Policy Guidance on the Prohibition of National Origin Discrimination as it Affects Persons with Limited English Proficiency [05/29/2003]
Volume 68, Number 103, Page 32289-32305
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Part IV
Department of Labor
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Civil Rights Center; Enforcement of Title VI of the Civil Rights Act of
1964; Policy Guidance to Federal Financial Assistance Recipients
Regarding the Title VI Prohibition Against National Origin
Discrimination Affecting Limited English Proficient Persons; Notice
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DEPARTMENT OF LABOR
Office of the Secretary
Civil Rights Center; Enforcement of Title VI of the Civil Rights
Act of 1964; Policy Guidance to Federal Financial Assistance Recipients
Regarding the Title VI Prohibition Against National Origin
Discrimination Affecting Limited English Proficient Persons
AGENCY: Office of the Secretary, Labor.
ACTION: Notice of policy guidance with request for comment.
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SUMMARY: The Department of Labor (DOL) publishes Revised Guidance to
Federal Financial Assistance Recipients Regarding the Title VI
Prohibition Against National Origin Discrimination Affecting Limited
English Proficient Persons (Revised DOL Recipient LEP Guidance). This
Revised DOL Recipient LEP Guidance is issued pursuant to Executive
Order 13166.
DATES: This Guidance is effective immediately. Comments must be
submitted on or before June 30, 2003. DOL will review all comments and
will determine what modifications to the Guidance, if any, are
necessary. This Guidance supplants existing guidance on the same
subject originally published at 66 FR 4596 (January 17, 2001).
ADDRESSES: Interested persons should submit written comments to Ms.
Annabelle T. Lockhart, Director, Civil Rights Center, U.S. Department
of Labor, 200 Constitution Ave., NW., Room N-4123, Washington, DC
20210. Commenters wishing acknowledgment of their comments must submit
them by certified mail, return receipt requested. Please be advised
that mail delivery to federal buildings in the Washington, DC
metropolitan area may experience delays due to concerns about anthrax
contamination. Comments may also be transmitted by facsimile to (202)
693-6505 or by e-mail to civilrightscenter@dol.gov.
FOR FURTHER INFORMATION CONTACT: Annabelle Lockhart or Naomi Barry-
Perez at the Civil Rights Center, U.S. Department of Labor, 200
Constitution Ave., NW., Room N-4123, Washington, DC 20210. Telephone:
202-693-6500; TTY: 202-693-6515. Arrangements to receive the Guidance
in an alternative format may be made by contacting the named
individuals.
SUPPLEMENTARY INFORMATION: Under DOL regulations implementing Title VI
of the Civil Rights Act of 1964, 42 U.S.C. 2000d, et seq. (Title VI),
recipients of federal financial assistance have the responsibility to
ensure meaningful access to their programs and activities by persons
with limited English proficiency (LEP). See 29 CFR part 31. Executive
Order 13166, reprinted at 65 FR 50121 (August 16, 2000), directs each
federal agency that extends assistance subject to the requirements of
Title VI to publish guidance for its respective recipients clarifying
that obligation. Executive Order 13166 further directs that all such
guidance documents be consistent with the compliance standards and
framework detailed in the Department of Justice (DOJ) Policy Guidance
entitled ``Enforcement of Title VI of the Civil Rights Act of 1964--
National Origin Discrimination Against Persons with Limited English
Proficiency.'' See 65 FR 50123 (August 16, 2000).
On January 17, 2001, DOL published Guidance on how Title VI of the
Civil Rights Act of 1964, as amended, 42 U.S.C. 2000d, et seq., and its
implementing regulations apply to recipients of DOL financial
assistance in their contact with persons who are limited English
proficient (``LEP Guidance''). See 66 FR 4596. The LEP Guidance also
addressed the responsibilities of recipients under Section 188 of the
Workforce Investment Act, Public Law 105-220, 29 U.S.C. 2938, and its
implementing regulations, which adopt the same prohibition against
national origin discrimination that is found in Title VI. DOL received
extensive comments following the January 17, 2001 publication of the
LEP Guidance.
On March 14, 2002, the Office of Management and Budget (OMB) issued
a Report to Congress titled ``Assessment of the Total Benefits and
Costs of Implementing Executive Order No. 13166: Improving Access to
Services for Persons with Limited English Proficiency.'' Among other
things, the Report recommended the adoption of uniform guidance across
all Federal agencies, with flexibility to permit tailoring to each
agency's specific recipients. Consistent with this OMB recommendation,
DOJ published LEP Guidance for DOJ recipients, which was drafted and
organized to also function as a model for similar guidance documents by
other Federal grant agencies. See 67 FR 41455 (June 18, 2002).
This revised DOL Guidance reflects consideration of comments
received and the additional guidance of DOJ. Following DOJ's direction,
we will again accept public comment and will revise and republish, as
appropriate. Because DOJ has indicated that this Guidance must adhere
to the federal-wide compliance standards and framework detailed in the
model DOJ LEP Guidance issued on June 18, 2002, DOL specifically
solicits comments on the nature, scope and appropriateness of the DOL-
specific examples set out in this guidance explaining and/or
highlighting how those consistent federal-wide compliance standards are
applicable to recipients of federal financial assistance through DOL.
The model DOJ LEP guidance includes a section regarding ``safe
harbors'' for written translations of vital material. That section
states:
``Safe Harbor. Many recipients would like to ensure with greater
certainty that they comply with their obligations to provide written
translations in languages other than English. Paragraphs (a) and (b)
outline the circumstances that can provide a ``safe harbor'' for
recipients regarding the requirements for translation of written
materials. A ``safe harbor'' means that if a recipient provides written
translations under these circumstances, such action will be considered
strong evidence of compliance with the recipient's written-translation
obligations.
The failure to provide written translations under the circumstances
outlined in paragraphs (a) and (b) does not mean there is non-
compliance. Rather, they provide a common starting point for recipients
to consider whether and at what point the importance of the service,
benefit, or activity involved; the nature of the information sought;
and the number or proportion of LEP persons served call for written
translations of commonly-used forms into frequently-encountered
languages other than English. Thus, these paragraphs merely provide a
guide for recipients that would like greater certainty of compliance
than can be provided by a fact-intensive, four-factor analysis.
Example: Even if the safe harbors are not used, if written
translation of a certain document(s) would be so burdensome as to
defeat the legitimate objectives of its program, the translation of
the written materials is not necessary. Other ways of providing
meaningful access, such as effective oral interpretation of certain
vital documents, might be acceptable under such circumstances.
Safe Harbor. The following actions will be considered strong
evidence of compliance with the recipient's written-translation
obligations:
(a) The DOJ recipient provides written translations of vital
documents for each eligible LEP language group that constitutes five
percent or 1,000, whichever is less, of the population of persons
eligible to be served or likely to be affected or encountered.
Translation
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of other documents, if needed, can be provided orally; or
(b) If there are fewer than 50 persons in a language group that
reaches the five percent trigger in (a), the recipient does not
translate vital written materials but provides written notice in the
primary language of the LEP language group of the right to receive
competent oral interpretation of those written materials, free of cost.
These safe harbor provisions apply to the translation of written
documents only. They do not affect the requirement to provide
meaningful access to LEP individuals through competent oral
interpreters where oral language services are needed and are
reasonable.
DOL has not included a similar safe harbor provision for
translations in this revised Guidance. The absence of such language is
not intended to detract from or otherwise minimize the underlying
obligation to ensure that LEP persons can access all vital documents.
DOL encourages comments which focus on the applicability of the above
safe harbor to DOL recipients, suggestions of thresholds that may
better reflect DOL's universe of program customers and recipients'
responsibilities, the possible advantages or disadvantages of including
language similar to the model DOJ Guidance, as well as any suggestions
that would ensure the consistency that OMB has recommended while at the
same time ensuring that the Guidance is appropriate for the types of
recipients funded by DOL.
It has been determined that this revised Guidance does not
constitute a regulation subject to the rulemaking requirements of the
Administrative Procedure Act, 5 U.S.C. 553, and is not subject to
Executive Order 12866 (Regulatory Review and Planning, September 30,
1993).
Signed at Washington, DC this 19th of May 2003.
Elaine L. Chao,
Secretary of Labor.
I. Introduction
Most individuals living in the United States read, write, speak and
understand English. There are many individuals, however, for whom
English is not their primary language. For instance, according to the
2000 census, over 26 million individuals speak Spanish and almost seven
million individuals speak an Asian or Pacific Island language at home.
If these individuals have a limited ability to read, write, speak, or
understand English, they are limited English proficient, or ``LEP.''
While detailed data has not yet been released, the 2000 census
estimates that over 6.6 million Spanish speakers (representing 3.28
percent of U.S. residents over the age of 18) do not speak English
``well or at all.'' Over 1.2 million people (over the age of 18) who
speak other ``Indo-European'' languages cannot speak English ``well or
at all.'' Over 1.4 million Asian or Pacific Islanders (over the age of
18) speak English ``not well'' or ``not at all.'' In total, more than
10.5 million people claim to speak little or no English, demonstrating
an increase of approximately four million since 1990.
Language for LEP individuals can be a barrier to accessing
important benefits or services, understanding and exercising important
rights, complying with applicable responsibilities, or understanding
other information provided by federally assisted programs and
activities. The federal government provides financial assistance to an
array of services that can be made accessible to otherwise eligible LEP
persons. The federal government is committed to improving the
accessibility of these programs and activities to eligible LEP persons,
a goal that reinforces its equally important commitment to promoting
programs and activities designed to help individuals learn English.
Recipients should not overlook the long-term positive impacts of
incorporating or offering English as a Second Language (ESL) programs
in parallel with language assistance services. ESL courses can serve as
an important adjunct to a proper LEP plan. However, the fact that ESL
classes are made available does not obviate the statutory and
regulatory requirement to provide meaningful access for those who are
not yet English proficient. Recipients of federal financial assistance
have an obligation to reduce language barriers that can preclude
meaningful access by LEP persons to important government services.\1\
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\1\ DOL recognizes that many recipients had language assistance
services in place to provide LEP individuals meaningful access to
programs and activities prior to the issuance of Executive Order
13166. This Guidance provides a uniform framework for recipients to
integrate, formalize, and assess the continued vitality of existing
and possibly additional reasonable efforts based on the nature of
the programs or activities, the current needs of the LEP populations
encountered, and prior experience in providing language services in
the communities served.
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In certain circumstances, failure to ensure that LEP persons can
effectively participate in or benefit from federally assisted programs
and activities may violate the prohibition under Title VI of the Civil
Rights Act of 1964, 42 U.S.C. 2000d, Title VI regulations, and Section
188 of the Workforce Investment Act (WIA) against national origin
discrimination. The purpose of this Guidance is to assist recipients in
fulfilling their responsibilities to provide meaningful access to LEP
persons under existing law. This Guidance clarifies existing legal
requirements for LEP persons by providing a description of the factors
recipients should consider in fulfilling their responsibilities to LEP
persons.\2\ These are the same criteria DOL will use in evaluating
whether recipients are in compliance with Title VI and its implementing
regulations and Section 188 of WIA.
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\2\ This Guidance is not a regulation but rather a guide.
Accordingly, the examples provided are illustrative and should not
be construed as requirements. Title VI and its implementing
regulations and Section 188 of WIA require that recipients take
reasonable steps to ensure meaningful access by LEP persons. This
Guidance provides an analytical framework that recipients may use to
determine how best to comply with statutory and regulatory
obligations to provide meaningful access to the benefits, services,
information, and other important portions of their programs and
activities for individuals who are limited English proficient.
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The Department of Justice (DOJ) has a unique role under Executive
Order 13166. The Order charges DOJ with responsibility for providing
guidance to other federal agencies on how to serve LEP individuals and
for ensuring consistency among the agency-specific guidance documents.
