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2009–2010 WIA waiver policy and decisions
Summary ETA explained WIA waiver authority, decisions and conditions for program years 2009 and 2010, including youth employment and reporting flexibility. It gave states procedures for requests and monitoring and attached a waiver-decision table. It rescinded TEGL 6-99 and TEGL 8-08; ETA now lists it Canceled.
Document
Federal guidance
Agency
U.S. Department of Labor, Employment and Training Administration (ETA)
Document number
TEGL No. 26-09
Date issued
May 12, 2010
Status
Withdrawn
ETA lists this advisory Canceled as of 2026-10-24. Its signed letter expressly rescinds TEGL 6-99 and TEGL 8-08 and prints Expiration Date: Continuing.
Status last verified October 24, 2026
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About this page: The full text below is the official document from U.S. Department of Labor, Employment and Training Administration (ETA). Ezel adds the plain-English summary and tracks the document's status. The official source linked on this page is authoritative for any reliance.
Accessible letter PDF: https://www.dol.gov/sites/dolgov/files/ETA/advisories/TEGL/2010/TEGL26-09acc.pdf
CLASSIFICATION
WIA Waivers
EMPLOYMENT AND TRAINING ADMINISTRATION
ADVISORY SYSTEM CORRESPONDENCE SYMBOL
OWI-DWSS
U.S. DEPARTMENT OF LABOR
Washington, D.C. 20210 DATE
May 12, 2010
ADVISORY: TRAINING AND EMPLOYMENT GUIDANCE LETTER NO. 26-09
TO: STATE WORKFORCE AGENCIES
STATE WORKFORCE ADMINISTRATORS
STATE WORKFORCE LIAISONS
STATE AND LOCAL WORKFORCE BOARD CHAIRS AND
DIRECTORS
STATE LABOR COMMISSIONERS
FROM: JANE OATES /s/
Assistant Secretary
SUBJECT: Workforce Investment Act (WIA) Waiver Policy and Waiver Decisions for
PY 2009 and 2010.
1. Purpose.
• To explain current waiver policy and clarify conditions that ETA placed on certain
waivers.
• To provide guidance on the elements of a waiver request and the submission and
approval process.
• To provide information on waiver accountability, including monitoring.
.
2. References.
• The Workforce Investment Act of 1998; WIA Section 189(i)(4);
• WIA Section 192;
• WIA regulations at 20 CFR 661.420-430;
• Training and Employment Guidance Letter (TEGL) No. 14-08, “Guidance for
Implementation of the Workforce Investment Act and Wagner-Peyser Act Funding in the
American Recovery and Reinvestment Act of 2009 and State Planning Requirements for
Program Year 2009”;
• TEGL No. 21-09, “Instructions for Submitting Workforce Investment Act and Wagner-
Peyser Act State Plans and Waiver Requests for Program Year 2010”;
• TEGL No. 17-09, “Quarterly Submission of Workforce Investment Act Standardized
Record Data (WIASRD)”;
• TEGL No. 14-00, Change 3, “Workforce Investment Act (WIA) Annual Report
Narrative”;
• Training and Employment Notice (TEN) No. 24-09, “Joint Letter from the Employment
and Training Administration (ETA) and the U.S. Department of Health and Human
Services Administration for Children and Families (ACF) regarding youth subsidized
RESCISSIONS EXPIRATION DATE
TEGL 6-99 and 8-08. Continuing
employment opportunities under the Temporary Assistance for Needy Families (TANF)
Emergency Contingency Fund”; and
• WIA Strategic State Plan Guidance and Instructions (OMB No. 1205-0398).
3. Background. In its guidance TEGL No.14-08, Guidance for Implementation of the
Workforce Investment Act and Wagner-Peyser Act Funding in the American Recovery and
Reinvestment Act of 2009 and State Planning Requirements for Program Year 2009, the
Employment and Training Administration (ETA) required states to submit modified State
Plans for Title I of WIA and the Wagner-Peyser Act to address how states planned to utilize
funding under the American Recovery and Reinvestment Act (Recovery Act) to meet the
increased demand for workforce development services in Program Year (PY) 2009. The
TEGL also required states to submit full waiver requests for both regular formula and
Recovery Act funds for any waivers sought for PY 2009. ETA received over 450 waiver
requests as part of this requirement. ETA carefully reviewed all waivers to assess whether
the waivers supported the strategic goals of the requesting state, whether states had in place
policies to support the waivers’ implementation, the degree to which waivers supported the
state’s economic recovery, and whether programmatic outcomes were achieved as a result of
the waiver. This policy review resulted in changes to ETA’s position on granting certain
waivers, adjustments to the approval conditions of other waivers, and no changes for other
waivers. The results of these decisions are provided in Section 6 of this TEGL.
TEGL No. 21-09 provides states the opportunity to extend their waivers and WIA/Wagner-
Peyser Act State Plans for an additional year. This TEGL provides guidance and suggestions
on submitting waiver requests throughout PY 2010, and describes the steps ETA is taking to
ensure that states’ waiver implementation is within the bounds of the waiver approval letters
and within WIA statute and regulations.
4. Waiver Authority. Section 189(i)(4) of WIA authorizes the Secretary to waive certain
statutory and regulatory provisions of the WIA and of the Wagner-Peyser Act (W-P). This
general statutory and regulatory waiver authority provides increased flexibility to states and
local areas, and it provides an opportunity for states and local areas to organize services in
ways that best meet the needs of the state, regional, and local economies and overcome legal
or regulatory barriers that may impede innovation. Waivers provide flexibility in exchange
for improved programmatic outcomes and must be consistent with WIA’s key reform
principles.
Please note that WIA prohibits waivers for certain WIA and Wagner-Peyser Act provisions
including wage and labor standards, allocation of funds to local areas, eligibility of
participants and providers, the establishment and functions of local areas and local workforce
investment boards, and procedures for review and approval of plans, as described at WIA
Section 189(i)(4)(A).
