FR Doc 03-13125

  [Federal Register: May 29, 2003 (Volume 68, Number 103)] [Notices]                [Page 32289-32305] From the Federal Register Online via GPO Access [] [DOCID:fr29my03-184]                            [[Page 32289]]  -----------------------------------------------------------------------  Part IV      Department of Labor      -----------------------------------------------------------------------    Civil Rights Center; Enforcement of Title VI of the Civil Rights Act of  1964; Policy Guidance to Federal Financial Assistance Recipients  Regarding the Title VI Prohibition Against National Origin  Discrimination Affecting Limited English Proficient Persons; Notice   [[Page 32290]]   -----------------------------------------------------------------------  DEPARTMENT OF LABOR  Office of the Secretary    Civil Rights Center; Enforcement of Title VI of the Civil Rights  Act of 1964; Policy Guidance to Federal Financial Assistance Recipients  Regarding the Title VI Prohibition Against National Origin  Discrimination Affecting Limited English Proficient Persons  AGENCY: Office of the Secretary, Labor.  ACTION: Notice of policy guidance with request for comment.  -----------------------------------------------------------------------  SUMMARY: The Department of Labor (DOL) publishes Revised Guidance to  Federal Financial Assistance Recipients Regarding the Title VI  Prohibition Against National Origin Discrimination Affecting Limited  English Proficient Persons (Revised DOL Recipient LEP Guidance). This  Revised DOL Recipient LEP Guidance is issued pursuant to Executive  Order 13166.  DATES: This Guidance is effective immediately. Comments must be  submitted on or before June 30, 2003. DOL will review all comments and  will determine what modifications to the Guidance, if any, are  necessary. This Guidance supplants existing guidance on the same  subject originally published at 66 FR 4596 (January 17, 2001).  ADDRESSES: Interested persons should submit written comments to Ms.  Annabelle T. Lockhart, Director, Civil Rights Center, U.S. Department  of Labor, 200 Constitution Ave., NW., Room N-4123, Washington, DC  20210. Commenters wishing acknowledgment of their comments must submit  them by certified mail, return receipt requested. Please be advised  that mail delivery to federal buildings in the Washington, DC  metropolitan area may experience delays due to concerns about anthrax  contamination. Comments may also be transmitted by facsimile to (202)  693-6505 or by e-mail to FOR FURTHER INFORMATION CONTACT: Annabelle Lockhart or Naomi Barry- Perez at the Civil Rights Center, U.S. Department of Labor, 200  Constitution Ave., NW., Room N-4123, Washington, DC 20210. Telephone:  202-693-6500; TTY: 202-693-6515. Arrangements to receive the Guidance  in an alternative format may be made by contacting the named  individuals.  SUPPLEMENTARY INFORMATION: Under DOL regulations implementing Title VI  of the Civil Rights Act of 1964, 42 U.S.C. 2000d, et seq. (Title VI),  recipients of federal financial assistance have the responsibility to  ensure meaningful access to their programs and activities by persons  with limited English proficiency (LEP). See 29 CFR part 31. Executive  Order 13166, reprinted at 65 FR 50121 (August 16, 2000), directs each  federal agency that extends assistance subject to the requirements of  Title VI to publish guidance for its respective recipients clarifying  that obligation. Executive Order 13166 further directs that all such  guidance documents be consistent with the compliance standards and  framework detailed in the Department of Justice (DOJ) Policy Guidance  entitled ``Enforcement of Title VI of the Civil Rights Act of 1964-- National Origin Discrimination Against Persons with Limited English  Proficiency.'' See 65 FR 50123 (August 16, 2000).     On January 17, 2001, DOL published Guidance on how Title VI of the  Civil Rights Act of 1964, as amended, 42 U.S.C. 2000d, et seq., and its  implementing regulations apply to recipients of DOL financial  assistance in their contact with persons who are limited English  proficient (``LEP Guidance''). See 66 FR 4596. The LEP Guidance also  addressed the responsibilities of recipients under Section 188 of the  Workforce Investment Act, Public Law 105-220, 29 U.S.C. 2938, and its  implementing regulations, which adopt the same prohibition against  national origin discrimination that is found in Title VI. DOL received  extensive comments following the January 17, 2001 publication of the  LEP Guidance.     On March 14, 2002, the Office of Management and Budget (OMB) issued  a Report to Congress titled ``Assessment of the Total Benefits and  Costs of Implementing Executive Order No. 13166: Improving Access to  Services for Persons with Limited English Proficiency.'' Among other  things, the Report recommended the adoption of uniform guidance across  all Federal agencies, with flexibility to permit tailoring to each  agency's specific recipients. Consistent with this OMB recommendation,  DOJ published LEP Guidance for DOJ recipients, which was drafted and  organized to also function as a model for similar guidance documents by  other Federal grant agencies. See 67 FR 41455 (June 18, 2002).     This revised DOL Guidance reflects consideration of comments  received and the additional guidance of DOJ. Following DOJ's direction,  we will again accept public comment and will revise and republish, as  appropriate. Because DOJ has indicated that this Guidance must adhere  to the federal-wide compliance standards and framework detailed in the  model DOJ LEP Guidance issued on June 18, 2002, DOL specifically  solicits comments on the nature, scope and appropriateness of the DOL- specific examples set out in this guidance explaining and/or  highlighting how those consistent federal-wide compliance standards are  applicable to recipients of federal financial assistance through DOL.     The model DOJ LEP guidance includes a section regarding ``safe  harbors'' for written translations of vital material. That section  states:     ``Safe Harbor. Many recipients would like to ensure with greater  certainty that they comply with their obligations to provide written  translations in languages other than English. Paragraphs (a) and (b)  outline the circumstances that can provide a ``safe harbor'' for  recipients regarding the requirements for translation of written  materials. A ``safe harbor'' means that if a recipient provides written  translations under these circumstances, such action will be considered  strong evidence of compliance with the recipient's written-translation  obligations.     