New Mexico Register
/ Volume XXIX, Issue 11 / June 12, 2018
TITLE
11 LABOR AND WORKERS’
COMPENSATION
CHAPTER 2 JOB
TRAINING
PART 21 WORKFORCE
INNOVATION AND OPPORTUNITY ACT GRIEVANCE AND
COMPLAINT
RESOLUTION PROCEDURES
11.2.21.1 ISSUING AGENCY: New Mexico Department of Workforce Solutions (DWS)
[11.2.21.1
NMAC - N, 7/1/2018]
11.2.21.2 SCOPE: State workforce development board (state
board), department of workforce solutions (DWS), chief elected officials (CEOs),
local workforce development boards (local boards), local workforce system
administrative entities (local administrative entities), workforce system
sub-recipients, and workforce system partners.
[11.2.21.2
NMAC - N, 7/1/2018]
11.2.21.3 STATUTORY
AUTHORITY: Title I of the Workforce Innovation and
Opportunity Act (WIOA) 29 USC Subchapter I of Chapter 32, and 50-14-1
et seq. 1978
NMSA.
[11.2.21.3
NMAC - N, 7/1/2018]
11.2.21.4 DURATION:
Permanent.
[11.2.21.4
NMAC - N, 7/1/2018]
11.2.21.5 EFFECTIVE
DATE: July 1, 2018, unless a later date is cited at
the end of a section.
[11.2.21.5
NMAC - N, 7/1/2018]
11.2.21.6 OBJECTIVE: To establish procedures for processing
grievances and complaints as required by WIOA.
These procedures apply to all levels of the New Mexico workforce system
and covers equal opportunity (EO) requirements, discrimination EO grievances,
state and local WIOA complaints, and criminal fraud and abuse.
[11.2.21.6
NMAC - N, 7/1/2018]
11.2.21.7 DEFINITIONS:
29 C.F.R. Section 37.4 contains the
definitions of the terms used in the implementation of nondiscrimination and
equal opportunity requirements of WIOA. For convenience, some of the definitions found
in that section are listed below. If a conflict exists between terminology, as defined
in this policy and 29 C.F.R. Section 38.4, the definition in 29 C.F.R. Part 38.4
is controlling.
A. Applicant. An individual who
is interested in being considered for any WIOA Title I-financially assisted aid,
benefit, service, or training by a recipient, and who has signified that
interest by submitting personal information in response to a request by a
recipient.
B. Participant. An individual who has been determined to be
eligible to participate in and who is receiving aid, benefit, service, or
training under a program or activity financially assisted in whole or in part
under Title I of WIOA. “Participant”
includes, but is not limited to, individuals receiving any service(s) or
benefit(s) under state unemployment insurance programs.
C. Recipient. An entity to which financial assistance under WIOA
Title I is extended, directly from DWS, or through the
governor or another recipient (including any successor, assignee, or transferee
of a recipient). The term excludes any
ultimate beneficiary of the WIOA Title I-financially assisted program or
activity. In instances in which a
governor operates a program or activity, either directly or through a state
agency, using discretionary funds apportioned to the governor under WIOA Title
I (rather than disbursing the funds to another recipient), the governor is also
a recipient. In addition, for the
purposes of this part, one-stop partners, as defined in Section 121(b) of WIOA,
are treated as “recipients”, and are subject to the nondiscrimination and equal
opportunity requirements of this part, to the extent that they participate in
the one-stop delivery system. Recipients
are listed in 29 CFR 38.44(zz).
D. Retaliation.
Retaliation means discharging, intimidating, threatening, coercing, or
discriminating against any individual because the individual has:
(1) filed a complaint alleging a violation of Section 188 of
WIOA or 29 CFR Part 38;
(2) opposed
a practice prohibited by nondiscrimination and equal opportunity provisions of
WIOA or 29 CFR Part 38;
(3) furnished
information to, or assisted or participated in any manner, in an investigation,
review, hearing, or any other activity related to the following:
(a) Administration
of the nondiscrimination and equal opportunity provisions of WIOA, 29 CFR Part 38, or 11.2.21.1 NMAC et seq;
(b) Exercise
of authority under those provisions;
(c) Exercise
of privilege secured by those provisions; or
(d) Otherwise
exercised any rights and privileges under the nondiscrimination and equal
opportunity provisions of WIOA or 29 CFR Part 38.
