WIATL 30 (Guidelines Regarding Job Orders and Employer Services)
Workforce Investment Act Transmittal Letter No. 30
May 7, 2007
TO: Local Elected Officials, WIA Local Workforce Investment Boards (WIBs), Fiscal Agents, Administrative Entities, and One-Stop Operators
FROM: Helen E. Jones-Kelley, Director
SUBJECT: Guidelines Regarding Job Orders and Employer Services

I.Purpose

To provide guidelines to local areas for accepting job orders; to define the conditions under which job orders or services to employers can be refused; and to address policies regarding quality control of job orders.

II.Effective Date:

Immediately.

III.Background

Section 7(a)(2) of the Wagner-Peyser Act, as amended by the Workforce Investment Act of 1998, Public Law 105-220, dated August 7, 1998, authorizes appropriate recruitment services and special technical services for employers.

IV.Guidance Statement

One-Stop staff should adhere to a uniform method of determining when job orders should be taken or refused, what constitutes a bona fide job order, and what quality control standards should be set for writing job orders.

A.Types of Job Orders and Appropriate Actions

Although the principle of universal access applies to the provision of services to employers, there are a number of circumstances in which a One-Stop center is required by law, regulation, or policy to refuse a job order. The following information describes specific circumstances surrounding job orders, and what actions should be taken if necessary.

1.Fee for Placement

a.A fee for placement is a charge that consists of direct payment in exchange for the job opening being filled. If an employer or an agency recruiting for an employer wishes to place a job order that would charge the applicant a fee for placement, the One-Stop center should not take the order. The employer or agency should be informed why the order is being refused.

b.The purchase of materials, equipment, and uniforms or payment for testing and licensing by an applicant are not considered fees for placement. If the employer requires that the applicant pay for such items, the job order may be taken as long as the required expenses are listed on the order.

c.The Wagner-Peyser Act does not prohibit the referral of an applicant to a private employment agency as long as the applicant is not charged a fee.

2.Employer-Employee Relationships

a.When an employer-employee relationship does not exist, an order can be refused. Typically an employer-employee relationship does not exist if the worker is an independent contractor, and/or if the employer does not pay Unemployment Compensation (UC) taxes or provide Workers' Compensation on behalf of the worker.

The determination as to whether a job opening will be an employee or an independent contractor can be complex but is essentially made by examining the right to control how, when, and where the person performs services.

There are three basic areas that determine employment status:

  • behavioral control
  • financial control
  • relationship of the parties

Many sources are available for determining employer/employee relationships. For more information, refer to:

b.In the case where the worker is paid straight commission, it is normally not an employer-employee relationship. The employer normally has to guarantee at least minimum wage to an employee in order for an employer-employee relationship to be established. One-Stop centers have discretion to either accept or refuse job orders for commission-only positions, or require the employer to use the SCOTI Bulletin Board to post such openings. (Examples would be commission-only sales, real estate agents, cab drivers, and newspaper delivery persons.)

3.Bona Fide Job Orders

a.A bona fide job order means that a current and valid job opening exists prior to any referrals being made, and that the One-Stop center has reasonable basis for concluding that the employer is a legitimate employer.

b.Job orders that are received to build a list of applicants for future openings are not bona fide orders and should be refused.

c.One-Stop centers should be alert to the possibility that a job opening or an employer may not be bona fide. Examples of questionable situations may be:

1)When an employer requires any unusual pre-employment action on the part of the applicant such as a deposit for some alleged service (e.g., transportation, dues, food, or lodging); or

2)When an unknown employer indicates that applicants will be interviewed at an address that is not a normal place of business such as a hotel room.

d.Before a job order can be posted in the SCOTI system, the employer must provide its UC Tax number or Federal Employer Identification Number (FEIN). The only exception to this requirement is for domestic job orders where the person seeking a temporary worker is a homeowner, not a bona fide employer. In the case of a business seeking a worker for a very short period of time (1-3 days duration), the job opening should be listed as a casual labor job order, and the employer will be required to provide either a UC Tax number or FEIN. If the One-Stop center cannot verify that the opening or employer is bona fide, the job order may be refused.