Consistency among departments of the federal government is particularly
important. Inconsistency or contradictory guidance could confuse
recipients of federal funds and needlessly increase costs without
rendering the meaningful access for LEP persons that this Guidance and
other federal agency guidance documents are designed to address. As
with most government initiatives, this requires balancing several
principles. While this Guidance discusses that balance in some detail,
it is important to note the basic principles behind that balance.
First, we must ensure that federally assisted programs aimed at the
American public do not leave some behind simply because they face
challenges communicating in English. This is of particular importance
because, in many cases, LEP individuals form a substantial portion of
those encountered in federally assisted programs. Second, we must
achieve this goal while finding constructive methods to reduce the
costs of LEP requirements on small businesses, small local governments,
or small non-profits that receive federal financial assistance.
There are many productive steps that the Federal government, either
collectively or as individual grant agencies, can take to help
recipients
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reduce the costs of language services without sacrificing meaningful
access for LEP persons. Without these steps, certain smaller grantees
may well choose not to participate in federally assisted programs,
threatening the critical functions that the programs strive to provide.
To that end, DOL will continue to provide assistance and guidance in
this important area and will work with recipients of DOL financial
assistance, including state and local workforce agencies, advocacy
groups, and LEP persons, to identify and share model plans, examples of
best practices, and cost-saving approaches. Moreover, DOL intends to
explore how language assistance measures, resources and cost-
containment approaches developed with respect to its own federally
conducted programs and activities can be effectively shared or
otherwise made available to recipients, particularly small businesses,
small local governments, and small non-profits. An interagency working
group on LEP has developed a website, http://www.lep.gov, to assist in
disseminating this information to recipients, federal agencies, and the
communities being served.
Some have interpreted the case of Alexander v. Sandoval, 532 U.S.
275 (2001), as impliedly striking down the regulations promulgated
under Title VI that form the basis for the part of Executive Order
13166 that applies to federally assisted programs and activities. DOJ
has taken the position that this is not the case. Accordingly, DOL will
strive to ensure that federally assisted programs and activities work
in a way that is effective for all eligible beneficiaries, including
those with limited English proficiency.
II. Legal Authority
Section 601 of Title VI of the Civil Rights Act of 1964, 42 U.S.C.
2000d, provides that no person shall ``on the ground of race, color, or
national origin, be excluded from participation in, be denied the
benefits of, or be subjected to discrimination under any program or
activity receiving federal financial assistance.'' Section 602
authorizes and directs Federal agencies that are empowered to extend
Federal financial assistance to any program or activity ``to effectuate
the provisions of [section 601] * * * by issuing rules, regulations, or
orders of general applicability.'' 42 U.S.C. 2000d-1.
Department of Labor regulations promulgated pursuant to section 602
forbid recipients from ``utiliz[ing] criteria or methods of
administration which have the effect of subjecting individuals to
discrimination because of their race, color, or national origin, or
have the effect of defeating or substantially impairing accomplishment
of the objectives of the program as respects individuals of a
particular race, color, or national origin.'' 29 CFR 31.3(b)(2).
The Supreme Court, in Lau v. Nichols, 414 U.S. 563 (1974),
interpreted regulations promulgated by the former Department of Health,
Education, and Welfare, including a regulation similar to that of DOL,
45 CFR 80.3(b)(2), to hold that Title VI prohibits conduct that has a
disproportionate effect on LEP persons because such conduct constitutes
national origin discrimination. In Lau, a San Francisco school district
that had a significant number of non-English speaking students of
Chinese origin was required to take reasonable steps to provide the LEP
students with a meaningful opportunity to participate in federally
funded educational programs.
In the DOL context, Section 188 of the Workforce Investment Act
(WIA) provides that no individual shall be excluded from participation
in, denied the benefits of, be subjected to discrimination under, or
denied employment in the administration of or in connection with, any
such program or activity because of race, color, religion, sex (except
as otherwise permitted under Title IX of the Education Amendments of
1972), national origin, age, political affiliation or belief, status as
a qualified individual with disabilities or specified noncitizenship
statuses (e.g., lawfully admitted resident aliens).
The regulations implementing the nondiscrimination and equal
opportunity provisions of Section 188 specifically address national
origin discrimination and language access. Where ``a significant number
or proportion of the population eligible to be served, or likely to be
directly affected, by a WIA Title I-assisted program or activity may
need services or information in a language other than English in order
to be effectively informed about, or able to participate in, the
program or activity,'' the Section 188 regulations require recipients
``to take reasonable steps to provide services and information in
appropriate languages.'' 29 CFR 37.35(a). Even where there is not a
``significant'' number or proportion of LEP persons in the community
serviced by the recipient, recipients nonetheless are required to
``make reasonable efforts to meet the particularized language needs of
limited-English speaking individuals who seek services or information
from the recipient.'' 29 CFR 37.35(b). This means that, for instance,
when the LEP population in the community serviced by a recipient does
not comprise a ``significant'' number or proportion, recipients should
still balance the four factors described herein to determine what steps
are reasonable to meet the particularized language needs of those
seeking services or information.
The regulations implementing Section 188 require the Governor of
every state recipient of WIA-Title I financial assistance to establish
and adhere to a Methods of Administration (``MOA''). Further, the
regulations require that MOAs include a description of how the state
programs and recipients have satisfied the specified requirements of
the Section 188 implementing regulations, including the obligation to
provide services and information in appropriate languages under the
circumstances outlined in 29 CFR 37.35. Although the regulatory
language differs, the obligations of recipients to provide
accessibility by LEP persons to DOL financially assisted programs and
activities are the same under Title VI and Section 188.
On August 11, 2000, Executive Order 13166 was issued. ``Improving
Access to Services for Persons with Limited English Proficiency,'' 65
FR 50121 (August 16, 2000). Under that Order, every federal agency that
provides financial assistance to non-federal entities must publish
guidance on how their recipients can provide meaningful access to LEP
persons and thus comply with the Title VI regulations forbidding
funding recipients from ``restrict[ing] an individual in any way in the
enjoyment of any advantage or privilege enjoyed by others receiving any
service, financial aid, or other benefit under the program'' or from
``utiliz[ing] criteria or methods of administration which have the
effect of subjecting individuals to discrimination because of their
race, color, or national origin, or have the effect of defeating or
substantially impairing accomplishment of the objectives of the program
as respects individuals of a particular race, color, or national
origin.''
On that same day, DOJ issued a general guidance document addressed
to ``Executive Agency Civil Rights Officers'' setting forth broad
principles for agencies to apply in developing guidance documents for
recipients pursuant to the Executive Order. ``Enforcement of Title VI
of the Civil Rights Act of 1964 National Origin Discrimination Against
Persons With Limited English Proficiency,'' 65 FR 50123 (August 16,
2000) (``DOJ LEP Guidance'').
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Subsequently, federal agencies raised questions regarding the
requirements of the Executive Order, especially in light of the Supreme
Court's decision in Alexander v. Sandoval, 532 U.S. 275 (2001). On
October 26, 2001, Ralph F. Boyd, Jr., Assistant Attorney General for
DOJ's Civil Rights Division, issued a memorandum for ``Heads of
Departments and Agencies, General Counsels and Civil Rights
Directors,'' which clarified and reaffirmed the DOJ LEP Guidance in
light of Sandoval.\3\ The Assistant Attorney General stated that
because Sandoval did not invalidate any Title VI regulations that
proscribe conduct that has a disparate impact on covered groups--the
type of regulations that form the legal basis for the part of Executive
Order 13166 that applies to federally assisted programs and
activities--the Executive Order remains in force.
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\3\ The DOJ memorandum noted that some commentators have
interpreted Sandoval as impliedly striking down the disparate-impact
regulations promulgated under Title VI that form the basis for the
part of Executive Order 13166 that applies to federally assisted
programs and activities. See, e.g., Sandoval, 532 U.S. at 286, 286
n.6 (``[W]e assume for purposes of this decision that section 602
confers the authority to promulgate disparate-impact regulations; *
* * We cannot help observing, however, how strange it is to say that
disparate-impact regulations are `inspired by, at the service of,
and inseparably intertwined with' Sec. 601* * * when Sec. 601
permits the very behavior that the regulations forbid.''). The
memorandum, however, made clear that DOJ disagreed with the
commentators' interpretation. Sandoval holds principally that there
is no private right of action to enforce Title VI disparate-impact
regulations. It did not address the validity of those regulations or
Executive Order 13166 or otherwise limit the authority and
responsibility of federal grant agencies to enforce their own
implementing regulations.
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Pursuant to Executive Order 13166, DOL developed its own guidance
document for recipients, which was initially issued on January 17,
2001. ``Guidance on Improving Access to Services for Persons with
Limited English Proficiency,'' 66 FR 4596 (January 17, 2001) (DOL LEP
Guidance). This Proposed Revised Guidance is thus published pursuant to
Executive Order 13166 in light of the Assistant Attorney General Boyd's
October 26, 2001 clarifying memorandum.
III. Who Is Covered?
Department of Labor regulations, 29 CFR part 31, require all
recipients of federal financial assistance from DOL to provide
meaningful access to LEP persons.\4\ Federal financial assistance
includes grants, training, use of equipment, donations of surplus
property, and other assistance. Recipients of DOL assistance include,
for example:
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\4\ Pursuant to Executive Order 13166, the meaningful access
requirement of the Title VI regulations and the four-factor analysis
set forth in the DOJ LEP Guidance are to additionally apply to the
programs and activities of federal agencies, including the
Department of Labor.
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[sbull] State-level agencies that administer, or are financed in
whole or in part with, WIA Title I funds;
[sbull] State Workforce Agencies;
[sbull] State and local Workforce Investment Boards;
[sbull] Local workforce investment areas (``local areas'') grant
recipients;
[sbull] One-Stop Career Center operators;
[sbull] Service providers, including eligible training providers
and youth service providers;
[sbull] On-the-Job Training (OJT) employers;
[sbull] Job Corps contractors and center operators;
[sbull] Job Corps national training contractors;
[sbull] Outreach and admissions agencies, including Job Corps
contractors that perform these functions; and
[sbull] Other national program recipients.
Subrecipients likewise are covered when federal funds are passed
through from one recipient to a subrecipient. This Guidance does not
create any new requirements for community colleges and other
educational institutions that receive federal financial assistance
under the Higher Education Act as these institutions must already
comply with Title VI requirements.
Pursuant to the Civil Rights Restoration Act of 1987 (CRRA),
coverage extends to a recipient's entire program or activity, i.e., to
all parts of a recipient's operations. This is true even if only one
part of the recipient receives the federal assistance.\5\
\5\ However, if a federal agency were to decide to terminate
federal funds based on noncompliance with Title VI or its
regulations, only funds directed to the particular program or
activity that is out of compliance would be terminated. 42 U.S.C.
2000d-1.
Example: DOL provides assistance to a state department of labor
to support the development of the state's One-Stop Career System.
While the funds may be administered by one agency within the state
department, Title VI applies to all of the operations of the entire
state department of labor--not just the One-Stop Career delivery
system.\6\
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\6\ The nondiscrimination and equal opportunity provisions of
WIA and its implementing regulations apply to programs and
activities that are part of the One-Stop Career System and that are
operated by the One-Stop Career System partners listed in section
121(b) of WIA (29 U.S.C. 2841(b)), to the extent that the programs
and activities are being conducted as part of the One-Stop Career
System. When a One-Stop Career System partner receives federal
financial assistance from an Executive agency other than DOL, such
as the Department of Education, Health and Human Services,
Agriculture or Housing and Urban Development, the grant-making
agency enforces the recipient's Title VI obligation. Therefore, when
a One-Stop Career System partner receives federal financial
assistance from an agency other than DOL, the partner should follow
the LEP guidance issued by that agency, to the extent that such
guidance exists. If LEP guidance has not been issued by the grant-
making agency, or if that guidance does not address the activities
of the One-Stop Career partner, the One-Stop Career partner should
follow this Guidance until such time as the grant-making agency
issues LEP guidance.