The failure to provide written translations under the circumstances  outlined in paragraphs (a) and (b) does not mean there is non- compliance. Rather, they provide a common starting point for recipients  to consider whether and at what point the importance of the service,  benefit, or activity involved; the nature of the information sought;  and the number or proportion of LEP persons served call for written  translations of commonly-used forms into frequently-encountered  languages other than English. Thus, these paragraphs merely provide a  guide for recipients that would like greater certainty of compliance  than can be provided by a fact-intensive, four-factor analysis.      Example: Even if the safe harbors are not used, if written  translation of a certain document(s) would be so burdensome as to  defeat the legitimate objectives of its program, the translation of  the written materials is not necessary. Other ways of providing  meaningful access, such as effective oral interpretation of certain  vital documents, might be acceptable under such circumstances.      Safe Harbor. The following actions will be considered strong  evidence of compliance with the recipient's written-translation  obligations:     (a) The DOJ recipient provides written translations of vital  documents for each eligible LEP language group that constitutes five  percent or 1,000, whichever is less, of the population of persons  eligible to be served or likely to be affected or encountered.  Translation  [[Page 32291]]  of other documents, if needed, can be provided orally; or     (b) If there are fewer than 50 persons in a language group that  reaches the five percent trigger in (a), the recipient does not  translate vital written materials but provides written notice in the  primary language of the LEP language group of the right to receive  competent oral interpretation of those written materials, free of cost.     These safe harbor provisions apply to the translation of written  documents only. They do not affect the requirement to provide  meaningful access to LEP individuals through competent oral  interpreters where oral language services are needed and are  reasonable.     DOL has not included a similar safe harbor provision for  translations in this revised Guidance. The absence of such language is  not intended to detract from or otherwise minimize the underlying  obligation to ensure that LEP persons can access all vital documents.  DOL encourages comments which focus on the applicability of the above  safe harbor to DOL recipients, suggestions of thresholds that may  better reflect DOL's universe of program customers and recipients'  responsibilities, the possible advantages or disadvantages of including  language similar to the model DOJ Guidance, as well as any suggestions  that would ensure the consistency that OMB has recommended while at the  same time ensuring that the Guidance is appropriate for the types of  recipients funded by DOL.     It has been determined that this revised Guidance does not  constitute a regulation subject to the rulemaking requirements of the  Administrative Procedure Act, 5 U.S.C. 553, and is not subject to  Executive Order 12866 (Regulatory Review and Planning, September 30,  1993).      Signed at Washington, DC this 19th of May 2003. Elaine L. Chao, Secretary of Labor.  I. Introduction      Most individuals living in the United States read, write, speak and  understand English. There are many individuals, however, for whom  English is not their primary language. For instance, according to the  2000 census, over 26 million individuals speak Spanish and almost seven  million individuals speak an Asian or Pacific Island language at home.  If these individuals have a limited ability to read, write, speak, or  understand English, they are limited English proficient, or ``LEP.''  While detailed data has not yet been released, the 2000 census  estimates that over 6.6 million Spanish speakers (representing 3.28  percent of U.S. residents over the age of 18) do not speak English  ``well or at all.'' Over 1.2 million people (over the age of 18) who  speak other ``Indo-European'' languages cannot speak English ``well or  at all.'' Over 1.4 million Asian or Pacific Islanders (over the age of  18) speak English ``not well'' or ``not at all.'' In total, more than  10.5 million people claim to speak little or no English, demonstrating  an increase of approximately four million since 1990.     Language for LEP individuals can be a barrier to accessing  important benefits or services, understanding and exercising important  rights, complying with applicable responsibilities, or understanding  other information provided by federally assisted programs and  activities. The federal government provides financial assistance to an  array of services that can be made accessible to otherwise eligible LEP  persons. The federal government is committed to improving the  accessibility of these programs and activities to eligible LEP persons,  a goal that reinforces its equally important commitment to promoting  programs and activities designed to help individuals learn English.  Recipients should not overlook the long-term positive impacts of  incorporating or offering English as a Second Language (ESL) programs  in parallel with language assistance services. ESL courses can serve as  an important adjunct to a proper LEP plan. However, the fact that ESL  classes are made available does not obviate the statutory and  regulatory requirement to provide meaningful access for those who are  not yet English proficient. Recipients of federal financial assistance  have an obligation to reduce language barriers that can preclude  meaningful access by LEP persons to important government services.\1\ ---------------------------------------------------------------------------      \1\ DOL recognizes that many recipients had language assistance  services in place to provide LEP individuals meaningful access to  programs and activities prior to the issuance of Executive Order  13166. This Guidance provides a uniform framework for recipients to  integrate, formalize, and assess the continued vitality of existing  and possibly additional reasonable efforts based on the nature of  the programs or activities, the current needs of the LEP populations  encountered, and prior experience in providing language services in  the communities served. ---------------------------------------------------------------------------      In certain circumstances, failure to ensure that LEP persons can  effectively participate in or benefit from federally assisted programs  and activities may violate the prohibition under Title VI of the Civil  Rights Act of 1964, 42 U.S.C. 2000d, Title VI regulations, and Section  188 of the Workforce Investment Act (WIA) against national origin  discrimination. The purpose of this Guidance is to assist recipients in  fulfilling their responsibilities to provide meaningful access to LEP  persons under existing law. This Guidance clarifies existing legal  requirements for LEP persons by providing a description of the factors  recipients should consider in fulfilling their responsibilities to LEP  persons.