[Federal Register: August 25, 2000 (Volume 65, Number 166)]
[Notices]
[Page 51983-51990]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25au00-138]
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Part V
Department of Labor
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Office of the Secretary
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State Guidance for Developing Methods of Administration Required by
Regulations Implementing Section 188 of the Workforce Investment Act of
1998; Notice
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DEPARTMENT OF LABOR
Office of the Secretary
State Guidance for Developing Methods of Administration (MOA)
Required by Regulations Implementing Section 188 of the Workforce
Investment Act of 1998 (WIA)
AGENCY: Office of the Secretary.
ACTION: Notice.
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SUMMARY: The purpose of this notice is to provide interested parties
with the final approved Guidance for use by States in submitting their
Methods of Administration as required by 29 CFR part 37. That part
implements the nondiscrimination and equal opportunity provisions of
the Workforce Investment Act of 1998.
FOR FURTHER INFORMATION CONTACT: Ms. Annabelle T. Lockhart, Director,
Civil Rights Center, U.S. Department of Labor, 200 Constitution Ave.,
N.W., Room N-4123 FPB, Washington, DC 20210, telephone number (202)
219-8927 (voice)(this is not a toll-free number), or (800) 326-2577
(TTY/TDD).
SUPPLEMENTARY INFORMATION: The Workforce Investment Act of 1998 (WIA),
Public Law 105-220 (August 7, 1998), provides the framework for a
reformed national workforce preparation and employment system designed
to meet the needs of the nation's employers, its job seekers, and those
who want to further their careers. While WIA makes many programmatic
changes in the workforce development system authorized under the Job
Training Partnership Act of 1982 (JTPA), one constant has been the
prohibition against discrimination. The nondiscrimination and equal
opportunity provisions of JTPA (section 167) prohibit discrimination
against applicants, beneficiaries and employees on the bases of race,
color, national origin, age, disability, sex, religion, and political
affiliation or belief. Further, section 167 prohibits discrimination
against beneficiaries on the bases of citizenship and participation in
JTPA. The nondiscrimination and equal opportunity provisions of WIA
(section 188) prohibit discrimination against applicants, beneficiaries
and employees on the same bases.
Methods of Administration (MOA), designed to assure the Secretary
of Labor that State programs financially assisted by the Department
operate in a nondiscriminatory manner, have been required of States
since 1984. This requirement was codified when, on January 15, 1993,
the Department of Labor issued 29 CFR part 34, the regulations that
implement section 167 of JTPA. (See 29 CFR 34.33.)
Section 188(e) of WIA requires the Secretary to issue regulations
implementing section 188. An interim final rule implementing that
section was published on November 12, 1999, at 29 CFR part 37. As with
part 34, part 37 includes the requirement that States develop,
implement and maintain, for each of their State programs, an MOA. (See
29 CFR 37.54 and 37.55.) The MOA standards contained in part 37 are
substantially the same as those contained in part 34. States that have
faithfully implemented and maintained their MOAs under JTPA will find
that the time and effort needed to update their MOA to meet WIA
requirements will be minimal.
Signed at Washington, D. C., this 21st day of August, 2000.
Alexis M. Herman,
Secretary of Labor.
ATTACHMENT: State Guidance for Developing Methods of Administration
(MOA) Required by Regulations Implementing Section 188 of the
Workforce Investment Act of 1998 (WIA)
OMB Control No. 1225-0077
Expires January 31, 2003
The regulations that implement the nondiscrimination and equal
opportunity provisions of the Workforce Investment Act of 1998 (WIA),
published at 29 CFR part 37, require that each Governor establish and
adhere to a Methods of Administration (MOA) for his/her State programs.
This document provides Guidance for Governors and States in meeting the
regulatory requirements regarding MOAs.
An MOA is a document that describes the actions an individual State
will take to ensure that its WIA Title I-financially assisted programs,
activities, and recipients are complying, and will continue to comply,
with the nondiscrimination and equal opportunity requirements of WIA
and its implementing regulations. States were first required to prepare
and submit MOAs in 1984, under the Job Training Partnership Act (JTPA).
The requirement was continued in 1993, under the regulations
implementing the nondiscrimination and equal opportunity provisions of
JTPA. The JTPA MOA requirements were set forth in 29 CFR 34.33. The
form and content of the MOAs required under 29 CFR part 37 remain
substantially the same as those of the MOAs required under JTPA.
Title 29 CFR 37.54(a) provides that each Governor must establish
and maintain an MOA for State programs. 29 CFR 37.54(d) describes the
required elements of an MOA. Finally, 29 CFR 37.55 addresses
requirements related to submitting and updating the MOA.
By submitting an MOA, the Governor agrees to fully follow its
provisions. Failure to do so may result in a finding of noncompliance.
See 29 CFR 37.65(a).
