I.
GENERAL PROVISIONS
A. Based on the work evaluation, a Family
Contract Amendment will be developed which will reflect the participant's
employment service needs and will include necessary and available support
services.
B. ASPIRE-TANF will pay
for services necessary to complete the Family Contract Amendment only when
those services cannot be funded from other sources and only as long as funding
is available for those services. ASPIRE-TANF will purchase the least expensive
quality service necessary to meet the participant's needs.
C. ASPIRE-TANF will provide participants with
information on post-employment services provided by the Department of Health
and Human Services.
II.
TYPES OF EMPLOYMENT SERVICES
A.
ASPIRE-PLUS (also known as On-The-Job Training, or OJT) -
Occupational skills training provided by an employer to a trainee while the
trainee is engaged in productive work resulting in the development of
knowledge, skills and abilities essential to the adequate performance of a job.
OJT is a "hire first" activity. The trainee is a bona fide employee who is
afforded the same wages, benefits and rights as those who are similarly
employed by that employer. Retention in unsubsidized employment is expected.
Details of the wage reimbursement and other conditions are set forth in III.A.
of this section.
B.
Apprenticeship - Occupational skills training provided on site by
an employer to a trainee while the trainee is engaged in productive work and
academic studies in subjects related to the trade, both resulting in knowledge,
skills and abilities essential to the adequate performance of a job.
ASPIRE-TANF will work cooperatively with the Department of Labor, Bureau of
Employment Services, to encourage the development of apprenticeships.
C.
Self-Employment - Involvement
in an enterprise where the participant has direct control over the type and
amount of service or product produced. ASPIRE-TANF will provide information so
that participants interested in self-employment may explore that
option.
D.
Non-traditional
Employment - Employment in occupations or fields of work where women (or
men) comprise less than 25 percent of the individuals employed in such
occupations or fields of work.
E.
Full-Time Employment - working in a position for 30 or more hours
per week, with a wage of at least Maine's minimum wage per hour.
III.
PROCEDURES
A.
ASPIRE-PLUS (On-The-Job Training)
Procedures
In addition to all contractual standards otherwise required
by state law, ASPIRE-TANF will adhere to the following procedures in developing
and implementing ASPIRE-PLUS (OJT):
1.
All ASPIRE-PLUS contracts are to be negotiated on an individual basis taking
into account the participant's and employer's needs.
2. No contract may be written for an
occupation for which the participant has related education, training and
experience, which fully qualifies her for that occupation.
3. The rate of reimbursement shall not exceed
an average of 50 percent of the wages (not benefits) paid to the trainee during
the contract period. Reimbursement rates may be below the 50 percent average if
the participant has documented competency to perform specific tasks, or
vocational aptitudes or abilities within a specific occupation, but is not
fully qualified. Reimbursements may only be for actual time worked by the
trainee.
4. The training length
will be determined by using the Dictionary of Occupational Titles, Standard
Vocational Training Code, except that no contract will be less than four (4)
weeks nor longer than twenty-six (26) weeks in duration.
5. ASPIRE-TANF will use a standard
ASPIRE-PLUS (OJT) contract document which incorporates the payment schedules,
job description and terms and conditions therein by reference.
6. The trainee in ASPIRE-PLUS will be
considered to be in employment and not in training, and therefore will be
eligible for support services as would any employed participant. This would
include employment support services and/or transitional services as appropriate
and in accordance with ASPIRE-TANF and TANF eligibility rules.
7. Satisfactory progress will be documented
by an employee appraisal conducted by the employer at the half-way point of the
contract. If the employer states that the participant is not making
satisfactory progress, ASPIRE-TANF will counsel and advise the employee to help
improve performance.
8. The
employer must notify ASPIRE-TANF of any employee problems which could
eventually lead to dismissal. ASPIRE-TANF will counsel and advise the employee
on how to resolve the problems, but it shall not interfere with the
employer/employee relationship.
9.
ASPIRE-PLUS participants must receive a copy of the training outline and/or job
description.
10. ASPIRE-PLUS
contracts must be monitored in accordance with the standard schedules and
requirements of these rules.
11. In
no case will the ASPIRE-PLUS wage be less than the State's minimum
wage.
12. No ASPIRE-PLUS Contract
will be written that results in displacement or partial displacement (including
reduction of hours, wages and benefits) of currently employed workers, nor
shall an ASPIRE-PLUS contract be written for a position where any worker is on
layoff from the same or a substantially equivalent job, or for a job from which
a worker has been bumped and has recall rights.
13. No ASPIRE-PLUS Contract can be written
for positions that are intermittent, seasonal or solely
commission-based.
14. No firm or
industry in violation of local, State or Federal laws will be eligible for an
ASPIRE-PLUS contract.
