Proposed Rule2022-07628
Wagner-Peyser Act Staffing
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
April 20, 2022
Issuing agencies
Labor DepartmentEmployment and Training Administration
Abstract
The U.S. Department of Labor (Department or DOL) is issuing a notice of proposed rulemaking (NPRM) that, if finalized, would require States to use State merit staff to provide Wagner-Peyser Act Employment Service (ES) services. If finalized, this proposal would extend the merit-staffing requirement to those States that previously had been operating different staffing models. The proposed changes would create a uniform standard of ES services provision for all States and align the use of State merit staff for ES services with the requirement that States administer the Unemployment Insurance (UI) programs with State merit staff. The Department is additionally proposing revisions to the ES regulations to strengthen the provision of services to migrant and 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).
Full Text
<html>
<head>
<title>Federal Register, Volume 87 Issue 76 (Wednesday, April 20, 2022)</title>
</head>
<body><pre>
[Federal Register Volume 87, Number 76 (Wednesday, April 20, 2022)]
[Proposed Rules]
[Pages 23700-23744]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-07628]
[[Page 23699]]
Vol. 87
Wednesday,
No. 76
April 20, 2022
Part II
Department of Labor
-----------------------------------------------------------------------
Employment and Training Administration
-----------------------------------------------------------------------
20 CFR Parts 651, 652, 653, et al.
Wagner-Peyser Act Staffing; Proposed Rule
Federal Register / Vol. 87 , No. 76 / Wednesday, April 20, 2022 /
Proposed Rules
[[Page 23700]]
-----------------------------------------------------------------------
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: Proposed rule; request for comment.
-----------------------------------------------------------------------
SUMMARY: The U.S. Department of Labor (Department or DOL) is issuing a
notice of proposed rulemaking (NPRM) that, if finalized, would require
States to use State merit staff to provide Wagner-Peyser Act Employment
Service (ES) services. If finalized, this proposal would extend the
merit-staffing requirement to those States that previously had been
operating different staffing models. The proposed changes would create
a uniform standard of ES services provision for all States and align
the use of State merit staff for ES services with the requirement that
States administer the Unemployment Insurance (UI) programs with State
merit staff. The Department is additionally proposing revisions to the
ES regulations to strengthen the provision of services to migrant and
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).
DATES: To be ensured consideration, comments must be received on or
before June 21, 2022.
ADDRESSES: You may submit written comments electronically via the
Federal eRulemaking portal (<a href="https://www.regulations.gov">https://www.regulations.gov</a>). Follow the
instructions on the website for submitting comments (under ``FAQ'' >
``Commenting''). Label all submissions with docket number ETA-2022-0003
and RIN 1205-AC02.
Please be advised that the Department will post all comments
received that relate to this proposed rule on <a href="https://www.regulations.gov">https://www.regulations.gov</a> without making any change to the comments or
redacting any information. The website is the Federal eRulemaking
portal, and all comments posted there are available and accessible to
the public. Therefore, the Department recommends that commenters remove
personal information, such as Social Security numbers, personal
addresses, telephone numbers, and email addresses, included in their
comments. It is the responsibility of the commenter to safeguard
personal information.
Comments under the Paperwork Reduction Act of 1995 (PRA): In
addition to filing comments on any aspect of this proposed rule with
the Department, interested parties may submit comments that concern the
information collection (IC) aspects of this proposed rule to the Office
of Information and Regulatory Affairs at <a href="https://www.reginfo.gov/public/do/PRAMain">https://www.reginfo.gov/public/do/PRAMain</a>. Find relevant information collections by selecting
``Currently under Review--Open for Public Comments'' or by using the
search function.
FOR FURTHER INFORMATION CONTACT: Heidi Casta, Acting Administrator,
Office of Policy Development and Research, Employment and Training
Administration, U.S. Department of Labor, 200 Constitution Avenue NW,
Room N-5641, Washington, DC 20210, Telephone: (202) 693-3700 (voice)
(this is not a toll-free number) or 1-800-326-2577 (TDD).
SUPPLEMENTARY INFORMATION:
Preamble Table of Contents
I. Acronyms and Abbreviations
II. Statutory and Legal Background
A. Required Use of State Merit Staff for Delivery of ES Services
B. Legal Basis
III. Section-by-Section Discussion of Proposed 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
IV. Rulemaking Analyses and Notices
A. Executive Orders 12866 (Regulatory Planning and Review) and
13563 (Improving Regulation and Regulatory Review)
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)
AOP Agricultural Outreach Plan
ARS Agricultural Recruitment System
BFOQ bona fide occupational qualification
BLS U.S. Bureau of Labor Statistics
CFR Code of Federal Regulations
CNPC Chicago National Processing Center
COVID-19 coronavirus disease 2019
Complaint System Employment Service and Employment-Related Law
Complaint System
CRC DOL Civil Rights Center
Department or DOL U.S. Department of Labor
EEOC Equal Employment Opportunity Commission
E.O. Executive Order
EO Equal Opportunity
ES Wagner-Peyser Act Employment Service
ETA Employment and Training Administration
FR Federal Register
FTE(s) full-time equivalent(s)
FUTA Federal Unemployment Tax Act
IC(s) information collection
ICR(s) information collection request
IPA Intergovernmental Personnel Act of 1970
LEP limited English proficient
MOU(s) memorandum/a of understanding
MSFW(s) migrant and seasonal farmworker(s)
NAICS North American Industry Classification System
NFJP National Farmworker Jobs Program
NMA National Monitor Advocate
NPRM or proposed rule notifice of proposed rulemaking
O*NET Occupational Information Network
OEWS Occupational Employment and Wage Statistics
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
PIRL Participant Individual Record Layout
PRA Paperwork Reduction Act of 1995
Pub. L. Public Law
PY Program Year
RA(s) Regional Administrator(s)
RFA Regulatory Flexibility Act
RIN Regulation Identifier Number
RMA(s) Regional Monitor Advocate
Secretary Secretary of Labor
SMA(s) State Monitor Advocate(s)
SOC Standard Occupational Classification
SSA Social Security Act
Stat. United States Statutes at Large
SWA(s) State Workforce Agency/ies
TEGL Training and Employment Guidance Letter
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
WIOA Workforce Innovation and Opportunity Act
[[Page 23701]]
II. Statutory and Legal Background
A. Required Use of State Merit Staff for Delivery of ES Services
The Wagner-Peyser Act of 1933 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 bringing together
individuals seeking employment with employers 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-services offices. This NPRM would amend
regulations in 20 CFR parts 651, 652, 653, and 658, and provide States
with a uniform standard of ES services provision. States would be
required to use State merit staff to provide ES services. The
Department also is proposing targeted revisions to the regulations at
parts 651, 653, and 658. These proposed revisions are intended to
ensure that State Workforce Agencies (SWAs) provide MSFWs with adequate
access to ES services and that the role of the State Monitor Advocate
(SMA) is effective. In addition, this NPRM would amend parts 651, 652,
653, and 658 to further integrate gender-inclusive language. Finally,
the Department is proposing 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.\1\ The
Department consistently applied this requirement, with minor
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. Thereafter, 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). All three States
continued to operate as demonstration States with approved staffing
flexibility through an exemption in their approved State plans.\2\
Through rulemaking effective February 5, 2020, the Department removed
the requirement that ES services be provided only through the use of
State merit staff. See Wagner-Peyser Act Staffing Flexibility; Final
Rule, 85 FR 592 (Jan. 6, 2020) (2020 Final Rule). In the preamble to
this rule, the Department explained that it sought to allow States
maximum flexibility in staffing arrangements. Id. Accordingly, under
current regulations, States may use a variety of staffing models to
provide ES services.
---------------------------------------------------------------------------
\1\ 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).
\2\ See WIOA DOL-only Rule, 81 FR at 56267 and 56341 (2016).
---------------------------------------------------------------------------
The Department has reassessed the approach adopted in the 2020
Final Rule and has determined that alignment of ES and UI staffing,
which would allow ES staff to respond to surges of demand in UI, is
more important than the efficiencies that flexibility may promote.
Accordingly, as discussed below, the Department is proposing to
require, with no exceptions, that States use State merit-staff
employees to provide ES services. This NPRM proposes to require that
all States, including the prior ``demonstration States,'' use State
merit-staff employees to deliver ES services. This proposed staffing
requirement would apply to all ES services, including services provided
to MSFWs.
This proposal would once again align the provision of ES services
with the requirement that States administer the UI programs with State
merit staff. The ES system is designed to ``promote the establishment
and maintenance of a national system of public employment service
offices,'' \3\ 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 reenter the workforce. The Department thinks that it is vital
that the ES be administered so that services are delivered effectively
and equitably to UI beneficiaries and other ES customers.
---------------------------------------------------------------------------
\3\ 29 U.S.C. 49.
---------------------------------------------------------------------------
ES supports the work-test for UI, whereby UI recipients must
demonstrate as a condition of continued UI receipt that they are
workforce attached.\4\ This is includes various State-specific
requirements including being able to work, available to work, and
actively seeking work. Further, State merit ES staff are best
positioned to and often do provide surge capacity for UI administration
and adjudication.\5\ The proposed rule ensures States are universally
equipped to use cross-trained ES staff to assist in processing UI
claims, assist UI claimants, and promote reemployment in times of high
demand for such services. For example, the recent stress placed upon
State UI systems in response to the coronavirus disease 2019 (COVID-19)
pandemic served to highlight the necessity of States to be able to rely
on eligible State merit staff who are already cross-trained or able to
be quickly cross-trained to assist UI claimants during times of high
demand placed on State UI systems. States have experienced the benefits
of cross-training staff to assist during recessions, the onset of
natural disasters, and mass regional layoffs, in which State merit
staff are needed to assist with State-level decisions and functions.
Emergencies such as natural disasters are occurring across States with
increased frequency such that this need for surge capacity and cross-
trained staff is becoming increasingly necessary. States can assist one
another when one is impacted by a natural disaster, where non-impacted
State merit staff, including cross-trained ES staff, provide claims
adjudication assistance, such as fact finding/document analysis and
claims processing of UI and Disaster Unemployment Assistance claims.
Although the COVID-19 pandemic is an historically unprecedented event,
in addition to disaster response, the UI system has been a key economic
stabilizer in times of need such as the Great Recession, whereby State
UI systems benefitted from cross-trained ES staff to provide extra
capacity for UI administration and adjudication. Historical data from
1971 through 2021 indicates regular and periodic increases in the
number of UI initial claims and first payments in which having ES staff
who are already cross-trained or able to be quickly cross-trained to
assist UI claimants would be beneficial. The adjudication of UI claims
is work that must be performed by State merit staff.\6\ Therefore,
staff to assist with claims processing and adjudication must be merit
staff directly employed by the State and available for States to
redirect
[[Page 23702]]
their work. Requiring that ES staff be State merit staff would allow
the States to use ES staff to carry out both ES services and necessary
UI functions.
---------------------------------------------------------------------------
\4\ Federal Unemployment Tax Act (FUTA) sec. 3304(a)(1); Social
Security Act (SSA) sec. 303(a)(2).
\5\ SSA sec. 303(a)(1) provides that the Secretary shall make no
certification for payment to any State unless they find that the law
of such State, approved by the Secretary under FUTA, includes
provision for ``[s]uch methods of administration (including after
January 1, 1940, methods relating to the establishment and
maintenance of personnel standards on a merit basis, except that the
Secretary . . . shall exercise no authority with respect to the
selection, tenure of office, and compensation of any individual
employed in accordance with such methods) as are found by the
Secretary . . . to be reasonably calculated to insure full payment
of unemployment compensation when due.''
\6\ See 42 U.S.C. 503(a)(1).
---------------------------------------------------------------------------
In response to the COVID-19 pandemic, emergency legislation related
to COVID-19 provided States the ability on a limited and temporary
emergency basis to recruit staff on a non-merit basis to quickly
process UI applications and claims.\7\ However, relying on such time-
limited legislative action is not a viable, long-term solution,
particularly as providing adequate training for UI adjudicators takes
several months to a year. Furthermore, emergency legislation related to
COVID-19 does not provide flexibility in future emergencies. Requiring
ES labor exchange services to be provided by State merit staff will
help ensure that States have the ability to shift staff resources
during future exigencies affecting State-level functions and UI claims
where time-limited legislative solutions are not available and there is
a pressing need to have cross-trained staff who are legally permitted
to assist with UI services.
---------------------------------------------------------------------------
\7\ See sec. 4102(b) of the Families First Coronavirus Response
Act (Pub. L. 116-127), including Division D Emergency Unemployment
Insurance Stabilization and Access Act of 2020 (EUISAA); sec. 2106
of the Coronavirus Aid, Relief, and Economic Security Act of 2020
(CARES Act) (Pub. L. 116-136); sec. 205 of the Continued Assistance
Act (Pub. L. 116-260); and sec. 9015 of the American Rescue Plan Act
of 2021 (Pub. L. 117-2). This flexibility only applied for
responding to workload and increased demand resulting from the
spread of COVID-19 and was limited to engaging temporary staff,
rehiring retirees or former employees on a non-competitive basis,
and other temporary actions to quickly process applications and
claims.
---------------------------------------------------------------------------
In addition, in the Intergovernmental Personnel Act (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. 42 U.S.C. 4701.
Requiring States to employ the professionals who deliver ES services in
accordance with these principals 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. Id. 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. Id. By contrast, contract staff
and subrecipient staff are employed by and accountable to non-State
entities, and their individual adherence to State-issued policies and
procedures is not directly observable. And, as noted previously, it is
important that the States use State merit staff to deliver ES services
because of the critical alignment between the ES and UI programs.
In proposing 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 IPA, 42 U.S.C.
4728, as amended. Each of these provisions, standing alone, provides
the Department with the discretion 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.'' As the court in Michigan
v. Herman, 81 F. Supp. 2d 840 (W.D. Mich. 1998), concluded, ``the
language in [sec. 3(a)] authorizing the Secretary to develop and
prescribe `minimum standards of efficiency' is broad enough to permit
the Secretary . . . to require merit staffing.'' Id. 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 unemployment insurance claimant services.'' As explained previously,
the proposed merit-staffing requirement would align the staffing of ES
services with the staffing that States are required to use in the
administration of UI programs. This would allow cross-trained ES staff
to assist States in processing and adjudicating UI claims, and
assisting claimants with work search and reemployment services,
particularly in times of high need, such as during the pandemic. It
would, therefore, be 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.
Additionally, 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).\8\ In
accordance with 5 CFR 900.605, the Department has submitted this
proposed rule to OPM for review and has received prior approval.
---------------------------------------------------------------------------
\8\ 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).
---------------------------------------------------------------------------
The Department acknowledges that this proposal constitutes a change
in its existing position and would require 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). As
explained previously, the Department is proposing this change to ensure
that more workers will be available in the States if needed to back up
the UI system. In the section-by-section discussion that follows, the
Department further explains why it is proposing to require that States
use State merit-staff employees to provide ES services, acknowledges
the reliance interests of States that would need time to come into
compliance with this requirement, and addresses those interests by
proposing an 18-month transition period.
B. Strengthening the Provision of Services to Migrant and Seasonal
Farmworkers
In addition to a merit-staffing requirement, the Department is
proposing targeted revisions to the regulations at parts 651, 653, and
658. The proposed revisions are intended to ensure that SWAs provide
adequate outreach services to MSFWs and that SMAs, Regional Monitor
Advocates (RMAs) and the National Monitor Advocate (NMA) have the
authority, tools, and resources that they need to monitor SWA
compliance with the ES regulations. As described in detail in the
section-by-section discussion that follows, the proposed revisions
would strengthen the Monitor Advocate System established in the wake of
NAACP, Western Region et al. v. Brennan, 360 F.Supp. 1006 (D.D.C.
1973), and ensure that SWAs offer and provide ES services to MSFWs in a
manner that is qualitatively equivalent and quantitatively
proportionate to the ES services that they offer and provide to other
job seekers. Additional proposed revisions include technical edits to
improve clarity, such as adding commas or cross-references.
[[Page 23703]]
III. Section-by-Section Discussion of Proposed Rule
A. Technical Amendments and Global Edits
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 proposes 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 proposed 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 for
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 proposing 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 is
proposing 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 proposes using their job title
instead of a pronoun. These edits largely affect regulations impacting
the NMA or the 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 at Sec. Sec.
658.602 and 658.603.
Second, where ``he/she'' refers to an employer that is not an
individual person, the Department proposes using the pronoun ``it.''
