individual or any past or present employer or employing unit, or
which could foreseeably be combined with other publicly available
information to reveal any such particulars, and must include provision
for barring the disclosure of any such information, except as provided
in this part.
(c) Application. Each State law must contain provisions that are
interpreted and applied consistently with the interpretation in
paragraph (b) of this section and with this subpart, and must provide
penalties for any disclosure of confidential UC information that is
inconsistent with any provision of this subpart.
Sec. 603.5 What are the exceptions to the confidentiality requirement?
The following are exceptions to the confidentiality requirement.
Disclosure of confidential UC information is permissible under the
exceptions in paragraphs (a) through (g) of this section only if
authorized by State law and if such disclosure does not interfere with
the efficient administration of the State UC law. Disclosure of
confidential UC information is permissible under the exceptions in
paragraphs (h) and (i) of this section without such restrictions.
(a) Public domain information. The confidentiality requirement of
Sec. 603.4 does not apply to public domain information, as defined at
Sec. 603.2(c).
[[Page 27]]
(b) UC appeals records. Disclosure of appeals records and decisions,
and precedential determinations on coverage of employers, employment,
and wages, is permissible provided all social security account numbers
have been removed and such disclosure is otherwise consistent with
Federal and State law.
(c) Individual or employer. Disclosure for non-UC purposes, of
confidential UC information about an individual to that individual, or
of confidential UC information about an employer to that employer, is
permissible.
(d) Informed consent. Disclosure of confidential UC information on
the basis of informed consent is permissible in the following
circumstances--
(1) Agent--to one who acts for or in the place of an individual or
an employer by the authority of that individual or employer if--
(i) In general--
(A) The agent presents a written release (which may include an
electronically submitted release that the State determines is authentic)
from the individual or employer being represented;
(B) When a written release is impossible or impracticable to obtain,
the agent presents such other form of consent as is permitted by the
State UC agency in accordance with State law;
(ii) In the case of an elected official performing constituent
services, the official presents reasonable evidence (such as a letter
from the individual or employer requesting assistance or a written
record of a telephone request from the individual or employer) that the
individual or employer has authorized such disclosure; or
(iii) In the case of an attorney retained for purposes related to
the State's UC law, the attorney asserts that he or she is representing
the individual or employer.
(2) Third party (other than an agent) or disclosure made on an
ongoing basis--to a third party that is not acting as an agent or that
receives confidential information following an informed consent
disclosure on an ongoing basis (even if such entity is an agent), but
only if that entity obtains a written release from the individual or
employer to whom the information pertains.
(i) The release must be signed and must include a statement--
(A) Specifically identifying the information that is to be
disclosed;
(B) That State government files will be accessed to obtain that
information;
(C) Of the specific purpose or purposes for which the information is
sought and a statement that information obtained under the release will
only be used for that purpose or purposes; and
(D) Indicating all the parties who may receive the information
disclosed.
(ii) The purpose specified in the release must be limited to--
(A) Providing a service or benefit to the individual signing the
release that such individual expects to receive as a result of signing
the release; or
(B) Carrying out administration or evaluation of a public program to
which the release pertains.
Note to paragraph (d):
The Electronic Signatures in Global and National Commerce Act of
2000 (E-Sign), Pub. L. 106-229, may apply where a party wishes to
effectuate electronically an informed consent release (Sec.
603.5(d)(2)) or a disclosure agreement (Sec. 603.10(a)) with an entity
that uses informed consent releases. E-Sign, among other things, sets
forth the circumstances under which electronic signatures, contracts,
and other records relating to such transactions (in lieu of paper
documents) are legally binding. Thus, an electronic communication may
suffice under E-Sign to establish a legally binding contract. The States
will need to consider E-Sign's application to these informed consent
releases and disclosure agreements. In particular, a State must, to
conform and substantially comply with this regulation, assure that these
informed consent releases and disclosure agreements are legally
enforceable. If an informed consent release or disclosure agreement is
to be effectuated electronically, the State must determine whether E-
Sign applies to that transaction, and, if so, make certain that the
transaction satisfies the conditions imposed by E-Sign. The State must
also make certain that the electronic transaction complies with every
other condition necessary to make it legally enforceable.
(e) Public official. Disclosure of confidential UC information to a
public official for use in the performance of his or her official duties
is permissible. ``Performance of official duties'' means administration
or enforcement of law or the execution of the official responsibilities
of a Federal, State, or local elected official. Administration of law
[[Page 28]]
includes research related to the law administered by the public
official. Execution of official responsibilities does not include
solicitation of contributions or expenditures to or on behalf of a
candidate for public or political office or a political party.
(f) Agent or contractor of public official. Disclosure of
confidential UC information to an agent or contractor of a public
official to whom disclosure is permissible under paragraph (e) of this
section.
(g) Bureau of Labor Statistics. The confidentiality requirement does
not apply to information collected exclusively for statistical purposes
under a cooperative agreement with the Bureau of Labor Statistics (BLS).
Further, this part does not restrict or impose any condition on the
transfer of any other information to the BLS under an agreement, or the
BLS's disclosure or use of such information.
(h) Court order; official with subpoena authority. Disclosure of
confidential UC information in response to a court order or to an
official with subpoena authority is permissible as specified in Sec.
603.7(b).
(i) UC Program Oversight and Audits. The confidentiality requirement
does not apply to any disclosure to a Federal official for purposes of
UC program oversight and audits, including disclosures under 20 CFR part
601 and 29 CFR parts 96 and 97.
Sec. 603.6 What disclosures are required by this subpart?
(a) The confidentiality requirement of 303(a)(1), SSA, and Sec.
603.4 are not applicable to this paragraph (a) and the Department of
Labor interprets Section 303(a)(1), SSA, as requiring disclosure of all
information necessary for the proper administration of the UC program.
This includes disclosures to claimants, employers, the Internal Revenue
Service (for purposes of UC tax administration), and the U.S.
Citizenship and Immigration Services (for purposes of verifying a
claimant's immigration status).
(b) In addition to Section 303(f), SSA (concerning an IEVS), which
is addressed in subpart C, the following provisions of Federal UC law
also specifically require disclosure of State UC information and State-
held information pertaining to the Federal UC and benefit programs of
Unemployment Compensation for Federal Employees (UCFE), Unemployment
Compensation for Ex-Servicemembers (UCX), Trade Adjustment Assistance
(TAA) (except for confidential business information collected by
States), Disaster Unemployment Assistance (DUA), and any Federal UC
benefit extension program:
(1) Section 303(a)(7), SSA, requires State law to provide for making
available, upon request, to any agency of the United States charged with
the administration of public works or assistance through public
employment, disclosure of the following information with respect to each
recipient of UC--
(i) Name;
(ii) Address;
(iii) Ordinary occupation;
(iv) Employment status; and
(v) A statement of such recipient's rights to further compensation
under the State law.
(2) Section 303(c)(1), SSA, requires each State to make its UC
records available to the Railroad Retirement Board, and to furnish such
copies of its UC records to the Railroad Retirement Board as the Board
deems necessary for its purposes.
(3) Section 303(d)(1), SSA, requires each State UC agency, for
purposes of determining an individual's eligibility benefits, or the
amount of benefits, under a food stamp program established under the
Food Stamp Act of 1977, to disclose, upon request, to officers and
employees of the Department of Agriculture, and to officers or employees
of any State food stamp agency, any of the following information
contained in the records of the State UC agency--
(i) Wage information,
(ii) Whether an individual is receiving, has received, or has made
application for, UC, and the amount of any such compensation being
received, or to be received, by such individual,
(iii) The current (or most recent) home address of such individual,
and
(iv) Whether an individual has refused an offer of employment and,
if so, a description of the employment so offered and the terms,
conditions, and rate of pay therefore.
[[Page 29]]
(4) Section 303(e)(1), SSA, requires each State UC agency to
disclose, upon request, directly to officers or employees of any State
or local child support enforcement agency, any wage information
contained in the records of the State UC agency for purposes of
establishing and collecting child support obligations (not to include
custodial parent support obligations) from, and locating, individuals
owing such obligations.
(5) Section 303(h), SSA, requires each State UC agency to disclose
quarterly, to the Secretary of Health and Human Services (HHS), wage
information and claim information as required under Section 453(i)(1) of
the SSA (establishing the National Directory of New Hires), contained in
the records of such agency, for purposes of Subsections (i)(1), (i)(3),
and (j) of Section 453, SSA (establishing the National Directory of New
Hires and its uses for purposes of child support enforcement, Temporary
Assistance to Needy Families (TANF), TANF research, administration of
the earned income tax credit, and use by the Social Security
Administration).
(6) Section 303(i), SSA, requires each State UC agency to disclose,
upon request, to officers or employees of the Department of Housing and
Urban Development (HUD) and to representatives of a public housing
agency, for purposes of determining an individual's eligibility for
benefits, or the amount of benefits, under a housing assistance program
of HUD, any of the following information contained in the records of
such State agency about any individual applying for or participating in
any housing assistance program administered by HUD who has signed a
consent form approved by the Secretary of HUD--
(i) Wage information, and
(ii) Whether the individual is receiving, has received, or has made
application for, UC, and the amount of any such compensation being
received (or to be received) by such individual.
(7) Section 3304(a)(16), FUTA requires each State UC agency--
(i) To disclose, upon request, to any State or political subdivision
thereof administering a Temporary Assistance to Needy Families Agency
(TANF) program funded under part A of Title IV of the SSA, wage
information contained in the records of the State UC agency which is
necessary (as determined by the Secretary of HHS in regulations) for
purposes of determining an individual's eligibility for TANF assistance
or the amount of TANF assistance; and
(ii) To furnish to the Secretary of HHS, in accordance with that
Secretary's regulations at 45 CFR 303.108, wage information (as defined
at 45 CFR 303.108(a)(2)) and UC information (as defined at 45 CFR
303.108(a)(3)) contained in the records of such agency for the purposes
of the National Directory of New Hires established under Section 453(i)
of the SSA.
(c) Each State law must contain provisions that are interpreted and
applied consistently with the requirements listed in this section.
Sec. 603.7 What requirements apply to subpoenas, other compulsory
processes, and disclosure to officials with subpoena
authority?
(a) In general. Except as provided in paragraph (b) of this section,
when a subpoena or other compulsory process is served upon a State UC
agency or the State, any official or employee thereof, or any recipient
of confidential UC information, which requires the production of
confidential UC information or appearance for testimony upon any matter
concerning such information, the State or State UC agency or recipient
must file and diligently pursue a motion to quash the subpoena or other
compulsory process if other means of avoiding the disclosure of
confidential UC information are not successful or if the court has not
already ruled on the disclosure. Only if such motion is denied by the
court or other forum may the requested confidential UC information be
disclosed, and only upon such terms as the court or forum may order,
such as that the recipient protect the disclosed information and pay the
State's or State UC agency's costs of disclosure.
(b) Exceptions. The requirement of paragraph (a) of this section to
move to quash subpoenas shall not be applicable, so that disclosure is
permissible, where--
(1) Court Decision--a subpoena or other compulsory legal process has
[[Page 30]]
been served and a court has previously issued a binding precedential
decision that requires disclosures of this type, or a well-established
pattern of prior court decisions have required disclosures of this type,
or
(2) Official with subpoena authority--Confidential UC information
has been subpoenaed, by a local, State or Federal governmental official,
other than a clerk of court on behalf of a litigant, with authority to
obtain such information by subpoena under State or Federal law. The
State or State UC agency may choose to disclose such confidential UC
information to these officials without the actual issuance of a
subpoena.
Sec. 603.8 What are the requirements for payment of costs and program
income?
(a) In general. Except as provided in paragraph (b) of this section,
grant funds must not be used to pay any of the costs of making any
disclosure of UC information. Grant funds may not be used to pay any of
the costs of making any disclosures under Sec. 603.5(d)(2) (third party
(other than an agent) or disclosure made on an ongoing basis), Sec.
603.5(e) (optional disclosure to a public official), Sec. 603.5(f)
(optional disclosure to an agent or contractor of a public official),
and Sec. 603.5(g) (optional disclosure to BLS), Sec. 603.6(b)
(mandatory disclosures for non-UC purposes), or Sec. 603.22 (mandatory
disclosure for purposes of an IEVS).
(b) Use of grant funds permitted. Grant funds paid to a State under
Section 302(a), SSA, may be used to pay the costs of only those
disclosures necessary for proper administration of the UC program. (This
may include some disclosures under Sec. 603.5(a) (concerning public
domain information), Sec. 603.5(c) (to an individual or employer), and
Sec. 603.5(d)(1) (to an agent).) In addition, grant funds may be used
to pay costs of disclosures under Sec. 603.5(i) (for UC Program
Oversight and Audits) and Sec. 603.6(a) (for the proper administration
of the UC program). Grant funds may also be used to pay costs associated
with disclosures under Sec. 603.7(b)(1) (concerning court-ordered
compliance with subpoenas) if a court has denied recovery of costs, or
to pay costs associated with disclosures under Sec. 603.7(b)(2) (to
officials with subpoena authority) if the State UC agency has attempted
but not been successful in obtaining reimbursement of costs. Finally,
grant funds may be used to pay costs associated with any disclosure of
UC information if not more than an incidental amount of staff time and
no more than nominal processing costs are involved in making the
disclosure.
(c) Calculation of costs. The costs to a State or State UC agency of
processing and handling a request for disclosure of information must be
calculated in accordance with the cost principles and administrative
requirements of 29 CFR part 97 and Office of Management and Budget
Circular No. A-87 (Revised). For the purpose of calculating such costs,
any initial start-up costs incurred by the State UC agency in
preparation for making the requested disclosure(s), such as computer
reprogramming necessary to respond to the request, and the costs of
implementing safeguards and agreements required by Sec. Sec. 603.9 and
603.10, must be charged to and paid by the recipient. (Start-up costs do
not include the costs to the State UC agency of obtaining, compiling, or
maintaining information for its own purposes.) Postage or other delivery
costs incurred in making any disclosure are part of the costs of making
the disclosure. Penalty mail, as defined in 39 U.S.C. 3201(1), must not
be used to transmit information being disclosed, except information
disclosed for purposes of administration of State UC law. As provided in
Sections 453(e)(2) and 453(g) of the SSA, the Secretary of HHS has the
authority to determine what constitutes a reasonable amount for the
reimbursement for disclosures under Section 303(h), SSA, and Section
3304(a)(16)(B), FUTA.
(d) Payment of costs. The costs to a State or State UC agency of
making a disclosure of UC information, calculated in accordance with
paragraph (c) of this section, must be paid by the recipient of the
information or another source paying on behalf of the recipient, either
in advance or by way of reimbursement. If the recipient is not a public
official, such costs, except for good reason must be paid in advance.
For the purposes of this paragraph (d),
[[Page 31]]
payment in advance means full payment of all costs before or at the time
the disclosed information is given in hand or sent to the recipient. The
requirement of payment of costs in this paragraph is met when a State UC
agency has in place a reciprocal cost agreement or arrangement with the
recipient. As used in this section, reciprocal means that the relative
benefits received by each are approximately equal. Payment or
reimbursement of costs must include any initial start-up costs
associated with making the disclosure.
(e) Program income. Costs paid as required by this section, and any
funds generated by the disclosure of UC information under this part, are
program income and may be used only as permitted by 29 CFR 97.25(g) (on
program income). Such income may not be used to benefit a State's
general fund or other program.
Sec. 603.9 What safeguards and security requirements apply to
disclosed information?
(a) In general. For disclosures of confidential UC information under
Sec. 603.5(d)(2) (to a third party (other than an agent) or disclosures
made on an ongoing basis); Sec. 603.5(e) (to a public official), except
as provided in paragraph (d) of this section; Sec. 603.5(f) (to an
agent or contractor of a public official); Sec. 603.6(b)(1) through
(4), (6), and (7)(i) (as required by Federal UC law); and Sec. 603.22
(to a requesting agency for purposes of an IEVS), a State or State UC
agency must require the recipient to safeguard the information disclosed
against unauthorized access or redisclosure, as provided in paragraphs
(b) and (c) of this section, and must subject the recipient to penalties
provided by the State law for unauthorized disclosure of confidential UC
information.
(b) Safeguards to be required of recipients. (1) The State or State
UC agency must:
(i) Require the recipient to use the disclosed information only for
purposes authorized by law and consistent with an agreement that meets
the requirements of Sec. 603.10;
(ii) Require the recipient to store the disclosed information in a
place physically secure from access by unauthorized persons;
(iii) Require the recipient to store and process disclosed
information maintained in electronic format, such as magnetic tapes or
discs, in such a way that unauthorized persons cannot obtain the
information by any means;
(iv) Require the recipient to undertake precautions to ensure that
only authorized personnel are given access to disclosed information
stored in computer systems;
(v) Require each recipient agency or entity to:
(A) Instruct all personnel having access to the disclosed
information about confidentiality requirements, the requirements of this
subpart B, and the sanctions specified in the State law for unauthorized
disclosure of information, and
(B) Sign an acknowledgment that all personnel having access to the
disclosed information have been instructed in accordance with paragraph
(b)(1)(v)(A) of this section and will adhere to the State's or State UC
agency's confidentiality requirements and procedures which are
consistent with this subpart B and the agreement required by Sec.
603.10, and agreeing to report any infraction of these rules to the
State UC agency fully and promptly,
(vi) Require the recipient to dispose of information disclosed or
obtained, and any copies thereof made by the recipient agency, entity,
or contractor, after the purpose for which the information is disclosed
is served, except for disclosed information possessed by any court.
Disposal means return of the information to the disclosing State or
State UC agency or destruction of the information, as directed by the
State or State UC agency. Disposal includes deletion of personal
identifiers by the State or State UC agency in lieu of destruction. In
any case, the information disclosed must not be retained with personal
identifiers for longer than such period of time as the State or State UC
agency deems appropriate on a case-by-case basis; and
(vii) Maintain a system sufficient to allow an audit of compliance
with the requirements of this part.
[[Page 32]]
(2) In the case of disclosures made under Sec. 603.5(d)(2) (to a
third party (other than an agent) or disclosures made on an ongoing
basis), the State or State UC agency must also--
(i) Periodically audit a sample of transactions accessing
information disclosed under that section to assure that the entity
receiving disclosed information has on file a written release
authorizing each access. The audit must ensure that the information is
not being used for any unauthorized purpose;
(ii) Ensure that all employees of entities receiving access to
information disclosed under Sec. 603.5(d)(2) are subject to the same
confidentiality requirements, and State criminal penalties for violation
of those requirements, as are employees of the State UC agency.
(c) Redisclosure of confidential UC information. (1) A State or
State UC agency may authorize any recipient of confidential UC
information under paragraph (a) of this section to redisclose
information only as follows:
(i) To the individual or employer who is the subject of the
information;
(ii) To an attorney or other duly authorized agent representing the
individual or employer;
(iii) In any civil or criminal proceedings for or on behalf of a
recipient agency or entity;
(iv) In response to a subpoena only as provided in Sec. 603.7;
(v) To an agent or contractor of a public official only if the
person redisclosing is a public official, if the redisclosure is
authorized by the State law, and if the public official retains
responsibility for the uses of the confidential UC information by the
agent or contractor;
(vi) From one public official to another if the redisclosure is
authorized by the State law;
(vii) When so authorized by Section 303(e)(5), SSA, (redisclosure of
wage information by a State or local child support enforcement agency to
an agent under contract with such agency for purposes of carrying out
child support enforcement) and by State law; or
(viii) When specifically authorized by a written release that meets
the requirements of Sec. 603.5(d) (to a third party with informed
consent).
(2) Information redisclosed under paragraphs (c)(1)(v) and (vi) of
this section must be subject to the safeguards in paragraph (b) of this
section.
(d) The requirements of this section do not apply to disclosures of
UC information to a Federal agency which the Department has determined,
by notice published in the Federal Register, to have in place safeguards
adequate to satisfy the confidentiality requirement of Section
303(a)(1), SSA.
Sec. 603.10 What are the requirements for agreements?
(a) Requirements. (1) For disclosures of confidential UC information
under Sec. 603.5(d)(2) (to a third party (other than an agent) or
disclosures made on an ongoing basis); Sec. 603.5(e) (to a public
official), except as provided in paragraph (d) of this section; Sec.
603.5(f) (to an agent or contractor of a public official); Sec.
603.6(b)(1) through (4), (6), and (7)(i) (as required by Federal UC
law); and Sec. 603.22 (to a requesting agency for purposes of an IEVS),
a State or State UC agency must enter into a written, enforceable
agreement with any agency or entity requesting disclosure(s) of such
information. The agreement must be terminable if the State or State UC
agency determines that the safeguards in the agreement are not adhered
to.
(2) For disclosures referred to in Sec. 603.5(f) (to an agent or
contractor of a public official), the State or State UC agency must
enter into a written, enforceable agreement with the public official on
whose behalf the agent or contractor will obtain information. The
agreement must hold the public official responsible for ensuring that
the agent or contractor complies with the safeguards of Sec. 603.9. The
agreement must be terminable if the State or State UC agency determines
that the safeguards in the agreement are not adhered to.
(b) Contents of agreement--(1) In general. Any agreement required by
paragraph (a) of this section must include, but need not be limited to,
the following terms and conditions:
(i) A description of the specific information to be furnished and
the purposes for which the information is sought;
(ii) A statement that those who request or receive information under
the
[[Page 33]]
agreement will be limited to those with a need to access it for purposes
listed in the agreement;
(iii) The methods and timing of requests for information and
responses to those requests, including the format to be used;
(iv) Provision for paying the State or State UC agency for any costs
of furnishing information, as required by Sec. 603.8 (on costs);
(v) Provision for safeguarding the information disclosed, as
required by Sec. 603.9 (on safeguards); and
(vi) Provision for on-site inspections of the agency, entity, or
contractor, to assure that the requirements of the State's law and the
agreement or contract required by this section are being met.
(2) In the case of disclosures under Sec. 603.5(d)(2) (to a third
party (other than an agent) or disclosures made on an ongoing basis),
the agreement required by paragraph (a) of this section must assure that
the information will be accessed by only those entities with
authorization under the individual's or employer's release, and that it
may be used only for the specific purposes authorized in that release.
(c) Breach of agreement--(1) In general. If an agency, entity, or
contractor, or any official, employee, or agent thereof, fails to comply
with any provision of an agreement required by this section, including
timely payment of the State's or State UC agency's costs billed to the
agency, entity, or contractor, the agreement must be suspended, and
further disclosure of information (including any disclosure being
processed) to such agency, entity, or contractor is prohibited, until
the State or State UC agency is satisfied that corrective action has
been taken and there will be no further breach. In the absence of prompt
and satisfactory corrective action, the agreement must be canceled, and
the agency, entity, or contractor must be required to surrender to the
State or State UC agency all confidential UC information (and copies
thereof) obtained under the agreement which has not previously been
returned to the State or State UC agency, and any other information
relevant to the agreement.
(2) Enforcement. In addition to the actions required to be taken by
paragraph (c)(1) of this section, the State or State UC agency must
undertake any other action under the agreement, or under any law of the
State or of the United States, to enforce the agreement and secure
satisfactory corrective action or surrender of the information, and must
take other remedial actions permitted under State or Federal law to
effect adherence to the requirements of this subpart B, including
seeking damages, penalties, and restitution as permitted under such law
for any charges to granted funds and all costs incurred by the State or
the State UC agency in pursuing the breach of the agreement and
enforcement as required by this paragraph (c).
(d) The requirements of this section do not apply to disclosures of
UC information to a Federal agency which the Department has determined,
by notice published in the Federal Register, to have in place safeguards
adequate to satisfy the confidentiality requirement of Section
303(a)(1), SSA, and an appropriate method of paying or reimbursing the
State UC agency (which may involve a reciprocal cost arrangement) for
costs involved in such disclosures. These determinations will be
published in the Federal Register.
Sec. 603.11 How do States notify claimants and employers about the
uses of their information?
(a) Claimants. Every claimant for compensation must be notified, at
the time of application, and periodically thereafter, that confidential
UC information pertaining to the claimant may be requested and utilized
for other governmental purposes, including, but not limited to,
verification of eligibility under other government programs. Notice on
or attached to subsequent additional claims will satisfy the requirement
for periodic notice thereafter.
(b) Employers. Every employer subject to a State's law must be
notified that wage information and other confidential UC information may
be requested and utilized for other governmental purposes, including,
but not limited to, verification of an individual's eligibility for
other government programs.
[[Page 34]]
Sec. 603.12 How are the requirements of this part enforced?
(a) Resolving conformity and compliance issues. For the purposes of
resolving issues of conformity and substantial compliance with the
requirements set forth in subparts B and C, the provisions of 20 CFR
601.5(b) (informal discussions with the Department of Labor to resolve
conformity and substantial compliance issues), and 20 CFR 601.5(d)
(Secretary of Labor's hearing and decision on conformity and substantial
compliance) apply.
(b) Conformity and substantial compliance. Whenever the Secretary of
Labor, after reasonable notice and opportunity for a hearing to the
State UC agency of a State, finds that the State law fails to conform,
or that the State or State UC agency fails to comply substantially,
with:
(1) The requirements of Title III, SSA, implemented in subparts B
and C of this part, the Secretary of Labor shall notify the Governor of
the State and such State UC agency that further payments for the
administration of the State UC law will not be made to the State until
the Secretary of Labor is satisfied that there is no longer any such
failure. Until the Secretary of Labor is so satisfied, the Department of
Labor shall make no further payments to such State.
(2) The FUTA requirements implemented in this subpart B, the
Secretary of Labor shall make no certification under that section to the
Secretary of the Treasury for such State as of October 31 of the 12-
month period for which such finding is made.
Subpart C_Mandatory Disclosure for Income and Eligibility Verification
System (IEVS)
Sec. 603.20 What is the purpose and scope of this subpart?
(a) Purpose. Subpart C implements Section 303(f), SSA. Section
303(f) requires States to have in effect an income and eligibility
verification system, which meets the requirements of Section 1137, SSA,
under which information is requested and exchanged for the purpose of
verifying eligibility for, and the amount of, benefits available under
several federally assisted programs, including the Federal-State UC
program.
(b) Scope. This subpart C applies only to a State UC agency.
Note to paragraph (b):
Although not implemented in this part 603, Section 1137(a)(1), SSA,
provides that each State must require claimants for compensation to
furnish to the State UC agency their social security account numbers, as
a condition of eligibility for compensation, and further requires States
to utilize such account numbers in the administration of the State UC
laws. Section 1137(a)(3), SSA, further provides that employers must make
quarterly wage reports to a State UC agency, or an alternative agency,
for use in verifying eligibility for, and the amount of, benefits.
Section 1137(d)(1), SSA, provides that each State must require claimants
for compensation, as a condition of eligibility, to declare in writing,
under penalty of perjury, whether the individual is a citizen or
national of the United States, and, if not, that the individual is in a
satisfactory immigration status. Other provisions of Section 1137(d),
SSA, not implemented in this regulation require the States to obtain,
and individuals to furnish, information which shows immigration status,
and require the States to verify immigration status with the Bureau of
Citizenship and Immigration Services.
Sec. 603.21 What is a requesting agency?
For the purposes of this subpart C, requesting agency means:
(a) Temporary Assistance to Needy Families Agency--Any State or
local agency charged with the responsibility of administering a program
funded under part A of Title IV of the SSA.
(b) Medicaid Agency--Any State or local agency charged with the
responsibility of administering the provisions of the Medicaid program
under a State plan approved under Title XIX of the SSA.
(c) Food Stamp Agency--Any State or local agency charged with the
responsibility of administering the provisions of the Food Stamp Program
under the Food Stamp Act of 1977.
(d) Other SSA Programs Agency--Any State or local agency charged
with the responsibility of administering a program under a State plan
approved under Title I, X, XIV, or XVI (Supplemental Security Income for
the Aged, Blind, and Disabled) of the SSA.
(e) Child Support Enforcement Agency--Any State or local child
support
[[Page 35]]
enforcement agency charged with the responsibility of enforcing child
support obligations under a plan approved under part D of Title IV of
the SSA.
(f) Social Security Administration--Commissioner of the Social
Security Administration in establishing or verifying eligibility or
benefit amounts under Titles II (Old-Age, Survivors, and Disability
Insurance Benefits) and XVI (Supplemental Security Income for the Aged,
Blind, and Disabled) of the SSA.
Sec. 603.22 What information must State UC agencies disclose for
purposes of an IEVS?
(a) Disclosure of information. Each State UC agency must disclose,
upon request, to any requesting agency, as defined in Sec. 603.21, that
has entered into an agreement required by Sec. 603.10, wage information
(as defined at Sec. 603.2(k)) and claim information (as defined at
Sec. 603.2(a)) contained in the records of such State UC agency.
(b) Format. The State UC agency must adhere to standardized formats
established by the Secretary of HHS (in consultation with the Secretary
of Agriculture) and set forth in 42 CFR 435.960 (concerning standardized
formats for furnishing and obtaining information to verify income and
eligibility).
Sec. 603.23 What information must State UC agencies obtain from other
agencies, and crossmatch with wage information, for purposes
of an IEVS?
(a) Crossmatch with information from requesting agencies. Each State
UC agency must obtain such information from the Social Security
Administration and any requesting agency as may be needed in verifying
eligibility for, and the amount of, compensation payable under the State
UC law.
(b) Crossmatch of wage and benefit information. The State UC agency
must crossmatch quarterly wage information with UC payment information
to the extent that such information is likely, as determined by the
Secretary of Labor, to be productive in identifying ineligibility for
benefits and preventing or discovering incorrect payments.
PART 604_REGULATIONS FOR ELIGIBILITY FOR UNEMPLOYMENT COMPENSATION
Sec.
604.1 Purpose and scope.
604.2 Definitions.
604.3 Able and available requirement--general principles.
604.4 Application--ability to work.
604.5 Application--availability for work.
604.6 Conformity and substantial compliance.
Authority: 42 U.S.C. 1302(a); 42 U.S.C. 503(a)(2) and (5); 26 U.S.C.
3304(a)(1) and (4); 26 U.S.C. 3306(h); 42 U.S.C. 1320b-7(d); Secretary's
Order No. 4-75 (40 FR 18515); and Secretary's Order No. 14-75 (November
12, 1975).
Source: 72 FR 1893, Jan. 16, 2007, unless otherwise noted.
Sec. 604.1 Purpose and scope.
The purpose of this Part is to implement the requirements of Federal
UC law that limit a State's payment of UC to individuals who are able to
work and available for work. This regulation applies to all State UC
laws and programs.
Sec. 604.2 Definitions.
(a) Department means the United States Department of Labor.
(b) FUTA means the Federal Unemployment Tax Act, 26 U.S.C. 3301 et
seq.
(c) Social Security Act means the Social Security Act, 42 U.S.C. 501
et seq.
(d) State means a State of the United States of America, the
District of Columbia, the Commonwealth of Puerto Rico, and the United
States Virgin Islands.
(e) State UC agency means the agency of the State charged with the
administration of the State's UC law.
(f) State UC law means the law of a State approved under Section
3304(a), FUTA (26 U.S.C. 3304(a)).
(g) Unemployment Compensation (UC) means cash benefits payable to
individuals with respect to their unemployment.
(h) Week of unemployment means a week of total, part-total or
partial unemployment as defined in the State's UC law.
[[Page 36]]
Sec. 604.3 Able and available requirement--general principles.
(a) A State may pay UC only to an individual who is able to work and
available for work for the week for which UC is claimed.
(b) Whether an individual is able to work and available for work
under paragraph (a) of this section must be tested by determining
whether the individual is offering services for which a labor market
exists. This requirement does not mean that job vacancies must exist,
only that, at a minimum, the type of services the individual is able and
available to perform is generally performed in the labor market. The
State must determine the geographical scope of the labor market for an
individual under its UC law.
(c) The requirement that an individual be able to work and available
for work applies only to the week of unemployment for which UC is
claimed. It does not apply to the reasons for the individual's
separation from employment, although the separation may indicate the
individual was not able to work or available for work during the week
the separation occurred. This Part does not address the authority of
States to impose disqualifications with respect to separations. This
Part does not limit the States' ability to impose additional able and
available requirements that are consistent with applicable Federal laws.
Sec. 604.4 Application--ability to work.
(a) A State may consider an individual to be able to work during the
week of unemployment claimed if the individual is able to work for all
or a portion of the week claimed, provided any limitation on his or her
ability to work does not constitute a withdrawal from the labor market.
(b) If an individual has previously demonstrated his or her ability
to work and availability for work following the most recent separation
from employment, the State may consider the individual able to work
during the week of unemployment claimed despite the individual's illness
or injury, unless the individual has refused an offer of suitable work
due to such illness or injury.
Sec. 604.5 Application--availability for work.
(a) General application. A State may consider an individual to be
available for work during the week of unemployment claimed under any of
the following circumstances:
(1) The individual is available for any work for all or a portion of
the week claimed, provided that any limitation placed by the individual
on his or her availability does not constitute a withdrawal from the
labor market.
(2) The individual limits his or her availability to work which is
suitable for such individual as determined under the State UC law,
provided the State law definition of suitable work does not permit the
individual to limit his or her availability in such a way that the
individual has withdrawn from the labor market. In determining whether
the work is suitable, States may, among other factors, take into
consideration the education and training of the individual, the
commuting distance from the individual's home to the job, the previous
work history of the individual (including salary and fringe benefits),
and how long the individual has been unemployed.
(3) The individual is on temporary lay-off and is available to work
only for the employer that has temporarily laid-off the individual.
(b) Jury service. If an individual has previously demonstrated his
or her availability for work following the most recent separation from
employment and is appearing for duty before any court under a lawfully
issued summons during the week of unemployment claimed, a State may
consider the individual to be available for work. For such an
individual, attendance at jury duty may be taken as evidence of
continued availability for work. However, if the individual does not
appear as required by the summons, the State must determine if the
reason for non-attendance indicates that the individual is not able to
work or is not available for work.
(c) Approved training. A State must not deny UC to an individual for
failure to be available for work during a week if, during such week, the
individual is in training with the approval of the
[[Page 37]]
State agency. However, if the individual fails to attend or otherwise
participate in such training, the State must determine if the reason for
non-attendance or non-participation indicates that the individual is not
able to work or is not available for work.
(d) Self-employment assistance. A State must not deny UC to an
individual for failure to be available for work during a week if, during
such week, the individual is participating in a self-employment
assistance program and meets all the eligibility requirements of such
self-employment assistance program.
(e) Short-time compensation. A State must not deny UC to an
individual participating in a short-time compensation (also known as
worksharing) program under State UC law for failure to be available for
work during a week, but such individual will be required to be available
for his or her normal workweek.
(f) Alien status. To be considered available for work in the United
States for a week, the alien must be legally authorized to work that
week in the United States by the appropriate agency of the United States
government. In determining whether an alien is legally authorized to
work in the United States, the State must follow the requirements of
section 1137(d) of the SSA (42 U.S.C. 1320b-7(d)), which relate to
verification of and determination of an alien's status.
(g) Relation to ability to work requirement. A State may consider an
individual available for work if the State finds the individual able to
work under Sec. 604.4(b) despite illness or injury.
(h) Work search. The requirement that an individual be available for
work does not require an active work search on the part of the
individual. States may, however, require an individual to be actively
seeking work to be considered available for work, or States may impose a
separate requirement that the individual must actively seek work.
Sec. 604.6 Conformity and substantial compliance.
(a) In general. A State's UC law must conform with, and the
administration of its law must substantially comply with, the
requirements of this regulation for purposes of certification under:
(1) Section 3304(c) of the FUTA (26 U.S.C. 3304(c)), with respect to
whether employers are eligible to receive credit against the Federal
unemployment tax established by section 3301 of the FUTA (26 U.S.C.
3301), and
(2) Section 302 of the SSA (42 U.S.C. 502), with respect to whether
a State is eligible to receive Federal grants for the administration of
its UC program.
(b) Resolving Issues of Conformity and Substantial Compliance. For
the purposes of resolving issues of conformity and substantial
compliance with the requirements of this regulation, the following
provisions of 20 CFR 601.5 apply:
(1) Paragraph (b) of this section, pertaining to informal
discussions with the Department of Labor to resolve conformity and
substantial compliance issues, and
(2) Paragraph (d) of this section, pertaining to the Secretary of
Labor's hearing and decision on conformity and substantial compliance.
(c) Result of failure to conform or substantially comply--(1) FUTA
requirements. Whenever the Secretary of Labor, after reasonable notice
and opportunity for a hearing to the State UC agency, finds that the
State UC law fails to conform, or that the State or State UC agency
fails to comply substantially, with the requirements of the FUTA, as
implemented in this regulation, then the Secretary of Labor shall make
no certification under such act to the Secretary of the Treasury for
such State as of October 31 of the 12-month period for which such
finding is made. Further, the Secretary of Labor must notify the
Governor of the State and such State UC agency that further payments for
the administration of the State UC law will not be made to the State.
(2) SSA requirements. Whenever the Secretary of Labor, after
reasonable notice and opportunity for a hearing to the State UC agency,
finds that the State UC law fails to conform, or that the State or State
UC agency fails to comply substantially, with the requirements of title
III, SSA (42 U.S.C. 501-504), as implemented in this regulation,
[[Page 38]]
then the Secretary of Labor must notify the Governor of the State and
such State UC agency that further payments for the administration of the
State UC law will not be made to the State until the Secretary of Labor
is satisfied that there is no longer any such failure. Until the
Secretary of Labor is so satisfied, the Department of Labor will not
make further payments to such State.
PART 606_TAX CREDITS UNDER THE FEDERAL UNEMPLOYMENT TAX ACT; ADVANCES
UNDER TITLE XII OF THE SOCIAL SECURITY ACT
Subpart A_General
Sec.
606.1 Purpose and scope.
606.2 Total credits allowable.
606.3 Definitions.
606.4 Redelegation of authority.
606.5 Verification of estimates and review of determinations.
606.6 Information, reports, and studies.
Subpart B--Tax Credit Reduction [Reserved]
Subpart C_Relief From Tax Credit Reduction
606.20 Cap on tax credit reduction.
606.21 Criteria for cap.
606.22 Application for cap.
606.23 Avoidance of tax credit reduction.
606.24 Application for avoidance.
606.25 Waiver of and substitution for additional tax credit reduction.
606.26 Application for waiver and substitution.
Subpart D_Interest on Advances
606.30 Interest rates on advances.
606.31 Due dates for payment of interest. [Reserved]
606.32 Types of advances subject to interest.
606.33 No payment of interest from unemployment fund. [Reserved]
606.34 Reports of interest payable. [Reserved]
606.35 Order of application for repayments. [Reserved]
Subpart E_Relief from Interest Payment
606.40 May/September delay.
606.41 High unemployment deferral.
606.42 High unemployment delay.
606.44 Notification of determinations.
Authority: 42 U.S.C. 1102; 42 U.S.C. 1322(b)(2)(C); 26 U.S.C.
7805(a); Secretary's Order No. 3-2007, April 3, 2007 (72 FR 15907).
Source: 53 FR 37429, Sept. 26, 1988, unless otherwise noted.
Editorial Note: Nomenclature changes to part 606 appear at 71 FR
35513, June 21, 2006.
Subpart A_General
Sec. 606.1 Purpose and scope.
(a) In general. The regulations in this part 606 are issued to
implement the tax credit provisions of the Federal Unemployment Tax Act,
and the loan provisions of title XII of the Social Security Act. The
regulations on tax credits cover all of the subjects of 3302 of the
Federal Unemployment Tax Act (FUTA), except subsections (c)(3) and (e).
The regulations on loans cover all of the subjects in title XII of the
Social Security Act.
(b) Scope. This part 606 covers general matters relating to this
part in this subpart A, and in the following subparts includes specific
subjects described in general terms as follows:
(1) Subpart B describes the tax credit reductions under the Federal
Unemployment Tax Act, which relate to outstanding balances of advances
made under title XII of the Social Security Act.
(2) Subpart C describes the various forms of relief from tax credit
reductions, and the criteria and standards for grant of such relief in
the form of--
(i) A cap on tax credit reduction,
(ii) Avoidance of tax credit reduction, and
(iii) Waiver of and substitution for additional tax credit
reduction.
(3) Subpart D describes the interest rates on advances made under
title XII of the Social Security Act, dues dates for payment of
interest, and other related matters.
(4) Subpart E describes the various forms of relief from payment of
interest, and the criteria and standards for grant of such relief in the
form of--
(i) May/September delay of interest payments,
(ii) High unemployment deferral of interest payments,
(iii) High unemployment delay of interest payments, and
[[Page 39]]
(iv) Maintenance of solvency effort required to retain a deferral
previously granted.
Sec. 606.2 Total credits allowable.
The total credits allowed to an employer subject to the tax imposed
by section 3301 of the Federal Unemployment Tax Act shall not exceed 5.4
percent with respect to taxable years beginning after December 31, 1984.
Sec. 606.3 Definitions.
For the purposes of the Acts cited and this part--
Act means as appropriate the Federal Unemployment Tax Act (26 U.S.C.
3301-3311), or title XII of the Social Security Act (42 U.S.C. 1321-
1324).
Advance means a transfer of funds to a State unemployment fund, for
the purpose of paying unemployment compensation, from the Federal
unemployment account in the Unemployment Trust Fund, pursuant to section
1202 of the Social Security Act.
Average High Cost Multiple (AHCM) for a State as of December 31 of a
calendar year is calculated by dividing the State's reserve ratio, as
defined in Sec. 606.3, by the State's average high cost rate (AHCR), as
defined in Sec. 606.3, for the same year. Final calculations are
rounded to the nearest multiple of 0.01.
Average High Cost Rate (AHCR) for a State is calculated as follows:
(1) Determine the time period over which calculations are to be made
by selecting the longer of:
(i) The 20-calendar year period that ends with the year for which
the AHCR calculation is made; or
(ii) The number of years beginning with the calendar year in which
the first of the last three completed national recessions began, as
determined by the National Bureau of Economic Research, and ending with
the calendar year for which the AHCR is being calculated.
(2) For each calendar year during the selected time period,
calculate the benefit-cost ratio, as defined in Sec. 606.3; and
(3) Average the three highest calendar year benefit cost ratios for
the selected time period from paragraph (2) of this definition. Final
calculations are rounded to the nearest multiple of 0.01 percent.
Benefit-cost ratio for a calendar year is the percentage obtained by
dividing--
(1) The total dollar sum of--
(i) All compensation actually paid under the State law during such
calendar year, including in such total sum all regular, additional, and
extended compensation, as defined in section 205 of the Federal-State
Extended Unemployment Compensation Act of 1970, and excluding from such
total sum--
(A) Any such compensation paid for which the State is entitled to
reimbursement or was reimbursed under the provisions of any Federal Law,
and
(B) Any such compensation paid which is attributable to services
performed for a reimbursing employer, and which is not included in the
total dollar amount reported under paragraph (c)(1)(i)(A) of this
section, and
(ii) Any interest paid during such calendar year on any advance, by
(2) The total wages (as defined in Sec. 606.3) with respect to such
calendar year.
(3) For cap purposes, if any percentage determined by this
computation for a calendar year is not a multiple of 0.1 percent, such
percentage shall be reduced to the nearest multiple of 0.1 percent. For
funding goal purposes, if any percentage determined by this computation
for a calendar year is not a multiple of 0.01 percent, such percentage
is rounded to the nearest multiple of 0.01 percent.
Contributions means payments required by a State law to be made into
an unemployment fund by any person on account of having individuals in
his employ, to the extent that such payments are made by him without
being deducted or deductible from the remuneration of individuals in his
employ.
Federal unemployment tax means the excise tax imposed under section
3301 of the Federal Unemployment Tax Act on employers with respect to
having individuals in their employ.
Fiscal year means the Federal fiscal year which begins on October 1
of a year and ends on September 30, of the next succeeding year.
FUTA refers to the Federal Unemployment Tax Act.
Reserve ratio is calculated by dividing the balance in the State's
account in
[[Page 40]]
the unemployment trust fund (UTF) as of December 31 of such year by the
total wages paid workers covered by the unemployment compensation (UC)
program during the 12 months ending on December 31 of such year. Final
calculations are rounded to the nearest multiple of 0.01 percent.
State unemployment fund or unemployment fund means a special fund
established under a State law for the payment of unemployment
compensation to unemployed individuals, and which is an ``unemployment
fund'' as defined in section 3306(f) of the Federal Unemployment Tax
Act.
Taxable year means the calendar year.
Unemployment tax rate means, for any taxable year and with respect
to any State, the percentage obtained by dividing the total amount of
contributions paid into the State unemployment fund with respect to such
taxable year by total wages as defined in Sec. 606.3.
Wages, taxable means the total sum of remuneration which is subject
to contributions under a State law.
Wages, total means the total sum of all remuneration covered by a
State law, disregarding any dollar limitation on the amount of
remuneration which is subject to contributions under the State law.
[53 FR 37429, Sept. 26, 1988, as amended at 71 FR 35513, June 21, 2006;
75 FR 57156, Sept. 17, 2010]
Sec. 606.4 Redelegation of authority.
(a) Redelegation to OWS Administrator. The Administrator, Office of
Workforce Security (hereinafter ``OWS Administrator''), is redelegated
authority to make the determinations required under this part. This
redelegation is contained in Employment and Training Order No. 1-84,
published in the Federal Register on November 14, 1983 (48 FR 51870).
(b) Delegation by Governor. The Governor of a State, as used in this
part, refers to the highest executive official of a State. Wherever in
this part an action is required by or of the Governor of a State, such
action may be taken by the Governor or may be taken by a delegatee of
the Governor if the Department is furnished appropriate proof of an
authoritative delegation of authority.
[53 FR 37429, Sept. 26, 1988, as amended at 71 FR 35514, June 21, 2006]
Sec. 606.5 Verification of estimates and review of determinations.
The Department of Labor (hereinafter ``Department'') shall verify
all information and data provided by a State under this part, and the
State shall comply with such provisions as the Department considers
necessary to assure the correctness and verification of such information
and data. The State agency of a State affected by a determination made
by the OWS Administrator under this part may seek review of such
determination by a higher level official of the Employment and Training
Administration.
Sec. 606.6 Information, reports, and studies.
A State shall furnish to the Secretary of Labor such information and
reports and conduct such studies as the Secretary determines are
necessary or appropriate for carrying out the purposes of this part,
including any additional information or data the OWS Administrator may
require for the purposes of making determinations under subparts C and E
of this part.
[53 FR 37429, Sept. 26, 1988, as amended at 71 FR 35514, June 21, 2006]
Subpart B--Tax Credit Reduction [Reserved]
Subpart C_Relief From Tax Credit Reduction
Sec. 606.20 Cap on tax credit reduction.
(a) Applicability. Subsection (f) of section 3302 of FUTA authorizes
a limitation (cap) on the reduction of tax credits by reason of an
outstanding balance of advances, if the OWS Administrator determines
with respect to a State, on or before November 10 of a taxable year,
that--
(1) No action was taken by the State during the 12-month period
ending on September 30 of such taxable year which has resulted, or will
result, in a reduction in the State's unemployment tax effort, as
defined in Sec. 606.21(a);
[[Page 41]]
(2) No action was taken by the State during the 12-month period
ending on September 30 of such taxable year which has resulted, or will
result, in a net decrease in the solvency of the State unemployment
compensation system, as defined in Sec. 606.21(b);
(3) The State unemployment tax rate (as defined in Sec. 606.3) for
the taxable year equals or exceeds the average benefit-cost ratio (as
defined in Sec. 606.3) for the calendar years in the five-calendar year
period ending with the calendar year immediately preceding the taxable
year for which the cap is requested, under the rules specified in Sec.
606.21 (c) and (d); and
(4) The outstanding balance of advances to the State on September 30
of the taxable year was not greater than the outstanding balance of
advances to the State on September 30 of the third preceding taxable
year.
(b) Maximum tax credit reduction. If a State qualifies for a cap,
the maximum tax credit reduction for the taxable year shall not exceed
0.6 percent, or, if higher, the tax credit reduction that was in effect
for the taxable year preceding the taxable year for which the cap is
requested.
(c) Year not taken into account. If a State qualifies for a cap for
any year, the year and January 1 of the year to which the cap applies
will not be taken into account for purposes of determining reduction of
tax credit for subsequent taxable years.
(d) Partial caps. Partial caps obtained under subsection (f)(8) are
no longer available. Nevertheless, for the purposes of applying section
3302(c)(2) to subsequent taxable years, partial cap credits earned will
be taken into account for purposes of determining reduction of tax
credits. Also, the taxable year to which the partial cap applied (and
January 1 thereof) will be taken into account for purposes of
determining reduction of tax credits for subsequent taxable years.
[53 FR 37429, Sept. 26, 1988, as amended at 75 FR 57156, Sept. 17, 2010]
Sec. 606.21 Criteria for cap.
(a) Reduction in unemployment tax effort. (1) For purposes of
paragraph (a)(1) of Sec. 606.20, a reduction in a State's unemployment
tax effort will have occurred with respect to a taxable year if any
action is or was taken (legislative, judicial, or administrative,) that
is effective during the 12-month period ending on September 30 of such
taxable year, which has resulted in or will result in a reduction of the
amount of contributions paid or payable or the amounts that were or
would have been paid or payable but for such action.
(2) Actions that will result in a reduction in tax effort include,
but are not limited to, a reduction in the taxable wage base, the tax
rate schedule, tax rates, or taxes payable (including surtaxes) that
would not have gone into effect but for the legislative, judicial, or
administrative action taken. Notwithstanding the foregoing criterion, a
reduction in unemployment tax effort resulting from any provision of the
State law enacted prior to August 13, 1981, will not be taken into
account as a reduction in the State's unemployment tax effort for the
purposes of this section.
(b) Net decrease in solvency. For purposes of paragraph (a)(2) of
Sec. 606.20, a net decrease in the solvency of the State's unemployment
compensation system will have occurred with respect to a taxable year if
any action is or was taken (legislative, judicial, or administrative),
that is effective during the 12-month period ending on September 30 of
such taxable year, which has resulted in or will result in an increase
in benefits without at least an equal increase in taxes, or a decrease
in taxes without at least an equal decrease in benefits. Notwithstanding
the foregoing criterion, a decrease in solvency resulting from any
provision of the State law enacted prior to August 13, 1981, will not be
taken into account as a reduction in solvency of the State's
unemployment compensation system for the purposes of this section.
(c) State unemployment tax rate. For purposes of paragraph (a)(3) of
Sec. 606.20, the State unemployment tax rate is defined in Sec. 606.3.
If such percentage is not a multiple of 0.1 percent, the percentage
shall remain unrounded.
(d) State five-year average benefit cost ratio. The average benefit-
cost ratio for the 5 preceding calendar years is the percentage
determined by dividing the sum of the benefit-cost ratios for the 5
[[Page 42]]
years by five. If such percentage is not a multiple of 0.1 percent, the
percentage shall remain unrounded.
[53 FR 37429, Sept. 26, 1988, as amended at 75 FR 57156, Sept. 17, 2010]
Sec. 606.22 Application for cap.
(a) Application. (1) The Governor of the State shall make
application, addressed to the Secretary of Labor, no later than July 1
of a taxable year with respect to which a State requests a cap on tax
credit reduction. The Governor is required to notify the Department on
or before October 15 of such taxable year of any action occurring after
the date of the initial application and effective prior to October 1 of
such year that would impact upon the State's application.
(2) The OWS Administrator will make a determination on the
application on or before November 10 of such taxable year, will notify
the applicant and the Secretary of the Treasury of such determination,
and will cause notice of such determination to be published in the
Federal Register.
(b) Anticipated impact statement. In support of the application by
the Governor, there shall be submitted with the application (on or
before October 15), for the purposes of the criteria described in
Sec. Sec. 606.20(a) (1) and (2) and 606.21 (a) and (b), a description
of all statutory provisions enacted or amended, regulations adopted or
revised, administrative policies and procedures adopted or revised, and
judicial decisions given effect, which are effective during the 12-month
period ending on September 30 of the taxable year for which a cap on tax
credit reduction is requested, and an anticipated impact statement (AIS)
for each such program action in the following respect--
(1) The estimated dollar effect on each program action upon
expenditures for compensation from the State unemployment fund and for
the amounts of contributions paid or payable in such 12-month period,
including the effect of interaction among program actions, and with
respect to program actions for which dollar impact cannot be estimated
or is minor or negligible, indicate whether the impact is positive or
negative;
(2) If a program action has no such dollar effect, an explanation of
why there is or will be no such effect;
(3) A description of assumptions and methodology used and the basis
for the financial estimate of the impact of each program action
described in paragraphs (b)(1) and (b)(2) of this section; and
(4) A comparision of the program actions described in paragraphs
(b)(1) and (b)(2) of this section with the program actions prior to the
Federal fiscal year (as defined in Sec. 606.3) which ends on such
September 30.
(c) Unemployment tax rate. With respect to the unemployment tax rate
criterion described in Sec. Sec. 606.20(a)(3) and 606.21(c), the
application shall include an estimate for the taxable year with respect
to which a cap on tax credit reduction is requested and actual data for
the prior two years as follows:
(1) The amount of taxable wages as defined in Sec. 606.3;
(2) The amount of total wages as defined in Sec. 606.3; and
(3) The estimated distribution of taxable wages, as defined in Sec.
606.3, by tax rate under the State law.
(d) Benefit cost ratio. With respect to the benefit cost ratio
criterion described in Sec. Sec. 606.20(a)(3) and 606.21(d), the
application shall include for each of the five calendar years prior to
the taxable year for which a cap on tax credit reduction is requested,
the following data:
(1) The total dollar sum of compensation actually paid under the
State law during the calendar year, including in such total sum all
regular, additional, and extended compensation as defined in section 205
of the Federal-State Extended Unemployment Compensation Act of 1970, but
excluding from such total sum--
(i) The total dollar amount of such compensation paid for which the
State is entitled to reimbursement or was reimbursed under the
provisions of any Federal law;
(ii) The total dollar amount of such compensation paid which is
attributable to services performed for a reimbursing employer, and which
is not included in the total amount reported under paragraph (d)(1)(i)
of this section;
[[Page 43]]
(2) The total dollar amount of interest paid during the calendar
year on any advance; and
(3) The total dollar amount of wages (as defined in Sec. 606.3)
with respect to such calendar year.
(e) Documentation required. Copies of the sources of or authority
for each program action described in paragraph (b) of this section shall
be submitted with each application for a cap on tax credit reduction. In
addition, a notation shall be made on each AIS of where all figures
referred to are contained in reports required by the Department or in
other data sources.
(f) State contact person. The Department may request additional
information or clarification of information submitted bearing upon an
application for a cap on tax credit reduction. To expedite requests for
such information, the name and telephone number of an appropriate State
official shall be included in the application by the Governor.
[53 FR 37429, Sept. 26, 1988, as amended at 75 FR 57156, Sept. 17, 2010]
Sec. 606.23 Avoidance of tax credit reduction.
(a) Applicability. Subsection (g) of section 3302 of FUTA authorizes
a State to avoid a tax credit reduction for a taxable year by meeting
the three requirements of subsection (g). These requirements are met if
the OWS Administrator determines that:
(1) Advances were repaid by the State during the one-year period
ending on November 9 of the taxable year in an amount not less than the
sum of--
(i) The potential additional taxes (as estimated by the OWS
Administrator) that would be payable by the State's employers if
paragraph (2) of section 3302(c) of FUTA were applied for such taxable
year (as estimated with regard to the cap on tax credit reduction for
which the State qualifies under Sec. Sec. 606.20 to 606.22 with respect
to such taxable year), and
(ii) Any advances made to such State during such one-year period
under title XII of the Social Security Act;
(2) There will be adequate funds in the State unemployment fund (as
estimated by the OWS Administrator) sufficient to pay all benefits when
due and payable under the State law during the three-month period
beginning on November 1 of such taxable year without receiving any
advance under title XII of the Social Security Act; and
(3) There is a net increase (as estimated by the OWS Administrator)
in the solvency of the State unemployment compensation system for the
taxable year and such net increase equals or exceeds the potential
additional taxes for such taxable year as estimated under paragraph
(a)(1)(i) of this section.
(b) Net increase in solvency. (1) The net increase in solvency for a
taxable year, as determined for the purposes of paragraph (a)(3) of this
section, must be attributable to legislative changes made in the State
law after the later of--
(i) September 3, 1982, or
(ii) The date on which the first advance is taken into account in
determining the amount of the potential additional taxes.
(2) The OWS Administrator shall determine the net increase in
solvency by first estimating the difference between revenue receipts and
benefit outlays under the law in effect for the year for which avoidance
is requested, as if the relevant changes in State law referred to in
paragraph (b)(1) of this section were not in effect for such year. The
OWS Administrator shall then estimate the difference between revenue
receipts and benefit outlays under the law in effect for the year for
which the avoidance is requested, taking into account the relevant
changes in State law referred to in paragraph (b)(1) of this section.
The amount (if any) by which the second estimated difference exceeds the
first estimated difference shall constitute the net increase in solvency
for the purposes of this section.
(c) Year taken into account. If a State qualifies for avoidance for
any year, that year and January 1 of that year to which the avoidance
applies will be taken into account for purposes of determining reduction
of tax credits for subsequent taxable years.
Sec. 606.24 Application for avoidance.
(a) Application. (1) The Governor of the State shall make
application, addressed to the Secretary of Labor, no later than July 1
of a taxable year with
[[Page 44]]
respect to which a State requests avoidance of tax credit reduction. The
Governor is required to notify the Department on or before October 15 of
such taxable year of any action impacting upon the State's application
occurring subsequent to the date of the initial application and on or
before November 10.
(2) The OWS Administrator will make a determination on the
application as of November 10 of such taxable year, will notify the
applicant and the Secretary of the Treasury of such determination, and
will cause notice of such determination to be published in the Federal
Register.
(b) Information. (1) The application shall include a statement of
the amount of advances repaid and to be repaid during the one-year
period ending on November 9 of the taxable year for which avoidance is
requested. If the amount repaid as of the date of the application is
less than the amount required to satisfy the provisions of Sec.
606.23(a)(1), the Governor shall provide a report later of the
additional repayments that have been made in the remainder of the one-
year period ending on November 9 of the taxable year, for the purposes
of meeting the provisions of Sec. 606.23(a)(1).
(2) The application also shall include estimates of revenue
receipts, benefit outlays, and end-of-month fund balance for each month
in the period beginning with September of the taxable year for which
avoidance is requested through the subsequent January. Actual data for
the comparable period of the preceding year also shall be included in
the application in order to determine the reasonableness of such
estimates.
(3) The application also shall include a description of State law
changes, effective for the taxable year for which the avoidance is
requested, which resulted in a net increase in the solvency of the State
unemployment compensation system, and documentation which supports the
State's estimate of the net increase in solvency for such taxable year.
Sec. 606.25 Waiver of and substitution for additional tax credit
reduction.
A provision of subsection (c)(2) of section 3302 of FUTA provides
that, for a State that qualifies, the additional tax credit reduction
applicable under subparagraph (C), beginning in the fifth consecutive
year of a balance of outstanding advances, shall be waived and the
additional tax credit reduction applicable under subparagraph (B) shall
be substituted. The waiver and substitution are granted if the OWS
Administrator determines that the State has taken no action, effective
during the 12-month period ending on September 30 of the year for which
the waiver and substitution are requested, which has resulted or will
result in a net decrease in the solvency of the State unemployment
compensation system as determined for the purposes of Sec. Sec.
606.20(a)(2) and 606.21(b).
Sec. 606.26 Application for waiver and substitution.
(a) Application. The Governor of the State shall make application
addressed to the Secretary of Labor, no later than July 1 of a taxable
year with respect to which a State requests waiver and substitution. Any
such application shall contain the supportive data and information
required by Sec. 606.22(b) for the purposes of Sec. Sec. 606.20(a)(2)
and 606.21(b). The Governor is required to notify the Department on or
before October 15 of such taxable year of action occurring after the
date of the initial application and effective prior to October 1 of such
year that would impact upon the State's application.
(b) Notification of determination. The OWS Administrator will make a
determination on the application as of November 10 of the taxable year,
will notify the applicant and the Secretary of the Treasury of the
resulting tax credit reduction to be applied, and will cause notice of
such determination to be published in the Federal Register.
Subpart D_Interest on Advances
Sec. 606.30 Interest rates on advances.
Advances made to States pursuant to title XII of the Social Security
Act shall be subject to interest payable on the due dates specified in
Sec. 606.31. \1\ The interest rate for each calendar year
[[Page 45]]
will be 10 percent or, if less, the rate determined by the Secretary of
the Treasury and announced to the States by the Department.
---------------------------------------------------------------------------
\1\ (Editorial note: This section will be added at a later date.)
[53 FR 37429, Sept. 26, 1988, as amended at 71 FR 35514, June 21, 2006]
Sec. 606.31 Due dates for payment of interest. [Reserved]
Sec. 606.32 Types of advances subject to interest.
(a) Payment of interest. Except as otherwise provided in paragraph
(b) of this section each State shall pay interest on any advance made to
such State under title XII of the Social Security Act.
(b) Cash flow loans--(1) Availability of interest-free advances.
Advances are deemed cash flow loans and shall be free of interest
provided that:
(i) The advances are repaid in full prior to October 1 of the
calendar year in which the advances are made;
(ii) The State does not receive an additional advance after
September 30 of the same calendar year in which the advance is made. If
the State receives an additional advance after September 30 of the same
calendar year in which earlier advances were made, interest on the fully
repaid earlier advance(s) is due and payable not later than the day
following the date of the first such additional advance. The
administrator of the State agency must notify the Secretary of Labor no
later than September 10 of the same calendar year of those loans deemed
to be cash flow loans and not subject to interest. This notification
must include the date and amount of each loan made beginning January 01
through September 30 of the same calendar year, and a copy of
documentation sent to the Secretary of the Treasury requesting loan
repayment transfer(s) from the State's account in the UTF to the Federal
unemployment account in the UTF; and
(iii) The State has met the funding goals described in paragraph
(b)(2) or (b)(3) of this section.
(2) Funding goals. This paragraph (b)(2) is applicable to all States
as of January 1, 2019. A State has met the funding goals requirement if:
(i) The State, as of December 31 of any of the 5 consecutive
calendar years preceding the calendar year in which such advances are
made, had an AHCM of at least 1.00, as determined under Sec. 606.3; and
(ii) The State maintained tax effort as determined under paragraph
(b)(4) of this section.
(3) Phasing in funding goals. This paragraph (b)(3) applies for
calendar years 2014 through 2018. A State has met the funding goals
requirement if it has satisfied the solvency criterion in paragraph (i),
and the maintenance of tax effort criteria in paragraph (ii), of this
Sec. 606.32(b)(3).
(i) A State has met the solvency criterion if:
(A) For calendar year 2014, as of December 31 of any of the 5
consecutively preceding calendar years, the State had an AHCM of at
least 0.50, as determined under Sec. 606.3;
(B) For calendar year 2015, as of December 31 of any of the 5
consecutively preceding calendar years, the State had an AHCM of at
least 0.60, as determined under Sec. 606.3;
(C) For calendar year 2016, as of December 31 of any of the 5
consecutively preceding calendar years, the State had an AHCM of at
least 0.70, as determined under Sec. 606.3;
(D) For calendar year 2017, as of December 31 of any of the 5
consecutively preceding calendar years, the State had an AHCM of at
least 0.80, as determined under Sec. 606.3;
(E) For calendar year 2018, as of December 31 of any of the 5
consecutively preceding calendar years, the State had an AHCM of at
least 0.90, as determined under Sec. 606.3;
(ii) A State has met the maintenance of tax effort criteria if it
maintained tax effort as determined under paragraph (b)(4) of this
section.
(4) Maintenance of tax effort criteria. A State has maintained tax
effort if, for every year between the last calendar year in which it met
the solvency criterion in paragraph (b)(2)(i) or (b)(3)(i) of this
section and the calendar year in which an interest-free advance is
taken, the State's unemployment tax rate as defined in Sec. 606.3 for
the calendar year is at least--
(i) 80 percent of the prior year's unemployment tax rate; and
[[Page 46]]
(ii) 75 percent of the State 5-year average benefit-cost ratio, as
determined under Sec. 606.21(d).
[53 FR 37429, Sept. 26, 1988, as amended at 75 FR 57156, Sept. 17, 2010]
Sec. 606.33 No payment of interest from unemployment fund. [Reserved]
Sec. 606.34 Reports of interest payable. [Reserved]
Sec. 606.35 Order of application for repayments. [Reserved]
Subpart E_Relief from Interest Payment
Sec. 606.40 May/September delay.
Subsection (b)(3)(B) of section 1202 of the Social Security Act
permits a State to delay payment of interest accrued on advances made
during the last five months of the Federal fiscal year (May, June, July,
August, and September) to no later than December 31 of the next
succeeding calendar year. If the payment is delayed, interest on the
delayed payment will accrue from the normal due date (i.e., September
30) and in the same manner as if the interest due on the advance(s) was
an advance made on such due date. The Governor of a State which has
decided to delay such interest payment shall notify the Secretary of
Labor no later than September 1 of the year with respect to which the
delay is applicable.
Sec. 606.41 High unemployment deferral.
(a) Applicability. Subsection (b)(3)(C) of section 1202 of the
Social Security Act permits a State to defer payment of, and extend the
payment for, 75 percent of interest charges otherwise due prior to
October 1 of a year if the OWS Administrator determines that high
unemployment conditions existed in the State.
(b) High unemployment defined. For purposes of this section, high
unemployment conditions existed in the State if the State's rate of
insured unemployment (as determined for purposes of 20 CFR 615.12) under
the State law with respect to the period consisting of the first six
months of the preceding calendar year equalled or exceeded 7.5 percent;
this means that in weeks 1 (that week which includes January 1 of the
year) through 26 of such preceding calendar year, the rate of insured
unemployment reported by the State and accepted by the Department under
20 CFR part 615 must have averaged a percentage equalling or exceeding
7.5 percent.
(c) Schedule of deferred payments. The State must pay prior to
October 1 one-fourth of the interest due, and must pay a minimum of one-
third of the deferred amount prior to October 1 in each of the three
years following the year in which deferral was granted; at the State's
option payment of deferred interest may be accelerated.
(d) Related criteria. Timely payment of one-fourth of the interest
due prior to October 1 is a precondition to obtaining deferral of
payment of 75 percent of the interest due. No interest shall accrue on
such deferred interest.
(e) Application for deferral and determination. (1) The Governor of
a State which has decided to request such deferral of interest payment
shall apply to the Secretary of Labor no later than July 1 of the
taxable year for which the deferral is requested.
(2) The OWS Administrator will determine whether deferral is or is
not granted on the basis of the Department's records of reports of the
rates of insured unemployment and information obtained from the
Department of the Treasury as to the timely and full payment of one-
fourth of the interest due.
Sec. 606.42 High unemployment delay.
(a) Applicability. Paragraph (9) of section 1202 (b) of the Social
Security Act permits a State to delay for a period not exceeding nine
months the interest payment due prior to October 1 if, for the most
recent 12-month period prior to such October 1 for which data are
available, the State had an average total unemployment rate of 13.5
percent or greater.
(b) Delayed due date. An interest payment delayed under paragraph
(9) must be paid in full not later than the last official Federal
business day prior to the following July 1; at the State's option
payment of delayed interest may be accelerated. No interest shall accrue
on such delayed payment.
[[Page 47]]
(c) Application for delay in payment and determination. (1) The
Governor of a State which has decided to request delay in payment of
interest under paragraph (9) shall apply to the Secretary of Labor no
later than July 1 of the taxable year for which the delay is requested.
(2) The OWS Administrator will determine whether delay is or is not
granted on the basis of seasonally unadjusted civilian total
unemployment rate data published by the Department's Bureau of Labor
Statistics.
Sec. 606.44 Notification of determinations.
The OWS Administrator will make determinations under Sec. Sec.
606.41, 606.42, and 606.43 on or before September 10 of the taxable
year, will promptly notify the applicants and the Secretary of the
Treasury of such determinations, and will cause notice of such
determinations to be published in the Federal Register. The OWS
Administrator also will inform the Secretary of the Treasury and cause
notice to be published in the Federal Register of information with
respect to delayed payment of interest as provided in Sec. 606.40.
PART 609_UNEMPLOYMENT COMPENSATION FOR FEDERAL CIVILIAN EMPLOYEES
Subpart A_General Provisions
Sec.
609.1 Purpose and application.
609.2 Definitions of terms.
Subpart B_Administration of UCFE Program
609.3 Eligibility requirements for UCFE.
609.4 Weekly and maximum benefit amounts.
609.5 Claims for UCFE.
609.6 Determinations of entitlement; notices to individual.
609.7 Appeal and review.
609.8 The applicable State for an individual.
609.9 Provisions of State law applicable to UCFE claims.
609.10 Restrictions on entitlement.
609.11 Overpayments; penalties for fraud.
609.12 Inviolate rights to UCFE.
609.13 Recordkeeping; disclosure of information.
609.14 Payments to States.
609.15 Public access to Agreements.
609.16 Administration in absence of an Agreement.
609.17 Information, reports, and studies.
Subpart C_Responsibilities of Federal Agencies
609.20 Information to Federal civilian employees.
609.21 Findings of Federal agency.
609.22 Correcting Federal findings.
609.23 Furnishing additional information.
609.24 Reconsideration of Federal findings.
609.25 Furnishing other information.
609.26 Liaison with Department.
Authority: 5 U.S.C. 8508; Secretary's Order No. 4-75, 40 FR 18515;
(5 U.S.C. 301). Interpret and apply secs. 8501-8508 of title 5, United
States Code.
Source: 47 FR 54687, Dec. 3, 1982, unless otherwise noted.
Subpart A_General Provisions
Sec. 609.1 Purpose and application.
(a) Purpose. Subchapter I of chapter 85, title 5 of the United
States Code, as amended by Pub. L. 94-566, 90 Stat. 2667, 5 U.S.C. 8501-
8508, provides for a permanent program of unemployment compensation for
unemployed Federal civilian employees. The unemployment compensation
provided for in subchapter I is hereinafter referred to as unemployment
compensation for Federal employees, or UCFE. The regulations in this
part are issued to implement the UCFE Program.
(b) First rule of construction. The Act and the implementing
regulations in this part shall be construed liberally so as to carry out
the purposes of the Act.
(c) Second rule of construction. The Act and the implementing
regulations in this part shall be construed so as to assure insofar as
possible the uniform interpretation and application of the Act
throughout the United States.
(d) Effectuating purpose and rules of construction. (1) In order to
effectuate the provisions of this section, each State agency shall
forward to the United States Department of Labor (hereafter Department),
not later than 10 days after issuance, a copy of each judicial or
administrative decision ruling on an individual's entitlement to payment
of UCFE or to credit for a waiting period. On request of the Department,
a State agency shall forward to the Department a copy of any
determination or redetermination ruling on
[[Page 48]]
an individual's entitlement to UCFE or waiting period credit.
(2) If the Department believes that a determination,
redetermination, or decision is inconsistent with the Department's
interpretation of the Act or this part, the Department may at any time
notify the State agency of the Department's view. Thereafter the State
agency shall issue a redetermination or appeal if possible, and shall
not follow such determination, redetermination, or decision as a
precedent; and, in any subsequent proceedings which involve such
determination, redetermination, or decision, or wherein such
determination, redetermination, or decision is cited as precedent or
otherwise relied upon, the State agency shall inform the claims deputy
or hearing officer or court of the Department's view and shall make all
reasonable efforts, including appeal or other proceedings in an
appropriate forum, to obtain modification, limitation, or overruling of
the determination, redetermination, or decision.
(3) If the Department believes that a determination,
redetermination, or decision is patently and flagrantly violative of the
Act or this part, the Department may at any time notify the State agency
of the Department's view. If the determination, redetermination, or
decision in question denies UCFE to a claimant, the steps outlined in
paragraph (d)(2) of this section shall be followed by the State agency.
If the determination, redetermination, or decision in question awards
UCFE to a claimant, the benefits are ``due'' within the meaning of
section 303(a)(1) of the Social Security Act, 42 U.S.C. 503(a)(1), and
therefore must be paid promptly to the claimant. However, the State
agency shall take the steps outlined in paragraph (d)(2) of this
section, and payments to the claimant may be temporarily delayed if
redetermination or appeal action is taken not more than one business day
following the day on which the first payment otherwise would be issued
to the claimant; and the redetermination action is taken or appeal is
filed to obtain a reversal of the award of UCFE and a ruling consistent
with the Department's view; and the redetermination action or appeal
seeks an expedited redetermination or appeal within not more than two
weeks after the redetermination action is taken or the appeal is filed.
If redetermination action is not taken or appeal is not filed within the
above time limit, or a redetermination or decision is not obtained
within the two-week limit, or any redetermination or decision or order
is issued which affirms the determination, redetermination, or decision
awarding UCFE or allows it to stand in whole or in part, the benefits
awarded must be paid promptly to the claimant.
(4)(i) If any determination, redetermination, or decision, referred
to in paragraph (d)(2) or paragraph (d)(3) of this section, is treated
as a precedent for any future UCFE claim or claim under the UCX Program
(part 614 of this chapter), the Secretary will decide whether the
Agreement with the State entered into under the Act shall be terminated.
(ii) In the case of any determination, redetermination, or decision
that is not legally warranted under the Act or this part, including any
determination, redetermination, or decision referred to in paragraph
(d)(3) of this section, the Secretary will decide whether the State
shall be required to restore the funds of the United States for any sums
paid under such a determination, redetermination, or decision, and
whether, in the absence of such restoration, the Agreement with the
State shall be terminated and whether other action shall be taken to
recover such sums for the United States.
(5) A State agency may request reconsideration of a notice issued
pursuant to paragraph (d)(2) of paragraph (d)(3) of this section, and
shall be given an opportunity to present views and arguments if desired.
(6) Concurrence of the Department in a determination,
redetermination, or decision shall not be presumed from the absence of a
notice issued pursuant to this section.
Sec. 609.2 Definitions of terms.
For the purposes of the Act and this part:
(a) Act means subchapter I of chapter 85, title 5, United States
Code, 5 U.S.C. 8501-8508.
[[Page 49]]
(b) Agreement means the agreement entered into pursuant to the Act
between a State and the Secretary under which the State agency of the
State agrees to make payments of unemployment compensation in accordance
with the Act and the regulations and procedures thereunder prescribed by
the Department.
(c) Based period means the base period as defined by the applicable
State law for the benefit year.
(d) Benefit year means the benefit year as defined by the applicable
State law, and if not so defined the term means the period prescribed in
the agreement with the State or, in the absence of an Agreement, the
period prescribed by the Department.
(e) Federal agency means any department, agency, or governmental
body of the United States, including any instrumentality wholly or
partially owned by the United States, in any branch of the Government of
the United States, which employs any individual in Federal civilian
service.
(f) Federal civilian service means service performed in the employ
of any Federal agency, except service performed--
(1) By an elective official in the executive or legislative branches
of the Government of the United States;
(2) As a member of the Armed Forces or the Commissioned Corps of the
National Oceanic and Atmospheric Administration;
(3) By Foreign Service personnel for whom special separation
allowances are provided under chapter 14 of title 22 of the United
States Code;
(4) Outside the 50 States, the Commonwealth of Puerto Rico, the
Virgin Islands, and the District of Columbia, by an individual who is
not a citizen of the United States;
(5) By an individual excluded by regulations of the Office of
Personnel Management from civil service retirement coverage provided by
subchapter III of chapter 83 of title 5 of the United States Code
because the individual is paid on a contract or fee basis;
(6) By an individual receiving nominal pay and allowances of $12 or
less a year;
(7) In a hospital, home, or other institution of the United States
by a patient or inmate thereof;
(8) By a student-employee as defined by 5 U.S.C. 5351; that is: (i)
A student nurse, medical or dental intern, resident-in-training, student
dietitian, student physical therapist, or student occupational
therapist, assigned or attached to a hospital, clinic, or medical or
dental laboratory operated by an agency as defined in section 5351; or
(ii) Any other student-employee, assigned or attached primarily for
training purposes to such a hospital, clinic, or medical or dental
laboratory operated by such an agency, who is designated by the head of
the agency with the approval of the Office of Personnel Management;
(9) By an individual serving on a temporary basis in case of fire,
storm, earthquake, flood, or other similar emergency;
(10) By an individual employed under a Federal relief program to
relieve the individual from unemployment;
(11) As a member of a State, county, or community committee under
the Agricultural Stabilization and Conservation Service or of any other
board, council, committee, or other similar body, unless such body is
composed exclusively of individuals otherwise in the full-time employ of
the United States;
(12) By an officer or member of the crew on or in connection with an
American vessel which is:
(i) Owned by or bareboat chartered to the United States, and
(ii) The business of which is conducted by a general agent of the
Secretary of Commerce; and
(iii) If contributions on account of such service are required under
section 3305(g) of the Internal Revenue Code of 1986 (26 U.S.C. 3305(g))
to be made to an unemployment fund under a State law;
(13) By an individual excluded by any other Federal law from
coverage under the UCFE Program; or
(14) By an individual whose service is covered by the UCX Program to
which part 614 of this chapter applies.
(g) Federal employee means an individual who has performed Federal
civilian service.
[[Page 50]]
(h) Federal findings means the facts reported by a Federal agency
pertaining to an individual as to: (1) Whether or not the individual has
performed Federal civilian service for such an agency;
(2) The period or periods of such Federal civilian service;
(3) The individual's Federal wages; and
(4) The reasons for termination of the individual's Federal civilian
service.
(i) Federal wages means all pay and allowances, in cash and in kind,
for Federal civilian service.
(j) First claim means an initial claim for unemployment compensation
under the UCFE Program, the UCX Program (part 614 of this chapter), a
State law, or some combination thereof, whereby a benefit year is
established under an applicable State law.
(k) Official station means the State (or country, if outside the
United States) designated on a Federal employee's notification of
personnel action terminating the individual's Federal civilian service
(Standard Form 50 or its equivalent) as the individual's ``duty
station.'' If the form of notification does not specify the Federal
employee's ``duty station'', the individual's official station shall be
the State or country designated under ``name and location of employing
office'' on such form or designated as the individual's place of
employment on an equivalent form.
(l) Secretary means the Secretary of Labor of the United States.
(m) State means the 50 States, the District of Columbia, the
Commonwealth of Puerto Rico, and the Virgin Islands.
(n) State agency means the agency of the State which administers the
applicable State law and is administering the UCFE Program in the State
pursuant to an Agreement with the Secretary.
(o)(1) State law means the unemployment compensation law of a State
approved by the Secretary under section 3304 of the Internal Revenue
Code of 1986, 26 U.S.C. 3304, if the State is certified under section
3304(c) of the Internal Revenue Code of 1986, 26 U.S.C. 3304(c).
(2) Applicable State law means the State law made applicable to a
UCFE claimant by Sec. 609.8.
(p)(1) Unemployment compensation means cash benefits (including
dependents' allowances) payable to individuals with respect to their
unemployment, and includes regular, additional, emergency, and extended
compensation.
(2) Regular compensation means unemployment compensation payable to
an individual under any State law, but not including additional
compensation or extended compensation.
(3) Additional compensation means unemployment compensation totally
financed by a State and payable under a State law by reason of
conditions of high unemployment or by reason of other special factors.
(4) Emergency compensation means supplementary unemployment
compensation payable under a temporary Federal law after exhaustion of
regular and extended compensation.
(5) Extended compensation means unemployment compensation payable to
an individual for weeks of unemployment in an extended benefit period,
under those provisions of a State law which satisfy the requirements of
the Federal-State Extended Unemployment Compensation Act of 1970, as
amended, 26 U.S.C. 3304 note, and part 615 of this chapter, with respect
to the payment of extended compensation.
(q) Week means, for purposes of eligibility for and payment of UCFE,
a week as defined in the applicable State law.
(r) Week of unemployment means a week of total, part-total, or
partial unemployment as defined in the applicable State law, which shall
be applied in the same manner and to the same extent to all employment
and earnings, and in the same manner and to the same extent for the
purposes of the UCFE Program, as if the individual filing for UCFE were
filing a claim for State unemployment compensation.
[47 FR 54687, Dec. 3, 1982, as amended at 71 FR 35514, June 21, 2006]
[[Page 51]]
Subpart B_Administration of UCFE Program
Sec. 609.3 Eligibility requirements for UCFE.
An individual shall be eligible to receive a payment of UCFE or to
waiting period credit with respect to a week of unemployment if:
(a) The individual has Federal civilian service and Federal wages in
the base period under the applicable State law;
(b) The individual meets the qualifying employment and wage
requirements of the applicable State law, either on the basis of Federal
civilian service and Federal wages alone or in combination with service
and wages covered under a State law or under the UCX Program (part 614
of this chapter);
(c) The individual has filed an initial claim for UCFE and, as
appropriate, has filed a timely claim for waiting period credit or a
payment of UCFE with respect to that week of unemployment; and
(d) The individual is totally, part-totally, or partially
unemployed, and is able to work, available for work, and seeking work
within the meaning of or as required by the applicable State law, and is
not subject to disqualification under this part or the applicable State
law, with respect to that week of unemployment.
Sec. 609.4 Weekly and maximum benefit amounts.
(a) Total unemployment. The weekly amount of UCFE payable to an
eligible individual for a week of total unemployment shall be the amount
that would be payable to the individual as unemployment compensation for
a week of total unemployment as determined under the applicable State
law.
(b) Partial and part-total unemployment. The weekly amount of UCFE
payable for a week of partial or part-total unemployment shall be the
amount that would be payable to the individual as unemployment
compensation for a week of partial or part-total unemployment as
determined under the applicable State law.
(c) Maximum amount. The maximum amount of UCFE which shall be
payable to an eligible individual during and subsequent to the
individual's benefit year shall be the maximum amount of all
unemployment compensation that would be payable to the individual as
determined under the applicable State law.
(d) Computation rules. (1) The weekly and maximum amounts of UCFE
payable to an individual under the UCFE Program shall be determined
under the applicable State law to be in the same amount, on the same
terms, and subject to the same conditions as the State unemployment
compensation which would be payable to the individual under the
applicable State law if the individual's Federal civilian service and
Federal wages assigned or transferred under this part to the State had
been included as employment and wages covered by that State law.
(2) All Federal civilian service and Federal wages for all Federal
agencies shall be considered employment with a single employer for
purposes of the UCFE Program.
Sec. 609.5 Claims for UCFE.
(a) First claims. A first claim for UCFE shall be filed by an
individual in any State agency of any State (or Canada) according to the
applicable State law, and on a form prescribed by the Department which
shall be furnished to the individual by the State agency where the claim
is filed.
(b) Weekly claims. Claims for waiting week credit and payments of
UCFE for weeks of unemployment shall be filed in any State agency (or
Canada) at the times and in the manner as claims for State unemployment
compensation are filed under the applicable State law, and on forms
prescribed by the Department which shall be furnished to the individual
by the State agency where the claim is filed.
(c) Secretary's standard. The procedure for reporting and filing
claims for UCFE and waiting period credit shall be consistent with this
part 609 and the Secretary's ``Standard for Claim Filing, Claimant
Reporting, Job Finding and Employment Services'' (Employment Security
Manual, part V, sections 5000 et seq.).
[[Page 52]]
Sec. 609.6 Determinations of entitlement; notices to individual.
(a) Determination of first claim. The State agency whose State law
applies to an individual under Sec. 609.8 shall, promptly upon the
filing of a first claim for UCFE, determine whether the individual is
eligible and whether a disqualification applies, and, if the individual
is found to be eligible, the individual's benefit year and the weekly
and maximum amounts of UCFE payable to the individual.
(b) Determinations of weekly claims. The State agency promptly
shall, upon the filing of a claim for payment of UCFE or waiting period
credit with respect to a week, determine whether the individual is
entitled to a payment of UCFE or waiting period credit with respect to
such week, and, if entitled, the amount of UCFE or waiting period credit
to which the individual is entitled.
(c) Redetermination. The provisions of the applicable State law
concerning the right to request, or authority to undertake,
reconsideration of a determination pertaining to State unemployment
compensation under the applicable State law shall apply to
determinations pertaining to UCFE.
(d) Notices to individual. The State agency promptly shall give
notice in writing to the individual of any determination or
redetermination of a first claim, and, except as may be authorized under
paragraph (g) of this section, of any determination or redetermination
of any weekly claim which denies UCFE or waiting period credit or
reduces the weekly amount or maximum amount initially determined to be
payable. Each notice of determination or redetermination shall include
such information regarding the determination or redetermination and
notice of right to reconsideration or appeal, or both, as is furnished
with written notices of determinations and redeterminations with respect
to claims for State unemployment compensation; and where information
furnished by a Federal agency was considered in making the
determination, or redetermination, the notice thereof shall include an
explanation of the right of the individual to seek additional
information pursuant to Sec. 609.23 and/or a reconsideration of Federal
findings pursuant to Sec. 609.24.
(e) Obtaining information for claim determinations. (1) Information
required for the determination of claims for UCFE shall be obtained by
the State agency from claimants, employers, and others, in the same
manner as information is obtained for claim purposes under the
applicable State law, but information (including additional and
reconsidered Federal findings) shall be obtained from the Federal agency
that employed the UCFE claimant as prescribed in Sec. Sec. 609.21
through 609.25. On request by a UCFE claimant, the State agency shall
seek additional information pursuant to Sec. 609.23 and reconsideration
of Federal findings pursuant to Sec. 609.24.
(2) If Federal findings have not been received from a Federal agency
within 12 days after the request for information was submitted to the
Federal agency, the State agency shall determine the individual's
entitlement to UCFE on the basis of an affidavit completed by the
individual on a form prescribed by the Department. In addition, the
individual shall submit for examination by the State agency any
documents issued by the Federal agency (for example, Standard Form 50 or
W-2) verifying that the individual performed services for and received
wages from such Federal agency.
(3) If Federal findings received by a State agency after a
determination has been made under this section contain information which
would result in a change in the individual's eligibility for or
entitlement to UCFE, the State agency promptly shall make a
redetermination and notify the individual, as provided in this section.
All payments of UCFE made prior to or after such redetermination shall
be adjusted in accordance therewith.
(f) Promptness. Full payment of UCFE when due shall be consistent
with this part 609 and shall be made with the greatest promptness that
is administratively feasible, but the provisions of part 640 of this
chapter (relating to promptness of benefit payments) shall not be
applicable to the UCFE Program.
(g) Secretary's standard. The procedures for making determinations
and
[[Page 53]]
redeterminations, and furnishing written notices of determinations,
redeterminations, and rights of appeal to individuals applying for UCFE,
shall be consistent with this part 609 and with the Secretary's
``Standard for Claim Determinations--Separation Information''
(Employment Security Manual, part V, sections 6010 et seq.).
[47 FR 54687, Dec. 3, 1982, as amended at 71 FR 35514, June 21, 2006]
Sec. 609.7 Appeal and review.
(a) Applicable State law. The provisions of the applicable State law
concerning the right of appeal and fair hearing from a determination or
redetermination of entitlement to State unemployment compensation shall
apply to determinations and redeterminations of eligibility for or
entitlement to UCFE and waiting period credit. Any such determination or
redetermination shall be subject to appeal and review only in the manner
and to the extent provided in the applicable State law with respect to
determinations and redeterminations of entitlement to State unemployment
compensation.
(b) Rights of appeal and fair hearing. The provisions on right to
appeal and opportunity for a fair hearing with respect to claims for
UCFE shall be consistent with this part and with sections 303(a)(1) and
303(a)(3) of the Social Security Act, 42 U.S.C. 503(a)(1) and 503(a)(3).
(c) Promptness on appeals. (1) Decisions on appeals under the UCFE
Program shall accord with the Secretary's ``Standard for Appeals
Promptness--Unemployment Compensation'' in part 650 of this chapter, and
with Sec. 609.1(d).
(2) Any provision of an applicable State law for advancement or
priority of unemployment compensation cases on judicial calendars, or
otherwise intended to provide for the prompt payment of unemployment
compensation when due, shall apply to proceedings involving claims for
UCFE.
(d) Appeal and review by Federal agency. If a Federal agency
believes that a State agency's determination or redetermination of an
individual's eligibility for or entitlement to UCFE is incorrect, the
Federal agency may seek appeal and review of such determination or
redetermination in the same manner as an interested employer may seek
appeal and review under the applicable State law.
[47 FR 54687, Dec. 3, 1982, as amended at 71 FR 35514, June 21, 2006]
Sec. 609.8 The applicable State for an individual.
(a) The applicable State. The applicable State for an individual
shall be the State to which the individual's Federal civilian service
and Federal wages are assigned or transferred under this section. The
applicable State law for the individual shall be the State law of such
State.
(b) Assignment of service and wages. (1) An individual's Federal
civilian service and Federal wages shall be assigned to the State in
which the individual had his or her last official station prior to
filing a first claim unless:
(i) At the time a first claim is filed the individual resides in
another State in which, after separation from Federal civilian service,
the individual performed service covered under the State law, in which
case all of the individual's Federal civilian service and wages shall be
assigned to the latter State; or
(ii) Prior to filing a first claim an individual's last official
station was outside the States, in which case all of the individual's
Federal civilian service and Federal wages shall be assigned to the
State in which the individual resides at the time the individual files a
first claim, provided the individual is personally present in a State
when the individual files the first claim.
(2) Federal civilian service and wages assigned to a State in error
shall be reassigned for use by the proper State agency. An appropriate
record of a reassignment shall be made by the State agency which makes
the reassignment.
(3) Federal civilian service and Federal wages assigned to a State
shall be transferred to another State where such transfer is necessary
for the purposes of a combined-wage claim filed by an individual.
(c) Assignment deemed complete. All of an individual's Federal
civilian service and Federal wages shall be deemed to have been assigned
to a State upon the filing of a first claim. Federal civilian
[[Page 54]]
service and Federal wages shall be assigned to a State only in
accordance with paragraph (b) of this section.
(d) Use of assigned service and wages. All assigned Federal civilian
service and Federal wages shall be used only by the State to which
assigned or transferred in accordance with paragraph (b) of this
section.
Sec. 609.9 Provisions of State law applicable to UCFE claims.
(a) Particular provisions applicable. Except where the result would
be inconsistent with the provisions of the Act or this part or the
procedures thereunder prescribed by the Department, the terms and
conditions of the applicable State law which apply to claims for, and
the payment of, State unemployment compensation shall apply to claims
for, and the payment of, UCFE and claims for waiting period credit. The
provisions of the applicable State law which shall apply include, but
are not limited to:
(1) Claim filing and reporting;
(2) Information to individuals, as appropriate;
(3) Notices to individuals and Federal agencies, as appropriate,
including notice to each individual of each determination and
redetermination of eligibility for or entitlement to UCFE;
(4) Determinations and redeterminations;
(5) Ability to work, availability for work, and search for work; and
(6) Disqualifications.
(b) IBPP. The Interstate Benefit Payment Plan shall apply, where
appropriate, to individuals filing claims for UCFE.
(c) Wage combining. The State's provisions complying with the
Interstate Arrangement for Combining Employment and Wages (part 616 of
this chapter) shall apply, where appropriate, to individuals filing
claims for UCFE.
(d) Procedural requirements. The provisions of the applicable State
law which apply hereunder to claims for and the payment of UCFE shall be
applied consistently with the requirements of title III of the Social
Security Act and the Federal Unemployment Tax Act which are pertinent in
the case of State unemployment compensation, including but not limited
to those standards and requirements specifically referred to in the
provisions of this part, except as provided in paragraph (f) of Sec.
609.6.
Sec. 609.10 Restrictions on entitlement.
(a) Disqualification. If the week of unemployment for which an
individual claims UCFE is a week to which a disqualification for State
unemployment compensation applies under the applicable State law, or
would apply but for the fact that the individual has no right to such
compensation, the individual shall not be entitled to a payment of UCFE
for that week.
(b) Allocation of terminal annual leave payments. Lump-sum terminal
annual leave payments shall not be allocated by a Federal agency and
shall be allocated by a State agency in the same manner as similar
payments to individuals employed by private employers are allocated
under the applicable State law. In a State in which a private employer
has an option as to the period to which such payments shall be
allocated, such payments shall be allocated to the date of separation
from employment.
Sec. 609.11 Overpayments; penalties for fraud.
(a) False statements and representations. Section 8507(a) of the Act
provides that if a State agency, the Department, or a court of competent
jurisdiction finds that an individual--
(1) Knowingly has made, or caused to be made by another, a false
statement or representation of a material fact, or knowingly has failed,
or caused another to fail, to disclose a material fact; and
(2) As a result of that action has received an amount as UCFE to
which the individual was not entitled; the individual shall repay the
amount to the State agency or the Department. Instead of requiring
repayments, the State agency or the Department may recover the amount by
deductions from UCFE payable to the individual during the 2-year period
after the date of the finding. A finding by a State agency or the
Department may be made only after an opportunity for a fair hearing,
subject to such further review as may be appropriate under Sec. 609.7.
[[Page 55]]
(b) Prosecution for fraud. Section 1919 of title 18, United States
Code, provides that whoever makes a false statement or representation of
a material fact knowing it to be false, or knowingly fails to disclose a
material fact, to obtain or increase for himself or for any other
individual any payment authorized to be paid under chapter 85 of title
5, United States Code, or under an agreement thereunder, shall be fined
not more than $1,000 or imprisoned not more than one year, or both.
(c) Absence of fraud. If a State agency or court of competent
jurisdiction finds that an individual has received a payment of UCFE to
which the individual was not entitled under the Act and this part, which
was not due to a false statement or representation as provided in
paragraph (a) or (b) of this section, the individual shall be liable to
repay to the applicable State the total sum of the payment to which the
individual was not entitled, and the State agency shall take all
reasonable measures authorized under any State law or Federal law to
recover for the account of the United States the total sum of the
payment to which the individual was not entitled.
(d) Recovery by offset. (1) The State agency shall recover, insofar
as is possible, the amount of any overpayment which is not repaid by the
individual, by deductions from any UCFE payable to the individual under
the Act and this part, or from any unemployment compensation payable to
the individual under any Federal unemployment compensation law
administered by the State agency, or from any assistance or allowance
payable to the individual with respect to unemployment under any other
Federal law administered by the State agency.
(2) A State agency shall also recover, insofar as is possible, the
amount of any overpayment of UCFE made to the individual by another
State, by deductions from any UCFE payable by the State agency to the
individual under the Act and this part, or from any unemployment
compensation payable to the individual under any Federal unemployment
compensation law administered by the State agency, or from any
assistance or allowance payable to the individual with respect to
unemployment under any other Federal law administered by the State
agency.
(3) Recoupment of fraudulent overpayments referred to in paragraph
(a) of this section shall be limited to the 2-year period stated in that
paragraph. Recoupment of fraudulent overpayments referred to in
paragraph (b) of this section, and nonfraudulent overpayments referred
to in paragraph (c) of this section shall be subject to any time
limitation on recoupment provided for in the State law that applies to
the case.
(e) Debts due the United States. UCFE payable to an individual shall
be applied by the State agency for the recovery by offset of any debt
due to the United States from the individual, but shall not be applied
or used by the State agency in any manner for the payment of any debt of
the individual to any State or any other entity or person except
pursuant to a court order for child support or alimony in accordance
with the law of the State and section 459 of the Social Security Act, 42
U.S.C. 659.
(f) Application of State law. (1) Except as indicated in paragraph
(a) of this section, any provision of State law that may be applied for
the recovery of overpayments or prosecution for fraud, and any provision
of State law authorizing waiver of recovery of overpayments of
unemployment compensation, shall be applicable to UCFE.
(2) In the case of any finding of false statement or representation
under the Act and paragraph (a) of this section, or prosecution for
fraud under 18 U.S.C. 1919 or pursuant to paragraph (f)(1) of this
section, the individual shall be disqualified or penalized in accordance
with the provisions of the applicable State law relating to fraud in
connection with a claim for State unemployment compensation.
(g) Final decision. Recovery of any overpayment of UCFE shall not be
enforced by the State agency until the determination or redetermination
establishing the overpayment has become final, or if appeal is taken
from the determination or redetermination, until the decision after
opportunity for a fair hearing has become final.
(h) Procedural requirements. (1) The provisions of paragraphs (c),
(d), and (g)
[[Page 56]]
of Sec. 609.6 shall apply to determinations and redeterminations made
pursuant to this section.
(2) The provisions of Sec. 609.7 shall apply to determinations and
redeterminations made pursuant to this section.
(i) Fraud detection and prevention. Provisions in the procedures of
each State with respect to detection and prevention of fraudulent
overpayments of UCFE shall be, as a minimum, commensurate with the
procedures adopted by the State with respect to State unemployment
compensation and consistent with the Secretary's ``Standard for Fraud
and Overpayment Detection'' (Employment Security Manual, part V, section
7510 et seq.).
(j) Recovered overpayments. An amount repaid or recouped under this
section shall be--
(1) Deposited in the fund from which payment was made, if the
repayment was to a State agency; or
(2) Returned to the Treasury of the United States and credited to
the current applicable appropriation, fund, or account from which
payment was made, if the repayment was to the Department.
Sec. 609.12 Inviolate rights to UCFE.
Except as specifically provided in this part, the rights of
individuals to UCFE shall be protected in the same manner and to the
same extent as the rights of persons to State unemployment compensation
are protected under the applicable State law. Such measures shall
include protection of applicants for UCFE from waiver, release,
assignment, pledge, encumbrance, levy, execution, attachment, and
garnishment of their rights to UCFE, except as provided in Sec. 609.11.
In the same manner and to the same extent, individuals shall be
protected from discrimination and obstruction in regard to seeking,
applying for, and receiving any right to UCFE.
Sec. 609.13 Recordkeeping; disclosure of information.
(a) Recordkeeping. Each State agency will make and maintain records
pertaining to the administration of the UCFE Program as the Department
requires, and will make all such records available for inspection,
examination, and audit by such Federal officials or employees as the
Department may designate or as may be required by law.
(b) Disclosure of Information. Information in records maintained by
a State agency in administering the UCFE Program shall be kept
confidential, and information in such records may be disclosed only in
the same manner and to the same extent as information with respect to
State unemployment compensation and the entitlement of individuals
thereto may be disclosed under the applicable State law. This provision
on the confidentiality of information maintained in the administration
of the UCFE Program shall not apply, however, to the Department or for
the purposes of Sec. Sec. 609.11 or 609.13, or in the case of
information, reports and studies required pursuant to Sec. Sec. 609.17
or 609.25, or where the result would be inconsistent with the Freedom of
Information Act (5 U.S.C. 552), the Privacy Act of 1974, as amended (5
U.S.C. 552a), or regulations of the Department promulgated thereunder.
[47 FR 54687, Dec. 3, 1982, as amended at 71 FR 35514, June 21, 2006]
Sec. 609.14 Payments to States.
(a) State entitlement. Each State is entitled to be paid by the
United States with respect to each individual whose base period wages
included Federal wages, an amount bearing the same ratio to the total
amount of compensation paid to such individual as the amount of the
individual's Federal wages in the individual's base period bears to the
total amount of the individual's base period wages.
(b) Payment. Each State shall be paid, either in advance or by way
of reimbursement, as may be determined by the Department, the sum that
the Department estimates the State is entitled to receive under the Act
and this part for each calendar month. The sum shall be reduced or
increased by the amount which the Department finds that its estimate for
an earlier calendar month was greater or less than the sum which should
have been paid to the State. An estimate may be made on the basis of a
statistical, sampling, or other method agreed on by the Department and
the State agency.
[[Page 57]]
(c) Certification by the Department. The Department, from time to
time, shall certify to the Secretary of the Treasury the sum payable to
each State under this section. The Secretary of the Treasury, before
audit or settlement by the General Accounting Office, shall pay the
State in accordance with the certification from the funds for carrying
out the purposes of the Act and this part.
(d) Use of money. Money paid a State under the Act and this part may
be used solely for the purposes for which it is paid. Money so paid
which is not used solely for these purposes shall be returned, at the
time specified by the Agreement, to the Treasury of the United States
and credited to the current applicable appropriation, fund, or account
from which payments to states under the Act and this part may be made.
Sec. 609.15 Public access to Agreements.
The State agency of a State will make available to any individual or
organization a true copy of the Agreement with the State for inspection
and copying. Copies of an Agreement may be furnished on request to any
individual or organization upon payment of the same charges, if any, as
apply to the furnishing of copies of other records of the State agency.
Sec. 609.16 Administration in absence of an Agreement.
(a) Administering Program. The Department shall administer the UCFE
Program through personnel of the Department or through other
arrangements under procedures prescribed by the Department, in the case
of any State which does not have an Agreement with the Secretary as
provided for in 5 U.S.C. 8502. The procedures prescribed by the
Department under this section shall be consistent with the Act and this
part.
(b) Applicable State law. On the filing by an individual of a claim
for UCFE in accordance with arrangements under this section, UCFE shall
be paid to the individual, if eligible, in the same amount, on the same
terms, and subject to the same conditions as would be paid to the
individual under the applicable State law if the individual's Federal
civilian service and Federal wages had been included as employment and
wages under the State law. Any such claim shall include the individual's
Federal civilian service and Federal wages, combined with any service
and wages covered by State law. However, if the individual, without
regard to his or her Federal civilian service and Federal wages, has
employment or wages sufficient to qualify for compensation during the
benefit year under that State law, then payments of UCFE under this
section may be made only on the basis of the individual's Federal
civilian service and Federal wages.
(c) Fair hearing. An individual whose claim for UCFE is denied under
this section is entitled to a fair hearing under rules of procedure
prescribed by the Department. A final determination by the Department
with respect to entitlement to UCFE under this section is subject to
review by the courts in the same manner and to the same extent as is
provided by section 205(g) of the Social Security Act, 42 U.S.C. 405(g).
Sec. 609.17 Information, reports, and studies.
State agencies shall furnish to the Department such information and
reports and conduct such studies as the Department determines are
necessary or appropriate for carrying out the purposes of the UCFE
Program.
Subpart C_Responsibilities of Federal Agencies
Sec. 609.20 Information to Federal civilian employees.
Each Federal agency shall:
(a) Furnish information to its employees as to their rights and
responsibilities under the UCFE Program and 18 U.S.C. 1919; and
(b) Furnish a completed copy of a form approved by the Department,
``Notice to Federal Employee About Unemployment Compensation,'' in
accordance with instructions thereon, to each employee at the time of
separation from Federal civilian service, when transferred from one
payroll office to another, or when the office responsible for
distribution of the form is advised that an individual is in nonpay
[[Page 58]]
status for seven consecutive days or more.
Sec. 609.21 Findings of Federal agency.
(a) Answering request. Within four workdays after receipt from a
State agency of a request for Federal findings on a form furnished by
the State agency, and prescribed by the Department, a Federal agency
shall make such Federal findings, complete all copies of the form, and
transmit the completed copies to the State agency. If documents
necessary for completion of the form have been assigned to an agency
records center or the Federal Records Center in St. Louis, the Federal
agency shall obtain the necessary information from the records center.
Any records center shall give priority to such a request.
(b) Failure to meet time limit. If a completed form containing the
Federal agency's findings cannot be returned within four workdays of
receipt, the Federal agency immediately shall inform the State agency,
and shall include an estimated date by which the completed form will be
returned.
(c) Administrative control. Each Federal agency shall maintain a
control of all requests for Federal findings received by it, and the
Federal agency's response to each request. The records shall be
maintained so as to enable the Federal agency to ascertain at any time
the number of such forms that have not been returned to State agencies,
and the dates of the Federal agency's receipt of such unreturned forms.
Sec. 609.22 Correcting Federal findings.
If a Federal agency ascertains at any time within one year after it
has returned a completed form reporting its findings, that any of its
findings were erroneous, it shall promptly correct its error and forward
its corrected findings to the State agency.
Sec. 609.23 Furnishing additional information.
On receipt of a request for additional information from a State
agency, a Federal agency shall consider the information it supplied
initially in connection with such request and shall review its findings.
The Federal agency promptly shall forward to the State agency such
additional findings as will respond to the request. The Federal agency
shall, if possible, respond within four workdays after the receipt of a
request under this section.
Sec. 609.24 Reconsideration of Federal findings.
On receipt of a request for reconsideration of Federal findings from
a State agency, the Federal agency shall consider the initial
information supplied in connection with such request and shall review
its findings. The Federal agency shall correct any errors or omissions
in its findings and shall affirm, modify, or reverse any or all of its
findings in writing. The Federal agency promptly shall forward its
reconsidered findings to the requesting authority. The Federal agency
shall, if possible, respond within four workdays after the receipt of a
request under this section.
Sec. 609.25 Furnishing other information.
(a) Additional Information. In addition to the information required
by Sec. Sec. 609.21, 609.22, 609.23, and 609.24, a Federal agency shall
furnish to a State agency or the Department, within the time requested,
any information which it is not otherwise prohibited from releasing by
law, which the Department determines is necessary for the administration
of the UCFE Program.
(b) Reports. Federal agencies shall furnish to the Department or
State agencies such reports containing such information as the
Department determines are necessary or appropriate for carrying out the
purposes of the UCFE Program.
Sec. 609.26 Liaison with Department.
To facilitate the Department's administration of the UCFE Program,
each Federal agency shall designate one or more of its officials to be
the liaison with the Department. Each Federal agency will inform the
Department of its designation(s) and of any change in a designation.
[[Page 59]]
PART 614_UNEMPLOYMENT COMPENSATION FOR EX-SERVICEMEMBERS
Subpart A_General Provisions
Sec.
614.1 Purpose and application.
614.2 Definitions of terms.
Subpart B_Administration of UCX Program
614.3 Eligibility requirements for UCX.
614.4 Weekly and maximum benefit amounts.
614.5 Claims for UCX.
614.6 Determinations of entitlement; notices to individual and Federal
military agency.
614.7 Appeal and review.
614.8 The applicable State for an individual.
614.9 Provisions of State law applicable to UCX claims.
614.10 Restrictions on entitlement.
614.11 Overpayments; penalties for fraud.
614.12 Schedules of remuneration.
614.13 Inviolate rights to UCX.
614.14 Recordkeeping; disclosure of information.
614.15 Payments to States.
614.16 Public access to Agreements.
614.17 Administration in absence of an Agreement.
614.18 Information, reports, and studies.
Subpart C_Responsibilities of Federal Military Agencies and State
Agencies
614.20 Information to ex-servicemembers.
614.21 Findings of Federal military agency.
614.22 Correcting Federal findings.
614.23 Finality of findings.
614.24 Furnishing other information.
614.25 Liaison with Department
Appendix A to Part 614--Standard for Claim Filing, Claimant Reporting,
Job Finding, and Employment Services
Appendix B to Part 614--Standard for Claim Determination--Separation
Information
Appendix C to Part 614--Standard for Fraud and Overpayment Detection
Authority: 5 U.S.C. 8508; Secretary's Order No. 4-75 (40 FR 18515).
Source: 47 FR 54697, Dec. 3, 1982, unless otherwise noted.
Subpart A_General Provisions
Sec. 614.1 Purpose and application.
(a) Purpose. Subchapter II of chapter 85, title 5 of the United
States Code (5 U.S.C. 8521-8525) provides for a permanent program of
unemployment compensation for unemployed individuals separated from the
Armed Forces. The unemployment compensation provided for in subchapter
II is hereinafter referred to as Unemployment Compensation for Ex-
servicemembers, or UCX. The regulations in this part are issued to
implement the UCX Program.
(b) First rule of construction. The Act and the implementing
regulations in this part shall be construed liberally so as to carry out
the purposes of the Act.
(c) Second rule of construction. The Act and the implementing
regulations in this part shall be construed so as to assure insofar as
possible the uniform interpretation and application of the Act
throughout the United States.
(d) Effectuating purpose and rules of construction. (1) In order to
effectuate the provisions of this section, each State agency shall
forward to the United States Department of Labor (hereafter Department),
not later than 10 days after issuance, a copy of each judicial or
administrative decision ruling on an individual's entitlement to payment
of UCX or to credit for a waiting period. On request of the Department,
a State agency shall forward to the Department a copy of any
determination or redetermination ruling on an individual's entitlement
to UCX or waiting period credit.
(2)(i) If the Department believes that a determination,
redetermination, or decision is inconsistent with the Department's
interpretation of the Act or this part, the Department may at any time
notify the State agency of the Department's view. Thereafter, the State
agency shall issue a redetermination or appeal if possible, and shall
not follow such determination, redetermination, or decision as a
precedent; and, in any subsequent proceedings which involve such
determination, redetermination, or decision, or wherein such
determination, redetermination, or decision is cited as precedent or
otherwise relied upon, the State agency shall inform the claims deputy
or hearing officer or court of the Department's view and shall make all
reasonable efforts, including appeal or other proceedings in an
appropriate forum, to obtain modification, limitation, or overruling of
the determination, redetermination, or decision.
[[Page 60]]
(ii) If the Department believes that a State agency has failed to
use, or use in a timely manner, the crossmatch mechanism at the claims
control center designated by the Department, the Department may at any
time notify the State of the Department's view. Thereafter, the State
agency shall take action to ensure that operable procedures for the
effective utilization of the claims control center are in place and
adhered to. In any case of any determination, redetermination, or
decision that is not legally warranted under the Act or this part had
the State used, or used in a timely manner, the crossmatch mechanism at
the claims control center designated by the Department, State agency
shall take the steps outlined in paragraph (d)(2)(i) of this section.
(3) If the Department believes that a determination,
redetermination, or decision is patently and flagrantly violative of the
Act or this part, the Department may at any time notify the State agency
of the Department's view. If the determination, redetermination, or
decision in question denies UCX to a claimant, the steps outlined in
paragraph (2) above shall be followed by the State agency. If the
determination, redetermination, or decision in question awards UCX to a
claimant, the benefits are ``due'' within the meaning of section
303(a)(1) of the Social Security Act, 42 U.S.C. 503(a)(1), and therefore
must be paid promptly to the claimant. However, the State agency shall
take the steps outlined in paragraph (d)(2) of this section, and
payments to the claimant may be temporarily delayed if redetermination
or appeal action is taken not more than one business day following the
day on which the first payment otherwise would be issued to the
claimant; and the redetermination action is taken or appeal is filed to
obtain a reversal of the award of UCX and a ruling consistent with the
Department's view; and the redetermination action or appeal seeks an
expedited redetermination or appeal within not more than two weeks after
the redetermination action is taken or the appeal is filed. If
redetermination action is not taken or appeal is not filed within the
above time limit, or a redetermination or decision is not obtained
within the two-week limit, or any redetermination or decision or order
is issued which affirms the determination, redetermination, or decision
awarding UCX or allows it to stand in whole or in part, the benefits
awarded must be paid promptly to the claimant.
(4)(i) If any determination, redetermination, or decision, referred
to in paragraph (d)(2) or paragraph (d)(3) of this section, is treated
as a precedent for any future UCX claim or claim under the UCFE Program
(part 609 of this chapter), the Secretary will decide whether the
Agreement with the State entered into under the Act shall be terminated.
(ii) In the case of any determination, redetermination, or decision
that is not legally warranted under the Act or this part, including any
determination, redetermination, or decision referred to in paragraph
(d)(2) or in paragraph (d)(3) of this section, the Secretary will decide
whether the State shall be required to restore the funds of the United
States for any sums paid under such a determination, redetermination, or
decision, and whether, in absence of such restoration, the Agreement
with the State shall be terminated and whether other action shall be
taken to recover such sums for the United States.
(5) A State agency may request reconsideration of a notice issued
pursuant to paragraph (d)(2) or paragraph (d)(3) of this section, and
shall be given an opportunity to present views and arguments if desired.
(6) Concurrence of the Department in a determination,
redetermination, or decision shall not be presumed from the absence of a
notice issued pursuant to this section.
(Approved by the Office of Management and Budget under control number
1205-0163)
[47 FR 54697, Dec. 3, 1982, as amended at 53 FR 40553, Oct. 17, 1988; 53
FR 43799, Oct. 26, 1988; 57 FR 59799, Dec. 15, 1992]
Sec. 614.2 Definitions of terms.
For purposes of the Act and this part:
(a) Act means subchapter II of chapter 85 of title 5 of the United
States Code, 5 U.S.C. 8521-8525.
(b) Agreement means the Agreement entered into pursuant to 5 U.S.C.
8502 between a State and the Secretary
[[Page 61]]
under which the State agency of the State agrees to make payments of
unemployment compensation in accordance with the Act and the regulations
and procedures thereunder prescribed by the Department.
(c) Base period means the base period as defined by the applicable
State law for the benefit year.
(d) Benefit year means the benefit year as defined by the applicable
State law, and if not so defined the term means the period prescribed in
the Agreement with the State or, in the absence of an Agreement, the
period prescribed by the Department.
(e) Ex-servicemember means an individual who has performed Federal
military service.
(f) Federal military agency means any of the Armed Forces of the
United States, including the Army, Air Force, Navy, Marine Corps, and
Coast Guard, and the National Oceanic and Atmospheric Administration
(Department of Commerce).
(g) Federal military service means active service (not including
active duty in a reserve status unless for a continuous period of 90
days or more) in the Armed Forces or the Commissioned Corps of the
National Oceanic and Atmospheric Administration if with respect to that
service--
(1) The individual was discharged or released under honorable
conditions (and, if an officer, did not resign for the good of the
service); and
(2)(i) The individual was discharged or released after completing
his/her first full term of active service which the individual initially
agreed to serve, or
(ii) The individual was discharged or released before completing
such term of active service--
(A) For the convenience of the Government under an early release
program,
(B) Because of medical disqualification, pregnancy, parenthood, or
any service-incurred injury or disability,
(C) Because of hardship, or
(D) Because of personality disorders or inaptitude but only if the
service was continuous for 365 days or more.
(h) Federal military wages means all pay and allowances in cash and
in kind for Federal military service, computed on the basis of the pay
and allowances for the pay grade of the individual at the time of his or
her latest discharge or release from Federal/military service, as
determined in accordance with the Schedule of Remuneration applicable at
the time the individual files his or her first claim for compensation
for a benefit year.
(i) First claim means an initial claim for unemployment compensation
under the UCX Program, the UCFE Program (part 609 of this chapter), or a
State law, or some combination thereof, first filed by an individual
after the individual's latest discharge or release from Federal military
service, whereby a benefit year is established under an applicable State
law.
(j) Military document means an official document or documents issued
to an individual by a Federal military agency relating to the
individual's Federal military service and discharge or release from such
service.
(k) Period of active service means a period of continuous active
duty (including active duty for training purposes) in a Federal military
agency or agencies, beginning with the date of entry upon active duty
and ending on the effective date of the first discharge or release
thereafter which is not qualified or conditional.
(l) Schedule of Remuneration means the schedule issued by the
Department from time to time under 5 U.S.C. 8521(a)(2) and this part,
which specifies for purposes of the UCX Program, the pay and allowances
for each pay grade of servicemember.
(m) Secretary means the Secretary of Labor of the United States.
(n) State means the 50 States, the District of Columbia, the
Commonwealth of Puerto Rico, and the Virgin Islands.
(o) State agency means the agency of the State which administers the
applicable State unemployment compensation law and is administering the
UCX Program in the State pursuant to an Agreement with the Secretary.
(p)(1) State law means the unemployment compensation law of a State
approved by the Secretary under section 3304 of the Internal Revenue
Code of
[[Page 62]]
1986, 26 U.S.C. 3304, if the State is certified under section 3304(c) of
the Internal Revenue Code of 1986, 26 U.S.C. 3304(c).
(2) Applicable State law means the State law made applicable to a
UCX claimant by Sec. 614.8.
(q)(1) Unemployment compensation means cash benefits (including
dependents' allowances) payable to individuals with respect to their
unemployment, and includes regular, additional, emergency, and extended
compensation.
(2) Regular compensation means unemployment compensation payable to
an individual under any State law, but not including additional
compensation or extended compensation.
(3) Additional compensation means unemployment compensation totally
financed by a State and payable under a State law by reason of
conditions of high unemployment or by reason of other special factors.
(4) Emergency compensation means supplementary unemployment
compensation payable under a temporary Federal law after exhaustion of
regular and extended compensation.
(5) Extended compensation means unemployment compensation payable to
an individual for weeks of unemployment in an extended benefit period,
under those provisions of a State law which satisfy the requirements of
the Federal-State Extended Unemployment Compensation Act of 1970, as
amended, 26 U.S.C. 3304 note, and part 615 of this chapter, with respect
to the payment of extended compensation.
(r) Unemployment Compensation for Ex-Servicemember means the
unemployment compensation payable under the Act to claimants eligible
for the payments, and is referred to as UCX.
(s) Week means, for purposes of eligibility for and payment of UCX,
a week as defined in the applicable State law.
(t) Week of unemployment means a week of total, part-total, or
partial unemployment as defined in the applicable State law, which shall
be applied in the same manner and to the same extent to all employment
and earnings, and in the same manner and to the same extent for the
purposes of the UCX Program, as if the individual filing for UCX were
filing a claim for State unemployment compensation.
[47 FR 54697, Dec. 3, 1982, as amended at 53 FR 40554, Oct. 17, 1988; 53
FR 43799, Oct. 26, 1988; 57 FR 59799, Dec. 15, 1992]
Subpart B_Administration of UCX Program
Sec. 614.3 Eligibility requirements for UCX.
An individual shall be eligible to receive a payment of UCX or
waiting period credit with respect to a week of unemployment if:
(a) The individual has Federal military service and Federal military
wages in the base period under the applicable State law;
(b) The individual meets the qualifying employment and wage
requirements of the applicable State law, either on the basis of Federal
military service and Federal military wages alone or in combination with
service and wages covered under a State law or under the UCFE Program
(part 609 of this chapter);
(c) The individual has filed an initial claim for UCX and, as
appropriate, has filed a timely claim for waiting period credit or
payment of UCX with respect to that week of unemployment; and
(d) The individual is totally, part-totally, or partially
unemployed, and is able to work, available for work, and seeking work
within the meaning of or as required by the applicable State law, and is
not subject to disqualification under this part or the applicable State
law, with respect to that week of unemployment.
[47 FR 54697, Dec. 3, 1982, as amended at 53 FR 40554, Oct. 17, 1988; 57
FR 59799, Dec. 15, 1992]
Sec. 614.4 Weekly and maximum benefit amounts.
(a) Total unemployment. The weekly amount of UCX payable to an
eligible individual for a week of total unemployment shall be the amount
that would be payable to the individual as unemployment compensation for
a week of total unemployment as determined under the applicable State
law.
[[Page 63]]
(b) Partial and part-total unemployment. The weekly amount of UCX
payable for a week of partial or part-total unemployment shall be the
amount that would be payable to the individual as unemployment
compensation for a week of partial or part-total unemployment as
determined under the applicable State law.
(c) Maximum amount. The maximum amount of UCX which shall be payable
to an eligible individual during and subsequent to the individual's
benefit year shall be the maximum amount of all unemployment
compensation that would be payable to the individual as determined under
the applicable State law.
(d) Computation rules. The weekly and maximum amounts of UCX payable
to an individual under the UCX Program shall be determined under the
applicable State law to be in the same amount, on the same terms, and
subject to the same conditions as the State unemployment compensation
which would be payable to the individual under the applicable State law
if the individual's Federal military service and Federal military wages
assigned or transferred under this part to the State had been included
as employment and wages covered by that State law, subject to the use of
the applicable Schedule of Remuneration.
[47 FR 54697, Dec. 3, 1982, as amended at 53 FR 40554, Oct. 17, 1988; 57
FR 59800, Dec. 15, 1992]
Sec. 614.5 Claims for UCX.
(a) First claims. A first claim for UCX shall be filed by an
individual in any State agency of any State according to the applicable
State law, and on a form prescribed by the Department which shall be
furnished to the individual by the State agency where the claim is
filed.
(b) Weekly claims. Claims for waiting week credit and payments of
UCX for weeks of unemployment shall be filed in any State agency (or
Canada) at the times and in the manner as claims for State unemployment
compensation are filed under the applicable State law, and on forms
prescribed by the Department which shall be furnished to the individual
by the State agency where the claim is filed.
(c) Secretary's standard. The procedures for reporting and filing
claims for UCX and waiting period credit shall be consistent with this
part 614 and the Secretary's ``Standard for Claim Filing, Claimant
Reporting, Job Finding and Employment Services'' in the Employment
Security Manual, part V, sections 5000-5004 (appendix A of this part).
[47 FR 54697, Dec. 3, 1982, as amended at 53 FR 40554, Oct. 17, 1988]
Sec. 614.6 Determinations of entitlement; notices to individual and
Federal military agency.
(a) Determinations of first claim. Except for findings of a Federal
military agency and the applicable Schedule of Remuneration which are
final and conclusive under Sec. 614.23, the State agency whose State
law applies to an individual under Sec. 614.8 shall, promptly upon the
filing of a first claim for UCX, determine whether the individual is
otherwise eligible, and, if the individual is found to be eligible, the
individual's benefit year and the weekly and maximum amounts of UCX
payable to the individual.
(b) Determinations of weekly claims. The State agency promptly
shall, upon the filing of a claim for a payment of UCX or waiting period
credit with respect to a week, determine whether the individual is
entitled to a payment of UCX or waiting period credit respect to such
week, and, if entitled, the amount of UCX or waiting period credit to
which the individual is entitled.
(c) Redetermination. The provisions of the applicable State law
concerning the right to request, or authority to undertake,
reconsideration of a determination pertaining to State unemployment
compensation under the applicable State law shall apply to
determinations pertaining to UCX.
(d) Notices to individual and Federal military agency. (1) The State
agency promptly shall give notice in writing to the individual of any
determination or redetermination of a first claim, and, except as may be
authorized under paragraph (g) of this section, of any determination or
redetermination of any weekly claim which denies UCX or waiting period
credit or reduces the weekly amount or maximum amount
[[Page 64]]
initially determined to be payable. Each notice of determination or
redetermination shall include such information regarding the
determination or redetermination and notice of right to reconsideration
or appeal, or both, as is furnished with written notices of
determinations and redeterminations with respect to claims for State
unemployment compensation. Such notice shall include the findings of any
Federal military agency utilized in making the determination or
redetermination, and shall inform the individual of the finality of
Federal findings and the individual's right to request correction of
such findings as is provided in Sec. 614.22.
(2) A notice of claim filing and subsequent notices of monetary and
nonmonetary determinations on a UCX claim shall be sent to each Federal
military agency for which the individual performed Federal military
service during the appropriate base period, together with notice of
appeal rights of the Federal military agency to the same extent that
chargeable employers are given such notices under State law and practice
unless an alternate mechanism is established by the Department of Labor
in lieu of such notices.
(e) Obtaining information for claim determinations. (1) Information
required for the determination of claims for UCX shall be obtained by
the State agency from claimants, employers, and others, in the same
manner as information is obtained for claim purposes under the
applicable State law, but Federal military findings shall be obtained
from military documents, the applicable Schedule of Remuneration, and
from Federal military agencies as prescribed in Sec. Sec. 614.21
through 614.24.
(f) Promptness. Full payment of UCX when due shall be consistent
with this part and shall be made with the greatest promptness that is
administratively feasible, but the provisions of part 640 of this
chapter (relating to promptness of benefit payments) shall not be
applicable to the UCX Program.
(g) Secretary's standard. The procedures for making determinations
and redeterminations, and furnishing written notices of determinations,
redeterminations, and rights of appeal to individuals applying for UCX
and to appropriate Federal military agencies shall be consistent with
this part 614 and the Secretary's ``Standard for Claim Determinations-
Separation Information'' in the Employment Security Manual, part V,
sections 6010-6015 (Appendix B of this part).
[47 FR 54697, Dec. 3, 1982, as amended at 53 FR 40554, Oct. 17, 1988; 71
FR 35514, June 21, 2006]
Sec. 614.7 Appeal and review.
(a) Applicable State Law. The provisions of the applicable State law
concerning the right of appeal and fair hearing from a determination or
redetermination of entitlement to State unemployment compensation
(exclusive of findings which are final and conclusive under Sec.
614.25) shall apply to determinations and redeterminations of
eligibility for or entitlement to UCX and waiting period credit. Any
such determination or redetermination shall be subject to appeal and
review only in the manner and to the extent provided in the applicable
State law with respect to determinations and redeterminations of
entitlement to State unemployment compensation.
(Section 614.24 governs appeals of findings of the Veterans
Administration)
(b) Rights of appeal and fair hearing. The provisions on right of
appeal and opportunity for a fair hearing with respect to claims for UCX
shall be consistent with this part and with sections 303(a)(1) and
303(a)(3) of the Social Security Act, 42 U.S.C. 503(a)(1) and 503(a)(3).
(c) Promptness on appeals. (1) Decisions on appeals under the UCX
Program shall accord with the Secretary's ``Standard for Appeals
Promptness--Unemployment Compensation'' in part 650 of this chapter, and
with Sec. 614.1(d).
(2) Any provision of an applicable State law for advancement or
priority of unemployment compensation cases on judicial calendars, or
otherwise intended to provide for the prompt payment of unemployment
compensation when due, shall apply to proceedings involving claims for
UCX.
[[Page 65]]
(d) Appeal and review by Federal military agency. If a Federal
military agency believes that a State agency's determination or
redetermination of an individual's eligibility for or entitlement to UCX
is incorrect, the Federal military agency may seek appeal and review of
such determination or redetermination in the same manner as an
interested employer may seek appeal and review under the applicable
State law.
Sec. 614.8 The applicable State for an individual.
(a) The applicable State. The applicable State for an individual
shall be the State to which the individual's Federal military service
and Federal military wages are assigned or transferred under this
section. The applicable State law for the individual shall be the State
law of such State.
(b) Assignment of service and wages. (1) When an individual files a
first claim, all of the individual's Federal military service and
Federal military wages shall be deemed to be assigned to the State in
which such claim is filed, which shall be the ``Paying State'' in the
case of a combined-wage claim. (Sec. 616.6(e) of this chapter.)
(2) Federal military service and Federal military wages assigned to
a State in error shall be reassigned for use by the proper State agency.
An appropriate record of the reassignment shall be made by the State
agency which makes the reassignment.
(c) Assignment deemed complete. All of an individual's Federal
military service and Federal military wages shall be deemed to have been
assigned to a State upon the filing of a first claim. Federal military
service and Federal military wages shall be assigned to a State only in
accordance with paragraph (b) of this section.
(d) Use of assigned service and wages. All assigned Federal military
service and Federal military wages shall be used only by the State to
which assigned in accordance with paragraph (b) of this section, except
that any Federal military service and Federal military wages which are
not within the base period of the State to which they were assigned
shall be subject to transfer in accordance with part 616 of this chapter
for the purposes of any subsequent Combined-Wage Claim filed by the
individual.
Sec. 614.9 Provisions of State law applicable to UCX claims.
(a) Particular provisions applicable. Except where the result would
be inconsistent with the provisions of the Act or this part or the
procedures thereunder prescribed by the Department, the terms and
conditions of the applicable State law which apply to claims for, and
the payment of, State unemployment compensation shall apply to claims
for, and the payment of, UCX and claims for waiting period credit. The
provisions of the applicable State law which shall apply include, but
are not limited to:
(1) Claim filing and reporting;
(2) Information to individuals, as appropriate;
(3) Notices to individuals, as appropriate, including notice to each
individual of each determination and redetermination of eligibility for
or entitlement to UCX;
(4) Determinations and redeterminations;
(5) Ability to work, availability for work, and search for work; and
(6) Disqualifications, except in regard to separation from any
Federal military agency.
(b) IBPP. The Interstate Benefit Payment Plan shall apply, where
appropriate, to individuals filing claims for UCX.
(c) Wage combining. The State's provisions complying with the
Interstate Arrangement for Combining Employment and Wages (part 616 of
this chapter) shall apply, where appropriate, to individuals filing
claims for UCX.
(d) Procedural requirements. The provisions of the applicable State
law which apply hereunder to claims for and the payment of UCX shall be
applied consistently with the requirements of title III of the Social
Security Act and the Federal Unemployment Tax Act which are pertinent in
the case of State unemployment compensation, including but not limited
to those standards and requirements specifically referred to in the
provisions of this part, except as provided in paragraph (f) of Sec.
614.6.
[[Page 66]]
Sec. 614.10 Restrictions on entitlement.
(a) Disqualification. If the week of unemployment for which an
individual claims UCX is a week to which a disqualification for State
unemployment compensation applies under the applicable State law, the
individual shall not be entitled to a payment of UCX for that week. As
provided in Sec. 614.9(a), no disqualification shall apply in regard to
separation from any Federal military agency.
(b) Effect of ``days lost''. The continuity of a period of an
individual's Federal military service shall not be deemed to be
interrupted by reason of any ``days lost'' in such period, but ``days
lost'' shall not be counted for purposes of determining:
(1) Whether an individual has performed Federal military service;
(2) Whether an individual meets the wage and employment requirements
of a State law; or
(3) The amount of an individual's Federal military wages.
(c) Allocation of military accrued leave. A State agency shall
allocate the number of days of unused military leave specified in an ex-
servicemember's military document, for which a lump-sum payment has been
made, in the same manner as similar payments by private employers to
their employees are allocated under the applicable State law, except
that the applicable Schedule of Remuneration instead of the lump-sum
payment shall be used to determine the amount of the claimant's Federal
military wages. In a State in which a private employer has an option as
to the period to which such payments shall be allocated, such payments
shall be allocated to the date of the individual's latest discharge or
release from Federal military service. An allocation under this
paragraph shall be disregarded in determining whether an individual has
had a period of active service constituting Federal military service.
(d) Education and training allowances. An individual is not entitled
to UCX under the Act or this part for a period with respect to which the
individual receives:
(1) A subsistence allowance for vocational rehabilitation training
under chapter 31 of title 38 of the United States Code, 38 U.S.C. 1501
et seq., or under part VIII of Veterans Regulation Numbered 1(a); or
(2) An educational assistance allowance or special training
allowance under chapter 35 of title 38 of the United States Code, 38
U.S.C. 1700 et seq.
Sec. 614.11 Overpayments; penalties for fraud.
(a) False statements and representations. Section 8507(a) of the Act
provides that if a State agency, the Department, or a court of competent
jurisdiction finds that an individual--
(1) Knowingly has made, or caused to be made by another, a false
statement or representation of a material fact, or knowingly has failed,
or caused another to fail, to disclose a material fact; and
(2) As a result of that action has received an amount as UCX to
which the individual was not entitled; the individual shall repay the
amount to the State agency or the Department. Instead of requiring
repayment, the State agency or the Department may recover the amount by
deductions from UCX payable to the individual during the 2-year period
after the date of the finding. A finding by a State agency or the
Department may be made only after an opportunity for a fair hearing,
subject to such further review as may be appropriate under Sec. 614.7.
(b) Prosecution for fraud. Section 1919 of title 18, United States
Code, provides that whoever makes a false statement or representation of
a material fact knowing it to be false, or knowingly fails to disclose a
material fact, to obtain or increase for himself or for any other
individual any payment authorized to be paid under chapter 85 of title
5, United States Code, or under an agreement thereunder, shall be fined
not more than $1,000 or imprisoned not more than one year, or both.
(c) Absence of fraud. If a State agency or court of competent
jurisdiction finds that an individual has received a payment of UCX to
which the individual was not entitled under the Act and this part, which
was not due to a false statement or representation as provided in
paragraph (a) or (b) of this section, the individual shall be liable to
[[Page 67]]
repay to the applicable State the total sum of the payment to which the
individual was not entitled, and the State agency shall take all
reasonable measures authorized under any State law or Federal law to
recover for the account of the United States the total sum of the
payment to which the individual was not entitled.
(d) Recovery by offset. (1) The State agency shall recover, insofar
as is possible, the amount of any overpayment which is not repaid by the
individual, by deductions from any UCX payable to the individual under
the Act and this part, or from any unemployment compensation payable to
the individual under any Federal unemployment compensation law
administered by the State agency, or from any assistance or allowance
payable to the individual with respect to unemployment under any other
Federal law administered by the State agency.
(2) A State agency shall also recover, insofar as is possible, the
amount of any overpayment of UCX made to the individual by another State
by deductions from any UCX payable by the State agency to the individual
under the Act and this part, or from any unemployment compensation
payable to the individual under any Federal unemployment compensation
law administered by the State agency, or from any assistance or
allowance payable to the individual with respect to unemployment under
any other Federal law administered by the State agency.
(3) Recoupment of fraudulent overpayments referred to in paragraph
(a) of this section shall be limited to the 2-year period stated in that
paragraph. Recoupment of fraudulent overpayments referred to in
paragraph (b) of this section, and nonfraudulent overpayments referred
to in paragraph (c) of this section shall be subject to any time
limitation on recoupment provided for in the State law that applies to
the case.
(e) Debts due the United States. UCX payable to an individual shall
be applied by the State agency for the recovery by offset of any debt
due to the United States from the individual, but shall not be applied
or used by the State agency in any manner for the payment of any debt of
the individual to any State or any other entity or person except
pursuant to a court order for child support or alimony in accordance
with the law of the State and section 459 of the Social Security Act, 42
U.S.C. 659.
(f) Application of State law. (1) Except as indicated in paragraph
(a) of this section, any provision of State law that may be applied for
the recovery of overpayments or prosecution for fraud, and any provision
of State law authorizing waiver of recovery of overpayments of
unemployment compensation, shall be applicable to UCX.
(2) In the case of any finding of false statement of representation
under the Act and paragraph (a) of this section, or prosecution for
fraud under 18 U.S.C. 1919 or pursuant to paragraph (f)(1) of this
section, the individual shall be disqualified or penalized in accordance
with the provision of the applicable State law relating to fraud in
connection with a claim for State unemployment compensation.
(g) Final decision. Recovery of any overpayment of UCX shall not be
enforced by the State agency until the determination or redetermination
establishing the overpayment has become final, or if appeal is taken
from the determination or redetermination, until the decision after
opportunity for a fair hearing has become final.
(h) Procedural requirements. (1) The provisions of paragraphs (c),
(d), and (g) of Sec. 614.6 shall apply to determinations and
redeterminations made pursuant to this section.
(2) The provisions of Sec. 614.7 shall apply to determinations and
redeterminations made pursuant to this section.
(i) Fraud detection and prevention. Provisions in the procedures of
each State with respect to detection and prevention of fraudulent
overpayments of UCX shall be, as a minimum, commensurate with the
procedures adopted by the State with respect to State unemployment
compensation and consistent with this part 614 and the Secretary's
``Standard for Fraud and Overpayment Detection'' in the Employment
Security Manual, part V, sections 7510-7515 (Appendix C of this part),
and provide for timely use of any crossmatch
[[Page 68]]
mechanism established by the Department.
(j) Recovered overpayments. An amount repaid or recouped under this
section shall be--
(1) Deposited in the fund from which payment was made, if the
repayment was to a State agency; or
(2) Returned to the Treasury of the United States and credited to
the current applicable appropriation, fund, or account from which
payment was made, if the repayment was to the Department.
[47 FR 54697, Dec. 3, 1982, as amended at 53 FR 40555, Oct. 17, 1988]
Sec. 614.12 Schedules of remuneration.
(a) Authority. Section 8521(a)(2) of chapter 85, title 5 of the
United States Code, 5 U.S.C. 8521(a)(2), requires the Secretary of Labor
to issue from time to time, after consultation with the Secretary of
Defense, a Schedule of Remuneration specifying the pay and allowances
for each pay grade of members of the Armed Forces.
(b) Elements of schedule. A schedule reflects representative amounts
for appropriate elements of the pay and allowances, whether in cash or
kind, for each pay grade of members of the Armed Forces, with a
statement of the effective date of the schedule. Benefit amounts for the
UCX Program are computed on the basis of the Federal military wages for
the pay grade of the individual at the time of the individual's latest
discharge or release from Federal military service, as specified in the
schedule applicable at the time the individual files his or her first
claim for compensation for the benefit year.
(c) Effective date. Any new Schedule of Remuneration shall take
effect beginning with the first week of the calendar quarter following
the calendar quarter in which such schedule is issued, and shall remain
applicable until a subsequent schedule becomes effective. Prior
schedules shall continue to remain applicable for the periods they were
in effect.
(d) Publication. Any new Schedule of Remuneration shall be issued by
the Secretary of Labor to the State agencies and the Federal military
agencies. Promptly after the issuance of a new Schedule of Remuneration
it shall be published as a notice in the Federal Register.
Sec. 614.13 Inviolate rights to UCX.
Except as specifically provided in this part, the rights of
individuals to UCX shall be protected in the same manner and to the same
extent as the rights of persons to State unemployment compensation are
protected under the applicable State law. Such measures shall include
protection of applicants for UCX from waiver, release, assignment,
pledge, encumbrance, levy, execution, attachment, and garnishment of
their rights to UCX, except as provided in Sec. 614.11. In the same
manner and to the same extent, individuals shall be protected from
discrimination and obstruction in regard to seeking, applying for, and
receiving any right to UCX.
Sec. 614.14 Recordkeeping; disclosure of information.
(a) Recordkeeping. Each State agency will make and maintain records
pertaining to the administration of the UCX Program as the Department
requires, and will make all such records available for inspection,
examination, and audit by such Federal officials or employees as the
Department may designate or as may be required by law.
(b) Disclosure of information. Information in records maintained by
a State agency in administering the UCX Program shall be kept
confidential, and information in such records may be disclosed only in
the same manner and to the same extent as information with respect to
State unemployment compensation and the entitlement of individuals
thereto may be disclosed under the applicable State law. This provision
on the confidentiality of information maintained in the administration
of the UCX Program shall not apply, however, to the Department or for
the purposes of Sec. Sec. 614.11 or 614.14, or in the case of
information, reports and studies required pursuant to Sec. Sec. 614.18
or 614.26, or where the result would be inconsistent with the Freedom of
Information Act, 5 U.S.C. 552, the Privacy Act of 1974, 5 U.S.C. 552a,
or regulations of the Department promulgated thereunder.
[[Page 69]]
Sec. 614.15 Payments to States.
(a) State entitlement. Each State is entitled to be paid by the
United States with respect to each individual whose base period wages
included Federal military wages, an amount bearing the same ratio to the
total amount of compensation paid to such individual as the amount of
the individual's Federal military wages in the individual's base period
bears to the total amount of the individual's base period wages.
(b) Payment. Each State shall be paid, either in advance or by way
of reimbursement, as may be determined by the Department, the sum that
the Department estimates the State is entitled to receive under the Act
and this part for each calendar month. The sum shall be reduced or
increased by the amount which the Department finds that its estimate for
an earlier calendar month was greater or less than the sum which should
have been paid to the State. An estimate may be made on the basis of a
statistical, sampling, or other method agreed on by the Department and
the State agency.
(c) Certification by the Department. The Department, from time to
time, shall certify to the Secretary of the Treasury the sum payable to
each State under this section. The Secretary of the Treasury, before
audit or settlement by the General Accounting Office, shall pay the
State in accordance with the certification from the funds for carrying
out the purposes of the Act and this part.
(d) Use of money. Money paid a State under the Act and this part may
be used solely for the purposes for which it is paid. Money so paid
which is not used solely for these purposes shall be returned, at the
time specified by the Agreement, to the Treasury of the United States
and credited to the current applicable appropriation, fund, or account
from which payments to States under the Act and this part may be made.
Sec. 614.16 Public access to Agreements.
The State agency of a State will make available to any individual or
organization a true copy of the Agreement with the State for inspection
and copying. Copies of an Agreement may be furnished on request to any
individual or organization upon payment of the same charges, if any, as
apply to the furnishing of copies of other records of the State agency.
Sec. 614.17 Administration in absence of an Agreement.
(a) Administering program. The Department shall administer the UCX
Program through personnel of the Department or through other
arrangements under procedures prescribed by the Department, in the case
of any State which does not have an Agreement with the Secretary as
provided for in 5 U.S.C. 8502. The procedures prescribed by the
Department under this section shall be consistent with the Act and this
part.
(b) Applicable State law. On the filing by an individual of a claim
for UCX in accordance with arrangements under this section, UCX shall be
paid to the individual, if eligible, in the same amount, on the same
terms, and subject to the same conditions as would be paid to the
individual under the applicable State law if the individual's Federal
military service and Federal military wages had been included as
employment and wages under the State law. Any such claims shall include
the individual's Federal military service and Federal military wages,
combined with any service and wages covered by State law. However, if
the individual, without regard to his or her Federal military service
and Federal military wages, has employment or wages sufficient to
qualify for compensation during the benefit year under that State law,
then payments of UCX under this section may be made only on the basis of
the individual's Federal military service and Federal military wages.
(c) Fair hearing. An individual whose claim for UCX is denied under
this section is entitled to a fair hearing under rules of procedures
prescribed by the Department. A final determination by the Department
with respect to entitlement to UCX under this section is subject to
review by the courts in the same manner and to the same extent as is
provided by section 205(g) of the Social Security Act, 42 U.S.C. 405(g).
[[Page 70]]
Sec. 614.18 Information, reports, and studies.
State agencies shall furnish to the Department such information and
reports and conduct such studies as the Department determines are
necessary or appropriate for carrying out the purposes of the UCX
Program.
Subpart C_Responsibilities of Federal Military Agencies and State
Agencies
Sec. 614.20 Information to ex-servicemembers.
At the time of discharge or release from Federal military service,
each Federal military agency shall furnish to each ex-servicemember
information explaining rights and responsibilities under the UCX Program
and 18 U.S.C. 1919, and military documents necessary for filing claims
for UCX.
Sec. 614.21 Findings of Federal military agency.
(a) Findings in military documents. Information contained in a
military document furnished to an ex-servicemember shall constitute
findings to which Sec. 614.23 applies as to:
(1) Whether the individual has performed active service in the Armed
Forces or the Commissioned Corps of the National Oceanic and Atmospheric
Administration;
(2) The beginning and ending dates of the period of active service
and ``days lost'' during such period;
(3) The type of discharge or release terminating the period of
active service;
(4) The individuals' pay grade at the time of discharge or release
from active service; and
(5) The narrative reason or other reason for separation from active
service.
(b) Discharges not under honorable conditions. A military document
which shows that an individual's discharge or release was under other
than honorable conditions shall also be a finding to which Sec. 614.23
applies.
[53 FR 40555, Oct. 17, 1988]
Sec. 614.22 Correcting Federal findings.
(a) Request for correction. (1) If an individual believes that a
finding specified in Sec. 614.21 is incorrect or that information as to
any finding has been omitted from a military document, the individual
may request the issuing Federal military agency to correct the military
document. A request for correction may be made through the State agency,
which shall forward such request and any supporting information
submitted by the individual to the Federal military agency.
(2) The Federal military agency shall promptly forward to the
individual or State agency making the request the corrected military
document. Information contained in a corrected military document issued
pursuant to such a request shall constitute the findings of the Federal
military agency under Sec. 614.21.
(3) If a determination or redetermination based on a finding as to
which correction is sought has been issued by a State agency before a
request for correction under this paragraph is made, the individual who
requested such correction shall file a request for redetermination or
appeal from such determination or redetermination with the State agency,
and shall inform the State agency of the request for correction.
(4) An individual who files a request for correction of findings
under this paragraph shall promptly notify the State agency of the
action of the Federal military agency on such request.
(b) State agency procedure when request made. (1) If a determination
of entitlement has not been made when an individual notifies a State
agency of a request for correction under paragraph (a) of this section,
the State agency may postpone such determination until the individual
has notified the State agency of the action of the Federal military
agency on the request.
(2) If a determination of entitlement has been made when an
individual notifies a State agency that a request for correction of
Federal findings has been made, or if an individual notifies a State
agency prior to a determination of entitlement that a request has been
made but such determination is not postponed by the State agency, the
individual may file a request for redetermination or appeal in
accordance with the applicable State law.
[[Page 71]]
(3) Except as provided in paragraph (c) of this section, no
redetermination shall be made or hearing scheduled on an appeal until
the individual has notified the State agency of the action of the
Federal military agency on a request for correction under paragraph (a)
of this section.
(c) State agency procedure when request answered. On receipt of
notice of the action of a Federal military agency on a request for
correction of its findings, a State agency shall:
(1) Make a timely determination or redetermination of the
individual's entitlement, or
(2) Promptly schedule a hearing on the individual's appeal.
If such notice is not received by a State agency within one year of the
date on which an individual first filed a claim, or such notice is not
given promptly by an individual, a State agency without further
postponement may make such determination or redetermination or schedule
such hearing.
(d) Findings corrected without request. Information as to any
finding specified in Sec. 614.21 contained in a corrected military
document issued by a Federal military agency on its own motion shall
constitute the findings of such agency under Sec. 614.21, if notice
thereof is received by a State agency before the period for
redetermination or appeal has expired under the State law. On timely
receipt of such notice a State agency shall take appropriate action
under the applicable State law to give effect to the corrected findings.
Sec. 614.23 Finality of findings.
The findings of a Federal military agency referred to in Sec. Sec.
614.21 and 614.22, and the Schedules of Remuneration issued by the
Department pursuant to the Act and Sec. 614.12, shall be final and
conclusive for all purposes of the UCX Program, including appeal and
review pursuant to Sec. 614.7 or Sec. 614.17.
[53 FR 40555, Oct. 17, 1988]
Sec. 614.24 Furnishing other information.
(a) Additional information. In addition to the information required
by Sec. Sec. 614.21 and 614.22, a Federal military agency shall furnish
to a State agency or the Department, within the time requested, any
information which it is not otherwise prohibited from releasing by law,
which the Department determines is necessary for the administration of
the UCX Program.
(b) Reports. Federal military agencies shall furnish to the
Department or State agencies such reports containing such information as
the Department determines are necessary or appropriate for carrying out
the purposes of the UCX Program.
[47 FR 54697, Dec. 3, 1982, as amended at 53 FR 40555, Oct. 17, 1988]
Sec. 614.25 Liaison with Department
To facilitate the Department's administration of the UCX program,
each Federal military agency shall designate one or more of its
officials to be the liaison with the Department. Each Federal military
agency will inform the Department of its designation(s) and of any
change in a designation.
[53 FR 40555, Oct. 17, 1988]
Appendix A to Part 614--Standard for Claim Filing, Claimant Reporting,
Job Finding, and Employment Services
Employment Security Manual (Part V, Sections 5000-5004) *
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* Revises subgrouping 5000-5004.
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5000-5099 Claims Filing
5000 Standards for Claim Filing, Claimant Reporting, Job Finding, and
Employment Services
A. Federal law requirements. Section 3304(a)(1) of the Federal
Unemployment Tax Act and section 303(a)(2) of the Social Security Act
require that a State law provide for:
``Payment of unemployment compensation solely through public
employment offices or such other agencies as the Secretary may
approve.''
Section 3304(a)(4) of the Federal Unemployment Tax Act and section
303(a)(5) of the Social Security Act require that a State law provide
for:
``Expenditure of all money withdrawn from an unemployment fund of
such State, in the payment of unemployment compensation. * * *''
Section 303(a)(1) of the Social Security Act requires that the State
law provide for:
``Such methods of administration * * * as are found by the Secretary
to be reasonably calculated to insure full payment of unemployment
compensation when due.''
[[Page 72]]
B. Secretary's interpretation of Federal law requirements.
1. The Secretary interprets section 3304(a)(1) of the Federal
Unemployment Tax Act and section 303(a)(2) of the Social Security Act to
require that a State law provide for payment of unemployment
compensation solely through public employment offices or claims offices
administered by the State employment security agency if such agency
provides for such coordination in the operations of its public
employment offices and claims offices as will insure: (a) The payment of
benefits only to individuals who are unemployed and who are able to work
and available for work, and (b) that individuals claiming unemployment
compensation (claimants) are afforded such placement and other
employment services as are necessary and appropriate to return them to
suitable work as soon as possible.
2. The Secretary interprets all the above sections to require that a
State law provide for:
a. Such contact by claimants with public employment offices or
claims offices or both, (1) as will reasonably insure the payment of
unemployment compensation only to individuals who are unemployed and who
are able to work and available for work, and (2) that claimants are
afforded such placement and other employment services as are necessary
and appropriate to facilitate their return to suitable work as soon as
possible; and
b. Methods of administration which do not unreasonably limit the
opportunity of individuals to establish their right to unemployment
compensation due under such State law.
5001 Claim Filing and Claimant Reporting Requirements Designed to
Satisfy Secretary's Interpretation
A. Claim filing--total or part-total unemployment.
1. Individuals claiming unemployment compensation for total or part-
total unemployment are required to file a claim weekly or biweekly, in
person or by mail, at a public employment office or a claims office
(these terms include offices at itinerant points) as set forth below.
2. Except as provided in paragraph 3, a claimant is required to file
in person:
a. His new claim with respect to a benefit year, or his continued
claim for a waiting week or for his first compensable week of
unemployment in such year; and
b. Any other claim, when requested to do so by the claims personnel
at the office at which he files his claim(s) because questions about his
right to benefits are raised by circumstances such as the following:
(1) The conditions or circumstances of his separation from
employment;
(2) The claimant's answers to questions on mail claim(s) indicate
that he may be unable to work or that there may be undue restrictions on
his availability for work or that his search for work may be inadequate
or that he may be disqualified;
(3) The claimant's answers to questions on mail claims create
uncertainty about his credibility or indicate a lack of understanding of
the applicable requirement; or
(4) The claimant's record shows that he has previously filed a
fraudulent claim.
In such circumstances, the claimant is required to continue to file
claims in person each week (or biweekly) until the State agency
determines that filing claims in person is no longer required for the
resolution of such questions.
3. A claimant must be permitted to file a claim by mail in any of
the following circumstances:
a. He is located in an area requiring the expenditure of an
unreasonable amount of time or money in traveling to the nearest
facility established by the State agency for filing claims in person;
b. Conditions make it impracticable for the agency to take claims in
person;
c. He has returned to full-time work on or before the scheduled date
for his filing a claim, unless the agency makes provision for in-person
filing at a time and place that does not interfere with his employment;
d. The agency finds that he has good cause for failing to file a
claim in person.
4. A claimant who has been receiving benefits for partial
unemployment may continue to file claims as if he were a partially
unemployed worker for the first four consecutive weeks of total or part-
total unemployment immediately following his period of partial
unemployment so long as he remains attached to his regular employer.
B. Claim filing--partial unemployment. Each individual claiming
unemployment compensation for a week (or other claim period) during
which, because of lack of work, he is working less than his normal
customary full-time hours for his regular employer and is earning less
than the earnings limit provided in the State law, shall not be required
to file a claim for such week or other claim period earlier than 2 weeks
from the date that wages are paid for such claim period or, if a low
earnings report is required by the State law, from the date the employer
furnished such report to the individual. State agencies may permit
claims for partial unemployment to be filed either in person or by mail,
except that in the circumstances set forth in section A 3, filing by
mail must be permitted, and in the circumstances set forth in section A
2 b, filing in person may be required.
5002 Requirement for Job Finding, Placement, and other Employment
Services Designed to Satisfy Secretary's Interpretation
[[Page 73]]
A. Claims personnel are required to assure that each claimant is
doing what a reasonable individual in his circumstances would do to
obtain suitable work.
B. In the discretion of the State agency:
1. The claims personnel are required to give each claimant such
necessary and appropriate assistance as they reasonably can in finding
suitable work and at their discretion determine when more complete
placement and employment services are necessary and appropriate for a
claimant; and if they determine more complete services are necessary and
appropriate, the claims personnel are to refer him to employment service
personnel in the public employment office in which he has been filing
claim(s), or, if he has been filing in a claims office, in the public
employment office most accessible to him; or
2. All placement and employment services are required to be afforded
to each claimant by employment service personnel in the public
employment office most accessible to him, in which case the claims
personnel in the office in which the claimant files his claim are to
refer him to the employment service personnel when placement or other
employment services are necessary and appropriate for him.
C. The personnel to whom the State agency assigns the
responsibilities outlined in paragraph B above are required to give
claimants such job-finding assistance, placement, and other employment
services as are necessary and appropriate to facilitate their return to
suitable work as soon as possible.
In some circumstances, no such services or only limited services may
be required. For example, if a claimant is on a short-term temporary
layoff with a fixed return date, the only service necessary and
appropriate to be given to him during the period of the layoff is a
referral to suitable temporary work if such work is being performed in
the labor market area.
Similarly, claimants whose unemployment is caused by a labor dispute
presumably will return to work with their employer as soon as the labor
dispute is settled. They generally do not need services, nor do
individuals in occupations where placement customarily is made by other
nonfee charging placement facilities such as unions and professional
associations.
Claimants who fall within the classes which ordinarily would require
limited services or no services shall, if they request placement and
employment services, be afforded such services as are necessary and
appropriate for them to obtain suitable work or to achieve their
reasonable employment goals.
On the other hand, a claimant who is permanently separated from his
job is likely to require some services. He may need only some direction
in how to get a job; he may need placement services if he is in an
occupation for which there is some demand in the labor market area; if
his occupation is outdated, he may require counseling and referral to a
suitable training course. The extent and character of the services to be
given any particular claimant may change with the length of his
unemployment and depend not only on his own circumstances and
conditions, but also on the condition of the labor market in the area.
D. Claimants are required to report to employment service personnel,
as directed, but such personnel and the claims personnel are required to
so arrange and coordinate the contacts required of a claimant as not to
place an unreasonable burden on him or unreasonably limit his
opportunity to establish his rights to compensation. As a general rule,
a claimant is not required to contact in person claims personnel or
employment service personnel more frequently than once a week, unless he
is directed to report more frequently for a specific service such as
referral to a job or a training course or counseling which cannot be
completed in one visit.
E. Employment service personnel are required to report promptly to
claims personnel in the office in which the claimant files his claim(s):
(1) His failure to apply for or accept work to which he was referred by
such personnel or when known, by any other nonfee-charging placement
facility such as a union or a professional association; and (2) any
information which becomes available to it that may have a bearing on the
claimant's ability to work or availability for work, or on the
suitability of work to which he was referred or which was offered to
him.
5004 Evaluation of Alternative State Provisions. If the State law
provisions do not conform to the ``suggested State law requirements''
set forth in sections 5001 and 5002, but the State law contains
alternative provisions, the Manpower Administrator, in collaboration
with the State agency, will study the actual or anticipated effect of
the alternative provisions. If the Manpower Administrator concludes that
the alternative provisions satisfy the requirements of the Federal law
as construed by the Secretary (see section 5000 B) he will so notify the
State agency. If he does not so conclude, he will submit the matter to
the Secretary. If the Secretary concludes that the alternative
provisions satisfy such requirements, the State agency will be so
notified. If the Secretary concludes that there is a question as to
whether the alternative provisions satisfy such requirements, the State
agency will be advised that unless the State law provisions are
appropriately revised, a notice of hearing will be issued as required by
the Code
[[Page 74]]
of Federal Regulations, title 20, section 601.3.
[53 FR 40555, Oct. 17, 1988; 53 FR 43799, Oct. 26, 1988]
Appendix B to Part 614--Standard for Claim Determination--Separation
Information
Employment Security Manual (Part V, Sections 6010-6015)
6010-6019 Standard for Claim Determinations--Separation Information *
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* Revises subgrouping 6010-6019
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6010 Federal Law Requirements. Section 303(a)(1) of the Social Security
Act requires that a State law include provision for:
``Such methods of administration . . . as are found by the Secretary
to be reasonably calculated to insure full payment of unemployment
compensation when due.''
Section 303(a)(3) of the Social Security Act requires that a State
law include provision for:
``Opportunity for a fair hearing before an impartial tribunal, for
all individuals whose claims for unemployment compensation are denied.''
Section 3304(a)(4) of the Federal Unemployment Tax Act and section
303(a)(5) of the Social Security Act require that a State law include
provision for:
``Expenditure of all money withdrawn from an unemployment fund of
such State, in the payment of unemployment compensation * * *.
Section 3306(h) of the Federal Unemployment Tax Act defines
``compensation'' as ``cash benefits payable to individuals with respect
to their unemployment.''
6011 Secretary's Interpretation of Federal Law Requirements. The
Secretary interprets the above sections to require that a State law
include provisions which will insure that:
A. Individuals who may be entitled to unemployment compensation are
furnished such information as will reasonably afford them an opportunity
to know, establish, and protect their rights under the unemployment
compensation law of such State, and
B. The State agency obtains and records in time for the prompt
determination and review of benefit claims such information as will
reasonably insure the payment of benefits to individuals to whom
benefits are due.
6012 Criteria for Review of State Law Conformity with Federal
Requirements
In determining the conformity of a State law with the above
requirements of the Federal Unemployment Tax Act and the Social Security
Act as interpreted by the Secretary, the following criteria will be
applied:
A. Is it required that individuals who may be entitled to
unemployment compensation be furnished such information of their
potential rights to benefits, including the manner and places of filing
claims, the reasons for determinations, and their rights of appeal, as
will insure them a reasonable opportunity to know, establish, and
protect their rights under the law of the State?
B. Is the State agency required to obtain, in time for prompt
determination of rights to benefits such information as will reasonably
insure the payment of benefits to individuals to whom benefits are due?
C. Is the State agency required to keep records of the facts
considered in reaching determinations of rights to benefits?
6013 Claim Determinations Requirements Designed To Meet Department of
Labor Criteria
A. Investigation of claims. The State agency is required to obtain
promptly and prior to a determination of an individual's right to
benefits, such facts pertaining thereto as will be sufficient reasonably
to insure the payment of benefits when due.
This requirement embraces five separate elements:
1. It is the responsibility of the agency to take the initiative in
the discovery of information. This responsibility may not be passed on
the claimant or the employer. In addition to the agency's own records,
this information may be obtained from the worker, the employer, or other
sources. If the information obtained in the first instance discloses no
essential disagreement and provides a sufficient basis for a fair
determination, no further investigation is necessary. If the information
obtained from other sources differs essentially from that furnished by
the claimant, the agency, in order to meet its responsibility, is
required to inform the claimant of such information from other sources
and to afford the claimant an opportunity to furnish any further facts
he may have.
2. Evidentiary facts must be obtained as distinguished from ultimate
facts or conclusions. That a worker was discharged for misconduct is an
ultimate fact or conclusion; that he destroyed a machine upon which he
was working is a primary or evidentiary fact, and the sort of fact that
the requirement refers to.
3. The information obtained must be sufficient reasonably to insure
the payment of benefits when due. In general, the investigation made by
the agency must be complete enough to provide information upon which the
agency may act with reasonable assurance that its decision is consistent
with the unemployment compensation law. On the other hand, the
investigation should not be so exhaustive and time-consuming as unduly
to delay the payment of benefits and to result in excessive costs.
[[Page 75]]
4. Information must be obtained promptly so that the payment of
benefits is not unduly delayed.
5. If the State agency requires any particular evidence from the
worker, it must give him a reasonable opportunity to obtain such
evidence.
B. Recording of facts. The agency must keep a written record of the
facts considered in reaching its determinations.
C. Determination notices
1. The agency must give each claimant a written notice of:
a. Any monetary determination with respect to his benefit year;
b. Any determination with respect to purging a disqualification if,
under the State law, a condition or qualification must be satisfied with
respect to each week of disqualification; but in lieu of giving written
notice of each determination for each week in which it is determined
that the claimant has met the requirements for purging the agency may
inform the claimant that he has purged the disqualification for a week
by notation on his applicant identification card or otherwise in
writing.
c. Any other determination which adversely affects \1\ his rights to
benefits, except that written notice of determination need not be given
with respect to:
---------------------------------------------------------------------------
\1\ A determination ``adversely affects'' claimant's right to
benefits if it: (1) Results in a denial to him of benefits (including a
cancellation of benefits or wage credits or any reduction in whole or in
part below the weekly or maximum amount established by his monetary
determination) for any week or other period; or (2) denies credit for a
waiting week; or (3) applies any disqualification or penalty; or (4)
determines that he has not satisfied a condition of eligibility,
requalification for benefits, or purging a disqualification; or (5)
determines that an overpayment has been made or orders repayment or
recoupment of any sum paid to him; or (6) applies a previously
determined overpayment, penalty, or order for repayment or recoupment;
or (7) in any other way denies claimant a right to benefits under the
State law.
---------------------------------------------------------------------------
(1) A week in a benefit year for which the claimant's weekly benefit
amount is reduced in whole or in part by earnings if, the first time in
the benefit year that there is such a reduction, he is required to be
furnished a booklet or leaflet containing the information set forth
below in paragraph 2f(1). However, a written notice of determination is
required if: (a) There is a dispute concerning the reduction with
respect to any week (e.g., as to the amount computed as the appropriate
reduction, etc.); or (b) there is a change in the State law (or in the
application thereof) affecting the reduction; or
(2) Any week in a benefit year subsequent to the first week in such
benefit year in which benefits were denied, or reduced in whole or in
part for reasons other than earnings, if denial or reduction for such
subsequent week is based on the same reason and the same facts as for
the first week, and if written notice of determination is required to be
given to the claimant with respect to such first week, and with such
notice of determination, he is required to be given a booklet or
pamphlet containing the information set forth below in paragraphs 2f(2)
and 2h. However, a written notice of determination is required if: (a)
There is a dispute concerning the denial or reduction of benefits with
respect to such week; or (b) there is a change in the State law (or in
the application thereof) affecting the denial or reduction; or (c) there
is a change in the amount of the reduction except as to the balance
covered by the last reduction in a series of reductions.
Note: This procedure may be applied to determinations made with
respect to any subsequent weeks for the same reason and on the basis of
the same facts: (a) That claimant is unable to work, unavailable for
work, or is disqualified under the labor dispute provision; and (b)
reducing claimant's weekly benefit amount because of income other than
earnings or offset by reason of overpayment.
2. The agency must include in written notices of determinations
furnished to claimants sufficient information to enable them to
understand the determinations, the reasons therefor, and their rights to
protest, request reconsideration, or appeal.
The written notice of monetary determination must contain the
information specified in the following items (except h) unless an item
is specifically not applicable. A written notice of any other
determination must contain the information specified in as many of the
following items as are necessary to enable the claimant to understand
the determination and to inform him of his appeal rights. Information
specifically applicable to the individual claimant must be contained in
the written notice of determination. Information of general application
such as (but not limited to) the explanation of benefits for partial
unemployment, information as to deductions, seasonality factors, and
information as to the manner and place of taking an appeal, extension of
the appeal period, and where to obtain information and assistance may be
contained in a booklet or leaflet which is given the claimant with his
monetary determination.
a. Base period wages. The statement concerning base-period wages
must be in sufficient detail to show the basis of computation
[[Page 76]]
of eligibility and weekly and maximum benefit amounts. (If maximum
benefits are allowed, it may not be necessary to show details of
earnings.)
b. Employer name. The name of the employer who reported the wages is
necessary so that the worker may check the wage transcript and know
whether it is correct. If the worker is given only the employer number,
he may not be able to check the accuracy of the wage transcript.
c. Explanation of benefit formula--weekly and maximum benefit
amounts. Sufficient information must be given the worker so that he will
understand how his weekly benefit amount, including allowances for
dependents, and his maximum benefit amount were figured. If benefits are
computed by means of a table contained in the law, the table must be
furnished with the notice of determination whether benefits are granted
or denied.
The written notice of determination must show clearly the weekly
benefit amount and the maximum potential benefits to which the claimant
is entitled.
The notice to a claimant found ineligible by reason of insufficient
earnings in the base period must inform him clearly of the reason for
ineligibility. An explanation of the benefit formula contained in a
booklet or pamphlet should be given to each claimant at or prior to the
time he receives written notice of a monetary determination.
d. Benefit year. An explanation of what is meant by the benefit year
and identification of the claimant's benefit year must be included in
the notice of determinaton.
e. Information as to benefits for partial unemployment. There must
be included either in the written notice of determination or in a
booklet or pamphlet accompanying the notice an explanation of the
claimant's rights to partial benefits for any week with respect to which
he is working less than his normal customary full-time workweek because
of lack of work and for which he earns less than his weekly benefit
amount or weekly amount plus earnings, whichever is provided by the
State law. If the explanation is contained in the notice of
determination, reference to the item in the notice in which his weekly
benefit amount is entered should be made.
f. Deductions from weekly benefits.
(1) Earnings. Although written notice of determinations deducting
earnings from a claimant's weekly benefit amount is generally not
required (see paragraph 1c (1) above), where written notice of
determination is required (or given) it shall set forth the amount of
earnings, the method of computing the deduction in sufficient detail to
enable the claimant to verify the accuracy of the deduction, and his
right to protest, request redetermination, and appeal. Where a written
notice of determination is given to the claimant because there has been
a change in the State law or in the application of the law, an
explanation of the change shall be included.
Where claimant is not required to receive a written notice of
determination, he must be given a booklet or pamphlet the first time in
his benefit year that there is a deduction for earnings which shall
include the following information:
(a) The method of computing deductions for earnings in sufficient
detail to enable the claimant to verify the accuracy of the deduction;
(b) That he will not automatically be given a written notice of
determination for a week with respect to which there is a deduction for
earnings (unless there is a dispute concerning the reduction with
respect to a week or there has been a change in the State law or in the
application of the law affecting the deduction) but that he may obtain
such a written notice upon request; and
(c) A clear statement of his right to protest, request a
redetermination, and appeal from any determination deducting earnings
from his weekly benefit amount even though he does not automatically
receive a written notice of determination; and if the State law requires
written notice of determination in order to effectuate a protest,
redetermination, or appeal, he must be so advised and advised also that
he must request a written notice of determination before he takes any
such action.
(2) Other deductions.
(a) A written notice of determination is required with respect to
the first week in claimant's benefit year in which there is a reduction
from his benefits for a reason other than earnings. This notice must
describe the deduction made from claimant's weekly benefit amount, the
reason for the deduction, the method of computing it in sufficient
detail to enable him to verify the accuracy of such deduction, and his
right to protest, request redetermination, or appeal.
(b) A written notice of determination is not required for subsequent
weeks that a deduction is made for the same reason and on the basis of
the same facts, if the notice of determination pursuant to (2)(a), or a
booklet or pamphlet given him with such notice explains: (i) The several
kinds of deductions which may be made under the State law (e.g.,
retirement pensions, vacation pay, and overpayments); (ii) the method of
computing each kind of deduction in sufficient detail that claimant will
be able to verify the accuracy of deductions made from his weekly
benefit payments; (iii) any limitation on the amount of any deduction or
the time in which any deduction may be made; (iv) that he will not
automatically be given a written notice of determination for subsequent
weeks with respect to which there is a deduction for the same reason and
on the basis of the same facts, but that he may obtain a
[[Page 77]]
written notice of determination upon request; (v) his right to protest,
request redetermination, or appeal with respect to subsequent weeks for
which there is a reduction from his benefits for the same reason, and on
the basis of the same facts even though he does not automatically
receive a written notice of determination; and (vi) that if the State
law requires written notice of determination in order to effectuate a
protest, redetermination, or appeal, he must be so advised and advised
also that he must request a written notice of determination before he
takes any such action.
g. Seasonality factors. If the individual's determination is
affected by seasonality factors under the State law, an adequate
explanation must be made. General explanations of seasonality factors
which may affect determinations for subsequent weeks may be included in
a booklet or pamphlet given with his notice of monetary determination.
h. Disqualification or ineligibility. If a disqualification is
imposed, or if the claimant is declared ineligible for one or more
weeks, he must be given not only a statement of the period of
disqualification or ineligibility and the amount of wage-credit
reductions, if any, but also an explanation of the reason for the
ineligibility or disqualification. This explanation must be sufficiently
detailed so that he will understand why he is ineligible or why he has
been disqualified, and what he must do in order to requalify for
benefits or purge the disqualification. The statement must be
individualized to indicate the facts upon which the determination was
based, e.g., state, ``It is found that you left your work with Blank
Company because you were tired of working; the separation was voluntary,
and the reason does not constitute good cause,'' rather than merely the
phrase ``voluntary quit.'' Checking a box as to the reason for the
disqualification is not a sufficiently detailed explanation. However,
this statement of the reason for the disqualification need not be a
restatement of all facts considered in arriving at the determination.
i. Appeal rights. The claimant must be given information with
respect to his appeal rights.
(1) The following information shall be included in the notice of
determination:
(a) A statement that he may appeal or, if the State law requires or
permits a protest or redetermination before an appeal, that he may
protest or request a redetermination.
(b) The period within which an appeal, protest, or request for
redetermination must be filed. The number of days provided by statute
must be shown as well as either the beginning date or ending date of the
period. (It is recommended that the ending date of the appeal period be
shown, as this is the more understandable of the alternatives.)
(2) The following information must be included either in the notice
of determination or in separate informational material referred to in
the notice:
(a) The manner in which the appeal, protest, or request for
redetermination must be filed, e.g., by signed letter, written
statement, or on a prescribed form, and the place or places to which the
appeal, protest, or request for redetermination may be mailed or hand-
delivered.
(b) An explanation of any circumstances (such as nonworkdays, good
cause, etc.) which will extend the period for the appeal, protest, or
request for redetermination beyond the date stated or identified in the
notice of determination.
(c) That any further information claimant may need or desire can be
obtained together with assistance in filing his appeal, protest, or
request for redetermination from the local office.
If the information is given in separate material, the notice of
determination would adequately refer to such material if it said, for
example, ``For other information about your (appeal), (protest),
(redetermination) rights, see pages ---- to ---- of the ----------------
------------ (name of pamphlet or booklet) heretofore furnished to
you.''
6014 Separation Information Requirements Designed To Meet Department of
Labor Criteria
A. Information to agency. Where workers are separated, employers are
required to furnish the agency promptly, either upon agency request or
upon such separation, a notice describing the reasons for and the
circumstances of the separation and any additional information which
might affect a claimant's right to benefits. Where workers are working
less than full time, employers are required to furnish the agency
promptly, upon agency request, information concerning a claimant's hours
of work and his wages during the claim periods invovled, and other facts
which might affect a claimant's eligibility for benefits during such
periods.
When workers are separated and the notices are obtained on a request
basis, or when workers are working less than full time and the agency
requests information, it is essential to the prompt processing of claims
that the request be sent out promptly after the claim is filed and the
employer be given a specific period within which to return the notice,
preferably within 2 working days.
When workers are separated and notices are obtained upon separation,
it is essential that the empolyer be required to send the notice to the
agency with sufficient promptness to insure that, if a claim is filed,
it may be processed promptly. Normally, it is desirable that such a
notice be sent to the central office of the agency, since the employer
may not know in which local office the worker will file his claim. The
usual procedure is for
[[Page 78]]
the employer to give the worker a copy of the notice sent by the
employer to the agency.
B. Information to worker.
1. Information required to be given. Employees are required to give
their employers information and instructions concerning the employees'
potential rights to benefits and concerning registration for work and
filing claims for benefits.
The information furnished to employees under such a requirement need
not be elaborate; it need only be adequate to insure that the worker who
is separated or who is working less than full time knows he is
potentially eligible for benefits and is informed as to what he is to do
or where he is to go to file his claim and register for work. When he
files his claim, he can obtain more detailed information.
In States that do not require employers to furnish periodically to
the State agency detailed reports of the wages paid to their employees,
each employer is required to furnish to his employees information as to:
(a) The name under which he is registered by the State agency, (b) the
address where he maintains his payroll records, and (c) the workers'
need for this information if and when they file claims for benefits.
2. Methods for giving information. The information and instructions
required above may be given in any of the following ways:
a. Posters prominently displayed in the employer's establishment.
The State agency should supply employers with a sufficient number of
posters for distribution throughout their places of business and should
see that the posters are conspicuously displayed at all times.
b. Leaflets. Leaflets distributed either periodically or at the time
of separation or reduction of hours. The State agency should supply
employers with a sufficient number of leaflets.
c. Individual notices. Individual notices given to each employee at
the time of separation or reduction in hours.
It is recommended that the State agency's publicity program be used
to supplement the employer-information requirements. Such a program
should stress the availability and location of claim-filing offices and
the importance of visiting those offices whenever the worker is
unemployed, wishes to apply for benefits, and to seek a job.
6015 Evaluation of Alternative State Provisions with Respect to Claim
Determinations and Separation Information. If the State law provisions
do not conform to the suggested requirements set forth in sections 6013
and 6014, but the State law contains alternative provisions, the Bureau
of Employment Security, in collaboration with the State agency, will
study the actual or anticipated effects of the alternative provisions.
If the Administrator of the Bureau concludes that the alternative
provisions satisfy the criteria in section 6012, he will so notify the
State agency. If the Administrator of the Bureau does not so conclude,
he will submit the matter to the Secretary. If the Secretary concludes
that the alternative provisions satisfy the criteria in section 6012,
the State agency will be so notified. If the Secretary concludes that
there is a question as to whether the alternative provisions satisfy the
criteria, the State agency will be advised that unless the State law
provisions are appropriately revised, a notice of hearing will be issued
as required by the Code of Federal Regulations, title 20, Sec. 601.5.
[53 FR 40557, Oct. 17, 1988; 53 FR 43799, Oct. 26, 1988]
Appendix C to Part 614--Standard for Fraud and Overpayment Detection
Employment Security Manual (Part V, Sections 7510-7515)
7510-7519 Standard for Fraud and Overpayment Detection
7510 Federal Law Requirements. Section 303(a)(1) of the Social Security
Act requires that a State law include provision for:
``Such methods of administration * * * as are found by the Secretary
to be reasonably calculated to insure full payment of unemployment
compensation when due.''
Section 1603(a)(4) of the Internal Revenue Code and section
3030(a)(5) of the Social Security Act require that a State law include
provision for:
``Expenditure for all money withdrawn from an unemployment fund of
such State, in the payment of unemployment compensation * * * ''
Section 1607(h) of the Internal Revenue Code defines
``compensation'' as ``cash benefits payable to individuals with respect
to their unemployment.''
7511 The Secretary's Interpretation of Federal Law Requirements. The
Secretary of Labor interprets the above sections to require that a State
law include provision for such methods of administration as are, within
reason, calculated (1) to detect benefits paid through error by the
agency or through willful misrepresentation or error by the claimant or
others, and (2) to deter claimants from obtaining benefits through
willful misrepresentation.
7513 Criteria for Review of State Conformity With Federal Requirements.
In detemining State conformity with the above requirements of the
Internal Revenue Code and the Social Security Act, as interpreted by the
Secretary of Labor, the following criteria will be applied:
[[Page 79]]
A. Are investigations required to be made after the payment of
benefits, (or, in the case of interstate claims, are investigations made
by the agent State after the processing of claims) as to claimants'
entitlement to benefits paid to them in a sufficient proportion of cases
to test the effectiveness of the agency's procedures for the prevention
of payments which are not due? To carry out investigations, has the
agency assigned to some individual or unit, as a basic function, the
responsibility of making or functionally directing such investigations?
Explantaion: It is not feasible to prescribe the extent to which the
above activities are required; however, they should always be carried on
to such an extent that they will show whether or not error or willful
misrepresentation is increasing or decreasing, and will reveal problem
areas. The extent and nature of the above activities should be varied
according to the seriousness of the problem in the State. The
responsible individual or unit should:
1. Check paid claims for overpayment and investigate for willful
misrepresentation or, alternatively, advise and assist the operating
units in the performance of such functions, or both;
2. Perform consultative services with respect to methods and
procedures for the prevention and detection of fraud; and
3. Perform other services which are closely related to the above.
Although a State agency is expected to make a full-time assignment
of responsibility to a unit or individual to carry on the functions
described above, a small State agency might make these functions a part-
time responsibility of one individual. In connection with the detection
of overpayments, such a unit or individual might, for example:
(a) Investigate information on suspected benefit fraud received from
any agency personnel, and from sources outside the agency, including
anonymous complaints;
(b) Investigate information secured from comparisons of benefit
payments with employment records to detect cases of concurrent working
(whether in covered or noncovered work) and claiming of benefits
(including benefit payments in which the agency acted as agent for
another State).
The benefit fraud referred to herein may involve employers, agency
employees, and witnesses, as well as claimants.
Comparisons of benefit payments with employment records are commonly
made either by post-audit or by industry surveys. The so-called ``post-
audit'' is a matching of central office wage-record files against
benefit payments for the same period. ``Industry surveys'' or ``mass
audits'' are done in some States by going directly to employers for pay-
roll information to be checked against concurrent benefit lists. A plan
A. of investigation based on a sample post-audit will be considered
as partial fulfillment of the investigation program; it would need to be
supplemented by other methods capable of detecting overpayments to
persons who have moved into noncovered occupations or are claiming
interstate benefits.
B. Are adequate records maintained by which the results of
investigations may be evaluated? *
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* Revises section 7513 as issued 5/5/50.
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Explanation. To meet this criterion, the State agency will be
expected to maintain records of all its activities in the detection of
overpayments, showing whether attributable to error or willful
misrepresentation, measuring the results obtained through various
methods, and noting the remedial action taken in each case. The adequacy
and effectiveness of various methods of checking for willful
misrepresentation can be evaluated only if records are kept of the
results obtained. Internal reports on fraudulent and erroneous
overpayments are needed by State agencies for self-evaluation. Detailed
records should be maintained in order that the State agency may
determine, for example, which of several methods of checking currently
used are the most productive. Such records also will provide the basis
for drawing a clear distinction between fraud and error.
C. Does the agency take adequate action with respect to publicity
concerning willful misrepresentation and its legal consequences to deter
fraud by claimants? *
Explanation. To meet this criterion, the State agency must issue
adequate material on claimant eligibility requirements and must take
necessary action to obtain publicity on the legal consequences of
willful misrepresentation or willful nondisclosure of facts.
Public announcements on convictions and resulting penalties for
fraud are generally considered necessary as a deterrent to other
persons, and to inform the public that the agency is carrying on an
effective program to prevent fraud. This alone is not considered
adequate publicity. It is important that information be circulated which
will explain clearly and understandably the claimant's rights, and the
obligations which he must fulfill to be eligible for benefits. Leaflets
for distribution and posters placed in local offices are appropriate
media for such information.
7515 Evalauation of Alternative State Provisions with Respect to
Erroneous and Illegal Payments. If the methods of administration
provided for by the State law do not conform to the suggested methods of
meeting the requirements set forth in section 7511, but a State law does
provide for alternative methods of administration designed to accomplish
the same results, the Bureau of Employment Security, in collaboration
with the State agency, will study the actual or anticipated effect of
the alternative
[[Page 80]]
methods of administration. If the Bureau concludes that the alternative
methods satisfy the criteria in section 7513, it will so notify the
State agency. If the Bureau does not so conclude, it will submit to the
Secretary the results of the study for his determination of whether the
State's alternative methods of administration meet the criteria. \*\
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\*\ Revises section 7513 as issued 5/5/50.
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PART 615_EXTENDED BENEFITS IN THE FEDERAL-STATE UNEMPLOYMENT
COMPENSATION PROGRAM
Sec.
615.1 Purpose.
615.2 Definitions.
615.3 Effective period of the program.
615.4 Eligibility requirements for Extended Benefits.
615.5 Definition of ``exhaustee.''
615.6 Extended Benefits; weekly amount.
615.7 Extended Benefits; maximum amount.
615.8 Provisions of State law applicable to claims.
615.9 Restrictions on entitlement.
615.10 Special provisions for employers.
615.11 Extended Benefit Periods.
615.12 Determination of ``on'' and ``off'' indicators.
615.13 Announcement of the beginning and ending of Extended Benefit
Periods.
615.14 Payments to States.
615.15 Records and reports.
Authority: 26 U.S.C. 7805; 42 U.S.C. 1102; Secretary's Order No. 4-
75 (40 FR 18515).
Source: 53 FR 27937, July 25, 1988, unless otherwise noted.
Sec. 615.1 Purpose.
The regulations in this part are issued to implement the ``Federal-
State Extended Unemployment Compensation Act of 1970'' as it has been
amended, which requires, as a condition of tax offset under the Federal
Unemployment Tax Act (26 U.S.C. 3301 et seq.), that a State unemployment
compensation law provide for the payment of extended unemployment
compensation during periods of high unemployment to eligible individuals
as prescribed in the Act. The benefits provided under State law, in
accordance with the Act and this part, are hereafter referred to as
Extended Benefits, and the program is referred to as the Extended
Benefit Program.
Sec. 615.2 Definitions.
For the purposes of the Act and this part--
(a) Act means the ``Federal-State Extended Unemployment Compensation
Act of 1970'' (title II of Pub. L. 91-373; 84 Stat. 695, 708), approved
August 10, 1970, as amended from time to time, including the 1980
amendments in section 416 of Pub. L. 96-364 (94 Stat. 1208, 1310),
approved September 26, 1980, and in sections 1022 and 1024 of Pub. L.
96-499 (94 Stat. 2599, 2656, 2658) approved December 5, 1980, and the
1981 amendments in sections 2401 through 2404 and section 2505(b) of
Pub. L. 97-35 (95 Stat. 357, 874-875, 884) approved August 13, 1981, and
the 1982 amendment in section 191 of Pub. L. 97-248 (96 Stat. 324, 407)
approved September 3, 1982, and the 1983 amendment in section 522 of
Pub. L. 98-21 (97 Stat. 65, 148) approved April 20, 1983.
(b) Base period means, with respect to an individual, the base
period as determined under the applicable State law for the individual's
applicable benefit year.
(c)(1) Benefit year means, with respect to an individual, the
benefit year as defined in the applicable State law.
(2) Applicable benefit year means, with respect to an individual,
the current benefit year if, at the time an initial claim for Extended
Benefits is filed, the individual has an unexpired benefit year only in
the State in which such claim is filed, or, in any other case, the
individual's most recent benefit year. For this purpose, the most recent
benefit year for an individual who has unexpired benefit years in more
than one State when an initial claim for Extended Benefits is filed, is
the benefit year with the latest ending date or, if such benefit years
have the same ending date, the benefit year in which the latest
continued claim for regular compensation was filed. The individual's
most recent benefit year which expires in an Extended Benefit Period is
the applicable benefit year if the individual cannot establish a second
benefit year or is precluded from receiving regular compensation in a
second benefit year solely by reason of a State law provision which
meets the requirement of section 3304(a)(7) of the Internal Revenue Code
of 1986 (26 U.S.C. 3304(a)(7)).
[[Page 81]]
(d) Compensation and unemployment compensation means cash benefits
(including dependents' allowances) payable to individuals with respect
to their unemployment, and includes regular compensation, additional
compensation and extended compensation as defined in this section.
(e) Regular compensation means compensation payable to an individual
under a State law, and, when so payable, includes compensation payable
pursuant to 5 U.S.C. chapter 85, but does not include extended
compensation or additional compensation.
(f) Additional compensation means compensation totally financed by a
State and payable under a State law by reason of conditions of high
unemployment or by reason of other special factors and, when so payable,
includes compensation payable pursuant to 5 U.S.C. chapter 85.
(g) Extended compensation means the extended unemployment
compensation payable to an individual for weeks of unemployment which
begin in an Extended Benefit Period, under those provisions of a State
law which satisfy the requirements of the Act and this part with respect
to the payment of extended unemployment compensation, and, when so
payable, includes compensation payable pursuant to 5 U.S.C. chapter 85,
but does not include regular compensation or additional compensation.
Extended compensation is referred to in this part as Extended Benefits.
(h) Eligibility period means, with respect to an individual, the
period consisting of--
(1) The weeks in the individual's applicable benefit year which
begin in an Extended Benefit Period, or with respect to a single benefit
year, the weeks in the benefit year which begin in more than one
Extended Benefit Period, and
(2) If the applicable benefit year ends within an Extended Benefit
Period, any weeks thereafter which begin in such Extended Benefit
Period, but an individual may not have more than one eligibility period
with respect to any one exhaustion of regular benefits, or carry over
from one eligibility period to another any entitlement to Extended
Benefits.
(i) Sharable compensation means:
(1) Extended Benefits paid to an eligible individual under those
provisions of a State law which are consistent with the Act and this
part, and that does not exceed the smallest of the following:
(i) 50 percent of the total amount of regular compensation payable
to the individual during the applicable benefit year; or
(ii) 13 times the individual's weekly amount of Extended Benefits
payable for a week of total unemployment, as determined pursuant to
Sec. 615.6(a); or
(iii) 39 times the individual's weekly benefit amount, referred to
in (ii), reduced by the regular compensation paid (or deemed paid) to
the individual during the applicable benefit year; and
(2) Regular compensation paid to an eligible individual with respect
to weeks of unemployment in the individual's eligibility period, but
only to the extent that the sum of such compensation, plus the regular
compensation paid (or deemed paid) to the individual with respect to
prior weeks of unemployment in the applicable benefit year, exceeds 26
times and does not exceed 39 times the average weekly benefit amount
(including allowances for dependents) for weeks of total unemployment
payable to the individual under the State law in such benefit year:
Provided, that such regular compensation is paid under provisions of a
State law which are consistent with the Act and this part.
(3) Notwithstanding the preceding provisions of this paragraph,
sharable compensation shall not include any regular or extended
compensation with respect to which a State is not entitled to a payment
under section 202(a)(6) or 204 of the Act or Sec. 615.14 of this part.
(j)(1) Secretary means the Secretary of Labor of the United States.
(2) Department means the United States Department of Labor, and
shall include the Employment and Training Administration, the agency of
the United States Department of Labor headed by the Assistant Secretary
of Labor for Employment and Training to whom has been delegated the
Secretary's authority under the Act in Secretary's Order No. 4-75 (40 FR
18515) and Secretary's Order No. 14-75.
[[Page 82]]
(k)(1) State means the States of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, and the U. S. Virgin Islands.
(2) Applicable State means, with respect to an individual, the State
with respect to which the individual is an ``exhaustee'' as defined in
Sec. 615.5, and in the case of a combined wage claim for regular
compensation, the term means the ``paying State'' as defined in Sec.
616.6(e) of this chapter.
(3) State agency means the State unemployment compensation agency of
a State which administers the State law.
(l)(1) State law means the unemployment compensation law of a State,
approved by the Secretary under section 3304(a) of the Internal Revenue
Code of 1986 (26 U.S.C. 3304(a)).
(2) Applicable State law means the law of the State which is the
applicable State for an individual.
(m)(1) Week means, for purposes of eligibility for and payment of
Extended Benefits, a week as defined in the applicable State law.
(2) Week means, for purposes of computation of Extended Benefit
``on'' and ``off'' and ``no change'' indicators and insured unemployment
rates and the beginning and ending of Extended Benefit Periods, a
calendar week.
(n)(1) Week of unemployment means a week of total, part-total, or
partial unemployment as defined in the applicable State law, which shall
be applied in the same manner and to the same extent to the Extended
Benefit Program as if the individual filing a claim for Extended
Benefits were filing a claim for regular compensation, except as
provided in paragraph (n)(2) of this section.
(2) Week of unemployment in section 202(a)(3)(A) of the Act means a
week of unemployment, as defined in paragraph (n)(1) of this section,
for which the individual claims Extended Benefits or sharable regular
benefits.
(o) For the purposes of section 202(a)(3) of the Act--
(1) Employed, for the purposes of section 202(a)(3)(B)(ii) of the
Act, and employment, for the purposes of section 202(a)(4) of the Act,
means service performed in an employer-employee relationship as defined
in the State law; and that law also shall govern whether that service
must be covered by it, must consist of consecutive weeks, and must
consist of more weeks of work than are required under section
202(a)(3)(B) of the Act;
(2) Individual's capabilities, for the purposes of section
202(a)(3)(C), means work which the individual has the physical and
mental capacity to perform and which meets the minimum requirements of
section 202(a)(3)(D);
(3) Reasonably short period, for the purposes of section
202(a)(3)(C), means the number of weeks provided by the applicable State
law;
(4) Average weekly benefit amount, for the purposes of section
202(a)(3)(D)(i), means the weekly benefit amount (including dependents'
allowances payable for a week of total unemployment and before any
reduction because of earnings, pensions or other requirements)
applicable to the week in which the individual failed to take an action
which results in a disqualification as required by section 202(a)(3)(B)
of the Act;
(5) Gross average weekly remuneration, for the purposes of section
202(a)(3)(D)(i), means the remuneration offered for a week of work
before any deductions for taxes or other purposes and, in case the
offered pay may vary from week to week, it shall be determined on the
basis of recent experience of workers performing work similar to the
offered work for the employer who offered the work;
(6) And, as used in section 202(a)(3)(D)(ii), shall be interpreted
to mean ``or'';
(7) Provisions of the applicable State law, as used in section
202(a)(3)(D)(iii), include statutory provisions and decisions based on
statutory provisions, such as not requiring an individual to take a job
which requires traveling an unreasonable distance to work, or which
involves an unreasonable risk to the individual's health, safety or
morals; and such provisions shall also include labor standards and
training provisions required under sections 3304(a)(5) and 3304(a)(8) of
the Internal Revenue Code of 1986 and section 236(e) of the Trade Act of
1974;
(8) A systematic and sustained effort, for the purposes of section
202(a)(3)(E), means--
[[Page 83]]
(i) A high level of job search activity throughout the given week,
compatible with the number of employers and employment opportunities in
the labor market reasonably applicable to the individual,
(ii) A plan of search for work involving independent efforts on the
part of each individual which results in contacts with persons who have
the authority to hire or which follows whatever hiring procedure is
required by a prospective employer in addition to any search offered by
organized public and private agencies such as the State employment
service or union or private placement offices or hiring halls,
(iii) Actions by the individual comparable to those actions by which
jobs are being found by people in the community and labor market, but
not restricted to a single manner of search for work such as registering
with and reporting to the State employment service and union or private
placement offices or hiring halls, in the same manner that such work is
found by people in the community,
(iv) A search not limited to classes of work or rates of pay to
which the individual is accustomed or which represent the individual's
higher skills, and which includes all types of work within the
individual's physical and mental capabilities, except that the
individual, while classified by the State agency as provided in Sec.
615.8(d) as having ``good'' job prospects, shall search for work that is
suitable work under State law provisions which apply to claimants for
regular compensation (which is not sharable),
(v) A search by every claimant, without exception for individuals or
classes of individuals other than those in approved training, as
required under section 3304(a)(8) of the Internal Revenue Code of 1986
or section 236(e) of the Trade Act of 1974,
(vi) A search suspended only when severe weather conditions or other
calamity forces suspension of such activities by most members of the
community, except that
(vii) The individual, while classified by the State agency as
provided in Sec. 615.8(d) as having ``good'' job prospects, if such
individual normally obtains customary work through a hiring hall, shall
search for work that is suitable work under State law provisions which
apply to claimants for regular compensation (which is not sharable);
(9) Tangible evidence of an active search for work, for the purposes
of section 202(a)(3)(E), means a written record which can be verified,
and which includes the actions taken, methods of applying for work,
types of work sought, dates and places where work was sought, the name
of the employer or person who was contacted and the outcome of the
contact;
(10) Date of a disqualification, as used in section 202(a)(4), means
the date the disqualification begins, as determined under the applicable
State law;
(11) Jury duty, for purposes of section 202(a)(3)(A)(ii), means the
performance of service as a juror, during all periods of time an
individual is engaged in such service, in any court of a State or the
United States pursuant to the law of the State or the United States and
the rules of the court in which the individual is engaged in the
performance of such service; and
(12) Hospitalized for treatment of an emergency or life-threatening
condition, as used in section 202(a)(3)(A)(ii), has the following
meaning: ``Hospitalized for treatment'' means an individual was admitted
to a hospital as an inpatient for medical treatment. Treatment is for an
``emergency or life threatening condition'' if determined to be such by
the hospital officials or attending physician that provide the treatment
for a medical condition existing upon or arising after hospitalization.
For purposes of this definition, the term ``medical treatment'' refers
to the application of any remedies which have the objective of effecting
a cure of the emergency or life-threatening condition. Once an
``emergency condition'' or a ``life-threatening condition'' has been
determined to exist by the hospital officials or attending physician,
the status of the individual as so determined shall remain unchanged
until release from the hospital.
(p)(1) Claim filed in any State under the interstate benefit payment
plan, as used in section 202(c), means any interstate claim for a week
of unemployment filed pursuant to the Interstate Benefit Payment Plan,
but does not include--
[[Page 84]]
(i) A claim filed in Canada,
(ii) A visiting claim filed by an individual who has received
permission from his/her regular reporting office to report temporarily
to a local office in another State and who has been furnished intrastate
claim forms on which to file claims, or
(iii) A transient claim filed by an individual who is moving from
place to place searching for work, or an intrastate claim for Extended
Benefits filed by an individual who does not reside in a State that is
in an Extended Benefit Period,
(2) The first 2 weeks, as used in section 202(c), means the first
two weeks for which the individual files compensable claims for Extended
Benefits under the Interstate Benefit Payment Plan in an agent State in
which an Extended Benefit Period is not in effect during such weeks, and
(q) Benefit structure as used in section 204(a)(2)(D), for the
requirement to round down to the ``nearest lower full dollar amount''
for Federal reimbursement of sharable regular and sharable extended
compensation means all of the following:
(1) Amounts of regular weekly benefit payments,
(2) Amounts of additional and extended weekly benefit payments,
(3) The State maximum or minimum weekly benefit,
(4) Partial and part-total benefit payments,
(5) Amounts payable after deduction for pensions, and
(6) Amounts payable after any other deduction required by State law.
[53 FR 27937, July 25, 1988, as amended at 71 FR 35514, June 21, 2006]
Sec. 615.3 Effective period of the program.
An Extended Benefit Program conforming with the Act and this part
shall be a requirement for a State law effective on and after January 1,
1972, pursuant to section 3304(a)(11) of the Internal Revenue Code of
1986, (26 U.S.C. 3304(a)(11)). Continuation of the program by a State in
conformity and substantial compliance with the Act and this part,
throughout any 12-month period ending on October 31 of a year subsequent
to 1972, shall be a condition of the certification of the State with
respect to such 12-month period under section 3304(c) of the Internal
Revenue Code of 1986 (26 U.S.C. 3304(c)). Conformity with the Act and
this part in the payment of regular compensation and Extended Benefits
to any individual shall be a continuing requirement, applicable to every
week as a condition of a State's entitlement to payment for any
compensation as provided in the Act and this part.
Sec. 615.4 Eligibility requirements for Extended Benefits.
(a) General. An individual is entitled to Extended Benefits for a
week of unemployment which begins in the individual's eligibility period
if, with respect to such week, the individual is an exhaustee as defined
in Sec. 615.5, files a timely claim for Extended Benefits, and
satisfies the pertinent requirements of the applicable State law which
are consistent with the Act and this part.
(b) Qualifying for Extended Benefits. The State law shall specify
whether an individual qualifies for Extended Benefits by earnings and
employment in the base period for the individual's applicable benefit
year as required by section 202(a)(5) of the Act, (and if it does not
also apply this requirement to the payment of sharable regular benefits,
the State will not be entitled to a payment under Sec. 615.14), as
follows:
(1) One and one-half times the high quarter wages; or
(2) Forty times the most recent weekly benefit amount, and if this
alternative is adopted, it shall use the weekly benefit amount
(including dependents' allowances) payable for a week of total
unemployment (before any reduction because of earnings, pensions or
other requirements) which applied to the most recent week of regular
benefits; or
(3) Twenty weeks of full-time insured employment, and if this
alternative is adopted, the term ``full-time'' shall have the meaning
provided by the State law.
Sec. 615.5 Definition of ``exhaustee.''
(a)(1) ``Exhaustee'' means an individual who, with respect to any
week
[[Page 85]]
of unemployment in the individual's eligibility period:
(i) Has received, prior to such week, all of the regular
compensation that was payable under the applicable State law or any
other State law (including regular compensation payable to Federal
civilian employees and Ex-Servicemembers under 5 U.S.C. chapter 85) for
the applicable benefit year that includes such week; or
(ii) Has received, prior to such week, all of the regular
compensation that was available under the applicable State law or any
other State law (including regular compensation available to Federal
civilian employees and Ex-Servicemembers under 5 U.S.C. chapter 85) in
the benefit year that includes such week, after the cancellation of some
or all of the individual's wage credits or the total or partial
reduction of the individual's right to regular compensation; or
(iii) The applicable benefit year having expired prior to such week
and the individual is precluded from establishing a second (new) benefit
year, or the individual established a second benefit year but is
suspended indefinitely from receiving regular compensation, solely by
reason of a State law provision which meets the requirement of section
3304(a)(7) of the Internal Revenue Code of 1986 (26 U.S.C. 3304(a)(7)):
Provided, that, an individual shall not be entitled to Extended Benefits
based on regular compensation in a second benefit year during which the
individual is precluded from receiving regular compensation solely by
reason of a State law provision which meets the requirement of section
3304(a)(7) of the Internal Revenue Code of 1986 (26 U.S.C. 3304(a)(7));
or
(iv) The applicable benefit year having expired prior to such week,
the individual has insufficient wages or employment, or both, on the
basis of which a new benefit year could be established in any State that
would include such week; and
(v) Has no right to unemployment compensation for such week under
the Railroad Unemployment Insurance Act or such other Federal laws as
are specified by the Department pursuant to this paragraph; and
(vi) Has not received and is not seeking for such week unemployment
compensation under the unemployment compensation law of Canada, unless
the Canadian agency finally determines that the individual is not
entitled to unemployment compensation under the Canadian law for such
week.
(2) An individual who becomes an exhaustee as defined above shall
cease to be an exhaustee commencing with the first week that the
individual becomes eligible for regular compensation under any State law
or 5 U.S.C. chapter 85, or has any right to unemployment compensation as
provided in paragraph (a)(1)(v) of this section, or has received or is
seeking unemployment compensation as provided in paragraph (a)(1)(vi) of
this section. The individual's Extended Benefit Account shall be
terminated upon the occurrence of any such week, and the individual
shall have no further right to any balance in that Extended Benefit
Account.
(b) Special Rules. For the purposes of paragraphs (a)(1)(i) and
(a)(1)(ii) of this section, an individual shall be deemed to have
received in the applicable benefit year all of the regular compensation
payable according to the monetary determination, or available to the
individual, as the case may be, even though--
(1) As a result of a pending appeal with respect to wages or
employment or both that were not included in the original monetary
determination with respect to such benefit year, the individual may
subsequently be determined to be entitled to more or less regular
compensation, or
(2) By reason of a provision in the State law that establishes the
weeks of the year in which regular compensation may be paid to the
individual on the basis of wages in seasonal employment--
(i) The individual may be entitled to regular compensation with
respect to future weeks of unemployment in the next season or off
season, as the case may be, but such compensation is not payable with
respect to the week of unemployment for which Extended Benefits are
claimed, and
(ii) The individual is otherwise an exhaustee within the meaning of
this
[[Page 86]]
section with respect to rights to regular compensation during the season
or off season in which that week of unemployment occurs, or
(3) Having established a benefit year, no regular compensation is
payable during such year because wage credits were cancelled or the
right to regular compensation was totally reduced as the result of the
application of a disqualification.
(c) Adjustment of week. If it is subsequently determined as the
result of a redetermination or appeal that an individual is an exhaustee
as of a different week than was previously determined, the individual's
rights to Extended Benefits shall be adjusted so as to accord with such
redetermination or decision.
[53 FR 27937, July 25, 1988, as amended at 71 FR 35514, June 21, 2006]
Sec. 615.6 Extended Benefits; weekly amount.
(a) Total unemployment. (1) The weekly amount of Extended Benefits
payable to an individual for a week of total unemployment in the
individual's eligibility period shall be the amount of regular
compensation payable to the individual for a week of total unemployment
during the applicable benefit year. If the individual had more than one
weekly amount of regular compensation for total unemployment during such
benefit year, the weekly amount of extended compensation for total
unemployment shall be one of the following which applies as specified in
the applicable State law:
(i) The average of such weekly amounts of regular compensation,
(ii) The last weekly benefit amount of regular compensation in such
benefit year, or
(iii) An amount that is reasonably representative of the weekly
amounts of regular compensation payable during such benefit year.
(2) If the method in paragraph (a)(1)(iii) of this section is
adopted by a State, the State law shall specify how such amount is to be
computed. If the method in paragraph (a)(1)(i) of this section is
adopted by a State, and the amount computed is not an even dollar
amount, the amount shall be raised or lowered to an even dollar amount
as provided by the applicable State law for regular compensation.
(b) Partial and part-total unemployment. The weekly amount of
Extended Benefits payable for a week of partial or part-total
unemployment shall be determined under the provisions of the applicable
State law which apply to regular compensation, computed on the basis of
the weekly amount of Extended Benefits payable for a week of total
unemployment as determined pursuant to paragraph (a) of this section.
Sec. 615.7 Extended Benefits; maximum amount.
(a) Individual account. An Extended Benefit Account shall be
established for each individual determined to be eligible for Extended
Benefits, in the sum of the maximum amount potentially payable to the
individual as computed in accordance with paragraph (b) of this section.
(b) Computation of amount in individual account. (1) The amount
established in the Extended Benefit Account of an individual, as the
maximum amount potentially payable to the individual during the
individual's eligibility period, shall be equal to the lesser of--
(i) 50 percent of the total amount of regular compensation
(including dependents' allowances) payable to the individual during the
individual's applicable benefit year; or
(ii) 13 times the individual's weekly amount of Extended Benefits
payable for a week of total unemployment, as determined pursuant to
Sec. 615.6(a); or
(iii) 39 times the individual's weekly benefit amount referred to in
(ii), reduced by the regular compensation paid (or deemed paid) to the
individual during the individual's applicable benefit year.
(2) If the State law so provides, the amount in the individual's
Extended Benefit Account shall be reduced by the aggregate amount of
additional compensation paid (or deemed paid) to the individual under
such law for prior weeks of unemployment in such benefit year which did
not begin in an Extended Benefit Period.
[[Page 87]]
(c) Changes in accounts. (1) If an individual is entitled to more or
less Extended Benefits as a result of a redetermination or an appeal
which awarded more or less regular compensation or Extended Benefits, an
appropriate change shall be made in the individual's Extended Benefit
Account pursuant to an amended determination of the individual's
entitlement to Extended Benefits.
(2) If an individual who has received Extended Benefits for a week
of unemployment is determined to be entitled to more regular
compensation with respect to such week as the result of a
redetermination or an appeal, the Extended Benefits paid shall be
treated as if they were regular compensation up to the greater amount to
which the individual has been determined to be entitled, and the State
agency shall make appropriate adjustments between the regular and
extended accounts. If the individual is entitled to more Extended
Benefits as a result of being entitled to more regular compensation, an
amended determination shall be made of the individual's entitlement to
Extended Benefits. If the greater amount of regular compensation results
in an increased duration of regular compensation, the individual's
status as an exhaustee shall be redetermined as of the new date of
exhaustion of regular compensation.
(3) If an individual who has received Extended Benefits for a week
of unemployment is determined to be entitled to less regular
compensation as the result of a redetermination or an appeal, and as a
consequence is entitled to less Extended Benefits, any Extended Benefits
paid in excess of the amount to which the individual is determined to be
entitled after the redetermination or decision on appeal shall be
considered an overpayment which the individual shall have to repay on
the same basis and in the same manner that excess payments of regular
compensation are required to be repaid under the applicable State law.
If such decision reduces the duration of regular compensation payable to
the individual, the claim for Extended Benefits shall be backdated to
the earliest date, subsequent to the date when the redetermined regular
compensation was exhausted and within the individual's eligibility
period, that the individual was eligible to file a claim for Extended
Benefits. Any such changes shall be made pursuant to an amended
determination of the individual's entitlement to Extended Benefits.
(d) Reduction because of trade readjustment allowances. Section
233(d) of the Trade Act of 1974 (and section 204(a)(2)(C) of the Act),
requiring a reduction of Extended Benefits because of the receipt of
trade readjustment allowances, shall be applied as follows:
(1) The reduction of Extended Benefits shall apply only to an
individual who has not exhausted his/her Extended Benefits at the end of
the benefit year;
(2) The amount to be deducted is the product of the weekly benefit
amount for Extended Benefits multiplied by the number of weeks for which
trade readjustment allowances were paid (regardless of the amount paid
for any such week) up to the close of the last week that begins in the
benefit year; and
(3) The amount to be deducted shall be deducted from the balance of
Extended Benefits not used as of the close of the last week which begins
in the benefit year.
Sec. 615.8 Provisions of State law applicable to claims.
(a) Particular provisions applicable. Except where the result would
be inconsistent with the provisions of the Act or this part, the terms
and conditions of the applicable State law which apply to claims for,
and the payment of, regular compensation shall apply to claims for, and
the payment of, Extended Benefits. The provisions of the applicable
State law which shall apply to claims for, and the payment of, Extended
Benefits include, but are not limited to:
(1) Claim filing and reporting;
(2) Information to individuals, as appropriate;
(3) Notices to individuals and employers, as appropriate;
(4) Determinations, redeterminations, and appeal and review;
(5) Ability to work and availability for work, except as provided
otherwise in this section;
[[Page 88]]
(6) Disqualifications, including disqualifying income provisions,
except as provided by paragraph (c) of this section;
(7) Overpayments, and the recovery thereof;
(8) Administrative and criminal penalties;
(9) The Interstate Benefit Payment Plan;
(10) The Interstate Arrangement for Combining Employment and Wages,
in accordance with part 616 of this chapter.
(b) Provisions not to be applicable. The State law and regulations
shall specify those of its terms and conditions which shall not be
applicable to claims for, or payment of, Extended Benefits. Among such
terms and conditions shall be at least those relating to--
(1) Any waiting period;
(2) Monetary or other qualifying requirements, except as provided in
Sec. 615.4(b); and
(3) Computation of weekly and total regular compensation.
(c) Terminating disqualifications. A disqualification in a State
law, as to any individual who voluntarily left work, was suspended or
discharged for misconduct, gross misconduct or the commission or
conviction of a crime, or refused an offer of or a referral to work, as
provided in sections 202(a) (4) and (6) of the Act--
(1) As applied to regular benefits which are not sharable, is not
subject to any limitation in sections 202(a) (4) and (6);
(2) As applied to eligibility for Extended Benefits, shall require
that the individual be employed again subsequent to the date of the
disqualification before it may be terminated, even though it may have
been terminated on other grounds for regular benefits which are not
sharable; and if the State law does not also apply this provision to the
payment of what would otherwise be sharable regular benefits, the State
will not be entitled to a payment under the Act and Sec. 615.14 in
regard to such regular compensation; and
(3) Will not apply in regard to eligibility for Extended Benefits in
a subsequent eligibility period.
(d) Classification and determination of job prospects. (1) As to
each individual who files an initial claim for Extended Benefits (or
sharable regular compensation), the State agency shall classify the
individual's prospects for obtaining work in his/her customary
occupation within a reasonably short period, as ``good'' or ``not
good,'' and shall promptly (not later than the end of the week in which
the initial claim is filed) notify the individual in writing of such
classification and of the requirements applicable to the individual
under the provisions of the applicable State law corresponding to
section 202(a)(3) of the Act and this part. Such requirements shall be
applicable beginning with the week following the week in which the
individual is furnished such written notice.
(2) If an individual is thus classified as having good prospects,
but those prospects are not realized by the close of the period the
State law specifies as a reasonably short period, the individual's
prospects will be automatically reclassified as ``not good'' or
classified as ``good'' or ``not good'' depending on the individual's job
prospects as of that date.
(3) Whenever, as part of a determination of an individual's
eligibility for benefits, an issue arises concerning the individual's
failure to apply for or accept an offer of work (sections
202(a)(3)(A)(i) and (F) of the Act and paragraphs (e) and (f) of this
section), or to actively engage in seeking work (sections
202(a)(3)(A)(ii) and (E) of the Act and paragraph (g) of this section),
a written appealable determination shall be made which includes a
finding as to the individual's job prospects at the time the issue
arose. The reasons for allowing or denying benefits in the written
notice of determination shall explain how the individual's job prospects
relate to the decision to allow or deny benefits.
(4) If an individual's job prospects are determined in accordance
with the preceding paragraph (3) to be ``good,'' the suitability of work
will be determined under the standard State law provisions applicable to
claimants for regular compensation which is not sharable; and if
determined to be ``not good,'' the suitability of work will be
determined under the definition of
[[Page 89]]
suitable work in the State law provisions corresponding to sections
202(a)(3) (C) and (D) of the Act and this part. Any determination or
classification of an individual's job prospects is mutually exclusive,
and only one suitable work definition shall be applied to a claimant as
to any failure to accept or apply for work or seek work with respect to
any week.
(e) Requirement of referral to work. (1) The State law shall
provide, as required by section 202(a)(3)(F) of the Act and this part,
that the State Workforce Agency shall refer every claimant for Extended
Benefits to work which is ``suitable work'' as provided in paragraph
(d)(4) of this section, beginning with the week following the week in
which the individual is furnished a written notice of classification of
job prospects as required by paragraphs (d)(1) and (h) of this section.
(2) To make such referrals, the State Workforce Agency shall assure
that each Extended Benefit claimant is registered for work and continues
to be considered for referral to job openings as long as he/she
continues to claim benefits.
(3) In referring claimants to available job openings, the State
Workforce Agency shall apply to Extended Benefit claimants the same
priorities, policies, and judgments as it does to other applicants,
except that it shall not restrict referrals only to work at higher skill
levels, prior rates of pay, customary work, or preferences as to work or
pay for individuals whose prospects of obtaining work in their customary
occupations have been classified as or determined to be ``not good.''
(4) For referral purposes, any work which does not exceed the
individual's capabilities shall be considered suitable work for an
Extended Benefit claimant whose job prospects have been classified as or
determined to be ``not good'', except as modified by this paragraph (e).
(5) For Extended Benefit claimants whose prospects of obtaining work
in their customary occupations have been classified as or determined to
be ``not good'', work shall not be suitable, and referral to a job shall
not be made, if--
(i) The gross average weekly remuneration for the work for any week
does not exceed the sum of the individual's weekly benefit amount plus
any supplemental unemployment benefits (SUB) (as defined in section
501(c)(17)(D) of the Internal Revenue Code of 1986) payable to the
individual,
(ii) The work is not offered in writing or is not listed with the
State employment service,
(iii) The work pays less than the higher of the minimum wage set in
section 6(a)(1) of the Fair Labor Standards Act of 1938, without regard
to any exemption, or any applicable State or local minimum wage, or
(iv) Failure to accept or apply for the work would not result in a
denial of compensation under the provisions of the applicable State law
as defined in Sec. 615.2(o)(7).
(6) In addition, if the State Workforce Agency classifies or
determines that an individual's prospects for obtaining work in his/her
customary occupation within a reasonably short period are ``good,''
referral shall not be made to a job if such referral would not be made
under the State law provisions applicable to claimants for regular
benefits which are not sharable, and such referrals shall be limited to
work which the individual is required to make a ``systematic and
sustained effort'' to search for as defined in Sec. 615.2(o)(8).
(7) For the purposes of the foregoing paragraphs of this paragraph
(e), State law applies regarding whether members of labor organizations
shall be referred to nonunion work in their customary occupations.
(8) If the State law does not also apply this paragraph (e) to
individuals who claim what would otherwise be sharable regular
compensation, the State will not be entitled to payment under the Act
and Sec. 615.14 in regard to such regular compensation.
(f) Refusal of work. (1) The State law shall provide, as required by
section 202(a)(3)(A)(i) of the Act and this part, that if an individual
who claims Extended Benefits fails to accept an offer of work or fails
to apply for work to which he/she was referred by the State Workforce
Agency--
(i) If the individual's prospects for obtaining work in his/her
customary occupation within a reasonably short
[[Page 90]]
period are determined to be ``good,'' the State agency shall determine
whether the work is suitable under the standard State law provisions
which apply to claimants for regular compensation which is not sharable,
and if determined to be suitable the individual shall be ineligible for
Extended Benefits for the week in which the individual fails to apply
for or accept an offer of suitable work and thereafter until the
individual is employed in at least four weeks with wages from such
employment totalling not less than four times the individual's weekly
benefit amount, as provided by the applicable State law; or
(ii) If the individual's prospects for obtaining work in his/her
customary occupation are determined to be ``not good,'' the State agency
shall determine whether the work is suitable under the applicable State
law provisions corresponding to sections 202(a)(3) (C) and (D) of the
Act and paragraphs (e)(5) and (f)(2) of this section, and if determined
to be suitable the individual shall be ineligible for Extended Benefits
for the week in which the individual fails to apply for or accept an
offer of suitable work and thereafter until the individual is employed
in at least four weeks with wages from such employment totalling not
less than four times the individual's weekly benefit amount, as provided
by the applicable State law.
(2) For an individual whose prospects of obtaining work in his/her
customary occupation within the period specified by State law are
classified or determined to be ``not good,'' the term ``suitable work''
shall mean any work which is within the individual's capabilities,
except that work shall not be suitable if--
(i) The gross average weekly remuneration for the work for any week
does not exceed the sum of the individual's weekly benefit amount plus
any supplemental unemployment benefits (SUB) (as defined in section
501(c)(17)(D) of the Internal Revenue Code of 1986) payable to the
individual,
(ii) The work is not offered in writing or is not listed with the
State employment service,
(iii) The work pays less than the higher of the minimum wage set in
section 6(a)(1) of the Fair Labor Standards Act of 1938, without regard
to any exemption, or any applicable State or local minimum wage, or
(iv) Failure to accept or apply for the work would not result in a
denial of compensation under the provisions of the applicable State law
as defined in Sec. 615.2(o)(7).
(3) For the purposes of the foregoing paragraphs of this paragraph
(f), State law applies regarding whether members of labor organizations
shall be referred to nonunion work in their customary occupations.
(4) If the State law does not also apply this paragraph (f) to
individuals who claim what would otherwise be sharable regular
compensation, the State will not be entitled to payment under the Act
and Sec. 615.14 in regard to such regular compensation.
(g) Actively seeking work. (1) The State law shall provide, as
required by sections 202(a)(3) (A)(ii) and (E) of the Act and this part,
that an individual who claims Extended Benefits shall be required to
make a systematic and sustained effort (as defined in Sec. 615.2(o)(8))
to search for work which is ``suitable work'' as provided in paragraph
(d)(4) of this section, throughout each week beginning with the week
following the week in which the individual is furnished a written notice
of classification of job prospects as required by paragraphs (d)(1) and
(h) of this section, and to furnish to the State agency with each claim
tangible evidence of such efforts.
(2) If the individual fails to thus search for work, or to furnish
tangible evidence of such efforts, he/she shall be ineligible for
Extended Benefits for the week in which the failure occurred and
thereafter until the individual is employed in at least four weeks with
wages from such employment totalling not less than four times the
individual's weekly benefit amount, as provided by the applicable State
law.
(3)(i) A State law may provide that eligibility for Extended
Benefits be determined under the applicable provisions of State law for
regular compensation which is not sharable, without regard to the active
search provisions otherwise applicable in paragraph (g)(1) of this
section, for any individual
[[Page 91]]
who fails to engage in a systematic and sustained search for work
throughout any week because such individual is--
(A) Serving on jury duty, or
(B) Hospitalized for treatment of an emergency or life-threatening
condition.
(ii) The conditions in (i) (A) and (B) must be applied to
individuals filing claims for Extended Benefits in the same manner as
applied to individuals filing claims for regular compensation which is
not sharable compensation.
(4) For the purposes of the foregoing paragraphs of this paragraph
(g), State law applies regarding whether members of labor organizations
shall be required to seek nonunion work in their customary occupations.
(5) If the State law does not also apply this paragraph (g) to
individuals who claim what would otherwise be sharable regular
compensation, the State will not be entitled to payment under the Act
and Sec. 615.14 in regard to such regular compensation.
(h) Information to claimants. The State agency or State Workforce
Agency, as applicable, shall assure that each Extended Benefit claimant
(and claimant for sharable regular compensation) is informed in
writing--
(1) Of the State agency's classification of his/her prospects for
finding work in his/her customary occupation within the time set out in
paragraph (d) as ``good'' or ``not good,''
(2) What kind of jobs he/she may be referred to, depending on the
classification of his/her job prospects,
(3) What kind of jobs he/she must be actively engaged in seeking
each week depending on the classification of his/her job prospects, and
what tangible evidence of such search must be furnished to the State
agency with each claim for benefits, and
(4) The resulting disqualification if he/she fails to apply for work
to which referred, or fails to accept work offered, or fails to actively
engage in seeking work or to furnish tangible evidence of such search
for each week for which Extended Benefits or sharable regular benefits
are claimed, beginning with the week following the week in which such
information is furnished in writing to the individual.
[53 FR 27937, July 25, 1988, as amended at 71 FR 35514, June 21, 2006]
Sec. 615.9 Restrictions on entitlement.
(a) Disqualifications. If the week of unemployment for which an
individual claims Extended Benefits is a week to which a
disqualification for regular compensation applies, including a reduction
because of the receipt of disqualifying income, or would apply but for
the fact that the individual has exhausted all rights to such
compensation, the individual shall be disqualified in the same degree
from receipt of Extended Benefits for that week.
(b) Additional compensation. No individual shall be paid additional
compensation and Extended Benefits with respect to the same week. If
both are payable by a State with respect to the same week, the State law
may provide for the payment of Extended Benefits instead of additional
compensation with respect to the week. If Extended Benefits are payable
to an individual by one State and additional compensation is payable to
the individual for the same week by another State, the individual may
elect which of the two types of compensation to claim.
(c) Interstate claims. An individual who files claims for Extended
Benefits under the Interstate Benefit Payment Plan, in a State which is
not in an Extended Benefit Period for the week(s) for which Extended
Benefits are claimed, shall not be paid more than the first two weeks
for which he/she files such claims.
(d) Other restrictions. The restrictions on entitlement specified in
this section are in addition to other restrictions in the Act and this
part on eligibility for and entitlement to Extended Benefits.
Sec. 615.10 Special provisions for employers.
(a) Charging contributing employers. (1) Section 3303(a)(1) of the
Internal Revenue Code of 1986 (26 U.S.C. 3303(a)(1)) does not require
that Extended Benefits paid to an individual be charged to the
experience rating accounts of employers.
[[Page 92]]
(2) A State law may, however, consistently with section 3303(a)(1),
require the charging of Extended Benefits paid to an individual; and if
it does, it may provide for charging all or any portion of such
compensation paid.
(3) Sharable regular compensation must be charged as all other
regular compensation is charged under the State law.
(b) Payments by reimbursing employers. If an employer is reimbursing
the State unemployment fund in lieu of paying contributions pursuant to
the requirements of State law conforming with sections 3304(a)(6)(B) and
3309(a)(2) of the Internal Revenue Code of 1986 (26 U.S.C. 3304(a)(6)(B)
and 3309(a)(2)), the State law shall require the employer to reimburse
the State unemployment fund for not less than 50 percent of any sharable
compensation that is attributable under the State law to service with
such employer; and as to any compensation which is not sharable
compensation under Sec. 615.14, the State law shall require the
employer to reimburse the State unemployment fund for 100 percent,
instead of 50 percent, of any such compensation paid.
Sec. 615.11 Extended Benefit Periods.
(a) Beginning date. Except as provided in paragraph (d) of this
section, an Extended Benefit Period shall begin in a State on the first
day of the third calendar week after a week for which there is a State
``on'' indicator in that State.
(b) Ending date. Except as provided in paragraph (c) of this
section, an Extended Benefit Period in a State shall end on the last day
of the third week after the first week for which there is a State
``off'' indicator in that State.
(c) Duration. An Extended Benefit Period which becomes effective in
any State shall continue in effect for not less than 13 consecutive
weeks.
(d) Limitation. No Extended Benefit Period may begin in any State by
reason of a State ``on'' indicator before the 14th week after the ending
of a Prior Extended Benefit Period with respect to such State.
Sec. 615.12 Determination of ``on'' and ``off'' indicators.
(a) Standard State indicators. (1) There is a State ``on'' indicator
in a State for a week if the head of the State agency determines, in
accordance with this section, that, for the period consisting of that
week and the immediately preceding 12 weeks, the rate of insured
unemployment (not seasonally adjusted) under the State law--
(i) Equalled or exceeded 120 percent of the average of such rates
for the corresponding 13-week periods ending in each of the preceding
two calendar years, and
(ii) Equalled or exceeded 5.0 percent.
(2) There is a State ``off'' indicator in a State for a week if the
head of the State agency determines, in accordance with this section,
that, for the period consisting of that week and the immediately
preceding 12 weeks, the rate of insured unemployment (not seasonally
adjusted) under the State law--
(i) Was less than 120 percent of the average of such rates for the
corresponding 13 week periods ending in each of the preceding two
calendar years, or
(ii) Was less than 5.0 percent.
(3) The standard State indicators in this paragraph (a) shall apply
to weeks beginning after September 25, 1982.
(b) Optional State indicators. (1)(i) A State may, in addition to
the State indicators in paragraph (a) of this section, provide by its
law that there shall be a State ``on'' indicator in the State for a week
if the head of the State agency determines, in accordance with this
section, that, for the period consisting of that week and the
immediately preceding 12 weeks, the rate of insured unemployment (not
seasonally adjusted) under the State law equalled or exceeded 6.0
percent even though it did not meet the 120 percent factor required
under paragraph (a).
(ii) A State which adopts the optional State indicator must also
provide that, when it is in an Extended Benefit Period, there will not
be an ``off'' indicator until (A) the State rate of insured unemployment
is less than 6.0 percent, and (B) either its rate of insured
unemployment is less than 5.0 percent or is less than 120 percent of
[[Page 93]]
the average of such rates for the corresponding 13-week periods ending
in each of the preceding two calendar years.
(2) The optional State indicators in this paragraph (b) shall apply
to weeks beginning after September 25, 1982.
(c) Computation of rate of insured unemployment--(1) Equation. Each
week the State agency head shall calculate the rate of insured
unemployment under the State law (not seasonally adjusted) for purposes
of determining the State ``on'' and ``off'' and ``no change''
indicators. In making such calculations the State agency head shall use
a fraction, the numerator of which shall be the weekly average number of
weeks claimed in claims filed (not seasonally adjusted) in the State in
the 13-week period ending with the week for which the determination is
made, and the denominator of which shall be the average monthly
employment covered by the State law for the first four of the last six
calendar quarters ending before the close of the 13-week period. The
quotient obtained is to be computed to four decimal places, and is not
otherwise rounded, and is to be expressed as a percentage by multiplying
the resultant decimal fraction by 100.
(2) Counting weeks claimed. To determine the average number of weeks
claimed in claims filed to serve as the numerator under paragraph
(c)(1), the State agency shall include claims for all weeks for regular
compensation, including claims taken as agent State under the Interstate
Benefit Payment Plan. It shall exclude claims--
(i) For Extended Benefits under any State law,
(ii) For additional compensation under any State law, and
(iii) Under any Federal law except joint claims which combine
regular compensation and compensation payable under 5 U.S.C. chapter 85.
(3) Method of computing the State 120 percent factor. The rate of
insured unemployment for a current 13-week period shall be divided by
the average of the rates of insured unemployment for the corresponding
13-week periods in each of the two preceding calendar years to determine
whether the rate is equal to 120 percent of the average rate for the two
years. The quotient obtained shall be computed to four decimal places
and not otherwise rounded, and shall be expressed as a percentage by
multiplying the resultant decimal fraction by 100. The average of the
rates for the corresponding 13-week periods in each of the two preceding
calendar years shall be one-half the sum of such rates computed to four
decimal places and not otherwise rounded. To determine which are the
corresponding weeks in the preceding years--
(i) The weeks shall be numbered starting with week number 1 as the
first week ending in each calendar year.
(ii) The 13-week period ending with any numbered week in the current
year shall correspond to the period ending with that same numbered week
in each preceding year.
(iii) When that period in the current year ends with week number 53,
the corresponding period in preceding years shall end with week number
52 if there is no week number 53.
(d) Amendment of State indicator rates. (1) Because figures used for
determinations under this section may contain errors and because it is
not practical to apply any correction in a State ``on'' or ``off'' or
``no change'' indicator retroactively either to recover amounts paid or
to adjudicate claims for past periods in which claimants failed to make
the required active search for work, any determination by the head of a
State agency of an ``on'' or ``off'' or ``no change'' indicator shall
not be corrected more than three weeks after the close of the week to
which it applies. If any figure used in the computation of a rate of
insured unemployment is later found to be wrong, the correct figure
shall be used to redetermine the rate of insured unemployment and of the
120 percent factor for that week and all subsequent weeks, but no
determination of previous ``on'' or ``off'' or ``no change'' indicator
shall be affected unless the redetermination is made within the time the
indicator may be corrected under the first sentence of this paragraph
(d)(1). Any change hereunder shall be subject to the concurrence of the
Department as provided in paragraph (e) of this section.
(2) Any determination of the rate of insured unemployment and its
effect
[[Page 94]]
on an ``on'' or ``off'' or ``no change'' indicator may be challenged by
appeal or by other proceedings, as shall be provided by State law, but
the implementation of any change in the indicator from one week to
another shall not be stayed or postponed. In a hearing on any such
challenge the issue may be limited to the accuracy of the determination
of the rate of insured unemployment. If an error in that rate affecting
the ``on'' or ``off'' or ``no change'' indicator is discovered in such a
hearing or other proceeding, its retroactive effect shall be limited as
provided in paragraph (d)(1).
(e) Notice to Secretary. Within 10 calendar days after the end of
any week with respect to which the head of a State agency has determined
that there is an ``on,'' or ``off,'' or ``no change'' indicator in the
State, the head of the State agency shall notify the Department of the
determination. The notice shall state clearly the State agency head's
determination of the specific week for which there is a State ``on'' or
``off'' or ``no change'' indicator. The notice shall include also the
State agency head's findings supporting the determination, with a
certification that the findings are made in accordance with the
requirements of this Sec. 615.15. Determinations and findings made as
provided in this section shall be accepted by the Department, but the
head of the State agency shall comply with such provisions as the
Department may find necessary to assure the correctness and verification
of notices given under this paragraph. A notice shall not become final
for purposes of the Act and this part until such notice is accepted by
the Department.
Sec. 615.13 Announcement of the beginning and ending of Extended
Benefit Periods.
(a) State indicators. Upon receipt of the notice required by Sec.
615.12(e) which is acceptable to the Department, the Department shall
publish in the Federal Register a notice of the State agency head's
determination that there is an ``on'' or an ``off'' indicator in the
State, as the case may be, the name of the State and the beginning or
ending of the Extended Benefit Period, whichever is appropriate. The
Department shall also notify appropriate news media, the heads of all
other State agencies, and the Regional Administrators of the Employment
and Training Administration of the State agency head's determination of
such State ``on'' or ``off'' indicator and of its effect.
(b) Publicity by State. Whenever a State agency head determines that
there is an ``on'' indicator in the State by reason of which an Extended
Benefit Period will begin in the State, or an ``off'' indicator by
reason of which an Extended Benefit Period in the State will end, the
head of the State agency shall promptly announce the determination
through appropriate news media in the State and notify the Department in
accordance with Sec. 615.12(e). Such announcement shall include the
beginning or ending date of the Extended Benefit Period, whichever is
appropriate. In the case of an Extended Benefit Period that is about to
begin, the announcement shall describe clearly the unemployed
individuals who may be eligible for Extended Benefits during the period,
and in the case of an Extended Benefit Period that is about to end, the
announcement shall also describe clearly the individuals whose
entitlement to Extended Benefits will be terminated.
(c) Notices to individuals. (1) Whenever there has been a
determination that an Extended Benefit Period will begin in a State, the
State agency shall provide prompt written notice of potential
entitlement to Extended Benefits to each individual who has established
a benefit year in the State that will not end prior to the beginning of
the Extended Benefit Period, and who exhausted all rights under the
State law to regular compensation before the beginning of the Extended
Benefit Period.
(2) The State agency shall provide such notice promptly to each
individual who begins to claim sharable regular benefits or who exhausts
all rights under the State law to regular compensation during an
Extended Benefit Period, including exhaustion by reason of the
expiration of the individual's benefit year.
(3) The notices required by paragraphs (c) (1) and (2) of this
section shall describe those actions required of
[[Page 95]]
claimants for sharable regular compensation and Extended Benefits and
those disqualifications which apply to such benefits which are different
from those applicable to other claimants for regular compensation which
is not sharable.
(4) Whenever there has been a determination that an Extended Benefit
Period will end in a State, the State agency shall provide prompt
written notice to each individual who is currently filing claims for
Extended Benefits of the forthcoming end of the Extended Benefit Period
and its effect on the individual's right to Extended Benefits.
Sec. 615.14 Payments to States.
(a) Sharable compensation. (1) The Department shall promptly upon
receipt of a State's report of its expenditures for a calendar month
reimburse the State in the amount of the sharable compensation the State
is entitled to receive under the Act and this part.
(2) The Department may instead advance to a State for any period not
greater than one day the amount the Department estimates the State will
be entitled to be paid under the Act and this part for that period.
(3) Any payment to a State under this section shall be based upon
the Department's determination of the amount the State is entitled to be
paid under the Act and this part, and such amount shall be reduced or
increased, as the case may be, by any amount by which the Department
finds that a previous payment was greater or less than the amount that
should have been paid to the State.
(4) Any payment to a State pursuant to this paragraph (a) shall be
made by a transfer from the extended unemployment compensation account
in the Unemployment Trust Fund to the account of the State in such Fund,
in accordance with section 204(e) of the Act.
(b) Payments not to be made to States. Because a State law must
contain provisions fully consistent with sections 202 and 203 of the
Act, the Department shall make no payment under paragraph (a) of this
section, whether or not the State is certified under section 3304(c) of
the Internal Revenue Code of 1986--
(1) In respect of any regular or extended compensation paid to any
individual for any week if the State does not apply--
(i) The provisions of the State law required by section 202(a)(3)
and this part, relating to failure to accept work offered or to apply
for work or to actively engage in seeking work or the provisions of
State law required by section 202(a)(4) and this part, relating to
terminating a disqualification;
(ii) The provisions of the State law required by section 202(a)(5)
and this part, relating to qualifying employment; or
(2) In respect of any regular or extended compensation paid to any
individual for any week which was not payable by reason of the provision
of the State law required by section 202(c) and this part as determined
by the Department with regard to each State.
(c) Payments not to be reimbursed. The Department shall make no
payment under paragraph (a) of this section, whether or not the State is
certified under section 3304(c) of the Internal Revenue Code of 1986, in
respect of any regular or extended compensation paid under a State law--
(1) As provided in section 204(a)(1) of the Act and this part, if
the payment made was not sharable extended compensation or sharable
regular compensation;
(2) As provided in section 204(a)(2)(A) of the Act, if the State is
entitled to reimbursement for the payment under the provisions of any
Federal law other than the Act;
(3) As provided in section 204(a)(2)(B) of the Act, if for the first
week in an individual's eligibility period with respect to which
Extended Benefits or sharable regular benefits are paid to the
individual and the State law provides for the payment (at any time or
under any circumstances) of regular compensation to any individual for
the first week of unemployment in any such individual's benefit year;
except that--
(i) In the case of a State law which is changed so that regular
compensation is not paid at any time or under any circumstances with
respect to the first week of unemployment in any individual's benefit
year, this paragraph (c)(3)
[[Page 96]]
shall not apply to any week which begins after the effective date of
such change in the State law; and
(ii) In the case of a State law which is changed so that regular
compensation is paid at any time or under any circumstances with respect
to the first week of unemployment in any individual's benefit year, this
paragraph (c)(3) shall apply to all weeks which begin after the
effective date of such change in the State law;
(4) As provided in section 204(a)(2)(C) of the Act and this part,
for any week with respect to which Extended Benefits are not payable
because of the payment of trade readjustment allowances, as provided in
section 233(d) of the Trade Act of 1974, and Sec. 615.7(d).
