[Title 20 CFR ]
[Code of Federal Regulations (annual edition) - April 1, 2024 Edition]
[From the U.S. Government Publishing Office]
[[Page i]]
Title 20
Employees' Benefits
________________________
Part 657 to End
Revised as of April 1, 2024
Containing a codification of documents of general
applicability and future effect
As of April 1, 2024
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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[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 20:
Chapter V--Employment and Training Administration,
Department of Labor (Continued) 3
Chapter VI--Office of Workers' Compensation
Programs, Department of Labor 403
Chapter VII--Benefits Review Board, Department of
Labor 613
Chapter VIII--Joint Board for the Enrollment of
Actuaries 633
Chapter IX--Office of the Assistant Secretary for
Veterans' Employment and Training Service,
Department of Labor 669
Finding Aids:
Table of CFR Titles and Chapters........................ 733
Alphabetical List of Agencies Appearing in the CFR...... 753
List of CFR Sections Affected........................... 763
[[Page iv]]
----------------------------
Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 20 CFR 658.400
refers to title 20, part
658, section 400.
----------------------------
[[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
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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
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LEGAL STATUS
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collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
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that volume.
[[Page vii]]
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Oliver A. Potts,
Director,
Office of the Federal Register
April 1, 2024
[[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, 2024.
An index to chapter III appears in the second volume.
For this volume, Michele Bugenhagen was Chief Editor. The Code of
Federal Regulations publication program is under the direction of the
John Hyrum Martinez, assisted by Stephen J. Frattini.
[[Page 1]]
TITLE 20--EMPLOYEES' BENEFITS
(This book contains part 657 to end)
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Part
chapter v--Employment and Training Administration,
Department of Labor (Continued)........................... 657
chapter vi--Office of Workers' Compensation Programs,
Department of Labor....................................... 701
chapter vii--Benefits Review Board, Department of Labor..... 801
chapter viii--Joint Board for the Enrollment of Actuaries... 900
chapter ix--Office of the Assistant Secretary for Veterans'
Employment and Training Service, Department of Labor...... 1001
[[Page 3]]
CHAPTER V--EMPLOYMENT AND TRAINING ADMINISTRATION, DEPARTMENT OF LABOR
(CONTINUED)
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Part Page
657
Provisions governing grants to State agencies for employment services
activities [Reserved]
658 Administrative provisions governing the
Wagner-Peyser Act Employment Service.... 5
660 Introduction to the regulations for
workforce investment systems under Title
I of the Workforce Investment Act....... 34
661 Statewide and local governance of the
workforce investment system under Title
I of the Workforce Investment Act....... 36
662 Description of the one-stop system under
Title I of the Workforce Investment Act. 51
663 Adult and dislocated worker activities under
Title I of the Workforce Investment Act. 58
664 Youth activities under Title I of the
Workforce Investment Act................ 74
665 Statewide workforce investment activities
under Title I of the Workforce
Investment Act.......................... 82
666 Performance accountability under Title I of
the Workforce Investment Act............ 86
667 Administrative provisions under Title I of
the Workforce Investment Act............ 92
668 Indian and Native American programs under
Title I of the Workforce Investment Act. 118
669 National farmworker jobs program under Title
I of the Workforce Investment Act....... 136
670 The Job Corps under Title I of the Workforce
Investment Act.......................... 145
671 National emergency grants for dislocated
workers................................. 162
672 Provisions governing the Youthbuild Program. 165
673-674
[Reserved]
[[Page 4]]
675 Introduction to the regulations for the
workforce development systems under
Title I of the Workforce Innovation and
Opportunity Act......................... 177
676 Unified and combined State plans under Title
I of the Workforce Innovation and
Opportunity Act......................... 181
677 Performance accountability under Title I of
the Workforce Innovation and Opportunity
Act..................................... 189
678 Description of the one-stop delivery system
under Title I of the Workforce
Innovation and Opportunity Act.......... 201
679 Statewide and local governance of the
workforce development system under Title
I of the Workforce Innovation and
Opportunity Act......................... 225
680 Adult and dislocated worker activities under
Title I of the Workforce Innovation and
Opportunity Act......................... 250
681 Youth activities under Title I of the
Workforce Innovation and Opportunity Act 274
682 Statewide activities under Title I of the
Workforce Innovation and Opportunity Act 287
683 Administrative provisions under Title I of
the Workforce Innovation and Opportunity
Act..................................... 295
684 Indian and Native American Programs under
Title I of the Workforce Innovation and
Opportunity Act......................... 328
685 National Farmworker Jobs Program under Title
I of the Workforce Innovation and
Opportunity Act......................... 345
686 The Job Corps under Title I of the Workforce
Innovation and Opportunity Act.......... 354
687 National Dislocated Worker Grants........... 379
688 Provisions governing the Youthbuild Program. 384
689-699
[Reserved]
[[Page 5]]
PART 657_PROVISIONS GOVERNING GRANTS TO STATE AGENCIES FOR EMPLOYMENT
SERVICES ACTIVITIES [RESERVED]
PART 658_ADMINISTRATIVE PROVISIONS GOVERNING THE WAGNER PEYSER ACT
EMPLOYMENT SERVICE--Table of Contents
Subpart A-D [Reserved]
Subpart E_Employment Service and Employment-Related Law Complaint System
(Complaint System)
Sec.
658.400 Purpose and scope of subpart.
Complaints Filed at the Local and State Level
658.410 Establishment of local and State complaint systems.
658.411 Action on complaints.
658.417 State hearings.
658.418 Decision of the State hearing official.
658.419 Apparent violations.
When a Complaint Rises to the Federal Level
658.420 Responsibilities of the Employment and Training Administration
regional office.
658.421 Processing of Wagner-Peyser Act Employment Service regulation-
related complaints.
658.422 Processing of employment-related law complaints by the Regional
Administrator.
658.424 Proceedings before the Office of Administrative Law Judges.
658.425 Decision of Department of Labor Administrative Law Judge.
658.426 Complaints against the United States Employment Service.
658.427 Severability.
Subpart F_Discontinuation of Services to Employers by the Wagner-Peyser
Act Employment Service
658.500 Scope and purpose of subpart.
658.501 Basis for discontinuation of services.
658.502 Notification to employers.
658.503 Discontinuation of services.
658.504 Reinstatement of services.
Subpart G_Review and Assessment of State Workforce Agency Compliance
With Employment Service Regulations
658.600 Scope and purpose of subpart.
658.601 State Workforce Agency responsibility.
658.602 Employment and Training Administration National Office
responsibility.
658.603 Employment and Training Administration regional office
responsibility.
658.604 Assessment and evaluation of program performance data.
658.605 Communication of findings to State agencies.
Subpart H_Federal Application of Remedial Action to State Workforce
Agencies
658.700 Scope and purpose of subpart.
658.701 Statements of policy.
658.702 Initial action by the Regional Administrator.
658.703 Emergency corrective action.
658.704 Remedial actions.
658.705 Decision to decertify.
658.706 Notice of decertification.
658.707 Requests for hearings.
658.708 Hearings.
658.709 Conduct of hearings.
658.710 Decision of the Administrative Law Judge.
658.711 Decision of the Administrative Review Board.
Authority: Pub. L. 113-128, 128 Stat. 1425 (July 22, 2014); 29
U.S.C. chapter 4B.
Source: 81 FR 56352, Aug. 19, 2016, unless otherwise noted.
Subpart A-D [Reserved]
Subpart E_Employment Service and Employment-Related Law Complaint System
(Complaint System)
Sec. 658.400 Purpose and scope of subpart.
(a) This subpart sets forth the regulations governing the Complaint
System for the Wagner-Peyser Act Employment Service (ES) at the State
and Federal levels. Specifically, the Complaint System processes
complaints against an employer about the specific job to which the
applicant was referred through the ES and complaints involving the
failure to comply with the ES regulations under parts 651, 652, 653, and
654 of this chapter and this part. As noted in Sec. 658.411(d)(6), this
subpart only covers ES-related complaints made within 2 years of the
alleged violation.
[[Page 6]]
(b) Any complaints alleging violations under the Unemployment
Insurance program, under Workforce Innovation and Opportunity Act (WIOA)
title I programs, or complaints by veterans alleging employer violations
of the mandatory listing requirements under 38 U.S.C. 4212 are not
covered by this subpart and must be referred to the appropriate
administering agency which would follow the procedures set forth in the
respective regulations.
(c) The Complaint System also accepts, refers, and, under certain
circumstances, tracks complaints involving employment-related laws as
defined in Sec. 651.10 of this chapter.
(d) A complainant may designate an individual to act as their
representative.
[81 FR 56352, Aug. 19, 2016, as amended at 88 FR 82731, Nov. 24, 2023]
Complaints Filed at the Local and State Level
Sec. 658.410 Establishment of local and State complaint systems.
(a) Each State Workforce Agency (SWA) must establish and maintain a
Complaint System pursuant to this subpart.
(b) The State Administrator must have overall responsibility for the
operation of the Complaint System; this includes responsibility for the
informal resolution of complaints. In the ES office, the ES Office
Manager is responsible for the operation of the Complaint System.
(c) SWAs must ensure centralized control procedures are established
for the processing of complaints and apparent violations. The ES Office
Manager and the State Administrator must ensure a central complaint log
is maintained, listing all complaints taken by the ES office or the SWA
and apparent violations identified by ES staff, and specifying for each
complaint or apparent violation:
(1) The name of the complainant (for complaints);
(2) The name of the respondent (employer or State agency);
(3) The date the complaint is filed or the apparent violation was
identified;
(4) Whether the complaint is made by or on behalf of a migrant and
seasonal farmworker (MSFW) or whether the apparent violation affects an
MSFW;
(5) Whether the complaint or apparent violation concerns an
employment-related law or the ES regulations; and
(6) The actions taken (including any documents the SWA sent or
received and the date the SWA took such action(s)), and whether the
complaint or apparent violation has been resolved, including informally.
(d) State agencies must ensure information pertaining to the use of
the Complaint System is publicized, which must include, but is not
limited to, the prominent display of an Employment and Training
Administration (ETA)-approved Complaint System poster in each one-stop
center.
(e) Each one-stop center must ensure there is appropriate staff
available during regular office hours to take complaints.
(f) Complaints may be accepted in any one-stop center, or by a SWA,
or elsewhere by outreach staff.
(g) All complaints filed through the ES office must be processed by
a trained Complaint System Representative.
(h) All complaints received by a SWA must be assigned to a trained
Complaint System Representative designated by the State Administrator.
Complaints must not be assigned to the State Monitor Advocate (SMA).
(i) State agencies must ensure any action taken by the Complaint
System Representative, including referral on a complaint from an MSFW,
is fully documented and contains all relevant information, including a
notation of the type of each complaint pursuant to Department guidance,
a copy of the original complaint form, a copy of any ES-related reports,
any relevant correspondence, a list of actions taken, a record of
pertinent telephone calls, and all correspondence relating thereto.
(j) Within 1 month after the end of the calendar quarter, the ES
office manager must transmit an electronic copy of the quarterly
Complaint System log described in paragraph (c) of this section to the
SMA. These logs must be made available to the Department upon request.
(k) The appropriate ES staff processing a complaint must offer to
assist
[[Page 7]]
the complainant through the provision of appropriate services.
(l) The State Administrator must establish a referral system for
cases where a complaint is filed alleging a violation that occurred in
the same State but through a different ES office.
(m) Follow-up on unresolved complaints. When an MSFW submits a
complaint, the Complaint System Representative must follow up monthly on
the processing of the complaint and must inform the complainant of the
status of the complaint. No follow-up with the complainant is required
for non-MSFW complaints.
(n) A complainant may designate an individual to act as their
representative throughout the filing and processing of a complaint.
[81 FR 56352, Aug. 19, 2016, as amended at 85 FR 628, Jan. 6, 2020; 88
FR 82731, Nov. 24, 2023]
Sec. 658.411 Action on complaints.
(a) Filing complaints.
(1) Whenever an individual indicates an interest in filing a
complaint under this subpart with an ES office, the SWA, or outreach
staff, the individual receiving the complaint must offer to explain the
operation of the Complaint System and must offer to take the complaint
in writing.
(2) During the initial discussion with the complainant, the staff
taking the complaint must:
(i) Make every effort to obtain all the information they perceive to
be necessary to investigate the complaint;
(ii) Request that the complainant indicate all of the physical
addresses, email addresses, telephone numbers, and any other helpful
means by which they might be contacted during the investigation of the
complaint; and
(iii) Request that the complainant contact the Complaint System
Representative before leaving the area if possible, and explain the need
to maintain contact during the investigation.
(3) The staff must ensure the complainant (or their representative)
submits the complaint on the Complaint/Referral Form or another
complaint form prescribed or approved by the Department or submits
complaint information which satisfies paragraph (a)(4) of this section.
The Complaint/Referral Form must be used for all complaints, including
complaints about unlawful discrimination, except as provided in
paragraph (a)(4) of this section. The staff must offer to assist the
complainant in filling out the form and submitting all necessary
information and must do so if the complainant desires such assistance.
If the complainant also represents several other complainants, all such
complainants must be named. The complainant, or their representative,
must sign the completed form in writing or electronically. The identity
of the complainant(s) and any persons who furnish information relating
to, or assisting in, an investigation of a complaint must be kept
confidential to the maximum extent possible, consistent with applicable
law and a fair determination of the complaint. A copy of the completed
complaint submission must be given to the complainant(s), and the
complaint form must be given to the appropriate Complaint System
Representative described in Sec. 658.410(g).
(4) Any complaint in a reasonable form (letter or email) which is
signed by the complainant, or their representative, and includes
sufficient information to initiate an investigation must be treated as
if it were a properly completed Complaint/Referral Form filed in person.
A letter (via hard copy or email) confirming the complaint was received
must be sent to the complainant and the document must be sent to the
appropriate Complaint System Representative. The Complaint System
Representative must request additional information from the complainant
if the complainant has not provided sufficient information to
investigate the matter expeditiously.
(b) Complaints regarding an employment-related law. (1) When a
complaint is filed regarding an employment-related law with an ES office
or a SWA, and paragraph (c) of this section does not apply, the office
must determine if the complainant is an MSFW.
(i) If the complainant is a non-MSFW, the office must immediately
refer the complainant to the appropriate enforcement agency, another
public agency, a legal aid organization, and/or a consumer advocate
organization, as appropriate, for assistance. Upon completing the
referral, the local
[[Page 8]]
or State representative is not required to follow up with the
complainant.
(ii) If the complainant is a MSFW, the ES office or SWA Complaint
System Representative must:
(A) Take from the MSFW or their representative, in writing (hard
copy or electronic), the complaint(s) describing the alleged
violation(s) of the employment-related law(s); and
(B) Attempt to resolve the issue informally at the local level,
except in cases where the complaint was submitted to the SWA and the
Complaint System Representative determines that they must take immediate
action or in cases where informal resolution at the local level would be
detrimental to the complainant(s). In cases where informal resolution at
the local level would be detrimental to the complainant(s), the
Complaint System Representative must immediately refer the complaint to
the appropriate enforcement agency. Concurrently, the Complaint System
Representative must offer to refer the MSFW to other ES services should
the MSFW be interested.
(C) If the issue is not resolved within 5 business days, the
Complaint System Representative must refer the complaint to the
appropriate enforcement agency (or another public agency, a legal aid
organization, or a consumer advocate organization, as appropriate) for
further assistance.
(D) If the ES office or SWA Complaint System Representative
determines that the complaint must be referred to a State or Federal
agency, they must refer the complaint immediately to the appropriate
enforcement agency for prompt action.
(E) If the complaint was referred under paragraph (b)(1)(ii)(D) of
this section, the representative must notify the complainant of the
enforcement agency to which the complaint was referred.
(F) When a complaint alleges an employer in a different State from
where the complaint is filed has violated an employment-related law:
(1) The ES office or SWA receiving the complaint must ensure the
Complaint/Referral Form is adequately completed and then immediately
send a copy of the Complaint/Referral Form and copies of any relevant
documents to the SWA in the other State. Copies of the referral letter
must be sent to the complainant, and copies of the complaint and
referral letter must be sent to the ETA Regional Office(s) with
jurisdiction over the transferring and receiving State agencies. All
such copies must be sent via hard copy or electronic mail.
(2) The SWA receiving the complaint must process the complaint as if
it had been initially filed with that SWA.
(3) The ETA Regional Office with jurisdiction over the receiving SWA
must follow up with it to ensure the complaint is processed in
accordance with these regulations.
(2) If an enforcement agency makes a final determination that the
employer violated an employment-related law and the complaint is
connected to a job order, the SWA must initiate procedures for
discontinuation of services immediately in accordance with subpart F of
this part. If this occurs, the SWA must notify the complainant and the
employer of this action.
(c) Complaints alleging unlawful discrimination or reprisal for
protected activity. All complaints received under this subpart by an ES
office or a SWA alleging unlawful discrimination or reprisal for
protected activity in violation of nondiscrimination laws, such as those
enforced by the Equal Employment Opportunity Commission (EEOC) or the
Department of Labor's Civil Rights Center (CRC), or in violation of the
Immigration and Nationality Act's anti-discrimination provision found at
8 U.S.C. 1324b, must be logged and immediately referred to the State-
level E.O. Officer. The Complaint System Representative must notify the
complainant of the referral in writing.
(2) Any complaints received either at the local and State level or
at the ETA regional office, that allege violations of civil rights laws
and regulations such as those under title VI of the Civil Rights Act or
sec. 188 of WIOA, including for beneficiaries (as defined in 29 CFR
38.4) only, on the basis of citizenship status or participant status, as
well as reprisal for protected activity, must immediately be logged and
directed or forwarded to the recipient's Equal Opportunity Officer or
the CRC.
[[Page 9]]
(d) Complaints regarding the ES regulations (ES complaints). (1)
When an ES complaint is filed with an ES office or a SWA, and paragraph
(c) of this section does not apply, the following procedures apply:
(i) When an ES complaint is filed against an employer, the proper
office to process the complaint is the ES office serving the area in
which the employer is located.
(ii) When a complaint is against an employer in another State or
against another SWA:
(A) The ES office or SWA receiving the complaint must ensure the
Complaint/Referral Form is adequately completed, and then immediately
send a copy of the Complaint/Referral Form and copies of any relevant
documents to the SWA in the other State. Copies of the referral letter
must be sent to the complainant, and copies of the complaint and
referral letter must be sent to the ETA Regional Office(s) with
jurisdiction over the transferring and receiving State agencies. All
such copies must be sent via hard copy or electronic mail.
(B) The SWA receiving the complaint must process the complaint as if
it had been initially filed with that SWA.
(C) The ETA Regional Office with jurisdiction over the receiving SWA
must follow up with it to ensure the complaint is processed in
accordance with these regulations.
(D) If the complaint is against more than one SWA, the complaint
must so clearly state. Additionally, the complaints must be processed as
separate complaints and must be processed according to procedures in
this paragraph (d).
(iii) When an ES complaint is filed against an ES office, the proper
office to process the complaint is the ES office serving the area in
which the alleged violation occurred.
(iv) When an ES complaint is filed against more than one ES offices
and is in regard to an alleged agency-wide violation, the SWA
representative or their designee must process the complaint.
(v) When a complaint is filed alleging a violation that occurred in
the same State but through a different ES office, the ES office where
the complaint is filed must ensure that the Complaint/Referral Form is
adequately completed and send the form to the appropriate local ES
office for tracking, further referral if necessary, and follow-up. A
copy of the referral letter must be sent to the complainant via hard
copy or electronic mail.
(2)(i) If a complaint regarding an alleged violation of the ES
regulations is filed in a ES office by either a non-MSFW or MSFW, or
their representative(s) (or if all necessary information has been
submitted to the office pursuant to paragraph (a)(4) of this section),
the appropriate ES office Complaint System Representative must
investigate and attempt to resolve the complaint immediately upon
receipt.
(ii) If resolution has not been achieved to the satisfaction of the
complainant within 15 working days after receipt of the complaint, or 5
working days with respect to complaints filed by or on behalf of MSFWs,
(or after all necessary information has been submitted to the ES office
pursuant to paragraph (a)(4) of this section), the Complaint System
Representative must send the complaint to the SWA for resolution or
further action.
(iii) The ES office must notify the complainant and the respondent,
in writing (via hard copy or electronic mail), of the determination
(pursuant to paragraph (d)(5) of this section) of its investigation
under paragraph (d)(2)(i) of this section, or of the referral to the SWA
(if referred).
(3) When a non-MSFW or their representative files a complaint
regarding the ES regulations with a SWA, or when a non-MSFW complaint is
referred from an ES office the following procedures apply:
(i) If the complaint is not transferred to an enforcement agency
under paragraph (b)(1)(i) of this section the Complaint System
Representative must investigate and attempt to resolve the complaint
immediately upon receipt.
(ii) If resolution at the SWA level has not been accomplished within
30 working days after the complaint was received by the SWA (or after
all necessary information has been submitted to the SWA pursuant to
paragraph (a)(4) of this section), whether the complaint was received
directly or from an
[[Page 10]]
ES office pursuant to paragraph (d)(2)(ii) of this section, the SWA
official must make a written determination regarding the complaint and
must send electronic copies to the complainant and the respondent. The
determination must follow the procedures set forth in paragraph (d)(5)
of this section.
(4)(i) When a MSFW or their representative files a complaint
regarding the ES regulations directly with a SWA, or when a MSFW
complaint is referred from an ES office, the Complaint System
Representative must investigate and attempt to resolve the complaint
immediately upon receipt and may, if necessary, conduct a further
investigation.
(ii) If resolution at the SWA level has not been accomplished within
20 business days after the complaint was received by the SWA (or after
all necessary information has been submitted to the SWA pursuant to
paragraph (a)(4) of this section), the Complaint System Representative
must make a written determination regarding the complaint and must send
electronic copies to the complainant and the respondent. The
determination must follow the procedures set forth in paragraph (d)(5)
of this section.
(5)(i) All written determinations by the SWA on complaints under the
ES regulations must be sent by certified mail (or another legally viable
method) and a copy of the determination may be sent via electronic mail.
The determination must include all the following:
(A) The results of any SWA investigation;
(B) The conclusions reached on the allegations of the complaint;
(C) If a resolution was not reached, an explanation of why the
complaint was not resolved; and
(D) If the complaint is against the SWA, an offer to the complainant
of the opportunity to request, in writing, a hearing within 20 business
days after the certified date of receipt of the notification.
(ii) If the SWA determines that the employer has not violated the ES
regulations, the SWA must offer to the complainant the opportunity to
request, in writing, a hearing within 20 business days after the
certified date of receipt of the notification.
(iii) If the SWA, within 20 business days from the certified date of
receipt of the notification provided for in paragraph (d)(5) of this
section, receives a written request (via hard copy or electronic mail)
for a hearing, the SWA must refer the complaint to a State hearing
official for hearing. The SWA must, in writing (via hard copy or
electronic mail), notify the respective parties to whom the
determination was sent that:
(A) The parties will be notified of the date, time, and place of the
hearing;
(B) The parties may be represented at the hearing by an attorney or
other representative;
(C) The parties may bring witnesses and/or documentary evidence to
the hearing;
(D) The parties may cross-examine opposing witnesses at the hearing;
(E) The decision on the complaint will be based on the evidence
presented at the hearing;
(F) The State hearing official may reschedule the hearing at the
request of a party or its representative; and
(G) With the consent of the SWA and of the State hearing official,
the party who requested the hearing may withdraw the request for the
hearing in writing before the hearing.
(iv) If the State agency makes a final determination that the
employer who has or is currently using the ES has violated the ES
regulations, the determination, pursuant to paragraph (d)(5) of this
section, must state that the State will initiate procedures for
discontinuation of services to the employer in accordance with subpart F
of this part.
(6) A complaint regarding the ES regulations must be processed to
resolution by these regulations only if it is made within 2 years of the
alleged occurrence.
(e) Resolution of complaints. A complaint is considered resolved
when:
(1) The complainant indicates satisfaction with the outcome via
written correspondence;
(2) The complainant chooses not to elevate the complaint to the next
level of review;
[[Page 11]]
(3) The complainant or the complainant's authorized representative
fails to respond to a request for information under paragraph (a)(4) of
this section within 20 working days or, in cases where the complainant
is an MSFW, 40 working days of a written request by the appropriate ES
office or State agency;
(4) The complainant exhausts all available options for review; or
(5) A final determination has been made by the enforcement agency to
which the complaint was referred.
(f) Reopening of case after resolution. If the complainant or the
complainant's authorized representative fails to respond pursuant to
paragraph (e)(3) of this section, the complainant or the complainant's
authorized representative may reopen the case within 1 year after the
SWA has closed the case.
[81 FR 56352, Aug. 19, 2016, as amended at 85 FR 629, Jan. 6, 2020; 88
FR 82731, Nov. 24, 2023]
Sec. 658.417 State hearings.
(a) The hearing described in Sec. 658.411(d)(5) must be held by
State hearing officials. A State hearing official may be any State
official authorized to hold hearings under State law. Examples of
hearing officials are referees in State unemployment compensation
hearings and officials of the State agency authorized to preside at
State administrative hearings.
(b) The State hearing official may decide to conduct hearings on
more than one complaint concurrently if they determine that the issues
are related or that the complaints will be processed more expeditiously
if conducted together.
(c) The State hearing official, upon the referral of a case for a
hearing, must:
(1) Notify all involved parties of the date, time, and place of the
hearing; and
(2) Reschedule the hearing, as appropriate.
(d) In conducting a hearing, the State hearing official must:
(1) Regulate the course of the hearing;
(2) Issue subpoenas if necessary, provided the official has the
authority to do so under State law;
(3) Ensure that all relevant issues are considered;
(4) Rule on the introduction of evidence and testimony; and
(5) Take all actions necessary to ensure an orderly proceeding.
(e) All testimony at the hearing must be recorded and may be
transcribed when appropriate.
(f) The parties must be afforded the opportunity to present,
examine, and cross-examine witnesses.
(g) The State hearing official may elicit testimony from witnesses,
but may not act as advocate for any party.
(h) The State hearing official must receive and include in the
record, documentary evidence offered by any party and accepted at the
hearing. Copies thereof must be made available by the party submitting
the document to other parties to the hearing upon request.
(i) Federal and State rules of evidence do not apply to hearings
conducted pursuant to this section; however rules or principles designed
to assure production of the most credible evidence available and to
subject testimony to test by cross-examination, must be applied where
reasonably necessary by the State hearing official. The State hearing
official may exclude irrelevant, immaterial, or unduly repetitious
evidence.
(j) The case record, or any portion thereof, must be available for
inspection and copying by any party at, prior to, or subsequent to the
hearing upon request. Special procedures may be used for disclosure of
medical and psychological records such as disclosure to a physician
designated by the individual.
(k) The State hearing official must, if feasible, resolve the
dispute at any time prior to the conclusion of the hearing.
(l) At the State hearing official's discretion, other appropriate
individuals, organizations, or associations may be permitted to
participate in the hearing as amicus curiae (friends of the court) with
respect to any legal or factual issues relevant to the complaint. Any
documents submitted by the amicus curiae must be included in the record.
(m) If the parties to the hearing are located in more than one State
or are
[[Page 12]]
located in the same State but access to the hearing location is
extremely inconvenient for one or more parties as determined by the
State hearing official, the hearing official must:
(1) Whenever possible, hold a single hearing at a location
convenient to all parties or their representatives wishing to appear and
present evidence, with all such parties and/or their representatives
present.
(2) If a hearing location cannot be established by the State hearing
official under paragraph (m)(1) of this section, the State hearing
official may conduct, with the consent of the parties, the hearing by a
telephone conference call from a State agency office. If the hearing is
conducted via telephone conference call the parties and their
representatives must have the option to participate in person or via
telephone.
(3) Where the State agency is not able, for any reason, to conduct a
telephonic hearing under paragraph (m)(2) of this section, the State
agencies in the States where the parties are located must take evidence
and hold the hearing in the same manner as used for appealed interstate
unemployment claims in those States, to the extent that such procedures
are consistent with this section.
[81 FR 56352, Aug. 19, 2016, as amended at 88 FR 82732, Nov. 24, 2023]
Sec. 658.418 Decision of the State hearing official.
(a) The State hearing official may:
(1) Rule that it lacks jurisdiction over the case;
(2) Rule that the complaint has been withdrawn properly in writing;
(3) Rule that reasonable cause exists to believe that the request
has been abandoned; or
(4) Render such other rulings as are appropriate to resolve the
issues in question.
However, the State hearing official does not have authority or
jurisdiction to consider the validity or constitutionality of the ES
regulations or of the Federal statutes under which they are promulgated.
(b) Based on the entire record, including the investigations and
determinations of the ES offices and State agencies and any evidence
provided at the hearing, the State hearing official must prepare a
written decision. The State hearing official must send a copy of the
decision stating the findings of fact and conclusions of law, and the
reasons therefor to the complainant, the respondent, entities serving as
amicus capacity (if any), the State agency, the Regional Administrator,
and the Solicitor of Labor, Attn: Associate Solicitor for Employment and
Training Legal Services, Department of Labor, Room N2101, 200
Constitution Avenue NW., Washington, DC 20210. The notification to the
complainant and respondent must be sent by certified mail or by other
legally viable means.
(c) All decisions of a State hearing official must be accompanied by
a written notice informing the parties (not including the Regional
Administrator, the Solicitor of Labor, or entities serving in an amicus
capacity) that they may appeal the judge's decision within 20 working
days of the certified date of receipt of the decision, and they may file
an appeal in writing with the Regional Administrator. The notice must
give the address of the Regional Administrator.
Sec. 658.419 Apparent violations.
(a) If an ES staff member observes, has reason to believe, or is in
receipt of information regarding an apparent violation, except as part
of a field check under Sec. 653.503 of this chapter, the staff member
must document the apparent violation and refer it to the ES Office
Manager, who must ensure the apparent violation is documented in the
Complaint System log, as described at Sec. 658.410.
(b) If the employer has filed a job order with the ES office within
the past 12 months, the ES office must attempt informal resolution
provided at Sec. 658.411.
(c) If the employer has not filed a job order with the ES office
during the past 12 months, the suspected violation of an employment-
related law must be referred to the appropriate enforcement agency in
writing.
(d) Apparent violations of nondiscrimination laws must be processed
[[Page 13]]
according to the procedures described in Sec. 658.411(c).
[81 FR 56352, Aug. 19, 2016, as amended at 85 FR 629, Jan. 6, 2020; 88
FR 82732, Nov. 24, 2023]
When a Complaint Rises to the Federal Level
Sec. 658.420 Responsibilities of the Employment and Training
Administration regional office.
(a) Each Regional Administrator must establish and maintain a
Complaint System within each ETA regional office.
(b) The Regional Administrator must designate Department of Labor
officials to process ES regulation-related complaints as follows:
(1) All complaints received at the ETA regional office under this
subpart that allege unlawful discrimination or reprisal for protected
activity in violation of nondiscrimination laws, such as those enforced
by the EEOC or CRC, or in violation of the Immigration and Nationality
Act's anti-discrimination provision found at 8 U.S.C. 1324b, must be
logged and immediately referred to the appropriate State-level E.O.
Officer(s).
(2) All complaints other than those described in paragraph (b)(1) of
this section must be assigned to a regional office official designated
by the Regional Administrator, provided that the regional office
official designated to process MSFW complaints must be the Regional
Monitor Advocate (RMA).
(c) Except for those complaints under paragraph (b)(1) of this
section, the Regional Administrator must designate Department of Labor
officials to process employment-related law complaints in accordance
with Sec. 658.422, provided that the regional official designated to
process MSFW employment-related law complaints must be the RMA. The RMA
must follow up monthly on all complaints filed by MSFWs including
complaints under paragraph (b)(1) of this section.
(d) The Regional Administrator must ensure that all complaints and
all related documents and correspondence are logged with a notation of
the nature of each item.
[81 FR 56352, Aug. 19, 2016, as amended 88 FR 82733, Nov. 24, 2023]
Sec. 658.421 Processing of Wagner-Peyser Act Employment Service
regulation-related complaints.
(a)(1) Except as provided below in paragraph (a)(2) of this section,
no complaint alleging a violation of the ES regulations may be processed
at the ETA regional office level until the complainant has exhausted the
SWA administrative remedies set forth at Sec. Sec. 658.411 through
658.418. If the Regional Administrator determines that a complaint has
been prematurely filed with an ETA regional office, the Regional
Administrator must inform the complainant within 10 working days in
writing that the complainant must first exhaust those remedies before
the complaint may be filed in the regional office. A copy of this letter
and a copy of the complaint also must be sent to the State
Administrator.
(2) If a complaint is submitted directly to the Regional
Administrator and if they determine that the nature and scope of a
complaint described in paragraph (a) of this section is such that the
time required to exhaust the administrative procedures at the SWA level
would adversely affect a significant number of individuals, the RA must
accept the complaint and take the following action:
(i) If the complaint is filed against an employer, the regional
office must process the complaint in a manner consistent with the
requirements imposed upon State agencies by Sec. Sec. 658.411 and
658.418. A hearing must be offered to the parties once the Regional
Administrator makes a determination on the complaint.
(ii) If the complaint is filed against a SWA, the regional office
must follow procedures established at Sec. 658.411(d).
(b) The ETA regional office is responsible for processing appeals of
determinations made on complaints at the SWA level. An appeal includes
any letter or other writing which the Regional Administrator reasonably
understands to be requesting review if it is received by the regional
office and signed by a party to the complaint.