\2\ These are the same criteria DOL will use in evaluating  whether recipients are in compliance with Title VI and its implementing  regulations and Section 188 of WIA. ---------------------------------------------------------------------------      \2\ This Guidance is not a regulation but rather a guide.  Accordingly, the examples provided are illustrative and should not  be construed as requirements. Title VI and its implementing  regulations and Section 188 of WIA require that recipients take  reasonable steps to ensure meaningful access by LEP persons. This  Guidance provides an analytical framework that recipients may use to  determine how best to comply with statutory and regulatory  obligations to provide meaningful access to the benefits, services,  information, and other important portions of their programs and  activities for individuals who are limited English proficient. ---------------------------------------------------------------------------      The Department of Justice (DOJ) has a unique role under Executive  Order 13166. The Order charges DOJ with responsibility for providing  guidance to other federal agencies on how to serve LEP individuals and  for ensuring consistency among the agency-specific guidance documents.  Consistency among departments of the federal government is particularly  important. Inconsistency or contradictory guidance could confuse  recipients of federal funds and needlessly increase costs without  rendering the meaningful access for LEP persons that this Guidance and  other federal agency guidance documents are designed to address. As  with most government initiatives, this requires balancing several  principles. While this Guidance discusses that balance in some detail,  it is important to note the basic principles behind that balance.  First, we must ensure that federally assisted programs aimed at the  American public do not leave some behind simply because they face  challenges communicating in English. This is of particular importance  because, in many cases, LEP individuals form a substantial portion of  those encountered in federally assisted programs. Second, we must  achieve this goal while finding constructive methods to reduce the  costs of LEP requirements on small businesses, small local governments,  or small non-profits that receive federal financial assistance.     There are many productive steps that the Federal government, either  collectively or as individual grant agencies, can take to help  recipients  [[Page 32292]]  reduce the costs of language services without sacrificing meaningful  access for LEP persons. Without these steps, certain smaller grantees  may well choose not to participate in federally assisted programs,  threatening the critical functions that the programs strive to provide.  To that end, DOL will continue to provide assistance and guidance in  this important area and will work with recipients of DOL financial  assistance, including state and local workforce agencies, advocacy  groups, and LEP persons, to identify and share model plans, examples of  best practices, and cost-saving approaches. Moreover, DOL intends to  explore how language assistance measures, resources and cost- containment approaches developed with respect to its own federally  conducted programs and activities can be effectively shared or  otherwise made available to recipients, particularly small businesses,  small local governments, and small non-profits. An interagency working  group on LEP has developed a website,, to assist in  disseminating this information to recipients, federal agencies, and the  communities being served.     Some have interpreted the case of Alexander v. Sandoval, 532 U.S.  275 (2001), as impliedly striking down the regulations promulgated  under Title VI that form the basis for the part of Executive Order  13166 that applies to federally assisted programs and activities. DOJ  has taken the position that this is not the case. Accordingly, DOL will  strive to ensure that federally assisted programs and activities work  in a way that is effective for all eligible beneficiaries, including  those with limited English proficiency.  II. Legal Authority      Section 601 of Title VI of the Civil Rights Act of 1964, 42 U.S.C.  2000d, provides that no person shall ``on the ground of race, color, or  national origin, be excluded from participation in, be denied the  benefits of, or be subjected to discrimination under any program or  activity receiving federal financial assistance.'' Section 602  authorizes and directs Federal agencies that are empowered to extend  Federal financial assistance to any program or activity ``to effectuate  the provisions of [section 601] * * * by issuing rules, regulations, or  orders of general applicability.'' 42 U.S.C. 2000d-1.     Department of Labor regulations promulgated pursuant to section 602  forbid recipients from ``utiliz[ing] criteria or methods of  administration which have the effect of subjecting individuals to  discrimination because of their race, color, or national origin, or  have the effect of defeating or substantially impairing accomplishment  of the objectives of the program as respects individuals of a  particular race, color, or national origin.'' 29 CFR 31.3(b)(2).     The Supreme Court, in Lau v. Nichols, 414 U.S. 563 (1974),  interpreted regulations promulgated by the former Department of Health,  Education, and Welfare, including a regulation similar to that of DOL,  45 CFR 80.3(b)(2), to hold that Title VI prohibits conduct that has a  disproportionate effect on LEP persons because such conduct constitutes  national origin discrimination. In Lau, a San Francisco school district  that had a significant number of non-English speaking students of  Chinese origin was required to take reasonable steps to provide the LEP  students with a meaningful opportunity to participate in federally  funded educational programs.     In the DOL context, Section 188 of the Workforce Investment Act  (WIA) provides that no individual shall be excluded from participation  in, denied the benefits of, be subjected to discrimination under, or  denied employment in the administration of or in connection with, any  such program or activity because of race, color, religion, sex (except  as otherwise permitted under Title IX of the Education Amendments of  1972), national origin, age, political affiliation or belief, status as  a qualified individual with disabilities or specified noncitizenship  statuses (e.g., lawfully admitted resident aliens).     