New York Codes, Rules and Regulations
Title 18 - DEPARTMENT OF SOCIAL SERVICES
Chapter II - Regulations of the Department of Social Services
Subchapter B - Public Assistance
Article 4 - Services to Individuals
Part 385 - Public Assistance And Food Stamp Employment Program Requirements
Section 385.9 - Work activities and work requirements
Universal Citation: 18 NY Comp Codes Rules and Regs ยง 385.9
Current through Register Vol. 46, No. 12, March 20, 2024
(a) Social services districts may provide, and require applicants for and recipients of public assistance to participate in a variety of activities, including but not limited to the following:
(1) unsubsidized employment;
(2) subsidized private sector
employment;
(3) subsidized public
sector employment;
(4) work
experience in the public sector or non-profit sector, (including work
associated with refurbishing publicly assisted housing) if sufficient private
sector employment is not available as determined by the social services
official. The maximum number of hours a recipient or applicant may be required
to engage in this activity is limited to the number which equals the amount of
assistance payable with respect to the public assistance household of such
individual (inclusive of the value of food stamps received by the public
assistance household of such individual, if any) divided by the higher of (i)
the Federal minimum wage, or (ii) the State minimum wage. The limitation of the
number of hours of work experience to which a participant may be assigned is a
calculation of allowable hours in a work activity and does not mean that such
participant is receiving a wage for the performance of such activities. The
participant is not working off the grant, but is engaged in work activities as
an element of his/her plan to become self-sufficient;
(5) on-the-job training;
(6) job search and job readiness assistance,
as time limited by Federal law, provided that job search is an active and
continuing effort to secure employment, configured by the social services
official;
(7) community service
programs provided, however, the number of hours a participant in community
service activities authorized pursuant to this section may be required to work
in such assignment shall not exceed a number which equals the amount of
assistance payable with respect to the public assistance household of such
individual (inclusive of the value of food stamps received by the public
assistance household of such individual, if any) divided by the higher of (i)
the Federal minimum wage, or (ii) the State minimum wage. No participant shall
be assigned to a community service activity that conflicts with his/her bona
fide religious beliefs. The definition or parameters of this activity shall be
set forth in the local plan submitted by the social services district, provided
that an individual needed in the home because another member of the household
requires his/her presence due to a verified mental or physical impairment shall
be deemed to be engaged in community service to the extent such person is
actually providing care for such member of the household. The limitation of the
number of hours of community service to which a participant may be assigned is
a calculation of allowable hours in a work activity and does not mean that such
participant is receiving a wage for the performance of such activities. The
participant is not working off the grant, but is engaged in work activities as
an element of his or her plan to become self-sufficient. For purposes of
calculating the participation rate, recipients who are acting as foster parents
for children are deemed engaged in community service to the extent they are
actually providing care for such children;
(8) vocational educational training as time
limited by Federal law and pursuant to subdivision (c) of this
section;
(9) job skills training
directly related to employment;
(10) education directly related to
employment, in the case of a recipient who has not yet received a high school
diploma or a certificate of high school equivalency;
(11) satisfactory attendance at secondary
school or a course of study leading to a certificate of general equivalency in
the case of a recipient who has not completed secondary school or received such
certificate;
(12) provision of
child care services to an individual who is participating in community
service;
(13) job search and job
readiness assistance once the individual has exceeded the six week limit set in
Federal law;
(14) educational
activities pursuant to subdivision (c) of this section;
(15) other activities set forth in a local
district plan.
(b) Additional provisions.
(1) No participant
shall be required to provide child care services as a work activity described
in this Part unless the participant expressly requests in writing to provide
such services.
(2) Social services
districts may enter into agreements with public and private employment agencies
to assist recipients of public assistance to find jobs.
(3) No participant shall in any case be
required to engage in assigned activities for more than 40 hours in any
week.
