[Federal Register Volume 88, Number 225 (Friday, November 24, 2023)]
[Rules and Regulations]
[Pages 82658-82737]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-25372]
[[Page 82657]]
Vol. 88
Friday,
No. 225
November 24, 2023
Part III
Department of Labor
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Employment and Training Administration
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20 CFR Parts 651, 652, 653, et al.
Wagner-Peyser Act Staffing; Final Rule
Federal Register / Vol. 88, No. 225 / Friday, November 24, 2023 /
Rules and Regulations
[[Page 82658]]
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DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Parts 651, 652, 653, and 658
[Docket No. ETA-2022-0003]
RIN 1205-AC02
Wagner-Peyser Act Staffing
AGENCY: Employment and Training Administration, Labor.
ACTION: Final rule.
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SUMMARY: The U.S. Department of Labor (Department or DOL) is issuing a
final rule that requires States to use State merit staff to provide
Wagner-Peyser Act Employment Service (ES) services. In the notice of
proposed rulemaking (NPRM), the Department proposed that this
requirement would apply to all States. However, the Department
recognizes three States that have been approved by the Department to
administer ES services using alternative staffing models for decades
and is allowing only these three States to continue using the
alternative staffing models. The requirement to use State merit staff
to provide all ES services applies to all other States, including those
States that implemented staffing flexibility under the 2020 Final Rule.
The Department additionally is revising the ES regulations to
strengthen the provision of services to migrant or seasonal farmworkers
(MSFWs) and to enhance the protections afforded by the Monitor Advocate
System and the Employment Service and Employment-Related Law Complaint
System (Complaint System). States have 24 months to comply with this
final rule.
DATES:
Effective Date: This final rule is effective January 23, 2024.
Compliance Date: All States will have 24 months from the effective
date to comply with the requirements of this final rule. The compliance
date of the final rule is January 22, 2026.
FOR FURTHER INFORMATION CONTACT: Kim Vitelli, Administrator, Office of
Workforce Investment, Employment and Training Administration, U.S.
Department of Labor, 200 Constitution Avenue NW, Room C-4526,
Washington, DC 20210, Telephone: (202) 693-3980 (voice) (this is not a
toll-free number). For persons with a hearing or speech disability who
need assistance to use the telephone system, please dial 711 to access
telecommunications relay services.
SUPPLEMENTARY INFORMATION:
Preamble Table of Contents
I. Acronyms and Abbreviations
II. Executive Summary
III. Background and Justification
IV. General Comments on the Proposed Rule
V. Section-by-Section Discussion of Final Rule
A. Technical Amendments and Global Edits
B. Part 651--General Provisions Governing the Wagner-Peyser Act
Employment Service
C. Part 652--Establishment and Functioning of State Employment
Service
D. Part 653--Services of the Wagner-Peyser Act Employment
Service System
E. Part 658--Administrative Provisions Governing the Wagner-
Peyser Act Employment Service
VI. Rulemaking Analyses and Notices
A. Executive Orders 12866 (Regulatory Planning and Review),
13563 (Improving Regulation and Regulatory Review), and 14094
(Modernizing Regulatory Review) and Subtitle E of the Small Business
Regulatory Enforcement Fairness Act of 1996
B. Regulatory Flexibility Act, Small Business Regulatory
Enforcement Fairness Act of 1996, and Executive Order 13272 (Proper
Consideration of Small Entities in Agency Rulemaking)
C. Paperwork Reduction Act of 1995
D. Executive Order 13132 (Federalism)
E. Unfunded Mandates Reform Act of 1995
F. Executive Order 13175 (Indian Tribal Governments)
G. Plain Language
I. Acronyms and Abbreviations
2020 Final Rule Wagner-Peyser Act Staffing Flexibility; Final Rule, 85
FR 592 (Jan. 6, 2020)
AJC(s) American Job Center(s) (also known as one-stop(s) or one-stop
center(s))
AOP(s) Agricultural Outreach Plan(s)
ARS Agricultural Recruitment System
BFOQ bona fide occupational qualification
BLS U.S. Bureau of Labor Statistics
CARES Act Coronavirus Aid, Relief, and Economic Security Act
CFR Code of Federal Regulations
Complaint System Employment Service and Employment-Related Law
Complaint System
COVID-19 coronavirus disease 2019
CRC DOL Civil Rights Center
CSRA Civil Service Reform Act
Department or DOL U.S. Department of Labor
EEOC Equal Employment Opportunity Commission
E.O. Executive Order
EO Officer(s) Equal Opportunity Officer(s)
ES Wagner-Peyser Act Employment Service
ETA Employment and Training Administration
FR Federal Register
FTE(s) full-time equivalent(s)
FY(s) Fiscal Year(s)
IC(s) information collection(s)
ICR(s) information collection request(s)
IPA Intergovernmental Personnel Act of 1970
IT information technology
LEP limited English proficiency
MOU(s) Memorandum/a of Understanding
MSFW(s) migrant or seasonal farmworker(s)
MSPA Migrant and Seasonal Agricultural Worker Protection Act
NAICS North American Industry Classification System
NFJP National Farmworker Jobs Program
NMA National Monitor Advocate
NPRM or proposed rule notice of proposed rulemaking
O*NET Occupational Information Network
OALJ Office of Administrative Law Judges
OFLC Office of Foreign Labor Certification
OIRA Office of Information and Regulatory Affairs
OMB Office of Management and Budget
OPM Office of Personnel Management
OSHA Occupational Safety and Health Administration
OWI Office of Workforce Investment
PIRL Participant Individual Record Layout
PRA Paperwork Reduction Act of 1995
Pub. L. Public Law
PY(s) Program Year(s)
QCEW Quarterly Census of Employment and Wages
RA(s) Regional Administrator(s)
RESEA Reemployment Services and Eligibility Assessment
RFA Regulatory Flexibility Act
RIN Regulation Identifier Number
RMA(s) Regional Monitor Advocate(s)
Secretary Secretary of Labor
SMA(s) State Monitor Advocate(s)
SNAP Supplemental Nutrition Assistance Program
SOC Standard Occupational Classification
SSA Social Security Act
Stat. United States Statutes at Large
SWA(s) State Workforce Agency/ies
TAA Trade Adjustment Assistance
TANF Temporary Assistance to Needy Families
UI unemployment insurance
UMRA Unfunded Mandates Reform Act of 1995
U.S.C. United States Code
WHD Wage and Hour Division
WIA Workforce Investment Act of 1998
[[Page 82659]]
WIOA Workforce Innovation and Opportunity Act
II. Executive Summary
The Department is amending its regulations regarding Wagner-Peyser
Act staffing to require that States use State merit staff to provide ES
services, except three States--Colorado, Massachusetts, and Michigan--
that have longstanding reliance interests in using alternative staffing
models. The final rule requires these three States to participate in
rigorous multistate evaluation activities to be conducted by the
Department to determine whether such models are empirically supported.
This evaluation will include review of services delivered by States
that use State merit-staffing, as necessary.
In the NPRM, the Department proposed to require that all States use
State merit staff to deliver ES services. The Department determined
that it is vital for the ES to be administered so that States deliver
services effectively and equitably to unemployment insurance (UI)
beneficiaries and other ES customers, including services provided to
MSFWs. In the NPRM, the Department reasoned that the demands placed on
State UI systems by the economic impact of the coronavirus disease 2019
(COVID-19) pandemic highlighted the necessity of States to be able to
rely on eligible ES State merit staff to be deployed to assist with UI
activities that must be performed by State merit staff.\1\ The
Department noted that States also have experienced the benefits of
deploying ES State merit staff to assist with UI activities in response
to recessions, the onset of natural disasters, and mass regional
layoffs. The Department also noted that requiring States to utilize
State merit staff to deliver ES services would help to ensure that ES
services are delivered by qualified, nonpartisan personnel. These
professionals would be required to meet objective professional
qualifications, trained to assure high-quality performance, and
expected to maintain certain transparent standards of performance.
States would be required to assure that employees are treated fairly
and protected against partisan political coercion. This final rule
adopts the proposal that States are required to use State merit staff
to deliver ES services, with one change explained in the following
paragraph.
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\1\ https://www.dol.gov/agencies/eta/advisories/unemployment-insurance-program-letter-no-12-01-change-2.
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While the Department maintains its position that aligning ES and UI
promotes efficiency and uniformity in the operation of the ES, the
Department also recognizes that three States--Colorado, Massachusetts,
and Michigan--have been approved by the Department for decades to
deliver ES services using staffing models alternative to full State
merit-staffing. The Department received many comments on the NPRM
regarding the longstanding reliance interests of these States and the
potential disruptions to service delivery in these States specifically
that could result from having to implement a complete State merit-
staffing requirement. Based on these comments, the Department is
permitting these three States, which were authorized to use alternative
staffing models since the 1990s, to use the staffing model consistent
with that previously authorized for that State. These three States may
use the merit-staffing flexibility only to the same extent the
Department previously authorized prior to February 5, 2020. Also, the
final rule requires these three States to participate in rigorous
evaluation activities to be conducted by the Department to determine
whether such models are empirically supported. The Department is
requiring that State Monitor Advocate (SMA) functions be performed by
State merit staff in all States because SMAs monitor the State
Workforce Agency (SWA), must report on SWA compliance to the State
Administrator, and liaise between the SWA and external groups. Because
the SMA position requires overseeing State agency functions and
creating accountability for those functions, including discussing
needed process improvements with State officials and ETA's Regional and
National Monitor Advocates, such oversight functions are more
appropriately performed through State merit-staffing.
The Department is additionally revising the ES regulations to
strengthen the provision of services to MSFWs and to enhance the
protections afforded by the Monitor Advocate System and the Complaint
System. These changes include the following:
Better serving MSFWs and promoting equity in the workforce
system, including requiring States to use State merit staff to provide
ES services to MSFWs.
Revising several defined terms related to the provision of
ES services to MSFWs to modify the criteria for designating significant
MSFW one-stop centers and significant MSFW States, and to ensure that
full-time students who otherwise meet the criteria set forth in the
definitions will be afforded the same benefits and protections under
the ES as other MSFWs.
Strengthening the role and status of SMAs, including
requirements to help to ensure that States employ highly qualified
candidates, that SMAs have the appropriate authority necessary to
effectively carry out their duties, and that SMAs are not assigned
duties that are inconsistent with their role to provide oversight.
Prohibiting the State Administrator or ES staff from
retaliating against staff, including against the SMA, for monitoring or
raising any issues or concerns regarding non-compliance with the ES
regulations.
Requiring SMAs to conduct onsite reviews of one-stop
centers regardless of whether the one-stop center is designated as a
significant MSFW one-stop center.
Requiring the SMA to establish an ongoing liaison with the
State-level Equal Opportunity Officer (E.O. Officer) to enhance equity
and inclusion for farmworkers.
Further specifying SWA staffing requirements for
significant MSFW one-stop centers.
Requiring SWAs to collect and report data on the number of
reportable individuals who are MSFWs to help SWAs, SMAs, and ETA
monitor equity in the provision of ES services to MSFWs.
Aligning the ES regulations with the language access
requirements of the Workforce Innovation and Opportunity Act (WIOA)
nondiscrimination regulations at 29 CFR 38.9 to reduce duplication and
to ensure States provide the broadest language access protections
available for MSFWs with limited English proficiency (LEP).
Strengthening outreach to MSFWs by, among other things,
requiring SWAs to conduct outreach to MSFWs on an ongoing basis;
specifying that all States must have some degree of outreach at all
times and full-time outreach staff must spend 100 percent of their time
on the outreach responsibilities described at Sec. 653.107(b);
requiring SWAs to employ enough outreach staff to contact a majority of
MSFWs in their States annually; prohibiting SWAs from relying on
National Farmworker Jobs Program (NFJP) grantee activities as a
substitute to meet outreach obligations; specifying that SWAs must
ensure hiring officials put a strong emphasis on hiring qualified
candidates for outreach staff positions; and requiring outreach
staffing levels to align with and be supported by information in the
Agricultural Outreach Plan (AOP) that a State must submit pursuant to
Sec. 653.107(d).
Changing the record retention requirement for outreach
logs from 2
[[Page 82660]]
years to 3 years to align with the Office of Management and Budget
(OMB) Uniform Administrative Requirements, Cost Principles, and Audit
Requirements for Federal awards to non-Federal Entities (Uniform
Guidance) record retention requirements at 2 CFR 200.334.
Amending the information SWAs must include in their AOP to
include the number of full-time and part-time outreach staff that the
State will employ and a description of how the SWA intends to staff
significant MSFW one-stop centers in accordance with Sec. 653.111.
Removing ``random'' from the definition of field check to
ensure SWAs are able to target the field checks that they conduct in
response to known or suspected compliance issues.
Revising several regulations within part 658, subpart E,
to conform with proposed revisions to definitions listed at Sec.
651.10, remove redundancies and make other non-substantive technical
edits, clarify or modify certain requirements, and improve equity and
inclusion for MSFWs in the ES system.
Revising requirements for how ETA regional offices process
complaints to align with the revised process SWAs must follow in
referring nondiscrimination complaints under Sec. 658.411(c) and to
refine other requirements applicable to regional offices.
The Department also is making technical amendments and global edits
to modernize the ES regulations, to clarify and use plain language, and
to further promote equity by using gender-inclusive language throughout
the regulations.
In the NPRM, the Department proposed an 18-month transition period
for States to comply with the requirements in this rulemaking. Based on
comments received on the NPRM indicating that States would need more
time to comply, the Department is providing 24 months to comply with
the provisions of the final rule.
The final rule adds severability provisions in parts 652, 653, and
658.
This final rule reflects changes made in response to public
comments received on the NPRM that was published on April 20, 2022, at
87 FR 23700. The Department received many comments from the public and
nonprofit sectors, as well as private citizens. The Department
considered these comments in determining this final rule, and the
changes made to the regulatory text are detailed below in the
Department's responses to related comments.
III. Background and Justification
The Wagner-Peyser Act of 1933, 29 U.S.C. 49 et seq., established
the ES program, which is a nationwide system of public employment
offices that provide public labor-exchange services. The ES program
seeks to improve the functioning of the nation's labor markets by
matching job seekers with employers that are seeking workers. Section
3(a) of the Wagner-Peyser Act directs the Secretary of Labor
(Secretary) to assist States by developing and prescribing minimum
standards of efficiency and promoting uniformity in the operation of
the system of public employment offices. See 29 U.S.C. 49b(a). This
final rule amends regulations in 20 CFR parts 651, 652, 653, and 658.
With limited exceptions, the final rule requires States to use State
merit staff to provide ES services, including services and activities
under parts 653 and 658. The Department also is targeting revisions to
the regulations at parts 651, 653, and 658. These revisions are
intended to ensure that SWAs provide MSFWs with adequate access to ES
services and that the role of the SMA is effective. In addition, this
final rule amends parts 651, 652, 653, and 658 to further integrate
gender-inclusive language. Finally, the Department is making technical
corrections to these CFR parts to improve consistency across the parts
and to make them easier to understand.
Historically, the Department relied on its authority in secs. 3(a)
and 5(b) of the Wagner-Peyser Act to require that ES services,
including Monitor Advocate System activities for MSFWs and Complaint
System intake, be provided by State merit-staff employees.\2\ The
Department consistently applied this requirement, with limited
exceptions, until 2020. Specifically, beginning in the early 1990s, the
Department authorized demonstration projects in which it allowed
Colorado and Massachusetts limited flexibility to set their own
staffing requirements for the provision of ES services. Colorado was
authorized to use county and State merit staff to deliver ES services.
The State contracts for these services with county and State sub-
recipients, but has not allowed further sub-contracting by the sub-
recipients. Massachusetts was approved to use non-State-merit staff to
provide ES services in just four of the State's 16 local areas. In
these local areas, the State has generally relied on local one-stop
career center/American Job Center (AJC) staff for ES services. In 1998,
the Department permitted Michigan to use State and local merit-staff
employees to deliver ES services, pursuant to a settlement agreement
arising out of Michigan v. Herman, 81 F. Supp. 2d 840 (W.D. Mich.
1998). Michigan was still required to use State merit staff for
services to MSFWs, veterans, and individuals with disabilities. All
three States continued to operate with staffing flexibility through
their approved State plans,\3\ though all three also used State merit
staff for the SMA position. Through rulemaking effective February 5,
2020, the Department removed the requirement that ES services be
provided only by State merit staff. See Wagner-Peyser Act Staffing
Flexibility; Final Rule, 85 FR 592 (Jan. 6, 2020) (2020 Final Rule). In
the preamble to the 2020 Final Rule, the Department explained that it
sought to allow States maximum flexibility in staffing arrangements.
Ibid. Accordingly, under the regulations in effect under the 2020 Final
Rule, several States were approved to use a variety of staffing models
to provide ES services, as described in their approved State plans.
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\2\ Workforce Innovation and Opportunity Act; Department of
Labor; Final Rule, 81 FR 56072 (Aug. 19, 2016) (WIOA DOL-only Rule)
(see 20 CFR 652.215, 653.108, 653.111, 658.602).
\3\ See WIOA DOL-only Rule, 81 FR at 56267 and 56341 (2016).
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In light of the events of the last few years, the Department has
reassessed the approach adopted in the 2020 Final Rule and determined
instead to reinstate the requirement that States use State merit staff
to deliver ES services. State merit-staffing is a generally reliable
method to ensure quality and consistency in ES delivery, and the
demands placed on State UI systems by the economic impact of the COVID-
19 pandemic highlighted the necessity of States to be able to rely on
eligible ES State merit staff to be deployed to assist with UI
activities as needed.
In adopting this State merit-staffing requirement, the Department
relies on its authority under secs. 3(a) and 5(b)(2) of the Wagner-
Peyser Act, as well as authority under sec. 208 of the
Intergovernmental Personnel Act (IPA), 42 U.S.C. 4728, as amended. Each
of these provisions, standing alone, provides the Department with the
authority to require States to use State merit staff to provide ES
services.
Specifically, sec. 3(a) of the Wagner-Peyser Act requires the
Secretary to assist in coordinating the ES offices by ``developing and
prescribing minimum standards of efficiency.'' 29 U.S.C. 49b(a). As the
court in Michigan v. Herman concluded, ``the language in [sec. 3(a)]
authorizing the Secretary to develop and prescribe `minimum standards
of efficiency' is broad enough
[[Page 82661]]
to permit the Secretary of Labor to require merit staffing.'' 81 F.
Supp. 2d at 848.
In addition, sec. 5(b)(2) of the Wagner-Peyser Act provides that
the Secretary shall from time to time certify to the Secretary of the
Treasury for payment to each State that, among other things, ``is found
to have coordinated the public employment services with the provision
of [UI] claimant services.'' 29 U.S.C. 49d(b). As explained previously,
the State merit-staffing requirement would align the staffing of ES
services with the staffing that States are required to use in the
administration of critical UI services. Therefore, it is reasonable for
the Department to base the finding required by sec. 5(b)(2) of the
Wagner-Peyser Act, in part, on a State's agreement to use State merit
staff to administer and provide ES services.
Furthermore, sec. 208 of the IPA authorizes Federal agencies to
require, as a condition of participation in Federal assistance
programs, systems of personnel administration consistent with personnel
standards prescribed by the Office of Personnel Management (OPM).\4\ In
accordance with 5 CFR 900.605, the Department submitted the proposed
rule to OPM for review and received approval prior to the publication
of the NPRM.
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\4\ 42 U.S.C. 4728(b); see also 5 CFR 900.605 (authorizing
Federal agencies to adopt regulations that require the establishment
of a merit personnel system as a condition for receiving Federal
assistance or otherwise participating in an intergovernmental
program with the prior approval of OPM).
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In the IPA, 42 U.S.C. 4701, et seq., Congress found that the
quality of public service could be improved if government personnel
systems are administered consistent with certain merit-based
principles. Requiring States to employ the professionals who deliver ES
services in accordance with these principles would help ensure that ES
services are delivered by qualified, non-partisan personnel who are
directly accountable to the State. Among other things, such
professionals would be required to meet objective professional
qualifications, be trained to assure high-quality performance, and
maintain certain standards of performance. See 42 U.S.C. 4701. They
would also be prohibited from using their official authority for
purposes of political interference, and States would be required to
assure that they are treated fairly and protected against partisan
political coercion. Ibid.
The Department acknowledges that this constitutes a change in its
position taken under the 2020 Final Rule and requires certain States to
adjust how they deliver ES services. The Department notes that Federal
agencies are permitted to change their existing policies if they
acknowledge the change and provide a reasoned explanation for the
change. See, e.g., Encino Motorcars, LLC v. Navarro, 579 U.S. 211, 221-
22 (2016). In the NPRM, the Department acknowledged the proposed policy
change and explained the reason for the change. The ES system is
designed to ``promote the establishment and maintenance of a national
system of public employment service offices,'' 29 U.S.C. 49, and the UI
and ES systems together provide a basic level of employment support for
more than 4 million job seekers per year to enter and re-enter the
workforce. The Department believes that it is vital that the ES be
administered so that services are delivered effectively and equitably
to UI beneficiaries and other ES customers. The COVID-19 pandemic and
the ensuing demand placed on the UI system demonstrated a need for
centrally trained, high-quality staff to be able to step in to assist
States as needed. Further, the ES is a universal access program, and it
is critical that it be administered by nonpartisan personnel held to
transparent, objective standards designed to assure high-quality
performance. A State merit-staffing requirement is a generally reliable
method to ensure quality and consistency in delivery of ES services and
supports the well-established connection between ES and UI services. As
explained further in this preamble, the Department believes an
evaluation of the alternative staffing models, though not legally
required, is prudent to determine whether use of such alternative
staffing models is empirically supported.
The Department is further adjusting its position to account for the
unique history of three States' administration of ES services.
Colorado, Massachusetts, and Michigan have been allowed by the
Department to use various forms of non-State-merit staff models to
deliver ES services since the 1990s. The Department acknowledges the
longstanding reliance interests of these three States. The final rule
allows these States to continue to use those alternative staffing
models, but the States must continue to use merit staff to the same
extent they were using it prior to February 5, 2020, the effective date
of the 2020 Final Rule. Those are the staffing models on which the
three States have decades-long reliance. Adopting a standard that
preserves the level of merit-staffing each of the three States had been
implementing since the 1990s is reasonable and consistent with the
final rule's overall State merit-staffing requirement.
Establishing a different standard for these three States is
supported by the text of section 3(a) of the Wagner-Peyser Act, which
permits the Department to establish ``standards of efficiency.'' The
Department's history of allowing these States to use alternative
staffing models since the 1990s has created the present reality that
requiring complete State merit-staffing in these three States would
have a harmful effect on the States' ES services and program
participants. While the final rule explains above the benefits of
requiring all the other States to use State merit staff to deliver all
ES services, and the proposed rule articulated the strong preference
for uniformity in staffing across all States, those interests are
outweighed by the disruptive and negative effects that a complete State
merit-staffing requirement would have on these States' programs that
have such long reliance on alternative staffing models.
These three States have provided some initial justification and
data for being able to continue using their longstanding alternative
staffing models. These three States also provided information about the
service disruption that would result from having to upend their
longstanding service delivery models. However, the justifications and
data presented do not provide clear evidence of causation. Therefore,
the Department will further examine various staffing models and methods
of delivering labor exchange services through a rigorous evaluation.
Given the Department's clear and supported policy preference for State
merit-staffing in the ES program, it logically follows that the
Department believes it is prudent to evaluate whether alternative
staffing models are empirically supported. The rule requires these
States' participation in any evaluation activities about merit-
staffing, which will likely consist of a single evaluation but may span
more than one study, including any data collection associated with
those evaluation activities. The Department will seek required
approvals under the Paperwork Reduction Act for data collection, as
necessary. This plan for evaluations is consistent with the Secretary's
authority under section 3(c)(2) of the Wagner-Peyser Act, which
requires the Secretary to ``assist in the development of continuous
improvement models for [the nationwide system of labor exchange
services] that ensure private sector satisfaction with the system and
meet the demands of jobseekers relating
[[Page 82662]]
to the system, and identify and disseminate information on best
practices for such system.'' 29 U.S.C. 49b(c)(2). The Department will
conduct this evaluation of the three States' provision of ES services,
including review of services of other States that participate, as
necessary, to determine whether such models are empirically supported.
In the section-by-section discussion, the Department further
explains why it is requiring that States use State merit staff to
provide ES services.
Comments Expressing Support for the Department's Legal Authority for
the State Merit-Staffing Requirement
Comment: Some commenters, including unions, a State employee
association, an advocacy organization, and private citizens, expressed
support for the Department's authority to institute a nationwide merit-
staffing requirement in the Wagner-Peyser Act regulations for ES
services. In particular, a State employee association, an advocacy
organization, and private citizens agreed with the Department that
clear legal authority for reinstituting a nationwide ES merit-staffing
requirement is found under secs. 3(a) and 5(b) of the Wagner-Peyser
Act, which give the Department authority to develop and prescribe
minimum standards of efficiency for ES services and to promote
uniformity in their administrative procedures. A union argued that the
statutory requirement to prescribe minimum standards of efficiency and
promote uniformity requires that States use merit staff to administer
ES programs, citing studies the commenter said show that State merit-
staffed ES offices deliver services more equitably and effectively.
An advocacy organization and a State employee association argued
that the proposed merit-staffing requirement is supported by the
historical record and reinstates the Department's longstanding
requirement that ES services be administered by State merit staff.
Specifically, according to these commenters, the Wagner-Peyser Act
establishes ``a national system of public employment service offices''
and, because a principal component of a public system is State
government employees who are hired and promoted on a merit basis under
a civil service system, the Department argued in Michigan v. Herman
that merit-based staffing is required by the Wagner-Peyser Act because
Congress intended merit-staffing to be a key component of ``public''
employment service.
Similarly, a private citizen argued that the Wagner-Peyser Act's
use of the word ``public'' clearly falls within the word's common
dictionary usage as something ``of or relating to government.'' Given
that the Wagner-Peyser Act defines ``employment service office'' as ``a
local office of a State agency,'' this commenter concluded that the
Wagner-Peyser Act created a network of State governmental ES offices.
Similarly, the commenter argued that the statutory text does not
envision using local agencies to provide ES services. Referencing 1998
and 2014 amendments to the Wagner-Peyser Act, this commenter said that
Congress has never altered the language providing authority for the
Secretary to require merit-staffing for ES services. In conclusion,
this commenter argued that ``claims of flexibility do not give the
Department sufficient legal authority to permit local agencies,
community colleges, local governments, or other entities to [provide]
ES [services] in substitution of state agency merit-staffed
employees,'' although a State is free to provide additional resources
to job seekers beyond ES-staffed services.
A union commented that the Wagner-Peyser Act's creation of
nationwide ES offices was intended to displace and transform the
ineffectual system of employment placement services available to the
jobless that existed prior to the Act's passage. The commenter
described that system as a patchwork, fragmented, and inequitable
system that consisted primarily of private agencies, which the
commenter said were usually exploitative, predatory, and corrupt, as
well as a handful of local public employment offices, which the
commenter asserted were tainted by underfunding, patronage hiring, and
political influence.
Asserting that Congress has reaffirmed the Wagner-Peyser Act's
requirement of merit-staffing over time, an advocacy organization said
that the Intergovernmental Personnel Act of 1970 (IPA) specifically
named the Wagner-Peyser Act as one of two acts administered by the
Department that transferred merit authority to the Civil Service
Commission (succeeded by OMB). Further, according to the commenter, the
Civil Service Reform Act (CSRA) in 1978 amended the IPA to make clear
the intent that merit system guarantees for public employees are to
remain a condition of Wagner-Peyser Act funding to States. In support
of this assertion, one of the commenters cited Pub. L. 95-454 (Oct. 13,
1978), 92 Stat 1111, which the commenter stated added subsection (h) to
42 U.S.C. 4271 to exempt the Wagner-Peyser Act's merit-staffing
requirement, among others, from the CSRA provision otherwise abolishing
all statutory personnel requirements established as a condition of the
receipt of Federal grants-in-aid by State and local governments.
Additionally, a State employee association asserted that the State
merit-staffing requirement is rooted in the Wagner-Peyser Act's
provisions giving the Department the authority to develop and prescribe
minimum standards of efficiency for public employment services and to
promote uniformity in their administrative procedure. Finally, these
commenters remarked that, when the Department attempted to change its
legal interpretation of the Wagner-Peyser Act in 2006, Congress
reaffirmed its position by blocking the proposal by including language
in the Fiscal Year (FY) 2007 and subsequent annual appropriations to
prohibit the Department from taking such action. A State employee
association commented that this 90-year history of the ES State merit-
staffing requirement remaining in place through statutory amendments
and court decisions is highly suggestive of a Congressional intent to
require the delivery of ES services by merit-based employees.
An advocacy organization and a State employee association discussed
additional components of the Wagner-Peyser Act historical record that
they said supported the necessity of delivery of ES services by
qualified, non-partisan personnel who are directly accountable to the
State. For example, the commenters said the first ES director concluded
that, to avert patronage and favoritism in hiring, State ES programs
were legally required to adopt merit personnel systems for appointments
and promotions. These commenters and a union also stated that, as
States adopted companion laws to conform with the Wagner-Peyser Act in
the 1930s, the Department withheld certification of nine States until
they provided assurances that they would merit staff any State-
administered public employment office.
A State employee association quoted the CSRA implementing
regulations as describing the Wagner-Peyser Act merit-staffing
requirement as ``a statutory requirement for the establishment and
maintenance of personnel standards on a merit basis'' in Wagner-Peyser
Act-funded programs (5 CFR part 900, subpart F, Appendix A). Further,
this commenter quoted the final rule implementing the Workforce
Investment Act of 1998 (WIA) in which the Department responded to
inquiries asking if States may seek a waiver of the merit-staffing
requirement for its ES program by stating, ``The requirement that
Wagner-Peyser Act services be
[[Page 82663]]
provided by State merit staff employees derives from sections 3 and
5(b)(1) of the Wagner-Peyser Act. Accordingly, we do not intend to, nor
do we have authority to entertain or grant waivers of the Wagner-Peyser
Act merit-staffing requirement.'' 65 FR 49294, 49306 (Aug. 11, 2000).
Citing the public comment it submitted on the 2019 proposal to
allow ES services to be provided under flexible staffing models, an
advocacy organization said that, for more than 85 years, Congress acted
many times to require merit-staffing in the ES program to guarantee
workers receive unbiased and high-quality employment services.
Response: The Department generally agrees with these commenters
that the Department has authority to require State merit-staffing under
the Wagner-Peyser Act and the IPA. The Department also generally agrees
that Congressional actions over time have affirmed the Department's
authority to require State merit-staffing. The Department weighed this
authority and historic precedent when it proposed uniform State merit-
staffing in the NPRM. As explained above, the Department also weighed
the public comments that described the detrimental effects that the
uniform requirement would have on the three States with longstanding
reliance on using alternative staffing models. Congress' decision not
to disturb these three States' alternative staffing models when it
passed both WIA and WIOA suggests Congressional acquiescence with these
States' arrangements. The Department is therefore returning to the
longstanding requirement of State merit-staffing for ES, with the
limited exception that Colorado, Massachusetts, and Michigan may
continue to use the alternative staffing models they had been using
before the 2020 Final Rule became effective. This includes the
requirement that these three States use merit-staffing to deliver ES
services to the same extent they had been using it.
Comments Expressing Concerns About the Department's Legal Authority
Comment: Some commenters, including an association of workforce
boards, a think tank, and a one-stop center employee, expressed doubts
about the Department's interpretation of its legal authority to require
nationwide merit-staffing for ES services. In particular, an
association of workforce boards and a think tank commented that the
Wagner-Peyser Act does not mandate a one-size-fits-all staffing model.
Specifically, an association of workforce boards asserted that the
Wagner-Peyser Act does not explicitly require that ES staff in States
be merit-based, nor do existing statutes speak specifically to State
merit-staffing requirements for ES offices. This commenter stated that
the Michigan v. Herman court suggested that the Department may
interpret section 3(a) of the Wagner-Peyser Act to permit staffing
flexibility, based on the court's statements that the Wagner-Peyser Act
``does not explicitly require merit-staffing'' and that the language of
section 3(a) is ``broad enough to permit [the Department] to require
merit-staffing.'' Further, the commenter remarked that, since the
Michigan v. Herman ruling, the Department has twice affirmed that
Federal law does not require delivery of ES services by State merit
staff: (1) allowing existing exemptions from ES State merit-staffing
requirements to continue (2016), and (2) the 2020 Final Rule. The
commenter concluded that dictating to States and local communities how
to appropriately staff ES offices is a Departmental interpretation that
will cause significant disruption and harm to the workforce system.
Response: The Department proposed in the NPRM to require that all
States use State merit staff to provide ES services. The Department has
considered the alternative viewpoints provided. As these commenters
noted, the Wagner-Peyser Act does not require the use of State merit
staff for ES services, but the Act does provide the Secretary with
discretion to require State merit-staffing, as explained above. State
merit-staffing for ES services is widely used in many States and its
requirement will not create disruption for the vast majority of States.
Upon consideration of the public comments that described the
detrimental effects that the State merit-staffing requirement would
have on the three States with longstanding reliance on alternative
staffing models, the Department will allow the three States with such
reliance to continue use of the models they had been using prior to
February 5, 2020, the effective date of the 2020 Final Rule. Further,
the Department is committed to evaluating ES programs in these States
to determine whether such models are empirically supported. With
respect to States that may have adopted ES staffing flexibilities as a
result of the 2020 Final Rule, the Department understands there may be
some additional costs associated with the transition from non-merit
staff to State merit staff. In response to comments, the Department is
providing a 24-month compliance period from the effective date of this
final rule to minimize disruption of services in those States.
IV. General Comments on the Proposed Rule
The NPRM, published on April 20, 2022, invited written comments
from the public concerning the proposed rulemaking; the comment period
closed on June 21, 2022. The comments received on the NPRM may be
viewed at https://www.regulations.gov by entering docket number ETA-
2022-0003.
The Department received timely comment submissions from 1,090
commenters, of which 776 were unique. The Department identified 12 form
letter campaigns, which were read and considered with the other
comments received. The Department also received additional comments
that were duplicates or not related to the subject of this rule. The
commenters represented a range of stakeholders from the public and
nonprofit sectors. Public sector commenters included State and local
government agencies, local workforce development boards, and one-stop
operators. Nonprofit sector commenters included public policy
organizations, advocacy groups, national and local labor unions, and a
trade association. Of the unique comments, nearly one-third came from
SWAs. The Department also received several comments from private
citizens.
These comments are addressed in the summary of general comments and
the section-by-section discussion. About half of the unique comments
supported aspects of the proposal but opposed others, while a smaller
number conditioned their support for the proposal on the Department
adopting certain changes in this final rule.
Summary of General Comments on the Proposed Rule
Comment: A State government agency expressed its support for the
rule on the grounds that the State already provides ES services with
State merit staff only and thus the rule would require no change in its
operations.
Several commenters, mostly private citizens, expressed general
support for the proposed merit-staffing requirement without providing
detailed rationale or supporting data. Some arguments provided by
commenters supporting the rule included:
States are better equipped than local areas or contractors
to administer ES services professionally, consistently, and with
greater transparency and accountability.
A State merit-staffing requirement would ensure the (UI)
system remains effective in times of need.
State merit staff have consistently provided job seekers
with career
[[Page 82664]]
enhancement and reemployment services to ensure they have productive
lives.
A union called the proposed rule a policy correction from the 2020
Final Rule and agreed the proposed rule is appropriate, given the
environment in which that rule was developed (historically low demand
for ES services and UI) and the subsequent severe labor market impacts
of the COVID-19 pandemic that sent demand for ES and UI services
surging. Similarly supporting the return to the pre-2020 standard for
ES staffing, a farmworker advocacy organization commented that the
decision to depart from a merit-based staffing model was unsupported by
the Department's own findings on the efficiency of merit-based
staffing. Specifically, this commenter cited a 2004 ETA study that they
said compared merit-based ES staffing models with non-merit models, and
it found that the States with non-merit models listed significantly
fewer jobs and fewer referrals and job placement than merit-based
staffing States.
Response: The Department is adopting the proposed State merit-
staffing requirement as a generally reliable method to ensure quality
and consistency in ES delivery and one that supports the well-
established connection between ES and UI services. The Department notes
that it has allowed three States to use alternative staffing models for
decades, and these States have provided some justification and data for
being able to keep such models. The States also provided information
about the service disruption that would result from having to upend
their longstanding service delivery models. However, the justifications
and data presented do not provide clear evidence of causation; that is,
no compelling data emerged in the public comment period or in previous
research that showed that alternative staffing models are the cause of
higher or more consistent employment outcomes. While the Department
recognizes the decades-long practice on which three States rely, such
partial and correlation-only data are not sufficient to expand these
models to other States, especially not when, as explained in the NPRM,
fluctuations in UI demand from a pandemic or natural disasters clearly
show a need for centrally trained, high-quality staff to be able to
step in to bolster State review of UI claims and appeals if needed.
Therefore, the Department is adopting the State merit-staffing
requirement as proposed with a partial adjustment: the final rule is
requiring all States, except Colorado, Massachusetts, and Michigan, to
use State merit staff to provide ES services. The Department will
further examine various staffing models and methods of delivering labor
exchange services through a rigorous evaluation, as discussed above.
Given the Department's clear and supported policy preference for State
merit-staffing in the ES program, the Department believes it is prudent
to evaluate the delivery of ES services using the experience of States
operating longstanding alternative staffing models to determine whether
such models are empirically supported. The three States with decades-
long reliance on using alternative staffing models may use the same
service-delivery models they used prior to February 5, 2020, and will
be required to participate in this forthcoming evaluation activities.
All other States will have 24 months to comply with the requirement to
use State merit staff to provide all ES services.
Comment: Several commenters, including one-stop center staff and
private citizens, opposed the proposed merit-staffing requirement. Some
arguments provided by commenters against the proposed merit-staffing
requirement included:
Commenters from States operating longstanding alternative
staffing models stated that they view local resource centers and the
services they provide as essential.
Commenters from States operating longstanding alternative
staffing models stated that the change would ruin the one-stop service
model that provides seamless, equitable services that facilitate real-
time, meaningful referrals.
Commenters stated that the Federal government has
consistently demonstrated inadequacy when it comes to administration of
programs that directly affect those at the local level.
Commenters from States operating longstanding alternative
staffing models stated that there is great value in staffing local
offices with local staff rather than State merit employees. Each
individual and business has their own unique challenges to progress,
development, and success, which can only be understood and addressed at
the local level.
Commenters from States operating longstanding alternative
staffing models stated that the proposed change would redirect
responsibilities and funds to the State, which would be a mistake. The
commenters said that the current system at the local level is working
well without any issues.
Commenters from States operating longstanding alternative
staffing models stated that the proposed change would harm job seekers
and businesses, resulting in lower quality and fewer services being
provided, including services to veterans, immigrant and refugee
navigator services, Clean Slate services for formerly incarcerated
people, support navigating the UI benefits process, job training,
career events, job fairs, and industry led collaboratives.
Commenters from States operating longstanding alternative
staffing models stated that the proposed rule would have a negative
impact on local communities, including causing job centers to close and
the loss of many jobs. The loss of centers would also impact students
who rely on local offices to assist with educational support and other
assistance.
Many private citizens from States operating longstanding
alternative staffing models provided personal experiences asserting the
value and need for services at one-stop centers, which they stated
would be impacted if a State merit-staffing requirement changed the
availability of services or the number of one-stop centers. Other
commenters, including one-stop center staff, described their experience
as local merit staff or working with the workforce development system
and the positive impact on the community.
Response: The Department proposed to require that all States use
State merit staff to provide ES services and has considered reasons
provided by these commenters for opposing the proposed rule. The
proposal to require State merit staff does not preclude the State from
providing services locally, and the vast majority of States provide
high quality services in one-stop centers with a mix of State merit
staff delivering ES locally and other staff providing other services
locally. Without evidence that alternative staffing models directly
cause higher employment outcomes, balanced against widespread success
in delivering services while maintaining State merit staff for ES, and
further balanced by the need for ES State merit staff to be available
for surges in UI claims and appeals, the Department is generally
adopting the proposed requirement that States use State merit staff to
provide ES services.
However, the Department recognizes that three States (Colorado,
Massachusetts, and Michigan) have been allowed to administer ES
services using alternative staffing models for decades. The Department
understands that these States' long experience with their particular
models results in an affinity and preference for their model. During
the comment period, these States
[[Page 82665]]
provided information that the State merit-staffing requirement proposed
to be applied to all States would have extremely detrimental impacts on
the provision of ES services in these three States because of the facts
and circumstances, particularly the decades-long reliance interests, in
these States. Based on this information, the Department is adjusting
the final rule from the original proposal. The final rule requires all
States, except the three States with decades-long reliance on using
alternative staffing models, to use State merit staff to provide ES
services. The expansion of alternative staffing models to additional
States occurred without study, before the landscape-altering impact of
the pandemic on the UI and workforce system. The Department will
require the three States to participate in a rigorous evaluation of the
services provided in the three alternative States to determine if using
alternative models benefit ES service delivery. All other States will
have 24 months to comply with the requirement to use State merit staff
to provide ES services.
Comment: Several commenters, including private citizens, presented
a mixed stance or unclear position on the proposed rule. Many
commenters, including private citizens, employers, and one-stop center
staff, discussed Michigan's public workforce system, known as Michigan
Works!, without addressing the proposed rule. Other commenters,
including a trade association, career service provider, and employer,
generally discussed the importance of programs or ``communities.'' A
one-stop center employee commented that ES services offer job seekers
help navigating the UI process.
Response: The Department agrees that one-stop centers are valuable
assets in a community, often provide services to a wide range of
individuals, and are instrumental in shaping a local workforce's skills
as part of larger economic development. The Department also notes that
one-stop centers play this role across the country, including in the
vast majority of States that maintain State merit staff in delivering
ES services. Changes in how a one-stop center operates can impact a
local community, and thus the Department weighs such impacts very
carefully in its regulations. The Department recognizes the significant
challenges that a return to State merit-staffing would present for
States with decades-long reliance on using alternative models.
Therefore, after serious consideration of comments received from the
public, the Department is requiring all States to use State merit staff
to deliver ES services, except the three States that have been allowed
to use alternative staffing models for decades. Due to their
longstanding reliance, these States are permitted to use merit-staffing
flexibility to the same extent the Department allowed them to use it
before the 2020 Final Rule became effective, but the Department is not
permitting them to expand their staffing flexibility any further.
Comment: An anonymous commenter asked whether State merit staff
will be required to colocate in one-stop centers.
Response: WIOA requires ES offices to be colocated in AJCs, also
known as one-stop centers, regardless of the staffing model used. This
is unchanged under this final rule.
Comment: An anonymous commenter asked whether Federal
appropriations will provide adequate resources to support the
recruitment, hiring, and training of ES State merit staff or if the
costs will be assumed by the States.
Response: Recruiting, hiring, and training ES staff is an allowable
cost for ES grants to States. In considering this comment, the
Department determined that a greater amount of Federal funding is
available now compared to other years. The FY 2022 and FY 2023
appropriations each provided an increase for Wagner-Peyser Employment
Service grants to States over the years prior. In FY 2023, Congress
appropriated $5 million more than in FY 2022 for the ES formula grants
to States, which are the grants allotted to States to operate the ES.
With the increased funding, the Department expects the ES to serve
approximately 20,000 more individuals nationwide in 2023 (2,913,438).
The estimates are not dependent on the type of staffing model a State
uses to deliver ES services. The States' latest financial reports show
that many States, including those States that must make changes to come
into compliance with the final rule's State merit-staffing requirement,
still have previous years' ES grant funds not yet expended. One of
these States has expended under half of its Program Year (PY) 2022
allotment, and all of these States had lower expenditure rates in PY
2022 than in previous years. The Department notes that many States have
used general funds made available under the American Rescue Plan Act
and other resources to bolster overall workforce development services.
Therefore, compared to other years, this is an appropriate time for a
transition back to the use of State merit staff because of the above
average resources available.
Comment: An anonymous commenter asked what impact implementation of
the proposed rule will have on the monitor advocate requirements.
Response: Because the Monitor Advocate System is a part of the
Wagner-Peyser ES, the requirement for States to use State merit staff
for ES services also applies to Monitor Advocate services described at
parts 653 and 658. Aside from Colorado, Massachusetts, and Michigan,
the Department is requiring States to use State merit staff to conduct
outreach to MSFWs, as described at Sec. 653.107. Colorado,
Massachusetts, and Michigan must use merit-staffing for MSFW outreach
to the same extent authorized in their approved longstanding
alternative staffing model. This means that if the State was required
to use State merit staff for MSFW outreach (as in the case of Michigan)
prior to February 5, 2020, then the State must continue to use State
merit staff for MSFW outreach. If the State was permitted to use a
combination of local merit staff and State merit staff for MSFW
outreach prior to February 5, 2020, then the State must continue using
merit staff for MSFW outreach. The Department is also requiring all
States to use State merit staff to fulfill their SMA responsibilities,
as described at Sec. 653.108. Colorado, Massachusetts, and Michigan
all use State merit staff for the SMA position as part of their
longstanding staffing model and are required to continue doing so. All
States will have 24 months to comply with this final rule.
Comment: The Department received several comments that were beyond
the scope of the proposed rule and included issues with the processing
of UI claims, the politics of social justice campaigns, the status of
pandemic unemployment assistance, and the actions of President Biden's
administration generally.
Response: These are issues that cannot be resolved or implemented
through this regulatory process or are not within the Department's
purview.
V. Section-by-Section Discussion of Final Rule
The discussion below details the decisions the Department made in
adopting the final rule text. It responds to section-specific comments
and explains any changes made in response to those comments. If the
Department did not receive comments regarding a particular section,
that section is not discussed in detail below, and the final rule
adopts that section as proposed for the reasons set forth in the NPRM.
The Department also has made nonsubstantive changes to the
[[Page 82666]]
regulatory text to correct grammatical and typographical errors, in
order to improve the readability and conform the document
stylistically, that are not discussed in detail below.
A. Technical Amendments and Global Edits
In the NPRM, the Department proposed several technical amendments
and global changes, as discussed in detail below. The Department did
not receive substantive comments on these proposed changes, and it
adopts them as proposed in the final rule.
To conform with the proposed changes to the definition of Wagner-
Peyser Act Employment Service (ES) also known as Employment Service
(ES) in Sec. 651.10, the Department is making technical changes to
replace the phrases ``employment services,'' ``Wagner-Peyser Act
services,'' and ``services provided under the Wagner-Peyser Act'' with
``ES services.'' Changes also have been made to replace the phrase
``employment office'' with ``ES office,'' and ``Wagner-Peyser Act
participants'' with ``ES participants.'' These changes will simplify
and standardize the use of terminology. The language is also intended
to improve usage of plain language within the regulations. Technical
changes to articles, specifically changing ``a'' to ``an'' where
necessary, have been made as well when preceding ``ES office.'' These
changes have been made in Sec. 651.10 within the definitions of
applicant holding office, Employment Service (ES) office, field visits,
outreach staff, placement, and reportable individual, in addition to
the changes in the definition of Wagner-Peyser Act Employment Service
(ES) also known as Employment Service (ES). Conforming changes have
also been made to the subpart heading at part 652, subpart C, and
within the regulatory text at Sec. Sec. 652.205, 652.207, 652.215,
653.107, 653.108, 658.411, 658.502, 658.602, and 658.603.
The Department is adopting several technical edits to refine
gender-inclusive language within the regulatory text while maintaining
plain language principles. Throughout parts 651, 653, and 658, the term
``he/she'' was used to denote an individual of unknown gender. Using
terms with a slash may not be in keeping with plain language principles
and may also exclude people who are nonbinary. The Department has made
three technical edits to replace ``he/she'' with more inclusive
language employing plain language principles.
First, where ``he/she'' refers to an individual in their
professional capacity, the Department uses their job title instead of a
pronoun. These edits largely affect regulations impacting the National
Monitor Advocate (NMA) or the Regional Monitor Advocate (RMA). In these
cases, ``he/she'' has been replaced with ``the NMA'' or ``the RMA'' as
appropriate and ``his/her'' with the possessive pronoun ``their.''
These edits are made as proposed at Sec. Sec. 658.602 and 658.603.
Second, where ``he/she'' refers to an employer that is not an
individual person, the Department uses the pronoun ``it.'' Where the
possessive pronouns ``his/her'' were used, the Department proposed
using ``its.'' This is appropriate because employers are entities, not
individuals, and the proper pronoun is ``it.'' This edit is made as
proposed at Sec. Sec. 658.502 and 658.504.
In all other cases where ``he/she'' was used, the Department uses
the pronoun ``they'' in its capacity as a gender-inclusive third-person
singular pronoun but conjugated with third-person plural verbs. Where
the possessive pronouns ``his/her'' were used, the Department proposed
using ``their.'' These changes are designed to remove binary gender
language so that the regulatory text is gender inclusive. The
Department makes these changes as proposed in Sec. 651.10 in the
definition of seasonal farmworker. Edits are also made as proposed to
Sec. Sec. 653.107, 653.108, 653.111, 653.501, 653.502, 658.400,
658.410, 658.411, 658.421, 658.422, 658.602, 658.603, 658.702, 658.705,
658.706, and 658.707.
In addition, the Department replaces the words ``handle'' and
``handled'' with ``process'' and ``processed,'' as appropriate, to
clarify that actions by ES staff and Federal staff must follow the
processing requirements listed throughout part 658, subparts E and H,
which use the word ``process.'' The word ``handle'' does not have a
specific meaning in the regulatory text and may be unclear to SWAs.
In some instances, the Department also made conforming technical
amendments to correct grammar in the regulations, as needed, because of
these changes. In addition to such conforming technical amendments, the
Department added and removed commas throughout the regulatory text to
improve clarity and readability. These global changes and technical
amendments described in this section are not explicitly identified
later in the section-by-section discussion.
Finally, the Department is correcting the citation for its
rulemaking authority for parts 651 and 652.
B. Part 651--General Provisions Governing the Wagner-Peyser Act
Employment Service
Part 651 (Sec. 651.10) sets forth definitions for parts 652, 653,
654, and 658. In the NPRM, the Department proposed to define several
new terms in this section and to make revisions to a number of other
terms that were already defined in this section. The Department
received comments on some of the proposed additions and revisions.
After carefully considering these comments, the Department has decided
to adopt most of the additions and revisions as proposed, with
exceptions, as discussed in detail below.
Apparent Violation
The Department proposed to add a definition for apparent violation
to clarify that the term means a suspected violation of employment-
related laws or ES regulations, as set forth in Sec. 658.419.
Comment: A State government agency appreciated the Department's
efforts to define apparent violation but felt that additional
clarification was required to aid implementation. This commenter
suggested that the Department clarify the proposed definition of
apparent violation by adding the following language at the end: ``for
which ES staff observes, has reason to believe, or is in receipt of
information that a violation has occurred.''
Response: The Department agrees that the proposed definition for
this term should be clarified by specifying that ES staff process
apparent violations. In reviewing the commenter's suggestion, the
Department further identified that it would be beneficial to include in
the definition that apparent violations relate to information received
about suspected employer noncompliance, as Sec. 658.419 has
historically described. Additionally, upon further review of the NPRM,
the Department is further clarifying the definition of apparent
violation to state explicitly that the definition does not include
complaints as defined in Sec. 651.10. This change is meant to make the
distinction between complaints and apparent violations clearer. The
Department is also removing the parenthetical ``as set forth in Sec.
658.419 of this chapter'' because it is unnecessary with the changes
the Department is making in Sec. 658.419 to be more clearly consistent
with this definition. Accordingly, the Department has decided to amend
the definition of apparent violation adopted in this final rule to mean
``a suspected violation of employment-related laws or employment
service (ES) regulations by an employer, which an ES staff member
[[Page 82667]]
observes, has reason to believe, or regarding which an ES staff member
receives information (other than a complaint as defined in this
part).''
