Title 20—Employees' Benefits--Volume 1
PART 651—GENERAL PROVISIONS GOVERNING THE WAGNER-PEYSER ACT EMPLOYMENT SERVICE
§ 651.10   Definitions of terms used in this part and parts 652, 653, 654, and 658 of this chapter.
In addition to the definitions set forth in sec. 3 of the Workforce Innovation and Opportunity Act (WIOA), codified at 29 U.S.C. 3101 et seq., the following definitions apply to the regulations in parts 652, 653, 654, and 658 of this chapter:
Act means the Wagner-Peyser Act (codified at 29 U.S.C. 49 et seq. ).
Administrator, Office of Workforce Investment (OWI Administrator) means the chief official of the Office of Workforce Investment (OWI) or the Administrator's designee.
Agent means a legal entity or person, such as an association of employers, or an attorney for an association, that is authorized to act on behalf of the employer for purposes of recruitment of workers through the clearance system and is not itself an employer or joint employer, as defined in this section, with respect to a specific job order.
Agricultural employer means any employer as defined in this part who owns or operates a farm, ranch, processing establishment, cannery, gin, packing shed or nursery, or who produces or conditions seed, and who either recruits, solicits, hires, employs, furnishes, or transports any migrant or seasonal farmworker or any agricultural employer as described in 29 U.S.C. 1802(2).
Agricultural worker see Farmworker.
Apparent violation means a suspected violation of employment-related laws or employment service (ES) regulations by an employer, which an ES staff member observes, has reason to believe, or regarding which an ES staff member receives information (other than a complaint as defined in this part).
Applicant holding office means an ES office that is in receipt of a clearance order and has access to U.S. workers who may be willing and available to perform farmwork on less than year-round basis.
Applicant Holding State means a State Workforce Agency that is in receipt of a clearance order from another State and potentially has U.S. workers who may be willing and available to perform farmwork on a less than year-round basis.
Bona fide occupational qualification (BFOQ) means that an employment decision or request based on age, sex, national origin, or religion is based on a finding that such characteristic is necessary to the individual's ability to perform the job in question. Since a BFOQ is an exception to the general prohibition against discrimination on the basis of age, sex, national origin, or religion, it must be interpreted narrowly in accordance with the Equal Employment Opportunity Commission regulations set forth at 29 CFR parts 1604, 1605, 1606, and 1625.
Career services means the services described in sec. 134(c)(2) of WIOA and § 678.430 of this chapter.
Clearance order means a job order that is processed through the clearance system under the Agricultural Recruitment System (ARS) at part 653, subpart F, of this chapter.
Clearance system means the orderly movement of U.S. job seekers as they are referred through the employment placement process by an ES office. This includes joint action of local ES offices in different labor market areas and/or States.
Complainant means the individual, employer, organization, association, or other entity filing a complaint.
Complaint means a representation made or referred to a State or ES office of an alleged violation of the ES regulations and/or other Federal laws enforced by the Department's Wage and Hour Division (WHD) or Occupational Safety and Health Administration (OSHA), as well as other Federal, State, or local agencies enforcing employment-related law.
Complaint System Representative means a trained ES staff individual who is responsible for processing complaints.
Criteria clearance order means a clearance order that is attached to an application for foreign temporary agricultural workers pursuant to part 655, subpart B, of this chapter.
Decertification means the rescission by the Secretary of Labor (Secretary) of the year-end certification made under sec. 7 of the Wagner-Peyser Act to the Secretary of the Treasury that the State agency may receive funds authorized by the Wagner-Peyser Act.
Department means the United States Department of Labor, including its agencies and organizational units.
Discontinuation of services means that an employer, agent, farm labor contractor, joint employer, or successor in interest, as defined in this section, cannot participate in or receive any Wagner-Peyser Act employment service provided by the ES to employers pursuant to parts 652 and 653 of this chapter.
Employer means a person, firm, corporation, or other association or organization which currently has a location within the United States to which U.S. workers may be referred for employment, and which proposes to employ a worker at a place within the United States and which has an employer relationship with respect to employees under this subpart as indicated by the fact that it hires, pays, fires, supervises, and otherwise controls the work of such employees. An association of employers is considered an employer if it has all of the indicia of an employer set forth in this definition. Such an association, however, is considered as a joint employer with the employer member if either shares in exercising one or more of the definitional indicia.