(4) A non-graduate degree
student who is participating in a work-study, internship, externship, or other
work placement that is part of the curriculum of a student approved for
participation by the City University of New York (CUNY), the State University
of New York (SUNY), another degree granting institution, or any other
education, training or vocational rehabilitation agency approved by the State
or social services district, shall not be unreasonably denied the ability to
participate in such program as a work activity assignment made in accordance
with the provisions of this Part. A social services district may deny such
participation based upon consideration of factors including, but not limited
to:
(i) the determination that the student
voluntarily quit a job or reduced earnings to qualify for initial or increased
public assistance as determined in accordance with section
385.13
of this Part;
(ii) that a job or
on-the-job training position that is comparable to the work-study, internship,
externship or other work placement cannot reasonably be expected to exist in
the private, public, or not-for-profit sector;
(iii) that the student is not maintaining a
cumulative C average (or its equivalent), which may be waived by the district
for cases of undue hardship based on the death of a relative, the personal
injury or illness of the student or other extenuating circumstances as
determined appropriate by the district;
(iv) failure of the institution or student to
monitor and report to the social services district monthly, or as otherwise
reasonably required by the district, information regarding the student's
attendance and performance related to the work placement. Failure of the
institution to monitor and report student attendance and performance shall be
cause for the district to reasonably deny approval of the student's
participation in such programs as a work activity;
(v) failure of the student to progress toward
the completion of a course of study without good cause as determined by the
social services district; and
(vi)
that the student had previously enrolled in a work-study, internship, or other
work placement and failed to complete the work placement without good cause as
determined by the social services district.
(5) When a social services district assigns a
non-graduate student participating in a social services district approved
work-study, internship, externship or other work placement to work activities
in accordance with the provisions of this Part, the district shall make
reasonable efforts to assign the student to such activities during hours that
do not conflict with his or her academic schedule.
(6) The hours of participation by an
individual in a work-study, internship, externship or other work placement that
is part of the student's curriculum and that has been approved by the social
services district shall be included as a work activity within the definition of
unsubsidized employment, subsidized private sector employment, subsidized
public sector employment or on-the-job training pursuant to subdivision (a) of
this section.
(7) In no event shall
the programs and activities enumerated in this Part be deemed the sole
activities that a social services district may provide and require applicants
for and recipients of public assistance to engage in. Any program or activity
that meets the goals of this Part and is consistent with the requirements of
the Labor Law and Social Services Law shall be allowed.
(8) Any social services district that
establishes and provides a program or activity not herein enumerated shall set
forth the requirements and structure of such program or activity in its local
plan pursuant to the provisions of this Part.
(9) The social services district retains the
right to determine, consistent with statute and regulations, the activity or
activities to which an applicant or recipient is to be assigned.
(10) No particular assignment or opening for
any activity need be created except on the determination and consent of the
social services district.
(c) Educational activities and vocational educational training.
(1) A social services
official shall make available vocational educational training and educational
activities in accordance with an assessment conducted and the employability
plan prepared pursuant to the requirements of sections
385.6
and
385.7
of this Part. Such activities may include, but need not be limited to:
(i) vocational educational training, which
may include but not be limited to organized educational programs offering a
sequence of courses which are directly related to the preparation of
individuals for current or emerging occupations requiring other than a
baccalaureate or advanced degree. Such programs may include competency-based
applied learning which contributes to an individual's academic knowledge,
higher-order reasoning, and problem-solving skills, work attitudes, general
employability skills, and the occupational-specific skills necessary for
economic independence. Such term may also include applied technology education;
(a) when a social services district contracts
with a proprietary vocational school to provide vocational educational training
to individuals assigned in accordance with the provisions of this section, not
more than 25 percent of the duration of such program can be devoted to
preparation for a high school equivalency or to English as a second
language;
(b) instructors employed
by proprietary schools to prepare individuals for a high school equivalency
certificate shall meet experience requirements established in regulation by the
Commissioner of Education;
(c)
individuals in need of basic literacy programs shall be referred to basic and
remedial education rather than to vocational proprietary schools;
(ii) high school education or
education designed to prepare a participant for a high school equivalency
certificate;
(iii) basic and
remedial education;
(iv) education
in English proficiency;
(v) no more
than a total of two years of post secondary education (or the part-time
equivalent, if full-time study would constitute an undue hardship);
(a) such post-secondary education must be
necessary to the attainment of the participant's employment goal, as set forth
in the employability plan required pursuant to sections
385.6
and
385.7
of this Part. Such goal must relate directly to obtaining useful employment in
a recognized occupation;
(b)
enrollment may be in the following types of educational institutions:
(1) community colleges and two-year
colleges;
(2) four-year colleges;
provided, however, that the course of instruction for which an individual is
enrolled is limited to a two-year degree granting program;
(3) licensed trade schools; or
(4) registered business schools.