The regulations implementing the nondiscrimination and equal  opportunity provisions of Section 188 specifically address national  origin discrimination and language access. Where ``a significant number  or proportion of the population eligible to be served, or likely to be  directly affected, by a WIA Title I-assisted program or activity may  need services or information in a language other than English in order  to be effectively informed about, or able to participate in, the  program or activity,'' the Section 188 regulations require recipients  ``to take reasonable steps to provide services and information in  appropriate languages.'' 29 CFR 37.35(a). Even where there is not a  ``significant'' number or proportion of LEP persons in the community  serviced by the recipient, recipients nonetheless are required to  ``make reasonable efforts to meet the particularized language needs of  limited-English speaking individuals who seek services or information  from the recipient.'' 29 CFR 37.35(b). This means that, for instance,  when the LEP population in the community serviced by a recipient does  not comprise a ``significant'' number or proportion, recipients should  still balance the four factors described herein to determine what steps  are reasonable to meet the particularized language needs of those  seeking services or information.     The regulations implementing Section 188 require the Governor of  every state recipient of WIA-Title I financial assistance to establish  and adhere to a Methods of Administration (``MOA''). Further, the  regulations require that MOAs include a description of how the state  programs and recipients have satisfied the specified requirements of  the Section 188 implementing regulations, including the obligation to  provide services and information in appropriate languages under the  circumstances outlined in 29 CFR 37.35. Although the regulatory  language differs, the obligations of recipients to provide  accessibility by LEP persons to DOL financially assisted programs and  activities are the same under Title VI and Section 188.     On August 11, 2000, Executive Order 13166 was issued. ``Improving  Access to Services for Persons with Limited English Proficiency,'' 65  FR 50121 (August 16, 2000). Under that Order, every federal agency that  provides financial assistance to non-federal entities must publish  guidance on how their recipients can provide meaningful access to LEP  persons and thus comply with the Title VI regulations forbidding  funding recipients from ``restrict[ing] an individual in any way in the  enjoyment of any advantage or privilege enjoyed by others receiving any  service, financial aid, or other benefit under the program'' or from  ``utiliz[ing] criteria or methods of administration which have the  effect of subjecting individuals to discrimination because of their  race, color, or national origin, or have the effect of defeating or  substantially impairing accomplishment of the objectives of the program  as respects individuals of a particular race, color, or national  origin.''     On that same day, DOJ issued a general guidance document addressed  to ``Executive Agency Civil Rights Officers'' setting forth broad  principles for agencies to apply in developing guidance documents for  recipients pursuant to the Executive Order. ``Enforcement of Title VI  of the Civil Rights Act of 1964 National Origin Discrimination Against  Persons With Limited English Proficiency,'' 65 FR 50123 (August 16,  2000) (``DOJ LEP Guidance'').  [[Page 32293]]      Subsequently, federal agencies raised questions regarding the  requirements of the Executive Order, especially in light of the Supreme  Court's decision in Alexander v. Sandoval, 532 U.S. 275 (2001). On  October 26, 2001, Ralph F. Boyd, Jr., Assistant Attorney General for  DOJ's Civil Rights Division, issued a memorandum for ``Heads of  Departments and Agencies, General Counsels and Civil Rights  Directors,'' which clarified and reaffirmed the DOJ LEP Guidance in  light of Sandoval.\3\ The Assistant Attorney General stated that  because Sandoval did not invalidate any Title VI regulations that  proscribe conduct that has a disparate impact on covered groups--the  type of regulations that form the legal basis for the part of Executive  Order 13166 that applies to federally assisted programs and  activities--the Executive Order remains in force. ---------------------------------------------------------------------------      \3\ The DOJ memorandum noted that some commentators have  interpreted Sandoval as impliedly striking down the disparate-impact  regulations promulgated under Title VI that form the basis for the  part of Executive Order 13166 that applies to federally assisted  programs and activities. See, e.g., Sandoval, 532 U.S. at 286, 286  n.6 (``[W]e assume for purposes of this decision that section 602  confers the authority to promulgate disparate-impact regulations; *  * * We cannot help observing, however, how strange it is to say that  disparate-impact regulations are `inspired by, at the service of,  and inseparably intertwined with' Sec. 601* * * when Sec. 601  permits the very behavior that the regulations forbid.''). The  memorandum, however, made clear that DOJ disagreed with the  commentators' interpretation. Sandoval holds principally that there  is no private right of action to enforce Title VI disparate-impact  regulations. It did not address the validity of those regulations or  Executive Order 13166 or otherwise limit the authority and  responsibility of federal grant agencies to enforce their own  implementing regulations. ---------------------------------------------------------------------------      Pursuant to Executive Order 13166, DOL developed its own guidance  document for recipients, which was initially issued on January 17,  2001. ``Guidance on Improving Access to Services for Persons with  Limited English Proficiency,'' 66 FR 4596 (January 17, 2001) (DOL LEP  Guidance). This Proposed Revised Guidance is thus published pursuant to  Executive Order 13166 in light of the Assistant Attorney General Boyd's  October 26, 2001 clarifying memorandum.  III. Who Is Covered?      Department of Labor regulations, 29 CFR part 31, require all  recipients of federal financial assistance from DOL to provide  meaningful access to LEP persons.\4\ Federal financial assistance  includes grants, training, use of equipment, donations of surplus  property, and other assistance. Recipients of DOL assistance include,  for example: ---------------------------------------------------------------------------      \4\ Pursuant to Executive Order 13166, the meaningful access  requirement of the Title VI regulations and the four-factor analysis  set forth in the DOJ LEP Guidance are to additionally apply to the  programs and activities of federal agencies, including the  Department of Labor. ---------------------------------------------------------------------------      [sbull] State-level agencies that administer, or are financed in  whole or in part with, WIA Title I funds;     [sbull] State Workforce Agencies;     [sbull] State and local Workforce Investment Boards;     [sbull] Local workforce investment areas (``local areas'') grant  recipients;     [sbull] One-Stop Career Center operators;     [sbull] Service providers, including eligible training providers  and youth service providers;     [sbull] On-the-Job Training (OJT) employers;     [sbull] Job Corps contractors and center operators;     [sbull] Job Corps national training contractors;     [sbull] Outreach and admissions agencies, including Job Corps  contractors that perform these functions; and     [sbull] Other national program recipients.     