Monitoring Recipients ELEMENT 7: Monitoring Recipients for Compliance
[29 CFR Part 37.51-37.54]
Background:
The State EO officer, through a joint effort with the DWD Field Services unit will develop a system for evaluating the extent to which recipients are complying with the administrative obligations of 29 CFR Part 37, including, but not limited to assurances, Equal Opportunity officers, notice and communication, data and information collection and maintenance, universal access, complaint processing procedures, along with performing the responsibilities assigned such recipients by the State through the MOA. The responsibilities include conducting equal opportunity monitoring/evaluation reviews, including monitoring assurance and programmatic and architectural accessibility, imposing sanctions and corrective actions for violations, ensuring policy development, communication and training are carried out, ensuring programs and activities are operating in a nondiscriminatory manner and ensuring equal opportunity. The monitoring system will allow the review of recipients every twelve months, at a minimum.
The monitoring tool will include an analysis by race/ethnicity and sex, of program and employment activity, including but not limited to rates of application, placement and termination, to determine if significant differences exist and procedures to conduct follow-up monitoring to determine the cause of any such difference.
The DWD Field Services unit will provide written reports of its findings to recipients identifying the need for corrective action.
Data Analysis
Data collected by Missouri’s Toolbox Automated Case Management System will be analyzed prior to each continuous improvement monitoring visit to a local area to determine whether any differences based on race/ethnicity or sex have practical or statistical significance. The Toolbox system collects information on applicants, registrants, eligible applicants/registrants, participants and terminees. The race/ethnicity, sex and disability status of applicants will be compared with the participant’s and terminee’s characteristics to ensure that these protected applicants are being enrolled into core, intensive and training services equitably. Similarly, the applicant pool will be compared to census and unemployment data for each local area to ensure that protected groups are recruited in proportion to their incidence in the population at large and the unemployed population.
Prior to contracting with any sub-recipient, the Division of Workforce Development will require that the sub-recipient submit a list of their employees and all employment applicants and the employees and applicants of each of their sub-recipients to the State EO officer. These lists will include the race/ethnicity, sex and disability status of employees and applicants for employment. The EO officer will analyze these lists and compare them to census data for the county where the facility is located to ensure that state and local sub-recipients’ hiring practices are not discriminating against these protected segments of the population.
Follow-up Investigations
The State EO officer with regard to personnel and the Field Services unit with regard to WIA applicants/participants will conduct follow-up investigations whenever the above mentioned reviews and analysis find significant differences that may be due to discriminatory conduct. A follow-up investigation may also be initiated based on interviews conducted during monitoring or information contained in participant files. The follow-up investigation will consist of an on-site review of personnel or participant/applicant files and telephone and/or face to face interviews with unsuccessful applicants for participation, employment or promotion who are members of the protected segment in question. If none of the participant/employment applicants are members of a protected segment that is significant in the local population, the Division will require that the under represented entity conduct outreach targeted to the under represented group. When related to employment, this outreach may be postponed until such time as employment vacancies occur.
If the follow-up investigation finds violations of relevant equal opportunity provisions, the offending entity will be required to formulate a corrective action plan. The State EO officer or Field Services unit will conduct a second follow-up to review corrective action progress; no less than three months and no more than six months after the corrective action plan has been initiated.
Assurances
All contracts written by DWD contain the assurances described in 20 CFR 67.20. These assurances bind subcontractors to the non-discrimination provisions of WIA Section 188, 20 CFR 667.200 (f), and all provisions of 29 CFR Part 37. Questions regarding the non-discrimination and equal opportunity provisions of WIA are a part of the annual monitoring conducted by the Field Services unit. The Field Services unit will also review the local areas sub state monitoring of the non-discrimination provisions of WIA and contractual inclusion of the required assurances contained in 29 CFR Part 37.20.
Equal Opportunity Officers
Each Local Workforce Investment Area within Missouri is required to have a designated Equal Opportunity officer who is a senior level employee who coordinates with the State EO officer issues concerning customer and employee rights. The State EO officer will review these appointments and, where applicable, other duties assigned to them, to ensure that such other duties do not create a conflict, or the appearance of a conflict with the responsibilities of an EO officer. Local EO officers will communicate with the State EO officer on a regular basis regarding the status of customer/employee rights. The State EO officer will review these reports and evaluate the status of the system in each local area and with each sub-recipient. The areas the State EO officer will review are monitoring and investigating of recipient activities, the activities of entities receiving WIA Title I funds from the recipient, local written policies to ensure they are non-discriminatory and development of procedures for processing discrimination complaints and all reports on equal opportunity matters.