(2) Except
as otherwise provided in this subdivision and as resources permit and pursuant
to a local plan prepared in accordance with the requirements of section
385.10
of this Part, a social services official must assign to educational activities
an individual who has not attained 20 years of age and who has not obtained a
high school diploma or its equivalent.
(3) Notwithstanding the requirements of this
subdivision, an individual between the ages of 16 and 18 years of age may be
excused from school attendance requirements if:
(i) the decision not to require school
attendance is based upon an individual assessment which indicates that further
attendance is unlikely to result in attainment of a high school diploma or its
equivalent based upon consideration of the individual's aptitude and other
factors such as grade completion; and
(ii) he/she participates in either another
educational activity other than one which would lead to the attainment of a
high school diploma or its equivalent or in job skills training appropriate to
and designed for youths.
(4) Notwithstanding the requirements of this
subdivision, the social services official shall assign individuals 18 and 19
years of age to activities other than those described in this subdivision if
such official makes a determination, based upon an assessment and employability
plan that educational and vocational educational activities are not appropriate
or if such individual has failed to make satisfactory progress in educational
activities.
(5) An individual who
is assigned to educational activities consistent with the employment goals
identified in the employability plan developed pursuant to section
385.6
or
385.7
of this Part shall not be assigned to any other activity that might interfere
with attendance at class; provided, however, that a social services official
may periodically reevaluate an individual's employment plan and having given
due consideration to the individual's progress in the current, and if
applicable, prior program make assignments to other activities in order to meet
participation rates established in accordance with the provisions of section
385.8
of this Part.
(6) For individuals
assigned by the district to participate in educational activities pursuant to
this section and consistent with the individual's assessment and employability
plan, the district may report supervised homework time and up to one hour of
unsupervised homework time for each hour of class time, provided that the total
homework time reported for participation does not exceed the hours required or
advised by the respective educational program.
(7) An adult member of a two-parent family
may be required by a social services official to participate in education
activities consistent with the employment goals contained in his/her
employability plan.
(8) Nothing in
this subdivision shall be construed to supersede the eligibility requirements
of teen parents as set forth in this Title.
(d) Work experience.
(1) Work experience programs meeting State
and Federal requirements may be established by social services
districts.
(2) Work experience
programs may include the performance of work for a Federal office or agency,
county, city, village or town or for the State or in the operation of or in an
activity of a non-profit agency or institution.