(c)(1) Once the Regional Administrator receives a timely appeal,
they must request the complete SWA file, including the original
Complaint/Referral Form from the appropriate SWA.
[[Page 14]]
(2) The Regional Administrator must review the file in the case and
must determine within 10 business days whether any further investigation
or action is appropriate; however, if the Regional Administrator
determines that they need to request legal advice from the Office of the
Solicitor at the U.S. Department of Labor, then the Regional
Administrator is allowed 20 business days to make this determination.
(d) If the Regional Administrator determines that no further action
is warranted, the Regional Administrator will send their determination
in writing to the appellant within 5 days of the determination, with a
notification that the appellant may request a hearing before a
Department of Labor Administrative Law Judge (ALJ) by filing a hearing
request in writing with the Regional Administrator within 20 working
days of the appellant's receipt of the notification.
(e) If the Regional Administrator determines that further
investigation or other action is warranted, the Regional Administrator
must undertake such an investigation or other action necessary to
resolve the complaint.
(f) After taking the actions described in paragraph (e) of this
section, the Regional Administrator must either affirm, reverse, or
modify the decision of the State hearing official, and must notify each
party to the State hearing official's hearing or to whom the State
office determination was sent, notice of the determination and notify
the parties that they may appeal the determination to the Department of
Labor's Office of Administrative Law Judges within 20 business days of
the party's receipt of the notice.
(g) If the Regional Administrator finds reason to believe that a SWA
or one of its ES offices has violated ES regulations, the Regional
Administrator must follow the procedures set forth at subpart H of this
part.
[81 FR 56352, Aug. 19, 2016, as amended at 88 FR 82733, Nov. 24, 2023]
Sec. 658.422 Processing of employment-related law complaints by
the Regional Administrator.
(a) This section applies to all complaints submitted directly to the
Regional Administrator or their representative.
(b) Each complaint filed by an MSFW alleging violation(s) of
employment-related laws must be taken in writing, logged, and referred
to the appropriate enforcement agency for prompt action. If such a
complaint alleges a violation of nondiscrimination laws or reprisal for
protected activity, it must be referred to the appropriate State-level
E.O. Officer in accordance with Sec. 658.420(b)(1).
(c) Each complaint submitted by a non-MSFW alleging violation(s) of
employment-related laws must be logged and referred to the appropriate
enforcement agency for prompt action. If such a complaint alleges a
violation of nondiscrimination laws or reprisal for protected activity,
it must be referred to the appropriate State-level E.O. Officer in
accordance with Sec. 658.420(b)(1).
(d) Upon referring the complaint in accordance with paragraphs (b)
and (c) of this section, the regional official must inform the
complainant of the enforcement agency (and individual, if known) to
which the complaint was referred.
[81 FR 56352, Aug. 19, 2016, as amended at 88 FR 82733, Nov. 24, 2023]
Sec. 658.424 Proceedings before the Office of Administrative Law Judges.
(a) If a party requests a hearing pursuant to Sec. 658.421 or Sec.
658.707, the Regional Administrator must:
(1) Send the party requesting the hearing, and all other parties to
the prior State level hearing, a written notice (hard copy or
electronic) that the matter will be referred to the Office of
Administrative Law Judges for a hearing;
(2) Compile four hearing files (hard copy or electronic) containing
copies of all documents relevant to the case, indexed and compiled
chronologically; and
(3) Send simultaneously one hearing file to the Department of Labor
Chief Administrative Law Judge, 800 K Street NW., Suite 400N,
Washington, DC 20001-8002, one hearing file to the OWI Administrator,
and one hearing file to the Solicitor of Labor, Attn: Associate
Solicitor for Employment and
[[Page 15]]
Training Legal Services, and retain one hearing file.
(b) Proceedings under this section are governed by the rules of
practice and procedure at subpart A of 29 CFR part 18, Rule of Practice
and Procedure for Administrative Hearings before the Office of
Administrative Law Judges, except where otherwise specified in this
section or at Sec. 658.425.
(c) Upon receipt of a hearing file, the ALJ designated to the case
must notify the party requesting the hearing, all parties to the prior
State hearing official hearing (if any), the State agency, the Regional
Administrator, the OWI Administrator, and the Solicitor of Labor of the
receipt of the case. After conferring all the parties, the ALJ may
decide to make a determination on the record in lieu of scheduling a
hearing.
(d) The ALJ may decide to consolidate cases and conduct hearings on
more than one complaint concurrently if they determine that the issues
are related or that the complaints will be processed more expeditiously.
(e) If the parties to the hearing are located in more than one State
or are located in the same State but access to the hearing location is
extremely inconvenient for one or more parties as determined by the ALJ,
the ALJ must:
(1) Whenever possible, hold a single hearing, at a location
convenient to all parties or their representatives wishing to appear and
present evidence, with all such parties and/or their representatives
present.
(2) If a hearing location cannot be established by the ALJ at a
location pursuant to paragraph (e)(1) of this section, the ALJ may
conduct, with the consent of the parties, the hearing by a telephone
conference call. If the hearing is conducted via telephone conference
call the parties and their representatives must have the option to
participate in person or via telephone.
(3) Where the ALJ is unable, for any reason, to conduct a telephonic
hearing under paragraph (e)(2) of this section, the ALJ must confer with
the parties on how to proceed.
(f) Upon deciding to hold a hearing, the ALJ must notify all
involved parties of the date, time, and place of the hearing.
(g) The parties to the hearing must be afforded the opportunity to
present, examine, and cross-examine witnesses. The ALJ may elicit
testimony from witnesses, but may not act as advocate for any party. The
ALJ has the authority to issue subpoenas.
(h) The ALJ must receive, and make part of the record, documentary
evidence offered by any party and accepted at the hearing, provided that
copies of such evidence is provided to the other parties to the
proceeding prior to the hearing at the time required by the ALJ.
(i) Technical rules of evidence do not apply to hearings conducted
pursuant to this part, but rules or principles designed to assure
production of the most credible evidence available and to subject
testimony to test by cross-examination must be applied where reasonably
necessary by the ALJ conducting the hearing. The ALJ may exclude
irrelevant, immaterial, or unduly repetitious evidence.
(j) The case record, or any portion thereof, must be available for
inspection and copying by any party to the hearing at, prior to, or
subsequent to the hearing upon request. Special procedures may be used
for disclosure of medical and psychological records such as disclosure
to a physician designated by the individual concerned.
(k) The ALJ must, if feasible, encourage resolution of the dispute
by conciliation at any time prior to the conclusion of the hearing.
[81 FR 56352, Aug. 19, 2016, as amended at 88 82733, Nov. 24, 2023]
Sec. 658.425 Decision of Department of Labor Administrative Law Judge.
(a) The ALJ may:
(1) Rule that they lack jurisdiction over the case:
(2) Rule that the appeal has been withdrawn, with the written
consent of all parties;
(3) Rule that reasonable cause exists to believe that the appeal has
been abandoned; or
(4) Render such other rulings as are appropriate to the issues in
question. However, the ALJ does not have jurisdiction to consider the
validity or constitutionality of the ES regulations or
[[Page 16]]
of the Federal statutes under which they are promulgated.
(b) Based on the entire record, including any legal briefs, the
record before the State agency, the investigation (if any) and
determination of the Regional Administrator, and evidence provided at
the hearing, the ALJ must prepare a written decision. The ALJ must send
a copy of the decision stating the findings of fact and conclusions of
law to the parties to the hearing, including the State agency, the
Regional Administrator, the OWI Administrator, and the Solicitor, and to
entities filing amicus briefs (if any).
(c) The decision of the ALJ serves as the final decision of the
Secretary.
[81 FR 56352, Aug. 19, 2016, as amended at 88 FR 82733, Nov. 24, 2023]
Sec. 658.426 Complaints against the United States Employment Service.
(a) Complaints alleging that an ETA regional office or the National
Office has violated ES regulations must be mailed to the Assistant
Secretary for Employment and Training, U.S. Department of Labor,
Washington, DC 20210. Such complaints must include:
(1) A specific allegation of the violation;
(2) The date of the incident;
(3) Location of the incident;
(4) The individual alleged to have committed the violation; and
(5) Any other relevant information available to the complainant.
(b) The Assistant Secretary or the Regional Administrator as
designated must make a determination and respond to the complainant
after investigation of the complaint.
Sec. 658.427 Severability.
Should a court hold any portion of any provision of this part to be
invalid, the provision will be construed so as to continue to give the
maximum effect to the provision permitted by law, unless such holding is
one of total invalidity or unenforceability, in which event the
provision or subprovision will be severable from this part and will not
affect the remainder thereof.
[88 FR 82733, Nov. 24, 2023]
Subpart F_Discontinuation of Services to Employers by the Wagner-Peyser
Act Employment Service
Sec. 658.500 Scope and purpose of subpart.
This subpart contains the regulations governing the discontinuation
of services provided pursuant part 653 of this chapter to employers by
the ETA, including SWAs.
Sec. 658.501 Basis for discontinuation of services.
(a) SWA officials must initiate procedures for discontinuation of
services to employers who:
(1) Submit and refuse to alter or withdraw job orders containing
specifications which are contrary to employment-related laws;
(2) Submit job orders and refuse to provide assurances, in
accordance with the Agricultural Recruitment System for U.S. Workers at
part 653, subpart F, of this chapter, that the jobs offered are in
compliance with employment-related laws, or to withdraw such job orders;
(3) Are found through field checks or otherwise to have either
misrepresented the terms or conditions of employment specified on job
orders or failed to comply fully with assurances made on job orders;
(4) Are found by a final determination by an appropriate enforcement
agency to have violated any employment-related laws and notification of
this final determination has been provided to the Department or the SWA
by that enforcement agency;
(5) Are found to have violated ES regulations pursuant to Sec.
658.411;
(6) Refuse to accept qualified workers referred through the
clearance system;
(7) Refuse to cooperate in the conduct of field checks conducted
pursuant to Sec. 653.503 of this chapter; or
(8) Repeatedly cause the initiation of the procedures for
discontinuation of services pursuant to paragraphs (a)(1) through (7) of
this section.
[[Page 17]]
(b) SWA officials may discontinue services immediately if, in the
judgment of the State Administrator, exhaustion of the administrative
procedures set forth in this subpart in paragraphs (a)(1) through (7) of
this section would cause substantial harm to a significant number of
workers. In such instances, procedures at Sec. Sec. 658.503 and 658.504
must be followed.
(c) If it comes to the attention of an ES office or a SWA that an
employer participating in the ES may not have complied with the terms of
its temporary labor certification, under, for example the H-2A and H-2B
visa programs, SWA officials must engage in the procedures for
discontinuation of services to employers pursuant to paragraphs (a)(1)
through (8) of this section and simultaneously notify the Chicago
National Processing Center (CNPC) of the alleged non-compliance for
investigation and consideration of ineligibility pursuant to Sec.
655.184 or Sec. 655.73 of this chapter respectively for subsequent
temporary labor certification.
[81 FR 56352, Aug. 19, 2016, as amended at 85 FR 629, Jan. 6, 2020]
Sec. 658.502 Notification to employers.
(a) The SWA must notify the employer in writing that it intends to
discontinue the provision of employment services pursuant to this part
and parts 652, 653, and 654 of this chapter, and the reason therefore.
(1) Where the decision is based on submittal and refusal to alter or
to withdraw job orders containing specifications contrary to employment-
related laws, the SWA must specify the date the order was submitted, the
job order involved, the specifications contrary to employment-related
laws and the laws involved. The SWA must notify the employer in writing
that all employment services will be terminated in 20 working days
unless the employer within that time:
(i) Provides adequate evidence that the specifications are not
contrary to employment-related laws; or
(ii) Withdraws the specifications and resubmits the job order in
compliance with all employment-related laws; or
(iii) If the job is no longer available, makes assurances that all
future job orders submitted will be in compliance with all employment-
related laws; or
(iv) Requests a hearing from the SWA pursuant to Sec. 658.417.
(2) Where the decision is based on the employer's submittal of an
order and refusal to provide assurances that the job is in compliance
with employment-related laws or to withdraw the order, the SWA must
specify the date the order was submitted, the job order involved, and
the assurances involved. The employer must be notified that all
employment services will be terminated within 20 working days unless the
employer within that time:
(i) Resubmits the order with the appropriate assurances; or
(ii) If the job is no longer available, make assurances that all
future job orders submitted will contain all necessary assurances that
the job offered is in compliance with employment-related laws; or
(iii) Requests a hearing from the SWA pursuant to Sec. 658.417.
(3) Where the decision is based on a finding that the employer has
misrepresented the terms or conditions of employment specified on job
orders or failed to comply fully with assurances made on job orders, the
SWA must specify the basis for that determination. The employer must be
notified that all employment services will be terminated in 20 working
days unless the employer within that time:
(i) Provides adequate evidence that terms and conditions of
employment were not misrepresented; or
(ii) Provides adequate evidence that there was full compliance with
the assurances made on the job orders; or
(iii) Provides resolution of a complaint which is satisfactory to a
complainant referred by the ES; and
(iv) Provides adequate assurance that specifications on future
orders will accurately represent the terms and conditions of employment
and that there will be full compliance with all job order assurances; or
(v) Requests a hearing from the SWA pursuant to Sec. 658.417.
(4) Where the decision is based on a final determination by an
enforcement agency, the SWA must specify the enforcement agency's
findings of facts and conclusions of law. The employer
[[Page 18]]
must be notified that all employment services will be terminated in 20
working days unless the employer within that time:
(i) Provides adequate evidence that the enforcement agency has
reversed its ruling and that the employer did not violate employment-
related laws; or
(ii) Provides adequate evidence that the appropriate fines have been
paid and/or appropriate restitution has been made; and
(iii) Provides assurances that any policies, procedures, or
conditions responsible for the violation have been corrected and the
same or similar violations are not likely to occur in the future.
(5) Where the decision is based on a finding of a violation of ES
regulations under Sec. 658.411, the SWA must specify the finding. The
employer must be notified that all employment services will be
terminated in 20 working days unless the employer within that time:
(i) Provides adequate evidence that the employer did not violate ES
regulations; or
(ii) Provides adequate evidence that appropriate restitution has
been made or remedial action taken; and
(iii) Provides assurances that any policies, procedures, or
conditions responsible for the violation have been corrected and the
same or similar violations are not likely to occur in the future; or
(iv) Requests a hearing from the SWA pursuant to Sec. 658.417.
(6) Where the decision is based on an employer's failure to accept
qualified workers referred through the clearance system, the SWA must
specify the workers referred and not accepted. The employer must be
notified that all employment services will be terminated in 20 working
days unless the employer within that time:
(i) Provides adequate evidence that the workers were accepted; or
(ii) Provides adequate evidence that the workers were not available
to accept the job; or
(iii) Provides adequate evidence that the workers were not
qualified; and
(iv) Provides adequate assurances that qualified workers referred in
the future will be accepted; or
(v) Requests a hearing from the SWA pursuant to Sec. 658.417.
(7) Where the decision is based on lack of cooperation in the
conduct of field checks, the SWA must specify the lack of cooperation.
The employer must be notified that all employment services will be
terminated in 20 working days unless the employer within that time:
(i) Provides adequate evidence that he/she did cooperate; or
(ii) Cooperates immediately in the conduct of field checks; and
(iii) Provides assurances that he/she will cooperate in future field
checks in further activity; or
(iv) Requests a hearing from the SWA pursuant to Sec. 658.417.
(b) If the employer chooses to respond pursuant to this section by
providing documentary evidence or assurances, he/she must at the same
time request a hearing if such hearing is desired in the event that the
SWA does not accept the documentary evidence or assurances as adequate.
(c) Where the decision is based on repeated initiation of procedures
for discontinuation of services, the employer must be notified that
services have been terminated.
(d) If the employer makes a timely request for a hearing, in
accordance with this section, the SWA must follow procedures set forth
at Sec. 658.411 and notify the complainant whenever the discontinuation
of services is based on a complaint pursuant to Sec. 658.411.
Sec. 658.503 Discontinuation of services.
(a) If the employer does not provide a satisfactory response in
accordance with Sec. 658.502, within 20 working days, or has not
requested a hearing, the SWA must immediately terminate services to the
employer.
(b) If services are discontinued to an employer subject to Federal
Contractor Job Listing Requirements, the SWA must notify the ETA
regional office immediately.
Sec. 658.504 Reinstatement of services.
(a) Services may be reinstated to an employer after discontinuation
under Sec. 658.503(a) and (b), if:
[[Page 19]]
(1) The State is ordered to do so by a Federal ALJ Judge or Regional
Administrator; or
(2)(i) The employer provides adequate evidence that any policies,
procedures or conditions responsible for the previous discontinuation of
services have been corrected and that the same or similar circumstances
are not likely to occur in the future; and
(ii) The employer provides adequate evidence that he/she has
responded adequately to any findings of an enforcement agency, SWA, or
ETA, including restitution to the complainant and the payment of any
fines, which were the basis of the discontinuation of services.
(b) The SWA must notify the employer requesting reinstatement within
20 working days whether his/her request has been granted. If the State
denies the request for reinstatement, the basis for the denial must be
specified and the employer must be notified that he/she may request a
hearing within 20 working days.
(c) If the employer makes a timely request for a hearing, the SWA
must follow the procedures set forth at Sec. 658.417.
(d) The SWA must reinstate services to an employer if ordered to do
so by a State hearing official, Regional Administrator, or Federal ALJ
as a result of a hearing offered pursuant to paragraph (c) of this
section.
Subpart G_Review and Assessment of State Workforce Agency Compliance
With Employment Service Regulations
Sec. 658.600 Scope and purpose of subpart.
This subpart sets forth the regulations governing review and
assessment of State Workforce Agency (SWA) compliance with the ES
regulations at this part and parts 651, 652, 653, and 654 of this
chapter. All recordkeeping and reporting requirements contained in this
part and part 653 of this chapter have been approved by the Office of
Management and Budget as required by the Paperwork Reduction Act of
1980.
Sec. 658.601 State Workforce Agency responsibility.
(a) Each SWA must establish and maintain a self-appraisal system for
ES operations to determine success in reaching goals and to correct
deficiencies in performance. The self-appraisal system must include
numerical (quantitative) appraisal and non-numerical (qualitative)
appraisal.
(1) Numerical appraisal at the ES office level must be conducted as
follows:
(i) Performance must be measured on a quarterly-basis against
planned service levels as stated in the Unified or Combined State Plan
(``State Plan''). The State Plan must be consistent with numerical goals
contained in ES office plans.
(ii) To appraise numerical activities/indicators, actual results as
shown on the Department's ETA Form 9172, or any successor report
required by the Department must be compared to planned levels.
Differences between achievement and plan levels must be identified.
(iii) When the numerical appraisal of required activities/indicators
identifies significant differences from planned levels, additional
analysis must be conducted to isolate possible contributing factors.
This data analysis must include, as appropriate, comparisons to past
performance, attainment of State Plan goals and consideration of
pertinent non-numerical factors.
(iv) Results of ES office numerical reviews must be documented and
significant deficiencies identified. A corrective action plan as
described in paragraph (a)(6) of this section must be developed to
address these deficiencies.
(v) The result of ES office appraisal, including corrective action
plans, must be communicated in writing to the next higher level of
authority for review. This review must cover adequacy of analysis,
appropriateness of corrective actions, and need for higher level
involvement. When this review is conducted at an area or district
office, a report describing ES office performance within the area or
district jurisdiction must be communicated to the SWA on a quarterly
basis.
(2) Numerical appraisal at the SWA level must be conducted as
follows:
[[Page 20]]
(i) Performance must be measured on a quarterly basis against
planned service levels as stated in the State Plan. The State Plan must
be consistent with numerical goals contained in ES office plans.
(ii) To appraise these key numerical activities/indicators, actual
results as shown on ETA Form 9172, or any successor report required by
the Department must be compared to planned levels. Differences between
achievement and plan levels must be identified.
(iii) The SWA must review statewide data and performance against
planned service levels as stated in the State Plan on at least a
quarterly basis to identify significant statewide deficiencies and to
determine the need for additional analysis, including identification of
trends, comparisons to past performance, and attainment of State Plan
goals.
(iv) Results of numerical reviews must be documented and significant
deficiencies identified. A corrective action plan as described in
paragraph (a)(5) of this section must be developed to address these
deficiencies. These plans must be submitted to the ETA Regional Office
as part of the periodic performance process described at Sec.
658.603(d)(2).
(3) Non-numerical (qualitative) appraisal of ES office activities
must be conducted at least annually as follows:
(i) Each ES office must assess the quality of its services to
applicants, employers, and the community and its compliance with Federal
regulations.
(ii) At a minimum, non-numerical review must include an assessment
of the following factors:
(A) Appropriateness of services provided to participants and
employers;
(B) Timely delivery of services to participants and employers;
(C) Staff responsiveness to individual participants and employer
needs;
(D) Thoroughness and accuracy of documents prepared in the course of
service delivery; and
(E) Effectiveness of ES interface with external organizations, such
as other ETA-funded programs, community groups, etc.
(iii) Non-numerical review methods must include:
(A) Observation of processes;
(B) Review of documents used in service provisions; and
(C) Solicitation of input from applicants, employers, and the
community.
(iv) The result of non-numerical reviews must be documented and
deficiencies identified. A corrective action plan addressing these
deficiencies as described in paragraph (a)(6) of this section must be
developed.
(v) The result of ES office non-numerical appraisal, including
corrective actions, must be communicated in writing to the next higher
level of authority for review. This review must cover thoroughness and
adequacy of ES office appraisal, appropriateness of corrective actions,
and need for higher level involvement. When this review is conducted at
an area or district level, a report summarizing local ES office
performance within that jurisdiction must be communicated to the SWA on
an annual basis.
(4) As part of its oversight responsibilities, the SWA must conduct
onsite reviews in those ES offices which show continuing internal
problems or deficiencies in performance as indicated by such sources as
data analysis, non-numerical appraisal, or other sources of information.
(5) Non-numerical (qualitative) review of SWA ES activities must be
conducted as follows:
(i) SWA operations must be assessed annually to determine compliance
with Federal regulations.
(ii) Results of non-numerical reviews must be documented and
deficiencies identified. A corrective action plan addressing these
deficiencies must be developed.
(6) Corrective action plans developed to address deficiencies
uncovered at any administrative level within the State as a result of
the self-appraisal process must include:
(i) Specific descriptions of the type of action to be taken, the
time frame involved, and the assignment of responsibility.
(ii) Provision for the delivery of technical assistance as needed.
(iii) A plan to conduct follow-up on a timely basis to determine if
action taken to correct the deficiencies has been effective.
[[Page 21]]
(7)(i) The provisions of the ES regulations which require numerical
and non-numerical assessment of service to special applicant groups
(e.g., services to veterans at 20 CFR part 1001--Services for Veterans
and services to MSFWs at this part and part 653 of this chapter), are
supplementary to the provisions of this section.
(ii) Each State Administrator and ES office manager must ensure
their staff know and carry out ES regulations, including regulations on
performance standards and program emphases, and any corrective action
plans imposed by the SWA or by the Department.
(iii) Each State Administrator must ensure the SWA complies with its
approved State Plan.
(iv) Each State Administrator must ensure to the maximum extent
feasible the accuracy of data entered by the SWA into Department-
required management information systems. Each SWA must establish and
maintain a data validation system pursuant to Department instructions.
The system must review every local ES office at least once every 4
years. The system must include the validation of time distribution
reports and the review of data gathering procedures.
(b) [Reserved]
[81 FR 56352, Aug. 19, 2016, as amended at 85 FR 629, Jan. 6, 2020]
Sec. 658.602 Employment and Training Administration National Office
responsibility.
The ETA National Office must:
(a) Monitor ETA Regional Offices' operations under ES regulations;
(b) From time to time, conduct such special reviews and audits as
necessary to monitor ETA regional office and SWA compliance with ES
regulations;
(c) Offer technical assistance to the ETA regional offices and SWAs
in carrying out ES regulations and programs;
(d) Have report validation surveys conducted in support of resource
allocations; and
(e) Develop tools and techniques for reviewing and assessing SWA
performance and compliance with ES regulations.
(f) ETA must appoint a National Monitor Advocate (NMA), who must
devote full time to the duties set forth in this subpart. The NMA must:
(1) Review the effective functioning of the Regional Monitor
Advocates (RMAs) and SMAs;
(2) Review the performance of SWAs in providing the full range of ES
services to MSFWs;
(3) Take steps to resolve or refer ES-related problems of MSFWs
which come to their attention;
(4) Take steps to refer non-ES-related problems of MSFWs which come
to their attention;
(5) Recommend to the Administrator changes in policy toward MSFWs;
and
(6) Serve as an advocate to improve services for MSFWs within the ES
system. The NMA must be a member of the National Farm Labor Coordinated
Enforcement Staff Level Working Committee and other Occupational Safety
and Health Administration (OSHA) and Wage and Hour Division (WHD) task
forces, and other committees as appropriate.
(g) The NMA must be appointed by the Office of Workforce Investment
Administrator (Administrator) after informing farmworker organizations
and other organizations with expertise concerning MSFWs of the opening
and encouraging them to refer qualified applicants to apply through the
Federal merit system. Among qualified candidates, determined through
merit systems procedures, individuals must be sought who meet the
criteria used in the selection of the SMAs, as provided in SWA self-
monitoring requirements at Sec. 653.108(a) of this chapter.
(h) The NMA must be assigned staff necessary to fulfill effectively
all the responsibilities set forth in this subpart.
(i) The NMA must submit the Annual Report to the OWI Administrator,
the ETA Assistant Secretary, and the National Farm Labor Coordinated
Enforcement Committee covering the matters set forth in this subpart.
(j) The NMA must monitor and assess SWA compliance with ES
regulations affecting MSFWs on a continuing basis. Their assessment must
consider:
(1) Information from RMAs and SMAs;
(2) Program performance data, including the service indicators;
[[Page 22]]
(3) Periodic reports from regional offices;
(4) All Federal on-site reviews;
(5) Selected State on-site reviews;
(6) Other relevant reports prepared by the ES;
(7) Information received from farmworker organizations and
employers; and
(8) Their personal observations from visits to SWAs, ES offices,
agricultural work sites, and migrant camps. In the Annual Report, the
NMA must include both a quantitative and qualitative analysis of their
findings and the implementation of their recommendations by State and
Federal officials, and must address the information obtained from all of
the foregoing sources.
(k) The NMA must review the activities of the State/Federal
monitoring system as it applies to services to MSFWs and the Complaint
System including the effectiveness of the regional monitoring function
in each region and must recommend any appropriate changes in the
operation of the system. The NMA's findings and recommendations must be
fully set forth in the Annual Report.
(l) If the NMA finds the effectiveness of any RMA has been
substantially impeded by the Regional Administrator or other regional
office official, they must, if unable to resolve such problems
informally, report and recommend appropriate actions directly to the OWI
Administrator. If the NMA receives information that the effectiveness of
any SMA has been substantially impeded by the State Administrator, a
State or Federal ES official, or other ES staff, they must, in the
absence of a satisfactory informal resolution at the regional level,
report and recommend appropriate actions directly to the OWI
Administrator.
(m) The NMA must be informed of all proposed changes in policy and
practice within the ES, including ES regulations, which may affect the
delivery of services to MSFWs. The NMA must advise the OWI Administrator
concerning all such proposed changes which may adversely affect MSFWs.
The NMA must propose directly to the OWI Administrator changes in ES
policy and administration which may substantially improve the delivery
of services to MSFWs. They also must recommend changes in the funding of
SWAs and/or adjustment or reallocation of the discretionary portions of
funding formulae.
(n) The NMA must participate in the review and assessment activities
required in this section and Sec. Sec. 658.700 through 658.711. As part
of such participation, the NMA, or if they are unable to participate, an
RMA must accompany the National Office review team on National Office
on-site reviews. The NMA must engage in the following activities during
each State on-site review:
(1) They must accompany selected outreach staff on their field
visits.
(2) They must participate in field check(s) of migrant camps or work
site(s) where MSFWs have been placed on inter or intrastate clearance
orders.
(3) They must contact local WIOA sec. 167 National Farmworker Jobs
Program grantees or other farmworker organizations as part of the on-
site review and discuss with representatives of these organizations
current trends and any other pertinent information concerning MSFWs.
(4) They must meet with the SMA and discuss the full range of the ES
services to MSFWs, including monitoring and the Complaint System.
(o) In addition to the duties specified in paragraph (f) of this
section, the NMA each year during the harvest season must visit the four
States with the highest level of MSFW activity during the prior fiscal
year, if they are not scheduled for a National Office on-site review
during the current fiscal year, and must:
(1) Meet with the SMA and other ES staff to discuss MSFW service
delivery; and
(2) Contact representatives of MSFW organizations and interested
employer organizations to obtain information concerning ES delivery and
coordination with other agencies.
(p) The NMA must perform duties specified in Sec. Sec. 658.700
through 765.711. As part of this function, they must monitor the
performance of regional offices in imposing corrective action. The NMA
must report any deficiencies in performance to the Administrator.
[[Page 23]]
(q) The NMA must establish routine and regular contacts with WIOA
sec. 167 National Farmworker Jobs Program grantees, other farmworker
organizations and agricultural employers and/or employer organizations.
The NMA must attend conferences or meetings of these groups wherever
possible and must report to the Administrator and the National Farm
Labor Coordinated Enforcement Committee on these contacts when
appropriate. The NMA must include in the Annual Report recommendations
about how the Department might better coordinate ES and WIOA sec. 167
National Farmworker Jobs Program services as they pertain to MSFWs.
(r) In the event that any SMA or RMA, enforcement agency, or MSFW
group refers a matter to the NMA which requires emergency action, the
NMA must assist them in obtaining action by appropriate agencies and
staff, inform the originating party of the action taken, and, upon
request, provide written confirmation.
(s) Through all the mechanisms provided in this subpart, the NMA
must aggressively seek to ascertain and remedy, if possible, systemic
deficiencies in the provisions of ES services and protections afforded
by these regulations to MSFWs. The NMA must:
(1) Use the regular reports on complaints submitted by SWAs and ETA
regional offices to assess the adequacy of these systems and to
determine the existence of systemic deficiencies.
(2) Provide technical assistance to ETA regional office and ES staff
for administering the Complaint System, and any other ES services as
appropriate.
(3) Recommend to the Regional Administrator specific instructions
for action by regional office staff to correct any ES-related systemic
deficiencies. Prior to any ETA review of regional office operations
concerning ES services to MSFWs, the NMA must provide to the Regional
Administrator a brief summary of ES-related services to MSFWs in that
region and their recommendations for incorporation in the regional
review materials as the Regional Administrator and ETA reviewing
organization deem appropriate.
(4) Recommend to the National Farm Labor Coordinated Enforcement
Committee specific instructions for action by WHD and OSHA regional
office staff to correct any non-ES-related systemic deficiencies of
which he/she is aware.
[81 FR 56352, Aug. 19, 2016, as amended at 85 FR 629, Jan. 6, 2020; 88
FR 82733, Nov. 24, 2023]
Sec. 658.603 Employment and Training Administration regional office
responsibility.
(a) The Regional Administrator must have responsibility for the
regular review and assessment of SWA performance and compliance with ES
regulations.
(b) The Regional Administrator must participate with the National
Office staff in reviewing and approving the State Plan for the SWAs
within the region. In reviewing the State Plans the Regional
Administrator and appropriate National Office staff must consider
relevant factors including the following:
(1) State Workforce Agency compliance with ES regulations;
(2) State Workforce Agency performance against the goals and
objectives established in the previous State Plan;
(3) The effect which economic conditions and other external factors
considered by the ETA in the resource allocation process may have had or
are expected to have on the SWA's performance;
(4) SWA adherence to national program emphasis; and
(5) The adequacy and appropriateness of the State Plan for carrying
out ES programs.
(c) The Regional Administrator must assess the overall performance
of SWAs on an ongoing basis through desk reviews and the use of required
reporting systems and other available information.
(d) As appropriate, Regional Administrators must conduct or have
conducted:
(1) Comprehensive on-site reviews of SWAs and their offices to
review SWA organization, management, and program operations;
(2) Periodic performance reviews of SWA operation of ES programs to
measure actual performance against the State Plan, past performance, the
performance of other SWAs, etc.;
[[Page 24]]
(3) Audits of SWA programs to review their program activity and to
assess whether the expenditure of grant funds has been in accordance
with the approved budget. Regional Administrators also may conduct
audits through other agencies or organizations or may require the SWA to
have audits conducted;
(4) Validations of data entered into management information systems
to assess:
(i) The accuracy of data entered by the SWAs into the management
information system;
(ii) Whether the SWAs' data validating and reviewing procedures
conform to Department instructions; and
(iii) Whether SWAs have implemented any corrective action plans
required by the Department to remedy deficiencies in their validation
programs;
(5) Technical assistance programs to assist SWAs in carrying out ES
regulations and programs;
(6) Reviews to assess whether the SWA has complied with corrective
action plans imposed by the Department or by the SWA itself; and
(7) Unannounced field checks of a sample of agricultural work sites
to which ES placements have been made through the clearance system to
determine and document whether wages, hours, and working and housing
conditions are as specified on the clearance order. If regional office
staff find reason to believe that conditions vary from clearance order
specifications, findings must be documented on the Complaint/Apparent
Violation Referral Form and provided to the State Workforce Agency to be
processed as an apparent violation under Sec. 658.419.
(e) The Regional Administrator must provide technical assistance to
SWAs to assist them in carrying out ES regulations and programs.
