29 C.F.R. Subpart D—Compliance Procedures
Title 29 - Labor
(a) The Director may from time to time conduct pre- and post-approval compliance reviews of grant applicants for and recipients of Federal financial assistance under JTPA to determine compliance with the nondiscrimination and equal opportunity provisions of JTPA and this part. Techniques used in such reviews may include desk reviews, on-site reviews, and off-site analyses. (b) Pre-approval reviews. (1) As appropriate and necessary to ensure compliance with the nondiscrimination and equal opportunity provisions of JTPA or this part, the Director may review any application, or class of applications, for Federal financial assistance under JTPA prior to and as a condition of their approval. The basis for such review shall be the assurance specified in §34.20, information and reports submitted by the grant applicant pursuant to this part or guidelines published by the Director, and any relevant records on file with the Department. (2) Where the Director determines that the grant applicant for Federal financial assistance under JTPA, if funded, would not comply with the nondiscrimination and equal opportunity requirements of JTPA or this part, the Director shall issue a Letter of Findings. Such Letter of Findings shall advise the grant applicant, in writing, of: (i) The preliminary findings of the review; (ii) The proposed remedial or corrective action pursuant to §34.44 and the time within which the remedial or corrective action should be completed; (iii) Whether it will be necessary for the grant applicant to enter into a written Conciliation Agreement as described in §34.45; and (iv) The opportunity to engage in voluntary compliance negotiations. (3) If a grant applicant has agreed to certain remedial or corrective actions in order to receive Federal financial assistance under JTPA, the Department shall ensure that the remedial or corrective actions have been taken or that a Conciliation Agreement has been entered into, prior to approving the award of further assistance under JTPA. If a grant applicant refuses or fails to take remedial or corrective actions or to enter into a Conciliation Agreement, as applicable, the Director shall follow the procedures outlined in §34.46. (4) The Director shall notify, in a timely manner, the departmental granting agency of the findings of the pre-approval compliance review. (c) Post-approval reviews. (1) The Director may initiate a post-approval review of any recipient to determine compliance with the nondiscrimination and equal opportunity provisions of JTPA and this part. The initiation of a review may be based on, but need not be limited to, the following: The results of routine program monitoring, the nature of or incidence of complaints, the date of the last review, and Congressional or community concerns. (2) Such review shall be initiated by a Notification Letter, advising the recipient of: (i) The practices to be reviewed; (ii) The programs to be reviewed; (iii) The data to be submitted by the recipient within 30 days of the receipt of the Notification Letter; and (iv) The opportunity, at any time prior to receipt of the Final Determination described in §34.46, to make a documentary or other submission which explains, validates or otherwise addresses the practices under review. (3) Except as provided in §34.41(e), within 210 days of issuing a Notification Letter initiating a review, the Director shall: (i) Issue a Letter of Findings, which shall advise the recipient, in writing, of: (A) The preliminary findings of the review; (B) Where appropriate, the proposed remedial or corrective action to be taken, and the time by which such action should be completed, as provided in §34.44; (C) Whether it will be necessary for the recipient to enter into a written assurance and/or Conciliation Agreement, as provided in §34.45; and (D) The opportunity to engage in voluntary compliance negotiations. (ii) Where no violation is found, the recipient shall be so informed in writing. (4) The time limit for submitting data to the Director pursuant to paragraph (c)(2)(iii) of this section may be modified by the Director. (a) The Director may issue a Notice to Show Cause to a recipient failing to comply with the requirements of this part, where such failure results in the inability of the Director to make a finding. Such a failure includes, but is not limited to, the failure or refusal to: (1) Submit requested data within 30 days of the receipt of the Notification Letter; (2) Submit documentation requested during a compliance review; or (3) Provide the Directorate access to a recipient's premises or records during a compliance review. (b) The Notice to Show Cause shall contain: (1) A description of the violation and a citation to the pertinent nondiscrimination or equal opportunity provision(s) of JTPA and this part; (2) The corrective action necessary to achieve compliance or, as may be appropriate, the concepts and principles of acceptable corrective or remedial action and the results