(5) As provided in section 204(a)(2)(D) of the Act and this part, if
the State does not provide for a benefit structure under which benefits
are rounded down to the next lower dollar amount, for the 50 percent
Federal share of the amount by which sharable regular or Extended
Benefits paid to any individual exceeds the nearest lower full dollar
amount.
(6) As provided in section 204(a)(3) of the Act, to the extent that
such compensation is based upon employment and wages in service
performed for governmental entities or instrumentalities to which
section 3306(c)(7) of the Internal Revenue Code of 1986 (26 U.S.C.
3306(c)(7)) applies, in the proportion that wages for such service in
the base period bear to the total base period wages;
(7) If the payment made was not sharable extended compensation or
sharable regular compensation because the payment was not consistent
with the requirements of--
(i) Section 202(a)(3) of the Act, and Sec. 615.8 (e), (f), or (g);
(ii) Section 202(a)(4) of the Act, and Sec. 615.8(c); or
(iii) Section 202(a)(5) of the Act, and Sec. 615.4(b);
(8) If the payment made was not sharable extended compensation or
sharable regular compensation because there was not in effect in the
State an Extended Benefit Period in accord with the Act and this part;
or
(9) For any week with respect to which the claimant was either
ineligible for or not entitled to the payment.
(d) Effectuating authorization for reimbursement. (1) If the
Department believes that reimbursement should not be authorized with
respect to any payments made by a State that are claimed to be sharable
compensation paid by the State, because the State law does not contain
provisions required by the Act and this part, or because such law is not
interpreted or applied in rules, regulations, determinations or
decisions in a manner that is consistent with those requirements, the
Department may at any time notify the State agency in writing of the
Department's view. The State agency shall be given an opportunity to
present its views and arguments if desired.
(2) The Department shall thereupon decide whether the State law
fails to include the required provisions or is not interpreted and
applied so as to satisfy the requirements of the Act and this part. If
the Department finds that such requirements are not met, the Department
shall notify the State agency of its decision and the effect thereof on
the State's entitlement to reimbursement under this section and the
provisions of section 204 of the Act.
(3) Thereafter, the Department shall not authorize any payment under
paragraph (a) of this section in respect of any sharable regular or
extended compensation if the State law does not contain all of the
provisions required by sections 202 and 203 of the Act and this part, or
if the State law, rules, regulations, determinations or decisions are
not consistent with such requirements, or which would not have been
payable if the State law contained the provisions required by the Act
and this part or if the State law, rules, regulations, determinations or
decisions had been consistent with such requirements. Loss of
reimbursement for such compensation shall begin with the date the State
law was required to contain such provisions, and shall continue until
such time as the Department finds that such law, rules and regulations
have been revised or the interpretations followed pursuant to such
determinations and decisions have been overruled and payments are made
or
[[Page 97]]
denied so as to accord with the Federal law requirements of the Act and
this part, but no reimbursement shall be authorized with respect to any
payment that did not fully accord with the Act and this part.
(4) A State agency may request reconsideration of a decision issued
pursuant to paragraph (d)(2) above, within 10 calendar days of the date
of such decision, and shall be given an opportunity to present views and
arguments if desired.
(5) Concurrence of the Department in any State law provision, rule,
regulation, determination or decision shall not be presumed from the
absence of notice issued pursuant to this section or from a
certification of the State issued pursuant to section 3304(c) of the
Internal Revenue Code of 1986.
(6) Upon finding that a State has made payments for which it claims
reimbursement that are not consistent with the Act or this part, such
claim shall be denied; and if the State has already been paid such claim
in advance or by reimbursement, it shall be required to repay the full
amount to the Department. Such repayment may be made by transfer of
funds from the State's account in the Unemployment Trust Fund to the
Extended Unemployment Compensation Account in the Fund, or by offset
against any current advances or reimbursements to which the State is
otherwise entitled, or the amount repayable may be recovered for the
Extended Unemployment Compensation Account by other means and from any
other sources that may be available to the United States or the
Department.
(e) Compensation under Federal unemployment compensation programs.
The Department shall promptly reimburse each State which has paid
sharable compensation based on service covered by the UCFE and UCX
Programs (parts 609 and 614 of this chapter, respectively) pursuant to 5
U.S.C. chapter 85, an amount which represents the full amount of such
sharable compensation paid under the State law, or may make advances to
the State. Such amounts shall be paid from the Federal Employees
Compensation Account established for those programs, rather than from
the Extended Unemployment Compensation Account.
(f) Combined-wage claims. If an individual was paid benefits under
the Interstate Arrangement for Combining Employment and Wages (part 616
of this chapter) any payment required by paragraph (a) of this section
shall be made to the States which contributed the wage credits.
(g) Interstate claims. Where sharable compensation is paid to an
individual under the provisions of the Interstate Benefit Payment Plan,
any payment required by paragraph (a) of this section shall be made only
to the liable State.
[53 FR 27937, July 25, 1988, as amended at 71 FR 35514, June 21, 2006]
Sec. 615.15 Records and reports.
(a) General. State agencies shall furnish to the Secretary such
information and reports and make such studies as the Secretary decides
are necessary or appropriate for carrying out the purposes of the Act
and this part.
(b) Recordkeeping. Each State agency will make and maintain records
pertaining to the administration of the Extended Benefit Program as the
Department requires, and will make all such records available for
inspection, examination and audit by such Federal officials or employees
as the Secretary or the Department may designate or as may be required
by law.
(c) Weekly report of Extended Benefit data. Each State shall file
with the Department within 10 calendar days after the end of each
calendar week a weekly report entitled ETA 539, Extended Benefit Data.
The report shall include:
(1) The data reported on the form ETA 539 for the week ending
(date). Week-ending dates shall always be the Saturday ending date of
the calendar week beginning at 12:01 a.m. Sunday and ending 12:00 p.m.
Saturday.
(2)(i) The number of continued weeks claimed for regular
compensation in claims filed during the week ending (date). The report
shall include intrastate continued weeks claimed and interstate
continued weeks claimed (taken as agent State) but shall exclude
interstate continued weeks claimed (received as liable State) and
continued weeks claimed for regular
[[Page 98]]
compensation filed solely under 5 U.S.C. chapter 85; and
(ii) The report of the number of continued weeks claimed filed in
the State for regular compensation shall not be adjusted for
seasonality.
(3) The average weekly number of weeks claimed in claims filed in
the most recent calendar week and the immediately preceding 12 calendar
weeks.
(4) The rate of insured unemployment for the current 13-week period.
(5) The average of the rates of insured unemployment in
corresponding 13-week periods in the preceding two years.
(6) The current rate of insured unemployment as a percentage of the
average of the rates in the corresponding 13-week periods in the
preceding two years.
(7) The 12 month average monthly employment covered by the State law
for the first 4 of the last 6 complete calendar quarters ending prior to
the end of the last week of the current 13-week period to which the
insured unemployment data relate. Such covered employment shall exclude
Federal civilian and military employment covered by 5 U.S.C. chapter 85.
(8) The date that a State Extended Benefit Period begins or ends, or
a report that there is no change in the existing Extended Benefit Period
status.
(d) Methodology. The State agency head shall submit to the
Department, for approval, the method used to identify and select the
weeks claimed which are used in the determination of an ``on'' or
``off'' or ``no change'' indicator. Any change proposed in the method of
identification and selection of such weeks claimed constitutes a new
plan which must be submitted to and approved by the Department prior to
implementing the new plan.
(Approved by the Office of Management and Budget under control number
1205-0028)
PART 616_INTERSTATE ARRANGEMENT FOR COMBINING EMPLOYMENT AND WAGES
Sec.
616.1 Purpose of arrangement.
616.2 Consultation with the State agencies.
616.3 Interstate cooperation.
616.4 Rules, regulations, procedures, forms--resolution of
disagreements.
616.6 Definitions.
616.7 Election to file a Combined-Wage Claim.
616.8 Responsibilities of the paying State.
616.9 Responsibilities of transferring States.
616.10 Reuse of employment and wages.
616.11 Amendment of arrangement.
Authority: 26 U.S.C. 3304(a)(9)(B); Secretary's Order No. 3-2007,
Apr. 3, 2007 (72 FR 15907).
Source: 36 FR 24992, Dec. 28, 1971, unless otherwise noted.
Sec. 616.1 Purpose of arrangement.
This arrangement is approved by the Secretary under the provisions
of section 3304(a)(9)(B) of the Federal Unemployment Tax Act to
establish a system whereby an unemployed worker with covered employment
or wages in more than one State may combine all such employment and
wages in one State, in order to qualify for benefits or to receive more
benefits.
Sec. 616.2 Consultation with the State agencies.
As required by section 3304(a)(9)(B), this arrangement has been
developed in consultation with the State unemployment compensation
agencies. For purposes of such consultation in its formulation and any
future amendment the Secretary recognizes, as agents of the State
agencies, the duly designated representatives of the National
Association of State Workforce Agencies (NASWA).
[36 FR 24992, Dec. 28, 1971, as amended at 71 FR 35514, June 21, 2006]
Sec. 616.3 Interstate cooperation.
Each State agency will cooperate with every other State agency by
implementing such rules, regulations, and procedures as may be
prescribed for the operation of this arrangement. Each State agency
shall identify the paying and the transferring State with respect to
Combined-Wage Claims filed in its State.
Sec. 616.4 Rules, regulations, procedures, forms--resolution of
disagreements.
All State agencies shall operate in accordance with such rules,
regulations, and procedures, and shall use
[[Page 99]]
such forms, as shall be prescribed by the Secretary in consultation with
the State unemployment compensation agencies. All rules, regulations,
and standards prescribed by the Secretary with respect to intrastate
claims will apply to claims filed under this arrangement unless they are
clearly inconsistent with the arrangement. The Secretary shall resolve
any disagreement between State agencies concerning the operation of the
arrangement, with the advice of the duly designated representatives of
the State agencies.
Sec. 616.6 Definitions.
These definitions apply for the purpose of this arrangement and the
procedures issued to effectuate it.
(a) State. ``State'' includes the States of the United States of
America, the District of Columbia, the Commonwealth of Puerto Rico, and
the Virgin Islands.
(b) State agency. The agency which administers the unemployment
compensation law of a State.
(c) Combined-Wage Claim. A claim filed under this arrangement.
(d) Combined-Wage Claimant. A claimant who has covered wages under
the unemployment compensation law of more than one State and who has
filed a claim under this arrangement.
(e) Paying State. A single State against which the claimant files a
Combined-Wage Claim, if the claimant has wages and employment in that
State's base period(s) and the claimant qualifies for unemployment
benefits under the unemployment compensation law of that State using
combined wages and employment.
(f) Transferring State. A State in which a Combined-Wage Claimant
had covered employment and wages in the base period of a paying State,
and which transfers such employment and wages to the paying State for
its use in determining the benefit rights of such claimant under its
law.
(g) Employment and wages. ``Employment'' refers to all services
which are covered under the unemployment compensation law of a State,
whether expressed in terms of weeks of work or otherwise. ``Wages''
refers to all remuneration for such employment.
(h) Secretary. The Secretary of Labor of the United States.
(i) Base period and benefit year. The base period and benefit year
applicable under the unemployment compensation law of the paying State.
[36 FR 24992, Dec. 28, 1971, as amended at 39 FR 45215, Dec. 31, 1974;
43 FR 2625, Jan. 17, 1978; 71 FR 35514, June 21, 2006; 73 FR 63072, Oct.
23, 2008]
Sec. 616.7 Election to file a Combined-Wage Claim.
(a) Any unemployed individual who has had employment covered under
the unemployment compensation law of two or more States, whether or not
the individual is monetarily qualified under one or more of them, may
elect to file a Combined-Wage Claim. The individual may not so elect,
however, if the individual has established a benefit year under any
State or Federal unemployment compensation law and:
(1) The benefit year has not ended, and
(2) The individual still has unused benefit rights based on such
benefit year. \1\
---------------------------------------------------------------------------
\1\ The Federal-State Extended Unemployment Compensation Act of
1970, title II, Public Law 91-373, section 202(a)(1), limits the payment
of extended benefits with respect to any week to individuals who have no
rights to regular compensation with respect to such week under any State
unemployment compensation law or to compensation under any other Federal
law and in certain other instances. This provision precludes any
individual from receiving any Federal-State extended benefits with
respect to any week for which the individual is eligible to receive
regular benefits based on a Combined Wage Claim. (See section 5752, part
V of the Employment Security Manual.)
---------------------------------------------------------------------------
(b) For the purposes of this arrangement, a claimant will not be
considered to have unused benefit rights based on a benefit year which
the claimant has established under a State or Federal unemployment
compensation law if:
(1) The claimant has exhausted his/her rights to all benefits based
on such benefit year; or
(2) The claimant's rights to such benefits have been postponed for
an indefinite period or for the entire period in which benefits would
otherwise be payable; or
[[Page 100]]
(3) Benefits are affected by the application of a seasonal
restriction.
(c) If an individual elects to file a Combined-Wage Claim, all
employment and wages in all States in which the individual worked during
the base period of the paying State must be included in such combining,
except employment and wages which are not transferrable under the
provisions of Sec. 616.9(b).
(d) A Combined-Wage Claimant may withdraw his/her Combined-Wage
Claim within the period prescribed by the law of the paying State for
filing an appeal, protest, or request for redetermination (as the case
may be) from the monetary determination of the Combined-Wage Claim,
provided the claimant either:
(1) Repays in full any benefits paid to him thereunder, or
(2) Authorizes the State(s) against which the claimant files a
substitute claim(s) for benefits to withhold and forward to the paying
State a sum sufficient to repay such benefits.
(e) If the Combined-Wage Claimant files his/her claim in a State
other than the paying State, the claimant shall do so pursuant to the
Interstate Benefit Payment Plan.
(f) If a State denies a Combined-Wage Claim, it must inform the
claimant of the option to file in another State in which the claimant
has wages and employment during that State's base period(s).
[36 FR 24992, Dec. 28, 1971, as amended at 71 FR 35514, 35515, June 21,
2006; 73 FR 63072, Oct. 23, 2008]
Sec. 616.8 Responsibilities of the paying State.
(a) Transfer of employment and wages--payment of benefits. The
paying State shall request the transfer of a Combined-Wage Claimant's
employment and wages in all States during its base period, and shall
determine the claimant's entitlement to benefits (including additional
benefits, extended benefits and dependents' allowances when applicable)
under the provisions of its law based on employment and wages in the
paying State, and all such employment and wages transferred to it
hereunder. The paying State shall apply all the provisions of its law to
each determination made hereunder, except that the paying State may not
determine an issue which has previously been adjudicated by a
transferring State. Such exception shall not apply, however, if the
transferring State's determination of the issue resulted in making the
Combined-Wage Claim possible under Sec. 616.7(b)(2). If the paying
State fails to establish a benefit year for the Combined-Wage Claimant,
or if the claimant withdraws his/her claim as provided herein, it shall
return to each transferring State all employment and wages thus unused.
(b) Notices of determination. The paying State shall give to the
claimant a notice of each of its determinations on his/her Combined-Wage
Claim that he/she is required to receive under the Secretary's Claim
Determinations Standard and the contents of such notice shall meet such
Standard. When the claimant is filing his/her Combined-Wage Claims in a
State other than the paying State, the paying State shall send a copy of
each such notice to the local office in which the claimant filed such
claims.
(c) Redeterminations. (1) Redeterminations may be made by the paying
State in accordance with its law based on additional or corrected
information received from any source, including a transferring State,
except that such information shall not be used as a basis for changing
the paying State if benefits have been paid under the Combined-Wage
Claim.
(2) When a determination is made, as provided in paragraph (a) of
this section, which suspends the use of wages earned in employment with
an educational institution during a prescribed period between successive
academic years or terms or other periods as prescribed in the law of the
paying State in accordance with section 3304(a)(6)(A)(i)-(iv) of the
Internal Revenue Code of 1986, the paying State shall furnish each
transferring State involved in the combined-Wage Claim an adjusted
determination used to recompute each State's proportionate share of any
charges that may accumulate for benefits paid during the period of
suspended use of school wages. Wages which are suspended shall be
retained by the paying State for possible future reinstatement to the
Combined-
[[Page 101]]
Wage Claim and shall not be returned to the transferring State.
(d) Appeals. (1) Except as provided in paragraph (d)(3) of this
section, where the claimant files his/her Combined-Wage Claim in the
paying State, any protest, request for redetermination or appeal shall
be in accordance with the law of such State.
(2) Where the claimant files his/her Combined-Wage Claim in a State
other than the paying State, or under the circumstances described in
paragraph (d)(3) of this section, any protest, request for
redetermination or appeal shall be in accordance with the Interstate
Benefit Payment Plan.
(3) To the extent that any protest, request for redetermination or
appeal involves a dispute as to the coverage of the employing unit or
services in a transferring State, or otherwise involves the amount of
employment and wages subject to transfer, the protest, request for
redetermination or appeal shall be decided by the transferring State in
accordance with its law.
(e) Recovery of prior overpayments. If there is an overpayment
outstanding in a transferring State and such transferring State so
requests, the overpayment shall be deducted from any benefits the paying
State would otherwise pay to the claimant on his/her Combined-Wage Claim
except to the extent prohibited by the law of the paying State. The
paying State shall transmit the amount deducted to the transferring
State or credit the deduction against the transferring State's required
reimbursement under this arrangement. This paragraph shall apply to
overpayments only if the transferring State certifies to the paying
State that the determination of overpayment was made within 3 years
before the Combined-Wage Claim was filed and that repayment by the
claimant is legally required and enforceable against him/her under the
law of the transferring State.
(f) Statement of benefit charges. (1) At the close of each calendar
quarter, the paying State shall send each transferring State a statement
of benefits charged during such quarter to such State as to each
Combined-Wage Claimant.
(2) Except as provided in paragraphs (c)(2), (f)(3), and (f)(5) of
this section, each such charge shall bear the same ratio to the total
benefits paid to the Combined-Wage Claimant by the paying State as the
claimant's wages transferred by the transferring State bear to the total
wages used in such determination. Each such ratio shall be computed as a
percentage, to three or more decimal places.
(3) Charges to the transferring State shall not include the costs of
any benefits paid which are funded or reimbursed from the Federal
Unemployment Benefits and Allowances account in the U.S. Department of
Labor appropriation, including:
(i) Benefits paid pursuant to 5 U.S.C. 8501-8525; and
(ii) Benefits which are reimbursable under part B of title II of the
Emergency Jobs and Unemployment Assistance Act of 1974 (Pub. L. 93-567).
(4) Except as provided in paragraphs (f)(3) and (f)(5) of this
section, all transferring States will be charged by the paying State for
Extended Benefits in the same manner as for regular benefits.
(5) The United States shall be charged directly by the paying State,
in the same manner as is provided in paragraphs (f)(1) and (f)(2) of
this section, in regard to Federal civilian service and wages and
Federal military service and wages assigned or transferred to the paying
State and included in Combined-Wage Claims in accordance with this part
and parts 609 and 614 of this chapter.
(26 U.S.C. 3304(a)(9)(B); Secretary's Order No. 4-75, (40 FR 18515))
[36 FR 24992, Dec. 28, 1971, as amended at 43 FR 2625, Jan. 17, 1978; 45
FR 47109, July 11, 1980; 71 FR 35515, June 21, 2006; 73 FR 63072, Oct.
23, 2008]
Sec. 616.9 Responsibilities of transferring States.
(a) Transfer of employment and wages. Each transferring State shall
promptly transfer to the Paying State the employment and wages the
Combined-Wage Claimant had in covered employment during the base period
of the paying State. Any employment and wages so transferred shall be
transferred without restriction as to their use for
[[Page 102]]
determination and benefit payments under the provisions of the paying
State's law.
(b) Employment and wages not transferable. Employment and wages
transferred to the paying State by a transferring State shall not
include:
(1) Any employment and wages which have been transferred to any
other paying State and not returned unused, or which have been used in
the transferring State as the basis of a monetary determination which
established a benefit year.
(2) Any employment and wages which have been canceled or are
otherwise unavailable to the claimant as a result of a determination by
the transferring State made prior to its receipt of the request for
transfer, if such determination has become final or is in the process of
appeal but is still pending. If the appeal is finally decided in favor
of the Combined-Wage Claimant, any employment and wages involved in the
appeal shall forthwith be transferred to the paying State and any
necessary redetermination shall be made by such paying State.
(c) Reimbursement of paying State. Each transferring State shall, as
soon as practicable after receipt of a quarterly statement of charges
described herein, reimburse the paying State accordingly.
(26 U.S.C. 3304(a)(9)(B); Secretary's Order No. 4-75, (40 FR 18515))
[36 FR 24992, Dec. 28, 1971, as amended at 45 FR 47109, July 11, 1980]
Sec. 616.10 Reuse of employment and wages.
Employment and wages which have been used under this arrangement for
a determination of benefits which establishes a benefit year shall not
thereafter be used by any State as the basis for another monetary
determination of benefits.
Sec. 616.11 Amendment of arrangement.
Periodically the Secretary shall review the operation of this
arrangement, and shall propose such amendments to the arrangement as the
Secretary believes are necessary or appropriate. Any State unemployment
compensation agency or NASWA may propose amendments to the arrangement.
Any proposal shall constitute an amendment to the arrangement upon
approval by the Secretary in consultation with the State unemployment
compensation agencies. Any such amendment shall specify when the change
shall take effect, and to which claims it shall apply.
[36 FR 24992, Dec. 28, 1971, as amended at 71 FR 35515, June 21, 2006]
PART 617_TRADE ADJUSTMENT ASSISTANCE FOR WORKERS UNDER THE TRADE ACT OF
1974
Subpart A_General
Sec.
617.1 Scope.
617.2 Purpose.
617.3 Definitions.
617.4 Benefit information to workers.
Subpart B_Trade Readjustment Allowances (TRA)
617.10 Applications for TRA.
617.11 Qualifying requirements for TRA.
617.12 Evidence of qualification.
617.13 Weekly amounts of TRA.
617.14 Maximum amount of TRA.
617.15 Duration of TRA.
617.16 Applicable State law.
617.17 Availability and active search for work.
617.18 Disqualifications.
617.19 Requirement for participation in training.
Subpart C_Reemployment Services
617.20 Responsibilities for the delivery of reemployment services.
617.21 Reemployment services and allowances.
617.22 Approval of training.
617.23 Selection of training methods and programs.
617.24 Preferred training.
617.25 Limitations on training under subpart C of this part.
617.26 Liable and agent State responsibilities.
617.27 Subsistence payments.
617.28 Transportation payments.
617.29 Application of EB work test.
Subpart D_Job Search Allowances
617.30 General.
617.31 Applications.
617.32 Eligibility.
617.33 Findings required.
617.34 Amount.
617.35 Time and method of payment.
[[Page 103]]
Subpart E_Relocation Allowances
617.40 General.
617.41 Applications.
617.42 Eligibility.
617.43 Time of relocation.
617.44 Findings required.
617.45 Amount.
617.46 Travel allowance.
617.47 Moving allowance.
617.48 Time and method of payment.
Subpart F_Job Search Program
617.49 Job Search Program.
Subpart G_Administration by Applicable State Agencies
617.50 Determinations of entitlement; notices to individuals.
617.51 Appeals and hearings.
617.52 Uniform interpretation and application.
617.53 Subpoenas.
617.54 State agency rulemaking.
617.55 Overpayments; penalties for fraud.
617.56 Inviolate rights to TAA.
617.57 Recordkeeping; disclosure of information.
617.58 Unemployment insurance.
617.59 Agreements with State agencies.
617.60 Administration requirements. [Reserved]
617.61 Information, reports, and studies.
617.64 Termination of TAA program benefits.
Appendix A to Part 617--Standard for Claim Filing, Claimant Reporting,
Job Finding, and Employment Services
Appendix B to Part 617--Standard for Claim Determinations--Separation
Information
Appendix C to Part 617--Standard for Fraud and Overpayment Detection
Authority: 19 U.S.C. 2320; Secretary's Order No. 3-81, 46 FR 31117.
Source: 51 FR 45848, Dec. 22, 1986, unless otherwise noted.
Subpart A_General
Sec. 617.1 Scope.
The regulations in this part 617 pertain to:
(a) Adjustment assistance, such as counseling, testing, training,
placement, and other supportive services for workers adversely affected
under the terms of chapter 2 of title II of the Trade Act of 1974, as
amended (hereafter referred to as the Act);
(b) Trade readjustment allowances (hereafter referred to as TRA) and
other allowances such as allowances while in training, job search and
relocation allowances; and
(c) Administrative requirements applicable to State agencies to
which such individuals may apply.
Sec. 617.2 Purpose.
The Act created a program of trade adjustment assistance (hereafter
referred to as TAA) to assist individuals, who became unemployed as a
result of increased imports, return to suitable employment. The TAA
program provides for reemployment services and allowances for eligible
individuals. The regulations in this part 617 are issued to implement
the Act.
Sec. 617.3 Definitions.
For the purposes of the Act and this part 617:
(a) Act means chapter 2 of title II of the Trade Act of 1974, Pub.
L. 93-618, 88 Stat. 1978, 2019-2030 (19 U.S.C. 2271-2322), as amended.
(b) Adversely affected employment means employment in a firm or
appropriate subdivision of a firm, including workers in any agricultural
firm or subdivision of an agricultural firm, if workers of such firm or
appropriate subdivision are certified under the Act as eligible to apply
for TAA.
(c) Adversely affected worker means an individual who, because of
lack of work in adversely affected employment:
(1) Has been totally or partially separated from such employment; or
(2) Has been totally separated from employment with the firm in a
subdivision of which such adversely affected employment exists.
(d) Appropriate week means the week in which the individual's first
separation occurred.
(e) Average weekly hours means a figure obtained by dividing:
(1) Total hours worked (excluding overtime) by a partially separated
individual in adversely affected employment in the 52 weeks (excluding
weeks in such period during which the individual was sick or on
vacation) preceding the individual's first qualifying separation, by
(2) The number of weeks in such 52 weeks (excluding weeks in such
period during which the individual was sick or
[[Page 104]]
on vacation) in which the individual actually worked in such employment.
(f) Average weekly wage means one-thirteenth of the total wages paid
to an individual in the individual's high quarter. The high quarter for
an individual is the quarter in which the total wages paid to the
individual were highest among the first four of the last five completed
calendar quarters preceding the individual's appropriate week.
(g) Average weekly wage in adversely affected employment means a
figure obtained by dividing:
(1) Total wages earned by a partially separated individual in
adversely affected employment in the 52 weeks (excluding the weeks in
that period the individual was sick or on vacation) preceding the
individual's first qualifying separation, by
(2) The number of weeks in such 52 weeks (excluding the weeks in
that period the individual was sick or on vacation) the individual
actually worked in such employment.
(h) Benefit period means, with respect to an individual:
(1) The benefit year and any ensuing period, as determined under the
applicable State law, during which the individual is eligible for
regular compensation, additional compensation, extended compensation, or
federal supplemental compensation, as these terms are defined by
paragraph (oo) of this section; or
(2) The equivalent to such a benefit year or ensuing period provided
for under the Federal unemployment insurance law.
(i) Bona fide application for training means an individual's signed
and dated application for training filed with the State agency
administering the TAA training program, on a form necessarily containing
the individual's name, petition number, local office number, and
specific occupational training. This form shall be signed and dated by a
State agency representative upon receipt.
(j)(1) Certification means a certification of eligibility to apply
for TAA issued under section 223 of the Act with respect to a specified
group of workers of a firm or appropriate subdivision of a firm.
(2) Certification period means the period of time during which total
and partial separations from adversely affected employment within a firm
or appropriate subdivision of a firm are covered by the certification.
(k) Commuting area means the area in which an individual would be
expected to travel to and from work on a daily basis as determined under
the applicable State law.
(l) Date of separation means:
(1) With respect to a total separation--
(i) For an individual in employment status, the last day worked; and
(ii) For an individual on employer-authorized leave, the last day
the individual would have worked had the individual been working; and
(2) With respect to a partial separation, the last day of the week
in which the partial separation occurred.
(m) Eligibility period means the period of consecutive calendar
weeks during which basic or additional TRA is payable to an otherwise
eligible individual, and for an individual such eligibility period is--
(1) Basic TRA. With respect to a total qualifying separation (as
defined in paragraph (t)(3)(i) of this section) the 104-week period
beginning with the first week following the week in which such total
qualifying separation occurred; provided, that an individual who has a
second or subsequent total qualifying separation within the
certification period of the same certification shall be determined to
have a new 104-week eligibility period based upon the most recent such
total qualifying separation.
(2) Additional TRA. With respect to additional weeks of TRA, and any
individual determined under this part 617 to be entitled to additional
TRA, the consecutive calendar weeks that occur in the 26-week period
that--
(i) Immediately follows the last week of entitlement to basic TRA
otherwise payable to the individual, or
(ii) Begins with the first week of training approved under this part
617, if such training begins after the last week described in paragraph
(m)(2)(i) of this section, or
(iii) Begins with the first week in which such training is approved
under
[[Page 105]]
this part 617, if such training is so approved after the training has
commenced; but approval of training under this part 617 after the
training has commenced shall not imply or justify approval of a payment
of basic or additional TRA with respect to any week which ended before
the week in which such training was approved, nor approval of payment of
any costs of training or any costs or expenses associated with such
training (such as travel or subsistence) which were incurred prior to
the date of the approval of such training under this part 617.
(n) Employer means any individual or type of organization, including
the Federal government, a State government, a political subdivision, or
an instrumentality of one or more governmental entities, with one or
more individuals performing service in employment for it within the
United States.
(o) Employment means any service performed for an employer by an
officer of a corporation or an individual for wages.
(p) Exhaustion of UI means exhaustion of all rights to UI in a
benefit period by reason of:
(1) Having received all UI to which an individual was entitled under
the applicable State law or Federal unemployment compensation law with
respect to such benefit period; or
(2) The expiration of such benefit period.
(q) Family means the following members of an individual's household
whose principal place of abode is with the individual in a home the
individual maintains or would maintain but for unemployment:
(1) A spouse;
(2) An unmarried child, including a stepchild, adopted child, or
foster child, under age 21 or of any age if incapable of self-support
because of mental or physical incapacity; and
(3) Any other person whom the individual would be entitled to claim
as a dependent for income tax purposes under the Internal Revenue Code
of 1986.
(r) First benefit period means the benefit period established after
the individual's first qualifying separation or in which such separation
occurs.
(s) First exhaustion of UI means the first time in an individual's
first benefit period that the individual exhausts all rights to UI;
first exhaustion shall be deemed to be complete at the end of the week
the exhaustion occurs.
(t)(1) First separation means, for an individual to qualify as an
adversely affected worker for the purposes of TAA program benefits
(without regard to whether the individual also qualifies for TRA), the
individual's first total or partial separation within the certification
period of a certification, irrespective of whether such first separation
also is a qualifying separation as defined in paragraph (t)(2) of this
section;
(2) Qualifying separation means for an individual to qualify as an
adversely affected worker and for basic TRA, any total separation of the
individual within the certification period of a certification with
respect to which the individual meets all of the requirements in Sec.
617.11(a)(2)(i) through (iv), and which qualifies as a total qualifying
separation as defined in paragraph (B) of (t)(3)(i) of this section.
(3) First qualifying separation means--
(i) For the purposes of determining an individual's eligibility
period for basic TRA, the first total separation of the individual
within the certification period of a certification, with respect to
which the individual meets all of the requirements in Sec.
617.11(a)(2)(i) through (iv).
(ii) For the purposes of determining the weekly and maximum amounts
of basic TRA payable to an individual, with respect to a separation that
occurs before, on, or after August 23, 1988, the individual's first
(total or partial) separation within the certification period of a
certification if, with respect to such separation, the individual meets
the requirements of Sec. 617.11(a)(1) (i), (ii) and (iv) or Sec.
617.11(a)(2) (i), (ii) and (iv).
(u) Head of family means an individual who maintains a home for a
family. An individual maintains a home if over half the cost of
maintenance is furnished by the individual or would be furnished but for
unemployment.
(v) Impact date means the date stated in a certification issued
under the Act
[[Page 106]]
on which total or partial separations began or threatened to begin in a
firm or a subdivision of a firm.
(w) Job search program means a job search workshop or job finding
club.
(x) Job search workshop means a short (1 to 3 days) seminar designed
to provide participants with knowledge that will enable the participants
to find jobs. Subjects should include, but not be limited to, labor
market information, resume writing, interviewing techniques, and
techniques for finding job openings.
(y) Job finding club means a job search workshop which includes a
period of 1 to 2 weeks of structured, supervised activity in which
participants attempt to obtain jobs.
(z) Layoff means a suspension of or separation from employment by a
firm for lack of work, initiated by the employer, and expected to be for
a definite or indefinite period of not less than seven consecutive days.
(aa) Liable State and Agent State are defined as follows:
(1) Liable State means, with respect to any individual, the State
whose State law is the applicable State law as determined under Sec.
617.16 for all purposes of this Part 617.
(2) Agent State means, with respect to any individual, any State
other than the State which is the liable State for such individual.
(bb) On-the-job training means training provided by an employer to
an individual who is employed by the employer.
(cc) Partial separation means that during a week ending on or after
the impact date specified in the certification under which an adversely
affected worker is covered, the individual had:
(1) Hours of work reduced to 80 percent or less of the individual's
average weekly hours in adversely affected employment; and
(2) Wages reduced to 80 percent or less of the individual's average
weekly wage in such adversely affected employment.
(dd) Regional Administrator means the appropriate Regional
Administrator of the Employment and Training Administration, United
States Department of Labor (hereafter Department).
(ee) Remuneration means remuneration as defined in the applicable
State law.
(ff) Secretary means the Secretary of Labor, U.S. Department of
Labor, or his or her designee.
(gg) Separate maintenance means maintaining another (second)
residence, in addition to the individual's regular place of residence,
while attending a training facility outside the individual's commuting
area.
(hh) State means the States of the United States, the District of
Columbia, and the Commonwealth of Puerto Rico, and the term ``United
States'' when used in a geographical sense includes such Commonwealth.
(ii) State agency means the State Workforce Agency; the employment
service of the State; any State agency carrying out title I, Subchapter
B of the Workforce Investment Act; or any other State or local agency
administering job training or related programs with which the Secretary
has an agreement to carry out any of the provisions of the Act.
(jj) State law means the unemployment compensation law of a State
approved by the Secretary under section 3304 of the Internal Revenue
Code of 1986 (26 U.S.C. 3304).
(kk) Suitable work means, with respect to an individual:
(1) Suitable work as defined in the applicable State law for
claimants for regular compensation (as defined in paragraph (oo)(1) of
this section); or
(2) Suitable work as defined in applicable State law provisions
consistent with section 202(a)(3) of the Federal-State Extended
Unemployment Compensation Act of 1970;
whichever is applicable, but does not in any case include self-
employment or employment as an independent contractor.
(ll) Total separation means a layoff or severance of an individual
from employment with a firm in which, or in a subdivision of which,
adversely affected employment exists.
[[Page 107]]
(mm) Trade adjustment assistance (TAA) means the services and
allowances provided for achieving reemployment of adversely affected
workers, including TRA, training and other reemployment services, and
job search allowances and relocation allowances.
(nn) Trade readjustment allowance (TRA) means a weekly allowance
payable to an adversely affected worker with respect to such worker's
unemployment under subpart B of this part 617.
(oo) Unemployment insurance (UI) means the unemployment compensation
payable to an individual under any State law or Federal unemployment
compensation law, including chapter 85, title 5 of the United States
Code, and the Railroad Unemployment Insurance Act. ``UI'' includes
``regular compensation,'' ``additional compensation,'' ``extended
compensation,'' and ``federal supplemental compensation,'' defined as
follows:
(1) Regular compensation means unemployment compensation payable to
an individual under any State law, and, when so payable, includes
unemployment compensation payable pursuant to chapter 85, title 5 of the
United States Code, but does not include extended compensation,
additional compensation, or federal supplemental compensation;
(2) Additional compensation means unemployment compensation totally
financed by a State and payable under a State law by reason of
conditions of high unemployment or by reason of other special factors
and, when so payable, includes unemployment compensation payable
pursuant to chapter 85, title 5 of the United States Code; and
(3) Extended compensation means the extended unemployment
compensation payable to an individual for weeks of unemployment which
begin in an Extended Benefit Period, under those provisions of a State
law which satisfy the requirements of the Federal-State Extended
Unemployment Compensation Act of 1970 and regulations governing the
payment of extended unemployment compensation, and, when so payable,
includes unemployment compensation payable pursuant to chapter 85, title
5 of the United States Code, but does not include regular compensation,
additional compensation, or federal supplemental compensation. Extended
compensation is also referred to in this part 617 as Extended Benefits
or EB.
(4) Federal supplemental compensation means the supplemental
unemployment compensation payable to individuals who have exhausted
their rights to regular and extended compensation, and which is payable
under the Federal Supplemental Compensation Act of 1982 or any similar
Federal law enacted before or after the 1982 Act.
(pp) Wages means all compensation for employment for an employer,
including commissions, bonuses, and the cash value of all compensation
in a medium other than cash.
(qq) Week means a week as defined in the applicable State law.
(rr) Week of unemployment means a week of total, part total, or
partial unemployment as determined under the applicable State law or
Federal unemployment compensation law.
[51 FR 45848, Dec. 22, 1986, as amended at 53 FR 32348, Aug. 24, 1988;
59 FR 926, 927, Jan. 6, 1994; 61 FR 19983, May 3, 1996; 71 FR 35515,
June 21, 2006]
Sec. 617.4 Benefit information to workers.
(a) Providing information to workers. State agencies shall provide
full information to workers about the benefit allowances, training, and
other employment services available under subparts B through E of this
part 617 and about the petition and application procedures, and the
appropriate filing dates, for such allowances, training and services.
(b) Providing assistance to workers. State agencies shall provide
whatever assistance is necessary to enable groups of workers, including
unorganized workers, to prepare petitions or applications for program
benefits.
(c) Providing information to State vocational education agencies and
others. State agencies shall inform the State Board for Vocational
Education or equivalent agency and other public or private agencies,
institutions, and employers, as appropriate, of each certification
issued under section 223 of the Act and of projections, if available, of
the needs for training under section 236
[[Page 108]]
of the Act as a result of such certification.
(d) Written and newspaper notices--(1) Written notices to workers.
(i) Upon receipt of a certification issued by the Department of Labor,
the State agency shall provide a written notice through the mail of the
benefits available under subparts B through E of this part 617 to each
worker covered by a certification issued under section 223 of the Act
when the worker is partially or totally separated or as soon as possible
after the certification is issued if such workers are already partially
or totally separated from adversely affected employment.
(ii) The State agency will satisfy this requirement by obtaining
from the firm, or other reliable source, the names and addresses of all
workers who were partially or totally separated from adversely affected
employment before the certification was received by the agency, and
workers who are thereafter partially or totally separated within the
certification period. The State agency shall mail a written notice to
each such worker of the benefits available under the TAA Program. The
notice must include the following information:
(A) Worker group(s) covered by the certification, and the article(s)
produced as specified in the copy of the certification furnished to the
State agency.
(B) Name and the address or location of workers' firm.
(C) Impact, certification, and expiration dates in the certification
document.
(D) Benefits and reemployment services available to eligible
workers.
(E) Explanation of how workers apply for TAA benefits and services.
(F) Whom to call to get additional information on the certification.
(G) When and where the workers should come to apply for benefits and
services.
(2) Newspaper notices. (i) Upon receipt of a copy of a certification
issued by the Department affecting workers in a State, the State agency
shall publish a notice of such certification in a newspaper of general
circulation in areas in which such workers reside. Such a newspaper
notice shall not be required to be published, however, in the case of a
certification with respect to which the State agency can substantiate,
and enters in its records evidence substantiating, that all workers
covered by the certification have received written notice required by
paragraph (d)(1) of this section.
(ii) A published notice must include the following kinds of
information:
(A) Worker group(s) covered by the certification, and the article(s)
produced as specified in the copy of the certification furnished to the
State agency.
(B) Name and the address or location of workers' firm.
(C) Impact, certification, and expiration dates in the certification
document.
(D) Benefits and reemployment services available to eligible
workers.
(E) Explanation of how and where workers should apply for TAA
benefits and services.
(e) Advice and assistance to workers. In addition to the information
and assistance to workers as required under paragraphs (a) and (b) of
this section, State agencies shall--
(1) Advise each worker who applies for unemployment insurance under
the State law of the benefits available under subparts B through E of
this part and the procedures and deadlines for applying for such
benefits.
(2) Facilitate the early filing of petitions under section 221 of
the Act and Sec. 617.4(b) for any workers that the agency considers are
likely to be eligible for benefits. State agencies shall utilize
information received by the State's dislocated worker unit to facilitate
the early filing of petitions under section 221 of the Act by workers
potentially adversely affected by imports.
(3) Advise each adversely affected worker to apply for training
under Sec. 617.22(a) before, or at the same time as, the worker applies
for trade readjustment allowances under subpart B of this part.
(4) Interview each adversely affected worker, as soon as
practicable, regarding suitable training opportunities available to the
worker under Sec. 617.22(a)
[[Page 109]]
and review such opportunities with the worker.
[51 FR 45848, Dec. 22, 1986, as amended at 59 FR 927, Jan. 6, 1994]
Subpart B_Trade Readjustment Allowances (TRA)
Sec. 617.10 Applications for TRA.
(a) Before and after certification. An individual covered under a
certification or a petition for certification may apply to a State
agency for TRA. A determination shall be made at any time to the extent
necessary to establish or protect an individual's entitlement to TRA or
other TAA, but no payment of TRA or other TAA may be made by a State
agency until a certification is made and the State agency determines
that the individual is covered thereunder.
(b) Timing of applications. An initial application for TRA, and
applications for TRA for weeks of unemployment beginning before the
initial application for TRA is filed, may be filed within a reasonable
period of time after publication of the determination certifying the
appropriate group of workers under section 223 of the Act. However, an
application for TRA for a week of unemployment beginning after the
initial application is filed shall be filed within the time limit
applicable to claims for regular compensation under the applicable State
law. For purposes of this paragraph (b), a reasonable period of time
means such period of time as the individual had good cause for not
filing earlier, which shall include, but not be limited to, the
individual's lack of knowledge of the certification or misinformation
supplied the individual by the State agency.
(c) Applicable procedures. Applications shall be filed in accordance
with this subpart B and on forms which shall be furnished to individuals
by the State agency. The procedures for reporting and filing
applications for TRA shall be consistent with this part 617 and the
Secretary's ``Standard for Claim Filing, Claimant Reporting, Job Finding
and Employment Services'', Employment Security Manual, part V, sections
5000 et seq. (Appendix A of this part).
(d) Advising workers to apply for training. State agencies shall
advise each worker of the qualifying requirements for entitlement to TRA
and other TAA benefits at the time the worker files an initial claim for
State UI, and shall advise each adversely affected worker to apply for
training under subpart C of this part before, or at the same time, the
worker applies for TRA, as required by Sec. 617.4(e)(1) and (3).
[51 FR 45848, Dec. 22, 1986, as amended at 59 FR 928, 943, Jan. 6, 1994]
Sec. 617.11 Qualifying requirements for TRA.
(a) Basic qualifying requirements for entitlement--(1) [Reserved]
(2) To qualify for TRA for any week of unemployment an individual
must meet each of the following requirements of paragraphs (a)(2) (i)
through (vii) of this section:
(i) Certification. The individual must be an adversely affected
worker covered under a certification.
(ii) Separation. The individual's first qualifying separation (as
defined in paragraph (t)(3)(i) of Sec. 617.3) before application for
TRA must occur:
(A) On or after the impact date of such certification; and
(B) Before the expiration of the two-year period beginning on the
date of such certification, or, if earlier, before the termination date,
if any, of such certification.
(iii) Wages and employment. (A) In the 52-week period (i.e., 52
consecutive calendar weeks) ending with the week of the individual's
first qualifying separation, or any subsequent total qualifying
separation under the same certification, the individual must have had at
least 26 weeks of employment at wages of $30 or more a week in adversely
affected employment with a single firm or subdivision of a firm.
Evidence that an individual meets this requirement shall be obtained as
provided in Sec. 617.12. Employment and wages covered under more than
one certification may not be combined to qualify for TRA.
(B)(1) For the purposes of paragraph (a)(2)(iii) of this section,
any week in which such individual--
[[Page 110]]
(i) Is on employer-authorized leave from such adversely affected
employment for purposes of vacation, sickness, injury, maternity, or
inactive duty or active duty military service for training, or
(ii) Does not work in such adversely affected employment because of
a disability compensable under a workers' compensation law or plan of a
State or the United States, or
(iii) Had adversely affected employment interrupted to serve as a
full-time representative of a labor organization in such firm or
subdivision, or
(iv) Is on call-up for the purpose of active duty in a reserve
status in the Armed Forces of the United States (if such week began
after August 1, 1990), provided such active duty is ``Federal service''
as defined in part 614 of this chapter,
shall be treated as a week of employment at wages of $30 or more;
(2) Provided, that--
(i) Not more than 7 weeks in the case of weeks described in
paragraph (a)(2)(iii)(B)(1) (i) or (iii) of this section, or both, and
(ii) Not more than 26 weeks described in paragraph (a)(2)(iii)(B)(1)
(ii) or (iv) of this section,
may be treated as weeks of employment for purposes of paragraph
(a)(2)(iii) of this section.
(C) Wages and employment creditable under paragraph (a)(2)(iii) of
this section shall not include employment or wages earned or paid for
employment which is contrary to or prohibited by any Federal law.
(iv) Entitlement to UI. The individual must have been entitled to
(or would have been entitled to if the individual had applied therefor)
UI for a week within the benefit period--
(A) in which the individual's first qualifying separation occurred,
or
(B) which began (or would have begun) by reason of the filing of a
claim for UI by the individual after such first qualifying separation.
(v) Exhaustion of UI. The individual must:
(A) Have exhausted all rights to any UI to which the individual was
entitled (or would have been entitled if the individual had applied
therefor); and
(B) Not have an unexpired waiting period applicable to the
individual for any such UI.
(vi) Extended Benefit work test. (A) The individual must--
(1) Accept any offer of suitable work, as defined in Sec.
617.3(kk), and actually apply for any suitable work the individual is
referred to by the State agency, and
(2) Actively engage in seeking work and furnish the State agency
tangible evidence of such efforts each week, and
(3) Register for work and be referred by the State agency to
suitable work,
in accordance with those provisions of the applicable State law which
apply to claimants for Extended Benefits and which are consistent with
part 615 of this chapter.
(B) The Extended Benefit work test shall not apply to an individual
with respect to claims for TRA for weeks of unemployment beginning prior
to the filing of an initial claim for TRA, nor for any week which begins
before the individual is notified that the individual is covered by a
certification issued under the Act and is fully informed of the Extended
Benefit work test requirements of paragraph (a)(2)(vi) of this section
and Sec. 617.17. Prior to such notification and advice, the individual
shall not be subject to the Extended Benefit work test requirements, nor
to any State timely filing requirement, but shall be required to be
unemployed and able to work and available for work with respect to any
such week except as provided in Sec. 617.17(b)(2) for workers enrolled
in, or participating in, a training program approved under Sec.
617.22(a).
(vii) Participation in training. (A) The individual must--
(1) Be enrolled in or participating in a training program approved
pursuant to Sec. 617.22(a), or
(2) Have completed a training program approved under Sec.
617.22(a), after a total or partial separation from adversely affected
employment within the certification period of a certification issued
under the Act, or
(3) Have received from the State agency a written statement under
Sec. 617.19 waiving the participation in training requirement for the
individual.
[[Page 111]]
(B) The participation in training requirement of paragraph
(a)(2)(vii) of this section shall not apply to an individual with
respect to claims for TRA for weeks of unemployment beginning prior to
the filing of an initial claim for TRA, nor for any week which begins
before the individual is notified that the individual is covered by a
certification issued under the Act and is fully informed of the
participation in training requirement of paragraph (a)(2)(vii) of this
section and Sec. 617.19.
(C) The participation in training requirement of paragraph
(a)(2)(vii) of this section shall apply, as a qualifying requirement for
TRA, to an individual with respect to claims for TRA for weeks of
unemployment commencing on or after November 21, 1988, and beginning
with the first week following the week in which a certification covering
the individual is issued under the Act, unless the State agency has
issued a written statement to the individual under Sec. 617.19 waiving
the participation in training requirement for the individual.
(D) For purposes of paragraph (a)(2)(vii) of this section, the
following definitions shall apply:
(1) Enrolled in training. A worker shall be considered to be
enrolled in training when the worker's application for training is
approved by the State agency and the training institution has furnished
written notice to the State agency that the worker has been accepted in
the approved training program which is to begin within 30 calendar days
of the date of such approval. (A waiver under Sec. 617.19 shall not be
required for an individual who is enrolled in training as defined
herein.)
(2) Completed training. A worker shall be considered to have
completed a training program if the training program was approved, or
was approvable and is approved, pursuant to Sec. 617.22, and the
training was completed subsequent to the individual's total or partial
separation from adversely affected employment within the certification
period of a certification issued under the Act, and the training
provider has certified that all the conditions for completion of the
training program have been satisfied.
(3)-(4) [Reserved]
(b) First week of entitlement. The first week any individual may be
entitled to a payment of basic TRA shall be the later of:
(1) The first week beginning more than 60 days after the date of the
filing of the petition which resulted in the certification under which
the individual is covered; or
(2) The first week beginning after the individual's exhaustion of
all rights to UI including waiting period credit, as determined under
Sec. 617.11(a)(2).
[59 FR 928, Jan. 6, 1994, as amended at 71 FR 35515, June 21, 2006]
Sec. 617.12 Evidence of qualification.
(a) State agency action. When an individual applies for TRA, the
State agency having jurisdiction under Sec. 617.50(a) shall obtain
information necessary to establish:
(1) Whether the individual meets the qualifying requirements in
Sec. 617.11;
(2) The individual's average weekly wage; and
(3) For an individual claiming to be partially separated, the
average weekly hours and average weekly wage in adversely affected
employment.
(b) Insufficient data. If information specified in paragraph (a) of
this section is not available from State agency records or from any
employer, the State agency shall require the individual to submit a
signed statement setting forth such information as may be required for
the State agency to make the determinations required by paragraph (a) of
this section.
(c) Verification. A statement made under paragraph (b) of this
section shall be certified by the individual to be true to the best of
the individual's knowledge and belief and shall be supported by evidence
such as Forms W-2, paycheck stubs, union records, income tax returns, or
statements of fellow workers, and shall be verified by the employer.
(d) Determinations. The State agency shall make the necessary
determinations on the basis of information obtained pursuant to this
section, except that if, after reviewing information obtained under
paragraph (b) of this section against other available data, including
agency records, it concludes
[[Page 112]]
that such information is not reasonably accurate, it shall make
appropriate adjustments and shall make the determination on the basis of
the adjusted data.
Sec. 617.13 Weekly amounts of TRA.
(a) Regular allowance. The amount of TRA payable for a week of total
unemployment (including a week of training approved under subpart C of
this part 617 or under the provisions of the applicabIe State law) shall
be an amount equal to the most recent weekly benefit amount of UI
(including dependents' allowances) payable to the individual for a week
of total unemployment preceding the individual's first exhaustion of UI
following the individual's first qualifying separation: Provided, that
in a State in which weeks of UI are paid in varying amounts related to
wages with separate employers, the weekly amount of TRA shall be
calculated as it would be to pay extended compensation: Provided,
further, that where a State calculates a base amount of UI and
calculates dependents' allowances on a weekly supplemental basis. TRA
weekly benefit amounts shall be calculated in the same manner and under
the same terms and conditions as apply to claimants for UI, except that
the base amount shall not change.
(b) Increased allowance. An individual in training approved under
subpart C of this part 617 who is thereby entitled for any week to TRA
and a training allowance under any other Federal law for the training of
workers shall be paid in the amount computed under paragraph (a) of this
section or, if greater, the amount to which the individual would be
entitled under such other Federal law if the individual applied for such
allowance, as provided in section 232(b) of the Act. A payment under
this paragraph (b) shall be in lieu of any training allowance to which
the individual is entitled under such other Federal law.
(c) Reduction of amount. An amount of TRA payabIe under paragraph
(a) or (b) of this section for any week shall be reduced (but not below
zero) by:
(1) Income that is deductible from UI under the disqualifying income
provisions of the applicable State law or Federal unemployment
compensation law;
(2) The amount of a training allowance (other than a training
allowance referred to in paragraph (b) of this section) under any
Federal law that the individual receives for such week, as provided in
section 232(c) of the Act. This paragraph (c) shall apply to Veterans
Educational Assistance, Pell Grants, Supplemental Educational
Opportunity Grants, and other training allowances under any Federal law
other than for the training of workers; and
(3) Any amount that would be deductible from UI for days of absence
from training under the provisions of the applicable State law which
apply to individuals in approved training.
[51 FR 45848, Dec. 22, 1986, as amended at 53 FR 32349, Aug. 24, 1988]
Sec. 617.14 Maximum amount of TRA.
(a) General rule. Except as provided under paragraph (b) of this
section, the maximum amount of TRA payable to an individual under a
certification shall be the amount determined by:
(1) Multiplying by 52 the weekly amount of TRA payable to such
individual for a week of total unemployment, as determined under Sec.
617.13(a); and
(2) Subtracting from the product derived under paragraph (a)(1) of
this section, the total sum of UI to which the individual was entitled
(or would have been entitled if the individual had applied therefor) in
the individual's first benefit period described in Sec.
617.11(a)(1)(iv) or, as appropriate, Sec. 617.11(a)(2)(iv). The
individual's full entitlement shall be subtracted under this paragraph,
without regard to the amount, if any, that was actually paid to the
individual with respect to such benefit period.
(b) Exceptions. The maximum amount of TRA determined under paragraph
(a) of this section will not include:
(1) The amount of dependents' allowances paid as a supplement to the
base weekly amount determined under Sec. 617.13(a);
(2) The amount of the difference between the individual's weekly
increased allowances determined under Sec. 617.13(b) and the
individual's weekly
[[Page 113]]
amount determined under Sec. 617.13(a); and
(3) The amounts paid for additional weeks determined under Sec.
617.15(b);
but nothing in this paragraph (b) shall affect an individual's
eligibility for such supplemental, increased or additional allowances.
(c) Reduction for Federal training allowance. (1) If a training
allowance referred to in Sec. 617.13(c)(2) is paid to an individual for
any week of unemployment with respect to which the individual would be
entitled (determined without regard to any disqualification under Sec.
617.18(b)(2)) to TRA, if the individual applied for TRA for such week,
each week shall be deducted from the total number of weeks of TRA
otherwise payable to the individual.
(2) If the training allowance referred to in paragraph (c)(1) of
this section is less than the amount of TRA otherwise payable to the
individual for such week, the individual shall, when the individual
applies for TRA for such week, be paid TRA in an amount not to exceed
the amount equal to the difference between the individual's regular
weekly TRA amount, as determined under Sec. 617.13(a), and the amount
of the training allowance paid to the individual for such week, as
provided in section 232(c) of the Act.
[51 FR 45848, Dec. 22, 1986, as amended at 53 FR 32349, Aug. 24, 1988;
54 FR 22277, May 23, 1989; 59 FR 931, Jan. 6, 1994]
Sec. 617.15 Duration of TRA.
(a) Basic weeks. An individual shall not be paid basic TRA for any
week beginning after the close of the 104-week eligibility period (as
defined in Sec. 617.3(m)(1)), which is applicable to the individual as
determined under Sec. Sec. 617.3 (m)(1), 617.3(t), and 617.67(e).
(b) Additional weeks. (1) To assist an individual to complete
training approved under subpart C of this part, payments may be made as
TRA for up to 26 additional weeks in the 26-week eligibility period (as
defined in Sec. 617.3(m)(2)) which is applicable to the individual as
determined under Sec. Sec. 617.3(m)(2) and 617.67(f).
(2) To be eligible for TRA for additional weeks, an individual must
make a bona fide application for such training--
(i) within 210 days after the date of the first certification under
which the individual is covered, or
(ii) if later, within 210 days after the date of the individual's
most recent partial or total separation (as defined in Sec. Sec.
617.3(cc) and 617.3(ll)) under such certification.
(3) Except as provided in paragraph (d) of this section, payments of
TRA for additional weeks may be made only for those weeks in the 26-week
eligibility period during which the individual is actually participating
fully in training approved under Sec. 617.22(a).
(c) Limit. The maximum TRA payable to any individual on the basis of
a single certification is limited to the maximum amount of basic TRA as
determined under Sec. 617.14 plus additional TRA for up to 26 weeks as
provided in paragraph (b) of this section.
(d) Scheduled breaks in training. (1) An individual who is otherwise
eligible will continue to be eligible for basic and additional weeks of
TRA during scheduled breaks in training, but only if a scheduled break
is not longer than 14 days, and the following additional conditions are
met:
(i) The individual was participating in the training approved under
Sec. 617.22(a) immediately before the beginning of the break; and
(ii) The break is provided for in the published schedule or the
previously established schedule of training issued by the training
provider or is indicated in the training program approved for the
worker; and, further
(iii) The individual resumes participation in the training
immediately after the break ends.
(2) A scheduled break in training shall include all periods within
or between courses, terms, quarters, semesters and academic years of the
approved training program.
(3) No basic or additional TRA will be paid to an individual for any
week which begins and ends within a scheduled break that is 15 days or
more.
(4) The days within a break in a training program that shall be
counted in determining the number of days of the break for the purposes
of paragraph (d) of this section shall include all calendar days
beginning with the first day of the break and ending with the last
[[Page 114]]
day of the break, as provided for in the schedule of the training
provider, except that any Saturday, Sunday, or official State or
National holiday occurring during the scheduled break in training, on
which training would not normally be scheduled in the training program
if there were no break in training, shall not be counted in determining
the number of days of the break for the purposes of paragraph (d) of
this section.
(5) When the worker is drawing basic TRA, the maximum amount of TRA
payable is not affected by the weeks the worker does not receive TRA
while in a break period, but the weeks will count against the 104-week
eligibility period.
(6) When the worker is drawing additional weeks of TRA to complete
training, any weeks for which TRA is not paid will count against the
continuous 26-week eligibility period and the number of weeks payable.
[59 FR 931, Jan. 6, 1994]
Sec. 617.16 Applicable State law.
(a) What law governs. The applicable State law for any individual,
for all of the purposes of this part 617, is the State law of the
State--
(1) In which the individual is entitled to UI (whether or not the
individual has filed a claim therefor) immediately following the
individual's first separation (as defined in paragraph (t)(1) of Sec.
617.3), or
(2) If the individual is not so entitled to UI under the State law
of any State immediately following such first separation, or is entitled
to UI under the Railroad Unemployment Insurance Act (RRUI), the State
law of the State in which such first separation occurred.
(b) Change of law. The State law determined under paragraph (a) of
this section to be the applicable State law for an individual shall
remain the applicable State law for the individual until the individual
becomes entitled to UI under the State law of another State (whether or
not the individual files a claim therefor).
(c) UI entitlement. (1) An individual shall be deemed to be entitled
to UI under a State law if the individual satisfies the base period
employment and wage qualifying requirements of such State law.
(2) In the case of a combined-wage claim (Part 616 of this chapter),
UI entitlement shall be determined under the law of the paying State.
(3) In case of a Federal UI claim, or a joint State and Federal UI
claim (Parts 609 and 614 of this Chapter), UI entitlement shall be
determined under the law of the State which is the applicable State for
such claims.
(d) RRUI claimants. If an individual is entitled to UI under the
Railroad Unemployment Insurance Act, the applicable State law for
purposes of paragraphs (a) and (b) of this section is the law of the
State in which the individual's first qualifying separation occurs.
(e) Liable State. The State whose State law is determined under this
section to be the applicable State law for any individual shall be the
liable State for the individual for all purposes of this part 617. Any
State other than the liable State shall be an agent State.
[59 FR 932, Jan. 6, 1994]
Sec. 617.17 Availability and active search for work.
(a) Extended Benefit work test applicable. Except as provided in
paragraph (b) of this section, an individual shall, as a basic condition
of entitlement to basic TRA for a week of unemployment--
(1) be unemployed, as defined in the applicable State law for UI
claimants, and
(2) be able to work and available for work, as defined in the
applicable State law for UI claimants, and
(3) satisfy the Extended Benefit work test in each week for which
TRA is claimed, as set forth in Sec. Sec. 617.11(a)(1) (vi) and
617.11(a)(2)(vi).
(b) Exceptions--(1) Prior to November 21, 1988. The conditions
stated in paragraphs (a) and (b) of this section shall not be applicable
to an individual actually participating in training approved under the
applicable State law or under Sec. 617.22(a), or during a scheduled
break in the training program if (as determined for the purposes of
Sec. 617.15 (d)) the individual participated in the training
immediately before the beginning of the break and resumes participation
in the training immediately
[[Page 115]]
after the break ends, unless the individual is ineligible or subject to
disqualification under the applicable State law or Sec. 617.18 (b)(2).
(2) On and after November 21, 1988. The conditions stated in
paragraphs (a)(2) and (a)(3) of this section shall not be applicable to
an individual who is enrolled in or participating in a training program
approved under Sec. 617.22 (a), or during a break in the training
program if (as determined for the purposes of Sec. 617.15(d)) the
individual participated in the training immediately before the beginning
of the break and resumes participation in the training immediately after
the break ends.
[59 FR 932, Jan. 6, 1994]
Sec. 617.18 Disqualifications.
(a) State law applies. Except as stated in paragraph (b) of this
section and Sec. 617.55(b), an individual shall not be paid TRA for any
week of unemployment the individual is or would be disqualified to
receive UI under the disqualification provisions of the applicable State
law, including the provisions of the applicable State law which apply to
EB claimants and which are consistent with section 202(a)(3) of the
Federal-State Extended Unemployment Compensation Act of 1970.
(b) Disqualification of trainees--(1) State law inapplicable. A
State law shall not be applied to disqualify an individual from
receiving either UI or TRA because the individual:
(i) Is enrolled in or is participating in a training program
approved under Sec. 617.22(a); or
(ii) Refuses work to which the individual has been referred by the
State agency, if such work would require the individual to discontinue
training, or if added to hours of training would occupy the individual
more than 8 hours a day or 40 hours a week, except that paragraph
(b)(1)(ii) of this section shall not apply to an individual who is
ineligible under paragraph (b)(2) of this section; or
(iii) Quits work, if the individual was employed in work which was
not suitable (as defined in Sec. 617.22(a)(1)), and it was reasonable
and necessary for the individual to quit work to begin or continue
training approved for the individual under Sec. 617.22(a).
(2) Trainees ineligible. (i) An individual who, without justifiable
cause, fails to begin participation in a training program which is
approved under Sec. 617.22(a), or ceases to participate in such
training, or for whom a waiver is revoked pursuant to Sec. 617.19(c),
shall not be eligible for basic TRA, or any other payment under this
part 617, for the week in which such failure, cessation, or revocation
occurred, or any succeeding week thereafter until the week in which the
individual begins or resumes participation in a training program that is
approved under Sec. 617.22(a).
(ii) For purposes of this section and other provisions of this Part
617, the following definitions shall be used:
(A) Failed to begin participation. A worker shall be determined to
have failed to begin participation in a training program when the worker
fails to attend all scheduled training classes and other training
activities in the first week of the training program, without
justifiable cause.
(B) Ceased participation. A worker shall be determined to have
ceased participation in a training program when the worker fails to
attend all scheduled training classes and other training activities
scheduled by the training institution in any week of the training
program, without justifiable cause.
(C) Justifiable cause. For the purposes of paragraph (b)(2) of this
section, the term ``justifiable cause'' means such reasons as would
justify an individual's conduct when measured by conduct expected of a
reasonable individual in like circumstances, including but not limited
to reasons beyond the individual's control and reasons related to the
individual's capability to participate in or complete an approved
training program.
(c) Disqualification while in OJT. In no case may an individual
receive TRA for any week with respect to which the worker is engaged in
on-the-job training.
[51 FR 45848, Dec. 22, 1986, as amended at 53 FR 32350, Aug. 24, 1988;
59 FR 932, Jan. 6, 1994]
Sec. 617.19 Requirement for participation in training.
(a) In general--(1) Basic requirement. (i) All individuals otherwise
entitled to
[[Page 116]]
basic TRA, for each week, must either be enrolled in or participating in
a training program approved under Sec. 617.22(a), or have completed a
training program approved under Sec. 617.22(a), as provided in Sec.
617.11(a)(2)(vii), in order to be entitled to basic TRA payments for any
such week (except for continuation of payments during scheduled breaks
in training of 14 days or less under the conditions stated in Sec.
617.15(d)). The training requirement of paragraph (a)(1)(i) of this
section shall be waived in writing on an individual basis, solely in
regard to entitlement to basic TRA, if approval of training for the
individual is not feasible or is not appropriate, as determined in
accordance with paragraph (a)(2) of this section.
(ii) As a principal condition of entitlement to additional TRA
payments, all individuals must actually be participating in a training
program approved under Sec. 617.22(a) for each week, and for all weeks
beginning on and after November 21, 1988 (except for continuation of
payments during breaks in training under the conditions stated in Sec.
617.15(d)). Paragraph (a)(2) of this section is not applicable in regard
to additional TRA, and the participation in training requirement of
paragraph (a)(1)(ii) of this section may not be waived under any
circumstances.
(2) Waiver of participation requirement. When it is determined, in
accordance with paragraph (a)(2) of this section, that it is not
feasible or is not appropriate (as such terms are defined in paragraph
(b) of this section) to approve a training program for an individual
otherwise entitled to basic TRA, the individual shall be furnished a
formal written notice of waiver, with an explanation of the reason(s)
for the waiver and a statement of why training is not feasible or is not
appropriate in the case of such individual. At a minimum, the written
statement furnished to the individual shall contain information required
by Sec. 617.50(e) as well as the following information:
(i) Name and social security number of the individual;
(ii) Petition number under which the worker was certified;
(iii) A statement why the agency has determined that it is not
feasible or is not appropriate to approve training for the individual at
that time, and the reason(s) for the finding;
(iv) A statement that the waiver will be revoked at any time that
feasible and appropriate training becomes available;
(v) Any other advice or information the State agency deems
appropriate in informing the individual;
(vi) Signature block (with signature) for the appropriate State
official; and
(vii) Signature block (with signature) for the worker's
acknowledgement of receipt.
(3) Denial of a waiver. In any case in which a determination is made
to deny to any individual a waiver of the participation requirement, the
individual shall be furnished a formal written notice of denial of
waiver, which shall contain all of the information required of formal
written notices under paragraph (a)(2) of this section.
(4) Procedure. Any determination under paragraph (a)(2) or paragraph
(a)(3) of this section shall be a determination to which Sec. Sec.
617.50 and 617.51 apply, including the requirement that any written
notice furnished to an individual shall include notice of the
individual's appeal rights as is provided in Sec. 617.50(e).
(b) Reasons for issuing a waiver. (1) For the purposes of paragraphs
(a)(2) and (a)(3) of this section, a waiver of the participation in
training requirement shall be issued to an individual only upon a
supported finding that approval of a Sec. 617.22(a) training program
for that individual is not feasible or is not appropriate at that time.
(i) Feasible and appropriate. For the purposes of this section:
(A) Feasible. The term feasible means:
(1) Training is available at that time which meets all the criteria
of Sec. 617.22(a);
(2) The individual is so situated as to be able to take full
advantage of the training opportunity and complete the training; and
(3) Funding is available to pay the full costs of the training and
any transportation and subsistence expenses which are compensable. The
funding referred to in paragraph (b)(1)(i)(A)(3) of this section
includes not only TAA program funds but also all other funds available
under any of the provisions of
[[Page 117]]
the Title I, Subchapter B of the Workforce Investment Act or any other
Federal, State or private source that may be utilized for training
approvable under Sec. 617.22(a). Further, the individual's situation in
respect to undertaking training (as referred to in paragraph
(b)(1)(i)(A)(2) of this section) shall include taking into account
personal circumstances that preclude the individual from being able to
participate in and complete the training program, such as the
availability of transportation, the ability to make arrangements for
necessary child care, and adequate financial resources if the weeks of
training exceeds the duration of UI and TRA payments.
(B) Appropriate. The term appropriate means being suitable or
compatible, fitting, or proper. Appropriate, therefore, refers to
suitability of the training for the worker (including whether there is a
reasonable prospect which is reasonably foreseeable that the individual
will be reemployed by the firm from which separated), and compatibility
of the training for the purposes of the TAA Program. In these respects,
suitability of training for the individual is encompassed within the
several criteria in Sec. 617.22 (a), and compatibility with the program
is covered by the various provisions of subpart C of this part which
describe the types of training approvable under Sec. 617.22(a) and the
limitations thereon.
(ii) Basis for application. Whether training is feasible or
appropriate at any given time is determined by finding whether, at that
time, training suitable for the worker is available, the training is
approvable under subpart C of this part including the criteria in Sec.
617.22(a), the worker is so situated as to be able to take full
advantage of the training and satisfactorily complete the training, full
funding for the training is available from one or more sources in
accordance with Sec. Sec. 617.24 and 617.25, the worker has the
financial resources to complete the training when the duration of the
training program exceeds the worker's eligibility for TRA, and the
training will commence within 30 days of approval.
(2) Particular applications. The reasons for any determination that
training is not feasible or is not appropriate shall be in accord with
the following:
(i) Not feasible because--
(A) The beginning date of approved training is beyond 30 days, as
required by the definition for ``Enrolled in training'' in Sec.
617.11(a)(2)(vii)(D),
(B) Training is not reasonably available to the individual,
(C) Training is not available at a reasonable cost,
(D) Funds are not available to pay the total costs of training, or
(E) Personal circumstances such as health or financial resources,
preclude participation in training or satisfactory completion of
training,
(F) Other (explain).
(ii) Not appropriate because--
(A)(1) The firm from which the individual was separated plans to
recall the individual within the reasonably foreseeable future (State
agencies must verify planned recalls with the employer),
(2) Planned recall. For the purpose of determining whether the
recall or reemployment of an individual is reasonably foreseeable (for
the purposes of this section and Sec. 617.22), either a specific or
general type of recall (as set out) shall be deemed to be sufficient.
(i) Specific recall. A specific recall is where an individual or
group of individuals who was separated from employment is identified and
notified by the employer to return to work within a specified time
period.
(ii) General recall. A general recall is where the employer
announces an intention to recall an individual or group of individuals,
or by other action reasonably signals an intent to recall, without
specifying any certain date or specific time period.
(iii) Reasonably foreseeable. For purposes of determining whether
training should be denied and a training waiver granted, because of a
planned recall that is reasonably foreseeable, such a planned recall
includes a specific recall and also includes a general recall (as
defined in paragraph (b)(2)(ii)(A)(2) of this section) if the general
recall in each individual's case is reasonably expected to occur before
the individual exhausts eligibility for any regular UI payments for
which the individual is or may become entitled. A general recall,
[[Page 118]]
in which the timing of the recall is reasonably expected to occur after
the individual's exhaustion of any regular UI to which the individual is
or may become entitled, shall not be treated as precluding approval of
training, but shall be treated as any other worker separation for these
purposes.
(B) The duration of training suitable for the individual exceeds the
individual's maximum entitlement to basic and additional TRA payments
and the individual cannot assure financial responsibility for completing
the training program,
(C) The individual possesses skills for ``suitable employment'' and
there is a reasonable expectation of employment in the foreseeable
future, or
(D) Other (explain).
(3) Waivers and able and available. An individual who has been
furnished a written notice of waiver under paragraph (a)(2) of this
section (or denial of waiver under paragraph (a)(3) of this section)
shall be subject to all of the requirements of Sec. 617.17(a), which
shall continue until the individual is enrolled in a training program as
required by paragraph (a)(2)(vii) of Sec. 617.11.
(c) Waiver review and revocations. (1) State agencies must have a
procedure for reviewing regularly (i.e., every 30 days or less) all
waivers issued under this section to individuals, to ascertain that the
conditions upon which the waivers were granted continue to exist. In any
case in which the conditions have changed--i.e., training has become
feasible and appropriate--then the waiver must be revoked, and a written
notice of revocation shall be furnished to the individual involved.
(2) In addition to the periodic reviews required by paragraph (c)(1)
of this section, State agencies must have a procedure for revoking
waivers in individual cases promptly whenever a change in circumstances
occurs. For example, a written notice of revocation shall be issued to
the individual concurrent with the approval of the training in which the
individual has enrolled (if such training is scheduled to commence
within 30 days), and shall not be issued prior to such approval.
(3) State agencies may incorporate a revocation section in the
waiver form or on a separate revocation form. Any determination under
paragraph (c) of this section shall be a determination to which
Sec. Sec. 617.50 and 617.51 apply. The information included in a
written notice of revocation issued under this paragraph (c) shall
include all of the information required for written notices issued under
paragraph (a)(2) of this section.
(d) Recordkeeping and reporting. (1) State agencies must develop
procedures for compiling and reporting on the number of waivers issued
and revoked, by reason, as specified in paragraphs (b) and (c) of this
section, and report such data to the Department of Labor as requested by
the Department.
(2) State agencies are not required to forward copies of individual
waiver and revocation notices to the Department of Labor, unless
specifically requested by the Department. However, each State agency
shall retain a copy of every individual waiver and revocation notice
issued by the State, for such period of time as the Department requires.
(Approved by the Office of Management and Budget under control number
1205-0016)
[59 FR 932, Jan. 6, 1994, as amended at 71 FR 35515, June 21, 2006]
Subpart C_Reemployment Services
Sec. 617.20 Responsibilities for the delivery of reemployment
services.
(a) State agency referral. Cooperating State agencies shall be
responsible for:
(1) Advising each adversely affected worker to apply for training
with the State agency responsible for reemployment services, while the
worker is receiving UI payments, and at the time the individual files an
initial claim for TRA; and
(2) Referring each adversely affected worker to the State agency
responsible for training and other reemployment services in a timely
manner.
(b) State agency responsibilities. The responsibilities of
cooperating State agencies under subpart C of this part include, but are
not limited to:
(1) Interviewing each adversely affected worker regarding suitable
training opportunities reasonably available
[[Page 119]]
to each individual under subpart C of this part, reviewing such
opportunities with each individual, informing each individual of the
requirement for participation in training as a condition for receiving
TRA, and accepting each individual's application for training. Such
training may be approved for any adversely affected worker at any time
after a certification is issued and the worker is determined to be
covered without regard to whether the worker has exhausted all rights to
unemployment insurance;
(2) Registering adversely affected workers for work;
(3) Informing adversely affected workers of the reemployment
services and allowances available under the Act and this Part 617, the
application procedures, the filing date requirements for such
reemployment services and the training requirement for receiving TRA;
(4) Determining whether suitable employment, as defined in Sec.
617.22(a)(1), is available;
(5) Providing counseling, testing, placement, and supportive
services;
(6) Providing or procuring self-directed job search training, when
necessary;
(7) Providing training, job search and relocation assistance;
(8) Developing a training plan with the individual;
(9) Determining which training institutions offer training programs
at a reasonable cost and with a reasonable expectation of employment
following the completion of such training, and procuring such training;
(10) Documenting the standards and procedures used to select
occupations and training institutions in which training is approved;
(11) Making referrals and approving training programs;
(12) Monitoring the progress of workers in approved training
programs;
(13) Developing, and periodically reviewing and updating
reemployment plans for adversely affected workers;
(14) Developing and implementing a procedure for reviewing training
waivers and revocations at least every 30 days to determine whether the
conditions under which they are issued have changed; and
(15) Coordinating the administration and delivery of employment
services, benefits, training, and supplemental assistance for adversely
affected workers with programs under the Act and under Title I,
Subchapter B of the Workforce Investment Act.
[59 FR 934, Jan. 6, 1994, as amended at 71 FR 35515, June 21, 2006]
Sec. 617.21 Reemployment services and allowances.
Reemployment services and allowances shall include, as appropriate,
the services and allowances as set forth in this section, provided that
those services included within the scope of paragraphs (a) through (e)
of this section shall be provided for under any other Federal law other
than the Act.
(a) Employment registration. To ensure, so far as practical, that
individuals are placed in jobs which utilize their highest skills and
that applicants qualified for job openings are appropriately referred,
applications for registration shall be taken on adversely affected
workers who apply for reemployment services.
(b) Employment counseling. When local job opportunities are not
readily available, counseling shall be used to assist individuals to
gain a better understanding of themselves in relation to the labor
market so that they can more realistically choose or change an
occupation or make a suitable job adjustment.
(c) Vocational testing. Testing shall be used to determine which
individual skills or potentials can be developed by appropriate
training.
(d) Job development. A State agency shall develop jobs for
individuals by soliciting job interviews from public or private
employers and shall work with potential employers to customize or
restructure particular jobs to meet individual needs.
(e) Supportive services. Supportive services shall be provided so
individuals can obtain or retain employment or participate in employment
and training programs leading to eventual placement in permanent
employment. Such services may include work orientation, basic education,
communication skills, child care, and any other
[[Page 120]]
services necessary to prepare an individual for full employment in
accordance with the individual's capabilities and employment
opportunities.
(f) On-the-job training (OJT). OJT is training, in the public or
private sector, and may be provided to an individual who meets the
conditions for approval of training, as provided in Sec. 617.22(a), and
who has been hired by the employer, while the individual is engaged in
productive work which provides knowledge or skills essential to the full
and adequate performance of the job.
(g) Classroom training. This training activity is any training of
the type normally conducted in a classroom setting, including vocational
education, and may be provided to individuals when the conditions for
approval of training are met, as provided in Sec. 617.22(a), to impart
technical skills and information required to perform a specific job or
group of jobs. Training designed to enhance the employability of
individuals by upgrading basic skills, through the provision of courses
such as remedial education or English-as-a-second-language, shall be
considered as remedial education approvable under Sec. 617.22(a) if the
criteria for approval of training under Sec. 617.22(a) are met.
(h) Self-directed job search. Self-directed job search programs
shall be initiated to assist individuals in developing skills and
techniques for finding a job. Such programs vary in design and operation
and call for a carefully structured approach to individual needs. There
are basic elements or activities common to all approaches. These
include:
(1) Job search workshop. A short (1-3 days) seminar designed to
provide participants with knowledge on how to find jobs, including labor
market information, applicant resume writing, interviewing techniques,
and finding job openings.
(2) Job finding club. Encompasses all elements of the Job Search
Workshop plus a period (1-2 weeks) of structured, supervised application
where participants actually seek employment.
(i) Job search allowances. The individual, if eligible, shall be
provided job search allowances under subpart D of this part 617 to
defray the cost of seeking employment outside of the commuting area.
(j) Relocation allowances. The individual, if eligible, shall be
provided relocation allowances under subpart E of this part 617 to
defray the cost of moving to a new job outside of the commuting area.
[51 FR 45848, Dec. 22, 1986, as amended at 59 FR 934, Jan. 6, 1994]
Sec. 617.22 Approval of training.
(a) Conditions for approval. Training shall be approved for an
adversely affected worker if the State agency determines that:
(1) There is no suitable employment (which may include technical and
professional employment) available for an adversely affected worker.
(i) This means that for the worker for whom approval of training is
being considered under this section, no suitable employment is available
at that time for that worker, either in the commuting area, as defined
in Sec. 617.3(k), or outside the commuting area in an area in which the
worker desires to relocate with the assistance of a relocation allowance
under subpart E of this part, and there is no reasonable prospect of
such suitable employment becoming available for the worker in the
foreseeable future. For the purposes of paragraph (a)(1) of this section
only, the term ``suitable employment'' means, with respect to a worker,
work of a substantially equal or higher skill level than the worker's
past adversely affected employment, and wages for such work at not less
that 80 percent of the worker's average weekly wage.
(2) The worker would benefit from appropriate training. (i) This
means that there is a direct relationship between the needs of the
worker for skills training or remedial education and what would be
provided by the training program under consideration for the worker, and
that the worker has the mental and physical capabilities to undertake,
make satisfactory progress in, and complete the training. This includes
the further criterion that the individual will be job ready on
completion of the training program.
(3) There is a reasonable expectation of employment following
completion of such
[[Page 121]]
training. (i) This means that, for that worker, given the job market
conditions expected to exist at the time of the completion of the
training program, there is, fairly and objectively considered, a
reasonable expectation that the worker will find a job, using the skills
and education acquired while in training, after completion of the
training. Any determination under this criterion must take into account
that ``a reasonable expectation of employment'' does not require that
employment opportunities for the worker be available, or offered,
immediately upon the completion of the approved training. This
emphasizes, rather than negates, the point that there must be a fair and
objective projection of job market conditions expected to exist at the
time of completion of the training.
(4) Training approved by the Secretary is reasonably available to
the worker from either governmental agencies or private sources (which
may include area vocational technical education schools, as defined in
Carl D. Perkins Vocational and Applied Technology Education Act, and
employers). (i) This means that training is reasonably accessible to the
worker within the worker's commuting area at any governmental or private
training (or education) provider, particularly including on-the-job
training with an employer, and it means training that is suitable for
the worker and meets the other criteria in paragraph (a) of this
section. It also means that emphasis must be given to finding accessible
training for the worker, although not precluding training outside the
commuting area if none is available at the time within the worker's
commuting area. Whether the training is within or outside the commuting
area, the training must be available at a reasonable cost as prescribed
in paragraph (a)(6) of this section.
(ii) In determining whether or not training is reasonably available,
first consideration shall be given to training opportunities available
within the worker's normal commuting area. Training at facilities
outside the worker's normal commuting area should be approved only if
such training is not available in the area or the training to be
provided outside the normal commuting area will involve less charges to
TAA funds.
(5) The worker is qualified to undertake and complete such training.
(i) This emphasizes the worker's personal qualifications to undertake
and complete approved training. Evaluation of the worker's personal
qualifications must include the worker's physical and mental
capabilities, educational background, work experience and financial
resources, as adequate to undertake and complete the specific training
program being considered.
(ii) Evaluation of the worker's financial ability shall include an
analysis of the worker's remaining weeks of UI and TRA payments in
relation to the duration of the training program. If the worker's UI and
TRA payments will be exhausted before the end of the training program,
it shall be ascertained whether personal or family resources will be
available to the worker to complete the training. It must be noted on
the worker's record that financial resources were discussed with the
worker before the training was approved.
(iii) When adequate financial resources will not be available to the
worker to complete a training program which exceeds the duration of UI
and TRA payments, the training shall not be approved and consideration
shall be given to other training opportunities available to the worker.
(6) Such training is suitable for the worker and available at a
reasonable cost. (i) Such training means the training being considered
for the worker. Suitable for the worker means that paragraph (a)(5) of
this section is met and that the training is appropriate for the worker
given the worker's capabilities, background and experience.
(ii) Available at a reasonable cost means that training may not be
approved at one provider when, all costs being considered, training
substantially similar in quality, content and results can be obtained
from another provider at a lower total cost within a similar time frame.
It also means that training may not be approved when the costs of the
training are unreasonably high in comparison with the average costs of
training other workers in similar occupations at other providers.
[[Page 122]]
This criterion also requires taking into consideration the funding of
training costs from sources other than TAA funds, and the least cost to
TAA funding of providing suitable training opportunities to the worker.
Greater emphasis will need to be given to these elements in determining
the reasonable costs of training, particularly in view of the
requirements in Sec. 617.11(a) (2) and (3) that TRA claimants be
enrolled in and participate in training.
(iii) For the purpose of determining reasonable costs of training,
the following elements shall be considered:
(A) Costs of a training program shall include tuition and related
expenses (books, tools, and academic fees), travel or transportation
expenses, and subsistence expenses;
(B) In determining whether the costs of a particular training
program are reasonable, first consideration must be given to the lowest
cost training which is available within the commuting area. When
training, substantially similar in quality, content and results, is
offered at more than one training provider, the lowest cost training
shall be approved; and
(C) Training at facilities outside the worker's normal commuting
area that involves transportation or subsistence costs which add
substantially to the total costs shall not be approved if other
appropriate training is available.
(b) Allowable amounts for training. In approving a worker's
application for training, the conditions for approval in paragraph (a)
of this section must be found to be satisfied, including assurance that
the training is suitable for the worker, is at the lowest reasonable
cost, and will enable the worker to obtain employment within a
reasonable period of time. An application for training shall be denied
if it is for training in an occupational area which requires an
extraordinarily high skill level and for which the total costs of the
training are substantially higher than the costs of other training which
is suitable for the worker.
(c) Previous approval of training under State law. Training
previously approved for a worker under State law or other authority is
not training approved under paragraph (a) of this section. Any such
training may be approved under paragraph (a) of this section, if all of
the requirements and limitations of paragraph (a) of this section and
other provisions of Subpart C of this part are met, but such approval
shall not be retroactive for any of the purposes of this Part 617,
including payment of the costs of the training and payment of TRA to the
worker participating in the training. However, in the case of a
redetermination or decision reversing a determination denying approval
of training, for the purposes of this Part 617 such redetermination or
decision shall be given effect retroactive to the issuance of the
determination that was reversed by such redetermination or decision; but
no costs of training may be paid unless such costs actually were
incurred for training in which the individual participated, and no
additional TRA may be paid with respect to any week the individual was
not actually participating in the training.
(d) Applications. Applications for, selection for, approval of, or
referral to training shall be filed in accordance with this subpart C
and on forms which shall be furnished to individuals by the State
agency.
(e) Determinations. Selection for, approval of, or referral of an
individual to training under this subpart C, or a decision with respect
to any specific training or non-selection, non-approval, or non-referral
for any reason shall be a determination to which Sec. Sec. 617.50 and
617.51 apply.
(f) Length of training and hours of attendance. The State agency
shall determine the appropriateness of the length of training and the
hours of attendance as follows:
(1) The training shall be of suitable duration to achieve the
desired skill level in the shortest possible time;
(2) Length of training. The maximum duration for any approvable
training program is 104 weeks (during which training is conducted) and
no individual shall be entitled to more than one training program under
a single certification.
(3) Training program. (i) For purposes of this Part 617, a training
program may consist of a single course or group
[[Page 123]]
of courses which is designed and approved by the State agency for an
individual to meet a specific occupational goal.
(ii) When an approved training program involves more than one course
and involves breaks in training (within or between courses, or within or
between terms, quarters, semesters and academic years), all such breaks
in training are subject to the ``14-day break in training'' provision in
Sec. 617.15(d), for purposes of receiving TRA payments. An individual's
approved training program may be amended by the State agency to add a
course designed to satisfy unforeseen needs of the individual, such as
remedial education or specific occupational skills, as long as the
length of the amended training program does not exceed the 104-week
training limitation in paragraph (f)(2) of this section.
(4) Full-time training. Individuals in TAA approved training shall
attend training full time, and when other training is combined with OJT
attendance at both shall be not less than full-time. The hours in a day
and days in a week of attendance in training shall be full-time in
accordance with established hours and days of training of the training
provider.
(g) Training of reemployed workers. Adversely affected workers who
obtain new employment which is not suitable employment, as described in
Sec. 617.22(a)(1), and have been approved for training may elect to:
(1) Terminate their jobs, or
(2) Continue in full- or part-time employment, to undertake such
training, and shall not be subject to ineligibility or disqualification
for UI or TRA as a result of such termination or reduction in
employment.
(h) Fees prohibited. In no case shall an individual be approved for
training under this subpart C for which the individual is required to
pay a fee or tuition.
(i) Training outside the United States. In no case shall an
individual be approved for training under this subpart C which is
conducted totally or partially at a location outside the United States.
[51 FR 45848, Dec. 22, 1986, as amended at 53 FR 32350, Aug. 24, 1988;
59 FR 935, Jan. 6, 1994; 71 FR 35515, June 21, 2006]
Sec. 617.23 Selection of training methods and programs.
(a) State agency responsibilities. If suitable employment as
described in Sec. 617.22(a)(1), is not otherwise available to an
individual or group of individuals, it is the responsibility of the
State agency to explore, identify, develop and secure training
opportunities and to establish linkages with other public and private
agencies, Workforce Investment Boards (WIBs), employers, and Workforce
Investment Act (WIA) service delivery area (SDA) grant recipients, as
appropriate, which return adversely affected workers to employment as
soon as possible.
(b) Firm-specific retraining program. To the extent practicable
before referring an adversely affected worker to approved training, the
State agency shall consult with the individual's adversely affected firm
and certified or recognized union, or other authorized representative,
to develop a retraining program that meets the firm's staffing needs and
preserves or restores the employment relationship between the individual
and the firm. The fact that there is no need by other employers in the
area for individuals in a specific occupation for which training is
undertaken shall not preclude the development of an individual
retraining program for such occupation with the adversely affected firm.
(c) Methods of training. Adversely affected workers may be provided
either one or a combination of the following methods of training:
(1) Insofar as possible, priority will be given to on-the-job
training, which includes related education necessary to acquire skills
needed for a position within a particular occupation, in the firm or
elsewhere pursuant to Sec. Sec. 617.24, 617.25, and 617.26, including
training for which the firm pays the costs. This ensures that on-the-job
training provides the skills necessary for the individual to obtain
employment in an occupation rather than a particular job at a specific
site; and
[[Page 124]]
(2) Institutional training, with priority given to providing the
training in public area vocational education schools if it is determined
that such schools are at least as effective and efficient as other
institutional alternatives, pursuant to Sec. Sec. 617.24, 617.25, and
617.26.
(d) Standards and procedures. The State agency shall document the
standards and procedures used to select occupations and training
institutions in which training is approved. Such occupations and
training shall offer a reasonable expectation (not necessarily a prior
guarantee) of employment following such training.
(1) Standards. The State agency shall approve training in
occupations for which an identifiable demand exists either in the local
labor market or in other labor markets for which relocation planning has
been implemented. If practicable, placement rates and employer reviews
of curriculum shall be used as guides in the selection of training
institutions.
(2) Procedures. In determining the types of training to be provided,
the State agency shall consult with local employers, appropriate labor
organizations, WIBs and other WIA One-Stop partners, WIBs, local
educational organizations, local apprenticeship programs, local advisory
councils established under the Carl D. Perkins Vocational Education Act,
and post-secondary institutions.
(3) Exclusions. In determining suitable training the State agency
shall exclude certain occupations, where:
(i) Lack of employment opportunities exist as substantiated by job
orders and other pertinent labor market data; or
(ii) The occupation provides no reasonable expectation of permanent
employment.
[51 FR 45848, Dec. 22, 1986, as amended at 71 FR 35515, June 21, 2006]
Sec. 617.24 Preferred training.
Training programs that may be approved under Sec. 617.22(a)
include, but are not limited to--
(a) On-the-job training,
(b) Any training program provided by a State pursuant to Title I,
subchapter B of the Workforce Investment Act,
(c) Any training program approved by a Workforce Investment Board
established under the Workforce Investment Act,
(d) Any program of remedial education,
(e) Any training program (other than a training program described in
paragraph (c) of Sec. 617.25) for which all, or any portion, of the
costs of training the worker are paid--
(1) Under any other Federal or State program other than this subpart
C, or
(2) From any other source other than this section, but not including
sources personal to the individual, such as self, relatives, or friends,
and
(f) Any other training program approved by the Department.
[59 FR 936, Jan. 6, 1994, as amended at 71 FR 35515, June 21, 2006]
Sec. 617.25 Limitations on training under Subpart C of this part.
The second sentence of amended section 236(a)(1) of the Act provides
that an adversely affected worker shall be entitled to have payment of
the costs of training approved under the Act paid on the worker's
behalf, subject, however, ``to the limitations imposed by'' section 236.
The limitations in section 236 which are implemented in this section
concern the restrictions on approval of training which are related
directly or indirectly to the conditions on training which are
approvable or on the funding of training costs.
(a) On-the-job training. The costs of on-the-job training approved
subpart C of this part for a worker, which are paid from TAA funds,
shall be paid in equal monthly installments. Such costs may be paid from
TAA funds, and such training may be approved under subpart C of this
part, however, only if the State agency determines that:
(1) No currently employed individual is displaced by such eligible
worker, including partial displacement such as a reduction in the hours
of non-overtime work, wages, or employment benefits;
(2) Such training does not impair existing contracts for services or
collective bargaining agreements;
(3) In the case of training which would be inconsistent with the
terms of a collective bargaining agreement,
[[Page 125]]
written concurrence has been obtained from the concerned labor
organization;
(4) No other individual is on layoff from the same or any
substantially equivalent job for which such eligible worker is being
trained;
(5) The employer has not terminated the employment of any regular
employee or otherwise reduced the work force with the intention of
filling the vacancy so created by hiring the eligible worker;
(6) The job for which the eligible worker is being trained is not
being created in a promotional line that will infringe in any way upon
the promotional opportunities of currently employed individuals;
(7) Such training is not for the same occupation from which the
worker was separated and with respect to which such worker's group was
certified pursuant to section 222 of the Act;
(8) The employer certifies to the State agency that the employer
will continue to employ the eligible worker for at least 26 weeks after
completing the training if the worker desires to continue such
employment and the employer does not have due cause to terminate such
employment;
(9) The employer has not received payment under this subpart C or
under any other Federal law for any other on-the-job training provided
by such employer which failed to meet the requirements of paragraphs
(a)(1) through (a)(6) of this section or such other Federal law; and
(10) The employer has not taken, at any time, any action which
violated the terms of any certification described in paragraph (a)(8) of
this section made by the employer with respect to any other on-the-job
training provided by the employer for which the employer has received a
payment under subpart C of this part (or the prior provisions of subpart
C of this part).
(b) Other authority and restrictions on funding--
(1) In general. Section 236(a) contains several provisions which
allow the costs of a training program approved under the Act to be
paid--
(i) Solely from TAA funds,
(ii) Solely from other public or private funds, or
(iii) Partly from TAA funds and partly from other public or private
funds,
but also precludes the use of TAA funds or funds under another Federal
law where such use of funds would result in duplication of payment of
training costs. Those authorities and restrictions are spelled out in
paragraph (b) of this section: Provided, that, private funds may not
include funds from sources personal to the individual, such as self,
relatives, or friends.
(2) Section 236(a)(5)(E) of the Act. (i) In general. Paragraph
(5)(E) of section 236(a) of the Act specifies one of the types of
training programs approvable under the Act, as including a program
(other than a training program described in section 236(a)(7) (paragraph
(b)(5) of this section)) for which all, or any portion, of the costs of
the training program are paid--
(A) Under any Federal or State program other than the Act, or
(B) From any source other than TAA funds.
(ii) Application. Paragraph (E) of section 236(a)(5) of the Act thus
authorizes prearrangements between cooperating State agencies
administering the TAA program and the authorities administering any
other Federal, State, or private funding source, to agree upon any mix
of TAA funds and other funds for paying the costs of a training program
approved under subpart C of this part. Any such prearrangement must
contain specific commitments from the other authorities to pay the costs
they agree to assume.
(3) Section 236(a)(6) of the Act. (i) In general. Paragraph (6) of
section 236(a) of the Act is related to section 236(a)(5)(E) in
providing that the costs of a training program approved under the Act
are not required to be paid from TAA funds to the extent that such costs
are paid under any Federal or State program other than the Act or from
any source other than the Act.
(ii) Application. (A) Although paragraph (6) of section 236(a) of
the Act is expressed in terms of the costs not being required to be paid
from TAA funds, it authorizes the mixing of TAA funds and funds from any
other Federal, State or private source. Therefore, sharing the future
costs of training is authorized where prior costs
[[Page 126]]
were paid from another Federal, State or private source, but this does
not authorize reimbursement from TAA funds of any training costs which
were incurred and for which payment became due prior to the approval of
the training program under subpart C of this part. In utilizing the
authority under paragraph (b)(3) of this section for sharing training
costs, prearrangements shall be entered into as required under paragraph
(b)(2) of this section before any TAA funds are obligated.
(B) Paragraph (6) of section 236(a) contains a special restriction
on the authority derived thereunder to use TAA funds in sharing training
costs. Therefore, before approving any training program under subpart C
of this part, which may involve sharing of the training costs under the
authority of paragraph (b)(3) of this section, the cooperating State
agencies for the TAA program shall require the worker to enter into a
written agreement with the State under which TAA funds will not be
applied for or used to pay any portion of the costs of the training the
worker has reason to believe will be paid by any other governmental or
private source.
(4) Section 236(a)(4) of the Act. (i) In general. (A) Paragraph (4)
of section 236(a) of the Act (paragraph (3) of section 236(a) before
August 23, 1988) continues to provide, as it did before the addition of
paragraphs (5)(E), (6), and (7) to section 236(a), that:
(1) When the costs of training are paid from TAA funds under subpart
C of this part, no other payment for such costs of training may be made
under any other Federal law; and
(2) When the payment of the costs of training has already been made
under any other Federal law, or the costs are reimbursable under any
other Federal law and a portion of the costs has already been paid under
such other Federal law, payment of such training costs may not be made
from TAA funds.
(B) Paragraph (4) of section 236(a) also requires that: The
provisions of paragraphs (b)(4)(i) (A)(1) and (A)(2) of this section
shall not apply to, or take into account, any funds provided under any
other provision of Federal law which are used for any purpose other than
the direct payment of the identical costs incurred in training the
adversely affected worker under the TAA Program, even if such other use
has the effect of indirectly paying or reducing any portion of the costs
involved in training the adversely affected worker.
(ii) Application. (A) Although the prohibition on duplicate payments
in the first part of section 236(a)(4) remains fully implemented in this
section, the second part of section 236(a)(4) on the sharing of costs
from TAA funds and other Federal fund sources is modified by the
explicit provisions of paragraphs (5)(E) and (6) of section 236(a), as
set forth in paragraphs (b)(2) and (b)(3) of this section.
(B) When the direct costs of a training program approvable under
subpart C of this part are payable from TAA funds and are also wholly or
partially payable under another Federal law, or under any State law or
from private, nongovernmental sources, the TAA Program agencies shall
establish procedures which ensure that TAA funds shall not be utilized
to duplicate funds available from another source, but this preclusion of
duplication does not prohibit and shall not discourage sharing of costs
under prearrangements authorized under paragraphs (b)(2) and (b)(3) of
this section.
(C)(1) Therefore, pursuant to paragraph (4) of section 236(a),
paragraph (b)(4) of this section continues to prohibit duplicate payment
of training costs, which is consistent with the general prohibition
expressed in subpart C of this part, against any use of TAA funds to
duplicate payment of training costs in any circumstances. Paragraph
(b)(4) of this section also continues to prohibit taking into account,
in determining whether training costs are payable from TAA funds, any
payments to the worker under any other Federal law which may have the
effect of indirectly paying all or a portion of the training costs. Such
indirect payments include Veterans Educational Assistance, Pell Grants,
and Supplemental Educational Opportunity Grants, which are paid to the
individual. However, any payments to the individual under these programs
are deductible from TRA payable to the individual under Sec.
617.13(c)(2).
[[Page 127]]
(2) When payments of Veterans Educational Assistance, Pell Grants,
and Supplemental Educational Opportunity Grants are made to the training
provider, instead of the individual, and are used for training costs,
such payments shall be taken into account as direct payment of the
training costs under other Federal law for the purposes of this section.
(5) Section 236(a)(7) of the Act. (i) In general. Paragraph (7) of
section 236(a) of the Act provides that a training program shall not be
approved under the Act if--
(A) all or a portion of the costs of such training program are paid
under any nongovernmental plan or program,
(B) the adversely affected worker has a right to obtain training or
funds for training under such plan or program, and
(C) such plan or program requires the worker to reimburse the plan
or program from funds provided under the Act, or from wages paid under
such training program, for any portion of the costs of such training
program paid under the plan or program.
(ii) Application. Paragraph (7) of section 236(a), which is
implemented in paragraph (b)(5) of this section, reinforces the
prohibition in Sec. 617.22(h) against approval of a training program
under subpart C of this part if the worker is required to pay a fee or
tuition. The provisions of paragraph (b) and paragraph (h) of this
section shall be given effect as prohibiting the approval under subpart
C of this part of any training program if the worker would be requested
or required, at any time or under any circumstances, to pay any of the
costs of a training program, however small, from any TAA funds given to
the worker or from any other funds belonging to the worker from any
source whatever. Aside from this stringent limitation, however,
paragraph (7) of section 236(a) of the Act implicitly authorizes
training approved under this subpart C to be wholly or partly funded
from nongovernmental (i.e., employer, union or other private) sources.
[59 FR 936, Jan. 6, 1994]
Sec. 617.26 Liable and agent State responsibilities.
(a) Liable State. The liable State means, for any individual, the
State which administers the applicable State law (as determined under
Sec. 617.16). The liable State is responsible for making all
determinations, redeterminations, and decisions on appeals on all claims
for program benefits under this part 617, including waivers and
revocations of waivers pursuant to Sec. 617.19, subsistence payments
pursuant to Sec. 617.27, and transportation payments pursuant to Sec.
617.28. Upon receiving a copy of a certification issued by the
Department, with respect to an affected firm in the State, the liable
State also is responsible for publishing newspaper notices as provided
in Sec. 617.4(d), furnishing information and assistance to workers as
provided in Sec. 617.4, furnishing reemployment services under subparts
C, D, and E of this part to all eligible workers covered by such
certification, and carrying out other activities and functions required
by the State's Agreement with the Secretary entered into pursuant to
Sec. 617.59. All determinations pertaining to any individual's
eligibility for or entitlement to any program benefit under this part
617 shall be subject to the provisions of Sec. Sec. 617.50 and 617.51.
(b) Agent State. Agent State means, for any individual, any State
other than the liable State for the individual. Agent States shall be
responsible for cooperating fully with the liable State and assisting
the liable State in carrying out its activities and functions. These
agent State responsibilities shall be part of the activities and
functions undertaken by the agent States under their Agreements entered
into pursuant to Sec. 617.59. Agent State responsibilities include
cooperating with liable States in taking applications and claims for
TAA, providing reemployment services to certified workers in accordance
with subparts B, C, D and E of this part, providing interstate claimants
with TAA program information and assistance, assisting applicants or
claimants to file claims for TAA program benefits and services,
cooperating with the liable State by providing information needed to
issue determinations, redeterminations, and decisions
[[Page 128]]
on appeals, and procuring and paying the cost of any approved training,
including subsistence and transportation costs, according to
determinations issued by the liable State.
[59 FR 938, Jan. 6, 1994]
Sec. 617.27 Subsistence payments.
(a) Eligibility. A trainee under this subpart C shall be afforded
supplemental assistance necessary to pay costs of separate maintenance
when the training facility is located outside the commuting area, but
may not receive such supplemental assistance for any period for which
the trainee receives such a payment under the Workforce Investment Act,
or any other law, or for any day referred to under Sec. 617.28(c)(3)
pursuant to which a transportation allowance is payable to the
individual, or to the extent the individual is entitled to be paid or
reimbursed for such expenses from any other source.
(b) Amount. Subsistence payments shall not exceed the lesser of:
(1) The individual's actual per diem expenses for subsistence; or
(2) 50 percent of the prevailing per diem rate authorized under the
Federal travel regulations (see 41 CFR part 101-7) for the locale of the
training.
(c) Applications. Applications for subsistence payments shall be
filed in accordance with this subpart C and on forms which shall be
furnished to trainees by the State agency. Such payments shall be made
on completion of a week of training, except that at the beginning of a
training project a State agency may advance a payment for a week if it
determines that such advance is necessary to enable a trainee to accept
training. An adjustment shall be made if the amount of an advance is
less or more than the amount to which the trainee is entitled under
paragraph (b) of this section. A determination as to an application made
under this section shall be subject to Sec. Sec. 617.50 and 617.51.
(d) Unexcused absences. No subsistence payment shall be made to an
individual for any day of unexcused absence as certified by the
responsible training facility.
[51 FR 45848, Dec. 22, 1986, as amended at 71 FR 35516, June 21, 2006]
Sec. 617.28 Transportation payments.
(a) Eligibility. A trainee under this subpart C shall be afforded
supplemental assistance necessary to pay transportation expenses if the
training is outside the commuting area, but may not receive such
assistance if transportation is arranged for the trainee as part of a
group and paid for by the State agency or to the extent the trainee
receives a payment of transportation expenses under another Federal law,
or to the extent the individual is entitled to be paid or reimbursed for
such expenses from any other source.
(b) Amount. A transportation allowance shall not exceed the lesser
of:
(1) The actual cost for travel by the least expensive means of
transportation reasonably available between the trainee's home and the
training facility; or
(2) The cost per mile at the prevailing mileage rate authorized
under the Federal travel regulations. See 41 CFR part 101-7.
(c) Travel included. Travel for which a transportation allowance
shall be paid includes travel:
(1) At the beginning and end of the training program;
(2) When the trainee fails for good cause, as described in Sec.
617.18(b)(2), to complete the training program; and
(3) For daily commuting, in lieu of subsistence, but not exceeding
the amount otherwise payable as subsistence for each day of commuting.
(d) Applications. Applications for transportation payments shall be
filed in accordance with this subpart C and on forms which shall be
furnished to trainees by the State agency. Payments may be made in
advance. An adjustment shall be made if the amount of an advance is less
or more than the amount to which the trainee is entitled under paragraph
(b) of this section. A determination as to an application made under
this section shall be subject to Sec. Sec. 617.50 and 617.51.
[[Page 129]]
Sec. 617.29 Application of EB work test.
(a) Registration for employment. Adversely affected workers who have
exhausted all rights to UI and who otherwise qualify for TRA under Sec.
617.11, shall, except as provided in paragraph (b) of this section:
(1) Register for work and be referred to work by the State agency in
the same manner as required for EB claimants under the applicable State
law provisions which are consistent with section 202(a)(3) of the
Federal-State Extended Unemployment Compensation Act of 1970; and
(2) Be subject to the work test requirements for EB claimants under
the applicable State law provisions which are consistent with section
202(a)(3) of the Federal-State Extended Unemployment Compensation Act of
1970.
(b) Exceptions. Paragraph (a) of this section shall not apply to any
week an individual is undergoing training approved under this subpart C.
Subpart D_Job Search Allowances
Sec. 617.30 General.
A job search allowance shall be granted an adversely affected worker
to assist the individual in securing a job within the United States as
provided in this subpart D.
Sec. 617.31 Applications.
(a) Forms. Applications for job search allowances shall be filed in
accordance with this subpart D and on forms which shall be furnished to
individuals by the State agency.
(b) Submittal. An application may be submitted to a State agency at
any time by an individual who has been totally or partially separated
whether or not a certification covering the individual has been made.
However, an application must be submitted to a State agency before the
job search begins for the job search allowance to be granted, and the
job search may not be approved until after the individual is covered
under a certification.
(c) Time limits. Notwithstanding paragraph (b) of this section, a
job search allowance application may be approved only if submitted
before:
(1) The 365th day after the date of the certification under which
the individual is covered, or the 365th day after the date of the
individual's last total separation, whichever is later; or
(2) The 182d day after the concluding date of training approved
under subpart C of this part 617, or approved under the regulations
superseded by this part 617.
Sec. 617.32 Eligibility.
(a) Conditions. Job search allowance eligibility requires:
(1) A timely filed application;
(2) Total separation from adversely affected employment at the time
the job search commences;
(3) Registration with the State agency which shall furnish the
individual such reemployment services as are appropriate under subpart C
of this part 617.
(4) A determination by the State agency that the individual has no
reasonable expectation of securing suitable employment in the commuting
area, and has a reasonable expectation of obtaining suitable employment
of long-term duration outside the commuting area and in the area where
the job search will be conducted. For the purposes of this section, the
term ``suitable employment'' means suitable work as defined in Sec.
617.3(kk) (1) or (2), whichever is applicable to the individual; and
(5) Completion of the job search within a reasonable period not
exceeding 30 days after the day on which the job search began.
(b) Completion of job search. A job search is deemed completed when
the individual either secures employment or has contacted each employer
to whom referred by the State agency in connection with a job search.
(c) Verification of employer contacts. The State agency shall verify
contacts with employers certified by the individual.
[51 FR 45848, Dec. 22, 1986, as amended at 59 FR 938, Jan. 6, 1994]
Sec. 617.33 Findings required.
(a) Findings by liable State. Before final payment of a job search
allowance may be approved, the following
[[Page 130]]
findings shall be made by the liable State:
(1) The individual meets the eligibility requirements for a job
search allowance specified in Sec. 617.32(a) (1) through (4);
(2) The application for a job search allowance was submitted by the
individual within the time limits specified in Sec. 617.31(c); and
(3) The individual completed the job search within the time limits
stated in Sec. 617.32(a)(5), and the requirements of paragraphs (b) and
(c) of Sec. 617.32 have been met.
(b) Agent State. (1) When an individual files an application for a
job search allowance with respect to a job search conducted in a State
other than the liable State, the State agency of the State in which the
individual conducts the job search shall serve as the agent State and be
responsible for assisting the individual in conducting the job search
and in filing an application for a job search allowance with the liable
State, and for assisting the liable State by furnishing to it any
information required for the liable State's determination of the claim.
(2) The agent State shall cooperate fully with the liable State in
carrying out its activities and functions with regard to such
applications.
[59 FR 938, Jan. 6, 1994]
Sec. 617.34 Amount.
(a) Computation. The amount of a job search allowance shall be 90
percent of the total costs of each of the following allowable
transportation and subsistence items:
(1) Travel. The more cost effective mode of travel reasonably
available shall be approved by using:
(i) The actual cost of round trip travel by the most economical
public transportation the individual reasonably can be expected to take
from the individual's residence to the area of job search; or
(ii) The cost per mile at the prevailing mileage rate authorized
under the Federal travel regulations (see 41 CFR part 101-7) for such
roundtrip travel by the usual route from the individual's residence to
the area of job search.
(2) Lodging and meals. The cost allowable for lodging and meals
shall not exceed the lesser of:
(i) The actual cost to the individual of lodging and meals while
engaged in the job search; or
(ii) 50 percent of the prevailing per diem allowance rate authorized
under the Federal travel regulations (see 41 CFR part 101-7) for the
locality where the job search is conducted.
(b) Limit. The total job search allowances paid to an individual
under a certification may not exceed $800, regardless of the number of
job searches undertaken by the individual. The amounts otherwise payable
under paragraph (a) of this section shall be reduced by any amounts the
individual is entitled to be paid or reimbursed for such expenses from
any other source.
[51 FR 45848, Dec. 22, 1986, as amended at 51 FR 45869, Dec. 22, 1986;
53 FR 32351, Aug. 24, 1988; 59 FR 939, Jan. 6, 1994]
Sec. 617.35 Time and method of payment.
(a) Determinations. A State agency shall promptly make and record
determinations necessary to assure entitlement of an individual to a job
search allowance at any time, before or after a certification covering
the individual is made. No job search allowance may be paid or advanced
to an individual until the State agency determines that the individual
is covered under a certification. A State agency shall make payment as
promptly as possible upon determining that the individual is covered
under a certification and is otherwise eligible.
(b) Payment. Unless paragraph (a) of this section applies, a job
search allowance shall be paid promptly after an individual completes a
job search and complies with paragraph (d) of this section.
(c) Advances. A State agency may advance an individual (except an
individual not yet covered under a certification) 60 percent of the
estimated amount of the job search allowance payable on completion of
the job search, but not exceeding $360, within 5 days prior to
commencement of a job search. Such advance shall be deducted from any
payment under paragraph (b) of this section.
[[Page 131]]
(d) Worker evidence. On completion of a job search, the individual
shall certify on forms furnished by the State agency as to employer
contacts made and amounts expended daily for lodging and meals. Receipts
shall be required for all lodging and purchased transportation expenses
incurred by the individual pursuant to the job search. An adjustment
shall be made if the amount of an advance is less or more than the
amount to which the individual is entitled under Sec. 617.34.
Subpart E_Relocation Allowances
Sec. 617.40 General.
A relocation allowance shall be granted an adversely affected worker
to assist the individual and the individual's family, if any, to
relocate within the United States as stated in this subpart E. A
relocation allowance may be granted an individual only once under a
certification. A relocation allowance shall not be granted to more than
one member of a family with respect to the same relocation. If
applications for a relocation allowance are made by more than one member
of a family as to the same relocation, the allowance shall be paid to
the head of the family if otherwise eligible.
Sec. 617.41 Applications.
(a) Forms. Applications for a relocation allowance shall be filed in
accordance with this subpart E and on forms which shall be furnished by
the State agency.
(b) Submittal. An application may be submitted to the State agency
at any time by an individual who has been totally or partially separated
regardless of whether a certification covering the individual has been
made. However, an application must be submitted to a State agency before
the relocation begins for the relocation allowance to be granted, and
the relocation may not be approved until after the individual is covered
under a certification.
(c) Time limits. Notwithstanding paragraph (b) of this section, an
application for a relocation allowance may not be approved unless
submitted before:
(1) The 425th day after the date of the certification under which
the individual is covered, or the 425th day after the date of the
individual's last total separation, whichever is later; or
(2) The 182d day after the concluding date of training approved
under subpart C of this part 617, or approved under the regulations
superseded by this part 617.
Sec. 617.42 Eligibility.
(a) Conditions. Eligibility for a relocation allowance requires:
(1) A timely filed application;
(2) Total separation from adversely affected employment at the time
relocation commences;
(3) No prior receipt of a relocation allowance under the same
certification;
(4) Relocation within the United States and outside the individual's
present commuting area;
(5) Registration with the State agency which shall furnish the
individual such reemployment services as are appropriate under subpart C
of this part 617;
(6) A determination by the State agency that the individual has no
reasonable expectation of securing suitable employment in the commuting
area, and has obtained suitable employment affording a reasonable
expectation of employment of long-term duration, or a bona fide offer of
such suitable employment, outside the commuting area and in the area of
intended relocation. For the purposes of this section, the term
``suitable employment'' means suitable work as defined in Sec.
617.3(kk) (1) and (2), whichever is applicable to the individual; and
(7) Relocation beginning within a reasonable period, as determined
under Sec. 617.43(b), and completion of such relocation within a
reasonable period of time as determined in accordance with Federal
travel regulations and Sec. 617.43(a).
(b) Job search. Applications for a relocation allowance and a job
search allowance may not be approved concurrently, but the prior payment
of a job search allowance shall not otherwise preclude the payment of a
relocation allowance.
[51 FR 45848, Dec. 22, 1986, as amended at 59 FR 939, Jan. 6, 1994]
[[Page 132]]
Sec. 617.43 Time of relocation.
(a) Applicable considerations. In determining whether an
individual's relocation is completed in a reasonable period of time, a
State agency, among other factors, shall consider whether:
(1) Suitable housing is available in the area of relocation;
(2) The individual can dispose of the individual's residence;
(3) The individual or a family member is ill; and
(4) A member of the individual's family is attending school and when
the member can best be transferred to a school in the area of
relocation.
(b) Time limits. The reasonable period for actually beginning a
relocation move shall expire 182 days after the date of application for
a relocation allowance, or 182 days after the conclusion of training
approved under subpart C of this part 617, or approved under the
regulations in former 29 CFR part 91, in effect prior to its
redesignation as this 20 CFR part 617 and its concurrent revision.
Sec. 617.44 Findings required.
(a) Findings by liable State. Before final payment of a relocation
allowance may be approved, the following findings shall be made by the
liable State:
(1) The individual meets the eligibility requirements for a
relocation allowance specified in Sec. 617.42(a) (1) to (6) and Sec.
617.42(b).
(2) The application for a relocation allowance was submitted by the
individual within the time limits specified in Sec. 617.41(c);
(3) The individual began and completed the relocation within the
limitations specified in Sec. 617.42(a)(7) and Sec. 617.43; and
(4) The liable State has verified (directly or through the agent
State) with the employer, and finds, that the individual has obtained
suitable employment affording a reasonable expectation of employment of
long-term duration, or a bona fide offer of such suitable employment, in
the area of intended relocation, in accordance with Sec. 617.42(a)(6).
(b) Agent State. (1) When an individual relocates in a State other
than the liable State, the State agency of the State in which the
individual relocates shall serve as the agent State and be responsible
for:
(i) Assisting the individual in relocating to the State, and in
filing an application for a relocation allowance with the liable State,
and
(ii) Assisting the liable State by furnishing to it any information
required for the liable State's determination on the claim.
(2) The agent State shall cooperate with the liable State in
carrying out its activities and functions with regard to such
applications. When requested by the liable State, the agent State shall
verify with the employer and report to the liable State whether the
individual has obtained suitable employment affording a reasonable
expectation of employment of long-term duration, or a bona fide offer of
such suitable employment.
[59 FR 939, Jan. 6, 1994]
Sec. 617.45 Amount.
(a) Items allowable. The amount payable as a relocation allowance
shall include the following items:
(1) 90 percent of the travel expenses for the individual and family,
if any, from the individual's place of residence to the area of
relocation, as determined under Sec. 617.46;
(2) 90 percent of the expenses of moving household goods and
personal effects of the individual and family, if any, not to exceed the
maximum number of pounds net weight authorized under the Federal travel
regulations (see 41 CFR part 101-7), between such locations, as
determined under Sec. 617.47; and
(3) A lump sum payment, equal to 3 times the individual's average
weekly wage, not to exceed $800.
(b) Reduction. The amount otherwise payable under paragraphs (a)(1)
and (a)(2) of this section shall be reduced by any amount the individual
is entitled to be paid or reimbursed for such expenses from any other
source.
[51 FR 45848, Dec. 22, 1986, as amended at 51 FR 45869, Dec. 22, 1986]
Sec. 617.46 Travel allowance.
(a) Computation. The amount of travel allowance (including lodging
and
[[Page 133]]
meals) payable under Sec. 617.45(a)(1) shall be 90 percent of the total
costs of each of the following allowable transportation and subsistence
items:
(1) Transportation. The more cost effective mode of transportation
reasonably available shall be approved by using:
(i) The actual cost of transportation for the individual and family,
if any, by the most economical public transportation the individual and
family reasonably can be expected to take from the individual's old
residence to the individual's new residence in the area of relocation;
or
(ii) The cost per mile at the prevailing mileage rate authorized
under the Federal travel regulations (see 41 CFR part 101-7) for the
usually traveled route from the individual's old residence to the
individual's new residence in the area of relocation. No additional
mileage shall be payable for family members traveling on the same trip
in the same vehicle.
(2) Lodging and meals. The cost allowable for lodging and meals for
an individual or each member of the individual's family shall not exceed
the lesser of:
(i) The actual cost to the individual for lodging and meals while in
travel status; or
(ii) 50 percent of the prevailing per diem allowance rate authorized
under the Federal travel regulations (see 41 CFR part 101-7) for the
locality to which the relocation is made.
(b) Separate travel. If, for good cause, a member or members of an
individual's family must travel separately to the individual's new
residence, 90 percent of the total costs of such separate travel,
computed in accordance with paragraph (a) of this section, shall be
included in calculating the total amount the individual is entitled to
be paid under this subpart E. For purposes of this paragraph (b), good
cause means such reasons as would justify the family member's inability
to relocate with the other members of the individual's family, including
but not limited to reasons related to the family member's health,
schooling or economic circumstances.
(c) Limitation. In no case may the individual be paid a travel
allowance for the individual or a member of the individual's family more
than once in connection with a single relocation.
[51 FR 45848, Dec. 22, 1986, as amended at 53 FR 32351, Aug. 24, 1988]
Sec. 617.47 Moving allowance.
(a) Computation. The amount of a moving allowance payable under
Sec. 617.45(a)(2) shall be 90 percent of the total of the allowable
costs under either (1), (2), or (3) of this paragraph, and 90 percent of
the total allowable costs under (4) of this paragraph:
(1) Commercial carrier. Allowable costs for moving household goods
and personal effects of an individual and family, if any, shall not
exceed the maximum number of pounds net weight authorized under the
Federal travel regulations (see 41 CFR part 101-7) by commercial carrier
from the individual's old residence to the individual's new residence in
the area of relocation, including reasonable and necessary accessorial
charges, by the most economical commercial carrier the individual
reasonably can be expected to use. Before undertaking such move, the
individual must submit to the State agency an estimate from a commercial
carrier as to the cost thereof. Accessorial charges shall include the
cost of insuring such goods and effects for their actual value or
$10,000, whichever is least, against loss or damage in transit, if a bid
from a licensed insurer is obtained by the individual and approved by
the State agency before departure. If a State agency finds it is more
economical to pay a carrier an extra charge to assume the responsibility
of a common carrier for such goods and effects, 90 percent of such extra
charge, but not exceeding $50, shall be paid in lieu of the cost of
insurance.
(2) Trailer or rental truck--(i) Trailer. If household goods and
personal effects are moved by trailer, the allowable costs shall be:
(A) If the trailer is hauled by private vehicle, the cost per mile
for the use of the private vehicle at the prevailing mileage rate
authorized under the Federal travel regulations (see 41 CFR part 101-7)
for the usually traveled route from the individual's old residence to
[[Page 134]]
the individual's new residence in the area of relocation; and
(B) lf the trailer is rented, and of the type customarily used for
moving household goods and personal effects, the rental fee for each day
reasonably required to complete the move; or
(C) The actual charge if hauling is by commercial carrier,
(ii) Rental truck. If household goods and personal effects are moved
by rental truck of the type customarily used for moving household goods
and personal effects, the allowable costs shall be:
(A) The rental fee for each day reasonably required to complete the
move; and
(B) The necessary fuel for such rental truck paid by the individual.
(3) House trailer. If a house trailer or mobile home was used as the
individual's place of residence in the old area and will be so used in
the new area, the allowable costs of moving such house trailer or mobile
home shall be:
(i) The commercial carrier's charges for moving the house trailer or
mobile home;
(ii) Charges for unblocking and reblocking;
(iii) Ferry charges, bridge, road, and tunnel tolls, taxes, fees
fixed by a State or local authority for permits to transport the unit in
or through its jurisdiction, and retention of necessary flagmen; and
(iv) The cost of insuring the house trailer or mobile home, and the
personal effects of the individual and family, against loss or damage in
transit, in accordance with the provisions in paragraph (a)(1) of this
section.
(4) Temporary storage. If temporary storage of household goods and
personal effects is necessary, the cost of such temporary storage for a
period not to exceed 60 days.
(b) Travel. Payments under this section shall be in addition to
payments for travel expenses for the individual and family, if any,
under Sec. 617.45(a)(1), except that the allowable cost for a private
vehicle used to haul a trailer may not be paid under this section if any
cost with respect to such private vehicle is payable under any other
provisions of this subpart E.
Sec. 617.48 Time and method of payment.
(a) Determinations. A State agency shall promptly make and record
determinations necessary to assure an individual's entitlement to a
relocation allowance at any time, before or after a certification
covering the individual is made. No relocation allowance may be paid or
advanced to an individual until the State agency determines that the
individual is covered under a certification. A State agency shall make
payment as promptly as possible upon determining that the individual is
covered under a certification and is otherwise eligible.
(b) Travel and moving allowances. Allowances computed under
Sec. Sec. 617.46 and 617.47 shall be paid as follows:
(1) Travel--(i) Transportation and subsistence. The amounts
estimated under Sec. 617.46 at 90 percent of the lowest allowable costs
shall be paid in advance at the time an individual departs from the
individual's residence to begin relocation or within 10 days prior
thereto. An amount payable for a family member approved for separate
travel shall be paid to the individual at the time of such family
member's departure or within 10 days prior thereto.
(ii) Worker evidence. On completion of a relocation, the individual
shall certify on forms furnished by the State agency as to the amount
expended daily for lodging and meals. Receipts shall be required for all
lodging and purchased transportation expenses incurred by the individual
and family, if any, pursuant to the relocation. An adjustment shall be
made if the amount of an advance is less or more than the amount to
which the individual is entitled under Sec. 617.46.
(2) Moving. The amount estimated under Sec. 617.47 at 90 percent of
the lowest allowable costs shall be paid:
(i) Commercial carrier. (A) If household goods and personal effects
are moved by commercial carrier, 90 percent of the amount of the
estimate submitted by the individual under Sec. 617.47(a)(1) and
approved by the State agency for covering the cost of such move, and 90
percent of the other charges approved by the State agency under Sec.
617.47(a)(1) shall be advanced by check or checks payable to the carrier
and insurer, and delivered to the individual at the time
[[Page 135]]
of the scheduled shipment or within 10 days prior thereto. On completion
of the move, the individual shall promptly submit to the State agency a
copy of the bill of lading prepared by the carrier, including a receipt
evidencing payment of moving costs. The individual shall with such
submittal reimburse the State agency the amount, if any, by which the
advance made under this paragraph (b)(2)(i) exceeds 90 percent of the
actual moving costs approved by the State agency. The individual shall
be paid the difference if the amount advanced was less than 90 percent
of the actual moving costs approved by the State agency.
(B) If more economical, a State agency may make direct arrangements
for moving and insuring an individual's household goods and personal
effects with a carrier and insurer selected by the individual and may
make payment of 90 percent of moving and insurance costs directly to the
carrier and insurer. No such arrangement shall release a carrier from
liability otherwise provided by law or contract for loss or damage to
the individual's goods and effects. The United States shall not be or
become liable to either party for personal injury or property loss
damage under any circumstances.
(ii) Trailer or rental truck--(A) Private vehicle with trailer. If
the move is by private vehicle and trailer, the allowable cost for the
use of the private vehicle shall be made at the time payment is made
under paragraph (b)(1) of this section.
(B) Rental trailer or rental truck. If the move is by rental trailer
or rental truck:
(1) The individual shall submit an estimate of the rental cost from
the rental agency; and
(2) 90 percent of such estimated rental cost may be advanced by
check payable to the order of the individual and the rental agency at
the time payment is made under paragraph (b)(1) of this section; and
(3) On completion of the move the individual shall submit promptly
to the State agency a receipted bill itemizing and evidencing payment of
the rental charges for the trailer or truck and fuel costs, and shall
reimburse the State agency for the amount, if any, by which the advance
made for the trailer or truck exceeds 90 percent of the rental charges
approved by the State agency. If the amount of the advance was less than
90 percent of the rental charges, the individual shall be paid the
difference.
(iii) House trailer. If a house trailer or mobile home is moved by
commercial carrier, the individual shall submit to the State agency an
estimate of the cost of the move by the commercial carrier. A check for
90 percent of the amount of the estimate, if approved, payable to the
individual and the carrier, may be delivered to the individual at the
time of the scheduled move or within 10 days prior thereto.
(c) Lump sum allowance. The lump sum allowance provided in Sec.
617.45(a)(3) shall be paid when arrangements are completed for
relocation of the individual and family, if any, but not more than 10
days before the earlier of the individual's anticipated departure from
the individual's residence to begin relocation or the anticipated date
of shipment of the individual's household goods and personal effects.
(d) Relocation completed. A relocation is completed when an
individual and family, if any, and their household goods and personal
effects arrive at the individual's residence in the area of relocation.
If no household goods and personal effects are moved, a relocation is
completed when the individual and family, if any, arrive in the area of
relocation and establish a residence in the new area. The later arrival
of a family member approved for separate travel shall not alter the date
a relocation was completed.
Subpart F_Job Search Program
Sec. 617.49 Job Search Program.
(a) Program requirements. (1) A worker, after being separated from
adversely affected employment, must participate in an approved job
search program (JSP), or have completed a JSP, as a condition for
receiving TRA, except where the State agency determines that an
acceptable JSP is not reasonably available.
(2) A TRA claimant is subject to participation in a JSP as a
condition for
[[Page 136]]
receiving TRA for weeks of unemployment which begin after the date the
claimant is notified of the requirement and has filed an initial claim
for TRA. The claimant is not subject to the JSP as a condition for
receiving TRA for weeks which begin prior to that date.
(3) When the State agency determines that the worker has failed to
begin participation in an approved JSP, or ceased to participate in such
a JSP before completion, and there is no justifiable cause for such
failure or cessation, no TRA may be paid to the worker for weeks
beginning with the week that failure or cessation occurred when it is
determined that such failure or cessation was without justifiable cause.
TRA may be paid thereafter to an otherwise eligible worker only for
weeks beginning with the week the worker begins or resumes participation
in an approved JSP or complete the JSP. For purposes of this paragraph
(a)(3), justifiable cause means such reasons as would justify an
individual's conduct when measured by conduct expected of a reasonable
individual in like circumstances, including but not limited to reasons
beyond the individual's control and reasons related to the individual's
capability to enroll in an approved JSP or complete the JSP.
(4) A worker in training approved under Sec. Sec. 617.22 through
617.26, or approved by the State agency under State law, is excepted
from the JSP qualifying requirement while the worker is attending and
making satisfactory progress in the training. This exception applies
whether training begins before or after entitlement to basic TRA
commences, and also applies after training begins for a worker who is
attending a JSP program. Exceptions to the JSP qualifying requirement
must be documented in the worker's claim file by the State agency.
(b) Approved JSPs. A job search program may be approved if:
(1) The JSP is provided through the Workforce Investment Act, the
public employment service, or any other Federal or State funded program,
and complies with paragraphs (w), (x), and (y) of Sec. 617.3.
(2) The JSP is sponsored by a company or firm from which the worker
has been separated, and complies with paragraphs (w), (x), and (y) of
Sec. 617.3.
(c) Determination of reasonably available. (1) Reasonably available
means an existing approved JSP that is located in the worker's normal
commuting area, as defined in Sec. 617.3, and has sufficient capacity
to accommodate the worker.
(2) When the State determines that a JSP is not reasonably available
for a worker, the requirement is not a condition of qualifying for TRA
for the weeks involved. When a determination is made with respect to a
worker, the State agency must document its determination, and the weeks
involved, in the worker's claim file, prior to making TRA payments to
the worker.
(3) The State agency may issue a blanket waiver of the JSP
qualifying requirement for TRA for groups of workers, where deemed
appropriate, when it is determined that there is no functioning JSP.
(4) All determinations that a JSP is not reasonably available should
extend only for that period of time that a JSP is not reasonably
available, and the exception for workers in approved training should
extend until the completion of training. If the State determines that a
JSP is reasonably available at a later date, then the JSP qualifying
requirement must be met for entitlement to basic TRA for weeks of
unemployment beginning with the week in which JSP becomes reasonably
available.
(d) JSP allowances. Subsistence and transportation costs shall be
approved for workers participating in JSPs when deemed appropriate and
within available State funding levels. Costs incurred may not exceed
those allowable for training under Sec. Sec. 617.27 and 617.28, if, and
when, the State refers a worker to a JSP outside the normal commuting
area.
(e) Termination of requirement. The job search program requirement
set out in this section shall not be a condition of entitlement to TRA
for any week.
[53 FR 32351, Aug. 24, 1988, as amended at 54 FR 22277, May 23, 1989; 59
FR 939, Jan. 6, 1994; 71 FR 35516, June 21, 2006]
[[Page 137]]
Subpart G_Administration by Applicable State Agencies
Sec. 617.50 Determinations of entitlement; notices to individuals.
(a) Determinations of initial applications for TRA or other TAA. The
State Agency whose State law is the applicable State law under Sec.
617.16 shall upon the filing of an initial application for TRA or other
TAA promptly determine the individual's entitlement to such TRA or other
TAA under this part 617, and may accept for such purposes information
and findings supplied by another State agency under this part 617.
(b) Determinations of subsequent applications for TRA or other TAA.
The State agency shall, upon the filing of an application for payment of
TRA, or subsistence and transportation under Sec. Sec. 617.27 and
617.28, with respect to a week, promptly determine whether the
individual is eligible for a payment of TRA, or subsistence and
transportation, with respect to such week, and, if eligible, the amount
of TRA, or subsistence and transportation, for which the individual is
eligible. In addition, the State agency promptly shall, upon the filing
of a subsequent application for job search allowances (where the total
of previous job search allowances paid the individual was less than
$600), determine whether the individual is eligible for job search
allowances, and, if eligible, the amount of job search allowances for
which the individual is eligible.
(c) Redeterminations. The provisions of the applicable State law
concerning the right to request, or authority to undertake,
reconsideration of a determination pertaining to a claim for UI under
the applicable State law shall apply to determinations pertaining to all
forms of TAA under this part 617.
(d) Use of State law. In making determinations or redeterminations
under this section, or in reviewing such determinations or
redeterminations under Sec. 617.51, a State agency shall apply the
regulations in this part 617. As to matters committed by this part 617
to the applicable State law, a State agency, a hearing officer, or a
State court shall apply the applicable State law and regulations
thereunder, including procedural requirements of such State law or
regulations, except so far as such State law or regulations are
inconsistent with this part 617 or the purpose of this part 617:
Provided, that, no provision of State law or regulations on good cause
for waiver of any time limit, or for late filing of any claim, shall
apply to any time limitation referred to or specified in this part 617,
unless such State law or regulation is made applicable by a specific
provision of this part 617.
(e) Notices to individual. The State agency shall notify the
individual in writing of any determination or redetermination as to
entitlement to TAA. Each determination or redetermination shall inform
the individual of the reason for the determination or redetermination
and of the right to reconsideration or appeal in the same manner as
determinations of entitlement to UI are subject to redetermination or
appeal under the applicable State law.
(f) Promptness. Full payment of TAA when due shall be made with the
greatest promptness that is administratively feasible.
(g) Procedure. Except where otherwise required by the Act or this
part 617, the procedures for making and furnishing determinations and
written notices of determinations to individuals, shall be consistent
with the Secretary's ``Standard for Claim Determinations--Separation
Information,'' Employment Security Manual, part V, sections 6010-6015
(appendix B of this part).
[51 FR 45848, Dec. 22, 1986, as amended at 59 FR 939, 943, Jan. 6, 1994]
Sec. 617.51 Appeals and hearings.
(a) Applicable State law. A determination or redetermination under
this part 617 shall be subject to review in the same manner and to the
same extent as determinations and redeterminations under the applicable
State law, and only in that manner and to that extent. Proceedings for
review of a determination or redetermination may be consolidated or
joined with proceedings for review of a determination or redetermination
under the State law where convenient or necessary. Procedures as to the
right of appeal and opportunity for fair hearing shall be consistent
with sections 303(a) (1) and (3) of the
[[Page 138]]
Social Security Act (42 U.S.C. 503(a) (1) and (3)).
(b) Appeals promptness. Appeals under paragraph (a) of this section
shall be decided with a degree of promptness meeting the Secretary's
``Standard on Appeals Promptness--Unemployment Compensation'' (part 650
of this chapter). Any provisions of the applicable State law for
advancement or priority of UI cases on judicial calendars, or otherwise
intended to provide for prompt payment of UI when due, shall apply to
proceedings involving entitlement to TAA under this part 617.
Sec. 617.52 Uniform interpretation and application.
(a) First rule of construction. The Act and the implementing
regulations in this part 617 shall be construed liberally so as to carry
out the purpose of the Act.
(b) Second rule of construction. The Act and the implementing
regulations in this part 617 shall be construed so as to assure insofar
as possible the uniform interpretation and application of the Act and
this part 617 throughout the United States.
(c) Effectuating purpose and rules of construction. (1) To
effectuate the purpose of the Act and this part 617 and to assure
uniform interpretation and application of the Act and this part 617
throughout the United States, a State agency shall forward, not later
than 10 days after issuance, to the Department a copy of any judicial or
administrative decision ruling on an individual's entitlement to TAA
under this part 617. On request of the Department, a State agency shall
forward to the Department a copy of any determination or redetermination
ruling on an individual's entitlement to TAA under this part 617.
(2) If the Department believes that a determination,
redetermination, or decision is inconsistent with the Department's
interpretation of the Act or this part 617, the Department may at any
time notify the State agency of the Department's view. Thereafter, the
State agency shall issue a redetermination or appeal if possible, and
shall not follow such determination, redetermination, or decision as a
precedent; and, in any subsequent proceedings which involve such
determination, redetermination, or decision, or wherein such
determination, redetermination, or decision is cited as precedent or
otherwise relied upon, the State agency shall inform the claims deputy
or hearing officer or court of the Department's view and shall make all
reasonable efforts, including appeal or other proceedings in an
appropriate forum, to obtain modification, limitation, or overruling of
the determination, redetermination, or decision.
(3) If the Department believes that a determination,
redetermination, or decision is patently and flagrantly violative of the
Act or this part 617, the Department may at any time notify the State
agency of the Department's view. If the determination, redetermination,
or decision in question denies TAA to an individual, the steps outlined
in paragraph (c)(2) of this section shall be followed by the State
agency. If the determination, redetermination, or decision in question
awards TAA to an individual, the benefits are ``due'' within the meaning
of section 303(a)(1) of the Social Security Act (42 U.S.C. 503(a)(1)),
and therefore must be paid promptly to the individual. However, the
State agency, shall take the steps outlined in paragraph (c)(2) of this
section, and payments to the individual may be temporarily delayed if
redetermination or appeal action is taken not more than one business day
following the day on which the first payment otherwise would be issued
to the individual; and the redetermination action is taken or appeal is
filed to obtain a reversal of the award of TAA and a ruling consistent
with the Department's view; and the redetermination action or appeal
seeks an expedited redetermination or appeal within not more than two
weeks after the redetermination action is taken or the appeal is filed.
If redetermination action is not taken or appeal is not filed within the
above time limit, or a redetermination or decision is not obtained
within the two-week limit, or any redetermination or decision or order
is issued which affirms the determination, redetermination, or decision
awarding TAA or allows it to stand in whole or in part, the benefits
awarded must be paid promptly to the individual.
[[Page 139]]
(4)(i) If any determination, redetermination, or decision, referred
to in paragraph (c)(2) or paragraph (c)(3) of this section, is treated
as a precedent for any future application for TAA, the Secretary will
decide whether the Agreement with the State entered into under the Act
and this part 617 shall be terminated and Sec. 617.59(f) applied.
(ii) In the case of any determination, redetermination, or decision
that is not legally warranted under the Act or this part 617, including
any determination, redetermination, or decision referred to in paragraph
(c)(2) or paragraph (c)(3) of this section, the Secretary will decide
whether the State shall be required to restore the funds of the United
States for any sums paid under such a determination, redetermination, or
decision, and whether, in the absence of such restoration, the Agreement
with the State shall be terminated and Sec. 617.59(f) applied and
whether other action shall be taken to recover such sums for the United
States.
(5) A State agency may request reconsideration of a notice issued
pursuant to paragraph (c)(2) or paragraph (c)(3) of this section, and
shall be given an opportunity to present views and arguments if desired.
Such request shall be made to the Secretary and may include views and
arguments on the matters to be decided by the Secretary under paragraph
(c)(4) of this section.
(6) Concurrence of the Department in a determination,
redetermination, or decision shall not be presumed from the absence of a
notice issued pursuant to this section.
(Approved by the Office of Management and Budget under control number
1205-0222)
Sec. 617.53 Subpoenas.
A State agency may issue subpoenas for attendance of witnesses and
production of records on the same terms and conditions as under the
State law. Compliance may be enforced on the same terms and conditions
as under the State law, or, if a State court declines to enforce a
subpoena issued under this section, the State agency may petition for an
order requiring compliance with such subpoena to the United States
District Court within the jurisdiction of which the relevant proceeding
under this part 617 is conducted.
Sec. 617.54 State agency rulemaking.
A State agency may establish supplemental procedures not
inconsistent with the Act or this part 617 or procedures prescribed by
the Department to further effective administration of this part 617. The
exact text of such supplemental procedure or procedures, certified as
accurate by a responsible official, employee, or counsel of the State
agency, shall be submitted to the Department, on a form supplied by the
Department. No supplemental procedure shall be effective unless and
until approved by the Department. Approval may be granted on a temporary
basis, not to exceed 90 days, in cases of administrative necessity. On
reasonable notice to a State agency, approval of a supplemental
procedure may be withdrawn at any time. If public notice and opportunity
for hearing would be required under a State law for adoption of a
similar or analogous procedure involving UI, such public notice and
opportunity for hearing shall be afforded by the State agency as to the
supplemental procedure.
(Approved by the Office of Management and Budget under control number
1205-0222)
Sec. 617.55 Overpayments; penalties for fraud.
(a) Determination and repayment. (1) If a State agency or a court of
competent jurisdiction determines that any person or individual has
received any payment under this part 617 to which the person or
individual was not entitled, including a payment referred to in
paragraph (b) or paragraph (c) of this section, such person or
individual shall be liable to repay such amount to the State agency, and
the State agency shall recover any such overpayment in accordance with
the provisions of this part 617; except that the State agency may waive
the recovery of any such overpayment if the State agency determines, in
accordance with the guidelines prescribed in paragraph (a)(2) of this
section, that:
(i) The payment was made without fault on the part of such person or
individual; and
[[Page 140]]
(ii) Requiring such repayment would be contrary to equity and good
conscience.
(2)(i)(A) In determining whether fault exists for purposes of
paragraph (a)(1)(i) of this section, the following factors shall be
considered:
(1) Whether a material statement or representation was made by the
person or individual in connection with the application for TAA that
resulted in the overpayment, and whether the person or individual knew
or should have known that the statement or representation was
inaccurate.
(2) Whether the person or individual failed or caused another to
fail to disclose a material fact, in connection with an application for
TAA that resulted in the overpayment, and whether the person or
individual knew or should have known that the fact was material.
(3) Whether the person or individual knew or could have been
expected to know, that the person or individual was not entitled to the
TAA payment.
(4) Whether, for any other reason, the overpayment resulted directly
or indirectly, and partially or totally, from any act or omission of the
person or individual or of which the person or individual had knowledge,
and which was erroneous or inaccurate or otherwise wrong.
(5) Whether there has been a determination of fraud under paragraph
(b) of this section or section 243 of the Act.
(B) An affirmative finding on any one of the factors in paragraphs
(a)(2)(i)(A) of this section precludes waiver of overpayment recovery.
(ii)(A) In determining whether equity and good conscience exists for
purposes of paragraph (a)(1)(ii) of this section, the following factors
shall be considered:
(1) Whether the overpayment was the result of a decision on appeal,
whether the State agency had given notice to the person or individual
that the case has been appealed and that the person or individual may be
required to repay the overpayment in the event of a reversal on appeal,
and whether recovery of the overpayment will not cause extraordinary and
lasting financial hardship to the person or individual.
(2) Whether recovery of the overpayment will not cause extraordinary
financial hardship to the person or individual, and there has been no
affirmative finding under paragraph (a)(2)(ii)(A) of this section with
respect to such person or individual and such overpayment.
(B) An affirmative finding on either of the foregoing factors in
paragraphs (a)(2)(ii)(A) of this section precludes waiver of overpayment
recovery.
(C)(1) For the purpose of paragraph (a)(2)(ii) of this section, an
extraordinary financial hardship shall exist if recovery of the
overpayment would result directly in the person's or individual's loss
of or inability to obtain minimal necessities of food, medicine, and
shelter for a substantial period of time; and an extraordinary and
lasting financial hardship shall be extraordinary as described above and
may be expected to endure for the foreseeable future.
(2) In applying this test in the case of attempted recovery by
repayment, a substantial period of time shall be 30 days, and the
foreseeable future shall be at least three months. In applying this test
in the case of proposed recoupment from other benefits, a substantial
period of time and the foreseeable future shall be the longest potential
period of benefit entitlement as seen at the time of the request for a
waiver determination. In making these determinations, the State agency
shall take into account all potential income of the person or individual
and the person's or individual's firm, organization, or family and all
cash resources available or potentially available to the person or
individual and the person's or individual's firm, organization, or
family in the time period being considered.
(3) Determinations granting or denying waivers of overpayments shall
be made only on request for a waiver determination. Such request shall
be made on a form which shall be furnished to the person or individual
by the State agency. Notices of determination of overpayments shall
include an accurate description of the waiver provisions of paragraph
(a) of this section, if the State agency has elected to allow waivers of
TAA overpayments.
[[Page 141]]
(4) Each State shall have the option to establish a policy as to
whether the waiver provisions of this section shall be applied to TAA
overpayments. A State's decision on its policy shall not be controlled
by whether it waives UI overpayments, but the State's decision shall be
published for the information of the public and the Department.
(5)(i) Unless an overpayment is otherwise recovered, or is waived
under paragraph (a) of this section, the State agency shall recover the
overpayment by deduction from any sums payable to such person or
individual under:
(A) This part 617;
(B) Any Federal unemployment compensation law administered by the
State agency; or
(C) Any other Federal law administered by the State agency which
provides for the payment of unemployment assistance or an allowance with
respect to unemployment.
(ii) In addition, a State agency may recover the overpayment from
unemployment insurance payable to such person or individual under the
State law.
(b) Fraud. If a State agency or a court of competent jurisdiction
finds that any person or individual:
(1) Knowingly has made, or caused another to make, a false statement
or representation of a material fact; or
(2) Knowingly has failed, or caused another to fail, to disclose a
material fact; and as a result of such false statement or
representation, or of such nondisclosure, such individual has received
any payment under this part 617 to which the person or individual was
not entitled, such person or individual shall, in addition to any other
penalty provided by law, be ineligible for any further payments under
this part 617.
(c) Training, job search and relocation allowances. (1) If an
individual fails, with good cause, to complete training, a job search,
or a relocation, any payment or portion of a payment made under this
part 617 to such individual or any person that is not properly and
necessarily expended in attempting to complete such training, job
search, or relocation, shall constitute an overpayment.
(2) If an individual fails, without good cause, to complete
training, a job search, or a relocation, any payment made under this
part 617 to such individual or any person shall constitute an
overpayment.
(3) Such overpayment shall be recovered or waived as provided in
paragraph (a) of this section.
(d) Final determination. Except for overpayments determined by a
court of competent jurisdiction, no repayment may be required, and no
deduction may be made, under this section until a determination under
paragraph (a) of this section by the State agency has been made, notice
of the determination and an opportunity for a fair hearing thereon has
been given to the person or individual concerned, and the determination
has become final.
(e) Deposit. Any amount recovered by a State agency under this
section shall be deposited into the Federal fund or account from which
payment was made.
(f) Procedural requirements. (1) The provisions of paragraphs (c),
(e), and (g) of Sec. 617.50 shall apply to determinations and
redeterminations made pursuant to this section.
(2) The provisions of Sec. 617.51 shall apply to determinations and
redeterminations made pursuant to this section.
(g) Fraud detection and prevention. State procedures for the
detection and prevention of fraudulent overpayments of TAA shall be, as
a minimum, commensurate with the procedures adopted by the State with
respect to State unemployment compensation and consistent with the
Secretary's ``Standard for Fraud and Overpayment Detection,'' Employment
Security Manual, Part V, sections 7510-7515 (Appendix C of this part).
(h) Debts due the United States or Others. (1) Notwithstanding any
provision of this part 617, TAA payable to a person or an individual
under this part 617 shall be applied by the State agency for the
recovery by offset of any debt due the United States from the person or
individual.
(2) TAA shall not be applied or used by the State agency in any
manner for the payment of any debt of any person or individual to any
State or any other entity or person, except that TRA payable to an
individual shall be payable
[[Page 142]]
to someone other than the individual if required by State law and
Federal law to satisfy the individual's obligation for child support or
alimony.
(i) Definition of person. For purposes of this section, a person
includes any employer or other entity or organization as well as the
officers and officials thereof who may bear individual responsibility.
[59 FR 939, Jan. 6, 1994, as amended at 59 FR 943, Jan. 6, 1994]
Sec. 617.56 Inviolate rights to TAA.
Except as specifically provided in this part 617, the rights of
individuals to TAA shall be protected in the same manner and to the same
extent as the rights of persons to UI are protected under the applicable
State law. Such measures shall include protection of applicants for TAA
from waiver, release, assignment, pledge, encumbrance, levy, execution,
attachment, and garnishment of their rights to TAA, except as provided
in Sec. 617.55. In the same manner and to the same extent, individuals
shall be protected from discrimination and obstruction in regard to
seeking, applying for, and receiving any right to TAA.
Sec. 617.57 Recordkeeping; disclosure of information.
(a) Recordkeeping. Each State agency will make and maintain records
pertaining to the administration of the Act as the Secretary requires
and will make all such records available for inspection, examination and
audit by such Federal officials as the Secretary may designate or as may
be required by law. Such recordkeeping will be adequate to support the
reporting of TAA activity on reporting form ETA 563 approved under OMB
control number 1205-0016.
(b) Disclosure of information. Information in records maintained by
a State agency in administering the Act shall be kept confidential, and
information in such records may be disclosed only in the same manner and
to the same extent as information with respect to UI and the entitlement
of individuals thereto may be disclosed under the applicable State law.
Such information shall not, however, be disclosed to an employer or any
other person except to the extent necessary to obtain information from
the employer or other person for the purposes of this part 617. This
provision on the confidentiality of information maintained in the
administration of the Act shall not apply, however, to the Department or
for the purposes of Sec. 617.55 or paragraph (a) of this section, or in
the case of information, reports and studies required pursuant to Sec.
617.61, or where the result would be inconsistent with the Freedom of
Information Act (5 U.S.C. 552), the Privacy Act of 1974 (5 U.S.C. 552a),
or regulations of the Department promulgated thereunder (see 29 CFR
parts 70 and 70a).
Sec. 617.58 Unemployment insurance.
Unemployment insurance payable to an adversely affected worker shall
not be denied or reduced for any week by reason of any right to a
payment of TAA under the Act and this part 617.
Sec. 617.59 Agreements with State agencies.
(a) Authority. Before performing any function or exercising any
jurisdiction under the Act and this part 617, a State or State agency
(as defined in Sec. 617.3(ii)) shall execute an Agreement with the
Secretary meeting the requirements of the Act.
(b) Execution. An Agreement under paragraph (a) of this section
shall be signed on behalf of a State or State agency by an authorized
official of the State or such State agency, and the signature shall be
dated. The authority of the State or State agency official shall be
certified by the Attorney General of the State or counsel for the State
agency, unless the Agreement is signed by the Governor of the State. An
agreement will be executed on behalf of the United States by the
Secretary.
(c) Public access to Agreements. The State agency will make
available to any individual or organization an accurate copy of the
Agreement with the Agency for inspection and copying. Copies of an
Agreement may be furnished on request to any individual or organization
upon payment of the same charges, if any, as apply to the furnishing of
copies of other records of the State agency.
[[Page 143]]
(d) Amended Agreement. A State or State agency shall execute an
amended Agreement with the Secretary prior to administering any
amendments to the TAA provisions of the Trade Act of 1974.
(e) Agent of United States. In making determinations,
redeterminations, and in connection with proceedings for review thereof,
a State or State agency which has executed an Agreement as provided in
this section shall be an agent of the United States and shall carry out
fully the purposes of the Act and this part 617.
(f) Breach. If the Secretary finds that a State or State agency has
not fulfilled its commitments under its Agreement under this section,
section 3302(c)(3) of the Internal Revenue Code of 1986 shall apply. A
State or State agency shall receive reasonable notice and opportunity
for hearing before a finding is made under section 3302(c)(3) whether
there has been a failure to fulfill the commitments under the Agreement.
(g) Secretary's review of State agency compliance. The appropriate
Regional Administrator shall be initially responsible for the periodic
monitoring and reviewing of State and State agency compliance with the
Agreement entered into under this section.
(h) Program coordination. State agencies providing employment
services, training and supplemental assistance under Subpart C of this
part shall, in accordance with their Agreements under this section,
coordinate such services and payments with programs and services
provided by the Workforce Investment Act and with the State agency
administering the State law.
(i) Administration absent State Agreement. In any State in which no
Agreement under this section is in force, the Secretary shall administer
the Act and this part 617 and pay TAA hereunder through appropriate
arrangements made by the Department, and for this purpose the Secretary
or the Department shall be substituted for the State or cooperating
State agency wherever appropriate in this part 617. Such arrangements
shall include the requirement that TAA be administered in accordance
with this part 617, and the provisions of the applicable State law
except to the extent that such State law is inconsistent with any
provision of this part 617 or section 303 of the Social Security Act (42
U.S.C. 503) or section 3304(a) of the Internal Revenue Code of 1986 (26
U.S.C. 3304(a)), and shall also include provision for a fair hearing for
any individual whose application for TAA is denied. A final
determination under paragraph (i) of this section as to entitlement to
TAA shall be subject to review by the courts in the same manner and to
the same extent as is provided by section 205(g) of the Social Security
Act (42 U.S.C. 405(g)).
[51 FR 45848, Dec. 22, 1986, as amended at 53 FR 32351, Aug. 24, 1988;
59 FR 941, Jan. 6, 1994; 71 FR 35516, June 21, 2006]
Sec. 617.60 Administration requirements. [Reserved]
Sec. 617.61 Information, reports, and studies.
A State agency shall furnish to the Secretary such information and
reports and conduct such studies as the Secretary determines are
necessary or appropriate for carrying out the purposes of the Act and
this part 617.
Sec. 617.64 Termination of TAA program benefits.
The following rules are applicable to the termination of TAA
benefits under the Act:
(a) No application for TRA, or transportation or subsistence payment
while in training approved under subpart C of this part 617, shall be
approved, and no payment of TRA or payment for transportation or
subsistence occurring on or before the termination date shall be made
after the termination date specified in the Act, unless the claim for
TRA or an invoice for transportation and subsistence is presented to the
State agency and a final determination is made on the amount payable on
or before the termination date in the Act.
(b) No payment of job search or relocation allowances shall be made
after the termination date specified in the Act, unless an application
for such allowances was approved, such job search or relocation was
completed, and a final determination made on the amount payable for such
benefits by
[[Page 144]]
the State agency on or before the termination date in the Act.
(c) No training under subpart C of this part shall be approved
unless a determination regarding the approval of such training was made
on or before the termination date in the Act, and such training
commenced on or before such termination date. Consistent with the
requirements of section 236(a)(1) of the Act, and the termination
provisions of paragraph (c) of this section, a final determination must
be made on the invoice for the training costs by the State agency on or
before the termination date specified in the Act to cover tuition
related expenses. Determinations on tuition bills shall be limited to
the training term, quarter, semester or other period beginning on or
before the termination date in the Act. The training period should be in
accord with normal billing practices of the training provider and/or
State agency approval practices.
[59 FR 941, Jan. 6, 1994]
Appendix A to Part 617--Standard for Claim Filing, Claimant Reporting,
Job Finding, and Employment Services
Employment Security Manual (Part V, Sections 5000-5004)
5000-5099 Claims Filing
5000 Standard for Claim Filing, Claimant Reporting, Job Finding, and
Employment Services
A. Federal law requirements. Section 3304(a)(1) of the Federal
Unemployment Tax Act and section 303(a)(2) of the Social Security Act
require that a State law provide for:
``Payment of unemployment compensation solely through public
employment offices or such other agencies as the Secretary may
approve.''
Section 3304(a)(4) of the Federal Unemployment Tax and section
303(a)(5) of the Social Security Act require that a State law provide
for:
``Expenditure of all money withdrawn from an unemployment fund of
such State, in the payment of unemployment compensation * * *''
Section 303(a)(1) of the Social Security Act requires that the State
law provide for:
``Such methods of administration * * * as are found by the Secretary
to be reasonably calculated to insure full payment of unemployment
compensation when due.''
B. Secretary's interpretation of federal law requirements.
1. The Secretary interprets section 3304(a)(1) of the Federal
Unemployment Tax Act and section 303(a)(2) of the Social Security Act to
require that a State law provide for payment of unemployment
compensation solely through public employment offices or claims offices
administered by the State employment security agency if such agency
provides for such coordination in the operations of its public
employment offices and claims offices as will insure (a) the payment of
benefits only to individuals who are unemployed and who are able to work
and available for work, and (b) that individuals claiming unemployment
compensation (claimants) are afforded such placement and other
employment services as are necessary and appropriate to return them to
suitable work as soon as possible.
2. The Secretary interprets all the above sections to require that a
State law provide for:
a. Such contact by claimants with public employment offices or
claims offices or both, (1) as will reasonably insure the payment of
unemployment compensation only to individuals who are unemployed and who
are able to work and available for work, and (2) that claimants are
afforded such placement and other employment services as are necessary
and appropriate to facilitate their return to suitable work as soon as
possible; and
b. Methods of administration which do not unreasonably limit the
opportunity of individuals to establish their right to unemployment
compensation due under such States law.
5001 Claim Filing and Claimant Reporting Requirements Designed To
Satisfy Secretary's Interpretation
A. Claim filing--total or part-total unemployment
1. Individuals claiming unemployment compensation for total or part-
total unemployment are required to file a claim weekly or biweekly, in
person or by mail, at a public employment office or a claims office
(these terms include offices at itinerant points) as set forth below.
2. Except as provided in paragraph 3, a claimant is required to file
in person.
a. His new claim with respect to a benefit year, or his continued
claim for a waiting week or for his first compensable week of
unemployment in such year; and
b. Any other claim, when requested to do so by the claims personnel
at the office at which he files his claim(s) because questions about his
right to benefits are raised by circumstances such as the following:
(1) The conditions or circumstances of his separation from
employment;
[[Page 145]]
(2) The claimant's answers to questions on mail claim(s) indicate
that he may be unable to work or that there may be undue restrictions on
his availability for work or that his search for work may be inadequate
or that he may be disqualified;
(3) The claimant's answers to questions on mail claims create
uncertainty about his credibility or indicate a lack of understanding of
the applicable requirements; or
(4) The claimant's record shows that he has previously filed a
fraudulent claim.
In such circumstances, the claimant is required to continue to file
claims in person each week (or biweekly) until the State agency
determines that filing claims in person is no longer required for the
resolution of such questions.
3. A claimant must be permitted to file a claim by mail in any of
the following circumstances:
a. He is located in an area requiring the expenditure of an
unreasonable amount of time or money in traveling to the nearest
facility established by the State agency for filing claims in person;
b. Conditions make it impracticable for the agency to take claims in
person;
c. He has returned to full-time work on or before the scheduled date
for his filing a claim, unless the agency makes provision for in-person
filing at a time and place that does not interfere with his employment;
d. The agency finds that he has good cause for failing to file a
claim in person.
4. A claimant who has been receiving benefits for partial
unemployment may continue to file claims as if he were a partially
unemployed worker for the first four consecutive weeks of total or part-
total unemployment immediately following his period of partial
unemployment so long as he remains attached to his regular employer.
B. Claim filing--partial unemployment. Each individual claiming
unemployment compensation for a week (or other claim period) during
which, because of lack of work, he is working less than his normal
customary full-time hours for his regular employer and is earning less
than the earnings limit provided in the State law, shall not be required
to file a claim for such week or other claim period earlier than 2 weeks
from the date that wages are paid for such claim period or, if a low
earnings report is required by the State law, from the date the employer
furnished such report to the individual. State agencies may permit
claims for partial unemployment to be filed either in person or by mail,
except that in the circumstances set forth in section A 3, filing by
mail must be permitted, and in the circumstances set forth in section A
2 b, filing in person may be required.
5002 Requirement for Job Finding, Placement, and Other Employment
Services Designed To Satisfy Secretary's Interpretation
A. Claims personnel are required to assure that each claimant is
doing what a reasonable individual in his circumstances would do to
obtain suitable work.
B. In the discretion of the State agency:
1. The claims personnel are required to give each claimant such
necessary and appropriate assistance as they reasonably can in finding
suitable work and at their discretion determine when more complete
placement and employment services are necessary and appropriate for a
claimant; and if they determine more complete services are necessary and
appropriate, the claims personnel are to refer him to employment service
personnel in the public employment office in which he has been filing
claim(s), or, if he has been filing in a claims office, in the public
employment office most accessible to him; or
2. All placement and employment services are required to be afforded
to each claimant by employment service personnel in the public
employment office most accessible to him in which case the claims
personnel in the office in which the claimant files his claim are to
refer him to the employment service personnel when placement or other
employment services are necessary and appropriate for him.
C. The personnel to whom the State agency assigns the
responsibilities outlined in paragraph B above are required to give
claimants such job-finding assistance, placement, and other employment
services as are necessary and appropriate to facilitate their return to
suitable work as soon as possible.
In some circumstances, no such services or only limited services may
be required. For example, if a claimant is on a short-term temporary
layoff with a fixed return date, the only service necessary and
appropriate to be given to him during the period of the layoff is a
referral to suitable temporary work if such work is being performed in
the labor market area.
Similarly, claimants whose unemployment is caused by a labor dispute
presumably will return to work with their employer as soon as the labor
dispute is settled. They generally do not need services, nor do
individuals in occupations where placement customarily is made by other
nonfee charging placement facilities such as unions and professional
associations.
Claimants who fall within the classes which ordinarily would require
limited services or no services shall, if they request placement and
employment services, be afforded such services as are necessary and
appropriate for them to obtain suitable work or to achieve their
reasonable employment goals.
[[Page 146]]
On the other hand, a claimant who is permanently separated from his
job is likely to require some services. He may need only some direction
in how to get a job; he may need placement services if he is in an
occupation for which there is some demand in the labor market area; if
his occupation is outdated, he may require counseling and referral to a
suitable training course. The extent and character of the services to be
given any particular claimant may change with the length of his
unemployment and depend not only on his own circumstances and
conditions, but also on the condition of the labor market in the area.
D. Claimants are required to report to employment service personnel,
as directed, but such personnel and the claims personnel required to so
arrange and coordinate the contacts required of a claimant as not to
place an unreasonable burden on him or unreasonably limit his
opportunity to establish his rights to compensation. As a general rule,
a claimant is not required to contact in person claims personnel or
employment service personnel more frequently than once a week, unless he
is directed to report more frequently for a specific service such as
referral to a job or a training course or counseling which cannot be
completed in one visit.
E. Employment service personnel are required to report promptly to
claims personnel in the office in which the claimant files his claim(s):
(1) his failure to apply for or accept work to which he was referred by
such personnel or when known, by any other nonfee-charging placement
facility such as a union or a professional association; and (2) any
information which becomes available to it that may have a bearing on the
claimant's ability to work or availability for work, or on the
suitability of work to which he was referred or which was offered to
him.
5004 Evaluation of Alternative State Provisions
If the State law provisions do not conform to the ``suggested State
law requirements'' set forth in sections 5001 and 5002, but the State
law contains alternative provisions, the Manpower Administrator, in
collaboration with the State agency, will study the actual or
anticipated affect of the alternative provisions. If the Manpower
Administrator concludes that the alternative provisions satisfy the
requirements of the Federal law as construed by the Secretary (see
section 5000 B) he will so notify the State agency. If he does not so
conclude, he will submit the matter to the Secretary. If the Secretary
concludes that the alternative provisions satisfy such requirements, the
State agency will be so notified. If the Secretary concludes that there
is a question as to whether the alternative provisions satisfy such
requirements, the State agency will be advised that unless the State law
provisions are appropriately revised, a notice of hearing will be issued
as required by the Code of Federal Regulations, title 20, section 601.3.
[59 FR 943, Jan. 6, 1994]
Appendix B to Part 617--Standard for Claim Determinations--Separation
Information
6010 Federal Law Requirements. Section 303(a)(1) of the Social
Security Act requires that a State law include provision for:
``Such methods of administration . . . as are found by the Secretary
to be reasonably calculated to insure full payment of unemployment
compensation when due.''
Section 303(a)(3) of the Social Security Act requires that a State
law include provision for:
``Opportunity for a fair hearing before an impartial tribunal, for
all individuals whose claims for unemployment compensation are denied.''
Section 3304(a)(4) of the Federal Unemployment Tax Act and section
303(a)(5) of the Social Security Act require that a State law include
provision for:
``Expenditure of all money withdrawn from an unemployment fund of
such State, in the payment of unemployment compensation. . . .
Section 3306(h) of the Federal Unemployment Tax Act defines
``compensation'' as ``cash benefits payable to individuals with respect
to their unemployment.''
6011 Secretary's Interpretation of Federal Law Requirements. The
Secretary interprets the above sections to require that a State law
include provisions which will insure that:
A. Individuals who may be entitled to unemployment compensation are
furnished such information as will reasonably afford them an opportunity
to know, establish, and protect their rights under the unemployment
compensation law of such State, and
B. The State agency obtains and records in time for the prompt
determination and review of benefit claims such information as will
reasonably insure the payment of benefits to individuals to whom
benefits are due.
6012 Criteria for Review of State Law Conformity with Federal
Requirements:
In determining the conformity of a State law with the above
requirements of the Federal Unemployment Tax Act and the Social Security
Act as interpreted by the Secretary, the following criteria will be
applied:
A. Is it required that individuals who may be entitled to
unemployment compensation be furnished such information of their
potential rights to benefits, including the manner and places of filing
claims, the reasons for determinations, and their rights of appeal, as
will insure them a reasonable opportunity to
[[Page 147]]
know, establish, and protect their rights under the law of the State?
B. Is the State agency required to obtain, in time for prompt
determination of rights to benefits such information as will reasonably
insure the payment of benefits to individuals to whom benefits are due?
C. Is the State agency required to keep records of the facts
considered in reaching determinations of rights to benefits?
6013 Claim Determinations Requirements Designed To Meet Department
of Labor Criteria:
A. Investigation of claims. The State agency is required to obtain
promptly and prior to a determination of an individual's right to
benefits, such facts pertaining thereto as will be sufficient reasonably
to insure the payment of benefits when due.
This requirement embraces five separate elements:
1. It is the responsibility of the agency to take the initiative in
the discovery of information. This responsibility may not be passed on
to the claimant or the employer. In addition to the agency's own
records, this information may be obtained from the worker, the employer,
or other sources. If the information obtained in the first instance
discloses no essential disagreement and provides a sufficient basis for
a fair determination, no further investigation is necessary. If the
information obtained from other sources differs essentially from that
furnished by the claimant, the agency, in order to meet its
responsibility, is required to inform the claimant of such information
from other sources and to afford the claimant an opportunity to furnish
any further facts he may have.
2. Evidentiary facts must be obtained as distinguished from ultimate
facts or conclusions. That a worker was discharged for misconduct is an
ultimate fact or conclusion; that he destroyed a machine upon which he
was working is a primary or evidentiary fact, and the sort of fact that
the requirement refers to.
3. The information obtained must be sufficient reasonably to insure
the payment of benefits when due. In general, the investigation made by
the agency must be complete enough to provide information upon which the
agency may act with reasonable assurance that its decision is consistent
with the unemployment compensation law. On the other hand, the
investigation should not be so exhaustive and time-consuming as unduly
to delay the payment of benefits and to result in excessive costs.
4. Information must be obtained promptly so that the payment of
benefits is not unduly delayed.
5. If the State agency requires any particular evidence from the
worker, it must give him a reasonable opportunity to obtain such
evidence.
B. Recording of facts. The agency must keep a written record of the
facts considered in reaching its determinations.
C. Determination notices:
1. The agency must give each claimant a written notice of:
a. Any monetary determination with respect to his benefit year;
b. Any determination with respect to purging a disqualification if,
under the State law, a condition or qualification must be satisfied with
respect to each week of disqualification; but in lieu of giving written
notice of each determination for each week in which it is determined
that the claimant has met the requirements for purging, the agency may
inform the claimant that he has purged the disqualification for a week
by notation on his applicant identification card or otherwise in
writing.
c. Any other determination which adversely affects his rights to
benefits, except that written notice of determination need not be given
with respect to:
(1) A week in a benefit year for which the claimant's weekly benefit
amount is reduced in whole or in part by earnings if, the first time in
the benefit year that there is such a reduction, he is required to be
furnished a booklet or leaflet containing the information set forth
below in paragraph 2f(1). However, a written notice of determination is
required if: (a) there is a dispute concerning the reduction with
respect to any week (e.g., as to the amount computed as the appropriate
reduction, etc.); or (b) there is a change in the State law (or in the
application thereof) affecting the reduction; or
(2) Any week in a benefit year subsequent to the first week in such
benefit year in which benefits were denied, or reduced in whole or in
part for reasons other than earnings, if denial or reduction for such
subsequent week is based on the same reason and the same facts as for
the first week, and if written notice of determination is required to be
given to the claimant with respect to such first week, and with such
notice of determination, he is required to be given a booklet or
pamphlet containing the information set forth below in paragraph 2f(2)
and 2h. However, a written notice of determination is required if: (a)
there is a dispute concerning the denial or reduction of benefits with
respect to such week; or (b) there is a change in the State law (or in
the application thereof) affecting the denial or reduction; or (c) there
is a change in the amount of the reduction except as to the balance
covered by the last reduction in a series of reductions.
Note: This procedure may be applied to determinations made with
respect to any subsequent weeks for the same reason and on the basis of
the same facts: (a) that claimant is unable to work, unavailable for
work, or is
[[Page 148]]
disqualified under the labor dispute provision; and (b) reducing
claimant's weekly benefit amount because of income other than earnings
or offset by reason of overpayment.
2. The agency must include in written notices of determinations
furnished to claimants sufficient information to enable them to
understand the determinations, the reasons therefor, and their rights to
protest, request reconsideration, or appeal.
The written notice of monetary determination must contain the
information specified in the following items (except h) unless an item
is specifically not applicable. A written notice of any other
determination must contain the information specified in as many of the
following items as are necessary to enable the claimant to understand
the determination and to inform him of his appeal rights. Information
specifically applicable to the individual claimant must be contained in
the written notice of determination. Information of general application
such as (but not limited to) the explanation of benefits for partial
unemployment, information as to deductions, seasonality factors, and
information as to the manner and place of taking an appeal, extension of
the appeal period, and where to obtain information and assistance may be
contained in a booklet or leaflet which is given the claimant with his
monetary determination.
a. Base period wages. The statement concerning base-period wages
must be in sufficient detail to show the basis of computation of
eligibility and weekly and maximum benefit amounts. (If maximum benefits
are allowed, it may not be necessary to show details of earnings.)
b. Employer name. The name of the employer who reported the wage is
necessary so that the worker may check the wage transcript and know
whether it is correct. If the worker is given only the employer number,
he may not be able to check the accuracy of the wage transcript.
c. Explanation of benefit formula--weekly and maximum benefit
amounts. Sufficient information must be given the worker so that he will
understand how his weekly benefit amount, including allowances for
dependents, and his maximum benefit amount were figured. If benefits are
computed by means of a table contained in the law, the table must be
furnished with the notice of determination whether benefits are granted
or denied.
The written notice of determination must show clearly the weekly
benefit amount and the maximum potential benefits to which the claimant
is entitled.
The notice to a claimant found ineligible by reason of insufficient
earnings in the base period must inform him clearly of the reason for
ineligibility. An explanation of the benefit formula contained in a
booklet or pamphlet should be given to each claimant at or prior to the
time he receives written notice of a monetary determination.
d. Benefit year. An explanation of what is meant by the benefit year
and identification of the claimant's benefit year must be included in
the notice of determination.
e. Information as to benefits for partial unemployment. There must
be included either in the written notice of determination or in a
booklet or pamphlet accompanying the notice an explanation of the
claimant's rights to partial benefits for any week with respect to which
he is working less than his normal customary full-time workweek because
of lack of work and for which he earns less than his weekly benefit
amount or weekly benefit amount plus earnings, whichever is provided by
the State law. If the explanation is contained in the notice of
determination, reference to the item in the notice in which his weekly
benefit amount is entered should be made.
f. Deductions from weekly benefits:
(1) Earnings. Although written notice of determinations deducting
earnings from a claimant's weekly benefit amount is generally not
required (see paragraph 1 c (1) above), where written notice of
determination is required (or given) it shall set forth the amount of
earnings, the method of computing the deduction in sufficient detail to
enable the claimant to verify the accuracy of the deduction, and his
right to protest, request redetermination, and appeal. Where a written
notice of determination is given to the claimant because there has been
a change in the State law or in the application of the law, an
explanation of the change shall be included.
When claimant is not required to receive a written notice of
determination, he must be given a booklet or pamphlet the first time in
his benefit year that there is a deduction for earnings which shall
include the following information:
(a) The method of computing deductions for earnings in sufficient
detail to enable the claimant to verify the accuracy of the deduction;
(b) That he will not automatically be given a written notice of
determination for a week with respect to which there is a deduction for
earnings (unless there is a dispute concerning the reduction with
respect to a week or there has been a change in the State law or in the
application of the law affecting the deduction) but that he may obtain
such a written notice upon request; and
(c) A clear statement of his right to protest, request a
redetermination, and appeal from any determination deducting earnings
from his weekly benefit amount even though he does not automatically
receive a written notice of determination; and if the State law requires
written notice of determination in
[[Page 149]]
order to effectuate a protest, redetermination, or appeal, he must be so
advised and advised also that he must request a written notice of
determination before he takes any such action.
(2) Other deductions:
(a) A written notice of determination is required with respect to
the first week in claimant's benefit year in which there is a reduction
from his benefits for a reason other than earnings. This notice must
describe the deduction made from claimant's weekly benefit amount, the
reason for the deduction, the method of computing it in sufficient
detail to enable him to verify the accuracy of such deduction, and his
right to protest, request redetermination, or appeal.
(b) A written notice of determination is not required for subsequent
weeks that a deduction is made for the same reason and on the basis of
the same facts, if the notice of determination pursuant to (2) (a), or a
booklet or pamphlet given him with such notice explains (i) the several
kinds of deductions which may be made under the State law (e.g.,
retirement pensions, vacation pay, and overpayments); (ii) the method of
computing each kind of deduction in sufficient detail that claimant will
be able to verify the accuracy of deductions made from his weekly
benefit payments; (iii) any limitation on the amount of any deduction or
the time in which any deduction may be made; (iv) that he will not
automatically be given a written notice of determination for subsequent
weeks with respect to which there is a deduction for the same reason and
on the basis of the same facts, but that he may obtain a written notice
of determination upon request; (v) his right to protest, request
redetermination, or appeal with respect to subsequent weeks for which
there is a reduction from his benefits for the same reason, and on the
basis of the same facts even though he does not automatically receive a
written notice of determination; and (vi) that if the State law requires
written notice of determination in order to effectuate a protest,
redetermination, or appeal, he must be so advised and advised also that
he must request a written notice of determination before he takes any
such action.
g. Seasonality factors. If the individual's determination is
affected by seasonality factors under the State law, an adequate
explanation must be made. General explanations of seasonality factors
which may affect determinations for subsequent weeks may be included in
a booklet or pamphlet given claimant with his notice of monetary
determinations.
h. Disqualification or ineligibility. If a disqualification is
imposed, or if the claimant is declared ineligible for one or more
weeks, he must be given not only a statement of the period of
disqualification or ineligibility and the amount of wage-credit
reductions, if any, but also an explanation of the reason for the
ineligibility or disqualification. This explanation must be sufficiently
detailed so that he will understand why he is ineligible or why he has
been disqualified, and what he must do in order to requalify for
benefits or purge the disqualification. The statement must be
individualized to indicate the facts upon which the determination was
based, e.g., state, ``It is found that you left your work with Blank
Company because you were tired of working; the separation was voluntary,
and the reason does not constitute good cause,'' rather than merely the
phrase ``voluntary quit.'' Checking a box as to the reason for the
disqualification is not a sufficiently detailed explanation. However,
this statement of the reason for the disqualification need not be a
restatement of all facts considered in arriving at the determination.
i. Appeal rights. The claimant must be given information with
respect to his appeal rights.
(1) The following information shall be included in the notice of
determination:
(a) A statement that he may appeal or, if the State law requires or
permits a protest or redetermination before an appeal, that he may
protest or request a redetermination.
(b) The period within which an appeal, protest, or request for
redetermination must be filed. The number of days provided by statute
must be shown as well as either the beginning date or ending date of the
period. (It is recommended that the ending date of the appeal period be
shown, as this is the more understandable of the alternatives.)
(2) The following information must be included either in the notice
of determination or in separate informational material referred to in
the notice:
(a) The manner in which the appeal, protest, or request for
redetermination must be filed, e.g., by signed letter, written
statement, or on a prescribed form, and the place or places to which the
appeal, protest, or request for redetermination may be mailed or hand-
delivered.
(b) An explanation of any circumstances (such as nonworkdays, good
cause, etc.) which will extend the period for the appeal, protest, or
request for redetermination beyond the date stated or identified in the
notice of determination.
(c) That any further information claimant may need or desire can be
obtained together with assistance in filing his appeal, protest, or
request for redetermination from the local office.
If the information is given in separate material, the notice of
determination would adequately refer to such material if it said, for
example, ``For other information about your (appeal), (protest),
(redetermination) rights, see pages ---- to ---- of the ---- (name of
pamphlet or booklet) heretofore furnished to you.''
[[Page 150]]
6014 Separation Information Requirements Designed To Meet Department
of Labor Criteria:
A. Information to agency. Where workers are separated, employers are
required to furnish the agency promptly, either upon agency request or
upon such separation, a notice describing the reasons for and the
circumstances of the separation and any additional information which
might affect a claimant's right to benefits. Where workers are working
less than full time, employers are required to furnish the agency
promptly, upon agency request, information concerning a claimant's hours
of work and his wages during the claim periods involved, and other facts
which might affect a claimant's eligibility for benefits during such
periods.
When workers are separated and the notices are obtained on a request
basis, or when workers are working less than full time and the agency
requests information, it is essential to the prompt processing of claims
that the request be sent out promptly after the claim is filed and the
employer be given a specific period within which to return the notice,
preferably within 2 working days.
When workers are separated and notices are obtained upon separation,
it is essential that the employer be required to send the notice to the
agency with sufficient promptness to insure that, if a claim is filed,
it may be processed promptly. Normally, it is desirable that such a
notice be sent to the central office of the agency, since the employer
may not know in which local office the worker will file his claim. The
usual procedure is for the employer to give the worker a copy of the
notice sent by the employer to the agency.
B. Information to worker:
1. Information required to be given. Employers are required to give
their employees information and instructions concerning the employees'
potential rights to benefits and concerning registration for work and
filing claims for benefits.
The information furnished to employees under such a requirement need
not be elaborate; it need only be adequate to insure that the worker who
is separated or who is working less than full time knows he is
potentially eligible for benefits and is informed as to what he is to do
or where he is to go to file his claim and register for work. When he
files his claim, he can obtain more detailed information.
In States that do not require employers to furnish periodically to
the State agency detailed reports of the wages paid to their employees,
each employer is required to furnish to his employees information as to
(a) the name under which he is registered by the State agency, (b) the
address where he maintains his payroll records, and (c) the workers'
need for this information if and when they file claims for benefits.
2. Methods for giving information. The information and instructions
required above may be given in any of the following ways:
a. Posters prominently displayed in the employer's establishment.
The State agency should supply employers with a sufficient number of
posters for distribution throughout their places of business and should
see that the posters are conspicuously displayed at all times.
b. Leaflets. Leaflets distributed either periodically or at the time
of separation or reduction of hours. The State agency should supply
employers with a sufficient number of leaflets.
c. Individual notices. Individual notices given to each employee at
the time of separation or reduction in hours.
It is recommended that the State agency's publicity program be used
to supplement the employer-information requirements. Such a program
should stress the availability and location of claim-filing offices and
the importance of visiting those offices whenever the worker is
unemployed, wishes to apply for benefits, and to seek a job.
6015 Evaluation of Alternative State Provisions with Respect to
Claim Determinations and Separation Information. If the State law
provisions do not conform to the suggested requirements set forth in
sections 6013 and 6014, but the State law contains alternative
provisions, the Bureau of Employment Security, in collaboration with the
State agency, will study the actual or anticipated effects of the
alternative provisions. If the Administrator of the Bureau concludes
that the alternative provisions satisfy the criteria in section 6012, he
will so notify the State agency. If the Administrator of the Bureau does
not so conclude, he will submit the matter to the Secretary. If the
Secretary concludes that the alternative provisions satisfy the criteria
in section 6012, the State agency will be so notified. If the Secretary
concludes that there is a question as to whether the alternative
provisions satisfy the criteria, the State agency will be advised that
unless the State law provisions are appropriately revised, a notice of
hearing will be issued as required by the Code of Federal Regulations,
title 20, Sec. 601.5.
[51 FR 45848, Dec. 22, 1986. Redesignated at 59 FR 943, Jan. 6, 1994]
Appendix C to Part 617--Standard for Fraud and Overpayment Detection
7510 Federal Law Requirements. Section 303(a)(1) of the Social
Security Act requires that a State law include provision for:
``Such methods of administration . . . as are found by the Secretary
to be reasonably calculated to insure full payment of unemployment
compensation when due.''
[[Page 151]]
Section 1603(a)(4) of the Internal Revenue Code and section
3030(a)(5) of the Social Security Act require that a State law include
provision for:
``Expenditure of all money withdrawn from an unemployment fund of
such State, in the payment of unemployment compensation . . .''
Section 1607(h) of the Internal Revenue Code defines
``compensation'' as ``cash benefits payable to individuals with respect
to their unemployment.''
7511 The Secretary's Interpretation of Federal Law Requirements. The
Secretary of Labor interprets the above sections to require that a State
law include provision for such methods of administration as are, within
reason, calculated (1) to detect benefits paid through error by the
agency or through willful misrepresentation or error by the claimant or
others, and (2) to deter claimants from obtaining benefits through
willful misrepresentation.
7513 Criteria for Review of State Conformity With Federal
Requirements. In determining State conformity with the above
requirements of the Internal Revenue Code and the Social Security Act,
as interpreted by the Secretary of Labor, the following criteria will be
applied:
A. Are investigations required to be made after the payment of
benefits, (or, in the case of interstate claims, are investigations made
by the agent State after the processing of claims) as to claimants'
entitlement to benefits paid to them in a sufficient proportion of cases
to test the effectiveness of the agency's procedures for the prevention
of payments which are not due? To carry out investigations, has the
agency assigned to some individual or unit, as a basic function, the
responsibility of making or functionally directing such investigations?
Explanation: It is not feasible to prescribe the extent to which the
above activities are required; however, they should always be carried on
to such an extent that they will show whether or not error or willful
misrepresentation is increasing or decreasing, and will reveal problem
areas. The extent and nature of the above activities should be varied
according to the seriousness of the problem in the State. The
responsible individual or unit should:
1. Check paid claims for overpayment and investigate for willful
misrepresentation or, alternatively, advise and assist the operating
units in the performance of such functions, or both;
2. Perform consultative services with respect to methods and
procedures for the prevention and detection of fraud; and
3. Perform other services which are closely related to the above.
Although a State agency is expected to make a full-time assignment
of responsibility to a unit or individual to carry on the functions
described above, a small State agency might make these functions a part-
time responsibility of one individual. In connection with the detection
of overpayments, such a unit or individual might, for example:
(a) Investigate information on suspected benefit fraud received from
any agency personnel, and from sources outside the agency, including
anonymous complaints;
(b) Investigate information secured from comparisons of benefit
payments with employment records to detect cases of concurrent working
(whether in covered or noncovered work) and claiming of benefits
(including benefit payments in which the agency acted as agent for
another State).
The benefit fraud referred to herein may involve employers, agency
employees, and witnesses, as well as claimants.
Comparisons of benefit payments with employment records are comonly
made either by post-audit or by industry surveys. The so-called ``post-
audit'' is a matching of central office wage-record files against
benefit payments for the same period. ``Industry surveys'' or ``mass
audits'' are done in some States by going directly to employers for pay-
roll information to be checked against concurrent benefit lists. A plan
of investigation based on a sample post-audit will be considered as
partial fulfillment of the investigation program; it would need to be
supplemented by other methods capable of detecting overpayments to
persons who have moved into noncovered occupations or are claiming
interstate benefits.
B. Are adequate records maintained by which the results of
investigations may be evaluated?
Explanation. To meet this criterion, the State agency will be
expected to maintain records of all its activities in the detection of
overpayments, showing whether attributable to error or willful
misrepresentation, measuring the results obtained through various
methods, and noting the remedial action taken in each case. The adequacy
and effectiveness of various methods of checking for willful
misrepresentation can be evaluated only if records are kept of the
results obtained. Internal reports on fraudulent and erroneous
overpayments are needed by State agencies for self-evaluation. Detailed
records should be maintained in order that the State agency may
determine, for example, which of several methods of checking currently
used are the most productive. Such records also will provide the basis
for drawing a clear distinction between fraud and error.
C. Does the agency take adequate action with respect to publicity
concerning willful misrepresentation and its legal consequences to deter
fraud by claimants?
Explanation. To meet this criterion, the State agency must issue
adequate material of claimant eligibility requirements and must take
necessary action to obtain publicity on the legal consequences of
willful
[[Page 152]]
misrepresentation or willful nondisclosure of facts.
Public announcements on convictions and resulting penalties for
fraud are generally considered necessary as a deterrent to other
persons, and to inform the public that the agency is carrying on an
effective program to prevent fraud. This alone is not considered
adequate publicity. It is important that information be circulated which
will explain clearly and understandably the claimant's rights, and the
obligations which he must fulfill to be eligible for benefits. Leaflets
for distribution and posters placed in local offices are appropriate
media for such information.
*7515 Evaluation of Alternative State Provisions with Respect to
Erroneous and Illegal Payments. If the methods of administration
provided for by the State law do not conform to the suggested methods of
meeting the requirements set forth in section 7511, but a State law does
provide for alternative methods of administration designed to accomplish
the same results, the Bureau of Employment Security, in collaboration
with the State agency, will study the actual or anticipated effect of
the alternative methods of administration. If the Bureau concludes that
the alternative methods satisfy the criteria in section 7513, it will so
notify the State agency. If the Bureau does not so conclude, it will
submit to the Secretary the results of the study for his determination
of whether the State's alternative methods of administration meet the
criteria.
[51 FR 45848, Dec. 22, 1986. Redesignated at 59 FR 943, Jan. 6, 1994]
PART 618_TRADE ADJUSTMENT ASSISTANCE UNDER THE TRADE ACT OF 1974, AS
AMENDED
Subpart A-G [Reserved]
Subpart H_Administration by Applicable State Agencies
Sec.
618.890 Merit staffing.
Subpart I_Allocation of Training Funds to States
618.900 Annual training cap.
618.910 Distribution of initial allocation of training funds.
618.920 Reserve fund distributions.
618.930 Second distribution.
618.940 Insufficient funds.
Source: 75 FR 17000, Apr. 2, 2010, unless otherwise noted.
Subpart A-G [Reserved]
Subpart H_Administration by Applicable State Agencies
Authority: 19 U.S.C. 2320; Secretary's Order No. 03-2009, 74 FR
2279, Jan. 14, 2009.
Sec. 618.890 Merit staffing.
(a) Merit-based State personnel. The State must, subject to the
transition period in paragraph (b) of this section, engage only State
government personnel to perform Trade Adjustment Assistance (TAA)-funded
functions undertaken to carry out the worker adjustment assistance
provisions of the Trade Act of 1974, as amended, and must apply to such
personnel the standards for a merit system of personnel administration
applicable to personnel covered under 5 CFR part 900, subpart F.
(b) Transition period. A State not already in compliance with the
merit system requirement of paragraph (a) of this section must comply by
December 15, 2010.
(c) Exemptions for States with employment service operation
exemptions. A State whose employment service received an exemption from
merit staffing requirements from the Secretary of Labor (Secretary)
under the Wagner-Peyser Act will retain an exemption from the
requirements of paragraph (a) of this section. The exemption does not
apply to the State's administration of trade readjustment allowances
which remain subject to the requirements of paragraph (a) of this
section. To the extent that a State with an authorized ES exemption
provides TAA-funded services using staff not funded under the Wagner-
Peyser Act, the exemption in this paragraph does not apply, and they
remain subject to the requirements of paragraph (a) of this section.
(d) Exceptions for non-inherently governmental functions. The
requirements of paragraph (a) of this section do not prohibit a State
from outsourcing functions that are not inherently governmental, as
defined in Office of Management and Budget (OMB) Circular No. A-76
(Revised), in any supplemental OMB guidance or superseding authority,
and in DOL guidance.
[[Page 153]]
Subpart I_Allocation of Training Funds to States
Authority: 19 U.S.C. 2320; 19 U.S.C. 2296(g); Secretary's Order No.
03-2009, 74 FR 2279, Jan. 14, 2009.
Sec. 618.900 Annual training cap.
The total amount of payments that may be made for the costs of
training will not exceed the cap established under section 236(a)(2)(A)
of the Trade Act.
(a) For each of the fiscal years 2009 and 2010, this cap is
$575,000,000; and
(b) For the period beginning October 1, 2010, and ending December
31, 2010, this cap is $143,750,000.
Sec. 618.910 Distribution of initial allocation of training funds.
(a) Initial allocation. The initial allocation for a fiscal year
will total 65 percent of the training funds available for that fiscal
year. The Department of Labor (Department) will announce the amount of
each State's initial allocation of funds in accordance with the
requirements of this section at the beginning of each fiscal year. The
Department will determine this initial allocation on the basis of the
full amount of the training cap for that year, even if the full amount
has not been appropriated to the Department at that time.
(b) Timing of the distribution of the initial allocation. The
Department will, as soon as practical after the beginning of each fiscal
year, distribute the initial allocation announced under paragraph (a) of
this section. However, the Department will not distribute the full
amount of the initial allocation until it receives the entire fiscal
year's appropriation of training funds. If the full year's appropriated
amount of training funds is less than the training cap, then the
Department will distribute 65 percent of the amount appropriated.
(c) Hold harmless provision. Except as provided in paragraph (d) of
this section, in no case will the amount of the initial allocation to a
State in a fiscal year be less than 25 percent of the initial allocation
to that State in the preceding fiscal year.
(d) Minimum initial allocation. If a State has an adjusted initial
allocation of less than $100,000, as calculated in accordance with
paragraph (e)(2) of this section, that State will not receive any
initial allocation, and the funds that otherwise would have been
allocated to that State instead will be allocated among the other States
in accordance with this section. A State that does not receive an
initial distribution may apply under Sec. 618.920(b) for reserve funds
to obtain the training funding that it requires.
(e) Process of determining initial allocation. (1) The Department
will first apply the factors described in paragraph (f) of this section
to determine an unadjusted initial allocation for each State.
(2) The Department will then apply the hold harmless provision of
paragraph (c) of this section to the unadjusted initial allocation, as
follows:
(i) A State whose unadjusted initial allocation is less than its
hold harmless amount but is $100,000 or more, will have its initial
allocation adjusted up to its hold harmless amount. If a State's
unadjusted allocation is less than $100,000, the State will receive no
initial allocation, in accordance with paragraph (d) of this section.
Those funds will be shared among other States as provided in paragraph
(e)(3) of this section.
(ii) A State whose unadjusted initial allocation is no less than its
hold harmless threshold will receive its hold harmless amount and will
also receive an adjustment equal to the State's share of the remaining
initial allocation funds, as provided in paragraph (e)(3) of this
section.
(3) The initial allocation funds remaining after the adjusted
initial allocations are made to those States receiving only their hold
harmless amounts, as described in paragraph (e)(2)(i) of this section,
will be distributed among the States with unadjusted initial allocations
that were no less than their hold harmless amounts, as described in
paragraph (e)(2)(ii) of this section (the remaining States). The
distribution of the remaining initial allocation funds among the
remaining States will be made by reapplying the calculation in paragraph
(f) of this section. This recalculation will disregard
[[Page 154]]
States receiving only their hold harmless amount under paragraph
(e)(2)(i) of this section, so that the combined percentages of the
remaining States total 100 percent.
(f) Initial allocation factors. (1) In determining how to make the
initial allocation of training funds, the Department will apply, as
provided in paragraph (f)(3) of this section, the following factors with
respect to each State:
(i) The trend in the number of workers covered by certifications of
eligibility during the most recent four consecutive calendar quarters
for which data are available. The trend will be established by assigning
a greater weight to the most recent quarters, giving those quarters a
larger share of the factor;
(ii) The trend in the number of workers participating in training
during the most recent four consecutive calendar quarters for which data
are available. The trend will be established by assigning a greater
weight to the most recent quarters, giving those quarters a larger share
of the factor;
(iii) The number of workers estimated to be participating in
training during the fiscal year. The estimate will be calculated by
dividing the weighted average number of training participants for the
State determined in paragraph (f)(1)(ii) of this section by the sum of
the weighted averages for all States and multiplying the resulting ratio
by the projected national average of training participants for the
fiscal year, using the estimates underlying the Department's most recent
budget submission or update; and
(iv) The amount of funding estimated to be necessary to provide
approved training to such workers during the fiscal year. The estimate
will be calculated by multiplying the estimated number of participants
in paragraph (f)(1)(iii) of this section by the average training cost
for the State. The average training cost will be calculated by dividing
total training expenditures for the most recent four quarters by the
average number of training participants for the same time period.
(2) The Department may use such other factors that it considers
appropriate.
(3) The Department will assign each of the factors listed in
paragraphs (f)(1)(i) through (f)(1)(iv) of this section an equal weight.
For each of these weighted factors, the Department will determine the
national total and each State's percentage of the national total. Based
on a State's percentage of each of these weighted factors, the
Department will determine the percentage that the State will receive of
the amount available for initial allocations. The percentages of initial
allocation amounts calculated for all States combined will total 100
percent of initial allocation funds.
(4) The Department may, by administrative guidance published for
comment, change the weights provided in paragraphs (f)(1) and (f)(3) of
this section, or add additional factors. No such changes or additions
will take effect before December 31, 2010.
Sec. 618.920 Reserve fund distributions.
(a) The remaining 35 percent of the training funds for a fiscal year
will be held by the Department as a reserve. Reserve funds will be used,
as needed, for additional distributions during the remainder of the
fiscal year and for those States that do not receive an initial
distribution. States may not receive reserve funds for TAA
administration or employment and case management services without a
request for training funds.
(b) A State requesting reserve funds must demonstrate that at least
50 percent of its training funds have been expended, or that it needs
more funds to meet unusual and unexpected events. A State requesting
reserve funds also must provide a documented estimate of expected
funding needs through the end of the fiscal year. That estimate must be
based on an analysis that includes at least the following:
(1) The average cost of training in the State;
(2) The expected number of participants in training through the end
of the fiscal year; and
(3) The remaining funds the State has available for training.
Sec. 618.930 Second distribution.
The Department will distribute at least 90 percent of the total
training
[[Page 155]]
funds for a fiscal year to the States no later than July 15 of that
fiscal year. The Department will first fund all acceptable requests for
reserve funds filed before June 1. If there are any funds remaining to
be distributed after these reserve fund requests are satisfied, those
funds will be distributed to those States that received an initial
allocation in an amount greater than their hold harmless amount, using
the methodology described in Sec. 618.910.
Sec. 618.940 Insufficient funds.
If, during a fiscal year, the Department estimates that the amount
of funds necessary to pay the costs of approved training will exceed the
training cap under Sec. 618.900, the Department will decide how the
amount of available training funds that have not been distributed at the
time of the estimate will be allocated among the States for the
remainder of the fiscal year. That decision will be communicated through
administrative notice.
PART 619_UNEMPLOYMENT COMPENSATION DATA EXCHANGE STANDARDIZATION FOR
IMPROVED INTEROPERABILITY
Sec.
619.1 Definitions.
619.2 Data exchange standardization for ICON.
619.3 Data exchange standardization for SIDES.
619.4 Data exchange standardization for the UI Benefits and Tax Systems.
Authority: 42 U.S.C. 1111; Section 2104(b) of Pub. L. 112-96; 42
U.S.C. 1302(a).
Source: 79 FR 9411, Feb. 19, 2014, unless otherwise noted.
Sec. 619.1 Definitions.
As used in this part--
Administrator of the Office of Unemployment Insurance means the
Department's Employment and Training Administration's chief
administrative officer directly responsible for the operation of the
Unemployment Insurance (UI) program and oversight of the Unemployment
Compensation (UC) program and UC laws.
Department means the United States Department of Labor.
eXtensible Markup Language or XML means a markup language that
defines a set of rules for encoding documents in a format designed to
structure, store and transport data between applications or systems over
the Internet. This term includes any future upgrades, iterations, or
releases of XML-based language.
Federal funds or Federally-funded means funds that include, but are
not limited to:
(1) Supplemental budget funds that are designated by the Department
for State IT modernization efforts;
(2) General State UI administration funding for State program
operations (an administrative grant issued by the Department at the
beginning of each fiscal year); and
(3) Special UI funding distributions.
Interstate Connection Network or ICON means a secure multi-purpose
telecommunications network that supports the transfer of data among the
SWAs.
Interstate Wages and Benefits Inquiries/Responses means the ICON
application which supports online transmission of interstate wages and
benefits inquiries and responses between SWAs.
Major IT Modernization Project means conversion, re-engineering,
rewriting, or transferring of an existing system to a modernized
framework such as transferring a process from mainframe operations to
Web-based operations, converting to modern computer programming
languages, or upgrading software libraries, protocols, or hardware
platform and infrastructure. These are projects to upgrade UI Benefits
and Tax Systems by SWAs using Federal funds.
State or States refers to, individually or collectively, the 50
States of the United States of America, the District of Columbia, the
Commonwealth of Puerto Rico, and the United States Virgin Islands.
State Identification Inquiry means the ICON application which allows
SWAs to inquire about wages reported to other SWAs by Social Security
Number.
State Information Data Exchange System or SIDES means an automated
response system used by SWAs to collect claim-related information from
employers and third-party administrators.
[[Page 156]]
State unemployment compensation law or UC law means the law of a
State approved under Section 3304(a) of the Internal Revenue Code of
1986 (26 U.S.C. 3304(a)).
State Workforce Agency or SWA means the agency of the State charged
with the administration of the State's Unemployment Compensation (UC)
law.
Unemployment Compensation or UC means cash benefits payable to
individuals with respect to their unemployment, as defined in 26 U.S.C.
3306(h).
Unemployment Insurance or UI means the Federal-State system and
operations administering and implementing UC law.
Withdrawn/Invalid Claims means the ICON application which allows for
the posting and viewing of withdrawn or invalid claim information for
SWAs.
Sec. 619.2 Data exchange standardization for ICON.
(a) XML is the data exchange standard for the real-time ICON
applications. These applications are: Interstate Wages and Benefits
Inquiries/Responses; Withdrawn/Invalid Claims; and State Identification
Inquiry.
(b) All SWAs using real-time ICON applications must comply with this
XML data exchange standard no later than September 30, 2018. A SWA may
request an extension of this deadline if it demonstrates that resources
are not available to meet this requirement. These requests must be
submitted in writing to the Administrator of the Office of Unemployment
Insurance no later than 6 months before the deadline; requests will be
approved or denied within 30 days.
Sec. 619.3 Data exchange standardization for SIDES.
(a) XML is the data exchange standard for SIDES.
(b) This standard applies to any Federally-funded SIDES consortium,
and any future agents of the Department providing vendor services for
the development, maintenance, support, and operations of the SIDES, and
for any State that adopts SIDES. A SIDES consortium involves a group of
two or more States jointly establishing a project team to oversee the
design, development, and implementation of a new SIDES data exchange
module. As States implement SIDES or new data exchange modules of SIDES,
they must conform to this data exchange standard by application design.
(c) XML is designated as the data exchange standard to govern the
reporting of information through SIDES data exchange modules. The
regulation applies to current SIDES data exchange modules and any future
SIDES data exchange modules developed with Federal funds.
(d) The standard designated in paragraphs (a), (b), and (c) of this
section is effective March 21, 2014.
Sec. 619.4 Data exchange standardization for the UI Benefits and Tax
Systems.
(a) XML is the data exchange standard for the real time ICON
applications set out in Sec. 619.2 and for the SIDES exchanges set out
in Sec. 619.3 associated with major IT modernization projects, to
upgrade UI Benefits and Tax Systems by SWAs using Federal funds.
(b) The standard designated in paragraph (a) of this section is
effective March 21, 2014.
PARTS 620 621 [RESERVED]
PART 625_DISASTER UNEMPLOYMENT ASSISTANCE
Sec.
625.1 Purpose; rules of construction.
625.2 Definitions.
625.3 Reemployment assistance.
625.4 Eligibility requirements for Disaster Unemployment Assistance.
625.5 Unemployment caused by a major disaster.
625.6 Weekly amount; jurisdictions; reductions.
625.7 Disaster Unemployment Assistance: Duration.
625.8 Applications for Disaster Unemployment Assistance.
625.9 Determinations of entitlement; notices to individual.
625.10 Appeal and review.
625.11 Provisions of State law applicable.
625.12 The applicable State for an individual.
625.13 Restrictions on entitlement; disqualification.
625.14 Overpayments; disqualification for fraud.
625.15 Inviolate rights to DUA.
[[Page 157]]
625.16 Recordkeeping; disclosure of information.
625.17 Announcement of the beginning of a Disaster Assistance Period.
625.18 Public access to Agreements.
625.19 Information, reports and studies.
625.20 [Reserved]
625.30 Appeal Procedures for Guam, American Samoa, Commonwealth of the
Northern Mariana Islands, Federated States of Micronesia,
Republic of the Marshall Islands, and the Trust Territory of
the Pacific Islands.
Appendix A to Part 625--Standard for Claim Filing, Claimant Reporting,
Job Finding, and Employment Services
Appendix B to Part 625--Standard for Claim Determinations--Separation
Information
Appendix C to Part 625--Standard for Fraud and Overpayment Detection
Authority: 42 U.S.C. 1302; 42 U.S.C. 5164; 42 U.S.C. 5189a(c); 42
U.S.C. 5201(a); Executive Order 12673 of March 23, 1989 (54 FR 12571);
delegation of authority from the Director of the Federal Emergency
Management Agency to the Secretary of Labor, effective December 1, 1985
(51 FR 4988); Secretary's Order No. 4-75 (40 FR 18515).
Source: 42 FR 46712, Sept. 16, 1977, unless otherwise noted.
Sec. 625.1 Purpose; rules of construction.
(a) Purpose. Section 410 of ``The Robert T. Stafford Disaster Relief
and Emergency Assistance Act'' amended the program for the payment of
unemployment assistance to unemployed individuals whose unemployment is
caused by a major disaster, and to provide reemployment assistance
services to those individuals. The unemployment assistance provided for
in section 410 of the Act is hereinafter referred to as Disaster
Unemployment Assistance, or DUA. The regulations in this part are issued
to implement sections 410 and 423 of the Act.
(b) First rule of construction. Sections 410 and 423 of the Act and
the implementing regulations in this part shall be construed liberally
so as to carry out the purposes of the Act.
(c) Second rule of construction. Sections 410 and 423 of the Act and
the implementing regulations in this part shall be construed so as to
assure insofar as possible the uniform interpretation and application of
the Act throughout the United States.
(d) Effectuating purpose and rules of construction. (1) In order to
effectuate the provisions of this section, each State agency shall
forward to the United States Department of Labor, on receipt of a
request from the Department, a copy of any determination or
redetermination ruling on an individual's entitlement to DUA.
(2) If the Department believes a determination or redetermination is
inconsistent with the Secretary's interpretation of the Act, the
Department may at any time notify the State agency of the department's
view. Thereafter, the State agency shall appeal if possible, and shall
not follow such determination or redetermination as a precedent; and in
any subsequent proceedings which involve such determination or
redetermination, or wherein such determination or redetermination is
cited as precedent or otherwise relied upon, the State agency shall
inform the hearing officer of the Department's view and shall make all
reasonable efforts to obtain modification, limitation, or overruling of
the determination or redetermination.
(3) A State agency may request reconsideration of a notice that a
determination or redetermination is inconsistent with the Act, and shall
be given an opportunity to present views and arguments if desired. If a
determination or redetermination setting a precedent becomes final,
which the Department believes to be inconsistent with the Act, the
Secretary will decide whether the Agreement with the State shall be
terminated.
(4) Concurrence of the Department in a determination or
redetermination shall not be presumed from the absence of a notice
issued pursuant to this paragraph.
[42 FR 46712, Sept. 16, 1977, as amended at 55 FR 554, Jan. 5, 1990]
Sec. 625.2 Definitions.
For the purposes of the Act and this part:
(a) Act means sections 410 and 423 of The Robert T. Stafford
Disaster Relief and Emergency Assistance Act (formerly section 407 of
the ``Disaster Relief Act of 1974'', Pub. L. 93-288, 88 Stat. 143, 156,
approved May 22, 1974), 42 U.S.C. 5177, 5189a, as amended by The
Disaster Relief and Emergency Assistance Amendments of 1988, Pub. L.
100-707, 102 Stat.
[[Page 158]]
4689, 4704, 4705, approved November 23, 1988.
(b) Agreement means the Agreement entered into pursuant to the Act,
between a State and the Secretary of Labor of the United States, under
which the State agency of the State agrees to make payments of Disaster
Unemployment Assistance in accordance with the Act and the regulations
and procedures thereunder prescribed by the Secretary.
(c) Announcement date means the first day on which the State agency
publicly announces the availability of Disaster Unemployment Assistance
in the State, pursuant to Sec. 625.17.
(d) Compensation means unemployment compensation as defined in
section 85(b) of the Internal Revenue Code of 1986, and shall include
any assistance or allowance payable to an individual with respect to
such individual's unemployment under any State law or Federal
unemployment compensation law unless such governmental unemployment
compensation program payments are not considered ``compensation'' by
ruling of the Internal Revenue Service or specific provision of Federal
and/or State law because such payments are based on employee
contributions which are not deductible from Federal income tax liability
until the total nondeductible contributions paid by the employee to such
program has been paid or are not ``compensation'' as defined under
paragraph (d)(5) of this section. Governmental unemployment compensation
programs include (but are not limited to) programs established under: a
State law approved by the Secretary of Labor pursuant to section 3304 of
the Internal Revenue Code, chapter 85 of title 5 of the United States
Code, the Railroad Unemployment Insurance Act (45 U.S.C. 351 et seq.),
any Federal supplementary compensation law, and trade readjustment
allowances payable under chapter 2 of title II of the Trade Act of 1974
(19 U.S.C. 2271 et seq.). ``Compensation'' also includes ``regular
compensation'', ``additional compensation'', ``extended compensation'',
``Federal supplementary compensation'', and ``disability payments''
defined as follows:
(1) Regular compensation means compensation payable to an individual
under any State law or the unemployment compensation plan of a political
subdivision of a State and, when so payable, includes compensation
payable pursuant to 5 U.S.C. chapter 85 (parts 609 and 614 of this
chapter), but not including extended compensation or additional
compensation.
(2) Additional compensation means compensation totally financed by a
State and payable under a State law by reason of conditions of high
unemployment or by reason of other special factors, and, when so
payable, includes compensation payable pursuant to 5 U.S.C. chapter 85.
(3) Extended compensation means compensation payable to an
individual for weeks of unemployment in an extended benefit period,
under those provisions of a State law which satisfy the requirements of
the Federal-State Extended Unemployment Compensation Act of 1970 (title
II, Pub. L. 91-373; 84 Stat. 695, 708; part 615 of this chapter), as
amended with respect to the payment of extended compensation, and, when
so payable, includes additional compensation and compensation payable
pursuant to 5 U.S.C. chapter 85.
(4) Federal supplementary compensation means supplemental
compensation payable under a temporary Federal law after exhaustion of
regular and extended compensation.
(5) Disability payments means cash disability payments made pursuant
to a governmental program as a substitute for cash unemployment payments
to an individual who is ineligible for such payments solely because of
the disability, except for payments made under workmen's compensation
acts for personal injuries or sickness.
(e) Date the major disaster began means the date a major disaster
first occurred, as specified in the understanding between the Federal
Emergency Management Agency and the Governor of the State in which the
major disaster occurred.
(f) Disaster Assistance Period means the period beginning with the
first week following the date the major disaster began, and ending with
the 26th week subsequent to the date the major disaster was declared.
[[Page 159]]
(g) Disaster Unemployment Assistance means the assistance payable to
an individual eligible for the assistance under the Act and this part,
and which is referred to as DUA.
(h) Federal Coordinating Officer means the official appointed
pursuant to section 302 of The Robert T. Stafford Disaster Relief and
Emergency Assistance Act, to operate in the affected major disaster
area.
(i) Governor means the chief executive of a State.
(j) Initial application means the first application for DUA filed by
an individual, on the basis of which the individual's eligibility for
DUA is determined.
(k) Major disaster means a major disaster as declared by the
President pursuant to section 401 of The Robert T. Stafford Disaster
Relief and Emergency Assistance Act.
(l) Major disaster area means the area identified as eligible for
Federal assistance by the Federal Emergency Management Agency, pursuant
to a Presidential declaration of a major disaster.
(m) Secretary means the Secretary of Labor of the United States.
(n) Self-employed individual means an individual whose primary
reliance for income is on the performance of services in the
individual's own business, or on the individual's own farm.
(o) Self-employment means services performed as a self-employed
individual.
(p) State means any State of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, the United States Virgin
Islands, the Territory of Guam, American Samoa, Commonwealth of the
Northern Mariana Islands, Federated States of Micronesia, Republic of
the Marshall Islands, and the Trust Territory of the Pacific Islands.
(q) State agency means--
(1) In all States except the Territory of Guam, American Samoa,
Commonwealth of the Northern Mariana Islands, Federated States of
Micronesia, Republic of the Marshall Islands and the Trust Territory of
the Pacific Islands, the agency administering the State law; and
(2) In the Territory of Guam, American Samoa, Commonwealth of the
Northern Mariana Islands, Federated States of Micronesia, Republic of
the Marshall Islands and the Trust Territory of the Pacific Islands, the
agency designated in the Agreement entered into by the State.
(r)(1) State law means, with respect to--
(i) The States of the United States, the District of Columbia, the
Commonwealth of Puerto Rico, and the Virgin Islands, the unemployment
compensation law of the State which has been approved under section
3304(a) of the Internal Revenue Code of 1986 (26 U.S.C. 3304(a)); and
(ii) The Territory of Guam, American Samoa, Commonwealth of the
Northern Mariana Islands, Federated States of Micronesia, Republic of
the Marshall Islands and the Trust Territory of the Pacific Islands, the
Hawaii Employment Security Law.
(2) Applicable State law means, for an individual, the State law of
the applicable State for an individual as provided in Sec. 625.12.
(s) Unemployed worker means an individual who was employed in or was
to commence employment in the major disaster area at the time the major
disaster began, and whose principal source of income and livelihood is
dependent upon the individual's employment for wages, and whose
unemployment is caused by a major disaster as provided in Sec.
625.5(a).
(t) Unemployed self-employed individual means an individual who was
self-employed in or was to commence self-employment in the major
disaster area at the time the major disaster began, and whose principal
source of income and livelihood is dependent upon the individual's
performance of service in self-employment, and whose unemployment is
caused by a major disaster as provided in Sec. 625.5(b).
(u) Wages means remuneration for services performed for another,
and, with respect to a self-employed individual, net income from
services performed in self-employment.
(v) Week means a week as defined in the applicable State law.
(w) Week of unemployment means--
[[Page 160]]
(1) For an unemployed worker, any week during which the individual
is totally, part-totally, or partially unemployed. A week of total
unemployment is a week during which the individual performs no work and
earns no wages, or has less than full-time work and earns wages not
exceeding the minimum earnings allowance prescribed in the applicable
State law. A week of part-total unemployment is a week of otherwise
total unemployment during which the individual has odd jobs or
subsidiary work and earns wages not exceeding the maximum earnings
allowance prescribed in the applicable State law. A week of partial
unemployment is a week during which the individual works less than
regular, full-time hours for the individual's regular employer, as a
direct result of the major disaster, and earns wages not exceeding the
maximum earnings allowance prescribed by the applicable State law.
(2) For an unemployed self-employed individual, any week during
which the individual is totally, part-totally, or partially unemployed.
A week of total unemployment is a week during which the individual
performs no services in self-employment or in an employer-employee
relationship, or performs services less than full-time and earns wages
not exceeding the minimum earnings allowance prescribed in the
applicable State law. A week of part-total unemployment is a week of
otherwise total unemployment during which the individual has odd jobs or
subsidiary work and earns wages not exceeding the maximum earnings
allowance prescribed in the applicable State law. A week of partial
unemployment is a week during which the individual performs less than
the customary full-time services in self-employment, as a direct result
of the major disaster, and earns wages not exceeding the maximum
earnings allowance prescribed by the applicable State law, or during
which the only activities or services performed are for the sole purpose
of enabling the individual to resume self-employment.
(3) If the week of unemployment for which an individual claims DUA
is a week with respect to which the individual is reemployed in a
suitable position or has commenced services in self-employment, that
week shall be treated as a week of partial unemployment if the week
qualifies as a week of partial unemployment as defined in this
paragraph.
[42 FR 46712, Sept. 16, 1977, as amended at 55 FR 554, Jan. 5, 1990; 56
FR 22805, May 16, 1991]
Sec. 625.3 Reemployment assistance.
(a) State assistance. Except as provided in paragraph (b) of this
section, the applicable State shall provide, without reimbursement from
any funds provided under the Act, reemployment assistance services under
any other law administered by the State to individuals applying for DUA
and all other individuals who are unemployed because of a major
disaster. Such services shall include, but are not limited to,
counseling, referrals to suitable work opportunities, and suitable
training, to assist the individuals in obtaining reemployment in
suitable positions as soon as possible.
(b) Federal assistance. In the case of American Samoa, Commonwealth
of the Northern Mariana Islands, Federated States of Micronesia,
Republic of the Marshall Islands, and the Trust Territory of the Pacific
Islands, the Department of Labor, in consultation with the Federal
Emergency Management Agency, will determine what reemployment services
are needed by DUA applicants, and if any available Federal programs of
reemployment assistance services can be implemented in that
jurisdiction.
[55 FR 554, Jan. 5, 1990; as amended at 56 FR 22806, May 16, 1991]
Sec. 625.4 Eligibility requirements for Disaster Unemployment
Assistance.
An individual shall be eligible to receive a payment of DUA with
respect to a week of unemployment, in accordance with the provisions of
the Act and this part if:
(a) That week begins during a Disaster Assistance Period;
(b) The applicable State for the individual has entered into an
Agreement which is in effect with respect to that week;
[[Page 161]]
(c) The individual is an unemployed worker or an unemployed self-
employed individual;
(d) The individual's unemployment with respect to that week is
caused by a major disaster, as provided in Sec. 625.5;
(e) The individual has filed a timely initial application for DUA
and, as appropriate, a timely application for a payment of DUA with
respect to that week;
(f) That week is a week of unemployment for the individual;
(g) The individual is able to work and available for work within the
meaning of the applicable State law: Provided, That an individual shall
be deemed to meet this requirement if any injury caused by the major
disaster is the reason for inability to work or engage in self-
employment; or, in the case of an unemployed self-employed individual,
the individual performs service or activities which are solely for the
purpose of enabling the individual to resume self-employment;
(h) The individual has not refused a bona fide offer of employment
in a suitable position, or refused without good cause to resume or
commence suitable self-employment, if the employment or self-employment
could have been undertaken in that week or in any prior week in the
Disaster Assistance Period; and
(i) The individual is not eligible for compensation (as defined in
Sec. 625.2(d)) or for waiting period credit for such week under any
other Federal or State law, except that an individual determined
ineligible because of the receipt of disqualifying income shall be
considered eligible for such compensation or waiting period credit. An
individual shall be considered ineligible for compensation or waiting
period credit (and thus potentially eligible for DUA) if the individual
is under a disqualification for a cause that occurred prior to the
individual's unemployment due to the disaster, or for any other reason
is ineligible for compensation or waiting period credit as a direct
result of the major disaster.
[42 FR 46712, Sept. 16, 1977, as amended at 55 FR 555, Jan. 5, 1990]
Sec. 625.5 Unemployment caused by a major disaster.
(a) Unemployed worker. The unemployment of an unemployed worker is
caused by a major disaster if--
(1) The individual has a ``week of unemployment'' as defined in
Sec. 625.2(w)(1) following the ``date the major disaster began'' as
defined in Sec. 625.2(e), and such unemployment is a direct result of
the major disaster; or
(2) The individual is unable to reach the place of employment as a
direct result of the major disaster; or
(3) The individual was to commence employment and does not have a
job or is unable to reach the job as a direct result of the major
disaster; or
(4) The individual has become the breadwinner or major support for a
household because the head of the household has died as a direct result
of the major disaster; or
(5) The individual cannot work because of an injury caused as a
direct result of the major disaster.
(b) Unemployed self-employed individual. The unemployment of an
unemployed self-employed individual is caused by a major disaster if--
(1) The individual has a ``week of unemployment'' as defined in
Sec. 625.2(w)(2) following the ``date the major disaster began'' as
defined in Sec. 625.2(e), and such unemployment is a direct result of
the major disaster; or
(2) The individual is unable to reach the place where services as a
self-employed individual are performed, as a direct result of the major
disaster; or
(3) The individual was to commence regular services as a self-
employed individual, but does not have a place or is unable to reach the
place where the services as a self-employed individual were to be
performed, as a direct result of the major disaster; or
(4) The individual cannot perform services as a self-employed
individual because of an injury caused as a direct result of the major
disaster.
(c) Unemployment is a direct result of the major disaster. For the
purposes of paragraphs (a)(1) and (b)(1) of this section, a worker's or
self-employed individual's unemployment is a direct result of the major
disaster where the unemployment is an immediate result of the major
disaster itself, and not the
[[Page 162]]
result of a longer chain of events precipitated or exacerbated by the
disaster. Such an individual's unemployment is a direct result of the
major disaster if the unemployment resulted from:
(1) The physical damage or destruction of the place of employment;
(2) The physical inaccessibility of the place of employment in the
major disaster area due to its closure by or at the request of the
federal, state or local government, in immediate response to the
disaster; or
(3) Lack of work, or loss of revenues, provided that, prior to the
disaster, the employer, or the business in the case of a self-employed
individual, received at least a majority of its revenue or income from
an entity in the major disaster area that was either damaged or
destroyed in the disaster, or an entity in the major disaster area
closed by the federal, state or local government in immediate response
to the disaster.
[42 FR 46712, Sept. 16, 1977, as amended at 55 FR 555, Jan. 5, 1990; 56
FR 22806, May 16, 1991; 66 FR 56962, Nov. 13, 2001; 68 FR 10937, Mar. 6,
2003]
Sec. 625.6 Weekly amount; jurisdictions; reductions.
(a) In all States, except as provided in paragraphs (c) and (d) of
this section, the amount of DUA payable to an unemployed worker or
unemployed self-employed individual for a week of total unemployment
shall be the weekly amount of compensation the individual would have
been paid as regular compensation, as computed under the provisions of
the applicable State law for a week of total unemployment. In no event
shall such amount be in excess of the maximum amount of regular
compensation authorized under the applicable State law for that week.
(1) Except as provided in paragraph (a)(2) or (b) of this section,
in computing an individual's weekly amount of DUA, qualifying employment
and wage requirements and benefit formula of the applicable State law
shall be applied; and for purposes of this section, employment, wages,
and self-employment which are not covered by the applicable State law
shall be treated in the same manner and with the same effect as covered
employment and wages, but shall not include employment or self-
employment, or wages earned or paid for employment or self-employment,
which is contrary to or prohibited by any Federal law, such as, but not
limited to, section 3304(a)(14)(A) of the Federal Unemployment Tax Act
(26 U.S.C. 3304(a)(14)(A)).
(2) For purposes of paragraph (a)(1) of this section, the base
period to be utilized in computing the DUA weekly amount shall be the
most recent tax year that has ended for the individual (whether an
employee or self-employed) prior to the individual's unemployment that
was a direct result of the major disaster. The self-employment income to
be treated as wages for purposes of computing the weekly amount under
this paragraph (a) shall be the net income reported on the tax return of
the individual as income from all self-employment that was dependent
upon the performance of services by the individual. If an individual has
not filed a tax return for the most recent tax year that has ended at
the time of such individual's initial application for DUA, such
individual shall have a weekly amount determined in accordance with
paragraph (e)(3) of this section.
(3) As of the date of filing an initial application for DUA, family
members over the age of majority, as defined under the statutes of the
applicable State, who were customarily or routinely employed or self-
employed as a family unit or in the same self-employment business prior
to the individuals' unemployment that was a direct result of the major
disaster, shall have the wages from such employment or net income from
the self-employment allocated equally among such adult family members
for purposes of computing a weekly amount under this paragraph (a),
unless the documentation to substantiate employment or self-employment
and wages earned or paid for such employment or self-employment
submitted as required by paragraph (e) of this section supports a
different allocation. Family members under the age of majority as of the
date of filing an initial application for DUA shall have a weekly amount
computed under this paragraph (a) based on the actual wages earned or
paid for employment
[[Page 163]]
or self-employment rather than an equal allocation.
(b) If the weekly amount computed under paragraph (a) of this
section is less than 50 percent of the average weekly payment of regular
compensation in the State, as provided quarterly by the Department, or,
if the individual has insufficient wages from employment or insufficient
or no net income from self-employment (which includes individuals
falling within paragraphs (a)(3) and (b)(3) of Sec. 625.5) in the
applicable base period to compute a weekly amount under paragraph (a) of
this section, the individual shall be determined entitled to a weekly
amount equal to 50 percent of the average weekly payment of regular
compensation in the State.
(1) If an individual was customarily or routinely employed or self-
employed less than full-time prior to the individual's unemployment as a
direct result of the major disaster, such individual's weekly amount
under this paragraph (b)(1) shall be determined by calculating the
percent of time the individual was employed or self-employed compared to
the customary and usual hours per week that would constitute the average
per week hours for year-round full-time employment or self-employment
for the occupation, then applying the percentage to the determined 50
percent of the average weekly amount of regular compensation paid in the
State. The State agency shall utilize information furnished by the
applicant at the time of filing an initial application for DUA and any
labor market or occupational information available within the State
agency to determine the average per week hours for full-time employment
or self-employment for the occupation. If the weekly amount computed for
an individual under this paragraph (b)(1) is less than the weekly amount
computed under paragraph (a) of this section for the individual, the
individual shall be entitled to the higher weekly amount.
(2) The weekly amount so determined under paragraph (b)(1) of this
section, if not an even dollar amount, shall be rounded in accordance
with the applicable State law.
(c) In the Territory of Guam and the Commonwealth of the Northern
Mariana Islands, the amount of DUA payable to an unemployed worker or
unemployed self-employed individual for a week of total unemployment
shall be the average of the payments of regular compensation made under
all State laws referred to in Sec. 625.2(r)(1)(i) for weeks of total
unemployment in the first four of the last five completed calendar
quarters immediately preceding the quarter in which the major disaster
began. The weekly amount so determined, if not an even dollar amount,
shall be rounded to the next higher dollar.
(d) In American Samoa, Federated States of Micronesia, Republic of
the Marshall Islands and the Trust Territory of the Pacific Islands, the
amount of DUA payable to an unemployed worker or unemployed self-
employed individual for a week of total unemployment shall be the amount
agreed upon by the Regional Administrator, Employment and Training
Administration, for Region VI (San Francisco), and the Federal
Coordinating Officer, which shall approximate 50 percent of the area-
wide average of the weekly wages paid to individuals in the major
disaster area in the quarter immediately preceding the quarter in which
the major disaster began. The weekly amount so determined, if not an
even dollar amount, shall be rounded to the next higher dollar.
(e) The State agency shall immediately determine, upon the filing of
an initial application for DUA, a weekly amount under the provisions of
paragraphs (a) through (d) of this section, as the case may be, based on
the individual's statement of employment or self-employment preceding
the individual's unemployment that was a direct result of the major
disaster, and wages earned or paid for such employment or self-
employment. An immediate determination of a weekly amount shall also be
made where, in conjunction with the filing of an initial application for
DUA, the individual submits documentation substantiating employment or
self-employment and wages earned or paid for such employment or self-
employment, or, in the absence of documentation, where any State agency
records of employment or self-employment and
[[Page 164]]
wages earned or paid for such employment or self-employment, justify the
determination of a weekly amount. An immediate determination shall also
be made based on the individual's statement or in conjunction with the
submittal of documentation in those cases where the individual was to
commence employment or self-employment on or after the date the major
disaster began but was prevented from doing so as a direct result of the
disaster.
(1) In the case of a weekly amount determined in accordance with
paragraph (e) of this section, based only on the individual's statement
of earnings, the individual shall furnish documentation to substantiate
the employment or self-employment or wages earned from or paid for such
employment or self-employment or documentation to support that the
individual was to commence employment or self-employment on or after the
date the major disaster began. In either case, documentation shall be
submitted within 21 calendar days of the filing of the initial
application for DUA.
(2) Any individual who fails to submit documentation to substantiate
employment or self-employment or the planned commencement of employment
or self-employment in accordance with paragraph (e)(1) of this section,
shall be determined ineligible for the payment of DUA for any week of
unemployment due to the disaster. Any weeks for which DUA was already
paid on the application prior to the date of the determination of
ineligibility under this paragraph (e)(2) are overpaid and a
determination shall be issued in accordance with Sec. 625.14(a). In
addition, the State agency shall consider whether the individual is
subject to a disqualification for fraud in accordance with the
provisions set forth in Sec. 625.14(i).
(3) For purposes of a computation of a weekly amount under paragraph
(a) of this section, if an individual submits documentation to
substantiate employment or self-employment in accordance with paragraph
(e)(1), but not documentation of wages earned or paid during the base
period set forth in paragraph (a)(2) of this section, including those
cases where the individual has not filed a tax return for the most
recent tax year that has ended, the State agency shall immediately
redetermine the weekly amount of DUA payable to the individual in
accordance with paragraph (b) of this section.
(4) Any individual determined eligible for a weekly amount of DUA
under the provisions of paragraph (e)(3) of this section may submit
necessary documentation to substantiate wages earned or paid during the
base period set forth in paragraph (a)(2) of this section, including
those cases where the individual has not filed a tax return for the most
recent tax year that has ended, at any time prior to the end of the
disaster assistance period. A redetermination of the weekly amount
payable, as previously determined under paragraph (b) of this section,
shall immediately be made if the wages earned or paid for services
performed in employment or self-employment reflected in such
documentation is sufficient to permit a computation under paragraph (a)
of this section of a weekly amount higher than was determined under
paragraph (b) of this section. Any higher amount so determined shall be
applicable to all weeks during the disaster assistance period for which
the individual was eligible for the payment of DUA.
(f)(1) The weekly amount of DUA payable to an unemployed worker or
unemployed self-employed individual for a week of partial or part-total
unemployment shall be the weekly amount determined under paragraph (a),
(b), (c) or (d) of this section, as the case may be, reduced (but not
below zero) by the amount of wages that the individual earned in that
week as determined by applying to such wages the earnings allowance for
partial or part-total employment prescribed by the applicable State law.
(2) The weekly amount of DUA payable to an unemployed self-employed
individual for a week of unemployment shall be the weekly amount
determined under paragraph (a), (b), (c) or (d) of this section, as the
case may be, reduced (but not below zero) by the full amount of any
income received during the week for the performance of services in self-
employment, regardless of whether or not any services were performed
during the week, by applying
[[Page 165]]
the earnings allowance as set forth in paragraph (f)(1) of this section.
Notwithstanding the definition of ``wages'' for a self-employed
individual under Sec. 625.2(u), the term ``any income'' for purposes of
this paragraph (f)(2) means gross income.
[60 FR 25568, May 11, 1995, as amended at 71 FR 35516, June 21, 2006]
Sec. 625.7 Disaster Unemployment Assistance: Duration.
DUA shall be payable to an eligible unemployed worker or eligible
unemployed self-employed individual for all weeks of unemployment which
begin during a Disaster Assistance Period.
Sec. 625.8 Applications for Disaster Unemployment Assistance.
(a) Initial application. An initial application for DUA shall be
filed by an individual with the State agency of the applicable State
within 30 days after the announcement date of the major disaster as the
result of which the individual became unemployed, and on a form
prescribed by the Secretary which shall be furnished to the individual
by the State agency. An initial application filed later than 30 days
after the announcement date of the major disaster shall be accepted as
timely by the State agency if the applicant had good cause for the late
filing, but in no event shall an initial application be accepted by the
State agency if it is filed after the expiration of the Disaster
Assistance Period. If the 30th day falls on a Saturday, Sunday, or a
legal holiday in the major disaster area, the 30-day time limit shall be
extended to the next business day.
(b) Weekly applications. Applications for DUA for weeks of
unemployment shall be filed with respect to the individual's applicable
State at the times and in the manner as claims for regular compensation
are filed under the applicable State law, and on forms prescribed by the
Secretary which shall be furnished to the individual by the State
agency.
(c) Filing in person. (1) Except as provided in paragraph (c)(2) of
this section, all applications for DUA, including initial applications,
shall be filed in person.
(2) Whenever an individual has good cause for not filing any
application for DUA in person, the application shall be filed at such
time, in such place, and in such a manner as directed by the State
agency and in accordance with this part and procedures prescribed by the
Secretary.
(d) IBPP. The ``Interstate Benefit Payment Plan'' shall apply, where
appropriate, to an individual filing applications for DUA.
(e) Wage combining. The ``Interstate Arrangement for Combining
Employment and Wages'' (part 616 of this chapter) shall apply, where
appropriate, to an individual filing applications for DUA: Provided,
That the ``Paying State'' shall be the applicable State for the
individual as prescribed in Sec. 625.12.
(f) Procedural requirements. (1) The procedures for reporting and
filing applications for DUA shall be consistent with this part, and with
the Secretary's ``Standard for Claim Filing, Claimant Reporting, Job
Finding and Employment Services,'' Employment Security Manual. Part V,
sections 5000 et seq. (appendix A of this part), insofar as such
standard is not inconsistent with this part.
(2) The provisions of the applicable State law which apply hereunder
to applications for and the payment of DUA shall be applied consistent
with the requirements of title III of the Social Security Act and the
Federal Unemployment Tax Act which are pertinent in the case of regular
compensation, including but not limited to those standards and
requirements specifically referred to in the provisions of this part.
(Approved by the Office of Management and Budget under control number
1205-0051)
(Pub. L. No. 96-511)
[42 FR 46712, Sept. 16, 1977, as amended at 49 FR 18295, Apr. 30, 1984;
55 FR 555, Jan. 5, 1990]
Sec. 625.9 Determinations of entitlement; notices to individual.
(a) Determination of initial application. (1) The State agency shall
promptly, upon the filing of an initial application for DUA, determine
whether the individual is eligible, and if the individual is found to be
eligible, the weekly
[[Page 166]]
amount of DUA payable to the individual and the period during which DUA
is payable.
(2) An individual's eligibility for DUA shall be determined, where a
reliable record of employment, self-employment and wages is not
obtainable, on the basis of an affidavit submitted to the State agency
by the individual, and on a form prescribed by the Secretary which shall
be furnished to the individual by the State agency.
(b) Determinations of weekly applications. The State agency shall
promptly, upon the filing of an application for a payment of DUA with
respect to a week of unemployment, determine whether the individual is
entitled to a payment of DUA with respect to that week, and, if
entitled, the amount of DUA to which the individual is entitled.
(c) Redetermination. The provisions of the applicable State law
concerning the right to request, or authority to undertake,
reconsideration of a determination pertaining to regular compensation
under the applicable State law shall apply to determinations pertaining
to DUA.
(d) Notices to individual. The State agency shall give notice in
writing to the individual, by the most expeditious method, of any
determination or redetermination of an initial application, and of any
determination of an application for DUA with respect to a week of
unemployment which denies DUA or reduces the weekly amount initially
determined to be payable, and of any redetermination of an application
for DUA with respect to a week of unemployment. Each notice of
determination or redetermination shall include such information
regarding the determination or redetermination and notice of right to
reconsideration or appeal, or both, as is furnished with written notices
of determination and written notices of redeterminations with respect to
claims for regular compensation.