(f) The Regional Administrator must appoint a RMA who must carry out
the duties set forth in this subpart. The RMA must:
(1) Review the effective functioning of the SMAs in their region;
(2) Review the performance of SWAs in providing the full range of ES
services to MSFWs;
(3) Take steps to resolve ES-related problems of MSFWs which come to
their attention;
(4) Recommend to the Regional Administrator changes in policy
towards MSFWs;
(5) Review the operation of the Complaint System; and
(6) Serve as an advocate to improve service for MSFWs within the ES.
The RMA must be a member of the Regional Farm Labor Coordinated
Enforcement Committee.
(g) The RMA must be appointed by the Regional Administrator after
informing farmworker organizations and other organizations in the region
with expertise concerning MSFWs of the opening and encouraging them to
refer qualified applicants to apply through the Federal merit system.
The RMA must have direct personal access to the Regional Administrator
wherever they find it necessary. Among qualified candidates, individuals
must be sought who meet the criteria used in the selection of the SMAs,
as provided in Sec. 653.108(b) of this chapter.
(h) The Regional Administrator must ensure that staff necessary to
fulfill effectively all the regional office responsibilities set forth
in this section are assigned.
(i) The RMA must participate in training sessions including those
offered by the National Office and those necessary to maintain
competency and enhance their understanding of issues farmworkers face
(including trainings offered by OSHA, WHD, EEOC, CRC, and other
organizations offering farmworker-related information).
(j) At the regional level, the RMA must have primary responsibility
for:
(1) Monitoring the effectiveness of the Complaint System set forth
at subpart E of this part;
(2) Apprising appropriate State and ETA officials of deficiencies in
the Complaint System; and
(3) Providing technical assistance to SMAs in the region.
(k) At the ETA regional level, the RMA must have primary
responsibility for ensuring SWA compliance with ES regulations as it
pertains to services to MSFWs is monitored by the regional office. They
must independently assess on a continuing basis the provision of
[[Page 25]]
ES services to MSFWs, seeking out and using:
(1) Information from SMAs, including all reports and other
documents;
(2) Program performance data;
(3) The periodic and other required reports from SWAs;
(4) Federal on-site reviews;
(5) Other reports prepared by the National Office;
(6) Information received from farmworker organizations and
employers; and
(7) Any other pertinent information which comes to their attention
from any possible source.
(8) In addition, the RMA must consider their personal observations
from visits to ES offices, agricultural work sites, and migrant camps.
(l) The RMA must assist the Regional Administrator and other line
officials in applying appropriate corrective and remedial actions to
State agencies.
(m) The Regional Administrator's quarterly report to the National
Office must include the RMA's summary of their independent assessment as
required in paragraph (f)(5) of this section. The fourth quarter summary
must include an Annual Summary from the region. The summary also must
include both a quantitative and a qualitative analysis of their reviews
and must address all the matters with respect to which they have
responsibilities under these regulations.
(n) The RMA must review the activities and performance of the SMAs
and the State monitoring system in the region, and must recommend any
appropriate changes in the operation of the system to the Regional
Administrator. The RMA's review must include a determination whether the
SMA:
(1) Does not have adequate access to information;
(2) Is being impeded in fulfilling their duties; or
(3) Is making recommendations that are being consistently ignored by
SWA officials. If the RMA believes that the effectiveness of any SMA has
been substantially impeded by the State Administrator, other State
agency officials, any Federal officials, or other ES staff, the RMA must
report and recommend appropriate actions to the Regional Administrator.
Copies of the recommendations must be provided to the NMA electronically
or in hard copy.
(o)(1) The RMA must be informed of all proposed changes in policy
and practice within the ES, including ES regulations, which may affect
the delivery of services to MSFWs. They must advise the Regional
Administrator on all such proposed changes which, in their opinion, may
adversely affect MSFWs or which may substantially improve the delivery
of services to MSFWs.
(2) The RMA also may recommend changes in ES policy or regulations,
as well as changes in the funding of State Workforce Agencies and/or
adjustments of reallocation of the discretionary portions of funding
formulae as they pertain to MSFWs.
(p) The RMA must participate in the review and assessment activities
required in this section and Sec. Sec. 658.700 through 658.711. The
RMA, an assistant, or another RMA must participate in National Office
and regional office on-site statewide reviews of ES services to MSFWs in
States in the region. The RMA must engage in the following activities in
the course of participating in an on-site SWA review:
(1) Accompany selected outreach staff on their field visits;
(2) Participate in a field check of migrant camps or work sites
where MSFWs have been placed on intrastate or interstate clearance
orders;
(3) Contact local WIOA sec. 167 National Farmworker Jobs Program
grantees or other farmworker organizations as part of the on-site
review, and must discuss with representatives of these organizations
perceived trends, and/or other relevant information concerning MSFWs in
the area; and
(4) Meet with the SMA and discuss the full range of the ES services
to MSFWs, including monitoring and the Complaint System.
(q) During the calendar quarter preceding the time of peak MSFW
activity in each State, the RMA must meet with the SMA and must review
in detail the State Workforce Agency's capability for providing the full
range of services to MSFWs as required by ES
[[Page 26]]
regulations, during the upcoming harvest season. The RMA must offer
technical assistance and recommend to the SWA and/or the Regional
Administrator any changes in State policy or practice that the RMA finds
necessary.
(r) As appropriate, each year during the peak harvest season, the
RMA must visit each State in the region not scheduled for an onsite
review during that fiscal year and must:
(1) Meet with the SMA and other ES staff to discuss MSFW service
delivery; and
(2) Contact representatives of MSFW organizations to obtain
information concerning ES delivery and coordination with other agencies
and interested employer organizations.
(s) The RMA must initiate and maintain regular and personal
contacts, including informal contacts in addition to those specifically
required by these regulations, with SMAs in the region. In addition, the
RMA must have personal and regular contact with the NMA. The RMA also
must establish routine and regular contacts with WIOA sec. 167 National
Farmworker Jobs Program grantees, other farmworker organizations and
agricultural employers and/or employer organizations in the RMA's
region. The RMA must attend conferences or meetings of these groups
wherever possible and must report to the Regional Administrator and the
Regional Farm Labor Coordinated Enforcement Committee on these contacts
when appropriate. The RMA also must make recommendations as to how the
Department might better coordinate ES and WIOA sec. 167 National
Farmworker Jobs Program services to MSFWs.
(t) The RMA must attend MSFW-related public meeting(s) conducted in
the region, as appropriate. Following such meetings or hearings, the RMA
must take such steps or make such recommendations to the Regional
Administrator, as the RMA deems necessary to remedy problem(s) or
condition(s) identified or described therein.
(u) The RMA must attempt to achieve regional solutions to any
problems, deficiencies, or improper practices concerning services to
MSFWs which are regional in scope. Further, the RMA must recommend
policies, offer technical assistance, or take any other necessary steps
as they deem desirable or appropriate on a regional, rather than State-
by-State, basis to promote region-wide improvement in the delivery of ES
services to MSFWs. The RMA must facilitate region-wide coordination and
communication regarding provision of ES services to MSFWs among SMAs,
State Administrators, and Federal ETA officials to the greatest extent
possible. In the event that any SWA or other RMA, enforcement agency, or
MSFW group refers a matter to the RMA which requires emergency action,
the RMA must assist them in obtaining action by appropriate agencies and
staff, inform the originating party of the action taken, and, upon
request, provide written confirmation.
(v) The RMA must initiate and maintain such contacts as they deem
necessary with RMAs in other regions to seek to resolve problems
concerning MSFWs who work, live, or travel through the region. The RMA
must recommend to the Regional Administrator and/or the National Office
inter-regional cooperation on any particular matter, problem, or policy
with respect to which inter-regional action is desirable.
(w) The RMA must establish regular contacts with the regional
agricultural coordinators from WHD and OSHA and any other regional staff
from other Federal enforcement agencies and must establish contacts with
the staff of other Department agencies represented on the Regional Farm
Labor Coordinated Enforcement Committee and to the extent necessary, on
other pertinent task forces or committees.
(x) The RMA must participate in the regional reviews of the State
Plans, and must comment to the Regional Administrator as to the SWA
compliance with the ES regulations as they pertain to services to MSFWs,
including the staffing of ES offices.
[81 FR 56352, Aug. 19, 2016, as amended at 85 FR 630, Jan. 6, 2020; 88
FR 82734, Nov. 24, 2023]
Sec. 658.604 Assessment and evaluation of program performance data.
(a) State Workforce Agencies must compile program performance data
required by the Department, including
[[Page 27]]
statistical information on program operations.
(b) The Department must use the program performance data in
assessing and evaluating whether each SWA has complied with ES
regulations and its State Plan.
(c) In assessing and evaluating program performance data, the
Department must act in accordance with the following general principles:
(1) The fact that the program performance data from a SWA, whether
overall or relative to a particular program activity, indicate poor
program performance does not by itself constitute a violation of ES
regulations or of the State Workforce Agency's responsibilities under
its State Plan;
(2) Program performance data, however, may so strongly indicate that
a SWA's performance is so poor that the data may raise a presumption
(prima facie case) that a SWA is violating ES regulations or the State
Plan. A SWA's failure to meet the operational objectives set forth in
the State Plan raises a presumption that the agency is violating ES
regulations and/or obligations under its State Plan. In such cases, the
Department must afford the SWA an opportunity to rebut the presumption
of a violation pursuant to the procedures at subpart H of this part.
(3) The Department must take into account that certain program
performance data may measure items over which SWAs have direct or
substantial control while other data may measure items over which the
SWA has indirect or minimal control.
(i) Generally, for example, a SWA has direct and substantial control
over the delivery of ES services such as referrals to jobs, job
development contacts, counseling, referrals to career and supportive
services, and the conduct of field checks.
(ii) State Workforce Agencies, however, have only indirect control
over the outcome of services. For example, SWAs cannot guarantee that an
employer will hire a referred applicant, nor can they guarantee that the
terms and conditions of employment will be as stated on a job order.
(iii) Outside forces, such as a sudden heavy increase in
unemployment rates, a strike by SWA employees, or a severe drought or
flood, may skew the results measured by program performance data.
(4) The Department must consider a SWA's failure to keep accurate
and complete program performance data required by ES regulations as a
violation of the ES regulations.
[81 FR 56352, Aug. 19, 2016, as amended at 88 FR 82736, Nov. 24, 2023]
Sec. 658.605 Communication of findings to State agencies.
(a) The Regional Administrator must inform SWAs in writing of the
results of review and assessment activities and, as appropriate, must
discuss with the State Administrator the impact or action required by
the Department as a result of review and assessment activities.
(b) The ETA National Office must transmit the results of any review
and assessment activities it conducted to the Regional Administrator who
must send the information to the SWA.
(c) Whenever the review and assessment indicates a SWA violation of
ES regulations or its State Plan, the Regional Administrator must follow
the procedures set forth at subpart H of this part.
(d) Regional Administrators must follow-up any corrective action
plan imposed on a SWA under subpart H of this part by further review and
assessment of the State Workforce Agency pursuant to this subpart.
Subpart H_Federal Application of Remedial Action to State Workforce
Agencies
Sec. 658.700 Scope and purpose of subpart.
This subpart sets forth the procedures which the Department must
follow upon either discovering independently or receiving from other(s)
information indicating that SWAs may not be adhering to ES regulations.
Sec. 658.701 Statements of policy.
(a) It is the policy of the Department to take all necessary action,
including the imposition of the full range of sanctions set forth in
this subpart, to
[[Page 28]]
ensure State Workforce Agencies comply with all requirements established
by ES regulations.
(b) It is the policy of the Department to initiate decertification
procedures against SWAs in instances of serious or continual violations
of ES regulations if less stringent remedial actions taken in accordance
with this subpart fail to resolve noncompliance.
(c) It is the policy of the Department to act on information
concerning alleged violations by SWAs of the ES regulations received
from any person or organization.
Sec. 658.702 Initial action by the Regional Administrator.
(a) The ETA Regional Administrator is responsible for ensuring that
all SWAs in their region are in compliance with ES regulations.
(b) Wherever a Regional Administrator discovers or is apprised of
possible SWA violations of ES regulations by the review and assessment
activities under subpart G of this part, or through required reports or
written complaints from individuals, organizations, or employers which
are elevated to the Department after the exhaustion of SWA
administrative remedies, the Regional Administrator must conduct an
investigation. Within 10 business days after receipt of the report or
other information, the Regional Administrator must make a determination
whether there is probable cause to believe that a SWA has violated ES
regulations.
(c) The Regional Administrator must accept complaints regarding
possible SWA violations of ES regulations from employee organizations,
employers or other groups, without exhaustion of the complaint process
described at subpart E of this part, if the Regional Administrator
determines that the nature and scope of the complaint are such that the
time required to exhaust the administrative procedures at the State
level would adversely affect a significant number of applicants. In such
cases, the Regional Administrator must investigate the matter within 10
business days, may provide the SWA 10 business days for comment, and
must make a determination within an additional 10 business days whether
there is probable cause to believe that the SWA has violated ES
regulations.
(d) If the Regional Administrator determines that there is no
probable cause to believe that a SWA has violated ES regulations, they
must retain all reports and supporting information in Department files.
In all cases where the Regional Administrator has insufficient
information to make a probable cause determination, they must so notify
the Administrator in writing and the time for the investigation must be
extended 20 additional business days.
(e) If the Regional Administrator determines there is probable cause
to believe a SWA has violated ES regulations, they must issue a Notice
of Initial Findings of Non-compliance by registered mail (or other
legally viable means) to the offending SWA. The notice will specify the
nature of the violation, cite the regulations involved, and indicate
corrective action which may be imposed in accordance with paragraphs (g)
and (h) of this section. If the non-compliance involves services to
MSFWs or the Complaint System, a copy of said notice must be sent to the
NMA.
(f)(1) The SWA may have 20 business days to comment on the findings,
or up to 20 additional days, if the Regional Administrator determines a
longer period is appropriate. The SWA's comments must include agreement
or disagreement with the findings and suggested corrective actions,
where appropriate.
(2) After the period elapses, the Regional Administrator must
prepare within 20 business days, written final findings which specify
whether the SWA has violated ES regulations. If in the final findings
the Regional Administrator determines the SWA has not violated ES
regulations, the Regional Administrator must notify the State
Administrator of this finding and retain supporting documents in their
files. If the final finding involves services to MSFWs or the Complaint
System, the Regional Administrator also must notify the RMA and the NMA.
If the Regional Administrator determines a SWA has violated ES
regulations, the Regional Administrator must prepare a Final Notice of
Noncompliance which must specify the violation(s) and cite
[[Page 29]]
the regulations involved. The Final Notice of Noncompliance must be sent
to the SWA by registered mail or other legally viable means. If the
noncompliance involves services to MSFWs or the Complaint System, a copy
of the Final Notice must be sent to the RMA and the NMA.
(g) If the violation involves the misspending of grant funds, the
Regional Administrator may order in the Final Notice of Noncompliance a
disallowance of the expenditure and may either demand repayment or
withhold future funds in the amount in question. If the Regional
Administrator disallows costs, the Regional Administrator must give the
reasons for the disallowance, inform the SWA that the disallowance is
effective immediately and that no more funds may be spent in the
disallowed manner, and offer the SWA the opportunity to request a
hearing pursuant to Sec. 658.707. The offer, or the acceptance of an
offer of a hearing, however, does not stay the effectiveness of the
disallowance. The Regional Administrator must keep complete records of
the disallowance.
(h) If the violation does not involve misspending of grant funds or
the Regional Administrator determines that the circumstances warrant
other action:
(1) The Final Notice of Noncompliance must direct the SWA to
implement a specific corrective action plan to correct all violations.
If the SWA's comment demonstrates with supporting evidence (except where
inappropriate) that all violations have already been corrected, the
Regional Administrator need not impose a corrective action plan and
instead may cite the violation(s) and accept the SWA's resolution,
subject to follow-up review, if necessary. If the Regional Administrator
determines that the violation(s) cited had been found previously and
that the corrective action(s) taken had not corrected the violation(s)
contrary to the findings of previous follow-up reviews, the Regional
Administrator must apply remedial actions to the SWA pursuant to Sec.
658.704.
(2) The Final Notice of Noncompliance must specify the time by which
each corrective action must be taken. This period may not exceed 40
business days unless the Regional Administrator determines that
exceptional circumstances necessitate corrective actions requiring a
longer time period. In such cases, and if the violations involve
services to MSFWs or the Complaint System, the Regional Administrator
must notify the Administrator in writing of the exceptional
circumstances which necessitate more time, and must specify the
additional time period. The specified time must commence with the date
of signature on the registered mail receipt.
(3) When the time provided for in paragraph (h)(2) of this section
elapses, Department staff must review the SWA's efforts as documented by
the SWA to determine if the corrective action(s) has been taken and if
the SWA has achieved compliance with ES regulations. If necessary,
Department staff must conduct a follow-up visit as part of this review.
(4) If, as a result of this review, the Regional Administrator
determines the SWA has corrected the violation(s), the Regional
Administrator must record the basis for this determination, notify the
SWA, send a copy to the Administrator, and retain a copy in Department
files.
(5) If, as a result of this review, the Regional Administrator
determines the SWA has taken corrective action but is unable to
determine if the violation has been corrected due to seasonality or
other factors, the Regional Administrator must notify in writing the SWA
and the Administrator of their findings. The Regional Administrator must
conduct further follow-up at an appropriate time to make a final
determination if the violation has been corrected. If the Regional
Administrator's follow-up reveals that violations have not been
corrected, the Regional Administrator must apply remedial actions to the
SWA pursuant to Sec. 658.704.
(6) If, as a result of the review the Regional Administrator
determines the SWA has not corrected the violations and has not made
good faith efforts and adequate progress toward the correction of the
violations, the Regional Administrator must apply remedial actions to
the SWA pursuant to Sec. 658.704.
(7) If, as a result of the review, the Regional Administrator
determines the
[[Page 30]]
SWA has made good faith efforts and adequate progress toward the
correction of the violation and it appears the violation will be fully
corrected within a reasonable amount of time, the SWA must be advised by
registered mail or other legally viable means (with a copy sent to the
Administrator) of this conclusion, of remaining differences, of further
needed corrective action, and that all deficiencies must be corrected
within a specified time period. This period may not exceed 40 business
days unless the Regional Administrator determines exceptional
circumstances necessitate corrective action requiring more time. In such
cases, the Regional Administrator must notify the Administrator in
writing of the exceptional circumstances which necessitate more time,
and must specify that time period. The specified time commences with the
date of signature on the registered mail receipt.
(8)(i) If the SWA has been given additional time pursuant to
paragraph (h)(7) of this section, Department staff must review the SWA's
efforts as documented by the SWA at the end of the time period. If
necessary, the Department must conduct a follow-up visit as part of this
review.
(ii) If the SWA has corrected the violation(s), the Regional
Administrator must document that finding, notify in writing the SWA and
the Administrator, and retain supporting documents in Department files.
If the SWA has not corrected the violation(s), the Regional
Administrator must apply remedial actions pursuant to Sec. 658.704.
[81 FR 56352, Aug. 19, 2016, as amended at 88 FR 82736, Nov. 24, 2023]
Sec. 658.703 Emergency corrective action.
In critical situations as determined by the Regional Administrator,
where it is necessary to protect the integrity of the funds, or ensure
the proper operation of the program, the Regional Administrator may
impose immediate corrective action. Where immediate corrective action is
imposed, the Regional Administrator must notify the SWA of the reason
for imposing the emergency corrective action prior to providing the SWA
an opportunity to comment.
Sec. 658.704 Remedial actions.
(a) If a SWA fails to correct violations as determined pursuant to
Sec. 658.702, the Regional Administrator must apply one or more of the
following remedial actions to the SWA:
(1) Imposition of special reporting requirements for a specified
time;
(2) Restrictions of obligational authority within one or more
expense classifications;
(3) Implementation of specific operating systems or procedures for a
specified time;
(4) Requirement of special training for ES staff;
(5) With the approval of the Assistant Secretary and after affording
the State Administrator the opportunity to request a conference with the
Assistant Secretary, the elevation of specific decision-making functions
from the State Administrator to the Regional Administrator;
(6) With the approval of the Assistant Secretary and after affording
the State Administrator the opportunity to request a conference with the
Assistant Secretary, the imposition of Federal staff in key SWA
positions;
(7) With the approval of the Assistant Secretary and after affording
the State Administrator the opportunity to request a conference with the
Assistant Secretary, funding of the SWA on a short-term basis or partial
withholding of funds for a specific function or for a specific
geographical area;
(8) Holding of public hearings in the State on the SWA's
deficiencies;
(9) Disallowance of funds pursuant to Sec. 658.702(g); or
(10) If the matter involves a serious or continual violation, the
initiation of decertification procedures against the State Workforce
Agency, as set forth in paragraph (e) of this section.
(b) The Regional Administrator must send, by registered mail, a
Notice of Remedial Action to the SWA. The Notice of Remedial Action must
set forth the reasons for the remedial action. When such a notice is the
result of violations of regulations governing services to MSFWs
(Sec. Sec. 653.100 through 653.113 of this chapter) or the Complaint
System (Sec. Sec. 658.400 through 658.426), a copy
[[Page 31]]
of said notice must be sent to the Administrator, who must publish the
notice promptly in the Federal Register.
(c) If the remedial action is other than decertification, the notice
must state the remedial action must take effect immediately. The notice
also must state the SWA may request a hearing pursuant to Sec. 658.707
by filing a request in writing with the Regional Administrator pursuant
to Sec. 658.707 within 20 business days of the SWA's receipt of the
notice. The offer of hearing, or the acceptance thereof, however, does
not stay or otherwise delay the implementation of remedial action.
(d) Within 60 business days after the initial application of
remedial action, the Regional Administrator must conduct a review of the
SWA's compliance with ES regulations unless the Regional Administrator
determines more time is necessary. In such cases, the Regional
Administrator must notify the Administrator in writing of the
circumstances which necessitate more time, and specify that time period.
If necessary, Department staff must conduct a follow-up visit as part of
this review. If the SWA is in compliance with the ES regulations, the
Regional Administrator must fully document these facts and must
terminate the remedial actions. The Regional Administrator must notify
the SWA of their findings. When the case involves violations of
regulations governing services to MSFWs or the Complaint System, a copy
of said notice must be sent to the Administrator, who must promptly
publish the notice in the Federal Register. The Regional Administrator
must conduct, within a reasonable time after terminating the remedial
actions, a review of the SWA's compliance to determine whether any
remedial actions must be reapplied.
(e) If, upon conducting the on-site review referred to in paragraph
(c) of this section, the Regional Administrator finds the SWA remains in
noncompliance, the Regional Administrator must continue the remedial
action and/or impose different additional remedial actions. The Regional
Administrator must fully document all such decisions and, when the case
involves violations of regulations governing services to MSFWs or the
Complaint System, must send copies to the Administrator, who must
promptly publish the notice in the Federal Register.
(f)(1) If the SWA has not brought itself into compliance with ES
regulations within 120 business days of the initial application of
remedial action, the Regional Administrator must initiate
decertification unless the Regional Administrator determines the
circumstances necessitate continuing remedial action for more time. In
such cases, the Regional Administrator must notify the Administrator in
writing of the circumstances which necessitate the extended time, and
specify the time period.
(2) The Regional Administrator must notify the SWA by registered
mail or by other legally viable means of the decertification
proceedings, and must state the reasons therefor. Whenever such a notice
is sent to a SWA, the Regional Administrator must prepare five copies
(hard copies or electronic copies) containing, in chronological order,
all the documents pertinent to the case along with a request for
decertification stating the grounds therefor. One copy must be retained.
Two must be sent to the ETA National Office, one must be sent to the
Solicitor of Labor, Attention: Associate Solicitor for Employment and
Training, and, if the case involves violations of regulations governing
services to MSFWs or the Complaint System, copies must be sent to the
RMA and the NMA.All copies also must be sent electronically to each
respective party. The notice sent by the Regional Administrator must be
published promptly in the Federal Register.
[81 FR 56352, Aug. 19, 2016, as amended at 85 FR 630, Jan. 6, 2020; 88
FR 82736, Nov. 24, 2023]
Sec. 658.705 Decision to decertify.
(a) Within 30 business days of receiving a request for
decertification, the ETA Assistant Secretary must review the case and
must decide whether to proceed with decertification.
(b) The Assistant Secretary must grant the request for
decertification unless they make a finding that:
(1) The violations of ES regulations are neither serious nor
continual;
(2) The SWA is in compliance; or
[[Page 32]]
(3) The Assistant Secretary has reason to believe the SWA will
achieve compliance within 80 business days unless exceptional
circumstances necessitate more time, pursuant to the remedial action
already applied or to be applied. (In the event the Assistant Secretary
does not have sufficient information to act upon the request, they may
postpone the determination for up to an additional 20 business days to
obtain any available additional information.) In making a determination
whether violations are ``serious'' or ``continual,'' as required by
paragraph (b)(1) of this section, the Assistant Secretary must consider:
(i) Statewide or multiple deficiencies as shown by performance data
and/or on-site reviews;
(ii) Recurrent violations, even if they do not persist over
consecutive reporting periods, and
(iii) The good faith efforts of the State to achieve full compliance
with ES regulations as shown by the record.
(c) If the Assistant Secretary denies a request for decertification,
they must write a complete report documenting their findings and, if
appropriate, instructing an alternate remedial action or actions be
applied. Electronic copies of the report must be sent to the Regional
Administrator. Notice of the Assistant Secretary's decision must be
published promptly in the Federal Register and the report of the
Assistant Secretary must be made available for public inspection and
copying.
(d) If the Assistant Secretary decides decertification is
appropriate, they must submit the case to the Secretary providing
written explanation for their recommendation of decertification.
(e) Within 30 business days after receiving the Assistant
Secretary's report, the Secretary must determine whether to decertify
the SWA. The Secretary must grant the request for decertification unless
they make one of the three findings set forth in paragraph (b) of this
section. If the Secretary decides not to decertify, they must then
instruct that remedial action be continued or that alternate actions be
applied. The Secretary must write a report explaining their reasons for
not decertifying the SWA and copies (hard copy and electronic) will be
sent to the SWA. Notice of the Secretary's decision must be published
promptly in the Federal Register, and the report of the Secretary must
be made available for public inspection and copy.
(f) Where either the Assistant Secretary or the Secretary denies a
request for decertification and orders further remedial action, the
Regional Administrator must continue to monitor the SWA's compliance. If
the SWA achieves compliance within the time established pursuant to
paragraph (b) of this section, the Regional Administrator must terminate
the remedial actions. If the SWA fails to achieve full compliance within
that time period after the Secretary's decision not to decertify, the
Regional Administrator must submit a report of their findings to the
Assistant Secretary who must reconsider the request for decertification
pursuant to the requirements of paragraph (b) of this section.
[81 FR 56352, Aug. 19, 2016, as amended at 88 FR 82736, Nov. 24, 2023]
Sec. 658.706 Notice of decertification.
If the Secretary decides to decertify a SWA, they must send a Notice
of Decertification to the SWA stating the reasons for this action and
providing a 10-business-day period during which the SWA may request an
administrative hearing in writing to the Secretary. The document must be
published promptly in the Federal Register.
[88 FR 82737, Nov. 24, 2023]
Sec. 658.707 Requests for hearings.
(a) Any SWA which received a Notice of Decertification under Sec.
658.706 or a notice of disallowance under Sec. 658.702(g) may request a
hearing on the issue by filing a written request for hearing with the
Secretary within 10 business days of receipt of the notice.
Additionally, any SWA that has received a Notice of Remedial Action
under Sec. 658.704(c) may request a hearing by filing a written request
with the Regional Administrator within 20 business days of the SWA's
receipt of the notice. This request must state the reasons the SWA
believes the basis of the decision to be wrong, and it must be signed by
[[Page 33]]
the State Administrator (electronic signatures may be accepted).
(b) When the Secretary or Regional Administrator receives a request
for a hearing from a SWA, they must send copies of a file containing all
materials and correspondence relevant to the case to the Assistant
Secretary, the Regional Administrator, the Solicitor of Labor, and the
Department of Labor Chief Administrative Law Judge. When the case
involves violations of regulations governing services to MSFWs or the
Complaint System, a copy must be sent to the NMA.
(c) The Secretary must publish notice of hearing in the Federal
Register. This notice must invite all interested parties to attend and
to present evidence at the hearing. All interested parties who make
written request to participate must thereafter receive copies (hard copy
and/or electronic) of all documents filed in said proceedings.
[81 FR 56352, Aug. 19, 2016, as amended at 88 FR 82737, Nov. 24, 2023]
Sec. 658.708 Hearings.
(a) Upon receipt of a hearing file by the Chief Administrative Law
Judge, the case must be docketed and notice sent by electronic mail,
other means of electronic service, or registered mail, return receipt
requested, to the Solicitor of Labor, Attention: Associate Solicitor for
Employment and Training, the Administrator, the Regional Administrator
and the State Administrator. The notice must set a time, place, and date
for a hearing on the matter and must advise the parties that:
(1) They may be represented at the hearing;
(2) They may present oral and documentary evidence at the hearing;
(3) They may cross-examine opposing witnesses at the hearing; and
(4) They may request rescheduling of the hearing if the time, place,
or date set are inconvenient.
(b) The Solicitor of Labor or the Solicitor's designee will
represent the Department at the hearing.
Sec. 658.709 Conduct of hearings.
(a) Proceedings under this section are governed by secs. 5 through 8
of the Administrative Procedure Act, 5 U.S.C. 553 et seq. and the rules
of practice and procedure at subpart A of 29 CFR part 18, except as
otherwise specified in this section.
(b) Technical rules of evidence do not apply, but rules or
principles designed to assure production of the most credible evidence
available and to subject testimony to test by cross-examination, must be
applied if necessary by the ALJ conducting the hearing. The ALJ may
exclude irrelevant, immaterial, or unduly repetitious evidence. All
documents and other evidence offered or taken for the record must be
open to examination by the parties. Opportunity must be given to refute
facts and arguments advanced on either side of the issue. A transcript
must be made of the oral evidence except to the extent the substance
thereof is stipulated for the record.
(c) Discovery may be conducted as provided in the rules of practice
and procedure at 29 CFR 18.50 through 18.65.
(d) When a public officer is a respondent in a hearing in an
official capacity and during its pendency dies, resigns, or otherwise
ceases to hold office, the proceeding does not abate and the officer's
successor is automatically substituted as a party. Proceedings following
the substitution must be in the name of the substituted party, but any
misnomer not affecting the substantive rights of the parties must be
disregarded. An order of substitution may be entered at any time, but
the omission to enter such an order may not affect the substitution.
Sec. 658.710 Decision of the Administrative Law Judge.
(a) The ALJ has jurisdiction to decide all issues of fact and
related issues of law and to grant or deny appropriate motions, but does
not have jurisdiction to decide upon the validity of Federal statutes or
regulations.
(b) The decision of the ALJ must be based on the hearing record,
must be in writing, and must state the factual and legal basis of the
decision. The ALJ's decision must be available for public inspection and
copying.
(c) Except when the case involves the decertification of a SWA, the
decision
[[Page 34]]
of the ALJ will be considered the final decision of the Secretary.
(d) If the case involves the decertification of an appeal to the
SWA, the decision of the ALJ must contain a notice stating that, within
30 calendar days of the decision, the SWA or the Administrator may
appeal to the Administrative Review Board, United States Department of
Labor, by filing an appeal with the Administrative Review Board in
accordance with 29 CFR part 26.
[81 FR 56352, Aug. 19, 2016, as amended at 86 FR 1778, Jan. 11, 2021]
Sec. 658.711 Decision of the Administrative Review Board.
(a) Upon the receipt of an appeal to the Administrative Review
Board, United States Department of Labor, the ALJ must certify the
record in the case to the Administrative Review Board, which must make a
decision to decertify or not on the basis of the hearing record.
(b) The decision of the Administrative Review Board must be in
writing, and must set forth the factual and legal basis for the
decision. After the Board's decision becomes final, notice of the
decision must be published in the Federal Register, and copies must be
made available for public inspection and copying.
[81 FR 56352, Aug. 19, 2016, as amended at 85 FR 13030, Mar. 6, 2020; 85
FR 30615, May 20, 2020]
PART 660_INTRODUCTION TO THE REGULATIONS FOR WORKFORCE INVESTMENT SYSTEMS
UNDER TITLE I OF THE WORKFORCE INVESTMENT ACT--Table of Contents
Sec.
660.100 What is the purpose of title I of the Workforce Investment Act
of 1998?
660.200 What do the regulations for workforce investment systems under
title I of the Workforce Investment Act cover?
660.300 What definitions apply to the regulations for workforce
investment systems under title I of WIA?
Authority: Sec. 506(c), Pub. L. 105-220; 20 U.S.C. 9276(c).
Source: 65 FR 49388, Aug. 11, 2000, unless otherwise noted.
Sec. 660.100 What is the purpose of title I of the Workforce Investment
Act of 1998?
The purpose of title I of the Workforce Investment Act of 1998 (WIA)
is to provide workforce investment activities that increase the
employment, retention and earnings of participants, and increase
occupational skill attainment by participants, which will improve the
quality of the workforce, reduce welfare dependency, and enhance the
productivity and competitiveness of the Nation's economy. These goals
are achieved through the workforce investment system. (WIA sec. 106.)
Sec. 660.200 What do the regulations for workforce investment systems
under title I of the Workforce Investment Act cover?