WIA Section 192 provides the Department of Labor the authority to approve Work-Flex
plans. With an approved Work-Flex plan, Governors are granted the authority to approve
requests for waivers of certain statutory and regulatory provisions of the WIA and the
Wagner-Peyser Act submitted by their local areas and certain provisions of the Older
Americans Act applicable to state agencies that administer the Senior Community Service
Employment Program (SCSEP). The Secretary may grant Work-Flex authority for a period
of not more than five years. Waiver authority under Work-Flex is subject to the same
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prohibitions as those identified in the previous paragraph, except for provider eligibility.
Waiving provider eligibility is allowed under Work-Flex.
5. Waiver Policy Emphases. Waiver approval decisions made in PY 2009 place significant
focus on the economic climate and its impact on workers, and focus on utilizing the
resources available to the workforce investment system to maximize training and
employment outcomes of the workforce, particularly the unemployed. Waiver policy during
the nation’s challenging economic climate maintains flexibility while providing greater
attention to ensuring that WIA services are directed to appropriate populations. Furthermore,
waiver policy requires a judicious use of waivers; state requests and utilization of waivers
must be directly linked to the state’s workforce strategy, and the waivers should be one of a
number of tactics to facilitate the state’s implementation of its strategy. ETA will only grant
waivers where the state demonstrates a connection to a given workforce strategy.
ETA waiver approval decisions emphasize the following tenets: 1) The workforce system
should prioritize serving the unemployed and populations targeted by WIA; 2) State and
local area interests should be balanced; 3) Youth funds must be preserved for youth and
reach the hardest-to-serve; and 4) States and local areas must be accountable for
employment-related outcomes, and long-standing performance reporting mechanisms should
be maintained. These tenets are more fully described below.
A. The workforce system should prioritize serving the unemployed and populations
targeted by WIA. Many of the waiver requests for PY 2009 sought to expand the permissible
uses of WIA formula and Recovery Act formula funds. Waiver policy prior to PY 2009
provided wide latitude to permit local areas to use local Adult, Dislocated Worker, and
Youth funding streams to conduct allowable statewide activities, including incumbent
worker training (IWT), and also permitted states to use Rapid Response funds for such
activities. Current waiver policy for these funds still provides some flexibility, but it is more
limited in order to preserve their use for the populations targeted by WIA, who are currently
seeking traditional workforce services in record numbers. Serving unemployed workers and
other low-skilled, low-income populations must be the workforce system’s focus, and
resources should not be diverted to other uses at the expense of those most in need. At the
same time, some flexibility in the use of the formula and Rapid Response funds is warranted,
when the funds can be used to avert worker dislocations. IWT is an effective approach for
providing workers with needed skills to be more effective in the workplace and to improve
employers’ ability to adapt to economic changes and changing skill needs in the marketplace.
As such, ETA will approve waivers to allow local areas to use a certain portion of local
Adult and Dislocated Worker funds to conduct IWT as part of a layoff aversion strategy, and
also permit states to use Rapid Response funds for such activities. See Attachment A for the
specific policy decision.
ETA will approve waivers that effectively focus resources at proven training and
employment strategies for unemployed and underserved populations. For instance, to expand
the use of on-the-job training (OJT) and increase participation of small businesses, ETA
approved a waiver of the 50 percent limit on reimbursement to employers for OJT to permit
local areas to use a sliding scale to increase the reimbursement based on the size of the
business. In its PY 2009 approval of this waiver, ETA expanded the sliding scale to include
businesses with up to 250 employees.
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B. State and local area interests should be balanced. A key principle of WIA is a strong
role for local workforce investment boards and local business leadership, and WIA
regulations require that waivers be approved consistent with this key principle (20 CFR
661.400(b)(5)). In implementing this principle, decision-making devolves to local workforce
investment areas and local areas have the authority to implement strategies and expend
resources that respond to the needs of their workforce and business customers. At the same
time, both states and local areas are provided flexibility to implement innovative systems
with significant authority reserved for the Governor and chief elected officials. Maintaining
a balance between state and local area interests is crucial to an effectively functioning
workforce system. The complementary roles should not be disrupted in a way that may
result in an inequitable distribution of resources across areas or that truncate the decision-
making authority of either the state or local areas.
For all waiver requests, ETA will consider how the waiver may affect the balance of
statutorily-prescribed roles within a state. Waivers that disrupt this balance will not be
approved. For example, prior to PY 2009 ETA approved a waiver that permitted states to
recapture unobligated and unexpended funds from local areas earlier and more often than the
statute allowed, and to redistribute the funds as the state deemed appropriate. This waiver
was not approved for any state in PY 2009 in order to preserve local area authority to
allocate resources and to give local areas sufficient time to expend their funds.
C. Youth funds must be preserved for youth and reach the hardest-to-serve. Youth are
among the most vulnerable populations during the nation’s economic downturn, with an
employment rate of just 51.4 percent as of July 2009, according to the Bureau of Labor
Statistics (BLS). This is the lowest July rate ever recorded for youth since data tracking
began in 1948. Due to the employment challenges facing youth, waivers approved for PY
2009 focus on improving and expanding service delivery to youth to provide them with
improved access to training and other services that connect them to work and educational
experiences that lead to promising career paths. As an example, ETA is offering flexibility
to facilitate the workforce system working with the TANF system on summer youth
employment activities in order to facilitate serving the hardest-to-serve youth (see Section 8B
for further details). Conversely, ETA did not, and will not, approve waivers that diminish
the ability of the system to deliver vital services to youth in need or that divert resources
away from youth. Requests to forgo certain required youth program elements or that seek to
use Youth formula funds for populations other than youth are contrary to ETA’s focus in this
area.
