Respect of FloridaRegulatory Training

Tamara BalengerSenior Regulatory Specialist

NISHtbalenger@nish.org

JWOD UPDATE

Regulatory Reviews

NISH Regulatory Reviews Same focus on Compliance

Changes Include:Random payroll selection of filesIncreased number of files reviewedMore scrutiny of disability documentationLarge agencies can expect significantly more time on site.Corrective Actions required and monitoredFollow-up visits may be warranted

Random File SelectionCRP will provide NISH Regulatory Staff with a list including all employees counted as Disabled Direct Labor.Names will be picked randomly to determine which files will be reviewed.10% of JWOD files and Agency files will be reviewed or 20 JWOD files and 20 Agency files which ever is greater.

File ReviewNISH reviewer will pick the files so that each contract has representation and will also include files from all agency locations in cases where a CRP has more than one location.

Direct Labor DefinitionJWOD Regulations (41CFR51-

1.3)Direct labor means all work required for preparation, processing, and packing of a commodity or work directly related to the performance of a service, but not supervision, administration, inspection or shipping.

Severe Disability DefinitionJWOD Regulations (41CFR51-

1.3)A person other than a blind person who has a severe physical or mental impairment (a residual, limiting condition resulting from an injury, disease, or congenital defect) which so limits the person's functional capabilities (mobility, communication, self-care, self-direction, work tolerance or work skills) that the individual is unable to engage in normal competitive employment over an extended period of time.

Regulatory Requirements 41CFR 51-4.3c

(1) A written report signed by a licensed physician, psychiatrist, or qualified psychologist, reflecting the nature and extent of the disability or disabilities that cause such person to qualify as a person with a severe disability, or a certification of the disability or disabilities by a State or local governmental entity.

Regulatory Requirements 41CFR 51-4.3c

(2) Reports which state whether that individual is capable of engaging in normal competitive employment. These reports shall be signed by a person or persons qualified by training and experience to evaluate the work potential, interests, aptitudes, and abilities of persons with disabilities and shall normally consist of preadmission evaluations and reevaluations prepared at least annually.

Regulatory Requirements 41CFR 51-4.3c

The file on individuals who have been in the nonprofit agency for less than two years shall contain the preadmission report and, where appropriate, the next annual reevaluation. The file on individuals who have been in the nonprofit agency for two or more years shall contain, as a minimum, the reports of the two most recent annual reevaluations.

Competitive EmploymentThe Committee has traditionally defined it as:

The ability of an individual to find, obtain and maintain a job with a commercial company with no supports from a nonprofit agency.

Competitive EmploymentCapability for normal competitive employment shall be determined from information developed by an ongoing evaluation program conducted by or for the nonprofit agency and shall include as a minimum, a preadmission evaluation and a reevaluation at least annually of each individual's capability for normal competitive employment.

Competitive EmploymentA person with a severe mental or physical impairment who is able to engage in normal competitive employment because the impairment has been overcome or the condition has been substantially corrected is not "other severely handicapped" within the meaning of the definition.

Increased Focus on Competitive Employment

EvaluationsThe Competitive Employment Statement alone is not enough.Information that supports the barrier(s) created by the individuals disability that has made competitive employment unattainable as well as what supports the agency provides that would not be provided in normal competitive employment needs to be documented in files.

Conducting Assessments for Competitive Employment

Questions to ask:Is the individual severely disabled?Is the individual Competitively employable?Does the documentation support the evaluation?Is the reason for considering the individual explained?

Documentation – Critical!CRP staff can usually verbally list off all of the individuals limitations but they are not always documented in the file.

Disability Related Limitations

The documentation should support any functional limitations in:

Self-careWork SkillsWork ToleranceCommunicationMobility

Must be a result of the Documented Disability

Disability Related Supports

To justify determinations of non-competitive employability the individual will have to receive supports that are not normally provided by employers.Document the supports provided to the individual by the CRP.

Annual EvaluationsThings to consider:

Has there been any change in the individual’s disability?Do the functional limitations still exist?What supports or accommodations are still required?

Committee PowerPoint Presentation

Presented at the 2006 NISH Training Conference

Available on NISH.org NPA Regulatory Assistance Page

JWOD UPDATE

Direct Labor RatioRequirements

Compliance Memorandum 4

Overall rations below 75% after second quarter will receive a warning letter outlining the process that will be initiated should the CRP finish the year below 75%.Phase-In RequirementsReport ration to two decimal places – ratios above 74.51 will be counted as 75%.