15. The
Equal Employment Opportunity (EEO) and Americans with
Disabilities Act (ADA) policies of the prospective ASPIRE-PLUS
employer should be assessed to determine if the training will be conducted in a
responsive setting and the prospective employer is in compliance with EEO and
ADA regulations.
16. The
ASPIRE-PLUS employer will agree to maintain the confidentiality of any
information regarding ASPIRE-TANF participants or their immediate families
which may be obtained through employee forms, interviews, tests, reports from
public agencies or counselors, or any other source. Without the permission of
the participant, such information shall be divulged only as necessary for
purposes related to the performance or evaluation of the contract and to
persons having responsibilities under the contract.
B.
Apprenticeship Procedures
For ASPIRE-TANF participants who choose occupations that are
apprenticeable, ASPIRE-TANF will advocate with Department of Labor's Bureau of
Employment Services to obtain an apprenticeship. The Department of Labor's
rules and regulations regarding apprenticeship will apply.
C.
Self-Employment Procedures
An assessment will be done by the ASPIRE-TANF case manager
initially to determine the fiscal viability of the self-employment business. A
referral to a business counseling service, using the vocational evaluation
criteria found in section
14, II. N. if payment for services is
required, may be made at that time to provide information to the case manager
that will enable ASPIRE-TANF to support (or not support, as the case may be)
the self-employment enterprise. In order for the self-employment to be
considered full-time for purposes of participation in approved ASPIRE-TANF work
activities, the participant must be working in the self-employment enterprise
for a minimum of thirty (30) hours a week. The Deficit Reduction Act of
2005 states that the only hours of participation of self-employment
that can be reported are determined by dividing "Gross income minus business
expenses by minimum wage". It is the expectation that participants work on
their self-employment venture a minimum of 30 hours a week, regardless of the
hours that can be reported. The number of "activity" hours will be included in
the participant's FCA.
After the self-employment business has been in operation for
six months, it is expected that the business be making a net profit equal to 30
hours per week at the current Federal minimum wage. If the participant's
self-employment activity does not meet this criteria, then the participant may
be referred to appropriate business counseling services in order to work on,
and correct, deficiencies in the business plan, and to improve the chances of
success for the business. If the business plan is determined by the business
counseling service to not be realistic or financially viable, ASPIRE-TANF will
require the participant to be involved in another approved activity for the
required number of hours of participation per week. If the business plan is
approved by the counseling service there will be a review of the business in
six months. If the self-employment enterprise is not making a net profit equal
to 30 hours per week at the current Federal minimum wage, then said
self-employment business will be determined to not be a viable business, and
the participant will be required to participate in another approved ASPIRE-TANF
activity in order to meet the requisite number of hours.
Verification of the income received by the business will be
accomplished by the participant providing relevant business records, such as
tax filing forms and monthly profit/loss statements, to ASPIRE-TANF for use in
determining the financial status of the business.
ASPIRE-TANF will adhere to the following procedures in
assisting participants with self-employment:
1. ASPIRE-TANF will provide participants the
necessary support services in accordance with Section
14 of this manual to engage in
self-employment if the following criteria are met:
a. The participant has a business plan
approved by a business counselor who agrees the business has a reasonable
chance of success;
b. The
participant is engaged in the self-employment enterprise a minimum of 30 hours
a week; and
c. The compensation
from the self-employment enterprise must equal Federal minimum wage times 30
hours a week (net profit) by the time the business has been in operation for 12
months.
2. If the
participant is referred to a business counselor and refuses to obtain the
information or attend training needed to obtain the information, ASPIRE-TANF
will not support the self-employment venture and will require the participant
to set another viable employment goal and participate in another work
activity.
D.
Non-traditional Employment Procedures
ASPIRE-TANF will adhere to the following procedures in
assisting participants with nontraditional employment:
1. ASPIRE-TANF will make available to
participants information regarding the advantages of nontraditional
occupations.
2. For participants
who are interested in nontraditional employment, ASPIRE-TANF will provide the
necessary program services.
E.
Suitable Employment
The criteria for suitable employment applies to all types of
employment, both full and part-time. The criteria is as follows:
1. The employment is within the scope of the
participant's Family Contract Amendment;
2. The employment pays at least the Maine
minimum wage;
3. The employment
results in the participant's family experiencing no net loss of cash
income;
4. The daily hours of work
and the weekly hours of work do not exceed those customary to the occupation;
5. The employment is not dangerous
to health or safety of the participant;
6. Daily commuting time does not exceed a two
hour round trip commute;
7. The
participant is physically and/or mentally able to do the job;
8. The participant is not required to join or
quit a union;
9. There is not a
legal strike or lock-out or other bona fide labor dispute at the work
site;
10. The job or work hours do
not interfere with the participant's religious beliefs;
11. Child care resources necessary for
participation in employment are available; and 12. The employment offered does
not interrupt a program in progress under an approved Family Contract
Amendment.