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Finally, some recipients operate in localities in which English has
been declared the official language. Nonetheless, these recipients
continue to be subject to federal non-discrimination requirements,
including those applicable to the provision of federally assisted
services to persons with limited English proficiency.
IV. Who Is a Limited English Proficient Individual?
Individuals who do not speak English as their primary language and
who have a limited ability to read, write, speak, or understand English
can be limited English proficient, or ``LEP,'' and entitled to language
assistance with respect to a particular type of service, benefit, or
encounter.
Examples of populations likely to include LEP persons who are
encountered and/or served by DOL recipients and should be considered
when planning language services include, but are not limited to:
[sbull] Unemployed and/or dislocated individuals seeking
unemployment insurance (UI), job search and/or job training services.
[sbull] Workers, such as those doing construction or working in
mines, who receive training from Occupational Safety and Health or Mine
Safety and Health training providers.
[sbull] Youth looking for summer employment, academic and career
exploration or vocational training and employment opportunities, such
as participation in Job Corps, and their parents or family members.
[sbull] Migrant and seasonal agricultural workers seeking placement
and/or information on protections afforded to them in this work.
[sbull] Workers seeking information or enforcement from a recipient
regarding wage and hour and safety and health laws.
V. How Does a Recipient Determine the Extent of Its Obligation To
Provide LEP Services?
Recipients are required to take reasonable steps to ensure
meaningful access to their programs and activities by LEP persons.
While designed to be a flexible and fact-dependent standard, the
starting point is an individualized
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assessment that balances the following four factors: (1) The number or
proportion of LEP persons served or encountered in the eligible service
population; (2) the frequency with which LEP individuals come in
contact with the program; (3) the nature and importance of the program,
activity, or service provided by the recipient; and (4) the resources
available to the recipient and costs. As indicated above, the intent of
this Guidance is to suggest a balance that ensures meaningful access by
LEP persons to critical services while not imposing undue burdens on
small businesses, small local governments, or small non-profits.
After applying the above four-factor analysis, a recipient may
conclude that different language assistance measures are sufficient for
the different types of programs or activities in which it engages. For
instance, some of a recipient's activities will be more important than
others and/or have greater impact on or contact with LEP persons, and
thus may require more in the way of language assistance. The
flexibility that recipients have in addressing the needs of the LEP
populations they serve does not diminish, and should not be used to
minimize, the obligation that those needs be addressed. DOL recipients
should apply the four factors to the various kinds of contacts that
they have with the public to assess language needs and decide what
reasonable steps should be taken to ensure meaningful access for LEP
persons.
(1) The Number or Proportion of LEP Persons Served or Encountered in
the Eligible Service Population
One factor in determining what language services recipients should
provide is the number or proportion of LEP persons from a particular
language group served or encountered in the eligible service
population. The greater the number or proportion of these LEP persons,
the more likely language services are needed. Ordinarily, persons
``eligible to be served, or likely to be directly affected, by'' a
recipient's program or activity, 29 CFR 37.35(a), are those who are
served or encountered in the eligible service population. This
population will be program-specific, and includes persons who are in
the geographic area that has been approved by a federal grant agency as
the recipient's service area. However, where, for instance, a recipient
serves a large LEP population, the appropriate service area is most
likely determined by considering local service areas and not the entire
population served by the recipient. This, for example, could occur in a
local workforce investment area (local area) that manages more than a
single One-Stop Career Center. Instead of being guided by a population
survey for the local area, each One-Stop Career Center may wish to
assess its local service population.
We suggest that states operating statewide programs, such as the
Unemployment Insurance program or Workforce Investment Act programs,
assess statewide language groups to identify potentially significant
LEP populations, and ensure that local offices conduct similar surveys
of their local service populations. Small entities, such as Vermont,
Delaware, and the District of Columbia, that operate only a single
local workforce investment area, should assess their overall
populations with an awareness of any ``pockets'' of LEP persons that
may exist in certain areas (e.g., the Chinatown or Adams Morgan
(largely Spanish-speaking) areas of Washington, DC). Where no service
area has previously been approved, the relevant service area may be
that which is approved by state or local authorities or designated by
the recipient itself, provided that these designations do not
themselves discriminatorily exclude certain populations. For most
workforce investment services, the target audience is defined in
geographic rather than programmatic terms. However, some services may
be targeted to reach a particular audience (e.g., out-of-school youth
or migrant/seasonal farmworkers). The attached Appendix provides
examples to assist in determining the eligible service population. When
considering the number or proportion of LEP individuals in a service
area, recipients should consider LEP parent(s) when their English-
proficient or LEP minor children and dependents encounter the workforce
system, including youth employment and training programs and Job Corps.
In assessing the number or proportion of LEP persons eligible to be
served or likely to be encountered, recipients should first examine
their prior experiences with LEP encounters and determine the breadth
and scope of language services that have been needed. In conducting
this analysis, it is important to include language minority populations
that are eligible for programs or activities but may have been
underserved because of existing language barriers. Other data should be
consulted to refine or validate a recipient's prior experience,
including the latest census data for the area served, data from school
systems and from community organizations, and data from state and local
governments.\7\ Community agencies, school systems, faith-based
organizations, legal aid entities, and others can often assist in
identifying populations for whom outreach is needed and who would
benefit from recipients' programs and activities where language
services are provided.
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\7\ The focus of the analysis is on lack of English proficiency,
not the ability to speak more than one language. Note that
demographic data may indicate the most frequently spoken languages
other than English as well as the percentage of people who speak
other languages and who speak or understand English less than well.
Some of the most commonly spoken languages other than English may be
spoken by people who are also overwhelmingly proficient in English.
Thus, they may not be the languages spoken most frequently by
limited English proficient individuals. When using demographic data,
it is important to focus on the languages spoken by those who are
not proficient in English.
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(2) The Frequency With Which LEP Individuals Come in Contact With the
Program
Recipients should assess, as accurately as possible, the frequency
with which they have or should have contact with LEP individuals from
potential language groups seeking assistance. The more frequent the
contact with a particular language group, the more likely that enhanced
language services in that language are needed. The steps that are
reasonable for a recipient that serves a LEP person on a one-time basis
will be very different than those expected from a recipient that serves
LEP persons daily. It is also advisable to consider the frequency of
different types of language contacts. For example, frequent contacts
with Spanish-speaking people who are LEP may require certain assistance
in Spanish. Less frequent contact with different language groups may
suggest a different and less intensified solution. If a LEP individual
accesses a program or service on a daily basis, a recipient has greater
duties than if the same individual's program or activity contact is
unpredictable or infrequent. But even recipients that serve LEP persons
on an unpredictable or infrequent basis should use this balancing
analysis to determine what to do if a LEP individual seeks services
under the program in question. This plan need not be intricate. It may
be as simple as being prepared to use one of the commercially-available
telephonic interpretation services to obtain immediate interpreter
services. In applying this standard, recipients should take care to
consider whether appropriate outreach to LEP persons could increase the
frequency of contact with LEP language groups and therefore
[[Page 32295]]
also increase the demand for language assistance from these LEP
populations.
(3) The Nature and Importance of the Program, Activity, or Service
Provided by the Recipient
The more important the activity, information, service, or program,
or the greater the possible consequences of the contact to LEP
individuals, the more likely language services are needed. For example,
the requirements for filing a claim for Unemployment Insurance or Trade
Adjustment Assistance or safety and health information in the context
of Occupational Safety and Health or Mine Safety and Health training
programs must be effectively communicated. A recipient needs to
determine whether denial or delay of access to services or information
could have serious or even life-threatening implications for a LEP
individual. Decisions by a federal, state, or local entity to make an
activity compulsory, such as job training and/or job search
certification in the Unemployment Insurance program, can also serve as
strong evidence of the program's importance.
Title VI does not require recipients to remove language barriers
when English is an essential aspect of the program (such as providing
civil service examinations in English when the job requires a person to
communicate in English, see Frontera v. Sindell, 522 F.2d 1215 (6th
Cir. 1975)), or when there is another non-pretextual ``substantial
legitimate justification for the challenged practice'' and there is no
comparably effective alternative practice with less discriminatory
affects. Elston v. Talladega County Bd. of Educ., 997 F.2d 1394, 1407
(11th Cir. 1993); New York City Environmental Alliance v. Giuliani, 214
F.3d 65, 72 (2nd Cir. 2000) (plaintiffs failed to show less
discriminatory options available to accomplish defendant city's
legitimate goal of building new housing and fostering urban renewal).
However, DOL recipients are providing a service to assist individuals
in employment, and should consider that LEP individuals can be learning
English and another skill at the same time.\8\ For example, a recipient
may not need to make accessible certain health care practitioner
courses to LEP persons if the ability to be fully proficient in English
is a legitimate requirement of such training and the recipient has made
a legitimate determination that a LEP person would not be eligible to
work in the field in the local job market and at the level for which
the training is targeted. However, in order for such determinations to
be legitimate, recipients should conduct an objective analysis and not
rely on stereotypes or anecdotal evidence regarding level of English
proficiency required for such employment, and should consider the
impact that participation in English-as-a-Second-Language courses may
have on the ability of the LEP person to utilize the training.
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\8\ Consistent with footnote 2, supra, a consideration of this
factor should not be construed as requiring DOL recipients to create
new programs under this Guidance.
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(4) The Resources Available to the Recipient and Costs
A recipient's level of resources and the costs that would be
imposed on it may have an impact on the nature of the steps it should
take in providing language services. Smaller recipients with more
limited budgets are not expected to provide the same level of language
services as are larger recipients with larger budgets. In addition,
``reasonable steps'' may cease to be reasonable when the costs imposed
substantially exceed the benefits. DOL has determined that costs
associated with providing meaningful access to LEP persons are
considered allowable program costs. This is consistent with the
discussion of administrative and program costs under Title I of WIA
found in 20 CFR 667.220.
Resource and cost issues, however, can often be reduced by
technological advances; the sharing of language assistance materials
and services among and between recipients, advocacy groups, and federal
grant agencies; and reasonable business practices. Where appropriate,
training bilingual staff to act as interpreters and translators,
information sharing through industry groups, telephonic and video
conferencing interpretation services, pooling resources and
standardizing documents to reduce translation needs, using qualified
translators and interpreters to ensure that documents need not be
``fixed'' later and that inaccurate interpretations do not cause delay
or other costs, centralizing interpreter and translator services to
achieve economies of scale; or, the formalized use of qualified
community volunteers, for example, may help reduce costs.\9\ Recipients
should carefully explore the most cost-effective means of delivering
competent and accurate language services before limiting services due
to resource concerns. Large entities and those entities serving a
significant number or proportion of LEP persons should ensure that
their resource limitations are well-substantiated before using this
factor as a reason to limit language assistance. Such recipients may
find it useful to be able to articulate, through documentation or in
some other reasonable manner, the process used for determining that
language services would be limited based on resources or costs.
---------------------------------------------------------------------------
\9\ Small recipients with limited resources may find that
entering into a bulk telephonic interpretation service contract will
prove cost effective.
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This four-factor analysis necessarily implicates the ``mix'' of LEP
services required. Recipients have two main ways to provide language
services: Oral interpretation either in person or via a telephone
interpretation service (hereinafter ``interpretation'') and written
translation (hereinafter ``translation''). Oral interpretation can
range from on-site interpreters for critical services provided to a
high volume of LEP persons to access through commercially-available
telephonic interpretation services. Written translation, likewise, can
range from translation of an entire document to translation of a short
description of the document. In some cases, language services should be
made available on an expedited basis while in others the LEP individual
may be referred to another office of the recipient for language
assistance.
The correct mix should be based on what is both necessary and
reasonable in light of the four-factor analysis. For instance, a One-
Stop Career Center in a largely Hispanic neighborhood may need
immediate oral interpreters available and should give serious
consideration to hiring some bilingual staff. (Of course, many
recipients have already made such arrangements.) There may be
circumstances where the importance and nature of the activity and
number or proportion and frequency of contact with LEP persons may be
low and the costs and resources needed to provide language services may
be high.