[11.2.21.7
NMAC - N, 7/1/2018]
11.2.21.8 BACKGROUND: Section 188 of WIOA prohibits
discrimination on the basis of race, color, religion, sex, national origin,
age, disability, or political affiliation or belief or, for any beneficiaries,
applicants, and participants only, on the basis of citizenship status as a
lawfully admitted immigrant authorized to work in the United States or for
participation in a WIOA Title I financially assisted program or activity. The
federal regulations (29 C.F.R. Part 38) clarify the application of the
nondiscrimination and equal opportunity provisions of WIOA and provide uniform
procedures for implementing them. Examples
of discriminatory acts specifically prohibited, other than those based on a
disability, are set forth in 29 C.F.R. Sections 37.6. The regulatory
requirements associated with employment practices and communications with
individuals with disabilities are set forth in 29 C.F.R. Sections 38.12 through
38.17.
[11.2.21.8
NMAC - N, 7/1/2018]
11.2.21.9 EQUAL OPPORTUNITY REQUIREMENTS: References include the following: Workforce Innovation and Opportunity
Act (WIOA), 29 CFR, Part 38, 20 CFR Section 667.275, 20 CFR Section 667.600(g)(1)(2) and Training and Employment Information Notice
(TEIN) No. 16-99.
A. Recipient requirements. Recipients of WIOA Title I
federal financial assistance have basic requirements
which are summarized as follows.
(1) designate an equal employment opportunity
officer;
(2) communicate equal employment opportunity policy
and train staff to carry it out;
(3) review all contracts, plans, and agreements
for equal opportunity;
(4) make efforts to provide equitable services
among substantial segments of the eligible population;
(5) ensure program and site access to individuals
with disabilities;
(6) collect and maintain data to examine
discrimination;
(7) monitor recipients for compliance;
(8) receive and process discrimination
complaints; and
(9) obtain corrective action or apply
sanctions for violating nondiscrimination requirements.
B. Annual self-appraisal. All WIOA recipients shall
perform an annual self-appraisal to ensure and document compliance with the
above listed requirements. This will include completion by each local board and
service providers of the five accessibility checklists,
set forth in USDOL training and information notice no. 16-99, available on the
web at: www.doleta.gov/directives.
[11.2.21.9
NMAC - N, 7/1/2018]
11.2.21.10 DISCRIMINATION AND EQUAL
OPPORTUNITY GRIEVANCE:
A. Equal opportunity complaints.
(1) WIOA prohibits discrimination on the
basis of race, color, religion, sex (including pregnancy, childbirth, and
related medical conditions, transgender status, and gender identity),national
origin (including limited English proficiency), age, disability, political
affiliation or belief, and for beneficiaries, applicants, and participants
only, on the basis of either citizenship status or participation in any program
or activity that received financial assistance under WIOA Title or 29 CFR Part
38. Sexual harassment is a prohibited
form of sex discrimination.
(2) Any
person who believes that he or she, or any specific class of individuals, has
been or is being subjected to discrimination or retaliation prohibited by WIOA
or its implementing regulations may file a written complaint, either
individually or through an authorized representative.
(3) The
discrimination complaint processing procedures shall be completed and a written
notice of final action issued within 90 calendar days from the date the
complaint was filed.
(4) To
the extent possible and permitted by law, the confidentiality of information
obtained as a result of the processing or investigation of a complaint will be
maintained and will only be provided to those persons who have a legitimate
need to know in order to achieve a timely resolution of the complaint. Even if an individual who makes an initial
report of suspected discrimination or harassment ultimately decides to not file
a formal complaint, it may still be necessary for the state or local
administrative entity, service provider, one-stop operator, the state-level EO
officer or the local area EO officer to investigate the matter in order to
protect other applicants or participants from discrimination and harassment.
