Part XI.
Texas Commission on Human Rights
Chapter 340.
Administrative Enforcement
40 TAC §340.2
The Texas Commission on Human Rights adopts an amendment
to §340.2, concerning Who May File Complaints, with non-substantive changes
to the proposal as published in the February 19, 1999, issue of the
Due to this adopted action, two members of the Commission will be allowed
to initiate complaints of housing discrimination, rather than allowing the
Executive Director the sole authority to initiate complaints.
No comments were received regarding the adoption of the amendment.
This amendment is adopted under Texas Government Code, Chapter
2001, Subchapter B, Sections 2001.021-2001.038, which provide the Texas Commission
on Human Rights with the authority to amend and rescind this rule in accordance
with the Administrative Procedure Act.
§340.2. Who May File Complaints.
(a)
Any aggrieved person or the commission may file a complaint
no later than one year after an alleged discriminatory housing practice has
occurred or terminated whichever is later. The complaint may be filed with
the assistance of an authorized representative of an aggrieved person, including
an organization acting on behalf of an aggrieved person.
(b)
Should the executive director receive information from
credible sources that one or more persons or entities may have violated the
rights of one or more persons protected by the Act, the executive director
shall forward such information to the chairman of the commission, who shall
appoint two commissioners to consider whether or not the commission should
initiate a complaint.
(1)
If both commissioners agree that a potential violation
of the Act may exist, the commission may initiate a formal complaint of housing
discrimination against the person(s) or entities alleged to have violated
the Act.
(2)
Once both commissioners have approved the initiation
of a complaint, the processing and the investigation of the complaint shall
be handled in the same manner as any other complaint.
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 May
25, 1999.
TRD-9903094
Brooks Wm. (Bill) Conover, III
General Counsel
Texas Commission on Human Rights
Effective date: June 14, 1999
Proposal publication date: February 19, 1999
For further information, please call: (512) 437-3457
Chapter 839.
Welfare to Work
The Texas Workforce Commission (Commission) adopts new §§839.11,
839.12, 839.31-839.34, and 839.38-839.47, relating to grievance procedures
for the Welfare to Work program.
The Commission withdraws and re-proposes new §§839.35-839.37
for an additional 30-day comment period in this issue of the
Texas Register
.
New §§839.32-839.34, 839.38-839.40, and §§839.42-839.46
are adopted with changes to the proposed text as published in the February
12, 1999, issue of the
Texas Register
(24
TexReg 932). Sections 839.11, 839.12, 839.31, 839.41, and 839.47 are adopted
without changes and will not be republished.
The Balanced Budget Act of 1997 authorized the U.S. Department of Labor
(DOL) to provide Welfare-to-Work (Welfare to Work) Formula Grants to states
and local communities to create additional job opportunities for hard-to-employ
recipients of Temporary Assistance for Needy Families (TANF). These grants
will provide many welfare recipients with job placement services, transitional
employment, and other support services that they need to make the successful
progression into long-term unsubsidized employment. The State Welfare to Work
plan is an addendum to the State's TANF plan.
Under the Welfare to Work Formula Grant Program, Texas will allocate 85
percent of its funding from DOL to the Boards. If a Local Workforce Development
Area does not have a certified Board, the funds for that area will be allocated
to the Private Industry Council (PIC) for that area. Boards have the jurisdiction
and the authority to develop local policy, to determine which segments of
the eligible population to target, to determine service delivery practices
and procedures, to set the services and activities available in each local
workforce development area, to demonstrate collaboration with other local
partners, and to provide in-kind matching funds for the program. These activities
and services are to be delivered consistent with federal and state laws, regulations,
rules, and policies.
Under the Welfare to Work law, states are required to establish and maintain
a grievance procedure for resolving complaints from program participants with
regard to nondiscrimination, health and safety, gender discrimination and
worker displacement, and from regular employees alleging displacement, as
required by the Welfare to Work statute and regulations. The guidelines include
an opportunity for informal resolution. If informal resolution cannot be reached,
the rules provide the procedure for a dissatisfied party to receive a hearing.
These procedures comply with the federal timeline that no later than 120 days
after receipt of an individual's original grievance, a final written determination
of any appeal must be finalized.
The Commission held a public hearing on April 8, 1999, in room 244 of the
Commission Building on 101 East 15th Street, Austin, TX. The following appeared
to provide their comments on the proposed rules: Texas AFL-CIO and the Texas
Appleseed Advocacy Fund.