This Guidance specifically discusses the requirements of 29 CFR
37.54(b) and 37.55, and is intended to explain, not to add to, the
requirements contained in those regulatory provisions. The Guidance is
based upon materials the Civil Rights Center (CRC) prepared in 1993 to
train Equal Opportunity (EO) Officers regarding the requirements of
MOAs under JTPA. This Guidance does not create new legal requirements
or change current legal requirements. Instead, it reflects the view of
CRC and is intended to serve as a basic resource document on CRC-
administered laws. The legal requirements related to nondiscrimination
and equal opportunity that apply to recipients of financial assistance
under WIA are contained in the statutes and regulations cited in this
Guidance. Every effort has been made to ensure that the information
contained in the Guidance is accurate and up to date.
I. Guidance on Meeting the Requirements of 29 CFR 37.54(b) Section
37.54(b) Requires That Each MOA Shall be:
{time} In writing, addressing each requirement of 29 CFR 37.54(d) with
narrative and documentation;
{time} Reviewed and updated as required by 29 CFR 37.55; and
{time} Signed by the Governor.
The MOA should be organized in the nine elements listed below, with
both a narrative and a documention section for each element.
Section A. Narrative
The first section of each element should be a narrative description
of how the State and its recipients, as that term is defined in 29 CFR
37.4, are meeting and will continue to meet the requirements of part
37. The narrative should be specific. CRC regards the narrative as the
more important section, since it contains the description of what the
State and its recipients are doing and will continue to do to fulfill
their obligations under WIA section 188 and 29 CFR part 37.
Section B. Documentation
The second section of each element should include documentation
that shows how the State is carrying out that element of the MOA. When
reviewing
[[Page 51985]]
the adequacy of and/or performance under an MOA, CRC may request
additional supporting documentation pursuant to 29 CFR 37.65.
Element 1. Designation of State-and local-level Equal Opportunity (EO)
Officers (29 CFR 37.54(d)(1)(ii))
In this element, the State should address how it and its recipients
are complying and will continue to comply with the requirements of 29
CFR 37.23 through 37.28. The intent of this section is to ensure that
any individual the recipient appoints as EO Officer has the education,
training and experience, and is provided the necessary ongoing training
and qualified staff, to perform his or her duties assigned under 29 CFR
part 37. Additionally, the EO Officer should not be in a position that
would constitute, or appear to constitute, a conflict of interest.
Further, the State should ensure that he or she reports, on EO matters,
directly to the appropriate official in the organization (see 29 CFR
37.25(e). In summary, any individual appointed as EO Officer should
have the skill, ability, knowledge and authority to properly oversee
and direct the EO program to which that individual has been assigned.
(a) The narrative section of this element should identify, at a
minimum:
{time} Each individual designated as a State-level Equal Opportunity
Officer and each individual designated as a local-level Equal
Opportunity Officer, by name, position title, business address
(including e-mail address if applicable) and telephone number
(including TDD/TTY number). (See 29 CFR 37.23.)
{time} The level within the organization (described in such terms as
the individual's authority and position relative to the top of the
hierarchy) occupied by the EO Officer(s). (See 29 CFR 37.24.)
{time} The duties of the EO Officer(s), and the manner in which those
duties are carried out. (At a minimum, duties assigned to the EO
Officer must include those listed in 29 CFR 37.25.) Describe both the
EO duties, responsibilities and activities associated with the
implementation of 29 CFR part 37, and all other duties,
responsibilities and activities.
Note: The EO Officer may not be assigned duties,
responsibilities or activities that would constitute a conflict of
interest or the appearance of such a conflict; see 29 CFR 37.24.)
{time} The manner in which the recipient makes the identity of the EO
Officer(s) known to applicants, registrants, eligible applicants/
registrants, participants, employees, and applicants for employment, as
well as interested members of the public. (See 29 CFR 37.26.)
{time} The level of staff and other resources available to State- and
local-level EO Officer(s) to ensure that WIA Title I-financially
assisted programs and activities operate in a nondiscriminatory way.
(See 29 CFR 37.26(c).)
{time} The State's plan for ensuring that State- and local-level EO
Officers and their staffs are sufficiently trained to maintain
competency. (See 29 CFR 37.26(d).)
{time} The identity, by name, title and organization, of the
individual to whom each State- and local-level EO Officer reports on
equal opportunity matters.
{time} A description of the professional and support staffing levels
and resources provided to each State- and local-level EO Officer to
assist him or her in ensuring compliance with WIA section 188 and part
37.
{time} The type and level of training each State- and local-level EO
Officer has received and will receive to ensure that he or she is
capable of fulfilling his or her responsibilities as an EO Officer.
{time} The means by which the State makes public the names, position
titles and telephone numbers (including TDD/TTY numbers) of each State-
and local-level EO Officer.
{time} A description of any duties, other than WIA equal opportunity
responsibilities, assigned to each State- and local-level EO Officer.