Applicant Holding Office
The Department proposed to amend the definition of applicant
holding office to replace ``a Wagner-Peyser Employment Service Office''
with ``an ES office,'' and did not receive any comments on this
proposed change. This change is consistent with the changes proposed to
the definition of Wagner-Peyser Employment Service (ES) also known as
Employment Service (ES). The Department adopts the revision to
``applicant holding office'' as proposed.
Bona Fide Occupational Qualification (BFOQ)
As noted in the preceding section on technical amendments and
global edits, the Department added commas throughout the regulatory
text to improve clarity and readability, including in the first
sentence of the definition of bona fide occupational qualification
(BFOQ). The Department did not receive any comments on this proposed
change. In this final rule, the Department adds a necessary cross-
reference to the EEOC's regulation regarding national origin found at
29 CFR part 1606 and corrects the cross-reference to the EEOC's BFOQ
regulation found at 29 CFR part 1627.
Career Services
The Department proposed to amend the definition of career services
to refer to WIOA by its acronym rather than its full title because the
full title is previously spelled out at the beginning of this section.
The Department did not receive any comments on this proposed change and
adopts it as proposed.
Clearance Order
The Department proposed to amend the definition of clearance order
to add a citation to the Agricultural Recruitment System (ARS)
regulations at part 653, subpart F. The purpose of this addition is to
clearly identify the ARS regulations to which the term refers. The
Department did not receive any comments on this proposed change and
adopts it as proposed.
Complaint System Representative
The Department proposed to amend the definition of Complaint System
Representative to specify that the Complaint System Representative must
be trained. The addition of the word ``trained'' makes the definition
consistent with the requirement in Sec. 658.410(g) and (h) that
complaints are processed by a trained Complaint System Representative.
The Department also proposed to remove the words ``individual at the
local or State level'' due to proposed changes to the definition of ES
staff. The Department did not receive any comments on the changes
proposed to the definition of complaint system representative. While
the Department is not adopting the changes that it proposed to the
definition of ES staff, the reference to an ``individual at the local
and State level'' in the definition of complaint system representative
is not necessary regardless of whether the Department revises the
definition of ES staff. Accordingly, the Department adopts the proposed
revisions to the definition of complaint system representative,
including the removal of these words, without change.
Decertification
The Department proposed to amend the definition of Decertification
to specify that the Secretary to which this definition refers is the
Secretary of Labor. The Department did not receive any comments on this
proposed change and adopts it as proposed.
Employment and Training Administration
The Department proposed to amend the definition of Employment and
Training Administration (ETA) to remove the words ``of Labor'' after
``Department'' because Department is previously defined in this section
as ``the United States Department of Labor.'' The Department did not
receive any comments on this proposed change and adopts it as proposed.
Employment Service (ES) Office and Employment Service (ES) Office
Manager
The Department proposed to amend the definition of Employment
Service (ES) office to replace ``Wagner-Peyser Act'' with ``ES,'' to
align with other proposed changes to the regulatory text. The
Department further proposed to amend the definition of Employment
Service (ES) Office Manager to replace the phrase ``all ES activities
in a one-stop center'' with the phrase ``ES services provided in a one-
stop center,'' to align with other proposed changes to the regulatory
text. In the same definition, the Department also proposed to replace
``individual'' with ``ES staff person'' to clarify that the ES Office
Manager must be ES staff, as defined in this section.
Comment: Several commenters, including a one-stop center employee,
supported the requirement in the definition of Employment Service (ES)
office that it be colocated in a one-stop center, saying this is part
of Michigan's current practice. However, the commenters expressed
concern about the term Employment Service (ES) Office Manager, arguing
that it is misleading and implies greater authority than may be
appropriate for onsite one-stop center ES staff.
Response: The Department acknowledges the comment but notes that
there is no requirement for the ES Office Manager to be located onsite.
ES Office Managers are responsible for all ES services provided in a
one-stop center. It is possible for one ES Office Manager to manage
more than one ES Office; however, each ES Office must have an assigned
ES Office Manager. The Department adopts the change as proposed.
Employment Service (ES) Staff
The Department proposed to amend the definition of Employment
Service (ES) staff in two ways: first, by replacing the phrase
``individuals, including but not limited to State employees and staff
of a subrecipient,'' with ``State government personnel who are employed
according to the merit system principles described in 5 CFR part 900,
subpart F--Standards for a Merit System of Personnel Administration,
and'' to conform with the imposition of the merit-staffing requirement
proposed in Sec. 652.215; and, second, by deleting the phrase ``to
carry out activities authorized under the Wagner-Peyser Act,'' because
this language is unnecessary as parts 652, 653, and 658 describe the
activities and services that ES staff may or must carry out. The
proposal also added that ES staff includes a SWA official.
Comment: Multiple commenters, including a trade association, a one-
stop center employee, and an advocacy organization, recommended the
Department expand the definition of Employment Service (ES) staff to
include local merit staff in addition to State merit staff. The trade
association reasoned that a more expansive definition is needed in
light of the nationwide employment crisis and to enable the hiring of
qualified local personnel. A group of Colorado local government
employees also in favor of expanding the definition described the
braided services they provided to a job seeker who needed extra
support, arguing that the individual likely would not have received the
same opportunities from State merit staff. Some commenters and a one-
stop center employee asked the Department to explicitly state in the
final rule that ES
[[Page 82668]]
staff should be a part of the local AJC, arguing that standalone ES
offices undermine the WIOA one-stop concept and hinder access to
comprehensive services for job seekers and employers.
A State government agency requested guidance on which
classifications of ES staff would need to be cross-trained, noting that
the NPRM only defines ES staff as those who are funded, in whole or in
part, by Wagner-Peyser Act funds. The commenter stated that in their
State, some workers may meet this definition of ES staff but only
perform administrative functions.
Response: The Department has considered the comments recommending
expanding the definition of ES staff to include local merit staff and
requesting clarification regarding which staff are included in the
definition. Because the Department is adopting the proposed State
merit-staffing requirement with the limited exception that Colorado,
Massachusetts, and Michigan may continue to use alternative staffing
models, the Department is removing the reference to merit system
principles from the definition of ES staff. The final rule defines ES
staff to mean ``Individuals who are funded, in whole or in part, by
Wagner-Peyser Act funds to carry out activities authorized under the
Wagner-Peyser Act.'' The Department is not adopting the proposal that
would have added that ES staff includes a SWA official because SWA
officials may include individuals funded by programs other than Wagner-
Peyser. In response to the comment stating the final rule should
require that ES staff be a part of the local AJC because stand-alone ES
offices undermine the WIOA one-stop concept, the Department notes that
the existing regulations at 20 CFR 652.202 and 678.315 state that
stand-alone ES offices are not permitted, and States must colocate ES
offices with one-stop centers. In response to the comment inquiring
about cross-training, the Department notes that, while there are
benefits to cross-training, the NPRM did not propose requiring States
to cross-train employees nor does this final rule require cross-
training.
Field Checks
The Department proposed several amendments to the definition of
field checks. First, the Department proposed to replace the term ``job
order'' with ``clearance order,'' which is more accurate because field
checks must be conducted on clearance orders as defined in Sec.
651.10. Second, the Department proposed to clarify that field checks
may be conducted by non-ES State staff, in addition to ES or Federal
staff, where the SWA has entered into an arrangement with a State or
Federal enforcement agency (or agencies) for their enforcement agency
staff to conduct field checks. Third, the Department proposed to remove
the word ``random'' from the existing definition to clarify that the
selection of the clearance orders on which the SWA will conduct field
checks need not be random, though random field checks may still occur,
and to clarify that field checks may be targeted, where necessary, to
respond to known or suspected compliance issues.
Comment: A State government agency supported the revised definition
of field checks but requested that the Department clarify in the rule
or guidance either the circumstances that warrant targeted field checks
or the responsibility of States to define the circumstances in policy.
Another State government agency stated that the proposal to amend the
definition of field checks to allow non-ES State staff to conduct field
checks would necessitate coordination, training, and reporting to
ensure that non-ES staff perform field checks properly and timely. The
agency recommended that the Department remove the language allowing
non-ES staff to perform field checks. A farmworker advocacy
organization also supported the proposal to remove the word ``random''
from the definition of field checks, which it said would help improve
protections for farmworkers. The organization stated that it believed
the Department should go further to expand the definition of field
checks to include locations beyond where ES placements have been made,
stating that the ES placement limitation significantly reduces the
number of worksites eligible for these essential compliance checks and
incentivizes employers to hire H-2A workers--whose employment does not
currently create the possibility of a field check--instead of hiring
U.S. workers through the ES.
Response: Regarding the request for clarification on the
circumstances that warrant targeted field checks, the Department
clarifies that the circumstances must relate to the terms and
conditions on the clearance order. Thus, where it is known or suspected
that wages, hours, and working and housing conditions are not being
provided as specified in the clearance order, a targeted field check
may be warranted. The Department will issue guidance on this change.
Regarding the recommendation that the Department remove the
language allowing non-ES staff to perform field checks, the Department
notes that this proposed revision to the definition of field checks is
not a new requirement. Rather, it is intended to align the definition
with the existing regulation at Sec. 653.503(e), which allows SWA
officials to enter into formal or informal arrangements with
appropriate State and Federal enforcement agencies where the
enforcement agency staff may conduct field checks instead of and on
behalf of the SWA, as described in Sec. 653.503(e). The Department,
therefore, declines to adopt this recommendation, and maintains that
non-ES staff may conduct field checks under certain circumstances.
Regarding the recommendation that the Department expand field
checks to locations beyond where ES placements have been made, the
Department acknowledges the concerns raised by the farmworker advocacy
organization regarding the limited instances in which a SWA may conduct
field checks to evaluate employer compliance but disagrees that
existing field check requirements incentivize employers to hire H-2A
workers over U.S. workers. The Department agrees that compliance
monitoring is essential, but notes that field checks are not the sole
means by which such monitoring occurs, and employers are prohibited
from rejecting able, willing, and qualified U.S. workers (referred to
them through the ES or otherwise) in favor of H-2A workers. The
Department further notes that field checks only pertain to placement of
U.S. workers via the ARS. The Department's Wage and Hour Division (WHD)
conducts investigations and evaluates agricultural employers'
compliance with the terms and conditions of the H-2A program (including
H-2A employers' compliance with the terms and conditions that they
offer in clearance orders) (see 29 CFR part 501). To the extent the
advocacy organization is recommending field checks for H-2A employment,
the operative regulations are outside the scope of this rulemaking and
the Department declines to adopt this recommendation. The Department
adopts the changes to this definition as proposed in the NPRM.
Field Visits
The Department proposed several amendments to the definition of
field visits. First, the Department proposed to clarify that field
visits are announced appearances by SMAs, RMAs, the NMA, or NMA team
members, in addition to outreach staff, to clarify which Monitor
Advocates may conduct field visits and that the appearances are
announced (and not unannounced, as with the proposed definition of
field checks). Second, the Department proposed to
[[Page 82669]]
replace the reference to ``employment services'' with ``ES services''
to conform with the use of the ``ES'' abbreviation throughout the
regulatory text. Third, the Department proposed an amendment to specify
that field visits include discussions on farmworker rights and
protections, to help ensure that these issues are consistently
addressed.
Comment: A farmworker advocacy organization supported the proposal
to amend the definition of field visits to include discussions on
farmworker rights and protections. The organization agreed with the
Department's observation that outreach staff and SMAs do not always
discuss farmworker rights and protections during field visits as part
of broader discussions on ES services. A State government agency
requested that the Department clarify the role of monitor advocates
with respect to field visits. The agency stated that the Department's
intent to refocus monitor advocate responsibilities on monitoring
appears to be contradicted by its expectation that monitor advocates
conduct more field visits, which is not a monitoring activity. The
commenter asked the Department to clarify that the monitor advocate's
role in field visits is to monitor that ES staff conduct field visits
in accordance with part 653.
Response: The Department appreciates the advocacy organization's
support for the inclusion of discussions of farmworker rights and
protections in the definition of field visits. Regarding the State
agency's request for clarification on monitor advocate roles in field
visits, the Department notes that the proposed revisions do not require
additional field visits, but instead clarify that the monitor advocates
who may conduct field visits include SMAs, RMAs, and the NMA and NMA
staff. The existing regulations provide that SMAs conduct field visits
in accordance with Sec. 653.108(o) and (q), the NMA (and NMA staff) in
accordance with Sec. 658.602(n), and RMAs in accordance with Sec.
658.603(p). As part of their monitoring duties, the NMA (and NMA staff)
and RMAs accompany selected outreach workers on field visits as part of
their review and assessment responsibilities in Sec. Sec. 658.602 and
658.603. For SMAs, the Department proposed in Sec. 653.108 to clarify
that the purpose of a SMA field visit is to discuss the SWA's provision
of ES services and obtain input on the adequacy of those services from
MSFWs, crew leaders, and employers. The SMA is not responsible to
provide direct employment services during field visits or other
activities. Instead, the SMA's field visits are designed to gather
information the SMA needs to evaluate how the SWA is currently serving
MSFWs, which the SMA uses to assess SWA compliance and to advocate for
improvements.
After carefully reviewing the comments, the Department has decided
to update the definition of field visits to cross reference the
citations that describe activities Monitor Advocates and outreach staff
perform during field visits. To further clarify the role of monitor
advocates with respect to field visits, the Department has decided to
remove the proposed reference to NMA team members and instead refer to
NMA staff, as identified in Sec. 658.602(h).
During consideration of the comments, the Department noticed that
the proposed definition did not specify that field visits may occur at
the gathering places of MSFWs, which is necessary to align the
definition with the requirement in Sec. 653.107(b)(1) that outreach
staff must explain certain information and services to MSFWs at their
working, living, or gathering areas. To align the definition with Sec.
653.107(b)(1), the Department is further revising the definition of
field visits to include that field visits may occur at places where
MSFWs gather, in addition to working and living locations.
Hearing Officer
The Department proposed to amend the definition of Hearing Officer
to remove the words ``of Labor'' because Sec. 651.10 previously
defines ``Department'' as ``the United States Department of Labor.''
The Department did not receive any comments on this proposed change and
adopts it as proposed.
Interstate Clearance Order
The Department proposed to amend the definition of interstate
clearance order to indicate that it is an agricultural ``clearance''
order for temporary employment instead of a ``job'' order. This change
aligns the definitions of job order and clearance order. The Department
did not receive any comments on this proposed change and adopts it as
proposed.
Intrastate Clearance Order
The Department proposed to amend the definition of intrastate
clearance order in two ways: first, by indicating that it is an
agricultural ``clearance'' order for temporary employment instead of a
``job'' order, to align the definition with the definitions of job
order and clearance order in this part; and, second, by clarifying that
the term means an agricultural clearance order for temporary employment
describing one or more hard-to-fill job openings that an ES office uses
to request recruitment assistance from all other ES offices within the
State, to help SWAs understand that an intrastate clearance order must
be circulated to all ES offices within the State.
Comment: A State government agency said that amending the
definition of interstate clearance order to require an ES office to
request recruitment assistance from all ES offices (not just
significant MSFW one-stop centers) will necessitate changes to the
review tool its monitor advocate office uses to conduct annual reviews
(i.e., to reflect that all offices must conduct recruitment). Another
State government agency asked the Department to clarify what
recruitment assistance means in the definition of intrastate clearance
order.
Response: The Department acknowledges that the changes may require
some SWAs to update their review tools and notes that intrastate
recruitment, not interstate recruitment, involves recruitment
assistance from all other ES offices within the State. However, the
Department believes that the majority of SWAs will not need to update
review tools or other processes because the revised definition is
consistent with their current practices. The Department has found
through monitoring that the majority of SWAs place intrastate clearance
orders into their web-based labor exchange systems and make them
available for recruitment throughout the entire State. Most SWAs do not
direct recruitment efforts to specific ES offices because their labor
exchange systems are not programmed to do so. Therefore, this change
will not increase burden for most SWAs.
The Department has considered the impact of updating the definition
to specify that intrastate clearance orders request recruitment
assistance from all other ES offices in the State and finds it to be
beneficial. Specifically, requesting recruitment assistance from all
other ES offices increases the likelihood that the employer will find
the workers it needs. Because the definition applies to criteria and
non-criteria clearance orders, the description also allows the employer
and SWA to recruit as broadly as possible and assists ETA in assessing
the need for interstate clearance requests, including requests
connected to the H-2A visa program. The intended result is that
intrastate clearance will be more likely to result in employment of
U.S. workers.
The Department adopts the definition as proposed and will provide
guidance and technical assistance, as needed,
[[Page 82670]]
including how other ES offices provide recruitment assistance.
Migrant Farmworker and Seasonal Farmworker
The Department proposed to amend the definition of migrant
farmworker by removing the exclusion of full-time students who are
traveling in organized groups, to make available to these individuals
the benefits and protections of the Monitor Advocate System, including
ES service requirements and safeguards built into the Complaint System.
Relatedly, the Department proposed to remove the exclusion of non-
migrant full-time students from the definition of seasonal farmworker,
to allow full-time students who work in seasonal farmwork to be
considered seasonal farmworkers and to make the definition of seasonal
farmworker consistent with the definition of migrant farmworker. The
Department adopts these definitions as proposed.
Comment: Referencing the Department's proposal to remove the
exclusion of non-migrant full-time students from the definition of
seasonal farmworker, thus making the definition of seasonal farmworker
consistent with the definition of migrant farmworker, an anonymous
commenter remarked that seasonal farmworkers (such as non-migrant full-
time students) are not the same as migrant farmworkers (who they said
are usually noncitizens admitted to the United States for specific
timeframes with green card status). The commenter also mentioned an ES
office in Traverse City, Michigan, with a specific division for
assisting migrant farmworkers and stated that hiring extra migrant
farmworkers may not suffice for fresh produce processing of their
State's agriculturally diverse crops.
Response: The proposed changes maintain two separate definitions
for seasonal farmworkers and migrant farmworkers and remove the
exclusion of full-time students from both definitions to ensure MSFW
students have access to the benefits and protections of the Monitor
Advocate System.
Removal of Migrant Food Processing Worker
The Department proposed to remove the definition of migrant food
processing worker because migrant food processing worker status has not
been a separately tracked part of the MSFW definition since the ES
regulations were updated in the WIOA final rule promulgated in 2016.
See 81 FR 56071 (Oct. 18, 2016). Current ETA reporting does not require
States to document migrant food processing workers as a particular type
of MSFW and this definition is unnecessary because the existing MSFW
definitions are inclusive of individuals who perform work as migrant
food processors. The Department did not receive any comments on its
proposal to remove this defined term and adopts its removal as
proposed.
Occupational Information Network (O*NET)
The Department proposed to amend the definition of Occupational
Information Network (O*NET) to remove the word ``system'' from the
definition, as it is not needed to describe O*NET. The Department did
not receive any comments on this proposed change. The Department adopts
the change as proposed.
O*NET-SOC
The Department proposed to amend the definition of O*NET-SOC to
remove the words ``of Labor'' after ``Department'' because Department
is previously defined in this section as ``the United States Department
of Labor.'' The Department did not receive any comments. The Department
adopts the change as proposed.
Outreach Staff
The Department proposed to amend the definition of outreach staff
to clarify that an SMA is not ``outreach staff'' for purposes of Sec.
653.107. While an SMA may join outreach staff on field visits, an SMA
cannot fulfill a SWA's responsibility under Sec. 653.107(a) to provide
outreach staff. This aligns with a revision in Sec. 653.108(d) to
specify that the SMA and their staff cannot assist with outreach
responsibilities, which is further discussed in the section-by-section
analysis for Sec. 653.108. The Department did not receive any comments
on the clarification proposed to the definition, and it adopts the
revision to this definition as proposed.
Participant and Reportable Individual
To align with the proposed changes to replace references to
``employment services,'' ``Wagner-Peyser Act services,'' and ``services
provided under the Wagner-Peyser Act'' with ``ES services'' and ``ES,''
the Department proposed to amend the definition of participant by
replacing the phrase ``Wagner-Peyser Act participants'' with ``ES
participants'' and to amend the definition of reportable individual by
replacing the phrase ``Wagner-Peyser Act services'' with ``ES
services.'' The Department did not propose any other changes to these
definitions. The Department received one comment related to the
definitions for each of these terms, which is summarized and responded
to below. After consideration of this comment, the Department adopts
the revisions to both of these definitions as proposed.
Comment: A State government agency suggested the Department should
define reportable individual versus participant for States to
accurately collect and report information on these groups.
Response: The Department appreciates the comment requesting that
the Department clarify who is considered reportable individuals or
participants. The Department's existing regulations in part 651 provide
definitions for reportable individual and participant at Sec. 651.10.
This final rule adopts only minor revisions to each term to replace
existing references to the ``Wagner-Peyser Act'' with ``ES.'' As noted
in Sec. 651.10, participant means a reportable individual who has
received services other than the services described in Sec.
677.150(a)(3) of this chapter, after satisfying all applicable
programmatic requirements for the provision of services, such as
eligibility determination (see 20 CFR 677.150(a)). This definition
notes that individuals who use only self-services or information-only
services or activities are not considered participants. As outlined in
Sec. 677.150(a)(4) of this chapter, programs must include participants
in their performance calculations.
Placement
The Department proposed to amend the definition of placement (along
with other terms) to replace the phrase ``employment office'' with ``ES
office.'' The Department did not propose any other changes to this
definition. The Department did not receive any comments on this
proposed definition and adopts it as proposed.
Respondent
The Department proposed to revise the definition of respondent by
removing the parenthetical language ``including a State agency
official'' because the term ``State agency'' is assumed to include
``State agency officials'' and is therefore unnecessary to clarify. The
Department did not receive any comments on this proposed change and
adopts it as proposed.
Significant MSFW One-Stop Centers and Significant MSFW States
The Department proposed to revise the definition of significant
MSFW one-stop centers in two ways: first, by removing the text stating
these designations are made annually; and,
[[Page 82671]]
second, by adding to the criteria by which the Department designates
significant MSFW one-stop centers, so that they will include ES offices
where MSFWs account for 10 percent or more of reportable individuals in
the ES annually. First, as explained in the NPRM, the Department
proposed to remove the text stating that significant MSFW one-stop
centers are designated annually, because in making the designation, the
Department relies on multiple data sources that are published in
intervals up to every 5 years. Based on the Department's analysis, the
data do not change significantly on an annual basis, and therefore it
is often unnecessary to change the designations. This change in the
definition would allow the list of significant MSFW one-stop centers to
remain the same if there is no compelling reason to make a change. Also
as proposed, the designation of significant one-stop centers would
include ES offices where MSFWs account for 10 percent or more of
participants or reportable individuals who are served by that ES office
annually, and any other ES offices that the Office of Workforce
Investment (OWI) Administrator includes due to special circumstances
such as an estimated large number of MSFWs in the service area. The
Department proposed to add reportable individuals to the criteria it
considers in making this designation so that the one-stop centers
designated as significant MSFW one-stop centers also account for the
number of MSFWs in the area who are likely to benefit from access to ES
services.
The Department similarly proposed to revise the definition of
significant MSFW States in two ways: first, by removing the text
stating that these designations will be made annually; and second, to
change the basis on which this designation is made from the 20 States
with the highest number of MSFW participants to the 20 States with the
highest estimated total number of MSFWs. The Department proposed to
change the basis on which it makes this designation so that it will
reflect States with the highest total estimated MSFW activity--rather
than the highest numbers of MSFW ES participants--so that the
designation will better reflect the 20 States with the highest numbers
of MSFWs who may ultimately seek assistance from the ES, rather than
just those States with the highest numbers of MSFWs who have already
sought such assistance.
The Department received a few comments that address the revisions
proposed to these definitions. A summary of these comments and the
Department's response is below. After thoroughly considering the issues
and questions that these commenters presented, the Department has
decided to adopt the revisions as proposed, with a clarification to the
definition of significant MSFW one-stop centers as described below.
Comment: A couple of State government agencies expressed concern
that the Department planned to designate significant MSFW one-stop
centers and significant MSFW States based on a blend of data from the
Quarterly Census of Employment and Wages (QCEW) and Census of
Agriculture, because, as they explained, the QCEW and the Census of
Agriculture use disparate definitions and methodologies. Both
commenters recommended that the Department use only QCEW data, from
which they assert the Department could derive annual variable
employment using a time series decomposition model that disaggregates
covered employment by industry in States, agriculture reporting areas,
and counties.
One of these State agencies noted that it did not object to the
proposal to remove annual designations of significant MSFW one-stop
centers and significant MSFW States, but sought confirmation that
States would still be able to submit annual amendments to add or remove
a designated office as warranted by data or due to ES-staffing
challenges in specific offices, site closures, and/or challenges posted
by the Americans with Disabilities Act. This State agency also asked
whether the proposed change would affect the use of Special
Circumstance MSFW one-stop centers, and expressed concern that the
proposed revisions could increase the number of one-stop centers
designated as significant MSFW one-stop centers, which would create a
need for additional resources and State merit staff in offices so
designated.
A farmworker advocacy organization supported the Department's
proposal to designate significant MSFW one-stop centers based on the
percentage of reportable individuals (not just participants) who are
MSFWs, reasoning that many farmworkers who do not participate in the ES
rely on other SWA services and are affected by the SWA's outreach and
monitoring activities.
Response: The Department appreciates the commenters' recommendation
to use QCEW data. The changes will not limit the Department's
consideration to the Census of Agriculture; therefore, the Department
may also consider QCEW data. The Department disagrees with the
commenters that using QCEW and the Census of Agriculture data is
problematic even though they use disparate definitions and
methodologies. The Department often consults multiple data sources to
develop planning estimates and will take differences in source
methodologies while making determinations for significant MSFW one-stop
centers.
In response to the commenter's question regarding whether States
may submit annual updates regarding significant MSFW one-stop center
activity levels, the Department confirms that States may submit such
information and the Department will consider the information to
determine if an update is appropriate. As mentioned in the NPRM, if
annual adjustments are warranted by the data, the Department will make
adjustments. This change would allow the list of significant MSFW one-
stop centers to remain the same if there is no compelling reason to
make a change.
The Department notes that the revised methodology will apply to all
significant MSFW one-stop center designations, including those
significant MSFW one-stop centers that are designated due to special
circumstances and may increase the number of significant MSFW one-stop
centers in some States. An increase in the number of significant MSFW
one-stop centers will not create a need for additional State merit
staff in offices so designated. It would, however, require the SMA to
monitor additional offices onsite.
After further consideration, the Department identified a need to
clarify that the administrator who determines which ES offices must be
included as significant MSFW one-stop centers based on special
circumstances is the OWI Administrator. Accordingly, the Department
adopts the changes as proposed, except to add that the OWI
Administrator makes the determinations.
Removed Definition of Significant Multilingual MSFW One-Stop Centers
The Department proposed to delete the definition of significant
multilingual MSFW one-stop centers because proposed changes to Sec.
653.102 would remove specific requirements for offices that meet this
definition. The Department proposed to remove specific requirements for
significant multilingual MSFW one-stop centers in part 653, because all
one-stop centers must comply with the comprehensive language access
requirements in 29 CFR 38.9, which prohibit discrimination on the basis
of national origin, including LEP, and establish that language access
requirements apply to services that ES
[[Page 82672]]
recipients provide to all individuals with LEP at all one-stop centers
and are broader than the existing requirements for significant
multilingual MSFW one-stop centers.
The Department received two comments that address its proposed
removal of the definition of significant multilingual MSFW one-stop
centers. Both comments and the Department's response are discussed
below. After thoroughly considering these comments, the Department has
decided to remove this definition as proposed.
Comment: Agreeing with the Department's proposal to remove specific
requirements for significant multilingual MSFW one-stop centers (e.g.,
removing the definition of significant multilingual MSFW one-stop
centers) because all one-stop centers must comply with language access
requirements, commenters including a one-stop center employee remarked
that Michigan's one-stop centers have multilingual staff to provide
their customers access to a broader set of services. In contrast, a
State government agency expressed concern that the proposal would
result in ES offices with no bilingual staff at present needing to hire
additional staff who can assist participants with LEP.
Response: The Department notes that all ES offices must meet the
language access requirements in 29 CFR 38.9, regardless of how many
significant multilingual MSFW one-stop centers exist in a State.
Pursuant to 29 CFR 38.9, SWAs must make services available in all
needed languages. SWAs may use bilingual staff to meet this
requirement, but other alternatives are available, such as in-person
interpretation or telephone interpretation services.
State Workforce Agency (SWA) Official
The Department proposed to remove the definition of State Workforce
Agency (SWA) official, because SWA officials would be considered ES
staff based on the Department's proposed revisions to the definition of
ES staff in this rulemaking.
Comment: Two State government agencies and an anonymous commenter
warned that confusion and inconsistency could result from the
Department's proposal to remove the definition of State Workforce
Agency (SWA) official but continue using the SWA naming convention
elsewhere in the regulatory text. The commenters recommended the
Department keep State Workforce Agency (SWA) official as a defined
term, similar to how title I of WIOA defines chief elected official,
while clarifying that a SWA official is also considered ES staff.
Response: The Department appreciates the comments regarding the
potential for confusion or inconsistency related to the use of SWA
official. The Department agrees with these comments. Although the
Department proposed to remove the definition of SWA official, the final
rule maintains the definition of SWA official in existing Sec. 651.10,
which means an individual employed by the SWA or any of its
subdivisions.
Wagner-Peyser Act Employment Service (ES) Also Known as Employment
Service (ES)
The Department proposed to amend this definition to replace the
phrase ``employment services'' with ``ES services.'' The Department
also proposed to remove the words ``and are'' from the definition for
greater clarity. The Department did not receive any comments on this
proposed definition and adopts it as proposed.
C. Part 652--Establishment and Functioning of State Employment Service
1. Subpart A--Employment Service Operations
Subpart A of part 652 includes an explanation of the scope and
purpose of the ES; the rules governing allotments and grant agreements;
authorized services; administrative provisions; and rules governing
labor disputes. The changes to this subpart focus on administrative
provisions governing nondiscrimination requirements. This final rule
also includes a severability provision for part 652 in subpart A.
Section 652.8 Administrative Provisions
The Department proposed to amend Sec. 652.8(j)(2) to correct the
statutory reference regarding the BFOQ exception currently listed in
the regulation as 42 U.S.C. 2000(e)-2(e) to 42 U.S.C. 2000e-2(e).
However, there was a typographical error in the proposed regulatory
text. The final rule reflects the correct statutory reference, 42
U.S.C. 2000e-2(e). The final rule also adds a necessary cross-reference
to the EEOC's regulation regarding religion found at 29 CFR part 1605.
The Department proposed to amend Sec. 652.8(j)(3) to remove an
outdated reference to affirmative action requests to make the
Department's regulation consistent with U.S. Supreme Court
jurisprudence on race-based affirmative action.\5\ The proposed
revision clarifies that the States' obligation is to comply with 41 CFR
60-300.84. The regulation at 41 CFR 60-300.84 requires ES offices to
refer qualified protected veterans to fill employment openings required
to be listed with ES offices by certain Federal contractors; give
priority to qualified protected veterans in making such referrals; and,
upon request, provide the Office of Federal Contract Compliance
Programs with information as to whether certain Federal contractors are
in compliance with the mandatory job listing requirements of the equal
opportunity clause (41 CFR 60-300.5).
---------------------------------------------------------------------------
\5\ See, e.g., Ricci v. DeStefano, 557 U.S. 557, 585 (2009);
Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 238 (1995);
Richmond v. J.A. Croson Co., 488 U.S. 469, 507 (1989).
---------------------------------------------------------------------------
Comment: A one-stop operator and an advocacy organization expressed
concern that, in appearing to prioritize UI recipients over job seekers
as a whole, the proposed rule may not strengthen nondiscrimination
requirements but rather could be discriminatory toward certain classes
of individuals, such as people on public assistance, immigrants and
refugees, people experiencing homelessness, second-chance customers,
people with disabilities, and other groups with historically lower
labor market participation rates. Similarly, a private citizen stated
that staffing flexibility has allowed Colorado to promote and deliver
equitable access to the ES for marginalized and underserved populations
(i.e., priority populations under WIOA) but the proposed rule
emphasizes UI above other services. Several other commenters also
stated that staffing flexibility led to more localized services that
better met the needs of marginalized communities.
A one-stop center employee and other commenters stated that
Michigan satisfies the requirement to give priority to qualified
protected veterans through a 24-hour hold on all job orders. The
comments also discussed how Michigan meets its affirmative outreach
obligation to ensure equal access to services and activities by
coordinating with WIOA partners on outreach and accommodating
individuals with LEP. The comments argued that the proposed changes
would result in staffing cuts, reduced hours, and office closures that
could threaten Michigan's proven record of adhering to
nondiscrimination requirements and providing universal access to ES
services. The commenters added that these impacts would be felt most by
people in rural areas and individuals with LEP.
Response: The changes to this section were made to correct a
statutory reference and to remove an outdated reference to affirmative
action requests
[[Page 82673]]
to ensure that the Department's regulations are consistent with U.S.
Supreme Court jurisprudence on race-based affirmative action. The
changes do not constitute a change in the Department's policies or
treatment of individuals. Just as the previous longstanding State
merit-staffing requirement, which was based in part on the close
relationship between the ES and UI programs, did not violate the
nondiscrimination obligations of the Department and States in
administering the ES program, the reinstatement of the State merit-
staffing requirement in this final rule for similar reasons does not
run afoul of the nondiscrimination obligations of the Department and
States administering the ES program. In re-aligning ES and UI, the
Department is not prioritizing individuals eligible for UI benefits
over individuals in historically underserved or marginalized
populations. The ES is a universal access program. In the Department's
view, reinstating a State merit-staffing requirement not only supports
the historical alignment between ES and UI, but it also helps to
maintain universal access and helps to protect the integrity of the ES
program. As articulated further in discussion of Sec. 652.215 of this
preamble, a State merit-staffing requirement helps to ensure that ES
services are delivered by nonpartisan personnel held to transparent,
objective standards designed to assure high quality performance. In
response to the NPRM, three States--Colorado, Massachusetts, and
Michigan--provided initial justification and data to support use of
their longstanding staffing model and provided information about
significant service disruption that would result from having to upend
their longstanding ES staffing model. However, the initial
justifications and data presented do not provide clear evidence of
causation. Without evidence that alternative staffing models directly
cause higher employment outcomes, balanced against widespread success
in delivering services while maintaining State merit staff for ES, and
further balanced by the need for ES State merit staff to be available
for surges in UI claims and appeals, the Department is generally
adopting the proposed requirement that States use State merit staff to
provide ES services. The three States with longstanding reliance
interests are permitted to continue using the staffing model consistent
with the model the Department previously authorized for that State. The
Department will conduct an evaluation of the three States' provision of
ES services, including review of services of other States that
participate, as necessary, to determine whether such models are
empirically supported and must participate in an evaluation to
determine whether alternative staffing models are empirically
supported. The commenters who indicated that Wagner-Peyser staffing
flexibility allowed States to provide better services to marginalized
communities did not include any data that demonstrates causal evidence
to support this claim. Likewise, the Department has not identified such
evidence to support it.
The Department reminds SWAs that they have an affirmative outreach
obligation under 29 CFR 38.40 that requires them to take appropriate
steps to ensure they are providing equal access to services and
activities authorized under the Wagner-Peyser Act, as well as any other
WIOA title I-financially assisted programs and activities. As outlined
in that regulation, these steps should involve reasonable efforts to
include members of the various groups protected by the WIOA sec. 188
regulations, including but not limited to persons of different sexes,
various racial and ethnic/national origin groups, members of various
religions, individuals with LEP, individuals with disabilities, and
individuals in different age groups.
Section 652.10 Severability
Given the numerous and varied changes the Department proposed and
is adopting, the Department intends the provisions of this rule to be
severable and is including a severability provision in parts 652, 653,
and 658 in this final rule. That intent was reflected in the structure
of and descriptions in the proposed rule. The inclusion of severability
provisions in this final rule confirms the Department's belief that the
severance of any affected provision will not impair the function of the
regulation as a whole and that the Department would have proposed and
implemented the remaining regulatory provisions even without any
others. To the extent that a court holds any provision, or any portion
of any provision, of part 652 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 will be severable from
this part and will not affect the remainder thereof.
2. Subpart C--Employment Service Services in a One-Stop Delivery System
Environment
Subpart C of part 652 discusses State agency roles and
responsibilities; rules governing ES offices; the relationship between
the ES and the one-stop delivery system; required and allowable ES
services; provision of services for UI claimants; and State planning.
Among other changes, the changes to the regulations under subpart C are
tailored to require all States to use State merit staff to provide ES
services, except the three States using longstanding alternative
staffing models previously authorized by the Department. As was true
when the regulations were changed in 2020, none of the changes in this
section will impact the personnel requirements of the Vocational
Rehabilitation (VR) program, one of the six core programs in the
workforce development system. Title I of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended by title IV of WIOA, which authorizes
the VR program, has specific requirements governing the use of State VR
agency personnel for performing certain critical functions of the VR
program.
Section 652.204 Must funds authorized under the Wagner-Peyser Act
Governor's Reserve flow through the one-stop delivery system?
The Department proposed to simplify the section heading to remove
reference to the Wagner-Peyser Act because reference to the Governor's
Reserve is adequate. The Department also proposed amending this section
to reference professional development and career advancement of ES
staff instead of SWA officials. After further consideration, the
Department is not finalizing the proposed change to the section heading
in order to differentiate the Wagner Peyser Act Governor's Reserve from
the WIOA Governor's Reserve. Instead, the Department is making a slight
revision to the current section heading. The new section heading reads,
``Must funds authorized through the Wagner-Peyser Act Governor's
Reserve flow through the one-stop delivery system?'' In addition,
because of the Department's change to the NPRM's proposed definition of
``ES staff'' in this final rule, the Department retains the text of the
existing regulation for this section.
Section 652.215 Can Wagner-Peyser Act-funded activities be provided
through a variety of staffing models?
The Department proposed to amend Sec. 652.215 to require all
States to use
[[Page 82674]]
State merit staff to provide ES services and proposed giving States 18
months to comply with this requirement. After further consideration,
the Department adopts a rule requiring all States to use State merit
staff to deliver ES services, except the three States using
longstanding alternative staffing models previously authorized by the
Department. States authorized to use alternative staffing models will
be required to participate in evaluation(s) of their delivery of ES
services to be conducted by the Department. While the Department plans
on conducting a single evaluation, the rule requires these States'
participation if evaluation activities span more than one study,
including any data collection associated with those evaluation
activities. The Department will conduct this evaluation of the three
States' provision of ES services, including review of services of other
States that participate, as necessary, to determine whether such models
are empirically supported. All States have 24 months to comply with the
staffing requirements in this section.
The Department believes that a State merit-staffing requirement is
a generally reliable method to ensure quality and consistency in ES
services and supports the well-established connection between ES and UI
services. Paragraph (a) of Sec. 652.215 provides that except as
provided in paragraph (b) of Sec. 652.215, all States must deliver
labor exchange services described in Sec. 652.3 using State merit-
staff employees employed according to the merit-system principles
described in 5 CFR part 900, subpart F--Standards for a Merit System of
Personnel Administration. This staffing requirement also applies to the
provision of services and activities under parts 653 and 658.
The Department also recognizes the longstanding reliance interests
of three States that had been authorized to use alternative staffing
models in the 1990s. These States provided initial justification and
data to support use of their longstanding staffing model and provided
information about significant service disruption that would result from
having to upend their longstanding ES staffing model. These three
States have built systems, developed partnerships, and established a
service delivery model that could be reversed only at significant cost
to the State and with significant harm to job seekers and employers.
Accordingly, in paragraph (b) the Department permits only these three
States authorized to use alternative staffing models prior to February
5, 2020, the effective date of the 2020 Final Rule, to continue using
the staffing model consistent with the model the Department previously
authorized for that State. It is the use of a particular staffing model
in each State that engendered each State's strong reliance interest.
Therefore, paragraph (b) also provides that these States may use merit-
staffing flexibility only to the same extent that the Department
authorized it prior to February 5, 2020. This means that if any of the
States covered by paragraph (b) sought to use the 2020 Final Rule to
expand flexibility beyond what was previously authorized in that State,
that State must return to the staffing model in use as authorized by
the Department prior to February 5, 2020.
Paragraph (c) requires that the States permitted to use an
alternative staffing model must participate in evaluations of their
delivery of ES services to be conducted by the Department. The
Department's goal will be to assess ES service delivery in several
States. Requiring the three States authorized to use their longstanding
alternative staffing models to participate in evaluation activities
will enable the Department to determine whether alternative staffing
models are empirically supported.
In response to comments, paragraph (d) lengthens the proposed
transition period, requiring all States to comply with the staffing
requirements in Sec. 652.215 no later than 24 months after the
effective date of this final rule. The Department recognizes that
States will need time to address issues, such as obtaining any
necessary State authorization, procurement, collective bargaining,
hiring, and training.
The following discussion further details the Department's decision.
Potential Impacts of the Rule on the Provision of ES
Benefits of Using State Merit Staff To Deliver ES Services
Comment: Two State government agencies expressed support for the
proposed merit-staffing requirement because it would promote Statewide
uniformity and consistency of employment security services. In
particular, one of these commenters stated the ability to have
consistent hiring practices, standardization of staff onboarding and
training, and continuous professional development training throughout
the State merit staff's employment life cycle ensure the most
consistent and best customer service possible across the State.
Similarly, two anonymous commenters expressed concern about the lack of
consistent ES services throughout Michigan, which one of these
commenters said is a byproduct of local control. These commenters
argued that a consistent service delivery model of providing ES
services through State merit staff would benefit Michigan job seekers
and provide greater transparency and accountability to Michigan
residents.
A State employee association commented that, in passing the Wagner-
Peyser Act, Congress envisioned a federally supported but State-
administered merit system, subject to consistent rules and oversight,
to prevent favoritism and promote equality in the delivery of
employment services.
Response: The Department agrees that using State merit staff to
deliver ES services helps to promote statewide stability and
consistency in service delivery. The Department further agrees that
using State merit staff helps ensure that employment services are
delivered in an equitable manner and on a nonpartisan basis. As noted
earlier in this preamble, in the IPA Congress found that the quality of
public service could be improved by administering programs according to
merit-based principles. Because the ES is a universal access program,
it is critical that it be administered by nonpartisan personnel held to
transparent, objective standards designed to assure high quality
performance.
The Department acknowledges the comments regarding ES service
delivery in Michigan. As noted elsewhere in this preamble, Michigan is
one of three States that the Department authorized to use an
alternative staffing model beginning in the 1990s. Due to the State's
strong reliance interest developed from longstanding use of a
particular service delivery model and the potential service disruption
that would ensue if the State is required to adopt a full State merit-
staffing model, the Department is permitting Michigan to continue using
its longstanding alternative staffing model. The Department is
requiring the State to participate in an evaluation of service delivery
in the State to be conducted by the Department.
Potential Cost Increases of State Merit Staff That May Reduce the
Availability of ES Staff
Comment: Numerous commenters, including an association of State
elected officials, Michigan, Colorado, and Delaware State government
agencies, and Michigan and Colorado local governments, expressed
concern that the proposed rule could make the provision of employment
services less efficient in States that use flexible staffing models and
may reduce access
[[Page 82675]]
to critical workforce resources for job seekers and employers because
the proposal would reduce the number of available ES staff. In
contrast, a private citizen argued that there is little evidence that
the proposed rule would reduce access to workforce resources, reasoning
that in Michigan, if there is a threat of service reduction it is
because the State has used ES funding as a substitute for WIOA funding,
for local staff, or for overhead costs for staff not fully dedicated to
providing ES services.
Many commenters, including Michigan and Colorado State elected
officials, Michigan, Colorado, and Delaware State government agencies,
and Michigan and Colorado local governments, argued that the rule would
cause a significant reduction in ES staff in States that use flexible
staffing models, as well as the closure of many one-stop employment
centers, with the greatest losses occurring in rural areas.
Response: The Department acknowledged in the NPRM that there would
be costs to some States to transition to using State merit staff to
deliver ES services, requested feedback on the transition costs, and
requested feedback on the proposed 18-month transition period. The
Department notes that information that is supported with evidence and
data sources is more strongly considered than information that is
unsubstantiated. The States of Delaware, Michigan, and Colorado
provided new information in their comments on the NPRM that are
relevant to the NPRM's regulatory impact analysis. These States
detailed impacts on existing contracts and procurement, recruitment,
training, staffing, collective bargaining, technology costs,
infrastructure changes, funding, and the extent of service disruptions
that would result from imposition of a State merit-staffing requirement
because these States have utilized approved alternative staffing models
for many years. Some commenters provided information based on a survey
stating that there will be job losses and center closures as a result
of the State merit-staffing requirement. A few additional States
responded to indicate that they may be utilizing staffing flexibility,
although the Department was previously not aware they intended to
utilize the staffing flexibility provided by the 2020 Final Rule. Those
States did not estimate transition impacts as requested by the
Department in the NPRM.
The Department has considered the comments opposing the
reinstatement of the State merit-staffing requirement and found the
comments from Colorado, Massachusetts, and Michigan the most compelling
due to their longstanding reliance interests on using alternative
staffing models. Based on these comments the Department has determined
that States are required to use State merit staff to provide ES
services, except Colorado, Massachusetts, and Michigan. The final rule
is allowing these three States to use merit-staffing flexibility to the
same extent previously allowed by the Department prior to February 5,
2020, the effective date of the 2020 Final Rule. As discussed above,
the Department is requiring these States to participate in an
evaluation of ES service delivery staffing models. All States will have
24 months to comply with the requirements in this final rule.
ES Service Delivery and Customer Impacts
Comment: Many commenters described the services made available
through Wagner-Peyser Act funding and expressed concern about a
disruption or outright elimination of such services due to the proposed
merit-staffing requirement, as described below.
Many Michigan commenters, including private citizens and one-stop
center staff, discussed the value of the supportive services they have
received or provided through Michigan Works! offices, including
assistance with important tasks for job seekers such as developing a
resume, strengthening interviewing skills, and performing job searches;
some of these commenters, including one-stop center employees, stated
that local center staff help alert customers to the availability of
such services. A one-stop center employee stated that local ES workers
have the best understanding of community needs and are often the first
point of contact to help customers navigate available programs.
Many commenters, including Michigan and Massachusetts State
government agencies, Michigan and Colorado local governments, and
advocacy organizations, went on to more specifically describe one-stop
employment centers' role in preparing job seekers for employment and
connecting them with employers who want to hire them, including
services such as facilitating training programs, hosting job fairs and
career awareness events, organizing industry collaboratives, helping
craft resumes, and providing job searching and interviewing tips.
According to some of these commenters, including Michigan local
governments, a key benefit of staffing flexibility is strong local
strategic relationships with businesses, higher education, nonprofits,
childcare, elementary and secondary education, adult education
providers and other partners, which allows for more efficient customer
service to connect job seekers to in-demand jobs and training
opportunities.
Furthermore, many commenters, including Michigan and Colorado State
elected officials, Michigan and Colorado local governments, and
advocacy organizations, claimed that the status quo staffing
flexibility has helped States and localities achieve specific, positive
outcomes in terms of newly employed individuals, employment rates,
average worker earnings, numbers of employers served, total economic
impact, increased tax revenue, and returns on investment.
Response: The Department appreciates the concerns raised by
commenters and agrees that the quality of ES services is important. The
commenters highlighted the benefits of the services provided to
participants but did not provide evidence that the staffing model is a
causal factor in the quality of those services. Though the Department
agrees that local relationships are important in business services,
local areas in States across the country using State merit staff for ES
manage to develop such relationships. Commenters did not provide any
evidence that strong local relationships are only possible with
alternative staffing models, or that using a non-State-merit staffing
model is a causal factor in developing strong business relationships.
Without such evidence, balanced against the benefits of State merit-
staffing described above, the Department will not extend the ability to
use alternative staffing models to other States besides Colorado,
Massachusetts, and Michigan. Therefore, the Department has determined
that States are required to use State merit staff to provide ES
services, except the three States that have long been allowed to use
alternative staffing models.
Comment: A State workforce development board said that data shows
that former demonstration States using local merit and non-merit staff
to deliver ES services have been successful and argued that all States
should examine strategies to further service integration. Another State
workforce development board and a professional association stated that
it appreciated the approach ``created by Congress'' wherein the Federal
government partners with State and local workforce program, providing
performance goals and broad working parameters, but leaves States to
manage their operations based on the diverse needs of businesses and
workers in their
[[Page 82676]]
communities. These commenters urged the Department to permanently
codify staffing flexibility.
Response: As explained earlier in the preamble, the Act gives the
Secretary discretion to require that States use a staffing model that
will promote the goals of the ES program. For reasons articulated in
the NPRM and this final rule, the Department has determined that that
model is State merit-staffing. Three States using longstanding
alternative staffing models presented arguments in support of retaining
those models, but the information provided did not show a causal impact
of the staffing model in these States and performance. Accordingly, the
Department declines to extend staffing flexibility to all States. The
Department reinstates a State merit-staffing requirement for ES
services with the exception of the three States with longstanding
reliance interests. These States are required to participate in
evaluation of their delivery of ES services conducted by the
Department, including review of services of other States that
participate, as necessary, to determine whether such models are
empirically supported.
Comment: Some commenters, including one-stop operators, private
citizens, and others, listed several potential impacts on customer
service as reported by stakeholders concerned about the proposal,
including closure of ES offices (particularly in rural areas), reduced
hours of operation for offices, disruption of referrals, curtailed
services to immigrants, veterans, and other vulnerable populations,
fewer opportunities for career awareness events or job fairs, and
reduced access to technology. Many commenters, including Michigan local
governments, a Michigan State elected official, and Michigan one-stop
operators, also warned that the rule would cause one-stop centers to
reduce or eliminate their job seeker and employer workshops, career
fairs, and career awareness events, as well as their efforts to
facilitate job seekers' enrollment in and funding for schools and
training programs. Some commenters, including Michigan one-stop
operators, Michigan one-stop center staff, and an employer, warned that
with the reduced staffing flexibility under the rule, customer service
in employment services would decline, with reductions in virtual
services, less personal services, and with services only provided by
appointment to customers who meet specific criteria. Several
commenters, including a one-stop center employee, private citizens, and
a Michigan State government agency, asserted that Michigan Works! staff
anticipate disruptions to the ``more than 3,600 services'' provided to
industry-led collaboratives, 7,500 job fairs, and other services that
have been successfully delivered over a 25-year period.
Several commenters referred to the minimum services required by
Sec. 652.3 noted in the NPRM (including facilitating the connection
between job seekers and employers) and questioned how their State would
continue to provide these essential services with just an estimated 25
percent of their current staffing level. The commenter asked whether a
certain service or customer sector would take priority in cases where
staffing shortages impact service availability, and further questioned
how robust services would be provided if ES staff are reassigned to UI.
A few one-stop center employees and a local government remarked that
the proposal would disrupt convenience or would lengthen ``turnaround
time'' for service delivery to job seekers, an outcome that the
commenters warned would adversely impact job seekers, employers, and
the local community.
A local workforce development board described how ES staff work
with job seekers to determine their unique needs, increase their
marketability in the labor market, or otherwise provide ``intensive job
search assistance.'' The commenter said these comprehensive services
would be disrupted, causing a gap in service provision, and adversely
affecting job seekers. The commenter provided figures to demonstrate
the economic value of participation in the WIOA's adult and youth
programs and expressed concern that these economic impacts would be
reduced or lost if existing ES staff are unable to support the
comprehensive set of services they currently provide. A private citizen
said ES customers need career services to build a sustainable work
history.
Several commenters asserted that one-stop organizations in its area
take pride in providing quality customer service and argued that local
control over Wagner-Peyser Act ES programs is critical to positive
impacts associated with its workforce development programs, citing
statistics about the numbers of individuals and businesses served,
numbers of workshops and hiring events hosted, and economic figures
demonstrating economic impact and an overall return on investment.
A State government agency recommended that the Department maintain
staffing flexibility to avoid service disruption during emergencies. An
anonymous commenter expressed concern that changing a system that works
well will place ``stress'' on their State government, which is dealing
with challenges related to the pandemic and unemployment.