(e) Promptness. Full payment of DUA when due shall be made with the
greatest promptness that is administratively feasible.
(f) Secretary's Standard. The procedures for making determinations
and redeterminations, and furnishing written notices of determinations,
redeterminations, and rights of appeal to individuals applying for DUA,
shall be consistent with this part and with the Secretary's ``Standard
for Claim Determinations--Separation Information,'' Employment Security
Manual. Part V, sections 6010 et seq. (Appendix B of this part).
(Approved by the Office of Management and Budget under control number
1205-0051)
(Pub. L. No. 96-511)
[42 FR 46712, Sept. 16, 1977, as amended at 49 FR 18295, Apr. 30, 1984;
55 FR 555, Jan. 5, 1990]
Sec. 625.10 Appeal and review.
(a) States of the United States. (1) Any determination or
redetermination made pursuant to Sec. 625.9, by the State agency of a
State (other than the State agency of the Territory of Guam, American
Samoa, Commonwealth of the Northern Mariana Islands, Federated States of
Micronesia, Republic of the Marshall Islands, or the Trust Territory of
the Pacific Islands) may be appealed by the applicant in accordance with
the applicable State law to the first-stage administrative appellate
authority in the same manner and to the same extent as a determination
or redetermination of a right to regular compensation may be appealed
under the applicable State law, except that the period for appealing
shall be 60 days from the date the determination or redetermination is
issued or mailed instead of the appeal period provided for in the
applicable State law. Any decision on a DUA first-stage appeal must be
made and issued within 30 days after receipt of the appeal by the State.
(2) Notice of the decision on appeal, and the reasons therefor,
shall be given to the individual by delivering the notice to such
individual personally or by mailing it to the individual's last known
address, whichever is most expeditious. The decision shall contain
information as to the individual's right to review of the decision by
the appropriate Regional Administrator, Employment and Training
Administration, if requested within 15 days after the decision was
mailed or delivered in person to the individual. The notice will include
the manner of requesting such review, and the complete address
[[Page 167]]
of the Regional Administrator. Notice of the decision on appeal shall be
given also to the State agency (with the same notice of right to review)
and to the appropriate Regional Administrator.
(b) Guam, American Samoa, and the Trust Territory of the Pacific
Islands. (1) In the case of an appeal by an individual from a
determination or redetermination by the State agency of the Territory of
Guam, American Samoa, Commonwealth of the Northern Mariana Islands,
Federated States of Micronesia, Republic of the Marshall Islands, or the
Trust Territory of the Pacific Islands, the individual shall be entitled
to a hearing and decision in accordance with Sec. 625.30 of this part.
(2) Notice of the referee's decision, and the reasons therefor,
shall be given to the individual by delivering the notice to the
individual personally or by mailing it to the individual's last known
address, whichever is most expeditious. The notice of decision shall
contain information as to the individual's right to review of the
decision by the Regional Administrator, Employment and Training
Administration, for Region VI (San Francisco), and the manner of
obtaining such review, including the address of the Regional
Administrator. Notice of the decision on appeal shall be given also to
the State agency and to the Regional Administrator.
(c) Review by Regional Administrator. (1) The appropriate Regional
Administrator, Employment and Training Administration, upon request for
review by an applicant or the State agency shall, or upon the Regional
Administrator's own motion may, review a decision on appeal issued
pursuant to paragraph (a) or (b) of this section.
(2) Any request for review by an applicant or a State agency shall
be filed, and any review on the Regional Administrator's own motion
shall be undertaken, within 15 days after notice of the decision on
appeal was delivered or mailed to the individual.
(3)(i) A request for review by an individual may be filed with the
appropriate State agency, which shall forward the request to the
appropriate Regional Administrator, Employment and Training
Administration, or may be filed directly with the appropriate Regional
Administrator.
(ii) A request for review by a State agency shall be filed with the
appropriate Regional Administrator, and a copy shall be served on the
individual by delivery to the individual personally or by mail to the
individual's last known address.
(iii) When a Regional Administrator undertakes a review of a
decision on the Regional Administrator's own motion, notice thereof
shall be served promptly on the individual and the State agency.
(iv) Whenever review by a Regional Administrator is undertaken
pursuant to an appeal or on the Regional Administrator's own motion, the
State agency shall promptly forward to the Regional Administrator the
entire record of the case.
(v) Where service on the individual is required by paragraph
(c)(3)(ii) of this section, adequate proof of service shall be furnished
for the record before the Regional Administrator, and be a condition of
the Regional Administrator undertaking review pursuant to this
paragraph.
(4) The decision of the Regional Administrator on review shall be
rendered promptly, and not later than the earlier of--
(i) 45 days after the appeal is received or is undertaken by the
Regional Administrator, or
(ii) 90 days from the date the individual's appeal from the
determination or redetermination was received by the State agency.
(5) Notice of the Regional Administrator's decision shall be mailed
promptly to the last known address of the individual, to the State
agency of the applicable State, and to the Administrator, Office of
Workforce Security. The decision of the Regional Administrator shall be
the final decision under the Act and this part, unless there is further
review by the Assistant Secretary as provided in paragraph (d) of this
section.
(d) Further review by the Assistant Secretary. (1) The Assistant
Secretary for Employment and Training on his or her own motion may
review any decision by a Regional Administrator
[[Page 168]]
issued pursuant to paragraph (c) of this section.
(2) Notice of a motion for review by the Assistant Secretary shall
be given to the applicant, the State agency of the applicable State, the
appropriate Regional Administrator, and the Administrator, Office of
Workforce Security.
(3) When the Regional Administrator and the State agency are
notified of the Assistant Secretary's motion for review, they shall
forward all records in the case to the Assistant Secretary.
(4) Review by the Assistant Secretary shall be solely on the record
in the case, any other written contentions or evidence requested by the
Assistant Secretary, and any further evidence or arguments offered by
the individual, the State agency, the Regional Administrator, or the
Administrator, Office of Workforce Security, which are mailed to the
Assistant Secretary within 15 days after mailing the notice of motion
for review.
(5) Upon review of a case under this paragraph, the Assistant
Secretary may affirm, modify, or reverse the decision of the Regional
Administrator, and may remand the case for further proceedings and
decision in accordance with the Assistant Secretary's decision.
(6) The decision of the Assistant Secretary shall be made promptly,
and notice thereof shall be sent to the applicant, the State agency, the
Regional Administrator, and the Administrator, Office of Workforce
Security.
(7) The decision of the Assistant Secretary shall be final and
conclusive, and binding on all interested parties, and shall be a
precedent applicable throughout the States.
(e) Procedural requirements. (1) All decisions on first-stage
appeals from determinations or redeterminations by the State agencies
must be made within 30 days of the appeal; therefore, the Secretary's
``Standard for Appeals Promptness-Unemployment Compensation'' in part
650 of this chapter shall not apply to the DUA program.
(2) The provisions on right of appeal and opportunity for hearing
and review with respect to applications for DUA shall be consistent with
this part and with sections 303(a)(1) and 303(a)(3) of the Social
Security Act, 42 U.S.C. 503(a)(1) and 503(a)(3).
(3) Any petition or other matter required to be filed within a time
limit under this section shall be deemed to be filed at the time it is
delivered to an appropriate office, or at the time of the postmark if it
is mailed via the United States Postal Service to an appropriate office.
(4) If any limited time period specified in this section ends on a
Saturday, Sunday, or a legal holiday in the major disaster area, the
time limit shall be extended to the next business day.
[42 FR 46712, Sept. 16, 1977, as amended at 55 FR 555, Jan. 5, 1990; 56
FR 22805, May 16, 1991; 71 FR 35516, June 21, 2006]
Sec. 625.11 Provisions of State law applicable.
The terms and conditions of the State law of the applicable State
for an individual, which apply to claims for, and the payment of regular
compensation, shall apply to applications for, and the payment of, DUA
to each such individual, only as specifically set forth in the
provisions of this part.
Sec. 625.12 The applicable State for an individual.
(a) Applicable State. The applicable State for an individual shall
be that State in which the individual's unemployment is the result of a
major disaster.
(b) Limitation. DUA is payable to an individual only by an
applicable State as determined pursuant to paragraph (a) of this
section, and--
(1) Only pursuant to an Agreement entered into pursuant to the Act
and this part, and with respect to weeks in which the Agreement is in
effect; and
(2) Only with respect to weeks of unemployment that begin during a
Disaster Assistance Period.
[42 FR 46712, Sept. 16, 1977, as amended at 55 FR 556, Jan. 5, 1990; 71
FR 35516, June 21, 2006]
Sec. 625.13 Restrictions on entitlement; disqualification.
(a) Income reductions. The amount of DUA payable to an individual
for a week of unemployment, as computed pursuant to Sec. 625.6, shall
be reduced by the amount of any of the following that an individual has
received for the
[[Page 169]]
week or would receive for the week if the individual filed a claim or
application therefor and took all procedural steps necessary under the
appropriate law, contract, or policy to receive such payment:
(1) Any benefits or insurance proceed from any source not defined as
``compensation'' under Sec. 625.2(d) for loss of wages due to illness
or disability;
(2) A supplemental unemployment benefit pursuant to a collective
bargaining agreement.
(3) Private income protection insurance;
(4) Any workers' compensation by virtue of the death of the head of
the household as the result of the major disaster in the major disaster
area, prorated by weeks, if the individual has become the head of the
household and is seeking suitable work because the head of the household
died as the result of the major disaster in the major disaster area; and
(5) The prorated amount of a retirement pension or annuity under a
public or private retirement plan or system, prorated, where necessary,
by weeks, but only if, and to the extent that, such amount would be
deducted from regular compensation payable under the applicable State
law.
(6) The prorated amount of primary benefits under title II of the
Social Security Act, but only to the extent that such benefits would be
deduced from regular compensation if payable to the individual under the
applicable State law.
(b) Disqualification. (1) An individual shall not be entitled to DUA
for any week after the week in which the individual is reemployed in a
suitable position.
(2) An individual who refuses without good cause to accept a bona
fide offer of reemployment in a position suitable to the individual, or
to investigate or accept a referral to a position which is suitable to
and available to the individual, shall not be entitled to DUA with
respect to the week in which such refusal occurs or in any subsequent
week in the Disaster Assistance Period. For the purposes of this
paragraph, a position shall not be deemed to be suitable for an
individual if the circumstances present any unusual risk to the health,
safety, or morals of the individual, if it is impracticable for the
individual to accept the position, or if acceptance for the position
would, as to the individual, be inconsistent with any labor standard in
section 3304(a)(5) of the Federal Unemployment Tax Act, 26 U.S.C.
3304(a)(5), or the comparable provisions of the applicable State law.
[42 FR 46712, Sept. 16, 1977, as amended at 55 FR 556, Jan. 5, 1990]
Sec. 625.14 Overpayments; disqualification for fraud.
(a) Finding and repayment. If the State agency of the applicable
State finds that an individual has received a payment of DUA to which
the individual was not entitled under the Act and this part, whether or
not the payment was due to the individual's fault or misrepresentation,
the individual shall be liable to repay to the applicable State the
total sum of the payment to which the individual was not entitled, and
the State agency shall take all reasonable measures authorized under any
State law or Federal law to recover for the account of the United States
the total sum of the payment to which the individual was not entitled.
(b) Recovery by offset. (1) The State agency shall recover, insofar
as is possible, the amount of any outstanding overpayment of DUA made to
the individual by the State, by deductions from any DUA payable to the
individual under the Act and this part, or from any compensation payable
to the individual under any Federal unemployment compensation law
administered by the State agency, or from any assistance or allowance
payable to the individual with respect to unemployment under any other
Federal law administered by the State agency.
(2) The State agency shall also recover, insofar as possible, the
amount of any outstanding overpayment of DUA made to the individual by
another State, by deductions from any DUA payable by the State agency to
the individual under the Act and this part, or from any compensation
payable to the individual under any Federal unemployment compensation
law administered by the State agency, or from any assistance or
allowance payable to the
[[Page 170]]
individual with respect to unemployment under any other Federal law
administered by the State agency.
(3) If the State has in effect an agreement to implement the cross-
program offset provisions of section 303(g)(2) of the Social Security
Act (42 U.S.C. 503(g)(2)), the State shall apply the provisions of such
agreement to the recovery of outstanding DUA overpayments.
(c) Debts due the United States. DUA payable to an individual shall
be applied by the State agency for the recovery by offset of any debt
due to the United States from the individual, but shall not be applied
or used by the State agency in any manner for the payment of any debt of
the individual to any State or any other entity or person.
(d) Recovered overpayments. Overpayments recovered in any manner
shall be credited or returned, as the case may be, to the appropriate
account of the United States.
(e) Application of State law. Any provision of State law authorizing
waiver of recovery of overpayments of compensation shall not be
applicable to DUA.
(f) Final decision. Recovery of any overpayment of DUA shall not be
enforced by the State agency until the determination establishing the
overpayment has become final, or if appeal is taken from the
determination, until the decision after opportunity for a fair hearing
has become final.
(g) Procedural requirements. (1) The provisions of paragraphs (c),
(d), and (f) of Sec. 625.9 shall apply to determinations and
redeterminations made pursuant to this section.
(2) The provisions of Sec. 625.10 shall apply to determinations and
redeterminations made pursuant to this section.
(h) Fraud detection and prevention. Provisions in the procedures of
each State with respect to detection and prevention of fraudulent
overpayments of DUA shall be, as a minimum, commensurate with the
procedures adopted by the State with respect to regular compensation and
consistent with the Secretary's ``Standard for Fraud and Overpayment
Detection,'' Employment Security Manual, part V, sections 7510 et seq.
(Appendix C of this part).
(i) Disqualification for fraud. Any individual who, with respect to
a major disaster, makes or causes another to make a false statement or
misrepresentation of a material fact, knowing it to be false, or
knowingly fails or causes another to fail to disclose a material fact,
in order to obtain for the individual or any other person a payment of
DUA to which the individual or any other person is not entitled, shall
be disqualified as follows:
(1) If the false statement, misrepresentation, or nondisclosure
pertains to an initial application for DUA--
(i) The individual making the false statement, misrepresentation, or
nondisclosure shall be disqualified from the receipt of any DUA with
respect to that major disaster; and
(ii) If the false statement, misrepresentation, or nondisclosure was
made on behalf of another individual, and was known to such other
individual to be a false statement, misrepresentation, or nondisclosure,
such other individual shall be disqualified from the receipt of any DUA
with respect to that major disaster; and
(2) If the false statement, misrepresentation, or nondisclosure
pertains to a week for which application for a payment of DUA is made--
(i) The individual making the false statement, misrepresentation, or
nondisclosure shall be disqualified from the receipt of DUA for that
week and the first two compensable weeks in the Disaster Assistance
Period that immediately follow that week, with respect to which the
individual is otherwise entitled to a payment of DUA; and
(ii) If the false statement, misrepresentation, or nondisclosure was
made on behalf of another individual, and was known to such other
individual to be a false statement, misrepresentation, or nondisclosure,
such other individual shall be disqualified from the receipt of DUA for
that week and the first two compensable weeks in the Disaster Assistance
Period that immediately follow that week, with respect to which the
individual is otherwise entitled to a payment of DUA.
(j) Criminal penalties. The provisions of this section on recovery
of overpayments and disqualification for fraudulently claiming or
receiving any DUA
[[Page 171]]
to which an individual was not entitled under the Act and this part
shall be in addition to and shall not preclude any applicable criminal
prosecution and penalties under State or Federal law.
[42 FR 46712, Sept. 16, 1977, as amended at 55 FR 556, Jan. 5, 1990; 71
FR 35516, June 21, 2006]
Sec. 625.15 Inviolate rights to DUA.
Except as specifically provided in this part, the right of
individuals to DUA shall be protected in the same manner and to the same
extent as the rights of persons to regular unemployment compensation are
protected under the applicable State law. Such measures shall include
protection of applicants for DUA from waiver, release, assignment,
pledge, encumbrance, levy, execution, attachment, and garnishment, of
their rights to DUA. In the same manner and to the same extent,
individuals shall be protected from discrimination and obstruction in
regard to seeking, applying for and receiving any right to DUA.
Sec. 625.16 Recordkeeping; disclosure of information.
(a) Recordkeeping. Each State agency will make and maintain records
pertaining to the administration of the Act as the Secretary requires,
and will make all such records available for inspection, examination,
and audit by such Federal officials or employees as the Secretary may
designate or as may be required by law.
(b) Disclosure of information. Information in records made and
maintained by a State agency in administering the Act shall be kept
confidential, and information in such records may be disclosed only in
the same manner and to the same extent as information with respect to
regular compensation and the entitlement of individuals thereto may be
disclosed under the applicable State law, and consistently with section
303(a)(1) of the Social Security Act, 42 U.S.C. 503(a)(1). This
provision on the confidentiality of information obtained in the
administration of the Act shall not apply, however, to the United States
Department of Labor, or in the case of information, reports and studies
requested pursuant to Sec. 625.19, or where the result would be
inconsistent with the Freedom of Information Act (5 U.S.C. 552), the
Privacy Act of 1974 (5 U.S.C. 552a), or regulations of the United States
Department of Labor promulgated thereunder.
Sec. 625.17 Announcement of the beginning of a Disaster Assistance
Period.
Whenever a major disaster is declared in a State, the State agency
shall promptly announce throughout the major disaster area by all
appropriate news media that individuals who are unemployed as the result
of the major disaster may be entitled to DUA; that they should file
initial applications for DUA as soon as possible, but not later than the
30th day after the announcement date; the beginning date of the Disaster
Assistance Period; and where individuals may obtain further information
and file applications for DUA.
Sec. 625.18 Public access to Agreements.
The State agency of a State will make available to any individual or
organization a true copy of the Agreement with the State for inspection
and copying. Copies of an Agreement may be furnished on request to any
individual or organization upon payment of the same charges, if any, as
apply to the furnishing of copies of other records of the State agency.
Sec. 625.19 Information, reports and studies.
(a) Routine responses. State agencies shall furnish to the Secretary
such information and reports and make such studies as the Secretary
decides are necessary or appropriate for carrying out the purposes of
the Act and this part.
(b) Final report. In addition to such other reports as may be
required by the Secretary, within 60 days after all payments of Disaster
Unemployment Assistance as the result of a major disaster in the State
have been made, the State agency shall submit a final report to the
Secretary. A final report shall contain a narrative summary, a
chronological list of significant events, pertinent statistics about the
Disaster Unemployment Assistance provided to disaster victims, brief
statements of
[[Page 172]]
major problems encountered, discussion of lessons learned, and
suggestions for improvement of the program during future major
disasters.
(Approved by the Office of Management and Budget under control number
1205-0051)
(Pub. L. No. 96-511)
[15 FR 5886, Aug. 31, 1950; 23 FR 1267, Mar. 1, 1958, as amended at 49
FR 18295, Apr. 30, 1984]
Sec. 625.20 [Reserved]
Sec. 625.30 Appeal Procedures for Guam, American Samoa, Commonwealth
of the Northern Mariana Islands, Federated States of
Micronesia, Republic of the Marshall Islands, and the Trust
Territory of the Pacific Islands.
(a) Designation of referee. The Director of the Unemployment
Insurance Service shall designate a referee of a State agency to hear
and decide appeals under this section from determinations and
redeterminations by the State agencies of the Territory of Guam,
American Samoa, Commonwealth of the Northern Mariana Islands, Federated
States of Micronesia, Republic of the Marshall Islands, and the Trust
Territory of the Pacific Islands.
(b) Appeals to referee. (1) A DUA applicant may appeal from a
determination or redetermination issued by the State agency of the
Territory of Guam, American Samoa, Commonwealth of the Northern Mariana
Islands, Federated States of Micronesia, Republic of the Marshall
Islands, or the Trust Territory of the Pacific Islands within 60 days
after the mailing of notice and a copy of such determination or
redetermination to such applicant's last known address, or in the
absence of mailing within 60 days after delivery in person thereof to
such applicant. The appeal shall be in writing and may be filed with any
office of the State agency.
(2) Notice that an appeal has been filed may be given or mailed, in
the discretion of the referee, to any person who has offered or is
believed to have evidence with respect to the claim.
(3) An appeal shall be promptly scheduled and heard, in order that a
decision on the appeal can be issued within 30 days after receipt of the
appeal by the State agency. Written notice of hearing, specifying the
time and place thereof and those questions known to be in dispute, shall
be given or mailed to the applicant, the State agency, and any person
who has offered or is believed to have evidence with respect to the
claim 7 days or more before the hearing, except that a shorter notice
period may be used with the consent of the applicant.
(c) Conduct of hearings. Hearings before the referee shall be
informal, fair, and impartial, and shall be conducted in such manner as
may be best suited to determine the DUA applicants' right to
compensation. Hearings shall be open to the public unless sufficient
cause for a closed hearing is shown. The referee shall open a hearing by
ascertaining and summarizing the issue or issues involved in the appeal.
The applicant may examine and cross-examine witnesses, inspect
documents, and explain or rebut any evidence. An opportunity to present
argument shall be afforded such applicant, and such argument shall be
made part of the record. The referee shall give such applicant, if not
represented by counsel or other representative, every assistance that
does not interfere with the impartial discharge of the referee's duties.
The referee may examine such applicant and other witnesses to such
extent as the referee deems necessary. Any issue involved in the claim
shall be considered and passed upon even though such issue was not set
forth as a ground of appeal.
(d) Evidence. Oral or written evidence of any nature, whether or not
conforming to the legal rules of evidence, may be accepted. Any official
record of the State agency, including reports submitted in connection
with administration of the DUA program, may be included in the record if
the applicant is given an opportunity to examine and rebut the same. A
written statement under oath or affirmation may be accepted when it
appears impossible or unduly burdensome to require the attendance of a
witness, but a DUA applicant adversely affected by such a statement must
be given the opportunity to examine such statement, to comment on or
rebut any or all portions thereof, and whenever possible to cross-
examine
[[Page 173]]
a witness whose testimony has been introduced in written form by
submitting written questions to be answered in writing.
(e) Record. All oral testimony before the referee shall be taken
under oath or affirmation and a transcript thereof shall be made and
kept. Such transcript together with all exhibits, papers, and requests
filed in the proceeding shall constitute the record for decision.
(f) Withdrawal of appeal. A DUA applicant who has filed an appeal
may withdraw such appeal with the approval of the referee.
(g) Nonappearance of DUA applicant. Failure of a DUA applicant to
appear at a hearing shall not result in a decision being automatically
rendered against such applicant. The referee shall render a decision on
the basis of whatever evidence is properly before him/her unless there
appears to be a good reason for continuing the hearing. An applicant who
fails to appear at a hearing with respect to his/her appeal may within
seven days thereafter petition for a reopening of the hearing. Such
petition shall be granted if it appears to the referee that such
applicant has shown good cause for his/her failure to attend.
(h) Notice of referee's decision and further review--(1) Decision. A
copy of the referee's decision, which shall include findings and
conclusions, shall promptly be given or mailed to the applicant, the
State agency, and to the Regional Administrator, Employment and Training
Administration, for Region VI (San Francisco). The decision of the
referee shall be accompanied by an explanation of the right of such
applicant or State agency to request review by the Regional
Administrator and the time and manner in which such review may be
instituted, as provided in paragraph (a)(2) of Sec. 625.10.
(2) Time limit for decision. A decision on an appeal to a referee
under this section shall be made and issued by the referee not later
than 30 days after receipt of the appeal by the State agency.
(3) Further review. Further review by the Regional Administrator or
the Assistant Secretary with respect to an appeal under this section
shall be in accordance with paragraphs (c) and (d) of Sec. 625.10.
(i) Consolidation of appeals. The referee may consolidate appeals
and conduct joint hearings thereon where the same or substantially
similar evidence is relevant and material to the matters in issue.
Reasonable notice of consolidation and the time and place of hearing
shall be given or mailed to the applicants or their representatives, the
State agency, and to persons who have offered or are believed to have
evidence with respect to the DUA claims.
(j) Representation. A DUA applicant may be represented by counsel or
other representative in any proceedings before the referee or the
Regional Administrator. Any such representative may appear at any
hearing or take any other action which such applicant may take under
this part. The referee, for cause, may bar any person from representing
an applicant, in which event such action shall be set forth in the
record. No representative shall charge an applicant more than an amount
fixed by the referee for representing the applicant in any proceeding
under this section.
(k) Postponement, continuance, and adjournment of hearings. A
hearing before the referee shall be postponed, continued, or adjourned
when such action is necessary to afford a DUA applicant reasonable
opportunity for a fair hearing. In such case notice of the subsequent
hearing shall be given to any person who received notice of the prior
hearing.
(l) Information from agency records. Information shall be available
to a DUA applicant, either from the records of the State agency or as
obtained in any proceeding herein provided for, to the extent necessary
for proper presentation of his/her case. All requests for information
shall state the nature of the information desired as clearly as possible
and shall be in writing unless made at a hearing.
(m) Filing of decisions. Copies of all decisions of the referee
shall be kept on file at his/her office or agency for at least 3 years.
[55 FR 557, Jan. 5, 1990, as amended at 56 FR 22805, May 16, 1991; 71 FR
35516, June 21, 2006]
[[Page 174]]
Appendix A to Part 625--Standard for Claim Filing, Claimant Reporting,
Job Finding, and Employment Services
Employment Security Manual (Part V, Sections 5000-5004)
5000 Standard for Claim Filing, Claimant Reporting, Job Finding, and
Employment Services
A. Federal law requirements. Section 3304(a)(1) of the Federal
Unemployment Tax Act and section 303(a)(2) of the Social Security Act
require that a State law provide for: ``Payment of unemployment
compensation solely through public employment offices or such other
agencies as the Secretary may approve.''
Section 3304(a)(4) of the Federal Unemployment Tax Act and section
303(a)(5) of the Social Security Act require that a State law provide
for: ``Expenditure of all money withdrawn from an unemployment fund of
such State, in the payment of unemployment compensation * * *''
Section 303(a)(1) of the Social Security Act requires that the State
law provide for: ``Such methods of administration . . . as are found by
the Secretary to be reasonably calculated to insure full payment of
unemployment compensation when due.''
B. Secretary's interpretation of federal law requirements: 1. The
Secretary interprets section 3304(a)(1) of the Federal Unemployment Tax
Act and section 303(a)(2) of the Social Security Act to require that a
State law provide for payment of unemployment compensation solely
through public employment offices or claims offices administered by the
State employment security agency if such agency provides for such
coordination in the operations of its public employment offices and
claims offices as will insure (a) the payment of benefits only to
individuals who are unemployed and who are able to work and available
for work, and (b) that individuals claiming unemployment compensation
(claimants) are afforded such placement and other employment services as
are necessary and appropriate to return them to suitable work as soon as
possible.
2. The Secretary interprets all the above sections to require that a
State law provide for: a. Such contact by claimants with public
employment offices or claims offices or both, (1) as will reasonably
insure the payment of unemployment compensation only to individuals who
are unemployed and who are able to work and available for work, and (2)
that claimants are afforded such placement and other employment services
as are necessary and appropriate to facilitate their return to suitable
work as soon as possible; and b. Methods of administration which do not
unreasonably limit the opportunity of individuals to establish their
right to unemployment compensation due under such State law.
5001 Claim Filing and Claimant Reporting Requirements Designed To
Satisfy Secretary's Interpretation
A. Claim filing--total or part-total unemployment: 1. Individuals
claiming unemployment compensation for total or part-total unemployment
are required to file a claim weekly or biweekly, in person or by mail,
at a public employment office or a claims office (these terms include
offices at itinerant points) as set forth below.
2. Except as provided in paragraph 3, a claimant is required to file
in person: a. His new claim with respect to a benefit year, or his
continued claim for a waiting week or for his first compensable week of
unemployment in such year; and b. Any other claim, when requested to do
so by the claims personnel at the office at which he files his claim(s)
because questions about his right to benefits are raised by
circumstances such as the following:
(1) The conditions or circumstances of his separation from
employment;
(2) The claimant's answers to questions on mail claim(s) indicate
that he may be unable to work or that there may be undue restrictions on
his availability for work or that his search for work may be inadequate
or that he may be disqualified;
(3) The claimant's answers to questions on mail claims create
uncertainty about his credibility or indicate a lack of understanding of
the applicable requirements; or
(4) The claimant's record shows that he has previously filed a
fraudulent claim.
In such circumstances, the claimant is required to continue to file
claims in person each week (or biweekly) until the State agency
determines that filing claims in person is no longer required for the
resolution of such questions.
3. A claimant must be permitted to file a claim by mail in any of
the following circumstances: a. He is located in an area requiring the
expenditure of an unreasonable amount of time or money in traveling to
the nearest facility established by the State agency for filing claims
in person; b. Conditions make it impracticable for the agency to take
claims in person; c. He has returned to full-time work on or before the
scheduled date for his filing a claim, unless the agency makes provision
for in-person filing at a time and place that does not interfere with
his employment; d. The agency finds that he has good cause for failing
to file a claim in person.
4. A claimant who has been receiving benefits for partial
unemployment may continue to file claims as if he were a partially
unemployed worker for the first four consecutive weeks of total or part-
total unemployment
[[Page 175]]
immediately following his period of partial unemployment so long as he
remains attached to his regular employer.
B. Claim filing--partial unemployment. Each individual claiming
unemployment compensation for a week (or other claim period) during
which, because of lack of work, he is working less than his normal
customary full-time hours for his regular employer and is earning less
than the earnings limit provided in the State law, shall not be required
to file a claim for such week or other claim period earlier than 2 weeks
from the date that wages are paid for such claim period or, if a low
earnings report is required by the State law, from the date the employer
furnished such report to the individual. State agencies may permit
claims for partial unemployment to be filed either in person or by mail,
except that in the circumstances set forth in section A 3, filing by
mail must be permitted, and in the circumstances set forth in section A
2 b, filing in person may be required.
5002 Requirement for Job Finding, Placement, and other Employment
Services Designed To Satisfy Secretary's Interpretation
A. Claims personnel are required to assure that each claimant is
doing what a reasonable individual in his circumstances would do to
obtain suitable work.
B. In the discretion of the State agency: 1. The claims personnel
are required to give each claimant such necessary and appropriate
assistance as they reasonably can in finding suitable work and at their
discretion determine when more complete placement and employment
services are necessary and appropriate for a claimant; and if they
determine more complete services are necessary and appropriate, the
claims personnel are to refer him to employment service personnel in the
public employment office in which he has been filing claim(s), or, if he
has been filing in a claims office, in the public employment office most
accessible to him; or
2. All placement and employment services are required to be afforded
to each claimant by employment service personnel in the public
employment office most accessible to him in which case the claims
personnel in the office in which the claimant files his claim are to
refer him to the employment service personnel when placement or other
employment services are necessary and appropriate for him.
C. The personnel to whom the State agency assigns the
responsibilities outlined in paragraph B above are required to give
claimants such job-finding assistance, placement, and other employment
services as are necessary and appropriate to facilitate their return to
suitable work as soon as possible.
In some circumstances, no such services or only limited services may
be required. For example, if a claimant is on a short-term temporary
layoff with a fixed return date, the only service necessary and
appropriate to be given to him during the period of the layoff is a
referral to suitable temporary work if such work is being performed in
the labor market area.
Similarly, claimants whose unemployment is caused by a labor dispute
presumably will return to work with their employer as soon as the labor
dispute is settled. They generally do not need services, nor do
individuals in occupations where placement customarily is made by other
nonfee charging placement facilities such as unions and professional
associations.
Claimants who fall within the classes which ordinarily would require
limited services or no services shall, if they request placement and
employment services, be afforded such services as are necessary and
appropriate for them to obtain suitable work or to achieve their
reasonable employment goals.
On the other hand, a claimant who is permanently separated from his
job is likely to require some services. He may need only some direction
in how to get a job; he may need placement services if he is in an
occupation for which there is some demand in the labor market area; if
his occupation is outdated, he may require counseling and referral to a
suitable training course. The extent and character of the services to be
given any particular claimant may change with the length of his
unemployment and depend not only on his own circumstances and
conditions, but also on the condition of the labor market in the area.
D. Claimants are required to report to employment service personnel,
as directed, but such personnel and the claims personnel are required to
so arrange and coordinate the contracts required of a claimant as not to
place an unreasonable burden on him or unreasonably limit his
opportunity to establish his rights to compensation. As a general rule,
a claimant is not required to contact in person claims personnel or
employment service personnel more frequently than once a week, unless he
is directed to report more frequently for a specific service such as
referral to a job or a training course or counseling which cannot be
completed in one visit.
E. Employment service personnel are required to report promptly to
claims personnel in the office in which the claimant files his claim(s):
(1) his failure to apply for or accept work to which he was referred by
such personnel or when known, by any other nonfee-charging placement
facility such as a union or a professional association; and (2) any
information which becomes available to it that may have a bearing on the
claimant's ability to work or availability for work, or on the
suitability of work to which he was referred or which was offered to
him.
[[Page 176]]
5004 Evaluation of Alternative State Provisions
If the State law provisions do not conform to the ``suggested State
law requirements'' set forth in sections 5001 and 5002, but the State
law contains alternative provisions, the Manpower Administrator, in
collaboration with the State agency, will study the actual or
anticipated affect of the alternative provisions. If the Manpower
Administrator concludes that the alternative provisions satisfy the
requirements of the Federal law as construed by the Secretary (see
section 5000 B) he will so notify the State agency. If he does not so
conclude, he will submit the matter to the Secretary. If the Secretary
concludes that the alternative provisions satisfy such requirements, the
State agency will be so notified. If the Secretary concludes that there
is a question as to whether the alternative provisions satisfy such
requirements, the State agency will be advised that unless the State law
provisions are appropriately revised, a notice of hearing will be issued
as required by the Code of Federal Regulations, title 20, section 601.5.
[55 FR 558, Jan. 5, 1990]
Appendix B to Part 625--Standard for Claim Determinations--Separation
Information
Employment Security Manual (Part V, Sections 6010-6015)
6010-6019 Standard for Claim Determinations--Separation Information
6010 Federal Law Requirements. Section 303(a)(1) of the Social
Security Act requires that a State law include provision for: ``Such
methods of administration . . . as are found by the Secretary to be
reasonably calculated to insure full payment of unemployment
compensation when due.''
Section 303(a)(3) of the Social Security Act requires that a State
law include provision for: ``Opportunity for a fair hearing before an
impartial tribunal, for all individuals whose claims for unemployment
compensation are denied.''
Section 3304(a)(4) of the Federal Unemployment Tax Act and section
303(a)(5) of the Social Security Act require that a State law include
provision for: ``Expenditure of all money withdrawn from an unemployment
fund of such State, in the payment of unemployment compensation . . .
.''
Section 3306(h) of the Federal Unemployment Tax Act defines
``compensation'' as ``cash benefits payable to individuals with respect
to their unemployment.''
6011 Secretary's Interpretation of Federal Law Requirements. The
Secretary interprets the above sections to require that a State law
include provisions which will insure that: A. Individuals who may be
entitled to unemployment compensation are furnished such information as
will reasonably afford them an opportunity to know, establish, and
protect their rights under the unemployment compensation law of such
State, and
B. The State agency obtains and records in time for the prompt
determination and review of benefit claims such information as will
reasonably insure the payment of benefits to individuals to whom
benefits are due.
6012 Criteria for Review of State Law Conformity with Federal
Requirements. In determining the conformity of a State law with the
above requirements of the Federal Unemployment Tax Act and the Social
Security Act as interpreted by the Secretary, the following criteria
will be applied:
A. Is it required that individuals who may be entitled to
unemployment compensation be furnished such information of their
potential rights to benefits, including the manner and places of filing
claims, the reasons for determinations, and their rights of appeal, as
will insure them a reasonable opportunity to know, establish, and
protect their rights under the law of the State?
B. Is the State agency required to obtain, in time for prompt
determination of rights to benefits such information as will reasonably
insure the payment of benefits to individuals to whom benefits are due?
C. Is the State agency required to keep records of the facts
considered in reaching determinations of rights to benefits?
6013 Claim Determinations Requirements Designed To Meet Department of
Labor Criteria.
A. Investigation of claims. The State agency is required to obtain
promptly and prior to a determination of an individual's right to
benefits, such facts pertaining thereto as will be sufficient reasonably
to insure the payment of benefits when due.
This requirement embraces five separate elements:
1. It is the responsibility of the agency to take the initiative in
the discovery of information. This responsibility may not be passed on
to the claimant or the employer. In addition to the agency's own
records, this information may be obtained from the worker, the employer,
or other sources. If the information obtained in the first instance
discloses no essential disagreement and provides a sufficient basis for
a fair determination, no further investigation is necessary. If the
information obtained from other sources differs essentially from that
furnished by the claimant, the agency, in order to meet its
responsibility, is required to inform the claimant of such information
from other sources and to afford the claimant an opportunity to furnish
any further facts he may have.
2. Evidentiary facts must be obtained as distinguished from ultimate
facts or conclusions. That a worker was discharged for misconduct is an
ultimate fact or conclusion; that he destroyed a machine upon which he
[[Page 177]]
was working is a primary or evidentiary fact, and the sort of fact that
the requirement refers to.
3. The information obtained must be sufficient reasonably to insure
the payment of benefits when due. In general, the investigation made by
the agency must be complete enough to provide information upon which the
agency may act with reasonable assurance that its decision is consistent
with the unemployment compensation law. On the other hand, the
investigation should not be so exhaustive and time-consuming as unduly
to delay the payment of benefits and to result in excessive costs.
4. Information must be obtained promptly so that the payment of
benefits is not unduly delayed.
5. If the State agency requires any particular evidence from the
worker, it must give him a reasonable opportunity to obtain such
evidence.
B. Recording of facts. The agency must keep a written record of the
facts considered in reaching its determinations.
C. Determination notices
1. The agency must give each claimant a written notice of:
a. Any monetary determination with respect to his benefit year;
b. Any determination with respect to purging a disqualification if,
under the State law, a condition or qualification must be satisfied with
respect to each week of disqualification; but in lieu of giving written
notice of each determination for each week in which it is determined
that the claimant has met the requirements for purging, the agency may
inform the claimant that he has purged the disqualification for a week
by notation on his application identification card or otherwise in
writing.
c. Any other determination which adversely affects \1\ his rights to
benefits, except that written notice of determination need not be given
with respect to:
---------------------------------------------------------------------------
\1\ A determination ``adversely affects'' claimant's right to
benefits if it (1) results in a denial to him of benefits (including a
cancellation of benefits or wage credits or any reduction in whole or in
part below the weekly or maximum amount established by his monetary
determination) for any week or other period; or (2) denies credit for a
waiting week; or (3) applies any disqualification or penalty; or (4)
determines that he has not satisfied a condition of eligibility,
requalification for benefits, or purging a disqualification; or (5)
determines that an overpayment has been made or orders repayment or
recoupment of any sum paid to him; or (6) applies a previously
determined overpayment, penalty, or order for repayment or recoupment;
or (7) in any other way denies claimant a right to benefits under the
State law.
---------------------------------------------------------------------------
(1) A week in a benefit year for which the claimant's weekly benefit
amount is reduced in whole or in part by earnings if, the first time in
the benefit year that there is such a reduction, he is required to be
furnished a booklet or leaflet containing the information set forth
below in paragraph 2 f (1). However, a written notice of determination
is required if: (a) there is a dispute concerning the reduction with
respect to any week (e.g., as to the amount computed as the appropriate
reduction, etc.); or (b) there is a change in the State law (or in the
application thereof) affecting the reduction; or
(2) Any week in a benefit year subsequent to the first week in such
benefit year in which benefits were denied, or reduced in whole or in
part for reasons other than earnings, if denial or reduction for such
subsequent week is based on the same reason and the same facts as for
the first week, and if written notice of determination is required to be
given to the claimant with respect to such first week, and with such
notice of determination, he is required to be given a booklet or
pamphlet containing the information set forth below in paragraphs 2 f
(2) and 2 h. However, a written notice of determination is required if:
(a) there is a dispute concerning the denial or reduction of benefits
with respect to such week; or (b) there is a change in the State law (or
in the application thereof) affecting the denial or reduction; or (c)
there is a change in the amount of the reduction except as to the
balance covered by the last reduction in a series of reductions.
Note: This procedure may be applied to determinations made with
respect to any subsequent weeks for the same reason and on the basis of
the same facts: (a) that claimant is unable to work, unavailable for
work, or is disqualified under the labor dispute provision; and (b)
reducing claimant's weekly benefit amount because of income other than
earnings or offset by reason of overpayment.
2. The agency must include in written notices of determinations
furnished to claimants sufficient information to enable them to
understand the determinations, the reasons therefor, and their rights to
protest, request reconsideration, or appeal.
The written notice of monetary determination must contain the
information specified in the following items (except h) unless an item
is specifically not applicable. A written notice of any other
determination must contain the information specified in as many of the
following items as are necessary to enable the claimant to understand
the determination and to inform him of his appeal rights. Information
specifically applicable to the individual claimant must be contained in
[[Page 178]]
the written notice of determination. Information of general application
such as (but not limited to) the explanation of benefits for partial
unemployment, information as to deductions, seasonality factors, and
information as to the manner and place of taking an appeal, extension of
the appeal period, and where to obtain information and assistance may be
contained in a booklet or leaflet which is given the claimant with his
monetary determination.
a. Base period wages. The statement concerning base-period wages
must be in sufficient detail to show the basis of computation of
eligibility and weekly and maximum benefit amounts. (If maximum benefits
are allowed, it may not be necessary to show details of earnings.)
b. Employer name. The name of the employer who reported the wages is
necessary so that the worker may check the wage transcript and know
whether it is correct. If the worker is given only the employer number,
he may not be able to check the accuracy of the wage transcript.
c. Explanation of benefit formula--weekly and maximum benefit
amounts. Sufficient information must be given the worker so that he will
understand how his weekly benefit amount, including allowances for
dependents, and his maximum benefit amount were figured. If benefits are
computed by means of a table contained in the law, the table must be
furnished with the notice of determination whether benefits are granted
or denied.
The written notice of determination must show clearly the weekly
benefit amount and the maximum potential benefits to which the claimant
is entitled.
The notice to a claimant found ineligible by reason of insufficient
earnings in the base period must inform him clearly of the reason for
ineligibility. An explanation of the benefit formula contained in a
booklet or pamphlet should be given to each claimant at or prior to the
time he receives written notice of a monetary determination.
d. Benefit year. An explanation of what is meant by the benefit year
and identification of the claimant's benefit year must be included in
the notice of determination.
e. Information as to benefits for partial unemployment. There must
be included either in the written notice of determination or in a
booklet or pamphlet accompanying the notice an explanation of the
claimant's rights to partial benefits for any week with respect to which
he is working less than his normal customary full-time workweek because
of lack of work and for which he earns less than his weekly benefit
amount or weekly benefit amount plus earnings, whichever is provided by
the State law. If the explanation is contained in the notice of
determination, reference to the item in the notice in which his weekly
benefit amount is entered should be made.
f. Deductions from weekly benefits
(1) Earnings. Although written notice of determinations deducting
earnings from a claimant's weekly benefit amount is generally not
required (see paragraph 1 c(1) above), where written notice of
determination is required (or given) it shall set forth the amount of
earnings, the method of computing the deduction in sufficient detail to
enable the claimant to verify the accuracy of the deduction, and his
right to protest, request redetermination, and appeal. Where a written
notice of determination is given to the claimant because there has been
a change in the State law or in the application of the law, an
explanation of the change shall be included.
Where claimant is not required to receive a written notice of
determination, he must be given a booklet or pamphlet the first time in
his benefit year that there is a deduction for earnings which shall
include the following information:
(a) The method of computing deductions for earnings in sufficient
detail to enable the claimant to verify the accuracy of the deduction;
(b) That he will not automatically be given a written notice of
determination for a week with respect to which there is a deduction for
earnings (unless there is a dispute concerning the reduction with
respect to a week or there has been a change in the State law or in the
application of the law affecting the deduction) but that he may obtain
such a written notice upon request; and
(c) A clear statement of his right to protest, request a
redetermination, and appeal from any determination deducting earnings
from his weekly benefit amount even though he does not automatically
receive a written notice of determination; and if the State law requires
written notice of determination in order to effectuate a protest,
redetermination, or appeal, he must be so advised and advised also that
he must request a written notice of determination before he takes any
such action.
(2) Other deductions
(a) A written notice of determination is required with respect to
the first week in claimant's benefit year in which there is a reduction
from his benefits for a reason other than earnings. This notice must
describe the deduction made from claimaint's weekly benefit amount, the
reason for the deduction, the method of computing it in sufficient
detail to enable him to verify the accuracy of such deduction, and his
right to protest, request redetermination, or appeal.
(b) A written notice of determination is not required for subsequent
weeks that a deduction is made for the same reason and on the basis of
the same facts, if the notice of determination pursuant to (2)(a), or a
booklet or pamphlet given him with such notice explains (i) the several
kinds of deductions
[[Page 179]]
which may be made under the State law (e.g., retirement pensions,
vacation pay, and overpayments); (ii) the method of computing each kind
of deduction in sufficient detail that claimant will be able to verify
the accuracy of deductions made from his weekly benefit payments; (iii)
any limitation on the amount of any deduction or the time in which any
deduction may be made; (iv) that he will not automatically be given a
written notice of determination for subsequent weeks with respect to
which there is a deduction for the same reason and on the basis of the
same facts, but that he may obtain a written notice of determination
upon request; (v) his right to protest, request redetermination, or
appeal with respect to subsequent weeks for which there is a reduction
from his benefits for the same reason, and on the basis of the same
facts even though he does not automatically receive a written notice of
determination; and (vi) that if the State law requires written notice of
determination in order to effectuate a protest, redetermination, or
appeal, he must be so advised and advised also that he must request a
written notice of determination before he takes any such action.
g. Seasonality factors. If the individual's determination is
affected by seasonality factors under the State law, an adequate
explanation must be made. General explanations of seasonality factors
which may affect determinations for subsequent weeks may be included in
a booklet or pamphlet given claimant with his notice of monetary
determination.
h. Disqualification or ineligibility. If a disqualification is
imposed, or if the claimant is declared ineligible for one or more
weeks, he must be given not only a statement of the period of
disqualification or ineligibility and the amount of wage-credit
reductions, if any, but also an explanation of the reason for the
ineligibility or disqualification. This explanation must be sufficiently
detailed so that he will understand why he is ineligible or why he has
been disqualified, and what he must do in order to requalify for
benefits or purge the disqualification. The statement must be
individualized to indicate the facts upon which the determination was
based, e.g., state, ``It is found that you left your work with Blank
Company because you were tired of working; the separation was voluntary,
and the reason does not constitute good cause,'' rather than merely the
phrase ``voluntary quit.'' Checking a box as to the reason for the
disqualification is not a sufficiently detailed explanation. However,
this statement of the reason for the disqualification need not be a
restatement of all facts considered in arriving at the determination.
1. Appeal rights. The claimant must be given information with
respect to his appeal rights.
(1) The following information shall be included in the notice of
determination:
(a) A statement that he may appeal or, if the State law requires or
permits a protest or redetermination before an appeal, that he may
protest or request a redetermination.
(b) The period within which an appeal, protest, or request for
redetermination must be filed. The number of days provided by statute
must be shown as well as either the beginning date or ending date of the
period. (It is recommended that the ending date of the appeal period be
shown, as this is the more understandable of the alternatives.)
(2) The following information must be included either in the notice
of determination or in separate informational material referred to in
the notice:
(a) The manner in which the appeal, protest, or request for
redetermination must be filed, e.g., by signed letter, written
statement, or on a prescribed form, and the place or places to which the
appeal, protest, or request for redetermination may be mailed or hand-
delivered.
(b) An explanation of any circumstances (such as nonworkdays, good
cause, etc.) which will extend the period for the appeal, protest, or
request for redetermination beyond the date stated or identified in the
notice of determination.
(c) That any further information claimant may need or desire can be
obtained together with assistance in filing his appeal, protest, or
request for redetermination from the local office.
If the information is given in separate material, the notice of
determination would adequately refer to such material if it said, for
example, ``For other information about your (appeal), (protest),
(redetermination) rights, see pages ---- to ---- of the ----------------
(name of pamphlet or booklet) heretofore furnished to you.''
6014 Separation Information Requirements Designed To Meet Department of
Labor Criteria
A. Information to agency. Where workers are separated, employers are
required to furnish the agency promptly, either upon agency request or
upon such separation, a notice describing the reasons for and the
circumstances of the separation and any additional information which
might affect a claimant's right to benefits. Where workers are working
less than full time, employers are required to furnish the agency
promptly, upon agency request, information concerning a claimant's hours
of work and his wages during the claim periods involved, and other facts
which might affect a claimant's eligibility for benefits during such
periods.
When workers are separated and the notices are obtained on a request
basis, or when workers are working less than full time and the agency
requests information, it is essential to the prompt processing of
[[Page 180]]
claims that the request be sent out promptly after the claim is filed
and the employer be given a specific period within which to return the
notice, preferably within 2 working days.
When workers are separated and notices are obtained upon separation,
it is essential that the employer be required to send the notice to the
agency with sufficient promptness to insure that, if a claim is filed,
it may be processed promptly. Normally, it is desirable that such a
notice be sent to the central office of the agency, since the employer
may not know in which local office the worker will file his claim. The
usual procedure is for the employer to give the worker a copy of the
notice sent by the employer to the agency.
B. Information of worker. 1. Information required to be given.
Employers are required to give their employees information and
instructions concerning the employees' potential rights to benefits and
concerning registration for work and filing claims for benefits.
The information furnished to employees under such a requirement need
not be elaborate; it need only be adequate to insure that the worker who
is separated or who is working less than full time knows he is
potentially eligible for benefits and is informed as to what he is to do
or where he is to go to file his claim and register for work. When he
files his claim, he can obtain more detailed information.
In States that do not require employers to furnish periodically to
the State agency detailed reports of the wages paid to their employees,
each employer is required to furnish to his employees information as to
(a) the name under which he is registered by the State agency, (b) the
address where he maintains his payroll records, and (c) the workers'
need for this information if and when they file claims for benefits.
2. Methods for giving information. The information and instructions
required above may be given in any of the following ways:
a. Posters prominently displayed in the employer's establishment.
The State agency should supply employers with a sufficient number of
posters for distribution throughout their places of business and should
see that the posters are conspicuously displayed at all times.
b. Leaflets. Leaflets distributed either periodically or at the time
of separation or reduction of hours. The State agency should supply
employers with a sufficient number of leaflets.
c. Individual notices. Individual notices given to each employee at
the time of separation or reduction in hours.
It is recommended that the State agency's publicity program be used
to supplement the employer-information requirements. Such a program
should stress the availability and location of claim-filing offices and
the importance of visiting those offices whenever the worker is
unemployed, wishes to apply for benefits, and to seek a job.
6015 Evaluation of Alternative State Provisions with Respect to
Claim Determinations and Separation Information. If the State law
provisions do not conform to the suggested requirements set forth in
sections 6013 and 6014, but the State law contains alternative
provisions, the Bureau of Employment Security, in collaboration with the
State agency, will study the actual or anticipated effects of the
alternative provisions. If the Administrator of the Bureau concludes
that the alternative provisions satisfy the criteria in section 6012, he
will so notify the State agency. If the Administrator of the Bureau does
not so conclude, he will submit the matter to the Secretary. If the
Secretary concludes that the alternative provisions satisfy the criteria
in section 6012, the State agency will be so notified. If the Secretary
concludes that there is a question as to whether the alternative
provisions satisfy the criteria, the State agency will be advised that
unless the State law provisions are appropriately revised, a notice of
hearing will be issued as required by the Code of Federal Regulations,
title 20, section 601.5.
[55 FR 559, Jan. 5, 1990]
Appendix C to Part 625--Standard for Fraud and Overpayment Detection
Employment Security Manual (Part V, Sections 7510-7515)
7510-7519 Standard for Fraud and Overpayment Detection
7510 Federal Law Requirements. Section 303(a)(1) of the Social
Security Act requires that a State law include provision for:
``Such methods of administration * * * as are found by the Secretary
to be reasonably calculated to insure full payment of unemployment
compensation when due.''
Section 1603(a)(4) of the Internal Revenue Code and section
3030(a)(5) of the Social Security Act require that a State law include
provision for:
``Expenditure of all money withdrawn from an unemployment fund of
such State, in the payment of unemployment compensation * * *''
Section 1607(h) of the Internal Revenue Code defines
``compensation'' as ``cash benefits payable to individuals with respect
to their unemployment.''
7511 The Secretary's Interpretation of Federal Law Requirements. The
Secretary of Labor interprets the above sections to require that a State
law include provision for such methods of administration as are, within
reason, calculated (1) to detect benefits
[[Page 181]]
paid through error by the agency or through willful misrepresentation or
error by the claimant or others, and (2) to deter claimants from
obtaining benefits through willful misrepresentation.
7513 Criteria for Review of State Conformity With Federal
Requirements. In determining State conformity with the above
requirements of the Internal Revenue Code and the Social Security Act,
as interpreted by the Secretary of Labor, the following criteria will be
applied:
A. Are investigations required to be made after the payment of
benefits, (or, in the case of interstate claims, are investigations made
by the agent State after the processing of claims) as to claimants'
entitlement to benefits paid to them in a sufficient proportion of cases
to test the effectiveness of the agency's procedures for the prevention
of payments which are not due? To carry out investigations, has the
agency assigned to some individual or unit, as a basic function, the
responsibility of making or functionally directing such investigations?
Explanation: It is not feasible to prescribe the extent to which the
above activities are required; however, they should always be carried on
to such an extent that they will show whether or not error or willful
misrepresentation is increasing or decreasing, and will reveal problem
areas. The extent and nature of the above activities should be varied
according to the seriousness of the problem in the State. The
responsible individual or unit should:
1. Check paid claims for overpayment and investigate for willful
misrepresentation or, alternatively, advise and assist the operating
units in the performance of such functions, or both;
2. Perform consultative services with respect to methods and
procedures for the prevention and detection of fraud; and
3. Perform other services which are closely related to the above.
Although a State agency is expected to make a full-time assignment
of responsibility to a unit or individual to carry on the functions
described above, a small State agency might make these functions a part-
time responsibility of one individual. In connection with the detection
of overpayments, such a unit or individual might, for example:
(a) Investigate information on suspected benefit fraud received from
any agency personnel, and from sources outside the agency, including
anonymous complaints;
(b) Investigate information secured from comparisons of benefit
payments with employment records to detect cases of concurrent working
(whether in covered or noncovered work) and claiming of benefits
(including benefit payments in which the agency acted as agency for
another State).
The benefit fraud referred to herein may involve employers, agency
employees, and witnesses, as well as claimants.
Comparisons of benefit payments with employment records are commonly
made either by post-audit or by industry surveys. The so-called ``post-
audit'' is a matching of central office wage-record files against
benefit payments for the same period. ``Industry surveys'' or ``mass
audits'' are done in some States by going directly to employers for pay-
roll information to be checked against concurrent benefit lists. A plan
A. of investigation based on a sample post-audit will be considered
as partial fulfillment of the investigation program; it would need to be
supplemented by other methods capable of detecting overpayments to
persons who have moved into noncovered occupations or are claiming
interstate benefits.
B. Are adequate records maintained by which the results of
investigations may be evaluated?
Explanation: To meet this criterion, the State agency will be
expected to maintain records of all its activities in the detection of
overpayments, showing whether attributable to error or willful
misrepresentation, measuring the results obtained through various
methods, and noting the remedial action taken in each case. The adequacy
and effectiveness of various methods of checking for willful
misrepresentation can be evaluated only if records are kept of the
results obtained. Internal reports on fraudulent and erroneous
overpayments are needed by State agencies for self-evaluation. Detailed
records should be maintained in order that the State agency may
determine, for example, which of several methods of checking currently
used are the most productive. Such records also will provide the basis
for drawing a clear distinction between fraud and error.
C. Does the agency take adequate action with respect to publicity
concerning willful misrepresentation and its legal consequences to deter
fraud by claimants?
Explanation: To meet this criterion, the State agency must issue
adequate material on claimant eligibility requirements and must take
necessary action to obtain publicity on the legal consequences of
willful misrepresentation or willful nondisclosure of facts.
Public announcements on convictions and resulting penalties for
fraud are generally considered necessary as a deterrent to other
persons, and to inform the public that the agency is carrying on an
effective program to prevent fraud. This alone is not considered
adequate publicity. It is important that information be circulated which
will explain clearly and understandably the claimant's rights, and the
obligations which he must fulfill to be eligible for benefits. Leaflets
for distribution and posters placed in local offices are appropriate
media for such information.
7515 Evaluation of Alternative State Provisions with Respect to
Erroneous and Illegal Payments. If the methods of administration
[[Page 182]]
provided for by the State law do not conform to the suggested methods of
meeting the requirements set forth in section 7511, but a State law does
provide for alternative methods of administration designed to accomplish
the same results, the Bureau of Employment Security, in collaboration
with the State agency, will study the actual or anticipated effect of
the alternative methods of administration. If the Bureau concludes that
the alternative methods satisfy the criteria in section 7513, it will so
notify the State agency. If the Bureau does not so conclude, it will
submit to the Secretary the results of the study for his determination
of whether the State's alternative methods of administration meet the
criteria.
[55 FR 562, Jan. 5, 1990]
PARTS 626 634 [RESERVED]
PARTS 636 638 [RESERVED]
PART 639_WORKER ADJUSTMENT AND RETRAINING NOTIFICATION
Sec.
639.1 Purpose and scope.
639.2 What does WARN require?
639.3 Definitions.
639.4 Who must give notice?
639.5 When must notice be given?
639.6 Who must receive notice?
639.7 What must the notice contain?
639.8 How is the notice served?
639.9 When may notice be given less than 60 days in advance?
639.10 When may notice be extended?
Authority: 29 U.S.C. 2107(a).
Source: 54 FR 16064, Apr. 20, 1989, unless otherwise noted.
Sec. 639.1 Purpose and scope.
(a) Purpose of WARN. The Worker Adjustment and Retraining
Notification Act (WARN or the Act) provides protection to workers, their
families and communities by requiring employers to provide notification
60 calendar days in advance of plant closings and mass layoffs. Advance
notice provides workers and their families some transition time to
adjust to the prospective loss of employment, to seek and obtain
alternative jobs and, if necessary, to enter skill training or
retraining that will allow these workers to successfully compete in the
job market. WARN also provides for notice to State dislocated worker
units so that dislocated worker assistance can be promptly provided.
(b) Scope of these regulations. These regulations establish basic
definitions and rules for giving notice, implementing the provisions of
WARN. The Department's objective is to establish clear principles and
broad guidelines which can be applied in specific circumstances.
However, the Department recognizes that Federal rulemaking cannot
address the multitude of industry and company-specific situations in
which advance notice will be given.
(c) Notice encouraged where not required. Section 7 of the Act
states:
It is the sense of Congress that an employer who is not required to
comply with the notice requirements of section 3 should, to the extent
possible, provide notice to its employees about a proposal to close a
plant or permanently reduce its workforce.
(d) WARN enforcement. Enforcement of WARN will be through the
courts, as provided in section 5 of the statute. Employees, their
representatives and units of local government may initiate civil actions
against employers believed to be in violation of Sec. 3 of the Act. The
Department of Labor has no legal standing in any enforcement action and,
therefore, will not be in a position to issue advisory opinions of
specific cases. The Department will provide assistance in understanding
these regulations and may revise them from time to time as may be
necessary.
(e) Notice in ambiguous situations. It is civically desirable and it
would appear to be good business practice for an employer to provide
advance notice to its workers or unions, local government and the State
when terminating a significant number of employees. In practical terms,
there are some questions and ambiguities of interpretation inherent in
the application of WARN to business practices in the market economy that
cannot be addressed in these regulations. It is therefore prudent for
employers to weigh the desirability of advance notice against the
possibility of expensive and time-consuming litigation to resolve
disputes where notice has not been given. The Department encourages
employers to give notice in all circumstances.
(f) Coordination with job placement and retraining programs. The
Department, through these regulations and through
[[Page 183]]
the Trade Adjustment Assistance Program (TAA) and Economic Dislocation
and Worker Adjustment Assistance Act (EDWAA) regulations, encourages
maximum coordination of the actions and activities of these programs to
assure that the negative impact of dislocation on workers is lessened to
the extent possible. By providing for notice to the State dislocated
worker unit, WARN notice begins the process of assisting workers who
will be dislocated.
(g) WARN not to supersede other laws and contracts. The provisions
of WARN do not supersede any laws or collective bargaining agreements
that provide for additional notice or additional rights and remedies. If
such law or agreement provides for a longer notice period, WARN notice
shall run concurrently with that additional notice period. Collective
bargaining agreements may be used to clarify or amplify the terms and
conditions of WARN, but may not reduce WARN rights.
Sec. 639.2 What does WARN require?
WARN requires employers who are planning a plant closing or a mass
layoff to give affected employees at least 60 days' notice of such an
employment action. While the 60-day period is the minimum for advance
notice, this provision is not intended to discourage employers from
voluntarily providing longer periods of advance notice. Not all plant
closings and layoffs are subject to the Act, and certain employment
thresholds must be reached before the Act applies. WARN sets out
specific exemptions, and provides for a reduction in the notification
period in particular circumstances. Damages and civil penalties can be
assessed against employers who violate the Act.
Sec. 639.3 Definitions.
(a) Employer. (1) The term ``employer'' means any business
enterprise that employs--
(i) 100 or more employees, excluding part-time employees; or
(ii) 100 or more employees, including part-time employees, who in
the aggregate work at least 4,000 hours per week, exclusive of hours of
overtime.
Workers on temporary layoff or on leave who have a reasonable
expectation of recall are counted as employees. An employee has a
``reasonable expectation of recall'' when he/she understands, through
notification or through industry practice, that his/her employment with
the employer has been temporarily interrupted and that he/she will be
recalled to the same or to a similar job. The term ``employer'' includes
non-profit organizations of the requisite size. Regular Federal, State,
local and federally recognized Indian tribal governments are not
covered. However, the term ``employer'' includes public and quasi-public
entities which engage in business (i.e., take part in a commercial or
industrial enterprise, supply a service or good on a mercantile basis,
or provide independent management of public assets, raising revenue and
making desired investments), and which are separately organized from the
regular government, which have their own governing bodies and which have
independent authority to manage their personnel and assets.
(2) Under existing legal rules, independent contractors and
subsidiaries which are wholly or partially owned by a parent company are
treated as separate employers or as a part of the parent or contracting
company depending upon the degree of their independence from the parent.
Some of the factors to be considered in making this determination are
(i) common ownership, (ii) common directors and/or officers, (iii) de
facto exercise of control, (iv) unity of personnel policies emanating
from a common source, and (v) the dependency of operations.
(3) Workers, other than part-time workers, who are exempt from
notice under section 4 of WARN are nonetheless counted as employees for
purposes of determining coverage as an employer.
(4) An employer may have one or more sites of employment under
common ownership or control. An example would be a major auto maker
which has dozens of automobile plants throughout the country. Each plant
would be considered a site of employment, but there is only one
``employer'', the auto maker.
(b) Plant closing. The term ``plant closing'' means the permanent or
temporary shutdown of a ``single site of
[[Page 184]]
employment'', or one or more ``facilities or operating units'' within a
single site of employment, if the shutdown results in an ``employment
loss'' during any 30-day period at the single site of employment for 50
or more employees, excluding any part-time employees. An employment
action that results in the effective cessation of production or the work
performed by a unit, even if a few employees remain, is a shutdown. A
``temporary shutdown'' triggers the notice requirement only if there are
a sufficient number of terminations, layoffs exceeding 6 months, or
reductions in hours of work as specified under the definition of
``employment loss.''
(c) Mass layoff. (1) The term ``mass layoff'' means a reduction in
force which first, is not the result of a plant closing, and second,
results in an employment loss at the single site of employment during
any 30-day period for:
(i) At least 33 percent of the active employees, excluding part-time
employees, and
(ii) At least 50 employees, excluding part-time employees.
Where 500 or more employees (excluding part-time employees) are
affected, the 33% requirement does not apply, and notice is required if
the other criteria are met. Plant closings involve employment loss which
results from the shutdown of one or more distinct units within a single
site or the entire site. A mass layoff involves employment loss,
regardless of whether one or more units are shut down at the site.
(2) Workers, other than part-time workers, who are exempt from
notice under section 4 of WARN are nonetheless counted as employees for
purposes of determining coverage as a plant closing or mass layoff. For
example, if an employer closes a temporary project on which 10 permanent
and 40 temporary workers are employed, a covered plant closing has
occurred although only 10 workers are entitled to notice.
(d) Representative. The term ``representative'' means an exclusive
representative of employees within the meaning of section 9(a) or 8(f)
of the National Labor Relations Act or section 2 of the Railway Labor
Act.
(e) Affected employees. The term ``affected employees'' means
employees who may reasonably be expected to experience an employment
loss as a consequence of a proposed plant closing or mass layoff by
their employer. This includes individually identifiable employees who
will likely lose their jobs because of bumping rights or other factors,
to the extent that such individual workers reasonably can be identified
at the time notice is required to be given. The term ``affected
employees'' includes managerial and supervisory employees, but does not
include business partners. Consultant or contract employees who have a
separate employment relationship with another employer and are paid by
that other employer, or who are self-employed, are not ``affected
employees'' of the business to which they are assigned. In addition, for
purposes of determining whether coverage thresholds are met, either
incumbent workers in jobs being eliminated or, if known 60 days in
advance, the actual employees who suffer an employment loss may be
counted.
(f) Employment loss. (1) The term ``employment loss'' means (i) an
employment termination, other than a discharge for cause, voluntary
departure, or retirement, (ii) a layoff exceeding 6 months, or (iii) a
reduction in hours of work of individual employees of more than 50%
during each month of any 6-month period.
(2) Where a termination or a layoff (see paragraphs (f)(1)(i) and
(ii) of this section) is involved, an employment loss does not occur
when an employee is reassigned or transferred to employer-sponsored
programs, such as retraining or job search activities, as long as the
reassignment does not constitute a constructive discharge or other
involuntary termination.
(3) An employee is not considered to have experienced an employment
loss if the closing or layoff is the result of the relocation or
consolidation of part or all of the employer's business and, prior to
the closing or layoff--
(i) The employer offers to transfer the employee to a different site
of employment within a reasonable commuting distance with no more than a
6-month break in employment, or
(ii) The employer offers to transfer the employee to any other site
of employment regardless of distance with
[[Page 185]]
no more than a 6-month break in employment, and the employee accepts
within 30 days of the offer or of the closing or layoff, whichever is
later.
(4) A ``relocation or consolidation'' of part or all of an
employer's business, for purposes of paragraph Sec. 639.3(h)(4), means
that some definable business, whether customer orders, product lines, or
operations, is transferred to a different site of employment and that
transfer results in a plant closing or mass layoff.
(g) Unit of local government. The term ``unit of local government''
means any general purpose political subdivision of a State, which has
the power to levy taxes and spend funds and which also has general
corporate and police powers. When a covered employment site is located
in more than one unit of local government, the employer must give notice
to the unit to which it determines it directly paid the highest taxes
for the year preceding the year for which the determination is made. All
local taxes directly paid to the local government should be aggregated
for this purpose.
(h) Part-time employee. The term ``part-time'' employee means an
employee who is employed for an average of fewer than 20 hours per week
or who has been employed for fewer than 6 of the 12 months preceding the
date on which notice is required, including workers who work full-time.
This term may include workers who would traditionally be understood as
``seasonal'' employees. The period to be used for calculating whether a
worker has worked ``an average of fewer than 20 hours per week'' is the
shorter of the actual time the worker has been employed or the most
recent 90 days.
(i) Single site of employment. (1) A single site of employment can
refer to either a single location or a group of contiguous locations.
Groups of structures which form a campus or industrial park, or separate
facilities across the street from one another, may be considered a
single site of employment.
(2) There may be several single sites of employment within a single
building, such as an office building, if separate employers conduct
activities within such a building. For example, an office building
housing 50 different businesses will contain 50 single sites of
employment. The offices of each employer will be its single site of
employment.
(3) Separate buildings or areas which are not directly connected or
in immediate proximity may be considered a single site of employment if
they are in reasonable geographic proximity, used for the same purpose,
and share the same staff and equipment. An example is an employer who
manages a number of warehouses in an area but who regularly shifts or
rotates the same employees from one building to another.
(4) Non-contiguous sites in the same geographic area which do not
share the same staff or operational purpose should not be considered a
single site. For example, assembly plants which are located on opposite
sides of a town and which are managed by a single employer are separate
sites if they employ different workers.
(5) Contiguous buildings owned by the same employer which have
separate management, produce different products, and have separate
workforces are considered separate single sites of employment.
(6) For workers whose primary duties require travel from point to
point, who are outstationed, or whose primary duties involve work
outside any of the employer's regular employment sites (e.g., railroad
workers, bus drivers, salespersons), the single site of employment to
which they are assigned as their home base, from which their work is
assigned, or to which they report will be the single site in which they
are covered for WARN purposes.
(7) Foreign sites of employment are not covered under WARN. U.S.
workers at such sites are counted to determine whether an employer is
covered as an employer under Sec. 639.3(a).
(8) The term ``single site of employment'' may also apply to truly
unusual organizational situations where the above criteria do not
reasonably apply. The application of this definition with the intent to
evade the purpose of the Act to provide notice is not acceptable.
(j) Facility or operating unit. The term ``facility'' refers to a
building or buildings. The term ``operating unit'' refers to an
organizationally or operationally distinct product, operation, or
specific
[[Page 186]]
work function within or across facilities at the single site.
(k) State dislocated worker unit. The term ``State dislocated worker
unit'' means a unit designated or created in each State by the Governor
under title III of the Job Training Partnership Act, as amended by
EDWAA.
(l) State. For the purpose of WARN, the term ``State'' includes the
50 States, the District of Columbia, the Commonwealth of Puerto Rico,
and the U.S. Virgin Islands.
Sec. 639.4 Who must give notice?
Section 3(a) of WARN states that ``an employer shall not order a
plant closing or mass layoff until the end of a 60-day period after the
employer serves written notice of such an order * * *.'' Therefore, an
employer who is anticipating carrying out a plant closing or mass layoff
is required to give notice to affected employees or their
representative(s), the State dislocated worker unit and the chief
elected official of a unit of local government. (See definitions in
Sec. 639.3 of this part.)
(a) It is the responsibility of the employer to decide the most
appropriate person within the employer's organization to prepare and
deliver the notice to affected employees or their representative(s), the
State dislocated worker unit and the chief elected official of a unit of
local government. In most instances, this may be the local site plant
manager, the local personnel director or a labor relations officer.
(b) An employer who has previously announced and carried out a
short-term layoff (6 months or less) which is being extended beyond 6
months due to business circumstances (including unforeseeable changes in
price or cost) not reasonably foreseeable at the time of the initial
layoff is required to give notice when it becomes reasonably foreseeable
that the extension is required. A layoff extending beyond 6 months from
the date the layoff commenced for any other reason shall be treated as
an employment loss from the date of its commencement.
(c) In the case of the sale of part or all of a business, section
2(b)(1) of WARN defines who the ``employer'' is. The seller is
responsible for providing notice of any plant closing or mass layoff
which takes place up to and including the effective date (time) of the
sale, and the buyer is responsible for providing notice of any plant
closing or mass layoff that takes place thereafter. Affected employees
are always entitled to notice; at all times the employer is responsible
for providing notice.
(1) If the seller is made aware of any definite plans on the part of
the buyer to carry out a plant closing or mass layoff within 60 days of
purchase, the seller may give notice to affected employees as an agent
of the buyer, if so empowered. If the seller does not give notice, the
buyer is, nevertheless, responsible to give notice. If the seller gives
notice as the buyer's agent, the responsibility for notice still remains
with the buyer.
(2) It may be prudent for the buyer and seller to determine the
impacts of the sale on workers, and to arrange between them for advance
notice to be given to affected employees or their representative(s), if
a mass layoff or plant closing is planned.
Sec. 639.5 When must notice be given?
(a) General rule. (1) With certain exceptions discussed in
paragraphs (b), (c) and (d) of this section and in Sec. 639.9 of this
part, notice must be given at least 60 calendar days prior to any
planned plant closing or mass layoff, as defined in these regulations.
When all employees are not terminated on the same date, the date of the
first individual termination within the statutory 30-day or 90-day
period triggers the 60-day notice requirement. A worker's last day of
employment is considered the date of that worker's layoff. The first and
each subsequent group of terminees are entitled to a full 60 days'
notice. In order for an employer to decide whether issuing notice is
required, the employer should--
(i) Look ahead 30 days and behind 30 days to determine whether
employment actions both taken and planned will, in the aggregate for any
30-day period, reach the minimum numbers for a plant closing or a mass
layoff and thus trigger the notice requirement; and
(ii) Look ahead 90 days and behind 90 days to determine whether
employment actions both taken and planned
[[Page 187]]
each of which separately is not of sufficient size to trigger WARN
coverage will, in the aggregate for any 90-day period, reach the minimum
numbers for a plant closing or a mass layoff and thus trigger the notice
requirement. An employer is not, however, required under section 3(d) to
give notice if the employer demonstrates that the separate employment
losses are the result of separate and distinct actions and causes, and
are not an attempt to evade the requirements of WARN.
(2) The point in time at which the number of employees is to be
measured for the purpose of determining coverage is the date the first
notice is required to be given. If this ``snapshot'' of the number of
employees employed on that date is clearly unrepresentative of the
ordinary or average employment level, then a more representative number
can be used to determine coverage. Examples of unrepresentative
employment levels include cases when the level is near the peak or
trough of an employment cycle or when large upward or downward shifts in
the number of employees occur around the time notice is to be given. A
more representative number may be an average number of employees over a
recent period of time or the number of employees on an alternative date
which is more representative of normal employment levels. Alternative
methods cannot be used to evade the purpose of WARN, and should only be
used in unusual circumstances.
(b) Transfers. (1) Notice is not required in certain cases involving
transfers, as described under the definition of ``employment loss'' at
Sec. 639.3(f) of this part.
(2) An offer of reassignment to a different site of employment
should not be deemed to be a ``transfer'' if the new job constitutes a
constructive discharge.
(3) The meaning of the term ``reasonable commuting distance'' will
vary with local and industry conditions. In determining what is a
``reasonable commuting distance'', consideration should be given to the
following factors: geographic accessibility of the place of work, the
quality of the roads, customarily available transportation, and the
usual travel time.
(4) In cases where the transfer is beyond reasonable commuting
distance, the employer may become liable for failure to give notice if
an offer to transfer is not accepted within 30 days of the offer or of
the closing or layoff (whichever is later). Depending upon when the
offer of transfer was made by the employer, the normal 60-day notice
period may have expired and the plant closing or mass layoff may have
occurred. An employer is, therefore, well advised to provide 60-day
advance notice as part of the transfer offer.
(c) Temporary employment. (1) No notice is required if the closing
is of a temporary facility, or if the closing or layoff is the result of
the completion of a particular project or undertaking, and the affected
employees were hired with the understanding that their employment was
limited to the duration of the facility or the project or undertaking.
(2) Employees must clearly understand at the time of hire that their
employment is temporary. When such understandings exist will be
determined by reference to employment contracts, collective bargaining
agreements, or employment practices of an industry or a locality, but
the burden of proof will lie with the employer to show that the
temporary nature of the project or facility was clearly communicated
should questions arise regarding the temporary employment
understandings.
(3) Employers in agriculture and construction frequently hire
workers for harvesting, processing, or for work on a particular building
or project. Such work may be seasonal but recurring. Such work falls
under this exemption if the workers understood at the time they were
hired that their work was temporary. In uncertain situations, it may be
prudent for employers to clarify temporary work understandings in
writing when workers are hired. The same employers may also have
permanent employees who work on a variety of jobs and tasks continuously
through most of the calendar year. Such employees are not included under
this exemption. Giving written notice that a project is temporary will
not convert
[[Page 188]]
permanent employment into temporary work, making jobs exempt from WARN.
(4) Certain jobs may be related to a specific contract or order.
Whether such jobs are temporary depends on whether the contract or order
is part of a long-term relationship. For example, an aircraft
manufacturer hires workers to produce a standard airplane for the U.S.
fleet under a contract with the U.S. Air Force with the expectation that
its contract will continue to be renewed during the foreseeable future.
The employees of this manufacturer would not be considered temporary.
(d) Strikes or lockouts. The statute provides an exemption for
strikes and lockouts which are not intended to evade the requirements of
the Act. A lockout occurs when, for tactical or defensive reasons during
the course of collective bargaining or during a labor dispute, an
employer lawfully refuses to utilize some or all of its employees for
the performance of available work. A lockout not related to collective
bargaining which is intended as a subterfuge to evade the Act does not
qualify for this exemption. A plant closing or mass layoff at a site of
employment where a strike or lockout is taking place, which occurs for
reasons unrelated to a strike or lockout, is not covered by this
exemption. An employer need not give notice when permanently replacing a
person who is deemed to be an economic striker under the National Labor
Relations Act. Non-striking employees at the same single site of
employment who experience a covered employment loss as a result of a
strike are entitled to notice; however, situations in which a strike or
lockout affects non-striking employees at the same plant may constitute
an unforeseeable business circumstance, as discussed in Sec. 639.9, and
reduced notice may apply. Similarly, the ``faltering company''
exception, also discussed in Sec. 639.9 may apply in strike situations.
Where a union which is on strike represents more than one bargaining
unit at the single site, non-strikers includes the non-striking
bargaining unit(s). Notice also is due to those workers who are not a
part of the bargaining unit(s) which is involved in the labor
negotiations that led to the lockout. Employees at other plants which
have not been struck, but at which covered plant closings or mass
layoffs occur as a direct or indirect result of a strike or lockout are
not covered by the strike/lockout exemption. The unforeseeable business
circumstances exception to 60 days' notice also may apply to these
closings or layoffs at other plants.
Sec. 639.6 Who must receive notice?
Section 3(a) of WARN provides for notice to each representative of
the affected employees as of the time notice is required to be given or,
if there is no such representative at that time, to each affected
employee. Notice also must be served on the State dislocated worker unit
and the chief elected official of the unit of local government within
which a closing or layoff is to occur. Section 2(b)(1) of the Act states
that ``any person who is an employee of the seller (other than a
parttime employee) as of the effective date [time] of the sale shall be
considered an employee of the purchaser immediately after the effective
date [time] of the sale.'' This provision preserves the notice rights of
the employees of a business that has been sold, but creates no other
employment rights. Although a technical termination of the seller's
employees may be deemed to have occurred when a sale becomes effective,
WARN notice is only required where the employees, in fact, experience a
covered employment loss.
(a) Representative(s) of affected employees. Written notice is to be
served upon the chief elected officer of the exclusive representative(s)
or bargaining agent(s) of affected employees at the time of the notice.
If this person is not the same as the officer of the local union(s)
representing affected employees, it is recommended that a copy also be
given to the local union official(s).
(b) Affected employees. Notice is required to be given to employees
who may reasonably be expected to experience an employment loss. This
includes employees who will likely lose their jobs because of bumping
rights or other factors, to the extent that such workers can be
identified at the time notice is required to be given. If, at the time
notice is required to be given, the employer cannot identify the
employee
[[Page 189]]
who may reasonably be expected to experience an employment loss due to
the elimination of a particular position, the employer must provide
notice to the incumbent in that position. While part-time employees are
not counted in determining whether plant closing or mass layoff
thresholds are reached, such workers are due notice.
(c) State dislocated worker unit. Notice is to be served upon the
State dislocated worker unit. Since the States are restructuring to
implement training under EDWAA, service of notice upon the State
Governor constitutes service upon the State dislocated worker unit until
such time as the Governor makes public State procedures for serving
notice to this unit.
(d) Chief elected official of the unit of local government. The
identity of the chief elected official will vary according to the local
government structure. In the case of elected boards, the notice is to be
served upon the board's chairperson.
Sec. 639.7 What must the notice contain?
(a) Notice must be specific. (1) All notice must be specific.
(2) Where voluntary notice has been given more than 60 days in
advance, but does not contain all of the required elements set out in
this section, the employer must ensure that all of the information
required by this section is provided in writing to the parties listed in
Sec. 639.6 at least 60 days in advance of a covered employment action.
(3) Notice may be given conditional upon the occurrence or
nonoccurrence of an event, such as the renewal of a major contract, only
when the event is definite and the consequences of its occurrence or
nonoccurrence will necessarily, in the normal course of business, lead
to a covered plant closing or mass layoff less than 60 days after the
event. For example, if the non-renewal of a major contract will lead to
the closing of the plant that produces the articles supplied under the
contract 30 days after the contract expires, the employer may give
notice at least 60 days in advance of the projected closing date which
states that if the contract is not renewed, the plant closing will occur
on the projected date. The notice must contain each of the elements set
out in this section.
(4) The information provided in the notice shall be based on the
best information available to the employer at the time the notice is
served. It is not the intent of the regulations, that errors in the
information provided in a notice that occur because events subsequently
change or that are minor, inadvertent errors are to be the basis for
finding a violation of WARN.
(b) As used in this section, the term ``date'' refers to a specific
date or to a 14-day period during which a separation or separations are
expected to occur. If separations are planned according to a schedule,
the schedule should indicate the specific dates on which or the
beginning date of each 14-day period during which any separations are
expected to occur. Where a 14-day period is used, notice must be given
at least 60 days in advance of the first day of the period.
(c) Notice to each representative of affected employees is to
contain:
(1) The name and address of the employment site where the plant
closing or mass layoff will occur, and the name and telephone number of
a company official to contact for further information;
(2) A statement as to whether the planned action is expected to be
permanent or temporary and, if the entire plant is to be closed, a
statement to that effect;
(3) The expected date of the first separation and the anticipated
schedule for making separations;
(4) The job titles of positions to be affected and the names of the
workers currently holding affected jobs.
The notice may include additional information useful to the employees
such as information on available dislocated worker assistance, and, if
the planned action is expected to be temporary, the estimated duration,
if known.
(d) Notice to each affected employee who does not have a
representative is to be written in language understandable to the
employees and is to contain:
(1) A statement as to whether the planned action is expected to be
permanent or temporary and, if the entire
[[Page 190]]
plant is to be closed, a statement to that effect;
(2) The expected date when the plant closing or mass layoff will
commence and the expected date when the individual employee will be
separated;
(3) An indication whether or not bumping rights exist;
(4) The name and telephone number of a company official to contact
for further information.
The notice may include additional information useful to the employees
such as information on available dislocated worker assistance, and, if
the planned action is expected to be temporary, the estimated duration,
if known.
(e) The notices separately provided to the State dislocated worker
unit and to the chief elected official of the unit of local government
are to contain:
(1) The name and address of the employment site where the plant
closing or mass layoff will occur, and the name and telephone number of
a company official to contact for further information;
(2) A statement as to whether the planned action is expected to be
permanent or temporary and, if the entire plant is to be closed, a
statement to that effect;
(3) The expected date of the first separation, and the anticipated
schedule for making separations;
(4) The job titles of positions to be affected, and the number of
affected employees in each job classification;
(5) An indication as to whether or not bumping rights exist;
(6) The name of each union representing affected employees, and the
name and address of the chief elected officer of each union.
The notice may include additional information useful to the employees
such as a statement of whether the planned action is expected to be
temporary and, if so, its expected duration.
(f) As an alternative to the notices outlined in paragraph (e)
above, an employer may give notice to the State dislocated worker unit
and to the unit of local government by providing them with a written
notice stating the name of address of the employment site where the
plant closing or mass layoff will occur; the name and telephone number
of a company official to contact for further information; the expected
date of the first separation; and the number of affected employees. The
employer is required to maintain the other information listed in Sec.
639.7(e) on site and readily accessible to the State disclocated worker
unit and to the unit of general local government. Should this
information not be available when requested, it will be deemed a failure
to give required notice.
Sec. 639.8 How is the notice served?
Any reasonable method of delivery to the parties listed under Sec.
639.6 of this part which is designed to ensure receipt of notice of
least 60 days before separation is acceptable (e.g., first class mail,
personal delivery with optional signed receipt). In the case of
notification directly to affected employees, insertion of notice into
pay envelopes is another viable option. A ticketed notice, i.e.,
preprinted notice regularly included in each employee's pay check or pay
envelope, does not meet the requirements of WARN.
Sec. 639.9 When may notice be given less than 60 days in advance?
Section 3(b) of WARN sets forth three conditions under which the
notification period may be reduced to less than 60 days. The employer
bears the burden of proof that conditions for the exceptions have been
met. If one of the exceptions is applicable, the employer must give as
much notice as is practicable to the union, non-represented employees,
the State dislocated worker unit, and the unit of local government and
this may, in some circumstances, be notice after the fact. The employer
must, at the time notice actually is given, provide a brief statement of
the reason for reducing the notice period, in addition to the other
elements set out in Sec. 639.7.
(a) The exception under section 3(b)(1) of WARN, termed ``faltering
company'', applies to plant closings but not to mass layoffs and should
be narrowly construed. To qualify for reduced notice under this
exception:
(1) An employer must have been actively seeking capital or business
at the time that 60-day notice would have been required. That is, the
employer must have been seeking financing or
[[Page 191]]
refinancing through the arrangement of loans, the issuance of stocks,
bonds, or other methods of internally generated financing; or the
employer must have been seeking additional money, credit, or business
through any other commercially reasonable method. The employer must be
able to identify specific actions taken to obtain capital or business.
(2) There must have been a realistic opportunity to obtain the
financing or business sought.
(3) The financing or business sought must have been sufficient, if
obtained, to have enabled the employer to avoid or postpone the
shutdown. The employer must be able to objectively demonstrate that the
amount of capital or the volume of new business sought would have
enabled the employer to keep the facility, operating unit, or site open
for a reasonable period of time.
(4) The employer reasonably and in good faith must have believed
that giving the required notice would have precluded the employer from
obtaining the needed capital or business. The employer must be able to
objectively demonstrate that it reasonably thought that a potential
customer or source of financing would have been unwilling to provide the
new business or capital if notice were given, that is, if the employees,
customers, or the public were aware that the facility, operating unit,
or site might have to close. This condition may be satisfied if the
employer can show that the financing or business source would not choose
to do business with a troubled company or with a company whose workforce
would be looking for other jobs. The actions of an employer relying on
the ``faltering company'' exception will be viewed in a company-wide
context. Thus, a company with access to capital markets or with cash
reserves may not avail itself of this exception by looking solely at the
financial condition of the facility, operating unit, or site to be
closed.
(b) The ``unforeseeable business circumstances'' exception under
section 3(b)(2)(A) of WARN applies to plant closings and mass layoffs
caused by business circumstances that were not reasonably foreseeable at
the time that 60-day notice would have been required.
(1) An important indicator of a business circumstance that is not
reasonably foreseeable is that the circumstance is caused by some
sudden, dramatic, and unexpected action or condition outside the
employer's control. A principal client's sudden and unexpected
termination of a major contract with the employer, a strike at a major
supplier of the employer, and an unanticipated and dramatic major
economic downturn might each be considered a business circumstance that
is not reasonably foreseeable. A government ordered closing of an
employment site that occurs without prior notice also may be an
unforeseeable business circumstance.
(2) The test for determining when business circumstances are not
reasonably foreseeable focuses on an employer's business judgment. The
employer must exercise such commercially reasonable business judgment as
would a similarly situated employer in predicting the demands of its
particular market. The employer is not required, however, to accurately
predict general economic conditions that also may affect demand for its
products or services.
(c) The ``natural disaster'' exception in section 3(b)(2)(B) of WARN
applies to plant closings and mass layoffs due to any form of a natural
disaster.
(1) Floods, earthquakes, droughts, storms, tidal waves or tsunamis
and similar effects of nature are natural disasters under this
provision.
(2) To qualify for this exception, an employer must be able to
demonstrate that its plant closing or mass layoff is a direct result of
a natural disaster.
(3) While a disaster may preclude full or any advance notice, such
notice as is practicable, containing as much of the information required
in Sec. 639.7 as is available in the circumstances of the disaster
still must be given, whether in advance or after the fact of an
employment loss caused by a natural disaster.
(4) Where a plant closing or mass layoff occurs as an indirect
result of a natural disaster, the exception does not apply but the
``unforeseeable business circumstance'' exception described in paragraph
(b) of this section may be applicable.
[[Page 192]]
Sec. 639.10 When may notice be extended?
Additional notice is required when the date or schedule of dates of
a planned plant closing or mass layoff is extended beyond the date or
the ending date of any 14-day period announced in the original notice as
follows:
(a) If the postponement is for less than 60 days, the additional
notice should be given as soon as possible to the parties identified in
Sec. 639.6 and should include reference to the earlier notice, the date
(or 14-day period) to which the planned action is postponed, and the
reasons for the postponement. The notice should be given in a manner
which will provide the information to all affected employees.
(b) If the postponement is for 60 days or more, the additional
notice should be treated as new notice subject to the provisions of
Sec. Sec. 639.5, 639.6 and 639.7 of this part. Rolling notice, in the
sense of routine periodic notice, given whether or not a plant closing
or mass layoff is impending, and with the intent to evade the purpose of
the Act rather than give specific notice as required by WARN, is not
acceptable.
PART 640_STANDARD FOR BENEFIT PAYMENT PROMPTNESS_UNEMPLOYMENT
COMPENSATION
Sec.
640.1 Purpose and scope.
640.2 Federal law requirements.
640.3 Interpretation of Federal law requirements.
640.4 Standard for conformity.
640.5 Criteria for compliance.
640.6 Review of State compliance.
640.7 Benefit payment performance plans.
640.8 Enforcement of the standard.
640.9 Information, reports and studies.
Authority: Sec. 1102, Social Security Act (42 U.S.C. 1302);
Secretary's order No. 4-75, dated April 16, 1975 (40 FR 18515) (5 U.S.C.
553). Interpret and apply secs. 303(a)(1) and 303(b)(2) of the Social
Security Act (42 U.S.C. 503(a)(1), 503(b)(2)).
Source: 43 FR 33225, July 28, 1978, unless otherwise noted.
Sec. 640.1 Purpose and scope.
(a) Purpose. (1) Section 303(a)(1) of the Social Security Act
requires, for the purposes of title III of that Act, that a State
unemployment compensation law include provision for methods of
administration of the law that are reasonably calculated to insure the
full payment of unemployment compensation when determined under the
State law to be due to claimants. The standard in this part is issued to
implement section 303(a)(1) in regard to promptness in the payment of
unemployment benefits to eligible claimants.
(2) Although the standard applies to the promptness of all benefit
payments and the criteria apply directly to the promptness of first
benefit payments, it is recognized that adequate performance is
contingent upon the prompt determination of eligibility by the State as
a condition for the payment or denial of benefits. Accordingly, implicit
in prompt performance with respect to benefit payments is the
corresponding need for promptness by the State in making determinations
of eligibility. However, applicable Federal laws provide no authority
for the Secretary of Labor to determine the eligibility of individuals
under a State law.
(b) Scope. (1) The standard in this part applies to all State laws
approved by the Secretary of Labor under the Federal Unemployment Tax
Act (section 3304 of the Internal Revenue Code of 1986, 26 U.S.C. 3304),
and to the administration of the State laws.
(2) The standard specified in Sec. 640.4 applies to all claims for
unemployment compensation. The criteria for State compliance in Sec.
640.5 apply to first payments of unemployment compensation under the
State law to eligible claimants following the filing of initial claims
and first compensable claims.
[43 FR 33225, July 28, 1978, as amended at 71 FR 35516, June 21, 2006]
Sec. 640.2 Federal law requirements.
(a) Conformity. Section 303(a)(1) of the Social Security Act, 42
U.S.C. 503(a)(1), requires that a State law include provision for:
Such methods of administration * * * as are found by the Secretary
of Labor to be reasonably calculated to insure full payment of
unemployment compensation when due.
(b) Compliance. Section 303(b)(2) of the Social Security Act, 42
U.S.C. 503(b)(2), provides in part that:
[[Page 193]]
Whenever the Secretary of Labor, after reasonable notice and
opportunity for hearing to the State agency charged with the
administration of the State law, finds that in the administration of the
law there is:
(1) * * *
(2) a failure to comply substantially with any provision specified
in subsection (a) of this section;
the Secretary of Labor shall notify such State agency that further
payments will not be made to the State until the Secretary of Labor is
satisfied that there is no longer any such * * * failure to comply.
Until he is so satisfied, he shall make no further certification to
the Secretary of the Treasury with respect to such State * * *.
Sec. 640.3 Interpretation of Federal law requirements.
(a) Section 303(a)(1). The Secretary interprets section 303(a)(1) of
the Social Security Act to require that a State law include provision
for such methods of administration as will reasonable insure the full
payment of unemployment benefits to eligible claimants with the greatest
promptness that is administratively feasible.
(b) Section 303(b)(2). (1) The Secretary interprets section
303(b)(2) of the Social Security Act to require that, in the
administration of a State law, there shall be substantial compliance
with the provision required by section 303(a)(1).
(2) The greatest promptness that is administratively feasible will
depend upon the circumstances in each State that impacts upon its
performance in paying benefits. Factors reasonably beyond a State's
control may cause its performance to drop below the level of adequacy
expressed in the table below as criteria for substantial compliance
applicable to all States. Where it is demonstrated that failure to meet
the criteria of adequacy is attributable to factors reasonably beyond
the State's control and, in light of those factors, the State has
performed at the highest level administratively feasible, it will be
considered that the State is in substantial compliance with the Standard
for conformity. Whether or not the State is in substantial compliance,
the remedial provisions of Sec. Sec. 640.7 and 640.8 will be applicable
when the pertinent criteria are not met.
Sec. 640.4 Standard for conformity.
A State law will satisfy the requirement of section 303(a)(1), if it
contains a provision requiring, or which is construed to require, such
methods of administration as will reasonably insure the full payment of
unemployment benefits to eligible claimants with the greatest promptness
that is administratively feasible.
Sec. 640.5 Criteria for compliance.
The criteria in the schedule below shall apply in determining
whether, in the administration of a State law, there has been
substantial compliance with the provision required by section 303(a)(1)
in the issuance of benefit payments to eligible claimants for the first
compensable weeks of unemployment in their benefit years:
------------------------------------------------------------------------
Percentage of first payments
issued--days following end of
first compensable week
-------------------------------
14 days, 21 days,
waiting nonwaiting 35 days,
week week all
States States \1\ States
------------------------------------------------------------------------
Intrastate Claims
------------------------------------------------------------------------
Performance to be achieved for the 12- 87 87 93
mo. period ending on March 31 of each
year...................................
------------------------------------------------------------------------
Interstate Claims
------------------------------------------------------------------------
Performance to be achieved for the 12- 70 70 78
mo. period ending on March 31 of each
year...................................
------------------------------------------------------------------------
\1\ A nonwaiting week State is any State whose law does not require that
a non-compensable period of unemployment be served before the payment
of benefits commences.
A State will be deemed to comply substantially, as set out in Sec. Sec.
640.2(b) and 640.3(b), if its average performance, for the period of
review, meets or exceeds the applicable criteria set forth above.
[43 FR 33225, July 28, 1978, as amended at 71 FR 35516, June 21, 2006]
Sec. 640.6 Review of State compliance.
(a) Annual reviews. The administration of each State law shall be
reviewed annually for compliance, as set out in Sec. Sec. 640.2(b) and
640.3(b). Annual reviews shall be for the 12-month period ending on
March 31 of each year. An annual review with respect to any
[[Page 194]]
State shall be based upon the monthly reports of performance submitted
to the Department by the State agency, any special reports of
performance submitted to the Department by the State agency, any benefit
payment performance plan applicable to the period being reviewed, any
study or anylysis of performance relevant to the period being reviewed,
and any other audit, study, or analysis as directed by the Department of
Labor.
(b) Periodic review. The administration of any State law may be
reviewed at any other time, when there is reason to believe that there
may be failure of compliance as set out in Sec. Sec. 640.2(b) and
640.3(b). Such a review shall be based upon the same elements as may be
required for an annual review.
Sec. 640.7 Benefit payment performance plans.
(a) Annual plan. An annual benefit payment performance plan shall be
submitted by a State agency to the Department of Labor when average
performance over a 12-month period ending on March 31 of any year does
not meet the criteria specified in Sec. 640.5. An annual plan shall be
submitted by July 31 following the applicable March 31, and shall be a
plan for the fiscal year that begins on the succeeding October 1. An
annual plan shall be subject to continuing appraisal during the period
it is in effect, and shall be subject to modification from time to time
as may be directed by the Department of Labor after consultation with
the State agency.
(b) Periodic plan. A periodic benefit payment performance plan shall
be submitted by a State agency when directed by the Department of Labor.
A periodic plan may be in addition to, or a modification of an annual
plan and may be required even though an annual plan covering the same
period is not required. A periodic plan shall be subject to continuing
appraisal during the period it is in effect, and shall be subject to
modification from time to time as may be directed by the Department of
Labor.
(c) Content of plan. An annual plan or periodic plan shall set forth
such corrective actions, performance and evaluation plans, and other
matters as the Department of Labor directs, after consultation with the
State agency.
(Approved by the Office of Management and Budget under control number
1205-0132)
(Pub. L. No. 96-511)
[43 FR 33225, July 28, 1978, as amended at 49 FR 18295, Apr. 30, 1984]
Sec. 640.8 Enforcement of the standard.
(a) Action by the Department of Labor. When a State agency fails,
for an extended period, to meet the standard set forth in Sec. 640.4 or
the criteria specified in Sec. 640.5, or fails to show satisfactory
improvement after having submitted a benefit payment performance plan of
action, the Department of Labor shall pursue any of the following
remedial steps that it deems necessary before considering application of
the provisions of Sec. 640.2:
(1) Initiate informal discussion with State agency officials
pursuant to Sec. 601.5(b) of this chapter.
(2) Conduct an evaluation of the State's benefit payment processes
and analyze the reasons for the State's failure to meet the standard.
(3) Recommend specific actions for the State to take to improve its
benefit payment performance.
(4) Request the State to submit a plan for complying with the
standard by a prescribed date.
(5) Initiate special reporting requirements for a specified period
of time.
(6) Consult with the Governor of the State regarding the
consequences of the State's noncompliance with the standard.
(7) Propose to the Governor of the State and on an agreed upon basis
arrange for the use of expert Federal staff to furnish technical
assistance to the State agency with respect to its payment operations.
(b) Action by the Assistant Secretary. If, after all remedial steps
have been exhausted, a State fails to take appropriate action, or
otherwise fails to meet the standard specified in Sec. 640.4, the
Assistant Secretary for Employment and Training shall, after taking all
factors into consideration, recommend to the Secretary of Labor that
appropriate notice be sent to the State agency and that an opportunity
for a hearing be extended in accordance with
[[Page 195]]
section 303(b) of the Social Security Act.
Sec. 640.9 Information, reports and studies.
A State shall furnish to the Secretary of Labor such information and
reports and make such studies as the Secretary decides are necessary or
appropriate to carry out this part.
PART 641_PROVISIONS GOVERNING THE SENIOR COMMUNITY SERVICE EMPLOYMENT
PROGRAM
Subpart A_Purpose and Definitions
Sec.
641.100 What does this part cover?
641.110 What is the SCSEP?
641.120 What are the purposes of the SCSEP?
641.130 What is the scope of this part?
641.140 What definitions apply to this part?
Subpart B_Coordination With the Workforce Investment Act
641.200 What is the relationship between the SCSEP and the Workforce
Investment Act?
641.210 What services, in addition to the applicable core services, must
SCSEP grantees and sub-recipients provide through the One-Stop
delivery system?
641.220 Does title I of WIA require the SCSEP to use OAA funds for
individuals who are not eligible for SCSEP services or for
services that are not authorized under the OAA?
641.230 Must the individual assessment conducted by the SCSEP grantee or
sub-recipient and the assessment performed by the One-Stop
delivery system be accepted for use by either entity to
determine the individual's need for services in the SCSEP and
adult programs under title I-B of WIA?
641.240 Are SCSEP participants eligible for intensive and training
services under title I of WIA?
Subpart C_The State Plan
641.300 What is the State Plan?
641.302 What is a four-year strategy?
641.305 Who is responsible for developing and submitting the State Plan?
641.310 May the Governor, or the highest government official, delegate
responsibility for developing and submitting the State Plan?
641.315 Who participates in developing the State Plan?
641.320 Must all national grantees operating within a State participate
in the State planning process?
641.325 What information must be provided in the State Plan?
641.330 How should the State Plan reflect community service needs?
641.335 How should the Governor, or the highest government official,
address the coordination of SCSEP services with activities
funded under title I of WIA?
641.340 How often must the Governor, or the highest government official,
update the State Plan?
641.345 What are the requirements for modifying the State Plan?
641.350 How should public comments be solicited and collected?
641.355 Who may comment on the State Plan?
641.360 How does the State Plan relate to the equitable distribution
report?
641.365 How must the equitable distribution provisions be reconciled
with the provision that disruptions to current participants
should be avoided?
Subpart D_Grant Application and Responsibility Review Requirements for
State and National SCSEP Grants
641.400 What entities are eligible to apply to the Department for funds
to administer SCSEP projects?
641.410 How does an eligible entity apply?
641.420 What are the eligibility criteria that each applicant must meet?
641.430 What are the responsibility conditions that an applicant must
meet?
641.440 Are there responsibility conditions that alone will disqualify
an applicant?
641.450 How will the Department examine the responsibility of eligible
entities?
641.460 What factors will the Department consider in selecting national
grantees?
641.465 Under what circumstances may the Department reject an
application?
641.470 What happens if an applicant's application is rejected?
641.480 May the Governor, or the highest government official, make
recommendations to the Department on national grant
applications?
641.490 When will the Department compete SCSEP grant awards?
641.495 When must a State compete its SCSEP award?
Subpart E_Services to Participants
641.500 Who is eligible to participate in the SCSEP?
641.505 When is eligibility determined?
641.507 How is applicant income computed?
641.510 What types of income are included and excluded for participant
eligibility determinations?
[[Page 196]]
641.512 May grantees and sub-recipients enroll otherwise eligible job
ready individuals and place them directly into unsubsidized
employment?
641.515 How must grantees and sub-recipients recruit and select eligible
individuals for participation in the SCSEP?
641.520 Are there any priorities that grantees and sub-recipients must
use in selecting eligible individuals for participation in the
SCSEP?
641.535 What services must grantees and sub-recipients provide to
participants?
641.540 What types of training may grantees and sub-recipients provide
to SCSEP participants in addition to the training received at
the community service assignment?
641.545 What supportive services may grantees and sub-recipients provide
to participants?
641.550 What responsibility do grantees and sub-recipients have to place
participants in unsubsidized employment?
641.565 What policies govern the provision of wages and benefits to
participants?
641.570 Is there a time limit for participation in the program?
641.575 May a grantee or sub-recipient establish a limit on the amount
of time its participants may spend at a host agency?
641.577 Is there a limit on community service assignment hours?
641.580 Under what circumstances may a grantee or sub-recipient
terminate a participant?
641.585 What is the employment status of SCSEP participants?
Subpart F_Pilot, Demonstration, and Evaluation Projects
641.600 What is the purpose of the pilot, demonstration, and evaluation
projects authorized under Sec. 502(e) of the OAA?
641.610 How are pilot, demonstration, and evaluation projects
administered?
641.620 How may an organization apply for pilot, demonstration, and
evaluation project funding?
641.630 What pilot, demonstration, and evaluation project activities are
allowable under Sec. 502(e)?
641.640 Should pilot, demonstration, and evaluation project entities
coordinate with SCSEP grantees and sub-recipients, including
area agencies on aging?
Subpart G_Performance Accountability
641.700 What performance measures/indicators apply to SCSEP grantees?
641.710 How are the performance indicators defined?
641.720 How will the Department and grantees initially determine and
then adjust expected levels of performance for the core
performance measures?
641.730 How will the Department assist grantees in the transition to the
new core performance indicators?
641.740 How will the Department determine whether a grantee fails,
meets, or exceeds the expected levels of performance for the
core indicators and what will be the consequences of failing
to meet expected levels of performance?
641.750 Will there be performance-related incentives?
Subpart H_Administrative Requirements
641.800 What uniform administrative requirements apply to the use of
SCSEP funds?
641.803 What is program income?
641.806 How must SCSEP program income be used?
641.809 What non-Federal share (matching) requirements apply to the use
of SCSEP funds?
641.812 What is the period of availability of SCSEP funds?
641.815 May the period of availability be extended?
641.821 What audit requirements apply to the use of SCSEP funds?
641.824 What lobbying requirements apply to the use of SCSEP funds?
641.827 What general nondiscrimination requirements apply to the use of
SCSEP funds?
641.833 What policies govern political patronage?
641.836 What policies govern political activities?
641.839 What policies govern union organizing activities?
641.841 What policies govern nepotism?
641.844 What maintenance of effort requirements apply to the use of
SCSEP funds?
641.847 What uniform allowable cost requirements apply to the use of
SCSEP funds?
641.850 Are there other specific allowable and unallowable cost
requirements for the SCSEP?
641.853 How are costs classified?
641.856 What functions and activities constitute administrative costs?
641.859 What other special rules govern the classification of costs as
administrative costs or programmatic activity costs?
641.861 Must SCSEP recipients provide funding for the administrative
costs of sub-recipients?
641.864 What functions and activities constitute programmatic activity
costs?
641.867 What are the limitations on the amount of SCSEP administrative
costs?
641.870 Under what circumstances may the administrative cost limitation
be increased?
[[Page 197]]
641.873 What minimum expenditure levels are required for participant
wages and benefits?
641.874 What conditions apply to a SCSEP grantee request to use
additional funds for training and supportive service costs?
641.876 How will compliance with cost limitations and minimum
expenditure levels be determined?
641.879 What are the financial and performance reporting requirements
for recipients?
641.881 What are the SCSEP recipient's responsibilities relating to
awards to sub-recipients?
641.884 What are the grant closeout procedures?
Subpart I_Grievance Procedures and Appeals Process
641.900 What appeal process is available to an applicant that does not
receive a grant?
641.910 What grievance procedures must grantees make available to
applicants, employees, and participants?
641.920 What actions of the Department may a grantee appeal and what
procedures apply to those appeals?
641.930 Is there an alternative dispute resolution process that may be
used in place of an OALJ hearing?
Authority: 42 U.S.C. 3056 et seq.; Pub. L. 109-365.
Source: 75 FR 53812, Sept. 1, 2010, unless otherwise noted.
Subpart A_Purpose and Definitions
Sec. 641.100 What does this part cover?
Part 641 contains the Department of Labor's regulations for the
Senior Community Service Employment Program (SCSEP), authorized under
title V of the Older Americans Act (OAA), 42 U.S.C. 3056 et seq., as
amended by the Older Americans Act Amendments of 2006, Public Law 109-
365. This part and other pertinent regulations set forth the regulations
applicable to the SCSEP.
(a) Subpart A of this part contains introductory provisions and
definitions that apply to this part.
(b) Subpart B of this part describes the required relationship
between the OAA and the Workforce Investment Act of 1998 (WIA), 29
U.S.C. 2801 et seq. These provisions discuss the coordinated efforts to
provide services through the integration of the SCSEP within the One-
Stop delivery system.
(c) Subpart C of this part sets forth the requirements for the State
Plan, such as the four-year strategy, required coordination efforts,
public comments, and equitable distribution.
(d) Subpart D of this part establishes grant planning and
application requirements, including grantee eligibility and
responsibility review provisions that apply to the Department's award of
SCSEP funds for State and national grants.
(e) Subpart E of this part details SCSEP participant services.
(f) Subpart F of this part provides the rules for pilot,
demonstration, and evaluation projects.
(g) Subpart G of this part outlines the performance accountability
requirements. This subpart establishes requirements for performance
measures, defines such measures, and establishes corrective actions for
failure to meet core performance measures.
(h) Subpart H of this part sets forth the administrative
requirements for SCSEP funds.
(i) Subpart I of this part describes the grievance and appeals
processes and requirements.
Sec. 641.110 What is the SCSEP?
The Senior Community Service Employment Program (SCSEP) is a program
administered by the Department of Labor that serves unemployed low-
income persons who are 55 years of age and older and who have poor
employment prospects by training them in part-time community service
assignments and by assisting them in developing skills and experience to
facilitate their transition to unsubsidized employment.
Sec. 641.120 What are the purposes of the SCSEP?
The purposes of the SCSEP are to foster individual economic self-
sufficiency and promote useful part-time opportunities in community
service assignments for unemployed low-income persons who are 55 years
of age or older, particularly persons who have poor employment
prospects, and to increase the number of older persons who may enjoy the
benefits of unsubsidized
[[Page 198]]
employment in both the public and private sectors. (OAA Sec.
502(a)(1)).
Sec. 641.130 What is the scope of this part?
The regulations in this part address the requirements that apply to
the SCSEP. More detailed policies and procedures are contained in
administrative guidelines issued by the Department. Throughout this
part, phrases such as, ``according to instructions (procedures) issued
by the Department'' or ``additional guidance will be provided through
administrative issuance'' refer to the documents issued under the
Secretary's authority to administer the SCSEP, such as Training and
Employment Guidance Letters (TEGLs), Training and Employment Notices
(TENs), previously issued SCSEP Older Worker Bulletins that are still in
effect, technical assistance guides, and other SCSEP guidance.
Sec. 641.140 What definitions apply to this part?
The following definitions apply to this part:
Additional indicators mean retention in unsubsidized employment for
1 year; satisfaction of participants, employers and their host agencies
with their experiences and the services provided; entry into volunteer
work; and any other indicators of performance that the Secretary
determines to be appropriate to evaluate services and performance. (OAA
Sec. 513(b)(2)).
At risk for homelessness means an individual is likely to become
homeless and the individual lacks the resources and support networks
needed to obtain housing.
Authorized position level means the number of SCSEP enrollment
opportunities that can be supported for a 12-month period based on the
average national unit cost. The authorized position level is derived by
dividing the total amount of funds appropriated for a Program Year by
the national average unit cost per participant for that Program Year as
determined by the Department. The national average unit cost includes
all costs of administration, other participant costs, and participant
wage and benefit costs as defined in Sec. 506(g) of the OAA.
Co-enrollment applies to any individual who meets the qualifications
for SCSEP participation and is also enrolled as a participant in WIA or
another employment and training program, as provided in the Individual
Employment Plan.
Community service means:
(1) Social, health, welfare, and educational services (including
literacy tutoring), legal and other counseling services and assistance,
including tax counseling and assistance and financial counseling, and
library, recreational, and other similar services;
(2) Conservation, maintenance, or restoration of natural resources;
(3) Community betterment or beautification;
(4) Antipollution and environmental quality efforts;
(5) Weatherization activities;
(6) Economic development; and
(7) Other such services essential and necessary to the community as
the Secretary determines by rule to be appropriate. (OAA Sec.
518(a)(1)).
Community service assignment means part-time, temporary employment
paid with grant funds in projects at host agencies through which
eligible individuals are engaged in community service and receive work
experience and job skills that can lead to unsubsidized employment. (OAA
Sec. 518(a)(2)).
Core indicators means hours (in the aggregate) of community service
employment; entry into unsubsidized employment; retention in
unsubsidized employment for six months; earnings; the number of eligible
individuals served; and most-in-need (the number of individuals
described in Sec. 518 (a)(3)(B)(ii) or (b)(2) of the OAA). (OAA Sec.
513(b)(1)).
Core services means those services described in Sec. 134(d)(2) of
WIA.
Department or DOL means the United States Department of Labor,
including its agencies and organizational units.
Disability means a disability attributable to a mental or physical
impairment, or a combination of mental and physical impairments, that
results in substantial functional limitations in one or more of the
following areas of major life activity:
[[Page 199]]
(1) Self-care;
(2) Receptive and expressive language;
(3) Learning;
(4) Mobility;
(5) Self-direction;
(6) Capacity for independent living;
(7) Economic self-sufficiency;
(8) Cognitive functioning; and
(9) Emotional adjustment. (42 U.S.C. 3002(13)).
Equitable distribution report means a report based on the latest
available Census or other reliable data, which lists the optimum number
of participant positions in each designated area in the State, and the
number of authorized participant positions each grantee serves in that
area, taking into account the needs of underserved counties and
incorporated cities as necessary. This report provides a basis for
improving the distribution of SCSEP positions.
Frail means an individual 55 years of age or older who is determined
to be functionally impaired because the individual--
(1)(i) Is unable to perform at least two activities of daily living
without substantial human assistance, including verbal reminding,
physical cueing, or supervision; or
(ii) At the option of the State, is unable to perform at least three
such activities without such assistance; or
(2) Due to a cognitive or other mental impairment, requires
substantial supervision because the individual behaves in a manner that
poses a serious health or safety hazard to the individual or to another
individual. (42 U.S.C. 3002(22)).
Grant period means the time period between the effective date of the
grant award and the ending date of the award, which includes any
modifications extending the period of performance, whether by the
Department's exercise of options contained in the grant agreement or
otherwise. This is also referred to as ``project period'' or ``award
period.''
Grantee means an entity receiving financial assistance directly from
the Department to carry out SCSEP activities. The grantee is the legal
entity that receives the award and is legally responsible for carrying
out the SCSEP, even if only a particular component of the entity is
designated in the grant award document. Grantees include public and
nonprofit private agencies and organizations, agencies of a State,
tribal organizations, and Territories, that receive SCSEP grants from
the Department. (OAA Sec. Sec. 502(b)(1), 506(a)(2)). As used here,
``grantee'' includes ``grantee'' as defined in 29 CFR 97.3 and
``recipient'' as defined in 29 CFR 95.2(gg).
Greatest economic need means the need resulting from an income level
at or below the poverty guidelines established by the Department of
Health and Human Services and approved by the Office of Management and
Budget (OMB). (42 U.S.C. 3002(23)).
Greatest social need means the need caused by non-economic factors,
which include: Physical and mental disabilities; language barriers; and
cultural, social, or geographical isolation, including isolation caused
by racial or ethnic status, which restricts the ability of an individual
to perform normal daily tasks or threatens the capacity of the
individual to live independently. (42 U.S.C. 3002(24)).
Homeless includes:
(1) An individual who lacks a fixed, regular, and adequate nighttime
residence; and
(2) An individual who has a primary nighttime residence that is:
(i) A supervised publicly or privately operated shelter designed to
provide temporary living accommodations (including welfare hotels,
congregate shelters, and transitional housing for the mentally ill);
(ii) An institution that provides a temporary residence for
individuals intended to be institutionalized; or
(iii) A public or private place not designed for, or ordinarily used
as, regular sleeping accommodations for human beings. (42 U.S.C.
11302(a)).
Host agency means a public agency or a private nonprofit
organization exempt from taxation under Sec. 501(c)(3) of the Internal
Revenue Code of 1986 which provides a training work site and supervision
for one or more participants. Political parties cannot be host agencies.
A host agency may be a religious organization as long as the projects in
which participants are
[[Page 200]]
being trained do not involve the construction, operation, or maintenance
of any facility used or to be used as a place for sectarian religious
instruction or worship. (OAA Sec. 502(b)(1)(D)).
Indian means a person who is a member of an Indian tribe. (42 U.S.C.
3002(26)).
Indian tribe means any tribe, band, nation, or other organized group
or community of Indians (including Alaska Native village or regional or
village corporation as defined in or established pursuant to the Alaska
Native Claims Settlement Act, 43 U.S.C. 1601 et seq.) which: (1) Is
recognized as eligible for the special programs and services provided by
the United States to Indians because of their status as Indians; or (2)
is located on, or in proximity to, a Federal or State reservation or
Rancheria. (42 U.S.C. 3002(27)).
Individual employment plan (IEP) means a plan for a participant that
is based on an assessment of that participant conducted by the grantee
or sub-recipient, or a recent assessment or plan developed by another
employment and training program, and a related service strategy. The IEP
must include an appropriate employment goal (except that after the first
IEP, subsequent IEPs need not contain an employment goal if such a goal
is not feasible), objectives that lead to the goal, a timeline for the
achievement of the objectives; and be jointly agreed upon with the
participant. (OAA Sec. 502(b)(1)(N)).
Intensive services means those services authorized by Sec.
134(d)(3) of the Workforce Investment Act.
Jobs for Veterans Act means Public Law 107-288 (2002). Section 2(a)
of the Jobs for Veterans Act, codified at 38 U.S.C. 4215(a), provides a
priority of service for Department of Labor employment and training
programs for veterans, and certain spouses of veterans, who otherwise
meet the eligibility requirements for participation. Priority is
extended to veterans. Priority is also extended to the spouse of a
veteran who died of a service-connected disability; the spouse of a
member of the Armed Forces on active duty who has been listed for a
total of more than 90 days as missing in action, captured in the line of
duty by a hostile force, or forcibly detained by a foreign government or
power; the spouse of any veteran who has a total disability resulting
from a service-connected disability; and the spouse of any veteran who
died while a disability so evaluated was in existence. (See Sec.
641.520(b)).
Job ready refers to individuals who do not require further education
or training to perform work that is available in their labor market.
Limited English proficiency means individuals who do not speak
English as their primary language and who have a limited ability to
read, speak, write, or understand English.
Local Board means a Local Workforce Investment Board established
under Sec. 117 of the Workforce Investment Act.
Local Workforce Investment Area or local area means an area
designated by the Governor of a State under Sec. 116 of the Workforce
Investment Act.
Low employment prospects means the likelihood that an individual
will not obtain employment without the assistance of the SCSEP or
another workforce development program. Persons with low employment
prospects have a significant barrier to employment. Significant barriers
to employment may include but are not limited to: Lacking a substantial
employment history, basic skills, and/or English-language proficiency;
lacking a high school diploma or the equivalent; having a disability;
being homeless; or residing in socially and economically isolated rural
or urban areas where employment opportunities are limited.
Low literacy skills means the individual computes or solves
problems, reads, writes, or speaks at or below the 8th grade level or is
unable to compute or solve problems, read, write, or speak at a level
necessary to function on the job, in the individual's family, or in
society.
Most-in-need means participants with one or more of the following
characteristics: Have a severe disability; are frail; are age 75 or
older; are age-eligible but not receiving benefits under title II of the
Social Security Act; reside in an area with persistent unemployment and
have severely limited employment prospects; have limited English
proficiency; have low literacy skills; have a disability; reside in a
[[Page 201]]
rural area; are veterans; have low employment prospects; have failed to
find employment after using services provided under title I of the
Workforce Investment Act of 1998 (29 U.S.C. 2801 et seq.); or are
homeless or at risk for homelessness. (OAA Sec. 513(b)(1)(E)).
National grantee means a public or non-profit private agency or
organization, or Tribal organization, that receives a grant under title
V of the OAA (42 U.S.C. 3056 et seq.) to administer a SCSEP project.
(See OAA Sec. 506(g)(5)).
OAA means the Older Americans Act, 42 U.S.C. 3001 et seq., as
amended.
One-Stop Center means the One-Stop Center system in a WIA local area
which must include a comprehensive One-Stop Center through which One-
Stop partners provide applicable core services and which provides access
to other programs and services carried out by the One-Stop partners.
(See WIA Sec. 134(c)(2)).
One-Stop delivery system means a system under which employment and
training programs, services, and activities are available through a
network of eligible One-Stop partners, which assures that information
about and access to core services is available regardless of where the
individuals initially enter the workforce investment system. (See WIA
Sec. 134(c)(2)).
One-Stop partner means an entity described in Sec. 121(b)(1) of the
Workforce Investment Act, i.e., required partners, or an entity
described in Sec. 121(b)(2) of the Workforce Investment Act, i.e.,
additional partners.
Other participant (enrollee) costs means the costs of participant
training, including the payment of reasonable costs to instructors,
classroom rental, training supplies, materials, equipment, and tuition,
and which may be provided before or during a community service
assignment, in a classroom setting, or under other appropriate
arrangements; job placement assistance, including job development and
job search assistance; participant supportive services to enable a
participant to successfully participate in a project, including the
payment of reasonable costs of transportation, health care and medical
services, special job-related or personal counseling, incidentals (such
as work shoes, badges, uniforms, eyeglasses, and tools), child and adult
care, temporary shelter, and follow-up services; and outreach,
recruitment and selection, intake orientation, and assessments. (OAA
Sec. 502(c)(6)(A)(ii)-(v)).
Pacific Island and Asian Americans means Americans having origins in
any of the original peoples of the Far East, Southeast Asia, the Indian
Subcontinent, or the Pacific Islands. (OAA Sec. 518(a)(5)).
Participant means an individual who is determined to be eligible for
the SCSEP, is given a community service assignment, and is receiving any
service funded by the program as described in subpart E.
Persistent unemployment means that the annual average unemployment
rate for a county or city is more than 20 percent higher than the
national average for two out of the last three years.
Poor employment prospects means the significant likelihood that an
individual will not obtain employment without the assistance of the
SCSEP or another workforce development program. Persons with poor
employment prospects have a significant barrier to employment;
significant barriers to employment include but are not limited to:
lacking a substantial employment history, basic skills, and/or English-
language proficiency; lacking a high school diploma or the equivalent;
having a disability; being homeless; or residing in socially and
economically isolated rural or urban areas where employment
opportunities are limited.
Program operator means a grantee or sub-recipient that receives
SCSEP funds from a SCSEP grantee or a higher-tier SCSEP sub-recipient
and performs the following activities for all its participants:
Eligibility determination, participant assessment, and development of
and placement into community service assignments.
Program Year means the one-year period beginning on July 1 and
ending on June 30.
Project means an undertaking by a grantee or sub-recipient in
accordance with a grant or contract agreement that provides service to
communities and training and employment opportunities to eligible
individuals.
[[Page 202]]
Recipient means grantee. As used here, ``recipient'' includes
``recipient'' as defined in 29 CFR 95.2(gg) and ``grantee'' as defined
in 29 CFR 97.3.
Residence means an individual's declared dwelling place or address
as demonstrated by appropriate documentation.
Rural means an area not designated as a metropolitan statistical
area by the Census Bureau; segments within metropolitan counties
identified by codes 4 through 10 in the Rural Urban Commuting Area
(RUCA) system; and RUCA codes 2 and 3 for census tracts that are larger
than 400 square miles and have population density of less than 30 people
per square mile.
SCSEP means the Senior Community Service Employment Program
authorized under title V of the OAA.
Secretary means the Secretary of the U.S. Department of Labor.
Service area means the geographic area served by a local SCSEP
project in accordance with a grant agreement.
Severe disability means a severe, chronic disability attributable to
mental or physical impairment, or a combination of mental and physical
impairments, that--
(1) Is likely to continue indefinitely; and
(2) Results in substantial functional limitation in 3 or more of the
following areas of major life activity:
(i) Self-care;
(ii) Receptive and expressive language;
(iii) Learning;
(iv) Mobility;
(v) Self-direction;
(vi) Capacity for independent living;
(vii) Economic self-sufficiency. (42 U.S.C. 3002(48)).
Severely limited employment prospects means the substantial
likelihood that an individual will not obtain employment without the
assistance of the SCSEP or another workforce development program.
Persons with severely limited employment prospects have more than one
significant barrier to employment; significant barriers to employment
may include but are not limited to: Lacking a substantial employment
history, basic skills, and/or English-language proficiency; lacking a
high school diploma or the equivalent; having a disability; being
homeless; or residing in socially and economically isolated rural or
urban areas where employment opportunities are limited.
State Board means a State Workforce Investment Board established
under WIA Sec. 111.
State grantee means the entity designated by the Governor, or the
highest government official, to enter into a grant with the Department
to administer a State or Territory SCSEP project under the OAA. Except
as applied to funding distributions under Sec. 506 of the OAA, this
definition applies to the 50 States, Puerto Rico, the District of
Columbia and the following Territories: Guam, American Samoa, U.S.
Virgin Islands, and the Commonwealth of the Northern Mariana Islands.
State Plan means a plan that the Governor, or the highest government
official, of a State must submit to the Secretary that outlines a four-
year strategy, and describes the planning and implementation process,
for the statewide provision of community service employment and other
authorized activities for eligible individuals under SCSEP. (See Sec.
641.300).
Sub-recipient means the legal entity to which a sub-award of
financial assistance is made by the grantee (or by a higher-tier sub-
recipient), and that is accountable to the grantee for the use of the
funds provided. As used here, ``sub-recipient'' includes ``sub-grantee''
as defined in 29 CFR 97.3 and ``sub-recipient'' as defined in 29 CFR
95.2(kk).
Supportive services means services, such as transportation, health
and medical services, special job-related or personal counseling,
incidentals (such as work shoes, badges, uniforms, eye-glasses, and
tools), child and adult care, housing, including temporary shelter,
follow up services, and needs-related payments, which are necessary to
enable an individual to participate in activities authorized under the
SCSEP. (OAA Sec. 502(c)(6)(A)(iv) and 518(a)(7)).
Title V of the OAA means 42 U.S.C. 3056 et seq., as amended.
Training services means those services authorized by WIA Sec.
134(d)(4).
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Tribal organization means the recognized governing body of any
Indian tribe, or any legally established organization of Indians which
is controlled, sanctioned, or chartered by such governing body. (42
U.S.C. 3002(54)).
Unemployed means an individual who is without a job and who wants
and is available for work, including an individual who may have
occasional employment that does not result in a constant source of
income. (OAA 518(a)(8)).
Veteran means an individual who is a ``covered person'' for purposes
of the Jobs for Veterans Act, 38 U.S.C. 4215(a)(1).
Volunteer work means:
(1) For purposes of Sec. 641.140 of this part, activities or work
that former participants perform for a public agency of a State, local
government or intergovernmental agency, or for a charity or not-for-
profit organization, including faith-based or community-based
organizations, for civic, charitable, or for humanitarian reasons, and
without promise, expectation, or receipt of compensation;
(2) For informational reporting purposes, volunteer work also can
include similar activities that a former participant performs on his or
her own that are not conducted through a formal organization or agency
as long as those activities are not performed for a member of the former
participant's family or of the individual's own household. These types
of volunteer activities will not be included in the calculation of the
``entry into volunteer work'' indicator under Sec. 641.140.
Workforce Investment Act (WIA) means the Workforce Investment Act of
1998 (Pub. L. 105-220 (Aug. 7, 1998)), 29 U.S.C. 2801 et seq., as
amended.
Workforce Investment Act (WIA) regulations means regulations at 20
CFR part 652, subpart D and parts 660-671.
[75 FR 53812, Sept. 1, 2010, as amended at 77 FR 4661, Jan. 31, 2012]
Effective Date Note: At 77 FR 4661, Jan. 31, 2012, Sec. 641.140 was
amended by revising the definition of ``additional indicators'' and
adding the definition of ``volunteer work''. These amendments contain
information collection and recordkeeping requirements and will not
become effective until approval has been given by the Office of
Management and Budget.
Subpart B_Coordination With the Workforce Investment Act
Sec. 641.200 What is the relationship between the SCSEP and the
Workforce Investment Act?
The SCSEP is a required partner under the Workforce Investment Act.
As such, it is a part of the One-Stop delivery system. When acting in
their capacity as WIA partners, SCSEP grantees and sub-recipients are
required to follow all applicable rules under WIA and its regulations.
(29 U.S.C. 2841(b)(1)(B)(vi) and 20 CFR 662.200 through 662.280).
Sec. 641.210 What services, in addition to the applicable core
services, must SCSEP grantees and sub-recipients provide
through the One-Stop delivery system?
In addition to providing core services, as defined at 20 CFR 662.240
of the WIA regulations, SCSEP grantees and sub-recipients must make
arrangements through the One-Stop delivery system to provide eligible
and ineligible individuals with referrals to WIA intensive and training
services and access to other activities and programs carried out by
other One-Stop partners.
Sec. 641.220 Does title I of WIA require the SCSEP to use OAA funds
for individuals who are not eligible for SCSEP services or for
services that are not authorized under the OAA?
No, SCSEP requirements continue to apply. Title V resources may not
be used to serve individuals who are not SCSEP-eligible. The Workforce
Investment Act creates a seamless service delivery system for
individuals seeking workforce development services by linking the One-
Stop partners in the One-Stop delivery system. Although the overall
effect is to provide universal access to core services, SCSEP resources
may only be used to provide services that are authorized and provided
under the SCSEP to eligible individuals. Note, however, that one
allowable SCSEP cost is a SCSEP project's proportionate share of One-
Stop costs. See Sec. 641.850(d). Title V funds can be used to pay wages
to SCSEP participants receiving intensive and training services under
title I of WIA provided that the SCSEP participants have each
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received a community service assignment. All other individuals who are
in need of the services provided under the SCSEP, but who do not meet
the eligibility criteria to enroll in the SCSEP, should be referred to
or enrolled in WIA or other appropriate partner programs. WIA Sec.
121(b)(1). These arrangements should be negotiated in the Memorandum of
Understanding (MOU), which is an agreement developed and executed
between the Local Workforce Investment Board, with the agreement of the
chief local elected official, and the One-Stop partners relating to the
operation of the One-Stop delivery system in the local area. The MOU is
further described in the WIA regulations at 20 CFR Sec. Sec. 662.300
and 662.310.
Sec. 641.230 Must the individual assessment conducted by the SCSEP
grantee or sub-recipient and the assessment performed by the
One-Stop delivery system be accepted for use by either entity
to determine the individual's need for services in the SCSEP
and adult programs under title I-B of WIA?
Yes, Sec. 502(b)(3) of the OAA provides that an assessment or IEP
completed by the SCSEP satisfies any condition for an assessment,
service strategy, or IEP completed at the One-Stop and vice-versa. (OAA
Sec. 502(b)(3)). These reciprocal arrangements and the contents of the
SCSEP IEP and WIA IEP should be negotiated in the MOU.
Sec. 641.240 Are SCSEP participants eligible for intensive and
training services under title I of WIA?
(a) Although SCSEP participants are not automatically eligible for
intensive and training services under title I of WIA, local boards may
deem SCSEP participants, either individually or as a group, as
satisfying the requirements for receiving adult intensive and training
services under title I of WIA.
(b) SCSEP participants who have been assessed and for whom an IEP
has been developed have received an intensive service under 20 CFR
663.240(a) of the WIA regulations. In order to enhance skill development
related to the IEP, it may be necessary to provide training beyond the
community service assignment to enable participants to meet their
unsubsidized employment objectives. The SCSEP grantee or sub-recipient,
the host agency, the WIA program, or another One-Stop partner may
provide training as appropriate and as negotiated in the MOU. (See Sec.
641.540 for a further discussion of training for SCSEP participants.)
Subpart C_The State Plan
Sec. 641.300 What is the State Plan?
The State Plan is a plan, submitted by the Governor, or the highest
government official, in each State, as an independent document or as
part of the WIA Unified Plan, that outlines a four-year strategy for the
statewide provision of community service employment and other authorized
activities for eligible individuals under the SCSEP as described in
Sec. 641.302. The State Plan also describes the planning and
implementation process for SCSEP services in the State, taking into
account the relative distribution of eligible individuals and employment
opportunities within the State. The State Plan is intended to foster
coordination among the various SCSEP grantees and sub-recipients
operating within the State and to facilitate the efforts of
stakeholders, including State and local boards under WIA, to work
collaboratively through a participatory process to accomplish the
SCSEP's goals. (OAA Sec. 503(a)(1)). The State Plan provisions are
listed in Sec. 641.325.
Sec. 641.302 What is a four-year strategy?
The State Plan must outline a four-year strategy for the statewide
provision of community service employment and other authorized
activities for eligible individuals under the SCSEP program. (OAA Sec.
503(a)(1)). The four-year strategy must specifically address the
following:
(a) The State's long-term strategy for achieving an equitable
distribution of SCSEP positions within the State that:
(1) Moves positions from over-served to underserved locations within
the State, under Sec. 641.365;
(2) Equitably serves rural and urban areas; and
(3) Serves individuals afforded priority for service, pursuant to
Sec. 641.520;
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(b) The State's long-term strategy for avoiding disruptions to the
program when new Census or other reliable data become available, or when
there is over-enrollment for any other reason;
(c) The State's long-term strategy for serving minority older
individuals under SCSEP;
(d) Long-term projections for job growth in industries and
occupations in the State that may provide employment opportunities for
older workers, and how those relate to the types of unsubsidized jobs
for which SCSEP participants will be trained, and the types of skill
training to be provided;
(e) The State's long-term strategy for engaging employers to develop
and promote opportunities for the placement of SCSEP participants in
unsubsidized employment;
(f) The State's strategy for continuous improvement in the level of
performance for entry into unsubsidized employment, and to achieve, at a
minimum, the levels specified in Sec. 513(a)(2)(E)(ii) of the OAA;
(g) Planned actions to coordinate activities of SCSEP grantees with
the activities being carried out in the State under title I of WIA,
including plans for using the WIA One-Stop delivery system and its
partners to serve individuals aged 55 and older;
(h) Planned actions to coordinate activities of SCSEP grantees with
the activities being carried out in the State under other titles of the
OAA;
(i) Planned actions to coordinate the SCSEP with other public and
private entities and programs that provide services to older Americans,
such as community and faith-based organizations, transportation
programs, and programs for those with special needs or disabilities;
(j) Planned actions to coordinate the SCSEP with other labor market
and job training initiatives; and
(k) The State's long-term strategy to improve SCSEP services,
including planned longer-term changes to the design of the program
within the State, and planned changes in the use of SCSEP grantees and
program operators to better achieve the goals of the program; this may
include recommendations to the Department, as appropriate.
Sec. 641.305 Who is responsible for developing and submitting the
State Plan?
The Governor, or the highest governmental official, of each State is
responsible for developing and submitting the State Plan to the
Department.
Sec. 641.310 May the Governor, or the highest government official,
delegate responsibility for developing and submitting the
State Plan?
(a) Yes, the Governor, or the highest governmental official of each
State, may delegate responsibility for developing and submitting the
State Plan, provided that any such delegation is consistent with State
law and regulations.
(b) To delegate responsibility, the Governor, or the highest
government official, must submit to the Department a signed statement
indicating the individual and/or organization that will be submitting
the State Plan on his or her behalf.
Sec. 641.315 Who participates in developing the State Plan?
(a) In developing the State Plan the Governor, or the highest
government official, must seek the advice and recommendations of
representatives from:
(1) The State and area agencies on aging;
(2) State and local boards under the Workforce Investment Act (WIA);
(3) Public and private nonprofit agencies and organizations
providing employment services, including each grantee operating a SCSEP
project within the State, except as provided in Sec. 641.320(b);
(4) Social service organizations providing services to older
individuals;
(5) Grantees under title III of the OAA;
(6) Affected communities;
(7) Unemployed older individuals;
(8) Community-based organizations serving older individuals;
(9) Business organizations; and
(10) Labor organizations.
(b) The Governor, or the highest government official, may also
obtain the advice and recommendations of other
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interested organizations and individuals, including SCSEP program
participants, in developing the State Plan. (OAA Sec. 503(a)(2)).
Sec. 641.320 Must all national grantees operating within a State
participate in the State planning process?
(a) The eligibility provision at OAA Sec. 514(c)(6) requires
national grantees to coordinate activities with other organizations at
the State and local levels. Therefore, except as provided in paragraph
(b) of this section, any national grantee that does not participate in
the State planning process may be deemed ineligible to receive SCSEP
funds in the following Program Year.
(b) National grantees serving older American Indians, or Pacific
Island and Asian Americans, with funds reserved under OAA Sec.
506(a)(3), are exempted from the requirement to participate in the State
planning processes under Sec. 503(a)(8) of the OAA. Although these
national grantees may choose not to participate in the State planning
process, the Department encourages their participation. Only those
grantees using reserved funds are exempt; if a grantee is awarded one
grant with reserved funds and another grant with non-reserved funds, the
grantee is required under paragraph (a) of this section to participate
in the State planning process for purposes of the non-reserved funds
grant.
Sec. 641.325 What information must be provided in the State Plan?
The Department issues instructions detailing the information that
must be provided in the State Plan. At a minimum, the State Plan must
include the State's four-year strategy, as described in Sec. 641.302,
and information on the following:
(a) The ratio of eligible individuals in each service area to the
total eligible population in the State;
(b) The relative distribution of:
(1) Eligible individuals residing in urban and rural areas within
the State;
(2) Eligible individuals who have the greatest economic need;
(3) Eligible individuals who are minorities;
(4) Eligible individuals who are limited English proficient; and
(5) Eligible individuals who have the greatest social need;
(c) The current and projected employment opportunities in the State
(such as by providing information available under Sec. 15 of the
Wagner-Peyser Act (29 U.S.C. 491-2) by occupation), and the types of
skills possessed by eligible individuals;
(d) The localities and populations for which projects of the type
authorized by title V are most needed;
(e) Actions taken and/or planned to coordinate activities of SCSEP
grantees in the State with activities carried out in the State under
title I of WIA;
(f) A description of the process used to obtain advice and
recommendations on the State Plan from representatives of organizations
and individuals listed in Sec. 641.315, and advice and recommendations
on steps to coordinate SCSEP services with activities funded under title
I of WIA from representatives of organizations listed in Sec. 641.335;
(g) A description of the State's procedures and time line for
ensuring an open and inclusive planning process that provides meaningful
opportunity for public comment as required by Sec. 641.350;
(h) Public comments received, and a summary of the comments;
(i) A description of the steps taken to avoid disruptions to the
greatest extent possible as provided in Sec. 641.365; and
(j) Such other information as the Department may require in the
State Plan instructions. (OAA Sec. 503(a)).
Sec. 641.330 How should the State Plan reflect community service
needs?
The Governor, or the highest government official, must ensure that
the State Plan identifies the types of community services that are
needed and the places where these services are most needed. The State
Plan should specifically identify the needs and locations of those
individuals most in need of community services and the groups working to
meet their needs. (OAA Sec. 503(a)(4)(E)).
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Sec. 641.335 How should the Governor, or the highest government
official, address the coordination of SCSEP services with
activities funded under title I of WIA?
The Governor, or the highest government official, must seek the
advice and recommendations from representatives of the State and area
agencies on aging in the State and the State and local boards
established under title I of WIA. (OAA Sec. 503(a)(2)). The State Plan
must describe the steps that are being taken to coordinate SCSEP
activities within the State with activities being carried out under
title I of WIA. (OAA Sec. 503(a)(4)(F)). The State Plan must describe
the steps being taken to ensure that the SCSEP is an active partner in
each One-Stop delivery system and the steps that will be taken to
encourage and improve coordination with the One-Stop delivery system.
Sec. 641.340 How often must the Governor, or the highest government
official, update the State Plan?
(a) Under instructions issued by the Department, the Governor, or
the highest government official, must review the State Plan and submit
an update to the State Plan to the Secretary for consideration and
approval not less often than every two years. OAA Sec. 503(a)(1).
States are encouraged to review their State Plan more frequently than
every two years, however, and make modifications as circumstances
warrant, under Sec. 641.345.
(b) Before development of the update to the State Plan, the
Governor, or the highest government official, must seek the advice and
recommendations of the individuals and organizations identified in Sec.
641.315 about what, if any, changes are needed, and must publish the
State Plan, showing the changes, for public comment. OAA Sec. section
503(a)(2), 503(a)(3).
Sec. 641.345 What are the requirements for modifying the State Plan?
(a) Modifications may be submitted anytime circumstances warrant.
(b) Modifications to the State Plan are required when:
(1) There are changes in Federal or State law or policy that
substantially change the assumptions upon which the State Plan is based;
(2) There are significant changes in the State's vision, four-year
strategy, policies, performance indicators, or organizational
responsibilities; or
(3) There is a change in a grantee or grantees.
(c) Modifications to the State Plan are subject to the same public
comment requirements that apply to the development of the State Plan
under Sec. 641.350.
(d) States are not required to seek the advice and recommendations
of the individuals and organizations identified in Sec. 641.315 when
modifying the State Plan, except that States must seek the advice and
recommendations of any national grantees operating in the State. While
not required, states are strongly encouraged to seek the advice and
recommendation of the relevant entities listed in Sec. 641.315 when or
if modifying the State Plan becomes necessary.
(e) The Department will issue additional instructions for the
procedures that must be followed when requesting modifications to the
State Plan.
Sec. 641.350 How should public comments be solicited and collected?
The Governor, or the highest government official, should follow
established State procedures to solicit and collect public comments. The
State Plan must include a description of the State's procedures and
schedule for ensuring an open and inclusive planning process that
provides meaningful opportunity for public comment.
Sec. 641.355 Who may comment on the State Plan?
Any individual or organization may comment on the Plan.
Sec. 641.360 How does the State Plan relate to the equitable
distribution report?
The two documents address some of the same areas, but are prepared
at different points in time. The equitable distribution report is
prepared by State grantees at the beginning of each fiscal year and
provides a ``snapshot'' of the
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actual distribution of all of the authorized positions within the State,
grantee-by-grantee, and the optimum number of participant positions in
each designated area based on the latest available Census or other
reliable data. The State Plan is prepared by the Governor, or the
highest government official, and covers many areas in addition to
equitable distribution, as discussed in Sec. 641.325, and sets forth a
proposed plan for distribution of authorized positions in the State. Any
distribution or redistribution of positions made as a result of a State
Plan proposal will be reflected in the next equitable distribution
report, which then forms the basis for the proposed distribution in the
next State Plan update. This process is iterative in that it moves the
authorized positions from overserved areas to underserved areas over a
period of time.
Sec. 641.365 How must the equitable distribution provisions be
reconciled with the provision that disruptions to current
participants should be avoided?
(a) Governors, or highest government officials, must describe in the
State Plan the steps that are being taken to comply with the statutory
requirement to avoid disruptions in the provision of services for
participants. (OAA Sec. 503(a)(6)).
(b) When there is new Census or other reliable data indicating that
there has been a shift in the location of the eligible population or
when there is over-enrollment for any other reason, the Department
recommends a gradual shift in positions as they become vacant to areas
where there has been an increase in the eligible population.
(c) The Department does not define disruptions to mean that
participants are entitled to remain in a subsidized community service
assignment indefinitely. As discussed in Sec. 641.570, there is a time
limit on SCSEP participation, thus permitting positions to be
transferred over time.
(d) Grantees and sub-recipients must not transfer positions from one
geographic area to another without first notifying the State agency
responsible for preparing the State Plan and equitable distribution
report.
(e) Grantees must submit, in writing, any proposed changes in
distribution that occur after submission of the equitable distribution
report to the Department for approval.
(f) All grantees are required to coordinate any proposed changes in
position distribution with the other grantees in the State, including
the State project director, before submitting the proposed changes to
the Department for approval. The request for the Department's approval
must include the comments of the State project director, which the
Department will consider in making its decision.
Subpart D_Grant Application and Responsibility Review Requirements for
State and National SCSEP Grants
Sec. 641.400 What entities are eligible to apply to the Department for
funds to administer SCSEP projects?
(a) National grants. Entities eligible to apply for national grants
include nonprofit organizations, Federal public agencies, and tribal
organizations. These entities must provide information to establish that
they are capable of administering a multi-State program, as required by
the Secretary. State and local agencies may not apply for these funds.
(b) State grants. (1) Section 506(e) of the OAA requires the
Department to award each State a grant to provide SCSEP services.
Governors, or highest government officials, designate an individual
State agency as the organization to administer SCSEP funds.
(2) If the State fails to meet its expected levels of performance
for the core indicators for three consecutive years, it is not eligible
to designate an agency to administer SCSEP funds in the following year.
Instead, the State must conduct a competition to select an organization
as the grantee of the funds allotted to the State under Sec. 506(e).
Public and nonprofit private agencies and organizations, State agencies
other than the previously designated, failed agency, and tribal
organizations, are eligible to be selected as a grantee for the funds.
Other States may not be selected as a grantee for this funding.
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Sec. 641.410 How does an eligible entity apply?
(a) General. An eligible entity must follow the application
guidelines issued by the Department. The Department will issue
application guidelines announcing the availability of national funds and
State funds, whether they are awarded on a competitive or noncompetitive
basis. The guidelines will contain application due dates, application
instructions, evaluation criteria, and other necessary information.
(b) National grant applicants. All applicants for SCSEP national
grant funds, except for applications for grants proposing to serve older
Indians and Pacific Island and Asian Americans with funds reserved under
OAA Sec. 506(a)(3), must submit their applications to the Governor, or
the highest government official, of each State in which projects are
proposed so that he or she has a reasonable opportunity to make the
recommendations described in Sec. 641.480, before submitting the
application to the Department. (OAA Sec. 503(a)(5)).
(c) State applicants. A State that submits a Unified Plan under
Sec. 501 of WIA may include the State's SCSEP grant application in its
Unified Plan. Any State that submits a SCSEP grant application as part
of its WIA Unified Plan must address all of the application requirements
as published in the Department's instructions. Sections 641.300 through
641.365 address State Plans and modifications.
Sec. 641.420 What are the eligibility criteria that each applicant
must meet?
To be eligible to receive SCSEP funds, each applicant must
demonstrate:
(a) An ability to administer a program that serves the greatest
number of eligible participants, giving particular consideration to
individuals with greatest economic need, individuals with greatest
social need, and individuals described in Sec. 641.570(b) or Sec.
641.520(a)(2) through (a)(8).
(b) An ability to administer a program that provides employment in
community service assignments for eligible individuals in communities in
which they reside, or in nearby communities, that will contribute to the
general welfare of the community;
(c) An ability to administer a program that moves eligible
participants into unsubsidized employment;
(d) Where the applicant has previously received a SCSEP grant, the
applicant's prior performance in meeting SCSEP core measures of
performance and addressing SCSEP additional measures of performance; and
where the applicant has not received a SCSEP grant, the applicant's
prior performance under other Federal or State programs; relevant past
performance will also be used for scoring criterion and will be set
forth more fully in the Solicitation for Grant Applications (see Sec.
641.460);
(e) An ability to move participants with multiple barriers to
employment, including individuals described in Sec. 641.570(b) or Sec.
641.520(a)(2) through (a)(8), into unsubsidized employment;
(f) An ability to coordinate activities with other organizations at
the State and local levels, including the One-Stop delivery system;
(g) An ability to properly manage the program, as reflected in its
plan for fiscal management of the SCSEP;
(h) An ability to administer a project that provides community
service;
(i) An ability to minimize program disruption for current
participants and in community services provided if there is a change in
project sponsor and/or location, and its plan for minimizing
disruptions;
(j) Any additional criteria that the Department deems appropriate to
minimize disruptions for current participants. (OAA Sec. 514(c)).
Sec. 641.430 What are the responsibility conditions that an applicant
must meet?
Subject to Sec. 641.440, each applicant must meet the listed
responsibility ``tests'' by not having committed the following acts:
(a) The Department has been unable to recover a debt from the
applicant, whether incurred by the applicant or by one of its sub-
recipients, or the applicant has failed to comply with a debt repayment
plan to which it agreed. In this context, a debt is established by final
agency action, followed
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by three demand letters to the applicant, without payment in full by the
applicant.
(b) Established fraud or criminal activity of a significant nature
within the applicant's organization.
(c) Serious administrative deficiencies identified by the
Department, such as failure to maintain a financial management system as
required by Federal regulations.
(d) Willful obstruction of the auditing or monitoring process.
(e) Failure to provide services to applicants as agreed to in a
current or recent grant or to meet applicable core performance measures
or address other applicable indicators of performance.
(f) Failure to correct deficiencies brought to the grantee's
attention in writing as a result of monitoring activities, reviews,
assessments, or other activities.
(g) Failure to return a grant closeout package or outstanding
advances within 90 days after the grant expiration date or receipt of
closeout package, whichever is later, unless an extension has been
requested and granted.
(h) Failure to submit required reports.
(i) Failure to properly report and dispose of Government property as
instructed by the Department.
(j) Failure to have maintained effective cash management or cost
controls resulting in excess cash on hand.
(k) Failure to ensure that a sub-recipient complies with applicable
audit requirements, including OMB Circular A-133 and the audit
requirements specified at Sec. 641.821.
(l) Failure to audit a sub-recipient within the period required
under Sec. 641.821.
(m) Final disallowed costs in excess of five percent of the grant or
contract award if, in the judgment of the Grant Officer, the
disallowances are egregious findings.
(n) Failure to establish a mechanism to resolve a sub-recipient's
audit in a timely fashion. (OAA Sec. 514(d)(4)).
Sec. 641.440 Are there responsibility conditions that alone will
disqualify an applicant?
(a) Yes, an applicant may be disqualified if
(1) Either of the first two responsibility tests, a or b, listed in
Sec. 641.430 is not met, or
(2) The applicant substantially, or persistently for two or more
consecutive years, fails one of the other responsibility tests listed in
Sec. 641.430.
(b) The second responsibility test addresses ``fraud or criminal
activity of a significant nature.'' The Department will determine the
existence of significant fraud or criminal activity which typically will
include willful or grossly negligent disregard for the use or handling
of, or other fiduciary duties concerning, Federal funding, where the
grantee has no effective systems, checks, or safeguards to detect or
prevent fraud or criminal activity. Additionally, significant fraud or
criminal activity will typically include coordinated patterns or
behaviors that pervade a grantee's administration or are committed by
the higher levels of a grantee's management or authority. The Department
will determine whether ``fraud or criminal activity of a significant
nature'' has occurred on a case-by-case basis, regardless of what party
identifies the alleged fraud or criminal activity.
Sec. 641.450 How will the Department examine the responsibility of
eligible entities?
The Department will review available records to assess each
applicant's overall fiscal and administrative ability to manage Federal
funds. The Department's responsibility review may consider all relevant
information, including the organization's history of managing other
grants awarded by the Department or by other Federal agencies. (OAA
Sec. 514(d)(1) and (d)(2)).
Sec. 641.460 What factors will the Department consider in selecting
national grantees?
The Department will select national grantees from among applicants
that are able to meet the eligibility and responsibility review criteria
at Sec. 514 of the OAA. (Section 641.420 contains the eligibility
criteria and Sec. Sec. 641.430 and 641.440 contain the responsibility
criteria.) The Department also will take the rating criteria described
in the Solicitation for Grant Applications or
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other instrument into consideration. These rating criteria will include
relevant past performance.
Sec. 641.465 Under what circumstances may the Department reject an
application?
(a) The Department may question any proposed project component of an
application if it believes that the component will not serve the
purposes of the SCSEP. The Department may reject the application if the
applicant does not submit or negotiate an acceptable alternative.
(b) The Department may reject any application that the Grant Officer
determines unacceptable based on the content of the application, rating
score, past performance, fiscal management, or any other factor the
Grant Officer believes serves the best interest of the program,
including the application's comparative rating in a competition.
Sec. 641.470 What happens if an applicant's application is rejected?
(a) Any entity whose application is rejected in whole or in part
will be informed that it has not been selected. The non-selected entity
may request an explanation of the Department's basis for its rejection.
If requested, the Department will provide the entity with feedback on
its proposal. The non-selected entity may follow the procedures in Sec.
641.900.
(b) Incumbent grantees will not have an opportunity to obtain
technical assistance provided by the Department under OAA Sec.
513(d)(2)(B)(i) to cure, in an open competition, any deficiency in a
proposal because that will create inequity in favor of incumbents. Nor,
during an open competition, will the Department provide assistance to
any applicant to improve its application.
(c) If the Administrative Law Judge (ALJ) rules, under Sec.
641.900, that the organization should have been selected, in whole or in
part, the matter must be remanded to the Grant Officer. The Grant
Officer must, within 10 working days, determine whether the organization
continues to meet the requirements of this part, and whether the
positions which are the subject of the ALJ's decision will be awarded,
in whole or in part, to the organization and the timing of the award. In
making this determination, the Grant Officer must take into account
disruption to participants, disruption to grantees, and the operational
needs of the SCSEP.
(d) In the event that the Grant Officer determines that it is not
feasible to award any positions to the appealing applicant, the
applicant will be awarded its bid preparation costs, or a pro rata share
of those costs if the Grant Officer's finding applies to only a portion
of the funds that would be awarded. If positions are awarded to the
appealing applicant, that applicant is not entitled to the full grant
amount but will only receive the funds remaining in the grant that have
not been expended by the current grantee through its operation of the
grant and its subsequent closeout. The available remedy in a SCSEP non-
selection appeal is neither retroactive nor immediately effective
selection; rather it is the potential to be selected as a SCSEP grantee
as quickly as administratively feasible in the future, for the remainder
of the grant cycle.
(e) In the event that any party notifies the Grant Officer that it
is not satisfied with the Grant Officer's decision, the Grant Officer
must return the decision to the ALJ for review.
(f) Any organization selected and/or funded as a SCSEP grantee is
subject to having its positions reduced or to being removed as a SCSEP
grantee if an ALJ decision so orders. The Grant Officer provides
instructions on transition and closeout to both the newly designated
grantee and to the grantee whose positions are affected or which is
being removed. All parties must agree to the provisions of this
paragraph as a condition of being a SCSEP grantee.
Sec. 641.480 May the Governor, or the highest government official,
make recommendations to the Department on national grant
applications?
(a) Yes, in accordance with Sec. 641.410(b), each Governor, or
highest government official, will have a reasonable opportunity to make
comments on any application to operate a
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SCSEP project located in the Governor's, or the highest government
official's, State before the Department makes a final decision on a
grant award. The Governor's, or the highest government official's,
comments should be directed to the Department and may include the
anticipated effect of the proposal on the overall distribution of
program positions within the State; recommendations for redistribution
of positions to underserved areas as vacancies occur in previously
encumbered positions in other areas; and recommendations for
distributing any new positions that may become available as a result of
an increase in funding for the State. The Governor's, or the highest
government official's, recommendations should be consistent with the
State Plan. (OAA Sec. 503(a)(5)).
(b) The Governor, or the highest government official, has the option
of making the authorized recommendations on all applications or only on
those applications proposed for award following the rating process. It
is incumbent on each Governor, or the highest government official, to
inform the Department of his or her intent to review the applications
before or after the rating process.
Sec. 641.490 When will the Department compete SCSEP grant awards?
(a)(1) The Department will hold a full and open competition for
national grants every four years. (OAA Sec. 514(a)(1)).
(2) If a national grantee meets the expected level of performance
for each of the core indicators for each of the four years, the
Department may provide an additional one-year grant to the national
grantee. (OAA Sec. 514(a)(2)).
Sec. 641.495 When must a State compete its SCSEP award?
If a State grantee fails to meet its expected levels of performance
for three consecutive Program Years, the State must hold a full and open
competition, under such conditions as the Secretary may provide, for the
State SCSEP funds for the full Program Year following the determination
of consecutive failure. (OAA Sec. 513(d)(3)(B)(iii)). The incumbent
(failed) grantee is not eligible to compete. Other states are also not
eligible to compete for these funds. Sec. 641.400(b)(2).
Subpart E_Services to Participants
Sec. 641.500 Who is eligible to participate in the SCSEP?
Anyone who is at least 55 years old, unemployed (as defined in Sec.
641.140), and who is a member of a family with an income that is not
more than 125 percent of the family income levels prepared by the
Department of Health and Human Services and approved by OMB (Federal
poverty guidelines) is eligible to participate in the SCSEP. (OAA Sec.
518(a)(3), (8)). A person with a disability may be treated as a ``family
of one'' for income eligibility determination purposes at the option of
the applicant.
Sec. 641.505 When is eligibility determined?
Initial eligibility is determined at the time individuals apply to
participate in the SCSEP. Once individuals become SCSEP participants,
the grantee or sub-recipient is responsible for verifying their
continued eligibility at least once every 12 months. Grantees and sub-
recipients may also verify an individual's eligibility as circumstances
require, including instances when enrollment is delayed.
Sec. 641.507 How is applicant income computed?
An applicant's income is computed by calculating the includable
income received by the applicant during the 12-month period ending on
the date an individual submits an application to participate in the
SCSEP, or the annualized income for the 6-month period ending on the
application date. The Department requires grantees to use whichever
method is more favorable to the individual. (OAA Sec. 518(a)(4)).
Sec. 641.510 What types of income are included and excluded for
participant eligibility determinations?
(a) With certain exceptions, the Department will use the definition
of income from the U.S. Census Bureau's Current Population Survey (CPS)
as
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the standard for determining SCSEP applicant income eligibility.
(b) Any income that is unemployment compensation, a benefit received
under title XVI of the Social Security Act (42 U.S.C. 1381 et seq.), a
payment made to or on behalf of veterans or former members of the Armed
Forces under the laws administered by the Secretary of Veterans Affairs,
or 25 percent of a benefit received under title II of the Social
Security Act (42 U.S.C. 401 et seq.), must be excluded from SCSEP income
eligibility determinations. (OAA Sec. 518(a)(3)(A)).
(c) The Department has issued administrative guidance on income
inclusions and exclusions and procedures for determining SCSEP income
eligibility. This guidance may be updated periodically.
Sec. 641.512 May grantees and sub-recipients enroll otherwise eligible
job ready individuals and place them directly into
unsubsidized employment?
No, grantees and sub-recipients may not enroll as SCSEP participants
job-ready individuals who can be directly placed into unsubsidized
employment. Such individuals should be referred to an employment
provider, such as the One-Stop Center for job placement assistance under
WIA or another employment program.
Sec. 641.515 How must grantees and sub-recipients recruit and select
eligible individuals for participation in the SCSEP?
(a) Grantees and sub-recipients must develop methods of recruitment
and selection that assure that the maximum number of eligible
individuals have an opportunity to participate in the program. To the
extent feasible, grantees and sub-recipients should seek to enroll
minority and Indian eligible individuals, eligible individuals with
limited English proficiency, and eligible individuals with greatest
economic need, at least in proportion to their numbers in the area,
taking into consideration their rates of poverty and unemployment. (OAA
Sec. 502(b)(1)(M)).
(b) Grantees and sub-recipients must use the One-Stop delivery
system as one method in the recruitment and selection of eligible
individuals to ensure that the maximum number of eligible individuals
have an opportunity to participate in the project. (OAA Sec.
502(b)(1)(H)).
(c) States may enter into agreements among themselves to permit
cross-border enrollment of eligible participants. Such agreements should
cover both State and national grantee positions and must be submitted to
the Department for approval in the grant application or a modification
of the grant.
Sec. 641.520 Are there any priorities that grantees and sub-recipients
must use in selecting eligible individuals for participation
in the SCSEP?
(a) Yes, in selecting eligible individuals for participation in the
SCSEP, priority must be given to individuals who have one or more of the
following characteristics:
(1) Are 65 years of age or older;
(2) Have a disability;
(3) Have limited English proficiency or low literacy skills;
(4) Reside in a rural area;
(5) Are veterans (or, in some cases, spouses of veterans) for
purposes of Sec. 2(a) of the Jobs for Veterans Act, 38 U.S.C. 4215(a)
as set forth in paragraph (b) of this section;
(6) Have low employment prospects;
(7) Have failed to find employment after using services provided
through the One-Stop delivery system; or
(8) Are homeless or are at risk for homelessness. (OAA Sec.
518(b)).
(b) Section 2(a) of the Jobs for Veterans Act creates a priority for
service for veterans (and, in some cases, spouses of veterans) who
otherwise meet the program eligibility criteria for the SCSEP. 38 U.S.C.
4215(a). Priority is extended to veterans. Priority is also extended to
the spouse of a veteran who died of a service-connected disability; the
spouse of a member of the Armed Forces on active duty who has been
listed for a total of more than 90 days as missing in action, captured
in the line of duty by a hostile force, or forcibly detained by a
foreign government or power; the spouse of any veteran who has a total
disability resulting from a service-connected disability; and the spouse
of any veteran who died while a disability so evaluated was in
existence.
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(c) Grantees and sub-recipients must apply these priorities in the
following order:
(1) Persons who qualify as a veteran or qualified spouse under Sec.
2(a) of the Jobs for Veterans Act, 38 U.S.C. 4215(a), and who possess at
least one of the other priority characteristics;
(2) Persons who qualify as a veteran or qualified spouse under Sec.
2(a) of the Jobs for Veterans Act, 38 U.S.C. 4215(a), who do not possess
any other of the priority characteristics;
(3) Persons who do not qualify as a veteran or qualified spouse
under Sec. 2(a) of the Jobs for Veterans Act (non-veterans), and who
possess at least one of the other priority characteristics.
Sec. 641.535 What services must grantees and sub-recipients provide to
participants?
(a) When individuals are selected for participation in the SCSEP,
the grantee or sub-recipient is responsible for:
(1) Providing orientation to the SCSEP, including information on
project goals and objectives, community service assignments, training
opportunities, available supportive services, the availability of a free
physical examination, participant rights and responsibilities, and
permitted and prohibited political activities;
(2)(i) Assessing participants' work history, skills and interests,
talents, physical capabilities, aptitudes, needs for supportive
services, occupational preferences, training needs, potential for
performing community service assignments, and potential for transition
to unsubsidized employment;
(ii) Performing an initial assessment upon program entry, unless an
assessment has already been performed under title I of WIA as provided
in Sec. 641.230. Subsequent assessments may be made as necessary, but
must be made no less frequently than two times during a twelve month
period (including the initial assessment);
(3)(i) Using the information gathered during the initial assessment
to develop an IEP that includes an appropriate employment goal for each
participant, except that if an assessment has already been performed and
an IEP developed under title I of WIA, the WIA assessment and IEP will
satisfy the requirement for a SCSEP assessment and IEP as provided in
Sec. 641.230;
(ii) Updating the IEP as necessary to reflect information gathered
during the subsequent participant assessments (OAA Sec. 502(b)(1)(N));
(iii) The initial IEP should include an appropriate employment goal
for each participant. Thereafter, if the grantee determines that the
participant is not likely to obtain unsubsidized employment, the IEP
must reflect other approaches to help the participant achieve self-
sufficiency, including the transition to other services or programs.
(4) Placing participants in appropriate community service
assignments in the community in which they reside, or in a nearby
community (OAA Sec. 502(b)(1)(B));
(5) Providing or arranging for training identified in participants'
IEPs and consistent with the SCSEP's goal of unsubsidized employment
(OAA Sec. 502(a)(1), 502(b)(1)(B), 502(b)(1)(I), 502(b)(1)(N)(ii));
(6) Assisting participants in obtaining needed supportive services
identified in their IEPs (OAA Sec. 502(b)(1)(N));
(7) Providing appropriate services for participants, or referring
participants to appropriate services, through the One-Stop delivery
system established under WIA (OAA Sec. 502(b)(1)(O));
(8) Providing counseling on participants' progress in meeting the
goals and objectives identified in their IEPs, and in meeting their
supportive service needs (OAA Sec. 502(b)(1)(N)(iii));
(9) Providing participants with wages and benefits for time spent in
the community service assignment, orientation, and training (OAA Sec.
502(b)(1)(I), 502(b)(1)(J), 502(c)(6)(A)(i)) (see also Sec. Sec.
641.565 and 641.540(f), addressing wages and benefits);
(10) Ensuring that participants have safe and healthy working
conditions at their community service employment worksites (OAA Sec.
502(b)(1)(J));
(11) Assisting participants in obtaining unsubsidized employment,
including providing or arranging for employment counseling in support of
their IEPs;
(b) The Department may issue administrative guidance that clarifies
the requirements of paragraph (a).
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(c) Grantees may not use SCSEP funds for job ready individuals who
only need job search assistance or job referral services. Grantees may
provide job search assistance and job club activities to participants
who are enrolled in the SCSEP and are assigned to community service
assignments. (See also Sec. 641.512).
Sec. 641.540 What types of training may grantees and sub-recipients
provide to SCSEP participants in addition to the training
received at a community service assignment?
(a) In addition to the training provided in a community service
assignment, grantees and sub-recipients may arrange skill training
provided that it:
(1) Is realistic and consistent with the participants' IEP;
(2) Makes the most effective use of the participant's skills and
talents; and
(3) Prepares the participant for unsubsidized employment.
(b) Training may be provided before or during a community service
assignment.
(c) Training may be in the form of lectures, seminars, classroom
instruction, individual instruction, online instruction, on-the-job
experiences. Training may be provided by the grantee or through other
arrangements, including but not limited to, arrangements with other
workforce development programs such as WIA. (OAA Sec.
502(c)(6)(A)(ii)).
(d) Grantees and sub-recipients are encouraged to obtain training
through locally available resources, including host agencies, at no cost
or reduced cost to the SCSEP.
(e) Grantees and sub-recipients may pay for participant training,
including the payment of reasonable costs of instructors, classroom
rental, training supplies, materials, equipment, and tuition. (OAA Sec.
502(c)(6)(A)(ii)).
(f) Participants must be paid wages while in training, as described
in Sec. 641.565(a). (OAA Sec. 502(b)(1)(I)).
(g) As provided in Sec. 641.545, grantees and sub-recipients may
pay for costs associated with supportive services, such as
transportation, necessary to participate in training. (OAA Sec.
502(b)(1)(L)).
(h) Nothing in this section prevents or limits participants from
engaging in self-development training available through other sources,
at their own expense, during hours when not performing their community
service assignments.
Sec. 641.545 What supportive services may grantees and sub-recipients
provide to participants?
(a) Grantees and sub-recipients are required to assess all
participants' need for supportive services and to make every effort to
assist participants in obtaining needed supportive services. Grantees
and sub-recipients may provide directly or arrange for supportive
services that are necessary to enable an individual to successfully
participate in a SCSEP project, including but not limited to payment of
reasonable costs of transportation; health and medical services; special
job-related or personal counseling; incidentals such as work shoes,
badges, uniforms, eyeglasses, and tools; dependent care; housing,
including temporary shelter; needs-related payments; and follow-up
services. (OAA Sec. Sec. 502(c)(6)(A)(iv), 518(a)(7)).
(b) To the extent practicable, the grantee or sub-recipient should
arrange for the payment of these expenses from other resources.
(c) Grantees and sub-recipients are encouraged to contact placed
participants throughout the first 12 months following placement to
determine if they have the necessary supportive services to remain in
the job and to provide or arrange to provide such services if feasible.
Sec. 641.550 What responsibility do grantees and sub-recipients have
to place participants in unsubsidized employment?
For those participants whose IEPs include a goal of unsubsidized
employment, grantees and sub-recipients are responsible for working with
participants to ensure that the participants are receiving services and
taking actions designed to help them achieve this goal. Grantees and
sub-recipients must contact private and public employers directly or
through the One-Stop delivery system to develop or
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identify suitable unsubsidized employment opportunities. They must also
encourage host agencies to assist participants in their transition to
unsubsidized employment, including unsubsidized employment with the host
agency.
Sec. 641.565 What policies govern the provision of wages and benefits
to participants?
(a) Wages. (1)(i) Grantees and sub-recipients must pay participants
the highest applicable required wage for time spent in orientation,
training, and community service assignments.
(ii) SCSEP participants may be paid the highest applicable required
wage while receiving WIA intensive services.
(2) The highest applicable required wage is either the minimum wage
applicable under the Fair Labor Standards Act of 1938; the State or
local minimum wage for the most nearly comparable covered employment; or
the prevailing rate of pay for persons employed in similar public
occupations by the same employer.
(3) Grantees and sub-recipients must make any adjustments to minimum
wage rates payable to participants as may be required by Federal, State,
or local statute during the grant term.
(b) Benefits--(1) Required benefits. Except as provided in paragraph
(b)(2) of this section, grantees and sub-recipients must ensure that
participants receive such benefits as are required by law.
(i) Grantees and sub-recipients must provide benefits uniformly to
all participants within a project or subproject, unless the Department
agrees to waive this provision due to a determination that such a waiver
is in the best interests of applicants, participants, and project
administration.
(ii) Grantees and sub-recipients must offer participants the
opportunity to receive physical examinations annually.
(A) Physical examinations are a benefit, and not an eligibility
criterion. The examining physician must provide, to the participant
only, a written report of the results of the examination.
(B) Participants may choose not to accept the physical examination.
In that case, the grantee or sub-recipient must document this refusal,
through a signed statement, within 60 workdays after commencement of the
community service assignment. Each year thereafter, grantees and sub-
recipients must offer the physical examination and document the offer
and any participant's refusal.
(C) Grantees and sub-recipients may use SCSEP funds to pay the costs
of physical examinations.
(iii) When participants are not covered by the State workers'
compensation law, the grantee or sub-recipient must provide participants
with workers' compensation benefits equal to those provided by law for
covered employment. OAA Sec. 504(b).
(iv) If required by State law, grantees/sub-recipients must provide
unemployment compensation coverage for participants.
(v) Grantees and sub-recipients must provide compensation for
scheduled work hours during which a host agency's business is closed for
a Federal holiday, which may be paid or in the form of rescheduled work
time.
(vi) Grantees and sub-recipients must provide necessary sick leave
that is not part of an accumulated sick leave program, which may be paid
or in the form of rescheduled work time.
(2) Prohibited wage and benefits costs. (i) Participants may not
carry over allowable benefits from one Program Year to the next;
(ii) Grantees and sub-recipients may not provide payment or
otherwise compensate participants for unused benefits such as sick leave
or holidays;
(iii) Grantees and sub-recipients may not use SCSEP funds to cover
costs associated with the following participant benefits:
(A) Retirement. Grantees and sub-recipients may not use SCSEP funds
to provide contributions into a retirement system or plan, or to pay the
cost of pension benefits for program participants.
(B) Annual leave.
(C) Accumulated sick leave.
(D) Bonuses. (OAA Sec. 502(c)(6)(A)(i)).
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Sec. 641.570 Is there a time limit for participation in the program?
(a) Individual time limit. (1) Eligible individuals may participate
in the program for a maximum duration of 48 months in the aggregate
(whether or not consecutive), from the later of July 1, 2007, or the
date of the individual's enrollment in the program.
(2) At the time of enrollment, the grantee or sub-recipient must
inform the participant of this time limit and the possible extension
available under paragraph (b) of this section, and the grantee or sub-
recipient must provide for a system to transition participants to
unsubsidized employment or other assistance before the maximum
enrollment duration has expired. Provisions for transition must be
reflected in the participant's IEP.
(3) If requested by a grantee or sub-recipient, the Department will
authorize an extension for individuals who meet the criteria in
paragraph (b) of this section. Notwithstanding any individual extensions
granted, grantees and sub-recipients must ensure that projects do not
exceed the overall average participation cap for all participants, as
described in paragraph (c) of this section.
(b) Increased periods of individual participation. If requested by a
grantee, the Department will authorize increased periods of
participation for individuals who:
(1) Have a severe disability;
(2) Are frail or are age 75 or older;
(3) Meet the eligibility requirements related to age for, but do not
receive, benefits under title II of the Social Security Act (42 U.S.C.
401 et seq.);
(4) Live in an area with persistent unemployment and are individuals
with severely limited employment prospects; or
(5) Have limited English proficiency or low literacy skills.
(c) Average grantee participation cap. (1) Notwithstanding any
individual extension authorized under paragraph (b) of this section,
each grantee must manage its SCSEP project in such a way that the
grantee does not exceed an average participation cap for all
participants of 27 months (in the aggregate).
(2) A grantee may request, and the Department may authorize, an
extended average participation period of up to 36 months (in the
aggregate) for a particular project area in a given Program Year if the
Department determines that extenuating circumstances exist to justify an
extension, due to one more of the following factors:
(i) High rates of unemployment or of poverty or of participation in
the program of block grants to States for temporary assistance for needy
families established under part A of title IV of the Social Security
Act, in the areas served by a grantee, relative to other areas of the
State involved or the Nation;
(ii) Significant downturns in the economy of an area served by the
grantee or in the national economy;
(iii) Significant numbers or proportions of participants with one or
more barriers to employment, including ``most-in-need'' individuals
described in Sec. 641.710(a)(6), served by a grantee relative to such
numbers or proportions for grantees serving other areas of the State or
Nation;
(iv) Changes in Federal, State, or local minimum wage requirements;
or
(v) Limited economies of scale for the provision of community
service employment and other authorized activities in the areas served
by the grantee.
(3) For purposes of the average participation cap, each grantee will
be considered to be one project.
(d) Authorized break in participation. On occasion a participant
takes an authorized break in participation from the program, such as a
formal leave of absence necessitated by personal circumstances or a
break caused because a suitable community service assignment is not
available. Such an authorized break, if taken under a formal grantee
policy allowing such breaks and formally entered into the SCSEP
Performance and Results Quarterly Performance Reporting (SPARQ) system,
will not count toward the individual time limit described in paragraph
(a) or the average participation cap described in paragraph (c) of this
section.
(e) Administrative guidance. The Department will issue
administrative guidance detailing the process by which a grantee may
request increased
[[Page 218]]
periods of individual participation, and the process by which a grantee
may request an extension of the average participation cap. The process
will require that the determination of individual participant extension
requests is made in a fair and equitable manner.
(f) Grantee authority. Grantees may limit the time of participation
for individuals to less than the 48 months described in paragraph (a) of
this section, if the grantee uniformly applies the lower participation
limit, and if the grantee submits a description of the lower
participation limit policy in its grant application or modification of
the grant and the Department approves the policy. (OAA Sec. Sec.
502(b)(1)(C), 518(a)(3)(B)).
Sec. 641.575 May a grantee or sub-recipient establish a limit on the
amount of time its participants may spend at a host agency?
Yes, grantees and sub-recipients may establish limits on the amount
of time that participants spend at a particular host agency, and are
encouraged to rotate participants among different host agencies, or to
different assignments within the same host agency, as such rotations may
increase participants' skills development and employment opportunities.
Such limits must be established in the grant agreement or modification
of the grant, and approved by the Department. The Department will not
approve any limit that does not require an individualized determination
that rotation is in the best interest of the participant and will
further the acquisition of skills listed in the IEP. Host agency
rotations have no effect on either the individual participation limit or
the average participation cap.
Sec. 641.577 Is there a limit on community service assignment hours?
While there is no specific limit on the number of hours that may be
worked in a community service assignment, a community service assignment
must be a part-time position. However, the Department strongly
encourages grantees to use 1,300 hours as a benchmark and good practice
for monitoring community service hours.
Sec. 641.580 Under what circumstances may a grantee or sub-recipient
terminate a participant?
(a) If, at any time, a grantee or sub-recipient determines that a
participant was incorrectly declared eligible as a result of false
information knowingly given by that individual, the grantee or sub-
recipient must give the participant immediate written notice explaining
the reason(s) for termination and may terminate the participant 30 days
after it has provided the participant with written notice.
(b) If, during eligibility verification under Sec. 641.505, a
grantee or sub-recipient finds a participant to be no longer eligible
for enrollment, the grantee or sub-recipient must give the participant
written notice explaining the reason(s) for termination and may
terminate the participant 30 days after it has provided the participant
with written notice.
(c) If, at any time, the grantee or sub-recipient determines that it
incorrectly determined a participant to be eligible for the program
through no fault of the participant, the grantee or sub-recipient must
give the participant immediate written notice explaining the reason(s)
for termination and may terminate the participant 30 days after it has
provided the participant with written notice.
(d) A grantee or sub-recipient may terminate a participant for
cause. Grantees must include their policies concerning for-cause
terminations in the grant application and obtain the Department's
approval. The grantee or sub-recipient must give the participant written
notice explaining the reason(s) for termination and may terminate the
participant 30 days after it has provided the participant with written
notice.
(e) A grantee or sub-recipient may terminate a participant if the
participant refuses to accept a reasonable number of job offers or
referrals to unsubsidized employment consistent with the IEP and there
are no extenuating circumstances that would hinder the participant from
moving to unsubsidized employment. The grantee or sub-recipient must
give the participant written notice explaining the reason(s) for
termination and may terminate the
[[Page 219]]
participant 30 days after it has provided the participant with written
notice.
(f) When a grantee or sub-recipient makes an unfavorable
determination of enrollment eligibility under paragraph (b) or (c) of
this section, it should refer the individual to other potential sources
of assistance, such as the One-Stop delivery system. When a grantee or
sub-recipient terminates a participant under paragraph (d) or (e) of
this section, it may refer the individual to other potential sources of
assistance, such as the One-Stop delivery system.
(g) Grantees and sub-recipients must provide each participant at the
time of enrollment with a written copy of its policies for terminating a
participant for cause or otherwise, and must verbally review those
policies with each participant.
(h) Any termination, as described in paragraphs (a) through (e) of
this section, must be consistent with administrative guidelines issued
by the Department and the termination notice must inform the participant
of the grantee's grievance procedure, and the termination must be
subject to the applicable grievance procedures described in Sec.
641.910.
(i) Participants may not be terminated from the program solely on
the basis of their age. Grantees and sub-recipients may not impose an
upper age limit for participation in the SCSEP.
Sec. 641.585 What is the employment status of SCSEP participants?
(a) Participants are not considered Federal employees solely as a
result of their participation in the SCSEP. (OAA Sec. 504(a)).
(b) Grantees must determine whether or not a participant qualifies
as an employee of the grantee, sub-recipient, local project, or host
agency, under applicable law. Responsibility for this determination
rests with the grantee even when a Federal agency is a grantee or host
agency.
Subpart F_Pilot, Demonstration, and Evaluation Projects
Sec. 641.600 What is the purpose of the pilot, demonstration, and
evaluation projects authorized under Sec. 502(e) of the OAA?
The purpose of the pilot, demonstration, and evaluation projects
authorized under Sec. 502(e) of the OAA is to develop and implement
techniques and approaches, and to demonstrate the effectiveness of these
techniques and approaches, in addressing the employment and training
needs of individuals eligible for SCSEP.
Sec. 641.610 How are pilot, demonstration, and evaluation projects
administered?
The Department may enter into agreements with States, public
agencies, nonprofit private organizations, or private business concerns,
as may be necessary, to conduct pilot, demonstration, and evaluation
projects.
Sec. 641.620 How may an organization apply for pilot, demonstration,
and evaluation project funding?
Organizations applying for pilot, demonstration, and evaluation
project funding must follow the instructions issued by the Department.
Instructions for these unique funding opportunities are published in
TEGLs available at http://www.doleta.gov/Seniors.
Sec. 641.630 What pilot, demonstration, and evaluation project
activities are allowable under Sec. 502(e)?
Allowable pilot, demonstration and evaluation projects include:
(a) Activities linking businesses and eligible individuals,
including activities providing assistance to participants transitioning
from subsidized activities to private sector employment;
(b) Demonstration projects and pilot projects designed to:
(1) Attract more eligible individuals into the labor force;
(2) Improve the provision of services to eligible individuals under
One-Stop delivery systems established under title I of WIA;
(3) Enhance the technological skills of eligible individuals; and
[[Page 220]]
(4) Provide incentives to SCSEP grantees for exemplary performance
and incentives to businesses to promote their participation in the
SCSEP;
(c) Demonstration projects and pilot projects, as described in
paragraph (b) of this section, for workers who are older individuals
(but targeted to eligible individuals) only if such demonstration
projects and pilot projects are designed to assist in developing and
implementing techniques and approaches in addressing the employment and
training needs of eligible individuals;
(d) Provision of training and technical assistance to support a
SCSEP project;
(e) Dissemination of best practices relating to employment of
eligible individuals; and
(f) Evaluation of SCSEP activities.
Sec. 641.640 Should pilot, demonstration, and evaluation project
entities coordinate with SCSEP grantees and sub-recipients,
including area agencies on aging?
(a) To the extent practicable, the Department will provide an
opportunity, before the development of a demonstration or pilot project,
for the appropriate area agency on aging and SCSEP grantees and sub-
grantees to submit comments on the project in order to ensure
coordination of SCSEP activities with activities carried out under this
subpart.
(b) To the extent practicable, entities carrying out pilot,
demonstration, and evaluation projects must consult with appropriate
area agencies on aging, SCSEP grantees and sub-grantees, and other
appropriate agencies and entities to promote coordination of SCSEP and
pilot, demonstration, and evaluation activities. (OAA Sec. 502(e)).
Subpart G_Performance Accountability
Sec. 641.700 What performance measures/indicators apply to SCSEP
grantees?
(a) Indicators of performance. There are currently eight performance
measures, of which six are core indicators and two are additional
indicators. Core indicators (defined in Sec. 641.710) are subject to
goal-setting and corrective action (described in Sec. 641.720); that
is, performance level goals for each core indicator must be agreed upon
between the Department and each grantee before the start of each program
year, and if a grantee fails to meet the performance level goals for the
core indicators, that grantee is subject to corrective action.
Additional indicators (defined in Sec. 641.710) are not subject to
goal-setting and are, therefore, also not subject to corrective action.
(b) Core indicators. Section 513(b)(1) of the 2006 OAA establishes
the following core indicators of performance:
(1) Hours (in the aggregate) of community service employment;
(2) Entry into unsubsidized employment;
(3) Retention in unsubsidized employment for six months;
(4) Earnings;
(5) The number of eligible individuals served; and
(6) The number of most-in-need individuals served (the number of
participating individuals described in Sec. 518(a)(3)(B)(ii) or (b)(2)
of the OAA).
(c) Additional indicators. Section 513(b)(2) of the 2006 OAA
establishes the following additional indicators of performance:
(1) Retention in unsubsidized employment for one year; and
(2) Satisfaction of the participants, employers, and their host
agencies with their experiences and the services provided.
(3) Any other indicators of performance that the Secretary
determines to be appropriate to evaluate services and performance.
(4) The Secretary has designated entry into volunteer work as an
additional indicator.
(d) Affected entities. The core indicators of performance and
additional indicators of performance are applicable to each grantee
without regard to whether the grantee operates the program directly or
through sub-contracts, sub-grants, or agreements with other entities.
Grantees must assure that their sub-grantees and lower-tier sub-grantees
are collecting and reporting program data.
(e) Required evaluation and reporting. An agreement to be evaluated
on the
[[Page 221]]
core indicators of performance and to report information on the
additional indicators of performance is a requirement for application
for, and is a condition of, all SCSEP grants.
[75 FR 53812, Sept. 1, 2010, as amended at 77 FR 4661, Jan. 31, 2012]
Effective Date Note: At 77 FR 4661, Jan. 31, 2012, in Sec. 641.700
paragraph (c)(4) was added. This paragraph contains information
collection and recordkeeping requirements and will not become effective
until approval has been given by the Office of Management and Budget.
Sec. 641.710 How are the performance indicators defined?
(a) The core indicators are defined as follows:
(1) ``Hours of community service employment'' is defined as the
total number of hours of community service provided by SCSEP
participants divided by the number of hours of community service funded
by the grantee's grant, after adjusting for differences in minimum wage
among the States and areas. Paid training hours are excluded from this
measure.
(2) ``Entry into unsubsidized employment'' is defined by the
formula: Of those who are not employed at the date of participation: The
number of participants who are employed in the first quarter after the
exit quarter divided by the number of adult participants who exit during
the quarter.
(3) ``Retention in unsubsidized employment for six months'' is
defined by the formula: Of those who are employed in the first quarter
after the exit quarter: The number of adult participants who are
employed in both the second and third quarters after the exit quarter
divided by the number of adult participants who exit during the quarter.
(4) ``Earnings'' is defined by the formula: Of those participants
who are employed in the first, second and third quarters after the exit
quarter: Total earnings in the second quarter plus total earnings in the
third quarter after the exit quarter divided by the number of
participants who exit during the quarter.
(5) ``The number of eligible individuals served'' is defined as the
total number of participants served divided by a grantee's authorized
number of positions, after adjusting for differences in minimum wage
among the States and areas.
(6) ``Most-in-need'' or the number of participating individuals
described in Sec. 518(a)(3)(B)(ii) or (b)(2) is defined by counting the
total number of the following characteristics for all participants and
dividing by the number of participants served. Participants are
characterized as most-in-need if they:
(i) Have a severe disability;
(ii) Are frail;
(iii) Are age 75 or older;
(iv) Meet the eligibility requirements related to age for, but do
not receive, benefits under title II of the Social Security Act (42
U.S.C. 401 et seq.);
(v) Live in an area with persistent unemployment and are individuals
with severely limited employment prospects;
(vi) Have limited English proficiency;
(vii) Have low literacy skills;
(viii) Have a disability;
(ix) Reside in a rural area;
(x) Are veterans;
(xi) Have low employment prospects;
(xii) Have failed to find employment after utilizing services
provided under title I of the Workforce Investment Act of 1998 (29
U.S.C. 2801 et seq.); or
(xiii) Are homeless or at risk for homelessness.
(b) The additional indicators are defined as follows:
(1) ``Retention in unsubsidized employment for 1 year'' is defined
by the formula: Of those who are employed in the first quarter after the
exit quarter: The number of participants who are employed in the fourth
quarter after the exit quarter divided by the number of participants who
exit during the quarter.
(2) ``Satisfaction of the participants, employers, and their host
agencies with their experiences and the services provided'' is defined
as the results of customer satisfaction surveys administered to each of
these three customer groups. The Department will prescribe the content
of the surveys.
(3) ``Entry into volunteer work'' is defined by the formula: Of
those not engaged in volunteer work at the time of entry into the SCSEP,
the number of
[[Page 222]]
such participants who perform volunteer work in the first quarter after
the exit quarter, divided by the number of such participants who exit
during the quarter.
[75 FR 53812, Sept. 1, 2010, as amended at 77 FR 4661, Jan. 31, 2012]
Effective Date Note: At 77 FR 4661, Jan. 31, 2012, in Sec. 641.710
paragraph (b)(3) was added. This paragraph contains information
collection and recordkeeping requirements and will not become effective
until approval has been given by the Office of Management and Budget.
Sec. 641.720 How will the Department and grantees initially determine
and then adjust expected levels of performance for the core
performance measures?
(a) Initial agreement. Before the beginning of each Program Year,
the Department and each grantee will undertake to agree upon expected
levels of performance for each core indicator, except as provided in
paragraph (b) of Sec. 641.730.
(1) As a first step in this process, the Department proposes a
performance level for each core indicator, taking into account any
statutory performance requirements, the need to promote continuous
improvement in the program overall and in each grantee, the grantee's
past performance, and the statutory adjustment factors articulated in
paragraph (b) of this section.
(2) A grantee may request a revision to the Department's initial
performance level goal determination. The request must be based on data
that supports the revision request. The data supplied by the grantee at
this stage may concern the statutory adjustment factors articulated in
paragraph (b) of this section, but is not limited to those factors; it
is permissible for a grantee to supply data on ``other appropriate
factors as determined by the Secretary.'' (OAA Sec. 513(a)(2)(C)).
(3) The Department may revise the performance level goal in response
to the data provided. The Department then sets the expected levels of
performance for the core indicators. At this point, agreement is reached
by the parties and funds may be awarded. If a grantee does not agree
with the offered expected level of performance, agreement is not reached
and no funds may be awarded. A grantee may submit comments to the
Department about the grantee's satisfaction with the expected levels of
performance.
(4) Funds may not be awarded under the grant until such agreement is
reached.
(5) At the conclusion of performance level negotiations with all
grantees, the Department will make available for public review the final
negotiated expected levels of performance for each grantee, including
any comments submitted by the grantee about the grantee's satisfaction
with the negotiated levels.
(6) The minimum percentage for the expected level of performance for
the entry into unsubsidized employment core indicator is:
(i) 21 percent for Program Year 2007;
(ii) 22 percent for Program Year 2008;
(iii) 23 percent for Program Year 2009;
(iv) 24 percent for Program Year 2010; and
(v) 25 percent for Program Year 2011.
(b) Adjustment during the Program Year. After the Department and
grantees reach agreement on the core indicator levels, those levels may
only be revised in response to a request from a grantee based on data
supporting one or more of the following statutory adjustment factors:
(1) High rates of unemployment or of poverty or of participation in
the program of block grants to States for temporary assistance for needy
families established under part A of title IV of the Social Security Act
(42 U.S.C. 601 et seq.), in the areas served by a grantee, relative to
other areas of the State involved or Nation.
(2) Significant downturns in the economy of the areas served by the
grantee or in the national economy.
(3) Significant numbers or proportions of participants with one or
more barriers to employment, including individuals described in Sec.
518(a)(3)(B)(ii) or (b)(2) of the 2006 OAA (most-in-need), served by a
grantee relative to such numbers or proportions for grantees serving
other areas of the State or Nation.
(4) Changes in Federal, State, or local minimum wage requirements.
[[Page 223]]
(5) Limited economies of scale for the provision of community
service employment and other authorized activities in the areas served
by the grantee.
Sec. 641.730 How will the Department assist grantees in the transition
to the new core performance indicators?
(a) General transition provision. As soon as practicable after July
1, 2007, the Department will determine if a SCSEP grantee has, for
Program Year 2006, met the expected levels of performance for the
Program Year 2007. If the Department determines that the grantee failed
to meet Program Year 2007 goals in Program Year 2006, the Department
will provide technical assistance to help the grantee meet those
expected levels of performance in Program Year 2007.
(b) Exception for most-in-need for Program Year 2007. Because the
2006 OAA Amendments expanded the list of most-in-need characteristics,
neither the Department nor the grantees have sufficient data to set a
goal for measuring performance. Accordingly, Program Year 2007 will be
treated as a baseline year for the most-in-need indicator so that the
grantees and the Department may collect sufficient data to set a
meaningful goal for this measure for Program Year 2008.
Sec. 641.740 How will the Department determine whether a grantee
fails, meets, or exceeds the expected levels of performance
for the core indicators and what will be the consequences of
failing to meet expected levels of performance?
(a) Aggregate calculation of performance. Not later than 120 days
after the end of each Program Year, the Department will determine if a
national grantee has met the expected levels of performance (including
any adjustments to such levels) by aggregating the grantee's core
indicators. The aggregate is calculated by combining the percentage of
goal achieved on each of the individual core indicators to obtain an
average score. A grantee will fail to meet its performance measures when
it is does not meet 80 percent of the agreed-upon level of performance
for the aggregate of all the core indicators. Performance in the range
of 80 to 100 percent constitutes meeting the level for the core
performance measures. Performance in excess of 100 percent constitutes
exceeding the level for the core performance measures.
(b) Consequences--
(1) National grantees. (i) If the Department determines that a
national grantee fails to meet the expected levels of performance in a
Program Year, the Department, after each year of such failure, will
provide technical assistance and will require such grantee to submit a
corrective action plan not later than 160 days after the end of the
Program Year.
(ii) The corrective action plan must detail the steps the grantee
will take to meet the expected levels of performance in the next Program
Year.
(iii) Any national grantee that has failed to meet the expected
levels of performance for 4 consecutive years (beginning with Program
Year 2007) will not be allowed to compete in the subsequent grant
competition, but may compete in the next grant competition after that
subsequent competition.
(2) State grantees. (i) If the Department determines that a State
fails to meet the expected levels of performance, the Department, after
each year of such failure, will provide technical assistance and will
require the State to submit a corrective action plan not later than 160
days after the end of the Program Year.
(ii) The corrective action plan must detail the steps the State will
take to meet the expected levels of performance in the next Program
Year.
(iii) If the Department determines that the State fails to meet the
expected levels of performance for 3 consecutive Program Years
(beginning with Program Year 2007), the Department will require the
State to conduct a competition to award the funds allotted to the State
under Sec. 506(e) of the OAA for the first full Program Year following
the Department's determination. The new grantee will be responsible for
administering the SCSEP in the State and will be subject to the same
requirements and responsibilities as had been the State grantee.
(c) Evaluation. The Department will annually evaluate, publish and
make available for public review, information on the actual performance
of each
[[Page 224]]
grantee with respect to the levels achieved for each of the core
indicators of performance, compared to the expected levels of
performance, and the actual performance of each grantee with respect to
the levels achieved for each of the additional indicators of
performance. The results of the Department's annual evaluation will be
reported to Congress.
Sec. 641.750 Will there be performance-related incentives?
The Department is authorized by Sec. Sec. 502(e)(2)(B)(iv) and
517(c)(1) of the 2006 OAA to use recaptured SCSEP funds to provide
incentive awards. The Department will exercise this authority at its
discretion.
Subpart H_Administrative Requirements
Sec. 641.800 What uniform administrative requirements apply to the use
of SCSEP funds?
(a) SCSEP recipients and sub-recipients must follow the uniform
administrative requirements and allowable cost requirements that apply
to their type of organization. (OAA Sec. 503(f)(2)).
(b) Governments, State, local, and Indian tribal organizations that
receive SCSEP funds under grants or cooperative agreements must follow
the common rule implementing OMB Circular A-102, ``Grants and
Cooperative Agreements with State and Local Governments'' (10/07/1994)
(further amended 08/29/1997), codified at 29 CFR part 97.
(c) Nonprofit and commercial organizations, institutions of higher
education, hospitals, other nonprofit organizations, and commercial
organizations that receive SCSEP funds under grants or cooperative
agreements must follow the common rule implementing OMB Circular A-110,
codified at 29 CFR part 95.
Sec. 641.803 What is program income?
Program income, as described in 29 CFR 97.25 (State and local
governments) and 29 CFR 95.2(bb) (non-profit and commercial
organizations), is income earned by the recipient or sub-recipient
during the grant period that is directly generated by an allowable
activity supported by grant funds or earned as a result of the award of
grant funds. Program income includes income earned from license fees and
royalties for copyrighted material, patents, patent applications,
trademarks, and inventions produced under an award. (See 29 CFR 95.24(e)
(non-profit and commercial organizations) and 29 CFR 97.25(e) (State and
local governments)). Costs of generating SCSEP program income may be
deducted from gross income received by SCSEP recipients and sub-
recipients to determine SCSEP program income earned or generated
provided these costs have not been charged to the SCSEP.
Sec. 641.806 How must SCSEP program income be used?
(a) SCSEP recipients that earn or generate program income during the
grant period must add the program income to the Federal and non-Federal
funds committed to the SCSEP and must use it to further the purposes of
the program and in accordance with the terms and conditions of the grant
award. Program income may only be spent during the grant period in which
it was earned (except as provided for in paragraph (b)), as provided in
29 CFR 95.24(a) (non-profit and commercial organizations) or 29 CFR
97.25(g) (2) (State and local governments), as applicable.
(b)(1) Except as provided for in paragraph (b)(2), recipients that
continue to receive a SCSEP grant from the Department must spend program
income earned from SCSEP-funded activities in the Program Year in which
the earned income was received.
(2) Any program income remaining at the end of the Program Year in
which it was earned will remain available for expenditure in the
subsequent Program Year only. Any program income remaining after the
second Program Year must be remitted to the Department.
(c) Recipients that do not continue to receive a SCSEP grant from
the Department must remit unexpended program income earned during the
grant period from SCSEP funded activities to the Department at the end
of the grant period. These recipients have no obligation to the
Department for program income earned after the end of the grant period.
[[Page 225]]
Sec. 641.809 What non-Federal share (matching) requirements apply to
the use of SCSEP funds?
(a) The Department will pay no more than 90 percent of the total
cost of activities carried out under a SCSEP grant. (OAA sec.
502(c)(1)).
(b) All SCSEP recipients, including Federal agencies if there is no
statutory exemption, must provide or ensure that at least 10 percent of
the total cost of activities carried out under a SCSEP grant (non-
Federal share of costs) consists of allowable costs paid for with non-
Federal funds, except as provided in paragraphs (e) and (f) of this
section.
(c) Recipients must determine the non-Federal share of costs in
accordance with 29 CFR 97.24 for governmental units, or 29 CFR 95.23 for
nonprofit and commercial organizations.
(d) The non-Federal share of costs may be provided in cash, or in-
kind, or a combination of the two. (OAA Sec. 502(c)(2)).
(e) A recipient may not require a sub-recipient or host agency to
provide non-Federal resources for the use of the SCSEP project as a
condition of entering into a sub-recipient or host agency relationship.
This does not preclude a sub-recipient or host agency from voluntarily
contributing non-Federal resources for the use of the SCSEP project.
(f) The Department may pay all of the costs of activities in an
emergency or disaster project or a project in an economically distressed
area. (OAA Sec. 502(c)(1)(B)).
Sec. 641.812 What is the period of availability of SCSEP funds?
(a) Except as provided in Sec. 641.815, recipients must expend
SCSEP funds during the Program Year for which they are awarded (July 1-
June 30). (OAA Sec. 517(b)).
(b) SCSEP recipients must ensure that no sub-agreement provides for
the expenditure of any SCSEP funds before the start of the grant year,
or after the end of the grant period, except as provided in Sec.
641.815.
Sec. 641.815 May the period of availability be extended?
SCSEP recipients may request in writing, and the Department may
grant, an extension of the period during which SCSEP funds may be
obligated or expended. SCSEP recipients requesting an extension must
justify that an extension is necessary. (OAA Sec. 517(b)). The
Department will notify recipients in writing of the approval or
disapproval of any such requests.
Sec. 641.821 What audit requirements apply to the use of SCSEP funds?
(a) Recipients and sub-recipients receiving Federal awards of SCSEP
funds must follow the audit requirements in paragraphs (b) and (c) of
this section that apply to their type of organization. As used here,
Federal awards of SCSEP funds include Federal financial assistance and
Federal cost-reimbursement contracts received directly from the
Department or indirectly under awards by SCSEP recipients or higher-tier
sub-recipients. (OAA Sec. 503(f)(2)).
(b) All governmental and nonprofit organizations that are recipients
or sub-recipients must follow the audit requirements of OMB Circular A-
133. These requirements are codified at 29 CFR parts 96 and 99 and
referenced in 29 CFR 97.26 for governmental organizations and in 29 CFR
95.26 for institutions of higher education, hospitals, and other
nonprofit organizations.
(c)(1) The Department is responsible for audits of SCSEP recipients
that are commercial organizations.
(2) Commercial organizations that are sub-recipients under the SCSEP
and that expend more than the minimum level specified in OMB Circular A-
133 ($500,000, for fiscal years ending after December 31, 2003) must
have either an organization-wide audit or a program-specific financial
and compliance audit conducted in accordance with OMB Circular A-133.
Sec. 641.824 What lobbying requirements apply to the use of SCSEP
funds?
SCSEP recipients and sub-recipients must comply with the
restrictions on lobbying codified in the Department's regulations at 29
CFR part 93. (Also refer to Sec. 641.850(c), ``Lobbying costs.'')
[[Page 226]]
Sec. 641.827 What general nondiscrimination requirements apply to the
use of SCSEP funds?
(a) SCSEP recipients, sub-recipients, and host agencies are required
to comply with the nondiscrimination provisions codified in the
Department's regulations at 29 CFR parts 31 and 32 and the provisions on
the equal treatment of religious organizations at 29 CFR part 2 subpart
D.
(b) Recipients and sub-recipients of SCSEP funds are required to
comply with the nondiscrimination provisions codified in the
Department's regulations at 29 CFR part 37 if:
(1) The recipient:
(i) Is a One-Stop partner listed in Sec. 121(b) of WIA, and
(ii) Operates programs and activities that are part of the One-Stop
delivery system established under WIA; or
(2) The recipient otherwise satisfies the definition of
``recipient'' in 29 CFR 37.4.
(c) Recipients must ensure that participants are provided
informational materials relating to age discrimination and/or their
rights under the Age Discrimination in Employment Act of 1975 that are
distributed to recipients by the Department as required by Sec.
503(b)(3) of the OAA.
(d) Questions about or complaints alleging a violation of the
nondiscrimination requirements cited in this section may be directed or
mailed to the Director, Civil Rights Center, U.S. Department of Labor,
Room N-4123, 200 Constitution Avenue, NW., Washington, DC, 20210, for
processing. (See Sec. 641.910(d)).
(e) The specification of any right or protection against
discrimination in paragraphs (a) through (d) of this section must not be
interpreted to exclude or diminish any other right or protection against
discrimination in connection with a SCSEP project that may be available
to any participant, applicant for participation, or other individual
under any applicable Federal, State, or local laws prohibiting
discrimination, or their implementing regulations.
Sec. 641.833 What policies govern political patronage?
(a) A recipient or sub-recipient must not select, reject, promote,
or terminate an individual based on political services provided by the
individual or on the individual's political affiliations or beliefs. In
addition, as provided in Sec. 641.827(b), certain recipients and sub-
recipients of SCSEP funds are required to comply with WIA
nondiscrimination regulations in 29 CFR part 37. These regulations
prohibit discrimination on the basis of political affiliation or belief.
(b) A recipient or sub-recipient must not provide, or refuse to
provide, funds to any sub-recipient, host agency, or other entity based
on political affiliation.
(c) SCSEP recipients must ensure that every entity that receives
SCSEP funds through the recipient is applying the policies stated in
paragraphs (a) and (b) of this section.
Sec. 641.836 What policies govern political activities?
(a) No project under title V of the OAA may involve political
activities. SCSEP recipients must ensure compliance with the
requirements and prohibitions involving political activities described
in paragraphs (b) and (c) of this section.
(b) State and local employees involved in the administration of
SCSEP activities may not engage in political activities prohibited under
the Hatch Act (5 U.S.C. chapter 15), including:
(1) Seeking partisan elective office;
(2) Using official authority or influence for the purpose of
affecting elections, nominations for office, or fund-raising for
political purposes. (5 U.S.C. 1502).
(c) SCSEP recipients must provide all persons associated with SCSEP
activities with a written explanation of allowable and unallowable
political activities under the Hatch Act. A notice explaining these
allowable and unallowable political activities must be posted in every
workplace in which SCSEP activities are conducted. The Department will
provide the form and content of the notice and explanatory material by
administrative issuance. (OAA Sec. 502(b)(l)(P)).
(d) SCSEP recipients must ensure that:
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(1) No SCSEP participants or staff persons engage in partisan or
nonpartisan political activities during hours for which they are being
paid with SCSEP funds.
(2) No participants or staff persons engage in partisan political
activities in which such participants or staff persons represent
themselves as spokespersons for the SCSEP.
(3) No participants are employed or out-stationed in the offices of
a Member of Congress, a State or local legislator, or on the staff of
any legislative committee.
(4) No participants are employed or out-stationed in the immediate
offices of any elected chief executive officer of a State or unit of
general government, except that:
(i) Units of local government may serve as host agencies for
participants, provided that their assignments are non-political; and
(ii) While assignments may place participants in such offices, such
assignments actually must be concerned with program and service
activities and not in any way involved in political functions.
(5) No participants are assigned to perform political activities in
the offices of other elected officials. Placement of participants in
such offices in non-political assignments is permissible, however,
provided that:
(i) SCSEP recipients develop safeguards to ensure that participants
placed in these assignments are not involved in political activities;
and
(ii) These safeguards are described in the grant agreement and are
approved by the Department and are subject to review and monitoring by
the SCSEP recipient and by the Department.
Sec. 641.839 What policies govern union organizing activities?
Recipients must ensure that SCSEP funds are not used in any way to
assist, promote, or deter union organizing.
Sec. 641.841 What policies govern nepotism?
(a) SCSEP recipients must ensure that no recipient or sub-recipient
hires, and no host agency serves as a worksite for, a person who works
in a SCSEP community service assignment if a member of that person's
immediate family is engaged in a decision-making capacity (whether
compensated or not) for that project, subproject, recipient, sub-
recipient, or host agency. The Department may exempt worksites on Native
American reservations and in rural areas from this requirement provided
that adequate justification can be documented, such as that no other
persons are eligible and available for participation in the program.
(b) To the extent that an applicable State or local legal nepotism
requirement is more restrictive than this provision, SCSEP recipients
must ensure that the more restrictive requirement is followed.
(c) For purposes of this section, ``immediate family'' means wife,
husband, son, daughter, mother, father, brother, sister, son-in-law,
daughter-in-law, mother- in-law, father-in-law, brother-in-law, sister-
in-law, aunt, uncle, niece, nephew, stepparent, stepchild, grandparent,
or grandchild.
Sec. 641.844 What maintenance of effort requirements apply to the use
of SCSEP funds?
(a) A community service assignment for a participant under title V
of the OAA is permissible only when specific maintenance of effort
requirements are met.
(b) Each project funded under title V:
(1) Must not reduce the number of employment opportunities or
vacancies that would otherwise be available to individuals not
participating in the program;
(2) Must not displace currently employed workers (including partial
displacement, such as a reduction in the hours of non-overtime work,
wages, or employment benefits);
(3) Must not impair existing contracts or result in the substitution
of Federal funds for other funds in connection with work that would
otherwise be performed; and
(4) Must not employ or continue to employ any eligible individual to
perform the same work or substantially the same work as that performed
by any other individual who is on layoff. (OAA Sec. 502(b)(1)(G)).
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Sec. 641.847 What uniform allowable cost requirements apply to the use
of SCSEP funds?
(a) General. Unless specified otherwise in this part or the grant
agreement, recipients and sub-recipients must follow the uniform
allowable cost requirements that apply to their type of organization.
For example, a local government sub-recipient receiving SCSEP funds from
a nonprofit organization must use the allowable cost requirements for
governmental organizations in OMB Circular A-87. The Department's
regulations at 29 CFR 95.27 (non-profit and commercial organizations)
and 29 CFR 97.22 (State and local governments) identify the Federal
principles for determining allowable costs that each kind of
organization must follow. The applicable Federal principles for each
kind of organization are described in paragraphs (b)(1) through (b)(5)
of this section. (OAA Sec. 503(f)(2)).
(b) Allowable costs/cost principles. (1) Allowable costs for State,
local, and Indian tribal government organizations must be determined
under OMB Circular A-87, ``Cost Principles for State, Local and Indian
Tribal Governments.''
(2) Allowable costs for nonprofit organizations must be determined
under OMB Circular A-122, ``Cost Principles for Non-Profit
Organizations.''
(3) Allowable costs for institutions of higher education must be
determined under OMB Circular A-21, ``Cost Principles for Educational
Institutions.''
(4) Allowable costs for hospitals must be determined in accordance
with appendix E of 45 CFR part 74, ``Principles for Determining Costs
Applicable to Research and Development Under Grants and Contracts with
Hospitals.''
(5) Allowable costs for commercial organizations and those nonprofit
organizations listed in Attachment C to OMB Circular A-122 must be
determined under the provisions of the Federal Acquisition Regulation
(FAR), at 48 CFR part 31.
Sec. 641.850 Are there other specific allowable and unallowable cost
requirements for the SCSEP?
(a) Yes, in addition to the generally applicable cost principles in
Sec. 641.847(b), the cost principles in paragraphs (b) through (g) of
this section apply to SCSEP grants.
(b) Claims against the Government. For all types of entities, legal
expenses for the prosecution of claims against the Federal Government,
including appeals to an Administrative Law Judge, are unallowable.
(c) Lobbying costs. In addition to the prohibition contained in 29
CFR part 93, SCSEP funds must not be used to pay any salaries or
expenses related to any activity designed to influence legislation or
appropriations pending before the Congress of the United States or any
State legislature. (See Sec. 641.824).
(d) One-Stop costs. Costs of participating as a required partner in
the One-Stop delivery system established in accordance with Sec. 134(c)
of the WIA are allowable, provided that SCSEP services and funding are
provided in accordance with the MOU required by the WIA and OAA Sec.
502(b)(1)(O), and costs are determined in accordance with the applicable
cost principles. The costs of services provided by the SCSEP, including
those provided by participants/enrollees, may comprise a portion or the
total of a SCSEP project's proportionate share of One-Stop costs.
(e) Building repairs and acquisition costs. Except as provided in
this paragraph and as an exception to the allowable cost principles in
Sec. 641.847(b), no SCSEP funds may be used for the purchase,
construction, or renovation of any building except for the labor
involved in:
(1) Minor remodeling of a public building necessary to make it
suitable for use for project purposes;
(2) Minor repair and rehabilitation of publicly used facilities for
the general benefit of the community; and
(3) Repair and rehabilitation by participants of housing occupied by
persons with low incomes who are declared eligible for such services by
authorized local agencies.
(f) Accessibility and reasonable accommodation. Recipients and sub-
recipients may use SCSEP funds to meet their obligations under Sec. 504
of the Rehabilitation Act of 1973, as amended, and the Americans with
Disabilities Act of
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1990, as amended, and any other applicable Federal disability
nondiscrimination laws, to provide physical and programmatic
accessibility and reasonable accommodation/modifications for, and
effective communications with, individuals with disabilities. (29 U.S.C.
794).
(g) Participants' benefit costs. Recipients and sub-recipients may
use SCSEP funds for participant benefit costs only under the conditions
set forth in Sec. 641.565.
Sec. 641.853 How are costs classified?
(a) All costs must be classified as ``administrative costs'' or
``programmatic activity costs.'' (OAA Sec. 502(c)(6)).
(b) Recipients and sub-recipients must assign participants' wage and
benefit costs and other participant (enrollee) costs such as supportive
services to the programmatic activity cost category. (See Sec.
641.864). When a participant's community service assignment involves
functions whose costs are normally classified as administrative costs,
compensation provided to the participants must be charged as
programmatic activity costs instead of administrative costs, since
participant wage and benefit costs are always charged to the
programmatic activity cost category.
Sec. 641.856 What functions and activities constitute administrative
costs?
(a) Administrative costs are that allocable portion of necessary and
reasonable allowable costs of recipients and program operators that are
associated with those specific functions identified in paragraph (b) of
this section and that are not related to the direct provision of
programmatic activities specified in Sec. 641.864. These costs may be
both personnel and non-personnel and both direct and indirect costs.
(b) Administrative costs are the costs associated with:
(1) Performing general administrative and coordination functions,
including:
(i) Accounting, budgeting, financial, and cash management functions;
(ii) Procurement and purchasing functions;
(iii) Property management functions;
(iv) Personnel management functions;
(v) Payroll functions;
(vi) Coordinating the resolution of findings arising from audits,
reviews, investigations, and incident reports;
(vii) Audit functions;
(viii) General legal services functions;
(ix) Developing systems and procedures, including information
systems, required for these administrative functions;
(x) Preparing administrative reports; and
(xi) Other activities necessary for general administration of
government funds and associated programs.
(2) Oversight and monitoring responsibilities related to
administrative functions;
(3) Costs of goods and services used for administrative functions of
the program, including goods and services such as rental or purchase of
equipment, utilities, office supplies, postage, and rental and
maintenance of office space;
(4) Travel costs incurred for official business in carrying out
administrative activities or the overall management of the program;
(5) Costs of information systems related to administrative functions
(for example, personnel, procurement, purchasing, property management,
accounting, and payroll systems) including the purchase, systems
development, and operating costs of such systems and;
(6) Costs of technical assistance, professional organization
membership dues, and evaluating results obtained by the project involved
against stated objectives. (OAA Sec. 502(c)(4)).
Sec. 641.859 What other special rules govern the classification of
costs as administrative costs or programmatic activity costs?
(a) Recipients and sub-recipients must comply with the special rules
for classifying costs as administrative costs or programmatic activity
costs set forth in paragraphs (b) through (e) of this section.
(b)(1) Costs of awards by recipients and program operators that are
solely
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for the performance of their own administrative functions are classified
as administrative costs.
(2) Costs incurred by recipients and program operators for
administrative functions listed in Sec. 641.856(b) are classified as
administrative costs.
(3) Costs incurred by vendors and sub-recipients performing the
administrative functions of recipients and program operators are
classified as administrative costs. (See 29 CFR 99.210 for a discussion
of factors differentiating sub-recipients from vendors.)
(4) Except as provided in paragraph (b)(3) of this section, all
costs incurred by all vendors, and only those sub-recipients below
program operators, are classified as programmatic activity costs. (See
29 CFR 99.210 for a discussion of factors differentiating sub-recipients
from vendors.)
(c) Personnel and related non-personnel costs of staff who perform
both administrative functions specified in Sec. 641.856(b) and
programmatic services or activities must be allocated as administrative
or programmatic activity costs to the benefiting cost objectives/
categories based on documented distributions of actual time worked or
other equitable cost allocation methods.
(d) The allocable share of indirect or overhead costs charged to the
SCSEP grant are to be allocated to the administrative and programmatic
activity cost categories in the same proportion as the costs in the
overhead or indirect cost pool are classified as programmatic activity
or administrative costs.
(e) Costs of the following information systems including the
purchase, systems development and operating (e.g., data entry) costs are
charged to the programmatic activity cost category:
(1) Tracking or monitoring of participant and performance
information;
(2) Employment statistics information, including job listing
information, job skills information, and demand occupation information;
and
(3) Local area performance information.
Sec. 641.861 Must SCSEP recipients provide funding for the
administrative costs of sub-recipients?
(a) Recipients and sub-recipients must obtain funding for
administrative costs to the extent practicable from non-Federal sources.
(OAA Sec. 502(c)(5)).
(b) SCSEP recipients must ensure that sufficient funding is provided
for the administrative activities of sub-recipients that receive SCSEP
funding through the recipient. Each SCSEP recipient must describe in its
grant application the methodology used to ensure that sub-recipients
receive sufficient funding for their administrative activities. (OAA
Sec. 502(b)(1)(R)).
Sec. 641.864 What functions and activities constitute programmatic
activity costs?
Programmatic activity costs include, but are not limited to, the
costs of the following functions:
(a) Participant wages, such benefits as are required by law (such as
workers' compensation or unemployment compensation), the costs of
physical examinations, compensation for scheduled work hours during
which a host agency is closed for a Federal holiday, and necessary sick
leave that is not part of an accumulated sick leave program, except that
no amounts provided under the grant may be used to pay the cost of
pension benefits, annual leave, accumulated sick leave, or bonuses, as
described in Sec. 641.565;
(b) Outreach, recruitment and selection, intake, orientation,
assessment, and preparation and updating of IEPs;
(c) Participant training, as described in Sec. 641.540, which may
be provided before commencing or during a community service assignment,
and which may be provided at a host agency, in a classroom setting, or
using other appropriate arrangements, which may include reasonable costs
of instructors' salaries, classroom space, training supplies, materials,
equipment, and tuition;
(d) Subject to the restrictions in Sec. 641.535(c), job placement
assistance, including job development and job search assistance, job
fairs, job clubs, and job referrals; and
(e) Participant supportive services, to enable an individual to
successfully
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participate in a SCSEP project, as described in Sec. 641.545. (OAA
Sec. 502(c)(6)(A)).
Sec. 641.867 What are the limitations on the amount of SCSEP
administrative costs?
(a) Except as provided in paragraph (b), no more than 13.5 percent
of the SCSEP funds received for a Program Year may be used for
administrative costs.
(b) The Department may increase the amount available for
administrative costs to not more than 15 percent, in accordance with
Sec. 641.870. (OAA Sec. 502(c)(3)).
Sec. 641.870 Under what circumstances may the administrative cost
limitation be increased?
(a) SCSEP recipients may request that the Department increase the
amount available for administrative costs. The Department may honor the
request if:
(1) The Department determines that it is necessary to carry out the
project; and
(2) The recipient demonstrates that:
(i) Major administrative cost increases are being incurred in
necessary program components, such as liability insurance, payments for
workers' compensation for staff, costs associated with achieving
unsubsidized placement goals, and other operation requirements imposed
by the Department;
(ii) The number of community service assignment positions in the
project or the number of minority eligible individuals participating in
the project will decline if the amount available for paying the cost of
administration is not increased; or
(iii) The size of the project is so small that the amount of
administrative costs incurred to carry out the project necessarily
exceeds 13.5 percent of the grant amount. (OAA Sec. 502(c)(3)).
(b) A request by a recipient or prospective recipient for an
increase in the amount available for administrative costs may be
submitted as part of the grant application or as a separate submission
at any time after the grant award.
Sec. 641.873 What minimum expenditure levels are required for
participant wages and benefits?
(a) Except as provided in Sec. 641.874 or in paragraph (c) of this
section, not less than 75 percent of the SCSEP funds provided under a
grant from the Department must be used to pay for wages and benefits of
participants as described in Sec. 641.864(a). (OAA Sec. 502(c)(6)(B)).
(b) A SCSEP recipient is in compliance with this provision if at
least 75 percent of the total expenditure of SCSEP funds provided to the
recipient was for wages and benefits, even if one or more sub-recipients
did not expend at least 75 percent of their SCSEP sub-recipient award
for wages and benefits.
(c) A SCSEP grantee may submit to the Department a request for
approval to use not less than 65 percent of the grant funds to pay wages
and benefits under Sec. 641.874.
Sec. 641.874 What conditions apply to a SCSEP grantee request to use
additional funds for training and supportive service costs?
(a) A grantee may submit to the Department a request for approval--
(1) To use not less than 65 percent of the grant funds to pay the
wages and benefits described in Sec. 641.864(a);
(2) To use the percentage of grant funds specified in Sec. 641.867
to pay for administrative costs as described in Sec. 641.856;
(3) To use the 10 percent of grant funds that would otherwise be
devoted to wages and benefits under Sec. 641.873 to provide participant
training (as described in Sec. 641.540(e)) and participant supportive
services to enable participants to successfully participate in a SCSEP
project (as described in Sec. 641.545), in which case the grantee must
provide (from the funds described in this paragraph) the wages for those
individual participants who are receiving training from the funds
described in this paragraph, but may not use the funds described in this
paragraph to pay for any administrative costs; and
(4) To use the remaining grant funds to provide participant
training, job
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placement assistance, participant supportive services, and outreach,
recruitment and selection, intake, orientation and assessment.
(b) In submitting the request the grantee must include in the
request--
(1) A description of the activities for which the grantee will spend
the grant funds described in paragraphs (a)(3) and (a)(4) of this
section;
(2) An explanation documenting how the provision of such activities
will improve the effectiveness of the project, including an explanation
of whether any displacement of eligible individuals or elimination of
positions for such individuals will occur, information on the number of
such individuals to be displaced and of such positions to be eliminated,
and an explanation of how the activities will improve employment
outcomes for the individuals served, based on the assessment conducted
under Sec. 641.535(a)(2); and
(3) A proposed budget and work plan for the activities, including a
detailed description of how the funds will be spent on the activities
described in paragraphs (a)(3) and (a)(4) of this section.
(c)(1) If a grantee wishes to amend an existing grant agreement to
use additional funds for training and supportive service costs, the
grantee must submit such a request not later than 90 days before the
proposed date of implementation contained in the request. Not later than
30 days before the proposed date of implementation, the Department will
approve, approve as modified, or reject the request, on the basis of the
information included in the request.
(2) If a grantee submits a request to use additional funds for
training and supportive service costs in the grant application, the
request will be accepted and processed as a part of the grant review
process.
(d) Grantees may apply this provision to individual sub-recipients
but need not provide this opportunity to all their sub-recipients.
Sec. 641.876 How will compliance with cost limitations and minimum
expenditure levels be determined?
The Department will determine compliance by examining expenditures
of SCSEP funds. The cost limitations and minimum expenditure level
requirements must be met at the time all such funds have been expended
or the period of availability of such funds has expired, whichever comes
first.
Sec. 641.879 What are the financial and performance reporting
requirements for recipients?
(a) In accordance with 29 CFR 97.41 (State and local governments) or
29 CFR 95.52 (non-profit and commercial organizations), each SCSEP
recipient must submit a SCSEP Financial Status Report (FSR, ETA Form
9130) in electronic format to the Department via the Internet within 45
days after the ending of each quarter of the Program Year. Each SCSEP
recipient must also submit a final closeout FSR to the Department via
the Internet within 90 days after the end of the grant period. The
Department will provide instructions for the preparation of this report.
(OAA Sec. 503(f)(3)).
(1) Financial data must be reported on an accrual basis, and
cumulatively by funding year of appropriation. Financial data may also
be required on specific program activities as required by the
Department.
(2) If the SCSEP recipient's accounting records are not normally
kept on the accrual basis of accounting, the SCSEP recipient must
develop accrual information through an analysis of the documentation on
hand.
(b) In accordance with 29 CFR 97.40 (State and local governments) or
29 CFR 95.51 (non-profit and commercial organizations), each SCSEP
recipient must submit updated data on participants (including data on
demographic characteristics and data regarding the performance
measures), host agencies, and employers in an electronic format
specified by the Department via the Internet within 30 days after the
end of each of the first three quarters of the Program Year, on the last
day of the fourth quarter of the Program Year, and within 90 days after
the last day of the Program Year. Recipients wishing to correct data
errors or omissions for their final Program Year report must do so
within 90 days after the end of the Program Year. The Department will
generate SCSEP Quarterly
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Progress Reports (QPRs), as well as the final QPR, as soon as possible
after receipt of the data. (OAA Sec. 503(f)(3)).
(c) Each State agency receiving title V funds must annually submit
an equitable distribution report of SCSEP positions by all recipients in
the State. The Department will provide instructions for the preparation
of this report. (OAA Sec. 508).
(d) In addition to the data required to be submitted under paragraph
(b) of this section, each SCSEP recipient may be required to collect
data and submit reports on the performance measures. See subpart G. The
Department will provide instructions detailing these measures and how
recipients must prepare this report.
(e) In addition to the data required to be submitted under paragraph
(b) of this section, each SCSEP recipient may be required to collect
data and submit reports about the demographic characteristics of program
participants. The Department will provide instructions detailing these
measures and how recipients must prepare these reports.
(f) Federal agencies that receive and use SCSEP funds under
interagency agreements must submit project financial and progress
reports in accordance with this section. Federal recipients must
maintain the necessary records that support required reports according
to instructions provided by the Department. (OAA Sec. 503(f)(3)).
(g) Recipients may be required to maintain records that contain any
other information that the Department determines to be appropriate in
support of any other reports that the Department may require. (OAA Sec.
503(f)(3)).
(h) Grantees submitting reports that cannot be validated or verified
as accurately counting and reporting activities in accordance with the
reporting instructions may be treated as failing to submit reports,
which may result in failing one of the responsibility tests outlined in
Sec. 641.430 and OAA Sec. 514(d).
Sec. 641.881 What are the SCSEP recipient's responsibilities relating
to awards to sub-recipients?
(a) Recipients are responsible for ensuring that all awards to sub-
recipients are conducted in a manner to provide, to the maximum extent
practicable, full and open competition in accordance with the
procurement procedures in 29 CFR 95.43 (non-profit and commercial
organizations) and 29 CFR 97.36 (State and local governments).
(b) The SCSEP recipient is responsible for all grant activities,
including the performance of SCSEP activities by sub-recipients, and
ensuring that sub-recipients comply with the OAA and this part. (See
also OAA Sec. 514(d) and Sec. 641.430 of this part on responsibility
tests).
(c) Recipients must follow their own procedures for allocating funds
to other entities. The Department will not grant funds to another entity
on the recipient's behalf.
(d)(1) National grantees that receive grants to provide services in
an area where a substantial population of individuals with barriers to
employment exists must, in selecting sub-recipients, give special
consideration to organizations (including former national grant
recipients) with demonstrated expertise in serving such individuals.
(OAA Sec. 514(e)(2)).
(2) For purposes of this section, the term ``individuals with
barriers to employment'' means minority individuals, Indian individuals,
individuals with greatest economic need, and most-in-need individuals.
(OAA Sec. 514(e)(1)).
Sec. 641.884 What are the grant closeout procedures?
SCSEP recipients must follow the grant closeout procedures at 29 CFR
97.50 (State and local governments) or 29 CFR 95.71 (non-profit and
government organizations), as appropriate. The Department will issue
supplementary closeout instructions to OAA title V recipients as
necessary.
Subpart I_Grievance Procedures and Appeals Process
Sec. 641.900 What appeal process is available to an applicant that
does not receive a grant?
(a) An applicant for financial assistance under title V of the OAA
that is dissatisfied because it was not awarded financial assistance in
whole or in part may request that the Grant Officer
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provide an explanation for not awarding financial assistance to that
applicant. The request must be filed within 10 days of the date of
notification indicating that financial assistance would not be awarded.
The Grant Officer must provide the protesting applicant with feedback
concerning its proposal within 21 days of the protest. Applicants may
appeal to the U.S. Department of Labor, Office of Administrative Law
Judges (OALJ), within 21 days of the date of the Grant Officer's
feedback on the proposal, or within 21 days of the Grant Officer's
notification that financial assistance would not be awarded if the
applicant does not request feedback on its proposal. The appeal may be
for a part or the whole of the denied funding. This appeal will not in
any way interfere with the Department's decisions to fund other
organizations to provide services during the appeal period.
(b) Failure to file an appeal within the 21 days provided in
paragraph (a) of this section constitutes a waiver of the right to a
hearing.
(c) A request for a hearing under this section must state
specifically those issues in the Grant Officer's notification upon which
review is requested. Those provisions of the Grant Officer's
notification not specified for review are considered resolved and not
subject to further review.
(d) A request for a hearing must be transmitted by certified mail,
return receipt requested, to the Chief Administrative Law Judge, U.S.
Department of Labor, Suite 400 North, 800 K Street, NW., Washington, DC
20001, with one copy to the Departmental official who issued the
determination.
(e) The decision of the ALJ constitutes final agency action unless,
within 21 days of the decision, a party dissatisfied with the ALJ's
decision, in whole or in part, has filed a petition for review with the
Administrative Review Board (ARB) (established under Secretary's Order
No. 2-96, published at 61 FR 19978, May 3, 1996), specifically
identifying the procedure, fact, law, or policy to which exception is
taken. The mailing address for the ARB is 200 Constitution Ave., NW.,
Room N5404, Washington, DC 20210. The Department will deem any exception
not specifically urged to have been waived. A copy of the petition for
review must be sent to the grant officer at that time. If, within 30
days of the filing of the petition for review, the ARB does not notify
the parties that the case has been accepted for review, then the
decision of the ALJ constitutes final agency action. Any case accepted
by the ARB must be decided within 180 days of acceptance. If not so
decided, the decision of the ALJ constitutes final agency action.
(f) The Rules of Practice and Procedures for Administrative Hearings
Before the Office of Administrative Law Judges, at 29 CFR part 18,
govern the conduct of hearings under this section, except that:
(1) The appeal is not considered a complaint; and
(2) Technical rules of evidence, such as the Federal Rules of
Evidence and subpart B of 29 CFR part 18, will not apply to any hearing
conducted under this section. However, rules designed to assure
production of the most credible evidence available and to subject
testimony to test by cross-examination will be applied when the ALJ
conducting the hearing considers them reasonably necessary. The
certified copy of the administrative file transmitted to the ALJ by the
official issuing the notification not to award financial assistance must
be part of the evidentiary record of the case and need not be moved into
evidence.
(g) The ALJ should render a written decision no later than 90 days
after the closing of the record.
(h) The remedies available are provided in Sec. 641.470.
Sec. 641.910 What grievance procedures must grantees make available to
applicants, employees, and participants?
(a) Each grantee must establish, and describe in the grant
agreement, grievance procedures for resolving complaints, other than
those described by paragraph (d) of this section, arising between the
grantee, employees of the grantee, sub-recipients, and applicants or
participants.
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(b) The Department will not review final determinations made under
paragraph (a) of this section, except to determine whether the grantee's
grievance procedures were followed, and according to paragraph (c) of
this section.
(c) Allegations of violations of Federal law, other than those
described in paragraph (d) of this section, which are not resolved
within 60 days under the grantee's procedures, may be filed with the
Chief, Division of Adult Services, Employment and Training
Administration, U.S. Department of Labor, 200 Constitution Avenue, NW.,
Washington, DC 20210. Allegations determined to be substantial and
credible will be investigated and addressed.
(d) Questions about, or complaints alleging a violation of, the
nondiscrimination requirements of title VI of the Civil Rights Act of
1964, Sec. 504 of the Rehabilitation Act of 1973, Sec. 188 of the
Workforce Investment Act of 1998 (WIA), or their implementing
regulations, may be directed or mailed to the Director, Civil Rights
Center, U.S. Department of Labor, Room N-4123, 200 Constitution Avenue,
NW., Washington, DC 20210. In the alternative, complaints alleging
violations of WIA Sec. 188 may be filed initially at the grantee level.
See 29 CFR 37.71, 37.76. In such cases, the grantee must use complaint
processing procedures meeting the requirements of 29 CFR 37.70 through
37.80 to resolve the complaint.
Sec. 641.920 What actions of the Department may a grantee appeal and
what procedures apply to those appeals?
(a) Appeals from a final disallowance of costs as a result of an
audit must be made under 29 CFR 96.63.
(b) Appeals of suspension or termination actions taken on the
grounds of discrimination are processed under 29 CFR 31 or 29 CFR 37, as
appropriate.
(c) Protests and appeals of decisions not to award a grant, in whole
or in part, will be handled under Sec. 641.900.
(d) Upon a grantee's receipt of the Department's final determination
relating to costs (except final disallowance of costs as a result of an
audit, as described in paragraph (a) of this section), payment,
suspension or termination, or the imposition of sanctions, the grantee
may appeal the final determination to the Department's Office of
Administrative Law Judges, as follows:
(1) Within 21 days of receipt of the Department's final
determination, the grantee may transmit by certified mail, return
receipt requested, a request for a hearing to the Chief Administrative
Law Judge, United States Department of Labor, Suite 400 North, 800 K
Street, NW., Washington, DC 20001 with a copy to the Department official
who signed the final determination.
(2) The request for hearing must be accompanied by a copy of the
final determination, and must state specifically those issues of the
determination upon which review is requested. Those provisions of the
determination not specified for review, or the entire determination when
no hearing has been requested within the 21 days, are considered
resolved and not subject to further review.
(3) The Rules of Practice and Procedures for Administrative Hearings
Before the Office of Administrative Law Judges, at 29 CFR part 18,
govern the conduct of hearings under this section, except that:
(i) The appeal is not considered as a complaint; and
(ii) Technical rules of evidence, such as the Federal Rules of
Evidence and subpart B of 29 CFR part 18, will not apply to any hearing
conducted under this section. However, rules designed to assure
production of the most credible evidence available and to subject
testimony to test by cross-examination will be applied when the
Administrative Law Judge conducting the hearing considers them
reasonably necessary. The certified copy of the administrative file
transmitted to the Administrative Law Judge by the official issuing the
final determination must be part of the evidentiary record of the case
and need not be moved into evidence.
(4) The Administrative Law Judge should render a written decision no
later than 90 days after the closing of the record. In ordering relief,
the ALJ may exercise the full authority of the Secretary under the OAA.
(5) The decision of the ALJ constitutes final agency action unless,
within 21 days of the decision, a party dissatisfied with the ALJ's
decision, in
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whole or in part, has filed a petition for review with the ARB
(established under Secretary's Order No. 2-96), specifically identifying
the procedure, fact, law, or policy to which exception is taken. The
mailing address for the ARB is 200 Constitution Ave., NW., Room N5404,
Washington, DC 20210. The Department will deem any exception not
specifically argued to have been waived. A copy of the petition for
review must be sent to the grant officer at that time. If, within 30
days of the filing of the petition for review, the ARB does not notify
the parties that the case has been accepted for review, then the
decision of the ALJ constitutes final agency action. Any case accepted
by the ARB must be decided within 180 days of acceptance. If not so
decided, the decision of the ALJ constitutes final agency action.
Sec. 641.930 Is there an alternative dispute resolution process that
may be used in place of an OALJ hearing?
(a) Parties to a complaint that has been filed according to the
requirements of Sec. 641.920 (a), (c), and (d) may choose to waive
their rights to an administrative hearing before the OALJ. Instead, they
may choose to transfer the settlement of their dispute to an individual
acceptable to all parties who will conduct an informal review of the
stipulated facts and render a decision in accordance with applicable
law. A written decision must be issued within 60 days after submission
of the matter for informal review.
(b) Unless the parties agree in writing to extend the period, the
waiver of the right to request a hearing before the OALJ will
automatically be revoked if a settlement has not been reached or a
decision has not been issued within the 60 days provided in paragraph
(a) of this section.
(c) The decision rendered under this informal review process will be
treated as the final agency decision.
PART 645_PROVISIONS GOVERNING WELFARE-TO-WORK GRANTS
Subpart A_Scope and Purpose
Sec.