The regulations found in 20 CFR parts 660 through 671 set forth the
regulatory requirements that are applicable to programs operated with
funds provided under title I of WIA. This part 660 describes the purpose
of that Act, explains the format of these regulations and sets forth
definitions for terms that apply to each part. Part 661 contains
regulations relating to Statewide and local governance of the workforce
investment system. Part 662 describes the One-Stop system and the roles
of One-Stop partners. Part 663 sets forth requirements applicable to WIA
title I programs serving adults and dislocated workers. Part 664 sets
forth requirements applicable to WIA title I programs serving youth.
Part 665 contains regulations relating to Statewide activities. Part 666
describes the WIA title I performance accountability system. Part 667
sets forth the administrative requirements applicable to programs funded
under WIA title I. Parts 668 and 669 contain the particular requirements
applicable to programs serving Indians and Native Americans and Migrant
and Seasonal Farmworkers, respectively. Parts 670 and 671 describe the
particular requirements applicable to the Job Corps and other national
programs, respectively. In addition, part 652 describes the
establishment and functioning of State Employment Services under the
Wagner-
[[Page 35]]
Peyser Act, and 29 CFR part 37 contains the Department's
nondiscrimination regulations implementing WIA section 188.
Sec. 660.300 What definitions apply to the regulations for workforce
investment systems under title I of WIA?
In addition to the definitions set forth at WIA section 101, the
following definitions apply to the regulations in 20 CFR parts 660
through 671:
Department or DOL means the U.S. Department of Labor, including its
agencies and organizational units.
Designated region means a combination of local areas that are partly
or completely in a single labor market area, economic development
region, or other appropriate contiguous subarea of a State, that is
designated by the State under WIA section 116(c), or a similar
interstate region that is designated by two or more States under WIA
section 116(c)(4).
Employment and training activity means a workforce investment
activity that is carried out for an adult or dislocated worker.
EO data means data on race and ethnicity, age, sex, and disability
required by 29 CFR part 37 of the DOL regulations implementing section
188 of WIA, governing nondiscrimination.
ETA means the Employment and Training Administration of the U.S.
Department of Labor.
Grant means an award of WIA financial assistance by the U.S.
Department of Labor to an eligible WIA recipient.
Grantee means the direct recipient of grant funds from the
Department of Labor. A grantee may also be referred to as a recipient.
Individual with a disability means an individual with any disability
(as defined in section 3 of the Americans with Disabilities Act of 1990
(42 U.S.C. 12102)). For purposes of WIA section 188, this term is
defined at 29 CFR 37.4.
Labor Federation means an alliance of two or more organized labor
unions for the purpose of mutual support and action.
Literacy means an individual's ability to read, write, and speak in
English, and to compute, and solve problems, at levels of proficiency
necessary to function on the job, in the family of the individual, and
in society.
Local Board means a Local Workforce Investment Board established
under WIA section 117, to set policy for the local workforce investment
system.
Obligations means the amounts of orders placed, contracts and
subgrants awarded, goods and services received, and similar transactions
during a funding period that will require payment by the recipient or
subrecipient during the same or a future period. For purposes of the
reallotment process described at 20 CFR 667.150, the Secretary also
treats as State obligations any amounts allocated by the State under WIA
sections 128(b) and 133(b) to a single area State or to a balance of
State local area administered by a unit of the State government, and
inter-agency transfers and other actions treated by the State as
encumbrances against amounts reserved by the State under WIA sections
128(a) and 133(a) for Statewide workforce investment activities.
Outlying area means the United States Virgin Islands, Guam, American
Samoa, the Commonwealth of the Northern Mariana Islands, the Republic of
the Marshall Islands, the Federated States of Micronesia, and the
Republic of Palau.
Participant means an individual who has registered under 20 CFR
663.105 or 664.215 and has been determined to be eligible to participate
in and who is receiving services (except for follow up services) under a
program authorized by WIA title I. Participation commences on the first
day, following determination of eligibility, on which the individual
begins receiving core, intensive, training or other services provided
under WIA title I.
Recipient means an entity to which a WIA grant is awarded directly
from the Department of Labor to carry out a program under title I of
WIA. The State is the recipient of funds awarded under WIA sections
127(b)(1)(C)(I)(II), 132(b)(1)(B) and 132(b)(2)(B). The recipient is the
entire legal entity that received the award and is legally responsible
for carrying out the WIA program, even if only a particular component of
the entity is designated in the grant award document.
[[Page 36]]
Register means the process for collecting information to determine
an individual's eligibility for services under WIA title I. Individuals
may be registered in a variety ways, as described in 20 CFR 663.105 and
20 CFR 664.215.
Secretary means the Secretary of the U.S. Department of Labor.
Self certification means an individual's signed attestation that the
information he/she submits to demonstrate eligibility for a program
under title I of WIA is true and accurate.
State means each of the several States of the United States, the
District of Columbia and the Commonwealth of Puerto Rico. The term
``State'' does not include outlying areas.
State Board means a State Workforce Investment Board established
under WIA section 111.
Subgrant means an award of financial assistance in the form of
money, or property in lieu of money made under a grant by a grantee to
an eligible subrecipient. The term includes financial assistance when
provided by contractual legal agreement, but does not include
procurement purchases, nor does it include any form of assistance which
is excluded from the definition of Grant in this part.
Subrecipient means an entity to which a subgrant is awarded and
which is accountable to the recipient (or higher tier subrecipient) for
the use of the funds provided. DOL's audit requirements for States,
local governments, and non-profit organizations provides guidance on
distinguishing between a subrecipient and a vendor at 29 CFR 99.210.
Unobligated balance means the portion of funds authorized by the
Federal agency that has not been obligated by the grantee and is
determined by deducting the cumulative obligations from the cumulative
funds authorized.
Vendor means an entity responsible for providing generally required
goods or services to be used in the WIA program. These goods or services
may be for the recipient's or subrecipient's own use or for the use of
participants in the program. DOL's audit requirements for States, local
governments, and non-profit organizations provides guidance on
distinguishing between a subrecipient and a vendor at 29 CFR 99.210.
Wagner-Peyser Act means the Act of June 6, 1933, as amended,
codified at 29 U.S.C. 49 et seq.
WIA regulations mean the regulations in 20 CFR parts 660 through
671, the Wagner-Peyser Act regulations in 20 CFR part 652, subpart C,
and the regulations implementing WIA section 188 in 29 CFR part 37.
Workforce investment activities mean the array of activities
permitted under title I of WIA, which include employment and training
activities for adults and dislocated workers, as described in WIA
section 134, and youth activities, as described in WIA section 129.
Youth activity means a workforce investment activity that is carried
out for youth.
PART 661_STATEWIDE AND LOCAL GOVERNANCE OF THE WORKFORCE INVESTMENT SYSTEM
UNDER TITLE I OF THE WORKFORCE INVESTMENT ACT--Table of Contents
Subpart A_General Governance Provisions
Sec.
661.100 What is the workforce investment system?
661.110 What is the role of the Department of Labor as the Federal
governmental partner in the governance of the workforce
investment system?
661.120 What are the roles of the local and State governmental partner
in the governance of the workforce investment system?
Subpart B_State Governance Provisions
661.200 What is the State Workforce Investment Board?
661.203 What is meant by the terms ``optimum policy making authority''
and ``expertise relating to [a] program, service or
activity''?
661.205 What is the role of the State Board?
661.207 How does the State Board meet its requirement to conduct
business in an open manner under the ``sunshine provision'' of
WIA section 111(g)?
661.210 Under what circumstances may the Governor select an alternative
entity in place of the State Workforce Investment Board?
661.220 What are the requirements for the submission of the State
Workforce Investment Plan?
[[Page 37]]
661.230 What are the requirements for modification of the State
Workforce Investment Plan?
661.240 How do the unified planning requirements apply to the five-year
strategic WIA and Wagner-Peyser plan and to other Department
of Labor plans?
661.250 What are the requirements for designation of local workforce
investment areas?
661.260 What are the requirements for automatic designation of workforce
investment areas relating to units of local government with a
population of 500,000 or more?
661.270 What are the requirements for temporary and subsequent
designation of workforce investment areas relating to areas
that had been designated as service delivery areas under JTPA?
661.280 What right does an entity have to appeal the Governor's decision
rejecting a request for designation as a workforce investment
area?
661.290 Under what circumstances may States require Local Boards to take
part in regional planning activities?
Subpart C_Local Governance Provisions
661.300 What is the Local Workforce Investment Board?
661.305 What is the role of the Local Workforce Investment Board?
661.307 How does the Local Board meet its requirement to conduct
business in an open manner under the ``sunshine provision'' of
WIA section 117(e)?
661.310 Under what limited conditions may a Local Board directly be a
provider of core services, intensive services, or training
services, or act as a One-Stop Operator?
661.315 Who are the required members of the Local Workforce Investment
Boards?
661.317 Who may be selected to represent a particular One-Stop partner
program on the Local Board when there is more than one partner
program entity in the local area?
661.320 Who must chair a Local Board?
661.325 What criteria will be used to establish the membership of the
Local Board?
661.330 Under what circumstances may the State use an alternative entity
as the Local Workforce Investment Board?
661.335 What is a youth council, and what is its relationship to the
Local Board?
661.340 What are the responsibilities of the youth council?
661.345 What are the requirements for the submission of the local
workforce investment plan?
661.350 What are the contents of the local workforce investment plan?
661.355 When must a local plan be modified?
Subpart D_Waivers and Work-Flex Waivers
661.400 What is the purpose of the General Statutory and Regulatory
Waiver Authority provided at section 189(i)(4) of the
Workforce Investment Act?
661.410 What provisions of WIA and the Wagner-Peyser Act may be waived,
and what provisions may not be waived?
661.420 Under what conditions may a Governor request, and the Secretary
approve, a general waiver of statutory or regulatory
requirements under WIA section189(i)(4)?
661.430 Under what conditions may the Governor submit a Workforce
Flexibility Plan?
661.440 What limitations apply to the State's Workforce Flexibility Plan
authority under WIA?
Authority: Sec. 506(c), Pub. L. 105-220; 20 U.S.C. 9276(c).
Source: 65 FR 49390, Aug. 11, 2000, unless otherwise noted.
Subpart A_General Governance Provisions
Sec. 661.100 What is the workforce investment system?
Under title I of WIA, the workforce investment system provides the
framework for delivery of workforce investment activities at the State
and local levels to individuals who need those services, including job
seekers, dislocated workers, youth, incumbent workers, new entrants to
the workforce, veterans, persons with disabilities, and employers. Each
State's Governor is required, in accordance with the requirements of
this part, to establish a State Board; to designate local workforce
investment areas; and to oversee the creation of Local Boards and One-
Stop service delivery systems in the State.
Sec. 661.110 What is the role of the Department of Labor as the Federal
governmental partner in the governance of the workforce investment system?
(a) Successful governance of the workforce investment system will be
achieved through cooperation and coordination of Federal, State and
local governments.
[[Page 38]]
(b) The Department of Labor sees as one of its primary roles
providing leadership and guidance to support a system that meets the
objectives of title I of WIA, and in which State and local partners have
flexibility to design systems and deliver services in a manner designed
to best achieve the goals of WIA based on their particular needs. The
WIA regulations provide the framework in which State and local officials
can exercise such flexibility within the confines of the statutory
requirements. Wherever possible, system features such as design options
and categories of services are broadly defined, and are subject to State
and local interpretation.
(c) The Secretary, in consultation with other Federal Agencies, as
appropriate, may publish guidance on interpretations of statutory and
regulatory 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
Act for purposes of Sec. 661.120.
Sec. 661.120 What are the roles of the local and State governmental
partner in the governance of the workforce investment system?
(a) Local areas should establish policies, interpretations,
guidelines and definitions to implement provisions of title I of WIA to
the extent that such policies, interpretations, guidelines and
definitions are not inconsistent with the Act and the regulations issued
under the Act, Federal statutes and regulations governing One-Stop
partner programs, and with State policies.
(b) States should establish policies, interpretations, guidelines
and definitions to implement provisions of title I of WIA to the extent
that such policies, interpretations, guidelines and definitions are not
inconsistent with the Act and the regulations issued under the Act, as
well as Federal statutes and regulations governing One-Stop partner
programs.
Subpart B_State Governance Provisions
Sec. 661.200 What is the State Workforce Investment Board?
(a) The State Board is a board established by the Governor in
accordance with the requirements of WIA section 111 and this section.
(b) The membership of the State Board must meet the requirements of
WIA section 111(b). The State Board must contain two or more members
representing the categories described in WIA section 111(b)(1)(C)(iii)-
(v), and special consideration must be given to chief executive officers
of community colleges and community based organizations in the selection
of members representing the entities identified in WIA section
111(b)(1)(C)(v).
(c) The Governor may appoint any other representatives or agency
officials, such as agency officials responsible for economic
development, child support and juvenile justice programs in the State.
(d) Members who represent organizations, agencies or other entities
must be individuals with optimum policy making authority within the
entities they represent.
(e) A majority of members of the State Board must be representatives
of business. Members who represent business must be individuals who are
owners, chief executive officers, chief operating officers, or other
individuals with optimum policy making or hiring authority, including
members of Local Boards.
(f) The Governor must appoint the business representatives from
among individuals who are nominated by State business organizations and
business trade associations. The Governor must appoint the labor
representatives from among individuals who are nominated by State labor
federations.
(g) The Governor must select a chairperson of the State Board from
the business representatives on the board.
(h) The Governor may establish terms of appointment or other
conditions governing appointment or membership on the State Board.
(i) For the programs and activities carried out by One-Stop
partners, as described in WIA section 121(b) and 20
[[Page 39]]
CFR 662.200 and 662.210, the State Board must include:
(1) The lead State agency officials with responsibility for such
program, or
(2) In any case in which no lead State agency official has
responsibility for such a program service, a representative in the State
with expertise relating to such program, service or activity.
(3) If the director of the designated State unit, as defined in
section 7(8)(B) of the Rehabilitation Act, does not represent the State
Vocational Rehabilitation Services program (VR program) on the State
Board, then the State must describe in its State plan how the member of
the State Board representing the VR program will effectively represent
the interests, needs, and priorities of the VR program and how the
employment needs of individuals with disabilities in the State will be
addressed.
(j) An individual may be appointed as a representative of more than
one entity if the individual meets all the criteria for representation,
including the criteria described in paragraphs (d) through (f) of this
section, for each entity. (WIA sec. 111)
Sec. 661.203 What is meant by the terms ``optimum policy making
authority'' and ``expertise relating to [a] program, service or
activity''?
For purposes of selecting representatives to State and local
workforce investment boards:
(a) A representative with ``optimum policy making authority'' is an
individual who can reasonably be expected to speak affirmatively on
behalf of the entity he or she represents and to commit that entity to a
chosen course of action.
(b) A representative with ``expertise relating to [a] program,
service or activity'' includes a person who is an official with a One-
stop partner program and a person with documented expertise relating to
the One-stop partner program.
Sec. 661.205 What is the role of the State Board?
The State Board must assist the Governor in the:
(a) Development of the State Plan;
(b) Development and continuous improvement of a Statewide system of
activities that are funded under subtitle B of title I of WIA, or
carried out through the One-Stop delivery system, including--
(1) Development of linkages in order to assure coordination and
nonduplication among the programs and activities carried out by One-Stop
partners, including, as necessary, addressing any impasse situations in
the development of the local Memorandum of Understanding; and
(2) Review of local plans;
(c) Commenting at least once annually on the measures taken under
section 113(b)(14) of the Carl D. Perkins Vocational and Technical
Education Act;
(d) Designation of local workforce investment areas,
(e) Development of allocation formulas for the distribution of funds
for adult employment and training activities and youth activities to
local areas, as permitted under WIA sections 128(b)(3)(B) and
133(b)(3)(B);
(f) Development and continuous improvement of comprehensive State
performance measures, including State adjusted levels of performance, to
assess the effectiveness of the workforce investment activities in the
State, as required under WIA section 136(b);
(g) Preparation of the annual report to the Secretary described in
WIA section 136(d);
(h) Development of the Statewide employment statistics system
described in section 15(e) of the Wagner-Peyser Act; and
(i) Development of an application for an incentive grant under WIA
section 503. (WIA sec. 111(d).)
Sec. 661.207 How does the State Board meet its requirement to conduct
business in an open manner under the ``sunshine provision'' of WIA
section 111(g)?
The State Board must conduct its business in an open manner as
required by WIA section 111(g), by making available to the public, on a
regular basis through open meetings, information about the activities of
the State Board. This includes information about the State Plan prior to
submission of the
[[Page 40]]
plan; information about membership; the development of significant
policies, interpretations, guidelines and definitions; and, on request,
minutes of formal meetings of the State Board.
Sec. 661.210 Under what circumstances may the Governor select an
alternative entity in place of the State Workforce Investment Board?
(a) The State may use any State entity that meets the requirements
of WIA section 111(e) to perform the functions of the State Board.
(b) If the State uses an alternative entity, the State workforce
investment plan must demonstrate that the alternative entity meets all
three of the requirements of WIA section 111(e). Section 111(e) requires
that such entity:
(1) Was in existence on December 31, 1997;
(2)(i) Was established under section 122 (relating to State Job
Training Coordinating Councils) or title VII (relating to State Human
Resource Investment Councils) of the Job Training Partnership Act (29
U.S.C.1501 et seq.), as in effect on December 31, 1997, or
(ii) Is substantially similar to the State Board described in WIA
section 111(a), (b), and (c) and Sec. 661.200; and
(3) Includes, at a minimum, two or more representatives of business
in the State and two or more representatives of labor organizations in
the State.
(c) If the alternative entity does not provide for representative
membership of each of the categories of required State Board membership
under WIA section 111(b), the State Plan must explain the manner in
which the State will ensure an ongoing role for any unrepresented
membership group in the workforce investment system. The State Board may
maintain an ongoing role for an unrepresented membership group,
including entities carrying out One-stop partner programs, by means such
as regularly scheduled consultations with entities within the
unrepresented membership groups, by providing an opportunity for input
into the State Plan or other policy development by unrepresented
membership groups, or by establishing an advisory committee of
unrepresented membership groups.
(d) If the membership structure of the alternative entity is
significantly changed after December 31, 1997, the entity will no longer
be eligible to perform the functions of the State Board. In such case,
the Governor must establish a new State Board which meets all of the
criteria of WIA section 111(b).
(e) A significant change in the membership structure includes any
significant change in the organization of the alternative entity or in
the categories of entities represented on the alternative entity which
requires a change to the alternative entity's charter or a similar
document that defines the formal organization of the alternative entity,
regardless of whether the required change to the document has or has not
been made. A significant change in the membership structure is
considered to have occurred when members are added to represent groups
not previously represented on the entity. A significant change in the
membership structure is not considered to have occurred when additional
members are added to an existing membership category, when non-voting
members are added, or when a member is added to fill a vacancy created
in an existing membership category.
(f) In 20 CFR parts 660 through 671, all references to the State
Board also apply to an alternative entity used by a State.
Sec. 661.220 What are the requirements for the submission of the
State Workforce Investment Plan?
(a) The Governor of each State must submit a State Workforce
Investment Plan (State Plan) in order to be eligible to receive funding
under title I of WIA and the Wagner-Peyser Act. The State Plan must
outline the State's five year strategy for the workforce investment
system.
(b) The State Plan must be submitted in accordance with planning
guidelines issued by the Secretary of Labor. The planning guidelines set
forth the information necessary to document the State's vision, goals,
strategies, policies and measures for the workforce investment system
(that were arrived at through the collaboration of the Governor, chief
elected officials, business
[[Page 41]]
and other parties), as well as the information required to demonstrate
compliance with WIA, and the information detailed by WIA and the WIA
regulations, including 29 CFR part 37, and the Wagner-Peyser Act and the
Wagner-Peyser regulations at 20 CFR part 652:
(c) The State Plan must contain a description of the State's
performance accountability system, and the State performance measures in
accordance with the requirements of WIA section 136 and 20 CFR part 666.
(d) The State must provide an opportunity for public comment on and
input into the development of the State Plan prior to its submission.
The opportunity for public comment must include an opportunity for
comment by representatives of business, representatives of labor
organizations, and chief elected official(s) and must be consistent with
the requirement, at WIA section 111(g), that the State Board makes
information regarding the State Plan and other State Board activities
available to the public through regular open meetings. The State Plan
must describe the State's process and timeline for ensuring a meaningful
opportunity for public comment.
(e) The Secretary reviews completed plans and must approve all plans
within ninety days of their submission, unless the Secretary determines
in writing that:
(1) The plan is inconsistent with the provisions of title I of WIA
or the WIA regulations, including 29 CFR part 37. For example, a finding
of inconsistency would be made if the Secretary and the Governor have
not reached agreement on the adjusted levels of performance under WIA
section 136(b)(3)(A), or there is not an effective strategy in place to
ensure development of a fully operational One-Stop delivery system in
the State; or
(2) The portion of the plan describing the detailed Wagner-Peyser
plan does not satisfy the criteria for approval of such plans as
provided in section 8(d) of the Wagner-Peyser Act or the Wagner-Peyser
regulations at 20 CFR part 652.
(3) A plan which is incomplete, or which does not contain sufficient
information to determine whether it is consistent with the statutory or
regulatory requirements of title I of WIA or of section 8(d) of the
Wagner-Peyser Act, will be considered to be inconsistent with those
requirements.
Sec. 661.230 What are the requirements for modification of the
State Workforce Investment Plan?
(a) The State may submit a modification of its workforce investment
plan at any time during the five-year life of the plan.
(b) Modifications are required when:
(1) Changes in Federal or State law or policy substantially change
the assumptions upon which the plan is based.
(2) There are changes in the Statewide vision, strategies, policies,
performance indicators, the methodology used to determine local
allocation of funds, reorganizations which change the working
relationship with system employees, changes in organizational
responsibilities, changes to the membership structure of the State Board
or alternative entity and similar substantial changes to the State's
workforce investment system.
(3) The State has failed to meet performance goals, and must adjust
service strategies.
(c) Modifications are required in accordance with the Wagner-Peyser
provisions at 20 CFR 652.212.
(d) Modifications to the State Plan are subject to the same public
review and comment requirements that apply to the development of the
original State Plan.
(e) State Plan modifications will be approved by the Secretary based
on the approval standard applicable to the original State Plan under
Sec. 661.220(e).
Sec. 661.240 How do the unified planning requirements apply to the
five-year strategic WIA and Wagner-Peyser plan and to other Department
of Labor plans?
(a) A State may submit to the Secretary a unified plan for any of
the programs or activities described in WIA section 501(b)(2). This
includes the following DOL programs and activities:
(1) The five-year strategic WIA and Wagner-Peyser plan;
(2) Trade adjustment assistance activities and NAFTA-TAA;
(3) Veterans' programs under 38 U.S.C. Chapter 41;
[[Page 42]]
(4) Programs authorized under State unemployment compensation laws;
(5) [Reserved]
(6) Senior Community Service Employment Programs under title V of
the Older Americans Act.
(b) For purposes of paragraph (a) of this section:
(1) A State may submit, as part of the unified plan, any plan,
application form or any other similar document, that is required as a
condition for the approval of Federal funding under the applicable
program. These plans include such things as the WIA plan. They do not
include jointly executed funding instruments, such as grant agreements,
or Governor/Secretary Agreements or items such as corrective actions
plans.
(2) A state may submit a unified plan meeting the requirements of
the Interagency guidance entitled State Unified Plan, Planning Guidance
for State Unified Plans Under Section 501 of the Workforce Investment
Act of 1998, in lieu of completing the individual State planning
guidelines of the programs covered by the unified plan.
(c) A State which submits a unified plan covering an activity or
program described in subsection 501(b) of WIA that is approved under
subsection 501(d) of the Act will not be required to submit any other
plan or application in order to receive Federal funds to carry out the
activity or program.
(d) Each portion of a unified plan submitted under paragraph (a) of
this section is subject to the particular requirements of Federal law
authorizing the program. All grantees are still subject to such things
as reporting and record-keeping requirements, corrective action plan
requirements and other generally applicable requirements.
(e) A unified plan must contain the information required by WIA
section 501(c) and will be approved in accordance with the requirements
of WIA section 501(d).
[65 FR 49390, Aug. 11, 2000, as amended at 71 FR 35525, June 21, 2006]
Sec. 661.250 What are the requirements for designation of local
workforce investment areas?
(a) The Governor must designate local workforce investment areas in
order for the State to receive funding under title I of WIA.
(b) The Governor must take into consideration the factors described
in WIA section 116(a)(1)(B) in making designations of local areas. Such
designation must be made in consultation with the State Board, and after
consultation with chief elected officials. The Governor must also
consider comments received through the public comment process described
in the State workforce investment plan under Sec. 661.220(d).
(c) The Governor may approve a request for designation as a
workforce investment area from any unit of general local government,
including a combination of such units, if the State Board determines
that the area meets the requirements of WIA section 116(a)(1)(B) and
recommends designation.
(d) The Governor of any State that was a single service delivery
area State under the Job Training Partnership Act as of July 1, 1998,
and only those States, may designate the State as a single local
workforce investment area State. (WIA sec.116.)
Sec. 661.260 What are the requirements for automatic designation of
workforce investment areas relating to units of local government with
a population of 500,000 or more?
The requirements for automatic designation relating to units of
local government with a population of 500,000 or more and to rural
concentrated employment programs are contained in WIA section 116(a)(2).
The Governor has authority to determine the source of population data to
use in making these designations.
Sec. 661.270 What are the requirements for temporary and subsequent
designation of workforce investment areas relating to areas that had been
designated as service delivery areas under JTPA?
The requirements for temporary and subsequent designation relating
to
[[Page 43]]
areas that had been designated as service delivery areas under JTPA are
contained in WIA section 116(a)(3).
Sec. 661.280 What right does an entity have to appeal the Governor's
decision rejecting a request for designation as a workforce investment
area?
(a) A unit of local government (or combination of units) or a rural
concentrated employment program grant recipient (as described at WIA
section 116(a)(2)(B), which has requested but has been denied its
request for designation as a workforce investment area under Sec. Sec.
661.260 through 661.270, may appeal the decision to the State Board, in
accordance with appeal procedures established in the State Plan.
(b) If a decision on the appeal is not rendered in a timely manner
or if the appeal to the State Board does not result in designation, the
entity may request review by the Secretary of Labor, under the
procedures set forth at 20 CFR 667.640(a).
(c) The Secretary may require that the area be designated as a
workforce investment area, if the Secretary determines that:
(1) The entity was not accorded procedural rights under the State
appeals process; or
(2) The area meets the automatic designation requirements at WIA
section 116(a)(2) or the temporary and subsequent designation
requirements at WIA section 116(a)(3), as appropriate.
Sec. 661.290 Under what circumstances may States require Local Boards
to take part in regional planning activities?
(a) The State may require Local Boards within a designated region
(as defined at 20 CFR 660.300) to:
(1) Participate in a regional planning process that results in
regional performance measures for workforce investment activities under
title I of WIA. Regions that meet or exceed the regional performance
measures may receive regional incentive grants;
(2) Share, where feasible, employment and other types of information
that will assist in improving the performance of all local areas in the
designated region on local performance measures; and
(3) Coordinate the provision of WIA title I services, including
supportive services such as transportation, across the boundaries of
local areas within the designated region.
(b) Two or more States may designate a labor market area, economic
development region, or other appropriate contiguous subarea of the
States as an interstate region. In such cases, the States may jointly
exercise the State's functions described in this section.
(c) Designation of intrastate regions and interstate regions and
their corresponding performance measures must be described in the
respective State Plan(s). For interstate regions, the roles of the
respective Governors, State Boards and Local Boards must be described in
the respective State Plans.
(d) Unless agreed to by all affected chief elected officials and the
Governor, these regional planning activities may not substitute for or
replace the requirements applicable to each local area under other
provisions of the WIA. (WIA sec. 116(a).)
Subpart C_Local Governance Provisions
Sec. 661.300 What is the Local Workforce Investment Board?
(a) The Local Workforce Investment Board (Local Board) is appointed
by the chief elected official in each local area in accordance with
State criteria established under WIA section 117(b), and is certified by
the Governor every two years, in accordance with WIA section 117(c)(2).
(b) In partnership with the chief elected official(s), the Local
Board sets policy for the portion of the Statewide workforce investment
system within the local area.
(c) The Local Board and the chief elected official(s) may enter into
an agreement that describes the respective roles and responsibilities of
the parties.
(d) The Local Board, in partnership with the chief elected official,
develops the local workforce investment plan and performs the functions
described in WIA section 117(d). (WIA sec.117 (d).)
(e) If a local area includes more than one unit of general local
government in
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accordance with WIA section 117 (c)(1)(B), the chief elected officials
of such units may execute an agreement to describe their
responsibilities for carrying out the roles and responsibilities. If,
after a reasonable effort, the chief elected officials are unable to
reach agreement, the Governor may appoint the members of the local board
from individuals nominated or recommended as specified in WIA section
117(b).
(f) If the State Plan indicates that the State will be treated as a
local area under WIA title I, the Governor may designate the State Board
to carry out any of the roles of the Local Board.
Sec. 661.305 What is the role of the Local Workforce Investment Board?
(a) WIA section 117(d) specifies that the Local Board is responsible
for:
(1) Developing the five-year local workforce investment plan (Local
Plan) and conducting oversight of the One-Stop system, youth activities
and employment and training activities under title I of WIA, in
partnership with the chief elected official;
(2) Selecting One-Stop operators with the agreement of the chief
elected official;
(3) Selecting eligible youth service providers based on the
recommendations of the youth council, and identifying eligible providers
of adult and dislocated worker intensive services and training services,
and maintaining a list of eligible providers with performance and cost
information, as required in 20 CFR part 663, subpart E;
(4) Developing a budget for the purpose of carrying out the duties
of the Local Board, subject to the approval of the chief elected
official;
(5) Negotiating and reaching agreement on local performance measures
with the chief elected official and the Governor;
(6) Assisting the Governor in developing the Statewide employment
statistics system under the Wagner-Peyser Act;
(7) Coordinating workforce investment activities with economic
development strategies and developing employer linkages; and
(8) Promoting private sector involvement in the Statewide workforce
investment system through effective connecting, brokering, and coaching
activities through intermediaries such as the One-Stop operator in the
local area or through other organizations, to assist employers in
meeting hiring needs.
(b) The Local Board, in cooperation with the chief elected official,
appoints a youth council as a subgroup of the Local Board and
coordinates workforce and youth plans and activities with the youth
council, in accordance with WIA section 117(h) and Sec. 661.335.
(c) Local Boards which are part of a State designated region for
regional planning must carry out the regional planning responsibilities
required by the State in accordance with WIA section 116(c) and Sec.
661.290. (WIA sec. 117.)
Sec. 661.307 How does the Local Board meet its requirement to conduct
business in an open manner under the ``sunshine provision'' of WIA
section 117(e)?
The Local Board must conduct its business in an open manner as
required by WIA section 117(e), by making available to the public, on a
regular basis through open meetings, information about the activities of
the Local Board. This includes information about the Local Plan prior to
submission of the plan; information about membership; the development of
significant policies, interpretations, guidelines and definitions; and,
on request, minutes of formal meetings of the Local Board.
Sec. 661.310 Under what limited conditions may a Local Board directly
be a provider of core services, intensive services, or training services,
or act as a One-Stop Operator?
(a) A Local Board may not directly provide core services, or
intensive services, or be designated or certified as a One-Stop
operator, unless agreed to by the chief elected official and the
Governor.
(b) A Local Board is prohibited from providing training services,
unless the Governor grants a waiver in accordance with the provisions in
WIA section 117(f)(1). The waiver shall apply for not more than one
year. The waiver may be renewed for additional periods, but for not more
than one additional year at a time.
[[Page 45]]
(c) The restrictions on the provision of core, intensive, and
training services by the Local Board, and designation or certification
as One-Stop operator, also apply to staff of the Local Board. (WIA sec.
117(f)(1) and (f)(2).)
Sec. 661.315 Who are the required members of the Local Workforce
Investment Boards?
(a) The membership of Local Board must be selected in accordance
with criteria established under WIA section 117(b)(1) and must meet the
requirements of WIA section 117(b)(2). The Local Board must contain two
or more members representing the categories described in WIA section
117(b)(2)(A)(ii)-(v), and special consideration must be given to the
entities identified in WIA section 117(b)(2)(A)(ii), (iv) and (v) in the
selection of members representing those categories. The Local Board must
contain at least one member representing each One-Stop partner.
(b) The membership of Local Boards may include individuals or
representatives of other appropriate entities, including entities
representing individuals with multiple barriers to employment and other
special populations, as determined by the chief elected official.
(c) Members who represent organizations, agencies or other entities
must be individuals with optimum policy making authority within the
entities they represent.
(d) A majority of the members of the Local Board must be
representatives of business in the local area. Members representing
business must be individuals who are owners, chief executive officers,
chief operating officers, or other individuals with optimum policymaking
or hiring authority. Business representatives serving on Local Boards
may also serve on the State Board.
(e) Chief elected officials must appoint the business
representatives from among individuals who are nominated by local
business organizations and business trade associations. Chief elected
officials must appoint the labor representatives from among individuals
who are nominated by local labor federations (or, for a local area in
which no employees are represented by such organizations, other
representatives of employees). (WIA sec. 117(b).)
(f) An individual may be appointed as a representative of more than
one entity if the individual meets all the criteria for representation,
including the criteria described in paragraphs (c) through (e) of this
section, for each entity.
Sec. 661.317 Who may be selected to represent a particular One-Stop
partner program on the Local Board when there is more than one partner
program entity in the local area?
When there is more than one grant recipient, administrative entity
or organization responsible for administration of funds of a particular
One-stop partner program in the local area, the chief elected official
may appoint one or more members to represent all of those particular
partner program entities. In making such appointments, the local elected
official may solicit nominations from the partner program entities.