Subrecipients likewise are covered when federal funds are passed  through from one recipient to a subrecipient. This Guidance does not  create any new requirements for community colleges and other  educational institutions that receive federal financial assistance  under the Higher Education Act as these institutions must already  comply with Title VI requirements.     Pursuant to the Civil Rights Restoration Act of 1987 (CRRA),  coverage extends to a recipient's entire program or activity, i.e., to  all parts of a recipient's operations. This is true even if only one  part of the recipient receives the federal assistance.\5\      \5\ However, if a federal agency were to decide to terminate  federal funds based on noncompliance with Title VI or its  regulations, only funds directed to the particular program or  activity that is out of compliance would be terminated. 42 U.S.C.  2000d-1.      Example: DOL provides assistance to a state department of labor  to support the development of the state's One-Stop Career System.  While the funds may be administered by one agency within the state  department, Title VI applies to all of the operations of the entire  state department of labor--not just the One-Stop Career delivery  system.\6\ ---------------------------------------------------------------------------      \6\ The nondiscrimination and equal opportunity provisions of  WIA and its implementing regulations apply to programs and  activities that are part of the One-Stop Career System and that are  operated by the One-Stop Career System partners listed in section  121(b) of WIA (29 U.S.C. 2841(b)), to the extent that the programs  and activities are being conducted as part of the One-Stop Career  System. When a One-Stop Career System partner receives federal  financial assistance from an Executive agency other than DOL, such  as the Department of Education, Health and Human Services,  Agriculture or Housing and Urban Development, the grant-making  agency enforces the recipient's Title VI obligation. Therefore, when  a One-Stop Career System partner receives federal financial  assistance from an agency other than DOL, the partner should follow  the LEP guidance issued by that agency, to the extent that such  guidance exists. If LEP guidance has not been issued by the grant- making agency, or if that guidance does not address the activities  of the One-Stop Career partner, the One-Stop Career partner should  follow this Guidance until such time as the grant-making agency  issues LEP guidance. ---------------------------------------------------------------------------      Finally, some recipients operate in localities in which English has  been declared the official language. Nonetheless, these recipients  continue to be subject to federal non-discrimination requirements,  including those applicable to the provision of federally assisted  services to persons with limited English proficiency.  IV. Who Is a Limited English Proficient Individual?      Individuals who do not speak English as their primary language and  who have a limited ability to read, write, speak, or understand English  can be limited English proficient, or ``LEP,'' and entitled to language  assistance with respect to a particular type of service, benefit, or  encounter.     Examples of populations likely to include LEP persons who are  encountered and/or served by DOL recipients and should be considered  when planning language services include, but are not limited to:     [sbull] Unemployed and/or dislocated individuals seeking  unemployment insurance (UI), job search and/or job training services.     [sbull] Workers, such as those doing construction or working in  mines, who receive training from Occupational Safety and Health or Mine  Safety and Health training providers.     [sbull] Youth looking for summer employment, academic and career  exploration or vocational training and employment opportunities, such  as participation in Job Corps, and their parents or family members.     [sbull] Migrant and seasonal agricultural workers seeking placement  and/or information on protections afforded to them in this work.     [sbull] Workers seeking information or enforcement from a recipient  regarding wage and hour and safety and health laws.  V. How Does a Recipient Determine the Extent of Its Obligation To  Provide LEP Services?      Recipients are required to take reasonable steps to ensure  meaningful access to their programs and activities by LEP persons.  While designed to be a flexible and fact-dependent standard, the  starting point is an individualized  [[Page 32294]]  assessment that balances the following four factors: (1) The number or  proportion of LEP persons served or encountered in the eligible service  population; (2) the frequency with which LEP individuals come in  contact with the program; (3) the nature and importance of the program,  activity, or service provided by the recipient; and (4) the resources  available to the recipient and costs. As indicated above, the intent of  this Guidance is to suggest a balance that ensures meaningful access by  LEP persons to critical services while not imposing undue burdens on  small businesses, small local governments, or small non-profits.     After applying the above four-factor analysis, a recipient may  conclude that different language assistance measures are sufficient for  the different types of programs or activities in which it engages. For  instance, some of a recipient's activities will be more important than  others and/or have greater impact on or contact with LEP persons, and  thus may require more in the way of language assistance. The  flexibility that recipients have in addressing the needs of the LEP  populations they serve does not diminish, and should not be used to  minimize, the obligation that those needs be addressed. DOL recipients  should apply the four factors to the various kinds of contacts that  they have with the public to assess language needs and decide what  reasonable steps should be taken to ensure meaningful access for LEP  persons.  (1) The Number or Proportion of LEP Persons Served or Encountered in  the Eligible Service Population      One factor in determining what language services recipients should  provide is the number or proportion of LEP persons from a particular  language group served or encountered in the eligible service  population. The greater the number or proportion of these LEP persons,  the more likely language services are needed. Ordinarily, persons  ``eligible to be served, or likely to be directly affected, by'' a  recipient's program or activity, 29 CFR 37.35(a), are those who are  served or encountered in the eligible service population. This  population will be program-specific, and includes persons who are in  the geographic area that has been approved by a federal grant agency as  the recipient's service area. However, where, for instance, a recipient  serves a large LEP population, the appropriate service area is most  likely determined by considering local service areas and not the entire  population served by the recipient. This, for example, could occur in a  local workforce investment area (local area) that manages more than a  single One-Stop Career Center. Instead of being guided by a population  survey for the local area, each One-Stop Career Center may wish to  assess its local service population.     We suggest that states operating statewide programs, such as the  Unemployment Insurance program or Workforce Investment Act programs,  assess statewide language groups to identify potentially significant  LEP populations, and ensure that local offices conduct similar surveys  of their local service populations. Small entities, such as Vermont,  Delaware, and the District of Columbia, that operate only a single  local workforce investment area, should assess their overall  populations with an awareness of any ``pockets'' of LEP persons that  may exist in certain areas (e.g., the Chinatown or Adams Morgan  (largely Spanish-speaking) areas of Washington, DC). Where no service  area has previously been approved, the relevant service area may be  that which is approved by state or local authorities or designated by  the recipient itself, provided that these designations do not  themselves discriminatorily exclude certain populations. For most  workforce investment services, the target audience is defined in  geographic rather than programmatic terms. However, some services may  be targeted to reach a particular audience (e.g., out-of-school youth  or migrant/seasonal farmworkers). The attached Appendix provides  examples to assist in determining the eligible service population. When  considering the number or proportion of LEP individuals in a service  area, recipients should consider LEP parent(s) when their English- proficient or LEP minor children and dependents encounter the workforce  system, including youth employment and training programs and Job Corps.     In assessing the number or proportion of LEP persons eligible to be  served or likely to be encountered, recipients should first examine  their prior experiences with LEP encounters and determine the breadth  and scope of language services that have been needed. In conducting  this analysis, it is important to include language minority populations  that are eligible for programs or activities but may have been  underserved because of existing language barriers. Other data should be  consulted to refine or validate a recipient's prior experience,  including the latest census data for the area served, data from school  systems and from community organizations, and data from state and local  governments.\7\ Community agencies, school systems, faith-based  organizations, legal aid entities, and others can often assist in  identifying populations for whom outreach is needed and who would  benefit from recipients' programs and activities where language  services are provided. ---------------------------------------------------------------------------      \7\ The focus of the analysis is on lack of English proficiency,  not the ability to speak more than one language. Note that  demographic data may indicate the most frequently spoken languages  other than English as well as the percentage of people who speak  other languages and who speak or understand English less than well.  Some of the most commonly spoken languages other than English may be  spoken by people who are also overwhelmingly proficient in English.  Thus, they may not be the languages spoken most frequently by  limited English proficient individuals. When using demographic data,  it is important to focus on the languages spoken by those who are  not proficient in English. ---------------------------------------------------------------------------  (2) The Frequency With Which LEP Individuals Come in Contact With the  Program      Recipients should assess, as accurately as possible, the frequency  with which they have or should have contact with LEP individuals from  potential language groups seeking assistance. The more frequent the  contact with a particular language group, the more likely that enhanced  language services in that language are needed. The steps that are  reasonable for a recipient that serves a LEP person on a one-time basis  will be very different than those expected from a recipient that serves  LEP persons daily. It is also advisable to consider the frequency of  different types of language contacts. For example, frequent contacts  with Spanish-speaking people who are LEP may require certain assistance  in Spanish. Less frequent contact with different language groups may  suggest a different and less intensified solution. If a LEP individual  accesses a program or service on a daily basis, a recipient has greater  duties than if the same individual's program or activity contact is  unpredictable or infrequent. But even recipients that serve LEP persons  on an unpredictable or infrequent basis should use this balancing  analysis to determine what to do if a LEP individual seeks services  under the program in question. This plan need not be intricate. It may  be as simple as being prepared to use one of the commercially-available  telephonic interpretation services to obtain immediate interpreter  services. In applying this standard, recipients should take care to  consider whether appropriate outreach to LEP persons could increase the  frequency of contact with LEP language groups and therefore  [[Page 32295]]  also increase the demand for language assistance from these LEP  populations.  (3) The Nature and Importance of the Program, Activity, or Service  Provided by the Recipient      The more important the activity, information, service, or program,  or the greater the possible consequences of the contact to LEP  individuals, the more likely language services are needed. For example,  the requirements for filing a claim for Unemployment Insurance or Trade  Adjustment Assistance or safety and health information in the context  of Occupational Safety and Health or Mine Safety and Health training  programs must be effectively communicated. A recipient needs to  determine whether denial or delay of access to services or information  could have serious or even life-threatening implications for a LEP  individual. Decisions by a federal, state, or local entity to make an  activity compulsory, such as job training and/or job search  certification in the Unemployment Insurance program, can also serve as  strong evidence of the program's importance.     