(b) Documentation for this element to be submitted as part of the
MOA should include, but need not be limited to:
{time} Examples of each document (e.g., notices, directives,
memoranda, letters to community groups, flyers, and relevant pages of
handbooks and manuals) that communicates, either internally or
externally, the EO Officer's name and other required information to
registrants, applicants, eligible applicants/registrants, participants,
applicants for employment, employees, and interested members of the
public.
{time} Examples of each communication (e.g., directives) that
instructs the State's recipients as to the actions they are to take to
comply with 29 CFR 37.23 through 28 with regard to EO Officers.
{time} A copy of the State EO Officer's position description, showing
those duties specifically related to WIA equal opportunity activities,
and other duties.
{time} A representative sample of local-level EO Officer position
descriptions. NOTE: If a single, standard position description has been
adopted for all local-level EO Officers, then a single copy of that
description is sufficient.
{time} Copies of organization chart(s) showing the organizational
location of each EO Officer.
{time} The identity of any staff who perform duties that support WIA
EO activities (e.g., clerical, data analysis), a position description
for each such staff member, and average hours per week spent on EO-
related activities by each such staff member (if positions are not
devoted to WIA equal opportunity activities on a full-time basis).
{time} EO budget and source of funds.
{time} Summary of EO-related training that staff (EO staff and others)
have received and a schedule of EO training to be delivered in the
future. This may be training delivered by the State- or local-level EO
Officer to recipient staff, or training delivered to EO Officers or
recipient staff by outside sources, such as CRC.
Element 2. Notice and Communication (29 CFR 37.54(d)(1)(iii))
In this element, the State should address how it and its recipients
are complying and will continue to comply with the requirements of 29
CFR 37.29 through 37.36. States should ensure the establishment of a
notice and communication system that makes all registrants, applicants,
eligible applicants/registrants, applicants for employment, employees
and interested members of the public aware of both the recipient's
obligation to operate its programs and activities in a
nondiscriminatory manner, and the extent of the rights of members of
these groups to file complaints of discrimination.
(a) The narrative section of this element should describe, at a
minimum:
{time} The methods and frequency of dissemination of the notice,
including initial dissemination. (See 29 CFR 37.29.)
{time} The means by which the notice is made available to individuals
with disabilities. (See 29 CFR 37.31(b).)
{time} The means by which the State ensures that recipients post the
notice. (See 29 CFR 37.33.)
{time} The means by which a copy of the notice is placed in the
participant's file (see 29 CFR 37.31(a)), or where
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the files are maintained electronically, how the requirement of
37.31(a) is and will continue to be met.
{time} The means by which the State ensures that recruitment brochures
and other materials routinely made available to the public include the
statements ``equal opportunity employer/program'' and ``auxiliary aids
and services are available upon request to individuals with
disabilities.'' (See 29 CFR 37.34(a).)
{time} Where a telephone number is included on recruitment brochures
and other materials, the means by which the State ensures that the
materials indicate a TDD/TTY number or provide for an equally effective
means of communication with individuals with hearing impairments. (See
29 CFR 37.34(a).)
{time} The means by which program-related information is published or
broadcast in the news media (e.g., publication of Requests for
Proposal) and the means by which the State ensures that publications/
broadcasts state that the program is an equal opportunity employer/
program and that auxiliary aids and services are available upon request
to individuals with disabilities. (See 29 CFR 37.34(b).)
{time} The manner in which and extent to which information in
languages other than English is provided, and the manner in which the
State ensures that persons of limited English-speaking ability have
access to its programs and activities on a basis equal to that of those
who are proficient in English. (See 29 CFR 37.35.)
{time} The manner in which and extent to which orientations for
registrants, applicants, eligible applicants/registrants, employees,
applicants for employment, and members of the public include a
discussion of the rights of such persons under WIA section 188 and 29
CFR part 37. (See 29 CFR 37.36.)
{time} The steps taken to ensure that communications with individuals
with disabilities are as effective as communications with others. (See
29 CFR 37.29(b).)
{time} The process the State has used and will continue using to
develop and communicate policy and conduct training regarding
nondiscrimination and equal opportunity. (See 29 CFR 37.25(c), and
37.54(d)(2)(iii), and 37.54(d)(2)(vi).)
(b) Documentation for this element to be submitted as part of the
MOA should include, but need not be limited to:
{time} A copy of each communication that instructs the State's
recipients on how they are to comply with the requirements of 37.29
through 37.36 regarding notice and communication.
{time} A copy of the posted notice required by 29 CFR 37.29 and 37.30.
{time} A copy of any checklist of the contents of participant and
employee files, indicating that the notice requirement has been met.
(See 29 CFR 37.31(a)(4).)
{time} A copy of any orientation agendas that include, as an agenda
item, a discussion of equal opportunity and nondiscrimination under WIA
section 188 and 29 CFR part 37. (See 29 CFR 37.36.)