Where the possessive pronouns ``his/her'' were used, the Department
proposes using ``its.'' This is appropriate because employers are
entities, not individuals, and the proper pronoun is ``it.'' This edit
is made at Sec. Sec. 658.502 and 658.504.
In all other cases where ``he/she'' was used, the Department
proposes using 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 proposes using ``their.'' These changes are
designed to remove binary gender language so that the full regulatory
text is gender inclusive. The Department makes these changes in Sec.
651.10 in the definition of seasonal farmworker. Edits are also made 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 proposes to replace 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 proposes conforming
technical amendments to correct grammar in the regulations, as needed,
because of these changes. In addition to such conforming technical
amendments, the Department proposes adding and removing 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.
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. The Department proposes to revise the following
definitions to better align them across the regulatory text, as well as
practice in the field, and to make them conform with other revisions
the Department proposes to make in this NPRM, including changes to
staffing requirements.
The Department proposes to revise the first sentence of Sec.
651.10 by providing the full title of the statute for the existing WIOA
reference and identifying where WIOA is codified. These additions will
help ensure the definitions in this section apply to WIOA, as published
at 29 U.S.C. 3101 et seq.
The Department proposes 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. The
Department has observed that SWAs have used inconsistent descriptions
of the term in their policies and procedures, which are not always
consistent with Sec. 658.419. The proposed definition is derived from
existing regulatory language at Sec. 658.419, which describes that an
apparent violation is a suspected violation of employment-related laws
or ES regulations.
The Department proposes to amend the definition of applicant
holding office to replace ``a Wagner-Peyser Employment Service Office''
with ``an ES office.'' The definition of Wagner-Peyser Act Employment
Service (ES) also known as Employment Service (ES) explains that ES
offices refers to ES offices described under the Wagner-Peyser Act.
Additionally, the definition of ES office explains that ES offices
provide ES services as a one-stop partner program. Therefore, the
reference to ``a Wagner-Peyser Employment Service office'' is redundant
and unnecessary.
The Department proposes 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 proposes 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 proposes 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 proposes to remove the words ``individual at the
local or State level'' due to proposed changes to the definition of ES
staff.
[[Page 23704]]
The Department proposes 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 proposes to amend the definition of Employment
Service (ES) office to replace ``Wagner-Peyser Act'' with ``ES.'' This
change would align the definition with proposed changes to the
definition of Wagner-Peyser Employment Service (ES) also known as the
Employment Service (ES) and make the reference to ES consistent across
all parts of the ES regulations.
The Department proposes 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.'' This change would align the definition with other
proposed changes to the regulatory text and definitions, which refer to
``ES services,'' instead of ``ES activities.'' The Department also
proposes to replace ``individual'' with ``ES staff person'' to clarify
that the ES Office Manager must be ES staff, as defined in this
section.
The Department proposes to amend the definition of Employment
Service (ES) staff in two ways. First, the Department proposes to
replace 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. Second, the
Department proposes to delete the phrase ``to carry out activities
authorized under the Wagner-Peyser Act,'' because this language is
unnecessary. The ES regulations in parts 652, 653, and 658 describe the
activities and services that ES staff are authorized or required to
carry out. The proposed changes are intended to define a term that,
when referenced, will clearly identify services or tasks that must be
performed by State merit staff, and to simplify terminology throughout
all parts. The revised definition also makes clear that ES staff
includes a SWA official.
The Department proposes to amend the definition of field checks in
several ways. First, the Department proposes 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 proposes to clarify in the definition
that field checks may also be conducted by non-ES State staff, in
addition to ES or Federal staff, if the SWA has entered into an
arrangement with a State enforcement agency (or agencies) to conduct
field checks. This proposed revision aligns the definition with
existing practice permitted by the regulation at Sec. 653.503, 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 ES personnel.
Additionally, the Department proposes to remove from the definition
that field checks are ``random'' appearances. The proposed revision
would clarify that the selection of the clearance orders on which the
SWA will conduct field checks does not need to be random, though random
field checks may still occur. The revision clarifies that field checks
may be targeted, where necessary, to respond to known or suspected
compliance issues, thereby improving MSFW worker protection. In
addition, if a SWA makes placements on 9 or fewer clearance orders, the
SWA must conduct field checks on 100 percent of those clearance orders.
See Sec. 653.503(b). Therefore, in those cases, field checks could not
be conducted on a random basis. These proposed revisions would clarify
the definition and make it consistent with Sec. 653.503(b).
The Department proposes to amend the definition of field visits in
several respects. First, the Department proposes to clarify that field
visits are announced appearances by SMAs, RMAs, the NMA, or NMA team
members. This term is currently defined to include appearances by
Monitor Advocates or outreach staff, and the proposed revision would
clarify which Monitor Advocates may conduct field visits and that the
appearances are announced, and not unannounced, as with field checks.
Second, the Department proposes to 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 proposes to amend the definition to specify that field
visits include discussions on farmworker rights and protections. The
Department has observed through monitoring that outreach staff and SMAs
do not always discuss farmworker rights and protections during field
visits as part of broader discussions about ``other employment-related
programs,'' and instead only cover information on ES services. An
explicit reference to discussions on farmworker rights and protections
in the definition will help ensure that these issues are consistently
addressed.
The Department proposes 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 proposes to amend the definitions 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 in this part.
The Department also proposes to amend the definition of intrastate
clearance order in two ways. First, the Department proposes to amend
the definition to indicate that it is an agricultural ``clearance''
order for temporary employment instead of a ``job'' order. This change
aligns the definition with the definitions of job order and clearance
order in this part. Second, the proposed revision clarifies that the
term means an agricultural clearance order for temporary employment
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. The current definition does not include the word ``all.''
Therefore, it was not clear that such a request must go to all other
offices in the State, and some ES offices were not distributing the
clearance order to all offices. This clarification will help SWAs
understand that an intrastate clearance order must be circulated to all
ES offices within the State.
The Department proposes to amend the definition of migrant
farmworker by removing the exclusion of full-time students who are
traveling in organized groups. The Department proposes considering
anyone who meets the definition of migrant farmworker to be considered
as such, including full-time students performing farmwork. This change
will make the benefits and protections of the Monitor Advocate System,
including safeguards built into the Complaint System, ES service
requirements, and equity and minimum service levels, available to full-
time students traveling in organized groups. The exclusion of full-time
students from existing regulatory text was premised on the fact that
full-time students did not need to meet minimum farmwork or income
requirements, which no longer exist in the ES regulations. Therefore,
[[Page 23705]]
the reference is no longer relevant to the migrant farmworker
definition.
The Department proposes 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 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 proposes 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 proposes 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 proposes to amend the definition of outreach staff
to clarify that SMAs are not considered outreach staff. The SMA's role
includes monitoring and providing guidance related to outreach staff
but does not include acting as outreach staff. Outreach staff are a
separate set of staff described in Sec. 653.107(b). As noted in Sec.
653.108, no State may dedicate less than full-time staffing for the SMA
position, unless the Regional Administrator (RA), with input from the
RMA, provides written approval. The SMA must also be able to review
outreach efforts as required in Sec. 653.108(o) and have adequate time
to complete the extensive duties described in Sec. 653.108. While an
SMA may join ongoing outreach efforts, Sec. 653.107 requires SWAs to
employ an adequate number of outreach staff.
The Department proposes 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 it is therefore unnecessary to
distinguish ``State agency officials'' in addition to the State agency.
The Department is proposing to remove the exclusion of non-migrant
full-time students from the definition of seasonal farmworker. This
change would allow full-time students who work in seasonal farmwork to
be considered seasonal farmworkers and would make the definition of
seasonal farmworker consistent with the definition of migrant
farmworker.
The Department proposes to revise the definition for significant
MSFW one-stop centers in several ways. First, by removing the
requirement that the designation be made annually, the Department can
better rely on multiple data sources that are published in intervals up
to every 5 years, including the Census of Agriculture and the Quarterly
Census of Employment and Wages. This will help ensure the designation
more accurately aligns with supporting data on the number of MSFWs in
the service area. Based on the Department's analysis of census and
other SWA data, the data do not change significantly on an annual basis
and, therefore, it is often unnecessary to change the designations. If
annual adjustments are warranted by the data, the Department will make
adjustments in annual designations. 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 also proposes to add
that significant MSFW one-stop centers will also include ES offices
where MSFWs account for 10 percent or more of reportable individuals in
the ES annually, not just 10 percent or more of participants. This
corresponds to the proposed change in Sec. Sec. 653.103(a) and
653.109(b)(10), which would require ES offices to determine and collect
data on the number of reportable individuals who are MSFWs. This
proposal is intended to more closely correlate the designation of
significant MSFW one-stop centers to the total number of MSFWs--and,
therefore, potential participants--in the area, as opposed to just the
number of existing participants in the area. Relying solely on the
number of existing MSFW participants in the area fails to account for
all other MSFWs in the area who could potentially become participants
and does not account for situations where the number of participants in
the area is low due to failure to perform adequate outreach or to make
services available to MSFWs so that MSFWs who are reportable
individuals may receive participant level services. In those cases, the
number of participants is not an accurate indicator of the need for
MSFW-specific ES services in the area. These proposed changes provide a
more accurate representation of the number of MSFWs in the area who
could benefit from access to ES services. The Department also is
proposing to retain language permitting the Department to consider
special circumstances beyond the estimated number of MSFWs in the area
in designating significant MSFW one-stop centers.
The Department proposes to amend the definition of significant MSFW
States. Similar to the proposed changes to the definition of
significant MSFW one-stop centers, the Department proposes to remove
the annual designation requirement from the definition of significant
MSFW States. The Department proposes to rely on information from the
Census of Agriculture, which is published every 5 years, and the
Quarterly Census of Employment and Wages, which publishes a quarterly
count of employment and wages. These data sources provide the most
reliable farmworker estimates available. Additionally, the Department
proposes to add ``estimated'' before ``number of MSFW'' and remove the
word ``participants'' because the Department intends to use the
estimated number of MSFWs in each State, instead of exclusively the
number of MSFW participants in the State to more accurately determine
which States have the most MSFW activity and should therefore be
designated as significant MSFW States. Relying on the estimated number
of MSFWs in a State means the Department will account for those MSFWs
who may eventually become participants instead of only focusing on
States with the highest existing number of participants.
The Department proposes to delete the definition of significant
multilingual MSFW one-stop centers in its entirety because the
Department is proposing changes to Sec. 653.102 to remove specific
requirements for offices that would meet the definition. The Department
proposes to remove these specific requirements for significant
multilingual MSFW one-stop centers because all one-stop centers must
comply with the language access requirements in 29 CFR 38.9, which
prohibit discrimination on the basis of national origin, including
limited English proficiency (LEP). The Department created the
significant multilingual MSFW one-stop center definition and language
access requirements at Sec. 653.102 before comprehensive language
access requirements implementing section 188 of WIOA were codified in
29 CFR part 38. The regulations at 29 CFR 38.9 establish that language
access requirements apply to services provided to all LEP individuals
at all one-stop centers and are broader than the existing requirements
for significant multilingual MSFW one-stop centers. For these reasons,
the designation of significant multilingual MSFW one-stop centers is no
longer necessary. Additionally,
[[Page 23706]]
having separate requirements for significant multilingual MSFW one-stop
centers may inaccurately create the appearance that there are two sets
of language access standards, or that requirements for significant
multilingual MSFW one-stop centers are narrower. Removing the
significant multilingual MSFW one-stop center definition therefore
clarifies that the comprehensive language access requirements at 29 CFR
38.9 apply to all one-stop centers.
The Department proposes 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.
The Department is proposing to amend the definition of Wagner-
Peyser Act Employment Service (ES) also known as Employment Service
(ES) to replace the phrase ``employment services'' with ``ES
services.'' This change would simplify the use of terminology
throughout all parts. The Department also proposes to remove the words
``and are'' from the definition for greater clarity.
C. Part 652--Establishment and Functioning of State Employment Service
Subpart C--Employment Service Services in a One-Stop Delivery System
Environment
1. Subpart A--Employment Service Operations
This subpart 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 Department's proposed amendments to subpart A focus
solely on administrative provisions governing nondiscrimination
requirements.
Section 652.8 Administrative Provisions
Section 652.8 covers administrative matters, including: Financial
and program management information systems; recordkeeping and retention
of records; required reports; monitoring and audits; costs; disclosure
of information; sanctions; and nondiscrimination requirements.
The Department proposes to correct the statutory reference in Sec.
652.8(j)(2) regarding the bona fide occupational qualification (BFOQ)
exception currently listed in the regulation as 42 U.S.C. 2000(e)-2(e)
to 42 U.S.C. 2000e-2(e).
The Department proposes 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.\9\ 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). Consistent with this proposed
amendment, the Department also proposes to remove the phrase ``and
affirmative action'' from the paragraph heading for Sec. 652.8(j). 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 limited English proficiency, individuals
with disabilities, and individuals in different age groups.
---------------------------------------------------------------------------
\9\ 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).
---------------------------------------------------------------------------
2. Subpart C--Employment Service Services in a One-Stop Delivery System
Environment
This subpart 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; universal
service access requirements; provision of services for UI claimants;
and State planning. Among other changes, the NPRM's proposed changes to
regulations under subpart C are tailored to require all States to use
State merit staff to provide ES services, reinstating a longstanding
requirement that existed prior to the 2020 Final Rule, and extending
the requirement to those States using different staffing arrangements
under the rule as it existed prior to the 2020 Final Rule. As was true
when the regulations were changed in 2020, none of the changes proposed
at this time will impact the personnel requirements of the Vocational
Rehabilitation (VR) program, one of the six core programs in the
workforce development system that is authorized under title I of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended by title IV
of WIOA. The Rehabilitation Act 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 Governor's Reserve flow
through the one-stop delivery system?
This section explains that the Governor's Reserve funds may, but
are not required to, flow through the one-stop delivery system and
provides a list of allowable uses for those funds. The Department
proposes 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 proposes to amend this section to
reference professional development and career advancement of ES staff
instead of SWA officials. Under the proposed revisions to the
definitions found in part 651, ES staff would exclusively refer to
State merit staff. This NPRM proposes to remove the term SWA official
as a defined term in Sec. 651.10, as the term is made redundant under
the proposed changes.
Section 652.215 Can Wagner-Peyser Act-funded activities be provided
through a variety of staffing models?
This section currently provides States the option to provide ES
services through a variety of staffing models. For the reasons set
forth in this NPRM, the Department proposes to amend Sec. 652.215 to
require all States, including the historically exempted ``demonstration
States,'' to provide labor exchange services described in Sec. 652.3
of this part through State merit staff. The staffing requirement
applies to ES services provided to MSFWs. Specifically, the proposed
regulatory text states that labor exchange services must be provided by
ES staff. Under proposed revisions to the definitions (Sec. 651.10),
ES staff will exclusively refer to State merit staff.
Historically, the Department relied on authority under sec. 3(a) of
the Wagner-Peyser Act, which requires the
[[Page 23707]]
Department to assist in coordinating State ES offices and improve their
usefulness by setting minimum standards of efficiency and promoting
their uniform administration, as well as authority in sec. 5(b) of the
Wagner-Peyser Act, to promulgate regulations prescribing the use of
State merit staff. Prior to 2020, in support of its longstanding State
merit staff requirement for ES services, the Department explained that
the benefits of merit-staffing in promoting greater consistency,
efficiency, accountability, and transparency are well established.\10\
The Department's discretion to require the use of State merit staff to
provide ES services was affirmed in Michigan v. Herman, 81 F. Supp. 2d
840 (W.D. Mich. 1998). As explained earlier in this preamble, in the
1990s, the Department approved limited exemptions from the merit-
staffing requirement for three States (Colorado, Massachusetts, and
Michigan) during the establishment of the one-stop delivery system to
test alternative service-delivery models, but subsequently noted that
no additional exemptions would be authorized.
---------------------------------------------------------------------------
\10\ See 64 FR 18662, 18691 (April 15, 1999) (Workforce
Investment Act (WIA) Interim Final Rule); 65 FR 49294, 49385 (Aug.
11, 2000) (WIA Final Rule); 80 FR 20690, 20805 (April 16, 2015)
(WIOA NPRM); 81 FR 56072, 56267 (Aug. 19, 2016) (WIOA Final Rule).