Sec. 661.320 Who must chair a Local Board?
The Local Board must elect a chairperson from among the business
representatives on the board. (WIA sec. 117(b)(5).)
Sec. 661.325 What criteria will be used to establish the membership of
the Local Board?
The Local Board is appointed by the chief elected official(s) in the
local area in accordance with State criteria established under WIA
section 117(b), and is certified by the Governor every two years, in
accordance with WIA section 117(c)(2). The criteria for certification
must be described in the State Plan. (WIA sec. 117(c).)
Sec. 661.330 Under what circumstances may the State use an alternative
entity as the Local Workforce Investment Board?
(a) The State may use any local entity that meets the requirements
of WIA section 117(i) to perform the functions of the Local Board. WIA
section 117(i) requires that such entity:
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(1) Was established to serve the local area (or the service delivery
area that most closely corresponds to the local area);
(2) Was in existence on December 31, 1997;
(3)(i) Is a Private Industry Council established under section 102
of the Job Training Partnership Act, as in effect on December 31, 1997;
or
(ii) Is substantially similar to the Local Board described in WIA
section 117 (a), (b), and (c) and (h)(1) and (2); and,
(4) Includes, at a minimum, two or more representatives of business
in the local area and two or more representatives of labor organizations
nominated by local labor federations or employees in the local area.
(b)(1) If the Governor certifies an alternative entity to perform
the functions of the Local Board; the State workforce investment plan
must demonstrate that the alternative entity meets the requirements of
WIA section 117(i), set forth in paragraph (a) of this section.
(2) If the alternative entity does not provide for representative
membership of each of the categories of required Local Board membership
under WIA section 117(b), including all of the One-stop partner
programs, the local workforce investment plan must explain the manner in
which the Local Board will ensure an ongoing role for the unrepresented
membership group in the local workforce investment system.
(3) The Local Board may provide an ongoing role for an unrepresented
membership group, including entities carrying out One-stop partner
programs, by means such as regularly scheduled consultations with
entities within the unrepresented membership groups, by providing an
opportunity for input into the local plan or other policy development by
unrepresented membership groups, or by establishing an advisory
committee of unrepresented membership groups. The Local Board must enter
into good faith negotiations over the terms of the MOU with all entities
carrying out One-stop partner programs, including programs not
represented on the alternative entity.
(c) If the membership structure of an alternative entity is
significantly changed after December 31, 1997, the entity will no longer
be eligible to perform the functions of the Local Board. In such case,
the chief elected official(s) must establish a new Local Board which
meets all of the criteria of WIA section 117(a), (b), and (c) and (h)(1)
and (2).
(d) A significant change in the membership structure includes any
significant change in the organization of the alternative entity or in
the categories of entities represented on the alternative entity which
requires a change to the alternative entity's charter or a similar
document that defines the formal organization of the alternative entity,
regardless of whether the required change to the document has or has not
been made. A significant change in the membership structure is
considered to have occurred when members are added to represent groups
not previously represented on the entity. A significant change in the
membership structure is not considered to have occurred when additional
members are added to an existing membership category, when non-voting
members (including a Youth Council) are added, or when a member is added
to fill a vacancy created in an existing membership category.
(e) In 20 CFR parts 660 through 671, all references to the Local
Board must be deemed to also apply to an alternative entity used by a
local area. (WIA sec. 117(i).)
Sec. 661.335 What is a youth council, and what is its relationship to
the Local Board?
(a) A youth council must be established as a subgroup within each
Local Board.
(b) The membership of each youth council must include:
(1) Members of the Local Board, such as educators, which may include
special education personnel, employers, and representatives of human
service agencies, who have special interest or expertise in youth
policy;
(2) Members who represent service agencies, such as juvenile justice
and local law enforcement agencies;
(3) Members who represent local public housing authorities;
[[Page 47]]
(4) Parents of eligible youth seeking assistance under subtitle B of
title I of WIA;
(5) Individuals, including former participants, and members who
represent organizations, that have experience relating to youth
activities; and
(6) Members who represent the Job Corps, if a Job Corps Center is
located in the local area represented by the council.
(c) Youth councils may include other individuals, who the chair of
the Local Board, in cooperation with the chief elected official,
determines to be appropriate.
(d) Members of the youth council who are not members of the Local
Board must be voting members of the youth council and nonvoting members
of the Local Board.
Sec. 661.340 What are the responsibilities of the youth council?
The youth council is responsible for:
(a) Coordinating youth activities in a local area;
(b) Developing portions of the local plan related to eligible youth,
as determined by the chairperson of the Local Board;
(c) Recommending eligible youth service providers in accordance with
WIA section 123, subject to the approval of the Local Board;
(d) Conducting oversight with respect to eligible providers of youth
activities in the local area, subject to the approval of the Local
Board; and
(e) Carrying out other duties, as authorized by the chairperson of
the Local Board, such as establishing linkages with educational agencies
and other youth entities.
Sec. 661.345 What are the requirements for the submission of the local
workforce investment plan?
(a) WIA section 118 requires that each Local Board, in partnership
with the appropriate chief elected officials, develops and submits a
comprehensive five-year plan to the Governor which identifies and
describes certain policies, procedures and local activities that are
carried out in the local area, and that is consistent with the State
Plan.
(b) The Local Board must provide an opportunity for public comment
on and input into the development of the local workforce investment plan
prior to its submission, and the opportunity for public comment on the
local plan must:
(1) Make copies of the proposed local plan available to the public
(through such means as public hearings and local news media);
(2) Include an opportunity for comment by members of the Local Board
and members of the public, including representatives of business and
labor organizations;
(3) Provide at least a thirty (30) day period for comment, beginning
on the date on which the proposed plan is made available, prior to its
submission to the Governor; and
(4) Be consistent with the requirement, in WIA section 117(e), that
the Local Board make information about the plan available to the public
on a regular basis through open meetings.
(c) The Local Board must submit any comments that express
disagreement with the plan to the Governor along with the plan.
Sec. 661.350 What are the contents of the local workforce investment
plan?
(a) The local workforce investment plan must meet the requirements
of WIA section 118(b). The plan must include:
(1) An identification of the workforce investment needs of
businesses, job-seekers, and workers in the local area;
(2) An identification of current and projected employment
opportunities and job skills necessary to obtain such opportunities;
(3) A description of the One-Stop delivery system to be established
or designated in the local area, including:
(i) How the Local Board will ensure continuous improvement of
eligible providers of services and ensure that such providers meet the
employment needs of local employers and participants; and
(ii) A copy of the local Memorandum(s) of Understanding between the
Local Board and each of the One-Stop partners concerning the operation
of the local One-Stop delivery system;
[[Page 48]]
(4) A description of the local levels of performance negotiated with
the Governor and the chief elected official(s) to be used by the Local
Board for measuring the performance of the local fiscal agent (where
appropriate), eligible providers, and the local One-Stop delivery
system;
(5) A description and assessment of the type and availability of
adult and dislocated worker employment and training activities in the
local area, including a description of the local ITA system and the
procedures for ensuring that exceptions to the use of ITA's, if any, are
justified under WIA section 134(d)(4)(G)(ii) and 20 CFR 663.430;
(6) A description of how the Local Board will coordinate local
activities with Statewide rapid response activities;
(7) A description and assessment of the type and availability of
youth activities in the local area, including an identification of
successful providers of such activities;
(8) A description of the process used by the Local Board to provide
opportunity for public comment, including comment by representatives of
business and labor organizations, and input into the development of the
local plan, prior to the submission of the plan;
(9) An identification of the fiscal agent, or entity responsible for
the disbursal of grant funds;
(10) A description of the competitive process to be used to award
grants and contracts for activities carried out under this subtitle I of
WIA, including the process to be used to procure training services that
are made as exceptions to the Individual Training Account process (WIA
section 134(d)(4)(G)),
(11) A description of the criteria to be used by the Governor and
the Local Board, under 20 CFR 663.600, to determine whether funds
allocated to a local area for adult employment and training activities
under WIA sections 133(b)(2)(A) or (3) are limited, and the process by
which any priority will be applied by the One-Stop operator;
(12) In cases where an alternate entity functions as the Local
Board, the information required at Sec. 661.330(b), and
(13) Such other information as the Governor may require.
(b) The Governor must review completed plans and must approve all
such plans within ninety days of their submission, unless the Governor
determines in writing that:
(1) There are deficiencies identified in local workforce investment
activities carried out under this subtitle that have not been
sufficiently addressed; or
(2) The plan does not comply with title I of WIA and the WIA
regulations, including the required consultations, the public comment
provisions, and the nondiscrimination requirements of 29 CFR part 37.
(c) In cases where the State is a single local area:
(1) The Secretary performs the roles assigned to the Governor as
they relate to local planning activities.
(2) The Secretary issues planning guidance for such States.
(3) The requirements found in WIA and in the WIA regulations for
consultation with chief elected officials apply to the development of
State and local plans and to the development and operation of the One-
Stop delivery system.
(d) During program year 2000, if a local plan does not contain all
of the elements described in paragraph (a) of this section, the Governor
may approve a local plan on a transitional basis. A transitional
approval under this paragraph is considered to be a written
determination that the local plan is not approved under paragraph (b) of
this section.
Sec. 661.355 When must a local plan be modified?
The Governor must establish procedures governing the modification of
local plans. Situations in which modifications may be required by the
Governor include significant changes in local economic conditions,
changes in the financing available to support WIA title I and partner-
provided WIA services, changes to the Local Board structure, or a need
to revise strategies to meet performance goals.
[[Page 49]]
Subpart D_Waivers and Work-Flex Waivers
Sec. 661.400 What is the purpose of the General Statutory and Regulatory
Waiver Authority provided at section 189(i)(4) of the Workforce Investment
Act?
(a) The purpose of the general statutory and regulatory waiver
authority is to provide flexibility to States and local areas and
enhance their ability to improve the statewide workforce investment
system.
(b) A waiver may be requested to address impediments to the
implementation of a strategic plan, including the continuous improvement
strategy, consistent with the key reform principles of WIA. These key
reform principles include:
(1) Streamlining services and information to participants through a
One-Stop delivery system;
(2) Empowering individuals to obtain needed services and information
to enhance their employment opportunities;
(3) Ensuring universal access to core employment-related services;
(4) Increasing accountability of States, localities and training
providers for performance outcomes;
(5) Establishing a stronger role for Local Boards and the private
sector;
(6) Providing increased State and local flexibility to implement
innovative and comprehensive workforce investment systems; and
(7) Improving youth programs through services which emphasize
academic and occupational learning.
Sec. 661.410 What provisions of WIA and the Wagner-Peyser Act may be
waived, and what provisions may not be waived?
(a) The Secretary may waive any of the statutory or regulatory
requirements of subtitles B and E of title I of WIA, except for
requirements relating to:
(1) Wage and labor standards;
(2) Non-displacement protections;
(3) Worker rights;
(4) Participation and protection of workers and participants;
(5) Grievance procedures and judicial review;
(6) Nondiscrimination;
(7) Allocation of funds to local areas;
(8) Eligibility of providers or participants;
(9) The establishment and functions of local areas and local boards;
(10) Procedures for review and approval of State and Local plans;
and
(b) The Secretary may waive any of the statutory or regulatory
requirements of sections 8 through 10 of the Wagner-Peyser Act (29
U.S.C. 49g-49i) except for requirements relating to:
(1) The provision of services to unemployment insurance claimants
and veterans; and
(2) Universal access to the basic labor exchange services without
cost to job seekers.
(c) The Secretary does not intend to waive any of the statutory or
regulatory provisions essential to the key reform principles embodied in
the Workforce Investment Act, described in Sec. 661.400, except in
extremely unusual circumstances where the provision can be demonstrated
as impeding reform. (WIA sec. 189(i).)
Sec. 661.420 Under what conditions may a Governor request, and the
Secretary approve, a general waiver of statutory or regulatory requirements
under WIA section 189(i)(4)?
(a) A Governor may request a general waiver in consultation with
appropriate chief elected officials:
(1) By submitting a waiver plan which may accompany the State's WIA
5-year strategic Plan; or
(2) After a State's WIA Plan is approved, by directly submitting a
waiver plan.
(b) A Governor's waiver request may seek waivers for the entire
State or for one or more local areas.
(c) A Governor requesting a general waiver must submit to the
Secretary a plan to improve the Statewide workforce investment system
that:
(1) Identifies the statutory or regulatory requirements for which a
waiver is requested and the goals that the State or local area, as
appropriate, intends to achieve as a result of the waiver and how those
goals relate to the Strategic Plan goals;
(2) Describes the actions that the State or local area, as
appropriate, has undertaken to remove State or local statutory or
regulatory barriers;
[[Page 50]]
(3) Describes the goals of the waiver and the expected programmatic
outcomes if the request is granted;
(4) Describes the individuals affected by the waiver; and
(5) Describes the processes used to:
(i) Monitor the progress in implementing the waiver;
(ii) Provide notice to any Local Board affected by the waiver;
(iii) Provide any Local Board affected by the waiver an opportunity
to comment on the request; and
(iv) Ensure meaningful public comment, including comment by business
and organized labor, on the waiver.
(d) The Secretary issues a decision on a waiver request within 90
days after the receipt of the original waiver request.
(e) The Secretary will approve a waiver request if and only to the
extent that:
(1) The Secretary determines that the requirements for which a
waiver is requested impede the ability of either the State or local area
to implement the State's plan to improve the Statewide workforce
investment system;
(2) The Secretary determines that the waiver plan meets all of the
requirements of WIA section 189(i)(4) and Sec. Sec. 661.400 through
661.420; and
(3) The State has executed a Memorandum of Understanding with the
Secretary requiring the State to meet, or ensure that the local area
meets, agreed-upon outcomes and to implement other appropriate measures
to ensure accountability.
(f) The Secretary will issue guidelines under which the States may
request general waivers of WIA and Wagner-Peyser requirements. (WIA sec.
189(i).)
Sec. 661.430 Under what conditions may the Governor submit a Workforce
Flexibility Plan?
(a) A State may submit to the Secretary, and the Secretary may
approve, a workforce flexibility (work-flex) plan under which the State
is authorized to waive, in accordance with the plan:
(1) Any of the statutory or regulatory requirements under title I of
WIA applicable to local areas, if the local area requests the waiver in
a waiver application, except for:
(i) Requirements relating to the basic purposes of title I of WIA;
(ii) Wage and labor standards;
(iii) Grievance procedures and judicial review;
(iv) Nondiscrimination;
(v) Eligibility of participants;
(vi) Allocation of funds to local areas;
(vii) Establishment and functions of local areas and local boards;
(viii) Review and approval of local plans;
(ix) Worker rights, participation, and protection; and
(x) Any of the statutory provisions essential to the key reform
principles embodied in the Workforce Investment Act, described in Sec.
661.400.
(2) Any of the statutory or regulatory requirements applicable to
the State under section 8 through 10 of the Wagner-Peyser Act (29 U.S.C.
49g-49i), except for requirements relating to:
(i) The provision of services to unemployment insurance claimants
and veterans; and
(ii) Universal access to basic labor exchange services without cost
to job seekers; and
(3) Any of the statutory or regulatory requirements under the Older
Americans Act of 1965 (OAA) (42 U.S.C. 3001 et seq.), applicable to
State agencies on aging with respect to activities carried out using
funds allotted under OAA section 506(a)(3) (42 U.S.C. 3056d(a)(3)),
except for requirements relating to:
(i) The basic purposes of OAA;
(ii) Wage and labor standards;
(iii) Eligibility of participants in the activities; and
(iv) Standards for agreements.
(b) A State's workforce flexibility plan may accompany the State's
five-year Strategic Plan or may be submitted separately. If it is
submitted separately, the workforce flexibility plan must identify
related provisions in the State's five-year Strategic Plan.
(c) A workforce flexibility plan submitted under paragraph (a) of
this section must include descriptions of:
(1) The process by which local areas in the State may submit and
obtain State approval of applications for waivers;
(2) The statutory and regulatory requirements of title I of WIA that
are
[[Page 51]]
likely to be waived by the State under the workforce flexibility plan;
(3) The statutory and regulatory requirements of sections 8 through
10 of the Wagner-Peyser Act that are proposed for waiver, if any;
(4) The statutory and regulatory requirements of the Older Americans
Act of 1965 that are proposed for waiver, if any;
(5) The outcomes to be achieved by the waivers described in
paragraphs (c)(1) to (4) of this section including, where appropriate,
revisions to adjusted levels of performance included in the State or
local plan under title I of WIA; and
(6) The measures to be taken to ensure appropriate accountability
for Federal funds in connection with the waivers.
(d) The Secretary may approve a workforce flexibility plan for a
period of up to five years.
(e) Before submitting a workforce flexibility plan to the Secretary
for approval, the State must provide adequate notice and a reasonable
opportunity for comment on the proposed waiver requests under the
workforce flexibility plan to all interested parties and to the general
public.
(f) The Secretary will issue guidelines under which States may
request designation as a work-flex State.
Sec. 661.440 What limitations apply to the State's Workforce Flexibility
Plan authority under WIA?
(a)(1) Under work-flex waiver authority a State must not waive the
WIA, Wagner-Peyser or Older Americans Act requirements which are
excepted from the work-flex waiver authority and described in Sec.
661.430(a).
(2) Requests to waive statutory and regulatory requirements of title
I of WIA applicable at the State level may not be granted under work-
flex waiver authority granted to a State. Such requests may only be
granted by the Secretary under the general waiver authority described at
Sec. Sec. 661.410 through 661.420.
(b) As required in Sec. 661.430(c)(5), States must address the
outcomes to result from work-flex waivers as part of its workforce
flexibility plan. Once approved, a State's work-flex designation is
conditioned on the State demonstrating it has met the agreed-upon
outcomes contained in its workforce flexibility plan.
PART 662_DESCRIPTION OF THE ONE-STOP SYSTEM UNDER TITLE I OF
THE WORKFORCE INVESTMENT ACT--Table of Contents
Subpart A_General Description of the One-Stop Delivery System
Sec.
662.100 What is the One-Stop delivery system?
Subpart B_One-Stop Partners and the Responsibilities of Partners
662.200 Who are the required One-Stop partners?
662.210 What other entities may serve as One-Stop partners?
662.220 What entity serves as the One-Stop partner for a particular
program in the local area?
662.230 What are the responsibilities of the required One-Stop partners?
662.240 What are a program's applicable core services?
662.250 Where and to what extent must required One-Stop partners make
core services available?
662.260 What services, in addition to the applicable core services, are
to be provided by One-Stop partners through the One-Stop
delivery system?
662.270 How are the costs of providing services through the One-Stop
delivery system and the operating costs of the system to be
funded?
662.280 Does title I require One-Stop partners to use their funds for
individuals who are not eligible for the partner's program or
for services that are not authorized under the partner's
program?
Subpart C_Memorandum of Understanding for the One-Stop Delivery System
662.300 What is the Memorandum of Understanding (MOU)?
662.310 Is there a single MOU for the local area or are there to be
separate MOU's between the Local Board and each partner?
Subpart D_One-Stop Operators
662.400 Who is the One-Stop operator?
662.410 How is the One-Stop operator selected?
[[Page 52]]
662.420 Under what limited conditions may the Local Board be designated
or certified as the One-Stop operator?
662.430 Under what conditions may One-Stop operators designated to
operate in a One-Stop delivery system established prior to the
enactment of WIA be designated to continue to act as a One-
Stop operator under WIA without meeting the requirements of
Sec. 662.410(b)?
Authority: Sec. 506(c), Pub. L. 105-220; 20 U.S.C. 9276(c).
Source: 65 FR 49398, Aug. 11, 2000, unless otherwise noted.
Subpart A_General Description of the One-Stop Delivery System
Sec. 662.100 What is the One-Stop delivery system?
(a) In general, the One-Stop delivery system is a system under which
entities responsible for administering separate workforce investment,
educational, and other human resource programs and funding streams
(referred to as One-Stop partners) collaborate to create a seamless
system of service delivery that will enhance access to the programs'
services and improve long-term employment outcomes for individuals
receiving assistance.
(b) Title I of WIA assigns responsibilities at the local, State and
Federal level to ensure the creation and maintenance of a One-Stop
delivery system that enhances the range and quality of workforce
development services that are accessible to individuals seeking
assistance.
(c) The system must include at least one comprehensive physical
center in each local area that must provide the core services specified
in WIA section 134(d)(2), and must provide access to other programs and
activities carried out by the One-Stop partners.
(d) While each local area must have at least one comprehensive
center (and may have additional comprehensive centers), WIA section
134(c) allows for arrangements to supplement the center. These
arrangements may include:
(1) A network of affiliated sites that can provide one or more
partners' programs, services and activities at each site;
(2) A network of One-Stop partners through which each partner
provides services that are linked, physically or technologically, to an
affiliated site that assures individuals are provided information on the
availability of core services in the local area; and
(3) Specialized centers that address specific needs, such as those
of dislocated workers.
(e) The design of the local area's One-Stop delivery system,
including the number of comprehensive centers and the supplementary
arrangements, must be described in the local plan and be consistent with
the Memorandum of Understanding executed with the One-Stop partners.
Subpart B_One-Stop Partners and the Responsibilities of Partners
Sec. 662.200 Who are the required One-Stop partners?
(a) WIA section 121(b)(1) identifies the entities that are required
partners in the local One-Stop systems.
(b) The required partners are the entities that are responsible for
administering the following programs and activities in the local area:
(1) Programs authorized under title I of WIA, serving:
(i) Adults;
(ii) Dislocated workers;
(iii) Youth;
(iv) Job Corps;
(v) Native American programs;
(vi) Migrant and seasonal farmworker programs; and
(vii) Veterans' workforce programs; (WIA sec. 121(b)(1)(B)(i));
(2) Programs authorized under the Wagner-Peyser Act (29 U.S.C. 49 et
seq.); (WIA sec. 121(b)(1)(B)(ii));
(3) Adult education and literacy activities authorized under title
II of WIA; (WIA sec. 121(b)(1)(B)(iii));
(4) Programs authorized under parts A and B of title I of the
Rehabilitation Act (29 U.S.C. 720 et seq.); (WIA sec. 121(b)(1)(B)(iv));
(5) [Reserved]
(6) Senior community service employment activities authorized under
title V of the Older Americans Act of 1965 (42 U.S.C. 3056 et seq.);
(WIA sec. 121(b)(1)(B)(vi));
[[Page 53]]
(7) Postsecondary vocational education activities under the Carl D.
Perkins Vocational and Applied Technology Education Act (20 U.S.C. 2301
et seq.); (WIA sec. 121(b)(1)(B)(vii));
(8) Trade Adjustment Assistance and NAFTA Transitional Adjustment
Assistance activities authorized under chapter 2 of title II of the
Trade Act of 1974, as amended (19 U.S.C. 2271 et seq.) and Section
123(c)(2) of the Trade Adjustment Assistance Reform Act of 2002 (Pub. L.
107-210), respectively; see (WIA sec. 121(b)(1)(B)(viii));
(9) Activities authorized under chapter 41 of title 38, U.S.C.
(local veterans' employment representatives and disabled veterans
outreach programs); (WIA sec. 121(b)(1)(B)(ix));
(10) Employment and training activities carried out under the
Community Services Block Grant (42 U.S.C. 9901 et seq.); (WIA sec.
121(b)(1)(B)(x));
(11) Employment and training activities carried out by the
Department of Housing and Urban Development; (WIA sec.
121(b)(1)(B)(xi)); and
(12) Programs authorized under State unemployment compensation laws
(in accordance with applicable Federal law); (WIA sec.
121(b)(1)(B)(xii).)
[65 FR 49398, Aug. 11, 2000, as amended at 71 FR 35523, June 21, 2006]
Sec. 662.210 What other entities may serve as One-Stop partners?
(a) WIA provides that other entities that carry out a human resource
program, including Federal, State, or local programs and programs in the
private sector may serve as additional partners in the One-Stop system
if the Local Board and chief elected official(s) approve the entity's
participation.
(b) Additional partners may include:
(1) TANF programs authorized under part A of title IV of the Social
Security Act (42 U.S.C. 601 et seq.);
(2) Employment and training programs authorized under section
6(d)(4) of the Food Stamp Act of 1977 (7 U.S.C. 2015(d)(4));
(3) Work programs authorized under section 6(o) of the Food Stamp
Act of 1977 (7 U.S.C. 2015(o));
(4) Programs authorized under the National and Community Service Act
of 1990 (42 U.S.C. 12501 et seq.); and
(5) Other appropriate Federal, State or local programs, including
programs related to transportation and housing and programs in the
private sector. (WIA sec. 121(b)(2).)
(c) The State may require that one or more of the programs
identified in paragraph (b) of this section be included as a partner in
all of the local One-Stop delivery systems in the State.
Sec. 662.220 What entity serves as the One-Stop partner for a particular
program in the local area?
(a) The ``entity'' that carries out the program and activities
listed in Sec. Sec. 662.200 and 662.210 and, therefore, serves as the
One-Stop partner is the grant recipient, administrative entity or
organization responsible for administering the funds of the specified
program in the local area. The term ``entity'' does not include the
service providers that contract with or are subrecipients of the local
administrative entity. For programs that do not include local
administrative entities, the responsible State Agency should be the
partner. Specific entities for particular programs are identified in
paragraph (b) of this section. If a program or activity listed in Sec.
662.200 is not carried out in a local area, the requirements relating to
a required One-Stop partner are not applicable to such program or
activity in that local One-Stop system.
(b)(1) For title II of WIA, the entity that carries out the program
for the purposes of paragraph (a) is the State eligible entity. The
State eligible entity may designate an eligible provider, or a
consortium of eligible providers, as the ``entity'' for this purpose;
(2) For title I, Part A, of the Rehabilitation Act, the entity that
carries out the program for the purposes of paragraph (a) of this
section is the designated State agency or designated unit specified
under section 101(a)(2) that is primarily concerned with vocational
rehabilitation, or vocational and other rehabilitation, of individuals
with disabilities; and
(3) Under WIA, the national programs, including Job Corps, the WIA
Indian and Native American program, the Migrant and Seasonal Farmworkers
program, and the Veterans'
[[Page 54]]
Workforce Investment program, are required One-Stop partners. Local
Boards must include them in the One-Stop delivery system where they are
present in their local area. In local areas where the national programs
are not present, States and Local Boards should take steps to ensure
that customer groups served by these programs have access to services
through the One-Stop delivery system.
Sec. 662.230 What are the responsibilities of the required One-Stop
partners?
All required partners must:
(a) Make available to participants through the One-Stop delivery
system the core services that are applicable to the partner's programs;
(WIA sec. 121(b)(1)(A).)
(b) Use a portion of funds made available to the partner's program,
to the extent not inconsistent with the Federal law authorizing the
partner's program, to:
(1) Create and maintain the One-Stop delivery system; and
(2) Provide core services; (WIA sec. 134(d)(1)(B).)
(c) Enter into a memorandum of understanding (MOU) with the Local
Board relating to the operation of the One-Stop system that meets the
requirements of Sec. 662.300, including a description of services, how
the cost of the identified services and operating costs of the system
will be funded, and methods for referrals (WIA sec. 121(c));
(d) Participate in the operation of the One-Stop system consistent
with the terms of the MOU and requirements of authorizing laws; (WIA
sec. 121(b)(1)(B).) and
(e) Provide representation on the Local Workforce Investment Board.
(WIA sec. 117(b)(2)(A)(vi).)
Sec. 662.240 What are a program's applicable core services?
(a) The core services applicable to any One-Stop partner program are
those services described in paragraph (b) of this section, that are
authorized and provided under the partner's program.
(b) The core services identified in section 134(d)(2) of the WIA
are:
(1) Determinations of whether the individuals are eligible to
receive assistance under subtitle B of title I of WIA;
(2) Outreach, intake (which may include worker profiling), and
orientation to the information and other services available through the
One-Stop delivery system;
(3) Initial assessment of skill levels, aptitudes, abilities, and
supportive service needs;
(4) Job search and placement assistance, and where appropriate,
career counseling;
(5) Provision of employment statistics information, including the
provision of accurate information relating to local, regional, and
national labor market areas, including--
(i) Job vacancy listings in such labor market areas;
(ii) Information on job skills necessary to obtain the listed jobs;
and
(iii) Information relating to local occupations in demand and the
earnings and skill requirements for such occupations;
(6) Provision of program performance information and program cost
information on:
(i) Eligible providers of training services described in WIA section
122;
(ii) Eligible providers of youth activities described in WIA section
123;
(iii) Providers of adult education described in title II;
(iv) Providers of postsecondary vocational education activities and
vocational education activities available to school dropouts under the
Carl D. Perkins Vocational and Applied Technology Education Act (20
U.S.C. 2301 et seq.); and
(v) Providers of vocational rehabilitation program activities
described in title I of the Rehabilitation Act of 1973 (29 U.S.C. 720 et
seq.);
(7) Provision of information on how the local area is performing on
the local performance measures and any additional performance
information with respect to the One-Stop delivery system in the local
area;
(8) Provision of accurate information relating to the availability
of supportive services, including, at a minimum, child care and
transportation, available in the local area, and referral to such
services, as appropriate;
[[Page 55]]
(9) Provision of information regarding filing claims for
unemployment compensation;
(10) Assistance in establishing eligibility for programs of
financial aid assistance for training and education programs that are
not funded under this Act and are available in the local area; and
(11) Followup services, including counseling regarding the
workplace, for participants in workforce investment activities
authorized under subtitle (B) of title I of WIA who are placed in
unsubsidized employment, for not less than 12 months after the first day
of the employment, as appropriate.
[65 FR 49398, Aug. 11, 2000, as amended at 71 FR 35523, June 21, 2006]
Sec. 662.250 Where and to what extent must required One-Stop partners
make core services available?
(a) At a minimum, the core services that are applicable to the
program of the partner under Sec. 662.220, and that are in addition to
the basic labor exchange services traditionally provided in the local
area under the Wagner-Peyser program, must be made available at the
comprehensive One-Stop center. These services must be made available to
individuals attributable to the partner's program who seek assistance at
the center. The adult and dislocated worker program partners are
required to make all of the core services listed in Sec. 662.240
available at the center in accordance with 20 CFR 663.100(b)(1).
(b) The applicable core services may be made available by the
provision of appropriate technology at the comprehensive One-Stop
center, by co-locating personnel at the center, cross-training of staff,
or through a cost reimbursement or other agreement between service
providers at the comprehensive One-Stop center and the partner, as
described in the MOU.
(c) The responsibility of the partner for the provision of core
services must be proportionate to the use of the services at the
comprehensive One-Stop center by the individuals attributable to the
partner's program. The specific method of determining each partner's
proportionate responsibility must be described in the MOU.
(d) For purposes of this part, individuals attributable to the
partner's program may include individuals who are referred through the
comprehensive One-Stop center and enrolled in the partner's program
after the receipt of core services, who have been enrolled in the
partner's program prior to receipt of the applicable core services at
the center, who meet the eligibility criteria for the partner's program
and who receive an applicable core service, or who meet an alternative
definition described in the MOU.
(e) Under the MOU, the provision of applicable core services at the
center by the One-Stop partner may be supplemented by the provision of
such services through the networks of affiliated sites and networks of
One-Stop partners described in WIA section 134(c)(2).
Sec. 662.260 What services, in addition to the applicable core
services,are to be provided by One-Stop partners through the
One-Stop delivery system?
In addition to the provision of core services, One-Stop partners
must provide access to the other activities and programs carried out
under the partner's authorizing laws. The access to these services must
be described in the local MOU. 20 CFR part 663 describes the specific
requirements relating to the provision of core, intensive, and training
services through the One-Stop system that apply to the adult and the
dislocated worker programs authorized under title I of WIA. Additional
requirements apply to the provision of all labor exchange services under
the Wagner-Peyser Act. (WIA sec. 134(c)(1)(D).)
Sec. 662.270 How are the costs of providing services through the
One-Stop delivery system and the operating costs of the system to
be funded?
The MOU must describe the particular funding arrangements for
services and operating costs of the One-Stop delivery system. Each
partner must contribute a fair share of the operating costs of the One-
Stop delivery system proportionate to the use of the system by
individuals attributable to the partner's program. There are a
[[Page 56]]
number of methods, consistent with the equirements of the relevant OMB
circulars, that may be used for allocating costs among the partners.
Some of these methodologies include allocations based on direct charges,
cost pooling, indirect cost rates and activity-based cost allocation
plans. Additional guidance relating to cost allocation methods may be
issued by the Department in consultation with the other appropriate
Federal agencies.
Sec. 662.280 Does title I require One-Stop partners to use their
funds for individuals who are not eligible for the partner's program
or for services that are not authorized under the partner's program?
No, the requirements of the partner's program continue to apply. The
Act intends to create a seamless service delivery system for individuals
seeking workforce development services by linking the One-Stop partners
in the One-Stop delivery system. While the overall effect is to provide
universal access to core services, the resources of each partner may
only be used to provide services that are authorized and provided under
the partner's program to individuals who are eligible under such
program. (WIA sec. 121(b)(1).)
Subpart C_Memorandum of Understanding for the One-Stop Delivery System
Sec. 662.300 What is the Memorandum of Understanding (MOU)?
(a) The Memorandum of Understanding (MOU) is an agreement developed
and executed between the Local Board, with the agreement of the chief
elected official, and the One-Stop partners relating to the operation of
the One-Stop delivery system in the local area.
