TAA On-the-Job Training Laws & Regulations
20 Code of Federal Regulations
§ 617.3 Definitions.
(bb) On-the-job training means training provided by an employer to an individual who is employed by the employer.
§ 617.18 Disqualifications.
(c) Disqualification while in OJT. In no case may an individual receive TRA for any week with respect to which the worker is engaged in on-the-job training.
§ 617.21 Reemployment services and allowances.
(f) On-the-job training (OJT). OJT is training, in the public or private sector, and may be provided to an individual who meets the conditions for approval of training, as provided in § 617.22(a), and who has been hired by the employer, while the individual is engaged in productive work which provides knowledge or skills essential to the full and adequate performance of the job.
§ 617.23 Selection of training methods and programs.
(c) Methods of training. Adversely affected workers may be provided either one or a combination of the following methods of training:
(1)Insofar as possible, priority will be given to on-the-job training, which includes related education necessary to acquire skills needed for a position within a particular occupation, in the firm or elsewhere pursuant to §§ 617.24, 617.25, and 617.26, including training for which the firm pays the costs. This ensures that on-the-job training provides the skills necessary for the individual to obtain employment in an occupation rather than a particular job at a specific site; and
§ 617.25 Limitations on training under Subpart C of this part.
The second sentence of amended section 236(a)(1) of the Act provides that an adversely affected worker shall be entitled to have payment of the costs of training approved under the Act paid on the worker's behalf, subject, however, "to the limitations imposed by" section 236. The limitations in section 236 which are implemented in this section concern the restrictions on approval of training which are related directly or indirectly to the conditions on training which are approvable or on the funding of training costs.
(a) On-the-job training. The costs of on-the-job training approved Subpart C of this part for a worker, which are paid from TAA funds, shall be paid in equal monthly installments. Such costs may be paid from TAA funds, and such training may be approved under subpart C of this part, however, only if the State agency determines that:
(1)No currently employed individual is displaced by such eligible worker, including partial displacement such as a reduction in the hours of non-overtime work, wages, or employment benefits;
(2)Such training does not impair existing contracts for services or collective bargaining agreements;
(3)In the case of training which would be inconsistent with the terms of a collective bargaining agreement, written concurrence has been obtained from the concerned labor organization;
(4)No other individual is on layoff from the same or any substantially equivalent job for which such eligible worker is being trained;
(5)The employer has not terminated the employment of any regular employee or otherwise reduced the work force with the intention of filling the vacancy so created by hiring the eligible worker;
(6)The job for which the eligible worker is being trained is not being created in a promotional line that will infringe in any way upon the promotional opportunities of currently employed individuals;
(7)Such training is not for the same occupation from which the worker was separated and with respect to which such worker's group was certified pursuant to section 222 of the Act;
(8)The employer certifies to the State agency that the employer will continue to employ the eligible worker for at least 26 weeks after completing the training if the worker desires to continue such employment and the employer does not have due cause to terminate such employment;
(9)The employer has not received payment under this Subpart C or under any other Federal law for any other on-the-job training provided by such employer which failed to meet the requirements of paragraphs (a)(1) through (a)(6) of this section or such other Federal law; and
(10) The employer has not taken, at any time, any action which violated the terms of any certification described in paragraph (a)(8) of this section made by the employer with respect to any other on-the-job training provided by the employer for which the employer has received a payment under Subpart C of this part (or the prior provisions of Subpart C of this part).
TEGL 11-02 – 2002 Amendments
E. JOB RETRAINING
E.2. Employer-Based Training
Statutory Change: Section 118(a) of the 2002 Act amends Section 236(a)(5)(A) of the 1974 act by changing “on-the-job training” to “employer-based training, including (i) on-the-job training and (ii) customized training.” In addition, Section 118(b) of the 2002 Act amends Section 236(c)(8) of the 1974 Act to read “the employer is provided reimbursement of not more than 50 percent of the wage rate of the participant, for the cost of providing the training and additional supervision related to the training.” (Note: the previous language of Section 236(c)(8), which is replaced, was “the employer certifies to the Secretary that the employer will continue to employ such worker for at least 26 weeks after completion of such training if the worker desires to continue such employment and the employer does not have due cause to terminate such employment.”)