---------------------------------------------------------------------------
In the 2020 Final Rule, the Department changed its longstanding
policy and determined that granting States flexibility in staffing
potentially would give States flexibility to meet the unique needs of
ES customers, free up resources to serve employers and job seekers, and
better integrate ES services with other WIOA programs. The Department
also stated that similar programs operated successfully with flexible
staffing arrangements and, therefore, staffing flexibility should be
provided under the Wagner-Peyser Act. However, the recent stress placed
upon State UI systems in response to the COVID-19 pandemic served to
highlight the necessity of States to be able to rely on State merit
staff who are already cross-trained or able to be quickly cross-trained
and legally permitted to assist UI claimants during times of high
demand placed on State UI systems. As discussed above, the Department
has reassessed the factors it weighed in the 2020 Final Rule and has
determined that the alignment of ES and UI staffing is more important
than the efficiencies that flexibility may promote, and that it is
vital that the ES be administered so that quality services are
delivered effectively and equitably to UI beneficiaries and other ES
customers. Accordingly, the Department is now proposing to require,
with no exceptions, that States use State merit-staff employees to
provide ES services. This proposed rule ensures States are universally
equipped to use cross-trained ES staff to assist in processing and
adjudicating UI claims, and assisting claimants with work search and
reemployment services. As described previously, the Department relies
on authority under secs. 3(a) and 5(b) of the Wagner-Peyser Act, as
well as sec. 208 of the IPA, to exercise discretion to require the use
of State merit staff to deliver ES services.
To improve clarity, the Department proposes revising the section
heading from ``Can Wagner-Peyser Act funded activities be provided
through a variety of staffing models?'' to ``What staffing model must
be used to deliver services in the Employment Service?'' In addition,
the Department proposes revising the regulatory text by adding a new
paragraph (a), which specifies that the Secretary requires that the
labor exchange services described in Sec. 652.3 be provided by ES
staff. This revision is proposed to reinstate the State merit-staffing
requirement and align with the proposed definitions of ES and ES staff
in Sec. 651.10.
The Department further proposes to add a new paragraph (b), which
provides that the staffing requirement in this section would have the
same effective date as other proposed changes in this NPRM and would
become effective 60 days after publication of the final rule in the
Federal Register. The Department also proposes to add a new paragraph
(c), which specifies a compliance date for proposed Sec. 652.215
(i.e., the date on which the requirements of this section would become
enforceable) of 18 months after the effective date of the final rule.
The Department acknowledges that for States currently using different
staffing models for the provision of ES services, both those that have
been using different models for many years and those that changed or
have begun to change their staffing models due to the 2020 Final Rule,
the use of State merit staff may take time to implement.
In the short period of time that staffing flexibility has been
available to all States, the Department is aware that a few States
expressed an interest in using that flexibility. Some States may have
taken steps to use the staffing flexibility without modifying their
approved State plans, under which they indicate that they are using
State merit staff to deliver ES services. At least one State has
submitted a State plan modification indicating that the State intends
to use non-State merit staff to provide ES services. Reinstating the
State merit-staffing requirement will impact these States, but the
Department thinks that the impact will be minimal, as described in the
regulatory impact analysis section of this proposal (sec. III.A of the
preamble).
The Department recognizes that this proposed change will have the
most impact on the three demonstration States, Colorado, Massachusetts,
and Michigan. Since the 1990s, these three States have relied on an
exemption in their approved State plans to use some limited form of
non-State-merit staffing. Any burden imposed on these three States by
the proposal to require their use of only State merit staff may be
mitigated by the States' currently approved staffing models. Colorado
and Michigan both use only merit-staffing to deliver ES services, but
they employ merit staff at both the State and local level to deliver
services. For these States, the proposed regulation would require that
they discontinue their use of local merit staff and use only State
merit staff. Massachusetts uses some non-merit staff, but that use of
non-merit staff is only approved in 4 out of 16 local areas in the
State. In the remaining local areas, Massachusetts uses State merit
staff to deliver ES services. Accordingly, while disruption in service
delivery may occur due to this change, the Department anticipates that
disruption to these States' ES service delivery will be minimal. As
noted in the regulatory impact analysis, prior to publication of this
NPRM, the Department surveyed the demonstration States on any
transition costs that may be incurred by the proposed State merit-
staffing requirement. While the Department acknowledges that there may
be some cost to these three States due to this change, the Department
believes that the rationale for requiring the use of State merit staff
applies equally to the demonstration States, and that the long-term
benefits of having cross-trained ES staff outweigh the cost to these
States of transitioning to the use of State merit staff. The Department
seeks comment on the benefits and costs of transitioning to a State
merit-staffing requirement in instances where States are using staff
other than State merit staff to deliver services. In addition, the
Department seeks comment on any positive or negative impact this change
would have in terms of the quality of services provided within the
American Job Centers--including those funded by WIOA.
However, acknowledging that these three States, and any State that
had taken action under the 2020 Final Rule, will be unable to
immediately comply
[[Page 23708]]
with this proposed requirement, the Department proposes to provide 18
months for States to implement the State merit-staffing requirement in
order to provide States with adequate time to consider and implement
any necessary changes to come into compliance, including time to
resolve outstanding contractual obligations and align changes with the
timed financial allotments. The Department is open to adjusting this
time period and, accordingly, it seeks comments from States regarding
whether 18 months is sufficient time to comply with this requirement.
The Department also seeks comments from States describing other
regulatory changes States believe are necessary to effectuate
compliance with the proposed changes.
D. Part 653--Services of the Wagner-Peyser Act Employment Service
System
Part 653 sets forth the principal regulations of the 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 fashion. The regulations in this part
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. As noted elsewhere in this preamble, the proposed State merit-
staffing requirement discussed in part 652 would also apply to delivery
of all ES services to MSFWs, including outreach services and the
Monitor Advocate System discussed in the following section. References
to staffing throughout this part of the proposed rule, even where the
Department has not proposed changes, refer to State merit staff.
1. Subpart B--Services for Migrant and Seasonal Farmworkers (MSFWs)
Section 653.100 Purpose and Scope of Subpart
The Department proposes to amend Sec. 653.100(a) to clarify that
the provision of services for MSFWs must be available in 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 sec.
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 Wagner-Peyser Act Employment Service is a required one-stop
partner, and the requirements of section 188 of WIOA apply to all one-
stop partners. 29 CFR 38.4(zz).
Section 653.101 Provision of Services to Migrant and Seasonal
Farmworkers
The Department proposes 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. This clarification is proposed because it is
ultimately incumbent upon the SWA to ensure ES staff at one-stop
centers are carrying out the appropriate duties with their Wagner-
Peyser Act funds. The Department also proposes to replace the
requirement 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 the one-stop centers
tailor 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. This proposed change strengthens the requirement to tailor services
to the individualized needs of MSFWs. The change also would make the
requirement applicable to the SWA to ensure the one-stop centers
comply, to align with the SWA's position as the direct recipient of ES
funds.
Section 653.102 Job Information
The Department proposes to revise the second sentence of Sec.
653.102 to clarify that the SWA is the entity responsible for assisting
MSFWs to access job order information, for the same rationale as
described in the same proposed change for Sec. 653.101. The
Department's proposed language also clarifies that the requirement
applies to ES staff at one-stop centers because the scope of part 653
relates to the ES services program, not all one-stop partner programs.
The Department also proposes to remove the word ``adequate'' as a
modifier to the phrase ``assistance to MSFWs.'' The Department has
observed that States' interpretation of what it means to provide
adequate assistance varies. Removing the word ``adequate'' will remove
subjectivity and clarify that a SWA meets its obligation to assist
MSFWs by complying with the requirements in parts 653 and 658.
The Department also proposes to remove the final sentence of Sec.
653.102, which stated that in designated significant MSFW multilingual
offices, assistance with accessing job order information must be
provided to MSFWs in their native language whenever requested or
necessary. The Department proposes to remove this sentence to align
language access requirements in the ES regulations with those required
by WIOA sec. 188 and its implementing regulations at 29 CFR part 38.
Language access requirements are not limited to designated multilingual
MSFW one-stop centers, but rather, they apply to LEP individuals
regardless of through which office they seek ES services. The existing
requirement was written into the regulations in the early 1980s, well
before the language access requirements were codified at 29 CFR part
38. Removing the existing requirement, which specifically applies to
designated multilingual MSFW one-stop centers, and adding a reference
to the broader language access requirements at Sec. 653.103(b)
(described in the following section) is intended to strengthen language
access for all LEP individuals. This change also aligns with the
proposal to remove the definition for multilingual MSFW one-stop
centers from Sec. 651.10. Accordingly, the Department proposes to add
a broader language access requirement to Sec. 653.103, as described in
the following section.
Section 653.103 Process for Migrant and Seasonal Farmworkers To
Participate in Workforce Development
The Department proposes to make several revisions to Sec. 653.103.
In paragraph (a), the Department proposes to change ``one-stop center''
to ``ES office.'' This change clarifies that the requirement applies to
ES staff because part 653 applies to the ES services program, not all
one-stop partner programs. In addition to the existing requirement to
determine whether participants, as defined at Sec. 651.10, are MSFWs,
the Department proposes to require that ES offices must determine
whether reportable individuals, also defined at that section, are
MSFWs. This proposed change will help ES staff identify all individuals
who engage in ES services who are MSFWs, and not limit that assessment
to participants only. With this information, SWAs will be able to
better understand the number of MSFWs who engage in the ES and the
degree of their engagement. This information is important for SWAs and
SMAs to have so that they may
[[Page 23709]]
understand the full scope of who accesses particular services for the
purposes of determining whether services are being provided to MSFWs on
an equitable basis. For example, by having the number of MSFW
reportable individuals, the SWAs and SMA can analyze situations where
there may be large numbers of MSFW reportable individuals but very few
or no MSFW participants, in proportions far different than other
populations. Such scenarios may indicate that ES services are not being
provided to MSFWs in a way that is tailored to individual MSFW
preferences, needs, skills, and the availability of job and training
opportunities, so that MSFWs are reasonably able to participate in the
ES, as required by the proposed Sec. 653.101.
In Sec. 653.103(b), the Department proposes 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 requiring all SWAs to comply with the language access and
assistance requirements at 29 CFR 38.9 with regard to all LEP
individuals, 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. This proposed change
aligns the language access requirements for MSFWs with those
requirements identified for all LEP individuals pursuant to 29 CFR 38.9
and helps ensure LEP individuals have meaningful access to the ES.
Due to this proposed change, the Department proposes corresponding
edits throughout the ES regulations to ensure that all language access
requirements align with 29 CFR 38.9. This is important for several
reasons. First, 29 CFR 38.9 is part of WIOA sec. 188's prohibition on
discrimination on the basis of national origin, including limited
English proficiency. Maintaining separate language access requirements
could create confusion about which standard should apply. Second, the
proposed change reduces duplication because the standards at 29 CFR
38.9 already cover the language access requirements provided in the ES
regulations. Third, aligning the ES regulations with 29 CFR 38.9
ensures broader language access protections for LEP farmworkers than
those in the existing ES regulations.
Lastly, in Sec. 653.103(c), the Department proposes to remove the
requirement that one-stop centers must provide MSFWs a list of
available career and supportive services ``in their native language.''
This proposed change would make the provision consistent with the
broader proposed revisions to language access requirements throughout
all parts to ensure they align with 29 CFR 38.9.
Section 653.107 Outreach Responsibilities and Agricultural Outreach
Plan
The Department proposes to revise the section heading in Sec.
653.107 to read ``Outreach responsibilities and Agricultural Outreach
Plan'' to provide greater clarity.
The Department proposes to revise Sec. 653.107(a)(1) in several
ways. First, the Department proposes to move to Sec. 653.107(a)(4) the
sentence that explains each SWA must provide an adequate number of
outreach staff to conduct MSFW outreach in their service areas. The
regulation at paragraph (a)(4) details how many outreach staff a SWA
must provide and explains what it means to provide an adequate number
of outreach staff. Therefore, the previously quoted language from Sec.
653.107(a)(1) more logically fits in Sec. 653.107(a)(4), where it
provides clarity regarding what adequate means. The result of this
change is that the first sentence of this section now requires that the
SWA ensure that outreach staff fulfill the outreach responsibilities
described in paragraph (b) of this section on an ongoing basis. The
Department proposes to add that outreach staff must conduct outreach on
an ongoing basis to clarify that outreach activities in all States must
occur year-round. As described at 20 CFR 653.107(a)(4), in significant
MSFW States, there must be full-time, year-round outreach staff and in
the remainder of the States there must be year-round part-time outreach
staff. This change is proposed to clarify that all States must have
some degree of outreach at all times.
Second, the Department proposes to revise the sentence that
provides SWA Administrators must ensure SMAs and outreach staff
coordinate their outreach efforts with WIOA title I sec. 167 grantees
by replacing ``their outreach efforts'' with the word ``activities.''
This change is proposed to correct frequent misunderstandings by SWAs,
where SWAs believe coordinating their outreach efforts means that other
organizations such as National Farmworker Jobs Program (NFJP) grantees
may conduct outreach on behalf of the SWA and that the NFJP grantees'
outreach is sufficient to satisfy the SWA's outreach obligations. Using
the word ``activities'' helps clarify that SWAs must coordinate their
activities with NFJP grantees (i.e., work together to strengthen their
respective services) but that NFJP grantee outreach is not a substitute
for SWA outreach obligations. To further clarify this point, the
Department proposes to add to Sec. 653.107(a)(1) a sentence explaining
that WIOA title I sec. 167 grantees' activities involving MSFWs does
not substitute for SWA outreach responsibilities. This clarification is
important because NFJP staff are not obligated to provide the same
information or services to MSFWs as SWA outreach staff must provide,
nor are they monitored by the SMA to ensure services are compliant with
ES regulations.
At Sec. 653.107(a)(2)(i), the Department proposes a technical edit
to change the period after ``MSFWs'' to a semicolon and adding the word
``and'' to clarify that as part of their outreach, SWAs must ensure
outreach staff satisfy both paragraphs (i) and (ii), which follow.
In Sec. 653.107(a)(2)(ii), the Department proposes to revise the
requirement that SWAs must ensure outreach staff conduct thorough
outreach efforts with extensive follow-up activities in supply States
by replacing ``in supply States'' with ``identified at Sec.
653.107(b)(5).'' This change is proposed because SWAs must ensure
outreach staff are conducting thorough outreach efforts with extensive
follow-up activities in all States--not only in supply States. This
proposed revision does not increase the outreach burden on non-supply
States because all States must already comply with all applicable
outreach provisions identified at Sec. 653.107.
The Department proposes several revisions to Sec. 653.107(a)(3).
First, the Department proposes to revise the language and structure of
the paragraph. The Department proposes to replace ``For purposes of
providing and assigning outreach staff to conduct outreach duties, and
to facilitate the delivery of employment services tailored to the
special needs of MSFWs. . .'' with ``When hiring or assigning outreach
staff.'' This change would operationalize the proposed State merit-
staffing requirement for outreach workers. The existing regulatory text
permits SWAs the flexibility to provide outreach staff in several ways,
including by subcontracting staff. With this proposed change, the
Department is making clear that the SWA is responsible for directly
hiring outreach staff who must be State merit staff because the
definition of outreach staff refers to ES staff, who must be State
merit staff.
[[Page 23710]]
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, are from MSFW backgrounds, or have substantial
work experience in farmworker activities. The proposed revision is also
intended to clarify that SWAs must seek to hire for or assign to
outreach staff positions, and put a strong emphasis on hiring or
assigning, individuals who speak the language of a significant
proportion of the State MSFW population and who either are from MSFW
backgrounds or have substantial work experience in farmworker
activities. Several revisions impact how a State staffs outreach
responsibilities. Changes at 653.107(a) require outreach to be ongoing,
changes at 653.107(a)(3) strengthen hiring requirements, and changes at
653.107(a)(4) clarify that full-time outreach work means devoting 100%
of their time to outreach. Together, States will be unlikely to be able
to fulfill these responsibilities unless they hire staff specifically
for outreach. While States can assign outreach responsibilities to
existing qualified staff, such staff in significant MSFW States must
then devote 100% of their time to outreach, not merely add outreach to
other responsibilities. For non-significant MSFW States, outreach staff
must devote full time in peak season and part time in non-peak season
to outreach.
The Department proposes to maintain the language in Sec.