{time} A copy of each item of material, distributed at orientation
sessions, that addresses the rights of individuals under WIA section
188 and 27 CFR part 37. (See 29 CFR 37.36.)
{time} Copies of agendas (and a list of dates) of past and proposed EO
policy briefings and EO training. (See 29 CFR 37.25(f), 37.26(d) and 29
CFR 37.54(d)(2)(vi).)
{time} A copy of each policy issuance or instruction that relates to
WIA section 188 or 29 CFR part 37. (See 29 CFR 37.25(c), 37.54(d)(iii),
29 CFR 54(d)(vi) and 37.54(d)(viii).)
{time} A copy of each recruitment brochure and other item of material
distributed to the public by a WIA Title I-financially assisted
recipient, showing that each includes:
{time} The statements ``equal opportunity employer/program'' and
``auxiliary aids and services are available upon request to individuals
with disabilities''; and
{time} The telephone numbers for TDD/TTY access and/or telephone relay
services. (See 29 CFR 37.34(a).)
Element 3. Review assurances, job training plans, contracts, and
policies and procedures (29 CFR 37.54(d)(1)(i) and (d)(2)(i), (iii) and
(iv))
In this element, the State should address how it and its recipients
are complying and will continue to comply with the requirements of 29
CFR 37.20 and 37.54(d)(1)(i) and (d)(2)(i), (iii) and (iv) regarding
the review of assurances, job training plans, contracts, and policies
and procedures. Additionally, this element should address the
procedures the State and its recipients are following and will continue
to follow in assessing the ability of grant applicants, if funded, or
training providers, if declared eligible, to comply with WIA section
188 and 29 CFR part 37.
(a) The narrative section of this element should describe, at a
minimum, how the State ensures that:
{time} Each grant applicant, and each training provider seeking
eligibility, includes in its application for financial assistance under
Title I of WIA the required EO assurance. (See 29 CFR 37.20(a)(1).)
{time} The required assurance is incorporated into each grant,
cooperative agreement, contract, or other arrangement whereby Federal
financial assistance under Title I of WIA is made available. (See 29
CFR 37.20(a)(2).) NOTE: 29 CFR 37.20(a)(2) provides that the assurance
may be incorporated by reference into these documents.
{time} Each grant applicant, and each training provider seeking
eligibility, is able to provide programmatic and architectural
accessibility for individuals with disabilities. (See subpart C of 29
CFR part 32.)
{time} Job training plans, contracts, assurances, and other similar
agreements entered into by recipients are both nondiscriminatory and
contain the required language regarding nondiscrimination and equal
opportunity. (See 29 CFR 37.54(b)(2)(iv).)
{time} State- and local-level policy issuances, or issuances from
other recipients, are not discriminatory either in intent or effect.
(See 29 CFR 37.54(d)(2)(iii).)
{time} Policies on WIA Title I nondiscrimination and/or equal
opportunity issues are developed and implemented in a timely manner.
(b) Documentation for this element to be submitted as part of the
MOA should include, but need not be limited to:
{time} A copy of each directive that instructs individuals at the
State and/or local level who are responsible for reviewing assurances,
job training plans, contracts, and policies and procedures as to the
requirements of, and their duties under, 29 CFR 37.20, 37.54(d)(1)(i),
and (d)(2)(i), (iii) and (iv).
{time} Copies of assurance pages of plans, contracts, and other
agreements.
{time} Copies of memos or directives to contract managers advising
them to include the required assurance in the appropriate documents.
{time} Copies of checklists or other guidelines used by contract
specialists, attorneys, or others who review contracts and agreements
that indicate that nondiscrimination
[[Page 51987]]
and equal opportunity are considered in the evaluation of such
documents.
{time} A copy of procedures developed to review the ability of grant
applicants, and training providers seeking eligibility, to comply with
the nondiscrimination and equal opportunity provisions of WIA and 29
CFR part 37.
{time} A copy of each WIA EO issuance (e.g., the general EO policy
statement, the policy statement on sexual harassment and the policy
statement on religious accommodation).
Element 4. Universal Access (29 CFR 37.54(d)(1)(vi)
In this element, the State should address how it and its recipients
are complying and will continue to comply with the requirements of 29
CFR 37.42 relating to the provision of universal access to programs and
activities.
(a) The narrative section of this element should describe, at a
minimum, how:
{time} The State has communicated the obligation of recipients
(including, e.g., LWIAs, one-stop operators and service providers) to
make efforts (including outreach) to broaden the composition of the
pool of those considered for participation or employment in their
programs and activities in an effort to include members of both sexes,
of the various racial and ethnic groups and of various age groups, as
well as individuals with disabilities.
{time} Recipients have made and will continue to make efforts to
broaden the composition of those considered for participation or
employment in their programs and activities, as described above.