Employment and Training Administration (ETA) means the component of the Department that administers Federal government job training and worker dislocation programs, Federal grants to States for public ES programs, and unemployment insurance benefits. These services are provided primarily through State and local workforce development systems.
Employment-related laws means those laws and implementing rules, regulations, and standards that relate to the employment relationship, such as those enforced by the Department's WHD, OSHA, or by other Federal, State, or local agencies.
Employment Service (ES) office means a site that provides ES services as a one-stop partner program. A site must be colocated in a one-stop center consistent with the requirements of §§ 678.305 through 678.315 of this chapter.
Employment Service (ES) Office Manager means the ES staff person in charge of ES services provided in a one-stop center.
Employment Service (ES) regulations means the Federal regulations at this part and parts 652, 653, 654, 658 of this chapter, and 29 CFR part 75.
Employment Service (ES) staff means individuals who are funded, in whole or in part, by Wagner-Peyser Act funds to carry out activities authorized under the Wagner-Peyser Act.
Establishment means a public or private economic employing unit generally at a single physical location which produces and/or sells goods or services, for example, a mine, factory, store, farm, orchard or ranch. It is usually engaged in one, or predominantly one, type of commercial or governmental activity. Each branch or subsidiary unit of a large employer in a geographical area or community must be considered an individual establishment, except that all such units in the same physical location is considered a single establishment. A component of an establishment which may not be located in the same physical structure (such as the warehouse of a department store) also must be considered as part of the parent establishment. For the purpose of the “seasonal farmworker” definition, farm labor contractors and crew leaders are not considered establishments; it is the organizations to which they supply the workers that are the establishments.
Farm labor contractor means any person or entity, other than an agricultural employer, an agricultural association, or an employee of an agricultural employer or agricultural association, who, for any money or other valuable consideration paid or promised to be paid, recruits, solicits, hires, employs, furnishes, or transports any migrant or seasonal farmworker (MSFW).
Farmwork means the cultivation and tillage of the soil, dairying, the production, cultivation, growing, and harvesting of any agricultural or horticultural commodities. This includes the raising of livestock, bees, fur-bearing animals, or poultry, the farming of fish, and any practices (including any forestry or lumbering operations) performed by a farmer or on a farm as an incident to or in conjunction with such farming operations, including preparation for market, delivery to storage or to market or to carriers for transportation to market. It also includes the handling, planting, drying, packing, packaging, processing, freezing, or grading prior to delivery for storage of any agricultural or horticultural commodity in its unmanufactured state. For the purposes of this definition, agricultural commodities means all commodities produced on a farm including crude gum (oleoresin) from a living tree products processed by the original producer of the crude gum (oleoresin) from which they are derived, including gum spirits of turpentine and gum rosin. Farmwork also means any service or activity covered under § 655.103(c) of this chapter and/or 29 CFR 500.20(e) and any service or activity so identified through official Department guidance such as a Training and Employment Guidance Letter.
Farmworker means an individual employed in farmwork, as defined in this section.
Field checks means unannounced appearances by ES staff and/or other State or Federal staff at agricultural worksites to which ES placements have been made through the intrastate or interstate clearance system to ensure that conditions are as stated on the clearance order and that the employer is not violating an employment-related law.
Field visits means announced appearances by State Monitor Advocates, Regional Monitor Advocates, the National Monitor Advocate (or National Monitor Advocate staff), or outreach staff to the working, living, and gathering areas of migrant and seasonal farmworkers (MSFWs), to perform the duties described at §§ 653.107(b) (outreach staff), 653.108(o) and (q) (State Monitor Advocates), 658.602(n) (National Monitor Advocates and National Monitor Advocate staff), and 658.603(p) (Regional Monitor Advocates). Monitor Advocates or outreach staff must keep records of each such visit.
Governor means the chief executive of a State or an outlying area.
Hearing Officer means a Department Administrative Law Judge, designated to preside at Department administrative hearings.
Individual with a disability means an individual with a disability as defined in sec. 3 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12102).
Interstate clearance order means an agricultural clearance order for temporary employment (employment on a less than year-round basis) describing one or more hard-to-fill job openings, which an ES office uses to request recruitment assistance from other ES offices in a different State.
Intrastate clearance order means an agricultural clearance order for temporary employment (employment on a less than year-round basis) describing one or more hard-to-fill job openings, which an ES office uses to request recruitment assistance from all other ES offices within the State.
