13814 Federal Register / Vol. 89, No. 37 / Friday, February 23, 2024 / Rules and Regulations 

1Public Law 113–128, 128 Stat. 1425 (2014). 

2Workforce Innovation and Opportunity Act; 

Joint Rule for Unified and Combined State Plans, 

Performance Accountability, and the One-Stop 

System Joint Provisions; Final Rule, 81 FR 55792, 

55845 (Aug. 19, 2016) (hereinafter ‘‘Joint WIOA 

Final Rule’’). 

3Workforce Innovation and Opportunity Act 

Effectiveness in Serving Employers Performance 

Indicator; Joint Proposed Rule, 87 FR 56318 (Sept. 

DEPARTMENT OF LABOR 

Employment and Training 

Administration 

20 CFR Part 677 

[Docket No. ETA–2022–0006] 

RIN 1205–AC01 

DEPARTMENT OF EDUCATION 

34 CFR Parts 361 and 463 

RIN 1830–AA32 

Workforce Innovation and Opportunity 

Act Effectiveness in Serving 

Employers Performance Indicator 

AGENCY: Office of Career, Technical, and 

Adult Education (OCTAE), 

Rehabilitation Services Administration 

(RSA), Department of Education; 

Employment and Training 

Administration (ETA), Department of 

Labor. 

ACTION: Joint final rule. 

SUMMARY: The Workforce Innovation 

and Opportunity Act (WIOA) 

establishes six primary indicators of 

performance and defines five of those 

performance indicators. With this final 

rule, the U.S. Departments of Labor and 

Education (Departments) define the 

sixth performance indicator— 

effectiveness in serving employers—as 

Retention with the Same Employer and 

require it be reported by one WIOA core 

program on behalf of all six WIOA core 

programs within each State. This final 

rule incorporates two changes from the 

notice of proposed rulemaking (NPRM): 

the final rule does not limit the type of 

wage information that must be used, 

thereby permitting 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: 

U.S. Department of Labor: 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 20210–0001, 

Telephone: (202) 693–3700 (voice) (this 

is not a toll-free number) or 1–877–872– 

5627. 

U.S. Department of Education: Hugh 

Reid, Policy, Planning, and Research, 

U.S. Department of Education, Office of 

Career, Technical, and Adult Education, 

400 Maryland Avenue SW, LBJ–4A172, 

Washington, DC 20202–2800, 

Telephone: (202) 245–7491; or Jessica 

Hawes, WIOA Team Coordinator, U.S. 

Department of Education, Office of 

Special Education and Rehabilitative 

Services, Rehabilitation Services 

Administration, 400 Maryland Avenue 

SW, Washington, DC 20202–2800, 

Telephone: (202) 245–6486. 

For persons with a hearing or speech 

disability who need assistance to use 

the telephone system, please dial 711 to 

access telecommunications relay 

services. 

SUPPLEMENTARY INFORMATION: 

Preamble Table of Contents 

I. Background 

A. Rulemaking Authority and Effectiveness 

in Serving Employers Performance 

Indicator for WIOA Core Programs 

B. Public Comments Received on Proposed 

Rulemaking 

C. Summary of Changes From NPRM to 

Final Rule of the Effectiveness in Serving 

Employers Performance Indicator for 

WIOA Core Programs and Local Level 

Implementation for DOL-Administered 

Core Programs 

II. Section-by-Section Analysis of This Final 

Rule 

A. Departments’ Rationale for Retention 

With the Same Employer as the 

Definition of the Effectiveness in Serving 

Employers Performance Indicator 

B. Retention With the Same Employer for 

the Effectiveness in Serving Employers 

Performance Indicator in § 677.155 

C. Adjusted Levels of Performance for 

WIOA Core Programs—Changes to 

§ 677.190 

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 Enforcement Fairness Act of 

1996 

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 of 1995 

D. Executive Order 13132 (Federalism) 

E. Unfunded Mandates Reform Act of 1995 

F. Executive Order 13175 (Indian Tribal 

Governments) 

Acronyms and Abbreviations 

AEFLA Adult Education and Family 

Literacy Act 

AJC American Job Center 

BLS Bureau of Labor Statistics 

CFR Code of Federal Regulations 

COVID–19 Coronavirus disease 2019 

Departments U.S. Departments of Labor and 

Education 

DOL U.S. Department of Labor 

ED U.S. Department of Education 

E.O. Executive Order 

ETA Employment and Training 

Administration 

FEIN Federal Employer Identification 

Number 

FR Federal Register 

GS General Schedule 

ICR Information Collection Request 

INA Indian and Native American 

NAICS North American Industry 

Classification System 

NPRM or proposed rule notice of proposed 

rulemaking 

OCTAE Office of Career, Technical, and 

Adult Education 

OEWS Occupational Employment and 

Wage Statistics 

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 

PY Program Year 

QCEW Quarterly Census of Employment 

and Wages 

RFA Regulatory Flexibility Act 

RIA Regulatory Impact Analysis 

RIN Regulation Identifier Number 

RSA Rehabilitation Services Administration 

SBA U.S. Small Business Administration 

SLDS Statewide Longitudinal Data System 

Stat. United States Statutes at Large 

SWIS State Wage Interchange System 

TAC Technical Assistance Circular 

TEGL Training and Employment Guidance 

Letter 

UI Unemployment Insurance 

UMRA Unfunded Mandates Reform Act 

U.S.C. United States Code 

VR Vocational Rehabilitation 

WDB Workforce Development Board 

WIOA Workforce Innovation and 

Opportunity Act 

I. Background 

In the final rule implementing 

WIOA,1 the Departments indicated that 

they would initially implement the 

sixth indicator of performance— 

effectiveness in serving employers—in 

the form of a pilot program to test the 

feasibility and rigor of three proposed 

approaches.2 The Departments assessed 

the pilot outcomes through Program 

Year (PY) 2021, and on September 14, 

2022, published a NPRM to define in a 

single standardized way the 

effectiveness in serving employers 

performance indicator for the 

regulations implementing the jointly 

administered requirements governing 

WIOA’s six core programs (87 FR 

56318).3


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14, 2022) (hereinafter ‘‘Joint WIOA Effectiveness in 

Serving Employers NPRM’’). 

4WIOA sec. 116(b)(2)(A) states the primary 

indicators of performance: (1) the percentage of 

participants who are employed during the second 

quarter after exit from the program; (2) the 

percentage of participants who are employed during 

the fourth quarter after exit from the program; (3) 

the median earnings of participants who are 

employed during the second quarter after exit from 

the program; (4) the percentage of participants who 

obtain a recognized postsecondary credential 

during the program or within 1 year of exit from 

the program; (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 other five performance 

indicators were included in the Joint WIOA Final 

Rule (see 20 CFR 677.155, 34 CFR 361.155, 34 CFR 

463.155). 

5WIOA sec. 116(d)(2)(A) requires States to 

include in their performance report information 

specifying levels of performance achieved with 

respect to the primary indicators of performance 

referenced in footnote 4 supra and the State 

adjusted levels of performance for such indicators 

for each program. 

6WIOA sec. 116(b)(3)(A) establishes the 

procedures at the State, local, and Federal levels to 

assess levels of performance by each program, and 

the State as a whole, for each performance 

indicator. 

7Workforce Innovation and Opportunity Act; 

Joint Rule for Unified and Combined State Plans, 

Performance Accountability, and the One-Stop 

System Joint Provisions; Notice of Proposed 

Rulemaking, 80 FR 20574 (Apr. 16, 2015) 

(hereinafter ‘‘Joint WIOA NPRM’’). 

8Throughout this final rule, the Departments use 

the term ‘‘State’’ to mean those geographical areas 

covered by the definitions of ‘‘State’’ and ‘‘outlying 

area,’’ in WIOA secs. 3(56) and 3(45), respectively. 

Therefore, for purposes of this final rule, ‘‘State’’ 

includes the 50 States, the District of Columbia, 

Puerto Rico, the U.S. Virgin Islands, Guam, the 

Commonwealth of the Northern Mariana Islands, 

American Samoa, and for certain programs, the 

Republic of Palau. 

9 Governors had the option to establish and report 

on a third State-specific approach for measuring 

effectiveness in serving employers, in addition to 

two of the three Departmental pilot approaches 

selected by the State. 

A. Rulemaking Authority and 

Effectiveness in Serving Employers 

Performance Indicator for WIOA Core 

Programs 

On July 22, 2014, President Barack 

Obama signed into law WIOA, which 

superseded titles I and II of the 

Workforce Investment Act of 1998 and 

amended the Wagner-Peyser Act and the 

Rehabilitation Act of 1973 

(Rehabilitation Act). In WIOA sec. 

503(f), Congress directed the 

Departments 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. The Secretaries 

of Labor and Education are also 

authorized to promulgate regulations 

governing the WIOA-authorized 

programs, the Wagner-Peyser Act 

programs, and the Vocational 

Rehabilitation (VR) program. 

Specifically, WIOA sec. 189(a) permits 

the Secretary of Labor to prescribe rules 

and regulations to carry out title I of 

WIOA. Similarly, section 12 of the 

Wagner-Peyser Act permits the 

Secretary of Labor to promulgate rules 

to administer the Wagner-Peyser Act 

programs. Section 410 of the General 

Education Provisions Act authorizes the 

Secretary of Education to promulgate 

regulations governing the programs the 

U.S. Department of Education (ED) 

administers, including title II of 

WIOA—the Adult Education and 

Family Literacy Act (AEFLA)—and the 

VR program. Section 414 of the 

Department of Education Organization 

Act also authorizes the Secretary of 

Education to prescribe rules and 

regulations necessary or appropriate to 

administer and manage the function of 

ED. 

WIOA sec. 116 establishes the 

performance indicators 4 and 

performance reporting 5 requirements to 

assess 6 the six WIOA core programs’ 

effectiveness in serving WIOA 

customers (i.e., participants, other job 

seekers, and employers). The core 

programs are the adult, dislocated 

worker, and youth programs under title 

I of WIOA; the AEFLA program under 

title II of WIOA; programs 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. 

In the 2016 Joint WIOA Final Rule, 

the Departments initiated a phased 

approach to defining the effectiveness in 

serving employers performance 

indicator. Currently, 20 CFR 

677.155(a)(1)(vi) and 34 CFR 

361.155(a)(1)(vi) and 463.155(a)(1)(vi) 

implement the effectiveness in serving 

employers performance indicator as 

described in WIOA sec. 

116(b)(2)(A)(i)(VI), subject to WIOA sec. 

116(b)(2)(A)(iv), which requires the 

Secretaries of Labor and Education to 

jointly develop and establish the 

performance indicator, after 

consultation with representatives of 

State and local governments, business 

and industry, and other interested 

parties. To that end, in developing the 

Joint WIOA Final Rule, the Departments 

consulted with stakeholders and 

considered public comments on three 

proposed approaches to defining the 

performance indicator, and in the Joint 

WIOA Final Rule, the Departments 

stated they would work to implement a 

pilot program, the details of which 

would be further delineated in joint 

Departmental guidance (81 FR 55792, 

55846). 

The pilot tested all three approaches 

described by the Departments in the 

Joint WIOA NPRM 7 and Joint WIOA 

Final Rule, with the intent of assessing 

each approach for its efficacy in 

measuring effectiveness in serving 

employers. The piloted approaches were 

Retention with the Same Employer, 

Repeat Business Customer, and 

Employer Penetration, which are further 

discussed in Section II.A below. The 

Departments included these approaches 

in the WIOA Joint Performance 

Information Collection Request (ICR) 

(Office of Management and Budget 

(OMB) Control Number 1205–0526) and 

required each State 8 to report on any 

two of the three approaches set out in 

the Joint WIOA Final Rule, as well as 

any additional measure a State 

established related to services to 

employers.9 On behalf of the 

Departments, the Department of Labor 

(DOL) commissioned an examination of 

State experiences with the various 

approaches through a third-party 

contractor, and the Departments used 

the results of that study to help inform 

their analysis of which definition of the 

effectiveness in serving employers 

performance indicator to propose in the 

Joint WIOA Effectiveness in Serving 

Employers NPRM. 

B. Public Comments Received on 

Proposed Rulemaking 

Because of the narrow scope of the 

regulation, the Departments encouraged 

commenters to submit only comments 

regarding the definition of the 

effectiveness in serving employers 

performance indicator and the 

indicator’s use in determining whether 

sanctions are necessary for failure to 

achieve adjusted levels of performance 

as set forth herein. The proposed 

amendments in the Joint WIOA 

Effectiveness in Serving Employers 

NPRM were on a limited number of 

provisions in the performance 

accountability regulations at 20 CFR 

part 677 and 34 CFR parts 361 and 463. 

Therefore, the Departments determined 

comments received on other provisions 

and aspects of the WIOA regulations 

that were not covered in this final rule, 

whether promulgated jointly by the 

Departments or independently by each 

agency, to be outside the scope of this 

rulemaking and, thus, did not consider 

those comments when developing this 

final rule. 


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10Pursuant to WIOA sec. 116(c)(1)(A)(i), the 

requirement to implement the primary indicators of 

performance at the local level do not apply to the 

other core programs, specifically the AEFLA, 

Wagner-Peyser Act, and VR programs. 

The Joint WIOA Effectiveness in 

Serving Employers NPRM invited 

written comments from the public 

concerning this rulemaking through 

November 14, 2022. No commenters 

requested an extension of the comment 

period. The comments received may be 

viewed by entering docket number 

ETA–2022–0006 at https://

www.regulations.gov. 

The Departments received 47 

comments in the docket for this 

rulemaking, and the docket for the 

Workforce Innovation and Opportunity 

Act Title I Non-Core Programs 

Effectiveness in Serving Employers 

Performance Indicator NPRM (ETA– 

2022–0005, RIN 1205–AC08) published 

concurrently with the Joint WIOA 

Effectiveness in Serving Employers 

NPRM received 11 comments related to 

the Joint WIOA Effectiveness in Serving 

Employers NPRM. Of those 58 

comments, 43 were unique; 14 were 

form letter copies, and 1 was not 

germane. Public sector commenters 

included State and local government 

agencies, State and local workforce 

development boards, and one-stop 

operators. Nonprofit sector commenters 

included advocacy groups, professional 

associations, and training providers. Of 

the unique comments, about one-third 

came from State workforce agencies and 

State VR agencies. The Departments also 

received comments from private 

citizens. 

This section of the final rule provides 

a general overview of the comments 

received. Section II (Section-by-Section 

Analysis of this Final Rule), which 

follows this section, describes the 

comments in more detail and provides 

the Departments’ responses to them. 

A commenter expressed general 

support for the proposed rule because, 

in their view, it would benefit the 

workforce and promote cost savings for 

employers in the long term. Many 

commenters addressed the pilot 

program in a myriad of ways, including 

discussing the advantages and 

disadvantages of the piloted approaches 

for measuring effectiveness in serving 

employers, making alternative 

recommendations, requesting 

flexibilities, and seeking an extension of 

certain aspects of the pilot. 

The Departments’ proposal to use 

Retention with the Same Employer as 

the indicator for measuring effectiveness 

in serving employers received mixed 

reviews, with a few agreeing that it is 

the preferred approach while others 

expressed concerns that it would not 

measure the right things. 

A few commenters asked the 

Departments for clarification about how 

the proposed indicator will be 

calculated and implemented, with some 

describing potential issues in data 

collection or recommending different 

approaches to calculating the indicator. 

Other commenters recommended that 

the Departments allow the use of 

supplemental wage information in the 

definition of effectiveness in serving 

employers. Responding to a request for 

comment in the proposed rule, some 

commenters offered recommendations 

about ways the Departments could 

mitigate potential unintended 

consequences and downsides of the 

Retention with the Same Employer 

measure. 

Several commenters provided 

feedback on the Departments’ proposal 

that the overall State indicator score for 

effectiveness in serving employers be a 

shared outcome reported by one core 

program on behalf of all six core 

programs in the State, with some 

opposing that approach and others 

supporting it. A few commenters 

focused on concerns about the 

administration and implementation of a 

shared outcome, requesting clarification 

about local level implementation of the 

effectiveness in serving employers 

performance indicator, and provided 

recommendations to the Departments 

with regard to certain aspects of 

implementation. A few commenters 

provided input on the administrative 

burden proposed in the Regulatory 

Impact Analysis (RIA) of the Joint WIOA 

Effectiveness in Serving Employers 

NPRM. 

Additionally, a few commenters 

provided feedback on topics not within 

the scope of the rulemaking, including 

earnings data collected by workforce 

development boards and types of 

measurable skill gains under WIOA. The 

Departments appreciate the 

thoughtfulness of these comments and 

will address those germane to this final 

rule in the section-by-section analysis 

below. However, as explained in the 

Joint WIOA Effectiveness in Serving 

Employers NPRM and above, the scope 

of this rulemaking is limited to 

amendments to the definition of the 

effectiveness in serving employers 

performance indicator and the 

indicator’s use in determining whether 

sanctions are necessary for failure to 

achieve adjusted levels of performance 

as set forth in the proposed rule. 

Because these comments pertain to 

other provisions and aspects of the 

WIOA regulations, they are considered 

outside the scope of this rulemaking and 

are not addressed in the section-bysection analysis below. 

C. Summary of Changes From NPRM to 

Final Rule of the Effectiveness in 

Serving Employers Performance 

Indicator for WIOA Core Programs and 

Local Level Implementation for DOLAdministered Core Programs 

The final rule implements Retention 

with the Same Employer as the 

definition for the effectiveness in 

serving employers indicator, as 

proposed in the NPRM, with two 

changes. First, this final rule removes 

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 as States are permitted to 

collect and report for purposes of the 

three employment performance 

indicators defined by WIOA sec. 116. 

Second, the final rule definition for 

effectiveness in serving employers now 

uses the term ‘‘unsubsidized 

employment’’ to better align with WIOA 

statutory language used in WIOA sec. 

116 with respect to other performance 

indicators, 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. 

Regarding commenters’ concerns and 

requests for clarification about local 

level implementation, as detailed below, 

the Departments have determined that 

WIOA sec. 116(c)(1)(A)(i) requires that 

all of the primary indicators of 

performance, including the effectiveness 

in serving employers performance 

indicator, must be applied at the local 

level for the WIOA title I programs 

(Adult, Dislocated Worker, and 

Youth).10 Therefore, States must apply 

the effectiveness in serving employers 

performance indicator at the local level. 

The Departments believe this indicator 

should be assessed at each level for the 

WIOA title I programs in the same 

manner as the other primary indicators 

of performance are assessed. 

II. Section-by-Section Analysis of This 

Final Rule 

In the discussion of the regulatory text 

changes below, the heading references 

the DOL CFR part and section number. 

However, ED has identical provisions at 

34 CFR part 361, subpart E (under its 

State VR program regulations) and at 34 

CFR part 463, subpart I (under its 

AEFLA regulations). For purposes of 


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11The indicator is reported on an annual basis; 

therefore, the reporting period is the program year 

from July 1 through June 30. 

12ETA, ‘‘Workforce Performance Results,’’ 

https://www.dol.gov/agencies/eta/performance/ 

results (last visited Oct. 23, 2021); ETA, ‘‘PY 2020 

WIOA National Performance Summary,’’ Feb. 28, 

2022, https://www.dol.gov/sites/dolgov/files/ETA/ 

Performance/pdfs/PY%202020%20WIOA%

20National%20Performance%20Summary.pdf (last 

visited July 31, 2023). PY 2020 data were the most 

current information available at the time of the Joint 

WIOA Effectiveness in Serving Employers NPRM in 

September 2022 and, thus, were included in the 

Departments’ rationale for the Joint WIOA 

Effectiveness in Serving Employers NPRM. At the 

time of the development of this final rule, PY 2021 

data are available and are discussed below. The PY 

2021 data support the Departments’ rationale in this 

final rulemaking. ETA, ‘‘PY 2021 WIOA National 

Performance Summary,’’ Feb. 28, 2022, https://

www.dol.gov/sites/dolgov/files/ETA/Performance/ 

pdfs/PY%202021%20WIOA%20

National%20Performance%20Summary.pdf (last 

visited July 31, 2023). 

13The Departments issued joint guidance on 

December 19, 2016, ‘‘Performance Accountability 

Guidance for Workforce Innovation and 

Opportunity Act (WIOA) Title I, Title II, Title III, 

and Title IV Core Programs’’ (Training and 

Employment Guidance Letter [TEGL] No. 10–16, 

OCTAE Program Memorandum 17–2, and RSA 

Technical Assistance Circular [TAC] 17–01), that 

described the pilot indicators for effectiveness in 

serving employers. The Departments updated this 

joint guidance in August 2017, with the issuance of 

a change to the guidance, and required States to 

submit the first report of annual results using data 

collected during PY 2017 (July 1, 2017–June 30, 

2018), meaning that States did not report any data 

for the pilot study for purposes of PY 2016. 

However, due to the lag in Quarterly Census of 

Employment and Wages (QCEW) data availability 

for the Retention with the Same Employer and 

Repeat Business Customer approaches, the initial 

results for the effectiveness in serving employers 

performance indicator pilot were not available for 

reporting in the WIOA annual report due October 

16, 2017. As a result, States reported their initial 

data in PY 2017. ETA, TEGL No. 10–16, Change 1, 

‘‘Performance Accountability Guidance for 

Workforce Innovation and Opportunity Act (WIOA) 

Title I, Title II, Title III, and Title IV Core 

Programs,’’ Aug. 23, 2017, page 26, https://

wdr.doleta.gov/directives/corr_

doc.cfm?DOCN=3255; ED, OCTAE Program 

Memorandum 17–2, ‘‘Performance Accountability 

Guidance for Workforce Innovation and 

Opportunity Act (WIOA) Title I, Title II, Title III, 

and Title IV Core Programs,’’ Aug. 23, 2017, page 

23, https://www2.ed.gov/about/offices/list/ovae/pi/ 

AdultEd/octae-program-memo-17-2.pdf; ED, RSA– 

TAC–17–01, ‘‘Performance Accountability 

Guidance for Workforce Innovation and 

Opportunity Act (WIOA) Title I, Title II, Title III, 

and Title IV Core Programs,’’ Aug. 17, 2017, page 

23, https://rsa.ed.gov/sites/default/files/ 

subregulatory/tac-17-01.pdf. 

14The pilot study began in PY 2016 and lasted 

through PY 2021. However, States must continue to 

report on the piloted measures for the effectiveness 

in serving employers performance indicator until 

these final regulations take effect. 

15The most current public workforce system 

performance accountability data can be found on 

ETA’s website. ETA, ‘‘Workforce Performance 

Results,’’ https://www.dol.gov/agencies/eta/ 

performance/results (last visited Oct. 13, 2023). See 

ETA, ‘‘PY 2021 WIOA National Performance 

Summary,’’ Dec. 22, 2022, page 9, https://

www.dol.gov/sites/dolgov/files/ETA/Performance/ 

pdfs/PY%202021%20WIOA%20

National%20Performance%20Summary.pdf. 

brevity, the discussion of regulatory text 

changes below appears only once—in 

conjunction with the DOL section 

number—but is applicable to all three 

regulatory sections and constitutes the 

Departments’ collective explanation of 

the final rule. These changes to the joint 

performance regulations will appear in 

each of the CFR parts identified in this 

paragraph when the regulations are 

published in the CFR. 

Section II of the final rule provides 

the Departments’ responses to 

comments and explains the two changes 

in the language of the final rule from the 

proposed rulemaking. Section II.A 

provides greater background detail on 

the pilot for effectiveness in serving 

employers, comments regarding the 

pilot, commenters’ suggestions for other 

approaches to measuring effectiveness 

in serving employers that were not part 

of the pilot, and the Departments’ 

rationale for choosing Retention with 

the Same Employer as the definition of 

the effectiveness in serving employer 

performance indicator. Section II.B 

discusses comments received on the 

proposal to modify § 677.155 to adopt 

Retention with the Same Employer as 

the definition for the effectiveness in 

serving employers performance 

indicator and explains the Departments’ 

decision to finalize the measure with 

two changes from the NPRM, as 

suggested by multiple commenters. 

Section II.C discusses comments on 

proposed modifications to § 677.190 

where the effectiveness in serving 

employers performance indicator is 

incorporated into adjusted levels of 

performance. 

A. Departments’ Rationale for Retention 

With the Same Employer as the 

Definition of the Effectiveness in Serving 

Employers Performance Indicator 

This section provides background 

detail on the pilot for effectiveness in 

serving employers, comments regarding 

the pilot, commenters’ suggestions for 

other approaches to measuring 

effectiveness in serving employers that 

were not part of the pilot, and the 

Departments’ rationale for choosing 

Retention with the Same Employer as 

the definition of the effectiveness in 

serving employer performance 

indicator. 

