Workforce Innovation and Opportunity Act Title I Non-Core Programs Effectiveness in Serving Employers Performance Indicator
| Published date | 23 February 2024 |
| Record Number | 2024-03279 |
| Citation | 89 FR 13595 |
| Court | Employment And Training Administration |
| Section | Rules and Regulations |
Federal Register, Volume 89 Issue 37 (Friday, February 23, 2024)
[Federal Register Volume 89, Number 37 (Friday, February 23, 2024)]
[Rules and Regulations]
[Pages 13595-13614]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-03279]
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DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Parts 684, 686, and 688
[Docket No. ETA-2022-0005]
RIN 1205-AC08
Workforce Innovation and Opportunity Act Title I Non-Core
Programs Effectiveness in Serving Employers Performance Indicator
AGENCY: Employment and Training Administration (ETA), Labor.
ACTION: Final rule.
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SUMMARY: The Workforce Innovation and Opportunity Act (WIOA)
establishes six primary indicators of performance for certain WIOA-
authorized programs and defines five of the six performance indicators.
The U.S. Departments of Labor and Education (the Departments) published
a final rule under RIN 1205-AC01 to define the sixth performance
indicator--effectiveness in serving employers--as Retention with Same
Employer into the implementing regulations for the six WIOA core
programs. In this related final rule, the Department of Labor (DOL or
the Department) is incorporating the same definition of the ESE
performance indicator into regulations for the following WIOA title I
non-core programs: the Indian and Native American (INA), the Job Corps,
and the YouthBuild program. This final rule makes two changes from the
notice of proposed rulemaking (NPRM) for the WIOA title I non-core
programs: the final rule permits the use of supplemental wage
information in the definition of the effectiveness in serving employers
performance indicator, and it specifies that the definition is
measuring retention in unsubsidized employment.
DATES: This final rule is effective March 25, 2024.
FOR FURTHER INFORMATION CONTACT: Michelle Paczynski, Administrator,
Office of Policy Development and Research, U.S. Department of Labor,
Employment and Training Administration, 200 Constitution Avenue NW,
Room N-5641, Washington, DC 20210, Telephone: 202-693-3700 (voice)
(this is not a toll-free number), 1-877-872-5627, or 1-800-326-2577
(telecommunications device for the deaf).
SUPPLEMENTARY INFORMATION:
Preamble Table of Contents
I. Background and Rulemaking Authority
A. WIOA Background
B. Summary of Changes From NPRM to Final Rule of the
Effectiveness in Serving Employers Performance Indicator for WIOA
Non-Core Programs
C. Effectiveness in Serving Employers Performance Indicator
Approaches for WIOA Core Programs, as Relevant to WIOA Title I Non-
Core Programs
D. Effectiveness in Serving Employers Performance Indicator for
WIOA Title I Non-Core Programs
E. Public Comments Received on the Proposed Rule
II. Section-by-Section Analysis of This Final Rule
A. Comments Received on Effectiveness in Serving Employers
Performance Indicator Approaches, as Relevant to WIOA Non-Core
Programs
B. Part 684--Indian and Native American Programs
C. Part 685--National Farmworker Jobs Program
D. Part 686--Job Corps Program
E. Part 688--YouthBuild Programs
F. Impacts of the Final Rule on Other Non-Core WIOA Programs for
Which the Department Has Applied WIOA Sec. 116 Primary Indicators of
Performance
III. Regulatory Analysis and Review
A. Executive Orders 12866 (Regulatory Planning and Review) and
13563 (Improving Regulation and Regulatory Review)
B. Regulatory Flexibility Act, Small Business Regulatory
Enforcement Fairness Act, and Executive Order 13272 (Proper
Consideration of Small Entities in Agency Rulemaking)
C. Paperwork Reduction Act
D. Executive Order 13132 (Federalism)
E. Unfunded Mandates Reform Act
F. Executive Order 13175 (Indian Tribal Governments)
Acronyms and Abbreviations
AEFLA Adult Education and Family Literacy Act
AJC American Job Center
CFR Code of Federal Regulations
Departments U.S. Departments of Labor and Education
DOL or Department U.S. Department of Labor
E.O. Executive Order
ES Employment Service
ETA Employment and Training Administration
FR Federal Register
GPMS Grantee Performance Management System
ICR Information Collection Request
INA Indian and Native American
MSFW migrant and seasonal farmworker
NAETC Native American Employment and Training Council
NFJP National Farmworker Jobs Program
NPRM or proposed rule notice of proposed rulemaking
OIRA Office of Information and Regulatory Affairs
OMB Office of Management and Budget
PIRL Participant Individual Record Layout
PRA Paperwork Reduction Act of 1995
Pub. L. Public Law
[[Page 13596]]
PY Program Year
REO Reentry Employment Opportunities
RFA Regulatory Flexibility Act
RIA Regulatory impact analysis
RIN Regulation Identifier Number
Stat. United States Statutes at Large
UI unemployment insurance
UMRA Unfunded Mandates Reform Act
U.S.C. United States Code
TEGL Training and Employment Guidance Letter
VR Vocational Rehabilitation
WIOA Workforce Innovation and Opportunity Act
WIPS Workforce Integrated Performance System
I. Background and Rulemaking Authority
A. WIOA Background
President Barack Obama signed WIOA into law on July 22, 2014. WIOA
superseded the Workforce Investment Act of 1998 and amended the Wagner-
Peyser Act and the Rehabilitation Act of 1973. In WIOA sec. 503(f),
Congress directed the Department to issue regulations implementing
statutory requirements to ensure that the public workforce system
operates as a comprehensive, integrated, and streamlined system to
provide pathways to prosperity and continuously improve the quality and
performance of its services to job seekers and employers. Additionally,
WIOA sec. 189(a) permits the Secretary of Labor to prescribe rules and
regulations to carry out title I of WIOA.
The law includes a common performance accountability system,
consisting of six statutory primary indicators of performance,
applicable to all WIOA core programs: adult, dislocated worker, and
youth programs under title I of WIOA; the Adult Education and Family
Literacy Act (AEFLA) program under title II; the Employment Service
(ES) program authorized under the Wagner-Peyser Act as amended by WIOA
title III; and the Vocational Rehabilitation (VR) program authorized
under title I of the Rehabilitation Act as amended by WIOA title IV.
WIOA also requires that the six statutory primary indicators of
performance apply to four WIOA title I, DOL-administered non-core
programs: INA programs (WIOA sec. 166(e)(5)), the NFJP (WIOA sec.
167(c)(2)(C)), Job Corps (WIOA sec. 159(c)(1)), and YouthBuild (WIOA
sec. 171(f)(1)) (hereinafter ``title I non-core programs'').
Although not mandated by WIOA, the Department requires several
other DOL-administered WIOA title I non-core programs and projects also
to report on the WIOA sec. 116 primary indicators of performance. For
example, the Department requires Reentry Employment Opportunities (REO)
grants (authorized under WIOA sec.169 and annual appropriation acts) to
report on the sec. 116 primary indicators of performance. The
Department anticipates applying the definition of the effectiveness in
serving employers performance indicator adopted in this final rule to
those programs.
In WIOA, Congress directed the Department to issue regulations
implementing statutory requirements to ensure that the public workforce
system operates as a comprehensive, integrated, and streamlined system
in order to provide pathways to prosperity and continuously improve the
quality and performance of its services to job seekers and employers.
On August 19, 2016, the Department issued the Workforce Innovation and
Opportunity Act; Final Rule (DOL WIOA Final Rule) to implement WIOA for
the title I non-core programs (81 FR 56071). That same day the
Departments jointly issued the Workforce Innovation and Opportunity
Act; Joint Rule for Unified and Combined State Plans, Performance
Accountability, and the One-Stop System Joint Provisions; Final Rule
(Joint WIOA Final Rule) to implement WIOA for the six core programs (81
FR 55791).
The WIOA statute defines five of the six performance indicators.
However, the statute did not specify how the sixth performance
indicator, effectiveness in serving employers, should be measured.
Instead, WIOA directed the Departments to develop a definition for the
effectiveness in serving employers performance indicator (WIOA sec.
116(b)(2)(A)(iv)).\1\ At that time, the Departments concluded that
there was not enough evidence of what should be measured to assess the
effectiveness in serving employers to adopt a standard definition.
Therefore, in the Joint WIOA Final Rule, the Departments determined
that it was prudent to pilot three definitions for the sixth
performance indicator to test the feasibility and rigor of three
approaches to measure a State's effectiveness in serving employers
through its WIOA-authorized core programs. As discussed more fully
below, during the pilot period, the Department, through guidance \2\
and the ``DOL-Only Performance Accountability, Information, and
Reporting System'' Information Collection Request (ICR), approved under
Office of Management and Budget (OMB) Control Number 1205-0521,
required the WIOA title I non-core programs to report on Retention with
the Same Employer, one of the three definitions being piloted by the
six WIOA core programs.
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\1\ Section 116(b)(2)(A)(i) of WIOA states the primary
indicators of performance: (1) the percentage of participants who
are employed during the second and (2) fourth quarters after exit
from the program, (3) the median earnings of participants who are
employed during the second quarter after exit, (4) the percentage of
participants who obtain a recognized postsecondary credential during
the program or within 1 year of exit, (5) the percentage of
participants who achieve measurable skill gains during a program
year, and (6) ``indicators of effectiveness in serving employers.''
This last indicator is the subject of this final rule. Definitions
of the others were included in the WIOA regulations promulgated in
August 2016 (81 FR 55791; see 20 CFR 677.155, 34 CFR 361.155, 34 CFR
463.155).
\2\ ETA, TEGL No. 14-18, ``Aligning Performance Accountability
Reporting, Definitions, and Policies Across Workforce Employment and
Training Programs Administered by the U.S. Department of Labor
(DOL),'' Mar. 25, 2019, https://wdr.doleta.gov/directives/corr_doc.cfm?docn=7611.
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That pilot, as well as a study of the results from the pilot, are
now complete. The definition in this final rule applies to both WIOA
core programs--which are addressed in the concurrently published
Workforce Innovation and Opportunity Act Effectiveness in Serving
Employers Performance Indicator; Joint Final Rule (RIN 1205-AC01)
(hereinafter referred to as Joint WIOA Effectiveness in Serving
Employers Final Rule)--as well as the four title I non-core programs,
which are addressed in this final rule.
WIOA secs. 159(c)(1) (Job Corps), 166(e)(5) (INA), 167(c)(2)(C)
(NFJP), and 171(f)(1) (YouthBuild) specify that performance for these
title I non-core programs must be assessed using the primary indicators
of performance in sec. 116 of WIOA. On September 14, 2022, the
Departments published a joint NPRM in which the Departments proposed to
codify the approach for evaluating a WIOA core program's effectiveness
in serving employers (87 FR 56318) (Joint WIOA Effectiveness in Serving
Employers NPRM). On the same day, DOL published an NPRM in which the
Department proposed to codify the approach for evaluating a WIOA title
I non-core program's effectiveness in serving employers (87 FR 56340)
(hereinafter referred to as the NPRM).
B. Summary of Changes From NPRM to Final Rule of the Effectiveness in
Serving Employers Performance Indicator for WIOA Non-Core Programs
This final rule implements Retention with the Same Employer as the
definition for effectiveness in serving employers for WIOA title I non-
core programs, as proposed in the NPRM, with two changes from the NPRM
made in response to comments received on the Joint WIOA Effectiveness
in Serving
[[Page 13597]]
Employers NPRM, which were also relevant to the NPRM.
Specifically, in the Joint WIOA Effectiveness in Serving Employers
Final Rule the Departments determined that supplemental wage
information plays a vital role when wage records are either unavailable
for a participant or difficult to obtain. For this reason, the
Departments revised Sec. 677.155(a)(1)(vi) and (c)(6) in the Joint
WIOA Effectiveness in Serving Employers Final Rule to remove the
requirement that wage records be used to document a participant's
employment status for purposes of the effectiveness in serving
employers performance indicator, thereby allowing for the use of
supplemental wage data. Second, the Joint WIOA Effectiveness in Serving
Employers Final Rule definition for effectiveness in serving employers
adds the requirement that the participant must have been in
``unsubsidized employment'' in the second and fourth quarters after
exit. The reasons for changing the Joint WIOA Effectiveness in Serving
Employers Final Rule text also apply to the WIOA title I non-core
programs. Therefore, the changes to the Sec. 677.155 regulatory text
have been carried over to this final rule at revised Sec.
684.460(a)(6) for INA Youth, revised Sec. 684.620(a)(6) for INA,
revised Sec. 686.1010(f) for Job Corps, and revised Sec. 688.400(f)
for YouthBuild.
C. Effectiveness in Serving Employers Performance Indicator Approaches
for WIOA Core Programs, as Relevant to WIOA Title I Non-Core Programs
Section 677.155 sets forth the primary indicators by which the
performance of core programs is evaluated, as required by WIOA sec.
116(b)(2)(A)(i). These primary indicators of performance apply to the
core programs described in WIOA sec. 116(b)(3)(A)(ii), as well as to
the title I non-core programs. These primary indicators of performance
create a common language shared across the programs' performance
metrics, support system alignment, enhance programmatic decision
making, and help participants make informed decisions related to
training. Sections 116(b)(2)(A)(i)(VI) and (b)(2)(A)(iv) of WIOA
require the Secretaries of Labor and Education to jointly develop and
establish the sixth performance indicator--effectiveness in serving
employers--after consultation with representatives of State and local
governments, business and industry, and other interested parties.
In the Joint WIOA Effectiveness in Serving Employers NPRM, the
Departments proposed to define the effectiveness in serving employers
performance indicator in Sec. 677.155(a)(1)(vi) as the percentage of
participants with wage records who exited a program and were employed
by the same employer in the second and fourth quarters after exit and
specified that this is a statewide indicator reported by one core
program on behalf of all six core programs in the State. In the NPRM,
the Department proposed this same language for the WIOA title I non-
core programs; however, as proposed in the NPRM, the statewide aspect
of the proposed definition in the Joint WIOA Effectiveness in Serving
Employers NPRM would not apply to WIOA title I non-core programs. The
Department sought comment on how the proposed definition of
effectiveness in serving employers performance indicator would impact
the WIOA title I non-core programs.