Failure to meet Agency Direct Labor Ratio

Requirements1. Certified letter placing

agency on probation2. Suspend any proposed

additions for the CRP 3. Require reporting

quarterly to Committee

4. Failure to submit reports will result in withdrawal of Authorization

5. On-site Compliance visits will be made if determined appropriate

6. Extreme situations my warrant withdrawal

7. Disqualification will cease future orders.

Failure to meet Agency Ratio Requirements during second

year1. CRP will present specific circumstances2. Committee Vote3. If allowed to remain producing- reports

required quarterly directly to the Committee

4. On-site Compliance Reviews as soon as practical

5. Disqualification removes JWOD contracts and future orders

Memorandum No. 5Covers JWOD Program Direct Labor Ratio RequirementsCumulative JWOD Ratio > 75%Individual Contracts > 60% as long as cumulative is > 75%Enforcement effective FY07

Considerations If a CRP’s Cumulative JWOD Ratio is Below 75% the Committee will take into consideration the following:

Approved Phase-In in effectProjects with fewer than 5 workersNational Emergencies/Wartime SurgeProjects previously approved at lower ratiosEffect of promotion or competitive placement of severely disabled employees

Committee MemorandumsBoth Available on

NISH.org

NPA Page

Department of LaborMost Common Mistakes

Certificate FilingPrevailing Wage Surveys

Most Common Mistakes when filing for DOL 14c Certificates

Failure to Complete all parts of the applicationFailure to submit required attachmentsFailure to renew in a timely manner

Prevailing Wage SurveysMost Common Mistakes

Failure to use “comparable work” sourcesUse of only one sourceUse of entry level ratesUsing Minimum Wage

Prevailing Wage SurveysMost Common Mistakes

Failure to conduct annually or when minimum wage changesMath and rounding errorsDeskillingFail to implement in a timely manner(1st pay period)

Setting Standards and Performance

Measurement Most Common MistakesUsing individuals who are disabled for the work to set standardsSetting standards based on significantly short cycle timings- should be 20-25 minutes or use multiple timings and average

Setting Standards and Performance Measurement

Most Common MistakesFailure to define the work and the quality expectationsFailure to re-examine the standards periodically for changes in work methodFailure to perform Hourly evaluations at least every 6 MonthsUsing weights other than 90/10

Setting Standards and Performance Measurement

Most Common MistakesCombined use of 90/10 and rework with reduction of quality measurementMath and rounding errorsAveraging productivity over an extended period of timeDeskillingUsing behavioral factors to adjust wages

Calculation of Piece RatesMost Common Mistakes

Failure to incorporate PF&DUse of incorrect PF&D (must use a allowance factor of at least 1.675 some use 1.20) Using improper prevailing wage rate to calculate piece rate

Service ContractsMost Common Mistakes

Use of wrong Wage Determination Rate- issued to Contractor by Contracting Officer.Failure to pay full Health & Welfare

Determining Commensurate Wages for Hourly Employees

How to set Standards and Perform Productivity Ratings

The ProcessDefine the WorkerDetermine Wage for JobDefine the WorkMeasure the WorkMeasure the WorkerAdjust Payroll

Fair Labor Standards ActFLSA

Regulation –Title 29, Part 525 CFR

This regulation covers the employment of Workers with Disabilities under Special Certificate

Enforced by Department of Labor

Prevailing Wage Surveys

Prevailing WagesSection 525.10 (a-g)

Determining prevailing wage rate is the first step toward establishing the correct commensurate

wage

DefinitionExperienced Worker:

A worker who has learned the basic elements or requirements of the

work to be performed. Typically, a worker will have received at least one pay raise after completion of

the probationary or training period.

Prevailing WagesSurvey must be completed annuallyMINIMUM of 3 firmsSimilar methods and equipmentCannot be less than minimum wage

DocumentDate of contactNameAddressPhone numberIndividuals nameWage information provided Job Description

Definition

A comparable firm is one that is similar in size in terms of employees or competes for or bids on contracts of a similar size or nature.

Prevailing Wage-continued

If data for the specific job to be performed cannot be found, it is acceptable to use the wage paid to experienced workers employed in similar jobs that require the same general skill levels.

If similar work cannot be found in the vicinity-

The closest comparable community may be used

Prevailing Wage

Employer may contact other sources such as the Bureau of Labor Statistics, private or State employment services where surveys are not practical.

The prevailing wage rate may never be LESS the applicable State or Federal Minimum Wage and will usually be higher.