Finally, Section 118(c) of the 2002 Act adds a subsection to the end of Section 236 of the 1974 act as follows:
“(c) For purposes of this section, the term ‘customized training’ means training that is –
(1)designed to meet the special requirements of an employer or group of employers;
(2)conducted with a commitment by the employer or group of employers to employ an individual upon successful completion of the training; and
(3)for which the employer pays for a significant portion (but in no case less than 50 percent) of the cost of such training, as determined by the Secretary.”
Administration: The previous requirement for on-the-job training, that the employer promise to continue to employ a worker in on-the-job training for at least 26 weeks after the completion of the training (provided that the worker wants to continue employment and the employer does not have due cause to terminate the employment) is not applicable to workers covered by certifications issued pursuant to petitions filed on or after November 4, 2002. The definitions of on-the-job and customized training, and the approval criteria for such training, are now very similar to the equivalent definitions and approval criteria for such training under the dislocated worker program of WIA. On-the-job training is job training that occurs at a firm where the trainee is employed by the firm. Customized training is training designed to the specific requirements of a firm or group of firms, but conducted by a separate training vendor. In customized training, the trainee is not employed by the firm or group of firms for which the training is designed. Current TAA regulations published at 20 CFR 617.23(c)(1) require that States give priority, insofar as possible, to on-the-job training when designing a reemployment program for an eligible worker. States shall also give priority, insofar as possible, to customized training for eligible workers. These forms of training ensure that workers obtain job skills which are necessary to obtain employment in a particular occupation.
TEGL 22-08 – 2009 Amendments
D. TRAINING
D.2.3 Incumbent Worker Exclusions
Statutory Change: Section 1830 of the 2009 Amendments amends Section 236(a)of the 2002 Act by adding paragraph (10):
(10) In the case of an adversely affected incumbent worker, the Secretary may notapprove—
(A)on-the-job training under paragraph (5)(A)(i); or
(B)customized training under paragraph (5)(A)(ii), unless such training is for aposition other than the worker’s adversely affected employment.
Administration: Pre-layoff training may not be approved if it consists of orincludes on-the-job training. Moreover, a CSA may not approve customizedtraining, meaning training that is designed to meet the special requirements ofone or more employers, for an adversely affected incumbent worker unless suchtraining is for a position other than the worker’s position in the adverselyaffected employment. CSAs will need to ensure that the training being providedis for a different position than the worker’s current position if the training isbeing provided under agreement with the worker’s current employer. Anincumbent worker may receive pre-separation training for another position withthe worker’s current employer, but only if the position is not similarly threatenedby trade, i.e. the new position is outside of a subdivision with a trade-certifiedworker group.
D.6 On-the-Job Training
Statutory Change: Section 1831 of the 2009 Amendments amends Section236(c)(1) – (4) of the 2002 Act to read:
(1)IN GENERAL.—The Secretary may approve on-the-job training for any adversely affected worker if—
(A)the worker meets the requirements for training to be approved under subsection(a)(1);
(B)the Secretary determines that on-the-job training—
(i)can reasonably be expected to lead to suitable employment with the employeroffering the on-the-job training;
(ii)is compatible with the skills of the worker;
(iii)includes a curriculum through which the worker will gain the knowledge orskills to become proficient in the job for which the worker is being trained; and
(iv)can be measured by benchmarks that indicate that the worker is gaining suchknowledge or skills; and
(C)the State determines that the on-the-job training program meets therequirements of clauses (iii) and (iv) of subparagraph (B).
(2)MONTHLY PAYMENTS.—The Secretary shall pay the costs of on-the-job trainingapproved under paragraph (1) in monthly installments.