(3) A recipient may be assigned to
participate in such work experience program only if:
(i) appropriate Federal and State standards
of health, safety and other work conditions are maintained;
(ii) the number of hours an individual
assigned to work experience activities authorized pursuant to this section may
be required to participate in such assignment shall not exceed a number which
equals the amount of assistance payable with respect to such individual's
household (inclusive of the value of food stamps received by such household, if
any) divided by the higher of:
(a) the
Federal minimum wage; or
(b) the
State minimum wage;
(iii) such recipients are provided
appropriate workers' compensation or equivalent protection for on-the-job
injuries and tort claims protection on the same basis, but not necessarily at
the same benefit level, as they are provided to other persons in the same or
similar positions, while participating in work experience activities under this
section;
(iv) the project to which
the participant is assigned serves a useful public purpose in fields such as
health, social services, environmental protection, education, urban and rural
development and redevelopment, welfare, recreation, operation of public
facilities, public safety and child day care;
(v) such assignment would not result in:
(a) the displacement of any currently
employed worker or loss of position (including partial displacement such as
reduction in the hours of non-overtime work, wages or employment benefits) or
result in the impairment of existing contracts for services or collective
bargaining agreements;
(b) the
assignment of a participant or the filling of a position when any other person
is on layoff from the same or any equivalent position or the employer has
terminated the employment of any regular employee or otherwise reduced its
workforce with the effect of filling the vacancy so created with a participant
assigned pursuant to this section;
(c) any infringement of the promotional
opportunities of any currently employed person;
(d) the performance, by such participant, of
a substantial portion of the work ordinarily and actually performed by regular
employees;
(e) the loss of a
bargaining unit position as a result of work experience participants
performing, in part or in whole, the work normally performed by the employee in
such position; or
(f) such
assignment is not at any work site at which the regular employees are on a
legal strike against the employer or are being subjected to lock out by the
employer.
(4)
Public employers participating in work experience programs (or the social
services official, pursuant to an agreement established between any such
employer and the social services official) shall publish on a monthly basis a
report summarizing the employer's work experience program for the month.
(i) Such monthly report shall include, at a
minimum, summary information regarding the agencies or departments where
participants are assigned, work locations, job duties and assignments, hours
worked and period worked and shall be provided to the certified collective
bargaining representative of public employees at such employer and may not be
disclosed to any other party.
(ii)
Such certified collective bargaining representative shall take reasonable steps
to protect the confidentiality of such information and shall take reasonable
steps to prevent disclosure of same to non-authorized persons.
(iii) Reports provided pursuant to this
section shall contain a warning against re-disclosure and asserting the
confidentiality of the information therein provided.
(5) In assigning to work experience a
recipient who is a non-graduate student attending CUNY, SUNY or other approved
non-profit education, training or vocational rehabilitation agency, the social
services district shall:
(i) after
consultation with officials of CUNY, SUNY or other non-profit education,
training or vocational rehabilitation agency, assign the student to a work
experience site on campus where the recipient is enrolled if a work experience
assignment approved by the social services official is available. Where such
work experience assignment is not available, the social services district
shall, to the extent possible, assign the student to a work experience site
within reasonable proximity to the campus where the recipient is enrolled.
Provided, however, in order to qualify for a work experience assignment
on-campus, or in close proximity to campus, a student must have a cumulative C
average, or its equivalent. The social services district may waive the
requirement that the student have a cumulative C average or its equivalent for
undue hardship based on:
(a) the death of a
relative of the student;
(b) the
personal injury or illness of the student; or
(c) any other extenuating circumstances;
and
(ii) not
unreasonably assign the student to participate in work experience during hours
that conflict with the student's academic schedule.
(e) Job search activities.
(1) Each applicant for or recipient of public
assistance shall, upon request of the social services official, demonstrate
that he/she is engaged in an active and continuing effort to achieve
self-sufficiency.
(2) Such effort
shall include but not be limited to an active and continuing search for
employment, or for persons otherwise exempt in accordance with sections
385.2
and
385.3
of this Part, and where deemed appropriate by the social services official,
activities that foster preparation for employment.
(3) Each such applicant or recipient shall
have an affirmative duty to accept any offer of lawful employment in which he
or she may engage.
(4) The failure
of a social services district to assign applicants and recipients to activities
pursuant to this Part shall not relieve such persons from the requirements of
this subdivision.
(5)
(i) An applicant who fails to comply with the
requirements of this subdivision shall be ineligible for public assistance; for
purposes of this subparagraph, the term applicant shall mean the entire
applicant household.