645.100 What does this part cover?
645.110 What are the purposes of the Welfare-to-Work program?
645.120 What definitions apply to this part?
645.125 What are the roles of the local and State governmental partners
in the governance of the WtW program?
645.130 What are the effective dates for the Welfare-to-Work 1999
Amendments?
645.135 What is the effective date for spending Federal Welfare-to-Work
formula funds on newly eligible participants and newly
authorized services?
Subpart B_General Program and Administrative Requirements
645.200 What does this subpart cover?
645.210 What is meant by the terms ``entity'' and ``project'' in the
statutory phrase ``an entity that operates a project'' with
Welfare-to-Work funds?
645.211 How must Welfare-to-Work funds be spent by the operating entity?
645.212 Who may be served under the general eligibility and noncustodial
parent eligibility (primary eligibility) provision?
645.213 Who may be served as an individual in the ``other eligibles''
(30 percent) provision?
645.214 How will Welfare-to-Work participant eligibility be determined?
645.215 What must a WtW operating entity that serves noncustodial parent
participants do?
645.220 What activities are allowable under this part?
645.221 For what activities and services must local boards use contracts
and vouchers?
645.225 How do Welfare-to-Work activities relate to activities provided
under TANF and other related programs?
645.230 What general fiscal and administrative rules apply to the use of
Federal funds?
645.233 What are the time limitations on the expenditure of Welfare-to-
Work grant funds?
645.235 What types of activities are subject to the administrative cost
limit on Welfare-to-Work grants?
645.240 What are the reporting requirements for Welfare-to-Work
programs?
645.245 Who is responsible for oversight and monitoring of Welfare-to-
Work grants?
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645.250 What procedures apply to the resolution of findings arising from
audits, investigations, monitoring, and oversight reviews?
645.255 What nondiscrimination protections apply to participants in
Welfare-to-Work programs?
645.260 What health and safety provisions apply to participants in
Welfare-to-Work programs?
645.265 What safeguards are there to ensure that participants in
Welfare-to-Work employment activities do not displace other
employees?
645.270 What procedures are there to ensure that currently employed
workers may file grievances regarding displacement and that
Welfare-to-Work participants in employment activities may file
grievances regarding displacement, health and safety standards
and gender discrimination?
Subpart C_Additional Formula Grant Administrative Requirements and
Procedures
645.300 What constitutes an allowable match?
645.310 What assurances must a State provide that it will make the
required matching expenditures?
645.315 What actions are to be taken if a State fails to make the
required matching expenditures?
Subpart D_State Formula Grant Administration
645.400 Under what conditions may the Governor request a waiver to
designate an alternate local administering agency?
645.410 What elements will the State use in distributing funds within
the State?
645.415 What planning information must a State submit in order to
receive a formula grant?
645.420 What factors will be used in measuring State performance?
645.425 What are the roles and responsibilities of the State(s) and
local boards or alternate administering agencies?
645.430 How does the Welfare-to-Work program relate to the One-Stop
system and Workforce Investment Act (WIA) programs?
Subpart E_Welfare-to-Work Competitive Grants
645.500 Who are eligible applicants for competitive grant funds?
645.510 What is the required consultation with the Governor?
645.515 What are the program and administrative requirements that apply
to both the formula grants and competitive grants?
645.520 What are the application procedures and timeframes for
competitive grant funds?
645.525 What special consideration will be given to rural areas and
cities with large concentrations of poverty?
Subpart F_Administrative Appeal Process
645.800 What administrative remedies are available under this Part?
Authority: 42 U.S.C. 603 (a)(5)(C)(viii).
Source: 66 FR 2711, Jan. 11, 2001, unless otherwise noted.
Subpart A_Scope and Purpose
Sec. 645.100 What does this part cover?
(a) Subpart A establishes regulatory provisions that apply to the
Welfare-to-Work (WtW) programs conducted at the State and at the local
area levels.
(b) Subpart B provides general program requirements applicable to
all WtW formula and competitive funds. The provisions of this subpart
govern how WtW funds must be spent, who is eligible to participate in
the program, allowable activities and their relationship to TANF,
Governor's projects for long-term recipients, administrative and fiscal
provisions, and program oversight requirements. This subpart also
addresses worker protections and the establishment of a State grievance
system.
(c) Subpart C sets forth additional administrative standards and
procedures for WtW Formula Grants, such as matching requirements and
reallotment procedures.
(d) Subpart D sets forth the conditions under which the Governor may
request a waiver to designate an alternate administering agency, sets
forth the formula elements that must be included in the within-State
distribution formula, the submission of a State annual plan, the factors
for measuring State performance, and the roles and responsibilities of
the States and the local boards or alternate administering agencies.
(e) Subpart E outlines general conditions and requirements for the
WtW Competitive Grants.
(f) Subpart F sets forth the administrative appeals process.
[[Page 238]]
(g) Regulatory provisions applicable to the Indian and Native
American Welfare-to-Work Program (INA WtW) are found at 20 CFR part 646.
Sec. 645.110 What are the purposes of the Welfare-to-Work Program?
The purposes of the WtW program are:
(a) To facilitate the placement of hard-to-employ welfare recipients
and certain noncustodial parents into transitional employment
opportunities which will lead to lasting unsubsidized employment and
self-sufficiency;
(b) To provide a variety of activities, grounded in TANF's ``work
first'' philosophy, to prepare individuals for, and to place them in,
lasting unsubsidized employment;
(c) To provide for a variety of post-employment and job retention
services which will assist the hard-to-employ welfare recipient and
certain noncustodial parents to secure lasting unsubsidized employment;
(d) To provide targeted WtW funds to high poverty areas with large
numbers of hard-to-employ welfare recipients.
Sec. 645.120 What definitions apply to this part?
The following definitions apply under this part:
Act means Title IV, Part A of the Social Security Act, 42 U.S.C.
601-619.
Adult means an individual who is not a minor child.
Chief Elected Official(s) (CEOs) means:
(1) The chief elected official of the sole unit of general local
government in the service delivery area,
(2) The individual or individuals selected by the chief elected
officials of all units of general local government in such area as their
authorized representative, or
(3) In the case of a service delivery area designated under section
101(a)(4)(A)(iii) of JTPA, the representative of the chief elected
official for such area (as defined in section 4(4)(C) of JTPA) or as
defined in section 101 of the Workforce Investment Act of 1988.
Competitive grants means those grants in which WtW funds have been
awarded by the Department under a competitive application process to
local governments, PICs, and private entities (such as community
development corporations, community-based and faith-based organizations,
disability community organizations, and community action agencies) who
apply in conjunction with a PIC or local government.
Department or DOL means the U.S. Department of Labor.
Employment activities means the activities enumerated at Sec.
645.220(b).
ETA means the Employment and Training Administration of the U.S.
Department of Labor.
Fiscal year (FY) means any 12-month period ending on September 30 of
a calendar year.
Formula grants means those grants in which WtW funds have been
allotted to each Welfare-to-Work State, based on a formula prescribed by
the Act, which equally considers States' shares of the national number
of poor individuals and of adult recipients of assistance under TANF.
The State is required to distribute not less than 85 percent of the
allotted formula grant funds to service delivery areas in the State; and
the State may retain not more than 15 percent for projects to help long-
term recipients of assistance enter unsubsidized employment. Unless
otherwise specified, the term ``formula grant'' refers to the 85 percent
and 15 percent funds.
Governor means the Chief Executive Officer of a State.
IV-D Agency (Child Support Enforcement) means the organizational
unit in the State that has the responsibility for administering or
supervising the administration of the State plan under title IV-D of the
Act (SSA).
Job Training Partnership Act or JTPA means Public Law (Pub. L.) 97-
300, as amended, 29 U.S.C. 1501, et seq.
Local area means a local workforce investment area designated under
section 116 of the Workforce investment Act of 1998, or a service
delivery area designated under section 101 of the Job Training
partnership Act, as appropriate.
Local workforce investment board (local board) means a local board
established under section 117 of the Workforce Investment Act, or a
Private Industry Council established under section 102 of the Job
Training Partnership Act (JTPA), which performs the functions
[[Page 239]]
authorized at section 103 of the JTPA, or an alternate administering
agency designated under section 405(a)(5)(A)(vii)(II) of the Act and
Sec. 645.400 of this part.
Minor child means an individual who has not attained 18 years of
age, or has not attained 19 years of age and is a full-time student in a
secondary school (or in the equivalent level of vocational or technical
training).
MOE means maintenance of effort. Under TANF, States are required to
maintain a certain level of spending on welfare based on ``historic'' FY
1994 expenditure levels (Section 409(a)(7) of the Act).
PIC means a Private Industry Council established under Section 102
of the Job Training Partnership Act, which performs the functions
authorized at Section 103 of the JTPA.
Political subdivision of a State means a unit of general purpose
local government, as provided for in State laws and/or Constitution,
which has the power to levy taxes and spend funds and which also has
general corporate and police powers.
Private entity means any organization, public or private, which is
not a local board, PIC or alternate administering agency or a political
subdivision of a State.
PRWORA means the Personal Responsibility and Work Opportunity
Reconciliation Act of 1996, Public Law (Pub. L.) 104-193, which
established the TANF program.
SDA means a service delivery area designated under section 101 of
the Job Training Partnership Act or a local area designated under
section 116 of the Workforce Investment Act of 1998, as appropriate.
Secretary means the Secretary of Labor.
Separate State program means a program operated outside of TANF in
which the expenditures of State funds may count for TANF MOE purposes.
State means the 50 States of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, the US Virgin Islands, Guam,
and American Samoa, unless otherwise specified.
State TANF Program means those funds expended under the State Family
Assistance Grant (SFAG), the basic block grant allocated to the States
under Section 403(a)(1) of the Act.
TANF means Temporary Assistance for Needy Families Program
established under PRWORA.
TANF MOE means the expenditure of State funds that must be made in
order to meet the Temporary Assistance for Needy Families Maintenance of
Effort requirement.
Unemployed means the individual is without a job and wants and is
available for work.
WIA means the Workforce Investment Act of 1998 (Pub. L. 105-220)(29
U.S.C. 2801 et seq.).
WtW means Welfare-to-Work.
WtW State means those States that the Secretary of Labor determines
have met the five conditions established at Section 403(a)(5)(A)(ii) of
the Act. Only States that are determined to be WtW States can receive
WtW grant funds.
WtW statute means those provisions of the Balanced Budget Act of
1997 containing certain amendments to PRWORA and establishing the new
Welfare-to-Work program, amending Title IV of the Social Security Act,
(codified at 42 U.S.C. 601-619).
Sec. 645.125 What are the roles of the local and State governmental
partners in the governance of the WtW program?
(a) Local boards or alternate administering agencies, in
coordination with CEO's should establish policies, interpretations,
guidelines and definitions to implement provisions of the WtW statute to
the extent that such policies, interpretations, guidelines and
definitions are not inconsistent with the WtW statute or regulations or
with State policies.
(b) States should establish policies, interpretations, guidelines
and definitions to implement provisions of the WtW statute to the extent
that such policies, interpretations, guidelines and definitions are not
inconsistent with the WtW statute or regulations.
(c) The Secretary, in consultation with other Federal Agencies, as
appropriate, may publish guidance on interpretations of statutory and
regulatory
[[Page 240]]
provisions. State and local policies, interpretations, guidelines and
definitions that are consistent with interpretations contained in such
guidance will be considered to be consistent with the WtW statute for
purposes of this section.
Sec. 645.130 What are the effective dates for the Welfare-to-Work 1999
Amendments?
The legislative changes made by the 1999 amendments:
(a) Are effective on November 29, 1999, except as provided in
paragraphs (b) and (c) of this section;
(b) Provisions relating to the eligibility of participants for WtW
competitive grants are effective on January 1, 2000;
(c)(1) Provisions relating to the eligibility of participants for
WtW formula grants are effective on July 1, 2000, except that
expenditures from allotments to the States, as discussed in Sec.
645.135 of this subpart, must not have been made before October 1, 2000,
for individuals who would not have been eligible under the criteria in
effect before the changes made by the 1999 Amendments;
(2) Provisions authorizing pre-placement vocational educational
training and job training for WtW formula grants, at Sec. 645.220(b) of
this part, are effective on July 1, 2000, except that expenditures from
allotments to the States, as discussed in Sec. 645.135 of this subpart,
must not have been made before October 1, 2000.
Sec. 645.135 What is the effective date for spending Federal Welfare-
to-Work formula funds on newly eligible participants and newly
authorized services?
States and local areas may expend matching funds beginning July 1,
2000. States and local areas may incur unpaid obligations within the
normal course of business, beginning July 1, 2000, provided that the
timing of those transactions ensures that drawdown of federal Welfare-
to-Work formula funds to liquidate the obligations did not occur until
October 1, 2000.
Subpart B_General Program and Administrative Requirements
Sec. 645.200 What does this subpart cover?
This subpart provides general program and administrative
requirements for WtW formula funds, including Governors' funds for long-
term recipients of assistance, and for competitive grant funding
(section 403(a)(5)).
Sec. 645.210 What is meant by the terms ``entity'' and ``project'' in
the statutory phrase ``an entity that operates a project''
with Welfare-to-Work funds?
The terms ``entity'' and ``project'', in the statutory phrase ``an
entity that operates a project'', means:
(a) For WtW substate formula funds:
(1) ``Entity'' means the PIC, local board (or the alternate
administering agency designated by the Governor and approved by the
Secretary pursuant to Sec. 645.400 of this part) which administers the
WtW substate formula funds in a local area(s). This entity is referred
to in Sec. Sec. 645.211 through 645.225 of this part as the ``operating
entity.''
(2) ``Project'' means all activities, administrative and
programmatic, supported by the total amount of the WtW substate formula
funds allotted to the entity described in section (a)(1) of this
paragraph.
(b) For WtW Governors' funds for long-term recipients of assistance:
(1) ``Entity'' means the agency, group, or organization to which the
Governor has distributed any of the funds for long-term recipients of
assistance, as described in Sec. 645.410 (b) and (c) of this part. This
entity is referred to in Sec. Sec. 645.211 through 645.225 of this part
as the ``operating entity.''
(2) ``Project'' means all activities, administrative and
programmatic, supported by the total amount of one discrete award of WtW
Governors' funds for long-term recipients of assistance awarded to the
entity described in section (b)(1) of this paragraph.
(c) For competitive WtW funds:
(1) ``Entity'' means an eligible applicant, as described in Sec.
645.500 of this part, which is awarded a competitive WtW grant. This
entity is referred to in
[[Page 241]]
Sec. Sec. 645.211 through 645.225 of this part as the ``operating
entity.''
(2) ``Project'' means all of the activities, administrative and
programmatic, supported by the total amount of one discrete WtW
competitive grant awarded to the entity described in section (c)(1) of
this paragraph (section 403(a)(5)(C)).
Sec. 645.211 How must Welfare-to-Work funds be spent by the operating
entity?
An operating entity, as described in Sec. 645.210 of this subpart,
may spend not more than 30 percent of the WtW funds allotted to or
awarded to the operating entity to assist individuals who meet the
``other eligibles'' eligibility requirements under Sec. 645.213 of this
subpart. The remaining funds allotted to or awarded to the operating
entity are to be spent to benefit individuals who meet the ``general
eligibility'' and/or ``noncustodial parents'' eligibility requirements,
under Sec. 645.212 of this subpart. (section 403(a)(5)(C) of the Act).
Sec. 645.212 Who may be served under the general eligibility and
noncustodial parent eligibility (primary eligibility)
provision?
An individual may be served under this provision if:
(a)(1) (S)he is currently receiving TANF assistance under a State
TANF program, and/or its predecessor program, for at least 30 months,
although the months do not have to be consecutive; or
(2) (S)he will become ineligible for assistance within 12 months due
to either Federal or State-imposed time limits on the receipt of TANF
assistance. This criterion includes individuals (as well as children of
noncustodial parents) exempted from the time limits due to hardship
under section 408(a)(7)(C) of the Act or due to a waiver because of
domestic violence under section 402(a)(7) of the Act, who would become
ineligible for assistance within 12 months without the exemption or
waiver;
(b) (S)he is no longer receiving TANF assistance because (s)he has
reached either the Federal five-year limit or a State-imposed time limit
on receipt of TANF assistance (section 403(a)(5)(C) of the Act); or
(c) (S)he is a noncustodial parent of a minor child if:
(1) The noncustodial parent is:
(i) ``Unemployed,'' as defined in Sec. 645.120 of this part,
(ii) ``Underemployed,'' as defined by the State in consultation with
local boards and WtW competitive grantees, or
(iii) ``Having difficulty paying child support obligations,'' as
defined by the State in consultation with local boards and WtW
competitive grantees and the State Child Support Enforcement (IV-D)
Agency, and
(2) At least one of the following applies:
(i) The minor child, or the custodial parent of the minor child,
meets the long-term recipient of TANF requirements of paragraph (a) of
this section;
(ii) The minor child is receiving or is eligible for TANF benefits
and services;
(iii) The minor child received TANF benefits and services during the
preceding year; or
(iv) The minor child is receiving or eligible for assistance under
the Food Stamp program, the Supplemental Security Income program,
Medicaid, or the Children's Health Insurance Program; and
(3) The noncustodial parent is in compliance with the terms of a
written or oral personal responsibility contract meeting the
requirements of Sec. 645.215 of this subpart.
(d) For purposes of determining whether an individual is receiving
TANF assistance in paragraphs (a)(1) of this section and Sec.
645.213(a), TANF assistance means any TANF benefits and services for the
financially needy according to the appropriate income and resource
criteria (if applicable) specified in the State TANF plan.
Sec. 645.213 Who may be served as an individual in the ``other
eligibles'' (30 percent) provision?
Any individual may be served under this provision if (s)he:
(a) Is currently receiving TANF assistance (as described in Sec.
645.212(d)) and either:
(1) Has characteristics associated with, or predictive of, long-term
welfare dependence, such as having
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dropped out of school, teenage pregnancy, or having a poor work history.
States, in consultation with the operating entity, may designate
additional characteristics associated with, or predictive, of long term-
welfare dependence; or
(2) Has significant barriers to self-sufficiency, under criteria
established by the local board or alternate administering agency.
(b) Was in foster care under the responsibility of the State before
s(he) attained 18 years of age and is at least 18 but not 25 years of
age or older at the time of application for WtW. Eligible individuals
include those who were recipients of foster care maintenance payments as
defined in section 475(4) under part E of the Social Security Act, or
(c)(1) Is a custodial parent with income below 100 percent of the
poverty line, determined in accordance with the most recent HHS Poverty
Guidelines established under section 673(2) of the Omnibus Budget
Reconciliation Act of 1981 (Pub. L. 97-35), including any revisions
required by such section, applicable to a family of the size involved.
(2) For purposes of paragraph (c)(1) of this section, income is
defined as total family income for the last six months, exclusive of
unemployment compensation, child support payments, and old-age and
survivors benefits received under section 202 of the Social Security Act
(42 U.S.C. 402).
(3) A custodial parent with a disability whose own income meets the
requirements of a program described in paragraph (c)(1) or (c)(3)(i) but
who is a member of a family whose income does not meet such requirements
is considered to have met the requirements of paragraph (c)(1) of this
section.
Sec. 645.214 How will Welfare-to-Work participant eligibility be
determined?
(a) The operating entity, as described in Sec. 645.210(a)(1),
(b)(1), and (c)(1) of this subpart, is accountable for ensuring that WtW
funds are spent only on individuals eligible for WtW projects.
(b) The operating entity must ensure that there are mechanisms in
place to determine WtW eligibility for individuals who are receiving
TANF assistance. These mechanisms:
(1) Must include arrangements with the TANF agency to ensure that a
WtW eligibility determination is based on information, current at the
time of the WtW eligibility determination, about whether an individual
is receiving TANF assistance, the length of receipt of TANF assistance,
and when an individual may become ineligible for assistance, pursuant to
Sec. Sec. 645.212 and 645.213 of this part (section
403(a)(5)(I)(A)(ii)(dd)).
(2) May include a determination of WtW eligibility for
characteristics of long-term welfare dependence and for significant
barriers to self-sufficiency under Sec. 645.213(a) of this subpart,
based on information collected by the operating entity and/or the TANF
agency up to six months prior to the WtW eligibility determination.
(c) The operating entity must ensure that there are mechanisms in
place to determine WtW eligibility for individuals who have reached the
time limit on receipt of TANF, under Sec. 645.212(b) of this subpart;
individuals who are not receiving TANF assistance (i.e., noncustodial
parents under Sec. 645.212(c) of this subpart; individuals who are
former foster care recipients under Sec. 645.213(b) of this subpart,
and low-income custodial parents under Sec. 645.213(c) of this
subpart). The mechanisms for establishing noncustodial parent
eligibility must include a process for applying the preference required
under Sec. 645.215(a) of this subpart, and may include an objective
standard to be used as a presumptive determination for establishing the
eligibility of the minor child for the programs specified in Sec.
645.212(c)(2)(iv) of this subpart.
Sec. 645.215 What must a WtW operating entity that serves noncustodial
parent participants do?
(a) In programs that serve noncustodial parents, the operating
entity must give preference to those noncustodial parents who qualify
under Sec. 645.212(c)(2)(i) of this subpart over other noncustodial
parents. The preference for admission into the program applies only to
noncustodial parents and not to any other group eligible
[[Page 243]]
under the ``general eligibility'' provisions of Sec. 645.212(a) or (b)
or the ``other eligibles'' provisions of Sec. 645.213. The preference
does not require that the category of noncustodial parents eligible
under Sec. 645.212(c)(2)(i) must be exhausted before any other category
of eligible noncustodial parents may be served. The operating entity may
establish a process that gives preference to noncustodial parents
eligible under Sec. 645.212(c)(2)(i) and that also provides WtW
services to noncustodial parents eligible under the other provisions of
Sec. 645.212(c)(2).
(b) In order to protect custodial parents and children who may be at
risk of domestic violence, the operating entity must consult with
domestic violence prevention and intervention organizations in the
development of its WtW project serving noncustodial parents; and must
not require the cooperation of the custodial parent as a condition of
participation in the WtW program for either parent; and
(c) The operating entity must ensure that personal responsibility
contracts:
(1) Take into account the employment and child support status of the
noncustodial parent;
(2) Include all of the following parties:
(i) The noncustodial parent,
(ii) The operating entity, and
(iii) The agency responsible for administering the State Child
Support Enforcement program as described under Title IV-D of the Act,
unless the operating entity demonstrates to the Secretary of Labor with
written documentation that it is not able to coordinate with the State
IV-D agency;
(3) Include the following elements:
(i) A commitment by the noncustodial parent to cooperate:
(A) In the establishment of paternity (if the participant is male)
of the minor child at the earliest opportunity, through voluntary
acknowledgment or other procedures, and
(B) In the establishment of a child support order;
(ii) A commitment by the noncustodial parent to cooperate in the
payment of child support for the minor child. This commitment may
include a modification of an existing support order to take into
account:
(A) The ability of the noncustodial parent to pay such support; and
(B) The participation of the noncustodial parent in the WtW program,
and
(iii) A commitment by the noncustodial parent to participate in
employment or related activities that will enable the noncustodial
parent to make regular child support payments. For noncustodial parents
who have not reached 20 years of age, such activities may include:
(A) Completion of high school,
(B) Earning a general equivalency degree, or
(C) Participating in other education directly related to employment;
(iv) A description of the services to be provided to the
noncustodial parent under the WtW program;
(4) Contain a commitment by the noncustodial parent to participate
in the services that are described in the personal responsibility
contract under paragraph (c)(3)(iv) of this section; and
(5) Be entered into no later than thirty (30) days after the
individual is enrolled in and is receiving services through a WtW
project funded under this part, unless the operating entity has
determined that good cause exists to extend this period. This extension
may not extend to a date more than ninety (90) days after the individual
is enrolled in and receiving services through a WtW project funded under
this part.
Sec. 645.220 What activities are allowable under this part?
Entities operating WtW projects may use WtW funds for the following:
(a) Job readiness activities, subject to the requirements of Sec.
645.221 of this subpart.
(b) Vocational educational training or job training. A participant
is limited to six calendar months of such training if (s)he is not also
employed or participating in an employment activity, as described in
paragraph (c) of this section.
(c) Employment activities which consist of any of the following:
(1) Community service programs;
(2) Work experience programs;
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(3) Job creation through public or private sector employment wage
subsidies; and
(4) On-the-job training.
(d) Job placement services subject to the requirements of Sec.
645.221 of this subpart.
(e) Post-employment services which are provided after an individual
is placed in one of the employment activities listed in paragraph (c) of
this section, or in any other subsidized or unsubsidized job, subject to
the requirements of Sec. 645.221 of this subpart. Post-employment
services include such services as:
(1) Basic educational skills training;
(2) Occupational skills training;
(3) English as a second language training; and
(4) Mentoring.
(f) Job retention services and support services that are provided
after an individual is placed in a job readiness activity, as specified
in paragraph (a) of this section; in vocational education or job
training, as specified in paragraph (b) of this section; in one of the
employment activities, as specified in paragraph (c) of this section, or
in any other subsidized or unsubsidized job. WtW participants who are
enrolled in Workforce Investment Act (WIA) or JTPA activities, such as
occupational skills training, may also receive job retention and support
services funded with WtW monies while they are participating in WIA
activities. Job retention and support services can be provided with WtW
funds only if they are not otherwise available to the participant. Job
retention and support services include such services as:
(1) Transportation assistance;
(2) Substance abuse treatment (except that WtW funds may not be used
to provide medical treatment);
(3) Child care assistance;
(4) Emergency or short term housing assistance; and
(5) Other supportive services.
(g) Individual development accounts which are established in
accordance with the Act.
(h) Outreach, recruitment, intake, assessment, eligibility
determination, development of an individualized service strategy, and
case management may be incorporated in the design of any of the
allowable activities listed in paragraphs (a) through (g) of this
section (section 403(a)(5)(C) of the Act).
Sec. 645.221 For what activities and services must local boards use
contracts or vouchers?
(a) Local boards and PIC's must provide the following activities and
services through vouchers or contracts with public or private providers:
the job readiness activities described in Sec. 645.220(a) of this
subpart, the job placement services described in Sec. 645.220(d) of
this subpart, and the post-employment services described in Sec.
645.220(e) of this subpart. Job placement services provided with
contracts or vouchers are subject to the payment requirements at Sec.
645.230(a)(3) of this subpart. If an operating entity is not a local
board or a PIC, it may provide such services directly.
(b) Local boards and PIC's which are directly providing job
readiness activities or job placement and/or post-employment services
must conform to the requirement in paragraph (a) of this section, to
provide such services through contract or voucher, by February 12, 2001.
Sec. 645.225 How do Welfare-to-Work activities relate to activities
provided through TANF and other related programs?
(a) Activities provided through WtW must be coordinated effectively
at the State and local levels with activities being provided through
TANF (section 403(a)(5)(A)(vii)(II)).
(b) The operating entity must ensure that there is an assessment of
skills, prior work experience, employability, and other relevant
information in place for each WtW participant. Where appropriate, the
assessment performed by the TANF agency or JTPA should be used for this
purpose.
(c) The operating entity must ensure that there is an individualized
strategy for transition to unsubsidized employment in place for each
participant which takes into account participant assessments, including
the TANF assessment and any JTPA assessment. Where appropriate, the TANF
individual responsibility plan (IRP), a WIA individual employment plan,
or a
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JTPA individual service strategy should be used for this purpose.
(d) Coordination of resources should include not only those
available through WtW and TANF grant funds, and the Child Care and
Development Block Grant, but also those available through other related
activities and programs such as the WIA or JTPA programs (One-Stop
systems), the State employment service, private sector employers, labor
organizations, business and trade associations, education agencies,
housing agencies, community development corporations, transportation
agencies, community-based and faith-based organizations, disability
community organizations, community action agencies, and colleges and
universities which provide some of the assistance needed by the targeted
population (section 402(a)(5)(A)).
Sec. 645.230 What general fiscal and administrative rules apply to the
use of Federal funds?
(a) Uniform fiscal and administrative requirements. (1) State,
local, and Indian tribal government organizations are required to follow
the common rule ``Uniform Administrative Requirements for Grants and
Cooperative Agreements to State and Local Governments'' which is
codified in the DOL regulations at 29 CFR part 97.
(2) Institutions of higher education, hospitals, and other non-
profit organizations and other commercial organizations are required to
follow OMB Circular A-110 which is codified in the DOL regulations at 29
CFR part 95.
(3) In addition to the requirements at 29 CFR 95.48 and 29 CFR
97.36(i), contracts or vouchers for job placement services supported by
funds provided for this program must include a provision to require that
at least one-half (\1/2\) of the payment occur after an eligible
individual placed into the workforce has been in the workforce for six
(6) months. This provision applies only to placement in unsubsidized
jobs (section 403(a)(5)(C)(i)).
(4) In addition to the requirements at 29 CFR 95.42 and 29 CFR
97.36(b)(3) which address codes of conduct and conflict of interest
issues related to employees, it is also required that:
(i) A local board or alternate administering agency member shall
neither cast a vote on, nor participate in, any decision making capacity
on the provision of services by such member (or any organization which
that member directly represents), nor on any matter which would provide
any direct financial benefit to that member or a member of his immediate
family; and
(ii) Neither membership on the local board or alternate
administering agency nor the receipt of WtW funds to provide training
and related services shall be construed, by itself, to violate these
conflict of interest provisions.
(5) The addition method, described at 29 CFR 97.25(g)(2), is
required for the use of all program income earned under WtW grants. When
the cost of generating program income has been charged to the program,
the gross amount earned must be added to the WtW program. However, the
cost of generating program income must be subtracted from the amount
earned to establish the net amount of program income available for use
under the grants when these costs have not been charged to the WtW
program.
(6) Any excess revenue over costs incurred for services provided by
a governmental or non-profit entity must be included in program income
earned.
(b) Audit requirements. All recipients and subrecipients of
Department of Labor WtW awards must comply with the audit requirements
codified at 29 CFR part 96.
(1) All governmental and non-profit organizations must follow the
audit requirements of OMB Circular A-133 which is codified at 29 CFR
part 99. This requirement is imposed at 29 CFR 97.26 for governmental
organizations and at 29 CFR 95.26 for institutions of higher education,
hospitals, and other non-profit organizations.
(2) The Department is responsible for audits of commercial
organizations which are direct recipients of WtW grants.
(3) Commercial organizations which are WtW subrecipients and which
expend more than the minimum level specified in OMB Circular A-133
($300,000 as of April 15, 1999) must have either an organization-wide
audit conducted in accordance with 29 CFR part
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99 or a program specific financial and compliance audit.
(c) Allowable costs/cost principles. The DOL regulations at 29 CFR
95.27 and 29 CFR 97.22 identify the Federal principles for determining
allowable costs which each kind of recipient and subrecipient must
follow. For those selected items of cost requiring prior approval, the
authority to grant or deny approval is delegated to the Governor.
(1) State, local, and Indian tribal government organizations must
determine allowability of costs in accordance with the provisions of OMB
Circular A-87, ``Cost Principles for State and Local Governments.''
(2) Non-profit organizations must determine allowability of costs in
accordance with OMB Circular A-122, ``Cost Principles for Non-Profit
Organizations.''
(3) Institutions of higher education must determine allowability of
costs in accordance with OMB Circular A-21, ``Cost Principles for
Education Institutions.''
(4) Hospitals must determine allowability of costs in accordance
with the provisions of Appendix E of 45 CFR Part 74, ``Principles for
Determining Costs Applicable to Research and Development Under Grants
and Contracts with Hospitals.''
(5) Commercial organizations and those non-profit organizations
listed in Attachment C to OMB Circular A-122 must determine allowability
of costs in accordance with the provisions of the Federal Acquisition
Regulation (FAR) at 48 CFR Part 31.
(d) Information technology costs. In addition to the allowable cost
provisions identified in Sec. 645.235 of this subpart, the costs of
information technology--computer hardware and software--will only be
allowable under WtW grants when such computer technology is ``Year 2000
compliant.'' To meet this requirement, information technology must be
able to accurately process date/time data (including, but not limited
to, calculating, comparing and sequencing) from, into and between the
twentieth and twenty-first centuries, and the years 1999 and 2000. The
information technology must also be able to make leap year calculations.
Furthermore, ``Year 2000 compliant'' information technology when used in
combination with other technology shall accurately process date/time
data if the other information technology properly exchanges date/time
data with it.
(e) Prohibition on construction or purchase of facilities. WtW
federal funds may not be used to pay for the construction or purchase of
facilities or buildings.
(f) Prohibition on business start-up costs. WtW federal funds may
not be used to cover the costs of business start-up and/or capital
ventures.
(g) Government-wide debarment and suspension, and government-wide
drug-free workplace requirements. All WtW grant recipients and
subrecipients are required to comply with:
(1) Government-wide requirements for debarment and suspension which
are codified at 29 CFR part 98, subparts A through E; and
(2) The government-wide requirements for a drug-free workplace.
Recipients and subrecipients are required to comply with 29 CFR part 98,
subpart F, except that the definition of ``grantee'' shall be read to
include recipients and subrecipients.
(h) Restrictions on lobbying. All WtW grant recipients and
subrecipients are required to comply with the restrictions on lobbying
which are codified in the DOL regulations at 29 CFR Part 93.
(i) Nondiscrimination. All WtW grant recipients and subrecipients
are required to comply with the nondiscrimination provisions codified in
the DOL regulations at 29 CFR parts 31 and 32. In addition, 29 CFR part
37 applies to recipients of WtW financial assistance who are also WIA
recipients and applies to recipients of WtW financial assistance who
operate programs that are part of the One-Stop system established under
the Workforce Investment Act, to the extent that the WtW programs and
activities are being conducted as part of the One-Stop delivery system.
Furthermore, WtW programs that are part of larger State agencies that
are recipients of WIA title I financial assistance must also comply with
the provisions of 29 CFR part 37. For purposes of this paragraph, the
term ``recipient'' has the same meaning as the term is defined in 29 CFR
part 37. That part also contains
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participant rights related to nondiscrimination.
(j) Nepotism. (1) No individual may be placed in a WtW employment
activity if a member of that person's immediate family is engaged in an
administrative capacity for the employing agency.
(2) To the extent that an applicable State or local legal
requirement regarding nepotism is more restrictive than this provision,
such State or local requirement shall be followed.
Sec. 645.233 What are the time limitations on the expenditure of
Welfare-to-Work grant funds?
(a) Formula grant funds: The maximum time limit for the expenditure
of a given fiscal year allotment is three years from the effective date
of the Federal grant award to the State. The maximum time limit will be
allowed and will be specified in the Department's formula grant document
for each fiscal year of funds provided to the State. Any remaining funds
that have not been expended at the end of the expenditure period must be
returned to the Department in accordance with the applicable closeout
procedures for formula grants.
(b) Competitive grant funds: The maximum time limit for the
expenditure of these funds is three years from the effective date of
award, but will, in all cases, be determined by the grant period and the
terms and conditions specified in the Federal grant award agreement
(including any applicable grant modification documents). Any remaining
funds that have not been expended at the end of the approved grant
period must be returned to the Department in accordance with the
applicable closeout procedures for competitive grants (section
503(a)(5)(C)(vii)).
Sec. 645.235 What types of activities are subject to the
administrative cost limit on Welfare-to-Work grants?
(a) Administrative cost limitation (section 404(b)(1))--(1) Formula
grants to states. Expenditures for administrative purposes under WtW
formula grants to States are limited to fifteen percent (15%) of the
grant award.
(2) Competitive grants. The limitation on expenditures for
administrative purposes under WtW competitive grants will be specified
in the grant agreement but in no case shall the limitation be more than
fifteen percent (15%) of the grant award.
(3) Although administrative in nature, costs of information
technology--computer hardware and software--needed for tracking and
monitoring of WtW program, participant, or performance requirements, are
excluded from the administrative cost limit calculation.
(b) The costs of administration are that allocable portion of
necessary and allowable costs associated with those specific functions
identified in paragraph (c) of this section for the administration of
the WtW program and which are not related to the direct provision of
services to participants. These costs can be both personnel and non-
personnel and both direct and indirect.
(c) The costs of administration are the costs associated with
performing the following functions:
(1) Performing overall general administrative functions and
coordination of those functions under WtW including:
(i) Accounting, budgeting, financial and cash management functions;
(ii) Procurement and purchasing functions;
(iii) Property management functions;
(iv) Personnel management functions;
(v) Payroll functions;
(vi) Coordinating the resolution of findings arising from audits,
reviews, investigations and incident reports;
(vii) Audit functions;
(viii) General legal services functions; and
(ix) Developing systems and procedures, including information
systems, required for these administrative functions;
(2) Performing oversight and monitoring responsibilities related to
WtW administrative functions,
(3) Costs of goods and services required for administrative
functions of the program, including goods and services such as rental or
purchase of equipment, utilities, office supplies, postage, and rental
and maintenance of office space;
(4) Travel costs incurred for official business in carrying out
administrative
[[Page 248]]
activities or the overall management of the WtW system; and
(5) Costs of information systems related to administrative functions
(for example, personnel, procurement, purchasing, property management,
accounting and payroll systems) including the purchase, systems
development and operating costs of such systems.
(d)(1) Only that portion of the costs of WtW grantees that are
associated with the performance of the administrative functions
described in paragraph (c) of this section and awards to subrecipients
or vendors that are solely for the performance of these administrative
functions are classified as administrative costs. All other costs are
considered to be for the direct provision of WtW activities and are
classified as program costs.
(2) Personnel and related non-personnel costs of staff who perform
both administrative functions specified in paragraph (c) of this section
and programmatic services or activities are to be allocated as
administrative or program costs to the benefitting cost objectives/
categories based on documented distributions of actual time worked or
other equitable cost allocation methods.
(3) Specific costs charged to an overhead or indirect cost pool that
can be identified directly as a program cost may be charged as a program
cost. Documentation of such charges must be maintained.
(4) Except as provided at paragraph (d)(1) of this section, all
costs incurred for functions and activities of subrecipients and vendors
are program costs.
(5) Costs of the following information systems including the
purchase, systems development and operating (e.g., data entry) costs are
charged to the program category.
(i) Tracking or monitoring of participant and performance
information;
(ii) Employment statistics information, including job listing
information, job skills information, and demand occupation information;
and
(iii) Local area performance information.
Sec. 645.240 What are the reporting requirements for Welfare-to-Work
programs?
(a) General. State formula and other direct competitive grant
recipients must report financial and participant data in accordance with
revised instructions that will be issued by the Department after
consultation with the Secretary of Health and Human Services, States,
and organizations that represent State or local governments. Reports
must be submitted to the Department quarterly. Existing WtW financial
reporting instructions and formats are available on the WtW web site at
http://wtw.doleta.gov/linkpages/tegltein.htm. The Internet reporting
system for WtW grantees is accessible at http://
www.etareports.doleta.gov.
(b) Subrecipient reporting. A State formula or other direct
competitive grant recipient may impose different forms or formats,
shorter due dates, and more frequent reporting requirements on
subrecipients. However, the recipient is required to meet the reporting
requirements imposed by the Department.
(c) Financial reports. Each grant recipient must submit financial
reports to the Department. Reported expenditures and program income must
be on the accrual basis of accounting and cumulative by fiscal year of
appropriation. If the recipient's accounting records are not normally
kept on the accrual basis of accounting, the recipient must develop
accrual information through an analysis of the documentation on hand.
(d) Participant reports. Each grant recipient must submit
participant reports to the Department. Participant data must be
aggregate data, and, for most data elements, must be cumulative by
fiscal year of appropriation.
(e) Due dates. Financial and participant reports are due no later
than 45 days after the end of each quarter. A final financial and
participant report is required 90 days after the expiration of a funding
period or the termination of grant support.
[[Page 249]]
Sec. 645.245 Who is responsible for oversight and monitoring of
Welfare-to-Work grants?
(a) The Secretary may monitor all recipients and subrecipients of
all grants awarded and funds expended under WtW. Federal oversight will
be conducted primarily at the State level for formula grants and at the
recipient level for competitive grants.
(b) The Governor must monitor local boards (or other approved
administrative entities) funded under the State's formula allocated
grants on a periodic basis for compliance with applicable laws and
regulations. The Governor must develop and make available for review a
State monitoring plan.
Sec. 645.250 What procedures apply to the resolution of findings
arising from audits, investigations, monitoring and oversight
reviews?
(a) Resolution of subrecipient level findings.
(1) The WtW grantee is responsible for the resolution of findings
that arise from its monitoring reviews, investigations and audits
(including OMB Circular A-133 audits) of subrecipients.
(2) A State or competitive grantee, as appropriate, must use the
audit resolution, debt collection and appeal procedures that it uses for
other Federal grant programs.
(3) If a State or competitive grantee, as appropriate, does not have
such procedures, it must prescribe standards and procedures for the WtW
grant program.
(b) Resolution of State level findings.
(1) The Secretary is responsible for the resolution of findings that
arise from Federal audits, monitoring reviews, investigations, incident
reports, and recipient level OMB Circular A-133 audits.
(2) The Secretary will use the DOL audit resolution process,
consistent with the Single Audit Act of 1996 and OMB Circular A-133.
(3) A final determination issued by a grant officer pursuant to this
process may be appealed to the DOL Office of Administrative Law Judges
under the procedures at Sec. 645.800.
(c) Resolution of nondiscrimination findings. Findings arising from
investigations or reviews conducted under nondiscrimination laws shall
be resolved in accordance with those laws and the applicable
implementing regulations.
Sec. 645.255 What nondiscrimination protections apply to participants
in Welfare-to-Work programs?
(a) All participants in WtW programs under this part shall have such
rights as are available under all applicable Federal, State and local
laws prohibiting discrimination, and their implementing regulations,
including:
(1) The Age Discrimination Act of 1975 (42 U.S.C. 6101 et seq.);
(2) Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794);
(3) The Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et
seq.); and
(4) Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et
seq.).
(b) Participants in work activities, as defined in section 407(a) of
the Social Security Act, operated with WtW funds, shall not be
discriminated against because of gender. Participants alleging gender
discrimination may file a complaint using the State's grievance system
procedures as described in Sec. 645.270 of this subpart (section
403(a)(5)(J)(iii)) of the Act). Participants alleging gender
discrimination in WtW programs conducted by One-Stop partners as part of
the One-Stop delivery system may file a complaint using the complaint
processing procedures developed and published by the State in accordance
with the requirements of 29 CFR 37.70-37.80.
(c) Complaints alleging discrimination in violation of any
applicable Federal, State or local law, such as Title VII of the Civil
Rights Act of 1964 (42 U.S.C. 2000e et seq.), Title IX of the Education
Amendments of 1972 (20 U.S.C. 1681 et seq.), the Pregnancy
Discrimination Act (42 U.S.C. 2000e (paragraph k)), or Section 188 of
the Workforce Investment Act of 1998 (29 U.S.C. 2938), as well as those
listed in paragraph (a) of this section, shall be processed in
accordance with those laws and the implementing regulations.
(d) Questions about or complaints alleging a violation of the
nondiscrimination laws in paragraph (a) of this section may be directed
or mailed to the Director, Civil Rights Center,
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U.S. Department of Labor, Room N-4123, 200 Constitution Avenue, NW,
Washington, D.C. 20210 for processing.
Sec. 645.260 What health and safety provisions apply to participants
in Welfare-to-Work programs?
(a) Participants in an employment activity operated with WtW funds,
as defined in Sec. 645.220 of this part, are subject to the same health
and safety standards established under State and Federal law which are
applicable to similarly employed employees, of the same employer, who
are not participants in programs under WtW.
(b) Participants alleging a violation of these health and safety
standards may file a complaint pursuant to the procedures contained in
Sec. 645.270 of this part (section 403(a)(5)(J)(ii)).
Sec. 645.265 What safeguards are there to ensure that participants in
Welfare-to-Work employment activities do not displace other
employees?
(a) An adult participating in an employment activity operated with
WtW funds, as described in Sec. 645.220 (b) and (c) of this subpart,
may fill an established position vacancy subject to the limitations in
paragraph (c) of this section.
(b) An employment activity operated with WtW funds, as described in
Sec. 645.220(c) of this subpart, must not violate existing contracts
for services or collective bargaining agreements. Where such an
employment activity would violate a collective bargaining agreement, the
appropriate labor organization and employer must provide written
concurrence before the employment activity is undertaken.
(c) An adult participating in an employment activity operated with
WtW funds, as described in Sec. 645.220(c) of this subpart, must not be
employed or assigned:
(1) When any other individual is on layoff from the same or any
substantially equivalent job within the same organizational unit;
(2) If the employer has terminated the employment of any regular,
unsubsidized employee or otherwise caused an involuntary reduction in
its workforce with the intention of filling the vacancy so created with
the WtW participant; and,
(3) If the employer has caused an involuntary reduction to less than
full time in hours of any employee in the same or substantially
equivalent job within the same organizational unit.
(d) Regular employees and program participants alleging displacement
may file a complaint pursuant to Sec. 645.270 of this part (section
403(a)(5)(J)(i)).
Sec. 645.270 What procedures are there to ensure that currently
employed workers may file grievances regarding displacement
and that Welfare-to-Work participants in employment activities
may file grievances regarding displacement, health and safety
standards and gender discrimination?
(a) The State shall establish and maintain a grievance procedure for
resolving complaints from:
(1) Regular employees that the placement of a participant in an
employment activity operated with WtW funds, as described in Sec.
645.220 of this part, violates any of the prohibitions described in
Sec. 645.265 of this part; and
(2) Program participants in an employment activity operated with WtW
funds, as described in Sec. 645.220 of this part, that any employment
activity violates any of the prohibitions described in Sec. Sec.
645.255(d), 645.260, or 645.265 of this part.
(b) Such grievance procedure should include an opportunity for
informal resolution.
(c) If no informal resolution can be reached within the specified
time as established by the State as part of its grievance procedure,
such procedure shall provide an opportunity for the dissatisfied party
to receive a hearing upon request.
(d) The State shall specify the time period and format for the
hearing portion of the grievance procedure, as well as the time period
by which the complainant will be provided the written decision by the
State.
(e) A decision by the State under paragraph (d) of this section may
be appealed by any dissatisfied party within 30 days of the receipt of
the State's written decision, according to the time period and format
for the appeals portion of the grievance procedure as specified by the
State.
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(f) The State shall designate the State agency which will be
responsible for hearing appeals. This agency shall be independent of the
State or local agency which is administering, or supervising the
administration of the State TANF and WtW programs.
(g) No later than 120 days of receipt of an individual's original
grievance, the State agency, as designated in paragraph (f) of this
section, shall provide a written final determination of the individual's
appeal.
(h) The grievance procedure shall include remedies for violations of
Sec. Sec. 645.255(d), 645.260, and 645.265 of this part which may
continue during the grievance process and which may include:
(1) Suspension or termination of payments from funds provided under
this part;
(2) Prohibition of placement of a WtW participant with an employer
that has violated Sec. Sec. 645.255(b), 645.260, and 645.265 of this
part;
(3) Where applicable, reinstatement of an employee, payment of lost
wages and benefits, and reestablishment of other relevant terms,
conditions, and privileges of employment; and,
(4) Where appropriate, other equitable relief (section
403(a)(5)(J)(iv)).
(i) Participants alleging gender discrimination by WtW programs that
are not part of the One-Stop system may file a complaint using the
grievance system procedures described above. Participants alleging
gender discrimination by WtW programs that are part of the One-Stop
system may file a complaint using the procedures developed by the State
under the WIA nondiscrimination regulations at 29 CFR 37.70-37.80.
Subpart C_Additional Formula Grant Administrative Standards and
Procedures
Sec. 645.300 What constitutes an allowable match?
(a) A State is entitled to receive two (2) dollars of Federal funds
for every one (1) dollar of State match expenditures, up to the amount
available for allotment to the State based on the State's percentage for
WtW formula grant for the fiscal year. The State is not required to
provide a level of match necessary to support the total amount available
to it based on the State's percentage for WtW formula grant. However, if
the proposed match is less than the amount required to support the full
level of Federal funds, the grant amount will be reduced accordingly
(section 403(a)(5)(A)(i)(I)).
(b) States shall follow the match or cost-sharing requirements of
the ``Common Rule'' Uniform Administrative Requirements for Grants and
Cooperative Agreements to State and Local Governments (codified for DOL
at 29 CFR 97.24). Paragraphs (b)(1)(i) and (ii), (b)(3), and (b)(4) and
(c)(1) of this section are in addition to the common rule requirements.
Also, paragraphs included in the common rule which relate to the use of
donated buildings and other real property as match have been excluded
from this provision.
(1) Only costs that would be allowable if paid for with WtW grant
funds will be accepted as match.
(i) Because the use of Federal funds is prohibited for construction
or purchase of facilities or buildings except where there is explicit
statutory authority permitting it, costs incurred for the construction
or purchase of facilities or buildings shall not be acceptable as match
for a WtW grant.
(ii) Because the costs of construction or purchase of facilities or
buildings are unallowable as match, the donation of a building or
property as a third party in-kind contribution is also unallowable as a
match for a WtW grant.
(2) A match or cost-sharing requirement may be satisfied by either
or both of the following:
(i) Allowable costs incurred by the grantee, subgrantee or a cost
type contractor under the assistance agreement. This includes allowable
cost borne by non-Federal grants or by others and cash donations from
non-Federal third parties.
(ii) The value of third party in-kind contributions applicable to
the FY period to which the cost-sharing or matching requirement applies.
(3) No more than seventy-five percent (75%) of the total match
expenditures may be in the form of third party in-kind contributions.
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(4) Match expenditures must be recorded in the books of account of
the entity that incurred the cost or received the contribution. These
amounts may be rolled up and reported as aggregate State level match.
(c) Qualifications and exceptions--
(1) The matching requirements may not be met by the use of an
employer's share of participant wage payments (e.g., employer share of
OJT wages).
(2) Costs borne by other Federal grant agreements. A cost-sharing or
matching requirement may not be met by costs borne by another Federal
grant. This prohibition does not apply to income earned by a grantee or
subgrantee from a contract awarded under another Federal grant.
(3) General revenue sharing. For the purpose of this section,
general revenue sharing funds distributed under 31 U.S.C. 6702 are not
considered Federal grant funds.
(4) Cost or contributions counted towards other Federal cost-sharing
requirements. Neither costs nor the values of third party in-kind
contributions may count towards satisfying a cost-sharing or matching
requirement of a grant agreement if they have been or will be counted
towards satisfying a cost-sharing or matching requirement of another
Federal grant agreement, a Federal procurement contract, or any other
award of Federal funds.
(5) Costs financed by program income. Costs financed by program
income, as defined in 29 CFR 97.25, shall not count towards satisfying a
cost-sharing or matching requirement unless they are expressly permitted
in the terms of the assistance agreement. (This use of general program
income is described in 29 CFR 97.25(g)).
(6) Services or property financed by income earned by contractors.
Contractors under a grant may earn income from the activities carried
out under the contract in addition to the amounts earned from the party
awarding the contract. No costs of services or property supported by
this income may count toward satisfying a cost-sharing or matching
requirement unless other provisions of the grant agreement expressly
permit this kind of income to be used to meet the requirement.
(7) Records. Costs and third party in-kind contributions counting
towards satisfying a cost-sharing or matching requirement must be
verifiable from the records of grantees and subgrantee or cost-type
contractors. These records must show how the value placed on third party
in-kind contributions was derived. To the extent feasible, volunteer
services will be supported by the same methods that the organization
uses to support the allocability of regular personnel costs.
(8) Special standards for third party in-kind contributions. (i)
Third party in-kind contributions count towards satisfying a cost-
sharing or matching requirement only where, if the party receiving the
contributions were to pay for them, the payments would be allowable
costs.
(ii) Some third party in-kind contributions are goods and services
that, if the grantee, subgrantee, or contractor receiving the
contribution had to pay for them, the payments would have been an
indirect costs. Cost sharing or matching credit for such contributions
shall be given only if the grantee, subgrantee, or contractor has
established, along with its regular indirect cost rate, a special rate
for allocating to individual projects or programs the value of the
contributions.
(iii) A third party in-kind contribution to a fixed-price contract
may count towards satisfying a cost-sharing or matching requirement only
if it results in:
(A) An increase in the services or property provided under the
contract (without additional cost to the grantee or subgrantee) or
(B) A cost savings to the grantee or subgrantee.
(iv) The values placed on third party in-kind contributions for
cost-sharing or matching purposes must conform to the rules in the
succeeding sections of this part. If a third party in-kind contribution
is a type not treated in those sections, the value placed upon it must
be fair and reasonable.
(d) Valuation of donated services--(1) Volunteer services. Unpaid
services provided to a grantee or subgrantee by individuals must be
valued at rates consistent with those ordinarily paid for
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similar work in the grantee's or subgrantee's organization. If the
grantee or subgrantee does not have employees performing similar work,
the rates must be consistent with those ordinarily paid by other
employers for similar work in the same labor market. In either case, a
reasonable amount for fringe benefits may be included in the valuation.
(2) Employees of other organizations. When an employer other than a
grantee, subgrantee, or cost-type contractor furnishes free of charge
the services of an employee in the employee's normal line of work, the
services must be valued at the employee's regular rate of pay exclusive
of the employee's fringe benefits and overhead costs. If the services
are in a different line of work, paragraph (d)(1) of this section
applies.
(e) Valuation of third party donated supplies and loaned equipment
or space. (1) If a third party donates supplies, the contribution must
be valued at the market value of the supplies at the time of donation.
(2) If a third party donates the use of equipment or space in a
building but retains title, the contribution must be valued at:
(i) the fair rental rate of the equipment or space for property
donated by non-governmental entities, or
(ii) a depreciation or use-allowance based on the property's market
value at the time it was donated for property donated by governmental
entities.
Sec. 645.310 What assurance must a State provide that it will make the
required matching expenditures?
In its State plan, a State must provide a written estimate of
planned matching expenditures and describe the process by which the
funds will be tracked and reported to ensure that the State meets its
projected match (section 403(a)(5)(A)(i)(I)).
Sec. 645.315 What actions are to be taken if a State fails to make the
required matching expenditures?
(a) If State match expenditures do not satisfy the requirements of
the FY grant award by the end of the three year fund availability
period, the grant award amount will be reduced by the appropriate
corresponding amount (i.e., the grant will be reduced by two (2) dollars
for each one (1) dollar shortfall in State matching funds) when the
grant is closed out.
(b) Compliance with the fifteen percent (15%) administrative cost
limit will be recalculated based on the FY formula grant award amount,
as reduced under paragraph (a) of this section.
Subpart D_State Formula Grants Administration
Sec. 645.400 Under what conditions may the Governor request a waiver
to designate an alternate local administering agency?
(a)(1) The Governor may include in the State's WtW Plan a waiver
request to select an agency other than the local board or PIC to
administer the program for one or more local areas or SDA's in a State;
or
(2) When the Governor determines the local board or alternate
administering agency has not coordinated its expenditures with the
expenditure of funds provided to the State under TANF, pursuant to
section 403(a)(5)(A)(vii)(II) of the Act, the Governor must request a
waiver.
(b) The Governor shall bear the burden of proving that the
designated alternate administering agency, rather than the local board
or other alternate administering agency, would improve the effectiveness
or efficiency of the administration of WtW funds in the SDA. The
Governor's waiver request shall include information to meet that burden.
The Governor shall provide a copy of the waiver request and any
supporting information submitted to the Secretary to the local board and
CEO of the local area for which an alternative administering agency is
requested.
(c) The local board and CEO shall have fifteen (15) days in which to
submit his or her written response to the Department. The local board
and CEO shall provide a copy of such response to the Governor.
(d) The Secretary will assess the waiver information submitted by
the Governor, including input from the
[[Page 254]]
local board and CEO in reaching the decision whether to permit the use
of an alternate administering agency.
(e) The Secretary shall approve a waiver request if she determines
that the Governor has established that the designated alternate
administering agency, rather than the local board or other administering
agency, will improve the effectiveness or efficiency of the
administration of WtW funds provided for the benefit of the local area.
(f) Where an alternate administering agency is approved by the
Secretary, such administrative entity shall coordinate with the CEO for
the applicable local area(s) regarding the expenditure of WtW grant
funds in the local area(s).
(g) The decision of the Secretary to approve or deny a waiver
request will be issued promptly and shall constitute final agency
action.
Sec. 645.410 What elements will the State use in distributing funds
within the State?
(a) Of the WtW funds allotted to the State, not less than 85 percent
of the State allotment must be distributed to the local areas or SDA's
in the State.
(1) The State shall prescribe a formula for determining the amount
of funds to be distributed to each local area or SDA in the State using
no factors other than the three factors described in paragraphs (2) and
(3) of this paragraph;
(2) The formula prescribed by the Governor must include as one of
the formula factors for distributing funds the provision at section
403(a)(5)(A)(vi)(I)(aa) of the Act. The Governor is to distribute funds
to a local area or SDA based on the number by which the population of
the area with an income that is less than the poverty line exceeds 7.5
percent of the total population of the area, compared to all such
numbers in all such areas in the State. The Governor must assign a
weight of not less than 50 percent to this factor;
(3) The Governor shall distribute the remaining funds, if any, to
the local area or SDA's utilizing only one or both of the following
factors:
(i) the local area or SDA's share of the number of adults receiving
assistance under TANF or the predecessor program in the local area or
SDA for 30 months or more (whether consecutive or not), relative to the
number of such adults residing in the State;
(ii) the local area or SDA's share of the number of unemployed
individuals residing in the local area or SDA, relative to the number of
such individuals residing in the State.
(4) If the amount to be distributed to a local area or SDA by the
Governor's formula is less than $100,000, the funds shall be available
to be used by the Governor to fund projects described at paragraph (b)
of this section.
(5) States shall use the guidance provided at section 403(a)(5)(D)
of the Act in determining the number of individuals with an income that
is less than the poverty line.
(6) Local Boards (or alternate administering agency) shall
determine, pursuant to section 403(a)(5)(A)(vii)(I) of the Act, on which
individual(s) and on which allowable activities to expend its WtW fund
allocation.
(7) The State must distribute the local boards' or SDAs' allocations
in a timely manner, but not longer than 30 days from receipt of the
State's fund allotment.
(b) Of the funds allocated to the State, up to 15 percent of the
funds may be retained at the State level to fund projects that appear
likely to help long-term recipients of assistance enter unsubsidized
employment. Any additional funds available as a result of the process
described at paragraph (a)(4) of this section, shall also be available
to be used to fund projects to help long-term recipients of assistance
enter unsubsidized jobs.
(c) The Governors may distribute the funds retained pursuant to
paragraph (b) of this section to a variety of workforce organizations,
in addition to local boards or alternate administering agencies, and
other entities such as One-Stop systems, private sector employers, labor
organizations, business and trade associations, education agencies,
housing agencies, community development corporations, transportation
agencies, community-based and faith-based organizations, disability
community organizations, community
[[Page 255]]
action agencies, and colleges and universities which provide some of the
assistance needed by the targeted population.
Sec. 645.415 What planning information must a State submit in order to
receive a formula grant?
(a) Each State seeking financial assistance under the formula grant
portion of the WtW legislation must submit an annual plan meeting the
requirements prescribed by the Secretary. This plan shall be in the form
of an addendum to the TANF State plan and shall be submitted to the
Secretaries of Labor and Health and Human Services.
(b) The Secretary shall review the State plan for compliance with
the statutory and regulatory provisions of the WtW program. The
Secretary's decision whether to accept a State plan as in compliance
with the Act shall constitute final agency action.
(c) If the Governor has requested a waiver to permit the selection
of an alternate administering agency in the State plan, the provisions
of Sec. 645.400 of this part shall apply (section 403(a)(5)(A)(ii)).
Sec. 645.420 What factors will be used in measuring State performance?
(a) The Department will use the following factors to measure State
performance:
(1) Job entry rate as measured by the proportion of WtW participants
who enter either subsidized employment or unsubsidized employment,
(2) Substantive job entry rate as measured by the proportion of WtW
participants who are placed in or who have moved into subsidized or
unsubsidized employment of 30 hours or more per week,
(3) Retention as measured by the proportion of WtW participants who
remain in unsubsidized employment six months in the second subsequent
quarter after the quarter in which placement occurred after initial
placement, and
(4) Measured earnings gains of WtW participants who remain in
unsubsidized employment six months after initial placement.
(b) The formula for calculating the performance bonus is weighted as
follows:
(1) 30 percent on job entry rate,
(2) 30 percent on substantive job entry rate,
(3) 20 percent on retention in unsubsidized employment,
(4) 20 percent on earnings gains in unsubsidized employment.
The formula will reflect general economic conditions on a State-by-
State basis.
(c) The formula shall serve as the basis for the award of FY 2000
bonus grants based on successful performance to be made in FY 2001
(section 403(a)(5)(E)).
Sec. 645.425 What are the roles and responsibilities of the State(s)
and local boards or alternate administering agencies?
(a) State roles and responsibilities. A State:
(1) Designates State WtW administering agency;
(2) Provides overall administration of WtW funds, consistent with
the WtW statute, WtW regulations and the State's WtW Plan;
(3) Develops the State WtW Plan in consultation and coordination
with appropriate entities in substate areas, such as One-Stop systems,
private sector employers, labor organizations, business and trade
associations, education agencies, housing agencies, community
development corporations, transportation agencies, community-based and
faith-based organizations, disability community organizations, community
action agencies, and colleges and universities which provide some of the
assistance needed by the targeted population (section
403(a)(5)(A)(ii)(I)(cc));
(4) Distributes funds to SDAs, consistent with the provisions
described at Sec. 645.410(a) (section 403(a)(5)(A)(ii)(I)(bb));
(5) Conducts oversight and monitoring of WtW activities and fund
expenditures at the State and local levels for compliance with
applicable laws and regulations, consistent with the provisions at Sec.
645.245 and provides technical assistance as appropriate;
[[Page 256]]
(6) Ensures coordination of local board or alternate administering
agency fund expenditures with the State TANF expenditures and other
programs (section 403(a)(5)(A)(ii)(I)(dd));
(7) Determines whether to request waivers to select an alternate
administering agency consistent with the provisions described at Sec.
645.400 of this part (sections 403(a)(5)(A)(ii)(I)(ee) and
403(a)(5)(A)(vii)(III));
(8) Manages and distributes State level WtW funds (15 percent),
consistent with the provisions at Sec. 645.410(b) and (c) (section
403(a)(5)(A)(vi)(III));
(9) Ensures that the 15 percent administration limitation and the
match requirement are met;
(10) Ensures that worker protections provisions are observed and
establishes an appropriate grievance process, consistent with Sec. Sec.
645.255 through 645.270 of this part (section 403(a)(5)(J));
(11) Provides comments on Competitive Grant Application(s) from
eligible entities within the State, consistent with Sec. 645.510 of
this part (section 403(a)(5)(B)(ii));
(12) Cooperates with the Department of Health and Human Services on
the evaluation of WtW programs (section 403(a)(5)(A)(ii)(III));
(13) Provides technical assistance to PIC's, local boards or
alternate administering agencies; and
(14) Establishes internal reporting requirements to ensure Federal
reports are accurate, complete and are submitted on a timely basis,
consistent with Sec. 645.240 of this part.
(b) Local Boards (or alternate administering agency) roles and
responsibilities. A local board:
(1) Has sole authority, in coordination with CEOs, to expend formula
funds (section 403(a)(5)(A)(vii)(I));
(2) Has authority to determine the individuals to be served in the
local area (section 403(a)(5)(A)(vii)(I));
(3) Has authority to determine the services to be provided in the
local area (section 403(a)(5)(A)(vii)(I));
(4) Ensures funds are expended on eligible recipients and on
allowable activities, consistent with Sec. 645.410(a)(5) of this part;
(5) Coordinates WtW fund expenditures with State TANF expenditures
and other programs (section 403(a)(5)(A)(ii)(dd));
(6) Ensures that there is an assessment and an individual service
strategy in place for each WtW participant, consistent with Sec.
645.225(a) and (b) of this part;
(7) Conducts oversight and monitoring of subrecipients, consistent
with the provisions at Sec. 645.245 of this part;
(8) Ensures worker protection provisions and grievance process are
observed, consistent with State guidelines (section 403(a)(5)(J)); and
(9) Consults with and provides comments on private entity
Competitive Grant Application(s), consistent with the provisions at
Sec. 645.500(b)(1)(i) of this part.
Sec. 645.430 How does the Welfare-to-Work program relate to the One-
Stop system and Workforce Investment Act (WIA) programs?
(a) As provided in the Workforce Investment Act regulations at 20
CFR 663.620, the local WtW formula grant program operator is a required
partner in the One-Stop system. 20 CFR part 662 describes the roles of
such partners in the One-Stop system and applies to the WtW formula
grant program operators. A Memorandum of Understanding must be developed
between the Local Workforce Investment Board and the WtW program that
meets the requirements of 20 CFR 662.300, such as containing provisions
relating to the services to be provided through the One-Stop system and
methods for referring individuals between the One-Stop operator and the
partner WtW program.
(b) WtW participants may also be served by the WIA programs and,
through appropriate linkages and referrals, these individuals will have
access to a broader range of activities and services through the
cooperation of the WtW and WIA programs in the One-Stop system. For
example, WtW participants, who are also determined eligible for WIA, and
who need occupational skills training, may be referred through the One-
Stop system to receive WIA training. These participants are also
eligible to receive services available under WtW, such as transportation
and child care while participating in the WIA activity.
[[Page 257]]
(c) WIA participants, who are determined to be eligible for WtW, may
also be served by the WtW programs through cooperation with the WIA
programs in the One-Stop system. For example, WIA participants, who are
also determined eligible for WtW, may be referred to the WtW program for
job placement and other WtW assistance.
(d) 29 CFR part 37 applies to recipients of WtW financial assistance
who operate programs that are part of the One-Stop system established
under WIA to the extent that the WtW programs and activities are being
conducted as part of the One-Stop delivery system.
Subpart E_Welfare-To-Work Competitive Grants
Sec. 645.500 Who are eligible applicants for competitive grants?
(a) Eligible applicants for competitive grants are:
(1) Local boards or alternate administering agencies
(2) Political subdivisions of a State; and
(3) Private entities, as defined in Sec. 645.120 of this part,
including nonprofit organizations such as community development
corporations, community-based and faith-based organizations, disability
community organizations, community action agencies, and public and
private colleges and universities, and other qualified private
organizations.
(b) Entities other than a local board or alternate administering
agency or a political subdivision of the State must submit an
application for competitive grant funds in conjunction with the
applicable local board or alternate administering agency or political
subdivision.
(1) The term ``in conjunction with'' shall mean that the application
submitted by such an entity must include a signed certification by both
the applicant and either the applicable local board or alternate
administering agency or political subdivision that:
(i) The applicant has consulted with the applicable local board or
alternate administering agency or political subdivision during the
development of the application; and
(ii) The activities proposed in the application are consistent with,
and will be coordinated with, WtW efforts of the local board or
alternate administering agency or political subdivision.
(2) If the applicant is unable to include such a certification in
its application, the applicant will be required to certify, and provide
information indicating that efforts were undertaken to consult with the
local board or alternate administering agency or political subdivision
and that the local board or alternate administering agency or political
subdivision was provided a sufficient opportunity to cooperate in the
development of the project plan and to review and comment on the
application prior to its submission to the Secretary. ``Sufficient
opportunity for local Board or alternate administering agency or
political subdivision review and comment'' shall mean at least 30
calendar days.
(3) The certification described in paragraph (b)(1) of this section,
or the evidence of efforts to consult described in paragraph (b)(2),
must be with each local board or alternate administering agency or
political subdivision included in the geographic area in which the
project proposed in the application is to operate (section
403(a)(5)(B)(ii)).
Sec. 645.510 What is the required consultation with the Governor?
(a) All applicants for competitive grants, including local boards or
alternate administering agencies and political subdivisions, must
consult with the Governor by submitting their application to the
Governor or the designated State administrative entity for the WtW
program for review and comment prior to submission of the application to
the Secretary. The application submitted to the Secretary must include:
(1) Comments on the application from the State; or
(2) Information indicating that the State was provided a sufficient
opportunity for review and comment prior to submission to the Secretary.
``Sufficient opportunity for State review and comment'' shall mean at
least 15 calendar days.
(b) For private entity applicants, the submission of the application
for State
[[Page 258]]
review and comment must follow the 30 day period provided for local
board or alternate administering agency/political subdivision review.
Evidence of local board or alternate administering agency or political
subdivision review should be included in the submission to the State
(section 403(a)(5)(B)(ii)).
Sec. 645.515 What are the program and administrative requirements that
apply to both the formula grants and competitive grants?
(a) All of the general program requirements and administrative
standards set by 29 CFR Part 645 Subpart B apply (section 403(a)(5)(C)
and section 404(b)).
(b) In addition, competitive grants will be subject to:
(1) Supplemental reporting requirements; and
(2) Additional monitoring and oversight requirements based on the
negotiated scope-of-work of individual grant awards (section
403(a)(5)(B)(iii) and (v)).
Sec. 645.520 What are the application procedures and timeframes for
competitive grant funds?
(a) The Secretary shall establish appropriate application
procedures, selection criteria and an approval process to ensure that
grant awards accomplish the purpose of the competitive grant funds and
that available funds are used in an effective manner.
(b) The Secretary shall publish such procedures in the Federal
Register and establish submission timeframes in a manner that allows
eligible applicants sufficient time to develop and submit quality
project plans (section 403(a)(5)(B)(i) and (iii)).
Sec. 645.525 What special consideration will be given to rural areas
and cities with large concentrations of poverty?
(a) Competitive grant awards will be targeted to geographic areas of
significant need. In developing application procedures, special
consideration will be given to rural areas and cities with large
concentrations of residents living in poverty.
(b) Grant application guidelines will clarify specific requirements
for documenting need in the local area (section 403(a)(5)(B)(iv)).
Subpart F_Administrative Appeal Process
Sec. 645.800 What administrative remedies are available under this
Part?
(a) Within 21 days of receipt of a final determination that has
directly imposed a sanction or corrective action pursuant to Sec.
645.250(b) of this part, a recipient, subrecipient, or a vendor directly
against which the Grant Officer has imposed a sanction or corrective
action, may request a hearing before the Department of Labor Office of
Administrative Law Judges, pursuant to the provisions of 29 CFR part 96
subpart 96.6.
(b) In accordance with 29 CFR 96.603(b)(2), the rules of practice
and procedure published at 29 CFR part 18 shall govern the conduct of
hearings under this section, except that a request for hearing under
this section shall not be considered a complaint to which the filing of
an answer by DOL or a DOL agency is required. Technical rules of
evidence shall not apply to a hearing conducted pursuant to this part;
however, rules or principles designed to assure production of the most
credible evidence available and to subject testimony to cross-
examination shall apply.
(c) The decision of the Administrative Law Judge (ALJ) shall
constitute final agency action unless, within 20 days of the decision, a
party dissatisfied with the decision of the ALJ has filed a petition for
review with the Administrative Review Board (ARB) (established pursuant
to the provisions of Secretary's Order No. 2-96, published at 61 FR
19977 (May 3, 1996)), specifically identifying the procedure, fact, law
or policy to which exception is taken. Any exception not specifically
urged shall be deemed to have been waived. A copy of the petition for
review must be sent to the opposing party at that time. Thereafter, the
decision of the ALJ shall constitute final agency action unless the ARB,
within 30 days of the filing of the petition for review, has notified
the parties that the case has been accepted for review. Any case
accepted by the ARB shall be decided
[[Page 259]]
within 120 days of such acceptance. If not so decided, the decision of
the ALJ shall constitute final agency action.
PART 646 [RESERVED]
PART 650_STANDARD FOR APPEALS PROMPTNESS_UNEMPLOYMENT COMPENSATION
Sec.
650.1 Nature and purpose of the standard.
650.2 Federal law requirements.
650.3 Secretary's interpretation of Federal law requirements.
650.4 Review of State law and criteria for review of State compliance.
650.5 Annual appeals performance plan.
Authority: Sec. 1102 of the Social Security Act, 42 U.S.C. 1302;
Secretary's Order No. 4-75, dated April 16, 1975. Interpret and apply
secs. 303(a)(1), 303(a)(3), and 303(b)(2) of the Social Security Act (42
U.S.C. 503(a)(1), 503(a)(3), 503(b)(2)).
Source: 37 FR 16173, Aug. 11, 1972, unless otherwise noted.
Sec. 650.1 Nature and purpose of the standard.
(a) This standard is responsive to the overriding concern of the
U.S. Supreme Court in California Department of Human Resources v. Java,
402 U.S. 121 (1971), and that of other courts with delay in payment of
unemployment compensation to eligible individuals, including delays
caused specifically by the adjudication process. The standard seeks to
assure that all administrative appeals affecting benefit rights are
heard and decided with the greatest promptness that is administratively
feasible.
(b) Sections 303(a) (1) and (3) of the Social Security Act require,
as a condition for the receipt of granted funds, that State laws include
provisions for methods of administration reasonably calculated to insure
full payment of unemployment compensation when due, and opportunity for
a fair hearing for all individuals whose claims for unemployment
compensation are denied. The Secretary has construed these provisions to
require, as a condition for receipt of granted funds, that State laws
include provisions for hearing and deciding appeals for all unemployment
insurance claimants who are parties to an administrative benefit appeal
with the greatest promptness that is administratively feasible. What is
the greatest promptness that is administratively feasible in an
individual case depends on the facts and circumstances of that case. For
example, the greatest promptness that is administratively feasible will
be longer in cases that involve interstate appeals, complex issues of
fact or law, reasonable requests by parties for continuances or
rescheduling of hearings or other unforeseen and uncontrollable factors
than it will be for other cases.
(c) In addition, the Secretary has construed section 303(b)(2) of
the Social Security Act as requiring States to comply substantially with
the required provisions of State law. The Secretary considers as
substantial compliance the issuance of minimum percentages of first
level benefit appeal decisions within the periods of time specified in
Sec. 650.4.
(d) Although the interpretation of Federal law requirements in Sec.
650.3 below applies to both first and second level administrative
benefit appeals, the criteria for review of State compliance in Sec.
650.3(b) apply only to first level benefit appeals.
Sec. 650.2 Federal law requirements.
(a) Section 303(a)(1) of the Social Security Act requires that a
State law include provision for:
Such methods of administration * * * as are found by the Secretary
of Labor to be reasonably calculated to insure full payment of
unemployment compensation when due.
(b) Section 303(a)(3) of the Social Security Act requires that a
State law include provision for:
Opportunity for a fair hearing, before an impartial tribunal, for
all individuals whose claims for unemployment compensation are denied.
(c) Section 303(b)(2) of the Social Security Act provides that:
Whenever the Secretary of Labor, after reasonable notice and
opportunity for hearing to the State agency charged with the
administration of the State law, finds that in the administration of the
law there is--
(1) * * *
(2) A failure to comply substantially with any provision specified
in subsection (a)
[[Page 260]]
[303(a)]; the Secretary of Labor shall notify such State agency that
further payments will not be made to the State until he is satisfied
that there is no longer any such denial or failure to comply. Until the
Secretary of Labor is so satisfied, he shall make no further
certification to the Secretary of the Treasury with respect to such
State * * *
Sec. 650.3 Secretary's interpretation of Federal law requirements.
(a) The Secretary interprets sections 303(a)(1) and 303(a)(3) above
to require that a State law include provision for--
(1) Hearing and decision for claimants who are parties to an appeal
from a benefit determination to an administrative tribunal with the
greatest promptness that is administratively feasible, and
(2) Such methods of administration of the appeals process as will
reasonably assure hearing and decision with the greatest promptness that
is administratively feasible.
(b) The Secretary interprets section 303(b)(2) above to require a
State to comply substantially with provisions specified in paragraph (a)
of this section.
Sec. 650.4 Review of State law and criteria for review of State
compliance.
(a) A State law will satisfy the requirements of Sec. 650.3(a) if
it contains a provision requiring, or is construed to require, hearing
and decision for claimants who are parties to an administrative appeal
affecting benefit rights with the greatest promptness that is
administratively feasible.
(b) A State will be deemed to comply substantially with the State
law requirements set forth in Sec. 650.3(a) with respect to first level
appeals, the State has issued at least 60 percent of all first level
benefit appeal decisions within 30 days of the date of appeal, and at
least 80 percent of all first level benefit appeal decisions within 45
days. These computations will be derived from the State's regular
reports required pursuant to the Unemployment Compensation Manual, part
III, sections 4400-4450. \1\
---------------------------------------------------------------------------
\1\ The Unemployment Compensation Manual is available at each
regional office of the Department of Labor and at the headquarters'
office of each State unemployment compensation agency.
[37 FR 16173, Aug. 11, 1972, as amended at 41 FR 6757, Feb. 13, 1976; 71
FR 35517, June 21, 2006]
Sec. 650.5 Annual appeals performance plan.
No later than December 15 of each year, each State shall submit an
appeals performance plan showing how it will operate during the
following calendar year so as to achieve or maintain the issuance of at
least 60 percent of all first level benefit appeals decisions within 30
days of the date of appeal, and 80 percent within 45 days.
(Approved by the Office of Management and Budget under control number
1205-0132)
(Pub. L. No. 96-511)
[41 FR 6757, Feb. 13, 1976, as amended at 49 FR 18295, Apr. 30, 1984; 71
FR 35517, June 21, 2006]
PART 651_GENERAL PROVISIONS GOVERNING THE FEDERAL-STATE EMPLOYMENT
SERVICE SYSTEM
Sec. 651.10 Definitions of terms used in parts 651-658.
Administrator, Office of Workforce Investment (OWI Administrator)
means the chief official of the Office of Workforce Investment (OWI) or
the Administrator's designee.
Affirmative action means positive, result-oriented action imposed on
or assumed by an employer pursuant to legislation, court order, consent
decree, directive of a fair employment practice authority, government
contract, grant or loan, or voluntary affirmative action plan adopted
pursuant to the Affirmative Action Guidelines of the Equal Employment
Opportunity Commission to provide equal employment opportunities for
members of a specified group which for reasons of past custom,
historical practice, or other nonoccupationally valid purposes has been
discouraged from entering certain occupational fields.
[[Page 261]]
Agricultural worker means a worker, whose primary work experience
has been in farmwork in industries with a North American Industry
Classification System (NAICS) 111, 112, and 115 (excluding the following
codes: 1125 (under 112) and 1152 and 1153 (under 115)), whether alien or
citizen, who is legally allowed to work in the United States.
Applicant means a person who files an application for services with
a local office of a State agency, with outstationed staff or with an
outreach worker.
Application card means the basic local office record for an
applicant.
A Bona Fide Occupational Qualification (BFOQ) means that an
employment decision or request based on age, sex, national origin or
religion is based on a finding that such characteristic is necessary to
the individual's ability to perform the job in question. Since a BFOQ is
an exception to the general prohibition against discrimination on the
basis of age, sex, national origin or religion, it must be interpreted
narrowly in accordance with the Equal Employment Opportunity Commission
regulations set forth at 29 CFR parts 1604, 1605 and 1627.
Clearance means activities in the placement process involving joint
action of local offices in different labor market areas and/or States in
the location, selection and the job referral of an applicant.
Complaint means a representation made or referred to a State or
local JS office of a violation of the JS regulations and/or other
federal, State or local employment related law.
Complainant means the individual, employer, organization,
association, or other entity filing a complaint.
Day-haul means the assembly of workers at a pick-up point waiting to
be employed, transportation of them to farm employment, and the return
of the workers to the pick-up point on the same day. For the purposes of
this definition ``day-haul'' shall exclude transportation and return of
workers employed under regularly scheduled job orders such as corn
detasseling jobs for youth.
Decertification means the rescission by the Secretary of the year
end certification made under Section 7 of the Wagner-Peyser Act to the
Secretary of the Treasury that the State agency may receive funds
authorized by the Wagner-Peyser Act.
DOL means the Department of Labor.
Employment and Training Administration (ETA) means the component of
the Department of Labor containing the United States Employment Service
(USES).
Employer means a person, firm, corporation or other association or
organization (1) which currently has a location within the United States
to which U.S. workers may be referred for employment, and which proposes
to employ a worker at a place within the United States and (2) which has
an employer relationship with respect to employees under this subpart as
indicated by the fact that it hires, pays, fires, supervises and
otherwise controls the work of such employee. An association of
employers shall be considered an employer if it has all of the indicia
of an employer set forth in this definition. Such an association,
however, shall be considered as a joint employer with the employer
member if either shares in exercising one or more of the definitional
indicia.
Establishment means a public or private economic employing unit
generally at a single physical location which produces and/or sells
goods or services, for example, a mine, factory, store, farm orchard or
ranch. It is usually engaged in one, or predominantly one, type of
commerical or governmental activity. Each branch or subsidiary unit of a
large employer in a geographical area or community should be considered
an individual establishment, except that all such units in the same
physical location shall be considered a single establishment. A
component of an establishment which may not be located in the same
physical structure (such as the warehouse of a department store) should
also be considered as part of the parent establishment. For the purpose
of the ``seasonal farmworker'' definition, farm labor contractors and
crew leaders are not considered establishments; it is the organizations
to which they supply the workers that are the establishments.
[[Page 262]]
Farmwork means work performed for wages in agricultural production
or agricultural services North American Industry Classification System
(NAICS) 111, 112, and 115 (excluding the following codes: 1125 (under
112) and 1152 and 1153 (under 115)).
Farmworker, see Agricultural worker.
Full application means an application for an applicant who has
participated in an application interview and which includes the
applicant's personal characteristics, work history and an occupational
classification and DOT code.
Hearing Officer means a Department of Labor Administrative Law
Judge, designated to preside at DOL administrative hearings.
Identification card (applicant identification card) means a card
given to the applicant on which are recorded identifying information and
the dates of the applicant's visits to the local employment office.
Intrastate job order means a job order describing one or more hard-
to-fill job openings, which a local office uses to request recruitment
assistance from other local offices within the State.
JS regulations means the Federal regulations at 20 CFR parts 601-
604, 620, 621, and 651-658, and at 29 CFR parts 8, 26, and 75.
Job bank means a computer assisted system which provides listings of
current job openings in the area, on a regular basis, for distribution
to JS offices and to cooperating agencies.
Job development means the process of securing a job interview with a
public or private employer for a specific applicant for whom the local
office has no suitable opening on file.
Job information means information derived from data compiled in the
normal course of employment service activities from reports, job orders,
applications and the like.
Job opening means a single job opportunity for which the local
office has on file a request to select and refer on applicant or
applicants.
Job Information Service (JIS) means a unit or an area within a JS
local office where applicants primarily, on a self-service basis or with
minimum professional help, can obtain specific and general information
on where and how to get a job.
Job referral means (1) the act of bringing to the attention of an
employer an applicant or group of applicants who are available for
specific job openings and (2) the record of such referral. ``Job
referral'' means the same as ``referral to a job.''
Job Service (JS) means the nationwide system of public employment
offices, funded through the United States Employment Service (USES) as
grantee State agencies, and the various offices of the State agencies.
Labor market area means a geographic area consisting of a central
city (or cities) and the surrounding territory within a reasonable
commuting distance.
Labor Market Information (LMI) means that body of knowledge
pertaining to the socio-economic forces influencing the employment
process in specific labor market areas. These forces, which affect labor
demand-supply relationships and define the content of the LMI program,
include population and growth charcteristics, trends in industrial and
occupational structure, technological developments, shifts in consumer
demands, unionization, trade disputes, retirement practices, wage
levels, conditions of employment, training opportunities, job vacancies,
and job search information.
Local office manager means the JS official in charge of all JS
activities in a local office of a State agency.
LMI means labor market information.
Migrant farmworker is a seasonal farmworker who had to travel to do
the farmwork so that he/she was unable to return to his/her permanent
residence within the same day. Full-time students traveling in organized
groups rather than with their families are excluded.
Migrant food processing worker means a person who during the
preceding 12 months has worked at least an aggregate of 25 or more days
or parts of days in which some work was performed in food processing (as
classified in the North American Industry Classification System (NAICS)
311411, 311611, 311421 for food processing establishments), earned at
least half of his/her earned income from processing work
[[Page 263]]
and was not employed in food processing year round by the same employer,
provided that the food processing required travel such that the worker
was unable to return to his/her permanent residence in the same day.
Migrant food processing workers who are full-time students but who
travel in organized groups rather than with their families are excluded.
MSFW means a migrant farmworker, a migrant food processing worker,
or a seasonal farmworker.
Occupational Information Network (O*NET) means the online reference
database which contains detailed descriptions of U.S. occupations,
distinguishing characteristics, classification codes, and information on
tasks, knowledge, skills, abilities, and work activities as well as
information on interests, work styles, and work values.
O*NET-SOC means Standard Occupational Classification (SOC) titles
and codes are used by Federal statistical agencies to classify workers
into occupational categories for the purpose of collecting, calculating
and disseminating data. DOL uses O*NET-SOC titles and codes for the
purposes of reporting data on training, certifications, and placement in
employment by occupation.
Partial application means the application of an applicant who has
not participated in an application interview and which does not include
an occupational classification of DOT code. Partial applications
prepared for Migrants and Seasonal Farmworkers must include a signed
waiver for full services at that time in accordance with 20 CFR 653.103.
Placement means the hiring by a public or private employer of an
individual referred by the employment office for a job or an interview,
provided that the employment office completed all of the following
steps:
(a) Prepared a job order form prior to referral, except in the case
of a job development contact on behalf of a specific applicant;
(b) Made prior arrangements with the employer for the referral of an
individual or individuals;
(c) Referred an individual who had not been specifically designated
by the employer, except for referrals on agricultural job orders for a
specific crew leader or worker;
(d) Verified from a reliable source, preferably the employer, that
the individual had entered on a job; and
(e) Appropriately recorded the placement.
Program Budget Plan (PBP) means the annual planning document for the
SWA required by Sec. 8 of the Wagner-Peyser Act containing the SWA's
detailed planning, programming and budget for carrying out employment
security activities. For the purpose of JS regulations, this definition
shall be restricted to the employment service portion of the PBP.
Public housing means housing operated by or on behalf of any public
agency.
RA; see Regional Administrator.
Regional Administrator, Employment and Training Administration (RA)
means the chief DOL Employment and Training Administration (ETA)
official in each DOL regional office.
Respondent means the employer or State agency (including a State
agency official) who is alleged to have committed the violation
described in a complaint.
Rural area means an area which is not included in the urban area of
a Standard Metropolitan Statistical Area and which has a population of
less than 10,000.
Seasonal farmworker means a person who during the preceding 12
months worked at least an aggregate of 25 or more days or parts of days
in which some work was performed in farmwork, earned at least half of
his/her earned income from farmwork, and was not employed in farmwork
year round by the same employer. For the purposes of this definition
only, a farm labor contractor is not considered an employer. Non-migrant
individuals who are full-time students are excluded.
Secretary means the Secretary of the U.S. Department of Labor or the
Secretary's designee.
Significant MSFW States shall be those States designated annually by
ETA and shall include the twenty (20) States with the highest number of
MSFW applicants.
Significant MSFW local offices shall be those designated annually by
ETA and
[[Page 264]]
include those local offices where MSFWs account for 10% or more of
annual applicants and those local offices which the Administrator
determines should be included due to special circumstances such as an
estimated large number of MSFWs in the local office service area. In no
event shall the number of significant MSFW local offices be less than
100 offices on a nationwide basis.
Significant bilingual MSFW local offices shall be those designated
annually by ETA and include those significant MSFW offices where 10% or
more of MSFW applicants are estimated to require service provisions in
Spanish unless the Administrator determines other local offices also
should be included due to special circumstances.
Solicitor means the chief legal officer of the U.S. Department of
Labor or the Solicitor's designee.
Standard Metropolitan Statistical Area (SMSA) means a metropolitan
area designated by the Bureau of Census which contains (1) at least one
city of 50,000 inhabitants or more, or (2) twin cities with a combined
population of at least 50,000.
State shall include the fifty States, the District of Columbia,
Guam, Puerto Rico, and the Virgin Islands.
State Administrator means the chief official of the State Employment
Security Agency (SESA).
State agency means the State job service agency designated under
section 4 of the Wagner-Peyser Act to cooperate with the USES in the
operation of the job service system.
State hearing official means a State official designated to preside
at State administrative hearings convened to resolve JS-related
complaints pursuant to subpart E of part 658 of this chapter.
State Workforce Agency (SWA), formerly State Employment Security
Agency or SESA, means the State agency which, under the State
Administrator, is designated by the Governor to administer Wagner-Peyser
Act funded employment and workforce information services (State Agency)
and the State unemployment compensation program.
Supportive services means services other than employment or training
that are needed to enable individuals to obtain or retain employment, or
to participate in employment and training programs.
Tests means a standardized method of measuring an individual's
possession of, interest in, or ability to acquire, job skills and
knowledge. Use of tests by employment service staff must be in
accordance with the provisions of:
(1) 41 CFR part 60-3, Uniform Guidelines on Employee Selection
Procedures;
(2) 29 CFR part 1627, Records To Be Made or Kept Relating to Age;
Notices To Be Posted; Administrative Exemptions; and
(3) The Department of Labor's regulations on Nondiscrimination on
the Basis of Handicap in Programs and Activities Receiving or Benefiting
from Federal Financial Assistance, which have been published as 29 CFR
part 32 at 45 FR 66706 (Oct. 7, 1980).
Training means a planned, systematic sequence of instruction or
other learning experience on an individual or group basis under
competent supervision, which is designed to impart skills, knowledge, or
abilities to prepare individuals for employment.
Transaction means a single ES activity performed on behalf of an
individual seeking assistance and/or the result of such an activity,
e.g., applicant registration referral to a job, referral to a supportive
service, counseling interview, testing, job development, job placement,
enrollment in training, and inactivation of an applicant registration.
United States Employment Service (USES) means the component of the
Employment and Training Administration of DOL which was established
under the Wagner-Peyser Act of 1933 to promote and develop a national
system of public job service offices.
Vocational Plan means a plan developed jointly by a counselor or
counselor trainee and the applicant which describes: (1) The applicant's
short-range and long-range occupational goals and (2) the actions to be
taken to place the plan into effect.
(Wagner-Peyser Act of 1933, as amended, 29 U.S.C. 49 et seq.; 5 U.S.C.
301; and 38 U.S.C. chapters 41 and 42)
[45 FR 39457, June 10, 1980. Redesignated and amended at 7767, 7768,
Jan. 23, 1981; 71 FR 35517, June 21, 2006]
[[Page 265]]
PART 652_ESTABLISHMENT AND FUNCTIONING OF STATE EMPLOYMENT SERVICES
Subpart A_Employment Service Operations
Sec.
652.1 Introduction and definitions.
652.2 Scope and purpose of the employment service system.
652.3 Basic labor exchange system.
652.4 Allotment of funds and grant agreement.
652.5 Services authorized.
652.6-652.7 [Reserved]
652.8 Administrative provisions.
652.9 Labor disputes.
Subpart B_Services for Veterans
652.100 Services for veterans.
Subpart C_Wagner-Peyser Act Services in a One-Stop Delivery System
Environment
652.200 What is the purpose of this subpart?
652.201 What is the role of the State agency in the One-Stop delivery
system?
652.202 May local Employment Service Offices exist outside of the One-
Stop service delivery system?
652.203 Who is responsible for funds authorized under the Act in the
workforce investment system?
652.204 Must funds authorized under section 7(b) of the Act (the
Governor's reserve) flow through the One-Stop delivery system?
652.205 May funds authorized under the Act be used to supplement funding
for labor exchange programs authorized under separate
legislation?
652.206 May a State use funds authorized under the Act to provide ``core
services'' and ``intensive services'' as defined in WIA?
652.207 How does a State meet the requirement for universal access to
services provided under the Act?
652.208 How are core services and intensive services related to the
methods of service delivery described in Sec. 652.207(b)(2)?
652.209 What are the requirements under the Act for providing
reemployment services and other activities to referred UI
claimants?
652.210 What are the Act's requirements for administration of the work
test and assistance to UI claimants?
652.211 What are State planning requirements under the Act?
652.212 When should a State submit modifications to the five-year plan?
652.213 What information must a State include when the plan is modified?
652.214 How often may a State submit modifications to the plan?
652.215 Do any provisions in WIA change the requirement that State
merit-staff employees must deliver services provided under the
Act?
652.216 May the One-Stop operator provide guidance to State merit-staff
employees in accordance with the Act?
Authority: 29 U.S.C. 49k; 38 U.S.C. chapters 41 and 42.
Subpart A_Employment Service Operations
Source: 48 FR 50665, Nov. 2, 1983, unless otherwise noted.
Sec. 652.1 Introduction and definitions.
(a) These regulations implement the provisions of the Wagner-Peyser
Act, known hereafter as the Act, as amended by the Workforce Investment
Act of 1998 (WIA). Congress intended that the States exercise broad
authority in implementing provisions of the Act.
(b) Except as otherwise provided the definitions contained in
section 2 of the Act apply to these regulations.
Act means the Wagner-Peyser Act (29 U.S.C. 49 et seq.).
Department means the United States Department of Labor (DOL),
including its agencies and organizational units.
Governor means the chief executive of any State.
JTPA means the Job Training Partnership Act of 1982 (29 U.S.C. 1501
et seq.).
State means any of the several States, the District of Columbia, the
Commonwealth of Puerto Rico, the Virgin Islands, and Guam.
State Agency means the State governmental unit designated under
section 4 of the Act to cooperate with the Secretary in the operation of
the public employment service system.
State Workforce Investment Board (State Board) means the entity
within a State appointed by the Governor under section 111 of the
Workforce Investment Act.
WIA means the Workforce Investment Act of 1998 (29 U.S.C. 2801 et
seq.).
[48 FR 50665, Nov. 2, 1983, as amended at 64 FR 18761, Apr. 15, 1999; 65
FR 49462, Aug. 11, 2000]
[[Page 266]]
Sec. 652.2 Scope and purpose of the employment service system.
The basic purpose of the employment service system is to improve the
functioning of the nation's labor markets by bringing together
individuals who are seeking employment and employers who are seeking
workers.
Sec. 652.3 Basic labor exchange system.
At a minimum, each State shall administer a labor exchange system
which has the capacity:
(a) To assist jobseekers in finding employment;
(b) To assist employers in filling jobs;
(c) To facilitate the match between jobseekers and employers;
(d) To participate in a system for clearing labor between the
States, including the use of standardized classification systems issued
by the Secretary, under section 15 of the Act; and.
(e) To meet the work test requirements of the State unemployment
compensation system.
[48 FR 50665, Nov. 2, 1983, as amended at 64 FR 18762, Apr. 15, 1999]
Sec. 652.4 Allotment of funds and grant agreement.
(a) Allotments. The Secretary shall provide planning estimates in
accordance with section 6(b)(5) of the Act. Within 30 days of receipt of
planning estimates from the Secretary, the State shall make public the
substate resource distributions, and describe the process and schedule
under which these resources will be issued, planned and committed. This
notification shall include a description of the procedures by which the
public may review and comment on the substate distributions, including a
process by which the State will resolve any complaints.
(b) Grant Agreement. To establish a continuing relationship under
the Act, the Governor and the Secretary shall sign a Governor/Secretary
Agreement, including a statement assuring that the State shall comply
with the Act and all applicable rules and regulations. Consistent with
this Agreement and section 6 of the Act, State allotments will be
obligated through a Notification of Obligation.
(Approved by the Office of Management and Budget under control number
1205-0209)
Sec. 652.5 Services authorized.
The sums allotted to each State under section 6 of the Act must be
expended consistent with an approved plan under 20 CFR 661.220 through
661.240 and Sec. Sec. 652.211 through 652.214. At a minimum, each State
shall provide the basic labor exchange elements at Sec. 652.3.
[65 FR 49462, Aug. 11, 2000]
Sec. Sec. 652.6-652.7 [Reserved]
Sec. 652.8 Administrative provisions.
(a) Administrative requirements. The Employment Security Manual
shall not be applicable to funds appropriated under the Wagner-Peyser
Act. Except as provided for in paragraph (f) of this section,
administrative requirements and cost principles applicable to grants
under this part 652 are as specified in 29 CFR part 97, Uniform
Administrative Requirements for Grants and Cooperative Agreements to
State and Local Governments, and OMB Circular A-87 (Revised).
(b) Management systems, reporting and recordkeeping. (1) The State
shall ensure that financial systems provide fiscal control and
accounting procedures sufficient to permit preparation of required
reports, and the tracing of funds to a level of expenditure adequate to
establish that funds have not been expended in violation of the
restrictions on the use of such funds (section 10(a)).
(2) The financial management system and the program information
system shall provide federally required records and reports that are
uniform in definition, accessible to authorized Federal and State staff,
and verifiable for monitoring, reporting, audit and evaluation purposes
(section 10(c)).
(c) Reports required. (1) Each State shall make reports pursuant to
instructions issued by the Secretary and in such format as the Secretary
shall prescribe.
(2) The Secretary is authorized to monitor and investigate pursuant
to section 10 of the Act.
[[Page 267]]
(d) Special administrative and cost provisions. (1) Neither the
Department nor the State is a guarantor of the accuracy or truthfulness
of information obtained from employers or applicants in the process of
operating a labor exchange activity.
(2) Prior approval authority, as described in various sections of 29
CFR part 97, Uniform Administrative Requirements for Grants and
Cooperative Agreements to State and Local Governments, and OMB Circular
A-87 (Revised), is delegated to the State except that the Secretary
reserves the right to require transfer of title on nonexpendable
Automated Data Processing Equipment (ADPE), in accordance with
provisions contained in 29 CFR 97.32(g). The Secretary reserves the
right to exercise prior approval authority in other areas, after
providing advance notice to the State.
(3) Application for financial assistance and modification
requirements shall be as specified under this part.
(4) Cost of promotional and informational activities consistent with
the provisions of the Act, describing services offered by employment
security agencies, job openings, labor market information, and similar
items are allowable.
(5) Each State shall retain basic documents for the minimum period
specified below:
(i) Work Application: One year.
(ii) Job Order: One Year.
(6) Costs of employer contributions and expenses incurred for State
agency fringe benefit plans that do not meet the requirements in OMB
Circular A-87 (Revised) are allowable, provided that:
(i) For retirement plans, on behalf of individuals employed before
the effective date of this part, the plan is authorized by State law and
previously approved by the Secretary; the plan is insured by a private
insurance carrier which is licensed to operate this type of plan; and
any dividends or similar credits due to participation in the plan are
credited against the next premium falling due under the contract;
(ii) For retirement plans on behalf of individuals employed after
the effective date of this part, and for fringe benefit plans other than
retirement, the Secretary grants a time extension to cover an interim
period if State legislative action is required for such employees to be
covered by plans which meet the requirements of OMB Circular A-87
(Revised). During this interim period, State agency employees may be
enrolled in plans open to State agency employees only. No such extension
may continue beyond the 60th day following the completion of the next
full session of the State legislature which begins after the effective
date of this part;
(iii) For fringe benefit plans other than retirement, the Secretary
grants a time extension which may continue until such time as they are
comparable in cost to those fringe benefit plans available to other
similarly employed employees of the State on the condition that there
are no benefit improvements. The Secretary may grant this time extension
if the State agency can demonstrate that the extension is necessary to
prevent loss of benefits to current States agency employees, retirees
and/or their fringe benefit plan beneficiaries, or that it is necessary
to avoid unreasonable expenditures on behalf of the employee or employer
to maintain such fringe benefits for current employees and retirees. At
such time as the cost of these fringe benefit plans becomes equitable
with those available to other similarly employed State employees, the
time extension will cease and the requirements of OMB Circular A-87
(Revised) will apply;
(iv) Requests for time extensions under this section will include an
opinion of the State Attorney General, that either legislative action is
required to accomplish compliance with OMB Circular A-87 (Revised) or,
for (d)(6)(iii) of this section that such compliance would result in
either loss of current benefits to State agency employees and retirees
or unreasonable expenditures to maintain these benefits. Such requests
will be filed with the Secretary no later than 30 days after the
effective date of this part; and
(v) Time extensions granted relative to (d)(6)(iii) of this section
require a signed statement by the State agency Administrator, that no
improvements have been made to fringe benefits under the extension and
that the
[[Page 268]]
plan(s) is (are) not consistent with those available to other similarly
employed State employees, for each year of the extension. Documentation
supporting the affidavit shall be maintained for audit purposes.
(7) Payments from the State's Wagner-Peyser allotment made into a
State's account in the Unemployment Trust Fund for the purpose of
reducing charges against Reed Act funds (section 903(c) of the Social
Security Act, as amended (42 U.S.C. 1103(c)) are allowable costs,
provided that:
(i) The charges against Reed Act funds were for amounts
appropriated, obligated, and expended for the acquisition of automatic
data processing installations or for the acquisition or major renovation
of State owned office building; and
(ii) With respect to each acquisition of improvement of property
pursuant to paragraph (d)(7)(i) of this section, the payments are
accounted for in the State's records as credits against equivalent
amounts of Reed Act Funds used for administrative expenditures.
(e) Disclosure of information. (1) The State shall assure the proper
disclosure of information pursuant to section 3(b) of the Act.
(2) The information specified in section 3(b) and other sections of
the Act, shall also be provided to officers or any employee of the
Federal Government of a State government lawfully charged with
administration of unemployment compensation laws, employment service
activities under the Act or other related legislation, but only for
purposes reasonably necessary for the proper administration of such
laws.
(f) Audits, (1) At least once every 2 years, the State shall prepare
or have prepared an independent financial and compliance audit covering
each full program year not covered in the previous audit, except that
funds expended pursuant to section 7(b) of the Act shall be audited
annually.
(2) The Comptroller General and the Inspector General of the
Department shall have the authority to conduct audits, evaluations or
investigations necessary to meet their responsibilities under sections
9(b)(1) and 9(b)(2), respectively, of the Act.
(3) The audit, conducted pursuant to paragraph (f)(1) or (f)(2) of
this section, shall be submitted to the Secretary who shall make an
initial determination. Such determinations shall be based on the
requirements of the Act, regulations, and State plan.
(i) The initial determination shall identify the audit findings,
state the Secretary's proposed determination of the allowability of
questioned costs and activities, and provide for informal resolution of
those matters in controversy contained in the initial determination.
(ii) The Secretary shall not impose sanctions and corrective actions
without first providing the State with an opportunity to present
documentation or arguments to resolve informally those matters in
controversy contained in the Secretary's initial determination. The
informal resolution period shall be at least 60 days from issuance of
the initial determination and no more that 170 days from the receipt by
the Secretary of the final approved audit report. If the matters are
resolved informally, the Secretary shall issue a final determination
pursuant to paragraph (f)(3)(iii) of this section which notifies the
parties in writing of the nature of the resolution and may close the
file.
(iii) If the matter is not resolved informally, the Secretary shall
provide each party with a final written determination by certified mail,
return receipt requested. In the case of audits, the final determination
shall be issued not later than 180 days after the receipt by the
Secretary of the final approved audit report. The final determination
shall:
(A) Indicate that efforts to resolve informally matters contained in
the initial determination have been unsuccessful;
(B) List those matters upon which the parties continue to disagree;
(C) List any modifications to the factual findings and conclusions
set forth in the initial determination;
(D) Establish a debt if appropriate;
(E) Determine liability, method of restitution of funds and
sanctions;
(F) Offer an opportunity for a hearing in accordance with 20 CFR
658.707
[[Page 269]]
through 658.711 in the case of a final determination imposing a sanction
or corrective action; and
(G) Constitute final agency action unless a hearing is requested.
(g) Sanctions for violation of the Act. (1) The Secretary may impose
appropriate sanctions and corrective actions for violation of the Act,
regulations, or State plan, including the following:
(i) Requiring repayment, for debts owed the Government under the
grant, from non-Federal funds;
(ii) Offsetting debts arising from the misexpenditure of grant
funds, against amounts to which the State is or may be entitled under
the Act, provided that debts arising from gross negligence or willful
misuse of funds shall not be offset against future grants. When the
Secretary reduces amounts allotted to the State by the amount of the
misexpenditure, the debt shall be fully satisfied;
(iii) Determining the amount of Federal cash maintained by the State
or a subrecipient in excess of reasonable grant needs, establishing a
debt for the amount of such excessive cash, and charging interest on
that debt;
(iv) Imposing other appropriate sanctions or corrective actions,
except where specifically prohibited by the Act or regulations.
(2) To impose a sanction or corrective action, the Secretary shall
utilize the initial and final determination procedures outlined in
(f)(3) of this section.
(h) Other violations. Violations or alleged violations of the Act,
regulations, or grant terms and conditions except those pertaining to
audits or discrimination shall be determined and handled in accordance
with 20 CFR part 658, subpart H.
(i) Fraud and abuse. Any persons having knowledge of fraud, criminal
activity or other abuse shall report such information directly and
immediately to the Secretary. Similarly, all complaints involving such
matters should also be reported to the Secretary directly and
immediately.
(j) Nondiscrimination and affirmative action requirements. States
shall:
(1) Assure that no individual be excluded from participation in,
denied the benefits of, subjected to discrimination under, or denied
employment in the administration or in connection with any services or
activities authorized under the Act in violation of any applicable
nondiscrimination law, including laws prohibiting discrimination on the
basis of age, race, sex, color, religion, national origin, disability,
political affiliation or belief. All complaints alleging discrimination
shall be filed and processed according to the procedures in the
applicable DOL nondiscrimination regulations.
(2) Assure that discriminatory job orders will not be accepted,
except where the stated requirement is a bona fide occupational
qualification (BFOQ). See, generally, 42 U.S.C. 2000(e)-2(e), 29 CFR
parts 1604, 1606, 1625.
(3) Assure that employers' valid affirmative action requests will be
accepted and a significant number of qualified applicants from the
target group(s) will be included to enable the employer to meet its
affirmative action obligations.
(4) Assure that employment testing programs will comply with 41 CFR
part 60-3 and 29 CFR part 32 and 29 CFR 1627.3(b)(iv).
(5) Nondiscrimination and equal opportunity requirements and
procedures, including complaint processing and compliance reviews, will
be governed by the applicable DOL nondiscrimination regulations.
[48 FR 50665, Nov. 2, 1983, as amended at 64 FR 18762, Apr. 15, 1999; 65
FR 49462, Aug. 11, 2000]
Sec. 652.9 Labor disputes.
(a) State agencies shall make no job referral on job orders which
will aid directly or indirectly in the filling of a job opening which is
vacant because the former occupant is on strike, or is being locked out
in the course of a labor dispute, or the filling of which is otherwise
an issue in a labor dispute involving a work stoppage.
(b) Written notification shall be provided to all applicants
referred to jobs not at issue in the labor dispute that a labor dispute
exists in the employing establishment and that the job to which the
applicant is being referred is not at issue in the dispute.
(c) When a job order is received from an employer reportedly
involved in a
[[Page 270]]
labor dispute involving a work stoppage, State agencies shall:
(1) Verify the existence of the labor dispute and determine its
significance with respect to each vacancy involved in the job order; and
(2) Notify all potentially affected staff concerning the labor
dispute.
(d) State agencies shall resume full referral services when they
have been notified of, and verified with the employer and workers'
representative(s), that the labor dispute has been terminated.
(e) State agencies shall notify the regional office in writing of
the existence of labor disputes which:
(1) Result in a work stoppage at an establishment involving a
significant number of workers; or
(2) Involve multi-establishment employers with other establishments
outside the reporting State.
Subpart B_Services for Veterans
Sec. 652.100 Services for veterans.
Services for veterans are administered by the Office of the
Assistant Secretary for Veterans' Employment and Training (OASVET).
OASVET's general regulations are located in chapter IX of this title.
[54 FR 39354, Sept. 26, 1989]
Subpart C_Wagner-Peyser Act Services in a One-Stop Delivery System
Environment
Source: 65 FR 49462, Aug. 11, 2000, unless otherwise noted.
Sec. 652.200 What is the purpose of this subpart?
(a) This subpart provides guidance to States to implement the
services provided under the Act, as amended by WIA, in a One-Stop
delivery system environment.
(b) Except as otherwise provided, the definitions contained at
subpart A of this part and section 2 of the Act apply to this subpart.
Sec. 652.201 What is the role of the State agency in the One-Stop
delivery system?
(a) The role of the State agency in the One-Stop delivery system is
to ensure the delivery of services authorized under section 7(a) of the
Act. The State agency is a required One-Stop partner in each local One-
Stop delivery system and is subject to the provisions relating to such
partners that are described at 20 CFR part 662.
(b) Consistent with those provisions, the State agency must:
(1) Participate in the One-Stop delivery system in accordance with
section 7(e) of the Act;
(2) Be represented on the Workforce Investment Boards that oversee
the local and State One-Stop delivery system and be a party to the
Memorandum of Understanding, described at 20 CFR 662.300, addressing the
operation of the One-Stop delivery system; and
(3) Provide these services as part of the One-Stop delivery system.
Sec. 652.202 May local Employment Service Offices exist outside of the
One-Stop service delivery system?
(a) No, local Employment Service Offices may not exist outside of
the One-Stop service delivery system.
(b) However, local Employment Service Offices may operate as
affiliated sites, or through electronically or technologically linked
access points as part of the One-Stop delivery system, provided the
following conditions are met:
(1) All labor exchange services are delivered as a part of the local
One-Stop delivery system in accordance with section 7(e) of the Act and
Sec. 652.207(b);
(2) The services described in paragraph (b)(1) of this section are
available in at least one comprehensive physical center, as specified in
20 CFR 662.100, from which job seekers and employers can access them;
and
(3) The Memorandum of Understanding between the State agency local
One-Stop partner and the Local Workforce Investment Board meets the
requirements of 20 CFR 662.300.
[[Page 271]]
Sec. 652.203 Who is responsible for funds authorized under the Act in
the workforce investment system?
The State agency retains responsibility for all funds authorized
under the Act, including those funds authorized under section 7(a)
required for providing the services and activities delivered as part of
the One-Stop delivery system.
Sec. 652.204 Must funds authorized under section 7(b) of the Act (the
Governor's reserve) flow through the One-Stop delivery system?
No, these funds are reserved for use by the Governor for the three
categories of activities specified in section 7(b) of the Act. However,
these funds may flow through the One-Stop delivery system.
Sec. 652.205 May funds authorized under the Act be used to supplement
funding for labor exchange programs authorized under separate
legislation?
(a) Section 7(c) of the Act enables States to use funds authorized
under sections 7(a) or 7(b) of the Act to supplement funding of any
workforce activity carried out under WIA.
(b) Funds authorized under the Act may be used under section 7(c) to
provide additional funding to other activities authorized under WIA if:
(1) The activity meets the requirements of the Act, and its own
requirements;
(2) The activity serves the same individuals as are served under the
Act;
(3) The activity provides services that are coordinated with
services under the Act; and
(4) The funds supplement, rather than supplant, funds provided from
non-Federal sources.
Sec. 652.206 May a State use funds authorized under the Act to provide
``core services'' and ``intensive services'' as defined in
WIA?
Yes, funds authorized under section 7(a) of the Act must be used to
provide core services, as defined at section 134(d)(2) of WIA and
discussed at 20 CFR 663.150, and may be used to provide intensive
services as defined at WIA section 134(d)(3)(C) and discussed at 20 CFR
663.200. Funds authorized under section 7(b) of the Act may be used to
provide core or intensive services. Core and intensive services must be
provided consistent with the requirements of the Act.
Sec. 652.207 How does a State meet the requirement for universal
access to services provided under the Act?
(a) A State has discretion in how it meets the requirement for
universal access to services provided under the Act. In exercising this
discretion, a State must meet the Act's requirements.
(b) These requirements are:
(1) Labor exchange services must be available to all employers and
job seekers, including unemployment insurance (UI) claimants, veterans,
migrant and seasonal farmworkers, and individuals with disabilities;
(2) The State must have the capacity to deliver labor exchange
services to employers and job seekers, as described in the Act, on a
Statewide basis through:
(i) Self-service;
(ii) Facilitated self-help service; and
(iii) Staff-assisted service;
(3) In each local workforce investment area, in at least one
comprehensive physical center, staff funded under the Act must provide
core and applicable intensive services including staff-assisted labor
exchange services; and
(4) Those labor exchange services provided under the Act in a local
workforce investment area must be described in the Memorandum of
Understanding (MOU).
Sec. 652.208 How are core services and intensive services related to
the methods of service delivery described in Sec.
652.207(b)(2)?
Core services and intensive services may be delivered through any of
the applicable three methods of service delivery described in Sec.
652.207(b)(2). These methods are:
(a) Self-service;
(b) Facilitated self-help service; and
(c) Staff-assisted service.
[[Page 272]]
Sec. 652.209 What are the requirements under the Act for providing
reemployment services and other activities to referred UI
claimants?
(a) In accordance with section 3(c)(3) of the Act, the State agency,
as part of the One-Stop delivery system, must provide reemployment
services to UI claimants for whom such services are required as a
condition for receipt of UI benefits. Services must be provided to the
extent that funds are available and must be appropriate to the needs of
UI claimants who are referred to reemployment services under any Federal
or State UI law.
(b) The State agency must also provide other activities, including:
(1) Coordination of labor exchange services with the provision of UI
eligibility services as required by section 5(b)(2) of the Act;
(2) Administration of the work test and provision of job finding and
placement services as required by section 7(a)(3)(F) of the Act.
Sec. 652.210 What are the Act's requirements for administration of the
work test and assistance to UI claimants?
(a) State UI law or rules establish the requirements under which UI
claimants must register and search for work in order to fulfill the UI
work test requirements.
(b) Staff funded under the Act must assure that:
(1) UI claimants receive the full range of labor exchange services
available under the Act that are necessary and appropriate to facilitate
their earliest return to work;
(2) UI claimants requiring assistance in seeking work receive the
necessary guidance and counseling to ensure they make a meaningful and
realistic work search; and
(3) UI program staff receive information about UI claimants' ability
or availability for work, or the suitability of work offered to them.
Sec. 652.211 What are State planning requirements under the Act?
The State agency designated to administer funds authorized under the
Act must prepare for submission by the Governor, the portion of the
five-year State Workforce Investment Plan describing the delivery of
services provided under the Act in accordance with WIA regulations at 20
CFR 661.220. The State Plan must contain a detailed description of
services that will be provided under the Act, which are adequate and
reasonably appropriate for carrying out the provisions of the Act,
including the requirements of section 8(b) of the Act.
Sec. 652.212 When should a State submit modifications to the five-year
plan?
(a) A State may submit modifications to the five-year plan as
necessary during the five-year period, and must do so in accordance with
the same collaboration, notification, and other requirements that apply
to the original plan. Modifications are likely to be needed to keep the
strategic plan a viable and living document over its five-year life.
(b) That portion of the plan addressing the Act must be updated to
reflect any reorganization of the State agency designated to deliver
services under the Act, any change in service delivery strategy, any
change in levels of performance when performance goals are not met, or
any change in services delivered by State merit-staff employees.
Sec. 652.213 What information must a State include when the plan is
modified?
A State must follow the instructions for modifying the strategic
five-year plan in 20 CFR 661.230.
Sec. 652.214 How often may a State submit modifications to the plan?
A State may modify its plan, as often as needed, as changes occur in
Federal or State law or policies, Statewide vision or strategy, or if
changes in economic conditions occur.
Sec. 652.215 Do any provisions in WIA change the requirement that
State merit-staff employees must deliver services provided
under the Act?
No, the Secretary requires that labor exchange services provided
under the authority of the Act, including services to veterans, be
provided by State merit-staff employees. This interpretation is
authorized by and consistent with the provisions in sections 3(a) and
[[Page 273]]
5(b) of the Act and the Intergovernmental Personnel Act (42 U.S.C. 4701
et seq.). The Secretary has and has exercised the legal authority under
section 3(a) of the Act to set additional staffing standards and
requirements and to conduct demonstrations to ensure the effective
delivery of services provided under the Act. No additional
demonstrations will be authorized.
Sec. 652.216 May the One-Stop operator provide guidance to State
merit-staff employees in accordance with the Act?
Yes, the One-Stop delivery system envisions a partnership in which
Wagner-Peyser Act labor exchange services are coordinated with other
activities provided by other partners in a One-Stop setting. As part of
the local Memorandum of Understanding, the State agency, as a One-Stop
partner, may agree to have staff receive guidance from the One-Stop
operator regarding the provision of labor exchange services. Personnel
matters, including compensation, personnel actions, terms and conditions
of employment, performance appraisals, and accountability of State
merit-staff employees funded under the Act, remain under the authority
of the State agency. The guidance given to employees must be consistent
with the provisions of the Act, the local Memorandum of Understanding,
and applicable collective bargaining agreements.
PART 653_SERVICES OF THE EMPLOYMENT SERVICE SYSTEM
Subpart A--Basic Services of the Employment Service System [Reserved]
Subpart B_Services for Migrant and Seasonal Farmworkers (MSFWs)
Sec.
653.100 Purpose and scope of subpart.
653.101 Provision of services to migrant and seasonal farmworkers
(MSFWs).
653.102 Job information.
653.103 MSFW job applications.
653.104 Services to MSFW family members, farm labor contractors, and
crew members.
653.105 Job applications at day-haul facilities.
653.106 JS day-haul responsibilities.
653.107 Outreach.
653.108 State agency self-monitoring.
653.109 Data collection.
653.110 Disclosure of data.
653.111 State agency staffing requirements.
653.112 State agency program budget plans.
653.113 Processing apparent violations.
Subpart C--Services for Veterans [Reserved]
Subpart D--Services to the Handicapped [Reserved]
Subpart E--Support Services [Reserved]
Subpart F_Agricultural Clearance Order Activity
653.500 Purpose and scope of subpart.
653.501 Requirements for accepting and processing clearance orders.
653.502 Changes in crop and recruitment situations.
653.503 Field checks.
Authority: 38 U.S.C. chapters 41 and 42; Wagner-Peyser Act, as
amended, 29 U.S.C. 49 et seq.; sec. 104 of the Emergency Jobs and
Unemployment Assistance Act of 1974 Pub. L. 93-567, 88 Stat. 1845,
unless otherwise noted.
Subpart A--Basic Services of the Employment Service System [Reserved]
Subpart B_Services for Migrant and Seasonal Farmworkers (MSFWs)
Source: 45 FR 39459, June 10, 1980, unless otherwise noted.
Sec. 653.100 Purpose and scope of subpart.
This subpart sets forth the principal regulations of the United
States Employment Service (USES) for counseling, testing, and job and
training referral services for migrant and seasonal farmworkers (MSFWs)
on a basis which is qualitatively equivalent and quantitatively
proportionate to services provided to non-MSFWs. It also contains
requirements that State agencies establish a system to monitor their own
compliance with USES regulations governing services to MSFWs, including
the regulations under this subpart. Special services to ensure that
MSFWs receive the full range of employment
[[Page 274]]
related services are established under this subpart.
Sec. 653.101 Provision of services to migrant and seasonal farmworkers
(MSFWs).
(a) Each State agency and each local office shall offer to migrant
and seasonal farmworkers (MSFWs) the full range of employment services,
benefits and protections, including the full range of counseling,
testing, and job and training referral services as are provided to non-
MSFWs. In providing such services, the State agency shall consider and
be sensitive to the preferences, needs, and skills of individual MSFWs
and the availability of job and training opportunities.
(b) Each State agency shall assure that, in a local area, the same
local offices, including itinerant and satellite offices, but exclusive
of day-haul operations, offer services to both non-MSFWs and MSFWs.
Separate farm labor service local offices, which offer only farmwork to
agricultural workers while another local office serving the same
geographical area offers other JS services to other applicants, are
prohibited so that all applicants receive employment services on the
same basis.
Sec. 653.102 Job information.
All State agencies shall make job order information conspicuous and
available to MSFWs in all local offices. This information shall include
Job Bank information in local offices where it is available. Such
information shall be made available either by computer terminal,
microfiche, hard copy, or other equally effective means. Each
significant MSFW local office shall provide adequate staff assistance to
each MSFW to use the job order information effectively. In those offices
designated as significant MSFW bilingual offices, such assistance shall
be provided to MSFWs in Spanish and English, wherever requested or
necessary, during any period of substantial MSFW activity.
Sec. 653.103 MSFW job applications.
(a) Every local office shall determine whether or not applicants are
MSFWs as defined at Sec. 651.10 of this chapter.
(b) Except as provided in Sec. 653.105, when an MSFW applies for JS
services at a local office or is contacted by an Outreach worker, the
services available through the JS shall be explained to the MSFW. In
local offices which have been designated as significant MSFW bilingual
offices by ETA, this explanation shall be made in Spanish, if necessary
or requested during any period of substantial MSFW activity. Other local
offices shall provide bilingual explanations wherever feasible.
(c) The local office staff member shall provide the MSFW a list of
those services. The list shall be written in English and Spanish and
shall specify those services which are available after completion of a
full application and those services which are available after completion
of a partial application. The JS staff member shall explain to each MSFW
the advantages of completing a full application.
Applications shall be reviewed periodically by the local office manager
or a member of his/her staff to ensure their accuracy and quality.
Applications and the application-taking process shall also be reviewed
during State and Federal onsite reviews by the State and Regional MSFW
Monitor Advocates and/or review staff, who shall check overall accuracy
and quality, and offer technical advice on corrections or improvements.
(d) If the MSFW wishes to complete a full application, the staff
shall provide all assistance necessary to complete the application and
shall ensure that the form includes complete information. It shall
include, to the extent possible, the significant history of the MSFW's
prior employment, training and educational background and a statement of
any desired employment and any training needs in order to permit a
thorough assessment of the applicant's skills, abilities and
preferences. All applicable items shall be completed according to the
ETA instructions for preparation of the application card (ES-511).
Additional Occupational Informational Network (O*NET) codes or keywords
shall be assigned, where appropriate, based on the MSFW's work history,
training, and skills, knowledges, and abilities. Secondary cards shall
be completed and
[[Page 275]]
separately filed when keywords are not used. In extremely small local
offices where the limited applicant load and file size does not require
completion of secondary cards, additional O*NET-SOC codes shall be noted
on the primary application card.
(e) If an MSFW wishes any JS service, and does not wish or is unable
to file a full application, the interviewer shall try to obtain as much
information as possible for a partial application. The interviewer shall
enter the information on the partial application. The interviewer shall
offer to refer the applicant to any available jobs for which the MSFW
may be qualified, and any JS services permitted by the limited
information available. He/she shall advise the MSFW that he/she may file
a full application at any time.
(f) Partial applications shall be completed according to ETA
instructions.
(g) Partial applications for MSFWs shall be filed in accordance with
local office procedures for filing other partial applications.
(h) To minimize the need for additional applications in other
offices, States shall issue JS cards to MSFWs at the initial visit under
the following conditions:
(1) When automated data retrieval systems are available in the
State. In this instance, JS staff shall advise the MSFW that the JS card
may be presented at any other JS office in the State and that services
will be provided without completion of an additional application unless
the services requested require additional information for adequate
service delivery.
(2) When an MSFW is referred on an interstate or intrastate order.
In this instance, when it is known to the order-holding local office
(through the presentation of an JS card or otherwise) that the MSFW has
completed a full application or partial application in the applicant
holding office or elsewhere, an additional application shall not be
taken by the order-holding office unless the MSFW requests JS services
in addition to referral on the clearance order.
(Approved by the Office of Management and Budget under control number
1205-0039)
(Pub. L. No. 96-511, 94 Stat. 2812 (44 U.S.C. 3501 et seq.))
[45 FR 39459, June 10, 1980, as amended at 46 FR 7772, Jan. 23, 1981; 47
FR 145, Jan. 5, 1982; 71 FR 35517, June 21, 2006]
Sec. 653.104 Services to MSFW family members, farm labor contractors,
and crew members.
(a) In addition to other requirements in this subpart, the following
special requirements are established for services to MSFW family
members, farm labor contractors and crew members. Except as provided at
Sec. Sec. 653.103(e) and 653.105, no local office shall refer an MSFW
family or crew unless each working member of the family or crew being
referred, has filed either a full or partial application pursuant to
Sec. 653.103(b) at a local office or has been issued a JS card in
instances set forth in Sec. 653.103(h). Local offices may, upon
request, provide general information, e.g., the types of crops in other
areas, to farm labor contractors and family heads prior to the
registration of all working members.
(b) No local office shall accept an application from an individual
for employment as a farm labor contractor or fill an agricultural job
order submitted by a farm labor contractor (``FLC'') or farm labor
contractor employee (``FLCE'') unless the FLC or FLCE shows or obtains a
valid FLC certificate, or FLCE identification card where required by
Federal law, and a valid State certification where required by State
law. If a FLC or FLCE is temporarily without his or her valid FLC
certificate or FLCE identification card the local office shall try to
verify the existence of the valid certificate or identification card by
telephoning the State central office and/or the Department of Labor's
Employment Standards Administration regional office. The local office,
however, shall not serve the FLC or FLCE until the existence of the
valid certificate or identification card is verified.
(c) Local offices may refer workers to registered farm labor
contractors who are employers provided that a valid job
[[Page 276]]
order has been placed with the local office which clearly specifies all
the terms and conditions of employment with the farm labor contractor
shown as employer of record. Before a local office may refer workers to
a farm labor contractor offering employment in another area of the State
or in another State, one of two requirements must be met: Either a valid
interstate clearance order from another State agency is on file in the
office, or an intrastate order has been received from an office in
another area of the State which is not within commuting distance of the
office where the farm labor contractor is recruiting workers. Unless one
of these conditions exists, the local office may only refer workers to a
registered farm labor contractor who is an employer placing a local job
order. Whenever the job order includes the provision of transportation,
a FLC certificate authorizing transportation must be shown before
workers are referred on the order.
Sec. 653.105 Job applications at day-haul facilities.
If the State agency is operating a day-haul facility under the
exceptional circumstances provisions described in Sec. 653.106(a), a
list of JS services shall be distributed and a full application shall be
completed whenever an MSFW requests the opportunity to file a full
application unless this is impractical at that time. In such cases, a
full application shall be taken at the earliest practical time. In all
other cases, a list of JS services shall be distributed.
Sec. 653.106 JS day-haul responsibilities.
(a) State agencies shall not establish, operate, or supervise any
agricultural day-haul facilities unless exceptional circumstances
warrant such action and prior approval of the Regional Administrator is
obtained.
(b) No JS applicants shall be referred to non-JS operated day-haul
facilities, unless the applicant is referred on a specific job order and
is provided with a checklist summarizing wages, working conditions, and
other material specifications on the job order. Such checklists, where
necessary, shall be in English and Spanish. State agencies shall use a
standard checklist format provided by ETA unless a variance has been
approved by the Regional Administrator. However, general labor market
information on the availability of jobs, the level of activity of
agricultural and nonagricultural employment, and crop conditions shall
be provided, upon request, to applicants where specific referrals to
employment cannot be made.
(c) JS outreach workers shall visit all JS and non-JS operated day-
haul facilities with substantial activity during their operation for
purposes of providing MSFWs with information and assistance pursuant to
Sec. 653.107(j). Monitoring of such activity shall be conducted
pursuant to Sec. 653.108(p).
(Approved by the Office of Management and Budget under control number
1205-0039)
(Pub. L. No. 96-511, 94 Stat. 2812 (44 U.S.C. 3501 et seq.))
[45 FR 39459, June 10, 1980, as amended at 47 FR 145, Jan. 5, 1982]
Sec. 653.107 Outreach.
(a) Each State agency shall operate an outreach program in order to
locate and to contact MSFWs who are not being reached by the normal
intake activities conducted by the local offices. Upon receipt of
planning instructions and resource guidance from ETA, each State agency
shall develop an annual outreach plan, setting forth numerical goals,
policies and objectives. This plan shall be subject to the approval of
the Regional Administrator as part of the program budget plan (PBP)
process. Wherever feasible, State agencies shall coordinate their
outreach efforts with those of public and private community service
agencies and MSFW groups.
(b) In determining the extent of their outreach program, States
shall be guided by the following statement of ETA policy:
(1) State agencies should make sufficient penetration in the
farmworker community so that a large number of MSFWs are aware of the
full range of JS services.
(2) Signficant MSFW Local offices should conduct especially vigorous
outreach in their service areas.
(3) State agencies in supply States should conduct particularly
thorough outreach efforts with extensive follow-
[[Page 277]]
up activities which capitalize on the relatively long duration of MSFW
residence in the State.
(c) The plan shall be based on the actual conditions which exist in
the particular State, taking into account the State agency's history of
providing outreach services, the estimated number of MSFWs in the State,
and the need for outreach services in that State. The approval of the
Regional Administrator shall be based upon his/her consideration of the
following features of the outreach plan:
(1) Assessment of need. This assessment of need shall include:
(i) A review of the previous year's agricultural activity in the
State.
(ii) A review of the previous year's MSFW activity in the State.
(iii) A projected level of agricultural activity in the State for
the coming year.
(iv) A projected number of MSFWs in the State for the coming year,
which shall take into account data supplied by WIA 167 National
Farmworker Jobs Program grantees, other MSFW organizations, employer
organizations and federal and/or State agency data sources such as the
Department of Agriculture and the United States Employment Service.
(v) A statement of the consideration given to the State Monitor
Advocate's recommendation as set forth in the annual summary developed
under Sec. 653.108(t).
(2) Assessment of available resources. This assessment of the
resources available for outreach shall include:
(i) The level of funds available from all sources, including the
funds specifically made available to the State agency for outreach.
(ii) Resources made available through existing cooperative
agreements with public and private community service agencies and MSFW
groups.
(iii) Where fewer resources are available for outreach than in a
prior year, a statement of why fewer resources are available.
(3) Proposed outreach activities. The proposed outreach activities
shall be designed to meet the needs determined under paragraph (c)(1) of
this section with the available resources determined under paragraph
(c)(2) of this section. The plan for the proposed outreach activities
shall include:
(i) Numerical goals for the number of MSFWs to contacted during the
fiscal year by JS staff. The number of MSFWs planned to be contacted by
other agencies under cooperative arrangements during the fiscal year
also should be included in the plan. These numerical goals shall be
based on the number of MSFWs estimated to be in the State in the coming
year, taking into account the varying concentration of MSFWs during the
seasons in each geographic area, the range of services needed in each
area and the number of JS and/or cooperating agency staff who will
conduct outreach.
(ii) Numerical goals for the staff years to be utilized for outreach
during the fiscal year.
(iii) The level of funding to be utilized for outreach during the
fiscal year.
(iv) The tools which will be used to conduct outreach contacts,
including personal contact, printed matter, videotapes, slides, and/or
cassette recordings.
(v) The records to be maintained by the JS outreach staff--logs of
daily contacts to include the number of MSFWs contacted and assistance
provided. The name of the individual contacted should be recorded when:
(A) An application for work is taken by an outreach worker,
(B) A referral to a job is made by an outreach worker, and/or
(C) A complaint is taken by an outreach worker.
(d) In developing the outreach plan, the State agency shall solicit
information and suggestions from WIA 167 National Farmworker Jobs
Program grantees, other appropriate MSFW groups, public agencies,
agricultural employer organizations, and other interested organizations.
In addition, at least 45 days before submitting its final outreach plan
to the Regional Administrator, the State agency shall provide a proposed
plan to WIA 167 National Farmworker Jobs Program grantees, public
agencies, agricultural employer organizations, and other organizations
expressing an interest and allow at
[[Page 278]]
least 30 days for review and comment. The State agency shall:
(1) Consider any comments received in formulating its final proposed
plan.
(2) Inform all commenting parties in writing whether their comments
have been incorporated and, if not, the reasons therefore.
(3) Transmit the comments and recommendations received and its
responses to the Regional Administrator with the submission of the plan.
(If the comments are received after the submission of the plan, they may
be sent separately to the Regional Administrator.)
(e) The outreach plan shall be submitted as an essential part of the
State's annual PBP. The resource requirement of the plan shall be
reflected in the PBP budget request. The plan, including the resource
requirement, shall be reviewed by the Regional Administrator during the
annual PBP approval process. The State agency shall be required to
implement the approved outreach plan as part of its compliance with the
PBP.
(f) The Regional Administrator shall review and evaluate the
outreach plan, including the assessments of needs and resources, in
light of the history of the State's outreach efforts and the statements
of policy set forth in Sec. 653.107(b). He/she shall approve the plan
only if it demonstrates that adequate outreach will be conducted. The
approved outreach plan shall be available for review by interested
parties.
(g) As part of the annual PBP process, funding of State agencies
shall be contingent upon the substantial and timely compliance of the
State agency with its prior year outreach plan. However, if the Regional
Administrator makes a finding of good faith efforts, he/she may fund a
State agency even though it did not achieve substantial and timely
compliance.
(h) For purposes of hiring and assigning staff to outreach duties,
State agencies shall seek, through merit system procedures, qualified
candidates:
(1) Who are from MSFW backgrounds, and/or
(2) Who speak Spanish, and/or
(3) Who are racially or ethnically representative of the MSFWs in
the service area.
(i) The five States with the highest estimated year round MSFW
activity shall assign, in accordance with State merit staff
requirements, full-time, year round staff to outreach duties. The
remainder of the significant MSFW states shall make maximum efforts to
hire outreach staff with MSFW experience for year round positions and
shall assign outreach staff to work full-time during the period of the
highest MSFW activity. Such outreach staff shall be bilingual if
warranted by the characteristics of the MSFW population in the State,
and shall spend a majority of their time in the field. The Regional
Administrator may grant approval for a deviation from the requirements
of this section if the State agency provides adequate evidence that
outreach activities and service delivery to MSFWs would be improved
through other staffing arrangements.
(j) For purposes of this subpart, an outreach ``contact'' shall
include either the presentation of information and offer of assistance
specified in paragraphs (j)(1) and (j)(2) of this section, or the
followup activity specified in paragraph (j)(3) of this section.
(1) Outreach workers shall explain to MSFWs at their working, living
or gathering areas, including day-haul sites, by means of written and
oral presentations either spontaneous or recorded, in a language readily
understood by them, the following;
(i) The services available from the local office, including the
availability of referrals to agricultural and nonagricultural
employment, to training, to supportive services, as well as the
availability of testing, counseling and other job development services;
(ii) Types of specific employment opportunities which are currently
available in the JS system;
(iii) Information on the JS complaint system and other organizations
serving MSFWs;
(iv) A basic summary of farmworker rights with respect to the terms
and conditions of employment;
(v) Provided, however, That outreach workers shall not enter work
areas to perform outreach duties described in this section on an
employer's property without permission of the employer, unless otherwise
authorized to enter by
[[Page 279]]
law, shall not enter workers' living areas without the permission of the
workers, and shall comply with appropriate State laws regarding access.
(2) After making the presentation, outreach workers shall urge the
MSFWs to go to the local office to obtain the full range of JS services.
If an MSFW cannot or does not wish to visit the local JS office, the
outreach workers shall offer to provide on-site the following:
(i) Assistance in the preparation of applications;
(ii) If an unemployed MSFW, assistance in obtaining referral to
specific employment opportunities currently available; if an employed
MSFW, information regarding the types of employment opportunities which
will become available upon the date on which the MSFW indicates that he/
she will be available following his/her current employment.
(iii) Assistance in the preparation of either JS or non-JS related
complaints;
(iv) Receipt and subsequent referral of complaints to the local
office complaint specialist or local officer manager;
(v) Referral to supportive services for which the individual or a
family member may be eligible;
(vi) As needed, assistance in making appointments and arranging
transportation for individual MSFWs or members of their family to and
from local offices or other appropriate agencies.
(3) Outreach workers shall make follow-up contacts as are necessary
and appropriate to provide to the maximum extent possible the assistance
specified in paragraphs (j)(1) and (j)(2) of this section.
(4) In addition to the foregoing outreach contacts, the State agency
shall publicize the availability of JS services through such means as
newspaper and electronic media publicity. Contacts with public and
priviate community agencies, employers and/or employer organizations,
and MSFW groups also shall be utilized to facilitate the widest possible
distribution of information concerning JS services.
(k) Outreach workers shall be alert to observe the working and
living conditions of MSFWs and, upon observation, or upon receipt of
information regarding a suspected violation of federal or State
employment-related law, document and refer information to the local
office manager for processing in accordance with Sec. 653.113.
(l) Outreach workers shall be trained in local office procedures and
in the services, benefits, and protections afforded MSFWs by the JS.
They shall also be trained in the procedure for informal resolution of
complaints. The program for such training shall be formulated by the
State Administrator, pursuant to uniform guidelines developed by ETA,
and each State's program shall be reviewed and commented upon in advance
by the State MSFW Monitor Advocate.
(m) During months when outreach activities are conducted, outreach
workers shall maintain complete records of their contacts with MSFWs and
the services they perform in accordance with a format developed by ETA.
These records shall include a daily log, a copy of which shall be sent
monthly to the local office manager and maintained on file for at least
two years. These records shall include the number of contacts and names
of contacts (where applicable), the services provided (e.g., whether a
complaint was received, whether an application was taken, and whether a
referral was made). Outreach workers also shall maintain records of each
possible violation or complaint of which they have knowledge, and their
actions in ascertaining the facts and referring the matters as provided
herein. These records shall include a description of the circumstances
and names of any employers who have refused outreach workers access to
MSFWs pursuant to Sec. 653.107(l).
(n) During months when outreach activities are conducted, each local
office manager shall file with the State MSFW Monitor Advocate a monthly
summary report of outreach efforts. These reports shall summarize
information collected, pursuant to paragraph (m) of this section. The
local office manager and/or other appropriate State office staff members
shall assess the performance of outreach workers by examining the
overall quality and productivity of their work, including
[[Page 280]]
the services provided and the methods and tools used to offer services.
Performance shall not be judged solely by the number of contacts made by
the worker. The monthly reports and daily outreach logs shall be made
available to the State MSFW Monitor Advocate and federal On-Site Review
Teams. In addition, the distribution of any special funds for outreach,
should funds become available, shall be based on the effectiveness and
need of the State's outreach program as monitored by ETA.
(o) Outreach workers shall not engage in political, unionization or
antiunionization activities during the performance of their duties.
(p) Outreach workers shall be provided with, carry and display, upon
request, identification cards or other material identifying them as
employees of the State agency.
(Approved by the Office of Management and Budget under control number
1205-0039)
(Pub. L. No. 96-511, 94 Stat. 2812 (44 U.S.C. 3501 et seq.))
[45 FR 39459, June 10, 1980, as amended at 47 FR 145, Jan. 5, 1982; 71
FR 35518, June 21, 2006]
Sec. 653.108 State agency self-monitoring.
(a) State Administrators shall assure that their State agencies
monitor their own compliance with JS regulations in serving MSFWs on an
ongoing basis. The State Administrator shall have overall responsibility
for State agency self-monitoring.
(b) The State Administrator shall appoint a State MSFW Monitor
Advocate. The State Administrator shall inform farmworker organizations
and other organizations with expertise concerning MSFWs of the opening
and encourage them to refer qualified applicants to apply through the
State merit system prior to appointing a State MSFW Monitor Advocate.
Among qualified candidates determined through State merit system
procedures, the State agencies shall seek persons (1) who are from MSFW
backgrounds, or (2) who speak Spanish or other languages of a
significant proportion of the State MSFW population, or (3) who are
racially or ethnically similar to the MSFWs in the State, or (4) who
have substantial work experience in farmworker activities.
(c) The State MSFW Monitor Advocate shall have direct, personal
access, whenever he/she finds it necessary, to the State Administrator
and shall work in the State central office. The State MSFW Monitor
Advocate shall have status and compensation as approved by the civil
service classification system and be comparable to other State positions
assigned similar levels of tasks, complexity and responsibility.
(d) The State MSFW Monitor Advocates shall be assigned staff
necessary to fulfill effectively all of his/her duties as set forth in
this subpart. The number of staff positions shall be determined by
reference to:
(1) The number of MSFWs in the State, as measured at the time of the
peak MSFW population (MSFW activity), and (2) the need for monitoring
activity in the State. The MSFW Monitor Advocates shall devote full time
to Monitor Advocate functions, except that the OWI Administrator may
reallocate positions from States of low MSFW activity to States of
higher MSFW activity and may approve a plan for less than full-time work
in States of low MSFW activity. Any such plan must demonstrate that the
State MSFW Monitor Advocate function can be effectively performed with
part-time staffing.
(e) All State MSFW Monitor Advocates and Assistant MSFW Monitor
Advocates shall attend within the first three months of their tenure a
training session conducted by the Regional MSFW Monitor Advocate. They
shall also attend whatever additional training sessions are required by
the Regional or National MSFW Monitor Advocate.
(f) The State MSFW Monitor Advocate shall provide any relevant
documentation requested from the State agency by the Regional MSFW
Monitor Advocate.
(g) The State MSFW Monitor Advocate shall:
(1) Conduct an ongoing review of the delivery of services and
protections afforded by JS regulations to MSFWs by the State agency and
local offices. The
[[Page 281]]
State MSFW Monitor Advocate, without delay, shall advise the State
agency and local offices of (i) problems, deficiencies, or improper
practices in the delivery of services and protections afforded by these
regulations (including progress made in achieving affirmative action
goals and timetables), and (ii) means to improve such delivery.
(2) Participate in onsite local office MSFW formal monitoring
reviews on a regular basis.
(3) Assure that all significant MSFW local offices not reviewed
onsite by Federal staff, are reviewed at least once a year by State
staff, and that, if necessary, those local offices in which significant
problems are revealed by required reports, management information, the
JS complaint system or otherwise are reviewed as soon as possible.
(4) Assure that the monitoring review format, developed by ETA, is
used as a guideline in the conduct of local office MSFW onsite formal
monitoring reviews. This format will ensure that applications and the
application-taking process are reviewed during State onsite reviews by
State MSFW Monitor Advocates and/or review staff, who shall check
overall accuracy and quality, and offer technical advice on corrections
or improvements.
(5) Review the State agency's outreach plan, and on a random basis,
the outreach workers' daily logs and other reports including those
showing or reflecting the workers' activities, to ensure that they
comply with the outreach plan.
(h) Formal onsite MSFW monitoring reviews of local offices shall be
conducted using the following procedures:
(1) Before beginning such a review, the State MSFW Monitor Advocate
and/or review staff shall study:
(i) Program performance data,
(ii) Reports of previous reviews,
(iii) Corrective action plans developed as a result of previous
reviews,
(iv) Complaint logs, and
(v) Complaints elevated from the office or concerning the office.
(2) Upon completion of a local office onsite formal monitoring
review, the State MSFW Monitor Advocate shall hold one or more wrap-up
sessions with the local office manager and staff to discuss any obvious
findings and offer initial recommendations and appropriate technical
assistance.
(3) After each review the State MSFW Monitor Advocate shall conduct
an indepth analysis of the review data. The conclusions and
recommendations of the State MSFW Monitor Advocate shall be put in
writing, shall be sent to the State Administrator, to the offical of the
State agency with line authority over the local office, and other
appropriate State agency officials.
(4) The state MSFW Monitor Advocate may recommend that the review
responsibility set forth in this subsection be delegated to a
responsible professional member of the administrative staff of the State
agency, if and when the State Administrator finds such delegation
necessary. In such event, the State MSFW Monitor Advocate shall be
responsible for and shall approve the written report of the review.
(5) The local office manager shall develop and propose a written
corrective action plan. The plan shall be approved, or appropriately
revised, by appropriate superior officials and the State MSFW Monitor
Advocate. The plan shall include actions required to correct or to take
major steps to correct any problems within 30 days or if the plan allows
for more than 30 days for full compliance, the length of, and the
reasons for, the extended period shall be specifically stated.
(6) State agencies, through line supervisory staff, shall be
responsible for assuring and documenting that the local office is in
compliance within the time period designated in the plan. State agencies
shall submit to the appropriate ETA regional offices copies of the
onsite local office formal monitoring review reports and corrective
action plans for significant local offices.
(i) The State MSFW Monitor Advocate shall participate in federal
reviews conducted pursuant to subpart G.
(j) At the discretion of the State Administrator, the State MSFW
Monitor Advocate may be assigned the responsibility as the complaint
specialist. The State MSFW Monitor Advocate shall participate in and
monitor the performance of the complaint system, as set forth at 20 CFR
658.400 et seq. The
[[Page 282]]
State MSFW Monitor Advocate shall review the local office managers'
informal resolution of complaints relating to MSFWs and shall ensure
that the State agency transmits copies of the logs of MSFW complaints to
the regional office quarterly.
(k) The State MSFW Monitor Advocate also shall serve as an advocate
to improve services for MSFWs within JS. The State MSFW Monitor Advocate
shall establish ongoing liaison with WIA 167 National Farmworker Jobs
Program and other organizations serving farmworkers, and employers and/
or employer organizations, in the State. The State MSFW Monitor Advocate
shall meet frequently with representatives of these organizations to
receive complaints, assist in referrals of alleged violations to
enforcement agencies, receive input on improving coordination with JS or
improving JS services to MSFWs.
(l) The State MSFW Monitor Advocate shall conduct frequent field
visits to the working and living areas of MSFWs, and shall discuss JS
services and other employment-related programs with MSFWs, crew leaders,
and employers. Records shall be kept of each such visit.
(m) The State MSFW Monitor Advocate shall participate in the
appropriate regional public meeting(s) held by the Department of Labor
Regional Farm Labor Coordinated Enforcement Committee.
(n) The State MSFW Monitor Advocate shall ensure that outreach
efforts in all significant MSFW local offices are reviewed at least
yearly to ensure that there is continuing compliance with 20 CFR
653.107. This review will include accompanying at least one outreach
worker from each significant MSFW local office on his/her visits to
MSFWs' working and living areas. The State MSFW Monitor Advocate shall
review findings from these reviews.
(o) The State MSFW Monitor Advocate shall review and assess the
adequacy of the annual State affirmative action plan for MSFWs, and
shall report such findings to the State Administrator.
(p) The State MSFW Monitor Advocate shall ensure that JS outreach
activities are reviewed periodically at day-haul sites at which these
activities are conducted. Complete records of such visits shall be kept.
The State MSFW Monitor Advocate shall ensure that local offices and the
State Administrator are advised of any deficiencies.
(q) The State MSFW Monitor Advocate shall review on at least a
quarterly basis all statistical and other MSFW-related data reported by
significant MSFW local offices in order (1) to determine the extent to
which the State agency has complied with regulations at Sec. 653.100 et
seq., and (2) to identify the areas of inadequate compliance.
(r) The State MSFW Monitor Advocate shall have full access to all
statistical and other MSFW-related information gathered by State
agencies and local offices and may interview State and local office
staffs with respect to reporting methods. Subsequent to each review, the
State MSFW Monitor Advocate shall consult, as necessary, with State and
local offices and provide technical assistance to ensure accurate
reporting.
(s) The State MSFW Monitor Advocate shall review and comment on
proposed State JS directives, manuals, and operating instructions
relating to MSFWs and shall ensure (1) that they accurately reflect the
requirements of the regulations, and (2) that they are clear and
workable. The State MSFW Monitor Advocate also shall explain and make
available at the requestor's cost, pertinent directives and procedures
to employers, employer organizations, farmworkers, farmworker
organizations and other parties expressing an interest in a readily
identifiable directive or procedure issued and receive suggestions on
how these documents can be improved.
(t) The State MSFW Monitor Advocate shall prepare for the State
Administrator an annual summary of JS services to MSFWs within his/her
State based on statistical data and his/her reviews and activities set
forth in these regulations. The summary shall include an assessment of
the State agency's activities related to MSFWs such as those covered in
the State agency's PBP, outreach plan, and affirmative action plan, and
the other matters with respect to which the State MSFW
[[Page 283]]
Monitor Advocate has responsibilities under these regulations. A copy of
this summary shall be forwarded to the Regional Administrator by the
State Administrator.
(Approved by the Office of Management and Budget under control number
1205-0039)
(Pub. L. No. 96-511, 94 Stat. 2812 (44 U.S.C. 3501 et seq.))
[45 FR 39459, June 10, 1980, as amended at 47 FR 145, Jan. 5, 1982; 71
FR 35518, June 21, 2006]
Sec. 653.109 Data collection.
State agencies shall: (a) Collect data on MSFWs, including data on
the number (1) contacted through outreach activities, (2) registering
for service, (3) referred to agricultural jobs, (4) referred to non-
agricultural jobs, (5) placed in agricultural jobs, (6) placed in non-
agricultural jobs, (7) referred to training, (8) receiving counseling,
(9) receiving job development, (10) receiving testing, (11) referred to
supportive service, (12) receiving some service, (13) placed according
to wage rates, and (14) placed according to duration. The State agencies
also shall collect data on agricultural clearance orders (including
field checks), MSFW complaints, and monitoring activities, as directed
by ETA. These data shall be collected in accordance with applicable ETA
Reports and Guidance Letters.
(b) Collect data on the number of MSFWs who were served as to
whether they were male, female, black, Hispanic, American Indian, Asian,
or Pacific Islander.
(c) Provide necessary training to State agency, including local
office personnel, to assure accurate reporting of data;
(d) Collect and submit to ETA as directed by ETA, data on MSFWs
required by the PBP, and
(e) Periodically collect and verify data required under this
subsection, take necessary steps to ensure its validity, and collect and
submit data for verification to ETA, as directed by ETA; and
(f) Submit additional reports to the ETA at such times and
containing such items as ETA directs.
(Approved by the Office of Management and Budget under control number
1205-0039)
(Pub. L. No. 96-511, 94 Stat. 2812 (44 U.S.C. 3501 et seq.))
[45 FR 39459, June 10, 1980, as amended at 47 FR 145, Jan. 5, 1982; 71
FR 35518, June 21, 2006]
Sec. 653.110 Disclosure of data.
(a) State agencies shall disclose to the public, on written request,
in conformance with applicable State and Federal law, the data collected
by State and local offices pursuant to Sec. 653.109, if possible within
10 working days after receipt of the request.
(b) If a request for data held by a State agency is made to the ETA
national or regional office, the ETA shall forward the request to the
State agency for response.
(c) If the requested data cannot be supplied within 10 working days
of receipt by the State agency of the request, the State agency shall
respond to the requestor in writing, giving the reason for the delay and
specifying the date by which it expects to be able to comply.
(d) State agency intra-agency memoranda and reports (or parts
thereof) and memoranda and reports (or parts thereof) between the State
agency and the ETA, however, to the extent that they contain statements
of opinion rather than facts, may be withheld from public disclosure
provided this reason for withholding is given to the requestor in
writing. Similarly, documents or parts thereof, which, if disclosed,
would constitute an unwarranted invasion of personal or employer
privacy, may also be withheld provided the reason is given to the
requestor in writing.
Sec. 653.111 State agency staffing requirements.
(a) On a statewide basis, staff representative of the racial and
ethnic characteristics in the work force shall be distributed in
substantially the same proportion among (1) all ``job groups'' (as that
term is defined by the Office of Federal Contract Compliance
[[Page 284]]
Programs), and (2) all offices in the plan(s).
(b)(1) As part of the PBP, each State agency shall develop and
submit to the Regional Administrator affirmative action plans for all
significant local offices within its jurisdiction (which, for the
purposes of this provision, means those local offices representing the
top 20 per cent of MSFW activity nationally). These affirmative action
plans shall include goals and timetables and shall ensure that
sufficient numbers of qualified, permanent minority staff are hired.
Where qualified minority applicants are not available to be hired as
permanent staff, qualified minority part-time, provisional, or temporary
staff shall be hired in accordance with State merit system procedures,
where applicable. These affirmative action plans shall be prepared on an
individual office basis.
(2) The affirmative action plans shall include an analysis of the
racial and ethnic characteristics of the work force in the local office
service area. To determine the ``work force'' for the purpose of this
paragraph, the State agency shall include the racial and ethnic
characteristics of any MSFW population which is not a part of the
permanent work force by computing an estimate of the total work years
MSFWs collectively spend in the area and including a number of workers
equivalent to this estimate as part of the permanent work force. This
computation shall be made by calculating the average length of time, as
a fractional part of a year, MSFWs stay in the area and then multiplying
this figure by the total estimated MSFW population in the area during
the previous year.
(3) The affirmative action plan also shall include an analysis of
the local office staffing characteristics. The plan shall provide a
comparison between the characteristics of the staff and the work force
and determine if the composition of the local office staff(s) is
representative of the racial and ethnic characteristics of the work
force in the local office service area(s).
(4) If the staff under-represents any of these characteristics, the
State agency shall establish a staffing goal at a level equivalent to
the percentage of the characteristics in the work force in the local
office service areas. The State agency also shall establish a reasonable
timetable for achieving the staffing goal by hiring or promoting
available, qualified staff in the under-represented categories. In
establishing timetables, the State agency shall consider the vacancies
anticipated through expansion, contraction, and turnover in the
office(s) and available funds, and all affirmative action plans shall
establish timetables that are designed to achieve the staffing goal no
later than December 31, 1983.
(c) In addition, each State agency which has significant local
offices, shall undertake special efforts to recruit MSFWs and persons
from MSFW back-grounds for its staff, shall document achievements, and
shall include in the affirmative action plan(s) a complete description
of specific actions which the agency will take and time frames within
which these actions will be taken.
(d) In developing the affirmative action plan for significant local
offices, the State agency shall solicit from WIA 167 National Farmworker
Jobs Program and other appropriate MSFW groups, employer organizations
and other interested organizations, estimates of the total MSFW
population in each local office service area, and the average length of
time the MSFWs stay in the area. In addition, State agencies shall
solicit, consider, incorporate as appropriate, respond to and include
copies of comments from WIA 167 National Farmworker Jobs Program, other
appropriate MSFW groups, employer organizations, and other interested
organizations, following procedures set forth for the annual outreach
plan at Sec. 653.107(d).
(e) As part of the annual Program and Budget Plan (PBP) process, the
funding of State agencies which are required to develop and implement
affirmative action plans for significant local offices shall be
contingent upon the timely submittal of adequate affirmative action
plans and the substantial and timely attainment of the goals and
timetables contained in those plans. However, if the Regional
Administrator makes a finding of good faith efforts, he/she may fund a
State agency
[[Page 285]]
even though it did not achieve substantial and timely compliance.
(f) All State Workforce Agencies (SWAs) required to develop
affirmative action plans for significant local offices shall keep
accurate records of their employment practices for those offices,
including information on all applications. These records shall be
maintained in accordance with the recordkeeping requirements concerning
affirmative action which are established by ETA and distributed to the
SWAs. All records shall be made available to the State MSFW Monitor
Advocate, EEO staff and Federal On-Site Review Teams.
(g) Affirmative action plans shall contain a description of specific
steps to be taken for the adequate recruitment of MSFWs for all vacant
positions in significant local offices and the central office. These
steps shall include advertisements in newspapers, radio or other media,
in a manner calculated to best reach the MSFW population, and contacts
by outreach workers and the State MSFW Monitor Advocate with groups
serving the MSFW population.
(h) State EEO staff shall have the responsibility for developing
affirmative action plans. The State MSFW Monitor Advocate(s) shall
comment on the plan to the State Administrator. Upon submission of the
affirmative action plan as part of the State agency's PBP submittal, the
Regional MSFW Monitor Advocate shall review the affirmative action
plan(s) as it pertains to MSFWs and comment to the Regional
Administrator. As part of his/her regular reviews of State agency
compliance, the Regional MSFW Monitor Advocate shall monitor the extent
to which the State has complied with its affirmative action plan(s) as
it pertains to MSFWs. The Regional MSFW Monitor Advocate's finding as to
the adequacy of the plan(s) and as to the State's compliance with the
plan(s) shall be considered in PBP decisions involving future funding of
the State agency.
(Approved by the Office of Management and Budget under control number
1205-0039)
(Pub. L. No. 96-511, 94 Stat. 2812 (44 U.S.C. 3501 et seq.))
[45 FR 39459, June 10, 1980, as amended at 47 FR 145, Jan. 5, 1982; 71
FR 35518, June 21, 2006]
Sec. 653.112 State agency program budget plans.
(a) Each State agency, in its annual program budget plan, shall
describe its plan to carry out the requirements of this subpart in the
following year. The plan shall include, where applicable, the outreach
and affirmative action plans required by Sec. Sec. 653.107 and 653.111,
respectively. For significant MSFW States, ETA shall establish program
performance indicators reflecting equity indicators and indicators
measuring minimum levels of service to MSFWs which the significant MSFW
State agencies will be required to meet. These program performance
indicator requirements shall be contained in the PBP Guidelines which
ETA promulgates on an annual basis.
(b) Equity indicators shall address JS controllable services and
shall include, at a minimum, individuals referred to a job; receiving
counselling; receiving job development; receiving some service; and
referred to supportive service.
(c) Minimum level of service indicators shall address other services
to MSFWs and shall include, at a minimum, individuals placed in a job;
placed in a job with a wage exceeding the Federal minimum wage by at
least 50 cents/hour; placed long-term (150 days or more) in a non-
agricultural job; review of significant MSFW local offices; field checks
on agricultural clearance orders; outreach contacts per staff day; and
processing of complaints. The determination of the minimum service
levels required of significant MSFW States for each year shall be based
on the following:
(1) Past State agency performance in serving MSFWs, as reflected in
on-site reviews and data collected under Sec. 653.109;
(2) The need for services to MSFWs in the following year, comparing
prior and projected levels of MSFW activity;
[[Page 286]]
(3) The ETA program priorities for the following year; and
(4) Special circumstances and external factors existing in the
particular State.
(d) The Regional Administrator shall review this portion of the PBP,
and approve it upon making a written determination that it is acceptable
in light of the requirements of this subpart. The Regional
Administrator's written determination shall be available to the public
upon request.
(Approved by the Office of Management and Budget under control number
1205-0039)
(Pub. L. No. 96-511, 94 Stat. 2812 (44 U.S.C. 3501 et seq.))
[45 FR 39459, June 10, 1980, as amended at 47 FR 145, Jan. 5, 1982]
Sec. 653.113 Processing apparent violations.
(a) If a State agency employee observes, has reason to believe, or
is in receipt of information regarding a suspected violation of
employment related laws or JS regulations by an employer, except as
provided at Sec. 653.503 (field checks) or Sec. 658.400 of this
chapter (complaints), the employee shall document the suspected
violation and refer this information to the local office manager.
(b) If the employer has filed a job order with the JS office within
the past 12 months, the local office shall attempt informal resolution.
If the employer does not remedy the suspected violation within 5 working
days, procedures at part 658, subpart F of this chapter shall be
initiated and, if a violation of an employment related law is involved,
the violation shall be referred to the appropriate enforcement agency in
writing.
(c) If the employer has not filed a job order with the local office
during the past 12 months, the suspected violation of an employment
related law shall be referred to the appropriate enforcement agency in
writing.
Subpart C--Services for Veterans [Reserved]
Subpart D--Services to the Handicapped [Reserved]
Subpart E--Support Services [Reserved]
Subpart F_Agricultural Clearance Order Activity
Source: 45 FR 39466, June 10, 1980, unless otherwise noted.
Sec. 653.500 Purpose and scope of subpart.
This section contains the requirements for acceptance and handling
of intrastate and interstate job clearance orders seeking workers to
perform agricultural or food processing work on a less than year round
basis. Orders seeking workers to perform agricultural or food processing
work on a year round basis which involves permanent relocation are not
subject to the requirements of this subpart. This section, therefore,
contains requirements which affect not only applicants who are
categorized as MSFWs based on their past employment, but all workers who
are recruited through the JS intrastate and interstate clearance systems
for less than year round agricultural or food processing work.
Sec. 653.501 Requirements for accepting and processing clearance
orders.
(a) In view of the statutorily established basic function of the job
service as a no-fee labor exchange, that is, as a forum for bringing
together employers and job seekers, neither the ETA nor the State
agencies are guarantors of the accuracy or truthfulness of information
contained on job orders submitted by employers. Nor does any job order
accepted or recruited upon by the JS constitute a contractual job offer
to which the ETA or a State agency is in any way a party. Nevertheless,
if the ETA or a State agency discovers that an employer's job order
contains a material misrepresentation, the procedures of subpart F of
part 658 of this chapter shall be followed.
(b) Intrastate and interstate job orders shall include the language
of the first two sentences of paragraph (a) of this section.
(c) No local office or State agency shall place into intrastate or
interstate
[[Page 287]]
clearance any job order seeking workers to perform agricultural or food
processing work before reviewing it pursuant to paragraphs (d) or (e) of
this section, as applicable.
(d) No local office shall place a job order seeking workers to
perform agricultural or food processing work into intrastate clearance
unless:
(1) The job order does not contain an unlawful discriminatory
specification by race, color, religion, national origin, age, sex, or
mental or physical status unrelated to job performance (handicap);
(2) The employer has signed the job order and the job order states
all the material terms and conditions of the employment, including:
(i) The crop;
(ii) The nature of the work;
(iii) The anticipated period and hours of employment;
(iv) The anticipated starting and ending date of employment and the
anticipated number of days and hours per week for which work will be
available;
(v) An assurance that:
(A) The employer will provide to workers referred through the
clearance system the number of hours of work cited in paragraph
(d)(2)(iv) of this section for the week beginning with the anticipated
date of need, unless the employer has amended the date of need at least
10 working days prior to the original date of need (pursuant to
paragraph (d)(2)(xiii) of this section) by so notifying the order-
holding office. The State agency shall make a record of this
notification and shall attempt to inform referred migrant workers of the
change in accordance with the following procedure:
(B) All workers referred through the clearance system, farm labor
contractors on behalf of migrant workers or family heads on behalf of
migrant family members referred through the clearance system shall be
notified to contact a local job service office, preferably the order-
holding office, to verify the date of need cited no sooner than 9
working days and no later than 5 working days prior to the original date
of need cited on the job order; and that failure to do so will
disqualify the referred migrant worker from the assurance provided in
paragraphs (a) and (d) of this section.
(C) If the worker referred through the clearance system contacts a
local office (in any State) other than the order holding office, that
local office shall assist the referred worker in contacting the order
holding office on a timely basis. Such assistance shall include, if
necessary, contacting the order holding office by telephone or other
timely means on behalf of the worker referred through the clearance
system.
(D) If the employer fails to notify the order-holding office at
least 10 working days prior to the original date of need the employer
shall pay eligible (pursuant to paragraph (b) of this section) workers
referred through the clearance system the specified hourly rate of pay,
or in the absence of a specified hourly rate of pay, the higher of the
Federal or State minimum wage for the first week starting with the
originally anticipated date of need.
(E) Employers may require workers to perform alternative work if the
guarantee in this section is invoked and if such alternative work is
stated on the job order.
(F) For the purposes of this assurance, ``working days'' shall mean
those days that the order-holding local office is open for public
business.
(vi) The hourly wage rate or the piece rate estimated in hourly wage
rate equivalents for each activity and unit size;
(vii) Any deductions to be made from wages;
(viii) A specification of any non-monetary benefits to be provided
by the employer;
(ix) Any hours, days or weeks for which work is guaranteed, and, for
each guaranteed week of work except as provided in paragraph (d)(2)(v)
of this section, the exclusive manner in which the grarantee may be
abated due to weather conditions or other acts of God beyond the
employer's control;
(x) Any bonus or work incentive payments or other expenses which
will be paid by the employer in addition to the basic wage rate,
including the anticipated time period(s) within which such
[[Page 288]]
payments will be made. No such payments, however, shall be made
contingent upon the worker continuing employment beyond the period of
employment specified in the job order or, in the case of any worker with
children, beyond the time needed to return home for the beginning of the
school year;
(xi) An assurance that no extension of employment beyond the period
of employment specified in the job order shall relieve the employer from
paying the wages already earned, or if specified in the job order as a
term of employment, providing transportation or paying transportation
expenses to the worker's home;
(xii) Assurances that the working conditions comply with applicable
Federal and State minimum wage, child labor, social security, health and
safety, farm labor contractor registration and other employment-related
laws;
(xiii) An assurance that the employer will expeditiously notify the
order-holding local office or State agency by telephone immediately upon
learning that a crop is maturing earlier or later, or that weather
conditions, over-recruitment or other factors have changed the terms and
conditions of employment. For orders submitted in conjunction with
requests for foreign workers, an assurance that the employer will
follow-up the telephone notification in writing.
(xiv) An assurance that the employer, if acting as a farm labor
contractor (``FLC'') or farm labor contractor employee (``FLCE'') on the
order, has a valid FLC certificate or FLCE identification card; and
(xv) An assurance of the availability of no cost or public housing
which meets the Federal standards and which is sufficient to house the
specified number of workers requested through the clearance system. This
assurance shall cover the availability of housing for only those
workers, and, when applicable, family members who are unable to return
to their residence in the same day.
(xvi) An assurance that outreach workers shall have reasonable
access to the workers in the conduct of outreach activities pursuant to
Sec. 653.107.
(3) The job order contains all the material terms and conditions of
the job, and the employer assures that all items therein are actual
conditions of the job by signing the following statement: ``This job
order describes the actual terms and conditions of the employment being
offered by me and contains all the material terms and conditions of the
job'';
(4) The wages and working conditions offered are not less than the
prevailing wages and working conditions among similarly employed
agricultural workers in the area of intended employment or the
applicable Federal or State minimum wage, whichever is higher. If the
wages offered are expressed as piece rates or as base rates and bonuses,
the employer shall make the method of calculating the wage and
supporting materials available to JS staff who shall check if the
employer's calculation of the estimated hourly wage rate is reasonably
accurate and is not less than the prevailing wage rate or applicable
Federal or State minimum wage, whichever is higher;
(5) The employer has agreed to provide or pay for the transportation
of the workers and their families on at least the same terms as
transportation is commonly provided by employers in the area of intended
employment to agricultural workers and their families recruited from the
same area of supply;
(6) JS staff have determined, through a preoccupancy housing
inspection performed by JS staff or other appropriate public agencies,
that the housing assured by the employer is in fact available, and meets
the full set of standards set forth at 20 CFR part 654, subpart E which
details applicable housing standards and contains provisions for
conditional access to the clearance system; except that mobile range
housing for sheepherders shall meet existing Departmental guidelines;
and
(7) The local office and employer have attempted and have not been
able to obtain sufficient workers within the local labor market area, or
the local office anticipates a shortage of local workers.
(e) No state agency shall place a job order seeking workers to
perform agricultural or food processing work with interstate clearance
unless:
[[Page 289]]
(1) The job order meets the requirements set forth at paragraphs
(d)(1) through (d)(6) of this section;
(2) The State agency and the employer have attempted and have not
been able to locate sufficient workers within the state, or the State
agency anticipates a shortage of workers within the State; and
(3) The order has been reviewed and approved by the ETA regional
office within 10 working days after receipt from the State agency, and
the Regional Administrator has approved the areas of supply to which the
order shall be extended. Any denial by the Regional Administrator shall
be in writing and set forth the reasons for the denial.
(f)(1) The local office shall use the agricultural clearance form
prescribed by ETA, and shall see that all necessary items on the form
are completed, including items on attachments to the form prescribed by
ETA.
(2)(i) The original of an interstate agricultural clearance form
shall be retained for the order-holding local office files. If the
clearance order is submitted in conjunction with a request for
certification of temporary alien agricultural workers, the procedures at
20 CFR 655.204(a) shall be followed. For other clearance orders, the
order-holding local office shall transmit a complete copy to the State
office. The State office shall distribute additional copies of the form
with all attachments except that the State agency may, at its
discretion, delegate this distribution to the local office, as follows:
(A) At least one clear copy to each of the State agencies selected
for recruitment (areas of supply);
(B) One copy to each applicant-holding ETA regional office;
(C) One copy to the order-holding ETA regional office; and
(D) One copy to the Regional Farm Labor Coordinated Enforcement
Committee in the area of employment, Attn: ESA Regional Administrator.
(ii) Applicant-holding offices shall provide workers referred on
clearance orders with a checklist summarizing wages, working conditions
and other material specifications on the job order. Such checklists,
where necessary, shall be in English and Spanish. The checklist shall
include language notifying the worker that a copy of the complete order
is available for inspection. One copy of the form with all attachments
shall be available for inspection in the applicant-holding office and
the order-holding office. State agencies shall use a standard checklist
format provided by ETA unless a variance has been approved by the
Regional Administrator.
(iii) The applicant-holding office shall give each referred worker a
copy of a description of worker's rights developed by the National Farm
Labor Coordinated Enforcement Committee.
(g) The local office may place an intrastate or interstate order
seeking workers to perform agricultural or food processing work for a
specific farm labor contractor or worker preferred by the employer
provided the order meets JS nondiscrimination criteria. The order would
not meet such criteria, for example, if it requested a ``white male crew
leader'' or ``any white male crew leader.''
(h) In local offices which have been designated significant MSFW
bilingual offices by ETA, and in any other local office with bilingual
staff, bilingual (English-Spanish) staff shall assist all agricultural
workers, upon request, to understand the terms and conditions of
employment set forth in intrastate and interstate job orders and shall
provide such workers with checklists in Spanish showing wage payment
schedules, working conditions and other material specifications of the
job order.
(i) No agricultural or food processing order shall be included in
job bank listings available outside the local office commuting area
unless the order has been processed according to requirements for
intrastate or interstate clearance contained in this subpart. If the job
bank for the local office area incorporates offices beyond the local
office commuting area, the order may be included in the listing but must
be clearly designated as prohibiting referral from outside the community
area, unless the requirements of this subpart are met.
(j) If the labor supply State agency accepts a clearance order, the
State agency shall actively recruit workers for referral. In the event a
potential
[[Page 290]]
labor supply State agency rejects a clearance order, the reasons for
rejection shall be documented and submitted to the Regional
Administrator having jurisdiction over the State agency. The Regional
Administrator will examine the reasons for rejection, and, if the
Regional Administrator agrees, will inform the Regional Administrator
with jurisdiction over the order-holding State agency of the rejection
and the justifiable reasons. If the Regional Administrator who receives
the notification of rejection does not concur with the reasons for
rejection, that Regional Administrator will so inform the OWI
Administrator, who will make a final determination on the acceptance or
rejection of the order.
(Approved by the Office of Management and Budget under control number
1205-0039)
(Pub. L. No. 96-511, 94 Stat. 2812 (44 U.S.C. 3501 et seq.))
[45 FR 39466, June 10, 1980, as amended at 47 FR 145, Jan. 5, 1982; 71
FR 35518, June 21, 2006]
Sec. 653.502 Changes in crop and recruitment situations.
(a) If a labor demand State agency learns that a crop is maturing
earlier than expected or that other material factors, including weather
conditions and recruitment levels, have changed, the agency shall
immediately contact the labor supply State agency, who shall in turn
immediately inform crews and families scheduled through the JS clearance
system of the changed circumstances and adjust arrangements on behalf of
such crews of families.
(b) When there is a delay in the date of need, procedures required
of employers and workers at Sec. 653.501(d)(2)(v) shall be followed.
State agencies shall document notifications by employers and contacts by
individual migrant workers or crew leaders on behalf of migrant workers
or family heads on behalf of migrant family members to verify the date
of need.
(c) In addition, if weather conditions, overrecruitment or other
conditions have eliminated the scheduled job opportunities, the State
agencies involved shall make every effort to place the workers in
alternate job opportunities as soon as possible, especially if the
worker(s) is already enroute or at the job site. JS staff shall keep
records of actions under this section.
Sec. 653.503 Field checks.
(a) The State agency, through its local offices or otherwise, shall
conduct random, unannounced field checks at a significant number of
agricultural worksites to which JS placements have been made through the
intrastate or interstate clearance system. These field checks shall
include visit(s) to the worksite at a time when workers are there. Both
the employees and the employer shall be consulted, and JS shall
determine and document whether wages, hours, working and housing
conditions are as specified in job orders. JS staff shall keep records
of all field checks. If State agency personnel observe or receive
information, or otherwise have reason to believe that conditions are not
as stated on the job order or that an employer is violating an
employment related law, the State agency shall document the finding and
attempt informal resolution. If the matter has not been resolved within
5 working days, the State agency shall follow the procedures set forth
at subpart F of part 658 of this chapter. Violations of employment
related laws shall be referred to appropriate enforcement agencies in
writing.
(b) State agencies, to the maximum extent possible, shall make
formal or informal arrangements with appropriate State and Federal
enforcement agencies pursuant to which such agencies will agree to
conduct compliance reviews in their areas of enforcement responsibility
at agricultural worksites where the State agency has placed workers
through the agricultural clearance system and to inform the State agency
if violations are found. An enforcement agency compliance review shall
satisfy the requirement for State agency field checks where all aspects
of wages, hours, working and housing conditions have been reviewed by
the enforcement agency reviews. The State agency shall supplement
enforcement agency efforts with field checks focusing on areas not
addressed by enforcement agencies. State agencies shall report
difficulties in making such formal or informal arrangements with State
[[Page 291]]
enforcement agencies as well as deficiencies in State enforcement agency
activities to the Regional Farm Labor Coordinated Enforcement Committee.
(Approved by the Office of Management and Budget under control number
1205-0039)
(Pub. L. No. 96-511, 94 Stat. 2812 (44 U.S.C. 3501 et seq.))
[46 FR 39466, June 10, 1980, as amended at 47 FR 145, Jan. 5, 1982]
PART 654_SPECIAL RESPONSIBILITIES OF THE EMPLOYMENT SERVICE SYSTEM
Subpart A_Responsibilities Under Executive Order 12073
Sec.
654.1 Purpose of subpart.
654.3 Description of Executive Order 12073.
654.4 Definitions.
654.5 Classification of labor surplus areas.
654.6 Termination of classification.
654.7 Publication of area classifications.
654.8 Services to firms and individuals in labor surplus areas.
654.9 Filing of complaints.
654.10 Transition provisions.
Subpart B_Responsibilities Under Executive Order 10582
654.11 Purpose of subpart.
654.12 Description of Executive Order 10582.
654.13 Determination of areas of substantial unemployment.
654.14 Filing of complaints.
Subparts C-D [Reserved]
Subpart E_Housing for Agricultural Workers
Purpose and Applicability
654.400 Scope and purpose.
654.401 Applicability; transitional provisions.
654.402 Variances.
654.403 Conditional access to the intrastate or interstate clearance
system.
Housing Standards
654.404 Housing site.
654.405 Water supply.
654.406 Excreta and liquid waste disposal.
654.407 Housing.
654.408 Screening.
654.409 Heating.
654.410 Electricity and lighting.
654.411 Toilets.
654.412 Bathing, laundry, and handwashing.
654.413 Cooking and eating facilities.
654.414 Garbage and other refuse.
654.415 Insect and rodent control.
654.416 Sleeping facilities.
654.417 Fire, safety, and first aid.
Source: 44 FR 1689, Jan. 5, 1979, unless otherwise noted.
Subpart A_Responsibilities Under Executive Order 12073
Authority: 41 U.S.C. 10a et seq; 29 U.S.C. 49 et seq; 15 U.S.C.
644(n); E.O. 12073; 10582, as amended by E.O. 11051 and 12148.
Sec. 654.1 Purpose of subpart.
This subpart implements the responsibilities of the Secretary of
Labor in classifying labor surplus areas in accordance with Executive
Order 12073 (Federal Procurement in Labor Surplus Areas). The Secretary
of Labor has delegated responsibilities to the Assistant Secretary,
Employment and Training Administration.
[44 FR 1689, Jan. 5, 1979, as amended at 48 FR 15616, Apr. 12, 1983]
Sec. 654.3 Description of Executive Order 12073.
Executive Order 12073 requires executive agencies to emphasize
procurement set-asides in labor surplus areas. The Secretary of Labor is
responsible under this order for classifying and designating labor
surplus areas.
[44 FR 1689, Jan. 5, 1979, as amended at 48 FR 15616, Apr. 12, 1983]
Sec. 654.4 Definitions.
(a) Assistant Secretary shall mean Assistant Secretary for
Employment and Training, U.S. Department of Labor.
(b) Civil jurisdiction shall mean:
(1) Cities of 25,000 or more population on the basis of the most
recently available Bureau of the Census estimates; or
(2) Towns and townships in the States of New Jersey, New York,
Michigan, and Pennsylvania of 25,000 or more population and which
possess powers and functions similar to cities; or
(3) All counties, except those counties which contain any of the
types of political jurisdictions defined in paragraphs (b) (1) and (2)
of this section; or
(4) All other counties are defined as ``balance of county'' (i.e.,
total county
[[Page 292]]
less component cities and townships identified in paragraphs (b) (1) and
(2) of this section); or
(5) County equivalents which are towns in the States of
Massachusetts, Rhode Island and Connecticut.
(c) Labor surplus area shall mean a civil jurisdiction that, in
accordance with the criteria specified in Sec. 654.5, has been
classified as a labor surplus area.
(d) Reference period shall mean the two year period ending December
31 of the year prior to the October 1 annual date of eligibility
determination.
[44 FR 1689, Jan. 5, 1979, as amended at 44 FR 26071, May 5, 1979; 48 FR
15616, Apr. 12, 1983; 53 FR 23347, June 21, 1988]
Sec. 654.5 Classification of labor surplus areas.
(a) Basic criteria. The Assistant Secretary shall classify a civil
jurisdiction as a labor surplus area whenever, as determined by the
Bureau of Labor Statistics, the average unemployment rate for all
civilian workers in the civil jurisdiction for the reference period is
(1) 120 percent of the national average unemployment rate for civilian
workers or higher for the reference period as determined by the Bureau
of Labor Statistics, or (2) 10 percent or higher. No civil jurisdiction
shall be classified as a labor surplus area if the average unemployment
rate for all civilian workers for the reference period is less than 6.0
percent.
(b) Criteria for exceptional circumstances. The Assistant Secretary,
upon petition submitted by the appropriate State Workforce Agency, may
classify a civil jurisdiction, a Metropolitan Statistical Area, or a
Primary Metropolitan Statistical Area as a labor surplus area whenever
such an area meets or is expected to meet the unemployment tests
established under Sec. 654.5(a) as a result of exceptional
circumstances. For purposes of this paragraph ``exceptional
circumstances'' shall mean catastrophic events, such as natural
disasters, plant closings, and contract cancellations expected to have a
long-term impact on labor market area conditions, discounting temporary
or seasonal factors. For purposes of this paragraph, ``Metropolitan
Statistical Area'' and ``Primary Metropolitan Statistical Area'' shall
mean the areas officially defined and designated as such by the Office
of Management and Budget.
(Approved by OMB under control number 1205-0207)
[48 FR 15616, Apr. 12, 1983, as amended at 53 FR 23347, June 21, 1988;
71 FR 35518, June 21, 2006]
Sec. 654.6 Termination of classification.
(a) Basic procedure. The Assistant Secretary shall terminate the
classification of a civil jurisdiction as a labor surplus area after any
year in which the Assistant Secretary determines that the criteria
established under Sec. 654.5 (a) are no longer met.
(b) Procedure for exceptional circumstances. The Assistant Secretary
shall terminate the classification of a civil jurisdiction classified as
a labor surplus area pursuant to the provisions of Sec. 654.5(b) after
any year in which the Assistant Secretary determines that the
exceptional circumstances criteria of that paragraph are no longer met.
[44 FR 1689, Jan. 5, 1979, as amended at 48 FR 15616, Apr. 12, 1983]
Sec. 654.7 Publication of area classifications.
The Assistant Secretary shall publish annually a list of labor
surplus areas together with geographic descriptions thereof. The
Assistant Secretary periodically may cause these lists to be published
in the Federal Register.
[44 FR 1689, Jan. 5, 1979, as amended at 48 FR 15616, Apr. 12, 1983]
Sec. 654.8 Services to firms and individuals in labor surplus areas.
To carry out the purposes and policy objectives of Executive Order
12073 and Executive Order 10582, the Assistant Secretary shall cooperate
with and assist the State Workforce Agencies and the Secretary of
Commerce, as appropriate, to:
(a) Provide relevant labor market data and related economic
information to assist in the initiation of industrial expansion programs
in labor surplus areas;
(b) Identify upon request the skills and numbers of unemployed
persons available for work in labor surplus areas, providing such
information to
[[Page 293]]
firms interested in establishing new plants and facilities or expanding
existing plants and facilities in such areas;
(c) Identify the occupational composition and skill requirements of
industries contemplating locating in labor surplus areas and make such
information available to training and apprenticeship agencies and
resources in the community for purposes of appropriate training and
skill development;
(d) Identify unemployed individuals in need of, and having the
potential for, training in occupations and skills required by new or
expanding industries and refer such individuals to appropriate training
opportunities;
(e) Receive job openings on a voluntary basis and/or under the
mandatory listing program provided by 38 U.S.C. 2012 and Executive Order
11701 and refer qualified unemployed workers to such openings, making
appropriate efforts to refer to such openings qualified individuals who
reside in the labor surplus area.
[44 FR 1689, Jan. 5, 1979, as amended at 48 FR 15616, Apr. 12, 1983; 71
FR 35518, June 21, 2006]
Sec. 654.9 Filing of complaints.
Complaints alleging that the Department of Labor has violated the
labor surplus area regulations should be mailed to the Assistant
Secretary for Employment and Training, U.S. Department of Labor,
Washington, DC 20210. Such complaints should include: (a) The
allegations of wrongdoing; (b) the date of the incident; and (c) any
other relevant information available to the complainant. The Assistant
Secretary shall make a determination and respond to the complainant
after investigation of the incident. If the complaint is not resolved
following this investigation, the Assistant Secretary, at his
discretion, may offer, in writing by certified mail, the complainant a
hearing before a Department of Labor Administrative Law Judge, provided
that the complainant requests such a hearing from the Assistant
Secretary within 20 working days of the certified date of receipt of the
Assistant Secretary's offer of a hearing.
[48 FR 15616, Apr. 12, 1983]
Sec. 654.10 Transition provisions.
The annual list of labor surplus areas for the period June 1, 1982,
through May 31, 1983, shall be extended through September 30, 1983.
[48 FR 15616, Apr. 12, 1983]
Subpart B_Responsibilities Under Executive Order 10582
Authority: 41 U.S.C. 10a et seq.; 29 U.S.C. 49 et seq.; 15 U.S.C.
644(n); E.O. 12073, E.O. 10582 as amended by E.O. 11051 and 12148.
Sec. 654.11 Purpose of subpart.
This subpart implements the responsibilities of the Secretary of
Labor in determining areas of substantial unemployment in accordance
with Executive Order 10582 issued pursuant to the Buy American Act, 41
U.S.C. 10a et seq.
Sec. 654.12 Description of Executive Order 10582.
(a) Under the Buy American Act, heads of executive agencies are
required to determine, as a condition precedent to the purchase by their
agencies of materials of foreign origin for public use within the United
States, (1) that the price of like materials of domestic origin is
unreasonable, or (2) that the purchase of like materials of domestic
origin is inconsistent with the public interest.
(b) Section 3(c) of Executive Order 10582 issued pursuant to the Buy
American Act permits executive agencies to reject a bid or offer to
furnish materials of foreign origin in any situation in which the
domestic supplier, offering the lowest price for furnishing the desired
materials, undertakes to produce substantially all of the materials in
areas of substantial unemployment, as determined by the Secretary of
Labor.
Sec. 654.13 Determination of areas of substantial unemployment.
An area of substantial unemployment, for purposes of Executive Order
10582, shall be any area classified as a labor surplus area at Sec.
654.5 of this part pursuant to the procedures set forth at subpart A of
this part.
[[Page 294]]
Sec. 654.14 Filing of complaints.
Complaints arising under subpart B of this part alleging that the
Department of Labor has violated the labor surplus area regulations
shall be made pursuant to the procedures set forth at Sec. 654.9 of
this part.
[48 FR 15616, Apr. 12, 1983]
Subparts C-D [Reserved]
Subpart E_Housing for Agricultural Workers
Authority: 29 U.S.C. 49k; 8 U.S.C. 1188(c)(4); 41 Op.A.G. 406
(1959).
Source: 45 FR 14182, Mar. 4, 1980, unless otherwise noted.
Purpose and Applicability
Sec. 654.400 Scope and purpose.
(a) This subpart sets forth the Employment and Training
Administration standards for agricultural housing. Local Job Service
offices, as part of the State employment service agencies and in
cooperation with the United States Employment Service, assist employers
in recruiting agricultural workers from places outside the area of
intended employment. The experiences of the employment service indicate
that employees so referred have on many occasions been provided with
inadequate, unsafe, and unsanitary housing conditions. To discourage
this practice, it is the policy of the Federal-State employment service
system, as set forth in Sec. 653.108 of this chapter, to deny its
intrastate and interstate recruitment services to employers until the
State employment service agency has ascertained that the employer's
housing meets certain standards.
(b) To implement this policy, Sec. 653.108 of this chapter provides
that recruitment services shall be denied unless the employer has signed
an assurance, a preoccupancy inspection has been conducted and the ES
staff has ascertained that, with respect to intrastate clearance, if the
workers are to be housed, the employer's housing meets or, with respect
to interstate clearance, that the employer will provide housing for the
workers which meets either the full set of standards set forth at 29 CFR
1910.142 or the full set of standards set forth in this subpart.
Whichever is applicable under the criteria set forth in Sec. 654.401;
except that for mobile range housing for sheepherders, the housing shall
meet existing Departmental guidelines.
[45 FR 14182, Mar. 4, 1980; 45 FR 22901, Apr. 4, 1980]
Sec. 654.401 Applicability; transitional provisions.
(a) Employers whose housing was constructed in accordance with the
ETA housing standards may continue to follow the full set of ETA
standards set forth in this subpart only where prior to April 3, 1980
the housing was completed or under construction, or where prior to March
4, 1980 a contract for the construction of the specific housing was
signed.
(b) To effectuate these transitional provisions, agricultural
housing to which this subpart applies and which complies with the full
set of standards set forth in this subpart shall be considered to be in
compliance with the Occupational Safety and Health Administration
temporary labor camp standards at 29 CFR 1910.142.
Sec. 654.402 Variances.
(a) An employer may apply for a permanent, structural variance from
a specific standard(s) in this subpart by filing a written application
for such a variance with the local Job Service office serving the area
in which the housing is located. This application must be filed by June
2, 1980 and must:
(1) Clearly specify the standard(s) from which the variance is
desired;
(2) Provide adequate justification that the variance is necessary to
obtain a beneficial use of an existing facility, and to prevent a
practical difficulty or unnecessary hardship; and
(3) Clearly set forth the specific alternative measures which the
employer has taken to protect the health and safety of workers and
adequately show that such alternative measures have achieved the same
result as the standard(s) from which the employer desires the variance.
(b) Upon receipt of a written request for a variance under paragraph
(a) of
[[Page 295]]
this section, the local Job Service office shall send the request to the
State office which, in turn, shall forward it to the Regional
Administrator, Employment and Training Administration (RA). The RA shall
review the matter and, after consultation with OSHA, shall either grant
or deny the request for a variance.
(c) The variance granted by the RA shall be in writing, shall state
the particular standard(s) involved, and shall state as conditions of
the variance the specific alternative measures which have been taken to
protect the health and safety of the workers. The RA shall send the
approved variance to the employer and shall send copies to the Regional
Administrator of the Occupational Safety and Health Administration, the
Regional Administrator of the Employment Standards Administration, and
the appropriate State agency and the local Job Service office. The
employer shall submit and the local Job Service office shall attach
copies of the approved variance to each of the employer's job orders
which is placed into intrastate or interstate clearance.
(d) If the RA denies the request for a variance, the RA shall
provide written notice stating the reasons for the denial to the
employer, the appropriate State agency and the local Job Service office.
The notice shall also offer the employer an opportunity to request a
hearing before a DOL Hearing Officer, provided the employer requests
such a hearing from the RA within 30 calendar days of the date of the
notice. The request for a hearing shall be handled in accordance with
the employment service complaint procedures set forth at Sec. Sec.
658.421 (i) and (j), 658.422 and 658.423 of this chapter.
(e) The procedures of paragraphs (a) through (d) of this section
shall only apply to an employer who has chosen, as evidenced by its
written request for a variance, to comply with the ETA housing standards
at Sec. Sec. 654.404-654.417 of this subpart.
Sec. 654.403 Conditional access to the intrastate or interstate
clearance system.
(a) Filing requests for conditional access--(1) ``Noncriteria''
employers. Except as provided in paragraph (a)(2) of this section, an
employer whose housing does not meet applicable standards may file with
the local Job Service office serving the area in which its housing is
located, a written request that its job orders be conditionally allowed
into the intrastate or interstate clearance system, provided that the
employer's request assures that its housing will be in full compliance
with the requirements of the applicable housing standards at least 20
calendar days (giving the specific date) before the housing is to be
occupied.
(2) ``Criteria'' employers. If the request for conditional access
described in paragraph (a)(1) of this section is from an employer filing
a job order pursuant to an application for temporary alien agricultural
labor certification for H-2A alien agricultural workers or H-2 alien
workers under subpart B or subpart C, respectively, of part 655 of this
chapter, the request shall be filed with the RA as an attachment to the
application for temporary alien agricultural labor certification.
(3) Assurance. The employer's request pursuant to paragraphs (a)(1)
or (a)(2) of this section shall contain an assurance that the housing
will be in full compliance with the applicable housing standards at
least 20 calendar days (stating the specific date) before the housing is
to be occupied.
(b) Processing requests--(1) State agency processing. Upon receipt
of a written request for conditional access to the intrastate or
interstate clearance system under paragraph (a)(1) of this section, the
local Job Service office shall send the request to the State office,
which, in turn, shall forward it to the Regional Administrator,
Employment and Training Administration, (RA).
(2) Regional office processing and determination. Upon receipt of a
request for conditional access pursuant to paragraph (a)(2) or paragraph
(b)(1) of this section, the RA shall review the matter and, as
appropriate, shall either grant or deny the request.
(c) Authorization. The authorization for conditional access to the
intrastate or interstate clearance system shall be in writing, and shall
state that although the housing does not comply with the applicable
standards, the employer's job order may be placed into
[[Page 296]]
intrastate or interstate clearance until a specified date. The RA shall
send the authorization to the employer and shall send copies to the
appropriate State agency and local Job Service office. The employer
shall submit and the local Job Service shall attach copies of the
authorization to each of the employer's job orders which is placed into
intrastate or interstate clearance.
(d) Notice of denial. If the RA denies the request for conditional
access to the intrastate or interstate clearance system, the RA shall
provide written notice to the employer, the appropriate State agency,
and the local Job Service office, stating the reasons for the denial.
(e) Inspection. (1) The local Job Service office serving the area
containing the housing of any employer granted conditional access to the
intrastate or interstate clearance system shall assure that the housing
is inspected no later than the date by which the employer has promised
to have its housing in compliance with the requirements of this subpart.
An employer, however, may request an earlier preliminary inspection. If,
on the date set forth in the authorization, the housing is not in full
compliance with the applicable housing standards as assured in the
request for conditional access, the local Job Service office shall
afford the employer five calendar days to bring the housing into full
compliance. After the five-calendar-day period, if the housing is not in
full compliance with the applicable housing standards as assured in the
request for conditional access, the local Job Service office
immediately:
(i) Shall notify the RA;
(ii) Shall remove the employer's job orders from intrastate and
interstate clearance; and
(iii) Shall, if workers have been recruited against these orders, in
cooperation with the employment service agencies in other States, make
every reasonable attempt to locate and notify the appropriate crew
leaders or workers, and to find alternative and comparable employment
for the workers.
[52 FR 20506, June 1, 1987, as amended at 64 FR 34965, June 29, 1999]
Housing Standards
Sec. 654.404 Housing site.
(a) Housing sites shall be well drained and free from depressions in
which water may stagnate. They shall be located where the disposal of
sewage is provided in a manner which neither creates nor is likely to
create a nuisance, or a hazard to health.
(b) Housing shall not be subject to, or in proximity to conditions
that create or are likely to create offensive odors, flies, noise,
traffic, or any similar hazards.
(c) Grounds within the housing site shall be free from debris,
noxious plants (poison ivy, etc.) and uncontrolled weeds or brush.
(d) The housing site shall provide a space for recreation reasonably
related to the size of the facility and the type of occupancy.
Sec. 654.405 Water supply.
(a) An adequate and convenient supply of water that meets the
standards of the State health authority shall be provided.
(b) A cold water tap shall be available within 100 feet of each
individual living unit when water is not provided in the unit. Adequate
drainage facilities shall be provided for overflow and spillage.
(c) Common drinking cups shall not be permitted.
Sec. 654.406 Excreta and liquid waste disposal.
(a) Facilities shall be provided and maintained for effective
disposal of excreta and liquid waste. Raw or treated liquid waste shall
not be discharged or allowed to accumulate on the ground surface.
(b) Where public sewer systems are available, all facilities for
disposal of excreta and liquid wastes shall be connected thereto.
(c) Where public sewers are not available, a subsurface septic tank-
seepage system or other type of liquid waste treatment and disposal
system, privies or portable toilets shall be provided. Any requirements
of the State health authority shall be complied with.
[[Page 297]]
Sec. 654.407 Housing.
(a) Housing shall be structurally sound, in good repair, in a
sanitary condition and shall provide protection to the occupants against
the elements.
(b) Housing shall have flooring constructed of rigid materials,
smooth finished, readily cleanable, and so located as to prevent the
entrance of ground and surface water.
(c) The following space requirements shall be provided:
(1) For sleeping purposes only in family units and in dormitory
accommodations using single beds, not less than 50 square feet of floor
space per occupant;
(2) For sleeping purposes in dormitory accommodations using double
bunk beds only, not less than 40 square feet per occupant;
(3) For combined cooking, eating, and sleeping purposes not less
than 60 square feet of floor space per occupant.
(d) Housing used for families with one or more children over 6 years
of age shall have a room or partitioned sleeping area for the husband
and wife. The partition shall be of rigid materials and installed so as
to provide reasonable privacy.
(e) Separate sleeping accommodations shall be provided for each sex
or each family.
(f) Adequate and separate arrangements for hanging clothing and
storing personal effects for each person or family shall be provided.
(g) At least one-half of the floor area in each living unit shall
have a minimum ceiling height of 7 feet. No floor space shall be counted
toward minimum requirements where the ceiling height is less than 5
feet.
(h) Each habitable room (not including partitioned areas) shall have
at least one windown or skylight opening directly to the out-of-doors.
The minimum total window or skylight area, including windows in doors,
shall equal at least 10 percent of the usable floor area. The total
openable area shall equal at least 45 percent of the minimum window or
skylight area required, except where comparably adequate ventilation is
supplied by mechanical or some other method.
Sec. 654.408 Screening.
(a) All outside openings shall be protected with screening of not
less than 16 mesh.
(b) All screen doors shall be tight fitting, in good repair, and
equipped with self-closing devices.
Sec. 654.409 Heating.
(a) All living quarters and service rooms shall be provided with
properly installed, operable heating equipment capable of maintaining a
temperature of at least 68 [deg]F. if during the period of normal
occupancy the temperature in such quarters falls below 68[deg].
(b) Any stoves or other sources of heat utilizing combustible fuel
shall be installed and vented in such a manner as to prevent fire
hazards and a dangerous concentration of gases. No portable heaters
other than those operated by electricity shall be provided. If a solid
or liquid fuel stove is used in a room with wooden or other combustible
flooring, there shall be a concrete slab, insulated metal sheet, or
other fireproof material on the floor under each stove, extending at
least 18 inches beyond the perimeter of the base of the stove.
(c) Any wall or ceiling within 18 inches of a solid or liquid fuel
stove or a stovepipe shall be of fireproof material. A vented metal
collar shall be installed around a stovepipe, or vent passing through a
wall, ceiling, floor or roof.
(d) When a heating system has automatic controls, the controls shall
be of the type which cut off the fuel supply upon the failure or
interruption of the flame or ignition, or whenever a predetermined safe
temperature or pressure is exceeded.
[45 FR 14182, Mar. 4, 1980; 45 FR 22901, Apr. 4, 1980]
Sec. 654.410 Electricity and lighting.
(a) All housing sites shall be provided with electric service.
(b) Each habitable room and all common use rooms, and areas such as:
Laundry rooms, toilets, privies, hallways, stairways, etc., shall
contain adequate ceiling or wall-type light fixtures. At least one wall-
type electrical
[[Page 298]]
convenience outlet shall be provided in each individual living room.
(c) Adequate lighting shall be provided for the yard area, and
pathways to common use facilities.
(d) All wiring and lighting fixtures shall be installed and
maintained in a safe condition.
Sec. 654.411 Toilets.
(a) Toilets shall be constructed, located and maintained so as to
prevent any nuisance or public health hazard.
(b) Water closets or privy seats for each sex shall be in the ratio
of not less than one such unit for each 15 occupants, with a minimum of
one unit for each sex in common use facilities.
(c) Urinals, constructed of nonabsorbent materials, may be
substituted for men's toilet seats on the basis of one urinal or 24
inches of trough-type urinal for one toilet seat up to a maximum of one-
third of the required toilet seats.
(d) Except in individual family units, separate toilet
accommodations for men and women shall be provided. If toilet facilities
for men and women are in the same building, they shall be separated by a
solid wall from floor to roof or ceiling. Toilets shall be distinctly
marked ``men'' and ``women'' in English and in the native language of
the persons expected to occupy the housing.
(e) Where common use toilet facilities are provided, an adequate and
accessible supply of toilet tissue, with holders, shall be furnished.
(f) Common use toilets and privies shall be well lighted and
ventilated and shall be clean and sanitary.
(g) Toilet facilities shall be located within 200 feet of each
living unit.
(h) Privies shall not be located closer than 50 feet from any living
unit or any facility where food is prepared or served.
(i) Privy structures and pits shall be fly tight. Privy pits shall
have adequate capacity for the required seats.
Sec. 654.412 Bathing, laundry, and handwashing.
(a) Bathing and handwashing facilities, supplied with hot and cold
water under pressure, shall be provided for the use of all occupants.
These facilities shall be clean and sanitary and located within 200 feet
of each living unit.
(b) There shall be a minimum of 1 showerhead per 15 persons.
Showerheads shall be spaced at least 3 feet apart, with a minimum of 9
square feet of floor space per unit. Adequate, dry dressing space shall
be provided in common use facilities. Shower floors shall be constructed
of nonabsorbent nonskid materials and sloped to properly constructed
floor drains. Except in individual family units, separate shower
facilities shall be provided each sex. When common use shower facilities
for both sexes are in the same building they shall be separated by a
solid nonabsorbent wall extending from the floor to ceiling, or roof,
and shall be plainly designated ``men'' or ``women'' in English and in
the native language of the persons expected to occupy the housing.
(c) Lavatories or equivalent units shall be provided in a ratio of 1
per 15 persons.
(d) Laundry facilities, supplied with hot and cold water under
pressure, shall be provided for the use of all occupants. Laundry trays
or tubs shall be provided in the ratio of 1 per 25 persons. Mechanical
washers may be provided in the ratio of 1 per 50 persons in lieu of
laundry trays, although a minimum of 1 laundry tray per 100 persons
shall be provided in addition to the mechanical washers.
Sec. 654.413 Cooking and eating facilities.
(a) When workers or their families are permitted or required to cook
in their individual unit, a space shall be provided and equipped for
cooking and eating. Such space shall be provided with:
(1) A cookstove or hot plate with a minimum of two burners; and (2)
adequate food storage shelves and a counter for food preparation; and
(3) provisions for mechanical refrigeration of food at a temperature of
not more than 45 [deg]F.; and (4) a table and chairs or equivalent
seating and eating arrangements, all commensurate with the capacity of
the unit; and (5) adequate lighting and ventilation.
(b) When workers or their families are permitted or required to cook
and
[[Page 299]]
eat in a common facility, a room or building separate from the sleeping
facilities shall be provided for cooking and eating. Such room or
building shall be provided with:
(1) Stoves or hot plates, with a minimum equivalent of two burners,
in a ratio of 1 stove or hot plate to 10 persons, or 1 stove or hot
plate to 2 families; and (2) adequate food storage shelves and a counter
for food preparation; and (3) mechanical refrigeration for food at a
temperature of not more than 45 [deg]F.; and (4) tables and chairs or
equivalent seating adequate for the intended use of the facility; and
(5) adequate sinks with hot and cold water under pressure; and (6)
adequate lighting and ventilation; and (7) floors shall be of
nonabsorbent, easily cleaned materials.
(c) When central mess facilities are provided, the kitchen and mess
hall shall be in proper proportion to the capacity of the housing and
shall be separate from the sleeping quarters. The physical facilities,
equipment and operation shall be in accordance with provisions of
applicable State codes.
(d) Wall surface adjacent to all food preparation and cooking areas
shall be of nonabsorbent, easily cleaned material. In addition, the wall
surface adjacent to cooking areas shall be of fire-resistant material.
Sec. 654.414 Garbage and other refuse.
(a) Durable, fly-tight, clean containers in good condition of a
minimum capacity of 20 gallons, shall be provided adjacent to each
housing unit for the storage of garbage and other refuse. Such
containers shall be provided in a minimum ratio of 1 per 15 persons.
(b) Provisions shall be made for collection of refuse at least twice
a week, or more often if necessary. The disposal of refuse, which
includes garbage, shall be in accordance with State and local law.
Sec. 654.415 Insect and rodent control.
Housing and facilities shall be free of insects, rodents, and other
vermin.
Sec. 654.416 Sleeping facilities.
(a) Sleeping facilities shall be provided for each person. Such
facilities shall consist of comfortable beds, cots, or bunks, provided
with clean mattresses.
(b) Any bedding provided by the housing operator shall be clean and
sanitary.
(c) Triple deck bunks shall not be provided.
(d) The clear space above the top of the lower mattress of a double
deck bunk and the bottom of the upper bunk shall be a minimum of 27
inches. The distance from the top of the upper mattress to the ceiling
shall be a minimum of 36 inches.
(e) Beds used for double occupancy may be provided only in family
accommodations.
Sec. 654.417 Fire, safety, and first aid.
(a) All buildings in which people sleep or eat shall be constructed
and maintained in accordance with applicable State or local fire and
safety laws.
(b) In family housing and housing units for less than 10 persons, of
one story construction, two means of escape shall be provided. One of
the two required means of escape may be a readily accessible window with
an openable space of not less than 24x24 inches.
(c) All sleeping quarters intended for use by 10 or more persons,
central dining facilities, and common assembly rooms shall have at least
two doors remotely separated so as to provide alternate means of escape
to the outside or to an interior hall.
(d) Sleeping quarters and common assembly rooms on the second story
shall have a stairway, and a permanent, affixed exterior ladder or a
second stairway.
(e) Sleeping and common assembly rooms located above the second
story shall comply with the State and local fire and building codes
relative to multiple story dwellings.
(f) Fire extinguishing equipment shall be provided in a readily
accessible place located not more than 100 feet from each housing unit.
Such equipment shall provide protection equal to a 2\1/2\ gallon stored
pressure or 5-gallon pump-type water extinguisher.
(g) First aid facilities shall be provided and readily accessible
for use at
[[Page 300]]
all time. Such facilities shall be equivalent to the 16 unit first aid
kit recommended by the American Red Cross, and provided in a ratio of 1
per 50 persons.
(h) No flammable or volatile liquids or materials shall be stored in
or adjacent to rooms used for living purposes, except for those needed
for current household use.
(i) Agricultural pesticides and toxic chemicals shall not be stored
in the housing area.
PART 655_TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES
Sec.
655.0 Purpose and scope of part.
655.00 Authority of the Office of Foreign Labor Certification (OFLC)
Administrator under subparts A, B, and C.
Subpart A_Labor Certification Process and Enforcement of Attestations
for Temporary Employment in Occupations Other Than Agriculture or
Registered Nursing in the United States (H 2B Workers)
655.1 Scope and purpose of subpart A.
655.2 Authority of the agencies, offices, and divisions in the
Department of Labor.
655.3 Territory of Guam.
655.4 Special procedures.
655.5 Definitions of terms.
655.6 Temporary need.
655.7 Persons and entities authorized to file.
655.8 Requirements for agents.
655.9 Disclosure of foreign worker recruitment.
Prefiling Procedures
655.10 Determination of prevailing wage for temporary labor
certification purposes.
655.11 Registration of H-2B employers.
655.12 Use of registration of H-2B employers.
655.13 Review of PWDs.
655.14 [Reserved]
Application for Temporary Employment Certification Filing Procedures
655.15 Application filing requirements.
655.16 Filing of the job order at the SWA.
655.17 Emergency situations.
655.18 Job order assurances and contents.
655.19 Job contractor filing requirements.
Assurances and Obligations
655.20 Assurances and obligations of H-2B employers.
655.21-655.29 [Reserved]
Processing of an Application for Temporary Employment Certification
655.30 Processing of an application and job order.
655.31 Notice of deficiency.
655.32 Submission of a modified application or job order.
655.33 Notice of acceptance.
655.34 Electronic job registry.
655.35 Amendments to an application or job order.
655.36-655.39 [Reserved]
Post-Acceptance Requirements
655.40 Employer-conducted recruitment.
655.41 Advertising requirements.
655.42 Newspaper advertisements.
655.43 Contact with former U.S. employees.
655.44 [Reserved]
655.45 Contact with bargaining representative, posting and other contact
requirements.
655.46 Additional employer-conducted recruitment.
655.47 Referrals of U.S. workers.
655.48 Recruitment report.
655.49 [Reserved]
Labor Certification Determinations
655.50 Determinations.
655.51 Criteria for certification.
655.52 Approved certification.
655.53 Denied certification.
655.54 Partial certification.
655.55 Validity of temporary labor certification.
655.56 Document retention requirements of H-2B employers.
655.57 Request for determination based on nonavailability of U.S.
workers.
655.58-655.59 [Reserved]
655.60 Extensions.
655.61 Administrative review.
655.62 Withdrawal of an Application for Temporary Employment
Certification.
655.63 Public disclosure.
655.64-655.69 [Reserved]
Integrity Measures
655.70 Audits.
655.71 CO-ordered assisted recruitment.
655.72 Revocation.
655.73 Debarment.
655.74-655.76 [Reserved]
655.80 [Reserved]
655.81 Application filing transition.
655.82-655.99 [Reserved]
Subpart B_Labor Certification Process for Temporary Agricultural
Employment in the United States (H 2A Workers)
655.100 Scope and purpose of subpart B.
[[Page 301]]
655.101 Authority of the Office of Foreign Labor Certification (OFLC)
administrator.
655.102 Special procedures.
655.103 Overview of this subpart and definition of terms.
Prefiling Procedures
655.120 Offered wage rate.
655.121 Job orders.
655.122 Contents of job offers.
Application for Temporary Employment Certification Filing Procedures
655.130 Application filing requirements.
655.131 Association filing requirements.
655.132 H-2A labor contractor (H-2ALC) filing requirements.
655.133 Requirements for agents.
655.134 Emergency situations.
655.135 Assurances and obligations of H-2A employers.
Processing of Application for Temporary Employment Certification
655.140 Review of applications.
655.141 Notice of deficiency.
655.142 Submission of modified applications.
655.143 Notice of acceptance.
655.144 Electronic job registry.
655.145 Amendments to applications for temporary employment
certification.
Post-Acceptance Requirements
655.150 Interstate clearance of job order.
655.151 Newspaper advertisements.
655.152 Advertising requirements.
655.153 Contact with former U.S. employees.
655.154 Additional positive recruitment.
655.155 Referrals of U.S. workers.
655.156 Recruitment report.
655.157 Withholding of U.S. workers prohibited.
655.158 Duration of positive recruitment.
Labor Certification Determinations
655.160 Determinations.
655.161 Criteria for certification.
655.162 Approved certification.
655.163 Certification fee.
655.164 Denied certification.
655.165 Partial certification.
655.166 Requests for determinations based on nonavailability of U.S.
workers.
655.167 Document retention requirements.
Post Certification
655.170 Extensions.
655.171 Appeals.
655.172 Withdrawal of job order and application for temporary employment
certification.
655.173 Setting meal charges; petition for higher meal charges.
655.174 Public disclosure.
Integrity Measures
655.180 Audit.
655.181 Revocation.
655.182 Debarment.
655.183 Less than substantial violations.
655.184 Applications involving fraud or willful misrepresentation.
655.185 Job service complaint system; enforcement of work contracts.
Subparts C-E [Reserved]
Subpart F_Attestations by Employers Using Alien Crewmembers for
Longshore Activities in U.S. Ports
General Provisions
655.500 Purpose, procedure and applicability of subparts F and G of this
part.
655.501 Overview of responsibilities.
655.502 Definitions.
655.510 Employer attestations.
655.520 Special provisions regarding automated vessels.
Alaska Exception
655.530 Special provisions regarding the performance of longshore
activities at locations in the State of Alaska.
655.531 Who may submit attestations for locations in Alaska?
655.532 Where and when should attestations be submitted for locations in
Alaska?
655.533 What should be submitted for locations in Alaska?
655.534 The first attestation element for locations in Alaska: Bona fide
request for dispatch of United States longshore workers.
655.535 The second attestation element for locations in Alaska:
Employment of United States longshore workers.
655.536 The third attestation element for locations in Alaska: No
intention or design to influence bargaining representative
election.
655.537 The fourth attestation element for locations in Alaska: Notice
of filing.
655.538 Actions on attestations submitted for filing for locations in
Alaska.
655.539 Effective date and validity of filed attestations for locations
in Alaska.
655.540 Suspension or invalidation of filed attestations for locations
in Alaska.
655.541 Withdrawal of accepted attestations for locations in Alaska.
Public Access
655.550 Public access.
[[Page 302]]
Appendix A to Subpart F--U.S. Seaports
Subpart G_Enforcement of the Limitations Imposed on Employers Using
Alien Crewmembers for Longshore Activities in U.S. Ports
655.600 Enforcement authority of Administrator, Wage and Hour Division.
655.605 Complaints and investigative procedures.
655.610 Automated vessel exception to prohibition on utilization of
alien crewmember(s) to perform longshore activity(ies) at a
U.S. port.
655.615 Cease and desist order.
655.620 Civil money penalties and other remedies.
655.625 Written notice, service and Federal Register publication of
Administrator's determination.
655.630 Request for hearing.
655.635 Rules of practice for administrative law judge proceedings.
655.640 Service and computation of time.
655.645 Administrative law judge proceedings.
655.650 Decision and order of administrative law judge.
655.655 Secretary's review of administrative law judge's decision.
655.660 Administrative record.
655.665 Notice to the Department of Homeland Security and the Employment
and Training Administration.
655.670 Federal Register notice of determination of prevailing practice.
655.675 Non-applicability of the Equal Access to Justice Act.
Subpart H_Labor Condition Applications and Requirements for Employers
Seeking To Employ Nonimmigrants on H 1b Visas in Specialty Occupations
and as Fashion Models, and Requirements for Employers Seeking To Employ
Nonimmigrants on H 1b1 and E 3 Visas in Specialty Occupations
655.700 What statutory provisions govern the employment of H-1B, H-1B1,
and E-3 nonimmigrants and how do employers apply for H-1B, H-
1B1, and E-3 visas?
655.705 What Federal agencies are involved in the H-1B and H-1B1
programs, and what are the responsibilities of those agencies
and of employers?
655.710 What is the procedure for filing a complaint?
655.715 Definitions
655.720 Where are labor condition applications (LCAs) to be filed and
processed?
655.721 [Reserved]
655.730 What is the process for filing a labor condition application?
655.731 What is the first LCA requirement, regarding wages?
655.732 What is the second LCA requirement, regarding working
conditions?
655.733 What is the third LCA requirement, regarding strikes and
lockouts?
655.734 What is the fourth LCA requirement, regarding notice?
655.735 What are the special provisions for short-term placement of H-1B
nonimmigrants at place(s) of employment outside the area(s) of
intended employment listed on the LCA?
655.736 What are H-1B-dependent employers and willful violators?
655.737 What are ``exempt'' H-1B nonimmigrants, and how does their
employment affect the additional attestation obligations of H-
1B-dependent employers and willful violator employers?
655.738 What are the ``non-displacement of U.S. workers'' obligations
that apply to H-1B-dependent employers and willful violators,
and how do they operate?
655.739 What is the ``recruitment of U.S. workers'' obligation that
applies to H-1B-dependent employers and willful violators, and
how does it operate?
655.740 What actions are taken on labor condition applications?
655.750 What is the validity period of the labor condition application?
655.760 What records are to be made available to the public, and what
records are to be retained?
Subpart I_Enforcement of H 1B Labor Condition Applications and H 1B1 and
E 3 Labor Attestations
655.800 Who will enforce the LCAs and how will they be enforced?
655.801 What protection do employees have from retaliation?
655.805 What violations may the Administrator investigate?
655.806 Who may file a complaint and how is it processed?
655.807 How may someone who is not an ``aggrieved party'' allege
violations, and how will those allegations be processed?
655.808 Under what circumstances may random investigations be conducted?
655.810 What remedies may be ordered if violations are found?
655.815 What are the requirements for the Administrator's determination?
655.820 How is a hearing requested?
655.825 What rules of practice apply to the hearing?
655.830 What rules apply to service of pleadings?
655.835 How will the administrative law judge conduct the proceeding?
655.840 What are the requirements for a decision and order of the
administrative law judge?
[[Page 303]]
655.845 What rules apply to appeal of the decision of the administrative
law judge?
655.850 Who has custody of the administrative record?
655.855 What notice shall be given to the Employment and Training
Administration and the DHS of the decision regarding
violations?
Subparts J-K [Reserved]
Subpart L_What requirements must a facility meet to employ H 1C
nonimmigrant workers as registered nurses?
655.1100 What are the purposes, procedures and applicability of the
regulations in subparts L and M of this part?
655.1101 What are the responsibilities of the government agencies and
the facilities that participate in the H-1C program?
655.1102 What are the definitions of terms that are used in these
regulations?
655.1110 What requirements are imposed in the filing of an attestation?
655.1111 Element I--What hospitals are eligible to participate in the H-
1C program?
655.1112 Element II--What does ``no adverse effect on wages and working
conditions'' mean?
655.1113 Element III--What does ``facility wage rate'' mean?
655.1114 Element IV--What are the timely and significant steps an H-1C
employer must take to recruit and retain U.S. nurses?
655.1115 Element V--What does ``no strike/lockout or layoff'' mean?
655.1116 Element VI--What notification must facilities provide to
registered nurses?
655.1117 Element VII--What are the limitations as to the number of H-1C
nonimmigrants that a facility may employ?
655.1118 Element VIII--What are the limitations as to where the H-1C
nonimmigrant may be employed?
655.1130 What criteria does the Department use to determine whether or
not to certify an Attestation?
655.1132 When will the Department suspend or invalidate an already-
approved Attestation?
655.1135 What appeals procedures are available concerning ETA's actions
on a facility's Attestation?
655.1150 What materials must be available to the public?
Subpart M_What are the Department's enforcement obligations with respect
to H 1C Attestations?
655.1200 What enforcement authority does the Department have with
respect to a facility's H-1C Attestation?
655.1205 What is the Administrator's responsibility with respect to
complaints and investigations?
655.1210 What penalties and other remedies may the Administrator impose?
655.1215 How are the Administrator's investigation findings issued?
655.1220 Who can appeal the Administrator's findings and what is the
process?
655.1225 What are the rules of practice before an ALJ?
655.1230 What time limits are imposed in ALJ proceedings?
655.1235 What are the ALJ proceedings?
655.1240 When and how does an ALJ issue a decision?
655.1245 Who can appeal the ALJ's decision and what is the process?
655.1250 Who is the official record keeper for these administrative
appeals?
655.1255 What are the procedures for the debarment of a facility based
on a finding of violation?
655.1260 Can Equal Access to Justice Act attorney fees be awarded?
Subpart N_Labor Certification Process for Temporary Agricultural
Employment in the United States (H 2A Workers)
655.1290 Purpose and scope of subpart B.
655.1292 Authority of ETA-OFLC.
655.1293 Special procedures.
655.1300 Overview of subpart B and definition of terms.
655.1301 Applications for temporary employment certification in
agriculture.
655.1302 Required pre-filing activity.
655.1303 Advertising requirements.
655.1304 Contents of job offers.
655.1305 Assurances and obligations of H-2A employers.
655.1306 Assurances and obligations of H-2A Labor Contractors.
655.1307 Processing of applications.
655.1308 Offered wage rate.
655.1309 Labor certification determinations.
655.1310 Validity and scope of temporary labor certifications.
655.1311 Required departure.
655.1312 Audits.
655.1313 H-2A applications involving fraud or willful misrepresentation.
655.1314 Setting meal charges; petition for higher meal charges.
655.1315 Administrative review and de novo hearing before an
administrative law judge.
655.1316 Job Service Complaint System; enforcement of work contracts.
655.1317 Revocation of approved labor certifications.
655.1318 Debarment.
655.1319 Document retention requirements.
Authority: Section 655.0 issued under 8 U.S.C. 1101(a)(15)(E)(iii),
1101(a)(15)(H)(i) and
[[Page 304]]
(ii), 8 U.S.C. 1103(a)(6), 1182(m), (n) and (t), 1184(c), (g), and (j),
1188, and 1288(c) and (d); sec. 3(c)(1), Pub. L. 101-238, 103 Stat.
2099, 2102 (8 U.S.C. 1182 note); sec. 221(a), Pub. L. 101-649, 104 Stat.
4978, 5027 (8 U.S.C. 1184 note); sec. 303(a)(8), Pub. L. 102-232, 105
Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 323(c), Pub. L. 103-206, 107
Stat. 2428; sec. 412(e), Pub. L. 105-277, 112 Stat. 2681 (8 U.S.C. 1182
note); sec. 2(d), Pub. L. 106-95, 113 Stat. 1312, 1316 (8 U.S.C. 1182
note); 29 U.S.C. 49k; Pub. L. 109-423, 120 Stat. 2900; 8 CFR
214.2(h)(4)(i); and 8 CFR 214.2(h)(6)(iii).
Section 655.00 issued under 8 U.S.C. 1101(a)(15)(H)(ii), 1184, and
1188; 29 U.S.C. 49 et seq.; and 8 CFR 214.2(h)(4)(i).
Subparts A and C issued under 8 U.S.C. 1101(a)(15)(H)(ii)(b) and
1184; 29 U.S.C. 49 et seq.; and 8 CFR 214.2(h)(4)(i).
Subpart B issued under 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184, and
1188; and 29 U.S.C. 49 et seq.
Subparts D and E issued under 8 U.S.C. 1101(a)(15)(H)(i)(a),
1182(m), and 1184; 29 U.S.C. 49 et seq.; and sec. 3(c)(1), Pub. L. 101-
238, 103 Stat. 2099, 2103 (8 U.S.C. 1182 note).
Subparts F and G issued under 8 U.S.C. 1184 and 1288(c); and 29
U.S.C. 49 et seq.
Subparts H and I issued under 8 U.S.C. 1101(a)(15)(H)(i)(b) and
(b1), 1182(n), 1182(t), and 1184; 29 U.S.C. 49 et seq.; sec 303(a)(8),
Pub. L. 102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1182 note); and Title
IV, Pub. L. 105-277, 112 Stat. 2681.
Subparts J and K issued under 29 U.S.C. 49 et seq.; and sec. 221(a),
Pub. L. 101-649, 104 Stat. 4978, 5027 (8 U.S.C. 1184 note).
Subparts L and M issued under 8 U.S.C. 1101(a)(15)(H)(i)(c),
1182(m), and 1184; 29 U.S.C. 49 et seq., and Pub. L. 109-423, 120 Stat.
2900.
Source: 42 FR 45899, Sept. 13, 1977, unless otherwise noted.
Editorial Note: Nomenclature changes to part 655 appear at 71 FR
35521, 35522, June 21, 2006.
Sec. 655.0 Scope and purpose of part.
(a) Subparts A, B, and C--(1) General. Subparts A, B, and C of this
part set out the procedures adopted by the Secretary to secure
information sufficient to make factual determinations of: (i) Whether
U.S. workers are available to perform temporary employment in the United
States, for which an employer desires to employ nonimmigrant foreign
workers, and (ii) whether the employment of aliens for such temporary
work will adversely affect the wages or working conditions of similarly
employed U.S. workers. These factual determinations (or a determination
that there are not sufficient facts to make one or both of these
determinations) are required to carry out the policies of the
Immigration and Nationality Act (INA), that a nonimmigrant alien worker
not be admitted to fill a particular temporary job opportunity unless no
qualifed U.S. worker is available to fill the job opportunity, and
unless the employment of the foreign worker in the job opportunity will
not adversely affect the wages or working conditions of similarly
employed U.S. workers.
(2) The Secretary's determinations. Before any factual determination
can be made concerning the availability of U.S. workers to perform
particular job opportunities, two steps must be taken. First, the
minimum level of wages, terms, benefits, and conditions for the
particular job opportunities, below which similarly employed U.S.
workers would be adversely affected, must be established. (The
regulations in this part establish such minimum levels for wages, terms,
benefits, and conditions of employment.) Second, the wages, terms,
benefits, and conditions offered and afforded to the aliens must be
compared to the established minimum levels. If it is concluded that
adverse effect would result, the ultimate determination of availability
within the meaning of the INA cannot be made since U.S. workers cannot
be expected to accept employment under conditions below the established
minimum levels. Florida Sugar Cane League, Inc. v. Usery, 531 F. 2d 299
(5th Cir. 1976).
Once a determination of no adverse effect has been made, the
availability of U.S. workers can be tested only if U.S. workers are
actively recruited through the offer of wages, terms, benefits, and
conditions at least at the minimum level or the level offered to the
aliens, whichever is higher. The regulations in this part set forth
requirements for recruiting U.S. workers in accordance with this
principle.
(3) Construction. This part and its subparts shall be construed to
effectuate the purpose of the INA that U.S. workers rather than aliens
be employed wherever possible. Elton Orchards, Inc. v. Brennan, 508 F.
2d 493, 500 (1st Cir. 1974), Flecha v. Quiros, 567 F. 2d 1154 (1st Cir.
1977). Where temporary
[[Page 305]]
alien workers are admitted, the terms and conditions of their employment
must not result in a lowering of the terms and conditions of domestic
workers similarly employed, Williams v. Usery, 531 F. 2d 305 (5th Cir.
1976); Florida Sugar Cane League, Inc. v. Usery, 531 F. 2d 299 (5th Cir.
1976), and the job benefits extended to any U.S. workers shall be at
least those extended to the alien workers.
(b) Subparts D and E. Subparts D and E of this part set forth the
process by which health care facilities can file attestations with the
Department of Labor for the purpose of employing or otherwise using
nonimmigrant registered nurses under H-1A visas.
(c) Subparts F and G. Subparts F and G of this part set forth the
process by which employers can file attestations with the Department of
Labor for the purpose of employing alien crewmembers in longshore work
under D-visas and enforcement provisions relating thereto.
(d) Subparts H and I of this part. Subpart H of this part sets forth
the process by which employers can file labor condition applications
(LCAs) with, and the requirements for obtaining approval from, the
Department of Labor to temporarily employ the following three categories
of nonimmigrants in the United States: (1) H-1B visas for temporary
employment in specialty occupations or as fashion models of
distinguished merit and ability; (2) H-1B1 visas for temporary
employment in specialty occupations of nonimmigrant professionals from
countries with which the United States has entered into certain
agreements identified in section 214(g)(8)(A) of the INA; and (3) E-3
visas for nationals of the Commonwealth of Australia for temporary
employment in specialty occupations. Subpart I of this part establishes
the enforcement provisions that apply to the H-1B, H-1B1, and E-3 visa
programs.
(e) Subparts J and K of this part. Subparts J and K of this part set
forth the process by which employers can file attestations with the
Department of Labor for the purpose of employing nonimmigrant alien
students on F-visas in off-campus employment and enforcement provisions
relating thereto.
[43 FR 10312, Mar. 10, 1978, as amended at 52 FR 20507, June 1, 1987; 55
FR 50510, Dec. 6, 1990; 56 FR 24667, May 30, 1991; 56 FR 54738, Oct. 22,
1991; 56 FR 56875, Nov. 6, 1991; 57 FR 1337, Jan. 13, 1992; 57 FR 40989,
Sept. 8, 1992; 69 FR 68226, Nov. 23, 2004; 73 FR 19947, Apr. 11, 2008]
Sec. 655.00 Authority of the Office of Foreign Labor Certification
(OFLC) Administrator under subparts A, B, and C.
Pursuant to the regulations under this part, temporary labor
certification determinations under subparts A, B, and C of this part are
ordinarily made by the Office of Foreign Labor Certification (OFLC)
Administrator (OFLC Administrator) of the Employment and Training
Administration. The OFLC Administrator will informally advise the
employer or agent of the name of the official who will make
determinations with respect to the application.
[71 FR 35518, June 21, 2006]
Subpart A_Labor Certification Process and Enforcement of Attestations
for Temporary Employment in Occupations Other Than Agriculture or
Registered Nursing in the United States (H 2B Workers)
Source: 73 FR 78052, Dec. 19, 2008, unless otherwise noted.
Sec. 655.1 Scope and purpose of subpart A.
The Immigration and Nationality Act (INA) at 8 U.S.C. 1184(c)(1)
requires the Secretary of the Department of Homeland Security (DHS) to
consult with appropriate agencies before authorizing the entry of H-2B
workers. DHS regulations at 8 CFR 214.2(h)(6)(iv) provide that an
employer's petition to employ nonimmigrant workers on H-2B visas for
temporary non-agricultural employment in the United States (U.S.),
except for Guam, must be accompanied by an approved temporary labor
certification from the Secretary of Labor (Secretary).
[[Page 306]]
(a) Purpose. The temporary labor certification reflects a
determination by the Secretary that:
(1) There are not sufficient U.S. workers who are qualified and who
will be available to perform the temporary services or labor for which
an employer desires to hire foreign workers, and that
(2) The employment of the H-2B worker(s) will not adversely affect
the wages and working conditions of U.S. workers similarly employed.
(b) Scope. This subpart sets forth the procedures governing the
labor certification process for the temporary employment of nonimmigrant
foreign workers in the H-2B visa category, as defined in 8 U.S.C.
1101(a)(15)(H)(ii)(b). It also establishes obligations with respect to
the terms and conditions of the temporary labor certification with which
H-2B employers must comply, as well as their obligations to H-2B workers
and workers in corresponding employment. Additionally, this subpart sets
forth integrity measures for ensuring employers' continued compliance
with the terms and conditions of the temporary labor certification.
[77 FR 10148, Feb. 21, 2012]
Sec. 655.2 Authority of the agencies, offices, and divisions in the
Department of Labor.
(a) Authority and role of the Office of Foreign Labor Certification
(OFLC). The Secretary has delegated her authority to make determinations
under this subpart, pursuant to 8 CFR 214.2(h)(6)(iv), to the Assistant
Secretary for the Employment and Training Administration (ETA), who in
turn has delegated that authority to OFLC. Determinations on an
Application for Temporary Employment Certification in the H-2B program
are made by the Administrator, OFLC who, in turn, may delegate this
responsibility to designated staff members, e.g., a Certifying Officer
(CO).
(b) Authority of the Wage and Hour Division (WHD). Pursuant to its
authority under the INA, 8 U.S.C. 1184(c)(14)(B), DHS has delegated to
the Secretary certain investigatory and law enforcement functions with
respect to terms and conditions of employment in the H-2B program. The
Secretary has, in turn, delegated that authority to WHD. The regulations
governing WHD investigation and enforcement functions, including those
related to the enforcement of temporary labor certifications, issued
under this subpart, may be found in 29 CFR part 503.
(c) Concurrent authority. OFLC and WHD have concurrent authority to
impose a debarment remedy under Sec. 655.73 or under 29 CFR 503.24.
[77 FR 10148, Feb. 21, 2012]
Sec. 655.3 Territory of Guam.
Subpart A of this part does not apply to temporary employment in the
Territory of Guam, except that an employer seeking certification for a
job opportunity on Guam must obtain a prevailing wage from the
Department in accordance with Sec. 655.10 of this subpart. The U.S.
Department of Labor (Department or DOL) does not certify to the United
States Citizenship and Immigration Services (USCIS) of DHS the temporary
employment of nonimmigrant foreign workers under H-2B visas, or enforce
compliance with the provisions of the H-2B visa program, in the
Territory of Guam. Under DHS regulations, administration of the H-2B
temporary labor certification program is undertaken by the Governor of
Guam, or the Governor's designated representative.
[77 FR 10148, Feb. 21, 2012]
Sec. 655.4 Special procedures.
To provide for a limited degree of flexibility in carrying out the
Secretary's responsibilities, the Administrator, OFLC has the authority
to establish, continue, revise, or revoke special procedures in the form
of variances for processing certain H-2B applications. Employers must
request and demonstrate in writing to the Administrator, OFLC that
special procedures are necessary. Before making determinations under
this section, the Administrator, OFLC may consult with affected
employers and worker representatives. Special procedures in place on the
effective date of this regulation, including special procedures
[[Page 307]]
currently in effect for handling applications for tree planters and
related reforestation workers, professional athletes, boilermakers
coming to the U.S. on an emergency basis, and professional entertainers,
will remain in force until modified or withdrawn by the Administrator,
OFLC.
[77 FR 10148, Feb. 21, 2012]
Sec. 655.5 Definition of terms.
For purposes of this subpart:
Act means the Immigration and Nationality Act or INA, as amended, 8
U.S.C. 1101 et seq.
Administrative Law Judge (ALJ) means a person within the
Department's Office of Administrative Law Judges appointed under 5
U.S.C. 3105.
Administrator, Office of Foreign Labor Certification (OFLC) means
the primary official of the Office of Foreign Labor Certification, ETA,
or the Administrator's designee.
Administrator, Wage and Hour Division (WHD) means the primary
official of the WHD, or the Administrator's designee.
Agent. (1) Agent means a legal entity or person who:
(i) Is authorized to act on behalf of an employer for temporary
nonagricultural labor certification purposes;
(ii) Is not itself an employer, or a joint employer, as defined in
this part with respect to a specific application; and
(iii) Is not an association or other organization of employers.
(2) No agent who is under suspension, debarment, expulsion,
disbarment, or otherwise restricted from practice before any court, the
Department, the Executive Office for Immigration Review under 8 CFR
1003.101, or DHS under 8 CFR 292.3 may represent an employer under this
part.
Agricultural labor or services means those duties and occupations
defined in subpart B of this part.
Applicant means a U.S. worker who is applying for a job opportunity
for which an employer has filed an Application for Temporary Employment
Certification (ETA Form 9142 and the appropriate appendices).
Application for Temporary Employment Certification means the Office
of Management and Budget (OMB)-approved ETA Form 9142 and the
appropriate appendices, a valid wage determination, as required by Sec.
655.10, and a subsequently-filed U.S. worker recruitment report,
submitted by an employer to secure a temporary labor certification
determination from DOL.
Area of intended employment means the geographic area within normal
commuting distance of the place (worksite address) of the job
opportunity for which the certification is sought. There is no rigid
measure of distance that constitutes a normal commuting distance or
normal commuting area, because there may be widely varying factual
circumstances among different areas (e.g., average commuting times,
barriers to reaching the worksite, or quality of the regional
transportation network). If the place of intended employment is within a
Metropolitan Statistical Area (MSA), including a multistate MSA, any
place within the MSA is deemed to be within normal commuting distance of
the place of intended employment. The borders of MSAs are not
controlling in the identification of the normal commuting area; a
location outside of an MSA may be within normal commuting distance of a
location that is inside (e.g., near the border of) the MSA.