Prior to selecting this single approach to propose, the Departments
selected three approaches for measuring effectiveness in serving
employers to be piloted by WIOA core programs. The Departments assessed
the use of each of the three approaches with a focus on minimizing
employer burden and using information that would provide an accurate
picture of how well the public workforce system serves employers.
Under the guidance of the Departments,\3\ each State piloted its
choice of any two of three definitions for the effectiveness in serving
employers performance indicator for WIOA core programs: (1) Retention
with the Same Employer: Percentage of participants with wage records
who exited from WIOA core programs and were employed by the same
employer in the second and fourth quarters after exit; (2) Repeat
Business Customer: Percentage of employers who have used WIOA core
program services more than once during the last three reporting
periods; and (3) Employer Penetration: Percentage of employers using
WIOA core program services out of all employers in the State.
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\3\ This joint guidance, ``Performance Accountability Guidance
for Workforce Innovation and Opportunity Act (WIOA) Title I, Title
II, Title III, and Title IV Core Programs,'' was concurrently issued
on December 19, 2016, as TEGL No. 10-16 by the Department of Labor,
and as Office of Career, Technical, and Adult Education Program
Memorandum 17-2 and Rehabilitation Services Administration Technical
Assistance Circular (TAC) TAC-17-01 by the Department of Education.
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The Departments assessed the pilot through a DOL contract that
resulted in a final report titled Measuring the Effectiveness of
Services to Employers: Options for Performance Measures under the
Workforce Innovation and Opportunity Act (Final Pilot Study Report).\4\
Specifically, the study assessed each approach to defining the
effectiveness in serving employers performance indicator for validity,
reliability, practicality, and unintended consequences.\5\ Though the
study did not definitively recommend one approach, in assessing the
study's findings for each of the three approaches of the effectiveness
in serving employers performance indicator, the Departments concluded
that the Retention with the Same Employer approach provides a valid and
reliable approach to measuring the indicator, while also placing the
least amount of burden on States to implement.
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\4\ S. Spaulding, et al., ``Measuring the Effectiveness of
Services to Employers: Options for Performance Measures under the
Workforce Innovation and Opportunity Act,'' Jan. 2021, https://wdr.doleta.gov/research/FullText_Documents/ETAOP2021-17%20Measures%20of%20Effectiveness%20in%20Serving%20Employers_Final%20Report.pdf (hereinafter ``Final Pilot Study Report'').
\5\ See id. at 3-6 (stating that validity ``is used to assess
whether you are measuring what you intend to measure''; that
reliability ``refers to the ability to maintain consistency in data
collection over time and across the organizations collecting the
data''; that practicality means that the measure ``must be
relatively uncomplicated and simple to administer to avoid threats
to reliability and validity'' and ``must be practical to use in
administrating programs''; and that unintended consequences are
``negative consequences or behaviors that result . . . such as the
displacement of other goals or conflict between goals'').
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D. Effectiveness in Serving Employers Performance Indicator for WIOA
Title I Non-Core Programs
Although the four WIOA title I non-core programs discussed in this
rule--Job Corps, INA, NFJP, and YouthBuild--did not participate in the
core program pilot, these title I non-core program fund recipients
(i.e., Job Corps contractors and INA, NFJP, and YouthBuild grantees)
have been required to report on Retention with the Same Employer since
2019, following the issuance of Training and Employment Guidance Letter
(TEGL) No. 14-18 on March 25, 2019.\6\ In TEGL No. 14-18, the
Department
[[Page 13598]]
implemented WIOA's performance reporting requirements by requiring the
title I non-core programs to use the Retention with the Same Employer
definition of the effectiveness in serving employers performance
indicator.
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\6\ See Joint WIOA Final Rule, 81 FR 55791, 55845-55846
(discussing the pilot and the three proposed definitions for the
effectiveness in serving employers performance indicator); ETA, TEGL
No. 10-16, ``Performance Accountability Guidance for Workforce
Innovation and Opportunity Act (WIOA) Title I, Title II, Title III,
and Title IV Core Programs,'' Dec. 19, 2016, https://wdr.doleta.gov/directives/corr_doc.cfm?DOCN=8226; ETA, TEGL No. 14-18, ``Aligning
Performance Accountability Reporting, Definitions, and Policies
Across Workforce Employment and Training Programs Administered by
the U.S. Department of Labor (DOL),'' Mar. 25, 2019, https://wdr.doleta.gov/directives/corr_doc.cfm?docn=7611 (referring the
title I non-core programs to TEGL No. 10-16 for a description of the
pilot).
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Under this final rule, the WIOA title I non-core programs will be
subject to the same data collection and reporting requirements as they
have been under TEGL No. 14-18. The TEGL specified that, starting in
Program Year (PY) 2018 (or the point at which wage matching data
becomes available to the program), the Job Corps, INA, NFJP, and
YouthBuild programs were to begin tracking the effectiveness in serving
employers performance indicator using the Retention with the Same
Employer definition.
Consistent with related guidance issued in PYs 2016, 2017, and
2018,\7\ these programs were required to use the Workforce Integrated
Performance System (WIPS), the online performance reporting system for
the Department's employment and training grants,\8\ to submit
information that would be used for calculating the effectiveness in
serving employers performance indicator.\9\ These requirements are all
included in an existing information collection, the WIOA Participant
Individual Record Layout (PIRL) (ETA 9172), in the ``DOL-Only
Performance Accountability, Information, and Reporting System'' ICR,
approved under OMB Control Number 1205-0521.
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\7\ ETA, Training and Employment Notice (TEN) No. 08-16,
``Implementation of an Integrated Performance Reporting System for
Multiple Employment and Training Administration (ETA) and Veterans'
Employment and Training Service (VETS) Administered Programs,'' Aug.
24, 2016, https://wdr.doleta.gov/directives/attach/TEN/TEN_08-16.pdf; ETA, TEN No. 40-16, ``Workforce Integrated Performance
System (WIPS) User Resource Library Information Page,'' Apr. 11,
2017, https://wdr.doleta.gov/directives/attach/TEN/TEN_40-16_Acc.pdf.; ETA, TEGL No. 14-18, ``Aligning Performance
Accountability Reporting, Definitions, and Policies Across Workforce
Employment and Training Programs Administered by the U.S. Department
of Labor (DOL),'' Mar. 25, 2019, https://wdr.doleta.gov/directives/corr_doc.cfm?docn=7611.
\8\ ETA, ``Workforce Integrated Performance System (WIPS),''
https://www.dol.gov/agencies/eta/performance/wips (last visited
October 30, 2023).
\9\ Specifically, the programs are required to report the Social
Security Number (SSN) from the relevant participants who chose to
disclose their SSN in order to obtain an unemployment insurance (UI)
wage record match or may use available supplemental wage
information, as directed in program-specific guidance. These data
are used to identify whether a program participant's employer is the
same in the second and fourth quarters after exit from the program.
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By codifying the use of Retention with the Same Employer for this
indicator, this final rule requires programs to use already-collected
data and the existing performance reporting system, WIPS. Thus,
programs will not have additional burden to collect and report on any
other type of additional data to calculate and report results for other
possible approaches to defining this performance indicator.
Finally, TEGL No. 14-18 also put forth program-specific timelines
for implementation of the WIOA reporting requirements factoring in data
lags associated with the performance indicator as well as known
implementation actions such as case management system development,
which are further detailed in each program-specific section in the
section-by-section discussion of the final rule below (Section II).
In summary, for the Job Corps, INA, and YouthBuild programs, this
final rule codifies in regulation the existing practice of reporting
Retention with the Same Employer in order to measure a program's
effectiveness in serving employers and adds the option for WIOA title I
grantees and Job Corps contractors to choose to provide supplemental
wage information on the measure. The Department will use this same
definition for the effectiveness in serving employers performance
indicator for the NFJP program. Existing guidance in Appendix VI of
TEGL No. 14-18 addresses the use of supplemental wage information for
WIOA core performance indicators, so the use of supplemental wage
information will not be new to the regulated community. The Department
intends to issue updated guidance regarding use of supplemental wage
information specifically for the effectiveness in serving employers
performance indicator for these programs.
In the NPRM, the Department solicited comments to better inform
implementation of the effectiveness in serving employers performance
indicator for these programs, particularly challenges that they might
face in implementing this proposed definition of the effectiveness in
serving employers performance indicator; challenges they have faced
under TEGL No. 14-18; and other definitions that might be more
suitable.
E. Public Comments Received on the Proposed Rule
The NPRM invited written comments from the public concerning the
proposed rule through November 14, 2022. No commenters requested an
extension of the comment period. The comments received may be viewed by
entering docket number ETA-2022-0005 at https://www.regulations.gov.
The Department received 18 comments in the docket for this
rulemaking. Of these 18 comments, 10 were unique, 6 were form letter
copies, 1 was a duplicate, and 1 was outside the scope of the proposed
rule. Public sector commenters included State and local government
agencies and one-stop operators. Non-profit sector commenters included
professional associations and career or employment services providers.
The Department also received comments from anonymous commenters.
This section of the final rule provides a general overview of the
comments received. Section II (Section-by-Section Discussion of this
Final Rule) describes the comments in more detail and provides the
Department's responses to them.
Some commenters expressed overall concerns about and opposed the
proposed Retention with the Same Employer definition of the
effectiveness in serving employers performance indicator. Other
commenters suggested that the Department consider other potential
approaches for defining the effectiveness in serving employers
performance indicator. The Department's responses to concerns about
Retention with the Same Employer definition and suggestions for
alternative are discussed below in Section II.A.
With regard to impact or concerns about the four specific WIOA
title I non-core programs subject to this rule, the Department received
a total of three comments. The Department did not receive any comments
on the impacts of the proposed Retention with the Same Employer
effectiveness in serving employers definition on three of the four
programs: NFJP, Job Corps, or YouthBuild programs. The proposed
regulatory changes for the INA programs received one comment submission
that expressed concerns about reporting burden for INA programs under
the proposed rule and requested that the Department consult with the
WIOA sec. 166 programs, the Native American Employment and Training
Council (NAETC), and Tribal officials to develop and establish the
effectiveness in serving employers performance indicator. Another
commenter discussed the impact of the proposed rule on non-core WIOA
programs providing employment services to two specific target
demographics: justice-involved individuals and older workers. The
Department's responses to the INA-related comments are discussed below
in Section II.B and responses to comments for programs serving justice-
[[Page 13599]]
involved individuals and older workers are discussed below, in Section
II.F.
II. Section-by-Section Discussion of This Final Rule
Section II of this final rule provides the Department's responses
to comments and explains the two changes in the final rule from the
proposed rule. Section II.A discusses comments received on the proposed
definition for and implementation of the effectiveness in serving
employers performance indicator for the WIOA title I non-core programs.
Sections II.B, II.C, II.D, and II.E address comments received on the
proposed changes to ETA's INA program regulations (20 CFR part 684),
NFJP regulations (20 CFR part 685), Job Corps program regulations (20
CFR part 686), and YouthBuild program regulations (20 CFR part 688) to
adopt Retention with the Same Employer as the definition for the
effectiveness in serving employers performance indicator, respectively.
Section II.F discusses comments received relating to impacts that this
final rule could have on other non-core WIOA programs for which the
Department has applied the WIOA sec. 116 primary indicators of
performance.
A. Comments Received on the Effectiveness in Serving Employers
Performance Indicator, as Relevant to WIOA Title I Non-Core Programs
Support for Retention With the Same Employer Definition
Comments: Expressing support for Retention with the Same Employer,
one commenter argued that Retention with the Same Employer is easy to
administer and consistent across WIOA programs. Similarly, another
commenter stated that it would be the least burdensome of the WIOA core
programs' three piloted approaches to administer.
Department Response: We appreciate commenters supporting Retention
with the Same Employer as the definition for effectiveness in serving
employers. We agree that this definition best aligns with WIOA
employment performance indicators by using existing PIRL terms and data
elements (i.e., use of ``participants,'' ``unsubsidized employment,''
and ``exit'') and measuring the same quarters as the employment rate
indicators (i.e., the second and fourth quarters after program exit).
Additionally, we agree that Retention with the Same Employer is the
least burdensome definition of the WIOA core programs' three piloted
measures, effectively illustrates the workforce system's ability to
serve employers by reducing new employee turnover, and minimizes the
burden on WIOA title I non-core grantees and Job Corps contractors and
employers in measuring effectiveness in serving employers.
Retention With the Same Employer and Job Seeker/Worker Mobility
Comments: One commenter expressed concern that the Retention with
the Same Employer measure could limit job seekers' ability to move from
low-wage jobs into higher wage jobs. Another commenter stated that
measuring success through Retention with the Same Employer is contrary
to American Job Center (AJC) practice and DOL guidance encouraging job
seekers to work to gain skills and experience that allow them to move
to higher paying jobs. A third commenter also opposed the proposed
definition, stating that service providers do not play a significant
role in how long a participant decides to stay with the same employer.
Another commenter stated that high housing costs and inflation have
caused many workers to move and change employers, and Retention with
the Same Employer is a particularly undesirable measure in States where
many workers are transient.
Department Response: In the NPRM, the Department acknowledged that
the limitations for Retention with the Same Employer could include the
unintended consequences that this approach may be at odds with an
employee seeking a higher paying job or employment benefits, and the
possibility that the performance outcome for this indicator might not
be the result of an employer receiving a service from the workforce
development system. The Department agrees that many circumstances
affect an employer's retention of employees, some of which may be
outside the purview of WIOA services, including the general economy and
business landscape of an area, which may include seasonal employers,
transient worker populations, or industries with cyclical work cycles
that could impact calculated retention rates. However, the Department
determined that Retention with the Same Employer is the preferred
approach of measuring effectiveness in serving employers, due to the
prioritization of and weight placed on the advantages of Retention with
the Same Employer: stable data collection mechanism, alignment with
other employment performance indicators, and demonstrating maintained
relationships between employers and employees. For these reasons, the
Department defines effectiveness in serving employers for WIOA title I
non-core programs using Retention with the Same Employer in this final
rule.