(5) Reprisal
or retaliation against any individual for making a complaint of unlawful
discrimination or for using, cooperating, or participating in the complaint
process, including serving as a witness, is prohibited. Any person or persons engaging in retaliation
are subject to disciplinary action, up to and including termination from
employment.
(6) Both
the complainant and respondent have the right to be represented by an attorney
or other individual of their choice at their own expense throughout the
complaint process.
B. Time and place for filing complaint.
(1) Discrimination complaints shall be
filed with a state or local administrative entity, service provider, one-stop
operator, the state-level EO officer, a local area EO officer, or with the Director
of the Civil Rights Center (CRC), USDOL, 200 Constitution Ave NW, Room N-4123, Washington, DC 20210.
(2) Discrimination
complaints shall be filed within 180 days of the alleged discrimination.
However, a complainant may petition the director of the civil rights center for
an extension of the filing time.
(3) The date of filing of any discrimination complaint shall be:
(a) if the
complaint is sent by mail, the postmark date on the envelope in which the
complaint is mailed;
(b) if the
complaint is sent via commercial courier service, the date on which the courier
service records that it received the complaint;
(c) if the
complaint if sent by fax, the transmittal date recorded on the complaint;
(d) if the
complaint is sent by electronic mail, the date that it is date stamped on the
e-mail; or
(e) in the absence of any of the above,
the date on which the complaint is received by the state or local
administrative entity, service provider, one-stop operator, state-level EO
officer, or local area EO officer.
C. Complaint requirements:
Each complaint must be in
writing and contain the following information:
(1) The complainant’s name, mailing
address, telephone number (if any), and e-mail address (if available);
(2) The identity of the respondent, i.e.
the individual or entity that the complainant alleges is responsible for the
discrimination;
(3) A description of the complainant’s
allegations. This description must
include enough detail to allow the recipient or the CRC director, as
applicable, to determine whether:
(a) the CRC or
the recipient, as applicable, has jurisdiction over the complaint;
(b) the
complaint was filed in time; and
(c) the complaint has apparent merit; in
other words, whether the complainant’s allegations, if true, would indicate a
violation of the nondiscrimination and equal opportunity provisions of Title I
of WIOA or 29 CFR Part 38.
(4) The signature of the complainant
or complainant’s representative.
D. Initial complaint processing
procedures.
(1) Logging of complaints. All complaints shall be logged.
(a) For complaints filed with a service
provider, one-stop operator or local area EO officer, it shall be the local
area EO officer’s responsibility to log the complaint.
(b) For complaints filed DWS, or the
state-level EO officer, it shall be the state-level EO officer’s responsibility
to log the complaint;
(c) All equal opportunity complaint logs
shall include the following information:
the name and address of the complainant; the basis of the complaint; a
description of the complaint; the disposition and date of disposition of the
complaint; and any other pertinent information.
(d) Each local EO officer shall transmit
copies of its equal opportunity logs for their corresponding local workforce
development area to the state-level EO officer on a monthly basis and shall do
so no later than 10 calendar days after the last day of the month the log
covers.
(e) The state-level EO officer will
compile and maintain copies of all complaint logs submitted in order to carry
out the recordkeeping and monitoring activities required under WIOA and 29 CFR
Part 38.
(2) Determining jurisdiction. Jurisdiction must be determined within five
business days of the date the complaint is received. In order for a recipient to have jurisdiction
to process a discrimination complaint, each of the following elements must be
met:
(a) the
respondent against whom the complaint was field must be a WIOA recipient;
(b) the
complaint must allege a basis for discrimination that is prohibited by WIOA,
including unlawful retaliation; and
(c) the
complaint was filed within 180 calendar days of the alleged discrimination.
(3) Who determines jurisdiction.
(a) if the
complaint is filed with the local administrative entity, service provider,
one-stop operator, or local area EO officer, then the local area EO officer is
responsible for determining jurisdiction.