VI. Selecting Language Assistance Services
Regardless of the type of language service provided, for both oral
and written language services, quality and accuracy of the language
service is critical in order to avoid serious consequences to the LEP
person and to the recipient.
A. Oral Language Services (Interpretation)
Interpretation is the act of listening to something in one language
(source language) and orally translating it into another language
(target language).
[[Page 32296]]
Where interpretation is needed and is reasonable, recipients should
consider some or all of the options discussed below for providing
competent interpreters in a timely manner.
Competence of Interpreters. When providing oral assistance,
recipients should ensure competency of the language service providers,
no matter which of the following strategies are used. Competency
requires more than self-identification as bilingual. Some bilingual
staff and community volunteers, for instance, may be able to
communicate effectively in a language other than English when
communicating information directly in that language, but may not be
competent to interpret in and out of English. Likewise, they may not be
able to do written translations.
Competency to interpret, however, does not necessarily mean formal
certification as an interpreter, although certification is helpful.
When using interpreters, recipients should ensure that interpreters:
[sbull] Demonstrate proficiency and ability to communicate
information accurately in both English and in the other language and be
able to identify and employ the appropriate mode of interpreting (e.g.,
consecutive, simultaneous, summarization, or sight translation); \10\
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\10\ Consecutive interpretation is interpretation of sentences/
phrases immediately after they are spoken, where the original
speaker interrupts the presentation to permit the interpretation.
Simultaneous interpretation (sometimes referred to as UN-type
translations) involves interpretation occurring at the same time as
the original spoken text, where the original speaker does not stop
or interrupt their presentation to permit the interpretation.
Summarization involves an interpreter listening to the original
speaker in another language and then summarizing the essence of what
was said, not what was actually said. Summary interpretations are
generally disfavored by professional interpreters or translators.
Sight translation involves the translation of written text/documents
into spoken text based on a visual review of the original form.
---------------------------------------------------------------------------
[sbull] Have knowledge in both languages of any specialized terms
or concepts peculiar to the recipient's program or activity and of any
particularized vocabulary and phraseology used by the LEP person; \11\
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\11\ Many languages have ``regionalisms,'' or differences in
usage. For instance, a word that may be understood to mean something
in Spanish for someone from Cuba may not be so understood by someone
from Mexico. In addition, because there may be languages that do not
have an appropriate direct interpretation of some programmatic or
legal terms, the interpreter should be so aware and be able to
provide the most effective interpretation. The interpreter should
likely make the recipient aware of such an issue so that the
interpreter and the recipient can then develop a consistent and
appropriate set of descriptions of these terms in the target
language that can be used in future encounters.
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[sbull] Understand and follow confidentiality and impartiality
rules to the same extent the recipient employee for whom they are
interpreting and/or to the extent their position requires; and
[sbull] Understand and adhere to their role as interpreters without
deviating into a role as counselor, legal advisor, or other roles
(particularly in administrative hearings, such as UI appeals hearings).
Some recipients, such as those that conduct administrative
hearings, may have additional self-imposed requirements for
interpreters. Where individual rights depend on precise, complete, and
accurate interpretation or translations, particularly in the context of
administrative hearings, the use of certified interpreters is strongly
encouraged.\12\ Where such proceedings are lengthy, the interpreter
will likely need breaks and team interpreting may be appropriate to
ensure accuracy and to prevent errors caused by mental fatigue of
interpreters.
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\12\ For those languages in which no formal accreditation or
certification currently exists, recipients should consider a formal
process for establishing the credentials of the interpreter.
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The quality and accuracy of language services is part of the
appropriate analysis of LEP services required. For example, the quality
and accuracy of language services in a UI appeals hearing or safety and
health training, for example, must be extraordinarily high, while the
quality and accuracy of language services in providing optional career
planning tools, such as ``tests'' that evaluate the type or style of
work for which a person might be suited, need to be accurately
translated, but may not need to meet the same exacting standards.
Finally, when interpretation is needed and is reasonable, it should
be provided in a timely manner. To be meaningfully effective, language
assistance should be timely. While there is no single definition for
``timely'' that is applicable to all types of interactions at all times
by all recipients, one clear guide is that the language assistance
should be provided at a time and place that avoids the effective denial
or the imposition of an undue burden on or delay in important rights,
benefits, or services to the LEP person. For example, when the
timeliness of services is important, such as with certain activities of
DOL recipients providing income security, health, and safety services,
and when important programmatic rights, such as eligibility for UI
benefits, are at issue, a recipient would likely not be providing
meaningful access if it had one bilingual staff person available one
day a week to provide the service. Such conduct would likely result in
delays for LEP persons that would be significantly greater than those
for English proficient persons. Conversely, where access to or exercise
of a service, benefit, or right is not effectively precluded by a
reasonable delay, language assistance can likely be delayed for a
reasonable period.
Hiring Bilingual Staff. When particular languages are encountered
often, hiring bilingual staff offers one of the best, and often most
economical, options. Recipients can, for example, fill public contact
positions, such as One-Stop Career Center receptionists or UI claims
examiners, with staff who are bilingual and competent to communicate
directly with LEP persons in the appropriate language. If bilingual
staff is also used to interpret between English speakers and LEP
persons, or to orally interpret written documents from English into
another language, they should be competent in the skill of
interpreting. Being bilingual does not necessarily mean that a person
has the ability to interpret. In addition, there may be times when the
role of the bilingual employee may conflict with the role of an
interpreter (for instance, a bilingual hearings examiner would probably
not be able to perform effectively the role of an administrative
hearing interpreter and hearings examiner at the same time, even if the
hearings examiner were a qualified interpreter). Effective management
strategies, including any appropriate adjustments in assignments and
protocols for using bilingual staff, can ensure that bilingual staff is
fully and appropriately utilized. When an analysis of the four factors
leads to a conclusion that the provision of services through bilingual
staff is not a reasonable step, the recipient still should consider
other options for providing meaningful access to LEP persons.
Hiring Staff Interpreters. Hiring interpreters may be most helpful
where there is a frequent need for interpreting services in one or more
languages. Depending on the facts, sometimes it may be necessary and
reasonable to provide on-site interpreters to communicate effectively
with LEP persons.
Contracting for Interpreters. Contract interpreters may be a cost-
effective option when there is no regular need for a particular
language skill. In addition to commercial and other private providers,
many community-based organizations provide interpretation services for
particular languages. Contracting with and providing training regarding
the recipient's programs and
[[Page 32297]]
processes to these organizations can be a cost-effective option for
providing language services to LEP persons from those language groups.
Using Telephone Interpreter Lines. Telephone interpreter service
lines often offer speedy interpreting assistance in many different
languages. They may be particularly appropriate where the mode of
communicating with an English proficient person would also occur over
the phone. Although telephonic interpretation services are useful in
many situations, it is important to ensure that, when using such
services, the interpreters are competent to interpret any technical or
legal terms specific to a particular program that may be important to
the conversation. Nuances in language and non-verbal communication can
often assist an interpreter and cannot be recognized over the phone.
Video teleconferencing may sometimes help to resolve this issue. In
addition, where documents are being discussed, it is important to give
telephonic interpreters adequate opportunity to review the documents
prior to the discussion. Any other logistical problems should also be
anticipated.
Using Community Volunteers. In addition to consideration of
bilingual staff, staff interpreters, or contract interpreters (either
in-person or by telephone) as options to ensure meaningful access by
LEP persons, use of recipient-coordinated community volunteers, working
with, for instance, community-based organizations may provide a cost-
effective supplemental language assistance strategy under appropriate
circumstances. They may be particularly useful in providing language
access for a recipient's less critical programs and activities. To the
extent the recipient relies on community volunteers, it is often best
to use volunteers who are trained in the information or services of the
program and can communicate directly with LEP persons in their
language. Just as with all interpreters, community volunteers used to
interpret between English speakers and LEP persons, or to orally
translate documents, should be competent in the skill of interpreting
and knowledgeable about applicable confidentiality and impartiality
rules. Recipients should consider formal arrangements with community-
based organizations that provide volunteers to address these concerns
and to help ensure that services are available on a regular basis.
Use of Family Members, Friends, or Other Community Members as
Interpreters. Although recipients should not plan to rely on a LEP
person's family members, friends, or other informal interpreters to
provide language assistance services to important programs and
activities, where LEP persons so desire, they should be permitted to
use, at their own expense, interpreters of their own choosing (whether
a professional interpreter, family member, friend, or other informal
interpreter) in place of or as a supplement to the free language
services expressly offered by the recipient. LEP persons may feel more
comfortable when a trusted family member, friend, or other community
member acts as an interpreter. In addition, in exigent circumstances
that are not reasonably foreseeable, temporary use of interpreters not
provided by the recipient may be necessary. However, with proper
planning and implementation, recipients should be able to avoid most of
these situations.
Recipients, however, should take special care to ensure that
family, friends, and other informal interpreters are appropriate in
light of the circumstances and subject matter of the program, service
or activity. The recipients' own interests in accurate interpretation
should also be considered when deciding whether family, friends, and
other informal interpreters are appropriate. In many circumstances,
family members (especially children), friends, or other informal
interpreters are not competent to provide quality and accurate
interpretations. Issues of confidentiality, privacy, or conflict of
interest may also arise. LEP individuals may feel uncomfortable
revealing or describing sensitive, confidential, or potentially
embarrassing family, employment history, or financial information to a
family member, friend, or member of the local community. For these
reasons, when oral language services are necessary, recipients should
generally offer competent interpreter services free of cost to the LEP
person. While issues of competency, confidentiality, and conflict of
interest in the use of family members (especially children), friends,
or other informal interpreters often make their use inappropriate, the
use of these individuals as interpreters may be an appropriate option
where proper application of the four factors would lead to a conclusion
that recipient-provided services are not necessary. An example of this
is an optional ``Dress for Success'' workshop offered by a One-Stop
Career Center where there is such a small number and/or proportion of
LEP persons eligible to be served and there is no available bilingual
staff, volunteers, or interpreters available. There, the importance and
nature of the activity may be relatively low and unlikely to implicate
issues of confidentiality, conflict of interest, or the need for
accuracy. In addition, the resources needed and costs of providing
language services may be high. In such a setting, a LEP person's use of
family, friends, or others may be appropriate.
If a LEP person voluntarily chooses to provide his or her own
interpreter, a recipient should consider whether a record of that
choice and of the recipient's offer of assistance should be kept. Where
precise, complete, and accurate interpretations or translations of
information and/or testimony are critical for adjudicatory or legal
reasons, or where the competency of the LEP person's interpreter is not
established, a recipient might decide to provide its own, independent
interpreter, even if a LEP person wants to use his or her own
interpreter as well. Extra caution should be exercised when the LEP
person chooses to use a minor as the interpreter. While the LEP
person's decision should be respected, there may be additional issues
of competency, confidentiality, or conflict of interest when the choice
involves using children to interpret. The recipient should take care to
ensure that the LEP person's choice is voluntary, that the LEP person
is aware of the possible problems if the preferred interpreter is a
minor child, and that the LEP person knows that a competent interpreter
could be provided by the recipient at no cost.
B. Written Language Services (Translation)
Translation is the replacement of a written text from one language
(source language) into an equivalent written text in another language
(target language).
What Documents Should be Translated? After applying the four-factor
analysis, a recipient may determine that an effective LEP plan for its
particular program or activity includes the translation of vital
written materials into the language of each frequently-encountered LEP
group eligible to be served and/or likely to be affected by the
recipient's program. Such written materials could include:
[sbull] Applications to participate in a recipient's program or
activity or to receive recipient benefits or services;
[sbull] Written tests that do not assess English language
competency, but test competency for a particular license, job,
[[Page 32298]]
or skill for which English language proficiency is not required; \13\
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\13\ Test translation raises technical testing issues and needs
to be done in an appropriate manner if the test is to retain
validity and reliability. Some tests are available in different
languages. For example, the GED is available in Spanish and French,
as well as English. So recipients may be able to check for the
availability of tests in other languages from the test developer.