The Department notes that individuals who move to a new job with
the same employer would be considered a successfully retained
participant under this indicator because the indicator measures
retention ``with the same employer'' in the second and fourth quarters;
there is no requirement the participant remain in the same employment
status (e.g., full-time vs. part-time) or position with the employer to
count as a positive outcome. The Department also notes that the
employer that will be measured for purposes of this indicator for this
particular participant is not always the same employer that received
services from a WIOA title I non-core program and initially hired the
participant.
The Department acknowledges that individuals may leave for higher
wages with a new employer, but WIOA title I non-core grantees and
program operators can seek to address these concerns in a variety of
ways that are beneficial to both the employer and the participant, such
as striving to find quality job placements or working with employers to
develop career pathways and good jobs that more effectively incentivize
participants they have hired to maintain their employment with the same
employer. Despite these concerns, the Department is adopting the
Retention with the Same Employer definition of the indicator for
multiple reasons, specifically because it: is the least burdensome
since it uses data elements reported by WIOA title I non-core grantees
and Job Corps contractors for other performance indicators; has a
stable data collection mechanism in that the requisite data are already
reported via an OMB-approved information collection request; aligns
with other employment performance indicators in that it uses similar
terminology and data elements; and demonstrates maintained
relationships between employers and employees, thereby demonstrating
that the services provided by the WIOA programs not only meet the long-
term needs of the participants but also the needs of employers in each
State. The Department gives particular weight to reporting burden,
especially for the competitive grantees with generally less reporting
capacity than States, in order to allow WIOA title I non-core grantees
and Job Corps contractors to focus on services and improve the accuracy
and completeness of the data.
[[Page 13600]]
Retention With the Same Employer and Other Aspects of Effectiveness in
Serving Employers
Comments: One commenter asserted that Retention with the Same
Employer has no mechanism for linking the retention of a particular
employee with instances of employer services being provided, therefore
only indirectly reflecting effectiveness in serving employers and
failing to inform strategic action to improve performance.
Another commenter noted Retention with the Same Employer does not
speak to ``acuity'' of a job placement (e.g., how difficult a position
was to fill, how in demand the position is, whether the role was
seasonal specific and not intended to maintain retention, rarity of
skill set, or time to hire).
One commenter asserted that the proposed measure is not a good
indicator of WIOA program performance because it is significantly
impacted by employers' choices as to wages, working conditions, and
workplace culture, over which WIOA programs have little control.
Another commenter expressed concern that Retention with the Same
Employer would not capture all services provided to employers by
workforce systems; in particular, services to employers that are not
attached to WIOA-funded job seekers.
Department Response: The Department recognizes that there are many
factors beyond the control of the programs that can impact a
participant's retention with the same employer. However, as noted
previously, the Department has determined that an indication that an
employee maintains employment with the same employer in both the second
and fourth quarters after exiting from a WIOA program demonstrates a
level of success for employers (i.e., successfully preparing
participants to fill jobs that meet employers' needs), as well as a
success for WIOA service providers in matching the employer with the
job seeker.
Regarding the commenter's concern that it would be inappropriate to
only measure success for WIOA-enrolled customers, the Department notes
that the services delivered by WIOA-funded program operators routinely
benefit the broader employer community by increasing basic skills of
the candidate pool, enhancing free job posting and search tools, and
preparing workplaces and job seekers with disabilities for successful
employment. Program participants who receive services that successfully
prepare them to fill jobs that meet employers' needs benefit all the
employers in the local economy, regardless of whether a specific
employer directly received services from a grantee. Therefore, the
Department has determined that excluding employers that have not
received a service from a grantee under a non-core program or a Job
Corps contractor within the reporting period is not an appropriate
holistic measure of the workforce system's impact on Retention with the
Same Employer.
In fact, such an approach would be contrary to the purpose of the
performance measure itself. For example, it would be possible for a
participant to obtain employment as a result of services received under
a WIOA title I non-core program, but change jobs within the first
quarter after exiting the program to a new job where the participant
remained for at least a year. In this final rule, the Department
defines the effectiveness in serving employers performance indicator as
the participant's Retention with the Same Employer in the second and
fourth quarters after exiting the program. In other words, in this
example, the employer that will be measured for purposes of this
indicator for this particular participant is not the same employer that
received services from a WIOA title I non-core program and initially
hired the participant. Regarding concerns that the Retention with the
Same Employer indicator does not measure the acuity of the WIOA
participant's job placement, the Department acknowledges that this
metric is one of many aspects of effectiveness in serving employers but
believes that retention is an important aspect to measure as stated by
employer representatives during stakeholder engagements. The Department
encourages grantees and contractors under WIOA title I non-core
programs to also measure effectiveness in serving employers using other
methods for their own program management purposes, though these other
methods are not required to be reviewed or submitted to the Department.
Regarding whether the proposed indicator measures all aspects of
effectiveness in serving employers, the Department believes there are
many aspects to a program's effectiveness in serving employers, some of
which are very difficult to quantify and report. Therefore, the
Department chose one aspect of effectiveness that employers stated
would be beneficial and can be measured across WIOA core programs and
title I non-core programs with minimal burden to employers--employee
retention.
Retention With the Same Employer Is Not a Good Fit for Certain Sectors
Comments: A commenter argued that Retention with the Same Employer
would be particularly problematic for seasonal employment in
agriculture, hospitality, and construction. This commenter urged the
Department to modify the statistical adjustment model to account for
fluctuations in the seasonal workforce.
Department Response: In cases of temporary seasonal work, WIOA
title I non-core grantees and Job Corps contractors should strive to
place participants into long-term employment opportunities when
possible. While a seasonal employee may not be a positive outcome in
the indicator, the Department understands this concern and does not
expect grantees and Job Corps contactors to achieve a 100 percent
positive outcome. The Department will take these factors into account
when analyzing a grantee's performance on this indicator. For example,
the Department could exercise its discretion when establishing
performance goals to set feasible targets for the grantee to meet
taking into account that programs that have high placement in seasonal
employment might have a lower retention rate than other programs.
Furthermore, for the INA and NFJP programs, the WIOA statute requires
the Department to use a statistical adjustment model, when practicable.
When the Department uses a statistical adjustment model for
establishing effectiveness in serving employers indicator targets for
WIOA title I non-core programs, the Department anticipates that the
statistical adjustment model will adjust for these issues.
Performance Goals for Retention With the Same Employer
Comment: One commenter asserted that, while the proposed measure
might be the least burdensome of the piloted measures, meeting
performance goals under it would be challenging and negate any cost
savings.
Department Response: The Department recognizes that drawbacks to
this definition exist for the WIOA title I non-core programs,
especially due to the unique nature of each of these programs.
Nevertheless, the Department believes that the benefits of this
approach outweigh those drawbacks. As explained above, the benefits of
this definition are that Retention with the Same Employer will be
straightforward to implement because the measure uses already-collected
data and the existing performance reporting system, thereby
[[Page 13601]]
avoiding any additional burden. Moreover, the Department intends to
mitigate any drawbacks, if necessary, by exercising its discretion, to
establish appropriate performance goals and place appropriate weight on
the effectiveness in serving employers performance indicator. WIOA
title I non-core programs that serve youth, for example, focus on
employment, career readiness, retention in education, and life skills
to support youth participants in obtaining academic and career skills
necessary to be successful in the job market, and success for youth is
more likely to include progression in jobs. Recognizing the unique
circumstances WIOA title I non-core programs may face, the Department
expects variability in the reported outcomes from program to program,
especially for programs serving youth, and intends to take this
variability into account when negotiating levels of performance. These
considerations are consistent with TEGL No. 14-18 guidance for
applicability of primary performance indicators, which specifies that,
as a general matter, participants' outcomes on the applicable primary
indicators of performance may be relevant for negotiating levels of
performance, decisions related to contract awards and renewal, and the
award of competitive grants.\10\
---------------------------------------------------------------------------
\10\ ETA, TEGL No. 14-18, ``Aligning Performance Accountability
Reporting, Definitions, and Policies Across Workforce Employment and
Training Programs Administered by the U.S. Department of Labor
(DOL),'' p. 8, Mar. 25, 2019, https://wdr.doleta.gov/directives/corr_doc.cfm?docn=7611.
---------------------------------------------------------------------------
Other Approaches To Measuring Effectiveness in Serving Employers
Comments: One commenter opposed to the proposed Retention with the
Same Employer definition and stated that the other piloted measures for
the WIOA core programs more directly relate to WIOA employer services
delivered. The commenter stated that the Repeat Business Customer
measure would reflect the employer's perception or experience of the
quality of services received and that the Employer Penetration measure
would represent the level of impact of employer services in a State.
Another commenter remarked that Retention with the Same Employer was
the least selected approach among the piloted measures for the WIOA
core programs.
Another commenter recommended that the Department review other
methods of assessing effectiveness in serving employers, including:
measuring the use of incumbent worker training to serve local
businesses, scored based on the overall percentage of WIOA funds used
and the number of businesses served. Another commenter recommended that
effectiveness in serving employers should positively count any
individual who is employed in the fourth quarter after exit and who has
improved either their wages, benefits, or working conditions since the
second quarter after exit, rather than only those with the same
employer. Another commenter asserted that the proposed rule does not
establish an objective standard for measuring effectiveness in serving
employers, and suggested that the measure could address timeliness,
professionalism, or English proficiency.
Department Response: The Department appreciates these suggestions
and acknowledges the potential benefits of the different proposed
approaches for measuring the effectiveness in serving employers
indicator, however the Department does not think that these metrics
apply well to the WIOA title I non-core programs due to differences in
program design. Additionally, the Department considered the possibility
of implementing more than one metric for measuring effectiveness in
serving employers. However, the Department determined a single
indicator approach is most logistically feasible due to its alignment
with the existing performance indicator structure (i.e., the
performance indicators for employment in the second and fourth quarters
after exit, which are existing performance indicators on which all
programs already report) and its reporting burden to WIOA title I non-
core program grantees and contractors and employers relative to the
other definitions piloted by the core programs.
The suggested alternative approaches mentioned in the comments,
such as Employer Penetration and Repeat Business Customer, were
ultimately not selected as the definition for the effectiveness in
serving employer performance indicator due to: (1) the nature of a very
low employer penetration rate compared to all businesses within a
State, leading to difficulties in improving the measure over time; and
(2) the fact that a satisfied business may not need to partner with the
State workforce system again. Additionally, these alternative measures
are not based on existing standardized reporting mechanisms and would
be impractical to apply to all grantees across WIOA core programs and
WIOA title I non-core programs.
Regarding the commenter's observation that the fewest number of
States selected Retention with the Same Employer measure for the WIOA
core program pilot and the commenter's interpretation that this lowest
adoption rate indicates that States did not think it was a useful
measure for the WIOA core program, the Department did not inquire why
States chose certain measures during the pilot period and notes that
there is no evidence that a lower adoption rate correlates with a lack
of usefulness in measuring effectiveness in serving employers in the
State . The Department notes that Retention with the Same Employer was
the easiest measure for States to implement for the WIOA core programs
based on it being calculated from existing PIRL elements. Therefore, it
is plausible that fewer States chose to pilot this measure for WIOA
core programs because they already knew how to calculate this measure
and would not have needed to test how to implement it in their State.
They may have wanted to assess how the two other pilot measures would
work for WIOA core programs.
The Department appreciates the commenters' ideas for additional
data points to be collected and encourages WIOA title I non-core
program grantees and Job Corps contractors to do so where it aids in
guiding service delivery policies. Specifically, a commenter
recommended including collecting and reporting data on: the number of
job orders posted and number of candidates referred per posting; use of
incumbent worker training (by percentage of WIOA funds used and number
of businesses served); number, array, and availability of business
services offered by a workforce development board or AJC; funding
passed from workforce development boards or AJCs through to local
businesses; or number of businesses engaged with Registered
Apprenticeship opportunities through workforce development boards or
AJCs. The Department declines to use these additional data points in
defining the effectiveness in serving employers indicator because they
are not applicable to all of the WIOA title I non-core programs and
would, therefore, not further the goal of consistent performance
measurement across all WIOA programs. In cases where the metric is a
count of services, these suggested data collection points would merely
measure the quantity of services provided to employers rather than the
effectiveness of those services rather than quality or effectiveness.
The Department believes these suggestions would measure outputs
compared to an outcome. In most cases, an output like the number of
services provided may not correlate to the ultimate goal, placing and
retaining quality employees
[[Page 13602]]
in this case, and therefore is not ideal for measuring effectiveness in
serving employers.
Regarding suggestions that the measure could address timeliness,
professionalism, or English proficiency of participants, the Department
has considered these approaches, but rejects them and declines to make
revisions. These types of factors are subjective, not easily
measurable, and may require the use of surveys. The Department notes
that employer satisfaction surveys introduce a higher level of burden
and potentially inconsistent results compared to the Retention with the
Same Employer metric. Furthermore, during previous webinars and town
halls with State workforce agencies, members of the employer community,
and other stakeholders that the Departments held in September and
October 2014 to inform the development of the Joint WIOA NPRM (80 FR
20609) and the Joint WIOA Final Rule (81 FR 55848), employers
specifically commented that they consider satisfaction surveys
burdensome and recommended they not be used in this indicator.
After careful consideration of public comment opportunities,
ongoing stakeholder engagement efforts,\11\ review of WIOA core program
pilot data and narrative input submitted since 2017 through required
annual performance reports for WIOA core programs,\12\ and a third-
party study, the Department is not persuaded to change course and adopt
either of the other alternative definitions for the effectiveness in
serving employers performance indicator for the WIOA title I non-core
programs. Instead, as discussed above, the Department concluded that
the Retention with the Same Employer approach provided a valid and
reliable approach to measuring the indicator while placing the least
amount of burden on WIOA title I non-core program grantees and Job
Corps contractors to implement.