(ii) A
recipient who fails to comply with the requirements of this subdivision shall
be subject to sanction in accordance with the provisions of sections
385.11
and
385.12
of this Part.
(6)
Supervised job search activities shall be described in the local
plan.
(f) Subsidized public sector employment programs.
(1) A
social services official may establish subsidized public sector employment
programs for public assistance recipients including, but not limited to, grant
diversion programs, which may be supported wholly or in part with public
assistance funds. Such programs shall be established through agreements between
social services districts and employers; provided, however, that, if
appropriate, the office may act on behalf of one or more social services
districts in establishing such agreements.
(2) Programs may include, but need not be
limited to, on-the-job training programs which reimburse employers in part or
in whole for the cost of training public assistance recipients through wage
subsidies.
(3) The social services
official or the office is authorized to transfer public assistance funds to
employers through written agreements developed and executed in accordance with
office regulations.
(4) A recipient
may be assigned to a subsidized public sector employment activity only if:
(i) the conditions of employment including
such factors as the type of work, geographical region and proficiency of the
participant are appropriate and reasonable;
(ii) the recipient is deemed an employee for
purposes of the applicable collective bargaining and labor laws and receives
the same benefits and protections as existing employees similarly situated
(working a similar length of time and doing similar work) receive pursuant to
the provisions of law and any applicable collective bargaining agreement or
otherwise as made available to such existing employees;
(iii) the social services official shall
ensure that any such program agreement contains adequate provisions for the
prompt resolution of disputes concerning participation in the program and the
obligations and benefits associated with it;
(iv) nothing contained in this section shall
be deemed to affect, modify or abridge a participant's right to a fair hearing
pursuant to Part 358 of this Title or representation thereat by counsel or, if
applicable, the participant's collective bargaining representative.
(5) A participant employed by an
employer subject to the Civil Service Law or subject to rules consistent with
such law shall be appointed to an appropriate classified position.
Notwithstanding any other provision of law, rule or regulation, such position
shall be deemed to be in the non-competitive class of the classified service
only while such participant is serving in the position.
(6) No employee of the participating employer
may be displaced by any recipient employed pursuant to this subdivision. For
the purpose of this subdivision, the term displacement shall include partial
displacement, such as a reduction in the customary hours of work (including
overtime), wages, or employment benefits.
(7) No participant shall be employed:
(i) if any other employee of the employer is
available for reinstatement, recall or reemployment following a leave of
absence, furlough, layoff or suspension from the same or any substantially
equivalent job;
(ii) when the
employer has terminated the employment of any regular employee or otherwise
reduced its work force with the intention of filling the vacancy or vacancies
so created by hiring a participant whose wages are subsidized under this
program;
(iii) when the employee
organization representing employees of the employer is engaged in a strike
against the employer or such employees have been locked-out by the employer;
or
(iv) where such employment
results in the loss of a bargaining unit position as a result of assigned
individuals performing, in part or in whole, the work normally performed by the
employee in such position.
(8) No position may be created that will
infringe in any way upon the promotional opportunities of currently employed
individuals or individuals currently engaged in an approved apprenticeship
training program.
(9) No
participant shall remain in a position if another employee is eligible for
promotion from an eligible list to that position. An employer shall, at least
10 days prior to filling a position with a participant, notify any employee
organization that represents employees of the employer who are engaged in
similar work or training in the same or substantially equivalent job as that in
which the placement is to be made, that it intends to make a placement pursuant
to the terms of this subdivision.
(10) Where an employee organization
represents employees of the employer who are engaged in similar work in the
same or substantially equivalent job as that proposed to be funded under this
program, an opportunity shall be provided for such organization to comment on
the proposed placement of the participant or the administration of the program
and the social services official shall respond to such comments within 10 days
of receipt of such comments.
(11)
Employers are prohibited from using public assistance funds to encourage or
discourage membership in, or participation in the activities of, any employee
organization, and each employer shall provide to the social services district
assurances that no such funds will be used for such purposes.