653.107(a)(3)(i) that SWAs must seek qualified candidates who speak the
language of a significant proportion of the State MSFW population. But
to strengthen the existing requirement, the Department proposes to add
that the SWA must not only seek but also put a strong emphasis on
hiring qualified candidates. This language is proposed to increase the
likelihood that SWAs will hire candidates with the criteria described
in Sec. 653.107(a)(3)(i), instead of simply seeking candidates whom
they never hire. To further increase the likelihood that SWAs hire
candidates who meet the required criteria, the Department proposes to
add a new paragraph at Sec. 653.107(a)(3)(ii) requiring the SWA to
inform farmworker organizations and other organizations with expertise
concerning MSFWs of outreach staff job openings and encourage them to
refer qualified applicants to apply. These additions are proposed to
expand the applicant pool for outreach staff positions to include
individuals who have the knowledge, skills, and abilities to meet the
unique needs of farmworkers. The proposed paragraph also makes
requirements for hiring outreach staff consistent with the requirements
for appointing an SMA under Sec. 653.108(b). For the SMA position, the
SWA is required to inform farmworker organizations and other
organizations with expertise concerning MSFWs of the opening and
encourage them to refer qualified applicants to apply. As discussed in
this section, this requirement helps SWAs expand the applicant pool for
SMAs to help the SWA choose from a larger selection of qualified
applicants, and the same reasoning applies to outreach staff.
The Department proposes to amend Sec. 653.107(a)(4) by adding the
sentence that the Department proposes to remove from Sec.
653.107(a)(1), which provides that each SWA must provide an adequate
number of outreach staff to conduct MSFW outreach in their service
areas. However, the Department proposes to replace ``in their service
areas'' with ``in each area of the State.'' This change will clarify
that SWAs must provide outreach in all areas of the State where there
are farmworkers, not only in certain service areas. This change would
make the expectation to cover the full State clear. The Department also
proposes to replace ``provide'' with ``employ'' and add to the end of
the sentence language making clear that an adequate number of outreach
staff are needed to contact a majority of MSFWs in all of the SWA's
service areas annually. These additions are proposed to clarify what it
means to employ an ``adequate number of outreach staff,'' all of whom
must be State merit staff. Making this determination on an annual basis
helps align the assessment of staffing levels with the reporting
required in the SMA's Annual Summary.
The Department further proposes to revise the sentence requiring
that in the 20 States with the highest estimated year-round MSFW
activity, as identified in guidance issued by the Secretary, there must
be full-time, year-round outreach staff to conduct outreach duties.
Specifically, the Department proposes to replace ``in guidance issued
by the Secretary'' with ``as identified by the Department.'' This
revision is necessary to conform to guidance issued by the Department.
The Department also proposes to amend Sec. 653.107(a)(4) to add a
sentence clarifying what it means to have full-time outreach staff. The
proposed sentence explains that full-time means each individual
outreach staff person must spend 100 percent of their time on the
outreach responsibilities described at Sec. 653.107(b). This
requirement is important because having each outreach staff person
engage in outreach on a full-time basis gives that person more time to
establish a positive working relationship with MSFWs and agricultural
employers in their service area. This can be helpful for building trust
and engaging in informal resolution of complaints and apparent
violations. It is also necessary so that outreach staff are fully
available to provide the level of ES and follow-up activities that
these regulations describe. The Department proposes to keep the
existing requirements that, in the 20 States with the highest estimated
year-round MSFW activity, as identified by the Department and defined
as significant MSFW States at Sec. 651.10, there must be full-time,
year-round outreach staff to conduct outreach duties. In 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. This means that States that are not significant MSFW
States may allow outreach staff to conduct other activities that
promote farmworker safety, including housing inspections, when they are
not in peak harvest season. If outreach staff in States that are not
significant MSFW States have additional time available after fulfilling
their required outreach responsibilities, those States may leverage
outreach staff members, required to be State merit staff under this
proposal, to help support other critical functions, such as UI.
Finally, the Department proposes to further clarify outreach
staffing requirements by adding a new sentence in Sec. 653.107(a)(4)
stating that 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 Sec. 653.107(d). This
language will help SWAs understand that the number of full-time or
part-time outreach staff must be determined by information provided in
the State's AOP. These revisions will give the State a clear method to
identify what staffing levels are appropriate.
The Department also proposes to revise Sec. 653.107(b) by adding
that outreach staff responsibilities include the activities identified
in Sec. 653.107(b)(1) through (11). This addition clarifies the
specific activities included in outreach staff responsibilities. The
proposed regulatory text also replaces a colon with a period, which
helps the
[[Page 23711]]
construction of the sentence and its relationship to the following
paragraphs.
The Department proposes two revisions to Sec. 653.107(b)(1).
First, the Department proposes to replace ``Explaining'' with
``Outreach staff must explain'' to align with the updated construction
of the sentence whereby paragraph (b) is proposed to be a sentence
ending in a period and not a colon, making the following paragraphs
full sentences. Second, the Department proposes to remove the explicit
requirement for the information that outreach staff must convey to be
in a language readily understood by them, because proposed Sec.
653.103(b) would already require this information to be in languages
other than English for LEP individuals as provided under 29 CFR 38.9.
This proposed change conforms with other proposed changes to language
access requirements throughout parts 651, 652, 653, and 658 where the
Department seeks to align these requirements with those identified at
29 CFR 38.9.
The Department proposes to revise Sec. 653.107(b)(3) to replace
``outreach workers'' with ``outreach staff'' to align with the proposed
definition of outreach staff at Sec. 651.10. The Department proposes
the same revision to paragraph (b)(4) and to remove the word ``the''
before ``outreach staff'' for clarity. These changes are necessary to
align with the proposed State merit-staffing requirements for ES staff.
Because Sec. 651.10 defines outreach staff as ES staff with
responsibilities described at Sec. 653.107(b), the proposed State
merit-staffing requirement applies to outreach staff.
The Department proposes several revisions to Sec. 653.107(b)(7).
First, the Department proposes to replace the reference to outreach
staff being trained in ``local office'' procedures with ``one-stop
center'' procedures to align with the ES office definition at proposed
Sec. 651.10. Second, the Department proposes to require SWAs to
provide outreach staff with training on sexual coercion, assault, and
human trafficking, alongside the existing requirement to provide sexual
harassment training. The current regulation gives SWAs the option of
providing training on sexual coercion, assault, and human trafficking.
The proposed regulation would require training in these areas due to an
increased need to combat these issues in the field. These additional
topics are of importance to the Department, and this proposal is driven
by the increased frequency of complaints and apparent violations SWAs
have processed and information from organizations the Department has
partnered with regarding these issues. The focus remains for outreach
staff to be able to identify and refer cases to the appropriate
enforcement agencies. Third, the Department proposes to replace the
requirement for outreach staff to be trained in the procedure for
informal resolution of complaints with a requirement for them to be
trained in the Complaint System procedures (at part 658, subpart E) and
be aware of the local, State, regional, and national enforcement
agencies that would be appropriate to receive referrals. This change is
necessary so that outreach staff are trained in the full Complaint
System procedures, which include informal resolution.
The Department proposes to revise Sec. 653.107(b)(8) by changing
the record retention requirement from 2 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. The Uniform Guidance applies to all
grants funded by ETA. It is important to ensure record retention
requirements are consistent across all ETA grantee activities,
including for the Monitor Advocate System which is funded by the
Wagner-Peyser Act grant.
The Department proposes to make a technical edit to Sec.
653.107(b)(11) by replacing the reference to significant MSFW ``local
offices'' with ``significant MSFW one-stop centers'' to align with the
defined term in Sec. 651.10. The Department also proposes to add a
requirement that the outreach activities must align with and be
supported by information provided in the State's AOP pursuant to Sec.
653.107(d).
The Department proposes to replace the requirement in Sec.
653.107(d)(2)(ii) for SWAs in the AOP to provide an assessment of
available outreach resources with a requirement that SWAs explain the
materials, tools, and resources the State will use for outreach. The
proposed revision clarifies the requirement to assist SWAs to better
understand what information must be reported and that SWAs should
provide more detailed and better explanations of how the SWA intends to
use those resources.
The Department proposes to amend Sec. 653.107(d)(2)(iii) to
require SWAs to describe their activities to contact MSFWs who are not
being reached by the normal intake activities conducted by the one-stop
centers. The proposed regulation also would require the SWA to include
the number of full-time and part-time outreach staff in the State and
to demonstrate that there is sufficient outreach staff to contact a
majority of MSFWs in all the State's service areas annually. The
Department is proposing these changes to strengthen the description in
the AOP of how the SWA will contact MSFWs adequately, consistent with
the proposed revision to Sec. 653.107(a)(4) for States to employ
sufficient outreach staff to contact a majority of MSFWs in all the
State's service areas annually. It is also helpful for RMAs to
understand staffing levels to assess whether the State can meet the
SWAs outreach requirements.
The Department proposes to clarify that Sec. 653.107(d)(2)(iv)
requires the AOP to describe activities planned for providing the full
range of ES services to the agricultural community, instead of
``employment and training services.'' This change is necessary to
explain which specific services the AOP must describe, which is
specific to ES services and do not include all workforce development
system activities.
The Department proposes to replace the requirement at Sec.
653.107(d)(2)(v) that the AOP must provide an assurance that the SWA is
complying with the requirements under Sec. 653.111 if the State has
significant MSFW one-stop centers with a requirement that the AOP must
include a description of how the SWA intends to provide ES staff in
significant MSFW one-stop centers in accordance with Sec. 653.111.
This proposed change is intended to help the SMAs, RMAs, and the NMA
assess whether SWAs will have the appropriate staffing structure to
meet the unique needs of farmworkers.
The Department proposes to amend Sec. 653.107(d)(4) to clarify
that the AOP must be submitted in accordance with Sec. 653.107(d)(1)
instead of (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.
The Department proposes two revisions at Sec. 653.107(d)(5).
First, the Department proposes 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 proposes 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.
[[Page 23712]]
Section 653.108 State Workforce Agency and State Monitor Advocate
Responsibilities
Section 653.108 governs what a SWA and SMA must do to monitor a
State's provision of ES services to MSFWs. As explained subsequently,
the Department proposes several revisions to this section to strengthen
the role of the SMA and to enhance the monitoring activities that SMAs
perform.
The Department proposes to revise Sec. 653.108(a) to explicitly
prohibit the State Administrator or ES staff from retaliating against
an SMA for performing the monitoring activities that are required by
this section. Specifically, the Department proposes to add at the end
of Sec. 653.108(a) a requirement that the State Administrator and ES
staff must not retaliate against staff, including the SMA, for self-
monitoring or raising any issues or concerns regarding non-compliance
with the ES regulations. The addition of this sentence will emphasize
the Department's intolerance for retaliation against SMAs for
conducting their duties and encourage and protect internal disclosures
and discussions about noncompliance.
The Department proposes to revise Sec. 653.108(b), which
prescribes criteria that States must consider when appointing an SMA,
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). While the
current regulations already require SWAs to ``seek'' qualified
candidates who meet these criteria, the Department proposes to require
that SWAs ``put a strong emphasis on hiring'' such candidates to
increase the likelihood that SWAs hire SMAs who meet one or more of
these criteria, and not simply seek such individuals. In the
Department's view, it is important for SMAs to meet one or more of
these existing criteria, so that SMAs understand and have appropriate
skills to assess whether the SWA is providing adequate services to
MSFWs.
The Department also proposes to remove the requirement in Sec.
653.108(b) that the SMA be a SWA official because the proposed edits to
Sec. 651.10 remove SWA official as a defined term. The Department
proposes to revise Sec. 653.108(c) to require that the SMA be an ES
staff employee. As explained previously in this document, the
Department is proposing to reinstate the longstanding State merit-
staffing requirement that was in effect prior to the 2020 Final Rule.
One of the ways in which the Department proposes to effectuate this
proposal is to remove the definition of SWA official in Sec. 651.10
and to revise the definition of ES staff in Sec. 651.10 to mean 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 who are funded, in whole
or in part, by Wagner-Peyser Act funds. As relevant here, the
Department proposes to remove the requirement in Sec. 653.108(b) for
the SMA to be a SWA Official and to revise Sec. 653.108(c) to require
that the SMA be a senior level ES staff employee. While the specifics
of this proposal are discussed in detail subsequently, the Department
notes here that the term ES staff is intended to clarify that the
proposed regulation would require the SMA to be not only a State
employee, but a State merit-staff employee. This proposal, if
finalized, will lead to more consistent delivery of services to ES
customers. As a universal access system, it is vital that the ES be
administered consistently across all States and that services are
delivered effectively and equitably. Returning to the requirement that
ES services be provided by State merit staff would help ensure that ES
services are delivered by knowledgeable personnel in a manner
consistent from State to State and allow for accountability that other
staffing models cannot duplicate.
The Department additionally proposes several revisions to Sec.
653.108(c) 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. With these proposed changes,
the Department seeks to align the status of the SMA with that of the
Equal Opportunity (E.O.) Officer because the SMA's role is similar to
the E.O. Officer's role. Both are charged with ensuring compliance with
regulations put in place to ensure individuals have meaningful access
to services and equal employment opportunities. In 2016, the DOL Civil
Rights Center (CRC) expanded on previous requirements specifying the
authority and status that E.O. Officers must have to ensure they can
most efficiently and effectively carry out the recipients'
nondiscrimination obligations. See generally, 29 CFR 38.28 through
38.33.\11\ According to CRC's NPRM,\12\ the changes were intended to
address feedback from E.O. Officers that they lacked sufficient
authority to carry out their responsibilities. Similarly, in returning
to merit-staffing in this rulemaking, the Department proposes to more
specifically describe the required status of the SMA. Prior to the 2020
Final Rule, Sec. 653.108(c) required the SMA to have direct, personal
access, when necessary, to the State Administrator, and status and
compensation comparable to other State positions assigned similar
levels of tasks, complexity, and responsibility. By requiring the SMA
to be a senior-level ES staff employee who reports directly to the
State Administrator or their designee, this proposed rule would provide
concrete ways to ensure that the SMA has status equivalent to what
Sec. 653.108(c) required prior to the 2020 Final Rule. This
specification will also address feedback from many SMAs, who have
reported that they lack sufficient authority to carry out their duties
identified in the ES regulations. This change would allow SMAs to more
efficiently and effectively carry out the SMA's obligation to monitor
whether the SWA is serving farmworkers in a way that is qualitatively
equivalent and quantitatively proportionate to all other job seekers.
---------------------------------------------------------------------------
\11\ Implementation of the Nondiscrimination and Equal
Opportunity Provisions of the Workforce Innovation and Opportunity
Act; Final Rule, 81 FR 87130, 87176-87179 (Dec. 2, 2016).
\12\ Implementation of the Nondiscrimination and Equal
Opportunity Provisions of the Workforce Innovation and Opportunity
Act; Notice of Proposed Rulemaking, 81 FR 4494, 4516-4517 (Jan. 26,
2016).
---------------------------------------------------------------------------
To achieve these results, the Department proposes to strengthen the
status of the SMA in several ways. First, the Department proposes at
Sec. 653.108(c) to create new paragraphs (c)(1) through (3). In
paragraph (c)(1), the Department proposes to require that the SMA be a
senior-level ES staff employee. As previously explained, enhancing the
status of the SMA by making the SMA a senior-level official will allow
the SMA to have the authority necessary to more effectively carry out
their duties. Second, proposed paragraph (c)(2) requires 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. While current regulations require the SMA to have
direct access to the State Administrator, in practice this requirement
has been insufficient for the SMA to have the authority necessary to
carry out their duties and to communicate with the State Administrator,
when the SMA finds it necessary. Reporting directly to the State
Administrator will provide more direct access to and interaction with
State leadership for the SMAs to
[[Page 23713]]
carry out their duties. The Department proposes to make clear that if
the State Administrator chooses to have the SMA report to a designee
with the authority of the State Administrator, that person cannot be
the individual who has direct program oversight of the ES. Though the
State Administrator has overall responsibility for operation and
compliance of the ES, the State Administrator is removed from the daily
management of program operations. The proposed change would help the
SMA avoid challenges that may exist if they were to report to an
individual who has direct ES program oversight, for example the ES
director, because in that case the SMA would be responsible to monitor
compliance with decisions their direct supervisor made or was otherwise
directly responsible for. Third, proposed paragraph (c)(3) would
require that the SMA have the knowledge, skills, and abilities
necessary to fulfill the responsibilities as described in this subpart.
This proposed revision is intended to clarify the qualifications that
SMAs must have to effectively perform all required SMA functions.
The Department does not anticipate that these revisions to Sec.
653.108(c) will cause undue burden on the SWA. The State Administrator
may restructure the current SMA position to meet the requirements of
part 653. Moreover, the requirement that State Administrators appoint
an SMA is longstanding, and several States already staff their SMA
position as described in the proposed revisions (i.e., where the SMA is
a senior-level ES staff member who reports directly to the State
Administrator or their designee). The proposed revisions will ensure
all SWAs meet these same standards. The Department recognizes it may
take States with SMA positions that do not already meet these standards
some time to implement the standards. Accordingly, the Department seeks
comments on whether it should provide a transition period to allow
States additional time to come into compliance with the revised
standards, and if so, the appropriate duration of such a period.