Title VI does not require recipients to remove language barriers  when English is an essential aspect of the program (such as providing  civil service examinations in English when the job requires a person to  communicate in English, see Frontera v. Sindell, 522 F.2d 1215 (6th  Cir. 1975)), or when there is another non-pretextual ``substantial  legitimate justification for the challenged practice'' and there is no  comparably effective alternative practice with less discriminatory  affects. Elston v. Talladega County Bd. of Educ., 997 F.2d 1394, 1407  (11th Cir. 1993); New York City Environmental Alliance v. Giuliani, 214  F.3d 65, 72 (2nd Cir. 2000) (plaintiffs failed to show less  discriminatory options available to accomplish defendant city's  legitimate goal of building new housing and fostering urban renewal).  However, DOL recipients are providing a service to assist individuals  in employment, and should consider that LEP individuals can be learning  English and another skill at the same time.\8\ For example, a recipient  may not need to make accessible certain health care practitioner  courses to LEP persons if the ability to be fully proficient in English  is a legitimate requirement of such training and the recipient has made  a legitimate determination that a LEP person would not be eligible to  work in the field in the local job market and at the level for which  the training is targeted. However, in order for such determinations to  be legitimate, recipients should conduct an objective analysis and not  rely on stereotypes or anecdotal evidence regarding level of English  proficiency required for such employment, and should consider the  impact that participation in English-as-a-Second-Language courses may  have on the ability of the LEP person to utilize the training. ---------------------------------------------------------------------------      \8\ Consistent with footnote 2, supra, a consideration of this  factor should not be construed as requiring DOL recipients to create  new programs under this Guidance. ---------------------------------------------------------------------------  (4) The Resources Available to the Recipient and Costs      A recipient's level of resources and the costs that would be  imposed on it may have an impact on the nature of the steps it should  take in providing language services. Smaller recipients with more  limited budgets are not expected to provide the same level of language  services as are larger recipients with larger budgets. In addition,  ``reasonable steps'' may cease to be reasonable when the costs imposed  substantially exceed the benefits. DOL has determined that costs  associated with providing meaningful access to LEP persons are  considered allowable program costs. This is consistent with the  discussion of administrative and program costs under Title I of WIA  found in 20 CFR 667.220.     Resource and cost issues, however, can often be reduced by  technological advances; the sharing of language assistance materials  and services among and between recipients, advocacy groups, and federal  grant agencies; and reasonable business practices. Where appropriate,  training bilingual staff to act as interpreters and translators,  information sharing through industry groups, telephonic and video  conferencing interpretation services, pooling resources and  standardizing documents to reduce translation needs, using qualified  translators and interpreters to ensure that documents need not be  ``fixed'' later and that inaccurate interpretations do not cause delay  or other costs, centralizing interpreter and translator services to  achieve economies of scale; or, the formalized use of qualified  community volunteers, for example, may help reduce costs.\9\ Recipients  should carefully explore the most cost-effective means of delivering  competent and accurate language services before limiting services due  to resource concerns. Large entities and those entities serving a  significant number or proportion of LEP persons should ensure that  their resource limitations are well-substantiated before using this  factor as a reason to limit language assistance. Such recipients may  find it useful to be able to articulate, through documentation or in  some other reasonable manner, the process used for determining that  language services would be limited based on resources or costs. ---------------------------------------------------------------------------      \9\ Small recipients with limited resources may find that  entering into a bulk telephonic interpretation service contract will  prove cost effective. ---------------------------------------------------------------------------      This four-factor analysis necessarily implicates the ``mix'' of LEP  services required. Recipients have two main ways to provide language  services: Oral interpretation either in person or via a telephone  interpretation service (hereinafter ``interpretation'') and written  translation (hereinafter ``translation''). Oral interpretation can  range from on-site interpreters for critical services provided to a  high volume of LEP persons to access through commercially-available  telephonic interpretation services. Written translation, likewise, can  range from translation of an entire document to translation of a short  description of the document. In some cases, language services should be  made available on an expedited basis while in others the LEP individual  may be referred to another office of the recipient for language  assistance.     The correct mix should be based on what is both necessary and  reasonable in light of the four-factor analysis. For instance, a One- Stop Career Center in a largely Hispanic neighborhood may need  immediate oral interpreters available and should give serious  consideration to hiring some bilingual staff. (Of course, many  recipients have already made such arrangements.) There may be  circumstances where the importance and nature of the activity and  number or proportion and frequency of contact with LEP persons may be  low and the costs and resources needed to provide language services may  be high.  VI. Selecting Language Assistance Services      Regardless of the type of language service provided, for both oral  and written language services, quality and accuracy of the language  service is critical in order to avoid serious consequences to the LEP  person and to the recipient.  