10-144-607 Me. Code R. § 13

Current through 2024-51, December 18, 2024

Section 144-607-13 - EMPLOYMENT

Summary: This Section describes ASPIRE-TANF types of employment which include ASPIRE-PLUS (also known as On-The-Job Training) Self-Employment, Apprenticeship, Non-traditional Employment, full and part-time employment and Dislocated Employee Grievance Procedures.

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.

10-144 C.M.R. ch. 607, § 13