Area of substantial unemployment means a contiguous area with a
population of at least 10,000 in which there is an average unemployment
rate equal to or exceeding 6.5 percent for the 12 months preceding the
determination of such areas made by the ETA.
Attorney means any person who is a member in good standing of the
bar of the highest court of any State, possession, territory, or
commonwealth of the U.S., or the District of Columbia. No attorney who
is under suspension, debarment, expulsion, disbarment, or otherwise
restricted from practice before any court, the Department, the Executive
Office for Immigration Review under 8 CFR 1003.101, or DHS under 8 CFR
292.3 may represent an employer under this subpart.
Board of Alien Labor Certification Appeals (BALCA or Board) means
the permanent Board established by part 656 of this chapter, chaired by
the Chief Administrative Law Judge (Chief ALJ),
[[Page 308]]
and consisting of ALJs assigned to the Department and designated by the
Chief ALJ to be members of BALCA.
Certifying Officer (CO) means an OFLC official designated by the
Administrator, OFLC to make determinations on applications under the H-
2B program. The Administrator, OFLC is the National CO. Other COs may
also be designated by the Administrator, OFLC to make the determinations
required under this subpart.
Chief Administrative Law Judge (Chief ALJ) means the chief official
of the Department's Office of Administrative Law Judges or the Chief
Administrative Law Judge's designee.
Corresponding employment. (1) Corresponding employment means the
employment of workers who are not H-2B workers by an employer that has a
certified H-2B Application for Temporary Employment Certification when
those workers are performing either substantially the same work included
in the job order or substantially the same work performed by the H-2B
workers, except that workers in the following two categories are not
included in corresponding employment:
(i) Incumbent employees continuously employed by the H-2B employer
to perform substantially the same work included in the job order or
substantially the same work performed by the H-2B workers during the 52
weeks prior to the period of employment certified on the Application for
Temporary Employment Certification and who have worked or been paid for
at least 35 hours in at least 48 of the prior 52 workweeks, and who have
worked or been paid for an average of at least 35 hours per week over
the prior 52 weeks, as demonstrated on the employer's payroll records,
provided that the terms and working conditions of their employment are
not substantially reduced during the period of employment covered by the
job order. In determining whether this standard was met, the employer
may take credit for any hours that were reduced by the employee
voluntarily choosing not to work due to personal reasons such as illness
or vacation; or
(ii) Incumbent employees covered by a collective bargaining
agreement or an individual employment contract that guarantees both an
offer of at least 35 hours of work each workweek and continued
employment with the H-2B employer at least through the period of
employment covered by the job order, except that the employee may be
dismissed for cause.
(2) To qualify as corresponding employment, the work must be
performed during the period of the job order, including any approved
extension thereof.
Date of need means the first date the employer requires services of
the H-2B workers as listed on the Application for Temporary Employment
Certification.
Department of Homeland Security (DHS) means the Federal Department
having jurisdiction over certain immigration-related functions, acting
through its agencies, including USCIS.
Employee means a person who is engaged to perform work for an
employer, as defined under the general common law. Some of the factors
relevant to the determination of employee status include: the hiring
party's right to control the manner and means by which the work is
accomplished; the skill required to perform the work; the source of the
instrumentalities and tools for accomplishing the work; the location of
the work; the hiring party's discretion over when and how long to work;
and whether the work is part of the regular business of the hiring
party. Other applicable factors may be considered and no one factor is
dispositive. The terms employee and worker are used interchangeably in
this subpart.
Employer means a person (including any individual, partnership,
association, corporation, cooperative, firm, joint stock company, trust,
or other organization with legal rights and duties) that:
(1) Has a place of business (physical location) in the U.S. and a
means by which it may be contacted for employment;
(2) Has an employer relationship (such as the ability to hire, pay,
fire, supervise or otherwise control the work of employees) with respect
to an H-2B worker or a worker in corresponding employment; and
(3) Possesses, for purposes of filing an Application for Temporary
Employment
[[Page 309]]
Certification, a valid Federal Employer Identification Number (FEIN).
Employer-client means an employer that has entered into an agreement
with a job contractor and that is not an affiliate, branch or subsidiary
of the job contractor, under which the job contractor provides services
or labor to the employer on a temporary basis and will not exercise
substantial, direct day-to-day supervision and control in the
performance of the services or labor to be performed other than hiring,
paying and firing the workers.
Employment and Training Administration (ETA) means the agency within
the Department which includes OFLC and has been delegated authority by
the Secretary to fulfill the Secretary's mandate under the DHS
regulations for the administration and adjudication of an Application
for Temporary Employment Certification and related functions.
Federal holiday means a legal public holiday as defined at 5 U.S.C.
6103.
Full-time means 35 or more hours of work per week.
H-2B Petition means the DHS Petition for a Nonimmigrant Worker form,
or successor form, and accompanying documentation required by DHS for
employers seeking to employ foreign persons as H-2B nonimmigrant
workers. The H-2B Petition includes the approved Application for
Temporary Employment Certification and the Final Determination letter.
H-2B Registration means the OMB-approved ETA Form 9155, submitted by
an employer to register its intent to hire H-2B workers and to file an
Application for Temporary Employment Certification.
H-2B worker means any temporary foreign worker who is lawfully
present in the U.S. and authorized by DHS to perform nonagricultural
labor or services of a temporary or seasonal nature under 8 U.S.C.
1101(a)(15)(H)(ii)(b).
Job contractor means a person, association, firm, or a corporation
that meets the definition of an employer and that contracts services or
labor on a temporary basis to one or more employers, which is not an
affiliate, branch or subsidiary of the job contractor and where the job
contractor will not exercise substantial, direct day-to-day supervision
and control in the performance of the services or labor to be performed
other than hiring, paying and firing the workers.
Job offer means the offer made by an employer or potential employer
of H-2B workers to both U.S. and H-2B workers describing all the
material terms and conditions of employment, including those relating to
wages, working conditions, and other benefits.
Job opportunity means one or more openings for full-time employment
with the petitioning employer within a specified area(s) of intended
employment for which the petitioning employer is seeking workers.
Job order means the document containing the material terms and
conditions of employment relating to wages, hours, working conditions,
worksite and other benefits, including obligations and assurances under
29 CFR part 503 and this subpart that is posted between and among the
State Workforce Agencies (SWAs) on their job clearance systems.
Joint employment means that where two or more employers each have
sufficient definitional indicia of being an employer to be considered
the employer of a worker, those employers will be considered to jointly
employ that worker. Each employer in a joint employment relationship to
a worker is considered a joint employer of that worker.
Layoff means any involuntary separation of one or more U.S.
employees without cause.
Metropolitan Statistical Area (MSA) means a geographic entity
defined by OMB for use by Federal statistical agencies in collecting,
tabulating, and publishing Federal statistics. A metro area contains a
core urban area of 50,000 or more population, and a micro area contains
an urban core of at least 10,000 (but fewer than 50,000) population.
Each metro or micro area consists of one or more counties and includes
the counties containing the core urban area, as well as any adjacent
counties that have a high degree of social and economic integration (as
measured by commuting to work) with the urban core.
National Prevailing Wage Center (NPWC) means that office within OFLC
[[Page 310]]
from which employers, agents, or attorneys who wish to file an
Application for Temporary Employment Certification receive a prevailing
wage determination (PWD).
NPWC Director means the OFLC official to whom the Administrator,
OFLC has delegated authority to carry out certain NPWC operations and
functions.
National Processing Center (NPC) means the office within OFLC which
is charged with the adjudication of an Application for Temporary
Employment Certification or other applications. For purposes of this
subpart, the NPC receiving a request for an H-2B Registration and an
Application for Temporary Employment Certification is the Chicago NPC
whose address is published in the Federal Register.
NPC Director means the OFLC official to whom the Administrator, OFLC
has delegated authority for purposes of certain Chicago NPC operations
and functions.
Non-agricultural labor and services means any labor or services not
considered to be agricultural labor or services as defined in subpart B
of this part. It does not include the provision of services as members
of the medical profession by graduates of medical schools.
Occupational employment statistics (OES) survey means the program
under the jurisdiction of the Bureau of Labor Statistics (BLS) that
provides annual wage estimates for occupations at the State and MSA
levels.
Offered wage means the wage offered by an employer in an H-2B job
order. The offered wage must equal or exceed the highest of the
prevailing wage or Federal, State or local minimum wage.
Office of Foreign Labor Certification (OFLC) means the
organizational component of the ETA that provides national leadership
and policy guidance and develops regulations to carry out the
Secretary's responsibilities for the admission of foreign workers to the
U.S. to perform work described in 8 U.S.C. 1101(a)(15)(H)(ii)(b).
Prevailing wage determination (PWD) means the prevailing wage for
the position, as described in Sec. 655.10, that is the subject of the
Application for Temporary Employment Certification. The PWD is made on
ETA Form 9141, Application for Prevailing Wage Determination.
Professional athlete is defined in 8 U.S.C. 1182(a)(5)(A)(iii)(II),
and means an individual who is employed as an athlete by:
(1) A team that is a member of an association of six or more
professional sports teams whose total combined revenues exceed
$10,000,000 per year, if the association governs the conduct of its
members and regulates the contests and exhibitions in which its member
teams regularly engage; or
(2) Any minor league team that is affiliated with such an
association.
Secretary means the Secretary of Labor, the chief official of the
U.S. Department of Labor, or the Secretary's designee.
Secretary of the Department of Homeland Security means the chief
official of the U.S. Department of Homeland Security (DHS) or the
Secretary of DHS's designee.
Secretary of State means the chief official of the U.S. Department
of State or the Secretary of State's designee.
State Workforce Agency (SWA) means a State government agency that
receives funds under the Wagner-Peyser Act (29 U.S.C. 49 et seq.) to
administer the State's public labor exchange activities.
Strike means a concerted stoppage of work by employees as a result
of a labor dispute, or any concerted slowdown or other concerted
interruption of operation (including stoppage by reason of the
expiration of a collective bargaining agreement).
Successor in interest means:
(1) Where an employer has violated 29 CFR part 503, or this subpart,
and has ceased doing business or cannot be located for purposes of
enforcement, a successor in interest to that employer may be held liable
for the duties and obligations of the violating employer in certain
circumstances. The following factors, as used under Title VII of the
Civil Rights Act and the Vietnam Era Veterans' Readjustment Assistance
Act, may be considered in determining whether an employer is a successor
in interest; no one factor is dispositive, but all of the circumstances
will be considered as a whole:
[[Page 311]]
(i) Substantial continuity of the same business operations;
(ii) Use of the same facilities;
(iii) Continuity of the work force;
(iv) Similarity of jobs and working conditions;
(v) Similarity of supervisory personnel;
(vi) Whether the former management or owner retains a direct or
indirect interest in the new enterprise;
(vii) Similarity in machinery, equipment, and production methods;
(viii) Similarity of products and services; and
(ix) The ability of the predecessor to provide relief.
(2) For purposes of debarment only, the primary consideration will
be the personal involvement of the firm's ownership, management,
supervisors, and others associated with the firm in the violation(s) at
issue.
United States (U.S.) means the continental U.S., Alaska, Hawaii, the
Commonwealth of Puerto Rico, and the territories of Guam, the U.S.
Virgin Islands, and the Commonwealth of the Northern Mariana Islands
(CNMI).
United States Citizenship and Immigration Services (USCIS) means the
Federal agency within DHS that makes the determination under the INA
whether to grant petitions filed by employers seeking H-2B workers to
perform temporary non-agricultural work in the U.S.
United States worker (U.S. worker) means a worker who is:
(1) A citizen or national of the U.S.;
(2) An alien who is lawfully admitted for permanent residence in the
U.S., is admitted as a refugee under 8 U.S.C. 1157, is granted asylum
under 8 U.S.C. 1158, or is an immigrant otherwise authorized (by the INA
or by DHS) to be employed in the U.S.; or
(3) An individual who is not an unauthorized alien (as defined in 8
U.S.C. 1324a(h)(3)) with respect to the employment in which the worker
is engaging.
Wage and Hour Division (WHD) means the agency within the Department
with investigatory and law enforcement authority, as delegated from DHS,
to carry out the provisions under 8 U.S.C. 1184(c).
Wages mean all forms of cash remuneration to a worker by an employer
in payment for personal services.
[77 FR 10148, Feb. 21, 2012]
Sec. 655.6 Temporary need.
(a) An employer seeking certification under this subpart must
establish that its need for non-agricultural services or labor is
temporary, regardless of whether the underlying job is permanent or
temporary. 8 CFR 214.2(h)(6)(ii)(A).
(b) The employer's need is considered temporary if justified to the
CO as one of the following: A one-time occurrence; a seasonal need; a
peakload need; or an intermittent need, as defined by DHS. 8 CFR
214.2(h)(6)(ii)(B). Except where the employer's need is based on a one-
time occurrence, the CO will deny a request for an H-2B Registration or
an Application for Temporary Employment Certification where the employer
has a need lasting more than 9 months.
(c) A job contractor will only be permitted to seek certification if
it can demonstrate through documentation its own temporary need, not
that of its employer-client(s). A job contractor will only be permitted
to file applications based on a seasonal need or a one-time occurrence.
[77 FR 10148, Feb. 21, 2012]
Sec. 655.7 Persons and entities authorized to file.
(a) Persons authorized to file. In addition to the employer
applicant, a request for an H-2B Registration or an Application for
Temporary Employment Certification may be filed by an attorney or agent,
as defined in Sec. 655.5.
(b) Employer's signature required. Regardless of whether the
employer is represented by an attorney or agent, the employer is
required to sign the H-2B Registration and Application for Temporary
Employment Certification and all documentation submitted to the
Department.
[77 FR 10151, Feb. 21, 2012]
Sec. 655.8 Requirements for agents.
An agent filing an Application for Temporary Employment
Certification on behalf of an employer must provide:
[[Page 312]]
(a) A copy of the agent agreement or other document demonstrating
the agent's authority to represent the employer; and
(b) A copy of the Migrant and Seasonal Agricultural Worker
Protection Act (MSPA) Farm Labor Contractor Certificate of Registration,
if the agent is required under MSPA, at 29 U.S.C. 1801 et seq., to have
such a certificate, identifying the specific farm labor contracting
activities the agent is authorized to perform.
[77 FR 10151, Feb. 21, 2012]
Sec. 655.9 Disclosure of foreign worker recruitment.
(a) The employer, and its attorney or agent, as applicable, must
provide a copy of all agreements with any agent or recruiter whom it
engages or plans to engage in the international recruitment of H-2B
workers under this Application for Temporary Employment Certification.
These agreements must contain the contractual prohibition against
charging fees as set forth in Sec. 655.20(p).
(b) The employer, and its attorney or agent, as applicable, must
also provide the identity and location of all persons and entities hired
by or working for the recruiter or agent referenced in paragraph (a) of
this section, and any of the agents or employees of those persons and
entities, to recruit prospective foreign workers for the H-2B job
opportunities offered by the employer.
(c) The Department will maintain a publicly available list of agents
and recruiters who are party to the agreements referenced in paragraph
(a) of this section, as well as the persons and entities referenced in
paragraph (b) of this section and the locations in which they are
operating.
[77 FR 10151, Feb. 21, 2012]
Prefiling Procedures
Sec. 655.10 Determination of prevailing wage for temporary labor
certification purposes.
(a) Offered wage. The employer must advertise the position to all
potential workers at a wage at least equal to the prevailing wage
obtained from the NPWC, or the Federal, State or local minimum wage,
whichever is highest. The employer must offer and pay this wage (or
higher) to both its H-2B workers and its workers in corresponding
employment. The issuance of a PWD under this section does not permit an
employer to pay a wage lower than the highest wage required by any
applicable Federal, State or local law.
(b) Determinations. Prevailing wages shall be determined as follows:
(1) Except as provided in paragraph (e) of this section, if the job
opportunity is covered by a collective bargaining agreement (CBA) that
was negotiated at arms' length between the union and the employer, the
wage rate set forth in the CBA is considered as not adversely affecting
the wages of U.S. workers, that is, it is considered the ``prevailing
wage'' for labor certification purposes.
(2) If the job opportunity is not covered by a CBA, the prevailing
wage for labor certification purposes shall be the arithmetic mean,
except as provided in paragraph (b)(4) of this section, of the wages of
workers similarly employed in the area of intended employment. The wage
component of the BLS Occupational Employment Statistics Survey (OES)
shall be used to determine the arithmetic mean, unless the employer
provides a survey acceptable to OFLC under paragraph (f) of this
section.
(3) If the job opportunity involves multiple worksites within an
area of intended employment and different prevailing wage rates exist
for the same opportunity and staff level within the area of intended
employment, the prevailing wage shall be based on the highest applicable
wage among all relevant worksites.
(4) If the employer provides a survey acceptable under paragraph (f)
of this section that provides a median but does not provide an
arithmetic mean, the prevailing wage applicable to the employer's job
opportunity shall be the median of the wages of U.S. workers similarly
employed in the area of intended employment.
(5) The employer may use a current wage determination in the area
determined under the Davis-Bacon Act, 40 U.S.C. 276a et seq., 29 CFR
part 1, or the McNamara-O'Hara Service Contract Act, 41 U.S.C. 351 et
seq.
[[Page 313]]
(6) The NPC will enter its wage determination on the form it uses
for these purposes, indicate the source, and return the form with its
endorsement to the employer within 30 days of receipt of the request for
a prevailing wage determination. The employer must offer this wage (or
higher) to both its H-2B workers and any similarly employed U.S. worker
hired in response to the recruitment required as part of the
application.
(c) Request for PWD. (1) An employer must request and receive a PWD
from the NPWC before filing the job order with the SWA.
(2) The PWD must be valid on the date the job order is posted.
(d) Multiple worksites. If the job opportunity involves multiple
worksites within an area of intended employment and different prevailing
wage rates exist for the opportunity within the area of intended
employment, the prevailing wage is the highest applicable wage among all
the worksites.
(e) NPWC action. The NPWC will provide the PWD, indicate the source,
and return the Application for Prevailing Wage Determination (ETA Form
9141) with its endorsement to the employer.
(f) Employer-provided wage information. (1) If the job opportunity
is not covered by a CBA, or by a professional sports league's rules or
regulations, the NPC will consider wage information provided by the
employer in making a Prevailing Wage Determination. An employer survey
can be submitted either initially or after NPC issuance of a PWD derived
from the OES survey.
(2) In each case where the employer submits a survey or other wage
data for which it seeks acceptance, the employer must provide specific
information about the survey methodology, including such items as sample
size and source, sample selection procedures, and survey job
descriptions, to allow a determination of the adequacy of the data
provided and validity of the statistical methodology used in conducting
the survey in accordance with guidance issued by the OFLC national
office.
(3) The survey must be based upon recently collected data:
(i) Any published survey must have been published within 24 months
of the date of submission, must be the most current edition of the
survey, and must be based on data collected not more than 24 months
before the publication date.
(ii) A survey conducted by the employer must be based on data
collected within 24 months of the date it is submitted for
consideration.
(4) If the employer-provided survey is found not to be acceptable,
the NPC shall inform the employer in writing of the reasons the survey
was not accepted.
(5) The employer, after receiving notification that the survey it
provided for consideration is not acceptable, may file supplemental
information as provided in paragraph (g) of this section, file a new
request for a PWD, appeal under Sec. 655.11, or, if the initial PWD was
requested prior to submission of the employer survey, acquiesce to the
initial PWD.
(g) Submission of supplemental information by employer. (1) If the
employer disagrees with the wage level assigned to its job opportunity,
or if the NPC informs the employer its survey is not acceptable, or if
there is another legitimate basis for such a review, the employer may
submit supplemental information to the NPC.
(2) The NPC must consider one supplemental submission relating to
the employer's survey, the skill level assigned to the job opportunity,
or any other legitimate basis for the employer to request such a review.
If the NPC does not accept the employer's survey after considering the
supplemental information, or affirms its determination concerning the
skill level, the NPC must inform the employer, in writing, of the
reasons for its decision.
(3) The employer may then apply for a new wage determination, appeal
under Sec. 655.11, or acquiesce to the initial PWD.
(h) Validity period. The NPWC must specify the validity period of
the prevailing wage, which in no event may be more than 365 days and no
less than 90 days from the date that the determination is issued.
(i) Professional athletes. In computing the prevailing wage for a
professional athlete when the job opportunity is covered by professional
sports league
[[Page 314]]
rules or regulations, the wage set forth in those rules or regulations
is considered the prevailing wage. 8 U.S.C. 1182(p)(2).
(h) The prevailing wage cannot be lower than required by any other
law. No PWD for labor certification purposes made under this section
permits an employer to pay a wage lower than the highest wage required
by any applicable Federal, State, or local law.
(i) Retention of documentation. The employer must retain the PWD for
3 years and submitted to a CO in the event it is requested in an RFI or
an audit or to a Wage and Hour representative in the event of a Wage and
Hour investigation.
(j) Retention of documentation. The employer must retain the PWD for
3 years from the date of issuance or the date of a final determination
on the Application for Temporary Employment Certification, whichever is
later, and submit it to a CO if requested by a Notice of Deficiency,
described in Sec. 655.31, or audit, as described in Sec. 655.70, or to
a WHD representative during a WHD investigation.
(k) Guam. The requirements of this paragraph apply to any request
filed for an H-2B job opportunity on Guam.
[73 FR 78052, Dec. 19, 2008, as amended at 77 FR 10151, Feb. 21, 2012;
78 FR 24061, Apr. 24, 2013]
Effective Date Note: At 76 FR 3483, Jan. 19, 2011, Sec. 655.10 was
amended by revising paragraphs (b) introductory text, (b)(1), and (2);
removing paragraphs (b)(4) and (b)(5) and redesignating paragraph (b)(3)
as (b)(4) and (b)(6) as (b)(5); adding new paragraphs (b)(3), (b)(6),
and (b)(7); and removing paragraphs (f) and (g) and redesignating
paragraph (h) as (f) and paragraph (i) as (g), effective Jan. 1, 2012.
At 76 FR 45673, Aug. 1, 2011, the effective date was changed to Sept.
30, 2011. At 76 FR 59896, Sept. 28, 2011, the effective date was delayed
until Nov. 30, 2011. At 76 FR 73508, Nov. 29, 2011, the effective date
was further delayed until Jan. 1, 2012. At 76 FR 82115, Dec. 30, 2011,
the effective date was further delayed until Oct. 1, 2012. At 77 FR
60040, Oct. 2, 2012, the effective date was further delayed until Mar.
27, 2013. At 78 FR 19098, Mar. 29, 2013, the effective date was further
delayed until Oct. 1, 2013. At 78 FR 53643, August 30, 2013, effective
Sept. 30, 2013, the effective date was delayed indefinitely. For the
convenience of the user, the added and revised text is set forth as
follows:
Sec. 655.10 Determination of prevailing wage for temporary labor
certification purposes.
* * * * *
(b) Basis for prevailing wage determinations. The prevailing wage is
the highest of the following:
(1) The wage rate set forth in the CBA, if the job opportunity is
covered by a CBA that was negotiated at arms' length between the union
and the employer;
(2) The wage rate established under the DBA or SCA for the
occupation in the area of intended employment if the job opportunity is
in an occupation for which such a wage rate has been determined; or
(3) The arithmetic mean of the wages of workers similarly employed
in the occupation in the area of intended employment as determined by
the OES. This computation will be based on the arithmetic mean wage of
all workers in the occupation.
* * * * *
(6) In geographic areas where the OES does not gather wage data,
including but not limited to the jurisdiction of the Commonwealth of the
Northern Mariana Islands, and there is no CBA, DBA, or SCA wage
available for the job opportunity, the NPC will consider wage
information in the form of a wage survey provided by an employer in
making a prevailing wage determination. Such a survey may only be
submitted with a request for a prevailing wage determination. A request
filed under this paragraph does not need to be preceded by a request and
approval to submit wage information as described in paragraph (b)(7) of
this section.
(7)(i) An employer may submit a written request to the
Administrator, OFLC to provide a private wage survey for OFLC to
consider in making a prevailing wage determination which must
demonstrate that the following factors are present:
(A) There is no CBA, DBA, or SCA wage available for the job
opportunity;
(B) The job opportunity was not listed in the Dictionary of
Occupational Titles (DOT) and is not listed in the Standard Occupational
Classification (SOC) system, or if the job opportunity was listed in the
DOT or is listed in the SOC system, the DOT crosswalk to the SOC system
links to an occupational classification signifying a generalized set of
occupations as ``all other''; and
(C) The job description entails job duties which require knowledge,
skills, abilities, and work tasks that are significantly different, as
defined in guidance to be issued by the OFLC, than those in any other
SOC occupation.
(ii) The Administrator, OFLC may approve or deny an employer's
written request to
[[Page 315]]
provide a wage survey. If the Administrator, OFLC approves the
employer's written request, the Administrator, OFLC will send an
approval letter to the employer. Approvals shall be valid for 1 year
from the date of approval and only for the job opportunity and area of
intended employment specified in the original written request. This
approval does not constitute an acceptance of any particular wage
survey.
(iii) If approval is granted, the employer may submit a request for
a prevailing wage determination to the NPC along with a copy of the
Administrator, OFLC's approval letter and a complete copy of the private
survey. The NPC will evaluate the adequacy of the data provided and
validity of the statistical methodology used in conducting the survey in
accordance with guidance issued by the OFLC National Office.
(iv) In each case where the employer submits a wage survey for which
it seeks acceptance, the employer must provide specific information
about the survey methodology, including such items as sample size and
source, sample selection procedures, and survey job descriptions, to
allow a determination of the adequacy of the data provided and validity
of the statistical methodology used in conducting the survey in
accordance with guidance issued by the OFLC National Office.
(v) The survey must be based upon recently collected data:
(A) Any published survey must have been published within 24 months
of the date of submission, must be the most current edition of the
survey, and must be based on data collected not more than 24 months
before the publication date.
(B) A survey conducted by the employer must be based on data
collected within 24 months of the date it is submitted for
consideration.
(vi) The survey cannot as any part of its data wage information
reflect the wages of H-2B workers or other nonimmigrant workers.
(vii) If the NPC does not approve the survey for use in the H-2B
program, the NPC shall inform the employer in writing of the reasons the
survey was not accepted. An employer may appeal the NPC's decision in
accordance with Sec. 655.11.
Sec. 655.11 Registration of H-2B employers.
All employers that desire to hire H-2B workers must establish their
need for services or labor is temporary by filing an H-2B Registration
with the Chicago NPC.
(a) Registration filing. An employer must file an H-2B Registration.
The H-2B Registration must be accompanied by documentation evidencing:
(1) The number of positions that will be sought in the first year of
registration;
(2) The time period of need for the workers requested;
(3) That the nature of the employer's need for the services or labor
to be performed is non-agricultural and temporary, and is justified as
either a one-time occurrence, a seasonal need, a peakload need, or an
intermittent need, as defined at 8 CFR 214.2(h)(6)(ii)(B) and Sec.
655.6 (or in the case of job contractors, a seasonal need or one-time
occurrence); and
(4) For job contractors, the job contractor's own seasonal need or
one-time occurrence, such as through the provision of payroll records.
(b) Original signature. The H-2B Registration must bear the original
signature of the employer (and that of the employer's attorney or agent
if applicable). If and when the H-2B Registration is permitted to be
filed electronically, the employer will satisfy this requirement by
signing the H-2B Registration as directed by the CO.
(c) Timeliness of registration filing. A completed request for an H-
2B Registration must be received by no less than 120 calendar days and
no more than 150 calendar days before the employer's date of need,
except where the employer submits the H-2B Registration in support of an
emergency filing under Sec. 655.17.
(d) Temporary need. (1) The employer must establish that its need
for non-agricultural services or labor is temporary, regardless of
whether the underlying job is permanent or temporary. 8 CFR
214.2(h)(6)(ii)(A). A job contractor must also demonstrate through
documentation its own seasonal need or one-time occurrence.
(2) The employer's need will be assessed in accordance with the
definitions provided by the Secretary of DHS and as further defined in
Sec. 655.6.
(e) NPC review. The CO will review the H-2B Registration and its
accompanying documentation for completeness and make a determination
based on the following factors:
(1) The job classification and duties qualify as non-agricultural;
[[Page 316]]
(2) The employer's need for the services or labor to be performed is
temporary in nature, and for job contractors, demonstration of the job
contractor's own seasonal need or one-time occurrence;
(3) The number of worker positions and period of need are justified;
and
(4) The request represents a bona fide job opportunity.
(f) Mailing and postmark requirements. Any notice or request
pertaining to an H-2B Registration sent by the CO to an employer
requiring a response will be mailed to the address provided on the H-2B
Registration using methods to assure next day delivery, including
electronic mail. The employer's response to the notice or request must
be mailed using methods to assure next day delivery, including
electronic mail, and be sent by the due date specified by the CO or by
the next business day if the due date falls on a Saturday, Sunday or
Federal holiday.
(g) Request for information (RFI). If the CO determines the H-2B
Registration cannot be approved, the CO will issue an RFI. The RFI will
be issued within 7 business days of the CO's receipt of the H-2B
Registration. The RFI will:
(1) State the reason(s) why the H-2B Registration cannot be approved
and what supplemental information or documentation is needed to correct
the deficiencies;
(2) Specify a date, no later than 7 business days from the date the
RFI is issued, by which the supplemental information or documentation
must be sent by the employer;
(3) State that, upon receipt of a response to the RFI, the CO will
review the H-2B Registration as well as any supplemental information and
documentation and issue a Notice of Decision on the H-2B Registration.
The CO may, at his or her discretion, issue one or more additional RFIs
before issuing a Notice of Decision on the H-2B Registration; and
(4) State that failure to comply with an RFI, including not
responding in a timely manner or not providing all required
documentation within the specified timeframe, will result in a denial of
the H-2B Registration.
(h) Notice of Decision. The CO will notify the employer in writing
of the final decision on the H-2B Registration.
(1) Approved H-2B Registration. If the H-2B Registration is
approved, the CO will send a Notice of Decision to the employer, and a
copy to the employer's attorney or agent, if applicable. The Notice of
Decision will notify the employer that it is eligible to seek H-2B
workers in the occupational classification for the anticipated number of
positions and period of need stated on the approved H-2B Registration.
The CO may approve the H-2B Registration for a period of up to 3
consecutive years.
(2) Denied H-2B Registration. If the H-2B Registration is denied,
the CO will send a Notice of Decision to the employer, and a copy to the
employer's attorney or agent, if applicable. The Notice of Decision
will:
(i) State the reason(s) why the H-2B Registration is denied;
(ii) Offer the employer an opportunity to request administrative
review under Sec. 655.61 within 10 business days from the date the
Notice of Decision is issued and state that if the employer does not
request administrative review within that period the denial is final.
(i) Retention of documents. All employers filing an H-2B
Registration are required to retain any documents and records not
otherwise submitted proving compliance with this subpart. Such records
and documents must be retained for a period of 3 years from the date of
certification of the last Application for Temporary Employment
Certification supported by the H-2B Registration, if approved, or 3
years from the date the decision is issued if the H-2B Registration is
denied or 3 years from the day the Department receives written
notification from the employer withdrawing its pending H-2B
Registration.
(j) Transition period. In order to allow OFLC to make the necessary
changes to its program operations to accommodate the new registration
process, OFLC will announce in the Federal Register a separate
transition period for the registration process, and until that time,
will continue to
[[Page 317]]
adjudicate temporary need during the processing of applications.
[77 FR 10152, Feb. 21, 2012]
Sec. 655.12 Use of registration of H-2B employers.
(a) Upon approval of the H-2B Registration, the employer is
authorized for the specified period of up to 3 consecutive years from
the date the H-2B Registration is approved to file an Application for
Temporary Employment Certification, unless:
(1) The number of workers to be employed has increased by more than
20 percent (or 50 percent for employers requesting fewer than 10
workers) from the initial year;
(2) The dates of need for the job opportunity have changed by more
than a total of 30 calendar days from the initial year for the entire
period of need;
(3) The nature of the job classification and/or duties has
materially changed; or
(4) The temporary nature of the employer's need for services or
labor to be performed has materially changed.
(b) If any of the changes in paragraphs (a)(1) through (4) of this
section apply, the employer must file a new H-2B Registration in
accordance with Sec. 655.11.
[77 FR 10153, Feb. 21, 2012]
Sec. 655.13 Review of PWDs.
(a) Request for review of PWDs. Any employer desiring review of a
PWD must make a written request for such review to the NPWC Director
within 7 business days from the date the PWD is issued. The request for
review must clearly identify the PWD for which review is sought; set
forth the particular grounds for the request; and include any materials
submitted to the NPWC for purposes of securing the PWD.
(b) NPWC review. Upon the receipt of the written request for review,
the NPWC Director will review the employer's request and accompanying
documentation, including any supplementary material submitted by the
employer, and after review shall issue a Final Determination letter;
that letter may:
(1) Affirm the PWD issued by the NPWC; or
(2) Modify the PWD.
(c) Request for review by BALCA. Any employer desiring review of the
NPWC Director's decision on a PWD must make a written request for review
of the determination by BALCA within 10 business days from the date the
Final Determination letter is issued.
(1) The request for BALCA review must be in writing and addressed to
the NPWC Director who made the final determinations. Upon receipt of a
request for BALCA review, the NPWC will prepare an appeal file and
submit it to BALCA.
(2) The request for review, statements, briefs, and other
submissions of the parties must contain only legal arguments and may
refer to only the evidence that was within the record upon which the
decision on the PWD was based.
(3) BALCA will handle appeals in accordance with Sec. 655.61.
[77 FR 10153, Feb. 21, 2012]
Sec. 655.14 [Reserved]
Application for Temporary Employment Certification Filing Procedures
Sec. 655.15 Application filing requirements.
All registered employers that desire to hire H-2B workers must file
an Application for Temporary Employment Certification with the NPC
designated by the Administrator, OFLC. Except for employers that qualify
for emergency procedures at Sec. 655.17, employers that fail to
register under the procedures in Sec. 655.11 and/or that fail to submit
a PWD obtained under Sec. 655.10 will not be eligible to file an
Application for Temporary Employment Certification and their
applications will be returned without review.
(a) What to file. A registered employer seeking H-2B workers must
file a completed Application for Temporary Employment Certification (ETA
Form 9142 and the appropriate appendices and valid PWD), a copy of the
job order being submitted concurrently to the SWA serving the area of
intended employment, as set forth in Sec. 655.16, and copies of all
contracts and agreements
[[Page 318]]
with any agent and/or recruiter, executed in connection with the job
opportunities and all information required, as specified in Sec. Sec.
655.8 and 655.9.
(b) Timeliness. A completed Application for Temporary Employment
Certification must be filed no more than 90 calendar days and no less
than 75 calendar days before the employer's date of need.
(c) Location and method of filing. The employer must submit the
Application for Temporary Employment Certification and all required
supporting documentation to the NPC. At a future date the Department may
also permit an Application for Temporary Employment Certification to be
filed electronically in addition to or instead of by mail. Notice of
such procedure will be published in the Federal Register.
(d) Original signature. The Application for Temporary Employment
Certification must bear the original signature of the employer (and that
of the employer's authorized attorney or agent if the employer is so
represented). If and when an Application for Temporary Employment
Certification is permitted to be filed electronically, the employer will
satisfy this requirement by signing the Application for Temporary
Employment Certification as directed by the CO.
(e) Requests for multiple positions. Certification of more than one
position may be requested on the Application for Temporary Employment
Certification as long as all H-2B workers will perform the same services
or labor under the same terms and conditions, in the same occupation, in
the same area of intended employment, and during the same period of
employment.
(f) Separate applications. Only one Application for Temporary
Employment Certification may be filed for worksite(s) within one area of
intended employment for each job opportunity with an employer for each
period of employment. Except where otherwise permitted under Sec.
655.4, an association or other organization of employers is not
permitted to file master applications on behalf of its employer-members
under the H-2B program.
(g) One-time occurrence. Where a one-time occurrence lasts longer
than 1 year, the CO will instruct the employer on any additional
recruitment requirements with respect to the continuing validity of the
labor market test or offered wage obligation.
(h) Information dissemination. Information received in the course of
processing a request for an H-2B Registration, an Application for
Temporary Employment Certification or program integrity measures such as
audits may be forwarded from OFLC to WHD, or any other Federal agency as
appropriate, for investigative and/or enforcement purposes.
[77 FR 10153, Feb. 21, 2012]
Sec. 655.16 Filing of the job order at the SWA.
(a) Submission of the job order. (1) The employer must submit the
job order to the SWA serving the area of intended employment at the same
time it submits the Application for Temporary Employment Certification
and a copy of the job order to the NPC in accordance with Sec. 655.15.
If the job opportunity is located in more than one State within the same
area of intended employment, the employer may submit the job order to
any one of the SWAs having jurisdiction over the anticipated worksites,
but must identify the receiving SWA on the copy of the job order
submitted to the NPC with its Application for Temporary Employment
Certification. The employer must inform the SWA that the job order is
being placed in connection with a concurrently submitted Application for
Temporary Employment Certification for H-2B workers.
(2) In addition to complying with State-specific requirements
governing job orders, the job order submitted to the SWA must satisfy
the requirements set forth in Sec. 655.18.
(b) SWA review of the job order. The SWA must review the job order
and ensure that it complies with criteria set forth in Sec. 655.18. If
the SWA determines that the job order does not comply with the
applicable criteria, the SWA must inform the CO at the NPC of the noted
deficiencies within 6 business days of receipt of the job order.
(c) Intrastate and interstate clearance. Upon receipt of the Notice
of Acceptance, as described in Sec. 655.33, the SWA must promptly place
the job order in intrastate clearance and provide to other states as
directed by the CO.
[[Page 319]]
(d) Duration of job order posting and SWA referral of U.S. workers.
Upon receipt of the Notice of Acceptance, any SWA in receipt of the
employer's job order must keep the job order on its active file until
the end of the recruitment period, as set forth in Sec. 655.40(c), and
must refer to the employer in a manner consistent with Sec. 655.47 all
qualified U.S. workers who apply for the job opportunity or on whose
behalf a job application is made.
(e) Amendments to a job order. The employer may amend the job order
at any time before the CO makes a final determination, in accordance
with procedures set forth in Sec. 655.35.
[77 FR 10154, Feb. 21, 2012]
Sec. 655.17 Emergency situations.
(a) Waiver of time period. The CO may waive the time period(s) for
filing an H-2B Registration and/or an Application for Temporary
Employment Certification for employers that have good and substantial
cause, provided that the CO has sufficient time to thoroughly test the
domestic labor market on an expedited basis and to make a final
determination as required by Sec. 655.50.
(b) Employer requirements. The employer requesting a waiver of the
required time period(s) must submit to the NPC a request for a waiver of
the time period requirement, a completed Application for Temporary
Employment Certification and the proposed job order identifying the SWA
serving the area of intended employment, and must otherwise meet the
requirements of Sec. 655.15. If the employer did not previously apply
for an H-2B Registration, the employer must also submit a completed H-2B
Registration with all supporting documentation, as required by Sec.
655.11. If the employer did not previously apply for a PWD, the employer
must also submit a completed PWD request. The employer's waiver request
must include detailed information describing the good and substantial
cause that has necessitated the waiver request. Good and substantial
cause may include, but is not limited to, the substantial loss of U.S.
workers due to Acts of God, or a similar unforeseeable man-made
catastrophic event (such as an oil spill or controlled flooding) that is
wholly outside of the employer's control, unforeseeable changes in
market conditions, or pandemic health issues. A denial of a previously
submitted H-2B Registration in accordance with the procedures set forth
in Sec. 655.11 does not constitute good and substantial cause
necessitating a waiver under this section.
(c) Processing of emergency applications. The CO will process the
emergency H-2B Registration and/or Application for Temporary Employment
Certification and job order in a manner consistent with the provisions
of this subpart and make a determination on the Application for
Temporary Employment Certification in accordance with Sec. 655.50. If
the CO grants the waiver request, the CO will forward a Notice of
Acceptance and the approved job order to the SWA serving the area of
intended employment identified by the employer in the job order. If the
CO determines that the certification cannot be granted because, under
paragraph (a) of this section, the request for emergency filing is not
justified and/or there is not sufficient time to make a determination of
temporary need or ensure compliance with the criteria for certification
contained in Sec. 655.51, the CO will send a Final Determination letter
to the employer in accordance with Sec. 655.53.
[77 FR 10154, Feb. 21, 2012]
Sec. 655.18 Job order assurances and contents.
(a) General. Each job order placed in connection with an Application
for Temporary Employment Certification must at a minimum include the
information contained in paragraph (b) of this section. In addition, by
submitting the Application for Temporary Employment Certification, an
employer agrees to comply with the following assurances with respect to
each job order:
(1) Prohibition against preferential treatment. The employer's job
order must offer to U.S. workers no less than the same benefits, wages,
and working conditions that the employer is offering, intends to offer,
or will provide to H-2B workers. Job offers may not impose on U.S.
workers any restrictions or obligations that will not be imposed on the
employer's H-2B workers. This
[[Page 320]]
does not relieve the employer from providing to H-2B workers at least
the minimum benefits, wages, and working conditions which must be
offered to U.S. workers consistent with this section.
(2) Bona fide job requirements. Each job qualification and
requirement must be listed in the job order and must be bona fide and
consistent with the normal and accepted qualifications and requirements
imposed by non-H-2B employers in the same occupation and area of
intended employment.
(b) Contents. In addition to complying with the assurances in
paragraph (a) of this section, the employer's job order must meet the
following requirements:
(1) State the employer's name and contact information;
(2) Indicate that the job opportunity is a temporary, full-time
position, including the total number of job openings the employer
intends to fill;
(3) Describe the job opportunity for which certification is sought
with sufficient information to apprise U.S. workers of the services or
labor to be performed, including the duties, the minimum education and
experience requirements, the work hours and days, and the anticipated
start and end dates of the job opportunity;
(4) Indicate the geographic area of intended employment with enough
specificity to apprise applicants of any travel requirements and where
applicants will likely have to reside to perform the services or labor;
(5) Specify the wage that the employer is offering, intends to
offer, or will provide to H-2B workers, or, in the event that there are
multiple wage offers (such as where an itinerary is authorized through
special procedures for an employer), the range of wage offers, and
ensure that the wage offer equals or exceeds the highest of the
prevailing wage or the Federal, State, or local minimum wage;
(6) If applicable, specify that overtime will be available to the
worker and the wage offer(s) for working any overtime hours;
(7) If applicable, state that on-the-job training will be provided
to the worker;
(8) State that the employer will use a single workweek as its
standard for computing wages due;
(9) Specify the frequency with which the worker will be paid, which
must be at least every 2 weeks or according to the prevailing practice
in the area of intended employment, whichever is more frequent;
(10) If the employer provides the worker with the option of board,
lodging, or other facilities, including fringe benefits, or intends to
assist workers to secure such lodging, disclose the provision and cost
of the board, lodging, or other facilities, including fringe benefits or
assistance to be provided;
(11) State that the employer will make all deductions from the
worker's paycheck required by law. Specify any deductions the employer
intends to make from the worker's paycheck which are not required by
law, including, if applicable, any deductions for the reasonable cost of
board, lodging, or other facilities;
(12) Detail how the worker will be provided with or reimbursed for
transportation and subsistence from the place from which the worker has
come to work for the employer, whether in the U.S. or abroad, to the
place of employment, if the worker completes 50 percent of the period of
employment covered by the job order, consistent with Sec.
655.20(j)(1)(i);
(13) State that the employer will provide or pay for the worker's
cost of return transportation and daily subsistence from the place of
employment to the place from which the worker, disregarding intervening
employment, departed to work for the employer, if the worker completes
the certified period of employment or is dismissed from employment for
any reason by the employer before the end of the period, consistent with
Sec. 655.20(j)(1)(ii);
(14) If applicable, state that the employer will provide daily
transportation to and from the worksite;
(15) State that the employer will reimburse the H-2B worker in the
first workweek for all visa, visa processing, border crossing, and other
related fees, including those mandated by the government, incurred by
the H-2B worker (but need not include passport expenses or other charges
primarily for the benefit of the worker);
(16) State that the employer will provide to the worker, without
charge or
[[Page 321]]
deposit charge, all tools, supplies, and equipment required to perform
the duties assigned, in accordance with Sec. 655.20(k);
(17) State the applicability of the three-fourths guarantee,
offering the worker employment for a total number of work hours equal to
at least three-fourths of the workdays of each 12-week period, if the
period of employment covered by the job order is 120 or more days, or
each 6-week period, if the period of employment covered by the job order
is less than 120 days, in accordance with Sec. 655.20(f); and
(18) Instruct applicants to inquire about the job opportunity or
send applications, indications of availability, and/or resumes directly
to the nearest office of the SWA in the State in which the advertisement
appeared and include the SWA contact information.
[77 FR 10154, Feb. 21, 2012]
Sec. 655.19 Job contractor filing requirements.
(a) Provided that a job contractor and any employer-client are joint
employers, a job contractor may submit an Application for Temporary
Employment Certification on behalf of itself and that employer-client.
(b) A job contractor must have separate contracts with each
different employer-client. Each contract or agreement may support only
one Application for Temporary Employment Certification for each
employer-client job opportunity within a single area of intended
employment.
(c) Either the job contractor or its employer-client may submit an
ETA Form 9141, Application for Prevailing Wage Determination, describing
the job opportunity to the NPWC. However, each of the joint employers is
separately responsible for ensuring that the wage offer listed on the
Application for Temporary Employment Certification, ETA Form 9142, and
related recruitment at least equals the prevailing wage rate determined
by the NPWC and that all other wage obligations are met.
(d)(1) A job contractor that is filing as a joint employer with its
employer-client must submit to the NPC a completed Application for
Temporary Employment Certification, ETA Form 9142, that clearly
identifies the joint employers (the job contractor and its employer-
client) and the employment relationship (including the actual worksite),
in accordance with the instructions provided by the Department. The
Application for Temporary Employment Certification must bear the
original signature of the job contractor and the employer-client and be
accompanied by a recruitment report bearing both joint employers'
signatures and the contract or agreement establishing the employers'
relationship related to the workers sought.
(2) By signing the Application for Temporary Employment
Certification, each employer independently attests to the conditions of
employment required of an employer participating in the H-2B program and
assumes full responsibility for the accuracy of the representations made
in the application and for all of the responsibilities of an employer in
the H-2B program.
(e)(1) Either the job contractor or its employer-client may place
the required job order and conduct recruitment as described in Sec.
655.16 and Sec. Sec. 655.42-46. Also, either one of the joint employers
may assume responsibility for interviewing applicants. However, both of
the joint employers must sign the recruitment report that is submitted
to the NPC with the Application for Temporary Employment Certification,
ETA Form 9142.
(2) The job order and all recruitment conducted by joint employers
must satisfy the content requirements identified in Sec. 655.18 and
Sec. 655.41. Additionally, in order to fully apprise applicants of the
job opportunity and avoid potential confusion inherent in a job
opportunity involving two employers, joint employer recruitment must
clearly identify both employers (the job contractor and its employer-
client) by name and must clearly identify the worksite location(s) where
workers will perform labor or services.
(3)(i) Provided that all of the employer-clients' job opportunities
are in the same occupation and area of intended employment and have the
same requirements and terms and conditions
[[Page 322]]
of employment, including dates of employment, a job contractor may
combine more than one of its joint employer employer-clients' job
opportunities in a single advertisement. Each advertisement must fully
apprise potential workers of the job opportunity available with each
employer-client and otherwise satisfy the advertising content
requirements required for all H-2B-related advertisements, as identified
in Sec. 655.41. Such a shared advertisement must clearly identify the
job contractor by name, the joint employment relationship, and the
number of workers sought for each job opportunity, identified by
employer-client name and location (e.g. 5 openings with Employer-Client
1 (worksite location), 3 openings with Employer-Client 2 (worksite
location)).
(ii) In addition, the advertisement must contain the following
statement: ``Applicants may apply for any or all of the jobs listed.
When applying, please identify the job(s) (by company and work location)
you are applying to for the entire period of employment specified.'' If
an applicant fails to identify one or more specific work location(s),
that applicant is presumed to have applied to all work locations listed
in the advertisement.
(f) If an application for joint employers is approved, the NPC will
issue one certification and send it to the job contractor. In order to
ensure notice to both employers, a courtesy copy of the certification
cover letter will be sent to the employer-client.
(g) When submitting a certified Application for Temporary Employment
Certification to USCIS, the job contractor should submit the complete
ETA Form 9142 containing the original signatures of both the job
contractor and employer-client.
[77 FR 10151, Feb. 21, 2012]
Assurances and Obligations
Sec. 655.20 Assurances and obligations of H-2B employers.
An employer employing H-2B workers and/or workers in corresponding
employment under an Application for Temporary Employment Certification
has agreed as part of the Application for Temporary Employment
Certification that it will abide by the following conditions with
respect to its H-2B workers and any workers in corresponding employment:
(a) Rate of pay. (1) The offered wage in the job order equals or
exceeds the highest of the prevailing wage or Federal minimum wage,
State minimum wage, or local minimum wage. The employer must pay at
least the offered wage, free and clear, during the entire period of the
Application for Temporary Employment Certification granted by OFLC.
(2) The offered wage is not based on commissions, bonuses, or other
incentives, including paying on a piece-rate basis, unless the employer
guarantees a wage earned every workweek that equals or exceeds the
offered wage.
(3) If the employer requires one or more minimum productivity
standards of workers as a condition of job retention, the standards must
be specified in the job order and the employer must demonstrate that
they are normal and usual for non-H-2B employers for the same occupation
in the area of intended employment.
(4) An employer that pays on a piece-rate basis must demonstrate
that the piece rate is no less than the normal rate paid by non-H-2B
employers to workers performing the same activity in the area of
intended employment. The average hourly piece rate earnings must result
in an amount at least equal to the offered wage. If the worker is paid
on a piece rate basis and at the end of the workweek the piece rate does
not result in average hourly piece rate earnings during the workweek at
least equal to the amount the worker would have earned had the worker
been paid at the offered hourly wage, then the employer must supplement
the worker's pay at that time so that the worker's earnings are at least
as much as the worker would have earned during the workweek if the
worker had instead been paid at the offered hourly wage for each hour
worked.
(b) Wages free and clear. The payment requirements for wages in this
section will be satisfied by the timely payment of such wages to the
worker either in cash or negotiable instrument payable at par. The
payment must be made finally and unconditionally and ``free
[[Page 323]]
and clear.'' The principles applied in determining whether deductions
are reasonable and payments are received free and clear and the
permissibility of deductions for payments to third persons are explained
in more detail in 29 CFR part 531.
(c) Deductions. The employer must make all deductions from the
worker's paycheck required by law. The job order must specify all
deductions not required by law which the employer will make from the
worker's pay; any such deductions not disclosed in the job order are
prohibited. The wage payment requirements of paragraph (b) of this
section are not met where unauthorized deductions, rebates, or refunds
reduce the wage payment made to the worker below the minimum amounts
required by the offered wage or where the worker fails to receive such
amounts free and clear because the worker ``kicks back'' directly or
indirectly to the employer or to another person for the employer's
benefit the whole or part of the wages delivered to the worker.
Authorized deductions are limited to: Those required by law, such as
taxes payable by workers that are required to be withheld by the
employer and amounts due workers which the employer is required by court
order to pay to another; deductions for the reasonable cost or fair
value of board, lodging, and facilities furnished; and deductions of
amounts which are authorized to be paid to third persons for the
worker's account and benefit through his or her voluntary assignment or
order or which are authorized by a collective bargaining agreement with
bona fide representatives of workers which covers the employer.
Deductions for amounts paid to third persons for the worker's account
and benefit which are not so authorized or are contrary to law or from
which the employer, agent or recruiter including any agents or employees
of these entities, or any affiliated person derives any payment, rebate,
commission, profit, or benefit directly or indirectly, may not be made
if they reduce the actual wage paid to the worker below the offered wage
indicated on the Application for Temporary Employment Certification.
(d) Job opportunity is full-time. The job opportunity is a full-time
temporary position, consistent with Sec. 655.5, and the employer must
use a single workweek as its standard for computing wages due. An
employee's workweek must be a fixed and regularly recurring period of
168 hours--seven consecutive 24-hour periods. It need not coincide with
the calendar week but may begin on any day and at any hour of the day.
(e) Job qualifications and requirements. Each job qualification and
requirement must be listed in the job order and must be bona fide and
consistent with the normal and accepted qualifications and requirements
imposed by non-H-2B employers in the same occupation and area of
intended employment. The employer's job qualifications and requirements
imposed on U.S. workers must be no less favorable than the
qualifications and requirements that the employer is imposing or will
impose on H-2B workers. A qualification means a characteristic that is
necessary to the individual's ability to perform the job in question. A
requirement means a term or condition of employment which a worker is
required to accept in order to obtain the job opportunity. The CO may
require the employer to submit documentation to substantiate the
appropriateness of any job qualification and/or requirement specified in
the job order.
(f) Three-fourths guarantee. (1) The employer must guarantee to
offer the worker employment for a total number of work hours equal to at
least three-fourths of the workdays in each 12-week period (each 6-week
period if the period of employment covered by the job order is less than
120 days) beginning with the first workday after the arrival of the
worker at the place of employment or the advertised first date of need,
whichever is later, and ending on the expiration date specified in the
job order or in its extensions, if any. See the exception in paragraph
(y) of this section.
(2) For purposes of this paragraph a workday means the number of
hours in a workday as stated in the job order. The employer must offer a
total number of hours of work to ensure the provision of sufficient work
to reach the three-fourths guarantee in each 12-
[[Page 324]]
week period (each 6-week period if the period of employment covered by
the job order is less than 120 days) during the work period specified in
the job order, or during any modified job order period to which the
worker and employer have mutually agreed and that has been approved by
the CO.
(3) In the event the worker begins working later than the specified
beginning date the guarantee period begins with the first workday after
the arrival of the worker at the place of employment, and continues
until the last day during which the job order and all extensions thereof
are in effect.
(4) The 12-week periods (6-week periods if the period of employment
covered by the job order is less than 120 days) to which the guarantee
applies are based upon the workweek used by the employer for pay
purposes. The first 12-week period (or 6-week period, as appropriate)
also includes any partial workweek, if the first workday after the
worker's arrival at the place of employment is not the beginning of the
employer's workweek, with the guaranteed number of hours increased on a
pro rata basis (thus, the first period may include up to 12 weeks and 6
days (or 6 weeks and 6 days, as appropriate)). The final 12-week period
(or 6-week period, as appropriate) includes any time remaining after the
last full 12-week period (or 6-week period) ends, and thus may be as
short as 1 day, with the guaranteed number of hours decreased on a pro
rata basis.
(5) Therefore, if, for example, a job order is for a 32-week period
(a period greater than 120 days), during which the normal workdays and
work hours for the workweek are specified as 5 days a week, 7 hours per
day, the worker would have to be guaranteed employment for at least 315
hours (12 weeks x 35 hours/week = 420 hours x 75 percent = 315) in the
first 12-week period, at least 315 hours in the second 12-week period,
and at least 210 hours (8 weeks x 35 hours/week = 280 hours x 75 percent
= 210) in the final partial period. If the job order is for a 16-week
period (less than 120 days), during which the normal workdays and work
hours for the workweek are specified as 5 days a week, 7 hours per day,
the worker would have to be guaranteed employment for at least 157.5
hours (6 weeks x 35 hours/week = 210 hours x 75 percent = 157.5) in the
first 6-week period, at least 157.5 hours in the second 6-week period,
and at least 105 hours (4 weeks x 35 hours/week = 140 hours x 75 percent
= 105) in the final partial period.
(6) If the worker is paid on a piece rate basis, the employer must
use the worker's average hourly piece rate earnings or the offered wage,
whichever is higher, to calculate the amount due under the guarantee.
(7) A worker may be offered more than the specified hours of work on
a single workday. For purposes of meeting the guarantee, however, the
worker will not be required to work for more than the number of hours
specified in the job order for a workday. The employer, however, may
count all hours actually worked in calculating whether the guarantee has
been met. If during any 12-week period (6-week period if the period of
employment covered by the job order is less than 120 days) during the
period of the job order the employer affords the U.S. or H-2B worker
less employment than that required under paragraph (f)(1) of this
section, the employer must pay such worker the amount the worker would
have earned had the worker, in fact, worked for the guaranteed number of
days. An employer has not met the work guarantee if the employer has
merely offered work on three-fourths of the workdays in an 12-week
period (or 6-week period, as appropriate) if each workday did not
consist of a full number of hours of work time as specified in the job
order.
(8) Any hours the worker fails to work, up to a maximum of the
number of hours specified in the job order for a workday, when the
worker has been offered an opportunity to work in accordance with
paragraph (f)(1) of this section, and all hours of work actually
performed (including voluntary work over 8 hours in a workday), may be
counted by the employer in calculating whether each 12-week period (or
6-week period, as appropriate) of guaranteed employment has been met. An
employer seeking to calculate whether the guaranteed number of hours has
[[Page 325]]
been met must maintain the payroll records in accordance with this part.
(g) Impossibility of fulfillment. If, before the expiration date
specified in the job order, the services of the worker are no longer
required for reasons beyond the control of the employer due to fire,
weather, or other Act of God, or similar unforeseeable man-made
catastrophic event (such as an oil spill or controlled flooding) that is
wholly outside the employer's control that makes the fulfillment of the
job order impossible, the employer may terminate the job order with the
approval of the CO. In the event of such termination of a job order, the
employer must fulfill a three-fourths guarantee, as described in
paragraph (f) of this section, for the time that has elapsed from the
start date listed in the job order or the first workday after the
arrival of the worker at the place of employment, whichever is later, to
the time of its termination. The employer must make efforts to transfer
the H-2B worker or worker in corresponding employment to other
comparable employment acceptable to the worker and consistent with the
INA, as applicable. If a transfer is not effected, the employer must
return the worker, at the employer's expense, to the place from which
the worker (disregarding intervening employment) came to work for the
employer, or transport the worker to the worker's next certified H-2B
employer, whichever the worker prefers.
(h) Frequency of pay. The employer must state in the job order the
frequency with which the worker will be paid, which must be at least
every 2 weeks or according to the prevailing practice in the area of
intended employment, whichever is more frequent. Employers must pay
wages when due.
(i) Earnings statements. (1) The employer must keep accurate and
adequate records with respect to the workers' earnings, including but
not limited to: Records showing the nature, amount and location(s) of
the work performed; the number of hours of work offered each day by the
employer (broken out by hours offered both in accordance with and over
and above the three-fourths guarantee in paragraph (f) of this section);
the hours actually worked each day by the worker; if the number of hours
worked by the worker is less than the number of hours offered, the
reason(s) the worker did not work; the time the worker began and ended
each workday; the rate of pay (both piece rate and hourly, if
applicable); the worker's earnings per pay period; the worker's home
address; and the amount of and reasons for any and all deductions taken
from or additions made to the worker's wages.
(2) The employer must furnish to the worker on or before each payday
in one or more written statements the following information:
(i) The worker's total earnings for each workweek in the pay period;
(ii) The worker's hourly rate and/or piece rate of pay;
(iii) For each workweek in the pay period the hours of employment
offered to the worker (showing offers in accordance with the three-
fourths guarantee as determined in paragraph (f) of this section,
separate from any hours offered over and above the guarantee);
(iv) For each workweek in the pay period the hours actually worked
by the worker;
(v) An itemization of all deductions made from or additions made to
the worker's wages;
(vi) If piece rates are used, the units produced daily;
(vii) The beginning and ending dates of the pay period; and
(viii) The employer's name, address and FEIN.
(j) Transportation and visa fees. (1)(i) Transportation to the place
of employment. The employer must provide or reimburse the worker for
transportation and subsistence from the place from which the worker has
come to work for the employer, whether in the U.S. or abroad, to the
place of employment if the worker completes 50 percent of the period of
employment covered by the job order (not counting any extensions). The
employer may arrange and pay for the transportation and subsistence
directly, advance at a minimum the most economical and reasonable common
carrier cost of the transportation and subsistence to the worker before
the worker's departure, or pay the worker for the reasonable costs
incurred by the worker. When it is the
[[Page 326]]
prevailing practice of non-H-2B employers in the occupation in the area
to do so or when the employer extends such benefits to similarly
situated H-2B workers, the employer must advance the required
transportation and subsistence costs (or otherwise provide them) to
workers in corresponding employment who are traveling to the employer's
worksite. The amount of the transportation payment must be no less (and
is not required to be more) than the most economical and reasonable
common carrier transportation charges for the distances involved. The
amount of the daily subsistence must be at least the amount permitted in
Sec. 655.173 of subpart B of this part. Where the employer will
reimburse the reasonable costs incurred by the worker, it must keep
accurate and adequate records of: The cost of transportation and
subsistence incurred by the worker; the amount reimbursed; and the dates
of reimbursement. Note that the FLSA applies independently of the H-2B
requirements and imposes obligations on employers regarding payment of
wages.
(ii) Transportation from the place of employment. If the worker
completes the period of employment covered by the job order (not
counting any extensions), or if the worker is dismissed from employment
for any reason by the employer before the end of the period, and the
worker has no immediate subsequent H-2B employment, the employer must
provide or pay at the time of departure for the worker's cost of return
transportation and daily subsistence from the place of employment to the
place from which the worker, disregarding intervening employment,
departed to work for the employer. If the worker has contracted with a
subsequent employer that has not agreed in the job order to provide or
pay for the worker's transportation from the employer's worksite to such
subsequent employer's worksite, the employer must provide or pay for
that transportation and subsistence. If the worker has contracted with a
subsequent employer that has agreed in the job order to provide or pay
for the worker's transportation from the employer's worksite to such
subsequent employer's worksite, the subsequent employer must provide or
pay for such expenses.
(iii) Employer-provided transportation. All employer-provided
transportation must comply with all applicable Federal, State, and local
laws and regulations and must provide, at a minimum, the same vehicle
safety standards, driver licensure requirements, and vehicle insurance
as required under 49 CFR parts 390, 393, and 396.
(iv) Disclosure. All transportation and subsistence costs that the
employer will pay must be disclosed in the job order.
(2) The employer must pay or reimburse the worker in the first
workweek for all visa, visa processing, border crossing, and other
related fees (including those mandated by the government) incurred by
the H-2B worker, but not for passport expenses or other charges
primarily for the benefit of the worker.
(k) Employer-provided items. The employer must provide to the
worker, without charge or deposit charge, all tools, supplies, and
equipment required to perform the duties assigned.
(l) Disclosure of job order. The employer must provide to an H-2B
worker if outside of the U.S. no later than the time at which the worker
applies for the visa, or to a worker in corresponding employment no
later than on the day work commences, a copy of the job order including
any subsequent approved modifications. For an H-2B worker changing
employment from an H-2B employer to a subsequent H-2B employer, the copy
must be provided no later than the time an offer of employment is made
by the subsequent H-2B employer. The disclosure of all documents
required by this paragraph must be provided in a language understood by
the worker, as necessary or reasonable.
(m) Notice of worker rights. The employer must post and maintain in
a conspicuous location at the place of employment a poster provided by
the Department which sets out the rights and protections for H-2B
workers and workers in corresponding employment. The employer must post
the poster in English. To the extent necessary, the
[[Page 327]]
employer must request and post additional posters, as made available by
the Department, in any language common to a significant portion of the
workers if they are not fluent in English.
(n) No unfair treatment. The employer has not and will not
intimidate, threaten, restrain, coerce, blacklist, discharge or in any
manner discriminate against, and has not and will not cause any person
to intimidate, threaten, restrain, coerce, blacklist, discharge, or in
any manner discriminate against, any person who has:
(1) Filed a complaint under or related to 8 U.S.C. 1184(c), 29 CFR
part 503, or this subpart, or any other Department regulation
promulgated thereunder;
(2) Instituted or caused to be instituted any proceeding under or
related to 8 U.S.C. 1184(c), 29 CFR part 503, or this subpart or any
other Department regulation promulgated thereunder;
(3) Testified or is about to testify in any proceeding under or
related to 8 U.S.C. 1184(c), 29 CFR part 503, or this subpart or any
other Department regulation promulgated thereunder;
(4) Consulted with a workers' center, community organization, labor
union, legal assistance program, or an attorney on matters related to 8
U.S.C. 1184(c), 29 CFR part 503, or this subpart or any other Department
regulation promulgated thereunder; or
(5) Exercised or asserted on behalf of himself/herself or others any
right or protection afforded by 8 U.S.C. 1184(c), 29 CFR part 503, or
this subpart or any other Department regulation promulgated thereunder.
(o) Comply with the prohibitions against employees paying fees. The
employer and its attorney, agents, or employees have not sought or
received payment of any kind from the worker for any activity related to
obtaining H-2B labor certification or employment, including payment of
the employer's attorney or agent fees, application and H-2B Petition
fees, recruitment costs, or any fees attributed to obtaining the
approved Application for Temporary Employment Certification. For
purposes of this paragraph, payment includes, but is not limited to,
monetary payments, wage concessions (including deductions from wages,
salary, or benefits), kickbacks, bribes, tributes, in kind payments, and
free labor. All wages must be paid free and clear. This provision does
not prohibit employers or their agents from receiving reimbursement for
costs that are the responsibility and primarily for the benefit of the
worker, such as government-required passport fees.
(p) Contracts with third parties to comply with prohibitions. The
employer must contractually prohibit in writing any agent or recruiter
(or any agent or employee of such agent or recruiter) whom the employer
engages, either directly or indirectly, in international recruitment of
H-2B workers to seek or receive payments or other compensation from
prospective workers. The contract must include the following statement:
``Under this agreement, [name of agent, recruiter] and any agent of or
employee of [name of agent or recruiter] are prohibited from seeking or
receiving payments from any prospective employee of [employer name] at
any time, including before or after the worker obtains employment.
Payments include but are not limited to, any direct or indirect fees
paid by such employees for recruitment, job placement, processing,
maintenance, attorneys' fees, agent fees, application fees, or petition
fees.''
(q) Prohibition against preferential treatment of foreign workers.
The employer's job offer must offer to U.S. workers no less than the
same benefits, wages, and working conditions that the employer is
offering, intends to offer, or will provide to H-2B workers. Job offers
may not impose on U.S. workers any restrictions or obligations that will
not be imposed on the employer's H-2B workers. This does not relieve the
employer from providing to H-2B workers at least the minimum benefits,
wages, and working conditions which must be offered to U.S. workers
consistent with this section.
(r) Non-discriminatory hiring practices. The job opportunity is, and
through the period set forth in paragraph (t) of this section must
continue to be, open to any qualified U.S. worker regardless of race,
color, national origin, age, sex, religion, disability, or citizenship.
Rejections of any U.S. workers who applied or apply for the job must
only be
[[Page 328]]
for lawful, job-related reasons, and those not rejected on this basis
have been or will be hired. In addition, the employer has and will
continue to retain records of all hired workers and rejected applicants
as required by Sec. 655.56.
(s) Recruitment requirements. The employer must conduct all required
recruitment activities, including any additional employer-conducted
recruitment activities as directed by the CO, and as specified in
Sec. Sec. 655.40-655.46.
(t) Continuing requirement to hire U.S. workers. The employer has
and will continue to cooperate with the SWA by accepting referrals of
all qualified U.S. workers who apply (or on whose behalf a job
application is made) for the job opportunity, and must provide
employment to any qualified U.S. worker who applies to the employer for
the job opportunity, until 21 days before the date of need.
(u) No strike or lockout. There is no strike or lockout at any of
the employer's worksites within the area of intended employment for
which the employer is requesting H-2B certification at the time the
Application for Temporary Employment Certification is filed.
(v) No recent or future layoffs. The employer has not laid off and
will not lay off any similarly employed U.S. worker in the occupation
that is the subject of the Application for Temporary Employment
Certification in the area of intended employment within the period
beginning 120 calendar days before the date of need through the end of
the period of certification. A layoff for lawful, job-related reasons
such as lack of work or the end of a season is permissible if all H-2B
workers are laid off before any U.S. worker in corresponding employment.
(w) Contact with former U.S. employees. The employer will contact
(by mail or other effective means) its former U.S. workers, including
those who have been laid off within 120 calendar days before the date of
need (except those who were dismissed for cause or who abandoned the
worksite), employed by the employer in the occupation at the place of
employment during the previous year, disclose the terms of the job
order, and solicit their return to the job.
(x) Area of intended employment and job opportunity. The employer
must not place any H-2B workers employed under the approved Application
for Temporary Employment Certification outside the area of intended
employment or in a job opportunity not listed on the approved
Application for Temporary Employment Certification unless the employer
has obtained a new approved Application for Temporary Employment
Certification.
(y) Abandonment/termination of employment. Upon the separation from
employment of worker(s) employed under the Application for Temporary
Employment Certification or workers in corresponding employment, if such
separation occurs before the end date of the employment specified in the
Application for Temporary Employment Certification, the employer must
notify OFLC in writing of the separation from employment not later than
2 work days after such separation is discovered by the employer. In
addition, the employer must notify DHS in writing (or any other method
specified by the Department or DHS in the Federal Register or the Code
of Federal Regulations) of such separation of an H-2B worker. An
abandonment or abscondment is deemed to begin after a worker fails to
report for work at the regularly scheduled time for 5 consecutive
working days without the consent of the employer. If the separation is
due to the voluntary abandonment of employment by the H-2B worker or
worker in corresponding employment, and the employer provides
appropriate notification specified under this paragraph, the employer
will not be responsible for providing or paying for the subsequent
transportation and subsistence expenses of that worker under this
section, and that worker is not entitled to the three-fourths guarantee
described in paragraph (f) of this section. The employer's obligation to
guarantee three-fourths of the work described in paragraph (f) ends with
the last full 12-week period (or 6-week period, as appropriate)
preceding the worker's voluntary abandonment or termination for cause.
(z) Compliance with applicable laws. During the period of employment
specified on the Application for Temporary
[[Page 329]]
Employment Certification, the employer must comply with all applicable
Federal, State and local employment-related laws and regulations,
including health and safety laws. In compliance with such laws,
including the William Wilberforce Trafficking Victims Protection
Reauthorization Act of 2008, 18 U.S.C. 1592(a), neither the employer nor
the employer's agents or attorneys may hold or confiscate workers'
passports, visas, or other immigration documents.
(aa) Disclosure of foreign worker recruitment. The employer, and its
attorney or agent, as applicable, must comply with Sec. 655.9 by
providing a copy of all agreements with any agent or recruiter whom it
engages or plans to engage in the international recruitment of H-2B
workers, and the identity and location of the persons or entities hired
by or working for the agent or recruiter and any of the agents or
employees of those persons and entities, to recruit foreign workers.
Pursuant to Sec. 655.15(a), the agreements and information must be
filed with the Application for Temporary Employment Certification.
[77 FR 10156, Feb. 21, 2012]
Sec. Sec. 655.21-655.29 [Reserved]
Processing of an Application for Temporary Employment Certification
Sec. 655.30 Processing of an application and job order.
(a) NPC review. The CO will review the Application for Temporary
Employment Certification and job order for compliance with all
applicable program requirements.
(b) Mailing and postmark requirements. Any notice or request sent by
the CO to an employer requiring a response will be mailed to the address
provided in the Application for Temporary Employment Certification using
methods to assure next day delivery, including electronic mail. The
employer's response to such a notice or request must be mailed using
methods to assure next day delivery, including electronic mail, and be
sent by the due date or the next business day if the due date falls on a
Saturday, Sunday or Federal holiday.
(c) Information dissemination. OFLC may forward information received
in the course of processing an Application for Temporary Employment
Certification and program integrity measures to WHD, or any other
Federal agency, as appropriate, for investigation and/or enforcement
purposes.
[77 FR 10160, Feb. 21, 2012]
Sec. 655.31 Notice of deficiency.
(a) Notification timeline. If the CO determines the Application for
Temporary Employment Certification and/or job order is incomplete,
contains errors or inaccuracies, or does not meet the requirements set
forth in this subpart, the CO will notify the employer within 7 business
days from the CO's receipt of the Application for Temporary Employment
Certification. If applicable, the Notice of Deficiency will include job
order deficiencies identified by the SWA under Sec. 655.16. The CO will
send a copy of the Notice of Deficiency to the SWA serving the area of
intended employment identified by the employer on its job order, and if
applicable, to the employer's attorney or agent.
(b) Notice content. The Notice of Deficiency will:
(1) State the reason(s) why the Application for Temporary Employment
Certification or job order fails to meet the criteria for acceptance and
state the modification needed for the CO to issue a Notice of
Acceptance;
(2) Offer the employer an opportunity to submit a modified
Application for Temporary Employment Certification or job order within
10 business days from the date of the Notice of Deficiency. The Notice
will state the modification needed for the CO to issue a Notice of
Acceptance;
(3) Offer the employer an opportunity to request administrative
review of the Notice of Deficiency before an ALJ under provisions set
forth in Sec. 655.61. The notice will inform the employer that it must
submit a written request for review to the Chief ALJ of DOL within 10
business days from the date the Notice of Deficiency is issued by
facsimile or other means normally assuring next day delivery, and that
the employer must simultaneously serve a copy on the CO. The notice will
also state that the employer may submit
[[Page 330]]
any legal arguments that the employer believes will rebut the basis of
the CO's action; and
(4) State that if the employer does not comply with the requirements
of this section by either submitting a modified application within 10
business days or requesting administrative review before an ALJ under
Sec. 655.61, the CO will deny the Application for Temporary Employment
Certification. The notice will inform the employer that the denial of
the Application for Temporary Employment Certification is final, and
cannot be appealed. The Department will not further consider that
Application for Temporary Employment Certification.
[77 FR 10160, Feb. 21, 2012]
Sec. 655.32 Submission of a modified application or job order.
(a) Review of a modified Application for Temporary Employment
Certification or job order. Upon receipt of a response to a Notice of
Deficiency, including any modifications, the CO will review the
response. The CO may issue one or more additional Notices of Deficiency
before issuing a Notice of Decision. The employer's failure to comply
with a Notice of Deficiency, including not responding in a timely manner
or not providing all required documentation, will result in a denial of
the Application for Temporary Employment Certification.
(b) Acceptance of a modified Application for Temporary Employment
Certification or job order. If the CO accepts the modification(s) to the
Application for Temporary Employment Certification and/or job order, the
CO will issue a Notice of Acceptance to the employer. The CO will send a
copy of the Notice of Acceptance to the SWA instructing it to make any
necessary modifications to the not yet posted job order and, if
applicable, to the employer's attorney or agent, and follow the
procedure set forth in Sec. 655.33.
(c) Denial of a modified Application for Temporary Employment
Certification or job order. If the CO finds the response to Notice of
Deficiency unacceptable, the CO will deny the Application for Temporary
Employment Certification in accordance with the labor certification
determination provisions in Sec. 655.51.
(d) Appeal from denial of a modified Application for Temporary
Employment Certification or job order. The procedures for appealing a
denial of a modified Application for Temporary Employment Certification
and/or job order are the same as for appealing the denial of a non-
modified Application for Temporary Employment Certification outlined in
Sec. 655.61.
(e) Post acceptance modifications. Irrespective of the decision to
accept the Application for Temporary Employment Certification, the CO
may require modifications to the job order at any time before the final
determination to grant or deny the Application for Temporary Employment
Certification if the CO determines that the offer of employment does not
contain all the minimum benefits, wages, and working condition
provisions as set forth in Sec. 655.18. The employer must make such
modification, or certification will be denied under Sec. 655.53. The
employer must provide all workers recruited in connection with the job
opportunity in the Application for Temporary Employment Certification
with a copy of the modified job order no later than the date work
commences, as approved by the CO.
[77 FR 10160, Feb. 21, 2012]
Sec. 655.33 Notice of acceptance.
(a) Notification timeline. If the CO determines the Application for
Temporary Employment Certification and job order are complete and meet
the requirements of this subpart, the CO will notify the employer in
writing within 7 business days from the date the CO received the
Application for Temporary Employment Certification and job order or
modification thereof. A copy of the Notice of Acceptance will be sent to
the SWA serving the area of intended employment identified by the
employer on its job order and, if applicable, to the employer's attorney
or agent.
(b) Notice content. The notice will:
(1) Direct the employer to engage in recruitment of U.S. workers as
provided in Sec. Sec. 655.40-655.46, including any additional
recruitment ordered by the CO under Sec. 655.46;
(2) State that such employer-conducted recruitment is in addition to
the job order being circulated by the
[[Page 331]]
SWA(s) and that the employer must conduct recruitment within 14 calendar
days from the date the Notice of Acceptance is issued, consistent with
Sec. 655.40;
(3) Direct the SWA to place the job order into intra- and interstate
clearance as set forth in Sec. 655.16 and to commence such clearance
by:
(i) Sending a copy of the job order to other States listed as
anticipated worksites in the Application for Temporary Employment
Certification and job order, if applicable; and
(ii) Sending a copy of the job order to the SWAs for all States
designated by the CO for interstate clearance;
(4) Instruct the SWA to keep the approved job order on its active
file until the end of the recruitment period as defined in Sec.
655.40(c), and to transmit the same instruction to other SWAs to which
it circulates the job order in the course of interstate clearance;
(5) Where the occupation or industry is traditionally or customarily
unionized, direct the SWA to circulate a copy of the job order to the
following labor organizations:
(i) The central office of the State Federation of Labor in the
State(s) in which work will be performed; and
(ii) The office(s) of local union(s) representing employees in the
same or substantially equivalent job classification in the area(s) in
which work will be performed;
(6) Advise the employer, as appropriate, that it must contact the
appropriate designated community-based organization(s) with notice of
the job opportunity; and
(7) Require the employer to submit a report of its recruitment
efforts as specified in Sec. 655.48.
[77 FR 10160, Feb. 21, 2012]
Sec. 655.34 Electronic job registry.
(a) Location of and placement in the electronic job registry. Upon
acceptance of the Application for Temporary Employment Certification
under Sec. 655.33, the CO will place for public examination a copy of
the job order posted by the SWA on the Department's electronic job
registry, including any amendments or required modifications approved by
the CO.
(b) Length of posting on electronic job registry. The Department
will keep the job order posted on the electronic job registry until the
end of the recruitment period, as set forth in Sec. 655.40(c).
(c) Conclusion of active posting. Once the recruitment period has
concluded the job order will be placed in inactive status on the
electronic job registry.
[77 FR 10160, Feb. 21, 2012]
Sec. 655.35 Amendments to an application or job order.
(a) Increases in number of workers. The employer may request to
increase the number of workers noted in the H-2B Registration by no more
than 20 percent (50 percent for employers requesting fewer than 10
workers). All requests for increasing the number of workers must be made
in writing and will not be effective until approved by the CO. In
considering whether to approve the request, the CO will determine
whether the proposed amendment(s) are sufficiently justified and must
take into account the effect of the changes on the underlying labor
market test for the job opportunity. Upon acceptance of an amendment,
the CO will submit to the SWA any necessary changes to the job order and
update the electronic job registry. The employer must promptly provide
copies of any approved amendments to all U.S. workers hired under the
original job order.
(b) Minor changes to the period of employment. The employer may
request minor changes to the total period of employment listed on its
Application for Temporary Employment Certification and job order, for a
period of up to 14 days, but the period of employment may not exceed a
total of 9 months, except in the event of a one-time occurrence. All
requests for minor changes to the total period of employment must be
made in writing and will not be effective until approved by the CO. In
considering whether to approve the request, the CO will determine
whether the proposed amendment(s) are sufficiently justified and must
take into account the effect of the changes on the underlying labor
market test for the job opportunity. Upon acceptance of an amendment,
the CO will submit to the SWA any necessary changes to the job
[[Page 332]]
order and update the electronic job registry. The employer must promptly
provide copies of any approved amendments to all U.S. workers hired
under the original job order.
(c) Other amendments to the Application for Temporary Employment
Certification and job order. The employer may request other amendments
to the Application for Temporary Employment Certification and job order.
All such requests must be made in writing and will not be effective
until approved by the CO. In considering whether to approve the request,
the CO will determine whether the proposed amendment(s) are sufficiently
justified and must take into account the effect of the changes on the
underlying labor market test for the job opportunity. Upon acceptance of
an amendment, the CO will submit to the SWA any necessary changes to the
job order and update the electronic job registry.
(d) Amendments after certification are not permitted. The employer
must promptly provide copies of any approved amendments to all U.S.
workers hired under the original job order.
[77 FR 10160, Feb. 21, 2012]
Sec. Sec. 655.36-655.39 [Reserved]
Post-Acceptance Requirements
Source: 77 FR 10162, Feb. 21, 2012, unless otherwise noted.
Sec. 655.40 Employer-conducted recruitment.
(a) Employer obligations. Employers must conduct recruitment of U.S.
workers to ensure that there are not qualified U.S. workers who will be
available for the positions listed in the Application for Temporary
Employment Certification. U.S. Applicants can be rejected only for
lawful job-related reasons.
(b) Employer-conducted recruitment period. Unless otherwise
instructed by the CO, the employer must conduct the recruitment
described in Sec. Sec. 655.42-655.46 within 14 calendar days from the
date the Notice of Acceptance is issued. All employer-conducted
recruitment must be completed before the employer submits the
recruitment report as required in Sec. 655.48.
(c) U.S. worker referrals. Employers must continue to accept
referrals of all U.S. applicants interested in the position until 21
days before the date of need.
(d) Interviewing U.S. workers. Employers that wish to require
interviews must conduct those interviews by phone or provide a procedure
for the interviews to be conducted in the location where the worker is
being recruited so that the worker incurs little or no cost. Employers
cannot provide potential H-2B workers with more favorable treatment with
respect to the requirement for, and conduct of, interviews.
(e) Qualified and available U.S. workers. The employer must consider
all U.S. applicants for the job opportunity. The employer must accept
and hire any applicants who are qualified and who will be available.
(f) Recruitment report. The employer must prepare a recruitment
report meeting the requirements of Sec. 655.48.
Sec. 655.41 Advertising requirements.
(a) All recruitment conducted under Sec. Sec. 655.42-655.46 must
contain terms and conditions of employment that are not less favorable
than those offered to the H-2B workers and, at a minimum, must comply
with the assurances applicable to job orders as set forth in Sec.
655.18(a).
(b) All advertising must contain the following information:
(1) The employer's name and contact information;
(2) The geographic area of intended employment with enough
specificity to apprise applicants of any travel requirements and where
applicants will likely have to reside to perform the services or labor;
(3) A description of the job opportunity for which certification is
sought with sufficient information to apprise U.S. workers of the
services or labor to be performed, including the duties, the minimum
education and experience requirements, the work hours and days, and the
anticipated start and end dates of the job opportunity;
(4) A statement that the job opportunity is a temporary, full-time
position including the total number of job openings the employer intends
to fill;
[[Page 333]]
(5) If applicable, a statement that overtime will be available to
the worker and the wage offer(s) for working any overtime hours;
(6) If applicable, a statement indicating that on-the-job training
will be provided to the worker;
(7) The wage that the employer is offering, intends to offer or will
provide to the H-2B workers, or in the event that there are multiple
wage offers (such as where an itinerary is authorized through special
procedures for an employer), the range of applicable wage offers, each
of which must equal or exceed the highest of the prevailing wage or the
Federal, State, or local minimum wage;
(8) If applicable, any board, lodging, or other facilities the
employer will offer to workers or intends to assist workers in securing;
(9) All deductions not required by law that the employer will make
from the worker's paycheck, including, if applicable, reasonable
deduction for board, lodging, and other facilities offered to the
workers;
(10) A statement that transportation and subsistence from the place
where the worker has come to work for the employer to the place of
employment and return transportation and subsistence will be provided,
as required by Sec. 655.20(j)(1);
(11) If applicable, a statement that work tools, supplies, and
equipment will be provided to the worker without charge;
(12) If applicable, a statement that daily transportation to and
from the worksite will be provided by the employer;
(13) A statement summarizing the three-fourths guarantee as required
by Sec. 655.20(f); and
(14) A statement directing applicants to apply for the job
opportunity at the nearest office of the SWA in the State in which the
advertisement appeared, the SWA contact information, and, if applicable,
the job order number.
Sec. 655.42 Newspaper advertisements.
(a) The employer must place an advertisement (which may be in a
language other than English, where the CO determines appropriate) on 2
separate days, which may be consecutive, one of which must be a Sunday
(except as provided in paragraph (b) of this section), in a newspaper of
general circulation serving the area of intended employment and
appropriate to the occupation and the workers likely to apply for the
job opportunity.
(b) If the job opportunity is located in a rural area that does not
have a newspaper with a Sunday edition, the CO may direct the employer,
in place of a Sunday edition, to advertise in the regularly published
daily edition with the widest circulation in the area of intended
employment.
(c) The newspaper advertisements must satisfy the requirements in
Sec. 655.41.
(d) The employer must maintain copies of newspaper pages (with date
of publication and full copy of the advertisement), or tear sheets of
the pages of the publication in which the advertisements appeared, or
other proof of publication furnished by the newspaper containing the
text of the printed advertisements and the dates of publication,
consistent with the document retention requirements in Sec. 655.56. If
the advertisement was required to be placed in a language other than
English, the employer must maintain a translation and retain it in
accordance with Sec. 655.56.
Sec. 655.43 Contact with former U.S. employees.
The employer must contact (by mail or other effective means) its
former U.S. workers, including those who have been laid off within 120
calendar days before the date of need (except those who were dismissed
for cause or who abandoned the worksite), employed by the employer in
the occupation at the place of employment during the previous year,
disclose the terms of the job order, and solicit their return to the
job. The employer must maintain documentation sufficient to prove such
contact in accordance with Sec. 655.56.
[[Page 334]]
Sec. 655.44 [Reserved]
Sec. 655.45 Contact with bargaining representative, posting and other
contact requirements.
(a) If there is a bargaining representative for any of the
employer's employees in the occupation and area of intended employment,
the employer must provide written notice of the job opportunity, by
providing a copy of the Application for Temporary Employment
Certification and the job order, and maintain documentation that it was
sent to the bargaining representative(s). An employer governed by this
paragraph must include information in its recruitment report that
confirms that the bargaining representative(s) was contacted and
notified of the position openings and whether the organization referred
qualified U.S. worker(s), including the number of referrals, or was non-
responsive to the employer's requests.
(b) If there is no bargaining representative, the employer must post
the availability of the job opportunity in at least 2 conspicuous
locations at the place(s) of anticipated employment or in some other
manner that provides reasonable notification to all employees in the job
classification and area in which the work will be performed by the H-2B
workers. Electronic posting, such as displaying the notice prominently
on any internal or external Web site that is maintained by the employer
and customarily used for notices to employees about terms and conditions
of employment, is sufficient to meet this posting requirement as long as
it otherwise meets the requirements of this section. The notice must
meet the requirements under Sec. 655.41 and be posted for at least 15
consecutive business days. The employer must maintain a copy of the
posted notice and identify where and when it was posted in accordance
with Sec. 655.56.
(c) If appropriate to the occupation and area of intended
employment, as indicated by the CO in the Notice of Acceptance, the
employer must provide written notice of the job opportunity to a
community-based organization, and maintain documentation that it was
sent to any designated community-based organization. An employer
governed by this paragraph must include information in its recruitment
report that confirms that the community-based organization was contacted
and notified of the position openings and whether the organization
referred qualified U.S. worker(s), including the number of referrals, or
was non-responsive to the employer's requests.
Sec. 655.46 Additional employer-conducted recruitment.
(a) Requirement to conduct additional recruitment. The employer may
be instructed by the CO to conduct additional recruitment. Such
recruitment may be required at the discretion of the CO where the CO has
determined that there may be U.S. workers who are qualified and who will
be available for the work, including but not limited to where the job
opportunity is located in an Area of Substantial Unemployment.
(b) Nature of the additional employer-conducted recruitment. The CO
will describe the precise number and nature of the additional
recruitment efforts. Additional recruitment may include, but is not
limited to, posting on the employer's Web site or another Web site,
contact with additional community-based organizations, additional
contact with State One-Stop Career Centers, and other print advertising,
such as using a professional, trade or ethnic publication where such a
publication is appropriate for the occupation and the workers likely to
apply for the job opportunity.
(c) Proof of the additional employer-conducted recruitment. The CO
will specify the documentation or other supporting evidence that must be
maintained by the employer as proof that the additional recruitment
requirements were met. Documentation must be maintained as required in
Sec. 655.56.
Sec. 655.47 Referrals of U.S. workers.
SWAs may only refer for employment individuals who have been
apprised of all the material terms and conditions of employment and who
are qualified and will be available for employment.
[[Page 335]]
Sec. 655.48 Recruitment report.
(a) Requirements of the recruitment report. The employer must
prepare, sign, and date a recruitment report. The recruitment report
must be submitted by a date specified by the CO in the Notice of
Acceptance and contain the following information:
(1) The name of each recruitment activity or source (e.g., job order
and the name of the newspaper);
(2) The name and contact information of each U.S. worker who applied
or was referred to the job opportunity up to the date of the preparation
of the recruitment report, and the disposition of each worker's
application. The employer must clearly indicate whether the job
opportunity was offered to the U.S. worker and whether the U.S. worker
accepted or declined;
(3) Confirmation that former U.S. employees were contacted, if
applicable, and by what means;
(4) Confirmation that the bargaining representative was contacted,
if applicable, and by what means, or that the employer posted the
availability of the job opportunity to all employees in the job
classification and area in which the work will be performed by the H-2B
workers;
(5) Confirmation that the community-based organization designated by
the CO was contacted, if applicable;
(6) If applicable, confirmation that additional recruitment was
conducted as directed by the CO; and
(7) If applicable, for each U.S. worker who applied for the position
but was not hired, the lawful job-related reason(s) for not hiring the
U.S. worker.
(b) Duty to update recruitment report. The employer must continue to
update the recruitment report throughout the recruitment period. The
updated report need not be submitted to the Department, but must be made
available in the event of a post-certification audit or upon request by
DOL.
Sec. 655.49 [Reserved]
Labor Certification Determinations
Sec. 655.50 Determinations.
(a) Certifying Officers (COs). The Administrator, OFLC is the
Department's National CO. The Administrator, OFLC and the CO(s), by
virtue of delegation from the Administrator, OFLC, have the authority to
certify or deny Applications for Temporary Employment Certification
under the H-2B nonimmigrant classification. If the Administrator, OFLC
directs that certain types of temporary labor certification applications
or a specific Application for Temporary Employment Certification under
the H-2B nonimmigrant classification be handled by the OFLC's National
Office, the Director of the NPC will refer such applications to the
Administrator, OFLC.
(b) Determination. Except as otherwise provided in this paragraph,
the CO will make a determination either to certify or deny the
Application for Temporary Employment Certification. The CO will certify
the application only if the employer has met all the requirements of
this subpart, including the criteria for certification in Sec. 655.51,
thus demonstrating that there is an insufficient number of U.S. workers
who are qualified and who will be available for the job opportunity for
which certification is sought and that the employment of the H-2B
workers will not adversely affect the benefits, wages, and working
conditions of similarly employed U.S. workers.
[77 FR 10163, Feb. 21, 2012]
Sec. 655.51 Criteria for certification.
(a) The criteria for certification include whether the employer has
a valid H-2B Registration to participate in the H-2B program and has
complied with all of the requirements necessary to grant the labor
certification.
(b) In making a determination whether there are insufficient U.S.
workers to fill the employer's job opportunity, the CO will count as
available any U.S. worker referred by the SWA or any U.S. worker who
applied (or on whose behalf an application is made) directly to the
employer, but who was rejected by the employer for other than a lawful
job-related reason.
(c) A certification will not be granted to an employer that has
failed to comply with one or more sanctions or remedies imposed by final
agency actions under the H-2B program.
[77 FR 10164, Feb. 21, 2012]
[[Page 336]]
Sec. 655.52 Approved certification.
If a temporary labor certification is granted, the CO will send the
approved Application for Temporary Employment Certification and a Final
Determination letter to the employer by means normally assuring next day
delivery, including electronic mail, and a copy, if applicable, to the
employer's attorney or agent. If and when the Application for Temporary
Employment Certification will be permitted to be electronically filed,
the employer must sign the certified Application for Temporary
Employment Certification as directed by the CO. The employer must retain
a signed copy of the Application for Temporary Employment Certification,
as required by Sec. 655.56.
[77 FR 10164, Feb. 21, 2012]
Sec. 655.53 Denied certification.
If a temporary labor certification is denied, the CO will send the
Final Determination letter to the employer by means normally assuring
next day delivery, including electronic mail, and a copy, if applicable,
to the employer's attorney or agent. The Final Determination letter
will:
(a) State the reason(s) certification is denied, citing the relevant
regulatory standards and/or special procedures;
(b) Offer the employer an opportunity to request administrative
review of the denial under Sec. 655.61; and
(c) State that if the employer does not request administrative
review in accordance with Sec. 655.61, the denial is final and the
Department will not accept any appeal on that Application for Temporary
Employment Certification.
[77 FR 10164, Feb. 21, 2012]
Sec. 655.54 Partial certification.
The CO may issue a partial certification, reducing either the period
of need or the number of H-2B workers or both for certification, based
upon information the CO receives during the course of processing the
Application for Temporary Employment Certification. The number of
workers certified will be reduced by one for each referred U.S. worker
who is qualified and who will be available at the time and place needed
to perform the services or labor and who has not been rejected for
lawful job-related reasons. If a partial labor certification is issued,
the CO will amend the Application for Temporary Employment Certification
and then return it to the employer with a Final Determination letter,
with a copy to the employer's attorney or agent, if applicable. The
Final Determination letter will:
(a) State the reason(s) why either the period of need and/or the
number of H-2B workers requested has been reduced, citing the relevant
regulatory standards and/or special procedures;
(b) If applicable, address the availability of U.S. workers in the
occupation;
(c) Offer the employer an opportunity to request administrative
review of the partial certification under Sec. 655.61; and
(d) State that if the employer does not request administrative
review in accordance with Sec. 655.61, the partial certification is
final and the Department will not accept any appeal on that Application
for Temporary Employment Certification.
[77 FR 10164, Feb. 21, 2012]
Sec. 655.55 Validity of temporary labor certification.
(a) Validity period. A temporary labor certification is valid only
for the period as approved on the Application for Temporary Employment
Certification. The certification expires on the last day of authorized
employment.
(b) Scope of validity. A temporary labor certification is valid only
for the number of H-2B positions, the area of intended employment, the
job classification and specific services or labor to be performed, and
the employer specified on the approved Application for Temporary
Employment Certification, including any approved modifications. The
temporary labor certification may not be transferred from one employer
to another unless the employer to which it is transferred is a successor
in interest to the employer to which it was issued.
[77 FR 10164, Feb. 21, 2012]
[[Page 337]]
Sec. 655.56 Document retention requirements of H-2B employers.
(a) Entities required to retain documents. All employers filing an
Application for Temporary Employment Certification requesting H-2B
workers are required to retain the documents and records proving
compliance with 29 CFR part 503 and this subpart, including but not
limited to those specified in paragraph (c) of this section.
(b) Period of required retention. The employer must retain records
and documents for 3 years from the date of certification of the
Application for Temporary Employment Certification, or from the date of
adjudication if the Application for Temporary Employment Certification
is denied, or 3 years from the day the Department receives the letter of
withdrawal provided in accordance with Sec. 655.62. For the purposes of
this section, records and documents required to be retained in
connection with an H-2B Registration must be retained in connection with
all of the Applications for Temporary Employment Certification that are
supported by it.
(c) Documents and records to be retained by all employer applicants.
All employers filing an H-2B Registration and an Application for
Temporary Employment Certification must retain the following documents
and records and must provide the documents and records to the Department
and other Federal agencies in the event of an audit or investigation:
(1) Documents and records not previously submitted during the
registration process that substantiate temporary need;
(2) Proof of recruitment efforts, as applicable, including:
(i) Job order placement as specified in Sec. 655.16;
(ii) Advertising as specified in Sec. Sec. 655.41 and 655.42;
(iii) Contact with former U.S. workers as specified in Sec. 655.43;
(iv) Contact with bargaining representative(s), or a copy of the
posting of the job opportunity, if applicable, as specified in Sec.
655.45(a) or (b); and
(v) Additional employer-conducted recruitment efforts as specified
in Sec. 655.46;
(3) Substantiation of the information submitted in the recruitment
report prepared in accordance with Sec. 655.48, such as evidence of
nonapplicability of contact with former workers as specified in Sec.
655.43;
(4) The final recruitment report and any supporting resumes and
contact information as specified in Sec. 655.48;
(5) Records of each worker's earnings, hours offered and worked,
location(s) of work performed, and other information as specified in
Sec. 655.20(i);
(6) If appropriate, records of reimbursement of transportation and
subsistence costs incurred by the workers, as specified in Sec.
655.20(j).
(7) Evidence of contact with U.S. workers who applied for the job
opportunity in the Application for Temporary Employment Certification,
including documents demonstrating that any rejections of U.S. workers
were for lawful, job-related reasons, as specified in Sec. 655.20(r);
(8) Evidence of contact with any former U.S. worker in the
occupation at the place of employment in the Application for Temporary
Employment Certification, including documents demonstrating that the
U.S. worker had been offered the job opportunity in the Application for
Temporary Employment Certification, as specified in Sec. 655.20(w), and
that the U.S. worker either refused the job opportunity or was rejected
only for lawful, job-related reasons, as specified in Sec. 655.20(r);
(9) The written contracts with agents or recruiters as specified in
Sec. Sec. 655.8 and 655.9, and the list of the identities and locations
of persons hired by or working for the agent or recruiter and these
entities' agents or employees, as specified in Sec. 655.9;
(10) Written notice provided to and informing OFLC that an H-2B
worker or worker in corresponding employment has separated from
employment before the end date of employment specified in the
Application for Temporary Employment Certification, as specified in
Sec. 655.20(y);
(11) The H-2B Registration, job order and a copy of the Application
for Temporary Employment Certification. If and
[[Page 338]]
when the Application for Temporary Employment Certification and H-2B
Registration is permitted to be electronically filed, a printed copy of
each adjudicated Application for Temporary Employment Certification,
including any modifications, amendments or extensions will be signed by
the employer as directed by the CO and retained;
(12) The H-2B Petition, including all accompanying documents; and
(13) Any collective bargaining agreement(s), individual employment
contract(s), or payroll records from the previous year necessary to
substantiate any claim that certain incumbent workers are not included
in corresponding employment, as specified in Sec. 655.5.
(d) Availability of documents for enforcement purposes. An employer
must make available to the Administrator, WHD within 72 hours following
a request by the WHD the documents and records required under 29 CFR
part 503 and this section so that the Administrator, WHD may copy,
transcribe, or inspect them.
[77 FR 10164, Feb. 21, 2012]
Sec. 655.57 Request for determination based on nonavailability of U.S.
workers.
(a) Standards for requests. If a temporary labor certification has
been partially granted or denied, based on the CO's determination that
qualified U.S. workers are available, and, on or after 21 calendar days
before the date of need, some or all of those qualified U.S. workers
are, in fact no longer available, the employer may request a new
temporary labor certification determination from the CO. Prior to making
a new determination the CO will promptly ascertain (which may be through
the SWA or other sources of information on U.S. worker availability)
whether specific qualified replacement U.S. workers are available or can
be reasonably expected to be present at the employer's establishment
with 72 hours from the date the employer's request was received. The CO
will expeditiously, but in no case later than 72 hours after the time a
complete request (including the signed statement included in paragraph
(b) of this section) is received, make a determination on the request.
An employer may appeal a denial of such a determination in accordance
with procedures contained in Sec. 655.61.
(b) Unavailability of U.S. workers. The employer's request for a new
determination must be made directly to the CO by electronic mail or
other appropriate means and must be accompanied by a signed statement
confirming the employer's assertion. In addition, unless the employer
has provided to the CO notification of abandonment or termination of
employment as required by Sec. 655.20(y), the employer's signed
statement must include the name and contact information of each U.S.
worker who became unavailable and must supply the reason why the worker
has become unavailable.
(c) Notification of determination. If the CO determines that U.S.
workers have become unavailable and cannot identify sufficient available
U.S. workers who are qualified or who are likely to become available,
the CO will grant the employer's request for a new determination.
However, this does not preclude an employer from submitting subsequent
requests for new determinations, if warranted, based on subsequent facts
concerning purported nonavailability of U.S. workers or referred workers
not being qualified because of lawful job-related reasons.
[77 FR 10164, Feb. 21, 2012]
Sec. Sec. 655.58-655.59 [Reserved]
Post Certification Activities
Sec. 655.60 Extensions.
An employer may apply for extensions of the period of employment in
the following circumstances. A request for extension must be related to
weather conditions or other factors beyond the control of the employer
(which may include unforeseeable changes in market conditions), and must
be supported in writing, with documentation showing why the extension is
needed and that the need could not have been reasonably foreseen by the
employer. The CO will notify the employer of the decision in writing.
The CO will not grant an extension where the total work period under
that Application for Temporary Employment Certification and
[[Page 339]]
the authorized extension would exceed 9 months for employers whose
temporary need is seasonal, peakload, or intermittent, or 3 years for
employers that have a one-time occurrence of temporary need, except in
extraordinary circumstances. The employer may appeal a denial of a
request for an extension by following the procedures in Sec. 655.61.
The H-2B employer's assurances and obligations under the temporary labor
certification will continue to apply during the extended period of
employment. The employer must immediately provide to its workers a copy
of any approved extension.
[77 FR 10165, Feb. 21, 2012]
Sec. 655.61 Administrative review.
(a) Request for review. Where authorized in this subpart, employers
may request an administrative review before the BALCA of a determination
by the CO. In such cases, the request for review:
(1) Must be sent to the BALCA, with a copy simultaneously sent to
the CO who denied the application, within 10 business days from the date
of determination;
(2) Must clearly identify the particular determination for which
review is sought;
(3) Must set forth the particular grounds for the request;
(4) Must include a copy of the CO's determination; and
(5) May contain only legal argument and such evidence as was
actually submitted to the CO before the date the CO's determination was
issued.
(b) Appeal file. Upon the receipt of a request for review, the CO
will, within 7 business days, assemble and submit the Appeal File using
means to ensure same day or next day delivery, to the BALCA, the
employer, and the Associate Solicitor for Employment and Training Legal
Services, Office of the Solicitor, U.S. Department of Labor.
(c) Briefing schedule. Within 7 business days of receipt of the
Appeal File, the counsel for the CO may submit, using means to ensure
same day or next day delivery, a brief in support of the CO's decision.
(d) Assignment. The Chief ALJ may designate a single member or a
three member panel of the BALCA to consider a particular case.
(e) Review. The BALCA must review the CO's determination only on the
basis of the Appeal File, the request for review, and any legal briefs
submitted and must:
(1) Affirm the CO's determination; or
(2) Reverse or modify the CO's determination; or
(3) Remand to the CO for further action.
(f) Decision. The BALCA should notify the employer, the CO, and
counsel for the CO of its decision within 7 business days of the
submission of the CO's brief or 10 business days after receipt of the
Appeal File, whichever is later, using means to ensure same day or next
day delivery.
[77 FR 10166, Feb. 21, 2012]
Sec. 655.62 Withdrawal of an Application for Temporary Employment
Certification.
Employers may withdraw an Application for Temporary Employment
Certification after it has been accepted and before it is adjudicated.
The employer must request such withdrawal in writing.
[77 FR 10166, Feb. 21, 2012]
Sec. 655.63 Public disclosure.
The Department will maintain an electronic file accessible to the
public with information on all employers applying for temporary
nonagricultural labor certifications. The database will include such
information as the number of workers requested, the date filed, the date
decided, and the final disposition.
[77 FR 10166, Feb. 21, 2012]
Sec. Sec. 655.66-655.69 [Reserved]
Integrity measures
Sec. 655.70 Audits.
The CO may conduct audits of adjudicated temporary labor
certification applications.
(a) Discretion. The CO has the sole discretion to choose the
applications selected for audit.
(b) Audit letter. Where an application is selected for audit, the CO
will send
[[Page 340]]
an audit letter to the employer and a copy, if appropriate, to the
employer's attorney or agent. The audit letter will:
(1) Specify the documentation that must be submitted by the
employer;
(2) Specify a date, no more than 30 calendar days from the date the
audit letter is issued, by which the required documentation must be sent
to the CO; and
(3) Advise that failure to fully comply with the audit process may
result:
(i) In the requirement that the employer undergo the assisted
recruitment procedures in Sec. 655.71 in future filings of H-2B
temporary labor certification applications for a period of up to 2
years, or
(ii) In a revocation of the certification and/or debarment from the
H-2B program and any other foreign labor certification program
administered by the Department.
(c) Supplemental information request. During the course of the audit
examination, the CO may request supplemental information and/or
documentation from the employer in order to complete the audit. If
circumstances warrant, the CO can issue one or more requests for
supplemental information.
(d) Potential referrals. In addition to measures in this subpart,
the CO may decide to provide the audit findings and underlying
documentation to DHS, WHD, or other appropriate enforcement agencies.
The CO may refer any findings that an employer discouraged a qualified
U.S. worker from applying, or failed to hire, discharged, or otherwise
discriminated against a qualified U.S. worker, to the Department of
Justice, Civil Rights Division, Office of Special Counsel for Unfair
Immigration Related Employment Practices.
[77 FR 10166, Feb. 21, 2012]
Sec. 655.71 CO-ordered assisted recruitment.
(a) Requirement of assisted recruitment. If, as a result of audit or
otherwise, the CO determines that a violation has occurred that does not
warrant debarment, the CO may require the employer to engage in assisted
recruitment for a defined period of time for any future Application for
Temporary Employment Certification.
(b) Notification of assisted recruitment. The CO will notify the
employer (and its attorney or agent, if applicable) in writing of the
assisted recruitment that will be required of the employer for a period
of up to 2 years from the date the notice is issued. The notification
will state the reasons for the imposition of the additional
requirements, state that the employer's agreement to accept the
conditions will constitute their inclusion as bona fide conditions and
terms of a temporary labor certification, and offer the employer an
opportunity to request an administrative review. If administrative
review is requested, the procedures in Sec. 655.61 apply.
(c) Assisted recruitment. The assisted recruitment process will be
in addition to any recruitment required of the employer by Sec. Sec.
655.41 through 655.47 and may consist of, but is not limited to, one or
more of the following:
(1) Requiring the employer to submit a draft advertisement to the CO
for review and approval at the time of filing the Application for
Temporary Employment Certification;
(2) Designating the sources where the employer must recruit for U.S.
workers, including newspapers and other publications, and directing the
employer to place the advertisement(s) in such sources;
(3) Extending the length of the placement of the advertisement and/
or job order;
(4) Requiring the employer to notify the CO and the SWA in writing
when the advertisement(s) are placed;
(5) Requiring an employer to perform any additional assisted
recruitment directed by the CO;
(6) Requiring the employer to provide proof of the publication of
all advertisements as directed by the CO, in addition to providing a
copy of the job order;
(7) Requiring the employer to provide proof of all SWA referrals
made in response to the job order;
(8) Requiring the employer to submit any proof of contact with all
referrals and past U.S. workers; and/or
(9) Requiring the employer to provide any additional documentation
verifying it conducted the assisted recruitment as directed by the CO.
[[Page 341]]
(d) Failure to comply. If an employer materially fails to comply
with requirements ordered by the CO under this section, the
certification will be denied and the employer and/or its attorney or
agent may be debarred under Sec. 655.73.
[77 FR 10166, Feb. 21, 2012]
Sec. 655.72 Revocation.
(a) Basis for DOL revocation. The Administrator, OFLC may revoke a
temporary labor certification approved under this subpart, if the
Administrator, OFLC finds:
(1) The issuance of the temporary labor certification was not
justified due to fraud or willful misrepresentation of a material fact
in the application process, as defined in Sec. 655.73(d);
(2) The employer substantially failed to comply with any of the
terms or conditions of the approved temporary labor certification. A
substantial failure is a willful failure to comply that constitutes a
significant deviation from the terms and conditions of the approved
certification and is further defined in Sec. 655.73(d) and (e);
(3) The employer failed to cooperate with a DOL investigation or
with a DOL official performing an investigation, inspection, audit
(under Sec. 655.73), or law enforcement function under 29 CFR part 503
or this subpart; or
(4) The employer failed to comply with one or more sanctions or
remedies imposed by WHD, or with one or more decisions or orders of the
Secretary with the respect to the H-2B program.
(b) DOL procedures for revocation. (1) Notice of Revocation. If the
Administrator, OFLC makes a determination to revoke an employer's
temporary labor certification, the Administrator, OFLC will send to the
employer (and its attorney or agent, if applicable) a Notice of
Revocation. The notice will contain a detailed statement of the grounds
for the revocation and inform the employer of its right to submit
rebuttal evidence or to appeal. If the employer does not file rebuttal
evidence or an appeal within 10 business days from the date the Notice
of Revocation is issued, the notice is the final agency action and will
take effect immediately at the end of the 10-day period.
(2) Rebuttal. If the employer timely submits rebuttal evidence, the
Administrator, OFLC will inform the employer of the final determination
on the revocation within 10 business days of receiving the rebuttal
evidence. If the Administrator, OFLC determines that the certification
should be revoked, the Administrator, OFLC will inform the employer of
its right to appeal according to the procedures of Sec. 655.61. If the
employer does not appeal the final determination, it will become the
final agency action.
(3) Appeal. An employer may appeal a Notice of Revocation, or a
final determination of the Administrator, OFLC after the review of
rebuttal evidence, according to the appeal procedures of Sec. 655.61.
The ALJ's decision is the final agency action.
(4) Stay. The timely filing of rebuttal evidence or an
administrative appeal will stay the revocation pending the outcome of
those proceedings.
(5) Decision. If the temporary labor certification is revoked, the
Administrator, OFLC will send a copy of the final agency action to DHS
and the Department of State.
(c) Employer's obligations in the event of revocation. If an
employer's temporary labor certification is revoked, the employer is
responsible for:
(1) Reimbursement of actual inbound transportation and other
expenses;
(2) The workers' outbound transportation expenses;
(3) Payment to the workers of the amount due under the three-fourths
guarantee; and
(4) Any other wages, benefits, and working conditions due or owing
to the workers under this subpart.
[77 FR 10166, Feb. 21, 2012]
Sec. 655.73 Debarment.
(a) Debarment of an employer. The Administrator, OFLC may not issue
future labor certifications under this subpart to an employer or any
successor in interest to that employer, subject to the time limits set
forth in paragraph (c) of this section, if the Administrator, OFLC finds
that the employer committed the following violations:
[[Page 342]]
(1) Willful misrepresentation of a material fact in its H-2B
Registration, Application for Temporary Employment Certification, or H-
2B Petition;
(2) Substantial failure to meet any of the terms and conditions of
its H-2B Registration, Application for Temporary Employment
Certification, or H-2B Petition. A substantial failure is a willful
failure to comply that constitutes a significant deviation from the
terms and conditions of such documents; or
(3) Willful misrepresentation of a material fact to the DOS during
the visa application process.
(b) Debarment of an agent or attorney. If the Administrator, OFLC
finds, under this section, that an attorney or agent committed a
violation as described in paragraphs (a)(1) through (3) of this section
or participated in an employer's violation, the Administrator, OFLC may
not issue future labor certifications to an employer represented by such
agent or attorney, subject to the time limits set forth in paragraph (c)
of this section.
(c) Period of debarment. Debarment under this subpart may not be for
less than 1 year or more than 5 years from the date of the final agency
decision.
(d) Determining whether a violation is willful. A willful
misrepresentation of a material fact or a willful failure to meet the
required terms and conditions occurs when the employer, attorney, or
agent knows a statement is false or that the conduct is in violation, or
shows reckless disregard for the truthfulness of its representation or
for whether its conduct satisfies the required conditions.
(e) Determining whether a violation is significant. In determining
whether a violation is a significant deviation from the terms and
conditions of the H-2B Registration, Application for Temporary
Employment Certification, or H-2B Petition, the factors that the
Administrator, OFLC may consider include, but are not limited to, the
following:
(1) Previous history of violation(s) under the H-2B program;
(2) The number of H-2B workers, workers in corresponding employment,
or improperly rejected U.S. applicants who were and/or are affected by
the violation(s);
(3) The gravity of the violation(s);
(4) The extent to which the violator achieved a financial gain due
to the violation(s), or the potential financial loss or potential injury
to the worker(s); and
(5) Whether U.S. workers have been harmed by the violation.
(f) Violations. Where the standards set forth in paragraphs (d) and
(e) in this section are met, debarrable violations would include but
would not be limited to one or more acts of commission or omission which
involve:
(1) Failure to pay or provide the required wages, benefits or
working conditions to the employer's H-2B workers and/or workers in
corresponding employment;
(2) Failure, except for lawful, job-related reasons, to offer
employment to qualified U.S. workers who applied for the job opportunity
for which certification was sought;
(3) Failure to comply with the employer's obligations to recruit
U.S. workers;
(4) Improper layoff or displacement of U.S. workers or workers in
corresponding employment;
(5) Failure to comply with one or more sanctions or remedies imposed
by the Administrator, WHD for violation(s) of obligations under the job
order or other H-2B obligations, or with one or more decisions or orders
of the Secretary or a court under this subpart or 29 CFR part 503;
(6) Failure to comply with the Notice of Deficiency process under
this subpart;
(7) Failure to comply with the assisted recruitment process under
this subpart;
(8) Impeding an investigation of an employer under 29 CFR part 503
or an audit under this subpart;
(9) Employing an H-2B worker outside the area of intended
employment, in an activity/activities not listed in the job order, or
outside the validity period of employment of the job order, including
any approved extension thereof;
(10) A violation of the requirements of Sec. 655.20(o) or (p);
(11) A violation of any of the provisions listed in Sec. 655.20(r);
(12) Any other act showing such flagrant disregard for the law that
future
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compliance with program requirements cannot reasonably be expected;
(13) Fraud involving the H-2B Registration, Application for
Temporary Employment Certification or the H-2B Petition; or
(14) A material misrepresentation of fact during the registration or
application process.
(g) Debarment procedure. (1) Notice of Debarment. If the
Administrator, OFLC makes a determination to debar an employer,
attorney, or agent, the Administrator, OFLC will send the party a Notice
of Debarment. The Notice will state the reason for the debarment
finding, including a detailed explanation of the grounds for and the
duration of the debarment and inform the party subject to the notice of
its right to submit rebuttal evidence or to request a debarment hearing.
If the party does not file rebuttal evidence or request a hearing within
30 calendar days of the date of the Notice of Debarment, the notice is
the final agency action and the debarment will take effect at the end of
the 30-day period. The timely filing of an rebuttal evidence or a
request for a hearing stays the debarment pending the outcome of the
appeal as provided in paragraphs (g)(2)-(6) of this section.
(2) Rebuttal. The party who received the Notice of Debarment may
choose to submit evidence to rebut the grounds stated in the notice
within 30 calendar days of the date the notice is issued. If rebuttal
evidence is timely filed, the Administrator, OFLC will issue a final
determination on the debarment within 30 calendar days of receiving the
rebuttal evidence. If the Administrator, OFLC determines that the party
should be debarred, the Administrator, OFLC will inform the party of its
right to request a debarment hearing according to the procedures in this
section. The party must request a hearing within 30 calendar days after
the date of the Administrator, OFLC's final determination, or the
Administrator OFLC's determination will be the final agency order and
the debarment will take effect at the end of the 30-day period.
(3) Hearing. The recipient of a Notice of Debarment seeking to
challenge the debarment must request a debarment hearing within 30
calendar days of the date of a Notice of Debarment or the date of a
final determination of the Administrator, OFLC after review of rebuttal
evidence submitted under paragraph (g)(2) of this section. To obtain a
debarment hearing, the recipient must, within 30 days of the date of the
Notice or the final determination, file a written request with the Chief
ALJ, United States Department of Labor, 800 K Street, NW., Suite 400-N,
Washington, DC 20001-8002, and simultaneously serve a copy on the
Administrator, OFLC. The debarment will take effect 30 calendar days
from the date the Notice of Debarment or final determination is issued,
unless a request for review is timely filed. Within 10 business days of
receipt of the request for a hearing, the Administrator, OFLC will send
a certified copy of the ETA case file to the Chief ALJ by means normally
assuring next day delivery. The Chief ALJ will immediately assign an ALJ
to conduct the hearing. The procedures in 29 CFR part 18 apply to such
hearings, except that the request for a hearing will not be considered
to be a complaint to which an answer is required.
(4) Decision. After the hearing, the ALJ must affirm, reverse, or
modify the Administrator, OFLC's determination. The ALJ will prepare the
decision within 60 calendar days after completion of the hearing and
closing of the record. The ALJ's decision will be provided to the
parties to the debarment hearing by means normally assuring next day
delivery. The ALJ's decision is the final agency action, unless either
party, within 30 calendar days of the ALJ's decision, seeks review of
the decision with the Administrative Review Board (ARB).
(5) Review by the ARB. (i) Any party wishing review of the decision
of an ALJ must, within 30 calendar days of the decision of the ALJ,
petition the ARB to review the decision. Copies of the petition must be
served on all parties and on the ALJ. The ARB will decide whether to
accept the petition within 30 calendar days of receipt. If the ARB
declines to accept the petition, or if the ARB does not issue a notice
accepting a petition within 30 calendar days after the receipt of a
timely filing of the petition, the decision of
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the ALJ is the final agency action. If a petition for review is
accepted, the decision of the ALJ will be stayed unless and until the
ARB issues an order affirming the decision. The ARB must serve notice of
its decision to accept or not to accept the petition upon the ALJ and
upon all parties to the proceeding.
(ii) Upon receipt of the ARB's notice to accept the petition, the
Office of Administrative Law Judges will promptly forward a copy of the
complete hearing record to the ARB.
(iii) Where the ARB has determined to review the decision and order,
the ARB will notify each party of the issue(s) raised, the form in which
submissions must be made (e.g., briefs or oral argument), and the time
within which the presentation must be submitted.
(6) ARB Decision. The ARB's final decision must be issued within 90
calendar days from the notice granting the petition and served upon all
parties and the ALJ.
(h) Concurrent debarment jurisdiction. OFLC and the WHD have
concurrent jurisdiction to debar under this section or under 29 CFR
503.24. When considering debarment, OFLC and the WHD will coordinate
their activities. A specific violation for which debarment is imposed
will be cited in a single debarment proceeding. Copies of final
debarment decisions will be forwarded to DHS and DOS promptly.
(i) Debarment from other foreign labor programs. Upon debarment
under this subpart or 29 CFR 503.24, the debarred party will be
disqualified from filing any labor certification applications or labor
condition applications with the Department by, or on behalf of, the
debarred party for the same period of time set forth in the final
debarment decision.
[77 FR 10166, Feb. 21, 2012]
Sec. Sec. 655.74-655.76 [Reserved]
Sec. 655.80 [Reserved]
Sec. 655.81 Application filing transition.
(a) Compliance with these regulations. Except as provided in
paragraphs (b) and (c) of this section, employers filing applications
for H-2B workers on or after the effective date of these regulations
where the date of need for the services or labor to be performed is on
or after October 1, 2009, must comply with all of the obligations and
assurances in this subpart. SWAs will no longer accept for processing
applications filed by employers for H-2B workers for temporary or
seasonal nonagricultural services on or after January 18, 2009.
(b) Applications filed under former regulations. (1) For
applications filed with the SWAs serving the area of intended employment
prior to the effective date of these regulations, the SWAs shall
continue to process all active applications under the former regulations
and transmit all completed applications to the appropriate NPC for
review and issuance of a labor certification determination.
(2) For applications filed with the SWAs serving the area of
intended employment prior to the effective date of these regulations
that were completed and transmitted to the NPC, the NPC shall continue
to process all active applications under the former regulations and
issue a labor certification determination.
(c) Applications filed with the NPC under these regulations.
Employers filing applications on or after the effective date of these
regulations where their date of need for H-2B workers is prior to
October 1, 2009, must receive a prevailing wage determination from the
SWA serving the area of intended employment. The SWA shall process such
requests in accordance with the provisions of Sec. 655.10. Once the
employer receives its prevailing wage determination from the SWA, it
must conduct all of the pre-filing recruitment steps set forth under
this subpart prior to filing an Application for Temporary Employment
Certification with the NPC.
[73 FR 78052, Dec. 19, 2008. Redesignated at 74 FR 25985, May 29, 2009]
Effective Date Note: At 74 FR 25985, May 29, 2009, Sec. 655.5 was
redesignated as Sec. 655.81 and suspended, effective June 29, 2009.
Editorial Note: At 77 FR 10169, Feb. 21, 2012, Sec. 655.81 was
removed and reserved; however, the amendment could not be incorporated
because this section is currently suspended.
[[Page 345]]
Sec. Sec. 655.82-655.99 [Reserved]
Subpart B_Labor Certification Process for Temporary Agricultural
Employment in the United States (H 2A Workers)
Source: 75 FR 6959, Feb. 12, 2010, unless otherwise noted.
Sec. 655.100 Scope and purpose of subpart B.
This subpart sets out the procedures established by the Secretary of
the United States Department of Labor (the Secretary) under the
authority given in 8 U.S.C. 1188 to acquire information sufficient to
make factual determinations of:
(a) Whether there are sufficient able, willing, and qualified United
States (U.S.) workers available to perform the temporary and seasonal
agricultural employment for which an employer desires to import
nonimmigrant foreign workers (H-2A workers); and
(b) Whether the employment of H-2A workers will adversely affect the
wages and working conditions of workers in the U.S. similarly employed.
Sec. 655.101 Authority of the Office of Foreign Labor Certification
(OFLC) Administrator.
The Secretary has delegated her authority to make determinations
under 8 U.S.C. 1188 to the Assistant Secretary for the Employment and
Training Administration (ETA), who in turn has delegated that authority
to the Office of Foreign Labor Certification (OFLC). The determinations
are made by the OFLC Administrator who, in turn, may delegate this
responsibility to designated staff members; e.g., a Certifying Officer
(CO).
Sec. 655.102 Special procedures.
To provide for a limited degree of flexibility in carrying out the
Secretary's responsibilities under the Immigration and Nationality Act
(INA), while not deviating from statutory requirements, the OFLC
Administrator has the authority to establish, continue, revise, or
revoke special procedures for processing certain H-2A applications.
Employers must demonstrate upon written application to the OFLC
Administrator that special procedures are necessary. These include
special procedures currently in effect for the handling of applications
for sheepherders in the Western States (and adaptation of such
procedures to occupations in the range production of other livestock),
and for custom combine harvesting crews. Similarly, for work in
occupations characterized by other than a reasonably regular workday or
workweek, such as the range production of sheep or other livestock, the
OFLC Administrator has the authority to establish monthly, weekly, or
semi-monthly adverse effect wage rates (AEWR) for those occupations for
a statewide or other geographical area. Prior to making determinations
under this section, the OFLC Administrator may consult with affected
employer and worker representatives. Special Procedures in place on the
effective date of this regulation will remain in force until modified by
the Administrator.
Sec. 655.103 Overview of this subpart and definition of terms.
(a) Overview. In order to bring nonimmigrant workers to the U.S. to
perform agricultural work, an employer must first demonstrate to the
Secretary that there are not sufficient U.S. workers able, willing, and
qualified to perform the work in the area of intended employment at the
time needed and that the employment of foreign workers will not
adversely affect the wages and working conditions of U.S. workers
similarly employed. This rule describes a process by which the
Department of Labor (Department or DOL) makes such a determination and
certifies its determination to the Department of Homeland Security
(DHS).
(b) Definitions. For the purposes of this subpart:
Administrative Law Judge (ALJ). A person within the Department's
Office of Administrative Law Judges appointed pursuant to 5 U.S.C. 3105.
Adverse effect wage rate (AEWR). The annual weighted average hourly
wage
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for field and livestock workers (combined) in the States or regions as
published annually by the U.S. Department of Agriculture (USDA) based on
its quarterly wage survey.
Agent. A legal entity or person, such as an association of
agricultural employers, or an attorney for an association, that:
(1) Is authorized to act on behalf of the employer for temporary
agricultural labor certification purposes;
(2) Is not itself an employer, or a joint employer, as defined in
this subpart with respect to a specific application; and
(3) Is not under suspension, debarment, expulsion, or disbarment
from practice before any court, the Department, the Executive Office for
Immigration Review, or DHS under 8 CFR 292.3 or 1003.101.
Agricultural association. Any nonprofit or cooperative association
of farmers, growers, or ranchers (including but not limited to
processing establishments, canneries, gins, packing sheds, nurseries, or
other similar fixed-site agricultural employers), incorporated or
qualified under applicable State law, that recruits, solicits, hires,
employs, furnishes, houses, or transports any worker that is subject to
8 U.S.C. 1188. An agricultural association may act as the agent of an
employer, or may act as the sole or joint employer of any worker subject
to 8 U.S.C. 1188.
Area of intended employment. The geographic area within normal
commuting distance of the place of the job opportunity for which the
certification is sought. There is no rigid measure of distance that
constitutes a normal commuting distance or normal commuting area,
because there may be widely varying factual circumstances among
different areas (e.g., average commuting times, barriers to reaching the
worksite, or quality of the regional transportation network). If the
place of intended employment is within a Metropolitan Statistical Area
(MSA), including a multistate MSA, any place within the MSA is deemed to
be within normal commuting distance of the place of intended employment.
The borders of MSAs are not controlling in the identification of the
normal commuting area; a location outside of an MSA may be within normal
commuting distance of a location that is inside (e.g., near the border
of) the MSA.
Attorney. Any person who is a member in good standing of the bar of
the highest court of any State, possession, territory, or commonwealth
of the U.S., or the District of Columbia. Such a person is also
permitted to act as an agent under this subpart. No attorney who is
under suspension, debarment, expulsion, or disbarment from practice
before any court, the Department, the Executive Office for Immigration
Review under 8 CFR 1003.101, or DHS under 8 CFR 292.3 may represent an
employer under this subpart.
Certifying Officer (CO). The person who makes determination on an
Application for Temporary Employment Certification filed under the H-2A
program. The OFLC Administrator is the national CO. Other COs may be
designated by the OFLC Administrator to also make the determinations
required under this subpart.
Corresponding employment. The employment of workers who are not H-2A
workers by an employer who has an approved H-2A Application for
Temporary Employment Certification in any work included in the job
order, or in any agricultural work performed by the H-2A workers. To
qualify as corresponding employment the work must be performed during
the validity period of the job order, including any approved extension
thereof.
Date of need. The first date the employer requires the services of
H-2A workers as indicated in the Application for Temporary Employment
Certification.
Employee. A person who is engaged to perform work for an employer,
as defined under the general common law of agency. Some of the factors
relevant to the determination of employee status include: The hiring
party's right to control the manner and means by which the work is
accomplished; the skill required to perform the work; the source of the
instrumentalities and tools for accomplishing the work; the location of
the work; the hiring party's discretion over when and how long to work;
and whether the work is part of the regular business of the hiring
party. Other applicable factors may be
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considered and no one factor is dispositive.
Employer. A person (including any individual, partnership,
association, corporation, cooperative, firm, joint stock company, trust,
or other organization with legal rights and duties) that:
(1) Has a place of business (physical location) in the U.S. and a
means by which it may be contacted for employment;
(2) Has an employer relationship (such as the ability to hire, pay,
fire, supervise or otherwise control the work of employee) with respect
to an H-2A worker or a worker in corresponding employment; and
(3) Possesses, for purposes of filing an Application for Temporary
Employment Certification, a valid Federal Employer Identification Number
(FEIN).
Federal holiday. Legal public holiday as defined at 5 U.S.C. 6103.
Fixed-site employer. Any person engaged in agriculture who meets the
definition of an employer, as those terms are defined in this subpart,
who owns or operates a farm, ranch, processing establishment, cannery,
gin, packing shed, nursery, or other similar fixed-site location where
agricultural activities are performed and who recruits, solicits, hires,
employs, houses, or transports any worker subject to 8 U.S.C. 1188, 29
CFR part 501, or this subpart as incident to or in conjunction with the
owner's or operator's own agricultural operation.
H-2A Labor Contractor (H-2ALC). Any person who meets the definition
of employer under this subpart and is not a fixed-site employer, an
agricultural association, or an employee of a fixed-site employer or
agricultural association, as those terms are used in this part, who
recruits, solicits, hires, employs, furnishes, houses, or transports any
worker subject to 8 U.S.C. 1188, 29 CFR part 501, or this subpart.
H-2A worker. Any temporary foreign worker who is lawfully present in
the U.S. and authorized by DHS to perform agricultural labor or services
of a temporary or seasonal nature pursuant to 8 U.S.C.
1101(a)(15)(H)(ii)(a), as amended.
Job offer. The offer made by an employer or potential employer of H-
2A workers to both U.S. and H-2A workers describing all the material
terms and conditions of employment, including those relating to wages,
working conditions, and other benefits.
Job opportunity. Full-time employment at a place in the U.S. to
which U.S. workers can be referred.
Job Order. The document containing the material terms and conditions
of employment that is posted by the State Workforce Agency (SWA) on its
inter- and intra-state job clearance systems based on the employer's
Agricultural and Food Processing Clearance Order (Form ETA-790), as
submitted to the SWA.
Joint employment. Where two or more employers each have sufficient
definitional indicia of being an employer to be considered the employer
of a worker, those employers will be considered to jointly employ that
worker. Each employer in a joint employment relationship to a worker is
considered a joint employer of that worker.
Master application. An Application for Temporary Employment
Certification filed by an association of agricultural producers as a
joint employer with its employer-members. A master application must
cover the same occupations or comparable agricultural employment; the
same start date of need for all employer-members listed on the
Application for Temporary Employment Certification; and may cover
multiple areas of intended employment within a single State but no more
than two contiguous States.
National Processing Center (NPC). The office within OFLC in which
the COs operate and which are charged with the adjudication of
Applications for Temporary Employment Certification.
Office of Foreign Labor Certification (OFLC). OFLC means the
organizational component of the ETA that provides national leadership
and policy guidance and develops regulations and procedures to carry out
the responsibilities of the Secretary under the INA concerning the
admission of foreign workers to the U.S. to perform work described in 8
U.S.C. 1101(a)(15)(H)(ii)(a).
OFLC Administrator. The primary official of the Office of Foreign
Labor Certification (OFLC), or the OFLC Administrator's designee.
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Positive recruitment. The active participation of an employer or its
authorized hiring agent, performed under the auspices and direction of
the OFLC, in recruiting and interviewing individuals in the area where
the employer's job opportunity is located and any other State designated
by the Secretary as an area of traditional or expected labor supply with
respect to the area where the employer's job opportunity is located, in
an effort to fill specific job openings with U.S. workers.
Prevailing practice. A practice engaged in by employers, that:
(1) Fifty percent or more of employers in an area and for an
occupation engage in the practice or offer the benefit; and
(2) This 50 percent or more of employers also employs 50 percent or
more of U.S. workers in the occupation and area (including H-2A and non-
H-2A employers) for purposes of determinations concerning the provision
of family housing, and frequency of wage payments, but non-H-2A
employers only for determinations concerning the provision of advance
transportation and the utilization of labor contractors.
Prevailing wage. Wage established pursuant to 20 CFR 653.501(d)(4).
State Workforce Agency (SWA). State government agency that receives
funds pursuant to the Wagner-Peyser Act (29 U.S.C. 49 et seq.) to
administer the State's public labor exchange activities.
Strike. A concerted stoppage of work by employees as a result of a
labor dispute, or any concerted slowdown or other concerted interruption
of operation (including stoppage by reason of the expiration of a
collective bargaining agreement).
Successor in interest. (1) Where an employer has violated 8 U.S.C.
1188, 29 CFR part 501, or these regulations, and has ceased doing
business or cannot be located for purposes of enforcement, a successor
in interest to that employer may be held liable for the duties and
obligations of the violating employer in certain circumstances. The
following factors, as used under Title VII of the Civil Rights Act and
the Vietnam Era Veterans' Readjustment Assistance Act, may be considered
in determining whether an employer is a successor in interest; no one
factor is dispositive, but all of the circumstances will be considered
as a whole:
(i) Substantial continuity of the same business operations;
(ii) Use of the same facilities;
(iii) Continuity of the work force;
(iv) Similarity of jobs and working conditions;
(v) Similarity of supervisory personnel;
(vi) Whether the former management or owner retains a direct or
indirect interest in the new enterprise;
(vii) Similarity in machinery, equipment, and production methods;
(viii) Similarity of products and services; and
(ix) The ability of the predecessor to provide relief.
(2) For purposes of debarment only, the primary consideration will
be the personal involvement of the firm's ownership, management,
supervisors, and others associated with the firm in the violation(s) at
issue.
Temporary agricultural labor certification. Certification made by
the OFLC Administrator with respect to an employer seeking to file with
DHS a visa petition to employ one or more foreign nationals as an H-2A
worker, pursuant to 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(a) and (c), and
1188.
United States (U.S.). The continental U.S., Alaska, Hawaii, the
Commonwealth of Puerto Rico, and the territories of Guam, the U.S.
Virgin Islands, and the Commonwealth of the Northern Mariana Islands
(CNMI).
United States worker (U.S. worker). A worker who is:
(1) A citizen or national of the U.S.; or
(2) An alien who is lawfully admitted for permanent residence in the
U.S., is admitted as a refugee under 8 U.S.C. 1157, is granted asylum
under 8 U.S.C. 1158, or is an immigrant otherwise authorized (by the INA
or by DHS) to be employed in the U.S.; or
(3) An individual who is not an unauthorized alien (as defined in 8
U.S.C. 1324a(h)(3)) with respect to the employment in which the worker
is engaging.
Wages. All forms of cash remuneration to a worker by an employer in
payment for personal services.
[[Page 349]]
Work contract. All the material terms and conditions of employment
relating to wages, hours, working conditions, and other benefits,
including those required by 8 U.S.C. 1188, 29 CFR part 501, or this
subpart. The contract between the employer and the worker may be in the
form of a separate written document. In the absence of a separate
written work contract incorporating the required terms and conditions of
employment, agreed to by both the employer and the worker, the work
contract at a minimum will be the terms of the job order and any
obligations required under 8 U.S.C. 1188, 28 CFR part 501, or this
subpart.
(c) Definition of agricultural labor or services. For the purposes
of this subpart, agricultural labor or services, pursuant to 8 U.S.C.
1101(a)(15)(H)(ii)(a), is defined as: agricultural labor as defined and
applied in sec. 3121(g) of the Internal Revenue Code of 1986 at 26
U.S.C. 3121(g); agriculture as defined and applied in sec. 3(f) of the
Fair Labor Standards Act of 1938 (FLSA) at 29 U.S.C. 203(f); the
pressing of apples for cider on a farm; or logging employment. An
occupation included in either statutory definition is agricultural labor
or services, notwithstanding the exclusion of that occupation from the
other statutory definition. For informational purposes, the statutory
provisions are listed below.
(1)(i) Agricultural labor for the purpose of paragraph (c) of this
section means all service performed:
(A) On a farm, in the employ of any person, in connection with
cultivating the soil, or in connection with raising or harvesting any
agricultural or horticultural commodity, including the raising,
shearing, feeding, caring for, training, and management of livestock,
bees, poultry, and fur-bearing animals and wildlife;
(B) In the employ of the owner or tenant or other operator of a
farm, in connection with the operation, management, conservation,
improvement, or maintenance of such farm and its tools and equipment, or
in salvaging timber or clearing land of brush and other debris left by a
hurricane, if the major part of such service is performed on a farm;
(C) In connection with the production or harvesting of any commodity
defined as an agricultural commodity in section 15(g) of the
Agricultural Marketing Act, as amended (12 U.S.C. 1141j), or in
connection with the ginning of cotton, or in connection with the
operation or maintenance of ditches, canals, reservoirs, or waterways,
not owned or operated for profit, used exclusively for supplying and
storing water for farming purposes;
(D) In the employ of the operator of a farm in handling, planting,
drying, packing, packaging, processing, freezing, grading, storing, or
delivering to storage or to market or to a carrier for transportation to
market, in its unmanufactured state, any agricultural or horticultural
commodity; but only if such operator produced more than one-half of the
commodity with respect to which such service is performed;
(E) In the employ of a group of operators of farms (other than a
cooperative organization) in the performance of service described in
paragraph (c)(1)(iv) of this section but only if such operators produced
all of the commodity with respect to which such service is performed.
For purposes of this paragraph, any unincorporated group of operators
shall be deemed a cooperative organization if the number of operators
comprising such group is more than 20 at any time during the calendar
year in which such service is performed;
(F) The provisions of paragraphs (c)(1)(iv) and (c)(1)(v) of this
section shall not be deemed to be applicable with respect to service
performed in connection with commercial canning or commercial freezing
or in connection with any agricultural or horticultural commodity after
its delivery to a terminal market for distribution for consumption; or
(G) On a farm operated for profit if such service is not in the
course of the employer's trade or business or is domestic service in a
private home of the employer.
(ii) As used in this section, the term farm includes stock, dairy,
poultry, fruit, fur-bearing animal, and truck farms, plantations,
ranches, nurseries, ranges, greenhouses or other similar
[[Page 350]]
structures used primarily for the raising of agricultural or
horticultural commodities, and orchards.
(2) Agriculture. For purposes of paragraph (c) of this section,
agriculture means farming in all its branches and among other things
includes the cultivation and tillage of the soil, dairying, the
production, cultivation, growing, and harvesting of any agricultural or
horticultural commodities (including commodities defined as agricultural
commodities in 1141j(g) of title 12, the raising of livestock, bees,
fur-bearing animals, or poultry, and any practices (including any
forestry or lumbering operations) performed by a farmer or on a farm as
an incident to or in conjunction with such farming operations, including
preparation for market, delivery to storage or to market or to carriers
for transportation to market. See sec. 29 U.S.C. 203(f), as amended
(sec. 3(f) of the FLSA, as codified). Under 12 U.S.C. 1141j(g)
agricultural commodities include, in addition to other agricultural
commodities, crude gum (oleoresin) from a living tree, and the following
products as processed by the original producer of the crude gum
(oleoresin) from which derived: gum spirits of turpentine and gum rosin.
In addition as defined in 7 U.S.C. 92, gum spirits of turpentine means
spirits of turpentine made from gum (oleoresin) from a living tree and
gum rosin means rosin remaining after the distillation of gum spirits of
turpentine.
(3) Apple pressing for cider. The pressing of apples for cider on a
farm, as the term farm is defined and applied in sec. 3121(g) of the
Internal Revenue Code at 26 U.S.C. 3121(g) or as applied in sec. 3(f) of
the FLSA at 29 U.S.C. 203(f), pursuant to 29 CFR part 780.
(4) Logging employment. Operations associated with felling and
moving trees and logs from the stump to the point of delivery, such as,
but not limited to, marking danger trees and trees/logs to be cut to
length, felling, limbing, bucking, debarking, chipping, yarding,
loading, unloading, storing, and transporting machines, equipment and
personnel to, from and between logging sites.
(d) Definition of a temporary or seasonal nature. For the purposes
of this subpart, employment is of a seasonal nature where it is tied to
a certain time of year by an event or pattern, such as a short annual
growing cycle or a specific aspect of a longer cycle, and requires labor
levels far above those necessary for ongoing operations. Employment is
of a temporary nature where the employer's need to fill the position
with a temporary worker will, except in extraordinary circumstances,
last no longer than 1 year.
Prefiling Procedures
Sec. 655.120 Offered wage rate.
(a) To comply with its obligation under Sec. 655.122(l), an
employer must offer, advertise in its recruitment, and pay a wage that
is the highest of the AEWR, the prevailing hourly wage or piece rate,
the agreed-upon collective bargaining wage, or the Federal or State
minimum wage, except where a special procedure is approved for an
occupation or specific class of agricultural employment.
(b) If the prevailing hourly wage rate or piece rate is adjusted
during a work contract, and is higher than the highest of the AEWR, the
prevailing wage, the agreed-upon collective bargaining wage, or the
Federal or State minimum wage, in effect at the time the work is
performed, the employer must pay that higher prevailing wage or piece
rate, upon notice to the employer by the Department.
(c) The OFLC Administrator will publish, at least once in each
calendar year, on a date to be determined by the OFLC Administrator, the
AEWRs for each State as a notice in the Federal Register.
Sec. 655.121 Job orders.
(a) Area of intended employment. (1) Prior to filing an Application
for Temporary Employment Certification, the employer must submit a job
order, Form ETA-790, to the SWA serving the area of intended employment
for intrastate clearance, identifying it as a job order to be placed in
connection with a future Application for Temporary Employment
Certification for H-2A workers. The employer must submit this job order
no more than 75 calendar days
[[Page 351]]
and no fewer than 60 calendar days before the date of need. If the job
opportunity is located in more than one State within the same area of
intended employment, the employer may submit a job order to any one of
the SWAs having jurisdiction over the anticipated worksites.
(2) Where the job order is being placed in connection with a future
master application to be filed by an association of agricultural
employers as a joint employer, the association may submit a single job
order to be placed in the name of the association on behalf of all
employers that will be duly named on the Application for Temporary
Employment Certification.
(3) The job order submitted to the SWA must satisfy the requirements
for agricultural clearance orders in 20 CFR part 653, subpart F and the
requirements set forth in Sec. 655.122.
(b) SWA review. (1) The SWA will review the contents of the job
order for compliance with the requirements specified in 20 CFR part 653,
subpart F and this subpart, and will work with the employer to address
any noted deficiencies. The SWA must notify the employer in writing of
any deficiencies in its job order no later than 7 calendar days after it
has been submitted. The SWA notification will direct the employer to
respond to the noted deficiencies. The employer must respond to the
deficiencies noted by the SWA within 5 calendar days after receipt of
the SWA notification. The SWA must respond to the employer's response
within 3 calendar days.
(2) If, after providing responses to the deficiencies noted by the
SWA, the employer is not able to resolve the deficiencies with the SWA,
the employer may file an Application for Temporary Employment
Certification pursuant to the emergency filing procedures contained in
Sec. 655.134, with a statement describing the nature of the dispute and
demonstrating compliance with its requirements under this section. In
the event the SWA does not respond within the stated timelines, the
employer may use the emergency filing procedures noted above. If upon
review of the Application for Temporary Employment Certification and the
job order and all other relevant information, the CO concludes that the
job order is acceptable, the CO will direct the SWA to place the job
order into intrastate and interstate clearance and otherwise process the
Application in accordance with the procedures contained in Sec.
655.134(c). If the CO determines the job order is not acceptable, the CO
will issue a Notice of Deficiency to the employer under Sec. 655.143 of
this subpart directing the employer to modify the job order pursuant to
paragraph (e) of this section The Notice of Deficiency will offer the
employer the right to appeal.
(c) Intrastate clearance. Upon its clearance of the job order, the
SWA must promptly place the job order in intrastate clearance and
commence recruitment of U.S. workers. Where the employer's job order
references an area of intended employment which falls within the
jurisdiction of more than one SWA, the originating SWA will also forward
a copy of the approved job order to the other SWAs serving the area of
intended employment.
(d) Duration of job order posting. The SWA must keep the job order
on its active file until the end of the recruitment period, as set forth
in Sec. 655.135(d), and must refer each U.S. worker who applies (or on
whose behalf an Application for Temporary Employment Certification is
made) for the job opportunity.
(e) Modifications to the job order. (1) Prior to the issuance of the
final determination, the CO may require modifications to the job order
when the CO determines that the offer of employment does not contain all
the minimum benefits, wages, and working condition provisions. Such
modifications must be made or certification will be denied pursuant to
Sec. 655.164 of this subpart.
(2) The employer may request a modification of the job order, Form
ETA-790, prior to the submission of an Application for Temporary
Employment Certification. However, the employer may not reject referrals
against the job order based upon a failure on the part of the applicant
to meet the amended criteria, if such referral was made prior to the
amendment of the job order. The employer may not amend the job order on
or after the date of filing an Application for Temporary Employment
Certification.
[[Page 352]]
(3) The employer must provide all workers recruited in connection
with the Application for Temporary Employment Certification with a copy
of the modified job order or work contract which reflects the amended
terms and conditions, on the first day of employment, in accordance with
Sec. 655.122(q), or as soon as practicable, whichever comes first.
Sec. 655.122 Contents of job offers.
(a) Prohibition against preferential treatment of aliens. The
employer's job offer must offer to U.S. workers no less than the same
benefits, wages, and working conditions that the employer is offering,
intends to offer, or will provide to H-2A workers. Job offers may not
impose on U.S. workers any restrictions or obligations that will not be
imposed on the employer's H-2A workers. This does not relieve the
employer from providing to H-2A workers at least the same level of
minimum benefits, wages, and working conditions which must be offered to
U.S. workers consistent with this section.
(b) Job qualifications and requirements. Each job qualification and
requirement listed in the job offer must be bona fide and consistent
with the normal and accepted qualifications required by employers that
do not use H-2A workers in the same or comparable occupations and crops.
Either the CO or the SWA may require the employer to submit
documentation to substantiate the appropriateness of any job
qualification specified in the job offer.
(c) Minimum benefits, wages, and working conditions. Every job order
accompanying an Application for Temporary Employment Certification must
include each of the minimum benefit, wage, and working condition
provisions listed in paragraphs (d) through (q) of this section.
(d) Housing. (1) Obligation to provide housing. The employer must
provide housing at no cost to the H-2A workers and those workers in
corresponding employment who are not reasonably able to return to their
residence within the same day. Housing must be provided through one of
the following means:
(i) Employer-provided housing. Employer-provided housing must meet
the full set of DOL Occupational Safety and Health Administration (OSHA)
standards set forth at 29 CFR 1910.142, or the full set of standards at
Sec. Sec. 654.404 through 654.417 of this chapter, whichever are
applicable under Sec. 654.401 of this chapter. Requests by employers
whose housing does not meet the applicable standards for conditional
access to the interstate clearance system, will be processed under the
procedures set forth at Sec. 654.403 of this chapter; or
(ii) Rental and/or public accommodations. Rental or public
accommodations or other substantially similar class of habitation must
meet local standards for such housing. In the absence of applicable
local standards, State standards will apply. In the absence of
applicable local or State standards, DOL OSHA standards at 29 CFR
1910.142 will apply. Any charges for rental housing must be paid
directly by the employer to the owner or operator of the housing. The
employer must document to the satisfaction of the CO that the housing
complies with the local, State, or Federal housing standards.
(2) Standards for range housing. Housing for workers principally
engaged in the range production of livestock must meet standards of DOL
OSHA for such housing. In the absence of such standards, range housing
for sheepherders and other workers engaged in the range production of
livestock must meet guidelines issued by OFLC.
(3) Deposit charges. Charges in the form of deposits for bedding or
other similar incidentals related to housing must not be levied upon
workers. However, employers may require workers to reimburse them for
damage caused to housing by the individual worker(s) found to have been
responsible for damage which is not the result of normal wear and tear
related to habitation.
(4) Charges for public housing. If public housing provided for
migrant agricultural workers under the auspices of a local, county, or
State government is secured by the employer, the employer must pay any
charges normally required for use of the public housing units directly
to the housing's management.
(5) Family housing. When it is the prevailing practice in the area
of intended
[[Page 353]]
employment and the occupation to provide family housing, it must be
provided to workers with families who request it.
(6) Certified housing that becomes unavailable. If after a request
to certify housing, such housing becomes unavailable for reasons outside
the employer's control, the employer may substitute other rental or
public accommodation housing that is in compliance with the local,
State, or Federal housing standards applicable under this section. The
employer must promptly notify the SWA in writing of the change in
accommodations and the reason(s) for such change and provide the SWA
evidence of compliance with the applicable local, State or Federal
safety and health standards, in accordance with the requirements of this
section. If, upon inspection, the SWA determines the substituted housing
does not meet the applicable housing standards, the SWA must promptly
provide written notification to the employer to cure the deficiencies
with a copy to the CO. An employer's failure to provide housing that
complies with the applicable standards will result in either a denial of
a pending Application for Temporary Employment Certification or
revocation of the temporary labor certification granted under this
subpart.
(e) Workers' compensation. (1) The employer must provide workers'
compensation insurance coverage in compliance with State law covering
injury and disease arising out of and in the course of the worker's
employment. If the type of employment for which the certification is
sought is not covered by or is exempt from the State's workers'
compensation law, the employer must provide, at no cost to the worker,
insurance covering injury and disease arising out of and in the course
of the worker's employment that will provide benefits at least equal to
those provided under the State workers' compensation law for other
comparable employment.
(2) Prior to issuance of the temporary labor certification, the
employer must provide the CO with proof of workers' compensation
insurance coverage meeting the requirements of this paragraph, including
the name of the insurance carrier, the insurance policy number, and
proof of insurance for the dates of need, or, if appropriate, proof of
State law coverage.
(f) Employer-provided items. The employer must provide to the
worker, without charge or deposit charge, all tools, supplies, and
equipment required to perform the duties assigned.
(g) Meals. The employer either must provide each worker with three
meals a day or must furnish free and convenient cooking and kitchen
facilities to the workers that will enable the workers to prepare their
own meals. Where the employer provides the meals, the job offer must
state the charge, if any, to the worker for such meals. The amount of
meal charges is governed by Sec. 655.173.
(h) Transportation; daily subsistence--(1) Transportation to place
of employment. If the employer has not previously advanced such
transportation and subsistence costs to the worker or otherwise provided
such transportation or subsistence directly to the worker by other means
and if the worker completes 50 percent of the work contract period, the
employer must pay the worker for reasonable costs incurred by the worker
for transportation and daily subsistence from the place from which the
worker has come to work for the employer, whether in the U.S. or abroad
to the place of employment. When it is the prevailing practice of non-H-
2A agricultural employers in the occupation in the area to do so, or
when the employer extends such benefits to similarly situated H-2A
workers, the employer must advance the required transportation and
subsistence costs (or otherwise provide them) to workers in
corresponding employment who are traveling to the employer's worksite.
The amount of the transportation payment must be no less (and is not
required to be more) than the most economical and reasonable common
carrier transportation charges for the distances involved. The amount of
the daily subsistence payment must be at least as much as the employer
would charge the worker for providing the worker with three meals a day
during employment (if applicable), but in no event less than the amount
permitted under Sec. 655.173(a). Note that the FLSA
[[Page 354]]
applies independently of the H-2A requirements and imposes obligations
on employers regarding payment of wages.
(2) Transportation from place of employment. If the worker completes
the work contract period, or if the employee is terminated without
cause, and the worker has no immediate subsequent H-2A employment, the
employer must provide or pay for the worker's transportation and daily
subsistence from the place of employment to the place from which the
worker, disregarding intervening employment, departed to work for the
employer. If the worker has contracted with a subsequent employer who
has not agreed in such work contract to provide or pay for the worker's
transportation and daily subsistence expenses from the employer's
worksite to such subsequent employer's worksite, the employer must
provide or pay for such expenses. If the worker has contracted with a
subsequent employer who has agreed in such work contract to provide or
pay for the worker's transportation and daily subsistence expenses from
the employer's worksite to such subsequent employer's worksite, the
subsequent employer must provide or pay for such expenses. The employer
is not relieved of its obligation to provide or pay for return
transportation and subsistence if an H-2A worker is displaced as a
result of the employer's compliance with the 50 percent rule as
described in Sec. 655.135(d) of this subpart with respect to the
referrals made after the employer's date of need.
(3) Transportation between living quarters and worksite. The
employer must provide transportation between housing provided or secured
by the employer and the employer's worksite at no cost to the worker.
(4) Employer-provided transportation. All employer-provided
transportation must comply with all applicable Federal, State or local
laws and regulations, and must provide, at a minimum, the same
transportation safety standards, driver licensure, and vehicle insurance
as required under 29 U.S.C. 1841 and 29 CFR 500.105 and 29 CFR 500.120
to 500.128. If workers' compensation is used to cover transportation, in
lieu of vehicle insurance, the employer must either ensure that the
workers' compensation covers all travel or that vehicle insurance exists
to provide coverage for travel not covered by workers' compensation and
they must have property damage insurance.
(i) Three-fourths guarantee--(1) Offer to worker. The employer must
guarantee to offer the worker employment for a total number of work
hours equal to at least three-fourths of the workdays of the total
period beginning with the first workday after the arrival of the worker
at the place of employment or the advertised contractual first date of
need, whichever is later, and ending on the expiration date specified in
the work contract or in its extensions, if any.
(i) For purposes of this paragraph a workday means the number of
hours in a workday as stated in the job order and excludes the worker's
Sabbath and Federal holidays. The employer must offer a total number of
hours to ensure the provision of sufficient work to reach the three-
fourths guarantee. The work hours must be offered during the work period
specified in the work contract, or during any modified work contract
period to which the worker and employer have mutually agreed and that
has been approved by the CO.
(ii) The work contract period can be shortened by agreement of the
parties only with the approval of the CO. In the event the worker begins
working later than the specified beginning date of the contract, the
guarantee period begins with the first workday after the arrival of the
worker at the place of employment, and continues until the last day
during which the work contract and all extensions thereof are in effect.
(iii) Therefore, if, for example, a work contract is for a 10-week
period, during which a normal workweek is specified as 6 days a week, 8
hours per day, the worker would have to be guaranteed employment for at
least 360 hours (10 weeks x 48 hours/week = 480 hours x 75 percent =
360). If a Federal holiday occurred during the 10-week span, the 8 hours
would be deducted from the total hours for the work contract, before the
guarantee is calculated. Continuing with the above example, the worker
would have to be guaranteed employment for 354 hours
[[Page 355]]
(10 weeks x 48 hours/week = 480 hours - 8 hours (Federal holiday) x 75
percent = 354 hours).
(iv) A worker may be offered more than the specified hours of work
on a single workday. For purposes of meeting the guarantee, however, the
worker will not be required to work for more than the number of hours
specified in the job order for a workday, or on the worker's Sabbath or
Federal holidays. However, all hours of work actually performed may be
counted by the employer in calculating whether the period of guaranteed
employment has been met. If during the total work contract period the
employer affords the U.S. or H-2A worker less employment than that
required under this paragraph, the employer must pay such worker the
amount the worker would have earned had the worker, in fact, worked for
the guaranteed number of days. An employer will not be considered to
have met the work guarantee if the employer has merely offered work on
three-fourths of the workdays if each workday did not consist of a full
number of hours of work time as specified in the job order.
(2) Guarantee for piece rate paid worker. If the worker is paid on a
piece rate basis, the employer must use the worker's average hourly
piece rate earnings or the required hourly wage rate, whichever is
higher, to calculate the amount due under the guarantee.
(3) Failure to work. Any hours the worker fails to work, up to a
maximum of the number of hours specified in the job order for a workday,
when the worker has been offered an opportunity to work in accordance
with paragraph (i)(1) of this section, and all hours of work actually
performed (including voluntary work over 8 hours in a workday or on the
worker's Sabbath or Federal holidays), may be counted by the employer in
calculating whether the period of guaranteed employment has been met. An
employer seeking to calculate whether the number of hours has been met
must maintain the payroll records in accordance with this subpart.
(4) Displaced H-2A worker. The employer is not liable for payment of
the three-fourths guarantee to an H-2A worker whom the CO certifies is
displaced because of the employer's compliance with the 50 percent rule
described in Sec. 655.135(d) with respect to referrals made during that
period.
(5) Obligation to provide housing and meals. Notwithstanding the
three-fourths guarantee contained in this section, employers are
obligated to provide housing and meals in accordance with paragraphs (d)
and (g) of this section for each day of the contract period up until the
day the workers depart for other H-2A employment, depart to the place
outside of the U.S. from which the worker came, or, if the worker
voluntarily abandons employment or is terminated for cause, the day of
such abandonment or termination.
(j) Earnings records. (1) The employer must keep accurate and
adequate records with respect to the workers' earnings, including but
not limited to field tally records, supporting summary payroll records,
and records showing the nature and amount of the work performed; the
number of hours of work offered each day by the employer (broken out by
hours offered both in accordance with and over and above the three-
fourths guarantee at paragraph (i)(3) of this section); the hours
actually worked each day by the worker; the time the worker began and
ended each workday; the rate of pay (both piece rate and hourly, if
applicable); the worker's earnings per pay period; the worker's home
address; and the amount of and reasons for any and all deductions taken
from the worker's wages.
(2) Each employer must keep the records required by this part,
including field tally records and supporting summary payroll records,
safe and accessible at the place or places of employment, or at one or
more established central recordkeeping offices where such records are
customarily maintained. All records must be available for inspection and
transcription by the Secretary or a duly authorized and designated
representative, and by the worker and representatives designated by the
worker as evidenced by appropriate documentation (an Entry of Appearance
as Attorney or Representative, Form G-28, signed by the worker, or an
affidavit signed by the worker
[[Page 356]]
confirming such representation). Where the records are maintained at a
central recordkeeping office, other than in the place or places of
employment, such records must be made available for inspection and
copying within 72 hours following notice from the Secretary, or a duly
authorized and designated representative, and by the worker and
designated representatives as described in this paragraph.
(3) To assist in determining whether the three-fourths guarantee in
paragraph (i) of this section has been met, if the number of hours
worked by the worker on a day during the work contract period is less
than the number of hours offered, as specified in the job offer, the
records must state the reason or reasons therefore.
(4) The employer must retain the records for not less than 3 years
after the date of the certification.
(k) Hours and earnings statements. The employer must furnish to the
worker on or before each payday in one or more written statements the
following information:
(1) The worker's total earnings for the pay period;
(2) The worker's hourly rate and/or piece rate of pay;
(3) The hours of employment offered to the worker (showing offers in
accordance with the three-fourths guarantee as determined in paragraph
(i) of this section, separate from any hours offered over and above the
guarantee);
(4) The hours actually worked by the worker;
(5) An itemization of all deductions made from the worker's wages;
(6) If piece rates are used, the units produced daily;
(7) Beginning and ending dates of the pay period; and
(8) The employer's name, address and FEIN.
(l) Rates of pay. If the worker is paid by the hour, the employer
must pay the worker at least the AEWR, the prevailing hourly wage rate,
the prevailing piece rate, the agreed-upon collective bargaining rate,
or the Federal or State minimum wage rate, in effect at the time work is
performed, whichever is highest, for every hour or portion thereof
worked during a pay period.
(1) The offered wage may not be based on commission, bonuses, or
other incentives, unless the employer guarantees a wage paid on a
weekly, semi-monthly, or monthly basis that equals or exceeds the AEWR,
prevailing hourly wage or piece rate, the legal Federal or State minimum
wage, or any agreed-upon collective bargaining rate, whichever is
highest; or
(2) If the worker is paid on a piece rate basis and at the end of
the pay period the piece rate does not result in average hourly piece
rate earnings during the pay period at least equal to the amount the
worker would have earned had the worker been paid at the appropriate
hourly rate:
(i) The worker's pay must be supplemented at that time so that the
worker's earnings are at least as much as the worker would have earned
during the pay period if the worker had instead been paid at the
appropriate hourly wage rate for each hour worked;
(ii) The piece rate must be no less than the piece rate prevailing
for the activity in the area of intended employment; and
(iii) If the employer who pays by the piece rate requires one or
more minimum productivity standards of workers as a condition of job
retention, such standards must be specified in the job offer and be no
more than those required by the employer in 1977, unless the OFLC
Administrator approves a higher minimum, or, if the employer first
applied for H-2A temporary labor certification after 1977, such
standards must be no more than those normally required (at the time of
the first Application for Temporary Employment Certification) by other
employers for the activity in the area of intended employment.
(m) Frequency of pay. The employer must state in the job offer the
frequency with which the worker will be paid, which must be at least
twice monthly or according to the prevailing practice in the area of
intended employment, whichever is more frequent. Employers must pay
wages when due.
(n) Abandonment of employment or termination for cause. If the
worker voluntarily abandons employment before the
[[Page 357]]
end of the contract period, or is terminated for cause, and the employer
notifies the NPC, and DHS in the case of an H-2A worker, in writing or
by any other method specified by the Department or DHS in a manner
specified in a notice published in the Federal Register not later than 2
working days after such abandonment occurs, the employer will not be
responsible for providing or paying for the subsequent transportation
and subsistence expenses of that worker under this section, and that
worker is not entitled to the three-fourths guarantee described in
paragraph (i) of this section. Abandonment will be deemed to begin after
a worker fails to report for work at the regularly scheduled time for 5
consecutive working days without the consent of the employer.
(o) Contract impossibility. If, before the expiration date specified
in the work contract, the services of the worker are no longer required
for reasons beyond the control of the employer due to fire, weather, or
other Act of God that makes the fulfillment of the contract impossible,
the employer may terminate the work contract. Whether such an event
constitutes a contract impossibility will be determined by the CO. In
the event of such termination of a contract, the employer must fulfill a
three-fourths guarantee for the time that has elapsed from the start of
the work contract to the time of its termination, as described in
paragraph (i)(1) of this section. The employer must make efforts to
transfer the worker to other comparable employment acceptable to the
worker, consistent with existing immigration law, as applicable. If such
transfer is not affected, the employer must:
(1) Return the worker, at the employer's expense, to the place from
which the worker (disregarding intervening employment) came to work for
the employer, or transport the worker to the worker's next certified H-
2A employer, whichever the worker prefers;
(2) Reimburse the worker the full amount of any deductions made from
the worker's pay by the employer for transportation and subsistence
expenses to the place of employment; and
(3) Pay the worker for any costs incurred by the worker for
transportation and daily subsistence to that employer's place of
employment. Daily subsistence must be computed as set forth in paragraph
(h) of this section. The amount of the transportation payment must not
be less (and is not required to be more) than the most economical and
reasonable common carrier transportation charges for the distances
involved.
(p) Deductions. (1) The employer must make all deductions from the
worker's paycheck required by law. The job offer must specify all
deductions not required by law which the employer will make from the
worker's paycheck. All deductions must be reasonable. The employer may
deduct the cost of the worker's transportation and daily subsistence
expenses to the place of employment which were borne directly by the
employer. In such circumstances, the job offer must state that the
worker will be reimbursed the full amount of such deduction upon the
worker's completion of 50 percent of the work contract period. However,
an employer subject to the FLSA may not make deductions that would
violate the FLSA.
(2) A deduction is not reasonable if it includes a profit to the
employer or to any affiliated person. A deduction that is primarily for
the benefit or convenience of the employer will not be recognized as
reasonable and therefore the cost of such an item may not be included in
computing wages. The wage requirements of Sec. 655.120 will not be met
where undisclosed or unauthorized deductions, rebates, or refunds reduce
the wage payment made to the employee below the minimum amounts required
under this subpart, or where the employee fails to receive such amounts
free and clear because the employee kicks back directly or indirectly to
the employer or to another person for the employer's benefit the whole
or part of the wage delivered to the employee. The principles applied in
determining whether deductions are reasonable and payments are received
free and clear, and the permissibility of deductions for payments to
third persons are explained in more detail in 29 CFR part 531.
(q) Disclosure of work contract. The employer must provide to an H-
2A worker no later than the time at which
[[Page 358]]
the worker applies for the visa, or to a worker in corresponding
employment no later than on the day work commences, a copy of the work
contract between the employer and the worker in a language understood by
the worker as necessary or reasonable. For an H-2A worker going from an
H-2A employer to a subsequent H-2A employer, the copy must be provided
no later than the time an offer of employment is made by the subsequent
H-2A employer. At a minimum, the work contract must contain all of the
provisions required by this section. In the absence of a separate,
written work contract entered into between the employer and the worker,
the required terms of the job order and the certified Application for
Temporary Employment Certification will be the work contract.
Application for Temporary Employment Certification Filing Procedures
Sec. 655.130 Application filing requirements.
All agricultural employers who desire to hire H-2A foreign
agricultural workers must apply for a certification from the Secretary
by filing an Application for Temporary Employment Certification with the
NPC designated by the OFLC Administrator. The following section provides
the procedures employers must follow when filing.
(a) What to file. An employer, whether individual, association, or
an H-2ALC, that desires to apply for temporary employment certification
of one or more nonimmigrant foreign workers must file a completed
Application for Temporary Employment Certification form and, unless a
specific exemption applies, a copy of Form ETA-790, submitted to the SWA
serving the area of intended employment, as set forth in Sec.
655.121(a).
(b) Timeliness. A completed Application for Temporary Employment
Certification must be filed no less than 45 calendar days before the
employer's date of need.
(c) Location and method of filing. The employer may send the
Application for Temporary Employment Certification and all required
supporting documentation by U.S. Mail or private mail courier to the
NPC. The Department will publish a Notice in the Federal Register
identifying the address(es), and any future address changes, to which
Applications for Temporary Employment Certification must be mailed, and
will also post these addresses on the OFLC Internet Web site at http://
www.foreignlaborcert.doleta.gov/. The Department may also require
Applications for Temporary Employment Certification, at a future date,
to be filed electronically in addition to or instead of by mail, notice
of which will be published in the Federal Register.
(d) Original signature. The Application for Temporary Employment
Certification must bear the original signature of the employer (and that
of the employer's authorized attorney or agent if the employer is
represented by an attorney or agent). An association filing a master
application as a joint employer may sign on behalf of its employer
members. An association filing as an agent may not sign on behalf of its
members but must obtain each member's signature on each Application for
Temporary Employment Certification prior to filing.
(e) Information received in the course of processing Applications
for Temporary Employment Certification and program integrity measures
such as audits may be forwarded from OFLC to Wage and Hour Division
(WHD) for enforcement purposes.
Sec. 655.131 Association filing requirements.
If an association files an Application for Temporary Employment
Certification, in addition to complying with all the assurances,
guarantees, and other requirements contained in this subpart and in part
653, subpart F, of this chapter, the following requirements also apply.
(a) Individual applications. Associations of agricultural employers
may file an Application for Temporary Employment Certification for H-2A
workers as a sole employer, a joint employer, or agent. The association
must identify in the Application for Temporary Employment Certification
in what capacity it is filing. The association must retain documentation
substantiating the employer or agency status of the association and be
prepared to submit such
[[Page 359]]
documentation in response to a Notice of Deficiency from the CO prior to
issuing a Final Determination, or in the event of an audit.
(b) Master applications. An association may file a master
application on behalf of its employer-members. The master application is
available only when the association is filing as a joint employer. An
association may submit a master application covering the same occupation
or comparable work available with a number of its employer-members in
multiple areas of intended employment, just as though all of the covered
employers were in fact a single employer, as long as a single date of
need is provided for all workers requested by the Application for
Temporary Employment Certification and all employer-members are located
in no more than two contiguous States. The association must identify on
the Application for Temporary Employment Certification by name, address,
total number of workers needed, and the crops and agricultural work to
be performed, each employer that will employ H-2A workers. The
association, as appropriate, will receive a certified Application for
Temporary Employment Certification that can be copied and sent to the
United States Citizenship and Immigration Services (USCIS) with each
employer-member's petition.
Sec. 655.132 H-2A labor contractor (H-2ALC) filing requirements.
If an H-2ALC intends to file an Application for Temporary Employment
Certification, the H-2ALC must meet all of the requirements of the
definition of employer in Sec. 655.103(b), and comply with all the
assurances, guarantees, and other requirements contained in this part,
including Assurances and Obligations of H-2A Employers, and in part 653,
subpart F, of this chapter.
(a) Scope of H-2ALC Applications. An Application for Temporary
Employment Certification filed by an H-2ALC must be limited to a single
area of intended employment in which the fixed-site employer(s) to whom
an H-2ALC is furnishing employees will be utilizing the employees.
(b) Required information and submissions. An H-2ALC must include in
or with its Application for Temporary Employment Certification the
following:
(1) The name and location of each fixed-site agricultural business
to which the H-2ALC expects to provide H-2A workers, the expected
beginning and ending dates when the H-2ALC will be providing the workers
to each fixed site, and a description of the crops and activities the
workers are expected to perform at such fixed site.
(2) A copy of the Migrant and Seasonal Agricultural Worker
Protection Act (MSPA) Farm Labor Contractor (FLC) Certificate of
Registration, if required under MSPA at 29 U.S.C. 1801 et seq.,
identifying the specific farm labor contracting activities the H-2ALC is
authorized to perform as an FLC.
(3) Proof of its ability to discharge financial obligations under
the H-2A program by including with the Application for Temporary
Employment Certification the original surety bond as required by 29 CFR
501.9. The bond document must clearly identify the issuer, the name,
address, phone number, and contact person for the surety, and provide
the amount of the bond (as calculated pursuant to 29 CFR 501.9) and any
identifying designation used by the surety for the bond.
(4) Copies of the fully-executed work contracts with each fixed-site
agricultural business identified under paragraph (b)(1) of this section.
(5) Where the fixed-site agricultural business will provide housing
or transportation to the workers, proof that:
(i) All housing used by workers and owned, operated or secured by
the fixed-site agricultural business complies with the applicable
standards as set forth in Sec. 655.122(d) and certified by the SWA; and
(ii) All transportation between the worksite and the workers' living
quarters that is provided by the fixed-site agricultural business
complies with all applicable Federal, State, or local laws and
regulations and must provide, at a minimum, the same vehicle safety
standards, driver licensure, and vehicle insurance as required under 29
U.S.C. 1841 and 29 CFR 500.105 and 500.120 to 500.128, except where
workers' compensation is used to cover such transportation as described
in Sec. 655.125(h).
[[Page 360]]
Sec. 655.133 Requirements for agents.
(a) An agent filing an Application for Temporary Employment
Certification on behalf of an employer must provide a copy of the agent
agreement or other document demonstrating the agent's authority to
represent the employer.
(b) In addition the agent must provide a copy of the MSPA FLC
Certificate of Registration, if required under MSPA at 29 U.S.C. 1801 et
seq., identifying the specific farm labor contracting activities the
agent is authorized to perform.
Sec. 655.134 Emergency situations.
(a) Waiver of time period. The CO may waive the time period for
filing for employers who did not make use of temporary alien
agricultural workers during the prior year's agricultural season or for
any employer that has other good and substantial cause (which may
include unforeseen changes in market conditions), provided that the CO
has sufficient time to test the domestic labor market on an expedited
basis to make the determinations required by Sec. 655.100.
(b) Employer requirements. The employer requesting a waiver of the
required time period must concurrently submit to the NPC and to the SWA
serving the area of intended employment a completed Application for
Temporary Employment Certification, a completed job order on the Form
ETA-790, and a statement justifying the request for a waiver of the time
period requirement. The statement must indicate whether the waiver
request is due to the fact that the employer did not use H-2A workers
during the prior agricultural season or whether the request is for good
and substantial cause. If the waiver is requested for good and
substantial cause, the employer's statement must also include detailed
information describing the good and substantial cause which has
necessitated the waiver request. Good and substantial cause may include,
but is not limited to, the substantial loss of U.S. workers due to
weather-related activities or other reasons, unforeseen events affecting
the work activities to be performed, pandemic health issues, or similar
conditions.
(c) Processing of emergency applications. The CO will process
emergency Applications for Temporary Employment Certification in a
manner consistent with the provisions set forth in Sec. Sec. 655.140
through 655.145 and make a determination on the Application for
Temporary Employment Certification in accordance with Sec. Sec. 655.160
through 655.167. The CO may advise the employer in writing that the
certification cannot be granted because, pursuant to paragraph (a) of
this section, the request for emergency filing was not justified and/or
there is not sufficient time to test the availability of U.S. workers
such that the CO can make a determination on the Application for
Temporary Employment Certification in accordance with Sec. 655.161.
Such notification will so inform the employer using the procedures
applicable to a denial of certification set forth in Sec. 655.164.
Sec. 655.135 Assurances and obligations of H-2A employers.
An employer seeking to employ H-2A workers must agree as part of the
Application for Temporary Employment Certification and job offer that it
will abide by the requirements of this subpart and make each of the
following additional assurances:
(a) Non-discriminatory hiring practices. The job opportunity is, and
through the period set forth in paragraph (d) of this section must
continue to be, open to any qualified U.S. worker regardless of race,
color, national origin, age, sex, religion, handicap, or citizenship.
Rejections of any U.S. workers who applied or apply for the job must be
only for lawful, job-related reasons, and those not rejected on this
basis have been or will be hired. In addition, the employer has and will
continue to retain records of all hires and rejections as required by
Sec. 655.167.
(b) No strike or lockout. The worksite for which the employer is
requesting H-2A certification does not currently have workers on strike
or being locked out in the course of a labor dispute.
(c) Recruitment requirements. The employer has and will continue to
cooperate with the SWA by accepting referrals of all eligible U.S.
workers who
[[Page 361]]
apply (or on whose behalf an Application for Temporary Employment
Certification is made) for the job opportunity until the end of the
period as specified in paragraph (d) of this section and must
independently conduct the positive recruitment activities, as specified
in Sec. 655.154, until the date on which the H-2A workers depart for
the place of work. Unless the SWA is informed in writing of a different
date, the date that is the third day preceding the employer's first date
of need will be determined to be the date the H-2A workers departed for
the employer's place of business.
(d) Fifty percent rule. From the time the foreign workers depart for
the employer's place of employment, the employer must provide employment
to any qualified, eligible U.S. worker who applies to the employer until
50 percent of the period of the work contract has elapsed. Start of the
work contract timeline is calculated from the first date of need stated
on the Application for Temporary Employment Certification, under which
the foreign worker who is in the job was hired. This provision will not
apply to any employer who certifies to the CO in the Application for
Temporary Employment Certification that the employer:
(1) Did not, during any calendar quarter during the preceding
calendar year, use more than 500 man-days of agricultural labor, as
defined in sec. 203(u) of Title 29;
(2) Is not a member of an association which has petitioned for
certification under this subpart for its members; and
(3) Has not otherwise associated with other employers who are
petitioning for temporary foreign workers under this subpart.
(e) Compliance with applicable laws. During the period of employment
that is the subject of the Application for Temporary Employment
Certification, the employer must comply with all applicable Federal,
State and local laws and regulations, including health and safety laws.
In compliance with such laws, including the William Wilberforce
Trafficking Victims Protection Reauthorization Act of 2008, Pub. L. 110-
457, 18 U.S.C. 1592(a), the employer may not hold or confiscate workers'
passports, visas, or other immigration documents. H-2A employers may
also be subject to the FLSA. The FLSA operates independently of the H-2A
program and has specific requirements that address payment of wages,
including deductions from wages, the payment of Federal minimum wage and
payment of overtime.
(f) Job opportunity is full-time. The job opportunity is a full-time
temporary position, calculated to be at least 35 hours per work week.
(g) No recent or future layoffs. The employer has not laid off and
will not lay off any similarly employed U.S. worker in the occupation
that is the subject of the Application for Temporary Employment
Certification in the area of intended employment except for lawful, job-
related reasons within 60 days of the date of need, or if the employer
has laid off such workers, it has offered the job opportunity that is
the subject of the Application for Temporary Employment Certification to
those laid-off U.S. worker(s) and the U.S. worker(s) refused the job
opportunity, was rejected for the job opportunity for lawful, job-
related reasons, or was hired. A layoff for lawful, job-related reasons
such as lack of work or the end of the growing season is permissible if
all H-2A workers are laid off before any U.S. worker in corresponding
employment.
(h) No unfair treatment. The employer has not and will not
intimidate, threaten, restrain, coerce, blacklist, discharge or in any
manner discriminate against, and has not and will not cause any person
to intimidate, threaten, restrain, coerce, blacklist, or in any manner
discriminate against, any person who has:
(1) Filed a complaint under or related to 8 U.S.C. 1188, or this
subpart or any other Department regulation promulgated thereunder;
(2) Instituted or caused to be instituted any proceeding under or
related to 8 U.S.C. 1188 or this subpart or any other Department
regulation promulgated thereunder;
(3) Testified or is about to testify in any proceeding under or
related to 8 U.S.C. 1188 or this subpart or any other Department
regulation promulgated thereunder;
[[Page 362]]
(4) Consulted with an employee of a legal assistance program or an
attorney on matters related to 8 U.S.C. 1188 or this subpart or any
other Department regulation promulgated thereunder; or
(5) Exercised or asserted on behalf of himself/herself or others any
right or protection afforded by 8 U.S.C. 1188 or this subpart or any
other Department regulation promulgated thereunder.
(i) Notify workers of duty to leave United States. (1) The employer
must inform H-2A workers of the requirement that they leave the U.S. at
the end of the period certified by the Department or separation from the
employer, whichever is earlier, as required under paragraph (i)(2) of
this section, unless the H-2A worker is being sponsored by another
subsequent H-2A employer.
(2) As defined further in DHS regulations, a temporary labor
certification limits the validity period of an H-2A petition, and
therefore, the authorized period of stay for an H-2A worker. See 8 CFR
214.2(h)(5)(vii) A foreign worker may not remain beyond his or her
authorized period of stay, as determined by DHS, nor beyond separation
from employment prior to completion of the H-2A contract, absent an
extension or change of such worker's status under DHS regulations. See 8
CFR 214.2(h)(5)(viii)(B).
(j) Comply with the prohibition against employees paying fees. The
employer and its agents have not sought or received payment of any kind
from any employee subject to 8 U.S.C. 1188 for any activity related to
obtaining H-2A labor certification, including payment of the employer's
attorneys' fees, application fees, or recruitment costs. For purposes of
this paragraph, payment includes, but is not limited to, monetary
payments, wage concessions (including deductions from wages, salary, or
benefits), kickbacks, bribes, tributes, in kind payments, and free
labor. This provision does not prohibit employers or their agents from
receiving reimbursement for costs that are the responsibility and
primarily for the benefit of the worker, such as government-required
passport fees.
(k) Contracts with third parties comply with prohibitions. The
employer has contractually forbidden any foreign labor contractor or
recruiter (or any agent of such foreign labor contractor or recruiter)
whom the employer engages, either directly or indirectly, in
international recruitment of H-2A workers to seek or receive payments or
other compensation from prospective employees. This documentation is to
be made available upon request by the CO or another Federal party.
(l) Notice of worker rights. The employer must post and maintain in
a conspicuous location at the place of employment, a poster provided by
the Secretary in English, and, to the extent necessary, any language
common to a significant portion of the workers if they are not fluent in
English, which sets out the rights and protections for workers employed
pursuant to 8 U.S.C. 1188.
Processing of Applications for Temporary Employment Certification
Sec. 655.140 Review of applications.
(a) NPC review. The CO will promptly review the Application for
Temporary Employment Certification and job order for compliance with all
applicable program requirements, including compliance with the
requirements set forth in this subpart.
(b) Mailing and postmark requirements. Any notice or request sent by
the CO(s) to an employer requiring a response will be sent using the
provided address via traditional methods to assure next day delivery.
The employer's response to such a notice or request must be filed using
traditional methods to assure next day delivery and be sent by the date
due or the next business day if the due date falls on a Sunday or
Federal Holiday.
Sec. 655.141 Notice of deficiency.
(a) Notification timeline. If the CO determines the Application for
Temporary Employment Certification or job order are incomplete, contain
errors or inaccuracies, or do not meet the requirements set forth in
this subpart, the CO will notify the employer within 7 calendar days of
the CO's receipt of the Application for Temporary Employment
Certification. A copy of this notification will be sent to the SWA
serving the area of intended employment.
[[Page 363]]
(b) Notice content. The notice will:
(1) State the reason(s) why the Application for Temporary Employment
Certification or job order fails to meet the criteria for acceptance;
(2) Offer the employer an opportunity to submit a modified
Application for Temporary Employment Certification or job order within 5
business days from date of receipt stating the modification that is
needed for the CO to issue the Notice of Acceptance;
(3) Except as provided for under the expedited review or de novo
administrative hearing provisions of this section, state that the CO's
determination on whether to grant or deny the Application for Temporary
Employment Certification will be made no later than 30 calendar days
before the date of need, provided that the employer submits the
requested modification to the Application for Temporary Employment
Certification within 5 business days and in a manner specified by the
CO;
(4) Offer the employer an opportunity to request an expedited
administrative review or a de novo administrative hearing before an ALJ
of the Notice of Deficiency. The notice will state that in order to
obtain such a review or hearing, the employer, within 5 business days of
the receipt of the notice, must file by facsimile or other means
normally assuring next day delivery a written request to the Chief ALJ
of DOL and simultaneously serve a copy on the CO. The notice will also
state that the employer may submit any legal arguments that the employer
believes will rebut the basis of the CO's action; and
(5) State that if the employer does not comply with the requirements
of Sec. 655.142 or request an expedited administrative review or a de
novo hearing before an ALJ within 5 business days the CO will deny the
Application for Temporary Employment Certification. That denial is final
cannot be appealed and the Department will not further consider that
Application for Temporary Employment Certification.
(c) Appeal from Notice of Deficiency. The employer may timely
request an expedited administrative review or de novo hearing before an
ALJ by following the procedures set forth in Sec. 655.171.
Sec. 655.142 Submission of modified applications.
(a) Submission requirements and certification delays. If the
employer chooses to submit a modified Application for Temporary
Employment Certification, the CO's Final Determination will be postponed
by 1 calendar day for each day that passes beyond the 5 business-day
period allowed under Sec. 655.141(b) to submit a modified Application
for Temporary Employment Certification, up to maximum of 5 days. The
Application for Temporary Employment Certification will be deemed
abandoned if the employer does not submit a modified Application for
Temporary Employment Certification within 12 calendar days after the
notice of deficiency was issued.
(b) Provisions for denial of modified Application for Temporary
Employment Certification. If the modified Application for Temporary
Employment Certification is not approved, the CO will deny the
Application for Temporary Employment Certification in accordance with
the labor certification determination provisions in Sec. 655.164.
(c) Appeal from denial of modified Application for Temporary
Employment Certification. The procedures for appealing a denial of a
modified Application for Temporary Employment Certification are the same
as for a non-modified Application for Temporary Employment Certification
as long as the employer timely requests an expedited administrative
review or de novo hearing before an ALJ by following the procedures set
forth in Sec. 655.171.
Sec. 655.143 Notice of acceptance.
(a) Notification timeline. When the CO determines the Application
for Temporary Employment Certification and job order are complete and
meet the requirements set forth in this subpart, the CO will notify the
employer within 7 calendar days of the CO's receipt of the Application
for Temporary Employment Certification. A copy will be sent to the SWA
serving the area of intended employment.
(b) Notice content. The notice must:
(1) Authorize conditional access to the interstate clearance system
and direct the SWA to circulate a copy of the job order to other such
States the CO
[[Page 364]]
determines to be potential sources of U.S. workers;
(2) Direct the employer to engage in positive recruitment of U.S.
workers in a manner consistent with Sec. 655.154 and to submit a report
of its positive recruitment efforts as specified in Sec. 655.156;
(3) State that positive recruitment is in addition to and will occur
during the period of time that the job order is being circulated by the
SWA(s) for interstate clearance under Sec. 655.150 of this subpart and
will terminate on the actual date on which the H-2A workers depart for
the place of work, or 3 calendar days prior to the first date the
employer requires the services of the H-2A workers, whichever occurs
first; and
(4) State that the CO will make a determination either to grant or
deny the Application for Temporary Employment Certification no later
than 30 calendar days before the date of need, except as provided for
under Sec. 655.144 for modified Applications for Temporary Employment
Certification.
Sec. 655.144 Electronic job registry.
(a) Location of and placement in the electronic job registry. Upon
acceptance of the Application for Temporary Employment Certification
under Sec. 655.143, the CO will promptly place for public examination a
copy of the job order on an electronic job registry maintained by the
Department, including any required modifications approved by the CO, as
specified in Sec. 655.142. This procedure will be implemented once the
Department initiates operation of the registry.
(b) Length of posting on electronic job registry. Unless otherwise
provided, the Department will keep the job order posted on the
Electronic Job Registry until the end of 50 percent of the contract
period as set forth in Sec. 655.135(d).
Sec. 655.145 Amendments to applications for temporary employment
certification.
(a) Increases in number of workers. The Application for Temporary
Employment Certification may be amended at any time before the CO's
certification determination to increase the number of workers requested
in the initial Application for Temporary Employment Certification by not
more than 20 percent (50 percent for employers requesting less than 10
workers) without requiring an additional recruitment period for U.S.
workers. Requests for increases above the percent prescribed, without
additional recruitment, may be approved by the CO only when the employer
demonstrates that the need for additional workers could not have been
foreseen, and the crops or commodities will be in jeopardy prior to the
expiration of an additional recruitment period. All requests for
increasing the number of workers must be made in writing.
(b) Minor changes to the period of employment. The Application for
Temporary Employment Certification may be amended to make minor changes
in the total period of employment. Changes will not be effective until
submitted in writing and approved by the CO. In considering whether to
approve the request, the CO will review the reason(s) for the request,
determine whether the reason(s) are on the whole justified, and take
into account the effect any change(s) would have on the adequacy of the
underlying test of the domestic labor market for the job opportunity. An
employer must demonstrate that the change to the period of employment
could not have been foreseen, and the crops or commodities will be in
jeopardy prior to the expiration of an additional recruitment period. If
the request is for a delay in the start date and is made after workers
have departed for the employer's place of work, the CO may only approve
the change if the employer includes with the request a written assurance
signed and dated by the employer that all workers who are already
traveling to the job site will be provided housing and subsistence,
without cost to the workers, until work commences. Upon acceptance of an
amendment, the CO will submit to the SWA any necessary modification to
the job order.
Post-Acceptance Requirements
Sec. 655.150 Interstate clearance of job order.
(a) SWA posts in interstate clearance system. The SWA must promptly
place
[[Page 365]]
the job order in interstate clearance to all States designated by the
CO. At a minimum, the CO will instruct the SWA to transmit a copy of its
active job order to all States listed in the job order as anticipated
worksites covering the area of intended employment.
(b) Duration of posting. Each of the SWAs to which the job order was
transmitted must keep the job order on its active file until 50 percent
of the contract term has elapsed, and must refer each qualified U.S.
worker who applies (or on whose behalf an application is made) for the
job opportunity.
Sec. 655.151 Newspaper advertisements.
(a) The employer must place an advertisement (in a language other
than English, where the CO determines appropriate) on 2 separate days,
which may be consecutive, one of which must be a Sunday (except as
provided in paragraph (b) of this section), in a newspaper of general
circulation serving the area of intended employment and is appropriate
to the occupation and the workers likely to apply for the job
opportunity. Newspaper advertisements must satisfy the requirements set
forth in Sec. 655.152.
(b) If the job opportunity is located in a rural area that does not
have a newspaper with a Sunday edition, the CO may direct the employer,
in place of a Sunday edition, to advertise in the regularly published
daily edition with the widest circulation in the area of intended
employment.
Sec. 655.152 Advertising requirements.
All advertising conducted to satisfy the required recruitment
activities under Sec. 655.151 must meet the requirements set forth in
this section and must contain terms and conditions of employment which
are not less favorable than those offered to the H-2A workers. All
advertising must contain the following information:
(a) The employer's name, or in the event that a master application
will be filed by an association, a statement indicating that the name
and location of each member of the association can be obtained from the
SWA of the State in which the advertisement is run;
(b) The geographic area of intended employment with enough
specificity to apprise applicants of any travel requirements and where
applicants will likely have to reside to perform the services or labor;
(c) A description of the job opportunity for which certification is
sought with sufficient information to apprise U.S. workers of services
or labor to be performed and the anticipated start and end dates of
employment of the job opportunity;
(d) The wage offer, or in the event that there are multiple wage
offers (such as where a master application will be filed by an
association and/or where there are multiple crop activities for a single
employer), the range of applicable wage offers and, where a master
application will be filed by an association, a statement indicating that
the rate(s) applicable to each employer can be obtained from the SWA of
the State in which the advertisement is run;
(e) The three-fourths guarantee specified in Sec. 655.122(i);
(f) If applicable, a statement that work tools, supplies, and
equipment will be provided at no cost to the worker;
(g) A statement that housing will be made available at no cost to
workers, including U.S. workers who cannot reasonably return to their
permanent residence at the end of each working day;
(h) A statement that transportation and subsistence expenses to the
worksite will be provided by the employer or paid by the employer upon
completion of 50 percent of the work contract, or earlier, if
appropriate;
(i) A statement that the position is temporary and a specification
of the total number of job openings the employer intends to fill;
(j) A statement directing applicants to apply for the job
opportunity at the nearest office of the SWA in the State in which the
advertisement appeared. Employers who wish to require interviews must
conduct those interviews by phone or provide a procedure for the
interviews to be conducted in the location where the worker is being
recruited at little or no cost to the worker. Employers cannot provide
potential H-2A workers more favorable treatment with respect to the
requirement and conduct of interviews; and
[[Page 366]]
(k) Contact information for the applicable SWA and, if available,
the job order number.
Sec. 655.153 Contact with former U.S. employees.
The employer must contact, by mail or other effective means, its
former U.S. workers (except those who were dismissed for cause or who
abandoned the worksite) employed by the employer in the occupation at
the place of employment during the previous year and solicit their
return to the job. This contact must occur during the period of time
that the job order is being circulated by the SWA(s) for interstate
clearance and documentation sufficient to prove contact must be
maintained in the event of an audit.
Sec. 655.154 Additional positive recruitment.
(a) Where to conduct additional positive recruitment. The employer
must conduct positive recruitment within a multistate region of
traditional or expected labor supply where the CO finds that there are a
significant number of qualified U.S. workers who, if recruited, would be
willing to make themselves available for work at the time and place
needed.
(b) Additional requirements should be comparable to non-H-2A
employers in the area. The CO will ensure that the effort, including the
location(s) and method(s) of the positive recruitment required of the
potential H-2A employer must be no less than the normal recruitment
efforts of non-H-2A agricultural employers of comparable or smaller size
in the area of intended employment, and the kind and degree of
recruitment efforts which the potential H-2A employer made to obtain
foreign workers.
(c) Nature of the additional positive recruitment. The CO will
describe the precise nature of the additional positive recruitment but
the employer will not be required to conduct positive recruitment in
more than three States for each area of intended employment listed on
the employer's application.
(d) Proof of recruitment. The CO will specify the documentation or
other supporting evidence that must be maintained by the employer as
proof that the positive recruitment requirements were met.
Sec. 655.155 Referrals of U.S. workers.
SWAs may only refer for employment individuals who have been
apprised of all the material terms and conditions of employment and have
indicated, by accepting referral to the job opportunity, that he or she
is qualified, able, willing, and available for employment.
Sec. 655.156 Recruitment report.
(a) Requirements of a recruitment report. The employer must prepare,
sign, and date a written recruitment report. The recruitment report must
be submitted on a date specified by the CO in the Notice of Acceptance
set forth in Sec. 655.141 and contain the following information:
(1) Identify the name of each recruitment source;
(2) State the name and contact information of each U.S. worker who
applied or was referred to the job opportunity up to the date of the
preparation of the recruitment report, and the disposition of each
worker;
(3) Confirm that former U.S. employees were contacted and by what
means; and
(4) If applicable, for each U.S. worker who applied for the position
but was not hired, explain the lawful job-related reason(s) for not
hiring the U.S. worker.
(b) Duty to update recruitment report. The employer must continue to
maintain the recruitment report throughout the recruitment period
including the 50 percent period. The updated report is not to be
automatically submitted to the Department, but must be made available in
the event of a post-certification audit or upon request by authorized
representatives of the Secretary.
Sec. 655.157 Withholding of U.S. workers prohibited.
(a) Filing a complaint. Any employer who has reason to believe that
a person or entity has willfully and knowingly withheld U.S. workers
prior to the arrival at the worksite of H-2A workers in order to force
the hiring of U.S. workers during the recruitment period, as set forth
in Sec. 655.135(d), may submit a written complaint to the CO. The
[[Page 367]]
complaint must clearly identify the person or entity who the employer
believes has withheld the U.S. workers, and must specify sufficient
facts to support the allegation (e.g., dates, places, numbers and names
of U.S. workers) which will permit an investigation to be conducted by
the CO.
(b) Duty to investigate. Upon receipt, the CO must immediately
investigate the complaint. The investigation must include interviews
with the employer who has submitted the complaint, the person or entity
named as responsible for withholding the U.S. workers, and the
individual U.S. workers whose availability has purportedly been
withheld.
(c) Duty to suspend the recruitment period. Where the CO determines,
after conducting the interviews required by paragraph (b) of this
section, that the employer's complaint is valid and justified, the CO
will immediately suspend the application of the 50 percent rule of the
recruitment period, as set forth in Sec. 655.135(d), to the employer.
The CO's determination is the final decision of the Secretary.
Sec. 655.158 Duration of positive recruitment.
Except as otherwise noted, the obligation to engage in positive
recruitment described in Sec. Sec. 655.150 through 655.154 shall
terminate on the date H-2A workers depart for the employer's place of
work. Unless the SWA is informed in writing of a different date, the
date that is the third day preceding the employer's first date of need
will be determined to be the date the H-2A workers departed for the
employer's place of business.
Labor Certification Determinations
Sec. 655.160 Determinations.
Except as otherwise noted in this section, the CO will make a
determination either to grant or deny the Application for Temporary
Employment Certification no later than 30 calendar days before the date
of need identified in the Application for Temporary Employment
Certification. An Application for Temporary Employment Certification
that is modified under Sec. 655.142 or that otherwise does not meet the
requirements for certification in this subpart is not subject to the 30-
day timeframe for certification.
Sec. 655.161 Criteria for certification.
(a) The criteria for certification include whether the employer has
established the need for the agricultural services or labor to be
performed on a temporary or seasonal basis; complied with the
requirements of parts 653 and 654 of this chapter; complied with all of
this subpart, including but not limited to the timeliness requirements
in Sec. 655.130(b); complied with the offered wage rate criteria in
Sec. 655.120; made all the assurances in Sec. 655.135; and met all the
recruitment obligations required by Sec. 655.121 and Sec. 655.152.
(b) In making a determination as to whether there are insufficient
U.S. workers to fill the employer's job opportunity, the CO will count
as available any U.S. worker referred by the SWA or any U.S. worker who
applied (or on whose behalf an application is made) directly to the
employer, but who was rejected by the employer for other than a lawful
job-related reason or who has not been provided with a lawful job-
related reason for rejection by the employer.
Sec. 655.162 Approved certification.
If temporary labor certification is granted, the CO will send the
certified Application for Temporary Employment Certification and a Final
Determination letter to the employer by means normally assuring next-day
delivery and a copy, if appropriate, to the employer's agent or
attorney.
Sec. 655.163 Certification fee.
A determination by the CO to grant an Application for Temporary
Employment Certification in whole or in part will include a bill for the
required certification fees. Each employer of H-2A workers under the
Application for Temporary Employment Certification (except joint
employer associations, which may not be assessed a fee in addition to
the fees assessed to the members of the association) must pay in a
timely manner a non-refundable fee upon issuance of the certification
granting the Application for Temporary Employment Certification (in
whole or in part), as follows:
[[Page 368]]
(a) Amount. The Application for Temporary Employment Certification
fee for each employer receiving a temporary agricultural labor
certification is $100 plus $10 for each H-2A worker certified under the
Application for Temporary Employment Certification, provided that the
fee to an employer for each temporary agricultural labor certification
received will be no greater than $1,000. There is no additional fee to
the association filing the Application for Temporary Employment
Certification. The fees must be paid by check or money order made
payable to United States Department of Labor. In the case of an
agricultural association acting as a joint employer applying on behalf
of its H-2A employer members, the aggregate fees for all employers of H-
2A workers under the Application for Temporary Employment Certification
must be paid by one check or money order.
(b) Timeliness. Fees must be received by the CO no more than 30 days
after the date of the certification. Non-payment or untimely payment may
be considered a substantial violation subject to the procedures in Sec.
655.182.
Sec. 655.164 Denied certification.
If temporary labor certification is denied, the Final Determination
letter will be sent to the employer by means normally assuring next-day
delivery and a copy, if appropriate, to the employer's agent or
attorney. The Final Determination Letter will:
(a) State the reason(s) certification is denied;
(b) Offer the applicant an opportunity to request an expedited
administrative review, or a de novo administrative hearing before an
ALJ, of the denial. The notice must state that in order to obtain such a
review or hearing, the employer, within 7 calendar days of the date of
the notice, must file by facsimile (fax), or other means normally
assuring next day delivery, a written request to the Chief ALJ of DOL
(giving the address) and simultaneously serve a copy on the CO. The
notice will also state that the employer may submit any legal arguments
which the employer believes will rebut the basis of the CO's action; and
(c) State that if the employer does not request an expedited
administrative judicial review or a de novo hearing before an ALJ within
the 7 calendar days, the denial is final and the Department will not
further consider that Application for Temporary Employment
Certification.
Sec. 655.165 Partial certification.
The CO may issue a partial certification, reducing either the period
of need or the number of H-2A workers being requested or both for
certification, based upon information the CO receives during the course
of processing the Application for Temporary Employment Certification, an
audit, or otherwise. The number of workers certified will be reduced by
one for each referred U.S. worker who is able, willing, and qualified,
and who will be available at the time and place needed and has not been
rejected for lawful job-related reasons, to perform the services or
labor. If a partial labor certification is issued, the Final
Determination letter will:
(a) State the reason(s) why either the period of need and/or the
number of H-2A workers requested has been reduced;
(b) Offer the applicant an opportunity to request an expedited
administrative review, or a de novo administrative hearing before an
ALJ, of the decision. The notice will state that in order to obtain such
a review or hearing, the employer, within 7 calendar days of the date of
the notice, will file by facsimile or other means normally assuring next
day delivery a written request to the Chief ALJ of DOL (giving the
address) and simultaneously serve a copy on the CO. The notice will also
state that the employer may submit any legal arguments which the
employer believes will rebut the basis of the CO's action; and
(c) State that if the employer does not request an expedited
administrative judicial review or a de novo hearing before an ALJ within
the 7 calendar days, the partial certification is final and the
Department will not further consider that Application for Temporary
Employment Certification.
[[Page 369]]
Sec. 655.166 Requests for determinations based on nonavailability of
U.S. workers.
(a) Standards for requests. If a temporary labor certification has
been partially granted or denied based on the CO's determination that
able, willing, available, eligible, and qualified U.S. workers are
available, and, on or after 30 calendar days before the date of need,
some or all of those U.S. workers are, in fact, no longer able, willing,
eligible, qualified, or available, the employer may request a new
temporary labor certification determination from the CO. Prior to making
a new determination the CO will promptly ascertain (which may be through
the SWA or other sources of information on U.S. worker availability)
whether specific able, willing, eligible and qualified replacement U.S.
workers are available or can be reasonably expected to be present at the
employer's establishment within 72 hours from the date the employer's
request was received. The CO will expeditiously, but in no case later
than 72 hours after the time a complete request (including the signed
statement included in paragraph (b) of this section) is received, make a
determination on the request. An employer may appeal a denial of such a
determination in accordance with the procedures contained in Sec.
655.171.
(b) Unavailability of U.S. workers. The employer's request for a new
determination must be made directly to the CO by telephone or electronic
mail, and must be confirmed by the employer in writing as required by
this paragraph. If the employer telephonically or via electronic mail
requests the new determination by asserting solely that U.S. workers
have become unavailable, the employer must submit to the CO a signed
statement confirming such assertion. If such signed statement is not
received by the CO within 72 hours of the CO's receipt of the request
for a new determination, the CO will deny the request.
(c) Notification of determination. If the CO determines that U.S.
workers have become unavailable and cannot identify sufficient available
U.S. workers who are able, willing, eligible, and qualified or who are
likely to become available, the CO will grant the employer's request for
a new determination. However, this does not preclude an employer from
submitting subsequent requests for new determinations, if warranted,
based on subsequent facts concerning purported nonavailability of U.S.
workers or referred workers not being eligible workers or not able,
willing, or qualified because of lawful job-related reasons.
Sec. 655.167 Document retention requirements.
(a) Entities required to retain documents. All employers filing an
Application for Temporary Employment Certification requesting H-2A
agricultural workers under this subpart are required to retain the
documents and records proving compliance with this subpart.
(b) Period of required retention. Records and documents must be
retained for a period of 3 years from the date of certification of the
Application for Temporary Employment Certification or from the date of
determination if the Application for Temporary Employment Certification
is denied or withdrawn.
(c) Documents and records to be retained by all applicants. (1)
Proof of recruitment efforts, including:
(i) Job order placement as specified in Sec. 655.121;
(ii) Advertising as specified in Sec. 655.152, or, if used,
professional, trade, or ethnic publications;
(iii) Contact with former U.S. workers as specified in Sec.
655.153; or
(iv) Additional positive recruitment efforts (as specified in Sec.
655.154).
(2) Substantiation of information submitted in the recruitment
report prepared in accordance with Sec. 655.156, such as evidence of
nonapplicability of contact of former employees as specified in Sec.
655.153.
(3) The final recruitment report and any supporting resumes and
contact information as specified in Sec. 655.156(b).
(4) Proof of workers' compensation insurance or State law coverage
as specified in Sec. 655.122(e).
(5) Records of each worker's earnings as specified in Sec.
655.122(j).
[[Page 370]]
(6) The work contract or a copy of the Application for Temporary
Employment Certification as defined in 29 CFR 501.10 and specified in
Sec. 655.122(q).
(d) Additional retention requirement for associations filing
Application for Temporary Employment Certification. In addition to the
documents specified in paragraph (c) above, Associations must retain
documentation substantiating their status as an employer or agent, as
specified in Sec. 655.131.
Post Certification
Sec. 655.170 Extensions.
An employer may apply for extensions of the period of employment in
the following circumstances.
(a) Short-term extension. Employers seeking extensions of 2 weeks or
less of the certified Application for Temporary Employment Certification
must apply directly to DHS for approval. If granted, the Application for
Temporary Employment Certification will be deemed extended for such
period as is approved by DHS.
(b) Long-term extension. Employers seeking extensions of more than 2
weeks may apply to the CO. Such requests must be related to weather
conditions or other factors beyond the control of the employer (which
may include unforeseen changes in market conditions). Such requests must
be supported in writing, with documentation showing that the extension
is needed and that the need could not have been reasonably foreseen by
the employer. The CO will notify the employer of the decision in writing
if time allows, or will otherwise notify the employer of the decision.
The CO will not grant an extension where the total work contract period
under that Application for Temporary Employment Certification and
extensions would be 12 months or more, except in extraordinary
circumstances. The employer may appeal a denial of a request for an
extension by following the procedures in Sec. 655.171.
(c) Disclosure. The employer must provide to the workers a copy of
any approved extension in accordance with Sec. 655.122(q), as soon as
practicable.
Sec. 655.171 Appeals.
Where authorized in this subpart, employers may request an
administrative review or de novo hearing before an ALJ of a decision by
the CO. In such cases, the CO will send a copy of the OFLC
administrative file to the Chief ALJ by means normally assuring next-day
delivery. The Chief ALJ will immediately assign an ALJ (which may be a
panel of such persons designated by the Chief ALJ from the Board of
Alien Labor Certification Appeals (BALCA)).
(a) Administrative review. Where the employer has requested
administrative review, within 5 business days after receipt of the ETA
administrative file the ALJ will, on the basis of the written record and
after due consideration of any written submissions (which may not
include new evidence) from the parties involved or amici curiae, either
affirm, reverse, or modify the CO's decision, or remand to the CO for
further action. The decision of the ALJ must specify the reasons for the
action taken and must be immediately provided to the employer, the CO,
the OFLC Administrator and DHS by means normally assuring next-day
delivery. The ALJ's decision is the final decision of the Secretary.
(b) De novo hearing--(1) Conduct of hearing. Where the employer has
requested a de novo hearing the procedures in 29 CFR part 18 apply to
such hearings, except that:
(i) The appeal will not be considered to be a complaint to which an
answer is required;
(ii) The ALJ will ensure that the hearing is scheduled to take place
within 5 business days after the ALJ's receipt of the OFLC
administrative file, if the employer so requests, and will allow for the
introduction of new evidence; and
(iii) The ALJ's decision must be rendered within 10 calendar days
after the hearing.
(2) Decision. After a de novo hearing, the ALJ must affirm, reverse,
or modify the CO's determination, or remand to the CO for further
action. The decision of the ALJ must specify the reasons for the action
taken and must be immediately provided to the employer, CO, OFLC
Administrator and DHS by
[[Page 371]]
means normally assuring next-day delivery. The ALJ's decision is the
final decision of the Secretary.
Sec. 655.172 Withdrawal of job order and application for temporary
employment certification.
(a) Employers may withdraw a job order from intrastate posting if
the employer no longer plans to file an Application for Temporary
Employment Certification. However, a withdrawal of a job order does not
nullify existing obligations to those workers recruited in connection
with the placement of a job order pursuant to this subpart or the filing
of an Application for Temporary Employment Certification.
(b) Employers may withdraw an Application for Temporary Employment
Certification once it has been formally accepted by the NPC. However,
the employer is still obligated to comply with the terms and conditions
of employment contained in the Application for Temporary Employment
Certification with respect to workers recruited in connection with that
application.
Sec. 655.173 Setting meal charges; petition for higher meal charges.
(a) Meal charges. Until a new amount is set under this paragraph, an
employer may charge workers up to $10.64 for providing them with three
meals per day. The maximum charge allowed by this paragraph (a) will be
changed annually by the same percentage as the 12 month percentage
change for the Consumer Price Index for all Urban Consumers for Food
between December of the year just concluded and December of the year
prior to that. The annual adjustments will be effective on the date of
their publication by the OFLC Administrator as a Notice in the Federal
Register. When a charge or deduction for the cost of meals would bring
the employee's wage below the minimum wage set by the FLSA at 29 U.S.C.
206 the charge or deduction must meet the requirements of 29 U.S.C.
203(m) of the FLSA, including the recordkeeping requirements found at 29
CFR 516.27.
(b) Filing petitions for higher meal charges. The employer may file
a petition with the CO to charge more than the applicable amount for
meal charges if the employer justifies the charges and submits to the CO
the documentation required by paragraph (b)(1) of this section.
(1) Documentation submitted must include the cost of goods and
services directly related to the preparation and serving of meals, the
number of workers fed, the number of meals served and the number of days
meals were provided. The cost of the following items may be included:
Food; kitchen supplies other than food, such as lunch bags and soap;
labor costs that have a direct relation to food service operations, such
as wages of cooks and dining hall supervisors; fuel, water, electricity,
and other utilities used for the food service operation; and other costs
directly related to the food service operation. Charges for
transportation, depreciation, overhead and similar charges may not be
included. Receipts and other cost records for a representative pay
period must be retained and must be available for inspection by the CO
for a period of 1 year.
(2) The employer may begin charging the higher rate upon receipt of
a favorable decision from the CO unless the CO sets a later effective
date in the decision.
(c) Appeal rights. In the event the employer's petition for a higher
meal charge is denied in whole or in part, the employer may appeal the
denial. Appeals will be filed with the Chief ALJ, pursuant to Sec.
655.171.
Sec. 655.174 Public disclosure.
The Department will maintain an electronic file accessible to the
public with information on all employers applying for temporary
agricultural labor certifications. The database will include such
information as the number of workers requested, the date filed, the date
decided, and the final disposition.
Integrity Measures
Sec. 655.180 Audit.
The CO may conduct audits of applications for which certifications
have been granted.
(a) Discretion. The applications selected for audit will be chosen
within the sole discretion of the CO.
[[Page 372]]
(b) Audit letter. Where an application is selected for audit, the CO
will issue an audit letter to the employer and a copy, if appropriate,
to the employer's agent or attorney. The audit letter will:
(1) State the documentation that must be submitted by the employer;
(2) Specify a date no more than 30 days from the date of the audit
letter by which the required documentation must be received by the CO;
and
(3) Advise that failure to comply with the audit process may result
in the revocation of the certification or program debarment.
(c) Supplemental information request. During the course of the audit
examination, the CO may request supplemental information and/or
documentation from the employer in order to complete the audit.
(d) Potential referrals. In addition to steps in this subpart, the
CO may determine to provide the audit findings and underlying
documentation to DHS or another appropriate enforcement agency. The CO
will refer any findings that an employer discouraged an eligible U.S.
worker from applying, or failed to hire, discharged, or otherwise
discriminated against an eligible U.S. worker, to the Department of
Justice, Civil Rights Division, Office of Special Counsel for Unfair
Immigration Related Employment Practices.
Sec. 655.181 Revocation.
(a) Basis for DOL revocation. The OFLC Administrator may revoke a
temporary agricultural labor certification approved under this subpart,
if the OFLC Administrator finds:
(1) The issuance of the temporary agricultural labor certification
was not justified due to fraud or misrepresentation in the application
process;
(2) The employer substantially violated a material term or condition
of the approved temporary agricultural labor certification, as defined
in Sec. 655.182;
(3) The employer failed to cooperate with a DOL investigation or
with a DOL official performing an investigation, inspection, audit (as
discussed in Sec. 655.180), or law enforcement function under 8 U.S.C.
1188, 29 CFR part 501, or this subpart; or
(4) The employer failed to comply with one or more sanctions or
remedies imposed by the WHD, or with one or more decisions or orders of
the Secretary or a court order secured by the Secretary under 8 U.S.C.
1188, 29 CFR part 501, or this subpart.
(b) DOL procedures for revocation. (1) Notice of Revocation. If the
OFLC Administrator makes a determination to revoke an employer's
temporary labor certification, the OFLC Administrator will send to the
employer (and its attorney or agent) a Notice of Revocation. The Notice
will contain a detailed statement of the grounds for the revocation, and
it will inform the employer of its right to submit rebuttal evidence or
to appeal. If the employer does not file rebuttal evidence or an appeal
within 14 days of the date of the Notice of Revocation, the Notice is
the final agency action and will take effect immediately at the end of
the 14-day period.
(2) Rebuttal. The employer may submit evidence to rebut the grounds
stated in the Notice of Revocation within 14 calendar days of the date
the Notice is issued. If rebuttal evidence is timely filed by the
employer, the OFLC Administrator will inform the employer of the OFLC
Administrator's final determination on the revocation within 14 calendar
days of receiving the rebuttal evidence. If the OFLC Administrator
determines that the certification should be revoked, the OFLC
Administrator will inform the employer of its right to appeal according
to the procedures of Sec. 655.171. The employer must file the appeal
within 10 calendar days after the OFLC Administrator's final
determination, or the OFLC Administrator's determination is the final
agency action and will take effect immediately at the end of the 10-day
period.
(3) Appeal. An employer may appeal a Notice of Revocation, or a
final determination of the OFLC Administrator after the review of
rebuttal evidence, according to the appeal procedures of Sec. 655.171.
The ALJ's decision is the final agency action.
(4) Stay. The timely filing of rebuttal evidence or an
administrative appeal will stay the revocation pending the outcome of
those proceedings.
[[Page 373]]
(5) Decision. If the temporary agricultural labor certification is
revoked, the OFLC Administrator will send a copy of the final agency
action of the Secretary to DHS and the Department of State (DOS).
(c) Employer's obligations in the event of revocation. If an
employer's temporary agricultural labor certification is revoked
pursuant to this section, the employer is responsible for:
(1) Reimbursement of actual inbound transportation and subsistence
expenses, as if the worker meets the requirements for payment under
Sec. 655.122(h)(1);
(2) The worker's outbound transportation expenses, as if the worker
meets the requirements for payment under Sec. 655.122(h)(2);
(3) Payment to the worker of the amount due under the three-fourths
guarantee as required by Sec. 655.122(i); and
(4) Any other wages, benefits, and working conditions due or owing
to the worker under this subpart.
Sec. 655.182 Debarment.
(a) Debarment of an employer. The OFLC Administrator may debar an
employer or any successor in interest to that employer from receiving
future labor certifications under this subpart, subject to the time
limits set forth in paragraph (c) of this section, if the OFLC
Administrator finds that the employer substantially violated a material
term or condition of its temporary labor certification, with respect to
H-2A workers, workers in corresponding employment, or U.S. workers
improperly rejected for employment, or improperly laid off or displaced.
(b) Debarment of an agent or attorney. The OFLC Administrator may
debar an agent or attorney from participating in any action under 8
U.S.C. 1188, this subpart, or 29 CFR part 501, if the OFLC Administrator
finds that the agent or attorney participated in an employer's
substantial violation. The OFLC Administrator may not issue future labor
certifications under this subpart to any employer represented by a
debarred agent or attorney, subject to the time limits set forth in
paragraph (c) of this section.
(c) Statute of limitations and period of debarment. (1) The OFLC
Administrator must issue any Notice of Debarment no later than 2 years
after the occurrence of the violation.
(2) No employer, attorney, or agent may be debarred under this
subpart for more than 3 years from the date of the final agency
decision.
(d) Definition of violation. For the purposes of this section, a
violation includes:
(1) One or more acts of commission or omission on the part of the
employer or the employer's agent which involve:
(i) Failure to pay or provide the required wages, benefits or
working conditions to the employer's H-2A workers and/or workers in
corresponding employment;
(ii) Failure, except for lawful, job-related reasons, to offer
employment to qualified U.S. workers who applied for the job opportunity
for which certification was sought;
(iii) Failure to comply with the employer's obligations to recruit
U.S. workers;
(iv) Improper layoff or displacement of U.S. workers or workers in
corresponding employment;
(v) Failure to comply with one or more sanctions or remedies imposed
by the WHD Administrator for violation(s) of contractual or other H-2A
obligations, or with one or more decisions or orders of the Secretary or
a court under 8 U.S.C. 1188, 29 CFR part 501, or this subpart;
(vi) Impeding an investigation of an employer under 8 U.S.C. 1188 or
29 CFR part 501, or an audit under Sec. 655.180 of this subpart;
(vii) Employing an H-2A worker outside the area of intended
employment, in an activity/activities not listed in the job order or
outside the validity period of employment of the job order, including
any approved extension thereof;
(viii) A violation of the requirements of Sec. 655.135(j) or (k);
(ix) A violation of any of the provisions listed in 29 CFR 501.4(a);
or
(x) A single heinous act showing such flagrant disregard for the law
that future compliance with program requirements cannot reasonably be
expected;
[[Page 374]]
(2) The employer's failure to pay a necessary certification fee in a
timely manner;
(3) Fraud involving the Application for Temporary Employment
Certification; or
(4) A material misrepresentation of fact during the application
process.
(e) Determining whether a violation is substantial. In determining
whether a violation is so substantial so as to merit debarment, the
factors the OFLC Administrator may consider include, but are not limited
to, the following:
(1) Previous history of violation(s) of 8 U.S.C. 1188, 29 CFR part
501, or this subpart;
(2) The number of H-2A workers, workers in corresponding employment,
or U.S. workers who were and/or are affected by the violation(s);
(3) The gravity of the violation(s);
(4) Efforts made in good faith to comply with 8 U.S.C. 1188, 29 CFR
part 501, and this subpart;
(5) Explanation from the person charged with the violation(s);
(6) Commitment to future compliance, taking into account the public
health, interest, or safety, and whether the person has previously
violated 8 U.S.C. 1188;
(7) The extent to which the violator achieved a financial gain due
to the violation(s), or the potential financial loss or potential injury
to the worker(s).
(f) Debarment procedure--(1) Notice of Debarment. If the OFLC
Administrator makes a determination to debar an employer, attorney, or
agent, the OFLC Administrator will send the party a Notice of Debarment.
The Notice will state the reason for the debarment finding, including a
detailed explanation of the grounds for and the duration of the
debarment, and it will inform the party subject to the Notice of its
right to submit rebuttal evidence or to request a debarment hearing. If
the party does not file rebuttal evidence or request a hearing within 30
calendar days of the date of the Notice of Debarment, the Notice will be
the final agency action and the debarment will take effect at the end of
the 30-day period.
(2) Rebuttal. The party who received the Notice of Debarment may
choose to submit evidence to rebut the grounds stated in the Notice
within 30 calendar days of the date the Notice is issued. If rebuttal
evidence is timely filed, the OFLC Administrator will issue a final
determination on the debarment within 30 days of receiving the rebuttal
evidence. If the OFLC Administrator determines that the party should be
debarred, the OFLC Administrator will inform the party of its right to
request a debarment hearing according to the procedures of Sec.
655.182(f)(3). The party must request a hearing within 30 calendar days
after the date of the OFLC Administrator's final determination, or the
OFLC Administrator's determination will be the final agency order and
the debarment will take effect at the end of the 30-day period.
(3) Hearing. The recipient of a Notice of Debarment may request a
debarment hearing within 30 calendar days of the date of a Notice of
Debarment or the date of a final determination of the OFLC Administrator
after review of rebuttal evidence submitted pursuant to Sec.
655.182(f)(2). To obtain a debarment hearing, the debarred party must,
within 30 days of the date of the Notice or the final determination,
file a written request to the Chief Administrative Law Judge, United
States Department of Labor, 800 K Street, NW., Suite 400-N, Washington,
DC 20001-8002, and simultaneously serve a copy to the OFLC
Administrator. The debarment will take effect 30 days from the date the
Notice of Debarment or final determination is issued, unless a request
for review is properly filed within 30 days from the issuance of the
Notice of Debarment or final determination. The timely filing of a
request for a hearing stays the debarment pending the outcome of the
hearing. Within 10 days of receipt of the request for a hearing, the
OFLC Administrator will send a certified copy of the ETA case file to
the Chief ALJ by means normally assuring next-day delivery. The Chief
ALJ will immediately assign an ALJ to conduct the hearing. The
procedures in 29 CFR part 18 apply to such hearings, except that the
request for a hearing will not be considered to be a complaint to which
an answer is required.
(4) Decision. After the hearing, the ALJ must affirm, reverse, or
modify the OFLC Administrator's determination. The ALJ will prepare the
decision
[[Page 375]]
within 60 days after completion of the hearing and closing of the
record. The ALJ's decision will be provided immediately to the parties
to the debarment hearing by means normally assuring next-day delivery.
The ALJ's decision is the final agency action, unless either party,
within 30 calendar days of the ALJ's decision, seeks review of the
decision with the Administrative Review Board (ARB).
(5) Review by the ARB. (i) Any party wishing review of the decision
of an ALJ must, within 30 days of the decision of the ALJ, petition the
ARB to review the decision. Copies of the petition must be served on all
parties and on the ALJ. The ARB will decide whether to accept the
petition within 30 days of receipt. If the ARB declines to accept the
petition, or if the ARB does not issue a notice accepting a petition
within 30 days after the receipt of a timely filing of the petition, the
decision of the ALJ will be deemed the final agency action. If a
petition for review is accepted, the decision of the ALJ will be stayed
unless and until the ARB issues an order affirming the decision. The ARB
must serve notice of its decision to accept or not to accept the
petition upon the ALJ and upon all parties to the proceeding.
(ii) Upon receipt of the ARB's notice to accept the petition, the
Office of Administrative Law Judges will promptly forward a copy of the
complete hearing record to the ARB.
(iii) Where the ARB has determined to review such decision and
order, the ARB will notify each party of the issue(s) raised, the form
in which submissions must be made (e.g., briefs or oral argument), and
the time within which such presentation must be submitted.
(6) ARB decision. The ARB's final decision must be issued within 90
days from the notice granting the petition and served upon all parties
and the ALJ. If the ARB fails to provide a decision within 90 days from
the notice granting the petition, the ALJ's decision will be the final
agency decision.
(g) Concurrent debarment jurisdiction. OFLC and the WHD have
concurrent jurisdiction to impose a debarment remedy under this section
or under 29 CFR 501.20. When considering debarment, OFLC and the WHD may
inform one another and may coordinate their activities. A specific
violation for which debarment is imposed will be cited in a single
debarment proceeding. Copies of final debarment decisions will be
forwarded to DHS promptly.
(h) Debarment involving members of associations. If the OFLC
Administrator determines that an individual employer-member of a joint
employer association has committed a substantial violation, the
debarment determination will apply only to that member unless the OFLC
Administrator determines that the association or another association
member participated in the violation, in which case the debarment will
be invoked against the association or other complicit association
member(s) as well.
(i) Debarment involving associations acting as joint employers. If
the OFLC Administrator determines that an association acting as a joint
employer with its members has committed a substantial violation, the
debarment determination will apply only to the association, and will not
be applied to any individual employer-member of the association.
However, if the OFLC Administrator determines that the member
participated in, had knowledge of, or had reason to know of the
violation, the debarment may be invoked against the complicit
association member as well. An association debarred from the H-2A
temporary labor certification program will not be permitted to continue
to file as a joint employer with its members during the period of the
debarment.
(j) Debarment involving associations acting as sole employers. If
the OFLC Administrator determines that an association acting as a sole
employer has committed a substantial violation, the debarment
determination will apply only to the association and any successor in
interest to the debarred association.
Sec. 655.183 Less than substantial violations.
(a) Requirement of special procedures. If the OFLC Administrator
determines that a less than substantial violation has occurred, but the
OFLC Administrator has reason to believe that past
[[Page 376]]
actions on the part of the employer (or agent or attorney) may have had
and may continue to have a chilling or otherwise negative effect on the
recruitment, employment, and retention of U.S. workers, the OFLC
Administrator may require the employer to conform to special procedures
before and after the temporary labor certification determination. These
special procedures may include special on-site positive recruitment and
streamlined interviewing and referral techniques. The special procedures
are designed to enhance U.S. worker recruitment and retention in the
next year as a condition for receiving a temporary agricultural labor
certification. Such requirements will be reasonable; will not require
the employer to offer better wages, working conditions, and benefits
than those specified in Sec. 655.122; and will be no more than deemed
necessary to assure employer compliance with the test of U.S. worker
availability and adverse effect criteria of this subpart.
(b) Notification of required special procedures. The OFLC
Administrator will notify the employer (or agent or attorney) in writing
of the special procedures that will be required in the coming year. The
notification will state the reasons for the imposition of the
requirements, state that the employer's agreement to accept the
conditions will constitute inclusion of them as bona fide conditions and
terms of a temporary agricultural labor certification, and will offer
the employer an opportunity to request an administrative review or a de
novo hearing before an ALJ. If an administrative review or de novo
hearing is requested, the procedures prescribed in Sec. 655.171 will
apply.
(c) Failure to comply with special procedures. If the OFLC
Administrator determines that the employer has failed to comply with
special procedures required pursuant to paragraph (a) of this section,
the OFLC Administrator will send a written notice to the employer,
stating that the employer's otherwise affirmative H-2A certification
determination will be reduced by 25 percent of the total number of H-2A
workers requested (which cannot be more than those requested in the
previous year) for a period of 1 year. Notice of such a reduction in the
number of workers requested will be conveyed to the employer by the OFLC
Administrator in the OFLC Administrator's written certification
determination. The notice will offer the employer an opportunity to
request administrative review or a de novo hearing before an ALJ. If
administrative review or a de novo hearing is requested, the procedures
prescribed in Sec. 655.171 will apply, provided that if the ALJ affirms
the OFLC Administrator's determination that the employer has failed to
comply with special procedures required by paragraph (a) of this
section, the reduction in the number of workers requested will be 25
percent of the total number of H-2A workers requested (which cannot be
more than those requested in the previous year) for a period of 1 year.
Sec. 655.184 Applications involving fraud or willful
misrepresentation.
(a) Referral for investigation. If the CO discovers possible fraud
or willful misrepresentation involving an Application for Temporary
Employment Certification, the CO may refer the matter to the DHS and the
Department's Office of the Inspector General for investigation.
(b) Sanctions. If the WHD, a court or the DHS determines that there
was fraud or willful misrepresentation involving an Application for
Temporary Employment Certification and certification has been granted, a
finding under this paragraph will be cause to revoke the certification.
The finding of fraud or willful misrepresentation may also constitute a
debarrable violation under Sec. 655.182.
Sec. 655.185 Job service complaint system; enforcement of work
contracts.
(a) Filing with DOL. Complaints arising under this subpart must be
filed through the Job Service Complaint System, as described in 20 CFR
part 658, subpart E. Complaints involving allegations of fraud or
misrepresentation must be referred by the SWA to the CO for appropriate
handling and resolution. Complaints that involve worker contracts must
be referred by the SWA to the WHD for appropriate handling and
resolution, as described
[[Page 377]]
in 29 CFR part 501. As part of this process, the WHD may report the
results of its investigation to the OFLC Administrator for consideration
of employer penalties or such other action as may be appropriate.
(b) Filing with the Department of Justice. Complaints alleging that
an employer discouraged an eligible U.S. worker from applying, failed to
hire, discharged, or otherwise discriminated against an eligible U.S.
worker, or discovered violations involving the same, will be referred to
the U.S. Department of Justice, Civil Rights Division, Office of Special
Counsel for Unfair Immigration Related Employment Practices (OSC), in
addition to any activity, investigation, and/or enforcement action taken
by ETA or a SWA. Likewise, if OSC becomes aware of a violation of the
regulations in this subpart, it may provide such information to the
appropriate SWA and the CO.
Subparts C-E [Reserved]
Subpart F_Attestations by Employers Using Alien Crewmembers for
Longshore Activities in U.S. Ports
Source: 60 FR 3956, 3976, Jan. 19, 1995, unless otherwise noted.
General Provisions
Sec. 655.500 Purpose, procedure and applicability of subparts F and G
of this part.
(a) Purpose. (1) Section 258 of the Immigration and Nationality Act
(``Act'') prohibits nonimmigrant alien crewmembers admitted to the
United States on D-visas from performing longshore work at U.S. ports
except in five specific instances:
(i) Where the vessel's country of registration does not prohibit
U.S. crewmembers from performing longshore work in that country's ports
and nationals of a country (or countries) which does not prohibit U.S.
crewmembers from performing longshore work in that country's ports hold
a majority of the ownership interest in the vessel, as determined by the
Secretary of State (henceforth referred to as the ``reciprocity
exception'');
(ii) Where there is in effect in a local port one or more collective
bargaining agreement(s), each covering at least thirty percent of the
longshore workers, and each permitting the activity to be performed
under the terms of such agreement(s);
(iii) Where there is no collective bargaining agreement covering at
least thirty percent of the longshore workers at the particular port and
an attestation with accompanying documentation has been filed with the
Department of Labor attesting that, among other things, the use of alien
crewmembers to perform a particular activity of longshore work is
permitted under the prevailing practice of the particular port
(henceforth referred to as the ``prevailing practice exception'');
(iv) Where the longshore work is to be performed at a particular
location in the State of Alaska and an attestation with accompanying
documentation has been filed with the Department of Labor attesting
that, among other things, before using alien crewmembers to perform the
activity specified in the attestation, the employer will make a bona
fide request for and employ United States longshore workers who are
qualified and available in sufficient numbers from contract stevedoring
companies, labor organizations recognized as exclusive bargaining
representatives of United States longshore workers, and private dock
operators (henceforth referred to as the ``Alaska exception''); or
(v) Where the longshore work involves an automated self-unloading
conveyor belt or vacuum-actuated system on a vessel and the
Administrator has not previously determined that an attestation must be
filed pursuant to this part as a basis for performing those functions
(henceforth referred to as the ``automated vessel exception'').
(2) The term ``longshore work'' does not include the loading or
unloading of hazardous cargo, as determined by the Secretary of
Transportation, for safety and environmental protection. The Department
of Homeland Security (DHS) through the United States Citizenship and
Immigration Services (USCIS), determines whether an employer may use
alien crewmembers for longshore work
[[Page 378]]
at U.S. ports. In those cases where an employer must file an attestation
in order to perform such work, the Department of Labor shall be
responsible for accepting the filing of such attestations. Subpart F of
this part sets forth the procedure for filing attestations with the
Department of Labor for employers proposing to use alien crewmembers for
longshore work at U.S. ports under the prevailing practice exception,
the Alaska exception, and where it has been determined that an
attestation is required under the automated vessel exception listed in
paragraph (a)(1)(iv) of this section. Subpart G of this part sets forth
complaint, investigation, and penalty provisions with respect to such
attestations.
(b) Procedure. (1) Under the prevailing practice exception in sec.
258(c) of the Act, and in those cases where it has been determined that
an attestation is required under the automated vessel exception for
longshore work to be performed at locations other than in the State of
Alaska, the procedure involves filing an attestation with the Department
of Labor attesting that:
(i) The use of alien crewmembers for a particular activity of
longshore work is the prevailing practice at the particular port;
(ii) The use of alien crewmembers is not during a strike or lockout
nor designed to influence the election of a collective bargaining
representative; and
(iii) Notice of the attestation has been provided to the bargaining
representative of longshore workers in the local port, or, where there
is none, notice has been provided to longshore workers employed at the
local port.
(2) Under the automated vessel exception in sec. 258(c) of the Act,
no attestation is required in cases where longshore activity consists of
the use of an automated self-unloading conveyor belt or vacuum-actuated
system on a vessel. The legislation creates a rebuttable presumption
that the use of alien crewmembers for the operation of such automated
systems is the prevailing practice. In order to overcome such
presumption, it must be shown by the preponderance of the evidence
submitted by any interested party, that the use of alien crewmembers for
such activity is not the prevailing practice at the particular port,
that it is during a strike or lockout, or that it is intended or
designed to influence an election of a bargaining representative for
workers in the local port.
(3) Under the Alaska exception in sec. 258(d) of the Act, and in
those cases where it has been determined that an attestation is required
under the automated vessel exception consisting of the use of such
equipment for longshore work to be performed in the State of Alaska, the
procedure involves filing an attestation with the Department of Labor
attesting that:
(i) The employer will make a bona fide request for United States
longshore workers who are qualified and available in sufficient numbers
to perform the activity at the particular time and location from the
parties to whom notice has been provided under paragraph (b)(3)(iv) (B)
and (C) of this section, except that:
(A) Wherever two or more contract stevedoring companies which meet
the requirements of section 32 of the Longshore and Harbor Workers'
Compensation Act (33 U.S.C. 932) have signed a joint collective
bargaining agreement with a single labor organization recognized as an
exclusive bargaining representative of United States longshore workers
within the meaning of the National Labor Relations Act (29 U.S.C. 141 et
seq.), the employer may request longshore workers from only one such
contract stevedoring company, and
(B) A request for longshore workers to an operator of a private dock
may be made only for longshore work to be performed at that dock and
only if the operator meets the requirements of section 32 of the
Longshore and Harbor Workers' Compensation Act (33 U.S.C. 932);
(ii) The employer will employ all United States longshore workers
made available in response to the request made pursuant to paragraph
(b)(3)(i) of this section who are qualified and available in sufficient
numbers and who are needed to perform the longshore activity at the
particular time and location attested to;
[[Page 379]]
(iii) The use of alien crewmembers for such activity is not intended
or designed to influence and election of a bargaining representative for
workers in the State of Alaska; and
(iv) Notice of the attestation has been provided to:
(A) Labor organizations which have been recognized as exclusive
bargaining representatives of United States longshore workers within the
meaning of the National Labor Relations Act (29 U.S.C. 141 et seq.) and
which make available or intend to make available workers to the
particular location where the longshore work is to be performed;
(B) Contract stevedoring companies which employ or intend to employ
United States longshore workers at that location; and
(C) Operators of private docks at which the employer will use
longshore workers.
(c) Applicability. Subparts F and G of this part apply to all
employers who seek to employ alien crewmembers for longshore work at
U.S. ports under the prevailing practice exception, to all employers who
seek to employ alien crewmembers for longshore work at locations in the
State of Alaska under the Alaska exception, to all employers claiming
the automated vessel exception, and to those cases where it has been
determined that an attestation is required under the automated vessel
exception.
[60 FR 3956, 3976, Jan. 19, 1995, as amended at 71 FR 35520, June 21,
2006]
Sec. 655.501 Overview of responsibilities.
This section provides a context for the attestation process, to
facilitate understanding by employers that may seek to employ alien
crewmembers for longshore work under the prevailing practice exception,
under the Alaska exception, and in those cases where an attestation is
necessary under the automated vessel exception.