Job development means the process of securing a job interview with a public or private employer for a specific participant for whom the ES office has no suitable opening on file.
Job information means information derived from data compiled in the normal course of ES activities from reports, job orders, applications, and the like.
Job opening means a single job opportunity for which the ES office has on file a request to select and refer participants.
Job order means the document containing the material terms and conditions of employment relating to wages, hours, working conditions, worksite and other benefits, submitted by an employer.
Job referral means:
(1) The act of bringing to the attention of an employer a participant or group of participants who are available for specific job openings or for a potential job; and
(2) The record of such referral. “Job referral” means the same as “referral to a job.”
Labor market area means an economically integrated geographic area within which individuals can reside and find employment within a reasonable distance or can readily change employment without changing their place of residence. Such an area must be identified in accordance with criteria used by the Department's Bureau of Labor Statistics in defining such areas or similar criteria established by a Governor.
Joint employer means where two or more employers each have sufficient definitional indicia of being an employer of a worker as defined in this section, they are, at all times, joint employers of that worker. An employer that submits a job order to the ES clearance system as a joint employer, is a joint employer of any worker placed and employed on the job order during the period of employment anticipated, amended, or otherwise extended in accordance with the order.
Local Workforce Development Board or Local WDB means a Local Workforce Development Board established under sec. 107 of WIOA.
Migrant farmworker means a seasonal farmworker (as defined in this section) who travels to the job site so that the farmworker is not reasonably able to return to their permanent residence within the same day.
MSFW means a migrant farmworker or a seasonal farmworker.
Non-criteria clearance order means a clearance order that is not attached to an application for foreign temporary agricultural workers pursuant to part 655, subpart B, of this chapter.
Occupational Information Network (O*NET) means the online reference database which contains detailed descriptions of U.S. occupations, distinguishing characteristics, classification codes, and information on tasks, knowledge, skills, abilities, and work activities as well as information on interests, work styles, and work values.
One-stop center means a physical center within the one-stop delivery system, as described in sec. 121(e)(2)(A) of WIOA.
One-stop delivery system means a one-stop delivery system described in sec. 121(e) of WIOA.
One-stop partner means an entity described in sec. 121(b) of WIOA and § 678.400 of this chapter that is participating in the operation of a one-stop delivery system.
O*NET-SOC means the occupational codes and titles used in the O*NET system, based on and grounded in the Standard Occupational Classification (SOC), which are the titles and codes utilized by Federal statistical agencies to classify workers into occupational categories for the purpose of collecting, calculating, and disseminating data. The SOC system is issued by the Office of Management and Budget and the Department is authorized to develop additional detailed O*NET occupations within existing SOC categories. The Department uses O*NET-SOC titles and codes for the purposes of collecting descriptive occupational information and for State reporting of data on training, credential attainment, and placement in employment by occupation.
Onsite review means an appearance by the State Monitor Advocate and/or Federal staff at an ES office to monitor the delivery of services and protections afforded by ES regulations to MSFWs by the State Workforce Agency and local ES offices.
Order holding office means an ES office that has accepted a clearance order from an employer seeking U.S. workers to perform farmwork on a less than year-round basis through the Agricultural Recruitment System.
Outreach contact means each MSFW that receives the presentation of information, offering of assistance, or follow-up activity from outreach staff.
Outreach staff means ES staff with the responsibilities described in § 653.107(b) of this chapter. State Monitor Advocates are not considered outreach staff.
Participant means a reportable individual who has received services other than the services described in § 677.150(a)(3) of this chapter, after satisfying all applicable programmatic requirements for the provision of services, such as eligibility determination. ( See § 677.150(a) of this chapter.)
(1) The following individuals are not participants, subject to § 677.150(a)(3)(ii) and (iii) of this chapter:
(i) Individuals who only use the self-service system; and
(ii) Individuals who receive information-only services or activities.
(2) ES participants must be included in the program's performance calculations.
Placement means the hiring by a public or private employer of an individual referred by the ES office for a job or an interview, provided that the ES office completed all the following steps:
(1) Prepared a job order form prior to referral, except in the case of a job development contact on behalf of a specific participant;
(2) Made prior arrangements with the employer for the referral of an individual or individuals;
(3) Referred an individual who had not been specifically designated by the employer, except for referrals on agricultural job orders for a specific crew leader or worker;
(4) Verified from a reliable source, preferably the employer, that the individual had entered on a job; and
(5) Appropriately recorded the placement.