Where no test is available in a language and translation is not
immediately possible, it might be more appropriate to evaluate a LEP
individual with another test or procedure that does not
inappropriately implicate their limited English skills.
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[sbull] Consent and complaint forms;
[sbull] List of partners at a One-Stop Career Center and services
provided;
[sbull] Letters containing important information regarding
participation in a program or activity;
[sbull] Notices pertaining to the reduction, denial or termination
of services or benefits and of the right to appeal such actions;
[sbull] Notices that require a response from beneficiaries;
[sbull] Information on the right to file complaints of
discrimination;
[sbull] Information on the provision of services to individuals
with disabilities;
[sbull] State wage and hour and safety and health enforcement and
information materials;
[sbull] Notices advising LEP persons of the availability of free
language assistance; and
[sbull] Other outreach materials.
Whether or not a document (or the information it provides and/or
solicits) is ``vital'' may depend upon the importance of the program,
information, encounter, or service involved, and the consequence to the
LEP person if the information in question is not provided accurately or
in a timely manner. For instance, a description of books contained in
the resource room of a One-Stop Career Center would not generally be
considered vital, whereas applications for Unemployment Insurance or
information about safety and health requirements could be considered
vital. Where appropriate, recipients are encouraged to create a plan
for consistently determining, over time and across its various
activities, what documents are ``vital'' to the meaningful access of
the LEP populations they serve.
Classifying a document as vital or non-vital is sometimes
difficult, especially in the case of outreach materials like brochures
or other information on rights and services. Awareness of rights or
services is an important part of ``meaningful access.'' Lack of
awareness that a particular program, right, or service exists may
effectively deny LEP individuals meaningful access. Thus, where a
recipient is engaged in community outreach activities in furtherance of
its programs or services, it should regularly assess the needs of the
populations frequently encountered or affected by the program or
service to determine whether certain critical outreach materials should
be translated. Community organizations may be helpful in determining
what outreach materials may be most helpful to translate. In addition,
the recipient should consider whether translations of outreach material
may be made more effective when done in tandem with other outreach
methods, including utilizing the ethnic media, schools, faith-based and
other community organizations to spread the message.
Sometimes a document includes both vital and non-vital information.
This may be the case when the document is very large. It may also be
the case when the title and a phone number for obtaining more
information on the contents of the document in frequently-encountered
languages other than English is critical, but the document is sent out
to the general public and cannot reasonably be translated into many
languages. Thus, vital information may include, for instance, the
provision of information in appropriate languages other than English
regarding where a LEP person might obtain an interpretation or
translation of the document.
Into What Languages Should Documents be Translated? The languages
spoken by the LEP individuals with whom the recipient has contact
determine the languages into which vital documents should be
translated. A distinction should be made, however, between languages
that are frequently encountered by a recipient and less commonly-
encountered languages. Many recipients serve communities in large
cities or across the country or operate web-based, self-service systems
as an adjunct to their in-person delivery systems that also have a
regional or national reach. They regularly serve LEP persons who speak
dozens and sometimes over 100 different languages. To translate all
written materials into all of those languages is unrealistic. Although
recent technological advances have made it easier for recipients to
store and share translated documents, such an undertaking would incur
substantial costs and require substantial resources. Nevertheless,
well-substantiated claims of lack of resources to translate all vital
documents into dozens of languages do not necessarily relieve a
recipient of the obligation to translate those documents into at least
several of the more frequently-encountered languages and to set
benchmarks for continued translations into the remaining languages over
time. As a result, the extent of a recipient's obligation to provide
written translations of documents should be determined by the recipient
on a case-by-case basis, looking at the totality of the circumstances
in light of the four-factor analysis. Because translation is a one-time
expense, consideration should be given to whether the upfront cost of
translating a document (as opposed to oral interpretation) should be
amortized over the likely lifespan of the document when applying this
four-factor analysis. The length of a document's lifespan and the
volume of new documents requiring translation may also be a factor in
this determination. For example, in transaction-based self-service
websites, such as labor exchange/job matching, the lifespan of a
typical document such as a job order may only be 30 days and the volume
of such documents may easily number 1,000 or more each day. In such
circumstances, depending on the four factors, recipients might consider
translating only certain portions of such documents and/or providing
information in appropriate languages on how to obtain free language
assistance, if the technology allows.
Competence of Translators. As with oral interpreters, translators
of written documents should be competent. Many of the same
considerations apply. However, the skill of translating is very
different from the skill of interpreting, and a person who is a
competent interpreter may or may not be competent to translate.
Particularly where vital documents are being translated, competence
can often be achieved by use of certified translators. Certification or
accreditation may not always be possible or necessary.\14\ Competence
can often be ensured by having a second, independent translator
``check'' the work of the primary translator. Alternatively, one
translator can translate the document, and a second, independent
translator could translate it back into English to check that the
appropriate meaning has been conveyed. This is called ``back
translation.''
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\14\ For those languages in which no formal accreditation
currently exists, a particular level of membership in a professional
translation association can provide some indicator of
professionalism.
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Translators should understand the expected reading level of the
audience and, where appropriate, have
[[Page 32299]]
fundamental knowledge about the target language group's vocabulary and
phraseology. Sometimes direct translation of materials results in a
translation that is written at a much more difficult level than the
English language version or has no relevant equivalent meaning.\15\
Community organizations may be able to help consider whether a document
is written at a good level for the audience. Likewise, consistency in
the words and phrases used to translate terms of art, legal, or other
technical concepts helps avoid confusion by LEP individuals and may
reduce costs. Creating or using already-created glossaries of commonly-
used terms may be useful for LEP persons and translators and cost
effective for the recipient. Providing translators with examples of
previous accurate translations of similar material by the recipient,
other recipients, or federal agencies may be helpful.
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\15\ For instance, there may be languages that do not have an
appropriate direct translation of some programmatic or legal terms
and the translator should be able to provide an appropriate
translation. The translator should likely also make the recipient
aware of this. Recipients can then work with translators to develop
a consistent and appropriate set of descriptions of these terms in
the language that can be used again, when appropriate. Recipients
will find it more effective and less costly if they try to maintain
consistency in the words and phrases used to translate terms of art
and legal or other technical concepts. Creating or using already-
created glossaries of commonly used terms may be useful for LEP
persons and translators and cost-effective for the recipient.
Providing translators with examples of previous translations of
similar material by the recipient, other recipients, or federal
agencies may be helpful.
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The quality and accuracy of language services is part of the
appropriate analysis of LEP services required. For instance, documents
that are simple and have no legal or other consequence for LEP persons
who rely on them may use translators that are less skilled than
important documents with legal or other information upon which reliance
has important consequences (including, e.g., information or documents
of DOL recipients regarding the provision of income security benefits,
such as UI, and health and safety training). The permanent nature of
written translations, however, imposes additional responsibility on the
recipient to ensure that the quality and accuracy permit meaningful
access by LEP persons.
VII. Elements of an Effective Plan on Language Assistance for LEP
Persons
After completing the four-factor analysis and deciding what
language assistance services are appropriate, a recipient should
develop an implementation plan to address the identified needs of the
LEP populations they serve.\16\ Recipients have considerable
flexibility in developing this plan. A written plan, while not a
requirement, can be an important tool for a recipient. The development
and maintenance of a periodically-updated written plan on language
assistance for LEP persons (``LEP plan'') for use by recipient
employees serving the public will likely be the most appropriate and
cost-effective means of documenting compliance and providing a
framework for the provision of timely and reasonable language
assistance. Moreover, such written plans would likely provide
additional benefits to a recipient's managers in the areas of training,
administration, planning, and budgeting. These benefits should lead
most recipients to document in a written LEP plan their language
assistance services and how staff and LEP persons can access those
services. Despite these benefits, certain DOL recipients, such as
recipients serving very few LEP persons and recipients with very
limited resources, may choose not to develop a written LEP plan.
However, the absence of a written LEP plan does not obviate the
underlying obligation to ensure meaningful access by LEP persons to a
recipient's program or activities. Accordingly, in the event that a
recipient elects not to develop a written plan, it should consider
alternative ways to articulate in some other reasonable manner a plan
for providing meaningful access. Entities having significant contact
with LEP persons, such as schools, faith-based organizations, community
groups, and groups working with new immigrants, can be very helpful in
providing important input into this planning process from the
beginning.
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\16\ Certain recipients of DOL financial assistance are
required, per 29 CFR 37.54, to establish and adhere to a Methods of
Administration (MOA). Per the regulations, MOAs must be in writing,
reviewed and updated every two years as required by Section 37.55,
and, at a minimum, describe how the state programs and recipients
have satisfied the requirements of regulations, including those
found at Sections 37.35 and 37.42.
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The following five elements may be helpful in designing a LEP plan
and are typically part of an effective implementation plan.
(1) Identifying LEP Individuals Who Need Language Assistance
The first two factors in the four-factor analysis require an
assessment of the number or proportion of LEP individuals eligible to
be served or encountered and the frequency of encounters. This requires
a recipient to identify LEP persons with whom it has contact.
One way to determine the language of communication is to use
language identification cards (or ``I speak cards''), which invite LEP
persons to identify their language needs to staff. Such cards, for
instance, might read ``I speak Spanish'' in both Spanish and English,
``I speak Vietnamese'' in both English and Vietnamese, etc. To reduce
costs of compliance, the federal government has made a set of these
cards available on the Internet. The Census Bureau ``I speak cards''
can be found and downloaded at http://www.usdoj.gov/crt/cor/13166.htm.
When records are normally kept of past interactions with members of the
public, the language of the LEP person can be included as part of the
record. In addition to helping employees identify the language of LEP
persons they encounter, this process will help in future applications
of the first two factors of the four-factor analysis. In addition,
posting notices in commonly encountered languages notifying LEP persons
of the availability of language assistance will encourage them to self-
identify.
Recipients should also consider circumstances in which, although
the participant and/or beneficiary can communicate effectively in
English, assistance may be needed when interacting with other pertinent
individuals. For example, if a youth under the age of eighteen needs a
parent's signature to participate in a summer employment program,
language assistance may be necessary to provide information and obtain
the necessary permission. Recipients should also be aware of external
circumstances that may impact the number of persons (LEP or otherwise)
seeking government assistance. For example, recipients may experience
an ebb and flow of persons working in agricultural jobs depending on
the season, the success of harvest, and other factors such as weather
(droughts or floods). Changes in the economy may disproportionately
force low-income individuals (as LEPs tend to be) to turn to government
programs for assistance.
(2) Language Assistance Measures
An effective LEP plan would likely include information about the
ways in which language assistance will be provided. For instance,
recipients may want to include information on at least the following:
[sbull] Types of language services available;
[sbull] How staff can obtain those services;
[sbull] How to respond to LEP callers;
[[Page 32300]]
[sbull] How to respond to written communications from LEP persons;
[sbull] How to respond to LEP individuals who have in-person
contact with recipient staff; and
[sbull] How to ensure competency of interpreters and translation
services.
(3) Training Staff
Staff should know their obligations to provide meaningful access to
information and services for LEP persons. An effective LEP plan would
likely include training to ensure that:
[sbull] Staff know about LEP policies and procedures; and
[sbull] Staff having contact with the public are trained to work
effectively with in-person and telephone interpreters.
Recipients may want to include this training as part of the
orientation for new employees. It is important to ensure that all
employees in public contact positions are properly trained. Recipients
have flexibility in deciding the manner in which the training is
provided. The more frequent the contact with LEP persons, the greater
the need will be for in-depth training. Staff with little or no contact
with LEP persons may only have to be aware of the LEP plan. However,
management staff, even if they do not interact regularly with LEP
persons, should be fully aware of and understand the plan so they can
reinforce its importance and ensure its implementation by staff.