The Department additionally proposes to enhance the authority of
the SMA through several revisions to Sec. 653.108(d) and the addition
of paragraph (e). Specifically, the Department proposes 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. While requiring that the SMA have sufficient staff
necessary to fulfill effectively all the duties set forth in the
subpart is not a new requirement, the Department seeks to clarify that
the SMA must also have sufficient authority, resources, and access to
top management to carry out their duties. The Department also proposes
to specify that the number of ES staff positions required by this
section must be assigned to the SMA The Department proposes to clarify
that these positions specifically relate to ES staff assigned to the
SMA to help the SMA carry out the duties set forth in Sec. 653.108,
and that they may not be assigned conflicting roles to perform any of
outreach responsibilities, ARS processing, or complaint processing.
The Department proposes a new paragraph (e) to specify 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
proposed paragraph would maintain the requirement currently in
paragraph (d) for any State proposing less than full-time staffing to
demonstrate that all SMA functions can be effectively performed with
part-time staffing, but would require the State to make this
demonstration to the RMA in addition to the RA. This proposed revision
clarifies that the RA must approve the exception to the requirement for
a full-time SMA and that the SWA must demonstrate that part-time
staffing will not affect the needs of and service delivery to MSFWs in
the State and that the SMA will be able to effectively fulfill their
duties while working on a part-time basis. The Department anticipates
that a SWA would provide both qualitative and quantitative data and
information in making its request, and it plans to provide States
guidance on the factors that the RA and RMA will consider when States
request part-time staffing for the SMA position.
The Department proposes to revise Sec. 653.108(e) (now proposed
Sec. 653.108(f)) by removing the requirement for the SMA to attend,
within the first 3 months of their tenure, a training session conducted
by the RMA. Instead, the Department proposes to require all SMAs and
their staff to attend training session(s) offered by the RMAs, the NMA,
and their team, and those necessary to maintain competency and enhance
SMA's understanding of the unique needs of farmworkers. The Department
proposes that such trainings must include those identified by the
applicable RMA and may include those offered by the Occupational Safety
and Health Administration (OSHA), WHD, the Equal Employment Opportunity
Commission (EEOC), the Immigrant and Employee Rights Section of the
Department of Justice's Civil Rights Division, CRC, and other
organizations offering farmworker-related information. These revisions
are proposed to clarify the SMA's responsibility to attend necessary
training and keep apprised of issues affecting MSFWs to effectively
carry out their duties as the SMA. Historically, there have been
numerous cases where SMAs did not or could not attend trainings offered
by the RMAs or NMA. This provision seeks to clarify the SMA's
responsibility to attend the trainings and increase SMA training
opportunities and attendance.
The Department proposes to redesignate Sec. 653.108(f) and (g) due
to updated sequencing.
The Department proposes to revise Sec. 653.108(g)(1) (now proposed
to be 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 subordinate 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
center 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 requirements in
proposed paragraphs (h)(1)(i) and (iii) currently exist at Sec.
653.108(g)(1) and the minor proposed revisions to these requirements
are intended only to clarify the existing requirements. Specifically,
in paragraph (h)(1)(i), the Department proposes to add a requirement
that ongoing reviews include monitoring compliance with Sec. 653.111
to highlight the importance of significant MSFW one-stop centers in
staffing appropriately to meet the unique needs of farmworkers. The
Department proposes to add Sec. 653.108(h)(1)(ii) to clarify 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. Finally, the Department proposes to
clarify in paragraph (h)(1)(iii) that SMAs must review informal
resolution of complaints and apparent violations to ensure that
resolution of matters is occurring consistent with the requirements in
part 658, subpart E.
[[Page 23714]]
The Department proposes to redesignate Sec. 653.108(g)(1) as Sec.
653.108(h)(2) and revise the regulatory text by replacing ``local
offices'' with ``ES offices'' to align with the defined term for ES
office in Sec. 651.10. The Department further proposes to revise the
paragraph by clarifying that the SMA, if warranted, can notify the SWA
of the corrective action(s) necessary to address the deficiencies
described earlier in the paragraph, and that the corrective action plan
must comply with the requirements at proposed paragraph (h)(3)(v). This
revision is intended to clarify that the corrective action plan is the
method by which a SWA or ES office achieves compliance with the SMA's
compliance findings. The existing regulatory text provides that the SMA
may request a corrective action plan, which does not appear to require
the SWA or ES office to take corrective action. The proposed revision
clarifies that SMAs assure compliance by documenting noncompliance,
describing the corrective actions necessary for the SWA to come into
compliance, reviewing the corrective action plan that the SWA or ES
office develops to implement the identified corrective action(s),
documenting compliance or lack of compliance with the corrective action
plan, and reporting to ETA any noncompliance. Once noncompliance is
identified, SWAs have a responsibility to address it, as described in
part 653, subpart D.
The Department proposes to redesignate Sec. 653.108(g)(2) to be
Sec. 653.108(h)(3) and to clarify that SMAs must conduct onsite
reviews of one-stop centers regardless of whether or not the one-stop
center is designated as a significant MSFW one-stop center. This is an
important clarification because SMAs often mistakenly think they only
need to review significant MSFW one-stop centers. The Department also
proposes a clarifying edit to this paragraph by adding that the reviews
must follow procedures set forth in paragraphs (h)(3)(i) through (vii)
of this section. This is proposed to help the structure of paragraph
(h)(3) and its subordinate paragraphs. Correspondingly, current
paragraph (g)(2)(ii), which is proposed to be new paragraph (h)(3)(ii),
contains proposed clarifying edits, which state ``The SMA must ensure.
. .'' instead of the existing ``Ensure. . . .'' Finally, the Department
proposes to specify that the complaint logs that the SMA must review
pursuant to Sec. 653.108(g)(2)(i)(D) (proposed Sec.
653.108(h)(3)(i)(D)) are the complaint logs required by the regulations
under part 658 of this chapter.
At Sec. 653.108(g)(2)(iv), which is proposed Sec.
653.108(h)(3)(iv), the Department proposes a few revisions. First, the
Department proposes to add a comma after ``After each review,'' for
technical clarity and readability. Next, the Department proposes to
specify that the SMA's conclusions include findings and areas of
concern by adding ``including findings and areas of concern,'' after
``The conclusions.'' The Department proposes this revision to make the
SMA's monitoring align with the ETA monitoring format, which Sec.
653.108(g)(3)(ii) requires the SMA use as a guideline. The Department
also proposes to add a requirement that the SMA's report be sent
directly to the State Administrator.
The Department also proposes to revise current Sec.
653.108(g)(2)(v) (proposed 653.108(h)(3)(v)) in several ways. First,
the Department proposes to add that the SMA's report must include the
corrective action(s) required. Second, the Department proposes to
specify that, to resolve the findings, the ES Office Manager or other
appropriate ES staff must develop and propose a written corrective
action plan. These changes conform the SMA's monitoring process with
the ETA monitoring format, which requires the monitor to identify the
corrective actions required. The Department proposes to add ``the''
before ``actions,'' as a technical edit. The Department also proposes
to revise the third sentence to clarify that the corrective action plan
should be designed to bring the ES office into compliance within 30
days, and to specify that where a plan is not designed to bring the ES
office into compliance within 30 days, the length of and reasons for
the expended period must be specifically stated and the plan must
specify the major interim steps that the ES office will take to correct
the compliance steps identified by the SMA. In other words, only if
there is a documented justification for compliance to take longer than
30 days can such efforts be ``steps'' rather than full compliance. This
revision is designed to help ensure SWAs resolve identified compliance
issues.
At current Sec. 653.108(g)(2)(vii), which is proposed to be
paragraph (h)(3)(vii), the Department proposes to allow the SMA to
delegate reviews to their staff instead of ``a SWA official'' because
SMA staff may conduct such reviews under the authority of the SMA. This
change will clarify that other persons who conduct reviews on behalf of
the SMA must be the SMA's staff, who should share the same objectives
of the SMA, helping ensure that the role of the monitor advocate is
effectively carried out. The Department also proposes that the SMA may
delegate the reviews whenever the SMA finds such delegation necessary,
as opposed to when the State Administrator finds such delegation
necessary. This proposed change aligns with the proposal for the SMA to
be a senior-level official with greater authority within the SWA. The
SMA, therefore, should be empowered to make the determination about
whether such delegation is necessary. The Department also proposes to
remove the words ``and when'' from the phrase ``if and when'' in this
paragraph. As such, the proposed paragraph now states that the SMA may
delegate the review described in Sec. 653.108(h)(1) to the SMA's
staff, if the SMA finds such delegation necessary, and in such event,
the SMA is responsible for and must approve the written report of the
review.
The Department proposes to revise Sec. 653.108(g)(3) (proposed
paragraph (h)(4)) to 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, instead of ``a SWA official.'' This change is
proposed because it is important for these reviews to be conducted by
staff who share the SMA's objectives. As previously noted, the SMA's
staff are responsible to assist the SMA in carrying out the SMA's
duties described at Sec. 653.108.
Paragraph (g)(5), proposed Sec. 653.108(h)(6), currently requires
SMAs to review outreach workers' daily logs and other reports including
those showing or reflecting the workers' activities ``on a random
basis.'' The Department proposes to replace ``random'' with
``regular.'' SMAs were confused, at times, about what ``random'' means
and, therefore, how frequently they should be reviewing outreach
staff's logs. Replacing ``random'' with ``regular'' is intended to help
clarify the SMA's responsibility that these reviews occur on a regular
basis. The frequency of these reviews may vary based on how many
outreach staff each SWA has; however, there should be some standard of
frequency in each SWA to ensure regular review occurs. For example, in
SWAs with one or two outreach staff, it may be possible for the SMA to
review outreach logs every month, but in SWAs with many outreach staff,
it may be more appropriate to review outreach logs quarterly. The
Department also proposes to replace ``outreach workers'' with
``outreach staff'' throughout this paragraph to use the defined term at
Sec. 651.10.
The Department proposes to revise Sec. 653.108(g)(6), proposed
paragraph
[[Page 23715]]
(h)(7), which currently requires the SMA to write and submit Annual
Summaries to the State Administrator with a copy to the RA by adding
that a copy of the summary must also be sent to the NMA. This aligns
the requirement with paragraph (s) (proposed paragraph (u)) whereby the
Annual Summary must also be sent to the NMA. The Department also
proposes to remove the last part of the sentence, ``as described in
paragraph (s) of this section,'' as it is no longer necessary with the
addition of the NMA to this provision.
At Sec. 653.108(h), proposed paragraph (i), the Department
proposes 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.'' This is
proposed to be added to ensure the SMA participates in a way that is
helpful and productive for the RMA or NMA. In the past, there have been
cases where the SMA either was not permitted or chose not to
participate in reviews with the Federal staff. This proposed addition
helps ensure the SMA will participate when requested.
The Department proposes to redesignate Sec. 653.108(i) as Sec.
653.108(j). The Department proposes to remove the provision permitting
the State Administrator to assign the SMA the responsibility as the
Complaint System Representative, and the requirement that the SMA
participate in the Complaint System set forth in part 658, subpart E.
As explained later in the section of the preamble addressing part 658,
subpart E, the Department is proposing to prohibit SWAs from assigning
SMAs responsibility for processing complaints. The Department is
proposing to remove SMAs from Complaint System processing because this
section tasks SMAs with monitoring the Complaint System, and the
Department anticipates that SMAs will be more objective in monitoring
the Complaint System if they are not tasked with monitoring work that
they themselves perform. This change would result in greater safeguards
for MSFWs within the Complaint System. The Department proposes to make
corresponding edits to part 658, subpart E.
The Department proposes to redesignate Sec. 653.108(j) and (k), as
a technical edit.
The Department proposes a new provision at proposed Sec.
653.108(m). This provision is proposed to state how the SMA must
establish an ongoing liaison with the State-level E.O. Officer. The
Department proposes this addition to enhance equity and inclusion for
farmworkers. When SMAs work closely with the State-level E.O. Officer,
the SMA will have a better sense of steps the State is taking to meet
its equity requirements pursuant to WIOA sec. 188, and how the SMA can
better ensure services are provided equitably for MSFWs. The SMA can
also provide information to the State-level E.O. Officer on patterns in
service provision.
The Department proposes to redesignate Sec. 653.108(l) as Sec.
653.108(n), and to make a conforming revision to the cross reference in
this paragraph so that the organizations with which the SMA must meet
are updated to reflect the organizations described in proposed
paragraph (l) and the State-level E.O. Officer referred to in proposed
paragraph (m). This will mean that Sec. 653.108(n) would refer to the
paragraphs requiring the SMA to establish an ongoing liaison with NFJP
grantees, other organizations serving farmworkers, employers, and
employer organizations in the State, and the State-level E.O. Officer.
The Department also proposes to add a requirement that SMAs must
communicate freely with these individuals and organizations to enable
the SMA to communicate efficiently, so that important information is
not delayed due to the SMA needing to get approval to speak with these
individuals and groups. This proposed change also conforms with the
proposed revisions to the SMA's position as a senior-level staff
member, who should have the discretion to communicate, as they find
appropriate. In addition, the Department proposes to remove the
requirement that the SMA receive complaints and assist in referrals of
alleged violations to enforcement agencies to conform with the proposal
to remove the SMA from Complaint System processing, as explained
previously.
The Department proposes to redesignate Sec. 653.108(m) as
653.108(o), as a technical edit. The Department also proposes to revise
this paragraph to clarify that when the SMA conducts field visits, they
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 explaining and providing direct employment services and
access to other employment-related programs. The purpose of the SMA's
field visits is distinct from the direct ES services that outreach
staff provide to MSFWs in the field, because the SMA is tasked with
assessing how the ES is functioning and whether the SWA can make
improvements, as opposed to the direct provision of ES services. This
proposed revision helps clarify that SMA field visits are for a
different purpose than outreach staff field visits.
The Department proposes to redesignate Sec. 653.108(n) through (p)
as Sec. 653.108(o) through (q), as a technical edit.
The Department proposes to redesignate Sec. 653.108(q) as Sec.
653.108(s), as a technical edit. The Department also proposes a
technical edit to remove the reference to SWA staff and keep only ``ES
staff'' to align with the proposed definition for ES staff at Sec.
651.10. Because SWA staff are included in the proposed definition of ES
staff, this will not change the substance of the paragraph. The
Department further proposes to simplify the wording of the paragraph by
replacing the phrase ``Subsequent to'' with the word ``After.''
The Department proposes to redesignate Sec. 653.108(r) and (s) as
Sec. 653.108(t) and (u), respectively, as a technical edit.
The Department proposes to redesignate Sec. 653.108(s) as Sec.
653.108(u). Proposed paragraph (u) requires 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. It includes subordinate paragraphs (1) through (11), which
identify the various required components of the Annual Summary.
The Department proposes to revise Sec. 653.108(s)(2), proposed
Sec. 653.108(u)(2), to conform with proposed edits at Sec.
653.108(c). Specifically, Sec. 653.108(s)(2) currently requires an
assurance that the SMA has direct, personal access, whenever they find
it necessary, to the State Administrator. Proposed paragraph (u)(2)
would require 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 Sec. 653.108(c).
The Department proposes to amend Sec. 653.108(s)(3)(i) and (ii),
proposed 20 CFR 653.108(u)(3)(i) and (ii), to revise the assurance
requested in the SMA's Annual Summary regarding SMA staffing levels.
Currently, the Annual Summary requires an assurance that the SMA
devotes all of their time to Monitor Advocate functions, or, if the SMA
conducts their functions on a part-time basis, an explanation of how
the SMA functions are effectively performed with part-time staffing.
This paragraph is proposed to be revised in several ways. First,
proposed paragraph (u)(3) would begin with a requirement to provide an
evaluation of SMA staffing levels, and it would be followed by Sec.
653.108(u)(3)(i) and (ii), which would outline the
[[Page 23716]]
contents of this evaluation. Specifically, paragraph (u)(3)(i) would
require the SMA to assure that they devote all their time to Monitor
Advocate functions, or if the SMA has approval under Sec. 653.108(e)
to conduct their functions on a part-time basis, an assessment of
whether they can perform all their functions effectively on a part-time
basis. Paragraph (u)(3)(ii) would additionally require the SMA to
assess 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. This information will help the RMA and NMA better understand
whether the SMA's status as full- or part-time is sufficient for them
to carry out their duties, and whether the SMA requires additional
staff to perform all the functions required by this section. The
previous requirement for an assurance did not provide the depth,
context, or explanation necessary for the State Administrator or the
Department to assess whether the SMA has adequate staffing.