Some commenters, including a Michigan State government agency and
an employer, asserted that the proposal would result in the loss of
many full-time employees and expressed concern about the ability of
fewer State merit staff to handle the leftover caseload. The Michigan
State agency asserted that this staffing shortfall would cause one-stop
customers to experience increased delays, inefficiencies due to remote
service delivery or multiple case managers, and challenges in
scheduling appointments (potentially resulting in increased
transportation or childcare costs).
Response: The Department appreciates the concerns raised by the
commenters. Commenters' concerns appear to generally stem from an
assumption that the use of State merit staff for ES services would be
more expensive and thus result in the closure of one-stop centers,
reduction of one-stop hours, and programming cuts. While the commenters
provided no evidence that the rule change would result in these
reductions or closures, the Department understands that there may be
costs and disruption associated with a transition to State merit staff,
particularly for the three States that have longstanding reliance on
being able to use alternative staffing models, as described above.
Therefore, the Department will permit alternative staffing models in
the three States with long-time reliance on such models.
Service to Specific Populations or Vulnerable Populations
Comment: Many commenters, including a Colorado State government
agency, Colorado local government agencies, and advocacy organizations,
warned that the rule would cause reductions in ES services in States
that use flexible staffing models. These commenters expressed concern
that such reductions would be associated with services that are
designed specifically to aid vulnerable populations, or those who
otherwise have significant difficulty in finding employment, thus doing
them particular harm. In this category of vulnerable populations,
commenters included groups such as veterans, immigrants, refugees,
youth, people living in rural areas, people with disabilities, formerly
incarcerated people, and other vulnerable job seekers.
Several commenters, including private citizens, advocacy
organizations, a local government, and others, stated that local
Michigan Works! offices serve
[[Page 82677]]
the most vulnerable populations in a given community, including
veterans, low-income adults, dislocated workers, individuals with
intellectual disabilities, older workers, youth, and immigrants and
refugees, and expressed concern that the proposal would disrupt or
eliminate services to the detriment of these vulnerable populations. A
one-stop center employee similarly referred to these population groups
and expressed concern that the proposal would delay service delivery
for these groups and would adversely impact ``follow through'' and
information sharing between States and agencies. Some commenters,
including a Michigan State government agency, a Colorado local
government agency, and many Michigan one-stop center staff, also
described the specific needs of the people generally served by one-stop
centers; in general, these are vulnerable and low-income populations,
in need of significant support in the job seeking process, including
transportation, clothing, food, childcare, technology assistance,
substance abuse counselling, and medical care.
An academic commenter described their organization's strong
relationship with a local Michigan Works! office and expressed concern
that the proposal would disrupt services to the most vulnerable
communities in their area. The commenter said their organization
benefits from employment and training services for immigrants and
students and expressed particular concern about the potential
elimination of the Teach Talent Thrive program that promotes lifelong
learning and career readiness.
An adult education provider stated that their organization partners
with the local Michigan Works! office to provide career training and
education services to adults and students, including coaching for
career readiness, job searching, and aligning skills with a desired
career pathway. The commenter also said the proposal would
``compromise'' Governor Whitmer's Sixty by 30 plan that seeks to close
socioeconomic gaps for vulnerable populations, including the
economically vulnerable adults served by the commenter's organization.
Some commenters, including an employer, an advocacy organization,
and a private citizen, expressed concern that the proposal would
disrupt services for veterans, including programs that support
employment for veterans with employment barriers, services for active-
duty military members, and military spousal services.
An advocacy organization expressed concern that ``impactful''
programs such as the Clean Slate program (which provides supportive
services for formerly incarcerated individuals or individuals with
criminal records) and the Going Pro Talent Fund (which provides skills-
based certificate training) would be adversely affected by the
proposal. A local workforce development board stated that local ES
staff partner with programs like the Disability Program Navigator to
enhance local capacity to provide services for people with
disabilities, including helping such individuals navigate available
services. A private citizen described how receiving supportive services
from their local Michigan Works! service center has benefited their
family member with intellectual disabilities and remarked that such
services are difficult to find.
A private citizen concerned about a disruption of critical services
to vulnerable populations remarked that Michigan Works! has proven it
is ``best in class'' as an ES provider, citing figures from 2018 and
2019 that showed Michigan was among the 10 States with the lowest costs
of career services per participant served.
Response: The Department appreciates the concerns raised by
commenters and agrees that the quality of ES services is important,
particularly for vulnerable populations. The ES is a universal access
program. The Department prioritizes the needs of vulnerable populations
in this rulemaking and believes that changes in this rulemaking further
the goal of universal access. Requiring States to use State merit staff
to provide ES services will better protect vulnerable individuals
because State merit staff are employees of the State who are subject to
merit system principles and are thus directly accountable to the State
and administer the ES with greater transparency and accountability than
other staffing models.
The staffing requirements in part 652 apply to the delivery of
services and activities under parts 653 and 658. Using State merit
staff for these services is appropriate because these staff positions
perform worker protection functions for MSFWs, who are particularly
vulnerable to employment-related abuses. These staff require
centralized training and management from the State to ensure they are
equipped to assess and respond to farmworker needs, including
responding to complaints and apparent violations in the field, which
may include highly sensitive subject matter like human trafficking.
As stated above, the Department also recognizes the longstanding
reliance interests of three States--Colorado, Massachusetts, and
Michigan--and based on comments received about the negative impacts
that requiring these States to change their ES service delivery models
would have on service delivery, the final rule is allowing these three
States to use the staffing models they have been allowed to use since
the 1990s. Adjusting to avoid negative impacts to these three States'
service delivery caused by the transition costs involved in changing
decades-long practice is aligned with the Department's prioritization
of the service delivery needs of vulnerable populations.
Business Services and Partnerships
Comment: In addition to comments focused on the rule's detrimental
effects on job seekers, many commenters, including Michigan local
governments, a Michigan State elected official, and Michigan one-stop
operators, also expressed concern that the rule would have a
significant negative effect on businesses and employers, primarily by
reducing recruiting services to businesses seeking help in filling
vacancies, as well as reduced job retention efforts. Numerous
commenters, including an association of State elected officials,
Michigan, Colorado, Massachusetts, and Delaware State government
agencies, and Michigan and Colorado local governments, argued that the
one-stop employment centers, operated by local merit staff, deliver
high-quality, cost-effective services to job seekers, and that existing
staffing flexibility enables local centers to create strategic
partnerships with businesses, schools, and nonprofits, all of which
help better serve job seekers and businesses. Some commenters,
including Michigan local governments, a Michigan State elected
official, Michigan one-stop operators, and others, also warned that the
rule would force one-stop centers to cut their industry-led
collaboratives. Some commenters from Massachusetts, including a State
government agency, local workforce development boards, and a local
government employee, argued that implementing the rule would undermine
business commitments and partnerships with ES services in States that
use flexible staffing models because of the appearance of political
instability and unnecessary bureaucratic change.
Several commenters, including employers, one-stop center employees,
and a local workforce development board, described how ES services
benefit businesses, such as through job fairs, retention services,
online job postings, and other programs that connect job seekers and
employers. The
[[Page 82678]]
commenters expressed concern that the proposal would disrupt such
services. Some commenters, including a private citizen and an employer,
remarked that many businesses are struggling to find employees and
credited local services that use Wagner-Peyser Act funding with
providing critical assistance connecting employers and employees.
Several commenters stated that Michigan Works! has provided ``more than
141,000 services to businesses'' and cited responses from program
stakeholders who believed these services would be reduced or eliminated
if reinstating merit-staffing impacted uses of Wagner-Peyser Act
funding. A private citizen remarked that Michigan Works! services in
their area assist employers with upskilling and retention of employees.
A Colorado State government official asserted that the use of local
merit staff for Wagner-Peyser Act programs has allowed Colorado to
fully implement the ``primary vision'' of WIOA, effectively emphasize
employer engagement, encourage work-based learning, and maximize
support for local businesses based on local community and competitive
needs.
Some commenters, including a Colorado local workforce development
board, an employer, and a one-stop center employee, specifically
claimed that one-stop centers have been particularly helpful in
connecting employers with skilled employees in the manufacturing
sector, as well as facilitating training; thus, the implementation of
this rule would do particular harm to the struggling manufacturing
sector in the States that use flexible staffing models.
Several commenters, including a Colorado State government, local
governments, employers, and private citizens, asserted that the
proposal would fracture relationships forged at the local level,
harming both job seekers and employers. A Colorado local government and
a local workforce development board said strong relationships between
ES staff and local employers has resulted in a Subsidized Employment
program that connects employers and entry level workers and expressed
concern that this program and other comprehensive wrap around services
would be lost due to the State merit-staffing requirement. An anonymous
commenter remarked that local residents consider the local one-stop
center to be a ``neutral third party'' for businesses and job seekers,
and expressed concern that this would be disrupted due to the merit-
staffing requirement.
A local workforce development board stated that their State's
current one-stop delivery model works well for businesses by connecting
them with job seekers as well as training resources. Some commenters
asserted that as a result of the proposal, employers will lose access
to support for posting job orders and connecting with job seekers.
A one-stop center employee argued that serving business requires
staff ``out in the field'' and remarked that one-stop workers must seek
out businesses, not the other way around. A trade association similarly
remarked that the proposal would make it harder for businesses to
engage with the workforce system and could result in the cancellation
of contracts or other transition costs.
A private citizen remarked that their local Michigan Works! office
has effectively helped businesses attract and develop their workforces,
including assisting businesses in securing grants to train and invest
in current employees and add new staff. Similarly praising Michigan
Works! employees' support for local businesses, another private citizen
expressed concern that the proposed merit-staffing requirement would
negatively impact local communities at a time when labor concerns
hinder businesses across the State.
Some commenters, including State and local workforce development
boards from Colorado, a trade association, a commenter from academia,
and an employer, discussed the value of working with local ES staff due
to their expertise in the local economy and knowledge of competitive
factors in a given area, arguing that the ability to provide ES
services using local merit staff maximizes the level of support
provided to local businesses. A local government expressed concern that
the proposal would disrupt established relationships between local
staff and employers and economic development organizations at the
community level.
Some commenters, including an advocacy organization, a trade
association, a Colorado local government, and private citizens,
discussed the value of local knowledge in serving the needs of local
businesses and job seekers, with some discussing the varied needs of
businesses and job seekers in urban and rural areas. A Colorado local
government and a Colorado one-stop operator similarly argued that
employers benefit from working with staff who have a regional
perspective on what businesses need. A Colorado local workforce
development board similarly discussed the value of local control of ES
services and the knowledge of local and regional economic conditions,
including whether the economy is prosperous, whether employers are
facing labor shortages or scarcity, and whether unemployment rates are
high or low. The commenter said removing local control would result in
slower services and a less nuanced and dynamic response to citizen and
business needs.
An advocacy organization described the value of local industry-led
initiatives in serving employers' unique regional needs and expressed
concern about such initiatives' continued success if ES staff are
reduced or reassigned. A Colorado local workforce development board
described sectoral partnerships developed by local staff working in the
communities they serve, including partnerships in the healthcare,
information technology (IT), construction, and transportation sectors.
A different Colorado local workforce development board expressed
concern that the proposal would ``dismantle'' successful regional
industry sector work that has developed over the past decade. A private
citizen and an anonymous commenter described services provided to
businesses made possible by local staff's relationships with those
businesses and expressed concern that the proposal would result in the
loss of ``local control.''
A Colorado employer and a few private citizens argued that county
merit staff have developed expertise on the local economy and community
needs, asserting that State or Federal employees are less capable of
developing successful local connections with local businesses.
Several commenters, including trade associations, private citizens,
a one-stop center employee, an advocacy organization, and Colorado
local workforce development boards, argued that local workforce staff
have the necessary local and regional understanding to establish
effective partnerships with local partners and organizations. Several
commenters, including a Michigan State elected official, a Michigan
local elected official, Michigan local workforce development boards,
one-stop operators, and Michigan local governments, similarly remarked
that the ability to develop strategic partnerships with local
nonprofits, businesses, educational institutions, and other
organizations is a key benefit of ES staffing flexibility because these
relationships facilitate connections between students, job seekers,
training providers, and local employers.
A private citizen remarked that staff in their local Michigan
Works! office had a knowledge of local business needs
[[Page 82679]]
and hiring trends that was critical in accessing the right services for
the commenter to remain competitive in the local job market.
Response: The commenters highlighted the benefits of the services
provided to businesses, and the Department agrees that business
services and partnerships with businesses are important. However, the
commenters did not explain why the ES staffing model is a causal factor
in the quality of those business services and partnerships. Many other
States use State merit staff to successfully provide services to
businesses and job seekers. The Department recognizes the longstanding
reliance interests of Colorado, Massachusetts, and Michigan, and will
therefore allow these States to utilize the longstanding alternative
staffing models the Department previously allowed them to use. These
States may exercise merit-staffing flexibility to the same extent
previously authorized by the Department for that State prior to
February 5, 2020, the effective date of the 2020 Final Rule. The
Department also is requiring these three States to participate in
evaluations of their ES service delivery model to be conducted by the
Department.
Access--Transportation and Virtual Services
Comment: Some commenters, including an anonymous commenter, a one-
stop center employee, a local workforce development board, and a
private citizen, stated that their local service office has offered
assistance in using technologies or online services that are vital to
employment and expressed concern about losing access to such support.
Some commenters, concerned about the disruption or closure of
Michigan Works! offices in their area, including a local workforce
development board and a one-stop center employee, worried that
customers would need to travel longer distances to access needed
services, with many stating that rising gas prices and other
complications (such as the sparse availability of public transportation
in certain areas) will make transportation particularly challenging for
many one-stop center customers.
Response: The COVID-19 pandemic highlighted the need for States to
have staff to serve as surge capacity for times of high demand for UI
claims. The Department agrees that in-person services are valuable,
even as technology makes virtual services easier to develop and
deliver. States across the country, the vast majority of which use
State merit staff, have successfully used a combination of
comprehensive and affiliate AJCs, access points, mobile AJCs, and
online and virtual services to a reach geographically distant job
seekers and those without reliable transportation. Data do not show a
relationship between staffing models and the number of AJCs or access
points per capita in the State. The Department also recognizes the
longstanding reliance interest that Colorado, Massachusetts, and
Michigan have in using alternative staffing models authorized by the
Department. The Department is permitting these States to continue using
the longstanding staffing models the Department allowed them to use in
the 1990s. These States may use merit-staffing flexibility to the
extent permitted by the Department in that State prior to February 5,
2020, the effective date of the 2020 Final Rule. All other States,
including those that began using the staffing flexibility provided by
the 2020 Final Rule, are required to use State merit staff to provide
ES services. The Department will further examine various staffing
models and methods of delivering labor exchange services, including
evaluation activities for which the Department will require the
participation of the three alternative staffing model States. All other
States will have 24 months to comply with the requirement to use State
merit staff to provide ES services. No additional States are permitted
to pursue adoption of an alternative staffing model during the
transition period; the final rule is effective 60 days after
publication in the Federal Register. The 24-month transition period for
complying with the State merit-staffing requirement is intended only
for those few States that began using staffing flexibility in response
to the 2020 Final Rule and now must transition back to using State
merit staff.
Training and Other Considerations for Employees Delivering Services
Comment: A think tank remarked that many State agencies face
multiple challenges, including staffing shortages, funding shortfalls,
and backlogs, and warned that the proposal could exacerbate these
issues because contract staffing or other staffing flexibilities offer
workable solutions. A local government expressed concern about forcing
programs to re-structure existing staffing models, stating that the
proposed rule could result in laid off staff, damage to staff morale,
and a reduction of ``vital employment services'' like labor exchange
services, career workshops, and services related to community
engagement and service navigation.
Some commenters, including a one-stop center employee and a private
citizen, warned that hiring or training new staff could lead to
discrimination or bias against existing staff or entry-level staff. A
private citizen remarked that local agencies may have different
retirement or healthcare benefits for staff based on agreements with
local or country governments, and expressed concern that changing
staffing arrangements could disrupt pension or healthcare benefits for
some workers. A one-stop operator acknowledged that ensuring employees
receive fair wages and benefits was a motivation for the NPRM and
remarked that the retirement and medical benefits available for public
employees in its county are among the top plans nationwide.
An anonymous commenter argued that it would not make sense to train
new individuals to replace the current staff in Workforce Centers, who
have already developed relationships with customers.
A private citizen remarked that Colorado's current staffing model
creates a greater level of oversight because county merit-staff
employees are accountable to both the State and county government. A
State government referred to the Department's rationale about State
merit staff's accountability and asserted that county merit employees
are already sufficiently accountable to their local county government.
An advocacy organization stated that currently employee performance is
assessed and measured using customer service metrics and they expressed
concern that the proposal would alter and complicate performance
assessments.
Response: The Department recognizes that there will be transition
costs to some States, which was included in the NPRM's regulatory
impact analysis. New information regarding transition costs and impacts
was provided in comments to the NPRM from States utilizing alternative
staffing models. The Department considered these comments in developing
the final rule but, for the reasons discussed throughout, the
Department has decided to require that States use State merit staff to
provide ES services, with limited exception. The Department is allowing
the three States with longstanding reliance interests--Colorado,
Massachusetts, and Michigan--to continue to utilize their longstanding
alternative staffing models for ES services and is requiring their
participation in an evaluation to be conducted by the Department.
[[Page 82680]]
Transition Period
Comment: In addition to reduced future employment services, some
commenters, including an association of State elected officials, a
Colorado State government agency, Colorado local government agencies,
and others, claimed that there will be significant transition costs and
logistical challenges for States to transition to a model by which
employment services are only provided by State merit staff.
During this transition period and for some time after, a Colorado
State elected official and State government agency warned that
compliance and performance standard failures will likely become more
common.
While most commenters wrote about the effects the rule would have
if implemented, some commenters, including a Colorado State elected
official, a Colorado local government agency, and a one-stop center
employee, argued that the proposed merit-staffing requirement has
already had a chilling effect, with former demonstration State one-stop
centers and localities unable to approve budgets, not knowing what
future grant levels will be, and with one-stop center staff already
seeking employment elsewhere in anticipation that their positions will
be terminated soon anyway.
A State government agency discussed the challenging logistics of
implementing a State merit-staffing model within 18 months,
anticipating additional staffing needs as well as a challenging
timeline for State legislature approval of additional funding for
additional staff. The commenter requested a 3-year implementation
timeframe to make requests for additional staff and funding during the
State legislature's budget cycle.
Conversely, several unions who supported the proposal agreed with
the proposed 18-month transition timeline and recommended that the
Department provide assistance and support to any States using
alternative or flexible staffing models, reasoning that such assistance
would help prevent disruptions to Wagner-Peyser Act services. One union
suggested that the Department ``require sufficient staffing to monitor
and support'' the transition in States using flexible staffing models.
State and local workforce development boards, a Colorado State
government agency, and a Colorado local government requested a 36- to
40-month transition timeline (depending on if and when the rule is
finalized) allowing for full compliance by December 31, 2025. The
commenters cited the State legislative process and funding needs to
both maintain quality services and hire and cross-train new staff as
factors that necessitate a longer transition period.
A Colorado State government agency and State and local workforce
development boards said State legislation would be needed to allow
Colorado to come into compliance with the Federal rule and anticipated
that current staff may leave their posts as soon as the rule is
finalized (which, the commenters asserted, would require time and
funding to find and train their State merit-staff replacements). The
commenters also stated that the funding and effort required to hire and
train new State merit staff would require funding from the PY 2024
Wagner-Peyser Act allocation as the PY 2023 amount likely would not be
sufficient.
A Colorado one-stop operator argued that the transition timeline is
``irrelevant'' because the proposal will cause impacts immediately. The
commenter argued that the proposal has already created concerns among
local employees about their job security and, thus, announcement of a
finalized nationwide merit-staffing requirement would result in
immediate departure of ES staff, concluding that Wagner-Peyser Act
services will ``cease immediately'' if the proposal becomes final.
A Michigan State government agency requested an extension of the
implementation period from 18 months to 3 years, arguing that
modifications to State departments' structure, State budget processes,
and public sector recruitment, hiring, and training functions will take
time. The commenter anticipated that 90 new staff members would need to
be hired and trained and remarked that this would require the State
legislature to approve a staffing structure modification (adding that
their State legislature is ``extremely resistant'' to adding new full-
time employees to State departmental budgets). The commenter said the
longer implementation period would be necessary to ensure there are no
disruptions to service delivery and reorient the local workforce
development structure. If the Department finalizes the merit-staffing
requirement as proposed, this commenter also requested a 3-year
reprieve from Wagner-Peyser Act and WIOA title I performance reporting
and suggested that a new performance baseline would need to be
negotiated and established.
Opposing the proposed merit-staffing requirement, several
commenters, including a one-stop center employee, argued that 18 months
was insufficient to ``revamp'' an ES delivery system that has been
constructed over the past 25 years and requested that, if the proposal
is finalized, more than 18 months be provided for transition and
transition should align with a new program year. These commenters
described the ``painful'' impacts of Michigan's 1998 transition from
State merit staff to local merit staff, including lack of coordination
in program delivery and diminished customer service.
A Massachusetts State government agency opposed to the proposal
requested a ``significantly longer timeline'' to assess, plan for, and
implement the merit-staffing requirement, asserting this would require
the conversion of more than 40 local Wagner-Peyser Act staff into State
merit staff. The State government listed difficulties associated with
an anticipated ``major infrastructure change,'' including facilitating
staff turnover and hiring new staff, negotiating with unions, approval
of ``spending controls,'' and considerations of lease or other
contractual agreements. The commenter also mentioned that the
forthcoming WIOA reauthorization potentially complicates the overall
timeline. Ultimately, the commenter requested that the implementation
period should last until at least January 2025.
Describing the proposal as a major disruption to Colorado's
workforce system, the commenter discussed how the staffing transition
would impact program offices in Colorado, including ``mass layoffs'' of
145 county staff (and associated negative impacts on morale), fewer
full time Wagner-Peyser Act staff resulting in scaled back services for
vulnerable populations, lost productivity, customer service
disruptions, increased errors by ``unseasoned staff,'' and potential
lawsuits or other complications due to union representation of State
staff.
Several commenters remarked that, based on average turnover rates,
Michigan's local offices may have 18 open ES positions at any given
time. A Colorado State government agency asserted that the proposal
would make it difficult to hire new outreach staff. Additionally, a
Delaware State government agency further warned that the process to
replace Wagner-Peyser Act contractors and local staff with State merit
staff will be procedurally challenging and time consuming, with no
guarantee that the staff requests will be approved by the relevant
State government bodies. A local workforce development board remarked
that its local service center could not move forward with planning
programming and strategies for the forthcoming
[[Page 82681]]
program year (which begins on July 1st of this year) because they are
unclear as to the financial implications of the proposal. Similarly, a
Colorado State government agency expressed concern about changing
regulations during ``the current 2020-2023 demonstration period''
because neither former demonstration States nor the Department would
have enough time to provide evaluative data on the benefits and
challenges with the flexible staffing model approach.
Response: The Department proposed an 18-month transition period for
States to comply with the requirement to use State merit staff to
provide ES services and estimated transition costs in its regulatory
impact analysis. In the proposed rule the Department specifically
requested information regarding States' transition costs and the
proposed 18-month transition period should this requirement be
implemented for all States. The Department received comments regarding
the length of the transition period, with some commenters suggesting a
2-year transition period, while others suggested a longer or
unspecified period of time. The three States with longstanding reliance
interests requested a 3- to 4-year transition period. As noted
throughout this preamble, based on information provided by these three
States in response to the NPRM, the Department is allowing these States
to continue to use the alternative staffing models consistent with the
models previously approved by the Department in these States. The
Department is requiring these three States to participate in
evaluations of their ES service delivery models. The Department
recognizes that there are certain transition costs associated with
shifting back to the use of State merit-staffing, which may include
State legislation, budget restructuring, and hiring, and these
processes, particularly those that require State legislative action,
may take longer than 18 months. Therefore, the Department is requiring
all other States, including States that began using alternative
staffing models following the 2020 Final Rule, to comply with the
requirement to use State merit staff for ES services within 24 months
of the effective date of this final rule. This includes the requirement
to use State merit staff to conduct outreach and provide other services
to MSFWs under parts 653 and 658.
Relationship Between Employment Services and Unemployment Insurance
Consequences of Having the Same Staff Manage ES and UI in States That
Are Currently Operating Flexible Staffing Models
Comment: Many commenters, including a Michigan State elected
official, a Massachusetts State government agency, and Colorado local
governments, articulated that local merit staff at one-stop centers in
former demonstration States already provide significant resources,
guidance, and other support to UI claimants, many of whom face
technological and transportation barriers in making successful
unemployment claims, and claimed this role was particularly important
during the UI demand surge caused by the COVID-19 pandemic.
Some commenters, including one-stop center staff and a private
citizen, warned that assigning ES staff to UI adjudications during UI
surges would unnecessarily burden ES staff and cause the quality of
employment services in the States that use flexible staffing models to
degrade even further during UI surges.
An advocacy organization argued that the relatively small number of
new State merit staff this rule would create in States that use
flexible staffing models would not make the States significantly more
prepared to handle UI surges. Similarly, a Colorado State elected
official and a Colorado local workforce development board argued that
States that already require Wagner-Peyser Act ES services to be
provided by State merit staff did not perform any better in processing
UI claims during the UI surge caused by the COVID-19 pandemic than the
former demonstration States.
A one-stop center employee similarly argued that the rule could
actually decrease the number of staff available to assist with UI
claims during a UI surge in States that use flexible staffing models;
this commenter argued that because one-stop center staff in former
demonstration States are already assisting with the UI claims process,
by causing an overall reduction in ES staff, such States would lose
this surge capacity.
Some commenters, including one-stop center employees, trade
associations, and a private citizen, expressed concern about skill
misalignment and warned that the proposal would require retraining
workers who provide employment services to perform tasks related to
adjudicating UI claims, functions the commenters argued require
different skill sets and workstyles. A one-stop center employee
expressed concern about ES staff taking on the duties of UI staff and
argued that ES staff will not be familiar with practices critical to
the management of UI benefits (such as timely administration of the
``work test.'') A private citizen remarked that Michigan's local ES
offices have been successful in providing a wide range of services to
both job seekers and businesses seeking employees while, in their view,
the merit-staffed State UI program has been ``a debacle.''
A Colorado State government agency expressed concern about the
effort and funding required to onboard or cross-train staff and
remarked that new hires may not be available to provide services
throughout their first year due to the time needed to complete required
trainings for both UI and Wagner-Peyser Act programs.
Response: The Department proposed to require that States use State
merit staff to provide ES services, which aligns the provision of ES
services with the requirement that States administer certain UI
activities with State merit staff. The Department notes that the NPRM
did not propose requirements on States to train or use their ES staff
for UI activities. Neither is the Department requiring that States
cross-train ES staff for UI activities in this final rule. However, the
ability for States to cross-train would generally better equip States
to be able to use ES staff for certain UI activities that require State
merit staff in times of high need. While the Department encourages
States to plan for increases in UI demand including through cross-
training, a State can develop cross-training that it wishes to
implement at its own pace. The Department recognizes the role that
other staff in an AJC may play in connecting job seekers with UI
services, but also notes that the ES has specific duties to assist UI
claimants to become reemployed. Providing information and meaningful
assistance in filing a claim for unemployment compensation is an
allowable cost under the Wagner-Peyser Act. The Department also
recognizes the longstanding reliance interests of Colorado,
Massachusetts, and Michigan, in utilizing alternative staffing models
and that a requirement to use State merit staff may impact these States
differently than other States. Therefore, the Department is allowing
these three States to continue to use the longstanding alternative
staffing models previously approved by the Department in these States.
The Department is requiring these three States to participate in
evaluations of ES service delivery and alternative staffing models.
[[Page 82682]]
Support Ability of State Merit Staff To Provide Surge UI Claims
Processing Capacity
Comment: Many commenters, including unions, advocacy organizations,
think tanks, and a State government agency, expressed support for the
proposed ES merit-staffing requirement because of State merit staff's
ability to play roles in administering UI programs and connecting
jobless workers to UI benefits. Specifically, some of these commenters
remarked that, because only State merit staff can legally adjudicate UI
claims, requiring ES staff to be hired on a merit basis would permit
States to rely on them to process and adjudicate UI claims. Some
unions, advocacy organizations, think tanks, and a State employee
association commented that reinstating the merit-staffing requirement
in all States and realigning ES services with the UI program will
ensure that workers can continue to receive unbiased, high-quality
employment services and effective, qualified help in claiming UI
benefits during economic crises ``without the threat of partisan
political coercion hanging over them.''
Several unions, a State government agency, and a think tank agreed
with the Department's assessment that any value gained by allowing the
ES to be staffed at the local level is outweighed by the benefits of
aligning ES staffing with UI administration and adjudication, which
would allow ES staff to provide surge capacity for UI during times of
high need. As framed by one union, cross-training State merit ES staff
enhances the resiliency of UI service delivery. Citing the pandemic and
natural disaster emergencies (e.g., Hurricane Sandy) as the best
examples of the need for cross-training State merit ES staff to assist
UI claimants in periods of high demand, many commenters, including
unions, advocacy organizations, and think tanks, argued that, because
the frequency of such extreme events is likely to increase, alignment
of ES and UI staff is even more important. Several of these commenters
reported that during the pandemic, Great Recession, and recent natural
disasters, States have relied on State merit ES staff to support UI
work, which helped to address historic UI claims surges.
According to unions, advocacy organizations, think tanks, and a
State employee association, the U.S. experience with temporary
privatization of UI administration permitted by Congress during the
pandemic reinforces the importance of reinstating ES merit-staffing.
These commenters asserted that the temporary exemption from the
requirement that UI adjudicators be merit-staffed resulted in many
States contracting with private companies that hired low paid, poorly
trained non-State-merit staff to administer traditional and new
temporary UI programs. Citing a May 2022 working paper, these
commenters said that this use of non-State-merit staff led to high
turnover among contracted staff; corruption in the hiring of staff and
in job and training referrals and placements; and poor service and long
payment delays for claimants. A State employee association and a union
added that incomplete and deficient work by outsourced staff increased
the workload for State merit-staff UI adjudicators, who were forced to
correct vendor staff errors.
Further, unions, an advocacy organization, a think tank, and a
State employee association discussed a State audit of Michigan's UI
experience during the pandemic, which they asserted found that
insufficient worker onboarding and offboarding practices (e.g., only
one-fifth of workers completed required training before starting their
duties) resulted in a total of $3.8 million in UI fraud committed by
vendor staff; purchase order delays; conflicts and ethics violations;
and unsafe computer sanitization practices. A State employee
association and an advocacy organization added that the Michigan audit
also found that nearly half of the sampled vendor staff still had
access to the State's automated UI system long after they no longer
worked for the contractor, which the commenter said created unnecessary
risk to the data and systems. Citing the Michigan audit report, an
advocacy organization said that contractors also failed to comply with
criminal history background checks for their workers.
Also asserting that Michigan UI claimants in particular suffered
during the pandemic, an advocacy organization commented that hundreds
of claimants reported to legal advocates that they received little to
no help from the frontline staff who were hired to handle the surge of
claims during the pandemic. Asserting that non-merit UI workers hired
during the pandemic did not receive adequate training, unions and a
State employee association agreed with the Department's statement in
the NPRM that providing adequate training for UI adjudicators takes
several months to a year. A think tank commented that State UI offices
increasingly are using contractors for identity verification, which is
delaying benefits and creating backlogs for unemployed workers, which
is impacting individuals of color and their communities.
An advocacy organization and a private citizen commented that
cross-training ES merit staff would alleviate a lot of the pressure on
UI merit staff during crises. Citing a lag of increased UI
administrative funding at the start of economic downturns, another
advocacy organization argued that cross-training State merit ES staff
allows ES staff to fill this gap before the Department is able to
distribute additional funds to respond to increased administrative
needs.
A think tank commented that it has heard from a wide range of legal
aid and UI advocates that State UI systems are overwhelmed and fighting
cyber fraud due to staffing shortages. Citing a 2020 news article about
a Michigan UI agency employee committing fraud, an advocacy
organization argued that cross-training ES State merit staff to provide
UI services during surges--rather than relying on contractors or new
hires--could limit the risk of fraud and ensure the program is run with
high integrity and efficiency.
Some commenters, including unions, advocacy organizations, and
think tanks, remarked that merit-based State ES employees provide
professional, unbiased ES services to job seekers and employers and
help UI claimants navigate the job market and comply with work search
requirements to initiate and remain eligible for UI benefits.
Specifically, an advocacy organization commented that ES staff are
already familiar with the local worker populations and understand the
conditions on the ground. Because ES staff administer the work test to
ensure that UI claimants are able to work and are available for and
actively seeking work, which is a federally required condition of State
UI eligibility, a State employee association asserted that this
gatekeeper function makes the role of ES staff ``inherently
governmental.'' Citing increased mandatory UI work test duties imposed
over time, a private citizen argued that additional State merit ES
staff should be physically available in one-stop centers to assist the
UI component in a variety of expanded work test functions.
An advocacy organization argued that, to support a unified delivery
model in which job seekers can apply for UI benefits through the same
agency providing reemployment services, ES and UI programs should work
together to ensure that services are provided by conflict-free, public
service professionals, so that workers receiving UI benefits can find
suitable replacement jobs efficiently. Similarly, a private citizen
commented that required
[[Page 82683]]
merit-staffing for ES services may promote better coordination between
UI staff and ES staff, which is much needed. Commenting that the ES
program performs important labor exchange functions that connect
employers with qualified workers and help employees gain reemployment
more rapidly, a private citizen argued that the ES must be closely
involved with UI. A think tank argued that, as new technology will be
deployed over the next few years to address UI modernization, it is
critical that State level staff are career employees with decent pay
and benefits, which ``will also help ensure a more equitable UI system
for all workers and address the racial inequities.''
Asserting that allowing non-State employees in some States to
operate ES and UI services was not a wise policy practice, a private
citizen reasoned that deficient or hard-to-manipulate computer-based
registration, job finding and placement services, and claims processing
often result in frustration, leaving some jobless to abandon government
assistance, which erodes overall trust in government services. This
commenter concluded that the best way to reestablish the trust of job
seekers and UI claimants in the delivery of public services is to
improve the national standards of quality and professionalism in
staffing of State workforce agencies by hiring superior individuals
under merit standards.
Also expressing concern about non-State-merit ES staff causing
frustration for UI claimants, an advocacy organization argued that
cross-training ES State merit staff, and allowing them limited access
to UI claims information, could go a long way towards rebuilding these
relationships, and would provide claimants with the in-person access to
information that they want. Specifically, this commenter said that most
of its clients have limited access to technology and struggle to
navigate the UI technology system on their phones, and one-stop center
staff cannot help claimants with filing claims or navigating the online
portal. Therefore, the commenter remarked that cross-training ES staff
and allowing them to provide minimal UI support could help alleviate
claimant frustrations, provide better access to UI, and prevent many
mistakes that claimants make when filing that later lead to improper
payments. Finally, this commenter argued that, because the majority of
its clients who seek help at State one-stop centers are from
underserved populations, allowing ES State merit staff to provide basic
information about UI claim status and assist with navigating the online
systems would ensure greater equity in access to benefits.
A union, a State employee association, an advocacy organization,
and a private citizen argued that the history of the ES and UI programs
supports the NPRM's reliance on the ES-UI relationship and the
appropriateness of aligning these programs via the State merit-staffing
requirement. Specifically, a union and a State employee association
commented that these programs originated as intertwined prongs of the
New Deal response to mass unemployment and Congress subsequently
integrated the funding structure of ES and UI, tasked ES with
administering the UI work test, and encouraged the colocation of ES and
UI staff to support unified service delivery, all of which also bind
these programs together and support alignment.
In particular, because the UI program was created in the Social
Security Act (SSA) less than 2 years after passage of the Wagner-Peyser
Act, a private citizen stated that Congress developed the UI program
with full knowledge of the existing ES public labor exchanges. The
commenter described the origins of the UI statutory merit-staffing
requirement and asserted that this legislative history provides support
for the Department's linkage of UI and ES. In summary, according to
this commenter, the UI merit-staffing requirement was not in the
original SSA of 1935, even though the President's Committee that
designed the programs recommended that the selection of administrative
personnel for the program be on a merit basis. In 1938, the commenter
said, based on an initial UI program review by the Social Security
Board, a recommendation was made to require merit-staffing in the UI
program for all States, which was implemented by Congress in 1939,
while leaving early Federal administrative interpretations requiring
merit-staffing for the ES program in place. Therefore, this commenter
concluded that the linked historical background of ES and UI
demonstrates that the absence of an explicit merit-staffing requirement
in the Wagner-Peyser Act does not demonstrate that merit-staffing is
beyond the Secretary's authority, and the record of consistent use of
merit-staffing in both ES and UI programs supports the adoption of the
proposed merit-staffing requirement.
Asserting that the founders of the unemployment security system
felt strongly that ES and UI services should be administered by State
merit-staffed employees, a private citizen commented that, without
State merit-staff ES employees, the public character of the one-stop
center is ceded to private control, contrary to the intent of the
Wagner-Peyser Act. This commenter urged the Department to strengthen
its argument for uniform required State merit-staffing for ES services
by indicating that it is based on longstanding Department policy,
research findings, and relevant recent experience.
A union argued that aligning the staffing requirements of the ES
and UI programs would further facilitate their integration and promote
their joint aim of alleviating the deleterious effects of unemployment
and foster reemployment.
Response: The Department proposed to require that all States use
State merit staff to provide ES services due in part to the critical
need for alignment between the ES and UI programs. The Department
appreciates the comments supporting this alignment. It is vital that
the ES be administered so that services are delivered effectively and
equitably to UI beneficiaries and other ES customers. The Department's
proposal and justification was supported by these commenters, including
that States would be better equipped to handle surges in UI claims with
cross-trained ES staff. As the Department noted in the NPRM,
emergencies such as natural disasters are occurring with increased
frequency such that a need for surge capacity and cross-trained staff
is becoming increasingly necessary. The Department further noted that
historical data from 1971 through 2021 indicate regular and periodic
increases in the number of UI initial claims and first payments, for
which having ES staff who are already cross-trained or able to be
quickly cross-trained to assist UI claimants would be beneficial.
Requiring States to use State merit staff also helps to support
universal access to ES services and helps to ensure that services are
delivered by qualified, non-partisan personnel who are directly
accountable to the State. Such professionals would be required to meet
objective professional qualifications, be trained to assure high-
quality performance, and maintain certain standards of performance.
They would also be prohibited from using their official authority for
purposes of political interference, and States would be required to
assure that they are treated fairly and protected against partisan
political coercion.
The Department further agrees that UI and ES are two mutually
reinforcing elements of the Federal government's commitment to workers
and that the legislative history of the two programs
[[Page 82684]]
strengthens the Department's authority to require State merit ES staff.
The alignment of these two programs remains a core goal of the
Department, with the RESEA program's emphasis on connecting UI
claimants to Wagner-Peyser and WIOA services being the latest step
toward further integration.
Undue Prioritization of UI Services
Comment: Some commenters, including a Colorado State government
agency, a one-stop operator, private citizens, and an anonymous
commenter, critiqued the proposal over what they perceived as an undue
prioritization of UI services over ES and argued that in doing so, the
Department would be restricting vulnerable populations' access to
needed employment assistance programs because many individuals who
would benefit from ES are not eligible for UI. Several commenters,
including a Colorado local government employee and an anonymous
commenter, argued that the proposal presented ``discrimination and
civil rights issues'' in shifting focus from ES to UI services because
the latter does not provide a comprehensive set of services to enable
job seekers to find and secure a job. Several commenters, including a
Colorado State government agency and a trade association, similarly
discussed inequity and civil rights concerns associated with the
proposal ``prioritizing the delivery of UI services'' over ES, arguing
that this places increased importance on customers eligible for UI and
diminishes the availability of services for vulnerable populations
(such as communities of color, people with disabilities, people
experiencing homelessness, and self-employed or gig workers) who need
employment assistance but may be ineligible for UI.
A trade association remarked that shifting ES staff to UI services
would promote benefit payments over assisting customers with employment
and would cause the community to perceive AJCs as ``the unemployment
office'' rather than a site to receive employment services.
A one-stop center argued that prioritizing UI services over ES
would be harmful to employers. A private citizen stated that the
staffing status quo in Colorado enables an equitable delivery of UI and
ES services and cited data from 2021 about the numbers of people who
accessed such services in their area in asserting that 9,000 people
would receive ``subpar'' ES due to the proposal's undue prioritization
of UI.
A State government discussed challenges associated with a rapidly
changing labor market and encouraged the Department to keep flexible
staffing models in place, arguing that States need flexibility to
effectively deliver UI and reemployment services, in part due to the
decrease in Federal Wagner-Peyser Act funding ``over the past
decades.'' The commenter said reemployment services require a wide
range of ``tools, sites, and strategies'' and argued that staffing
flexibility helps some States deliver such services effectively. A
group of local government employees remarked that many of the
individuals served in their local area are not eligible for UI benefits
but need access to ES services. The commenter said such individuals
feel comfortable coming into a local office and expressed concern about
a disruption of the equitable and ``seamless'' delivery of services to
marginalized populations, citing an anecdotal example.
Many commenters asserted that it would be counterproductive to
require States to use State merit staff to provide ES services and
cross-train these employees to process UI claims.
Several commenters, including a Colorado State agency, a trade
association, and an advocacy organization, argued that shifting ES
staff to perform UI services would repurpose staff to perform duties
outside their scope of work, therefore hampering staff ability to
perform their main function. These commenters reasoned that ES staff
are hired for job coaching, customer support, and relationship building
while UI staff focus on short-term problem solving, further stating
that the misalignment of these skill sets will create more
accessibility problems for all.
Many commenters, including State agencies and an advocacy
organization, expressed concern that the proposed rule does not
consider the need for surging ES services during UI surges, further
questioning who will provide ES services when ES staff are re-assigned
to UI adjudication and claim processing. Some commenters, including an
association of State elected officials, a one-stop operator, and
others, agreed that the lack of staff performing ES services during UI
surges will lead to slower service overall. Relatedly, a few
commenters, including a one-stop center employee, a think tank, and an
anonymous commenter, argued that it is unrealistic to have ES staff
turn away from their job duties to handle UI claims as they already
have full workloads that can be difficult to keep up with. Several
commenters questioned whether ES staff would be relocated to UI offices
for training and for the provision of UI services during surges.
Some commenters, including a Colorado State government agency and a
trade association, argued that the pandemic created a rare economic
crisis, and that requiring nationwide State merit-staffing for ES
services is not the most efficient way to fix the UI surge issues
brought about by these extraordinary circumstances. Many other
commenters, including a Colorado State workforce development board and
a Colorado employer, expressed similar sentiments, agreeing that the
pandemic is a temporary outlier event, and that implementing these
changes will be less effective in supporting job seekers and UI
claimants at all other times. A local workforce development board
stated there was no compelling need nor sufficient rationale to require
State merit staff and asserted the proposal would ``void'' the ability
to innovate in its State.
A Colorado State agency, a Colorado workforce development board,
and a private citizen stated that the proposed rule would negatively
impact the quality of services to businesses. These commenters reasoned
that current local ES staff have experience serving businesses and
knowledge of the local economy, while any State merit staff that
replace them will not have these advantages or incentive to support
employers across multiple programs. The commenters further stated that
businesses will suffer during economic hardships because ES staff will
be diverted to focus on UI claims.
Two State government agencies recommended that the Department
provide more guidance to States about cross-training ES staff with UI
services to prepare for the next UI surge. These commenters expressed
concern that this responsibility will fall on the States without
direction from the agency on how to meet the Department's objective.
A State workforce development board and others expressed concern
that the proposed rule would have a disproportionate impact on rural
areas, as many States report centralized ES staff in urban areas. The
commenters anticipated the required change in staffing would bring
about an overall reduction in services, especially during UI surges.
Framing the proposed merit-staffing requirement as prioritizing UI
benefits recipients over all other populations, a one-stop operator
commented that, because data shows UI recipients do not represent
underserved populations, requiring nationwide merit-staffing for ES
services would supersede community and business needs to provide backup
for UI programs in times of need.
[[Page 82685]]
A few associations of workforce boards, a State workforce
development board, and a professional association stated that by
mandating the use of State merit staff for ES services, the proposed
rule would significantly limit the types of technology and tools
available to States in times of surging UI demand.
Also arguing that a uniform merit-staffing requirement would harm,
rather than assist, Colorado's workforce, a private citizen suggested
that the Department instead change the requirement that UI claims must
be processed by State merit staff. A think tank similarly argued that
the Department should support legislative efforts to create permanent
staffing flexibilities in both the ES and UI programs.
Many commenters from Michigan, Colorado, and Massachusetts
discussed how the local resource centers in their State were able to
pivot to UI surge support amid the pandemic to demonstrate the high
efficiency of their current systems. For example, several commenters
from Colorado, including a local government, a local workforce
development board, a trade association, and others, described how their
local staff successfully responded to the spike in phone calls related
to UI issues by creating a virtual call center that exclusively
answered UI questions, proving that they are able to handle these
services at a local level, particularly when unemployment agencies are
overwhelmed. Several commenters from Michigan, including one-stop
operators, one-stop center staff, and private citizens, stated that
local workforce development offices across the State were able to
leverage hundreds of staff to assist the unemployment agency in
responding to the UI claims they could not keep up with during the
pandemic, further requesting that Michigan be allowed to continue
utilizing non-State-merit staff to provide ES services. A few
commenters from Massachusetts, including a State government agency, a
local workforce development board, and a local elected official, stated
that the one-stop center staff in their State are trained on the
fundamental knowledge of unemployment, along with more in-depth
training for designated staff, all of which allows them to assist
customers with questions about their UI claims. These commenters
further discussed how their ES staff seamlessly transitioned to
assisting UI claimants during the pandemic without any disruption of
services.
Expressing concern that the proposed rule would result in reduced
services at local offices, some private citizens and an employer
expressed appreciation for ES staff helping them with job search and UI
claims process issues during periods of unemployment. Similarly, an
employer commented that they do not know what they would do without
Michigan Works! because they assist them and their employees with UI
benefits in their off season. Michigan one-stop center staff also said
that they help unemployed customers to navigate the UI system, with
some asserting that many UI claimants have challenges using a computer
and eliminating local services could escalate customer frustrations.
Response: The Department appreciates the concerns raised by
commenters, and agrees with the comments describing the importance of
assistance with UI, the ability to access that support, and the close
relationship between ES and UI. Similarly, in most of the States across
the country, ES State merit staff operate in AJCs and provide
assistance with job search, applying for UI benefits, and pivot during
surges. The Department proposed to require that States use State merit
staff to provide ES services due to the need for critical alignment
between the ES and UI programs and to help ensure that services are
delivered by qualified, non-partisan professionals accountable to the
State. While the Department believes it is vital for ES and UI to be
aligned, this final rule does not impose requirements on States to
cross-train or utilize ES staff for UI services. Many States already
cross-train and utilize ES staff for UI activities, and States with
prior issues within their UI program may benefit from having cross-
trained ES staff available when there are surges in demand for UI
claims. Aligning these programs should not negatively impact or
prioritize one program over the other. Rather, aligning the two
programs serves to increase consistency of service, as well as
capacity, for each. Further, a State merit-staffing requirement helps
to promote consistent training and accountability throughout the State
from one locality to another. The Department will provide technical
assistance to States that are interested in more closely aligning the
respective programs.
The Department additionally recognizes the reliance interests of
Colorado, Massachusetts, and Michigan, all of which were permitted by
the Department to use alternative staffing models beginning in the
1990s. Accordingly, this rule requires all States to use State merit
staff to deliver ES services, except for these three States using
longstanding alternative staffing models previously authorized by the
Department. These three States are permitted to continue using their
longstanding staffing models and must participate in any evaluation of
their delivery of ES services conducted by the Department.
The Department recognizes that there will be certain transition
costs to some States, which was included in the NPRM's regulatory
impact analysis. All States have 24 months to comply with the staffing
requirements.
Alignment With Other Programs
Comment: Several commenters, including a one-stop center employee
and an advocacy organization, expressed concern that the proposal would
disrupt the ``integrated service delivery model'' in their area and
would result in a siloed service delivery model to the detriment of
program beneficiaries.
Several commenters, including Michigan local governments, a
Michigan local elected official, State and local workforce development
boards, and a private citizen, encouraged alignment and integration
among programs including the Wagner-Peyser Act ES program, WIOA, the
Supplemental Nutrition Assistance Program (SNAP), Temporary Assistance
for Needy Families (TANF), and Trade Adjustment Assistance (TAA) and
expressed concern that the proposal would disrupt a ``streamlined''
service delivery model. A trade association remarked that Wagner-Peyser
Act funding allows Michigan Works! to leverage funds from other State,
Federal, and non-governmental programs to improve services for
individuals and businesses.
Many commenters, including Michigan and Colorado State elected
officials, Michigan and Delaware State government agencies, and
Michigan and Colorado local governments, argued that the rule would
eliminate States' ability to integrate the provision of Wagner-Peyser
Act-funded services with other workforce development and social support
services, such as WIOA and TANF, which would reduce efficiencies and
increase administrative costs in States that use flexible staffing
models. A one-stop operator requested that the Department reconsider
the proposal, arguing that the current flexibility afforded to States
has resulted in a more ``responsive'' workforce development system.
Some commenters, including a training provider, a commenter from
academia, and a one-stop center employee, warned that the rule would
jeopardize former demonstration States' other grant funding agreements
with the Department. Several commenters asserted that the proposal
would ``de-
[[Page 82686]]
couple'' services, funding, and practices that have been integrated as
a result of their State's demonstration status. The commenters
described the rule as ``outdated, inefficient, unnecessary, and overly
burdensome.''
Many commenters, including Michigan and Massachusetts State
government agencies, advocacy organizations, and trade associations,
argued that one significant benefit of the status quo flexibility in
staffing and use of funds in States operating flexible staffing models
is the ability of local ES staff to braid funds and integrate the
provision of Wagner-Peyser Act-funded services with other local
workforce development programs and social services, including WIOA and
TANF, which makes the services more efficient and reduces
administrative costs. An employer commented that flexible ES staffing
models like the Michigan Works! system are able to provide the most
cost-efficient results because they can leverage Federal, State, and
local resources; costs to operate job centers are shared with all
partners and programs; and because, at the local level, many
organizations provide ``in kind'' contributions of administrative
support, which reduces overall program costs.
Several commenters provided performance data from the Department's
website that demonstrates the success of Michigan's performance against
the national average and argued that the integrated workforce
development system in their State is ``transformational'' for both
employers and job seekers. Other commenters, including a trade
association, one-stop center staff, and private citizens, made similar
arguments that Michigan and Colorado are outpacing the national median
on performance metrics and has a low cost per participant. Also
asserting that Michigan has been a top performer in nearly every ES-
relevant metric, a private citizen questioned the need for the rule and
the proposal's ``streamlining or improving services'' assertion,
commenting that replacing 220 local workforce staff with 80 to 90 State
merit staff will hurt rural communities.
Several commenters stated that, in Michigan, alignment with local
workforce systems is critical in connecting job seekers with a range of
programs that support their ability to remain employed and minimize the
need for UI benefits.
An anonymous commenter said the integrated model in their area
allows offices to leverage resources, which in turn promotes higher
quality of services. A private citizen remarked that current staffing
model in Colorado has encouraged innovation and has led to the creation
of an integrated model of program administration, oversight, and
delivery. Several commenters, including a one-stop center employee,
faulted the proposal for favoring ``alignment of ES and UI staffing''
over the efficiencies associated with flexible staffing arrangements
and expressed concern that the proposal would result in the closure of
AJCs (ES offices) and reduced services for employers.
Some commenters, including a one-stop center employee, described
their experiences working for or with local service centers and
expressed concern about offering Wagner-Peyser Act and WIOA services in
different offices or sites and the disruption of access to a more all-
encompassing set of services. Some commenters, including a State
Workforce Development Board, a trade association, and private citizens,
remarked that the proposal could disrupt the WIOA one-stop service
delivery model because Employment Service (ES) and WIOA staff would not
be housed together. These commenters and others, including an employer
and a one-stop center employee, said this divided or siloed environment
was contrary to the ``vision and intent'' of WIOA.