(b) The MOU must contain the provisions required by WIA section
121(c)(2). These provisions cover services to be provided through the
One-Stop delivery system; the funding of the services and operating
costs of the system; and methods for referring individuals between the
One-Stop operators and partners. The MOU's provisions also must
determine the duration and procedures for amending the MOU, and may
contain any other provisions that are consistent with WIA title I and
the WIA regulations agreed to by the parties. (WIA sec. 121(c).)
Sec. 662.310 Is there a single MOU for the local area or are there
to be separate MOU's between the Local Board and each partner?
(a) A single ``umbrella'' MOU may be developed that addresses the
issues relating to the local One-Stop delivery system for the Local
Board, chief elected official and all partners, or the Local Board,
chief elected official and the partners may decide to enter into
separate agreements between the Local Board (with the agreement of the
chief elected official) and one or more partners. Under either approach,
the requirements described in this subpart apply. Since funds are
generally appropriated annually, financial agreements may be negotiated
with each partner annually to clarify funding of services and operating
costs of the system under the MOU.
(b) WIA emphasizes full and effective partnerships between Local
Boards, chief elected officials and One-Stop partners. Local Boards and
partners must enter into good-faith negotiations. Local Boards, chief
elected officials and partners may request assistance from a State
agency responsible for administering the partner program, the Governor,
State Board, or other appropriate parties. The State agencies, the State
Board, and the Governor may also consult with the appropriate Federal
agencies to address impasse situations after exhausting other
alternatives. The Local Board and partners must document the
negotiations and efforts that have taken place. Any failure to execute
an MOU between a Local Board and a required partner must be reported by
the Local Board and the required partner to the Governor or State Board,
and the State agency responsible for administering the partner's
program, and by the Governor or the State Board and the responsible
State agency to the Secretary of Labor and to the head of any other
Federal agency with responsibility for oversight of a partner's program.
(WIA sec. 121(c).)
[[Page 57]]
(c) If an impasse has not been resolved through the alternatives
available under this section any partner that fails to execute an MOU
may not be permitted to serve on the Local Board. In addition, any local
area in which a Local Board has failed to execute an MOU with all of the
required partners is not eligible for State incentive grants awarded on
the basis of local coordination of activities under 20 CFR
665.200(d)(2). These sanctions are in addition to, not in lieu of, any
other remedies that may be applicable to the Local Board or to each
partner for failure to comply with the statutory requirement.
Subpart D_One-Stop Operators
Sec. 662.400 Who is the One-Stop operator?
(a) The One-Stop operator is the entity that performs the role
described in paragraph (c) of this section. The types of entities that
may be selected to be the One-Stop operator include:
(1) A postsecondary educational institution;
(2) An Employment Service agency established under the Wagner-Peyser
Act on behalf of the local office of the agency;
(3) A private, nonprofit organization (including a community-based
organization);
(4) A private for-profit entity;
(5) A government agency; and
(6) Another interested organization or entity.
(b) One-Stop operators may be a single entity or a consortium of
entities and may operate one or more One-Stop centers. In addition,
there may be more than one One-Stop operator in a local area.
(c) The agreement between the Local Board and the One-Stop operator
shall specify the operator's role. That role may range between simply
coordinating service providers within the center, to being the primary
provider of services within the center, to coordinating activities
throughout the One-Stop system. (WIA sec. 121(d).)
Sec. 662.410 How is the One-Stop operator selected?
(a) The Local Board, with the agreement of the chief elected
official, must designate and certify One-Stop operators in each local
area.
(b) The One-Stop operator is designated or certified:
(1) Through a competitive process,
(2) Under an agreement between the Local Board and a consortium of
entities that includes at least three or more of the required One-Stop
partners.identified at Sec. 662.200, or
(3) Under the conditions described in Sec. Sec. 662.420 or 662.430.
(WIA sec.121(d), 121(e) and 117(f)(2))
(c) The designation or certification of the One-Stop operator must
be carried out in accordance with the ``sunshine provision'' at 20 CFR
661.307.
Sec. 662.420 Under what limited conditions may the Local Board be
designated or certified as the One-Stop operator?
(a) The Local Board may be designated or certified as the One-Stop
operator only with the agreement of the chief elected official and the
Governor.
(b) The designation or certification must be reviewed whenever the
biennial certification of the Local Board is made under 20 CFR
663.300(a). (WIA sec. 117(f)(2).)
Sec. 662.430 Under what conditions may One-Stop operators designated
to operate in a One-Stop delivery system established prior to the enactment
of WIA be designated to continue as a One-Stop operator under WIA
without meeting the requirements of Sec. 662.410(b)?
Under WIA section 121(e), the Local Board, the chief elected
official and the Governor may agree to certify an entity that has been
serving as a One-Stop operator in a One-Stop delivery system established
prior to the enactment of WIA (August 7, 1998) to continue to serve as a
One-Stop operator without meeting the requirements for designation under
Sec. 662.410(b) if the local One-Stop delivery system is modified, as
necessary, to meet the other requirements of this part, including the
requirements relating to the inclusion of One-Stop partners, the
execution of the
[[Page 58]]
MOU, and the provision of services.(WIA sec. 121(e).)
PART 663_ADULT AND DISLOCATED WORKER ACTIVITIES UNDER TITLE I OF
THE WORKFORCE INVESTMENT ACT--Table of Contents
Subpart A_Delivery of Adult and Dislocated Worker Services Through the
One-Stop Delivery System
Sec.
663.100 What is the role of the adult and dislocated worker programs in
the One-Stop delivery system?
663.105 When must adults and dislocated workers be registered?
663.110 What are the eligibility criteria for core services for adults
in the adult and dislocated worker programs?
663.115 What are the eligibility criteria for core services for
dislocated workers in the adult and dislocated worker
programs?
663.120 Are displaced homemakers eligible for dislocated worker
activities under WIA?
663.145 What services are WIA title I adult and dislocated workers
formula funds used to provide?
663.150 What core services must be provided to adults and dislocated
workers?
663.155 How are core services delivered?
663.160 Are there particular core services an individual must receive
before receiving intensive services under WIA section
134(d)(3)?
663.165 How long must an individual be in core services in order to be
eligible for intensive services?
Subpart B_Intensive Services
663.200 What are intensive services for adults and dislocated workers?
663.210 How are intensive services delivered?
663.220 Who may receive intensive services?
663.230 What criteria must be used to determine whether an employed
worker needs intensive services to obtain or retain employment
leading to ``self-sufficiency''?
663.240 Are there particular intensive services an individual must
receive before receiving training services under WIA section
134(d)(4)(A)(i)?
663.245 What is the individual employment plan?
663.250 How long must an individual participant be in intensive services
to be eligible for training services?
Subpart C_Training Services
663.300 What are training services for adults and dislocated workers?
663.310 Who may receive training services?
663.320 What are the requirements for coordination of WIA training funds
and other grant assistance?
Subpart D_Individual Training Accounts
663.400 How are training services provided?
663.410 What is an Individual Training Account (ITA)?
663.420 Can the duration and amount of ITA's be limited?
663.430 Under what circumstances may mechanisms other than ITA's be used
to provide training services?
663.440 What are the requirements for consumer choice?
Subpart E_Eligible Training Providers
663.500 What is the purpose of this subpart?
663.505 What are eligible providers of training services?
663.508 What is a ``program of training services''?
663.510 Who is responsible for managing the eligible provider process?
663.515 What is the process for initial determination of provider
eligibility?
663.530 Is there a time limit on the period of initial eligibility for
training providers?
663.535 What is the process for determining the subsequent eligibility
of a provider?
663.540 What kind of performance and cost information is required for
determinations of subsequent eligibility?
663.550 How is eligible provider information developed and maintained?
663.555 How is the State list disseminated?
663.565 May an eligible training provider lose its eligibility?
663.570 What is the consumer reports system?
663.575 In what ways can a Local Board supplement the information
available from the State list?
663.585 May individuals choose training providers located outside of the
local area?
663.590 May a community-based organization (CBO) be included on an
eligible provider list?
663.595 What requirements apply to providers of OJT and customized
training?
Subpart F_Priority and Special Populations
663.600 What priority must be given to low-income adults and public
assistance recipients served with adult funds under title I?
663.610 Does the statutory priority for use of adult funds also apply to
dislocated worker funds?
663.620 How do the Welfare-to-Work program and the TANF program relate
to the One-Stop delivery system?
663.630 How does a displaced homemaker qualify for services under title
I?
[[Page 59]]
663.640 May an individual with a disability whose family does not meet
income eligibility criteria under the Act be eligible for
priority as a low-income adult?
Subpart G_On-the-Job Training (OJT) and Customized Training
663.700 What are the requirements for on-the-job training (OJT)?
663.705 What are the requirements for OJT contracts for employed
workers?
663.710 What conditions govern OJT payments to employers?
663.715 What is customized training?
663.720 What are the requirements for customized training for employed
workers?
663.730 May funds provided to employers for OJT of customized training
be used to assist, promote, or deter union organizing?
Subpart H_Supportive Services
663.800 What are supportive services for adults and dislocated workers?
663.805 When may supportive services be provided to participants?
663.810 Are there limits on the amounts or duration of funds for
supportive services?
663.815 What are needs-related payments?
663.820 What are the eligibility requirements for adults to receive
needs-related payments?
663.825 What are the eligibility requirements for dislocated workers to
receive needs-related payments?
663.830 May needs-related payments be paid while a participant is
waiting to start training classes?
663.840 How is the level of needs-related payments determined?
Authority: Section 506(c), Pub. L. 105-220; 20 U.S.C. 9276(c).
Source: 65 FR 49402, Aug. 11, 2000, unless otherwise noted.
Subpart A_Delivery of Adult and Dislocated Worker Services Through the
One-Stop Delivery System
Sec. 663.100 What is the role of the adult and dislocated worker
programs in the One-Stop delivery system?
(a) The One-Stop system is the basic delivery system for adult and
dislocated worker services. Through this system, adults and dislocated
workers can access a continuum of services. The services are organized
into three levels: core, intensive, and training.
(b) The chief elected official or his/her designee(s), as the local
grant recipient(s) for the adult and dislocated worker programs, is a
required One-Stop partner and is subject to the provisions relating to
such partners described in 20 CFR part 662. Consistent with those
provisions:
(1) Core services for adults and dislocated workers must be made
available in at least one comprehensive One-Stop center in each local
workforce investment area. Services may also be available elsewhere,
either at affiliated sites or at specialized centers. For example,
specialized centers may be established to serve workers being dislocated
from a particular employer or industry, or to serve residents of public
housing.
(2) The One-Stop centers also make intensive services available to
adults and dislocated workers, as needed, either by the One-Stop
operator directly or through contracts with service providers that are
approved by the Local Board.
(3) Through the One-Stop system, adults and dislocated workers
needing training are provided Individual Training Accounts (ITA's) and
access to lists of eligible providers and programs of training. These
lists contain quality consumer information, including cost and
performance information for each of the providers' programs, so that
participants can make informed choices on where to use their ITA's.
(ITA's are more fully discussed in subpart D of this part.)
Sec. 663.105 When must adults and dislocated workers be registered?
(a) Registration is the process for collecting information to
support a determination of eligibility. This information may be
collected through methods that include electronic data transfer,
personal interview, or an individual's application.
(b) Adults and dislocated workers who receive services funded under
title I other than self-service or informational activities must be
registered and determined eligible.
(c) EO data must be collected on every individual who is interested
in being considered for WIA title I financially assisted aid, benefits,
services, or training by a recipient, and who has signified that
interest by submitting
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personal information in response to a request from the recipient.
Sec. 663.110 What are the eligibility criteria for core services for
adults in the adult and dislocated worker programs?
To be eligible to receive core services as an adult in the adult and
dislocated worker programs, an individual must be 18 years of age or
older. To be eligible for the dislocated worker programs, an eligible
adult must meet the criteria of Sec. 663.115. Eligibility criteria for
intensive and training services are found at Sec. Sec. 663.220 and
663.310.
Sec. 663.115 What are the eligibility criteria for core services for
dislocated workers in the adult and dislocated worker programs?
(a) To be eligible to receive core services as a dislocated worker
in the adult and dislocated worker programs, an individual must meet the
definition of ``dislocated worker'' at WIA section 101(9). Eligibility
criteria for intensive and training services are found at Sec. Sec.
663.220 and 663.310.
(b) Governors and Local Boards may establish policies and procedures
for One-Stop operators to use in determining an individual's eligibility
as a dislocated worker, consistent with the definition at WIA section
101(9). These policies and procedures may address such conditions as:
(1) What constitutes a ``general announcement'' of plant closing
under WIA section 101(9)(B)(ii) or (iii); and
(2) What constitutes ``unemployed as a result of general economic
conditions in the community in which the individual resides or because
of natural disasters'' for determining the eligibility of self-employed
individuals, including family members and farm or ranch hands, under WIA
section 101(9)(C).
Sec. 663.120 Are displaced homemakers eligible for dislocated worker
activities under WIA?
(a) Yes, there are two significant differences from the eligibility
requirements under the Job Training Partnership Act.
(b) Under the dislocated worker program in JTPA, displaced
homemakers are defined as ``additional dislocated workers'' and are only
eligible to receive services if the Governor determines that providing
such services would not adversely affect the delivery of services to the
other eligible dislocated workers. Under WIA section 101(9), displaced
homemakers who meet the definition at WIA section 101(10) are eligible
dislocated workers without any additional determination.
(c) The definition of displaced homemaker under JTPA included
individuals who had been dependent upon public assistance under Aid for
Families with Dependent Children (AFDC) as well as those who had been
dependent on the income of another family member. The definition in WIA
section 101(10) includes only those individuals who were dependent on a
family member's income. Those individuals who have been dependent on
public assistance may be served in the adult program.
Sec. 663.145 What services are WIA title I adult and dislocated workers
formula funds used to provide?
(a) WIA title I formula funds allocated to local areas for adults
and dislocated workers must be used to provide core, intensive and
training services through the One-Stop delivery system. Local Boards
determine the most appropriate mix of these services, but all three
types must be available for both adults and dislocated workers. There
are different eligibility criteria for each of these types of services,
which are described at Sec. Sec. 663.110, 663.115, 663.220 and 663.310.
(b) WIA title I funds may also be used to provide the other services
described in WIA section 134(e):
(1) Discretionary One-Stop delivery activities, including:
(i) Customized screening and referral of qualified participants in
training services to employment; and
(ii) Customized employment-related services to employers on a fee-
for-service basis that are in addition to labor exchange services
available to employers under the Wagner-Peyser Act.
(2) Supportive services, including needs-related payments, as
described in subpart H of this part.
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Sec. 663.150 What core services must be provided to adults and
dislocated workers?
(a) At a minimum, all of the core services described in WIA section
134(d)(2) and 20 CFR 662.240 must be provided in each local area through
the One-Stop delivery system.
(b) Followup services must be made available, as appropriate, for a
minimum of 12 months following the first day of employment, to
registered participants who are placed in unsubsidized employment.
Sec. 663.155 How are core services delivered?
Core services must be provided through the One-Stop delivery system.
Core services may be provided directly by the One-Stop operator or
through contracts with service providers that are approved by the Local
Board. The Local Board may only be a provider of core services when
approved by the chief elected official and the Governor in accordance
with the requirements of WIA section 117(f)(2) and 20 CFR 661.310.
Sec. 663.160 Are there particular core services an individual must
receive before receiving intensive services under WIA section 134(d)(3)?
(a) Yes, at a minimum, an individual must receive at least one core
service, such as an initial assessment or job search and placement
assistance, before receiving intensive services. The initial assessment
provides preliminary information about the individual's skill levels,
aptitudes, interests, and supportive services needs. The job search and
placement assistance helps the individual determine whether he or she is
unable to obtain employment, and thus requires more intensive services
to obtain employment. The decision on which core services to provide,
and the timing of their delivery, may be made on a case-by-case basis at
the local level depending upon the needs of the participant.
(b) A determination of the need for intensive services under Sec.
663.220, as established by the initial assessment or the individual's
inability to obtain employment through the core services provided, must
be contained in the participant's case file.
Sec. 663.165 How long must an individual be in core services in order
to be eligible for intensive services?
There is no Federally-required minimum time period for participation
in core services before receiving intensive services. (WIA sec.
134(d)(3).)
Subpart B_Intensive Services
Sec. 663.200 What are intensive services for adults and dislocated
workers?
(a) Intensive services are listed in WIA section 134(d)(3)(C). The
list in the Act is not all-inclusive and other intensive services, such
as out-of-area job search assistance, literacy activities related to
basic workforce readiness, relocation assistance, internships, and work
experience may be provided, based on an assessment or individual
employment plan.
(b) For the purposes of paragraph (a) of this section, work
experience is a planned, structured learning experience that takes place
in a workplace for a limited period of time. Work experience may be paid
or unpaid, as appropriate. A work experience workplace may be in the
private for profit sector, the non-profit sector, or the public sector.
Labor standards apply in any work experience where an employee/employer
relationship, as defined by the Fair Labor Standards Act, exists.
Sec. 663.210 How are intensive services delivered?
(a) Intensive services must be provided through the One-Stop
delivery system, including specialized One-Stop centers. Intensive
services may be provided directly by the One-Stop operator or through
contracts with service providers, which may include contracts with
public, private for-profit, and private non-profit service providers
(including specialized service providers), that are approved by the
Local Board. (WIA secs. 117(d)(2)(D) and 134(d)(3)(B).)
(b) The Local Board may only be a provider of intensive services
when approved by the chief elected official and the Governor in
accordance with WIA section 117(f)(2) and 20 CFR 661.310.
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Sec. 663.220 Who may receive intensive services?
There are two categories of adults and dislocated workers who may
receive intensive services:
(a) Adults and dislocated workers who are unemployed, have received
at least one core service and are unable to obtain employment through
core services, and are determined by a One-Stop operator to be in need
of more intensive services to obtain employment; and
(b) Adults and dislocated workers who are employed, have received at
least one core service, and are determined by a One-Stop operator to be
in need of intensive services to obtain or retain employment that leads
to self-sufficiency, as described in Sec. 663.230.
Sec. 663.230 What criteria must be used to determine whether an
employed worker needs intensive services to obtain or retain employment
leading to ``self-sufficiency''?
State Boards or Local Boards must set the criteria for determining
whether employment leads to self-sufficiency. At a minimum, such
criteria must provide that self-sufficiency means employment that pays
at least the lower living standard income level, as defined in WIA
section 101(24). Self-sufficiency for a dislocated worker may be defined
in relation to a percentage of the layoff wage. The special needs of
individuals with disabilities or other barriers to employment should be
taken into account when setting criteria to determine self-sufficiency.
Sec. 663.240 Are there particular intensive services an individual
must receive before receiving training services under WIA
section 134(d)(4)(A)(i)?
(a) Yes, at a minimum, an individual must receive at least one
intensive service, such as development of an individual employment plan
with a case manager or individual counseling and career planning, before
the individual may receive training services.
(b) The case file must contain a determination of need for training
services under Sec. 663.310, as identified in the individual employment
plan, comprehensive assessment, or through any other intensive service
received.
Sec. 663.245 What is the individual employment plan?
The individual employment plan is an ongoing strategy jointly
developed by the participant and the case manager that identifies the
participant's employment goals, the appropriate achievement objectives,
and the appropriate combination of services for the participant to
achieve the employment goals.
Sec. 663.250 How long must an individual participant be in intensive
services to be eligible for training services?
There is no Federally-required minimum time period for participation
in intensive services before receiving training services. The period of
time an individual spends in intensive services should be sufficient to
prepare the individual for training or employment. (WIA sec.
134(d)(4)(A)(i).)
Subpart C_Training Services
Sec. 663.300 What are training services for adults and dislocated
workers?
Training services are listed in WIA section 134(d)(4)(D). The list
in the Act is not all-inclusive and additional training services may be
provided.
Sec. 663.310 Who may receive training services?
Training services may be made available to employed and unemployed
adults and dislocated workers who:
(a) Have met the eligibility requirements for intensive services,
have received at least one intensive service under Sec. 663.240, and
have been determined to be unable to obtain or retain employment through
such services;
(b) After an interview, evaluation, or assessment, and case
management, have been determined by a One-Stop operator or One-Stop
partner, to be in need of training services and to have the skills and
qualifications to successfully complete the selected training program;
(c) Select a program of training services that is directly linked to
the employment opportunities either in the local area or in another area
to which the individual is willing to relocate;
(d) Are unable to obtain grant assistance from other sources to pay
the
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costs of such training, including such sources as Welfare-to-Work,
State-funded training funds, Trade Adjustment Assistance and Federal
Pell Grants established under title IV of the Higher Education Act of
1965, or require WIA assistance in addition to other sources of grant
assistance, including Federal Pell Grants (provisions relating to fund
coordination are found at Sec. 663.320 and WIA section 134(d)(4)(B));
and
(e) For individuals whose services are provided through the adult
funding stream, are determined eligible in accordance with the State and
local priority system, if any, in effect for adults under WIA section
134(d)(4)(E) and Sec. 663.600. (WIA sec. 134(d)(4)(A).)
Sec. 663.320 What are the requirements for coordination of WIA training
funds and other grant assistance?
(a) WIA funding for training is limited to participants who:
(1) Are unable to obtain grant assistance from other sources to pay
the costs of their training; or
(2) Require assistance beyond that available under grant assistance
from other sources to pay the costs of such training. Program operators
and training providers must coordinate funds available to pay for
training as described in paragraphs (b) and (c) of this section.
(b) Program operators must coordinate training funds available and
make funding arrangements with One-Stop partners and other entities to
apply the provisions of paragraph (a) of this section. Training
providers must consider the availability of other sources of grants to
pay for training costs such as Welfare-to-Work, State-funded training
funds, and Federal Pell Grants, so that WIA funds supplement other
sources of training grants.
(c) A WIA participant may enroll in WIA-funded training while his/
her application for a Pell Grant is pending as long as the One-Stop
operator has made arrangements with the training provider and the WIA
participant regarding allocation of the Pell Grant, if it is
subsequently awarded. In that case, the training provider must reimburse
the One-Stop operator the WIA funds used to underwrite the training for
the amount the Pell Grant covers. Reimbursement is not required from the
portion of Pell Grant assistance disbursed to the WIA participant for
education-related expenses. (WIA sec. 134(d)(4)(B).)
Subpart D_Individual Training Accounts
Sec. 663.400 How are training services provided?
Except under the three conditions described in WIA section
134(d)(4)(G)(ii) and Sec. 663.430(a), the Individual Training Account
(ITA) is established for eligible individuals to finance training
services. Local Boards may only provide training services under Sec.
663.430 if they receive a waiver from the Governor and meet the
requirements of 20 CFR 661.310 and WIA section 117(f)(1). (WIA sec.
134(d)(4)(G).)
Sec. 663.410 What is an Individual Training Account (ITA)?
The ITA is established on behalf of a participant. WIA title I adult
and dislocated workers purchase training services from eligible
providers they select in consultation with the case manager. Payments
from ITA's may be made in a variety of ways, including the electronic
transfer of funds through financial institutions, vouchers, or other
appropriate methods. Payments may also be made incrementally; through
payment of a portion of the costs at different points in the training
course. (WIA sec. 134(d)(4)(G).)
Sec. 663.420 Can the duration and amount of ITA's be limited?
(a) Yes, the State or Local Board may impose limits on ITA's, such
as limitations on the dollar amount and/or duration.
(b) Limits to ITA's may be established in different ways:
(1) There may be a limit for an individual participant that is based
on the needs identified in the individual employment plan; or
(2) There may be a policy decision by the State Board or Local Board
to establish a range of amounts and/or a maximum amount applicable to
all ITA's.
[[Page 64]]
(c) Limitations established by State or Local Board policies must be
described in the State or Local Plan, respectively, but should not be
implemented in a manner that undermines the Act's requirement that
training services are provided in a manner that maximizes customer
choice in the selection of an eligible training provider. ITA
limitations may provide for exceptions to the limitations in individual
cases.
(d) An individual may select training that costs more than the
maximum amount available for ITAs under a State or local policy when
other sources of funds are available to supplement the ITA. These other
sources may include: Pell Grants; scholarships; severance pay; and other
sources.
Sec. 663.430 Under what circumstances may mechanisms other than
ITA's be used to provide training services?
(a) Contracts for services may be used instead of ITA's only when
one of the following three exceptions applies:
(1) When the services provided are on-the-job training (OJT) or
customized training;
(2) When the Local Board determines that there are an insufficient
number of eligible providers in the local area to accomplish the purpose
of a system of ITA's. The Local Plan must describe the process to be
used in selecting the providers under a contract for services. This
process must include a public comment period for interested providers of
at least 30 days;
(3) When the Local Board determines that there is a training
services program of demonstrated effectiveness offered in the area by a
community-based organization (CBO) or another private organization to
serve special participant populations that face multiple barriers to
employment, as described in paragraph (b) in this section. The Local
Board must develop criteria to be used in determining demonstrated
effectiveness, particularly as it applies to the special participant
population to be served. The criteria may include:
(i) Financial stability of the organization;
(ii) Demonstrated performance in the delivery of services to hard to
serve participant populations through such means as program completion
rate; attainment of the skills, certificates or degrees the program is
designed to provide; placement after training in unsubsidized
employment; and retention in employment; and
(iii) How the specific program relates to the workforce investment
needs identified in the local plan.
(b) Under paragraph (a)(3) of this section, special participant
populations that face multiple barriers to employment are populations of
low-income individuals that are included in one or more of the following
categories:
(1) Individuals with substantial language or cultural barriers;
(2) Offenders;
(3) Homeless individuals; and
(4) Other hard-to-serve populations as defined by the Governor.
Sec. 663.440 What are the requirements for consumer choice?
(a) Training services, whether under ITA's or under contract, must
be provided in a manner that maximizes informed consumer choice in
selecting an eligible provider.
(b) Each Local Board, through the One-Stop center, must make
available to customers the State list of eligible providers required in
WIA section 122(e). The list includes a description of the programs
through which the providers may offer the training services, the
information identifying eligible providers of on-the-job training and
customized training required under WIA section 122(h) (where
applicable), and the performance and cost information about eligible
providers of training services described in WIA sections 122 (e) and
(h).
(c) An individual who has been determined eligible for training
services under Sec. 663.310 may select a provider described in
paragraph (b) of this section after consultation with a case manager.
Unless the program has exhausted training funds for the program year,
the operator must refer the individual to the selected provider, and
establish an ITA for the individual to pay for training. For purposes of
this paragraph, a referral may be carried out by providing a voucher or
certificate to the individual to obtain the training.
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(d) The cost of referral of an individual with an ITA to a training
provider is paid by the applicable adult or dislocated worker program
under title I of WIA.
Subpart E_Eligible Training Providers
Sec. 663.500 What is the purpose of this subpart?
The workforce investment system established under WIA emphasizes
informed customer choice, system performance, and continuous
improvement. The eligible provider process is part of the strategy for
achieving these goals. Local Boards, in partnership with the State,
identify training providers and programs whose performance qualifies
them to receive WIA funds to train adults and dislocated workers. In
order to maximize customer choice and assure that all significant
population groups are served, States and local areas should administer
the eligible provider process in a manner to assure that significant
numbers of competent providers, offering a wide variety of training
programs and occupational choices, are available to customers. After
receiving core and intensive services and in consultation with case
managers, eligible participants who need training use the list of these
eligible providers to make an informed choice. The ability of providers
to successfully perform, the procedures State and Local Boards use to
establish eligibility, and the degree to which information, including
performance information, on those providers is made available to
customers eligible for training services, are key factors affecting the
successful implementation of the Statewide workforce investment system.
This subpart describes the process for determining eligible training
providers.
Sec. 663.505 What are eligible providers of training services?
(a) Eligible providers of training services are described in WIA
section 122. They are those entities eligible to receive WIA title I-B
funds to provide training services to eligible adult and dislocated
worker customers.
(b) In order to provide training services under WIA title I-B, a
provider must meet the requirements of this subpart and WIA section 122.
(1) These requirements apply to the use of WIA title I adult and
dislocated worker funds to provide training:
(i) To individuals using ITA's to access training through the
eligible provider list; and
(ii) To individuals for training provided through the exceptions to
ITA's described at Sec. 663.430 (a)(2) and (a)(3).
(2) These requirements apply to all organizations providing training
to adult and dislocated workers, including:
(i) Postsecondary educational institutions providing a program
described in WIA section 122(a)(2)(A)(ii);
(ii) Entities that carry out programs under the National
Apprenticeship Act (29 U.S.C. 50 et seq.);
(iii) Other public or private providers of a program of training
services described in WIA section 122(a)(2)(C);
(iv) Local Boards, if they meet the conditions of WIA section
117(f)(1); and
(v) Community-based organizations and other private organizations
providing training under Sec. 663.430.
(c) Provider eligibility procedures must be established by the
Governor, as required by this subpart. Different procedures are
described in WIA for determinations of ``initial'' and ``subsequent''
eligibility. Because the processes are different, they are discussed
separately.
Sec. 663.508 What is a ``program of training services''?
A program of training services is one or more courses or classes, or
a structured regimen, that upon successful completion, leads to:
(a) A certificate, an associate degree, baccalaureate degree, or
(b) The skills or competencies needed for a specific job or jobs, an
occupation, occupational group, or generally, for many types of jobs or
occupations, as recognized by employers and determined prior to
training.
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Sec. 663.510 Who is responsible for managing the eligible provider
process?
(a) The State and the Local Boards each have responsibilities for
managing the eligible provider process.
(b) The Governor must establish eligibility criteria for certain
providers to become initially eligible and must set minimum levels of
performance for all providers to remain subsequently eligible.
(c) The Governor must designate a State agency (called the
``designated State agency'') to assist in carrying out WIA section 122.
The designated State agency is responsible for:
(1) Developing and maintaining the State list of eligible providers
and programs, which is comprised of lists submitted by Local Boards;
(2) Determining if programs meet performance levels, including
verifying the accuracy of the information on the State list in
consultation with the Local Boards, removing programs that do not meet
program performance levels, and taking appropriate enforcement actions,
against providers in the case of the intentional provision of inaccurate
information, as described in WIA section 122(f)(1), and in the case of a
substantial violation of the requirements of WIA, as described in WIA
section 122(f)(2);
(3) Disseminating the State list, accompanied by performance and
cost information relating to each provider, to One-Stop operators
throughout the State.
(d) The Local Board must:
(1) Accept applications for initial eligibility from certain
postsecondary institutions and entities providing apprenticeship
training;
(2) Carry out procedures prescribed by the Governor to assist in
determining the initial eligibility of other providers;
(3) Carry out procedures prescribed by the Governor to assist in
determining the subsequent eligibility of all providers;
(4) Compile a local list of eligible providers, collect the
performance and cost information and any other required information
relating to providers;
(5) Submit the local list and information to the designated State
agency;
(6) Ensure the dissemination and appropriate use of the State list
through the local One-Stop system;
(7) Consult with the designated State agency in cases where
termination of an eligible provider is contemplated because inaccurate
information has been provided; and
(8) Work with the designated State agency in cases where the
termination of an eligible provider is contemplated because of
violations of the Act.
(e) The Local Board may:
(1) Make recommendations to the Governor on the procedures to be
used in determining initial eligibility of certain providers;
(2) Increase the levels of performance required by the State for
local providers to maintain subsequent eligibility;
(3) Require additional verifiable program-specific information from
local providers to maintain subsequent eligibility.
Sec. 663.515 What is the process for initial determination of provider
eligibility?
(a) To be eligible to receive adult or dislocated worker training
funds under title I of WIA, all providers must submit applications to
the Local Boards in the areas in which they wish to provide services.
The application must describe each program of training services to be
offered.
(b) For programs eligible under title IV of the Higher Education Act
and apprenticeship programs registered under the National Apprenticeship
Act (NAA), and the providers or such programs, Local Boards determine
the procedures to use in making an application. The procedures
established by the Local Board must specify the timing, manner, and
contents of the required application.
(c) For programs not eligible under title IV of the HEA or
registered under the NAA, and for providers not eligible under title IV
of the HEA or carrying out apprenticeship programs under NAA:
(1) The Governor must develop a procedure for use by Local Boards
for determining the eligibility of other providers, after
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(i) Soliciting and taking into consideration recommendations from
Local Boards and providers of training services within the State;
(ii) Providing an opportunity for interested members of the public,
including representatives of business and labor organizations, to submit
comments on the procedure; and
(iii) Designating a specific time period for soliciting and
considering the recommendations of Local Boards and provider, and for
providing an opportunity for public comment.
(2) The procedure must be described in the State Plan.
(3)(i) The procedure must require that the provider must submit an
application to the Local Board at such time and in such manner as may be
required, which contains a description of the program of training
services;
(ii) If the provider provides a program of training services on the
date of application, the procedure must require that the application
include an appropriate portion of the performance information and
program cost information described in Sec. 663.540, and that the
program meet appropriate levels of performance;
(iii) If the provider does not provide a program of training
services on that date, the procedure must require that the provider meet
appropriate requirements specified in the procedure. (WIA sec.
122(b)(2)(D).)
(d) The Local Board must include providers that meet the
requirements of paragraphs (b) and (c) of this section on a local list
and submit the list to the designated State agency. The State agency has
30 days to determine that the provider or its programs do not meet the
requirements relating to the providers under paragraph (c) of this
section. After the agency determines that the provider and its programs
meet(s) the criteria for initial eligibility, or 30 days have elapsed,
whichever occurs first, the provider and its programs are initially
eligible. The programs and providers submitted under paragraph (b) of
this section are initially eligible without State agency review. (WIA
sec. 122(e).)