4.Pre-designation of Applicants

a.When an employer requests that certain workers be referred on any basis other than an occupational qualification, the job order should be refused. For example, an employer might identify a specific individual to be referred and indicate that he or she is not willing to consider other applicants. Such requests for referrals are considered pre-designation of applicants and make a job order unacceptable. However, an order may be taken if the employer requests that a specific person be referred and is also willing to consider other referrals.

b.An exception to the rule on pre-designation occurs when an employer lists an agricultural job order. In this instance, the employer may request a specific crew leader or worker, and the job order should be accepted.

5.Discrimination

a.Title VII of the Civil Rights Act of 1964, 42 USC § 2000d et seq., prohibits discrimination in hiring, promotion, discharge, pay, fringe benefits, and other aspects of employment, on the basis of race, color, religion, sex, or national origin.

b.Title VI of the Civil Rights Act of 1964, 42 USC § 2000d et seq., prohibits discrimination on the basis of race, color, and national origin in programs and activities receiving federal financial assistance, which would include most workforce development programs and services administered by ODJFS. See also WIA Section 188.

c.The Age Discrimination in Employment Act of 1967 prohibits arbitrary age discrimination in employment against individuals 40 years of age or older by: 1) private employers having 20 or more employees and engaging in an industry affecting interstate commerce, or 2) any governmental entity.

d.Title 1 of the Americans with Disabilities Act (ADA) prohibits employment discrimination against qualified individuals with disabilities.

e.Section 504 of the Rehabilitation Act of 1973 prohibits discrimination against qualified disabled applicants in federally-funded programs and services, including WIA and One-Stop services. See also WIA, Section 188.

f.The Civil Rights Act of 1964 and the Wagner-Peyser Act require that the labor exchange system ensures that discriminatory job orders are not accepted. In addition, the Civil Rights Act of 1964 prohibits the labor exchange system from providing any service to an employer when there are reasonable grounds (i.e. documented evidence) to believe that the employer is engaged in discriminatory practices.

g.An exception to the nondiscrimination laws is a situation involving a Bona Fide Occupational Qualification (BFOQ). BFOQ pertains to an employment decision or request relating to age, sex, national origin, or religion is based on a finding that such a characteristic is necessary to the individual's ability to perform the job in question. Examples of BFOQs would be a request for an actress to portray a female role in a play or movie, or a male attendant to serve in a men's locker room. Certain jobs have bona fide age requirements based on agility (e.g. fire fighter or police officer), legal requirements (e.g. bartender), or insurance requirements (e.g. commercial drivers). Orders with acceptable BFOQs may be written and serviced. See 42 USC 2000.

h.Should an employer wish to list an opening containing discriminatory specifications, and a BFOQ does not exist, the One-Stop center should attempt to persuade the employer to eliminate those discriminatory specifications. If the employer is willing to change his or her requirements, the order may be accepted. Otherwise, the order must be refused.

6.Affirmative Action

a.An affirmative action job order is one that seeks qualified applicants, particularly members of a specified group that, for non-occupationally valid purposes, have been discouraged from entering certain occupational fields. In addition, it is an order that results from:

1)Executive Order No. 11246 and implementing instructions at 41 CFR Chapter 60, requiring certain government contractors to take affirmative action to hire and promote qualified minorities and women; or

2)Section 503 of the Rehabilitation Act of 1973 and implementing regulations at 41 CFR Part 60-741 requiring certain government contractors to take affirmative action to employ and advance in employment qualified disabled workers; or

3)Section 402 of the Vietnam Era Veterans Readjustment Assistance Act of 1974 and implementing regulations at 41 CFR part 60-250 requiring certain government contractors to take affirmative action to employ and advance in employment Vietnam-Era and disabled veterans; or

4)A court order resulting from a decision in which there was a finding of employment discrimination; or

5)A conciliation agreement as authorized by Title VII of the Civil Rights Act; or

6)Provisions of federal, state, or local fair employment practice law; or

7)An affirmative action plan adopted pursuant to the Equal Employment Opportunity Commission's guidelines on Affirmative Action (29 CFR Part 1608).