{time} The State monitors and evaluates the success of recipient
efforts to broaden the composition of those considered for
participation and employment in their programs and activities, as
described above.
(b) Documentation for this element to be submitted as part of the
MOA should include, but need not be limited to:
{time} Copies of targeting, outreach and recruitment plans.
{time} Criteria for determining priority of service.
{time} Copies of plans for One-Stop delivery systems to expand the
pool of those considered for participation or employment in their
programs and by race/ethnicity, sex, disability status, and age.
{time} Samples of brochures, posters, public-service announcements,
computer screens displaying related information, and other publicity
materials.
Element 5. Compliance with section 504 of the Rehabilitation Act of
1973, as amended and 29 CFR part 37 (29 CFR 37.54(d)(2)(v))
In this element, the State should address how it and its recipients
are complying and will continue to comply with the requirements of the
disability related requirements of WIA section 188; Section 504 of the
Rehabilitation Act of 1973, as amended; and their implementing
regulations, including but not limited to 29 CFR 37.7, 37.8, and 37.9
and Subparts B and C of 29 CFR Part 32.
(a) The narrative section of this element should describe, at a
minimum how the State ensures that recipients:
{time} Meet their obligation not to discriminate on the basis of
disability. (See 29 CFR 32.12 (a), 32.26, and 37.7.)
{time} Provide reasonable accommodation for individuals with
disabilities (See 29 CFR 32.13 and 29 CFR 37.8);
{time} Provide reasonable modification of policies, practices and
procedures, as required (See 29 CFR 37.8);
{time} Provide architectural accessibility for individuals with
disabilities (See 29 CFR 32.28); and
{time} Provide programmatic accessibility for persons with
disabilities (See 29 CFR 32.27).
{time} Provide for and adhere to a schedule to evaluate job
qualifications to ensure that the qualifications do not discriminate on
the basis of disability. (See 29 CFR 32.14.)
{time} Limit preemployment/employment medical inquiries to those
permitted by and in accordance with WIA section 188, Section 504, the
Americans with Disabilities Act of 1990, and their implementing
regulations. (See 29 CFR 32.15.)
{time} Ensure the confidentiality of medical information provided by
registrants, applicants, eligible applicants/registrants, participants,
employees, and applicants for employment. (See 29 CFR 32.15.)
{time} Administer their WIA Title I-financially assisted programs and
activities so that each individual with a disability participates in
the most integrated setting appropriate to that individual. (See 29 CFR
37.7(d).)
{time} Are able to communicate with persons with disabilities as
effectively as with others. (See 29 CFR 37.9.)
(b) Documentation for this element to be submitted as part of the
MOA should include, but need not be limited to:
{time} Copies of policies/procedures issued by the State or any of its
WIA Title I recipients, such as:
{time} The procedures by which persons with disabilities are assured
of participation in programs and activities in as integrated setting as
possible;
{time} The procedures by which the availability of reasonable
accommodation and reasonable modification are made known to persons
with disabilities, and the procedures for making and resolving such
requests;
{time} The procedures by which the State ensures that communication
with persons with disabilities is as effective as communication with
others; and
{time} The procedures by which the State ensures that the programs and
activities operated by its WIA Title I recipients are architecturally
and programmatically accessible to individuals with disabilities.
{time} Any evaluation conducted to determine the programmatic or
architectural accessibility of a WIA Title I-financially assisted
program or activity and the status of any corrective actions taken by
the recipient involved.
{time} Copies of publications and agendas for any training conducted
for recipient staff that is intended to raise awareness of disability
issues.
Element 6. Data and Information Collection and Maintenance (29 CFR
37.54(d)(1)(iv) and (vi))
In this element, the State should address how it and its recipients
are complying and will continue to comply with the requirements of 29
CFR 37.37 through 37.41 related to data and information collection and
maintenance. The State must ensure that a data and information
collection and maintenance system for its WIA Title I-financially
assisted State programs is established and maintained. (See 29 CFR
37.53.)
The most important purposes of the equal opportunity data and
information collection and maintenance system required by 29 CFR part
37 are to assist CRC and those assigned by the State (e.g., State- and/
or local-level EO Officers) in:
{time} Monitoring recipient equal opportunity performance;
{time} Identifying instances or areas of discrimination; and
{time} Identifying individuals or groups of individuals who have been
[[Page 51988]]
discriminated against on a basis prohibited by WIA section 188 and 29
CFR part 37.
A vital element of any system designed to fulfill these purposes is
a way to permit the reviewer to correlate aggregate data to individual
records. For example, 29 CFR part 37 requires that recipient's collect
four pieces of demographic information about each registrant,
applicant, eligible applicant, participant, employee, and applicant for
employment: Race/ethnicity, sex, age, and disability status. This
information must be kept separate from the recipient's individual
records about such persons. However, the system for data and
information collection and maintenance must be designed in such a way
to allow cross referencing of data to individual records.