Written comments expressing concern and suggestions regarding some sections
of the rules were received from the North Central Texas Local Workforce Development
Board, Coastal Bend Workforce Centers, and the State Office of Administrative
Hearings. Following each comment is the Commission's response.
Comments regarding §839.12, Gender Discrimination, and §839.31,
Purpose and Coverage, are as follows:
Comment: A commenter requests a clarification of the reason gender discrimination,
which is a protected category under federal legislation, is included in the
Welfare to Work Grievance procedures.
Response: The Welfare to Work federal law and regulations require the State
to establish a grievance procedure for grievances regarding displacement,
violations of health and safety standards, and gender discrimination.
Comments regarding §839.33, Definitions, are as follows:
Comment: A commenter expresses confusion regarding the definition of SOAH.
The definition states that SOAH can review the "local level hearing decision."
The Commission issues a hearing decision, the decision is not made at the
local level. This appears again in §839.45.
Response: The Commission concurs and has clarified the language.
Comment: A commenter requests that the Commission define "health and safety
standards."
Response: The federal regulations state that the Welfare to Work participants
are subject to the same health and safety standards established under state
and federal law which are applicable to similarly employed employees of the
same employer, who are not participants in programs under Welfare to Work.
The Commission believes that the federal regulations define "health and safety
standards" sufficiently enough to provide notice to those involved in the
Welfare to Work program.
Comment: A commenter requests that displacement, as it pertains to program
participants and regular employees, be defined.
Response: Displacement is defined in the federal Welfare to Work regulations
at 20 C.F.R. §645.265. The Commission does not believe that it is necessary
to repeat federal law in state rules.
Comment: Two commenters request that the definition of "complainant" be
expanded to allow an organization, a church, a union, or a community organization
to intervene on behalf of an employee. One commenter suggested incorporating
a concept of "authorized representative" into the rules.
Response: The federal Welfare to Work regulations specifically state that
the grievance procedure is for resolving complaints from regular employees
and program participants. The state Welfare to Work rules are consistent with
federal regulations. The Commission disagrees with expanding the definition
beyond the federal regulations.
Comments regarding §839.34, Grievance Filing Procedure at the Local
Level, are as follows:
Comment: One commenter asserts that the requirement that the complainant
provide a copy of the grievance to Commission as well as to the local contractor
appears burdensome and should be the responsibility of the EO officer.
Response: The Commission concurs that this is burdensome to the complainant
and will change the language to require the local Equal Opportunity (EO) Officer
to forward any complaints to Commission.
Comment: A commenter asserts that the requirement for additional information,
such as whether or not an informal hearing was held, appears burdensome.
Response: The information required on the form is necessary information
for the Commission to obtain in order to conduct the public hearing. The Commission
has developed a "Welfare to Work Request for Hearing Form" to assist in filing
complaints. The Commission believes that this will alleviate any undue burden.
Comment: A commenter asserts that the process for filing a grievance is
applicable to filing a request for a hearing from the Commission, not to filing
a complaint at the local level.
Response: The local contractors will be responsible for coordinating and
overseeing all grievance complaints. The Commission will only serve as the
entity to conduct the hearing. Therefore, all grievances will still be filed
at the local level.
Comments regarding §839.36, Welfare to Work Provider Responsibilities,
are as follows:
Comment: A commenter requests that "Welfare to Work subrecipient" be defined.
The commenter asks if this is the employer of an individual participating
in the Welfare to Work program or the individual.
Response: The term "subrecipient" refers to an employer who has accepted
a Welfare to Work participant. The Commission will add a definition of "subrecipient"
to §839.33 to clarify this.
Comment: A commenter states that if the definition of "Contractor" is "a
service provider for the Board," this appears to imply that Local Workforce
Development Areas (LWDAs) with more than one service provider will have more
than one EO Officer and more than one complaint system. The commenter suggests
that a more consistent approach would be to designate one EO Officer per LWDA.
Response: The term "contractor" does refer to a Board's service provider.
All contractors will follow these rules in resolving complaints; therefore,
there will be consistency in this process across the State. Due to changes
to this rule, the Commission has withdrawn and re-proposed §839.36 of
this title (relating to Welfare to Work Provider Responsibilities) for an
additional 30-day comment period.
Comments regarding §839.37, Orientation to Complaint Procedure, are
as follows:
Comment: A commenter suggests that the term "enroll" be replaced with the
phrase "at the time of application" since all applicants may not enroll in
the Welfare to Work program.