D. States and local areas must be accountable, and long-standing performance reporting
mechanisms should be maintained. For waivers related to performance accountability,
waiver decisions for PY 2009 and going forward seek to maintain long-standing waivers
regarding operational and management processes that, if denied, would disrupt the continued
effective functioning of the system in a time of exceptionally high demand for workforce
services. This includes a waiver to permit implementation of, and reporting only for, the
common performance measures in place of the statutory WIA measures. Under this waiver,
states are expected to report on certificates and credentials attained, as well as conduct
customer satisfaction surveys. ETA does not, however, support waivers that would exempt
states and local areas from accountability. Accountability is a key WIA principle and,
therefore, will not be waived. Evaluating the outcomes of Federal investments is important
for ensuring wise use of funds and assessing the effectiveness of WIA/W-P programs. As
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such, waivers that seek to exempt certain populations from performance measures or exempt
local areas from data collection and reporting will not be approved. States that serve larger
numbers of certain populations that they believe might negatively impact their performance
may seek to renegotiate performance targets with ETA based on such impacts.
6. Waiver Decisions for PY 2009. Attachment A summarizes PY 2009 waiver requests and
the corresponding current policy decisions. ETA will consider all complete waiver requests,
as described in Section 8, and expects states to provide supporting justifications. States may
also request waivers that are not listed in Attachment A.
7. Clarifications for Certain Waiver Conditions. Many waivers for PY 2009 were approved
with conditions which were conveyed in each state’s waiver disposition letter. ETA has
received questions about certain conditions of the waivers. Clarifications are provided
below. These conditions will also apply to PY 2010 waivers.
A. Use of Local Funds for Incumbent Worker Training
This waiver allows the use of a portion of local WIA funds to permit local areas to conduct
allowable statewide activities as defined under WIA section 134(a)(3), specifically IWT.
Under the waiver and depending on what the state requested and was approved to do, states
may permit their local areas to use up to 20 percent of Dislocated Worker funds, or up to 10
percent of Adult funds, or up to 10 percent of Adult and 10 percent of Dislocated Worker
funds, to train incumbent workers as part of a documented layoff aversion strategy. Use of
Adult WIA funds for this purpose must be restricted to serving low-income adults. All
training delivered under this waiver is restricted to skill attainment activities. Local areas
must continue to conduct the required local employment and training activities identified at
WIA section 134(d), and states are required to report performance information for any
individual served under this waiver in the Workforce Investment Act Standardized Record
Data (WIASRD) submission and include these individuals in program performance
outcomes.
i.) Layoff Aversion Strategy: States must ensure that local areas implementing this
waiver use IWT to avert layoffs. State policies related to this waiver should include a
description of how the potential for layoff aversion will be determined, such as:
• the likelihood of future layoffs without the training;
• the business circumstances surrounding the probable layoff, and how the training
will prevent the layoff or reduce the magnitude of a large layoff; and/or
• the specific skills to be provided to the workers that will help avert the layoff.
States must also establish, or require local areas to establish, criteria for determining the
appropriate provision of IWT under the waiver, such as:
• how employers will be identified, i.e. knowledge gained by contact with the local
workforce investment boards (WIBs) or One Stop Business Services
representatives, Chambers of Commerce or Economic Development Councils,
local media, or another indicator of a company that is at risk of layoff, particularly
due to lack of a company's ability to compete because of its employee skill-base;
• any targeted industries and economic sectors; and/or
• other criteria the state will establish to guide local areas in the use of IWT, and in
its own monitoring of the use of IWT.
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ii.) Eligibility: Under 20 CFR 665.220, states may establish policies and definitions to
determine which workers, or groups of workers, are eligible for incumbent worker
services for purposes of statewide activities. The regulations further define an incumbent
worker as "an individual who is employed, but…does not necessarily have to meet the
eligibility requirements for intensive and training services for employed adults and
dislocated workers at 20 CFR 663.220(b) and 663.310." Since this waiver permits local
areas to use local funds for the statewide activity of IWT, the state should establish
definitions and policies to determine eligibility of incumbent workers served under this
waiver, or require that local areas establish their own eligibility definitions and policies
prior to providing IWT.
For states approved to use Adult funds to conduct IWT, ETA’s waiver approval letter
restricted the funds’ use to low-income adults. For the purpose of determining eligibility
for IWT participants under this waiver, states are not required to follow the statutory
definition of low-income described at WIA Section 101. States may choose to establish,
or require the local area to establish, a definition of low-income using the self-sufficiency
criteria referenced at 20 CFR 663.230. While the regulations state that such criteria
"must provide that self-sufficiency means employment that pays at least the lower living
standard income level (LLSIL)", this is the minimum. For purposes of providing IWT
using Adult funds, states may choose to set self-sufficiency at a higher level, as
determined by local costs of living. Several states and local areas have developed "self-
sufficiency calculators" based on factors such as the number and age of household
members and local living costs for housing, childcare, food, transportation, and health
care. Any definition of low-income for the purposes of using Adult funds for IWT can
include some or all of these factors. When a state or local area is providing IWT under
the waiver to a group of workers at a single employer, eligibility for IWT does not need
to be documented at the individual level, as allowed by 20 CFR 665.220 when states use
statewide discretionary funds to deliver IWT. State policy can establish eligibility
criteria for individuals or groups of workers using self-sufficiency criteria as defined by
the state or local area. Group level determinations may only apply to a single company
and should ensure that pre-training wages of trainee groups are less than the self-
sufficiency level. States and local areas are responsible for ensuring that Adult funds are
used for their intended purpose; IWT delivered under this waiver with Adult funds must
be targeted at serving lower-income individuals.
iii.) Skill Attainment: All IWT delivered under this waiver is restricted to skill
attainment activities. The training must result in development of skills that directly
benefit the workers receiving the training by making them more qualified in their field of
employment, and/or provide new skills for new product lines or processes. Therefore,
when providing IWT, states and local areas must consider how, besides averting layoff,
the skills attained contribute either to the maintenance of employment or increase in
employment security for workers. States and local areas should consider whether: 1) the
skills attained through the training could help to qualify participants for a job with
changing skill requirements or for higher paying jobs with their existing employer or
other companies in the area; 2) the skills attained enable participants to perform work that
is at a higher level than their current positions; and 3) the training leads to certifications
or other industry-recognized credentials, or provides a significant step towards achieving
such credentials that increase the workers' overall employability. State or local policies
should ensure that IWT directly benefits workers beyond layoff aversion.
