SCSEP placements with faith organizations

Accessible letter PDF: https://www.dol.gov/sites/dolgov/files/ETA/advisories/TEGL/2008/TEGL29-07acc.pdf

CLASSIFICATION
                                                  SCSEP/CFBCI
  EMPLOYMENT AND TRAINING ADMINISTRATION
             ADVISORY SYSTEM                      CORRESPONDENCE SYMBOL
           U. S. Department of Labor              OWI
            Washington, D.C. 20210                DATE
                                                  May 1, 2008


TRAINING AND EMPLOYMENT GUIDANCE LETTER NO. 29-07

TO:            ALL SENIOR COMMUNITY SERVICE EMPLOYMENT PROGRAM
               (SCSEP) GRANTEES

FROM:          BRENT R. ORRELL /s/
               Acting Assistant Secretary

SUBJECT:       Senior Community Service Employment Program (SCSEP) Participant
               Placement and Work with Faith-Based and Community Organizations

1. Purpose. To inform the Senior Community Service Employment Program (SCSEP)
   grantees about the Department of Labor’s (DOL) equal treatment regulations at 29
   CFR Part 2, Subpart D, which outline certain constitutional and other requirements
   related to the participation of faith-based organizations in DOL social service
   programs.

2. References. 29 CFR Part 2, Subpart D, Equal Treatment in Department of Labor
   Programs for Faith-Based and Community Organizations; 20 CFR § 641.140,
   Provisions Governing the Senior Community Service Employment Program; OMB
   Circular A-122, Cost Principles for Non-Profit Organizations; OMB Circular A-21,
   F(4), Cost Principles for Educational Institutions, Operation and Maintenance
   Expenses.

3. Background. DOL’s Center for Faith-Based and Community Initiatives (Center)
   was created when President Bush signed Executive Order 13198 on January 29, 2001.
   The purpose of the Center, and a key component of the President's Management
   Agenda for DOL, is to remove statutory, regulatory, and procedural barriers that
   prevent faith-based and community organizations (FBCOs) from partnering with
   DOL’s programs. In 2001, an audit by DOL revealed that both faith-based and
   community-based grassroots organizations are often under-utilized as partners in the
   workforce investment system.

   It is important that SCSEP grantees have the opportunity to work with as many
   organizations as possible, including faith-based organizations, as they assist seniors to
   get the training and work experience they need to re-enter the workforce. Faith-based
   organizations provide many support services and resources for seniors seeking to
   enter the workforce, including: being located in underprivileged communities with
   access to seniors seeking work not already reached by the workforce investment
   system; possessing close cultural connections and community credibility; serving as a
   ready source of community support and other private resources; providing
   individualized, supportive services that can effectively complement government

  RECISSIONS                                               EXPIRATION DATE
  None                                                     Continuing

   services; and serving as a distribution network for information and materials to reach
   seniors most in need.

   This guidance instructs all SCSEP grantees on how to successfully engage faith-based
   and community organizations in serving seniors through SCSEP. It provides the
   regulatory framework from within which faith-based and community organizations
   can participate and compete equally in the grantee network that provides much
   needed social services to SCSEP participants by following the equal treatment
   guidelines outlined below.

4. Faith-Based Organizations and SCSEP Placement. DOL’s equal treatment
   regulations at 29 CFR Part 2, Subpart D, outline certain constitutional and other
   requirements related to the participation of faith-based organizations in DOL’s social
   service programs, including SCSEP. These requirements as applied to SCSEP
   grantees require that:

       •   Faith-based organizations must be eligible, on the same basis as any other
           organization, to host participants for work-based training. DOL’s equal
           treatment regulations prohibit any discrimination for or against an
           organization on the basis of its religious character, affiliation, or lack thereof.
           Consistent with the equal treatment regulations, and the SCSEP regulations at
           20 CFR § 641.140 defining host agency eligibility, as long as a faith-based
           organization is a 501(c)(3), is not a political party, and is otherwise eligible
           under the SCSEP regulations, it must receive the same consideration to serve
           as a “host organization” that any other non-profit organization would receive.

       •   Faith-based organizations hosting participants are prohibited from employing
           the participants to support or engage in any inherently religious activities,
           such as religious worship, instruction, or proselytizing.

       •   Faith-based organizations that participate in SCSEP may continue to carry out
           their missions and maintain their religious character. This autonomy includes,
           among other things, the right to use the organization’s facilities to provide
           DOL-supported social services without removing or altering religious art,
           icons, scriptures or other religious symbols; the right to govern themselves
           and to select board members on the basis of religion; and the right to express
           freely their views, including religious views.