The Department proposes to revise Sec. 653.108(s)(4) (iii),
proposed Sec. 653.108(u)(4)(iii), to clarify that the summary of any
technical assistance the SMA provided must include any technical
assistance provided to outreach staff, in addition to technical
assistance provided to the SWA and ES offices. While outreach staff are
considered part of the SWA, the Department proposes to clarify that the
summary must specifically identify the technical assistance that the
SMA provided to outreach staff, so that the State Administrator and the
Department may better assess whether outreach staff are obtaining the
knowledge and resources necessary to fulfill their duties.
The Department proposes to revise Sec. 653.108(s)(5), proposed
Sec. 653.108(u)(5), 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. Through this analysis, the Department would like to
understand whether the SMA believes 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 Department proposes to revise Sec. 653.108(s)(7), proposed
Sec. 653.108(u)(7), by adding that in addition to providing a summary
of how the SMA is working with WIOA sec. 167 NFJP grantees, the SMA
must provide a summary of how they are working with the State-level
E.O. Officer. This revision aligns with the proposed requirement at
proposed Sec. 653.108(m) for the SMA to establish an ongoing liaison
with the State-level E.O. Officer. The inclusion of this information in
the Annual Summary will allow State Administrators, RMAs, and the NMA
to review what the SMA is doing to fulfill the new liaison requirement
(e.g., how frequently are they meeting with the State-level E.O.
Officer, the type of information that is shared, any best practices or
lessons learned).
The Department proposes to revise Sec. 653.108(s)(10), proposed
Sec. 653.108(u)(10), which currently requires the SMA to provide a
summary of activities related to the AOP and an explanation of how
those activities helped the State reach the goals and 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 goals set forth in the AOP, and a description
of the goals which were not achieved and the steps the SWA will take to
address those deficiencies. The Department proposes to replace the
requirement to explain ``how'' the activities helped the State reach
the goals and objectives described in the AOP with a requirement to
explain ``whether'' the activities helped the State reach the
objectives described in the AOP. This revision better reflects the
information that the Department seeks (i.e., whether these activities
helped the State meet its objectives). The Department also proposes to
remove ``goals'' from the first sentence and to replace ``goals'' with
``objectives'' in the second sentence, because the Department does not
ask States to identify specific goals in the AOP. Rather, the SWA
provides objectives in its AOP, and the SMA's Annual Summary should
explain whether the activities that the SWA performed that year are
meeting the identified objectives.
The Department proposes two clarifying edits to Sec.
653.108(s)(11), proposed Sec. 653.108(u)(11). First, the Department
proposes to replace significant MSFW ``ES offices'' with significant
MSFW ``one-stop centers'' to align with the defined term at Sec.
651.10. Second, the Department proposes to revise the requirement for
the SMA to summarize the State's efforts to provide ES staff in
accordance with Sec. 653.111, to require the SMA to summarize the
State's efforts to comply with Sec. 653.111. The Department
anticipates that this change will put greater emphasis on compliance
with the requirements of Sec. 653.111.
Section 653.109 Data Collection and Performance Accountability Measures
Section 653.109 specifies data collection and performance
accountability measures specific to MSFWs. The Department proposes to
make several revisions to this section.
First, the Department proposes to add a new data collection
requirement in paragraph (b) of this section. Specifically, the
Department proposes to add Sec. 653.109(b)(10), which would require
SWAs to collect the number of reportable individuals and participants
who are MSFWs. The Department anticipates that access to this
information will help the SWAs and the Department to better understand
how many MSFWs are engaging with the ES, either as reportable
individuals or participants, and to identify potential issues
surrounding MSFW access to ES services. Specifically, Monitor Advocates
will be able to compare the number of MSFW reportable individuals and
the number of MSFW participants and use this data to identify potential
areas where MSFWs are not being offered participant-level services. The
collection of this data is consistent with the Monitor Advocate
System's purpose to monitor whether MSFWs have meaningful access to
services in a way that is appropriate to their particular needs. SWAs
commonly report few or no MSFW ES participants, which creates the
concern that MSFWs do not have access to ES services. This piece of
information will enable Monitor Advocates to identify cases where there
may be larger numbers of MSFW reportable individuals, but few or no
MSFW participants. Without this information, Monitor Advocates and the
Department lack data necessary to identify whether that problem exists,
and cannot work to correct the problem, if it is present.
Second, the Department proposes to redesignate Sec. 653.109(b)(10)
as Sec. 653.109(b)(11), as a technical edit to account for the
insertion of proposed Sec. 653.109(b)(10).
Third, the Department proposes several revisions to Sec.
653.109(h), which sets forth the minimum levels of service that
significant MSFW States must meet. First, the Department proposes to
replace the requirement that a significant MSFW State measure the
number of outreach contacts per ``week'' with the number of outreach
contacts per ``quarter'' to align with the SWA's quarterly data
submissions to the Department. SMAs have provided
[[Page 23717]]
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.
Second, the Department proposes to clarify that it will not update
minimum service level indicators on an annual basis, by removing ``for
each year'' from the last sentence in Sec. 653.109(h). The
Department's practice has been that minimum service level indicators
have not been updated each year because the Department has not
identified such a need. This revision would align the regulation with
what is happening in practice.
Section 653.110 Disclosure of Data
The Department proposes to revise Sec. 653.110(b) by removing the
word ``the'' before ``ETA,'' as a technical edit.
Section 653.111 State Workforce Agency Staffing Requirements for
Significant MSFW One-Stop Centers
The Department proposes several revisions to Sec. 653.111, which
outlines SWA staffing requirements for significant MSFW one-stop
centers. First, the Department proposes to revise the heading of this
section to clarify that the staffing requirements in this section apply
only to significant MSFW one-stop centers.
Second, the Department proposes 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, and 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 proposes this change to specify that SWAs
must recruit qualified candidates who meet the criteria for outreach
workers in Sec. 653.107(a)(3). SWAs have some discretion to create a
plan to meet the standard, but the ultimate requirement is for SWAs to
recruit qualified candidates who meet these criteria.
Third, for purposes of consistency, the Department proposes a
technical edit to replace ``special needs of MSFWs'' with ``unique
needs of MSFWs,'' to conform to the terminology that the Department
uses elsewhere in the ES regulations.
2. Subpart F--Agricultural Recruitment System for U.S. Workers (ARS)
Subpart F sets forth the regulations governing the ARS.
Section 653.501 Requirements for Processing Clearance Orders
Section 653.501 describes the requirements that ES staff must
follow when processing clearance orders for the ARS. As explained
subsequently, the Department proposes to make several substantive and
technical revisions to this section.
The Department proposes to make a minor clarifying edit to Sec.
653.501(a) by replacing the terms ``ES office'' or ``SWA official''
with ``ES staff'' to conform with the proposed revision to the
definition of ES staff at Sec. 651.10.
The Department proposes 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 Office of Foreign Labor Certification (OFLC)
and Wage and Hour Division (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. The Department's mission is to
promote the welfare of workers. This addition is intended to further
that mission by ensuring that ES offices do not place U.S. workers with
employers who are presently barred from employing immigrant and
nonimmigrant workers via the employment-based visa programs. This
requirement protects workers who may be using the ARS by ensuring that
the ARS is not used to place a worker with an employer that has failed
to comply with its obligation(s) as an employer of foreign workers.
ETA's regulations at 20 CFR 655.73, 655.182, 655.473, 656.31(f), and
the Wage and Hour Division's regulations at 29 CFR 503.24 describe the
violations that may result in an employer's debarment from receiving
future labor certifications for a specified time period. The potential
reasons for debarment include serious violations that could affect
worker safety, for example ``[a] single heinous act showing such
flagrant disregard for the law'' that future compliance with program
requirements cannot reasonably be expected (Sec. 655.182(d)(1)(x)).
Such reasons also include an employer's substantial failure to comply
with regulatory requirements, including an employer's failure to pay or
provide the required wages or working conditions, an employer's failure
to comply with its obligations to recruit U.S. workers, or an
employer's failure to cooperate with required audits or investigations.
Additionally, an employer's failure to pay a necessary certification
fee in a timely manner may result in debarment. In the Department's
view, whether the reason an employer is debarred from an OFLC program
(or programs) is directly related to worker safety, failure to provide
required wages or working conditions, failure to comply with
recruitment requirements or participate in required investigations or
audits, or failure to pay required fees, the employer subject to
debarment should be excluded from participation in the ARS. The
Department does not want to facilitate placement of workers with
employers whose actions have risen to a level that warrants debarment.
The Department proposes 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.
In addition, the Department proposes to make several technical and
conforming edits in Sec. 653.501(d). First, the Department proposes to
revise Sec. 653.501(d)(1) by clarifying that the provision refers to
the ``order-holding ES office,'' instead of ``order-holding office,''
as it is currently written. This proposed change aligns with Sec.
651.10 by using the defined term, ES office.
Second, the Department proposes to revise Sec. 653.501(d)(3) by
referring to ``this paragraph'' instead of ``paragraph (d)(3) of this
section'' for clarity.
Third, the Department proposes to revise Sec. 653.501(d)(6) to
remove the explicit instruction for ES staff to assist all farmworkers
``upon request in their native language.'' This revision is intended to
align with the broader proposed revisions regarding language access in
this NPRM. Because the Department proposes in this NPRM to clarify that
SWAs must already comply with the language access and assistance
requirements at 29 CFR 38.9, the language access requirement here is
redundant, unnecessary, and potentially confusing, because it may
appear to set a different standard.
Fourth, the Department proposes to revise Sec. 653.501(d)(10) to
remove the sentence requiring checklists under this paragraph to be in
the workers' native language because, as previously mentioned, language
access requirements are already provided at 29 CFR 38.9 and retaining
this language
[[Page 23718]]
would be redundant and unnecessary. The Department also proposes to
remove the requirement that SWAs must use a standard format provided by
the Department (such as Form WH516 or a successor form) to provide
workers referred to clearance orders a checklist summarizing wages,
working conditions, and other material specifications in the clearance
order. Removing this requirement would provide SWAs with greater
flexibility to develop and use their own forms that meet their needs.
Under the proposed revision, SWAs may still use standard forms,
including the WH516, but they would not be required to use a standard
form. Regardless, the checklist that the SWA provides workers must
include the material terms and conditions of employment that are
required to be included in clearance orders pursuant to Sec.
653.501(c)(1)(iv).
Finally, the Department proposes to revise Sec. 653.501(d)(11) to
replace the reference to the Department's ``ARS Handbook'' with a
reference to ``Departmental guidance.'' As proposed, Sec.
653.501(d)(11) would require the applicant-holding office to give each
referred worker a copy of the list of worker's rights described in
Departmental guidance. This revision is intended to reflect the fact
that this list of worker's rights may be available in different
documents and formats in the future.
Section 653.503 Field Checks
The Department proposes to make two conforming and clarifying edits
to the regulations governing field checks in Sec. 653.503. First, the
Department proposes 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. This change would increase
health and safety of MSFWs by adding an additional safeguard against
dangerous transportation tied to their employment.
Second, the Department also proposes to remove that the field
checks are ``random.'' The proposed revision would 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, thereby improving MSFW worker protection.
In addition, if a SWA makes placements on 9 or fewer clearance orders,
the SWA must conduct field checks on 100 percent of those clearance
orders. See Sec. 653.503(b). Therefore, in those cases, field checks
could not be conducted on a random basis.
E. Part 658--Administrative Provisions Governing the Wagner-Peyser Act
Employment Service
This part sets forth the regulations governing the Complaint System
for the Wagner-Peyser Act Employment Service (ES) at the State and
Federal levels. Specifically, the Complaint System processes complaints
against an employer about the specific job to which the applicant was
referred through the ES, and complaints involving the failure to comply
with ES regulations under 20 CFR parts 651, 652, 653, and 654. The
Complaint System also accepts, refers, and, under certain
circumstances, tracks complaints involving employment-related laws as
defined in Sec. 651.10. While the Complaint system is available to
MSFWs and non-MSFWs, the Complaint System includes additional shorter
processing timelines and additional follow-up on MSFW-related
complaints, which are designed to provide increased protection for
MSFWs. The Department proposes to revise several regulations within
this part 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. The Department also
proposes to remove the requirement that the SMA serve as a Complaint
System Representative and eliminate the requirement that SMAs must
process MSFW complaints. The Department is proposing these revisions
because Sec. 653.108 requires the SMA to monitor the Complaint System,
and the proposed revisions would remove the challenge that exists when
the SMA is required to monitor their own actions in processing MSFW
complaints. The Department anticipates that an SMA will be more
objective in monitoring the Complaint System if they are not tasked
with monitoring their own actions. The proposed revisions would
maintain the integrity of the Monitor Advocate System as it provides
safeguards to MSFWs who participate in the Complaint System, and they
would allow SMAs to focus their attention on monitoring the ES services
that are provided to MSFWs in their State.
The Department has observed through analysis of SWA quarterly Labor
Exchange Agricultural Reporting System 5148 Reports, meetings with SMAs
and RMAs, and other communications with SWAs, that SWAs misunderstand
several of the requirements currently in part 658. These
misunderstandings have caused inaccurate recordkeeping and reporting,
which impede the ability of SMAs and the Department to monitor MSFW
complaints to determine whether the Complaint System is processing MSFW
complaints consistently with the governing regulations. The Department
also has received information, through 5148 Reports and Monitor
Advocate Annual Summaries, that Complaint System activity is low in
many States. Through Wage and Hour Division (WHD) investigations, news
reports, SMA Annual Summaries, conversations with farmworkers and
farmworker advocacy organizations, and anecdotal information SMAs share
with the Department, the Department concludes that violations of
employment-related laws against MSFWs may be prevalent across the
country--therefore, it is concerning that Complaint System activity is
low. In Program Year 2019 (July 2019-June 2020), which is the most
recent complete set of data available, at least eight States did not
report any MSFW complaints. RMAs and the NMA have communicated concerns
to the Department that one of the reasons complaint numbers may be low
is because MSFWs are unaware of the Complaint System, or SWAs are not
processing or recording complaints correctly.
Through SWA 5148 Reports and RMA monitoring, the Department has
identified several common requirements in the regulatory text that SWAs
may misunderstand. These misunderstandings have a direct impact on the
availability and correct processing of complaints. To address these
issues, several of the proposed revisions are more prescriptive than
the existing regulatory text and specifically clarify terms and other
requirements.
1. Subpart E--Employment Service and Employment-Related Law Complaint
System (Complaint System)
Section 658.410 Establishment of Local and State Complaint Systems
The Department proposes to amend Sec. 658.410(c) to replace the
word ``SWA'' with ``State'' so that it clearly points to the defined
term ``State Administrator.'' This change will clarify which specific
individual is responsible to ensure a central complaint log is
maintained.
The Department proposes to remove language in Sec. 658.410(c)(6)
that the complaint log must include actions taken on apparent
violations and, instead, add several specific references in Sec.
658.410(c)(1) through (6) that explain that each requirement also
applies to apparent violations. These proposed changes are intended to
clarify
[[Page 23719]]
that the complaint log must document all the same components for
apparent violations, except for the complainant's name because there is
no complainant for an apparent violation. The Department commonly
identifies issues through RMA monitoring of SWAs where complaint logs
do not document apparent violations. These proposed revisions would
clarify the requirement to document apparent violations and specify the
information that SWAs must include on the complaint log.
The Department also proposes to amend Sec. 658.410(c)(6) to make
all uses of the word ``action'' plural because there may be several
actions taken to appropriately process a complaint or apparent
violation. This change is necessary to clarify to SWAs that they must
document all actions. The Department also proposes to describe the type
of information SWAs must include in their complaint logs by noting that
it includes any documents the SWA sent or received and the date the SWA
took such action(s). This change will mean the SWA must specifically
record documents the SWA sent or received, and the dates of those
actions, on the complaint log. Through monitoring SWAs, the Department
has observed that SWAs often do not keep records of all actions taken.
Instead, SWAs often have minimal information listed on their complaint
logs. The proposed changes are purposefully prescriptive because it is
critical that the Department has records of all documents sent and
received related to complaints and apparent violations. This allows the
Department to have sufficient information to monitor SWA complaint and
apparent violation processing. These records are also critical when RAs
receive appeals from SWA determinations and must review whether a SWA's
actions are compliant.