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iv.) Performance Reporting: In its waiver approval letters, ETA required states to report
performance outcomes for any individual served under this waiver in the WIASRD. The
previous WIASRD data elements and layout made reporting such data ambiguous when
IWT is delivered with waivered funds. Therefore, ETA has recently revised the
WIASRD layout, and states should follow the following procedures, as indicated in
TEGL No. 17-09, “Quarterly Submission of Workforce Investment Act Standardized
Record Data (WIASRD)”: In field 309, Incumbent Worker, Record 2 if the
participant received services financially assisted primarily by local formula funds,
via waiver. States should report according to these specifications as soon as possible,
but no later than the first quarter of PY 2010, under an approved waiver for PY 2010.
States are required, in the WIA Annual Report, to describe how they collected and
reported WIASRD elements for any individual served under this waiver during PY 2009.
To the extent possible, states must also describe outcomes for individuals served under
this waiver during PY 2009 in the WIA Annual Report.
B. Use of Rapid Response Funds for Incumbent Worker Training
This waiver allows states to use of a portion of funds reserved for Rapid Response to conduct
allowable statewide activities as defined under WIA section 134(a)(3), specifically IWT.
Under this waiver, a state is permitted to use up to 20 percent of rapid response funds for
IWT only as part of a layoff aversion strategy. All training delivered under this waiver is
restricted to skill attainment activities. The state is required to report performance outcomes
in the WIASRD for any incumbent workers served under this waiver.
i.) Layoff Aversion Strategy: States must ensure that this waiver uses IWT to prevent
layoffs. State policies related to this waiver should include a description of how the
potential for layoff aversion will be determined, such as:
• the likelihood of future layoffs without the training;
• the business circumstances surrounding the probable layoff, and how the training
will prevent it; and/or
• the specific skills to be provided to the workers that will help prevent the layoff or
reduce the magnitude of a large layoff.
States must also establish criteria for determining the provision of IWT under the waiver,
such as:
• how employers will be identified, i.e. knowledge gained by contact with State and
Local WIBs, Chambers of Commerce or Economic Development Councils,
media, or another indicator of a company that is at risk of layoff, particularly due
to lack of a company's ability to compete because of its employee skill-base;
and/or
• any targeted industries and economic sectors.
ii.) Eligibility: Under 20 CFR 665.220, states may establish policies and definitions to
determine which workers, or groups of workers, are eligible for incumbent worker
services for purposes of statewide activities. It further defines an incumbent worker as
"an individual who is employed, but…does not necessarily have to meet the eligibility
requirements for intensive and training services for employed adults and dislocated
workers at 20 CFR 663.220(b) and 663.310." Since this waiver permits use of Rapid
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Response funds for the defined statewide activity of IWT, the state should establish
definitions and policies to determine eligibility of incumbent workers served under this
waiver.
iii.) Skill Attainment: All IWT delivered under this waiver is restricted to skill
attainment activities. The training must result in skills that directly benefit the workers
receiving the training by making them more qualified in their field of employment and/or
provide new skills for new product lines or processes. Therefore, when providing IWT,
states and local areas must consider how, besides averting layoff, the skills attained
contribute either to the maintenance of employment or increase in employment security
for workers. States should consider whether the skills attained through the training could
help to qualify participants for a job with changing skill requirements or for higher
paying jobs with their existing employer or other companies in the area; whether the
skills attained enable participants to perform work that is at a higher level than their
current positions; and whether it offers certification or other industry-recognized
credential or provides a significant step towards achieving such credentials that increases
the workers' overall employability. State policies should describe how it will ensure that
IWT will directly benefit workers beyond layoff aversion.
iv.) Performance Reporting: States are required to report performance outcomes for any
individual served under this waiver in the WIASRD. The previous WIASRD data
elements and layout made reporting such data ambiguous when IWT is delivered with
waivered funds. Therefore, ETA has recently revised the WIASRD layout, and states
should follow the following procedures, as indicated in TEGL No. 17-09: In field 309,
Incumbent Worker, Record 3 if the participant received services financially assisted
primarily by Rapid Response funds, via waiver. States should report according to
these specifications as soon as possible, but no later than the first quarter of PY 2010,
under an approved waiver for PY 2010. States are required, in the WIA Annual Report,
to describe how they collected and reported WIASRD elements for any individual served
under this waiver during PY 2009. To the extent possible, states must also describe
outcomes for individuals served under this waiver during PY 2009 in the WIA Annual
Report.
C. Adult -Dislocated Worker funds transfer
This waiver of WIA Section 133(b)(4) permits local areas to increase the allowable transfer
amount between Adult and Dislocated Worker funding streams allocated to a local area.
Under the waiver, transfer authority is limited to 50 percent. The current waiver authority
applies to funding for all program years, and transfers may not exceed the 50 percent limit,
except for funds transferred under an approved waiver permitting a higher limit if the transfer
occurred during the effective period of the prior waiver authority. As stated in TEGL No.
14-08, Section 19, this waiver does not apply to funds made available through the Recovery
Act. However, the State is permitted to transfer up to 30 percent of ARRA funds between
the Adult and Dislocated Worker programs as discussed in TEGL No. 14-08, change 1.
D. Contracted Class-size Training
This waiver of WIA section 134(d)(4)(G) allows local areas within a state to contract for
class-size training with WIA funds instead of using Individual Training Accounts (ITAs).
This waiver only applies to funding for program years prior to and including PY 2009.
Recovery Act provisions do allow states to use Recovery Act funds for class-size contracts,
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as discussed in TEGL 14-08, Section 6. In addition, the Fiscal Year (FY) 2010
Appropriations Act allows FY 2010 funds to be used to provide training through class-size
contracts. The FY 2010 Appropriations Act states “a local board may award a contract to an
institution of higher education or other eligible training provider if the local board determines
that it would facilitate the training of multiple individuals in high-demand occupations, if
such contract does not limit customer choice.” Funds for FY 2010 will first become
available to states when ETA allots FY 2010 funds for PY 2010, in approximately April
2010. Therefore, a waiver to conduct class-size training is only required if using PY 2009 or
prior year funding; Recovery Act funds and PY 2010 funds allow for class-size training
without a waiver.