Notice and Communication
The Field Services unit will conduct reviews of local One-Stop Career Centers to ensure compliance with and posting of the notice contained in 29 CFR 37.30 and that each Center provides “…initial and continuing notice that it does not discriminate on any prohibited ground.” Customer records will be reviewed to ensure they contain evidence of orientation to EO policy, complaint and grievance procedures and (where appropriate) evidence that alternate formats have been provided to individuals with visual impairments or who speak a different language. The State EO officer will review publications produced by sub-recipients to ensure that members of the public are aware that sub-recipients do not discriminate on any prohibited grounds. This will include materials meant for those with impaired vision or hearing. The State EO officer will guide sub-recipient EO officers to ensure that they take appropriate steps to ensure that communications with individuals with disabilities are as effective as with any other persons. This will include but may not be limited to TDD/TTY telephone or relay service and broadcast information.
Data and Information Collection
As previously noted the state maintains as automated case management system called Toolbox. This system provides data on applicants, registrants, eligible applicants/registrants, participants and terminees. Information on employees and applicants for employment is not automated, however, no sub-recipient is of sufficient size to be burdened by the maintenance of such information in paper form. These records are maintained in a format that allows the Governor and CRC to conduct statistical or other quantifiable data analysis to verify the recipients compliance with Section 188 of WIA and of 29 CFR Part 37.37. Participant/applicant information is stored electronically and password protected to ensure confidentiality. Each electronic file records the race/ethnicity, sex, age and where known, the disability status of the applicant.
The State EO officer will maintain and submit to CRC upon request a log of complaints filed with the Division that allege discrimination on the grounds of race, color, religion, sex, national origin, age, disability, political affiliation or belief, citizenship, and/or participation in a WIA Title I assisted program or activity. The log includes the name ad address of the complainants; the grounds of the complaint; a description of the complaint; the date the complaint was filed; the disposition and date of disposition of the complaint; and a field for other information.
The State EO officer and each sub-recipient (local) EO officer will notify CRC when any administrative enforcement actions or lawsuits are filed against their respective entities alleging discrimination on the grounds of race, color, religion, sex, national origin, age, disability, political affiliation or belief, citizenship, and/or participation in a WIA Title I assisted program or activity. This notification will include the names of the parties to the action or lawsuit, the forum in which each case was filed and the relevant case numbers.
In accordance with §37.38 (b) the State EO officer will also provide the name of any other Federal agency that conducted a civil rights compliance review or complaint investigation and that found the Division or its sub-recipients to be in compliance, during the two year period before a CRC examination. The State EO officer will provide information about any administrative enforcement actions or lawsuits that alleged discrimination on any protected basis during the above noted two-year period. This information will also include the names of the parties, the forum in which the case was filed and the relevant case numbers.
The State EO officer will, upon the request of the Director of the CRC, submit such other information and data that may be necessary to determine compliance with the nondiscrimination and equal opportunity provisions of WIA and the regulations. The records required by §37.39 will be maintained for a period not less than three years from the close of the applicable program year.
Universal Access
To demonstrate that they are complying with §37.42, the State EO officer will require local areas and other sub-recipients to submit samples of outreach instruments and schedules relating to recruitment of substantial segments of the local population, at least annually. This submission may also include copies of or references to audio or video tapes used for radio and television advertising and/or copies or the text of newspaper ads. The State EO officer will evaluate these materials and compare them to enrollment and census data for the region to determine if sufficient effort is made to include members of both sexes, various racial and ethnic groups, individuals with disabilities and individuals in different age groups.
Complaint Procedures
Local area complaint procedures are reviewed and evaluated by the Division as part of the approval process for each local area’s five-year plan. The Field Services unit looks for evidence that each participant has received copies of the local area complaint and grievance procedures as they review participant files. The Field Services unit also reviews local Career Centers and satellite offices to ensure that the procedures are conspicuously posted in high traffic areas frequented by applicants that are not yet enrolled as participants.
Conducting Equal Opportunity Monitoring Reviews
All Title I formula funded applicants are required to be part of the Missouri One-Stop Career Center system and to work through the several Career Centers and satellites within the State. Chief Elected Officials and Workforce Investment Boards select these applicants (including grant sub-recipients) in each local area in accordance with the procedures outlined in Section 117 of WIA. DWD does not pre-evaluate these selections but does bind the grant recipient (or sub-recipient) contractually to the equal opportunity provisions of Section 188 and 29 CFR Part 37. Once under contract their status changes to that of “recipient” of WIA Title I financial assistance and their equal opportunity compliance is monitored by the State.