(3)CONTRACTS FOR ON-THE-JOB TRAINING.—
(A)IN GENERAL.—The Secretary shall ensure, in entering into a contract with anemployer to provide on-the-job training to a worker under this subsection, that theskill requirements of the job for which the worker is being trained, the academic andoccupational skill level of the worker, and the work experience of the worker are takeninto consideration.
(B)TERM OF CONTRACT.—Training under any such contract shall be limited to theperiod of time required for the worker receiving on-the-job training to becomeproficient in the job for which the worker is being trained, but shall not exceed 104weeks in any case.
(4)EXCLUSION OF CERTAIN EMPLOYERS.—The Secretary shall not enter into acontract for on-the-job training with an employer that exhibits a pattern of failing toprovide workers receiving on-the-job training from the employer with—
(A)continued, long-term employment as regular employees; and
(B)wages, benefits, and working conditions that are equivalent to the wages,benefits, and working conditions provided to regular employees who have worked asimilar period of time and are doing the same type of work as workers receiving on-the-job training from the employer.
Administration: CSAs may approve “on-the-job” training (OJT) for a workermeeting the approval criteria of Section 236(a)(1), implemented at 20 CFR 617.22(a), and the OJT criteria of Section 236(c)(1)(B).
Criterion (1) (Section 236(c)(1)(B)(i)) requires that the OJT can reasonably lead toemployment with the OJT employer. The 2002 Act removed this requirementcompletely, but the 2009 Act reinstates it. However, approval should beconditioned on whether the OJT can reasonably lead to employment with theemployer. Criterion (2) (Section 236(c)(1)(B)(ii)) requires that the OJT iscompatible with the worker’s skills. Criterion (3) (Section 236(c)(1)(B)(iii))requires the OJT to allow the worker to become proficient in the job for which theworker is being trained. Criterion (4) (Section 236(c)(1)(B)(iv)) requires the Stateto be able to identify benchmarks or systematically evaluate whether the workeris gaining knowledge or skills.
Under the 2009 Act, OJT is simply one of several training options for workers.The 2009 Amendments repealed the requirement at Section 236(a)(1) that“[i]nsofar as possible,” training be provided on the job.
Further, while the 2002 Act required payment for OJT to be made in equalmonthly installments, the 2009 Act requires only that payment be made on amonthly basis. The 2009 Act expressly limits OJT contracts to no more than 104weeks. Lastly, the 2009 Act also provides that employers that exhibit a pattern offailing to provide workers with continued long-term employment, and adequatewages, benefits and working conditions as regular employees are excluded fromOJT contracts.
D.7. UI and TAA Benefits while in Training
Statutory Change: Section 1832 of the 2009 Amendments amends Section 236(d)of the 2002 Act to read:
(d) ELIGIBILITY.—An adversely affected worker may not be determined to be ineligibleor disqualified for unemployment insurance or program benefits under this subchapter—
(1) because the worker—
(A)is enrolled in training approved under subsection (a);
(B)left work—
(i) that was not suitable employment in order to enroll in such training; or
(ii) that the worker engaged in on a temporary basis during a break in suchtraining or a delay in the commencement of such training; or
(C) left on-the-job training not later than 30 days after commencing such trainingbecause the training did not meet the requirements of subsection (c)(1)(B); or
(2)because of the application to any such week in training of the provisions of Statelaw or Federal unemployment insurance law relating to availability for work, activesearch for work, or refusal to accept work.
Administration: The 2009 amendments codify the current regulations at 20 CFR617.18 regarding disqualification of trainees from UI or TRA. In addition, the2009 Amendments add two new circumstances under which a CSA may notdeny UC – because the worker left work that the worker engaged in on atemporary basis during a break in training or a delay in the commencement ofthat training, and that the worker left OJT not later than 30 days aftercommencing such training because the training did not meet the requirements ofSection 236(c)(1)(B). That section provides for the approval of OJT where theCSA determines that it can reasonably be expected to lead to suitableemployment with the employer offering the OJT; is compatible with the skills ofthe worker; includes a curriculum through which the worker will gain theknowledge or skills to become proficient in the job for which the worker is beingtrained; and can be measured by benchmarks that indicate that the worker isgaining that knowledge or skills.