8. Summer Youth Employment Activities Waivers. ETA issued a number of waivers for
PY09 in support of summer youth employment activities funded by Recovery Act funds.
ETA is aware that many states intend to mount summer youth employment activities during
the summer months of 2010. This section seeks to clarify the use of waivers for such
activities. ETA will issue separate guidance if a supplemental appropriation for summer
youth employment activities is enacted.
A. Options for funding Summer Youth Employment Activities and Determining the Need
for a Waiver. States are using a variety of funding sources to mount PY 2010 summer youth
employment activities. The summary below provides clarifications of the various
flexibilities available by funding source.
i.) Summer youth employment activities funded solely with Recovery Act
Temporary Assistance to Needy Families (TANF) Emergency Contingency
Funds. Some states are providing subsidized employment to youth with
funds available under the TANF Emergency Contingency fund in summer
2010, as encouraged by ETA and the Department of Health and Human
Services (HHS) (see Training and Employment Notice No. 24-09). The use
of TANF funds must be consistent with the TANF statute and regulations, as
well as state rules and regulations. When a state or local area is not using
WIA funds, WIA statue and regulations do not apply. WIA statute and
waiver authority does not apply to TANF funds.
ii.) Summer youth employment activities funded solely with WIA Recovery Act
Youth funds. The flexibility and requirements described in TEGL No. 14-08,
Section 16 apply, without the need for a performance or program design
flexibility waiver in the summer. Part B of this Section addresses these
funds.
iii.) Summer youth employment activities funded with TANF Emergency
Contingency Funds and WIA Recovery Act Youth funds. States providing
subsidized employment opportunities for youth with TANF Emergency
Contingency funds and Recovery Act funds will not likely need waivers.
WIA statute and waiver authority does not apply to TANF funds. For youth
served with WIA Recovery Act funds, the flexibility and requirements
described in TEGL No. 14-08, Section 16 apply, without the need for a
performance or program design flexibility waiver in the summer. Part B of
this Section addresses these funds.
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iv.) Summer youth employment activities funded with TANF Emergency
Contingency Funds and regular WIA youth formula funds. States may
request the two waivers described in part C of this Section as needed.
v.) Summer youth employment activities funded with TANF Emergency
Contingency Funds, Recovery Act WIA youth funds, and regular WIA youth
formula funds. States must carefully track which participants are served with
which funds and utilize only the flexibilities that are available for that
funding source, as described in the above items.
B. Recovery Act Summer Youth Employment Program Waivers
In TEGL No. 14-08 Section 19.A, ETA discussed three waivers to support the
implementation of summer youth employment activities with Recovery Act funds. It is
unlikely any of these waivers will be approved for Recovery Act funds for the summer of
2010. First, in 2009, ETA approved waivers to expand existing competitively procured
contracts or to conduct a limited expedited competition for the purpose of quickly
implementing summer youth employment activities for the summer of 2009. ETA will
not approve this waiver for Recovery Act funds for summer 2010, since states have had
adequate time to plan for and competitively procure summer youth employment activities
for summer 2010 with Recovery Act funds. ETA will issue separate guidance if a
supplemental appropriation for summer youth employment activities is enacted.
Second, ETA approved waivers of the youth performance measures for older out-of-
school youth when those youth were provided work experience only with Recovery Act
funds beyond the summer months. This waiver expired March 31, 2010. A waiver is not
necessary to only use the work readiness performance indicator in the summer months of
2010; this flexibility was already provided for the entire summer period under TEGL No.
14-08 Section 16. ETA anticipates that those states that intend to use any remaining
Recovery Act Youth funds to implement summer youth employment activities in 2010
will fully expend those funds within the summer months, and will not have Recovery Act
funds to conduct work experience for older out-of-school youth beyond the end of
summer (September 30, 2010). Therefore, ETA does not anticipate that states will
request to waive youth performance measures beyond the summer months.
Third, ETA approved waivers to apply the aspects of program design flexibility
described in Section 16.A of TEGL No. 14-08 to older out of school youth who
participated in work experience beyond the summer months. Like the youth performance
measure waiver, this waiver expired March 31, 2010. A waiver is not necessary to
provide program design flexibility in the summer months of 2010; this flexibility was
already provided for the entire summer period under TEGL No. 14-08 Section 16.
Because it is very unlikely states will have Recovery Act funds to conduct work
experience activities beyond the summer months, ETA does not anticipate that states will
request waivers to apply program design flexibility beyond the summer.
In the rare circumstance that a state does have sufficient Recovery Act funds to conduct
work experience beyond summer 2010, the state may submit a waiver request for either
the youth performance measures or program design flexibility for older out-of-school
youth engaged in work experience beyond the summer months. The waiver request must
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include the required elements for waivers listed in the WIA regulations at 20 CFR
661.420(c), including a justification for the waiver, an estimate of the state’s unexpended
Recovery Act funds, an explanation of why the funds are unexpended, and a description
of how the state will address continued service plans for participants served under the
waiver, such as transition to the WIA Adult program or further education and training
services.
C. Using WIA Formula Funds and TANF Funds for Summer Youth Employment
Activities
Some states are providing subsidized employment to youth with funds available under
the Recovery Act’s TANF Emergency Contingency fund in summer 2010, as encouraged
by ETA and HHS (see Training and Employment Notice No. 24-09). ETA and HHS
encouraged the public workforce system to partner with TANF agencies in their efforts to
promote subsidized employment opportunities for the creation and expansion of
subsidized summer employment for low-income youth allowable under ARRA TANF
Emergency Contingency funding. The notice also encouraged co-enrollment of youth in
TANF and appropriate WIA programs so individuals can benefit from WIA services such
as supportive services, occupational skills training, and other relevant services.
The use of TANF funds must be consistent with the TANF statute and regulations, as
well as state rules and regulations. WIA waiver authority does not apply to TANF funds.