(b) if the
complaint is filed with DWS or the state-level EO officer, then the state-level
EO officer is responsible for determining jurisdiction.
(4) Notice of lack of jurisdiction. If a determination is made that there is no
jurisdiction to process the complaint, the EO officer (state-level or local
area) making the determination shall send a written notice of lack of
jurisdiction to the complaint that includes the reason for the determination
and notice that the complainant has the right to file a complaint directly with
the civil rights center within 30 calendar days from receipt of the notice of
lack of jurisdiction. The written notice
of lack of jurisdiction must be sent within five business days of the date that
the complaint is received.
(5) Joint jurisdiction.
Where the complaint alleges
discrimination by a WIOA recipient, or service provider on a basis that is
prohibited by both WIOA and by a civil rights law independently enforced
by that WIOA recipient or service provider, the complaint shall be referred to
that WIOA recipient or service provider for processing under their procedures.
For example, WIOA prohibits discrimination on the basis of national origin. If
a discrimination complaint on the basis of national origin is made against a WIOA
recipient or service provider and they are also prohibited from discriminating
on the basis of national origin, then the complaint will be referred to them
for processing according to their own procedures. The state-level or local area EO officer
making the determination that joint jurisdiction exists is responsible for
making written referral of the complaint to the WIOA recipient or service
provider and sending written notice of the referral to the complainant within
five business days of the date that the complaint is received.
(6) Sole jurisdiction.
Where the complaint alleges
discrimination by a WIOA recipient or service provider on a basis that is
prohibited by WIOA and is not covered by a civil rights law independently
enforced by that WIOA recipient or service provider (e.g., political
affiliation or belief, citizenship or participation in WIOA Title I), the
complaint shall be processed by that WIOA recipient or service provider under
these procedures. When it is determined that WIOA has sole jurisdiction over
the discrimination complaint, the complaint will be referred to the state-level
EO officer within five business days of the date that the complaint is
received.
(7) Within
10 business days of the date that the complaint was filed, the state-level EO
officer shall conduct an initial review of the complaint and issue an initial
notice in writing to the complainant containing the following information:
(a) an acknowledgement that the recipient has received the
complaint;
(b) notice that the complaint process shall be completed and a
written notice of final action issued within 90 calendar days from the date the
complaint was filed;
(c) notice that the complainant has the right to be represented
in the complaint process;
(d) a copy of the “equal opportunity is the law” statement;
(e) notice
that the complainant has the right to request and receive, at no cost,
auxiliary aids and services, language assistance services, and that this notice
will be translated into non-English languages upon the complainant’s request;
(f) a list of issues raised in the complaint;
(g) for each issue raised in the complaint, a statement whether
the recipient will accept the issue for investigation or reject the issue, and
the reasons for the rejection;
(h) a statement that the complainant has the right to elect
resolution of their complaint through alternative dispute resolution (ADR), at
the complainant’s sole option;
(i) a statement that, if the complainant
does not desire to use ADR, he or she must notify the state-level officer of
that fact within 10 business days of the issuance of the state-level EO
officer’s initial letter acknowledging receipt of the complaint; and
(j) a statement that retaliation against any individual for
filing a complaint or cooperating with an investigation is unlawful and
prohibited.
(8) Alternative Dispute Resolution (ADR). The complainant may, but is not required to,
attempt to resolve their complaint through ADR.
(a) the choice whether to use ADR rests with the complainant;
(b) the
complainant must notify the state-level EO officer of his or her election to
use ADR within 10 business days of the issuance of the state-level EO officer’s
initial letter acknowledging receipt of the complaint;
(c) if the complainant requests to use ADR for resolving the
complaint, the state-level EO officer will request a mediator and monitor the
processing of the complaint. The mediator
will schedule mediation by written notice, mailed to all interested parties at
least 7 calendar days prior to the first mediation session. The notice will include the date, time, and
place of the mediation. The mediation
process shall be concluded within 45 calendar days from the date the complaint
was filed. The complaint is considered
resolved when all parties to the complaint enter into a written agreement
resolving the issues raised in the complaint.