In developing the Joint WIOA 

Effectiveness in Serving Employers 

NPRM, the Departments reviewed 

annual report data 11 for Program Year 

(PY) 2017 through PY 2020 12 for each 

of the three approaches for measuring 

effectiveness in serving employers 

piloted as described in the 2016 Joint 

WIOA Final Rule, with a focus on using 

information that would provide an 

accurate picture of how well the public 

workforce system serves employers 

while minimizing employer burden. 

Specifically, States, under guidance 

from the Departments (hereinafter ‘‘joint 

guidance’’), piloted the following 

definitions for the effectiveness in 

serving employers performance 

indicator: 13

• Retention with the Same Employer: 

Percentage of participants with wage 

records who exit from WIOA core 

programs and were employed by the 

same employer in the second and fourth 

quarters after exit. 

• Repeat Business Customer: 

Percentage of employers who have used 

WIOA core program services more than 

once during the last three reporting 

periods. 

• Employer Penetration: Percentage of 

employers using WIOA core program 

services out of all employers in the 

State. 

During the pilot,14 the Departments 

determined that the effectiveness in 

serving employers performance 

indicator should be a shared outcome 

across all six core programs within each 

State (i.e., meaning that one program 

would report on behalf of all six core 

programs in the State), rather than 

reported separately by each of the six 

core programs. 

For PY 2021—the most recent data 

available at the time the Departments 

made their decisions for this final 

rulemaking—the piloted approaches for 

the effectiveness in serving employers 

performance indicator provided the 

following performance results: 15

• Retention with the Same Employer 

PY 2021 Rate: 56 percent (35 States 

reported effectiveness in serving 

employers performance using this 

definition); 

• Repeat Business Customer PY 2021 

Rate: 35 percent (47 States reported 

using this definition); and 


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16See Shayne Spaulding, Burt Barnow, Amanda 

Briggs, John Trutko, Alex Trutko, and Ian Hecker, 

‘‘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%20

in%20Serving%20Employers_Final%20Report.pdf 

(hereinafter ‘‘Final Pilot Study Report’’). 

17One State reported a State-specific approach to 

measuring effectiveness in serving employers, 

which the State called ‘‘Active Job Orders with 

Referrals.’’ This measure is explained in the State’s 

PY 2019 WIOA Annual Statewide Performance 

Report Narrative, which can be accessed at https:// 

www.dol.gov/sites/dolgov/files/eta/performance/ 

pdfs/PY2019/PA_PY19%20WIOA%20Annual%20

Report%20Narrative.pdf (last visited Jan. 27, 2022). 

18S. 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%20

Serving%20Employers_Final%20Report.pdf. 19See 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 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, 

like the displacement of goals or conflict with other 

goals’’). 

• Employer Penetration PY 2021 

Rate: 8 percent (48 States reported using 

this definition). 

Exhibit 1 summarizes this information 

and provides further detail about the 

calculation methodology used to 

determine the outcome rate for the three 

approaches. 

EXHIBIT 1—PILOT DEFINITION OUTCOMES FOR PROGRAM YEAR 2021 

Pilot definition 

Performance 

outcome 

national rate 

(%) 

Pilot definition calculation methodology * 

Number of 

states 

reporting 

outcomes for 

definition 

Retention with the Same Employer 56 The number of participants with wage records 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 who exit and were employed during the second quarter after exit.

35 

Repeat Business Customer ............. 35 The total number of establishments, as defined by the Bureau of Labor 

Statistics (BLS) Quarterly Census of Employment and Wages 

(QCEW) program, served during the current reporting period (i.e., 

one program year) and that during the prior three reporting periods 

have used core program services more than once DIVIDED by the 

number of establishments, as defined by BLS QCEW, served during 

the current reporting period.

47 

Employer Penetration ...................... 8 The total number of establishments, as defined by the BLS QCEW program, that received a service or, if it is an ongoing activity, are continuing to receive a service or other assistance during the reporting 

period DIVIDED by the total number of establishments, as defined by 

BLS QCEW. This measure is a unique count of employers using 

WIOA core programs. If an establishment receives, or continues to 

receive, more than one service during the reporting period (i.e., during the program year), that establishment should be counted only 

once in this calculation.

48 

* As described in the joint guidance issued by the Departments. 

Throughout the pilot period, only one 

State reported on a State-specific 

approach to the effectiveness in serving 

employers performance indicator.16

However, this State-specific approach 

was only applied to Wagner-Peyser Act 

programs (as amended by WIOA title 

III), not all six core programs.17

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.18 (hereinafter referred 

to as the Final Pilot Study Report). 

Specifically, the Final Pilot Study 

Report assessed each approach to 

defining the effectiveness in serving 

employers performance indicator for 

validity, reliability, practicality, and 

unintended consequences.19 Though the 

Final Pilot Study Report 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 and considering 

the subject matter expertise gained 

through the Departments’ 

administration of WIOA, the 

Departments concluded, as explained in 

the Joint WIOA Effectiveness in Serving 

Employers NPRM, that Retention with 

the Same Employer provides a valid and 

reliable approach to measuring the 

indicator, while placing the least 

amount of burden on States to 

implement it. 

The Departments received several 

comments regarding the pilot, findings 

from the Final Pilot Study Report, and 

alternatives to measuring the 

effectiveness in serving employers 

performance indicator. These comments 

and the Departments’ responses are 

discussed below. 

Suggestions To Use Multiple 

Performance Indicators To Measure 

Effectiveness in Serving Employers 

Comments: One commenter asserted 

that the Retention with the Same 

Employer measure only provides a 

partial perspective for how the system is 

serving employers and urged the 

Departments to consider the other 

performance measures piloted over the 

previous period, as well as additional 

information, to more comprehensively 

demonstrate the impact of services 

rendered to employers. 

A commenter stated that the Final 

Pilot Study Report noted the benefit of 

using multiple measures to understand 

the WIOA system’s effectiveness in 

serving employers. According to the 

commenter, the Final Pilot Study Report 

asserted that because the system uses 

multiple measures to understand the 

system’s effectiveness in serving 

workers, it would make sense to use 


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Federal Register / Vol. 89, No. 37 / Friday, February 23, 2024 / Rules and Regulations 13819 

multiple measures to understand the 

system’s effectiveness in serving 

employers. The commenter suggested 

additional data collection methods to 

better understand the system’s 

effectiveness in meeting employers’ 

needs, including periodic, random, and 

anonymous satisfaction surveys for both 

workers and employers, WIOA system 

user satisfaction surveys, and focus 

groups with both workers and 

employers. 

Departments’ Response: As discussed 

in more detail in the introduction to 

Section II.A. above, the Final Pilot 

Study Report considered each approach 

to defining the effectiveness in serving 

employers performance indicator for 

validity, reliability, practicality, and 

unintended consequences. Based upon a 

review of the pilot results, the 

Departments determined that a single 

measure best limits the implementation 

burden to States. Moreover, while the 

Final Pilot Study Report may have 

noted advantages for using multiple 

measures to understand the system’s 

effectiveness in serving employers, the 

Departments note, in response to the 

commenter, that the Final Pilot Study 

Report did not definitively conclude 

multiple measures were necessary to 

assess effectiveness in serving 

employers. Therefore, the Departments 

decline to amend this final rule to use 

multiple approaches for defining the 

effectiveness in serving employers 

indicator of performance. 

Over the pilot period and through 

stakeholder engagements, the 

Departments heard from employers 

about the burden of surveys and the 

preference for a measure that did not 

rely on survey responses. Because a 

survey would be too burdensome, the 

Departments decline to accept the 

suggestion to use surveys to assess 

effectiveness in serving employers. 

Alternative Approaches to Defining 

Effectiveness in Serving Employers 

Performance Indicator 

Comments: The Departments received 

comments in support of alternative 

approaches to measuring effectiveness 

in serving employers. These comments 

included preferences for other piloted 

approaches (Employer Penetration and 

Repeat Business Customer) or variations 

thereof, as well as a variety of 

suggestions for application of those 

various metrics. 

Other commenters voiced support for 

different approaches, such as tracking 

work-based learning services, using 

employer satisfaction surveys, and 

tracking a suite of data points: 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 American Job 

Center (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. 

A different commenter suggested 

Employer Penetration could be 

improved by measuring the increase in 

businesses served rather than the actual 

penetration rate, using a recording 

period longer than a quarter, and using 

penetration figures determined by 3- 

digit North American Industry 

Classification System (NAICS) sectors. 

Departments’ Response: The 

Departments acknowledge the various 

benefits of the different proposed pilot 

approaches for measuring the 

effectiveness in serving employers 

indicator. The Departments also 

appreciate the suggestions of different 

additional approaches to be considered; 

however, these metrics do not apply 

well to all six WIOA core programs due 

to differences in program design. For 

example, among the WIOA core 

programs, only Wagner-Peyser Act 

programs provide job order services to 

employers. Therefore, a job order 

measure would not be applicable to all 

six WIOA core programs. Moreover, as 

noted in the introduction to Section 

II.A. above, throughout the 6-year pilot 

period, States could submit a Statespecific approach for measuring 

effectiveness in serving employers. Only 

one State did so throughout the pilot 

period, which suggests that States did 

not identify any viable additional 

approaches. The Departments do not 

believe it is prudent to impose untested, 

unpiloted approaches, through this final 

rule, particularly given the benefits and 

use of the Retention with the Same 

Employer metric. 

The suggested alternative approaches 

mentioned in the comments, such as 

Employer Penetration and Repeat 

Business Customer, were ultimately not 

selected as indicators of employer 

satisfaction 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, would be impractical to 

apply to all grantees across core 

programs, and would not fully track 

satisfied employers based on measuring 

only outputs of services provided. 

In the Joint WIOA Effectiveness in 

Serving Employers NPRM, the 

Departments explained their rationale 

for proposing the Retention with the 

Same Employer measure and not 

proposing either Employer Penetration 

or Repeat Business Customer as the 

definition for the effectiveness in 

serving employers performance 

indicator. Specifically, the Departments 

noted in the Joint WIOA Effectiveness in 

Serving Employers NPRM that 

Employer Penetration, which reports the 

percentage of employers using services 

out of all employers in the State, would 

have required counts of services 

provided to employers requiring States 

and local areas to report unique counts 

of employer establishments receiving 

services through the WIOA core 

programs. While the Employer 

Penetration definition would have the 

benefit of capturing the extent to which 

employers within a State are engaged 

with WIOA core programs and would 

provide those programs an incentive to 

work with additional employers, it 

would require a more data-intensive 

analysis than the Retention with the 

Same Employer approach. Additionally, 

in the Final Pilot Study Report, the 

Department found significant 

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 services; and (5) 

lack of sensitivity to industry sectors 

targeted by State and local workforce 

agencies. 

The Repeat Business Customer 

definition, which reports the percentage 

of employers receiving services in a year 

who also received services within the 

previous 3 years requires a more dataintensive analysis than the Retention 

with the Same Employer. In the Final 

Pilot Study Report, the Department also 

found significant 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 statistical adjustment model to 

mitigate the weaknesses and improve 

implementation and interpretation. 

As we summarized in the 

introduction to Section II.A., comments 

received in response to the NPRM, the 


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13820 Federal Register / Vol. 89, No. 37 / Friday, February 23, 2024 / Rules and Regulations 

20The Departments conducted an extensive 

consultation process regarding methods for 

measuring the effectiveness in serving employers 

performance indicator. Prior to publication of the 

Joint WIOA NPRM, the Departments engaged with 

numerous stakeholders through a series of town 

hall meetings with State workforce agencies, State 

and local workforce development boards, and 

members of the employer community in September 

and October 2014, in various cities across the 

country (80 FR 20609). A great deal of discussion 

regarding proposed methods for measuring this 

indicator took place during the consultation 

process. The outcome of these discussions was the 

three options listed in the NPRM. Understanding 

the importance of receiving extensive feedback on 

this issue, the Departments requested further input 

via the NPRM and the WIOA Joint Performance ICR 

(81 FR 55848). 

21ETA’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-ServingEmployers-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-GroupEffectiveness-in-Serving-Employers. 

22Annual performance reports can be found on 

ETA’s website. ETA, ‘‘Workforce Performance 

Results,’’ https://www.dol.gov/agencies/eta/ 

performance/results (last visited Apr. 26, 2023). 

findings of an independent study 

conducted on the pilot, and the data 

reported by States in their annual 

reports, all considered, have not 

persuaded the Departments to change 

course and adopt either of the other 

alternative definitions for the 

effectiveness in serving employers 

performance indicator. Instead, the 

Departments adopt through this final 

rule the Retention with the Same 

Employer measure as the definition for 

the effectiveness in serving employers 

performance indicator as proposed. See 

87 FR 56318, 56323. 

Regarding employer satisfaction 

surveys, the Departments note that 

employer satisfaction surveys introduce 

a higher level of burden and potentially 

inconsistent results because of the 

subjective nature of such surveys and 

the respondents completing them 

compared to the quantifiable and 

verifiable employment data collected 

and reported for 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 

55792, 55848),20 employers specifically 

commented that they consider 

satisfaction surveys burdensome and 

recommended they not be used in this 

indicator. At that time, several 

employers also provided input that 

reducing employee turnover was 

paramount for their success. 

The Departments appreciate the 

commenters’ ideas for additional data 

points to be collected and encourage 

States to do so where it aids in guiding 

service delivery policies. Specifically, 

commenters 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 

Departments decline to use these 

additional data points in defining the 

effectiveness in serving employers 

indicator because they are not 

applicable to all of the programs, and in 

cases where the metric is a count of 

services they would merely measure the 

quantity of services provided to 

employers rather than the effectiveness 

of those services. The Departments 

believe 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 

in this case, and therefore is not ideal 

for measuring effectiveness in serving 

employers. 

After careful consideration of public 

comment opportunities, ongoing State 

stakeholder engagement efforts,21

review of pilot data and narrative input 

submitted since 2017 through required 

annual performance reports,22 and a 

third-party study, the Departments 

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 States to 

implement. 

Recommendation To Extend Pilot for an 

Additional 2 Years and Allow More 

Time for Testing Other Measures 

Comments: Numerous commenters 

recommended that the pilot be extended 

for an additional 2 years to allow for the 

development of new and innovative 

indicators and urged that States be 

encouraged to propose such indicators. 

Several commenters remarked on the 

interruptions the Coronavirus disease 

2019 (COVID–19) pandemic caused to 

the labor market and the resulting 

difficulties with the collection of 

representative and useful data during 

the pilot. 

A commenter recommended that the 

Departments allow additional time for 

States to identify and test different ways 

of measuring participant career 

progression instead of only employee 

retention. 

Departments’ Response: After 

reviewing the outcomes of the Final 

Pilot Study Report and the information 

learned in the study, the Departments 

determined the 6-year pilot period was 

sufficient to gather relevant experience 

with the possible approaches. There is 

no evidence to suggest, and the 

commenters did not provide any such 

evidence, that extending the pilot 

period for potential approaches to 

measure effectiveness in serving 

employers would result in substantially 

new information. WIOA reporting did 

not cease during the COVID–19 

pandemic, and States still submitted 

pilot data. While there was an impact on 

some service delivery, particularly with 

respect to the approaches used for 

delivering those services, there was no 

change in the Departments’ expectations 

for States to continue to provide 

services to participants and employers. 

Therefore, the Departments believe that 

the data from the program years affected 

by the pandemic are representative and 

useful to determine the definition of the 

effectiveness in serving employers 

performance indicator, and these same 

years will provide useful data for 

purposes of the statistical adjustment 

model when the Departments determine 

there are sufficient data available to 

produce reliable results to assess for 

performance of this indicator. 

Furthermore, there has been ample time 

to test and provide suggestions for other 

potential approaches to measure this 

indicator during the pilot period. The 

Departments do not agree that extending 

the pilot period for identifying new 

potential measures for the effectiveness 

in serving employers indicator at this 

time would likely result in substantially 

new information, particularly given that 

only one State developed its own 

measure during the pilot period that 

lasted 6 program years, which was 

ample time for States to suggest an 

alternative metric (see the introduction 

to Section II.A. for complete 

discussion). Therefore, the Departments 

decline to extend the pilot phase and, 

instead, have decided to define the 

indicator as described in this final rule. 


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23WIOA secs. 159(c), 166(h), 167(c)(3), and 171(f) 

direct the Secretary of Labor to establish levels of 

performance for the relevant primary indicators of 

performance in WIOA sec. 116(b)(2)(A) for the Job 

Corps program, Indian and Native American 

programs, the National Farmworker Jobs Program, 

and the YouthBuild program, respectively. 

24The regulations for definitions for the other 

WIOA performance indicators do not include 

descriptive or general names of the indicators; they 

simply provide the definitions of the indicators. For 

consistency with the regulations for the other 

indicators, final § 677.155(a)(1)(vi) removes the 

name of the effectiveness in serving employers 

indicator and adds the definition. 

The Departments believe this definition, 

as adopted in this final rule, will 

promote accountability in serving 

employers and ultimately benefit 

workforce system participants. 

After careful consideration of the 

information gained from the States’ 

reports on using the three piloted 

approaches, the Final Pilot Study 

Report’s findings, and the comments on 

the pilot and other potential approaches 

to defining effectiveness in serving 

employers, the Departments are 

finalizing the proposed definition of the 

effectiveness in serving employers 

performance indicator as Retention with 

the Same Employer on a statewide level. 

As discussed in further detail below in 

Section II.B, this final rule implements 

the proposed changes to 20 CFR 

677.155(a)(1)(vi) and (c)(6), with one 

modification. 

WIOA sec. 116(b)(2)(A)(i)(VI) applies 

the same effectiveness in serving 

employers performance indicator to four 

non-core programs DOL administers 

under WIOA title I.23 For consistency 

and alignment across WIOA programs, 

in addition to all the reasons discussed 

above, DOL is incorporating this same 

definition for the effectiveness in 

serving employers performance 

indicator into regulations in a separate, 

but related, rulemaking, DOL-Only 

Performance Accountability Final Rule 

(RIN 1205–AC08), published 

concurrently with this final rule 

elsewhere in the Federal Register. 

B. Retention With the Same Employer 

for the Effectiveness in Serving 

Employers Performance Indicator in 

§ 677.155 

§ 677.155 What are the primary 

indicators of performance under the 

Workforce Innovation and Opportunity 

Act? 

Section 677.155 sets forth the primary 

indicators of performance that the 

Departments use to evaluate the 

performance of WIOA’s six core 

programs, as required by WIOA sec. 

116(b)(2)(A)(i). These primary 

performance indicators apply to the six 

WIOA core programs (i.e., adult, 

dislocated worker, and youth programs, 

the AEFLA program, Wagner-Peyser Act 

programs, and the VR program). These 

primary performance indicators create a 

common language shared across the 

programs’ performance measures, 

support system alignment, enhance 

programmatic decision-making, and 

help participants make informed 

decisions related to training, all of 

which are consistent with the purposes 

of WIOA as stated in WIOA sec. 2. 

Paragraphs 677.155(a)(1)(vi) and (c)(6) 

implement the sixth statutory 

performance indicator as described in 

WIOA sec. 116(b)(2)(A)(i)(VI), subject to 

WIOA sec. 116(b)(2)(A)(iv), which 

requires the Departments to develop the 

indicator after consultation with the 

stakeholders listed at WIOA sec. 

116(b)(4)(B) and discussed above. This 

performance indicator measures 

program effectiveness in serving 

employers. 

In this final rulemaking, for the 

reasons discussed in the NPRM and in 

Section II.A. above, the Departments 

have decided to revise 

§ 677.155(a)(1)(vi) to establish Retention 

with the Same Employer as the standard 

definition for measuring effectiveness in 

serving employers, the sixth 

performance indicator for all WIOA core 

programs. The final rulemaking removes 

the general title of ‘‘effectiveness in 

serving employers’’; 24 defines Retention 

with the Same Employer as the 

percentage of participants who exited 

the program in unsubsidized 

employment and were employed by the 

same employer in the second and fourth 

quarters after exiting the program; 

clarifies that, for the six WIOA core 

programs, the indicator is a statewide 

indicator that is reported by one core 

program on behalf of all six core 

programs in the State; and references 

guidance to signal to States that the 

Departments will provide additional 

details and explanations for reporting 

on the effectiveness in serving 

employers performance indicator in 

joint guidance. The final rulemaking 

also updates § 677.155(c)(6) to define 

effectiveness in serving employers as 

Retention with the Same Employer for 

the WIOA title I youth program in a 

manner that mirrors the definition for 

the other WIOA core programs in 

paragraph (a)(1)(vi) as just described. 

For the reasons discussed below, in 

response to multiple comments received 

to allow for the use of supplemental 

wage information in the definition of 

measuring effectiveness in serving 

employers, this final rulemaking 

removes references to wage records in 

§ 677.155 that had been proposed in the 

Joint WIOA Effectiveness in Serving 

Employers NPRM. This change clarifies 

that the sources of wage data are not 

limited, meaning they could be wage 

records or supplemental wage 

information. As noted above, the 

Departments also want 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. 

Support for Retention With the Same 

Employer 

Comments: Several commenters were 

generally supportive of the proposal to 

use Retention with the Same Employer 

as the definition for effectiveness in 

serving employers. Supportive 

comments include assertions that when 

an employee is performing their duties 

competently, their employer generally 

tries to retain the employee. Similarly, 

other commenters stated that Retention 

with the Same Employer demonstrates 

the effectiveness with which employee 

skills and training have been matched to 

employer needs. Another commenter 

argued that Retention with the Same 

Employer demonstrates a continued 

relationship between the employer and 

participants, as well as the success of 

WIOA customers, while the other two 

piloted approaches are based only on 

employer data and fail to capture job 

match effectiveness. Another 

commenter expressed support for the 

proposal because, in their view, it 

would benefit the workforce and 

promote cost savings for employers in 

the long term. 

Several commenters agreed with the 

Departments’ conclusion that Retention 

with the Same Employer would be the 

least burdensome definition of the three 

piloted measures. Similarly, another 

commenter agreed that this definition 

would be the least burdensome 

approach because States already collect 

wage records for other WIOA-related 

reporting and because States would be 

able to coordinate data aggregation for 

the six core programs more easily with 

this measure than with the other two 

piloted measures. Another echoed this 

sentiment, adding that the measure 

would be based on data that is objective, 

already collected by many States, and 

that can be standardized across States 

and territories. 

Departments’ Response: We 

appreciate commenters supporting 

Retention with the Same Employer as 

the definition for effectiveness in 


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13822 Federal Register / Vol. 89, No. 37 / Friday, February 23, 2024 / Rules and Regulations 

serving employers. As discussed in 

more detail in Section II.A., we agree 

that this definition best aligns with 

WIOA employment performance 

indicators by using existing Participant 

Individual Record Layout (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), is the least burdensome 

definition of the three piloted measures, 

effectively illustrates the workforce 

system’s ability to serve employers by 

reducing new employee turnover, and 

minimizes the burden on States and 

employers in measuring effectiveness in 

serving employers. 

Retention With the Same Employer 

Definition: Program Impacts 

Comments: Several commenters 

raised numerous points in asserting that 

adopting Retention with the Same 

Employer would adversely impact 

service delivery design and business 

outreach services. Commenters 

expressed opposition to measuring 

effectiveness in serving employers with 

Retention with the Same Employer, 

asserting that changing employers often 

enables individuals to seek jobs with 

higher pay or better benefits, which is 

a positive outcome but would reflect 

negatively on WIOA programs under the 

proposed definition. A few commenters 

asserted that, by negatively counting 

individuals who switch jobs, the 

proposed measure would incentivize 

programs to place individuals in jobs 

with minimal mobility, punish 

programs that provide individuals with 

skills and knowledge that enable them 

to seek higher paid jobs with other 

employers, and disincentivize programs 

from sharing better job placements 

because retention numbers would 

decrease if a participant switched to a 

better job after their initial placement. 

Other commenters shared these 

concerns, asserting that programs 

should not be punished if participants’ 

employment growth is with a different 

employer from the one with which the 

individual is initially placed and that 

WIOA participants should not be 

trapped in a job for the sake of WIOA 

programs’ performance indicators. 

Similarly, one commenter expressed 

concern that by incentivizing placing 

individuals in positions with limited 

mobility, the measure could serve to 

perpetuate or worsen racial and 

economic inequities or lead to worker 

exploitation, as well as further 

disadvantage job seekers with criminal 

records, undocumented immigrants, and 

individuals receiving income 

supplements conditioned on engaging 

in work activities. 

Another commenter reasoned that 

while retention indicates some level of 

employer satisfaction, it may not be the 

desired outcome for the job seeker, who 

may be in a low-wage position or need 

to work multiple jobs to earn a living 

wage. 