anticipated; and (3) A request for a written response to the findings, including commitments to corrective action or the presentation of opposing facts and evidence. (c) Such Notice to Show Cause shall give the recipient 30 days to show cause why enforcement proceedings under the nondiscrimination and equal opportunity provisions of JTPA or this part should not be instituted. A recipient may make such a showing by, among other means: (1) Correcting the violation(s) that brought about the Notice to Show Cause and entering into a written assurance and/or entering into a Conciliation Agreement, as appropriate, pursuant to §34.45(d); (2) Demonstrating that the Directorate does not have jurisdiction; or (3) Demonstrating that the violation alleged by the Directorate did not occur. (d) If the recipient fails to show cause why enforcement proceedings should not be initiated, the Director shall follow the procedures outlined in §34.46. (e) The 210 day requirement provided for in §34.40(c)(3) shall be tolled during the pendency of a Notice to Show Cause. (a) Each recipient shall adopt and publish procedures for processing complaints that allege a violation of the nondiscrimination and equal opportunity provisions of JTPA or this part. The procedures shall provide for the prompt and equitable resolution of such complaints. In the case of service providers, the procedures required by this paragraph shall be adopted and published on behalf of the service provider by the Governor, the SDA grant recipient or the Substate grantee, as provided in the State's Methods of Administration. (b) The recipient's Equal Opportunity Officer, or in the case of a small recipient, the person designated pursuant to §34.22(c), shall be responsible for the adoption and publication of procedures pursuant to paragraph (a) of this section, and for ensuring that such procedures are followed. (c) A recipient who processes a complaint alleging a violation of the nondiscrimination and equal opportunity provisions of JTPA or this part shall provide the complainant with written notification of the resolution within 60 days of the filing of the complaint. Such notification shall include a statement of complainant's right to file a complaint with the Director. (a) Who may file. Any person who believes that he or she or any specific class of individuals has been or is being subjected to discrimination prohibited by the nondiscrimination and equal opportunity provisions of JTPA or this part may file a written complaint by him or herself or by a representative. (b) Where to file. The complaint may be filed either with the recipient or with the Director. (c) Time for filing. A complaint filed pursuant to this part must be filed within 180 days of the alleged discrimination. The Director, for good cause shown, may extend the filing time. This time period for filing is for the administrative convenience of the Directorate and does not create a defense for the respondent. (d) Contents of complaints. Each complaint shall be filed in writing and shall: (1) Be signed by the complainant or his or her authorized representative; (2) Contain the complainant's name and address (or specify another means of contacting him or her); (3) Identify the respondent; and (4) Describe the complainant's allegations in sufficient detail to allow the Director or the recipient, as applicable, to determine whether: (i) The Directorate or the recipient, as applicable, has jurisdiction over the complaint; (ii) The complaint was timely filed; and (iii) The complaint has apparent merit, i.e., whether the allegations, if true, would violate any of the nondiscrimination and equal opportunity provisions of JTPA or this part. The information required by this paragraph may be provided by completing and submitting the Directorate's Complaint Information and Privacy Act Consent Forms. (e) Right to Representation. Each complainant and respondent has the right to be represented by an attorney or other individual of his or her own choice. (f) Election of recipient-level complaint processing. Any person who elects to file his or her complaint with the recipient shall allow the recipient 60 days to process the complaint. (1) If, during the 60-day period, the recipient offers the complainant a resolution of the complaint but the resolution offered is not satisfactory to the complainant, the complainant or his or her representative may file a complaint with the Director within 30 days after the recipient notifies the complainant of its proposed resolution. (2) Within 60 days, the recipient shall offer a resolution of the complaint to the complainant, and shall notify the complainant of his or her right to file a complaint with the Director, and inform the complainant that this right must be exercised within 30 days. (3) If, by the end of 60 days, the recipient has not completed its processing of the complaint or has failed to notify the complainant of the resolution, the complainant or his or her representative may, within 30 days of the expiration of the 60-day