Marc H. Morial
Marc H. Morial
President and CEO
President and CEO
120 Wall Street, 8th Floor
New York, NY 10005
Phone
Efax
212 558 5300
646 568 2185
www.nul.org
[email protected]
June 12, 2015
National Urban League Comments on
Workforce Innovation and Opportunity Act (WIOA)
Notices of Proposed Rulemaking (NPRMs)
The National Urban League is pleased to submit the following comments regarding the
Workforce Innovation and Opportunity Act (WIOA) Notice of Proposed Rulemaking Docket
No. ETA – 2015-0001, for Regulatory Information Number (RIN) 1205-AB73, to implement
Titles I and III of WIOA; and Docket No. ETA – 2015-0002, for Regulatory Information
Number (RIN) 1205-AB74, “Joint Rule for Unified and Combined State Plans, Performance
Accountability, and the One-Stop System Joint Provisions.”
The National Urban League is a historic civil rights and national intermediary nonprofit
organization dedicated to economic empowerment in historically underserved urban
communities. Through direct service programs that are implemented locally by 94 Urban
League community based affiliates in 36 states and the District of Columbia, we have
improved the lives of tens of millions of people nationwide. Our comments are derived from
the National Urban League’s 105 years of expertise in public policy and direct services
delivery in urban communities across the country, particularly in the areas of education,
workforce training, workforce development and employment placement of especially
underserved adult and youth populations.
In both national public policy and in direct service delivery through its Urban League
community-based affiliates, the National Urban League has always placed key emphasis on
targeting Americans most in need, having multiple barriers to employment, through concrete
steps to reach low-income unskilled and low-skilled adults and youth, including out-ofschool youth, who have little attachment to the labor force, including low income older
workers.
The National Urban League finds that, unlike previous law (the Workforce Investment Act or
WIA) WIOA overall greatly improves our workforce development system’s ability to
respond to Americans most in need of its services by instituting a priority of service
emphasis, increasing the role of community-based organizations throughout the system, and
strengthening conflict of interest provisions at the State and Local levels. The NPRMs
released by the Departments in April 2015 are a critical step towards these improvements,
and throughout our comments we note areas where we are in support of the draft rules, as
well as areas where we believe additional regulatory clarification or guidance may be needed.
2
NATIONAL URBAN LEAGUE COMMENTS
ON NPRM RIN 1205-AB73
State Workforce Development Board (WDB)
Proposed CRF 679.110(b)(3)(ii)(C) and (D) speaks to the composition of the State
Workforce Development Board pertaining to workforce representatives. In addition to the
representatives listed in Proposed CRF 679.110(b)(3)(ii)(A) and (B), the proposed rule
states that “Not less than 20 percent who are representatives of the workforce within the
State, which: (C) May include one or more representatives of community-based
organizations that have demonstrated experience and expertise in addressing the
employment, training, or education needs of individuals with barriers to employment,
including organizations that serve veterans or provide or support competitive, integrated
employment for individuals with disabilities; and (D) May include one or more
representatives of organizations that have demonstrated experience and expertise in
addressing the employment, training, or education needs of eligible youth, including
representatives of organizations that serve out -of- school youth.”
Comment: This proposed rule implements WIOA sec.101(b) pertaining to membership
requirements of the State Workforce Development Board. The National Urban League is
deeply disappointed that WIOA made optional on State Boards the representation of
community-based organizations (CBOs) that have demonstrated experience and expertise in
addressing the employment, training, and education needs of individuals with barriers to
employment. Under WIA, State Board representation of CBOs was mandatory.
We applaud the Department’s effort to draw attention in its discussion of this proposed rule
to the need to include CBO representation on State Boards where it states that, “This
proposed section also encourages representation from CBOs that have demonstrated
experience and expertise, as defined in proposed [CRF]679.120, in addressing the
employment, training, or education needs of individuals with barriers to employment across
the State…and organizations that have demonstrated experience and expertise in addressing
the employment, training, or education needs of eligible youth, including organizations that
serve OSY.”
