40 TAC §801.33
The Texas Workforce Commission (Commission) adopts the following
new section to Chapter 801, relating to Local Workforce Development Boards,
without changes to the proposed text as published in the September 29, 2006,
issue of the
Texas Register
(31 TexReg 8231):
Subchapter B, One-Stop Service Delivery Network, §801.33
PART I. PURPOSE, BACKGROUND, AND AUTHORITY
PART II. EXPLANATION OF INDIVIDUAL PROVISIONS
PART I. PURPOSE, BACKGROUND, AND AUTHORITY
The purpose of the adopted new rule is to implement Senate Bill (SB) 998,
enacted by the 79th Texas Legislature, Regular Session (2005), which amends
Texas Government Code §2308.264(e)(4) to allow entities that contract
with Local Workforce Development Boards (Boards) to use, display, and advertise
their business names when providing one-stop workforce services for a Board.
SB 998 directs the Commission to adopt rules that are applicable to any
existing and future contracts for one-stop workforce services to ensure that
any entity contracting with a Board may use, display, and advertise its business
name when providing one-stop workforce services for the Board. Each contractor
is responsible for determining if they want to use, sell, or advertise their
business name. It is not the Board's responsibility to modify any written
material to include the business names of its contractors. Boards must require,
through local policy, that each contractor notify the Board of its intent
to use, display, or advertise its business name when providing one-stop workforce
services.
Texas Government Code Chapter 2308 and this chapter govern Boards. The
Commission adopts new §801.33, relating to Advertising, to Chapter 801,
Subchapter B, One-Stop Service Delivery Network.
PART II. EXPLANATION OF INDIVIDUAL PROVISIONS
SUBCHAPTER B. ONE-STOP SERVICE DELIVERY NETWORK
The Commission adopts the following new section:
§801.33. Advertising.
Section 801.33(a) requires that within 120 days of the effective date of
this rule or within three Board meetings, Boards must develop policies that
specify the limitations and restrictions regarding the use, display, and advertising
of contractors' business names when providing one-stop workforce services
for the Boards. These policies will be applicable only in the event that a
contractor or prospective contractor requests to advertise.
Section 801.33(a)(1) states that a Board's policies must address the requirement
that a contractor's business name be displayed in a subordinate position to
the Board's name in terms of size, placement, stature, and location.
Section 801.33(a)(1)(A) states that a Board's policies must address the
advertising medium to be used, such as the Internet, radio, television, and
print.
Section 801.33(a)(1)(B) states that a Board's policies must address the
design of the advertising medium.
Section 801.33(a)(2) requires a Board to develop a local policy that requires
contractors and prospective contractors to provide the Board advance written
notice of their intent to use, display, or advertise their business name.
For example, a Board may require contractors to provide 30-days written notice
if they intend to use, display, or advertise their business name. In addition,
a Board may include a provision in a Request for Proposals that prospective
contractors state their intent to advertise in the proposal.
Section 801.33(a)(3) requires Boards to develop policies prohibiting a
contractor's or prospective contractor's business-name recognition from being
a factor in evaluating a proposal for services.
Section 801.33(a)(4) states that a Board's policies must address the limitations
necessary to avoid potential confusion of employers and job seekers attempting
to access one-stop workforce services. Boards, as well as the entire Texas
workforce system, maintain a vested interest in controlling and protecting
the business relationships developed with local employers and the goodwill
developed with job seekers and the public. An advertising strategy that creates
customer confusion potentially makes one-stop workforce services inaccessible
to employers and job seekers--if customers cannot find your business, they
cannot access your services. Among other things, customer confusion prevents
an efficient and effective labor exchange between employers and job seekers,
thus undermining a critical, core mission of the Texas workforce system. When
developing policies to address contractor advertising, Boards also should
consider events such as contractor turnover, which may create a significant
negative impact on the continuity of a Board's image if the contractor's brand
dominates to the detriment of the Board brand. A Board's advertising policy:
--may direct how contractor staff outreaches and communicates with employers;
--will establish parameters that align with its branding strategy; and
--may allow a contractor's business name to be advertised in print material
only, by limiting greetings or introductions to the Board's brand.
Section 801.33(a)(5) states that a Board's policies must address the methods
of holding contractors accountable. A Board may include a provision on adherence
to its advertising policies in existing and future contracts for one-stop
workforce services.
Section 801.33(a)(6) states that a Board's policies must address how a
contractor or prospective contractor will address the requirement that Commission-contracted
funds must not be used for advertising. The Board's policies must require
the contractor or prospective contractor to disclose the source of funds to
be used for advertising. The Board's policies must also require an attestation
from the contractor or prospective contractor that no Commission-contracted
funds will be used for advertising.
Section 801.33(b) requires that Commission-contracted funds must not be
used for costs associated with advertising the contractor's business name.
Boards and contractors are prohibited from using these funds to pay for costs
such as displaying the contractor's business name on materials used in performing
contracted duties; replacing the contractor's unused advertising materials;
and removing the contractor's business name from signs remaining on a Texas
Workforce Center's premises.
Section 801.33(c) allows Boards to charge an outgoing contractor for the
cost of replacing unused materials containing the outgoing contractor's business
name and the cost of removing the outgoing contractor's business name from
signs remaining on a Texas Workforce Center's premises.
Section 801.33(d) requires Boards to be the final decision-making authority
related to Boards' policies on contractor advertising. As a result, there
will be no appeal to the Commission.
No comments were received regarding the new rule.
The Agency hereby certifies that the rule has been reviewed by legal counsel
and found to be within the Agency's legal authority to adopt.
The rule is adopted under Texas Labor Code §301.0015 and §302.002(d),
which provide the Texas Workforce Commission with the authority to adopt,
amend, or repeal such rules as it deems necessary for the effective administration
of Agency services and activities.
The adopted rule affects Texas Labor Code, particularly Chapters 301 and
302, as well as Texas Government Code Chapter 2308.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on December 19, 2006.
TRD-200606822
Reagan Miller
Deputy Director for Workforce and UI Policy
Texas Workforce Commission
Effective date: January 8, 2007
Proposal publication date: September 29, 2006
For further information, please call: (512) 475-0829