Attachment B (of TEGL 22-08) is an unofficial version of Chapter 2 and sections of Chapter 5 ofTitle II of The Trade Act of 1974, Public Law 93-618, as amended. This documentwas prepared by the U.S. Department of Labor to include amendments to theTrade Act made by the Trade and Globalization Adjustment Assistance Act of2009 (Division B, Title I, Subtitle I of the American Recovery and ReinvestmentAct of 2009, Public Law 111-5).
SEC. 236. TRAINING. [19 U.S.C. § 2296]
(c) On-the-job training requirements
(1)In general
The Secretary may approve on-the-job training for any adversely affectedworker if—
(A)the worker meets the requirements for training to be approved undersubsection (a)(1);
(B)the Secretary determines that on-the-job training—
(i)can reasonably be expected to lead to suitable employment with theemployer offering the on-the-job training;
(ii)is compatible with the skills of the worker;
(iii)includes a curriculum through which the worker will gain theknowledge or skills to become proficient in the job for which the worker isbeing trained; and
(iv)can be measured by benchmarks that indicate that the worker is gainingsuch knowledge or skills; and
(C)the State determines that the on-the-job training program meets therequirements of clauses (iii) and (iv) of subparagraph (B).
(2)Monthly payments
The Secretary shall pay the costs of on-the-job training approved underparagraph (1) in monthly installments.
(3)Contracts for on-the-job training
(A)In general
The Secretary shall ensure, in entering into a contract with an employer toprovide on-the-job training to a worker under this subsection, that the skillrequirements of the job for which the worker is being trained, the academicand occupational skill level of the worker, and the work experience of theworker are taken into consideration.
(B)Term of contract
Training under any such contract shall be limited to the period of timerequired for the worker receiving on-the-job training to become proficient inthe job for which the worker is being trained, but may not exceed 104 weeksin any case.
(4)Exclusion of certain employers
The Secretary shall not enter into a contract for on-the-job training with anemployer that exhibits a pattern of failing to provide workers receiving on-the-jobtraining from the employer with—
(A)continued, long-term employment as regular employees; and
(B)wages, benefits, and working conditions that are equivalent to the wages,worked a similar period of time and are doing the same type of work asworkers receiving on-the-job training from the employer.
(5)Labor standards
The Secretary may pay the costs of on-the-job training, notwithstanding anyother provision of this section, only if—
(A)no currently employed worker is displaced by such adversely affectedworker (including partial displacement such as a reduction in the hours ofnon-overtime work, wages, or employment benefits),
(B)such training does not impair existing contracts for services or collectivebargaining agreements,
(C)in the case of training which would be inconsistent with the terms of acollective bargaining agreement, the written concurrence of the labororganization concerned has been obtained,
(D)no other individual is on layoff from the same, or any substantiallyequivalent, job for which such adversely affected worker is being trained,
(E)the employer has not terminated the employment of any regular employeeor otherwise reduced the workforce of the employer with the intention offilling the vacancy so created by hiring such adversely affected worker,
(F)the job for which such adversely affected worker is being trained is notbeing created in a promotional line that will infringe in any way upon thepromotional opportunities of currently employed individuals,
(G)such training is not for the same occupation from which the worker wasseparated and with respect to which such worker’s group was certifiedpursuant to section 222,
(H)the employer is provided reimbursement of not more than 50 percent of thewage rate of the participant, for the cost of providing the training andadditional supervision related to the training,
(I)the employer has not received payment under subsection (a)(1) of thissection with respect to any other on-the-job training provided by suchemployer which failed to meet the requirements of subparagraphs (A), (B), (C),(D), (E), and (F), and