The written agreement shall give notice that if the terms of the
agreement are breached, the non-breaching party may file a complaint with the
director of the CRC within 30 calendar days of the date the non-breaching party
learns of the breach.
(d) if the parties do not reach an agreement, the state-level EO
officer will proceed to investigate the circumstances underlying the complaint
under these procedures.
(9) Fact-finding
and investigation.
(a) Unless
the complainant has notified the state-level EO officer that the complainant
desires to attempt a resolution of their complaint through ADR, the state-level
EO officer shall investigate the circumstances underlying the complaint. The investigation may include, but is not
limited to, interviewing the complainant, the respondent, and any witnesses
included in the complaint or who become known through the investigation
process; reviewing documents and other evidence; and conducting site visits.
(b) The
state-level EO officer has the power to make written request of any entity to
which financial assistance under WIOA Title I is extended to produce records or
documents that are potentially relevant to the investigation of the complaint.
(c) The
entity to which financial assistance under WIOA Title I is extended shall
produce such records or documents requested by the state-level EO officer
within 10 days of the request. Failure
by the entity to comply with the state-level EO officer’s request for records
could negatively impact its eligibility for financial assistance under WIOA Title
I in future grant cycles.
(d) If
at any stage in the investigation the state-level EO officer investigating the
complaint has a reasonable belief that immediate action is necessary to protect
any involved parties from harm, the appropriate members of management shall be
notified and actions deemed appropriate will be taken.
(e) Within
90 days of the date that the complaint was filed, the state-level EO officer
shall complete his or her investigation and issue a notice of final action.
(f) If
at any time during the processing of a complaint it becomes apparent the
state-level EO officer has a conflict of interest with respect to the complaint
which would make it improper for him or her to conduct or participate in the
investigation, the cabinet secretary of DWS, as the governor’s designee with
respect to enforcement of nondiscrimination and equal opportunity provisions of
WIOA, shall appoint an alternate qualified individual to process, investigate
and make a determination on the complaint.
(10) Notice
of final action. The notice of final
action shall contain the following information:
(a) For
each issue raised in the complaint, a statement of
either: the decision on the issue and an
explanation of the reasons underlying the decision based on the findings of the
investigation or; if the parties elected to use ADR to resolve the complaint, a
description of the way the parties resolved the issue; and
(b) Notice
that the complainant has a right to file a complaint with the director of the
CRC within 30 days of the date in which the notice of final action is received
if the complainant is dissatisfied with the notice of final action.
(c) The
notice of final action shall be sent to:
the complainant; DWS; and in the case of a complaint involving a
recipient, service provider, one-stop operator or other entity under the
jurisdiction of a local workforce development board, the local workforce
development board, which shall treat all information related to the complaint
or contained in the notice of final action with utmost confidentiality.
[11.2.21.10
NMAC - N, 7/1/2018]
HISTORY OF 11.2.21 NMAC:
History of Repealed Material:
11.2.15
NMAC, Workforce Investment Act (WIA) Grievance Procedures, filed 6-23-2000 -
Repealed effective 12-31-2005.
11.2.21
NMAC, WIA Technical Assistance and Corrective Action - Local Workforce
Development Board Failure to Meet Performance, filed 12-15-2005 - Repealed
effective 8-15-2012.
11.2.26
NMAC, WIA Program Complaint Resolution Procedures and Procedures for Reporting
Criminal Fraud and Abuse, filed 12-15-2005 - Repealed effective 8-15-2012.
11.2.27
NMAC, WIA Equal Opportunity Requirements and Discrimination Complaint Resolution
Procedures, filed 12-15-2005 - Repealed effective 8-15-2012.
11.2.27
NMAC, WIA Equal Opportunity Requirements and Discrimination Complaint
Resolution Procedures, filed 8-15-2012 - Repealed effective 7-1-2018.