b.One-Stop centers should accept all legitimate affirmative action job orders and may assist the employer with special applicant searches and recruitment efforts. However, applicant file searches must follow the standard job order processing procedures including veteran preference requirements. For example, if an employer places a job order, indicates that it is an affirmative action order and desires recruitment be done for minorities, the One-Stop center should make every effort to ensure that the requested group is represented among the qualified veterans and other applicants referred. Employers should be advised that an order that requires exclusive referral of a specific applicant group, or referral of a specific applicant group "quota," cannot be serviced as long as these restrictions are held.

c.An affirmative action order should be clearly marked as affirmative action and clearly reflect the employer's needs. An example of appropriate language to be included in the job order requirements section might be: "Affirmative Action: All qualified applicants will be considered. Minorities and women encouraged to apply."

7.Violations of Law

a.Job orders that contain job duties or terms or conditions of employment that are contrary to law should be refused. Examples of such orders would be those specifying pay below the legal minimum wage, requiring the worker to perform illegal activities, or specifying hours for a youth worker in violation of child labor laws.

b.One-Stop centers should explain the legal basis for refusing the order to the employer and offer the opportunity for the order to be modified. If the employer agrees to an appropriate modification, the job order may be accepted. Otherwise, the order must be refused.

8.Labor Disputes

a.A "labor dispute" is defined in 29 USC 152(9) as any controversy concerning the terms or conditions of employment, or any controversy concerning the association or representation of individuals in negotiating, maintaining, changing, or seeking to arrange the terms or conditions of employment.

b.When a labor dispute results in a work stoppage (such as a labor strike, walkout or lockout), One-Stop centers are restricted from accepting or servicing job orders that will directly, or indirectly aid in filling positions that are vacant because the former occupant is on strike or is being locked out in the course of a labor dispute, or the filling of which is otherwise an issue in the labor dispute. See 20 CFR 652.9.

c.One-Stop centers may accept job orders from an employer involved in a labor dispute until a work stoppage occurs, and may accept job orders during a work stoppage as long as the orders are for positions that are not impacted, either directly or indirectly, by the work stoppage.

d.Should job orders for positions not impacted be taken from an employer involved in a work stoppage, One-Stop centers are responsible for notifying any applicants referred that the employer is involved in a labor dispute and that the position listed on the job order is not vacant as a result of the dispute. One-Stop centers are encouraged to include this information in the job description of the job order.

e.Once a labor dispute resulting in a work stoppage has been resolved, the One-Stop center may once again resume full service to the employer. See 20 CFR 652.9.

f.One-Stop centers should be alert to labor disputes that are developing in their areas and are encouraged to contact their ODJFS Local Operations District Coordinator Representative with information on any such disputes. This will help facilitate timely notification of all impacted areas should a work stoppage occur.

9.Membership or Non-membership in a Labor Organization

a.Orders specifying membership or non-membership in a labor organization as a condition of being hired may be in violation of law if the employer is subject to the Labor-Management Relations Act of 1947 (Taft-Hartley Act). See also 29 USC 158(a).

b.However, if the employer requires an employee to join a labor organization on or after the 30th day of employment, and this requirement is pursuant to the employer's agreement with the labor organization, the order would not be in violation of the Act. In the case of the building and construction industries, the requirement to join a labor organization may be on or after the seventh (7th) day of employment. See 29 USC 158(a)(3).

10.Temporary Agencies

a.In general, job orders received from a temporary agency should be handled in the same manner as those from any other employer. However, One-Stop centers should be alert to whether job orders from these organizations have current and valid job openings and are not for the purpose of building lists of applicants for future openings.

b.One-Stop centers should also make certain that a job order from a temporary agency does not duplicate an order listed by an employer that the agency may be representing. To accomplish this, One-Stop centers should obtain the name of the employer being represented whenever possible and compare any listings from that employer with those received from the representative. Duplicates should be eliminated. The determination of which duplicate orders should be kept or deleted is the responsibility of the local One-Stop center.

11.Casual Labor

One-Stop centers should be careful to verify Workers' Compensation coverage on casual labor openings for other than domestic workers.