A State employee association that supported the proposal argued
that ``restoring'' State merit-staffing requirements would be
beneficial for other programs unrelated to the UI system, such as the
employment infrastructure for veterans and the delivery of TAA services
for workers impacted by trade. The commenter referred to removal of the
merit-staffing requirement for delivering TAA services in the ``Trade
Adjustment Assistance for Workers'' final rule, 85 FR 51896 (Aug. 21,
2020), and urged the Department to also repeal that rule to ensure
State merit-staffing is the ``standard'' in States that may have used
staffing flexibility for TAA. A Colorado State government agency
similarly remarked that TAA services, which are staffed by county merit
staff in Colorado, would be adversely impacted by the proposal,
remarking that in 2021, TAA ``provided approximately $956,761 to local
areas'' to assist with staffing 15 full-time employees.
Conversely, a State workforce development board argued that WIOA's
title programs, and other programs under TANF and SNAP, are aligned to
work together in meeting diverse customers' needs and encouraged the
Department to maintain staffing flexibility for the Wagner-Peyser Act
ES program, RESEA, TAA, and other programs that benefit from alignment
with local workforce systems. A local workforce development board
stated that Colorado's ability to employ a flexible staffing model has
improved integration between WIOA and Wagner-Peyser Act ES services and
led to several positive outcomes, including successful employment of
customers, services rendered to many unique employers, significant
numbers of workshops and hiring events, and a strong overall return on
investment. A State government and other commenters similarly remarked
that the local merit-staffing model used in Colorado allows for
``seamless'' service integration and braiding of funding across
federally funded programs.
A State Workforce Development Board argued that the Department's
approach in the proposal undermines the ``key principle'' of State and
local flexibility for WIOA services and the Federal workforce system
more broadly. The commenter said the proposal would disrupt
efficiencies, discourage innovation, and undermine ``balance'' among
the Federal, State, and local partnerships that deliver WIOA and ES
services.
Response: The Department proposed to require that all States use
State merit staff to provide ES services due to the critical need for
alignment between the ES and UI programs. Aligning these programs
should not negatively impact or prioritize one program over the other.
It simply allows the State, in times of high need to be able to use ES
staff for certain UI activities should the State choose to do so. The
Department is not imposing additional requirements on the State for how
it uses the ES staff, but having cross-trained staff would better equip
the States to be able to shift resources in certain situations. The ES
and UI are already closely linked as they are both required partners
under WIOA, the UI program makes referrals to the ES for reemployment
services, and the ES program administers the work test for UI. WIOA
also requires the colocation of the ES with WIOA programs (20 CFR
652.202, 678.315) so the concerns regarding certain individuals no
longer having access to services is not supported by the information
provided. WIOA emphasizes integrated and streamlined service delivery.
The nature of ES services is such that ES staff provide basic and
individualized career services and make referrals to other programs, no
matter the staffing model used. The Department further believes the
keys to program success are the intensity of the integration of WIOA
and Wagner-Peyser services. Other States that use State merit staff
have been able
[[Page 82687]]
to innovate and implement the vision of WIOA. Several States have made
progress cross-training ES staff and UI staff. Additionally, States
have trained all AJC partners including ES staff to perform common
intake and make seamless referrals using a ``no wrong door'' approach
to case management irrespective of the Wagner-Peyser ES staffing model.
Three States using longstanding alternative staffing models presented
arguments in support of retaining those models, but the information
provided did not show a causal impact of the staffing model in these
States and performance. Accordingly, the Department declines to extend
staffing flexibility to all States. The Department reinstates a State
merit-staffing requirement for ES services with the exception of the
three States with longstanding reliance interests. These States are
required to participate in evaluation of their delivery of ES services
conducted by the Department, including review of services of other
States that participate, as necessary, to determine whether such models
are empirically supported.
Other Objections From States With Longstanding Reliance Interests
Comment: Many commenters, including a Michigan State elected
official, Colorado local governments, and an advocacy organization,
expressed opposition to the rule on the grounds that it would reduce
both State and local control over the provision of ES services in the
States that use flexible staffing models, and that in many cases this
will make the services less personal and less responsive to local
needs.
One anonymous commenter argued that as contractors and local
government employees, ES staff in States that use flexible staffing
models are currently insulated from State partisan politics; this
commenter reasoned that by transitioning ES staff to being entirely
State employees, they will be more subject to fluctuating partisan
demands.
Some commenters, including a Colorado State elected official, a
commenter from academia, and a Colorado local workforce development
board, warned that implementation of the proposed rule could trigger
lawsuits from affected counties and unions in States that use flexible
staffing models.
Response: The Department received new information in comments on
the NPRM from States with longstanding reliance interests and
determined that these States may continue to utilize their longstanding
alternative staffing models.
Reliance Interests of Other States
Comment: An association of State elected officials and a State
government agency stated that Missouri had been approved by the
Department as recently as summer 2021 to begin using non-State-merit
staff to provide Wagner-Peyser Act ES services, and that the State had
submitted its WIOA State Plan and that the State's local workforce
development boards have already budgeted and planned for Wagner-Peyser
Act funding based on this recent approval. As such, the commenters
asserted that rescinding the State's staffing flexibility would create
an unnecessary burden.
A State government agency commented that existing ES rules and the
Coronavirus Aid, Relief, and Economic Security Act (CARES Act) allowed
for a degree of staffing flexibility during the COVID-19 pandemic,
which enabled quicker and more cost-effective services for client needs
during the extraordinary economic circumstances of the pandemic.
A State government agency similarly stated that the current
staffing flexibility under the status quo allows for the more efficient
provision of ES services; the commenter asserted that rescinding this
flexibility will cause services to become less efficient.
Response: While the Department recognizes that any shift in
staffing requires transition, the transition for the three States with
decades of reliance would experience higher transition costs in
contracts, supervision adjustments, bargaining agreements, and IT
systems than those that have used alternative staffing for 2 years. As
demonstrated in the comments received, these three States have built
systems, developed partnerships, and established a service delivery
model that could be reversed only at significant cost to the State and
with significant harm to job seekers and employers. The expansion of
alternative staffing models to additional States occurred without
study, before the landscape-altering impact of the pandemic on the UI
and workforce system. The Department will evaluate ES services and
their staffing models before taking additional actions regarding the
use of alternative staffing for other States. Recognizing that some
States adopted a different staffing model under the 2020 Final Rule, as
discussed above, the Department is further providing 24 months of
transition time for any State that needs to adjust its staffing model
to adhere to the regulations.
Recommendations To Continue Demonstration State Status
Comment: Based on their objections to the proposal, including an
anticipated reduction in the quality and availability of ES in States
that would have to make major staffing changes to comply with the State
merit-staffing requirement, numerous commenters, including Colorado and
Michigan State elected officials, a Michigan State government agency,
and Colorado and Michigan local governments, urged the Department to
allow the former demonstration States to retain their current status
and the flexibility to provide ES services with local merit staff or to
otherwise entirely abandon the proposed rule change.
Another State government agency echoed this recommendation,
suggesting that the Department grant continuing exemptions to the
proposed rule to the former demonstration States, but not to any other
States.
Alternatively, a think tank suggested that, at a minimum, the
former demonstration States should be allowed to maintain their current
status until the end of the established performance period, and that
results from these States should be evaluated when considering if their
staffing flexibility model should be extended.
Several commenters, including one-stop operators, State and local
workforce development boards, a trade association, a Colorado local
government, and a Colorado State elected official, requested that the
Department permit their State to continue utilizing flexible staffing
models to deliver for Wagner-Peyser Act-funded ES services. A Michigan
one-stop operator and one-stop center employee argued that staffing
flexibility allows programs to provide ES services to customers,
including businesses and vulnerable populations such as youth,
refugees, and veterans, in the most efficient and effective manner
possible.
A Colorado State elected official asserted the loss of its ability
to provide ES services using a flexible staffing model would cause
costly disruptions to businesses and citizens. The commenter remarked
that its workforce development staffing model had bipartisan support in
the State Congress and that statewide stakeholders remain committed to
this ``nimble and agile'' workforce service delivery model. The
commenter further asserted that national organizations like the
National Association of State Workforce Agencies, the National
Association of Workforce Boards, and the National Association of
Counties support the
[[Page 82688]]
State's request to continue operating this model.
A Massachusetts local workforce development board did not challenge
the Department's ability to roll back the 2020 Final Rule providing
widespread staffing flexibility but opposed using the proposal to void
``waivers'' previously granted to the former demonstration States.
A Michigan training provider asserted the proposal would jeopardize
successful programs in States providing ES services using a flexible
staffing model, such as Michigan, if they are not ``exempted'' from the
State merit-staffing requirement. The commenter provided attachments
that, in their view, provide evidence that the workforce development
structure employed in the former demonstration States should instead be
the national standard.
A think tank suggested that the Department ``grandfather'' the
flexible staffing models for the former demonstration States because
they have been operating successfully for more than two decades, and
further suggested that the Department extend waivers for similar
staffing flexibility to other States.
Response: For reasons explained throughout this section, the
Department is allowing Colorado, Massachusetts, and Michigan to use the
same longstanding alternative staffing models that the Department has
allowed them to use since the 1990s. The Department is requiring these
three States to participate in in an evaluation to be conducted by the
Department. All other States are required to use State merit staff to
provide ES services.
Other Arguments Against Requiring State Merit Staff
Comment: A think tank argued that flexibility was more beneficial
for States than ``rigid rules'' and described how certain restrictions
hamper State workforce programs. The commenter cited the National
Association of Medicaid Directors' 2022 request for flexibility to hire
non-merit staff for processing Medicaid and SNAP renewals to ``handle
increased workloads from the fallout of COVID-19'' as an example of the
personnel challenges facing workforce and welfare agencies. Citing WIOA
provisions concerning the one-stop delivery system, the commenter said
that the issue of flexibility in workforce programs ``extends beyond
staffing models.'' The commenter stated that current law places
``handcuffs'' on SWAs, hampering how they can spend WIOA funds. For
example, the commenter stated that under WIOA, ``states' ability to
design pay-for-performance contracts based on job placement is limited
to non-federal funds and youth workforce services'' and that WIOA
restricts States' ability to use Federal funds related to work
requirements in welfare to solely Employment and Training programs
(arguing that WIOA funds should be able to be used to administer more
meaningful work requirements like the able-bodied adult-without-
dependent work requirements for SNAP). The commenter concluded that the
ES should be designed to move as many individuals as possible into
self-sufficiency by increasing their marketability in the labor market
and argued that staffing flexibility allows States to design ES
programs that accomplish these goals.
A one-stop operator in Texas remarked that while State merit-staff
employees are performing well, ``funding limitations have hampered the
ability to provide salary increases for many years.'' The commenter
stated that ``[w]hile employees are able to receive one-time, merit-
based pay, being in a merit-based system has, in fact, negatively
impacted retention and attraction of employees, which are key elements
in maintaining a quality staff.'' A one-stop center employee stated
that the proposal would cause Michigan to be non-compliant with a State
``One-Stop Operator statute.'' A Michigan one-stop center employee
asked how the proposed merit-staffing requirement will save the State
money, time, or resources.
A local government stated that the proposal would create an
unnecessary layer of bureaucracy and would disrupt an integrated
service model that meets the local community's needs. A one-stop
operator argued that the proposal would result in too few employees to
service job seekers and employers through Wagner-Peyser Act programs in
their State and expressed confusion as to how ``a few organizations''
in its State could express support for the proposal. The commenter
suspected that the proposal is meant to favor employers that provide
for union representation of employees and faulted a local union for
ceasing representation for a group of employees last year.
Some commenters, including a private citizen, a one-stop center
employee, a trade association, and an advocacy organization, remarked
that the former demonstration States successfully developed locally
based staffing models that work across budgetary and programmatic silos
to create a more integrated system providing higher quality services. A
professional association said Colorado's use of a flexible staffing
model to provide ES services has proven effective because staffing
flexibility allows local areas to react more quickly to local market
conditions. An employer remarked that delivering ES at the local level
produces optimally cost-efficient and effective results, and a Colorado
local government similarly argued that the proposal would lead to
inefficiencies and would disrupt a streamlined service delivery model.
An anonymous commenter similarly argued that separating local merit
WIOA staff and ES State merit staff would jeopardize the effectiveness
of the one-stop delivery model.
A Colorado local government asserted that increasing State control
over local ES offices would lose county workers' regional understanding
of local needs around ES, arguing that county input is essential to
avoid the ``disconnect'' that occurs in larger bureaucracies because
counties have unique needs and characteristics. A Michigan private
citizen remarked that State agencies, including the State UI agency,
come across as ``bureaucratic and impersonal'' and argued that State
agency leaders may not listen to local concerns due to their limited
local knowledge. Another Michigan private citizen preferred to continue
dealing with local ES staff and expressed concern about
``centralizing'' ES in their State's capitol. A State government agency
argued that ES staffing flexibility allows local workforce development
boards to staff offices appropriately based on the needs of individual
communities. The commenter said some communities would not need a
``full accompaniment'' of local and State merit staff and also
expressed concern about clients needing to engage with either local or
State staff based on the type of service they need, reasoning that such
an approach could make clients feel as though they are being ``ferried
around'' rather than establishing a relationship with a single point of
contact.
A Colorado one-stop operator remarked that providing ES services at
the local level allows for better integration of Federal, State, and
local programs and rejected the Department's assertion that local
government employees are treated less fairly or are more susceptible to
political influence, arguing that this argument was ``na[iuml]ve'' and
unsupported by evidence. A Colorado State government agency similarly
remarked that the Department's argument that ES services provided by
State merit staff would be ``quantitatively or qualitatively better''
[[Page 82689]]
than services delivered by county merit staff was not supported by
evidence and asserted that county merit staff are hired using objective
and transparent standards. The commenter stated that local merit staff
are accountable to their local county government to best position such
staff to provide services in their communities. A think tank agreed and
disputed the Department's argument that the adherence of non-State
entities to State policies is unobservable, reasoning that contracts
contain performance goals and metrics, and sometimes include financial
penalties for underperformance. The commenter also asserted that these
standards do not exist for ``merit'' staff.
Some commenters, including anonymous commenters and a Colorado
local government, remarked that the proposal would transfer duties from
local workers to a smaller group of State staff; the commenters
asserted this would result in considerable and challenging workloads
and diminished services for participants. A private citizen who
preferred local staffing for ES suggested that a possible compromise
could be to increase funding and add a State merit-staff employee to
each local office who would serve as a liaison for State programs and
services.
Several commenters stated that Colorado's current staffing model
allows for effective partnerships with community-based organizations
because local staff have developed strong relationships with such
organizations. The commenters expressed concern that the proposal would
disrupt or reduce services for community-based organizations. A private
citizen remarked that State merit staff would find it more difficult to
establish partnerships and navigate local resource networks, arguing
that local staff successfully participate in such networks through
community engagement.
Expressing opposition to the proposed merit-staffing requirement, a
private citizen and a few one-stop center staff quoted the proposed
Sec. 652.215(a) language (``The Secretary requires that the labor
exchange services described in Sec. 652.3 be provided by ES staff, as
defined in part 651 of this chapter.''), arguing that this change would
have a detrimental impact on the provision of ES services.
A Michigan one-stop center employee listed the minimum services
required by Sec. 652.3, including connecting job seekers with
employment opportunities and assisting employers with filling jobs, and
questioned how States would provide these ``robust'' services if they
face a major staffing reduction.
Response: The Department maintains that using State merit staff
helps to provide for high-quality, consistent, and politically neutral
ES services. State merit staff are held accountable for their work
through State-managed performance management plans and must meet
certain service benchmarks and milestones.
With respect to comments about local partnerships, the Department
notes that the vast majority of ES services nationwide are provided by
State merit staff who are able to establish working relationships with
community-based organizations. Additionally, the Department notes that
State WIOA funds can be used for an extremely broad set of activities,
including career and training services for individuals receiving public
benefits like SNAP. In multiple States with ES State merit staff, local
service delivery in AJCs provides services to a range of job seekers,
including those receiving public benefits.
Three States using longstanding alternative staffing models,
including local merit staff, presented arguments in support of
retaining those models, but the information provided did not show a
causal impact of the staffing model in these States and performance.
The Department acknowledges the strong reliance interests of these
three States--Colorado, Massachusetts, and Michigan--that the
Department has allowed to use alternative staffing models to administer
ES services since the 1990s. The Department recognizes the adverse
impacts a complete State merit-staffing requirement would have on these
three States relative to other States that began using alternative
staffing models following the 2020 Final Rule. Therefore, the
Department is allowing Colorado, Massachusetts, and Michigan to
continue using their longstanding alternative staffing models while
requiring their participation in an evaluation to be conducted by the
Department to determine whether alternative staffing models are
empirically supported.
The Department acknowledges comments regarding funding limitations
in the context of merit-staffing models. The Department has detailed
the cost burden associated with this final rule in Section VI. Wagner-
Peyser ES grant funding is provided annually to deliver employment
services. For reasons stated throughout this preamble, the Department
has determined that reinstating the requirement to provide ES services
using State merit staff will help to allow the States to provide
quality and consistent ES services in an accountable and transparent
manner as the Department undertakes an evaluation to determine whether
alternative staffing models are empirically supported.
The comments regarding WIOA pay-for-performance and work
requirements are out of scope and not addressed by this final rule.
D. Part 653--Services of the Wagner-Peyser Act Employment Service
System
Part 653 sets forth services of the Wagner-Peyser Act ES system
related to MSFWs. Subpart B provides the principal regulations of the
ES concerning the provision of services to MSFWs consistent with the
requirement that all services of the workforce development system be
available to all job seekers in an equitable fashion. This includes
ensuring MSFWs have access to these services in a way that meets their
unique needs. MSFWs must receive services on a basis that is
qualitatively equivalent and quantitatively proportionate to services
provided to non-MSFWs. The regulations in this subpart establish
special services to ensure MSFWs receive the full range of career
services, as defined in WIOA sec. 134(c)(2), 29 U.S.C. 3174(c)(2), and
contain requirements that SWAs establish a system to monitor their own
compliance with ES regulations governing services to MSFWs. Subpart F
sets forth regulations governing the ARS. It provides requirements for
SWA acceptance of intrastate and interstate job clearance orders that
seek U.S. workers to perform farmwork on a temporary, less than year-
round basis.
The Department proposed to revise various sections of the
regulatory text in both subparts and received comments about some of
its proposed revisions. In the discussion that follows, the Department
responds to these comments, grouping them by the provision that they
address and the order in which that provision appears within this part.
1. Subpart B--Services for Migrant and Seasonal Farmworkers (MSFWs)
Subpart B provides the principal regulations of the ES concerning
the provision of services to MSFWs. The Department proposed a number of
revisions to the regulatory text in this subpart to clarify and enhance
the outreach that SWAs provide to MSFWs and to strengthen the
monitoring that SMAs conduct pursuant to this part. The Department
received a number of comments that generally supported the proposed
revisions and its efforts to
[[Page 82690]]
strengthen the services that SWAs provide to MSFWs. Although the
feedback was primarily positive, several State and local agencies felt
the revised provisions were too prescriptive and urged the Department
to adopt a more flexible approach. The Department values and
appreciates the participation and input from these commenters and the
perspectives they have to offer. In the section-by-section discussion
below, the Department summarizes and responds to comments that address
the revisions it proposed to a particular section in this subpart.
After careful consideration of these comments, the Department generally
adopts the revisions it proposed to the regulatory text without change,
with exceptions as discussed below.
Section 653.100 Purpose and Scope of Subpart
The Department proposed to amend Sec. 653.100(a) to clarify that
the provision of services for MSFWs must be consistent with the
requirement that all services of the workforce development system be
available to all job seekers in an equitable and nondiscriminatory
fashion. The existing regulation states only that such services must be
made available in an equitable fashion. The Department proposed, and
this final rule adopts, an amendment to Sec. 653.100 to state such
services must be made available in both an equitable and
nondiscriminatory fashion. The addition of the phrase ``and
nondiscriminatory'' is intended to clarify that SWAs must not
discriminate against farmworkers either because they are farmworkers or
because of any characteristics protected under the nondiscrimination
and equal opportunity provisions of WIOA, which are contained in
section 188 of WIOA, 29 U.S.C. 3248, and the implementing regulations
at 29 CFR part 38. The requirements of section 188 of WIOA apply to ES
services because the ES is a required one-stop partner, and the
requirements of section 188 of WIOA apply to one-stop partners pursuant
to 29 CFR 38.2. The Department did not receive any comments on the
proposed addition of this language and adopts the revision as proposed.
Section 653.101 Provision of Services to Migrant and Seasonal
Farmworkers
The Department proposed to amend Sec. 653.101 by revising the
first sentence to clarify that the SWA is the primary recipient of
Wagner-Peyser Act funds and, therefore, is the entity responsible for
ensuring that ES staff offer MSFWs the full range of career and
supportive services. As the Department explained in the NPRM, it is
ultimately incumbent upon the SWA, as the Wagner-Peyser Act grantee, to
ensure ES staff at one-stop centers are offering and providing ES
services to MSFWs in an appropriate manner. The Department also
proposed to replace the requirement for one-stop centers to consider
and be sensitive to the preferences, needs, and skills of individual
MSFWs and the availability of job and training opportunities with a
requirement that SWAs ensure ES staff at one-stop centers tailor the
provision of ES services to MSFWs in a way that accounts for their
preferences, needs, skills, and the availability of job and training
opportunities. The Department proposed this revision to ensure MSFWs
are able to participate in the ES and, similar to the revision in the
first sentence, to clarify that the SWA is responsible for ensuring
compliance with this requirement. The Department received a few
comments on the proposed revisions in this section. As discussed below,
the Department has not made any changes to the regulatory text in
response to these comments and adopts the revisions as proposed.
Comment: The Department received numerous comments from individuals
and entities in Michigan explaining that under Michigan's current
service delivery model, local ES staff provide MSFWs the full range of
career and supportive services, benefits and protections, and job and
training referral services that they provide to non-MSFWs. Some of
these commenters noted that under Michigan's current model, the SWA
ensures Wagner-Peyser funded staff provide the full range of career
services to MSFWs by providing staff training and conducting one-stop
center reviews to ensure compliance. These commenters asserted that
while Michigan has historically made ES services available to all job
seekers (including MSFWs) in an equitable and nondiscriminatory
fashion, the proposed rule would have a chilling effect on their access
to services by making fewer offices and staff available to help them.
Similarly, a local government agency in Colorado, which opposed the
proposed State merit-staffing requirement, discussed its use of local
staff to provide MSFWs with equitable ES services that it stated are
innovative, personal, and available in multiple languages, and to offer
their State's highest level of outreach to MSFWs.
Response: As discussed in section III above, the Department has
decided not to apply the proposed State merit-staffing requirement to
several States, including Michigan and Colorado, that have developed
strong reliance interests in providing ES services through longstanding
alternative staffing models. Because this final rule will permit
Michigan and Colorado to continue to provide ES services in accordance
with each State's longstanding alternative staffing model, it should
not result in the ``chilling effect'' that commenters from Michigan
feared or impact the services that local staff in Colorado are
currently providing to MSFWs.
Moreover, the Department notes that SWAs, as required one-stop
partners, must ensure individual customers are served based on
individual needs, including MSFWs. See 20 CFR 678.425(b). The final
rule would, consistent with this requirement, clarify that SWAs are
responsible for ensuring that ES staff at one-stop centers tailor
services to meet the particular needs of MSFWs. While some States may
already meet this requirement, as asserted in the comments described
above, others may not. The revision makes it clear that Wagner-Peyser
Act funded staff must serve MSFWs based on their individual needs. In
addition, this revision will complement the MSFW-specific staffing
requirements in Sec. Sec. 653.107(a)(3) and 653.111.
It is particularly important to consider the particular needs of
MSFWs, because MSFW job seekers may face multiple barriers to
employment for which individualized career services are warranted. In
implementing this requirement, SWAs must take care to ensure MSFWs are
offered appropriate services based on their particular workforce
interests (e.g., referral to jobs they may want or need to meet their
employment-related goals and not only positions involving farmwork).
Section 653.102 Job Information
The Department proposed several revisions to the text of existing
Sec. 653.102. First, the Department proposed to revise the third
sentence of Sec. 653.102 to clarify that the SWA is the entity
responsible for ensuring that ES staff assist MSFWs to access job order
information, for the same rationale as similar changes the Department
is making to Sec. 653.101, as described above. Second, the Department
proposed to remove the word ``adequate'' as a modifier to the phrase
``assistance to MSFWs,'' in order to remove any perceived subjectivity
and clarify that a SWA meets its obligation to assist MSFWs by
complying with the requirements in parts 653 and 658. Finally, the
Department proposed to remove the final sentence of Sec. 653.102,
which stated that in designated significant MSFW multilingual offices,
assistance with accessing job order
[[Page 82691]]
information must be provided to MSFWs in their native language whenever
requested or necessary. As the Department explained in the NPRM, this
would align language access requirements in the ES regulations with
those required by WIOA sec. 188 and its implementing regulations at 29
CFR part 38, because language access requirements apply to individuals
with LEP regardless of through which office they seek ES services. The
Department received one comment on this provision. For the reasons
discussed below, the Department has not made any changes to the
proposed regulatory text and adopts it as proposed.
Comment: The Department received a comment from a farmworker
advocacy organization that generally supported the Department's
proposal to clarify language access requirements throughout part 653,
but with some reservations. As relevant here, this commenter opposed
the Department's proposal to remove the requirement for MSFW
multilingual offices to provide MSFWs access to job order information
in their native language whenever requested or necessary. The commenter
suggested that the Department take additional steps to ensure
individuals with LEP are able to access and engage with ES services and
asserted that SWAs should ensure clearance orders are translated to
Spanish and other major languages in the area so that all workers are
aware of their rights and able to access and review clearance orders in
their native language. According to these organizations, such a
requirement would align with the practices of certain SWAs that already
translate or require submission of translated clearance orders and help
to fulfill the Department's language access obligations under Executive
Order (E.O.) 13166, in addition to bolstering compliance with the
existing regulatory requirement at 20 CFR 655.122(q) that all H-2A
workers and workers in corresponding employment receive a copy of the
work contract ``in a language understood by the worker.'' Finally, they
noted that English-only clearance orders have presented particular
barriers for U.S. farmworkers in Puerto Rico, where some local SWA
officials have limited English ability and, without translations, are
unable to refer workers to available positions elsewhere in the United
States.
Response: The Department acknowledges the comment that suggested
the regulation should specify that clearance orders should be
translated into Spanish and other major languages in the area. However,
the Department reiterates that 29 CFR 38.9 spells out the applicable
language access requirements more comprehensively, including the
obligations to translate vital information (as defined at 29 CFR
28.4(ttt)) that appears in written materials into languages spoken by a
significant number or portion of the population eligible to be served,
or likely to be encountered, and to make the translations readily
available in hard copy or electronically. The regulation at 29 CFR 38.9
also imposes an obligation to take reasonable steps to ensure
meaningful access to each individual with LEP served or encountered,
including providing oral interpretation or written translation of
materials, in the appropriate non-English languages, so that
individuals with LEP are effectively informed about and able to
participate in the program or activity. Furthermore, once ES staff
becomes aware of the non-English preferred language of an individual
with LEP, the ES staff must convey vital information to that individual
in their preferred language.
The Department adopts the language as proposed in the NPRM and will
provide guidance and technical assistance as needed.
Section 653.103 Process for Migrant and Seasonal Farmworkers To
Participate in Workforce Development
The Department proposed to make several revisions to Sec. 653.103.
First, the Department proposed to revise the requirement in paragraph
(a) for one-stop centers to determine whether participants, as defined
at Sec. 651.10, are MSFWs. As revised, this section would replace
``one-stop center'' with ``ES office,'' and it would require ES offices
to also determine whether reportable individuals, as defined at Sec.
651.10, are MSFWs.
Second, in Sec. 653.103(b), the Department proposed to replace the
existing provision requiring all SWAs to ensure that MSFWs who are
English-language learners receive, free of charge, the language
assistance necessary to afford them meaningful access to the programs,
services, and information offered by the one-stop centers with a new
provision clarifying that all SWAs are required to comply with the
language access and assistance requirements at 29 CFR 38.9 with regard
to all individuals with LEP, including MSFWs who are LEP individuals,
as defined at 29 CFR 38.4(hh). This compliance includes ensuring ES
staff comply with these language access and assistance requirements. In
the NPRM, the Department explained that this would align the language
access requirements for MSFWs with language access requirements for all
individuals with LEP pursuant to 29 CFR 38.9, and it would help to
ensure all individuals with LEP, including MSFWs, are provided
meaningful access to ES services.
Lastly, the Department proposed to remove the specific requirement
in Sec. 653.103(c) for one-stop centers to provide MSFWs a list of
available career and supportive services ``in their native language.''
This, too, would align with the proposed revisions to replace the
various specific language access requirements in this part with
reference to the comprehensive requirements applicable to all
individuals with LEP in 29 CFR 38.9.
The Department received comments concerning each of these proposed
revisions. For the reasons discussed below, the Department has not made
any changes to the proposed regulatory text and adopts it as proposed.
Comment: The Department received several comments from individuals
and entities in Michigan that reported Michigan's ES offices are
prepared to implement the new requirement to determine whether
reportable individuals are MSFWs. Another State agency opposed the
proposed requirement for States to determine whether reportable
individuals are MSFWs, as defined at Sec. 651.10. The State agency
disputed the value of collecting this information, asserting it had
previously collected information from reportable individuals to
determine whether they were MSFWs and found it was inaccurate, because
it was based on self-service registrations that were not reviewed by
staff for accuracy unless the self-registrant sought participant-level
services. This State agency estimated that, if the proposed requirement
is adopted, it would cost $30,000 to $50,000 to update its IT systems
to track the MSFW-status of reportable individuals, and it asked the
Department to provide additional funding to cover these costs.
Response: The Department appreciates the commenter's concern
regarding the accuracy of self-reported data. While the Department
acknowledges that there may be errors in classification determinations
based on self-reported information that are made without assistance
from staff in the one-stop center, it believes this risk could largely
be addressed if SWAs carefully tailor the questions that they pose to
self-registrants so that the answers self-registrants provide are more
likely to elicit accurate classification determinations. The Department
expects that some States may need to revise their current
[[Page 82692]]
information collection (IC) practices and/or make changes to existing
IT systems to collect this information from reportable individuals.
These costs are allowable under a State's Wagner-Peyser ES grant, and
the Department has accounted for them in the regulatory impact and IC
analyses provided in sections VI.A and VI.C, respectively, below. The
Department does not take lightly the changes that States must make to
processes and systems to collect information about participants or
reportable individuals, but believes that the value of collecting this
data outweighs the estimated burden that SWAs may incur to collect it.
Collecting data about participant and reportable individual
characteristics, particularly related to populations that have been
historically underserved, is an important tool for measuring progress
in providing equal opportunity. In this case, collecting MSFW status
will help the ES to identify all MSFWs who engage in the ES and the
degree of their engagement. To ensure data on the MSFW status of
reportable individuals is accurate and used appropriately, Sec.
653.109(e) will require SWAs to periodically verify data collected
under this section, take necessary steps to ensure its validity, and
submit the data for verification to the Department, as directed by the
Department.
Comment: The Department received comments from numerous entities
and individuals in Michigan that asserted the costs their State incurs
to comply with language access and assistance requirements would
increase if the final rule requires Michigan to change its longstanding
staffing model to comply with a State merit-staffing requirement,
because if the Department were to adopt this requirement, one-stop
centers in Michigan could no longer rely on multilingual local staff
across an array of workforce programs to provide ES services.
Response: As discussed in section V.C.2 above, this final rule will
allow several States, including Michigan, to continue to provide ES
services in accordance with their longstanding alternative staffing
arrangements. Because this change resolves the circumstances about
which the commenters were concerned, this final rule should not impact
Michigan's cost of compliance with language access requirements for the
reasons that these commenters feared.
Comment: A farmworker advocacy organization largely supported the
Department's proposed revisions to align the language access
requirements in part 653 with the requirements in 29 CFR 38.9 that
apply to all individuals with LEP, but with some reservations. This
commenter expressed concern that removing the phrase ``in their native
language'' from Sec. 653.103(c) could create confusion about a SWA's
language access obligations and recommended retaining this language in
the regulation for clarity, rather than simply relying on the new
provision in Sec. 653.103(b), which clarifies that SWAs must comply
with the language access requirements in 29 CFR 38.9.
Response: The Department recognizes that language access is crucial
for individuals with LEP and is revising Sec. 653.103 to clarify that
SWAs must comply with the language access requirements in 29 CFR 38.9
when providing Wagner-Peyser ES services to MSFWs. The Department
disagrees with the commenter's assertion that it is necessary to retain
a specific requirement in this section for one-stop centers to provide
MSFWs a list of available career and supportive services ``in their
native language.'' As explained above, 29 CFR 38.9 spells out the
language access requirements that apply comprehensively, including the
obligations to translate vital information in written materials and to
convey vital information to individuals with LEP in their preferred
languages once the one-stop center becomes aware of the individuals'
non-English preferred languages.
The Department therefore adopts the changes to this section as
proposed and will provide guidance and technical assistance as needed.
Section 653.107 Outreach Responsibilities and Agricultural Outreach
Plan
Section 653.107 governs the outreach that SWAs must conduct to
ensure that MSFWs receive ES services that are qualitatively equivalent
and quantitatively proportionate to the services that the SWA offers
and provides to other job seekers. The migrant and seasonal nature of
the farmwork that MSFWs perform presents numerous challenges to the
effective provision of services to this subpopulation. Accordingly, the
Department has historically required SWAs to conduct outreach to MSFWs
to ensure that the services they receive are qualitatively equivalent
and quantitatively proportionate to the services offered to other job
seekers. The Department proposed revisions to the regulatory text
throughout Sec. 653.107 to further prescribe the outreach that SWAs
must conduct under this section. These revisions and the comments the
Department received about them, as well as the Department's responses,
are discussed below in accordance with the paragraph in which they
appear in the regulatory text.
Section 653.107(a)
The Department proposed to strengthen SWA outreach by making a
number of revisions to the regulatory text in Sec. 653.107(a). Among
other things, the proposed revisions emphasize the year-round nature of
outreach work; specify that full-time outreach staff may not be
assigned to duties other than the outreach responsibilities described
in Sec. 653.107(b); provide a standard by which to determine whether a
SWA employs an adequate number of outreach staff; and place additional
emphasis on the background and training that outreach staff must have
in order to successfully perform their duties. A detailed description
of the revisions proposed in each subordinate paragraph follows.
First, the Department proposed to amend Sec. 653.107(a)(1) in
several ways to emphasize that outreach work must be performed only by
outreach staff and that outreach staff in all States must conduct
outreach year-round. Specifically, the Department proposed to replace
the first sentence of paragraph (a)(1) in the existing regulation--
which required each SWA to provide an adequate number of outreach staff
to conduct MSFW outreach in their service areas--with a requirement for
each SWA to ensure that outreach staff conduct the outreach
responsibilities described in paragraph (b) of this section on an
ongoing basis. The Department proposed this change to clarify that
outreach staff in all States must be employed year-round and perform
the outreach activities described in Sec. 653.107(b) on an ongoing
basis. The Department did not propose to remove the requirement for a
SWA to provide an adequate number of outreach staff, but rather,
proposed to relocate this requirement to paragraph (a)(4), and to
revise this requirement so that it specifies a means to measure whether
a SWA employs an adequate number of outreach staff (discussed further
below with the proposed changes to paragraph (a)(4)). The Department
further proposed to prohibit a SWA from relying on the outreach
activities conducted by NFJP grant recipients (i.e., recipients of
grants awarded under WIOA title I sec. 167) to substitute for the
outreach responsibilities that outreach staff must conduct under this
section. In particular, the Department proposed to revise the second
sentence of paragraph (a)(1)--which required SMAs and outreach staff to
coordinate their outreach efforts with WIOA title I
[[Page 82693]]
sec. 167 grantees--to instead require that SMAs and outreach staff
coordinate their activities with WIOA title I sec. 167 grantees. The
Department additionally proposed to include a new sentence at the end
of this paragraph to make clear that a SWA cannot rely on the
activities of NFJP grantees as a substitute for SWA outreach
responsibilities. Taken together, these revisions would require a SWA
to coordinate their outreach activities with the activities of NFJP
grantees in their State (i.e., SWAs and NFJP grantees would have to
work together to strengthen their respective services) but prohibit the
SWA from relying on activities of NFJP grantees as a substitute for the
outreach responsibilities that outreach staff must conduct under this
section.
Second, the Department proposed to revise Sec. 653.107(a)(2)(ii)
so that SWAs in all States will be required to conduct thorough
outreach efforts with extensive follow-up activities. In particular,
the Department proposed to amend the existing regulation--which
required SWAs in supply States to conduct thorough outreach efforts
with extensive follow-up--to instead require that SWAs in all States
conduct thorough outreach efforts with extensive follow-up, and to add
language specifying that extensive follow-up consists of the activities
identified in paragraph (b)(5) of this section.
Third, the Department proposed revisions to Sec. 653.107(a)(3) to
operationalize the proposed merit State merit-staffing requirement for
outreach staff and strengthen the process by which SWAs hire and assign
outreach staff. In particular, the Department proposed to amend the
language and structure of this paragraph to make clear that the SWA is
responsible for directly hiring outreach staff and to specify the
actions that a SWA must take when hiring or assigning outreach staff.
The proposed revisions would require a SWA to not only ``seek''
qualified candidates with certain characteristics when hiring or
assigning outreach staff, but to also ``place a strong emphasis on
hiring and assigning'' such candidates. To increase the likelihood that
SWAs will employ candidates who meet the required criteria, the
Department further proposed to add a new paragraph at Sec.
653.107(a)(3)(ii) that would require a SWA to inform farmworker
organizations and other organizations with expertise concerning MSFWs
of outreach staff job openings and encourage such organizations to
refer qualified applicants to apply for the opening.
Fourth and finally, the Department proposed to make several changes
in Sec. 653.107(a)(4) that would bolster outreach staffing
requirements. In particular, the Department proposed to move the first
sentence in paragraph (a)(1) of the existing regulation--which required
each SWA to provide an adequate number of outreach staff--to the
beginning of paragraph (a)(4) and to amend this sentence so that it
would require each SWA to employ (as opposed to provide) an adequate
number of outreach staff to conduct MSFW outreach in each area of the
State to contact a majority of MSFWs in all of the SWA's service areas
annually. The revisions to this sentence would make clear each SWA must
employ outreach staff to perform the outreach required by this section
and provide a measurable means of determining whether the number of
outreach staff a SWA employs is adequate. They would also ensure that
each SWA conducts outreach in all areas of the State, and not only
certain service areas (e.g., only those service areas with significant
MSFW one-stop centers). In addition, the Department proposed to add a
sentence in paragraph (a)(4) that specifies full-time outreach staff
must devote 100 percent of their time to the outreach responsibilities
described in Sec. 653.107(b). Finally, the Department proposed adding
another sentence to require that SWA outreach staffing levels align
with and be supported by the estimated number of MSFWs in the State and
the MSFW activity in the State, as demonstrated in the State's
Agricultural Outreach Plan (AOP).
The Department received numerous comments about the changes it
proposed, as discussed in detail below. After careful consideration of
these comments, the Department largely adopts the proposed regulatory
text with minor revisions.
First, this final rule modifies the proposed revisions to Sec.
653.107(a)(1) to replace the phrase ``SWA Administrators'' with the
phrase ``State Administrators'' in the second sentence of that
paragraph. The Department is making this change because Sec. 651.10
defines the term State Administrator for purposes of the Wagner-Peyser
regulations and does not define the term SWA Administrator.
Second, this final rule modifies the proposed revisions to Sec.
653.107(a)(3) and (4) to account for changes to the proposed State
merit-staffing requirement adopted in this final rule. Specifically, as
adopted in this final rule, Sec. 652.215 will generally require States
to deliver the services and activities under this part using State
merit-staff employees, but Sec. 652.215(b) will allow the three States
authorized to use alternative staffing models prior to February 5,
2020, to use an alternative staffing model to the extent the Department
authorized that State to use an alternative staffing model prior to
February 5, 2020. To account for the fact that in these three States,
the SWA may not be the entity directly hiring outreach staff, the
Department modified the proposed regulatory text for Sec.
653.107(a)(3). The Department is adopting text in this paragraph that
clearly requires a SWA to ensure that outreach staff are sought and
hired or assigned in the manner that this regulation requires. The
Department made similar revisions to the proposed regulatory text for
Sec. 653.107(a)(4). Instead of stating that the SWA must employ an
adequate number of outreach staff, as proposed, this final rule
requires a SWA to ensure an adequate number of outreach staff are
employed in accordance with the requirements in this paragraph.
Notably, these revisions are intended to accommodate only those
rare instances in which a State may use an alternative staffing model
under Sec. 652.215(b). Because the State merit-staffing requirement
adopted in Sec. 652.215(a) applies to the services and activities
performed by outreach staff under Sec. 653.107, this final rule
requires SWAs to directly hire or assign State merit staff to outreach
staff positions in all but a very limited number of situations.
Third, as explained in further detail below, the Department is
modifying the proposed regulatory text for Sec. 653.107(a)(4) to
clarify the manner in which SWAs must determine whether the number of
outreach staff employed in their State is adequate. As adopted in this
final rule, Sec. 653.107(a)(4) requires each SWA to ensure that there
are an adequate number of outreach staff employed in the State to
conduct MSFW outreach in each service area of the State and to contact
a majority of MSFWs in the State annually.
General Comments
Many commenters expressed general support for the Department's
proposal. For example, a farmworker advocacy organization stated the
proposed changes would ensure that SWAs once again provide adequate
outreach services to MSFWs. Another farmworker advocacy organization
noted MSFW outreach would be improved by underscoring that outreach is
a full-time job that deserves priority and which should not be combined
with other functions. A number of other
[[Page 82694]]
commenters, including several unions, likewise supported the proposed
rule's focus on improving outreach to MSFWs. The Department also
received comments from several State government agencies that expressed
about the impact of the proposed revisions and urged the Department to
adopt a more flexible approach. The Department values the input and
perspectives that commenters shared and has thoroughly considered their
concerns and recommendations. A summary of the specific issues and
concerns raised, and the Department's response, follows.
NFJP Activities
Comment: A farmworker advocacy organization supported the
Department's approach to improve outreach by strengthening staffing
requirements, including the proposal to amend Sec. 653.107(a)(1) to
specify that NFJP grantee activities do not fulfill the SWA's outreach
obligations under Sec. 653.107. This commenter asserted that the
proposed revisions represented an important improvement, and noted its
staff had witnessed failed outreach and ineffective services provided
by part-time and contract staff in many of the States where the
organization serves farmworkers. Another commenter, a State government
agency, reported that it has procedures in place to collaborate with
its NFJP partner to conduct joint outreach. However, it was not clear
whether the joint outreach this commenter referenced would be conducted
alongside outreach staff employed by the SWA, as required by this final
rule, or in lieu of outreach conducted by ES staff. In addition to
joint outreach with the NFJP, the commenter said its staff make other
contacts.
Response: The Department appreciates the views that commenters
shared about this proposal. The Department agrees that MSFW outreach
will be more effective if it is performed by outreach staff who are not
expected to perform other functions. This is partly achieved by
ensuring there is dedicated outreach staff to perform the outreach
activities required by Sec. 653.107 and informing SWAs that they may
not rely on outreach activities of NFJP grantees to substitute for the
outreach that these regulations require. It was not clear whether the
State government agency that reported it has procedures in place to
conduct joint outreach with its NFJP partner has been conducting this
joint outreach in a manner that would comply with this final rule.
Under this final rule, Sec. 653.107(a)(1) will require a SWA to
coordinate outreach with the activities of NFJP grantees, and it will
permit a SWA to conduct joint outreach with NFJP grantees. But it will
not permit a SWA to rely on the activities of an NFJP grantee to
satisfy the MSFW outreach requirements set forth in Sec. 653.107. The
Department has decided to adopt this rule because a SWA's
responsibility to conduct outreach to MSFWs under Sec. 653.107 differs
in purpose and scope from the recruitment activities of NFJP grantees.
The activities of NFJP grantees differ from the responsibilities of
outreach staff under this section, because Sec. 653.107(b) requires
outreach staff to perform a number of specific tasks, such as provide
MSFWs certain information (e.g., a basic summary of farmworker rights,
information about services available at the local one-stop center, the
ES and Employment-Related Law Complaint System, and organizations that
serve MSFWs in the area) and offer to directly provide access to
certain ES services onsite. Accordingly, the final rule adopts the
revisions to Sec. 653.501(a)(1) as proposed.
Hiring and Assignment of Outreach Staff
Comment: A Delaware State government agency discussed its use of a
contractor to provide outreach to MSFWs, arguing that this approach
enabled it to significantly increase its outreach to MSFWs. Stating
that privatizing the role allowed it to offer competitive pay, attract
qualified candidates, and fill the job quickly, the commenter asked the
Department for an exemption from the merit-staffing requirement for
this outreach position so that a contractor can continue to hold it.
Response: The Department appreciates this commenter's feedback
regarding outreach staffing. However, the Department addressed the
benefits of State merit staff, including using State merit staff for
MSFW outreach, in earlier sections of this preamble, specifically
stating that the Department is adopting the proposed State merit-
staffing requirement as a generally reliable method to ensure quality
and consistency in ES delivery. Aside from allowing the three States to
use their alternative staffing models in place as of February 5, 2020,
the Department is not permitting further exceptions to the merit-
staffing requirement discussed above.
Comment: The Department received several comments related to its
proposal to revise the requirements governing the hiring or assignment
of outreach staff in Sec. 653.107(a)(3). A farmworker advocacy
organization supported the Department's proposal to strengthen the
hiring process for outreach staff, particularly the proposed
requirement for SWAs to inform farmworker organizations in their States
about job openings, noting such a requirement would help SWAs identify
candidates who possess cultural competence and develop broad networks
within farmworker communities.
Several commenters from Colorado, including a Colorado State
government agency, a State workforce development board, and a trade
association, expressed concern that if the Department adopted the
proposed rule, it would require Colorado to employ new outreach staff
and cross-train them to perform UI services. These commenters argued
that it would be more difficult to backfill outreach positions
currently held by county merit staff, as the proposed rule would
require, if the Department also adopted revisions that raised the
qualifications for hiring or assigning ES staff to outreach staff
positions. As discussed below, this concern appeared to be based on
these commenters' mistaken understanding that the proposed revisions
would raise the qualifications for outreach staff positions.
Another State government agency opposed the proposed changes to the
outreach staffing requirements in Sec. 653.107(a)(3) based on a
similar misunderstanding that the proposed revisions would increase the
qualifications required of MSFW outreach staff. This State agency
maintained that there was no need to expand current requirements, which
it asserted allow the State to meet the needs of the program while
maintaining flexibility in a tight labor market. According to this
State agency, it is increasingly difficult to find applicants who are
from MSFW backgrounds or who have substantial work experience in
farmworker activities in a tight labor market, and many individuals
already employed in outreach, compliance, and monitoring positions
outside of MSFW or farmwork possess the necessary skillset and
transferable skills.
A different State government agency agreed with the Department that
SWAs should employ outreach staff who meet relevant criteria, but it
noted the difficulty that its program managers at significant MSFW one-
stop centers have faced when trying to hire qualified outreach staff
who meet all requirements, which it said has resulted in program
managers hiring outreach staff who are bilingual but do not necessarily
have experience working with farmworkers.
[[Page 82695]]
Response: The Department appreciates the feedback it received from
these commenters. As discussed in section V.C.2 above, this final rule
will permit three States, including Colorado, to provide ES services in
accordance with their longstanding alternative staffing arrangements.
This revision to the proposed State merit-staffing requirement should
resolve any concerns raised by commenters from Colorado regarding the
impact that such a requirement would have on their State's ability to
serve MSFWs. As relevant here, this final rule will not require
Colorado to replace its county merit staff with State merit staff.
Moreover, neither the proposed rule nor this rule require any State to
cross-train ES staff to provide UI services.
Several commenters mistakenly believed that the proposed revisions
would increase the qualifications of the individuals who SWAs must seek
when hiring or assigning outreach staff. The Department did not propose
to change the type of characteristics that SWAs must seek among
qualified candidates when hiring or assigning outreach staff. The
existing regulation at Sec. 653.107(a)(3) already requires SWAs to
seek qualified candidates who speak the language of a significant
proportion of the MSFW population in the State and who are from MSFW
backgrounds or who have substantial work experience in farmworker
activities. Rather, the Department proposed to require SWAs not only
seek individuals with these characteristics, but also place a strong
emphasis on hiring and assigning such individuals. The Department has
long required SWAs to seek out individuals who possess similar
characteristics when hiring or assigning ES staff to outreach duties.
Nevertheless, the Department has observed that SWAs commonly assign
existing staff to fill outreach staff vacancies, without seeking
qualified candidates who speak the language of a significant proportion
of the State MSFW population and who are from MSFW backgrounds or have
substantial work experience in farmworker activities. The Department is
concerned that assigning individuals who do not possess these
characteristics to outreach staff positions may contribute to low MSFW
engagement in the ES program. Individuals who do not meet these
characteristics may not have the language skills or experience
necessary to effectively explain services to MSFWs or to successfully
tailor those services to meet the particular needs of MSFWs. It is
important for outreach staff to be able to effectively communicate with
the MSFWs whom they serve, particularly because outreach staff often
interact with MSFWs with LEP in remote places, such as rural working
and living locations, where interpretation services and aids may not be
as widely available. If outreach staff speak the same language as the
majority of MSFWs in the State and come from an MSFW background or have
substantial work experience in farmworker activities, then they are
more likely to be able to effectively communicate with the MSFWs whom
they encounter. In sum, the Department has determined SWAs must make a
greater effort to employ outreach workers with the characteristics
required by Sec. 653.107(a)(3), because such individuals are more
likely to have the knowledge and skills to help them effectively
communicate and engage with MSFWs. In the Department's view, the
benefit of identifying qualified candidates with these characteristics
outweighs the burden it places on SWAs to comply with the requirement.
In order to receive applicants from farmworker organizations and
other organizations with expertise concerning MSFWs, SWAs must make the
job opening available to external candidates. SWAs may recruit
internally for outreach staff job openings but they must also recruit
externally. SWAs may hire or assign qualified candidates from their
internal or external recruitment efforts, provided that they put a
strong emphasis on hiring or assigning candidates who meet the
characteristics described at Sec. 653.107(a)(3)(i). If a SWA ensures
hiring officials properly inform appropriate organizations and recruit
externally for outreach staff positions, but these recruitment efforts
do not produce qualified candidates who meet the required criteria,
then hiring officials may assign existing staff to perform outreach
staff responsibilities. In such cases, hiring officials must still put
a strong emphasis on assigning candidates who meet at least some of the
characteristics described at Sec. 653.107(a)(3)(i). To demonstrate a
strong emphasis on hiring or assigning candidates who meet these
characteristics, job postings should describe the desired
characteristics. This proposed change will also allow the Department to
assess whether a SWA has policies and procedures in place to ensure
hiring officials place an appropriate emphasis on seeking and hiring or
assigning qualified candidates who meet the characteristics described
at Sec. 653.107(a)(3)(i). In cases where a SWA has more than one
qualified applicant, the Department would expect hiring officials to
select the applicant who meets the required criteria over the one who
does not.
The Department appreciates that some SWAs may face difficulties in
identifying qualified candidates who meet these characteristics and
understands it may not always be possible to identify such candidates
when hiring or assigning ES staff to outreach staff positions.
Accordingly, this final rule will require SWAs to ensure hiring
officials seek and put a strong emphasis on identifying qualified
candidates with these characteristics. If hiring officials are not able
to find qualified candidates who possess these characteristics, the SWA
may proceed to hire or assign the most qualified candidate.