Another broad theme of opposition to 

the proposed measure is that Retention 

with the Same Employer primarily 

measures the success of a job seeker. A 

commenter asserted that success 

according to the proposed measure 

requires ongoing support of job seekers, 

not employers, which WIOA programs 

often provide, but that the employer 

inputs, such as wages, working 

conditions, and workplace culture, are 

not related to WIOA services. Similarly, 

another commenter asserted that the 

indicator would not measure or identify 

when an employer receives a service, 

stating that it would primarily reflect 

intervention with a client. 

Several commenters asserted that 

using the proposed definition could 

disincentivize employers to support and 

train employees in such a way that 

enhances employees’ ability to advance 

into a better job with another employer. 

Other commenters asserted that a 

performance indicator that prioritizes 

Retention with the Same Employer 

would be particularly misaligned with 

the current economy, in which 

employers are offering bonuses, higher 

salaries, and other benefits to attract 

talent. Another commenter remarked 

that high costs of living have forced 

many employees to move from 

expensive metropolitan areas to less 

expensive rural areas, thus leaving their 

jobs. 

Several commenters raised concerns 

that Retention with the Same Employer 

is not a good fit for newer and smaller 

employers, younger workers, and 

certain sectors of the economy. One 

commenter said that while it considered 

the proposed definition to be the best of 

the three piloted definitions, measuring 

effectiveness in serving employers 

through Retention with the Same 

Employer would disincentivize 

programs from working with new or 

small employers because their employee 

retention history may be unknown and, 

thus, they may be seen as a risky 

partner. 

A couple of commenters asserted that 

the proposed definition would not be 

the best measure of effectiveness in 

serving employers for younger 

generations, who are increasingly 

populating the workforce, place a high 

value on work/life balance, and will 

readily leave a position for a better 

opportunity, or for gig-economy 

workers, who change jobs frequently in 

search of better opportunities. 

One commenter expressed concern 

that the proposed measure could 

negatively capture seasonal employment 

noting that some employers require 

seasonal employment so retention in the 

second and fourth quarters is not 

assessing the effectiveness of services 

provided to these employers. Similarly, 

another commenter noted that the 

metric does not recognize instances in 

which rapid replacements or temporary 

positions are necessary for fulfillment. 

The commenter noted that for those 

employers, skills training and WIOA 

services have little influence over 

retention rates. Similarly, another 

commenter asserted that the proposed 

measure would reflect negatively on 

WIOA programs in States where much 

of the workforce is transient. 

Departments’ Response: The 

Departments acknowledge the wide 

range of concerns expressed by 

commenters that implementing the 

Retention with the Same Employer 

definition may have adverse impacts on 

job seeker services and business 

outreach. The Departments address 

these concerns below. 

Job mobility: The Departments note 

that an individual who moves 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 

that the participant remain in the same 

employment status or position with the 

employer to count as a positive 

outcome. The Departments also note 

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 core program and initially hired 

the participant. The Departments also 

agree 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 or other 

industries with cyclical work cycles that 

could impact calculated retention rates. 

These external economic impacts are 

likely not unique to one specific 

geographic area. If external economic 

factors were to affect the outcome of the 

indicator, they would be captured in the 

statistical adjustment model. 

Additionally, regarding States with a 

higher transient worker population or 

where individuals are more likely to 


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Federal Register / Vol. 89, No. 37 / Friday, February 23, 2024 / Rules and Regulations 13823 

25ETA, TEGL No. 04–23, ‘‘Requirements for 

Workforce Innovation and Opportunity Act (WIOA) 

State Plans for Program Years (PY) 2024–2027,’’ 

Oct. 31, 2023, https://www.dol.gov/agencies/eta/ 

advisories/tegl-04-23; ED, OCTAE Program 

Memorandum 24–2, ‘‘Requirements for Workforce 

Innovation and Opportunity Act (WIOA) State 

Plans for Program Years (PY) 2024–2027,’’ Oct. 31, 

2023, https://www2.ed.gov/about/offices/list/ovae/ 

pi/AdultEd/octae-program-memo-24-2.pdf; ED, 

RSA–TAC–24–02, ‘‘Requirements for Workforce 

Innovation and Opportunity Act (WIOA) State 

Plans for Program Years (PY) 2024–2027,’’ Oct. 31, 

2023, https://rsa.ed.gov/sites/default/files/ 

subregulatory/TAC-24-02.pdf. 

leave for a higher paying job, the 

Departments’ statistical adjustment 

model will account for such differences 

as it adjusts for variations in economic 

conditions and participant 

characteristics. These adjustment 

differences by the statistical adjustment 

model will be critical when the 

Departments determine there are 

sufficient data to produce reliable 

results for performance assessment 

purposes with the effectiveness in 

serving employers indicator. 

The Departments acknowledge that 

individuals may leave for higher wages 

with a new employer, but States 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 and as 

discussed more fully in Section II.A., 

the Departments are 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 States 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 core 

programs not only meet the long-term 

needs of the participants but also the 

needs of employers in each State. 

Equity: The Departments disagree 

with the comment that the selected 

metric will potentially perpetuate or 

worsen racial and economic inequities 

or negatively impact those with justice 

system issues, immigrants, and those 

receiving income supplements 

conditioned on engaging in work 

activities. As discussed in other parts of 

this final rule, we believe the Retention 

with the Same Employer metric does 

allow for employment opportunities and 

upward mobility for all workers. To be 

clear, the metric measures the number 

of participants who remained with the 

same employer over a period of time, 

not necessarily in the same job position 

or even the same geographic location. 

Consistent with various requirements of 

WIOA, the Departments continually 

emphasize that States and local areas 

should serve all participants so that they 

may obtain unsubsidized and 

sustainable employment. For example, 

as discussed more fully in 

‘‘Requirements for Workforce 

Innovation and Opportunity Act 

(WIOA) State Plans for Program Years 

(PYs) 2024–2027,’’ jointly issued by the 

Departments on October 31, 2023,25

when developing their annual plans, 

States and local areas should 

demonstrate how they will develop 

education, training, and career service 

strategies that better address and 

promote equity to improve access and 

outcomes for disadvantaged 

populations. Furthermore, serving all 

participants, including those with 

barriers to employment, so that they 

may obtain unsubsidized and 

sustainable employment is reflected in 

the WIOA primary indicators of 

performance that measure all 

participants’ employment in the second 

and fourth quarters after exit. Given that 

the definition of effectiveness in serving 

employers adopted by this final rule 

uses the data obtained in these 

indicators, the effectiveness in serving 

employers indicator will also reflect 

States’ service delivery to all WIOA 

participants, including those with 

barriers to employment. 

Another example is WIOA sec. 

134(c)(3)(E), which requires that priority 

be given to recipients of public 

assistance, low-income individuals, and 

individuals who are basic skills 

deficient (including English language 

learners) when individualized career 

services and training services are 

provided using funds allocated to a 

local area for the WIOA title I Adult 

program. This priority of service 

requirement applies when providing 

these services under the title I Adult 

program at all times, regardless of the 

amount of funds available to provide 

services in the local area. WIOA 

requires States to develop criteria, 

policies, and procedures for applying 

this priority for purposes of the title I 

Adult program, including monitoring 

local areas’ compliance with this 

priority (see 20 CFR 680.600 and TEGL 

No. 19–16). Moreover, for the AEFLA 

and VR programs, section 427 of the 

General Education Provisions Act (20 

U.S.C. 1228a) requires grantees to 

include in their applications—i.e., their 

WIOA State Plans—a description of how 

they will ensure participants’ equitable 

access to and participation in the 

programs by addressing barriers based 

on gender, race, national origin, color, 

disability, and age. Lastly, WIOA 

permits States to develop and use 

internal metrics in addition to those 

reported to the Departments. This 

encourages States and local areas to 

develop and track additional measures 

that enhance internal service delivery 

policies, and continue to track the 

impact of any sector-specific strategies 

particularly relevant to their State. 

Therefore, the Departments have 

concluded that the Retention with the 

Same Employer definition for the 

effectiveness in serving employers 

performance indicator will not 

contribute to racial and economic 

inequities or negatively impact WIOA 

core program participants. 

Counting services provided to 

employers: Some commenters suggested 

defining the measure as a count of the 

services delivered to employers. As 

discussed above in Section II.A, the 

Departments note that counting services 

would be measuring an input (effort) 

rather than an output (effectiveness). 

Aligning with the approach of all other 

indicators, Retention with the Same 

Employer measures output (results), 

whether an exiter is retained at the same 

employer in both the second and fourth 

quarters after exit, rather than a count of 

services to employers. The number of 

services does not necessarily provide a 

direct correlation to the effectiveness in 

serving employers. Therefore, the 

Departments have decided to use an 

outcome measure, such as retention of 

employees, as the desired goal to be 

measured through this indicator. 

Lack of inclusion of the job seeker: 

Commenters expressed concern that the 

chosen definition for this measure 

focused unnecessarily on services to 

employers to the detriment of job 

seekers. WIOA sec. 116(b)(2)(A)(i)(VI) 

requires the Departments to assess 

‘‘effectiveness in serving employers.’’ 

Therefore, this metric necessarily 

focuses on services to employers, not 

the job seekers. Nevertheless, Retention 

with the Same Employer highlights the 

alignment between employers and job 

seekers by measuring the workforce 

system’s alignment with employer 

needs during the second and fourth 

quarters after a participant exits WIOA 

programs. 

Effectiveness in serving employers is 

one of six indicators of performance 

under WIOA; it is the only shared 


ddrumheller on DSK120RN23PROD with RULES2
13824 Federal Register / Vol. 89, No. 37 / Friday, February 23, 2024 / Rules and Regulations 

indicator across core programs, and the 

only indicator that is not designed to 

measure job seeker outcomes. In other 

words, all other performance indicators 

(i.e., employment in the second and 

fourth quarters after exit, median 

earnings in the second quarter after exit, 

credential attainment, and measurable 

skill gains) are designed to assess job 

seeker outcomes. However, the 

Departments also recognize that a 

service delivery design solely focused 

on the effectiveness in serving 

employers performance indicator, 

without regard to job seeker needs, 

would be at risk of failing to meet other 

areas of program performance. 

Therefore, the Departments have 

concluded that the chosen definition for 

the effectiveness in serving employers 

performance indicator strikes the proper 

balance between the needs of employers 

and those of job seekers and, thus, will 

not have a detrimental impact on job 

seekers. 

Employer training: The Departments 

believe it more likely that employers 

provide training to encourage 

employees to advance within their own 

company. The performance indicator 

under WIOA is intended to measure the 

effectiveness of the WIOA core 

programs in serving employers. 

Retention with the Same Employer is 

calculated as the percentage of 

participants in unsubsidized 

employment who exited the program 

and were employed by the same 

employer in the second and fourth 

quarters after exiting the program. As 

such, the indicator is not designed to 

measure the internal training practices 

of employers, but rather the 

effectiveness of AJC services by 

reducing employee turnover within the 

first year of employment. 

Outreach to and working with smaller 

or newer employers: The Departments 

acknowledge the needs of new and 

small employers and have determined 

that the definition for effectiveness in 

serving employers makes no distinction 

about the size of the employer, and 

therefore is not a disincentive for 

working with employers of any size. 

The Departments encourage programs, 

at both the State and local levels, to 

work closely with new and small 

employers to find participants who 

match well with the employers’ needs. 

Ultimately it is the responsibility of the 

programs to assist job seekers in finding 

meaningful, long-lasting employment 

opportunities. Moreover, the Retention 

with the Same Employer calculation is 

not restricted to employers who 

received a direct employer service 

through a WIOA core program, so there 

is no incentive for WIOA core programs 

to avoid providing services to new or 

small employers. 

The Departments acknowledge that 

individuals may leave for higher wages 

with a new employer, but there are a 

variety of ways in which States can seek 

to address these concerns in 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. The Departments 

encourage provision of WIOA services 

to new and small employers to enhance 

employee retention. Examples of such 

services include, but are not limited to, 

the provision of labor market 

information to demonstrate what 

constitutes competitive wages and 

benefits in their industry, working with 

employers to develop career pathways 

for employees to pursue and advance in 

employment, providing technical 

assistance on the hiring of individuals 

with disabilities (including the 

requirements of the Americans with 

Disabilities Act), and sharing other 

research on the factors that increase 

retention rates. The Departments note 

that there is no restriction on working 

with new and small employers and 

expect that Retention with the Same 

Employer will lead to better services. 

Seasonality: In cases of temporary 

seasonal work, AJCs should strive to 

place participants into long-term 

employment opportunities when 

possible. While a seasonal employee 

will not be a positive outcome in the 

indicator, the statistical adjustment 

model will account for this, and the 

Departments do not expect States to 

achieve a 100 percent positive outcome. 

Retention With the Same Employer and 

Other Aspects of Effectiveness in 

Serving Employers 

Another broad theme that 

commenters raised in opposition to the 

proposed measure was that it would not 

measure all of the aspects of 

effectiveness in serving employers. 

Their primary assertions were that 

outcomes may be skewed due to the 

inclusion or exclusion of specific 

populations, wage sources, or employers 

in the calculation. 

Comments: One commenter expressed 

concern that not all employers who 

receive a service from the local 

workforce development board would 

have the effectiveness of those services 

assessed using the Retention with the 

Same Employer definition. For example, 

the commenter stated that if a local 

workforce development board hosted a 

job fair and an employer hired someone 

who was not a WIOA participant, those 

services to the employer would not be 

taken into account. 

Commenters provided feedback 

regarding the pools of individuals and 

employers being measured in the 

proposed Retention with the Same 

Employer approach. They suggested that 

only employers that received a direct 

WIOA service be measured, that only 

targeted industries be included, that 

businesses that issue Worker 

Adjustment and Retraining Notification 

(WARN) Act notices be exempted, that 

participants employed by companies 

impacted by a qualified plant closing or 

mass layoff identified through the 

WARN Act Notification process if they 

lose or change employment locations be 

excluded, that employers that close or 

conduct layoffs during the reporting 

period be excluded from the measure’s 

calculations, that the metric not include 

changes in employer caused by firms 

going bankrupt or downsizing, or that 

the measure extend beyond WIOAfunded programs. 

Another comment mentioned that the 

proposed rule will solely focus on 

dislocated workers and that the greater 

public workforce system will suffer as 

this rulemaking will not encourage 

collaboration where dislocated workers 

are not present. 

Some commenters noted that 

employers may have received no 

services. One commenter argued that 

while retention indicates some level of 

employer satisfaction, it does not speak 

to what business service an employer 

received. Similarly, a few commenters 

asserted that the performance indicated 

by the measure might not be a result of 

employers receiving a direct service 

from the workforce development 

system. Another commenter stated that 

the measure would say little about 

actual interactions between employers 

and their local workforce development 

board. 

One commenter asserted that the 

proposed measure would not reflect the 

effectiveness of direct employer 

interaction, because placement of 

participants at a specific employer is not 

the result of employer service delivery 

but of credential skills obtained through 

tuition assistance, and that the 

employers reflected in the measure may 

not have sought or received a service 

but simply had a job opening filled by 

a program participant. Several 

commenters asserted that the proposed 

measure has no mechanism for linking 

the retention of a particular employee 

with instances of employer services 

being provided, therefore only 

indirectly reflecting effectiveness in 


ddrumheller on DSK120RN23PROD with RULES2
Federal Register / Vol. 89, No. 37 / Friday, February 23, 2024 / Rules and Regulations 13825 

26For example, 34 CFR 361.3 authorizes State VR 

agencies to expend VR funds on the costs of 

providing VR services and administering the 

program. According to 34 CFR 361.5(c)(2)(iii) and 

(iv), administrative costs include providing 

information about the VR program to the public 

(which, for purposes of this final rule, would 

include the broader employer community) and 

technical assistance and support services to other 

State agencies, private nonprofit organizations, and 

businesses and industries. In addition, 34 CFR 

361.49(a)(4) permits State VR agencies to provide 

technical assistance to businesses that are seeking 

to employ individuals with disabilities. There is no 

requirement the business be seeking to hire a 

current VR program participant. 

27Pursuant to WIOA sec. 116(b)(3)(A)(viii), the 

Departments developed an objective statistical 

adjustment model that is used to both negotiate 

expected levels of performance for each of the 

performance indicators to be incorporated into the 

approved Unified or Combined State Plan or State 

Plan modification (WIOA sec. 116(b)(3)(A)(iv)), and 

for purposes of determining the adjusted levels of 

performance for each indicator at the end of the 

Program Year (WIOA sec. 116(b)(3)(A)(vii)). For 

more detailed information about the statistical 

adjustment model, see the negotiations and 

sanctions guidance in TEGL No. 11–19, Change 1, 

Continued 

serving employers and failing to inform 

strategic action to improve performance. 

The commenters further stated that 

the measure can be calculated without 

any employer services data. Other 

commenters stated that Retention with 

the Same Employer does not capture all 

services to an employer. A commenter 

critical of the proposed measure 

asserted that there are too many services 

provided to employers that are 

unrelated to a program-funded job 

seeker, and furthermore that 

employment status at program exit is 

unknown to local program operators. 

The commenter also asserted that the 

measure would not truly capture 

effectiveness because it is limited to 

program-funded job seekers and would 

not evaluate all employer services and 

is instead primarily a retention metric 

for WIOA-funded job seekers. 

Similarly, one commenter expressed 

opposition to the proposed measure, 

arguing that because AJCs and 

workforce development boards refer a 

universal pool of candidates for job 

openings, it would be inappropriate to 

only measure success for WIOAenrolled customers. Other commenters 

similarly criticized the proposed 

indicator because, while workforce 

systems will provide services to any job 

seeker, the only employers that would 

be captured are those that a WIOAfunded job seeker exits a program to be 

employed by. Another commenter noted 

that Retention with the Same Employer 

does not speak to acuity of placement 

(for example, how difficult the 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). A different commenter relatedly 

suggested that combining Retention 

with the Same Employer with some 

measure of acuity (such as skill/ 

education level of the position or time 

to placement) and the ability to filter for 

those employers who received a 

business service would improve the 

measure. 

Departments’ Response: As noted 

previously, the Departments have 

determined that Retention with the 

Same Employer in both the second and 

fourth quarters after exit demonstrates a 

successful match between the job seeker 

and the employer. Moreover, the 

services delivered by core programs 

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. 

WIOA 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 WIOA core program. 

Regarding the pool of participants 

measured in this indicator, one 

commenter mentioned that this metric 

only utilizes dislocated workers, but 

that is incorrect. The indicator will 

include all WIOA core program 

participants, regardless of employment 

status at time of participation or 

program enrollment. 

Regarding whether the proposed 

indicator measures all aspects of 

effectiveness in serving employers, the 

Departments believe there are many 

aspects to employer effectiveness, some 

of which are very difficult to quantify 

and report. Therefore, the Departments 

chose one aspect of effectiveness that 

employers stated would be beneficial 

and can be measured across programs 

and States with minimal burden to 

employers—employee retention. 

The Retention with the Same 

Employer calculation of effectiveness in 

serving employers is not restricted to 

employers who received a direct 

employer service through a WIOA core 

program. However, the services 

delivered by core programs, whether to 

participants or to the employers 

themselves, 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.26 WIOA 

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 WIOA core program; therefore, 

the Departments have determined that 

excluding employers that have not 

received a WIOA core program service 

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—from an employer that 

received services from a core program— 

as a result of services received from one 

of the six core programs, but change jobs 

within the first quarter after exiting the 

program to a new job with a different 

employer (that did not receive services 

from a WIOA core program) where the 

participant remained for at least a year. 

In these final regulations, the 

Departments define 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 core program and initially hired 

the participant. Furthermore, the 

Departments acknowledge that this 

metric is one of many aspects of 

effectiveness in serving employers, but 

believe that retention is an important 

aspect to measure as stated by employer 

representatives during stakeholder 

engagements. States are encouraged to 

measure effectiveness in serving 

employers in other methods that are not 

required to be submitted officially to the 

Departments for performance 

accountability, consistent with WIOA 

sec. 116(b)(1)(A)(ii). 

The Departments disagree with the 

suggestion that the metric should 

exclude cases where the participants are 

employed with employers that have a 

mass layoff or issue WARN notices. We 

did not exclude these employers 

because it is not practical to exclude 

them from the measure calculation. This 

is due to the limitations of the 

information that is currently available in 

State wage records, which will be the 

typical source for States to collect the 

required inputs for this metric. To the 

extent that States are concerned that this 

could impact results, the Departments 

anticipate the statistical adjustment 

model 27 will take into account this 


ddrumheller on DSK120RN23PROD with RULES2
13826 Federal Register / Vol. 89, No. 37 / Friday, February 23, 2024 / Rules and Regulations 

and related ED guidance. ETA, TEGL No. 11–19, 

Change 1, ‘‘Negotiations and Sanctions Guidance 

for the Workforce Innovation and Opportunity Act 

(WIOA) Core Programs,’’ May 10, 2023; https://

www.dol.gov/agencies/eta/advisories/tegl-11-19- 

change-1; ED, OCTAE Program Memorandum 20– 

2, ‘‘Negotiations and Sanctions Guidance for the 

Workforce Innovation and Opportunity Act (WIOA) 

Core Programs,’’ May 10, 2023, https://

www2.ed.gov/about/offices/list/ovae/pi/AdultEd/ 

octae-program-memo-20-2.pdf, ED, OCTAE 

Program Memorandum 20–2, Attachment I 

‘‘Calculation—Overall State Indicator and Program 

Scores,’’ May 10, 2023, https://www2.ed.gov/about/ 

offices/list/ovae/pi/AdultEd/octae-program-memo20-2-attachments.pdf; ED, RSA–TAC–20–02, 

‘‘Negotiations and Sanctions Guidance for the 

Workforce Innovation and Opportunity Act (WIOA) 

Core Programs,’’ May 10, 2023, https://rsa.ed.gov/ 

sites/default/files/subregulatory/RSA-TAC-20-02_

0.pdf 

concern. For this and other reasons, the 

Departments will not negotiate targets 

for this indicator at 100 percent. 

With regard to the concern that the 

definition of Retention with the Same 

Employer only indirectly reflects the 

effectiveness in serving employers and 

is not useful in informing strategic 

action to improve performance, the 

Departments note that this metric does 

not prevent States from including the 

information they feel is necessary in 

their strategic plans. States should 

incorporate labor market information, 

such as which occupations and 

industries are in demand, in their 

strategic plans. The Departments believe 

that information such as whether WIOA 

participants retain employment is 

important data to consider when States 

strategically plan outreach, business 

services, and participant service 

delivery design. Therefore, in terms of 

strategic planning at the State or local 

level, this metric will indicate the types 

of jobs participants are entering and 

retaining employment with, which may 

provide some indication of job quality. 

If a State’s outcome results for the 

Retention with the Same Employer 

metric are below target, strategic 

policies can be made to ensure 

participants are entering long-term 

sustainable unsubsidized employment 

at a higher rate. 

With regard to concerns that the 

Retention with the Same Employer 

indicator does not measure acuity of the 

WIOA participant’s job placement, the 

Departments continue to acknowledge 

that this metric is one of many aspects 

of assessing effectiveness in serving 

employers. As noted above, States are 

encouraged to measure effectiveness in 

serving employers in other methods that 

are not required to be submitted to the 

Departments for performance 

accountability. 

Comments: Commenters also 

expressed concerns about implementing 

one measure only and that one measure, 

or one data point, may not address all 

the facets of the effectiveness in serving 

employers indicator. Commenters also 

said that Retention with the Same 

Employer was not the best indicator of 

a program’s success in serving 

employers. 

One commenter expressed opposition 

to the proposed definition, asserting that 

it will be impacted by variables outside 

the control of State workforce agencies, 

such as ‘‘talent migration.’’ Similarly, 

another commenter asserted that many 

reasons that an employee might choose 

to leave a position within two quarters 

have little to do with how effectively the 

employer was served by the system. 

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 

similar concerns, asserting that 

retention depends on employers and 

employees learning to communicate 

effectively and employees getting along, 

adapting to company culture, acquiring 

new skills, and being satisfied with their 

job, which AJCs cannot control. A third 

commenter echoed these concerns, 

adding that factors such as labor 

shortages likely encourage employees to 

switch employers. 

One commenter stated that long-term 

employee retention is not solely about 

initial placement after exiting a 

program, asserting that commitment is 

required by both the employee and 

employer, and concluding that as a 

measure of effectiveness in serving 

employers, Retention with the Same 

Employer would not be able to prove or 

disprove the success of a program. 

Another commenter asserted that the 

proposed measure could deter local 

workforce development board and onestop center staff from taking a customerbased approach to career services and 

thus skew the results of the statistical 

adjustment model. 