In addition, the National Urban League urges the Department to go further in strengthening
this section in its final rule by amending Proposed CRF 679.110(b)(3)(ii)(C) and (D) to add:
(E) State Boards are strongly encouraged to include organization representatives in (C)
and (D).
Rationale: Given the National Urban League’s and its local community based affiliates’
decades of demonstrated experience and expertise in workforce training and employment, we
recommend that community-based organizations be much more integrated as mandated
partners in the WIOA planning (in addition to eligible service providers) of our nation’s
workforce service delivery system. Their role is essential and key in advancing a coordinated
and seamless workforce development system given their expertise in bringing together all
3
sectors – business, government, faith-based and other community organizations – in meeting
the education and workforce needs of residents in their local communities.
Nonprofit community-based organizations serve not only as providers of services, but also as
employers in their local communities. They possess the knowledge and valuable insights at
the front line level of the workforce development services and strategies that are effective in
meeting the skills and employment needs of especially individuals with multiple barriers to
employment. CBOs must not be relegated only to the role of optional service providers, but
included as policymakers as well. CBOs, especially minority-serving CBOs, represent the
perspectives, and provide a “trusted bridge” to addressing the needs of diverse
populations, including African American, Hispanic and other people of color.
Insights from the direct experience of National Urban League affiliates from around the
country provide additional guidance on the importance of CBO inclusion on State Boards:




The weakening, and in many cases the outright exclusion, of CBO representation on
the State Workforce Development Boards is tantamount to cutting out the very
populations most in need of WIOA’s services;
Without CBO input into the policy direction of the WDBs, State Boards can lose
sight of WIOA’s “priority of service” mandate; and of insuring that individuals with
multiple barriers to employment and WIOA’s targeting of out-of-school youth are in
fact addressed and funded;
Community-based organizations serve as employers in their local communities and
bring this perspective to the policy/planning table as well as bringing the perspective
of training and employment placement providers;
CBOs are often the sole representatives of their respective underserved populations,
particularly CBOs that serve African American, Hispanic and other people of color.
“Demonstrated Experience and Expertise” As Applied to State Workforce Development
Boards
Proposed CRF 679.120(b): “A representative with “demonstrated experience and
expertise” means an individual with documented leadership in developing or implementing
workforce development, human resources, training and development, or a core program
function.”
This proposed rule attempts to define what is meant by a representative on the State
Workforce Development Board that has “demonstrated experience and expertise” who is
capable of implementing the Functions of the State Board as described in WIOA sec. 101(d)
to assist the Governor with the implementation of WIOA.
Comment: The Department is seeking public comment on how to further define
“demonstrated experience and expertise” and examples of the types of qualifications that
would meet such a definition. The National Urban League welcomes the opportunity to
comment on this proposed rule as this definition has important implications for how WIOA is
implemented to, in actuality, fully reach priority of service populations that include
4
individuals with barriers to employment. Based on our years of experience at both national
and locally-based affiliate levels, we urge that such a representative be able to demonstrate
that he/she represents and leads an organization that has a track record of the following
competencies:









Is data driven;
Has a successful track record in moving money into local communities through
effective use of government resources, such as federal grants from various federal
agencies;
Can efficiently use funding to leverage additional funding through other grants;
Has the ability to manage limited resources efficiently and effectively;
Has a successful, documented track record of serving WIOA’s priority of service
populations including individuals with barriers to employment;
Has a demonstrated ability to create quality partnerships in their local and regional
communities;
Has credibility, i.e., they have the inherent trust of their community;
Is culturally competent, i.e., has an understanding and ability to relate and
communicate with diverse populations in their respective community, such as
representatives of organizations that are minority-led and minority-serving;
Represent organizations that are physically located in the communities of the target
populations they serve – especially key when access to transportation is often limited.
State Workforce Development Board “Sunshine Provision”
Proposed CRF 679.140 lists the requirements that State Boards must meet to conduct
business in an open manner under the “sunshine provision” required by WIOA sec. 101(g).