Appropriate Outreach Staffing Levels and Duties
Comment: The Department received comments both in support and
opposition to its proposal to revise Sec. 653.107(a)(1) and (4) to
clarify and strengthen requirements governing the outreach staff whom
SWAs employ to fulfill the requirements set forth in Sec. 653.107. For
example, a union organization supported the Department's proposed
changes to ensure SWAs employ an adequate number of outreach staff
sufficient to reach a majority of MSFWs in all States. A farmworker
advocacy organization similarly remarked that the proposed changes
would improve MSFW outreach by underscoring that outreach is a full-
time job that deserves priority and should not be combined with other
functions. This commenter thought the proposed changes would help
ensure that outreach staff are available and qualified to provide the
outreach and follow-up services required by the regulations. A State
employee association supported the proposed rule's focus on outreach
services to MSFWs. Similarly, a State government agency agreed with the
proposed requirement for outreach staff in significant MSFW States to
devote all of their time to outreach rather than merely including
outreach among other responsibilities, noting it would further clarify
the role and expectations of outreach staff. However, this State agency
sought further clarification about how it should determine whether it
employs an ``adequate'' number of outreach staff and inquired whether
this determination would involve using a DOL-provided formula to
accurately assess the need and determine what is considered a majority
of the population.
Several other State government agencies opposed the proposed
revisions and urged the Department to
[[Page 82696]]
consider alternative approaches that allow for more flexibility. For
example, one State government agency expressed concern that the
proposed requirement for a SWA to employ a sufficient number of
outreach staff to conduct MSFW outreach ``in each area of the State''
would increase the Department's expectations for MSFW outreach
staffing. Because this State agency did not think the effect of this
proposed revision was clear, it asked the Department to clarify what
the addition of ``in each area of the State'' would require and how it
would impact the State's current practice for employing outreach staff.
In particular, the State agency was concerned that the proposed
requirement to employ an adequate number of outreach staff to conduct
MSFW outreach ``in each area of the State'' might require each
workforce development area or one-stop (depending how ``each area'' is
defined) to devote more resources to MSFW outreach based on unknown
parameters set by the Department. The State agency noted that it
currently employed full-time, year-round outreach staff who serve three
of its 12 workforce development areas, and that those workforce
development areas covered around 90 percent of the State's agricultural
employment population. The State agency expressed concern that the
proposed revisions might require it to employ additional dedicated MSFW
outreach staff to serve the nine other workforce development areas (or
the other 30 non-significant MSFW one-stops), even though those areas
and one-stop centers collectively served only around 10 percent of the
State's MSFW population. The State agency noted that if the Department
were to adopt such a requirement, it would decrease the State's
capacity to conduct outreach to other key populations (e.g., different
groups statutorily identified as having barriers to employment) and to
otherwise serve customers that directly access ES services via one-
stops or virtually. The commenter requested that the Department allow
States to meet regulatory goals through operational flexibility rather
than rigid staffing requirements. Citing annual reports from the SMA to
the Department showing frequent turnover among outreach staff, the
commenter said a flexible approach was important to avoid gaps in
outreach services when attrition occurs.
Another State agency explained that it employed several part-time
outreach specialists throughout the State, and asserted that, as a non-
significant MSFW State, there would not be enough outreach work for
this staff to perform during peak season if their duties are limited to
performing only those activities identified in Sec. 653.107(b).
According to this State agency, limiting the job duties that outreach
staff can undertake during peak season is neither practical nor cost-
effective given the number of MSFWs in the State. The State agency
explained this limitation would pose several problems for the State's
ES staff and the services they are able to provide. Specifically, the
State agency noted that Sec. 653.107(b) does not include duties like
providing services in one-stop centers, attending meetings, and
contributing to the one-stop ES services team. This was problematic,
according to the State agency, because outreach staff are tasked with
encouraging MSFWs to obtain services at one-stop centers, and in order
to effectively serve MSFWs in the field or at one-stop centers,
outreach staff must be able to devote some time to serving non-MSFWs,
so that they stay up to date on the latest services, best practices,
employers, and hiring events in their area.
A different State government agency asserted that the proposed
requirement for year-round, part-time outreach staff in non-significant
MSFW States is untenable because Wagner-Peyser Act funding is not
designated for this function and its current staffing level has proven
sufficient. Specifically, the commenter reported that its MSFW outreach
staff collaborate with the State's NFJP partner on joint outreach,
distribute pamphlets and speak to workers during housing inspections,
and reach MSFWs at outreach clinic events hosted by a State public
university.
Another State government agency objected to the proposed revision
that would require outreach staff in significant MSFW States to spend
100 percent of their time on the outreach responsibilities listed in
Sec. 653.107(b), arguing that it would restrict staffing flexibility
by prohibiting the assignment of additional duties and limit its
staff's ability to assist MSFWs and their families who are seeking
assistance in a one-stop center.
Response: The Department appreciates the feedback it received from
State government agencies regarding the revisions it proposed to the
outreach staffing requirements in Sec. 653.107(a). The Department
proposed these revisions to strengthen the requirements governing
outreach staffing levels to ensure that outreach staff are dedicating
sufficient time to performing the duties set forth at Sec. 653.107(b)
for outreach staff. As noted above, the Department has carefully
considered the concerns these commenters raised and will adopt the
proposed revisions to Sec. 653.107(a) with minor revisions.
Some of the requirements about which commenters expressed concern
are not new proposals. For example, the existing regulation at Sec.
653.107(a)(4) already required significant MSFW States (i.e., the 20
States with the highest estimated year-round MSFW activity) to provide
full-time, year-round outreach staff to conduct outreach duties. It
also required the remainder of States to provide at least part-time
outreach staff on a year-round basis and full-time outreach staff
during periods of the highest MSFW activity.
At the same time, the Department recognizes that some of the
revisions to this section introduce new requirements, and that
compliance with these requirements will require some SWAs to change the
manner in which they have been conducting MSFW outreach or employing
outreach staff. For example, if a SWA currently employs outreach staff
only in those areas where significant MSFW one-stop centers are
located, it will need to ensure that those outreach staff are also able
to conduct outreach in all areas of the State (not just those service
areas in which the significant MSFW one-stop centers are located) and
make enough contacts to reach the majority of MSFWs in the State
annually. If a SWA's existing outreach staff cannot adequately meet
these requirements, then the SWA will need to ensure additional
outreach staff are hired or assigned to meet these requirements.
While compliance with these requirements will require some SWAs to
change the manner in which they currently conduct MSFW outreach, the
Department does not anticipate that implementing these changes will
impose a heavy burden. States will continue to retain some flexibility
in determining how to structure their MSFW outreach in a manner that
meets regulatory requirements. For example, a SWA may assign outreach
staff to cover more than one service area, provided that the number of
outreach staff in the State is adequate to conduct outreach in every
service area in the State and to contact at least a majority of MSFWs
in the State overall on an annual basis.
It is important that SWAs conduct MSFW outreach in all service
areas in the State to ensure MSFWs throughout the State are able to
access ES and receive information on farmworker rights from outreach
staff. While there may be fewer MSFWs in certain areas, it is important
to ensure MSFWs in all
[[Page 82697]]
areas have access to ES on an equitable basis. Additionally, when SWAs
do not conduct outreach in particular areas of the State, MSFWs in
those areas may not be aware of their employment-related rights and the
availability of the ES and Employment-Related Law Complaint System.
These conditions could make MSFWs in those areas more susceptible to
employment-related abuses, including wage theft, exploitation, and
trafficking.
As noted above, the Department acknowledges that the changes
adopted in this final rule will require some States to change the
manner in which they have been employing or assigning outreach staff.
The Department has determined any burden this will impose is outweighed
by the benefits likely to result from adopting these changes, because
compliance with the updated requirements will better ensure that SWAs
serve MSFWs in a manner that is qualitatively equivalent and
quantitatively proportionate to other job seekers. The Department is
concerned that the number of outreach staff in some States is not
adequate to provide ES services in accordance with this standard, and
that outreach staff are too often assigned other duties that detract
from their ability to focus full time on the outreach responsibilities
set forth in Sec. 653.107(b).
SWAs contacted only approximately 21 percent of MSFWs in PY 2018
and approximately 19 percent of MSFWs in PY 2020.\6\ The Department
believes this level of outreach is not adequate. As described in the
NMA Annual Report for PY 2020, the NMA has received information from
farmworker organizations that most farmworkers have never experienced
outreach contacts from SWAs.\7\ This information aligns with the data
described above, which shows SWAs are not contacting the majority of
MSFWs. Farmworkers and advocates report that farmworkers are often not
aware of their employment-related rights, that they fear retaliation
for reporting violations, and that they experience violations of
employment-related law and ES regulations. Farmworker advocates also
report that farmworkers and advocates do not trust that SWAs will
provide help. Section 653.107 requires ES staff to educate farmworkers
about their rights, to be alert to observe working conditions, and to
document and process apparent violations and complaints observed during
outreach. Through the changes adopted in this final rule, the
Department is seeking to increase the outreach provided by SWAs to
reach a larger percentage of MSFWs, improve the presence and
credibility of SWAs in the farmworker community, and increase the
number and percentage of MSFWs who are aware of the ES services,
rights, and protections available to them.
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\6\ See NMA Concern 1 in the PY 2020 NMA Annual Report on
Service to MSFWs, available on the Department's website at https://www.dol.gov/agencies/eta/agriculture/monitor-advocate-system/performance.
\7\ NMA Annual Report for PY 2020, available at: https://www.dol.gov/agencies/eta/agriculture/monitor-advocate-system/performance.
---------------------------------------------------------------------------
In the Department's view, the benefit of having an adequate number
of outreach staff to contact a majority of MSFWs in the State annually
outweighs the burden it places on SWAs to comply with the requirement.
Compliance with this requirement will help to ensure outreach staff in
significant MSFW States are able to focus their full attention on
performing the outreach activities specified in Sec. 653.107(b) on a
year-round basis, and that outreach staff in the remaining States are
able to focus on these outreach activities full time during peak
seasons. This is important because outreach is an essential service
delivery component to effectively serve vulnerable populations and
individuals who live in rural communities like MSFWs. MSFWs often
experience transportation challenges, work long hours, and are afraid
to seek services for numerous factors and they may not be able to go
into an AJC in person. It is therefore imperative that SWAs have an
adequate number of outreach staff to bridge this service gap and
improve accessibility for MSFWs. Outreach staff who devote full time to
their outreach responsibilities are better positioned to provide direct
services to MSFWs and help connect them to other services. The
Department measures the provision of services to MSFWs through its
equity ratio indicators and minimum service level indicators. Data
suggests that increased outreach staffing would help to improve the
provision of ES services in many States. Specifically, while national-
level data for PY 2020 and prior years reflects that SWAs are
cumulatively meeting equity ratio indicators, State-level data shows
that many SWAs are not meeting several measures.\8\
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\8\ See NMA Concern 1 in the PY 2020 NMA Annual Report on
Service to MSFWs, available on the Department's website at https://www.dol.gov/agencies/eta/agriculture/monitor-advocate-system/performance.
---------------------------------------------------------------------------
Accordingly, the revisions adopted in this final rule make clear
that full-time outreach staff must focus 100 percent of their time on
the outreach responsibilities set forth in Sec. 653.107(b). Under this
final rule, full-time outreach staff may not provide services to MSFWs
who enter or otherwise contact the one-stop for ES services, or provide
any other services, including services related to the ARS in subpart F
of this part, such as field checks or housing inspections. MSFWs who
make contact with the one-stop outside of the outreach process must
instead be assisted by other available ES staff. The role of outreach
staff is to locate and contact MSFWs who are not being reached by the
normal intake activities conducted by the ES offices. Consistent with
Sec. 653.107(b)(5), if an MSFW enters the ES office as a result of a
prior outreach contact, the MSFW may be assisted by the outreach staff,
provided that the services fall under the description of follow-up
contacts necessary and appropriate to provide the assistance specified
in Sec. 653.107(b)(1) through (4). If outreach staff are not
available, other ES staff must assist the MSFW.
The Department acknowledges there is less need for outreach in
States with lower populations of MSFWs. Accordingly, Sec.
653.107(a)(4) requires only those States with the highest estimated
year-round MSFW activity to employ full-time, year-round outreach
staff. The remainder of States need only employ full-time outreach
during periods of the highest MSFW activity and may employ part-time
outreach staff the remainder of the year. Under this final rule, SWAs
will continue to provide an assessment of need that is particular to
their State's service area(s) in the AOP, including information about
when peak season in their State occurs and an estimate of the number of
MSFWs in the State during peak season. The final rule will require all
SWAs to use this data to determine the number of outreach staff that
are adequate to conduct MSFW outreach in each service area of the State
and to contact a majority of the MSFWs in the State annually.
The Department disagrees with the commenters that allege it is
untenable for States with lower populations of MSFWs to employ outreach
staff who may perform only those duties described at Sec. 653.107(b)
during peak season. The outreach responsibilities described in
paragraph (b) include time-consuming services like preparation of
applications for ES services, making referrals to employment, providing
assistance with filing complaints, referrals to supportive services,
assistance in making appointments and arranging transportation to and
from local one-stop centers or other appropriate agencies, and follow-
up activities necessary to provide the
[[Page 82698]]
assistance described in Sec. 653.107(b)(1) through (4). Outreach staff
may, therefore, devote time to providing the direct services identified
in Sec. 653.107(b)(4) to the MSFWs they contact through outreach and
may work to ensure the MSFWs they enroll as participants receive
services the Department measures through its equity ratio indicators
and minimum service level indicators. This work is particularly
important because, while national-level data for PY 2020 and prior
years reflects that SWAs are cumulatively meeting equity ratio
indicators, State-level data shows that many SWAs are not meeting
several measures.\9\ The condition appears to exist because data from a
few larger States that are compliant with these measures compensates
for many other States that are not meeting the measures, including
States that are not significant MSFW States. These low-performing
States often do not have full-time or any outreach staff in peak
season, and the Department is concerned that the lack of staffing
negatively impacts the ability of MSFWs in these States to receive
equitable access to the ES. Accordingly, the Department continues to
believe it is necessary for SWAs in all States to employ outreach staff
on a year-round basis, and that outreach staff in non-significant MSFW
States must devote full-time to outreach work during the periods of
highest MSFW activity in the State.
---------------------------------------------------------------------------
\9\ See NMA Concern 1 in the PY 2020 NMA Annual Report on
Service to MSFWs, available on the Department's website at https://www.dol.gov/agencies/eta/agriculture/monitor-advocate-system/performance.
---------------------------------------------------------------------------
The Department disagrees with the commenter that asserted outreach
staff must serve non-MSFWs and perform other duties within a one-stop
center in order to learn how to effectively serve MSFWs. In the
Department's view, the training that outreach staff receive pursuant to
Sec. 653.107(b)(7), which includes training on one-stop center
procedures and on the services, benefits, and protections afforded
MSFWs by the ES, should sufficiently prepare them to successfully serve
MSFWs. Outreach staff may also attend staff meetings and trainings that
relate to improving the quality of their outreach and which do not
detract from their ability to meet outreach requirements described in
this section. Such trainings might include information on one-stop
partners, supportive services, and other information or resources
available to MSFWs, which may also be available to non-MSFWs. Serving
other job seekers is not necessary to obtain the skills or knowledge
necessary to effectively conduct outreach to MSFWs.
In response to the commenter that sought clarification about how a
SWA should determine if it employs an ``adequate'' number of outreach
staff, the Department notes that, per the revision to Sec.
653.107(a)(4) adopted in this final rule, the number of outreach staff
in a State is ``adequate'' if the outreach staff in the State are able
to (1) conduct MSFW outreach in each service area of the State and (2)
contact a majority of MSFWs in the State annually. Section
653.107(a)(4) additionally specifies that outreach staffing levels must
align with and be supported by the estimated number of farmworkers in
the State and the farmworker activity in the State, as demonstrated by
the SWA in the State's AOP.
In response to the commenter seeking clarification about the areas
where States must conduct outreach, the Department is modifying the
revision it proposed to make in Sec. 653.107(a)(4) so that it
explicitly specifies that each SWA must ensure there is an adequate
number of outreach staff in the State to conduct MSFW outreach in each
service area of the State and to contact a majority of MSFWs in all of
the State annually. The final rule will require SWAs to conduct
outreach in all of the State's service areas so that MSFWs in all
service areas are able to access the full range of ES. The SWA's
service areas consist of each local area where the SWA provides labor
exchange services under the Wagner-Peyser Act, as described in the
Memorandum of Understanding (MOU) that is explained in 20 CFR 678.500.
This requirement does not mean that outreach staff must be placed in
each local area, only that the State must ensure that there is an
adequate number of outreach staff in the State to meet the requirements
of this section.
The Department acknowledges the concern raised by some commenters
that the revisions to Sec. 653.107(a)(3) will make it more difficult
to hire and retain outreach staff, which could impede a SWA's ability
to hire an adequate number of outreach staff. However, the Department
does not anticipate that compliance with Sec. 653.107(a)(3) will pose
the obstacle that these commenters fear. While the revised regulation
will require a SWA to ensure hiring officials seek and put a strong
emphasis on hiring and assigning qualified candidates who meet the
characteristics described in Sec. 653.107(a)(3) (i.e., qualified
candidates who speak the language of a significant proportion of the
State MSFW population and who are from MSFW backgrounds or who have
substantial work experience in farmworker activities), if a State seeks
but does not find qualified candidates who meet the characteristics
described in Sec. 653.107(a)(3), the State must still employ an
adequate number of outreach staff by hiring or assigning the most
qualified among available candidates.
For these reasons, the Department adopts the proposed changes, with
the revisions to Sec. 653.107(a)(3) and (4) described above, and will
provide technical assistance and guidance to help SWAs meet the
requirements, as appropriate.
Section 653.107(b)
Paragraph (b) of Sec. 653.107 describes outreach staff
responsibilities. The Department proposed to make several revisions to
this section.
In particular, the Department proposed to amend the introductory
sentence of paragraph (b) to specify that outreach staff
responsibilities include the activities identified in paragraphs (b)(1)
through (11) of this section. This revision would reinforce the
Department's proposal to add a sentence in Sec. 653.107(a)(4) to
specify that full-time outreach means each individual outreach staff
person must spend 100 percent of their time performing the outreach
responsibilities described in Sec. 653.107(b). Because this revision
would remove the colon in the existing regulatory text, the Department
proposed to make a conforming amendment to the beginning of the
sentence in paragraph (b)(1) so that it begins by stating ``outreach
staff must'' instead of ``explaining.''
The Department additionally proposed to make several revisions to
Sec. 653.107(b)(7) to update the topics about which outreach staff
must receive training. In particular, the Department proposed to
replace the reference to outreach staff being trained in ``local
office'' procedures with a requirement to train outreach staff in
``one-stop center'' procedures, which would align with the revised
definition of ES office that the Department proposed at Sec. 651.10.
The Department additionally proposed to require training on sexual
coercion, assault, and human trafficking, in addition to the existing
requirement to provide outreach staff training on sexual harassment
(training on the former topics is suggested but not mandatory in the
existing regulations). The Department also proposed to replace the
existing requirement for SWAs to train outreach staff in the procedure
for informal resolution of complaints with a requirement for
[[Page 82699]]
SWAs to train outreach staff on the Complaint System procedures at part
658, subpart E, and to require that outreach staff be aware of the
local, State, regional, and national enforcement agencies that would be
appropriate to receive referrals.
Finally, the Department proposed several non-substantive revisions
in paragraph (b) to replace ``outreach workers'' with ``outreach
staff'' and ``employment services'' with ``ES services.''
The Department received several comments concerning the revisions
it proposed to paragraph (b), which it describes and responds to below.
Comments regarding the proposal to limit full-time outreach workers to
the outreach responsibilities set forth in this paragraph are discussed
above in connection with the proposed revision to Sec. 653.107(a)(4).
For the reasons discussed below, the Department has not made any
changes to the revisions it proposed to this paragraph and adopts the
revisions to Sec. 653.107(b) as proposed. In addition, although the
Department did not propose to revise Sec. 653.107(b)(6) in the NPRM,
as discussed in the comment responses for Sec. 658.419, the Department
received comments requesting additional clarification to the proposed
definition of apparent violation, which resulted in further revisions
to that definition. As a result, the Department has identified that it
is necessary to revise Sec. 653.107(b)(6) to remove the reference to
suspected violations and to clarify the procedure outreach staff must
follow to document and refer apparent violations. Therefore, through
this final rule, the Department revises Sec. 653.107(b)(6) to state
that outreach staff must be alert to observe the working and living
conditions of MSFWs and if an outreach staff member observes or
receives information about apparent violations, the outreach staff
member must document and refer the information to the appropriate ES
Office Manager (as described in Sec. 658.419 of this chapter).
Comment: A farmworker advocacy organization commended the
Department's proposals that emphasize outreach work is a full-time job
that deserves priority and should not be combined with other functions.
This commenter went on to suggest that the Department add an additional
role to outreach responsibilities: collect data to be used for
prevailing wage surveys. In particular, this commenter recommended that
the Department allow SWAs to leverage outreach staff to collect wage
data while conducting outreach work. The commenter asserted that doing
so would help the Department fulfill its duty to determine the
prevailing wages for agricultural work and better protect farmworker
wages by increasing the frequency of surveys, including worker input in
the determination, and addressing instances of insufficient employer
data.
Response: The Department declines to adopt the commenter's
suggestion to add an additional role to outreach responsibilities for
outreach staff to collect data to be used for prevailing wage surveys.
The Department believes that outreach staff must focus their efforts on
providing services to MSFWs. Prevailing wage surveys would cause
outreach staff to devote time away from providing services to MSFWs.
Comment: The Department received several comments concerning its
proposal to revise the training requirements in Sec. 653.107(b)(7). A
farmworker advocacy organization endorsed the proposal to amend this
paragraph to require that outreach staff receive training on additional
topics (i.e., protecting MSFWs against sexual coercion, assault, and
human trafficking, as well Complaint System procedures). To support the
requirement, this commenter cited news coverage and research findings
about human trafficking and asserted that, in order for the ES
Complaint System to be effective, outreach workers will first need to
make farmworkers aware of its existence.
A State government agency similarly agreed that outreach staff
should receive training on protecting MSFWs against sexual coercion,
assault, and human trafficking, but it urged the Department to provide
appropriate training rather than requiring States to find or develop
appropriate trainings locally. This commenter felt the Department (not
SWAs) should bear responsibility for providing this training, because
the Department identified these topics as issues that are particularly
relevant to H-2A workers, and the Department is tasked with
administering the H-2A visa program. The commenter further reasoned
that if the Department provides training on these topics, it could
target the unique challenges facing outreach staff and provide States
an opportunity to share lessons learned and best practices.
Other commenters raised more general questions about when and by
whom the training required by Sec. 653.107(b)(7) is to be provided.
These commenters questioned what training MSFW outreach staff housed at
one-stop centers would need regarding one-stop center procedures and
how the training requirement could be met when the proposed rule
emphasizes that MSFW outreach staff should be in the field during peak
growing season to ensure MSFWs are protected while they work. In
contrast, a State government agency asserted that outreach staff must
be able to dedicate time to providing services to non-MSFWs so they can
remain up to date on the latest services, best practices, employers,
hiring events, etc. in their area.
Response: The Department continues to believe that it is critical
for outreach staff to receive training on protecting MSFWs against
sexual coercion, assault, and human trafficking, as well as training in
Complaint System procedures. In response to comments asking who will
provide this training (as well as training on the other topics set
forth in Sec. 653.107(b)(7)), the Department notes that the existing
regulation tasks the State Administrator with the responsibility to
develop the training required by this regulation, pursuant to uniform
guidelines developed by ETA. The Department did not propose any
revisions to this requirement in Sec. 653.107(b)(7). The Department
continues to believe the State Administrator is in the best position to
develop these trainings, because conditions, resources, and relevant
service providers are State-specific. While the Department often
provides guidance on protecting MSFWs from employment-related abuses
and the Department's overall regulations for the Complaint System, each
State is best positioned to train their outreach staff on the specific
resources and procedures in their State. Specifically, the State
Administrator can ensure staff receive training on the specific
conditions affecting MSFWs in the State and the SWA's own procedures,
including Complaint System procedures. For example, each State has
different State-level enforcement agencies about which staff should be
informed to make appropriate referrals. Additionally, many States have
anti-trafficking taskforces that are specific to the State or to local
areas. RMAs are available to provide technical assistance regarding
these resources, including sharing contact information for potential
training partners.
In response to questions from commenters asking why outreach staff
need to be trained on one-stop center procedures and when outreach
staff would be available to receive such training if they are working
in the field, the Department notes that Sec. 653.107(b) requires
outreach staff to spend a majority-- but not all-- of their time in the
field. Outreach staff may use the time when they are not in the field
to
[[Page 82700]]
attend training, provide follow-up services, or engage in any of the
other activities described in Sec. 653.107(b). Because outreach staff
are tasked with providing ES services to the MSFWs they contact through
their outreach work--either directly in the field or subsequently in a
one-stop center--they must be trained on how to provide those services
in both the field and at the one-stop center. The Department disagrees
that outreach staff must also serve non-MSFWs at the local one-stop in
order to effectively serve MSFWs and receive this training. Outreach
staff do not need to provide other services in the one-stop to receive
this training and provide competent services to MSFWs.
Section 653.107(d)
Paragraph (d) of Sec. 653.107 requires a SWA to develop an
Agricultural Outreach Plan (AOP) to include in the Unified or Combined
State Plan that its State submits pursuant to sec. 102 or 103 of WIOA.
The Department proposed to amend this paragraph to make several changes
to the content that SWAs must include in their AOP.
First, the Department proposed to revise Sec. 653.107(d)(2)(ii) to
require the AOP to explain the materials, tools, and resources that the
SWA will use for outreach.
Second, the Department proposed to revise Sec. 653.107(d)(2)(iii)
so that it would require a SWA to describe their proposed activities to
contact MSFWs who are not being reached by the normal intake activities
conducted by the one-stop centers and to include within this
description: (1) the number of full-time and part-time outreach staff
in the State; and (2) an explanation demonstrating that there is a
sufficient number of outreach staff to contact a majority of MSFWs in
all the State's service areas annually. The Department proposed this
change to align the information that SWAs provide in the AOP with the
proposed requirement in Sec. 653.107(a)(4) for a SWA to employ an
adequate number of outreach staff to conduct MSFW outreach in each area
of the State to contact a majority of the MSFWs in all of the SWA's
service areas annually. As noted below, the Department has modified the
proposed regulatory text for this provision to conform with the
revisions that it made to the regulatory text in Sec. 653.107(a)(4).
Third, the Department proposed to revise Sec. 653.107(d)(2)(v) to
replace the requirement for a SWA in a State with significant MSFW one-
stop centers to provide an assurance that it is complying with the
requirements in Sec. 653.111 to instead require that SWAs in such
States provide a description of how they how they intend to comply with
the staffing requirements for MSFW one-stop centers in accordance with
Sec. 653.111.
Fourth, the Department proposed to amend Sec. 653.107(d)(4) to
clarify that the AOP must be submitted in accordance with paragraph
(d)(1) of this section instead of paragraph (d), as currently written.
Paragraph (d)(1) is the accurate reference that explains the SWA's
responsibility to develop the AOP as a part of the Unified or Combined
State Plan.
Finally, the Department proposed two revisions at Sec.
653.107(d)(5). First, the Department proposed a technical edit to
change the reference from Sec. 653.108(s) to Sec. 653.108(u) due to
restructuring paragraphs at Sec. 653.108. Second, the Department
proposed to replace ``its goals'' with ``the objectives.'' Referring to
``the objectives'' is more accurate because the Department does not ask
SWAs to provide specific goals in the AOP, rather SWAs identify various
objectives.
The Department largely adopts the proposed changes with only minor
revisions. Specifically, the Department modified the regulatory text it
proposed for Sec. 653.107(d)(2)(iii) to clarify the information that
this provision requires States to include in the AOP and to align with
the revisions that this final rule adopts at Sec. 653.107(a)(4). The
Department adopts all other proposed revisions to Sec. 653.107(d)
without change.
Comment: A farmworker advocacy group supported the Department's
proposed changes to the content that SWAs must include in an
Agricultural Outreach Plan, noting the revisions would require
considerably greater detail about how the SWA intended to reach
farmworkers who do not normally visit the SWA's one-stop centers.
Response: The Department appreciates the views that this commenter
shared. As this commenter noted, the revisions adopted in this rule
will require SWAs to provide more detail in their AOPs about the
outreach they plan to conduct. They will also require SWAs to provide
more detail about how they plan to comply with the staffing
requirements for significant one-stop centers in Sec. 653.111. This
level of detail is essential to aid SMAs, RMAs, and the NMA in
assessing whether SWAs have the appropriate staffing structure to meet
the unique needs of farmworkers.
Section 653.108 State Workforce Agency and State Monitor Advocate
Responsibilities
Section 653.108 governs the monitoring obligations of the SWA and
the SMA. The NPRM proposed numerous revisions to this section intended
to strengthen the role of the SMA and enhance the monitoring activities
that SMAs perform. The Department received a number of comments
addressing these proposals. After careful consideration of the comments
received, the Department has decided to adopt the revisions as
originally proposed, except as noted in the discussions below.
Paragraphs (k), (p), (r), (s), and (t) in this section are redesignated
paragraphs because of revisions made elsewhere in this section. The
Department did not propose any other changes to these paragraphs, and
they are not discussed below.
Section 653.108(a) State Workforce Agency Responsibilities for Service
Delivery to Migrant and Seasonal Farmworkers
Paragraph (a) of Sec. 653.108 establishes the SWA's responsibility
to monitor the SWA's own compliance with ES regulations in serving
MSFWs. The Department proposed to revise this paragraph to explicitly
prohibit the State Administrator or ES staff from retaliating against
an SMA for performing the monitoring activities required by this
section.
Comment: A State government agency and a farmworker advocacy
organization commended the Department for proposing to explicitly
prohibit the SWA from retaliating against SMAs and their staff for
monitoring activities or for raising concerns about noncompliance with
ES regulations.
Response: The Department appreciates the commenters' feedback
supporting the proposed change prohibiting retaliation. The Department
adopts this change as proposed for the reasons set forth in the NPRM.
Section 653.108(b) State Monitor Advocate Requirement and
Qualifications
Paragraph (b) of Sec. 653.108 requires SWAs to appoint an SMA who
must be a SWA official to monitor SWA compliance with ES regulations in
serving MSFWs and sets forth qualifications for the SMA position. The
Department proposed to revise this paragraph to remove the requirement
that the SMA be a SWA official because the Department proposed to
remove the definition of SWA official in Sec. 651.10.
[[Page 82701]]
However, as described in the comment responses for Sec. 651.10, the
final rule will maintain the current definition of SWA official in
existing Sec. 651.10, and therefore, the Department will also maintain
the requirement that the SMA be a SWA official in this paragraph.
The Department also proposed to revise Sec. 658.108 to require
that SWAs not only seek but also put a strong emphasis on hiring
qualified candidates for the SMA position who meet one or more of the
criteria listed in paragraphs (b)(1) through (3). The Department adopts
the change as proposed.
Comment: A farmworker advocacy organization supported proposed
changes to ensure that States prioritize hiring SMAs with experience in
the farmworker community, inform farmworker organizations about
vacancies in the SMA position, and encourage these organizations to
refer qualified applicants. However, the commenter warned that States
do not always honor their obligation to work with farmworker
organizations when hiring for the SMA position. The commenter expressed
hope that the proposed rule's renewed emphasis on the importance of
hiring SMAs with relevant experience and connections would alleviate
this problem going forward.
A State government agency disagreed with the proposal to establish
additional hiring requirements for the SMA role, arguing that putting
``a strong emphasis on hiring'' qualified candidates who meet the
criteria is not needed because SWAs already must ``seek'' such
candidates. The commenter added that it uses detailed job descriptions,
screening evaluations, and interviewing benchmarks to hire strong
candidates.
Response: The Department acknowledges that some SWAs already have
practices in place to hire strong candidates for the SMA position, but
some do not. The changes in this paragraph are intended to better
ensure that SWAs not only seek qualified candidates by complying with
the requirements to contact certain organizations about job openings,
but also hire qualified candidates. The Department acknowledges that
SWAs may not always be able to attract candidates who meet 100 percent
of the criteria outlined in the regulations and therefore mandating
that SWAs hire candidates meeting all of the criteria is not
practicable. Instead, the Department determined that requiring that
SWAs seek and place a strong emphasis on hiring SMAs meeting the
criteria in the regulations gives SWAs the flexibility needed to fill
SMA positions and also better ensures that SWAs hire qualified
individuals to perform the critical duties of the SMA position.
The proposed change to put a strong emphasis on hiring qualified
candidates is important to increase the likelihood that all SWAs will
hire SMAs who meet one or more of the criteria, and not simply seek
such individuals. This proposed change will allow the Department to
assess whether a SWA has policies and procedures in place to ensure it
hires qualified candidates. In cases where a SWA has more than one
applicant, the Department would expect SWAs to hire the applicant with
the listed qualifications, over those that did not meet the
qualifications. The Department adopts the change as proposed to better
ensure SWAs hire qualified candidates for the SMA position.
Section 653.108(c) State Monitor Advocate Status
Paragraph (c) of Sec. 653.108(c) establishes the status of the SMA
within the SWA. The Department proposed several revisions to this
paragraph to strengthen the status of the SMA, as many SMAs have
reported difficulty in their ability to fully carry out their duties
due to insufficient status within the SWA. Specifically, the Department
proposed at Sec. 653.108(c) to create new paragraphs (c)(1) through
(3). First, proposed paragraph (c)(1) required that the SMA be a
senior-level ES staff employee. Second, proposed paragraph (c)(2)
required the SMA to report directly to the State Administrator or their
designee such as a director or other appropriately titled official in
the State Administrator's office who has the authority to act on behalf
of the State Administrator. Third, proposed paragraph (c)(3) required
that the SMA have the knowledge, skills, and abilities necessary to
fulfill the responsibilities as described in this subpart. The
Department adopts the changes as proposed.
Comment: Several State government agencies, both those in support
of and opposed to the requirements in this paragraph, noted that the
requirements will require restructuring or reclassifying the SMA
position.
A farmworker advocacy organization agreed with the proposed
requirement that SMAs must be senior-level officials within the SWA. A
private citizen also supported requiring the SMA to be a senior-level
ES staff employee who reports to the State Administrator, remarking
that the SMA currently does not have sufficient status within the SWA
and reports to a lower level supervisor without decision-making
authority, which they said causes delays or denials of requests by the
SMA and even the disregarding of corrective actions. Similarly, some
State government agencies and anonymous commenters agreed with proposed
changes that would enable SMAs to conduct their role more effectively,
such as strengthening their status and giving them more autonomy, but
asked the Department to provide SWAs with more guidance on the revised
role (e.g., better define ``senior-level'' and ``their designee''). One
of the anonymous commenters recommended the Department communicate the
changes in the SMA's status directly to SWAs, such as through a
webinar, rather than having them learn it from their SMAs. The other
anonymous commenter also urged the Department to ensure that when the
State Administrator uses a designee, the SMA still has direct, personal
access to the State Administrator and the designee is knowledgeable and
experienced in the ES and Monitor Advocate System to better assist the
SMA and make decisions on behalf of the SWA.
A State government agency remarked that not allowing the State
Administrator's designee to be the individual who has direct program
oversight of the ES is practical because it ensures compliance
standards are met without biases. However, the commenter asked the
Department to clarify how it defines ``direct program oversight,'' to
ensure that the SMA is reporting to the correct administrator.
A State government agency opposed the proposed requirement that the
SMA be a senior-level position reporting directly to the State
Administrator, arguing that its approved part-time SMA ensures SWA
adherence to all requirements, has access to the State Administrator
through the chain of command, and would not have any greater efficacy
in oversight at a different level. Another State government agency
similarly opposed a requirement for the SMA to be positioned at the
senior staff level and expressed its preference to retain flexibility
on where the SMA is placed within the agency, arguing it has
demonstrated that its SMA can effectively perform their role from their
current placement within the agency. This State agency additionally
asserted that changing the SMA's current placement within the agency
would likely require reclassification of the position and necessitate a
strategic recruitment process to identify a candidate with the
requisite skills and experience at a senior level. Noting these
processes require time, this State agency asked the Department to
enlarge
[[Page 82702]]
the proposed deadline to comply with this requirement if the Department
decided to adopt it, and provide States 2 years from the effective date
of any final rule to come into compliance with the requirement. Another
State government agency commented that the proposed change would
require reorganization of the State's MSFW program office in order to
elevate the SMA position to report directly to the State Administrator
and to comply with other changes proposed in paragraph (d). This agency
stated the proposed changes could adversely impact the level of funding
that the agency provides to local ES offices to support MSFW
activities.
Some commenters remarked that the proposed changes appear to be a
duplicative effort by aligning the status of the SMA and the E.O.
Officer. In contrast, a State government agency said there are direct
correlations between the SMA and the E.O. Officer and reasoned that
improved alignment and partnership of the two positions would better
address the statewide need.
Referencing the Department's statement that the proposed change
would require the SMA to be ``not only a State employee, but a State
merit-staff employee,'' a State government agency asked the Department
to clarify or define the terms ``State employee'' and ``State merit-
system employee.''
Response: While many commenters, including some SWAs, SMAs, and
advocacy organizations, supported a requirement to enhance the status
of the SMA, the Department recognizes that some SWAs did not. The
Department believes these changes are critical to ensure that SMAs can
more effectively carry out their duties; having ``direct access'' to
the State Administrator ``as needed'' as previously required was not
enough. The Department recognizes that SWAs will need a reasonable
amount of time to implement these changes. The Department requested
comment on the appropriate length of time to come into compliance.
States requested a range of 2 years to 3 years. The Department is
providing 24 months from the effective date of this final rule for SWAs
to implement these changes. This is the same amount of time SWAs will
have to comply with the State merit-staffing requirements in this final
rule. Having one transition period enables SWAs to take the necessary
steps to implement all of the changes required under this final rule at
one time. These steps include, among others, obtaining any required
State authorization, addressing collective bargaining issues and
contracts, and conducting recruiting and training. During the
transition period, the Department will provide technical assistance and
guidance to help SWAs comply with the new requirements. The Department
has detailed the cost burden associated with this final rule in section
VI. Wagner-Peyser Employment Service grant funding is provided annually
to deliver employment services, and such grant funding is available to
cover the cost of implementing this final rule.
The Department noted in the NPRM that many SMAs have reported
difficulty in their ability to carry out their duties due to
insufficient status within the SWA. The proposed changes strengthen the
status of SMA. SMAs are charged with ensuring compliance with ES
regulations put in place to ensure that MSFWs have meaningful access to
services and equal opportunities. To enhance the SMA's ability to
effectively carry out their role, SMAs need to hold a senior-level
position that will grant them more direct access to top management. A
senior-level position is one having a title and resources commensurate
with the level of responsibility for a senior official who reports
directly to the State Administrator or the State Administrator's
designee having the authority to make decisions on behalf of the State
Administrator.
Allowing the State Administrator to select a designee to whom the
SMA reports gives States flexibility in how to implement this
requirement. If a State Administrator chooses to have the SMA report
directly to a designee, the designee must be a position within the
State Administrator's office with authority to act on behalf of the
State Administrator. However, the designee may not be the individual
with direct oversight of the ES, such as the ES director. This
restriction is necessary to avoid challenges that may result from
having the SMA monitor compliance with decisions made by their direct
supervisor or for which their direct supervisor may be responsible.
The Department notes that Sec. 653.108(e) provides States with the
ability to have part-time SMAs with prior approval from the Regional
Administrator (RA). The Department believes the requirements under
paragraph (c) are compatible with the part-time SMA staffing provision
in paragraph (e).
The NPRM referenced the E.O. Officer simply as a comparable
position to an SMA, having a similar level of responsibility and
complexity, that is required to be a senior-level position within a
State. The Department did not propose, nor do these final regulations
require, any changes to the SMA position that either duplicate the work
of the E.O. Officer or require the SMA to have the exact same position
or level as the E.O. Officer. SMAs are responsible for monitoring SWA
and ES office compliance with ES regulations in serving MSFWs. The
change in this final rule requires the SMA to report to the State
Administrator (or designee). E.O. Officers perform a different function
in the State.
The Department notes that ``State employee'' means an individual
employed by the State. ``State merit staff'' means State government
personnel who are employed according to the merit system principles
described in 5 CFR part 900, subpart F (Standards for a Merit System of
Personnel Administration). Requiring the SMA to be State merit staff,
not just a State employee, conforms with the merit-staffing requirement
in Sec. 652.215.
The Department adopts the changes as proposed to ensure SMAs have
the status and authority to monitor SWA compliance with ES regulations.
Section 653.108(d) State Monitor Advocate Staff Responsibilities
Paragraph (d) of Sec. 653.108 describes requirements for staff and
other resources to support the SMA in carrying out monitoring
functions. The Department proposed to revise Sec. 653.108(d) to
require that the SMA have sufficient authority, staff, resources, and
access to top management to monitor compliance with the ES regulations.
In addition, the Department proposed to prohibit SMA staff from
performing outreach responsibilities, ARS processing, and complaint
processing to conform with proposed changes to the SMA's role in these
activities.
Comment: A farmworker advocacy organization remarked that the
proposed revisions ensure SMAs have the authority, tools, and resources
they need to monitor SWA compliance with ES regulations. A few State
government agencies noted the proposed requirements in paragraphs (c)
and (d) together could require restructuring their SMA office (e.g.,
creating a senior-level staff position and hiring additional analyst
staff) and relocating it for direct access to the State Administrator
or their designee. One of those State government agencies requested a
transition period of 3 years to comply with the requirements. A
different State government agency supported the proposed requirement,
saying it would amplify the SMA's monitoring capabilities and allow the
SMA to maintain program standards. However, referencing the
Department's statement that ES staff assigned to help the SMA
[[Page 82703]]
carry out its duties may not be assigned conflicting roles, the
commenter asked the Department to clarify the functions and
responsibilities that ES staff would be assigned under the SMA, which
it said would provide it guidance to determine if any conflict exists.
A State government agency requested that the Department require
coordination between the SMA and SWA officials responsible for
monitoring to help ensure efficient and non-duplicative efforts given
the requirement that the SWA also conduct monitoring.
A farmworker advocacy organization agreed with the proposed
requirement that SMAs must not serve jointly as outreach staff,
reasoning that prohibiting the SMA from serving part-time in an
outreach role would eliminate conflict of interest concerns that arise
from the SMA's responsibility for monitoring outreach efforts. Citing
an article about an investigation of human trafficking by an SMA's
relative, the commenter urged the Department to go further to address
other significant conflicts of interest that can arise with SMAs, such
as by adopting conflict of interest standards for SMAs to ensure that
they are not involved in approving clearance orders or handling
complaints related to family members or close associates.
Response: The Department recognizes that SWAs will need a
reasonable amount of time to implement these changes. The Department
will provide 24 months from the effective date of this final rule for
SWAs to implement these changes. This is the same amount of time SWAs
will have to comply with the State merit-staffing requirements in this
final rule. Having one transition period enables SWAs to take the
necessary steps to implement all of the changes required under this
final rule at one time. These steps include, among others, obtaining
any required State authorization, addressing collective bargaining
issues and contracts, and conducting recruiting and training. During
the transition period, the Department will provide technical assistance
and guidance to help SWAs comply with the new requirements.
In the NPRM, the Department proposed changes to prohibit the SMA's
staff from being assigned conflicting roles to perform any outreach
responsibilities, ARS processing, or complaint processing. The
Department proposed regulatory text to prohibit SMA staff from
performing work that conflicts with the ``monitoring'' duties of the
SMA. The final regulatory text does not include the word ``monitoring''
before duties to make clear that SMA staff must not perform any work
that conflicts with any of the SMA's duties, not just the SMA's
monitoring duties. The Department notes the recommendation to go
further to address other significant conflicts of interest that can
arise with SMAs, such as by adopting conflict of interest standards for
SMAs in this final rule. The Department is adding in paragraph (e)
regulatory text to explicitly prohibit the SMA from performing any work
that conflicts with any of the SMA's duties in Sec. 653.108. The
Department will further address conflicts of interest and internal
controls in technical assistance and guidance.
Section 653.108(e) State Monitor Advocate Full-Time Staffing
Requirement and Prohibited Duties
Paragraph (e) of Sec. 653.108 is a new paragraph that was
proposed, specifying that no State may dedicate less than full-time
staffing for the SMA position unless the RA, with input from the RMA,
provides written approval. The Department is also making one change in
this section that was not proposed in the NPRM to explicitly state that
the SMA must not perform work that conflicts with any of the SMA's
duties, such as outreach, ARS processing, and complaint processing.
Comment: Citing reports of issues such as discrimination arising
when SMAs split their time between monitoring activities and other
duties, a farmworker advocacy organization agreed with the proposed
requirement that SMAs must serve in the role full-time.
Response: The Department acknowledges the commenter's support for a
full-time SMA staffing requirement. The Department sought to strengthen
the regulation permitting part-time SMA staffing (previously described
in Sec. 653.108(d)) by (1) including the RMA in the RA's process for
determining whether a State has demonstrated that the SMA function can
be effectively performed with part-time staffing; and (2) requiring
express written approval by the RA. After consideration of comments
regarding SMA conflicts, the Department is also revising this paragraph
to explicitly state that the SMA must not perform any work that
conflicts with any of the SMA's duties described in Sec. 653.108. This
change was not proposed in the NPRM, but the Department did propose and
has adopted in the definition of ``outreach staff'' in Sec. 651.10,
regulatory text explaining that SMAs are not considered outreach staff.
In part 658, the Department proposed and adopted regulatory text
prohibiting the SMA from participating in the complaint process. And in
paragraph (d) of this section, the Department proposed an explicit
prohibition on the SMA's staff from performing any work that conflicts
with the SMA's duties, such as outreach, ARS processing, and complaint
processing. It follows that the SMA must not perform work that
conflicts with the SMA's duties either. Therefore, the Department is
expressly prohibiting the SMA from performing any work that conflicts
with the SMA's duties described in this section.
Section 653.108(f) State Monitor Advocate Training
Redesignated paragraph (f) of Sec. 653.108 sets forth required
trainings for SMAs and SMA staff to maintain competency. The Department
proposed to remove the requirement that SMAs attend a training by the
RMA within the first 3 months of the SMA's tenure. Instead, the
Department proposed to require all SMAs and their staff to attend
trainings offered by the RMA, the NMA, and their team, as well as those
trainings necessary to maintain competency and enhance the SMA's
understanding of the unique needs of farmworkers. This includes
trainings offered by an enumerated list of Federal agencies as well as
trainings offering farmworker-related information.
Comment: Numerous commenters, including several labor unions, a
couple of think tanks, and an advocacy organization, commended the
Department for its commitment to improving the effectiveness of SMAs
and ensuring that their staff receive the training necessary to provide
MSFWs adequate services. A farmworker advocacy organization agreed it
is important that SWA staff receive proper training on key tasks like
assessing agricultural jobs and connecting workers with necessary
services.
Response: The Department appreciates the comments provided in these
areas supporting the proposed changes. After further consideration, the
Department identified a need to clarify which staff may require SMAs to
attend training. The Department has decided to remove the proposed
reference to NMA team members and instead refer to NMA staff, as
identified in Sec. 658.602(h). The Department adopts the proposed
revisions, with the exception of updating the reference to NMA staff,
for the reasons outlined in the NPRM.
[[Page 82704]]
Section 653.108(h) State Monitor Advocate Review of State Workforce
Agencies and Employment Service Offices
Paragraph (h) of Sec. 653.108 outlines elements of the SMA's
review of SWA and ES office service delivery to MSFWs. These
requirements were previously described in Sec. 653.108(g). The
Department proposed in Sec. 653.108(h)(1)) to specify important
elements of the ongoing review that the SMA must conduct under this
paragraph. In particular, new proposed paragraphs (h)(1)(i) through
(iii) would require the SMA to conduct an ongoing review of the
delivery of services and protections afforded by the ES regulations to
MSFWs by the SWA and ES offices, including: (i) monitoring compliance
with Sec. 653.111; (ii) monitoring the ES services that the SWA and
one-stop centers provide to MSFWs to assess whether they are
qualitatively equivalent and quantitatively proportionate to the
services the SWA and one-stop centers provide to non-MSFWs; and (iii)
reviewing the appropriateness of informal resolution of complaints and
apparent violations as documented in the complaint logs. The Department
proposed in Sec. 653.108(h)(3) and to clarify that SMAs must conduct
onsite reviews of one-stop centers regardless of whether the one-stop
center is designated as a significant MSFW one-stop center. Proposed
Sec. 653.108(h)(6) maintained an existing requirement for SMAs to
review outreach workers' daily logs and other reports, including those
showing or reflecting the workers' activities, but proposed that this
review be done on a ``regular'' rather than a ``random'' basis. The
Department adopts the changes as proposed.
Comment: Some commenters disagreed with the proposed requirement
that SMAs must conduct onsite reviews of one-stop centers regardless of
whether the one-stop center is designated as a significant MSFW one-
stop center, arguing that this is an overreach, that it is duplicative
of existing monitoring reviews, and that monitoring of one-stop centers
can be accomplished without dismantling the current Michigan model.
Quoting the Secretary describing the Industry-Recognized Apprenticeship
Program as ``a disconnected, duplicative program that does nothing but
create confusion,'' the commenters asserted the same could be said of
the proposed requirement, which they warned would slow customer service
response time, increase all workforce system costs, and reduce
flexibility in meeting the needs of local communities. In contrast, a
farmworker advocacy organization supported the proposed requirement but
cautioned that SMAs will need adequate resources to effectively
implement this change. A few State government agencies also stated that
the proposed revision will require an increase in staffing resources.
A State government agency opposed the proposed requirement that
SMAs must monitor whether the ES services provided to MSFWs are
qualitatively equivalent and quantitatively proportionate to the
services provided to non-MSFWs. The commenter argued that State
performance indicators already serve this purpose and are gathered to
determine whether services are quantitatively proportionate. The
commenter stated that States would need additional guidance from the
Department on how the SMA should determine whether services are
qualitatively equivalent to ensure all States follow the same standards
for such monitoring.
Referencing the Department's proposed clarification that SMAs must
review outreach workers' daily logs and other reports, including those
showing or reflecting the workers' activities, on a ``regular'' rather
than ``random'' basis, a State government agency agreed with the
proposal, which they said could help identify potential errors or
irregular reporting in daily outreach logs and monthly manager reports
as well as prevent significant MSFW one-stop offices from receiving a
finding during annual reviews.
Response: The Department adopts the changes as proposed.
The monitoring requirements in redesignated paragraphs (h)(1)(i)
and (iii) are derived from requirements that previously existed at
Sec. 653.108(g)(1). The minor revisions to these requirements are
intended only to clarify existing requirements. Specifically, paragraph
(h)(1)(i) requires an SMA's ongoing review to include monitoring
compliance with Sec. 653.111 to highlight the importance of staffing
significant MSFW one-stop centers appropriately to meet the unique
needs of farmworkers. This change is necessary to help ensure
significant MSFW States meet the minimum service level indicators, some
of which measure qualitative outcomes like median earnings in
unsubsidized employment and individuals placed in long-term non-
agricultural jobs.
All States are required to meet equity indicators that address
provision of ES services, including individuals referred to a job,
receiving job development, and referred to supportive or career
development. To meet the equity performance standards, the percentage
of services provided to MSFWs must be equal to or greater than the
percentage of services offered to non-MSFWs. Significant MSFW States
must also meet minimum levels of service, which must include, at a
minimum, individuals placed in a job, individuals placed long-term (150
days or more) in a non-agricultural job, a review of significant MSFW
ES offices, field checks conducted, outreach contacts per quarter, and
processing of complaints.