Departments’ Response: The 

Departments recognize that there are 

many factors, beyond the control of the 

WIOA core programs, that can impact a 

participant’s Retention with the Same 

Employer. For that reason, as discussed 

more fully in Section II.A. above, the 

Departments considered other 

approaches during the 6-year pilot 

period and encouraged States to devise 

their own State-specific approaches to 

measuring effectiveness of serving 

employers. After considering all the 

evidence, the Departments considered 

the options of implementing more than 

one metric to measure effectiveness in 

serving employers, but determined a 

single indicator approach was most 

logistically feasible, aligned with the 

existing performance indicator 

structure, and resulted in lowest burden 

to grantees; this single indicator is set 

forth in this final rule at 20 CFR 

677.155(a)(1)(vi) and (c)(6). 

Single data point: The reason for 

selecting this one metric (and not a 

combination of measures) is that it is 

most applicable across the differing 

mandates and program designs of all six 

core programs, uses existing joint PIRL 

data elements, and effectively illustrates 

the broad impact of the workforce 

system’s ability to serve employers by 

reducing new employee turnover 

through effective job placement. 

Commenters to the proposed rule have 

provided several alternatives to the 

proposed measure, which are described 

in this document, and States are 

encouraged to internally adopt any of 

those suggested metrics that will 

provide feedback on the success of 

efficiently serving employers. To reduce 

burden on States, and to ensure that all 

States can accurately report on the data 

elements required, the Departments 

have decided to use one measure for the 

effectiveness in serving employers 

performance indicator, using existing 

common data elements across all core 

programs. 

The Departments acknowledge the 

challenges related to developing an 

indicator that reflects the efforts of 

multiple programs, avoids additional 

collection and reporting burden, and 

results in stable data that can be 

assessed across programs. The 

Departments note that Retention with 

the Same Employer has the benefit of 

aligning with two of the three 

employment-related performance 

indicators, specifically the employment 

in the second and fourth quarters after 

exit indicators that measure the 

employment outcomes of program 

participants. As such, it promotes the 

statutory purpose of WIOA to ‘‘support 

the alignment of workforce investment 

. . . in support of a comprehensive, 

accessible, and high-quality workforce 

development system in the United 

States.’’ WIOA sec. 2(2). The alignment 

of definitions, data elements, and 

performance indicators with one 

another, as the Departments have done 

with the Retention with the Same 

Employer metric for measuring the 

effectiveness in serving employers 

indicator, improves the 

comprehensiveness of the workforce 

development system in each State and 

nationwide. Information such as 

whether WIOA participants are retained 

in job placement is important data to 


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consider when States strategically plan 

outreach, business services, and 

participant service delivery design to 

ensure that the workforce system is 

matching employers with skilled 

workers to meet business needs, thereby 

satisfying another purpose of WIOA, as 

set forth in WIOA sec. 2(2), which is to 

‘‘provide America’s employers with the 

skilled workers the employers need to 

succeed in a global economy.’’ 

Addressing all factors of effectiveness 

in serving employers: The Departments 

agree 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. However, 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). Retention of an 

employee reduces the costs to the 

employer associated with employee 

turnover and retraining, which is 

enhanced when participants are placed 

in jobs aligned to their skills and career 

goals. 

Commenters also said that Retention 

with the Same Employer was not the 

best indicator of a program’s success in 

serving employers. Retention with the 

Same Employer is a measure of the 

workforce system’s alignment with 

employer needs and is measured during 

the second and fourth quarters after a 

participant exits WIOA programs. The 

Departments acknowledge that 

individuals may leave for higher wages 

with a new employer, but there are a 

variety of ways in which States can seek 

to address these concerns 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. 

The Departments acknowledge that 

the limitations for Retention with the 

Same Employer could include the 

unintended consequence that this 

approach may be at odds with an 

employee seeking a higher paying job or 

employment benefits. It is possible that 

a significant percentage of participants 

will not be counted in the numerator for 

this indicator. However, many of those 

participants who have left their current 

employer for another will contribute 

toward improved performance on 

employment-based indicators, such as 

median earnings. Moreover, as 

discussed above, the Departments 

believe that Retention with the Same 

Employer accomplishes the goals of 

WIOA with the least burden on the 

States. 

Regarding the comment that service 

delivery approaches taken by local 

workforce development boards and onestop staff to assist employers will skew 

the statistical adjustment model 

outcomes, the Departments disagree and 

note that the model does in fact account 

for results of these employer 

engagements. 

Effectiveness in serving employers is 

one of six indicators of performance 

under WIOA; it is the only shared 

indicator across core programs, and the 

only indicator that is not designed to 

measure job seeker outcomes. Local 

workforce development boards and onestop center staff delivering services 

solely focused on the effectiveness in 

serving employers indicator without 

regard to job seeker needs would be at 

risk of failing to meet other areas of 

program performance. The statistical 

adjustment model will account for 

economic factors affecting the Retention 

with the Same Employer indicator in 

the State and local areas. Therefore, the 

Departments have concluded that States 

will still focus on providing quality 

services to job seekers. 

Questions and Requests for 

Clarifications About Calculations, Data 

Sources, Wage Records, and External 

Factors That Impact the Measure 

Comments: Commenters suggested 

that the calculation for the Retention 

with the Same Employer measure be 

expanded to include supplemental wage 

information. One commenter asserted 

that by relying exclusively on wage 

records, the measure will produce an 

incomplete picture of the effectiveness 

of the WIOA system because it would 

obscure the ways WIOA programs serve 

employers by developing employees 

with the skills to respond flexibly and 

creatively to changing working 

challenges, whether for the same 

employer or a different one. 

Some commenters were concerned 

that local providers do not know the 

status of a participant’s employment at 

exit. A few commenters stated that 

workforce programs may not receive 

hiring outcome information and may be 

unable to report information for 

Wagner-Peyser Act participants. 

Another commenter asked how 

common exit would apply to this 

measure and which programs’ exit date 

will be used to determine this measure 

when an individual participant is coenrolled in more than one core partner 

program. 

One commenter recommended that 

the Departments explore methods of 

capturing data that demonstrate 

employment success for self-employed 

individuals and individuals employed 

by the Federal Government. Relatedly, 

another commenter recommended not 

limiting the performance indicator to 

individuals with wage records but 

rather expanding it to include 

participants whose employment can be 

verified by other means, specifically the 

same supplemental data sources as are 

permitted for the other primary 

performance indicators, such as 

information provided to case managers. 

Other commenters cautioned that wage 

records are not readily available for 

Federal, military, and self-employment, 

asserting that this would lead to 

negative performance results in States 

with high proportions of individuals 

seeking these types of employment or 

necessitate statistical adjustments. 

Similarly, another commenter 

questioned if Federal agencies would 

provide additional wage data sources on 

individuals employed by the military, 

Postal Service, or Federal Government. 

Some commenters discussed whether 

State Wage Interchange System (SWIS) 

data could be used to collect and report 

on the proposed measure, given that 

SWIS data show how many employees 

work across State lines, a figure that 

becomes increasingly important in the 

post-pandemic shift to remote work. 

Another commenter expressed concerns 

about being able to match employers 

consistently in wage data and noted that 

during the pilot period their concerns 

over the Retention with the Same 

Employer measure caused them to 

choose the Repeat Business Customer 

and Employer Penetration rates for 

reporting. The commenter noted that the 

approach had the lowest adoption rate 

(per the Joint WIOA Effectiveness in 

Serving Employers NPRM) of the three 

pilot measures, suggesting that other 

States may have shared the commenter’s 

concerns about choosing it. 

Departments’ Response: The 

Departments agree 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 revise 

§ 677.155(a)(1)(vi) and (c)(6) of this joint 

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. This 

change allows for the effectiveness in 

serving employers indicator to include 

the same data sources as the other 


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28The Departments issued joint guidance on June 

1, 2017, ‘‘Guidance on the use of Supplemental 

Wage Information to implement the Performance 

Accountability Requirements under the Workforce 

Innovation and Opportunity Act,’’ TEGL No. 26–16, 

OCTAE Program Memorandum 17–6, and RSA– 

TAC–17–04, that describes the Departments’ 

protocols on the use and reporting of supplemental 

wage information. 

WIOA employment-based primary 

indicators of performance, including 

supplemental wage information. The 

Departments also agree that core 

programs will be able to obtain wage 

data for performance reporting purposes 

through the SWIS Clearinghouse for 

those participants employed across 

State lines. 

Regarding the commenter’s 

observation that the fewest number of 

States selected Retention with the Same 

Employer measure for the pilot and the 

commenter’s interpretation that this 

lowest adoption rate indicates that 

States did not think it was a useful 

measure, the Departments did not 

inquire why States chose certain 

measures during the pilot period, and 

note 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 Departments note that 

Retention with the Same Employer was 

the easiest measure to implement based 

on it being calculated from existing 

PIRL elements. Therefore, it is plausible 

that fewer States chose to pilot this 

measure 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. The 

Departments cannot determine if this 

was the case, but it seems reasonable 

that this possibility could have led to 

the lower adoption rate for the 

Retention with the Same Employer 

measure. 

Measuring only WIOA-funded 

programs: Regarding the comments that 

stated measuring only WIOA core 

programs was not a reflection of the 

effectiveness of the workforce system’s 

services to employers, the performance 

indicator under WIOA is intended to 

measure the effectiveness of the WIOA 

core programs in serving employers. 

While States and organizations may 

provide services to employers through 

other programs, it is appropriate in this 

instance to limit the metric to those 

participants who have exited from 

WIOA-funded programs. 

Use of supplemental wage 

information: The Departments 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; States 

already have these records for other 

WIOA-required reporting purposes, 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 Departments 

acknowledge 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. WIOA’s regulations 

and implementing guidance authorize 

the use of supplemental wage 

information for the calculation of the 

median earnings indicator. See TEGL 

No. 26–16.28

To ensure that effectiveness in serving 

these additional employers is assessed, 

the Departments concur 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. 

Questions about program exit: 

Regarding commenters’ concern about 

local providers not knowing a 

participant’s employment status at 

program exit, the Departments note that 

States already report this information to 

the Departments. Additionally, the 

Departments understand that there are 

mechanisms in place that local 

providers use to track participants’ 

employment status after program exit. 

Local providers interested in monitoring 

their performance in this area may wish 

to leverage existing follow-up practices 

to identify if participants who have 

exited services are employed, and to 

work with cognizant State agencies to 

monitor their performance. 

Regarding the commenter’s question 

about common exit, the implementation 

of this definition for the effectiveness in 

serving employers performance 

indicator will not alter existing policy 

around common exit dates. The 

Departments will release future 

guidance regarding implementation of 

the common exit date for participants 

enrolled in multiple core programs. 

Comments: A commenter questioned 

how the proposed measure would apply 

to employees changing positions to 

subsidiaries of the same company, as 

well as how it would count individuals 

working part time in order to maintain 

Social Security eligibility, because the 

commenter interpreted the proposal as 

covering full-time employment only. 

Another commenter similarly asserted 

that when determining whether a 

participant is employed with the same 

employer in the second and fourth 

quarters after exit, the Departments 

should take into account all 

establishments and physical addresses 

of the employer, to ensure that 

employees who move locations are still 

counted as being employed by the same 

employer. 

Departments’ Response: The 

Departments clarify that employment is 

not required to be full-time. The 

determination whether someone is 

employed with the same employer will 

typically be based on an employer 

identification number, such as the 

Federal Employer Identification Number 

(FEIN) or tax ID found in the 

individual’s wage record. For the 

specific scenario raised by the 

commenter, a participant who is 

employed by the same employer in a 

different physical location would count 

positively in the numerator of the metric 

if the FEIN/tax ID is the same. The 

Departments acknowledge that if the 

FEIN/tax ID is different for a subsidiary 

of a given employer, the participant may 

not be captured as a positive outcome 

by using wage records alone and would 

require the collection of supplemental 

wage information to verify Retention 

with the Same Employer. 

Comments: One commenter 

recommended that individuals who 

maintained employment with a different 

employer but at a higher wage be 

included in the numerator in the 

calculation, as this indicates the success 

of the employee and the quality of 


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training from their initial employer. The 

commenter also recommended 

excluding from the Retention with the 

Same Employer performance measure 

participants who have changed 

employers but increased their wages 

between the second and fourth quarters 

after exit, because doing otherwise 

would disincentivize upward mobility. 

Another commenter recommended 

measuring retention within the same 

industry rather than with the same 

employer. 

Another commenter was concerned 

that retention of employees may vary 

based on ‘‘right-to-work’’ rules, working 

conditions, pay and benefits, production 

volumes, or any number of business 

factors that occur well after interaction 

with the workforce system. Commenters 

also voiced concerns that variations in 

economic conditions would impact 

States’ ability to meet targets for the 

effectiveness in serving employers 

indicator because of downturns in the 

local economy and specific industries 

that were in-demand and used by the 

system are suddenly experiencing 

layoffs. 

Departments’ Response: The 

Departments acknowledge the 

alternatives commenters presented. 

However, these alternatives do not 

reflect the effectiveness of services to 

the employer that originally hired the 

participant. Including individuals who 

moved from one employer to another 

and obtained a higher wage does not 

demonstrate success in serving the 

individual’s employer in the second 

quarter as that employer would need to 

repeat the process of recruitment and 

referrals and undertake the cost of 

hiring and training a new employee. 

Similarly, including individuals who 

are within the same industry in the 

second and fourth quarters after exit but 

not with the same employer, results in 

the same issue—the individual’s first 

employer needs to rehire and train a 

new employee. 

The Departments recognize that there 

are numerous factors in a participant’s 

ability and willingness to remain 

employed with the same employer, 

including those mentioned by the 

commenter, such as pay/benefits, work 

volumes, temporary jobs, industry and 

economic variations, and unexpected 

layoffs. Because of this, it is very likely 

a State’s suggested target from the 

statistical adjustment model will never 

be 100 percent, just like the other five 

indicators of performance. 

As noted earlier, there are a variety of 

ways in which States can seek to 

address these concerns 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. 

Regarding the comments on the 

effects of economic conditions, the 

Departments agree 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. The 

Departments acknowledge that different 

States experience different economic 

conditions. As noted above, the 

statistical adjustment model will 

account for economic factors impacting 

Retention with the Same Employer 

outcomes for WIOA core programs, so 

that no State is unfairly impacted by its 

economic conditions. 

Comments: A commenter 

recommended shortening the amount of 

time that the system tracks workers with 

the same employer or to simultaneously 

track job quality to mitigate the 

potential consequence that the proposed 

measure could trap workers in poorquality jobs or incentivize the WIOA 

system to push workers into any job 

instead of high-quality jobs. 

Another commenter recommended 

that the Departments consider labor 

market trends or other relevant 

information in a State or region when 

negotiating performance for individuals 

who leave a position for a higher wage 

or better benefits. Several commenters 

similarly recommended adjusting the 

performance indicator to count 

individuals who leave positions and 

achieve higher wages, better benefits, or 

better working conditions as successes. 

One commenter raised cautions ‘‘that 

[the Retention with the Same Employer 

measure] is subject to variation in 

industry and sector economic 

conditions, and that it may have a 

negative impact on sensitivity to 

industry sectors targeted by State and 

local workforce agencies.’’ Another 

commenter stated that the proposed 

measure could lead to employers 

‘‘cherry-picking’’ employees who they 

believe could lead to higher retention 

rates. The commenter suggested that to 

mitigate this potential effect, the 

Departments could require States to 

submit reports on the demographics of 

WIOA participants to ensure there are 

no negative changes by race, ethnicity, 

or gender among workers between 

reporting periods that do not correspond 

to similar changes in the local labor 

market. 

To avoid disincentivizing the use of 

WIOA funding for transitional jobs, a 

commenter recommended excluding 

such jobs from the performance 

indicator. The commenter cited studies 

showing that transitional job programs 

have significant positive impacts for 

workers, families, communities, and 

employers, such as reducing poverty 

rates substantially, particularly for Black 

and Hispanic workers. 

Another commenter recommended 

increasing access to and sharing of 

information between workforce 

partners, to enable agencies to track 

employer retention information, and 

developing best practices and a unified 

reporting structure among WIOA 

agencies. 

Departments’ Response: The 

Departments will not be shortening the 

amount of time for tracking participant 

outcomes in the Retention with the 

Same Employer metric. Determining 

whether an individual is still employed 

with the same employer in the second 

and fourth quarters after exit allows the 

Departments to assess whether the 

individual stayed with the employer, 

which leads to savings for the employer 

as the employer would not need to 

undergo the rehiring and retraining 

process. The second-and-fourth-quarter 

time frame allows the Departments to 

assess whether employers benefit from 

the WIOA system. Additionally, using 

information collected for other WIOA 

indicators of performance under the 

same established time frames reduces 

reporting burden for the States. 

Additionally, as discussed throughout 

this document, the Departments note 

that effectiveness in serving employers 

is oriented to the employer experience 

rather than the participant experience. 

The proposed metric may encourage 

promotional opportunities from within 

the original employer. 

For these reasons, the Departments 

believe the established time frames are 

appropriate to demonstrate Retention 

with the Same Employer. 

Regarding commenters’ concerns 

about labor market trends, including 

variations in industry and sector 

economic conditions, the Departments 

are aware of external factors that 

influence the outcome of this measure. 

The Departments will adjust for those 

external factors in the statistical 

adjustment model, and those 

adjustments will play a key role when 

the Departments determine they have 

sufficient data to produce reliable 

results for assessing performance of the 

effectiveness of serving employers 

indicator. 

The Departments appreciate 

comments regarding participants who 

leave positions for higher paying job 

opportunities. While this is a benefit to 


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participants and should be encouraged, 

this also leaves employers with the need 

to fill open vacancies. The Departments 

will continue to evaluate wage growth 

after exit and the statistical adjustment 

model will account for participants who 

leave a position for a higher-paying job. 

This metric, like all WIOA indicators of 

performance, will never be targeted at 

100 percent for this reason. 

The Departments considered the 

alternative definition of Retention with 

the Same Employer commenters 

suggested—including as a success the 

individuals who have higher wages in 

the fourth quarter after exit even though 

they are working at a different 

employer. However, the Departments 

decided not to adopt this definition 

because in these situations, an employer 

still has a need to fill an open vacancy. 

The Departments recognize that while 

this is a benefit to participants, it is not 

assessing how the workforce system 

served employers. Therefore, the 

Departments determined this is not an 

appropriate method of assessing the 

effectiveness in serving employers. 

Effectiveness in serving employers is 

measured after the participants exit a 

program. Regarding potential exclusion 

of participants placed in transitional 

jobs, the Departments note that 

transitional jobs are a participant level 

service that would prevent a participant 

from exiting, and therefore are not 

included in the calculation of the 

measure. Therefore, this definition of 

the indicator does not disincentivize use 

of transitional jobs as a service strategy. 

Regarding other potential exclusions 

for the measure, consistent with the 

Departments’ rationale in Section II.A. 

above, the Departments believe that 

simplicity in the measure calculation is 

important, both in terms of collecting 

data that reflect the real world of 

employment, and consistency with the 

other participant employment and 

earnings indicators of performance. 

Therefore, the measure calculation will 

not include exclusions other than those 

mentioned for existing WIOA indicators 

of performance. Additionally, the 

commenter mentioned benefits to the 

participant, but not to the employer who 

experiences turnover and needs to re-fill 

a position. The Retention with the Same 

Employer measure advocated for by 

business customers and employers in 

stakeholder engagements, alignment 

with the other WIOA participant 

employer performance measures/ 

indicators, and support due to strengths 

over weaknesses of the measures 

assessed in the Final Pilot Study Report 

can best meet the system’s goals for 

assessing and ensuring the effectiveness 

in servicing employers, the workforce 

system’s dual or equal customer served 

by the workforce system. 

Regarding analysis of this metric by 

race, ethnicity, or gender, the 

Departments currently collect these data 

elements and will report outcomes by 

each of these. The existing WIOA 

indicators of performance are already 

reported by these data elements in the 

Departments’ respective annual reports. 

After consideration of the comments, 

as discussed above the Departments 

have decided to revise the definition of 

Retention with the Same Employer in 

this final rule to remove reference to 

wage records, thereby permitting States 

to include individuals in the metric who 

may not have wage records but who are 

still employed with the same employer 

in the second and fourth quarters after 

exit. This revision allows States to use 

supplemental wage information to 

capture these individuals. 

Final § 677.155(a)(1)(vi) and (c)(6) 

implement the changes as outlined in 

the proposed rule with one modification 

to remove the term ‘‘wage records,’’ 

thereby allowing for the use of 

supplemental wage information, and 

adds a clarification that participants 

tracked by this performance measure are 

those in unsubsidized employment 

during the second quarter who exit from 

the program. While the nature of wage 

records would have limited this 

indicator to unsubsidized employment 

without explicitly stating the 

requirement, the removal of the wage 

record requirement, thereby enabling 

States to use supplemental wage 

information for reporting purposes, 

necessitates the addition of language 

limiting the indicator to those in 

unsubsidized employment in order to 

align this indicator with the other 

employment-based indicators, all of 

which track the percentage of 

participants in unsubsidized 

employment at either the second or 

fourth quarter after exiting from a 

program. In so doing, the Departments 

ensure that the employment reported, 

for purposes of assessing the 

effectiveness in serving employers, is 

that which is consistent with the 

purpose of WIOA sec. 2 (e.g., to increase 

the prosperity of workers and 

employers, the economic growth of 

communities, and the global 

competitiveness of the United States). 

C. Adjusted Levels of Performance for 

WIOA Core Programs—Changes to 

§ 677.190 

§ 677.190 When are sanctions applied 

for failure to achieve adjusted levels of 

performance? 

Currently, 20 CFR 677.190 details the 

circumstances under which sanctions 

are applied when WIOA core programs 

fail to achieve adjusted levels of 

performance. Paragraph (c) sets forth 

criteria the Departments use to 

determine which States have met 

adjusted levels of performance: (1) the 

overall State program score 

(§ 677.190(c)(1)); (2) the overall State 

indicator score (§ 677.190(c)(3)); and (3) 

the individual indicator score 

(§ 677.190(c)(5)). 

In this final rulemaking the 

Departments revise § 677.190 to include 

the effectiveness in serving employers 

performance indicator in the criteria for 

determining if a State has failed to meet 

adjusted levels of performance as part of 

the overall State indicator score. Final 

§ 677.190 establishes conforming 

language regarding the assessment of 

effectiveness in serving employers as a 

statewide performance indicator, as 

expressed in the Joint WIOA Final Rule, 

and the definition for effectiveness in 

serving employers proposed in 

§ 677.155(a)(1)(vi) and (c)(6). Final 

§ 677.190(c)(1) excludes the 

effectiveness in serving employers 

performance indicator from the 

calculation of an overall State program 

score, which compares a program’s 

results regarding the other primary 

indicators of performance with the 

adjusted levels of performance for that 

program. This final rulemaking adds 

two paragraphs to § 677.190(c)(3) to 

ensure the effectiveness in serving 

employers performance indicator’s sole 

use as a shared statewide indicator. 

Final § 677.190(c)(3)(i) specifies that the 

overall State indicator score is the 

average of the percentages achieved of 

the adjusted levels of performance by all 

the core programs on the performance 

indicator and would exclude the 

effectiveness in serving employers 

performance indicator from this 

calculation. Final § 677.190(c)(3)(ii) 

adopts in regulations the 

recommendation in the joint guidance 

that one core program report 

performance data for the effectiveness in 

serving employers performance 

indicator on behalf of all six core 

programs. Final § 677.190(c)(3)(ii) also 

establishes that the indicator would be 

assessed only as an overall State 

indicator score, the State indicator score 

for effectiveness in serving employers is 

calculated as the statewide percentage 


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Federal Register / Vol. 89, No. 37 / Friday, February 23, 2024 / Rules and Regulations 13831 

29ETA, ‘‘WIOA Technical Assistance Resources 

and Tools,’’ https://www.dol.gov/agencies/eta/ 

Performance/resources (last visited July 31, 2023). 

30S. 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%20

Measures%20of%20Effectiveness%20

in%20Serving%20Employers_Final%20Report.pdf. 

31ETA, ‘‘WIOA Plans, Waivers, & Performance,’’ 

https://www.dol.gov/agencies/eta/wioa/planswaivers-performance (last visited July 31, 2023). 

achieved of the statewide adjusted level 

of performance, and includes mention 

of guidance to signal to States that the 

Departments will provide additional 

details and explanations for reporting 

on the effectiveness in serving 

employers performance indicator in 

joint guidance. Final § 677.190(c)(5) 

specifies that the Departments will not 

include the effectiveness in serving 

employers performance indicator when 

calculating individual indicator scores. 