Public housing means housing operated by or on behalf of any public agency.
Regional Administrator (RA) means the chief Department of Labor Employment and Training Administration (ETA) official in each Department regional office.
Reportable individual means an individual who has taken action that demonstrates an intent to use ES services and who meets specific reporting criteria of the Wagner-Peyser Act ( see § 677.150(b) of this chapter), including:
(1) Individuals who provide identifying information;
(2) Individuals who only use the self-service system; or
(3) Individuals who only receive information-only services or activities.
Respondent means the individual or entity alleged to have committed the violation described in the complaint, such as the employer, service provider, or State agency.
Seasonal farmworker means an individual who is employed, or was employed in the past 12 months, in farmwork (as defined in this section) of a seasonal or other temporary nature and is not required to be absent overnight from their permanent place of residence. Labor is performed on a seasonal basis where, ordinarily, the employment pertains to or is of the kind exclusively performed at certain seasons or periods of the year and which, from its nature, may not be continuous or carried on throughout the year. Workers who move from one seasonal activity to another, while employed in farmwork, are employed on a seasonal basis even though they may continue to be employed during a major portion of the year. Workers are employed on a temporary basis where they are employed for a limited time only or their performance is contemplated for a particular piece of work, usually of short duration. Generally, employment which is contemplated to continue indefinitely is not temporary.
Secretary means the Secretary of the U.S. Department of Labor or the Secretary's designee.
Significant MSFW States are those States designated by the Department and must include the 20 States with the highest estimated number of MSFWs.
Significant MSFW one-stop centers are those designated by the Department and include those ES offices where MSFWs account for 10 percent or more of annual participants or reportable individuals in ES and those local ES offices that the OWI Administrator determines must be included due to special circumstances such as an estimated large number of MSFWs in the service area. In no event may the number of significant MSFW one-stop centers be less than 100 centers on a nationwide basis.
Solicitor means the chief legal officer of the U.S. Department of Labor or the Solicitor's designee.
Standard Metropolitan Statistical Area (SMSA) means a metropolitan area designated by the Bureau of Census which contains:
(1) At least 1city of 50,000 inhabitants or more; or
(2) Twin cities with a combined population of at least 50,000.
State means any of the 50 States, the District of Columbia, Guam, Puerto Rico, and the Virgin Islands.
State Administrator means the chief official of the SWA.
State agency or State Workforce Agency (SWA) means the State ES agency designated under sec. 4 of the Wagner-Peyser Act.
State hearing official means a State official designated to preside at State administrative hearings convened to resolve complaints involving ES regulations pursuant to subpart E of part 658 of this chapter.
State Workforce Agency (SWA) official means an individual employed by the State Workforce Agency or any of its subdivisions.
State Workforce Development Board or State WDB means the entity within a State appointed by the Governor under sec. 101 of WIOA.
Successor in interest —The following factors, including those as used under Title VII of the Civil Rights Act and the Vietnam Era Veterans' Readjustment Assistance Act, may be considered in determining whether an employer, agent, or farm labor contractor is a successor in interest; however, these factors are not exhaustive, and no one factor is dispositive, but all of the circumstances will be considered as a whole:
(1) Substantial continuity of the same business operations;
(2) Use of the same facilities;
(3) Continuity of the work force;
(4) Similarity of jobs and working conditions;
(5) Similarity of supervisory personnel;
(6) Whether the former management or owner retains a direct or indirect interest in the new enterprise;
(7) Similarity in machinery, equipment, and production methods;
(8) Similarity of products and services;
(9) The ability of the predecessor to provide relief; and
(10) For purposes of discontinuation of services, the involvement of the firm's ownership, management, supervisors, and others associated with the firm in the violation(s) at issue.
Supply State(s) means a State that potentially has U.S. workers who may be recruited for referral through the Agricultural Recruitment System to the area of intended employment in a different State.