As mentioned in the PY 2020 NMA Annual Report, data SWAs submit
through Form ETA-5148 show that the majority of SWAs are not meeting
several equity ratio indicators.\10\ The data shows that most SWAs are
providing MSFWs with equitable access to basic career services but are
not providing MSFWs equitable access to higher-level staff assisted
services. This condition is particularly concerning because it may
impact the ability of MSFWs to access training and employment
opportunities necessary to attain and maintain gainful and secure
employment. Additionally, between PY 2015 and PY 2019, equity levels
trended down in four equity ratio indicators (referred to jobs,
received staff assisted services, referred to support service, and job
development contact).\11\ Most notably, there was a 7-percentage-point
decrease in States that referred MSFWs to jobs on a quantitatively
proportionate basis in PY 2019 compared to PY 2015. The COVID-19
pandemic likely had some impact on the outcomes in PY 2019 but because
equity trended down for the last 5 years preceding the pandemic, the
pandemic cannot be the only cause.
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\10\ NMA Annual Report for PY 2020, available at: https://www.dol.gov/agencies/eta/agriculture/monitor-advocate-system/performance.
\11\ NMA Annual Report for PY 2019, available at: https://www.dol.gov/agencies/eta/agriculture/monitor-advocate-system/performance.
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SWA performance reports also show that significant MSFW States
performed considerably below required levels for five of the seven
Minimum Service Level Indicators in PY 2019 and PY 2020.\12\ Between PY
2015 and PY 2019, performance decreased in six of the seven indicators.
While minimum service level indicators improved in PY 2020, all
Significant MSFW States still did not meet each indicator. The most
significant decrease in PY 2019 was in reviews of Significant MSFW ES
Offices. The Department is particularly concerned that the majority of
[[Page 82705]]
Significant MSFW States and all States have not been meeting the
indicator for reviews of Significant MSFW Offices. If properly
completed, SMA onsite reviews should identify the same downward trends
that the Department identified and should result in corrective action
plans to resolve findings of noncompliance. The low rates of
Significant MSFW Office reviews completed, therefore, may directly
relate to the low rates of compliance with equity ratio indicators and
minimum service levels. In Sec. 653.108(h)(1)(ii), the Department
clarifies that SMAs are required to monitor whether the ES services
provided to MSFWs are qualitatively equivalent and quantitatively
proportionate to the services provided to non-MSFWs.
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\12\ See performance data available at https://www.dol.gov/agencies/eta/agriculture/monitor-advocate-system/performance.
---------------------------------------------------------------------------
Additionally, as described at Sec. 653.108(h)(3)(ii), the SMA must
ensure that the onsite review format, developed by ETA, is used as a
guideline for onsite reviews. The Department's Core Monitoring Guide
provides the Department's onsite review format and includes guidance on
how the SMA may monitor the quality of the program and services.\13\
The existing regulations explain that in addition to ensuring all
significant MSFW one-stop centers are reviewed at least once per year
by a SWA official, the SMA must ensure ES offices in which significant
problems are revealed by required reports, management information, the
Complaint System, or other means are reviewed as soon as possible. The
existing regulations therefore prescribe that SMAs must review one-stop
centers that are not designated as significant MSFW one-stop centers,
as appropriate. Revised Sec. 653.108(h)(3) is important to strengthen
the SMA's monitoring requirements because it will clearly state that
the SMA must participate in onsite reviews of one-stop centers on a
regular basis (regardless of whether or not they are designated
significant MSFW one-stop centers).
---------------------------------------------------------------------------
\13\ United States Department of Labor, Employment and Training
Administration Core Monitoring Guide (Aug. 2018), available at:
https://www.dol.gov/sites/dolgov/files/ETA/grants/pdfs/2%20CMG%20CoreMonitoringGuide_FINAL_20180816(R).pdf.
---------------------------------------------------------------------------
To specifically address the comment that opposed the proposed
requirement that SMAs must monitor whether the ES services provided to
MSFWs are qualitatively equivalent and quantitatively proportionate to
the services provided to non-MSFWs and that State performance
indicators already serve the purpose of monitoring ES services, the
Department believes the SMA's monitoring is necessary in addition to
the monitoring that the Department conducts. The SMA's ongoing and
onsite reviews are necessary to ensure compliance issues are resolved
in a more timely manner than the quarterly basis on which States report
Equity Ratio Indicators and Minimum Service Level Indicators to ETA.
This more timely review helps ensure MSFWs receive equitable services
when the MSFWs are still available to benefit from the services before
they may become unavailable due to the transient nature of their work.
The Department agrees with the comment that requiring the SMA to
review outreach logs on a regular basis could help identify potential
errors or irregular reporting in daily outreach logs and monthly
manager reports as well as prevent significant MSFW one-stop offices
from receiving a finding during annual reviews.
The Department adopts the changes as proposed and will provide
technical assistance and guidance to help SWAs comply with the
requirements.
Section 653.108(i) SMA Participation in Federal Reviews
In redesignated paragraph (i), the Department proposed to add ``as
requested by the Regional or National Monitor Advocate,'' after ``The
SMA must participate in Federal reviews conducted pursuant to part 658,
subpart G, of this chapter.'' The Department did not receive any
comments on this change and adopts the change as proposed for the
reasons set forth in the NPRM.
Section 653.108(j) State Monitor Advocate Role in Complaint System
Paragraph (j) of Sec. 653.108 outlines the role of the SMA in the
Complaint System. The SMA's role in the Complaint System was previously
described in Sec. 653.108(i). In paragraph (j), the Department
proposed to require that the SMA perform solely a monitoring role in
the Complaint System, consistent with changes made in part 658 of this
final rule. The changes removed the ability of the State Administrator
to assign the SMA responsibility as the Complaint Service
Representative and the requirement that the SMA participate in the
Complaint System as described under part 658. The Department made
parallel revisions in Sec. 658.410(h). Some commenters, including a
farmworker advocacy organization and a State government agency, opposed
the change. In part, these commenters stated that the SMA should still
have a participant role in the Complaint System due to the SMA's
expertise with MSFWs. Some State government agencies supported the
change, stating the change will help ensure that the SMA is objective
and not biased. For full discussion of the prohibition on the SMA's
acting as the Complaint System Representative and participation in the
Complaint System, see the discussion for Sec. 658.410(h). The
Department adopts the change in paragraph (j) as proposed to more
clearly delineate the SMA's role in monitoring the Complaint System and
to avoid conflicts of interest in the SMA role by ensuring separation
of duties between SMAs and other ES staff roles.
Sections 653.108(l), 653.108(m), and 653.108(n) State Monitor Advocate
Liaison Requirements
Paragraphs (l), (m), and (n) of Sec. 653.108 establish SMA liaison
requirements. Proposed paragraph (l) sets forth requirements that
previously existed at Sec. 653.108(k) requiring the SMA to liaise with
WIOA section 167 NFJP grantees and other organizations serving
farmworkers, employers, and employer organizations in the State. In
Sec. 653.108(m), the Department proposed to require that the SMA
establish an ongoing liaison with the State-level E.O. Officer. In
Sec. 653.108(n), the Department proposed a conforming revision to the
cross-references so that the representatives with whom the SMA must
meet reflect the organizations described in paragraph (l) and the
State-level E.O. Officer referenced in paragraph (m).
Comment: A farmworker advocacy organization supported the proposed
requirements that SMAs regularly engage with representatives of NFJP
grantees, the State Equal Employment Officer, and other organizations
serving farmworkers, employers, and employer organizations in the
State. The commenter recommended that this engagement should include
working with unions, worker organizations, legal service providers, and
farmworker attorneys in the State because these are often some of the
first groups to hear complaints from workers. A State government agency
agreed with the new requirement that the SMA must establish an ongoing
liaison with the State-level E.O. Officer, reasoning that it would
present States with the opportunity to enhance collaboration between
SMAs and E.O. Officers.
Response: The Department appreciates the comments in support of the
proposed revisions. The Department will continue to address in guidance
or technical assistance which organizations are important for SMA
liaison for purposes of paragraph (l). The Department adopts the
changes as
[[Page 82706]]
proposed, for the reasons set forth in the NPRM.
Section 653.108(o) State Monitor Advocate Field Visits
Paragraph (o) of Sec. 653.108 describes requirements for field
visits conducted by the SMA. These requirements were previously
described in Sec. 653.108(m). The Department proposed that during
field visits, the SMA must discuss the SWA's provision of ES services
and obtain input on the adequacy of those services from MSFWs, crew
leaders, and employers, rather than providing direct employment
services and access to other employment-related programs. The
Department adopts the proposed change.
Comment: A State government agency requested the Department clarify
that SMAs do not conduct field visits, which it said have a specific
purpose in regulation, but rather monitor the adequacy of information
and services provided to MSFWs by ES staff during field visits. The
commenter argued that this clarity is important because treating SMA
activity as a field visit is imprecise and detracts from its monitoring
purpose.
Another State government agency opposed the proposal that during
field visits SMA must discuss the SWA's provision of ES services and
obtain input on the adequacy of those services from MSFWs, crew
leaders, and employers, asserting that this would not be a useful way
to gauge how well the State is providing ES services to MSFWs because
few MSFWs reach out for services and even fewer receive them. The
commenter suggested that this purpose would be better served by asking
MSFWs, crew leaders, and employers if they learned about ES services,
worker rights, employment rights, and employer/contractor
responsibilities and if they were able to reach out and felt
comfortable reaching out to outreach workers or visiting an ES office
to seek assistance.
Response: Consistent with the definition of field visits, SMAs do
conduct field visits, but they differ from field visits conducted by
outreach staff. During SMA field visits, SMAs do not conduct the
outreach activities outlined in Sec. 653.107. Instead, as this
paragraph requires and consistent with the SMA's monitoring role, SMAs
must discuss the SWA's provision of ES services and employment-related
activities with MSFWs, crew leaders, and employers. SMAs are still
expected to discuss farmworker protection and rights when conducting
field visits.
The Department agrees that it is relevant and permissible for SMAs
to ask MSFWs, crew leaders, and employers if they learned about ES
services, worker rights, employment rights, and employer/contractor
responsibilities and if they were able to reach out and felt
comfortable reaching out to outreach workers or visiting an ES office
to seek assistance during the SMA's field visits. Asking these
questions is one way the SMA may discuss the SWA's provision of ES
services and obtain input on the adequacy of those services from MSFWs,
crew leaders, and employers. The commenter's statement that few MSFWs
reach out for services and even fewer receive them demonstrates that
SWAs may not be conducting adequate outreach or making services
available to MSFWs, taking into consideration their particular needs.
For this reason, it is particularly important that SMAs conduct field
visits to identify adequacy of services and to receive input on how to
improve services, which informs the SMA's monitoring, reporting, and
technical assistance. The Department adopts these changes as proposed,
to clarify the role of the SMA and the purpose of field visits.
Section 653.108(u) State Monitor Advocate Annual Summary
Paragraph (u) of Sec. 653.108 outlines requirements for the SMA to
prepare an Annual Summary describing how the State provided ES services
to MSFWs within the State based on statistical data, reviews, and other
activities. These requirements were previously described in Sec.
653.108(s). Subordinate paragraphs (u)(1) through (11) identify the
various required components of the Annual Summary. In Sec.
653.108(u)(5), the Department proposed to specify that when the SMA
summarizes the outreach efforts undertaken by all significant and non-
significant MSFW ES offices in the State, the SMA must include the
results of those efforts and analyze whether the outreach levels and
results were adequate. Aside from a technical edit, the Department
adopts the proposed change for the reasons discussed below. The
Department did not receive substantive comments on other revisions
proposed in paragraph (u) and adopts those changes for the reasons set
forth in the NPRM.
Comment: A Colorado State government agency and other commenters
expressed concern about the proposed rule's inclusion of non-
significant MSFW offices in the requirement that an SMA submit an
Annual Summary report to the Department describing its provision of
services to MSFWs. Explaining that Colorado's few significant MSFW
offices are so designated based on the presence of hand labor crops in
their geographic area rather than having a high proportion of MSFWs
served, the commenters asserted that the proposed requirement implies
the need to divert ES staff from assisting job seekers, UI claimants,
and businesses to focusing on MSFW outreach in offices with very small
numbers of MSFWs.
A State government agency disagreed with the proposed requirement
that when the SMA summarizes the outreach efforts undertaken by all
significant and nonsignificant MSFW ES offices in the State, the SMA
must include the results of those efforts and analyze whether the
outreach levels and results were adequate. The commenter's objections
were that outreach activities already have required reporting and--
unless the Department clearly defines in the regulations what States
must do to meet adequate outreach levels and results outside of the
performance measure--SMAs would have to make their own subjective
determinations about what is adequate.
Response: Regarding the concerns about the proposed rule's
inclusion of non-significant MSFW offices in the SMA's Annual Summary
report requirement, the Department acknowledges that there may be less
MSFW activity in service areas for ES offices that are not designated
as significant MSFW one-stop centers. The Department notes that the SMA
was already required to include information about outreach levels in
both significant and non-significant MSFW ES offices. It is not the
Department's intent to encourage nor does the Department require that
non-significant MSFW offices unnecessarily divert local office
resources to MSFW outreach where there is no need to do so. However,
the SMA is required to review the SWA's overall provision of services
to MSFWs throughout the entire State. Doing so allows the SMA to
evaluate if the SWA is in compliance with regulatory requirements.
Further, existing regulations explain that in addition to ensuring that
all significant MSFW one-stop centers are reviewed at least once per
year by a SWA official, the SMA must ensure ES offices in which
significant problems are revealed by required reports, management
information, the Complaint System, or other means are reviewed as soon
as possible. Therefore, it is relevant for the SMA to include
information about all offices in their Annual Summary.
Additionally, regarding the concern that the SMA must include in
their Annual Summary the results of outreach efforts in the State and
analyze whether
[[Page 82707]]
the outreach levels and results were adequate, the Department believes
this is relevant and necessary. As explained in the NPRM, the
Department believes this analysis will help the Department understand
whether the SMA believes that the SWA has allocated sufficient outreach
staff and resources to complete the outreach duties identified at Sec.
653.107, including whether outreach staff are able to reach the
majority of MSFWs in the State. The SMA's analysis and opinion on
outreach throughout the entire State is central to the SMA's monitoring
and reporting functions. Specifically, the Annual Summary described in
Sec. 653.108(u) must be prepared by the SMA and is intended to include
the SMA's independent assessment of the quantity and quality of ES
services provided to MSFWs. The SMA's assessments must be based on
quantitative standards, including minimum service level indicators and
equity ratio indicators, as well as information the SMA gathers through
their monitoring, field visits, and liaison with employers, MSFWs, and
farmworker organizations, which inform the SMA's opinions regarding the
quality of services.
The SMA's analysis of the SWA's outreach is distinct from the
required reporting of the minimum service level indicators that
significant MSFW States must meet. The minimum service level indicator
regarding number of outreach contacts per quarter measures the quantity
of MSFW outreach contacts significant MSFW States make per quarter.
This indicator is relevant to significant MSFW States to ensure
significant MSFW States conduct minimum levels of outreach year-round
because those States must have full-time outreach staff year-round.
This indicator does not apply to the remainder of the States because
States that are not designated as significant MSFW States may have
part-time outreach staff in non-peak season. In all States, outreach
staff must contact the majority of MSFWs in the State on an annual
basis.
Under this final rule, SWAs will continue to provide an assessment
of need that is particular to their State's service area(s) in the AOP,
including information about when peak season in their State occurs and
an estimate of the number of MSFWs in the State during peak season. The
final rule will require all SWAs to use this data to determine the
number of outreach staff that are adequate to conduct MSFW outreach in
each area of the State and to contact a majority of the MSFWs in the
State annually.
MSFWs constitute a critical population of workers with unique needs
and challenges who are vulnerable to exploitation, abuse, and
mistreatment. Therefore, the Department wants all States to allocate
the necessary resources to reach the majority of MSFWs in the State.
The SMA's analysis of the SWA's outreach levels and results in the
State will better enable the Department to analyze whether additional
State (or Federal) resources may be necessary.
After further review, the Department identified a need to update
Sec. 653.108(u)(5) to use the term significant MSFW one-stop center,
instead of significant MSFW ES office. This change is necessary to
align the requirement with the defined term in Sec. 651.10. Aside from
this technical edit, the Department adopts the changes to Sec.
653.108(u) as proposed and will provide technical assistance and
guidance to help SWAs comply with the requirements.
Section 653.109 Data Collection and Performance Accountability Measures
Section 653.109 sets forth MSFW-specific data collection
requirements and performance accountability measures. The Department
proposed to amend this section to make two notable changes. First, the
Department proposed to add a new data collection requirement at Sec.
653.109(b)(10), which would require SWAs to collect the number of
reportable individuals and participants who are MSFWs. This would align
the data collection requirements in this section with the new
requirement in Sec. 653.103(a) for ES offices to determine whether
reportable individuals are MSFWs, as defined at Sec. 651.10 of this
chapter. The Department received one comment from a State government
agency on this proposal, which is summarized and addressed in the
discussion of Sec. 653.103 above. For the reasons explained there, the
Department has determined the benefits of collecting this information
outweigh the costs, and it adopts the proposed data collection
requirement in Sec. 653.109(b)(10) as proposed.
Second, the Department proposed to amend Sec. 653.109(h), which
sets forth the minimum levels of service that significant MSFW States
must meet, by replacing the requirement for a significant MSFW State to
measure the number of outreach contacts per ``week'' with a requirement
that such States measure the number of outreach contacts per
``quarter.'' The Department proposed this change to align with the
other quarterly data submissions that SWAs provide to the Department.
A State government agency submitted a comment opposing the
Department's proposal to change the frequency with which outreach
contacts are measured. As discussed below, the Department considered
these concerns and determined that they do not necessitate any changes
to the proposed regulatory text. Accordingly, the Department adopts
this revision as proposed.
Comment: Commenters from a State government agency opposed changing
the requirement for significant MSFW States to measure the number of
outreach contacts from per week to per quarter, reasoning that the
change could lead outreach staff to limit outreach contacts to the end
of the quarter instead of making outreach contacts throughout the
quarter. As an alternative, the commenter recommended the requirement
could be changed to once per month to allow some flexibility for
outreach staff to meet the requirement even during non-peak seasons.
Response: The Department acknowledges the State agency's concern
that the reduction in reporting frequency could lead outreach staff to
limit outreach contacts to short periods at the end of the quarter,
instead of conducting outreach consistently throughout the quarter.
However, the Department does not anticipate that such an outcome is
likely to occur, because this final rule retains the requirement for
outreach staff to spend a majority of their time in the field, and it
will additionally require a State to employ an adequate number of
outreach staff to contact a majority of MSFWs in the State annually. It
would therefore be difficult for a significant MSFW State to
effectively comply with other regulatory requirements governing
outreach if the outreach staff in the State limit the outreach they
conduct to only a short period at the end of the quarter. Moreover,
this change will impact only the frequency with which significant MSFW
States must report outreach contacts to the Department. If a SWA or ES
office is concerned that outreach staff are not making outreach
contacts consistently throughout a quarter, then that SWA or ES office
may independently require its outreach staff to report the number of
outreach contacts they make on a more frequent basis or to comply with
other interim goals that would allow it to monitor the performance of
its outreach staff throughout the quarter. Ineffective or noncompliant
outreach may be addressed through monitoring and corrective actions by
the SWA, ES offices, and SMA.
The Department notes that there will not be a change in the
frequency of reporting outreach contacts to the
[[Page 82708]]
Department. SWAs report performance data to ETA on a quarterly basis
through Form ETA-5148. The revision will align the measure with the
existing quarterly reporting timelines for SWA grantees. Additionally,
as mentioned in the NPRM, SMAs have provided feedback to the Department
that measuring contacts per week is difficult and not an effective
measurement of outreach, and they believe it would be a better measure
to report contacts per quarter.
After further review, the Department identified a need to update
Sec. 653.109(h) to use the term significant MSFW one-stop centers,
instead of significant MSFW ES office. This change is necessary to
align the requirement with the defined term in Sec. 651.10. The
Department adopts the changes to Sec. 653.109 as proposed, with the
additional reference to significant MSFW one-stop centers, for the
reasons described above.
Section 653.110 Disclosure of Data
The Department proposed to revise Sec. 653.110(b) by removing the
word ``the'' before ``ETA.'' No comments were received on this proposed
revision, and the Department finalizes this technical edit as proposed.
Section 653.111 State Workforce Agency Staffing Requirements for
Significant MSFW One-Stop Centers
Section 653.111 sets forth staffing requirements for significant
MSFW one-stop centers. The Department proposed to revise paragraph
(a)--which currently requires SWAs to implement and maintain a program
for staffing significant MSFW one-stop centers by providing ES staff in
a manner facilitating the delivery of employment services tailored to
the special needs of MSFWs, including by seeking ES staff that meet the
criteria in Sec. 653.107(a)(3)--and divide it into two sentences. The
first sentence would provide that a SWA must staff significant MSFW
one-stop centers in a manner that facilitates the delivery of ES
services tailored to the unique needs of MSFWs. The second sentence
would clarify that such staffing includes recruiting qualified
candidates who meet the criteria for outreach worker positions in Sec.
653.107(a)(3).
The Department received a comment concerning the proposed revisions
to this section. Revisions to the merit-staffing requirement adopted in
this final rule necessitate revisions to the hiring requirements in
this section, as described below.
Comment: A State government agency expressed its opposition to the
proposed revisions to this section and the accompanying revision to
Sec. 653.107(a)(3), noting it did not support any increase in
requirements for hiring ES staff.
Response: The Department anticipates that the revisions to this
section, much like the revisions proposed and adopted in Sec.
653.107(a)(3), will help SWAs recruit staff who are better equipped to
assist MSFWs in significant MSFW one-stop centers. The Department is
revising the text proposed in this section to conform with changes made
to the merit-staffing requirement in Sec. 652.215 of this chapter.
Under this final rule, a SWA must ensure hiring officials seek and put
a strong emphasis on hiring ES staff for significant one-stop centers
who meet the enumerated criteria. As explained above in the section-by-
section discussion for Sec. 653.107(a), a SWA will retain some
discretion in developing their State's plan to meet this requirement,
and if hiring officials are unable to identify qualified candidates who
meet the required characteristics, then the SWA may proceed to hire or
assign the most qualified candidate(s). It is particularly important
for ES staff in significant MSFW one-stop centers to possess these
characteristics, because such staff are more likely to have the skills
and experience necessary to facilitate the delivery of ES services
tailored to the special needs of MSFWs, and significant MSFW one-stop
centers, by definition, serve greater numbers of MSFWs than other one-
stop centers. The need for SWAs to ensure hiring officials recruit ES
staff who are qualified to serve this unique population is therefore
greater in significant MSFW one-stop centers than it is in one-stop
centers who serve fewer MSFWs. The Department recognizes that
compliance with the recruitment requirements adopted in this rule may
require some SWAs to change their current practices. In adopting these
requirements, the Department has taken this into consideration and
determined that these requirements strike the right balance, because
they increase the likelihood that SWAs will hire staff with appropriate
skills to adequately serve MSFWs, while providing flexibility if SWAs
are not able to find qualified candidates who meet the enumerated
criteria.
2. Subpart F--Agricultural Recruitment System for U.S. Workers (ARS)
Subpart F sets forth the regulations governing the ARS, including
the requirements that employers must follow when submitting clearance
orders for temporary or seasonal farmwork, and the requirements that
SWAs must follow in processing the orders. In subpart F, the Department
proposed new requirements for processing clearance orders, initiating
discontinuation of services, and conducting field checks. Additionally,
the Department proposed several technical, clarifying, and minor edits
throughout Sec. 653.501. As described more fully below, with the
exception of proposed Sec. 653.501(b) and (c), and the addition of a
new severability provision at Sec. 653.504, the Department finalizes
subpart F as proposed.
Section 653.501 Requirements for Processing Clearance Orders
Section 653.501 describes the requirements that SWAs and ES staff
must follow when processing clearance orders for the ARS. In this
section, the Department proposed a new requirement that SWAs consult
the Department's Office of Foreign Labor Certification (OFLC) and WHD
debarment lists before placing job orders into clearance, and initiate
discontinuation of ES services if an employer is so debarred. The
Department also proposed several technical, clarifying, and conforming
amendments. The Department's responses to public comments received on
Sec. 653.501 are set forth below. If a proposed amendment is not
addressed in the discussion below, the public comments did not address
that specific amendment and no changes have been made to the proposed
regulatory text. The Department declines to adopt Sec. 653.501(b) and
(c), and adopts the remaining provisions in Sec. 653.501 as proposed.
Regarding proposed Sec. 653.501(b) and (c), the Department
proposed to add a fourth paragraph to Sec. 653.501(b), at Sec.
653.501(b)(4), which would require ES staff to consult the Department's
OFLC and WHD debarment lists before placing a job order into intrastate
or interstate clearance and initiate discontinuation of ES services if
the employer is debarred or disqualified from participating in one or
all of the Department's foreign labor certification programs.
Additionally, the Department proposed minor edits to Sec.
653.501(c)(3) to clarify that paragraph (c) sets forth a list of the
assurances that an employer must make before the SWA may place a job
order into intrastate or interstate clearance.
The Department appreciates the views and recommendations of
commenters that supported and opposed the proposed changes to Sec.
653.501(b). The Department notes that on September 15, 2023, the
Department published the ``Improving Protections for Workers in
Temporary Agricultural Employment in the United States'' NPRM (the
[[Page 82709]]
``Farmworker NPRM'') in the Federal Register. (88 FR 63750). In the
Farmworker NPRM, the Department proposed changes to paragraphs
653.501(b) and (c), which intersect with changes that were proposed in
the NPRM for this rule (87 FR 23700). As discussed in the Farmworker
NPRM, where the proposed changes in the Farmworker NPRM intersect or
conflict with the proposed changes in this rule, the Department will
utilize the Farmworker NPRM as the operative rulemaking proceeding to
provide notice and opportunity to comment. The Department sees this as
the most transparent approach to address this overlap, and the best way
to minimize confusion within the regulated community while ensuring the
public has a full opportunity to receive notice and provide comments on
the proposed changes. Accordingly, as any changes to Sec. 653.501(b)
and (c) will be made through the Farmworker NPRM, the Department
declines to finalize Sec. 653.501(b) and (c) as proposed.
Comment: The Department notes that a State government agency
recommended that, in Sec. 653.501(b)(2), the Department remove the
requirement to suppress employer information in clearance orders. The
commenter stated that doing so would provide the same transparency to
interested workers as that presently afforded when viewing the same
clearance orders on the Department's SeasonalJobs.gov site and would
remove a barrier for MSFWs that is not faced by non-agricultural job
seekers viewing job order information. The commenter said this change
would not only align its agricultural recruitment process with that of
DOL but also benefit domestic agricultural workers through ready,
unfettered access to the same H-2A employer information in the State
Agricultural Reporting System as is available through SeasonalJobs.gov.
Response: As the Department did not propose changes to Sec.
653.501(b)(2), the State government agency's recommendation is outside
the scope of this rulemaking and the Department declines to adopt it.
Section 653.503 Field Checks
Section 653.503 describes the requirements that SWAs and ES staff
must follow when conducting field checks. In this section, the
Department proposed to revise Sec. 653.503(a) to add
``transportation'' to the list of conditions that SWAs must assess and
document when performing a field check. The Department also proposed to
remove the word ``random'' from the existing requirement in Sec.
653.503(a) that SWAs ``must conduct random, unannounced field checks''
on clearance orders, to clarify that the selection of the clearance
orders on which the SWA will conduct field checks does not need to be
random, and may respond to known or suspected compliance issues. The
Department adopts Sec. 653.503 as proposed.
Comment: Regarding transportation, a State government agency
opposed the proposal to add transportation to the list of conditions
that SWAs must assess and document when performing a field check. The
agency stated that ES staff are not experts on vehicle-related
technical matters and should not be expected to have this level of
responsibility. The agency asked the Department to clarify whether ES
staff would be expected to check on the type of transportation provided
by the employer or to assess the safety and maintenance of the
transportation used. If the latter, the agency recommended that WHD
provide appropriate training to assess transportation during field
checks.
Response: The Department appreciates the concern and recommendation
raised. In the NPRM, the Department proposed to add ``transportation''
to the list of conditions that SWAs must assess and document when
performing a field check to ``increase health and safety of MSFWs by
adding an additional safeguard against dangerous transportation tied to
their employment.'' The Department clarifies that by adding the term
``transportation,'' it means the specific transportation terms
described at Sec. 653.501. The Department is not requiring ES staff to
assess the safety or maintenance of transportation used. However, as
with any employment-related law, if while conducting a field check, ES
staff observe or receive information, or otherwise have reason to
believe that an employer is violating an employment-related law--such
as the transportation safety standards enforced by WHD--ES staff must
document and process this information in accordance with Sec.
653.503(d).
Comment: Regarding the proposal to remove the word ``random'' from
the existing requirement that SWAs ``must conduct random, unannounced
field checks,'' many commenters, including State government agencies,
advocacy organizations, think tanks, and several labor unions supported
the revision, uniformly stating that it ensures that MSFW working and
housing conditions meet basic standards. A State government agency
supported the proposed change but requested that the Department clarify
in the rule or guidance either the circumstances that warrant targeted
field checks or the responsibility of States to define the
circumstances in policy.
Response: The Department appreciates the commenters' support for
this proposed change. As noted in the NPRM, the Department believes
that removal of the word ``random'' will improve MSFW protections by
allowing SWAs and ES staff to conduct field checks where there are
known or suspected compliance issues. Regarding the request for
clarification on the circumstances that warrant targeted field checks,
the Department clarifies that the circumstances must relate to the
terms and conditions on the clearance order. Thus, where it is known or
suspected that wages, hours, and working and housing conditions are not
being provided as specified in the clearance order, a targeted field
check may be warranted. The Department will issue guidance on this
proposed change.
Section 653.504 Severability
Given the numerous and varied changes the Department proposed and
is adopting, the Department intends this rule to be severable and is
including a severability provision in parts 652, 653, and 658 in this
final rule. That intent was reflected in the structure of and
descriptions in the proposed rule. The inclusion of severability
provisions in this final rule confirms the Department's belief that the
severance of any affected provision will not impair the function of the
regulation as a whole and that the Department would have proposed and
implemented the remaining regulatory provisions even without any
others. To the extent that a court holds any provision, or any portion
of any provision, of part 653 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 will be severable from
this part and will not affect the remainder thereof.
E. Part 658--Administrative Provisions Governing the Wagner-Peyser Act
Employment Service
Part 658 sets forth systems and procedures for complaints,
monitoring for compliance assessment, enforcement, and sanctions for
violations of the ES regulations and employment-related laws, including
discontinuation of services to employers and decertification of SWAs.
The Department proposed several revisions to part 658, including
removing the requirement that SMAs serve as
[[Page 82710]]
Complaint System Representatives or have any direct role in the
Complaint System process, and clarifying the procedures for processing
complaints alleging discrimination or reprisal for protected activity.
Additionally, the Department proposed revisions throughout part 658 to
conform with existing and proposed language in parts 651 and 653, make
non-substantive technical edits, remove redundancies, and clarify terms
and requirements. The Department's responses to public comments
received on part 658 are set forth below. The Department did not
receive comments on Sec. Sec. 658.419, 658.420, and 658.422 in
subparts E, G, and H. The Department is finalizing subparts E, G, and H
as proposed.
Of note, the Department proposed several revisions to the
discontinuation of services provisions in subpart F (Sec. Sec. 658.500
through 658.504). The Department proposed to amend the bases for
discontinuation to include an employer's debarment or disqualification
from participating in one of the Department's foreign labor
certification programs; to amend the notification procedures to
require, where applicable, that SWAs specify the time-period of an
employer's debarment or disqualification; and to correct cross-
referencing errors in the regulatory text. The Department received
comments supporting the proposed changes, but on September 15, 2023,
the Department issued an NPRM regarding improved protections for
workers in temporary agricultural employment (the ``Farmworker NPRM'').
88 FR 63750. In the Farmworker NPRM, the Department proposed further
changes to the discontinuation of services provisions, which intersect
and, in some instances, conflict with changes that were proposed in the
NPRM for this rule (87 FR 23700). As discussed in the Farmworker NPRM,
where the proposed changes in the Farmworker NPRM intersect or conflict
with the proposed changes in this rule, the Department will utilize the
Farmworker NPRM as the operative rulemaking proceeding to provide
notice and opportunity to comment. The Department sees this as the most
transparent approach to address this overlap, and the best way to
minimize confusion within the regulated community while ensuring the
public has a full opportunity to receive notice and provide comments on
the proposed changes. Accordingly, as any changes to the
discontinuation of services provisions will be made through the
Farmworker NPRM, the Department declines to finalize subpart F as
proposed.
1. Subpart E--Employment Service and Employment-Related Law Complaint
System (Complaint System)
Subpart E covers the purpose and scope of the Complaint System, and
the requirements for processing complaints at the local, State, and
Federal levels. The Department's responses to public comments received
on subpart E are set forth below. If a proposed amendment to subpart E
is not addressed in the discussion below, the public comments did not
address that specific amendment and no changes have been made to the
proposed regulatory text. With the exception of a new severability
clause, the Department adopts subpart E as proposed.
Comment: Several one-stop center representatives stated they
support utilization of a complaint system but questioned who will take
incoming complaints when ES staff have been reassigned to UI claims.
A farmworker advocacy organization discussed the need for major
procedural reforms to the Complaint System, beyond the modifications
set forth in the proposed rule, if it is to be an effective tool for
farmworkers to vindicate their rights. The organization asserted that
the proposed subpart E ignores fundamental flaws at the heart of the
Complaint System. Regarding complaints filed against employers, the
organization stated that the Complaint System is often just a slower,
more cumbersome means to reach another agency, like WHD or EEOC, and
that farmworkers generally are better served by filing their complaints
directly with those agencies. Regarding complaints filed against SWAs,
the organization stated that the ES complaint process is a ``byzantine
maze'' that can take years to navigate and may involve multiple levels
of adjudication. Citing Sec. 658.421(g) and examples of recent cases,
the organization stated that the current process eventually reaches the
Office of Administrative Law Judges (OALJ), but only after typically at
least 2 years of litigation in which a complainant often does not
understand the process or their rights, before State-level officials
without expertise in the ES system or farmworker issues, and with
little chance of systemic relief. The organization recommended that the
Department allow workers direct appeal from the SWA to the OALJ, which
it said would be analogous to how employers appeal foreign labor
certification decisions at Sec. 655.171. The organization stated that
the Department should treat employers and workers the same, and that
just as growers are allowed to appeal decisions under the labor
certification regulations directly from the OFLC to the OALJ, the
Department should allow workers to appeal ES complaints directly from
the SWA to the OALJ.
Response: The Department clarifies that while it proposed to
require States to use merit staff, in part so that States may leverage
ES staff for UI, SWAs must still ensure there are adequate Complaint
System Representatives to process complaints at all times. The
Department further clarifies that complainants are not required to
bring employment-related law complaints through the Complaint System;
they may file employment-related law complaints directly with the
appropriate enforcement agencies. Nevertheless, SWAs and the Department
have an interest in tracking employment-related law complaints as SWAs
are required to accept, informally resolve (where appropriate), and
refer incoming employment-related law complaints to appropriate
enforcement agencies. Additionally, SWAs and the Department have an
interest in quickly and efficiently resolving ES-related complaints.
The proposed revisions are designed to strengthen training, monitoring,
and internal controls so that the Complaint System can more effectively
and quickly resolve ES-related complaints at the local level, and
quickly resolve violations to the benefit of complainants.
The Department agrees with ensuring an efficient Complaint System
but disagrees with the recommendation to allow workers to appeal ES
complaints directly from SWAs to the OALJ. The Department notes that
the OALJ only resolves Federal administrative disputes before
Departmental agencies (e.g., ETA, OFLC), and does not resolve disputes
before State agencies (e.g., SWAs). Consequently, the Complaint System
only allows for appeal to the OALJ following a formal determination
from an RA and does not contemplate direct appeal of a SWA decision to
the OALJ. The Department, therefore, declines to adopt this
recommendation.
Section 658.410 Establishment of Local and State Complaint Systems
Section 658.410 describes procedures that SWAs and ES Offices must
follow in establishing and maintaining local and State complaint
systems. In this section, the Department proposed to remove the
requirement in Sec. 658.410(h) that the SMA be the Complaint System
Representative designated to handle MSFW complaints and replace it with
a provision prohibiting the State Administrator from assigning the SMA
responsibility for doing so. Relatedly,
[[Page 82711]]
the Department proposed to revise Sec. 658.410(m) to replace ``SMA''
with ``Complaint System Representative,'' thereby removing the SMA from
responsibility for conducting monthly follow-up on MSFW complaints.
The Department also proposed several technical, clarifying, and
conforming amendments. For example, in Sec. 658.410(g), the Department
proposed to remove the word ``local,'' which comes before ``ES office''
in the existing regulatory text, because ``ES Office'' is a defined
term and removal of the word ``local'' clarifies that the regulatory
text is not referring to a different type of ES Office. For that
change, the NPRM preamble clearly explained that the Department was
proposing to remove ``local,'' but the proposed regulatory text
inadvertently retained the word. The Department adopts the text of
Sec. 658.410(g) as described in the NPRM preamble. Aside from that
change, the Department adopts the regulatory text of Sec. 658.410 as
proposed.
Comment: Regarding the proposed amendments to Sec. 658.410(h), to
prohibit the SMA from being assigned to be the Complaint System
Representative, a State government agency supported the changes,
stating that they would allow the SMA to maintain a neutral stance and
create balance within the ES program and could enhance the Complaint
System and improve program monitoring and compliance. Similarly, an
anonymous commenter described the removal of the SMA from the Complaint
Specialist role as a ``smart call'' that leaves less opportunities for
``unwanted liabilities.'' In contrast, another State government agency
said that removing the SMA from involvement in direct complaint system
activities removes the staff member with the greatest expertise in
understanding the complexities of the MSFW population and available
resources from the complaint-taking process. Regarding the proposed
amendment to Sec. 658.410(m), the same agency stated that requiring
the Complaint System Representative, and not the SMA, to follow up
monthly on the processing of MSFW complaints would decentralize the ES
Complaint System follow-up process; require additional time, effort,
and coordination with enforcement agencies; and could entail challenges
in enforcement agencies responding to ES staff requests.
Regarding the proposed amendment to Sec. 658.410(g), two one-stop
center employees opposed the proposed revision but did not state any
specific concern with the proposed removal of the word ``local'' from
the regulatory text. The employees stated generally that their local
Complaint System representatives receive annual training from the SMA
regarding the Complaint System. A farmworker advocacy organization
supported the proposed amendments to Sec. 658.410, in part. The
organization stated that while it generally supports having the SMA
oversee the Complaint System (rather than serve as the initial
complaint recipient), ES complaints (versus complaints involving
employment- or discrimination-related laws) still should go to the SMA
first. The organization stated that ES complaints allege the type of
``within-agency'' problems that SMAs are charged with correcting, and
are the only avenue for worker communications with SMAs that guarantee
a written response. The organization further stated that Complaint
System Representatives may lack the authority, information access, or
confidence in their position to sufficiently address complaints
alleging legal violations by their supervisors. The organization
acknowledged that leaving SMAs in charge of responses to ES complaints
limits their ability to meaningfully oversee the Complaint System, but
stated that the benefits of doing so overshadow this concern; and that
such concern is mitigated by the fact that ES complaints are relatively
rare.
Response: Regarding the concern that removing SMAs from direct
involvement in the Complaint System removes the staff member with the
greatest MSFW expertise and resources from the complaint-taking
process, the Department notes that the existing regulations require
that all Complaint System representatives--SMAs or otherwise--be
trained on handling MSFW complaints. Accordingly, the Department
believes that the existing regulations provide for sufficient expertise
among non-SMA representatives to process MSFW complaints. Additionally,
the Department notes that a SMA's expertise is not lost by removing the
SMA from direct involvement in the Complaint System. Monitoring
activities allow for SMAs to share and apply their expertise throughout
the entire Complaint System, rather than on a complaint-by-complaint
basis. One such example is mentioned in the comments: two one-stop
center employees stated that their Complaint Service Representatives
receive annual training by the SMA on the Complaint System. Removing
the SMA from direct involvement in the System will, the Department
believes, allow SMAs to focus their expertise on monitoring activities
that impact the Complaint System and MSFWs much more broadly.
Regarding the concern that removing the SMA from conducting monthly
follow-up on MSFW complaints would decentralize the Complaint System
follow-up process, the Department notes that existing regulations
already require SWAs to have trained Complaint System Representatives
at each ES office and that, in practice, many SWAs already have
trained, non-SMA Complaint System Representatives. Regarding the
concern that removing the SMA would require additional time, effort,
coordination, and communication challenges with enforcement agencies,
the Department respectfully disagrees. The Department believes that the
Complaint System Representatives are best positioned to follow up on
the complaints they process--both with the enforcement agencies to
which they have made referrals and with the complainant with whom they
have already communicated directly. Additionally, the Department
believes there are distinct benefits in having staff other than the SMA
trained in processing MSFW-related complaints, most notably the
increased staff capacity to process MSFW-related complaints quickly and
efficiently.
Regarding the recommendation that incoming ES complaints should
still go to the SMA first, the Department notes that the SMA's primary
role in the Complaint System is to monitor and report on its
compliance, advocate for improvements to the system, and liaise among
partners to support effective functioning of the system. The proposed
amendments are meant to ensure separation of duties between SMAs and
other ES staff roles. The Department believes that it cannot ensure
full separation of duties by requiring SMAs to maintain direct
responsibility for handling ES complaints. The Department understands
the concern that non-SMA Complaint System Representatives may lack
confidence to sufficiently address complaints alleging ``within-
agency'' violations of the ES regulations, such as violations by their
supervisors, but notes that such issues may be addressed through
training, including training by the SMA. SMAs will remain available to
advise Complaint System Representatives and to report any patterns of
unaddressed complaints directly to SWA leadership. Therefore, the
Department believes that the benefits of ensuring full separation of
duties for SMAs outweigh the concerns raised. The Department declines
to adopt this recommendation.
[[Page 82712]]
Section 658.411 Action on Complaints
Section 658.411 describes the actions that SWAs and ES Offices must
take in receiving and processing complaints filed in the Complaint
System. The Department proposed several changes to this section,
including broadening the scope of contact methods complainants may
provide when filing complaints to include ``any other helpful means'';
removing language requiring SMAs to taking direct actions--such as
making determinations and referrals--on complaints; broadening Sec.
658.411(c) to apply to all complaints alleging discrimination and
reprisal; and requiring SWAs and ES offices to refer discrimination and
reprisal complaints to their State-level E.O. Officer. The Department
also proposed several technical, clarifying, and conforming amendments.
For the reasons discussed in the NPRM and below, the Department adopts
Sec. 658.411 as proposed.
Comment: A State government agency commended the Department for
broadening the scope of contact methods complainants may provide when
filing complaints to include social media and other applications.
Another State government agency agreed with removing the SMA from
taking direct actions on complaints, stating that SMAs need not play a
prominent role in the Complaint System given the many entities already
involved in capturing and responding to complaints, and noting that
SMAs provide great value--as part of their monitoring duties--in
reviewing complaints to ensure they are logged and addressed
appropriately. A farmworker advocacy organization recommended that the
Department further amend Sec. 658.411 to require that, upon receipt of
complaints, SWAs and ES offices immediately advise complainants of
their option to work with an attorney to resolve their claims and
provide complainants contact information for legal services.
The Department received several comments specific to Sec.
658.411(c). A State government agency stated that it agreed with the
intent to simplify the process for handling discrimination- and
reprisal-related complaints under Sec. 658.411(c) but that the
revisions, as proposed, do not clarify the complaint process. A
farmworker advocacy organization supported the increased role of State-
level E.O. Officers in addressing complaints related to discrimination
and retaliation, but expressed concern that State-level E.O. Officers
may lack knowledge of certain farmworker-related laws, such as the
Migrant and Seasonal Agricultural Worker Protection Act (MSPA) and the
H-2A regulations. The organization recommended that the regulations
require State-level E.O. Officers to receive training in all of these
relevant areas.
Three commenters opposed the proposed changes to Sec. 658.411(c).
Two one-stop center employees stated that the section needs more
clarification on the actions for complaints received from different
sectors, such as MSFW complaints, Wagner-Peyser funded service
complaints, and universal public complaints regarding work situations
that are not serviced by the public workforce system. Additionally, a
State government agency stated that referring all discrimination- and
reprisal-related complaints to the State-level E.O. Officer adds
another level of delay to the complaint referral process, which may
bottleneck the complaint process and slow down an investigation and is
contrary to the Department's efforts to eliminate delay elsewhere in
the complaint process (i.e., by removing the SMA from the process).
Rather than refer the complaints only to State-level E.O. Officers, the
agency recommended that ES staff include the State-level E.O. Officer
when referring complaints to the EEOC and other relevant agencies.
Additionally, the agency recommended removing the language that
requires ES staff to know the types of nondiscrimination law
complaints. The agency also described confusion within the one-stop
system regarding tracking and handling MSFW, Title I, and Title III
one-stop operation complaints, and requested that the Department
provide technical assistance on this topic.
Response: Regarding the recommendation that SWAs and ES offices
advise complainants of their option to work with an attorney to resolve
to resolve their claims, the Department notes that existing regulations
at Sec. 658.400 already provide that a complainant may designate an
individual to act as their representative before the Complaint System,
and ETA Form 8429 (``Complaint/Apparent Violation Form'') notifies
complainants of this option. Additionally, for complaints alleging
violations of employment-related laws, existing regulations at Sec.
658.411 already provide that complaint representatives must refer non-
MSFW complaints involving employment-related laws, as well as MSFW
complaints involving employment-related laws that are not informally
resolved, to appropriate organizations, including legal aid or other
consumer advocate organizations, as appropriate, for assistance.
Regarding the related recommendation that SWAs and ES offices provide
complainants contact information for legal services, the Department
declines to adopt this recommendation as a requirement. The Department
notes that SWAs must already provide information on organizations
servicing MSFWs as part of their outreach responsibilities at Sec.
653.107. Such organizations may include, for example, grantees of the
Legal Services Corporation, a non-profit corporation established by
Congress that provides grants to local organizations to provide legal
services for agricultural workers and others who would be otherwise
unable to afford adequate legal counsel. As to the Complaint System
specifically, the Department does not wish to create the appearance of
SWAs endorsing any legal services organization over others by requiring
that SWAs affirmatively provide contact information for certain legal
services organizations in the complaint process, but it does not
prohibit SWAs from providing such contact information at their
discretion.
The Department believes that the existing regulations sufficiently
notify complainants of their options regarding legal representation.
The Department is concerned that adding further requirements for SWAs
could mislead complainants to think that legal representation is
required to file a complaint with the SWA and would not comport with
the SWA's role as neutral processor in the Complaint System.
Accordingly, the Department declines to adopt these recommendations.
Regarding the concern that State-level E.O. Officers may lack the
training needed to recognize retaliation under farmworker-related laws,
such as MSPA and the H-2A regulations, and the related recommendation
that State-level E.O. Officers receive training in this regard, the
Department notes that the Wagner-Peyser regulations do not govern
requirements for State-level E.O. Officers; these requirements,
including the requirement that E.O. Officers and their staff be
afforded the opportunity to receive necessary and appropriate training,
are found at 29 CFR 38.28 through 38.33. As the operative regulations
for the recommended training are outside the scope of this rulemaking,
the Department declines to adopt this recommendation.
Regarding the concern that referring all discrimination- and
reprisal-related complaints to the State-level E.O. Officer adds
another level of delay to the complaint referral process, and the
related recommendation that the Department instead require ES staff
include the State-level E.O. Officer when referring complaints to the
EEOC and other relevant agencies, the
[[Page 82713]]
Department declines to adopt this recommendation. The Department
believes that its proposed changes simplify, streamline, and prevent
delays by the Complaint System in the referral process by allowing
complaint representatives to promptly refer discrimination and
reprisal-related complaints to the State-Level E.O. Officer, who is
best equipped and positioned to direct such complaints to appropriate
enforcement agencies. Because the State-level E.O. Officer is
responsible for State Program-wide coordination of compliance with the
equal opportunity and nondiscrimination requirements in WIOA, it is
appropriate for the State-level E.O. Officer to receive all
discrimination-related complaints. Additionally, the proposed changes
simplify the referral process so that referrals may occur more quickly
and reliably to one identified State-level E.O. Officer, instead of
requiring complaint representatives to identify one of several referral
options. The State-level E.O. Officer is best suited to determine which
nondiscrimination laws are at issue. The proposed changes therefore
improve the effectiveness and accuracy of discrimination complaint
processing to the benefit of complainants.
Regarding several commenters' general concern that the proposed
changes to Sec. 658.411(c) do not clarify the complaint process as it
relates to discrimination and reprisal-related complaints, and that
additional clarification is needed on processing complaints received
from different sectors (e.g., MSFW complaints, Wagner-Peyser funded
service complaints, and complaints not serviced by the public workforce
system), the Department notes that the proposed changes purposefully
simplify the process so that complaint representatives must immediately
refer all discrimination-related complaints to the State-level E.O.
Officer. As previously mentioned, the State-level E.O. Officer is best
suited to make determinations on applicable nondiscrimination laws. The
SWA complaint representative will not need to make determinations
regarding the type of alleged discrimination and applicable laws.
Regarding the comment that reported confusion within the one-stop
system regarding tracking and handling MSFW, Title I, and Title III
one-stop operation complaints, and requested the Department provide
technical assistance on this topic, the Department plans to provide
further technical assistance. The Department notes that the existing
regulations at Sec. 658.400(b) state that complaints alleging
violations under WIOA title I programs 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.
Section 683.600 describes local area, State, and direct recipient
grievance procedures under WIOA title I.
Regarding the recommendation to remove language requiring ES staff
to know the types of nondiscrimination laws at issue, the Department
believes that the proposed changes are in line with this
recommendation, as sending all discrimination complaints to the State-
level E.O. Officer recognizes that State-Level E.O. Officers--and not
complaint representatives--are best positioned to determine the
applicable nondiscrimination laws and the agency to which complaints
should be referred. Additionally, the proposed changes provide examples
of the types of discrimination complaints that SWA staff may receive
(e.g., EEOC and DOL Civil Rights Center (CRC) complaints, and
complaints under the Immigration and Nationality Act), but do not
require SWA staff to know all nondiscrimination laws that may be at
issue.
The Department appreciates commenters' concerns and
recommendations. The Department believes that the proposed changes
provide a straightforward, streamlined process for handling
discrimination and reprisal-related complaints and--by utilizing the
State-level E.O. Officer--ensure that such complaints are promptly and
properly referred to the appropriate enforcement agency.
Section 658.419 Apparent Violations
The Department proposed several clarifying revisions to Sec.
658.419(a). First, the Department proposed to update Sec. 658.419(a)
to replace the words ``a SWA, an ES office employee, or outreach
staff'' with ``an ES staff member'' to conform with proposed revisions
to ES staff at Sec. 651.10. It is not necessary to specifically refer
to ``outreach staff'' in this section, because the definition of
outreach staff means ES staff with the responsibilities described in
Sec. 653.107(b). This change will make Sec. 658.419 more clear
because the regulatory text will use the term ES staff uniformly.
The Department also proposed changing the second reference to a
``suspected violation'' in Sec. 658.419(a) to ``apparent violation''
for clarity. In addition, the Department proposed adding a sentence to
Sec. 658.419(a) to clarify that the apparent violation must be
documented in the Complaint System log as described at Sec. 658.410.
Finally, the Department proposed to add a sentence at the end of
Sec. 658.419(a) to clarify that when an apparent violation involves
alleged violations of nondiscrimination laws, it must be processed
according to the procedures described in Sec. 658.411(c)--that is, it
must be logged and immediately referred to the State-level E.O.
Officer.
The Department did not receive any comments on this section.
However, the Department is making additional changes to Sec. 658.419
to be consistent with the definition of apparent violation that this
final rule adopts in Sec. 651.10, which refers to suspected violations
that an ES staff member observes, has reason to believe, or which the
staff member is in receipt of information regarding. The final rule
also revises the existing regulatory text ``except as provided at Sec.
653.503 of this chapter (field checks) or Sec. 658.411 (complaints)''
to state more clearly ``except as part of a field check under provided
at Sec. 653.503 of this chapter.'' This phrasing is meant to more
clearly state that the apparent violations processed as directed by
Sec. 658.419 are those that an ES staff observes, has reason to
believe, or about which they receive information other than through
field checks. The definition of apparent violations adopted by this
final rule makes clear that the term does not include complaints.