period, file a complaint with the Director. (4) The Director may extend the 30-day time limit if the complainant is not notified as provided in paragraph (f)(2) of this section, or for other good cause shown. (5) Notification of no jurisdiction. The recipient shall notify the complainant in writing immediately upon determining that it does not have jurisdiction over a complaint that alleges a violation of the nondiscrimination and equal opportunity provisions of JTPA or this part. The notification shall also include the basis for such determination, as well as a statement of the complainant's right to file a written complaint with the Director within 30 days of receipt of the notification. (g) Complaints filed with the Director. (1) Notification of acceptance of complaint. The Director shall determine whether the Directorate will accept a complaint filed pursuant to this section. Where the Directorate accepts a complaint for investigation, he or she shall: (i) Acknowledge acceptance of the complaint for investigation to the complainant and the respondent, and (ii) Advise the complainant and respondent of the issues over which the Directorate has accepted jurisdiction. (2) Any complainant, respondent, or the authorized representative of any complainant or respondent, may contact the Directorate for information regarding the complaint filed pursuant to this section. (3) Where a complaint contains insufficient information, the Director shall seek the needed information from the complainant. If the complainant is unavailable after reasonable means have been used to locate him or her, or the information is not furnished within 15 days of the receipt of such request, the complaint file may be closed without prejudice upon notice sent to the complainant's last known address. (4) The Director may issue a subpoena, as authorized by Section 163(c) of JTPA, directing the person named therein to appear and give testimony and/or produce documentary evidence, before a designated representative, relating to the complaint being investigated. Such attendance of witnesses, and the production of such documentary evidence, may be required from any place in the United States, at any designated time and place. (5) Where the Directorate lacks jurisdiction over a complaint, he or she shall: (i) So advise the complainant, indicating why the complaint falls outside the coverage of the nondiscrimination and equal opportunity provisions of JTPA or this part; and (ii) Where possible, refer the complaint to an appropriate Federal, State or local authority. (6) Where a complaint lacks apparent merit or has not been timely filed, it need not be investigated. Where a complaint will not be investigated, the Director shall so inform the complainant and indicate the basis for that determination. (7) Where a complaint alleging discrimination based on age falls within the jurisdiction of the Age Discrimination Act of 1975, as amended, the Director shall refer the complaint in accordance with the provisions of 45 CFR 90.43(c)(3), and shall so advise the complainant and the respondent. (8) Where a complaint solely alleges a charge of individual employment discrimination covered by the nondiscrimination and equal opportunity provisions of JTPA or this part and by title VII of the Civil Rights Act of 1964, as amended (42 U.S.C. 2000e to 2000e–17), the Equal Pay Act of 1963, as amended (29 U.S.C. 206(d)), or the Age Discrimination in Employment Act of 1976, as amended (29 U.S.C. 621, et seq.), the Director shall refer such “joint complaint” to the Equal Employment Opportunity Commission for investigation and conciliation under procedures for handling joint complaints at 29 CFR part 1691, and shall advise the complainant and the respondent of the referral. (9) Determinations. The Director shall determine at the conclusion of the investigation of a complaint whether there is reasonable cause to believe that a violation of the nondiscrimination and equal opportunity provisions of JTPA or this part has occurred. (i) Upon making such a cause finding, the Director shall issue an Initial Determination. The Initial Determination shall notify the complainant and the respondent, in writing, of: (A) The specific findings of the investigation; (B) The proposed corrective or remedial action and the time by which the corrective or remedial action must be completed, as provided in §34.44; (C) Whether it will be necessary for the respondent to enter into a written agreement, as provided in §34.45; and (D) The opportunity to engage in voluntary compliance negotiations. (ii) Where a no cause determination is made, the complainant and the respondent shall be so notified in writing. Such determination represents final agency action of the Department. (a) A Letter of Findings, Notice to Show Cause, or Initial Determination, issued pursuant to §§34.40, 34.41 or 34.43 respectively, shall include the specific steps the grant applicant or recipient, as applicable, must take within a stated period of time in order to achieve voluntary