Career Counseling, Information and Referral for Individuals Making Subminimum Wage

Discussion Paper

Background

Section 458 of the Workforce Innovation and Opportunity Act (WIOA) amended Title V of the Rehabilitation Act of 1973 (Rehab Act) by adding a new §511 that limited the ability of employers to pay a subminimum wage to workers with disabilities. Specifically, §511, required employers holding special wage certificates under the Fair Labor Standards Act (FLSA) to comply with certain requirements, effective two years after the enactment of WIOA or by July 22, 2016 . WIOA mandated that these requirements be satisfied before employers hired youth with disabilities at subminimum wages or continued to employ individuals with disabilities of any age at the subminimum wage level. To be employed at subminimum wage, individuals with disabilities referred to Texas Workforce Solutions–Vocational Rehabilitation Services (TWS-VRS) by such 14(c) employers, regardless of age, must be provided with career counseling, and information and referral services designed to promote opportunities for competitive integrated employment. Since the enactment of WIOA, TWS-VRS staff have been proactive in outreach efforts to 14(c) employers statewide to explain the new requirements, partnering with them to improve and expand employment opportunities for individuals with disabilities, including work-based learning experiences such as internships. To ensure that VR staff are fully informed about the new §511 requirements and are prepared to meet the needs of these employers and their employees, VR manuals must be updated to include clear guidance, consistent with WIOA.

Issue

Neither manual [Blind Services Division’s Vocational Rehabilitation (VR) Manual and Rehabilitation Services Division’s Rehabilitation Policy Manual (RPM)]for the respective divisions within VR currently include policy or guidance to Vocational Rehabilitation (VR) counselors or staff about compliance with WIOA §511 and final regulations. Initial guidance and resources for implementation of the new requirements were provided to VR staff in fall 2016 and piloted with several 14(c) employers and their employees in November 2016. The resources, including process documents and desk aids, have been refined in the subsequent months based on clarification from federal oversight agencies and ongoing communication with VR field staff. The next step is updating each division’s policy manual.

VR staff is creating a single program manual, the Vocational Rehabilitation Services Manual (VRSM), which will be effective October 1, 2017 when the two divisions are combined; however, changes are necessary to the current policy manual for each division in order to ensure timely implementation of WIOA requirements. Following approval, the policies and procedures for WIOA §511 will also be included in the VRSM.

Decision Points

Staff recommends adoption of the following policy to provide policy and procedural guidance to VR staff by defining the three groupings of individuals outlined in the law and regulations who will require career counseling, information and referral services, and detailing the specific requirements applicable to each group:

1. Group One—-All individuals earning subminimum wage or piece rate hired by a 14c certificate holder before July 22, 2016, regardless of age. Employers must ensure that individuals in Group One are provided with career counseling services, which include information and referral to other employment assistance available in the individual’s community, no later than July 22, 2017, and annually thereafter.

2. Group Two-—Any individual who has reached their 25th birthdate hired by a 14c certificate holder on or after July 22, 2016, and earning subminimum wage or piece rate. Employers must ensure that individuals in Group Two are provided with career counseling services in the first six months of their employment and annually thereafter.

3. Group Three

  • Group Three is made up of two separate age ranges, individuals not older than 24 and individuals not older than 21 years of age.
  • The following requirements apply to all individuals in Group Three not older than 24 (including those not older than 21 years of age) who want to take a position at subminimum wage or piece rate on or after July 22, 2016. Please note that these individuals cannot start earning subminimum wage or piece rate until all requirements are satisfied:

Group Three individuals must make application and go through the eligibility determination process.

Individuals determined ineligible:

  • will be sent a denial letter, and VR staff will document the method of delivery in a separate Case Note in ReHabWorks, entitled Section 511.
  • will receive career counseling, and VR staff will complete all Section 511/Career Counseling documents;
  • after these activities have been completed the individual can earn subminimum wage.

Individuals determined eligible must have:

  • an approved Individualized Plan for Employment (IPE);
  • been working toward the employment outcome in the IPE, for a reasonable period (up to 24 months) and with appropriate supports, without success (if the case is going to be closed as unsuccessful);
  • a closed VR service record;
  • receipt of career counseling, information, and referral services; and
  • after these activities have been completed the individual can earn subminimum wage.

Group Three individuals must receive career counseling services annually as long as they continue to earn subminimum wage.

Individuals in Group Three not older than 21 years of age must meet one of the following additional requirements before accepting a position at subminimum wage:

  • Provide proof of Transition Services through the school system (Workforce Solutions Office VR staff is responsible for collecting the proof of Transition Services from the school system and providing it to the customer); or
  • Provide proof of Pre-Employment Transition Services (Pre-ETS).

Procedures

Procedures will be added to the RPM and VRM to implement the adopted policy for meeting WIOA §511 requirements, including:

  • All field units will have an assigned point of contact for the 14c facility in their catchment area
  • Pre-meeting preparation
  • Career counseling sessions

Input from the Rehabilitation Council of Texas

The Rehabilitation Council of Texas (RCT) was given the opportunity to review and provide feedback on Subminimum Wage Recipients. On March 27, 2017, RCT provided a recommendation to include the citation that the policy comes from, which reference to §511 of the Rehab Act will be added to the manuals.

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Career Counseling for Individuals Making Subminimum_Wage_Discussion_Paper_5-26-17