(a) Department of Labor's responsibilities. The United States
Department of Labor (DOL) administers the attestation process. Within
DOL, the Employment and Training Administration (ETA) shall have
responsibility for setting up and operating the attestation process; the
Employment Standards Administration's Wage and Hour Division shall be
responsible for investigating and resolving any complaints filed
concerning such attestations.
(b) Employer attestation responsibilities. (1) Each employer seeking
to use alien crewmembers for longshore work at a local U.S. port
pursuant to the prevailing practice exception or where an attestation is
required under the automated vessel exception for longshore work to be
performed at locations other than in the State of Alaska shall, as the
first step, submit an attestation on Form ETA 9033, as described in
Sec. 655.510 of this part, to ETA at the address set forth at Sec.
655.510(b) of this part. If ETA accepts the attestation for filing,
pursuant to Sec. 655.510 of this part, ETA shall return the cover form
of the accepted attestation to the employer, and, at the same time,
shall provide notice of the filing to the United States Citizenship and
Immigration Services of the Department of Homeland Security (DHS) office
having jurisdiction over the port where longshore work will be
performed.
(2) Each employer seeking to use alien crewmembers for longshore
work at a particular location in the State of Alaska pursuant to the
Alaska exception or where an attestation is required under the automated
vessel exception for longshore work to be performed at a particular
location in Alaska shall submit, as a first step, an attestation on Form
ETA 9033-A, as described in Sec. 655.533 of this part, to ETA at the
address of the Seattle regional office as set forth at Sec. 655.532 of
this part. The address appears in the instructions to Form ETA 9033-A.
ETA shall return the cover form of the accepted attestation to the
employer, and, at the same time, shall provide notice of the filing to
the DHS office having jurisdiction over the location where longshore
work will be performed.
(c) Complaints. Complaints concerning misrepresentation in the
attestation, failure of the employer to carry out the terms of the
attestation, or complaints that an employer is required to file an
attestation under the automated vessel exception, may be filed with the
Wage and Hour Division, according to the procedures set forth in subpart
G of this part. Complaints of
[[Page 380]]
``misrepresentation'' may include assertions that an employer has
attested to the use of alien crewmembers only for a particular activity
of longshore work and has thereafter used such alien crewmembers for
another activity of longshore work. If the Division determines that the
complaint presents reasonable cause to warrant an investigation, the
Division shall then investigate, and, where appropriate, after an
opportunity for a hearing, assess sanctions and penalties. Subpart G of
this part further provides that interested parties may obtain an
administrative law judge hearing on the Division's determination after
an investigation and may seek the Secretary's review of the
administrative law judge's decision. Subpart G of this part also
provides that a complainant may request that the Wage and Hour
Administrator issue a cease and desist order in the case of either
alleged violation(s) of an attestation or longshore work by alien
crewmember(s) employed by an employer allegedly not qualified for the
claimed automated vessel exception. Upon the receipt of such a request,
the Division shall notify the employer, provide an opportunity for a
response and an informal meeting, and then rule on the request, which
shall be granted if the preponderance of the evidence submitted supports
the complainant's position.
[60 FR 3956, 3976, Jan. 19, 1995, as amended at 71 FR 35521, June 21,
2006]
Sec. 655.502 Definitions.
For the purposes of subparts F and G of this part:
Accepted for filing means that a properly completed attestation on
Form ETA 9033, including accompanying documentation for each of the
requirements in Sec. 655.510 (d) through (f) of this part, or a
properly completed attestation on Form ETA 9033-A, including
accompanying documentation for the requirement in Sec. 655.537 of this
part in the case of an attestation under the Alaska exception, submitted
by the employer or its designated agent or representative has been
received and filed by the Employment and Training Administration of the
Department of Labor (DOL). (Unacceptable attestations under the
prevailing practice exception are described at Sec. 655.510(g)(2) of
this part. Unacceptable attestations under the Alaska exception are
described at Sec. 655.538(b) of this part.)
Act and INA mean the Immigration and Nationality Act, as amended, 8
U.S.C. 1101 et seq.
Activity means any activity relating to loading cargo; unloading
cargo; operation of cargo-related equipment; or handling of mooring
lines on the dock when a vessel is made fast or let go.
Administrative law judge means an official appointed pursuant to 5
U.S.C. 3105.
Administrator means the Administrator of the Wage and Hour Division,
Employment Standards Administration, Department of Labor, or such
authorized representatives as may be designated to perform any of the
functions of the Administrator under subparts F and G of this part.
Administrator, Office of Foreign Labor Certification (OFLC
Administrator) means the primary official of the Office of Foreign Labor
Certification (OFLC Administrator), or the OFLC Administrator's
designee.
Attestation means documents submitted by an employer attesting to
and providing accompanying documentation to show that, under the
prevailing practice exception, the use of alien crewmembers for a
particular activity of longshore work at a particular U.S. port is the
prevailing practice, and is not during a strike or lockout nor intended
to influence an election of a bargaining representative for workers; and
that notice of the attestation has been provided to the bargaining
representative, or, where there is none, to the longshore workers at the
local port. Under the Alaska exception, such documents shall show that,
before using alien crewmen to perform longshore work, the employer will
make bona fide requests for dispatch of United States longshore workers
who are qualified and available in sufficient numbers and that the
employer will employ all such United States longshore workers in
response to such a request for dispatch; that the use of alien
crewmembers is not intended or designed to influence an election of a
bargaining representative for workers in the State of Alaska; and that
notice
[[Page 381]]
of the attestation has been provided to labor organizations recognized
as exclusive bargaining representatives of United States longshore
workers, contract stevedoring companies, and operators of private docks
at which the employer will use longshore workers.
Attesting employer means an employer who has filed an attestation.
Attorney General means the chief official of the U.S. Department of
Justice or the Attorney General's designee.
Automated vessel means a vessel equipped with an automated self-
unloading conveyor belt or vacuum-actuated system which is utilized for
loading or unloading cargo between the vessel and the dock.
Certifying Officer (CO) means a Department of Labor official, or the
CO's designee, who makes determinations about whether or not to grant
applications for labor certification. The National Certifying Officer,
which is the OFLC Administrator, makes such determinations in the
national office of the OFLC.
Chief Administrative Law Judge means the chief official of the
Office of the Administrative Law Judges of the Department of Labor or
the Chief Administrative Law Judge's designee.
Contract stevedoring company means a stevedoring company which is
licensed to do business in the State of Alaska and which meets the
requirements of section 32 of the Longshore and Harbor Workers'
Compensation Act (33 U.S.C. 932).
Crewmember means any nonimmigrant alien admitted to the United
States to perform services under sec. 101(a)(15)(D)(i) of the Act (8
U.S.C. 1101(a)(15)(D)(i)).
Date of filing means the date an attestation is accepted for filing
by ETA.
Department and DOL mean the United States Department of Labor.
Department of Homeland Security (DHS) through the United States
Citizenship and Immigration Services (USCIS) makes the determination
under the Act on whether an employer of alien crewmembers may use such
crewmembers for longshore work at a U.S. port.
Division means the Wage and Hour Division of the Employment
Standards Administration, DOL.
Employer means a person, firm, corporation, or other association or
organization, which suffers or permits, or proposes to suffer or permit,
alien crewmembers to perform longshore work at a port within the U.S.
For purposes of Sec. Sec. 655.530 through 655.541, which govern the
performance of longshore activities by alien crewmembers under the
Alaska exception, ``employer'' includes any agent or representative
designated by the employer.
Employment and Training Administration (ETA) means the agency within
the Department of Labor (DOL) which includes the Office of Foreign Labor
(OFLC).
Employment Standards Administration (ESA) means the agency within
the Department of Labor (DOL) which includes the Wage and Hour Division.
Lockout means a labor dispute involving a work stoppage, wherein an
employer withholds work from its employees in order to gain a concession
from them.
Longshore work means any activity (except safety and environmental
protection work as described in sec. 258(b)(2) of the Act) relating to
the loading or unloading of cargo, the operation of cargo related
equipment (whether or not integral to the vessel), or the handling of
mooring lines on the dock when the vessel is made fast or let go, in the
United States or the coastal waters thereof.
Longshore worker means a U.S. worker who performs longshore work.
Office of Foreign Labor Certification (OFLC) means the
organizational component within the ETA that provides national
leadership and policy guidance and develops regulations and procedures
to carry out the responsibilities of the Secretary of Labor under the
INA concerning alien workers seeking admission to the United States in
order to work under the Immigration and Nationality Act, as amended.
Port means a geographic area, either on a seacoast, lake, river or
any other navigable body of water, which contains one or more publicly
or privately owned terminals, piers, docks, or maritime facilities,
which is commonly thought of as a port by other government maritime-
related agencies, such as the Maritime Administration. U.S.
[[Page 382]]
ports include, but are not limited to, those listed in Appendix A to
this subpart.
Qualified and available in sufficient numbers means the full
complement of qualified longshore workers needed to perform the
longshore activity, as determined by industry standards in the State of
Alaska, including safety considerations.
Secretary means the Secretary of Labor or the Secretary's designee.
Strike means a labor dispute wherein employees engage in a concerted
stoppage of work (including stoppage by reason of the expiration of a
collective-bargaining agreement) or engage in any concerted slowdown or
other concerted interruption of operations.
Unanticipated emergency means an unexpected and unavoidable
situation, such as one involving severe weather conditions, natural
disaster, or mechanical breakdown, where cargo must be immediately
loaded on, or unloaded from, a vessel.
United States is defined at 8 U.S.C. 1101(a)(38).
United States (U.S.) worker means a worker who is a U.S. citizen, a
U.S. national, a permanent resident alien, or any other worker legally
permitted to work indefinitely in the United States.
[60 FR 3956, 3976, Jan. 19, 1995, as amended at 71 FR 35520, June 21,
2006]
Sec. 655.510 Employer attestations.
(a) Who may submit attestations? An employer (or the employer's
designated U.S. agent or representative) seeking to employ alien
crewmembers for a particular activity of longshore work under the
prevailing practice exception shall submit an attestation, provided
there is not in effect in the local port any collective bargaining
agreement covering at least 30 percent of the longshore workers. An
attestation is required for each port at which the employer intends to
use alien crewmembers for longshore work. The attestation shall include:
A completed Form ETA 9033, which shall be signed by the employer (or the
employer's designated agent or representative); and facts and evidence
prescribed in paragraphs (d) through (f) of this section. This Sec.
655.510 shall not apply in the case of longshore work performed at a
particular location in the State of Alaska. The procedures governing the
filing of attestations under the Alaska exception are set forth at
Sec. Sec. 655.530 through 655.541.
(b) Where and when should attestations be submitted? (1)
Attestations must be submitted, by U.S. mail, private carrier, or
facsimile transmission to the U.S. Department of Labor office(s) which
are designated by the OFLC Administrator. Attestations must be received
and date-stamped by DOL at least 14 calendar days prior to the date of
the first performance of the intended longshore activity, and shall be
accepted for filing or returned by ETA in accordance with paragraph (g)
of this section within 14 calendar days of the date received by ETA. An
attestation which is accepted by ETA solely because it was not reviewed
within 14 days is subject to subsequent invalidation pursuant to
paragraph (i) of this section. Every employer filing an attestation
shall have an agent or representative with a United States address. Such
address shall be clearly indicated on the Form ETA 9033. In order to
ensure that an attestation has been accepted for filing prior to the
date of the performance of the longshore activity, employers are advised
to take mailing time into account to make sure that ETA receives the
attestation at least 14 days prior to the first performance of the
longshore activity.
(2) Unanticipated Emergencies. ETA may accept for filing
attestations received after the 14-day deadline when due to an
unanticipated emergency, as defined in Sec. 655.502 of this part. When
an employer is claiming an unanticipated emergency, it shall submit
documentation to support such a claim. ETA shall then make a
determination on the validity of the claim, and shall accept the
attestation for filing or return it in accordance with paragraph (g) of
this section. ETA shall in no case accept an attestation received later
than the date of the first performance of the activity.
(c) What should be submitted?--(1) Form ETA 9033 with accompanying
documentation. For each port, a completed and dated original Form ETA
9033, or facsimile transmission thereof, containing the required
attestation elements and the original signature of the
[[Page 383]]
employer (or the employer's designated agent or representative) shall be
submitted, along with two copies of the completed, signed, and dated
Form ETA 9033. (If the attestation is submitted by facsimile
transmission, the attestation containing the original signature shall be
maintained at the U.S. business address of the employer's designated
agent or representative). Copies of Form ETA 9033 are available at the
National Processing Centers and at the National Office. In addition, the
employer shall submit two sets of all facts and evidence to show
compliance with each of the attestation elements as prescribed by the
regulatory standards in paragraphs (d) through (f) of this section. In
the case of an investigation pursuant to subpart G of this part, the
employer shall have the burden of proof to establish the validity of
each attestation. The employer shall maintain in its records at the
office of its U.S. agent, for a period of at least 3 years from the date
of filing, sufficient documentation to meet its burden of proof, which
shall at a minimum include the documentation described in this Sec.
655.510, and shall make the documents available to Department of Labor
officials upon request.
Whenever any document is submitted to a Federal agency or retained
in the employer's records pursuant to this part, the document either
shall be in the English language or shall be accompanied by a written
translation into the English language certified by the translator as to
the accuracy of the translation and his/her competency to translate.
(2) Statutory precondition regarding collective bargaining
agreements. (i) The employer may file an attestation only when there is
no collective bargaining agreement in effect in the port covering 30
percent or more of the longshore workers in the port. The employer shall
attest on the Form ETA 9033 that no such collective bargaining agreement
exists at the port at the time that the attestation is filed.
(ii) The employer is not required to submit with the Form ETA 9033
documentation substantiating that there is no collective bargaining
agreement in effect in the port covering 30 percent or more of the
longshore workers. If a complaint is filed which presents reasonable
cause to believe that such an agreement exists, the Department shall
conduct an investigation. In such an investigation, the employer shall
have the burden of proving that no such collective bargaining agreement
exists.
(3) Ports for which attestations may be filed. Employers may file an
attestation for a port which is listed in appendix A (U.S. Seaports) to
this subpart. Employers may also file an attestation for a particular
location not in appendix A to this subpart if additional facts and
evidence are submitted with the attestation to demonstrate that the
location is a port, meeting all of the criteria as defined by Sec.
655.502 of this part.
(4) Attestation elements. The attestation elements referenced in
paragraph (c)(1) of this section are mandated by sec. 258(c)(1)(B) of
the Act (8 U.S.C. 1288(c)(1)(B)). Section 258(c)(1)(B) of the Act
requires employers who seek to have alien crewmembers engage in a
longshore activity to attest as follows:
(i) The performance of the activity by alien crewmembers is
permitted under the prevailing practice of the particular port as of the
date of filing of the attestation;
(ii) The use of the alien crewmembers for such activity is not
during a strike or lockout in the course of a labor dispute, and is not
intended or designed to influence an election of a bargaining
representative for workers in the local port; and
(iii) Notice of the attestation has been provided by the owner,
agent, consignee, master, or commanding officer to the bargaining
representative of longshore workers in the local port, or, where there
is no such bargaining representative, notice has been provided to
longshore workers employed at the local port.
(d) The first attestation element: prevailing practice. For an
employer to be in compliance with the first attestation element, it is
required to have been the prevailing practice during the 12-month period
preceding the filing of the attestation, for a particular activity of
longshore work at the particular port to be performed by alien
crewmembers. For each port, a prevailing practice can exist for any of
four different types of longshore work: loading
[[Page 384]]
of cargo, unloading of cargo, operation of cargo-related equipment, or
handling of mooring lines. It is thus possible that at a particular port
it is the prevailing practice for alien crewmembers to unload vessels
but not the prevailing practice to load them. An employer shall indicate
on the attestation form which of the four longshore activities it is
claiming is the prevailing practice for such work to be performed by
alien crewmembers.
(1) Establishing a prevailing practice. (i) In establishing that a
particular activity of longshore work is the prevailing practice at a
particular port, an employer shall submit facts and evidence to show
that in the 12-month period preceding the filing of the attestation, one
of the following conditions existed:
(A) Over fifty percent of vessels docking at the port used alien
crewmembers for the activity; or
(B) Alien crewmembers made up over fifty percent of the workers in
the port who engaged in the activity.
(ii) Prevailing practice after Secretary of State determination of
non-reciprocity. Section 258(d) of the Act provides a reciprocity
exception (separate from the prevailing practice exception) to the
prohibition on performance of longshore work by alien crewmembers in
U.S. ports. However, this reciprocity exception becomes nonapplicable
where the Secretary of State determines that, for a particular activity
of longshore work, a particular country (by law, regulation, or
practice) prohibits such activity by U.S. crewmembers in its ports. When
the Secretary of State places a country on the non-reciprocity list
(which means, for the purposes of this section, Prohibitions on
longshore work by U.S. nationals; listing by country at 22 CFR 89.1),
crewmembers on vessels from that country (that is, vessels that are
registered in that country or vessels whose majority ownership interest
is held by nationals of that country) are not permitted to perform
longshore work in U.S. waters, absent applicability of some exception
other than the reciprocity exception. The Secretary of State's
determination has the following effects in the establishment of a
prevailing practice for a particular longshore activity at a particular
U.S. port for purposes of the prevailing practice exception.
(A) An employer from any country, other than the country which is
placed on the non-reciprocity list, may include the longshore activities
performed by alien crewmembers on all vessels in establishing the
prevailing practice for a particular longshore activity in a particular
port.
(B) An employer from a country which is placed on the non-
reciprocity list may file an attestation for the prevailing practice
exception under the standards and requirements established in this
subpart F (except as provided in paragraph (d)(1)(ii)(C) of this
section), provided that the attestation is filed at least 12 months
after the date on which the employer's country is placed on the list.
(C) An employer from a country which is placed on the non-
reciprocity list may file an attestation pursuant to the prevailing
practice exception earlier than 12 months from the date on which the
employer's country is placed on the list, except that the following
restrictions shall apply to such attestation:
(1) The employer shall submit facts and evidence to show that, for
the 12-month period preceding the date of the attestation, the use of
alien crewmembers to perform a particular activity of longshore work was
permitted by the prevailing practice in the port (as defined in
paragraph (d)(1)(i) of this section) without considering or including
such activity by crewmembers on vessels from the employer's country; or
(2) The employer shall submit facts and evidence (including data on
activities performed by crewmembers on vessels from the employer's
country) to show that the use of alien crewmembers to perform a
particular activity of longshore work was permitted by the prevailing
practice in the port (as defined in paragraph (d)(1)(i) of this section)
for one of two periods--
(i) For the employer whose country has not previously been on the
non-reciprocity list, the period is the continuous 12-month period prior
to May 28, 1991 (the effective date of section 258 of the Act); or
[[Page 385]]
(ii) For the employer whose country was at some time on the non-
reciprocity list, but was subsequently removed from the non-reciprocity
list and then restored to the non-reciprocity list (on one or more
occasions), the period is the last continuous 12-month period during
which the employer's country was not under the reciprocity exception
(that is, was listed on the non-reciprocity list).
(iii) For purposes of this paragraph (d)(1):
(A) ``Workers in the port engaged in the activity'' means any person
who performed the activity in any calendar day;
(B) Vessels shall be counted each time they dock at the particular
port):
(C) Vessels exempt from section 258 of the INA for safety and
environmental protection shall not be included in counting the number of
vessels which dock at the port (see Department of Transportation
Regulations); and
(D) Automated vessels shall not be included in counting the number
of vessels which dock at the port. For establishing a prevailing
practice under the automated vessel exception see Sec. 655.520 of this
part.
(2) Documentation. In assembling the facts and evidence required by
paragraph (d)(1) of this section, the employer may consult with the port
authority which has jurisdiction over the local port, the collective
bargaining representative(s) of longshore workers at the local port,
other employers, or any other entity which is familiar with the
practices at the port. Such documentation shall include a written
summary of a survey of the experience of shipmasters who entered the
local port in the previous year; or a letter, affidavit, or other
written statement from an appropriate local port authority regarding the
use of alien crewmembers to perform the longshore activity at the port
in the previous year; or other documentation of comparable weight.
Written statements from collective bargaining representatives and/or
shipping agents with direct knowledge of practices regarding the use of
alien crewmembers in the local port may also be pertinent. Such
documentation shall accompany the Form ETA 9033, and any underlying
documentation which supports the employer's burden of proof shall be
maintained in the employer's records at the office of the U.S. agent as
required by paragraph (c)(1) of this section.
(e) The second attestation element: no strike or lockout; no
intention or design to influence bargaining representative election. (1)
The employer shall attest that, at the time of submitting the
attestation, there is not a strike or lockout in the course of a labor
dispute covering the employer's activity, and that it will not use alien
crewmembers during a strike or lockout after filing the attestation. The
employer shall also attest that the employment of such aliens is not
intended or designed to influence an election for a bargaining
representative for workers in the local port. Labor disputes for
purposes of this attestation element relate only to those involving
longshore workers at the port of intended employment. This attestation
element applies to strikes and lockouts and elections of bargaining
representatives at the local port where the use of alien crewmembers for
longshore work is intended.
(2) Documentation. As documentation to substantiate the requirement
in paragraph (e)(1) of this section, an employer may submit a statement
of the good faith efforts made to determine whether there is a strike or
lockout at the particular port, as, for example, by contacting the port
authority or the collective bargaining representative for longshore
workers at the particular port.
(f) The third attestation element: notice of filing. The employer of
alien crewmembers shall attest that at the time of filing the
attestation, notice of filing has been provided to the bargaining
representative of the longshore workers in the local port, or, where
there is no such bargaining representative, notice of the filing has
been provided to longshore workers employed at the local port through
posting in conspicuous locations and through other appropriate means.
(1) Notification of bargaining representative. No later than the
date the attestation is received by DOL to be considered for filing, the
employer of alien
[[Page 386]]
crewmembers shall notify the bargaining representative (if any) of
longshore workers at the local port that the attestation is being
submitted to DOL. The notice shall include a copy of the Form ETA 9033,
shall state the activity(ies) for which the attestation is submitted,
and shall state in that notice that the attestation and accompanying
documentation are available at the national office of ETA for review by
interested parties. The employer may have its owner, agent, consignee,
master, or commanding officer provide such notice. Notices under this
paragraph (f)(1) shall include the following statement: ``Complaints
alleging misrepresentation of material facts in the attestation and/or
failure to comply with the terms of the attestation may be filed with
any office of the Wage and Hour Division of the United States Department
of Labor.''
(2) Posting notice where there is no bargaining representative. If
there is no bargaining representative of longshore workers at the local
port when the employer submits an attestation to ETA, the employer shall
provide written notice to the port authority for distribution to the
public on request. In addition, the employer shall post one or more
written notices at the local port, stating that the attestation with
accompanying documentation has been submitted, the activity(ies) for
which the attestation has been submitted, and that the attestation and
accompanying documentation are available at the national office of ETA
for review by interested parties. Such posted notice shall be clearly
visible and unobstructed, and shall be posted in conspicuous places
where the longshore workers readily can read the posted notice on the
way to or from their duties. Appropriate locations for posting such
notices include locations in the immediate proximity of mandatory Fair
Labor Standards Act wage and hour notices and Occupational Safety and
Health Act occupational safety and health notices. The notice shall
include a copy of the Form ETA 9033 filed with DOL, shall provide
information concerning the availability of supporting documents for
examination at the national office of ETA, and shall include the
following statement: ``Complaints alleging misrepresentation of material
facts in the attestation and/or failure to comply with the terms of the
attestation may be filed with any office of the Wage and Hour Division
of the United States Department of Labor.''
(3) Documentation. The employer shall provide a statement setting
forth the name and address of the person to whom the notice was provided
and where and when the notice was posted and shall attach a copy of the
notice.
(g) Actions on attestations submitted for filing. Once an
attestation has been received from an employer, a determination shall be
made by the Certifying Officer whether to accept the attestation for
filing or return it. The Certifying Officer may request additional
explanation and/or documentation from the employer in making this
determination. An attestation which is properly filled out and which
includes accompanying documentation for each of the requirements set
forth at Sec. 655.510(d) through (f) shall be accepted for filing by
ETA on the date it is signed by the Certifying Officer unless it falls
within one of the categories set forth in paragraph (g)(2) of this
section. Once an attestation is accepted for filing, ETA shall then
follow the procedures set forth in paragraph (g)(1) of this section.
Upon acceptance of the employer's attestation by ETA, the attestation
and accompanying documentation will be forwarded and shall be available
in a timely manner for public examination at the ETA national office.
ETA shall not consider information contesting an attestation received by
ETA prior to the determination to accept or return the attestation for
filing. Such information shall not be made part of ETA's administrative
record on the attestation, but shall be referred to ESA to be processed
as a complaint pursuant to subpart G of this part if the attestation is
accepted by ETA for filing.
(1) Acceptance. (i) If the attestation is properly filled out and
includes accompanying documentation for each of the requirements at
Sec. 655.510(d) through (f), and does not fall within one of the
categories set forth at paragraph (g)(2) of
[[Page 387]]
this section, ETA shall accept the attestation for filing, provide
notification to the DHS office having jurisdiction over the port where
longshore work will be performed, and return to the employer, or the
employer's agent or representative at a U.S. address, one copy of the
attestation form submitted by the employer, with ETA's acceptance
indicated thereon. The employer may then use alien crewmembers for the
particular activity of longshore work at the U.S. port cited in the
attestation in accordance with DHS regulations.
(ii) DOL is not the guarantor of the accuracy, truthfulness or
adequacy of an attestation accepted for filing.
(2) Unacceptable attestations. ETA shall not accept an attestation
for filing and shall return such attestation to the employer, or the
employer's agent or representative at a U.S. address, when one of the
following conditions exists:
(i) When the Form ETA 9033 is not properly filled out. Examples of
improperly filled out Form ETA 9033's include instances where the
employer has neglected to check all the necessary boxes, or where the
employer has failed to include the name of the port where it intends to
use the alien crewmembers for longshore work, or where the employer has
named a port that is not listed in appendix A and has failed to submit
facts and evidence to support a showing that the location is a port as
defined by Sec. 655.502, or when the employer has failed to sign the
attestation or to designate an agent in the United States;
(ii) When the Form ETA 9033 with accompanying documentation is not
received by ETA at least 14 days prior to the date of performance of the
first activity indicated on the Form ETA 9033; unless the employer is
claiming an unanticipated emergency, has included documentation which
supports such claim, and ETA has found the claim to be valid;
(iii) When the Form ETA 9033 does not include accompanying
documentation for each of the requirements set forth at Sec. 655.510
(d) through (f);
(iv) When the accompanying documentation required by paragraph (c)
of this section submitted by the employer, on its face, is inconsistent
with the requirements set forth at Sec. 655.510 (d) through (f).
Examples of such a situation include instances where the Form ETA 9033
pertains to one port and the accompanying documentation to another;
where the Form ETA 9033 pertains to one activity of longshore work and
the accompanying documentation obviously refers to another; or where the
documentation clearly indicates that only thirty percent, instead of the
required fifty percent, of the activity attested to is performed by
alien crewmembers;
(v) When the Administrator, Wage and Hour Division, has notified
ETA, in writing, after an investigation pursuant to subpart G of this
part, that the particular activity of longshore work which the employer
has attested is the prevailing practice at a particular port, is not, in
fact, the prevailing practice at the particular port;
(vi) When the Administrator, Wage and Hour Division, has notified
ETA, in writing, that a cease and desist order has been issued pursuant
to subpart G of this part, with respect to the attesting employer's
performance of the particular activity and port, in violation of a
previously accepted attestation;
(vii) When the Administrator, Wage and Hour Division, has notified
ETA, in writing, after an investigation pursuant to subpart G of this
part, that the particular employer has misrepresented or failed to
comply with an attestation previously submitted and accepted for filing,
but in no case for a period of more than one year after the date of the
Administrator's notice and provided that DHS has not advised ETA that
the prohibition is in effect for a lesser period; or
(viii) When the Administrator, Wage and Hour Division, has notified
ETA, in writing, that the employer has failed to comply with any
penalty, sanction, or other remedy assessed in a final agency action
following an investigation by the Wage and Hour Division pursuant to
subpart G of this part.
(3) Resubmission. If the attestation is not accepted for filing
pursuant to the categories set forth in paragraph (g)(2) of this
section, ETA shall return to the employer, or the employer's agent or
representative, at a U.S. address, the
[[Page 388]]
attestation form and accompanying documentation submitted by the
employer. ETA shall notify the employer, in writing, of the reason(s)
that the attestation is unacceptable. When an attestation is found to be
unacceptable pursuant to paragraphs (g)(2) (i) through (iv) of this
section, the employer may resubmit the attestation with the proper
documentation. When an attestation is found to be unacceptable pursuant
to paragraphs (g)(2) (v) through (viii) of this section and returned,
such action shall be the final decision of the Secretary of Labor.
(h) Effective date and validity of filed attestations. An
attestation is filed and effective as of the date it is accepted and
signed by the Certifying Officer. Such attestation is valid for the 12-
month period beginning on the date of acceptance for filing, unless
suspended or invalidated pursuant to subpart G of this part or paragraph
(i) of this section. The filed attestation expires at the end of the 12-
month period of validity.
(i) Suspension or invalidation of filed attestations. Suspension or
invalidation of an attestation may result from enforcement action(s)
under subpart G of this part (i.e., investigation(s) conducted by the
Administrator or cease and desist order(s) issued by the Administrator
regarding the employer's misrepresentation in or failure to carry out
its attestation); or from a discovery by ETA that it made an error in
accepting the attestation because such attestation falls within one of
the categories set forth in paragraph (g)(2) of this section.
(1) Result of Wage and Hour Division action. Upon the determination
of a violation under subpart G of this part, the Administrator shall,
pursuant to Sec. 655.660(b), notify the DHS of the violation and of the
Administrator's notice to ETA.
(2) Result of ETA action. If, after accepting an attestation for
filing, ETA finds that the attestation is unacceptable because it falls
within one of the categories set forth at paragraph (g)(2) of this
section, and as a result, ETA suspends or invalidates the attestation,
ETA shall notify the DHS of such suspension or invalidation and shall
return a copy of the attestation form to the employer, or the employer's
agent or representative, at a U.S. address. ETA shall notify the
employer, in writing, of the reason(s) that the attestation is suspended
or invalidated. When an attestation is found to be suspended or
invalidated pursuant to paragraphs (g)(2) (i) through (iv) of this
section, the employer may resubmit the attestation with the proper
documentation. When an attestation is suspended or invalidated because
it falls within one of the categories in paragraphs (g)(2) (v) through
(viii) of this section, such action shall be the final decision of the
Secretary of Labor, except as set forth in subpart G of this part.
(j) Withdrawal of accepted attestations. (1) An employer who has
submitted an attestation which has been accepted for filing may withdraw
such attestation at any time before the 12-month period of its validity
terminates, unless the Administrator has found reasonable cause under
subpart G to commence an investigation of the particular attestation.
Such withdrawal may be advisable, for example, when the employer learns
that the particular activity(ies) of longshore work which it has
attested is the prevailing practice to perform with alien crewmembers
may not, in fact, have been the prevailing practice at the particular
port at the time of filing. Requests for such withdrawals shall be in
writing and shall be directed to the Certifying Officer.
(2) Withdrawal of an attestation shall not affect an employer's
liability with respect to any failure to meet the conditions attested to
which took place before the withdrawal, or for misrepresentations in an
attestation. However, if an employer has not yet performed the
particular longshore activity(ies) at the port in question, the
Administrator will not find reasonable cause to investigate unless it is
alleged, and there is reasonable cause to believe, that the employer has
made misrepresentations in the attestation or documentation thereof, or
that the employer has not in fact given the notice attested to.
(Approved by the Office of Management and Budget under Control No. 1205-
0309)
[60 FR 3956, 3976, Jan. 19, 1995, as amended at 71 FR 35520, June 21,
2006]
[[Page 389]]
Sec. 655.520 Special provisions regarding automated vessels.
In general, an attestation is not required in the case of a
particular activity of longshore work consisting of the use of automated
self-unloading conveyor belt or vacuum-actuated systems on a vessel. The
legislation creates a rebuttable presumption that the use of alien
crewmembers for the operation of such automated systems is the
prevailing practice. In order to overcome such presumption, it must be
shown by the preponderance of the evidence submitted by any interested
party, that the use of alien crewmembers for such activity is not the
prevailing practice. Longshore work involving the use of such equipment
shall be exempt from the attestation requirement only if the activity
consists of using that equipment. If the automated equipment is not used
in the particular activity of longshore work, an attestation is required
as described under Sec. 655.510 of this part if it is the prevailing
practice in the port to use alien crewmembers for this work, except that
in all cases, where an attestation is required for longshore work to be
performed at a particular location in the State of Alaska, an employer
shall file such attestation under the Alaska exception pursuant to
Sec. Sec. 655.530 through 655.541 on Form ETA 9033-A. When automated
equipment is used in the particular activity of longshore work, an
attestation is required only if the Administrator finds, based on a
preponderance of the evidence which may be submitted by any interested
party, that the performance of the particular activity of longshore work
is not the prevailing practice at the port, or was during a strike or
lockout or intended to influence an election of a bargaining
representative for workers in the local port, or if the Administrator
issues a cease and desist order against use of the automated equipment
without such attestation.
(a) Procedure when attestation is required. If it is determined
pursuant to subpart G of this part that an attestation is required for
longshore work consisting of the use of automated equipment at a
location other than in the State of Alaska, the employer shall comply
with all the requirements set forth at Sec. 655.510 of this part except
paragraph (d) of Sec. 655.510. In lieu of complying with Sec.
655.510(d) of this part, the employer shall comply with paragraph (b) of
this section. If it is determined pursuant to subpart G of this part
that an attestation is required for longshore work consisting of the use
of automated equipment at a particular location in the State of Alaska,
the employer shall comply with all the requirements set forth at
Sec. Sec. 655.530 through 655.541 of this part.
(b) The first attestation element: prevailing practice for automated
vessels. For an employer to be in compliance with the first attestation
element, it is required to have been the prevailing practice that over
fifty percent (as described in paragraph (b)(1) of this section) of a
particular activity of longshore work which was performed through the
use of automated self-unloading conveyor belt or vacuum-actuated
equipment at the particular port during the 12-month period preceding
the filing of the attestation, was performed by alien crewmembers. For
purposes of this paragraph (b), only automated vessels shall be included
in counting the number of vessels which dock at the port.
(1) Establishing a prevailing practice. (i) In establishing that the
use of alien crewmembers to perform a particular activity of longshore
work consisting of the use of self-unloading conveyor belt or vacuum-
actuated systems on a vessel is the prevailing practice at a particular
port, an employer shall submit facts and evidence to show that in the
12-month period preceding the filing of the attestation, one of the
following conditions existed:
(A) Over fifty percent of the automated vessels docking at the port
used alien crewmembers for the activity (for purposes of this paragraph
(b)(1), a vessel shall be counted each time it docks at the particular
port); or
(B) Alien crewmembers made up over fifty percent of the workers who
performed the activity with respect to such automated vessels.
(ii) Prevailing practice after Secretary of State determination of
non-reciprocity. Section 258(d) of the Act provides a reciprocity
exception (separate from the prevailing practice exception) to the
[[Page 390]]
prohibition on performance of longshore work by alien crewmembers in
U.S. ports. However, this reciprocity exception becomes nonapplicable
where the Secretary of State determines that, for a particular activity
of longshore work, a particular country (by law, regulation, or
practice) prohibits such activity by U.S. crewmembers in its ports. When
the Secretary of State places a country on the non-reciprocity list
(which means, for the purposes of this section, Prohibitions on
longshore work by U.S. nationals; listing by country at 22 CFR 89.1),
crewmembers on vessels from that country (that is, vessels that are
registered in that country or vessels whose majority ownership interest
is held by nationals of that country) are not permitted to perform
longshore work in U.S. waters, absent applicability of some exception
other than the reciprocity exception. The Secretary of State's
determination has the following effects in the establishment of a
prevailing practice for a particular longshore activity at a particular
U.S. port for purposes of the prevailing practice exception.
(A) An employer from any country, other than the country which is
placed on the non-reciprocity list, may include the longshore activities
performed by alien crewmembers on all vessels in establishing the
prevailing practice for a particular longshore activity in a particular
port.
(B) An employer from a country which is placed on the non-
reciprocity list may file an attestation for the prevailing practice
exception under the standards and requirements established in this
subpart F (except as provided in paragraph (b)(1)(ii)(C) of this
section), provided that the attestation is filed at least 12 months
after the date on which the employer's country is placed on the list.
(C) An employer from a country which is placed on the non-
reciprocity list may file an attestation pursuant to the prevailing
practice exception earlier than 12 months from the date on which the
employer's country is placed on the list, except that the following
restrictions shall apply to such attestation:
(1) The employer shall submit facts and evidence to show that, for
the 12-month period preceding the date of the attestation, the use of
alien crewmembers to perform a particular activity of longshore work was
permitted by the prevailing practice in the port (as defined in
paragraph (d)(1)(i) of this section) without considering or including
such activity by crewmembers on vessels from the employer's country; or
(2) The employer shall submit facts and evidence (including data on
activities performed by crewmembers on vessels from the employer's
country) to show that the use of alien crewmembers to perform a
particular activity of longshore work was permitted by the prevailing
practice in the port (as defined in paragraph (b)(1)(i) of this section)
for one of two periods--
(i) For the employer whose country has not previously been on the
non-reciprocity list, the period is the continuous 12-month period prior
to May 28, 1991 (the effective date of section 258 of the Act); or
(ii) For the employer whose country was at some time on the non-
reciprocity list, but was subsequently removed from the non-reciprocity
list and then restored to the non-reciprocity list (on one or more
occasions), the period is the last continuous 12-month period during
which the employer's country was not under the reciprocity exception
(that is, was listed on the non-reciprocity list).
(2) Documentation. In assembling the documentation described in
paragraph (b)(1) of this section, the employer may consult with the port
authority which has jurisdiction over the local port, the collective
bargaining representative(s) of longshore workers at the local port,
other employers, or any other entity which is familiar with the
practices at the port. The documentation shall include a written summary
of a survey of the experience of shipmasters who entered the local port
in the previous year; or a letter, affidavit, or other written statement
from an appropriate local port authority regarding the use of alien
crewmembers to perform the longshore activity at the port in the
previous year; or other documentation of comparable weight. Written
statements from collective bargaining representatives and/or shipping
agents
[[Page 391]]
with direct knowledge of practices regarding the use of alien
crewmembers may also be pertinent. Such documentation shall accompany
the Form ETA 9033, and any underlying documentation which supports the
employer's burden of proof shall be maintained in the employer's records
at the office of the U.S. agent as required under Sec. 655.510(c)(1) of
this part.
(Approved by the Office of Management and Budget under Control No. 1205-
0309)
Alaska Exception
Sec. 655.530 Special provisions regarding the performance of longshore
activities at locations in the State of Alaska.
Applicability. Section Sec. 655.510 of this part shall not apply to
longshore work performed at locations in the State of Alaska. The
performance of longshore work by alien crewmembers at locations in the
State of Alaska shall instead be governed by Sec. Sec. 655.530 through
655.541. The use of alien crewmembers to perform longshore work in
Alaska consisting of the use of an automated self-unloading conveyor
belt or vacuum-actuated system on a vessel shall continue to be governed
by the provisions of Sec. 655.520 of this part, except that, if the
Administrator finds, based on a preponderance of the evidence which may
be submitted by any interested party, that an attestation is required
because the performance of the particular activity of longshore work is
not the prevailing practice at the location in the State of Alaska, or
was during a strike or lockout or intended to influence an election of a
bargaining representative for workers at that location, or if the
Administrator issues a cease and desist order against use of the
automated equipment without such an attestation, the required
attestation shall be filed pursuant to the Alaska exception at
Sec. Sec. 655.530 through 655.541 and not the prevailing practice
exception at Sec. 655.510.
Sec. 655.531 Who may submit attestations for locations in Alaska?
In order to use alien crewmembers to perform longshore activities at
a particular location in the State of Alaska an employer shall submit an
attestation on Form ETA 9033-A. As noted at Sec. 655.502,
``Definitions,'' for purposes of Sec. Sec. 655.530 through 655.541,
which govern the performance of longshore activities by alien
crewmembers under the Alaska exception, ``employer'' includes any agent
or representative designated by the employer. An employer may file a
single attestation for multiple locations in the State of Alaska.
Sec. 655.532 Where and when should attestations be submitted for
locations in Alaska?
(a) Attestations shall be submitted, by U.S. mail, private carrier,
or facsimile transmission to the U.S. Department of Labor regional
office of the Employment and Training Administration in Seattle,
Washington. Except as provided in paragraph (b) of this section,
attestations shall be received and date-stamped by the Department at
least 30 calendar days prior to the date of the first performance of the
longshore activity. The attestation shall be accepted for filing or
returned by ETA in accordance with Sec. 655.538 within 14 calendar days
of the date received by ETA. An attestation which is accepted by ETA
solely because it was not reviewed within 14 days is subject to
subsequent invalidation pursuant to Sec. 655.540 of this part. An
employer filing an attestation shall have an agent or representative
with a United States address. Such address shall be clearly indicated on
the Form ETA 9033-A. In order to ensure that an attestation has been
accepted for filing prior to the date of the first performance of the
longshore activity, employers are advised to take mailing time into
account to make sure that ETA receives the attestation at least 30 days
prior to the first performance of the longshore activity.
(b) Late filings. ETA may accept for filing attestations received
after the 30-day deadline where the employer could not have reasonably
anticipated the need to file an attestation for the particular location
at that time. When an employer states that it could not have reasonably
anticipated the need to file the attestation at that time, it shall
submit documentation to ETA to support such a claim. ETA shall then make
a determination on the validity
[[Page 392]]
of the claim and shall accept the attestation for filing or return it in
accordance with Sec. 655.538 of this part. ETA in no case shall accept
an attestation received less than 24 hours prior to the first
performance of the activity.
Sec. 655.533 What should be submitted for locations in Alaska?
(a) Form ETA 9033-A with accompanying documentation. A completed and
dated original Form ETA 9033-A, or facsimile transmission thereof,
containing the required attestation elements and the original signature
of the employer or the employer's agent or designated representative,
along with two copies of the completed, signed, and dated Form ETA 9033-
A shall be submitted to ETA. (If the attestation is submitted by
facsimile transmission, the attestation containing the original
signature shall be maintained at the U.S. business address of the
employer's designated agent or representative). Copies of Form ETA 9033-
A are available at the National Processing Centers and at the National
office. In addition, the employer shall submit two sets of facts and
evidence to show compliance with the fourth attestation element at Sec.
655.537 of this part. In the case of an investigation pursuant to
subpart G of this part, the employer has the burden of proof to
establish the validity of each attestation. The employer shall maintain
in its records at the office of its U.S. agent, for a period of at least
3 years from the date of filing, sufficient documentation to meet its
burden of proof, which shall at a minimum include the documentation
described in Sec. Sec. 655.530 through 655.541, and shall make the
documents available to Department of Labor officials upon request.
Whenever any document is submitted to a Federal agency or retained in
the employer's records pursuant to this part, the document shall either
be in the English language or shall be accompanied by a written
translation into the English language certified by the translator as to
the accuracy of the translation and his/her competency to translate.
(b) Attestation elements. The attestation elements referenced in
Sec. Sec. 655.534 through 655.537 of this part are mandated by Sec.
258(d)(1) of the Act (8 U.S.C. 1288(d)(1)). Section 258(d)(1) of the Act
requires employers who seek to have alien crewmembers engage in
longshore activity at locations in the State of Alaska to attest as
follows:
(1) The employer will make a bona fide request for United States
longshore workers who are qualified and available in sufficient numbers
to perform the activity at the particular time and location from the
parties to whom notice has been provided under Sec. 655.537(a)(1) (ii)
and (iii), except that:
(i) Wherever two or more contract stevedoring companies have signed
a joint collective bargaining agreement with a single labor organization
recognized as an exclusive bargaining representative of United States
longshore workers within the meaning of the National Labor Relations Act
(29 U.S.C. 141 et seq.), the employer may request longshore workers from
only one such contract stevedoring company, and
(ii) A request for longshore workers to an operator of a private
dock may be made only for longshore work to be performed at that dock
and only if the operator meets the requirements of section 32 of the
Longshore and Harbor Workers' Compensation Act (33 U.S.C. 932);
(2) The employer will employ all United States longshore workers
made available in response to the request made pursuant to Sec.
655.534(a)(1) who are qualified and available in sufficient numbers and
who are needed to perform the longshore activity at the particular time
and location to which the employer has attested;
(3) The use of alien crewmembers for such activity is not intended
or designed to influence an election of a bargaining representative for
workers in the State of Alaska; and
(4) Notice of the attestation has been provided to:
(i) Labor organizations which have been recognized as exclusive
bargaining representatives of United States longshore workers within the
meaning of the National Labor Relations Act (29 U.S.C. 141 et seq.) and
which make available or intend to make available workers to the
particular location where the longshore work is to be performed;
[[Page 393]]
(ii) Contract stevedoring companies which employ or intend to employ
United States longshore workers at that location; and
(iii) Operators of private docks at which the employer will use
longshore workers.
[60 FR 3956, 3976, Jan. 19, 1995, as amended at 71 FR 35520, June 21,
2006]
Sec. 655.534 The first attestation element for locations in Alaska:
Bona fide request for dispatch of United States longshore
workers.
(a) The first attestation element shall be satisfied when the
employer signs Form ETA 9033-A, attesting that, before using alien
crewmembers to perform longshore work during the validity period of the
attestation, the employer will make a bona fide request for United
States longshore workers who are qualified and available in sufficient
numbers to perform the specified longshore activity from the parties to
whom notice is provided under Sec. 655.537(a)(1) (ii) and (iii).
Although an employer is required to provide notification of filing to
labor organizations recognized as exclusive bargaining representatives
of United States longshore workers pursuant to Sec. 655.537(a)(1)(i) of
this part, an employer need not request dispatch of United States
longshore workers directly from such parties. The requests for dispatch
of United States longshore workers pursuant to this section shall be
directed to contract stevedoring companies which employ or intend to
employ United States longshore workers at that location, and to
operators of private docks at which the employer will use longshore
workers. An employer is not required to request dispatch of United
States longshore workers from private dock operators or contract
stevedoring companies which do not meet the requirements of section 32
of the Longshore and Harbor Workers' Compensation Act (33 U.S.C. 932)
or, in the case of contract stevedoring companies, which are not
licensed to do business in the State of Alaska.
(1) Wherever two or more contract stevedoring companies have signed
a joint collective bargaining agreement with a single qualified labor
organization, the employer may request longshore workers from only one
of such contract stevedoring companies. A qualified labor organization
is one which has been recognized as an exclusive bargaining
representative of United States longshore workers within the meaning of
the National Labor Relations Act (29 U.S.C. 141 et seq.) and which makes
available or intends to make available workers to the particular
location where the longshore work is to be performed.
(2) A request for longshore workers to an operator of a private dock
may be made only for longshore work to be performed at that dock.
(3) An employer shall not be required to request longshore workers
from a party if that party has notified the employer in writing that it
does not intend to make available United States longshore workers who
are qualified and available in sufficient numbers to the time and
location at which the longshore work is to be performed.
(4) A party that has provided such written notice to the employer
under paragraph (a)(3) of this section may subsequently notify the
employer in writing that it is prepared to make available United States
longshore workers who are qualified and available in sufficient numbers
to perform the longshore activity at the time and location where the
longshore work is to be performed. In that event, the employer's
obligations to that party under Sec. Sec. 655.534 and 655.535 of this
part shall recommence 60 days after its receipt of such notice.
(5) When a party has provided written notice to the employer under
paragraph (a)(3) of this section that it does not intend to dispatch
United States longshore workers to perform the longshore work attested
to by the employer, such notice shall expire upon the earliest of the
following events:
(i) When the terms of such notice specify an expiration date at
which time the employer's obligation to that party under Sec. Sec.
655.534 and 655.535 of this part shall recommence;
(ii) When retracted pursuant to paragraph (a)(4) of this section; or
(iii) Upon the expiration of the validity of the attestation.
(b) Documentation. To substantiate the requirement in paragraph (a)
of
[[Page 394]]
this section, an employer shall develop and maintain documentation to
meet the employer's burden of proof under the first attestation element.
The employer shall retain records of all requests for dispatch of United
States longshore workers to perform the longshore work attested to. Such
documentation shall consist of letters, telephone logs, facsimiles or
other memoranda to show that, before using alien crewmembers to perform
longshore work, the employer made a bona fide request for United States
longshore workers who are qualified and available in sufficient numbers
to perform the longshore activity. At a minimum, such documentation
shall include the date the request was made, the name and telephone
number of the particular individual(s) to whom the request for dispatch
was directed, and the number and composition of full work units
requested. Further, whenever any party has provided written notice to
the employer under paragraph (a)(3) of this section, the employer shall
retain the notice for the period of time specified in Sec. 655.533 of
this part, and, if appropriate, any subsequent notice by that party that
it is prepared to make available United States longshore workers at the
times and locations attested to.
Sec. 655.535 The second attestation element for locations in Alaska:
Employment of United States longshore workers.
(a) The second attestation element shall be satisfied when the
employer signs Form ETA 9033-A, attesting that during the validity
period of the attestation, the employer will employ all United States
longshore workers made available in response to the request for dispatch
who, in compliance with applicable industry standards in the State of
Alaska, including safety considerations, are qualified and available in
sufficient numbers and are needed to perform the longshore activity at
the particular time and location attested to.
(1) In no case shall an employer filing an attestation be required
to hire less than a full work unit of United States longshore workers
needed to perform the longshore activity nor be required to provide
overnight accommodations for the longshore workers while employed. For
purposes of this section, ``full work unit'' means the full complement
of longshore workers needed to perform the longshore activity, as
determined by industry standards in the State of Alaska, including
safety considerations. Where the makeup of a full work unit is covered
by one or more collective bargaining agreements in effect at the time
and location where longshore work is to be performed, the provisions of
such agreement(s) shall be deemed to be in conformance with industry
standards in the State of Alaska.
(2) In no case shall an employer be required to provide
transportation to the vessel where the longshore work is to be
performed, except where:
(i) Surface transportation is available; for purposes of this
section, ``surface transportation'' means a tugboat or other vessel
which is appropriately insured, operated by licensed personnel, and
capable of safely transporting U.S. longshore workers from shore to a
vessel on which longshore work is to be performed;
(ii) Such transportation may be safely accomplished; and
(iii)(A) Travel time to the vessel does not exceed one-half hour
each way; and
(B) Travel distance to the vessel from the point of embarkation does
not exceed 5 miles; for purposes of this section, ``point of
embarkation'' means a dock or landing at which U.S. longshore workers
may be safely boarded for transport from shore to a vessel on which
longshore work is to be performed; or
(C) In the cases of Wide Bay, Alaska, and Klawock/Craig, Alaska,
travel time does not exceed 45 minutes each way and travel distance to
the vessel from the point of embarkation does not exceed 7.5 miles,
unless the party responding to the request for dispatch agrees to lesser
time and distance specifications.
(3) If a United States longshore worker is capable of getting to and
from the vessel where longshore work is to be performed when the vessel
is beyond the time and distance limitations specified in paragraph
(a)(2)(iii) of this section, and where all of the other criteria
governing the employment of United
[[Page 395]]
States longshore workers under this subpart are met (e.g., ``qualified
and available in sufficient numbers''), the employer is still obligated
to employ the worker to perform the longshore activity. In such
instance, however, the employer shall not be required to provide such
transportation nor to reimburse the longshore worker for the cost
incurred in transport to and from the vessel.
(4) Where an employer is required to provide transportation to the
vessel because it is within the time and distance limitations specified
in (a)(2)(iii) of this section, the employer also shall be required to
provide return transportation to the point of embarkation.
(b) Documentation. To substantiate the requirement in paragraph (a)
of this section, an employer shall develop and maintain documentation to
meet the employer's burden of proof. Such documentation shall include
records of payments to contract stevedoring companies or private dock
operators, payroll records for United States longshore workers employed,
or other documentation to show clearly that the employer has met its
obligation to employ all United States longshore workers made available
in response to a request for dispatch who are qualified and available in
sufficient numbers. The documentation shall specify the number of full
work units employed pursuant to this section, the composition of such
full work units (i.e., number of workers by job title), and the date(s)
and location(s) where the longshore work was performed. The employer
also shall develop and maintain documentation concerning the provision
of transportation from the point of embarkation to the vessel on which
longshore work is to be performed. Each time one or more United States
longshore workers are dispatched in response to the request under Sec.
655.534, the employer shall retain a written record of whether
transportation to the vessel was provided and the time and distance from
the point of embarkation to the vessel.
Sec. 655.536 The third attestation element for locations in Alaska: No
intention or design to influence bargaining representative
election.
(a) The employer shall attest that use of alien crewmembers to
perform the longshore activity specified on the Form ETA 9033-A is not
intended or designed to influence an election of a bargaining
representative for workers in the State of Alaska.
(b) Documentation. The employer need not develop nor maintain
documentation to substantiate the statement referenced in paragraph (a)
of this section. In the case of an investigation, however, the employer
has the burden of proof to show that the use of alien crewmembers to
perform the longshore activity specified on the Form ETA 9033-A was not
intended nor designed to influence an election of a bargaining
representative for workers in the State of Alaska.
Sec. 655.537 The fourth attestation element for locations in Alaska:
Notice of filing.
(a)(1) The employer shall attest that at the time of filing the
attestation, notice of filing has been provided to:
(i) Labor organizations which have been recognized as exclusive
bargaining representatives of United States longshore workers within the
meaning of the National Labor Relations Act (29 U.S.C. 141 et seq.) and
which make available or intend to make available workers to the
particular location where the longshore work is to be performed;
(ii) Contract stevedoring companies which employ or intend to employ
United States longshore workers at the location where the longshore work
is to be performed; and
(iii) Operators of private docks at which the employer will use
longshore workers.
(2) The notices provided under paragraph (a)(1) of this section
shall include a copy of the Form ETA 9033-A to be submitted to ETA,
shall provide information concerning the availability of supporting
documents for public examination at the national office of ETA, and
shall include the following statement: ``Complaints alleging a
misrepresentation of material facts in the
[[Page 396]]
attestation and/or failure to comply with the terms of the attestation
may be filed with any office of the Wage and Hour Division of the United
States Department of Labor.''
(b) The employer shall request a copy of the Certificate of
Compliance issued by the district director of the Office of Workers'
Compensation Programs under section 37 of the Longshore and Harbor
Workers' Compensation Act (33 U.S.C. 932) from the parties to whom
notice is provided pursuant to paragraphs (a)(1) (ii) and (iii) of this
section. An employer's obligation to make a bona fide request for
dispatch of U.S. longshore workers under Sec. 655.534 of this part
before using alien crewmembers to perform the longshore work attested to
shall commence upon receipt of the copy of the Certificate of
Compliance.
(c) Documentation. The employer shall develop and maintain
documentation sufficient to meet its burden of proving the validity of
the statement referenced in paragraphs (a) and (b) of this section and
attested to on the Form ETA 9033-A. Such documentation shall include a
copy of the notices provided, as required by paragraph (a)(1) of this
section, and shall be submitted to ETA along with the Form ETA 9033-A.
Sec. 655.538 Actions on attestations submitted for filing for
locations in Alaska.
Once an attestation has been received from an employer, a
determination shall be made by the Certifying Officer whether to accept
the attestation for filing or return it. The Certifying Officer may
request additional explanation and/or documentation from the employer in
making this determination. An attestation which is properly filled out
and which includes accompanying documentation for the requirement set
forth at Sec. 655.537 of this part shall be accepted for filing by ETA
on the date it is signed by the Certifying Officer unless it falls
within one of the categories set forth in paragraph (b) of this section.
Once an attestation is accepted for filing, ETA shall then follow the
procedures set forth in paragraph (a)(1) of this section. Upon
acceptance of the employer's attestation by ETA, the attestation and
accompanying documentation shall be forwarded to and be available for
public examination at the ETA national office in a timely manner. ETA
shall not consider information contesting an attestation received by ETA
prior to the determination to accept or return the attestation for
filing. Such information shall not be made a part of ETA's
administrative record on the attestation, but shall be referred to ESA
to be processed as a complaint pursuant to subpart G of this part if the
attestation is accepted by ETA for filing.
(a) Acceptance. (1) If the attestation is properly filled out and
includes accompanying documentation for the requirement set forth at
Sec. 655.537, and does not fall within one of the categories set forth
at paragraph (b) of this section, ETA shall accept the attestation for
filing, provide notification to the DHS office having jurisdiction over
the location where longshore work will be performed, and return to the
employer, or the employer's agent or representative at a U.S. address,
one copy of the attestation form submitted by the employer, with ETA's
acceptance indicated thereon. Before using alien crewmembers to perform
the longshore work attested to on Form ETA 9033-A, the employer shall
make a bona fide request for and employ United States longshore workers
who are qualified and available in sufficient numbers pursuant to
Sec. Sec. 655.534 and 655.535. Where such a request for dispatch of
United States longshore workers is unsuccessful, either in whole or in
part, any use of alien crewmembers to perform longshore activity shall
be in accordance with DHS regulations.
(2) DOL is not the guarantor of the accuracy, truthfulness or
adequacy of an attestation accepted for filing.
(b) Unacceptable attestations. ETA shall not accept an attestation
for filing and shall return such attestation to the employer, or the
employer's agent or representative at a U.S. address, when any one of
the following conditions exists:
(1) When the Form ETA 9033-A is not properly filled out. Examples of
improperly filled out Form ETA 9033-A's include instances where the
employer has neglected to check all the necessary boxes, where the
employer has
[[Page 397]]
failed to include the name of any port, city, or other geographical
reference point where longshore work is to be performed, or where the
employer has failed to sign the attestation or to designate an agent in
the United States.
(2) When the Form ETA 9033-A with accompanying documentation is not
received by ETA at least 30 days prior to the first performance of the
longshore activity, unless the employer is claiming that it could not
have reasonably anticipated the need to file the attestation for that
location at that time, and has included documentation which supports
this contention, and ETA has found the claim to be valid.
(3) When the Form ETA 9033-A does not include accompanying
documentation for the requirement set forth at Sec. 655.537.
(4) When the accompanying documentation submitted by the employer
and required by Sec. 655.537, on its face, is inconsistent with that
section. Examples of such a situation include an instance where the Form
ETA 9033-A indicates that the longshore work will be performed at a
particular private dock and the documentation required under the notice
attestation element indicates that notice was provided to an operator of
a different private dock, or where the longshore work is to be performed
at a particular time and location in the State of Alaska and the notice
of filing provided to qualified labor organizations and contract
stevedoring companies indicates that the longshore work is to be
performed at a different time and/or location.
(5) When the Administrator, Wage and Hour Division, has notified
ETA, in writing, after an investigation pursuant to subpart G of this
part, that a cease and desist order has been issued pursuant to subpart
G of this part, with respect to the attesting employer's performance of
longshore work at a particular location in the State of Alaska, in
violation of a previously accepted attestation.
(6) When the Administrator, Wage and Hour Division, has notified
ETA, in writing, after an investigation pursuant to subpart G of this
part, that the particular employer has misrepresented or failed to
comply with an attestation previously submitted and accepted for filing,
but in no case for a period of more than one year after the date of the
Administrator's notice and provided that DHS has not advised ETA that
the prohibition is in effect for a lesser period.
(7) When the Administrator, Wage and Hour Division, has notified
ETA, in writing, that the employer has failed to comply with any
penalty, sanction, or other remedy assessed in a final agency action
following an investigation by the Wage and Hour Division pursuant to
subpart G of this part.
(c) Resubmission. If the attestation is not accepted for filing
pursuant to paragraph (b) of this section, ETA shall return to the
employer, or the employer's agent or representative, at a U.S. address,
the attestation form and accompanying documentation submitted by the
employer. ETA shall notify the employer, in writing, of the reason(s)
that the attestation is unacceptable. When an attestation is found to be
unacceptable pursuant to paragraph (b) (1), (2), (3), or (4) of this
section, the employer may resubmit the corrected attestation with the
proper documentation. When an attestation is found to be unacceptable
pursuant to paragraph (b) (5), (6), or (7) of this section and returned,
such action shall be the final decision of the Secretary of Labor.
Sec. 655.539 Effective date and validity of filed attestations for
locations in Alaska.
An attestation is filed and effective as of the date it is accepted
and signed by the Certifying Officer. Such attestation is valid for the
12-month period beginning on the date of acceptance for filing, unless
suspended or invalidated pursuant to Sec. 655.540 of this part. The
filed attestation expires at the end of the 12-month period of validity.
Sec. 655.540 Suspension or invalidation of filed attestations for
locations in Alaska.
Suspension or invalidation of an attestation may result from
enforcement action(s) under subpart G of this part (i.e.,
investigation(s) conducted by the Administrator or cease and desist
order(s) issued by the Administrator
[[Page 398]]
regarding the employer's misrepresentation in or failure to carry out
its attestation); or from a discovery by ETA that it made an error in
accepting the attestation because such attestation falls within one of
the categories set forth in Sec. 655.538(b).
(a) Result of Wage and Hour Division action. Upon the determination
of a violation under subpart G of this part, the Administrator shall,
pursuant to Sec. 655.665(b), notify the DHS of the violation and of the
Administrator's notice to ETA.
(b) Result of ETA action. If, after accepting an attestation for
filing, ETA finds that the attestation is unacceptable because it falls
within one of the categories set forth at Sec. 655.538(b) and, as a
result, ETA suspends or invalidates the attestation, ETA shall notify
the DHS of such suspension or invalidation and shall return a copy of
the attestation form to the employer, or the employer's agent or
representative at a U.S. address. ETA shall notify the employer, in
writing, of the reason(s) that the attestation is suspended or
invalidated.
Sec. 655.541 Withdrawal of accepted attestations for locations in
Alaska.
(a) An employer who has submitted an attestation which has been
accepted for filing may withdraw such attestation at any time before the
12-month period of its validity terminates, unless the Administrator has
found reasonable cause under subpart G to commence an investigation of
the particular attestation. Such withdrawal may be advisable, for
example, when the employer learns that the country in which the vessel
is registered and of which nationals of such country hold a majority of
the ownership interest in the vessel has been removed from the non-
reciprocity list (which means, for purposes of this section,
Prohibitions on longshore work by U.S. nationals; listing by country at
22 CFR 89.1). In that event, an attestation would no longer be required
under subpart F of this part, since upon being removed from the non-
reciprocity list the performance of longshore work by alien crewmembers
would be permitted under the reciprocity exception at sec. 258(e) of the
Act (8 U.S.C. 1288(e)). Requests for withdrawals shall be in writing and
shall be directed to the Certifying Officer.
(b) Withdrawal of an attestation shall not affect an employer's
liability with respect to any failure to meet the conditions attested to
which took place before the withdrawal, or for misrepresentations in an
attestation. However, if an employer has not yet performed the longshore
activities at the location(s) in question, the Administrator shall not
find reasonable cause to investigate unless it is alleged, and there is
reasonable cause to believe, that the employer has made
misrepresentations in the attestation or documentation thereof, or that
the employer has not in fact given the notice attested to.
Public Access
Sec. 655.550 Public access.
(a) Public examination at ETA. ETA shall make available for public
examination in Washington, DC, a list of employers which have filed
attestations under this subpart, and for each such employer, a copy of
the employer's attestation and accompanying documentation it has
received.
(b) Notice to public. ETA periodically shall publish a list in the
Federal Register identifying under this subpart employers which have
submitted attestations; employers which have attestations on file; and
employers which have submitted attestations which have been found
unacceptable for filing.
(Approved by the Office of Management and Budget under Control No. 1205-
0309)
Appendix A to Subpart F of Part 655--U.S. Seaports
The list of 224 seaports includes all major and most smaller ports
serving ocean and Great Lakes commerce.
North Atlantic Range
Bucksport, ME
Eastport, ME
Portland, ME
Searsport, ME
Portsmouth, NH
Boston, MA
Fall River, MA
New Bedford, MA
Providence, RI
Bridgeport, CT
New Haven, CT
New London, CT
Albany, NY
New York, NY/NJ
Camden, NJ
Gloucester City, NJ
Paulsboro, NJ
Chester, PA
[[Page 399]]
Marcus Hook, PA
Philadelphia, PA
Delaware City, DE
Wilmington, DE
Baltimore, MD
Cambridge, MD
Alexandria, VA
Chesapeake, VA
Hopewell, VA
Newport News, VA
Norfolk, VA
Portsmouth, VA
Richmond, VA
South Atlantic Range
Morehead City, NC
Southport, NC
Wilmington, NC
Charleston, SC
Georgetown, SC
Port Royal, SC
Brunswick, GA
Savannah, GA
St. Mary, GA
Cocoa, FL
Fernandina Beach, FL
Fort Lauderdale, FL
Fort Pierce, FL
Jacksonville, FL
Miami, FL
Palm Beach, FL
Port Canaveral, FL
Port Everglades, FL
Riviera, FL
Aguadilla, PR
Ceiba, PR
Guanica, PR
Guayanilla, PR
Humacao, PR
Jobos, PR
Mayaguez, PR
Ponce, PR
San Juan, PR
Vieques, PR
Yabucoa, PR
Alucroix, VI
Charlotte Amalie, VI
Christiansted, VI
Frederiksted, VI
Limetree Bay, VI
North Pacific Range
Astoria, OR
Bandon, OR
Columbia City, OR
Coos Bay, OR
Mapleton, OR
Newport, OR
Portland, OR
Rainier, OR
Reedsport, OR
St. Helens, OR
Toledo, OR
Anacortes, WA
Bellingham, WA
Edmonds (Edwards Point), WA
Everett, WA
Ferndale, WA
Friday Harbor, WA
Grays Harbor, WA
Kalama, WA
Longview, WA
Olympia, WA
Point Wells, WA
Portage, WA
Port Angeles, WA
Port Gamble, WA
Port Townsend, WA
Raymond, WA
Seattle, WA
Tacoma, WA
Vancouver, WA
Willapa Harbor, WA
Winslow, WA
Great Lakes Range
Duluth, MN
Silver Bay, MN
Green Bay, WI
Kenosha, WI
Manitowoc, WI
Milwaukee, WI
Sheboygan, WI
Superior, WI
Alpena, MI
Bay City, MI
Detroit, MI
De Tour Village, MI
Essexville, MI
Ferrysburg, MI
Grand Haven, MI
Marine City, MI
Muskegon, MI
Port Huron, MI
Presque Isle, MI
Rogers City, MI
Saginaw, MI
Sault Ste Marie, MI
Chicago, IL
Ashtabula, OH
Cincinnati, OH
Cleveland, OH
Conneaut, OH
Fairport, OH
Huron, OH
Lorain, OH
Sandusky, OH
Toledo, OH
Erie, PA
Buffalo, NY
Odgensburg, NY
Oswego, NY
Rochester, NY
Burns Harbor, IN
E. Chicago, IN
Gary, IN
Gulf Coast Range
Panama City, FL
Pensacola, FL
Port Manatee, FL
Port St. Joe, FL
Tampa, FL
Mobile, AL
Gulfport, MS
Pascagoula, MS
Baton Rouge, LA
Gretna, LA
Lake Charles, LA
Louisiana Offshore Oil Port, LA
New Orleans, LA
Beaumont, TX
Brownsville, TX
Corpus Christi, TX
Freeport, TX
Galveston, TX
Harbor Island, TX
Houston, TX
Orange, TX
Port Arthur, TX
Port Isabel, TX
Port Lavaca, TX
Port Neches, TX
Sabine, TX
Texas City, TX
South Pacific Range
Alameda, CA
Antioch, CA
Benicia, CA
Carlsbad, CA
Carpinteria, CA
Crockett, CA
El Segundo, CA
Eureka, CA
Estero Bay, CA
Gaviota, CA
Huntington Beach, CA
Long Beach, CA
Los Angeles, CA
Mandalay Beach, CA
Martinez, CA
Moss Landing, CA
Oakland, CA
Pittsburg, CA
Port Costa, CA
Port Hueneme, CA
Port San Luis, CA
Redwood City, CA
Richmond, CA
Sacramento, CA
San Diego, CA
San Francisco, CA
Selby, CA
Stockton, CA
Vallejo, CA
Ventura, CA
Barbers Point, HI
Hilo, HI
Honolulu, HI
Kahului, HI
Kaunakakai, HI
Kawaihae, HI
Nawiliwili, HI
Port Allen, HI
Subpart G_Enforcement of the Limitations Imposed on Employers Using
Alien Crewmembers for Longshore Activities in U.S. Ports
Source: 60 FR 3969, 3977, Jan. 19, 1995, unless otherwise noted.
Sec. 655.600 Enforcement authority of Administrator, Wage and Hour
Division.
(a) The Administrator shall perform all the Secretary's
investigative and enforcement functions under section 258 of the INA (8
U.S.C. 1288) and subparts F and G of this part.
(b) The Administrator, pursuant to a complaint, shall conduct such
investigations as may be appropriate and, in connection therewith, enter
and inspect such places and such records (and make transcriptions or
copies thereof), question such persons and gather such information as
deemed necessary by the Administrator to determine compliance regarding
the matters which are the subject of the investigation.
[[Page 400]]
(c) An employer being investigated shall make available to the
Administrator such records, information, persons, and places as the
Administrator deems appropriate to copy, transcribe, question, or
inspect. No employer subject to the provisions of section 258 of the INA
(8 U.S.C. 1288) and subparts F and G of this part shall interfere with
any official of the Department of Labor performing an investigation,
inspection or law enforcement function pursuant to 8 U.S.C. 1288 or
subpart F or G of this part. Any such interference shall be a violation
of the attestation and subparts F and G of this part, and the
Administrator may take such further actions as the Administrator
considers appropriate. (Note: Federal criminal statutes prohibit certain
interference with a Federal officer in the performance of official
duties. 18 U.S.C. 111 and 18 U.S.C. 1114.)
(d)(1) An employer subject to subparts F and G of this part shall at
all times cooperate in administrative and enforcement proceedings. No
employer shall intimidate, threaten, restrain, coerce, blacklist,
discharge, retaliate, or in any manner discriminate against any person
because such person has:
(i) Filed a complaint or appeal under or related to section 258 of
the INA (8 U.S.C. 1288) or subpart F or G of this part;
(ii) Testified or is about to testify in any proceeding under or
related to section 258 of the INA (8 U.S.C. 1288) or subpart F or G of
this part;
(iii) Exercised or asserted on behalf of himself or herself or
others any right or protection afforded by section 258 of the INA (8
U.S.C. 1288) or subpart F or G of this part.
(iv) Consulted with an employee of a legal assistance program or an
attorney on matters related to section 258 of the Act or to subpart F or
G of this part or any other DOL regulation promulgated pursuant to 8
U.S.C. 1288.
(2) In the event of such intimidation or restraint as are described
in paragraph (d)(1) of this section, the conduct shall be a violation of
the attestation and subparts F and G of this part, and the Administrator
may take such further actions as the Administrator considers
appropriate.
(e) The Administrator shall, to the extent possible under existing
law, protect the confidentiality of any person who provides information
to the Department in confidence in the course of an investigation or
otherwise under subpart F or G of this part. However, confidentiality
will not be afforded to the complainant or to information provided by
the complainant.
Sec. 655.605 Complaints and investigative procedures.
(a) The Administrator, through an investigation, shall determine
whether a basis exists to make a finding that:
(1) An attesting employer has--
(i) Failed to meet conditions attested to; or
(ii) Misrepresented a material fact in an attestation.
(Note: Federal criminal statutes provide penalties of up to $10,000
and/or imprisonment of up to 5 years for knowing and willful submission
of false statements to the Federal Government. 18 U.S.C. 1001; see also
18 U.S.C. 1546.); or
(2) In the case of an employer operating under the automated vessel
exception to the prohibition on utilizing alien crewmembers to perform
longshore activity(ies) at a U.S. port, the employer--
(i) Is utilizing alien crewmember(s) to perform longshore
activity(ies) at a port where the prevailing practice has not been to
use such workers for such activity(ies); or
(ii) Is utilizing alien crewmember(s) to perform longshore
activities:
(A) During a strike or lockout in the course of a labor dispute at
the U.S. port; and/or
(B) With intent or design to influence an election of a bargaining
representative for workers at the U.S. port; or
(3) An employer failed to comply in any other manner with the
provisions of subpart F or G of this part.
(b) Any aggrieved person or organization may file a complaint of a
violation of the provisions of subpart F or G of this part.
(1) No particular form of complaint is required, except that the
complaint shall be written or, if oral, shall be reduced to writing by
the Wage and Hour Division official who receives the complaint.
[[Page 401]]
(2) The complaint shall set forth sufficient facts for the
Administrator to determine--
(i) Whether, in the case of an attesting employer, there is
reasonable cause to believe that particular part or parts of the
attestation or regulations have been violated; or
(ii) Whether, in the case of an employer claiming the automated
vessel exception, the preponderance of the evidence submitted by any
interested party shows that conditions exist that would require the
employer to file an attestation.
(3) The complaint may be submitted to any local Wage and Hour
Division office; the addresses of such offices are found in local
telephone directories. The office or person receiving such a complaint
shall refer it to the office of the Wage and Hour Division administering
the area in which the reported violation is alleged to have occurred.
(c) The Administrator shall determine whether there is reasonable
cause to believe that the complaint warrants investigation. If the
Administrator determines that the complaint fails to present reasonable
cause for an investigation, the Administrator shall so notify the
complainant, who may submit a new complaint, with such additional
information as may be necessary. There shall be no hearing pursuant to
Sec. 655.625 for the Administrator's determination not to conduct an
investigation. If the Administrator determines that an investigation on
the complaint is warranted, the investigation shall be conducted and a
determination issued within 180 calendar days of the Administrator's
receipt of the complaint, or later for good cause shown.
(d) In conducting an investigation, the Administrator may consider
and make part of the investigation file any evidence or materials that
have been compiled in any previous investigation regarding the same or a
closely related matter.
(e) In conducting an investigation under an attestation, the
Administrator shall take into consideration the employer's burden to
provide facts and evidence to establish the matters asserted. In
conducting an investigation regarding an employer's eligibility for the
automated vessel exception, the Administrator shall not impose the
burden of proof on the employer, but shall consider all evidence from
any interested party in determining whether the employer is not eligible
for the exception.
(f) In an investigation regarding the use of alien crewmembers to
perform longshore activity(ies) in a U.S. port (whether by an attesting
employer or by an employer claiming the automated vessel exception), the
Administrator shall accept as conclusive proof a previous Departmental
determination, published in the Federal Register pursuant to Sec.
655.670, establishing that such use of alien crewmembers is not the
prevailing practice for the activity(ies) and U.S. port at issue. The
Administrator shall give appropriate weight to a previous Departmental
determination published in the Federal Register pursuant to Sec.
655.670, establishing that at the time of such determination, such use
of alien crewmembers was the prevailing practice for the activity(ies)
and U.S. port at issue.
(g) When an investigation has been conducted, the Administrator
shall, within the time period specified in paragraph (c) of this
section, issue a written determination as to whether a basis exists to
make a finding stated in paragraph (a) of this section. The
determination shall be issued and an opportunity for a hearing shall be
afforded in accordance with the procedures specified in Sec. 655.625(d)
of this part.
Sec. 655.610 Automated vessel exception to prohibition on utilization
of alien crewmember(s) to perform longshore activity(ies) at a
U.S. port.
(a) The Act establishes a rebuttable presumption that the prevailing
practice in U.S. ports is for automated vessels (i.e., vessels equipped
with automated self- unloading conveyor belts or vacuum-actuated
systems) to use alien crewmembers to perform longshore activity(ies)
through the use of the self-unloading equipment. An employer claiming
the automated vessel exception does not have the burden of establishing
eligibility for the exception.
[[Page 402]]
(b) In the event of a complaint asserting that an employer claiming
the automated vessel exception is not eligible for such exception, the
Administrator shall determine whether the preponderance of the evidence
submitted by any interested party shows that:
(1) It is not the prevailing practice at the U.S. port to use alien
crewmember(s) to perform the longshore activity(ies) through the use of
the self-unloading equipment; or
(2) The employer is using alien crewmembers to perform longshore
activity(ies)--
(i) During a strike or lockout in the course of a labor dispute at
the U.S. port; and/or
(ii) With intent or design to influence an election of a bargaining
representative for workers at the U.S. port.
(c) In making the prevailing practice determination required by
paragraph (b)(1) of this section, the Administrator shall determine
whether, in the 12-month period preceding the date of the
Administrator's receipt of the complaint, one of the following
conditions existed:
(1) Over fifty percent of the automated vessels docking at the port
used alien crewmembers for the activity (for purposes of this paragraph
(c)(1) of this section, a vessel shall be counted each time it docks at
the particular port); or
(2) Alien crewmembers made up over fifty percent of the workers who
performed the activity with respect to such automated vessels.
(d) An interested party, complaining that the automated vessel
exception is not applicable to a particular employer, shall provide to
the Administrator evidence such as:
(1) A written summary of a survey of the experience of masters of
automated vessels which entered the local port in the previous year,
describing the practice in the port as to the use of alien crewmembers;
(2) A letter, affidavit, or other written statement from an
appropriate local port authority regarding the use of alien crewmembers
to perform the longshore activity at the port in the previous year;
(3) Written statements from collective bargaining representatives
and/or shipping agents with direct knowledge of practices regarding the
use of alien crewmembers at the port in the previous year.
Sec. 655.615 Cease and desist order.
(a) If the Administrator determines that reasonable cause exists to
conduct an investigation with respect to an attestation, the complainant
may request that the Administrator enter a cease and desist order
against the employer against whom the complaint is lodged.
(1) The request for a cease and desist order may be filed along with
the complaint, or may be filed subsequently. The request, including all
accompanying documents, shall be filed in duplicate with the same Wage
and Hour Division office that received the complaint.
(2) No particular form is prescribed for a request for a cease and
desist order pursuant to this paragraph (a). However, any such request
shall:
(i) Be dated;
(ii) Be typewritten or legibly written;
(iii) Specify the attestation provision(s) with respect to which the
employer allegedly failed to comply and/or submitted
misrepresentation(s) of material fact(s);
(iv) Be accompanied by evidence to substantiate the allegation(s) of
noncompliance and/or misrepresentation;
(v) Be signed by the complaining party making the request or by the
authorized representative of such party;
(vi) Include the address at which such complaining party or
authorized representative desires to receive further communications
relating thereto.
(3) Upon receipt of a request for a cease and desist order, the
Administrator shall promptly notify the employer of the request. The
Administrator's notice shall:
(i) Inform the employer that it may respond to the request and meet
with a Wage and Hour Division official within 14 calendar days of the
date of the notice;
(ii) Be served upon the employer by facsimile transmission, in
person, or by certified or regular mail, at the address of the U.S.
agent stated on the employer's attestation;
(iii) Be accompanied by copies of the complaint, the request for a
cease and
[[Page 403]]
desist order, the evidence submitted by the complainant, and any
evidence from other investigation(s) of the same or a closely related
matter which the Administrator may incorporate into the record. (Any
such evidence from other investigation(s) shall also be made available
for examination by the complaining party at the Wage and Hour Division
office which issued the notice.)
(4) No particular form is prescribed for the employer's response to
the complaining party's request for a cease and desist order under this
paragraph (a), however, any such response shall:
(i) Be dated;
(ii) Be submitted by facsimile transmission, in person, by certified
or regular mail, or by courier service to the Wage and Hour Division
office which issued the notice of the request;
(iii) Be received by the appropriate Wage and Hour Division office
no later than 14 calendar days from the date of the notice of the
request;
(iv) Be typewritten or legibly written;
(v) Explain, in any detail desired by the employer, the employer's
grounds or reasons as to why the Administrator should deny the requested
cease and desist order;
(vi) Be accompanied by evidence to substantiate the employer's
grounds or reasons as to why the Administrator should deny the requested
cease and desist order;
(vii) Specify whether the employer desires an informal meeting with
a Wage and Hour Division official;
(viii) Be signed by the employer or its authorized representative;
and
(ix) Include the address at which the employer or its authorized
representative desires to receive further communications relating
thereto, if such address is different from the address of the U.S. agent
stated on the attestation.
(5) In the event the employer requests a meeting with a Wage and
Hour Division official, the Administrator shall provide the employer and
the complaining party, or their authorized representatives, an
opportunity for such a meeting to present their views regarding the
evidence and arguments submitted by the parties. This shall be an
informal meeting, not subject to any procedural rules. The meeting shall
be held within the 14 calendar days permitted for the employer's
response to the request for the cease and desist order, and shall be
held at a time and place set by the Wage and Hour Division official, who
shall notify the parties.
(6) After receipt of the employer's timely response and after any
informal meeting which may have been held with the parties, the
Administrator shall promptly issue a written determination, either
denying the request or issuing a cease and desist order. In making the
determination, the Administrator shall consider all the evidence
submitted, including any evidence from the same or a closely related
matter which the Administrator has incorporated into the record and
provided to the employer. If the Administrator determines that the
complaining party's position is supported by a preponderance of the
evidence submitted, the Administrator shall order that the employer
cease the activities specified in the determination, until the
completion of the Administrator's investigation and any subsequent
proceedings pursuant to Sec. 655.625 of this part, unless the
prohibition is lifted by subsequent order of the Administrator because
it is later determined that the employer's position was correct. While
the cease and desist order is in effect, ETA shall suspend the subject
attestation, either in whole or in part, and shall not accept any
subsequent attestation from the employer for the activity(ies) and U.S.
port or location in the State of Alaska at issue.
(7) The Administrator's cease and desist order shall be served on
the employer at the address of its designated U.S. based representative
or at the address specified in the employer's response, by facsimile
transmission, personal service, or certified mail.
(b) If the Administrator determines that reasonable cause exists to
conduct an investigation with respect to a complaint that a non-
attesting employer is not entitled to the automated vessel exception to
the requirement for the filing of an attestation, a complaining party
may request that the Administrator enter a cease and desist order
[[Page 404]]
against the employer against whom the complaint is lodged.
(1) The request for a cease and desist order may be filed along with
the complaint, or may be filed subsequently. The request, including all
accompanying documents, shall be filed in duplicate with the same Wage
and Hour Division office that received the complaint.
(2) No particular form is prescribed for a request for a cease and
desist order pursuant to this paragraph. However, any such request
shall:
(i) Be dated;
(ii) Be typewritten or legibly written;
(iii) Specify the circumstances which allegedly require that the
employer be denied the use of the automated vessel exception;
(iv) Be accompanied by evidence to substantiate the allegation(s);
(v) Be signed by the complaining party making the request or by the
authorized representative of such party; and
(vi) Include the address at which such complaining party or
authorized representative desires to receive further communications
relating thereto.
(3) Upon receipt of a request for a cease and desist order, the
Administrator shall notify the employer of the request. The
Administrator's notice shall:
(i) Inform the employer that it may respond to the request and meet
with a Wage and Hour Division official within 14 calendar days of the
date of the notice;
(ii) Be served upon the employer by facsimile transmission, in
person, or by certified or regular mail, at the employer's last known
address; and
(iii) Be accompanied by copies of the complaint, the request for a
cease and desist order, the evidence submitted by the complainant, and
any evidence from other investigation(s) of the same or a closely
related matter which the Administrator may incorporate into the record.
(Any such evidence from other investigation(s) shall also be made
available for examination by the complaining party at the Wage and Hour
Division office which issued the notice.)
(4) No particular form is prescribed for the employer's response to
the complaining party's request for a cease and desist order under this
paragraph (b). However, any such response shall:
(i) Be dated;
(ii) Be submitted by facsimile transmission, in person, by certified
or regular mail, or by courier service to the Wage and Hour Division
office which issued the notice of the request;
(iii) Be received by the appropriate Wage and Hour Division office
no later than 14 calendar days from the date of the notice of the
request;
(iv) Be typewritten or legibly written;
(v) Explain, in any detail desired by the employer, the employer's
grounds or reasons as to why the Administrator should deny the requested
cease and desist order;
(vi) Be accompanied by evidence to substantiate the employer's
grounds or reasons as to why the Administrator should deny the requested
cease and desist order;
(vii) Specify whether the employer desires an informal meeting with
a Wage and Hour Division official;
(viii) Be signed by the employer or its authorized representative;
and
(ix) Include the address at which the employer or its authorized
representative desires to receive further communications relating
thereto.
(5) In the event the employer requests a meeting with a Wage and
Hour Division official, the Administrator shall provide the employer and
the complaining party, or their authorized representatives, an
opportunity for such a meeting to present their views regarding the
evidence and arguments submitted by the parties. This shall be an
informal meeting, not subject to any procedural rules. The meeting shall
be held within the 14 calendar days permitted for the employer's
response to the request for the cease and desist order, and shall be
held at a time and place set by the Wage and Hour Division official, who
shall notify the parties.
(6) After receipt of the employer's timely response and after any
informal meeting which may have been held with the parties, the
Administrator shall promptly issue a written determination, either
denying the request or issuing a cease and desist order. If the
[[Page 405]]
Administrator determines that the complaining party's position is
supported by a preponderance of the evidence submitted, the
Administrator shall order that the employer cease the use of alien
crewmembers to perform the longshore activity(ies) specified in the
order. In making the determination, the Administrator shall consider all
the evidence submitted, including any evidence from the same or a
closely related matter which the Administrator has incorporated into the
record and provided to the employer. The order shall remain in effect
until the completion of the investigation and any subsequent hearing
proceedings pursuant to Sec. 655.625 of this part, unless the employer
files and maintains on file with ETA an attestation pursuant to Sec.
655.520 of this part or unless the prohibition is lifted by subsequent
order of the Administrator because it is later determined that the
employer's position was correct.
(7) The Administrator's cease and desist order shall be served on
the employer or its designated representative by facsimile transmission,
personal service, or by certified mail at the address specified in the
employer's response or, if no such address was specified, at the
employer's last known address.
Sec. 655.620 Civil money penalties and other remedies.
(a) The Administrator may assess a civil money penalty not to exceed
$5,000 for each alien crewmember with respect to whom there has been a
violation of the attestation or subpart F or G of this part. The
Administrator may also impose appropriate remedy(ies).
(b) In determining the amount of civil money penalty to be assessed,
the Administrator shall consider the type of violation committed and
other relevant factors. The factors which may be considered include, but
are not limited to, the following:
(1) Previous history of violation, or violations, by the employer
under the Act and subpart F or G of this part;
(2) The number of workers affected by the violation or violations;
(3) The gravity of the violation or violations;
(4) Efforts made by the violator in good faith to comply with the
provisions of 8 U.S.C. 1288(c) and subparts F and G of this part;
(5) The violator's explanation of the violation or violations;
(6) The violator's commitment to future compliance; and/or
(7) The extent to which the violator achieved a financial gain due
to the violation, or the potential financial loss, potential injury or
adverse effect with respect to other parties.
(c) The civil money penalty, and any other remedy determined by the
Administrator to be appropriate, are immediately due for payment or
performance upon the assessment by the Administrator, or the decision by
an administrative law judge where a hearing is requested, or the
decision by the Secretary where review is granted. The employer shall
remit the amount of the civil money penalty, by certified check or money
order made payable to the order of ``Wage and Hour Division, Labor.''
The remittance shall be delivered or mailed to the Wage and Hour
Division office for the area in which the violations occurred. The
performance of any other remedy prescribed by the Administrator shall
follow procedures established by the Administrator. The employer's
failure to pay the civil money penalty, or to perform any other remedy
prescribed by the Administrator, shall result in the rejection by ETA of
any future attestation submitted by the employer, until such payment or
performance is accomplished.
Sec. 655.625 Written notice, service and Federal Register publication
of Administrator's determination.
(a) The Administrator's determination, issued pursuant to Sec.
655.605 of this part, shall be served on the complainant, the employer,
and other known interested parties by personal service or by certified
mail at the parties' last known addresses. Where service by certified
mail is not accepted by the party, the Administrator may exercise
discretion to serve the determination by regular mail.
(b) Where the Administrator determines the prevailing practice
regarding
[[Page 406]]
the use of alien crewmember(s) to perform longshore activity(ies) in a
U.S. port (whether the Administrator's investigation involves an
employer operating under an attestation, or under the automated vessel
exception), the Administrator shall, simultaneously with issuance of the
determination, publish in the Federal Register a notice of the
determination. The notice shall identify the activity(ies), the U.S.
port, and the prevailing practice regarding the use of alien
crewmembers. The notice shall also inform interested parties that they
may request a hearing pursuant to Sec. 655.630 of this part, within 15
days of the date of the determination.
(c) The Administrator shall file with the Chief Administrative Law
Judge, U.S. Department of Labor, a copy of the complaint and the
Administrator's determination.
(d) The Administrator's written determination required by Sec.
655.605 of this part shall:
(1) Set forth the determination of the Administrator and the reason
or reasons therefor, and in the case of a finding of violation(s) by an
attesting employer, prescribe any remedies, including the amount of any
civil money penalties assessed and the reason therefor, and/or any other
remedies required for compliance with the employer's attestation.
(2) Inform the interested parties that they may request a hearing
pursuant to Sec. 655.625 of this part.
(3) Inform the interested parties that in the absence of a timely
request for a hearing, received by the Chief Administrative Law Judge
within 15 calendar days of the date of the determination, the
determination of the Administrator shall become final and not
appealable.
(4) Set forth the procedure for requesting a hearing, and give the
address of the Chief Administrative Law Judge (with whom the request
must be filed) and the representative(s) of the Solicitor of Labor (upon
whom copies of the request must be served).
(5) Inform the parties that, pursuant to Sec. 655.665, the
Administrator shall notify ETA and the DHS of the occurrence of a
violation by the attesting employer or of the non-attesting employer's
ineligibility for the automated vessel exception.
Sec. 655.630 Request for hearing.
(a) Any interested party desiring to request an administrative
hearing on a determination issued pursuant to Sec. Sec. 655.605 and
655.625 of this part shall make such request in writing to the Chief
Administrative Law Judge at the address stated in the notice of
determination.
(b) Interested parties may request a hearing in the following
circumstances:
(1) The complainant or any other interested party may request a
hearing where the Administrator determines, after investigation, that
there is no basis for a finding that an attesting employer has committed
violation(s) or that the employer is eligible for the automated vessel
exception. In such a proceeding, the requesting party and the employer
shall be parties; the Administrator may intervene as a party or appear
as amicus curiae at any time in the proceeding, at the Administrator's
discretion.
(2) The employer or any other interested party may request a hearing
where the Administrator determines, after investigation, that there is a
basis for a finding that an attesting employer has committed
violation(s) or that a non- attesting employer is not eligible for the
automated vessel exception. In such a proceeding, the Administrator and
the employer shall be parties.
(c) No particular form is prescribed for any request for hearing
permitted by this section. However, any such request shall:
(1) Be dated;
(2) Be typewritten or legibly written;
(3) Specify the issue or issues stated in the notice of
determination giving rise to such request;
(4) State the specific reason or reasons why the party requesting
the hearing believes such determination is in error;
(5) Be signed by the party making the request or by an authorized
representative of such party; and
[[Page 407]]
(6) Include the address at which such party or authorized
representative desires to receive further communications relating
thereto.
(d) The request for such hearing must be received by the Chief
Administrative Law Judge, at the address stated in the Administrator's
notice of determination, no later than 15 calendar days after the date
of the determination. An interested party that fails to meet this 15-day
deadline for requesting a hearing may thereafter participate in the
proceedings only by consent of the administrative law judge, either
through intervention as a party pursuant to 29 CFR 18.10 (b) through (d)
or through participation as an amicus curiae pursuant to 18 CFR 18.12.
(e) The request may be filed in person, by facsimile transmission,
by certified or regular mail, or by courier service. For the requesting
party's protection, if the request is filed by mail, it should be by
certified mail. If the request is filed by facsimile transmission, the
original of the request, signed by the requestor or authorized
representative, shall be filed within ten days.
(f) Copies of the request for a hearing shall be sent by the
requestor to the Wage and Hour Division official who issued the
Administrator's notice of determination, to the representative(s) of the
Solicitor of Labor identified in the notice of determination, and to all
known interested parties.
Sec. 655.635 Rules of practice for administrative law judge
proceedings.
(a) Except as specifically provided in this subpart, and to the
extent they do not conflict with the provisions of this subpart, the
``Rules of Practice and Procedure for Administrative Hearings Before the
Office of Administrative Law Judges'' established by the Secretary at 29
CFR part 18 shall apply to administrative proceedings under this
subpart.
(b) As provided in the Administrative Procedure Act, 5 U.S.C. 556,
any oral or documentary evidence may be received in proceedings under
this part. The Federal Rules of Evidence and subpart B of the Rules of
Practice and Procedure for Administrative Hearings Before the Office of
Administrative Law Judges (29 CFR part 18, subpart B) shall not apply,
but principles designed to ensure production of relevant and probative
evidence shall guide the admission of evidence. The administrative law
judge may exclude evidence which is immaterial, irrelevant, or unduly
repetitive.
Sec. 655.640 Service and computation of time.
(a) Under this subpart, a party may serve any pleading or document
by regular mail. Service on a party is complete upon mailing to the last
known address or, in the case of the attesting employer, to the
employer's designated representative in the U.S. No additional time for
filing or response is authorized where service is by mail. In the
interest of expeditious proceedings, the administrative law judge may
direct the parties to serve pleadings or documents by a method other
than regular mail.
(b) Two (2) copies of all pleadings and other documents in any
administrative law judge proceeding shall be served on the attorneys for
the Administrator. One copy shall be served on the Associate Solicitor,
Division of Fair Labor Standards, Office of the Solicitor, U.S.
Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210,
and one copy on the attorney representing the Administrator in the
proceeding.
(c) Time will be computed beginning with the day following the
action and includes the last day of the period unless it is a Saturday,
Sunday, or federally-observed holiday, in which case the time period
includes the next business day.
Sec. 655.645 Administrative law judge proceedings.
(a) Upon receipt of a timely request for a hearing filed pursuant to
and in accordance with Sec. 655.630 of this part, the Chief
Administrative Law Judge shall promptly appoint an administrative law
judge to hear the case.
(b) Within seven calendar days following the assignment of the case,
the administrative law judge shall notify all interested parties of the
date, time and place of the hearing. All parties shall be given at least
fourteen calendar days' notice of such hearing.
[[Page 408]]
(c) The date of the hearing shall be not more than 60 calendar days
from the date of the Administrator's determination. Because of the time
constraints imposed by the Act, no requests for postponement shall be
granted except for compelling reasons. Even if such reasons are shown,
no extension of the hearing date beyond 60 days from the date of the
Administrator's determination shall be granted except by consent of all
the parties to the proceeding.
(d) The administrative law judge may prescribe a schedule by which
the parties are permitted to file a prehearing brief or other written
statement of fact or law. Any such brief or statement shall be served
upon each other party in accordance with Sec. 655.640 of this part.
Posthearing briefs will not be permitted except at the request of the
administrative law judge. When permitted, any such brief shall be
limited to the issue or issues specified by the administrative law
judge, shall be due within the time prescribed by the administrative law
judge, and shall be served on each other party in accordance with Sec.
655.640 of this part.
(e) In reaching a decision, the administrative law judge shall, in
accordance with the Act, impose the following burden of proof--
(1) The attesting employer shall have the burden of producing facts
and evidence to establish the matters required by the attestation at
issue;
(2) The burden of proof as to the applicability of the automated
vessel exception shall be on the party to the hearing who is asserting
that the employer is not eligible for the exception.
(f) The administrative law judge proceeding shall not be an appeal
or review of the Administrator's ruling on a request for a cease and
desist order pursuant to Sec. 655.615.
Sec. 655.650 Decision and order of administrative law judge.
(a) Within 90 calendar days after receipt of the transcript of the
hearing, the administrative law judge shall issue a decision. If any
party desires review of the decision, including judicial review, a
petition for Secretary's review thereof shall be filed as provided in
Sec. 655.655 of this subpart. If a petition for review is filed, the
decision of the administrative law judge shall be inoperative unless and
until the Secretary issues an order affirming the decision, or, unless
and until 30 calendar days have passed after the Secretary's receipt of
the petition for review and the Secretary has not issued notice to the
parties that the Secretary will review the administrative law judge's
decision.
(b) The decision of the administrative law judge shall include a
statement of findings and conclusions, with reasons and basis therefor,
upon each material issue presented on the record. The decision shall
also include an appropriate order which may affirm, deny, reverse, or
modify, in whole or in part, the determination of the Administrator; the
reason or reasons for such order shall be stated in the decision. The
administrative law judge shall not render determinations as to the
legality of a regulatory provision or the constitutionality of a
statutory provision.
(c) The decision shall be served on all parties in person or by
certified or regular mail.
Sec. 655.655 Secretary's review of administrative law judge's
decision.
(a) The Administrator or any interested party desiring review of the
decision and order of an administrative law judge shall petition the
Secretary to review the decision and order. To be effective, such
petition shall be received by the Secretary within 30 calendar days of
the date of the decision and order. Copies of the petition shall be
served on all parties and on the administrative law judge.
(b) No particular form is prescribed for any petition for
Secretary's review permitted by this subpart. However, any such petition
shall:
(1) Be dated;
(2) Be typewritten or legibly written;
(3) Specify the issue or issues stated in the administrative law
judge decision and order giving rise to such petition;
(4) State the specific reason or reasons why the party petitioning
for review believes such decision and order are in error;
[[Page 409]]
(5) Be signed by the party filing the petition or by an authorized
representative of such party;
(6) Include the address at which such party or authorized
representative desires to receive further communications relating
thereto; and
(7) Attach copies of the administrative law judge's decision and
order, and any other record documents which would assist the Secretary
in determining whether review is warranted.
(c) Whenever the Secretary determines to review the decision and
order of an administrative law judge, a notice of the Secretary's
determination shall be served upon the administrative law judge and upon
all parties to the proceeding within 30 calendar days after the
Secretary's receipt of the petition for review.
(d) Upon receipt of the Secretary's notice, the Office of
Administrative Law Judges shall within fifteen calendar days forward the
complete hearing record to the Secretary.
(e) The Secretary's notice may specify:
(1) The issue or issues to be reviewed;
(2) The form in which submissions shall be made by the parties
(e.g., briefs); and
(3) The time within which such submissions shall be made.
(f) All documents submitted to the Secretary shall be filed with the
Secretary of Labor, U.S. Department of Labor, Washington, DC 20210,
Attention: Executive Director, Office of Administrative Appeals, room S-
4309. An original and two copies of all documents shall be filed.
Documents are not deemed filed with the Secretary until actually
received by the Secretary. All documents, including documents filed by
mail, shall be received by the Secretary either on or before the due
date.
(g) Copies of all documents filed with the Secretary shall be served
upon all other parties involved in the proceeding. Service upon the
Administrator shall be in accordance with Sec. 655.640(b) of this part.
(h) The Secretary's final decision shall be issued within 180
calendar days from the date of the notice of intent to review. The
Secretary's decision shall be served upon all parties and the
administrative law judge.
(i) Upon issuance of the Secretary's decision, the Secretary shall
transmit the entire record to the Chief Administrative Law Judge for
custody pursuant to Sec. 655.660 of this part.
Sec. 655.660 Administrative record.
The official record of every completed administrative hearing
procedure provided by subparts F and G of this part shall be maintained
and filed under the custody and control of the Chief Administrative Law
Judge. Upon receipt of a complaint seeking review of the final agency
action in a United States District Court, the Chief Administrative Law
Judge shall certify the official record and shall transmit such record
to the clerk of the court.
Sec. 655.665 Notice to the Department of Homeland Security and the
Employment and Training Administration.
(a) The Administrator shall promptly notify the DHS and ETA of the
entry of a cease and desist order pursuant to Sec. 655.615 of this
part. The order shall remain in effect until the completion of the
Administrator's investigation and any subsequent proceedings pursuant to
Sec. 655.630 of this part, unless the Administrator notifies the DHS
and ETA of the entry of a subsequent order lifting the prohibition.
(1) The DHS, upon receipt of notification from the Administrator
that a cease and desist order has been entered against an employer:
(i) Shall not permit the vessels owned or chartered by the attesting
employer to use alien crewmembers to perform the longshore activity(ies)
at the port or location in the State of Alaska specified in the cease
and desist order; and
(ii) Shall, in the case of an employer seeking to utilize the
automated vessel exception, require that such employer not use alien
crewmembers to perform the longshore activity(ies) at the port or
location in the State of Alaska specified in the cease and desist order,
without having on file with ETA an attestation pursuant to Sec. 655.520
of this part.
(2) ETA, upon receipt of the Administrator's notice shall, in the
case of an
[[Page 410]]
attesting employer, suspend the employer's attestation, either in whole
or in part, for the activity(ies) and port or location in the State of
Alaska specified in the cease and desist order.
(b) The Administrator shall notify the DHS and ETA of the final
determination of a violation by an attesting employer or of the
ineligibility of an employer for the automated vessel exception, upon
the earliest of the following events:
(1) Where the Administrator determines that there is a basis for a
finding of violation by an attesting employer or a finding of
nonapplicability of the automated vessel exception, and no timely
request for hearing is made pursuant to Sec. 655.630 of this part;
(2) Where, after a hearing, the administrative law judge issues a
decision and order finding a violation by an attesting employer or
finding inapplicable the automated vessel exception, and no timely
petition for review to the Secretary is made pursuant to Sec. 655.655
of this part; or
(3) Where a petition for review is taken from an administrative law
judge's decision finding a violation or finding inapplicable the
automated vessel exception, and the Secretary either declines within
thirty days to entertain the appeal, pursuant to Sec. 655.655(c) of
this part, or the Secretary affirms the administrative law judge's
determination; or
(4) Where the administrative law judge finds that there was no
violation by an attesting employer or that the automated vessel
exception does apply, and the Secretary, upon review, issues a decision
pursuant to Sec. 655.655 of this part, holding that a violation was
committed by an attesting employer or holding that the automated vessel
exception does not apply.
(c) The DHS, upon receipt of notification from the Administrator
pursuant to paragraph (b) of this section:
(1) Shall not permit the vessels owned or chartered by the attesting
employer to enter any port of the U.S. for a period of up to one year;
(2) Shall, in the case of an employer determined to be ineligible
for the automated vessel exception, thereafter require that such
employer not use alien crewmembers(s) to perform the longshore
activity(ies) at the specified port or location in the State of Alaska
without having on file with ETA an attestation pursuant to Sec. 655.520
of this part; and
(3) Shall, in the event that the Administrator's notice constitutes
a conclusive determination (pursuant to Sec. 655.670) that the
prevailing practice at a particular U.S. port does not permit the use of
nonimmigrant alien crewmembers for particular longshore activity(ies),
thereafter permit no employer to use alien crewmembers for the
particular longshore activity(ies) at that port.
(d) ETA, upon receipt of the Administrator's notice pursuant to
paragraph (b) of this section:
(1) Shall, in the case of an attesting employer, suspend the
employer's attestation, either in whole or in part, for the port or
location at issue and for any other U.S. port, and shall not accept for
filing any attestation submitted by the employer for a period of 12
months or for a shorter period if such is specified for that employer by
the DHS; and
(2) Shall, if the Administrator's notice constitutes a conclusive
determination (pursuant to Sec. 655.670) that the prevailing practice
at a particular U.S. port does not permit the use of alien crewmembers
for the longshore activity(ies), thereafter accept no attestation under
the prevailing practice exception on Form ETA 9033 from any employer for
the performance of the activity(ies) at that port, and shall invalidate
any current attestation under the prevailing practice exception on Form
ETA 9033 for any employer for the performance of the activity(ies) at
that port.
[60 FR 3969, 3977, Jan. 19, 1995, as amended at 71 FR 35520, June 21,
2006]
Sec. 655.670 Federal Register notice of determination of prevailing
practice.
(a) Pursuant to Sec. 655.625(b), the Administrator shall publish in
the Federal Register a notice of the Administrator's determination of
any investigation regarding the prevailing practice for the use of alien
crewmembers for particular longshore activity(ies) in a particular U.S.
port (whether under an attestation or under the automated
[[Page 411]]
vessel exception). Where the Administrator has determined that the
prevailing practice in that U.S. port does not permit such use of alien
crewmembers, and no timely request for a hearing is filed pursuant to
Sec. 655.630, the Administrator's determination shall be the conclusive
determination for purposes of the Act and subparts F and G of this part;
the DHS and ETA shall, upon notice from the Administrator, take the
actions specified in Sec. 655.665. Where the Administrator has
determined that the prevailing practice in that U.S. port at the time of
the investigation permits such use of alien crewmembers, the
Administrator shall, in any subsequent investigation, give that
determination appropriate weight, unless the determination is reversed
in proceedings under Sec. 655.630 or Sec. 655.655.
(b) Where an interested party, pursuant to Sec. 655.630, requests a
hearing on the Administrator's determination, the Administrator shall,
upon the issuance of the decision of the administrative law judge,
publish in the Federal Register a notice of the judge's decision as to
the prevailing practice for the longshore activity(ies) and U.S. port at
issue, if the administrative law judge:
(1) Reversed the determination of the Administrator published in the
Federal Register pursuant to paragraph (a) of this section; or
(2) Determines that the prevailing practice for the particular
activity in the port does not permit the use of alien crewmembers.
(c) If the administrative law judge determines that the prevailing
practice in that port does not permit such use of alien crewmembers, the
judge's decision shall be the conclusive determination for purposes of
the Act and subparts F and G of this part (unless and until reversed by
the Secretary on discretionary review pursuant to Sec. 655.655). The
DHS and ETA shall upon notice from the Administrator, take the actions
specified in Sec. 655.665.
(d) In the event that the Secretary, upon discretionary review
pursuant to Sec. 655.655, issues a decision that reverses the
administrative law judge on a matter on which the Administrator has
published notices in the Federal Register pursuant to paragraphs (a) and
(b) of this section, the Administrator shall publish in the Federal
Register a notice of the Secretary's decision and shall notify the DHS
and ETA.
(1) Where the Secretary reverses the administrative law judge and
determines that, contrary to the judge's decision, the prevailing
practice for the longshore activity(ies) in the U.S. port at issue does
not permit the use of alien crewmembers, the Secretary's decision shall
be the conclusive determination for purposes of the Act and subparts F
and G of this part. Upon notice from the Administrator, the DHS and ETA
shall take the actions specified in Sec. 655.665.
(2) Where the Secretary reverses the administrative law judge and
determines that, contrary to the judge's decision, the use of alien
crewmembers is permitted by the prevailing practice for the longshore
activity(ies) in the U.S. port at issue, the judge's decision shall no
longer have the conclusive effect specified in paragraph (b) of this
section. Upon notice from the Administrator, the DHS and ETA shall cease
the actions specified in Sec. 655.665.
Sec. 655.675 Non-applicability of the Equal Access to Justice Act.
A proceeding under subpart G of this part is not subject to the
Equal Access to Justice Act, as amended, 5 U.S.C. 504. In such a
proceeding, the administrative law judge shall have no authority to
award attorney fees and/or other litigation expenses pursuant to the
provisions of the Equal Access to Justice Act.
Subpart H_Labor Condition Applications and Requirements for Employers
Seeking To Employ Nonimmigrants on H 1b Visas in Specialty Occupations
and as Fashion Models, and Requirements for Employers Seeking To Employ
Nonimmigrants on H 1b1 and E 3 Visas in Specialty Occupations
Source: 59 FR 65659, 65676, Dec. 20, 1994, unless otherwise noted.
[[Page 412]]
Sec. 655.700 What statutory provisions govern the employment of H-1B,
H-1B1, and E-3 nonimmigrants and how do employers apply for H-
1B, H-1B1, and E-3 visas?
Under the E-3 visa program, the Immigration and Nationality Act
(INA), as amended, permits certain nonimmigrant treaty aliens to be
admitted to the United States solely to perform services in a specialty
occupation (INA section 101(a)(15)(E)(iii)). Under the H-1B1 visa
program, the INA permits nonimmigrant professionals in specialty
occupations from countries with which the United States has entered into
certain agreements that are identified in section 214(g)(8)(A) of the
INA to temporarily enter the United States for employment in a specialty
occupation. Employers seeking to employ nonimmigrant workers in
specialty occupations under H-1B, H-1B1, or E-3 visas must file a labor
condition application with the Department of Labor as described in Sec.
655.730(c) and (d). Certain procedures described in this subpart H for
obtaining a visa and entering the U.S. after the Department of Labor
attestation process, including procedures in Sec. 655.705, apply only
to H-1B nonimmigrants. The procedures for receiving an E-3 or H-1B1 visa
and entering the U.S. on an E-3 or H-1B1 visa after the attestation
process is certified by the Department of Labor are identified in the
regulations and procedures of the Department of State and the United
States Citizenship and Immigration Services (USCIS) of the Department of
Homeland Security. Consult the Department of State (http://
www.state.gov/) and USCIS (http://www.uscis.gov/) Web sites and
regulations for specific instructions regarding the E-3 and H-1B1 visas.
(a) Statutory provisions regarding H-1B visas. With respect to
nonimmigrant workers entering the U.S. on H-1B visas, which are
available to nonimmigrant aliens in specialty occupations or certain
fashion models from any country, the INA, as amended, provides as
follows:
(1) Establishes an annual ceiling (exclusive of spouses and
children) on the number of foreign workers who may be issued H-1B
visas--
(i) 195,000 in fiscal year 2001;
(ii) 195,000 in fiscal year 2002;
(iii) 195,000 in fiscal year 2003; and
(iv) 65,000 in each succeeding fiscal year;
(2) Defines the scope of eligible occupations for which
nonimmigrants may be issued H-1B visas and specifies the qualifications
that are required for entry as an H-1B nonimmigrant ;
(3) Requires an employer seeking to employ H-1B nonimmigrants to
file a labor condition application (LCA) agreeing to various attestation
requirements and have it certified by the Department of Labor (DOL)
before a nonimmigrant may be provided H-1B status by the United States
Citizenship and Immigration Services of the Department of Homeland
Security (DHS); and
(4) Establishes an enforcement system under which DOL is authorized
to determine whether an employer has engaged in misrepresentation or
failed to meet a condition of the LCA, and is authorized to impose fines
and penalties.
(b) Procedure for obtaining an H-1B visa classification. Before a
nonimmigrant may be admitted to work in a ``specialty occupation'' or as
a fashion model of distinguished merit and ability in the United States
under the H-1B visa classification, there are certain steps which must
be followed:
(1) First, an employer shall submit to the Department of Labor
(DOL), and obtain DOL certification of, a labor condition application
(LCA). The requirements for obtaining a certified LCA are provided in
this subpart. The electronic LCA (Form ETA 9035E) is available at http:/
/www.lca.doleta.gov. The paper-version LCA (Form ETA 9035) and the LCA
cover pages (Form ETA 9035CP), which contain the full attestation
statements incorporated by reference into Form ETA 9035 and Form ETA
9035E, may be obtained from http://ows.doleta.gov and from the
Employment and Training Administration (ETA) National Office. Employers
must file LCAs in the manner prescribed in Sec. 655.720.
(2) After obtaining DOL certification of an LCA, the employer may
submit a nonimmigrant visa petition (DHS Form I-129), together with the
certified
[[Page 413]]
LCA, to DHS, requesting H-1B classification for the foreign worker. The
requirements concerning the submission of a petition to, and its
processing by, DHS are set forth in DHS regulations. The DHS petition
(Form I-129) may be obtained from an DHS district or area office.
(3) If DHS approves the H-1B classification, the nonimmigrant then
may apply for an H-1B visa abroad at a consular office of the Department
of State. If the nonimmigrant is already in the United States in a
status other than H-1B, he/she may apply to the DHS for a change of visa
status.
(c) Applicability. (1) This subpart H and subpart I of this part
apply to all employers seeking to employ foreign workers under the H-1B
visa classification in specialty occupations or as fashion models of
distinguished merit and ability.
(2) During the period that the provisions of Appendix 1603.D.4 of
Annex 1603 of the North American Free Trade Agreement (NAFTA) apply,
this subpart H and subpart I of this part shall apply (except for the
provisions relating to the recruitment and displacement of U.S. workers
(see Sec. Sec. 655.738 and 655.739)) to the entry and employment of a
nonimmigrant who is a citizen of Mexico under and pursuant to the
provisions of section D or Annex 1603 of NAFTA in the case of all
professions set out in Appendix 1603.D.1 of Annex 1603 of NAFTA other
than registered nurses. Therefore, the references in this part to ``H-1B
nonimmigrant'' apply to any Mexican citizen nonimmigrant who is
classified by DHS as ``TN.'' In the case of a registered nurse, the
following provisions shall apply: subparts D and E of this part or the
Nursing Relief for Disadvantaged Areas Act of 1999 (Public Law 106-95)
and the regulations issued thereunder, 20 CFR part 655, subparts L and
M.
(3) E-3 visas: Except as provided in paragraph (d) of this section,
this subpart H and subpart I of this part apply to all employers seeking
to employ foreign workers under the E-3 visa classification in specialty
occupations under INA section 101(a)(15)(E)(iii) (8 U.S.C.
1101(a)(15)(E)(iii)). This paragraph (c)(3) applies to labor condition
applications filed on or after April 11, 2008. E-3 labor condition
applications filed prior to that date but on or after May 11, 2005
(i.e., the effective date of the statute), will be processed according
to the E-3 statutory terms and the E-3 processing procedures published
on July 19, 2005 in the Federal Register at 74 FR 41434.
(4) H-1B1 visas: Except as provided in paragraph (d) of this
section, subparts H and I of this part apply to all employers seeking to
employ foreign workers under the H-1B1 visa classification in specialty
occupations described in INA section 101(a)(15)(H)(i)(b1) (8 U.S.C.
1101(a)(15)(H)(i)(b1)), under the U.S.-Chile and U.S.-Singapore Free
Trade Agreements as long as the Agreements are in effect. (INA section
214(g)(8)(A) (8 U.S.C. 1184(g)(8)(A)). This paragraph (c)(4) applies to
H-1B1 labor condition applications filed on or after November 23, 2004.
Further, H-1B1 labor condition applications filed prior to that date but
on or after January 1, 2004, the effective date of the H-1B1 program,
will be handled according to the H-1B1 statutory terms and the H-1B1
processing procedures as described in paragraph (d)(3) of this section.
(d) Nonimmigrants on E-3 or H-1B1 visas--(1) Exclusions. The
following sections in this subpart and in subpart I of this part do not
apply to E-3 and H-1B1 nonimmigrants, but apply only to H-1B
nonimmigrants: Sec. Sec. 655.700(a), (b), (c)(1) and (2); 655.710(b);
655.730(d)(5) and (e); 655.735; 655.736; 655.737; 655.738; 655.739;
655.760(a)(7), (8), (9), and (10); and 655.805(a)(7), (8), and (9).
Further, the following references in subparts H or I of this part,
whether in the excluded sections listed above or elsewhere, do not apply
to E-3 and H-1B1 nonimmigrants, but apply only to H-1B nonimmigrants:
references to fashion models of distinguished merit and ability (H-1B
visas, but not H-1B1 and E-3 visas, are available to such fashion
models); references to a petition process before USCIS (the petition
process applies only to H-1B, but not to initial H-1B1 and E-3 visas
unless it is a petition to accord a change of status); references to
additional attestation obligations of H-1B-dependent employers and
employers found to have willfully violated the H-1B program requirements
(these provisions do not apply to
[[Page 414]]
the H-1B1 and E-3 programs); and references in Sec. 655.750(a) or
elsewhere in this part to the provision in INA section 214(n) (formerly
INA section 214(m)) (8 U.S.C. 1184(n)) regarding increased portability
of H-1B status (by the statutory terms, the portability provision is
inapplicable to H-1B1 and E-3 nonimmigrants).
(2) Terminology. For purposes of subparts H and I of this part,
except in those sections identified in paragraph (d)(1) of this section
as inapplicable to E-3 and H-1B1 nonimmigrants and as otherwise
excluded:
(i) The term ``H-1B'' includes ``E-3'' and ``H-1B1'' (INA section
101(a)(15)(E)(iii) and (a)(15)(H)(i)(b1)) (8 U.S.C. 1101(a)(15)(E)(iii)
and (a)(15)(H)(i)(b1)); and
(ii) The term ``labor condition application'' or ``LCA'' includes a
labor attestation made under section 212(t)(1) of the INA for an E-3 or
H-1B1 nonimmigrant professional classified under INA section
101(a)(15)(E)(iii) and (a)(15)(H)(i)(b1) (8 U.S.C. 1101(a)(15)(E)(iii)
and (a)(15)(H)(i)(b1)).
(3) Filing procedures for E-3 and H-1B1 labor attestations.
Employers seeking to employ an E-3 or H-1B1 nonimmigrant must submit a
completed ETA Form 9035 or ETA Form 9035E (electronic) to DOL in the
manner prescribed in Sec. Sec. 655.720 and 655.730. Employers must
indicate on the form whether the labor condition application is for an
``E-3 Australia,'' ``H-1B1 Chile,'' or ``H-1B1 Singapore'' nonimmigrant.
Any changes in the procedures and instructions for submitting labor
condition applications will be provided in a notice published in the
Federal Register and posted on the ETA Web site at http://
www.foreignlaborcert.doleta.gov/.
(4) Employer's responsibilities regarding E-3 and H-1B1 labor
attestation. Each employer seeking an E-3 or H-1B1 nonimmigrant in a
specialty occupation has several responsibilities, as described more
fully in subparts H and I of this part, including the following:
(i) By submitting a signed and completed LCA, the employer makes
certain representations and agrees to several attestations regarding the
employer's responsibilities, including the wages, working conditions,
and benefits to be provided to the E-3 or H-1B1 nonimmigrant. These
attestations are specifically identified and incorporated in the LCA,
and are fully described on Form ETA 9035CP (cover pages).
(ii) The employer reaffirms its acceptance of all of the attestation
obligations by transmitting the certified labor attestation to the
nonimmigrant, the Department of State, and/or the USCIS according to the
procedures of those agencies.
(iii) The employer shall maintain the original signed and certified
LCA in its files, and shall make a copy of the filed LCA, as well as
necessary supporting documentation (as identified under this subpart),
available for public examination in a public access file at the
employer's principal place of business in the U.S. or at the place of
employment within one working day after the date on which the LCA is
filed with ETA.
(iv) The employer shall develop sufficient documentation to meet its
burden of proof, in the event that such statement or information is
challenged, with respect to the validity of the statements made in its
LCA and the accuracy of information provided. The employer shall also
maintain such documentation at its principal place of business in the
U.S. and shall make such documentation available to DOL for inspection
and copying upon request.
(5) Application to Chile. During the period that the provisions of
Chapter 14 and Section D of Annex 14.3 of the United States-Chile Free
Trade Agreement (Chile FTA) are in effect, this subpart H and subpart I
of this part shall apply (except for the provisions excluded under
paragraph (d)(1) of this section) to the temporary entry and employment
of a nonimmigrant who is a national of Chile under the provisions of
Article 14.9 and Annex 2.1 of the Chile FTA and who is a professional
under the provisions of Annex 14.3(D) of the Chile FTA.
(6) Application to Singapore. During the period that the provisions
of Section IV of Annex 11A of the United States-Singapore Free Trade
Agreement (Singapore FTA) are in effect, this subpart H and subpart I of
this part shall apply (except for the provisions excluded under
paragraph (d)(1) of
[[Page 415]]
this section) to the temporary entry and employment of a nonimmigrant
who is a national of Singapore under the provisions of Chapter 11 and
Section IV of Annex 11A of the Singapore FTA and who is a professional
under the provisions of Annex 11A(IV) of the Singapore FTA.
[65 FR 80209, Dec. 20, 2000, as amended at 66 FR 63300, Dec. 5, 2001; 69
FR 68226, Nov. 23, 2004; 70 FR 72560, Dec. 5, 2005; 71 FR 35520, 35521,
June 21, 2006; 71 FR 37804, June 30, 2006; 73 FR 19947, Apr. 11, 2008]
Sec. 655.705 What Federal agencies are involved in the H-1B and H-1B1
programs, and what are the responsibilities of those agencies
and of employers?
Four federal agencies (Department of Labor, Department of State,
Department of Justice, and Department of Homeland Security) are involved
in the process relating to H-1B nonimmigrant classification and
employment. The employer also has continuing responsibilities under the
process. This section briefly describes the responsibilities of each of
these entities.
(a) Department of Labor (DOL) responsibilities. DOL administers the
labor condition application process and enforcement provisions
(exclusive of complaints regarding non-selection of U.S. workers, as
described in 8 U.S.C. 1182(n)(1)(G)(i)(II) and 1182(n)(5)). Two DOL
agencies have responsibilities:
(1) The Employment and Training Administration (ETA) is responsible
for receiving and certifying labor condition applications (LCAs) in
accordance with this subpart H. ETA is also responsible for compiling
and maintaining a list of LCAs and makes such list available for public
examination at the Department of Labor, 200 Constitution Avenue, NW.,
Room C-4312, Washington, DC 20210.
(2) The Wage and Hour Division of the Employment Standards
Administration (ESA) is responsible, in accordance with subpart I of
this part, for investigating and determining an employer's
misrepresentation in or failure to comply with LCAs in the employment of
H-1B nonimmigrants.
(b) Department of Justice (DOJ), Department of Homeland Security
(DHS) and Department of State (DOS) responsibilities. The Department of
State, through U.S. Embassies and Consulates, is responsible for issuing
H-1B, H-1B1, and E-3 visas. For H-1B visas, the following agencies are
involved: DHS accepts the employer's petition (DHS Form I-129) with the
DOL-certified LCA attached. In doing so, the DHS determines whether the
petition is supported by an LCA which corresponds with the petition,
whether the occupation named in the labor condition application is a
specialty occupation or whether the individual is a fashion model of
distinguished merit and ability, and whether the qualifications of the
nonimmigrant meet the statutory requirements for H-1B visa
classification. If the petition is approved, DHS will notify the U.S.
Consulate where the nonimmigrant intends to apply for the visa unless
the nonimmigrant is in the U.S. and eligible to adjust status without
leaving this country. See 8 U.S.C. 1255(h)(2)(B)(i). The Department of
Justice administers the system for the enforcement and disposition of
complaints regarding an H-1B-dependent employer's or willful violator
employer's failure to offer a position filled by an H-1B nonimmigrant to
an equally or better qualified United States worker (8 U.S.C.
1182(n)(1)(E), 1182(n)(5)), or such employer's willful misrepresentation
of material facts relating to this obligation. DHS, is responsible for
disapproving H-1B and other petitions filed by an employer found to have
engaged in misrepresentation or failed to meet certain conditions of the
labor condition application (8 U.S.C. 1182(n)(2)(C)(i)-(iii);
1182(n)(5)(E)). DOL and DOS are involved in the process relating to the
initial issuance of H-1B1 and E-3 visas. DHS is involved in change of
status and extension of stays for the H-1B1 and E-3 category.
(c) Employer's responsibilities. This paragraph applies only to the
H-1B program; employer's responsibilities under the H-1B1 and E-3
programs are found at Sec. 655.700(d)(4). Each employer seeking an H-1B
nonimmigrant in a specialty occupation or as a fashion model of
distinguished merit and ability has several responsibilities, as
described more fully in this subpart and subpart I of this part,
including:
[[Page 416]]
(1) The employer shall submit a completed labor condition
application (LCA) on Form ETA 9035E or Form ETA 9035 in the manner
prescribed in Sec. 655.720. By completing and submitting the LCA, and
by signing the LCA, the employer makes certain representations and
agrees to several attestations regarding its responsibilities, including
the wages, working conditions, and benefits to be provided to the H-1B
nonimmigrants (8 U.S.C. 1182(n)(1)); these attestations are specifically
identified and incorporated by reference in the LCA, as well as being
set forth in full on Form ETA 9035CP. The LCA contains additional
attestations for certain H-1B-dependent employers and employers found to
have willfully violated the H-1B program requirements; these
attestations impose certain obligations to recruit U.S. workers, to
offer the job to U.S. applicants who are equally or better qualified
than the H-1B nonimmigrant(s) sought for the job, and to avoid the
displacement of U.S. workers (either in the employer's workforce, or in
the workforce of a second employer with whom the H-1B nonimmigrant(s) is
placed, where there are indicia of employment with a second employer (8
U.S.C. 1182(n)(1)(E)-(G)). These additional attestations are
specifically identified and incorporated by reference in the LCA, as
well as being set forth in full on Form ETA 9035CP. If ETA certifies the
LCA, notice of the certification will be sent to the employer by the
same means the employer used to submit the LCA (that is, electronically
where the Form ETA 9035E was submitted electronically, and by U.S. Mail
where the Form ETA 9035 was submitted by U.S. Mail). The employer
reaffirms its acceptance of all of the attestation obligations by
submitting the LCA to the U.S. Citizenship and Immigration Services
(formerly the Immigration and Naturalization Service or INS) in support
of the Petition for Nonimmigrant Worker, Form I-129, for an H-1B
nonimmigrant. See 8 CFR 214.2(h)(4)(iii)(B)(2), which specifies the
employer will comply with the terms of the LCA for the duration of the
H-1B nonimmigrant's authorized period of stay.
(2) The employer shall maintain the original signed and certified
LCA in its files, and shall make a copy of the LCA, as well as necessary
supporting documentation (as identified under this subpart), available
for public examination in a public access file at the employer's
principal place of business in the U.S. or at the place of employment
within one working day after the date on which the LCA is filed with
ETA.
(3) The employer then may submit a copy of the certified, signed LCA
to DHS with a completed petition (Form I-129) requesting H-1B
classification.
(4) The employer shall not allow the nonimmigrant worker to begin
work until DHS grants the alien authorization to work in the United
States for that employer or, in the case of a nonimmigrant previously
afforded H-1B status who is undertaking employment with a new H-1B
employer, until the new employer files a nonfrivolous petition (Form I-
129) in accordance with DHS requirements.
(5) The employer shall develop sufficient documentation to meet its
burden of proof with respect to the validity of the statements made in
its LCA and the accuracy of information provided, in the event that such
statement or information is challenged. The employer shall also maintain
such documentation at its principal place of business in the U.S. and
shall make such documentation available to DOL for inspection and
copying upon request.
[65 FR 80210, Dec. 20, 2000, as amended at 66 FR 63300, Dec. 5, 2001; 70
FR 72560, Dec. 5, 2005; 71 FR 35520, June 21, 2006; 73 FR 19948, Apr.
11, 2008]
Sec. 655.710 What is the procedure for filing a complaint?
(a) Except as provided in paragraph (b) of this section, complaints
concerning misrepresentation in the labor condition application or
failure of the employer to meet a condition specified in the application
shall be filed with the Administrator, Wage and Hour Division
(Administrator), ESA, according to the procedures set forth in subpart I
of this part. The Administrator shall investigate where appropriate, and
after an opportunity for a hearing, assess appropriate sanctions and
penalties, as described in subpart I of this part.
[[Page 417]]
(b) Complaints arising under section 212(n)(1)(G)(i)(II) of the INA,
8 U.S.C. 1182(n)(1)(G)(i)(II), alleging failure of the employer to offer
employment to an equally or better qualified U.S. applicant, or an
employer's misrepresentation regarding such offer(s) of employment, may
be filed with the Department of Justice, Civil Rights Division, Office
of Special Counsel for Immigration-Related Unfair Employment Practices,
950 Pennsylvania Avenue, NW., Washington, DC 20530, Telephone: 1-800-
255-8155 (employers), 1-800-255-7688 (employees); Web address: http://
www.usdoj.gov/crt/osc. The Department of Justice shall investigate where
appropriate, and take action as appropriate under that Department's
regulations and procedures.
[65 FR 80210, Dec. 20, 2000, as amended at 70 FR 72561, Dec. 5, 2005]
Sec. 655.715 Definitions.
For the purposes of subparts H and I of this part:
Actual wage means the wage rate paid by the employer to all
individuals with experience and qualifications similar to the H-1B
nonimmigant's experience and qualifications for the specific employment
in question at the place of employment. The actual wage established by
the employer is not an average of the wage rates paid to all workers
employed in the occupation.
Administrative Law Judge (ALJ) means an official appointed pursuant
to 5 U.S.C. 3105.
Administrator means the Administrator of the Wage and Hour Division,
Employment Standards Administration, Department of Labor, and such
authorized representatives as may be designated to perform any of the
functions of the Administrator under subpart H or I of this part.
Aggrieved party means a person or entity whose operations or
interests are adversely affected by the employer's alleged non-
compliance with the labor condition application and includes, but is not
limited to:
(1) A worker whose job, wages, or working conditions are adversely
affected by the employer's alleged non-compliance with the labor
condition application;
(2) A bargaining representative for workers whose jobs, wages, or
working conditions are adversely affected by the employer's alleged non-
compliance with the labor condition application;
(3) A competitor adversely affected by the employer's alleged non-
compliance with the labor condition application; and
(4) A government agency which has a program that is impacted by the
employer's alleged non-compliance with the labor condition application.
Area of intended employment means the area within normal commuting
distance of the place (address) of employment where the H-1B
nonimmigrant is or will be employed. There is no rigid measure of
distance which constitutes a normal commuting distance or normal
commuting area, because there may be widely varying factual
circumstances among different areas (e.g., normal commuting distances
might be 20, 30, or 50 miles). If the place of employment is within a
Metropolitan Statistical Area (MSA) or a Primary Metropolitan
Statistical Area (PMSA), any place within the MSA or PMSA is deemed to
be within normal commuting distance of the place of employment; however,
all locations within a Consolidated Metropolitan Statistical Area (CMSA)
will not automatically be deemed to be within normal commuting distance.
The borders of MSAs and PMSAs are not controlling with regard to the
identification of the normal commuting area; a location outside of an
MSA or PMSA (or a CMSA) may be within normal commuting distance of a
location that is inside (e.g., near the border of) the MSA or PMSA (or
CMSA).
Attorney General means the chief official of the U.S. Department of
Justice or the Attorney General's designee.
Authorized agent and authorized representative mean an official of
the employer who has the legal authority to commit the employer to the
statements in the labor condition application.
Center Director means the Department official to whom the
Administrator has delegated his authority for purposes of NPC operations
and functions.
[[Page 418]]
Certification means the determination by a certifying officer that a
labor condition application is not incomplete and does not contain
obvious inaccuracies.
Certify means the act of making a certification.
Certifying Officer means a Department of Labor official, or such
official's designee, who makes determinations about whether or not to
certify labor condition applications.
Chief Administrative Law Judge (Chief ALJ) means the chief official
of the Office of the Administrative Law Judges of the Department of
Labor or the Chief Administrative Law Judge's designee.
Department and DOL mean the United States Department of Labor.
Department of Homeland Security (DHS) through the United States
Citizenship and Immigration Services (USCIS) makes the determination
under the INA on whether to grant visa petitions of employers seeking
the admission of non-immigrants under H-1B visa for the purpose of
employment.
Division means the Wage and Hour Division of the Employment
Standards Administration, DOL.
Employed, employed by the employer, or employment relationship means
the employment relationship as determined under the common law, under
which the key determinant is the putative employer's right to control
the means and manner in which the work is performed. Under the common
law, ``no shorthand formula or magic phrase * * * can be applied to find
the answer * * *. [A]ll of the incidents of the relationship must be
assessed and weighed with no one factor being decisive.'' NLRB v. United
Ins. Co. of America, 390 U.S. 254, 258 (1968).
Employer means a person, firm, corporation, contractor, or other
association or organization in the United States that has an employment
relationship with H-1B, H-1B1, or E-3 nonimmigrants and/or U.S.
worker(s). In the case of an H-1B nonimmigrant (not including E-3 and H-
1B1 nonimmigrants), the person, firm, contractor, or other association
or organization in the United States that files a petition with the
United States Citizenship and Immigration Services (USCIS) of the
Department of Homeland Security (DHS) on behalf of the nonimmigrant is
deemed to be the employer of that nonimmigrant. In the case of an E-3
and H-1B1 nonimmigrant, the person, firm, contractor, or other
association or organization in the United States that files an LCA with
the Department of Labor on behalf of the nonimmigrant is deemed to be
the employer of that nonimmigrant.
Employment and Training Administration (ETA) means the agency within
the Department which includes the Office of Foreign Labor Certification
(OFLC).
Employment Standards Administration (ESA) means the agency within
the Department which includes the Wage and Hour Division.
INA means the Immigration and Nationality Act, as amended, 8 U.S.C.
1101 et seq.
Independent authoritative source means a professional, business,
trade, educational or governmental association, organization, or other
similar entity, not owned or controlled by the employer, which has
recognized expertise in an occupational field.
Independent authoritative source survey means a survey of wages
conducted by an independent authoritative source and published in a
book, newspaper, periodical, loose-leaf service, newsletter, or other
similar medium, within the 24-month period immediately preceding the
filing of the employer's application. Such survey shall:
(1) Reflect the average wage paid to workers similarly employed in
the area of intended employment;
(2) Be based upon recently collected data--e.g., within the 24-month
period immediately preceding the date of publication of the survey; and
(3) Represent the latest published prevailing wage finding by the
authoritative source for the occupation in the area of intended
employment.
Interested party means a person or entity who or which may be
affected by the actions of an H-1B employer or by the outcome of a
particular investigation and includes any person, organization, or
entity who or which has notified the Department of his/her/its interest
or concern in the Administrator's determination.
[[Page 419]]
Lockout means a labor dispute involving a work stoppage, wherein an
employer withholds work from its employees in order to gain a concession
from them.
Occupation means the occupational or job classification in which the
H-1B nonimmigrant is to be employed.
Office of Foreign Labor Certification (OFLC) means the
organizational component within the ETA that provides national
leadership and policy guidance and develops regulations and procedures
to carry out the responsibilities of the Secretary of Labor under the
INA concerning alien workers seeking admission to the United States in
order to work under the Immigration and Nationality Act, as amended.
Period of intended employment means the time period between the
starting and ending dates inclusive of the H-1B nonimmigrant's intended
period of employment in the occupational classification at the place of
employment as set forth in the labor condition application.
Place of employment means the worksite or physical location where
the work actually is performed by the H-1B, H-1B1, or E-3 nonimmigrant.
(1) The term does not include any location where either of the
following criteria--paragraph (1)(i) or (ii)--is satisfied:
(i) Employee developmental activity. An H-1B worker who is stationed
and regularly works at one location may temporarily be at another
location for a particular individual or employer-required developmental
activity such as a management conference, a staff seminar, or a formal
training course (other than ``on-the-job-training'' at a location where
the employee is stationed and regularly works). For the H-1B worker
participating in such activities, the location of the activity would not
be considered a ``place of employment'' or ``worksite,'' and that
worker's presence at such location--whether owned or controlled by the
employer or by a third party--would not invoke H-1B program requirements
with regard to that employee at that location. However, if the employer
uses H-1B nonimmigrants as instructors or resource or support staff who
continuously or regularly perform their duties at such locations, the
locations would be ``places of employment'' or ``worksites'' for any
such employees and, thus, would be subject to H-1B program requirements
with regard to those employees.
(ii) Particular worker's job functions. The nature and duration of
an H-1B nonimmigrant's job functions may necessitate frequent changes of
location with little time spent at any one location. For such a worker,
a location would not be considered a ``place of employment'' or
``worksite'' if the following three requirements (i.e., paragraphs
(1)(ii)(A) through (C)) are all met--
(A) The nature and duration of the H-1B worker's job functions
mandates his/her short-time presence at the location. For this purpose,
either:
(1) The H-1B nonimmigrant's job must be peripatetic in nature, in
that the normal duties of the worker's occupation (rather than the
nature of the employer's business) requires frequent travel (local or
non-local) from location to location; or
(2) The H-1B worker's duties must require that he/she spend most
work time at one location but occasionally travel for short periods to
work at other locations; and
(B) The H-1B worker's presence at the locations to which he/she
travels from the ``home'' worksite is on a casual, short-term basis,
which can be recurring but not excessive (i.e., not exceeding five
consecutive workdays for any one visit by a peripatetic worker, or 10
consecutive workdays for any one visit by a worker who spends most work
time at one location and travels occasionally to other locations); and
(C) The H-1B nonimmigrant is not at the location as a
``strikebreaker'' (i.e., the H-1B nonimmigrant is not performing work in
an occupation in which workers are on strike or lockout).
(2) Examples of ``non-worksite'' locations based on worker's job
functions: A computer engineer sent out to customer locations to
``troubleshoot'' complaints regarding software malfunctions; a sales
representative making calls on prospective customers or established
customers within a ``home
[[Page 420]]
office'' sales territory; a manager monitoring the performance of out-
stationed employees; an auditor providing advice or conducting reviews
at customer facilities; a physical therapist providing services to
patients in their homes within an area of employment; an individual
making a court appearance; an individual lunching with a customer
representative at a restaurant; or an individual conducting research at
a library.
(3) Examples of ``worksite'' locations based on worker's job
functions: A computer engineer who works on projects or accounts at
different locations for weeks or months at a time; a sales
representative assigned on a continuing basis in an area away from his/
her ``home office;'' an auditor who works for extended periods at the
customer's offices; a physical therapist who ``fills in'' for full-time
employees of health care facilities for extended periods; or a physical
therapist who works for a contractor whose business is to provide
staffing on an ``as needed'' basis at hospitals, nursing homes, or
clinics.
(4) Whenever an H-1B worker performs work at a location which is not
a ``worksite'' (under the criterion in paragraph (1)(i) or (1)(ii) of
this definition), that worker's ``place of employment'' or ``worksite''
for purposes of H-1B obligations is the worker's home station or regular
work location. The employer's obligations regarding notice, prevailing
wage and working conditions are focused on the home station ``place of
employment'' rather than on the above-described location(s) which do not
constitute worksite(s) for these purposes. However, whether or not a
location is considered to be a ``worksite''/''place of employment'' for
an H-1B nonimmigrant, the employer is required to provide reimbursement
to the H-1B nonimmigrant for expenses incurred in traveling to that
location on the employer's business, since such expenses are considered
to be ordinary business expenses of employers (Sec. Sec.
655.731(c)(7)(iii)(C); 655.731(c)(9)). In determining the worker's
``place of employment'' or ``worksite,'' the Department will look
carefully at situations which appear to be contrived or abusive; the
Department would seriously question any situation where the H-1B
nonimmigrant's purported ``place of employment'' is a location other
than where the worker spends most of his/her work time, or where the
purported ``area of employment'' does not include the location(s) where
the worker spends most of his/her work time.
Required wage rate means the rate of pay which is the higher of:
(1) The actual wage for the specific employment in question; or
(2) The prevailing wage rate (determined as of the time of filing
the LCA application) for the occupation in which the H-1B, H-1B1, or E-3
nonimmigrant is to be employed in the geographic area of intended
employment. The prevailing wage rate must be no less than the minimum
wage required by Federal, State, or local law.
Secretary means the Secretary of Labor or the Secretary's designee.
Specialty occupation:
(1) For purposes of the E-3 and H-1B programs (but not the H-1B1
program), specialty occupation means an occupation that requires
theoretical and practical application of a body of specialized
knowledge, and attainment of a bachelor's or higher degree (or its
equivalent) in the specific specialty as a minimum for entry into the
occupation in the United States. The nonimmigrant in a specialty
occupation shall possess the following qualifications:
(i) Full state licensure to practice in the occupation, if licensure
is required for the occupation;
(ii) Completion of the required degree; or
(iii) Experience in the specialty equivalent to the completion of
such degree and recognition of expertise in the specialty through
progressively responsible positions relating to the specialty. INA, 8
U.S.C. 1184(i)(1) and (2).
(2) For purposes of the H-1B1 program, specialty occupation means an
occupation that requires theoretical and practical application of a body
of specialized knowledge, and attainment of a bachelor's or higher
degree (or its equivalent) in the specific specialty as a minimum for
entry into the occupation in the United States. INA, 8 U.S.C.
1184(i)(3). For H-1B1 nonimmigrants from Chile, additional occupations
that
[[Page 421]]
qualify as specialty occupations are Disaster Relief Claims Adjuster,
Management Consultant, Agricultural Manager, and Physical Therapist, as
defined in Appendix 14.3(D)(2) of the United States-Chile Free Trade
Agreement. For H-1B1 nonimmigrants from Singapore, additional
occupations that qualify as specialty occupations are Disaster Relief
Claims Adjuster and Management Consultant, as defined in Appendix 11A.2
of the United States-Singapore Free Trade Agreement.
(3) Determinations of specialty occupation and of nonimmigrant
qualifications for the H-1B and H-1B1 programs are not made by the
Department of Labor, but by the Department of State and/or United States
Citizenship and Immigration Services (USCIS) of the Department of
Homeland Security in accordance with the procedures of those agencies
for processing visas, petitions, extensions of stay, or requests for
change of nonimmigrant status for H-1B or H-1B1 nonimmigrants.
Specific employment in question means the set of duties and
responsibilities performed or to be performed by the H-1B nonimmigrant
at the place of employment.
State means one of the 50 States, the District of Columbia, Guam,
Puerto Rico, and the U.S. Virgin Islands.
State Workforce Agency, formerly State Employment Security Agency or
SESA means the State agency which, under the State Administrator, is
designated by the Governor to administer Wagner-Peyser Act funded
employment and workforce information services (State agency) and the
State unemployment compensation program.
Strike means a labor dispute wherein employees engage in a concerted
stoppage of work (including stoppage by reason of the expiration of a
collective-bargaining agreement) or engage in any concerted slowdown or
other concerted interruption of operation.
United States worker (``U.S. worker'') means an employee who is
either
(1) A citizen or national of the United States, or
(2) An alien who is lawfully admitted for permanent residence in the
United States, is admitted as a refugee under section 207 of the INA, is
granted asylum under section 208 of the INA, or is an immigrant
otherwise authorized (by the INA or by DHS) to be employed in the United
States.
Wage rate means the remuneration (exclusive of fringe benefits) to
be paid, stated in terms of amount per hour, day, month or year (see
definition of ``Required Wage Rate'').
[59 FR 65659, 65676, Dec. 20, 1994, as amended at 65 FR 80211, Dec. 20,
2000; 69 FR 68228, Nov. 23, 2004; 70 FR 72561, Dec. 5, 2005; 71 FR
35520, June 21, 2006; 73 FR 19948, Apr. 11, 2008; 73 FR 78067, Dec. 19,
2008]
Sec. 655.720 Where are labor condition applications (LCAs) to be filed
and processed?
(a) Employers must file all LCAs regarding H-1B, H-1B1, and E-3
nonimmigrants through the electronic submission procedure identified in
paragraph (b) of this section except as provided in the next sentence.
If a physical disability or lack of access to the Internet prevents an
employer from using the electronic filing system, an LCA may be filed by
U.S. Mail in accordance with paragraphs (c) and (d) of this section.
Requirements for signing, providing public access to, and use of
certified LCAs are identified in Sec. 655.730(c). If the LCA is
certified by DOL, notice of the certification will be sent to the
employer by the same means that the employer used to submit the LCA,
that is, electronically where the Form ETA 9035E was submitted
electronically, and by U.S. Mail where the Form ETA 9035 was submitted
by U.S. Mail.
(b) Electronic submission. Employers must file the electronic LCA,
Form ETA 9035E, through the Department of Labor's Web site at http://
www.lca.doleta.gov. The employer must follow instructions for electronic
submission posted on the Web site. In the event ETA implements the
Government Paperwork Elimination Act (44 U.S.C.A. 3504 n.) and/or the
Electronic Records and Signatures in Global and National Commerce Act
(E-SIGN) (15 U.S.C. 7001-7006) for the submission and certification of
the Form ETA 9035E, instructions will be provided (by public notice(s)
and by instructions on the Department's Web site) to employers as to how
the requirements of these
[[Page 422]]
statutes will be met in the Form ETA 9035E procedures.
(c) Approval to file LCAs by U.S. Mail. (1) Employers with physical
disabilities or lacking Internet access and wishing to file LCAs by U.S.
Mail may submit a written request to the Chief, Division of Foreign
Labor Certification in accordance with paragraphs (c)(2) through (c)(4)
of this section. The ETA shall identify the address to which such
written request shall be mailed in a Notice in the Federal Register and
on the Department's Web site at http://www.lca.doleta.gov.
(2) The written request must establish the employer's need to file
by U.S. Mail, including providing an explanation of how physical
disability or lack of access to the Internet prevents the employer from
using the electronic filing system. No particular form or format is
required for this request.
(3) ETA will review the submitted justification, and may require the
employer to submit supporting documentation. In the case of employers
asserting a lack of Internet access, supporting documentation could, for
example, consist of documentation that the Internet cannot be accessed
from the employer's worksite or physical location (for example because
no Internet service provider serves the site), and there is no publicly
available Internet access, at public libraries or elsewhere, within a
reasonable distance of the employer. In the case of employers with
physical disabilities supporting documentation could, for example,
consist of physicians' statements or invoices for medical devices or
aids relevant to the employer's disability.
(4) ETA may approve or deny employers' requests to submit LCAs by
U.S. Mail. Approvals shall be valid for 1 year from the date of
approval.
(d) U.S. Mail. If an employer has a valid approval to file by U.S.
Mail in accordance with paragraph (c) of this section, the employer may
use Form ETA 9035 and send it by U.S. Mail to ETA. ETA shall publish a
Notice in the Federal Register identifying the address, and any future
address changes, to which paper LCAs must be mailed, and shall also post
these addresses on the DOL Internet Web site at http://
www.lca.doleta.gov. When Form ETA 9035 is submitted by U.S. Mail, the
form must bear the original signature of the employer (or that of the
employer's authorized agent or representative) at the time it is
submitted to ETA.
(e) The ETA National Office is responsible for policy questions and
other issues regarding LCAs. Prevailing wage challenges are handled in
accordance with the procedures identified in Sec. 655.731(a)(2).
[70 FR 72561, Dec. 5, 2005, as amended at 73 FR 19949, Apr. 11, 2008]
Sec. 655.721 [Reserved]
Sec. 655.730 What is the process for filing a labor condition
application?
This section applies to the filing of labor condition applications
for H-1B, H-1B1, and E-3 nonimmigrants. The term H-1B is meant to apply
to all three categories unless exceptions are specifically noted.
(a) Who must submit labor condition applications? An employer, or
the employer's authorized agent or representative, which meets the
definition of ``employer'' set forth in Sec. 655.715 and intends to
employ an H-1B nonimmigrant in a specialty occupation or as a fashion
model of distinguished merit and ability shall submit an LCA to the
Department.
(b) Where and when is an LCA to be submitted? An LCA shall be
submitted by the employer to ETA in accordance with the procedure
prescribed in Sec. 655.720 no earlier than six months before the
beginning date of the period of intended employment shown on the LCA. It
is the employer's responsibility to ensure ETA receives a complete and
accurate LCA. Incomplete or obviously inaccurate LCAs will not be
certified by ETA. ETA will process all LCAs sequentially and will
usually make a determination to certify or not certify an LCA within
seven working days of the date ETA receives the LCA. LCAs filed by U.S.
Mail may not be processed as quickly as those filed electronically.
(c) What is to be submitted and what are its contents? Form ETA 9035
or ETA 9035E.
[[Page 423]]
(1) General. The employer (or the employer's authorized agent or
representative) must submit to ETA one completed and dated LCA as
prescribed in Sec. 655.720. The electronic LCA, Form ETA 9035E, is
found on the DOL Web site where the electronic submission is made, at
http://www.lca.doleta.gov. Copies of the paper form, Form ETA 9035, and
cover pages Form ETA 9035CP are available on the DOL Web site at http://
www.ows.doleta.gov and from the ETA National Office, and may be used by
employers with approval under Sec. 655.720 to file by U.S. Mail during
the approval's validity period.
(2) Undertaking of the Employer. In submitting the LCA, and by
affixing the signature of the employer or its authorized agent or
representative on Form ETA 9035E or Form ETA 9035, the employer (or its
authorized agent or representative on behalf of the employer) attests
the statements in the LCA are true and promises to comply with the labor
condition statements (attestations) specifically identified in Forms ETA
9035E and ETA 9035, as well as set forth in full in the Form ETA 9035CP.
The labor condition statements (attestations) are described in detail in
Sec. Sec. 655.731 through 655.734, and the additional attestations for
LCAs filed by certain H-1B-dependent employers and employers found to
have willfully violated the H-1B program requirements are described in
Sec. Sec. 655.736 through 655.739.
(3) Signed Originals, Public Access, and Use of Certified LCAs. In
accordance with Sec. 655.760(a) and (a)(1), the employer must maintain
in its files and make available for public examination the LCA as
submitted to ETA and as certified by ETA. When Form ETA 9035E is
submitted electronically, a signed original is created by the employer
(or by the employer's authorized agent or representative) printing out
and signing the form immediately upon certification by ETA. When Form
ETA 9035 is submitted by U.S. Mail as permitted by Sec. 655.720(a), the
form must bear the original signature of the employer (or of the
employer's authorized agent or representative) when submitted to ETA.
For H-1B visas only, the employer must submit a copy of the signed,
certified Form ETA 9035 or ETA 9035E to the U.S. Citizenship and
Immigration Services (USCIS, formerly INS) in support of the Form I-129
petition, thereby reaffirming the employer's acceptance of all of the
attestation obligations in accordance with 8 CFR 214.2(h)(4)(iii)(B)(2).
(4) Contents of LCA. Each LCA shall identify the occupational
classification for which the LCA is being submitted and shall state:
(i) The occupation, by Dictionary of Occupational Titles (DOT)
Three-Digit Occupational Groups code and by the employer's own title for
the job;
(ii) The number of nonimmigrants sought;
(iii) The gross wage rate to be paid to each nonimmigrant, expressed
on an hourly, weekly, biweekly, monthly, or annual basis;
(iv) The starting and ending dates of the nonimmigrants' employment;
(v) The place(s) of intended employment;
(vi) The prevailing wage for the occupation in the area of intended
employment and the specific source (e.g., name of published survey)
relied upon by the employer to determine the wage. If the wage is
obtained from a SESA, now known as a State Workforce Agency (SWA), the
appropriate box must be checked and the wage must be stated; the source
for a wage obtained from a source other than a SWA must be identified
along with the wage; and
(vii) For applications filed regarding H-1B nonimmigrants only (and
not applications regarding H-1B1 and E-3 nonimmigrants), the employer's
status as to whether or not the employer is H-1B-dependent and/or a
willful violator, and, if the employer is H-1B-dependent and/or a
willful violator, whether the employer will use the application only in
support of petitions for exempt H-1B nonimmigrants.
(5) Multiple positions and/or places of employment. The employer
shall file a separate LCA for each occupation in which the employer
intends to employ one or more nonimmigrants, but the LCA may cover more
than one intended position (employment opportunity) within that
occupation. All intended places of employment shall be identified on the
LCA; the employer
[[Page 424]]
may file one or more additional LCAs to identify additional places of
employment. Separate LCAs must be filed for H-1B, H-1B1, and E-3
nonimmigrants.
(6) Full-time and part-time jobs. The position(s) covered by the LCA
may be either full-time or part-time; full-time and part-time positions
can not be combined on a single LCA.
(d) What attestations does the LCA contain? An employer's LCA shall
contain the labor condition statements referenced in Sec. Sec. 655.731
through 655.734, and Sec. 655.736 through 655.739 (if applicable),
which provide that no individual may be admitted or provided status as
an H-1B nonimmigrant in an occupational classification unless the
employer has filed with the Secretary an application stating that:
(1) The employer is offering and will offer during the period of
authorized employment to H-1B nonimmigrants no less than the greater of
the following wages (such offer to include benefits and eligibility for
benefits provided as compensation for services, which are to be offered
to the nonimmigrants on the same basis and in accordance with the same
criteria as the employer offers such benefits to U.S. workers):
(i) The actual wage paid to the employer's other employees at the
worksite with similar experience and qualifications for the specific
employment in question; or
(ii) The prevailing wage level for the occupational classification
in the area of intended employment;
(2) The employer will provide working conditions for such
nonimmigrants that will not adversely affect the working conditions of
workers similarly employed (including benefits in the nature of working
conditions, which are to be offered to the nonimmigrants on the same
basis and in accordance with the same criteria as the employer offers
such benefits to U.S. workers);
(3) There is not a strike or lockout in the course of a labor
dispute in the occupational classification at the place of employment;
(4) The employer has provided and will provide notice of the filing
of the labor condition application to:
(i)(A) The bargaining representative of the employer's employees in
the occupational classification in the area of intended employment for
which the H-1B nonimmigrants are sought, in the manner described in
Sec. 655.734(a)(1)(i); or
(B) If there is no such bargaining representative, affected workers
by providing electronic notice of the filing of the LCA or by posting
notice in conspicuous locations at the place(s) of employment, in the
manner described in Sec. 655.734(a)(1)(ii); and
(ii) H-1B nonimmigrants by providing a copy of the LCA to each H-1B
nonimmigrant at the time that such nonimmigrant actually reports to
work, in the manner described in Sec. 655.734(a)(2).
(5) For applications filed regarding H-1B nonimmigrants only (and
not applications regarding H-1B1 or E-3 nonimmigrants), the employer has
determined its status concerning H-1B-dependency and/or willful violator
(as described in Sec. 655.736), has indicated such status, and if
either such status is applicable to the employer, has indicated whether
the LCA will be used only for exempt H-1B nonimmigrant(s), as described
in Sec. 655.737.
(6) The employer has provided the information about the occupation
required in paragraph (c) of this section.
(e) Change in employer's corporate structure or identity. (1) Where
an employer corporation changes its corporate structure as the result of
an acquisition, merger, ``spin-off,'' or other such action, the new
employing entity is not required to file new LCAs and H-1B petitions
with respect to the H-1B nonimmigrants transferred to the employ of the
new employing entity (regardless of whether there is a change in the
Federal Employer Identification Number (FEIN)), provided that the new
employing entity maintains in its records a list of the H-1B
nonimmigrants transferred to the employ of the new employing entity, and
maintains in the public access file(s) (see Sec. 655.760) a document
containing all of the following:
(i) Each affected LCA number and its date of certification;
(ii) A description of the new employing entity's actual wage system
applicable to H-1B nonimmigrant(s) who become employees of the new
employing entity;
[[Page 425]]
(iii) The Federal Employer Identification Number (FEIN) of the new
employing entity (whether or not different from that of the predecessor
entity); and
(iv) A sworn statement by an authorized representative of the new
employing entity expressly acknowledging such entity's assumption of all
obligations, liabilities and undertakings arising from or under
attestations made in each certified and still effective LCA filed by the
predecessor entity. Unless such statement is executed and made available
in accordance with this paragraph, the new employing entity shall not
employ any of the predecessor entity's H-1B nonimmigrants without filing
new LCAs and petitions for such nonimmigrants. The new employing
entity's statement shall include such entity's explicit agreement to:
(A) Abide by the DOL's H-1B regulations applicable to the LCAs;
(B) Maintain a copy of the statement in the public access file (see
Sec. 655.760); and
(C) Make the document available to any member of the public or the
Department upon request.
(2) Notwithstanding the provisions of paragraph (e)(1) of this
section, the new employing entity must file new LCA(s) and H-1B
petition(s) when it hires any new H-1B nonimmigrant(s) or seeks
extension(s) of H-1B status for existing H-1B nonimmigrant(s). In other
words, the new employing entity may not utilize the predecessor entity's
LCA(s) to support the hiring or extension of any H-1B nonimmigrant after
the change in corporate structure.
(3) A change in an employer's H-1B-dependency status which results
from the change in the corporate structure has no effect on the
employer's obligations with respect to its current H-1B nonimmigrant
employees. However, the new employing entity shall comply with Sec.
655.736 concerning H-1B-dependency and/or willful-violator status and
Sec. 655.737 concerning exempt H-1B nonimmigrants, in the event that
such entity seeks to hire new H-1B nonimmigrant(s) or to extend the H-1B
status of existing H-1B nonimmigrants. (See Sec. 655.736(d)(6).)
[65 FR 80212, Dec. 20, 2000, as amended at 66 FR 63301, Dec. 5, 2001; 69
FR 68228, Nov. 23, 2004; 70 FR 72562, Dec. 5, 2005; 71 FR 35521, June
21, 2006; 73 FR 19949, Apr. 11, 2008]
Sec. 655.731 What is the first LCA requirement, regarding wages?
An employer seeking to employ H-1B nonimmigrants in a specialty
occupation or as a fashion model of distinguished merit and ability
shall state on Form ETA 9035 or 9035E that it will pay the H-1B
nonimmigrant the required wage rate. For the purposes of this section,
``H-1B'' includes ``E-3 and H-1B1'' as well.
(a) Establishing the wage requirement. The first LCA requirement
shall be satisfied when the employer signs Form ETA 9035 or 9035E
attesting that, for the entire period of authorized employment, the
required wage rate will be paid to the H-1B nonimmigrant(s); that is,
that the wage shall be the greater of the actual wage rate (as specified
in paragraph (a)(1) of this section) or the prevailing wage (as
specified in paragraph (a)(2) of this section). The wage requirement
includes the employer's obligation to offer benefits and eligibility for
benefits provided as compensation for services to H-1B nonimmigrants on
the same basis, and in accordance with the same criteria, as the
employer offers to U.S. workers.
(1) The actual wage is the wage rate paid by the employer to all
other individuals with similar experience and qualifications for the
specific employment in question. In determining such wage level, the
following factors may be considered: Experience, qualifications,
education, job responsibility and function, specialized knowledge, and
other legitimate business factors. ``Legitimate business factors,'' for
purposes of this section, means those that it is reasonable to conclude
are necessary because they conform to recognized principles or can be
demonstrated by accepted rules and standards. Where there are other
employees with substantially similar experience and qualifications in
the specific employment in question--i.e., they have substantially the
same duties and responsibilities as the H-1B nonimmigrant--the actual
[[Page 426]]
wage shall be the amount paid to these other employees. Where no such
other employees exist at the place of employment, the actual wage shall
be the wage paid to the H-1B nonimmigrant by the employer. Where the
employer's pay system or scale provides for adjustments during the
period of the LCA--e.g., cost of living increases or other periodic
adjustments, or the employee moves to a more advanced level in the same
occupation--such adjustments shall be provided to similarly employed H-
1B nonimmigrants (unless the prevailing wage is higher than the actual
wage).
(2) The prevailing wage for the occupational classification in the
area of intended employment must be determined as of the time of filing
the application. The employer shall base the prevailing wage on the best
information available as of the time of filing the application. Except
as provided in this section, the employer is not required to use any
specific methodology to determine the prevailing wage and may utilize a
wage obtained from an OFLC NPC (OES), an independent authoritative
source, or other legitimate sources of wage data. One of the following
sources shall be used to establish the prevailing wage:
(i) A collective bargaining agreement which was negotiated at arms-
length between a union and the employer which contains a wage rate
applicable to the occupation;
(ii) If the job opportunity is in an occupation which is not covered
by paragraph (a)(2)(i) of this section, the prevailing wage shall be the
arithmetic mean of the wages of workers similarly employed, except that
the prevailing wage shall be the median when provided by paragraphs
(a)(2)(ii)(A), (b)(3)(iii)(B)(2), and (b)(3)(iii)(C)(2) of this section.
The prevailing wage rate shall be based on the best information
available. The following prevailing wage sources may be used:
(A) OFLC National Processing Center (NPC) determination. Prior to
January 1, 2010, the SWA having jurisdiction over the area of intended
employment shall continue to receive and process prevailing wage
determination requests, but shall do so in accordance with these
regulatory provisions and Department guidance. On or after January 1,
2010, the NPC shall receive and process prevailing wage determination
requests in accordance with these regulations and with Department
guidance. Upon receipt of a written request for a PWD on or after
January 1, 2010, the NPC will determine whether the occupation is
covered by a collective bargaining agreement which was negotiated at
arms length, and, if not, determine the arithmetic mean of wages of
workers similarly employed in the area of intended employment. The wage
component of the Bureau of Labor Statistics Occupational Employment
Statistics survey shall be used to determine the arithmetic mean, unless
the employer provides an acceptable survey. The NPC shall determine the
wage in accordance with secs. 212(n) and 212(t) of the INA. If an
acceptable employer-provided wage survey provides a median and does not
provide an arithmetic mean, the median shall be the prevailing wage
applicable to the employer's job opportunity. In making a PWD, the
Chicago NPC will follow 20 CFR 656.40 and other administrative
guidelines or regulations issued by ETA. The Chicago NPC shall specify
the validity period of the PWD, which in no event shall be for less than
90 days or more than 1 year from the date of the determination.
(1) An employer who chooses to utilize an NPC PWD shall file the
labor condition application within the validity period of the prevailing
wage as specified in the PWD. Any employer desiring review of an NPC
PWD, including judicial review, shall follow the appeal procedures at 20
CFR 656.41. Employers which challenge an NPC PWD under 20 CFR 656.41
must obtain a ruling prior to filing an LCA. In any challenge, the
Department and the NPC shall not divulge any employer wage data
collected under the promise of confidentiality. Once an employer obtains
a PWD from the NPC and files an LCA supported by that PWD, the employer
is deemed to have accepted the PWD (as to the amount of the wage) and
thereafter may not contest the legitimacy of the PWD by filing an appeal
with the CO (see 20 CFR 656.41) or in an investigation or enforcement
action.
[[Page 427]]
(2) If the employer is unable to wait for the NPC to produce the
requested prevailing wage for the occupation in question, or for the CO
and/or the BALCA to issue a decision, the employer may rely on other
legitimate sources of available wage information as set forth in
paragraphs (a)(2)(ii)(B) and (C) of this section. If the employer later
discovers, upon receipt of the PWD from the NPC, that the information
relied upon produced a wage below the final PWD and the employer was
paying the NPC-determined wage, no wage violation will be found if the
employer retroactively compensates the H-2B nonimmigrant(s) for the
difference between wage paid and the prevailing wage, within 30 days of
the employer's receipt of the PWD.
(3) In all situations where the employer obtains the PWD from the
NPC, the Department will deem that PWD as correct as to the amount of
the wage. Nevertheless, the employer must maintain a copy of the NPC
PWD. A complaint alleging inaccuracy of an NPC PWD, in such cases, will
not be investigated.
(B) An independent authoritative source. The employer may use an
independent authoritative wage source in lieu of an NPC PWD. The
independent authoritative source survey must meet all the criteria set
forth in paragraph (b)(3)(iii)(B) of this section.
(C) Another legitimate source of wage information. The employer may
rely on other legitimate sources of wage data to obtain the prevailing
wage. The other legitimate source survey must meet all the criteria set
forth in paragraph (b)(3)(iii)(C) of this section. The employer will be
required to demonstrate the legitimacy of the wage in the event of an
investigation.
(iii) For purposes of this section, ``similarly employed'' means
``having substantially comparable jobs in the occupational
classification in the area of intended employment,'' except that if a
representative sample of workers in the occupational category can not be
obtained in the area of intended employment, ``similarly employed''
means:
(A) Having jobs requiring a substantially similar level of skills
within the area of intended employment; or
(B) If there are no substantially comparable jobs in the area of
intended employment, having substantially comparable jobs with employers
outside of the area of intended employment.
(iv) A prevailing wage determination for LCA purposes made pursuant
to this section shall not permit an employer to pay a wage lower than
required under any other applicable Federal, state or local law.
(v) Where a range of wages is paid by the employer to individuals in
an occupational classification or among individuals with similar
experience and qualifications for the specific employment in question, a
range is considered to meet the prevailing wage requirement so long as
the bottom of the wage range is at least the prevailing wage rate.
(vi) The employer shall enter the prevailing wage on the LCA in the
form in which the employer will pay the wage (e.g., an annual salary or
an hourly rate), except that in all cases the prevailing wage must be
expressed as an hourly wage if the H-1B nonimmigrant will be employed
part-time. Where an employer obtains a prevailing wage determination
(from any of the sources identified in paragraphs (a)(2)(i) and (ii) of
this section) that is expressed as an hourly rate, the employer may
convert this determination to a yearly salary by multiplying the hourly
rate by 2080. Conversely, where an employer obtains a prevailing wage
(from any of these sources) that is expressed as a yearly salary, the
employer may convert this determination to an hourly rate by dividing
the salary by 2080.
(vii) In computing the prevailing wage for a job opportunity in an
occupational classification in an area of intended employment in the
case of an employee of an institution of higher education or an
affiliated or related nonprofit entity, a nonprofit research
organization, or a Governmental research organization as these terms are
defined in 20 CFR 656.40(e), the prevailing wage level shall only take
into account employees at such institutions and organizations in the
area of intended employment.
(viii) An employer may file more than one LCA for the same
occupational classification in the same area
[[Page 428]]
of employment and, in such circumstances, the employer could have H-1B
employees in the same occupational classification in the same area of
employment, brought into the U.S. (or accorded H-1B status) based on
petitions approved pursuant to different LCAs (filed at different times)
with different prevailing wage determinations. Employers are advised
that the prevailing wage rate as to any particular H-1B nonimmigrant is
prescribed by the LCA which supports that nonimmigrant's H-1B petition.
The employer is required to obtain the prevailing wage at the time that
the LCA is filed (see paragraph (a)(2) of this section). The LCA is
valid for the period certified by ETA, and the employer must satisfy all
the LCA's requirements (including the required wage which encompasses
both prevailing and actual wage rates) for as long as any H-1B
nonimmigrants are employed pursuant to that LCA (Sec. 655.750). Where
new nonimmigrants are employed pursuant to a new LCA, that new LCA
prescribes the employer's obligations as to those new nonimmigrants. The
prevailing wage determination on the later/subsequent LCA does not
``relate back'' to operate as an ``update'' of the prevailing wage for
the previously-filed LCA for the same occupational classification in the
same area of employment. However, employers are cautioned that the
actual wage component to the required wage may, as a practical matter,
eliminate any wage-payment differentiation among H-1B employees based on
different prevailing wage rates stated in applicable LCAs. Every H-1B
nonimmigrant is to be paid in accordance with the employer's actual wage
system, and thus is to receive any pay increases which that system
provides.
(3) Once the prevailing wage rate is established, the H-1B employer
then shall compare this wage with the actual wage rate for the specific
employment in question at the place of employment and must pay the H-1B
nonimmigrant at least the higher of the two wages.
(b) Documentation of the wage statement. (1) The employer shall
develop and maintain documentation sufficient to meet its burden of
proving the validity of the wage statement required in paragraph (a) of
this section and attested to on Form ETA 9035 or 9035E. The
documentation shall be made available to DOL upon request. Documentation
shall also be made available for public examination to the extent
required by Sec. 655.760. The employer shall also document that the
wage rate(s) paid to H-1B nonimmigrant(s) is(are) no less than the
required wage rate(s). The documentation shall include information about
the employer's wage rate(s) for all other employees for the specific
employment in question at the place of employment, beginning with the
date the labor condition application was submitted and continuing
throughout the period of employment. The records shall be retained for
the period of time specified in Sec. 655.760. The payroll records for
each such employee shall include:
(i) Employee's full name;
(ii) Employee's home address;
(iii) Employee's occupation;
(iv) Employee's rate of pay;
(v) Hours worked each day and each week by the employee if:
(A) The employee is paid on other than a salary basis (e.g., hourly,
piece-rate; commission); or
(B) With respect only to H-1B nonimmigrants, the worker is a part-
time employee (whether paid a salary or an hourly rate).
(vi) Total additions to or deductions from pay each pay period, by
employee; and
(vii) Total wages paid each pay period, date of pay and pay period
covered by the payment, by employee.
(viii) Documentation of offer of benefits and eligibility for
benefits provided as compensation for services on the same basis, and in
accordance with the same criteria, as the employer offers to U.S.
workers (see paragraph (c)(3) of this section):
(A) A copy of any document(s) provided to employees describing the
benefits that are offered to employees, the eligibility and
participation rules, how costs are shared, etc. (e.g., summary plan
descriptions, employee handbooks, any special or employee-specific
notices that might be sent);
(B) A copy of all benefit plans or other documentation describing
benefit
[[Page 429]]
plans and any rules the employer may have for differentiating benefits
among groups of workers;
(C) Evidence as to what benefits are actually provided to U.S.
workers and H-1B nonimmigrants, including evidence of the benefits
selected or declined by employees where employees are given a choice of
benefits;
(D) For multinational employers who choose to provide H-1B
nonimmigrants with ``home country'' benefits, evidence of the benefits
provided to the nonimmigrant before and after he/she went to the United
States. See paragraph (c)(3)(iii)(C) of this section.
(2) Actual wage. In addition to payroll data required by paragraph
(b)(1) of this section (and also by the Fair Labor Standards Act), the
employer shall retain documentation specifying the basis it used to
establish the actual wage. The employer shall show how the wage set for
the H-1B nonimmigrant relates to the wages paid by the employer to all
other individuals with similar experience and qualifications for the
specific employment in question at the place of employment. Where
adjustments are made in the employer's pay system or scale during the
validity period of the LCA, the employer shall retain documentation
explaining the change and clearly showing that, after such adjustments,
the wages paid to the H-1B nonimmigrant are at least the greater of the
adjusted actual wage or the prevailing wage for the occupation and area
of intended employment.
(3) Prevailing wage. The employer also shall retain documentation
regarding its determination of the prevailing wage. This source
documentation shall not be submitted to ETA with the labor condition
application, but shall be retained at the employer's place of business
for the length of time required in Sec. 655.760(c). Such documentation
shall consist of the documentation described in paragraph (b)(3)(i),
(ii), or (iii) of this section and the documentation described in
paragraph (b)(1) of this section.
(i) If the employer used a wage determination issued pursuant to the
provisions of the Davis-Bacon Act, 40 U.S.C. 276a et seq. (see 29 CFR
part 1), or the McNamara-O'Hara Service Contract Act, 41 U.S.C. 351 et
seq. (see 29 CFR part 4), the documentation shall include a copy of the
determination showing the wage rate for the occupation in the area of
intended employment.
(ii) If the employer used an applicable wage rate from a union
contract which was negotiated at arms-length between a union and the
employer, the documentation shall include an excerpt from the union
contract showing the wage rate(s) for the occupation.
(iii) If the employer did not use a wage covered by the provisions
of paragraph (b)(3)(i) or (b)(3)(ii) of this section, the employer's
documentation shall consist of:
(A) A copy of the prevailing wage finding from the NPC for the
occupation within the area of intended employment.
(B) A copy of the prevailing wage survey for the occupation within
the area of intended employment published by an independent
authoritative source. For purposes of this paragraph (b)(3)(iii)(B), a
prevailing wage survey for the occupation in the area of intended
employment published by an independent authoritative source shall mean a
survey of wages published in a book, newspaper, periodical, loose-leaf
service, newsletter, or other similar medium, within the 24-month period
immediately preceding the filing of the employer's application. Such
survey shall:
(1) Reflect the weighted average wage paid to workers similarly
employed in the area of intended employment;
(2) Reflect the median wage of workers similarly employed in the
area of intended employment if the survey provides such a median and
does not provide a weighted average wage of workers similarly employed
in the area of intended employment;
(3) Be based upon recently collected data--e.g., within the 24-month
period immediately preceding the date of publication of the survey; and
(4) Represent the latest published prevailing wage finding by the
independent authoritative source for the occupation in the area of
intended employment; or
(C) A copy of the prevailing wage survey or other source data
acquired from
[[Page 430]]
another legitimate source of wage information that was used to make the
prevailing wage determination. For purposes of this paragraph
(b)(3)(iii)(C), a prevailing wage provided by another legitimate source
of such wage information shall be one which:
(1) Reflects the weighted average wage paid to workers similarly
employed in the area of intended employment;
(2) Reflect the median wage of workers similarly employed in the
area of intended employment if the survey provides such a median and
does not provide a weighted average wage of workers similarly employed
in the area of intended employment;
(3) Is based on the most recent and accurate information available;
and
(4) Is reasonable and consistent with recognized standards and
principles in producing a prevailing wage.
(c) Satisfaction of required wage obligation. (1) The required wage
must be paid to the employee, cash in hand, free and clear, when due,
except that deductions made in accordance with paragraph (c)(9) of this
section may reduce the cash wage below the level of the required wage.
Benefits and eligibility for benefits provided as compensation for
services must be offered in accordance with paragraph (c)(3) of this
section.
(2) ``Cash wages paid,'' for purposes of satisfying the H-1B
required wage, shall consist only of those payments that meet all the
following criteria:
(i) Payments shown in the employer's payroll records as earnings for
the employee, and disbursed to the employee, cash in hand, free and
clear, when due, except for deductions authorized by paragraph (c)(9) of
this section;
(ii) Payments reported to the Internal Revenue Service (IRS) as the
employee's earnings, with appropriate withholding for the employee's tax
paid to the IRS (in accordance with the Internal Revenue Code of 1986,
26 U.S.C. 1, et seq.);
(iii) Payments of the tax reported and paid to the IRS as required
by the Federal Insurance Contributions Act, 26 U.S.C. 3101, et seq.
(FICA). The employer must be able to document that the payments have
been so reported to the IRS and that both the employer's and employee's
taxes have been paid except that when the H-1B nonimmigrant is a citizen
of a foreign country with which the President of the United States has
entered into an agreement as authorized by section 233 of the Social
Security Act, 42 U.S.C. 433 (i.e., an agreement establishing a
totalization arrangement between the social security system of the
United States and that of the foreign country), the employer's
documentation shall show that all appropriate reports have been filed
and taxes have been paid in the employee's home country.
(iv) Payments reported, and so documented by the employer, as the
employee's earnings, with appropriate employer and employee taxes paid
to all other appropriate Federal, State, and local governments in
accordance with any other applicable law.
(v) Future bonuses and similar compensation (i.e., unpaid but to-be-
paid) may be credited toward satisfaction of the required wage
obligation if their payment is assured (i.e., they are not conditional
or contingent on some event such as the employer's annual profits). Once
the bonuses or similar compensation are paid to the employee, they must
meet the requirements of paragraphs (c)(2)(i) through (iv) of this
section (i.e., recorded and reported as ``earnings'' with appropriate
taxes and FICA contributions withheld and paid).
(3) Benefits and eligibility for benefits provided as compensation
for services (e.g., cash bonuses; stock options; paid vacations and
holidays; health, life, disability and other insurance plans; retirement
and savings plans) shall be offered to the H-1B nonimmigrant(s) on the
same basis, and in accordance with the same criteria, as the employer
offers to U.S. workers.
(i) For purposes of this section, the offer of benefits ``on the
same basis, and in accordance with the same criteria'' means that the
employer shall offer H-1B nonimmigrants the same benefit package as it
offers to U.S. workers, and may not provide more strict eligibility or
participation requirements for the H-1B nonimmigrant(s) than for
similarly employed U.S. workers(s) (e.g., full-time
[[Page 431]]
workers compared to full-time workers; professional staff compared to
professional staff). H-1B nonimmigrants are not to be denied benefits on
the basis that they are ``temporary employees'' by virtue of their
nonimmigrant status. An employer may offer greater or additional
benefits to the H-1B nonimmigrant(s) than are offered to similarly
employed U.S. worker(s), provided that such differing treatment is
consistent with the requirements of all applicable nondiscrimination
laws (e.g., Title VII of the 1964 Civil Rights Act, 42 U.S.C. 2000e-
2000e17). Offers of benefits by employers shall be made in good faith
and shall result in the H-1B nonimmigrant(s)'s actual receipt of the
benefits that are offered by the employer and elected by the H-1B
nonimmigrant(s).
(ii) The benefits received by the H-1B nonimmigrant(s) need not be
identical to the benefits received by similarly employed U.S.
workers(s), provided that the H-1B nonimmigrant is offered the same
benefits package as those workers but voluntarily chooses to receive
different benefits (e.g., elects to receive cash payment rather than
stock option, elects not to receive health insurance because of required
employee contributions, or elects to receive different benefits among an
array of benefits) or, in those instances where the employer is part of
a multinational corporate operation, the benefits received by the H-1B
nonimmigrant are provided in accordance with an employer's practice that
satisfies the requirements of paragraph (c)(3)(iii)(B) or (C) of this
section. In all cases, however, an employer's practice must comply with
the requirements of any applicable nondiscrimination laws (e.g., Title
VII of the 1964 Civil Rights Act, 42 U.S.C. 2000e-2000e17).
(iii) If the employer is part of a multinational corporate operation
(i.e., operates in affiliation with business entities in other
countries, whether as subsidiaries or in some other arrangement), the
following three options (i.e., (A), (B) or (C)) are available to the
employer with respect to H-1B nonimmigrants who remain on the ``home
country'' payroll.
(A) The employer may offer the H-1B nonimmigrant(s) benefits in
accordance with paragraphs (c)(3)(i) and (ii) of this section.
(B) Where an H-1B nonimmigrant is in the U.S. for no more than 90
consecutive calendar days, the employer during that period may maintain
the H-1B nonimmigrant on the benefits provided to the nonimmigrant in
his/her permanent work station (ordinarily the home country), and not
offer the nonimmigrant the benefits that are offered to similarly
employed U.S. workers, provided that the employer affords reciprocal
benefits treatment for any U.S. workers (i.e., allows its U.S.
employees, while working out of the country on a temporary basis away
from their permanent work stations in the United States, or while
working in the United States on a temporary basis away from their
permanent work stations in another country, to continue to receive the
benefits provided them at their permanent work stations). Employers are
cautioned that this provision is available only if the employer's
practices do not constitute an evasion of the benefit requirements, such
as where the H-1B nonimmigrant remains in the United States for most of
the year, but briefly returns to the ``home country'' before any 90-day
period would expire.
(C) Where an H-1B nonimmigrant is in the U.S. for more than 90
consecutive calendar days (or from the point where the worker is
transferred to the U.S. or it is anticipated that the worker will likely
remain in the U.S. more than 90 consecutive days), the employer may
maintain the H-1B nonimmigrant on the benefits provided in his/her home
country (i.e., ``home country benefits'') (and not offer the
nonimmigrant the benefits that are offered to similarly employed U.S.
workers) provided that all of the following criteria are satisfied:
(1) The H-1B nonimmigrant continues to be employed in his/her home
country (either with the H-1B employer or with a corporate affiliate of
the employer);
(2) The H-1B nonimmigrant is enrolled in benefits in his/her home
country (in accordance with any applicable eligibility standards for
such benefits);
[[Page 432]]
(3) The benefits provided in his/her home country are equivalent to,
or equitably comparable to, the benefits offered to similarly employed
U.S. workers (i.e., are no less advantageous to the nonimmigrant);
(4) The employer affords reciprocal benefits treatment for any U.S.
workers while they are working out of the country, away from their
permanent work stations (whether in the United States or abroad), on a
temporary basis (i.e., maintains such U.S. workers on the benefits they
received at their permanent work stations);
(5) If the employer offers health benefits to its U.S. workers, the
employer offers the same plan on the same basis to its H-1B
nonimmigrants in the United States where the employer does not provide
the H-1B nonimmigrant with health benefits in the home country, or the
employer's home-country health plan does not provide full coverage
(i.e., coverage comparable to what he/she would receive at the home work
station) for medical treatment in the United States; and
(6) The employer offers H-1B nonimmigrants who are in the United
States more than 90 continuous days those U.S. benefits which are paid
directly to the worker (e.g., paid vacation, paid holidays, and
bonuses).
(iv) Benefits provided as compensation for services may be credited
toward the satisfaction of the employer's required wage obligation only
if the requirements of paragraph (c)(2) of this section are met (e.g.,
recorded and reported as ``earnings'' with appropriate taxes and FICA
contributions withheld and paid).
(4) For salaried employees, wages will be due in prorated
installments (e.g., annual salary divided into 26 bi-weekly pay periods,
where employer pays bi-weekly) paid no less often than monthly except
that, in the event that the employer intends to use some other form of
nondiscretionary payment to supplement the employee's regular/pro-rata
pay in order to meet the required wage obligation (e.g., a quarterly
production bonus), the employer's documentation of wage payments
(including such supplemental payments) must show the employer's
commitment to make such payment and the method of determining the amount
thereof, and must show unequivocally that the required wage obligation
was met for prior pay periods and, upon payment and distribution of such
other payments that are pending, will be met for each current or future
pay period. An employer that is a school or other educational
institution may apply an established salary practice under which the
employer pays to H-1B nonimmigrants and U.S. workers in the same
occupational classification an annual salary in disbursements over fewer
than 12 months, provided that the nonimmigrant agrees to the compressed
annual salary payments prior to the commencement of the employment and
the application of the salary practice to the nonimmigrant does not
otherwise cause him/her to violate any condition of his/her
authorization under the INA to remain in the U.S.
(5) For hourly-wage employees, the required wages will be due for
all hours worked and/or for any nonproductive time (as specified in
paragraph (c)(7) of this section) at the end of the employee's ordinary
pay period (e.g., weekly) but in no event less frequently than monthly.
(6) Subject to the standards specified in paragraph (c)(7) of this
section (regarding nonproductive status), an H-1B nonimmigrant shall
receive the required pay beginning on the date when the nonimmigrant
``enters into employment'' with the employer.
(i) For purposes of this paragraph (c)(6), the H-1B nonimmigrant is
considered to ``enter into employment'' when he/she first makes him/
herself available for work or otherwise comes under the control of the
employer, such as by waiting for an assignment, reporting for
orientation or training, going to an interview or meeting with a
customer, or studying for a licensing examination, and includes all
activities thereafter.
(ii) Even if the H-1B nonimmigrant has not yet ``entered into
employment'' with the employer (as described in paragraph (c)(6)(i) of
this section), the employer that has had an LCA certified and an H-1B
petition approved for the H-1B nonimmigrant shall pay the nonimmigrant
the required wage beginning 30 days after the date the
[[Page 433]]
nonimmigrant first is admitted into the U.S. pursuant to the petition,
or, if the nonimmigrant is present in the United States on the date of
the approval of the petition, beginning 60 days after the date the
nonimmigrant becomes eligible to work for the employer. For purposes of
this latter requirement, the H-1B nonimmigrant is considered to be
eligible to work for the employer upon the date of need set forth on the
approved H-1B petition filed by the employer, or the date of adjustment
of the nonimmigrant's status by DHS, whichever is later. Matters such as
the worker's obtaining a State license would not be relevant to this
determination.
(7) Wage obligation(s) for H-1B nonimmigrant in nonproductive
status--(i) Circumstances where wages must be paid. If the H-1B
nonimmigrant is not performing work and is in a nonproductive status due
to a decision by the employer (e.g., because of lack of assigned work),
lack of a permit or license, or any other reason except as specified in
paragraph (c)(7)(ii) of this section, the employer is required to pay
the salaried employee the full pro-rata amount due, or to pay the
hourly-wage employee for a full-time week (40 hours or such other number
of hours as the employer can demonstrate to be full-time employment for
hourly employees, or the full amount of the weekly salary for salaried
employees) at the required wage for the occupation listed on the LCA. If
the employer's LCA carries a designation of ``part-time employment,''
the employer is required to pay the nonproductive employee for at least
the number of hours indicated on the I-129 petition filed by the
employer with the DHS and incorporated by reference on the LCA. If the
I-129 indicates a range of hours for part-time employment, the employer
is required to pay the nonproductive employee for at least the average
number of hours normally worked by the H-1B nonimmigrant, provided that
such average is within the range indicated; in no event shall the
employee be paid for fewer than the minimum number of hours indicated
for the range of part-time employment. In all cases the H-1B
nonimmigrant must be paid the required wage for all hours performing
work within the meaning of the Fair Labor Standards Act, 29 U.S.C. 201
et seq.
(ii) Circumstances where wages need not be paid. If an H-1B
nonimmigrant experiences a period of nonproductive status due to
conditions unrelated to employment which take the nonimmigrant away from
his/her duties at his/her voluntary request and convenience (e.g.,
touring the U.S., caring for ill relative) or render the nonimmigrant
unable to work (e.g., maternity leave, automobile accident which
temporarily incapacitates the nonimmigrant), then the employer shall not
be obligated to pay the required wage rate during that period, provided
that such period is not subject to payment under the employer's benefit
plan or other statutes such as the Family and Medical Leave Act (29
U.S.C. 2601 et seq.) or the Americans with Disabilities Act (42 U.S.C.
12101 et seq.). Payment need not be made if there has been a bona fide
termination of the employment relationship. DHS regulations require the
employer to notify the DHS that the employment relationship has been
terminated so that the petition is canceled (8 CFR 214.2(h)(11)), and
require the employer to provide the employee with payment for
transportation home under certain circumstances (8 CFR
214.2(h)(4)(iii)(E)).
(8) If the employee works in an occupation other than that
identified on the employer's LCA, the employer's required wage
obligation is based on the occupation identified on the LCA, and not on
whatever wage standards may be applicable in the occupation in which the
employee may be working.
(9) ``Authorized deductions,'' for purposes of the employer's
satisfaction of the H-1B required wage obligation, means a deduction
from wages in complete compliance with one of the following three sets
of criteria (i.e., paragraph (c)(9)(i), (ii), or (iii))--
(i) Deduction which is required by law (e.g., income tax; FICA); or
(ii) Deduction which is authorized by a collective bargaining
agreement, or is reasonable and customary in the occupation and/or area
of employment
[[Page 434]]
(e.g., union dues; contribution to premium for health insurance policy
covering all employees; savings or retirement fund contribution for
plan(s) in compliance with the Employee Retirement Income Security Act,
29 U.S.C. 1001, et seq.), except that the deduction may not recoup a
business expense(s) of the employer (including attorney fees and other
costs connected to the performance of H-1B program functions which are
required to be performed by the employer, e.g., preparation and filing
of LCA and H-1B petition); the deduction must have been revealed to the
worker prior to the commencement of employment and, if the deduction was
a condition of employment, had been clearly identified as such; and the
deduction must be made against wages of U.S. workers as well as H-1B
nonimmigrants (where there are U.S. workers); or
(iii) Deduction which meets the following requirements:
(A) Is made in accordance with a voluntary, written authorization by
the employee (Note to paragraph (c)(9)(iii)(A): an employee's mere
acceptance of a job which carries a deduction as a condition of
employment does not constitute voluntary authorization, even if such
condition were stated in writing);
(B) Is for a matter principally for the benefit of the employee
(Note to paragraph (c)(9)(iii)(B): housing and food allowances would be
considered to meet this ``benefit of employee'' standard, unless the
employee is in travel status, or unless the circumstances indicate that
the arrangements for the employee's housing or food are principally for
the convenience or benefit of the employer (e.g., employee living at
worksite in ``on call'' status));
(C) Is not a recoupment of the employer's business expense (e.g.,
tools and equipment; transportation costs where such transportation is
an incident of, and necessary to, the employment; living expenses when
the employee is traveling on the employer's business; attorney fees and
other costs connected to the performance of H-1B program functions which
are required to be performed by the employer (e.g., preparation and
filing of LCA and H-1B petition)). (For purposes of this section,
initial transportation from, and end-of-employment travel, to the
worker's home country shall not be considered a business expense.);
(D) Is an amount that does not exceed the fair market value or the
actual cost (whichever is lower) of the matter covered (Note to
paragraph (c)(9)(iii)(D): The employer must document the cost and
value); and
(E) Is an amount that does not exceed the limits set for garnishment
of wages in the Consumer Credit Protection Act, 15 U.S.C. 1673, and the
regulations of the Secretary pursuant to that Act, 29 CFR part 870,
under which garnishment(s) may not exceed 25 percent of an employee's
disposable earnings for a workweek.
(10) A deduction from or reduction in the payment of the required
wage is not authorized (and is therefore prohibited) for the following
purposes (i.e., paragraphs (c)(10) (i) and (ii)):
(i) A penalty paid by the H-1B nonimmigrant for ceasing employment
with the employer prior to a date agreed to by the nonimmigrant and the
employer.
(A) The employer is not permitted to require (directly or
indirectly) that the nonimmigrant pay a penalty for ceasing employment
with the employer prior to an agreed date. Therefore, the employer shall
not make any deduction from or reduction in the payment of the required
wage to collect such a penalty.
(B) The employer is permitted to receive bona fide liquidated
damages from the H-1B nonimmigrant who ceases employment with the
employer prior to an agreed date. However, the requirements of paragraph
(c)(9)(iii) of this section must be fully satisfied, if such damages are
to be received by the employer via deduction from or reduction in the
payment of the required wage.
(C) The distinction between liquidated damages (which are
permissible) and a penalty (which is prohibited) is to be made on the
basis of the applicable State law. In general, the laws of the various
States recognize that liquidated damages are amounts which are fixed or
stipulated by the
[[Page 435]]
parties at the inception of the contract, and which are reasonable
approximations or estimates of the anticipated or actual damage caused
to one party by the other party's breach of the contract. On the other
hand, the laws of the various States, in general, consider that
penalties are amounts which (although fixed or stipulated in the
contract by the parties) are not reasonable approximations or estimates
of such damage. The laws of the various States, in general, require that
the relation or circumstances of the parties, and the purpose(s) of the
agreement, are to be taken into account, so that, for example, an
agreement to a payment would be considered to be a prohibited penalty
where it is the result of fraud or where it cloaks oppression.
Furthermore, as a general matter, the sum stipulated must take into
account whether the contract breach is total or partial (i.e., the
percentage of the employment contract completed). (See, e.g., Vanderbilt
University v. DiNardo, 174 F.3d 751 (6th Cir. 1999) (applying Tennessee
law); Overholt Crop Insurance Service Co. v. Travis, 941 F.2d 1361 (8th
Cir. 1991) (applying Minnesota and South Dakota law); BDO Seidman v.
Hirshberg, 712 N.E.2d 1220 (N.Y. 1999); Guiliano v. Cleo, Inc., 995
S.W.2d 88 (Tenn. 1999); Wojtowicz v. Greeley Anesthesia Services, P.C.,
961 P.2d 520 (Colo.Ct.App. 1998); see generally, Restatement (Second)
Contracts Sec. 356 (comment b); 22 Am.Jur.2d Damages Sec. Sec. 683,
686, 690, 693, 703). In an enforcement proceeding under subpart I of
this part, the Administrator shall determine, applying relevant State
law (including consideration where appropriate to actions by the
employer, if any, contributing to the early cessation, such as the
employer's constructive discharge of the nonimmigrant or non-compliance
with its obligations under the INA and its regulations) whether the
payment in question constitutes liquidated damages or a penalty. (Note
to paragraph (c)(10)(i)(C): The $500/$1,000 filing fee, if any, under
section 214(c) of the INA can never be included in any liquidated
damages received by the employer. See paragraph (c)(10)(ii), which
follows.)
(ii) A rebate of the $500/$1,000 filing fee paid by the employer, if
any, under section 214(c) of the INA. The employer may not receive, and
the H-1B nonimmigrant may not pay, any part of the $500 additional
filing fee (for a petition filed prior to December 18, 2000) or $1,000
additional filing fee (for a petition filed on or subsequent to December
18, 2000), whether directly or indirectly, voluntarily or involuntarily.
Thus, no deduction from or reduction in wages for purposes of a rebate
of any part of this fee is permitted. Further, if liquidated damages are
received by the employer from the H-1B nonimmigrant upon the
nonimmigrant's ceasing employment with the employer prior to a date
agreed to by the nonimmigrant and the employer, such liquidated damages
shall not include any part of the $500/$1,000 filing fee (see paragraph
(c)(10)(i) of this section). If the filing fee is paid by a third party
and the H-1B nonimmigrant reimburses all or part of the fee to such
third party, the employer shall be considered to be in violation of this
prohibition since the employer would in such circumstances have been
spared the expense of the fee which the H-1B nonimmigrant paid.
(11) Any unauthorized deduction taken from wages is considered by
the Department to be non-payment of that amount of wages, and in the
event of an investigation, will result in back wage assessment (plus
civil money penalties and/or disqualification from H-1B and other
immigration programs, if willful).
(12) Where the employer depresses the employee's wages below the
required wage by imposing on the employee any of the employer's business
expenses(s), the Department will consider the amount to be an
unauthorized deduction from wages even if the matter is not shown in the
employer's payroll records as a deduction.
(13) Where the employer makes deduction(s) for repayment of loan(s)
or wage advance(s) made to the employee, the Department, in the event of
an investigation, will require the employer to establish the legitimacy
and purpose(s) of the loan(s) or wage advance(s), with reference to the
standards set out in paragraph (c)(9)(iii) of this section.
[[Page 436]]
(d) Enforcement actions. (1) In the event that a complaint is filed
pursuant to subpart I of this part, alleging a failure to meet the
``prevailing wage'' condition or a material misrepresentation by the
employer regarding the payment of the required wage, or pursuant to such
other basis for investigation as the Administrator may find, the
Administrator shall determine whether the employer has the documentation
required in paragraph (b)(3)of this section, and whether the
documentation supports the employer's wage attestation. Where the
documentation is either nonexistent or is insufficient to determine the
prevailing wage (e.g., does not meet the criteria specified in this
section, in which case the Administrator may find a violation of
paragraph (b)(1), (2), or (3), of this section); or where, based on
significant evidence regarding wages paid for the occupation in the area
of intended employment, the Administrator has reason to believe that the
prevailing wage finding obtained from an independent authoritative
source or another legitimate source varies substantially from the wage
prevailing for the occupation in the area of intended employment; or
where the employer has been unable to demonstrate that the prevailing
wage determined by another legitimate source is in accordance with the
regulatory criteria, the Administrator may contact ETA, which shall
provide the Administrator with a prevailing wage determination, which
the Administrator shall use as the basis for determining violations and
for computing back wages, if such wages are found to be owed. The 30-day
investigatory period shall be suspended while ETA makes the prevailing
wage determination and, in the event that the employer timely challenges
the determination (see Sec. 655.731(d)(2)), shall be suspended until
the challenge process is completed and the Administrator's investigation
can be resumed.
(2) In the event the Administrator obtains a prevailing wage from
ETA pursuant to paragraph (d)(1) of this section, and the employer
desires review, including judicial review, the employer shall challenge
the ETA prevailing wage only by filing a request for review under Sec.
656.41 of this chapter within 30 days of the employer's receipt of the
PWD from the Administrator. If the request is timely filed, the decision
of OFLC is suspended until the Center Director issues a determination on
the employer's appeal. If the employer desires review, including
judicial review, of the decision of the NPC Center Director, the
employer shall make a request for review of the determination by the
Board of Alien Labor Certification Appeals (BALCA) under Sec. 656.41(e)
of this chapter within 30 days of the receipt of the decision of the
Center Director. If a request for review is timely filed with the BALCA,
the determination by the Center Director is suspended until the BALCA
issues a determination on the employer's appeal. In any challenge to the
wage determination, neither ETA nor the NPC shall divulge any employer
wage data collected under the promise of confidentiality.
(i) Where an employer timely challenges an OFLC PWD obtained by the
Administrator, the 30-day investigative period shall be suspended until
the employer obtains a final ruling. Upon such a final ruling, the
investigation and any subsequent enforcement proceeding shall continue,
with the PWD as determined by the BALCA serving as the conclusive
determination for all purposes.
(ii) [Reserved]
(3) For purposes of this paragraph (d), OFLC may consult with the
NPC to ascertain the prevailing wage applicable under the circumstances
of the particular complaint.
[65 FR 80214, Dec. 20, 2000, as amended at 66 FR 63302, Dec. 5, 2001; 69
FR 68228, Nov. 23, 2004; 69 FR 77384, Dec. 27, 2004; 71 FR 35521, June
21, 2006; 73 FR 19949, Apr. 11, 2008; 73 FR 78067, Dec. 19, 2008; 74 FR
45561, Sept. 3, 2009]
Sec. 655.732 What is the second LCA requirement, regarding working
conditions?
An employer seeking to employ H-1B nonimmigrants in specialty
occupations or as fashion models of distinguished merit and ability
shall state on Form ETA 9035 or 9035E that the employment of H-1B
nonimmigrants will not adversely affect the working conditions of
workers similarly employed in the area of intended employment. For
[[Page 437]]
the purposes of this section, ``H-1B'' includes ``E-3 and H-1B1'' as
well.
(a) Establishing the working conditions requirement. The second LCA
requirement shall be satisfied when the employer affords working
conditions to its H-1B nonimmigrant employees on the same basis and in
accordance with the same criteria as it affords to its U.S. worker
employees who are similarly employed, and without adverse effect upon
the working conditions of such U.S. worker employees. Working conditions
include matters such as hours, shifts, vacation periods, and benefits
such as seniority-based preferences for training programs and work
schedules. The employer's obligation regarding working conditions shall
extend for the longer of two periods: the validity period of the
certified LCA, or the period during which the H-1B nonimmigrant(s)
is(are) employed by the employer.
(b) Documentation of the working condition statement. In the event
of an enforcement action pursuant to subpart I of this part, the
employer shall produce documentation to show that it has afforded its H-
1B nonimmigrant employees working conditions on the same basis and in
accordance with the same criteria as it affords its U.S. worker
employees who are similarly employed.
[65 FR 80221, Dec. 20, 2000, as amended at 66 FR 63302, Dec. 5, 2001; 73
FR 19949, Apr. 11, 2008]
Sec. 655.733 What is the third LCA requirement, regarding strikes and
lockouts?
An employer seeking to employ H-1B nonimmigrants shall state on Form
ETA 9035 or 9035E that there is not at that time a strike or lockout in
the course of a labor dispute in the occupational classification at the
place of employment. A strike or lockout which occurs after the labor
condition application is filed by the employer with DOL is covered by
DHS regulations at 8 CFR 214.2(h)(17). For the purposes of this section,
``H-1B'' includes ``E-3 and H-1B1'' as well.
(a) Establishing the no strike or lockout requirement. The third
labor condition application requirement shall be satisfied when the
employer signs the labor condition application attesting that, as of the
date the application is filed, the employer is not involved in a strike,
lockout, or work stoppage in the course of a labor dispute in the
occupational classification in the area of intended employment. Labor
disputes for the purpose of this section relate only to those disputes
involving employees of the employer working at the place of employment
in the occupational classification named in the labor condition
application. See also DHS regulations at 8 CFR 214.2(h)(17) for effects
of strikes or lockouts in general on the H-1B nonimmigrant's employment.
(1) Strike or lockout subsequent to certification of labor condition
application. In order to remain in compliance with the no strike or
lockout labor condition statement, if a strike or lockout of workers in
the same occupational classification as the H-1B nonimmigrant occurs at
the place of employment during the validity of the labor condition
application, the employer, within three days of the occurrence of the
strike or lockout, shall submit to ETA, by U.S. mail, facsimile (FAX),
or private carrier, written notice of the strike or lockout. Further,
the employer shall not place, assign, lease, or otherwise contract out
an H-1B nonimmigrant, during the entire period of the labor condition
application's validity, to any place of employment where there is a
strike or lockout in the course of a labor dispute in the same
occupational classification as the H-1B nonimmigrant. Finally, the
employer shall not use the labor condition application in support of any
petition filings for H-1B nonimmigrants to work in such occupational
classification at such place of employment until ETA determines that the
strike or lockout has ended.
(2) ETA notice to DHS. Upon receiving from an employer a notice
described in paragraph (a)(1) of this section, ETA shall examine the
documentation, and may consult with the union at the employer's place of
business or other appropriate entities. If ETA determines that the
strike or lockout is covered under DHS's ``Effect of strike'' regulation
for ``H'' visa holders, ETA shall certify to DHS, in the manner set
forth in that regulation, that a strike or other labor dispute involving
a work
[[Page 438]]
stoppage of workers in the same occupational classification as the H-1B
nonimmigrant is in progress at the place of employment. See 8 CFR
214.2(h)(17).
(b) Documentation of the third labor condition statement. The
employer need not develop nor maintain documentation to substantiate the
statement referenced in paragraph (a) of this section. In the case of an
investigation, however, the employer has the burden of proof to show
that there was no strike or lockout in the course of a labor dispute for
the occupational classification in which an H-1B nonimmigrant is
employed, either at the time the application was filed or during the
validity period of the LCA.
[59 FR 65659, 65676, Dec. 20, 1994 as amended at 66 FR 63302, Dec. 5,
2001; 73 FR 19949, Apr. 11, 2008]
Sec. 655.734 What is the fourth LCA requirement, regarding notice?
An employer seeking to employ H-1B nonimmigrants shall state on Form
ETA 9035 or 9035E that the employer has provided notice of the filing of
the labor condition application to the bargaining representative of the
employer's employees in the occupational classification in which the H-
1B nonimmigrants will be employed or are intended to be employed in the
area of intended employment, or, if there is no such bargaining
representative, has posted notice of filing in conspicuous locations in
the employer's establishment(s) in the area of intended employment, in
the manner described in this section. For the purposes of this section,
``H-1B'' includes ``E-3 and H-1B1'' as well.
(a) Establishing the notice requirement. The fourth labor condition
application requirement shall be established when the conditions of
paragraphs (a)(1) and (a)(2) of this section are met.
(1)(i) Where there is a collective bargaining representative for the
occupational classification in which the H-1B nonimmigrants will be
employed, on or within 30 days before the date the labor condition
application is filed with ETA, the employer shall provide notice to the
bargaining representative that a labor condition application is being,
or will be, filed with ETA. The notice shall identify the number of H-1B
nonimmigrants the employer is seeking to employ; the occupational
classification in which the H-1B nonimmigrants will be employed; the
wages offered; the period of employment; and the location(s) at which
the H-1B nonimmigrants will be employed. Notice under this paragraph
(a)(1)(i) shall include the following statement: ``Complaints alleging
misrepresentation of material facts in the labor condition application
and/or failure to comply with the terms of the labor condition
application may be filed with any office of the Wage and Hour Division
of the United States Department of Labor.''
(ii) Where there is no collective bargaining representative, the
employer shall, on or within 30 days before the date the LCA is filed
with ETA, provide a notice of the filing of the LCA. The notice shall
indicate that H-1B nonimmigrants are sought; the number of such
nonimmigrants the employer is seeking; the occupational classification;
the wages offered; the period of employment; the location(s) at which
the H-1B nonimmigrants will be employed; and that the LCA is available
for public inspection at the H-1B employer's principal place of business
in the U.S. or at the worksite. The notice shall also include the
statement: ``Complaints alleging misrepresentation of material facts in
the labor condition application and/or failure to comply with the terms
of the labor condition application may be filed with any office of the
Wage and Hour Division of the United States Department of Labor.'' If
the employer is an H-1B-dependent employer or a willful violator, and
the LCA is not being used only for exempt H-1B nonimmigrants, the notice
shall also set forth the nondisplacement and recruitment obligations to
which the employer has attested, and shall include the following
additional statement: ``Complaints alleging failure to offer employment
to an equally or better qualified U.S. applicant or an employer's
misrepresentation regarding such offers of employment may be filed with
the Department of Justice, Civil Rights Division, Office of Special
Counsel for Immigration-Related Unfair Employment Practices, 950
Pennsylvania Avenue, NW.,
[[Page 439]]
Washington, DC 20530, Telephone: 1 (800) 255-8155 (employers), 1 (800)
255-7688 (employees); Web address: http://www.usdoj.gov/crt/osc.'' The
notice shall be provided in one of the two following manners:
(A) Hard copy notice, by posting a notice in at least two
conspicuous locations at each place of employment where any H-1B
nonimmigrant will be employed (whether such place of employment is owned
or operated by the employer or by some other person or entity).
(1) The notice shall be of sufficient size and visibility, and shall
be posted in two or more conspicuous places so that workers in the
occupational classification at the place(s) of employment can easily see
and read the posted notice(s).
(2) Appropriate locations for posting the notices include, but are
not limited to, locations in the immediate proximity of wage and hour
notices required by 29 CFR 516.4 or occupational safety and health
notices required by 29 CFR 1903.2(a).
(3) The notices shall be posted on or within 30 days before the date
the labor condition application is filed and shall remain posted for a
total of 10 days.
(B) Electronic notice, by providing electronic notification to
employees in the occupational classification (including both employees
of the H-1B employer and employees of another person or entity which
owns or operates the place of employment) for which H-1B nonimmigrants
are sought, at each place of employment where any H-1B nonimmigrant will
be employed. Such notification shall be given on or within 30 days
before the date the labor condition application is filed, and shall be
available to the affected employees for a total of 10 days, except that
if employees are provided individual, direct notice (as by e-mail),
notification only need be given once during the required time period.
Notification shall be readily available to the affected employees. An
employer may accomplish this by any means it ordinarily uses to
communicate with its workers about job vacancies or promotion
opportunities, including through its ``home page'' or ``electronic
bulletin board'' to employees who have, as a practical matter, direct
access to these resources; or through e-mail or an actively circulated
electronic message such as the employer's newsletter. Where affected
employees at the place of employment are not on the ``intranet'' which
provides direct access to the home page or other electronic site but do
have computer access readily available, the employer may provide notice
to such workers by direct electronic communication such as e-mail (i.e.,
a single, personal e-mail message to each such employee) or by arranging
to have the notice appear for 10 days on an intranet which includes the
affected employees (e.g., contractor arranges to have notice on
customer's intranet accessible to affected employees). Where employees
lack practical computer access, a hard copy must be posted in accordance
with paragraph (a)(1)(ii)(A) of this section, or the employer may
provide employees individual copies of the notice.
(2) Where the employer places any H-1B nonimmigrant(s) at one or
more worksites not contemplated at the time of filing the application,
but which are within the area of intended employment listed on the LCA,
the employer is required to post electronic or hard-copy notice(s) at
such worksite(s), in the manner described in paragraph (a)(1) of this
section, on or before the date any H-1B nonimmigrant begins work.
(3) The employer shall, no later than the date the H-1B nonimmigrant
reports to work at the place of employment, provide the H-1B
nonimmigrant with a copy of the LCA (Form ETA 9035, or Form ETA 9035E)
certified by ETA and signed by the employer (or by the employer's
authorized agent or representative). Upon request, the employer shall
provide the H-1B nonimmigrant with a copy of the cover pages, Form ETA
9035CP.
(b) Documentation of the fourth labor condition statement. The
employer shall develop and maintain documentation sufficient to meet its
burden of proving the validity of the statement referenced in paragraph
(a) of this section and attested to on Form ETA 9035 or 9035E. Such
documentation shall include a copy of the dated notice and the name and
address of the collective
[[Page 440]]
bargaining representative to whom the notice was provided. Where there
is no collective bargaining representative, the employer shall note and
retain the dates when, and locations where, the notice was posted and
shall retain a copy of the posted notice.
(c) Records retention; records availability. The employer's
documentation shall not be submitted to ETA with the labor condition
application, but shall be retained for the period of time specified in
Sec. 655.760(c) of this part. The documentation shall be made available
for public examination as required in Sec. 655.760(a) of this part, and
shall be made available to DOL upon request.
[65 FR 65659, 65676, Dec. 20, 1994, as amended at 65 FR 80221, Dec. 20,
2000; 66 FR 63302, Dec. 5, 2001; 70 FR 72563, Dec. 5, 2005; 73 FR 19949,
Apr. 11, 2008]
Sec. 655.735 What are the special provisions for short-term placement
of H-1B nonimmigrants at place(s) of employment outside the
area(s) of intended employment listed on the LCA?
This section does not apply to E-3 and H-1B1 nonimmigrants.
(a) Subject to the conditions specified in this section, an employer
may make short-term placements or assignments of H-1B nonimmigrant(s) at
worksite(s) (place(s) of employment) in areas not listed on the
employer's approved LCA(s) without filing new labor condition
application(s) for such area(s).
(b) The following conditions must be fully satisfied by an employer
during all short-term placement(s) or assignment(s) of H-1B
nonimmigrant(s) at worksite(s) (place(s) of employment) in areas not
listed on the employer's approved LCA(s):
(1) The employer has fully satisfied the requirements of Sec. Sec.
655.730 through 655.734 with regard to worksite(s) located within the
area(s) of intended employment listed on the employer's LCA(s).
(2) The employer shall not place, assign, lease, or otherwise
contract out any H-1B nonimmigrant(s) to any worksite where there is a
strike or lockout in the course of a labor dispute in the same
occupational classification(s) as that of the H-1B nonimmigrant(s).
(3) For every day the H-1B nonimmigrant(s) is placed or assigned
outside the area(s) of employment listed on the approved LCA(s) for such
worker(s), the employer shall:
(i) Continue to pay such worker(s) the required wage (based on the
prevailing wage at such worker's(s') permanent worksite, or the
employer's actual wage, whichever is higher);
(ii) Pay such worker(s) the actual cost of lodging (for both
workdays and non-workdays); and
(iii) Pay such worker(s) the actual cost of travel, meals and
incidental or miscellaneous expenses (for both workdays and non-
workdays).
(c) An employer's short-term placement(s) or assignment(s) of H-1B
nonimmigrant(s) at any worksite(s) in an area of employment not listed
on the employer's approved LCA(s) shall not exceed a total of 30
workdays in a one-year period for any H-1B nonimmigrant at any worksite
or combination of worksites in the area, except that such placement or
assignment of an H-1B nonimmigrant may be for longer than 30 workdays
but for no more than a total of 60 workdays in a one-year period where
the employer is able to show the following:
(1) The H-1B nonimmigrant continues to maintain an office or work
station at his/her permanent worksite (e.g., the worker has a dedicated
workstation and telephone line(s) at the permanent worksite);
(2) The H-1B nonimmigrant spends a substantial amount of time at the
permanent worksite in a one-year period; and
(3) The H-1B nonimmigrant's U.S. residence or place of abode is
located in the area of the permanent worksite and not in the area of the
short-term worksite(s) (e.g., the worker's personal mailing address; the
worker's lease for an apartment or other home; the worker's bank
accounts; the worker's automobile driver's license; the residence of the
worker's dependents).
(d) For purposes of this section, the term workday shall mean any
day on which an H-1B nonimmigrant performs any work at any worksite(s)
within the area of short-term placement or assignment. For example,
three workdays
[[Page 441]]
would be counted where a nonimmigrant works three non-consecutive days
at three different worksites (whether or not the employer owns or
controls such worksite(s)), within the same area of employment. Further,
for purposes of this section, the term one-year period shall mean the
calendar year (i.e., January 1 through December 31) or the employer's
fiscal year, whichever the employer chooses.
(e) The employer may not make short-term placement(s) or
assignment(s) of H-1B nonimmigrant(s) under this section at worksite(s)
in any area of employment for which the employer has a certified LCA for
the occupational classification. Further, an H-1B nonimmigrant entering
the U.S. is required to be placed at a worksite in accordance with the
approved petition and supporting LCA; thus, the nonimmigrant's initial
placement or assignment cannot be a short-term placement under this
section. In addition, the employer may not continuously rotate H-1B
nonimmigrants on short-term placement or assignment to an area of
employment in a manner that would defeat the purpose of the short-term
placement option, which is to provide the employer with flexibility in
assignments to afford enough time to obtain an approved LCA for an area
where it intends to have a continuing presence (e.g., an employer may
not rotate H-1B nonimmigrants to an area of employment for 20-day
periods, with the result that nonimmigrants are continuously or
virtually continuously employed in the area of employment, in order to
avoid filing an LCA; such an employer would violate the short-term
placement provisions).
(f) Once any H-1B nonimmigrant's short-term placement or assignment
has reached the workday limit specified in paragraph (c) of this section
in an area of employment, the employer shall take one of the following
actions:
(1) File an LCA and obtain ETA certification, and thereafter place
any H-1B nonimmigrant(s) in that occupational classification at
worksite(s) in that area pursuant to the LCA (i.e., the employer shall
perform all actions required in connection with such LCA, including
determination of the prevailing wage and notice to workers); or
(2) Immediately terminate the placement of any H-1B nonimmigrant(s)
who reaches the workday limit in an area of employment. No worker may
exceed the workday limit within the one-year period specified in
paragraph (d) of this section, unless the employer first files an LCA
for the occupational classification for the area of employment.
Employers are cautioned that if any worker exceeds the workday limit
within the one-year period, then the employer has violated the terms of
its LCA(s) and the regulations in the subpart, and thereafter the short-
term placement option cannot be used by the employer for H-1B
nonimmigrants in that occupational classification in that area of
employment.
(g) An employer is not required to use the short-term placement
option provided by this section, but may choose to make each placement
or assignment of an H-1B nonimmigrant at worksite(s) in a new area of
employment pursuant to a new LCA for such area. Further, an employer
which uses the short-term placement option is not required to continue
to use the option. Such an employer may, at any time during the period
identified in paragraphs (c) and (d) of this section, file an LCA for
the new area of employment (performing all actions required in
connection with such LCA); upon certification of such LCA, the
employer's obligation to comply with this section concerning short-term
placement shall terminate. (However, see Sec. 655.731(c)(9)(iii)(C)
regarding payment of business expenses for employee's travel on
employer's business.)
[65 FR 80222, Dec. 20, 2000, as amended at 73 FR 19949, Apr. 11, 2008]
Sec. 655.736 What are H-1B-dependent employers and willful violators?
Two attestation obligations apply only to two types of employers: H-
1B-dependent employers (as described in paragraphs (a) through (e) of
this section) and employers found to have willfully violated their H-1B
obligations within a certain five-year period (as described in paragraph
(f) of this section). These obligations apply only to certain labor
condition applications filed by such employers (as described in
paragraph (g) of this section), and do not
[[Page 442]]
apply to LCAs filed by such employers solely for the employment of
``exempt'' H-1B nonimmigrants (as described in paragraph (g) of this
section and Sec. 655.737). These obligations require that such
employers not displace U.S. workers from jobs (as described in Sec.
655.738) and that such employers recruit U.S. workers before hiring H-1B
nonimmigrants (as described in Sec. 655.739).
(a) What constitutes an ``H-1B-dependent'' employer? (1) ``H-1B-
dependent employer,'' for purposes of THIS subpart H and subpart I of
this part, means an employer that meets one of the three following
standards, which are based on the ratio between the employer's total
work force employed in the U.S. (including both U.S. workers and H-1B
nonimmigrants, and measured according to full-time equivalent employees)
and the employer's H-1B nonimmigrant employees (a ``head count''
including both full-time and part-time H-1B employees)--
(i)(A) The employer has 25 or fewer full-time equivalent employees
who are employed in the U.S.; and
(B) Employs more than seven H-1B nonimmigrants;
(ii)(A) The employer has at least 26 but not more than 50 full-time
equivalent employees who are employed in the U.S.; and
(B) Employs more than 12 H-1B nonimmigrant; or
(iii)(A) The employer has at least 51 full-time equivalent employees
who are employed in the U.S.; and
(B) Employs H-1B nonimmigrants in a number that is equal to at least
15 percent of the number of such full-time equivalent employees.
(2) ``Full-time equivalent employees'' (FTEs), for purposes of
paragraph (a) of this section are to be determined according to the
following standards:
(i) The determination of FTEs is to include only persons employed by
the employer (as defined in Sec. 655.715), and does not include bona
fide consultants and independent contractors. For purposes of this
section, the Department will accept the employer's designation of
persons as ``employees,'' provided that such persons are consistently
treated as ``employees'' for all purposes including FICA, FLSA, etc.
(ii) The determination of FTEs is to be based on the following
records:
(A) To determine the number of employees, the employer's quarterly
tax statement (or similar document) is to be used (assuming there is no
issue as to whether all employees are listed on the tax statement); and
(B) To determine the number of hours of work by part-time employees,
for purposes of aggregating such employees to FTEs, the last payroll (or
the payrolls over the previous quarter, if the last payroll is not
representative) is to be used, or where hours of work records are not
maintained, other available information is to be used to make a
reasonable approximation of hours of work (such as a standard work
schedule). (But see paragraph (a)(2)(iii)(B)(1) of this section
regarding the determination of FTEs for part-time employees without a
computation of the hours worked by such employees.)
(iii) The FTEs employed by the employer means the total of the two
numbers yielded by paragraphs (a)(2)(iii)(A) and (B), which follow:
(A) The number of full-time employees. A full-time employee is one
who works 40 or more hours per week, unless the employer can show that
less than 40 hours per week is full-time employment in its regular
course of business (however, in no event would less than 35 hours per
week be considered to be full-time employment). Each full-time employee
equals one FTE (e.g., 50 full-time employees would yield 50 FTEs). (Note
to paragraph (a)(2)(iii)(A): An employee who commonly works more than
the number of hours constituting full-time employment cannot be counted
as more than one FTE.); plus
(B) The part-time employees aggregated to a number of full-time
equivalents, if the employer has part-time employees. For purposes of
this determination, a part-time employee is one who regularly works
fewer than the number of hours per week which constitutes full-time
employment (e.g., employee regularly works 20 hours, where full-time
employment is 35 hours per week). The aggregation of part-
[[Page 443]]
time employees to FTEs may be performed by either of the following
methods (i.e., paragraphs (a)(2)(iii)(B)(1) or (2)):
(1) Each employee working fewer than full-time hours counted as one-
half of an FTE, with the total rounded to the next higher whole number
(e.g., three employees working fewer than 35 hours per week, where full-
time employment is 35 hours, would yield two FTEs (i.e., 1.5 rounded to
2)); or
(2) The total number of hours worked by all part-time employees in
the representative pay period, divided by the number of hours per week
that constitute full-time employment, with the quotient rounded to the
nearest whole number (e.g., 72 total hours of work by three part-time
employees, divided by 40 (hours per week constituting full-time
employment), would yield two FTEs (i.e., 1.8 rounded to 2)).
(iv) Examples of determinations of FTEs: Employer A has 100
employees, 70 of whom are full-time (with full-time employment shown to
be 44 hours of work per week) and 30 of whom are part-time (with a total
of 1004 hours of work by all 30 part-time employees during the
representative pay period). Utilizing the method in paragraph
(a)(2)(iii)(B)(1) of this section, this employer would have 85 FTEs: 70
FTEs for full-time employees, plus 15 FTEs for part-time employees
(i.e., each of the 30 part-time employees counted as one-half of a full-
time employee, as described in paragraph (a)(2)(iii)(B)(1) of this
section). (This employer would have 23 FTEs for part-time employees, if
these FTEs were computed as described in paragraph (a)(2)(iii)(B)(2) of
this section: 1004 total hours of work by part-time employees, divided
by 44 (full-time employment), yielding 22.8, rounded to 23)). Employer B
has 100 employees, 80 of whom are full-time (with full-time employment
shown to be 40 hours of work per week) and 20 of whom are part-time
(with a total of 630 hours of work by all 30 part-time employees during
the representative pay period). This employer would have 90 FTEs: 80
FTEs for full-time employees, plus 10 FTEs for part-time employees
(i.e., each of the 20 part-time employees counted as one-half of a full-
time employee, as described in paragraph (a)(2)(iii)(B)(1) of this
section) (This employer would have 16 FTEs for part-time employees, if
these FTEs were computed as described in paragraph (a)(2)(iii)(B)(2) of
this section: 630 total hours of work by part-time employees, divided by
40 (full-time employment), yielding 15.7, rounded to 16)).
(b) What constitutes an ``employer'' for purposes of determining H-
1B-dependency status? Any group treated as a single employer under the
Internal Revenue Code (IRC) at 26 U.S.C. 414(b), (c), (m) or (o) shall
be treated as a single employer for purposes of the determination of H-
1B-dependency. Therefore, if an employer satisfies the requirements of
the IRC and relevant regulations with respect to the following groups of
employees, those employees will be treated as employees of a single
employer for purposes of determining whether that employer is an H-1B-
dependent employer.
(1) Pursuant to section 414(b) of the IRC and related regulations,
all employees ``within a controlled group of corporations'' (within the
meaning of section 1563(a) of the IRC, determined without regard to
section 1563(a)(4) and (e)(3)(C)), will be treated as employees of a
single employer. A controlled group of corporations is a parent-
subsidiary-controlled group, a brother-sister-controlled group, or a
combined group. 26 U.S.C. 1563(a), 26 CFR 1.414(b)-1(a).
(i) A parent-subsidiary-controlled group is one or more chains of
corporations connected through stock ownership with a common parent
corporation where at least 80 percent of the stock (by voting rights or
value) of each subsidiary corporation is owned by one or more of the
other corporations (either another subsidiary or the parent
corporation), and the common parent corporation owns at least 80 percent
of the stock of at least one subsidiary.
(ii) A brother-sister-controlled group is a group of corporations in
which five or fewer persons (individuals, estates, or trusts) own 80
percent or more of the stock of the corporations and certain other
ownership criteria are satisfied.
(iii) A combined group is a group of three or more corporations,
each of which is a member of a parent-subsidiary controlled group or a
brother-sister-controlled group and one of
[[Page 444]]
which is a common parent corporation of a parent-subsidiary-controlled
group and is also included in a brother-sister-controlled group.
(2) Pursuant to section 414(c) of the IRC and related regulations,
all employees of trades or businesses (whether or not incorporated) that
are under common control are treated as employees of a single employer.
26 U.S.C. 414(c), 26 CFR 1.414(c)-2.
(i) Trades or businesses are under common control if they are
included in:
(A) A parent-subsidiary group of trades or businesses;
(B) A brother-sister group of trades or businesses; or
(C) A combined group of trades or businesses.
(ii) Trades or businesses include sole proprietorships,
partnerships, estates, trusts or corporations.
(iii) The standards for determining whether trades or businesses are
under common control are similar to standards that apply to controlled
groups of corporations. However, pursuant to 26 CFR 1.414(c)-2(b)(2),
ownership of at least an 80 percent interest in the profits or capital
interest of a partnership or the actuarial value of a trust or estate
constitutes a controlling interest in a trade or business.
(3) Pursuant to section 414(m) of the IRC and related regulations,
all employees of the members of an affiliated service group are treated
as employees of a single employer. 26 U.S.C. 414(m).
(i) An affiliated service group is, generally, a group consisting of
a service organization (the ``first organization''), such as a health
care organization, a law firm or an accounting firm, and one or more of
the following:
(A) A second service organization that is a shareholder or partner
in the first organization and that regularly performs services for the
first organization (or is regularly associated with the first
organization in performing services for third persons); or
(B) Any other organization if :
(1) A significant portion of the second organization's business is
the performance of services for the first organization (or an
organization described in paragraph (b)(3)(i) of this section or for
both) of a type historically performed in such service field by
employees, and
(2) Ten percent or more of the interest in the second organization
is held by persons who are highly compensated employees of the first
organization (or an organization described in paragraph (b)(3)(i) of
this section).
(ii) [Reserved]
(4) Section 414(o) of the IRC provides that the Department of the
Treasury may issue regulations addressing other business arrangements,
including employee leasing, in which a group of employees are treated as
employed by the same employer. However, the Department of the Treasury
has not issued any regulations under this provision. Therefore, that
section of the IRC will not be taken into account in determining what
groups of employees are considered employees of a single employer for
purposes of H-1B dependency determinations, unless regulations are
issued by the Treasury Department during the period the dependency
provisions of the ACWIA are effective.
(5) The definitions of ``single employer'' set forth in paragraphs
(b)(1) through (b)(3) of this section are established by the Internal
Revenue Service (IRS) in regulations located at 26 CFR 1.414(b)-1(a),
(c)-2 and (m)-5. Guidance on these definitions should be sought from
those regulations or from the IRS.
(c) Which employers are required to make determinations of H-1B-
dependency status? Every employer that intends to file an LCA regarding
H-1B nonimmigrants or to file H-1B petition(s) or request(s) for
extension(s) of H-1B status from January 19, 2001 through September 30,
2003, and after March 7, 2005, is required to determine whether it is an
H-1B-dependent employer or a willful violator which, except as provided
in Sec. 655.737, will be subject to the additional obligations for H-
1B-dependent employers (see paragraph (g) of this section). No H-1B-
dependent employer or willful violator may use an LCA filed before
January 19, 2001, and during the period of October 1, 2003 through March
7, 2005, to support a new H-1B petition or request for an extension of
status. Furthermore, on all H-1B LCAs filed from January 19, 2001
through September 30, 2003, and on or
[[Page 445]]
after March 8, 2005, an employer will be required to attest whether it
is an H-1B-dependent employer or willful violator. An employer that
attests it is non-H-1B-dependent but does not meet the ``snap shot''
test set forth in paragraph (c)(2) of this section shall make and
document a full calculation of its status. However, as explained in
paragraphs (c)(1) and (2) of this section, which follow, most employers
would not be required to make any calculations or to create any
documentation as to the determination of their H-1B status.
(1) Employers with readily apparent status concerning H-1B-
dependency need not calculate that status. For most employers,
regardless of their size, H-1B-dependency status (i.e., H-1B-dependent
or non-H-1B-dependent) is readily apparent and would require no
calculations, in that the ratio of H-1B employees to the total workforce
is obvious and can easily be compared to the definition of ``H-1B-
dependency'' (see definition set out in paragraph (a)(1) of this
section).
For example: Employer A with 20 employees, only one of whom is an H-
1B non-immigrant, would obviously not be H-1B-dependent and would not
need to make calculations to confirm that status. Employer B with 45
employees, 30 of whom are H-1B nonimmigrants, would obviously be H-1B-
dependent and would not need to make calculations. Employer C with 500
employees, only 30 of whom are H-1B nonimmigrants, would obviously not
be H-1B-dependent and would not need to make calculations. Employer D
with 1,000 employees, 850 of whom are H-1B nonimmigrants, would
obviously be H-1B-dependent and would not have to make calculations.
(2) Employers with borderline H-1B-dependency status may use a
``snap-shot'' test to determine whether calculation of that status is
necessary. Where an employer's H-1B-dependency status (i.e., H-1B-
dependent or non-H-1B-dependent) is not readily apparent, the employer
may use one of the following tests to determine whether a full
calculation of the status is needed:
(i) Small employer (50 or fewer employees). If the employer has 50
or fewer employees (both full-time and part-time, including H-1B
nonimmigrants and U.S. workers), then the employer may compare the
number of its H-1B nonimmigrant employees (both full-time and part-time)
to the numbers specified in the definition set out in paragraph (a)(1)
of this section, and shall fully calculate its H-1B-dependency status
(i.e., calculate FTEs) where the number of its H-1B nonimmigrant
employees is above the number specified in the definition. In other
words, if the employer has 25 or fewer employees, and more than seven of
them are H-1B nonimmigrants, then the employer shall fully calculate its
status; if the employer has at least 26 but no more than 50 employees,
and more than 12 of them are H-1B nonimmigrants, then the employer shall
fully calculate its status.
(ii) Large employer (51 or more employees). If the number of H-1B
nonimmigrant employees (both full-time and part-time), divided by the
number of full-time employees (including H-1B nonimmigrants and U.S.
workers), is 0.15 or more, then an employer which believes itself to be
non-H-1B-dependent shall fully calculate its H-1B-dependency status
(including the calculation of FTEs). In other words, if the number of
full-time employees (including H-1B nonimmigrants and U.S. workers)
multiplied by 0.15 yields a number that is equal to or less than the
number of H-1B nonimmigrant employees (both full-time and part-time),
then the employer shall attest that it is H-1B-dependent or shall fully
calculate its H-1B dependency status (including the calculation of
FTEs).
(d) What documentation is the employer required to make or maintain,
concerning its determination of H-1B-dependency status? All employers
are required to retain copies of H-1B petitions and requests for
extensions of H-1B status filed with the DHS, as well as the payroll
records described in Sec. 655.731(b)(1). The nature of any additional
documentation would depend upon the general characteristics of the
employer's workforce, as described in paragraphs (d)(1) through (4),
which follow.
(1) Employer with readily apparent status concerning H-1B-
dependency. If an employer's H-1B-dependency status
[[Page 446]]
(i.e., H-1B-dependent or non-H-1B-dependent) is readily apparent (as
described in paragraph (c)(1) of this section), then that status must be
reflected on the employer's LCA but the employer is not required to make
or maintain any particular documentation. The public access file
maintained in accordance with Sec. 655.760 would show the H-1B-
dependency status, by means of copy(ies) of the LCA(s). In the event of
an enforcement action pursuant to subpart I of this part, the employer's
readily apparent status could be verified through records to be made
available to the Administrator (e.g., copies of H-1B petitions; payroll
records described in Sec. 655.731(b)(1)).
(2) Employer with borderline H-1B-dependency status. An employer
which uses a ``snap-shot'' test to determine whether it should undertake
a calculation of its H-1B-dependency status (as described in paragraph
(c)(2) of this section) is not required to make or maintain any
documentation of that ``snap-shot'' test. The employer's status must be
reflected on the LCA(s), which would be available in the public access
file. In the event of an enforcement action pursuant to subpart I of
this part, the employer's records to be made available to the
Administrator would enable the employer to show and the Administrator to
verify the ``snap-shot'' test (e.g., copies of H-1B petitions; payroll
records described in Sec. 655.731(b)(1)) .
(3) Employer with H-1B-dependent status. An employer which attests
that it is H-1B-dependent--whether that status is readily apparent or is
determined through calculations--is not required to make or maintain any
documentation of the calculation. The employer's status must be
reflected on the LCA(s), which would be available in the public access
file. In the event of an enforcement action pursuant to subpart I of
this part, the employer's designation of H-1B-dependent status on the
LCA(s) would be conclusive and sufficient documentation of that status
(except where the employer's status had altered to non-H-1B-dependent
and had been appropriately documented, as described in paragraph
(d)(5)(ii) of this section).
(4) Employer with non-H-1B-dependent status who is required to
perform full calculation. An employer which attests that it is non-H-1B-
dependent and does not meet the ``snap shot'' test set forth in
paragraph (c)(2) of this section shall retain in its records a dated
copy of its calculation that it is not H-1B-dependent. In the event of
an enforcement action pursuant to subpart I of this part, the employer's
records to be made available to the Administrator would enable the
employer to show and the Administrator to verify the employer's
determination (e.g., copies of H-1B petitions; payroll records described
in Sec. 655.731(b)(1)).
(5) Employer which changes its H-1B-dependency status due to changes
in workforce. An employer may experience a change in its H-1B-dependency
status, due to changes in the ratio of H-1B nonimmigrant to U.S. workers
in its workforce. Thus it is important that employers who wish to file a
new LCA or a new H-1B petition or request for extension of status remain
cognizant of their dependency status and do a recheck of such status if
the make-up of their workforce changes sufficiently that their
dependency status might possibly change. In the event of such a change
of status, the following standards will apply:
(i) Change from non-H-1B-dependent to H-1B-dependent. An employer
which experiences this change in its workforce is not required to make
or maintain any record of its determination of the change of its H-1B-
dependency status. The employer is not required to file new LCA(s)
(which would accurately state its H-1B-dependent status), unless it
seeks to hire new H-1B nonimmigrants or extend the status of existing H-
1B nonimmigrants (see paragraph (g) of this section).
(ii) Change from H-1B-dependent to non-H-1B-dependent. An employer
which experiences this change in its workforce is required to perform a
full calculation of its status (as described in paragraph (c) of this
section) and to retain a copy of such calculation in its records. If the
employer seeks to hire new H-1B nonimmigrants or extend the status of
existing H-1B nonimmigrants (see paragraph (g) of this section), the
[[Page 447]]
employer shall either file new LCAs reflecting its non-H-1B-dependent
status or use its existing certified LCAs reflecting an H-1B-dependency
status, in which case it shall continue to be bound by the dependent-
employer attestations on such LCAs. In the event of an enforcement
action pursuant to subpart I of this part, the employer's records to be
made available to the Administrator would enable the employer to show
and the Administrator to verify the employer's determination (e.g.,
copies of H-1B petitions; payroll records described in Sec.