5. Permitted and Prohibited Activities. 29 CFR Part 2, Subpart D, also outlines
   certain religion-related responsibilities that faith-based organizations, as well as other
   entities that receive DOL support, have under current law. The SCSEP statute and
   regulations also include a specific restriction on SCSEP projects involving the
   construction, operation, or maintenance of facilities used for religious worship or
   instruction. These responsibilities as applied to SCSEP grantees require that:




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   •   Grantees administering the SCSEP program must not discriminate for or
       against a program participant or prospective participant on the basis of
       religion or religious belief. Further, program providers must not
       impermissibly restrict participants’ rights to exercise religious freedom.
       While the right to exercise religious freedom does not necessarily require that
       participants who object to placement at a particular organization be given the
       choice of an alternative provider, grantees would do well to seek a diversity of
       providers, where reasonably possible, so as to find appropriate placements for
       all who need assistance.

   •   Grantees participating in the SCSEP program must ensure that no direct DOL
       financial assistance is used for inherently religious activities. If a host
       organization conducts religious activities, it must separate the religious
       activities in time or location from the SCSEP program. This means that
       participants may not be employed to carry out inherently religious activities or
       required to participate in any inherently religious activities. Participants,
       however, may voluntarily choose to participate in such activities, if they so
       wish. The host organizations must make clear that a decision to participate, or
       not, in such activities will in no way affect the quality of work-based training
       provided.

In accordance with the SCSEP statute and regulations, SCSEP participants also may
not be employed to carry out the construction, operation, or maintenance of any
facility used or to be used for religious instruction or religious worship. For example,
SCSEP participants may not be employed to construct a church or synagogue, to
operate or maintain the electrical systems that keep the church or synagogue running,
or to perform janitorial services in such facilities. However, the construction,
operation, and maintenance prohibition does not prevent a participant from working
in a social services program that takes place in a place of worship or religious
instruction (as long as the inherently religious activities prohibition is met). For
example, a SCSEP participant could serve soup in a soup kitchen held in a church
basement or be an aide in a day care center held in a synagogue.

Whether the construction, operation, and maintenance prohibition applies, that is,
whether a facility is used or to be used as a place of religious instruction or religious
worship, will depend on the specific circumstances of a placement and the nature of
the facility. The construction, operation, and maintenance prohibition will apply to
facilities where religious use is part of the inherent nature and purpose of the facility.
On the other hand, the prohibition will not apply to secular facilities where use for
religious worship or instruction is merely incidental or insignificant. To illustrate,
SCSEP participants could not help construct, maintain, or operate a church or
mosque. Such a facility is considered to be used as a place for religious instruction or
religious worship because the inherent nature or purpose of the facility is religious
worship or instruction. This would be true even if the church or mosque was used
just a few hours a week for religious worship while serving the rest of the time as a
homeless shelter. On the other hand, SCSEP participants could be involved in




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   construction, operation, or maintenance of a secular facility, such as a hotel,
   restaurant, library, school, or community recreation center, that is occasionally used
   for religious worship or instruction. In such cases, the inherent nature or purpose of
   the facility is not religious worship or instruction, and the actual religious use is not
   significant and is incidental to the facility’s inherent purpose.

   In some instances, it will not be so obvious whether a facility is used or to be used as
   a place for religious instruction or religious worship. Such determinations will be
   based on the particular circumstances and will be dependent on a variety of factors
   including but not limited to, the regularity of the religious use, the availability of the
   forum for public use, the nature of the other uses, and how the facility is operated and
   advertised. Grantees are advised to bring such questions to the attention of the grant
   officer so that the facts and circumstances can be evaluated on an independent basis.

6. Eligibility Flowchart and Examples for SCSEP Grants. SCSEP participants can
   be placed with any 501(c)(3) entity, including faith-based entities, except political
   parties. Agencies that place the participants cannot discriminate between faith-based
   and other 501(c)(3) entities when making placement decisions, nor can such agencies
   or the host agencies discriminate for or against a program participant or prospective
   participant on the basis of religion or religious belief. Organizations that engage in
   inherently religious activities, such as religious worship, instruction, or proselytizing,
   must ensure that the religious activities are offered separately in time or location from
   Federally assisted activities, and that the participation of participants in such activities
   must be voluntary and not required.

   Consistent with these requirements, participants generally may engage in any work
   activity, with two exceptions related to religion:

   (1) Like all programs receiving direct Federal support, employees whose positions
   are funded through SCSEP must not engage in any inherently religious activity, such
   as religious instruction, religious worship, or proselytizing while on the job; and

   (2) Participants must not provide construction, operation, or maintenance services in
   facilities inherently used or to be used for religious instruction or worship, as
   explained further above.

   Use the narrative flowchart below (in addition, see the attached visual flowchart) to
   determine whether a proposed host agency position is eligible for a SCSEP placement
   in relation to the religious prohibitions.

   Question 1: Will the participant be engaged in inherently religious activities
   such as providing religious instruction, leading worship services, or
   proselytizing?

           No:         Go to next question.




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               Yes:           The activity is not eligible. Consult your lawyer or your grant
                              coordinator for additional guidance.

