[wiaattorneys] Re: State agencies as recipients under section 188 and 29 CFR Part 37

  • From: "Mason, Paul (LABOR)" <Paul.Mason@xxxxxxxxxxxxxxxxx>
  • To: <VSandron@xxxxxxxxxx>, <wiaattorneys@xxxxxxxxxxxxx>
  • Date: Tue, 11 Oct 2005 11:19:33 -0400

Vera - I agree there are some inconsistencies in the regulations,
however, the CRC clearly advises that Section 188 apply to state
employment practices.  I think one of the hooks is the requirement that
states establish a Methods of Administration which must be approved by
the CRC.  This process requires states to show how Section 188 is
adhered to  (e.g. notification, taking complaints, monitoring) by the
State.  In addition, some of the protected class categories are also
covered by other USDOL regulations regarding recipients of federal funds
( race, color, national origin - 29 CFR Part 31; Rehab Act - 29 CFR Part
32; sex - 29 CRF Part 36) and other statutes such as the ADA which are
incorporated by reference and apply to states as employers.  In
addition, the Civil RIghts Restoration Act of 1987 extended coverage to
a recipients entire program, even the non-funded portions.  You might be
able to argue that a few of the protected class categories that are
unique to Section 188 are not applicable to State agencies but this
would raise problems with the Methods of Administration.  
One interesting question that came up at the CRC conference a few years
ago is how far down the obligation goes to lower tier recipients.  DOJ
indicated that basically only sub-recipients and contractors were
covered by the protections under the Civil Rights laws.  I know that the
definitions of Part 37 suggest that it goes lower to sub-contractors.
Jane Pomerantz also pointed out that the definition of recipients
emcompasses more groups under WIA than the audit provisions of 29 CFR
Part 99 regarding accessibility requirements.  I think the bottom line
is we are still covered by 29 CFR Part 37.  
Paul Mason
Associate Attorney
State Office Campus
Building 12, Room 509
Albany, NY  12240
phone: (518) 457-4380
fax:   (518) 485-1819
paul.mason@xxxxxxxxxxxxxxxxx <mailto:paul.mason@xxxxxxxxxxxxxxxxx> 

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From: wiaattorneys-bounce@xxxxxxxxxxxxx
[mailto:wiaattorneys-bounce@xxxxxxxxxxxxx] On Behalf Of Sandronsky,
Sent: Friday, October 07, 2005 2:30 PM
To: wiaattorneys@xxxxxxxxxxxxx
Subject: [wiaattorneys] State agencies as recipients under section 188
and 29 CFR Part 37

Section 188 of the WIA applies the nondiscrimination rules set forth in
the listed federal laws to "programs and activities funded or otherwise
financially assisted in whole or in part under this Act...." 

Has anyone considered whether the WIA nondiscrimination rules that
implement section 188 and are set forth in 29 CFR Part 37 apply to a
state agency's employment practices concerning its employees?

There seems to be contradictory language in the federal regulations.
"Recipient" at section 37.4 is defined to include "State-level agencies
that administer, or are financed in whole or in part, with WIA Title I
funds."--This could support the position that the WIA nondiscrimination
rules do apply to a state agency's employment practices concerning its
own employees when that state agency receives WIA funds. 

But then section 37.10 mirrors the language in section 188 of the WIA
and provides in part that 
"Discrimination on the ground of race, color, religion, sex, national
origin, age, disability, or political affiliation or belief is
prohibited in employment practices in the administration of, or in
connection, with: 1) Any WIA Title I-financially assisted program or
activity;...."---You could argue that "program or activity" language
does not include a state agency's own employment practices simply
because that state agency receives WIA funding. The state agency itself
is not operating WIA funded programs or activities but passes the WIA
funded money on to other entities.

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Vera Sandronsky 
EDD Legal Office 
(916) 654-8410 


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