IV.
DISPLACED EMPLOYEE
GRIEVANCES
A. Permanent employees of a
business or organization where an ASPIRE-TANF participant has been placed in
ASPIRE-PLUS, TEMP or Field Training who feel they have been unlawfully
displaced by that participant shall have a right to conciliation and grievance
proceedings.
B. An employee
claiming displacement is limited to the following circumstances:
1. A reduction in hours of non-overtime wages
or employee benefits;
2. Impairment
of contracts for services or bargaining agreements;
3. Filling of a position by an ASPIRE-TANF
participant when any other person is on layoff from that position or a
substantially equivalent position within the same business or
organization;
4. Infringement of
promotional opportunities; or
5.
Filling of a previously unfilled vacancy by an ASPIRE-TANF participant while
there is an employee of the organization who is qualified for, and has
expressed interest, in the position.
C. A request for a dispute resolution must be
filed in writing with the Department of Health and Human Services' Office of
Administrative Hearings, State House Station #11, Augusta, Maine 04333, within
thirty (30) days of the employee discovering he/she has allegedly been
displaced and the ASPIRE-TANF participant is still at the employee's place of
employment.
The request must include:
1. The name, address and telephone number of
the employee;
2. The name of the
employee's supervisor;
3. The
name, address and telephone number of the business;
4. The name of the business owner or
supervisor;
5. The
division/location where the employee works;
6. The employee's job title and job
classification;
7. The name of the
ASPIRE-TANF participant who has allegedly displaced the employee; and
8. The reason the employee feels
that he/she has been displaced.
D. The Department of Health and Human
Services' Office of Administrative Hearings will, within 20 days of receipt of
the request, schedule in writing a Fair Hearing with the following parties.
1. ASPIRE-TANF Program Manager;
2. OFI Regional Program
Administrator;
3. ASPIRE-TANF Unit
Supervisor;
4. Displaced Employee;
and
5. Other appropriate
individuals as determined by the DHHS' Office of Administrative
Hearings.
E. The DHHS'
Office of Administrative Hearings will notify all parties to the dispute of the
following:
1. The time, place and date of the
hearing;
2. The name, business,
address, employment information about the grieving employee;
3. The nature of the alleged
grievance;
4. The citation of the
Federal regulations governing the hearing;
5. The relief that may be granted by the
presiding Officer;
6. The rights of
all parties;
7. A Statement that
the presiding Officer shall attempt to mediate a settlement between the parties
without resulting to a Hearing with a warning that the parties should be
prepared to proceed to a formal Hearing; and
8. A notice of the rights of the parties to
appeal to the U.S. Department of Labor.
F. On the date of the Conciliation, the
presiding Officer will attempt to mediate the dispute without resorting to a
formal Fair Hearing. If the presiding Officer determines that no resolution can
be reached, a formal Fair Hearing will be opened.
G. The proceedings may be dismissed if the
ASPIRE-TANF participant is no longer placed at the business or organization at
the time of Conciliation.
H. The
employee has the burden of proving that he/she has been displaced. The standard
of proof shall be clear and convincing evidence.
I. Parties of a Displaced Employee Grievance
have the following rights:
1. Timely and
adequate notice of the proceedings;
2. An opportunity to present evidence and
witnesses;
3. An opportunity to
challenge evidence and cross-examine witnesses;
4. An opportunity to be represented by
another person;
5. The right to
subpoena witnesses as in a Civil Procedure;
6. A decision based on the Conciliation
and/or Hearing record;
7. A
prohibition on "Ex parte Contracts"; and
8. A decision from the Conciliation and/or
Hearing within ninety (90) days of the closing of the
record.
J. If any party
to the proceedings is dissatisfied with the decision, they may appeal the
decision within twenty (20) days of receipt of the State's written decision to:
Office of Administrative Law Judges
U.S. Department of Labor
Vanguard Building, Room 600
1111 20th Street, NW
Washington, D.C. 20036
With copies of the appeal sent to:
Assistant Secretary of Family Support
U.S. Department of Health and Human Services
370 L'Enfant Promenade, SW 6th Floor
Washington, D.C. 20447
and
Assistant Secretary of Employment and Training
U.S. Department of Labor
200 Constitution Avenue, NW
Washington, D.C. 20210
K. The appeal must contain:
1. The full name, address and telephone
number of the appellant;
2. The
provision of the Social Security Act or regulations believed
to have been violated;
3. A copy of
the original complaint filed with the State; and
4. A copy of the State's findings and
decision regarding the appellant's complaint.