The Department proposes to amend Sec. 658.410(g) to remove the
word ``local,'' which comes before ``ES office'' in the existing
regulatory text. This proposed change is appropriate because ES office
is a defined term at Sec. 651.10 and, therefore, the word ``local'' is
not necessary. Removal of the word ``local'' will also clarify that the
regulatory text is not referring to a different type of office.
The Department proposes to remove the requirement in Sec.
658.410(h) that the SMA must 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 processing MSFW complaints. The Department is
proposing this change because SMAs are also tasked with monitoring the
Complaint System, and the Department anticipates that SMAs will be more
objective in monitoring the Complaint System if they are not tasked
with monitoring work that they themselves perform. Removing this
responsibility would also allow SMAs to focus their attention on
monitoring the ES services provided to MSFWs in their State.
For similar reasons, the Department proposes to revise Sec.
658.410(m) to replace ``SMA'' with ``Complaint System Representative.''
This proposal is consistent with other changes throughout part 658 that
remove the SMA's direct involvement in the Complaint System, including
the proposed removal of the SMA being designated to process MSFW
complaints.
The Department proposes to remove Sec. 658.410(n), which currently
addresses correspondence to complainants who are English-language
learners. The Department has determined that it is no longer necessary
to include explicit requirements regarding language access in various
sections of the ES regulations, because all one-stop centers and ES
staff must comply with the language access and assistance requirements
in 29 CFR 38.9 with regard to all LEP individuals, including those LEP
individuals who file complaints under the Complaint System set forth in
this subpart. This proposed revision is consistent with the
Department's proposed addition in Sec. 653.103(b), which would require
SWAs to comply with the language access and assistance requirements at
29 CFR 38.9 with regard to all LEP individuals, including MSFWs who are
LEP individuals, as defined at 29 CFR 38.4(hh). The proposed revision
would specify that this requirement includes ensuring ES staff in one-
stop centers comply with these language access requirements. The
regulations at 29 CFR 38.9 establish that language access requirements
apply to services provided to all LEP individuals at all one-stop
centers and are broader than the existing requirement at Sec.
658.410(n). For these reasons, the reference in Sec. 658.410(n) is no
longer necessary. Like the reasons laid out previously in the preamble
concerning proposed changes to Sec. 653.103(b), having a specific
reference to LEP translations for complaint correspondence may
inaccurately create the appearance that there are two sets of language
access standards or that requirements for the Complaint System are
narrower. Removing the reference clarifies that the full scope of 29
CFR 38.9 also applies to LEP individuals participating in the Complaint
System.
Due to the proposed removal of current regulatory text in Sec.
658.410(n), the Department proposes to redesignate the existing
regulatory text at Sec. 658.410(o) as Sec. 658.410(n).
Section 658.411 Action on Complaints
The Department proposes to amend Sec. 658.411(a)(2)(ii) to remove
the word ``and'' before ``telephone numbers'' in the listed methods to
contact a complainant, and to add ``and any other helpful means by'' to
broaden the scope of contact methods requested from complainants. In
addition, the Department proposes to indicate that there may be
multiple physical addresses and email addresses through which a
complainant could be contacted. The Department has received information
from SWAs and other grantee organizations, including NFJP grantees,
that MSFWs often do not have or respond to traditional methods of
communication, including mail, email, and telephone. Specifically,
migrant farmworkers move from one location to another for work, so it
is not always reliable or efficient to send communications through mail
to their last known or permanent addresses. Additionally, SWAs and NFJP
grantees indicate that MSFW youth often are more responsive to
communication sent through social media and other applications. In the
process of advising SWAs regarding complaints, the Department has
encountered several cases where SWAs closed complaints because the
complainant failed to respond to the SWA. It is possible that a portion
of these failures to respond are due to lack of current contact
information, instead of the complainant's desire to close the
complaint. The Department's proposed revision addresses this issue by
directing SWAs to request from complainants any other helpful means by
which they might be contacted, which would broaden the potential
methods by which SWAs may contact complainants and account for the fact
that complainants may receive information through various platforms
other than physical mail, email, or telephone, including technological
applications. This would also increase the likelihood that SWAs will be
able to communicate with complainants to process complaints to
resolution. This change should improve MSFW access to the Complaint
System and increase the SWA's ability to resolve complaints.
Paragraph (b) of Sec. 658.411 covers complaints regarding an
employment-related law. The Department proposes to amend Sec.
658.411(b)(1) to replace ``a'' with ``an'' before ``ES office'' as a
[[Page 23720]]
technical grammar edit. The Department also proposes to clarify the
appropriate steps for processing employment-related law complaints
involving alleged violations of nondiscrimination laws or reprisal for
protected activity by revising Sec. 658.411(b)(1), to add a reference
to Sec. 658.411(c). This revision would clarify that the procedures in
Sec. 658.411(c) apply to any employment-related law complaint alleging
unlawful discrimination or reprisal for protected activity in violation
of nondiscrimination laws, such as those enforced by the EEOC or the
DOL's CRC, or in violation of the Immigration and Nationality Act's
anti-discrimination provision found at 8 U.S.C. 1324b.
The Department proposes three changes to Sec.
658.411(b)(1)(ii)(B). First, the Department proposes to remove both
references to the SMA making determinations and taking actions on
employment-related law complaints and replace the first with a
reference to the ``Complaint System Representative.'' This proposal is
consistent with other changes throughout part 658 that remove the SMA's
direct involvement in the Complaint System, including the proposed
removal of the SMA being designated to process MSFW complaints. As
explained earlier, the Department is proposing to remove the SMA from
Complaint System processing because the SMA duties outlined at Sec.
653.108 include monitoring the Complaint System, and the Department
anticipates that SMAs will be more objective in performing this
monitoring if they are not tasked with monitoring their own actions for
compliance. Second, the Department proposes to replace the word
``employment'' with ``ES'' before ``services'' in the last sentence to
conform with the defined term Wagner-Peyser Act Employment Service (ES)
also known as Employment Service (ES). The Department also proposes to
change ``and except'' to ``or'' to clarify that immediate action must
be taken in cases where either the Complaint System Representative
determines that it is necessary or where informal resolution would be
detrimental to the complainant.
Consistent with the proposed removal of the SMA from Sec.
658.411(b)(1)(ii)(B), the Department proposes to amend Sec.
658.411(b)(1)(ii)(D) to remove the requirement for the ES office or SWA
Complaint System Representative to refer the complaint to the SMA who
must immediately refer the complaint. Instead, under the proposed
regulatory text, the ES office or SWA Complaint System Representative
would themselves refer the complaint immediately to the appropriate
enforcement agency for prompt action. This change would remove the SMA
from Complaint System processing for the same reasons that the
Department proposes to remove the SMA from other aspects of Complaint
System processing. This proposed change is consistent with the SWA's
requirements in processing non-MSFW complaints, where staff other than
the SMA refer complaints to enforcement agencies. Additionally, this
proposed change would decrease the amount of administrative time for
complaints to be referred for prompt action by enforcement agencies. It
is important to note that this regulation specifically deals with
complaints that ES offices or SWA staff have determined need to be
referred to a State or Federal agency. Requiring staff to refer the
complaint first to the SMA, who then refers to the applicable agency,
adds unnecessary time, which may cause avoidable harm to complainants
in sensitive or otherwise serious, time-sensitive situations.
The Department proposes to remove all references to the ``SMA'' in
20 CFR 658.411(b)(1)(ii)(D) and (E) to conform with the Department's
proposal to remove the SMA from playing a direct role in Complaint
System processing. Under the proposed changes, the complaint will not
be referred to the SMA. Instead, the Complaint System Representative
must notify the complainant of the enforcement agency to which the
complaint was referred, rather than for the SMA to notify the
complainant.
The Department proposes to add Sec. 658.411(b)(1)(ii)(F) to
provide steps ES offices and SWAs must take when they receive
complaints alleging an employer in a different State has violated an
employment-related law, when such complaints are filed by or on behalf
of MSFWs. The proposed changes would require SWAs and ES offices to use
the same process for processing employment-related law complaints as
Sec. 658.411(d)(ii) currently requires for ES complaints involving an
employer in another State. This situation comes up periodically, and
the Department has advised SWAs to follow the same procedures for when
an ES complaint is filed in a different State, which includes sending
the complaint to the SWA in the other State. This addition is intended
to make the employment-related law complaint regulations consistent
with current SWA practices. Because the regulations currently do not
address this scenario, the regulations currently are unclear as to
whether ES offices and SWAs must immediately refer employment-related
law complaints against out-of-State employers to enforcement agencies
or if they should attempt to resolve MSFW-related complaints involving
employers in other States. The Department believes that the most
beneficial option is for these complaints to be referred to the SWA in
the other State, consistent with how SWAs process complaints involving
employers in other States. Additionally, the entity best situated to
process a complaint is the SWA for the State where the employer is
located, because that SWA has greater knowledge of applicable
employment-related laws and may have other records for the employer
that impact appropriate decision making. The proposed changes also
specifically require the ES office or SWA receiving the complaint to
ensure the Complaint/Referral Form is adequately completed before
sending the Complaint/Referral Form and copies of any relevant
documents to the SWA in the other State. This language is designed to
correct issues the Department has observed, where SWAs have informed
SWAs in other States of complaint information but have not completed
the Complaint/Referral Form or provided copies of any relevant
documents. As a result, the other State SWAs were not able to contact
the complainant or identify other critical information to act on the
complaint, including material facts and allegations and the identity of
the employer respondent. The proposed changes explicitly require the
referring SWA to provide this necessary documentation so that the SWA
receiving the complaint can address it appropriately.
The Department proposes to revise the heading and text of Sec.
658.411(c) to clarify that all complaints under this subpart alleging
unlawful discrimination or reprisal for protected activity should be
handled in accordance with the procedures in this paragraph. In
addition, the Department proposes to modify the procedures in this
paragraph to require an ES office or SWA in receipt of such a complaint
to log and immediately refer it to the State-level E.O. Officer. The
process set forth in the existing regulations has proven to be
confusing, because it identifies multiple officials to which
nondiscrimination complaints should be referred and requires ES staff
to determine which nondiscrimination laws are at issue. The revisions
that the Department proposes here would simplify the process by
requiring ES offices and SWAs to treat all nondiscrimination complaints
that they receive under this subpart in the same manner. Specifically,
under the
[[Page 23721]]
proposed revision, when an ES office or SWA receives such a complaint,
they will log it and immediately refer it to the State-level E.O.
Officer, regardless of the nondiscrimination law(s) at issue, and
notify the complainant of the referral in writing. The State-level E.O.
Officer will then either process the complaint if it is within their
jurisdiction or immediately refer the complaint to the appropriate
enforcement agency if it is not. This simplified referral process will
reduce confusion for ES staff and ensure that someone with appropriate
nondiscrimination expertise--the State-level E.O. Officer--will
determine how the complaint should be handled and by whom.
The Department proposes to amend Sec. 658.411(d) throughout to
replace ``a'' with ``an'' as a technical edit when it comes before ``ES
office.'' In addition, the Department proposes to revise Sec.
658.411(d)(1) to clarify that the procedures in Sec. 658.411(c) apply
to all ES complaints alleging violations of nondiscrimination laws,
including violations of EEOC regulations, the Immigration and
Nationality Act's anti-discrimination provision, or laws enforced by
CRC.
The Department proposes to rephrase Sec. 658.411(d)(2)(ii)(A),
which addresses how an ES office should process an ES complaint filed
against an employer that is not located within its service area, to
clarify the order of steps such an office must take, without
substantively changing the steps. Specifically, the proposed regulatory
text changes the phrasing from ``must send, after ensuring that the
Complaint/Referral Form is adequately completed, a copy . . .'' to
``must ensure the Complaint/Referral Form is adequately completed, and
then immediately send a copy . . . .'' This proposed change is
consistent with the proposed change at Sec. 658.411(b)(3), so that
processes for both ES complaints and employment-related law complaints
(other than alleged violations of rights under the EEOC regulations or
laws enforced by CRC, as described at Sec. 658.411(c)) are the same
when the complaint involves an employer in a different State. The
changes are, therefore, necessary for clarity and consistency.
At Sec. 658.411(d)(1)(iv), the Department proposes a technical
edit to add a comma after ``alleged agency-wide violation.''
The Department proposes to amend Sec. 658.411(d)(4)(i) and (5)(i)
to replace references to the SMA investigating, attempting informal
resolution, and making written determinations with references to the
``Complaint System Representative'' taking such actions. This proposed
change is necessary to conform to the proposed change, discussed
previously, to remove the SMA from playing a direct role in Complaint
System processing. This will strengthen the SMA's role to monitor the
Complaint System.
The Department proposes to amend Sec. 658.411(d)(5)(i) to change
``ES or SWA officials'' to ``the SWA'' because the proposed changes to
Sec. 651.10 remove the definition of SWA official.
The Department proposes to amend Sec. 658.411(d)(5)(ii) in three
ways. First, the Department proposes to change ``SWA officials'' to
``the SWA'' because the proposed changes to Sec. 651.10 remove the
definition of SWA official. Because of this proposed term change, it is
also necessary to make the word ``determine'' plural for subject-verb
agreement. Second, the Department proposes to insert ``, in writing,''
between ``request'' and ``hearing'' to clarify that the complainant
must request a hearing in writing. This change will make the procedures
consistent with Sec. 658.411(d)(5)(i)(D). Lastly, the Department
proposes to change ``working days'' to ``business days.'' Under Sec.
651.10, working days and business days have the same meaning and can be
used interchangeably. However, because this reference is located
immediately after a use of ``business days'' in Sec.
658.411(d)(5)(i)(D), it may give the appearance that there are
different meanings between the terms. To correct this issue, the
Department proposes to use the same term--``business days''--in both
places.
The Department proposes to amend Sec. 658.411(d)(5)(iii)(G) to
change ``SWA official'' to ``SWA'' because the proposed changes to
Sec. 651.10 remove the definition of SWA official. This change would
make the provision agree with the proposed definitions.
Section 658.419 Apparent Violations
The Department proposes several clarifying revisions to Sec.
658.419(a). First, the Department proposes 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 proposed regulatory text will use the term ES staff
uniformly.
The Department also proposes to change the second reference to a
``suspected violation'' in Sec. 658.419(a) to ``apparent violation''
for clarity. In addition, the Department proposes to add 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 proposes 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.
Section 658.420 Responsibilities of the Employment and Training
Administration Regional Office
The Department proposes several revisions to Sec. 658.420. First,
the Department proposes to revise Sec. 658.420(b) to conform with the
simplified process for referring nondiscrimination complaints in
proposed Sec. 658.411(c). In particular, the Department proposes 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). As explained previously under
the section addressing revisions to Sec. 658.411(c), this simplified
referral process would provide clear instruction to ETA regional staff
and task State-level E.O. Officers, who have appropriate
nondiscrimination expertise, with determining how nondiscrimination
complaints should be handled and by whom.
Second, the Department proposes to remove 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 proposes to make 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 proposes to revise 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
[[Page 23722]]
procedures for ES offices and SWAs (and not ETA regional offices).
Section 658.422 Processing of Employment-Related Law Complaints by the
Regional Administrator
The Department proposes several revisions to Sec. 658.422. First,
the Department proposes to revise paragraph (a) to clarify that this
section applies to all ``employment-related law'' complaints submitted
directly to the ETA Regional Administrator or their representative.
Second, the Department proposes to add 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).
2. Subpart F--Discontinuation of Services to Employers by the Wagner-
Peyser Act Employment Service
Section 658.501 Basis for Discontinuation of Services
The Department proposes to amend Sec. 658.501(a)(4) to add that
SWA officials must initiate procedures for discontinuation of services
to employers who are currently debarred or disqualified from
participating in one of the Department's foreign labor certification
programs. This revision corresponds to the proposed addition in Sec.
653.501(a)(4), which would require ES staff to consult the Department's
OFLC and Wage and Hour Division debarment lists prior to placing a job
order into intrastate or interstate clearance, and to initiate
discontinuation of services pursuant to this subpart if the employer
requesting access to the clearance system is currently debarred or
disqualified from participating in one of the Department's foreign
labor certification programs. As explained in the section of this
preamble addressing the proposed addition in Sec. 653.501(a)(4), the
Department is proposing this requirement to protect workers that are
referred to employers through the ARS by ensuring that the ARS is not
used to place a worker with an employer that has failed to comply with
its obligation(s) as an employer of foreign workers.
