DINAP Bulletin 92-26
Transition Guidance for the Implementation of the Job Training Partnership Act (JTPA) Amendments of 1992
To provide guidance to Section 401 grantees related to their responsibility to implement certain statutory changes in the Job Training Reform Amendments of 1992 (JTRA), by July 1, 1993.
References. DINAP Bulletin No. 92-15. Background. The JTRA of 1992, public law 102-367, dated September 7, 1992, made substantive enhancements to JTPA program requirements and administrative systems. Pursuant to the authority provided by section 701(i) of the Amendments, which permits the Department to "establish such rules and procedures as may be necessary to provide an orderly implementation of the amendments . . . ," this bulletin provides guidance on certain programmatic and administrative areas through which the Department intends to assist Section 401 grantees in their implementation of the statutory changes. Revised regulations for the Section 401 program, which will incorporate the statutory changes as well as other changes to enhance the quality of the program, will not be proposed or finalized until after the commencement of Program Year 1993. In addition, these revised regulations will be promulgated only after an extensive review and comment period open to Section 401 grantees and other interested parties. Section 401 grantees must, nonetheless, implement the statutory requirements described below, by July 1, 1993. Policy. The Department will issue new regulations for the Indian and Native American program which conform to the Amendments as soon as possible after July 1, 1993. The current regulations for the Indian and Native American program remain in full force, except in those areas where they have been superseded by the Amendments. Information. Key Amendment provisions of the JTRA are discussed below. Sections quoted from the Act contain the Amendment language applicable to the Section 401 program. This language is followed by guidance. Grantees are expected to review each section of the Act which is applicable to the Section 401 program in its entirety. The key Amendment provisions include the following (where appropriate, citations are provided): A. Plant Relocation. Section 141(c) reads in relevant part: (1) No funds under this Act shall be used or proposed for use to encourage or induce the relocation, of an establishment or part thereof, that results in a loss of employment for any employee of such establishment at the original location. (2) No funds provided under this Act shall be used for customized or skill training, on-the-job training, or company specific assessments of job applicants or employees, for any establishment or part thereof, that has relocated, until 120 days after the date on which such establishment commences operations at the new location if the relocation of such establishment results in a loss of employment for any employee of such establishment at the original location. Guidance: This section of the Act was substantially revised to prohibit the use of JTPA funds to induce or encourage the relocation of a company when such relocations result in the loss of employment at the original location. A ban on use of JTPA funds for 120 days after the commencement of operations at the new location further restricts the use of JTPA funds in such instances. The Department interprets a relocating establishment to mean a business entity, including a successor-in-interest, which is moving any operations from a facility in one labor market area within the United States and its territories to a new or expanding facility in another labor market area. "Commences operations" means the commencement of commercial operations. B. On-the Job Training. Section 141(g) reads in relevant part: (2) On-the-job training authorized under the Act for a participant shall be limited in duration to a period not in excess of that generally required for acquisition of skills needed for the position within a particular occupation, but in no event shall exceed 6 months, unless the total number of hours of such training is less than 500 hours . . . (3) Each on-the-job training contract shall -- (i) specify the types and duration of on-the-job training and the other services to be provided in sufficient detail to allow for a fair analysis of the reasonableness of proposed costs; and (ii) comply with the applicable requirements of section 164 [Fiscal controls; Sanctions]. (4) In accordance with regulations issued by the Secretary, on-the-job training contracts under this Act shall not be entered into with employers who have received payments under previous contracts and have exhibited a pattern of failing to provide on-the-job training participants with continued long-term employment as regular employees with wages and employment benefits (including health benefits) and working conditions at the same level and to the same extent as other employees . . . Guidance: The Amendments provide that on-the-job training (OJT) contract language should contain specific training content in sufficient detail to support costs. OJT is a training option meant to be conducted in the highest skill occupation appropriate for an eligible participant. It is not intended to be subsidized employment for low-skill occupations which need very little training time. Contract duration is to be set at the length of time necessary to be trained in a specific job and which meets the specific training needs of the participant. Additionally, the contract shall not exceed six months duration unless the number of hours of the contract is less than 500 hours. The Department's policy on this provision focuses on legislative language