(4) Providing Notice to LEP Persons
Once a recipient has decided, based on the four factors, that it
will provide certain language services, it is important for the
recipient to let LEP persons know that those services are available and
that they will be offered free of charge. Recipients should provide
notice of the availability of language assistance services in
language(s) that LEP persons will understand. Examples of notification
that recipients should consider include:
[sbull] Posting signs in intake areas and other entry points. When
language assistance is needed to ensure meaningful access to
information and services, it is important to provide notice in
appropriate languages in intake areas or initial points of contact so
that LEP persons can learn how to access those language services. This
is particularly true in areas with high volumes of LEP persons seeking
access to certain workforce and income security programs, services or
activities run by DOL recipients. For instance, signs in One-Stop
Career Centers could state that free language assistance is available.
The signs should be translated into the most common languages
encountered. They should explain how to obtain the language help.\17\
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\17\ The Social Security Administration has made such signs
available at: http://www.ssa.gov/multilanguage/langlist1.htm. These
signs could be modified for recipient use.
---------------------------------------------------------------------------
[sbull] Stating in outreach documents that language services are
available from the recipient. Announcements could be in, for instance,
brochures, booklets, and in other outreach and recruitment information.
These statements should be translated into the most common languages
and could be ``tagged'' onto the front of common documents.
[sbull] Working with community-based organizations and other
stakeholders to inform LEP individuals of the recipients' programs and
activities, including the availability of language assistance services.
[sbull] Using a telephone voice mail menu. The menu could be in the
most common languages encountered. It should provide information about
available language assistance services and how to access them.
[sbull] Including notices in local newspapers in languages other
than English.
[sbull] Airing notices on non-English language radio and television
stations about the availability of language assistance and how to
access it.
[sbull] Making presentations and/or posting notices at schools,
faith-based and other community organizations.
(5) Monitoring and Updating the LEP Plan
Recipients should, where appropriate, have a process for
determining, on an ongoing basis, whether new documents, programs,
services, and activities need to be made accessible for LEP
individuals, and they may want to provide notice of any changes in
services to the LEP public and to employees. In addition, recipients
should consider whether changes in demographics, types of services, or
other factors require annual reevaluation of LEP plans. Less frequent
reevaluation may be more appropriate where demographics, services, and
needs are more static. One good way to evaluate the LEP plan is to seek
feedback from the community. In their reviews, recipients may want to
consider assessing changes in:
[sbull] Current LEP populations in service area or population
affected or encountered;
[sbull] Frequency of encounters with LEP language groups;
[sbull] Nature and importance of activities to LEP persons;
[sbull] Availability of resources, including technological advances
and sources of additional resources, and the costs imposed;
[sbull] Whether existing assistance is meeting the needs of LEP
persons;
[sbull] Whether staff knows and understands the LEP plan and how to
implement it;
[sbull] Legislation or program requirements governing the
recipient's program or activity; and
[sbull] Whether identified sources for assistance are still
available and viable.
In addition to these five elements, effective plans set clear
goals, management accountability, and opportunities for community input
and planning throughout the process.
VIII. Voluntary Compliance Efforts
The goal for Title VI and Title VI regulatory enforcement is to
achieve voluntary compliance. The requirement to provide meaningful
access to LEP persons is enforced and implemented by DOL through the
procedures identified in the Title VI and Section 188 regulations.
These procedures include complaint investigations, compliance reviews,
efforts to secure voluntary compliance, and technical assistance.
DOL's Civil Rights Center (CRC) enforces Title VI and Section 188
through the procedures identified in the regulations in 29 CFR parts 31
and 37. The regulations state that CRC will investigate any complaint,
report or other information that alleges or indicates possible
noncompliance with Title VI and Section 188. If the investigation
results in a finding of compliance, CRC will inform the recipient in
writing of this determination, including the basis for the
determination. If the investigation results in a finding of
noncompliance, CRC will inform the recipient of the noncompliance in a
Letter of Findings that sets out the areas of noncompliance and the
steps that must be taken to correct the noncompliance. At this stage,
CRC will attempt to secure voluntary compliance through informal means.
If the matter cannot be resolved informally, compliance may be
effectuated through (a) the termination of federal assistance after the
recipient has been given an opportunity for an administrative hearing;
(b) referral to DOJ for injunctive relief or other enforcement
proceedings; or (c) any other means authorized by law. CRC has a legal
obligation to seek voluntary compliance in resolving cases and cannot
seek the termination of funds until it has engaged in voluntary
compliance efforts and has determined that compliance cannot be secured
voluntarily.
[[Page 32301]]
CRC engages in voluntary compliance efforts and provides technical
assistance to recipients at all stages. During efforts to secure
voluntary compliance, CRC will propose reasonable timetables for
achieving compliance and will consult with and assist recipients in
exploring cost effective ways of coming into compliance by increasing
awareness of emerging technologies and by sharing information on how
other recipients have addressed the language needs of diverse
populations. In determining a recipient's compliance with Title VI and
Section 188, CRC's primary concern is to ensure that the recipient's
policies and procedures overcome barriers resulting from language
differences that would deny LEP persons meaningful opportunities to
participate in and access programs, services and benefits. A
recipient's appropriate consideration of the methods and options
discussed in this Guidance will be viewed by CRC as evidence of a
recipient's willingness to comply with its Title VI and Section 188
obligations.
While all recipients must work toward building systems that will
ensure access for LEP individuals, DOL acknowledges that the
implementation of a comprehensive system to serve LEP individuals is a
process and that a system will evolve over time as it is implemented
and periodically reevaluated. As recipients take reasonable steps to
provide meaningful access to federally assisted programs and activities
for LEP persons, DOL will look favorably on intermediate steps
recipients take that are consistent with this Guidance, and that, as
part of a broader implementation plan or schedule, move their service
delivery systems toward providing full access to LEP persons. This does
not excuse noncompliance but instead recognizes that full compliance in
all areas of a recipient's activities and for all potential language
minority groups may reasonably require a series of implementing actions
over a period of time. However, in developing any phased implementation
schedule, DOL recipients should ensure that the provision of
appropriate assistance for significant LEP populations or with respect
to activities having a significant impact on the health, safety, legal
rights, or livelihood of beneficiaries is addressed first. Recipients
are encouraged to document their efforts to provide LEP persons with
meaningful access to federally assisted programs and activities.
Appendix--Application to Specific Types of Recipients
This Appendix provides examples of how the meaningful access
requirement of the Title VI and Section 188 of WIA regulations
applies to state workforce agencies and other recipients of DOL
financial assistance. These examples highlight best practices and
ideal approaches to serving LEP individuals in a variety of
situations. It is important to note that not all recipients may find
these approaches useful or necessary once they apply the four-factor
analysis to their individual situation. This Appendix also suggests
ways that DOL recipients can apply the four-factor analysis to a
range of encounters with the public as the responsibility for
providing language services differs depending on the program or
activity. The four factors are:
[sbull] The number or proportion of LEP persons served or
encountered in the eligible service population;
[sbull] The frequency with which LEP individuals come in contact
with the program;
[sbull] The nature and importance of the program, activity, or
service provided by the program; and
[sbull] The resources available to the recipient and costs.
This Appendix is also designed to help DOL recipients identify
the population to be considered when assessing the types of language
services to provide. It then offers guidance and examples on how to
apply the four-factor analysis to specific requirements of DOL-
assisted programs and services, such as:
[sbull] Receiving and responding to requests for information and
services;
[sbull] Applications for benefits such as trade and Unemployment
Insurance benefits;
[sbull] Adjudications;
[sbull] Notifications of decisions;
[sbull] Intake, orientation and assessment;
[sbull] Training services; and
[sbull] Community outreach.
Appendix--Application of LEP Guidance for Specific Types of DOL
Recipients
While a wide range of entities receive federal financial
assistance through DOL, most of DOL's assistance is awarded to
Governors or local chief elected officials in the form of formula or
competitive grants for the provision of training, including job
training, and income support programs. This Appendix provides
examples to demonstrate how DOL recipients might apply the four-
factor analysis. The examples in this Appendix are not meant to be
exhaustive. The four-factor analysis requires a balancing, given all
of the facts. Each different situation will present some unique
aspects. The examples are intended only to show how the four-factor
analysis may be applied in some situations.
The requirements of the Title VI and Section 188 regulations, as
clarified by the LEP Guidance, supplement, but do not supplant,
other statutory or regulatory provisions that may require LEP
services. Rather, the LEP Guidance clarifies the obligation under
both the Title VI and Section 188 regulations to address, in
appropriate circumstances and in a reasonable manner, the language
assistance needs of LEP individuals.
For the vast majority of the public, exposure to federally-
assisted job training or income support programs includes applying
for and receiving Unemployment Insurance (UI) benefits or conducting
job search activities through the One-Stop Career System. For a
smaller number, exposure includes participation in a job training
program under WIA or the Trade Act of 1974 including Trade
Adjustment Assistance (TAA). The common thread running through these
and other interactions with the federally-assisted workforce system
is the exchange of information and services. LEP individuals'
encounters with One-Stop Career Centers, including UI Call Centers,
are covered by Title VI because they are funded wholly or in part by
DOL. This Guidance focuses on the requirement that DOL recipients
communicate effectively with persons who are LEP to ensure that they
have meaningful access to the workforce investment system,
including, for example, understanding how to apply for job training
and/or UI benefits.
Many DOL recipients already provide language services in a wide
variety of circumstances. For example, in areas where significant
LEP populations reside, One-Stop Career Center staff may utilize
forms and notices in languages other than English and/or they may
employ bilingual front-line staff. Recipients' current practices can
form a strong basis for applying the four-factor analysis and
complying with Title VI and WIA Section 188 regulations.
In general, when providing language services, DOL recipients
may: (1) Make available the staff and materials necessary to supply
required language services; (2) choose to require an entity with
which they have contracted to provide the services; or (3) contract
with another entity to provide those services. Recipients have a
wide variety of options for providing interpreter and translation
services appropriate to the particular situation. Using bilingual
staff competent to interpret in person or over the phone is one
option. Additionally, particular recipients may enter into
agreements with local colleges and universities, interpreter
services, and/or community organizations to provide competent paid
or volunteer translators.
1. General Principles
The touchstone of the four-factor analysis is reasonableness
based upon the specific purposes, needs, and capabilities of the DOL
recipient and an appreciation of the nature and particular needs of
the LEP population served. Accordingly, the four-factor analysis
cannot provide a single uniform answer about how service to LEP
persons must be provided in all programs or activities in all
situations or to what extent such service need be provided.
Knowledge of local conditions and community needs is critical in
determining the type and level of language services needed. The
following general points should
[[Page 32302]]
assist DOL recipients in correctly applying the four-factor analysis
to the wide range of services provided in their particular
communities.
a. Permanent Versus Seasonal Populations
In assessing factor one, the number or proportion of LEP
individuals, DOL recipients should consider any temporary but
significant changes in a community's demographics. In many areas,
resident populations change over time or according to season. For
example, in some resort communities, populations swell during peak
vacation periods, many times exceeding the number of permanent
residents in the area. In other communities, primarily agricultural
areas, transient populations of agricultural workers require
increased workforce investment services during planting and harvest
seasons. This dynamic demographic ebb and flow can also dramatically
change the size and nature of the LEP community that is likely to
come into contact with workforce entities. Thus, workforce entities
may not want to limit their analysis to numbers and proportions of
permanent residents.