---------------------------------------------------------------------------
\11\ ETA's WorkforceGPS technical assistance website provides
access to materials from trainings and stakeholder engagements,
including: (1) the Effectiveness in Serving Employers Resource Page
accessible at https://performancereporting.workforcegps.org/resources/2018/01/29/21/13/Effectiveness-in-Serving-Employers-Resource-Page; (2) the 2019 Performance Accountability Training
accessible at https://performancereporting.workforcegps.org/resources/2019/10/03/20/25/WIOA_2019_Performance_Accountability_Training; and (3) the January
2020 Peer Learning Group event accessible at https://www.workforcegps.org/events/2020/01/13/17/40/WIOA-Performance-Peer-Learning-Group-Effectiveness-in-Serving-Employers.
\12\ Annual performance reports can be found on ETA's website.
ETA, ``Workforce Performance Results,'' https://www.dol.gov/agencies/eta/performance/results (last visited Oct 30, 2023).
---------------------------------------------------------------------------
Data Sources for Retention With Same Employer
Comment: One commenter stated that workforce programs may not
receive hiring outcome information and may be unable to report data for
performance measures. The commenter also expressed concern that wage
records are not readily available for Federal, military, and self-
employment, which could significantly impact the reported performance
of States with high proportions of such employment.
Department Response: The Department proposed that the effectiveness
in serving employers indicator only include participants whose
employment status is obtainable through wage records because wage
records are the least burdensome records to use and they are the most
standardized and statistically valid records available. Most employers
are covered through unemployment insurance (UI) wage records and,
therefore, wage records remain the most accurate and least burdensome
method of calculating this indicator.
However, the Department acknowledges that certain categories of
employment, such as entrepreneurial employment, Federal employment,
employment with the U.S. Postal Service and the military, and farmwork,
are not reflected in State UI wage record databases. Additionally,
participants are not required to provide Social Security numbers, which
are needed to use wage records, to obtain services and some
participants may be reluctant to share this information.
To ensure that effectiveness in serving these additional employers
is assessed, the Department concurs with commenters that the Retention
with the Same Employer measure should be expanded to include the number
of participants with wage records or supplemental wage information who
exit during the reporting period and were employed by the same employer
during the second quarter after exit and the fourth quarter after exit
divided by the number of participants with wage records or supplemental
wage information who exit and were employed during the second quarter
after exit. Organizations collecting supplemental wage information for
the purposes of calculating Retention with the Same Employer must be
able to ascertain that the participant's wage information reflects the
same establishment (which may include tax documents, payroll records,
employer records, and follow-up surveys from program participants) in
both the second and fourth quarters after exit.
The Department agrees that supplemental wage information could play
a vital role when wage records are either unavailable for a participant
or difficult to obtain. For this reason, we have revised proposed
Sec. Sec. 684.460(a)(6), 684.620(a)(6), 686.1010(f), and 688.400(f) to
remove the requirement that wage records be used to document a
participant's employment status for purposes of the effectiveness in
serving employers performance indicator. This change allows for the
effectiveness in serving employers indicator to include the same data
sources as other employment-based primary indicators of performance,
including supplemental wage information.
As noted above, the Department also wants to make clear the final
rule uses the term ``unsubsidized employment'' to align the
effectiveness in serving employers performance indicator to WIOA
statutory language, specifically referring to unsubsidized employment
in the second and fourth quarters after exit, which are key inputs to
this indicator's definition of Retention with the Same Employer. These
changes to the Sec. 677.155 regulatory text for WIOA core programs
have been carried over to this final rule at revised Sec.
684.460(a)(6) for INA Youth, revised Sec. 684.620(a)(6) for INA,
revised Sec. 686.1010(f) for Job Corps, and revised Sec. 688.400(f)
for YouthBuild, where the regulatory text changes were intended to
align with the Sec. 677.155 WIOA core programs definition of the
effectiveness in serving employers performance indicator.
B. Part 684--Indian and Native American Programs
Part 684 governs the INA programs authorized under WIOA sec. 166,
including programs for Native American youth (INA Supplemental Youth
Services). The INA programs are intended to support employment and
training activities for INA program participants in order to develop
more fully academic, occupational, and literacy skills and to serve
unemployed and low-income Indian and Native American populations
seeking to achieve economic self-sufficiency consistent with the goals
and values of the particular communities. Where active, INA programs
are required one-stop center partners. The Department administers these
programs to maximize Federal commitment to support the growth and
development of INAs and their communities as determined by
representatives of such communities while meeting the applicable
statutory and regulatory requirements.
[[Page 13603]]
WIOA sec. 166(h)(2) requires the Department to reach an agreement
with the entities described in WIOA sec. 166(c) as to the levels of
performance required for each core indicator, including an
effectiveness in serving employers performance indicator. The
Department is also required to work with the NAETC to develop a set of
performance indicators and standards for the INA adult and youth
programs in addition to the primary indicators used to measure
performance (WIOA sec. 166(h)(1)(A)).
Section III.F of this document, which pertains to Executive Order
(E.O.) 13175 (Indian Tribal Governments), summarizes details from the
Department's efforts to engage with INA program grantees and
representatives of Tribal entities to explain how the indicator works
and receive feedback on concerns INA program grantees may have with the
effectiveness in serving employers performance indicator.
In response to the NPRM, the Department received feedback on the
proposed use of Retention with the Same Employer as the effectiveness
in serving employers performance indicator for INA programs.
Comments: A commenter expressed concern that the proposed rule
would increase the reporting burden for the INA programs under WIOA
sec. 166 due to the greater complexity of the performance measures used
and urged the Department to consider how effectiveness in serving
employers performance indicator will be implemented and managed. The
commenter suggested that grantees should not be penalized if reported
outcomes do not meet established target levels for the effectiveness in
serving employers performance indicator, and that the indicator should
instead serve only as ``credit for job retention as required by the
program.''
The commenter also discussed the regulatory background requiring
WIOA sec. 166 programs to be consistent with the self-determined
economic and social development goals of the Indian, Alaska Native, and
Hawaiian communities served, the Indian Self-Determination and
Education Assistance Act, and the government-to-government relationship
between the Federal Government and Indian Tribal Governments, and
concluded that the effectiveness in serving employers performance
measure does not meet the needs of the communities represented and
should not be applied to the WIOA INA programs for adult and youth.
Department Response: The Department appreciates concerns about
reporting burden and acknowledges the challenges related to reporting
for INA program grantees. The Department continues to work to ensure
that all INA program grantees have the systems and resources needed to
report the information required for this performance indicator. Part of
this is accomplished by the Department continuing to conduct UI wage
record matching on behalf of grantees for all employment-related
performance indicators to mitigate any reporting burdens. Because the
final rule adds the option for grantees to provide supplemental wage
information, but does not require use of supplemental information,
grantees may elect to rely on UI wage record matching as the Department
conducts wage matching on behalf of INA grantees. The Department also
notes that this final rule is codifying in regulations what is already
required of grantees currently in the ``DOL-Only Performance
Accountability, Information, and Reporting System'' ICR, approved under
OMB Control Number 1205-0521, and therefore grantees should not see an
increased burden in reporting on the effectiveness in serving employers
indicator.
The Department acknowledges the commenter's concern about the
impact of the effectiveness in serving employers indicator on grantee
performance reports. The Department intends to exercise its discretion
to place appropriate weight on the effectiveness in serving employers
performance indicator relative to other indicators of performance in
assessing current or past grantee performance. For example, the
Department could exercise its discretion when reviewing grantee
performance during monitoring in order to take all indicators into
consideration including the additional measures described in TEGL No.
04-19, ``Waiver Authority for the INA Program and Implementation of
Additional Indicators of Performance,'' discussed further below. The
Department could also exercise its discretion when setting criteria in
grant competitions, such as limiting the weight the Department places
on previous performance of this measure or only considering it
alongside the employment goals, economic situation, and unique
circumstances of the individuals the grantee serves. Recognizing the
unique circumstances WIOA title I non-core programs may face, the
Department expects variability in the reported outcomes from program to
program, especially for programs serving youth, and intends to take
this variability into account when establishing levels of performance.
These considerations are consistent with TEGL No. 14-18 guidance for
applicability of primary performance indicators, which specifies that,
as a general matter, participants' outcomes on the applicable primary
indicators of performance may be relevant for establishing levels of
performance, decisions related to contract awards and renewal, and the
award of competitive grants.\13\
---------------------------------------------------------------------------
\13\ ETA, TEGL No. 14-18, ``Aligning Performance Accountability
Reporting, Definitions, and Policies Across Workforce Employment and
Training Programs Administered by the U.S. Department of Labor
(DOL),'' p. 8, Mar. 25, 2019, https://wdr.doleta.gov/directives/corr_doc.cfm?docn=7611.
---------------------------------------------------------------------------
The Department also notes that WIOA sec. 166(i)(3) and the WIOA
regulations at 20 CFR part 684, subpart I allow the Department to waive
requirements, including performance requirements, that are inconsistent
with the specific needs of INA grantees if certain conditions are met.
Based on consultation with the NAETC, the Department issued guidance
TEGL No. 04-19, ``Waiver Authority for the INA Program and
Implementation of Additional Indicators of Performance,'' \14\ which
explains how INA grantees can request waivers of performance
indicators. With this final rule and consistent with this waiver
guidance, the Department will accept and promptly make determinations
on requests submitted by grantees for waivers of performance
indicators, including effectiveness in serving employers, so that
grantees can structure their performance indicators to best fit the
economic circumstances of the communities served and improve positive
outcomes.
---------------------------------------------------------------------------
\14\ ETA, TEGL No. 04-19, ``Waiver Authority for the INA Program
and Implementation of Additional Indicators of Performance,'' Aug.
29, 2019, https://wdr.doleta.gov/directives/attach/TEGL/TEGL_4-19_acc.pdf.
---------------------------------------------------------------------------
The Department appreciates the commenter's suggestion to use the
effectiveness in serving employers indicator as a ``credit,'' rather
than for assessing the performance of the grantee. However, the
Department has determined that WIOA sec. 166(h) requires the use of all
performance indicators under WIOA sec. 116(b)(2)(A), including the
indicator on effectiveness in serving employers at sec.
116(b)(2)(A)(i)(VI), for assessing performance. Moreover, the
Department disagrees that using this measure as a ``credit'' is
appropriate. The Department recognizes that there are many ways to
consider the success of grantees in addition to performance measurement
outcomes. The Department gathers qualitative information from grantees
in grant competitions and through grant
[[Page 13604]]
monitoring to consider the totality of grantee performance. Therefore,
the Department will not use this indicator as a ``credit.'' The
Department notes that WIOA sec. 116(h)(2) requires the Department to
reach agreement on the levels of performance with grantees taking into
account economic conditions, characteristics of the individuals served,
and other appropriate factors. The Department will take these factors
into consideration in establishing the anticipated level of performance
on this indicator and, as mentioned above, the Department intends to
exercise its discretion and apply appropriate weight to the
effectiveness in serving employers performance indicator relative to
the other primary indicators of performance in assessing current or
past grantee performance.
Regarding the commenter's conclusion that performance measures do
not meet the needs of the communities represented and should not be
applied to the WIOA INA programs for adult and youth, the Department
acknowledges the concerns of Tribal communities and their unique needs.
The Department notes that WIOA makes provision for the Department to
negotiate additional performance indicators and standards taking into
account the needs of participants and the economic circumstances of the
communities INA program grantees serve. See WIOA sec. 166(h)(1). The
Department has negotiated these additional performance indicators which
are described in TEGL No. 04-19. INA program grantee performance also
is assessed based on these outcomes. Effectiveness in serving employers
is not the only metric for assessing INA program grantee performance.
We also note that WIOA requires the performance of these programs
to be measured using the WIOA sec. 116 six statutory indicators of
performance, including effectiveness in serving employers.
Specifically, WIOA sec. 166(h)(2) requires the Secretary to reach
agreement on the levels of performance for each of the primary
indicators of performance described in WIOA sec. 116(b)(2)(A), which
includes the effectiveness in serving employers indicator.
Further, as explained above, the benefits of defining this measure
using Retention with the Same Employer, including that it minimizes
reporting burdens for INA program grantees, outweigh the drawbacks, as
well as providing more benefits than the use of either of the other
performance indicator definitions piloted by the core programs. To
fulfill the intent of WIOA's common performance accountability system,
the final rule defines effectiveness in serving employers for the INA
programs using the Retention with the Same Employer approach so that
the Department can measure effectiveness in serving employers
consistently across core programs and the WIOA title I non-core
programs.
The commenter also requested that the Department consult with the
WIOA sec. 166 programs, the NAETC, and Tribal officials in the
development and establishment of the effectiveness in serving employers
performance indicator definition. As further detailed below in Section
III.F, the Department conducted a Tribal consultation to consult with
Tribal leaders and WIOA sec. 166 grantees.
Section 684.460--What performance indicators are applicable to the
supplemental youth services program?
Section 684.460(a) sets out the performance indicators that apply
to INA youth programs, including an indicator of the effectiveness of
serving employers--specifically in paragraph (a)(6)--as established
under WIOA sec. 116(b)(2)(A)(iv). The NPRM proposed to change the
language in paragraph (a)(6) to align with the effectiveness in serving
employers performance indicator language proposed at Sec.
677.155(a)(1)(vi) in the Joint WIOA Effectiveness in Serving Employers
NPRM. For the reasons discussed earlier in this section, the Department
affirms the approach of aligning changes to Sec. 684.460(a)(6) with
the effectiveness in serving employers performance indicator language
adopted for WIOA core programs in the Joint WIOA Effectiveness in
Serving Employers Final Rule.