655.731(b)(1)).
(6) Change in corporate structure or identity of employer. If an
employer which experiences a change in its corporate structure as the
result of an acquisition, merger, ``spin-off,'' or other such action
wishes to file a new LCA or a new H-1B petition or request for extension
of status, the new employing entity shall redetermine its H-1B-
dependency status in accordance with paragraphs (a) and (c) of this
section (see paragraph (g) of this section). (See Sec. 655.730(e),
regarding change in corporate structure or identity of employer.) In the
event of an enforcement action pursuant to subpart I of this part, the
employer's calculations where required under paragraph (c) of this
section and its records to be made available to the Administrator would
enable the employer to show and the Administrator to verify the
employer's determination (e.g., copies of H-1B petitions; payroll
records described in Sec. 655.731(b)(1)).
(7) ``Single employer'' under IRC test. If an employer utilizes the
IRC single-employer definition and concludes that it is non-H-1B-
dependent, the employer shall perform the ``snap-shot'' test set forth
in paragraph (c)(2) of this section, and if it fails to meet that test,
shall attest that it is H-1B-dependent or shall perform the full
calculation of dependency status in accordance with paragraph (a) of
this section. The employer shall place a list of the entities included
as a ``single employer'' in the public access file maintained in
accordance with Sec. 766.760. In addition, the employer shall retain in
its records the ``snap-shot'' or full calculation of its status, as
appropriate (showing the number of employees of each entity who are
included in the numerator and denominator of the equation, whether the
employer utilizes the ``snap shot'' test or a complete calculation as
described in paragraph (c) of this section). In the event of an
enforcement action pursuant to subpart I of this part, the employer's
records to be made available to the Administrator would enable the
employer to show and the Administrator to verify the employer's
determination (e.g., copies of H-1B petitions; payroll records described
in Sec. 655.731(b)(1)).
(e) How is an employer's H-1B-dependency status to be shown on the
LCA? The employer is required to designate its status by marking the
appropriate box on the Form ETA-9035 or 9035E (i.e., either H-1B-
dependent or non-H-1B-dependent). An employer which marks the
designation of ``H-1B-dependent'' may also mark the designation of its
intention to seek only ``exempt'' H-1B nonimmigrants on the LCA (see
paragraph (g) of this section, and Sec. 655.737). In the event that an
employer has filed an LCA designating its H-1B-dependency status (either
H-1B-dependent or non-H-1B-dependent) and thereafter experiences a
change of status, the employer cannot use that LCA to support H-1B
petitions for new nonimmigrants or requests for extension of H-1B status
for existing nonimmigrants. Similarly, an employer that is or becomes H-
1B-dependent cannot continue to use an LCA filed before January 19, 2001
to support new H-1B petitions or requests for extension of status. In
such circumstances, the employer shall file a new LCA accurately
designating its status and shall use that new LCA to support new
petitions or requests for extensions of status.
(f) What constitutes a ``willful violator'' employer and what are
its special obligations?
(1) ``Willful violator'' or ``willful violator employer,'' for
purposes of this subpart H and subpart I of this part means an employer
that meets all of the following standards (i.e., paragraphs (f)(1)(i)
through (iii))--
(i) A finding of violation by the employer (as described in
paragraph (f)(1) (ii)) is entered in either of the following two types
of enforcement proceeding:
[[Page 448]]
(A) A Department of Labor proceeding under section 212(n)(2) of the
Act (8 U.S.C. 1182(n)(2)(C) and subpart I of this part; or
(B) A Department of Justice proceeding under section 212(n)(5) of
the Act (8 U.S.C. 1182(n)(5).
(ii) The agency finds that the employer has committed either a
willful failure or a misrepresentation of a material fact during the
five-year period preceding the filing of the LCA; and
(iii) The agency's finding is entered on or after October 21, 1998.
(2) For purposes of this paragraph, ``willful failure'' means a
violation which is a ``willful failure'' as defined in Sec. 655.805(c).
(g) What LCAs are subject to the additional attestation obligations?
(1) An employer that is ``H-1B-dependent'' (under the standards
described in paragraphs (a) through (e) of this section) or is a
``willful violator'' (under the standards described in paragraph (f) of
this section) is subject to the attestation obligations regarding
displacement of U.S. workers and recruitment of U.S. workers (under the
standards described in Sec. Sec. 655.738 and 655.739, respectively) for
all LCAs that are filed during the time period specified in paragraph
(g)(2) of this section, to be used to support any petitions for new H-1B
nonimmigrants or any requests for extensions of status for existing H-1B
nonimmigrants. An LCA which does not accurately indicate the employer's
H-1B-dependency status or willful violator status shall not be used to
support H-1B petitions or requests for extensions. Further, an employer
which falsely attests to non-H-1B-dependency status, or which
experiences a change of status to H-1B-dependency but continues to use
the LCA to support new H-1B petitions or requests for extension of
status shall--despite the LCA designation of non-H-1B-dependency--be
held to its obligations to comply with the attestation requirements
concerning nondisplacement of U.S. workers and recruitment of U.S.
workers (as described in Sec. Sec. 655.738 and 655.739, respectively),
as explicitly acknowledged and agreed on the LCA.
(2) During the period between January 19, 2001 through September 30,
2003, and on or after March 8, 2005, any employer that is ``H-1B-
dependent'' (under the standards described in paragraphs (a) through (e)
of this section) or is a ``willful violator'' (under the standards
described in paragraph (f) of this section) shall file a new LCA
accurately indicating that status in order to be able to file
petition(s) for new H-1B nonimmigrant(s) or request(s) for extension(s)
of status for existing H-1B nonimmigrant(s). An LCA filed during a
period when the special attestation obligations for H-1B dependent
employers and willful violators were not in effect (that is before
January 19, 2001, and from October 1, 2003 through March 7, 2005) may
not be used by an H-1B dependent employer or willful violator to support
petition(s) for new H-1B nonimmigrant(s) or request(s) for extension(s)
of status for existing H-1B nonimmigrants.
(3) An employer that files an LCA indicating ``H-1B-dependent'' and/
or ``willful violator'' status may also indicate on the LCA that all the
H-1B nonimmigrants to be employed pursuant to that LCA will be ``exempt
H-1B nonimmigrants'' as described in Sec. 655.737. Such an LCA is not
subject to the additional LCA attestation obligations, provided that all
H-1B nonimmigrants employed under it are, in fact, exempt. An LCA which
indicates that it will be used only for exempt H-1B nonimmigrants shall
not be used to support H-1B petitions or requests for extensions of
status for H-1B nonimmigrants who are not, in fact, exempt. Further, an
employer which attests that the LCA will be used only for exempt H-1B
nonimmigrants but uses the LCA to employ non-exempt H-1B nonimmigrants
(through petitions and/or extensions of status) shall--despite the LCA
designation of exempt H-1B nonimmigrants--be held to its obligations to
comply with the attestation requirements concerning nondisplacement of
U.S. workers and recruitment of U.S. workers (as described in Sec. Sec.
655.738 and 655.739, respectively), as explicitly acknowledged and
agreed on the LCA.
(4) The special provisions for H-1B-dependent employers and willful
violator employers do not apply to LCAs filed from October 1, 2003
through March 7, 2005, or before January 19,
[[Page 449]]
2001. However, all LCAs filed before October 1, 2003, and containing the
additional attestation obligations described in this section and
Sec. Sec. 655.737 through 655.739, will remain in effect with regard to
those obligations, for so long as any H-1B nonimmigrant(s) employed
pursuant to the LCA(s) remain employed by the employer.
[65 FR 80223, Dec. 20, 2000; 66 FR 1375, Jan. 8, 2001, as amended at 66
FR 63302, Dec. 5, 2001; 70 FR 72563, Dec. 5, 2005]
Sec. 655.737 What are ``exempt'' H-1B nonimmigrants, and how does
their employment affect the additional attestation obligations
of H-1B-dependent employers and willful violator employers?
(a) An employer that is H-1B-dependent or a willful violator of the
H-1B program requirements (as described in Sec. 655.736) is subject to
the attestation obligations regarding displacement of U.S. workers and
recruitment of U.S. workers (as described in Sec. Sec. 655.738 and
655.739, respectively) for all LCAs that are filed during the time
period specified in Sec. 655.736(g). However, these additional
obligations do not apply to an LCA filed by such an employer if the LCA
is used only for the employment of ``exempt'' H-1B nonimmigrants
(through petitions and/or extensions of status) as described in this
section.
(b) What is the test or standard for determining an H-1B
nonimmigrant's ``exempt'' status? An H-1B nonimmigrant is ``exempt'' for
purposes of this section if the nonimmigrant meets either of the two
following criteria:
(1) Receives wages (including cash bonuses and similar compensation)
at an annual rate equal to at least $60,000; or
(2) Has attained a master's or higher degree (or its equivalent) in
a specialty related to the intended employment.
(c) How is the $60,000 annual wage to be determined? The H-1B
nonimmigrant can be considered to be an ``exempt'' worker, for purposes
of this section, if the nonimmigrant actually receives hourly wages or
annual salary totaling at least $60,000 in the calendar year. The
standards applicable to the employer's satisfaction of the required wage
obligation are applicable to the determination of whether the $60,000
wages or salary are received (see Sec. 655.731(c)(2) and (3)). Thus,
employer contributions or costs for benefits such as health insurance,
life insurance, and pension plans cannot be counted toward this $60,000.
The compensation to be counted or credited for these purposes could
include cash bonuses and similar payments, provided that such
compensation is paid to the worker ``cash in hand, free and clear, when
due'' (Sec. 655.731(c)(1)), meaning that the compensation has readily
determinable market value, is readily convertible to cash tender, and is
actually received by the employee when due (which must be within the
year for which the employer seeks to count or credit the compensation
toward the employee's $60,000 earnings to qualify for exempt status).
Cash bonuses and similar compensation can be counted or credited toward
the $60,000 for ``exempt'' status only if payment is assured (i.e., if
the payment is contingent or conditional on some event such as the
employer's annual profits, the employer must guarantee payment even if
the contingency is not met). The full $60,000 annual wages or salary
must be received by the employee in order for the employee to have
``exempt'' status. The wages or salary required for ``exempt'' status
cannot be decreased or pro rated based on the employee's part-time work
schedule; an H-1B nonimmigrant working part-time, whose actual annual
compensation is less than $60,000, would not qualify as exempt on the
basis of wages, even if the worker's earnings, if projected to a full-
time work schedule, would theoretically exceed $60,000 in a year. Where
an employee works for less than a full year, the employee must receive
at least the appropriate pro rata share of the $60,000 in order to be
``exempt'' (e.g., an employee who resigns after three months must be
paid at least $15,000). In the event of an investigation pursuant to
subpart I of this part, the Administrator will determine whether the
employee has received the required $60,000 per year, using the
employee's anniversary date to determine the one-year period; for an
employee who had worked for less than a full year (either at the
beginning of employment, or after his/
[[Page 450]]
her last anniversary date), the determination as to the $60,000 annual
wages will be on a pro rata basis (i.e., whether the employee had been
paid at a rate of $60,000 per year (or $5,000 per month) including any
unpaid, guaranteed bonuses or similar compensation).
(d) How is the ``master's or higher degree (or its equivalent) in a
specialty related to the intended employment'' to be determined? (1)
``Master's or higher degree (or its equivalent),'' for purposes of this
section means a foreign academic degree from an institution which is
accredited or recognized under the law of the country where the degree
was obtained, and which is equivalent to a master's or higher degree
issued by a U.S. academic institution. The equivalence to a U.S.
academic degree cannot be established through experience or through
demonstration of expertise in the academic specialty (i.e., no ``time
equivalency'' or ``performance equivalency'' will be recognized as
substituting for a degree issued by an academic institution). The DHS
and the Department will consult appropriate sources of expertise in
making the determination of equivalency between foreign and U.S.
academic degrees. Upon the request of the DHS or the Department, the
employer shall provide evidence to establish that the H-1B nonimmigrant
has received the degree, that the degree was earned in the asserted
field of study, including an academic transcript of courses, and that
the institution from which the degree was obtained was accredited or
recognized.
(2) ``Specialty related to the intended employment,'' for purposes
of this section, means that the academic degree is in a specialty which
is generally accepted in the industry or occupation as an appropriate or
necessary credential or skill for the person who undertakes the
employment in question. A ``specialty'' which is not generally accepted
as appropriate or necessary to the employment would not be considered to
be sufficiently ``related' to afford the H-1B nonimmigrant status as an
``exempt H-1B nonimmigrant.''
(e) When and how is the determination of the H-1B nonimmigrant's
``exempt'' status to be made? An employer that is H-1B-dependent or a
willful violator (as described in Sec. 655.736) may designate on the
LCA that the LCA will be used only to support H-1B petition(s) and/or
request(s) for extension of status for ``exempt'' H-1B nonimmigrants.
(1) If the employer makes the designation of ``exempt'' H-1B
nonimmigrant(s) on the LCA, then the DHS--as part of the adjudication of
the H-1B petition or request for extension of status--will determine the
worker's ``exempt'' status, since an H-1B petition must be supported by
an LCA consistent with the petition (i.e., occupation, area of intended
employment, exempt status). The employer shall maintain, in the public
access file maintained in accordance with Sec. 755.760, a list of the
H-1B nonimmigrant(s) whose petition(s) and/or request(s) are supported
by LCA(s) which the employer has attested will be used only for exempt
H-1B nonimmigrants. In the event of an investigation under subpart I of
this part, the Administrator will give conclusive effect to an DHS
determination of ``exempt'' status based on the nonimmigrant's
educational attainments (i.e., master's or higher degree (or its
equivalent) in a specialty related to the intended employment) unless
the determination was based on false information. If the DHS
determination of ``exempt'' status was based on the assertion that the
nonimmigrant would receive wages (including cash bonuses and similar
compensation) at an annual rate equal to at least $60,000, the employer
shall provide evidence to show that such wages actually were received by
the nonimmigrant (consistent with paragraph (c) of this section and the
regulatory standards for satisfaction or payment of the required wages
as described in Sec. 655.731(c)(3)).
(2) If the employer makes the designation of ``exempt'' H-1B
nonimmigrants on the LCA, but is found in an enforcement action under
subpart I of this part to have used the LCA to employ nonimmigrants who
are, in fact, not exempt, then the employer will be subject to a finding
that it failed to comply with the nondisplacement and recruitment
obligations (as described in Sec. Sec. 655.738 and 655.739,
respectively) and may be assessed appropriate penalties and remedies.
[[Page 451]]
(3) If the employer does not make the designation of ``exempt'' H-1B
nonimmigrants on the LCA, then the employer has waived the option of not
being subject to the additional LCA attestation obligations on the basis
of employing only exempt H-1B nonimmigrants under the LCA. In the event
of an investigation under subpart I of this part, the Administrator will
not consider the question of the nonimmigrant(s)'s ``exempt'' status in
determining whether an H-1B-dependent employer or willful violator
employer has complied with such additional LCA attestation obligations.
[65 FR 80227, Dec. 20, 2000]
Sec. 655.738 What are the ``non-displacement of U.S. workers''
obligations that apply to H-1B-dependent employers and willful
violators, and how do they operate?
An employer that is subject to these additional attestation
obligations (under the standards described in Sec. 655.736) is
prohibited from displacement of any U.S. worker(s)--whether directly (in
its own workforce) or secondarily (at a worksite of a second employer)--
under the standards set out in this section.
(a) United States worker (U.S. worker) is defined in Sec. 655.715.
(b) Displacement, for purposes of this section, has two components:
``lay off'' of U.S. worker(s), and ``essentially equivalent jobs'' held
by U.S. worker(s) and H-1B nonimmigrant(s).
(1) Lay off of a U.S. worker means that the employer has caused the
worker's loss of employment, other than through--
(i) Discharge of a U.S. worker for inadequate performance, violation
of workplace rules, or other cause related to the worker's performance
or behavior on the job;
(ii) A U.S. worker's voluntary departure or voluntary retirement (to
be assessed in light of the totality of the circumstances, under
established principles concerning ``constructive discharge'' of workers
who are pressured to leave employment);
(iii) Expiration of a grant or contract under which a U.S. worker is
employed, other than a temporary employment contract entered into in
order to evade the employer's non-displacement obligation. The question
is whether the loss of the contract or grant has caused the worker's
loss of employment. It would not be a layoff where the job loss results
from the expiration of a grant or contract without which there is no
alternative funding or need for the U.S. worker's position on that or
any other grant or contract (e.g., the expiration of a research grant
that funded a project on which the worker was employed at an academic or
research institution; the expiration of a staffing firm's contract with
a customer where the U.S. worker was hired expressly to work pursuant to
that contract and the employer has no practice of moving workers to
other customers or projects upon the expiration of contract(s)). On the
other hand, it would be a layoff where the employer's normal practice is
to move the U.S. worker from one contract to another when a contract
expires, and work on another contract for which the worker is qualified
is available (e.g., staffing firm's contract with one customer ends and
another contract with a different customer begins); or
(iv) A U.S. worker who loses employment is offered, as an
alternative to such loss, a similar employment opportunity with the same
employer (or, in the case of secondary displacement at a worksite of a
second employer, as described in paragraph (d) of this section, a
similar employment opportunity with either employer) at equivalent or
higher compensation and benefits than the position from which the U.S.
worker was discharged, regardless of whether or not the U.S. worker
accepts the offer. The validity of the offer of a similar employment
opportunity will be assessed in light of the following factors:
(A) The offer is a bona fide offer, rather than an offer designed to
induce the U.S. worker to refuse or an offer made with the expectation
that the worker will refuse;
(B) The offered job provides the U.S. worker an opportunity similar
to that provided in the job from which he/she is discharged, in terms
such as a similar level of authority, discretion, and responsibility, a
similar opportunity
[[Page 452]]
for advancement within the organization, and similar tenure and work
scheduling;
(C) The offered job provides the U.S. worker equivalent or higher
compensation and benefits to those provided in the job from which he/she
is discharged. The comparison of compensation and benefits includes all
forms of remuneration for employment, whether or not called wages and
irrespective of the time of payment (e.g., salary or hourly wage rate;
profit sharing; retirement plan; expense account; use of company car).
The comparison also includes such matters as cost of living
differentials and relocation expenses (e.g., a New York City
``opportunity'' at equivalent or higher compensation and benefits
offered to a worker discharged from a job in Kansas City would provide a
wage adjustment from the Kansas City pay scale and would include
relocation costs).
(2) Essentially equivalent jobs. For purposes of the displacement
prohibition, the job from which the U.S. worker is laid off must be
essentially equivalent to the job for which an H-1B nonimmigrant is
sought. To determine whether the jobs of the laid off U.S. worker(s) and
the H-1B nonimmigrant(s) are essentially equivalent, the comparison(s)
shall be on a one-to-one basis where appropriate (i.e., one U.S. worker
left employment and one H-1B nonimmigrant joined the workforce) but
shall be broader in focus where appropriate (e.g., an employer, through
reorganization, eliminates an entire department with several U.S.
workers and then staffs this department's function(s) with H-1B
nonimmigrants). The following comparisons are to be made:
(i) Job responsibilities. The job of the H-1B nonimmigrant must
involve essentially the same duties and responsibilities as the job from
which the U.S. worker was laid off. The comparison focuses on the core
elements of and competencies for the job, such as supervisory duties, or
design and engineering functions, or budget and financial
accountability. Peripheral, non-essential duties that could be tailored
to the particular abilities of the individual workers would not be
determinative in this comparison. The job responsibilities must be
similar and both workers capable of performing those duties.
(ii) Qualifications and experience of the workers. The
qualifications of the laid off U.S. worker must be substantially
equivalent to the qualifications of the H-1B nonimmigrant. The
comparison is to be confined to the experience and qualifications (e.g.,
training, education, ability) of the workers which are directly relevant
to the actual performance requirements of the job, including the
experience and qualifications that would materially affect a worker's
relative ability to perform the job better or more efficiently. While it
would be appropriate to compare whether the workers in question have
``substantially equivalent'' qualifications and experience, the workers
need not have identical qualifications and experience (e.g., a
bachelor's degree from one accredited university would be considered to
be substantially equivalent to a bachelor's degree from another
accredited university; 15 years experience in an occupation would be
substantially equivalent to 10 years experience in that occupation). It
would not be appropriate to compare the workers' relative ages, their
sexes, or their ethnic or religious identities.
(iii) Area of employment. The job of the H-1B nonimmigrant must be
located in the same area of employment as the job from which the U.S.
worker was laid off. The comparison of the locations of the jobs is
confined to the area within normal commuting distance of the worksite or
physical location where the work of the H-1B nonimmigrant is or will be
performed. For purposes of this comparison, if both such worksites or
locations are within a Metropolitan Statistical Area or a Primary
Metropolitan Statistical Area, they will be deemed to be within the same
area of employment.
(3) The worker's rights under a collective bargaining agreement or
other employment contract are not affected by the employer's LCA
obligations as to non-displacement of such worker.
(c) Direct displacement. An H-1B-dependent or willful-violator
employer (as described in Sec. 655.736) is prohibited from displacing a
U.S. worker in its own workforce (i.e., a U.S. worker
[[Page 453]]
``employed by the employer'') within the period beginning 90 days before
and ending 90 days after the filing date of an H-1B petition supported
by an LCA described in Sec. 655.736(g). The following standards and
guidance apply under the direct displacement prohibition:
(1) Which U.S. workers are protected against ``direct
displacement''? This prohibition covers the H-1B employer's own
workforce--U.S. workers ``employed by the employer''--who are employed
in jobs that are essentially equivalent to the jobs for which the H-1B
nonimmigrant(s) are sought (as described in paragraph (b)(2) of this
section). The term ``employed by the employer'' is defined in Sec.
655.715.
(2) When does the ``direct displacement'' prohibition apply? The H-
1B employer is prohibited from displacing a U.S. worker during a
specific period of time before and after the date on which the employer
files any H-1B petition supported by the LCA which is subject to the
non-displacement obligation (as described in Sec. 655.736(g)). This
protected period is from 90 days before until 90 days after the petition
filing date.
(3) What constitutes displacement of a U.S. worker? The H-1B
employer is prohibited from laying off a U.S. worker from a job that is
essentially the equivalent of the job for which an H-1B nonimmigrant is
sought (as described in paragraph (b)(1) of this section).
(d) Secondary displacement. An H-1B-dependent or willful-violator
employer (as described in Sec. 655.736) is prohibited from placing
certain H-1B nonimmigrant(s) with another employer where there are
indicia of an employment relationship between the nonimmigrant and that
other employer (thus possibly affecting the jobs of U.S. workers
employed by that other employer), unless and until the H-1B employer
makes certain inquiries and/or has certain information concerning that
other employer's displacement of similarly employed U.S. workers in its
workforce. Employers are cautioned that even if the required inquiry of
the secondary employer is made, the H-1B-dependent or willful violator
employer shall be subject to a finding of a violation of the secondary
displacement prohibition if the secondary employer, in fact, displaces
any U.S. worker(s) during the applicable time period (see Sec.
655.810(d)). The following standards and guidance apply under the
secondary displacement prohibition:
(1) Which U.S. workers are protected against ``secondary
displacement''? This provision applies to U.S. workers employed by the
other or ``secondary'' employer (not those employed by the H-1B
employer) in jobs that are essentially equivalent to the jobs for which
certain H-1B nonimmigrants are placed with the other/secondary employer
(as described in paragraph (b)(2) of this section). The term ``employed
by the employer'' is defined in Sec. 655.715.
(2) Which H-1B nonimmigrants activate the secondary displacement
prohibition? Not every placement of an H-1B nonimmigrant with another
employer will activate the prohibition and--depending upon the
particular facts--an H-1B employer (such as a service provider) may be
able to place H-1B nonimmigrant(s) at a client or customer's worksite
without being subject to the prohibition. The prohibition applies to the
placement of an H-1B nonimmigrant whose H-1B petition is supported by an
LCA described in Sec. 655.736(g) and whose placement with the other/
secondary employer meets both of the following criteria:
(i) The nonimmigrant performs duties in whole or in part at one or
more worksites owned, operated, or controlled by the other/secondary
employer; and
(ii) There are indicia of an employment relationship between the
nonimmigrant and the other/secondary employer. The relationship between
the H-1B-nonimmigrant and the other/secondary need not constitute an
``employment'' relationship (as defined in Sec. 655.715), and the
applicability of the secondary displacement provision does not establish
such a relationship. Relevant indicia of an employment relationship
include:
(A) The other/secondary employer has the right to control when,
where, and how the nonimmigrant performs the job (the presence of this
indicia would suggest that the relationship between the nonimmigrant and
the other/secondary employer approaches the relationship which triggers
the secondary displacement provision);
[[Page 454]]
(B) The other/secondary employer furnishes the tools, materials, and
equipment;
(C) The work is performed on the premises of the other/secondary
employer (this indicia alone would not trigger the secondary
displacement provision);
(D) There is a continuing relationship between the nonimmigrant and
the other/secondary employer;
(E) The other/secondary employer has the right to assign additional
projects to the nonimmigrant;
(F) The other/secondary employer sets the hours of work and the
duration of the job;
(G) The work performed by the nonimmigrant is part of the regular
business (including governmental, educational, and non-profit
operations) of the other/secondary employer;
(H) The other/secondary employer is itself in business; and
(I) The other/secondary employer can discharge the nonimmigrant from
providing services.
(3) What other/secondary employers are included in the prohibition
on secondary displacement of U.S. workers by the H-1B employer? The
other/secondary employer who accepts the placement and/or services of
the H-1B employer's nonimmigrant employee(s) need not be an H-1B
employer. The other/secondary employer would often be (but is not
limited to) the client or customer of an H-1B employer that is a
staffing firm or a service provider which offers the services of H-1B
nonimmigrants under a contract (e.g., a medical staffing firm under
contract with a nursing home provides H-1B nonimmigrant physical
therapists; an information technology staffing firm under contract with
a bank provides H-1B nonimmigrant computer engineers). Only the H-1B
employer placing the nonimmigrant with the secondary employer is subject
to the non-displacement obligation on the LCA, and only that employer is
liable in an enforcement action pursuant to subpart I of this part if
the other/secondary employer, in fact, displaces any of its U.S.
worker(s) during the applicable time period. The other/secondary
employer will not be subject to sanctions in an enforcement action
pursuant to subpart I of this part (except in circumstances where such
other/secondary employer is, in fact, an H-1B employer and is found to
have failed to comply with its own obligations). (Note to paragraph
(d)(3): Where the other/secondary employer's relationship to the H-1B
nonimmigrant constitutes ``employment'' for purposes of a statute other
than the H-1B provision of the INA, such as the Fair Labor Standards Act
(29 U.S.C. 201 et seq.), the other/secondary employer would be subject
to all obligations of an employer of the nonimmigrant under such other
statute.)
(4) When does the ``secondary displacement'' prohibition apply? The
H-1B employer's obligation of inquiry concerns the actions of the other/
secondary employer during the specific period beginning 90 days before
and ending 90 days after the date of the placement of the H-1B
nonimmigrant(s) with such other/secondary employer.
(5) What are the H-1B employer's obligations concerning inquiry and/
or information as to the other/secondary employer's displacement of U.S.
workers? The H-1B employer is prohibited from placing the H-1B
nonimmigrant with another employer, unless the H-1B employer has
inquired of the other/secondary employer as to whether, and has no
knowledge that, within the period beginning 90 days before and ending 90
days after the date of such placement, the other/secondary employer has
displaced or intends to displace a similarly-employed U.S. worker
employed by such other/secondary employer. The following standards and
guidance apply to the H-1B employer's obligation:
(i) The H-1B employer is required to exercise due diligence and to
make a reasonable effort to enquire about potential secondary
displacement, through methods which may include (but are not limited
to)--
(A) Securing and retaining a written assurance from the other/
secondary employer that it has not and does not intend to displace a
similarly-employed U.S. worker within the prescribed period;
(B) Preparing and retaining a memorandum to the file, prepared at
the same time or promptly after receiving the other/secondary employer's
oral statement that it has not and does not
[[Page 455]]
intend to displace a similarly-employed U.S. worker within the
prescribed period (such memorandum shall include the substance of the
conversation, the date of the communication, and the names of the
individuals who participated in the conversation, including the
person(s) who made the inquiry on behalf of the H-1B employer and made
the statement on behalf of the other/secondary employer); or
(C) including a secondary displacement clause in the contract
between the H-1B employer and the other/secondary employer, whereby the
other/secondary employer would agree that it has not and will not
displace similarly-employed U.S. workers within the prescribed period.
(ii) The employer's exercise of due diligence may require further,
more particularized inquiry of the other/secondary employer in
circumstances where there is information which indicates that U.S.
worker(s) have been or will be displaced (e.g., where the H-1B
nonimmigrants will be performing functions that the other/secondary
employer performed with its own workforce in the past). The employer is
not permitted to disregard information which would provide knowledge
about potential secondary displacement (e.g., newspaper reports of
relevant lay-offs by the other/secondary employer) if such information
becomes available before the H-1B employer's placement of H-1B
nonimmigrants with such employer. Under such circumstances, the H-1B
employer would be expected to recontact the other/secondary employer and
receive credible assurances that no lay-offs of similarly-employed U.S.
workers are planned or have occurred within the prescribed period.
(e) What documentation is required of H-1B employers concerning the
non-displacement obligation? The H-1B employer is responsible for
demonstrating its compliance with the non-displacement obligation
(whether direct or indirect), if applicable.
(1) Concerning direct displacement (as described in paragraph (c) of
this section), the employer is required to retain all records the
employer creates or receives concerning the circumstances under which
each U.S. worker, in the same locality and same occupation as any H-1B
nonimmigrant(s) hired, left its employ in the period from 90 days before
to 90 days after the filing date of the employer's petition for the H-1B
nonimmigrant(s), and for any such U.S. worker(s) for whom the employer
has taken any action during the period from 90 days before to 90 days
after the filing date of the H-1B petition to cause the U.S. worker's
termination (e.g., a notice of future termination of the employee's
job). For all such employees, the H-1B employer shall retain at least
the following documents: the employee's name, last-known mailing
address, occupational title and job description; any documentation
concerning the employee's experience and qualifications, and principal
assignments; all documents concerning the departure of such employees,
such as notification by the employer of termination of employment
prepared by the employer or the employee and any responses thereto, and
evaluations of the employee's job performance. Finally, the employer is
required to maintain a record of the terms of any offers of similar
employment to such U.S. workers and the employee's response thereto.
(2) Concerning secondary displacement (as described in paragraph (d)
of this section), the H-1B employer is required to maintain
documentation to show the manner in which it satisfied its obligation to
make inquiries as to the displacement of U.S. workers by the other/
secondary employer with which the H-1B employer places any H-1B
nonimmigrants (as described in paragraph (d)(5) of this section).
[65 FR 80228, Dec. 20, 2000]
Sec. 655.739 What is the ``recruitment of U.S. workers'' obligation
that applies to H-1B-dependent employers and willful
violators, and how does it operate?
An employer that is subject to this additional attestation
obligation (under the standards described in Sec. 655.736) is
required--prior to filing the LCA or any petition or request for
extension of status supported by the LCA--to take good faith steps to
recruit U. S. workers in the United States for the job(s) in the United
[[Page 456]]
States for which the H-1B nonimmigrant(s) is/are sought. The recruitment
shall use procedures that meet industry-wide standards and offer
compensation that is at least as great as the required wage to be paid
to H-1B nonimmigrants pursuant to Sec. 655.731(a) (i.e., the higher of
the local prevailing wage or the employer's actual wage). The employer
may use legitimate selection criteria relevant to the job that are
normal or customary to the type of job involved, so long as such
criteria are not applied in a discriminatory manner. This section
provides guidance for the employer's compliance with the recruitment
obligation.
(a) ``United States worker'' (``U.S. worker'') is defined in Sec.
655.715.
(b) ``Industry,'' for purposes of this section, means the set of
employers which primarily compete for the same types of workers as those
who are the subjects of the H-1B petitions to be filed pursuant to the
LCA. Thus, a hospital, university, or computer software development firm
is to use the recruitment standards utilized by the health care,
academic, or information technology industries, respectively, in hiring
workers in the occupations in question. Similarly, a staffing firm,
which places its workers at job sites of other employers, is to use the
recruitment standards of the industry which primarily employs such
workers (e.g., the health care industry, if the staffing firm is placing
physical therapists (whether in hospitals, nursing homes, or private
homes); the information technology industry, if the staffing firm is
placing computer programmers, software engineers, or other such
workers).
(c) ``Recruitment,'' for purposes of this section, means the process
by which an employer seeks to contact or to attract the attention of
person(s) who may apply for employment, solicits applications from
person(s) for employment, receives applications, and reviews and
considers applications so as to present the appropriate candidates to
the official(s) who make(s) the hiring decision(s) (i.e., pre-selection
treatment of applications and applicants).
(d) ``Solicitation methods,'' for purposes of this section, means
the techniques by which an employer seeks to contact or to attract the
attention of potential applicants for employment, and to solicit
applications from person(s) for employment.
(1) Solicitation methods may be either external or internal to the
employer's workforce (with internal solicitation to include current and
former employees).
(2) Solicitation methods may be either active (where an employer
takes positive, proactive steps to identify potential applicants and to
get information about its job openings into the hands of such person(s))
or passive (where potential applicants find their way to an employer's
job announcements).
(i) Active solicitation methods include direct communication to
incumbent workers in the employer's operation and to workers previously
employed in the employer's operation and elsewhere in the industry;
providing training to incumbent workers in the employer's organization;
contact and outreach through collective bargaining organizations, trade
associations and professional associations; participation in job fairs
(including at minority-serving institutions, community/junior colleges,
and vocational/technical colleges); use of placement services of
colleges, universities, community/junior colleges, and business/trade
schools; use of public and/or private employment agencies, referral
agencies, or recruitment agencies (``headhunters'').
(ii) Passive solicitation methods include advertising in general
distribution publications, trade or professional journals, or special
interest publications (e.g., student-oriented; targeted to
underrepresented groups, including minorities, persons with
disabilities, and residents of rural areas); America's Job Bank or other
Internet sites advertising job vacancies; notices at the employer's
worksite(s) and/or on the employer's Internet ``home page.''
(e) How are ``industry-wide standards for recruitment'' to be
identified? An employer is not required to utilize any particular number
or type of recruitment methods, and may make a determination of the
standards for the industry through methods such as trade organization
surveys, studies by consultative groups, or reports/statements
[[Page 457]]
from trade organizations. An employer which makes such a determination
should be prepared to demonstrate the industry-wide standards in the
event of an enforcement action pursuant to subpart I of this part. An
employer's recruitment shall be at a level and through methods and media
which are normal, common or prevailing in the industry, including those
strategies that have been shown to be successfully used by employers in
the industry to recruit U.S. workers. An employer may not utilize only
the lowest common denominator of recruitment methods used in the
industry, or only methods which could reasonably be expected to be
likely to yield few or no U.S. worker applicants, even if such
unsuccessful recruitment methods are commonly used by employers in the
industry. An employer's recruitment methods shall include, at a minimum,
the following:
(1) Both internal and external recruitment (i.e., both within the
employer's workforce (former as well as current workers) and among U.S.
workers elsewhere in the economy); and
(2) At least some active recruitment, whether internal (e.g.,
training the employer's U.S. worker(s) for the position(s)) or external
(e.g., use of recruitment agencies or college placement services).
(f) How are ``legitimate selection criteria relevant to the job that
are normal or customary to the type of job involved'' to be identified?
In conducting recruitment of U.S. workers (i.e., in soliciting
applications and in pre-selection screening or considering of
applicants), an employer shall apply selection criteria which satisfy
all of the following three standards (i.e., paragraph (b) (1) through
(3)). Under these standards, an employer would not apply spurious
criteria that discriminate against U.S. worker applicants in favor of H-
1B nonimmigrants. An employer that uses criteria which fail to meet
these standards would be considered to have failed to conduct its
recruitment of U.S. workers in good faith.
(1) Legitimate criteria, meaning criteria which are legally
cognizable and not violative of any applicable laws (e.g., employer may
not use age, sex, race or national origin as selection criteria);.
(2) Relevant to the job, meaning criteria which have a nexus to the
job's duties and responsibilities; and
(3) Normal and customary to the type of job involved, meaning
criteria which would be necessary or appropriate based on the practices
and expectations of the industry, rather than on the preferences of the
particular employer.
(g) What actions would constitute a prohibited ``discriminatory
manner'' of recruitment? The employer shall not apply otherwise-
legitimate screening criteria in a manner which would skew the
recruitment process in favor of H-1B nonimmigrants. In other words, the
employer's application of its screening criteria shall provide full and
fair solicitation and consideration of U.S. applicants. The recruitment
would be considered to be conducted in a discriminatory manner if the
employer applied its screening criteria in a disparate manner (whether
between H-1B and U.S. workers, or between jobs where H-1B nonimmigrants
are involved and jobs where such workers are not involved). The employer
would also be considered to be recruiting in a discriminatory manner if
it used screening criteria that are prohibited by any applicable
discrimination law (e.g., sex, race, age, national origin). The employer
that conducts recruitment in a discriminatory manner would be considered
to have failed to conduct its recruitment of U.S. workers in good faith.
(h) What constitute ``good faith steps'' in recruitment of U.S.
workers? The employer shall perform its recruitment, as described in
paragraphs (d) through (g) of this section, so as to offer fair
opportunities for employment to U.S. workers, without skewing the
recruitment process against U.S. workers or in favor of H-1B
nonimmigrants. No specific regimen is required for solicitation methods
seeking applicants or for pre-selection treatment screening applicants.
The employer's recruitment process, including pre-selection treatment,
must assure that U.S. workers are given a fair chance for consideration
for a job, rather than being ignored or rejected through a process that
serves the employer's preferences
[[Page 458]]
with respect to the make up of its workforce (e.g., the Department would
look with disfavor on a practice of interviewing H-1B applicants but not
U.S. applicants, or a practice of screening the applications of H-1B
nonimmigrants differently from the applications of U.S. workers). The
employer shall not exercise a preference for its incumbent nonimmigrant
workers who do not yet have H-1B status (e.g., workers on student
visas). The employer shall recruit in the United States, seeking U.S.
worker(s), for the job(s) in the United States for which H-1B
nonimmigrant(s) are or will be sought.
(i) What documentation is the employer required to make or maintain,
concerning its recruitment of U.S. workers?
(1) The employer shall maintain documentation of the recruiting
methods used, including the places and dates of the advertisements and
postings or other recruitment methods used, the content of the
advertisements and postings, and the compensation terms (if such are not
included in the content of the advertisements and postings). The
documentation may be in any form, including copies of advertisements or
proofs from the publisher, the order or confirmation from the publisher,
an electronic or printed copy of the Internet posting, or a memorandum
to the file.
(2) The employer shall retain any documentation it has received or
prepared concerning the treatment of applicants, such as copies of
applications and/or related documents, test papers, rating forms,
records regarding interviews, and records of job offers and applicants'
responses. To comply with this requirement, the employer is not required
to create any documentation it would not otherwise create.
(3) The documentation maintained by the employer shall be made
available to the Administrator in the event of an enforcement action
pursuant to subpart I of this part. The documentation shall be
maintained for the period of time specified in Sec. 655.760.
(4) The employer's public access file maintained in accordance with
Sec. 655.760 shall contain information summarizing the principal
recruitment methods used and the time frame(s) in which such recruitment
methods were used. This may be accomplished either through a memorandum
or through copies of pertinent documents.
(j) In addition to conducting good faith recruitment of U.S. workers
(as described in paragraphs (a) through (h) of this section), the
employer is required to have offered the job to any U.S. worker who
applies and is equally or better qualified for the job than the H-1B
nonimmigrant (see 8 U.S.C. 1182(n)(1)(G)(i)(II)); this requirement is
enforced by the Department of Justice (see 8 U.S.C. 1182(n)(5); 20 CFR
655.705(c)).
[65 FR 80231, Dec. 20, 2000]
Sec. 655.740 What actions are taken on labor condition applications?
(a) Actions on labor condition applications submitted for filing.
Once a labor condition application has been received from an employer, a
determination shall be made by the ETA Certifying Officer whether to
certify the labor condition application or return it to the employer not
certified.
(1) Certification of labor condition application. Where all items on
Form ETA 9035 or Form ETA 9035E have been completed, the form is not
obviously inaccurate, and in the case of Form ETA 9035, it contains the
signature of the employer or its authorized agent or representative, the
Certifying Officer shall certify the labor condition application unless
it falls within one of the categories set forth in paragraph (a)(2) of
this section. The Certifying Officer shall make a determination to
certify or not certify the labor condition application within 7 working
days of the date the application is received and date-stamped by the
Department. If the labor condition application is certified, the
Certifying Officer shall return a certified copy of the labor condition
application to the employer or the employer's authorized agent or
representative. The employer shall file the certified labor condition
application with the appropriate DHS office in the manner prescribed by
DHS. The DHS shall determine whether each occupational classification
named in the certified labor condition application is a specialty
occupation or is a fashion
[[Page 459]]
model of distinguished merit and ability.
(2) Determinations not to certify labor condition applications. ETA
shall not certify a labor condition application and shall return such
application to the employer or the employer's authorized agent or
representative, when either or both of the following two conditions
exists:
(i) When the Form ETA 9035 or 9035E is not properly completed.
Examples of a Form ETA 9035 or 9035E which is not properly completed
include instances where the employer has failed to check all the
necessary boxes; or where the employer has failed to state the
occupational classification, number of nonimmigrants sought, wage rate,
period of intended employment, place of intended employment, or
prevailing wage and its source; or, in the case of Form ETA 9035, where
the application does not contain the signature of the employer or the
employer's authorized representative.
(ii) When the Form ETA 9035 or ETA 9035E contains obvious
inaccuracies. An obvious inaccuracy will be found if the employer files
an application in error--e.g., where the Administrator, Wage and Hour
Division, after notice and opportunity for a hearing pursuant to subpart
I of this part, has notified ETA in writing that the employer has been
disqualified from employing H-1B nonimmigrants under section 212(n)(2)
of the INA (8 U.S.C. 1182(n)(2)) or from employing H-1B1 or E-3
nonimmigrants under section 212(t)(3) of the INA (8 U.S.C. 1182(t)(3)).
Examples of other obvious inaccuracies include stating a wage rate below
the FLSA minimum wage, submitting an LCA earlier than six months before
the beginning date of the period of intended employment, identifying
multiple occupations on a single LCA, identifying a wage which is below
the prevailing wage listed on the LCA, or identifying a wage range where
the bottom of such wage range is lower than the prevailing wage listed
on the LCA.
(3) Correction and resubmission of labor condition application. If
the labor condition application is not certified pursuant to paragraph
(a)(2) (i) or (ii) of this section, ETA shall return it to the employer,
or the employer's authorized agent or representative, explaining the
reasons for such return without certification. The employer may
immediately submit a corrected application to ETA. A ``resubmitted'' or
``corrected'' labor condition application shall be treated as a new
application by ETA (i.e., on a ``first come, first served'' basis)
except that if the labor condition application is not certified pursuant
to paragraph (a)(2)(ii) of this section because of notification by the
Administrator of the employer's disqualification, such action shall be
the final decision of the Secretary and no application shall be
resubmitted by the employer.
(b) Challenges to labor condition applications. ETA shall not
consider information contesting a labor condition application received
by ETA prior to the determination on the application. Such information
shall not be made part of ETA's administrative record on the
application, but shall be referred to ESA to be processed as a complaint
pursuant to subpart I of this part, and, if such application is
certified by ETA, the complaint will be handled by ESA under subpart I
of this part.
(c) Truthfulness and adequacy of information. DOL is not the
guarantor of the accuracy, truthfulness or adequacy of a certified labor
condition application. The burden of proof is on the employer to
establish the truthfulness of the information contained on the labor
condition application.
[59 FR 65659, 65676, Dec. 20, 1994, as amended at 65 FR 80232, Dec. 20,
2000; 66 FR 63302, Dec. 5, 2001; 69 FR 68228, Nov. 23, 2004; 70 FR
72563, Dec. 5, 2005; 73 FR 19949, Apr. 11, 2008]
Sec. 655.750 What is the validity period of the labor condition
application?
(a) Validity of certified labor condition applications. A labor
condition application (LCA) certified under Sec. 655.740 is valid for
the period of employment indicated by the authorized DOL official on
Form ETA 9035E or ETA 9035. The validity period of an LCA will not begin
before the application is certified. If the approved LCA is the initial
LCA issued for the nonimmigrant, the period of authorized employment
must not exceed 3 years for an LCA issued on behalf of an H-1B or H-1B1
nonimmigrant and must not exceed 2 years for an LCA issued on behalf of
an
[[Page 460]]
E-3 nonimmigrant. If the approved LCA is for an extension of an H-1B1 it
must not exceed two years. The period of authorized employment in the
aggregate is based on the first date of employment and ends:
(1) In the case of an H-1B or initial H-1B1 LCA, on the latest date
indicated or three years after the employment start date under the LCA,
whichever comes first; or
(2) In the case of an E-3 or an H-1B1 extension LCA, on the latest
date indicated or two years after the employment start date under the
LCA, whichever comes first.
(b) Withdrawal of certified labor condition applications. (1) An
employer who has filed a labor condition application which has been
certified pursuant to Sec. 655.740 of this part may withdraw such labor
condition application at any time before the expiration of the validity
period of the application, provided that:
(i) H-1B, H-1B1, and E-3 nonimmigrants are not employed at the place
of employment pursuant to the LCA; and
(ii) The Administrator has not commenced an investigation of the
particular application. Any such request for withdrawal shall be null
and void; and the employer shall remain bound by the labor condition
application until the enforcement proceeding is completed, at which time
the application may be withdrawn.
(2) Requests for withdrawals must be in writing and must be sent to
ETA, Office of Foreign Labor Certification. ETA will publish the mailing
address, and any future mailing address changes, in the Federal
Register, and will also post the address on the DOL Web site at http://
www.foreignlaborcert.doleta.gov/.
(3) An employer shall comply with the ``required wage rate'' and
``prevailing working conditions'' statements of its labor condition
application required under Sec. Sec. 655.731 and 655.732 of this part,
respectively, even if such application is withdrawn, at any time H-1B
nonimmigrants are employed pursuant to the application, unless the
application is superseded by a subsequent application which is certified
by ETA.
(4) An employer's obligation to comply with the ``no strike or
lockout'' and ``notice'' statements of its labor condition application
(required under Sec. Sec. 655.733 and 655.734 of this part,
respectively), shall remain in effect and the employer shall remain
subject to investigation and sanctions for misrepresentation on these
statements even if such application is withdrawn, regardless of whether
H-1B nonimmigrants are actually employed, unless the application is
superseded by a subsequent application which is certified by ETA.
(5) Only for the purpose of assuring the labor standards protections
afforded under the H-1B program, where an employer files a petition with
DHS under the H-1B classification pursuant to a certified LCA that had
been withdrawn by the employer, such petition filing binds the employer
to all obligations under the withdrawn LCA immediately upon receipt of
such petition by DHS.
(c) Invalidation or suspension of a labor condition application. (1)
Invalidation of a labor condition application shall result from
enforcement action(s) by the Administrator, Wage and Hour Division,
under subpart I of this part--e.g., a final determination finding the
employer's failure to meet the application's condition regarding strike
or lockout; or the employer's willful failure to meet the wage and
working conditions provisions of the application; or the employer's
substantial failure to meet the notice of specification requirements of
the application; see Sec. Sec. 655.734 and 655.760 of this part; or the
misrepresentation of a material fact in an application. Upon notice by
the Administrator of the employer's disqualification, ETA shall
invalidate the application and notify the employer, or the employer's
authorized agent or representative. ETA shall notify the employer in
writing of the reason(s) that the application is invalidated. When a
labor condition application is invalidated, such action shall be the
final decision of the Secretary.
(2) Suspension of a labor condition application may result from a
discovery by ETA that it made an error in certifying the application
because such application is incomplete, contains one or more obvious
inaccuracies, or has not been signed. In such event, ETA shall
immediately notify DHS and the
[[Page 461]]
employer. When an application is suspended, the employer may immediately
submit to the certifying officer a corrected or completed application.
If ETA does not receive a corrected application within 30 days of the
suspension, or if the employer was disqualified by the Administrator,
the application shall be immediately invalidated as described in
paragraph (c) of this section.
(3) An employer shall comply with the ``required wages rate'' and
``prevailing working conditions'' statements of its labor condition
application required under Sec. Sec. 655.731 and 655.732 of this part,
respectively, even if such application is suspended or invalidated, at
any time H-1B nonimmigrants are employed pursuant to the application,
unless the application is superseded by a subsequent application which
is certified by ETA.
(4) An employer's obligation to comply with the ``no strike or
lockout'' and ``notice'' statements of its labor condition application
(required under Sec. Sec. 655.733 and 655.734 of this part,
respectively), shall remain in effect and the employer shall remain
subject to investigation and sanctions for misrepresentation on these
statements even if such application is suspended or invalidated,
regardless of whether H-1B nonimmigrants are actually employed, unless
the application is superseded by a subsequent application which is
certified by ETA.
(d) Employers subject to disqualification. No labor condition
application shall be certified for an employer which has been found to
be disqualified from participation, in the H-1B program as determined in
a final agency action following an investigation by the Wage and Hour
Division pursuant to subpart I of this part.
[59 FR 65659, 65676, Dec. 20, 1994, as amended at 65 FR 80232, Dec. 20,
2000; 66 FR 63302, Dec. 5, 2001; 70 FR 72563, Dec. 5, 2005; 73 FR 19949,
Apr. 11, 2008]
Sec. 655.760 What records are to be made available to the public, and
what records are to be retained?
Paragraphs (a)(1) thru (a)(6) and paragraphs (b) and (c) of this
section also apply to the H-1B1 and E-3 visa categories.
(a) Public examination. The employer shall make a filed labor
condition application and necessary supporting documentation available
for public examination at the employer's principal place of business in
the U.S. or at the place of employment within one working day after the
date on which the labor condition application is filed with DOL. The
following documentation shall be necessary:
(1) A copy of the certified labor condition application (Form ETA
9035E or Form ETA 9035) and cover pages (Form ETA 9035CP). If the Form
ETA 9035E is submitted electronically, a printout of the certified
application shall be signed by the employer and maintained in its files
and included in the public examination file.
(2) Documentation which provides the wage rate to be paid the H-1B
nonimmigrant;
(3) A full, clear explanation of the system that the employer used
to set the ``actual wage'' the employer has paid or will pay workers in
the occupation for which the H-1B nonimmigrant is sought, including any
periodic increases which the system may provide--e.g., memorandum
summarizing the system or a copy of the employer's pay system or scale
(payroll records are not required, although they shall be made available
to the Department in an enforcement action).
(4) A copy of the documentation the employer used to establish the
``prevailing wage'' for the occupation for which the H-1B nonimmigrant
is sought (a general description of the source and methodology is all
that is required to be made available for public examination; the
underlying individual wage data relied upon to determine the prevailing
wage is not a public record, although it shall be made available to the
Department in an enforcement action); and
(5) A copy of the document(s) with which the employer has satisfied
the union/employee notification requirements of Sec. 655.734 of this
part.
(6) A summary of the benefits offered to U.S. workers in the same
occupational classifications as H-1B nonimmigrants, a statement as to
how any differentiation in benefits is made where not all employees are
offered or
[[Page 462]]
receive the same benefits (such summary need not include proprietary
information such as the costs of the benefits to the employer, or the
details of stock options or incentive distributions), and/or, where
applicable, a statement that some/all H-1B nonimmigrants are receiving
``home country'' benefits (see Sec. 655.731(c)(3));
(7) Where the employer undergoes a change in corporate structure, a
sworn statement by a responsible official of the new employing entity
that it accepts all obligations, liabilities and undertakings under the
LCAs filed by the predecessor employing entity, together with a list of
each affected LCA and its date of certification, and a description of
the actual wage system and FEIN of the new employing entity (see Sec.
655.730(e)(1)).
(8) Where the employer utilizes the definition of ``single
employer''in the IRC, a list of any entities included as part of the
single employer in making the determination as to its H-1B-dependency
status (see Sec. 655.736(d)(7));
(9) Where the employer is H-1B-dependent and/or a willful violator,
and indicates on the LCA(s) that only ``exempt'' H-1B nonimmigrants will
be employed, a list of such ``exempt'' H-1B nonimmigrants (see Sec.
655.737(e)(1));
(10) Where the employer is H-1B-dependent or a willful violator, a
summary of the recruitment methods used and the time frames of
recruitment of U.S. workers (or copies of pertinent documents showing
this information) (see Sec. 655.739(i)(4).
(b) National lists of applications and attestations. ETA shall
compile and maintain on a current basis a list of the labor condition
applications filed under INA section 212(n) regarding H-1B nonimmigrants
and a list of labor attestations filed under INA section 212(t)
regarding H-1B1 nonimmigrants. Each list shall be by employer, showing
the occupational classification, wage rate(s), number of nonimmigrants
sought, period(s) of intended employment, and date(s) of need for each
employer's application. The list shall be available for public
examination at the Office of Foreign Labor Certification, Department of
Labor, 200 Constitution Avenue, NW., Room C-4312, Washington, DC 20210.
(c) Retention of records. Either at the employer's principal place
of business in the U.S. or at the place of employment, the employer
shall retain copies of the records required by this subpart for a period
of one year beyond the last date on which any H-1B nonimmigrant is
employed under the labor condition application or, if no nonimmigrants
were employed under the labor condition application, one year from the
date the labor condition application expired or was withdrawn. Required
payroll records for the H-1B employees and other employees in the
occupational classification shall be retained at the employer's
principal place of business in the U.S. or at the place of employment
for a period of three years from the date(s) of the creation of the
record(s), except that if an enforcement action is commenced, all
payroll records shall be retained until the enforcement proceeding is
completed through the procedures set forth in subpart I of this part.
(Approved by the Office of Management and Budget under control number
1205-0310)
[59 FR 65659, 65676, Dec. 20, 1994, as amended at 60 FR 4029, Jan. 19,
1995; 65 FR 80232, Dec. 20, 2000; 66 FR 63302, Dec. 5, 2001; 69 FR
68228, Nov. 23, 2004; 70 FR 72563, Dec. 5, 2005; 71 FR 35521, June 21,
2006; 73 FR 19950, Apr. 11, 2008]
Subpart I_Enforcement of H-1B Labor Condition Applications and H-1B1
and E-3 Labor Attestations
Source: 59 FR 65672, 65676, Dec. 20, 1994, unless otherwise noted.
Sec. 655.800 Who will enforce the LCAs and how will they be enforced?
(a) Authority of Administrator. Except as provided in Sec. 655.807,
the Administrator shall perform all the Secretary's investigative and
enforcement functions under sections 212(n) and (t) of the INA (8 U.S.C.
1182(n) and (t)) and this subpart I and subpart H of this part.
(b) Conduct of investigations. The Administrator, either pursuant to
a complaint or otherwise, shall conduct such investigations as may be
appropriate and, in connection therewith, enter and inspect such places
and such records
[[Page 463]]
(and make transcriptions or copies thereof), question such persons and
gather such information as deemed necessary by the Administrator to
determine compliance regarding the matters which are the subject of the
investigation.
(c) Employer cooperation/availability of records. An employer shall
at all times cooperate in administrative and enforcement proceedings. An
employer being investigated shall make available to the Administrator
such records, information, persons, and places as the Administrator
deems appropriate to copy, transcribe, question, or inspect. No employer
subject to the provisions of sections 212(n) or (t) of the INA and/or
this subpart I or subpart H of this part shall interfere with any
official of the Department of Labor performing an investigation,
inspection or law enforcement function pursuant to 8 U.S.C. 1182(n) or
(t) or this subpart I or subpart H of this part. Any such interference
shall be a violation of the labor condition application and this subpart
I and subpart H of this part, and the Administrator may take such
further actions as the Administrator considers appropriate. (Federal
criminal statutes prohibit certain interference with a Federal officer
in the performance of official duties. 18 U.S.C. 111 and 18 U.S.C.
1114.)
(d) Confidentiality. The Administrator shall, to the extent possible
under existing law, protect the confidentiality of any person who
provides information to the Department in confidence in the course of an
investigation or otherwise under this subpart I or subpart H of this
part.
[65 FR 80233, Dec. 20, 2000, as amended at 69 FR 68228, Nov. 23, 2004]
Sec. 655.801 What protection do employees have from retaliation?
(a) No employer subject to this subpart I or subpart H of this part
shall intimidate, threaten, restrain, coerce, blacklist, discharge or in
any other manner discriminate against an employee (which term includes a
former employee or an applicant for employment) because the employee
has--
(1) Disclosed information to the employer, or to any other person,
that the employee reasonably believes evidences a violation of sections
212(n) or (t) of the INA or any regulation relating to sections 212(n)
or (t), including this subpart I and subpart H of this part and any
pertinent regulations of DHS or the Department of Justice; or
(2) Cooperated or sought to cooperate in an investigation or other
proceeding concerning the employer's compliance with the requirements of
sections 212(n) or (t) of the INA or any regulation relating to sections
212(n) or (t).
(b) It shall be a violation of this section for any employer to
engage in the conduct described in paragraph (a) of this section. Such
conduct shall be subject to the penalties prescribed by sections
212(n)(2)(C)(ii) or (t)(3)(C)(ii) of the INA and Sec. 655.810(b)(2),
i.e., a fine of up to $5,000, disqualification from filing petitions
under section 204 or section 214(c) of the INA for at least two years,
and such further administrative remedies as the Administrator considers
appropriate.
(c) Pursuant to sections 212(n)(2)(C)(v) and (t)(3)(C)(v) of the
INA, an H-1B nonimmigrant who has filed a complaint alleging that an
employer has discriminated against the employee in violation of
paragraph (a)(1) of this section may be allowed to seek other
appropriate employment in the United States, provided the employee is
otherwise eligible to remain and work in the United States. Such
employment may not exceed the maximum period of stay authorized for a
nonimmigrant classified under sections 212(n) or (t) of the INA, as
applicable. Further information concerning this provision should be
sought from the United States Citizenship and Immigration Services of
the Department of Homeland Security.
[65 FR 80233, Dec. 20, 2000, as amended at 69 FR 68229, Nov. 23, 2004;
71 FR 35521, June 21, 2006]
Sec. 655.805 What violations may the Administrator investigate?
(a) The Administrator, through investigation, shall determine
whether an H-1B employer has--
(1) Filed a labor condition application with ETA which misrepresents
a material fact (Note to paragraph (a)(1):
[[Page 464]]
Federal criminal statutes provide penalties of up to $10,000 and/or
imprisonment of up to five years for knowing and willful submission of
false statements to the Federal Government. 18 U.S.C. 1001; see also 18
U.S.C. 1546);
(2) Failed to pay wages (including benefits provided as compensation
for services), as required under Sec. 655.731 (including payment of
wages for certain nonproductive time);
(3) Failed to provide working conditions as required under Sec.
655.732;
(4) Filed a labor condition application for H-1B nonimmigrants
during a strike or lockout in the course of a labor dispute in the
occupational classification at the place of employment, as prohibited by
Sec. 655.733;
(5) Failed to provide notice of the filing of the labor condition
application, as required in Sec. 655.734;
(6) Failed to specify accurately on the labor condition application
the number of workers sought, the occupational classification in which
the H-1B nonimmigrant(s) will be employed, or the wage rate and
conditions under which the H-1B nonimmigrant(s) will be employed;
(7) Displaced a U.S. worker (including displacement of a U.S. worker
employed by a secondary employer at the worksite where an H-1B worker is
placed), as prohibited by Sec. 655.738 (if applicable);
(8) Failed to make the required displacement inquiry of another
employer at a worksite where H-1B nonimmigrant(s) were placed, as set
forth in Sec. 655.738 (if applicable);
(9) Failed to recruit in good faith, as required by Sec. 655.739
(if applicable);
(10) Displaced a U.S. worker in the course of committing a willful
violation of any of the conditions in paragraphs (a)(2) through (9) of
this section, or willful misrepresentation of a material fact on a labor
condition application;
(11) Required or accepted from an H-1B nonimmigrant payment or
remittance of the additional $500/$1,000 fee incurred in filing an H-1B
petition with the DHS, as prohibited by Sec. 655.731(c)(10)(ii);
(12) Required or attempted to require an H-1B nonimmigrant to pay a
penalty for ceasing employment prior to an agreed upon date, as
prohibited by Sec. 655.731(c)(10)(i);
(13) Discriminated against an employee for protected conduct, as
prohibited by Sec. 655.801;
(14) Failed to make available for public examination the application
and necessary document(s) at the employer's principal place of business
or worksite, as required by Sec. 655.760(a);
(15) Failed to maintain documentation, as required by this part; and
(16) Failed otherwise to comply in any other manner with the
provisions of this subpart I or subpart H of this part.
(b) The determination letter setting forth the investigation
findings (see Sec. 655.815) shall specify if the violations were found
to be substantial or willful. Penalties may be assessed and
disqualification ordered for violation of the provisions in paragraphs
(a)(5), (6), or (9) of this section only if the violation was found to
be substantial or willful. The penalties may be assessed and
disqualification ordered for violation of the provisions in paragraphs
(a)(2) or (3) of this section only if the violation was found to be
willful, but the Secretary may order payment of back wages (including
benefits) due for such violation whether or not the violation was
willful.
(c) For purposes of this part, ``willful failure'' means a knowing
failure or a reckless disregard with respect to whether the conduct was
contrary to sections 212(n)(1)(A)(i) or (ii), or 212(t)(1)(A)(i) or (ii)
of the INA, or Sec. Sec. 655.731 or 655.732. See McLaughlin v. Richland
Shoe Co., 486 U.S. 128 (1988); see also Trans World Airlines v.
Thurston, 469 U.S. 111 (1985).
(d) The provisions of this part become applicable upon the date that
the employer's LCA is certified pursuant to Sec. Sec. 655.740 and
655.750, or upon the date employment commences pursuant to section
214(m) of the INA, whichever is earlier. The employer's submission and
signature on the LCA (whether Form ETA 9035 or Form ETA 9035E) each
constitutes the employer's representation that the statements on the LCA
are accurate and its acknowledgment and acceptance of the obligations of
the program. The employer's acceptance of these obligations is re-
affirmed by the
[[Page 465]]
employer's submission of the petition (Form I-129) to the DHS, supported
by the LCA. See 8 CFR 214.2(h)(4)(iii)(B)(2), which specifies that the
employer will comply with the terms of the LCA for the duration of the
H-1B nonimmigrant's authorized period of stay. If the period of
employment specified in the LCA expires or the employer withdraws the
application in accordance with Sec. 655.750(b), the provisions of this
part will no longer apply with respect to such application, except as
provided in Sec. 655.750(b)(3) and (4).
[65 FR 80233, Dec. 20, 2000, as amended at 66 FR 63302, Dec. 5, 2001; 69
FR 68229, Nov. 23, 2004]
Sec. 655.806 Who may file a complaint and how is it processed?
(a) Any aggrieved party, as defined in Sec. 655.715, may file a
complaint alleging a violation described in Sec. 655.805(a). The
procedures for filing a complaint by an aggrieved party and its
processing by the Administrator are set forth in this section. The
procedures for filing and processing information alleging violations
from persons or organizations that are not aggrieved parties are set
forth in Sec. 655.807. With regard to complaints filed by any aggrieved
person or organization--
(1) No particular form of complaint is required, except that the
complaint shall be written or, if oral, shall be reduced to writing by
the Wage and Hour Division official who receives the complaint.
(2) The complaint shall set forth sufficient facts for the
Administrator to determine whether there is reasonable cause to believe
that a violation as described in Sec. 655.805 has been committed, and
therefore that an investigation is warranted. This determination shall
be made within 10 days of the date that the complaint is received by a
Wage and Hour Division official. If the Administrator determines that
the complaint fails to present reasonable cause for an investigation,
the Administrator shall so notify the complainant, who may submit a new
complaint, with such additional information as may be necessary. No
hearing or appeal pursuant to this subpart shall be available where the
Administrator determines that an investigation on a complaint is not
warranted.
(3) If the Administrator determines that an investigation on a
complaint is warranted, the complaint shall be accepted for filing; an
investigation shall be conducted and a determination issued within 30
calendar days of the date of filing. The time for the investigation may
be increased with the consent of the employer and the complainant, or
if, for reasons outside of the control of the Administrator, the
Administrator needs additional time to obtain information needed from
the employer or other sources to determine whether a violation has
occurred. No hearing or appeal pursuant to this subpart shall be
available regarding the Administrator's determination that an
investigation on a complaint is warranted.
(4) In the event that the Administrator seeks a prevailing wage
determination from ETA pursuant to Sec. 655.731(d), or advice as to
prevailing working conditions from ETA pursuant to Sec. 655.732(c)(2),
the 30-day investigation period shall be suspended from the date of the
Administrator's request to the date of the Administrator's receipt of
the wage determination (or, in the event that the employer challenges
the wage determination through the Employment Service complaint system,
to the date of the completion of such complaint process).
(5) A complaint must be filed not later than 12 months after the
latest date on which the alleged violation(s) were committed, which
would be the date on which the employer allegedly failed to perform an
action or fulfill a condition specified in the LCA, or the date on which
the employer, through its action or inaction, allegedly demonstrated a
misrepresentation of a material fact in the LCA. This jurisdictional bar
does not affect the scope of the remedies which may be assessed by the
Administrator. Where, for example, a complaint is timely filed, back
wages may be assessed for a period prior to one year before the filing
of a complaint.
(6) A complaint may be submitted to any local Wage and Hour Division
office. The addresses of such offices are found in local telephone
directories,
[[Page 466]]
and on the Department's informational site on the Internet at http://
www.dol.gov/dol/esa/public/contacts/whd/america2.htm. The office or
person receiving such a complaint shall refer it to the office of the
Wage and Hour Division administering the area in which the reported
violation is alleged to have occurred.
(b) When an investigation has been conducted, the Administrator
shall, pursuant to Sec. 655.815, issue a written determination as
described in Sec. 655.805(a).
[65 FR 80234, Dec. 20, 2000]
Sec. 655.807 How may someone who is not an ``aggrieved party'' allege
violations, and how will those allegations be processed?
(a) Persons who are not aggrieved parties may submit information
concerning possible violations of the provisions described in Sec.
655.805(a)(1) through (4) and (a)(7) through (9). No particular form is
required to submit the information, except that the information shall be
submitted in writing or, if oral, shall be reduced to writing by the
Wage and Hour Division official who receives the information. An
optional form shall be available to be used in setting forth the
information. The information provided shall include:
(1) The identity of the person submitting the information and the
person's relationship, if any, to the employer or other information
concerning the person's basis for having knowledge of the employer's
employment practices or its compliance with the requirements of this
subpart I and subpart H of this part; and
(2) A description of the possible violation, including a description
of the facts known to the person submitting the information, in
sufficient detail for the Secretary to determine if there is reasonable
cause to believe that the employer has committed a willful violation of
the provisions described in Sec. 655.805(a)(1), (2), (3), (4), (7),
(8), or (9).
(b) The Administrator may interview the person submitting the
information as appropriate to obtain further information to determine
whether the requirements of this section are met. In addition, the
person submitting information under this section shall be informed that
his or her identity will not be disclosed to the employer without his or
her permission.
(c) Information concerning possible violations must be submitted not
later than 12 months after the latest date on which the alleged
violation(s) were committed. The 12-month period shall be applied in the
manner described in Sec. 655.806(a)(5).
(d) Upon receipt of the information, the Administrator shall
promptly review the information submitted and determine:
(1) Does the source likely possess knowledge of the employer's
practices or employment conditions or the employer's compliance with the
requirements of subpart H of this part?
(2) Has the source provided specific credible information alleging a
violation of the requirements of the conditions described in Sec.
655.805(a)(1), (2), (3), (4), (7), (8), or (9)?
(3) Does the information in support of the allegations appear to
provide reasonable cause to believe that the employer has committed a
violation of the provisions described in Sec. 655.805(a)(1), (2), (3),
(4), (7), (8), or (9), and that
(i) The alleged violation is willful?
(ii) The employer has engaged in a pattern or practice of
violations? or
(iii) The employer has committed substantial violations, affecting
multiple employees?
(e) ``Information'' within the meaning of this section does not
include information from an officer or employee of the Department of
Labor unless it was obtained in the course of a lawful investigation,
and does not include information submitted by the employer to the DHS or
the Secretary in securing the employment of an H-1B nonimmigrant.
(f)(1) Except as provided in paragraph (f)(2) of this section, where
the Administrator has received information from a source other than an
aggrieved party which satisfies all of the requirements of paragraphs
(a) through (d) of this section, or where the Administrator or another
agency of the Department obtains such information in a lawful
investigation under this or any other section of the INA or any other
Act, the Administrator (by mail or facsimile
[[Page 467]]
transmission) shall promptly notify the employer that the information
has been received, describe the nature of the allegation in sufficient
detail to permit the employer to respond, and request that the employer
respond to the allegation within 10 days of its receipt of the
notification. The Administrator shall not identify the source or
information which would reveal the identity of the source without his or
her permission.
(2) The Administrator may dispense with notification to the employer
of the alleged violations if the Administrator determines that such
notification might interfere with an effort to secure the employer's
compliance. This determination shall not be subject to review in any
administrative proceeding and shall not be subject to judicial review.
(g) After receipt of any response to the allegations provided by the
employer, the Administrator will promptly review all of the information
received and determine whether the allegations should be referred to the
Secretary for a determination whether an investigation should be
commenced by the Administrator.
(h) If the Administrator refers the allegations to the Secretary,
the Secretary shall make a determination as to whether to authorize an
investigation under this section.
(1) No investigation shall be commenced unless the Secretary (or the
Deputy Secretary or other Acting Secretary in the absence or disability)
personally authorizes the investigation and certifies--
(i) That the information provided under paragraph (a) of this
section or obtained pursuant to a lawful investigation by the Department
of Labor provides reasonable cause to believe that the employer has
committed a violation of the provisions described in Sec.
655.805(a)(1), (2), (3), (4), (7), (8), or (9);
(ii) That there is reasonable cause to believe the alleged
violations are willful, that the employer has engaged in a pattern or
practice of such violations, or that the employer has committed
substantial violations, affecting multiple employees; and
(iii) That the other requirements of paragraphs (a) through (d) of
this section have been met.
(2) No hearing shall be available from a decision by the
Administrator declining to refer allegations addressed by this section
to the Secretary, and none shall be available from a decision by the
Secretary certifying or declining to certify that an investigation is
warranted.
(i) If the Secretary issues a certification, an investigation shall
be conducted and a determination issued within 30 days after the
certification is received by the local Wage and Hour office undertaking
the investigation. The time for the investigation may be increased upon
the agreement of the employer and the Administrator or, if for reasons
outside of the control of the Administrator, additional time is
necessary to obtain information needed from the employer or other
sources to determine whether a violation has occurred.
(j) In the event that the Administrator seeks a prevailing wage
determination from ETA pursuant to Sec. 655.731(d), or advice as to
prevailing working conditions from ETA pursuant to Sec. 655.732(c)(2),
the 30-day investigation period shall be suspended from the date of the
Administrator's request to the date of the Administrator's receipt of
the wage determination (or, in the event that the employer challenges
the wage determination through the Employment Service complaint system,
to the date of the completion of such complaint process).
(k) Following the investigation, the Administrator shall issue a
determination in accordance with to Sec. 655.815.
(l) This section shall expire on September 30, 2003 unless section
212(n)(2)(G) of the INA is extended by future legislative action. Absent
such extension, no investigation shall be certified by the Secretary
under this section after that date; however, any investigation certified
on or before September 30, 2003 may be completed.
[65 FR 80234, Dec. 20, 2000]
[[Page 468]]
Sec. 655.808 Under what circumstances may random investigations be
conducted?
(a) The Administrator may conduct random investigations of an
employer during a five-year period beginning with the date of any of the
following findings, provided such date is on or after October 21, 1998:
(1) A finding by the Secretary that the employer willfully violated
any of the provisions described in Sec. 655.805(a)(1) through (9);
(2) A finding by the Secretary that the employer willfully
misrepresented material fact(s) in a labor condition application filed
pursuant to Sec. 655.730; or
(3) A finding by the Attorney General that the employer willfully
failed to meet the condition of section 212(n)(1)(G)(i)(II) of the INA
(pertaining to an offer of employment to an equally or better qualified
U.S. worker).
(b) A finding within the meaning of this section is a final,
unappealed decision of the agency. See Sec. Sec. 655.520(a),
655.845(c), and 655.855(b).
(c) An investigation pursuant to this section may be made at any
time the Administrator, in the exercise of discretion, considers
appropriate, without regard to whether the Administrator has reason to
believe a violation of the provisions of this subpart I and subpart H of
this part has been committed. Following an investigation, the
Administrator shall issue a determination in accordance with Sec.
655.815.
[65 FR 80236, Dec. 20, 2000]
Sec. 655.810 What remedies may be ordered if violations are found?
(a) Upon determining that an employer has failed to pay wages or
provide fringe benefits as required by Sec. 655.731 and Sec. 655.732,
the Administrator shall assess and oversee the payment of back wages or
fringe benefits to any H-1B nonimmigrant who has not been paid or
provided fringe benefits as required. The back wages or fringe benefits
shall be equal to the difference between the amount that should have
been paid and the amount that actually was paid to (or with respect to)
such nonimmigrant(s).
(b) Civil money penalties. The Administrator may assess civil money
penalties for violations as follows:
(1) An amount not to exceed $1,000 per violation for:
(i) A violation pertaining to strike/lockout (Sec. 655.733) or
displacement of U.S. workers (Sec. 655.738);
(ii) A substantial violation pertaining to notification (Sec.
655.734), labor condition application specificity (Sec. 655.730), or
recruitment of U.S. workers (Sec. 655.739);
(iii) A misrepresentation of material fact on the labor condition
application;
(iv) An early-termination penalty paid by the employee (Sec.
655.731(c)(10)(i));
(v) Payment by the employee of the additional $500/$1,000 filing fee
(Sec. 655.731(c)(10)(ii)); or
(vi) Violation of the requirements of the regulations in this
subpart I and subpart H of this part or the provisions regarding public
access (Sec. 655.760) where the violation impedes the ability of the
Administrator to determine whether a violation of sections 212(n) or (t)
of the INA has occurred or the ability of members of the public to have
information needed to file a complaint or information regarding alleged
violations of sections 212(n) or (t) of the INA;
(2) An amount not to exceed $5,000 per violation for:
(i) A willful failure pertaining to wages/working conditions
(Sec. Sec. 655.731, 655.732), strike/lockout, notification, labor
condition application specificity, displacement (including placement of
an H-1B nonimmigrant at a worksite where the other/secondary employer
displaces a U.S. worker), or recruitment;
(ii) A willful misrepresentation of a material fact on the labor
condition application; or
(iii) Discrimination against an employee (Sec. 655.801(a)); or
(3) An amount not to exceed $35,000 per violation where an employer
(whether or not the employer is an H-1B-dependent employer or willful
violator) displaced a U.S. worker employed by the employer in the period
beginning 90 days before and ending 90 days after the filing of an H-1B
petition in conjunction with any of the following violations:
[[Page 469]]
(i) A willful violation of any of the provisions described in Sec.
655.805(a)(2) through (9) pertaining to wages/working condition, strike/
lockout, notification, labor condition application specificity,
displacement, or recruitment; or
(ii) A willful misrepresentation of a material fact on the labor
condition application (Sec. 655.805(a)(1)).
(c) In determining the amount of the civil money penalty to be
assessed, the Administrator shall consider the type of violation
committed and other relevant factors. The factors which may be
considered include, but are not limited to, the following:
(1) Previous history of violation, or violations, by the employer
under the INA and this subpart I or subpart H of this part;
(2) The number of workers affected by the violation or violations;
(3) The gravity of the violation or violations;
(4) Efforts made by the employer in good faith to comply with the
provisions of 8 U.S.C. 1182(n) or (t) and this subparts H and I of this
part;
(5) The employer's explanation of the violation or violations;
(6) The employer's commitment to future compliance; and
(7) The extent to which the employer achieved a financial gain due
to the violation, or the potential financial loss, potential injury or
adverse effect with respect to other parties.
(d) Disqualification from approval of petitions. The Administrator
shall notify the DHS pursuant to Sec. 655.855 that the employer shall
be disqualified from approval of any petitions filed by, or on behalf
of, the employer pursuant to section 204 or section 214(c) of the INA
for the following periods:
(1) At least one year for violation(s) of any of the provisions
specified in paragraph (b)(1)(i) through (iii) of this section;
(2) At least two years for violation(s) of any of the provisions
specified in paragraph (b)(2) of this section; or
(3) At least three years, for violation(s) specified in paragraph
(b)(3) of this section.
(e) Other administrative remedies. (1) If the Administrator finds a
violation of the provisions specified in paragraph (b)(1)(iv) or (v) of
this section, the Administrator may issue an order requiring the
employer to return to the employee (or pay to the U.S. Treasury if the
employee cannot be located) any money paid by the employee in violation
of those provisions.
(2) If the Administrator finds a violation of the provisions
specified in paragraph (b)(1)(i) through (iii), (b)(2), or (b)(3) of
this section, the Administrator may impose such other administrative
remedies as the Administrator determines to be appropriate, including
but not limited to reinstatement of workers who were discriminated
against in violation of Sec. 655.805(a), reinstatement of displaced
U.S. workers, back wages to workers who have been displaced or whose
employment has been terminated in violation of these provisions, or
other appropriate legal or equitable remedies.
(f) The civil money penalties, back wages, and/or any other
remedy(ies) determined by the Administrator to be appropriate are
immediately due for payment or performance upon the assessment by the
Administrator, or upon the decision by an administrative law judge where
a hearing is timely requested, or upon the decision by the Secretary
where review is granted. The employer shall remit the amount of the
civil money penalty by certified check or money order made payable to
the order of ``Wage and Hour Division, Labor.'' The remittance shall be
delivered or mailed to the Wage and Hour Division office in the manner
directed in the Administrator's notice of determination. The payment or
performance of any other remedy prescribed by the Administrator shall
follow procedures established by the Administrator. Distribution of back
wages shall be administered in accordance with existing procedures
established by the Administrator.
(g) The Federal Civil Penalties Inflation Adjustment Act of 1990, as
amended (28 U.S.C. 2461 note), requires that inflationary adjustments to
civil money penalties in accordance with a specified cost-of-living
formula be made, by regulation, at least every four years. The
adjustments are to be based on changes in the Consumer Price Index for
all Urban Consumers (CPI-U) for the U.S. City Average for
[[Page 470]]
All Items. The adjusted amounts will be published in the Federal
Register. The amount of the penalty in a particular case will be based
on the amount of the penalty in effect at the time the violation occurs.
[65 FR 80236, Dec. 20, 2000, as amended at 69 FR 68229, Nov. 23, 2004]
Sec. 655.815 What are the requirements for the Administrator's
determination?
(a) The Administrator's determination, issued pursuant to Sec.
655.806, 655.807, or 655.808, shall be served on the complainant, the
employer, and other known interested parties by personal service or by
certified mail at the parties' last known addresses. Where service by
certified mail is not accepted by the party, the Administrator may
exercise discretion to serve the determination by regular mail.
(b) The Administrator shall file with the Chief Administrative Law
Judge, U.S. Department of Labor, a copy of the complaint and the
Administrator's determination.
(c) The Administrator's written determination required by Sec.
655.805 of this part shall:
(1) Set forth the determination of the Administrator and the reason
or reasons therefor, and in the case of a finding of violation(s) by an
employer, prescribe any remedies, including the amount of any back wages
assessed, the amount of any civil money penalties assessed and the
reason therefor, and/or any other remedies assessed.
(2) Inform the interested parties that they may request a hearing
pursuant to Sec. 655.820 of this part.
(3) Inform the interested parties that in the absence of a timely
request for a hearing, received by the Chief Administrative Law Judge
within 15 calendar days of the date of the determination, the
determination of the Administrator shall become final and not
appealable.
(4) Set forth the procedure for requesting a hearing, give the
addresses of the Chief Administrative Law Judge (with whom the request
must be filed) and the representative(s) of the Solicitor of labor (upon
whom copies of the request must be served).
(5) Where appropriate, inform the parties that, pursuant to Sec.
655.855, the Administrator shall notify ETA and the DHS of the
occurrence of a violation by the employer.
[59 FR 65672, 65676, Dec. 20, 1994, as amended at 65 FR 80237, Dec. 20,
2000]
Sec. 655.820 How is a hearing requested?
(a) Any interested party desiring review of a determination issued
under Sec. Sec. 655.805 and 655.815, including judicial review, shall
make a request for such an administrative hearing in writing to the
Chief Administrative Law Judge at the address stated in the notice of
determination. If such a request for an administrative hearing is timely
filed, the Administrator's determination shall be inoperative unless and
until the case is dismissed or the Administrative Law Judge issues an
order affirming the decision.
(b) Interested parties may request a hearing in the following
circumstances:
(1) The complainant or any other interested party may request a
hearing where the Administrator determines, after investigation, that
there is no basis for a finding that an employer has committed
violation(s). In such a proceeding, the party requesting the hearing
shall be the prosecuting party and the employer shall be the respondent;
the Administrator may intervene as a party or appear as amicus curiae at
any time in the proceeding, at the Administrator's discretion.
(2) The employer or any other interested party may request a hearing
where the Administrator determines, after investigation, that the
employer has committed violation(s). In such a proceeding, the
Administrator shall be the prosecuting party and the employer shall be
the respondent.
(c) No particular form is prescribed for any request for hearing
permitted by this section. However, any such request shall:
(1) Be dated;
(2) Be typewritten or legibly written;
(3) Specify the issue or issues stated in the notice of
determination giving rise to such request;
(4) State the specific reason or reasons why the party requesting
the
[[Page 471]]
hearing believes such determination is in error;
(5) Be signed by the party making the request or by an authorized
representative of such party; and
(6) Include the address at which such party or authorized
representative desires to receive further communications relating
thereto.
(d) The request for such hearing shall be received by the Chief
Administrative Law Judge, at the address stated in the Administrator's
notice of determination, no later than 15 calendar days after the date
of the determination. An interested party which fails to meet this 15-
day deadline for requesting a hearing may thereafter participate in the
proceedings only by consent of the administrative law judge, either
through intervention as a party pursuant to 29 CFR 18.10 (b) through (d)
or through participation as an amicus curiae pursuant to 29 CFR 18.12.
(e) The request may be filed in person, by facsimile transmission,
by certified or regular mail, or by courier service. For the requesting
party's protection, if the request is by mail, it should be by certified
mail. If the request is by facsimile transmission, the original of the
request, signed by the requestor or authorized representative, shall be
filed within ten days.
(f) Copies of the request for a hearing shall be sent by the
requestor to the Wage and Hour Division official who issued the
Administrator's notice of determination, to the representative(s) of the
Solicitor of Labor identified in the notice of determination, and to all
known interested parties.
[59 FR 65672, 65676, Dec. 20, 1994, as amended at 65 FR 80237, Dec. 20,
2000]
Sec. 655.825 What rules of practice apply to the hearing?
(a) Except as specifically provided in this subpart, and to the
extent they do not conflict with the provisions of this subpart, the
``Rules of Practice and Procedure for Administrative Hearings Before the
Office of Administrative Law Judges'' established by the Secretary at 29
CFR part 18 shall apply to administrative proceedings under this
subpart.
(b) As provided in the Administrative Procedure Act, 5 U.S.C. 556,
any oral or documentary evidence may be received in proceedings under
this part. The Federal Rules of Evidence and subpart B of the Rules of
Practice and Procedure for Administrative Hearings Before the Office of
Administrative Law Judges (29 CFR part 18, subpart B) shall not apply,
but principles designed to ensure production of relevant and probative
evidence shall guide the admission of evidence. The administrative law
judge may exclude evidence which is immaterial, irrelevant, or unduly
repetitive.
Sec. 655.830 What rules apply to service of pleadings?
(a) Under this subpart, a party may serve any pleading or document
by regular mail. Service on a party is complete upon mailing to the last
known address. No additional time for filing or response is authorized
where service is by mail. In the interest of expeditious proceedings,
the administrative law judge may direct the parties to serve pleadings
or documents by a method other than regular mail.
(b) Two (2) copies of all pleadings and other documents in any
administrative law judge proceeding shall be served on the attorneys for
the Administrator. One copy shall be served on the Associate Solicitor,
Division of Fair Labor Standards, Office of the Solicitor, U.S.
Department of Labor, 200 Constitution Avenue NW., Room N-2716,
Washington, DC 20210, and one copy shall be served on the attorney
representing the Administrator in the proceeding.
(c) Time will be computed beginning with the day following the
action and includes the last day of the period unless it is a Saturday,
Sunday, or federally-observed holiday, in which case the time period
includes the next business day.
Sec. 655.835 How will the administrative law judge conduct the
proceeding?
(a) Upon receipt of a timely request for a hearing filed pursuant to
and in accordance with Sec. 655.820 of this part, the Chief
Administrative Law Judge shall promptly appoint an administrative law
judge to hear the case.
[[Page 472]]
(b) Within 7 calendar days following the assignment of the case, the
administrative law judge shall notify all interested parties of the
date, time and place of the hearing. All parties shall be given at least
fourteen calendar days notice of such hearing.
(c) The date of the hearing shall be not more than 60 calendar days
from the date of the Administrator's determination. Because of the time
constraints imposed by the INA, no request for postponement shall be
granted except for compelling reasons. Even where such reasons are
shown, no request for postponement of the hearing beyond the 60-day
deadline shall be granted except by consent of all the parties to the
proceeding.
(d) The administrative law judge may prescribe a schedule by which
the parties are permitted to file a prehearing brief or other written
statement of fact or law. Any such brief or statement shall be served
upon each other party in accordance with Sec. 655.830 of this part.
Posthearing briefs will not be permitted except at the request of the
administrative law judge. When permitted, any such brief shall be
limited to the issue or issues specified by the administrative law
judge, shall be due within the time prescribed by the administrative law
judge, and shall be served on each other party in accordance with Sec.
655.830 of this part.
Sec. 655.840 What are the requirements for a decision and order of the
administrative law judge?
(a) Within 60 calendar days after the date of the hearing, the
administrative law judge shall issue a decision. If any party desires
review of the decision, including judicial review, a petition for
Secretary's review thereof shall be filed as provided in Sec. 655.845
of this subpart. If a petition for review is filed, the decision of the
administrative law judge shall be inoperative unless and until the
Secretary issues an order affirming the decision, or, unless and until
30 calendar days have passed after the Secretary's receipt of the
petition for review and the Secretary has not issued notice to the
parties that the Secretary will review the administrative law judge's
decision.
(b) The decision of the administrative law judge shall include a
statement of findings and conclusions, with reasons and basis therefor,
upon each material issue presented on the record. The decision shall
also include an appropriate order which may affirm, deny, reverse, or
modify, in whole or in part, the determination of the Administrator; the
reason or reasons for such order shall be stated in the decision.
(c) In the event that the Administrator's determination of wage
violation(s) and computation of back wages are based upon a wage
determination obtained by the Administrator from ETA during the
investigation (pursuant to Sec. 655.731(d)) and the administrative law
judge determines that the Administrator's request was not warranted
(under the standards in Sec. 655.731(d)), the administrative law judge
shall remand the matter to the Administrator for further proceedings on
the existence of wage violations and/or the amount(s) of back wages
owed. If there is no such determination and remand by the administrative
law judge, the administrative law judge shall accept as final and
accurate the wage determination obtained from ETA or, in the event
either the employer or another interested party filed a timely complaint
through the Employment Service complaint system, the final wage
determination resulting from that process. See Sec. 655.731; see also
20 CFR 658.420 through 658.426. Under no circumstances shall the
administrative law judge determine the validity of the wage
determination or require submission into evidence or disclosure of
source data or the names of establishments contacted in developing the
survey which is the basis for the prevailing wage determination.
(d) The administrative law judge shall not render determinations as
to the legality of a regulatory provision or the constitutionality of a
statutory provision.
(e) The decision shall be served on all parties in person or by
certified or regular mail.
[59 FR 65672, 65676, Dec. 20, 1994, as amended at 65 FR 80237, Dec. 20,
2000]
[[Page 473]]
Sec. 655.845 What rules apply to appeal of the decision of the
administrative law judge?
(a) The Administrator or any interested party desiring review of the
decision and order of an administrative law judge, including judicial
review, shall petition the Department's Administrative Review Board
(Board) to review the decision and order. To be effective, such petition
shall be received by the Board within 30 calendar days of the date of
the decision and order. Copies of the petition shall be served on all
parties and on the administrative law judge.
(b) No particular form is prescribed for any petition for the
Board's review permitted by this subpart. However, any such petition
shall:
(1) Be dated;
(2) Be typewritten or legibly written;
(3) Specify the issue or issues stated in the administrative law
judge decision and order giving rise to such petition;
(4) State the specific reason or reasons why the party petitioning
for review believes such decision and order are in error;
(5) Be signed by the party filing the petition or by an authorized
representative of such party;
(6) Include the address at which such party or authorized
representative desires to receive further communications relating
thereto; and
(7) Attach copies of the administrative law judge's's decision and
order, and any other record documents which would assist the Board in
determining whether review is warranted.
(c) Whenever the Board determines to review the decision and order
of an administrative law judge, a notice of the Board's determination
shall be served upon the administrative law judge, upon the Office of
Administrative Law Judges, and upon all parties to the proceeding within
30 calendar days after the Board's receipt of the petition for review.
If the Board determines that it will review the decision and order, the
order shall be inoperative unless and until the Board issues an order
affirming the decision and order.
(d) Upon receipt of the Board's notice, the Office of Administrative
Law Judges shall within 15 calendar days forward the complete hearing
record to the Board.
(e) The Board's notice shall specify:
(1) The issue or issues to be reviewed;
(2) The form in which submissions shall be made by the parties
(e.g., briefs);
(3) The time within which such submissions shall be made.
(f) All documents submitted to the Board shall be filed with the
Administrative Review Board, Room S-4309, U.S. Department of Labor,
Washington, DC 20210. An original and two copies of all documents shall
be filed. Documents are not deemed filed with the Board until actually
received by the Board. All documents, including documents filed by mail,
shall be received by the Board either on or before the due date.
(g) Copies of all documents filed with the Board shall be served
upon all other parties involved in the proceeding. Service upon the
Administrator shall be in accordance with Sec. 655.830(b).
(h) The Board's final decision shall be issued within 180 calendar
days from the date of the notice of intent to review. The Board's
decision shall be served upon all parties and the administrative law
judge.
(i) Upon issuance of the Board's decision, the Board shall transmit
the entire record to the Chief Administrative Law Judge for custody
pursuant to Sec. 655.850.
[65 FR 80237, Dec. 20, 2000]
Sec. 655.850 Who has custody of the administrative record?
The official record of every completed administrative hearing
procedure provided by subparts H and I of this part shall be maintained
and filed under the custody and control of the Chief Administrative Law
Judge. Upon receipt of a complaint seeking review of the final agency
action in a United States District Court, the Chief Administrative Law
Judge shall certify the official record and shall transmit such record
to the clerk of the court.
[[Page 474]]
Sec. 655.855 What notice shall be given to the Employment and Training
Administration and the DHS of the decision regarding
violations?
(a) The Administrator shall notify the DHS and ETA of the final
determination of any violation requiring that the DHS not approve
petitions filed by an employer. The Administrator's notification will
address the type of violation committed by the employer and the
appropriate statutory period for disqualification of the employer from
approval of petitions. Violations requiring notification to the DHS are
identified in Sec. 655.810(f).
(b) The Administrator shall notify the DHS and ETA upon the earliest
of the following events:
(1) Where the Administrator determines that there is a basis for a
finding of violation by an employer, and no timely request for hearing
is made pursuant to Sec. 655.820; or
(2) Where, after a hearing, the administrative law judge issues a
decision and order finding a violation by an employer, and no timely
petition for review is filed with the Department's Administrative Review
Board (Board) pursuant to Sec. 655.845; or
(3) Where a timely petition for review is filed from an
administrative law judge's decision finding a violation and the Board
either declines within 30 days to entertain the appeal, pursuant to
Sec. 655.845(c), or the Board reviews and affirms the administrative
law judge's determination; or
(4) Where the administrative law judge finds that there was no
violation by an employer, and the Board, upon review, issues a decision
pursuant to Sec. 655.845, holding that a violation was committed by an
employer.
(c) The DHS, upon receipt of notification from the Administrator
pursuant to paragraph (a) of this section, shall not approve petitions
filed with respect to that employer under sections 204 or 214(c) of the
INA (8 U.S.C. 1154 and 1184(c)) for nonimmigrants to be employed by the
employer, for the period of time provided by the Act and described in
Sec. 655.810(f).
(d) ETA, upon receipt of the Administrator's notice pursuant to
paragraph (a) of this section, shall invalidate the employer's labor
condition application(s) under this subpart I and subpart H of this
part, and shall not accept for filing any application or attestation
submitted by the employer under 20 CFR part 656 or subparts A, B, C, D,
E, H, or I of this part, for the same calendar period as specified by
the DHS.
[65 FR 80238, Dec. 20, 2000]
Subparts J-K [Reserved]
Subpart L_What Requirements Must a Facility Meet to Employ H 1C
Nonimmigrant Workers as Registered Nurses?
Source: 65 FR 51149, Aug. 22, 2000, unless otherwise noted.
Editorial Note: Nomenclature changes to subpart L of part 655 appear
at 75 FR 10403, Mar. 5, 2010.
Sec. 655.1100 What are the purposes, procedures and applicability of
these regulations in subparts L and M of this part?
(a) Purpose. The Immigration and Nationality Act (INA), as amended
by the Nursing Relief for Disadvantaged Areas Act of 1999, establishes
the H-1C nonimmigrant visa program to provide qualified nursing
professionals for narrowly defined health professional shortage areas.
Subpart L of this part sets forth the procedure by which facilities
seeking to use nonimmigrant registered nurses must submit attestations
to the Department of Labor demonstrating their eligibility to
participate as facilities, their wages and working conditions for
nurses, their efforts to recruit and retain United States workers as
registered nurses, the absence of a strike/lockout or layoff,
notification of nurses, and the numbers of and worksites where H-1C
nurses will be employed. Subpart M of this part sets forth complaint,
investigation, and penalty provisions with respect to such attestations.
(b) Procedure. The INA establishes a procedure for facilities to
follow in seeking admission to the United States for, or use of,
nonimmigrant nurses under H-1C visas. The procedure is designed to
reduce reliance on nonimmigrant nurses in the future, and
[[Page 475]]
calls for the facility to attest, and be able to demonstrate in the
course of an investigation, that it is taking timely and significant
steps to develop, recruit, and retain U.S. nurses. Subparts L and M of
this part set forth the specific requirements of those procedures.
(c) Applicability. (1) Subparts L and M of this part apply to all
facilities that seek the temporary admission or use of H-1C
nonimmigrants as registered nurses.
(2) During the period that the provisions of Appendix 1603.D.4 of
Annex 1603 of the North American Free Trade Agreement (NAFTA) apply,
subparts L and M of this part shall apply to the entry of a nonimmigrant
who is a citizen of Mexico under the provisions of section D of Annex
1603 of NAFTA. Therefore, the references in this part to ``H-1C nurse''
apply to such nonimmigrants who are classified by USCIS as ``TN.''
Sec. 655.1101 What are the responsibilities of the government agencies
and the facilities that participate in the H-1C program?
(a) Federal agencies' responsibilities. The Department of Labor
(DOL), Department of Homeland Security, and Department of State are
involved in the H-1C visa process. Within DOL, the Employment and
Training Administration (ETA) and the Wage and Hour Division have
responsibility for different aspects of the process.
(b) Facility's attestation responsibilities. Each facility seeking
one or more H-1C nurse(s) must, as the first step, submit an attestation
on Form ETA 9081, as described in Sec. 655.1110 of this part, to the
U.S. Department of Labor, Employment and Training Administration, Office
of Foreign Labor Certification, Chicago National Processing Center, 536
South Clark Street, Chicago, IL 60605-1509. If the attestation satisfies
the criteria stated in Sec. 655.1130 and includes the supporting
information required by Sec. 655.1110 and by Sec. 655.1114, ETA shall
accept the attestation form for filing, and return the accepted
attestation to the facility.
(c) H-1C petitions. Upon ETA's acceptance of the attestation, the
facility may then file petitions with U.S. Citizenship and Immigration
Services (USCIS) for the admission of, change to, or extension of status
of H-1C nurses. The facility must attach a copy of the accepted
attestation (Form ETA 9081) to the petition or the request for
adjustment or extension of status, filed with USCIS. At the same time
that the facility files an H-1C petition with USCIS, it must also send a
copy of the petition to the Employment and Training Administration,
Administrator, Office of Foreign Labor Certification, 200 Constitution
Avenue, NW., Room C-4312, Washington, DC 20210. The facility must also
send to this same ETA address a copy of the USCIS petition approval
notice within 5 days after it is received from USCIS.
(d) Visa issuance. USCIS makes determinations, in adjudicating an H-
1C petition, whether the foreign worker possesses the required
qualifications and credentials to be employed as an H-1C nurse. The
Department of State is subsequently responsible for determining visa
eligibility.
(e) Board of Alien Labor Certification Appeals (BALCA) review of
Attestations accepted and not accepted for filing. Any interested party
may seek review by the BALCA of an Attestation accepted or not accepted
for filing by ETA. However, such appeals are limited to ETA actions on
the three Attestation matters on which ETA conducts a substantive review
(i.e., the employer's eligibility as a facility; the facility's
attestation to alternative timely and significant steps; and the
facility's assertion that taking a second timely and significant step
would not be reasonable).
(f) Complaints. Complaints concerning misrepresentation of material
fact(s) in the Attestation or failure of the facility to carry out the
terms of the Attestation may be filed with the Wage and Hour Division of
DOL, according to the procedures set forth in subpart M of this part.
The Wage and Hour Administrator shall investigate and, where
appropriate, after an opportunity for a hearing, assess remedies and
penalties. Subpart M of this part also provides that interested parties
may obtain an administrative law judge hearing and may seek review of
the administrative law judge's decision
[[Page 476]]
at the Department's Administrative Review Board.
[75 FR 10403, Mar. 5, 2010]
Sec. 655.1102 What are the definitions of terms that are used in these
regulations?
For the purposes of subparts L and M of this part:
Accepted for filing means that the Attestation and any supporting
documentation submitted by the facility have been received by the
Employment and Training Administration of the Department of Labor and
have been found to be complete and acceptable for purposes of
Attestation requirements in Sec. Sec. 655.1110 through 655.1118.
Administrative Law Judge means an official appointed under 5 U.S.C.
3105.
Administrator means the Administrator of the Wage and Hour Division,
Employment Standards Administration, Department of Labor, and such
authorized representatives as may be designated to perform any of the
functions of the Administrator under subparts L and M of this part.
Administrator, Office of Foreign Labor Certification (OFLC) means
the primary official of the Office of Foreign Labor Certification (OFLC
Administrator), or the OFLC Administrator's designee.
Aggrieved party means a person or entity whose operations or
interests are adversely affected by the employer's alleged
misrepresentation of material fact(s) or non-compliance with the
Attestation and includes, but is not limited to:
(1) A worker whose job, wages, or working conditions are adversely
affected by the facility's alleged misrepresentation of material fact(s)
or non-compliance with the attestation;
(2) A bargaining representative for workers whose jobs, wages, or
working conditions are adversely affected by the facility's alleged
misrepresentation of material fact(s) or non-compliance with the
attestation;
(3) A competitor adversely affected by the facility's alleged
misrepresentation of material fact(s) or non-compliance with the
attestation; and
(4) A government agency which has a program that is impacted by the
facility's alleged misrepresentation of material fact(s) or non-
compliance with the attestation.
Attorney General means the chief official of the U.S. Department of
Justice or the Attorney General's designee.
Board of Alien Labor Certification Appeals (BALCA) means a panel of
one or more administrative law judges who serve on the permanent Board
of Alien Labor Certification Appeals established by 20 CFR part 656.
BALCA consists of administrative law judges assigned to the Department
of Labor and designated by the Chief Administrative Law Judge to be
members of the Board of Alien Labor Certification Appeals.
Certifying Officer means a Department of Labor official, or such
official's designee, who makes determinations about whether or not H-1C
attestations are acceptable for certification.
Chief Administrative Law Judge means the chief official of the
Office of the Administrative Law Judges of the Department of Labor or
the Chief Administrative Law Judge's designee.
Date of filing means the date an Attestation is ``accepted for
filing'' by ETA.
Department and DOL mean the United States Department of Labor.
Division means the Wage and Hour Division of the Employment
Standards Administration, DOL.
Employed or employment means the employment relationship as
determined under the common law, except that a facility which files a
petition on behalf of an H-1C nonimmigrant is deemed to be the employer
of that H-1C nonimmigrant without the necessity of the application of
the common law test. Under the common law, the key determinant is the
putative employer's right to control the means and manner in which the
work is performed. Under the common law, ``no shorthand formula or magic
phrase * * * can be applied to find the answer * * *. [A]ll of the
incidents of the relationship must be assessed and weighed with no one
factor being decisive.'' NLRB v. United Ins. Co. of America, 390 U.S.
254, 258 (1968). The determination should consider the following factors
and any other relevant factors that would indicate the existence of an
employment relationship:
[[Page 477]]
(1) The firm has the right to control when, where, and how the
worker performs the job;
(2) The work does not require a high level of skill or expertise;
(3) The firm rather than the worker furnishes the tools, materials,
and equipment;
(4) The work is performed on the premises of the firm or the client;
(5) There is a continuing relationship between the worker and the
firm;
(6) The firm has the right to assign additional projects to the
worker;
(7) The firm sets the hours of work and the duration of the job;
(8) The worker is paid by the hour, week, month or an annual salary,
rather than for the agreed cost of performing a particular job;
(9) The worker does not hire or pay assistants;
(10) The work performed by the worker is part of the regular
business (including governmental, educational and nonprofit operations)
of the firm;
(11) The firm is itself in business;
(12) The worker is not engaged in his or her own distinct occupation
or business;
(13) The firm provides the worker with benefits such as insurance,
leave, or workers' compensation;
(14) The worker is considered an employee of the firm for tax
purposes (i.e., the entity withholds federal, state, and Social Security
taxes);
(15) The firm can discharge the worker; and
(16) The worker and the firm believe that they are creating an
employer-employee relationship.
Employment and Training Administration (ETA) means the agency within
the Department of Labor (DOL) which includes the Office of Foreign Labor
Certification (OFLC).
Facility means a ``subsection (d) hospital'' (as defined in section
1886(d)(1)(B) of the Social Security Act (42 U.S.C. 1395ww(d)(1)(B))
that meets the following requirements:
(1) As of March 31, 1997, the hospital was located in a health
professional shortage area (as defined in section 332 of the Public
Health Service Act (42 U.S.C. 245e)); and
(2) Based on its settled cost report filed under Title XVIII of the
Social Security Act (42 U.S.C. 1395 et seq.) for its cost reporting
period beginning during fiscal year 1994--
(i) The hospital has not less than 190 licensed acute care beds;
(ii) The number of the hospital's inpatient days for such period
which were made up of patients who (for such days) were entitled to
benefits under part A of such title is not less than 35 percent of the
total number of such hospital's acute care inpatient days for such
period; and
(iii) The number of the hospital's inpatient days for such period
which were made up of patients who (for such days) were eligible for
medical assistance under a State plan approved under Title XIX of the
Social Security Act, is not less than 28 percent of the total number of
such hospital's acute care inpatient days for such period.
(3) The requirements of paragraph (2) of this definition shall not
apply to a facility in Guam, the Commonwealth of the Northern Mariana
Islands, or the Virgin Islands.
Full-time employment means work where the nurse is regularly
scheduled to work 40 hours or more per week, unless the facility
documents that it is common practice for the occupation at the facility
or for the occupation in the geographic area for full-time nurses to
work fewer hours per week.
Geographic area means the area within normal commuting distance of
the place (address) of the intended worksite. If the geographic area
does not include a sufficient number of facilities to make a prevailing
wage determination, the term ``geographic area'' shall be expanded with
respect to the attesting facility to include a sufficient number of
facilities to permit a prevailing wage determination to be made. If the
place of the intended worksite is within a Metropolitan Statistical Area
(MSA) or Primary Metropolitan Statistical Area (PMSA), any place within
the MSA or PMSA will be deemed to be within normal commuting distance of
the place of intended employment.
H-1C nurse means any nonimmigrant alien admitted to the United
States to perform services as a nurse under section 101(a)(15)(H)(i)(c)
of the Act (8 U.S.C. 1101(a)(15)(H)(i)(c)).
[[Page 478]]
INA means the Immigration and Nationality Act, as amended, 8
U.S.C. 1101 et seq.
Lockout means a labor dispute involving a work stoppage in which an
employer withholds work from its employees in order to gain a concession
from them.
Nurse means a person who is or will be authorized by a State Board
of Nursing to engage in registered nursing practice in a State or U.S.
territory or possession at a facility which provides health care
services. A staff nurse means a nurse who provides nursing care directly
to patients. In order to qualify under this definition of ``nurse'' the
alien must:
(1) Have obtained a full and unrestricted license to practice
nursing in the country where the alien obtained nursing education, or
have received nursing education in the United States;
(2) Have passed the examination given by the Commission on Graduates
for Foreign Nursing Schools (CGFNS), or have obtained a full and
unrestricted (permanent) license to practice as a registered nurse in
the state of intended employment, or have obtained a full and
unrestricted (permanent) license in any state or territory of the United
States and received temporary authorization to practice as a registered
nurse in the state of intended employment; and,
(3) Be fully qualified and eligible under the laws (including such
temporary or interim licensing requirements which authorize the nurse to
be employed) governing the place of intended employment to practice as a
registered nurse immediately upon admission to the United States, and be
authorized under such laws to be employed by the employer. For purposes
of this paragraph, the temporary or interim licensing may be obtained
immediately after the alien enters the United States and registers to
take the first available examination for permanent licensure.
Office of Foreign Labor Certification (OFLC) means the
organizational component within the ETA that provides national
leadership and policy guidance and develops regulations and procedures
to carry out the responsibilities of the Secretary of Labor under the
INA concerning foreign workers seeking admission to the United States.
Prevailing wage means the weighted average wage paid to similarly
employed registered nurses within the geographic area.
Secretary means the Secretary of Labor or the Secretary's designee.
Similarly employed means employed by the same type of facility
(acute care or long-term care) and working under like conditions, such
as the same shift, on the same days of the week, and in the same
specialty area.
State means one of the 50 States, the District of Columbia, Puerto
Rico, the U.S. Virgin Islands, and Guam.
Strike means a labor dispute in which employees engage in a
concerted stoppage of work (including stoppage by reason of the
expiration of a collective-bargaining agreement) or engage in any
concerted slowdown or other concerted interruption of operations.
United States (U.S.) means the continental U.S., Alaska, Hawaii, the
Commonwealth of Puerto Rico, and the territories of Guam, the Virgin
Islands, and the Commonwealth of the Northern Mariana Islands.
U.S. Citizenship and Immigration Services (USCIS) means the bureau
within the Department of Homeland Security that makes determinations
under the INA on whether to approve petitions seeking classification
and/or admission of nonimmigrant nurses under the H-1C program.
United States (U.S.) nurse means any nurse who: is a U.S. citizen;
is a U.S. national; is lawfully admitted for permanent residence; is
admitted as a refugee under 8 U.S.C. 1157; or is granted asylum under 8
U.S.C. 1158.
Worksite means the location where the nurse is involved in the
practice of nursing.
[65 FR 51149, Aug. 22, 2000, as amended at 73 FR 78068, Dec. 19, 2008;
75 FR 10404, Mar. 5, 2010]
Sec. 655.1110 What requirements are imposed in the filing of an
attestation?
(a) Who may file Attestations?
(1) Any hospital which meets the definition of facility in
Sec. Sec. 655.1102 and 655.1111 may file an Attestation.
[[Page 479]]
(2) ETA shall determine the hospital's eligibility as a facility
through a review of this attestation element on the first Attestation
filed by the hospital. ETA's determination on this point is subject to a
hearing before the BALCA upon the request of any interested party. The
BALCA proceeding shall be limited to the point.
(3) Upon the hospital's filing of a second or subsequent
Attestation, its eligibility as a facility shall be controlled by the
determination made on this point in the ETA review (and BALCA
proceeding, if any) of the hospital's first Attestation.
(b) Where and when should attestations be submitted?
(1) Attestations shall be submitted, by U.S. mail or private
carrier, to ETA at the following address: U.S. Department of Labor,
Employment and Training Administration, Office of Foreign Labor
Certification, Chicago National Processing Center, 536 South Clark
Street, Chicago, IL 60605-1509.
(2) Attestations shall be reviewed and accepted for filing or
rejected by ETA within 30 calendar days of the date they are received by
ETA. Therefore, it is recommended that attestations be submitted to ETA
at least 35 calendar days prior to the planned date for filing an H-1C
visa petition with USCIS.
(c) What shall be submitted?
(1) Form ETA 9081 and required supporting documentation, as
described in paragraphs (c)(1)(i) through (iv) of this section.
(i) A completed and dated original Form ETA 9081, containing the
required attestation elements and the original signature of the chief
executive officer of the facility, shall be submitted, along with one
copy of the completed, signed, and dated Form ETA 9081. Copies of the
form and instructions are available at the address listed in paragraph
(b) of this section.
(ii) If the Attestation is the first filed by the hospital, it shall
be accompanied by copies of pages from the hospital's Form HCFA 2552
filed with the Department of Health and Human Services (pursuant to
title XVIII of the Social Security Act) for its 1994 cost reporting
period, showing the number of its acute care beds and the percentages of
Medicaid and Medicare reimbursed acute care inpatient days (i.e., Form
HCFA-2552-92, Worksheet S-3, Part I; Worksheet S, Parts I and II).
(iii) If the facility attests that it will take one or more timely
and significant steps other than the steps identified on Form ETA 9081,
then the facility must submit (in duplicate) an explanation of the
proposed step(s) and an explanation of how the proposed step(s) is/are
of comparable significance to those set forth on the Form and in Sec.
655.1114. (See Sec. 655.1114(b)(2)(v).)
(iv) If the facility attests that taking more than one timely and
significant step is unreasonable, then the facility must submit (in
duplicate) an explanation of this attestation. (See Sec. 655.1114(c).)
(2) Filing fee of $250 per Attestation. Payment must be in the form
of a check or money order, payable to the ``U.S. Department of Labor.''
Remittances must be drawn on a bank or other financial institution
located in the U.S. and be payable in U.S. currency.
(3) Copies of H-1C petitions and USCIS approval notices. After ETA
has approved the attestation used by the facility to support any H-1C
petition, the facility must send copies of each H-1C petition and USCIS
approval notice on such petition to Employment and Training
Administration, Administrator, Office of Foreign Labor Certification,
200 Constitution Avenue, NW., Room C-4312, Washington, DC 20210.
(d) Attestation elements. The attestation elements referenced in
paragraph (c)(1) of this section are mandated by section 212(m)(2)(A) of
the INA (8 U.S.C. 1182(m)(2)(A)). Section 212(m)(2)(A) requires a
prospective employer of H-1C nurses to attest to the following:
(1) That it qualifies as a facility (See Sec. 655.1111);
(2) That employment of H-1C nurses will not adversely affect the
wages or working conditions of similarly employed nurses (See Sec.
655.1112);
(3) That the facility will pay the H-1C nurse the facility wage rate
(See Sec. 655.1113);
(4) That the facility has taken, and is taking, timely and
significant steps to recruit and retain U.S. nurses (See Sec.
655.1114);
[[Page 480]]
(5) That there is not a strike or lockout at the facility, that the
employment of H-1C nurses is not intended or designed to influence an
election for a bargaining representative for RNs at the facility, and
that the facility did not lay off and will not lay off a registered
nurse employed by the facility 90 days before and after the date of
filing a visa petition (See Sec. 655.1115);
(6) That the facility will notify its workers and give a copy of the
Attestation to every nurse employed at the facility (See Sec.
655.1116);
(7) That no more than 33 percent of nurses employed by the facility
will be H-1C nonimmigrants (See Sec. 655.1117); and
(8) That the facility will not authorize H-1C nonimmigrants to work
at a worksite not under its control, and will not transfer an H-1C
nonimmigrant from one worksite to another (See Sec. 655.1118).
[75 FR 10404, Mar. 5, 2010]
Sec. 655.1111 Element I--What hospitals are eligible to participate in
the H-1C program?
(a) The first attestation element requires that the employer be a
``facility'' for purposes of the H-1C program, as defined in INA Section
212(m)(6), 8 U.S.C. 1182 (2)(m)(6).
(b) A qualifying facility under that section is a ``subpart (d)
hospital,'' as defined in Section 1886(d)(1)(B) of the Social Security
Act, 42 U.S.C. 1395ww(d)(1)(B), which:
(1) Was located in a health professional shortage area (HPSA), as
determined by the Department of Health and Human Services, on March 31,
1997. A list of HPSAs, as of March 31, 1997, was published in the
Federal Register on May 30, 1997 (62 FR 29395);
(2) Had at least 190 acute care beds, as determined by its settled
cost report, filed under Title XVIII of the Social Security Act, (42
U.S.C. 1395 et seq.), for its fiscal year 1994 cost reporting period
(i.e., Form HCFA-2552-92, Worksheet S-3, Part I, column 1, line 8);
(3) Had at least 35% of its acute care inpatient days reimbursed by
Medicare, as determined by its settled cost report, filed under Title
XVIII of the Social Security Act, for its fiscal year 1994 cost
reporting period (i.e., Form HCFA-2552-92, Worksheet S-3, Part I, column
4, line 8 as a percentage of column 6, line 8); and
(4) Had at least 28% of its acute care inpatient days reimbursed by
Medicaid, as determined by its settled cost report, filed under Title
XVIII of the Social Security Act, for its fiscal year 1994 cost
reporting period (i.e., Form HCFA-2552-92, Worksheet S-3, Part I, column
5, line 8 as a percentage of column 6, line 8).
(c) The Federal Register notice containing the controlling list of
HPSAs (62 FR 29395), can be found in federal depository libraries and on
the Government Printing Office Internet website at http://
www.access.gpo.gov.
(d) To make a determination about information in the settled cost
report, the employer shall examine its own Worksheet S-3, Part I,
Hospital and Hospital Health Care Complex Statistical Data, in the
Hospital and Hospital Health Care Complex Cost Report, Form HCFA 2552,
filed for the fiscal year 1994 cost reporting period.
(e) The facility must maintain a copy of the portions of Worksheet
S-3, Part I and Worksheet S, Parts I and II of HCFA Form 2552 which
substantiate the attestation of eligibility as a ``facility.'' One set
of copies of this document must be kept in the facility's public access
file. The full Form 2552 for fiscal year 1994 must be made available to
the Department upon request.
Sec. 655.1112 Element II--What does ``no adverse effect on wages and
working conditions'' mean?
(a) The second attestation element requires that the facility attest
that ``the employment of the alien will not adversely affect the wages
and working conditions of registered nurses similarly employed.''
(b) For purposes of this program, ``employment'' is full-time
employment as defined in Sec. 655.1102; part-time employment of H-1C
nurses is not authorized.
(c) Wages. To meet the requirement of no adverse effect on wages,
the facility must attest that it will pay each nurse employed by the
facility at least the prevailing wage for the occupation in the
geographic area. The facility
[[Page 481]]
must pay the higher of the wage required under this paragraph or the
wage required under Sec. 655.1113 (i.e., the third attestation element:
facility wage).
(1) Collectively bargained wage rates. Where wage rates for nurses
at a facility are the result of arms-length collective bargaining, those
rates shall be considered ``prevailing'' for that facility for the
purposes of this subpart.
(2) Determination of prevailing wage for H-1C purposes. In the
absence of collectively bargained wage rates, the National Processing
Center (NPC) having jurisdiction as determined by OFLC shall determine
the prevailing wage for similarly employed nurses in the geographic area
in accordance with administrative guidelines issued by ETA for
prevailing wage determination requests submitted on or after the
effective date of these regulations.
(i) Prior to the effective date of these regulations, the SWA having
jurisdiction over the area of intended employment shall continue to
receive and process prevailing wage determination requests in accordance
with the regulatory provisions and Department guidance in effect prior
to January 1, 2009. On or after the effective date of these regulations,
the NPC shall receive and process prevailing wage determination requests
in accordance with these regulations and with Department guidance. A
facility seeking to determine the prevailing wage must request a
prevailing wage determination from the NPC having jurisdiction for
providing the prevailing wage over the proposed area of intended
employment not more than 90 days prior to the date the attestation is
submitted to the Department. The NPC must enter its wage determination
on the form it uses and return the form with its endorsement to the
employer. Once a facility obtains a prevailing wage determination from
the NPC and files an attestation supported by that prevailing wage
determination, the facility shall be deemed to have accepted the
prevailing wage determination as accurate and appropriate (as to both
the occupational classification and the wage rate) and thereafter shall
not contest the legitimacy of that prevailing wage determination in an
investigation or enforcement action pursuant to subpart M of this part.
(ii) A facility may challenge the prevailing wage determination with
the NPC having provided such determination according to administrative
guidelines issued by ETA, but must obtain a final ruling prior to filing
an attestation.
(3) Total compensation package. The prevailing wage under this
paragraph relates to wages only. Employers are cautioned that each item
in the total compensation package for U.S. nurses, H-1C, and other
nurses employed by the facility must be the same within a given
facility, including such items as housing assistance and fringe
benefits.
(4) Documentation of pay and total compensation. The facility must
maintain in its public access file a copy of the prevailing wage, which
shall be either the collective bargaining agreement or the determination
that was obtained from the NPC. The facility must maintain payroll
records, as specified in Sec. 655.1113, and make such records available
to the Administrator in the event of an enforcement action pursuant to
subpart M.
(d) Working conditions. To meet the requirement of no adverse effect
on working conditions, the facility must attest that it will afford
equal treatment to U.S. and H-1C nurses with the same seniority, with
respect to such working conditions as the number and scheduling of hours
worked (including shifts, straight days, weekends); vacations; wards and
clinical rotations; and overall staffing-patient patterns. In the event
of an enforcement action pursuant to subpart M, the facility must
provide evidence substantiating compliance with this attestation.
[65 FR 51149, Aug. 22, 2000, as amended at 73 FR 78068, Dec. 19, 2008]
Sec. 655.1113 Element III--What does ``facility wage rate'' mean?
(a) The third attestation element requires that the facility
employing or seeking to employ the alien must attest that ``the alien
employed by the facility will be paid the wage rate for registered
nurses similarly employed by the facility.''
(b) The facility must pay the higher of the wage required in this
section (i.e.
[[Page 482]]
facility wage), or the wage required in Sec. 655.1112 (i.e., prevailing
wage).
(c) Wage obligations for H-1C nurses in nonproductive status--(1)
Circumstances where wages must be paid. If the H-1C nurse is not
performing work and is in a nonproductive status due to a decision by
the facility (e.g., because of lack of assigned work), because the nurse
has not yet received a license to work as a registered nurse, or any
other reason except as specified in paragraph (c)(2) of this section,
the facility is required to pay the salaried H-1C nurse the full amount
of the weekly salary, or to pay the hourly-wage H-1C nurse for a full-
time week (40 hours or such other number of hours as the facility can
demonstrate to be full-time employment) at the applicable wage rate.
(2) Circumstances where wages need not be paid. If an H-1C nurse
experiences a period of nonproductive status due to conditions unrelated
to employment which take the nurse away from his/her duties at his/her
voluntary request and convenience (e.g., touring the U.S., caring for
ill relative) or render the nonimmigrant unable to work (e.g., maternity
leave, automobile accident which temporarily incapacitates the
nonimmigrant), then the facility is not obligated to pay the required
wage rate during that period, provided that such period is not subject
to payment under the facility's benefit plan. Payment need not be made
if there has been a bona fide termination of the employment
relationship, as demonstrated by notification to USCIS that the
employment relationship has been terminated and the petition should be
canceled.
(d) Documentation. The facility must maintain documentation
substantiating compliance with this attestation element. The public
access file shall contain the facility pay schedule for nurses or a
description of the factors taken into consideration by the facility in
making compensation decisions for nurses, if either of these documents
exists. Categories of nursing positions not covered by the public access
file documentation shall not be covered by the Attestation, and,
therefore, such positions shall not be filled or held by H-1C nurses.
The facility must maintain the payroll records, as required under the
Fair Labor Standards Act at 29 CFR part 516, and make such records
available to the Administrator in the event of an enforcement action
pursuant to subpart M of this part.
Sec. 655.1114 Element IV--What are the timely and significant steps an
H-1C employer must take to recruit and retain U.S. nurses?
(a) The fourth attestation element requires that the facility attest
that it ``has taken and is taking timely and significant steps designed
to recruit and retain sufficient registered nurses who are United States
citizens or immigrants who are authorized to perform nursing services,
in order to remove as quickly as reasonably possible the dependence of
the facility on nonimmigrant registered nurses.'' The facility must take
at least two such steps, unless it demonstrates that taking a second
step is not reasonable. The steps described in this section shall not be
considered to be an exclusive list of the significant steps that may be
taken to meet the conditions of this section. Nothing in this subpart or
subpart M of this part shall require a facility to take more than one
step, if the facility can demonstrate that taking a second step is not
reasonable. A facility choosing to take timely and significant steps
other than those specifically described in this section must submit with
its Attestation a description of the step(s) it is proposing to take and
an explanation of how the proposed step(s) are of comparable timeliness
and significance to those described in this section (See Sec.
655.1110(c)(1)(iii)). A facility claiming that a second step is
unreasonable must submit an explanation of why such second step would be
unreasonable (See Sec. 655.1110(c)(1)(iv)).
(b) Descriptions of steps. Each of the actions described in this
section shall be considered a significant step reasonably designed to
recruit and retain U.S. nurses. A facility choosing any of these steps
shall designate such step on Form ETA 9081, thereby attesting that its
program(s) meets the regulatory requirements set forth for such step.
Section 212(m)(2)(E)(ii) of the INA provides that a violation shall be
found if a facility fails to meet a condition attested
[[Page 483]]
to. Thus, a facility shall be held responsible for all timely and
significant steps to which it attests.
(1) Statutory steps--(i) Operating a training program for registered
nurses at the facility or financing (or providing participation in) a
training program for registered nurses elsewhere. Training programs may
include either courses leading to a higher degree (i.e., beyond an
associate or a baccalaureate degree), or continuing education courses.
If the program includes courses leading to a higher degree, they must be
courses which are part of a program accepted for degree credit by a
college or university and accredited by a State Board of Nursing or a
State Board of Higher Education (or its equivalent), as appropriate. If
the program includes continuing education courses, they must be courses
which meet criteria established to qualify the nurses taking the courses
to earn continuing education units accepted by a State Board of Nursing
(or its equivalent). In either type of program, financing by the
facility (either directly or arranged through a third party) shall cover
the total costs of such training. The number of U.S. nurses for whom
such training actually is provided shall be no less than half of the
number of nurses who left the facility during the 12-month period prior
to submission of the Attestation. U.S. nurses to whom such training was
offered, but who rejected such training, may be counted towards those
provided training.
(ii) Providing career development programs and other methods of
facilitating health care workers to become registered nurses. This may
include programs leading directly to a degree in nursing, or career
ladder/career path programs which could ultimately lead to a degree in
nursing. Any such degree program shall be, at a minimum, through an
accredited community college (leading to an associate's degree), 4-year
college (a bachelor's degree), or diploma school, and the course of
study must be one accredited by a State Board of Nursing (or its
equivalent). The facility (either directly or arranged through a third
party) must cover the total costs of such programs. U.S. workers
participating in such programs must be working or have worked in health
care occupations or facilities. The number of U.S. workers for whom such
training is provided must be equal to no less than half the average
number of vacancies for nurses during the 12-month period prior to the
submission of the Attestation. U.S. nurses to whom such training was
offered, but who rejected such training, may be counted towards those
provided training.
(iii) Paying registered nurses wages at a rate higher than currently
being paid to registered nurses similarly employed in the geographic
area. The facility's entire schedule of wages for nurses shall be at
least 5 percent higher than the prevailing wage as determined by the
NPC, and such differentials shall be maintained throughout the period of
the Attestation's effectiveness.
(iv) Providing reasonable opportunities for meaningful salary
advancement by registered nurses. This may include salary advancement
based on factors such as merit, education, and specialty, and/or salary
advancement based on length of service, with other bases for wage
differentials remaining constant.
(A) Merit, education, and specialty. Salary advancement may be based
on factors such as merit, education, and specialty, or the facility may
provide opportunities for professional development of its nurses which
lead to salary advancement (e.g., participation in continuing education
or in-house educational instruction; service on special committees, task
forces, or projects considered of a professional development nature;
participation in professional organizations; and writing for
professional publications). Such opportunities must be available to all
the facility's nurses.
(B) Length of service. Salary advancement may be based on length of
service using clinical ladders which provide, annually, salary increases
of 3 percent or more for a period of no less than 10 years, over and
above the costs of living and merit, education, and specialty increases
and differentials.
(2) Other possible steps. The Act indicates that the four steps
described in the statute (and set out in paragraph (b)(1) of this
section) are not an exclusive list of timely and significant steps
[[Page 484]]
which might qualify. The actions described in paragraphs (b)(2)(i)
through (iv) of this section, are also deemed to be qualified; in
paragraph (b)(2)(v) of this section, the facility is afforded the
opportunity to identify a timely and significant step of its own
devising.
(i) Monetary incentives. The facility provides monetary incentives
to nurses, through bonuses and merit pay plans not included in the base
compensation package, for additional education, and for efforts by the
nurses leading to increased recruitment and retention of U.S. nurses.
Such monetary incentives may be based on actions by nurses such as:
Instituting innovations to achieve better patient care, increased
productivity, reduced waste, and/or improved workplace safety; obtaining
additional certification in a nursing specialty; accruing unused sick
leave; recruiting other U.S. nurses; staying with the facility for a
given number of years; taking less desirable assignments (other than
shift differential); participating in professional organizations;
serving on task forces and on special committees; or contributing to
professional publications.
(ii) Special perquisites. The facility provides nurses with special
perquisites for dependent care or housing assistance of a nature and/or
extent that constitute a ``significant'' factor in inducing employment
and retention of U.S. nurses.
(iii) Work schedule options. The facility provides nurses with non-
mandatory work schedule options for part-time work, job-sharing,
compressed work week or non-rotating shifts (provided, however, that H-
1C nurses are employed only in full-time work) of a nature and/or extent
that constitute a ``significant'' factor in inducing employment and
retention of U.S. nurses.
(iv) Other training options. The facility provides training
opportunities to U.S. workers not currently in health care occupations
to become registered nurses by means of financial assistance (e.g.,
scholarship, loan or pay-back programs) to such persons.
(v) Alternative but significant steps. Facilities are encouraged to
be innovative in devising timely and significant steps other than those
described in paragraphs (b)(1) and (b)(2)(i) through (iv) of this
section. To qualify, an alternative step must be of a timeliness and
significance comparable to those in this section. A facility may
designate on Form ETA 9081 that it has taken and is taking such
alternate step(s), thereby attesting that the step(s) meet the statutory
test of timeliness and significance comparable to those described in
paragraphs (b)(1) and (b)(2)(i) through (iv) in promoting the
development, recruitment, and retention of U.S. nurses. If such a
designation is made on Form ETA 9081, the submission of the Attestation
to ETA must include an explanation and appropriate documentation of the
alternate step(s), and of the manner in which they satisfy the statutory
test in comparison to the steps described in paragraphs (b)(1) and
(b)(2)(i) through (iv). ETA will review the explanation and
documentation and determine whether the alternate step(s) qualify under
this subsection. The ETA determination is subject to review by the
BALCA, upon the request of an interested party; such review shall be
limited to this matter.
(c) Unreasonableness of second step. Nothing in this subpart or
subpart M of this part requires a facility to take more than one step,
if the facility can demonstrate that taking a second step is not
reasonable. However, a facility shall make every effort to take at least
two steps. The taking of a second step may be considered unreasonable if
it would result in the facility's financial inability to continue
providing the same quality and quantity of health care or if the
provision of nursing services would otherwise be jeopardized by the
taking of such a step.
(1) A facility may designate on Form ETA 9081 that the taking of a
second step is not reasonable. If such a designation is made on Form ETA
9081, the submission of the Attestation to ETA shall include an
explanation and appropriate documentation with respect to each of the
steps described in paragraph (b) of this section (other than the step
designated as being taken by the facility), showing why it would be
unreasonable for the facility to take each such step and why it would be
unreasonable for the facility
[[Page 485]]
to take any other step designed to recruit, develop and retain
sufficient U.S. nurses to meet its staffing needs.
(2) ETA will review the explanation and documentation, and will
determine whether the taking of a second step would not be reasonable.
The ETA determination is subject to review by the BALCA, upon the
request of an interested party; such review shall be limited to this
matter.
(d) Performance-based alternative to criteria for specific steps.
Instead of complying with the specific criteria for one or more of the
steps in the second and/or succeeding years of participation in the H-1C
program, a facility may include in its prior year's Attestation, in
addition to the actions taken under specifically attested steps, that it
will reduce the number of H-1C nurses it utilizes within one year from
the date of the Attestation by at least 10 percent, without reducing the
quality or quantity of services provided. If this goal is achieved, the
facility shall so indicate on its subsequent year's Attestation.
Further, the facility need not attest to any ``timely and significant
step'' on that subsequent attestation, if it again indicates that it
shall again reduce the number of H-1C nurses it utilizes within one year
from the date of the Attestation by at least 10 percent. This
performance-based alternative is designed to permit a facility to
achieve the objectives of the Act, without subjecting the facility to
detailed requirements and criteria as to the specific means of achieving
that objective.
(e) Documentation. The facility must include in the public access
file a description of the activities which constitute its compliance
with each timely and significant step which is attested on Form ETA 9081
(e.g., summary of a training program for registered nurses; description
of a career ladder showing meaningful opportunities for pay advancements
for nurses). If the facility has attested that it will take an
alternative step or that taking a second step is unreasonable, then the
public access file must include the documentation which was submitted to
ETA under paragraph (c) of this section. The facility must maintain in
its non-public files, and must make available to the Administrator in
the event of an enforcement action pursuant to subpart M of this part,
documentation which provides a complete description of the nature and
operation of its program(s) sufficient to substantiate its full
compliance with the requirements of each timely and significant step
which is attested to on Form ETA 9081. This documentation should include
information relating to all of the requirements for the step in
question.
Sec. 655.1115 Element V--What does ``no strike/lockout or layoff''
mean?
(a) The fifth attestation element requires that the facility attest
that ``there is not a strike or lockout in the course of a labor
dispute, the facility did not lay off and will not lay off a registered
nurse employed by the facility within the period beginning 90 days
before and ending 90 days after the date of filing of any visa petition,
and the employment of such an alien is not intended or designated to
influence an election for a bargaining representative for registered
nurses of the facility.'' Labor disputes for purposes of this
attestation element relate only to those involving nurses providing
nursing services; other health service occupations are not included. A
facility which has filed a petition for H-1C nurses is also prohibited
from interfering with the right of the nonimmigrant to join or organize
a union.
(b) Notice of strike or lockout. In order to remain in compliance
with the no strike or lockout portion of this attestation element, the
facility must notify ETA if a strike or lockout of nurses at the
facility occurs during the 1 year validity period of the attestation.
Within 3 days of the occurrence of such strike or lockout, the facility
must submit to the Administrator, Office of Foreign Labor Certification,
Employment and Training Administration, Department of Labor, 200
Constitution Avenue, NW., Room C-4312, Washington, DC 20210, by U.S.
mail or private carrier, written notice of the strike or lockout. Upon
receiving a notice described in this section from a facility, ETA will
examine the documentation, and may consult with the union at the
facility or other appropriate entities. If ETA determines that
[[Page 486]]
the strike or lockout is covered under USCIS regulation 8 CFR
214.2(h)(17), Effect of a strike, for ``H'' nonimmigrants, ETA must
certify to USCIS, in the manner set forth in that regulation, that a
strike or other labor dispute involving a work stoppage of nurses is in
progress at the facility.
(c) Lay off of a U.S. nurse means that the employer has caused the
nurse's loss of employment in circumstances other than where--
(1) A U.S. nurse has been discharged for inadequate performance,
violation of workplace rules, or other reasonable work-related cause;
(2) A U.S. nurse's departure or retirement is voluntary (to be
assessed in light of the totality of the circumstances, under
established principles concerning ``constructive discharge'' of workers
who are pressured to leave employment);
(3) The grant or contract under which the work performed by the U.S.
nurse is required and funded has expired, and without such grant or
contract the nurse would not continue to be employed because there is no
alternative funding or need for the position; or
(4) A U.S. nurse who loses employment is offered, as an alternative
to such loss, a similar employment opportunity with the same employer.
The validity of the offer of a similar employment opportunity will be
assessed in light of the following factors:
(i) The offer is a bona fide offer, rather than an offer designed to
induce the U.S. nurse to refuse or an offer made with the expectation
that the worker will refuse;
(ii) The offered job provides the U.S. nurse an opportunity similar
to that provided in the job from which he/she is discharged, in terms
such as a similar level of authority, discretion, and responsibility, a
similar opportunity for advancement within the organization, and similar
tenure and work scheduling;
(iii) The offered job provides the U.S. nurse equivalent or higher
compensation and benefits to those provided in the job from which he/she
is discharged.
(d) Documentation. The facility must include in its public access
file, copies of all notices of strikes or other labor disputes involving
a work stoppage of nurses at the facility (submitted to ETA under
paragraph (b) of this section). The facility must retain in its non-
public files, and make available in the event of an enforcement action
pursuant to subpart M of this part, any existing documentation with
respect to the departure of each U.S. nurse who left his/her employment
with the facility in the period from 90 days before until 90 days after
the facility's petition for H-1C nurse(s). The facility is also required
to have a record of the terms of any offer of alternative employment to
such a U.S. nurse and the nurse's response to the offer (which may be a
note to the file or other record of the nurse's response), and to make
such record available in the event of an enforcement action pursuant to
subpart M.
[65 FR 51149, Aug. 22, 2000, as amended at 75 FR 10405, Mar. 5, 2010]
Sec. 655.1116 Element VI--What notification must facilities provide to
registered nurses?
(a) The sixth attestation element requires the facility to attest
that at the time of filing of the petition for registered nurses under
section 101(a)(15)(H)(i)(c) of the INA, notice of filing has been
provided by the facility to the bargaining representative of the
registered nurses at the facility or, where there is no such bargaining
representative, notice of the filing has been provided to registered
nurses at the facility through posting in conspicuous locations, and
individual copies of the Attestation have been provided to registered
nurses employed at the facility.
(b) Notification of bargaining representative. (1) At a time no
later than the date the attestation is transmitted to ETA, on ETA Form
9081, Attestation for H-1C Nonimmigrant Nurses, the facility must notify
the bargaining representative (if any) for nurses at the facility that
the attestation is being submitted. This notice may be either a copy of
the attestation (ETA Form 9081) or a document stating that the
attestations are available for review by interested parties at the
facility (explaining how they can be inspected or obtained) and at the
Office of Foreign
[[Page 487]]
Labor Certification, Employment and Training Administration, Department
of Labor, 200 Constitution Avenue, NW., Room C-4312, Washington, DC
20210. The notice must include the following statement: ``Complaints
alleging misrepresentation of material facts in the attestation or
failure to comply with the terms of the attestation may be filed with
any office of the Wage and Hour Division, United States Department of
Labor.''
(2) No later than the date the facility transmits a petition for H-
1C nurses to USCIS, the facility must notify the bargaining
representative (if any) for nurses at the facility that the H-1C
petition is being submitted. This notice may be either a copy of
petition, or a document stating that the attestations and H-1C petition
are available for review by interested parties at the facility
(explaining how they can be inspected or obtained) and at the Office of
Foreign Labor Certification, Employment and Training Administration,
Department of Labor, 200 Constitution Avenue, NW., Room C-4312,
Washington, DC 20210. The notice must include the following statement:
``Complaints alleging misrepresentation of material facts in the
attestation or failure to comply with the terms of the attestation may
be filed with any office of the Wage and Hour Division, United States
Department of Labor.''
(c) Posting notice. If there is no bargaining representative for
nurses at the facility, the facility must post a written notice in two
or more conspicuous locations at the facility. Such notices shall be
clearly visible and unobstructed while posted, and shall be posted in
conspicuous places where nurses can easily read the notices on their way
to or from their duties. Appropriate locations for posting hard copy
notices include locations in the immediate proximity of mandatory Fair
Labor Standards Act wage and hour notices and Occupational Safety and
Health Act occupational safety and health notices. In the alternative,
the facility may use electronic means it ordinarily uses to communicate
with its nurses about job vacancies or promotion opportunities,
including through its ``home page'' or ``electronic bulletin board,''
provided that the nurses have, as a practical matter, direct access to
those sites; or, where the nurses have individual e-mail accounts, the
facility may use e-mail. This must be accomplished no later than the
date when the facility transmits an Attestation to ETA and the date when
the facility transmits an H-1C petition to the USCIS. The notice may be
either a copy of the Attestation or petition, or a document stating that
the Attestation or petition has been filed and is available for review
by interested parties at the facility (explaining how these documents
can be inspected or obtained) and at the national office of ETA. The
notice shall include the following statement: ``Complaints alleging
misrepresentation of material facts in the Attestation or failure to
comply with the terms of the Attestation may be filed with any office of
the Wage and Hour Division of the United States Department of Labor.''
Unless it is sent to an individual e-mail address, the Attestation
notice shall remain posted during the validity period of the
Attestation; the petition notice shall remain posted for ten days.
Copies of all notices shall be available for examination in the
facility's public access file.
(d) Individual notice to RNs. In addition to notifying the
bargaining representative or posting notice as described in paragraphs
(b) and (c) of this section, the facility must provide a copy of the
Attestation, within 30 days of the date of filing, to every registered
nurse employed at the facility. This requirement may be satisfied by
electronic means if an individual e-mail message, with the Attestation
as an attachment, is sent to every RN at the facility. This notification
includes not only the RNs employed by the facility, but also includes
any RN who is providing service at the facility as an employee of
another entity, such as a nursing contractor.
(e) Where RNs lack practical computer access, a hard copy must be
posted in accordance with paragraph (c) of this section and a hard copy
of the Attestation delivered, within 30 days of the date of filing, to
every RN employed at the facility in accordance with paragraph (d) of
this section.
[[Page 488]]
(f) The facility must maintain, in its public access file, copies of
the notices required by this section. The facility must make such
documentation available to the Administrator in the event of an
enforcement action pursuant to subpart M of this part.
[65 FR 51149, Aug. 22, 2000, as amended at 75 FR 10405, Mar. 5, 2010]
Sec. 655.1117 Element VII--What are the limitations as to the number
of H-1C nonimmigrants that a facility may employ?
(a) The seventh attestation element requires that the facility
attest that it will not, at any time, employ a number of H-1C nurses
that exceeds 33% of the total number of registered nurses employed by
the facility. The calculation of the population of nurses for purposes
of this attestation includes only nurses who have an employer-employee
relationship with the facility (as defined in Sec. 655.1102).
(b) The facility must maintain documentation (e.g., payroll records,
copies of H-1C petitions) that demonstrates its compliance with this
attestation. The facility must make such documentation available to the
Administrator in the event of an enforcement action pursuant to subpart
M of this part.
Sec. 655.1118 Element VIII--What are the limitations as to where the
H-1C nonimmigrant may be employed?
The eighth attestation element requires that the facility attest
that it will not authorize any H-1C nurse to perform services at any
worksite not controlled by the facility or transfer any H-1C nurse from
one worksite to another worksite, even if all of the worksites are
controlled by the facility.
Sec. 655.1130 What criteria does the Department use to determine
whether or not to certify an Attestation?
(a) An Attestation form which is complete and has no obvious
inaccuracies will be accepted for filing by ETA without substantive
review, except that ETA will conduct a substantive review on particular
attestation elements in the following limited circumstances:
(1) Determination of whether the hospital submitting the Attestation
is a qualifying ``facility'' (see Sec. 655.1110(c)(ii), regarding the
documentation required, and the process for review);
(2) Where the facility attests that it is taking or will take a
``timely and significant step'' other than those identified on the Form
ETA 9081 (see Sec. 655.1114(b)(2)(v), regarding the documentation
required, and the process for review);
(3) Where the facility asserts that taking a second ``timely and
significant step'' is unreasonable (see Sec. 655.1114(c), regarding the
documentation required, and the process for review).
(b) The certifying officer will act on the Attestation in a timely
manner. If the officer does not contact the facility for information or
make any determination within 30 days of receiving the Attestation, the
Attestation shall be accepted for filing. If ETA receives information
contesting the truth of the statements attested to or compliance with an
Attestation prior to the determination to accept or reject the
Attestation for filing, such information shall not be made part of ETA's
administrative record on the Attestation but shall be referred to the
Administrator to be processed as a complaint pursuant to subpart M of
this part if such Attestation is accepted by ETA for filing.
(c) When the facility submits the attestation to ETA and provides
the notice required by Sec. 655.1116, the attestation must be made
available for public examination at the facility. When ETA accepts the
attestation for filing, the attestation will be made available, upon
request, for public examination in the Office of Foreign Labor
Certification, Employment Training Administration, U.S. Department of
Labor, Room C-4312, 200 Constitution Avenue, NW., Washington, DC 20210.
(d) Standards for acceptance of Attestation. ETA will accept the
Attestation for filing under the following standards:
(1) The Attestation is complete and contains no obvious
inaccuracies.
(2) The facility's explanation and documentation are sufficient to
satisfy the requirements for the Attestation
[[Page 489]]
elements on which substantive review is conducted (as described in
paragraph (a) of this section).
(3) The facility has no outstanding ``insufficient funds'' check(s)
in connection with filing fee(s) for prior Attestation(s).
(4) The facility has no outstanding civil money penalties and/or has
not failed to satisfy a remedy assessed by the Wage and Hour
Administrator, under subpart M of this part, where that penalty or
remedy assessment has become the final agency action.
(5) The facility has not been disqualified from approval of any
petitions filed by, or on behalf of, the facility under section 204 or
section 212(m) of the INA.
(e) DOL not the guarantor. DOL is not the guarantor of the accuracy,
truthfulness or adequacy of an Attestation accepted for filing.
(f) Attestation Effective and Expiration Dates. An Attestation
becomes filed and effective as of the date it is accepted and signed by
the ETA certifying officer. Such Attestation is valid until the date
that is the later of the end of the 12-month period beginning on the
date of acceptance for filing with the Secretary, or the end of the
period of admission (under INA section 101(a)(15)(H)(i)(c)) of the last
alien with respect to whose admission the Attestation was applied,
unless the Attestation is suspended or invalidated earlier than such
date pursuant to Sec. 655.1132.
[65 FR 51149, Aug. 22, 2000, as amended at 75 FR 10406, Mar. 5, 2010]
Sec. 655.1132 When will the Department suspend or invalidate an
approved Attestation?
(a) Suspension or invalidation of an Attestation may result where:
the facility's check for the filing fee is not honored by a financial
institution; a Board of Alien Labor Certification Appeals (BALCA)
decision reverses an ETA certification of the Attestation; ETA finds
that it made an error in its review and certification of the
Attestation; an enforcement proceeding has finally determined that the
facility failed to meet a condition attested to, or that there was a
misrepresentation of material fact in an Attestation; the facility has
failed to pay civil money penalties and/or failed to satisfy a remedy
assessed by the Wage and Hour Administrator, where that penalty or
remedy assessment has become the final agency action. If an Attestation
is suspended or invalidated, ETA will notify USCIS.
(b) BALCA decision or final agency action in an enforcement
proceeding. If an Attestation is suspended or invalidated as a result of
a BALCA decision overruling an ETA acceptance of the Attestation for
filing, or is suspended or invalidated as a result of an enforcement
action by the Administrator under subpart M of this part, such
suspension or invalidation may not be separately appealed, but shall be
merged with appeals on the underlying matter.
(c) ETA action. If, after accepting an Attestation for filing, ETA
discovers that it erroneously accepted that Attestation for filing and,
as a result, ETA suspends or invalidates that acceptance, the facility
may appeal such suspension or invalidation under Sec. 655.1135 as if
that suspension or invalidation were a decision to reject the
Attestation for filing.
(d) A facility must comply with the terms of its Attestation, even
if such Attestation is suspended, invalidated or expired, as long as any
H-1C nurse is at the facility, unless the Attestation is superseded by a
subsequent Attestation accepted for filing by ETA.
Sec. 655.1135 What appeals procedures are available concerning ETA's
actions on a facility's Attestation?
(a) Appeals of acceptances or rejections. Any interested party may
appeal ETA's acceptance or rejection of an Attestation submitted by a
facility for filing. However, such an appeal shall be limited to ETA's
determination on one or more of the attestation elements for which ETA
conducts a substantive review (as described in Sec. 655.1130(a)). Such
appeal must be filed no later than 30 days after the date of the
acceptance or rejection, and will be considered under the procedures set
forth at paragraphs (d) and (f) of this section.
(b) Appeal of invalidation or suspension. An interested party may
appeal ETA's invalidation or suspension of a filed Attestation due to a
discovery by ETA that it made an error in its review
[[Page 490]]
of the Attestation, as described in Sec. 655.1132.
(c) Parties to the appeal. In the case of an appeal of an
acceptance, the facility will be a party to the appeal; in the case of
the appeal of a rejection, invalidation, or suspension, the collective
bargaining representative (if any) representing nurses at the facility
shall be a party to the appeal. Appeals shall be in writing; shall set
forth the grounds for the appeal; shall state if de novo consideration
by BALCA is requested; and shall be mailed by certified mail within 30
calendar days of the date of the action from which the appeal is taken
(i.e., the acceptance, rejection, suspension or invalidation of the
Attestation).
(d) Where to file appeals. Appeals made under this section must be
in writing and must be mailed by certified mail to: U.S. Department of
Labor, Employment and Training Administration, Office of Foreign Labor
Certification, Chicago National Processing Center, 536 South Clark
Street, Chicago, IL 60605-1509.
(e) Transmittal of the case file to BALCA. Upon receipt of an appeal
under this section, the Certifying Office shall send to BALCA a
certified copy of the ETA case file, containing the Attestation and
supporting documentation and any other information or data considered by
ETA in taking the action being appealed. The administrative law judge
chairing BALCA shall assign a panel of one or more administrative law
judges who serve on BALCA to review the record for legal sufficiency and
to consider and rule on the appeal.
(f) Consideration on the record; de novo hearings. BALCA may not
remand, dismiss, or stay the case, except as provided in paragraph (h)
of this section, but may otherwise consider the appeal on the record or
in a de novo hearing (on its own motion or on a party's request).
Interested parties and amici curiae may submit briefs in accordance with
a schedule set by BALCA. The ETA official who made the determination
which was appealed will be represented by the Associate Solicitor for
Employment and Training Legal Services, Office of the Solicitor,
Department of Labor, or the Associate Solicitor's designee. If BALCA
determines to hear the appeal on the record without a de novo hearing,
BALCA shall render a decision within 30 calendar days after BALCA's
receipt of the case file. If BALCA determines to hear the appeal through
a de novo hearing, the procedures contained in 29 CFR part 18 will apply
to such hearings, except that:
(1) The appeal will not be considered to be a complaint to which an
answer is required.
(2) BALCA shall ensure that, at the request of the appellant, the
hearing is scheduled to take place within a reasonable period after
BALCA's receipt of the case file (see also the time period described in
paragraph (f)(4) of this section).
(3) Technical rules of evidence, such as the Federal Rules of
Evidence and subpart B of the Rules of Practice and Procedure for
Administrative Hearings Before the Office of Administrative Law Judges
(29 CFR part 18, subpart B), will not apply to any hearing conducted
pursuant to this subpart, but rules or principles designed to assure
production of the most credible evidence available, and to subject
testimony to test by cross-examination, shall be applied where
reasonably necessary by BALCA in conducting the hearing. BALCA may
exclude irrelevant, immaterial, or unduly repetitious evidence. The
certified copy of the case file transmitted to BALCA by the Certifying
Officer must be made part of the evidentiary record of the case and need
not be moved into evidence.
(4) BALCA's decision shall be rendered within 120 calendar days
after BALCA's receipt of the case file.
(g) Dismissals and stays. If BALCA determines that the appeal is
solely a question of misrepresentation by the facility or is solely a
complaint of the facility's nonperformance of the Attestation, BALCA
shall dismiss the case and refer the matter to the Administrator, Wage
and Hour Division, for action under subpart M. If BALCA determines that
the appeal is partially a question of misrepresentation by the facility,
or is partially a complaint of the facility's nonperformance of the
Attestation, BALCA shall refer the matter to the Administrator, Wage and
Hour Division, for action under subpart
[[Page 491]]
M of this part and shall stay BALCA consideration of the case pending
final agency action on such referral. During such stay, the 120-day
period described in paragraph (f)(1)(iv) of this section shall be
suspended.
(h) BALCA's decision. After consideration on the record or a de novo
hearing, BALCA shall either affirm or reverse ETA's decision, and shall
so notify the appellant; and any other parties.
(i) Decisions on Attestations. With respect to an appeal of the
acceptance, rejection, suspension or invalidation of an Attestation, the
decision of BALCA shall be the final decision of the Secretary, and no
further review shall be given to the matter by any DOL official.
[65 FR 51149, Aug. 22, 2000, as amended at 75 FR 10406, Mar. 5, 2010]
Sec. 655.1150 What materials must be available to the public?
(a) Public examination at ETA. ETA will make available, upon
request, for public examination at the Office of Foreign Labor
Certification, Employment Training Administration, U.S. Department of
Labor, Room C-4312, 200 Constitution Avenue, NW., Washington, DC 20210,
a list of facilities which have filed attestations; a copy of the
facility's attestation(s) and any supporting documentation; and a copy
of each of the facility's H-1C petitions (if any) to USCIS along with
the USCIS approval notices (if any).
(b) Public examination at facility. For the duration of the
Attestation's validity and thereafter for so long as the facility
employs any H-1C nurse under the Attestation, the facility must maintain
a separate file containing a copy of the Attestation, a copy of the
prevailing wage determination, a description of the facility pay system
or a copy of the facility's pay schedule if either document exists,
copies of the notices provided under Sec. 655.1115 and Sec. 655.1116,
a description of the ``timely and significant steps'' as described in
Sec. 655.1114, and any other documentation required by this part to be
contained in the public access file. The facility must make this file
available to any interested parties within 72 hours upon written or oral
request. If a party requests a copy of the file, the facility shall
provide it and any charge for such copy shall not exceed the cost of
reproduction.
(c) ETA Notice to public. ETA will periodically publish a notice in
the Federal Register announcing the names and addresses of facilities
which have submitted Attestations; facilities which have Attestations on
file; facilities which have submitted Attestations which have been
rejected for filing; and facilities which have had Attestations
suspended.
[65 FR 51149, Aug. 22, 2000, as amended at 75 FR 10406, Mar. 5, 2010]
Subpart M_What are the Department's enforcement obligations with respect
to H 1C Attestations?
Source: 65 FR 51149, Aug. 22, 2000, unless otherwise noted.
Editorial Note: Nomenclature changes to subpart M of part 655 appear
at 75 FR 10403, Mar. 5, 2010.
Sec. 655.1200 What enforcement authority does the Department have with
respect to a facility's H-1C Attestations?
(a) The Administrator shall perform all the Secretary's
investigative and enforcement functions under 8 U.S.C. 1182(m) and
subparts L and M of this part.
(b) The Administrator, either because of a complaint or otherwise,
shall conduct such investigations as may be appropriate and, in
connection therewith, enter and inspect such places and such records
(and make transcriptions thereof), question such persons and gather such
information as deemed necessary by the Administrator to determine
compliance with the matters to which a facility has attested under
section 212(m) of the INA (8 U.S.C. 1182(m)) and subparts L and M of
this part.
(c) A facility being investigated must make available to the
Administrator such records, information, persons, and places as the
Administrator deems appropriate to copy, transcribe, question,
[[Page 492]]
or inspect. A facility must fully cooperate with any official of the
Department of Labor performing an investigation, inspection, or law
enforcement function under 8 U.S.C. 1182(m) or subparts L or M of this
part. Such cooperation shall include producing documentation upon
request. The Administrator may deem the failure to cooperate to be a
violation, and take such further actions as the Administrator considers
appropriate.
(Note: Federal criminal statutes prohibit certain interference with
a Federal officer in the performance of official duties. 18 U.S.C. 111
and 1114.)
(d) No facility may intimidate, threaten, restrain, coerce,
blacklist, discharge, or in any manner discriminate against any person
because such person has:
(1) Filed a complaint or appeal under or related to section 212(m)
of the INA (8 U.S.C. 1182(m)) or subpart L or M of this part;
(2) Testified or is about to testify in any proceeding under or
related to section 212(m) of the INA (8 U.S.C. 1182(m)) or subpart L or
M of this part.
(3) Exercised or asserted on behalf of himself/herself or others any
right or protection afforded by section 212(m) of the INA (8 U.S.C.
1182(m)) or subpart L or M of this part.
(4) Consulted with an employee of a legal assistance program or an
attorney on matters related to the Act or to subparts L or M of this
part or any other DOL regulation promulgated under 8 U.S.C. 1182(m).
(5) In the event of such intimidation or restraint as are described
in this paragraph, the Administrator may deem the conduct to be a
violation and take such further actions as the Administrator considers
appropriate.
(e) A facility subject to subparts L and M of this part must
maintain a separate file containing its Attestation and required
documentation, and must make that file or copies thereof available to
interested parties, as required by Sec. 655.1150. In the event of a
facility's failure to maintain the file, to provide access, or to
provide copies, the Administrator may deem the conduct to be a violation
and take such further actions as the Administrator considers
appropriate.
(f) No facility may seek to have an H-1C nurse, or any other nurse
similarly employed by the employer, or any other employee waive rights
conferred under the Act or under subpart L or M of this part. In the
event of such waiver, the Administrator may deem the conduct to be a
violation and take such further actions as the Administrator considers
appropriate. This prohibition of waivers does not prevent agreements to
settle litigation among private parties, and a waiver or modification of
rights or obligations in favor of the Secretary shall be valid for
purposes of enforcement of the provisions of the Act or subpart L and M
of this part.
(g) The Administrator shall, to the extent possible under existing
law, protect the confidentiality of any complainant or other person who
provides information to the Department.
Sec. 655.1205 What is the Administrator's responsibility with respect
to complaints and investigations?
(a) The Administrator, through investigation, shall determine
whether a facility has failed to perform any attested conditions,
misrepresented any material facts in an Attestation (including
misrepresentation as to compliance with regulatory standards), or
otherwise violated the Act or subpart L or M of this part. The
Administrator's authority applies whether an Attestation is expired or
unexpired at the time a complaint is filed. (Note: Federal criminal
statutes provide for fines and/or imprisonment for knowing and willful
submission of false statements to the Federal Government. 18 U.S.C.
1001; see also 18 U.S.C. 1546.)
(b) Any aggrieved person or organization may file a complaint of a
violation of the provisions of section 212(m) of the INA (8 U.S.C.
1182(m)) or subpart L or M of this part. No particular form of complaint
is required, except that the complaint shall be written or, if oral,
shall be reduced to writing by the Wage and Hour Division official who
receives the complaint. The complaint must set forth sufficient facts
for the Administrator to determine what part or parts of the Attestation
or regulations have allegedly been violated. Upon the request of the
complainant, the Administrator shall, to the extent possible
[[Page 493]]
under existing law, maintain confidentiality about the complainant's
identity; if the complainant wishes to be a party to the administrative
hearing proceedings under this subpart, the complainant shall then waive
confidentiality. The complaint may be submitted to any local Wage and
Hour Division office; the addresses of such offices are found in local
telephone directories. Inquiries concerning the enforcement program and
requests for technical assistance regarding compliance may also be
submitted to the local Wage and Hour Division office.
(c) The Administrator shall determine whether there is reasonable
cause to believe that the complaint warrants investigation and, if so,
shall conduct an investigation, within 180 days of the receipt of a
complaint. If the Administrator determines that the complaint fails to
present reasonable cause for an investigation, the Administrator shall
so notify the complainant, who may submit a new complaint, with such
additional information as may be necessary.
(d) When an investigation has been conducted, the Administrator
shall, within 180 days of the receipt of a complaint, issue a written
determination, stating whether a basis exists to make a finding that the
facility failed to meet a condition of its Attestation, made a
misrepresentation of a material fact therein, or otherwise violated the
Act or subpart L or M. The determination shall specify any sanctions
imposed due to violations. The Administrator shall provide a notice of
such determination to the interested parties and shall inform them of
the opportunity for a hearing pursuant to Sec. 655.1220.
Sec. 655.1210 What penalties and other remedies may the Administrator
impose?
(a) The Administrator may assess a civil money penalty not to exceed
$1,000 per nurse per violation, with the total penalty not to exceed
$10,000 per violation. The Administrator also may impose appropriate
remedies, including the payment of back wages, the performance of
attested obligations such as providing training, and reinstatement and/
or wages for laid off U.S. nurses.
(b) In determining the amount of civil money penalty to be assessed
for any violation, the Administrator will consider the type of violation
committed and other relevant factors. The matters which may be
considered include, but are not limited to, the following:
(1) Previous history of violation, or violations, by the facility
under the Act and subpart L or M of this part;
(2) The number of workers affected by the violation or violations;
(3) The gravity of the violation or violations;
(4) Efforts made by the violator in good faith to comply with the
Attestation as provided in the Act and subparts L and M of this part;
(5) The violator's explanation of the violation or violations;
(6) The violator's commitment to future compliance, taking into
account the public health, interest, or safety; and
(7) The extent to which the violator achieved a financial gain due
to the violation, or the potential financial loss or potential injury or
adverse effect upon the workers.
(c) The civil money penalty, back wages, and any other remedy
determined by the Administrator to be appropriate, are immediately due
for payment or performance upon the assessment by the Administrator, or
the decision by an administrative law judge where a hearing is
requested, or the decision by the Secretary where review is granted. The
facility must remit the amount of the civil money penalty, by certified
check or money order made payable to the order of ``Wage and Hour
Division, Labor.'' The remittance must be delivered or mailed to the
Wage and Hour Division Regional Office for the area in which the
violation(s) occurred. The payment of back wages, monetary relief, and/
or the performance or any other remedy prescribed by the Administrator
will follow procedures established by the Administrator. The facility's
failure to pay the civil money penalty, back wages, or other monetary
relief, or to perform any other assessed remedy, will result in the
rejection by ETA of
[[Page 494]]
any future Attestation submitted by the facility until such payment or
performance is accomplished.
(d) The Federal Civil Penalties Inflation Adjustment Act of 1990, as
amended (28 U.S.C. 2461 note), requires that inflationary adjustments to
civil money penalties in accordance with a specified cost-of-living
formula be made, by regulation, at least every four years. The
adjustments are to be based on changes in the Consumer Price Index for
all Urban Consumers (CPI-U) for the U.S. City Average for All Items. The
adjusted amounts will be published in the Federal Register. The amount
of the penalty in a particular case will be based on the amount of the
penalty in effect at the time the violation occurs.
Sec. 655.1215 How are the Administrator's investigation findings
issued?
(a) The Administrator's determination, issued under Sec.
655.1205(d), shall be served on the complainant, the facility, and other
interested parties by personal service or by certified mail at the
parties' last known addresses. Where service by certified mail is not
accepted by the party, the Administrator may exercise discretion to
serve the determination by regular mail. Where the complainant has
requested confidentiality, the Administrator shall serve the
determination in a manner which will not breach that confidentiality.
(b) The Administrator's written determination required by Sec.
655.1205(c) shall:
(1) Set forth the determination of the Administrator and the reason
or reasons therefore; prescribe any remedies or penalties including the
amount of any unpaid wages due, the actions required for compliance with
the facility Attestation, and the amount of any civil money penalty
assessment and the reason or reasons therefore.
(2) Inform the interested parties that they may request a hearing
under Sec. 655.1220.
(3) Inform the interested parties that if a request for a hearing is
not received by the Chief Administrative Law Judge within 15 days of the
date of the determination, the determination of the Administrator shall
become final and not appealable.
(4) Set forth the procedure for requesting a hearing, and give the
address of the Chief Administrative Law Judge.
(5) Inform the parties that, under Sec. 655.1255, the Administrator
shall notify the Department of Homeland Security and ETA of the
occurrence of a violation by the employer.
[75 FR 10406, Mar. 5, 2010]
Sec. 655.1220 Who can appeal the Administrator's findings and what is
the process?
(a) Any interested party desiring review of a determination issued
under Sec. 655.1205(d), including judicial review, must make a request
for an administrative hearing in writing to the Chief Administrative Law
Judge at the address stated in the notice of determination. If such a
request for an administrative hearing is timely filed, the
Administrator's determination shall be inoperative unless and until the
case is dismissed or the Administrative Law Judge issues an order
affirming the decision.
(b) An interested party may request a hearing in the following
circumstances:
(1) Where the Administrator determines that there is no basis for a
finding of violation, the complainant or other interested party may
request a hearing. In such a proceeding, the party requesting the
hearing shall be the prosecuting party and the facility shall be the
respondent; the Administrator may intervene as a party or appear as
amicus curiae at any time in the proceeding, at the Administrator's
discretion.
(2) Where the Administrator determines that there is a basis for a
finding of violation, the facility or other interested party may request
a hearing. In such a proceeding, the Administrator shall be the
prosecuting party and the facility shall be the respondent.
(c) No particular form is prescribed for any request for hearing
permitted by this part. However, any such request shall:
(1) Be dated;
(2) Be typewritten or legibly written;
[[Page 495]]
(3) Specify the issue or issues stated in the notice of
determination giving rise to such request;
(4) State the specific reason or reasons why the party requesting
the hearing believes such determination is in error;
(5) Be signed by the party making the request or by an authorized
representative of such party; and
(6) Include the address at which such party or authorized
representative desires to receive further communications relating
thereto.
(d) The request for such hearing must be received by the Chief
Administrative Law Judge, at the address stated in the Administrator's
notice of determination, no later than 10 days after the date of the
determination. An interested party which fails to meet this 10-day
deadline for requesting a hearing may thereafter participate in the
proceedings only by consent of the administrative law judge, either
through intervention as a party under 29 CFR 18.10 (b) through (d) or
through participation as an amicus curiae under 29 CFR 18.12.
(e) The request may be filed in person, by facsimile transmission,
by certified or regular mail, or by courier service. For the requesting
party's protection, if the request is filed by mail, it should be
certified mail. If the request is filed by facsimile transmission, the
original of the request, signed by the requestor or authorized
representative, must be filed within 10 days of the date of the
Administrator's notice of determination.
(f) Copies of the request for a hearing must be sent by the
requestor to the Wage and Hour Division official who issued the
Administrator's notice of determination, to the representative(s) of the
Solicitor of Labor identified in the notice of determination, and to all
known interested parties.
Sec. 655.1225 What are the rules of practice before an ALJ?
(a) Except as specifically provided in this subpart, and to the
extent they do not conflict with the provisions of this subpart, the
``Rules of Practice and Procedure for Administrative Hearings Before the
Office of Administrative Law Judges'' established by the Secretary at 29
CFR part 18 shall apply to administrative proceedings under this
subpart.
(b) As provided in the Administrative Procedure Act, 5 U.S.C. 556,
any oral or documentary evidence may be received in proceedings under
this part. The Federal Rules of Evidence and subpart B of the Rules of
Practice and Procedure for Administrative Hearings Before the Office of
Administrative Law Judges (29 CFR part 18, subpart B) do not apply, but
principles designed to ensure production of relevant and probative
evidence shall guide the admission of evidence. The administrative law
judge may exclude evidence which is immaterial, irrelevant, or unduly
repetitive.
Sec. 655.1230 What time limits are imposed in ALJ proceedings?
(a) Under this subpart, a party may serve any pleading or document
by regular mail. Service is complete upon mailing to the last known
address. No additional time for filing or response is authorized where
service is by mail. In the interest of expeditious proceedings, the
administrative law judge may direct the parties to serve pleadings or
documents by a method other than regular mail.
(b) Two (2) copies of all pleadings and other documents in any
administrative law judge proceeding shall be served on the attorneys for
the Administrator. One copy must be served on the Associate Solicitor,
Division of Fair Labor Standards, Office of the Solicitor, U.S.
Department of Labor, 200 Constitution Avenue N.W., Washington, D.C.
20210, and one copy on the attorney representing the Administrator in
the proceeding.
(c) Time will be computed beginning with the day following the
action and includes the last day of the period unless it is a Saturday,
Sunday, or Federally-observed holiday, in which case the time period
includes the next business day.
Sec. 655.1235 What are the ALJ proceedings?
(a) Upon receipt of a timely request for a hearing filed in
accordance with Sec. 655.1220, the Chief Administrative Law
[[Page 496]]
Judge shall appoint an administrative law judge to hear the case.
(b) Within seven (7) days following the assignment of the case, the
administrative law judge shall notify all interested parties of the
date, time, and place of the hearing. All parties shall be given at
least five (5) days notice of such hearing.
(c) The date of the hearing shall be not more than 60 days from the
date of the Administrator's determination. Because of the time
constraints imposed by the Act, no requests for postponement shall be
granted except for compelling reasons and by consent of all the parties
to the proceeding.
(d) The administrative law judge may prescribe a schedule by which
the parties are permitted to file a pre-hearing brief or other written
statement of fact or law. Any such brief or statement shall be served
upon each other party in accordance with Sec. 655.1230. Posthearing
briefs will not be permitted except at the request of the administrative
law judge. When permitted, any such brief shall be limited to the issue
or issues specified by the administrative law judge, shall be due within
the time prescribed by the administrative law judge, and shall be served
on each other party in accordance with Sec. 655.1230.
Sec. 655.1240 When and how does an ALJ issue a decision?
(a) Within 90 days after receipt of the transcript of the hearing,
the administrative law judge shall issue a decision.
(b) The decision of the administrative law judge shall include a
statement of findings and conclusions, with reasons and basis therefore,
upon each material issue presented on the record. The decision shall
also include an appropriate order which may affirm, deny, reverse, or
modify, in whole or in part, the determination of the Administrator; the
reason or reasons for such order shall be stated in the decision. The
administrative law judge shall not render determinations as to the
legality of a regulatory provision or the constitutionality of a
statutory provision.
(c) The decision shall be served on all parties in person or by
certified or regular mail.
Sec. 655.1245 Who can appeal the ALJ's decision and what is the
process?
(a) The Administrator or any interested party desiring review of the
decision and order of an administrative law judge, including judicial
review, must petition the Department's Administrative Review Board
(Board) to review the ALJ's decision and order. To be effective, such
petition must be received by the Board within 30 days of the date of the
decision and order. Copies of the petition must be served on all parties
and on the administrative law judge.
(b) No particular form is prescribed for any petition for the
Board's review permitted by this subpart. However, any such petition
must:
(1) Be dated;
(2) Be typewritten or legibly written;
(3) Specify the issue or issues stated in the administrative law
judge's decision and order giving rise to such petition;
(4) State the specific reason or reasons why the party petitioning
for review believes such decision and order are in error;
(5) Be signed by the party filing the petition or by an authorized
representative of such party;
(6) Include the address at which such party or authorized
representative desires to receive further communications relating
thereto; and
(7) Attach copies of the administrative law judge's decision and
order, and any other record documents which would assist the Board in
determining whether review is warranted.
(c) Whenever the Board determines to review the decision and order
of an administrative law judge, a notice of the Board's determination
must be served upon the administrative law judge and upon all parties to
the proceeding within 30 days after the Board's receipt of the petition
for review. If the Board determines that it will review the decision and
order, the order shall be inoperative unless and until the Board issues
an order affirming the decision and order.
(d) Within 15 days of receipt of the Board's notice, the Office of
Administrative Law Judges shall forward the complete hearing record to
the Board.
(e) The Board's notice shall specify:
(1) The issue or issues to be reviewed;
[[Page 497]]
(2) The form in which submissions must be made by the parties (e.g.,
briefs, oral argument);
(3) The time within which such submissions must be made.
(f) All documents submitted to the Board must be filed with the
Administrative Review Board, Room S-4309, U.S. Department of Labor,
Washington, D.C. 20210. An original and two copies of all documents must
be filed. Documents are not deemed filed with the Board until actually
received by the Board. All documents, including documents filed by mail,
must be received by the Board either on or before the due date.
(g) Copies of all documents filed with the Board must be served upon
all other parties involved in the proceeding. Service upon the
Administrator must be in accordance with Sec. 655.1230(b).
(h) The Board's final decision shall be issued within 180 days from
the date of the notice of intent to review. The Board's decision shall
be served upon all parties and the administrative law judge.
(i) Upon issuance of the Board's decision, the Board shall transmit
the entire record to the Chief Administrative Law Judge for custody in
accordance with Sec. 655.1250.
Sec. 655.1250 Who is the official record keeper for these
administrative appeals?
The official record of every completed administrative hearing
procedure provided by subparts L and M of this part shall be maintained
and filed under the custody and control of the Chief Administrative Law
Judge. Upon receipt of a complaint seeking review of the final agency
action in a United States District Court, the Chief Administrative Law
Judge shall certify the official record and shall transmit such record
to the clerk of the court.
Sec. 655.1255 What are the procedures for debarment of a facility
based on a finding of violation?
(a) The Administrator shall notify the Department of Homeland
Security and ETA of the final determination of a violation by a facility
upon the earliest of the following events:
(1) Where the Administrator determines that there is a basis for a
finding of violation by a facility, and no timely request for hearing is
made under Sec. 655.1220; or
(2) Where, after a hearing, the administrative law judge issues a
decision and order finding a violation by a facility, and no timely
petition for review to the Board is made under Sec. 655.1245; or
(3) Where a petition for review is taken from an administrative law
judge's decision and the Board either declines within 30 days to
entertain the appeal, under Sec. 655.1245(c), or the Board affirms the
administrative law judge's determination; or
(4) Where the administrative law judge finds that there was no
violation by a facility, and the Board, upon review, issues a decision
under Sec. 655.1245(h), holding that a violation was committed by a
facility.
(b) U.S. Citizenship and Immigration Services, upon receipt of the
Administrator's notice under paragraph (a) of this section, shall not
approve petitions filed with respect to that employer under section
212(m) of the INA (8 U.S.C. 1182(m)) during a period of at least 12
months from the date of receipt of the Administrator's notification. The
Administrator must provide USCIS with a recommendation as to the length
of the debarment.
(c) ETA, upon receipt of the Administrator's notice under paragraph
(a) of this section, shall suspend the employer's attestation(s) under
subparts L and M of this part, and shall not accept for filing any
attestation submitted by the employer under subparts L and M of this
part, for a period of 12 months from the date of receipt of the
Administrator's notification or for a longer period if one is specified
by the Department of Homeland Security for visa petitions filed by that
employer under section 212(m) of the INA.
[75 FR 10406, Mar. 5, 2010]
Sec. 655.1260 Can Equal Access to Justice Act attorney fees be
awarded?
A proceeding under subpart L or M of this part is not subject to the
Equal Access to Justice Act, as amended, 5 U.S.C. 504. In such a
proceeding, the administrative law judge shall have no authority to
award attorney fees and/
[[Page 498]]
or other litigation expenses under the provisions of the Equal Access to
Justice Act.
Subpart N_Labor Certification Process for Temporary Agricultural
Employment in the United States (H 2A Workers)
Source: 73 FR 77207, Dec. 18, 2008, unless otherwise noted.
Redesignated at 74 FR 25985, May 29, 2009.
Effective Date Note: At 74 FR 25985, May 29, 2009, subpart B,
consisting of Sec. Sec. 655.90, 655.92, 655.93, and 655.100 through
655.119, was redesignated as subpart N, consisting of Sec. Sec.
655.1290, 655.1292, 655.1293, and 655.1300 through 655.1319, and newly
designated subpart N was suspended, effective June 29, 2009.
Sec. 655.1290 Purpose and scope of subpart B.
This subpart sets out the procedures established by the Secretary of
the United States Department of Labor (the Secretary) to acquire
information sufficient to make factual determinations of:
(a) Whether there are sufficient able, willing, and qualified U.S.
workers available to perform the temporary and seasonal agricultural
employment for which an employer desires to import nonimmigrant foreign
workers (H-2A workers); and
(b) Whether the employment of H-2A workers will adversely affect the
wages and working conditions of workers in the U.S. similarly employed.
Sec. 655.1292 Authority of ETA-OFLC.
Temporary agricultural labor certification determinations are made
by the Administrator, Office of Foreign Labor Certification (OFLC) in
the Department of Labor's (the Department or DOL) Employment & Training
Administration (ETA), who, in turn, may delegate this responsibility to
a designated staff member; e.g., a Certifying Officer (CO).
Sec. 655.1293 Special procedures.
(a) Systematic process. This subpart provides procedures for the
processing of applications from agricultural employers and associations
of employers for the certification of employment of nonimmigrant workers
in agricultural employment.
(b) Establishment of special procedures. To provide for a limited
degree of flexibility in carrying out the Secretary's responsibilities
under the Immigration and Nationality Act (INA), while not deviating
from statutory requirements, the Administrator, OFLC has the authority
to establish or to devise, continue, revise, or revoke special
procedures in the form of variances for processing certain H-2A
applications when employers can demonstrate upon written application to
the Administrator, OFLC that special procedures are necessary. These
include special procedures in effect for the handling of applications
for sheepherders in the Western States (and adaptation of such
procedures to occupations in the range production of other livestock),
and for custom combine crews. In a like manner, for work in occupations
characterized by other than a reasonably regular workday or workweek,
such as the range production of sheep or other livestock, the
Administrator, OFLC has the authority to establish monthly, weekly, or
bi-weekly adverse effect wage rates (AEWR) for those occupations for a
statewide or other geographical area. Prior to making determinations
under this section, the Administrator, OFLC will consult with employer
and worker representatives.
Sec. 655.1300 Overview of subpart B and definition of terms.
(a) Overview--(1) Application filing process. (i) This subpart
provides guidance to employers desiring to apply for a labor
certification for the employment of H-2A workers to perform agricultural
employment of a temporary or seasonal nature. The regulations in this
subpart provide that such employers must file with the Administrator,
OFLC an H-2A application on forms prescribed by the ETA that describe
the material terms and conditions of employment to be offered and
afforded to U.S. and H-2A workers. The application must be filed with
the Administrator, OFLC at least 45 calendar days
[[Page 499]]
before the first date the employer requires the services of the H-2A
workers. The application must contain attestations of the employer's
compliance or promise to comply with program requirements regarding
recruitment of eligible U.S. workers, the payment of an appropriate
wage, and terms and conditions of employment.
(ii) No more than 75 and no fewer than 60 calendar days before the
first date the employer requires the services of the H-2A workers, and
as a precursor to the filing of an Application for Temporary Employment
Certification, the employer must initiate positive recruitment of
eligible U.S. workers and cooperate with the local office of the State
Workforce Agency (SWA) which serves the area of intended employment to
place a job order into intrastate and interstate recruitment. Prior to
commencing recruitment an employer must obtain the appropriate wage for
the position directly from the ETA National Processing Center (NPC). The
employer must then place a job order with the SWA; place print
advertisements meeting the requirements of this regulation; contact
former U.S. employees; and, when so designated by the Secretary, recruit
in other States of traditional or expected labor supply with a
significant number of U.S. workers who, if recruited, would be willing
to make themselves available at the time and place needed. The SWA will
post the job order locally, as well as in all States listed in the
application as anticipated work sites, and in any additional States
designated by the Secretary as States of traditional or expected labor
supply. The SWA will keep the job order open until the end of the
designated recruitment period. No more than 50 days prior to the first
date the employer requires the services of the H-2A workers, the
employer will prepare and sign an initial written recruitment report
that it must submit with its Application for Temporary Employment
Certification (www.foreignlaborcert.doleta.gov). The recruitment report
must contain information regarding the original number of openings for
which the employer recruited. The employer's obligation to engage in
positive recruitment will end on the actual date on which the H-2A
workers depart for the place of work, or 3 days prior to the first date
the employer requires the services of the H-2A workers, whichever occurs
first.
(iii) The Application for Temporary Employment Certification must be
filed by mail unless the Department publishes a Notice in the Federal
Register requiring that applications be filed electronically.
Applications that meet threshold requirements for completeness and
accuracy will be processed by NPC staff, who will review each
application for compliance with the criteria for certification. Each
application must meet requirements for timeliness and temporary need and
must provide assurances and other safeguards against adverse impact on
the wages and working conditions of U.S. workers. Employers receiving a
labor certification must continue to cooperate with the SWA by accepting
referrals--and have the obligation to hire qualified and eligible U.S.
workers who apply--until the end of the designated recruitment period.
(2) Deficient applications. The CO will promptly review the
application and notify the applicant in writing if there are
deficiencies that render the application not acceptable for
certification, and afford the applicant a 5 calendar day period (from
date of the employer's receipt) to resubmit a modified application or to
file an appeal of the CO's decision not to approve the application as
acceptable for consideration. Modified applications that fail to cure
deficiencies will be denied.
(3) Amendment of applications. This subpart provides for the
amendment of applications. Where the recruitment is not materially
affected by such amendments, additional positive recruitment will not be
required.
(4) Determinations--(i) Determinations. If the employer has complied
with the criteria for certification, including recruitment of eligible
U.S. workers, the CO must make a determination on the application by 30
days before the first date the employer requires the services of the H-
2A workers. An employer's failure to comply with any of the
certification criteria or to cure deficiencies identified by the CO may
[[Page 500]]
lengthen the time required for processing, resulting in a final
determination less than 30 days prior to the stated date of need.
(ii) Certified applications. This subpart provides that an
application for temporary agricultural labor certification will be
certified if the CO finds that the employer has not offered and does not
intend to offer foreign workers higher wages, better working conditions,
or fewer restrictions than those offered and afforded to U.S. workers;
that sufficient U.S. workers who are able, willing, qualified, and
eligible will not be available at the time and place needed to perform
the work for which H-2A workers are being requested; and that the
employment of such nonimmigrants will not adversely affect the wages and
working conditions of similarly employed U.S. workers.
(iii) Fees--(A) Amount. This subpart provides that each employer
(except joint employer associations) of H-2A workers will pay the
appropriate fees to the Department for each temporary agricultural labor
certification received.
(B) Timeliness of payment. The fee must be received by the CO no
later than 30 calendar days after the granting of each temporary
agricultural labor certification. Fees received any later are untimely.
A persistent or prolonged failure to pay fees in a timely manner is a
substantial program violation which may result in the denial of future
temporary agricultural labor certifications and/or program debarment.
(iv) Denied applications. This subpart provides that if the
application for temporary agricultural labor certification is denied, in
whole or in part, the employer may seek expedited review of the denial,
or a de novo hearing, by an administrative law judge as provided in this
subpart.
(b) Transition of filing procedures from current regulations--(1)
Compliance with these regulations. Employers with a date of need for H-
2A workers for temporary or seasonal agricultural services on or after
January 1, 2010 must comply with all of the obligations and assurances
required in this subpart.
(2) Transition from former regulations. Employers with a date of
need for H-2A workers for temporary or seasonal agricultural services
prior to January 1, 2010 will file applications in the following manner:
(i) Obtaining required wage rate. An employer will not obtain an
offered wage rate through the NPC prior to filing an application, but
will complete and submit Form ETA-9142, Application for Temporary
Employment Certification no less than 45 days prior to their date of
need. The employer will simultaneously submit Form ETA-790 Agricultural
and Food Processing Clearance Order, along with the Application for
Temporary Employment Certification, directly to the NPC having
jurisdiction over H-2A applications.
(ii) Pre-filing activities. Activities required to be conducted
prior to filing under the final rule will be conducted post-filing
during this transition period. The employer will be expected to make
attestations in its application applicable to its future activities
concerning recruitment, payment of the offered wage rate, etc. Employers
will not be required to complete an initial recruitment report for
submission with the application, but will be required to complete a
recruitment report for submission to the NPC prior to certification, and
will also be required to complete a final recruitment report covering
the entire recruitment period.
(iii) Acceptance of application. Upon receipt, the NPC will provide
the employer with the wage rate to be offered, at a minimum, by the
employer, and will process the application in a manner consistent with
new Sec. 655.107, issuing a notification of deficiencies for any
curable deficiencies within 7 calendar days.
(iv) Processing of application. Once the application and job order
have been accepted, the NPC will transmit a copy of the job order to the
SWA(s) serving the area of intended employment to initiate intrastate
and interstate clearance, request that the SWA(s) schedule an inspection
of the housing, and provide instructions to the employer to commence
positive recruitment in a manner consistent with Sec. 655.102(d)(2)
through (4). The NPC will designate labor supply States during this
period on a case-by-case basis. Such designations must be based on
information
[[Page 501]]
provided by State agencies or by other sources, and will to the extent
information is available take into account the success of recent efforts
by out-of-State employers to recruit in that State.
(c) Definitions of terms used in this subpart. For the purposes of
this subpart:
Administrative Law Judge (ALJ) means a person within the DOL's
Office of Administrative Law Judges appointed pursuant to 5 U.S.C. 3105,
or a panel of such persons designated by the Chief Administrative Law
Judge from the Board of Alien Labor Certification Appeals (BALCA)
established by part 656 of this chapter, which will hear and decide
appeals as set forth in Sec. 655.115.
Administrator, OFLC means the primary official of the Office of
Foreign Labor Certification (OFLC), or the Administrator, OFLC 's
designee.
Adverse effect wage rate (AEWR) means the minimum wage rate that the
Administrator, OFLC has determined must be offered and paid to every H-
2A worker employed under the DOL-approved Application for Temporary
Employment Certification in a particular occupation and/or area, as well
as to U.S. workers hired by employers into corresponding employment
during the H-2A recruitment period, to ensure that the wages of
similarly employed U.S. workers will not be adversely affected.
Agent means a legal entity or person, such as an association of
agricultural employers, or an attorney for an association, that:
(1) Is authorized to act on behalf of the employer for temporary
agricultural labor certification purposes;
(2) Is not itself an employer, or a joint employer, as defined in
this paragraph (c) of this section with respect to a specific
application; and
(3) Is not under suspension, debarment, expulsion, or disbarment
from practice before any court or the Department, the Board of
Immigration Appeals, the immigration judges, or the Department of
Homeland Security (DHS) under 8 CFR 292.3 or 1003.101.
Agricultural association means any nonprofit or cooperative
association of farmers, growers, or ranchers (including but not limited
to processing establishments, canneries, gins, packing sheds, nurseries,
or other fixed-site agricultural employers), incorporated or qualified
under applicable State law, that recruits, solicits, hires, employs,
furnishes, houses or transports any worker that is subject to sec. 218
of the INA. An agricultural association may act as the agent of an
employer for purposes of filing an Application for Temporary Employment
Certification, and may also act as the sole or joint employer of H-2A
workers.
Application for Temporary Employment Certification means the Office
of Management and Budget (OMB)-approved form submitted by an employer to
secure a temporary agricultural labor certification determination from
DOL. A complete submission of the Application for Temporary Employment
Certification includes both the form and the employer's initial
recruitment report.
Area of intended employment means the geographic area within normal
commuting distance of the place (worksite address) of the job
opportunity for which the certification is sought. There is no rigid
measure of distance which constitutes a normal commuting distance or
normal commuting area, because there may be widely varying factual
circumstances among different areas (e.g., average commuting times,
barriers to reaching the worksite, quality of the regional
transportation network, etc.). If the place of intended employment is
within a Metropolitan Statistical Area (MSA), including a multistate
MSA, any place within the MSA is deemed to be within normal commuting
distance of the place of intended employment. The borders of MSAs are
not controlling in the identification of the normal commuting area; a
location outside of an MSA may be within normal commuting distance of a
location that is inside (e.g., near the border of) the MSA.
Attorney means any person who is a member in good standing of the
bar of the highest court of any State, possession, territory, or
commonwealth of the U.S., or the District of Columbia, and who is not
under suspension, debarment, expulsion, or disbarment from practice
before any court or the Department, the Board of Immigration Appeals,
the immigration judges, or DHS under 8 CFR. 292.3 or 1003.101.
[[Page 502]]
Such a person is permitted to act as an agent or attorney for an
employer and/or foreign worker under this subpart.
Certifying Officer (CO) means the person designated by the
Administrator, OFLC to make determinations on applications filed under
the H-2A program.
Chief Administrative Law Judge means the chief official of the DOL
Office of Administrative Law Judges or the Chief Administrative Law
Judge's designee.
Date of need means the first date the employer requires the services
of H-2A worker as indicated in the employer's Application for Temporary
Employment Certification.
Department of Homeland Security (DHS) means the Federal agency
having control over certain immigration functions that, through its sub-
agency, United States Citizenship and Immigration Services (USCIS),
makes the determination under the INA on whether to grant visa petitions
filed by employers seeking H-2A workers to perform temporary
agricultural work in the U.S.
DOL or Department means the United States Department of Labor.
Eligible worker means an individual who is not an unauthorized alien
(as defined in sec. 274A(h)(3) of the INA, 8 U.S.C. 1324a(h)(3)) with
respect to the employment in which the worker is engaging.
Employee means employee as defined under the general common law of
agency. Some of the factors relevant to the determination of employee
status include: the hiring party's right to control the manner and means
by which the work is accomplished; the skill required to perform the
work; the source of the instrumentalities and tools for accomplishing
the work; the location of the work; the hiring party's discretion over
when and how long to work; and whether the work is part of the regular
business of the hiring party. Other applicable factors may be considered
and no one factor is dispositive.
Employer means a person, firm, corporation or other association or
organization that:
(1) Has a place of business (physical location) in the U.S. and a
means by which it may be contacted for employment;
(2) Has an employer relationship with respect to H-2A employees or
related U.S. workers under this subpart; and
(3) Possesses, for purposes of filing an Application for Temporary
Employment Certification, a valid Federal Employer Identification Number
(FEIN).
Employment Standards Administration (ESA) means the agency within
DOL that includes the Wage and Hour Division (WHD), and which is charged
with carrying out certain investigative and enforcement functions of the
Secretary under the INA.
Employment Service (ES) refers to the system of Federal and State
entities responsible for administration of the labor certification
process for temporary and seasonal agricultural employment of
nonimmigrant foreign workers. This includes the SWAs and the OFLC,
including the NPCs.
Employment and Training Administration (ETA) means the agency within
the DOL that includes OFLC.
Federal holiday means a legal public holiday as defined at 5 U.S.C.
6103.
Fixed-site employer means any person engaged in agriculture who
meets the definition of an employer as those terms are defined in this
subpart who owns or operates a farm, ranch, processing establishment,
cannery, gin, packing shed, nursery, or other similar fixed-site
location where agricultural activities are performed and who recruits,
solicits, hires, employs, houses, or transports any worker subject to
sec. 218 of the INA or these regulations as incident to or in
conjunction with the owner's or operator's own agricultural operation.
For purposes of this subpart, person includes any individual,
partnership, association, corporation, cooperative, joint stock company,
trust, or other organization with legal rights and duties.
H-2A Labor Contractor (H-2ALC) means any person who meets the
definition of employer under this paragraph (c) of this section and is
not a fixed-site employer, an agricultural association, or an employee
of a fixed-site employer or agricultural association, as those terms are
used in this part, who recruits, solicits, hires, employs, furnishes,
houses, or transports any worker subject to sec. 218 of the INA or these
regulations.
[[Page 503]]
H-2A worker means any temporary foreign worker who is lawfully
present in the U.S. to perform agricultural labor or services of a
temporary or seasonal nature pursuant to sec. 101(a)(15)(H)(ii)(a) of
the INA, as amended.
INA means the Immigration and Nationality Act, as amended, 8 U.S.C.
1101 et seq.
Job offer means the offer made by an employer or potential employer
of H-2A workers to eligible workers describing all the material terms
and conditions of employment, including those relating to wages, working
conditions, and other benefits.
Job opportunity means a job opening for temporary, full-time
employment at a place in the U.S. to which a U.S. worker can be
referred.
Joint employment means that where two or more employers each have
sufficient definitional indicia of employment to be considered the
employer of an employee, those employers will be considered to jointly
employ that employee. Each employer in a joint employment relationship
to an employee is considered a joint employer of that employee.
Occupational Safety and Health Administration (OSHA) means the
organizational component of the Department that assures the safety and
health of America's workers by setting and enforcing standards;
providing training, outreach, and education; establishing partnerships;
and encouraging continual improvement in workplace safety and health
under the Occupational Safety and Health Act, as amended.
Office of Foreign Labor Certification (OFLC) means the
organizational component of the ETA that provides national leadership
and policy guidance and develops regulations and procedures to carry out
the responsibilities of the Secretary under the INA concerning the
admission of foreign workers to the U.S. to perform work described in
sec. 101(a)(15)(H)(ii)(a) of the INA, as amended.
Positive recruitment means the active participation of an employer
or its authorized hiring agent in recruiting and interviewing qualified
and eligible individuals in the area where the employer's job
opportunity is located and any other State designated by the Secretary
as an area of traditional or expected labor supply with respect to the
area where the employer's job opportunity is located, in an effort to
fill specific job openings with U.S. workers.
Prevailing means, with respect to practices engaged in by employers
and benefits other than wages provided by employers, that:
(1) Fifty percent or more of employers in an area and for an
occupation engage in the practice or offer the benefit; but only if
(2) This 50 percent or more of employers also employs in aggregate
50 percent or more of U.S. workers in the occupation and area (including
H-2A and non-H-2A employers for purposes of determinations concerning
the provision of family housing, frequency of wage payments, and workers
supplying their own bedding, but non-H-2A employers only for
determinations concerning the provision of advance transportation).
Prevailing piece rate means that amount that is typically paid to an
agricultural worker per piece (which includes, but is not limited to, a
load, bin, pallet, bag, bushel, etc.), to be determined by the SWA
according to a methodology published by the Department. As is currently
the case, the unit of production will be required to be clearly
described; e.g., a field box of oranges (1\1/2\ bushels), a bushel of
potatoes, and Eastern apple box (1\1/2\ metric bushels), a flat of
strawberries (twelve quarts), etc.
Prevailing hourly wage means the hourly wage determined by the SWA
to be prevailing in the area in accordance with State-based wage
surveys.
Representative means a person or entity employed by, or duly
authorized to act on behalf of, the employer with respect to activities
entered into for, and/or attestations made with respect to, the
Application for Temporary Employment Certification.
Secretary means the Secretary of the United States Department of
Labor, or the Secretary's designee.
Secretary of Homeland Security means the chief official of the
United States Department of Homeland Security (DHS) or the Secretary of
Homeland Security's designee.
[[Page 504]]
Secretary of State means the chief official of the United States
Department of State (DOS) or the Secretary of State's designee.
State Workforce Agency (SWA) means the State government agency that
receives funds pursuant to the Wagner-Peyser Act to administer the
public labor exchange delivered through the State's One-Stop delivery
system in accordance with the Wagner-Peyser Act at 29 U.S.C. 49 et seq.
Separately, SWAs receive ETA grants, administered by OFLC, to assist
them in performing certain activities related to foreign labor
certification, including conducting housing inspections.
Strike means a labor dispute wherein employees engage in a concerted
stoppage of work (including stoppage by reason of the expiration of a
collective-bargaining agreement) or engage in any concerted slowdown or
other concerted interruption of operation. Whether a job opportunity is
vacant by reason of a strike or lock out will be determined by
evaluating for each position identified as vacant in the Application for
Temporary Employment Certification whether the specific vacancy has been
caused by the strike or lock out.
Successor in interest means that, in determining whether an employer
is a successor in interest, the factors used under Title VII of the
Civil Rights Act and the Vietnam Era Veterans' Readjustment Assistance
Act will be considered. When considering whether an employer is a
successor for purposes of Sec. 655.118, the primary consideration will
be the personal involvement of the firm's ownership, management,
supervisors, and others associated with the firm in the violations
resulting in a debarment recommendation. Normally, wholly new management
or ownership of the same business operation, one in which the former
management or owner does not retain a direct or indirect interest, will
not be deemed to be a successor in interest for purposes of debarment. A
determination of whether or not a successor in interest exists is based
on the entire circumstances viewed in their totality. The factors to be
considered include:
(1) Substantial continuity of the same business operations;
(2) Use of the same facilities;
(3) Continuity of the work force;
(4) Similarity of jobs and working conditions;
(5) Similarity of supervisory personnel;
(6) Similarity in machinery, equipment, and production methods;
(7) Similarity of products and services; and
(8) The ability of the predecessor to provide relief.
Temporary agricultural labor certification means the certification
made by the Secretary with respect to an employer seeking to file with
DHS a visa petition to employ one or more foreign nationals as an H-2A
worker, pursuant to secs. 101(a)(15)(H)(ii)(a), 214(a) and (c), and 218
of the INA that:
(1) There are not sufficient workers who are able, willing, and
qualified, and who will be available at the time and place needed, to
perform the agricultural labor or services involved in the petition, and
(2) The employment of the foreign worker in such agricultural labor
or services will not adversely affect the wages and working conditions
of workers in the U.S. similarly employed (8 U.S.C.
1101(a)(15)(H)(ii)(a), 1184(a) and (c), and 1188).
United States (U.S.), when used in a geographic sense, means the
continental United States, Alaska, Hawaii, the Commonwealth of Puerto
Rico, and the territories of Guam, the Virgin Islands, and, as of the
transition program effective date, as defined in the Consolidated
Natural Resources Act of 2008, Public Law 110-229, Title VII, the
Commonwealth of the Northern Mariana Islands.
United States Citizenship and Immigration Services (USCIS) means the
Federal agency making the determination under the INA whether to grant
petitions filed by employers seeking H-2A workers to perform temporary
agricultural work in the U.S.
United States worker (U.S. worker) means a worker who is
(1) A citizen or national of the U.S., or
(2) An alien who is lawfully admitted for permanent residence in the
U.S., is admitted as a refugee under sec. 207 of the INA, is granted
asylum under sec.
[[Page 505]]
208 of the INA, or is an immigrant otherwise authorized (by the INA or
by DHS) to be employed in the U.S.
Wages means all forms of cash remuneration to a worker by an
employer in payment for personal services.
Within [number and type] days means, for purposes of determining an
employer's compliance with the timing requirements for appeals and
requests for review, a period that begins to run on the first business
day after the Department sends a notice to the employer by means
normally assuring next-day delivery, and will end on the day that the
employer sends whatever communication is required by these rules back to
the Department, as evidenced by a postal mark or other similar receipt.
Work contract means all the material terms and conditions of
employment relating to wages, hours, working conditions, and other
benefits, required by the applicable regulations in Subpart B of 20 CFR
part 655, Labor Certification for Temporary Agricultural Employment of
H-2A Aliens in the U.S. (H-2A Workers), or these regulations, including
those terms and conditions attested to by the H-2A employer, which
contract between the employer and the worker may be in the form of a
separate written document. In the absence of a separate written work
contract incorporating the required terms and conditions of employment,
agreed to by both the employer and the worker, the work contract at a
minimum shall be the terms of the job order, as provided in 20 CFR part
653, Subpart F, and covered provisions of the work contract shall be
enforced in accordance with these regulations.
(d) Definition of agricultural labor or services of a temporary or
seasonal nature. For the purposes of this subpart means the following:
(1) Agricultural labor or services, pursuant to sec.
101(a)(15)(H)(ii)(a) of the INA at 8 U.S.C. 1101(a)(15)(H)(ii)(a), is
defined as:
(i) Agricultural labor as defined and applied in sec. 3121(g) of the
Internal Revenue Code of 1954 at 26 U.S.C. 3121(g);
(ii) Agriculture as defined and applied in sec. 3(f) of the Fair
Labor Standards Act of 1938 (FLSA) at 29 U.S.C. 203(f). Work performed
by H-2A workers, or workers in corresponding employment, that is not
defined as agriculture in sec. 3(f) is subject to the provisions of the
FLSA as provided therein, including the overtime provisions in sec. 7(a)
29 U.S.C. 207(a);
(iii) The pressing of apples for cider on a farm;
(iv) Logging employment; or
(v) Handling, planting, drying, packing, packaging, processing,
freezing, grading, storing, or delivering to storage or to market or to
a carrier for transportation to market, in its unmanufactured state, any
agricultural or horticultural commodity while in the employ of the
operator of a farm where no H-2B workers are employed to perform the
same work at the same establishment; or
(vi) Other work typically performed on a farm that is not
specifically listed on the Application for Temporary Employment
Certification and is minor (i.e., less than 20 percent of the total time
worked on the job duties and activities that are listed on the
Application for Temporary Employment Certification) and incidental to
the agricultural labor or services for which the H-2A worker was sought.
(2) An occupation included in either of the statutory definitions
cited in paragraphs (d)(1)(i) and (ii) of this section is agricultural
labor or services, notwithstanding the exclusion of that occupation from
the other statutory definition.
(i) Agricultural labor. For purposes of paragraph (d)(1)(i) of this
section means all services performed:
(A) On a farm, in the employ of any person, in connection with
cultivating the soil, or in connection with raising or harvesting any
agricultural or horticultural commodity, including the raising,
shearing, feeding, caring for, training, and management of livestock,
bees, poultry, and furbearing animals and wildlife;
(B) In the employ of the owner or tenant or other operator of a
farm, in connection with the operation or maintenance of such farm and
its tools and equipment, or in salvaging timber or clearing land of
brush and other debris left by a hurricane, if the major part of such
service is performed on a farm;
[[Page 506]]
(C) In connection with the production or harvesting of any commodity
defined as an agricultural commodity in sec. 15(g) of the Agricultural
Marketing Act, as amended at 12 U.S.C. 1141j, or in connection with the
ginning of cotton, or in connection with the operation or maintenance of
ditches, canals, reservoirs, or waterways, not owned or operated for
profit, used exclusively for supplying and storing water for farming
purposes;
(D)(1) In the employ of the operator of a farm in handling,
planting, drying, packing, packaging, processing, freezing, grading,
storing, or delivering to storage or to market or to a carrier for
transportation to market, in its unmanufactured state, any agricultural
or horticultural commodity, but only if such operator produced more than
one-half of the commodity with respect to which such service is
performed;
(2) In the employ of a group of operators of farms (other than a
cooperative organization) in the performance of service described in
paragraph (d)(2)(i)(D)(1) of this section, but only if such operators
produced all of the commodity with respect to which such service is
performed. For purposes of this paragraph, any unincorporated group of
operators will be deemed a cooperative organization if the number of
operators comprising such group is more than 20 at any time during the
calendar quarter in which such service is performed;
(3) The provisions of paragraphs (d)(2)(i)(D)(1) and (2) of this
section do not apply to services performed in connection with commercial
canning or commercial freezing or in connection with any agricultural or
horticultural commodity after its delivery to a terminal market for
distribution for consumption; or
(4) On a farm operated for profit if such service is not in the
course of the employer's trade or business and is not domestic service
in a private home of the employer.
(E) For purposes of (d)(2)(i) of this section, the term farm
includes stock, dairy, poultry, fruit, fur-bearing animal, and truck
farms, plantations, ranches, nurseries, ranges, greenhouses or other
similar structures used primarily for the raising of agricultural or
horticultural commodities, and orchards. See sec. 3121(g) of the
Internal Revenue Code of 1986 at 26 U.S.C. 3121(g).
(ii) Agriculture. For purposes of paragraph (d)(1)(ii) of this
section agriculture means farming in all its branches and among other
things includes the cultivation and tillage of the soil, dairying, the
production, cultivation, growing, and harvesting of any agricultural or
horticultural commodities (including commodities as defined as
agricultural commodities in 12 U.S.C. 1141j(g)), the raising of
livestock, bees, fur-bearing animals, or poultry, and any practices
(including any forestry or lumbering operations) performed by a farmer
or on a farm as an incident to or in conjunction with such farming
operations, including preparation for market, delivery to storage or to
market or to carriers for transportation to market. See 29 U.S.C.
203(f), as amended.
(iii) Agricultural commodity. For purposes of paragraph (d)(2)(ii)
of this section agricultural commodity includes, in addition to other
agricultural commodities, crude gum (oleoresin) from a living tree, and
gum spirits of turpentine and gum rosin as processed by the original
producer of the crude gum (oleoresin) from which derived. Gum spirits of
turpentine means spirits of turpentine made from gum (oleoresin) from a
living tree and gum rosin means rosin remaining after the distillation
of gum spirits of turpentine. See 12 U.S.C. 1141j(g), sec. 15(g) of the
Agricultural Marketing Act, as amended, and 7 U.S.C. 92.
(3) Of a temporary or seasonal nature--(i) On a seasonal or other
temporary basis. For the purposes of this subpart, of a temporary or
seasonal nature means on a seasonal or other temporary basis, as defined
in the WHD's regulation at 29 CFR 500.20 under the Migrant and Seasonal
Agricultural Worker Protection Act (MSPA).
(ii) MSPA definition. The definition of on a seasonal or other
temporary basis found in MSPA is summarized as follows:
(A) Labor is performed on a seasonal basis where, ordinarily, the
employment pertains to or is of the kind exclusively performed at
certain seasons
[[Page 507]]
or periods of the year and which, from its nature, may not be continuous
or carried on throughout the year. A worker who moves from one seasonal
activity to another, while employed in agriculture or performing
agricultural labor, is employed on a seasonal basis even though the
worker may continue to be employed during a major portion of the year.
(B) A worker is employed on other temporary basis where he or she is
employed for a limited time only or the worker's performance is
contemplated for a particular piece of work, usually of short duration.
Generally, employment which is contemplated to continue indefinitely is
not temporary.
(C) On a seasonal or other temporary basis does not include (i) the
employment of any foreman or other supervisory employee who is employed
by a specific agricultural employer or agricultural association
essentially on a year round basis; or (ii) the employment of any worker
who is living at his or her permanent place of residence, when that
worker is employed by a specific agricultural employer or agricultural
association on essentially a year round basis to perform a variety of
tasks for his or her employer and is not primarily employed to do field
work.
(iii) Temporary. For the purposes of this subpart, the definition of
``temporary'' in paragraph (d)(3) of this section refers to any job
opportunity covered by this subpart where the employer needs a worker
for a position for a limited period of time, including, but not limited
to, a peakload need, which is generally less than 1 year, unless the
original temporary agricultural labor certification is extended pursuant
to Sec. 655.110.
[73 FR 77207, Dec. 18, 2008, as amended at 74 FR 17601, Apr. 16, 2009]
Sec. 655.1301 Applications for temporary employment certification in
agriculture.
(a) Application filing requirements. (1) An employer that desires to
apply for temporary employment certification of one or more nonimmigrant
foreign workers must file a completed DOL Application for Temporary
Employment Certification form and, unless a specific exemption applies,
the initial recruitment report. If an association of agricultural
producers files the application, the association must identify whether
it is the sole employer, a joint employer with its employer-member
employers, or the agent of its employer-members. The association must
retain documentation substantiating the employer or agency status of the
association and be prepared to submit such documentation to the CO in
the event of an audit.
(2) If an H-2ALC intends to file an application, the H-2ALC must
meet all of the requirements of the definition of employer in Sec.
655.100(b), and comply with all the assurances, guarantees, and other
requirements contained in this part and in part 653, subpart F, of this
chapter. The H-2ALC must have a place of business (physical location) in
the U.S. and a means by which it may be contacted for employment. H-2A
workers employed by an H-2ALC may not perform services for a fixed-site
employer unless the H-2ALC is itself providing the housing and
transportation required by Sec. 655.104(d) and (h), or has filed a
statement confirming that the fixed-site employer will provide compliant
housing and/or transportation, as required by Sec. 655.106, with the
OFLC, for each fixed-site employer listed on the application. The H-2ALC
must retain a copy of the statement of compliance required by Sec.
655.106(b)(6).
(3) An association of agricultural producers may submit a master
application covering a variety of job opportunities available with a
number of employers in multiple areas of intended employment, just as
though all of the covered employers were in fact a single employer, as
long as a single date of need is provided for all workers requested by
the application and the combination of job opportunities is supported by
an explanation demonstrating a business reason for the combination. The
association must identify on the Application for Temporary Employment
Certification, by name and address, each employer that will employ H-2A
workers. If the association is acting solely as an agent, each employer
will receive a separate labor certification.
(b) Filing. The employer may send the Application for Temporary
Employment
[[Page 508]]
Certification and all supporting documentation by U.S. Mail or private
mail courier to the NPC. The Department will publish a Notice in the
Federal Register identifying the address(es), and any future address
changes, to which applications must be mailed, and will also post these
addresses on the DOL Internet Web site at http://
www.foreignlaborcert.doleta.gov/. The form must bear the original
signature of the employer (and that of the employer's authorized
attorney or agent if the employer is represented by an attorney or
agent). An association filing a master application as a joint employer
may sign on behalf of its employer members. The Department may also
require applications to be filed electronically in addition to or
instead of by mail.
(c) Timeliness. A completed Application for Temporary Employment
Certification must be filed no less than 45 calendar days before date of
need.
(d) Emergency situations--(1) Waiver of time period and required
pre-filing activity. The CO may waive the time period for filing and
pre-filing wage and recruitment requirements set forth in Sec. 655.102,
along with their associated attestations, for employers who did not make
use of temporary alien agricultural workers during the prior year's
agricultural season or for any employer that has other good and
substantial cause (which may include unforeseen changes in market
conditions), provided that the CO can timely make the determinations
required by Sec. 655.109(b).
(2) Employer requirements. The employer requesting a waiver of the
required time period and pre-filing wage and recruitment requirements
must submit to the NPC a completed Application for Temporary Employment
Certification, a completed job offer on the ETA Form 790 Agricultural
and Food Processing Clearance Order, and a statement justifying the
request for a waiver of the time period requirement. The statement must
indicate whether the waiver request is due to the fact that the employer
did not use H-2A workers during the prior agricultural season or whether
the request is for other good and substantial cause. If the waiver is
requested for good and substantial cause, the employer's statement must
also include detailed information describing the good and substantial
cause which has necessitated the waiver request. Good and substantial
cause may include, but is not limited to, such things as the substantial
loss of U.S. workers due to weather-related activities or other reasons,
unforeseen events affecting the work activities to be performed,
pandemic health issues, or similar conditions.
(3) Processing of applications. The CO shall promptly transmit the
job order, on behalf of the employer, to the SWA serving the area of
intended employment and request an expedited review of the job order in
accordance with Sec. 655.102(e) and an inspection of housing in
accordance with Sec. 655.104(d)(6)(iii). The CO shall process the
application and job order in accordance with Sec. 655.107, issue a wage
determination in accordance with Sec. 655.108 and, upon acceptance,
require the employer to engage in positive recruitment consistent with
Sec. 655.102(d)(2), (3), and (4). The CO shall require the SWA to
transmit the job order for interstate clearance consistent with Sec.
655.102(f). The CO shall specify a date on which the employer will be
required to submit a recruitment report in accordance with Sec.
655.102(k). The CO will make a determination on the application in
accordance with Sec. 655.109.
Sec. 655.1302 Required pre-filing activity.
(a) Time of filing of application. An employer may not file an
Application for Temporary Employment Certification before all of the
pre-filing recruitment steps set forth in this section have been fully
satisfied, except where specifically exempted from some or all of those
requirements by these regulations. Modifications to these requirements
for H-2ALCs are set forth in Sec. 655.106.
(b) General attestation obligation. An employer must attest on the
Application for Temporary Employment Certification that it will comply
with all of the assurances and obligations of this subpart and to
performing all necessary steps of the recruitment process as specified
in this section.
[[Page 509]]
(c) Retention of documentation. An employer filing an Application
for Temporary Employment Certification must maintain documentation of
its advertising and recruitment efforts as required in this subpart and
be prepared to submit this documentation in response to a Notice of
Deficiency from the CO prior to the CO rendering a Final Determination,
or in the event of an audit. The documentation required in this subpart
must be retained for a period of no less than 3 years from the date of
the certification. There is no record retention requirement for any
application (and supporting documentation) after the Secretary has made
a final decision to deny the application.
(d) Positive recruitment steps. An employer filing an application
must:
(1) Submit a job order to the SWA serving the area of intended
employment;
(2) Run two print advertisements (one of which must be on a Sunday,
except as provided in paragraph (g) of this section);
(3) Contact former U.S. employees who were employed within the last
year as described in paragraph (h) of this section; and
(4) Based on an annual determination made by the Secretary, as
described in paragraph (i) of this section, recruit in all States
currently designated as a State of traditional or expected labor supply
with respect to each area of intended employment in which the employer's
work is to be performed as required in paragraph (i)(2) of this section.
(e) Job order. (1) The employer must submit a job order to the SWA
serving the area of intended employment no more than 75 calendar days
and no fewer than 60 calendar days before the date of need for
intrastate and interstate clearance, identifying it as a job order to be
placed in connection with a future application for H-2A workers. If the
job opportunity is located in more than one State, the employer may
submit a job order to any one of the SWAs having jurisdiction over the
anticipated worksites. Where a future master application will be filed
by an association of agricultural employers, the SWA will prepare a
single job order in the name of the association on behalf of all
employers that will be duly named on the Application for Temporary
Employment Certification. Documentation of this step by the applicant is
satisfied by maintaining proof of posting from the SWA identifying the
job order number(s) with the start and end dates of the posting of the
job order.
(2) The job order submitted to the SWA must satisfy all the
requirements for newspaper advertisements contained in Sec. 655.103 and
comply with the requirements for agricultural clearance orders in 20 CFR
part 653 Subpart F and the requirements set forth in Sec. 655.104.
(3) The SWA will review the contents of the job order as provided in
20 CFR part 653 Subpart F and will work with the employer to address any
deficiencies, except that the order may be placed prior to completion of
the housing inspection required by 20 CFR 653.501(d)(6) where necessary
to meet the timeframes required by statute and regulation. However, the
SWA must ensure that housing within its jurisdiction is inspected as
expeditiously as possible thereafter. Any issue with regard to whether a
job order may properly be placed in the job service system that cannot
be resolved with the applicable SWA may be brought to the attention of
the NPC, which may direct that the job order be placed in the system
where the NPC determines that the applicable program requirements have
been met. If the NPC concludes that the job order is not acceptable, it
shall so inform the employer using the procedures applicable to a denial
of certification set forth in Sec. 655.109(e).
(f) Intrastate/Interstate recruitment. (1) Upon receipt and
acceptance of the job order, the SWA must promptly place the job order
in intrastate clearance on its active file and begin recruitment of
eligible U.S. workers. The SWA receiving the job order under paragraph
(e) of this section will promptly transmit, on behalf of the employer, a
copy of its active job order to all States listed in the job order as
anticipated worksites. The SWA must also transmit a copy of all active
job orders to no fewer than three States, which must include those
States, if any, designated by the Secretary as traditional or expected
labor
[[Page 510]]
supply States (``out-of-State recruitment States'') for the area of
intended employment in which the employer's work is to be performed as
defined in paragraph (i) of this section.
(2) Unless otherwise directed by the CO, the SWA must keep the job
order open for interstate clearance until the end of the recruitment
period, as set forth in Sec. 655.102(f)(3). Each of the SWAs to which
the job order was referred must keep the job order open for that same
period of time and must refer each eligible U.S. worker who applies (or
on whose behalf an application is made) for the job opportunity.
(3)(i) For the first 5 years after the effective date of this rule,
the recruitment period shall end 30 days after the first date the
employer requires the services of the H-2A workers, or on the last day
the employer requires the services of H-2A workers in the applicable
area of intended employment, whichever is sooner (the 30-day rule).
During that 5-year period, the Department will endeavor to study the
costs and benefits of providing for continuing recruitment of U.S.
workers after the H-2A workers have already entered the country. Unless
prior to the expiration of the 5-year period the Department conducts a
study and publishes a notice determining that the economic benefits of
such extended recruitment period outweigh its costs, the recruitment
period will, after the expiration of the 5-year period, end on the first
date the employer requires the services of the H-2A worker.
(ii) Withholding of U.S. workers prohibited. The provisions of this
paragraph shall apply so as long as the 30-day rule is in place.
(A) Complaints. Any employer who has reason to believe that a person
or entity has willfully and knowingly withheld U.S. workers prior to the
arrival at the job site of H-2A workers in order to force the hiring of
U.S. workers during the 30-day rule under paragraph (f)(3)(i) of this
section may submit a written complaint to the CO. The complaint must
clearly identify the person or entity who the employer believes has
withheld the U.S. workers, and must specify sufficient facts to support
the allegation (e.g., dates, places, numbers and names of U.S. workers)
which will permit an investigation to be conducted by the CO.
(B) Investigations. The CO must immediately investigate the
complaint. The investigation must include interviews with the employer
who has submitted the complaint, the person or entity named as
responsible for withholding the U.S. workers, and the individual U.S.
workers whose availability has purportedly been withheld.
(C) Written findings. Where the CO determines, after conducting the
interviews required by this paragraph, that the employer's complaint is
valid and justified, the CO shall immediately suspend the application of
the 30-day rule under paragraph (f)(3)(i) of this section to the
employer. The CO's determination shall be the final decision of the
Secretary.
(g) Newspaper advertisements. (1) During the period of time that the
job order is being circulated by the SWA(s) for interstate clearance
under paragraph (f) of this section, the employer must place an
advertisement on 2 separate days, which may be consecutive, one of which
must be a Sunday (except as provided in paragraph (g)(2) of this
section), in a newspaper of general circulation serving the area of
intended employment that has a reasonable distribution and is
appropriate to the occupation and the workers likely to apply for the
job opportunity. Both newspaper advertisements must be published only
after the job order is accepted by the SWA for intrastate/interstate
clearance.
(2) If the job opportunity is located in a rural area that does not
have a newspaper with a Sunday edition, the employer must, in place of a
Sunday edition, advertise in the regularly published daily edition with
the widest circulation in the area of intended employment.
(3) The newspaper advertisements must satisfy the requirements of
Sec. Sec. 655.103 and 655.104. The employer must maintain copies of
newspaper pages (with date of publication and full copy of ad), or tear
sheets of the pages of the publication in which the advertisements
appeared, or other proof of publication containing the text of the
printed advertisements and the dates
[[Page 511]]
of publication furnished by the newspaper.
(4) If a professional, trade or ethnic publication is more
appropriate for the occupation and the workers likely to apply for the
job opportunity than a general circulation newspaper, and is the most
likely source to bring responses from able, willing, qualified, and
available U.S. workers, the employer may use a professional, trade or
ethnic publication in place of one of the newspaper advertisements, but
may not replace the Sunday advertisement (or the substitute required by
paragraph (g)(2) of this section).
(h) Contact with former U.S. employees. The employer must contact by
mail or other effective means its former U.S. employees (except those
who were dismissed for cause, abandoned the worksite, or were provided
documentation at the end of their previous period of employment
explaining the lawful, job-related reasons they would not be re-
contacted) employed by the employer in the occupation at the place of
employment during the previous year and solicit their return to the job.
The employer must maintain copies of correspondence signed and dated by
the employer or, if other means are used, maintain dated logs
demonstrating that each worker was contacted, including the phone
number, e-mail address, or other means that was used to make contact.
The employer must list in the recruitment report any workers who did not
return to the employ of the employer because they were either unable or
unwilling to return to the job or did not respond to the employer's
request, and must retain documentation, if provided by the worker,
showing evidence of their inability, unwillingness, or non-
responsiveness.
(i) Additional positive recruitment. (1) Each year, the Secretary
will make a determination with respect to each State whether there are
other States (``traditional or expected labor supply States'') in which
there are a significant number of able and qualified workers who, if
recruited, would be willing to make themselves available for work in
that State, as well as which newspapers in each traditional or expected
labor supply State that the employer may use to fulfill its obligation
to run a newspaper advertisement in that State. Such determination must
be based on information provided by State agencies or by other sources
within the 120 days preceding the determination (which will be solicited
by notice in the Federal Register), and will to the extent information
is available take into account the success of recent efforts by out-of-
State employers to recruit in that State. The Secretary will not
designate a State as a traditional or expected labor supply State if the
State has a significant number of employers that are recruiting for U.S.
workers for the same types of occupations and comparable work. The
Secretary's annual determination as to traditional or expected labor
supply States, if any, from which applicants from each State must
recruit will be published in the Federal Register and made available
through the ETA Web site.
(2) Each employer must engage in positive recruitment in those
States designated in accordance with paragraph (i)(1) with respect to
the State in which the employer's work is to be performed. Such
recruitment will consist of one newspaper advertisement in each State in
one of the newspapers designated by the Secretary, published within the
same period of time as the newspaper advertisements required under
paragraph (g) of this section. An employer will not be required to
conduct positive recruitment in more than three States designated in
accordance with paragraph (i)(1) for each area of intended employment
listed on the employer's application. The advertisement must refer
applicants to the SWA nearest the area in which the advertisement was
placed.
(j) Referrals of U.S. workers. SWAs may only refer for employment
individuals for whom they have verified identity and employment
authorization through the process for employment verification of all
workers that is established by INA sec. 274A(b). SWAs must provide
documentation certifying the employment verification that satisfies the
standards of INA sec. 274A(a)(5) and its implementing regulations at 8
CFR 274a.6.
(k) Recruitment report. (1) No more than 50 days before the date of
need the
[[Page 512]]
employer must prepare, sign, and date a written recruitment report. The
recruitment report must be submitted with the Application for Temporary
Employment Certification. The recruitment report must:
(i) List the original number of openings for which the employer
recruited;
(ii) Identify each recruitment source by name;
(iii) State the name and contact information of each U.S. worker who
applied or was referred to the job opportunity up to the date of the
preparation of the recruitment report, and the disposition of each
worker;
(iv) Confirm that former employees were contacted and by what means;
and
(v) If applicable, explain the lawful job-related reason(s) for not
hiring any U.S. workers who applied for the position.
(2) The employer must update the recruitment report within 48 hours
of the date that is the end of the recruitment period as specified in
Sec. 655.102(f)(3). This supplement to the recruitment report must meet
the requirements of paragraph (k)(1) of this section. The employer must
sign and date this supplement to the recruitment report and retain it
for a period of no less than 3 years. The supplement to the recruitment
report must be provided in the event of an audit.
(3) The employer must retain resumes (if provided) of, and evidence
of contact with (which may be in the form of an attestation), each U.S.
worker who applied or was referred to the job opportunity. Such resumes
and evidence of contact must be retained along with the recruitment
report and the supplemental recruitment report for a period of no less
than 3 years, and must be provided in response to a Notice of Deficiency
or in the event of an audit.
Sec. 655.1303 Advertising requirements.
All advertising conducted to satisfy the required recruitment steps
under Sec. 655.102 before filing the Application for Temporary
Employment Certification must meet the requirements set forth in this
section and at Sec. 655.104 and must contain terms and conditions of
employment which are not less favorable than those that will be offered
to the H-2A workers. All advertising must contain the following
information:
(a) The employer's name and location(s) of work, or in the event
that a master application will be filed by an association, a statement
indicating that the name and location of each member of the association
can be obtained from the SWA of the State in which the advertisement is
run;
(b) The geographic area(s) of employment with enough specificity to
apprise applicants of any travel requirements and where applicants will
likely have to reside to perform the services or labor;
(c) A description of the job opportunity for which certification is
sought with sufficient information to apprise U.S. workers of services
or labor to be performed and the anticipated period of employment of the
job opportunity;
(d) The wage offer, or in the event that there are multiple wage
offers (such as where a master application will be filed by an
association and/or where there are multiple crop activities for a single
employer), the range of applicable wage offers and, where a master
application will be filed by an association, a statement indicating that
the rate(s) applicable to each employer can be obtained from the SWA;
(e) The three-fourths guarantee specified in Sec. 655.104(i);
(f) If applicable, a statement that work tools, supplies, and
equipment will be provided at no cost to the worker;
(g) A statement that housing will be made available at no cost to
workers, including U.S. workers, who cannot reasonably return to their
permanent residence at the end of each working day;
(h) If applicable, a statement that transportation and subsistence
expenses to the worksite will be provided by the employer;
(i) A statement that the position is temporary and a specification
of the total number of job openings the employer intends to fill;
(j) A statement directing applicants to report or send resumes to
the SWA of the State in which the advertisement is run for referral to
the employer;
[[Page 513]]
(k) Contact information for the applicable SWA and the job order
number.
Sec. 655.1304 Contents of job offers.
(a) Preferential treatment of aliens prohibited. The employer's job
offer must offer to U.S. workers no less than the same benefits, wages,
and working conditions that the employer is offering, intends to offer,
or will provide to H-2A workers. Except where otherwise permitted under
this section, no job offer may impose on U.S. workers any restrictions
or obligations that will not be imposed on the employer's H-2A workers.
(b) Job qualifications. Each job qualification listed in the job
offer must not substantially deviate from the normal and accepted
qualifications required by employers that do not use H-2A workers in the
same or comparable occupations and crops.
(c) Minimum benefits, wages, and working conditions. Every job offer
accompanying an H-2A application must include each of the minimum
benefit, wage, and working condition provisions listed in paragraphs (d)
through (q) of this section.
(d) Housing--(1) Obligation to provide housing. The employer must
provide housing at no cost to the worker, except for those U.S. workers
who are reasonably able to return to their permanent residence at the
end of the work day. Housing must be provided through one of the
following means:
(i) Employer-provided housing. Employer-provided housing that meets
the full set of DOL OSHA standards set forth at 29 CFR 1910.142, or the
full set of standards at Sec. Sec. 654.404 through 654.417 of this
chapter, whichever are applicable under Sec. 654.401; or
(ii) Rental and/or public accommodations. Rental or public
accommodations or other substantially similar class of habitation that
meets applicable local standards for such housing. In the absence of
applicable local standards, State standards will apply. In the absence
of applicable local or State standards, DOL OSHA standards at 29 CFR
1910.142 will apply. Any charges for rental housing must be paid
directly by the employer to the owner or operator of the housing. The
employer must document that the housing complies with the local, State,
or Federal housing standards. Such documentation may include but is not
limited to a certificate from a State Department of Health or other
State or local agency or a statement from the manager or owner of the
housing.
(2) Standards for range housing. Housing for workers principally
engaged in the range production of livestock shall meet standards of DOL
OSHA for such housing. In the absence of such standards, range housing
for sheepherders and other workers engaged in the range production of
livestock must meet guidelines issued by ETA.
(3) Deposit charges. Charges in the form of deposits for bedding or
other similar incidentals related to housing must not be levied upon
workers. However, employers may require workers to reimburse them for
damage caused to housing, bedding, or other property by the individual
workers found to have been responsible for damage which is not the
result of normal wear and tear related to habitation.
(4) Charges for public housing. If public housing provided for
migrant agricultural workers under the auspices of a local, county, or
State government is secured by the employer, the employer must pay any
charges normally required for use of the public housing units (but need
not pay for optional, extra services) directly to the housing's
management.
(5) Family housing. When it is the prevailing practice in the area
of intended employment and the occupation to provide family housing,
family housing must be provided to workers with families who request it.
(6) Housing inspection. In order to ensure that the housing provided
by an employer under this section meets the relevant standard:
(i) An employer must make the required attestation, which may
include an attestation that the employer is complying with the
procedures set forth in Sec. 654.403, at the time of filing the
Application for Temporary Employment Certification pursuant to Sec.
655.105(e)(2).
(ii) The employer must make a request to the SWA for a housing
inspection no less than 60 days before the
[[Page 514]]
date of need, except where otherwise provided under this part.
(iii) The SWA must make its determination that the housing meets the
statutory criteria applicable to the type of housing provided prior to
the date on which the Secretary is required to make a certification
determination under INA sec. 218(c)(3)(A), which is 30 days before the
employer's date of need. SWAs must not adopt rules or restrictions on
housing inspections that unreasonably prevent inspections from being
completed in the required time frame, such as rules that no inspections
will be conducted where the housing is already occupied or is not yet
leased. If the employer has attested to and met all other criteria for
certification, and the employer has made a timely request for a housing
inspection under this paragraph, and the SWA has failed to complete a
housing inspection by the statutory deadline of 30 days prior to date of
need, the certification will not be withheld on account of the SWA's
failure to meet the statutory deadline. The SWA must in such cases
inspect the housing prior to or during occupation to ensure it meets
applicable housing standards. If, upon inspection, the SWA determines
the supplied housing does not meet the applicable housing standards, the
SWA must promptly provide written notification to the employer and the
CO. The CO will take appropriate action, including notice to the
employer to cure deficiencies. An employer's failure to cure substantial
violations can result in revocation of the temporary labor
certification.
(7) Certified housing that becomes unavailable. If after a request
to certify housing (but before certification), or after certification of
housing, such housing becomes unavailable for reasons outside the
employer's control, the employer may substitute other rental or public
accommodation housing that is in compliance with the local, State, or
Federal housing standards applicable under paragraph (d)(1)(ii) of this
section and for which the employer is able to submit evidence of such
compliance. The employer must notify the SWA in writing of the change in
accommodations and the reason(s) for such change and provide the SWA
evidence of compliance with the applicable local, State or Federal
safety and health standards, in accordance with the requirements of
paragraph (d)(1)(ii) of this section. The SWA must notify the CO of all
housing changes and of any noncompliance with the standards set forth in
paragraph (d)(1)(ii) of this section. Substantial noncompliance can
result in revocation of the temporary labor certification under Sec.
655.117.
(e) Workers' compensation. The employer must provide workers'
compensation insurance coverage in compliance with State law covering
injury and disease arising out of and in the course of the worker's
employment. If the type of employment for which the certification is
sought is not covered by or is exempt from the State's workers'
compensation law, the employer must provide, at no cost to the worker,
insurance covering injury and disease arising out of and in the course
of the worker's employment that will provide benefits at least equal to
those provided under the State workers' compensation law for other
comparable employment. The employer must retain for 3 years from the
date of certification of the application, the name of the insurance
carrier, the insurance policy number, and proof of insurance for the
dates of need, or, if appropriate, proof of State law coverage.
(f) Employer-provided items. Except as provided in this paragraph,
the employer must provide to the worker, without charge or deposit
charge, all tools, supplies, and equipment required to perform the
duties assigned. The employer may charge the worker for reasonable costs
related to the worker's refusal or negligent failure to return any
property furnished by the employer or due to such worker's willful
damage or destruction of such property. Where it is a common practice in
the particular area, crop activity and occupation for workers to provide
tools and equipment, with or without the employer reimbursing the
workers for the cost of providing them, such an arrangement will be
permitted, provided that the requirements of sec. 3(m) of the FLSA at 29
U.S.C. 203(m) are met. Section 3(m) does not permit deductions for tools
or equipment primarily
[[Page 515]]
for the benefit of the employer that reduce an employee's wage below the
wage required under the minimum wage, or, where applicable, the overtime
provisions of the FLSA.
(g) Meals. The employer either must provide each worker with three
meals a day or must furnish free and convenient cooking and kitchen
facilities to the workers that will enable the workers to prepare their
own meals. Where the employer provides the meals, the job offer must
state the charge, if any, to the worker for such meals. The amount of
meal charges is governed by Sec. 655.114.
(h) Transportation; daily subsistence--(1) Transportation to place
of employment. If the employer has not previously advanced such
transportation and subsistence costs to the worker or otherwise provided
such transportation or subsistence directly to the worker by other means
and if the worker completes 50 percent of the work contract period, the
employer must pay the worker for reasonable costs incurred by the worker
for transportation and daily subsistence from the place from which the
worker has departed to the employer's place of employment. For an H-2A
worker coming from outside of the U.S., the place from which the worker
has departed is the place of recruitment, which the Department
interprets to mean the appropriate U.S. consulate or port of entry. When
it is the prevailing practice of non-H-2A agricultural employers in the
occupation in the area to do so, or when the employer extends such
benefits to similarly situated H-2A workers, the employer must advance
the required transportation and subsistence costs (or otherwise provide
them) to U.S. workers. The amount of the transportation payment must be
no less (and is not required to be more) than the most economical and
reasonable common carrier transportation charges for the distances
involved. The amount of the daily subsistence payment must be at least
as much as the employer would charge the worker for providing the worker
with three meals a day during employment (if applicable), but in no
event less than the amount permitted under paragraph (g) of this
section.
(2) Transportation from last place of employment to home country. If
the worker completes the work contract period, and the worker has no
immediately subsequent H-2A employment, the employer must provide or pay
for the worker's transportation and daily subsistence from the place of
employment to the place from which the worker, disregarding intervening
employment, departed to work for the employer. For an H-2A worker coming
from outside of the U.S., the place from which the worker has departed
will be considered to be the appropriate U.S. consulate or port of
entry.
(3) Transportation between living quarters and worksite. The
employer must provide transportation between the worker's living
quarters (i.e., housing provided or secured by the employer pursuant to
paragraph (d) of this section) and the employer's worksite at no cost to
the worker, and such transportation must comply with all applicable
Federal, State or local laws and regulations, and must provide, at a
minimum, the same vehicle safety standards, driver licensure, and
vehicle insurance as required under 29 U.S.C. 1841 and 29 CFR part 500,
subpart D. If workers' compensation is used to cover such
transportation, in lieu of vehicle insurance, the employer must either
ensure that the workers' compensation covers all travel or that vehicle
insurance exists to provide coverage for travel not covered by workers'
compensation.
(i) Three-fourths guarantee--(1) Offer to worker. The employer must
guarantee to offer the worker employment for a total number of work
hours equal to at least three-fourths of the workdays of the total
period beginning with the first workday after the arrival of the worker
at the place of employment or the advertised contractual first date of
need, whichever is later, and ending on the expiration date specified in
the work contract or in its extensions, if any. For purposes of this
paragraph a workday means the number of hours in a workday as stated in
the job order and excludes the worker's Sabbath and Federal holidays.
The employer must offer a total number of hours to ensure the provision
of sufficient work to reach the three-fourths guarantee. The
[[Page 516]]
work hours must be offered during the work period specified in the work
contract, or during any modified work contract period to which the
worker and employer have mutually agreed and has been approved by the
CO. The work contract period can be shortened by agreement of the
parties only with the approval of the CO. In the event the worker begins
working later than the specified beginning date of the contract, the
guarantee period begins with the first workday after the arrival of the
worker at the place of employment, and continues until the last day
during which the work contract and all extensions thereof are in effect.
Therefore, if, for example, a work contract is for a 10-week period,
during which a normal workweek is specified as 6 days a week, 8 hours
per day, the worker would have to be guaranteed employment for at least
360 hours (e.g., 10 weeks x 48 hours/week = 480-hours x 75 percent =
360). If a Federal holiday occurred during the 10-week span, the 8 hours
would be deducted from the total guaranteed. A worker may be offered
more than the specified hours of work on a single workday. For purposes
of meeting the guarantee, however, the worker will not be required to
work for more than the number of hours specified in the job order for a
workday, or on the worker's Sabbath or Federal holidays. However, all
hours of work actually performed may be counted by the employer in
calculating whether the period of guaranteed employment has been met. If
the employer affords the U.S. or H-2A worker during the total work
contract period less employment than that required under this paragraph,
the employer must pay such worker the amount the worker would have
earned had the worker, in fact, worked for the guaranteed number of
days.