Sec. 663.530 Is there a time limit on the period of initial eligibility
for training providers?
Yes, under WIA section 122(c)(5), the Governor must require training
providers to submit performance information and meet performance levels
annually in order to remain eligible providers. States may require that
these performance requirements be met one year from the date that
initial eligibility was determined, or may require all eligible
providers to submit performance information by the same date each year.
If the latter approach is adopted, the Governor may exempt eligible
providers whose determination of initial eligibility occurs within six
months of the date of submissions. The effect of this requirement is
that no training provider may have a period of initial eligibility that
exceeds eighteen months. In the limited circumstance when insufficient
data is available, initial eligibility may be extended for a period of
up to six additional months, if the Governor's procedures provide for
such an extension.
Sec. 663.535 What is the process for determining the subsequent
eligibility of a provider?
(a) The Governor must develop a procedure for the Local Board to use
in determining the subsequent eligibility of all eligible training
providers determined initially eligible under Sec. 663.515 (b) and (c),
after:
(1) Soliciting and taking into consideration recommendations from
Local Boards and providers of training services within the State;
(2) Providing an opportunity for interested members of the public,
including representatives of business and labor organizations, to submit
comments on such procedure; and
(3) Designating a specific time period for soliciting and
considering the recommendations of Local Boards and providers, and for
providing an opportunity for public comment.
(b) The procedure must be described in the State Plan.
(c) The procedure must require that:
(1) Providers annually submit performance and cost information as
described at WIA section 122(d)(1) and (2), for each program of training
services
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for which the provider has been determined to be eligible, in a time and
manner determined by the Local Board;
(2) Providers and programs annually meet minimum performance levels
described at WIA section 122(c)(6), as demonstrated utilizing UI
quarterly wage records where appropriate.
(d) The program's performance information must meet the minimum
acceptable levels established under paragraph (c)(2) of this section to
remain eligible;
(e) Local Boards may require higher levels of performance for local
programs than the levels specified in the procedures established by the
Governor. (WIA sec.122(c)(5) and (c)(6).)
(f) The State procedure must require Local Boards to take into
consideration:
(1) The specific economic, geographic and demographic factors in the
local areas in which providers seeking eligibility are located, and
(2) The characteristics of the populations served by programs
seeking eligibility, including the demonstrated difficulties in serving
these populations, where applicable.
(g) The Local Board retains those programs on the local list that
meet the required performance levels and other elements of the State
procedures and submits the list, accompanied by the performance and cost
information, and any additional required information, to the designated
State agency. If the designated State agency determines within 30 days
from the receipt of the information that the program does not meet the
performance levels established under paragraph (c)(2) of this section,
the program may be removed from the list. A program retained on the
local list and not removed by the designated State agency is considered
an eligible program of training services.
Sec. 663.540 What kind of performance and cost information is required
for determinations of subsequent eligibility?
(a) Eligible providers of training services must submit, at least
annually, under procedures established by the Governor under Sec.
663.535(c):
(1) Verifiable program-specific performance information, including:
(i) The information described in WIA section 122(d)(1)(A)(i) for all
individuals participating in the programs of training services,
including individuals who are not receiving assistance under WIA section
134 and individuals who are receiving such assistance; and
(ii) The information described in WIA section 122(d)(1)(A)(ii)
relating only to individuals receiving assistance under the WIA adult
and dislocated worker program who are participating in the applicable
program of training services; and
(2) Information on program costs (such as tuition and fees) for WIA
participants in the program.
(b) Governors may require any additional verifiable performance
information (such as the information described at WIA section 122(d)(2))
that the Governor determines to be appropriate to obtain subsequent
eligibility, including information regarding all participating
individuals as well as individuals receiving assistance under the WIA
adult and dislocated worker program.
(c) Governors must establish procedures by which providers can
demonstrate if the additional information required under paragraph (b)
of this section imposes extraordinary costs on providers, or if
providers experience extraordinary costs in the collection of
information. If, through these procedures, providers demonstrate that
they experience such extraordinary costs:
(1) The Governor or Local Board must provide access to cost-
effective methods for the collection of the information; or
(2) The Governor must provide additional resources to assist
providers in the collection of the information from funds for Statewide
workforce investment activities reserved under WIA sections 128(a) and
133(a)(1).
(d) The Local Board and the designated State agency may accept
program-specific performance information consistent with the
requirements for eligibility under title IV of the Higher Education Act
of 1965 from a provider for purposes of enabling the provider to fulfill
the applicable requirements of
[[Page 69]]
this section, if the information is substantially similar to the
information otherwise required under this section.
Sec. 663.550 How is eligible provider information developed and
maintained?
(a) The designated State agency must maintain a list of all eligible
training programs and providers in the State (the ``State list'').
(b) The State list is a compilation of the eligible programs and
providers identified or retained by local areas and that have not been
removed under Sec. Sec. 663.535(g) and 663.565.
(c) The State list must be accompanied by the performance and cost
information contained in the local lists as required by Sec.
663.535(e). (WIA sec. 122(e)(4)(A).)
Sec. 663.555 How is the State list disseminated?
(a) The designated State agency must disseminate the State list and
accompanying performance and cost information to the One-Stop delivery
systems within the State.
(b) The State list and information must be updated at least
annually.
(c) The State list and accompanying information form the primary
basis of the One-Stop consumer reports system that provides for informed
customer choice. The list and information must be widely available,
through the One-Stop delivery system, to customers seeking information
on training outcomes, as well as participants in employment and training
activities funded under WIA and other programs.
(1) The State list must be made available to individuals who have
been determined eligible for training services under Sec. 663.310.
(2) The State list must also be made available to customers whose
training is supported by other One-Stop partners.
Sec. 663.565 May an eligible training provider lose its eligibility?
(a) Yes. A training provider must deliver results and provide
accurate information in order to retain its status as an eligible
training provider.
(b) If the provider's programs do not meet the established
performance levels, the programs will be removed from the eligible
provider list.
(1) A Local Board must determine, during the subsequent eligibility
determination process, whether a provider's programs meet performance
levels. If the program fails to meet such levels, the program must be
removed from the local list. If all of the provider's programs fail to
meet such levels, the provider must be removed from the local list.
(2) The designated State agency upon receipt of the performance
information accompanying the local list, may remove programs from the
State list if the agency determines the program failed to meet the
levels of performance prescribed under Sec. 663.535(c). If all of the
provider's programs are determined to have failed to meet the levels,
the designated State agency may remove the provider from the State list.
(3) Providers determined to have intentionally supplied inaccurate
information or to have subsequently violated any provision of title I of
WIA or the WIA regulations, including 29 CFR part 37, may be removed
from the list in accordance with the enforcement provisions of WIA
section 122(f). A provider whose eligibility is terminated under these
conditions is liable to repay all adult and dislocated worker training
funds it received during the period of noncompliance.
(4) The Governor must establish appeal procedures for providers of
training to appeal a denial of eligibility under this subpart according
to the requirements of 20 CFR 667.640(b).
Sec. 663.570 What is the consumer reports system?
The consumer reports system, referred to in WIA as performance
information, is the vehicle for informing the customers of the One-Stop
delivery system about the performance of training providers and programs
in the local area. It is built upon the State list of eligible providers
and programs developed through the procedures described in WIA section
122 and this subpart. The consumer reports system must contain the
information necessary for an adult or dislocated worker customer
[[Page 70]]
to fully understand the options available to him or her in choosing a
program of training services. Such program-specific factors may include
overall performance, performance for significant customer groups
(including wage replacement rates for dislocated workers), performance
of specific provider sites, current information on employment and wage
trends and projections, and duration of training programs.
Sec. 663.575 In what ways can a Local Board supplement the information
available from the State list?
(a) Local Boards may supplement the information available from the
State list by providing customers with additional information to assist
in supporting informed customer choice and the achievement of local
performance measures (as described in WIA section 136).
(b) This additional information may include:
(1) Information on programs of training services that are linked to
occupations in demand in the local area;
(2) Performance and cost information, including program-specific
performance and cost information, for the local outlet(s) of multi-site
eligible providers; and
(3) Other appropriate information related to the objectives of WIA,
which may include the information described in Sec. 663.570.
Sec. 663.585 May individuals choose training providers located outside
of the local area?
Yes, individuals may choose any of the eligible providers and
programs on the State list. A State may also establish a reciprocal
agreement with another State(s) to permit providers of eligible training
programs in each State to accept individual training accounts provided
by the other State. (WIA secs. 122(e)(4) and (e)(5).)
Sec. 663.590 May a community-based organization (CBO) be included on
an eligible provider list?
Yes, CBO's may apply and they and their programs may be determined
eligible providers of training services, under WIA section 122 and this
subpart. As eligible providers, CBO's provide training through ITA's and
may also receive contracts for training special participant populations
when the requirements of Sec. 663.430 are met.
Sec. 663.595 What requirements apply to providers of OJT and customized
training?
For OJT and customized training providers, One-Stop operators in a
local area must collect such performance information as the Governor may
require, determine whether the providers meet such performance criteria
as the Governor may require, and disseminate a list of providers that
have met such criteria, along with the relevant performance information
about them, through the One-Stop delivery system. Providers determined
to meet the criteria are considered to be identified as eligible
providers of training services. These providers are not subject to the
other requirements of WIA section 122 or this subpart.
Subpart F_Priority and Special Populations
Sec. 663.600 What priority must be given to low-income adults and
public assistance recipients served with adult funds under title I?
(a) WIA states, in section 134(d)(4)(E), that in the event that
funds allocated to a local area for adult employment and training
activities are limited, priority for intensive and training services
funded with title I adult funds must be given to recipients of public
assistance and other low-income individuals in the local area.
(b) Since funding is generally limited, States and local areas must
establish criteria by which local areas can determine the availability
of funds and the process by which any priority will be applied under WIA
section 134(d)(2)(E). Such criteria may include the availability of
other funds for providing employment and training-related services in
the local area, the needs of the specific groups within the local area,
and other appropriate factors.
[[Page 71]]
(c) States and local areas must give priority for adult intensive
and training services to recipients of public assistance and other low-
income individuals, unless the local area has determined that funds are
not limited under the criteria established under paragraph (b) of this
section.
(d) The process for determining whether to apply the priority
established under paragraph (b) of this section does not necessarily
mean that only the recipients of public assistance and other low income
individuals may receive WIA adult funded intensive and training services
when funds are determined to be limited in a local area. The Local Board
and the Governor may establish a process that gives priority for
services to the recipients of public assistance and other low income
individuals and that also serves other individuals meeting eligibility
requirements.
Sec. 663.610 Does the statutory priority for use of adult funds also
apply to dislocated worker funds?
No, the statutory priority applies to adult funds for intensive and
training services only. Funds allocated for dislocated workers are not
subject to this requirement.
Sec. 663.620 How do the Welfare-to-Work program and the TANF program
relate to the One-Stop delivery system?
(a) The local Welfare-to-Work (WtW) program operator is a required
partner in the One-Stop delivery system. 20 CFR part 662 describes the
roles of such partners in the One-Stop delivery system and applies to
the Welfare-to-Work program operator. WtW programs serve individuals who
may also be served by the WIA programs and, through appropriate linkages
and referrals, these customers will have access to a broader range of
services through the cooperation of the WtW program in the One-Stop
system. WtW participants, who are determined to be WIA eligible, and who
need occupational skills training may be referred through the One-Stop
system to receive WIA training, when WtW grant and other grant funds are
not available in accordance with Sec. 663.320(a). WIA participants who
are also determined WtW eligible, may be referred to the WtW operator
for job placement and other WtW assistance.
(b) The local TANF agency is specifically suggested under WIA as an
additional partner in the One-Stop system. TANF recipients will have
access to more information about employment opportunities and services
when the TANF agency participates in the One-Stop delivery system. The
Governor and Local Board should encourage the TANF agency to become a
One-Stop partner to improve the quality of services to the WtW and TANF-
eligible populations. In addition, becoming a One-Stop partner will
ensure that the TANF agency is represented on the Local Board and
participates in developing workforce investment strategies that help
cash assistance recipients secure lasting employment.
Sec. 663.630 How does a displaced homemaker qualify for services
under title I?
Displaced homemakers may be eligible to receive assistance under
title I in a variety of ways, including:
(a) Core services provided by the One-Stop partners through the One-
Stop delivery system;
(b) Intensive or training services for which an individual qualifies
as a dislocated worker/displaced homemaker if the requirements of this
part are met;
(c) Intensive or training services for which an individual is
eligible if the requirements of this part are met;
(d) Statewide employment and training projects conducted with
reserve funds for innovative programs for displaced homemakers, as
described in 20 CFR 665.210(f).
Sec. 663.640 May an individual with a disability whose family does
not meet income eligibility criteria under the Act be eligible for
priority as a low-income adult?
Yes, even if the family of an individual with a disability does not
meet the income eligibility criteria, the individual with a disability
is to be considered a low-income individual if the individual's own
income:
(a) Meets the income criteria established in WIA section 101(25)(B);
or
[[Page 72]]
(b) Meets the income eligibility criteria for cash payments under
any Federal, State or local public assistance program. (WIA sec.
101(25)(F).)
Subpart G_On-the-Job Training (OJT) and Customized Training
Sec. 663.700 What are the requirements for on-the-job training (OJT)?
(a) On-the-job training (OJT) is defined at WIA section 101(31). OJT
is provided under a contract with an employer in the public, private
non-profit, or private sector. Through the OJT contract, occupational
training is provided for the WIA participant in exchange for the
reimbursement of up to 50 percent of the wage rate to compensate for the
employer's extraordinary costs. (WIA sec. 101(31)(B).)
(b) The local program must not contract with an employer who has
previously exhibited a pattern of failing to provide OJT participants
with continued long-term employment with wages, benefits, and working
conditions that are equal to those provided to regular employees who
have worked a similar length of time and are doing the same type of
work. (WIA sec. 195(4).)
(c) An OJT contract must be limited to the period of time required
for a participant to become proficient in the occupation for which the
training is being provided. In determining the appropriate length of the
contract, consideration should be given to the skill requirements of the
occupation, the academic and occupational skill level of the
participant, prior work experience, and the participant's individual
employment plan. (WIA sec. 101(31)(C).)
Sec. 663.705 What are the requirements for OJT contracts for
employed workers?
OJT contracts may be written for eligible employed workers when:
(a) The employee is not earning a self-sufficient wage as determined
by Local Board policy;
(b) The requirements in Sec. 663.700 are met; and
(c) The OJT relates to the introduction of new technologies,
introduction to new production or service procedures, upgrading to new
jobs that require additional skills, workplace literacy, or other
appropriate purposes identified by the Local Board.
Sec. 663.710 What conditions govern OJT payments to employers?
(a) On-the-job training payments to employers are deemed to be
compensation for the extraordinary costs associated with training
participants and the costs associated with the lower productivity of the
participants.
(b) Employers may be reimbursed up to 50 percent of the wage rate of
an OJT participant for the extraordinary costs of providing the training
and additional supervision related to the OJT. (WIA sec. 101(31)(B).)
(c) Employers are not required to document such extraordinary costs.
Sec. 663.715 What is customized training?
Customized training is training:
(a) That is designed to meet the special requirements of an employer
(including a group of employers);
(b) That is conducted with a commitment by the employer to employ,
or in the case of incumbent workers, continue to employ, an individual
on successful completion of the training; and
(c) For which the employer pays for not less than 50 percent of the
cost of the training. (WIA sec. 101(8).)
Sec. 663.720 What are the requirements for customized training for
employed workers?
Customized training of an eligible employed individual may be
provided for an employer or a group of employers when:
(a) The employee is not earning a self-sufficient wage as determined
by Local Board policy;
(b) The requirements in Sec. 663.715 are met; and
(c) The customized training relates to the purposes described in
Sec. 663.705(c) or other appropriate purposes identified by the Local
Board.
Sec. 663.730 May funds provided to employers for OJT of customized
training be used to assist, promote, or deter union organizing?
No, funds provided to employers for OJT or customized training must
not be used to directly or indirectly assist, promote or deter union
organizing.
[[Page 73]]
Subpart H_Supportive Services
Sec. 663.800 What are supportive services for adults and dislocated
workers?
Supportive services for adults and dislocated workers are defined at
WIA sections 101(46) and 134(e)(2) and (3). They include services such
as transportation, child care, dependent care, housing, and needs-
related payments, that are necessary to enable an individual to
participate in activities authorized under WIA title I. Local Boards, in
consultation with the One-Stop partners and other community service
providers, must develop a policy on supportive services that ensures
resource and service coordination in the local area. Such policy should
address procedures for referral to such services, including how such
services will be funded when they are not otherwise available from other
sources. The provision of accurate information about the availability of
supportive services in the local area, as well as referral to such
activities, is one of the core services that must be available to adults
and dislocated workers through the One-Stop delivery system. (WIA sec.
134(d)(2)(H).)
Sec. 663.805 When may supportive services be provided to participants?
(a) Supportive services may only be provided to individuals who are:
(1) Participating in core, intensive or training services; and
(2) Unable to obtain supportive services through other programs
providing such services. (WIA sec. 134(e)(2)(A) and (B).)
(b) Supportive services may only be provided when they are necessary
to enable individuals to participate in title I activities. (WIA sec.
101(46).)
Sec. 663.810 Are there limits on the amounts or duration of funds for
supportive services?
(a) Local Boards may establish limits on the provision of supportive
services or provide the One-Stop operator with the authority to
establish such limits, including a maximum amount of funding and maximum
length of time for supportive services to be available to participants.
(b) Procedures may also be established to allow One-Stop operators
to grant exceptions to the limits established under paragraph (a) of
this section.
Sec. 663.815 What are needs-related payments?
Needs-related payments provide financial assistance to participants
for the purpose of enabling individuals to participate in training and
are one of the supportive services authorized by WIA section 134(e)(3).
Sec. 663.820 What are the eligibility requirements for adults to receive
needs-related payments?
Adults must:
(a) Be unemployed,
(b) Not qualify for, or have ceased qualifying for, unemployment
compensation; and
(c) Be enrolled in a program of training services under WIA section
134(d)(4).
Sec. 663.825 What are the eligibility requirements for dislocated workers
to receive needs-related payments?
To receive needs related payments, a dislocated worker must:
(a) Be unemployed, and:
(1) Have ceased to qualify for unemployment compensation or trade
readjustment allowance under TAA or NAFTA-TAA; and
(2) Be enrolled in a program of training services under WIA section
134(d)(4) by the end of the 13th week after the most recent layoff that
resulted in a determination of the worker's eligibility as a dislocated
worker, or, if later, by the end of the 8th week after the worker is
informed that a short-term layoff will exceed 6 months; or
(b) Be unemployed and did not qualify for unemployment compensation
or trade readjustment assistance under TAA or NAFTA-TAA.
Sec. 663.830 May needs-related payments be paid while a participant is
waiting to start training classes?
Yes, payments may be provided if the participant has been accepted
in a training program that will begin within 30 calendar days. The
Governor may authorize local areas to extend the 30
[[Page 74]]
day period to address appropriate circumstances.
Sec. 663.840 How is the level of needs-related payments determined?
(a) The payment level for adults must be established by the Local
Board.
(b) For dislocated workers, payments must not exceed the greater of
either of the following levels:
(1) For participants who were eligible for unemployment compensation
as a result of the qualifying dislocation, the payment may not exceed
the applicable weekly level of the unemployment compensation benefit; or
(2) For participants who did not qualify for unemployment
compensation as a result of the qualifying layoff, the weekly payment
may not exceed the poverty level for an equivalent period. The weekly
payment level must be adjusted to reflect changes in total family income
as determined by Local Board policies. (WIA sec. 134(e)(3)(C).)
PART 664_YOUTH ACTIVITIES UNDER TITLE I OF THE WORKFORCE INVESTMENT ACT-
-Table of Contents
Subpart A_Youth Councils
Sec.
664.100 What is the youth council?
664.110 Who is responsible for oversight of youth programs in the local
area?
Subpart B_Eligibility for Youth Services
664.200 Who is eligible for youth services?
664.205 How is the ``deficient in basic literacy skills'' criterion in
Sec. 664.200(c)(1) defined and documented?
664.210 How is the ``requires additional assistance to complete an
educational program, or to secure and hold employment''
criterion in Sec. 664.200(c)(6) defined and documented?
664.215 Must youth participants be registered to participate in the
youth program?
664.220 Is there an exception to permit youth who are not low-income
individuals to receive youth services?
664.230 Are the eligibility barriers for eligible youth the same as the
eligibility barriers for the five percent of youth
participants who do not have to meet income eligibility
requirements?
664.240 May a local program use eligibility for free lunches under the
National School Lunch Program as a substitute for the income
eligibility criteria under title I of WIA?
664.250 May a disabled youth whose family does not meet income
eligibility criteria under the Act be eligible for youth
services?
Subpart C_Out-of-School Youth
664.300 Who is an ``out-of-school youth''?
664.310 When is dropout status determined, particularly for youth
attending alternative schools?
664.320 Does the requirement that at least 30 percent of youth funds be
used to provide activities to out-of-school youth apply to all
youth funds?
Subpart D_Youth Program Design, Elements, and Parameters
664.400 What is a local youth program?
664.405 How must local youth programs be designed?
664.410 Must local programs include each of the ten program elements
listed in WIA section 129(c)(2) as options available to youth
participants?
664.420 What are leadership development opportunities?
664.430 What are positive social behaviors?
664.440 What are supportive services for youth?
664.450 What are follow-up services for youth?
664.460 What are work experiences for youth?
664.470 Are paid work experiences allowable activities?
Subpart E_Concurrent Enrollment
664.500 May youth participate in both youth and adult/dislocated worker
programs concurrently?
664.510 Are Individual Training Accounts allowed for youth participants?
Subpart F_Summer Employment Opportunities
664.600 Are Local Boards required to offer summer employment
opportunities in the local youth program?
664.610 How is the summer employment opportunities element administered?
664.620 Do the core indicators described in 20 CFR 666.100(a)(3) apply
to participation in summer employment activities?
Subpart G_One-Stop Services to Youth
664.700 What is the connection between the youth program and the One-
Stop service delivery system?
664.710 Do Local Boards have the flexibility to offer services to area
youth who are
[[Page 75]]
not eligible under the youth program through the One-Stop
centers?
Subpart H_Youth Opportunity Grants
664.800 How are the recipients of Youth Opportunity Grants selected?
664.810 How does a Local Board or other entity become eligible to
receive a Youth Opportunity Grant?
664.820 Who is eligible to receive services under Youth Opportunity
Grants?
664.830 How are performance measures for Youth Opportunity Grants
determined?
Authority: Sec. 506(c), Pub. L. 105-220; 20 U.S.C. 9276(c).
Source: 65 FR 49411, Aug. 11, 2000, unless otherwise noted.
Subpart A_Youth Councils
Sec. 664.100 What is the youth council?
(a) The duties and membership requirements of the youth council are
described in WIA section 117(h) and 20 CFR 661.335 and 661.340.
(b) The purpose of the youth council is to provide expertise in
youth policy and to assist the Local Board in:
(1) Developing and recommending local youth employment and training
policy and practice;
(2) Broadening the youth employment and training focus in the
community to incorporate a youth development perspective;
(3) Establishing linkages with other organizations serving youth in
the local area; and
(4) Taking into account a range of issues that can have an impact on
the success of youth in the labor market. (WIA sec. 117(h).)
Sec. 664.110 Who is responsible for oversight of youth programs in
the local area?
(a) The Local Board, working with the youth council, is responsible
for conducting oversight of local youth programs operated under the Act,
to ensure both fiscal and programmatic accountability.
(b) Local program oversight is conducted in consultation with the
local area's chief elected official.
(c) The Local Board may, after consultation with the CEO, delegate
its responsibility for oversight of eligible youth providers, as well as
other youth program oversight responsibilities, to the youth council,
recognizing the advantage of delegating such responsibilities to the
youth council whose members have expertise in youth issues. (WIA sec.
117(d); 117(h)(4).)
Subpart B_Eligibility for Youth Services
Sec. 664.200 Who is eligible for youth services?
An eligible youth is defined, under WIA sec. 101(13), as an
individual who:
(a) Is age 14 through 21;
(b) Is a low income individual, as defined in the WIA section
101(25); and
(c) Is within one or more of the following categories:
(1) Deficient in basic literacy skills;
(2) School dropout;
(3) Homeless, runaway, or foster child;
(4) Pregnant or parenting;
(5) Offender; or
(6) Is an individual (including a youth with a disability) who
requires additional assistance to complete an educational program, or to
secure and hold employment. (WIA sec. 101(13).)
Sec. 664.205 How is the ``deficient in basic literacy skills'' criterion
in Sec. 664.200(c)(1) defined and documented?
(a) Definitions and eligibility documentation requirements regarding
the ``deficient in basic literacy skills'' criterion in Sec.
664.200(c)(1) may be established at the State or local level. These
definitions may establish such criteria as are needed to address State
or local concerns, and must include a determination that an individual:
(1) Computes or solves problems, reads, writes, or speaks English at
or below the 8th grade level on a generally accepted standardized test
or a comparable score on a criterion-referenced test; or
(2) Is unable to compute or solve problems, read, write, or speak
English at a level necessary to function on the job, in the individual's
family or in society. (WIA secs. 101(19), 203(12).)
(b) In cases where the State Board establishes State policy on this
criterion, the policy must be included in the
[[Page 76]]
State plan. (WIA secs. 101(13)(C)(i), 101(19).)
Sec. 664.210 How is the ``requires additional assistance to complete
an educational program, or to secure and hold employment'' criterion in
Sec. 664.200(c)(6) defined and documented?
Definitions and eligibility documentation requirements regarding the
``requires additional assistance to complete an educational program, or
to secure and hold employment'' criterion of Sec. 664.200(c)(6) may be
established at the State or local level. In cases where the State Board
establishes State policy on this criterion, the policy must be included
in the State Plan. (WIA sec. 101(13)(C)(iv).)
Sec. 664.215 Must youth participants be registered to participate in
the youth program?
(a) Yes, all youth participants must be registered.
(b) Registration is the process of collecting information to support
a determination of eligibility.
(c) Equal opportunity data must be collected during the registration
process on any individual who has submitted personal information in
response to a request by the recipient for such information.
Sec. 664.220 Is there an exception to permit youth who are not
low-income individuals to receive youth services?
Yes, up to five percent of youth participants served by youth
programs in a local area may be individuals who do not meet the income
criterion for eligible youth, provided that they are within one or more
of the following categories:
(a) School dropout;
(b) Basic skills deficient, as defined in WIA section 101(4);
(c) Are one or more grade levels below the grade level appropriate
to the individual's age;
(d) Pregnant or parenting;
(e) Possess one or more disabilities, including learning
disabilities;
(f) Homeless or runaway;
(g) Offender; or
(h) Face serious barriers to employment as identified by the Local
Board. (WIA sec. 129(c)(5).)
Sec. 664.230 Are the eligibility barriers for eligible youth the same
as the eligibility barriers for the five percent of youth participants who
do not have to meet income eligibility requirements?
No, the barriers listed in Sec. Sec. 664.200 and 664.220 are not
the same. Both lists of eligibility barriers include school dropout,
homeless or runaway, pregnant or parenting, and offender, but each list
contains barriers not included on the other list.
Sec. 664.240 May a local program use eligibility for free lunches under
the National School Lunch Program as a substitute for the income eligibility
criteria under title I of WIA?
No, the criteria for income eligibility under the National School
Lunch Program are not the same as the Act's income eligibility criteria.
Therefore, the school lunch list may not be used as a substitute for
income eligibility to determine who is eligible for services under the
Act.
Sec. 664.250 May a disabled youth whose family does not meet income
eligibility criteria under the Act be eligible for youth services?
Yes, even if the family of a disabled youth does not meet the income
eligibility criteria, the disabled youth may be considered a low-income
individual if the youth's own income:
(a) Meets the income criteria established in WIA section 101(25)(B);
or
(b) Meets the income eligibility criteria for cash payments under
any Federal, State or local public assistance program. (WIA sec.
101(25)(F).)
Subpart C_Out-of-School Youth
Sec. 664.300 Who is an ``out-of-school youth''?
An out-of-school youth is an individual who:
(a) Is an eligible youth who is a school dropout; or
(b) Is an eligible youth who has either graduated from high school
or
[[Page 77]]
holds a GED, but is basic skills deficient, unemployed, or
underemployed. (WIA sec. 101(33).)
Sec. 664.310 When is dropout status determined, particularly for youth
attending alternative schools?
A school dropout is defined as an individual who is no longer
attending any school and who has not received a secondary school diploma
or its recognized equivalent. A youth's dropout status is determined at
the time of registration. A youth attending an alternative school at the
time of registration is not a dropout. An individual who is out-of
school at the time of registration and subsequently placed in an
alternative school, may be considered an out-of-school youth for the
purposes of the 30 percent expenditure requirement for out-of-school
youth. (WIA sec. 101(39).)
Sec. 664.320 Does the requirement that at least 30 percent of youth
funds be used to provide activities to out-of-school youth apply to all
youth funds?
(a) Yes, the 30 percent requirement applies to the total amount of
all funds allocated to a local area under WIA section 128(b)(2)(A) or
(b)(3), except for local area expenditures for administrative purposes
under 20 CFR 667.210(a)(2).
(b) Although it is not necessary to ensure that 30 percent of such
funds spent on summer employment opportunities (or any other particular
element of the youth program) are spent on out-of-school youth, the
funds spent on these activities are included in the total to which the
30 percent requirement applies.
(c) There is a limited exception, at WIA section 129(c)(4)(B), under
which certain small States may apply to the Secretary to reduce the
minimum amount that must be spent on out-of-school youth. (WIA sec.
129(c)(4).)
Subpart D_Youth Program Design, Elements, and Parameters
Sec. 664.400 What is a local youth program?
A local youth program is defined as those youth activities offered
by a Local Workforce Investment Board for a designated local workforce
investment area, as specified in 20 CFR part 661.
Sec. 664.405 How must local youth programs be designed?
(a) The design framework of local youth programs must:
(1) Provide an objective assessment of each youth participant, that
meets the requirements of WIA section 129(c)(1)(A), and includes a
review of the academic and occupational skill levels, as well as the
service needs, of each youth;
(2) Develop an individual service strategy for each youth
participant that meets the requirements of WIA section 129(c)(1)(B),
including identifying an age-appropriate career goal and consideration
of the assessment results for each youth; and
(3) Provide preparation for postsecondary educational opportunities,
provide linkages between academic and occupational learning, provide
preparation for employment, and provide effective connections to
intermediary organizations that provide strong links to the job market
and employers.
(4) The requirement in WIA section 123 that eligible providers of
youth services be selected by awarding a grant or contract on a
competitive basis does not apply to the design framework component, such
as services for intake, objective assessment and the development of
individual service strategy, when these services are provided by the
grant recipient/fiscal agent.
(b) The local plan must describe the design framework for youth
program design in the local area, and how the ten program elements
required in Sec. 664.410 are provided within that framework.
(c) Local Boards must ensure appropriate links to entities that will
foster the participation of eligible local area youth. Such links may
include connections to:
(1) Local area justice and law enforcement officials;
(2) Local public housing authorities;
(3) Local education agencies;
(4) Job Corps representatives; and
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(5) Representatives of other area youth initiatives, including those
that serve homeless youth and other public and private youth
initiatives.
(d) Local Boards must ensure that the referral requirements in WIA
section 129(c)(3) for youth who meet the income eligibility criteria are
met, including:
(1) Providing these youth with information regarding the full array
of applicable or appropriate services available through the Local Board
or other eligible providers, or One-Stop partners; and
(2) Referring these youth to appropriate training and educational
programs that have the capacity to serve them either on a sequential or
concurrent basis.
(e) In order to meet the basic skills and training needs of eligible
applicants who do not meet the enrollment requirements of a particular
program or who cannot be served by the program, each eligible youth
provider must ensure that these youth are referred:
(1) For further assessment, as necessary, and
(2) To appropriate programs, in accordance with paragraph (d)(2) of
this section.
(f) Local Boards must ensure that parents, youth participants, and
other members of the community with experience relating to youth
programs are involved in both the design and implementation of its youth
programs.
(g) The objective assessment required under paragraph (a)(1) of this
section or the individual service strategy required under paragraph
(a)(2) of this section is not required if the program provider
determines that it is appropriate to use a recent objective assessment
or individual service strategy that was developed under another
education or training program. (WIA section 129(c)(1).)
Sec. 664.410 Must local programs include each of the ten program
elements listed in WIA section 129(c)(2) as options available to youth
participants?
(a) Yes, local programs must make the following services available
to youth participants:
(1) Tutoring, study skills training, and instruction leading to
secondary school completion, including dropout prevention strategies;
(2) Alternative secondary school offerings;
(3) Summer employment opportunities directly linked to academic and
occupational learning;
(4) Paid and unpaid work experiences, including internships and job
shadowing, as provided in Sec. Sec. 664.460 and 664.470;
(5) Occupational skill training;
(6) Leadership development opportunities, which include community
service and peer-centered activities encouraging responsibility and
other positive social behaviors;
(7) Supportive services, which may include the services listed in
Sec. 664.440;
(8) Adult mentoring for a duration of at least twelve (12) months,
that may occur both during and after program participation;
(9) Followup services, as provided in Sec. 664.450; and
(10) Comprehensive guidance and counseling, including drug and
alcohol abuse counseling, as well as referrals to counseling, as
appropriate to the needs of the individual youth.
(b) Local programs have the discretion to determine what specific
program services will be provided to a youth participant, based on each
participant's objective assessment and individual service strategy. (WIA
sec. 129(c)(2).)