The final rule implements the Sec. 684.460(a)(6) changes as
proposed, except with minor modifications reflecting the revisions made
to Sec. 677.155(a)(1)(vi) in the Joint WIOA Effectiveness in Serving
Employers Final Rule. Specifically, Sec. 684.460(a)(6) defines the
required effectiveness in serving employers performance indicator as
the percentage of participants in unsubsidized employment during the
second quarter after exit from the program who were employed by the
same employer in the second and fourth quarters after exit. As
discussed above, these revisions from the proposed rule align the
regulations for INA youth program with the Joint WIOA Effectiveness in
Serving Employers Final Rule and remove the requirement that wage
records be used to document a participant's employment status for
purposes of the effectiveness in serving employers performance
indicator, thereby allowing for the use of supplemental wage
information. Additionally, Sec. 684.460(a)(6) now uses the term
``unsubsidized employment'' to better align with WIOA statutory
language, specifically referring to unsubsidized employment in the
second and fourth quarters after exit, which are key inputs to the
definition of Retention with the Same Employer.
Section 684.620--What performance indicators are in place for the
Indian and Native American program?
Section 684.620(a) lists the performance indicators used to
evaluate the INA programs, including an effectiveness in serving
employers performance indicator. Like the changes to Sec.
684.460(a)(6), the Department is revising the language at Sec.
684.620(a)(6) to define the required effectiveness in serving employers
performance indicator as the percentage of participants in unsubsidized
employment during the second quarter after exit from the program who
were employed by the same employer in the second and fourth quarters
after exit. This definition of effectiveness in serving employers at
Sec. 684.620(a)(6) aligns with the effectiveness in serving employers
performance indicator language at Sec. 677.155(a)(1)(vi), as discussed
above.
C. Part 685--National Farmworker Jobs Program
Part 685 establishes regulations for NFJP, authorized in title I,
subtitle D of WIOA. The NFJP is a nationally directed, locally
administered program of services for migrant and seasonal farmworkers
(MSFW) and their dependents. Grant recipients help program participants
acquire new skills to either stabilize or advance their agricultural
careers or obtain employment in a new industry. The program also works
to meet the critical need of safe and sanitary permanent and temporary
housing for farmworkers and their families.
Section 167(c)(3) of WIOA (29 U.S.C. 3222) requires the Department
to use the six WIOA primary indicators of performance, including the
effectiveness in serving employers performance indicator, to assess the
performance of the NFJP. As explained in the proposed rule, part 685
specifies that NFJP grantees providing career services and training
must use the indicators of performance described in WIOA sec.
116(b)(2)(A) (Sec. 685.400(a) and (b)) but does not list each
performance indicator. Therefore, the Department did not propose any
changes to part 685.
[[Page 13605]]
NFJP housing grantees, which provide housing assistance rather than
training and employment placement services, are required to report a
different set of performance indicators as defined in Sec. 685.400(c),
specifically the total number served of eligible MSFWs, other
individuals, eligible MSFW families, and other families. Therefore, the
revised definition of the effectiveness in serving employers
performance indicator in 20 CFR part 677 finalized in the Joint WIOA
Effectiveness in Serving Employers Final Rule applies to NFJP career
services grantees but not housing grantees.
The Department notes that this will have no noticeable change to
procedures for career services grantees, as they already report this
information in accordance with TEGL No. 14-18, using the Retention with
the Same Employer definition of the performance indicator.
No comments were received on the applicability of the effectiveness
in serving employers performance indicator to the NFJP in response to
the proposed rule. With the Joint WIOA Effectiveness in Serving
Employers Final Rule, NFJP career services grantees will use the
revised definition of the effectiveness in serving employers
performance indicator in 20 CFR part 677.
D. Part 686--Job Corps Program
Part 686 establishes regulations for the Job Corps program,
authorized in title I, subtitle C of WIOA. Job Corps is a no-cost
education and career technical training program administered by the
Department, which includes 121 Job Corps centers across the United
States. The program aims to help young people--ages 16 to 24--gain
academic credentials and career technical training skills and secure
quality employment. No comments were received on the proposed changes
to part 686 and, thus, the Department adopts the proposed changes to
Sec. 686.1010, with minor revisions, as described below.
Job Corps historically has used post-separation surveys to capture
post-program employment results. Job Corps' current surveys (OMB
Control Number 1205-0426) are administered to participants immediately
following the second and fourth quarters after exit and capture
information related to whether they are employed or in an educational
or training program during those quarters and if they have attained any
additional certifications or credentials after exit from the program.
In PY 2018, Job Corps revised the reporting periods in the post-
separation surveys to replace program-specific definitions of the
second and fourth quarters after exit with the same definitions used by
other DOL employment and training programs.
This definitional shift created alignment with quarterly wage
records and facilitated calculation of common exit and outcomes across
WIOA programs. With this change in definition, Job Corps has been able
to apply the effectiveness in serving employers performance indicator
as it is described in TEGL No. 14-18, using the Retention with the Same
Employer definition of the performance indicator. While the post-
separation surveys are a supplemental data source for reporting on the
primary indicators of performance, Job Corps did not gain access to
wage record matches, the primary data source, until the fourth quarter
of PY 2020. All reported outcomes for Job Corps prior to this period
were based solely on the supplemental data source. Job Corps began
certifying its program results in WIPS for all the primary measures of
performance, including the Retention with the Same Employer indicator,
in the first quarter of PY 2020.
Starting with the fourth quarter of PY 2020, Job Corps obtained
quarterly wage record matches and, combined with the supplemental data
from the surveys, has been able to report fully on the primary measures
of performance, including the Retention with the Same Employer
indicator.
Section 686.1010--What are the primary indicators of performance for
Job Corps centers and the Job Corps program?
Section 686.1010 lists the primary indicators used to measure the
performance of Job Corps centers, which includes the effectiveness in
serving employers performance indicator. This performance indicator is
reported based on data collected from former students during the second
and fourth quarters after exit.
No comments were received on the applicability of the effectiveness
in serving employers performance indicator to the Job Corps Program in
response to the proposed rule. However, as discussed above, the final
rule implements the Sec. 686.1010(f) changes as proposed, but with
minor modifications reflecting the revisions made to Sec.
677.155(a)(1)(vi) in the Joint WIOA Effectiveness in Serving Employers
Final Rule. Specifically, revised Sec. 686.1010(f) defines the
required effectiveness in serving employers performance indicator as
the percentage of participants in unsubsidized employment during the
second quarter after exit from the program who were employed by the
same employer in the second and fourth quarters after exit.
E. Part 688--YouthBuild Programs
Part 688 establishes regulations for the YouthBuild programs,
authorized in title I, subtitle D of WIOA. YouthBuild is a pre-
apprenticeship program that provides education and job training
opportunities for at risk youth (ages 16-24) who have dropped out of
school, or subsequently re-enrolled, and meet certain other
requirements. Program participants learn vocational skills focused on
the construction industry, as well as other in-demand industries
including healthcare, information technology, and hospitality, while
also earning their high school diploma. No comments were received on
the proposed changes to part 688 and, thus, the Department adopts the
proposed changes to Sec. 688.400, with minor revisions, as described
below.
Section 688.400--What are the performance indicators for YouthBuild
grants?
Section 688.400 lists the primary indicators used to measure the
performance of YouthBuild programs, which also includes a performance
indicator for effectiveness in serving employers.
No comments were received on the applicability of the effectiveness
in serving employers performance indicator to the YouthBuild programs
in response to the proposed rule. However, as discussed above, the
final rule implements the Sec. 688.400(f) changes as proposed, but
with minor modifications reflecting the revisions made to Sec.
677.155(a)(1)(vi) in the Joint WIOA Effectiveness in Serving Employers
Final Rule. Specifically, finalized Sec. 688.400(f) defines the
required effectiveness in serving employers performance indicator as
the percentage of participants in unsubsidized employment during the
second quarter after exit from the program who were employed by the
same employer in the second and fourth quarters after exit.
F. Impacts of the Final Rule on Other Non-Core WIOA Programs for Which
the Department Has Applied WIOA Sec. 116 Primary Indicators of
Performance
Although WIOA only mandated the use of the sec. 116 performance
indicators for the four non-core programs addressed in this final rule,
the Department has chosen to apply the sec. 116 performance indicators
to other non-core programs to assess program performance, including REO
grants (authorized under WIOA sec. 169 and
[[Page 13606]]
annual appropriations acts).\15\ The NPRM stated that, for these
programs, the proposed definition of the effectiveness in serving
employers performance indicator also would be applied. The Department
maintains this same position in this final rule and intends to continue
to apply the same definition of effectiveness in serving employers to
these other non-core programs after publication of this final rule.
---------------------------------------------------------------------------
\15\ Pages 2 through 5 of TEGL No. 14-18, ``Aligning Performance
Accountability Reporting, Definitions, and Policies Across Workforce
Employment and Training Programs Administered by the U.S. Department
of Labor (DOL),'' provide the current list of DOL-administered non-
core programs for which DOL has chosen to apply these performance
reporting requirements, which include programs authorized by WIOA,
as well as programs authorized by other Federal legislation. ETA,
TEGL No. 14-18, Mar. 25, 2019, https://wdr.doleta.gov/directives/corr_doc.cfm?docn=7611.
---------------------------------------------------------------------------
Comment: One commenter discussed the impact of the proposed rule on
the REO grants program, which provides employment services to justice-
involved individuals. The commenter argued that performance
accountability for the WIOA non-core programs should reflect the
distinct populations served by those programs (e.g., reentry programs
help justice-involved individuals overcome barriers to employment). As
the NPRM noted, the commenter remarked, a limitation of the Retention
with the Same Employer measure of effectiveness in serving employers is
that it may not reflect the career path of greatest opportunity for
those employment program participants who seek to change their jobs for
improved opportunities, which the commenter said is a point of
particular concern for REO grant program participants who are
reentering the job market after leaving the justice system. The
commenter wrote that while gaining work experience is ``an important
first step toward a rewarding career'' for justice-involved
individuals, continuing with the same employer could deny them
opportunities to achieve greater financial stability and advance in
their careers.
The commenter also stated a concern with the proposed requirement
that REO programs collect and report supplemental wage information,
discussing the ways this requirement to retain paystubs or other wage
documentation would put a distinct burden on REO program staff to
collect additional information and follow up with program participants.
The commenter also expressed concern that disclosure of a program
participant's criminal background to an employer could limit the
participant's prospects for job placement. The commenter suggested that
supplemental wage data should be accessible from the employment
programs themselves, not the employers, in order to give program
participants the best chance at moving forward and to best fulfill the
missions of these programs.
To address these concerns, the commenter recommended the Department
do the following:
Provide clear program guidance for REO program grantees on
regulatory definitions.
Determine that grantees can access wage record data in
order to report employment outcomes of program participants.
Consider other performance outcomes that would capture
effectiveness in serving employers and provide a benefit to fair-chance
employers, like the Federal bonding program and Work Opportunity Tax
Credit do.
Find measures of program performance that align with the
goals of providing the best chances for success for justice-involved
individuals.
Department Response: While reporting this performance indicator
contributes to the holistic data analysis of the workforce system, the
Department recognizes that drawbacks to this proposed definition exist
for the title I non-core programs, especially due to the unique nature
of programs focused on youth and justice-involved individuals.
Nevertheless, the Department believes that the benefits of this
approach outweigh those drawbacks. Moreover, the Department intends to
mitigate these drawbacks, if necessary, by exercising its discretion to
place appropriate weight on the effectiveness in serving employers
performance indicator relative to the other primary indicators of
performance in assessing current or past grantee performance.
As the commenter mentions, success for justice-involved individuals
is more likely to include progression in jobs. Recognizing the unique
circumstances such as this, the Department expects variability in the
reported outcomes from program to program and intends to take this
variability into account when negotiating levels of performance. These
considerations are consistent with TEGL No. 14-18 guidance for
applicability of primary performance indicators, which specifies that,
as a general matter, participants' outcomes on the applicable primary
indicators of performance may be relevant for negotiating levels of
performance, decisions related to contract awards and renewal, and the
award of competitive grants.\16\
---------------------------------------------------------------------------
\16\ ETA, TEGL No. 14-18, ``Aligning Performance Accountability
Reporting, Definitions, and Policies Across Workforce Employment and
Training Programs Administered by the U.S. Department of Labor
(DOL),'' p. 8, Mar. 25, 2019, https://wdr.doleta.gov/directives/corr_doc.cfm?docn=7611.
---------------------------------------------------------------------------
It should be kept in mind that the effectiveness in serving
employers performance indicator is unique among all other indicators in
that it is employer-focused. Employers are critical partners with WIOA
title I non-core programs in providing quality services and employment
opportunities to program participants. Furthermore, there is anecdotal
evidence from employers, as well as a few small studies that suggest
justice-involved individuals tend to have lower turnover rates relative
to the average employee.\17\ Tracking this performance indicator will
provide further evidence to evaluate the potential employer benefit for
hiring justice-involved individuals.
---------------------------------------------------------------------------
\17\ Patricia M. Harris and Kimberly S. Keller, ``Ex-Offenders
Need Not Apply: The Criminal Background Check in Hiring Decisions,''
Journal of Contemporary Criminal Justice, 2005, pages 6-30, https://journals.sagepub.com/doi/10.1177/1043986204271678; Jennifer Hickes
Lundquist, Devah Pager, and Eiko Strader, ``Does a Criminal Past
Predict Worker Performance? Evidence from One of America's Largest
Employers,'' Social Forces, March 2018, pages 1039-1068, https://academic.oup.com/sf/article-abstract/96/3/1039/4802355?redirectedFrom=fulltext; Dylan Minor, Nicola Persico, and
Deborah M. Weiss, ``Criminal Background and Job Performance,'' Feb.