The Department proposes to amend Sec. 658.501(b) to correct an
error in the existing regulatory text, which improperly references
Sec. 658.501, instead of Sec. 658.502. Specifically, the regulatory
text currently provides that SWA officials may discontinue services
immediately if, in the judgment of the State Administrator, exhaustion
of the administrative procedures set forth in Sec. 658.501(a)(1)
through (7) would cause substantial harm to a significant number of
workers. The reference to paragraphs (a)(1) through (7) of Sec.
685.501 appears to have been made in error, because Sec. 658.501 does
not set forth administrative procedures but rather the bases for
discontinuation of services. Section 658.502, by contrast, sets forth
the process by which SWAs must generally follow when discontinuing the
provision of ES services. Accordingly, the Department proposes to
replace the cross reference in 658.501(b) to 658.501(a)(1) through (7)
with a cross reference to Sec. 658.502, which will clarify that the
administrative procedures that must otherwise be exhausted are set
forth in Sec. 658.502. This revision is necessary to clarify when a
SWA official may discontinue services immediately.
The Department proposes to amend Sec. 658.501(c) to correct an
error in the regulatory text like the cross-referencing error in Sec.
658.501(b). This section incorrectly references the bases on which a
SWA may discontinue services to an employer in Sec. 658.501(a)(1)
through (8), instead of the procedures to discontinue such services set
forth in Sec. 658.502. Accordingly, the Department proposes to replace
the reference to Sec. 658.501(a)(1) through (8) with a cross reference
to Sec. 658.502.
The Department proposes to amend Sec. 658.502(a)(4) to add that
where a SWA's decision to discontinue services is based on the fact
that the employer is currently debarred or disqualified from
participating in one of the Department's foreign labor certification
programs, the SWA must specify the time period for which the employer
is debarred or disqualified. The proposed revision would further
specify that the employer must be notified that all ES services will be
terminated in 20 working days unless, within that time, the employer
provides adequate evidence that the Department's disbarment or
disqualification is no longer in effect or will terminate before the
employer's anticipated date of need. Similar to the proposed revision
to Sec. 658.501(a)(4) discussed previously, the revisions proposed
here correspond to the proposed addition in Sec. 653.501(a)(4), which
would require ES staff to consult the Department's OFLC and Wage and
Hour Division debarment lists prior to placing a job order into
intrastate or interstate clearance, and to initiate discontinuation of
services pursuant to this subpart if the employer requesting access to
the clearance system is currently debarred or disqualified from
participating in one of the Department's foreign labor certification
programs.
3. 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 proposes to amend 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), which does not contain
self-monitoring requirements. This proposed revision will clarify the
location of self-monitoring requirements for readers.
The Department proposes to amend the introductory text of Sec.
658.602(n) to replace the phrase ``in the course of'' with the word
``during'' for purposes of clarity.
The Department proposes to amend 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. Using the defined term will
make the regulatory text more clear regarding which staff it
references.
The Department proposes to amend 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.
The Department proposes to amend 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 (8).
Section 658.603 Employment and Training Administration Regional Office
Responsibility
The Department proposes to amend Sec. 658.603(d)(7) to replace
uses of ``job order'' with ``clearance order.'' This change will make
the provision conform with the proposed changes to the definition of
clearance order in Sec. 651.10. The change will also clarify that
field checks should only be conducted on orders that have been cleared
for intrastate and/or interstate recruitment, not including local job
[[Page 23723]]
orders. The Department also proposes to remove the word ``random'' from
the requirement for the RA to conduct field checks. Under the proposed
revision, the selection of agricultural work sites 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 proposes to add 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 proposes to amend 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 replace 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 OSHA, WHD, EEOC, CRC, and other organizations offering farmworker-
related information). The proposed regulatory text removes the
requirement for training within the first 3 months of an RMA's tenure
because RMAs must participate in all trainings necessary to learn and
maintain competencies for the role. The proposed regulatory text
clarifies that training attendance is required beyond the first 3
months of an RMA's tenure. The proposed regulatory text regarding
maintaining competencies specifically aligns with the Department's
training requirements for SMAs as well as E.O. staff training
requirements, which provide a positive example for RMA training.
The Department proposes to amend Sec. 658.603(p)(1) to replace
``workers'' with ``staff.'' This change would implement the defined
term of outreach staff to clarify the type of staff to which the
provision refers.
The Department proposes to amend 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. This
change will clarify that RMAs may conduct targeted field checks where
necessary, allowing the Department to respond to known or suspected
compliance issues, in addition to random field checks.
4. Subpart H--Federal Application of Remedial Action to State Workforce
Agencies
Section 658.702 Assessment and Evaluation of Program Performance Data
The Department proposes to amend 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. The notification required by these revisions
would improve the RMA's ability to effectively perform all required
duties.
Section 658.704 Remedial Actions
The Department proposes to amend Sec. 658.704(f)(2) to require
that copies of the RA's notification to the SWA of decertification
proceedings must be sent to the RMA and the NMA. The existing
regulatory text only requires that one copy be sent to the NMA. This
revision is necessary because the RMA needs to be aware of all issues
that relate to MSFWs in the regional office.
The Department proposes to amend 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. This is a clarifying edit, as
Sec. 658.704(c) already provides a SWA the opportunity to request a
hearing under these circumstances. The Department additionally proposes
to add 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.
IV. Rulemaking Analyses and Notices
A. Executive Orders 12866 (Regulatory Planning and Review) and 13563
(Improving Regulation and Regulatory Review)
Under Executive Order (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 3(f) of E.O.
12866 defines a ``significant regulatory action'' as an action that is
likely to result in a rule that: (1) Has an annual effect on the
economy of $100 million or more, or adversely affects in a material way
a sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local, or tribal
governments or communities (also referred to as economically
significant); (2) creates serious inconsistency or otherwise interferes
with an action taken or planned by another agency; (3) materially
alters the budgetary impacts of entitlement grants, user fees, or loan
programs, or the rights and obligations of recipients thereof; or (4)
raises novel legal or policy issues arising out of legal mandates, the
President's priorities, or the principles set forth in the E.O. Id.
This proposed rule is a significant regulatory action, although not an
economically significant regulatory action, under sec. 3(f) of E.O.
12866. Accordingly, OMB has reviewed this proposed 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 proposed rule would result in
costs, transfer payments, and benefits for State governments and
agricultural employers. The costs of the proposed rule would include
rule familiarization and additional information collection for State
governments, as well as transition costs such as recruitment, training,
and technology expenses for the four States (i.e., Colorado, Delaware,
Massachusetts, and Michigan) that currently have non-State-merit staff
providing some labor exchange services and would need to transition to
State merit staff for the provision of all labor exchange services.\13\
---------------------------------------------------------------------------
\13\ Since the 2020 Final Rule, some States expressed an
interest in using non-merit staff. Delaware began using this
flexibility and currently uses two contract staff for ES services.
Missouri has an approved WIOA State Plan modification to utilize
non-State-merit staff.
---------------------------------------------------------------------------
The transfer payments would include the changes in wages and fringe
benefits for staff providing Wagner-Peyser Act
[[Page 23724]]
ES labor exchange services in the four States that currently have non-
State-merit staff providing ES labor exchange services: Colorado,
Delaware, Massachusetts, and Michigan.
The benefits of the merit-staffing provisions in the proposed rule
would 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 also
is proposing amendments to the regulations that govern labor exchange
services provided to MSFWs, the Monitor Advocate System, and the
Complaint System. These amendments would remove redundancies, clarify
requirements, and improve equity and inclusion for MSFWs in the ES
system.
1. Costs
The Department anticipates that the proposed rule would 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
\14\ assumes that the changes introduced by the rule would be reviewed
by Human Resources Managers (SOC code 11-3121) employed by SWAs. The
Department anticipates that it would take a Human Resources Manager an
average of 1 hour to review the rule.
---------------------------------------------------------------------------
\14\ 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 (OEWS) data show that the median hourly wage of
State government Human Resources Managers is $43.75.\15\ The Department
used a 61 percent benefits rate \16\ and a 17 percent overhead
rate,\17\ so the fully loaded hourly wage is $77.88 [= $43.75 + ($43.75
x 61%) + ($43.75 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 $4,439 (= $77.88 x 1 hour x 57 jurisdictions).
---------------------------------------------------------------------------
\15\ BLS, ``Occupational Employment and Wage Statistics,
National Industry-Specific Occupational Employment and Wage
Estimates, NAICS 999200,'' SOC Code 11-3121, May 2020, <a href="https://www.bls.gov/oes/current/naics4_999200.htm">https://www.bls.gov/oes/current/naics4_999200.htm</a> (last visited Aug. 2,
2021).
\16\ BLS, ``National Compensation Survey, Employer Costs for
Employee Compensation,'' <a href="https://www.bls.gov/ncs/data.htm">https://www.bls.gov/ncs/data.htm</a> (last
visited Aug. 2, 2021). For State and local government workers, wages
and salaries averaged $32.72 per hour worked in 2020, while benefit
costs averaged $20.09, which is a benefits rate of 61 percent.
\17\ Cody Rice, U.S. Environmental Protection Agency, ``Wage
Rates for Economic Analyses of the Toxics Release Inventory
Program,'' June 10, 2002, <a href="https://www.regulations.gov/document/EPA-HQ-OPPT-2014-0650-0005">https://www.regulations.gov/document/EPA-HQ-OPPT-2014-0650-0005</a> (last visited Aug. 2, 2021).
---------------------------------------------------------------------------
b. Transition Costs
Four States would potentially incur one-time costs associated with
the proposal to require all ES labor exchanges services to be provided
by State merit staff. Colorado, Delaware, Massachusetts, and Michigan
currently have some non-State-merit staff who provide labor exchange
services, and these 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 may
experience nonquantifiable transition costs associated with service
interruptions during the time period in which the State is making staff
changes to comply with the provisions of this proposed rule.
The Department used a survey to ask the four States to estimate
these potential expenses. One State anticipates that transition
expenses would be minimal unless one of the local one-stop centers goes
through an ``upheaval'' due to the proposed change. The State explained
that the SWA provides employee training, and this would not change
under the provisions in the proposed rule. Moreover, technology costs
have always been shared costs, and recruitment is conducted by local
management teams on an on-going basis. The State noted, however, that
there would be significant disruptions in the workforce areas that use
non-State merit-staffed employees to provide ES labor exchange
services; those areas constitute 25 percent of the State's workforce
areas. Hiring State merit-staffed employees in those areas would take
months; moreover, the State would need to add State supervision and
engage in union negotiations.
A second State estimated that the transition costs related to
training and technology would be minimal. However, obtaining additional
FTE State merit-staffed employees would generate nonquantifiable costs.
The State explained that the process would entail requesting and
justifying new positions, preparing and submitting a budget request,
posting the positions, interviewing candidates, checking references,
and onboarding new hires. The State estimated that the process would
take at least 12 to 18 months.
The Department is not able to quantify the transition costs to the
four States due to the lack of data. The Department is seeking
additional input from the four States on their potential transition
expenses such as recruitment, training, or technology costs, as well as
costs related to the State budgeting process. The Department is also
seeking input on the potential costs associated with service
interruptions during the time period in which the State is making staff
changes to comply with the provisions of this proposed rule.
c. Information Collection Costs
IC costs represent direct costs to States associated with the
proposed information collection requests (ICRs) under this proposed
rule.
The first ICR pertains to the proposed requirement that SWA Wagner-
Peyser programs document Participant Individual Record Layout (PIRL)
data element 413 for all reportable individuals. The Department assumes
that this provision would 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 would need to reprogram their ES registration systems
to ask MSFW status (PIRL 413) questions earlier in the registration
process. The Department assumes reprogramming would cost an average of
$4,000 per jurisdiction,\18\ 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 would 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 $26.85 for educational, guidance, and career
counselors and advisors (SOC code 21-1012) employed by State
governments (NAICS 999200).\19\ The Department used a 61-percent
benefits rate and a 17-percent overhead rate, so the fully loaded
hourly wage is $47.79 [= $26.85 + ($26.85 x 61%) + ($26.85 x 17%)].
Assuming ES staff assist in registering half of the 10.2 million
reportable individuals (based on the average for Program Years 2018,
2019, and 2020), the annual cost is
[[Page 23725]]
estimated at $8,129,913 (= 10,207,047 reportable individuals x 50% x 2
minutes x $47.79 per hour). For the annual burden on SMAs, the
Department anticipates that it would 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 $36.25 for social and
community service managers (SOC code 11-9151) employed by State
governments (NAICS 999200).\20\ The Department used a 61-percent
benefits rate and a 17-percent overhead rate, so the fully loaded
hourly wage is $64.53 [= $36.25 + ($36.25 x 61%) + ($36.25 x 17%)].
Therefore, the annual cost is estimated at $14,713 (= 57 SMAs x 4 hours
per year x $64.53 per hour).
---------------------------------------------------------------------------
\18\ Anecdotal evidence from States indicates a range of $2,000
to $6,000 to add one yes/no question to an existing data collection.
\19\ BLS, ``Occupational Employment and Wage Statistics,
National Industry-Specific Occupational Employment and Wage
Estimates, NAICS 999200, SOC 21-1012.'' <a href="https://www.bls.gov/oes/current/naics4_999200.htm">https://www.bls.gov/oes/current/naics4_999200.htm</a>.
\20\ BLS, ``Occupational Employment and Wage Statistics,
National Industry-Specific Occupational Employment and Wage
Estimates, NAICS 999200, SOC 11-9151.'' <a href="https://www.bls.gov/oes/current/naics4_999200.htm">https://www.bls.gov/oes/current/naics4_999200.htm</a>.
---------------------------------------------------------------------------
The second ICR pertains to the proposed 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 would 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 $47.79 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 $406,454 (= 14,580
clearance orders x 35 minutes x $47.79 per hour).
The third ICR pertains to the proposed changes associated with the
Migrant and Seasonal Farmworker Monitoring Report and Complaint/
Apparent Violation Form. The Department assumes that this provision
would 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 would 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 $64.53 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 $1,238,976 (= 2,400 ES Managers x 8 hours
per year x $64.53 per hour). For the annual burden on SMAs, the
Department anticipates that it would 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 $64.53 for social and community service managers (SOC code 11-
9151) employed by State governments (NAICS 999200). Therefore, the
annual cost is estimated at $11,035 (= 57 SMAs x 3 hours per year x
$64.53 per hour).
The fourth ICR pertains to the proposal to require the delivery of
all ES labor exchanges services by State merit staff. The Department
proposes to create a new ICR that would 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. 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.
In total, the proposed rule is expected to have first-year IC costs
of $10.0 million in 2020 dollars. Over the 10-year analysis period, the
annualized costs are estimated at $9.8 million at a discount rate of 7
percent in 2020 dollars.
2. Transfer Payments
According to OMB Circular A-4, transfer payments are monetary
payments from one group to another that do not affect total resources
available to society. The transfer payments for this proposed rule are
the transfer payments associated with employee wages and fringe
benefits.
The 2020 Final Rule gave all States and territories more staffing
options for delivering labor exchange services. Four States (Colorado,
Delaware, Massachusetts, and Michigan) currently have non-State-merit
staff providing labor exchange services, and others have expressed
interest in such an arrangement. This proposed rule would require all
ES labor exchange services to be provided by State merit-staffed
employees; therefore, these four States would need to restaff (along
with other States that could implement non-State-merit staffing before
this NPRM is finalized) 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.
To estimate the transfer payments, the Department surveyed the four
States and asked them to provide the total number of full-time
equivalent (FTE) hours provided by State merit staff and non-State-
merit staff dedicated to delivering ES services, as well as the
occupation (or position title) and annual salary for all employees
included in the FTE calculations. Delaware, Massachusetts, and Michigan
provided data via email, while Colorado responded via telephone.
Delaware reported that it currently has two FTE non-State, merit-
staffed employees delivering ES services: one FTE management analyst
with an annual salary of $59,000 and one FTE migrant farm outreach
worker with an annual salary of $48,000. The Department assumes that
Delaware would replace the two FTE non-State, merit-staffed employees
with one State merit-staffed management analyst (SOC code 13-1111) and
one State merit-staffed community and social service specialist (SOC
code 21-1099). To calculate the change in wage costs for Delaware, the
Department used OEWS data to estimate the median annual wages for
management analysts and community and social service specialists
employed by the State of Delaware. The median annual wage for
management analysts is $61,840, while the median annual wage for
community and social service specialists is $43,910.\21\
---------------------------------------------------------------------------
\21\ BLS, OEWS data for government workers by St
[…truncated; see source link]Indexed from Federal Register on April 20, 2022.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.