12.Substandard Job Orders

a.A job order should be considered substandard when an employer is offering wages, hours, or working conditions that are below the standard in a labor market for a particular type of work.

b.One-Stop centers should be aware of local labor market information such as average wage by occupation in order to establish local standards and policies regarding what job orders are to be considered substandard.

c.Should a job order be considered substandard, the One-Stop center should provide the employer with appropriate labor market information and offer him or her opportunity to modify the job order. If the employer agrees to an appropriate modification, the order should be accepted. If not, the One-Stop center should inform the employer that the position should be posted using the SCOTI Bulletin Board function.

B.Refusing, Discontinuing, or Limiting Services to an Employer

1.One-Stop centers may refuse or discontinue services to an employer if the employer or his or her job orders meet any of the conditions for refusal specified in Part IV(A) of this transmittal letter, or if the employer refuses to cooperate with the One-Stop center's requests for job order verification. One-Stop centers should set a local standard for terminating or refusing services based on lack of cooperation from the employer.

2.One-Stop centers should set a local standard for limiting services to an employer. These standards should include the circumstances under which the employer's openings should be posted on the SCOTI Bulletin Board rather than entered into SCOTI as a job order, and should define when multiple openings from an employer will be listed on a single job order. One-Stop centers are encouraged to coordinate standards for limiting services to an employer with other One-Stop centers sharing the same labor market area.

C.Quality Standards for Job Orders

1.On an annual basis the ODJFS Office of Research Assessment and Accountability (ORAA) may review a sample of job orders as part of its compliance monitoring of Workforce Investment Areas. Each job order selected will be expected to meet the following minimum standards:

  • It is legal and allowable under the law, regulations or policies governing the Wagner-Peyser program.
  • It has complete and accurate data including location of the employer, how to contact the employer, O-Net code, hours, and duration of the job.
  • It contains sufficient information for job matching including job title, required skills, secondary skills, pay information, and a description of duties.
  • It is "Internet Ready" (i.e. the most important elements of the job description can be viewed and understood by the job seeker, and no extraneous or confidential information is going out over the Internet).
  • It contains documentation of the veterans file search required on all job orders except filled-when-written orders and multi-opening job orders (the file search should include at a minimum the date of the file search; the local office and agent ID of the person doing the file search; the number of veterans selected; and the number of veterans contacted).
  • It contains documentation of regular follow-up contacts with the employer including referral verification contacts. (The timing of follow-up contacts should be determined by local One-Stop center policy and the needs of individual employers.)
  • It contains timely results of referrals. (Local One-Stop centers should determine a maximum length of time for verifying results of referrals with employers, before utilizing wage data records.)

2.One-Stop centers are responsible for setting local standards for the quality of job orders and assuring that these standards are met. The Ohio Department of Job and Family Services' minimum standards should be incorporated in the local standards. In addition, the One-Stop centers should determine procedures for internal monitoring of job order quality.

D.Establishment of Local Policies

1.One-Stop centers are responsible for developing written policies and procedures for accepting or refusing job orders, discontinuing or refusing services to employers, limiting services provided to employers, and assuring quality control of job orders.

2.These policies and procedures must incorporate the general guidance of this transmittal letter and provide additional detail as needed or desired to assist staff in properly implementing the employer services elements of the Wagner-Peyser labor exchange program.

3.The ORAA monitoring staff will request a copy of these policies and procedures as a part of its annual compliance monitoring of the Workforce Investment Areas.

V.Technical Assistance

For additional information, you may send your questions to the Bureau of Workforce Services: wiaqna@odjfs.state.oh.us.

VI.References

Section 7(a)(2) of the Wagner-Peyser Act, as amended by the Workforce Investment Act of 1998, Public Law 105-220, dated August 7, 1998

WIA Final Rules, 20 CFR, Chapter V, Parts 651.10, 652.3, 652.9, 653.500

29 CFR Part 1608

41 CFR Parts 60-250, 741

Ohio Administrative Code Rule 4141-3-05

29 USC 152(9),158(a)(3); 42 USC 2000

Rescissions: None