compliance. (b) Such steps shall include, but are not limited to: (1) Actions to end and/or redress the violation of the nondiscrimination and equal opportunity provisions of JTPA or this part; (2) Make whole relief where discrimination has been identified, including, as appropriate, back pay (which shall not accrue from a date more than 2 years prior to the filing of the complaint or the initiation of a compliance review) or other monetary relief; hire or reinstatement; retroactive seniority; promotion; benefits or other services discriminatorily denied; and (3) Such other remedial or affirmative relief as the Director deems necessary, including but not limited to outreach, recruitment and training designed to ensure equal opportunity. (c) Monetary relief may not be paid from Federal funds. (a) State Programs. (1) Violations at State-office level. Where the Director has determined that a violation of the nondiscrimination and equal opportunity provisions of JTPA or this part has occurred at the State-office level, he or she shall notify the Governor through the issuance of a Letter of Findings, Notice to Show Cause or Initial Determination, as appropriate, pursuant to §§34.40, 34.41 or 34.43 respectively. The Director may secure compliance with the nondiscrimination and equal opportunity provisions of JTPA and this part through, among other means, the execution of a written assurance and/or Conciliation Agreement, pursuant to paragraph (d) of this section. (2) Violations below State-office level. Where the Director has determined that a violation of the nondiscrimination and equal opportunity provisions of JTPA or this part has occurred below the State-office level, the Director shall so notify the Governor and the violating recipient(s) through the issuance of a Letter of Findings, Notice to Show Cause or Initial Determination, as appropriate, pursuant to §§34.40, 34.41 or 34.43 respectively. (i) Such issuance shall: (A) Direct the Governor to initiate negotiations immediately with the violating recipient(s) to secure compliance by voluntary means; (B) Direct the Governor to complete such negotiations within 30 days of the Governor's receipt of the Notice to Show Cause or within 45 days of the Governor's receipt of the Letter of Findings or Initial Determination, as applicable. The Director reserves the right to enter into negotiations with the recipient at any time during the period. For good cause shown, the Director may approve an extension of time to secure voluntary compliance. The total time allotted to secure voluntary compliance shall not exceed 60 days. (C) Include a determination as to whether compliance should be achieved by: Immediate correction of the violation(s) and written assurance that such violations have been corrected, pursuant to paragraph (d)(1) of this section; entering into a written Conciliation Agreement pursuant to paragraph (d)(2) of this section; or both. (ii) If the Governor determines, at any time during the period described in paragraph (a)(2)(i)(B), that a recipient's compliance cannot be achieved by voluntary means, the Governor shall so notify the Director. (iii) If the Governor is able to secure voluntary compliance pursuant to paragraph (a)(2)(i) of this section, he or she shall submit to the Director for approval, as applicable: written assurance that the required action has been taken, as described in paragraph (d)(1) of this section; and/or a copy of the Conciliation Agreement, as described in paragraph (d)(2) of this section. (iv) The Director may disapprove any written assurance or Conciliation Agreement submitted for approval pursuant to paragraph (a)(2)(iii) of this section that fails to satisfy each of the applicable requirements provided in paragraph (d) of this section. (b) National Programs. Where the Director has determined that a violation of the nondiscrimination and equal opportunity provisions of JTPA or this part has occurred in a National Program, he or she shall notify the National Program recipient by issuing a Letter of Findings, Notice to Show Cause or Initial Determination, as appropriate, pursuant to §§34.40, 34.41 or 34.43 respectively. The Director may secure compliance with the nondiscrimination and equal opportunity provisions of JTPA and this part through, among other means, the execution of a written assurance and/or Conciliation Agreement pursuant to paragraph (d) of this section, as applicable. (c) Written assurance; Conciliation Agreement. (1) Written assurance. A written assurance developed pursuant to this section must provide documentation that the violations listed in the Letter of Findings, Notice to Show Cause or Initial Determination, as applicable, have been corrected. (2) Conciliation Agreement. A Conciliation Agreement developed pursuant to this section must: (i) Be in writing; (ii) Address each cited violation; (iii) Specify the corrective or remedial action to be taken within a stated period of time to come into compliance; (iv) Provide for periodic reporting, as determined by the Director, on