A fiscal monitoring of each local area and non-formula sub-recipient is conducted annually by the Fiscal Section of the Division of Workforce Development. The Fiscal Section looks at each local area subcontract and will include in their review a check to ensure that assurances of compliance with the EO provisions of WIA are included. As previously described, the Field Services unit monitors each sub-recipient to ensure that applicants and participants are aware of the complaint and grievance procedures and utilizes the Toolbox system to evaluate whether services are provided equitably to the protected segments. The Division utilizes the services of the Missouri Division of Vocational Rehabilitation to monitor architectural accessibility. Each One-Stop Career Center is reviewed annually for ADA compliance and the findings and recommendations of the monitor are presented to the Missouri Training and Employment Council (State Board).
Imposing Sanctions and Corrective Actions for Violations
When a sub-recipient is found to have violated the equal opportunity provisions of WIA, the Division first asks them to develop and implement a corrective action plan. For minor violations (i.e., less than 1% error rate in participants receiving complaint and grievance procedures, one segment being underserved by one or two individuals) this may be limited to correcting the instances and providing a written explanation as to procedures to ensure that the violation does not reoccur. As the violations become more severe, the corrective action becomes broader and might include, but not be limited to technical assistance, diversity training and probation. If the violations are substantial, unresolved and reoccurring, the Division will cancel the contract and might request the sub-recipients debarment from receipt of federal contracts.
Ensuring Policy Development, Communication and Training
Most local area policies are included in their WIA 5-Year Plan and are reviewed by the Division and the State Board. The Field Services unit will review policies not included in the 5-Year Plan or developed by sub-recipients other than those that are formula funded, to ensure that they do not negatively impact the provision of WIA services to protected segments. Field Services will also review sub-recipient brochures and other communication materials that are ordinarily distributed or communicated in written and/or oral form, electronically and/or on paper, to staff clients, or the public at large to ensure that they indicate that they are an “equal opportunity employer/program” and that “auxiliary aids and services are available upon request to individuals with disabilities.” The State EO officer will be responsible for training/professional development opportunities for local EO officers and will require them to report other training efforts, at the local level, at least annually.
As noted above, most local area policies are included in their WIA 5-Year Plans that are reviewed by the Division and the State Board. A part of this review is to ensure those policies do not conflict with the equal opportunity provisions of the law. As part of the annual reviews, Field Services staff regularly inquire about sub-recipients' policies and procedures. The Field Services staff is aware of the prohibited grounds and is able to ascertain when policies or procedures impact recruitment and services in these areas. If the policy or procedure is in writing, the staff person will obtain a copy to verify the suspected violation. When such policies or procedures are found, the Division requires a corrective action plan to alleviate the violation.
In an effort to foster greater cooperation with sub-recipients and among One-Stop partners, Missouri has instituted a continuous improvement policy that entails jointly developing corrective action plans with sub-recipients rather than utilizing formal reports that are often considered to be chastisements. In this system, monitoring findings are reported orally during the exit conference and initial corrective action steps are outlined. The local area is responsible for developing the corrective action plan and a Field Services staff person assigned to that local area follows-up with the sub-recipient on a regular basis to ascertain the progress of the corrective action plan. In instances where violations are severe and corrective action is not implemented expeditiously, a letter is written to the Chief Elected Official and the WIB Chair outlining the issues and sanctions that will be instituted if they are not corrected. The Manager of the Field Services section signs this letter.
The Field Services Unit, the Fiscal Section of DWD and the local EO officers all have roles to play in review of local equal opportunity activities. The Field Services Unit will review such elements as equitable services levels, notifications, policies and procedures and customer notification of rights. The Fiscal section will review local assurances. The State EO officer will coordinate the overall review effort and will submit local reports and activity logs, as required, to CRC. Local EO officers will conduct reviews of local sub-recipients and maintain logs and records.
All WIA Title I recipients will be reviewed annually. The DWD Field Services Unit conducts annual monitoring/evaluation reviews. The proposed schedule for PY ’05 is attached.
After reviewing each region, the Field Services unit produced a Summary Report that included a section on Diversity. The Diversity section from each regional report has been copied and printed in the form of a single report entitled “the Continuous Improvement Review Diversity Summary."
Documentation
Attachments for Element 7
Monitoring Recipients for Compliance
VII-A Program Year 2005 Monitoring Schedule
VII-B DWD Issuance 02-01 – Sub-state Monitoring Requirements and CIR Diversity Summary
VII-C Report - DWD Continuous Improvement Reviews PY 2000 |