Comment: The National Urban League and its community-based affiliates place great
emphasis on the need for assurance that State Boards abide by the requirements of this
provision. We applaud the Department’s emphasis on transparency in its discussion of this
proposed rule where it states that “Transparency promotes accountability and provides
valuable information to citizens on the Federal, State, and local government’s activities.” The
Department’s discussion further emphasizes that the information that must be provided under
WIOA sec. 101(g), “…must be easily accessed by interested parties.” And further that,
“Ensuring that this information is widely available promotes transparency and provides
access to the public on how the State Board works to align, integrate, and continuously
improve the workforce development system.”
The National Urban League and its community-based affiliates urge the Department to
provide further guidance to the States on the requirements of the Sunshine Provision, and
most importantly, how the Department plans to hold them accountable for meeting these
requirements under WIOA sec. 101(g).
5
Local Workforce Development Board (WDB)
Proposed CRF 679.320(c)(3) and (4) speaks to the composition of the Local Workforce
Development Board pertaining to workforce representatives, where it states that “At least 20
percent of the members of the Local Board must be workforce representatives.” In addition
to the representatives listed in Proposed CRF 679.320(c)(1) and (2), the proposed rule states
that these representatives: “(3) May include one or more representatives of community-based
organizations that have demonstrated experience and expertise in addressing the
employment, training, or education needs of individuals with barriers to employment,
including organizations that serve veterans or provide or support competitive, integrated
employment for individuals with disabilities; and (4) May include one or more
representatives of organizations that have demonstrated experience and expertise in
addressing the employment, training, or education needs of eligible youth, including
representatives of organizations that serve out -of- school youth.”
Comment: This proposed rule implements WIOA sec.107(b)(1) and WIOA sec.107(b)(2)
pertaining to membership requirements of the Local Workforce Development Board. As
emphasized in our previous comments about the composition requirements of WIOA’s State
Workforce Development Boards, the National Urban League is deeply disappointed that
WIOA also made optional on Local Boards the representation of community-based
organizations (CBOs) that have demonstrated experience and expertise in addressing the
employment, training, and education needs of individuals with barriers to employment.
Under WIA, Local Board representation of CBOs was also mandatory.
We strongly support the Department’s clear directive in its discussion of this proposed
rule that, “While not mandatory, the two representative categories in proposed paragraphs
(c)(3) and (4) count towards reaching the 20 percent threshold.” We would therefore
additionally urge the Department to go further in strengthening this section in its final rule by
amending Proposed CRF 679.320(c)(3) and (4) to add: (5) While not mandatory, the two
representative categories in proposed paragraphs (c)(3) and (4) count towards reaching the
20 percent threshold.
Rationale: As stated in our comments about the composition of State Workforce
Development Boards, we reiterate that, given the National Urban League’s and its local
community based affiliates’ decades of experience in workforce training and employment,
we recommend that community-based organizations be much more integrated as mandated
partners in the WIOA planning (in addition to service providers) of our nation’s workforce
service delivery system. Their role is essential and key in advancing a coordinated and
seamless workforce development system given their expertise in bringing together all sectors
– business, government, faith-based and other community organizations – in meeting the
education and workforce needs of residents in their local communities.
Nonprofit community-based organizations serve not only as providers of services, but also as
employers in their local communities. They possess the knowledge and valuable insights at
the front line level of the workforce development services and strategies that are effective in
meeting the skills and employment needs of individuals with multiple barriers to
6
employment. CBOs must not be relegated only to the role of optional service providers, but
included as policymakers at the local level as well in providing valuable input into the
development of the 4-year local plan under WIOA sec.108. CBOs, especially minorityserving CBOs, represent the perspectives, and provide a “trusted bridge” to addressing the
needs of diverse populations, including African American, Hispanic and other people of
color.
Insights from the direct experience of National Urban League affiliates from around the
country provide additional guidance on the importance of CBO inclusion on Local Boards:




The weakening, and in many cases the outright exclusion, of CBO representation on
the Local Workforce Development Boards is tantamount to cutting out the very
populations most in need of WIOA’s services;
Without CBO input into the policy direction of the WDBs, Local Boards lose sight of
WIOA’s “priority of service” mandate; and of insuring that individuals with multiple
barriers to employment and WIOA’s targeting of out-of-school youth are in fact
addressed and funded;
Community-based organizations serve as employers in their local communities and
bring this perspective to the policy/planning table as well as bringing the perspective
of training and employment placement providers;
CBOs are often the sole representatives of their respective underserved populations,
particularly CBOs that serve African American, Hispanic and other people of color.