to the effect that the number of reimbursable hours may not exceed the later of six months or 499 hours. In the following reference chart (which reflects the revised policy), the conditions of Column A and Column B must be met for Column C to be true: A B C CONTRACT SPAN CONTRACT SPAN IN HOURS IN MONTHS REIMBURSABLE 1-499 any duration Yes over 499 over 6 No 1-1040* 0-6 Yes * e.g. full-time employment No portion of an OJT contract in excess of six months or 499 hours is reimbursable under the Act as amended. Employers who fail to sustain OJT placements in permanent unsubsidized employment shall be ineligible for future contracts. Employment and OJT contracts, awards and agreements entered into on or before June 30, 1993, are to be used to serve only participants enrolled on or before June 30, 1993, unless the contracts, awards and agreements are modified after June 30th to comply with the Amendments. C. Program Income. The Amendments add to the existing definition of program income the following three categories: (i) receipts from goods or services (including conferences) provided as a result of activities funded under the Act; (ii) funds provided to a grantee in excess of the costs associated with the services provided; and (iii) interest income earned on funds received under this Act. Guidance: Grantees may retain program income only if it is used to carry out grant activities, as per section 141(m) of the Act. Grantees which receive program income from PY 1993 funds must maintain records sufficient to determine the amount of such income received and the purposes for which such income is expended, as per section 141(m)(3) of the Act. D. Employment Generating Activities. Section 141(q) reads: No funds available under this Act shall be used for employment generating activities, economic development activities, investment in revolving loan funds, capitalization of businesses, investment in contract bidding resource centers, and similar activities. Guidance: The Amendments prohibit use of JTPA funds for certain types of employment generating activities. However, grantees may continue to undertake the following types of activities: -- normal employer outreach for participant placement purposes; -- memberships in business associations; -- participation on economic development boards and commissions; -- providing information on JTPA programs to economic development agencies; -- subscriptions to relevant publications; and -- conducting labor market surveys. E. Impairment of Contracts. Section 143(b) reads, in relevant part: (2) No program under this Act shall impair -- (A) existing contracts for services; or (B) existing collective bargaining agreements, unless the employer and the labor organization concur in writing with respect to any elements of the proposed activities which affect such agreement, or either such party fails to respond to written notification requesting its concurrence within 30 days of receipt thereof. Guidance: The Amendment provision, in effect, requires Section 401 grantees to undertake linkages and coordination with both employers and labor unions prior to the commencement of employment and training activities in a facility governed by a collective bargaining agreement. In the absence of a response from either management or labor, the activities may commence after a period of 30 days. F. Grievances. Section 144 reads, in relevant part: (d)(1) If a person alleges a violation of section 143 [Labor Standards] and such person exhausts the recipient's grievance procedure, or the 60-day time period described in subsection (a) [grievance filing deadlines] has elapsed without a decision, either party to such procedure may submit the grievance to the Secretary . . . (2) . . . the Secretary may modify or reverse the decision, or issue a decision if no decision has been issued, as the case may be, after an opportunity for a hearing in accordance with the procedures under section 166 [Administrative adjudication] . . . (f)(1) Except as provided in paragraph (2), remedies available to grievants under this section for violations of section 143 [Labor standards] shall be limited to -- (a) suspension or termination of payments under this Act; (b) prohibition of placement of a participant, for an appropriate period of time, in a program under this Act . . . (c) appropriate equitable relief (other than back pay). (2) In addition to the remedies available under paragraph (1), remedies under this section for violations of subsection (a)(4) [same benefits and working conditions as similarly situated employees], paragraphs (1) and (3) of subsection (b) [no displacement or layoff of current employees], and subsection (d) [Davis-Bacon Act requirements] of section 143 may include -- (a) reinstatement of grievant to the position held prior to displacement; (b) payment of lost wages and benefits, and (c) reestablishment of other relevant terms, conditions, and privileges of employment. (g) Nothing in subsection (f) shall be construed to prohibit a grievant from pursuing a remedy authorized under another Federal, State, or local law for a violation of section 143 [Labor Standards]. Guidance: The basic requirement at Section 144 of the Act, to have and maintain a grievance procedure for complaints and alleged violations of the Act and regulations, was not changed by the Amendments. The Amendments did add new subsections which apply to the handling of alleged section 143 Labor Standards violations. Grantees must modify their existing grievance procedures accordingly to cover such complaints. G. Recordkeeping and Investigations. Section 165 reads, in relevant part: (a)(3) In order to allow for the preparation of