(12) Nothing herein shall be construed to
affect, modify, or otherwise abridge any provision of the Civil Service
Law.
(g) Subsidized private sector and not-for-profit employment programs.
(1) A social services district may establish
subsidized private sector employment programs for public assistance recipients
including, but not limited to, grant diversion programs, which may be supported
wholly or in part with public assistance funds. Such programs shall be
established through agreements between social services districts and employers,
including not-for-profit employers; provided, however, that, if appropriate,
the office may act on behalf of one or more social services districts in
establishing such agreements.
(2)
Programs may include, but need not be limited to, on-the-job training programs
which reimburse employers in part or in whole for the cost of training public
assistance recipients through wage subsidies.
(3) The social services official or the
office is authorized to transfer public assistance funds to employers through
written agreements developed and executed in accordance with office
regulations.
(4) A recipient may be
placed in a subsidized private sector or not-for-profit employment activity
only if:
(i) the conditions of employment
including such factors as the type of work to be performed, the geographic
location of the job, and the qualifications of the participant are appropriate
and reasonable;
(ii) the recipient
is deemed an employee for purposes of the applicable collective bargaining and
labor laws and receives the same benefits and protections as an employee
similarly situated (working a similar length of time and doing similar work)
receives pursuant to the provisions of law, an applicable collective bargaining
agreement or otherwise as made available to the employees of the
employer;
(iii) no employee of the
participating employer is displaced by any recipient hired pursuant to this
subdivision. For the purpose of this subdivision, the term displacement shall
include partial displacement, such as a reduction in the customary hours of
work (including overtime), wages, or employment benefits;
(iv) no participant is hired:
(a) if any other employee of the employer is
available for reinstatement, recall or reemployment following a leave of
absence, furlough, layoff or suspension from the same or any substantially
equivalent job; or
(b) when the
employer has terminated the employment of any regular employee or otherwise
reduced its work force with the intention of filling the vacancy or vacancies
so created by hiring a participant whose wages are subsidized under this
program; or
(c) when the employee
organization representing employees of the employer is engaged in a strike
against the employer or such employees have been locked-out by the employer;
or
(d) when such hiring will result
in the loss of a bargaining unit position as a result of assigned individuals
performing, in part or in whole, the work normally performed by the employee in
such position;
(v) no
job is created that will infringe in any way upon the promotional opportunities
of current employees or individuals currently engaged in an approved
apprenticeship training program;
(vi) no participant shall remain in a job if
another employee is eligible for promotion to that job. An employer shall, at
least 10 days prior to filling a position with a participant, notify any
employee organization that represents employees who are engaged in similar work
or training in the same or substantially equivalent jobs as those on which the
placement is to be made, that it intends to make a placement pursuant to the
terms of this section;
(vii) where
an employee organization represents employees of the employer who are engaged
in similar work in the same or substantially equivalent jobs as those proposed
to be funded under this program, an opportunity is provided for such
organization to comment on the proposed placement of participants or the
administration of the program and the social services official or his/her
designee shall respond to such comments within 10 days of receipt of such
comments;
(viii) employers are
prohibited from using public assistance funds to encourage or discourage
membership in, or participation in the activities of, any employee organization
and each employer shall provide to the social services district assurances that
no such funds will be used for such purposes.
(5) The social services official shall
require every private or not-for-profit employer that intends to hire one or
more assigned individuals to certify to the social services district that such
employer has not, in the past five years, been convicted of a felony or a
misdemeanor the underlying basis of which involved workplace safety and health
or labor standards. Such employer shall also certify as to all violations
issued by the State Department of Labor within the past five years. The social
services official in the social services district in which the participant is
placed shall determine whether there is a pattern of violations sufficient to
render the potential employer ineligible. Employers who submit false
information under this section shall be subject to criminal prosecution for
filing a false instrument.
Disclaimer: These regulations may not be the most recent version. New York may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.