the status of the corrective and remedial action; (v) Provide that the violation(s) will not recur; and (vi) Provide for enforcement for a breach of the agreement. (a) The Director shall conclude that compliance cannot be secured through informal means when: (1) The grant applicant or recipient fails or refuses to correct the violation(s) within the applicable time period established by the Letter of Findings, Notice to Show Cause or Initial Determination; or (2) The Director has not approved an extension of time in which to secure voluntary compliance, pursuant to §34.45(a)(2)(i)(B), and: (i) Has not received notification pursuant to §34.45(a)(2)(iii) that voluntary compliance has been achieved; or (ii) Has disapproved a written assurance or Conciliation Agreement, pursuant to §34.45(a)(2)(iv); or (iii) Has received notice from the Governor, pursuant to §34.44(a)(2)(ii), that voluntary compliance cannot be achieved. (b) Upon so concluding, the Director may: (1) Issue a Final Determination which shall: (i) Specify the efforts made to achieve voluntary compliance and indicate that those efforts have been unsuccessful; (ii) Identify those matters upon which the Directorate and the grant applicant or recipient continue to disagree; (iii) List any modifications to the findings of fact or conclusions set forth in the Initial Determination, Notice to Show Cause or Letter of Findings; (iv) Determine the liability of the grant applicant or recipient, as applicable, and establish the extent of the liability, as appropriate; (v) Describe the corrective or remedial action that must be taken for the grant applicant or recipient to come into compliance; (vi) Indicate that the failure of the grant applicant or recipient to come into compliance within 10 days of the receipt of the Final Determination may result, after opportunity for a hearing, in the termination or denial of the grant, or discontinuation of assistance, as appropriate, or in referral to the Department of Justice with a request to file suit; (vii) Advise the grant applicant or recipient of the right to request a hearing, and reference the applicable procedures at §34.51; and (viii) Determine the Governor's liability, if any, in accordance with the provisions of §34.32; or (2) Refer the matter to the Attorney General with a recommendation that an appropriate civil action be instituted; or (3) Take such other action as may be provided by law. Where a compliance review or complaint investigation results in a finding of noncompliance, the Director shall so notify: (a) the Departmental granting agency; and (b) the Assistant Attorney General. (a) Where a Governor is a party to a Conciliation Agreement, the Governor shall immediately notify the Director of a recipient's breach of any such Conciliation Agreement. (b) When it becomes known to the Director, through the Governor or by other means, that a Conciliation Agreement has been breached, the Director may issue a Notification of Breach of Conciliation Agreement. (c) A Notification of Breach of Conciliation Agreement issued pursuant to this section shall be directed, as applicable, to the Governor and/or other party(ies) to the Conciliation Agreement. (d) A Notification of Breach of Conciliation Agreement issued pursuant to paragraph (a) of this section shall: (1) Specify the efforts made to achieve voluntary compliance and indicate that those efforts have been unsuccessful; (2) Identify the specific provisions of the Conciliation Agreement violated; (3) Determine liability for the violation and the extent of the liability, as appropriate; (4) Indicate that failure of the violating party to come into compliance within 10 days of the receipt of the Notification of Breach of Conciliation Agreement may result, after opportunity for a hearing, in the termination or denial of the grant, or discontinuation of assistance, as appropriate, or in referral to the Department of Justice with a request from the Department to file suit; (5) Advise the violating party of the right to request a hearing, and reference the applicable procedures at §34.51(b); and (6) Include a determination as to the Governor's liability, if any, in accordance with the provisions of §34.32. (e) Where enforcement action pursuant to a Notification of Breach of Conciliation Agreement is commenced, the Director shall so notify: the Departmental granting agency; and the Governor, recipient or grant applicant, as applicable.
Title 29: Labor
PART 34—IMPLEMENTATION OF THE NONDISCRIMINATION AND EQUAL OPPORTUNITY REQUIREMENTS OF THE JOB TRAINING PARTNERSHIP ACT OF 1982, AS AMENDED (JTPA)
Subpart D—Compliance Procedures
§ 34.40 Compliance reviews.
§ 34.41 Notice to Show Cause.
§ 34.42 Adoption of discrimination complaint processing procedures.
§ 34.43 Complaints and investigations.
§ 34.44 Corrective and remedial action.
§ 34.45 Notice of violation; written assurances; Conciliation Agreements.
§ 34.46 Final Determination.
§ 34.47 Notice of finding of noncompliance.
§ 34.48 Notification of Breach of Conciliation Agreement.