Finally, as the Joint WIOA Effectiveness 

in Serving Employers NPRM explained, 

consistent with how the Departments 

have implemented the provisions for the 

other five performance indicators, the 

effectiveness in serving employers 

performance indicator will not be 

included in sanctions determinations 

until the Departments collect a 

minimum of 2 years of performance 

data, develop a statistical adjustment 

model that yields reliable estimates for 

the indicator, provide additional 

guidance regarding the process for 

negotiating this joint indicator, and then 

negotiate performance levels for the 

indicator. 

The Departments received no 

comments on the proposed exclusion of 

effectiveness in serving employers from 

the overall State program score in 

§ 677.190(c)(1) and the proposed 

exclusion of effectiveness in serving 

employers when calculating individual 

indicator scores in § 677.190(c)(5). The 

Departments received several comments 

regarding provisions for the statewide 

nature of the effectiveness in serving 

employers performance indicator in 

§ 677.190(c)(3)(ii), application of this 

indicator at the local level, performance 

level negotiation and the statistical 

adjustment model, and inclusion of the 

effectiveness in serving employers 

indicator in sanctions determinations. 

These comments are discussed below. 

No changes are made to proposed 

§ 677.190; the final rule implements 

§ 677.190 as proposed. 

Support for the Implementation of a 

Shared Statewide Indicator 

Comments: Several commenters 

expressed support for the proposed use 

of a shared outcome for all core 

programs. One commenter stated that 

the shared outcome measure supports 

the WIOA reporting goal and also 

reduces the burden of collecting data. 

Departments’ Response: We 

appreciate commenters supporting 

effectiveness in serving employers as a 

shared outcome for all WIOA core 

partner programs. We agree that this 

definition best aligns with WIOA 

employment performance indicators by 

utilizing already existing PIRL elements 

and minimizes the burden on States and 

employers in measuring the 

effectiveness in serving employers. 

Comments: Several commenters 

opposed the provisions, urging that 

Retention with the Same Employer 

should not be a shared outcome and 

should be reported for each of the six 

core programs individually. A few of 

these commenters discussed the 

difficulties of reporting the measure as 

a shared outcome, particularly the 

specifics of creating and implementing 

a unified statistical adjustment model 

that accounts for program- and Statelevel differences. The commenters 

described the particular challenge and 

burden for States that did not pilot the 

proposed measure or do not currently 

have a shared data system across core 

programs. One commenter noted that 

the different performance indicators 

arise from different reporting systems, 

which further complicates the process 

of unifying the reporting into a shared 

outcome model. Another commenter 

described the issues of incorporating 

data from the separate systems for title 

II and title IV, incorporating other data 

from referrals placed by job seeker 

teams outside the State, and a lack of 

Social Security number collection by 

the State agency responsible for title II 

programs in the State. Other 

commenters noted that while many 

States are reporting this measure, not all 

do so with the coordination and full 

contribution of title II data, and asserted 

that some States’ title II programs that 

are not currently reporting this data on 

title II students will need additional 

time to update data match agreements 

and data reporting processes in order to 

participate in State reporting. One 

different commenter noted that the 

performance measure is not defined by 

statute as a shared system-wide measure 

and suggested that sharing confidential 

data across State programs may not be 

supported by State laws. The 

commenter further asserted that 

complying with the varied reporting 

deadlines for different programs might 

be difficult under a unified model. This 

commenter also expressed concern 

about the costs and time associated with 

developing a system that combines data 

across all programs. Further, the 

commenter said, to successfully capture 

data from multiple agencies, States that 

are not already doing so would need to 

establish a cross-agency data system or 

statewide longitudinal data system 

(SLDS), which may require costs for setup, storage, management, and 

maintenance. The commenter cited a 

recent evaluation that indicated that a 

comprehensive SLDS project would take 

3 years to establish and cost $1 million 

to $3 million for staffing and 

technology. 

Departments’ Response: The 

Departments recognize that there are 

challenges in coordinating the reporting 

of data across agencies, but also note 

that reporting this indicator as a shared 

measure supports closer alignment, 

increased coordination, and improved 

data sharing across State agencies, 

which are important parts of the vision 

and purpose of WIOA, and the 

Departments will work with States 

towards realizing this vision. In fact, the 

Departments’ guidance details the 

requirements set forth in WIOA, 

specifically that closer alignment, 

increased coordination, and improved 

data sharing across State agencies in 

reporting on the WIOA core 

performance indicators are an important 

part of the vision of WIOA. See TEGL 

No. 10–16, Change 1. Current and 

further resources to provide technical 

assistance and guidance,29 and 

community of practice tools 30 will be 

provided to support States in the 

collection of required performance data, 

as well as supplemental data, and 

development of State plans 31 to ensure 

accountability of service provision. 

Additionally, since this is an annual 

measure, with alignment of performance 

accountability reporting to consolidate 

reporting across WIOA core programs 

and alleviate variation in deadlines for 

common reporting, the Departments do 

not consider individual program 

reporting deadlines to be an issue. 

Finally, the Departments note that all 

reporting is due to the agencies on the 

same date so that there should not be 

issues with reporting deadline 

differences. 

The Departments note that there will 

be challenges in developing a statistical 

adjustment model for any definition of 

this measure and there is no reason to 

believe the development would be any 

less challenging if the Departments were 

to select an alternative definition for 

this indicator or to assess this indicator 

by program. 

States are not required to collect this 

information using an SLDS. States are 


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13832 Federal Register / Vol. 89, No. 37 / Friday, February 23, 2024 / Rules and Regulations 

not required to share confidential data 

across programs to report on this 

measure. However, the sharing of 

confidential data across programs is a 

permissible approach for reporting on 

the effectiveness in serving employers 

performance indicator, if the State does 

so in accordance with State and Federal 

law requirements. Performance 

accountability reporting across WIOA 

core programs will continue to be 

conducted in the current manner for all 

of the six primary WIOA core programs 

indicators of performance and measures, 

including collection and sharing of data 

as necessary to retain the integrity of the 

data collected for the Retention with the 

Same Employer effectiveness in serving 

employers performance indicator. 

With regard to concerns about 

reporting by title II programs for a 

single, statewide outcome for all WIOA 

core programs on the Retention with the 

Same Employer measure, the State’s 

title II program would be expected to 

provide the data it has collected for title 

II participants who were employed in 

the second and fourth quarters to the 

State agency responsible for reporting 

on the effectiveness in serving 

employers indicator. If the State’s title II 

program does not have access to the 

information required to determine 

Retention with the Same Employer 

through a data match, the State agency 

responsible for reporting on the 

indicator would use the data provided 

by the State’s title II program to 

determine Retention with the Same 

Employer. 

Comments: A few commenters 

recommended that this measure be 

reported and assessed just as the other 

five are reported and assessed: across 

programs and indicator scores. The 

commenter stated that if effectiveness in 

serving employers is measured only at 

the system level using a single target, as 

the Departments proposed, programs 

that achieved less than 90 percent of 

target on this one measure for 2 years in 

a row would be sanctioned. The 

commenter asserted that such a result 

would not be consistent with the 

Departments’ original intent of leveling 

sanctions in cases of ‘‘catastrophic 

failures on a single measure (<50% of 

target)’’ or ‘‘systemic performance issues 

in a program or in a measure across 

programs (average of <90% of target).’’ 

The commenter, expressing concern 

about the proposal resulting in programs 

facing significantly greater risk of 

sanction, thus recommended that the 

standard of 90 percent of target not be 

applied to the effectiveness in serving 

employers measure if it is treated as a 

shared outcome. 

Departments’ Response: The 

Departments agree that State 

performance falling below 90 percent of 

the adjusted level of performance on 

this measure for 2 consecutive years 

would be subject to sanctions. However, 

at a systemic level, this is no different 

than it is for any other primary indicator 

of performance where 2 consecutive 

years of averaging below 90 percent of 

the adjusted level of performance across 

programs for an indicator would be 

subject to sanctions. Since the 

Departments are assessing this indicator 

as a shared outcome across all programs 

in a State, the individual indicator score 

assessments do not apply. Therefore, 

performance failure where an individual 

indicator score falls below 50 percent 

does not apply. Additionally, because 

the statistical adjustment model will be 

used to establish the adjusted level of 

performance, the risks of failure due to 

low performance resulting from external 

factors will be mitigated. 

Comments: One commenter asserted 

measuring outcomes at the individual 

program and workforce area levels does 

not discourage statewide coordination 

and collaboration but rather provides for 

both accountability for poor 

performance and credit for performance 

success, which promotes coordination 

across programs and contributes to 

continuous improvement. 

Departments’ Response: The 

Departments acknowledge that 

coordination and collaboration are 

indeed occurring in many States. 

However, the comments received on the 

proposed rule as well as feedback 

during the pilot phase have underscored 

the need for increased collaboration and 

coordination and highlighted the 

partnership benefits that additional 

shared performance accountability 

incentives would yield. 

Comments: Several commenters 

stated that the effectiveness in serving 

employers performance indicator 

should not be applied at the local level 

and recommended restricting its 

application in that context. Commenters 

discussed the restriction on including 

the indicator in individual score 

calculations, asserting that States should 

not be allowed to set and evaluate local 

operator targets for the shared outcome 

indicator, to include effectiveness in 

serving employers as part of the 

calculation to determine the individual 

indicator scores for a local workforce 

area, or to assess these indicators to 

determine sanctions on local areas or 

local operators. The commenters 

expressed concern that sanctioned 

States might pass on ‘‘punishments’’ 

from the sanctions to local operators. 

Acknowledging that State performance 

necessarily aggregates the performance 

of individual local and State program 

operators, the commenters nevertheless 

asserted that local operators would bear 

too high a cost from the unintended 

consequences of performance failure if 

the measure is applied as proposed. 

Another commenter suggested that the 

indicator should only apply at the State 

level as local workforce development 

areas that have administrative oversight 

for non-core programs cannot rely on 

outcomes achieved by the title II 

program, Wagner-Peyser Act programs 

(title III), and VR program (title IV) to 

help achieve performance goals set for 

achieving the ‘‘more robustly defined’’ 

statewide performance target. The 

commenter requested further guidance 

to States on this point. 

Departments’ Response: WIOA sec. 

116(c)(1)(A)(i) requires that all of the 

primary indicators of performance, 

including the effectiveness in serving 

employers indicator, must be applied at 

the local level for the WIOA title I 

programs (Adult, Dislocated Worker, 

and Youth). Therefore, States must 

apply the effectiveness in serving 

employers indicator at the local level. 

Furthermore, § 677.205(a) provides that 

‘‘[e]ach local area in a State under 

WIOA title I is subject to the same 

primary indicators of performance for 

the core programs for WIOA title I under 

§ 677.155(a)(1) and (c) that apply to the 

State.’’ The Departments are not 

changing this provision in this 

rulemaking; therefore, the same 

definition and method of assessing 

performance applies at the local level. 

The Departments will provide updates 

to any guidance related to this as 

needed. 

Sanctions Determinations 

Comments: Several commenters 

supported the proposal to delay the 

inclusion of the effectiveness in serving 

employers indicator in sanctions 

determinations and suggested that the 

Departments should consider an even 

longer time period than proposed to 

collect the data. Commenters noted that 

not all States currently work with WIOA 

title I data and that extra time might be 

required to facilitate the data inclusion. 

Other commenters noted that this 

additional time would be particularly 

helpful in determining targets. One 

commenter suggested a specific 

extension of at least an additional year 

of data collection and reasoned that the 

additional time frame would allow 

States to implement the necessary 

methods of data collection, particularly 

if they did not pilot the proposed 

measure; learn from other States that 

have implemented the statewide 


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measure; and train personnel on 

implementing the data collection and 

sharing requirements. 

Departments’ Response: The 

Departments will implement this 

indicator similarly to how other 

indicators have been approached under 

WIOA. This will include providing 

technical assistance to States to ensure 

that they have the systems in place that 

are necessary to begin reporting on this 

indicator according to timelines that the 

Departments will establish and 

announce in guidance following the 

finalization of this rulemaking. 

The Departments note that sanctions 

only occur after 2 consecutive years of 

performance failures for the same score. 

Furthermore, the implementation of 

performance assessments requires a 

minimum of 2 years of data before the 

Departments would use a statistical 

adjustment model in the negotiations 

process, and any potential 

implementation of performance 

assessments would be conditional upon 

having sufficient data to produce an 

objective statistical adjustment model. 

The metric uses existing data collected 

in the PIRL; States have been required 

to collect this information since the 

inception of the jointly administered 

performance accountability system 

established in WIOA sec. 116. The 

Departments believe there is sufficient 

time built into the implementation 

process and are not extending the 

implementation time frame currently. 

Comments: One commenter 

questioned if an effectiveness in serving 

employers indicator dropped below a 

certain threshold could trigger a 

probation period for additional 

oversight by the Departments, possibly 

including sanctions as well. 

Departments’ Response: The 

Departments appreciate the 

commenter’s suggestion and note that 

the first year of failure to meet 90 

percent of a State’s adjusted level of 

performance on the effectiveness in 

serving employers indicator would 

trigger required technical assistance, 

including a corrective action plan, and 

the second consecutive year of failure in 

this same manner would result in a 

sanction against the Governor’s Reserve 

for statewide activities under the title I 

adult, dislocated worker, and youth 

formula programs under WIOA sec. 

116(f)(1)(B). The Departments reiterate 

that this indicator will be treated 

similarly to how other indicators have 

been approached under WIOA. 

Comments: Several commenters 

questioned whether the sanctions would 

be leveraged only against State set-aside 

title I allocations, expressing concern 

that the penalty would be inequitable if 

it impacted all six core programs. 

Departments’ Response: As is the case 

for each of the six primary indicators of 

performance, WIOA sec. 116(f)(1)(B) 

requires that the application of 

sanctions is against the Governor’s 

Reserve for statewide activities under 

the title I adult, dislocated worker, and 

youth formula programs. The 

Departments recognize the commenters’ 

concerns regarding funding and 

sanctions being tied to individual 

programs; however, WIOA sec. 

116(f)(1)(B) makes clear that the 

sanctions are imposed against the 

Governor’s Reserve for statewide 

activities under the title I adult, 

dislocated worker, and youth formula 

programs regardless of which of the six 

core programs’ performance constitutes 

a failure giving rise to the sanction. 

Therefore, given the explicit statutory 

requirement, the Departments do not 

have the authority to do as these 

commenters suggest. No change to the 

regulatory text was made in response to 

these comments. 

Statistical Adjustment Model 

Comments: Several commenters 

recommended ensuring that the 

statistical adjustment model accounts 

for fluctuations in employment rates 

caused by the seasonal and migrant 

workforces, particularly in the 

construction, agriculture, and 

hospitality sectors. Similarly, another 

commenter recommended that the 

statistical adjustment model incorporate 

factors such as self-employment, 

temporary employment, transitioning 

job seekers, and gig workers. The 

commenter further recommended that 

the Departments consider external 

factors that would cause measurement 

deviations, such as participants seeking 

immediate employment to avoid 

hardship, participants accepting a better 

job offer with sustainable wages or 

benefits, and participants seeking 

opportunities to upgrade their skills. 

One commenter stated that the 

proposed measure would require 

additional statistical adjustments, that it 

would be subject to variations based on 

sector and economic conditions, and 

that it would not reflect current 

workforce trends like increases in selfemployment. Another commenter 

expressed similar concerns about the 

measure’s ability to accurately capture 

effectiveness in serving employers given 

particular economic conditions and 

differences across industries. A third 

commenter likewise asserted that the 

indicator would be subject to fluctuating 

economic conditions. 

One commenter recommended that 

the Departments consider additional 

factors in the final rule, including: 

factors that can affect the median tenure 

of workers, which is lower for younger 

people; difficulty in accounting for 

differences among regions, such as areas 

with relatively greater or fewer 

employment opportunities; 

inconsistencies among reporting 

platforms; differences in tracking 

timelines and reporting requirements 

among workforce partners; and the 

possibility that employer retention rates 

can increase or decrease without 

changes in levels of employer services 

being provided. 

Departments’ Response: The 

Departments thank the commenters for 

these recommendations. The 

Departments acknowledge the 

commenters’ recommendations and note 

that the statistical adjustment model 

will address the commenters’ concerns. 

The Departments will conduct a 

thorough development process for the 

statistical adjustment model for this 

indicator, as has been and continues to 

be done in the development of the 

model for the other five primary 

indicators of performance. The 

Departments will provide updates to the 

appropriate performance guidance and 

technical assistance for reporting on this 

indicator. 

Request for Guidance 

Comments: Commenters requested 

that the Departments provide grantees 

with defined methods for gathering and 

reporting the relevant data to ensure 

that all programs collect and report the 

data consistently. Another commenter 

asked for guidance on how performance 

negotiations would be handled in States 

without centralized organization into 

one agency, specifically if the 

designated State workforce agency will 

complete the negotiations for this 

statewide measure in such cases. 

Another commenter noted that retention 

with employers during the second and 

fourth quarters after exit is reported on 

the RSA 911 and the PIRL and suggested 

that the Departments use State ETA 

9169 reports to collect the percentage of 

retention, a practice that it said would 

reduce any duplicate reporting. Another 

commenter asked multiple questions 

related to implementation of the 

Retention with the Same Employer 

measure, namely how it would affect 

the reporting requirements outlined in 

TEGL No. 10–16, Change 2, Attachment 

IV, Table B; what the impacts would be 

for the defined services to business 

since those measures would no longer 

be required to be reported; and how 


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13834 Federal Register / Vol. 89, No. 37 / Friday, February 23, 2024 / Rules and Regulations 

32The final rule would have an annualized cost 

of $38,607 and a total 10-year cost of $329,323 at 

a discount rate of 3 percent in 2022 dollars. 

33The final rule would have an annualized cost 

savings of $2.21 million and a total 10-year cost 

savings of $18.85 million at a discount rate of 3 

percent in 2022 dollars. 

34The final rule would have an annualized net 

cost savings of $2.17 million and a total 10-year cost 

of $18.52 million at a discount rate of 3 percent in 

2022 dollars. 

35Consistent with WIOA sec. 3(56) and 20 CFR 

677.150(d), the use of the term ‘‘States’’ in this RIA 

refers to the 50 States; the District of Columbia; 

Puerto Rico; and the outlying areas of American 

Samoa, Guam, the Commonwealth of the Northern 

Mariana Islands, and the U.S. Virgin Islands; and 

the Republic of Palau, a country in free association 

with the United States. See also footnote 8 supra. 

employer establishments would be 

reported. 

Departments’ Response: The 

Departments appreciate these comments 

and note that the Departments will 

provide detailed information on these 

requirements through ICRs, guidance, 

instructions, and technical assistance 

relating to definitions, data collection 

and reporting, negotiations, and local 

level application of this primary 

indicator of performance. 

The Departments made no changes to 

proposed § 677.190; the final rule 

implements § 677.190 as proposed. 

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 Enforcement 

Fairness Act of 1996 

Under Executive Order (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 section 3(f) of E.O. 12866 

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 (adjusted every 3 years 

by the Administrator of OIRA for 

changes in gross domestic product), 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); (2) create 

a serious inconsistency or otherwise 

interferes 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 and cost 

savings 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 quantified costs and 

cost savings and presents the 

calculations the Departments 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, cost 

savings, and net costs of the final rule. 

Finally, Section III.A.7 describes the 

regulatory alternatives considered when 

developing the final rule. 

2. Analysis Summary 

The Departments estimate that the 

final rule will result in costs and cost 

savings. As shown in Exhibit 2, the final 

rule is expected to have an annualized 

quantified cost of $44,208 and a total 

10-year quantifiable cost of $310,497 at 

a discount rate of 7 percent.32 The final 

rule is estimated to have annualized 

quantified cost savings of $2.30 million 

and total 10-year quantifiable cost 

savings of $16.13 million at a discount 

rate of 7 percent.33 The Departments 

estimate that the final rule will result in 

an annualized net quantified cost 

savings of $2.25 million and a total 10- 

year net cost of $15.82 million, both at 

a discount rate of 7 percent and 

expressed in 2022 dollars.34

EXHIBIT 2—ESTIMATED MONETIZED COSTS, COST SAVINGS, AND NET COST SAVINGS OF THE FINAL RULE

[2022 $millions] 

Costs Cost savings Net cost 

savings 

Undiscounted 10-Year Total ........................................................................................................ $0.35 $21.46 $21.11 

10-Year Total with a Discount Rate of 3% .................................................................................. 0.33 18.85 18.52 

10-Year Total with a Discount Rate of 7% .................................................................................. 0.31 16.13 15.82 

10-Year Average .......................................................................................................................... 0.03 2.15 2.11 

Annualized at a Discount Rate of 3% ......................................................................................... 0.04 2.21 2.17 

Annualized at a Discount Rate of 7% ......................................................................................... 0.04 2.30 2.25 

The cost of the final rule is associated 

with rule familiarization and the 

requirement to calculate and report 

Retention with the Same Employer for 

the effectiveness in serving employers 

performance indicator for 57 States and 

78 VR agencies.35 No longer requiring 

States to collect, calculate, and report 

for two alternative definitions of the 

effectiveness in serving employers 

performance indicator and instead 

requiring States to calculate and report 

only the Retention with the Same 

Employer definition of the indicator 

will contribute to the cost savings of the 

final rule. See the costs and cost savings 

subsections of Section III.A.5 (Subjectby-Subject Analysis) below for a 


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detailed explanation. To be clear, 

however, the Departments’ decision 

with respect to this final rule was not 

based on the cost savings but rather on 

the programmatic and data benefits 

described previously in Sections II.A 

and II.B above. 

The Departments cannot quantify the 

benefits of the final rule; therefore, 

Section III.A.5 (Subject-by-Subject 

Analysis) describes the benefits 

qualitatively. 

Comments that the Departments 

received regarding the RIA set forth in 

the proposed rule are summarized and 

responded to below. 

Comments: A commenter expressed 

concern about the costs and time 

associated with developing a system 

that combines data across all programs. 

Further, the commenter said, to 

successfully capture data from multiple 

agencies, States that are not already 

doing so would need to establish a 

cross-agency data system or SLDS, 

which may require costs for set-up, 

storage, management, and maintenance. 

The commenter cited a recent 

evaluation that indicated that a 

comprehensive SLDS project would take 

3 years to establish and cost $1 million 

to $3 million for staffing and 

technology. 

Departments’ Response: The 

Departments estimate the costs of the 

requirements of the final rule, which are 

to calculate and report the Retention 

with the Same Employer indicator. 

Those costs include the time for 

programming and reporting. Currently, 

States report on two of the three pilot 

measures for effectiveness in serving 

employers. Therefore, States are already 

reporting effectiveness in serving 

employers measures that include data 

across all core programs in the State. In 

other words, this is not a new approach 

for reporting data for this indicator and, 

thus, is familiar to States. The Retention 

with the Same Employer measure is not 

requiring the establishment of a crossagency data system. 

Comments: A commenter said that 

although using the proposed measure, 

Retention with the Same Employer, may 

require less administrative costs than 

the other piloted alternatives, meeting 

the performance goals would be difficult 

and thus negate the cost savings. 

Departments’ Response: Retention 

with the Same Employer supports 

meeting performance goals as it is a 

valid measure of WIOA’s core programs’ 

effectiveness in serving employers with 

lesser administrative costs. As discussed 

in the qualitative benefits section of the 

RIA, Retention with the Same Employer 

demonstrates a continued relationship 

between the employer and participants 

who have exited WIOA core 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 (see also the 

Departments’ Responses to comments in 

Section II.B). In terms of meeting the 

performance goals, the Departments 

disagree that meeting the target for this 

measure will be more difficult 

compared to the other piloted 

alternatives. As would be true for all the 

piloted measures and like the other 

primary indicators of performance, the 

statistical adjustment model will adjust 

based on actual values from the States, 

and therefore the Departments do not 

believe this definition of the indicator 

will be more difficult to achieve success 

than any of the other indicators. 

3. Need for Regulation 

In the Joint WIOA Final Rule, the 

Departments described a phased 

approach, which included a pilot study, 

to defining in regulation the sixth 

statutory performance indicator— 

effectiveness in serving employers— 

required by WIOA. This final 

rulemaking is necessary to complete 

implementation of the performance 

accountability requirements as 

discussed in the Joint WIOA Final Rule 

and required by statute. Specifically, 

States, under the Departments’ joint 

guidance, piloted the following 

definitions for the effectiveness in 

serving employers performance 

indicator: 

• Retention with the Same Employer: 

Percentage of participants with wage 

records who exit from WIOA core 

programs and were employed by the 

same employer in the second and fourth 

quarters after exit. 