     Question 2: Will the participant be engaged in construction, operation, or
     maintenance? (Operation and maintenance are activities undertaken to keep a
     building in an efficient operating condition, rather than add to a building’s capital
     value. 1 )

               No:            The activity is eligible (assuming other requirements are met). No
                              further analysis is needed under the religious restrictions.
               Yes:           Go to next question.

     Question 3: Will the participant engage in this construction, operation, or
     maintenance in a facility where religious worship or religious instruction takes
     place or will take place?

               No:            The activity is eligible (assuming other requirements are met). No
                              further analysis is needed under the religious restrictions.
               Yes:           Go to next question.

     Question 4: Is religious instruction or worship part of the inherent nature and
     purpose of the facility (such as for a church, synagogue, or religious school)?

               No:            Go to next question.
               Yes:           The participant may not be placed in a position involving the
                              construction, operation, or maintenance of the facility.

     Question 5: Is the religious worship or instruction more than an incidental or
     insignificant activity in the facility?

               No:            The activity is eligible (assuming other requirements are met). No
                              further analysis is needed under the religious use restrictions.
               Yes:           Further analysis and review by the grant officer will be necessary
                              to determine if it is considered to be a facility used or to be used as
                              a place for religious instruction or religious worship. Consult your
                              lawyer or grant coordinator for additional guidance.

7. Action Requested. Grantees should distribute this guidance to all sub-recipients and
   to all host agencies to which this guidance applies.
1
  See, e.g., OMB Circular A-122 (maintenance activities “neither add to the permanent value of the property nor
appreciably prolong its intended life, but keep it in an efficient operating condition”); see also Circular A-21, F(4)
(“Operation and maintenance expenses. The expenses under this heading are those that have been incurred for the
administration, supervision, operation, maintenance, preservation, and protection of the institution's physical plant.
They include expenses normally incurred for such items as janitorial and utility services; repairs and ordinary or normal
alterations of buildings, furniture and equipment; care of grounds; maintenance and operation of buildings and other
plant facilities; security; earthquake and disaster preparedness; environmental safety; hazardous waste disposal;
property, liability and all other insurance relating to property; space and capital leasing; facility planning and
management; and, central receiving.”).




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8. Inquiries. To ask questions regarding the information contained in this SCSEP
   guidance, please contact Judith Gilbert in the Office of Workforce Investment,
   Division of Adult Services at (202) 693-3938, or [email protected], or contact
   Kristin Fortin in the Center for Faith-Based and Community Initiatives at
   (202) 693-6457, or [email protected].

9. Attachment. SCSEP Legal Framework: Is a Proposed Host Agency Position Eligible
   for a SCSEP Placement in Relation to the Religious Prohibitions?




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Attachment PDF: https://www.dol.gov/sites/dolgov/files/ETA/advisories/TEGL/2008/TEGL29-07a1.pdf

SCSEP LEGAL FRAMEWORK: IS A PROPOSED HOST AGENCY POSITION ELIGIBLE FOR
           A SCSEP PLACEMENT IN RELATION TO THE RELIGIOUS PROHIBITIONS?

                                             QUESTION 1: Will the participant be engaged
                                                 in inherently religious activities (such as
                                              providing religious instruction, leading worship
                                                         services or proselytizing)?

                                                                                                        YES: The activity is
                         NO: Go to Question 2.                                                          not eligible. Consult
                                                                                                        your lawyer or your
                                                                                                        grant coordinator for
                                                                                                        additional guidance.
                QUESTION 2: Will the participant be
                engaged in construction, operation or
                maintenance? (Operation and maintenance
                are activities undertaken to keep a building in
                 an efficient operating condition, rather than
                      add to a building’s capital value.)


NO: The activity is
 eligible (assuming                   YES: Go to Question 3.                              NO: The activity is eligible
other requirements                                                                      (assuming other requirements
are met). No further                                                                    are met). No further analysis is
 analysis is needed                                                                       needed under the religious
 under the religious              QUESTION 3: Will the participant                                restrictions.
     restrictions.                    engage in this construction,
                                    operation or maintenance in a
                                  facility where religious worship or
                                  religious instruction takes place or
                                            will take place?                         YES: Go to Question 4.



                                                                               QUESTION 4: Is religious
                                                                           instruction or worship part of the
                                                                            inherent nature and purpose of
                                                                            the facility (such as for a church,
                                                                             synagogue or religious school)?

   QUESTION 5: Is the
    religious worship or                                                                                              YES: The
                                                NO: Go to Question 5.
 instruction more than an                                                                                          participant may
incidental or insignificant                                                                                       not be placed in a
  activity in the facility?                                                                                            position
                                                                                                                    involving the
                                                                                                                    construction,
                                       NO: The activity is eligible (assuming other                                  operation or
                                       requirements are met). No further analysis is                               maintenance of
                                        needed under the religious use restrictions.                                 the facility.

                        OR

                                YES: Further analysis and review by the grant officer will be
                              necessary to determine if it is considered to be a facility used or to
                               be used as a place for religious instruction or religious worship.
                              Consult your lawyer or grant coordinator for additional guidance.