Sec. 664.420 What are leadership development opportunities?
Leadership development opportunities are opportunities that
encourage responsibility, employability, and other positive social
behaviors such as:
(a) Exposure to postsecondary educational opportunities;
(b) Community and service learning projects;
(c) Peer-centered activities, including peer mentoring and tutoring;
(d) Organizational and team work training, including team leadership
training;
(e) Training in decision-making, including determining priorities;
and
(f) Citizenship training, including life skills training such as
parenting, work
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behavior training, and budgeting of resources. (WIA sec. 129(c)(2)(F).)
Sec. 664.430 What are positive social behaviors?
Positive social behaviors are outcomes of leadership opportunities,
often referred to as soft skills, which are incorporated by many local
programs as part of their menu of services. Positive social behaviors
focus on areas that may include the following:
(a) Positive attitudinal development;
(b) Self esteem building;
(c) Openness to working with individuals from diverse racial and
ethnic backgrounds;
(d) Maintaining healthy lifestyles, including being alcohol and drug
free;
(e) Maintaining positive relationships with responsible adults and
peers, and contributing to the well being of one's community, including
voting;
(f) Maintaining a commitment to learning and academic success;
(g) Avoiding delinquency;
(h) Postponed and responsible parenting; and
(i) Positive job attitudes and work skills. (WIA sec. 129(c)(2)(F).)
Sec. 664.440 What are supportive services for youth?
Supportive services for youth, as defined in WIA section 101(46),
may include the following:
(a) Linkages to community services;
(b) Assistance with transportation;
(c) Assistance with child care and dependent care;
(d) Assistance with housing;
(e) Referrals to medical services; and
(f) Assistance with uniforms or other appropriate work attire and
work-related tools, including such items as eye glasses and protective
eye gear. (WIA sec. 129(c)(2)(G).)
Sec. 664.450 What are follow-up services for youth?
(a) Follow-up services for youth may include:
(1) The leadership development and supportive service activities
listed in Sec. Sec. 664.420 and 664.440;
(2) Regular contact with a youth participant's employer, including
assistance in addressing work-related problems that arise;
(3) Assistance in securing better paying jobs, career development
and further education;
(4) Work-related peer support groups;
(5) Adult mentoring; and
(6) Tracking the progress of youth in employment after training.
(b) All youth participants must receive some form of follow-up
services for a minimum duration of 12 months. Follow-up services may be
provided beyond twelve (12) months at the State or Local Board's
discretion. The types of services provided and the duration of services
must be determined based on the needs of the individual. The scope of
these follow-up services may be less intensive for youth who have only
participated in summer youth employment opportunities. (WIA sec.
129(c)(2)(I).)
Sec. 664.460 What are work experiences for youth?
(a) Work experiences are planned, structured learning experiences
that take place in a workplace for a limited period of time. As provided
in WIA section 129(c)(2)(D) and Sec. 664.470, work experiences may be
paid or unpaid.
(b) Work experience workplaces may be in the private, for-profit
sector; the non-profit sector; or the public sector.
(c) Work experiences are designed to enable youth to gain exposure
to the working world and its requirements. Work experiences are
appropriate and desirable activities for many youth throughout the year.
Work experiences should help youth acquire the personal attributes,
knowledge, and skills needed to obtain a job and advance in employment.
The purpose is to provide the youth participant with the opportunities
for career exploration and skill development and is not to benefit the
employer, although the employer may, in fact, benefit from the
activities performed by the youth. Work experiences may be subsidized or
unsubsidized and may include the following elements:
(1) Instruction in employability skills or generic workplace skills
such as those identified by the Secretary's Commission on Achieving
Necessary Skills (SCANS);
(2) Exposure to various aspects of an industry;
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(3) Progressively more complex tasks;
(4) Internships and job shadowing;
(5) The integration of basic academic skills into work activities;
(6) Supported work, work adjustment, and other transition
activities;
(7) Entrepreneurship;
(8) Service learning;
(9) Paid and unpaid community service; and
(10) Other elements designed to achieve the goals of work
experiences.
(d) In most cases, on-the-job training is not an appropriate work
experiences activity for youth participants under age 18. Local program
operators may choose, however, to use this service strategy for eligible
youth when it is appropriate based on the needs identified by the
objective assessment of an individual youth participant. (WIA sec.
129(c)(2)(D).)
Sec. 664.470 Are paid work experiences allowable activities?
Funds under the Act may be used to pay wages and related benefits
for work experiences in the public; private, for-profit or non-profit
sectors where the objective assessment and individual service strategy
indicate that work experiences are appropriate. (WIA sec. 129(c)(2)(D).)
Subpart E_Concurrent Enrollment
Sec. 664.500 May youth participate in both youth and adult/dislocated
worker programs concurrently?
(a) Yes, under the Act, eligible youth are 14 through 21 years of
age. Adults are defined in the Act as individuals age 18 and older.
Thus, individuals ages 18 through 21 may be eligible for both adult and
youth programs. There is no specified age for the dislocated worker
program.
(b) Individuals who meet the respective eligibility requirements may
participate in adult and youth programs concurrently. Concurrent
enrollment is allowable for youth served in programs under WIA titles I
or II. Such individuals must be eligible under the youth or adult/
dislocated worker eligibility criteria applicable to the services
received. Local program operators may determine, for individuals in this
age group, the appropriate level and balance of services under the
youth, adult, dislocated worker, or other services.
(c) Local program operators must identify and track the funding
streams which pay the costs of services provided to individuals who are
participating in youth and adult/dislocated worker programs
concurrently, and ensure that services are not duplicated.
Sec. 664.510 Are Individual Training Accounts allowed for youth
participants?
No, however, individuals age 18 and above, who are eligible for
training services under the adult and dislocated worker programs, may
receive Individual Training Accounts through those programs.
Requirements for concurrent participation requirements are set forth in
Sec. 664.500. To the extent possible, in order to enhance youth
participant choice, youth participants should be involved in the
selection of educational and training activities.
Subpart F_Summer Employment Opportunities
Sec. 664.600 Are Local Boards required to offer summer employment
opportunities in the local youth program?
(a) Yes, Local Boards are required to offer summer youth employment
opportunities that link academic and occupational learning as part of
the menu of services required in Sec. 664.410(a).
(b) Summer youth employment must provide direct linkages to academic
and occupational learning, and may provide other elements and strategies
as appropriate to serve the needs and goals of the participants.
(c) Local Boards may determine how much of available youth funds
will be used for summer and for year-round youth activities.
(d) The summer youth employment opportunities element is not
intended to be a stand-alone program. Local programs should integrate a
youth's participation in that element into a comprehensive strategy for
addressing the youth's employment and training needs. Youths who
participate in summer employment opportunities must be provided with a
minimum of twelve
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months of followup services, as required in Sec. 664.450. (WIA sec.
129(c)(2)(C).)
Sec. 664.610 How is the summer employment opportunities element
administered?
Chief elected officials and Local Boards are responsible for
ensuring that the local youth program provides summer employment
opportunities to youth. The chief elected officials (which may include
local government units operating as a consortium) are the grant
recipients for local youth funds, unless another entity is chosen to be
grant recipient or fiscal agent under WIA section 117(d)(3)(B). If, in
the administration of the summer employment opportunities element of the
local youth program, providers other than the grant recipient/fiscal
agent, are used to provide summer youth employment opportunities, these
providers must be selected by awarding a grant or contract on a
competitive basis, based on the recommendation of the youth council and
on criteria contained in the State Plan. However, the selection of
employers who are providing unsubsidized employment opportunities may be
excluded from the competitive process. (WIA sec. 129(c)(2)(C).)
Sec. 664.620 Do the core indicators described in 20 CFR 666.100(a)(3)
apply to participation in summer employment activities?
Yes, the summer employment opportunities element is one of a number
of activities authorized by the WIA youth program. WIA section 136(b)(2)
(A)(ii) and(B) provides specific core indicators of performance for
youth, and requires that all participating youth be included in the
determination of whether the local levels of performance are met.
Program operators can help ensure positive outcomes for youth
participants by providing them with continuity of services.
Subpart G_One-Stop Services to Youth
Sec. 664.700 What is the connection between the youth program and
the One-Stop service delivery system?
(a) The chief elected official (or designee, under WIA section
117(d)(3)(B)), as the local grant recipient for the youth program is a
required One-Stop partner and is subject to the requirements that apply
to such partners, described in 20 CFR part 662.
(b) In addition to the provisions of 20 CFR part 662, connections
between the youth program and the One-Stop system may include those that
facilitate:
(1) The coordination and provision of youth activities;
(2) Linkages to the job market and employers;
(3) Access for eligible youth to the information and services
required in Sec. Sec. 664.400 and 664.410; and
(4) Other activities designed to achieve the purposes of the youth
program and youth activities as described in WIA section 129(a). (WIA
secs. 121(b)(1)(B)(i); 129.)
Sec. 664.710 Do Local Boards have the flexibility to offer services
to area youth who are not eligible under the youth program through the
One-Stop centers?
Yes, however, One-Stop services for non-eligible youth must be
funded by programs that are authorized to provide services to such
youth. For example, basic labor exchange services under the Wagner-
Peyser Act may be provided to any youth.
Subpart H_Youth Opportunity Grants
Sec. 664.800 How are the recipients of Youth Opportunity Grants
selected?
(a) Youth Opportunity Grants are awarded through a competitive
selection process. The Secretary establishes appropriate application
procedures, selection criteria, and an approval process for awarding
Youth Opportunity Grants to applicants which can accomplish the purpose
of the Act and use available funds in an effective manner in the
Solicitation for Grant Applications announcing the competition.
[[Page 82]]
(b) The Secretary distributes grants equitably among urban and rural
areas by taking into consideration such factors as the following:
(1) The poverty rate in urban and rural communities;
(2) The number of people in poverty in urban and rural communities;
and
(3) The quality of proposals received. (WIA sec.169(a) and (e).)
Sec. 664.810 How does a Local Board or other entity become eligible
to receive a Youth Opportunity Grant?
(a) A Local Board is eligible to receive a Youth Opportunity Grant
if it serves a community that:
(1) Has been designated as an empowerment zone (EZ) or enterprise
community (EC) under section 1391 of the Internal Revenue Code of 1986;
(2) Is located in a State that does not have an EZ or an EC and that
has been designated by its Governor as a high poverty area; or
(3) Is one of two areas in a State that has been designated by the
Governor as an area for which a local board may apply for a Youth
Opportunity Grant, and that meets the poverty rate criteria in section
1392 (a)(4), (b), and (d) of the Internal Revenue Code of 1986.
(b) An entity other than a Local Board is eligible to receive a
grant if that entity:
(1) Is a WIA Indian and Native American grant recipient under WIA
section 166; and
(2) Serves a community that:
(i) Meets the poverty rate criteria in section 1392(a)(4), (b), and
(d) of the Internal Revenue Code of 1986; and
(ii) Is located on an Indian reservation or serves Oklahoma Indians
or Alaska Native villages or Native groups, as provided in WIA section
169 (d)(2)(B). (WIA sec. 169(c) and (d).)
Sec. 664.820 Who is eligible to receive services under
Youth Opportunity Grants?
All individuals ages 14 through 21 who reside in the community
identified in the grant are eligible to receive services under the
grant. (WIA sec. 169(a).)
Sec. 664.830 How are performance measures for Youth Opportunity Grants
determined?
(a) The Secretary negotiates performance measures, including
appropriate performance levels for each indicator, with each selected
grantee, based on information contained in the application.
(b) Performance indicators for the measures negotiated under Youth
Opportunity Grants are the indicators of performance provided in WIA
sections 136(b)(2)(A) and (B). (WIA sec. 169(f).).
PART 665_STATEWIDE WORKFORCE INVESTMENT ACTIVITIES UNDER TITLE I OF
THE WORKFORCE INVESTMENT ACT--Table of Contents
Subpart A_General Description
Sec.
665.100 What are the Statewide workforce investment activities under
title I of WIA?
665.110 How are Statewide workforce investment activities funded?
Subpart B_Required and Allowable Statewide Workforce Investment
Activities
665.200 What are required Statewide workforce investment activities?
665.210 What are allowable Statewide workforce investment activities?
665.220 Who is an ``incumbent worker'' for purposes of Statewide
workforce investment activities?
Subpart C_Rapid Response Activities
665.300 What are rapid response activities and who is responsible for
providing them?
665.310 What rapid response activities are required?
665.320 May other activities be undertaken as part of rapid response?
665.330 Are the NAFTA-TAA program requirements for rapid response also
required activities?
665.340 What is meant by ``provision of additional assistance'' in WIA
section 134(a)(2)(A)(ii)?
Authority: Section 506(c), Pub. L. 105-220; 20 U.S.C. 9276(c).
Source: 65 FR 49415, Aug. 11, 2000, unless otherwise noted.
[[Page 83]]
Subpart A_General Description
Sec. 665.100 What are the Statewide workforce investment activities
under title I of WIA?
Statewide workforce investment activities include Statewide
employment and training activities for adults and dislocated workers, as
described in WIA section 134(a), and Statewide youth activities, as
described in WIA section 129(b). They include both required and
allowable activities. In accordance with the requirements of this
subpart, the State may develop policies and strategies for use of
Statewide workforce investment funds. Descriptions of these policies and
strategies must be included in the State Plan. (WIA secs. 129(b),
134(a).)
Sec. 665.110 How are Statewide workforce investment activities funded?
(a) Except for the Statewide rapid response activities described in
paragraph (c) of this section, Statewide workforce investment activities
are supported by funds reserved by the Governor under WIA section
128(a).
(b) Funds reserved by the Governor for Statewide workforce
investment activities may be combined and used for any of the activities
authorized in WIA sections 129(b), 134(a)(2)(B) or 134(a)(3)(A) (which
are described in Sec. Sec. 665.200 and 665.210), regardless of whether
the funds were allotted through the youth, adult, or dislocated worker
funding streams.
(c) Funds for Statewide rapid response activities are reserved under
WIA section 133(a)(2) and may be used to provide the activities
authorized at section 134(a)(2)(A) (which are described in Sec. Sec.
665.310 through 665.330). (WIA secs. 129(b), 133(a)(2), 134(a)(2)(B),
and 134(a)(3)(A).)
Subpart B_Required and Allowable Statewide Workforce Investment
Activities
Sec. 665.200 What are required Statewide workforce investment
activities?
Required Statewide workforce investment activities are:
(a) Required rapid response activities, as described in Sec.
665.310;
(b) Disseminating:
(1) The State list of eligible providers of training services
(including those providing non-traditional training services), for
adults and dislocated workers;
(2) Information identifying eligible providers of on-the-job
training (OJT) and customized training;
(3) Performance and program cost information about these providers,
as described in 20 CFR 663.540; and
(4) A list of eligible providers of youth activities as described in
WIA section 123;
(c) States must assure that the information listed in paragraphs
(b)(1) through (4) of this section is widely available.
(d) Conducting evaluations, under WIA section 136(e), of workforce
investment activities for adults, dislocated workers and youth, in order
to establish and promote methods for continuously improving such
activities to achieve high-level performance within, and high-level
outcomes from, the Statewide workforce investment system. Such
evaluations must be designed and conducted in conjunction with the State
and Local Boards, and must include analysis of customer feedback,
outcome and process measures in the workforce investment system. To the
maximum extent practicable, these evaluations should be conducted in
coordination with Federal evaluations carried out under WIA section 172.
(e) Providing incentive grants:
(1) To local areas for regional cooperation among Local Boards
(including Local Boards for a designated region, as described in 20 CFR
661.290);
(2) For local coordination of activities carried out under WIA; and
(3) For exemplary performance by local areas on the performance
measures.
(f) Providing technical assistance to local areas that fail to meet
local performance measures.
(g) Assisting in the establishment and operation of One-Stop
delivery systems, in accordance with the strategy described in the State
workforce investment plan. (WIA sec. 112(b)(14).)
(h) Providing additional assistance to local areas that have high
concentrations of eligible youth.
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(i) Operating a fiscal and management accountability information
system, based on guidelines established by the Secretary after
consultation with the Governors, chief elected officials, and One-Stop
partners, as required by WIA section 136(f). (WIA secs. 129(b)(2),
134(a)(2), and 136(e)(2).)
Sec. 665.210 What are allowable Statewide workforce investment
activities?
Allowable Statewide workforce investment activities include:
(a) State administration of the adult, dislocated worker and youth
workforce investment activities, consistent with the five percent
administrative cost limitation at 20 CFR 667.210(a)(1).
(b) Providing capacity building and technical assistance to local
areas, including Local Boards, One-Stop operators, One-Stop partners,
and eligible providers, which may include:
(1) Staff development and training; and
(2) The development of exemplary program activities.
(c) Conducting research and demonstrations.
(d) Establishing and implementing:
(1) Innovative incumbent worker training programs, which may include
an employer loan program to assist in skills upgrading; and
(2) Programs targeted to Empowerment Zones and Enterprise
Communities.
(e) Providing support to local areas for the identification of
eligible training providers.
(f) Implementing innovative programs for displaced homemakers, and
programs to increase the number of individuals trained for and placed in
non-traditional employment.
(g) Carrying out such adult and dislocated worker employment and
training activities as the State determines are necessary to assist
local areas in carrying out local employment and training activities.
(h) Carrying out youth activities Statewide.
(i) Preparation and submission to the Secretary of the annual
performance progress report as described in 20 CFR 667.300(e). (WIA
secs. 129(b)(3) and 134(a)(3).)
Sec. 665.220 Who is an ``incumbent worker'' for purposes of Statewide
workforce investment activities?
States may establish policies and definitions to determine which
workers, or groups of workers, are eligible for incumbent worker
services under this subpart. An incumbent worker is an individual who is
employed, but an incumbent worker does not necessarily have to meet the
eligibility requirements for intensive and training services for
employed adults and dislocated workers at 20 CFR 663.220(b) and 663.310.
(WIA sec. 134(a)(3)(A)(iv)(I).)
Subpart C_Rapid Response Activities
Sec. 665.300 What are rapid response activities and who is responsible
for providing them?
(a) Rapid response activities are described in Sec. Sec. 665.310
through 665.330. They encompass the activities necessary to plan and
deliver services to enable dislocated workers to transition to new
employment as quickly as possible, following either a permanent closure
or mass layoff, or a natural or other disaster resulting in a mass job
dislocation.
(b) The State is responsible for providing rapid response
activities. Rapid response is a required activity carried out in local
areas by the State, or an entity designated by the State, in conjunction
with the Local Board and chief elected officials. The State must
establish methods by which to provide additional assistance to local
areas that experience disasters, mass layoffs, plant closings, or other
dislocation events when such events substantially increase the number of
unemployed individuals.
(c) States must establish a rapid response dislocated worker unit to
carry out Statewide rapid response activities. (WIA secs. 101(38),
112(b)(17)(A)(ii) and 134(a)(2)(A).)
Sec. 665.310 What rapid response activities are required?
Rapid response activities must include:
(a) Immediate and on-site contact with the employer, representatives
of the affected workers, and the local
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community, which may include an assessment of the:
(1) Layoff plans and schedule of the employer;
(2) Potential for averting the layoff(s) in consultation with State
or local economic development agencies, including private sector
economic development entities;
(3) Background and probable assistance needs of the affected
workers;
(4) Reemployment prospects for workers in the local community; and
(5) Available resources to meet the short and long-term assistance
needs of the affected workers.
(b) The provision of information and access to unemployment
compensation benefits, comprehensive One-Stop system services, and
employment and training activities, including information on the Trade
Adjustment Assistance (TAA) program and the NAFTA-TAA program (19 U.S.C.
2271 et seq.);
(c) The provision of guidance and/or financial assistance in
establishing a labor-management committee voluntarily agreed to by labor
and management, or a workforce transition committee comprised of
representatives of the employer, the affected workers and the local
community. The committee may devise and oversee an implementation
strategy that responds to the reemployment needs of the workers. The
assistance to this committee may include:
(1) The provision of training and technical assistance to members of
the committee;
(2) Funding the operating costs of a committee to enable it to
provide advice and assistance in carrying out rapid response activities
and in the design and delivery of WIA-authorized services to affected
workers. Typically, such support will last no longer than six months;
and
(3) Providing a list of potential candidates to serve as a neutral
chairperson of the committee.
(d) The provision of emergency assistance adapted to the particular
closing, layoff or disaster.
(e) The provision of assistance to the local board and chief elected
official(s) to develop a coordinated response to the dislocation event
and, as needed, obtain access to State economic development assistance.
Such coordinated response may include the development of an application
for National Emergency Grant under 20 CFR part 671. (WIA secs. 101(38)
and 134(a)(2)(A).)
Sec. 665.320 May other activities be undertaken as part of rapid
response?
Yes, a State or designated entity may provide rapid response
activities in addition to the activities required to be provided under
Sec. 665.310. In order to provide effective rapid response upon
notification of a permanent closure or mass layoff, or a natural or
other disaster resulting in a mass job dislocation, the State or
designated entity may:
(a) In conjunction, with other appropriate Federal, State and Local
agencies and officials, employer associations, technical councils or
other industry business councils, and labor organizations:
(1) Develop prospective strategies for addressing dislocation
events, that ensure rapid access to the broad range of allowable
assistance;
(2) Identify strategies for the aversion of layoffs; and
(3) Develop and maintain mechanisms for the regular exchange of
information relating to potential dislocations, available adjustment
assistance, and the effectiveness of rapid response strategies.
(b) In collaboration with the appropriate State agency(ies), collect
and analyze information related to economic dislocations, including
potential closings and layoffs, and all available resources in the State
for dislocated workers in order to provide an adequate basis for
effective program management, review and evaluation of rapid response
and layoff aversion efforts in the State.
(c) Participate in capacity building activities, including providing
information about innovative and successful strategies for serving
dislocated workers, with local areas serving smaller layoffs.
(d) Assist in devising and overseeing strategies for:
(1) Layoff aversion, such as prefeasibility studies of avoiding a
plant closure through an option for a
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company or group, including the workers, to purchase the plant or
company and continue it in operation;
(2) Incumbent worker training, including employer loan programs for
employee skill upgrading; and
(3) Linkages with economic development activities at the Federal,
State and local levels, including Federal Department of Commerce
programs and available State and local business retention and
recruitment activities.
Sec. 665.330 Are the NAFTA-TAA program requirements for rapid response
also required activities?
The Governor must ensure that rapid response activities under WIA
are made available to workers who, under the NAFTA Implementation Act
(Public Law 103-182), are members of a group of workers (including those
in any agricultural firm or subdivision of an agricultural firm) for
which the Governor has made a preliminary finding that:
(a) A significant number or proportion of the workers in such firm
or an appropriate subdivision of the firm have become totally or
partially separated, or are threatened to become totally or partially
separated; and
(b) Either:
(1) The sales or production, or both, of such firm or subdivision
have decreased absolutely; and
(2) Imports from Mexico or Canada of articles like or directly
competitive with those produced by such firm or subdivision have
increased; or
(c) There has been a shift in production by such workers' firm or
subdivision to Mexico or Canada of articles which are produced by the
firm or subdivision.
Sec. 665.340 What is meant by ``provision of additional assistance''
in WIA section 134(a)(2)(A)(ii)?
Up to 25 percent of dislocated worker funds may be reserved for
rapid response activities. Once the State has reserved adequate funds
for rapid response activities, such as those described in Sec. Sec.
665.310 and 665.320, the remainder of the funds may be used by the State
to provide funds to local areas, that experience increased numbers of
unemployed individuals due to natural disasters, plant closings, mass
layoffs or other events, for provision of direct services to
participants (such as intensive, training, and other services) if there
are not adequate local funds available to assist the dislocated workers.
PART 666_PERFORMANCE ACCOUNTABILITY UNDER TITLE I OF
THE WORKFORCE INVESTMENT ACT--Table of Contents
Subpart A_State Measures of Performance
Sec.
666.100 What performance indicators must be included in a State's plan?
666.110 May a Governor require additional indicators of performance?
666.120 What are the procedures for negotiating annual levels of
performance?
666.130 Under what conditions may a State or DOL request revisions to
the State negotiated levels of performance?
666.140 Which individuals receiving services are included in the core
indicators of performance?
666.150 What responsibility do States have to use quarterly wage record
information for performance accountability?
Subpart B_Incentives and Sanctions for State Performance
666.200 Under what circumstances is a State eligible for an Incentive
Grant?
666.205 What are the time frames under which States submit performance
progress reports and apply for incentive grants?
666.210 How may Incentive Grant funds be used?
666.220 What information must be included in a State Board's application
for an Incentive Grant?
666.230 How does the Department determine the amounts for Incentive
Grant awards?
666.240 Under what circumstances may a sanction be applied to a State
that fails to achieve negotiated levels of performance for
title I?
Subpart C_Local Measures of Performance
666.300 What performance indicators apply to local areas?
666.310 What levels of performance apply to the indicators of
performance in local areas?
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Subpart D_Incentives and Sanctions for Local Performance
666.400 Under what circumstances are local areas eligible for State
Incentive Grants?
666.410 How may local incentive awards be used?
666.420 Under what circumstances may a sanction be applied to local
areas for poor performance?
Authority: Sec. 506(c), Pub. L. 105-220; 20 U.S.C. 9276(c).
Source: 65 FR 49402, Aug. 11, 2000, unless otherwise noted.
Subpart A_State Measures of Performance
Sec. 666.100 What performance indicators must be included in a
State's plan?
(a) All States submitting a State Plan under WIA title I, subtitle B
must propose expected levels of performance for each of the core
indicators of performance for the adult, dislocated worker and youth
programs, respectively and the two customer satisfaction indicators.
(1) For the Adult program, these indicators are:
(i) Entry into unsubsidized employment;
(ii) Retention in unsubsidized employment six months after entry
into the employment;
(iii) Earnings received in unsubsidized employment six months after
entry into the employment; and
(iv) Attainment of a recognized credential related to achievement of
educational skills (such as a secondary school diploma or its recognized
equivalent), or occupational skills, by participants who enter
unsubsidized employment.
(2) For the Dislocated Worker program, these indicators are:
(i) Entry into unsubsidized employment;
(ii) Retention in unsubsidized employment six months after entry
into the employment;
(iii) Earnings received in unsubsidized employment six months after
entry into the employment; and
(iv) Attainment of a recognized credential related to achievement of
educational skills (such as a secondary school diploma or its recognized
equivalent), or occupational skills, by participants who enter
unsubsidized employment.
(3) For the Youth program, these indicators are:
(i) For eligible youth aged 14 through 18:
(A) Attainment of basic skills goals, and, as appropriate, work
readiness or occupational skills goals, up to a maximum of three goals
per year;
(B) Attainment of secondary school diplomas and their recognized
equivalents; and
(C) Placement and retention in postsecondary education, advanced
training, military service, employment, or qualified apprenticeships.
(ii) For eligible youth aged 19 through 21:
(A) Entry into unsubsidized employment;
(B) Retention in unsubsidized employment six months after entry into
the employment;
(C) Earnings received in unsubsidized employment six months after
entry into the employment; and
(D) Attainment of a recognized credential related to achievement of
educational skills (such as a secondary school diploma or its recognized
equivalent), or occupational skills, by participants who enter post-
secondary education, advanced training, or unsubsidized employment.
(4) A single customer satisfaction measure for employers and a
single customer satisfaction indicator for participants must be used for
the WIA title I, subtitle B programs for adults, dislocated workers and
youth. (WIA sec. 136(b)(2).)
(b) After consultation with the representatives identified in WIA
sections 136(i) and 502(b), the Departments of Labor and Education will
issue definitions for the performance indicators established under title
I and title II of WIA. (WIA sec. 136 (b), (f) and (i).)
Sec. 666.110 May a Governor require additional indicators of performance?
Yes, Governors may develop additional indicators of performance for
adults, youth and dislocated worker activities. These indicators must be
included in the State Plan. (WIA sec. 136(b)(2)(C).)
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Sec. 666.120 What are the procedures for negotiating annual levels of
performance?
(a) We issue instructions on the specific information that must
accompany the State Plan and that is used to review the State's expected
levels of performance. The instructions may require that levels of
performance for years two and three be expressed as a percentage
improvement over the immediately preceding year's performance,
consistent with the objective of continuous improvement.
(b) States must submit expected levels of performance for the
required indicators for each of the first three program years covered by
the Plan.
(c) The Secretary and the Governor must reach agreement on levels of
performance for each core indicator and the customer satisfaction
indicators. In negotiating these levels, the following must be taken
into account:
(1) The expected levels of performance identified in the State Plan;
(2) The extent to which the levels of performance for each core
indicator assist in achieving high customer satisfaction;
(3) The extent to which the levels of performance promote continuous
improvement and ensure optimal return on the investment of Federal
funds; and
(4) How the levels compare with those of other States, taking into
account factors including differences in economic conditions,
participant characteristics, and the proposed service mix and
strategies.
(d) The levels of performance agreed to under paragraph (c) of this
section will be the State's negotiated levels of performance for the
first three years of the State Plan. These levels will be used to
determine whether sanctions will be applied or incentive grant funds
will be awarded.
(e) Before the fourth year of the State Plan, the Secretary and the
Governor must reach agreement on levels of performance for each core
indicator and the customer satisfaction indicators for the fourth and
fifth years covered by the plan. In negotiating these levels, the
factors listed in paragraph (c) of this section must be taken into
account.
(f) The levels of performance agreed to under paragraph (e) of this
section will be the State negotiated levels of performance for the
fourth and fifth years of the plan and must be incorporated into the
State Plan.
(g) Levels of performance for the additional indicators developed by
the Governor, including additional indicators to demonstrate and measure
continuous improvement toward goals identified by the State, are not
part of the negotiations described in paragraphs (c) and (e) of this
section. (WIA sec. 136(b)(3).)
(h) State negotiated levels of performance may be revised in
accordance with Sec. 666.130.
Sec. 666.130 Under what conditions may a State or DOL request revisions
to the State negotiated levels of performance?
(a) The DOL guidelines describe when and under what circumstances a
Governor may request revisions to negotiated levels. These circumstances
include significant changes in economic conditions, in the
characteristics of participants entering the program, or in the services
to be provided from when the initial plan was submitted and approved.
(WIA sec. 136(b)(3)(A)(vi).)
(b) The guidelines will establish the circumstances under which a
State will be required to submit revisions under specified
circumstances.
Sec. 666.140 Which individuals receiving services are included in the
core indicators of performance?
(a)(1) The core indicators of performance apply to all individuals
who are registered under 20 CFR 663.105 and 664.215 for the adult,
dislocated worker and youth programs, except for those adults and
dislocated workers who participate exclusively in self-service or
informational activities. (WIA sec. 136(b)(2)(A).)
(2) Self-service and informational activities are those core
services that are made available and accessible to the general public,
that are designed to inform and educate individuals about the labor
market and their employment strengths, weaknesses, and the range of
services appropriate to their situation, and that do not require
significant
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staff involvement with the individual in terms of resources or time.
(b) For registered participants, a standardized record that includes
appropriate performance information must be maintained in accordance
with WIA section 185(a)(3).
(c) Performance will be measured on the basis of results achieved by
registered participants, and will reflect services provided under WIA
title I, subtitle B programs for adults, dislocated workers and youth.
Performance may also take into account services provided to participants
by other One-Stop partner programs and activities, to the extent that
the local MOU provides for the sharing of participant information.
Sec. 666.150 What responsibility do States have to use quarterly wage
record information for performance accountability?
(a) States must, consistent with State laws, use quarterly wage
record information in measuring the progress on State and local
performance measures. In order to meet this requirement the use of
social security numbers from registered participants and such other
information as is necessary to measure the progress of those
participants through quarterly wage record information is authorized.
(b) The State must include in the State Plan a description of the
State's performance accountability system, and a description of the
State's strategy for using quarterly wage record information to measure
the progress on State and local performance measures. The description
must identify the entities that may have access to quarterly wage record
information for this purpose.
(c) ``Quarterly wage record information'' means information
regarding wages paid to an individual, the social security account
number (or numbers, if more than one) of the individual and the name,
address, State, and (when known) the Federal employer identification
number of the employer paying the wages to the individual. (WIA sec.
136(f)(2).)
Subpart B_Incentives and Sanctions for State Performance
Sec. 666.200 Under what circumstances is a State eligible for an
Incentive Grant?
A State is eligible to apply for an Incentive Grant if its
performance for the immediately preceding year exceeds:
(a) The State's negotiated levels of performance for the required
core indicators for the adult, dislocated worker and youth programs
under title I of WIA as well as the customer satisfaction indicators for
WIA title I programs;
(b) The adjusted levels of performance for title II Adult Education
and Family Literacy programs; and
(c) The adjusted levels of performance under section 113 of the Carl
D. Perkins Vocational and Technical Education Act (20 U.S.C. 2301 et
seq.). (WIA sec. 503.)
Sec. 666.205 What are the time frames under which States submit
performance progress reports and apply for incentive grants?
(a) State performance progress reports must be filed by the due date
established in reporting instructions issued by the Department.
(b) Based upon the reports filed under paragraph (a) of this
section, we will determine the amount of funds available, under WIA
title I, to each eligible State for incentive grants, in accordance with
the criteria of Sec. 666.230. We will publish the award amounts for
each eligible State, after consultation with the Secretary of Education,
within ninety (90) days after the due date for performance progress
reports established under paragraph (a) of this section.
(c) Within forty-five (45) days of the publication of award amounts
under paragraph (b) of this section, States may apply for incentive
grants in accordance with the requirements of Sec. 666.220.