Furthermore, the final rule retains the language proposed in the
NPRM at Sec. 658.419 that clarifies the ES Office Manager must
document apparent violations in the Complaint System log as described
at Sec. 658.410, with the slight revision that the ES Office Manager
must ensure that they are documented in the log. Finally, the final
rule adopts the proposed text that apparent violations of
nondiscrimination laws must be processed according to the procedures
described in Sec. 658.411(c), but for clarity moves this text into a
separate paragraph (d) added at the end of Sec. 658.419.
Section 658.420 Responsibilities of the Employment and Training
Administration Regional Office
The Department proposed several revisions to Sec. 658.420. First,
the Department proposed to revise Sec. 658.420(b)(1) to provide that
if an ETA regional office receives a complaint alleging violations of
nondiscrimination laws, then the complaint must be logged and
immediately referred to the appropriate State-level E.O. Officer(s).
This revision simplifies the process for referring nondiscrimination
complaints
[[Page 82714]]
and provides clear instruction to ETA regional staff and task State-
level E.O. Officers, who have appropriate expertise in determining how
nondiscrimination complaints should be handled and by whom.
Second, the Department proposed removing existing Sec.
658.420(b)(2), which addresses complaints alleging discrimination on
the basis of genetic information, because such complaints would fall
under the simplified procedures set forth in proposed Sec.
658.420(b)(1). Third, the Department proposed making several revisions
to conform with this deletion--namely, to move the text in existing
Sec. 658.420(c) to Sec. 658.420(b) and remove all references to
paragraph (b)(2) in this section.
Finally, the Department proposed revising Sec. 658.420(c) to
clarify that when an ETA regional office receives an employment-related
law complaint under this subsection, it should process the complaint in
accordance with Sec. 658.422. The existing regulation incorrectly
references Sec. 658.411, which provides complaint processing
procedures for ES offices and SWAs (and not ETA regional offices).
The Department did not receive comments on this section and
finalizes these revisions as proposed.
Section 658.422 Processing of Employment-Related Law Complaints by the
Regional Administrator
The Department proposed several revisions to Sec. 658.422. First,
the Department proposed to revise paragraph (a) to clarify that this
section applies to all ``employment-related law'' complaints submitted
directly to the RA or their representative. Second, the Department
proposed adding a sentence to the end of paragraphs (b) and (c) to
conform with the proposed revisions to Sec. 658.420(b)(1). In
particular, proposed paragraphs (b) and (c) each include an additional
sentence to specify that when a complaint described in the paragraph
alleges a violation of nondiscrimination laws or reprisal for protected
activity, then it must be referred to the appropriate State-level E.O.
Officer in accordance with Sec. 658.420(b)(1). The Department did not
receive comments on this section and finalizes these revisions as
proposed.
Section 658.427 Severability
Given the numerous and varied changes the Department proposed and
is adopting, the Department intends this rule to be severable and is
including a severability provision in parts 652, 653, and 658 in this
final rule. That intent was reflected in the structure of and
descriptions in the proposed rule. The inclusion of severability
provisions in this final rule confirms the Department's belief that the
severance of any affected provision will not impair the function of the
regulation as a whole and that the Department would have proposed and
implemented the remaining regulatory provisions even without any
others. To the extent that a court holds any provision, or any portion
of any provision, of part 658 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.
2. Subpart G--Review and Assessment of State Workforce Agency
Compliance With Employment Service Regulations
Section 658.602 Employment and Training Administration National Office
Responsibility
The Department proposed amending Sec. 658.602(g) to refer to Sec.
653.108(a) instead of Sec. 653.108(b). This is necessary to correct
the inaccurate citation to Sec. 653.108(b). The Department proposed
amending the introductory text of Sec. 658.602(n) to replace the
phrase ``in the course of'' with the word ``during''. Additionally, the
Department proposed amending Sec. 658.602(n)(1) to replace the phrase
``outreach workers'' with ``outreach staff'' because outreach staff is
a defined term in Sec. 651.10. The Department also proposed amending
Sec. 658.602(n)(2) to remove the word ``random'' from the requirement
for the NMA to participate in field check(s) of migrant camps or work
site(s) where MSFWs have been placed. The proposed revision would
clarify that the selection of migrant camps or work sites for which the
NMA will participate in field checks does not need to be random, and
may be targeted, where necessary, to respond to known or suspected
compliance issues, thereby improving MSFW worker protection. Finally,
the Department proposed amending Sec. 658.602(o) to remove ``(8)''
from the reference to paragraph (f)(8) as a technical edit. Paragraph
(f) of Sec. 658.602 does not have a subordinate paragraph (f)(8). The
Department did not receive any comments on this section and is
finalizing these revisions as proposed.
Section 658.603 Employment and Training Administration Regional Office
Responsibility
The Department proposed amending Sec. 658.603(d)(7) to replace
uses of ``job order'' with ``clearance order.'' The Department also
proposed removing the word ``random'' from the requirement for the RA
to conduct field checks. Finally, the Department proposed adding the
word ``and'' before ``working and housing conditions'' to make clear
that this is a single term that follows wages and hours in the list of
items that must be specified on a clearance order.
Paragraph (i) of Sec. 658.603 addresses RMA training. The
Department proposed amending Sec. 658.603(i) to remove the requirement
that the RMA participate in training sessions approved by the National
Office within the first 3 months of their tenure and replacing it with
a requirement that would require the RMA to participate in training
sessions offered by the National Office and additional training
sessions necessary to maintain competency and enhance their
understanding of issues farmworkers face (including trainings offered
by Occupational Safety and Health Administration (OSHA), WHD, EEOC,
CRC, and other organizations offering farmworker-related information).
The Department also proposed amending Sec. 658.603(p)(1) to replace
``workers'' with ``staff.'' Additionally, the Department proposed
amending Sec. 658.603(p)(2) to remove the word ``random'' so that the
RMA understands that clearance orders selected for a field check do not
need to be selected at random. The Department did not receive any
comments on this section and is finalizing these revisions as proposed.
3. Subpart H--Federal Application of Remedial Action to State Workforce
Agencies
Section 658.702 Assessment and Evaluation of Program Performance Data
The Department proposed amending Sec. 658.702(f)(2) to add
references to the ``RMA'' in two places to clarify that the RA must
notify both the RMA and the NMA when findings and noncompliance involve
services to MSFWs or the Complaint System. Additionally, this proposed
change would require the Final Notification to be sent to the RMA, as
well as the NMA. These changes are necessary for the RMA to be aware of
all ES issues involving MSFWs and the Complaint System, which the RMA
is responsible to monitor in their assigned region. The Department did
not receive comments on this section and finalizes these revisions as
proposed.
Section 658.704 Remedial Actions
The Department proposed amending Sec. 658.704(f)(2) to require
that copies of
[[Page 82715]]
the RA's notification to the SWA of decertification proceedings must be
sent to the RMA and the NMA. The Department also proposed amending
Sec. 658.707(a), which addresses the circumstances in which a SWA may
request a hearing, to specify that any SWA that has received a Notice
of Remedial Action under Sec. 658.707(a) of this subpart may also
request a hearing, and that the SWA may do so by filing a written
request with the RA within 20 business days of the SWA's receipt of the
notice. Finally, the Department proposed adding a reference to the RA
in Sec. 658.707(b), because Sec. 658.704(c) directs the SWA to send
its written request to the RA. The Department did not receive any
comments on this section and adopts these revisions as proposed.
VI. Rulemaking Analyses and Notices
A. Executive Orders 12866 (Regulatory Planning and Review), 13563
(Improving Regulation and Regulatory Review), and 14094 (Modernizing
Regulatory Review) and Subtitle E of the Small Business Regulatory
Enforcement Fairness Act of 1996
Under E.O. 12866, OMB's Office of Information and Regulatory
Affairs (OIRA) determines whether a regulatory action is significant
and, therefore, subject to the requirements of the E.O. and review by
OMB. See 58 FR 51735 (Oct. 4, 1993). Section 1(b) of E.O. 14094 amends
sec. 3(f) of E.O. 12866 to define a ``significant regulatory action''
as an action that is likely to result in a rule that may: (1) have an
annual effect on the economy of $200 million or more (adjusted every 3
years by the Administrator of OIRA for changes in gross domestic
product) or adversely affect in a material way the economy, a sector of
the economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, territorial, or tribal governments
or communities; (2) create a serious inconsistency or otherwise
interferes with an action taken or planned by another agency; (3)
materially alter the budgetary impact of entitlements, grants, user
fees, or loan programs, or the rights and obligations of recipients
thereof; or (4) raise legal or policy issues for which centralized
review would meaningfully further the President's priorities or the
principles set forth in the E.O. See 88 FR 21879 (Apr. 11, 2023). OIRA
has determined that this final rule is a significant regulatory action,
although not a significant regulatory action under sec. 3(f)(1) of E.O.
12866. Accordingly, OMB has reviewed this final rule.
E.O. 13563 directs agencies to propose or adopt a regulation only
upon a reasoned determination that its benefits justify its costs; the
regulation is tailored to impose the least burden on society,
consistent with achieving the regulatory objectives; and, in choosing
among alternative regulatory approaches, the agency has selected those
approaches that maximize net benefits. E.O. 13563 recognizes that some
benefits are difficult to quantify and provides that, where appropriate
and permitted by law, agencies may consider and discuss qualitatively
values that are difficult or impossible to quantify, including equity,
human dignity, fairness, and distributive impacts.
The Department anticipates that the final rule will result in
costs, transfer payments, and benefits for State governments and
agricultural employers. The costs of the final rule will include rule
familiarization and additional information collection for State
governments, as well as transition costs such as recruitment, training,
and technology expenses for the three States (i.e., Delaware, Indiana,
and Missouri) that currently use the staffing flexibility provided in
the 2020 Final Rule and will need to transition to State merit staff
for the provision of all Wagner-Peyser Act labor exchange services.
The transfer payments will include the changes in wages, fringe
benefits, and overhead costs for the staff providing ES services in the
three States that currently use the staffing flexibility provided in
the 2020 Final Rule: Delaware, Indiana, and Missouri.
The benefits of the merit-staffing provisions in the final rule
will include the ability for States to shift staff resources during
future surges in UI claims when time-limited legislative flexibilities
in the delivery of UI services are not available. The Department is
also amending the regulations that govern labor exchange services
provided to MSFWs, the Monitor Advocate System, and the Complaint
System. These amendments will remove redundancies, clarify
requirements, and improve equity and inclusion for MSFWs in the ES
system.
Pursuant to Subtitle E of the Small Business Regulatory Enforcement
Fairness Act of 1996, also known as the Congressional Review Act (5
U.S.C. 801 et seq.), OIRA has designated this rule as not a ``major
rule,'' as defined by 5 U.S.C. 804(2).
1. Public Comments
a. Public Comments on Rule Familiarization Costs
In the NPRM, the Department anticipated that it would take a Human
Resources Manager an average of 1 hour to review the rule and that the
total one-time rule familiarization cost for all 57 jurisdictions (the
50 States, the District of Columbia, Puerto Rico, American Samoa, the
Commonwealth of the Northern Mariana Islands, Guam, the Republic of
Palau, and the U.S. Virgin Islands) would be $4,439 (2020$).
Comment: A State government agency commented that rule
familiarization estimate in the NPRM is too low because, in addition to
a Human Resources Manager, other staff members would need to review the
changes as well.
Response: The Department agrees that additional State staff may
review the rule and that their fully loaded wage rates may be higher or
lower than $82.13 per hour (2022$).\14\ The 1-hour time estimate and
the $82.13 hourly wage estimate are intended to be averages across all
57 jurisdictions. In some States, the combined time for all reviewers
to read the rule may be more than 1 hour, while in other States, the
combined time may be less than 1 hour. Similarly, the average fully
loaded wage rate of the employees who familiarize themselves with the
rule may be higher than $82.13 per hour in some States and lower than
$82.13 per hour in other States. In the absence of supporting data from
the commenter, the Department maintained its 1-hour time estimate and
the $82.13 fully loaded wage rate in the final rule.
---------------------------------------------------------------------------
\14\ In the NPRM, this fully loaded hourly wage estimate was
$77.88 in 2020 dollars.
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b. Public Comments on Transition Costs
The Department had insufficient data to provide estimates in the
NPRM of the potential one-time transition costs (e.g., recruitment,
training, technology expenses) States might incur, so the Department
sought additional input regarding potential transition costs.
Comment: Several commenters argued that the NPRM does not fully
anticipate costs for State governments. A number of commenters,
including multiple form letter campaigns, a Colorado State elected
official, a Colorado State government agency, and a local government,
wrote that the proposed merit-staffing requirement would cost millions
of dollars for States. A Colorado State government agency estimated
that the proposed rule would result in over $7 million in transition
[[Page 82716]]
costs for Colorado and provided a specific breakdown of these costs. A
couple of State government agencies wrote that the proposed rule does
not take into account the costs related to cross-training ES staff for
the UI program. A Colorado local government wrote that under the
proposed rule, half of PY 2023 funds would need to be utilized to
transition and hire new State level staff. A Michigan advocacy
organization wrote that local ES program support allows for efficient
``braided'' funding and, in contrast, the proposed rule would create
siloed services that would increase overall labor costs for States.
Some commenters also argued that the proposed rule would result in
a number of job losses for local staff in ES programs. In particular,
several commenters, including a Colorado local government, a one-stop
operator, and a trade association, stated that the proposed rule would
result in job losses for local staff and provided data on expected
employment reductions to support their claim. Similarly, Massachusetts
and Colorado State government agencies commented that the proposed rule
would result in job losses, given that State merit staff are more
costly than local staff. A trade association wrote that their local
workforce development board would not be able to move forward with
programming for the upcoming year due to anticipated job losses as a
result of the proposed rule. A Colorado State government agency and
other commenters wrote that, in their region, TAA case managers are
provided by local staff, and under the proposed rule these staff
members would need to be rehired and trained.
An association of workforce boards wrote that the proposed rule
would result in job centers closing and programs ending in States that
operate their ES program using flexible staffing models, which would
disproportionately impact rural areas as well as those facing barriers
to employment. Some commenters stated that the proposed rule would
result in service disruptions that would result in States incurring
costs due to negative customer experiences, which would erode trust in
the public workforce system. A State government agency wrote that the
proposed rule would impose resource costs on States, while the national
PY 2022 ES grant funding saw a non-adjusted increase of just 0.6
percent and the State saw a non-adjusted decline of 1.6 percent in its
PY 2022 ES grants.
Response: The Department appreciates commenters' feedback on
potential transition costs. After careful consideration of the comments
received during the public comment period and reassessment of the NPRM,
the Department is permitting the three States with longstanding
reliance interests on using alternative staffing models, Colorado,
Massachusetts, and Michigan, to continue using their alternative
staffing models. The Department acknowledges that three other States
(i.e., Delaware, Indiana, and Missouri) currently using the staffing
flexibility granted under the 2020 Final Rule will incur transition
costs. Without pertinent data, the Department is unable to estimate the
potential transition costs in this final rule. Recognizing that these
States will need time to adjust their staffing models, the Department
is providing 24 months of transition time for all States to comply with
this final rule.
c. Public Comments on Transfer Payments
In the NPRM, the Department anticipated that four States (i.e.,
Colorado, Delaware, Massachusetts, and Michigan) would need to
transition to State merit staff for the provision of all labor exchange
services. The Department estimated that Delaware, Massachusetts, and
Michigan would have a combined total of $10.1 million (2020$) in
annualized transfer payments over the 10-year analysis period.
Comment: Some commenters from Michigan wrote that they believe
transfer payments estimated in the NPRM are too low. Specifically, they
stated that the estimate of 192 full-time equivalents (FTEs) non-State-
merit staff providing ES services is too low because Michigan's Wagner-
Peyser Act-funded staffing is 400, equating to 220 FTEs. These
commenters also asked where the funding for transfer payments would
come from and, if there is not additional funding available, how the
Department would close the gap.
Response: Because the Department is allowing Colorado,
Massachusetts, and Michigan to administer ES services using their
longstanding alternative staffing model, the Department has not sought
updated data from Michigan to estimate the transfer payments associated
with this final rule.
d. Public Comments on Regulatory Alternatives
In the NPRM, the Department analyzed two regulatory alternatives.
Under the first alternative, the Department would return to the pre-
2020 Wagner-Peyser Act regulations, reinstituting the State merit-
staffing requirement for all States except for three States: Colorado,
Massachusetts, and Michigan. Under the second alternative, the
Department would require all States to come into compliance with the
merit-staffing requirement within 30 or 60 days of issuance of the
final rule rather than within 18 months from the effective date of the
final rule.
Comment: Several Michigan, Colorado, and Massachusetts commenters,
including State and local workforce development boards, one-stop center
staff, private citizens, State and local governments, and a Colorado
State elected official, urged the Department to adopt Alternative 1 as
discussed in the NPRM, which would allow Colorado, Michigan, and
Massachusetts to continue operating Wagner-Peyser Act programs with
flexible staffing models. The commenters reasoned that this would allow
their State to continue to operate what they described as innovative,
streamlined, responsive, and effective ES programs. A Massachusetts
local workforce development board and a Massachusetts local elected
official argued that Alternative 1 was the best way to avoid service
interruptions for job seekers and businesses.
To support their request for the Department to select Alternative
1, a Colorado private citizen provided figures from their local one-
stop center to demonstrate the ``local return on investment'' and
economic impact of Wagner-Peyser Act funding, including the estimation
that every $1 of Wagner-Peyser Act funds received translates to $44.80
in value for the community.
Some commenters, including one-stop center employees, a Colorado
local workforce development board, and a Colorado State government
agency, critiqued the Department's mention of alignment with WIOA, and
preference for alignment between ES and UI, when presenting Alternative
1 in the NPRM. A one-stop center employee asserted that Alternative 1
prioritizes UI administration over ES services despite WIOA identifying
priority populations for ES service delivery. A Colorado local
workforce development board argued that there was no justification for
the Department's claim and provided evidence from its local programs,
which it said demonstrates the benefits of alignment between Wagner-
Peyser Act ES and WIOA title I services. The commenter said the
proposal would result in decreased functionality of ES and argued that
this adverse outcome outweighs the benefits of staffing UI during
relatively shorter periods of surge claims.
[[Page 82717]]
A Colorado State workforce development board stated that
prioritizing alignment of ES and UI so that States can provide surge
capacity was not sufficient justification for the Department to discard
Alternative 1 because States using flexible staffing models can provide
surge capacity for UI administration. The commenter said Colorado's
handling of the UI surge during the pandemic affirms county merit
staff's ability to assist during UI surges. A Massachusetts local
workforce development board reacted similarly to the NPRM's discussion
of Alternative 1 and program alignment priorities, arguing that one-
stop center staff in Massachusetts performed ably to support the UI
surge during the pandemic. The commenter said the flexible staffing
arrangements in Massachusetts proved useful during the pandemic, as
well as during other unemployment surges throughout history, and
expressed concern about losing the ability to ``manage the next crisis
locally.''
A Colorado State government agency said the Department's discussion
of Alternative 1 presented a false choice and argued that no studies
exist over the past 14 years that prove the State merit-staffing model
works better than ES staffed by county merit staff. A Colorado local
workforce development board similarly stated that the Department
``dismissed'' Alternative 1 with very little justification and asserted
that the Department has not provided recent studies or data to support
the notion that flexible ES staffing model States perform worse than
States that use only State merit staff to provide ES services. A
Colorado one-stop center employee requested the Department adopt
Alternative 1 and further investigate how ES staff can support UI
services.
Also urging the Department to adopt Alternative 1, a Massachusetts
local workforce development board discussed equity concerns with the
proposal's prioritization of UI services for the recently unemployed
over the needs of the longer-term unemployed and low-income workers who
may need ES services. The commenter discussed historical inequities and
current demographic makeups of these two groups and argued that the UI
population is ``significantly less diverse'' than the rest of the job
seeking population around Boston.
A Colorado State workforce development board, a Colorado State
government agency, and other commenters urged the Department to adopt
Alternative 1 because it would allow for the collection of evaluative
evidence, prevent transfer payments and system disruptions, and
maintain the ability of States with existing State merit ES staff to
cross-train such workers to assist with UI surges. An anonymous
commenter expressed concern about ``eliminating Alternative 1'' because
ending staffing flexibility will result in ``bifurcated'' supervision
for Wagner-Peyser Act workers and inconsistent service delivery. Also
urging the Department to adopt Alternative 1, a Colorado one-stop
operator commented that, if the Department decides against adopting
Alternative 1, Congress should enshrine ES staffing flexibility into
Federal law.
A Michigan State government agency suggested that, in the absence
of additional analysis, the Department should implement the final rule
without making a distinction between State and local merit staff, a
less disruptive alternative that would allow Michigan to continue to
offer ES services at current levels with qualified merit staff. The
commenter argued that the Intergovernmental Personnel Act does not make
a distinction between State and local merit staff, asserting that
Michigan local merit staff are recruited, selected, advanced, and
compensated in a manner consistent with State merit staff. This
commenter opposed the proposal, alleging that it would result in fewer
staff, less responsive customer service, and fewer ES locations across
Michigan. The commenter requested that the Department conduct a
specific, comprehensive, and independent analysis using up-to-date
employment program, performance, and economic indicators to justify any
changes to longstanding, successful delivery models like the one used
in Michigan. The commenter said it had identified several of the
proposal's anticipated adverse impacts during the current comment
period and stated that the Department would ``confirm and expand'' upon
these findings if it conducted an analysis.
A State government agency and a Massachusetts local workforce
development board supported an ongoing exemption from the State merit-
staffing requirement for the original demonstration States (Colorado,
Massachusetts, and Michigan) but suggested that no additional States
should receive such an exemption.
Response: After careful consideration of the comments received
during the public comment period and reassessment of the NPRM, the
Department has decided to permit three States with strong reliance
interests--Colorado, Massachusetts, and Michigan--to continue using
their approved longstanding staffing model to deliver ES services. In
the 1990s, as part of a demonstration, the Department permitted
Colorado and Michigan to use a combination of local and State merit-
staffing and permitted Massachusetts to use non-merit staff in four of
sixteen local areas for ES service delivery. During the comment period,
these three States provided information about the service disruption
that would result from having to upend their longstanding service
delivery models. However, the initial justifications and data presented
do not provide clear evidence of causation. Without evidence that
alternative staffing models directly cause higher employment outcomes,
balanced against widespread success in delivering services while
maintaining State merit staff for ES, and further balanced by the need
for ES State merit staff to be available for surges in UI claims and
appeals, the Department is generally adopting the proposed requirement
that States use State merit staff to provide ES services. The
Department has determined that reinstating the requirement to provide
ES services using State merit staff will help to allow the States to
provide quality and consistent ES services in an accountable and
transparent manner as we undertake an evaluation to determine whether
alternative staffing models are empirically supported. All other States
will have 24 months to comply with the rule's requirement to use State
merit staff to provide ES services.
2. Costs
The Department anticipates that the rule will result in costs
related to rule familiarization, staff transition, and information
collection.
a. Rule Familiarization Costs
Regulatory familiarization costs represent direct costs to States
associated with reviewing the new regulation. The Department's analysis
\15\ anticipates that the changes introduced by the rule will be
reviewed by Human Resources Managers (SOC code 11-3121) employed by
SWAs. The Department anticipates that it will take a Human Resources
Manager an average of 1 hour to review the rule.
---------------------------------------------------------------------------
\15\ This analysis uses codes from the Standard Occupational
Classification (SOC) system and the North American Industry
Classification System (NAICS).
---------------------------------------------------------------------------
The U.S. Bureau of Labor Statistics (BLS) Occupational Employment
and Wage Statistics data show that the median hourly wage of State
government Human Resources Managers
[[Page 82718]]
is $45.88.\16\ The Department used a 62-percent benefits rate \17\ and
a 17-percent overhead rate,\18\ so the fully loaded hourly wage is
$82.13 [= $45.88 + ($45.88 x 62%) + ($45.88 x 17%)]. Therefore, the
one-time rule familiarization cost for all 57 jurisdictions (the 50
States, the District of Columbia, Puerto Rico, American Samoa, the
Commonwealth of the Northern Mariana Islands, Guam, the Republic of
Palau, and the U.S. Virgin Islands) is estimated to be $4,681 (= $82.13
x 1 hour x 57 jurisdictions).
---------------------------------------------------------------------------
\16\ BLS, ``Occupational Employment and Wage Statistics,
National Industry-Specific Occupational Employment and Wage
Estimates, NAICS 999200,'' SOC Code 11-3121, May 2022, https://www.bls.gov/oes/current/naics4_999200.htm (last visited May 16,
2023).
\17\ BLS, ``National Compensation Survey, Employer Costs for
Employee Compensation,'' https://www.bls.gov/ncs/data.htm (last
visited May 16, 2023). For State and local government workers, wages
and salaries averaged $34.88 per hour worked in 2022, while benefit
costs averaged $21.51, which is a benefits rate of 62 percent.
\18\ Cody Rice, U.S. Environmental Protection Agency, ``Wage
Rates for Economic Analyses of the Toxics Release Inventory
Program,'' June 10, 2002, https://www.regulations.gov/document/EPA-HQ-OPPT-2014-0650-0005 (last visited May 16, 2023).
---------------------------------------------------------------------------
b. Transition Costs
Three States would potentially incur one-time costs associated with
this rule's merit-staffing requirement. Delaware currently has some
non-State-merit staff who provide labor exchange services, as explained
in the NPRM. Additionally, based on comments received and their State
plans, Indiana and Missouri also have non-State-merit staff providing
ES services. These three States may incur transition expenses, such as
recruitment, training, or technology costs, as well as costs related to
the State budgeting process. Moreover, job seekers and employers in
these States may experience nonquantifiable transition costs associated
with service interruptions during the time period in which the States
are making staff changes to comply with the provisions of this rule.
In its comments on the NPRM, Delaware stated that ``the proposed
rule change will take away funding for 13 total contractual staff.''
The Delaware Department of Labor explained that its Division of
Employment and Training has 8 FTE Wagner-Peyser contractual staff
funded at 100 percent, and 5 contractual FTEs partially charged to
Wagner-Peyser who are assigned to provide ES services. The State
anticipates that the decrease in staffing would have a negative impact
on the quality and delivery of ES services, and that it would cause an
added workload on merit staff, potentially adversely affecting staff
morale. Delaware explained the steps it would need to take to obtain
additional State FTEs, estimating that the process would take at least
24 months and that there is no certainty that the positions would be
approved by Delaware's Joint Finance Committee, its Governor, and OMB.
In its PY 2022 State plan, Indiana indicated that it would evaluate
potential changes to its staffing models over the next several years in
light of the flexibility provided in the 2020 Final Rule. In its
comments on the NPRM, the Indiana Department of Workforce Development
stated that one of the primary ways Indiana was able to respond to
changing conditions during the COVID-19 pandemic was with the staffing
flexibility provided in the 2020 Final Rule and the temporarily
staffing flexibility provided by the CARES Act. Indiana explained that
the staffing flexibility allowed it ``to retain temporary,
intermittent, and contractor staff to augment existing State and local
staff to better and more quickly scale up services to respond to client
needs.'' Indiana expressed opposition to the proposed State merit-
staffing requirement, asserting that it would result in significant
inefficiencies because Indiana's AJCs would need to be staffed with a
full accompaniment of both local workforce development board staff and
State ES staff, a level that would be unnecessary in some AJCs ``as the
populations simply do not require this many staff members for the
possible client base.''
In its PY 2022 State plan, Missouri stated that Wagner-Peyser Act
labor exchange services are ``provided solely by non-merit State
employees.'' Missouri explained that, in 2018, the State legislature
amended the State personnel law to remove merit status for all
employees except those who are required to be merit by ``federal law or
regulations for grant-in-aid programs.'' All employees in Missouri are
at-will except when required by Federal law. Following the Department's
publication of the 2020 Final Rule, Missouri's Office of Workforce
Development removed the merit status of employees funded under the
Wagner-Peyser Act to comply with State law. According to Missouri's
State plan, the change from merit status to at-will status became
effective on July 1, 2021. In its comments on the NPRM, Missouri's
Office of Workforce Development expressed opposition to the merit-
staffing requirement and urged the Department to preserve the
longstanding staffing flexibility afforded to Colorado, Michigan, and
Massachusetts and to grandfather in Missouri. Missouri asserted that
``the back-and-forth decision to allow and then disallow Wagner-Peyser
Act flexibility would cause unnecessary disruptions for service
delivery.'' Missouri also claimed that the merit status requirement
would place an unnecessary burden on local workforce development boards
that ``have planned for, budgeted for, and implemented'' ES services.
In the NPRM, the Department sought additional input about
transition costs, but did not receive pertinent data for use in the
final rule. The comments from Delaware, Indiana, and Missouri did not
include estimates of their potential transition costs. Therefore, the
Department is unable to quantify the transition costs that those three
States will incur but does not anticipate that the transition costs
will be large enough for this rule to be deemed a significant
regulatory action under sec. 3(f)(1) of E.O. 12866.
c. Information Collection Costs
Information collection costs represent direct costs to States
associated with the information collection requests (ICRs) under this
rule. Five ICRs are herein discussed.
The first ICR pertains to the requirement that SWA Wagner-Peyser
programs document Participant Individual Record Layout (PIRL) data
element 413 for all reportable individuals. The Department anticipates
that this provision will entail three costs: (1) computer programming,
(2) additional time for ES staff to help individuals register for
services, and (3) additional time for SMAs to check the accuracy of the
MSFW coding. SWAs will need to reprogram their ES registration systems
to ask MSFW status (PIRL 413) questions earlier in the registration
process. The Department anticipates that reprogramming will cost an
average of $4,000 per jurisdiction,\19\ so the total one-time cost for
reprogramming is estimated at $228,000 (= $4,000 x 57 jurisdictions).
For the additional annual burden on ES staff, the Department
anticipates that it will take an ES staff member an average of 2
minutes per reportable individual to ask the additional MSFW questions
and record the answers. To estimate this cost, the Department used the
median hourly wage of $27.05 for educational, guidance, and career
counselors and advisors (SOC code 21-1012) employed by State
governments (NAICS 999200).\20\ The Department used a 62-
[[Page 82719]]
percent benefits rate and a 17-percent overhead rate, so the fully
loaded hourly wage is $48.42 [= $27.05 + ($27.05 x 62%) + ($27.05 x
17%)]. Assuming ES staff assist in registering half of the 9.4 million
reportable individuals (based on the average for Program Years 2018-
2021), the annual cost is estimated at $7,609,895 (= 9,429,858
reportable individuals x 50% x 2 minutes x $48.42 per hour). For the
annual burden on SMAs, the Department anticipates that it will take an
SMA 1 hour per quarter to check the accuracy of the MSFW coding. To
estimate this cost, the Department used the median hourly wage of
$38.48 for social and community service managers (SOC code 11-9151)
employed by State governments (NAICS 999200).\21\ The Department used a
62-percent benefits rate and a 17-percent overhead rate, so the fully
loaded hourly wage is $68.88 [= $38.48 + ($38.48 x 62%) + ($38.48 x
17%)]. Therefore, the annual cost is estimated at $15,705 (= 57 SMAs x
4 hours per year x $68.88 per hour).
---------------------------------------------------------------------------
\19\ Anecdotal evidence from States indicates a range of $2,000
to $6,000 to add one yes/no question to an existing data collection.
\20\ BLS, ``Occupational Employment and Wage Statistics,
National Industry-Specific Occupational Employment and Wage
Estimates, NAICS 999200, SOC 21-1012.'' https://www.bls.gov/oes/current/naics4_999200.htm.
\21\ BLS, ``Occupational Employment and Wage Statistics,
National Industry-Specific Occupational Employment and Wage
Estimates, NAICS 999200, SOC 11-9151.'' https://www.bls.gov/oes/current/naics4_999200.htm.
---------------------------------------------------------------------------
The second ICR pertains to the requirement that SWA applicant-
holding offices provide workers referred on clearance orders with a
checklist summarizing wages, working conditions, and other material
specifications in the clearance order. The Department anticipates that
it will take an ES staff member an average of 35 minutes to read the
clearance order, create a checklist, and provide the checklist to
applicants. To estimate this cost, the Department used a fully loaded
hourly wage of $48.42 for educational, guidance, and career counselors
and advisors (SOC code 21-1012) employed by State governments (NAICS
999200). Assuming 14,580 clearance orders per year (based on the number
of clearance orders reported by SWAs in Program Year 2019), the annual
cost is estimated at $411,812 (= 14,580 clearance orders x 35 minutes x
$48.42 per hour).
The third ICR pertains to the changes associated with the Migrant
and Seasonal Farmworker Monitoring Report and Complaint/Apparent
Violation Form. The Department anticipates that this provision will
entail two costs: (1) time for ES Managers to update a central
complaint log, and (2) additional time for SMAs to complete the Annual
Summary due to content changes. For the annual burden on ES Managers,
the Department anticipates that it will take an ES Manager 8 hours per
year to update the central complaint log. To estimate this cost, the
Department used a fully loaded median hourly wage of $68.88 for social
and community service managers (SOC code 11-9151) employed by State
governments (NAICS 999200). Assuming that there are approximately 2,400
ES Managers (based on the approximate number of one-stop centers), the
annual cost is estimated at $1,322,496 (= 2,400 ES Managers x 8 hours
per year x $68.88 per hour). For the annual burden on SMAs, the
Department anticipates that it will take an SMA an additional 3 hours
per year to complete the Annual Summary due to content changes. To
estimate this cost, the Department used a fully loaded median hourly
wage of $68.88 for social and community service managers (SOC code 11-
9151) employed by State governments (NAICS 999200). Therefore, the
annual cost is estimated at $11,778 (= 57 SMAs x 3 hours per year x
$68.88 per hour).
The fourth ICR pertains to this rule's merit-staffing requirement.
The Department will require States to describe in their Unified or
Combined State Plans how the State will staff labor exchange services
under the Wagner-Peyser Act using State merit staff. The Department
does not anticipate additional costs related to this requirement given
that States must already describe in their Unified or Combined State
Plans how ES labor exchange services will be delivered.
The fifth ICR pertains to the forthcoming evaluation of three
States: Colorado, Massachusetts, and Michigan. The Department will
develop an evaluation to examine various staffing models and methods of
delivering labor exchange services, to determine whether such models
are empirically supported. The pertinent estimates will be included in
a future ICR.
In total for the first three ICRs described above, the rule is
expected to have first-year IC costs of $9.6 million (2022$). Over the
10-year analysis period, the annualized costs are estimated at $9.4
million at a discount rate of 7 percent (2022$).
3. Transfer Payments
According to OMB Circular A-4, transfer payments are monetary
payments from one group to another that do not affect the total
resources available to society. The transfer payments for this rule are
the transfer payments associated with employee wages, fringe benefits,
and overhead costs.
This final rule permits three States--Colorado, Massachusetts, and
Michigan--to use their longstanding alternative staffing model to
deliver ES services. The requirement to use State merit staff applies
to the other 54 States and jurisdictions; therefore, the three States
(i.e., Delaware, Indiana, and Missouri) that implemented the staffing
flexibility provided by the 2020 Final Rule will need to adjust their
staffing arrangements and may incur additional wage costs. For purposes
of E.O. 12866, these additional wage costs are categorized as transfer
payments from States to employees.
The Delaware Department of Labor stated in its comments on the NPRM
that ``the proposed rule change will take away funding for 13 total
contractual staff.'' Delaware did not provide position titles or salary
information in its comments. Therefore, the Department is unable to
estimate the transfer payments for Delaware due to a lack of data.
In their comments on the NPRM, the Indiana Department of Workforce
Development and the Missouri Office of Workforce Development expressed
opposition to the proposal but did not provide information about the
number, position titles, or annual salaries of the non-State-merit
staff dedicated to delivering ES services. Therefore, the Department is
unable to estimate the transfer payments for Indiana and Missouri due
to a lack of data.
The Department does not anticipate that the transfer payments for
Delaware, Indiana, and Missouri will be large enough for this rule to
be deemed a significant regulatory action under sec. 3(f)(1) of E.O.
12866.
4. Nonquantifiable Benefits
The Department is requiring that States use only State merit staff
to deliver ES labor exchange services, with exceptions for three
States. The COVID-19 pandemic placed an enormous burden on State UI
programs due to the significant increase in UI claims from the massive
number of unemployed workers. The number of continued claims rose from
fewer than 2 million before the pandemic to more than 20 million in the
week ended May 9, 2020. It became evident to the Department that,
during a crisis that displaces a large number of workers in a short
time, it could become imperative for States to shift staff resources
from ES services to support urgent UI services. Being able to do so,
however, requires that ES labor exchange services be provided only by
State merit staff because certain UI services are required to be
delivered solely by State merit staff pursuant to
[[Page 82720]]
sec. 303(a)(1) of the SSA. Requiring labor exchange services to be
provided by State merit staff will help ensure that States have the
flexibility to shift staff resources during future surges in UI claims
where time-limited legislative flexibilities to UI services are not
available. Further, this ensures that UI services will be performed by
qualified staff who are familiar with the requirements of the program
during such future occurrences, ensuring the program's integrity.
The benefits of requiring States to use only State merit staff to
deliver ES labor exchange services are not entirely quantifiable. Yet,
in addition to States benefiting from the availability of State merit
staff to assist with a surge in UI claims, benefits also accrue to
individuals accessing labor exchange services delivered by State merit
personnel. State merit-staffed employees are accountable only to their
State government, are hired through objective, transparent standards,
and must deliver services to all customers of the ES system according
to established standards. In exercising its discretion under sec. 3(a)
of the Wagner-Peyser Act to establish minimum levels of efficiency and
promote the uniform administration of labor exchange services by
requiring the use of State merit staff to deliver labor exchange
services, the Department has determined that alignment of ES and UI
staffing is needed to ensure that quality services are delivered by
States effectively and equitably to UI beneficiaries and other ES
customers.
The Department is also amending the regulations governing ES labor
exchange services provided to MSFWs, the Monitor Advocate System, and
the Complaint System. These amendments remove redundancies, clarify
requirements, and enhance equity and inclusion for farmworkers in the
ES system. The requirement that States use State merit staff to provide
services to MSFWs benefits MSFWs, who are particularly vulnerable to
employment-related abuses. Outreach and SMA staff receive centralized
training and management from the State to ensure they are equipped to
assess and respond to farmworker needs, including responding to
complaints and apparent violations in the field, which may include
highly sensitive subject matter like human trafficking.
5. Summary
Exhibit 1 shows the annualized rule familiarization and IC costs at
discount rates of 3 percent and 7 percent. The rule is expected to have
first-year rule familiarization costs of $4,681 and first-year IC costs
of $9.6 million (2022$). Over the 10-year analysis period, the
annualized rule familiarization costs are estimated at $623 at a
discount rate of 7 percent and the annualized IC costs are estimated at
$9.4 million at a discount rate of 7 percent (2022$).
[GRAPHIC] [TIFF OMITTED] TR24NO23.037
Due to data limitations, the Department is unable to quantify the
transition costs or transfer payments that are likely to be incurred by
Delaware, Indiana, and Missouri as they transition the delivery of all
ES services to State merit staff. The Department does not anticipate
that the transition costs or transfer payments will be large enough for
this rule to be deemed a significant regulatory action under sec.
3(f)(1) of E.O. 12866.
6. Regulatory Alternatives
OMB Circular A-4 directs agencies to analyze alternatives if such
alternatives best satisfy the philosophy and principles of E.O. 12866.
Accordingly, the Department considered the following regulatory
alternatives.
a. Alternative 1
Under this alternative, the Department would require all States and
jurisdictions to use State merit staff to provide ES services,
including Colorado, Massachusetts, and Michigan. In other words, under
this alternative, the Department would adopt the proposal described in
the NPRM. After careful consideration, the Department is not pursuing
this alternative. The Department recognizes the strong reliance
interests of Colorado, Massachusetts, and Michigan and is therefore
permitting these three States to continue using their approved
longstanding staffing model to deliver ES services. These three States
must participate in evaluations of ES service delivery to be conducted
by the Department.
b. Alternative 2
Under this alternative, the Department would require States to come
into compliance with the requirement to use State merit staff within 30
or 60 days of issuance of the final rule. The Department is not
pursuing this alternative because it could result in interruption to ES
labor exchange services in the three States not already operating in
compliance with
[[Page 82721]]
the rule: Delaware, Indiana, and Missouri. The Department recognizes
that this rule may be a substantial change for those three States, and
they may need time to make adjustments to personnel, contractual
arrangements, and service provision. Under this alternative, with only
30 or 60 days to rapidly shift existing staff or hire new staff,
Delaware, Indiana, and Missouri may find themselves in violation of
contracts for services negotiated after the 2020 Final Rule.
Accordingly, the Department is providing 24 months from the effective
date of the final rule for States to comply with the State merit-
staffing requirement rather than stipulating that the States comply
immediately.
B. Regulatory Flexibility Act, Small Business Regulatory Enforcement
Fairness Act of 1996, and Executive Order 13272 (Proper Consideration
of Small Entities in Agency Rulemaking)
The Regulatory Flexibility Act (RFA), 5 U.S.C. chapter 6, requires
the Department to evaluate the economic impact of this rule on small
entities. The RFA defines small entities to include small businesses,
small organizations, including not-for-profit organizations, and small
governmental jurisdictions. The Department must determine whether the
rule will impose a significant economic impact on a substantial number
of such small entities. The Department concludes that this rule does
not regulate any small entities directly, so any regulatory effect on
small entities will be indirect. Accordingly, the Department has
determined this rule will not have a significant economic impact on a
substantial number of small entities within the meaning of the RFA.
C. Paperwork Reduction Act of 1995
The purposes of the Paperwork Reduction Act of 1995 (PRA), 44
U.S.C. 3501 et seq., include minimizing the paperwork burden on
affected entities. The PRA requires certain actions before an agency
can adopt or revise a collection of information, including publishing
for public comment a summary of the collection of information and a
brief description of the need for and proposed use of the information.
As part of its continuing effort to reduce paperwork and respondent
burden, the Department conducts a preclearance consultation program to
provide the public and Federal agencies with an opportunity to comment
on proposed and continuing collections of information in accordance
with the PRA. See 44 U.S.C. 3506(c)(2)(A). This activity helps to
ensure that the public understands the Department's collection
instructions, respondents can provide the requested data in the desired
format, reporting burden (time and financial resources) is minimized,
collection instruments are clearly understood, and the Department can
properly assess the impact of collection requirements on respondents.
A Federal agency may not conduct or sponsor a collection of
information unless it is approved by OMB under the PRA and it displays
a currently valid OMB control number. The public is also not required
to respond to a collection of information unless it displays a
currently valid OMB control number. In addition, notwithstanding any
other provisions of law, no person will be subject to penalty for
failing to comply with a collection of information if the collection of
information does not display a currently valid OMB control number (44
U.S.C. 3512).
In accordance with the PRA, the Department has submitted four ICRs
to OMB in concert with the publishing of this final rule.
The ICRs in this final rule are summarized as follows.
Agency: DOL-ETA.
Title of Collection: DOL-Only Performance Accountability,
Information, and Reporting System for Reportable Individuals.
Type of Review: New Collection.
OMB Control Number: 1205-0NEW.
Description: The Department is requesting a new OMB control number
for this collection. The request for a new control number is for
administrative reasons only. The changes to Sec. Sec. 653.103(a) and
653.109(a)(10) in this rulemaking described subsequently will
eventually be included in OMB Control Number 1205-0521. The Department
is anticipating that a few different upcoming rulemakings will impact
the ICs contained in OMB Control Number 1205-0521. Once all outstanding
actions are final and complete, the Department intends to submit a
nonmaterial change request to transfer the burden from the new ICR to
the existing OMB control number for the DOL-Only Performance
Accountability, Information, and Reporting System (1205-0521) and
proceed to discontinue the use of the new control number.
This final rule adds a requirement that SWA Wagner-Peyser programs
must document PIRL data element 413 for reportable individuals. The
DOL-only PIRL ETA 9172 already requires Wagner-Peyser programs to
document data element 413 for participants. This change will help ES
staff identify all individuals who engage in ES services who are MSFWs
and the degree of their engagement, so that SWAs, SMAs, and the
Department may better assess whether all Wagner-Peyser services are
provided to MSFWs on an equitable basis. Collecting data about
participant and reportable individual characteristics, particularly
related to populations that have been historically underserved, is an
important tool for measuring progress in providing equal opportunity.
The final rule also makes changes to the definitions of migrant
farmworker and seasonal farmworker. The Department plans to submit a
new ICR that will update ETA 9172 to indicate that Wagner-Peyser
programs must document and keep records of PIRL data element 413 for
reportable individuals and align the definitions of migrant farmworker
and seasonal farmworker with revisions at Sec. 651.10.
Affected Public: State Governments.
Obligation to Respond: Required to Obtain or Retain Benefits.
Estimated Total Annual Respondents: 22,687,331.
Estimated Total Annual Responses: 46,167,618.
Estimated Total Annual Burden Hours: 10,629,971.
Estimated Costs to Respondents or Recordkeepers: $9,719,287.
Regulations Sections: Sec. Sec. 653.103(a), 653.109(a)(10).
The preceding IC was the subject of a public comment, which the
Department summarizes and responds to as follows.
Comment: A private citizen sought to call attention to what they
described as ``an apparent typographical error'' in the NPRM's PRA
section on the DOL-Only Performance Accountability, Information, and
Reporting System for Reportable Individuals IC. The commenter stated
that the estimated total annual burden hours of 10,610,629,971 stood
out as an erroneous figure because it is beyond the current government-
wide cumulative paperwork burden (citing OMB's figure of
10,521,540,269.2 hours), and because the supporting statement for the
IC in question listed the total annual burden hours at 10,629,971 hours
(citing Table 8). The commenter said it appears that the Department
mistakenly added an extra ``610'' to that figure.
A State agency commented that, if the proposed requirement is
adopted, it would cost $30,000 to $50,000 to update its IT systems to
track the MSFW-status of reportable individuals, and it asked the
Department to provide additional funding to cover these costs.
Response: The Department acknowledges that estimated total annual
burden hours for this collection
[[Page 82722]]
is 10,629,971, not 10,610,629,971. The Department notes that it only
received one comment indicating that the cost to update IT systems
could be higher than the Department's estimate of $4,000 per
jurisdiction. The Department's estimate is based on anecdotal evidence
from other States, which indicated the change could cost a one-time
expense of $2,000 to $6,000. The Department notes that some States may
have higher costs, while other States may have lower costs. The change
to this collection does not establish a new data element. Instead, it
only requires States to make the existing data element 413, which is
already required for participants, applicable to reportable
individuals. The Department expects the burden to be minimal and will
finalize the collection as proposed.
Agency: DOL-ETA.
Title of Collection: Clearance Order Checklists.
Type of Review: New Collection.
OMB Control Number: 1205-0NEW.
Description: In the NPRM, the Department proposed to add a new IC
to address the requirements at 20 CFR 653.501(d)(6), which requires
SWAs to provide farmworkers with ``checklists showing wage payment
schedules, working conditions, and other material specifications of the
clearance order,'' and 20 CFR 653.501(d)(10), which requires SWA
applicant-holding offices to provide workers referred on clearance
orders with a checklist summarizing wages, working conditions, and
other material specifications in the clearance order. The Department
proposed to include a new Agricultural Clearance Order Form, ETA Form
790B, and to withdraw OMB Control Number 1205-0134, which at the time
of the NPRM was an expired ICR for which a submission requesting
reinstatement was pending at OMB. Since the publication of the NPRM,
OMB approved OMB Control Number 1205-0134, and therefore there is no
need to withdraw OMB Control Number 1205-0134 or to create a new OMB
Control Number for Form ETA-790B. For this reason, the Department
declines to finalize the new collection for Form ETA-790B; however, the
Department will finalize the collection for the checklist requirements
and will revise the title of the new collection to be Clearance Order
Checklists. The Department has also revised the burden estimates to
only include information for the checklist requirements.
Affected Public: State Governments, Private Sector: Business or
other for-profits, not-for-profit institutions, and farms.
Obligation to Respond: Required to Obtain or Retain Benefits.
Estimated Total Annual Respondents: 24,030.
Estimated Total Annual Responses: 24,030.
Estimated Total Annual Burden Hours: 13,937.
Estimated Total Annual Other Burden Costs: $0.
Regulations Sections: Sec. 653.501(d)(6) and (10).
Agency: DOL-ETA.
Title of Collection: Migrant and Seasonal Farmworker Monitoring
Report and Complaint/Apparent Violation Form.
Type of Review: Revision.
OMB Control Number: 1205-0039.
Description: The final rule requires four areas to be changed in
this ICR. First, there are several changes to the required content of
the SMA's Annual Summary, described at Sec. 653.108, including a
summary of how the SMA is working with the State-level E.O. Officer, an
assurance that the SMA is a senior-level official who reports directly
to the State Administrator or their designee, an evaluation of SMA
staffing levels, a summary and analysis of outreach efforts, and other
minor edits to language used to describe content in the summary. To
implement these changes, the Department also is revising the ETA Form
5148 to include the content. Second, the Department is making two non-
substantive corrections to the ETA Form 5148: (1) adding transportation
to the types of apparent violations reported in part 1, section E, item
3; and (2) revising part 3, items 2 and 3 so that the field check
requirements conform to the existing regulation at Sec. 653.501. The
Department is adding transportation to the types of apparent violations
because the types of apparent violations listed on the form are
intended to exactly mirror the types of complaints reported in section
D, item 2. Transportation was inadvertently omitted from the prior ICR
revision. Third, the Department is adding a new IC to conform with the
change to Sec. 653.107(b)(8), which requires that ES Office Managers
maintain MSFW outreach logs on file for at least 3 years, to comply
with 2 CFR 200.334. Fourth, the Department is adding an IC to this ICR
to explain the recordkeeping requirements established at Sec.
658.410(c) regarding maintaining a central complaint log. The
Department is not establishing a required form, but rather describing
the minimum contents that must be included in any complaint logs SWAs
create. In addition, the Department is revising the ETA Form 5148 to
conform with revisions to the minimum level of service indicators to
request information regarding outreach contacts per quarter as opposed
to per week as currently required under Sec. 653.109(h).
Affected Public: State Governments.
Obligation to Respond: Required to Obtain or Retain Benefits.
Estimated Total Annual Respondents: 5,536.
Estimated Total Annual Responses: 11,450.
Estimated Total Annual Burden Hours: 29,440.
Estimated Total Annual Other Burden Costs: $0.
Regulations Sections: 2 CFR 200.334; 20 CFR 653.107(b)(8), 653.108,
653.109(h), and 658.410(c).
Agency: DOL-ETA.
Title of Collection: Wagner-Peyser Employment Service Required
Elements for the Unified or Combined State Plan.
Type of Review: New Collection.
OMB Control Number: 1205-0NEW.
Description: The Department is requesting a new OMB control number
for this collection. The request for a new control number is for
administrative reasons only. The changes in this rulemaking described
subsequently will eventually be included in OMB Control Number 1205-
0522 (expires Mar. 31, 2026). After this rule is published and before
the expiration of OMB Control Number 1205-0522, the Department intends
to submit a nonmaterial change request to transfer the burden from the
new ICR to the existing OMB control number for the Required Elements
for Submission of the Unified or Combined State Plan and Plan
Modifications under the Workforce Innovation and Opportunity Act (1205-
0522) and proceed to discontinue the use of the new control number.
The final rule requires all States to provide Wagner-Peyser Act ES
services through State merit staff, except for three States that the
Department is permitting to use their approved longstanding alternative
staffing models. The Department is creating a new ICR to require
Unified or Combined State Plans to describe how the State will staff
labor exchange services under the Wagner-Peyser Act using State merit
staff. Similarly, the Department is reinstituting the SWA's requirement
to provide assurances that it will use State merit staff to deliver ES
services. The final rule also provides several clarifications regarding
outreach and significant MSFW one-stop center staffing, including
changes to the content of the AOP. The changes will require revision to
the AOP instructions. The AOP instructions in the final submission to
OMB reflect one change from the NPRM related to outreach staffing
levels that the Department is
[[Page 82723]]
making in Sec. 653.107(a)(4) and (d)(2) in this final rule.