However, ETA is aware that some states are co-enrolling youth in TANF and the WIA
formula youth program, as ETA encouraged. The large-scale use of such a strategy may
dramatically increase the number of youth enrolled in the WIA youth program.
Therefore, ETA is willing to consider state requests for the following two types of
waivers where TANF and WIA youth co-enrollment occurs for summer youth
employment activities which would be effective from May 1, 2010 through September
30, 2010:
1) flexibility to use the work readiness indicator as the only performance
measure for such co-enrolled youth, and
2) ability to apply the program design flexibility for summer youth articulated in
TEGL 14-08 Section 16.A for such co-enrolled youth, specifically to provide
follow-up services as deemed appropriate for such youth participants and to
provide an assessment and Individual Service Strategy (ISS) as deemed
appropriate for such youth.
When submitting a waiver plan to request these waivers, states must address the
requirements described in the WIA regulations at 20 CFR 661.420(c) and provide a
justification for the waiver. In addition, requests should include the following
information:
• An estimate of the number of youth that will be co-enrolled in the WIA youth
program and in TANF summer youth employment activities during PY 2010;
• An estimate of the percent of PY 2010 WIA youth program enrollees that will be
co-enrolled TANF summer youth employment participants only, and not
participate in the WIA youth program beyond summer;
• Description of how the state plans to use WIA Youth funds to support co-enrolled
summer youth participants;
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• A description of continued service plans for co-enrolled participants served under
the waiver, such as transition to the WIA Adult program or further education and
training under WIA funded youth services.
9. Waiver and Work-Flex Request Elements and Process. ETA’s waiver authority provides
states with flexibility to design and implement workforce strategies that meet unique state
needs. When requesting and implementing a waiver, the state must clearly identify how the
waiver helps it achieve the overarching workforce strategies discussed in its Strategic State
Plan. States should also consider how multiple waivers may be used together for maximum
effect. In formulating a waiver package, ETA encourages states to consult Federal Project
Officers (FPO) within each ETA Regional Office. Regional Offices are available to:
• give guidance on current flexibility available under the law and regulations;
• help identify useful and complementary waivers; and
• provide technical assistance in drafting waiver requests.
Generally, ETA intends to approve waivers in alignment with the decisions provided in
Waiver Policy Emphases, Section 5 of this TEGL. However, ETA will consider all requests,
and the unique circumstances in a particular state may result in the approval of a waiver
request that ETA has disapproved in another state. Similarly, states may resubmit formerly
denied waiver requests if circumstances within the state have changed significantly since the
last submission. In addition, ETA encourages states to identify innovative practices and
service delivery strategies, and to request waivers that may be new to the workforce system
as necessary to implement that innovation. States may also request that certain waivers be
applied to National Emergency Grant (NEG) funds, either in its application for an NEG or
during the effective period of an approved NEG.
A. Elements of a Waiver Request. In accordance with WIA Section 189(i)(4)(B), all waiver
requests must include certain required elements. In addition, in its review of certain requests,
ETA may need additional information on a case-by-case basis in order to inform its decision-
making. Below are the statutorily required elements for all requests as well as a brief
description.
i.) Identify the statutory or regulatory requirements that are requested to be waived and
the goals that the State or local area in the State, as appropriate, intends to achieve as a
result of the waiver. In practice this means the State should indicate which area of WIA
or the regulations it would like to have waived.
ii.) Describe the actions that the State or local area, as appropriate, has undertaken to
remove State or local statutory or regulatory barriers.
iii.) Describe the goals of the waiver and the expected programmatic outcomes if the
request is granted. The state should specify how the waiver will help it achieve an
identified strategic goal or set of goals that it has outlined in its State Plan. If possible
and appropriate to the type of waiver requested, the state should provide quantifiable
projections for programmatic outcomes that will result from the waiver.
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iv.) Describe the individuals impacted by the waiver. The state should describe which
populations will benefit from the waiver or otherwise be affected by it. Beneficiaries
may include workforce systems and processes as well as workers and employers.
v.) Describe the process used to monitor the progress in implementing such a waiver,
and the process by which notice and an opportunity to comment on such request has been
provided to the local board. The state should describe policies it has established or will
establish to support waiver implementation; it should identify steps for implementing the
waiver; and it should discuss how it will monitor implementation including programmatic
review, financial oversight, and accountability. In addition, the state should provide a
description of its proactive solicitation of public comments. At minimum, the state
should post the proposed waiver request to the state’s official website for comment or in
a newspaper of general circulation. Ideally, states will develop a targeted outreach
strategy to collect input and comment from all affected stakeholders. The state should
submit any comments or concerns collected in this manner along with the waiver request.
The state should also address how local boards affected by the waiver were notified of
the request.
B. Elements of a Work-Flex Request. States requesting designation as a Work-Flex State
must submit a Work-Flex plan, in accordance with WIA Section 192, which includes
descriptions of:
i.) The process by which local areas in the state may submit and obtain approval by the
state of applications for waivers of requirements applicable under Title I of WIA,
including provisions for public review and comment on local area waiver applications.
ii.) The statutory and regulatory requirements of Title I that are likely to be waived by the
state under the plan.
iii.) The requirements applicable under Sections 8-10 of the Wagner-Peyser Act that are
proposed to be waived, if any.
iv.) The statutory and regulatory requirements of the Older Americans Act of 1965
applicable to state agencies on aging with respect to administration of the Senior
Community Service Employment Program (SCSEP) that are proposed to be waived, if
any.
v.) The outcomes to be achieved by the waiver authority including, where appropriate,
revisions to adjusted levels of performance included in the State or Local Plan under Title
I of WIA.
vi.) Special measures (in addition to current procedures) to be taken to ensure
appropriate accountability for Federal funds in connection with the waivers.
vii.) Prior to submitting a Work-Flex plan, the state must provide all interested parties
and the general public adequate notice and a reasonable opportunity for comment on the
waivers proposed to be implemented. The plan should describe the process used for
ensuring meaningful public comment, including a description of the Governor’s and the
state Workforce Investment Board’s involvement in drafting, reviewing and commenting
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on the plan. The Work-Flex request should describe actions taken to collaborate in the
development of the State Work-Flex plan with local elected officials, local workforce
investment boards and youth councils, the business community (including small
businesses), labor organizations, educators, vocational rehabilitation agencies, and other
interested parties, such as service providers, welfare agencies, community-based
organizations, transportations providers, and other stakeholders.