“Demonstrated Experience and Expertise” As Applied to Local Workforce Development
Boards
Proposed CRF 679.340(b)(1)(2)(3) defines the qualifications of a representative on the
Local Board that satisfy as “demonstrated experience and expertise.” The proposed rule
states that this means and individual who: “(1) Is a workplace learning advisor as defined in
WIOA sec. 3(70); (2) Contributes to the field of workforce development, human resources,
training and development, or a core program function; or (3)The Local Board recognizes for
valuable contributions in education or workforce development related fields.”
Comment: While the Department is not seeking public comment on how to further define
“demonstrated experience and expertise” as it applies to members of the Local Boards, the
National Urban League feels compelled to comment on this proposed rule as this definition
has important implications for how WIOA is implemented to, in actuality, fully reach
priority of service populations that include individuals with barriers to employment. Based
on our years of experience at both national and locally-based affiliate levels, and given the
expanded and enhanced functions of the Local Board under WIOA, including and especially
the selection of eligible service providers, we urge that such a representative be able to
demonstrate that he/she represents and leads an organization that has a track record of the
following competencies:

Is data driven;
7








Has a successful track record in moving money into local communities through
effective use of government resources, such as federal grants from various federal
agencies;
Can efficiently use funding to leverage additional funding through other grants;
Has the ability to manage limited resources efficiently and effectively;
Has a successful, documented track record of serving WIOA’s priority of service
populations including individuals with barriers to employment;
Has a demonstrated ability to create quality partnerships in their local and regional
communities;
Has credibility, i.e., they have the inherent trust of their community;
Is culturally competent, i.e., has an understanding and ability to relate and
communicate with diverse populations in their respective community, such as
representatives of organizations that are minority-led and minority-serving;
Represent organizations that are physically located in the communities of the target
populations they serve – especially key when access to transportation is often limited.
Local Workforce Development Board “Sunshine Provision”
Proposed CRF 679.390 identifies “How… the Local Board [is to] meet its requirement to
conduct business in an open manner under the “sunshine provision” of [WIOA].”
Comment: The National Urban League and its local affiliates applaud the Department for
expanding, in this proposed rule, the scope of what the public must be made aware of relative
to the activities of the Local Board, and requires that this information be shared by electronic
means as well as through open meetings as provided for in WIOA sec. 107(e). We strongly
urge that these expansions remain in the Final Rule. The expansions to WIOA sec. 107(e)
include:





Not only providing information about the Local Plan before submission, but also information
about any modification made to the Local Plan;
A list and affiliation of Local Board members;
Award of grants or contracts to not only eligible providers of youth workforce investment
activities, but also award of grants or contracts to eligible providers of workforce investment
activities;
Mandatory provision of the minutes of the formal meetings of the Local Board; and
Local Board by-laws, consistent with Proposed CRF 679.310(g).
Prohibition of Local Boards as Providers of Training Services
Proposed CRF 679.410 outlines the conditions governing when a Local Board may directly
be a provider of career services, or training services, or act as a one-stop operator. CRF
679.410(c) specifically prohibits a Local Board from providing training services, unless the
Governor grants a waiver in accordance with the provisions in WIOA sec. 107(g)(1), and
CRF 679.410(c)(1) requires the State to develop a procedure to review waiver requests that
includes the criteria listed in WIOA sec.107(g)(1)(B)(i).
8
Comment: Under WIA, local affiliates of the National Urban League have continuously
raised the serious issue that, then called Local Workforce Investment Boards (WIBs), created
an unfair allocation of funding for themselves, creating a local workforce environment where
RFPs were self-directed to the Local WIBs and WIA training dollars were essentially closed
off from eligible service providers, including and especially eligible training providers
serving communities of color. This has been, and continues to be a serious issue that must be
strongly addressed in the Department’s rulemaking process and further guidance to the
States.
