40 TAC §§841.201-841.215
The Texas Workforce Commission (Commission) adopts new §§841.201-841.215,
relating to the nondiscrimination and equal opportunity requirements of the
Workforce Investment Act (WIA), without changes to the proposed text as published
in the July 21, 2000 issue of the
Texas Register
(25 TexReg 6968). The text of the rules will not be republished.
The term "Agency" when used in this rule means the state agency, which
operates an integrated workforce development system. The term "Commission"
when used in this rule means the three member governance body composed of
Governor-appointed members whose duties include but are not limited to adopting
rules under Texas Labor Code §301.061 and §302.002.
Background and Purpose: As the state level entity designated to administer
the WIA funds in Texas, the Agency has the responsibility to ensure that recipients
of the WIA funds provided under a contract with the Agency comply with the
nondiscrimination and equal opportunity requirements of WIA §188 (29
U.S.C.A. §2938), which prohibit discrimination on the ground of race,
color, religion, sex, national origin, age, disability, political affiliation
or belief, and, for WIA beneficiaries only, citizenship or participation in
a WIA Title I financially assisted program or activity. The new rules describe
the Agency's role in this process and set forth the duties and responsibilities
of WIA recipients.
Concurrent with this adoption is the adoption of amendments to §839.11.
The adoption of the amendment is also contained in this issue of the Texas
Register. The purpose of the adoption of amendments to §839.11 is to
reflect the use of WIA nondiscrimination rules rather than the Job Training
Partnership Act (JTPA) nondiscrimination rules in processing complaints of
discrimination by participants in Welfare-to-Work activities.
Concurrent with this adoption of the repeal of Chapter 805, Subchapter
H relating to the JTPA nondiscrimination and equal opportunity provisions.
The adoption of the repeal is also contained in this issue of the Texas Register.
The purpose of the repeal is to remove the rules that are no longer applicable
to the process from the Texas Register.
New Subchapter F is added regarding WIA Nondiscrimination and Equal Opportunity.
The subchapter contains the following provisions:
Section 841.201 describes the scope and purpose of the rule.
Section 841.202 sets forth definitions. The definition of "recipient" found
in 29 CFR §37.4 includes state level agencies, which administer WIA Title
I funds. For the purposes of these rules, which establish the duties and responsibilities
of local workforce development boards (Boards) and other Agency contractors
and WIA subrecipients, the term "recipient" will not include the Commission
or Agency.
Section 841.203 sets forth the assurances with which recipients must comply.
Section 841.204 describes the requirement for the designation of the Equal
Opportunity Officer.
Section 841.205 describes the notice and communication requirements.
Section 841.206 sets forth the requirements for data and information collection
and maintenance.
Section 841.207 describes the requirement for universal access to WIA Title
I financially assisted activities.
Section 841.208 describes the process for filing complaints of discrimination.
Section 841.209 describes the notice of receipt of complaint, which is
issued by the Agency Equal Opportunity (EO) Officer.
Section 841.210 sets forth the jurisdictional requirements for filing complaints
of discrimination.
Section 841.211 describes the notice of acceptance of complaints of discrimination.
Section 841.212 describes the alternate dispute resolution process.
Section 841.213 describes the procedures used by the Agency in processing
accepted complaints of discrimination.
Section 841.214 sets forth some of the possible corrective actions and
remedies available, if there is a finding of discrimination.
Section 841.215 provides that the Agency may impose sanctions, if there
is a finding of a violation of the nondiscrimination and equal opportunity
requirements.
The new rules are adopted to assure compliance with federal statutory requirements
regarding nondiscrimination and equal opportunity in programs funded through
WIA, to clarify changes resulting from the enactment of WIA, and to assist
Boards with complying with requirements imposed by the federal funding source.
The Commission received one comment on the rule from the North Central
Texas Workforce Development Board (North Central). The commenter did not state
whether the commenter agreed or disagreed with all provisions but stated disagreement
with some provisions and made general comments and suggestions regarding other
provisions within the rules. The comments and responses to the comments are
set forth as follows.
Comment: Regarding §841.202, the commenter stated that the term "agency"
was not defined in the rule.
Response: The Commission asserts that the term "agency" was explained in
the preamble to the proposed rules and that "Agency" is used to refer to the
actions of the Texas Workforce Commission as a state agency as distinguished
from the actions of the three-member governance body of the Texas Workforce
Commission, which is referred to as the "Commission." The Commission does
not agree with adding the definition of agency in this subchapter as the term
is generally understood using the plain meaning of the word.
Comment: Regarding §841.202(6), the commenter stated that the definition
of "recipient" was too broad and duplicative to require that Boards monitor
One Stop partners which are state agencies or recipients of other federal
funding since these entities are monitored by other agencies for compliance
with equal opportunity and nondiscrimination provisions.