national estimates necessary to meet the requirements of subsection (c), recipients shall maintain standardized records for all individual participants and provide to the Secretary a sufficient number of such records to provide for an adequate analysis. (4)(A) Except as provided in subparagraph (B), records maintained by recipients pursuant to this subsection shall be made available to the public upon request. (b) Subparagraph (A) shall not apply to -- (i) information, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy; and (ii) trade secrets, or commercial or financial information obtained from a person and privileged or confidential. (c) Recipients may charge fees sufficient to recover costs applicable to the processing of requests for records under subparagraph (A) . . . . . (b)(3)(A) In carrying out any audit under this Act (other than any initial audit survey or any audit investigating possible criminal or fraudulent conduct), either directly or through grant or contract, the Secretary, the Inspector General, or the Comptroller General shall furnish to the State, administrative entity, recipient, or other entity to be audited, advance notification of the overall objectives and purposes of the audit, and any extensive recordkeeping or data requirements to be met, not fewer than 14 days (or as soon as practicable), prior to the commencement of the audit . . . (c) Each State, administrative entity, and each recipient (other than a subrecipient, grantee or contractor of a recipient) receiving funds under this Act shall -- (1) make readily accessible reports concerning its operations and expenditures as shall be prescribed by the Secretary; (2) prescribe and maintain comparable management information systems, in accordance with guidelines that shall be prescribed by the Secretary, designed to facilitate the uniform compilation, cross tabulation, and analysis of programmatic, participant, and financial data, on statewide and service delivery area bases, necessary for reporting, monitoring, and evaluating purposes, including data necessary to comply with section 167 [Nondiscrimination]; and (3) monitor the performance of service providers in complying with the terms of grants, contracts, or other agreements made pursuant to this Act. (d)(1) The reports required in subsection (c) shall include information pertaining to -- (a) the relevant demographic characteristics (including race, ethnicity, sex, and age) and other related information regarding participants; (b) the activities in which participants are enrolled, and the length of time that participants are engaged in such activities; (c) program outcomes, including occupations, for participants; (d) specified program costs; and (e) information necessary to prepare reports to comply with section 167 [Nondiscrimination]. . . Guidance: In general, grantees will continue to use the current forms and instructions for reporting program and fiscal data. Revision of reporting forms and instructions is under consideration by the Department. Guidance and instructions on any new forms will be issued as necessary. H. Nondiscrimination. The Amendments provide for additional duties for the Department's Directorate of Civil Rights. The JTPA Amendments of 1992 revised section 167 of the Act to require the Secretary of Labor to issue the final regulations to clarify the application of the nondiscrimination and equal opportunity provisions of the JTPA and provide uniform procedures for implementing these provisions. On January 15, 1993, the Directorate of Civil Rights, the DOL agency responsible for enforcing the various Federal nondiscrimination and equal opportunity statutes applicable to federally-assisted programs, issued a final rule to implement the nondiscrimination and equal employment opportunity requirements of the JTPA in 29 CFR part 34. The regulations became effective on February 15, 1993 and were transmitted to Section 401 grantees in DINAP Bulletin 92-22, "Final Rule to Implement the Nondiscrimination and Equal Opportunity Requirements of the Job Training Partnership Act of 1982," April 26, 1993. Guidance: This final rule is in addition to the Department's nondiscrimination and equal opportunity regulations at 29 CFR parts 31 and 32. All three parts are applicable to JTPA, Section 401 programs. In order to eliminate the burden of complying with other overlapping regulatory requirements, 29 CFR part 34 provides that compliance by JTPA grantees with part 34 constitutes compliance with the Department's Civil Rights Act of 1964 title VI regulations (29 CFR part 31) and with specified portions of the Department's Rehabilitation Act section 504 federally-assisted programs regulations (29 CFR part 32, subparts A, D and E). However, 29 CFR part 34 does not incorporate all of the requirements contained in 29 CFR part 32. Therefore, grantees remain responsible for the obligations imposed by subparts B and C and Appendix A of 29 CFR part 32, which pertain to employment practices and employment-related training, program accessibility, and accommodations under Rehabilitation Act section 504. Action. Section 401 grantees should ensure that their transition efforts are consistent with the guidelines found in this bulletin and Title I of the JTPA as amended. The text of the JTPA as amended is provided for reference and/or information purposes. Effective date. July 1, 1993 for JTPA Amendments (the provisions of 29 CFR part 34 were effective on February 15, 1993). Inquiries. Contact your DINAP Federal Representative.
All Native American Grantees
HERBERT FELLMAN PAUL A. MAYRAND Chief Director Division of Indian and Office of Special Targeted Native American Programs Programs