The Department’s discussion of the proposed rule governing especially the prohibition of
Local Boards as providers of training services and the conditions under which a waiver to
provide training services may be granted by the Governor takes very positive steps in sending
a very clear message to the States and their Local Boards that, as stated by the Department,
“The intent of this waiver is to provide the option for Local Boards to provide training
services in extenuating circumstances only, such as rural areas with limited training
providers.” We further strongly support the Department’s directive in its discussion of this
proposed rule that, “Furthermore, the new criteria underscore that the waiver is not
appropriate for local areas that have a robust network of training providers.” We further
appreciate that the Department makes the connection that the granting of waivers criteria
under WIOA sec.107(g)(1)(B)(i) to (iii) “…helps ensure that the local area is acting in good
faith when asserting that there are insufficient providers in the local area and protects
against a conflict of interest.”
However, given a longstanding pattern by some Local Boards of inappropriate referrals
for training services operated by the Local Board, the National Urban League and its
affiliates strongly urge the Department to issue further guidance to the States and their
Local Boards on how they will be held accountable and the consequences of violating
this proposed rule.
NATIONAL URBAN LEAGUE COMMENTS
ON NPRM RIN 1205-AB74
Unified State Plan
Proposed Joint Rule CRF 676.130(c)(1) regarding the submission and approval process of
the Unified State Plan states, “The opportunity for public comment must include an
opportunity for comment by representatives of Local Boards and chief elected officials,
businesses, representatives of labor organizations, community-based organizations, adult
education providers, institutions of higher education, other stakeholders with an interest in
the services provided by the six core programs, and the general public, including individuals
with disabilities.”
Comment: The National Urban League strongly supports the Department’s emphasis on
transparency and inclusion in the development of the State Plan by providing the directive in
its discussion of this proposed rule that “The Governor must ensure that the Unified or
9
Combined State Plan is developed in consultation with [emphasis added] representatives of
Local Boards and chief elected officials (CEOs), businesses, representatives of labor
organizations, community-based organizations (CBOs), [emphasis added] adult and youth
education and workforce development providers, institutions of higher education, disability
service entities, youth-serving programs, and other stakeholders with an interest in the
services provided by the six core programs and any optional program included in a
Combined Plan, as well as the general public, including individuals with disabilities.” This
directive provides clarity that such stakeholders, including community-based organizations,
are not only reviewing the plan after the fact, but must be part of the process of formulating
the State Plan.
To this end, we recommend that the final rule be further strengthened to insure that these key
stakeholders are included in the development of the Unified State Plan and not only in the
post development comment period, given their direct access and demonstrated experience
and expertise with the needs of the priority of service populations emphasized by WIOA.
Therefore, we urge that the final CRF 676.130(c) rule be amended to add that “The
Governor must ensure [emphasis added] that the Unified or Combined State Plan is
developed in consultation with [emphasis added] representatives of Local Boards and chief
elected officials (CEOs), businesses, representatives of labor organizations, communitybased organizations (CBOs), adult and youth education and workforce development
providers, institutions of higher education, disability service entities, youth-serving
programs, and other stakeholders with an interest in the services provided by the six core
programs and any optional program included in a Combined Plan, as well as the general
public, including individuals with disabilities.”
Achieving Measurable Skill Gains Measure
Proposed Joint Rule CRF 677.155(a)(1)(v) describes WIOA’s indicator for performance
pertaining to achieving measurable skill gains. The Departments describe this measure as:
“The percentage of participants who during a program year, are in an education or training
program that leads to a recognized post-secondary credential or employment and who are
achieving measurable skill gains, defined as documented academic, technical, occupational
or other forms of progress, towards such a credential or employment.”
Comment: The National Urban League and it local affiliates find that this new primary
indicator of performance is essential towards insuring that individuals who are the hardest to
serve are indeed served by WIOA’s education and training programs. The “measurable skill
gains” measure can also serve as a key safeguard against “creaming” participants who are the
most job-ready and leaving the hardest to serve excluded from WIOA’s improved workforce
development system. We support the Departments’ view that they are considering “using this
indicator to measure interim progress of participants who may be enrolled in education or
training services for a specified reporting period.” In fact, we urge the Departments to not
only “consider” this indicator as a “measure of interim progress,” but to adopt include this in
its Final Rule.