Response: The Commission agrees that the definition of recipient is broad
but asserts that the definition used in §841.202(6) is required by federal
regulations at 29 C.F.R. §37.4, which includes all of the same categories
of entities as are included in §841.202(6). The Commission also asserts
that the monitoring requirements are set out in federal regulations at 20
C.F.R. §37.25, which require monitoring of all recipients. The federal
regulation does not make any exceptions from this monitoring requirement for
entities that are monitored by other state or federal agencies. The Commission
would encourage Boards to coordinate monitoring activities with other agencies
to reduce any duplication efforts.
Comment : Regarding §841.205(d), the commenter disagreed with the
requirement that Boards must assure that training regarding the nondiscrimination
and equal opportunity requirements of WIA is provided to recipients and recipients'
staff. The commenter stated that Boards do not have the resources to provide
training to all recipients.
Response: The Commission would assert that §841.205(d) does not require
that the Boards provide or fund all of the nondiscrimination and equal opportunity
training from the Board's own budget. Specifically, the Boards can fulfill
the requirements of §841.205(d) by requiring that all operators of Texas
Workforce Centers and other workforce area recipients obtain the required
training and by monitoring recipients to assure that the training is provided.
The Commission would also clarify that providing nondiscrimination and equal
opportunity training is a necessary administrative expense of operating a
WIA funded program, which is funded through the funds allocated by the Commission.
The Commission would recommend that Boards assist in limiting the cost of
such training by working with all of the recipients in the workforce area
to coordinate the provision of training so that the expense of training can
be shared by all of the local recipients and so that economies of scale can
be realized.
Comment: Regarding §841.205(d), the commenter questioned why there
was a lack of definition and guidance regarding the training.
Response: The Commission responds by stating that the Commission's equal
opportunity office is available to provide guidance to Boards; however, the
Commission would encourage Boards to develop their own specific training requirements
to best meet the needs of the workforce area's subrecipients.
Comment: Regarding §841.206(e), the commenter questioned whether it
was appropriate to require proposed levels of service in a request for proposals
(RFP) since an RFP might target specific populations to meet the needs of
the workforce area.
Response: The Commission would clarify that §841.206(e) does not prevent
an RFP from targeting a specific population as long as none of the RFP provisions
violate the nondiscrimination and equal opportunity requirements of WIA by
discriminating against one of the covered categories or activities listed
in 20 CFR §§37.5-37.10.
Comment: Regarding §841.213 and §841.214, the commenter expressed
disagreement with the reference to the appeal rights of a complainant to the
U.S. Department of Labor Civil Rights Center (CRC) without a similar right
of appeal by a respondent to an allegation of discrimination.
Response: The Commission would clarify that the U.S. Department of Labor
set forth the requirements regarding what situations result in CRC accepting
a complaint of a violation of the nondiscrimination and equal opportunity
requirements of WIA. Furthermore, in 20 CFR 37.79, the Department of Labor
states that a complainant may file a complaint with CRC within 30 days after
the complainant receives a notice of final action from a recipient. Under
current regulations, the Commission finds no provision in the federal regulations
to provide review of a final decision for persons or entities other than a
recipient.
Comment: Regarding §841.204(b)(2), the commenter stated that Boards
do not have the expertise or resources to investigate and monitor all subrecipients
and that the rules do not provide the Boards with enforcement power.
Response: The Commission requirement that Boards, as recipients, investigate
and monitor their subrecipients to ensure compliance with the nondiscrimination
and equal employment is required by WIA and Federal regulations. The Commission
does not have the authority to exempt Boards from this responsibility. The
master contract between the Agency and a Board requires that the Board include
a provision in all subcontracts requiring compliance with WIA requirements.
Thus, Boards have contractual means of assuring and enforcing that subrecipients
comply with WIA requirements.
Comment: Regarding §841.204(b)(2), the commenter stated that the monitoring
requirement conflicts with a risk-based approach to monitoring programs and
services.
Response: The Commission asserts that the requirement for monitoring for
compliance with the nondiscrimination and equal opportunity provisions of
WIA is not in conflict with a risk-based approach because §841.204(b)(2)
requirements reflect the emphasis placed by both the U.S. Department of Labor
and the Commission on assuming that services are provided in a nondiscriminatory
manner.
Based on the reasons stated in the responses to the comments, the Commission
will make no changes to the text of the rules as proposed.
The new rules are adopted under Texas Labor Code §301.061
and §302.002, which provide the Texas Workforce Commission with the authority
to adopt, amend or repeal such rules as it deems necessary for the effective
administration of Commission services and activities.
The adoption affects Texas Labor Code, Title 4, and Texas Government Code,
Chapter 2308.