It is CRC's policy that existing systems for data and information
collection and maintenance that meet all the requirements of 29 CFR
37.37 through 37.41 are acceptable. These systems may be designed by
the recipient or some other entity. However, to the extent that a
system does not meet all the requirements of these regulatory sections,
that system must be modified so that it does meet those requirements.
(a) The narrative section of this element should describe, at a
minimum, how the State ensures that:
{time} Recipients:
{time} Collect and maintain records on applicants, registrants,
eligible applicants/registrants, participants, terminees, employees,
and applicants for employment;
{time} Record the race/ethnicity, sex, age and, disability status of
each applicant, registrant, eligible applicant/registrant, participant,
terminee, employee, and applicant for employment (See 29 CFR
37.37(b)(2).);
{time} Treat records, particularly those containing medical
information, in a manner that ensures their confidentiality (See 29 CFR
32.15; 29 CFR 37.37(b)(2); and 29 CFR 37.41.);
{time} Maintain a log of complaints filed that allege discrimination
on one or more of the bases prohibited by WIA section 188 (See 29 CFR
37.37(c).); and
{time} Maintain such records for a period of three years. (See 29 CFR
37.39.)
{time} Grant applicants and recipients notify the CRC Director of
administrative enforcement actions and lawsuits brought against them
that allege discrimination on one or more of the bases prohibited by
WIA section 188. (See 29 CFR 37.37(a).)
(b) Documentation for this element to be submitted as part of the
MOA should include, but need not be limited to, copies of:
{time} Instructions to recipients within the State regarding
information collection, access to records, and maintenance of records.
(See 29 CFR 37.37.)
{time} Samples of each policy issuance that discusses ensuring the
confidentiality of demographic information regarding individuals.
{time} Samples of reports regarding the above demographic information.
{time} Samples of formats and instructions, in hard copy and
electronic file forms, for complaint logs used by the State and its
recipients to track complaints that allege a violation of WIA section
188 or 29 CFR part 37.
Element 7. Monitor Recipients for Compliance (29 CFR 37.54(d)(2)(ii))
In this element, the State should address how it and its recipients
are complying and will continue to comply with the requirements of 29
CFR 37.54(d)(1)(iii). The State is required to establish procedures to
monitor periodically all aspects of the recipient's compliance with WIA
section 188 and 29 CFR part 37.
Each EO monitoring review must include a review of each
recipient's:
{time} Compliance with its administrative obligations under WIA
section 188 and 29 CFR part 37 (e.g., assurances, notice and
communication, EO Officers);
{time} Compliance with responsibilities it has been assigned through
the MOA;
{time} Programs and activities, to determine whether discrimination is
occurring. This activity is the most important part of the monitoring
review.
Monitoring recipients to ensure their programs and activities are
operating in a nondiscriminatory manner must involve, at a minimum:
(1) Analysis of the data and records collected by the recipient
pursuant to 29 CFR 37.37 through 41, to determine whether any
differences based upon race/ethnicity or sex have practical or
statistical significance; and
(2) Where significant differences are found, follow-up
investigations to determine, through records review, interviews, and
other appropriate investigative techniques, whether the differences are
due to discrimination.
The analyses mentioned in section (1) above may include those that
may reveal practical significance, such as the ``80% rule'' (see 41 CFR
60-3, the DOL regulation regarding the Uniform Employee Selection
Guidelines), and those that reveal statistical significance, such as
the two-standard deviation test.
(a) The narrative section of this element must describe, at a
minimum, the system for evaluating the extent to which recipients are:
{time} Complying with the administrative obligations of 29 CFR part
37, including, but not limited to:
{time} Assurances. (See 29 CFR 37.20 through 37.22.)
{time} Equal Opportunity Officers. (See 29 CFR 37.23 through 37.28.)
{time} Notice and communication. (See 29 CFR 37.29 through 37.36.)
{time} Data and information collection and maintenance. (See 29 CFR
37.37 through 37.41.)
{time} Universal access. (See 29 CFR 37.42.)
{time} Complaint processing procedures. (See 29 CFR 37.70 through
37.80.)
{time} Performing the responsibilities assigned such recipients by the
State through the MOA, such as:
{time} Conducting equal opportunity monitoring/evaluation reviews of
applicants for and recipients of WIA Title I financial assistance
(including monitoring assurances and programmatic and architectural
accessibility).
{time} Imposing sanctions and corrective actions for violations noted
by a recipient during its monitoring reviews.
{time} Ensuring policy development, communication, and training are
carried out.
{time} Ensuring that their programs and activities are operating in a
nondiscriminatory manner and ensuring equal opportunity, including but
not limited to:
{time} Conducting analyses, by race/ethnicity and sex, of program and
employment activity, including but not limited to rates of application,
placement, and termination, to determine if significant differences
exist, and
{time} Conducting follow-up monitoring to determine the cause of any
such differences, through the analysis of the records of individual
registrants, applicants, eligible applicants/registrants, employees and
applicants for employment; interviews; and other appropriate
techniques.