10
In addition, the Departments seek comments on ways States can measure and document
participants’ measurable skill gains in a standardized way, including whether time intervals
are required and what time intervals might be. The Departments are also seeking comments
on whether the performance targets for this indicator should be set at the indicator (i.e.,
measurable skill gains) or documented progress measure (e.g., attainment of high school
diploma) level.
The National Urban League draws on the years of demonstrated experience and expertise of
our local affiliates that provide direct education and training services to participants who are
truly individuals with multiple barriers to employment – the hardest to serve – in urban
communities across the country. Our affiliates deliver their services using primarily a
holistic, case management model and have tremendous insights on what constitutes a
“measurable skill gain.” According to their experience, measuring interim progress of
participants must include measuring documented gains in a participant’s achieving “soft
skills” throughout their participation in a program, in addition to the definition in Proposed
CRF 677.155(a)(1)(v). For example, such soft, basic, skills include:





Program attendance – hours and days
Numbers of days a participant arrives on time
Gains in proper attire for program participation
Gains in positive behavior/attitude while in the classroom and/or in a training facility
Creating an Individual Employment Plan that includes milestones such as creating a cover
letter to a resume, preparing the resume, goal setting, and a career plan
We urge the Departments to set the performance targets for this indicator at the
measurable skill gains indicator.
Reducing Undue Cost and Burden on Providers of Training for Submission of
Performance Reports Under WIOA
Proposed Joint Rule CRF 677.230 delineates the extensive information that is required of
eligible training providers when submitting their performance reports. In its discussion of
these provider performance reports, the Department attempts to respond to stakeholder
concerns that some providers of training would face difficulties in participating in WIOAs
revised system of information reporting and seeks ways to address it so as to insure that “…a
wide variety of high-quality training programs are available to participants…” and to “ensure
small CBOs, especially those serving hard to serve participant populations, have the capacity
to qualify as ETPs [Eligible Training Providers].” The Department points to fact that “The
proposed regulations emphasize the Governor’s discretion in offering financial or technical
support to training providers where the information requirements of this section result in
undue cost or burden.”
Comment: The National Urban League and its local affiliates applaud the Department for its
recognition of the potential cost and burden of WIOA’s requirements for eligible training
providers in meeting their performance reports, and particularly for small CBOs that serve
hard to serve participant populations. We look forward to additional Departmental guidance
11
to the States on how they can help streamline performance reporting for training providers
and minimize the burden associated with reporting on multiple programs of study.
Definition of the Term “Exit”
Proposed Joint Rule CRF 677.150(c) proposes to define an “exit” from a WIOA core
program, as well as applicable non-core programs as established through regulation or
guidance, “as the last date of service.” In their discussion, the Departments propose that “the
last date of service means the individual has not received any services for 90 days and there
are no future services planned. For the purpose of this definition, ‘service’ does not include
self-service, information-only activities, or follow-up services. Therefore, in order to
determine whether or not an individual has exited, States will retroactively determine if 90
days have passed with no further service and no further services scheduled.”
Comment: The National Urban League and its affiliates agree with the definition in
Proposed CRF 677.150(c) of what constitutes an “exit” from a WIOA program. In
responding to the Departments’ request for comments on whether an individual’s continued
use of self-service offerings should extend the individual’s exit date, or if a participant should
be considered as having exited after the final staff-assisted service (where the self-service
component is limited to WIOA title I programs and the Wagner-Peyser Employment
Services), we urge the Departments to adopt, in their Final Rule, the latter definition – i.e., a
participant should be considered as having exited after the final staff-assisted service.
Including self-service, information-only activities or follow-up services in the definition of
an “exit” would create a complicating burden when reporting on indicators of performance
for 2nd and 4th quarters.
__________________________________________
Undersigned:
The NAACP and National Action Network (NAN) have signed on in support of the National
Urban League’s Comments on Workforce Innovation and Opportunity Act (WIOA) Notices of
Proposed Rulemaking (NPRMs).