Suitable employment test before TAA training approval

CLASSIFICATION
   EMPLOYMENT AND TRAINING ADMINISTRATION                Office of Trade Adjustment Assistance
               ADVISORY SYSTEM                           CORRESPONDENCE SYMBOL
          U.S. DEPARTMENT OF LABOR                       OTAA
             Washington, D.C. 20210                      DATE
                                                         September 24, 2020

ADVISORY:       TRAINING AND EMPLOYMENT GUIDANCE LETTER NO. 3-20

TO:             STATE WORKFORCE AGENCIES
                STATE WORKFORCE LIAISONS
                AFFILIATE AMERICAN JOB CENTER MANAGERS
                COMPREHENSIVE AMERICAN JOB CENTER MANAGERS
                STATE WORKFORCE ADMINISTRATORS
                STATE AND LOCAL WORKFORCE BOARD CHAIRS AND DIRECTORS
                STATE LABOR COMMISSIONERS
                STATE UI DIRECTORS
                RAPID RESPONSE COORDINATORS
                TRADE ADJUSTMENT ASSISTANCE LEADS

FROM:           JOHN PALLASCH
                Assistant Secretary

SUBJECT:        Determining the Availability of Suitable Employment Under the Trade
                Adjustment Assistance (TAA) Program’s Final Rule to Return Trade-Affected
                Workers to Employment as Quickly as Possible

1. Purpose. To provide states guidance on determining the availability of suitable employment
   prior to the approval of training under the TAA Program’s Final Rule. This determination
   will assist trade-affected workers’ reemployment as soon as possible following a separation.

2. Action Requested. States are required to implement the guidance set forth herein and must
   continue to administer the TAA Program in accordance with applicable regulations and
   administrative guidance. States must inform all appropriate staff of the contents of this
   guidance.

3. Summary and Background.

   a. Summary – The Department published a Final Rule implementing the Trade Adjustment
      Assistance Reauthorization Act of 2015 on August 21, 2020 (85 FR 51896). The Final
      Rule is codified at 20 CFR Part 618. Section 236 of the Trade Act of 1974, as amended,
      establishes six criteria that trade-affected workers must meet prior to the approval of
      training under the TAA Program. These criteria are found in regulations at 20 CFR
      618.610. Criterion 1, at 20 CFR 618.610(a)(1), requires a finding that, “there is no
      suitable employment available for a trade-affected worker in either the commuting area
      or another area outside the commuting area to which the worker intends to relocate, and
      there is no reasonable prospect of such suitable employment becoming available for the

 RESCISSIONS                                             EXPIRATION DATE
 None                                                    Continuing

      worker in the foreseeable future.” Suitable employment, as defined at 20 CFR 618.110,
      means, “work of a substantially equal or higher skill level than the worker’s past
      adversely affected employment, and wages for such work that are not less than 80 percent
      of the worker’s average weekly wage. Part-time, temporary, short-term, or threatened
      employment is not suitable employment.” In order to determine whether suitable
      employment is available, the state must conduct an assessment of the trade-affected
      worker’s knowledge, skills, and abilities as described in Subpart C of 20 CFR Part 618.

      A state will also need updated and accurate information of demand within the local labor
      market in order to make a determination.

   b. Background – Historically, under the TAA Program, approximately half of all
      participants enroll in training. As shown in the Fiscal Year (FY) 2019 TAA Annual
      Report, 25 percent of participants did not complete TAA approved training, and
      participants who did not enroll in any training had employment and earnings outcomes
      higher than those who completed training but did not receive a credential, but lower than
      those who completed training and earned a credential. The wage replacement rate for
      those who did not enroll in training and those who completed training that leads to a
      credential, were nearly identical (89.6 percent and 89.9 percent, respectively). This
      strongly suggests that states have been making inappropriate determinations related to
      whether there is suitable employment available to trade-affected workers. These
      determinations cause trade-affected workers to undergo training, sometimes months or
      longer in duration, for a de minimis increase in wage replacement. This guidance is
      being issued to ensure that states make more informed decisions about the prospects for
      suitable employment. This requires the case management staff to look deeper into labor
      market information (LMI), job posting, and other data to determine the best path forward
      for the customer. TAA and other case managers must ask if there is, or will be, suitable
      employment in the near future. They must also determine if there is appropriate short-
      term training which can leveraged to develop competency and get the individual back to
      work.

4. Application.

   a. Assessments – We strongly encourage the TAA Program staff to coordinate with other
      local workforce partners such as the Workforce Innovation Opportunity Act (WIOA),
      Wagner-Peyser, and Vocational Rehabilitation to agree upon a uniform assessment
      process for all customers accessing an American Job Center, whether in-person or
      remotely. This coordination will streamline the process for the customers and allow
      multiple programs to provide seamless services to the trade-affected worker. Various
      types of assessments can be used to determine a trade-affected worker’s knowledge,
      skills, and abilities. Depending on the trade-affected worker, an initial assessment,
      described under 20 CFR 618.335, may be sufficient to determine the availability of
      suitable employment and whether training is appropriate. Other trade-affected workers
      will require comprehensive and specialized assessments, as described at 20 CFR 618.345.
      Most trade-affected workers will not require training to return to suitable employment.