(2) Guarantee for piece rate paid worker. If the worker will be paid
on a piece rate basis, the employer must use the worker's average hourly
piece rate earnings or the AEWR, whichever is higher, to calculate the
amount due under the guarantee.
(3) Failure to work. Any hours the worker fails to work, up to a
maximum of the number of hours specified in the job order for a workday,
when the worker has been offered an opportunity to do so in accordance
with paragraph (i)(1) of this section, and all hours of work actually
performed (including voluntary work over 8 hours in a workday or on the
worker's Sabbath or Federal holidays), may be counted by the employer in
calculating whether the period of guaranteed employment has been met. An
employer seeking to calculate whether the number of hours has been met
must maintain the payroll records in accordance with paragraph (j)(2) of
this section.
(4) Displaced H-2A worker. The employer is not liable for payment
under paragraph (i)(1) of this section to an H-2A worker whom the CO
certifies is displaced because of the employer's compliance with Sec.
655.105(d) with respect to referrals made after the employer's date of
need. The employer is, however, liable for return transportation for any
such displaced worker in accordance with paragraph (h)(2) of this
section.
(5) Obligation to provide housing and meals. Notwithstanding the
three-fourths guarantee contained in this section, employers are
obligated to provide housing and subsistence for each day of the
contract period up until the day the workers depart for other H-2A
employment, depart to the place outside of the U.S. from which the
worker came, or, if the worker voluntarily abandons employment or is
terminated for cause, the day of such abandonment or termination.
(j) Earnings records. (1) The employer must keep accurate and
adequate records with respect to the workers' earnings, including but
not limited to field tally records, supporting summary payroll records,
and records showing the nature and amount of the work performed; the
number of hours of work offered each day by the employer (broken out by
hours offered both in accordance with and over and above the three-
fourths guarantee at paragraph (i)(3) of this section); the hours
actually worked each day by the worker; the time the worker began and
ended each workday; the rate of pay (both piece rate and hourly, if
applicable); the worker's earnings per pay period; the worker's home
address; and the amount of and reasons for any and
[[Page 517]]
all deductions taken from the worker's wages.
(2) Each employer must keep the records required by this part,
including field tally records and supporting summary payroll records,
safe and accessible at the place or places of employment, or at one or
more established central recordkeeping offices where such records are
customarily maintained. All records must be available for inspection and
transcription by the Secretary or a duly authorized and designated
representative, and by the worker and representatives designated by the
worker as evidenced by appropriate documentation (an Entry of Appearance
as Attorney or Representative, Form G-28, signed by the worker, or an
affidavit signed by the worker confirming such representation). Where
the records are maintained at a central recordkeeping office, other than
in the place or places of employment, such records must be made
available for inspection and copying within 72 hours following notice
from the Secretary, or a duly authorized and designated representative,
and by the worker and designated representatives as described in this
paragraph.
(3) To assist in determining whether the three-fourths guarantee in
paragraph (i) of this section has been met, if the number of hours
worked by the worker on a day during the work contract period is less
than the number of hours offered, as specified in the job offer, the
records must state the reason or reasons therefore.
(4) The employer must retain the records for not less than 3 years
after the completion of the work contract.
(k) Hours and earnings statements. The employer must furnish to the
worker on or before each payday in one or more written statements the
following information:
(1) The worker's total earnings for the pay period;
(2) The worker's hourly rate and/or piece rate of pay;
(3) The hours of employment offered to the worker (broken out by
offers in accordance with, and over and above, the guarantee);
(4) The hours actually worked by the worker;
(5) An itemization of all deductions made from the worker's wages;
and
(6) If piece rates are used, the units produced daily.
(l) Rates of pay. (1) If the worker is paid by the hour, the
employer must pay the worker at least the AEWR in effect at the time
recruitment for the position was begun, the prevailing hourly wage rate,
the prevailing piece rate, or the Federal or State minimum wage rate,
whichever is highest, for every hour or portion thereof worked during a
pay period; or
(2)(i) If the worker is paid on a piece rate basis and the piece
rate does not result at the end of the pay period in average hourly
piece rate earnings during the pay period at least equal to the amount
the worker would have earned had the worker been paid at the appropriate
hourly rate, the worker's pay must be supplemented at that time so that
the worker's earnings are at least as much as the worker would have
earned during the pay period if the worker had instead been paid at the
appropriate hourly wage rate for each hour worked;
(ii) The piece rate must be no less than the piece rate prevailing
for the activity in the area of intended employment; and
(iii) If the employer who pays by the piece rate requires one or
more minimum productivity standards of workers as a condition of job
retention, such standards must be specified in the job offer and must be
normal, meaning that they may not be unusual for workers performing the
same activity in the area of intended employment.
(m) Frequency of pay. The employer must state in the job offer the
frequency with which the worker will be paid, which must be at least
twice monthly.
(n) Abandonment of employment or termination for cause. If the
worker voluntarily abandons employment before the end of the contract
period, fails to report for employment at the beginning of the contract
period, or is terminated for cause, and the employer notifies the
Department and DHS in writing or by any other method specified by the
[[Page 518]]
Department or DHS in a manner specified in a notice published in the
Federal Register not later than 2 working days after such abandonment or
abscondment occurs, the employer will not be responsible for providing
or paying for the subsequent transportation and subsistence expenses of
that worker under paragraph (h) of this section, and that worker is not
entitled to the three-fourths guarantee described in paragraph (i) of
this section. An abandonment or abscondment shall be deemed to begin
after a worker fails to report for work at the regularly scheduled time
for 5 consecutive working days without the consent of the employer.
Employees may be terminated for cause, however, for shorter unexcused
periods of time that shall not be considered abandonment or abscondment.
(o) Contract impossibility. If, before the expiration date specified
in the work contract, the services of the worker are no longer required
for reasons beyond the control of the employer due to fire, weather, or
other Act of God that makes the fulfillment of the contract impossible,
the employer may terminate the work contract. Whether such an event
constitutes a contract impossibility will be determined by the CO. In
the event of such termination of a contract, the employer must fulfill a
three-fourths guarantee for the time that has elapsed from the start of
the work contract to the time of its termination as described in
paragraph (i)(1) of this section. The employer must:
(1) Return the worker, at the employer's expense, to the place from
which the worker (disregarding intervening employment) came to work for
the employer, or transport the worker to the worker's next certified H-
2A employer (but only if the worker can provide documentation supporting
such employment), whichever the worker prefers. For an H-2A worker
coming from outside of the U.S., the place from which the worker
(disregarding intervening employment) came to work for the employer is
the appropriate U.S. consulate or port of entry;
(2) Reimburse the worker the full amount of any deductions made from
the worker's pay by the employer for transportation and subsistence
expenses to the place of employment; and
(3) Pay the worker for any costs incurred by the worker for
transportation and daily subsistence to that employer's place of
employment. Daily subsistence will be computed as set forth in paragraph
(h) of this section. The amount of the transportation payment will be no
less (and is not required to be more) than the most economical and
reasonable common carrier transportation charges for the distances
involved.
(p) Deductions. The employer must make all deductions from the
worker's paycheck that are required by law. The job offer must specify
all deductions not required by law which the employer will make from the
worker's paycheck. All deductions must be reasonable. However, an
employer subject to the FLSA may not make deductions that would violate
the FLSA.
(q) Copy of work contract. The employer must provide to the worker,
no later than on the day the work commences, a copy of the work contract
between the employer and the worker. The work contract must contain all
of the provisions required by paragraphs (a) through (p) of this
section. In the absence of a separate, written work contract entered
into between the employer and the worker, the job order, as provided in
20 CFR part 653, Subpart F, will be the work contract.
Sec. 655.1305 Assurances and obligations of H-2A employers.
An employer seeking to employ H-2A workers must attest as part of
the Application for Temporary Employment Certification that it will
abide by the following conditions of this subpart:
(a) The job opportunity is and will continue through the recruitment
period to be open to any qualified U.S. worker regardless of race,
color, national origin, age, sex, religion, handicap, or citizenship,
and the employer has conducted and will continue to conduct the required
recruitment, in accordance with regulations, and has been unsuccessful
in locating sufficient numbers of qualified U.S. applicants for the job
opportunity for which certification is sought. Any U.S. workers who
applied or apply for the job were
[[Page 519]]
or will be rejected only for lawful, job-related reasons, and those not
rejected on this basis have been or will be hired. In addition, the
employer attests that it will retain records of all rejections as
required by Sec. 655.119.
(b) The employer is offering terms and working conditions which are
not less favorable than those offered to the H-2A worker(s) and are not
less than the minimum terms and conditions required by this subpart.
(c) The specific job opportunity for which the employer is
requesting H-2A certification is not vacant because the former occupant
is on strike or being locked out in the course of a labor dispute.
(d) The employer will continue to cooperate with the SWA by
accepting referrals of all eligible U.S. workers who apply (or on whose
behalf an application is made) for the job opportunity until the end of
the recruitment period as specified in Sec. 655.102(f)(3).
(e) During the period of employment that is the subject of the labor
certification application, the employer will:
(1) Comply with applicable Federal, State and local employment-
related laws and regulations, including employment-related health and
safety laws;
(2) Provide for or secure housing for those workers who are not
reasonably able to return to their permanent residence at the end of the
work day, without charge to the worker, that complies with the
applicable standards as set forth in Sec. 655.104(d);
(3) Where required, has timely requested a preoccupancy inspection
of the housing and, if one has been conducted, received certification;
(4) Provide insurance, without charge to the worker, under a State
workers' compensation law or otherwise, that meets the requirements of
Sec. 655.104(e); and
(5) Provide transportation in compliance with all applicable
Federal, State or local laws and regulations between the worker's living
quarters (i.e., housing provided by the employer under Sec. 655.104(d))
and the employer's worksite without cost to the worker.
(f) Upon the separation from employment of H-2A worker(s) employed
under the labor certification application, if such separation occurs
prior to the end date of the employment specified in the application,
the employer will notify the Department and DHS in writing (or any other
method specified by the Department or DHS) of the separation from
employment not later than 2 work days after such separation is
discovered by the employer. The procedures for reporting abandonments
and abscondments are outlined in Sec. 655.104(n) of this subpart.
(g) The offered wage rate is the highest of the AEWR in effect at
the time recruitment is initiated, the prevailing hourly wage or piece
rate, or the Federal or State minimum wage, and the employer will pay
the offered wage during the entire period of the approved labor
certification.
(h) The offered wage is not based on commission, bonuses, or other
incentives, unless the employer guarantees a wage paid on a weekly, bi-
weekly, or monthly basis that equals or exceeds the AEWR, prevailing
hourly wage or piece rate, or the legal Federal or State minimum wage,
whichever is highest.
(i) The job opportunity is a full-time temporary position,
calculated to be at least 30 hours per work week, the qualifications for
which do not substantially deviate from the normal and accepted
qualifications required by employers that do not use H-2A workers in the
same or comparable occupations or crops.
(j) The employer has not laid off and will not lay off any similarly
employed U.S. worker in the occupation that is the subject of the
Application for Temporary Employment Certification in the area of
intended employment except for lawful, job related reasons within 60
days of the date of need, or if the employer has laid off such workers,
it has offered the job opportunity that is the subject of the
application to those laid-off U.S. worker(s) and the U.S. worker(s)
either refused the job opportunity or was rejected for the job
opportunity for lawful, job-related reasons.
(k) The employer has not and will not intimidate, threaten,
restrain, coerce, blacklist, or in any manner discriminate against, and
has not and will not cause any person to intimidate, threaten, restrain,
coerce, blacklist, or
[[Page 520]]
in any manner discriminate against, any person who has with just cause:
(1) Filed a complaint under or related to sec. 218 of the INA at 8
U.S.C. 1188, or this subpart or any other Department regulation
promulgated under sec. 218 of the INA;
(2) Instituted or caused to be instituted any proceeding under or
related to sec. 218 of the INA, or this subpart or any other Department
regulation promulgated under sec. 218 of the INA;
(3) Testified or is about to testify in any proceeding under or
related to sec. 218 of the INA or this subpart or any other Department
regulation promulgated under sec. 218 of the INA;
(4) Consulted with an employee of a legal assistance program or an
attorney on matters related to sec. 218 of the INA or this subpart or
any other Department regulation promulgated under sec. 218 of the INA;
or
(5) Exercised or asserted on behalf of himself/herself or others any
right or protection afforded by sec. 218 of the INA, or this subpart or
any other Department regulation promulgated under sec. 218 of the INA.
(l) The employer shall not discharge any person because of that
person's taking any action listed in paragraphs (k)(1) through (k)(5) of
this section.
(m) All fees associated with processing the temporary labor
certification will be paid in a timely manner.
(n) The employer will inform H-2A workers of the requirement that
they leave the U.S. at the end of the period certified by the Department
or separation from the employer, whichever is earlier, as required under
Sec. 655.111, unless the H-2A worker is being sponsored by another
subsequent employer.
(o) The employer and its agents have not sought or received payment
of any kind from the employee for any activity related to obtaining
labor certification, including payment of the employer's attorneys'
fees, application fees, or recruitment costs. For purposes of this
paragraph, payment includes, but is not limited to, monetary payments,
wage concessions (including deductions from wages, salary, or benefits),
kickbacks, bribes, tributes, in kind payments, and free labor. This
provision does not prohibit employers or their agents from receiving
reimbursement for costs that are the responsibility of the worker, such
as government required passport or visa fees.
(p) The employer has contractually forbidden any foreign labor
contractor or recruiter whom the employer engages in international
recruitment of H-2A workers to seek or receive payments from prospective
employees, except as provided for in DHS regulations at 8 CFR
214.2(h)(5)(xi)(A).
(q) The applicant is either a fixed-site employer, an agent or
recruiter, an H-2ALC (as defined in these regulations), or an
association.
Sec. 655.1306 Assurances and obligations of H-2A Labor Contractors.
(a) The pre-filing activity requirements set forth in Sec. 655.102
are modified as follows for H-2ALCs:
(1) The job order for an H-2ALC may contain work locations in
multiple areas of intended employment, and may be submitted to any one
of the SWAs having jurisdiction over the anticipated work areas. The SWA
receiving the job order shall promptly transmit, on behalf of the
employer, a copy of its active job order to all States listed in the
application as anticipated worksites, as well as those States, if any,
designated by the Secretary as traditional or expected labor supply
States for each area in which the employer's work is to be performed.
Each SWA shall keep the H-2ALC's job order posted until the end of the
recruitment period, as set forth in Sec. 655.102(f)(3), for the area of
intended employment that is covered by the SWA. SWAs in States that have
been designated as traditional or expected labor supply States for more
than one area of intended of employment that are listed on an
application shall keep the H-2ALC's job order posted until the end of
the applicable recruitment period that is last in time, and may make
referrals for job opportunities in any area of intended employment that
is still in an active recruitment period, as defined by Sec.
655.102(f)(3).
(2) The H-2ALC must conduct separate positive recruitment under
Sec. 655.102(g) through (i) for each area of intended employment in
which the H-2ALC intends to perform work, but need not conduct separate
recruitment
[[Page 521]]
for each work location within a single area of intended employment. The
positive recruitment for each area of intended employment must list the
name and location of each fixed-site agricultural business to which the
H-2ALC expects to provide H-2A workers, the expected beginning and
ending dates when the H-2ALC will be providing the workers to each fixed
site, and a description of the crops and activities the workers are
expected to perform at such fixed site. Such positive recruitment must
be conducted pre-filing for the first area of intended employment, but
must be started no more than 75 and no fewer than 60 days before the
listed arrival date (or the amended date, if applicable) for each
subsequent area of intended employment. For each area of intended
employment, the advertising that must be placed in any applicable States
designated as traditional or expected labor supply States must be placed
at the same time as the placement of other positive recruitment for the
area of intended employment in accordance with Sec. 655.102(i)(2).
(3) The job order and the positive recruitment in each area of
intended employment may require that workers complete the remainder of
the H-2ALC's itinerary.
(4) An H-2ALC who hires U.S. workers during the course of its
itinerary, and accordingly releases one or more of its H-2A workers, is
eligible for the release from the three-quarters guarantee with respect
to the released H-2A workers that is provided for in Sec.
655.104(i)(4).
(5) An H-2ALC may amend its application subsequent to submission in
accordance with Sec. 655.107(d)(3) to account for new or changed
worksites or areas of intended employment during the course of the
itinerary in the following manner:
(i) If the additional worksite(s) are in the same area(s) of
intended employment as represented on the Application for Temporary
Employment Certification, the H-2ALC is not required to re-recruit in
those areas of intended employment if that recruitment has been
completed and if the job duties at the new work sites are similar to
those already covered by the application.
(ii) If the additional worksite(s) are outside the area(s) of
intended employment represented on the Application for Temporary
Employment Certification, the H-2ALC must submit in writing the new
area(s) of intended employment and explain the reasons for the amendment
of the labor certification itinerary. The CO will order additional
recruitment in accordance with Sec. 655.102(d).
(iii) For any additional worksite not included on the original
application that necessitates a change in housing of H-2A workers, the
H-2ALC must secure the statement of housing as described in paragraph
(b)(6) of this section and obtain an inspection of such housing from the
SWA in the area of intended employment.
(iv) Where additional recruitment is required under paragraphs
(a)(5)(i) or (a)(5)(ii) of this section, the CO shall allow it to take
place on an expedited basis, where possible, so as to allow the amended
dates of need to be met.
(6) Consistent with paragraph (a)(5) of this section, no later than
30 days prior to the commencement of employment in each area of intended
employment in the itinerary of an H-2ALC, the SWA having jurisdiction
over that area of intended employment must complete the housing
inspections for any employer-provided housing to be used by the
employees of the H-2ALC.
(7) To satisfy the requirements of Sec. 655.102(h), the H-2ALC must
contact all U.S employees that worked for the H-2ALC during the previous
season, except those excluded by that section, before filing its
application, and must advise those workers that a separate job
opportunity exists for each area of intended employment that is covered
by the application. The employer may advise contacted employees that for
any given job opportunity, workers may be required to complete the
remainder of the H-2ALC's itinerary.
(b) In addition to the assurances and obligations listed in Sec.
655.105, H-2ALC applicants are also required to:
(1) Provide the MSPA Farm Labor Contractor (FLC) certificate of
registration number and expiration date if required under MSPA at 29
U.S.C. 1801 et seq., to have such a certificate;
[[Page 522]]
(2) Identify the farm labor contracting activities the H-2ALC is
authorized to perform as an FLC under MSPA as shown on the FLC
certificate of registration, if required under MSPA at 29 U.S.C. 1801 et
seq., to have such a certificate of registration;
(3) List the name and location of each fixed-site agricultural
business to which the H-2A Labor Contractor expects to provide H-2A
workers, the expected beginning and ending dates when the H-2ALC will be
providing the workers to each fixed site, and a description of the crops
and activities the workers are expected to perform at such fixed site;
(4) Provide proof of its ability to discharge financial obligations
under the H-2A program by attesting that it has obtained a surety bond
as required by 29 CFR 501.8, stating on the application the name,
address, phone number, and contact person for the surety, and providing
the amount of the bond (as calculated pursuant to 29 CFR 501.8) and any
identifying designation utilized by the surety for the bond;
(5) Attest that it has engaged in, or will engage in within the
timeframes required by Sec. 655.102 as modified by Sec. 655.106(a),
recruitment efforts in each area of intended employment in which it has
listed a fixed-site agricultural business; and
(6) Attest that it will be providing housing and transportation that
complies with the applicable housing standards in Sec. 655.104(d) or
that it has obtained from each fixed-site agricultural business that
will provide housing or transportation to the workers a written
statement stating that:
(i) All housing used by workers and owned, operated or secured by
the fixed-site agricultural business complies with the applicable
housing standards in Sec. 655.104(d); and
(ii) All transportation between the worksite and the workers' living
quarters that is provided by the fixed-site agricultural business
complies with all applicable Federal, State, or local laws and
regulations and will provide, at a minimum, the same vehicle safety
standards, driver licensure, and vehicle insurance as required under 29
U.S.C. 1841 and 29 CFR part 500, subpart D, except where workers'
compensation is used to cover such transportation as described in Sec.
655.104(h)(3).
Sec. 655.1307 Processing of applications.
(a) Processing. (1) Upon receipt of the application, the CO will
promptly review the application for completeness and an absence of
errors that would prevent certification, and for compliance with the
criteria for certification. The CO will make a determination to certify,
deny, or issue a Notice of Deficiency prior to making a Final
Determination on the application. Applications requesting that zero job
opportunities be certified for H-2A employment because the employer has
been able to recruit a sufficient number of U.S. workers must comply
with other requirements for H-2A applications and must be supported by a
recruitment report, in which case the application will be accepted but
will then be denied. Criteria for certification, as used in this
subpart, include, but are not limited to, whether the employer has
established the need for the agricultural services or labor to be
performed on a temporary or seasonal basis; made all the assurances and
met all the obligations required by Sec. 655.105, and/or, if an H-2ALC,
by Sec. 655.106; complied with the timeliness requirements in Sec.
655.102; and complied with the recruitment obligations required by
Sec. Sec. 655.102 and 655.103.
(2) Unless otherwise noted, any notice or request sent by the CO or
OFLC to an applicant requiring a response shall be sent by means
normally assuring next-day delivery, to afford the applicant sufficient
time to respond. The employer's response shall be considered filed with
the Department when sent (by mail, certified mail, or any other means
indicated to be acceptable by the CO) to the Department, which may be
demonstrated, for example, by a postmark.
(b) Notice of deficiencies. (1) If the CO determines that the
employer has made all necessary attestations and assurances, but the
application fails to comply with one or more of the criteria for
certification in paragraph (a) of this section, the CO will promptly
notify the employer within 7 calendar days of the CO's receipt of the
application.
[[Page 523]]
(2) The notice will:
(i) State the reason(s) why the application fails to meet the
criteria for temporary labor certification, citing the relevant
regulatory standard(s);
(ii) Offer the employer an opportunity to submit a modified
application within 5 business days from date of receipt, stating the
modification that is needed for the CO to accept the application for
consideration;
(iii) Except as provided for under paragraph (b)(2)(iv) of this
section, state that the CO's determination on whether to grant or deny
the Application for Temporary Employment Certification will be made no
later than 30 calendar days before the date of need, provided that the
employer submits the requested modification to the application within 5
business days and in a manner specified by the CO;
(iv) Where the CO determines the employer failed to comply with the
recruitment obligations required by Sec. Sec. 655.102 and 655.103,
offer the employer an opportunity to correct its recruitment and conduct
it on an expedited schedule. The CO shall specify the positive
recruitment requirements, request the employer submit proof of corrected
advertisement and an initial recruitment report meeting the requirements
of Sec. 655.102(k) no earlier than 48 hours after the last corrected
advertisement is printed, and state that the CO's determination on
whether to grant or deny the Application for Temporary Employment
Certification will be made within 5 business days of receiving the
required documentation, which may be a date later than 30 days before
the date of need:
(v) Offer the employer an opportunity to request an expedited
administrative review or a de novo administrative hearing before an ALJ,
of the Notice of Deficiency. The notice will state that in order to
obtain such a review or hearing, the employer, within 5 business days of
the receipt of the notice, must file by facsimile or other means
normally assuring next day delivery, a written request to the Chief
Administrative Law Judge of DOL and simultaneously serve a copy on the
CO. The notice will also state that the employer may submit any legal
arguments that the employer believes will rebut the basis of the CO's
action; and
(vi) State that if the employer does not comply with the
requirements under paragraphs (b)(2)(ii) and (iv) of this section or
request an expedited administrative judicial review or a de novo hearing
before an ALJ within the 5 business days the CO will deny the
application in accordance with the labor certification determination
provisions in Sec. 655.109.
(c) Submission of modified applications. (1) If the CO notifies the
employer of any deficiencies within the 7 calendar day timeframe set
forth in paragraph (b)(1) of this section, the date by which the CO's
Final Determination is required by statute to be made will be postponed
by 1 day for each day that passes beyond the 5 business-day period
allowed under paragraph (b)(2)(ii) of this section to submit a modified
application.
(2) Where the employer submits a modified application as required by
the CO, and the CO approves the modified application, the CO will not
deny the application based solely on the fact that it now does not meet
the timeliness requirements for filing applications.
(3) If the modified application is not approved, the CO will deny
the application in accordance with the labor certification determination
provisions in Sec. 655.109.
(d) Amendments to applications. (1) Applications may be amended at
any time before the CO's certification determination to increase the
number of workers requested in the initial application by not more than
20 percent (50 percent for employers requesting less than 10 workers)
without requiring an additional recruitment period for U.S. workers.
Requests for increases above the percent prescribed, without additional
recruitment, may be approved by the CO only when the request is
submitted in writing, the need for additional workers could not have
been foreseen, and the crops or commodities will be in jeopardy prior to
the expiration of an additional recruitment period.
(2) Applications may be amended to make minor changes in the total
period of employment, but only if a written
[[Page 524]]
request is submitted to the CO and approved in advance. In considering
whether to approve the request, the CO will review the reason(s) for the
request, determine whether the reason(s) are on the whole justified, and
take into account the effect(s) of a decision to approve on the adequacy
of the underlying test of the domestic labor market for the job
opportunity. If a request for a change in the start date of the total
period of employment is made after workers have departed for the
employer's place of work, the CO may only approve the change if the
request is accompanied by a written assurance signed and dated by the
employer that all such workers will be provided housing and subsistence,
without cost to the workers, until work commences. Upon acceptance of an
amendment, the CO will submit to the SWA any necessary modification to
the job order.
(3) Other amendments to the application, including elements of the
job offer and the place of work, may be approved by the CO if the CO
determines the proposed amendment(s) are justified by a business reason
and will not prevent the CO from making the labor certification
determination required under Sec. 655.109. Requested amendments will be
reviewed as quickly as possible, taking into account revised dates of
need for work locations associated with the amendment.
(e) Appeal procedures. With respect to either a Notice of Deficiency
issued under paragraph (b) of this section, the denial of a requested
amendment under paragraph (d) of this section, or a notice of denial
issued under Sec. 655.109(e), if the employer timely requests an
expedited administrative review or de novo hearing before an ALJ, the
procedures set forth in Sec. 655.115 will be followed.
Sec. 655.1308 Offered wage rate.
(a) Highest wage. To comply with its obligation under Sec.
655.105(g), an employer must offer a wage rate that is the highest of
the AEWR in effect at the time recruitment for a position is begun, the
prevailing hourly wage or piece rate, or the Federal or State minimum
wage.
(b) Wage rate request. The employer must request and obtain a wage
rate determination from the NPC, on a form prescribed by ETA, before
commencing any recruitment under this subpart, except where specifically
exempted from this requirement by these regulations.
(c) Validity of wage rate. The recruitment must begin within the
validity period of the wage determination obtained from the NPC.
Recruitment for this purpose begins when the job order is accepted by
the SWA for posting.
(d) Wage offer. The employer must offer and advertise in its
recruitment a wage at least equal to the wage rate required by paragraph
(a) of this section.
(e) Adverse effect wage rate. The AEWR will be based on published
wage data for the occupation, skill level, and geographical area from
the Bureau of Labor Statistics (BLS), Occupational Employment Statistics
(OES) survey. The NPC will obtain wage information on the AEWR using the
On-line Wage Library (OWL) found on the Foreign Labor Certification Data
Center Web site (http://www.flcdatacenter.com/). This wage shall not be
less than the July 24, 2009 Federal minimum wage of $7.25.
(f) Wage determination. The NPC must enter the wage rate
determination on a form it uses, indicate the source, and return the
form with its endorsement to the employer.
(g) Skill level. (1) Level I wage rates are assigned to job offers
for beginning level employees who have a basic understanding of the
occupation. These employees perform routine tasks that require limited,
if any, exercise of judgment. The tasks provide experience and
familiarization with the employer's methods, practices, and programs.
The employees may perform higher level work for training and
developmental purposes. These employees work under close supervision and
receive specific instructions on required tasks and results expected.
Their work is closely monitored and reviewed for accuracy.
(2) Level II wage rates are assigned to job offers for employees who
have attained, through education or experience, a good understanding of
the occupation. These employees perform moderately complex tasks that
require limited judgment. An indicator that the job request warrants a
wage determination at Level II would be a requirement
[[Page 525]]
for years of education and/or experience that are generally required as
described in the O*NET Job Zones.
(3) Level III wage rates are assigned to job offers for employees
who have a sound understanding of the occupation and have attained,
either through education or experience, special skills or knowledge.
These employees perform tasks that require exercising judgment and may
coordinate the activities of other staff. They may have supervisory
authority over those staff. A requirement for years of experience or
educational degrees that are at the higher ranges indicated in the O*NET
Job Zones would be an indicator that a Level III wage should be
considered. Frequently, key words in the job title can be used as
indicators that an employer's job offer is for an experienced worker.
Words such as lead, senior, crew chief, or journeyman would be
indicators that a Level III wage should be considered.
(4) Level IV wage rates are assigned to job offers for employees who
have sufficient experience in the occupation to plan and conduct work
requiring judgment and the independent evaluation, selection,
modification, and application of standard procedures and techniques.
Such employees receive only minimal guidance and their work is reviewed
only for application of sound judgment and effectiveness in meeting the
establishment's procedures and expectations. They generally have
management and/or supervisory responsibilities.
(h) Retention of documentation. An employer filing an Application
for Temporary Employment Certification must maintain documentation of
its wage determination from the NPC as required in this subpart and be
prepared to submit this documentation with the filing of its
application. The documentation required in this subpart must be retained
for a period of no less than 3 years from the date of the certification.
There is no record retention requirement for applications (and
supporting documentation) that are denied.
Sec. 655.1309 Labor certification determinations.
(a) COs. The Administrator, OFLC is the Department's National CO.
The Administrator, OFLC, and the CO(s) in the NPC(s) (by virtue of
delegation from the Administrator, OFLC), have the authority to certify
or deny applications for temporary employment certification under the H-
2A nonimmigrant classification. If the Administrator, OFLC has directed
that certain types of temporary labor certification applications or
specific applications under the H-2A nonimmigrant classification be
handled by the National OFLC, the Director(s) of the NPC(s) will refer
such applications to the Administrator, OFLC.
(b) Determination. No later than 30 calendar days before the date of
need, as identified in the Application for Temporary Employment
Certification, except as provided for under Sec. 655.107(c) for
modified applications, or applications not otherwise meeting
certification criteria by that date, the CO will make a determination
either to grant or deny the Application for Temporary Employment
Certification. The CO will grant the application if and only if: the
employer has met the requirements of this subpart, including the
criteria for certification set forth in Sec. 655.107(a), and thus the
employment of the H-2A workers will not adversely affect the wages and
working conditions of similarly employed U.S. workers.
(c) Notification. The CO will notify the employer in writing (either
electronically or by mail) of the labor certification determination.
(d) Approved certification. If temporary labor certification is
granted, the CO must send the certified Application for Temporary
Employment Certification and a Final Determination letter to the
employer, or, if appropriate, to the employer's agent or attorney. The
Final Determination letter will notify the employer to file the
certified application and any other documentation required by USCIS with
the appropriate USCIS office and to continue to cooperate with the SWA
by accepting all referrals of eligible U.S. workers who apply (or on
whose behalf an application is made) for the job opportunity until the
end of the recruitment period
[[Page 526]]
as set forth in Sec. 655.102(f)(3). However, the employer will not be
required to accept referrals of eligible U.S. workers once it has hired
or extended employment offers to eligible U.S. workers equal to the
number of H-2A workers sought.
(e) Denied certification. If temporary labor certification is
denied, the Final Determination letter will be sent to the employer by
means normally assuring next-day delivery. The Final Determination
Letter will:
(1) State the reasons certification is denied, citing the relevant
regulatory standards and/or special procedures;
(2) If applicable, address the availability of U.S. workers in the
occupation as well as the prevailing benefits, wages, and working
conditions of similarly employed U.S. workers in the occupation and/or
any applicable special procedures;
(3) Offer the applicant an opportunity to request an expedited
administrative review, or a de novo administrative hearing before an
ALJ, of the denial. The notice must state that in order to obtain such a
review or hearing, the employer, within 7 calendar days of the date of
the notice, must file by facsimile (fax), telegram, or other means
normally assuring next day delivery, a written request to the Chief
Administrative Law Judge of DOL (giving the address) and simultaneously
serve a copy on the CO. The notice will also state that the employer may
submit any legal arguments which the employer believes will rebut the
basis of the CO's action; and
(4) State that if the employer does not request an expedited
administrative judicial review or a de novo hearing before an ALJ within
the 7 calendar days, the denial is final and the Department will not
further consider that application for temporary alien agricultural labor
certification.
(f) Partial certification. The CO may, to ensure compliance with all
regulatory requirements, issue a partial certification, reducing either
the period of need or the number of H-2A workers being requested or both
for certification, based upon information the CO receives in the course
of processing the temporary labor certification application, an audit,
or otherwise. The number of workers certified shall be reduced by one
for each referred U.S. worker who is qualified, able, available and
willing. If a partial labor certification is issued, the Final
Determination letter will:
(1) State the reasons for which either the period of need and/or the
number of H-2A workers requested has been reduced, citing the relevant
regulatory standards and/or special procedures;
(2) If applicable, address the availability of U.S. workers in the
occupation;
(3) Offer the applicant an opportunity to request an expedited
administrative review, or a de novo administrative hearing before an
ALJ, of the decision. The notice will state that in order to obtain such
a review or hearing, the employer, within 7 calendar days of the date of
the notice, will file by facsimile or other means normally assuring next
day delivery a written request to the Chief Administrative Law Judge of
DOL (giving the address) and simultaneously serve a copy on the CO. The
notice will also state that the employer may submit any legal arguments
which the employer believes will rebut the basis of the CO's action; and
(4) State that if the employer does not request an expedited
administrative judicial review or a de novo hearing before an ALJ within
the 7 calendar days, the denial is final and the Department will not
further consider that application for temporary alien agricultural labor
certification.
(g) Appeal procedures. If the employer timely requests an expedited
administrative review or de novo hearing before an ALJ under paragraph
(e)(3) or (f)(3) of this section, the procedures at Sec. 655.115 will
be followed.
(h) Payment of processing fees. A determination by the CO to grant
an Application for Temporary Employment Certification in whole or in
part under paragraph (d) or (f) of this section will include a bill for
the required fees. Each employer of H-2A workers under the Application
for Temporary Employment Certification (except joint employer
associations, which shall not be assessed a fee in addition to the fees
assessed to the members of the association) must
[[Page 527]]
pay in a timely manner a non-refundable fee upon issuance of the
certification granting the application (in whole or in part), as
follows:
(1) Amount. The application fee for each employer receiving a
temporary agricultural labor certification is $100 plus $10 for each H-
2A worker certified under the Application for Temporary Employment
Certification, provided that the fee to an employer for each temporary
agricultural labor certification received will be no greater than
$1,000. There is no additional fee to the association filing the
application. The fees must be paid by check or money order made payable
to ``United States Department of Labor.'' In the case of H-2A employers
that are members of an agricultural association acting as a joint
employer applying on their behalf, the aggregate fees for all employers
of H-2A workers under the application must be paid by one check or money
order.
(2) Timeliness. Fees received by the CO no more than 30 days after
the date the temporary labor certification is granted will be considered
timely. Non-payment of fees by the date that is 30 days after the
issuance of the certification will be considered a substantial program
violation and subject to the procedures in Sec. 655.115.
Sec. 655.1310 Validity and scope of temporary labor certifications.
(a) Validity period. A temporary labor certification is valid for
the duration of the job opportunity for which certification is granted
to the employer. Except as provided in paragraph and (d) of this
section, the validity period is that time between the beginning and
ending dates of certified employment, as listed on the Application for
Temporary Employment Certification. The certification expires on the
last day of authorized employment.
(b) Scope of validity. Except as provided in paragraphs (c) and (d)
of this section, a temporary labor certification is valid only for the
number of H-2A workers, the area of intended employment, the specific
occupation and duties, and the employer(s) specified on the certified
Application for Temporary Employment Certification (as originally filed
or as amended) and may not be transferred from one employer to another.
(c) Scope of validity--associations--(1) Certified applications. If
an association is requesting temporary labor certification as a joint
employer, the certified Application for Temporary Employment
Certification will be granted jointly to the association and to each of
the association's employer members named on the application. Workers
authorized by the temporary labor certification may be transferred among
its certified employer members to perform work for which the temporary
labor certification was granted, provided the association controls the
assignment of such workers and maintains a record of such assignments.
All temporary agricultural labor certifications to associations may be
used for the certified job opportunities of any of its employer members
named on the application. If an association is requesting temporary
labor certification as a sole employer, the certified Application for
Temporary Employment Certification is granted to the association only.
(2) Ineligible employer-members. Workers may not be transferred or
referred to an association's employer member if that employer member has
been debarred from participation in the H-2A program.
(d) Extensions on period of employment--(1) Short-term extension. An
employer who seeks an extension of 2 weeks or less of the certified
Application for Temporary Employment Certification must apply for such
extension to DHS. If DHS grants the extension, the corresponding
Application for Temporary Employment Certification will be deemed
extended for such period as is approved by DHS.
(2) Long-term extension. For extensions beyond 2 weeks, an employer
may apply to the CO at any time for an extension of the period of
employment on the certified Application for Temporary Employment
Certification for reasons related to weather conditions or other factors
beyond the control of the employer (which may include unforeseen changes
in market conditions), provided that the employer's need for an
extension is supported in writing, with documentation showing that the
extension is needed and that the need could
[[Page 528]]
not have been reasonably foreseen by the employer. The CO will grant or
deny the request for extension of the period of employment on the
Application for Temporary Employment Certification based on the
available information, and will notify the employer of the decision in
writing. The employer may appeal a denial for a request of an extension
in accordance with the procedures contained in Sec. 655.115. The CO
will not grant an extension where the total work contract period under
that application and extensions would be 12 months or more, except in
extraordinary circumstances.
(e) Requests for determinations based on nonavailability of able,
willing, available, eligible, and qualified U.S. workers--(1) Standards
for requests. If a temporary labor certification has been partially
granted or denied based on the CO's determination that able, willing,
available, eligible, and qualified U.S. workers are available, and, on
or after 30 calendar days before the date of need, some or all of those
U.S. workers are, in fact, no longer able, willing, eligible, qualified,
or available, the employer may request a new temporary labor
certification determination from the CO. Prior to making a new
determination the CO will promptly ascertain (which may be through the
SWA or other sources of information on U.S. worker availability) whether
specific able, willing, eligible and qualified replacement U.S. workers
are available or can be reasonably expected to be present at the
employer's establishment within 72 hours from the date the employer's
request was received. The CO will expeditiously, but in no case later
than 72 hours after the time a complete request (including the signed
statement included in paragraph (e)(2) of this section) is received,
make a determination on the request. An employer may appeal a denial of
such a determination in accordance with the procedures contained in
Sec. 655.115.
(2) Unavailability of U.S. workers. The employer's request for a new
determination must be made directly to the CO by telephone or electronic
mail, and must be confirmed by the employer in writing as required by
this paragraph. If the employer telephonically or via electronic mail
requests the new determination by asserting solely that U.S. workers
have become unavailable, the employer must submit to the CO a signed
statement confirming such assertion. If such signed statement is not
received by the CO within 72 hours of the CO's receipt of the request
for a new determination, the CO will deny the request.
(3) Notification of determination. If the CO determines that U.S.
workers have become unavailable and cannot identify sufficient specific
able, willing, eligible, and qualified U.S. workers who are or who are
likely to be available, the CO will grant the employer's request for a
new determination. However, this does not preclude an employer from
submitting subsequent requests for new determinations, if warranted,
based on subsequent facts concerning purported nonavailability of U.S.
workers or referred workers not being eligible workers or not able,
willing, or qualified because of lawful job-related reasons.
Sec. 655.1311 Required departure.
(a) Limit to worker's stay. As defined further in DHS regulations, a
temporary labor certification limits the authorized period of stay for
an H-2A worker. See 8 CFR 214.2(h). A foreign worker may not remain
beyond his or her authorized period of stay, as established by DHS,
which is based upon the validity period of the labor certification under
which the H-2A worker is employed, nor beyond separation from employment
prior to completion of the H-2A contract, absent an extension or change
of such worker's status under DHS regulations.
(b) Notice to worker. Upon establishment of a program by DHS for
registration of departure, an employer must notify any H-2A worker that
when the worker departs the U.S. by land at the conclusion of employment
as provided in paragraph (a) of this section, the worker must register
such departure at the place and in the manner prescribed by DHS.
[[Page 529]]
Sec. 655.1312 Audits.
(a) Discretion. The Department will conduct audits of temporary
labor certification applications for which certification has been
granted. The applications selected for audit will be chosen within the
sole discretion of the Department.
(b) Audit letter. Where an application is selected for audit, the CO
will issue an audit letter to the employer/applicant. The audit letter
will:
(1) State the documentation that must be submitted by the employer;
(2) Specify a date, no fewer than 14 days and no more than 30 days
from the date of the audit letter, by which the required documentation
must be received by the CO; and
(3) Advise that failure to comply with the audit process may result
in a finding by the CO to:
(i) Revoke the labor certification as provided in Sec. 655.117 and/
or
(ii) Debar the employer from future filings of H-2A temporary labor
certification applications as provided in Sec. 655.118.
(c) Supplemental information request. During the course of the audit
examination, the CO may request supplemental information and/or
documentation from the employer in order to complete the audit.
(d) Audit violations. If, as a result of the audit, the CO
determines the employer failed to produce required documentation, or
determines that the employer violated the standards set forth in Sec.
655.117(a) with respect to the application, the employer's labor
certification may be revoked under Sec. 655.117 and/or the employer may
be referred for debarment under Sec. 655.118. The CO may determine to
provide the audit findings and underlying documentation to DHS or
another appropriate enforcement agency. The CO shall refer any findings
that an employer discouraged an eligible U.S. worker from applying, or
failed to hire, discharged, or otherwise discriminated against an
eligible U.S. worker, to the Department of Justice, Civil Rights
Division, Office of Special Counsel for Unfair Immigration Related
Employment Practices.
Sec. 655.1313 H-2A applications involving fraud or willful
misrepresentation.
(a) Referral for investigation. If the CO discovers possible fraud
or willful misrepresentation involving an Application for Temporary
Employment Certification the CO may refer the matter to the DHS and the
Department's Office of the Inspector General for investigation.
(b) Terminated processing. If a court or the DHS determines that
there was fraud or willful misrepresentation involving an Application
for Temporary Employment Certification, the application will be deemed
invalid. The determination is not appealable. If a certification has
been granted, a finding under this paragraph will be cause to revoke the
certification.
Sec. 655.1314 Setting meal charges; petition for higher meal charges.
(a) Meal charges. Until a new amount is set under this paragraph an
employer may charge workers up to $9.90 for providing them with three
meals per day. The maximum charge allowed by this paragraph (a) will be
changed annually by the same percentage as the 12 month percentage
change for the Consumer Price Index for all Urban Consumers for Food
between December of the year just concluded and December of the year
prior to that. The annual adjustments will be effective on the date of
their publication by the Administrator, OFLC, as a Notice in the Federal
Register. When a charge or deduction for the cost of meals would bring
the employee's wage below the minimum wage set by the FLSA at 29 U.S.C.
206 (FLSA), the charge or deduction must meet the requirements of 29
U.S.C. 203(m) of the FLSA, including the recordkeeping requirements
found at 29 CFR 516.27.
(b) Filing petitions for higher meal charges. The employer may file
a petition with the CO to charge more than the applicable amount for
meal charges if the employer justifies the charges and submits to the CO
the documentation required by paragraph (b)(1) of this section.
(1) Required documentation. Documentation submitted must include the
cost of goods and services directly related to the preparation and
serving of
[[Page 530]]
meals, the number of workers fed, the number of meals served and the
number of days meals were provided. The cost of the following items may
be included: Food; kitchen supplies other than food, such as lunch bags
and soap; labor costs that have a direct relation to food service
operations, such as wages of cooks and dining hall supervisors; fuel,
water, electricity, and other utilities used for the food service
operation; and other costs directly related to the food service
operation. Charges for transportation, depreciation, overhead and
similar charges may not be included. Receipts and other cost records for
a representative pay period must be retained and must be available for
inspection by the CO for a period of 1 year.
(2) Effective date for higher charge. The employer may begin
charging the higher rate upon receipt of a favorable decision from the
CO unless the CO sets a later effective date in the decision.
(c) Appeal. In the event the employer's petition for a higher meal
charge is denied in whole or in part, the employer may appeal the
denial. Appeals will be filed with the Chief Administrative Law Judge.
ALJ's will hear such appeals according to the procedures in 29 CFR part
18, except that the appeal will not be considered as a complaint to
which an answer is required. The decision of the ALJ is the final
decision of the Secretary.
Sec. 655.1315 Administrative review and de novo hearing before an
administrative law judge.
(a) Administrative review--(1) Consideration. Whenever an employer
has requested an administrative review before an ALJ of a decision by
the CO: Not to accept for consideration an Application for Temporary
Employment Certification; to deny an Application for Temporary
Employment Certification; to deny an amendment of an Application for
Temporary Employment Certification; or to deny an extension of an
Application for Temporary Employment Certification, the CO will send a
certified copy of the ETA case file to the Chief Administrative Law
Judge by means normally assuring next-day delivery. The Chief
Administrative Law Judge will immediately assign an ALJ (which may be a
panel of such persons designated by the Chief Administrative Law Judge
from BALCA established by 20 CFR part 656, which will hear and decide
the appeal as set forth in this section) to review the record for legal
sufficiency. The ALJ may not remand the case and may not receive
evidence in addition to what the CO used to make the determination.
(2) Decision. Within 5 business days after receipt of the ETA case
file the ALJ will, on the basis of the written record and after due
consideration of any written submissions (which may not include new
evidence) from the parties involved or amici curiae, either affirm,
reverse, or modify the CO's decision by written decision. The decision
of the ALJ must specify the reasons for the action taken and must be
immediately provided to the employer, the CO, the Administrator, OFLC,
and DHS by means normally assuring next-day delivery. The ALJ's decision
is the final decision of the Secretary.
(b) De novo hearing. (1) Request for hearing; conduct of hearing.
Whenever an employer has requested a de novo hearing before an ALJ of a
decision by the CO: Not to accept for consideration an Application for
Temporary Employment Certification; to deny an Application for Temporary
Employment Certification; to deny an amendment of an Application for
Temporary Employment Certification; or to deny an extension of an
Application for Temporary Employment Certification, the CO will send a
certified copy of the ETA case file to the Chief Administrative Law
Judge by means normally assuring next-day delivery. The Chief
Administrative Law Judge will immediately assign an ALJ (which may be a
panel of such persons designated by the Chief Administrative Law Judge
from BALCA established by 20 CFR part 656 of this chapter, but which
will hear and decide the appeal as provided in this section) to conduct
the de novo hearing. The procedures in 29 CFR part 18 apply to such
hearings, except that:
(i) The appeal will not be considered to be a complaint to which an
answer is required;
(ii) The ALJ will ensure that the hearing is scheduled to take place
within 5 calendar days after the ALJ's
[[Page 531]]
receipt of the ETA case file, if the employer so requests, and will
allow for the introduction of new evidence; and
(iii) The ALJ's decision must be rendered within 10 calendar days
after the hearing.
(2) Decision. After a de novo hearing, the ALJ must affirm, reverse,
or modify the CO's determination, and the ALJ's decision must be
provided immediately to the employer, CO, Administrator, OFLC, and DHS
by means normally assuring next-day delivery. The ALJ's decision is the
final decision of the Secretary.
Sec. 655.1316 Job Service Complaint System; enforcement of work
contracts.
(a) Complaints arising under this subpart may be filed through the
Job Service Complaint System, as described in 20 CFR part 658, Subpart
E. Complaints which involve worker contracts must be referred by the SWA
to ESA for appropriate handling and resolution, as described in 29 CFR
part 501. As part of this process, ESA may report the results of its
investigation to the Administrator, OFLC for consideration of employer
penalties or such other action as may be appropriate.
(b) Complaints alleging that an employer discouraged an eligible
U.S. worker from applying, failed to hire, discharged, or otherwise
discriminated against an eligible U.S. worker, or discovered violations
involving the same, may be referred to the U.S. Department of Justice,
Civil Rights Division, Office of Special Counsel for Unfair Immigration
Related Employment Practices (OSC), in addition to any activity,
investigation, and/or enforcement action taken by ETA or an SWA.
Likewise, if OSC becomes aware of a violation of these regulations, it
may provide such information to the appropriate SWA and the CO.
Sec. 655.1317 Revocation of approved labor certifications.
(a) Basis for DOL revocation. The CO, in consultation with the
Administrator, OFLC, may revoke a temporary agricultural labor
certification approved under this subpart, if, after notice and
opportunity for a hearing (or failure to file rebuttal evidence), it is
found that any of the following violations were committed with respect
to that temporary agricultural labor certification:
(1) The CO finds that issuance of the temporary agricultural labor
certification was not justified due to a willful misrepresentation on
the application;
(2) The CO finds that the employer:
(i) Willfully violated a material term or condition of the approved
temporary agricultural labor certification or the H-2A regulations,
unless otherwise provided under paragraphs (a)(2)(ii) through (iv) of
this section; or
(ii) Failed, after notification, to cure a substantial violation of
the applicable housing standards set out in 20 CFR 655.104(d); or
(iii) Significantly failed to cooperate with a DOL investigation or
with a DOL official performing an investigation, inspection, or law
enforcement function under sec. 218 of the INA at 8 U.S.C. 1188, this
subpart, or 29 CFR part 501 (ESA enforcement of contractual
obligations); or
(iv) Failed to comply with one or more sanctions or remedies imposed
by the ESA for violation(s) of obligations found by that agency, or with
one or more decisions or orders of the Secretary or a court order
secured by the Secretary under sec. 218 of the INA at 8 U.S.C. 1188,
this subpart, or 29 CFR part 501 (ESA enforcement of contractual
obligations).
(3) The CO determines after a recommendation is made by the WHD ESA
in accordance with 29 CFR 501.20, which governs when a recommendation of
revocation may be made to ETA, that the conduct complained of upon
examination meets the standards of paragraph (a)(1) or (2) of this
section; or
(4) If a court or the DHS, or, as a result of an audit, the CO,
determines that there was fraud or willful misrepresentation involving
the Application for Temporary Employment Certification.
(b) DOL procedures for revocation. (1) The CO will send to the
employer (and his attorney or agent) a Notice of Intent to Revoke by
means normally ensuring next-day delivery, which will contain a detailed
statement of the grounds for the proposed revocation and the time
[[Page 532]]
period allowed for the employer's rebuttal. The employer may submit
evidence in rebuttal within 14 calendar days of the date the notice is
issued. The CO must consider all relevant evidence presented in deciding
whether to revoke the temporary agricultural labor certification.
(2) If rebuttal evidence is not timely filed by the employer, the
Notice of Intent to Revoke will become the final decision of the
Secretary and take effect immediately at the end of the 14-day period.
(3) If, after reviewing the employer's timely filed rebuttal
evidence, the CO finds that the employer more likely than not meets one
or more of the bases for revocation under Sec. 655.117(a), the CO will
notify the employer, by means normally ensuring next-day delivery,
within 14 calendar days after receiving such timely filed rebuttal
evidence, of his/her final determination that the temporary agricultural
labor certification should be revoked. The CO's notice will contain a
detailed statement of the bases for the decision, and must offer the
employer an opportunity to request a hearing. The notice must state
that, to obtain such a hearing, the employer must, within 10 calendar
days of the date of the notice file a written request to the Chief
Administrative Law Judge, United States Department of Labor, 800 K
Street, NW., Suite 400-N, Washington, DC 20001-8002, and simultaneously
serve a copy to the Administrator, OFLC. The timely filing of a request
for a hearing will stay the revocation pending the outcome of the
hearing.
(c) Hearing. (1) Within 5 business days of receipt of the request
for a hearing, the CO will send a certified copy of the ETA case file to
the Chief Administrative Law Judge by means normally assuring next-day
delivery. The Chief Administrative Law Judge will immediately assign an
ALJ to conduct the hearing. The procedures in 29 CFR part 18 apply to
such hearings, except that:
(i) The request for a hearing will not be considered to be a
complaint to which an answer is required;
(ii) The ALJ will ensure that the hearing is scheduled to take place
within 15 calendar days after the ALJ's receipt of the ETA case file, if
the employer so requests, and will allow for the introduction of new
evidence; and
(iii) The ALJ's decision must be rendered within 20 calendar days
after the hearing.
(2) Decision. After the hearing, the ALJ must affirm, reverse, or
modify the CO's determination. The ALJ's decision must be provided
immediately to the employer, CO, Administrator, OFLC, DHS, and DOS by
means normally assuring next-day delivery. The ALJ's decision is the
final decision of the Secretary.
(d) Employer's obligations in the event of revocation. If an
employer's temporary agricultural labor certification is revoked under
this section, and the workers have departed the place of recruitment,
the employer will be responsible for:
(1) Reimbursement of actual inbound transportation and subsistence
expenses, as if the worker meets the requirements for payment under
Sec. 655.104(h)(1);
(2) The worker's outbound transportation expenses, as if the worker
meets the requirements for payment under Sec. 655.104(h)(2);
(3) Payment to the worker of the amount due under the three-fourths
guarantee as required by Sec. 655.104(i); and
(4) Any other wages, benefits, and working conditions due or owing
to the worker under these regulations.
Sec. 655.1318 Debarment.
(a) The Administrator, OFLC may not issue future labor
certifications under this subpart to an employer and any successor in
interest to the debarred employer, subject to the time limits set forth
in paragraph (c) of this section, if:
(1) The Administrator, OFLC finds that the employer substantially
violated a material term or condition of its temporary labor
certification with respect to the employment of domestic or nonimmigrant
workers; and
(2) The Administrator, OFLC issues a Notice of Intent to Debar no
later than 2 years after the occurrence of the violation.
(b) The Administrator, OFLC may not issue future labor
certifications
[[Page 533]]
under this subpart to an employer represented by an agent or attorney,
subject to the time limits set forth in paragraph (c) of this section,
if:
(1) The Administrator, OFLC finds that the agent or attorney
participated in, had knowledge of, or had reason to know of, an
employer's substantial violation; and
(2) The Administrator, OFLC issues the agent or attorney a Notice of
Intent to Debar no later than 2 years after the occurrence of the
violation.
(c) No employer, attorney, or agent may be debarred under this
subpart for more than 3 years.
(d) For the purposes of this section, a substantial violation
includes:
(1) A pattern or practice of acts of commission or omission on the
part of the employer or the employer's agent which:
(i) Are significantly injurious to the wages or benefits required to
be offered under the H-2A program, or working conditions of a
significant number of the employer's U.S. or H-2A workers; or
(ii) Reflect a significant failure to offer employment to all
qualified domestic workers who applied for the job opportunity for which
certification was being sought, except for lawful job-related reasons;
or
(iii) Reflect a willful failure to comply with the employer's
obligations to recruit U.S. workers as set forth in this subpart; or
(iv) Reflect a significant failure to comply with the audit process
in violation of Sec. 655.112; or
(v) Reflect the employment of an H-2A worker outside the area of
intended employment, or in an activity/activities, not listed in the job
order (other than an activity minor and incidental to the activity/
activities listed in the job order), or after the period of employment
specified in the job order and any approved extension;
(2) The employer's persistent or prolonged failure to pay the
necessary fee in a timely manner, following the issuance of a deficiency
notice to the applicant and allowing for a reasonable period for
response;
(3) Fraud involving the Application for Temporary Employment
Certification or a response to an audit;
(4) A significant failure to cooperate with a DOL investigation or
with a DOL official performing an investigation, inspection, or law
enforcement function under sec. 218 of the INA at 8 U.S.C. 1188, this
subpart, or 29 CFR part 501 (ESA enforcement of contractual
obligations); or
(5) A significant failure to comply with one or more sanctions or
remedies imposed by the ESA for violation(s) of obligations found by
that agency (if applicable), or with one or more decisions or orders of
the Secretary or a court order secured by the Secretary under sec. 218
of the INA at 8 U.S.C. 1188, this subpart, or 29 CFR part 501 (ESA
enforcement of contractual obligations); or
(6) A single heinous act showing such flagrant disregard for the law
that future compliance with program requirements cannot reasonably be
expected.
(e) DOL procedures for debarment under this section will be as
follows:
(1) The Administrator, OFLC will send to the employer, attorney, or
agent a Notice of Intent to Debar by means normally ensuring next-day
delivery, which will contain a detailed statement of the grounds for the
proposed debarment. The employer, attorney or agent may submit evidence
in rebuttal within 14 calendar days of the date the notice is issued.
The Administrator, OFLC must consider all relevant evidence presented in
deciding whether to debar the employer, attorney, or agent.
(2) If rebuttal evidence is not timely filed by the employer,
attorney, or agent, the Notice of Intent to Debar will become the final
decision of the Secretary and take effect immediately at the end of the
14-day period.
(3) If, after reviewing the employer's timely filed rebuttal
evidence, the Administrator, OFLC determines that the employer,
attorney, or agent more likely than not meets one or more of the bases
for debarment under Sec. 655.118(d), the Administrator, OFLC will
notify the employer, by means normally ensuring next-day delivery,
within 14 calendar days after receiving such timely filed rebuttal
evidence, of his/her final determination of debarment and of the
employer, attorney, or agent's right to appeal.
[[Page 534]]
(4) The Notice of Debarment must be in writing, must state the
reason for the debarment finding, including a detailed explanation of
the grounds for and the duration of the debarment, and must offer the
employer, attorney, or agent an opportunity to request a hearing. The
notice must state that, to obtain such a hearing, the debarred party
must, within 30 calendar days of the date of the notice, file a written
request to the Chief Administrative Law Judge, United States Department
of Labor, 800 K Street, NW., Suite 400-N, Washington, DC 20001-8002, and
simultaneously serve a copy to the Administrator, OFLC. The debarment
will take effect 30 days from the date the Notice of Debarment is issued
unless a request for a hearing is properly filed within 30 days from the
date the Notice of Debarment is issued. The timely filing of the request
for a hearing stays the debarment pending the outcome of the hearing.
(5)(i) Hearing. Within 10 days of receipt of the request for a
hearing, the Administrator, OFLC will send a certified copy of the ETA
case file to the Chief Administrative Law Judge by means normally
assuring next-day delivery. The Chief Administrative Law Judge will
immediately assign an ALJ to conduct the hearing. The procedures in 29
CFR part 18 apply to such hearings, except that the request for a
hearing will not be considered to be a complaint to which an answer is
required;
(ii) Decision. After the hearing, the ALJ must affirm, reverse, or
modify the Administrator, OFLC 's determination. The ALJ's decision must
be provided immediately to the employer, Administrator, OFLC, DHS, and
DOS by means normally assuring next-day delivery. The ALJ's decision is
the final decision of the Secretary, unless either party, within 30
calendar days of the ALJ's decision, seeks review of the decision with
the Administrative Review Board (ARB).
(iii) Review by the ARB.
(A) Any party wishing review of the decision of an ALJ must, within
30 days of the decision of the ALJ, petition the ARB to review the
decision. Copies of the petition must be served on all parties and on
the ALJ. The ARB must decide whether to accept the petition within 30
days of receipt. If the ARB declines to accept the petition or if the
ARB does not issue a notice accepting a petition within 30 days after
the receipt of a timely filing of the petition, the decision of the ALJ
shall be deemed the final agency action. If a petition for review is
accepted, the decision of the ALJ shall be stayed unless and until the
ARB issues an order affirming the decision. The ARB must serve notice of
its decision to accept or not to accept the petition upon the ALJ and
upon all parties to the proceeding in person or by certified mail.
(B) Upon receipt of the ARB's notice to accept the petition, the
Office of Administrative Law Judges shall promptly forward a copy of the
complete hearing record to the ARB.
(C) Where the ARB has determined to review such decision and order,
the ARB shall notify each party of:
(1) The issue or issues raised;
(2) The form in which submissions shall be made (i.e., briefs, oral
argument, etc.); and
(3) The time within which such presentation shall be submitted.
(D) The ARB's final decision must be issued within 90 days from the
notice granting the petition and served upon all parties and the ALJ, in
person or by certified mail. If the ARB fails to provide a decision
within 90 days from the notice granting the petition, the ALJ's decision
will be the final decision of the Secretary.
(f) Debarment involving members of associations. If the
Administrator, OFLC determines a substantial violation has occurred, and
if an individual employer-member of an agricultural association acting
as a joint employer is determined to have committed the violation, the
debarment determination will apply only to that member of the
association unless the Administrator, OFLC determines that the
association or other association members participated in the violation,
in which case the debarment will be invoked against the complicit
association or other association members.
(g) Debarment involving agricultural associations acting as joint
employers. If the Administrator, OFLC determines a substantial violation
has occurred, and
[[Page 535]]
if an agricultural association acting as a joint employer with its
members is found to have committed the violation, the debarment
determination will apply only to the association, and will not be
applied to any individual employer-member of the association unless the
Administrator, OFLC determines that the member participated in the
violation, in which case the debarment will be invoked against any
complicit association members as well. An association debarred from the
H-2A temporary labor certification program will not be permitted to
continue to file as a joint employer with its members during the period
of the debarment.
(h) Debarment involving agricultural associations acting as sole
employers. If the Administrator, OFLC determines a substantial violation
has occurred, and if an agricultural association acting as a sole
employer is determined to have committed the violation, the debarment
determination will apply only to the association and any successor in
interest to the debarred association.
Sec. 655.1319 Document retention requirements.
(a) Entities required to retain documents. All employers receiving a
certification of the Application for Temporary Employment Certification
for agricultural workers under this subpart are required to retain the
documents and records as provided in the regulations cited in paragraph
(c) of this section.
(b) Period of required retention. Records and documents must be
retained for a period of 3 years from the date of certification of the
Application for Temporary Employment Certification.
(c) Documents and records to be retained. (1) All applicants must
retain the following documentation:
(i) Proof of recruitment efforts including:
(A) Job order placement as specified in Sec. 655.102(e)(1);
(B) Advertising as specified in Sec. 655.102(g)(3), or, if used,
professional, trade, or ethnic publications;
(C) Contact with former U.S. workers as specified in Sec.
655.102(h);
(D) Multi-state recruitment efforts (if required under Sec.
655.102(i)) as specified in Sec. 655.102(g)(3);
(ii) Substantiation of information submitted in the recruitment
report prepared in accordance with Sec. 655.102(k)(2), such as evidence
of non-applicability of contact of former employees as specified in
Sec. 655.102(h);
(iii) The supplemental recruitment report as specified in Sec.
655.102(k) and any supporting resumes and contact information as
specified in Sec. 655.102(k)(3);
(iv) Proof of workers' compensation insurance or State law coverage
as specified in Sec. 655.104(e);
(v) Records of each worker's earnings as specified in Sec.
655.104(j);
(vi) The work contract or a copy of the Application for Temporary
Employment Certification as defined in 29 CFR 501.10 and specified in
Sec. 655.104(q);
(vii) The wage determination provided by the NPC as specified in
Sec. 655.108;
(viii) Copy of the request for housing inspection submitted to the
SWA as specified in Sec. 655.104(d); and
(2) In addition to the documentation specified in paragraph (c)(1)
of this section, H-2ALCs must also retain:
(i) Statements of compliance with the housing and transportation
obligations for each fixed-site employer which provided housing or
transportation and to which the H-2ALC provided workers during the
validity period of the certification, unless such housing and
transportation obligations were met by the H-2ALC itself, in which case
proof of compliance by the H-2ALC must be retained, as specified in
Sec. 655.101(a)(5);
(ii) Proof of surety bond coverage which includes the name, address,
and phone number of the surety, the bond number of other identifying
designation, the amount of coverage, and the payee, as specified in 29
CFR 501.8; and
(3) Associations filing must retain documentation substantiating
their status as an employer or agent, as specified in Sec.
655.101(a)(1).
[[Page 536]]
PART 656_LABOR CERTIFICATION PROCESS FOR PERMANENT EMPLOYMENT OF ALIENS
IN THE UNITED STATES
Subpart A_Purpose and Scope of Part 656
Sec.
656.1 Purpose and scope of part 656.
656.2 Description of the Immigration and Nationality Act and of the
Department of Labor's role thereunder.
656.3 Definitions, for purposes of this part, of terms used in this
part.
Subpart B_Occupational Labor Certification Determinations
656.5 Schedule A.
Subpart C_Labor Certification Process
656.10 General instructions.
656.11 Substitutions and modifications to applications.
656.12 Improper commerce and payment.
656.15 Applications for labor certification for Schedule A occupations.
656.16 Labor certification applications for sheepherders.
656.17 Basic labor certification process.
656.18 Optional special recruitment and documentation procedures for
college and university teachers.
656.19 Live-in household domestic service workers.
656.20 Audit procedures.
656.21 Supervised recruitment.
656.24 Labor certification determinations.
656.26 Board of Alien Labor Certification Appeals review of denials of
labor certification.
656.27 Consideration by and decisions of the Board of Alien Labor
Certification Appeals.
656.30 Validity and invalidation of labor certifications.
656.31 Labor certification applications involving fraud, willful
misrepresentation, or violations of this part.
656.32 Revocation of approved labor certifications.
Subpart D_Determination of Prevailing Wage
656.40 Determination of prevailing wage for labor certification
purposes.
656.41 Review of prevailing wage determinations.
Authority: 8 U.S.C. 1182(a)(5)(A), 1182(p)(1); sec.122, Public Law
101-649, 109 Stat. 4978; and Title IV, Public Law 105-277, 112 Stat.
2681.
Source: 69 FR 77386, Dec. 27, 2004, unless otherwise noted.
Subpart A_Purpose and Scope of Part 656
Sec. 656.1 Purpose and scope of part 656.
(a) Under section 212(a)(5)(A) of the Immigration and Nationality
Act (INA or Act) (8 U.S.C. 1182(a)(5)(A)), certain aliens may not obtain
immigrant visas for entrance into the United States in order to engage
in permanent employment unless the Secretary of Labor has first
certified to the Secretary of State and to the Secretary of Homeland
Security that:
(1) There are not sufficient United States workers who are able,
willing, qualified and available at the time of application for a visa
and admission into the United States and at the place where the alien is
to perform the work; and
(2) The employment of the alien will not adversely affect the wages
and working conditions of United States workers similarly employed.
(b) The regulations under this part set forth the procedures through
which such immigrant labor certifications may be applied for, and
granted or denied.
(c) Correspondence and questions about the regulations in this part
should be addressed to: Office of Foreign Labor Certification,
Employment and Training Administration, 200 Constitution Avenue, NW.,
Room C-4312, Washington, DC 20210.
[69 FR 77386, Dec. 27, 2004, as amended at 71 FR 35522, June 21, 2006]
Sec. 656.2 Description of the Immigration and Nationality Act and of
the Department of Labor's role thereunder.
(a) Description of the Act. The Act (8 U.S.C. 1101 et seq.)
regulates the admission of aliens into the United States. The Act
designates the Secretary of Homeland Security and the Secretary of State
as the principal administrators of its provisions.
(b) Burden of proof under the Act. Section 291 of the Act (8 U.S.C.
1361) provides, in pertinent part, that:
Whenever any person makes application for a visa or any other
documentation required for entry, or makes application for admission, or
otherwise attempts to enter the United States, the burden of proof shall
[[Page 537]]
be upon such person to establish that he is eligible to receive such
visa or such document, or is not subject to exclusion under any
provision of this Act * * *.
(c)(1) Role of the Department of Labor. The permanent labor
certification role of the Department of Labor under the Act derives from
section 212(a)(5)(A) (8 U.S.C. 1182(a)(5)(A)), which provides that any
alien who seeks admission or status as an immigrant for the purpose of
employment under paragraph (2) or (3) of section 203(b) of the Act may
not be admitted unless the Secretary of Labor has first certified to the
Secretary of State and to the Secretary of Homeland Security that:
(i) There are not sufficient United States workers who are able,
willing, qualified, and available at the time of application for a visa
and admission to the United States and at the place where the alien is
to perform such skilled or unskilled labor; and
(ii) The employment of such alien will not adversely affect the
wages and working conditions of workers in the United States similarly
employed.
(2) This certification is referred to in this part 656 as a ``labor
certification.''
(3) We certify the employment of aliens in several instances: For
the permanent employment of aliens under this part; and for temporary
employment of aliens for agricultural and nonagricultural employment in
the United States classified under 8 U.S.C. 1101(a)(15)(H)(ii), under
the DHS regulation at 8 CFR 214.2(h)(5) and (6) and sections
101(a)(15)(H)(ii), 214, and 218 of the Act. See 8 U.S.C.
1101(a)(15)(H)(ii), 1184, and 1188. We also administer labor attestation
and labor condition application programs for the admission and/or work
authorization of the following nonimmigrants: Specialty occupations and
fashion models (H-1B visas), specialty occupations from countries with
which the U.S. has entered agreements listed in the INA (H-1B1 visas),
registered nurses (H-1C visas), and crewmembers performing longshore
work (D visas), classified under 8 U.S.C. 1101(a)(15)(H)(i)(b),
1101(a)(15)(H)(i)(b1), 1101(a)(15)(H)(i)(c), and 1101(a)(15)(D),
respectively. See also 8 U.S.C. 1184(c), (m), and (n), and 1288.
Sec. 656.3 Definitions, for purposes of this part, of terms used in
this part.
Act means the Immigration and Nationality Act, as amended, 8 U.S.C.
1101 et seq.
Agent means a person who is not an employee of an employer, and who
has been designated in writing to act on behalf of an alien or employer
in connection with an application for labor certification.
Applicant means a U.S. worker (see definition of U.S. worker below)
who is applying for a job opportunity for which an employer has filed an
Application for Permanent Employment Certification (ETA Form 9089).
Application means an Application for Permanent Employment
Certification submitted by an employer (or its agent or attorney) in
applying for a labor certification under this part.
Area of intended employment means the area within normal commuting
distance of the place (address) of intended employment. There is no
rigid measure of distance which constitutes a normal commuting distance
or normal commuting area, because there may be widely varying factual
circumstances among different areas (e.g., normal commuting distances
might be 20, 30, or 50 miles). If the place of intended employment is
within a Metropolitan Statistical Area (MSA) or a Primary Metropolitan
Statistical Area (PMSA), any place within the MSA or PMSA is deemed to
be within normal commuting distance of the place of intended employment;
however, not all locations within a Consolidated Metropolitan
Statistical Area (CMSA) will be deemed automatically to be within normal
commuting distance. The borders of MSA's and PMSA's are not controlling
in the identification of the normal commuting area; a location outside
of an MSA or PMSA (or a CMSA) may be within normal commuting distance of
a location that is inside (e.g., near the border of) the MSA or PMSA (or
CMSA). The terminology CMSAs and PMSAs are being replaced by the Office
of Management and Budget (OMB). However, ETA will continue to recognize
the use of these area concepts as well as their replacements.
[[Page 538]]
Attorney means any person who is a member in good standing of the
bar of the highest court of any state, possession, territory, or
commonwealth of the United States, or the District of Columbia, and who
is not under suspension or disbarment from practice before any court or
before DHS or the United States Department of Justice's Executive Office
for Immigration Review. Such a person is permitted to act as an agent,
representative, or attorney for an employer and/or alien under this
part.
Barter, for purposes of an Application for Permanent Employment
Certification (Form ETA 9089) or an Application for Alien Labor
Certification (Form ETA 750), means the transfer of ownership of a labor
certification application or certification from one person to another by
voluntary act or agreement in exchange for a commodity, service,
property or other valuable consideration.
Board of Alien Labor Certification Appeals (BALCA or Board) means
the permanent Board established by this part, chaired by the Chief
Administrative Law Judge, and consisting of Administrative Law Judges
assigned to the Department of Labor and designated by the Chief
Administrative Law Judge to be members of the Board of Alien Labor
Certification Appeals. The Board of Alien Labor Certification Appeals is
located in Washington, DC, and reviews and decides appeals in
Washington, DC.
Certifying Officer (CO) means a Department of Labor official who
makes determinations about whether or not to grant applications for
labor certifications.
Closely-held Corporation means a corporation that typically has
relatively few shareholders and whose shares are not generally traded in
the securities market.
Employer means:
(1) A person, association, firm, or a corporation that currently has
a location within the United States to which U.S. workers may be
referred for employment and that proposes to employ a full-time employee
at a place within the United States, or the authorized representative of
such a person, association, firm, or corporation. An employer must
possess a valid Federal Employer Identification Number (FEIN). For
purposes of this definition, an ``authorized representative'' means an
employee of the employer whose position or legal status authorizes the
employee to act for the employer in labor certification matters. A labor
certification can not be granted for an Application for Permanent
Employment Certification filed on behalf of an independent contractor.
(2) Persons who are temporarily in the United States, including but
not limited to, foreign diplomats, intra-company transferees, students,
and exchange visitors, visitors for business or pleasure, and
representatives of foreign information media can not be employers for
the purpose of obtaining a labor certification for permanent employment.
Employment means:
(1) Permanent, full-time work by an employee for an employer other
than oneself. For purposes of this definition, an investor is not an
employee. In the event of an audit, the employer must be prepared to
document the permanent and full-time nature of the position by
furnishing position descriptions and payroll records for the job
opportunity involved in the Application for Permanent Employment
Certification.
(2) Job opportunities consisting solely of job duties that will be
performed totally outside the United States, its territories,
possessions, or commonwealths can not be the subject of an Application
for Permanent Employment Certification.
Employment and Training Administration (ETA) means the agency within
the Department of Labor (DOL) that includes the Office of Foreign Labor
Certification (OFLC).
Immigration Officer means an official of the Department of Homeland
Security, United States Citizenship and Immigration Services (USCIS) who
handles applications for labor certifications under this part.
Job opportunity means a job opening for employment at a place in the
United States to which U.S. workers can be referred.
Nonprofessional occupation means any occupation for which the
attainment of a bachelor's or higher degree is not a usual requirement
for the occupation.
[[Page 539]]
Non-profit or tax-exempt organization for the purposes of Sec.
656.40 means an organization that:
(1) Is defined as a tax exempt organization under the Internal
Revenue Code of 1986, section 501(c)(3), (c)(4), or (c)(6) (26 U.S.C.
501(c)(3), (c)(4) or (c)(6)); and
(2) Has been approved as a tax-exempt organization for research or
educational purposes by the Internal Revenue Service.
Office of Foreign Labor Certification means the organizational
component within the Employment and Training Administration that
provides national leadership and policy guidance and develops
regulations and procedures to carry out the responsibilities of the
Secretary of Labor under the Immigration and Nationality Act, as
amended, concerning alien workers seeking admission to the United States
in order to work under section 212(a)(5)(A) of the Immigration and
Nationality Act, as amended.
O*NET means the system developed by the Department of Labor,
Employment and Training Administration, to provide to the general public
information on skills, abilities, knowledge, work activities, interests
and specific vocational preparation levels associated with occupations.
O*NET is based on the Standard Occupational Classification system.
Further information about O*NET can be found at http://
www.onetcenter.org.
Prevailing wage determination (PWD) means the prevailing wage
provided or approved by an OFLC National Processing Center (NPC), in
accordance with OFLC guidance governing foreign labor certification
programs. This includes PWD requests processed for purposes of employer
petitions filed with DHS under Schedule A or for sheepherders.
Professional occupation means an occupation for which the attainment
of a bachelor's or higher degree is a usual education requirement. A
beneficiary of an application for permanent alien employment
certification involving a professional occupation need not have a
bachelor's or higher degree to qualify for the professional occupation.
However, if the employer is willing to accept work experience in lieu of
a baccalaureate or higher degree, such work experience must be
attainable in the U.S. labor market and must be stated on the
application form. If the employer is willing to accept an equivalent
foreign degree, it must be clearly stated on the Application for
Permanent Employment Certification form.
Purchase, for purposes of an Application for Permanent Employment
Certification (Form ETA 9089) or an Application for Alien Labor
Certification (Form ETA 750), means the transfer of ownership of a labor
certification application or certification from one person to another by
voluntary act and agreement, based on a valuable consideration.
Sale, for purposes of an Application for Permanent Employment
Certification (Form ETA 9089) or an Application for Alien Labor
Certification (Form ETA 750), means an agreement between two parties,
called, respectively, the seller (or vendor) and the buyer (or
purchaser) by which the seller, in consideration of the payment or
promise of payment of a certain price in money terms, transfers
ownership of a labor certification application or certification to the
buyer.
Secretary means the Secretary of Labor, the chief official of the
U.S. Department of Labor, or the Secretary's designee.
Secretary of Homeland Security means the chief official of the U.S.
Department of Homeland Security or the Secretary of Homeland Security's
designee.
Secretary of State means the chief official of the U.S. Department
of State or the Secretary of State's designee.
Specific vocational preparation (SVP) means the amount of lapsed
time required by a typical worker to learn the techniques, acquire the
information, and develop the facility needed for average performance in
a specific job-worker situation. Lapsed time is not the same as work
time. For example, 30 days is approximately 1 month of lapsed time and
not six 5-day work weeks, and 3 months refers to 3 calendar months and
not 90 work days. The various levels of specific vocational preparation
are provided below.
------------------------------------------------------------------------
Level Time
------------------------------------------------------------------------
1............................... Short demonstration.
[[Page 540]]
2............................... Anything beyond short demonstration up
to and including 30 days.
3............................... Over 30 days up to and including 3
months.
4............................... Over 3 months up to and including 6
months.
5............................... Over 6 months up to and including 1
year.
6............................... Over 1 year up to and including 2
years.
7............................... Over 2 years up to and including 4
years.
8............................... Over 4 years up to and including 10
years.
9............................... Over 10 years.
------------------------------------------------------------------------
State Workforce Agency (SWA), formerly known as State Employment
Security Agency (SESA), means the state agency that receives funds under
the Wagner-Peyser Act to provide employment-related services to U.S.
workers and employers and/or administers the public labor exchange
delivered through the state's one-stop delivery system in accordance
with the Wagner-Peyser Act.
United States, when used in a geographic sense, means the 50 states,
the District of Columbia, Puerto Rico, the U.S. Virgin Islands, and
Guam.
United States worker means any worker who is:
(1) A U.S. citizen;
(2) A U.S. national;
(3) Lawfully admitted for permanent residence;
(4) Granted the status of an alien lawfully admitted for temporary
residence under 8 U.S.C. 1160(a), 1161(a), or 1255a(a)(1);
(5) Admitted as a refugee under 8 U.S.C. 1157; or
(6) Granted asylum under 8 U.S.C. 1158.
[69 FR 77386, Dec. 27, 2004, as amended at 71 FR 35522, June 21, 2006;
72 FR 27944, May 17, 2007; 73 FR 78068, Dec. 19, 2008]
Subpart B_Occupational Labor Certification Determinations
Sec. 656.5 Schedule A.
We have determined there are not sufficient United States workers
who are able, willing, qualified, and available for the occupations
listed below on Schedule A and the wages and working conditions of
United States workers similarly employed will not be adversely affected
by the employment of aliens in Schedule A occupations. An employer
seeking a labor certification for an occupation listed on Schedule A may
apply for that labor certification under Sec. 656.15.
Schedule A
(a) Group I:
(1) Persons who will be employed as physical therapists, and who
possess all the qualifications necessary to take the physical therapist
licensing examination in the state in which they propose to practice
physical therapy.
(2) Aliens who will be employed as professional nurses; and
(i) Who have received a Certificate from the Commission on Graduates
of Foreign Nursing Schools (CGFNS);
(ii) Who hold a permanent, full and unrestricted license to practice
professional nursing in the state of intended employment; or
(iii) Who have passed the National Council Licensure Examination for
Registered Nurses (NCLEX-RN), administered by the National Council of
State Boards of Nursing.
(3) Definitions of Group I occupations:
(i) Physical therapist means a person who applies the art and
science of physical therapy to the treatment of patients with
disabilities, disorders and injuries to relieve pain, develop or restore
function, and maintain performance, using physical means, such as
exercise, massage, heat, water, light, and electricity, as prescribed by
a physician (or a surgeon).
(ii) Professional nurse means a person who applies the art and
science of nursing which reflects comprehension of principles derived
from the physical, biological and behavioral sciences. Professional
nursing generally includes making clinical judgments involving the
observation, care and counsel of persons requiring nursing care;
administering of medicines and treatments prescribed by the physician or
dentist; and participation in the activities for the promotion of health
and prevention of illness in others. A program of study for professional
nurses generally includes theory and practice in clinical areas such as
obstetrics, surgery, pediatrics, psychiatry, and medicine.
(b) Group II:
(1) Sciences or arts (except performing arts). Aliens (except for
aliens in the performing arts) of exceptional ability
[[Page 541]]
in the sciences or arts including college and university teachers of
exceptional ability who have been practicing their science or art during
the year prior to application and who intend to practice the same
science or art in the United States. For purposes of this group, the
term ``science or art'' means any field of knowledge and/or skill with
respect to which colleges and universities commonly offer specialized
courses leading to a degree in the knowledge and/or skill. An alien,
however, need not have studied at a college or university in order to
qualify for the Group II occupation.
(2) Performing arts. Aliens of exceptional ability in the performing
arts whose work during the past 12 months did require, and whose
intended work in the United States will require, exceptional ability.
Subpart C_Labor Certification Process
Sec. 656.10 General instructions.
(a) Filing of applications. A request for a labor certification on
behalf of any alien who is required by the Act to be a beneficiary of a
labor certification in order to obtain permanent resident status in the
United States may be filed as follows:
(1) Except as provided in paragraphs (a)(2), (3), and (4) of this
section, an employer seeking a labor certification must file under this
section and Sec. 656.17.
(2) An employer seeking a labor certification for a college or
university teacher must apply for a labor certification under this
section and must also file under either Sec. 656.17 or Sec. 656.18.
(3) An employer seeking labor certification for an occupation listed
on Schedule A must apply for a labor certification under this section
and Sec. 656.15.
(4) An employer seeking labor certification for a sheepherder must
apply for a labor certification under this section and must also choose
to file under either Sec. 656.16 or Sec. 656.17.
(b) Representation. (1) Employers may have agents or attorneys
represent them throughout the labor certification process. If an
employer intends to be represented by an agent or attorney, the employer
must sign the statement set forth on the Application for Permanent
Employment Certification form: That the attorney or agent is
representing the employer and the employer takes full responsibility for
the accuracy of any representations made by the attorney or agent.
Whenever, under this part, any notice or other document is required to
be sent to the employer, the document will be sent to the attorney or
agent who has been authorized to represent the employer on the
Application for Permanent Employment Certification form.
(2)(i) It is contrary to the best interests of U.S. workers to have
the alien and/or agents or attorneys for either the employer or the
alien participate in interviewing or considering U.S. workers for the
job offered the alien. As the beneficiary of a labor certification
application, the alien can not represent the best interests of U.S.
workers in the job opportunity. The alien's agent and/or attorney can
not represent the alien effectively and at the same time truly be
seeking U.S. workers for the job opportunity. Therefore, the alien and/
or the alien's agent and/or attorney may not interview or consider U.S.
workers for the job offered to the alien, unless the agent and/or
attorney is the employer's representative, as described in paragraph
(b)(2)(ii) of this section.
(ii) The employer's representative who interviews or considers U.S.
workers for the job offered to the alien must be the person who normally
interviews or considers, on behalf of the employer, applicants for job
opportunities such as that offered the alien, but which do not involve
labor certifications.
(3) No person under suspension or disbarment from practice before
any court or before the DHS or the United States Department of Justice's
Executive Office for Immigration Review is permitted to act as an agent,
representative, or attorney for an employer and/or alien under this
part.
(c) Attestations. The employer must certify to the conditions of
employment listed below on the Application for Permanent Employment
Certification under penalty of perjury under 18 U.S.C. 1621 (2). Failure
to attest to any of the conditions listed below results in a denial of
the application.
[[Page 542]]
(1) The offered wage equals or exceeds the prevailing wage
determined pursuant to Sec. 656.40 and Sec. 656.41, and the wage the
employer will pay to the alien to begin work will equal or exceed the
prevailing wage that is applicable at the time the alien begins work or
from the time the alien is admitted to take up the certified employment;
(2) The wage offered is not based on commissions, bonuses or other
incentives, unless the employer guarantees a prevailing wage paid on a
weekly, bi-weekly, or monthly basis that equals or exceeds the
prevailing wage;
(3) The employer has enough funds available to pay the wage or
salary offered the alien;
(4) The employer will be able to place the alien on the payroll on
or before the date of the alien's proposed entrance into the United
States;
(5) The job opportunity does not involve unlawful discrimination by
race, creed, color, national origin, age, sex, religion, handicap, or
citizenship;
(6) The employer's job opportunity is not:
(i) Vacant because the former occupant is on strike or locked out in
the course of a labor dispute involving a work stoppage;
(ii) At issue in a labor dispute involving a work stoppage.
(7) The job opportunity's terms, conditions and occupational
environment are not contrary to Federal, state or local law;
(8) The job opportunity has been and is clearly open to any U.S.
worker;
(9) The U.S. workers who applied for the job opportunity were
rejected for lawful job-related reasons;
(10) The job opportunity is for full-time, permanent employment for
an employer other than the alien.
(d) Notice. (1) In applications filed under Sec. Sec. 656.15
(Schedule A), 656.16 (Sheepherders), 656.17 (Basic Process), 656.18
(College and University Teachers), and 656.21 (Supervised Recruitment),
the employer must give notice of the filing of the Application for
Permanent Employment Certification and be able to document that notice
was provided, if requested by the Certifying Officer, as follows:
(i) To the bargaining representative(s) (if any) of the employer's
employees in the occupational classification for which certification of
the job opportunity is sought in the employer's location(s) in the area
of intended employment. Documentation may consist of a copy of the
letter and a copy of the Application for Permanent Employment
Certification form that was sent to the bargaining representative.
(ii) If there is no such bargaining representative, by posted notice
to the employer's employees at the facility or location of the
employment. The notice must be posted for at least 10 consecutive
business days. The notice must be clearly visible and unobstructed while
posted and must be posted in conspicuous places where the employer's
U.S. workers can readily read the posted notice on their way to or from
their place of employment. Appropriate locations for posting notices of
the job opportunity include locations in the immediate vicinity of the
wage and hour notices required by 29 CFR 516.4 or occupational safety
and health notices required by 29 CFR 1903.2(a). In addition, the
employer must publish the notice in any and all in-house media, whether
electronic or printed, in accordance with the normal procedures used for
the recruitment of similar positions in the employer's organization. The
documentation requirement may be satisfied by providing a copy of the
posted notice and stating where it was posted, and by providing copies
of all the in-house media, whether electronic or print, that were used
to distribute notice of the application in accordance with the
procedures used for similar positions within the employer's
organization.
(2) In the case of a private household, notice is required under
this paragraph (d) only if the household employs one or more U.S.
workers at the time the application for labor certification is filed.
The documentation requirement may be satisfied by providing a copy of
the posted notice to the Certifying Officer.
(3) The notice of the filing of an Application for Permanent
Employment Certification must:
(i) State the notice is being provided as a result of the filing of
an application for permanent alien labor certification for the relevant
job opportunity;
[[Page 543]]
(ii) State any person may provide documentary evidence bearing on
the application to the Certifying Officer of the Department of Labor;
(iii) Provide the address of the appropriate Certifying Officer; and
(iv) Be provided between 30 and 180 days before filing the
application.
(4) If an application is filed under Sec. 656.17, the notice must
contain the information required for advertisements by Sec. 656.17(f),
must state the rate of pay (which must equal or exceed the prevailing
wage entered by the SWA on the prevailing wage request form), and must
contain the information required by paragraph (d)(3) of this section.
(5) If an application is filed on behalf of a college and university
teacher selected in a competitive selection and recruitment process, as
provided by Sec. 656.18, the notice must include the information
required for advertisements by Sec. 656.18(b)(3), and must include the
information required by paragraph (d)(3) of this section.
(6) If an application is filed under the Schedule A procedures at
Sec. 656.15, or the procedures for sheepherders at Sec. 656.16, the
notice must contain a description of the job and rate of pay, and must
meet the requirements of this section.
(e)(1)(i) Submission of evidence. Any person may submit to the
Certifying Officer documentary evidence bearing on an application for
permanent alien labor certification filed under the basic labor
certification process at Sec. 656.17 or an application involving a
college and university teacher selected in a competitive recruitment and
selection process under Sec. 656.18.
(ii) Documentary evidence submitted under paragraph (e)(1)(i) of
this section may include information on available workers, information
on wages and working conditions, and information on the employer's
failure to meet the terms and conditions for the employment of alien
workers and co-workers. The Certifying Officer must consider this
information in making his or her determination.
(2)(i) Any person may submit to the appropriate DHS office
documentary evidence of fraud or willful misrepresentation in a Schedule
A application filed under Sec. 656.15 or a sheepherder application
filed under Sec. 656.16.
(ii) Documentary evidence submitted under paragraph (e)(2) of this
section is limited to information relating to possible fraud or willful
misrepresentation. The DHS may consider this information under Sec.
656.31.
(f) Retention of documents. Copies of applications for permanent
employment certification filed with the Department of Labor and all
supporting documentation must be retained by the employer for 5 years
from the date of filing the Application for Permanent Employment
Certification.
[69 FR 77386, Dec. 27, 2004, as amended at 71 FR 35523, June 21, 2006]
Sec. 656.11 Substitutions and modifications to applications.
(a) Substitution or change to the identity of an alien beneficiary
on any application for permanent labor certification, whether filed
under this part or 20 CFR part 656 in effect prior to March 28, 2005,
and on any resulting certification, is prohibited for any request to
substitute submitted after July 16, 2007.
(b) Requests for modifications to an application will not be
accepted for applications submitted after July 16, 2007.
[72 FR 27944, May 17, 2007]
Sec. 656.12 Improper commerce and payment.
The following provision applies to applications filed under both
this part and 20 CFR part 656 in effect prior to March 28, 2005, and to
any certification resulting from those applications:
(a) Applications for permanent labor certification and approved
labor certifications are not articles of commerce. They shall not be
offered for sale, barter or purchase by individuals or entities. Any
evidence that an application for permanent labor certification or an
approved labor certification has been sold, bartered, or purchased shall
be grounds for investigation under this part and may be grounds for
denial under Sec. 656.24, revocation under Sec. 656.32, debarment
under Sec. 656.31(f), or any combination thereof.
(b) An employer must not seek or receive payment of any kind for any
activity related to obtaining permanent labor certification, including
payment
[[Page 544]]
of the employer's attorneys' fees, whether as an incentive or inducement
to filing, or as a reimbursement for costs incurred in preparing or
filing a permanent labor certification application, except when work to
be performed by the alien in connection with the job opportunity would
benefit or accrue to the person or entity making the payment, based on
that person's or entity's established business relationship with the
employer. An alien may pay his or her own costs in connection with a
labor certification, including attorneys' fees for representation of the
alien, except that where the same attorney represents both the alien and
the employer, such costs shall be borne by the employer. For purposes of
this paragraph (b), payment includes, but is not limited to, monetary
payments; wage concessions, including deductions from wages, salary, or
benefits; kickbacks, bribes, or tributes; in kind payments; and free
labor.
(c) Evidence that an employer has sought or received payment from
any source in connection with an application for permanent labor
certification or an approved labor certification, except for a third
party to whose benefit work to be performed in connection with the job
opportunity would accrue, based on that person's or entity's established
business relationship with the employer, shall be grounds for
investigation under this part or any appropriate Government agency's
procedures, and may be grounds for denial under Sec. 656.32, revocation
under Sec. 656.32, debarment under Sec. 656.31(f), or any combination
thereof.
[72 FR 27945, May 17, 2007]
Sec. 656.15 Applications for labor certification for Schedule A
occupations.
(a) Filing application. An employer must apply for a labor
certification for a Schedule A occupation by filing an application with
the appropriate DHS office, and not with an ETA application processing
center.
(b) General documentation requirements. A Schedule A application
must include:
(1) An Application for Permanent Employment Certification form,
which includes a prevailing wage determination in accordance with
Sec. Sec. 656.40 and 656.41.
(2) Evidence that notice of filing the Application for Permanent
Employment Certification was provided to the bargaining representative
or the employer's employees as prescribed in Sec. 656.10(d).
(c) Group I documentation. An employer seeking labor certification
under Group I of Schedule A must file with DHS, as part of its labor
certification application, documentary evidence of the following:
(1) An employer seeking Schedule A labor certification for an alien
to be employed as a physical therapist (Sec. 656.5(a)(1)) must file as
part of its labor certification application a letter or statement,
signed by an authorized state physical therapy licensing official in the
state of intended employment, stating the alien is qualified to take
that state's written licensing examination for physical therapists.
Application for certification of permanent employment as a physical
therapist may be made only under this Sec. 656.15 and not under Sec.
656.17.
(2) An employer seeking a Schedule A labor certification for an
alien to be employed as a professional nurse (Sec. 656.5(a)(2)) must
file as part of its labor certification application documentation that
the alien has received a Certificate from the Commission on Graduates of
Foreign Nursing Schools (CGFNS); that the alien holds a full and
unrestricted (permanent) license to practice nursing in the state of
intended employment; or that the alien has passed the National Council
Licensure Examination for Registered Nurses (NCLEX-RN). Application for
certification of employment as a professional nurse may be made only
under this Sec. 656.15(c) and not under Sec. 656.17.
(d) Group II documentation. An employer seeking a Schedule A labor
certification under Group II of Schedule A must file with DHS, as part
of its labor certification application, documentary evidence of the
following:
(1) An employer seeking labor certification on behalf of an alien to
be employed as an alien of exceptional ability in the sciences or arts
(excluding those in the performing arts) must file documentary evidence
showing the widespread acclaim and international
[[Page 545]]
recognition accorded the alien by recognized experts in the alien's
field; and documentation showing the alien's work in that field during
the past year did, and the alien's intended work in the United States
will, require exceptional ability. In addition, the employer must file
documentation about the alien from at least two of the following seven
groups:
(i) Documentation of the alien's receipt of internationally
recognized prizes or awards for excellence in the field for which
certification is sought;
(ii) Documentation of the alien's membership in international
associations, in the field for which certification is sought, which
require outstanding achievement of their members, as judged by
recognized international experts in their disciplines or fields;
(iii) Published material in professional publications about the
alien, about the alien's work in the field for which certification is
sought, which shall include the title, date, and author of such
published material;
(iv) Evidence of the alien's participation on a panel, or
individually, as a judge of the work of others in the same or in an
allied field of specialization to that for which certification is
sought;
(v) Evidence of the alien's original scientific or scholarly
research contributions of major significance in the field for which
certification is sought;
(vi) Evidence of the alien's authorship of published scientific or
scholarly articles in the field for which certification is sought, in
international professional journals or professional journals with an
international circulation;
(vii) Evidence of the display of the alien's work, in the field for
which certification is sought, at artistic exhibitions in more than one
country.
(2) An employer seeking labor certification on behalf of an alien of
exceptional ability in the performing arts must file documentary
evidence that the alien's work experience during the past twelve months
did require, and the alien's intended work in the United States will
require, exceptional ability; and must submit documentation to show this
exceptional ability, such as:
(i) Documentation attesting to the current widespread acclaim and
international recognition accorded to the alien, and receipt of
internationally recognized prizes or awards for excellence;
(ii) Published material by or about the alien, such as critical
reviews or articles in major newspapers, periodicals, and/or trade
journals (the title, date, and author of such material shall be
indicated);
(iii) Documentary evidence of earnings commensurate with the claimed
level of ability;
(iv) Playbills and star billings;
(v) Documents attesting to the outstanding reputation of theaters,
concert halls, night clubs, and other establishments in which the alien
has appeared or is scheduled to appear; and/or
(vi) Documents attesting to the outstanding reputation of theaters
or repertory companies, ballet troupes, orchestras, or other
organizations in which or with which the alien has performed during the
past year in a leading or starring capacity.
(e) Determination. An Immigration Officer determines whether the
employer and alien have met the applicable requirements of Sec. 656.10
and of Schedule A (Sec. 656.5); reviews the application; and determines
whether or not the alien is qualified for and intends to pursue the
Schedule A occupation. The Schedule A determination of DHS is conclusive
and final. The employer, therefore, may not appeal from any such
determination under the review procedures at Sec. 656.26.
(f) Refiling after denial. If an application for a Schedule A
occupation is denied, the employer, except where the occupation is as a
physical therapist or a professional nurse, may at any time file for a
labor certification on the alien beneficiary's behalf under Sec.
656.17. Labor certifications for professional nurses and for physical
therapists shall not be considered under Sec. 656.17.
[69 FR 77386, Dec. 27, 2004, as amended at 73 FR 78068, Dec. 19, 2008]
Sec. 656.16 Labor certification applications for sheepherders.
(a) Filing requirements and required documentation. (1) An employer
may apply for a labor certification to employ an alien (who has been
employed legally as a nonimmigrant sheepherder in the United States for
at least 33 of
[[Page 546]]
the preceding 36 months) as a sheepherder by filing an Application for
Permanent Employment Certification form directly with DHS, not with an
office of DOL.
(2) A signed letter or letters from each U.S. employer who has
employed the alien as a sheepherder during the immediately preceding 36
months, attesting the alien has been employed in the United States
lawfully and continuously as a sheepherder for at least 33 of the
immediately preceding 36 months, must be filed with the application.
(b) Determination. An Immigration Officer reviews the application
and the letters attesting to the alien's previous employment as a
sheepherder in the United States, and determines whether or not the
alien and the employer(s) have met the requirements of this section.
(1) The determination of the Immigration Officer under this
paragraph (b) is conclusive and final. The employer(s) and the alien,
therefore, may not make use of the review procedures set forth at
Sec. Sec. 656.26 and 656.27 to appeal such a determination.
(2) If the alien and the employer(s) have met the requirements of
this section, the Immigration Officer must indicate on the Application
for Permanent Employment Certification form the occupation, the
immigration office that made the determination, and the date of the
determination (see Sec. 656.30 for the significance of this date). The
Immigration Officer must then promptly forward a copy of the Application
for Permanent Employment Certification form, without attachments, to the
Office of Foreign Labor Certification (OFLC) Administrator.
(c) Alternative filing. If an application for a sheepherder does not
meet the requirements of this section, the application may be filed
under Sec. 656.17.
[69 FR 77386, Dec. 27, 2004, as amended at 71 FR 35523, June 21, 2006]
Sec. 656.17 Basic labor certification process.
(a) Filing applications. (1) Except as otherwise provided by
Sec. Sec. 656.15, 656.16, and 656.18, an employer who desires to apply
for a labor certification on behalf of an alien must file a completed
Department of Labor Application for Permanent Employment Certification
form (ETA Form 9089). The application must be filed with an ETA
application processing center. Incomplete applications will be denied.
Applications filed and certified electronically must, upon receipt of
the labor certification, be signed immediately by the employer in order
to be valid. Applications submitted by mail must contain the original
signature of the employer, alien, attorney, and/or agent when they are
received by the application processing center. DHS will not process
petitions unless they are supported by an original certified ETA Form
9089 that has been signed by the employer, alien, attorney and/or agent.
(2) The Department of Labor may issue or require the use of certain
identifying information, including user identifiers, passwords, or
personal identification numbers (PINS). The purpose of these personal
identifiers is to allow the Department of Labor to associate a given
electronic submission with a single, specific individual. Personal
identifiers can not be issued to a company or business. Rather, a
personal identifier can only be issued to specific individual. Any
personal identifiers must be used solely by the individual to whom they
are assigned and can not be used or transferred to any other individual.
An individual assigned a personal identifier must take all reasonable
steps to ensure that his or her personal identifier can not be
compromised. If an individual assigned a personal identifier suspects,
or becomes aware, that his or her personal identifier has been
compromised or is being used by someone else, then the individual must
notify the Department of Labor immediately of the incident and cease the
electronic transmission of any further submissions under that personal
identifier until such time as a new personal identifier is provided. Any
electronic transmissions submitted with a personal identifier will be
presumed to be a submission by the individual assigned that personal
identifier. The Department of Labor's system will notify those making
submissions of these requirements at the time of each submission.
[[Page 547]]
(3) Documentation supporting the application for labor certification
should not be filed with the application, however in the event the
Certifying Officer notifies the employer that its application is to be
audited, the employer must furnish required supporting documentation
prior to a final determination.
(b) Processing. (1) Applications are screened and are certified, are
denied, or are selected for audit.
(2) Employers will be notified if their applications have been
selected for audit by the issuance of an audit letter under Sec.
656.20.
(3) Applications may be selected for audit in accordance with
selection criteria or may be randomly selected.
(c) Filing date. Non-electronically filed applications accepted for
processing shall be date stamped. Electronically filed applications will
be considered filed when submitted.
(d) Refiling procedures. (1) Employers that filed applications under
the regulations in effect prior to March 28, 2005, may, if a job order
has not been placed pursuant to those regulations, refile such
applications under this part without loss of the original filing date
by:
(i) Submitting an application for an identical job opportunity after
complying with all of the filing and recruiting requirements of this
part 656; and
(ii) Withdrawing the original application in accordance with ETA
procedures. Filing an application under this part stating the employer's
desire to use the original filing date will be deemed to be a withdrawal
of the original application. The original application will be deemed
withdrawn regardless of whether the employer's request to use the
original filing date is approved.
(2) Refilings under this paragraph must be made within 210 days of
the withdrawal of the prior application.
(3) A copy of the original application, including amendments, must
be sent to the appropriate ETA application processing center when
requested by the CO under Sec. 656.20.
(4) For purposes of paragraph (d)(1)(i) of this section, a job
opportunity shall be considered identical if the employer, alien, job
title, job location, job requirements, and job description are the same
as those stated in the original application filed under the regulations
in effect prior to March 28, 2005. For purposes of determining identical
job opportunity, the original application includes all accepted
amendments up to the time the application was withdrawn, including
amendments in response to an assessment notice from a SWA pursuant to
Sec. 656.21(h) of the regulations in effect prior to March 28, 2005.
(e) Required pre-filing recruitment. Except for labor certification
applications involving college or university teachers selected pursuant
to a competitive recruitment and selection process (Sec. 656.18),
Schedule A occupations (Sec. Sec. 656.5 and 656.15), and sheepherders
(Sec. 656.16), an employer must attest to having conducted the
following recruitment prior to filing the application:
(1) Professional occupations. If the application is for a
professional occupation, the employer must conduct the recruitment steps
within 6 months of filing the application for alien employment
certification. The employer must maintain documentation of the
recruitment and be prepared to submit this documentation in the event of
an audit or in response to a request from the Certifying Officer prior
to rendering a final determination.
(i) Mandatory steps. Two of the steps, a job order and two print
advertisements, are mandatory for all applications involving
professional occupations, except applications for college or university
teachers selected in a competitive selection and recruitment process as
provided in Sec. 656.18. The mandatory recruitment steps must be
conducted at least 30 days, but no more than 180 days, before the filing
of the application.
(A) Job order. Placement of a job order with the SWA serving the
area of intended employment for a period of 30 days. The start and end
dates of the job order entered on the application shall serve as
documentation of this step.
(B) Advertisements in newspaper or professional journals. (1)
Placing an advertisement on two different Sundays in the newspaper of
general circulation in the area of intended employment most appropriate
to the occupation and the
[[Page 548]]
workers likely to apply for the job opportunity and most likely to bring
responses from able, willing, qualified, and available U.S. workers.
(2) If the job opportunity is located in a rural area of intended
employment that does not have a newspaper with a Sunday edition, the
employer may use the edition with the widest circulation in the area of
intended employment.
(3) The advertisements must satisfy the requirements of paragraph
(f) of this section. Documentation of this step can be satisfied by
furnishing copies of the newspaper pages in which the advertisements
appeared or proof of publication furnished by the newspaper.
(4) If the job involved in the application requires experience and
an advanced degree, and a professional journal normally would be used to
advertise the job opportunity, the employer may, in lieu of one of the
Sunday advertisements, place an advertisement in the professional
journal most likely to bring responses from able, willing, qualified,
and available U.S. workers. Documentation of this step can be satisfied
by providing a copy of the page in which the advertisement appeared.
(ii) Additional recruitment steps. The employer must select three
additional recruitment steps from the alternatives listed in paragraphs
(e)(1)(ii)(A)-(J) of this section. Only one of the additional steps may
consist solely of activity that took place within 30 days of the filing
of the application. None of the steps may have taken place more than 180
days prior to filing the application.
(A) Job fairs. Recruitment at job fairs for the occupation involved
in the application, which can be documented by brochures advertising the
fair and newspaper advertisements in which the employer is named as a
participant in the job fair.
(B) Employer's Web site. The use of the employer's Web site as a
recruitment medium can be documented by providing dated copies of pages
from the site that advertise the occupation involved in the application.
(C) Job search Web site other than the employer's. The use of a job
search Web site other than the employer's can be documented by providing
dated copies of pages from one or more website(s) that advertise the
occupation involved in the application. Copies of web pages generated in
conjunction with the newspaper advertisements required by paragraph
(e)(1)(i)(B) of this section can serve as documentation of the use of a
Web site other than the employer's.
(D) On-campus recruiting. The employer's on-campus recruiting can be
documented by providing copies of the notification issued or posted by
the college's or university's placement office naming the employer and
the date it conducted interviews for employment in the occupation.
(E) Trade or professional organizations. The use of professional or
trade organizations as a recruitment source can be documented by
providing copies of pages of newsletters or trade journals containing
advertisements for the occupation involved in the application for alien
employment certification.
(F) Private employment firms. The use of private employment firms or
placement agencies can be documented by providing documentation
sufficient to demonstrate that recruitment has been conducted by a
private firm for the occupation for which certification is sought. For
example, documentation might consist of copies of contracts between the
employer and the private employment firm and copies of advertisements
placed by the private employment firm for the occupation involved in the
application.
(G) Employee referral program with incentives. The use of an
employee referral program with incentives can be documented by providing
dated copies of employer notices or memoranda advertising the program
and specifying the incentives offered.
(H) Campus placement offices. The use of a campus placement office
can be documented by providing a copy of the employer's notice of the
job opportunity provided to the campus placement office.
(I) Local and ethnic newspapers. The use of local and ethnic
newspapers can be documented by providing a copy of the page in the
newspaper that contains the employer's advertisement.
[[Page 549]]
(J) Radio and television advertisements. The use of radio and
television advertisements can be documented by providing a copy of the
employer's text of the employer's advertisement along with a written
confirmation from the radio or television station stating when the
advertisement was aired.
(2) Nonprofessional occupations. If the application is for a
nonprofessional occupation, the employer must at a minimum, place a job
order and two newspaper advertisements within 6 months of filing the
application. The steps must be conducted at least 30 days but no more
that 180 days before the filing of the application.
(i) Job order. Placing a job order with the SWA serving the area of
intended employment for a period of 30 days. The start and end dates of
the job order entered on the application serve as documentation of this
step.
(ii) Newspaper advertisements. (A) Placing an advertisement on two
different Sundays in the newspaper of general circulation in the area of
intended employment most appropriate to the occupation and the workers
likely to apply for the job opportunity.
(B) If the job opportunity is located in a rural area of intended
employment that does not have a newspaper that publishes a Sunday
edition, the employer may use the newspaper edition with the widest
circulation in the area of intended employment.
(C) Placement of the newspaper advertisements can be documented in
the same way as provided in paragraph (e)(1)(i)(B)(3) of this section
for professional occupations.
(D) The advertisements must satisfy the requirements of paragraph
(f) of this section.
(f) Advertising requirements. Advertisements placed in newspapers of
general circulation or in professional journals before filing the
Application for Permanent Employment Certification must:
(1) Name the employer;
(2) Direct applicants to report or send resumes, as appropriate for
the occupation, to the employer;
(3) Provide a description of the vacancy specific enough to apprise
the U.S. workers of the job opportunity for which certification is
sought;
(4) Indicate the geographic area of employment with enough
specificity to apprise applicants of any travel requirements and where
applicants will likely have to reside to perform the job opportunity;
(5) Not contain a wage rate lower than the prevailing wage rate;
(6) Not contain any job requirements or duties which exceed the job
requirements or duties listed on the ETA Form 9089; and
(7) Not contain wages or terms and conditions of employment that are
less favorable than those offered to the alien.
(g) Recruitment report. (1) The employer must prepare a recruitment
report signed by the employer or the employer's representative noted in
Sec. 656.10(b)(2)(ii) describing the recruitment steps undertaken and
the results achieved, the number of hires, and, if applicable, the
number of U.S. workers rejected, categorized by the lawful job related
reasons for such rejections. The Certifying Officer, after reviewing the
employer's recruitment report, may request the U.S. workers' resumes or
applications, sorted by the reasons the workers were rejected.
(2) A U.S. worker is able and qualified for the job opportunity if
the worker can acquire the skills necessary to perform the duties
involved in the occupation during a reasonable period of on-the-job
training. Rejecting U.S. workers for lacking skills necessary to perform
the duties involved in the occupation, where the U.S. workers are
capable of acquiring the skills during a reasonable period of on-the-job
training is not a lawful job-related reason for rejection of the U.S.
workers.
(h) Job duties and requirements. (1) The job opportunity's
requirements, unless adequately documented as arising from business
necessity, must be those normally required for the occupation and must
not exceed the Specific Vocational Preparation level assigned to the
occupation as shown in the O*NET Job Zones. To establish a business
necessity, an employer must demonstrate the job duties and requirements
bear a reasonable relationship to the occupation in the context of the
employer's business and are essential to perform the job in a reasonable
manner.
[[Page 550]]
(2) A foreign language requirement can not be included, unless it is
justified by business necessity. Demonstrating business necessity for a
foreign language requirement may be based upon the following:
(i) The nature of the occupation, e.g., translator; or
(ii) The need to communicate with a large majority of the employer's
customers, contractors, or employees who can not communicate effectively
in English, as documented by:
(A) The employer furnishing the number and proportion of its
clients, contractors, or employees who can not communicate in English,
and/or a detailed plan to market products or services in a foreign
country; and
(B) A detailed explanation of why the duties of the position for
which certification is sought requires frequent contact and
communication with customers, employees or contractors who can not
communicate in English and why it is reasonable to believe the allegedly
foreign-language-speaking customers, employees, and contractors can not
communicate in English.
(3) If the job opportunity involves a combination of occupations,
the employer must document that it has normally employed persons for
that combination of occupations, and/or workers customarily perform the
combination of occupations in the area of intended employment, and/or
the combination job opportunity is based on a business necessity.
Combination occupations can be documented by position descriptions and
relevant payroll records, and/or letters from other employers stating
their workers normally perform the combination of occupations in the
area of intended employment, and/or documentation that the combination
occupation arises from a business necessity.
(4)(i) Alternative experience requirements must be substantially
equivalent to the primary requirements of the job opportunity for which
certification is sought; and
(ii) If the alien beneficiary already is employed by the employer,
and the alien does not meet the primary job requirements and only
potentially qualifies for the job by virtue of the employer's
alternative requirements, certification will be denied unless the
application states that any suitable combination of education, training,
or experience is acceptable.
(i) Actual minimum requirements. DOL will evaluate the employer's
actual minimum requirements in accordance with this paragraph (i).
(1) The job requirements, as described, must represent the
employer's actual minimum requirements for the job opportunity.
(2) The employer must not have hired workers with less training or
experience for jobs substantially comparable to that involved in the job
opportunity.
(3) If the alien beneficiary already is employed by the employer, in
considering whether the job requirements represent the employer's actual
minimums, DOL will review the training and experience possessed by the
alien beneficiary at the time of hiring by the employer, including as a
contract employee. The employer can not require domestic worker
applicants to possess training and/or experience beyond what the alien
possessed at the time of hire unless:
(i) The alien gained the experience while working for the employer,
including as a contract employee, in a position not substantially
comparable to the position for which certification is being sought, or
(ii) The employer can demonstrate that it is no longer feasible to
train a worker to qualify for the position.
(4) In evaluating whether the alien beneficiary satisfies the
employer's actual minimum requirements, DOL will not consider any
education or training obtained by the alien beneficiary at the
employer's expense unless the employer offers similar training to
domestic worker applicants.
(5) For purposes of this paragraph (i):
(i) The term ``employer'' means an entity with the same Federal
Employer Identification Number (FEIN), provided it meets the definition
of an employer at Sec. 656.3.
(ii) A ``substantially comparable'' job or position means a job or
position requiring performance of the same job duties more than 50
percent of the time. This requirement can be documented by furnishing
position descriptions, the percentage of time spent on
[[Page 551]]
the various duties, organization charts, and payroll records.
(j) Conditions of employment. (1) Working conditions must be normal
to the occupation in the area and industry.
(2) Live-in requirements are acceptable for household domestic
service workers only if the employer can demonstrate the requirement is
essential to perform, in a reasonable manner, the job duties as
described by the employer and there are not cost-effective alternatives
to a live-in household requirement. Mere employer assertions do not
constitute acceptable documentation. For example, a live-in requirement
could be supported by documenting two working parents and young children
in the household, and/or the existence of erratic work schedules
requiring frequent travel and a need to entertain business associates
and clients on short notice. Depending upon the situation, acceptable
documentation could consist of travel vouchers, written estimates of
costs of alternatives such as babysitters, or a detailed listing of the
frequency and length of absences of the employer from the home.
(k) Layoffs. (1) If there has been a layoff by the employer
applicant in the area of intended employment within 6 months of filing
an application involving the occupation for which certification is
sought or in a related occupation, the employer must document it has
notified and considered all potentially qualified laid off (employer
applicant) U.S. workers of the job opportunity involved in the
application and the results of the notification and consideration. A
layoff shall be considered any involuntary separation of one or more
employees without cause or prejudice.
(2) For the purposes of paragraph (k)(1) of this section, a related
occupation is any occupation that requires workers to perform a majority
of the essential duties involved in the occupation for which
certification is sought.
(l) Alien influence and control over job opportunity. If the
employer is a closely held corporation or partnership in which the alien
has an ownership interest, or if there is a familial relationship
between the stockholders, corporate officers, incorporators, or
partners, and the alien, or if the alien is one of a small number of
employees, the employer in the event of an audit must be able to
demonstrate the existence of a bona fide job opportunity, i.e., the job
is available to all U.S. workers, and must provide to the Certifying
Officer, the following supporting documentation:
(1) A copy of the articles of incorporation, partnership agreement,
business license or similar documents that establish the business
entity;
(2) A list of all corporate/company officers and shareholders/
partners of the corporation/firm/business, their titles and positions in
the business' structure, and a description of the relationships to each
other and to the alien beneficiary;
(3) The financial history of the corporation/company/partnership,
including the total investment in the business entity and the amount of
investment of each officer, incorporator/partner and the alien
beneficiary; and
(4) The name of the business' official with primary responsibility
for interviewing and hiring applicants for positions within the
organization and the name(s) of the business' official(s) having control
or influence over hiring decisions involving the position for which
labor certification is sought.
(5) If the alien is one of 10 or fewer employees, the employer must
document any family relationship between the employees and the alien.
Sec. 656.18 Optional special recruitment and documentation procedures
for college and university teachers.
(a) Filing requirements. Applications for certification of
employment of college and university teachers must be filed by
submitting a completed Application for Permanent Employment
Certification form to the appropriate ETA application processing center.
(b) Recruitment. The employer may recruit for college and university
teachers under Sec. 656.17 or must be able to document the alien was
selected for the job opportunity in a competitive recruitment and
selection process through which the alien was found to be more qualified
than any of the United States workers who applied for the job. For
purposes of this paragraph
[[Page 552]]
(b), documentation of the ``competitive recruitment and selection
process'' must include:
(1) A statement, signed by an official who has actual hiring
authority from the employer outlining in detail the complete recruitment
procedures undertaken; and which must set forth:
(i) The total number of applicants for the job opportunity;
(ii) The specific lawful job-related reasons why the alien is more
qualified than each U.S. worker who applied for the job; and
(2) A final report of the faculty, student, and/or administrative
body making the recommendation or selection of the alien, at the
completion of the competitive recruitment and selection process;
(3) A copy of at least one advertisement for the job opportunity
placed in a national professional journal, giving the name and the
date(s) of publication; and which states the job title, duties, and
requirements;
(4) Evidence of all other recruitment sources utilized; and
(5) A written statement attesting to the degree of the alien's
educational or professional qualifications and academic achievements.
(c) Time limit for filing. Applications for permanent alien labor
certification for job opportunities as college and university teachers
must be filed within 18 months after a selection is made pursuant to a
competitive recruitment and selection process.
(d) Alternative procedure. An employer that can not or does not
choose to satisfy the special recruitment procedures for a college or
university teacher under this section may avail itself of the basic
process at Sec. 656.17. An employer that files for certification of
employment of college and university teachers under Sec. 656.17 or this
section must be able to document, if requested by the Certifying
Officer, in accordance with Sec. 656.24(a)(2)(ii), the alien was found
to be more qualified than each U.S. worker who applied for the job
opportunity.
Sec. 656.19 Live-in household domestic service workers.
(a) Processing. Applications on behalf of live-in household domestic
service occupations are processed pursuant to the requirements of the
basic process at Sec. 656.17.
(b) Required documentation. Employers filing applications on behalf
of live-in household domestic service workers must provide, in event of
an audit, the following documentation:
(1) A statement describing the household living accommodations,
including the following:
(i) Whether the residence is a house or apartment;
(ii) The number of rooms in the residence;
(iii) The number of adults and children, and ages of the children,
residing in the household; and
(iv) That free board and a private room not shared with any other
person will be provided to the alien.
(2) Two copies of the employment contract, each signed and dated
prior to the filing of the application by both the employer and the
alien (not by their attorneys or agents). The contract must clearly
state:
(i) The wages to be paid on an hourly and weekly basis;
(ii) Total hours of employment per week, and exact hours of daily
employment;
(iii) That the alien is free to leave the employer's premises during
all non-work hours except the alien may work overtime if paid for the
overtime at no less than the legally required hourly rate;
(iv) That the alien will reside on the employer's premises;
(v) Complete details of the duties to be performed by the alien;
(vi) The total amount of any money to be advanced by the employer
with details of specific items, and the terms of repayment by the alien
of any such advance by the employer;
(vii) That in no event may the alien be required to give more than
two weeks' notice of intent to leave the employment contracted for and
the employer must give the alien at least two weeks' notice before
terminating employment;
(viii) That a duplicate contract has been furnished to the alien;
(ix) That a private room and board will be provided at no cost to
the worker; and
[[Page 553]]
(x) Any other agreement or conditions not specified on the
Application for Permanent Employment Certification form.
(3) Documentation of the alien's paid experience in the form of
statements from past or present employers setting forth the dates (month
and year) employment started and ended, hours of work per day, number of
days worked per week, place where the alien worked, detailed statement
of duties performed on the job, equipment and appliances used, and the
amount of wages paid per week or month. The total paid experience must
be equal to one full year's employment on a full-time basis. For
example, two year's experience working half-days is the equivalent of
one year's full time experience. Time spent in a household domestic
service training course can not be included in the required one year of
paid experience. Each statement must contain the name and address of the
person who signed it and show the date on which the statement was
signed. A statement not in English shall be accompanied by a written
translation into English certified by the translator as to the accuracy
of the translation, and as to the translator's competency to translate.
Sec. 656.20 Audit procedures.
(a) Review of the labor certification application may lead to an
audit of the application. Additionally, certain applications may be
selected randomly for audit and quality control purposes. If an
application is selected for audit, the Certifying Officer shall issue an
audit letter. The audit letter will:
(1) State the documentation that must be submitted by the employer;
(2) Specify a date, 30 days from the date of the audit letter, by
which the required documentation must be submitted; and
(3) Advise that if the required documentation has not been sent by
the date specified the application will be denied.
(i) Failure to provide documentation in a timely manner constitutes
a refusal to exhaust available administrative remedies; and
(ii) The administrative-judicial review procedure provided in Sec.
656.26 is not available.
(b) A substantial failure by the employer to provide required
documentation will result in that application being denied under Sec.
656.24 and may result in a determination by the Certifying Officer
pursuant to Sec. 656.24 to require the employer to conduct supervised
recruitment under Sec. 656.21 in future filings of labor certification
applications for up to 2 years.
(c) The Certifying Officer may in his or her discretion provide one
extension, of up to 30 days, to the 30 days specified in paragraph
(a)(2) of this section.
(d) Before making a final determination in accordance with the
standards in Sec. 656.24, whether in course of an audit or otherwise,
the Certifying Officer may:
(1) Request supplemental information and/or documentation; or
(2) Require the employer to conduct supervised recruitment under
Sec. 656.21.
[69 FR 77386, Dec. 27, 2004, as amended at 71 FR 35523, June 21, 2006]
Sec. 656.21 Supervised recruitment.
(a) Supervised recruitment. Where the Certifying Officer determines
it appropriate, post-filing supervised recruitment may be required of
the employer for the pending application or future applications pursuant
to Sec. 656.20(b).
(b) Requirements. Supervised recruitment shall consist of
advertising for the job opportunity by placing an advertisement in a
newspaper of general circulation or in a professional, trade, or ethnic
publication, and any other measures required by the CO. If placed in a
newspaper of general circulation, the advertisement must be published
for 3 consecutive days, one of which must be a Sunday; or, if placed in
a professional, trade, or ethnic publication, the advertisement must be
published in the next available published edition. The advertisement
must be approved by the Certifying Officer before publication, and the
CO will direct where the advertisement is to be placed.
(1) The employer must supply a draft advertisement to the CO for
review and
[[Page 554]]
approval within 30 days of being notified that supervised recruitment is
required.
(2) The advertisement must:
(i) Direct applicants to send resumes or applications for the job
opportunity to the CO for referral to the employer;
(ii) Include an identification number and an address designated by
the Certifying Officer;
(iii) Describe the job opportunity;
(iv) Not contain a wage rate lower than the prevailing wage rate;
(v) Summarize the employer's minimum job requirements, which can not
exceed any of the requirements entered on the application form by the
employer;
(vi) Offer training if the job opportunity is the type for which
employers normally provide training; and
(vii) Offer wages, terms and conditions of employment no less
favorable than those offered to the alien.
(c) Timing of advertisement. (1) The advertisement shall be placed
in accordance with the guidance provided by the CO.
(2) The employer will notify the CO when the advertisement will be
placed.
(d) Additional or substitute recruitment. The Certifying Officer may
designate other appropriate sources of workers from which the employer
must recruit for U.S. workers in addition to the advertising described
in paragraph (b) of this section.
(e) Recruitment report. The employer must provide to the Certifying
Officer a signed, detailed written report of the employer's supervised
recruitment, signed by the employer or the employer's representative
described in Sec. 656.10(b)(2)(ii), within 30 days of the Certifying
Officer's request for such a report. The recruitment report must:
(1) Identify each recruitment source by name and document that each
recruitment source named was contacted. This can include, for example,
copies of letters to recruitment sources such as unions, trade
associations, colleges and universities and any responses received to
the employer's inquiries. Advertisements placed in newspapers,
professional, trade, or ethnic publications can be documented by
furnishing copies of the tear sheets of the pages of the publication in
which the advertisements appeared, proof of publication furnished by the
publication, or dated copies of the web pages if the advertisement
appeared on the web as well as in the publication in which the
advertisement appeared.
(2) State the number of U.S. workers who responded to the employer's
recruitment.
(3) State the names, addresses, and provide resumes (other than
those sent to the employer by the CO) of the U.S. workers who applied
for the job opportunity, the number of workers interviewed, and the job
title of the person who interviewed the workers.
(4) Explain, with specificity, the lawful job-related reason(s) for
not hiring each U.S. worker who applied. Rejection of one or more U.S.
workers for lacking skills necessary to perform the duties involved in
the occupation, where the U.S. workers are capable of acquiring the
skills during a reasonable period of on-the-job training, is not a
lawful job-related reason for rejecting the U.S. workers. For the
purpose of this paragraph (e)(4), a U.S. worker is able and qualified
for the job opportunity if the worker can acquire the skills necessary
to perform the duties involved in the occupation during a reasonable
period of on-the-job training.
(f) The employer shall supply the CO with the required documentation
or information within 30 days of the date of the request. If the
employer does not do so, the CO shall deny the application.
(g) The Certifying Officer in his or her discretion, for good cause
shown, may provide one extension to any request for documentation or
information.
Sec. 656.24 Labor certification determinations.
(a)(1) The Office of Foreign Labor Certification Administrator (OFLC
Administrator) is the National Certifying Officer. The OFLC
Administrator and the certifying officers in the ETA application
processing centers have the authority to certify or deny labor
certification applications.
(2) If the labor certification presents a special or unique problem,
the Director of an ETA application processing
[[Page 555]]
center may refer the matter to the Office of Foreign Labor Certification
Administrator (OFLC Administrator). If the OFLC Administrator has
directed that certain types of applications or specific applications be
handled in the ETA national office, the Directors of the ETA application
processing centers shall refer such applications to the OFLC
Administrator.
(b) The Certifying Officer makes a determination either to grant or
deny the labor certification on the basis of whether or not:
(1) The employer has met the requirements of this part.
(2) There is in the United States a worker who is able, willing,
qualified, and available for and at the place of the job opportunity.
(i) The Certifying Officer must consider a U.S. worker able and
qualified for the job opportunity if the worker, by education, training,
experience, or a combination thereof, is able to perform in the normally
accepted manner the duties involved in the occupation as customarily
performed by other U.S. workers similarly employed. For the purposes of
this paragraph (b)(2)(i), a U.S. worker is able and qualified for the
job opportunity if the worker can acquire the skills necessary to
perform the duties involved in the occupation during a reasonable period
of on-the-job training.
(ii) If the job involves a job opportunity as a college or
university teacher, the U.S. worker must be at least as qualified as the
alien.
(3) The employment of the alien will not have an adverse effect upon
the wages and working conditions of U.S. workers similarly employed. In
making this determination, the Certifying Officer considers such things
as: labor market information, the special circumstances of the industry,
organization, and/or occupation, the prevailing wage in the area of
intended employment, and prevailing working conditions, such as hours,
in the occupation.
(c) The Certifying Officer shall notify the employer in writing
(either electronically or by mail) of the labor certification
determination.
(d) If a labor certification is granted, except for a labor
certification for an occupation on Schedule A (Sec. 656.5) or for
employment as a sheepherder under Sec. 656.16, the Certifying Officer
must send the certified application and complete Final Determination
form to the employer, or, if appropriate, to the employer's agent or
attorney, indicating the employer may file all the documents with the
appropriate DHS office.
(e) If the labor certification is denied, the Final Determination
form will:
(1) State the reasons for the determination;
(2) Quote the request for review procedures at Sec. 656.26 (a) and
(b);
(3) Advise that failure to request review within 30 days of the date
of the determination, as specified in Sec. 656.26(a), constitutes a
failure to exhaust administrative remedies;
(4) Advise that, if a request for review is not made within 30 days
of the date of the determination, the denial shall become the final
determination of the Secretary;
(5) Advise that if an application for a labor certification is
denied, and a request for review is not made in accordance with the
procedures at Sec. 656.26(a) and (b), a new application may be filed at
any time; and
(6) Advise that a new application in the same occupation for the
same alien can not be filed while a request for review is pending with
the Board of Alien Labor Certification Appeals.
(f) If the Certifying Officer determines the employer substantially
failed to produce required documentation, or the documentation was
inadequate, or determines a material misrepresentation was made with
respect to the application, or if the Certifying Officer determines it
is appropriate for other reasons, the employer may be required to
conduct supervised recruitment pursuant to Sec. 656.21 in future
filings of labor certification applications for up to two years from the
date of the Final Determination.
(g)(1) The employer may request reconsideration within 30 days from
the date of issuance of the denial.
(2) For applications submitted after July 16, 2007, a request for
reconsideration may include only:
(i) Documentation that the Department actually received from the
employer in response to a request from
[[Page 556]]
the Certifying Officer to the employer; or
(ii) Documentation that the employer did not have an opportunity to
present previously to the Certifying Officer, but that existed at the
time the Application for Permanent Labor Certification was filed, and
was maintained by the employer to support the application for permanent
labor certification in compliance with the requirements of Sec.
656.10(f).
(3) Paragraphs (g)(1) and (2) of this section notwithstanding, the
Certifying Officer will not grant any request for reconsideration where
the deficiency that caused denial resulted from the applicant's
disregard of a system prompt or other direct instruction.
(4) The Certifying Officer may, in his or her discretion, reconsider
the determination or treat it as a request for review under Sec.
656.26(a).
[69 FR 77386, Dec. 27, 2004, as amended at 71 FR 35523, June 21, 2006;
72 FR 27945, May 17, 2007]
Sec. 656.26 Board of Alien Labor Certification Appeals review of
denials of labor certification.
(a) Request for review. (1) If a labor certification is denied, if a
labor certification is revoked pursuant to Sec. 656.32, or if a
debarment is issued under Sec. 656.31(f), a request for review of the
denial, revocation, or debarment may be made to the Board of Alien Labor
Certification Appeals by the employer or debarred person or entity by
making a request for such an administrative review in accordance with
the procedures provided in paragraph (a) of this section. In the case of
a finding of debarment, receipt by the Department of a request for
review, if made in accordance with this section, shall stay the
debarment until such time as the review has been completed and a
decision rendered thereon.
(2) A request for review of a denial or revocation:
(i) Must be sent within 30 days of the date of the determination to
the Certifying Officer who denied the application or revoked the
certification;
(ii) Must clearly identify the particular labor certification
determination for which review is sought;
(iii) Must set forth the particular grounds for the request; and
(iv) Must include a copy of the Final Determination.
(3) A request for review of debarment:
(i) Must be sent to the Administrator, Office of Foreign Labor
Certification, within 30 days of the date of the debarment
determination;
(ii) Must clearly identify the particular debarment determination
for which review is sought;
(iii) Must set forth the particular grounds for the request; and
(iv) Must include a copy of the Notice of Debarment.
(4)(i) With respect to a denial of the request for review,
statements, briefs, and other submissions of the parties and amicus
curiae must contain only legal argument and only such evidence that was
within the record upon which the denial of labor certification was
based.
(ii) With respect to a revocation or a debarment determination, the
BALCA proceeding may be de novo.
(b) Upon the receipt of a request for review, the Certifying Officer
immediately must assemble an indexed Appeal File:
(1) The Appeal File must be in chronological order, must have the
index on top followed by the most recent document, and must have
consecutively numbered pages. The Appeal File must contain the request
for review, the complete application file, and copies of all the written
material, such as pertinent parts and pages of surveys and/or reports
upon which the denial was based.
(2) The Certifying Officer must send the Appeal File to the Board of
Alien Labor Certification Appeals, Office of Administrative Law Judges,
800 K Street, NW., Suite 400-N, Washington, DC 20001-8002.
(3) The Certifying Officer must send a copy of the Appeal File to
the employer. The employer may furnish or suggest directly to the Board
of Alien Labor Certification Appeals the addition of any documentation
that is not in the Appeal File, but that was submitted to DOL before the
issuance of the Final Determination. The employer must submit such
documentation in writing, and must send a copy to the
[[Page 557]]
Associate Solicitor for Employment and Training Legal Services, Office
of the Solicitor, U.S. Department of Labor, Washington, DC 20210.
(c) Debarment Appeal File. Upon the receipt of a request for review
of debarment, the Administrator, Office of Foreign Labor Certification,
immediately must assemble an indexed Appeal File:
(1) The Appeal File must be in chronological order, must have the
index on top followed by the most recent document, and must have
consecutively numbered pages. The Appeal File must contain the request
for review, the complete application file(s), and copies of all written
materials, such as pertinent parts and pages of surveys and/or reports
or documents received from any court, DHS, or the Department of State,
upon which the debarment was based.
(2) The Administrator, Office of Foreign Labor Certification, must
send the Appeal File to the Board of Alien Labor Certification Appeals,
Office of Administrative Law Judges, 800 K St., NW., Suite 400-N,
Washington, DC 20001-8002.
(3) The Administrator, Office of Foreign Labor Certification, must
send a copy of the Appeal File to the debarred person or entity. The
debarred person or entity may furnish or suggest directly to the Board
of Alien Labor Certification Appeals the addition of any documentation
that is not in the Appeal File. The debarred person or entity must
submit such documentation in writing, and must send a copy to the
Associate Solicitor for Employment and Training Legal Services, Office
of the Solicitor, U.S. Department of Labor, 200 Constitution Ave., NW.,
Washington, DC 20210.
[69 FR 77386, Dec. 27, 2004, as amended at 72 FR 27945, May 17, 2007]
Sec. 656.27 Consideration by and decisions of the Board of Alien Labor
Certification Appeals.
(a) Panel designations. In considering requests for review before
it, the Board of Alien Labor Certification Appeals may sit in panels of
three members. The Chief Administrative Law Judge may designate any
Board of Alien Labor Certification Appeals member to submit proposed
findings and recommendations to the Board of Alien Labor Certification
Appeals or to any duly designated panel thereof to consider a particular
case.
(b) Briefs and Statements of Position. In considering the requests
for review before it, the Board of Alien Labor Certification Appeals
must afford all parties 30 days to submit or decline to submit any
appropriate Statement of Position or legal brief. The Certifying Officer
is to be represented solely by the Solicitor of Labor or the Solicitor's
designated representative.
(c) Review on the record. The Board of Alien Labor Certification
Appeals must review a denial of labor certification under Sec. 656.24,
a revocation of a certification under Sec. 656.32, or an affirmation of
a prevailing wage determination under Sec. 656.41 on the basis of the
record upon which the decision was made, the request for review, and any
Statements of Position or legal briefs submitted and must:
(1) Affirm the denial of the labor certification, the revocation of
certification, or the affirmation of the PWD; or
(2) Direct the Certifying Officer to grant the certification,
overrule the revocation of certification, or overrule the affirmation of
the PWD; or
(3) Direct that a hearing on the case be held under paragraph (e) of
this section.
(d) Notifications of decisions. The Board of Alien Labor
Certification Appeals must notify the employer, the Certifying Officer,
and the Solicitor of Labor of its decision, and must return the record
to the Certifying Officer unless the case has been set for hearing under
paragraph (e) of this section.
(e) Hearings--(1) Notification of hearing. If the case has been set
for a hearing, the Board of Alien Labor Certification Appeals must
notify the employer, the alien, the Certifying Officer, and the
Solicitor of Labor of the date, time, and place of the hearing, and that
the hearing may be rescheduled upon written request and for good cause
shown.
(2) Hearing procedure. (i) The ``Rules of Practice and Procedure For
Administrative Hearings Before the Office of Administrative Law
Judges,'' at 29
[[Page 558]]
CFR part 18, apply to hearings under this paragraph (e).
(ii) For the purposes of this paragraph (e)(2), references in 29 CFR
part 18 to: ``administrative law judge'' mean the Board of Alien Labor
Certification Appeals member or the Board of Alien Labor Certification
Appeals panel duly designated under Sec. 656.27(a); ``Office of
Administrative Law Judges'' means the Board of Alien Labor Certification
Appeals; and ``Chief Administrative Law Judge'' means the Chief
Administrative Law Judge in that official's function of chairing the
Board of Alien Labor Certification Appeals.
Sec. 656.30 Validity of and invalidation of labor certifications.
(a) Priority date. (1) The filing date for a Schedule A occupation
or sheepherders is the date the application was dated by the Immigration
Officer.
(2) The filing date, established under Sec. 656.17(c), of an
approved labor certification may be used as a priority date by the
Department of Homeland Security and the Department of State, as
appropriate.
(b) Expiration of labor certifications. For certifications resulting
from applications filed under this part and 20 CFR part 656 in effect
prior to March 28, 2005, the following applies:
(1) An approved permanent labor certification granted on or after
July 16, 2007 expires if not filed in support of a Form I-140 petition
with the Department of Homeland Security within 180 calendar days of the
date the Department of Labor granted the certification.
(2) An approved permanent labor certification granted before July
16, 2007 expires if not filed in support of a Form I-140 petition with
the Department of Homeland Security within 180 calendar days of July 16,
2007.
(c) Scope of validity. For certifications resulting from
applications filed under this part or 20 CFR part 656 in effect prior to
March 28, 2005, the following applies:
(1) A permanent labor certification for a Schedule A occupation or
sheepherders is valid only for the occupation set forth on the
Application for Alien Employment Certification (Form ETA 750) or the
Application for Permanent Employment Certification (Form ETA 9089) and
only for the alien named on the original application, unless a
substitution was approved prior to July 16, 2007. The certification is
valid throughout the United States unless the certification contains a
geographic limitation.
(2) A permanent labor certification involving a specific job offer
is valid only for the particular job opportunity, the alien named on the
original application (unless a substitution was approved prior to July
16, 2007), and the area of intended employment stated on the Application
for Alien Employment Certification (Form ETA 750) or the Application for
Permanent Employment Certification (Form ETA 9089).
(d) Invalidation of labor certifications. After issuance, a labor
certification may be revoked by ETA using the procedures described in
Sec. 656.32. Additionally, after issuance, a labor certification is
subject to invalidation by the DHS or by a Consul of the Department of
State upon a determination, made in accordance with those agencies'
procedures or by a court, of fraud or willful misrepresentation of a
material fact involving the labor certification application. If evidence
of such fraud or willful misrepresentation becomes known to the CO or to
the Chief, Division of Foreign Labor Certification, the CO, or the Chief
of the Division of Foreign Labor Certification, as appropriate, shall
notify in writing the DHS or Department of State, as appropriate. A copy
of the notification must be sent to the regional or national office, as
appropriate, of the Department of Labor's Office of Inspector General.
(e) Duplicate labor certifications. (1) The Certifying Officer shall
issue a duplicate labor certification at the written request of a
Consular or Immigration Officer. The Certifying Officer shall issue such
duplicate labor certifications only to the Consular or Immigration
Officer who initiated the request.
(2) The Certifying Officer shall issue a duplicate labor
certification to a Consular or Immigration Officer at the written
request of an alien, employer, or an alien's or employer's attorney/
agent. Such request for a duplicate labor certification must be
addressed
[[Page 559]]
to the Certifying Officer who issued the labor certification; must
include documentary evidence from a Consular or Immigration Officer that
a visa application or visa petition, as appropriate, has been filed; and
must include a Consular Office or DHS tracking number.
(3) A duplicate labor certification shall be issued by the
Certifying Officer with the same filing and expiration dates, as
described in paragraphs (a) and (b) of this section, as the original
approved labor certification.
[69 FR 77386, Dec. 27, 2004, as amended at 72 FR 27946, May 17, 2007]
Sec. 656.31 Labor certification applications involving fraud, willful
misrepresentation, or violations of this part.
The following provisions apply to applications filed under both this
part and 20 CFR part 656 in effect prior to March 28, 2005, and to any
certifications resulting from those applications.
(a) Denial. A Certifying Officer may deny any application for
permanent labor certification if the officer finds the application
contains false statements, is fraudulent, or was otherwise submitted in
violation of the Department's permanent labor certification regulations.
(b) Possible fraud or willful misrepresentation. (1) If the
Department learns an employer, attorney, or agent is involved in
possible fraud or willful misrepresentation in connection with the
permanent labor certification program, the Department will refer the
matter to the Department of Justice, Department of Homeland Security, or
other government entity, as appropriate, for investigation, and send a
copy of the referral to the Department of Labor's Office of Inspector
General (OIG). In these cases, or if the Department learns an employer,
attorney, or agent is under investigation by the Department of Justice,
Department of Homeland Security, or other government entity for possible
fraud or willful misrepresentation in connection with the permanent
labor certification program, the Department may suspend processing of
any permanent labor certification application involving such employer,
attorney, or agent until completion of any investigation and/or judicial
proceedings. Unless the investigatory agency, in writing, requests the
Department to do otherwise, the Department shall provide written
notification to the employer of the suspension in processing.
(2) A suspension pursuant to paragraph (b)(1) of this section may
last initially for up to 180 days. No later than 180 days after the
suspension began, if no criminal indictment or information has been
issued, or judicial proceedings have not been concluded, the National
Certifying Officer may resume processing some or all of the
applications, or may extend the suspension in processing until
completion of any investigation and/or judicial proceedings.
(c) Criminal indictment or information. If the Department learns
that an employer, attorney, or agent is named in a criminal indictment
or information in connection with the permanent labor certification
program, the processing of applications related to that employer,
attorney, or agent may be suspended until the judicial process is
completed. Unless the investigatory or prosecutorial agency, in writing,
requests the Department to do otherwise, the Department shall provide
written notification to the employer of the suspension in processing.
(d) No finding of fraud or willful misrepresentation. If an
employer, attorney, or agent is acquitted of fraud or willful
misrepresentation charges, or if such criminal charges are withdrawn or
otherwise fail to result in a finding of fraud or willful
misrepresentation, the Certifying Officer shall decide each pending
permanent labor certification application related to that employer,
attorney, or agent on the merits of the application.
(e) Finding of fraud or willful misrepresentation. If an employer,
attorney, or agent is found to have committed fraud or willful
misrepresentation involving the permanent labor certification program,
whether by a court, the Department of State or DHS, as referenced in
Sec. 656.30(d), or through other proceedings:
(1) Any suspension of processing of pending applications related to
that
[[Page 560]]
employer, attorney, or agent will terminate.
(2) The Certifying Officer will decide each such application on its
merits, and may deny any such application as provided in Sec. 656.24
and in paragraph (a) of this section.
(3) In the case of a pending application involving an attorney or
agent found to have committed fraud or willful misrepresentation, DOL
will notify the employer associated with that application of the finding
and require the employer to notify DOL in writing, within 30 days of the
notification, whether the employer will withdraw the application,
designate a new attorney or agent, or continue the application without
representation. Failure of the employer to respond within 30 days of the
notification will result in a denial. If the employer elects to continue
representation by the attorney or agent, DOL will suspend processing of
affected applications while debarment proceedings are conducted under
paragraph (f) of this section.
(f) Debarment. (1) No later than six years after the date of filing
of the labor certification application that is the basis for the
finding, or, if such basis requires a pattern or practice as provided in
paragraphs (f)(1)(iii), (iv), and (v) of this section, no later than six
years after the date of filing of the last labor certification
application which constitutes a part of the pattern or practice, the
Administrator, Office of Foreign Labor Certification, may issue to an
employer, attorney, agent, or any combination thereof a Notice of
Debarment from the permanent labor certification program for a
reasonable period of no more than three years, based upon any action
that was prohibited at the time the action occurred, upon determining
the employer, attorney, or agent has participated in or facilitated one
or more of the following:
(i) The sale, barter, or purchase of permanent labor applications or
certifications, or any other action prohibited under Sec. 656.12;
(ii) The willful provision or willful assistance in the provision of
false or inaccurate information in applying for permanent labor
certification;
(iii) A pattern or practice of a failure to comply with the terms of
the Form ETA 9089 or Form ETA 750;
(iv) A pattern or practice of failure to comply in the audit process
pursuant to Sec. 656.20;
(v) A pattern or practice of failure to comply in the supervised
recruitment process pursuant to Sec. 656.21; or
(vi) Conduct resulting in a determination by a court, DHS or the
Department of State of fraud or willful misrepresentation involving a
permanent labor certification application, as referenced in Sec.
656.31(e).
(2) The Notice of Debarment shall be in writing; shall state the
reason for the debarment finding, including a detailed explanation of
how the employer, attorney or agent has participated in or facilitated
one or more of the actions listed in paragraphs (f)(1)(i) through (v) of
this section; shall state the start date and term of the debarment; and
shall identify appeal opportunities under Sec. 656.26. The debarment
shall take effect on the start date identified in the Notice of
Debarment unless a request for review is filed within the time permitted
by Sec. 656.26. DOL will notify DHS and the Department of State
regarding any Notice of Debarment.
(g) False statements. To knowingly and willfully furnish any false
information in the preparation of the Application for Permanent
Employment Certification (Form ETA 9089) or the Application for Alien
Employment Certification (Form ETA 750) and any supporting
documentation, or to aid, abet, or counsel another to do so is a Federal
offense, punishable by fine or imprisonment up to five years, or both
under 18 U.S.C. 2 and 1001. Other penalties apply as well to fraud or
misuse of ETA immigration documents and to perjury with respect to such
documents under 18 U.S.C. 1546 and 1621.
[72 FR 27946, May 17, 2007]
Sec. 656.32 Revocation of approved labor certifications.
(a) Basis for DOL revocation. The Certifying Officer in consultation
with the Chief, Division of Foreign Labor Certification may take steps
to revoke an approved labor certification, if he/she
[[Page 561]]
finds the certification was not justified. A labor certification may
also be invalidated by DHS or the Department of State as set forth in
Sec. 656.30(d).
(b) Department of Labor procedures for revocation. (1) The
Certifying Officer sends to the employer a Notice of Intent to Revoke an
approved labor certification which contains a detailed statement of the
grounds for the revocation and the time period allowed for the
employer's rebuttal. The employer may submit evidence in rebuttal within
30 days of receipt of the notice. The Certifying Officer must consider
all relevant evidence presented in deciding whether to revoke the labor
certification.
(2) If rebuttal evidence is not filed by the employer, the Notice of
Intent to Revoke becomes the final decision of the Secretary.
(3) If the employer files rebuttal evidence and the Certifying
Officer determines the certification should be revoked, the employer may
file an appeal under Sec. 656.26.
(4) The Certifying Officer will inform the employer within 30 days
of receiving any rebuttal evidence whether or not the labor
certification will be revoked.
(5) If the labor certification is revoked, the Certifying Officer
will also send a copy of the notification to the DHS and the Department
of State.
Subpart D_Determination of Prevailing Wage
Sec. 656.40 Determination of prevailing wage for labor certification
purposes.
(a) Application process. The employer must request a PWD from the
NPC, on a form or in a manner prescribed by OFLC. Prior to January 1,
2010, the SWA having jurisdiction over the area of intended employment
shall continue to receive and process prevailing wage determination
requests in accordance with the regulatory provisions and Department
guidance in effect prior to January 1, 2009. On or after January 1,
2010, the NPC shall receive and process prevailing wage determination
requests in accordance with these regulations and with Department
guidance. The NPC will provide the employer with an appropriate
prevailing wage rate. The NPC shall determine the wage in accordance
with sec. 212(t) of the INA. Unless the employer chooses to appeal the
center's PWD under Sec. 656.41(a) of this part, it files the
Application for Permanent Employment Certification either electronically
or by mail with the processing center of jurisdiction and maintains the
PWD in its files. The determination shall be submitted to the CO, if
requested.
(b) Determinations. The National Processing Center will determine
the appropriate prevailing wage as follows:
(1) Except as provided in paragraphs (e) and (f) of this section, if
the job opportunity is covered by a collective bargaining agreement
(CBA) that was negotiated at arms-length between the union and the
employer, the wage rate set forth in the CBA agreement is considered as
not adversely affecting the wages of U.S. workers similarly employed,
that is, it is considered the ``prevailing wage'' for labor
certification purposes.
(2) If the job opportunity is not covered by a CBA, the prevailing
wage for labor certification purposes shall be the arithmetic mean,
except as provided in paragraph (b)(3) of this section, of the wages of
workers similarly employed in the area of intended employment. The wage
component of the DOL Occupational Employment Statistics Survey shall be
used to determine the arithmetic mean, unless the employer provides an
acceptable survey under paragraph (g) of this section.
(3) If the employer provides a survey acceptable under paragraph (g)
of this section that provides a median and does not provide an
arithmetic mean, the prevailing wage applicable to the employer's job
opportunity shall be the median of the wages of workers similarly
employed in the area of intended employment.
(4) The employer may utilize a current wage determination in the
area under the Davis-Bacon Act, 40 U.S.C. 276a et seq., 29 CFR part 1,
or the McNamara-O'Hara Service Contract Act, 41 U.S.C. 351 et seq.
(c) Validity period. The National Processing Center must specify the
validity period of the prevailing wage, which in no event may be less
than 90 days or
[[Page 562]]
more than 1 year from the determination date. To use a prevailing wage
rate provided by the NPC, employers must file their applications or
begin the recruitment period required by Sec. Sec. 656.17(e) or 656.21
of this part within the validity period specified by the NPC.
(d) Similarly employed. For purposes of this section, similarly
employed means having substantially comparable jobs in the occupational
category in the area of intended employment, except that, if a
representative sample of workers in the occupational category can not be
obtained in the area of intended employment, similarly employed means:
(1) Having jobs requiring a substantially similar level of skills
within the area of intended employment; or
(2) If there are no substantially comparable jobs in the area of
intended employment, having substantially comparable jobs with employers
outside of the area of intended employment.
(e) Institutions of higher education and research entities. In
computing the prevailing wage for a job opportunity in an occupational
classification in an area of intended employment for an employee of an
institution of higher education, or an affiliated or related nonprofit
entity, a nonprofit research organization, or a Governmental research
organization, the prevailing wage level takes into account the wage
levels of employees only at such institutions and organizations in the
area of intended employment.
(1) The organizations listed in this paragraph (e) are defined as
follows:
(i) Institution of higher education means an institution of higher
education as defined in section 101(a) of the Higher Education Act of
1965. Section 101(a) of that Act, 20 U.S.C. 1001(a)(2000), provides an
institution of higher education is an educational institution in any
state that:
(A) Admits as regular students only persons having a certificate of
graduation from a school providing secondary education, or the
recognized equivalent of such a certificate;
(B) Is legally authorized within such state to provide a program of
education beyond secondary education;
(C) Provides an educational program for which the institution awards
a bachelor's degree or provides not less than a two-year program that is
acceptable for full credit toward such a degree;
(D) Is a public or other nonprofit institution; and
(E) Is accredited by a nationally recognized accrediting agency or
association or, if not so accredited, is an institution that has been
granted preaccreditation status by such an agency or association that
has been recognized by the Secretary of Education for the granting of
preaccreditation status, and the Secretary of Education has determined
there is satisfactory assurance the institution will meet the
accreditation standards of such an agency or association within a
reasonable time.
(ii) Affiliated or related nonprofit entity means a nonprofit entity
(including but not limited to a hospital and a medical or research
institution) connected or associated with an institution of higher
education, through shared ownership or control by the same board or
federation, operated by an institution of higher education, or attached
to an institution of higher education as a member, branch, cooperative,
or subsidiary.
(iii) Nonprofit research organization or Governmental research
organization means a research organization that is either a nonprofit
organization or entity primarily engaged in basic research and/or
applied research, or a United States Government entity whose primary
mission is the performance or promotion of basic research and/or applied
research. Basic research is general research to gain more comprehensive
knowledge or understanding of the subject under study, without specific
applications in mind. Basic research is also research that advances
scientific knowledge, but does not have specific immediate commercial
objectives although it may be in fields of present or commercial
interest. It may include research and investigation in the sciences,
social sciences, or humanities. Applied research is research to gain
knowledge or understanding to determine the means by which a specific,
recognized need may be met. Applied
[[Page 563]]
research includes investigations oriented to discovering new scientific
knowledge that has specific commercial objectives with respect to
products, processes, or services. It may include research and
investigation in the sciences, social sciences, or humanities.
(2) Nonprofit organization or entity, for the purpose of this
paragraph (e), means an organization qualified as a tax exempt
organization under the Internal Revenue Code of 1986, section 501(c)(3),
(c)(4), or (c)(6) (26 U.S.C. 501(c)(3), (c)(4) or (c)(6)), and which has
received approval as a tax exempt organization from the Internal Revenue
Service, as it relates to research or educational purposes.
(f) Professional athletes. In computing the prevailing wage for a
professional athlete (defined in Section 212(a)(5)(A)(iii)(II) of the
Act) when the job opportunity is covered by professional sports league
rules or regulations, the wage set forth in those rules or regulations
is considered the prevailing wage (see Section 212(p)(2) of the Act).
INA Section 212(a)(5)(A)(iii)(II), 8 U.S.C. 1182(a)(5)(A)(iii)(II)
(1999), defines ``professional athlete'' as an individual who is
employed as an athlete by--
(1) A team that is a member of an association of six or more
professional sports teams whose total combined revenues exceed
$10,000,000 per year, if the association governs the conduct of its
members and regulates the contests and exhibitions in which its member
teams regularly engage; or
(2) Any minor league team that is affiliated with such an
association.
(g) Employer-provided wage information. (1) If the job opportunity
is not covered by a CBA, or by a professional sports league's rules or
regulations, the NPC will consider wage information provided by the
employer in making a PWD. An employer survey can be submitted either
initially or after NPC issuance of a PWD derived from the OES survey. In
the latter situation, the new employer survey submission will be deemed
a new PWD request.
(2) In each case where the employer submits a survey or other wage
data for which it seeks acceptance, the employer must provide the NPC
with enough information about the survey methodology, including such
items as sample size and source, sample selection procedures, and survey
job descriptions, to allow the NPC to make a determination about the
adequacy of the data provided and validity of the statistical
methodology used in conducting the survey in accordance with guidance
issued by the OFLC national office.
(3) The survey submitted to the NPC must be based upon recently
collected data.
(i) A published survey must have been published within 24 months of
the date of submission to the NPC, must be the most current edition of
the survey, and the data upon which the survey is based must have been
collected within 24 months of the publication date of the survey.
(ii) A survey conducted by the employer must be based on data
collected within 24 months of the date it is submitted to the NPC.
(4) If the employer-provided survey is found not to be acceptable,
the NPC will inform the employer in writing of the reasons the survey
was not accepted.
(5) The employer, after receiving notification that the survey it
provided for NPC consideration is not acceptable, may file supplemental
information as provided by paragraph (h) of this section, file a new
request for a PWD, or appeal under Sec. 656.41.
(h) Submittal of supplemental information by employer. (1) If the
employer disagrees with the skill level assigned to its job opportunity,
or if the NPC informs the employer its survey is not acceptable, or if
there are other legitimate bases for such a review, the employer may
submit supplemental information to the NPC.
(2) The NPC will consider one supplemental submission about the
employer's survey or the skill level the NPC assigned to the job
opportunity or any other legitimate basis for the employer to request
such a review. If the NPC does not accept the employer's survey after
considering the supplemental information, or affirms its determination
concerning the skill level, it will inform the employer of the reasons
for its decision.
[[Page 564]]
(3) The employer may then apply for a new wage determination or
appeal under Sec. 656.41 of this part.
(i) Frequent users. The Secretary will issue guidance regarding the
process by which employers may obtain a wage determination to apply to a
subsequent application, when the wage is for the same occupation, skill
level, and area of intended employment. In no case may the wage rate the
employer provides the NPC be lower than the highest wage required by any
applicable Federal, State, or local law.
(j) Fees prohibited. No SWA or SWA employee may charge a fee in
connection with the filing of a request for a PWD, responding to such a
request, or responding to a request for a review of a SWA prevailing
wage determination under Sec. 656.41.
[69 FR 77386, Dec. 27, 2004, as amended at 73 FR 78068, Dec. 19, 2008]
Sec. 656.41 Review of prevailing wage determinations.
(a) Review of NPC PWD. Any employer desiring review of a PWD made by
a CO must make a request for such review within 30 days of the date from
when the PWD was issued. The request for review must be sent to the
director of the NPC that issued the PWD within 30 days of the date of
the PWD; clearly identify the PWD from which review is sought; set forth
the particular grounds for the request; and include all the materials
pertaining to the PWD submitted to the NPC up to the date of the PWD
received from the NPC.
(b) Processing of request by NPC. Upon the receipt of a request for
review, the NPC will review the employer's request and accompanying
documentation, and add any material that may have been omitted by the
employer, including any material the NPC sent the employer up to the
date of the PWD.
(c) Review on the record. The director will review the PWD solely on
the basis upon which the PWD was made and, upon the request for review,
may either affirm or modify the PWD.
(d) Request for review by BALCA. Any employer desiring review of the
director's determination must make a request for review by the BALCA
within 30 days of the date of the Director's decision.
(1) The request for review, statements, briefs, and other
submissions of the parties and amicus curiae must contain only legal
arguments and only such evidence that was within the record upon which
the director made his/her affirmation of the PWD.
(2) The request for review must be in writing and addressed to the
director of the NPC making the determination. Upon receipt of a request
for a review, the director will assemble an indexed appeal file in
reverse chronological order, with the index on top followed by the most
recent document.
(3) The director will send the Appeal File to the Office of
Administrative Law Judges, BALCA. The BALCA handles the appeals in
accordance with Sec. Sec. 656.26 and 656.27.
[73 FR 78069, Dec. 19, 2008]
[[Page 565]]
FINDING AIDS
--------------------------------------------------------------------
A list of CFR titles, subtitles, chapters, subchapters and parts and
an alphabetical list of agencies publishing in the CFR are included in
the CFR Index and Finding Aids volume to the Code of Federal Regulations
which is published separately and revised annually.
Table of CFR Titles and Chapters
Alphabetical List of Agencies Appearing in the CFR
List of CFR Sections Affected
[[Page 567]]
Table of CFR Titles and Chapters
(Revised as of April 1, 2014)
Title 1--General Provisions
I Administrative Committee of the Federal Register
(Parts 1--49)
II Office of the Federal Register (Parts 50--299)
III Administrative Conference of the United States (Parts
300--399)
IV Miscellaneous Agencies (Parts 400--500)
Title 2--Grants and Agreements
Subtitle A--Office of Management and Budget Guidance
for Grants and Agreements
I Office of Management and Budget Governmentwide
Guidance for Grants and Agreements (Parts 2--199)
II Office of Management and Budget Guidance (Parts 200--
299)
Subtitle B--Federal Agency Regulations for Grants and
Agreements
III Department of Health and Human Services (Parts 300--
399)
IV Department of Agriculture (Parts 400--499)
VI Department of State (Parts 600--699)
VII Agency for International Development (Parts 700--799)
VIII Department of Veterans Affairs (Parts 800--899)
IX Department of Energy (Parts 900--999)
XI Department of Defense (Parts 1100--1199)
XII Department of Transportation (Parts 1200--1299)
XIII Department of Commerce (Parts 1300--1399)
XIV Department of the Interior (Parts 1400--1499)
XV Environmental Protection Agency (Parts 1500--1599)
XVIII National Aeronautics and Space Administration (Parts
1800--1899)
XX United States Nuclear Regulatory Commission (Parts
2000--2099)
XXII Corporation for National and Community Service (Parts
2200--2299)
XXIII Social Security Administration (Parts 2300--2399)
XXIV Housing and Urban Development (Parts 2400--2499)
XXV National Science Foundation (Parts 2500--2599)
XXVI National Archives and Records Administration (Parts
2600--2699)
XXVII Small Business Administration (Parts 2700--2799)
XXVIII Department of Justice (Parts 2800--2899)
[[Page 568]]
XXX Department of Homeland Security (Parts 3000--3099)
XXXI Institute of Museum and Library Services (Parts 3100--
3199)
XXXII National Endowment for the Arts (Parts 3200--3299)
XXXIII National Endowment for the Humanities (Parts 3300--
3399)
XXXIV Department of Education (Parts 3400--3499)
XXXV Export-Import Bank of the United States (Parts 3500--
3599)
XXXVII Peace Corps (Parts 3700--3799)
LVIII Election Assistance Commission (Parts 5800--5899)
Title 3--The President
I Executive Office of the President (Parts 100--199)
Title 4--Accounts
I Government Accountability Office (Parts 1--199)
II Recovery Accountability and Transparency Board (Parts
200--299)
Title 5--Administrative Personnel
I Office of Personnel Management (Parts 1--1199)
II Merit Systems Protection Board (Parts 1200--1299)
III Office of Management and Budget (Parts 1300--1399)
V The International Organizations Employees Loyalty
Board (Parts 1500--1599)
VI Federal Retirement Thrift Investment Board (Parts
1600--1699)
VIII Office of Special Counsel (Parts 1800--1899)
IX Appalachian Regional Commission (Parts 1900--1999)
XI Armed Forces Retirement Home (Parts 2100--2199)
XIV Federal Labor Relations Authority, General Counsel of
the Federal Labor Relations Authority and Federal
Service Impasses Panel (Parts 2400--2499)
XV Office of Administration, Executive Office of the
President (Parts 2500--2599)
XVI Office of Government Ethics (Parts 2600--2699)
XXI Department of the Treasury (Parts 3100--3199)
XXII Federal Deposit Insurance Corporation (Parts 3200--
3299)
XXIII Department of Energy (Parts 3300--3399)
XXIV Federal Energy Regulatory Commission (Parts 3400--
3499)
XXV Department of the Interior (Parts 3500--3599)
XXVI Department of Defense (Parts 3600-- 3699)
XXVIII Department of Justice (Parts 3800--3899)
XXIX Federal Communications Commission (Parts 3900--3999)
XXX Farm Credit System Insurance Corporation (Parts 4000--
4099)
XXXI Farm Credit Administration (Parts 4100--4199)
[[Page 569]]
XXXIII Overseas Private Investment Corporation (Parts 4300--
4399)
XXXIV Securities and Exchange Commission (Parts 4400--4499)
XXXV Office of Personnel Management (Parts 4500--4599)
XXXVII Federal Election Commission (Parts 4700--4799)
XL Interstate Commerce Commission (Parts 5000--5099)
XLI Commodity Futures Trading Commission (Parts 5100--
5199)
XLII Department of Labor (Parts 5200--5299)
XLIII National Science Foundation (Parts 5300--5399)
XLV Department of Health and Human Services (Parts 5500--
5599)
XLVI Postal Rate Commission (Parts 5600--5699)
XLVII Federal Trade Commission (Parts 5700--5799)
XLVIII Nuclear Regulatory Commission (Parts 5800--5899)
XLIX Federal Labor Relations Authority (Parts 5900--5999)
L Department of Transportation (Parts 6000--6099)
LII Export-Import Bank of the United States (Parts 6200--
6299)
LIII Department of Education (Parts 6300--6399)
LIV Environmental Protection Agency (Parts 6400--6499)
LV National Endowment for the Arts (Parts 6500--6599)
LVI National Endowment for the Humanities (Parts 6600--
6699)
LVII General Services Administration (Parts 6700--6799)
LVIII Board of Governors of the Federal Reserve System
(Parts 6800--6899)
LIX National Aeronautics and Space Administration (Parts
6900--6999)
LX United States Postal Service (Parts 7000--7099)
LXI National Labor Relations Board (Parts 7100--7199)
LXII Equal Employment Opportunity Commission (Parts 7200--
7299)
LXIII Inter-American Foundation (Parts 7300--7399)
LXIV Merit Systems Protection Board (Parts 7400--7499)
LXV Department of Housing and Urban Development (Parts
7500--7599)
LXVI National Archives and Records Administration (Parts
7600--7699)
LXVII Institute of Museum and Library Services (Parts 7700--
7799)
LXVIII Commission on Civil Rights (Parts 7800--7899)
LXIX Tennessee Valley Authority (Parts 7900--7999)
LXX Court Services and Offender Supervision Agency for the
District of Columbia (Parts 8000--8099)
LXXI Consumer Product Safety Commission (Parts 8100--8199)
LXXIII Department of Agriculture (Parts 8300--8399)
LXXIV Federal Mine Safety and Health Review Commission
(Parts 8400--8499)
LXXVI Federal Retirement Thrift Investment Board (Parts
8600--8699)
LXXVII Office of Management and Budget (Parts 8700--8799)
LXXX Federal Housing Finance Agency (Parts 9000--9099)
LXXXIII Special Inspector General for Afghanistan
Reconstruction (Parts 9300--9399)
[[Page 570]]
LXXXIV Bureau of Consumer Financial Protection (Parts 9400--
9499)
LXXXVI National Credit Union Administration (Parts 9600--
9699)
XCVII Department of Homeland Security Human Resources
Management System (Department of Homeland
Security--Office of Personnel Management) (Parts
9700--9799)
XCVII Council of the Inspectors General on Integrity and
Efficiency (Parts 9800--9899)
Title 6--Domestic Security
I Department of Homeland Security, Office of the
Secretary (Parts 1--99)
X Privacy and Civil Liberties Oversight Board (Parts
1000--1099)
Title 7--Agriculture
Subtitle A--Office of the Secretary of Agriculture
(Parts 0--26)
Subtitle B--Regulations of the Department of
Agriculture
I Agricultural Marketing Service (Standards,
Inspections, Marketing Practices), Department of
Agriculture (Parts 27--209)
II Food and Nutrition Service, Department of Agriculture
(Parts 210--299)
III Animal and Plant Health Inspection Service, Department
of Agriculture (Parts 300--399)
IV Federal Crop Insurance Corporation, Department of
Agriculture (Parts 400--499)
V Agricultural Research Service, Department of
Agriculture (Parts 500--599)
VI Natural Resources Conservation Service, Department of
Agriculture (Parts 600--699)
VII Farm Service Agency, Department of Agriculture (Parts
700--799)
VIII Grain Inspection, Packers and Stockyards
Administration (Federal Grain Inspection Service),
Department of Agriculture (Parts 800--899)
IX Agricultural Marketing Service (Marketing Agreements
and Orders; Fruits, Vegetables, Nuts), Department
of Agriculture (Parts 900--999)
X Agricultural Marketing Service (Marketing Agreements
and Orders; Milk), Department of Agriculture
(Parts 1000--1199)
XI Agricultural Marketing Service (Marketing Agreements
and Orders; Miscellaneous Commodities), Department
of Agriculture (Parts 1200--1299)
XIV Commodity Credit Corporation, Department of
Agriculture (Parts 1400--1499)
XV Foreign Agricultural Service, Department of
Agriculture (Parts 1500--1599)
XVI Rural Telephone Bank, Department of Agriculture (Parts
1600--1699)
[[Page 571]]
XVII Rural Utilities Service, Department of Agriculture
(Parts 1700--1799)
XVIII Rural Housing Service, Rural Business-Cooperative
Service, Rural Utilities Service, and Farm Service
Agency, Department of Agriculture (Parts 1800--
2099)
XX Local Television Loan Guarantee Board (Parts 2200--
2299)
XXV Office of Advocacy and Outreach, Department of
Agriculture (Parts 2500--2599)
XXVI Office of Inspector General, Department of Agriculture
(Parts 2600--2699)
XXVII Office of Information Resources Management, Department
of Agriculture (Parts 2700--2799)
XXVIII Office of Operations, Department of Agriculture (Parts
2800--2899)
XXIX Office of Energy Policy and New Uses, Department of
Agriculture (Parts 2900--2999)
XXX Office of the Chief Financial Officer, Department of
Agriculture (Parts 3000--3099)
XXXI Office of Environmental Quality, Department of
Agriculture (Parts 3100--3199)
XXXII Office of Procurement and Property Management,
Department of Agriculture (Parts 3200--3299)
XXXIII Office of Transportation, Department of Agriculture
(Parts 3300--3399)
XXXIV National Institute of Food and Agriculture (Parts
3400--3499)
XXXV Rural Housing Service, Department of Agriculture
(Parts 3500--3599)
XXXVI National Agricultural Statistics Service, Department
of Agriculture (Parts 3600--3699)
XXXVII Economic Research Service, Department of Agriculture
(Parts 3700--3799)
XXXVIII World Agricultural Outlook Board, Department of
Agriculture (Parts 3800--3899)
XLI [Reserved]
XLII Rural Business-Cooperative Service and Rural Utilities
Service, Department of Agriculture (Parts 4200--
4299)
Title 8--Aliens and Nationality
I Department of Homeland Security (Immigration and
Naturalization) (Parts 1--499)
V Executive Office for Immigration Review, Department of
Justice (Parts 1000--1399)
Title 9--Animals and Animal Products
I Animal and Plant Health Inspection Service, Department
of Agriculture (Parts 1--199)
[[Page 572]]
II Grain Inspection, Packers and Stockyards
Administration (Packers and Stockyards Programs),
Department of Agriculture (Parts 200--299)
III Food Safety and Inspection Service, Department of
Agriculture (Parts 300--599)
Title 10--Energy
I Nuclear Regulatory Commission (Parts 0--199)
II Department of Energy (Parts 200--699)
III Department of Energy (Parts 700--999)
X Department of Energy (General Provisions) (Parts
1000--1099)
XIII Nuclear Waste Technical Review Board (Parts 1300--
1399)
XVII Defense Nuclear Facilities Safety Board (Parts 1700--
1799)
XVIII Northeast Interstate Low-Level Radioactive Waste
Commission (Parts 1800--1899)
Title 11--Federal Elections
I Federal Election Commission (Parts 1--9099)
II Election Assistance Commission (Parts 9400--9499)
Title 12--Banks and Banking
I Comptroller of the Currency, Department of the
Treasury (Parts 1--199)
II Federal Reserve System (Parts 200--299)
III Federal Deposit Insurance Corporation (Parts 300--399)
IV Export-Import Bank of the United States (Parts 400--
499)
V Office of Thrift Supervision, Department of the
Treasury (Parts 500--599)
VI Farm Credit Administration (Parts 600--699)
VII National Credit Union Administration (Parts 700--799)
VIII Federal Financing Bank (Parts 800--899)
IX Federal Housing Finance Board (Parts 900--999)
X Bureau of Consumer Financial Protection (Parts 1000--
1099)
XI Federal Financial Institutions Examination Council
(Parts 1100--1199)
XII Federal Housing Finance Agency (Parts 1200--1299)
XIII Financial Stability Oversight Council (Parts 1300--
1399)
XIV Farm Credit System Insurance Corporation (Parts 1400--
1499)
XV Department of the Treasury (Parts 1500--1599)
XVI Office of Financial Research (Parts 1600--1699)
XVII Office of Federal Housing Enterprise Oversight,
Department of Housing and Urban Development (Parts
1700--1799)
XVIII Community Development Financial Institutions Fund,
Department of the Treasury (Parts 1800--1899)
[[Page 573]]
Title 13--Business Credit and Assistance
I Small Business Administration (Parts 1--199)
III Economic Development Administration, Department of
Commerce (Parts 300--399)
IV Emergency Steel Guarantee Loan Board (Parts 400--499)
V Emergency Oil and Gas Guaranteed Loan Board (Parts
500--599)
Title 14--Aeronautics and Space
I Federal Aviation Administration, Department of
Transportation (Parts 1--199)
II Office of the Secretary, Department of Transportation
(Aviation Proceedings) (Parts 200--399)
III Commercial Space Transportation, Federal Aviation
Administration, Department of Transportation
(Parts 400--1199)
V National Aeronautics and Space Administration (Parts
1200--1299)
VI Air Transportation System Stabilization (Parts 1300--
1399)
Title 15--Commerce and Foreign Trade
Subtitle A--Office of the Secretary of Commerce (Parts
0--29)
Subtitle B--Regulations Relating to Commerce and
Foreign Trade
I Bureau of the Census, Department of Commerce (Parts
30--199)
II National Institute of Standards and Technology,
Department of Commerce (Parts 200--299)
III International Trade Administration, Department of
Commerce (Parts 300--399)
IV Foreign-Trade Zones Board, Department of Commerce
(Parts 400--499)
VII Bureau of Industry and Security, Department of
Commerce (Parts 700--799)
VIII Bureau of Economic Analysis, Department of Commerce
(Parts 800--899)
IX National Oceanic and Atmospheric Administration,
Department of Commerce (Parts 900--999)
XI Technology Administration, Department of Commerce
(Parts 1100--1199)
XIII East-West Foreign Trade Board (Parts 1300--1399)
XIV Minority Business Development Agency (Parts 1400--
1499)
Subtitle C--Regulations Relating to Foreign Trade
Agreements
XX Office of the United States Trade Representative
(Parts 2000--2099)
Subtitle D--Regulations Relating to Telecommunications
and Information
XXIII National Telecommunications and Information
Administration, Department of Commerce (Parts
2300--2399)
[[Page 574]]
Title 16--Commercial Practices
I Federal Trade Commission (Parts 0--999)
II Consumer Product Safety Commission (Parts 1000--1799)
Title 17--Commodity and Securities Exchanges
I Commodity Futures Trading Commission (Parts 1--199)
II Securities and Exchange Commission (Parts 200--399)
IV Department of the Treasury (Parts 400--499)
Title 18--Conservation of Power and Water Resources
I Federal Energy Regulatory Commission, Department of
Energy (Parts 1--399)
III Delaware River Basin Commission (Parts 400--499)
VI Water Resources Council (Parts 700--799)
VIII Susquehanna River Basin Commission (Parts 800--899)
XIII Tennessee Valley Authority (Parts 1300--1399)
Title 19--Customs Duties
I U.S. Customs and Border Protection, Department of
Homeland Security; Department of the Treasury
(Parts 0--199)
II United States International Trade Commission (Parts
200--299)
III International Trade Administration, Department of
Commerce (Parts 300--399)
IV U.S. Immigration and Customs Enforcement, Department
of Homeland Security (Parts 400--599)
Title 20--Employees' Benefits
I Office of Workers' Compensation Programs, Department
of Labor (Parts 1--199)
II Railroad Retirement Board (Parts 200--399)
III Social Security Administration (Parts 400--499)
IV Employees' Compensation Appeals Board, Department of
Labor (Parts 500--599)
V Employment and Training Administration, Department of
Labor (Parts 600--699)
VI Office of Workers' Compensation Programs, Department
of Labor (Parts 700--799)
VII Benefits Review Board, Department of Labor (Parts
800--899)
VIII Joint Board for the Enrollment of Actuaries (Parts
900--999)
IX Office of the Assistant Secretary for Veterans'
Employment and Training Service, Department of
Labor (Parts 1000--1099)
[[Page 575]]
Title 21--Food and Drugs
I Food and Drug Administration, Department of Health and
Human Services (Parts 1--1299)
II Drug Enforcement Administration, Department of Justice
(Parts 1300--1399)
III Office of National Drug Control Policy (Parts 1400--
1499)
Title 22--Foreign Relations
I Department of State (Parts 1--199)
II Agency for International Development (Parts 200--299)
III Peace Corps (Parts 300--399)
IV International Joint Commission, United States and
Canada (Parts 400--499)
V Broadcasting Board of Governors (Parts 500--599)
VII Overseas Private Investment Corporation (Parts 700--
799)
IX Foreign Service Grievance Board (Parts 900--999)
X Inter-American Foundation (Parts 1000--1099)
XI International Boundary and Water Commission, United
States and Mexico, United States Section (Parts
1100--1199)
XII United States International Development Cooperation
Agency (Parts 1200--1299)
XIII Millennium Challenge Corporation (Parts 1300--1399)
XIV Foreign Service Labor Relations Board; Federal Labor
Relations Authority; General Counsel of the
Federal Labor Relations Authority; and the Foreign
Service Impasse Disputes Panel (Parts 1400--1499)
XV African Development Foundation (Parts 1500--1599)
XVI Japan-United States Friendship Commission (Parts
1600--1699)
XVII United States Institute of Peace (Parts 1700--1799)
Title 23--Highways
I Federal Highway Administration, Department of
Transportation (Parts 1--999)
II National Highway Traffic Safety Administration and
Federal Highway Administration, Department of
Transportation (Parts 1200--1299)
III National Highway Traffic Safety Administration,
Department of Transportation (Parts 1300--1399)
Title 24--Housing and Urban Development
Subtitle A--Office of the Secretary, Department of
Housing and Urban Development (Parts 0--99)
Subtitle B--Regulations Relating to Housing and Urban
Development
I Office of Assistant Secretary for Equal Opportunity,
Department of Housing and Urban Development (Parts
100--199)
[[Page 576]]
II Office of Assistant Secretary for Housing-Federal
Housing Commissioner, Department of Housing and
Urban Development (Parts 200--299)
III Government National Mortgage Association, Department
of Housing and Urban Development (Parts 300--399)
IV Office of Housing and Office of Multifamily Housing
Assistance Restructuring, Department of Housing
and Urban Development (Parts 400--499)
V Office of Assistant Secretary for Community Planning
and Development, Department of Housing and Urban
Development (Parts 500--599)
VI Office of Assistant Secretary for Community Planning
and Development, Department of Housing and Urban
Development (Parts 600--699) [Reserved]
VII Office of the Secretary, Department of Housing and
Urban Development (Housing Assistance Programs and
Public and Indian Housing Programs) (Parts 700--
799)
VIII Office of the Assistant Secretary for Housing--Federal
Housing Commissioner, Department of Housing and
Urban Development (Section 8 Housing Assistance
Programs, Section 202 Direct Loan Program, Section
202 Supportive Housing for the Elderly Program and
Section 811 Supportive Housing for Persons With
Disabilities Program) (Parts 800--899)
IX Office of Assistant Secretary for Public and Indian
Housing, Department of Housing and Urban
Development (Parts 900--1699)
X Office of Assistant Secretary for Housing--Federal
Housing Commissioner, Department of Housing and
Urban Development (Interstate Land Sales
Registration Program) (Parts 1700--1799)
XII Office of Inspector General, Department of Housing and
Urban Development (Parts 2000--2099)
XV Emergency Mortgage Insurance and Loan Programs,
Department of Housing and Urban Development (Parts
2700--2799)
XX Office of Assistant Secretary for Housing--Federal
Housing Commissioner, Department of Housing and
Urban Development (Parts 3200--3899)
XXIV Board of Directors of the HOPE for Homeowners Program
(Parts 4000--4099)
XXV Neighborhood Reinvestment Corporation (Parts 4100--
4199)
Title 25--Indians
I Bureau of Indian Affairs, Department of the Interior
(Parts 1--299)
II Indian Arts and Crafts Board, Department of the
Interior (Parts 300--399)
III National Indian Gaming Commission, Department of the
Interior (Parts 500--599)
IV Office of Navajo and Hopi Indian Relocation (Parts
700--799)
V Bureau of Indian Affairs, Department of the Interior,
and Indian Health Service, Department of Health
and Human Services (Part 900)
[[Page 577]]
VI Office of the Assistant Secretary-Indian Affairs,
Department of the Interior (Parts 1000--1199)
VII Office of the Special Trustee for American Indians,
Department of the Interior (Parts 1200--1299)
Title 26--Internal Revenue
I Internal Revenue Service, Department of the Treasury
(Parts 1--End)
Title 27--Alcohol, Tobacco Products and Firearms
I Alcohol and Tobacco Tax and Trade Bureau, Department
of the Treasury (Parts 1--399)
II Bureau of Alcohol, Tobacco, Firearms, and Explosives,
Department of Justice (Parts 400--699)
Title 28--Judicial Administration
I Department of Justice (Parts 0--299)
III Federal Prison Industries, Inc., Department of Justice
(Parts 300--399)
V Bureau of Prisons, Department of Justice (Parts 500--
599)
VI Offices of Independent Counsel, Department of Justice
(Parts 600--699)
VII Office of Independent Counsel (Parts 700--799)
VIII Court Services and Offender Supervision Agency for the
District of Columbia (Parts 800--899)
IX National Crime Prevention and Privacy Compact Council
(Parts 900--999)
XI Department of Justice and Department of State (Parts
1100--1199)
Title 29--Labor
Subtitle A--Office of the Secretary of Labor (Parts
0--99)
Subtitle B--Regulations Relating to Labor
I National Labor Relations Board (Parts 100--199)
II Office of Labor-Management Standards, Department of
Labor (Parts 200--299)
III National Railroad Adjustment Board (Parts 300--399)
IV Office of Labor-Management Standards, Department of
Labor (Parts 400--499)
V Wage and Hour Division, Department of Labor (Parts
500--899)
IX Construction Industry Collective Bargaining Commission
(Parts 900--999)
X National Mediation Board (Parts 1200--1299)
XII Federal Mediation and Conciliation Service (Parts
1400--1499)
XIV Equal Employment Opportunity Commission (Parts 1600--
1699)
[[Page 578]]
XVII Occupational Safety and Health Administration,
Department of Labor (Parts 1900--1999)
XX Occupational Safety and Health Review Commission
(Parts 2200--2499)
XXV Employee Benefits Security Administration, Department
of Labor (Parts 2500--2599)
XXVII Federal Mine Safety and Health Review Commission
(Parts 2700--2799)
XL Pension Benefit Guaranty Corporation (Parts 4000--
4999)
Title 30--Mineral Resources
I Mine Safety and Health Administration, Department of
Labor (Parts 1--199)
II Bureau of Safety and Environmental Enforcement,
Department of the Interior (Parts 200--299)
IV Geological Survey, Department of the Interior (Parts
400--499)
V Bureau of Ocean Energy Management, Department of the
Interior (Parts 500--599)
VII Office of Surface Mining Reclamation and Enforcement,
Department of the Interior (Parts 700--999)
XII Office of Natural Resources Revenue, Department of the
Interior (Parts 1200--1299)
Title 31--Money and Finance: Treasury
Subtitle A--Office of the Secretary of the Treasury
(Parts 0--50)
Subtitle B--Regulations Relating to Money and Finance
I Monetary Offices, Department of the Treasury (Parts
51--199)
II Fiscal Service, Department of the Treasury (Parts
200--399)
IV Secret Service, Department of the Treasury (Parts
400--499)
V Office of Foreign Assets Control, Department of the
Treasury (Parts 500--599)
VI Bureau of Engraving and Printing, Department of the
Treasury (Parts 600--699)
VII Federal Law Enforcement Training Center, Department of
the Treasury (Parts 700--799)
VIII Office of International Investment, Department of the
Treasury (Parts 800--899)
IX Federal Claims Collection Standards (Department of the
Treasury--Department of Justice) (Parts 900--999)
X Financial Crimes Enforcement Network, Department of
the Treasury (Parts 1000--1099)
Title 32--National Defense
Subtitle A--Department of Defense
I Office of the Secretary of Defense (Parts 1--399)
[[Page 579]]
V Department of the Army (Parts 400--699)
VI Department of the Navy (Parts 700--799)
VII Department of the Air Force (Parts 800--1099)
Subtitle B--Other Regulations Relating to National
Defense
XII Defense Logistics Agency (Parts 1200--1299)
XVI Selective Service System (Parts 1600--1699)
XVII Office of the Director of National Intelligence (Parts
1700--1799)
XVIII National Counterintelligence Center (Parts 1800--1899)
XIX Central Intelligence Agency (Parts 1900--1999)
XX Information Security Oversight Office, National
Archives and Records Administration (Parts 2000--
2099)
XXI National Security Council (Parts 2100--2199)
XXIV Office of Science and Technology Policy (Parts 2400--
2499)
XXVII Office for Micronesian Status Negotiations (Parts
2700--2799)
XXVIII Office of the Vice President of the United States
(Parts 2800--2899)
Title 33--Navigation and Navigable Waters
I Coast Guard, Department of Homeland Security (Parts
1--199)
II Corps of Engineers, Department of the Army (Parts
200--399)
IV Saint Lawrence Seaway Development Corporation,
Department of Transportation (Parts 400--499)
Title 34--Education
Subtitle A--Office of the Secretary, Department of
Education (Parts 1--99)
Subtitle B--Regulations of the Offices of the
Department of Education
I Office for Civil Rights, Department of Education
(Parts 100--199)
II Office of Elementary and Secondary Education,
Department of Education (Parts 200--299)
III Office of Special Education and Rehabilitative
Services, Department of Education (Parts 300--399)
IV Office of Vocational and Adult Education, Department
of Education (Parts 400--499)
V Office of Bilingual Education and Minority Languages
Affairs, Department of Education (Parts 500--599)
VI Office of Postsecondary Education, Department of
Education (Parts 600--699)
VII Office of Educational Research and Improvement,
Department of Education (Parts 700--799)[Reserved]
Subtitle C--Regulations Relating to Education
XI National Institute for Literacy (Parts 1100--1199)
XII National Council on Disability (Parts 1200--1299)
[[Page 580]]
Title 35 [Reserved]
Title 36--Parks, Forests, and Public Property
I National Park Service, Department of the Interior
(Parts 1--199)
II Forest Service, Department of Agriculture (Parts 200--
299)
III Corps of Engineers, Department of the Army (Parts
300--399)
IV American Battle Monuments Commission (Parts 400--499)
V Smithsonian Institution (Parts 500--599)
VI [Reserved]
VII Library of Congress (Parts 700--799)
VIII Advisory Council on Historic Preservation (Parts 800--
899)
IX Pennsylvania Avenue Development Corporation (Parts
900--999)
X Presidio Trust (Parts 1000--1099)
XI Architectural and Transportation Barriers Compliance
Board (Parts 1100--1199)
XII National Archives and Records Administration (Parts
1200--1299)
XV Oklahoma City National Memorial Trust (Parts 1500--
1599)
XVI Morris K. Udall Scholarship and Excellence in National
Environmental Policy Foundation (Parts 1600--1699)
Title 37--Patents, Trademarks, and Copyrights
I United States Patent and Trademark Office, Department
of Commerce (Parts 1--199)
II U.S. Copyright Office, Library of Congress (Parts
200--299)
III Copyright Royalty Board, Library of Congress (Parts
300--399)
IV Assistant Secretary for Technology Policy, Department
of Commerce (Parts 400--599)
Title 38--Pensions, Bonuses, and Veterans' Relief
I Department of Veterans Affairs (Parts 0--199)
II Armed Forces Retirement Home (Parts 200--299)
Title 39--Postal Service
I United States Postal Service (Parts 1--999)
III Postal Regulatory Commission (Parts 3000--3099)
Title 40--Protection of Environment
I Environmental Protection Agency (Parts 1--1099)
IV Environmental Protection Agency and Department of
Justice (Parts 1400--1499)
V Council on Environmental Quality (Parts 1500--1599)
VI Chemical Safety and Hazard Investigation Board (Parts
1600--1699)
[[Page 581]]
VII Environmental Protection Agency and Department of
Defense; Uniform National Discharge Standards for
Vessels of the Armed Forces (Parts 1700--1799)
Title 41--Public Contracts and Property Management
Subtitle A--Federal Procurement Regulations System
[Note]
Subtitle B--Other Provisions Relating to Public
Contracts
50 Public Contracts, Department of Labor (Parts 50-1--50-
999)
51 Committee for Purchase From People Who Are Blind or
Severely Disabled (Parts 51-1--51-99)
60 Office of Federal Contract Compliance Programs, Equal
Employment Opportunity, Department of Labor (Parts
60-1--60-999)
61 Office of the Assistant Secretary for Veterans'
Employment and Training Service, Department of
Labor (Parts 61-1--61-999)
62--100 [Reserved]
Subtitle C--Federal Property Management Regulations
System
101 Federal Property Management Regulations (Parts 101-1--
101-99)
102 Federal Management Regulation (Parts 102-1--102-299)
103--104 [Reserved]
105 General Services Administration (Parts 105-1--105-999)
109 Department of Energy Property Management Regulations
(Parts 109-1--109-99)
114 Department of the Interior (Parts 114-1--114-99)
115 Environmental Protection Agency (Parts 115-1--115-99)
128 Department of Justice (Parts 128-1--128-99)
129--200 [Reserved]
Subtitle D--Other Provisions Relating to Property
Management [Reserved]
Subtitle E--Federal Information Resources Management
Regulations System [Reserved]
Subtitle F--Federal Travel Regulation System
300 General (Parts 300-1--300-99)
301 Temporary Duty (TDY) Travel Allowances (Parts 301-1--
301-99)
302 Relocation Allowances (Parts 302-1--302-99)
303 Payment of Expenses Connected with the Death of
Certain Employees (Part 303-1--303-99)
304 Payment of Travel Expenses from a Non-Federal Source
(Parts 304-1--304-99)
Title 42--Public Health
I Public Health Service, Department of Health and Human
Services (Parts 1--199)
IV Centers for Medicare & Medicaid Services, Department
of Health and Human Services (Parts 400--599)
[[Page 582]]
V Office of Inspector General-Health Care, Department of
Health and Human Services (Parts 1000--1999)
Title 43--Public Lands: Interior
Subtitle A--Office of the Secretary of the Interior
(Parts 1--199)
Subtitle B--Regulations Relating to Public Lands
I Bureau of Reclamation, Department of the Interior
(Parts 400--999)
II Bureau of Land Management, Department of the Interior
(Parts 1000--9999)
III Utah Reclamation Mitigation and Conservation
Commission (Parts 10000--10099)
Title 44--Emergency Management and Assistance
I Federal Emergency Management Agency, Department of
Homeland Security (Parts 0--399)
IV Department of Commerce and Department of
Transportation (Parts 400--499)
Title 45--Public Welfare
Subtitle A--Department of Health and Human Services
(Parts 1--199)
Subtitle B--Regulations Relating to Public Welfare
II Office of Family Assistance (Assistance Programs),
Administration for Children and Families,
Department of Health and Human Services (Parts
200--299)
III Office of Child Support Enforcement (Child Support
Enforcement Program), Administration for Children
and Families, Department of Health and Human
Services (Parts 300--399)
IV Office of Refugee Resettlement, Administration for
Children and Families, Department of Health and
Human Services (Parts 400--499)
V Foreign Claims Settlement Commission of the United
States, Department of Justice (Parts 500--599)
VI National Science Foundation (Parts 600--699)
VII Commission on Civil Rights (Parts 700--799)
VIII Office of Personnel Management (Parts 800--899)
X Office of Community Services, Administration for
Children and Families, Department of Health and
Human Services (Parts 1000--1099)
XI National Foundation on the Arts and the Humanities
(Parts 1100--1199)
XII Corporation for National and Community Service (Parts
1200--1299)
XIII Office of Human Development Services, Department of
Health and Human Services (Parts 1300--1399)
[[Page 583]]
XVI Legal Services Corporation (Parts 1600--1699)
XVII National Commission on Libraries and Information
Science (Parts 1700--1799)
XVIII Harry S. Truman Scholarship Foundation (Parts 1800--
1899)
XXI Commission on Fine Arts (Parts 2100--2199)
XXIII Arctic Research Commission (Part 2301)
XXIV James Madison Memorial Fellowship Foundation (Parts
2400--2499)
XXV Corporation for National and Community Service (Parts
2500--2599)
Title 46--Shipping
I Coast Guard, Department of Homeland Security (Parts
1--199)
II Maritime Administration, Department of Transportation
(Parts 200--399)
III Coast Guard (Great Lakes Pilotage), Department of
Homeland Security (Parts 400--499)
IV Federal Maritime Commission (Parts 500--599)
Title 47--Telecommunication
I Federal Communications Commission (Parts 0--199)
II Office of Science and Technology Policy and National
Security Council (Parts 200--299)
III National Telecommunications and Information
Administration, Department of Commerce (Parts
300--399)
IV National Telecommunications and Information
Administration, Department of Commerce, and
National Highway Traffic Safety Administration,
Department of Transportation (Parts 400--499)
Title 48--Federal Acquisition Regulations System
1 Federal Acquisition Regulation (Parts 1--99)
2 Defense Acquisition Regulations System, Department of
Defense (Parts 200--299)
3 Health and Human Services (Parts 300--399)
4 Department of Agriculture (Parts 400--499)
5 General Services Administration (Parts 500--599)
6 Department of State (Parts 600--699)
7 Agency for International Development (Parts 700--799)
8 Department of Veterans Affairs (Parts 800--899)
9 Department of Energy (Parts 900--999)
10 Department of the Treasury (Parts 1000--1099)
12 Department of Transportation (Parts 1200--1299)
13 Department of Commerce (Parts 1300--1399)
14 Department of the Interior (Parts 1400--1499)
[[Page 584]]
15 Environmental Protection Agency (Parts 1500--1599)
16 Office of Personnel Management, Federal Employees
Health Benefits Acquisition Regulation (Parts
1600--1699)
17 Office of Personnel Management (Parts 1700--1799)
18 National Aeronautics and Space Administration (Parts
1800--1899)
19 Broadcasting Board of Governors (Parts 1900--1999)
20 Nuclear Regulatory Commission (Parts 2000--2099)
21 Office of Personnel Management, Federal Employees
Group Life Insurance Federal Acquisition
Regulation (Parts 2100--2199)
23 Social Security Administration (Parts 2300--2399)
24 Department of Housing and Urban Development (Parts
2400--2499)
25 National Science Foundation (Parts 2500--2599)
28 Department of Justice (Parts 2800--2899)
29 Department of Labor (Parts 2900--2999)
30 Department of Homeland Security, Homeland Security
Acquisition Regulation (HSAR) (Parts 3000--3099)
34 Department of Education Acquisition Regulation (Parts
3400--3499)
51 Department of the Army Acquisition Regulations (Parts
5100--5199)
52 Department of the Navy Acquisition Regulations (Parts
5200--5299)
53 Department of the Air Force Federal Acquisition
Regulation Supplement (Parts 5300--5399)
[Reserved]
54 Defense Logistics Agency, Department of Defense (Parts
5400--5499)
57 African Development Foundation (Parts 5700--5799)
61 Civilian Board of Contract Appeals, General Services
Administration (Parts 6100--6199)
63 Department of Transportation Board of Contract Appeals
(Parts 6300--6399)
99 Cost Accounting Standards Board, Office of Federal
Procurement Policy, Office of Management and
Budget (Parts 9900--9999)
Title 49--Transportation
Subtitle A--Office of the Secretary of Transportation
(Parts 1--99)
Subtitle B--Other Regulations Relating to
Transportation
I Pipeline and Hazardous Materials Safety
Administration, Department of Transportation
(Parts 100--199)
II Federal Railroad Administration, Department of
Transportation (Parts 200--299)
III Federal Motor Carrier Safety Administration,
Department of Transportation (Parts 300--399)
IV Coast Guard, Department of Homeland Security (Parts
400--499)
[[Page 585]]
V National Highway Traffic Safety Administration,
Department of Transportation (Parts 500--599)
VI Federal Transit Administration, Department of
Transportation (Parts 600--699)
VII National Railroad Passenger Corporation (AMTRAK)
(Parts 700--799)
VIII National Transportation Safety Board (Parts 800--999)
X Surface Transportation Board, Department of
Transportation (Parts 1000--1399)
XI Research and Innovative Technology Administration,
Department of Transportation (Parts 1400--1499)
[Reserved]
XII Transportation Security Administration, Department of
Homeland Security (Parts 1500--1699)
Title 50--Wildlife and Fisheries
I United States Fish and Wildlife Service, Department of
the Interior (Parts 1--199)
II National Marine Fisheries Service, National Oceanic
and Atmospheric Administration, Department of
Commerce (Parts 200--299)
III International Fishing and Related Activities (Parts
300--399)
IV Joint Regulations (United States Fish and Wildlife
Service, Department of the Interior and National
Marine Fisheries Service, National Oceanic and
Atmospheric Administration, Department of
Commerce); Endangered Species Committee
Regulations (Parts 400--499)
V Marine Mammal Commission (Parts 500--599)
VI Fishery Conservation and Management, National Oceanic
and Atmospheric Administration, Department of
Commerce (Parts 600--699)
[[Page 587]]
Alphabetical List of Agencies Appearing in the CFR
(Revised as of April 1, 2014)
CFR Title, Subtitle or
Agency Chapter
Administrative Committee of the Federal Register 1, I
Administrative Conference of the United States 1, III
Advisory Council on Historic Preservation 36, VIII
Advocacy and Outreach, Office of 7, XXV
Afghanistan Reconstruction, Special Inspector 22, LXXXIII
General for
African Development Foundation 22, XV
Federal Acquisition Regulation 48, 57
Agency for International Development 2, VII; 22, II
Federal Acquisition Regulation 48, 7
Agricultural Marketing Service 7, I, IX, X, XI
Agricultural Research Service 7, V
Agriculture Department 2, IV; 5, LXXIII
Advocacy and Outreach, Office of 7, XXV
Agricultural Marketing Service 7, I, IX, X, XI
Agricultural Research Service 7, V
Animal and Plant Health Inspection Service 7, III; 9, I
Chief Financial Officer, Office of 7, XXX
Commodity Credit Corporation 7, XIV
Economic Research Service 7, XXXVII
Energy Policy and New Uses, Office of 2, IX; 7, XXIX
Environmental Quality, Office of 7, XXXI
Farm Service Agency 7, VII, XVIII
Federal Acquisition Regulation 48, 4
Federal Crop Insurance Corporation 7, IV
Food and Nutrition Service 7, II
Food Safety and Inspection Service 9, III
Foreign Agricultural Service 7, XV
Forest Service 36, II
Grain Inspection, Packers and Stockyards 7, VIII; 9, II
Administration
Information Resources Management, Office of 7, XXVII
Inspector General, Office of 7, XXVI
National Agricultural Library 7, XLI
National Agricultural Statistics Service 7, XXXVI
National Institute of Food and Agriculture 7, XXXIV
Natural Resources Conservation Service 7, VI
Operations, Office of 7, XXVIII
Procurement and Property Management, Office of 7, XXXII
Rural Business-Cooperative Service 7, XVIII, XLII, L
Rural Development Administration 7, XLII
Rural Housing Service 7, XVIII, XXXV, L
Rural Telephone Bank 7, XVI
Rural Utilities Service 7, XVII, XVIII, XLII, L
Secretary of Agriculture, Office of 7, Subtitle A
Transportation, Office of 7, XXXIII
World Agricultural Outlook Board 7, XXXVIII
Air Force Department 32, VII
Federal Acquisition Regulation Supplement 48, 53
Air Transportation Stabilization Board 14, VI
Alcohol and Tobacco Tax and Trade Bureau 27, I
Alcohol, Tobacco, Firearms, and Explosives, 27, II
Bureau of
AMTRAK 49, VII
American Battle Monuments Commission 36, IV
American Indians, Office of the Special Trustee 25, VII
[[Page 588]]
Animal and Plant Health Inspection Service 7, III; 9, I
Appalachian Regional Commission 5, IX
Architectural and Transportation Barriers 36, XI
Compliance Board
Arctic Research Commission 45, XXIII
Armed Forces Retirement Home 5, XI
Army Department 32, V
Engineers, Corps of 33, II; 36, III
Federal Acquisition Regulation 48, 51
Bilingual Education and Minority Languages 34, V
Affairs, Office of
Blind or Severely Disabled, Committee for 41, 51
Purchase from People Who Are
Broadcasting Board of Governors 22, V
Federal Acquisition Regulation 48, 19
Bureau of Ocean Energy Management, Regulation, 30, II
and Enforcement
Census Bureau 15, I
Centers for Medicare & Medicaid Services 42, IV
Central Intelligence Agency 32, XIX
Chemical Safety and Hazardous Investigation 40, VI
Board
Chief Financial Officer, Office of 7, XXX
Child Support Enforcement, Office of 45, III
Children and Families, Administration for 45, II, III, IV, X
Civil Rights, Commission on 5, LXVIII; 45, VII
Civil Rights, Office for 34, I
Council of the Inspectors General on Integrity 5, XCVIII
and Efficiency
Court Services and Offender Supervision Agency 5, LXX
for the District of Columbia
Coast Guard 33, I; 46, I; 49, IV
Coast Guard (Great Lakes Pilotage) 46, III
Commerce Department 2, XIII; 44, IV; 50, VI
Census Bureau 15, I
Economic Analysis, Bureau of 15, VIII
Economic Development Administration 13, III
Emergency Management and Assistance 44, IV
Federal Acquisition Regulation 48, 13
Foreign-Trade Zones Board 15, IV
Industry and Security, Bureau of 15, VII
International Trade Administration 15, III; 19, III
National Institute of Standards and Technology 15, II
National Marine Fisheries Service 50, II, IV
National Oceanic and Atmospheric 15, IX; 50, II, III, IV,
Administration VI
National Telecommunications and Information 15, XXIII; 47, III, IV
Administration
National Weather Service 15, IX
Patent and Trademark Office, United States 37, I
Productivity, Technology and Innovation, 37, IV
Assistant Secretary for
Secretary of Commerce, Office of 15, Subtitle A
Technology Administration 15, XI
Technology Policy, Assistant Secretary for 37, IV
Commercial Space Transportation 14, III
Commodity Credit Corporation 7, XIV
Commodity Futures Trading Commission 5, XLI; 17, I
Community Planning and Development, Office of 24, V, VI
Assistant Secretary for
Community Services, Office of 45, X
Comptroller of the Currency 12, I
Construction Industry Collective Bargaining 29, IX
Commission
Consumer Financial Protection Bureau 5, LXXXIV; 12, X
Consumer Product Safety Commission 5, LXXI; 16, II
Copyright Royalty Board 37, III
Corporation for National and Community Service 2, XXII; 45, XII, XXV
Cost Accounting Standards Board 48, 99
Council on Environmental Quality 40, V
Court Services and Offender Supervision Agency 5, LXX; 28, VIII
for the District of Columbia
Customs and Border Protection 19, I
[[Page 589]]
Defense Contract Audit Agency 32, I
Defense Department 2, XI; 5, XXVI; 32,
Subtitle A; 40, VII
Advanced Research Projects Agency 32, I
Air Force Department 32, VII
Army Department 32, V; 33, II; 36, III,
48, 51
Defense Acquisition Regulations System 48, 2
Defense Intelligence Agency 32, I
Defense Logistics Agency 32, I, XII; 48, 54
Engineers, Corps of 33, II; 36, III
National Imagery and Mapping Agency 32, I
Navy Department 32, VI; 48, 52
Secretary of Defense, Office of 2, XI; 32, I
Defense Contract Audit Agency 32, I
Defense Intelligence Agency 32, I
Defense Logistics Agency 32, XII; 48, 54
Defense Nuclear Facilities Safety Board 10, XVII
Delaware River Basin Commission 18, III
District of Columbia, Court Services and 5, LXX; 28, VIII
Offender Supervision Agency for the
Drug Enforcement Administration 21, II
East-West Foreign Trade Board 15, XIII
Economic Analysis, Bureau of 15, VIII
Economic Development Administration 13, III
Economic Research Service 7, XXXVII
Education, Department of 2, XXXIV; 5, LIII
Bilingual Education and Minority Languages 34, V
Affairs, Office of
Civil Rights, Office for 34, I
Educational Research and Improvement, Office 34, VII
of
Elementary and Secondary Education, Office of 34, II
Federal Acquisition Regulation 48, 34
Postsecondary Education, Office of 34, VI
Secretary of Education, Office of 34, Subtitle A
Special Education and Rehabilitative Services, 34, III
Office of
Vocational and Adult Education, Office of 34, IV
Educational Research and Improvement, Office of 34, VII
Election Assistance Commission 2, LVIII; 11, II
Elementary and Secondary Education, Office of 34, II
Emergency Oil and Gas Guaranteed Loan Board 13, V
Emergency Steel Guarantee Loan Board 13, IV
Employee Benefits Security Administration 29, XXV
Employees' Compensation Appeals Board 20, IV
Employees Loyalty Board 5, V
Employment and Training Administration 20, V
Employment Standards Administration 20, VI
Endangered Species Committee 50, IV
Energy, Department of 2, IX; 5, XXIII; 10, II,
III, X
Federal Acquisition Regulation 48, 9
Federal Energy Regulatory Commission 5, XXIV; 18, I
Property Management Regulations 41, 109
Energy, Office of 7, XXIX
Engineers, Corps of 33, II; 36, III
Engraving and Printing, Bureau of 31, VI
Environmental Protection Agency 2, XV; 5, LIV; 40, I, IV,
VII
Federal Acquisition Regulation 48, 15
Property Management Regulations 41, 115
Environmental Quality, Office of 7, XXXI
Equal Employment Opportunity Commission 5, LXII; 29, XIV
Equal Opportunity, Office of Assistant Secretary 24, I
for
Executive Office of the President 3, I
Administration, Office of 5, XV
Environmental Quality, Council on 40, V
Management and Budget, Office of 2, Subtitle A; 5, III,
LXXVII; 14, VI; 48, 99
[[Page 590]]
National Drug Control Policy, Office of 21, III
National Security Council 32, XXI; 47, 2
Presidential Documents 3
Science and Technology Policy, Office of 32, XXIV; 47, II
Trade Representative, Office of the United 15, XX
States
Export-Import Bank of the United States 2, XXXV; 5, LII; 12, IV
Family Assistance, Office of 45, II
Farm Credit Administration 5, XXXI; 12, VI
Farm Credit System Insurance Corporation 5, XXX; 12, XIV
Farm Service Agency 7, VII, XVIII
Federal Acquisition Regulation 48, 1
Federal Aviation Administration 14, I
Commercial Space Transportation 14, III
Federal Claims Collection Standards 31, IX
Federal Communications Commission 5, XXIX; 47, I
Federal Contract Compliance Programs, Office of 41, 60
Federal Crop Insurance Corporation 7, IV
Federal Deposit Insurance Corporation 5, XXII; 12, III
Federal Election Commission 5, XXXVII; 11, I
Federal Emergency Management Agency 44, I
Federal Employees Group Life Insurance Federal 48, 21
Acquisition Regulation
Federal Employees Health Benefits Acquisition 48, 16
Regulation
Federal Energy Regulatory Commission 5, XXIV; 18, I
Federal Financial Institutions Examination 12, XI
Council
Federal Financing Bank 12, VIII
Federal Highway Administration 23, I, II
Federal Home Loan Mortgage Corporation 1, IV
Federal Housing Enterprise Oversight Office 12, XVII
Federal Housing Finance Agency 5, LXXX; 12, XII
Federal Housing Finance Board 12, IX
Federal Labor Relations Authority 5, XIV, XLIX; 22, XIV
Federal Law Enforcement Training Center 31, VII
Federal Management Regulation 41, 102
Federal Maritime Commission 46, IV
Federal Mediation and Conciliation Service 29, XII
Federal Mine Safety and Health Review Commission 5, LXXIV; 29, XXVII
Federal Motor Carrier Safety Administration 49, III
Federal Prison Industries, Inc. 28, III
Federal Procurement Policy Office 48, 99
Federal Property Management Regulations 41, 101
Federal Railroad Administration 49, II
Federal Register, Administrative Committee of 1, I
Federal Register, Office of 1, II
Federal Reserve System 12, II
Board of Governors 5, LVIII
Federal Retirement Thrift Investment Board 5, VI, LXXVI
Federal Service Impasses Panel 5, XIV
Federal Trade Commission 5, XLVII; 16, I
Federal Transit Administration 49, VI
Federal Travel Regulation System 41, Subtitle F
Financial Crimes Enforcement Network 31, X
Financial Research Office 12, XVI
Financial Stability Oversight Council 12, XIII
Fine Arts, Commission on 45, XXI
Fiscal Service 31, II
Fish and Wildlife Service, United States 50, I, IV
Food and Drug Administration 21, I
Food and Nutrition Service 7, II
Food Safety and Inspection Service 9, III
Foreign Agricultural Service 7, XV
Foreign Assets Control, Office of 31, V
Foreign Claims Settlement Commission of the 45, V
United States
Foreign Service Grievance Board 22, IX
Foreign Service Impasse Disputes Panel 22, XIV
Foreign Service Labor Relations Board 22, XIV
Foreign-Trade Zones Board 15, IV
[[Page 591]]
Forest Service 36, II
General Services Administration 5, LVII; 41, 105
Contract Appeals, Board of 48, 61
Federal Acquisition Regulation 48, 5
Federal Management Regulation 41, 102
Federal Property Management Regulations 41, 101
Federal Travel Regulation System 41, Subtitle F
General 41, 300
Payment From a Non-Federal Source for Travel 41, 304
Expenses
Payment of Expenses Connected With the Death 41, 303
of Certain Employees
Relocation Allowances 41, 302
Temporary Duty (TDY) Travel Allowances 41, 301
Geological Survey 30, IV
Government Accountability Office 4, I
Government Ethics, Office of 5, XVI
Government National Mortgage Association 24, III
Grain Inspection, Packers and Stockyards 7, VIII; 9, II
Administration
Harry S. Truman Scholarship Foundation 45, XVIII
Health and Human Services, Department of 2, III; 5, XLV; 45,
Subtitle A,
Centers for Medicare & Medicaid Services 42, IV
Child Support Enforcement, Office of 45, III
Children and Families, Administration for 45, II, III, IV, X
Community Services, Office of 45, X
Family Assistance, Office of 45, II
Federal Acquisition Regulation 48, 3
Food and Drug Administration 21, I
Human Development Services, Office of 45, XIII
Indian Health Service 25, V
Inspector General (Health Care), Office of 42, V
Public Health Service 42, I
Refugee Resettlement, Office of 45, IV
Homeland Security, Department of 2, XXX; 6, I; 8, I
Coast Guard 33, I; 46, I; 49, IV
Coast Guard (Great Lakes Pilotage) 46, III
Customs and Border Protection 19, I
Federal Emergency Management Agency 44, I
Human Resources Management and Labor Relations 5, XCVII
Systems
Immigration and Customs Enforcement Bureau 19, IV
Transportation Security Administration 49, XII
HOPE for Homeowners Program, Board of Directors 24, XXIV
of
Housing and Urban Development, Department of 2, XXIV; 5, LXV; 24,
Subtitle B
Community Planning and Development, Office of 24, V, VI
Assistant Secretary for
Equal Opportunity, Office of Assistant 24, I
Secretary for
Federal Acquisition Regulation 48, 24
Federal Housing Enterprise Oversight, Office 12, XVII
of
Government National Mortgage Association 24, III
Housing--Federal Housing Commissioner, Office 24, II, VIII, X, XX
of Assistant Secretary for
Housing, Office of, and Multifamily Housing 24, IV
Assistance Restructuring, Office of
Inspector General, Office of 24, XII
Public and Indian Housing, Office of Assistant 24, IX
Secretary for
Secretary, Office of 24, Subtitle A, VII
Housing--Federal Housing Commissioner, Office of 24, II, VIII, X, XX
Assistant Secretary for
Housing, Office of, and Multifamily Housing 24, IV
Assistance Restructuring, Office of
Human Development Services, Office of 45, XIII
Immigration and Customs Enforcement Bureau 19, IV
Immigration Review, Executive Office for 8, V
Independent Counsel, Office of 28, VII
Indian Affairs, Bureau of 25, I, V
[[Page 592]]
Indian Affairs, Office of the Assistant 25, VI
Secretary
Indian Arts and Crafts Board 25, II
Indian Health Service 25, V
Industry and Security, Bureau of 15, VII
Information Resources Management, Office of 7, XXVII
Information Security Oversight Office, National 32, XX
Archives and Records Administration
Inspector General
Agriculture Department 7, XXVI
Health and Human Services Department 42, V
Housing and Urban Development Department 24, XII, XV
Institute of Peace, United States 22, XVII
Inter-American Foundation 5, LXIII; 22, X
Interior Department 2, XIV
American Indians, Office of the Special 25, VII
Trustee
Bureau of Ocean Energy Management, Regulation, 30, II
and Enforcement
Endangered Species Committee 50, IV
Federal Acquisition Regulation 48, 14
Federal Property Management Regulations System 41, 114
Fish and Wildlife Service, United States 50, I, IV
Geological Survey 30, IV
Indian Affairs, Bureau of 25, I, V
Indian Affairs, Office of the Assistant 25, VI
Secretary
Indian Arts and Crafts Board 25, II
Land Management, Bureau of 43, II
National Indian Gaming Commission 25, III
National Park Service 36, I
Natural Resource Revenue, Office of 30, XII
Ocean Energy Management, Bureau of 30, V
Reclamation, Bureau of 43, I
Secretary of the Interior, Office of 2, XIV; 43, Subtitle A
Surface Mining Reclamation and Enforcement, 30, VII
Office of
Internal Revenue Service 26, I
International Boundary and Water Commission, 22, XI
United States and Mexico, United States
Section
International Development, United States Agency 22, II
for
Federal Acquisition Regulation 48, 7
International Development Cooperation Agency, 22, XII
United States
International Joint Commission, United States 22, IV
and Canada
International Organizations Employees Loyalty 5, V
Board
International Trade Administration 15, III; 19, III
International Trade Commission, United States 19, II
Interstate Commerce Commission 5, XL
Investment Security, Office of 31, VIII
James Madison Memorial Fellowship Foundation 45, XXIV
Japan-United States Friendship Commission 22, XVI
Joint Board for the Enrollment of Actuaries 20, VIII
Justice Department 2, XXVIII; 5, XXVIII; 28,
I, XI; 40, IV
Alcohol, Tobacco, Firearms, and Explosives, 27, II
Bureau of
Drug Enforcement Administration 21, II
Federal Acquisition Regulation 48, 28
Federal Claims Collection Standards 31, IX
Federal Prison Industries, Inc. 28, III
Foreign Claims Settlement Commission of the 45, V
United States
Immigration Review, Executive Office for 8, V
Offices of Independent Counsel 28, VI
Prisons, Bureau of 28, V
Property Management Regulations 41, 128
Labor Department 5, XLII
Employee Benefits Security Administration 29, XXV
Employees' Compensation Appeals Board 20, IV
Employment and Training Administration 20, V
Employment Standards Administration 20, VI
[[Page 593]]
Federal Acquisition Regulation 48, 29
Federal Contract Compliance Programs, Office 41, 60
of
Federal Procurement Regulations System 41, 50
Labor-Management Standards, Office of 29, II, IV
Mine Safety and Health Administration 30, I
Occupational Safety and Health Administration 29, XVII
Office of Workers' Compensation Programs 20, VII
Public Contracts 41, 50
Secretary of Labor, Office of 29, Subtitle A
Veterans' Employment and Training Service, 41, 61; 20, IX
Office of the Assistant Secretary for
Wage and Hour Division 29, V
Workers' Compensation Programs, Office of 20, I
Labor-Management Standards, Office of 29, II, IV
Land Management, Bureau of 43, II
Legal Services Corporation 45, XVI
Library of Congress 36, VII
Copyright Royalty Board 37, III
U.S. Copyright Office 37, II
Local Television Loan Guarantee Board 7, XX
Management and Budget, Office of 5, III, LXXVII; 14, VI;
48, 99
Marine Mammal Commission 50, V
Maritime Administration 46, II
Merit Systems Protection Board 5, II, LXIV
Micronesian Status Negotiations, Office for 32, XXVII
Millennium Challenge Corporation 22, XIII
Mine Safety and Health Administration 30, I
Minority Business Development Agency 15, XIV
Miscellaneous Agencies 1, IV
Monetary Offices 31, I
Morris K. Udall Scholarship and Excellence in 36, XVI
National Environmental Policy Foundation
Museum and Library Services, Institute of 2, XXXI
National Aeronautics and Space Administration 2, XVIII; 5, LIX; 14, V
Federal Acquisition Regulation 48, 18
National Agricultural Library 7, XLI
National Agricultural Statistics Service 7, XXXVI
National and Community Service, Corporation for 2, XXII; 45, XII, XXV
National Archives and Records Administration 2, XXVI; 5, LXVI; 36, XII
Information Security Oversight Office 32, XX
National Capital Planning Commission 1, IV
National Commission for Employment Policy 1, IV
National Commission on Libraries and Information 45, XVII
Science
National Council on Disability 34, XII
National Counterintelligence Center 32, XVIII
National Credit Union Administration 5, LXXXVI; 12, VII
National Crime Prevention and Privacy Compact 28, IX
Council
National Drug Control Policy, Office of 21, III
National Endowment for the Arts 2, XXXII
National Endowment for the Humanities 2, XXXIII
National Foundation on the Arts and the 45, XI
Humanities
National Highway Traffic Safety Administration 23, II, III; 47, VI; 49, V
National Imagery and Mapping Agency 32, I
National Indian Gaming Commission 25, III
National Institute for Literacy 34, XI
National Institute of Food and Agriculture 7, XXXIV
National Institute of Standards and Technology 15, II
National Intelligence, Office of Director of 32, XVII
National Labor Relations Board 5, LXI; 29, I
National Marine Fisheries Service 50, II, IV
National Mediation Board 29, X
National Oceanic and Atmospheric Administration 15, IX; 50, II, III, IV,
VI
National Park Service 36, I
National Railroad Adjustment Board 29, III
National Railroad Passenger Corporation (AMTRAK) 49, VII
[[Page 594]]
National Science Foundation 2, XXV; 5, XLIII; 45, VI
Federal Acquisition Regulation 48, 25
National Security Council 32, XXI
National Security Council and Office of Science 47, II
and Technology Policy
National Telecommunications and Information 15, XXIII; 47, III, IV
Administration
National Transportation Safety Board 49, VIII
Natural Resources Conservation Service 7, VI
Natural Resource Revenue, Office of 30, XII
Navajo and Hopi Indian Relocation, Office of 25, IV
Navy Department 32, VI
Federal Acquisition Regulation 48, 52
Neighborhood Reinvestment Corporation 24, XXV
Northeast Interstate Low-Level Radioactive Waste 10, XVIII
Commission
Nuclear Regulatory Commission 2, XX; 5, XLVIII; 10, I
Federal Acquisition Regulation 48, 20
Occupational Safety and Health Administration 29, XVII
Occupational Safety and Health Review Commission 29, XX
Ocean Energy Management, Bureau of 30, V
Offices of Independent Counsel 28, VI
Office of Workers' Compensation Programs 20, VII
Oklahoma City National Memorial Trust 36, XV
Operations Office 7, XXVIII
Overseas Private Investment Corporation 5, XXXIII; 22, VII
Patent and Trademark Office, United States 37, I
Payment From a Non-Federal Source for Travel 41, 304
Expenses
Payment of Expenses Connected With the Death of 41, 303
Certain Employees
Peace Corps 2, XXXVII; 22, III
Pennsylvania Avenue Development Corporation 36, IX
Pension Benefit Guaranty Corporation 29, XL
Personnel Management, Office of 5, I, XXXV; 45, VIII
Human Resources Management and Labor Relations 5, XCVII
Systems, Department of Homeland Security
Federal Acquisition Regulation 48, 17
Federal Employees Group Life Insurance Federal 48, 21
Acquisition Regulation
Federal Employees Health Benefits Acquisition 48, 16
Regulation
Pipeline and Hazardous Materials Safety 49, I
Administration
Postal Regulatory Commission 5, XLVI; 39, III
Postal Service, United States 5, LX; 39, I
Postsecondary Education, Office of 34, VI
President's Commission on White House 1, IV
Fellowships
Presidential Documents 3
Presidio Trust 36, X
Prisons, Bureau of 28, V
Privacy and Civil Liberties Oversight Board 6, X
Procurement and Property Management, Office of 7, XXXII
Productivity, Technology and Innovation, 37, IV
Assistant Secretary
Public Contracts, Department of Labor 41, 50
Public and Indian Housing, Office of Assistant 24, IX
Secretary for
Public Health Service 42, I
Railroad Retirement Board 20, II
Reclamation, Bureau of 43, I
Recovery Accountability and Transparency Board 4, II
Refugee Resettlement, Office of 45, IV
Relocation Allowances 41, 302
Research and Innovative Technology 49, XI
Administration
Rural Business-Cooperative Service 7, XVIII, XLII, L
Rural Development Administration 7, XLII
Rural Housing Service 7, XVIII, XXXV, L
Rural Telephone Bank 7, XVI
Rural Utilities Service 7, XVII, XVIII, XLII, L
Saint Lawrence Seaway Development Corporation 33, IV
[[Page 595]]
Science and Technology Policy, Office of 32, XXIV
Science and Technology Policy, Office of, and 47, II
National Security Council
Secret Service 31, IV
Securities and Exchange Commission 5, XXXIV; 17, II
Selective Service System 32, XVI
Small Business Administration 2, XXVII; 13, I
Smithsonian Institution 36, V
Social Security Administration 2, XXIII; 20, III; 48, 23
Soldiers' and Airmen's Home, United States 5, XI
Special Counsel, Office of 5, VIII
Special Education and Rehabilitative Services, 34, III
Office of
State Department 2, VI; 22, I; 28, XI
Federal Acquisition Regulation 48, 6
Surface Mining Reclamation and Enforcement, 30, VII
Office of
Surface Transportation Board 49, X
Susquehanna River Basin Commission 18, VIII
Technology Administration 15, XI
Technology Policy, Assistant Secretary for 37, IV
Tennessee Valley Authority 5, LXIX; 18, XIII
Thrift Supervision Office, Department of the 12, V
Treasury
Trade Representative, United States, Office of 15, XX
Transportation, Department of 2, XII; 5, L
Commercial Space Transportation 14, III
Contract Appeals, Board of 48, 63
Emergency Management and Assistance 44, IV
Federal Acquisition Regulation 48, 12
Federal Aviation Administration 14, I
Federal Highway Administration 23, I, II
Federal Motor Carrier Safety Administration 49, III
Federal Railroad Administration 49, II
Federal Transit Administration 49, VI
Maritime Administration 46, II
National Highway Traffic Safety Administration 23, II, III; 47, IV; 49, V
Pipeline and Hazardous Materials Safety 49, I
Administration
Saint Lawrence Seaway Development Corporation 33, IV
Secretary of Transportation, Office of 14, II; 49, Subtitle A
Surface Transportation Board 49, X
Transportation Statistics Bureau 49, XI
Transportation, Office of 7, XXXIII
Transportation Security Administration 49, XII
Transportation Statistics Bureau 49, XI
Travel Allowances, Temporary Duty (TDY) 41, 301
Treasury Department 5, XXI; 12, XV; 17, IV;
31, IX
Alcohol and Tobacco Tax and Trade Bureau 27, I
Community Development Financial Institutions 12, XVIII
Fund
Comptroller of the Currency 12, I
Customs and Border Protection 19, I
Engraving and Printing, Bureau of 31, VI
Federal Acquisition Regulation 48, 10
Federal Claims Collection Standards 31, IX
Federal Law Enforcement Training Center 31, VII
Financial Crimes Enforcement Network 31, X
Fiscal Service 31, II
Foreign Assets Control, Office of 31, V
Internal Revenue Service 26, I
Investment Security, Office of 31, VIII
Monetary Offices 31, I
Secret Service 31, IV
Secretary of the Treasury, Office of 31, Subtitle A
Thrift Supervision, Office of 12, V
Truman, Harry S. Scholarship Foundation 45, XVIII
United States and Canada, International Joint 22, IV
Commission
United States and Mexico, International Boundary 22, XI
and Water Commission, United States Section
U.S. Copyright Office 37, II
[[Page 596]]
Utah Reclamation Mitigation and Conservation 43, III
Commission
Veterans Affairs Department 2, VIII; 38, I
Federal Acquisition Regulation 48, 8
Veterans' Employment and Training Service, 41, 61; 20, IX
Office of the Assistant Secretary for
Vice President of the United States, Office of 32, XXVIII
Vocational and Adult Education, Office of 34, IV
Wage and Hour Division 29, V
Water Resources Council 18, VI
Workers' Compensation Programs, Office of 20, I
World Agricultural Outlook Board 7, XXXVIII
[[Page 597]]
List of CFR Sections Affected
All changes in this volume of the Code of Federal Regulations (CFR) that
were made by documents published in the Federal Register since January
1, 2009 are enumerated in the following list. Entries indicate the
nature of the changes effected. Page numbers refer to Federal Register
pages. The user should consult the entries for chapters, parts and
subparts as well as sections for revisions.
For changes to this volume of the CFR prior to this listing, consult the
annual edition of the monthly List of CFR Sections Affected (LSA). The
LSA is available at www.fdsys.gov. For changes to this volume of the CFR
prior to 2001, see the ``List of CFR Sections Affected, 1949-1963, 1964-
1972, 1973-1985, and 1986-2000'' published in 11 separate volumes. The
``List of CFR Sections Affected 1986-2000'' is available at
www.fdsys.gov.
2009
20 CFR
74 FR
Page
Chapter V
655 Heading and authority citation revised.........................25985
655.1 Redesignated as 655.5 and suspended; new 655.1 added.........25985
655.5 Redesignated as 655.81 and suspended; redesignated from
655.1 and suspended........................................25985
655.81 Redesignated from 655.5 and suspended.......................25985
655.90--655.119 (Subpart B) Redesignated as 655.1290--655.1319
(Subpart N) and suspended..................................25985
655.90--655.113 (Subpart B) Added..................................25985
655.100 (b)(1) and (2) introductory text revised; interim...17601, 59073
655.200--655.215 (Subpart C) Added.................................26002
655.731 (a)(2)(ii)(C) correctly added..............................45561
655.1290--655.1319 (Subpart N) Redesignated from 655.90--655.119
(Subpart B) and suspended..................................25985
2010
20 CFR
75 FR
Page
Chapter V
606 Authority citation revised.....................................57156
606.3 Amended......................................................57156
606.20 (a)(3) amended..............................................57156
606.21 (c) and (d) amended.........................................57156
606.22 (b)(4), (c)(1), (2), (3) and (d)(3) amended.................57156
606.32 (b) revised.................................................57156
618 Added..........................................................17000
Clarification..................................................44720
641 Revised........................................................53812
655 Heading and authority citation revised..........................6959
Meeting.........................................................7367
Authority citation revised; eff. 4-5-10........................10403
655.0 Correctly reinstated; CFR correction.........................16000
655.1 Revised.......................................................6959
655.100--655.185 (Subpart B) Revised................................6959
655.1100--655.1150 (Subpart L) Nomenclature changes; eff. 4-5-10
10403
655.1101 Revised; eff. 4-5-10......................................10403
655.1102 Amended; eff. 4-5-10......................................10404
655.1110 Revised; eff. 4-5-10......................................10404
655.1115 (b) revised; eff. 4-5-10..................................10405
655.1116 (b) revised; eff, 4-5-10..................................10405
655.1130 (c) revised; eff. 4-5-10..................................10406
655.1135 (d) revised; eff. 4-5-10..................................10406
655.1150 (a) revised; eff. 4-5-10..................................10406
655.1200--655.1260 (Subpart M) Nomenclature changes; eff. 4-5-10
10403
655.1215 Revised; eff. 4-5-10......................................10406
655.1255 Revised; eff. 4-5-10......................................10406
[[Page 598]]
2011
20 CFR
76 FR
Page
Chapter V
655 Policy statement.................................60720, 73509, 82116
655.10 (b) introductory text, (1) and (2) revised; (b)(4), (5),
(f) and (g) removed; (b)(3), (6), (h) and (i) redesignated
as (b)(4), (5), (f) and (g); new (b)(3), (6) and (7)
added; eff. 1-1-12..........................................3483
Regulation at 76 FR 3483 eff. date changed to 9-30-11..........45667
Regulation at 76 FR 3483 eff. date delayed to 11-30-11.........59896
Regulation at 76 FR 3483 eff. date delayed to 1-1-12...........73508
Regulation at 76 FR 3483 eff. date delayed to 10-1-12..........82115
2012
20 CFR
77 FR
Page
Chapter V
626 Removed........................................................76862
627 Removed........................................................76862
628 Removed........................................................76862
631 Removed........................................................76862
632 Removed........................................................76862
633 Removed........................................................76862
634 Removed........................................................76862
636 Removed........................................................76862
637 Removed........................................................76862
638 Removed........................................................76862
638.526 Removed....................................................22207
638.527 Removed....................................................22207
641.140 Amended.....................................................4661
641.700 (c)(4) added................................................4661
641.710 (b)(3) added................................................4661
655 Policy statement..........................12723, 16157, 24137, 28764
655.1 Revised; eff. 4-23-12........................................10148
655.2 Revised; eff. 4-23-12........................................10148
655.3 Revised; eff. 4-23-12........................................10148
655.4 Revised; eff. 4-23-12........................................10148
655.5 Revised; eff. 4-23-12........................................10148
655.6 Revised; eff. 4-23-12........................................10148
655.7 Added; eff. 4-23-12..........................................10151
655.8 Added; eff. 4-23-12..........................................10151
655.9 Added; eff. 4-23-12..........................................10151
655.10 Undesignated center heading added; (a), (c), (d), (e), (h)
and (i) revised; (j) and (k) added; eff. 4-23-12...........10151
Regulation at 76 FR 3483 eff. date delayed to 3-27-13..........60040
655.11 Revised; eff. 4-23-12.......................................10152
655.12 Added; eff. 4-23-12.........................................10153
655.13 Added; eff. 4-23-12.........................................10153
655.15 Undesignated center heading added; section revised; eff. 4-
23-12......................................................10153
655.16 Added; eff. 4-23-12.........................................10154
655.17 Revised; eff. 4-23-12.......................................10154
655.18 Added; eff. 4-23-12.........................................10154
655.19 Added; eff. 4-23-12.........................................10154
655.20 Undesignated center heading added; section revised; eff. 4-
23-12......................................................10156
655.21 Removed; eff. 4-23-12.......................................10160
655.22 Removed; eff. 4-23-12.......................................10160
655.23 Removed; eff. 4-23-12.......................................10160
655.24 Removed; eff. 4-23-12.......................................10160
655.30 Revised; eff. 4-23-12.......................................10160
655.31 Revised; eff. 4-23-12.......................................10160
655.32 Revised; eff. 4-23-12.......................................10160
655.33 Revised; eff. 4-23-12.......................................10160
655.34 Revised; eff. 4-23-12.......................................10160
655.35 Revised; eff. 4-23-12.......................................10160
655.40 Undesignated center heading and section added; eff. 4-23-12
10162
655.41 Added; eff. 4-23-12.........................................10162
655.42 Added; eff. 4-23-12.........................................10162
655.43 Added; eff. 4-23-12.........................................10162
655.44 Added; eff. 4-23-12.........................................10162
655.45 Added; eff. 4-23-12.........................................10162
655.46 Added; eff. 4-23-12.........................................10162
655.47 Added; eff. 4-23-12.........................................10162
655.48 Added; eff. 4-23-12.........................................10162
655.50 Undesignated center heading added; section revised; eff. 4-
23-12......................................................10163
655.51 Added; eff. 4-23-12.........................................10164
655.52 Added; eff. 4-23-12.........................................10164
655.53 Added; eff. 4-23-12.........................................10164
655.54 Added; eff. 4-23-12.........................................10164
655.55 Added; eff. 4-23-12.........................................10164
655.56 Added; eff. 4-23-12.........................................10164
655.57 Added; eff. 4-23-12.........................................10164
655.60 Undesignated center heading added; section revised; eff. 4-
23-12......................................................10165
655.61 Added; eff. 4-23-12.........................................10166
655.62 Added; eff. 4-23-12.........................................10166
655.63 Added; eff. 4-23-12.........................................10166
655.65 Removed; eff. 4-23-12.......................................10166
655.70 Undesignated center heading added; section revised; eff. 4-
23-12......................................................10166
655.71 Revised; eff. 4-23-12.......................................10166
655.72 Revised; eff. 4-23-12.......................................10166
655.73 Revised; eff. 4-23-12.......................................10166
[[Page 599]]
655.74 Removed; eff. 4-23-12.......................................10169
655.75 Removed; eff. 4-23-12.......................................10169
655.76 Removed; eff. 4-23-12.......................................10169
655.80 Removed; eff. 4--23-12......................................10169
655.81 Removed; eff. 4-23-12.......................................10169
2013
20 CFR
78 FR
Page
Chapter V
655 Authority citation revised; interim............................24061
655.10 Regulation at 76 FR 3483 eff. date delayed to 10-1-13.......19098
(b)(2) revised; interim........................................24061
Regulation at 76 FR 3483 delayed indefinitely..................53643
655.200--655.215 (Subpart C) Removed...............................69543
655.300--655.350 (Subpart D) Removed...............................69541
655.400--655.460 (Subpart E) Removed...............................69541
655.900--655.950 (Subpart J) Removed...............................69539
655.1000--655.1060 (Subpart K) Removed.............................69539
2014
(Regulations published from January 1, 2014, through April 1, 2014)
20 CFR
79 FR
Page
Chapter V
619 Added...........................................................9411
[all]