3 2017, https://insight.kellogg.northwestern.edu/article/should-you-hire-someone-with-a-criminal-record; Oluwasegun Obatusin and Debbie
Ritter-Williams, ``A phenomenological study of employer perspectives
on hiring ex-offenders,'' Cogent Social Sciences, Feb. 14, 2019,
https://doi.org/10.1080/23311886.2019.1571730; Pamela D. Paulk,
``The Johns Hopkins Hospital Success in Hiring Ex-Offenders,'' May
2015, https://www.bgcheckinfo.org/sites/default/files/public/5thMtg_1-0c-Plenary_Pamela_Paulk_Presentation.pdf; SHRM Foundation,
``2021 Getting Talent Back to Work Report,'' 2021, https://www.gettingtalentbacktowork.org/wp-content/uploads/2021/05/2021-GTBTW_Report.pdf; Prison Fellowship, ``6 Lessons for Employers
Considering Hiring Former Prisoners,'' Prison Fellowship,'' https://www.prisonfellowship.org/resources/support-friends-family-of-prisoners/supporting-successful-prisoner-reentry/6-lessons-for-employers-considering-hiring-former-prisoners/ (last visited Nov. 9,
2023).
---------------------------------------------------------------------------
The Department also notes that while this indicator allows for the
use of supplemental wage information, collecting such information is
not mandatory. ETA will continue to conduct UI wage matching on behalf
of reentry grantees for this and other employment-related performance
indicators to reduce the burden of collecting this information
manually. Therefore, it is not necessary for grantees to have access to
wage record data to comply with this reporting requirement.
[[Page 13607]]
The Department considered the commenter's request that the other
performance outcomes be used such as is done with the Federal bonding
program and the Work Opportunity Tax Credit. However, the Department
has determined Retention with the Same Employer is appropriate after
piloting three approaches of the effectiveness in serving employers
performance indicator. The Department concluded that the Retention with
the Same Employer approach provides a valid and reliable approach to
measuring the indicator, while also placing the least amount of burden
on REO grant recipients to implement.
The Department will update guidance and technical assistance on
this topic for reentry grantees as needed following the publication of
the final rule.
Comment: One commenter discussed the impact of the proposed rule on
Senior Community Service Employment Program (SCSEP), which provides
employment services to older workers. The commenter discussed the
unique needs and employment patterns of the older workers served by
SCSEP programs, who may have more ``fluid'' employment patterns than
other workers due to health issues, caregiving obligations, or
preferences for part-time employment. The commenter wrote that the
SCSEP program it administers uses surveys to assess employer
satisfaction and expressed interest in continuing this practice,
stating that it provides depth of analysis and affords careful delivery
of targeted programs utilizing strong employer partnerships. The
commenter urged the Department to allow these assessment practices to
continue in order to best maintain targeted SCSEP program deliverables
for the target population of older workers.
To address these concerns, the commenter recommended the Department
do the following:
Retain the current definition and practices for assessing
effectiveness of SCSEP programs in serving employers.
Provide clear guidance on any intentions to change
definitions of the performance indicator of effectiveness in serving
employers for SCSEP programs.
Department Response: The Department notes that this indicator does
not apply to the SCSEP program grantees, and the Department will not be
making changes to any SCSEP definitions as a result of this rule.
Comment: Discussing the impact of the proposed rule on non-core
WIOA programs providing employment services to justice-involved
individuals and older workers, a commenter argued that the Department
has an obligation to provide clear guidance to program grantees working
with these target populations on the implications of the rulemaking
process and possible implementation of rule changes. Relatedly, the
commenter suggested that the Department should continue to work with
reentry service providers, SCSEP providers, and related stakeholders to
best address the needs of the target populations by providing further
opportunities to share insights, present feedback, and raise concerns
and questions on the proposed rule.
Department Response: The Department is committed to providing clear
guidance and technical assistance to grantees in implementing any
changes, and notes that this rule does not change any current practices
for reentry providers and SCSEP providers.
III. Regulatory Analysis and Review
A. Executive Orders 12866 (Regulatory Planning and Review), 13563
(Improving Regulation and Regulatory Review), and 14094 (Modernizing
Regulatory Review) and Subtitle E of the Small Business Regulatory and
Fairness Act of 1996)
Under E.O. 12866, the Office of Information and Regulatory Affairs
(OIRA) determines whether a regulatory action is significant and,
therefore, subject to the requirements of the E.O. and review by OMB.
See 58 FR 51735 (Oct. 4, 1993). Section 1(b) of E.O. 14094 amends sec.
3(f) of E.O. 14094 to define a ``significant regulatory action'' as an
action that is likely to result in a rule that may: (1) have an annual
effect on the economy of $200 million or more, or adversely affect in a
material way the economy, a sector of the economy, productivity,
competition, jobs, the environment, public health or safety, or State,
local, territorial, or tribal governments or communities (also referred
to as economically significant); (2) create a serious inconsistency or
otherwise interfere with an action taken or planned by another agency;
(3) materially alter the budgetary impact of entitlements, grants, user
fees, or loan programs, or the rights and obligations of recipients
thereof; or (4) raise legal or policy issues for which centralized
review would meaningfully further the President's priorities or the
principles set forth in the E.O. See 88 FR 21879 (Apr. 11, 2023). This
final rule is a significant regulatory action under section 3(f) of
E.O. 12866, as amended by E.O.14094.
E.O. 13563 directs agencies to propose or adopt a regulation only
upon a reasoned determination that its benefits justify its costs; the
regulation is tailored to impose the least burden on society,
consistent with achieving the regulatory objectives; and in choosing
among alternative regulatory approaches, the agency has selected those
approaches that maximize net benefits. E.O. 13563 recognizes that some
benefits are difficult to quantify and provides that, where appropriate
and permitted by law, agencies may consider and discuss qualitatively
values that are difficult or impossible to quantify, including equity,
human dignity, fairness, and distributive impacts.
1. Outline of the Analysis
Section III.A.2 provides a summary of the results of the RIA.
Section III.A.3 describes the need for the final rule, and Section
III.A.4 describes the process used to estimate the costs of the final
rule and the general inputs used, such as wages and number of affected
entities. Section III.A.5 explains how the provisions of the final rule
will result in quantifiable costs and presents the calculations the
Department used to estimate them. In addition, Section III.A.5
describes the qualitative benefits of the final rule. Section III.A.6
summarizes the estimated first-year and 10-year total and annualized
costs of the final rule. Finally, Section III.A.7 describes the
regulatory alternatives considered when developing the final rule.
2. Analysis Overview
The Department did not receive comments on the proposed rule
economic analysis. Changes in this final rule economic analysis include
updating wage rates and the number of affected entities to reflect the
most recent data available. The new wage rates and affected entities
are presented in Section III.A.4.
The Department estimates that the final rule will result in costs
and qualitative benefits. As shown in Exhibit 1, the final rule is
expected to have a one-time cost of $52,223. The Department estimates
that the final rule will result in an annualized net quantifiable cost
of $7,435 at a discount rate of 7 percent and expressed in 2022
dollars.
Exhibit 1--Estimated Monetized Costs of the Final Rule
[2022 dollars]
------------------------------------------------------------------------
Cost
------------------------------------------------------------------------
10-Year Total with a Discount Rate of 3%................ $52,223
10-Year Total with a Discount Rate of 7%................ 52,223
10-Year Average......................................... 5,222
[[Page 13608]]
Annualized at a Discount Rate of 3%..................... 6,122
Annualized at a Discount Rate of 7%..................... 7,435
------------------------------------------------------------------------
The cost of the final rule is associated with rule familiarization
for all 121 Job Corps centers and 97 career transition service
providers for a total of 218 Job Corps entities, 53 NFJP career service
and training grantees, 64 INA youth grantees, 97 INA adult grantees,
and 237 YouthBuild grantees.\18\ See the costs subsections of Section
III.A.5 (Subject-by-Subject Analysis) below for a detailed explanation.
---------------------------------------------------------------------------
\18\ The 237 YouthBuild entities consist of grantees within each
of the four currently active grant classes (68 grantees in the 2022
class, 68 grantees in the 2021 class, 68 grantees in the 2020 class,
and 34 grantees in the 2019 grant class).
---------------------------------------------------------------------------
The Department cannot quantify the benefits of the final rule;
therefore, Section III.A.5 (Subject-by-Subject Analysis) describes the
benefits qualitatively.
3. Need for Regulation
This final rule is necessary to complete implementation of the
performance accountability requirements as discussed in the Joint WIOA
Final Rule and required by statute. WIOA included a common performance
accountability system, consisting of six statutory primary indicators
of performance, applicable to all WIOA core programs: adult, dislocated
worker, and youth programs under title I of WIOA; the AEFLA program
under title II; the ES program authorized under the Wagner-Peyser Act
as amended by WIOA title III; and the VR program authorized under title
I of the Rehabilitation Act, as amended by WIOA title IV. WIOA also
required that the six statutory primary indicators of performance apply
to four WIOA title I, DOL-administered non-core programs: INA, NFJP,
Job Corps, and YouthBuild (``title I non-core programs''). The statute
defines five of the six performance indicators. However, WIOA did not
specify how effectiveness in serving employers should be measured.
Instead, WIOA directed the Departments to develop a definition for the
effectiveness in serving employers performance indicator (WIOA sec.
116(b)(2)(A)(iv)). In the Joint WIOA Final Rule, the Departments
determined that it was prudent to pilot three definitions for the sixth
performance indicator, which measures a State's effectiveness in
serving employers through its WIOA-authorized programs. As explained
earlier in this final rule, that pilot, as well as a study of the
results from the pilot, Measuring the Effectiveness of Services to
Employers: Options for Performance Measures Under the Workforce
Innovation and Opportunity Act \19\ (Final Pilot Study Report), is now
complete. The Departments are engaging in two rulemakings to
incorporate into the WIOA regulations a standard definition of the
performance indicator for effectiveness in serving employers. This
performance indicator definition is meant to apply to both WIOA core
programs--which are addressed in the concurrently published Joint WIOA
Effectiveness in Serving Employers Final Rule--as well as the four
title I non-core programs, which are addressed in this final rule. This
rule codifies the use of all the primary performance indicators for the
evaluation of title I non-core program performance--including the
effectiveness in serving employers indicator--just as with the WIOA
core programs.
---------------------------------------------------------------------------
\19\ See S. Spaulding, et al., ``Measuring the Effectiveness of
Services to Employers: Options for Performance Measures under the
Workforce Innovation and Opportunity Act,'' Jan. 2021, Chapter 5
(Alternative Measures and Data Sources), https://wdr.doleta.gov/research/FullText_Documents/ETAOP2021-17%20Measures%20of%20Effectiveness%20in%20Serving%20Employers_Final%20Report.pdf.
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4. Analysis Considerations
a. Baseline for Title I Non-Core Programs: Indian and Native American,
National Farmworker Jobs, Job Corps, and YouthBuild
The Department estimated the costs of the final rule relative to
the existing baseline. The Department determined that the final rule
will result in no change from the baseline for the title I non-core
programs. As a result, the Department estimates only the costs of rule
familiarization for the title I non-core programs.
WIOA secs. 159(c)(1) (Job Corps), 166(e)(5) (INA), 167(c)(2)(C)
(NFJP), and 171(f)(1) (YouthBuild) specify that performance for these
title I non-core programs must be assessed using the WIOA sec. 116
primary indicators of performance for WIOA core programs. In this final
rule, the Department is codifying the approach for evaluating a
program's effectiveness in serving employers, as put into practice
through previously issued guidance \20\ and the ``DOL-Only Performance
Accountability, Information, and Reporting System'' ICR, approved under
OMB Control Number 1205-0521 for the title I non-core programs.
---------------------------------------------------------------------------
\20\ ETA, TEGL No. 14-18, ``Aligning Performance Accountability
Reporting, Definitions, and Policies Across Workforce Employment and
Training Programs Administered by the U.S. Department of Labor
(DOL),'' Mar. 25, 2019, https://wdr.doleta.gov/directives/corr_doc.cfm?docn=7611.
---------------------------------------------------------------------------
All title I non-core programs, except the INA Supplemental Youth
Services program, are able to report the Retention with the Same
Employer definition of effectiveness in serving employers performance
indicator, as required in TEGL No. 14-18, through WIPS or GPMS. Unlike
the other title I non-core programs, the INA Supplemental Youth
Services program is not currently reporting, and will not immediately
be able to report, the effectiveness in serving employers performance
indicator. The INA Supplemental Youth Services case management system
is available for grantees to enter data for youth participants who were
served on or after April 15, 2023, and produces program reports.
Because grantees are still tracking in legacy systems the data for
participants whose services began before April, INA youth grantees
will, for a period of time, use WIOA transition authority with regard
to collecting and reporting on WIOA performance indicators, including
the effectiveness in serving employers performance indicator. The
Department is continuing, independent of this rulemaking, to build new
functionality into the recent case management system for INA youth
grantees that provides for the collection and reporting of the
effectiveness in serving employers performance indicator. Therefore,
this final rule does not impose any new cost associated with the case
management system. When the case management system is built, the INA
youth grantees will use it to collect and report the outcomes for the
effectiveness in serving employers performance indicator. The use of
the new system to report the effectiveness in serving employers
performance indicator will impose a de minimis cost for the INA youth
grantees. When the INA Supplemental Youth Services case management
system is complete, the INA youth program grantees would face a de
minimis cost associated with reporting the effectiveness in serving
employers performance indicator in the new system.
Exhibit 2 presents the number of entities the Department expects
the final rule to affect. The Department provides these estimates and
uses them to
[[Page 13609]]
calculate the cost of rule familiarization for the title I non-core
programs.
Exhibit 2--Title I Non-Core Programs Number of Affected Entities by Type
------------------------------------------------------------------------
Entity type Number
------------------------------------------------------------------------
Job Corps:
Current centers..................................... 121
Career transition service providers................. 97
NFJP:
Career services and training grantees............... 53
Indian and Native American:
Number of INA youth grants awarded under WIOA sec. 64
166................................................
Grantees for the Comprehensive Services Program/INA 97
adult program......................................
YouthBuild:
Grantees in active grant classes.................... 237
------------------------------------------------------------------------
b. Compensation Rates
In Section III.A.5 (Subject-by-Subject Analysis), the Department
presents the costs, including labor, associated with the final rule.