• Repeat Business Customer: 

Percentage of employers who have used 

WIOA core program services more than 

once during the last three reporting 

periods. 

• Employer Penetration: Percentage of 

employers using WIOA core program 

services out of all employers in the 

State. 

The Departments are establishing 

Retention with the Same Employer as 

the standard definition of the 

effectiveness in serving employers 

performance indicator to complete 

implementation of the WIOA 

performance accountability 

requirements to assess the effectiveness 

of States and local areas in achieving 

positive outcomes. 

4. Analysis Considerations 

a. WIOA Core Programs 

The Departments estimated the costs 

and cost savings of the final rule relative 

to the existing baseline (i.e., the current 

practices for complying with the joint 

WIOA performance accountability 

regulations and the Departments’ joint 

guidance). WIOA sec. 116 establishes 

the requirement for performance 

indicators and performance reporting 

requirements to assess the effectiveness 

of the WIOA core programs enumerated 

in WIOA sec. 116(b)(3)(A)(ii) in serving 

employers. The core programs include 

adult, dislocated worker, and youth 

programs under title I of WIOA; the 

AEFLA program under title II; programs 

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. The analysis refers to the 

WIOA title I and Wagner-Peyser Act 

programs jointly as the DOL programs. 

The baseline consists of the 

combination of piloted approaches for 

effectiveness in serving employers that 

States collected in 2021 and would be 

expected to continue to report in the 

absence of this final rule. The baseline 

uses DOL historical data on the number 

of States that report each combination of 

the three piloted approaches for the 

effectiveness in serving employers 

performance indicator. Exhibit 3 

displays DOL data from 2017 through 

2021 on the existing effectiveness in 

serving employers approach 

combinations. The Departments used 

the most recent year of State data 

reported for PY 2021 to define the 

existing baseline of States reporting 

combinations of approaches to the 

effectiveness in serving employers 

performance indicator. 


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13836 Federal Register / Vol. 89, No. 37 / Friday, February 23, 2024 / Rules and Regulations 

36Local AEFLA providers include local 

educational agencies; community-based 

organizations; faith-based organizations; libraries; 

community, junior, and technical colleges; 4-year 

colleges and universities; correctional institutions; 

and other agencies and institutions. 

37BLS, ‘‘May 2022 National Industry-Specific 

Occupational Employment and Wage Estimates: 

NAICS 999200—State Government, excluding 

schools and hospitals (OEWS Designation),’’ 

https://www.bls.gov/oes/current/naics4_

999200.htm (last updated April 25, 2023). 

38BLS, ‘‘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). 

39Office of Personnel Management, ‘‘Salary Table 

2022,’’ https://www.opm.gov/policy-data-oversight/ 

pay-leave/salaries-wages/salary-tables/pdf/2022/ 

GS_h.pdf (last visited Aug. 29, 2023). 

40Cody Rice, U.S. Environmental Protection 

Agency, ‘‘Wage Rates for Economic Analyses of the 

Toxics Release Inventory Program,’’ June 10, 2002, 

https://www.regulations.gov/document?D=EPA-HQOPPT-2014-0650-0005. 

41BLS, ‘‘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. 

42 DOL, ‘‘Workforce Innovation and Opportunity 

Act (WIOA) Common Performance Reporting’’ OMB 

Control No. 1205–0526, https://www.reginfo.gov/ 

public/do/PRAViewICR?ref_nbr=202012-1205-003 

(last visited Aug. 29, 2023). 

43The hourly compensation rates presented in 

Exhibit 5a, Exhibit 5b, and Exhibit 5c are rounded. 

Calculations used throughout the RIA use the 

unrounded value. Therefore, numbers may not sum 

due to rounding for the convenience of the reader. 

EXHIBIT 3—STATE REPORTING COMBINATIONS OF EFFECTIVENESS IN SERVING EMPLOYERS DEFINITIONS

Retention with 

the same 

employer + 

employer 

penetration 

Retention with 

the same 

employer + 

repeat 

business 

customer 

Repeat 

business 

customer + 

employer 

penetration 

All three 

effectiveness 

in serving 

employers 

approaches 

Total states 

reporting 

2017 ..................................................................................... 12 5 17 10 44 

2018 ..................................................................................... 10 10 17 15 52 

2019 ..................................................................................... 9 11 18 14 52 

2020 ..................................................................................... 9 12 20 15 56 

2021 ..................................................................................... 10 9 22 16 57 

In accordance with the RIA guidance 

articulated in OMB’s Circular A–4 and 

consistent with the Departments’ 

practices in previous rulemakings, this 

RIA focuses on the likely consequences 

of the final rule (i.e., costs and cost 

savings that accrue to entities affected). 

The analysis covers 10 years (from 2024 

through 2033) to ensure it captures 

major costs and cost savings that accrue 

over time. The Departments express all 

quantifiable impacts in 2022 dollars and 

use discount rates of 3 and 7 percent, 

pursuant to OMB Circular A–4. 

Exhibit 4 presents the number of 

entities that are expected to be affected 

by the final rule. The Departments 

provide these estimates and use them 

throughout this analysis to estimate the 

costs and cost savings of the final rule. 

EXHIBIT 4—WIOA CORE PROGRAMS— 

NUMBER OF AFFECTED ENTITIES BY

TYPE

Entity type Number 

DOL Programs: 

States ............................ 57 

Local Workforce Development Boards 

(WDBs) ...................... 580 

AEFLA Program: 

States ............................ 57 

Local AEFLA providers 36 ...................... 1,719 

VR Program: 

VR agencies .................. 78 

b. Compensation Rates 

In Section III.A.5 (Subject-by-Subject 

Analysis), the Departments present the 

costs, including labor, associated with 

the implementation of the provisions of 

the final rule. Exhibits 5a through 5c 

present the hourly compensation rates 

for the occupational categories expected 

to experience a change in level of effort 

(workload) due to the final rule. We 

used the BLS mean hourly wage rate for 

State and local employees.37 38 We also 

used the wage rate from the Office of 

Personnel Management’s Salary Table 

for the 2022 General Schedule for 

Federal employees in the management 

analyst occupation (Grade 14, Step 5).39

To reflect total compensation, wage 

rates include nonwage factors, such as 

overhead and fringe benefits (e.g., health 

and retirement benefits). For all labor 

groups (i.e., local, State, and Federal 

governments), we used an overhead rate 

of 17 percent.40 For the State and local 

sectors, we used a fringe benefits rate of 

62 percent, which represents the ratio of 

average total compensation to average 

wages for State and local government 

workers in March 2022.41 For the 

Federal Government, we used a fringe 

benefits rate of 63 percent.42 We then 

multiplied the sum of the loaded wage 

factor and overhead rate by the 

corresponding occupational category 

wage rate to calculate an hourly 

compensation rate.43

EXHIBIT 5a—COMPENSATION RATES FOR LOCAL EMPLOYEES

[2022$] 

Position Grade 

level 

Base hourly 

wage rate Loaded wage factor Overhead costs 

Hourly 

compensation 

rate 

(a) (b) (c) d = a + b + c 

Management Analyst ................................... N/A $43.61 $27.04 ($43.61 × 0.62) $7.41 ($43.61 × 0.17) $78.06 

Database Administrator ............................... N/A $49.01 $30.39 ($49.01 × 0.62) $8.33 ($49.01 × 0.17) $87.73 


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Federal Register / Vol. 89, No. 37 / Friday, February 23, 2024 / Rules and Regulations 13837 

44Numbers may not sum due to rounding for the 

convenience of the reader. 

45Numbers may not sum due to rounding for the 

convenience of the reader. 

EXHIBIT 5b—COMPENSATION RATES FOR STATE EMPLOYEES

[2022$] 

Position Grade 

level 

Base hourly 

wage rate Loaded wage factor Overhead costs 

Hourly 

compensation 

rate 

(a) (b) (c) d = a + b + c 

Management Analyst ................................... N/A $35.31 $21.89 ($35.31 × 0.62) $6.00 ($35.31 × 0.17) $63.20 

Staff Trainer ................................................. N/A $39.31 $24.37 ($39.31 × 0.62) $6.68 ($39.31 × 0.17) $70.36 

Rehabilitation Counselor .............................. N/A $27.31 $16.93 ($27.31 × 0.62) $4.64 ($27.31 × 0.17) $48.88 

EXHIBIT 5c—COMPENSATION RATES FOR FEDERAL EMPLOYEES

[2022$] 

Position Grade 

level 

Base hourly 

wage rate Loaded wage factor Overhead costs 

Hourly 

compensation 

rate 

(a) (b) (c) d = a + b + c 

Management Analyst ................................... GS–14, 

Step 5 

$52.12 $32.84 ($52.12 × 0.63) $8.86 ($52.12 × 0.17) $93.82 

5. Subject-by-Subject Analysis 

The Departments’ analysis below 

covers the estimated costs and cost 

savings of the final rule. 

c. Costs 

The following sections describe the 

costs of the final rule.44

(1) WIOA Core Programs Rule 

Familiarization 

State- and local-level DOL programs, 

State- and local-level AEFLA programs, 

and State VR agencies will need to 

familiarize themselves with the new 

regulations. Consequently, this will 

impose a one-time cost in the first year. 

To estimate the first-year cost of rule 

familiarization at the State level, the 

Departments 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 ($63.20/hour). 

We multiplied this result by the sum of 

the number of States (57) for the DOL 

programs, the number of States (57) for 

the AEFLA programs, and the number of 

VR agencies (78). This calculation yields 

$12,135 in one-time labor costs, which 

is equal to an average annual cost of 

$1,214 over the 10-year analysis period. 

At the local level for the DOL 

programs, the Departments multiplied 

the estimated number of management 

analysts (1) by the time required to read 

and review the rule (1 hour), by the 

applicable hourly compensation rate 

($78.06/hour), and by the number of 

local WDBs (580). This calculation 

yields $45,276 in one-time labor costs, 

which is equal to an average annual cost 

of $4,528 over the 10-year analysis 

period.45

At the local level for the AEFLA 

programs, the Departments multiplied 

the estimated number of management 

analysts (1) by the time required to read 

and review the rule (1 hour), by the 

applicable hourly compensation rate 

($78.06/hour), and by the number of 

local AEFLA providers (1,719). This 

calculation yields $134,188 in one-time 

labor costs, which is equal to an average 

annual cost of $13,419 over the 10-year 

analysis period. 

The sum of these costs yields a total 

one-time labor cost of $191,600 for 

State- and local-level DOL programs, 

State- and local-level AEFLA programs, 

and State VR agencies to read and 

review the new rule. Over the 10-year 

period of analysis, these estimated onetime costs result in an average annual 

cost of $19,160 undiscounted, or 

$22,461 and $27,279 at discount rates of 

3 and 7 percent, respectively. Exhibit 6 

summarizes the above calculations. 

EXHIBIT 6—WIOA CORE PROGRAMS, RULE FAMILIARIZATION ONE TIME COST

Agency Management 

analyst hours 

Number of 

management 

analysts 

Loaded wage 

rate Population 1 Total 2

State-level DOL .................................................................... 1 1 $63.20 57 $3,602 

Local-level DOL ................................................................... 1 1 78.06 580 45,276 

State-level AEFLA ................................................................ 1 1 63.20 57 3,602 

Local-level AEFLA ............................................................... 1 1 78.06 1,719 134,188 

State-level VR ...................................................................... 1 1 63.20 78 4,930 

Total Initial Cost ............................................................ ........................ ........................ ........................ ........................ 191,600 

1Population figures represent States (57) and VR agencies (78). 

2 Numbers may not sum due to rounding for the convenience of the reader. 


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13838 Federal Register / Vol. 89, No. 37 / Friday, February 23, 2024 / Rules and Regulations 

46Thirty-five States report Retention with the 

Same Employer according to DOL data. DOL 

collects data on 52 of 57 States defined in this 

analysis. DOL assumes the remaining 5 States 

report the cheapest combination of pilot approaches 

(Retention with the Same Employer + Employer 

Penetration), resulting in the RIA assuming 40 

States report Retention with the Same Employer. 

47Numbers may not sum due to rounding for the 

convenience of the reader. 

(2) Calculating and Reporting Retention 

With the Same Employer 

WIOA sec. 116(b)(2)(A)(i)(VI) 

provides that the sixth primary 

indicator of performance will be an 

indicator that measures program 

effectiveness in serving employers, 

which WIOA sec. 116(b)(2)(A)(iv) 

directs the Departments to establish. 

Currently, under the Departments’ joint 

guidance, States must report at least two 

of the following three approaches to 

measuring effectiveness in serving 

employers: Retention with the Same 

Employer, Employer Penetration, and 

Repeat Business Customer. All States 

will be required to adopt the same 

approach to measure effectiveness in 

serving employers: Retention with the 

Same Employer. Seventeen States do 

not currently report the Retention with 

the Same Employer approach to the 

effectiveness in serving employers 

performance indicator.46 These 17 

States will have new costs associated 

with setting up procedures to calculate 

and report Retention with the Same 

Employer and annual costs associated 

with continuing to calculate and report 

Retention with the Same Employer. To 

estimate the cost of establishing 

Retention with the Same Employer as 

the effectiveness in serving employers 

performance indicator, the Departments 

followed the assumptions used to 

estimate the pilot cost of the Retention 

with the Same Employer approach to 

effectiveness in serving employers in 

the 2016 Joint WIOA Final Rule. 

However, we updated those 

assumptions for this analysis by 

removing the cost of collecting data (4 

hours) because all States are already 

collecting the required data in the 

baseline. We then increased the number 

of hours we assume State-level DOL 

programs require for one-time costs of 

programming (from 4 to 6 hours) based 

on the Departments’ experience with 

initial costs for programming following 

the Joint WIOA Final Rule. The 

assumptions and costs are summarized 

as follows: 

At the Federal level for the DOL core 

programs, the Departments estimate the 

one-time labor cost associated with 

calculating and reporting Retention with 

the Same Employer by multiplying the 

estimated number of GS–14, Step 5 

management analysts (one) by the time 

required for technical assistance 

development (8 hours) and by the 

hourly compensation rate ($93.82/hour). 

This calculation results in a one-time 

labor cost of $751. 

The Departments estimated DOL’s 

annual labor costs for calculating and 

reporting Retention with the Same 

Employer by multiplying the estimated 

number of GS–14, Step 5 management 

analysts (one) by the time required for 

technical assistance delivery (4 hours) 

and by the hourly compensation rate 

($93.82/hour). This calculation results 

in an annual labor cost of $375. 

At the State level for the DOL core 

programs, the Departments estimated 

the one-time labor cost associated with 

calculating and reporting Retention with 

the Same Employer by multiplying the 

estimated number of management 

analysts (one) by the time required for 

programming (6 hours) and by the 

hourly compensation rate ($63.20/hour). 

We multiplied the labor cost ($379) by 

the number of States (57) to estimate 

this one-time cost at $21,616. 

The Departments estimated the Statelevel DOL core programs’ annual labor 

cost associated with calculating and 

reporting Retention with the Same 

Employer by multiplying the estimated 

number of management analysts (one) 

by the time required for Federal 

reporting (4 hours) and by the hourly 

compensation rate ($63.20/hour). We 

multiplied the labor cost ($253) by the 

number of States (57) to estimate this 

annual cost at $14,411. 

At the Federal level for the AEFLA 

program, the Departments estimated the 

one-time labor cost associated with 

calculating and reporting Retention with 

the Same Employer by multiplying the 

estimated number of GS–14, Step 5 

management analysts (one) by the time 

required for technical assistance 

development (8 hours) and by the 

hourly compensation rate ($93.82/hour). 

This calculation results in a one-time 

labor cost of $751. 

The Departments estimated AEFLA’s 

annual labor cost for calculating and 

reporting Retention with the Same 

Employer at the Federal level by 

multiplying the estimated number of 

GS–14, Step 5 management analysts 

(one) by the time required for technical 

assistance delivery (4 hours) and by the 

hourly compensation rate ($93.82/hour). 

This calculation results in an annual 

labor cost of $375. 

At the State level for the AEFLA 

program, the Departments estimated the 

one-time labor cost associated with 

calculating and reporting Retention with 

the Same Employer by multiplying the 

estimated number of management 

analysts (one) by the time required for 

programming and data collection (6 

hours) and by the hourly compensation 

rate ($63.20). We multiplied the labor 

cost ($379) by the number of States (57) 

to estimate this one-time cost at 

$21,616.47

The Departments estimated the Statelevel AEFLA program’s annual labor 

cost associated with calculating and 

reporting Retention with the Same 

Employer by multiplying the estimated 

number of management analysts (one) 

by the time required for Federal 

reporting (4 hours) and by the hourly 

compensation rate ($63.20/hour). We 

multiplied the labor cost ($53) by the 

number of States (57) to estimate this 

annual cost at $14,411. 

At the Federal level for the VR 

program, the Departments estimated the 

one-time labor cost associated with 

calculating and reporting Retention with 

the Same Employer by multiplying the 

estimated number of GS–14, Step 5 

management analysts (one) by the time 

required for technical assistance 

development (8 hours) and by the 

hourly compensation rate ($93.82/hour). 

This calculation results in a one-time 

labor cost of $751. 

The Departments estimated the 

annual labor costs associated with 

calculating and reporting Retention with 

the Same Employer at the Federal level 

for the VR program by multiplying the 

estimated number of GS–14, Step 5 

management analysts (one) by the time 

required for technical assistance 

delivery (4 hours) and by the hourly 

compensation rate ($93.82/hour). This 

calculation results in an annual labor 

cost of $375. 

At the State level for the VR program, 

the Departments estimated the one-time 

labor cost associated with calculating 

and reporting Retention with the Same 

Employer by multiplying the estimated 

number of management analysts (one) 

by the time required for programming (6 

hours) and by the hourly compensation 

rate ($63.20/hour). We multiplied the 

labor cost ($379) by the number of VR 

agencies (78) to estimate this one-time 

cost at $29,580. 

The Departments estimated the Statelevel VR program’s annual labor cost 

associated with calculating and 

reporting Retention with the Same 

Employer by multiplying the estimated 

number of management analysts (one) 

by the time required for Federal 

reporting (4 hours) and by the hourly 

compensation rate ($63.20/hour). We 

multiplied the labor cost ($253) by the 

number of VR agencies (78) to estimate 

this annual cost of $19,720. 


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Federal Register / Vol. 89, No. 37 / Friday, February 23, 2024 / Rules and Regulations 13839 

The sum of these one-time costs of the 

retention measure yields $75,064 for 

individuals from the Federal- and Statelevel DOL core programs, AEFLA 

program, and VR program. In addition, 

the sum of the annual costs associated 

with calculating and reporting Retention 

with the Same Employer for these 

entities yields $49,667 per year. Exhibits 

7a and 7b summarize the above 

calculations. 

EXHIBIT 7a—RETENTION WITH THE SAME EMPLOYER, INITIAL COST

Agency 

Management 

analyst 

hours 1

Number of 

management 

analysts 

Loaded wage 

rate Population 2 Total 3

Federal-level DOL ................................................................ 8 1 $93.82 NA $751 

State-level DOL .................................................................... 6 1 63.20 57 21,616 

Federal-level AEFLA ............................................................ 8 1 93.82 NA 751 

State-level AEFLA ................................................................ 6 1 63.20 57 21,616 

Federal-level VR .................................................................. 8 1 93.82 NA 751 

State-level VR ...................................................................... 6 1 63.20 78 29,580 

Total Initial Cost ............................................................ ........................ ........................ ........................ ........................ 75,064 

1 Management analysts on the Federal level are GS–14, Step 5. 

2Population figures represent States (57) and VR agencies (78). 

3 Numbers may not sum due to rounding for the convenience of the reader. 

EXHIBIT 7b—RETENTION WITH THE SAME EMPLOYER, ANNUAL COST

Agency 

Management 

analyst 

hours 1

Number of 

management 

analysts 

Loaded wage 

rate Population 2 Total 3

Federal-level DOL ................................................................ 4 1 $93.82 NA $375 

State-level DOL .................................................................... 4 1 63.20 57 14,411 

Federal-level AEFLA ............................................................ 4 1 93.82 NA 375 

State-level AEFLA ................................................................ 4 1 63.20 57 14,411 

Federal-level VR .................................................................. 4 1 93.82 NA 375 

State-level VR ...................................................................... 4 1 63.20 78 19,720 

Total Annual Cost ......................................................... ........................ ........................ ........................ ........................ 49,667 

1 Management analysts on the Federal level are GS–14, Step 5. 

2Population figures represent States (57) and VR agencies (78). 

3 Numbers may not sum due to rounding for the convenience of the reader. 

The costs in Exhibits 7a and 7b 

represent the costs for all 57 States to 

report the Retention with the Same 

Employer approach to the effectiveness 

in serving employers performance 

indicator. Currently, 40 States already 

report Retention with the Same 

Employer. The remaining 17 States will 

face costs with having to start reporting 

Retention with the Same Employer. We 

therefore multiply the total one-time 

costs ($75,064) and annual costs 

($49,667) by the 29.8 percent of States 

not currently reporting the retention 

measure (17 out of 57) yielding $22,387 

in one-time costs and an additional 

$14,813 in annual costs to increase the 

number of States reporting the retention 

measure from 40 to all 57. 

The estimated total cost from 

requiring all States to report Retention 

with the Same Employer over the 10- 

year period is $155,704 undiscounted, 

or $137,723 and $118,898 at discount 

rates of 3 and 7 percent, respectively, 

with an annualized cost over the 10-year 

period of $16,145 and $16,928 at 

discount rates of 3 and 7 percent, 

respectively. 

d. Cost Savings 

The following sections describe the 

cost savings of the final rule. 

(1) Summary of Approach 

The pilot program announced in the 

2016 Joint WIOA Final Rule required 

States to report two of the three 

approaches for measuring effectiveness 

in serving employers. Under this final 

rule States will no longer face costs 

associated with collecting the 

information required to calculate the 

Employer Penetration or Repeat 

Business Customer approaches to the 

effectiveness in serving employers 

performance indicator. To estimate the 

cost savings, we first update the costs 

associated with collecting each of these 

pilot approaches following the 

assumptions used to estimate the cost of 

the Retention with the Same Employer 

pilot approach in the 2016 Joint WIOA 

Final Rule. We then estimate the cost 

savings under the final rule associated 

with the proportion of States that will 

no longer report the various 

combinations of the pilot approaches 

that States report in the baseline. 

Currently, 15 States report Retention 

with the Same Employer and Employer 

Penetration, 9 States report Retention 

with the Same Employer and Repeat 

Business Customer, 22 States report 

Employer Penetration and Repeat 

Business Customer, and 16 States report 

all 3 approaches to defining the 

effectiveness in serving employers 

performance indicator. To estimate cost 

savings, we first estimate the annual 

cost of all 57 States collecting data for, 

calculating, and reporting the 

percentage of employers using services 

out of all employers in the State 

(Employer Penetration) and the 

percentage of repeat employers using 

services within the previous 3 years 

(Repeat Business Customer). We then 

multiply the annual cost by the 

percentage of States currently using the 

pilot approach to estimate the cost 

savings. Below, we present the updated 

costs associated with all 57 States 

reporting each pilot approach, and then 

present the cost savings associated with 

the proportion of States no longer 

reporting them. 


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48Numbers may not sum due to rounding for the 

convenience of the reader. 

(2) Employer Penetration: Percentage of 

Employers Using Services Out of All 

Employers in the State 

Under the pilot program, States must 

use two of three specified approaches to 

measure effectiveness in serving 

employers. The final rule will only 

require States to collect data for, 

calculate, and report the first approach 

(Retention with the Same Employer). 

This section calculates the cost for all 57 

States to collect data, calculate, and 

report Employer Penetration and then 

uses these costs to estimate cost savings 

for the proportion of States that will no 

longer report Employer Penetration 

under the final rule. 

At the Federal level for the DOL core 

programs, the Departments estimated 

the annual labor cost associated with 

Employer Penetration by multiplying 

the estimated number of GS–14, Step 5 

management analysts (one) by the time 

required for technical assistance 

delivery (4 hours) and by the hourly 

compensation rate ($93.82/hour). This 

calculation results in an annual labor 

cost of $375. 

At the State level for the DOL core 

programs, the Departments estimated 

Employer Penetration’s annual labor 

cost by multiplying the estimated 

number of management analysts (one) 

by the sum of time required for data 

collection (4 hours), providing training 

and technical assistance to Local WDBs 

(3 hours), and Federal reporting (4 

hours) and by the hourly compensation 

rate ($63.20/hour). We multiplied the 

labor cost ($695) by the number of 

States (57) to estimate this annual cost 

at $39,629. 