Example: A rural community has a permanent population of 30,000,
of which seven percent is Hispanic. Based on census data and on
information from the contiguous school district, only 15 percent of
the Hispanic population is estimated to be LEP. Thus, the total
estimated permanent LEP population is 315 persons or approximately
one percent of the total permanent population. Under the four-factor
analysis, a workforce entity could reasonably conclude that the
small number of LEP persons makes the translation of vital documents
and/or employment of bilingual staff unnecessary. However, during
the spring and summer planting and harvest seasons, the local
population swells to 40,000 due to the influx of seasonal
agricultural workers. Of this temporary population, about 75 percent
is Hispanic and about 50 percent of that number is LEP. According to
data supplied by the contiguous school district and a migrant worker
community group, during the planting and harvest seasons, the
community's LEP population increases to over ten percent of all
residents. In this case, a DOL recipient should consider whether it
is necessary to translate vital written documents into Spanish. In
addition, the predictability of contact during those seasons makes
it important for the community to review its interpretative services
to ensure meaningful access for LEP individuals.
b. Target Audiences
For most workforce investment services, the target audience is
defined in geographic rather than programmatic terms. However, some
services may be targeted to reach a particular audience (e.g., out-
of-school youth or migrant and seasonal farmworkers). Also, within
the larger geographic area covered by a workforce entity, certain
areas or neighborhoods may have concentrations of LEP persons. In
these cases, even if the overall number or proportion of LEP
individuals in the area is low, the frequency of contact may be
higher for certain areas or programs. Thus, the second factor,
frequency of contact, should be considered in light of the specific
program or the geographic area served.
Example: A community-based organization (CBO) is partnering with
a local One-Stop Career Center to provide services to dislocated
workers who have lost their jobs due to several recent textile plant
closures. The LEP population of the community is estimated at only
three percent. However, the LEP population of the workers dislocated
by the closures is 35 percent, the vast majority of whom speak
Vietnamese. As the target population for this CBO is confined to the
dislocated workers, the number or proportion of LEP persons in the
eligible service population would be calculated based on these
workers. The applicable LEP factor would be the frequency with which
LEP individuals come in contact with the program, which in this
instance would involve a much higher percentage of LEP individuals
than that of the general population. Further, because the Vietnamese
LEP population is concentrated in one or two main areas of the town,
the CBO should expect the frequency of contact with Vietnamese LEP
individuals, in general, to be quite high in those areas, and it
should apply the four-factor analysis accordingly with respect to
the services it provides.
c. Importance of Service/Information
DOL recipients play a critical role in providing workforce
services, income support, and health and safety training for many
Americans. UI, health and safety services provided through the
Occupational Safety and Health and Mine Safety and Health
Administrations, information and enforcement of State and local wage
and hour laws and other workers' rights enforcement issues taken on
by recipients, and employment services rank high on the critical/
non-critical continuum. However, this does not mean that information
about all services and activities performed by workforce entities
must be equally available in languages other than English. While
clearly important to the ultimate success of the workforce
investment system, certain activities do not have the same direct
impact on the provision of core workforce investment services. The
more important the program or activity or the greater the possible
consequences of the contact for LEP individuals, the more likely
language assistance services will be necessary.
Example: The Occupational Safety and Health Administration
(OSHA) and Mine Safety and Health Administration (MSHA) provide
grants to recipients to conduct safety and health training to
individuals employed in many dangerous occupations, such as
construction and mining. Much of the training involves learning how
to take precautions to avoid accidents or injuries while on the job.
Where individuals could sustain bodily harm if training is not
provided in an understandable language, the need for appropriate
communication is extremely high.
There may be some instances in which the four-factor analysis of
a particular portion of a recipient's program or activity leads to
the conclusion that language services are not currently required.
For instance, the four-factor analysis may not necessarily require
that an advanced level computer course be given in languages other
than English, if the language-related requirements for such an
employment path is such that few, if any, LEP persons would benefit
from the particular course even if it were made accessible to them
and even if they are in the process of learning English (see Section
V(3) above regarding such determinations), and if the other three
factors also weigh against providing the service. However, a
recipient may decide to provide other computer courses in languages
other than English given demographics of the area and the potential
benefit to the LEP population. Because the analysis is fact-
dependent, the same conclusion may not be appropriate with respect
to all computer courses or to other courses.
2. Applying the Four-Factor Analysis to the Full Spectrum of Services
While all workforce investment activities are important, the
four-factor analysis requires some prioritizing so that language
services are targeted where they are most needed depending on the
nature and importance of the particular service provided. Workforce
entities have a great deal of flexibility in determining how to best
address outreach to their LEP populations. In order to determine
what is reasonable under the four-factor analysis, consider that the
obligation to provide language services increases where the
importance of the activity is greater. Under this framework,
critical areas for language assistance would include applications
for UI or trade-related benefits and adjudications of issues
regarding benefits. Systems for receiving and addressing complaints
from the public are also important. Employment services are of great
importance for persons who are not currently employed. Community
outreach activities are hard to categorize and generally less
critical than other activities unless barriers to participation
(such as limited availability of language services) exist. With the
importance of community partnerships and involvement, the four-
factor analysis should be considered when evaluating the need for
language services with respect to these programs.
a. Receiving and Responding to Requests for Assistance
Taking reasonable steps to provide meaningful access to
workforce investment services will entail different things in
different communities. For instance, in areas with significant LEP
communities, some intake workers and claims examiners may need to be
bilingual and capable of accurately interpreting in high stress
situations. Recipients in areas with small LEP populations should
still have a plan for serving persons who are LEP, which may involve
a telephone interpretation service or include some other
accommodation short of hiring bilingual staff. Signs and telephone
voicemail systems should also be appropriate for the populations
served.
Example: A One-Stop Career Center in a large city has bilingual
staff that can interpret
[[Page 32303]]
the most frequently encountered languages. When LEP clients request
services in less frequently encountered languages, a commercial
telephone interpretation service is provided. Ten percent of the
city's population is LEP, and sixty percent of the LEP population
speaks Spanish. The One-Stop Career Center has many Spanish-speaking
staff and a few staff that speak other languages. Forms are
translated into Spanish. The recipient provides services to other
non-English-speaking clients using a language bank, comprised of
volunteers and bilingual staff employed by other Government entities
who are competent translators and/or interpreters. This example may
be one appropriate way of providing meaningful access for LEP
individuals.
Example: A small One-Stop Career Center is operated by a
recipient of DOL funds and located in an area where 15 percent of
the population speak Spanish and may be LEP. Seven percent of the
population in the service area speak various Chinese dialects and
may be LEP. The One-Stop Career Center uses competent community
volunteers to help translate vital outreach materials into Chinese
(which is one written language despite many dialects) and Spanish.
The One-Stop Career Center telephone system has a menu providing key
information, such as location, in English, Spanish, and two of the
most common Chinese dialects. Calls for immediate assistance are
handled by bilingual staff. The One-Stop Career Center has one
counselor and several volunteers fluent in Spanish and English. Some
volunteers are fluent in different Chinese dialects and in English.
The One-Stop Career Center works with community groups to access
interpreters in the several Chinese dialects that they encounter.
One-Stop Career Center staff train the community volunteers in the
intake process and the specialized vocabulary needed to explain the
services available. Volunteers sign confidentiality agreements. The
One-Stop Career Center is looking for a grant to increase its
language capabilities despite its limited resources. There have been
no complaints of delayed or denied service on account of language
barriers. This example may be one appropriate way of providing
meaningful access for LEP individuals.
b. Delivering Labor Exchange Services
Currently, labor exchange services are being delivered through a
wide variety of media, both electronic and paper-based. However,
state and local workforce agencies are increasingly relying on
Internet-based, self-help models of service delivery. While this
method of service has the potential of benefiting the greatest
number of job seekers while minimizing staff resources, key segments
of the population are potentially excluded. Persons with limited
language and literacy skills often have extra difficulty accessing
services through the self-help, Internet-based systems. As such, a
service plan is needed to develop alternative delivery systems. This
can be done through incorporating one or more of the following
strategies: (1) Having certain information translated; (2)
incorporating a sufficient level of staff assistance to serve those
persons that need assistance in accessing services electronically;
or (3) providing direct one-on-one sessions with LEP applicants who
are unable to access electronic information.
Example: A One-Stop Career Center in a moderately large city
includes significant LEP populations whose native languages are
Spanish, Korean, and Tagalog. One-Stop Career Center management
officials could reasonably consider creating a resource list of
individuals competent to interpret and ready to assist front-line
staff dealing with LEP customers. This could be combined with
developing language-appropriate written materials, such as an
explanation of basic labor exchange activities and other services
available at the One-Stop Career Center for use by LEP individuals
who are literate in those languages. In other circumstances, it may
be necessary to provide access to a telephone interpretation
service.
Example: Job placement staff at a One-Stop Career Center assist
employers interested in hiring LEP individuals who have completed
ESL vocational training. In some instances, employers may have
bilingual supervisors who can assure that safety precautions and
explanations are provided in the individuals' primary language(s).
In other locations, ``ethnic'' community-based organizations
maintain lists of employers who have openings and are able to place
LEP individuals without providing ESL or vocational training with
businesses where the LEP individuals' primary language(s) is spoken.
This example may be one appropriate way of providing meaningful
access for LEP individuals.
Example: A large state, with an ethnically diverse population,
operates a website as part of its overall delivery system which
offers access to labor market information and provides labor
exchange self-service for job seekers and employers. Because of the
scope and reach of the Internet, the population eligible to be
served by that website may easily include LEP individuals
representing over 100 different languages. In this instance, the
state translates key documents and forms on its website into the
most significant languages, e.g., representing five percent or more
of the total eligible population to be served, and advertises its
toll-free help line, which includes interpretation services, on the
homepage of its website. Through the combination of its toll-free
help line and its in-office delivery system, the state is able to
provide information and services to LEPs in languages that are less
commonly encountered. In this instance, the recipient takes into
account, in conducting its four-factor analysis, its entire delivery
system, not just one component. This example may be one appropriate
way of providing meaningful access for LEP individuals.
c. Delivering Unemployment Insurance (UI) Services
The federal-state UI program created by the Social Security Act
of 1935, offers the first line of defense against the ripple effects
of unemployment. Payments made directly to eligible, unemployed
workers ensure that at least a significant proportion of the
necessities of life, most notably food, shelter and clothing, can be
met on a week-to-week basis while the claimant searches for work. UI
benefits provide temporary wage replacement that helps claimants to
maintain their purchasing power and stabilize the economy.
(1). Initial Claims and Follow-Up Notices
State agencies that serve LEP claimants should consider the
inherent communication impediments to gathering information from LEP
persons throughout the UI claims process. During the initial claim
process, it is necessary to collect basic information, such as the
LEP person's name, address, employment information, and reason for
separation from employment. It is also necessary to communicate with
claimants throughout the life of their claims, and workforce
agencies should evaluate their ability to provide appropriate
services at all stages of the UI claim. Where few bilingual staff
are available or in situations where the LEP person speaks a
language not frequently encountered in the local area, telephone
interpretation services may provide the most cost effective and
efficient method of communication during the initial claim. However,
subsequent correspondence and communication frequently entail
written notices and claim forms. Depending on the size of the LEP
population, it may be necessary to translate vital forms into other
languages or to include a multilingual tag-line on correspondence
not appropriately translated to inform claimants that free language
services are available.
Example: A state agency operates a statewide Call Center for UI
initial claims taking that receives 100,000 calls per year. The
majority of the calls are from English speakers. Fifteen percent of
the callers (15,000) do not speak English: 6,500 callers speak
Spanish; 4,000 speak Vietnamese; 3,500 speak Cambodian; and the rest
speak other languages (500 Russian, 100 French, 80 Tagalog, 20
German, and 300 speak other languages). The Call Center employs four
Spanish speakers, two Vietnamese speakers and two Cambodian
speakers. A voice response system directs the calls as appropriate
to the bilingual staff. Calls from LEP claimants speaking other
languages are directed to a commercial interpretation (telephone
interpretation) service. The Call Center's bilingual employees are
able to handle most calls from the three significant LEP language
groups that they serve. Callers who speak English and any of the
three languages for which translation is provided generally wait no
longer than five minutes to speak with the staff. The system is
monitored for wait times and performance. Follow-up correspondence
such as letters, notices, and forms contain a tag-line in the
languages of the three significant LEP groups and three other
commonly encountered languages. The tag-line advises individuals of
the importance of the information and provides a phone number to
call for assistance. This example may be one appropriate way of
providing meaningful access for LEP individuals.