        Instead, these workers may benefit from rapid deployment of employment and case
        management services allowable under Subpart C of 20 CFR Part 618.

    b. Employment and Case Management Services – States are instructed to make employment
       and case management services under sec. 235 of the Trade Act, as amended, available to
       trade-affected workers. As with the assessments in 4.a. above, TAA Program staff
       should work with other workforce partners to conduct and track case management
       services in a single, unified case management system wherever possible. Using a system-
       wide case management system will provide a citizen-centered approach that will ensure
       the partners track all services being provided to the trade-affected worker and allow for
       uninterrupted services. These services include assessments, pre-vocational training,
       individual and group career counseling, and other services described in Subpart C of 20
       CFR Part 618, such as workshops on: networking, interviewing, resume writing, and
       computer literacy. For many trade-affected workers, the barrier to reemployment is not
       in their occupational skill set but with a lack of knowledge of current technology1.
       Computer and technology literacy, or many other skill deficiencies, can be addressed and
       overcome through adult education partners as a precursor to reemployment or training.
       Many trade-affected workers return to employment after a short, intensive provision of
       employment and case management services, without a need for additional training.
       Rapid reemployment into suitable employment is always the preferred approach as this is
       the best outcome for the trade-affected worker and allows TAA and other workforce staff
       to focus limited resources on workers with more significant barriers to employment.

    c. Workforce Information – TAA approved training must meet the six criteria established at
       20 CFR 618.610(a)(1) through (6). The first of these criteria is that there is no suitable
       employment available to the trade-affected worker, and there is no reasonable prospect of
       such suitable employment becoming available for the worker in the foreseeable future. In
       addition to any assessments of the trade-affected worker, to determine whether suitable
       employment is available, states must also have updated and accurate workforce
       information readily available on the current and projected occupational demands in the
       worker’s commuting area. This information can be obtained through various methods, as
       described at 20 CFR 618.610(c)(2), by measuring expected job market conditions using
       pertinent labor market data, including but not limited to job order activity, short-term
       projections data, job vacancy surveys, business visitation programs, and local and
       regional strategic plans. This LMI should be documented in the trade-affected worker’s
       case file. The TAA Final Rule goes on to say that the state should also work with the
       local workforce development boards (LWDBs) and their one-stop partners, especially
       business team members, to understand current labor market conditions and opportunities
       for work-based learning. In order to satisfy these criteria, all relevant LMI, job postings,
       and third party job sites (e.g.; Zip Recruiter, Indeed, Jobs.com, etc.) must be reviewed to
       confirm that there is no suitable employment within the commuting area or another area
       outside the commuting area where the trade-affected worker intends to relocate. Only if
       no suitable employment, or the prospect of such suitable employment, is identified

1
 AARP. (2015). “Improving Education and Training for Older Workers.” Retrieved from:
www.aarp.org/content/dam/aarp/ppi/2015/improving-education-training-older-workers-AARP-ppi.pdf.

       through all available resources does the proposed training program satisfy Criterion 1, at
       20 CFR 618.610(a).

   d. Appropriate Training – Additional requirements in meeting the six criteria established at
      20 CFR 618.610(a)(1) through (6) will be helpful in verifying that suitable employment,
      or the prospect of such suitable employment, is met. Criterion 2, at 20 CFR 618.610(b)
      emphasizes that for the trade-affected worker to benefit from appropriate training, the
      training must improve the worker’s chances of obtaining employment than would occur
      without training. The training should also improve the trade-affected worker’s chances
      of either earning higher wages than would otherwise be the case or that the training will
      place the worker on a pathway to do so. Criterion 5, at 20 CFR 618.610(e) adds a new
      requirement directing states to review the trade-affected worker’s initial assessment, and
      the comprehensive and specialized assessment and individual employment plan, if
      available, to determine if the proposed training is appropriate based on the worker’s
      current skills.

       As a required partner in the American Job Center Network, the TAA Program’s efforts to
       gather this information should always be done in cooperation with the state, LWDBs,
       local employers, economic development agencies, and the state’s LMI unit.

5. Inquiries. For further information about the approval of training under the TAA Program,
   states should visit taa.workforcegps.org and contact their appropriate Regional Office.

6. References.
          Chapter 2 of Title II of the Trade Act of 1974, as amended (Pub. L. 93-618)
             (Trade Act) (codified at 19 U.S.C. §§ 2271 et seq.); and
          20 CFR Part 618, 85 FR 51896 (August 21, 2020).

7. Attachment(s). N/A