For local-level DOL core programs, 

the Departments estimated the annual 

labor cost for Employer Penetration by 

multiplying the estimated number of 

management analysts (one) by the time 

required for data collection (4 hours) 

and by the hourly compensation rate 

($78.06/hour). We multiplied the labor 

cost ($312) by the number of Local 

WDBs (580) to estimate this annual cost 

at $181,104. 

At the Federal level for the AEFLA 

program, the Departments estimated the 

annual labor cost associated with 

Employer Penetration by multiplying 

the estimated number of GS–14, Step 5 

management analysts (one) by the time 

required for technical assistance 

delivery (4 hours) and by the hourly 

compensation rate ($93.82/hour). This 

calculation results in an annual labor 

cost of $375. 

At the State level for the AEFLA 

program, the Departments estimated 

Employer Penetration’s annual labor 

cost by multiplying the estimated 

number of management analysts (one) 

by the sum of time required for data 

collection (4 hours), providing training 

and technical assistance to local AEFLA 

providers (3 hours), and Federal 

reporting (4 hours) and by the hourly 

compensation rate ($63.20/hour). We 

multiplied the labor cost ($695) by the 

number of States (57) to estimate this 

annual cost at $39,629. 

For the local-level AEFLA program, 

the Departments estimated the annual 

labor cost for Employer Penetration by 

multiplying the estimated number of 

management analysts (one) by the time 

required for data collection (4 hours) 

and by the hourly compensation rate 

($78.06/hour). We multiplied the labor 

cost ($312) by the number of local 

AEFLA providers (1,719) to estimate 

this annual cost at $536,754.48

At the Federal level for the VR 

program, the Departments estimated the 

annual labor cost associated with 

Employer Penetration by multiplying 

the estimated number of GS–14, Step 5 

management analysts (one) by the time 

required for technical assistance 

delivery (4 hours) and by the hourly 

compensation rate ($93.82/hour). This 

calculation results in an annual labor 

cost of $375. 

At the State level for the VR program, 

the Departments estimated Employer 

Penetration’s annual labor cost by 

multiplying the estimated number of 

management analysts (one) by the time 

required for Federal reporting (4 hours) 

and by the hourly compensation rate 

($63.20/hour). In addition, we added the 

estimated number of rehabilitation 

counselors (62 assistants) by the time 

required for data collection (1 hour 

each) and by the hourly compensation 

rate ($48.88/hour). We summed the 

labor cost for both categories and 

multiplied it ($3,284) by the number of 

VR agencies (78) to estimate this annual 

cost at $256,127. 

Summing these annual costs for all 57 

States to calculate and report Employer 

Penetration yields $1,054,369 per year 

for the Federal-, State-, and local-level 

DOL core programs and AEFLA 

programs and the State-level VR 

programs. The Departments used the 

updated costs in Exhibit 8 to estimate 

the cost savings for States that will no 

longer report this pilot approach. 

EXHIBIT 8—EMPLOYER PENETRATION, ANNUAL

Agency Labor category 1 Hours Workers Loaded wage 

rate Population 2 Total 3

Federal-level DOL ............... Management Analyst ......... 4 1 $93.82 NA $375 

State-level DOL ................... Management Analyst ......... 11 1 63.20 57 39,629 

Local-Level DOL ................. Management Analyst ......... 4 1 78.06 580 181,104 

Federal-level AEFLA ........... Management Analyst ......... 4 1 93.82 NA 375 

State-level AEFLA ............... Management Analyst ......... 11 1 63.20 57 39,629 

Local-Level AEFLA ............. Management Analyst ......... 4 1 78.06 1,719 536,754 

Federal-level VR ................. Management Analyst ......... 4 1 93.82 NA 375 

State-level VR ..................... Management Analyst ......... 4 1 63.20 78 19,720 

State-level VR ..................... Rehab Counselor ............... 1 62 48.88 78 236,407 

Annual Total ................. ............................................. ........................ ........................ ........................ ........................ 1,054,369 

1 Management analysts on the Federal level are GS–14, Step 5. 

2Population figures represent States (57), VR agencies (78), and AEFLA providers (1,719). 

3 Numbers may not sum due to rounding for the convenience of the reader. 


ddrumheller on DSK120RN23PROD with RULES2
Federal Register / Vol. 89, No. 37 / Friday, February 23, 2024 / Rules and Regulations 13841 

(3) Repeat Business Customer: 

Percentage of Repeat Employers Using 

Services Within the Previous 3 Years 

This section calculates the cost for all 

57 States to collect data, calculate, and 

report the Repeat Business Customer 

approach to the effectiveness in serving 

employers performance indicator. The 

Departments use these costs to estimate 

cost savings for the proportion of States 

that will no longer report this pilot 

approach under the final rule. 

At the Federal level for the DOL core 

programs, the Departments estimated 

the annual labor cost associated with 

Repeat Business Customer by 

multiplying the estimated number of 

GS–14, Step 5 management analysts 

(one) by the time required for technical 

assistance delivery (4 hours) and by the 

hourly compensation rate ($93.82/hour). 

This calculation results in an annual 

labor cost of $375. 

At the State level for the DOL core 

programs, the Departments estimated 

Repeat Business Customer’s annual 

labor cost by multiplying the estimated 

number of management analysts (one) 

by the sum of time required for data 

collection (4 hours), providing training 

and technical assistance to Local WDBs 

(3 hours), and Federal reporting (4 

hours) and by the hourly compensation 

rate ($63.20/hour). We multiplied the 

labor cost ($695) by the number of 

States (57) to estimate this annual cost 

at $39,629. 

For the local-level DOL core 

programs, the Departments estimated 

the annual labor cost for Repeat 

Business Customer by multiplying the 

estimated number of management 

analysts (one) by the time required for 

data collection (6 hours) and by the 

hourly compensation rate ($78.06/hour). 

We multiplied the labor cost ($468) by 

the number of Local WDBs (580) to 

estimate this annual cost at $271,655. 

At the Federal level for the AEFLA 

program, the Departments estimated the 

annual labor cost associated with Repeat 

Business Customer by multiplying the 

estimated number of GS–14, Step 5 

management analysts (one) by the time 

required for technical assistance 

delivery (4 hours) and by the hourly 

compensation rate ($93.82/hour). This 

calculation results in an annual labor 

cost of $375. 

At the State level for the AEFLA 

program, the Departments estimated 

Repeat Business Customer’s annual 

labor cost by multiplying the estimated 

number of management analysts (one) 

by the sum of time required for data 

collection (4 hours), providing training 

and technical assistance to local AEFLA 

providers (3 hours), and Federal 

reporting (4 hours) and by the hourly 

compensation rate ($63.20/hour). We 

multiplied the labor cost ($695) by the 

number of States (57) to estimate this 

annual cost at $39,629. 

For the local-level AEFLA program, 

the Departments estimated the annual 

labor cost for Repeat Business Customer 

by multiplying the estimated number of 

management analysts (one) by the time 

required for data collection (6 hours) 

and by the hourly compensation rate 

($78.06/hour). We multiplied the labor 

cost ($468) by the number of local 

AEFLA providers (1,719) to estimate 

this annual cost at $805,130. 

At the Federal level for the VR 

program, the Departments estimated the 

annual labor cost associated with Repeat 

Business Customer by multiplying the 

estimated number of GS–14, Step 5 

management analysts (one) by the time 

required for technical assistance 

delivery (4 hours) and by the hourly 

compensation rate ($93.82/hour). This 

calculation results in an annual labor 

cost of $375. 

At the State level for the VR program, 

the Departments estimated Repeat 

Business Customer’s annual labor cost 

by multiplying the estimated number of 

management analysts (one) by the time 

required for Federal reporting (4 hours) 

and by the hourly compensation rate 

($63.20/hour). In addition, we added the 

estimated number of rehabilitation 

counselors (62 counselors) by the time 

required for data collection (1 hour 

each) and by the hourly compensation 

rate ($48.88/hour). We summed the 

labor cost for both categories ($3,284) 

and multiplied it by the number of VR 

agencies (78) to estimate this annual 

cost of $256,127. 

Summing these annual costs for all 

States to calculate and report Repeat 

Business Customer yields $1,413,298 

per year for the Federal-, State-, and 

local-level DOL core programs and 

AEFLA programs and the State-level VR 

programs. The Departments used the 

updated costs in Exhibit 9 to estimate 

the cost savings for States to no longer 

report this pilot approach. 

EXHIBIT 9—REPEAT BUSINESS CUSTOMER, ANNUAL

Agency Labor category 1 Hours Workers Loaded wage 

rate Population 2 Total 3

Federal-level DOL ............... Management Analyst ......... 4 1 $93.82 NA $375 

State-level DOL ................... Management Analyst ......... 11 1 59.70 57 39,629 

Local-Level DOL ................. Management Analyst ......... 6 1 73.67 580 271,655 

Federal-level AEFLA ........... Management Analyst ......... 4 1 93.82 NA 375 

State-level AEFLA ............... Management Analyst ......... 11 1 59.70 57 39,629 

Local-Level AEFLA ............. Management Analyst ......... 6 1 73.67 1,719 805,130 

Federal-level VR ................. Management Analyst ......... 4 1 93.82 NA 375 

State-level VR ..................... Management Analyst ......... 4 1 59.70 78 19,720 

State-Level VR .................... Rehab Counselor ............... 1 62 47.94 78 236,407 

Annual Total ................. ............................................. ........................ ........................ ........................ ........................ 1,413,298 

1 Management analysts on the Federal level are GS–14, Step 5. 

2Population figures represent States (57), VR agencies (78), and AEFLA providers (1,719). 

3 Numbers may not sum due to rounding for the convenience of the reader. 


ddrumheller on DSK120RN23PROD with RULES2
13842 Federal Register / Vol. 89, No. 37 / Friday, February 23, 2024 / Rules and Regulations 

49S. 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%20

of%20Effectiveness%20in

%20Serving%20Employers_Final%20Report.pdf. 

(4) Summary of Cost Savings 

Under the final rule, the 15 States that 

currently report only the Retention with 

the Same Employer and Employer 

Penetration pilot approaches will have 

cost savings from no longer having to 

collect data for, calculate, and report 

Employer Penetration. Multiplying the 

annual cost for all 57 States to collect 

data for, calculate, and report Employer 

Penetration ($1,054,369) by the 26.3 

percent of States reporting these two 

pilot approaches only (15 out of 57) 

yields annual cost savings of $277,466. 

The 9 States currently reporting only 

the Retention with the Same Employer 

and Repeat Business Customer pilot 

approaches will have cost savings from 

no longer collecting data for, 

calculating, and reporting Repeat 

Business Customer. Multiplying the 

annual cost for all 57 States to collect 

data for, calculate, and report Repeat 

Business Customer ($1,413,298) by the 

15.8 percent of States reporting these 

two pilot approaches only (9 out of 57) 

yields annual cost savings of $223,152. 

The 22 States currently reporting only 

Employer Penetration and Repeat 

Business Customer and the 16 States 

currently reporting all three pilot 

approaches to the effectiveness in 

serving employers performance 

indicator will have cost savings from no 

longer collecting data for, calculating, 

and reporting both Employer 

Penetration and Repeat Business 

Customer. Multiplying the sum of 

annual costs for all 57 States to collect 

data for, calculate, and report both 

Employer Penetration and Repeat 

Business Customer ($2,467,667) by the 

38.6 percent of States reporting 

Employer Penetration and Repeat 

Business Customer only and by the 28.1 

percent of States reporting all three 

approaches yields annual cost savings of 

$952,433 and $692,679, respectively. 

Summing these annual cost savings 

yields total annual cost savings for all 

57 States of $2,145,729 from the final 

rule. The Departments estimate total 

cost savings over the 10-year period at 

$21,457,293 undiscounted, or 

$18,852,612 and $16,125,654 at 

discount rates of 3 and 7 percent, 

respectively. At discount rates of 3 and 

7 percent, the 10-year period results in 

annualized cost savings of $2,210,101 

and $2,295,930, respectively. 

e. Qualitative Benefits Discussion 

(1) General Benefits of Measuring 

Effectiveness in Serving Employers 

The Departments cannot quantify the 

final rule’s benefits associated with 

improving the WIOA core programs’ 

effectiveness in serving employers. 

Measuring effectiveness in serving 

employers allows the DOL, AEFLA, and 

VR programs to set goals, monitor, and 

learn how to serve employers more 

effectively.49 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. 

The Departments cannot quantify 

these estimated benefits because we do 

not have quantitative data on how the 

effectiveness in serving employers 

performance measure has influenced 

program implementation and how much 

it will influence future policies. 

(2) Specific Benefits of Reporting 

Retention With the Same Employer 

Requiring all States to calculate and 

report Retention with the Same 

Employer as the effectiveness in serving 

employers performance indicator will 

make it easier to compare WIOA core 

programs’ effectiveness in serving 

employers performance across States 

and ensure all States have an indicator 

of job turnover and match quality 

between workers exiting WIOA core 

programs and employers. Retention 

with the Same Employer demonstrates a 

continued relationship between the 

employer and participants who have 

exited WIOA core 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 employeremployee 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 their 

employees and for employees to invest 

in learning employer-specific skills. 

6. Summary of the Analysis 

Exhibit 10 summarizes the estimated 

total costs and cost savings of the final 

rule over the 10-year analysis period. 

Discontinuing reporting of Employer 

Penetration and Repeat Business 

Customer has the largest effect as a cost 

savings. The Departments estimate the 

total net cost savings of the final rule at 

$16,125,654 at a discount rate of 7 

percent. 

EXHIBIT 10—ESTIMATED 10-YEAR MONETIZED COSTS AND COST SAVINGS OF THE FINAL RULE BY PROVISION

[2022 $millions] 

Provision Cost Cost savings Total net 

cost savings 

Rule Familiarization ..................................................................................................................... $0.13 ........................ ........................

Reporting Retention with the Same Employer ............................................................................ 0.16 ........................ ........................

No Longer Reporting Other Measures ........................................................................................ ........................ $21.46 ........................

Undiscounted ............................................................................................................................... 0.35 21.46 $21.11 

With a Discount Rate of 3% ........................................................................................................ 0.33 18.85 18.52 

With a Discount Rate of 7% ........................................................................................................ 0.31 16.13 15.82 

The Departments estimate the 

annualized costs of the final rule at 

$44,208 and the annualized cost savings 

at $2,295,930, at a discount rate of 7 

percent. The Departments estimate the 

final rule will result in an annualized 

net quantifiable cost savings of 

$2,251,723 and a total 10-year net cost 

savings of $15,815,157, both at a 


ddrumheller on DSK120RN23PROD with RULES2
Federal Register / Vol. 89, No. 37 / Friday, February 23, 2024 / Rules and Regulations 13843 

50S. Spaulding, et al., ‘‘Measuring the 

Effectiveness of Services to Employers: Options for 

Performance Measures under the Workforce 

Innovation and Opportunity Act,’’ Jan. 2021, page 

68, https://wdr.doleta.gov/research/FullText_

Documents/ETAOP2021-17%20Measures%20

of%20Effectiveness%20in%20Serving%20

Employers_Final%20Report.pdf. 

discount rate of 7 percent and expressed 

in 2022 dollars. Exhibit 11 summarizes 

the estimated total costs and cost 

savings of the final rule over the 10-year 

analysis period. 

EXHIBIT 11—ESTIMATED MONETIZED COSTS, COST SAVINGS, AND NET COST SAVINGS OF THE FINAL RULE

[2022$] 

Year/total Costs Costs savings Net cost savings 

2024 ........................................................................................................................... $213,987 $2,145,729 $1,931,742 

2025 ........................................................................................................................... 14,813 2,145,729 2,130,916 

2026 ........................................................................................................................... 14,813 2,145,729 2,130,916 

2027 ........................................................................................................................... 14,813 2,145,729 2,130,916 

2028 ........................................................................................................................... 14,813 2,145,729 2,130,916 

2029 ........................................................................................................................... 14,813 2,145,729 2,130,916 

2030 ........................................................................................................................... 14,813 2,145,729 2,130,916 

2031 ........................................................................................................................... 14,813 2,145,729 2,130,916 

2032 ........................................................................................................................... 14,813 2,145,729 2,130,916 

2033 ........................................................................................................................... 14,813 2,145,729 2,130,916 

Undiscounted 10-Year Total ...................................................................................... 347,304 21,457,293 21,109,989 

10-Year Total with a Discount Rate of 3% ................................................................ 329,323 18,852,612 18,523,289 

10-Year Total with a Discount Rate of 7% ................................................................ 310,497 16,125,654 15,815,157 

10-Year Average ........................................................................................................ 34,730 2,145,729 2,110,999 

Annualized with a Discount Rate of 3% .................................................................... 38,607 2,210,101 2,171,495 

Annualized with a Discount Rate of 7% .................................................................... 44,208 2,295,930 2,251,723 

7. Regulatory Alternatives 

The Departments considered two 

alternatives to the proposed definition 

of the effectiveness in serving employers 

performance indicator. First, the 

Departments 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 individual employers receiving 

services through WIOA’s programs. 

Employer Penetration would require a 

more data-intensive analysis than the 

proposed approach of Retention with 

the Same Employer. Employer 

Penetration would have the benefit of 

capturing the extent to which employers 

within a State are engaged with WIOAfunded services and would provide 

State programs an incentive to work 

with additional employers. As 

discussed earlier in Section II.A (Pilot 

Programs for WIOA Core Programs), on 

behalf of the Departments, DOL 

commissioned an examination of State 

experiences with the various 

approaches through a third-party 

contractor (the Final Pilot Study Report 

discussed elsewhere in this final rule), 

which found weaknesses in this pilot 

approach, including (1) an 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) a lack of sensitivity to 

industry sectors targeted by State and 

local workforce agencies.50 The 

Departments estimated the costs and 

cost savings of this alternative using the 

same method as the proposed approach. 

That is, the Departments used the 

estimated cost of collecting data, 

calculating, and reporting Employer 

Penetration, and then estimated the cost 

for the proportion of States that would 

need to start using this approach to 

reporting effectiveness in serving 

employers (4 States). Exhibit 12 

summarizes these calculations below. 

EXHIBIT 12—SUMMARY OF REGULATORY ALTERNATIVE 1 COSTS

Non-reported measure Number of 

states 

Updated 2016 

cost estimates: 

initial cost 

Updated 2016 

cost estimates: 

annual cost 

Adjusted cost 

estimates: 

updated cost 

estimates × 

(# states 

÷ 57), 

initial cost 

Adjusted cost 

estimates: 

updated cost 

estimates × 

(# states 

÷ 57), 

annual cost 

Employer Penetration .............................................. 4 $264,215 $1,054,369 $18,541 $73,991 

Costs include calculating and 

reporting Employer Penetration and rule 

familiarization for WIOA core programs. 

The Departments estimate the total cost 

of the first alternative over the 10-year 

period at $876,059 undiscounted, or 

$786,242 and $692,209 at discount rates 

of 3 and 7 percent, respectively, and an 

annualized cost of the 10-year period at 

$92,172 and $98,555 with discount rates 

of 3 and 7 percent, respectively. 

To calculate cost savings the 

Departments used the estimated cost of 

collecting data for, calculating, and 

reporting the two other effectiveness in 

serving employers approaches 

(Retention with the Same Employer and 


ddrumheller on DSK120RN23PROD with RULES2
13844 Federal Register / Vol. 89, No. 37 / Friday, February 23, 2024 / Rules and Regulations 

51S. Spaulding, et al., ‘‘Measuring the 

Effectiveness of Services to Employers: Options for 

Performance Measures under the Workforce 

Innovation and Opportunity Act,’’ Jan. 2021, page 

67, https://wdr.doleta.gov/research/FullText_

Documents/ETAOP2021-17%20Measures%20

of%20Effectiveness%20in%20Serving%20

Employers_Final%20Report.pdf. 

Repeat Business Customer), and then 

estimated the cost savings for the 

proportion of States that would 

transition from their existing reporting 

combination of two or three 

effectiveness in serving employers 

approaches to the single Employer 

Penetration approach to the 

performance indicator. Exhibit 13 

summarizes these calculations below. 

EXHIBIT 13—SUMMARY OF REGULATORY ALTERNATIVE 1 COST SAVINGS

Reported measures Number of 

states 

Updated 2016 cost 

estimates: annual 

cost savings 

Adjusted cost 

savings estimates: 

updated cost 

estimates × 

(# states ÷ 57): 

annual cost 

savings 

Employer Penetration + Retention with the Same Employer .................................. 15 $49,667 $13,070 

Employer Penetration + Repeat Business Customer .............................................. 22 1,413,298 545,483 

Retention with the Same Employer + Repeat Business Customer (No Employer 

Penetration) .......................................................................................................... 9 1,462,965 230,994 

All Three .................................................................................................................. 16 1,462,965 410,657 

The Departments estimated the total 

cost savings associated with the first 

alternative over the 10-year period at 

$12,002,050 undiscounted, or 

$10,545,132 and $9,019,820 at discount 

rates of 3 and 7 percent, respectively, 

with an annualized cost savings 

associated with the first alternative over 

the 10-year period at $1,236,211 and 

$1,284,219 with discount rates of 3 and 

7 percent, respectively. 

We estimate the first regulatory 

alternative to result in total net cost 

savings over the 10-year period of 

$11,125,992 undiscounted, or 

$9,758,890 and $8,327,611 at discount 

rates of 3 and 7 percent, respectively, 

with an annualized net cost savings of 

the 10-year period at $1,144,040 and 

$1,185,664 with discount rates of 3 and 

7 percent, respectively. 

The Departments 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 

core 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. The 

Departments, in the Final Pilot Study 

Report, 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 statistical adjustment model to 

mitigate the weaknesses and improve 

implementation and interpretation.51

The Departments estimated the costs 

and cost savings of this alternative using 

the same method as the proposed 

approach. That is, the Departments used 

the estimated cost of collecting data, 

calculating, and reporting Repeat 

Business Customer, and then estimated 

the cost for the proportion of States that 

would need to start using this approach 

to reporting effectiveness in serving 

employers (10 States). Exhibit 14 

summarizes these calculations below. 

EXHIBIT 14—SUMMARY OF REGULATORY ALTERNATIVE 2 COSTS

Non-reported measure Number of 

states 

Updated 2016 

cost 

estimates: 

initial cost 

Updated 2016 

cost estimates: 

annual cost 

Adjusted cost 

estimates: 

updated cost 

estimates × 

(# states 

÷ 57), 

initial cost 

Adjusted cost 

estimates: 

updated cost 

estimates × 

(# states 

÷ 57), 

annual cost 

Repeat Business Customer ........................................... 10 $260,613 $1,413,298 $45,722 $247,947 

Costs include the cost of calculating 

and reporting Repeat Business Customer 

and the cost of rule familiarization for 

WIOA core programs. The Departments 

estimated the total cost of the second 

alternative over the 10-year period at 

$2,468,844 undiscounted, or $2,167,864 

and $1,852,753 at discount rates of 3 

and 7 percent, respectively, with an 

annualized cost of the 10-year period at 

$254,140 and $263,790 with discount 

rates of 3 and 7 percent, respectively. 

To calculate cost savings, the 

Departments used the estimated cost of 

collecting data for, calculating, and 

reporting the two other effectiveness in 

serving employers approaches 

(Retention with the Same Employer and 

Employer Penetration), and then 

estimated the cost savings for the 

proportion of States that would 

transition from their existing reporting 

combination of two or three 

effectiveness in serving employers 

approaches to the single Repeat 

Business Customer approach to the 

performance indicator. Exhibit 15 

summarizes these calculations below. 


ddrumheller on DSK120RN23PROD with RULES2
Federal Register / Vol. 89, No. 37 / Friday, February 23, 2024 / Rules and Regulations 13845 

52SBA, ‘‘Table of size standards,’’ effective March 

17, 2023, https://www.sba.gov/document/supporttable-size-standards (last visited September 13, 

2023). Dollar values provided in parentheses are the 

SBA average annual receipts small entity threshold 

(2022 dollars) for the relevant NAICS code. 

EXHIBIT 15—SUMMARY OF REGULATORY ALTERNATIVE 2 COST SAVINGS

Reported measures Number of 

states 

Updated 2016 cost 

estimates: annual 

cost savings 

Adjusted cost 

savings estimates: 

updated cost 

estimates × 

(# states ÷ 57): 

annual cost 

savings 

Repeat Business Customer + Retention with the Same Employer ........................ 9 $49,667 $7,842 

Repeat Business Customer + Employer Penetration .............................................. 22 1,054,369 406,950 

Employer Penetration + Retention with the Same Employer (No Repeat Business Customer) .................................................................................................... 15 1,104,036 290,536 

All Three .................................................................................................................. 16 1,104,036 309,905 

The Departments estimated total cost 

savings associated with the second 

alternative over the 10-year period is 

$10,152,326 undiscounted, or 

$8,919,944 and $7,729,709 at discount 

rates of 3 and 7 percent, respectively 

with an annualized cost savings 

associated with the second alternative 

over the 10-year period is $1,045,690 

and $1,086,299 with discount rates of 3 

and 7 percent, respectively. 

