Division of Employment and Training Legal Services (ETLS)

MISSION AND FUNCTION:  The Division provides legal advice, rulemaking, and litigation services to the Employment and Training Administration (ETA) on a wide variety of employment and training programs that contribute to the more efficient functioning of the U.S. labor market by providing high quality job training, employment, labor market information, and income maintenance services for adults and youth, primarily through state and local workforce development systems.  Programs for which the Division is responsible include the Federal-State unemployment compensation program, assistance for workers who have been displaced due to international trade, labor certifications necessary for foreign workers to enter the U.S. for employment, apprenticeship training and certification, and job placement assistance and training.

Working with the Veterans' Employment and Training Service (VETS), the Division provides legal services that support employment and training programs for veterans and separating service members, assure reemployment rights and protection against discrimination to members of the uniformed services, and enforcement of Federal executive branch veterans' preference laws.

The Division also supports the Bureau of International Labor Affairs (ILAB) on all international activities of the Department, including responsibilities concerning the International Labor Organization, the North American Free Trade Agreement, various Trade Acts, and international child labor and core labor standards technical assistance projects.

STATUTES: The Division is responsible for legal work arising out of the Department's administration and enforcement of a variety of statutes, including:

• Workforce Investment Act of 1998 (WIA) system connecting employment, training, and education services to match workers to labor market needs

•  Wagner-Peyser Act  providing for a national employment service system

•  Unemployment compensation provisions of the Federal Unemployment Tax Act (FUTA) and the Social Security Act (SSA) (Titles III, IX, and XII)
   

• Trade Adjustment Assistance (TAA) and Alternative TAA for Older Workers (ATAA) programs, under the Trade Act of 1974

•  Uniformed Services Employment and Reemployment Rights Act (USERRA) provides reemployment rights for qualifying members of the uniformed services, and prohibits discrimination against persons because of their service in the Armed Forces Reserve, the National Guard, or other uniformed services

• Veterans Employment Opportunities Act of 1998 (VEOA) relating to enforcement of Federal executive branch veterans' preference

• Disaster Unemployment Assistance program under the Robert T. Stafford Disaster Relief and Emergency Assistance Act

• Unemployment compensation programs for Ex-Service Members and Federal Employees ( 5 U.S.C. 8501, et seq. )

• Senior Community Service Employment Program under the Older Americans Act

•  National Apprenticeship Act to promote the furtherance of labor standards necessary to safeguard the welfare of apprentices

• Veterans' employment and training provisions under 38 U.S.C. Chapter 41, 38 U.S.C. Chapter 42, the Workforce Investment Act, and other statutes

• Provisions of the Immigration and Nationality Act (INA) that relate to the Secretary's duties for the admission of temporary and permanent alien workers

• Although the Department of Labor has no enforcement or administrative authority over the Worker Adjustment and Retraining Notification Act (WARN), it was charged with promulgating regulations implementing the statute; Division attorneys provide information to the public on WARN question

DESCRIPTION OF FUNCTIONS: The Division litigates in several forums.  Litigation Section attorneys represent Department officials in various administrative-judicial matters before the Department's Office of Administrative Law Judges (ALJ).  These matters include appeals from final determinations:  (a) disallowing costs claimed under a variety of contracts and/or grants; (b) imposing various programmatic sanctions; (c) denying permanent or temporary labor certification/condition applications under the INA; and (d) in unemployment insurance conformity and compliance proceedings under FUTA and SSA.  Division attorneys work on cases involving contract disputes and bid protests.  Division attorneys also play an active role in litigation in Federal district courts and courts of appeals in cases involving either challenges to particular actions or policies of the Department, or appeals from ALJ decisions.  Many cases involve large sums of money and complex records.  Finally, Division attorneys assist in litigation before the U.S. Court of International Trade involving agency determinations on petitions seeking certification of eligibility to apply for trade adjustment assistance.  A typical Litigation Section attorney carries a caseload of 10-15 active cases.  The distribution of cases between administrative and court litigation varies widely, but administrative litigation usually consumes between 50-75% of an attorney's time.  Some travel is involved, but it normally averages no more than one day per month.

Examples of recent cases being litigated include:

  U.S. Department of Labor, Office of Apprenticeship Training, Employer and Labor Services (OATELS) v. California Department of Industrial Relations (ARB).  The Labor Department's Administrative Review Board affirmed an ALJ decision upholding the Office of Apprenticeship’s decision to derecognize California and thus remove its ability to certify apprenticeship programs for federal purposes.

  Trafalgar Ltd. v. USDOL (Ct. of Federal Claims). This contract dispute involves the construction of a Job Corps Center in Charleston, West Virginia.  The plaintiffs are seeking over $15 million to cover additional costs allegedly incurred during excavation at the site.

  Global Horizons, Inc. v. U.S.D.O.L. (C.D. Ca.).  This case involves the Department's action in debarring from participation in the H-2A temporary worker program a farm labor contractor whose application for labor certification contained false information.

The Division's advice and regulatory functions are handled by:  (1) a Counsel for International Affairs and USERRA, who is responsible for USERRA and veterans' preference enforcement and for all matters involving programs of the Bureau of International Labor Affairs; (2) a Counsel for Immigration, who is responsible for Employment and Training Administration programs involving the admission of temporary and permanent foreign workers; and (3) two Counsels for Employment and Training Advice, who are responsible for advice and regulatory activities for all the other programs and statues within the Division's jurisdiction. Their work includes providing informal review and advice to client agencies, drafting formal legal opinions on a variety of topics, reviewing for legal sufficiency all regulations drafted by client agencies, and commenting on legislative proposals.  Because of the variety of programs administered by the Division's client agencies, the range of advice and regulatory review requests is quite broad and involves a great many novel questions.  These three counsel areas include approximately ten staff attorney positions.  International work may involve occasional travel, but the remaining work usually does not require travel.

Examples of issues which have arisen include:

Legal questions that arise during the review of State WIA plans, plan modifications, and waiver requests.

Legal, policy, and program design issues arising during ETA's implementation of the YouthBuild program, recently transferred to DOL from HUD

Legal questions about the scope of coverage of the Trade Adjustment Assistance program.  The Trade Adjustment Assistance program, originating in 1962, limits coverage to workers in firms producing articles, traditionally considered to be tangible commodities, such as automobiles, textiles, and shoes.  The rise of trade in intangible products such as software has caused rethinking on this issue.

Legal questions related to implementation of a new attestation-based program for the permanent admission of immigrant workers, and reduction  of the backlog of labor certification cases remaining under the prior program.

Examples of significant regulations that have been drafted recently include:

Regulations to implement policy changes for federally funded employment and training programs under the Workforce Investment Act (WIA) and the Wagner-Peyser Act until additional reforms are enacted through reauthorization of the WIA.

Comprehensive regulations implementing the TAA and ATAA programs; these rules comprise three separate rulemakings, one covering eligibility for TAA and ATAA assistance, one covering TAA benefits, and the third covering the ATAA.

Regulations designed to reduce incentives and opportunities for fraud and abuse in the granting of labor certification for the permanent employment of aliens in the United States.

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