Additionally, the narrative should describe:
{time} The procedure for reviewing recipients' policies and
procedures, to ensure that the policies and procedures do not violate
the prohibitions contained in 29 CFR 37.5 through 37.10.
[[Page 51989]]
{time} The written reports prepared for each review. These reports
must provide, among other things, that the results of the monitoring
review will be made available to the recipient(s) reviewed.
{time} The involvement of the State- and local-level EO Officer(s) in
conducting reviews. Where EO monitoring is carried out by individuals
other than the State- or local-level EO Officer, the narrative should
provide the names, titles, and organizations of those persons.
{time} The procedure for determining which recipients are to be
reviewed, the frequency of reviews of recipients, and the number of
recipients to be reviewed per year.
(b) Documentation for this element to be submitted as part of the
MOA should include, but need not be limited to, copies of:
{time} Schedules of reviews and criteria for targeting recipients for
review.
{time} Monitoring instrument(s) used by State- and/or local-level
staff to monitor recipient EO activities.
{time} Policy issuances and procedural guidance regarding monitoring
reviews and recipient evaluations.
{time} A representative sample of reports of monitoring reviews,
including findings resulting from reviews and the status of follow-up
actions.
Element 8. Complaint Processing Procedures (29 CFR 37.54(d)(1)(v))
In this element, the State should address how it and its recipients
are complying and will continue to comply with the requirements of 29
CFR 37.76 through 37.79 regarding complaint processing procedures.
(a) The narrative section of this element should describe, at a
minimum, how the State ensures that:
{time} Recipients that are required to do so (see 29 CFR 37.77) have
developed and published complaint procedures. (See 29 CFR 37.76.) At a
minimum, such procedures must:
{time} Provide for the issuance of a written Notice of Final Action
within 90 days of the date on which the complaint is filed. (See 29 CFR
37.76(a).)
{time} Contain the elements listed in 29 CFR 37.76(b), which include:
{time} Initial, written notice to the complainant that contains an
acknowledgment that the recipient has received the complaint, and a
notice that the complainant has the right to be represented in the
complaint process (see 29 CFR 37.76(b)(1));
{time} A written statement, provided to the complainant, that contains
a list of the issues raised in the complaint and, for each issue, a
statement whether the recipient will accept the issue for investigation
or reject the issue, and the reasons for each rejection (see 29 CFR
37.76(b)(2));
{time} A period for fact-finding or investigation of the circumstances
underlying the complaint (see 29 CFR 37.76(b)(3));
{time} A period during which the recipient attempts to resolve the
complaint. The methods available to resolve the complaint must include
alternative dispute resolution (ADR) (see 29 CFR 37.76(b)(4) and (c));
and,
{time} A written Notice of Final Action, provided to the complainant
within 90 days of the date on which the complaint was filed, that
contains, for each issue raised in the complaint:
{time} Either a statement of the recipient's decision on the issue and
an explanation of the reasons underlying the decision, or a description
of the way the parties resolved the issue; and
{time} Notice that the complainant has a right to file a complaint
with CRC within 30 days of the date on which the Notice of Final Action
is issued if he or she is dissatisfied with the recipient's final
action on the complaint. (See 29 CFR 37.76(b)(5).)
{time} Describe the procedures to be followed if the complaint is
filed more than 180 days after the date of the alleged violation. (See
29 CFR 37.78.)
{time} Provide that, if the complainant is dissatisfied with the
outcome of the investigation, or if there is no final resolution of the
complaint within 90 days of the date the complaint is filed, the
complainant is notified that he or she may file his or her complaint
with the Civil Rights Center.
{time} Recipients follow the established procedures.
(b) Documentation for this element to be submitted as part of the
MOA should include, but need not be limited to, a copy of:
{time} The State's discrimination complaint procedures developed
pursuant to 29 CFR 37.76 through 37.79.
{time} The instrument (e.g., directive, memorandum) used to inform
recipients of the complaint procedures and directing recipients as to
their use.
{time} The ADR procedures, if not included with complaint processing
procedures.
Element 9. Corrective Actions/Sanctions (29 CFR 37.54(d)(2)(vii))
In this element, the State should address how it and its recipients
are complying and will continue to comply with the requirements of 29
CFR 37.54(d)(2)(vii).
(a) The narrative section of this element should describe, at a
minimum:
{time} The standard for corrective and remedial actions to be applied
when violations of WIA section 188 or 29 CFR part 37 are found.