C. Process for Submitting Extension of Waiver Requests or New Waiver Requests. To
extend currently approved waivers for PY 2010, states do not need to submit anything to
ETA. ETA will grant an extension of an additional year for existing waivers that have been
approved, except in the following circumstances: 1) ETA has advised the state in prior
correspondence that it did not anticipate approving an extension beyond June 30, 2010; or 2)
ETA advises the state that there are significant performance issues related to the use of the
waiver or that the waiver as implemented is not in compliance with the terms prescribed in
the approval letter. States may submit a request for a new waiver at any time during the
program year. As described in TEGL 21-09, ETA advised states that wished to submit new
waiver requests that they want to be in effect for all of PY 2010 should do so by May 14,
2010. Please see TEGL No. 21-09 for further details on the waiver request process for PY
2010.
For requests submitted at any other time of year, the request process is similar to that
outlined in TEGL No. 21-09. States can email their request to [email protected], with a
copy to the appropriate Regional Administrator. States can also submit a hard copy waiver
request with an original signature to Janet Sten, the Federal Coordinator for Plan Review and
Approval, and one copy to the appropriate ETA Regional Administrator. The address for the
Federal Coordinator is as follows:
Division of Workforce System Support
Employment and Training Administration
U.S. Department of Labor
200 Constitution Ave., NW, Room S-4231
Washington, DC 20210
ATTN: Janet Sten
10. Waiver Monitoring and Accountability. ETA intends to enhance its oversight and
monitoring of waivers to determine what impact waivers have on performance outcomes,
gain insight into how states are using waivers, and to ensure that the integrity of the waiver
guidelines as stated in the waiver decision letters is maintained. At the national level,
oversight activities will include an analysis of performance data, review of information
provided by states in the WIA Annual Report, and an evaluation of waiver impacts. In
accordance with requirements established in TEGL 14-00, Change 3, each state should be
tracking waiver implementation, and describe how waivers are being used and their effect on
performance as part of the WIA Annual Report. As part of the ongoing monitoring efforts
performed by regional offices, ETA will regularly review state waiver implementation. In its
waiver monitoring efforts, ETA seeks to:
• ensure that the state has implemented waivers in accordance with the parameters
established in the waiver request and the applicable ETA approval letter;
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• make certain that appropriate safeguards and controls have been implemented to
maintain the integrity of the funds in accordance with limitations imposed in the
waiver decision letter;
• examine how waivers changed the activities of state and local areas;
• evaluate how waivers in practice are supporting the overall strategic framework and
outcomes established by states; and
• provide any technical assistance as needed and as appropriate.
11. Useful Resources. Information about waivers is available at http://www.doleta.gov/waivers.
A summary report of all PY 2009 approved waivers and states for which they are approved is
available at http://www.doleta.gov/waivers/pdf/WIA_summary_waiver_report_12210.pdf.
12. Inquiries. States should address their inquiries to their ETA Regional Office.
13. Attachment. Attachment A: Waiver Decisions for PY 2009
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Attachment 1 (official PDF): https://www.dol.gov/sites/dolgov/files/ETA/advisories/TEGL/2010/TEGL26-09a1.pdf
Attachment A: Waiver Decisions for PY 2009
Waiver Name Waiver Description PY09 Policy Decision
Funds Flexibility
ETA approved this waiver, but with
Waiver of WIA Section 133(b)(4) to increase
Adult-Dislocated Worker more limited parameters. The
the funds transfer limit between the Adult
Transfer transfer authority may now be
and Dislocated Worker programs
increased to 50%.
Waiver of WIA Section 101(8)(C) of the
requirement for a 50% employer contribution
Customized Training-
for customized training to permit local areas ETA approved this waiver.
Employer Contribution
to use a sliding scale to reduce the
contribution based on the size of the business
Waiver of WIA Section 101(31)(B) of the
50% limit on reimbursement to employers for
On-the-Job Training-
OJT to permit local areas to use a sliding ETA approved this waiver.
Employer Reimbursement
scale to increase the reimbursement based on
the size of the business
ETA approved this waiver, but with
more limited parameters.
Local Adult and Dislocated
Worker funds may only be used
for IWT as part of layoff aversion
and are limited to:
Local Funds for Waiver of WIA Section 134(a) to permit o 20% of local Dislocated
Incumbent Worker local areas to use a portion of local Adult, Worker funds for IWT OR
Training as a Statewide Dislocated Worker, and Youth funds for o 10% of Dislocated Worker
Activity statewide activities, specifically IWT funds and 10% or Adult
funds for IWT OR
o 10% of Adult funds for IWT
Youth funds may not be used for
IWT.
Local funds may not be used for
any other statewide activities.
ETA approved this waiver, but with
more limited parameters.
Waiver granted for purpose of
using 20% of rapid response funds
for IWT as part of lay-off
Rapid Response Funds for Waiver of WIA Section 134(a)(1)(A) to aversion only.
Incumbent Worker permit states to use a portion of rapid
Training and Other response funds for IWT and other statewide ETA will still consider waiver
Statewide Activities activities requests to use rapid response
funds for other statewide activities
for the purpose of innovative
training and service delivery
approaches that enhance services
to dislocated workers.
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Waiver Name Waiver Description PY09 Policy Decision
Waiver of WIA Sections 128(c)(2) and
133(c)(2), and 20 CFR 667.160, to permit
states to recapture local funds midway
Recapture and through the year, recapture of unexpended ETA did not grant this waiver for any
Reallocation funds instead of unobligated funds, and state in PY 2009.
reallocation based on local area expenditure
rates. If requested, the waiver allowed for
reallocation based on a variety of factors.