Affected Public: State Governments.
Obligation to Respond: Required to Obtain or Retain Benefits.
Estimated Total Annual Respondents: 57 (every 2 years).
Estimated Total Annual Responses: 38 (every 2 years).
Estimated Total Annual Burden Hours: 8,136 (every 2 years).
Estimated Total Annual Other Burden Costs: $0 (every 2 years).
Regulations Sections: Sec. Sec. 652.215; 653.107(a)(1), (a)(4),
(b)(11), and (d)(2)(ii) through (v).
Interested parties may obtain a copy free of charge of one or more
of the ICRs submitted to OMB on the OIRA website at https://www.reginfo.gov/public/do/PRAMain. From that page, select Department of
Labor from the ``Currently under Review'' dropdown menu, click the
``Submit'' button, and find the applicable control number among the
ICRs displayed.
D. Executive Order 13132 (Federalism)
E.O. 13132 requires Federal agencies to ensure that the principles
of Federalism animating our Constitution guide the executive
departments and agencies in the formulation and implementation of
policies, and to further the policies of the Unfunded Mandates Reform
Act of 1995 (UMRA). Further, agencies must strictly adhere to
constitutional principles. Agencies must closely examine the
constitutional and statutory authority supporting any action that would
limit the policymaking discretion of the States and they must carefully
assess the necessity for any such action. To the extent practicable,
State and local officials must be consulted before any such action is
implemented. Section 3(b) of the E.O. further provides that Federal
agencies must implement regulations that have a substantial direct
effect only if statutory authority permits the regulation and it is of
national significance. The Department has reviewed the final rule in
light of these requirements and has concluded that it is properly
premised on the statutory authority given to the Secretary to set
standards under the Wagner-Peyser Act.
Accordingly, the Department has reviewed this final rule and has
concluded that the rulemaking has no substantial direct effects on
States, the relationship between the National Government and the
States, or the distribution of power and responsibilities among the
various levels of government as described by E.O. 13132. Therefore, the
Department has concluded that this final rule does not have a
sufficient Federalism implication to require further agency action or
analysis.
E. Unfunded Mandates Reform Act of 1995
Title II of UMRA, Public Law 104-4, requires each Federal agency to
prepare a written statement assessing the effects of any Federal
mandate in a final agency rule that may result in an expenditure of
$100 million or more (adjusted annually for inflation with the base
year 1995) in any one year by State, local, and tribal governments, in
the aggregate, or by the private sector. This final rule does not
exceed the $100 million expenditure in any one year when adjusted for
inflation. Therefore, the requirements of title II of UMRA do not
apply, and the Department has not prepared a statement under UMRA.
Comment: Some commenters, including a State workforce development
board, a professional association, and an association of State elected
officials, argued that the proposal would create an unfunded Federal
mandate because States' costs would increase due to the loss of
flexibility and the need to recruit State merit staff and cross-train
workers to support UI adjudication. A professional association, an
association of workforce boards, and a State workforce development
board similarly argued that the proposal would create an unfunded
Federal mandate because it would force States to make additional long-
term investments to employ State merit staff.
Response: The regulation contains no unfunded mandates as defined
in 2 U.S.C. 658. The Department has detailed the cost burden associated
with this final rule in section VI. Wagner-Peyser Employment Service
grant funding is provided annually to deliver employment services, and
that funding will be used to cover the cost of implementing this rule.
Under UMRA, a Federal mandate is any provision in a regulation that
imposes an enforceable duty upon State, local, or tribal governments,
or imposes a duty upon the private sector that is not voluntary. The
Wagner-Peyser act, as amended by WIOA, authorizes ES activities. These
program requirements are supported by Federal formula grant funds, and,
accordingly, are not considered unfunded mandates.
F. Executive Order 13175 (Indian Tribal Governments)
The Department has reviewed this final rule under the terms of E.O.
13175 and DOL's Tribal Consultation Policy and has concluded that the
changes to regulatory text would not have tribal implications. These
changes do not have substantial direct effects on one or more Indian
tribes, the relationship between the Federal government and Indian
tribes, nor the distribution of power and responsibilities between the
Federal government and Tribal Governments.
G. Plain Language
E.O. 12866, E.O. 13563, and the Presidential Memorandum of June 1,
1998 (Plain Language in Government Writing), direct executive
departments and agencies to use plain language in all rulemaking
documents published in the Federal Register. The goal is to make the
government more responsive, accessible, and understandable in its
communications with the public. Accordingly, the Department drafted
this final rule in plain language.
List of Subjects
20 CFR Part 651
Employment, Grant programs--labor.
20 CFR Part 652
Employment, Grant programs--labor, Reporting and recordkeeping
requirements.
20 CFR Part 653
Agriculture, Employment, Equal employment opportunity, Grant
programs--labor, Migrant labor, Reporting and recordkeeping
requirements.
20 CFR Part 658
Administrative practice and procedure, Employment, Grant programs--
labor, Reporting and recordkeeping requirements.
For the reasons discussed in the preamble, the Department of Labor
amends 20 CFR parts 651, 652, 653, and 658 as follows:
PART 651--GENERAL PROVISIONS GOVERNING THE WAGNER-PEYSER ACT
EMPLOYMENT SERVICE
0
1. The authority citation for part 651 is revised to read as follows:
Authority: 29 U.S.C. 49a and 49k; 38 U.S.C. 101, chapters 41
and 42; Secs. 3, 189 and 503, Pub. L. 113-128, 128 Stat. 1425 (Jul.
22, 2014).
0
2. Amend Sec. 651.10 by:
0
a. Revising the introductory text;
0
b. Adding in alphabetical order a definition for ``Apparent
violation'';
0
c. Revising the definitions of ``Applicant holding office,'' ``Bona
fide occupational qualification (BFOQ),'' ``Career services,''
``Clearance order,'' ``Complaint System Representative,''
[[Page 82724]]
``Decertification,'' ``Employment and Training Administration (ETA),''
``Employment Service (ES) office,'' ``Employment Service (ES) Office
Manager,'' ``Employment Service (ES) staff,'' ``Field checks,'' ``Field
visits,'' ``Hearing Officer,'' ``Interstate clearance order,''
``Intrastate clearance order,'' and ``Migrant farmworker'';
0
d. Removing the definition of ``Migrant food processing worker'';
0
e. Revising the definitions of ``Occupational Information Network
(O*NET),'' ``O*NET-SOC,'' ``Outreach staff,'' ``Participant,''
``Placement,'' ``Reportable individual,'' ``Respondent,'' ``Seasonal
farmworker,'' ``Significant MSFW one-stop centers,'' and ``Significant
MSFW States'';
0
f. Removing the definitions of ``Significant multilingual MSFW one-stop
centers'' and ``State Workforce Agency (SWA) official''; and
0
g. Revising the definition of ``Wagner-Peyser Act Employment Service
(ES) also known as Employment Service (ES).''
The addition and revisions read as follows:
Sec. 651.10 Definitions of terms used in this part and parts 652,
653, 654, and 658 of this chapter.
In addition to the definitions set forth in sec. 3 of the Workforce
Innovation and Opportunity Act (WIOA), codified at 29 U.S.C. 3101 et
seq., the following definitions apply to the regulations in parts 652,
653, 654, and 658 of this chapter:
* * * * *
Apparent violation means a suspected violation of employment-
related laws or employment service (ES) regulations by an employer,
which an ES staff member observes, has reason to believe, or regarding
which an ES staff member receives information (other than a complaint
as defined in this part).
Applicant holding office means an ES office that is in receipt of a
clearance order and has access to U.S. workers who may be willing and
available to perform farmwork on less than year-round basis.
* * * * *
Bona fide occupational qualification (BFOQ) means that an
employment decision or request based on age, sex, national origin, or
religion is based on a finding that such characteristic is necessary to
the individual's ability to perform the job in question. Since a BFOQ
is an exception to the general prohibition against discrimination on
the basis of age, sex, national origin, or religion, it must be
interpreted narrowly in accordance with the Equal Employment
Opportunity Commission regulations set forth at 29 CFR parts 1604,
1605, 1606, and 1625.
Career services means the services described in sec. 134(c)(2) of
WIOA and Sec. 678.430 of this chapter.
Clearance order means a job order that is processed through the
clearance system under the Agricultural Recruitment System (ARS) at
part 653, subpart F, of this chapter.
* * * * *
Complaint System Representative means a trained ES staff individual
who is responsible for processing complaints.
Decertification means the rescission by the Secretary of Labor
(Secretary) of the year-end certification made under sec. 7 of the
Wagner-Peyser Act to the Secretary of the Treasury that the State
agency may receive funds authorized by the Wagner-Peyser Act.
* * * * *
Employment and Training Administration (ETA) means the component of
the Department that administers Federal government job training and
worker dislocation programs, Federal grants to States for public ES
programs, and unemployment insurance benefits. These services are
provided primarily through State and local workforce development
systems.
* * * * *
Employment Service (ES) office means a site that provides ES
services as a one-stop partner program. A site must be colocated in a
one-stop center consistent with the requirements of Sec. Sec. 678.305
through 678.315 of this chapter.
Employment Service (ES) Office Manager means the ES staff person in
charge of ES services provided in a one-stop center.
* * * * *
Employment Service (ES) staff means individuals who are funded, in
whole or in part, by Wagner-Peyser Act funds to carry out activities
authorized under the Wagner-Peyser Act.
* * * * *
Field checks means unannounced appearances by ES staff and/or other
State or Federal staff at agricultural worksites to which ES placements
have been made through the intrastate or interstate clearance system to
ensure that conditions are as stated on the clearance order and that
the employer is not violating an employment-related law.
Field visits means announced appearances by State Monitor
Advocates, Regional Monitor Advocates, the National Monitor Advocate
(or National Monitor Advocate staff), or outreach staff to the working,
living, and gathering areas of migrant and seasonal farmworkers
(MSFWs), to perform the duties described at Sec. Sec. 653.107(b)
(outreach staff), 653.108(o) and (q) (State Monitor Advocates),
658.602(n) (National Monitor Advocates and National Monitor Advocate
staff), and 658.603(p) (Regional Monitor Advocates). Monitor Advocates
or outreach staff must keep records of each such visit.
* * * * *
Hearing Officer means a Department Administrative Law Judge,
designated to preside at Department administrative hearings.
* * * * *
Interstate clearance order means an agricultural clearance order
for temporary employment (employment on a less than year-round basis)
describing one or more hard-to-fill job openings, which an ES office
uses to request recruitment assistance from other ES offices in a
different State.
Intrastate clearance order means an agricultural clearance order
for temporary employment (employment on a less than year-round basis)
describing one or more hard-to-fill job openings, which an ES office
uses to request recruitment assistance from all other ES offices within
the State.
* * * * *
Migrant farmworker means a seasonal farmworker (as defined in this
section) who travels to the job site so that the farmworker is not
reasonably able to return to their permanent residence within the same
day.
* * * * *
Occupational Information Network (O*NET) means the online reference
database which contains detailed descriptions of U.S. occupations,
distinguishing characteristics, classification codes, and information
on tasks, knowledge, skills, abilities, and work activities as well as
information on interests, work styles, and work values.
* * * * *
O*NET-SOC means the occupational codes and titles used in the O*NET
system, based on and grounded in the Standard Occupational
Classification (SOC), which are the titles and codes utilized by
Federal statistical agencies to classify workers into occupational
categories for the purpose of collecting, calculating, and
disseminating data. The SOC system is issued by the Office of
Management and Budget and the Department is authorized to develop
additional detailed O*NET occupations within existing SOC categories.
The Department uses O*NET-SOC titles and codes for the purposes of
collecting descriptive occupational information and for State reporting
of data on
[[Page 82725]]
training, credential attainment, and placement in employment by
occupation.
* * * * *
Outreach staff means ES staff with the responsibilities described
in Sec. 653.107(b) of this chapter. State Monitor Advocates are not
considered outreach staff.
Participant means a reportable individual who has received services
other than the services described in Sec. 677.150(a)(3) of this
chapter, after satisfying all applicable programmatic requirements for
the provision of services, such as eligibility determination. (See
Sec. 677.150(a) of this chapter.)
(1) The following individuals are not participants, subject to
Sec. 677.150(a)(3)(ii) and (iii) of this chapter:
(i) Individuals who only use the self-service system; and
(ii) Individuals who receive information-only services or
activities.
(2) ES participants must be included in the program's performance
calculations.
Placement means the hiring by a public or private employer of an
individual referred by the ES office for a job or an interview,
provided that the ES office completed all the following steps:
(1) Prepared a job order form prior to referral, except in the case
of a job development contact on behalf of a specific participant;
(2) Made prior arrangements with the employer for the referral of
an individual or individuals;
(3) Referred an individual who had not been specifically designated
by the employer, except for referrals on agricultural job orders for a
specific crew leader or worker;
(4) Verified from a reliable source, preferably the employer, that
the individual had entered on a job; and
(5) Appropriately recorded the placement.
* * * * *
Reportable individual means an individual who has taken action that
demonstrates an intent to use ES services and who meets specific
reporting criteria of the Wagner-Peyser Act (see Sec. 677.150(b) of
this chapter), including:
(1) Individuals who provide identifying information;
(2) Individuals who only use the self-service system; or
(3) Individuals who only receive information-only services or
activities.
Respondent means the individual or entity alleged to have committed
the violation described in the complaint, such as the employer, service
provider, or State agency.
Seasonal farmworker means an individual who is employed, or was
employed in the past 12 months, in farmwork (as defined in this
section) of a seasonal or other temporary nature and is not required to
be absent overnight from their permanent place of residence. Labor is
performed on a seasonal basis where, ordinarily, the employment
pertains to or is of the kind exclusively performed at certain seasons
or periods of the year and which, from its nature, may not be
continuous or carried on throughout the year. Workers who move from one
seasonal activity to another, while employed in farmwork, are employed
on a seasonal basis even though they may continue to be employed during
a major portion of the year. Workers are employed on a temporary basis
where they are employed for a limited time only or their performance is
contemplated for a particular piece of work, usually of short duration.
Generally, employment which is contemplated to continue indefinitely is
not temporary.
* * * * *
Significant MSFW one-stop centers are those designated by the
Department and include those ES offices where MSFWs account for 10
percent or more of annual participants or reportable individuals in ES
and those local ES offices that the OWI Administrator determines must
be included due to special circumstances such as an estimated large
number of MSFWs in the service area. In no event may the number of
significant MSFW one-stop centers be less than 100 centers on a
nationwide basis.
Significant MSFW States are those States designated by the
Department and must include the 20 States with the highest estimated
number of MSFWs.
* * * * *
State Workforce Agency (SWA) official means an individual employed
by the State Workforce Agency or any of its subdivisions.
* * * * *
Wagner-Peyser Act Employment Service (ES) also known as Employment
Service (ES) means the national system of public ES offices described
under the Wagner-Peyser Act. ES services are delivered through a
nationwide system of one-stop centers, managed by SWAs and the various
local offices of the SWAs, and funded by the United States Department
of Labor.
* * * * *
PART 652--ESTABLISHMENT AND FUNCTIONING OF STATE EMPLOYMENT SERVICE
0
3. The authority citation for part 652 is revised to read as follows:
Authority: 29 U.S.C. chapter 4B; 38 U.S.C. chapters 41 and 42;
Secs. 189 and 503, Public Law 113-128, 128 Stat. 1425 (Jul. 22,
2014).
0
4. Amend Sec. 652.8 by revising paragraphs (h), introductory text of
paragraph (j), and (j)(2) and (3) to read as follows:
Sec. 652.8 Administrative provisions.
* * * * *
(h) Other violations. Violations or alleged violations of the
Wagner-Peyser Act, regulations, or grant terms and conditions except
those pertaining to audits or discrimination must be determined and
processed in accordance with part 658, subpart H, of this chapter.
* * * * *
(j) Nondiscrimination requirements. States must:
* * * * *
(2) Assure that discriminatory job orders will not be accepted,
except where the stated requirement is a bona fide occupational
qualification (BFOQ). See generally 42 U.S.C. 2000e-2(e) and 29 CFR
parts 1604, 1605, 1606, and 1625.
(3) Assure that ES offices are in compliance with the veteran
referral and job listing requirements at 41 CFR 60-300.84.
* * * * *
0
5. Add Sec. 652.10 to read as follows:
Sec. 652.10 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.
0
6. Revise the heading to subpart C to read as follows:
Subpart C--Employment Service Services in a One-Stop Delivery
System Environment
0
7. Amend Sec. 652.204 by revising the section heading to read as
follows:
Sec. 652.204 Must funds authorized under the Wagner-Peyser Act
Governor's Reserve flow through the one-stop delivery system?
* * * * *
0
8. Amend Sec. 652.205 by revising paragraph (b)(3) to read as follows:
[[Page 82726]]
Sec. 652.205 May funds authorized under the Wagner-Peyser Act be used
to supplement funding for labor exchange programs authorized under
separate legislation?
* * * * *
(b) * * *
(3) The activity provides services that are coordinated with ES
services; and
* * * * *
0
9. Amend Sec. 652.207 by revising the section heading and paragraph
(a) to read as follows:
Sec. 652.207 How does a State meet the requirement for universal
access to Employment Service services?
(a) A State has discretion in how it meets the requirement for
universal access to ES services. In exercising this discretion, a State
must meet the Wagner-Peyser Act's requirements.
* * * * *
0
10. Revise Sec. 652.215 to read as follows:
Sec. 652.215 What staffing models must be used to deliver services in
the Employment Service?
(a) Except as provided in paragraph (b) of this section, the
Secretary requires that States deliver the labor exchange services
described in Sec. 652.3 using State merit-staff employees employed
according to the merit-system principles described in 5 CFR part 900,
subpart F--Standards for a Merit System of Personnel Administration.
This requirement also applies to the provision of services and
activities under parts 653 and 658 of this chapter.
(b) States authorized prior to February 5, 2020, to use a staffing
model other than that described in paragraph (a) of this section to
deliver ES services may use the staffing model consistent with the
model previously authorized for the State. These States may use merit-
staffing flexibility only to the same extent that the Department had
authorized it prior to February 5, 2020.
(c) States using staffing models under paragraph (b) of this
section are required to participate in evaluations of their delivery of
ES services conducted by the Department.
(d) All States must comply with the requirements in this section no
later than January 22, 2026.
PART 653--SERVICES OF THE WAGNER-PEYSER ACT EMPLOYMENT SERVICE
SYSTEM
0
11. The authority citation for part 653 continues to read as follows:
Authority: Secs. 167, 189, 503, Public Law 113-128, 128 Stat.
1425 (Jul. 22, 2014); 29 U.S.C. chapter 4B; 38 U.S.C. part III,
chapters 41 and 42.
0
12. Amend Sec. 653.100 by revising paragraph (a) to read as follows:
Sec. 653.100 Purpose and scope of subpart.
(a) This subpart sets forth the principal regulations of the
Wagner-Peyser Act Employment Service (ES) concerning the provision of
services for MSFWs consistent with the requirement that all services of
the workforce development system be available to all job seekers in an
equitable and nondiscriminatory fashion. This includes ensuring MSFWs
have access to these services in a way that meets their unique needs.
MSFWs must receive services on a basis which is qualitatively
equivalent and quantitatively proportionate to services provided to
non-MSFWs.
* * * * *
0
13. Revise Sec. 653.101 to read as follows:
Sec. 653.101 Provision of services to migrant and seasonal
farmworkers.
SWAs must ensure that ES staff at one-stop centers offer MSFWs the
full range of career and supportive services, benefits and protections,
and job and training referral services as are provided to non-MSFWs.
SWAs must ensure ES staff at the one-stop centers tailor such ES
services in a way that accounts for individual MSFW preferences, needs,
skills, and the availability of job and training opportunities, so that
MSFWs are reasonably able to participate in the ES.
0
14. Amend Sec. 653.102 by revising the third sentence and removing the
fourth sentence to read as follows:
Sec. 653.102 Job information.
* * * SWAs must ensure ES staff at one-stop centers provide
assistance to MSFWs to access job order information easily and
efficiently.
0
15. Amend Sec. 653.103 by revising paragraphs (a) through (c) to read
as follows:
Sec. 653.103 Process for migrant and seasonal farmworkers to
participate in workforce development activities.
(a) Each ES office must determine whether participants and
reportable individuals are MSFWs as defined at Sec. 651.10 of this
chapter.
(b) SWAs must comply with the language access and assistance
requirements at 29 CFR 38.9 with regard to all individuals with limited
English proficiency (LEP), including MSFWs who are limited English
proficient individuals, as defined at 29 CFR 38.4(hh). This includes
ensuring ES staff comply with these language access and assistance
requirements.
(c) One-stop centers must provide MSFWs a list of available career
and supportive services.
* * * * *
0
16. Amend Sec. 653.107 by:
0
a. Revising the section heading and paragraphs (a)(1), (a)(2)(i) and
(ii), and (3);
0
b. Revising paragraphs (a)(4), the first sentence of (a)(5),
introductory text of paragraph (b), (b)(1), (b)(3), introductory text
of (b)(4), (b)(4)(i) and (vi), (b)(6), (b)(7), the second sentence of
(b)(8), and paragraphs (b)(11), (d)(2)(ii) through (v), and (d)(4) and
(5).
The revisions and additions read as follows:
Sec. 653.107 Outreach responsibilities and Agricultural Outreach
Plan.
(a) * * *
(1) Each SWA must ensure outreach staff conduct outreach as
described in paragraph (b) of this section on an ongoing basis. State
Administrators must ensure State Monitor Advocates (SMAs) and outreach
staff coordinate activities with WIOA title I sec. 167 grantees as well
as with public and private community service agencies and MSFW groups.
WIOA title I sec. 167 grantees' activities involving MSFWs does not
substitute for SWA outreach responsibilities.
(2) * * *
(i) Communicate the full range of workforce development services to
MSFWs; and
(ii) Conduct thorough outreach efforts with extensive follow-up
activities identified at paragraph (b)(5) of this section.
(3) When hiring or assigning outreach staff, SWAs must ensure
hiring officials:
(i) Seek and put a strong emphasis on hiring and assigning
qualified candidates who speak the language of a significant proportion
of the State MSFW population; and
(A) Who are from MSFW backgrounds; or
(B) Who have substantial work experience in farmworker activities.
(ii) Inform farmworker organizations and other organizations with
expertise concerning MSFWs of job openings and encourage them to refer
qualified applicants to apply.
(4) Each SWA must ensure that there are an adequate number of
outreach staff employed in the State to conduct MSFW outreach in each
service area of the State and to contact a majority of MSFWs in the
State annually. In the 20 States with the highest estimated year-round
MSFW activity, as identified by the Department, there must be full-
time, year-round outreach staff to conduct outreach duties. Full-time
means each
[[Page 82727]]
individual outreach staff person must spend 100 percent of their time
on the outreach responsibilities described in paragraph (b) of this
section. For the remainder of the States, there must be year-round
part-time outreach staff, and during periods of the highest MSFW
activity, there must be full-time outreach staff. These staffing levels
must align with and be supported by information about the estimated
number of farmworkers in the State and the farmworker activity in the
State as demonstrated in the State's Agricultural Outreach Plan (AOP)
pursuant to paragraph (d) of this section. All outreach staff must be
multilingual, if warranted by the characteristics of the MSFW
population in the State, and must spend a majority of their time in the
field.
(5) The SWA must publicize the availability of ES services through
such means as newspaper and electronic media publicity. * * *
* * * * *
(b) Outreach staff responsibilities. Outreach staff must locate and
contact MSFWs who are not being reached by the normal intake activities
conducted by the ES offices. Outreach staff responsibilities include
the activities identified in paragraphs (b)(1) through (11) of this
section.
(1) Outreach staff must explain to MSFWs at their working, living,
or gathering areas (including day-haul sites), by means of written and
oral presentations either spontaneous or recorded, the following:
* * * * *
(3) After making the presentation, outreach staff must urge the
MSFWs to go to the local one-stop center to obtain the full range of
employment and training services.
(4) If an MSFW cannot or does not wish to visit the local one-stop
center, outreach staff must offer to provide on-site the following:
(i) Assistance in the preparation of applications for ES services;
* * * * *
(vi) As needed, assistance in making appointments and arranging
transportation for individual MSFW(s) or members of their family to and
from local one-stop centers or other appropriate agencies.
* * * * *
(6) Outreach staff must be alert to observe the working and living
conditions of MSFWs and if an outreach staff member observes or
receives information about apparent violations, the outreach staff
member must document and refer the information to the appropriate ES
Office Manager (as described in Sec. 658.419 of this chapter).
(7) Outreach staff must be trained in one-stop center procedures
and in the services, benefits, and protections afforded MSFWs by the
ES, including training on protecting farmworkers against sexual
harassment, sexual coercion, assault, and human trafficking. Such
trainings are intended to help outreach staff identify when such issues
may be occurring in the fields and how to document and refer the cases
to the appropriate enforcement agencies. Outreach staff also must be
trained in the Complaint System procedures at part 658, subpart E, of
this chapter and be aware of the local, State, regional, and national
enforcement agencies that would be appropriate to receive referrals.
The program for such training must be formulated by the State
Administrator, pursuant to uniform guidelines developed by ETA. The SMA
must be given an opportunity to review and comment on the State's
program.
(8) * * * These records must include a daily log, a copy of which
must be sent monthly to the ES Office Manager and maintained on file
for at least 3 years. * * *
* * * * *
(11) Outreach staff in significant MSFW one-stop centers must
conduct especially vigorous outreach in their service areas. Outreach
activities must align with and be supported by information provided in
the State's AOP pursuant to paragraph (d) of this section.
* * * * *
(d) * * *
(2) * * *
(ii) Explain the materials, tools, and resources the State will use
for outreach;
(iii) Describe the SWA's proposed outreach activities to contact
MSFWs who are not being reached by the normal intake activities
conducted by the one-stop centers. The description must identify the
number of full-time and part-time outreach staff positions in the State
and must demonstrate that there are sufficient outreach staff to
conduct MSFW outreach in each service area of the State to contact a
majority of MSFWs in the State annually;
(iv) Describe the activities planned for providing the full range
of ES services to the agricultural community, including both MSFWs and
agricultural employers, through the one-stop centers; and
(v) Include a description of how the SWA intends to provide ES
staff in significant MSFW one-stop centers in accordance with Sec.
653.111.
* * * * *
(4) The AOP must be submitted in accordance with paragraph (d)(1)
of this section and planning guidance issued by the Department.
(5) The Annual Summaries required at Sec. 653.108(u) must update
the Department on the SWA's progress toward meeting the objectives set
forth in the AOP.
0
17. Revise Sec. 653.108 to read as follows:
Sec. 653.108 State Workforce Agency and State Monitor Advocate
responsibilities.
(a) State Administrators must ensure their SWAs monitor their own
compliance with ES regulations in serving MSFWs on an ongoing basis.
The State Administrator has overall responsibility for SWA self-
monitoring. The State Administrator and ES staff must not retaliate
against staff, including the SMA, for self-monitoring or raising any
issues or concerns regarding noncompliance with the ES regulations.
(b) The State Administrator must appoint an SMA who must be a SWA
official. The State Administrator must inform farmworker organizations
and other organizations with expertise concerning MSFWs of the opening
and encourage them to refer qualified applicants to apply. Among
qualified candidates, the SWAs must seek and put a strong emphasis on
hiring persons:
(1) Who are from MSFW backgrounds; or
(2) Who speak the language of a significant proportion of the State
MSFW population; or
(3) Who have substantial work experience in farmworker activities.
(c) The SMA must be an individual who:
(1) Is a senior-level ES staff employee;
(2) Reports directly to the State Administrator or State
Administrator's designee, such as a director or other appropriately
titled official in the State Administrator's office, who has the
authority to act on behalf of the State Administrator, except that if a
designee is selected, they must not be the individual who has direct
program oversight of the ES; and
(3) Has the knowledge, skills, and abilities necessary to fulfill
the responsibilities as described in this subpart.
(d) The SMA must have sufficient authority, staff, resources, and
access to top management to monitor compliance with the ES regulations.
Staff assigned to the SMA are intended to help the SMA carry out the
duties set forth in this section and must not perform work that
conflicts with any of the SMA's duties, such as outreach
responsibilities
[[Page 82728]]
required by Sec. 653.107, ARS processing under subpart F of this part,
and complaint processing under subpart E of part 658. The number of ES
staff positions assigned to the SMA must be determined by reference to
the number of MSFWs in the State, (as measured at the time of the peak
MSFW population), and the need for monitoring activity in the State.
(e) The SMA must devote full-time staffing to the SMA functions
described in this section. No State may dedicate less than full-time
staffing for the SMA position, unless the Regional Administrator, with
input from the Regional Monitor Advocate, provides written approval.
Any State that proposes less than full-time dedication must demonstrate
to the Regional Administrator and Regional Monitor Advocate that all
SMA functions can be effectively performed with part-time staffing. The
SMA must not perform work that conflicts with any of the SMA's duties,
such as outreach responsibilities required by Sec. 653.107, ARS
processing under subpart F of this part, and complaint processing under
subpart E of part 658.
(f) All SMAs and their staff must attend training session(s)
offered by the Regional Monitor Advocate(s) and National Monitor
Advocate and their staff and those necessary to maintain competency and
enhance the SMA's understanding of the unique needs of farmworkers.
Such trainings must include those identified by the SMA's Regional
Monitor Advocate and may include those offered by the Occupational
Safety and Health Administration, the Department's Wage and Hour
Division, U.S. Equal Employment Opportunity Commission, the Immigrant
and Employee Rights Section of the Department of Justice's Civil Rights
Division, the Department's Civil Rights Center, and other organizations
offering farmworker-related information.
(g) The SMA must provide any relevant documentation requested from
the SWA by the Regional Monitor Advocate or the National Monitor
Advocate.
(h) The SMA must:
(1) Conduct an ongoing review of the delivery of services and
protections afforded by the ES regulations to MSFWs by the SWA and ES
offices. This includes:
(i) Monitoring compliance with Sec. 653.111;
(ii) Monitoring the ES services that the SWA and one-stop centers
provide to MSFWs to assess whether they are qualitatively equivalent
and quantitatively proportionate to the services that the SWA and one-
stop centers provide to non-MSFWs; and
(iii) Reviewing the appropriateness of informal resolution of
complaints and apparent violations as documented in the complaint logs.
(2) Without delay, must advise the SWA and ES offices of problems,
deficiencies, or improper practices in the delivery of services and
protections afforded by these regulations and, if warranted, specify
the corrective action(s) necessary to address these deficiencies. When
the SMA finds corrective action(s) necessary, the ES Office Manager or
other appropriate ES staff must develop a corrective action plan in
accordance with the requirements identified at paragraph (h)(3)(v) of
this section. The SMA also must advise the SWA on means to improve the
delivery of services.
(3) Participate in on-site reviews of one-stop centers on a regular
basis (regardless of whether or not they are designated significant
MSFW one-stop centers) using the procedures set forth in paragraphs
(h)(3)(i) through (vii) of this section.
(i) Before beginning an onsite review, the SMA or review staff must
study:
(A) Program performance data;
(B) Reports of previous reviews;
(C) Corrective action plans developed as a result of previous
reviews;
(D) Complaint logs, as required by the regulations under part 658
of this chapter, including logs documenting the informal resolution of
complaints and apparent violations; and
(E) Complaints elevated from the office or concerning the office.
(ii) The SMA must ensure that the onsite review format, developed
by ETA, is used as a guideline for onsite reviews.
(iii) Upon completion of an onsite monitoring review, the SMA must
hold one or more wrap-up sessions with the ES Office Manager and staff
to discuss any findings and offer initial recommendations and
appropriate technical assistance.
(iv) After each review, the SMA must conduct an in-depth analysis
of the review data. The conclusions, including findings and areas of
concern and recommendations of the SMA, must be put in writing and must
be sent directly to the State Administrator, to the official of the SWA
with authority over the ES office, and other appropriate SWA officials.
(v) If the review results in any findings of noncompliance with the
regulations under this chapter, the SMA's report must include the
necessary corrective action(s). To resolve the findings, the ES Office
Manager or other appropriate ES staff must develop and propose a
written corrective action plan. The plan must be approved or revised by
SWA officials and the SMA. The plan must include the actions required
to correct any compliance issues within 30 business days or, if the
plan allows for more than 30 business days for full compliance, the
length of and the reasons for the extended period and the major interim
steps to correct the compliance issues must be specifically stated.
SWAs are responsible for assuring and documenting that the ES office is
in compliance within the time period designated in the plan.
(vi) SWAs must submit to the appropriate ETA regional office copies
of the onsite review reports and corrective action plans for ES
offices.
(vii) The SMA may delegate the review described in paragraph (h)(3)
of this section to the SMA's staff, if the SMA finds such delegation
necessary. In such event, the SMA is responsible for and must approve
the written report of the review.
(4) Ensure all significant MSFW one-stop centers not reviewed
onsite by Federal staff are reviewed at least once per year by the SMA
or their staff, and that, if necessary, those ES offices in which
significant problems are revealed by required reports, management
information, the Complaint System, or other means are reviewed as soon
as possible.
(5) Review and approve the SWA's AOP.
(6) On a regular basis, review outreach staff's daily logs and
other reports including those showing or reflecting the outreach
staff's activities.
(7) Write and submit annual summaries to the State Administrator
with a copy to the Regional Administrator and the National Monitor
Advocate.
(i) The SMA must participate in Federal reviews conducted pursuant
to part 658, subpart G, of this chapter, as requested by the Regional
or National Monitor Advocate.
(j) The SMA must monitor the performance of the Complaint System,
as set forth at Sec. Sec. 658.400 and 658.401 of this chapter. The SMA
must review the ES office's informal resolution of complaints relating
to MSFWs and must ensure that the ES Office Manager transmits copies of
the Complaint System logs pursuant to part 658, subpart E, of this
chapter to the SWA.
(k) The SMA must serve as an advocate to improve services for
MSFWs.
(l) The SMA must establish an ongoing liaison with WIOA sec. 167
[[Page 82729]]
National Farmworker Jobs Program (NFJP) grantees and other
organizations serving farmworkers, employers, and employer
organizations in the State.
(m) The SMA must establish an ongoing liaison with the State-level
Equal Opportunity (E.O.) Officer.
(n) The SMA must meet (either in person or by alternative means),
at minimum, quarterly, with representatives of the organizations
pursuant to paragraphs (l) and (m) of this section, to receive input on
improving coordination with ES offices or improving the coordination of
services to MSFWs. To foster such collaboration, the SMAs must
communicate freely with these organizations. The SMA must also
establish Memorandums of Understanding (MOUs) with the NFJP grantees
and may establish MOUs with other organizations serving farmworkers as
appropriate.
(o) The SMA must conduct frequent field visits to the working,
living, and gathering areas of MSFWs, and must discuss the SWA's
provision of ES services and other employment-related programs with
MSFWs, crew leaders, and employers. Records must be kept of each such
field visit.
(p) The SMA must participate in the appropriate regional public
meeting(s) held by the Department of Labor Regional Farm Labor
Coordinated Enforcement Committee, other Occupational Safety and Health
Administration and Wage and Hour Division task forces, and other
committees as appropriate.
(q) The SMA must ensure that outreach efforts in all significant
MSFW one-stop centers are reviewed at least yearly. This review will
include accompanying at least one outreach staff from each significant
MSFW one-stop center on field visits to MSFWs' working, living, and/or
gathering areas. The SMA must review findings from these reviews with
the ES Office Managers.
(r) The SMA must review on at least a quarterly basis all
statistical and other MSFW-related data reported by ES offices in
order:
(1) To determine the extent to which the SWA has complied with the
ES regulations; and
(2) To identify the areas of non-compliance.
(s) The SMA must have full access to all statistical and other
MSFW-related information gathered by SWAs and ES offices and may
interview ES staff with respect to reporting methods. After each
review, the SMA must consult, as necessary, with the SWA and ES offices
and provide technical assistance to ensure accurate reporting.
(t) The SMA must review and comment on proposed State ES
directives, manuals, and operating instructions relating to MSFWs and
must ensure:
(1) That they accurately reflect the requirements of the
regulations; and
(2) That they are clear and workable. The SMA also must explain and
make available at the requestor's cost, pertinent directives and
procedures to employers, employer organizations, farmworkers,
farmworker organizations, and other parties expressing an interest in a
readily identifiable directive or procedure issued and receive
suggestions on how these documents can be improved.
(u) The SMA must prepare for the State Administrator, the Regional
Monitor Advocate, and the National Monitor Advocate an Annual Summary
describing how the State provided ES services to MSFWs within the State
based on statistical data, reviews, and other activities as required in
this chapter. The summary must include:
(1) A description of the activities undertaken during the program
year by the SMA pertaining to their responsibilities set forth in this
section and other applicable regulations in this chapter.
(2) An assurance that the SMA is a senior-level official who
reports directly to the State Administrator or the State
Administrator's designee as described at paragraph (c) of this section.
(3) An evaluation of SMA staffing levels, including:
(i) An assurance the SMA devotes all of their time to Monitor
Advocate functions or, if the SMA conducts their functions on a part-
time basis, an assessment of whether all SMA functions are able to be
effectively performed on a part-time basis; and
(ii) An assessment of whether the performance of SMA functions
requires increased time by the SMA (if part-time) or an increase in the
number of ES staff assigned to assist the SMA in the performance of SMA
functions, or both.
(4) A summary of the monitoring reviews conducted by the SMA,
including:
(i) A description of any problems, deficiencies, or improper
practices the SMA identified in the delivery of services;
(ii) A summary of the actions taken by the SWA to resolve the
problems, deficiencies, or improper practices described in its service
delivery; and
(iii) A summary of any technical assistance the SMA provided for
the SWA, ES offices, and outreach staff.
(5) A summary and analysis of the outreach efforts undertaken by
all significant and non-significant MSFW one-stop centers, as well as
the results of those efforts, and an analysis of whether the outreach
levels and results were adequate.
(6) A summary of the State's actions taken under the Complaint
System described in part 658, subpart E, of this chapter, identifying
any challenges, complaint trends, findings from reviews of the
Complaint System, trainings offered throughout the year, and steps
taken to inform MSFWs and employers, and farmworker advocacy groups
about the Complaint System.
(7) A summary of how the SMA is working with WIOA sec. 167 NFJP
grantees, the State-level E.O. Officer, and other organizations serving
farmworkers, employers, and employer organizations in the State, and an
assurance that the SMA is meeting at least quarterly with these
individuals and representatives of these organizations.
(8) A summary of the statistical and other MSFW-related data and
reports gathered by SWAs and ES offices for the year, including an
overview of the SMA's involvement in the SWA's reporting systems.
(9) A summary of the training conducted for ES staff on techniques
for accurately reporting data.
(10) A summary of activities related to the AOP and an explanation
of whether those activities helped the State reach the objectives
described in the AOP. At the end of the 4-year AOP cycle, the summary
must include a synopsis of the SWA's achievements over the previous 4
years to accomplish the objectives set forth in the AOP, and a
description of the objectives which were not achieved and the steps the
SWA will take to address those deficiencies.
(11) For significant MSFW one-stop centers, a summary of the
State's efforts to comply with Sec. 653.111.
0
18. Amend Sec. 653.109 by:
0
a. Revising paragraph (b)(9);
0
b. Redesignating paragraph (b)(10) as paragraph (b)(11);
0
c. Adding a new paragraph (b)(10); and
0
d. Revising paragraphs (g), (h) introductory text, and (h)(1).
The revision and additions read as follows:
Sec. 653.109 Data collection and performance accountability measures.
* * * * *
(b) * * *
(9) Agricultural clearance orders (including field checks), MSFW
[[Page 82730]]
complaints and apparent violations, and monitoring activities;
(10) The number of reportable individuals and participants who are
MSFWs; and
* * * * *
(g) Meet equity indicators that address ES controllable services
and include, at a minimum, individuals referred to a job, receiving job
development, and referred to supportive or career services.
(h) Meet minimum levels of service in significant MSFW States. That
is, only significant MSFW States will be required to meet minimum
levels of service to MSFWs. Minimum level of service indicators must
include, at a minimum, individuals placed in a job, individuals placed
long-term (150 days or more) in a non-agricultural job, a review of
significant MSFW one-stop centers, field checks conducted, outreach
contacts per quarter, and processing of complaints. The determination
of the minimum service levels required of significant MSFW States must
be based on the following:
(1) Past SWA performance in serving MSFWs, as reflected in on-site
reviews and data collected under paragraph (b) of this section.
* * * * *
0
19. Amend Sec. 653.110 by revising paragraph (b) to read as follows:
Sec. 653.110 Disclosure of data.
* * * * *
(b) If a request for data held by a SWA is made to the ETA national
or regional office, ETA must forward the request to the SWA for
response.
* * * * *
0
20. Amend Sec. 653.111 by revising the section heading and paragraphs
(a) and (b) to read as follows:
Sec. 653.111 State Workforce Agency staffing requirements for
significant MSFW one-stop centers.
(a) The SWA must staff significant MSFW one-stop centers in a
manner facilitating the delivery of ES services tailored to the unique
needs of MSFWs. This includes recruiting qualified candidates who meet
the criteria in Sec. 653.107(a)(3).
(b) The SMA, Regional Monitor Advocate, or the National Monitor
Advocate, as part of their regular reviews of SWA compliance with these
regulations, must monitor the extent to which the SWA has complied with
its obligations under paragraph (a) of this section.
* * * * *
0
21. Amend Sec. 653.501 by:
0
a. Revising the introductory text of paragraph (a) and paragraph
(a)(1);
0
b. Revising paragraph (c)(3) introductory text; and
0
c. Revising the first sentence in the introductory text of paragraph
(d)(1) and paragraphs (d)(3), (6), (10), and (11).
The revisions and additions read as follows:
Sec. 653.501 Requirements for processing clearance orders.
(a) Assessment of need. No ES staff may place a job order seeking
workers to perform farmwork into intrastate or interstate clearance
unless:
(1) The ES office and employer have attempted and have not been
able to obtain sufficient workers within the local labor market area;
or
* * * * *
(c) * * *
(3) SWAs must ensure that the employer makes the following
assurances in the clearance order:
* * * * *
(d) * * *
(1) The order-holding ES office must transmit an electronic copy of
the approved clearance order to its SWA. * * *
* * * * *
(3) The approval process described in this paragraph (d)(3) does
not apply to clearance orders that are attached to applications for
foreign temporary agricultural workers pursuant to part 655, subpart B,
of this chapter; such clearance orders must be sent to the processing
center as directed by ETA in guidance. For noncriteria clearance orders
(orders that are not attached to applications under part 655, subpart
B, of this chapter), the ETA regional office must review and approve
the order within 10 business days of its receipt of the order, and the
Regional Administrator or their designee must approve the areas of
supply to which the order will be extended. Any denial by the Regional
Administrator or their designee must be in writing and state the
reasons for the denial.
* * * * *
(6) ES staff must assist all farmworkers to understand the terms
and conditions of employment set forth in intrastate and interstate
clearance orders and must provide such workers with checklists showing
wage payment schedules, working conditions, and other material
specifications of the clearance order.
* * * * *
(10) Applicant-holding offices must provide workers referred on
clearance orders with a checklist summarizing wages, working conditions
and other material specifications in the clearance order. The checklist
must include language notifying the worker that a copy of the original
clearance order is available upon request.
(11) The applicant-holding office must give each referred worker a
copy of the list of worker's rights described in Departmental guidance.
* * * * *
0
22. Amend Sec. 653.502 by revising paragraph (d) to read as follows:
Sec. 653.502 Conditional access to the Agricultural Recruitment
System.
* * * * *
(d) Notice of denial. If the Regional Administrator denies the
request for conditional access to the intrastate or interstate
clearance system they must provide written notice to the employer, the
appropriate SWA, and the ES office, stating the reasons for the denial.
* * * * *
0
23. Amend Sec. 653.503 by revising paragraphs (a) and (b) to read as
follows:
Sec. 653.503 Field checks.
(a) If a worker is placed on a clearance order, the SWA must notify
the employer in writing that the SWA, through its ES offices, and/or
Federal staff, must conduct unannounced field checks to determine and
document whether wages, hours, transportation, and working and housing
conditions are being provided as specified in the clearance order.
(b) Where the SWA has made placements on 10 or more agricultural
clearance orders (pursuant to this subpart) during the quarter, the SWA
must conduct field checks on at least 25 percent of the total of such
orders. Where the SWA has made placements on nine or fewer job orders
during the quarter (but at least one job order), the SWA must conduct
field checks on 100 percent of all such orders. This requirement must
be met on a quarterly basis.
* * * * *
0
24. Add Sec. 653.504 to read as follows:
Sec. 653.504 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.
[[Page 82731]]
PART 658--ADMINISTRATIVE PROVISIONS GOVERNING THE WAGNER-PEYSER ACT
EMPLOYMENT SERVICE
0
25. Revise the authority citation for part 658 to read as follows:
Authority: Pub. L. 113-128, 128 Stat. 1425 (July 22, 2014); 29
U.S.C. chapter 4B.
0
26. Amend Sec. 658.400 by revising the second sentence of paragraph
(a) and paragraph (d) to read as follows:
Sec. 658.400 Purpose and scope of subpart.
(a) * * * 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. * * *
* * * * *
(d) A complainant may designate an individual to act as their
representative.
0
27. Amend Sec. 658.410 by:
0
a. Revising paragraphs (c), (g), (h), (k), and (m);
0
b. Removing paragraph (n); and
0
c. Redesignating (o) as paragraph (n) and revising the newly
redesignated paragraph (n)..
The revisions and redesignation read as follows:
Sec. 658.410 Establishment of local and State complaint systems.
* * * * *
(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.
* * * * *
(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).
* * * * *
(k) The appropriate ES staff processing a complaint must offer to
assist the complainant through the provision of appropriate services.
* * * * *
(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.
0
28. Amend Sec. 658.411 by:
0
a. Revising paragraphs (a)(2)(i) and (ii), (a)(3), the first sentence
of paragraph (a)(4), and paragraphs (b)(1) introductory text,
(b)(1)(i), and (b)(1)(ii)(A), (B), (D), and (E);
0
b. Adding paragraph (b)(1)(ii)(F); and
0
c. Revising paragraphs (c), (d)(1) introductory text, (d)(1)(i),
(d)(1)(ii)(A), (B), (C), and (D), (d)(1)(iii) and (iv), the
introductory text of (d)(3), (d)(4), the introductory text of
(d)(5)(i), (d)(5)(ii), (d)(5)(iii)(G), and (d)(6).
The revisions and addition read as follows:
Sec. 658.411 Action on complaints.
(a) * * *
(2) * * *
(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
* * * * *
(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. * * *
(b) * * *
(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 or State representative is not required to follow
up with the complainant.
(ii) * * *
(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
[[Page 82732]]
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.
* * * * *
(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.
* * * * *
(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.
(d) * * *
(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) * * *
(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.
* * * * *
(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:
* * * * *
(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:
(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) * * *
(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.
* * * * *
(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.
* * * * *
0
29. Amend Sec. 658.417 by revising paragraph (b) to read as follows:
Sec. 658.417 State 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.
* * * * *
0
30. Amend Sec. 658.419 by:
0
a. Revising paragraph (a); and
0
b. Adding paragraph (d).
The revisions and addition read as follows:
Sec. 658.419 Apparent violations.
(a) If an ES staff member observes, has reason to believe, or is in
receipt of
[[Page 82733]]
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.
* * * * *
(d) Apparent violations of nondiscrimination laws must be processed
according to the procedures described in Sec. 658.411(c).
0
31. Amend Sec. 658.420 by revising paragraphs (b) and (c) to read as
follows:
Sec. 658.420 Responsibilities of the Employment and Training
Administration 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.
* * * * *
0
32. Amend Sec. 658.421 by revising the section heading, the first
sentence of paragraph (a)(1), introductory text of (a)(2), the first
sentences of paragraphs (a)(2)(i) and (b), and paragraphs (c) and (d)
to read as follows:
Sec. 658.421 Processing of Wagner-Peyser Act Employment Service
regulation-related complaints.
(a) 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. * * *
(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. * * *
* * * * *
(b) The ETA regional office is responsible for processing appeals
of determinations made on complaints at the SWA level. * * *
(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.
(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.
* * * * *
0
33. Amend Sec. 658.422 by revising the section heading and paragraphs
(a) through (c) to read as follows:
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).
* * * * *
0
34. Amend Sec. 658.424 by revising paragraph (d) to read as follows:
Sec. 658.424 Proceedings before the Office of Administrative Law
Judges.
* * * * *
(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.
* * * * *
0
35. Amend Sec. 658.425 by revising paragraph (a)(1) to read as
follows:
Sec. 658.425 Decision of Department of Labor Administrative Law
Judge.
(a) * * *
(1) Rule that they lack jurisdiction over the case:
* * * * *
0
36. Add Sec. 658.427 to read as follows:
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.
0
37. Amend Sec. 658.602 by revising paragraphs (f)(2) through (4), (g),
(j) introductory text, (j)(8), (l) through (n), (o) introductory text
paragraph, (p) through (r), (s) introductory text
[[Page 82734]]
paragraph, and (s)(2) and (3) to read as follows:
Sec. 658.602 Employment and Training Administration National Office
responsibility.
* * * * *
(f) * * *
(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;
* * * * *
(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.
* * * * *
(j) The NMA must monitor and assess SWA compliance with ES
regulations affecting MSFWs on a continuing basis. Their assessment
must consider:
* * * * *
(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.
* * * * *
(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:
* * * * *
(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.
(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:
* * * * *
(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.
* * * * *
0
38. Amend Sec. 658.603 by revising paragraphs (d)(7), (f)(1) through
(3), (g), (i), introductory text of paragraph (k), (k)(7) and (8), (m),
(n)(2) and (3), (o)(1), (p), (q), and (s) through (v) to read as
follows:
Sec. 658.603 Employment and Training Administration regional office
responsibility.
* * * * *
(d) * * *
(7) Unannounced field checks of a sample of agricultural work sites
to which ES placements have been made through the clearance system to
[[Page 82735]]
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.
* * * * *
(f) * * *
(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;
* * * * *
(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.
* * * * *
(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).
* * * * *
(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 ES
services to MSFWs, seeking out and using:
* * * * *
(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.
* * * * *
(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) * * *
(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.
* * * * *
(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 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.
* * * * *
(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.
[[Page 82736]]
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.
* * * * *
0
39. Amend Sec. 658.604 by revising paragraph (c)(3)(i) to read as
follows:
Sec. 658.604 Assessment and evaluation of program performance data.
* * * * *
(c) * * *
(3) * * *
(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.
* * * * *
0
40. Amend Sec. 658.702 by revising paragraphs (a), (d), (e), (f)(2),
and (h)(5) to read as follows:
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.
* * * * *
(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) * * *
(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 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.
* * * * *
(h) * * *
(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.
* * * * *
0
41. Amend Sec. 658.704 by revising the fifth sentence of paragraph (d)
and the fourth sentence of (f)(2) to read as follows:
Sec. 658.704 Remedial actions.
* * * * *
(d) * * * The Regional Administrator must notify the SWA of their
findings. * * *
* * * * *
(f) * * *
(2) * * * 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. * * *
0
42. Amend Sec. 658.705 by revising the introductory text of paragraphs
(b) and (b)(3) and paragraphs (c) through (f) to read as follows:
Sec. 658.705 Decision to decertify.
* * * * *
(b) The Assistant Secretary must grant the request for
decertification unless they make a finding that:
* * * * *
(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:
* * * * *
(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
[[Page 82737]]
(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.
0
43. Amend Sec. 658.706 to read as follows:
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.
0
44. Amend Sec. 658.707 by revising paragraphs (a) and (b) to read as
follows:
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 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.
* * * * *
Laura P. Watson,
Deputy Assistant Secretary for Employment and Training, Labor.
[FR Doc. 2023-25372 Filed 11-22-23; 8:45 am]
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