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OASAM Federal Register Notice

Policy Guidance on the Prohibition of National Origin Discrimination as it Affects Persons with Limited English Proficiency [05/29/2003]

[PDF Version]

Volume 68, Number 103, Page 32289-32305


[[Page 32289]]

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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


[[Page 32290]]


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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

[[Page 32294]]

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.
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    \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.
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    [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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.cultureconnectinc.org/ispeak.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\
---------------------------------------------------------------------------

    \17\ The Social Security Administration has made such signs 
available at:  http://www.socialsecurity.gov/multilanguage/ 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

[[Page 32304]]

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