Exhibit 3 presents the hourly compensation rates for the occupational
categories expected to experience a change in level of effort
(workload) due to the final rule. We use the Bureau of Labor Statistics
(BLS) mean hourly wage rate for local government employees.\21\ To
reflect total compensation, wage rates include nonwage factors such as
overhead and fringe benefits (e.g., health and retirement benefits). We
use an overhead rate of 17 percent \22\ and a fringe benefits rate of
62 percent,\23\ which represents the ratio of average total
compensation to average wages for State and local government workers in
March 2022. We then multiply the sum of the loaded wage factor and
overhead rate by the corresponding occupational category wage rate to
calculate an hourly compensation rate.
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\21\ BLS, ``May 2022 National Industry-Specific Occupational
Employment and Wage Estimates: NAICS 999300--Local Government,
excluding schools and hospitals (OEWS Designation),'' https://www.bls.gov/oes/current/naics4_999300.htm (last updated April 25,
2023).
\22\ U.S. Environmental Protection Agency, ``Wage Rates for
Economic Analyses of the Toxics Release Inventory Program,'' June
10, 2002, https://www.regulations.gov/document/EPA-HQ-OPPT-2018-0321-0046. DOL has used 17 percent in prior final rules including
the Adverse Effect Wage Rate Methodology for the Temporary
Employment of H-2A Nonimmigrants in Non-Range Occupations in the
United States Final Rule (RIN 1205-AC05), Temporary Agricultural
Employment of H-2A Nonimmigrants in the United States (RIN 1205-
AB89), Cranes and Derricks in Construction: Railroad Roadway Work
(RIN 1218-AD07), and Occupational Exposure to Beryllium and
Beryllium Compounds in Construction and Shipyard Sectors Final Rule
(RIN 1218-AD29).
\23\ BLS, ``Employer Costs for Employee Compensation--March
2022,'' June. 16, 2022, https://www.bls.gov/news.release/archives/ecec_06162022.pdf. Calculated using Table 1. Employer Costs for
Employee Compensation by ownership
Exhibit 3--Compensation Rates
[2022 dollars]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Hourly
Position Grade level Base hourly Loaded wage factor Overhead costs compensation
wage rate rate
(a) (b) (c) d = a + b + c
--------------------------------------------------------------------------------------------------------------------------------------------------------
Management Analyst....................................... N/A $43.61 $27.04 ($43.61 x 0.62) $7.41 ($43.61 x 0.17) $78.06
--------------------------------------------------------------------------------------------------------------------------------------------------------
5. Subject-by-Subject Analysis
The Department's analysis below covers the estimated cost of the
final rule.
c. Costs
The following sections describe the costs of the final rule.
(1) DOL-Only Non-Core Programs Rule Familiarization
INA, YouthBuild, NFJP, and Job Corps programs would need to
familiarize themselves with the new regulation. Consequently, this will
impose a one-time cost in the first year.
To estimate the first-year cost of rule familiarization for INA,
YouthBuild, NFJP, and Job Corps programs, the Department multiplied the
estimated number of management analysts (1) by the time required to
read and review the rule (1 hour), and by the applicable hourly
compensation rate ($78.06/hour). We multiplied this result by the
number Job Corps active centers (218), NFJP grantees (53), INA Youth
program grantees (64), INA Adult program grantees (97), and the number
of YouthBuild grantees (237). This calculation yields $52,536 in one-
time labor costs for Job Corps, NFJP, YouthBuild, INA Youth, and INA
Adult programs to read and review the rule. Over the 10-year period of
analysis, these estimated one-time costs result in an average annual
cost of $5,222 undiscounted, or $6,122 and $7,435 at discount rates of
3 and 7 percent, respectively.
d. Qualitative Benefits Discussion
(1) General Benefits of Measuring Effectiveness in Serving Employers
The Department cannot quantify the final rule's benefits associated
with improving the title I non-core programs' effectiveness in serving
employers. Measuring effectiveness in serving employers allows title I
non-core programs to set goals, monitor, and learn how to serve
employers more effectively.\24\ Reporting a measure of effectiveness in
serving employers also helps Federal, State, and local policymakers
evaluate program performance and inform future policy changes to better
meet program goals, particularly providing employers with skilled
workers and other services.
---------------------------------------------------------------------------
\24\ S. Spaulding, et al., ``Measuring the Effectiveness of
Services to Employers: Options for Performance Measures under the
Workforce Innovation and Opportunity Act (Research Report),'' Jan.
2021, https://www.urban.org/sites/default/files/publication/104160/measuring-the-effectiveness-of-services-to-employers_1_0.pdf.
---------------------------------------------------------------------------
The Department cannot quantify these estimated benefits because we
do not have quantitative data on how the effectiveness in serving
employers performance indicator has influenced program implementation
and how much it would influence future policies.
(2) Specific Benefits of Reporting Retention With the Same Employer
Requiring the calculation and reporting of Retention with the Same
Employer as the effectiveness in serving employers performance
indicator will make it easier to compare WIOA title I
[[Page 13610]]
non-core programs' effectiveness in serving employers performance
across grant programs. Retention with the Same Employer demonstrates a
continued relationship between the employer and participants who have
exited WIOA programs. While many circumstances can have an impact on an
employer's retention of employees, an indication that an employee is
still working for the same employer in both the second and fourth
quarters after exiting from a WIOA program demonstrates a level of
success for both parties, as retention of an employee reduces the costs
to the employer associated with employee turnover and retraining. Thus,
reporting Retention with the Same Employer can help inform design and
implementation of program services to reduce job turnover and improve
employer-employee match quality. Improved matching and reduced turnover
allow employees and employers to operate closer to their productive
potential and can make it more worthwhile for employers to invest in
training its employees and for employees to invest in learning
employer-specific skills.
6. Summary of the Analysis
The Department estimates the total net cost of the final rule at
$52,223 at a discount rate of 7 percent. The Department estimates the
annualized net cost of the final rule at $7,435 at a discount rate of 7
percent. Exhibit 4 summarizes the estimated cost of the final rule over
the 10-year analysis period.
Exhibit 4--Estimated Monetized Costs of the Final Rule
[2022 dollars]
------------------------------------------------------------------------
Costs
------------------------------------------------------------------------
2024.................................................... $52,223
2025.................................................... 0
2026.................................................... 0
2027.................................................... 0
2028.................................................... 0
2029.................................................... 0
2030.................................................... 0
2031.................................................... 0
2032.................................................... 0
2033.................................................... 0
10-Year Total with a Discount Rate of 3%................ 52,223
10-Year Total with a Discount Rate of 7%................ 52,223
10-Year Average......................................... 5,222
Annualized with a Discount Rate of 3%................... 6,122
Annualized with a Discount Rate of 7%................... 7,435
------------------------------------------------------------------------
7. Regulatory Alternatives
The Department considered two alternatives to the finalized
definition of the effectiveness in serving employers performance
indicator. First, the Department considered requiring use of the
Employer Penetration pilot approach, which reports the percentage of
employers using services out of all employers in the State. This
approach would have required counts of services provided to employers
requiring States and local areas to report unique counts of employer
establishments receiving services through WIOA's programs. Employer
Penetration would require a more data-intensive analysis than the
Retention with the Same Employer approach. Employer Penetration would
have the benefit of capturing the extent to which employers within a
State are engaged with WIOA-funded services and would provide State
programs an incentive to work with additional employers. In the Final
Pilot Report Study, the Department found weaknesses in this pilot
approach including: (1) emphasis on quantity rather than quality or
intensity of the employer service provided; (2) reliability issues
associated with data entry and the process to count unique
establishments; (3) measurement of program output rather than outcome;
(4) potential for creation of perverse incentives to prioritize program
breadth rather than depth in service and delivery; and (5) lack of
sensitivity to industry sectors targeted by State and local workforce
agencies.\25\
---------------------------------------------------------------------------
\25\ S. Spaulding, et al., ``Measuring the Effectiveness of
Services to Employers: Options for Performance Measures under the
Workforce Innovation and Opportunity Act (Research Report),'' Jan.
2021, https://www.urban.org/sites/default/files/publication/104160/measuring-the-effectiveness-of-services-to-employers_1_0.pdf.
---------------------------------------------------------------------------
The Department considered a second regulatory alternative that
would require the use of the Repeat Business Customer approach to the
effectiveness in serving employers performance indicator, which reports
the percentage of employers receiving services in a year who also
received services within the previous 3 years. This approach to the
effectiveness in serving employers measure requires counts of services
provided to employers through WIOA's programs. Repeat Business Customer
requires a more data-intensive analysis than the proposed approach of
Retention with the Same Employer. Repeat Business Customer captures the
extent to which employers within a State can find workers and the
employer's level of satisfaction with the public workforce system
services. In the Final Pilot Study Report, the Department found
weaknesses in this pilot approach including that it: (1) may provide a
disincentive to reach out to new employers; (2) is subject to variation
in industry and sector economic conditions; and (3) may require a SAM
to mitigate the weaknesses and improve implementation and
interpretation.\26\
---------------------------------------------------------------------------
\26\ S. Spaulding, et al., ``Measuring the Effectiveness of
Services to Employers: Options for Performance Measures under the
Workforce Innovation and Opportunity Act,'' Jan. 2021, https://wdr.doleta.gov/research/FullText_Documents/ETAOP2021-17%20Measures%20of%20Effectiveness%20in%20Serving%20Employers_Final%20Report.pdf.
---------------------------------------------------------------------------
The Department prefers the Retention with the Same Employer
approach because it has data more readily available and, therefore, it
is less burdensome. The Retention with the Same Employer approach
better aligns with workforce system goals of matching employers with
job seekers and reducing turnover without the weaknesses associated
with the other two approaches to defining the effectiveness in serving
employers performance indicator. In addition, because title I non-core
programs are already required to report the Retention with the Same
Employer measure, the two alternative measures would impose new costs
to affected entities associated with collecting data, calculation of,
and reporting the alternative measure.
B. Regulatory Flexibility Act, Small Business Regulatory Enforcement
Fairness Act, and Executive Order 13272 (Proper Consideration of Small
Entities in Agency Rulemaking)
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601 et seq.,
as amended by the Small Business Regulatory Enforcement Fairness Act of
1996, Public Law 104-121 (Mar. 29, 1996), requires Federal agencies
engaged in rulemaking to consider the impact of their proposals on
small entities, consider alternatives to minimize that impact, and
solicit public comment on their analyses. The RFA requires the
assessment of the impact of a regulation on a wide range of small
entities, including small businesses, not-for-profit organizations, and
small governmental jurisdictions. Agencies must perform a review to
determine whether a proposed or final rule would have a significant
economic impact on a substantial number of small entities. 5 U.S.C. 603
and 604.
The Department finds that this final rule will not have a
significant economic impact on a substantial number of small entities.
Based on this determination, the Department certifies
[[Page 13611]]
that this final rule does not have a significant economic impact on a
substantial number of small entities. This finding is supported, in
large measure, by the fact that small entities are already receiving
financial assistance under WIOA. In addition, the calculated cost of
this rule is a one-time per-entity cost of $78.06 associated with rule
familiarization and would therefore have a de minimis impact on any
particular entity.
This final rule can be expected to impact small entities within the
Job Corps, NFJP, and INA programs. These small entities can be, for
example, Tribal or non-profit grantees, including regionally focused
entities. The Department has estimated costs that are new to this final
rule. As discussed in Section III.A, the calculated cost of this rule
is a one-time per-entity cost of $78.06 associated with rule
familiarization and would, therefore, have a de minimis impact on any
one particular entity. Therefore, the Department certifies that this
final rule does not have a significant economic impact on a substantial
number of small entities.
C. Paperwork Reduction Act
The Department previously submitted and received OMB approval for
the information collection discussed above (OMB Control Number 1205-
0521) in Section I, Background and Rulemaking Authority. See ICR
Reference Number 202104-1205-003 (OMB Control Number 1205-0521). This
final rule does not modify any of the content in the exiting OMB
Control Number 1205-0521.
D. Executive Order 13132 (Federalism)
E.O. 13132 aims to guarantee the division of governmental
responsibilities between the National Government and the States and to
further the policies of the Unfunded Mandates Reform Act of 1995
(UMRA). Accordingly, E.O. 13132 requires executive departments and
agencies to ensure that the principles of federalism guide them in the
formulation and implementation of policies. Further, agencies must
adhere to constitutional principles, examine the constitutional and
statutory authority supporting a regulation that would limit the
policymaking discretion of the States, and assess the need for such a
regulation. To the extent practicable, agencies must consult State and
local officials before implementing any such regulation.
E.O. 13132 further provides that agencies must implement a
regulation that limits the policymaking discretion of the States only
where there is constitutional and statutory authority for the
regulation and it addresses a problem of national significance. For a
regulation administered by the States, the National Government must
grant the States the maximum administrative discretion possible to
avoid intrusive Federal oversight of State administration, and agencies
must adhere to special requirements for a regulation that preempts
State law. E.O. 13132 also sets forth the procedures that agencies must
follow for certain regulations with federalism implications, such as
preparation of a summary impact statement.
Accordingly, the Department has reviewed this WIOA-required final
rule and has concluded that the rule has no Federalism implications.
This final rule has no substantial direct effects on States, on the
relationships between the States, or on the distribution of power and
responsibilities among the various levels of government as described by
E.O. 13132. Therefore, the Department has concluded that this final
rule does not have a sufficient Federalism implication to warrant the
preparation of a summary impact statement.
E. Unfunded Mandates Reform Act
UMRA directs agencies to assess the effects of Federal regulatory
actions on State, local, and Tribal governments, as well as the private
sector. A Federal mandate is any provision in a regulation that imposes
an enforceable duty upon State, local, or Tribal governments, or
imposes a duty upon the private sector that is not voluntary.