Prevailing Wage

“De-skilling” of prevailing wage rates (arbitrary downward adjustments made in prevailing wage rates to account for differences in duties, methods, equipment and responsibilities between the work of the worker with disabilities and the work done by employees who do not have disabilities in competitive industry) is not permitted by the Wage & Hour Division.

Must be able to prove Wage is for an

experienced worker

Get starting wage

Clearly state in writing when requesting the definition of an experienced worker

Calculations

Weighted or Straight Average

Rounding

Disabled for the Work

FLSA Requires documentation to support that productivity impairment is caused by a disability.

Not all disabilities affect all types of work

Supporting Documentation

Disability Documentation from a medical professionalIndividual Performance EvaluationsCase NotesWork observationsIncident Reports

Record KeepingPosted Special Minimum Wage Certificate and DOL PosterDisability DocumentationAnnual Prevailing Wage Surveys or Wage Determination Rates (WDR)Production Standards

Define The Worker

Job Descriptions

Job DescriptionDefine specific job duties, responsibilities and tasks in generalList skills, education or experience neededIndicate days, time and environmental conditions for the jobIndicate to whom the worker will report (position not a persons name)

Department of Labor Dictionary of Occupational

Titles is a great tool to assist in writing Job

Descriptions

http://www.oalj.dol.gov/libdot.htm#definitions

Define the Work

Task Analysis

Task AnalysisBreak job into manageable components, tasks and subtasksProvide accurate method and procedures to accomplish the taskSpecify the quantity/Quality standard measurementsInclude types of equipment and supplies

Task AnalysisSpecify area, location, floor, building etc.Determine a definite start and stop point for taskEnsure the method is the most effectiveValidate that the task analysis is an accurate description of the work as it is performed

Measure the Work

Setting the Non Disabled Standard

Measure the WorkSetting the Standard

Perform task according to task analysis- methods must matchStart and Stop the timing at the points indicated in the Task AnalysisQuality must be 100%- add rework time if neededDocument measurement method used to set the standard

Measure the WorkSetting the Standard

When do you Reestablish the Standard?Suggested to revisit standard at least once a year as long a standard is valid it doesn’t need to be modifiedWhen equipment changesWhen method changesWhen work site changes

Selecting the OperatorQualified to do the job

Experienced in the work

Working in a typical environment

Working at an easily maintained pace

Measure the WorkSetting the Standard

It is not an FLSA requirement that three measurements are made but it is advisable to ensure that the Standard is ReproducibleOne measurement or using individuals not familiar enough with the work to be performed is always is risky

Measure the Worker

Measuring Employee Productivity

Measure the WorkerProductivity Time Studies

Initial evaluation-within the first month

Review at least every 6 months

Adjustments to wages made no later than first complete pay period following review

Measure the WorkerProductivity Time Studies

Behavioral factors not permitted in setting hourly pay

Personal time, fatigue, and unavoidable delay (PFD) allowance not required when setting hourly standard

Example Review

Rework

90/10

DOL ResourcesVisit the WHD homepage at: www.dol.gov/dol/esa/public/whd

Field Operators Handbookhttp://www.dol.gov/esa/whd/FOH/index.htm

helpline at 1-866--487-9243

Use the DOL interactive advisor system - www.dol.gov/elaws

TEAM LEADERSNortheast Region: CT, DE, DC, ME, MD, MA, NH, NJ, NY, PA, PR, RI, VA, VI, VT, WV

Maggie MacDonald 617-624-6720

Southeast Region : AL, FL. GA, MS, NC, SC, KY, TNTerri Melnyk 336-547-4232

Southwest Region: AR, CO, LA, MT, NM, ND, OK, SD, TX, UT, WY

Judith Edmondson 713-339-5555 x222

Midwest Region: IA, IL, IN, KS, MI, MN, MO, NE, OH, WIJim Cain 312-596-7196

Western Region: AK, AZ, CA, GU, HI, ID, NV, OR, WA Carolyn Carthen 916-978-4391

CERTIFICATION TEAM STATE ASSIGNMENTS

Gail Arnold (312) 596-7198: CA (business establishments and schools only), C0, DE, DC, FL, GU, IL, IN, IA, KS, ME, NJ, ND, OK, PA, PR, RI, TN, VI, and VA.

Nicole Howard (312) 596-7200: AL, AR, CA (community rehabilitation centers and hospital/residential care facilities only), HI, ID, LA, MD, MI, MO, NE, NV, NH, NC, SC, UT, WA, WV, WI, and WY.

Nancy Madison (312) 596-7202: AK, AZ, CN, GA, KY, MA, MN, MS, MT, NM, NY, OH, OR, SD, TX, and VT.