Corrective and remedial actions must be designed to completely correct
each violation. For each corrective action, a time frame should be
established that sets the minimum time necessary to completely correct
the violation. In the case of a finding of discrimination, the
procedures must provide, where appropriate, for retroactive relief
(including but not limited to back pay) and prospective relief (e.g.,
training, policy development and communication) to ensure that the
discrimination does not recur.
{time} The procedures for follow-up monitoring to ensure that
commitments to take corrective action and remedial action are
fulfilled.
{time} Reports required from the violating recipient regarding actions
to correct the violation(s).
{time} Sanction procedures to be followed where voluntary compliance
cannot be achieved.
(b) Documentation for this element to be submitted as part of the
MOA should include, but need not be limited to:
{time} A copy of any policy memorandum/directive explaining corrective
actions/sanctions. The sanction procedures described in Subpart E of 29
CFR part 37 may be used as a model for States in the preparation of
their procedures.
{time} A copy of each instrument (e.g., directives, memoranda) used to
inform recipients of the State's procedures regarding corrective
actions and sanctions.
II. Guidance on Meeting the Requirements of 29 CFR 37.55
Section 37.55 requires that each State's MOA must be:
<bullet> Developed and implemented, and a copy submitted to the CRC
Director within 180 days of the effective date of 29 CFR part 37, or
within 180 days of the Department of Labor's approval of that State's
Strategic Five-year Plan, whichever is later;
[[Page 51990]]
<bullet> Updated when necessary, and the Director notified of any
updates at the time of the update; and
<bullet> Reviewed every two years from the date on which the initial
MOA is submitted to the Director under 29 CFR 37.55(a)(2); for each
such review, either the changes made to the MOA as a result of the
review, or a certification that no changes are necessary, must be
submitted to the Director.
Initial Submission of MOA
Title 29 CFR 37.55(a) requires that each Governor develop and
implement an MOA, and submit to the Director a copy of that State's
MOA, within 180 days after the State becomes subject to WIA section 188
and 29 CFR part 37. The date on which the 180-day clock begins running
is contingent upon the date upon which DOL gave final approval to the
State's Five-year Strategic Plan (Plan). MOAs of States whose Plan
received final approval on or before November 12, 1999, the effective
date of 29 CFR part 37 we due to be submitted to the Director within
180 days of that effective date, in other words, by May 10, 2000.
On the other hand, MOAs of States whose Plan received final
approval after November 12, 1999, must be submitted 180 days after the
date the Plan received final approval by DOL. For example, State A is
delaying its transition to WIA until July 1, 2000, and does not submit
its Plan to DOL until February 1, 2000. State A's Plan receives final
approval on May 1, 2000. Given this scenario, State A is required to
submit its MOA on or before the date that falls 180 days after May 1.
The final date for the submission of State A's MOA, therefore, is
October 28, 2000.
Note: The 180-day timeframe described above applies only to the
submission of the MOA. In general, States and their WIA Title I-
financially assisted recipients are subject to the requirements of
WIA section 188 and 29 CFR part 37 on November 12, 1999 or on the
date they begin operating WIA Title I programs and activities,
whichever is later. The provisions of JTPA section 167 and its
implementing regulations, 29 CFR part 34 continue to apply to
programs and activities that are implemented under and authorized by
JTPA.
Updating the MOA
Title 29 CFR 37.55(b) requires the Governor to (1) update the MOA
as necessary and (2) notify the Director of those updates. The
requirements regarding updating were not part of the JTPA MOA
regulations at 29 CFR 34.33. CRC deemed these new requirements
necessary as a result of reviews of MOAs developed under JPTA. Those
reviews indicated that the procedures to which a State originally
committed in its MOA were not necessarily those in effect at the time
of CRC's review. The purpose of an MOA is to describe to DOL how a
State will ensure that WIA Title I financial assistance will be
administered in a nondiscriminatory way. Further, the MOA is intended
to be a document that State-and local-level staff and management,
through the EO Officer, can consult when determining appropriate steps
to take when confronted with an EO issue. Therefore, the MOA should be
kept current and the Director notified of any changes.
State-level MOA Review
Title 29 CFR 37.55(c) requires that, every two years from the date
on which the initial MOA is submitted to the Director under 29 CFR
37.55(a)(2), the Governor must review the MOA and its implementation to
determine if any changes are necessary , either to the document or the
way in which it is implemented. At the time of the review, the Governor
must either (1) provide the Director with any changes that are made or
(2) certify to the Director, in writing, that no changes are necessary.
This requirement is also a change from the MOA requirements under JTPA.
It has been CRC's intent that the MOA be a living document, a guide
describing how the State will ensure that its WIA Title I-financially
assisted programs operate in a nondiscriminatory manner. Through these
modest regulatory changes, CRC hopes to convey that the MOA is to be a
document that serves as a guide in fulfilling the recipient's
obligations of nondiscrimination and equal opportunity.
[FR Doc. 00-21740 Filed 8-24-00; 8:45 am]
BILLING CODE 4510-23-P