Supportive services means services that are necessary to enable an individual to participate in activities authorized under WIOA or the Wagner-Peyser Act. These services may include, but are not limited to, the following:
(1) Linkages to community services;
(2) Assistance with transportation;
(3) Assistance with child care and dependent care;
(4) Assistance with housing;
(5) Needs-related payments;
(6) Assistance with educational testing;
(7) Reasonable accommodations for individuals with disabilities;
(8) Referrals to health care;
(9) Assistance with uniforms or other appropriate work attire and work-related tools, including such items as eyeglasses and protective eye gear;
(10) Assistance with books, fees, school supplies, and other necessary items for students enrolled in postsecondary education classes; and
(11) Payments and fees for employment and training-related applications, tests, and certifications.
Tests means a standardized method of measuring an individual's possession of, interest in, or ability to acquire, job skills and knowledge. Use of tests by one-stop staff must be in accordance with the provisions of:
(1) Title 41 CFR part 60-3, Uniform Guidelines on Employee Selection Procedures;
(2) Title 29 CFR part 1627, Records To Be Made or Kept Relating to Age; Notices To Be Posted; Administrative Exemptions; and
(3) The Department of Labor's regulations on Nondiscrimination on the Basis of Handicap in Programs and Activities Receiving or Benefiting from Federal Financial Assistance, which have been published as 29 CFR part 32.
Training services means services described in sec. 134(c)(3) of WIOA.
Unemployment insurance claimant means a person who files a claim for benefits under any State or Federal unemployment compensation law.
Veteran means a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable, as defined under 38 U.S.C. 101 and sec. 3(63)(A) of WIOA.
Wagner-Peyser Act Employment Service (ES) also known as Employment Service (ES) means the national system of public ES offices described under the Wagner-Peyser Act. ES services are delivered through a nationwide system of one-stop centers, managed by SWAs and the various local offices of the SWAs, and funded by the United States Department of Labor.
Week means 7 consecutive calendar days.
WIOA means the Workforce Innovation and Opportunity Act (codified at 29 U.S.C. 3101 et seq. ).
Workforce and Labor Market Information (WLMI) means the body of knowledge that describes the relationship between labor demand and supply. This includes identification and analysis of the socio-economic factors that influence employment, training, and business decisions, such as worker preparation, educational program offerings and related policy decisions within national, State, Substate, and local labor market areas. WLMI includes, but is not limited to:
(1) Employment numbers by occupation and industry;
(2) Unemployment numbers and rates;
(3) Short- and long-term industry and occupational employment projections;
(4) Information on business employment dynamics, including the number and nature of business establishments, and share and location of industrial production;
(5) Local employment dynamics, including business turnover rates; new hires, job separations, net job losses;
(6) Job vacancy counts;
(7) Job seeker and job posting data from the public labor exchange system;
(8) Identification of high growth and high demand industries, occupations, and jobs;
(9) Information on employment and earnings for wage and salary workers and for the self-employed;
(10) Information on work hours, benefits, unionization, trade disputes, conditions of employment, and retirement;
(11) Information on occupation-specific requirements regarding education, training, skills, knowledge, and experience;
WLMI also may include, as either source data or as outputs of analysis of source data:
(12) Population and workforce growth and decline, classified by age, sex, race, and other demographic characteristics;
(13) Identification of emerging occupations and evolving skill demands;
(14) Business skill and hiring requirements;
(15) Workforce characteristics, which may include skills, experience, education, credential attainment, competencies, etc.;
(16) Workforce available in geographic areas;
(17) Information on regional and local economic development activity, including job creation through business start-ups and expansions;
(18) Enrollments in and completers from educational programs, training and registered apprenticeship;
(19) Trends in industrial and occupational restructuring;
(20) Shifts in consumer demands;
(21) Data contained in governmental or administrative reporting including wage records as identified in § 652.301 of this chapter;
(22) Labor market intelligence gained from interaction with businesses, industry or trade associations, education agencies, government entities, and the public; and
(23) Other economic factors.
Workforce and Labor Market Information System (WLMIS) means the system that collects, analyzes, interprets, and disseminates workforce characteristics and employment-related data, statistics, and information at national, State, and local labor market areas and makes that information available to the public, workforce development system, one-stop partner programs, and the education and economic development communities.
Workforce development activity means an activity carried out through a workforce development program as defined in sec. 3 of WIOA.
Working days or business days means those days that the order-holding ES office is open for public business, for purposes of the Agricultural Recruitment System.
Work test means activities designed to ensure that an individual whom a State determines to be eligible for unemployment insurance benefits is able to work, available for work, and actively seeking work in accordance with the State's unemployment compensation law.