Response: Consistent with the Workforce Investment Act state rules, the
Commission has eliminated this provision from the state Welfare to Work rules
as an orientation to complaint procedure is not required by the federal Welfare
to Work rules. Due to this change, the Commission has withdrawn and re-proposed
§839.37 as reserved for expansion for an additional 30-day comment period.
Comment: A commenter suggests that the Spanish version of the Orientation
to Complaint Form be available from the Commission.
Response: The Commission has deleted §839.37 of this title (related
to Orientation to Complaint Procedure) in favor of internal Board record keeping,
as referenced in the re-proposed §839.36 of this title (relating to Welfare
to Work Provider Responsibilities). Due to this change, §839.37 is withdrawn,
reserved for expansion, and re-proposed for an additional 30-day comment period.
Comments regarding §839.38, Local Level Informal Conference Procedure,
are as follows:
Comment: A commenter suggests that the timeframes outlined in the Job Training
Partnership Act (JTPA) Grievance Procedures be utilized for this program.
This timeframe would be used for scheduling an informal conference after receipt
of the properly completed grievance form and completion of the written determination.
Response: The federal regulations on the grievance procedure for Welfare
to Work are not the same as the JTPA federal regulations. The Welfare to Work
federal regulations require that the total grievance procedure take no longer
than 120 days after the receipt of a written complaint. Pursuant to federal
law, the Commission cannot apply the JTPA timeframes to the Welfare to Work
program. An LWDB, at its own discretion, may schedule an informal conference
after receipt of the Welfare to Work Request for Hearing Form. Caution must
be taken to ensure that the 120-day limit is met.
Comment: A commenter suggests that, because the hearing is conducted by
a Commission hearing officer and does not occur at the local level, the word
"hearing" be replaced with "informal conference."
Response: The term "hearing" refers to the hearing held by the Commission.
The term is necessary to distinguish between the informal conference held
at the local level and the hearing held by the Commission. Therefore, the
Commission declines to make this change.
Comment: A commenter requests further clarification concerning when the
local EO Officer would bypass the informal conference and if that would occur
at the request of the complainant or at the discretion of the local EO Officer.
Response: The Commission has left it to the discretion of the LWDBs/PICs
to determine if an informal conference should be scheduled. The 120-day limit
begins upon receipt of a written grievance. Due to this, the informal conference
must be held within 20 days of receipt of the Commission/Welfare to Work Request
for Hearing Form. Section 839.38(a) will be amended to reflect this timeframe.
Comment: A commenter requests that language be added to require the Commission
to schedule a formal hearing rather than the local EO Officer since the hearing
is conducted by the Commission.
Response: The Commission concurs and has amended the rules. If there is
no informal conference, or if the complainant requests a hearing upon receiving
the decision on the informal conference, the EO Officer must inform the Appeals
department of the Commission of the need for a hearing.
Comments regarding §839.39, Opportunity and Request for a Hearing,
are as follows:
Comment: A commenter requests further clarification regarding whether the
local EO Officer may assist the complainant in completing the complaint form
if there is no informal conference and a hearing is desired.
Response: The EO Officer may assist complainants with the Welfare to Work
grievance procedure, if it is local policy to do so. However, it is not required
by these rules. The Commission amends §839.35(a) and §839.36 to
reflect this change. Due to these changes, the Commission has withdrawn and
re-proposed §839.35 of this title (related to Time Limitations at Local
Level) and §839.36 of this title (relating to Welfare to Work Provider
Responsibilities), for an additional 30-day comment period.
Comments regarding §839.40, Notice of Hearing, are as follows:
Comment: A commenter requests that language be changed to require the Commission
to send a notice of the setting of the hearing, since the Commission conducts
the hearing, rather than the local EO Officer.
Response: The Commission concurs and will revise the rule to reflect this
change.
Comment: A commenter requests clarification regarding the date the complaint
is received. The commenter asks if the date refers to the date the local EO
Officer receives the written request or the date that the Commission receives
the written request.
Response: The date the complaint is received refers to the date the contractor
receives the complaint, not the date that the Commission receives the complaint.
Language will be added to clarify this in §§839.39 and 839.40.
Comment: A commenter requests that the written notice of withdrawal of
a complaint be filed with the Commission, rather than with the EO Officer.
Response: The Commission agrees that the notice of withdrawal must be sent
to the Commission hearing officer if applicable. However, the notice shall
also be sent to the local EO officer. The rule has been amended accordingly.