The Departments estimate the second 

regulatory alternative to result in total 

net cost savings over the 10-year period 

of $7,683,482 undiscounted, or 

$6,752,081 and $5,776,955 at discount 

rates of 3 and 7 percent, respectively, 

with an annualized net cost savings of 

the 10-year period at $791,550 and 

$822,508 with discount rates of 3 and 7 

percent, respectively. 

Exhibit 16 summarizes the estimated 

net cost savings associated with the 

three considered approaches to the 

effectiveness in serving employers 

performance indicator (i.e., the three 

piloted approaches). The Departments 

prefer the proposed approach of 

requiring the use of Retention with the 

Same Employer because it has data 

more readily available, and, therefore, is 

less burdensome. The Retention with 

the Same Employer approach better 

aligns with workforce system goals of 

supporting employer-employee job 

match quality and reducing turnover 

without the weaknesses associated with 

the other two approaches to defining the 

effectiveness in serving employers 

performance indicator. 

EXHIBIT 16—ESTIMATED MONETIZED COSTS OF THE FINAL RULE AND REGULATORY ALTERNATIVES

[2021 $millions] 

Final rule Regulatory 

alternative 1 

Regulatory 

alternative 2 

Total 10-Year Net Cost Savings .................................................................................................. $21.1 $11.1 $7.7 

Total with 3% Discount ................................................................................................................ 18.5 9.8 6.8 

Total with 7% Discount ................................................................................................................ 15.8 8.3 5.8 

Annualized with 3% Discount ...................................................................................................... 2.17 1.14 0.79 

Annualized with 7% Discount ...................................................................................................... 2.25 1.19 0.82 

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-forprofit 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 RFA permits an 

agency, in lieu of preparing such an 

analysis, to certify that the rulemaking 

is not expected to have a significant 

economic impact on a substantial 

number of small entities. 5 U.S.C. 605. 

The Departments determined that the 

final rule will not have a significant 

economic impact on a substantial 

number of small entities because any 

impacted small entities are already 

receiving financial assistance under the 

WIOA program and likely would 

continue to do so. The Departments 

have certified this to the Chief Counsel 

for Advocacy, Small Business 

Administration, pursuant to the RFA. 5 

U.S.C. 605. 

1. Affected Small Entities 

The WIOA title I adult, dislocated 

worker, and youth program grantees, the 

WIOA title II State-level AEFLA 

grantees, Wagner-Peyser Act grantees 

(under the Wagner-Peyser Act as 

amended by WIOA title III), and VR 

program grantees (under the 

Rehabilitation Act as amended by WIOA 

title IV), are State government agencies 

and, therefore, are not considered small 

entities. However, the final rule could 

have a minimal impact on a variety of 

AEFLA local providers, some of which 

are small entities by U.S. Small 

Business Administration (SBA) size 

standards: 52 (1) local educational 

agencies (NAICS 611710; $24.0 million); 

(2) community-based organizations 

(NAICS 813410; $9.5 million); (3) faithbased organizations (NAICS 813110; 

$13.0 million); (4) libraries (NAICS 

519210; $21.0 million); (5) community, 

junior (NAICS 611210; $32.5 million), 

and technical colleges (NAICS 611519; 

$21.0 million); (6) 4-year colleges and 

universities (NAICS 611310; $34.5 


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53There is no SBA size standard for this NAICS 

code. 

54The smallest category are entities with less than 

$100,000 in annual revenue. Revenue data from 

U.S. Census Bureau ‘‘Statistics of U.S. Businesses,’’ 

http://www.census.gov/programs-surveys/susb/ 

data.html (last updated May 10, 2022). 

55 Ibid. 

56For NAICS 813410 average revenue is $58,521 

for entities with less than $100,000 in revenue and 

for NAICS 519120 average revenue is $58,581 for 

entities with less than $100,000 in revenue. 0.4% 

and 0.67% is based on either net savings of $233.94 

or $389.94 (0.40 = 233.94 ÷ 58,521; 0.67 = 389.94 

÷ 58,521). 

million); (7) correctional institutions 

(NAICS 922410; NA 53); (8) other 

institutions, such as medical and special 

institutions not designed for justiceinvolved individuals (NAICS 623210; 

$19.0 million); and (9) other public or 

private nonprofit agencies or 

institutions (NAICS 813319; $18.0 

million). 

Comments: Some commenters stated 

that the proposed rule assumes the only 

small entities affected by the rule would 

be AEFLA local program operators. 

However, the commenters said, in 

Michigan, local program operators of 

title I adult, dislocated worker, and 

youth programs, title II AEFLA 

programs, and title III Wagner-Peyser 

Act programs all meet the definition of 

small entities. 

Departments’ Response: This RFA 

section includes a discussion of the 

multiple types of small entities that may 

be affected by the rule, including local 

educational agencies (NAICS 611710), 

community-based organizations (NAICS 

813410), public or private non-profit 

agencies or institutions (NAICS 813319), 

and additional local AEFLA provider 

classifications discussed in the RFA that 

might be implicated. The only cost of 

the final rule to these entities is $73.67 

for rule familiarization, which would 

pose a de minimis cost for even the 

smallest entity. 

2. Impact on Small Entities 

The final rule definition of the 

effectiveness in serving employers 

performance indicator will have a 

minimal impact on AEFLA local 

providers. Each local AEFLA provider is 

expected to incur a $78.06 cost to 

review the rule. The $78.06 cost to 

review the rule is a de minimis burden 

on the entities incurring the cost, 

including the smallest entities subject to 

the rule. For example, the smallest 

category of community-based 

organization (NAICS 813410—civic and 

social organizations) has annual revenue 

of $58,521 in 2022 dollars.54 They 

would therefore spend only 0.13 percent 

of their annual revenue on this cost. 

Amongst the smallest category of 

libraries (NAICS 519120—libraries and 

archives) this cost would also be 0.13 

percent of the average entity’s annual 

revenue of $58,581 in 2022 dollars.55

Local AEFLA providers are not 

estimated to incur any new costs, 

beyond the cost to review the rule, to 

report Retention with the Same 

Employer. Some local AEFLA providers 

may incur net cost savings if they 

currently report Employer Penetration 

or Repeat Business Customer. Local 

AEFLA providers that currently report 

Employer Penetration will incur cost 

savings of $312 and local AEFLA 

providers that currently report Repeat 

Business Customer will incur cost 

savings of $468. Therefore, some local 

AEFLA providers would have net cost 

savings of between $233.94 

(= $312¥$78.06) and $389.94 

(= $468¥$78.06) depending on the 

measure they currently report. For these 

local AEFLA providers the net cost 

savings would still be less than 1% of 

revenue (0.40% and 0.67% respectively 

for the smallest categories of entities in 

NAICS 813410 and NAICS 519120).56

Federal transfer payments to States 

would fully finance the minor WIOA 

program cost burdens on grantees that 

would result from the final rule. 

Therefore, the Departments hereby 

certify that the final rule will not have 

a significant economic impact on a 

substantial number of small entities. 

C. Paperwork Reduction Act of 1995 

The purposes of the Paperwork 

Reduction Act of 1995 (PRA), 44 U.S.C. 

3501 et seq., include minimizing the 

paperwork burden on affected entities. 

The PRA requires certain actions before 

an agency can adopt or revise a 

collection of information, including 

publishing for public comment a 

summary of the collection of 

information and a brief description of 

the need for and proposed use of the 

information. 

As part of their continuing efforts to 

reduce paperwork and respondent 

burden, the Departments conduct a 

preclearance consultation program to 

provide the general public and Federal 

agencies with an opportunity to 

comment on proposed and continuing 

collections of information in accordance 

with the PRA. See 44 U.S.C. 

3506(c)(2)(A). This activity helps to 

ensure that (1) the public understands 

the Departments’ collection 

instructions; (2) respondents can 

provide the requested data in the 

desired format; (3) reporting burden 

(time and financial resources) is 

minimized; (4) collection instruments 

are clearly understood; and (5) the 

Departments can properly assess the 

impact of collection requirements on 

respondents. Furthermore, the PRA 

requires all Federal agencies to analyze 

proposed regulations for potential time 

burdens on the regulated community 

created by provisions in the proposed 

regulations that require any party to 

obtain, maintain, retain, report, or 

disclose information. The information 

collection requirements also must be 

submitted to OMB for approval. 

A Federal agency may not conduct or 

sponsor a collection of information 

unless it is approved by OMB under the 

PRA and displays a currently valid 

OMB control number. The public also is 

not required to respond to a collection 

of information unless it displays a 

currently valid OMB control number. In 

addition, notwithstanding any other 

provisions of law, no person will be 

subject to penalty for failing to comply 

with a collection of information if the 

collection of information does not 

display a currently valid OMB control 

number. See 44 U.S.C. 3512. 

The final rule revises ETA 9169, 

WIOA Statewide and Local Performance 

Report Template approved under OMB 

Control Number 1205–0526. The 

revision requires ‘‘Retention with the 

Same Employer’’ as the only definition 

of the effectiveness in serving employers 

performance indicator in the WIOA 

Common Performance Reporting ICR by 

an entity that reports to the Departments 

on behalf of the State. Data elements for 

the collection and calculation for the 

two other piloted definitions of the 

effectiveness in serving employers 

performance indicator—Repeat Business 

Customer and Employer Penetration— 

are removed from the ICR, along with 

the corresponding breakouts of the 

employer services that comprise them. 

No other changes were proposed for this 

ICR in the Joint WIOA Effectiveness in 

Serving Employers NPRM. In 

accordance with the PRA, the 

Departments submitted the associated 

ICR to OMB in concert with the 

publishing of the proposed rule, and 

provided the public with a 60-day 

opportunity to submit comments on the 

ICR, either directly to the Departments 

or to OMB, which began with the 

submission of the ICR to OMB. The 

Departments and OMB received no 

comments on the proposed changes. 

Agency: DOL–ETA. 

Title of Collection: Workforce 

Innovation and Opportunity Act 

(WIOA) Common Performance 

Reporting. 

Type of Review: Revision of an 

approved ICR. 

OMB Control Number: 1205–0526. 


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Description: The final rule requires 

Retention with the Same Employer as 

the only definition of the effectiveness 

in serving employers performance 

indicator in ETA 9169, WIOA Statewide 

and Local Performance Report Template 

by an entity that reports to the 

Departments on behalf of the State. Data 

elements for the collection and 

calculation for the two other piloted 

definitions of the effectiveness in 

serving employers performance 

indicator—Repeat Business Customer 

and Employer Penetration—are to be 

removed from the ICR, along with the 

corresponding breakouts of the 

employer services that comprise them. 

This package is unchanged except to 

remove the data elements discussed 

above. The final rule makes no other 

changes to this ICR. 

Affected Public: State Governments. 

Obligation to Respond: Required to 

Obtain or Retain Benefits. 

Frequency: Annually. 

Estimated Total Annual Respondents: 

19,114,129. 

Estimated Total Annual Responses: 

38,216,054. 

Estimated Total Annual Burden 

Hours: 9,863,057. 

Estimated Total Annual Other Burden 

Costs: $34,594,532. 

Authority for the Information 

Collection: 20 CFR 677.155(a)(1)(vi), and 

34 CFR 361.155(a)(1)(vi) and 

463.155(a)(1)(vi). 

D. Executive Order 13132 (Federalism) 

E.O. 13132 aims to guarantee the 

division of governmental 

responsibilities between the Federal 

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 Federal 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 pre-empts State law. E.O. 

13132 also sets forth the procedures 

agencies must follow for certain 

regulations with federalism 

implications, such as preparation of a 

summary impact statement. 

Accordingly, the Departments 

reviewed this WIOA-required final rule 

for federalism implications and have 

concluded that none exist in this 

rulemaking. This joint final rule does 

not contain any 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 

Departments 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 of 

1995 

UMRA directs agencies to assess the 

effects of Federal regulatory actions on 

State, local, and Tribal governments, 

and 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. 

Following the consideration of the 

above factors, the Departments 

concluded this joint final rule contains 

no unfunded Federal mandates, as 

defined in 2 U.S.C. 658(6) to include 

either a ‘‘Federal intergovernmental 

mandate’’ or a ‘‘Federal private sector 

mandate.’’ Reporting Retention with the 

Same Employer as the effectiveness in 

serving employers performance 

indicator as proposed does not place 

any additional burdens on State, local, 

and Tribal governments because the 

WIOA core programs already collect and 

report the necessary information. 

Furthermore, Federal program funding 

triggers the reporting requirement; 

therefore, the Departments provide 

funding for any associated reporting 

mandate. Private training entities 

participate as a provider under a WIOA 

core program on a purely voluntary 

basis, and voluntarily assume the 

information collection. 

F. Executive Order 13175 (Indian Tribal 

Governments) 

The Departments reviewed this final 

rule under the terms of E.O. 13175 and 

DOL’s Tribal Consultation Policy and 

have determined that it would have 

Tribal implications, because the 

proposed regulations 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, DOL has prepared a Tribal 

summary impact statement. Because the 

Tribal implications of this final rule 

relate only to DOL Indian and Native 

American (INA) program grantees, DOL 

has printed the requisite Tribal 

summary impact statement in the DOLspecific effectiveness in serving 

employers final rule published 

elsewhere in this issue of the Federal 

Register, which proposes related 

changes for effectiveness in serving 

employers to DOL’s INA program 

regulations. 

List of Subjects 

20 CFR Part 677 

Employment, Grant programs—labor. 

34 CFR Part 361 

Administrative practice and 

procedure, Grant programs—education, 

Grant programs—social programs, 

Reporting and recordkeeping 

requirements, Vocational rehabilitation. 

34 CFR Part 463 

Adult education, Grant programs— 

education. 

For the reasons discussed in the 

preamble, the Employment and Training 

Administration amends 20 CFR part 677 

as follows: 

PART 677—PERFORMANCE 

ACCOUNTABILITY UNDER TITLE I OF 

THE WORKFORCE INNOVATION AND 

OPPORTUNITY ACT 

■ 1. The authority citation for part 677 

continues to read as follows: 

Authority: Secs. 116, 189, and 503 of Pub. 

L. 113–128, 128 Stat. 1425 (Jul. 22, 2014). 

Subpart A—State Indicators of 

Performance for Core Programs 

■ 2. Amend § 677.155 by revising 

paragraphs (a)(1)(vi) and (c)(6) to read as 

follows: 

§ 677.155 What are the primary indicators 

of performance under the Workforce 

Innovation and Opportunity Act? 

(a) * * * 

(1) * * * 

(vi) 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 


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quarters after exit. For the six core 

programs, this indicator is a statewide 

indicator reported by one core program 

on behalf of all six core programs in the 

State, as described in guidance. 

* * * * * 

(c) * * * 

(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. For the six core 

programs, this indicator is a statewide 

indicator reported by one core program 

on behalf of all six core programs in the 

State, as described in guidance. 

Subpart B—Sanctions for State 

Performance and the Provision of 

Technical Assistance 

■ 3. Amend § 677.190 by revising 

paragraph (c) to read as follows: 

§ 677.190 When are sanctions applied for 

failure to achieve adjusted levels of 

performance? 

* * * * * 

(c) Whether a State has failed to meet 

adjusted levels of performance will be 

determined using the following criteria: 

(1) The overall State program score, 

which is expressed as the percent 

achieved, compares the actual results 

achieved by a core program on the 

primary indicators of performance, 

except for the effectiveness in serving 

employers indicator described in 

§ 677.155(a)(1)(vi), to the adjusted levels 

of performance for that core program. 

The average of the percentages achieved 

of the adjusted level of performance for 

each of the primary indicators, except 

for the effectiveness in serving 

employers indicator described in 

§ 677.155(a)(1)(vi), by a core program 

will constitute the overall State program 

score. 

(2) However, until all indicators for 

the core program have at least 2 years 

of complete data, the overall State 

program score will be based on a 

comparison of the actual results 

achieved to the adjusted level of 

performance for each of the primary 

indicators that have at least 2 years of 

complete data for that program. 

(3) The overall State indicator score, 

which is expressed as the percent 

achieved, compares the actual results 

achieved on a primary indicator of 

performance by all core programs in a 

State to the adjusted levels of 

performance for that primary indicator. 

(i) The average of the percentages 

achieved of the adjusted level of 

performance by all of the core programs 

on that indicator will constitute the 

overall State indicator score, except for 

the effectiveness in serving employers 

indicator described in 

§ 677.155(a)(1)(vi). 

(ii) The overall State indicator score 

for effectiveness in serving employers, 

as reported by one core program on 

behalf of all six core programs in the 

State, as described in guidance, is a 

statewide indicator that reflects the 

performance for all core programs. It is 

calculated as the statewide percentage 

achieved of the statewide adjusted level 

of performance. 

(4) However, until all indicators for 

the State have at least 2 years of 

complete data, the overall State 

indicator score will be based on a 

comparison of the actual results 

achieved to the adjusted level of 

performance for each of the primary 

indicators that have at least 2 years of 

complete data in a State. 

(5) The individual indicator score, 

which is expressed as the percent 

achieved, compares the actual results 

achieved by each core program on each 

of the individual primary indicators to 

the adjusted levels of performance for 

each of the program’s primary indicators 

of performance, except for the 

effectiveness in serving employers 

indicator described in 

§ 677.155(a)(1)(vi). 

* * * * * 

For the reasons stated in the 

preamble, the Department of Education 

amends 34 CFR parts 361 and 463 as 

follows: 

PART 361—STATE VOCATIONAL 

REHABILITATION SERVICES 

PROGRAM 

Subpart E—Performance 

Accountability Under Title I of the 

Workforce Innovation and Opportunity 

Act 

■ 4. The authority citation for part 361, 

subpart E continues to read as follows: 

Authority: Secs. 116, 189, and 503 of Pub. 

L. 113–128, 128 Stat. 1425 (Jul. 22, 2014). 

■ 5. Amend § 361.155 by revising 

paragraphs (a)(1)(vi) and (c)(6) to read as 

follows: 

§ 361.155 What are the primary indicators 

of performance under the Workforce 

Innovation and Opportunity Act? 

(a) * * * 

(1) * * * 

(vi) 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. For the six core 

programs, this indicator is a statewide 

indicator reported by one core program 

on behalf of all six core programs in the 

State, as described in guidance. 

* * * * * 

(c) * * * 

(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. For the six core 

programs, this indicator is a statewide 

indicator reported by one core program 

on behalf of all six core programs in the 

State, as described in guidance. 

■ 6. Amend § 361.190 by revising 

paragraph (c) to read as follows: 

§ 361.190 When are sanctions applied for 

failure to achieve adjusted levels of 

performance? 

* * * * * 

(c) Whether a State has failed to meet 

adjusted levels of performance will be 

determined using the following criteria: 

(1) The overall State program score, 

which is expressed as the percent 

achieved, compares the actual results 

achieved by a core program on the 

primary indicators of performance, 

except for the effectiveness in serving 

employers indicator described in 

§ 361.155(a)(1)(vi), to the adjusted levels 

of performance for that core program. 

The average of the percentages achieved 

of the adjusted level of performance for 

each of the primary indicators, except 

for the effectiveness in serving 

employers indicator described in 

§ 361.155(a)(1)(vi), by a core program 

will constitute the overall State program 

score. 

(2) However, until all indicators for 

the core program have at least 2 years 

of complete data, the overall State 

program score will be based on a 

comparison of the actual results 

achieved to the adjusted level of 

performance for each of the primary 

indicators that have at least 2 years of 

complete data for that program. 

(3) The overall State indicator score, 

which is expressed as the percent 

achieved, compares the actual results 

achieved on a primary indicator of 

performance by all core programs in a 

State to the adjusted levels of 

performance for that primary indicator. 

(i) The average of the percentages 

achieved of the adjusted level of 

performance by all of the core programs 

on that indicator will constitute the 

overall State indicator score, except for 

the effectiveness in serving employers 

indicator described in 

§ 361.155(a)(1)(vi). 

(ii) The overall State indicator score 

for effectiveness in serving employers, 

as reported by one core program on 


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behalf of all six core programs in the 

State, as described in guidance, is a 

statewide indicator that reflects the 

performance for all core programs. It is 

calculated as the statewide percentage 

achieved of the statewide adjusted level 

of performance. 

(4) However, until all indicators for 

the State have at least 2 years of 

complete data, the overall State 

indicator score will be based on a 

comparison of the actual results 

achieved to the adjusted level of 

performance for each of the primary 

indicators that have at least 2 years of 

complete data in a State. 

(5) The individual indicator score, 

which is expressed as the percent 

achieved, compares the actual results 

achieved by each core program on each 

of the individual primary indicators to 

the adjusted levels of performance for 

each of the program’s primary indicators 

of performance, except for the 

effectiveness in serving employers 

indicator described in 

§ 361.155(a)(1)(vi). 

* * * * * 

PART 463—ADULT EDUCATION AND 

FAMILY LITERACY ACT 

Subpart I—Performance Accountability 

Under Title I of the Workforce 

Innovation and Opportunity Act 

■ 7. The authority citation for part 463, 

subpart I continues to read as follows: 

Authority: Secs. 116, 189, and 503 of Pub. 

L. 113–128, 128 Stat. 1425 (Jul. 22, 2014). 

■ 8. Amend § 463.155 by revising 

paragraphs (a)(1)(vi) and (c)(6) to read as 

follows: 

§ 463.155 What are the primary indicators 

of performance under the Workforce 

Innovation and Opportunity Act? 

(a) * * * 

(1) * * * 

(vi) 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. For the six core 

programs, this indicator is a statewide 

indicator reported by one core program 

on behalf of all six core programs in the 

State, as described in guidance. 

* * * * * 

(c) * * * 

(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. For the six core 

programs, this indicator is a statewide 

indicator reported by one core program 

on behalf of all six core programs in the 

State, as described in guidance. 

■ 9. Amend § 463.190 by revising 

paragraph (c) to read as follows: 

§ 463.190 When are sanctions applied for 

failure to achieve adjusted levels of 

performance? 

* * * * * 

(c) Whether a State has failed to meet 

adjusted levels of performance will be 

determined using the following criteria: 

(1) The overall State program score, 

which is expressed as the percent 

achieved, compares the actual results 

achieved by a core program on the 

primary indicators of performance, 

except for the effectiveness in serving 

employers indicator described in 

§ 463.155(a)(1)(vi), to the adjusted levels 

of performance for that core program. 

The average of the percentages achieved 

of the adjusted level of performance for 

each of the primary indicators, except 

for the effectiveness in serving 

employers indicator described in 

§ 463.155(a)(1)(vi), by a core program 

will constitute the overall State program 

score. 

(2) However, until all indicators for 

the core program have at least 2 years 

of complete data, the overall State 

program score will be based on a 

comparison of the actual results 

achieved to the adjusted level of 

performance for each of the primary 

indicators that have at least 2 years of 

complete data for that program. 

(3) The overall State indicator score, 

which is expressed as the percent 

achieved, compares the actual results 

achieved on a primary indicator of 

performance by all core programs in a 

State to the adjusted levels of 

performance for that primary indicator. 

(i) The average of the percentages 

achieved of the adjusted level of 

performance by all of the core programs 

on that indicator will constitute the 

overall State indicator score, except for 

the effectiveness in serving employers 

indicator described in 

§ 463.155(a)(1)(vi). 

(ii) The overall State indicator score 

for effectiveness in serving employers, 

as reported by one core program on 

behalf of all six core programs in the 

State, as described in guidance, is a 

statewide indicator that reflects the 

performance for all core programs. It is 

calculated as the statewide percentage 

achieved of the statewide adjusted level 

of performance. 

(4) However, until all indicators for 

the State have at least 2 years of 

complete data, the overall State 

indicator score will be based on a 

comparison of the actual results 

achieved to the adjusted level of 

performance for each of the primary 

indicators that have at least 2 years of 

complete data in a State. 

(5) The individual indicator score, 

which is expressed as the percent 

achieved, compares the actual results 

achieved by each core program on each 

of the individual primary indicators to 

the adjusted levels of performance for 

each of the program’s primary indicators 

of performance, except for the 

effectiveness in serving employers 

indicator described in 

§ 463.155(a)(1)(vi). 

* * * * * 

Julie Su, 

Acting Secretary of Labor. 

Miguel A. Cardona, 

Secretary of Education. 

[FR Doc. 2024–03278 Filed 2–22–24; 8:45 am] 

BILLING CODE 4510–FN–P; 4000–01–P 


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