Performance
Waiver of WIA section 136(b)(2)(A)(i)(II)
and 20 CFR 666.140 to permit an alternate
Alternative Seasonal ETA approved this waiver on a case
measure of employment retention for areas of
Performance Measure by case basis in PY 2009.
the state where the majority of employment
is seasonal
Waiver of WIA Section 136(b) to permit
implementation of, and reporting only for,
Common Measures ETA approved this waiver.
the common measures in lieu of the current
WIA statutory measures
Waiver of WIA Section 134(a)(2)(B)(iii) and
Incentive Grants to Local ETA approved this waiver on a case
20 CFR 665.200(e) to exempt the state from
Areas by case basis in PY 2009.
providing local incentive grants
Reports as a Statewide Waiver of WIA Section 136(c) and 136(d) to ETA did not grant this waiver for any
Region permit the state to report only statewide data state in PY 2009.
Waiver of regulations at 20 CFR 666 and
WIASRD Elements for
667.300(a) to allow states to discontinue
Incumbent Worker ETA approved this waiver.
collection of 7 WIASRD data elements for
Training
incumbent workers
Local Performance
Waiver of regulations at 20 CFR 666.300 to
Exemption for ETA did not grant this waiver for any
exclude entrepreneurship training from local
Entrepreneurship state in PY 2009.
performance measures
Training
Waiver of regulations at 20 CFR 666.100 to
exempt state from including credential
attainment outcomes for participants enrolled
OJT Credential
in OJT in the credential performance measure ETA approved this waiver.
Performance
calculations. All participants served and
outcomes should be reported in the
WIASRD.
Waiver of WIA Section 136(h) and 20 CFR
666.420 to permit sanctions for poor
Performance Sanctions
performance to be applied to a consortium of ETA approved this waiver.
Applied to a Consortium
multiple local areas, rather than to the
individual local areas
Waiver of regulations at 20 CFR 666.300 and
Performance Negotiations 666.310 to permit a consortium of multiple
ETA approved this waiver.
as a Consortium local areas to negotiate performance goals
with the State as one entity
Youth
Youth Individual Training Waiver of regulations at 20 CFR 664.510 of
ETA approved this waiver.
Accounts the prohibition on the use of ITAs for youth
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Waiver Name Waiver Description PY09 Policy Decision
ETA approved this waiver, but with
more limited parameters.
ETA will allow One-Stop
Waiver of WIA Section 123 of the Operators to directly provide the
Competitive Procurement
requirement for competitive procurement of following 3 elements: supportive
for Youth Program
service providers for some or all youth services, follow-up, and work
Elements
program elements experience. ETA did not grant
this waiver for other elements
except in very limited
circumstances in PY 2009.
Waiver of WIA Section 129(c)(4)(A) to
ETA considered this waiver on a case
Alternative School for allow certain alternative school enrollees to
by case basis, but did not approve for
Out-of-School Youth count toward the 30% out-of-school youth
any state in PY 2009.
expenditure requirement
Waiver of WIA Section 129(c)(2) to allow
local areas to choose which of the 10 youth ETA did not grant this waiver for any
Youth Program Elements
program elements to make available to youth state in PY 2009.
participants
Waiver of regulations at 20 CFR 664.450(b)
of the requirement that all youth participants ETA did not grant this waiver for any
Youth Follow-up Services
receive follow-up services for a minimum state in PY 2009.
duration of 12 months
Waiver of WIA Section 101(13) to grant
ETA will not grant this waiver as it
Youth Eligibility eligibility to children of parents who are
lies outside the waiver authority.
WIA Adult participants
Governance
Waiver of regulations at 20 CFR 661.300(f)
State Board Acting as ETA approved this waiver on a case-
to allow the State Board to carry out the roles
Local Board by-case basis in PY 2009.
and responsibilities of the Local Board
Waiver of WIA Section 111(b) to streamline
State WIB Membership ETA approved this waiver on a case-
the membership of the State Workforce
Requirements by-case basis in PY 2009.
Board
Other
Waiver of regulations at 20 CFR 663.530 of
ETPL Initial Eligibility the time limit on the period of initial ETA approved this waiver.
eligibility for training providers
ETPL for Providers Waiver of the ETPL process for eligible ETA will not grant this waiver as it
Adding Programs providers adding programs lies outside the waiver authority.
Public Service Waiver of WIA Section 195(10) and 20 CFR
Employment ETA did not grant this waiver for any
667.264(a)(2) of the prohibition on the use of
state in PY 2009.
funds for public service employment
ETA approved one state for this
waiver for FY 09 funds on a case-by-
case basis. The FY 2010 DOL
Appropriations Act allows local areas
Waiver of WIA Section 134(d)(4)(G) to
Contracting for Training to contract with providers for class-
allow local areas to contract for training
Outside of ITA’s size training in high-demand
outside the ITA process
occupations, if it does not limit
customer choice. A waiver is
therefore not necessary for FY 2010
WIA funds.
3
Waiver Name Waiver Description PY09 Policy Decision
Waiver of regulations at 20 CFR
662.240(b)(10) to allow WIA and W-P ETA approved this waiver on a case-
One-Stop Intake
funded staff to perform intake for other by-case basis in PY 2009.
programs
Waiver at WIA Section 192 to provide State
ETA approved this waiver on a case-
Work-Flex authority to waive certain elements of WIA
by-case basis in PY 2009.
for local areas, based on submitted plan
Waiver of WIA Section 181(e) to permit the
use of a limited amount of WIA funds to ETA did not grant this waiver for any
Business Capitalization
capitalize a small business in concert with state in PY 2009.
entrepreneurial or small business training
Waiver of regulations at 20 CFR 663.820 of
the requirement that dislocated workers must
Needs Related Payments ETA will not grant this waiver as it
be enrolled in training by end of 13th week
for Dislocated Workers lies outside the waiver authority.
after lay-off to receive needs-related
payments
Waiver not needed; refer to TEGL
Sequence of Service Waiver to streamline sequence of service
14-08, section 13.
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