Comments regarding §839.42, Hearing Procedure, are as follows:
Comment: A commenter believes it is the responsibility of the Commission
to arrange for a transcript of the hearing by a certified court reporter,
or to make arrangements for the making of an audible, understandable electronic
recording of the hearing, not the local EO Officer, since it is the responsibility
of the Commission to conduct the hearing.
Response: The Commission concurs that it would be easier for the Commission
to make arrangements for a transcript or an electronic recording of any hearing.
Language will be added to clarify that this will be the responsibility of
the Commission.
Comments regarding §839.43, Written Decision, are as follows:
Comment: A commenter believes it is the responsibility of the Commission
to provide a copy of the written decision to all parties of the complaint;
that it appears to add an unnecessary and inefficient step to the process
when this responsibility is transferred to the local EO Officer.
Response: The Commission concurs and will revise the rule to reflect this
change.
Comments regarding §839.44, Request for Review of a Written Decision,
are as follows:
Comment: A commenter believes that the Commission should include in its
written decision a notice that SOAH may review the decision.
Response: The Commission concurs and will revise the rule to reflect this
change.
Comment: A commenter requests that the language be amended to require that
a party file a request for review with the Commission. The Commission would
then initiate a case at SOAH by filing a request to docket the matter. The
commenter asserts that this would be consistent with their procedure that
a case be commenced at the agency with appropriate subject matter jurisdiction.
The commenter further asserts that this would prevent requests for review
that are not timely filed or that are incomplete from being referred to SOAH,
would allow the Commission to provide SOAH with the correct names and mailing
addresses of all parties to the dispute, and would simplify the process for
the appealing party.
Response: The Commission concurs and will revise the rule to reflect this
change.
Comments regarding §839.45, Procedure for Review by SOAH, are as follows:
Comment: Two commenters suggest that the Commission should provide the
complete file information to SOAH. One commenter suggests that this would
ensure that the file forwarded to SOAH would be true and correct, without
inadvertent deletions or additions. The commenter believes that this would
also lessen the opportunity for a hearing record to be lost.
Response: The Commission concurs and will revise the rule to reflect this
change. However, the Commission believes that, upon completion of SOAH's review,
the official file should be retained at the local level.
Comments regarding §839.46, Final Written Decision, are as follows:
Comment: A commenter requests clarification regarding what is meant by
"a properly completed request for review" in this section. Does this refer
to a request for review by the State Office of Administrative Hearings (SOAH),
or to the initial request for review received by the Commission hearing officer?
Response: This sentence refers to a request submitted to SOAH. Language
will be inserted to clarify this.
Comment: A commenter requests clarification regarding how this section
relates to a complaint regarding gender discrimination, a protected category
under federal legislation.
Response: The Welfare to Work federal law and regulations require the State
to establish a grievance procedure for grievances regarding displacement,
violations of health and safety standards, and gender discrimination. The
federal requirements for an appeal of the hearing decision also apply to gender
discrimination.
Comments regarding §839.47, Remedies, are as follows:
Comment: Two commenters request that the remedies be expanded to allow
for reinstatement of a displaced employee and other equitable relief. The
commenters asserted that the federal law allows for these two remedies.
Response: The federal law requires that the grievance rules contain remedies.
The federal law and regulations list four remedies which the state may incorporate,
at the state's discretion. As the state does not have the authority to require
a private employer to rehire an individual, the state chose two of the available
options. As the state continues to believe that we do not have the authority
to require a private employer to rehire an individual, the Commission declines
to amend the rule.
Miscellaneous Comments are as follows:
Comment: A commenter requests that the Welfare to Work grievance rules
require the entity (subrecipient) who is getting subsidized work to notify
any collective bargaining representative in their workplace.
Response: The federal regulations (20 C.F.R. §645.265) state when
a labor organization is to be notified of an employment activity operated
with Welfare to Work funds. The Commission declines to create requirements
beyond those included in federal law. Therefore, the Commission declines to
amend the rules to incorporate this suggestion.
The Commission has amended §839.32 by deleting the reference to "Welfare
to Work Complaint Form" and by amending the reference to §839.37(b).
The new reference is to §839.34(b).
The Commission has amended §§839.34, 839.38, and 839.40 by changing
"Welfare to Work Grievance Information Form" to read "Commission/Welfare to
Work Request for Hearing Form."
The Commission has amended §839.40 regarding the timeframes for the
hearing.
The Commission has added a subsection to §839.42 to assist the Hearing
Officer.
Subchapter B. Nondiscrimination and Equal Opportunity
Part XX.
Texas Workforce Commission