(2). UI Benefits Rights Information (BRI)
State agencies provide UI benefits rights information to all
claimants. The information is necessary to ensure that claimants
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understand their rights and responsibilities under the state UI law.
Example: A state agency takes its UI claims in-person. It prints
a Benefits Rights Information (BRI) pamphlet in English and in three
other languages to serve the three significant LEP population groups
in the state. After the initial claim is taken, the state agency
provides the BRI in a group setting for all claimants. LEP
individuals who speak the three significant languages attend
separate groups in which the information is conveyed in the
appropriate languages. Claimants who speak languages that are less
prevalent receive the information through a telephone translation
service. The state agency has also produced a video of the BRI in
the three primary LEP groups' languages. The BRI video is available
for viewing at the local library or at the local office. Claimants
are advised that the BRI is important and that it is necessary that
they hear and understand the BRI before filing claims for benefits.
This example may be one appropriate way of providing meaningful
access for LEP individuals.
(3). UI Determinations/Adjudications/Appeals
The purpose of the UI program is to provide temporary financial
assistance to individuals who have lost their employment, who are
able and available for work, and who meet other eligibility
requirements of state law. As appropriate, claims adjudicators apply
the legal test of the various requirements of the state law to the
factual circumstances involved in each specific claim to issue a
determination of eligibility. All state laws contain provisions
permitting claimants to appeal determinations within a specified
period of time. Because of the importance of accurate and timely
information from UI claimants for eligibility determinations,
formulating a successful policy for effectively communicating with
LEP individuals is necessary.
Example: A workforce agency institutes a LEP plan that provides
qualified interpreters, as necessary, for fact-finding at the
initial determination stage and/or at an appeals hearing. Some of
the interpretation is done using bilingual state agency staff, and
some interpretation is handled by a number of individuals that are
placed on a ``list of interpreters'' developed to assist when state
staff is unavailable or when staff do not speak the particular
language needed. The agency also has a contract with a telephone
translation service, which is used as needed. The written
determinations and decisions are printed in English and Spanish and
``tag-lines'' (an annotation) are included in four additional
languages advising claimants of their appeal rights. Claimants are
advised at the time of the initial claim that it is very important
to read and understand correspondence they receive about UI, and
they are encouraged to seek assistance by contacting the agency as
necessary. The agency is able to handle telephonic inquiries
languages other than English. These actions would constitute
evidence of reasonable steps to ensure meaningful access to the UI
benefits. This example may be one appropriate way of providing
meaningful access for LEP individuals.
(4). UI Linkages to Reemployment Services
Facilitating reemployment of the UI claimant is a key objective
of the UI system. Claimants therefore need to be aware of the types
of services available and need to know how and where to access such
services.
Example: A state agency profiles UI claimants to identify those
most in need of reemployment services. Written notices to report for
reemployment services are sent to those claimants who have been
identified as needing these services and whom the agency has the
capacity to serve. Claimants are given specific instructions to
report to the agency or contact the agency through other means such
as by telephone. Claimants must understand both the requirement that
they contact the agency and their rights under state law because a
failure to follow these instructions could result in the denial of
UI benefits. A tag-line is included on all notices in the three
primary languages advising the claimant of the importance of these
services and of the fact that language assistance will be available
free of charge. Translation and interpretation for LEP claimants is
provided through telephone interpretation services, some bilingual
staff, and community-based organizations as needed. One-Stop Career
Centers that may subsequently refer claimants to other service
providers ensure that the service providers are aware of the
language needs of the LEP claimants. This example may be one
appropriate way of providing meaningful access for LEP individuals.
d. Community Outreach
Community outreach activities are increasingly recognized as
important to the ultimate success of a program that aims to serve
the larger community. Thus, application of the four-factor analysis
to community outreach activities can play an important role in
ensuring that the purpose of these activities--to improve awareness
of and participation in a program--is not thwarted due to lack of
planned, reasonable steps to address the language needs of LEP
persons.
Example: A state Employment Security Department (ESD) UI
Division has implemented a many-faceted outreach program to inform
Spanish-speaking LEP customers how to access UI benefits. Eight
radio stations that reach the highest numbers of Hispanics are used
to make public service announcements about ESD services. Inserts are
placed in major Hispanic newspapers and magazines, and flyers on ESD
services are distributed through community centers, faith-based
organizations, and Hispanic businesses. Articles are printed in
newspapers and magazines in Spanish and English on how to file UI
claims by phone through the UI Telecenters. This example may be one
appropriate way of providing meaningful access for LEP individuals.
Example: The Local Workforce Investment Board mobilizes faith
and community-based organizations to spread the word about the
upcoming public comment session on its five-year workforce
investment plan in the six major languages spoken by LEP individuals
in the area. Information about the upcoming meeting is delivered
throughout the community in written notices (in each target
language) as well as through public service announcements on radio
and tv in these six target languages. This example may be one
appropriate way of providing meaningful access for LEP individuals.
e. ESL Classes
English-as-a-second-language (ESL) classes are often useful and
appropriate for LEP populations. ESL courses can serve as an
important part of a proper LEP plan. However, the fact that ESL
classes are provided does not necessarily obviate the need to
provide meaningful access for LEP persons in other programs and
services that the One-Stop Career Center provides.
f. Intake, Orientation and Assessment
Intake, orientation and assessment play a critical role not
merely in the system's identification of LEP persons, but also in
providing those persons with fundamental information about how to
utilize the system and participate in education and training
opportunities available. All individuals should be given the
opportunity to be informed of the program's rules, obligations, and
opportunities in a manner designed effectively to communicate these
matters. An appropriate analogy is the obligation to communicate
effectively with deaf persons, which is most frequently accomplished
through sign language interpreters or written materials. Not every
One-Stop Career Center will use the same method for providing
language assistance. One-Stop Career Centers with large numbers of
Spanish-speaking LEP persons may choose to translate written
materials, notices, and other important orientation material into
Spanish with oral instructions, whereas One-Stop Career Centers with
very few such persons may choose to rely upon a telephonic
interpretation service or qualified community volunteers to assist.
Each person's LEP status and the language spoken should be recorded
in the person's file. Although the LEP Guidance and Title VI are not
meant to address literacy levels, recipients should be aware of
literacy problems so that the appropriate language services are
provided.
Example: A One-Stop Career Center is located in an area that has
a five percent Haitian Creole-speaking LEP population and an eight
percent Spanish-speaking LEP population. The One-Stop Career Center
has developed intake videos in Haitian Creole and Spanish for staff
to use when conducting orientation for new LEP persons who speak
these languages. In addition, the One-Stop Career Center provides
LEP persons with the opportunity to ask questions and discuss
orientation information with bilingual staff who are competent in
interpreting and who are either present at the orientation or
patched in by phone to act as interpreters. The One-Stop Career
Center has also made arrangements for LEP persons who do not speak
Haitian Creole or Spanish. For such situations, the One-Stop Career
Center has created a list of sources for interpretation, including
staff, contract interpreters, university resources, volunteers, and
a telephone interpretation service. Each person receives at least an
oral explanation of the
[[Page 32305]]
services available in the One-Stop Career Center. This example may
be one appropriate way of providing meaningful access for LEP
individuals.
g. Providing More Intensive Employment and Training Services
An effective LEP plan should envision how a LEP person will move
from receipt of core services to intensive services and then to
training services. An effective LEP plan will envision
accommodations along each step of the service continuum. For
example, customized programs that combine Vocational ESL and skills-
based vocational training may be appropriate depending upon the size
of the LEP population and the need of individual LEP persons. If
there are a significant number of LEP persons speaking a particular
language in a local area, the One-Stop Career System should consider
outreach to training providers that could provide classes in
appropriate languages in One-Stop Career Centers and at employer
sites. If there are far fewer LEP persons speaking a particular
language, the recipient might consider the use of bilingual
teachers, contract interpreters, community volunteers to interpret
during the class, reliance on videos or written explanations in
appropriate languages.
Example: A rural One-Stop Career Center has made a number of
accommodations to serve LEP job-seekers. Services are provided both
directly to the applicants and through a partner organization that
has the capability to mobilize comprehensive services to assist LEP
clients. The partner organization runs a special service center,
which is considered part of the One-Stop Career System and is
located near its main offices. The special center offers core
employment services such as job placement, job-seeking/job-retention
skills, and individual counseling to LEP clients as well as
providing access to many other services, such as housing,
transportation, childcare, legal services, counseling, interpretive
services, and assistance with completing immigration and
naturalization forms. Emergency referrals for healthcare, housing/
shelter, and food are also made. The local One-Stop Career Center
also routinely provides specialized resources to serve LEP
dislocated workers, including bilingual assistance for UI and other
financial aid, assessment of English language skills, and ESL career
planning. The program utilizes the ESL capabilities available at the
local community college and hires translators to assist the workers
in developing individual plans, providing guidance, and in taking
skill-building courses in new demand occupations. Customized ESL
classes have been developed on specific work-related issues (for
example, higher level ESL courses on job seeking and communicating
in the workplace are offered). Students are also referred to both
community-based ESL and an intensive for-credit immersion ESL course
that runs five days a week, six hours a day, offered through the
local community college. The local program has also developed a
strong partnership with the State Bureau of Refugee Services to
coordinate the provision of additional social services for LEP
dislocated workers. This example may be one appropriate way of
providing meaningful access for LEP individuals.
Example: A community college, which serves as a One-Stop Career
Center, customizes its workforce services for LEP individuals. In
particular, its dislocated worker program (of which eighteen percent
of participants is LEP) has made accommodations in fourteen services
that are now individualized to meet the specific needs of LEP
participants. The services include: outreach and recruitment, rapid
response, orientation, assessment, case management, self-sufficiency
plan development, support services, vocational training, job search
assistance, job development and placement, retention services,
interagency coordination, basic skills training, and employer
services. Changes in services have been developed through close
collaboration between the workforce investment staff and the
traditional ESL teachers at the community college. While ESL, adult
basic education and GED courses are available to all participants;
the LEP dislocated workers receive customized employment-related ESL
training. The dislocated worker program also provides peer support
training and counseling. This unique approach involves training
peers--dislocated workers themselves--who are proficient in both the
LEP participant's primary language and English to serve as
translators, information providers, and counselors to the other
dislocated workers. Another unique component of the services to LEP
dislocated workers is the targeted industry model, which includes
pre-training job shadowing and industry-related classroom
activities. The program also provides training to employers on
cultural differences and on creating multicultural work teams.
Finally, the program has developed close relationships with
community-based organizations serving immigrant populations to
provide other services to LEP individuals. The community-based
organizations provide additional employment services as well as
information on a variety of youth and family services, which may be
useful to dislocated worker participants. This example may be one
appropriate way of providing meaningful access for LEP individuals.
h. Youth Programs
DOL provides funds to many youth programs to which the LEP
Guidance applies. Recipients should also consider LEP parents when
designing programs targeted to youth.
Example: A local workforce program serving former gang members
has significantly altered its services to accommodate a large number
of immigrant youth who have limited English proficiency and are
transitioning from the juvenile justice system. In order to make all
program elements accessible to these youth, program staff is fluent
in multiple languages including Vietnamese, Cambodian, Spanish, and
Laotian. Upon entry into the program, each youth is assessed using a
specially designed risk assessment tool to gauge such factors as
educational and employment skill levels, need for home-based support
(which can include culturally appropriate interventions),
counseling, and identification of personal assets and interests.
Each youth receives an individualized service strategy after
assessment. This example may be one appropriate way of providing
meaningful access for LEP individuals.
[FR Doc. 03-13125 Filed 5-28-03; 8:45 am]
BILLING CODE 4510-23-P
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