Following consideration of the above factors, the Department has
concluded that this final rule contains no unfunded Federal mandates,
which are defined in 2 U.S.C. 658(6) to include either a ``Federal
intergovernmental mandate'' or a ``Federal private sector mandate.'' No
additional burden related to reporting the effectiveness in serving
employers performance indicator is being placed on State, local, and
Tribal governments, as this information already is being collected and
reported on. Furthermore, the reporting is a contingent to receiving
Federal program funding. Any associated reporting mandate cannot,
therefore, be considered ``unfunded.'' Because the decision by a
private training entity to participate as a provider under a WIOA core
program is purely voluntary, the information collection burden does not
impose a duty on the private sector that is not voluntarily assumed.
F. Executive Order 13175 (Indian Tribal Governments)
The Department reviewed this final rule, as well as the Joint WIOA
Effectiveness in Serving Employers Final Rule published concurrently
with this final rule elsewhere in this issue of the Federal Register,
under the terms of E.O. 13175 and DOL's Tribal Consultation Policy (77
FR 71833 (Dec. 4, 2012)) and has determined that it will have Tribal
implications, because the final rule would have substantial direct
effects on: one or more Indian Tribes; the relationship between the
Federal Government and Indian Tribes; or the distribution of power and
responsibilities between the Federal Government and Indian Tribes.
Therefore, the Department prepared a Tribal summary impact statement.
Engagement With Indian Tribes
The Department engaged with INA grantees and the Tribal community
at several points in this rulemaking. Prior to issuing the NPRM, the
Department held two events to consult with INA program grantees and
representatives of Tribal institutions about their experiences with the
implementation and operation of the effectiveness in serving employers
performance indicator. These two events consisted of a town hall
meeting attended both in person and virtually and a formal consultation
webinar. The town hall, entitled ``Town Hall Discussion: Effectiveness
in Serving Employers Performance Indicator,'' occurred on September 21,
2021, at the 41st National Indian and Native American Employment and
Training conference.\27\ The consultation webinar, entitled ``Tribal
Consultation for WIOA Effectiveness in Serving Employers Indicator
Proposed Rulemaking,'' occurred on October 19, 2021.\28\ At the
consultation webinar, the Department provided an opportunity for
stakeholders to submit written feedback through DOL's Tribal
consultation email account by October 29, 2021. The Department did not
receive any written
[[Page 13612]]
feedback through DOL's Tribal consultation email account but received
one letter after the consultation period for October 2021 consultation
webinar, which raised similar issues to those articulated at the
consultation event and summarized below. This letter was not formally
considered during the development of the NPRM due to the late nature of
its submission, though it raised similar issues to those articulated at
the consultation event and summarized below.
---------------------------------------------------------------------------
\27\ NAETC, ``41st National Indian and Native American
Employment and Training Program,'' Sept. 20-23, 2021, http://www.ninaetc.net/41%20NINAETC%20PROGRAM_FINAL.pdf.
\28\ DOL, ``Tribal Consultation for WIOA Effectiveness in
Serving Employers Indicator Proposed Rulemaking,'' https://www.workforcegps.org/events/2021/09/14/13/57/Tribal-Consultation-for-WIOA-Effectiveness-in-Serving-Employers-Indicator-Proposed-Rulemaking (last visited Nov. 10, 2023); see also ``Tribal
Consultation; Workforce Innovation and Opportunity Act,
Implementation of the Effectiveness in Serving Employers Performance
Indicator; Notice of Tribal Consultation; Virtual Meeting,'' 86 FR
54244 (Sept. 30, 2021).
---------------------------------------------------------------------------
After the release of the NPRM, the Department discussed the NPRM
with NAETC at the October 2022 NAETC meeting.\29\ During this
discussion, the Department encouraged submission of comments on the
NPRM. In response to the NPRM, the Department received one public
comment submission, which is discussed above in Section III.F, and that
requested that the Department consult with the WIOA sec. 166 programs,
the NAETC, and Tribal officials in order to develop and establish the
performance indicator.
---------------------------------------------------------------------------
\29\ Meeting proceedings are located on the NAETC web page. ETA,
``Native American Employment and Training Council,'' https://www.dol.gov/agencies/eta/dinap/council (last visited Nov. 10, 2023).
---------------------------------------------------------------------------
Summary of Concerns
These various engagements provided the Department with feedback
from the INA community, Tribal representatives, and the general public
that indicating several areas of interest concerning the definition of
the effectiveness in serving employers performance indicator for WIOA
programs. These concerns are summarized below.
Employer, Wage, or Position Changes
Consultation participants expressed concern about impacts of
individuals changing employers for higher wages or different positions.
Specifically, several consultation participants asked how the Retention
with the Same Employer definition of the performance indicator would
apply to individuals who have continuous employment through the second
and fourth quarters, but with different employers. Some consultation
participants expressed concern that this definition of the performance
indicator would not consider individuals who advance to better
employment opportunities. One consultation participant expressed
concern that the program would be penalized if employees change
employers.
Temporary, Seasonal, and Youth Employment
Many consultation participants expressed concern about how
temporary jobs, such as seasonal or contract-based employment, would be
considered. Specifically, one consultation participant gave an example
of contractor jobs where individuals may not stay with the same
employer and instead change from job to job, such as in construction.
Additionally, another consultation participant stated that employers
that regularly lay off and then rehire employees would affect outcomes.
A consultation participant asked if this measure applies to the INA
youth program. Another consultation participant expressed concern about
the impact on performance of limited-duration summer employment
opportunities for high school students within INA youth programs. The
consultation participants also questioned DOL's willingness to invest
in developing a data collection and reporting process for INA youth
programs.
Other consultation participants expressed concern about how
seasonal jobs would be addressed and that certain areas have more
seasonal employment than other areas do. Another consultation
participant stated that individuals who participate in the program on a
short-term basis while serving time with the Department of Corrections
and later return to a different State may impact the performance
indicator calculation. A different consultation participant stated that
many participating employers primarily provide entry-level positions
focused on gaining work experience.
Performance Indicator Calculation
Many consultation participants inquired about how the performance
indicator is calculated. One consultation participant asked a question
in which the sound quality of the audio was not clear. However, the
subject-matter expert interpreted the question to ask if supplemental
wages are considered. One consultation participant stated that UI
records may not capture individuals who are self-employed. Another
consultation participant said that certain States do not have access to
UI information that would enable them to calculate the performance
indicator.
Many consultation participants suggested other ways to calculate
the performance indicator. Examples provided by one consultation
participant included employer satisfaction surveys, number of employers
served, number of repeat employers, and number of job fairs coordinated
with employers. Another consultation participant said they measure
success when an employer enquires about recent graduates to fill open
positions. A different consultation participant stated that they
understood the options DOL considered for how to measure effectiveness
in serving employers to include how well programs have assisted
employers in hiring new employees through job fairs, work experience to
full[hyphen]time hires, pre[hyphen]screening of candidates, and
individual hiring events for specific employers.
Tribal Community Impacts
Some consultation participants had questions and comments about how
the performance indicator would specifically impact Tribal communities.
One consultation participant expressed the need for consideration of
all Tribal communities and their unique needs. The consultation
participant stated that measures used for all INA programs must not
only satisfy the intent of the performance indicator but also be
meaningful, which is part of the purpose of WIOA sec. 166. The
commenter also suggested that grantees should establish a work group
within the NAETC to develop information to share with Tribal leaders so
that they have background and can communicate what these performance
indicators would mean for INA programs.
Another consultation participant cited the DOL-commissioned third-
party study of the performance indicator, ``Measuring the Effectiveness
of Service to Employers,'' and questioned why some States with many
Indian and Native American participants were not included in the pilot
study. The consultation participant also asked if any INA WIOA programs
were included in the study. Additionally, a consultation participant
said that DOL is seeking support from Tribes on how to measure a
performance indicator they may not want.
Process Questions and Other Observations
Many consultation participants asked questions about the rulemaking
process and how the Department decided on the proposed definition of
the performance indicator. Some consultation participants asked if this
performance indicator is required. One consultation participant asked
if the performance indicator can be customized based on the grantee's
status, for example with different requirements for rural and urban
programs. A different consultation participant asked if DOL would
decide after consultation with Tribes whether or not to apply the
performance indicator to INA programs. Other consultation participants
asked if the definition of this performance
[[Page 13613]]
indicator would be permanent or if it would be re-evaluated in the
future. Additionally, a consultation participant asked if they could
review the draft rule with others before it is published, when the
proposed rule would be published, and when the final rule would take
effect.
A consultation participant asked if other performance indicator
definitions have been submitted for consideration, for example from the
NAETC. Another consultation participant stated that grantees with
direct employer relationships differ from grantees that work with AJCs
to facilitate employment for employers. Additionally, a consultation
participant asked how grantees can assist participants who are facing
issues at a new employment site, such as being picked on or treated
unfairly, and whether it would be appropriate to act as a mediator
between the employer and the participant.
Need for the Regulation
The Department appreciates the valuable feedback received through
these engagements with INA program grantees and representatives of
Tribal institutions and has considered this feedback carefully in
crafting this final rule and its planned implementation. The
effectiveness in serving employers performance indicator is required by
the WIOA statute for the INA program, as WIOA sec. 166(h)(2) requires
using the primary indicators of performance described in sec.
116(b)(2)(A). Therefore, the Department has determined that a standard
definition for the effectiveness in serving employers performance
indicator would be proposed and finalized for the INA program. As such,
the Department is aligning its definition of this indicator for the
sec. 166 INA program with the WIOA Effectiveness in Serving Employers
Joint Final Rule.
However, the Department acknowledges the concerns raised through
the consultations. In recognition of these concerns, the Department
intends to take several steps to address these matters. First, as
discussed above in Section III.F, the Department will exercise its
discretion to place appropriate weight on the effectiveness in serving
employers performance indicator in assessing INA grantee performance.
The Department recognizes the unique circumstances INA grantees may
face and the expects variability in the reported outcomes from program
to program, especially for programs serving youth, and intends to take
this variability into account when establishing levels of performance.
These considerations are consistent with TEGL No. 14-18 guidance for
applicability of primary performance indicators, which specifies that,
as a general matter, participants' outcomes on the applicable primary
indicators of performance may be relevant for establishing levels of
performance, decisions related to contract awards and renewal, and the
award of competitive grants.
Second as explained above in Section I.D and III.F, the Department
notes that the selected measure should not impose any additional burden
on INA program grantees as the definition of the effectiveness in
serving employers measure will not require any additional reporting
from INA program grantees above what is currently collected for the
approved ``DOL-Only Performance Accountability, Information, and
Reporting System'' ICR.
Finally, the Department reaffirms the ability of INA program
grantees to request a waiver of performance indicators as described in
TEGL No. 04-19, ``Waiver Authority for the INA Program and
Implementation of Additional Indicators of Performance,'' and discussed
above in Section III.F. As part of the implementation of this final
rule, the Department will provide dedicated technical assistance to INA
program grantees regarding the use of this indicator.
List of Subjects
20 CFR Part 684
Employment, Grant programs--labor, Indians, Reporting and
recordkeeping requirements.
20 CFR Part 686
Employment, Grant programs--labor, Job Corps.
20 CFR Part 688
Employment, Grant programs--labor, Youth, YouthBuild.
For the reasons discussed in the preamble, the Department of Labor
proposes to amend 20 CFR parts 684, 686, and 688 as follows:
PART 684--INDIAN AND NATIVE AMERICAN PROGRAMS UNDER TITLE I OF THE
WORKFORCE INNOVATION AND OPPORTUNITY ACT
0
1. The authority citation for part 684 continues to read as follows:
Authority: Secs. 134, 166, 189, 503, Pub. L. 113-128, 128 Stat.
1425 (Jul. 22, 2014).
Subpart D--Supplemental Youth Services
0
2. Amend Sec. 684.460 by revising paragraph (a)(6) to read as follows:
Sec. 684.460 What performance indicators are applicable to the
supplemental youth services program?
(a) * * *
(6) The percentage of participants in unsubsidized employment
during the second quarter after exit from the program who were employed
by the same employer in the second and fourth quarters after exit.
* * * * *
Subpart F--Accountability for Services and Expenditures
0
3. Amend Sec. 684.620 by revising paragraph (a)(6) to read as follows:
Sec. 684.620 What performance indicators are in place for the Indian
and Native American program?
(a) * * *
(6) The percentage of participants in unsubsidized employment
during the second quarter after exit from the program who were employed
by the same employer in the second and fourth quarters after exit.
* * * * *
PART 686--THE JOB CORPS UNDER TITLE I OF THE WORKFORCE INNOVATION
AND OPPORTUNITY ACT
0
4. The authority citation for part 686 continues to read as follows:
Authority: Secs. 142, 144, 146, 147, 159, 189, 503, Pub. L. 113-
128, 128 Stat. 1425 (Jul. 22, 2014).
Subpart J--Performance
0
5. Amend Sec. 686.1010 by revising paragraph (f) to read as follows:
Sec. 686.1010 What are the primary indicators of performance for Job
Corps centers and the Job Corps program?
* * * * *
(f) The percentage of participants in unsubsidized employment
during the second quarter after exit from the program who were employed
by the same employer in the second and fourth quarters after exit.
PART 688--PROVISIONS GOVERNING THE YOUTHBUILD PROGRAM
0
6. The authority citation for part 688 continues to read as follows:
Authority: Secs. 171, 189, 503, Pub. L. 113-128, 128 Stat. 1425
(Jul. 22, 2014).
[[Page 13614]]
Subpart D--Performance Indicators
0
7. Amend Sec. 688.400 by revising paragraph (f) to read as follows:
Sec. 688.400 What are the performance indicators for YouthBuild
grants?
* * * * *
(f) The percentage of participants in unsubsidized employment
during the second quarter after exit from the program who were employed
by the same employer in the second and fourth quarters after exit; and
* * * * *
Julie A. Su,
Acting Secretary of Labor.
[FR Doc. 2024-03279 Filed 2-22-24; 8:45 am]
BILLING CODE 4510-FN-P