A. Oral Language Services (Interpretation)      Interpretation is the act of listening to something in one language  (source language) and orally translating it into another language  (target language).  [[Page 32296]]  Where interpretation is needed and is reasonable, recipients should  consider some or all of the options discussed below for providing  competent interpreters in a timely manner.     Competence of Interpreters. When providing oral assistance,  recipients should ensure competency of the language service providers,  no matter which of the following strategies are used. Competency  requires more than self-identification as bilingual. Some bilingual  staff and community volunteers, for instance, may be able to  communicate effectively in a language other than English when  communicating information directly in that language, but may not be  competent to interpret in and out of English. Likewise, they may not be  able to do written translations.     Competency to interpret, however, does not necessarily mean formal  certification as an interpreter, although certification is helpful.  When using interpreters, recipients should ensure that interpreters:     [sbull] Demonstrate proficiency and ability to communicate  information accurately in both English and in the other language and be  able to identify and employ the appropriate mode of interpreting (e.g.,  consecutive, simultaneous, summarization, or sight translation); \10\ ---------------------------------------------------------------------------      \10\ Consecutive interpretation is interpretation of sentences/ phrases immediately after they are spoken, where the original  speaker interrupts the presentation to permit the interpretation.  Simultaneous interpretation (sometimes referred to as UN-type  translations) involves interpretation occurring at the same time as  the original spoken text, where the original speaker does not stop  or interrupt their presentation to permit the interpretation.  Summarization involves an interpreter listening to the original  speaker in another language and then summarizing the essence of what  was said, not what was actually said. Summary interpretations are  generally disfavored by professional interpreters or translators.  Sight translation involves the translation of written text/documents  into spoken text based on a visual review of the original form. ---------------------------------------------------------------------------      [sbull] Have knowledge in both languages of any specialized terms  or concepts peculiar to the recipient's program or activity and of any  particularized vocabulary and phraseology used by the LEP person; \11\ ---------------------------------------------------------------------------      \11\ Many languages have ``regionalisms,'' or differences in  usage. For instance, a word that may be understood to mean something  in Spanish for someone from Cuba may not be so understood by someone  from Mexico. In addition, because there may be languages that do not  have an appropriate direct interpretation of some programmatic or  legal terms, the interpreter should be so aware and be able to  provide the most effective interpretation. The interpreter should  likely make the recipient aware of such an issue so that the  interpreter and the recipient can then develop a consistent and  appropriate set of descriptions of these terms in the target  language that can be used in future encounters. ---------------------------------------------------------------------------      [sbull] Understand and follow confidentiality and impartiality  rules to the same extent the recipient employee for whom they are  interpreting and/or to the extent their position requires; and     [sbull] Understand and adhere to their role as interpreters without  deviating into a role as counselor, legal advisor, or other roles  (particularly in administrative hearings, such as UI appeals hearings).     Some recipients, such as those that conduct administrative  hearings, may have additional self-imposed requirements for  interpreters. Where individual rights depend on precise, complete, and  accurate interpretation or translations, particularly in the context of  administrative hearings, the use of certified interpreters is strongly  encouraged.\12\ Where such proceedings are lengthy, the interpreter  will likely need breaks and team interpreting may be appropriate to  ensure accuracy and to prevent errors caused by mental fatigue of  interpreters. ---------------------------------------------------------------------------      \12\ For those languages in which no formal accreditation or  certification currently exists, recipients should consider a formal  process for establishing the credentials of the interpreter. ---------------------------------------------------------------------------      The quality and accuracy of language services is part of the  appropriate analysis of LEP services required. For example, the quality  and accuracy of language services in a UI appeals hearing or safety and  health training, for example, must be extraordinarily high, while the  quality and accuracy of language services in providing optional career  planning tools, such as ``tests'' that evaluate the type or style of  work for which a person might be suited, need to be accurately  translated, but may not need to meet the same exacting standards.     Finally, when interpretation is needed and is reasonable, it should  be provided in a timely manner. To be meaningfully effective, language  assistance should be timely. While there is no single definition for  ``timely'' that is applicable to all types of interactions at all times  by all recipients, one clear guide is that the language assistance  should be provided at a time and place that avoids the effective denial  or the imposition of an undue burden on or delay in important rights,  benefits, or services to the LEP person. For example, when the  timeliness of services is important, such as with certain activities of  DOL recipients providing income security, health, and safety services,  and when important programmatic rights, such as eligibility for UI  benefits, are at issue, a recipient would likely not be providing  meaningful access if it had one bilingual staff person available one  day a week to provide the service. Such conduct would likely result in  delays for LEP persons that would be significantly greater than those  for English proficient persons. Conversely, where access to or exercise  of a service, benefit, or right is not effectively precluded by a  reasonable delay, language assistance can likely be delayed for a  reasonable period.     Hiring Bilingual Staff. When particular languages are encountered  often, hiring bilingual staff offers one of the best, and often most  economical, options. Recipients can, for example, fill public contact  positions, such as One-Stop Career Center receptionists or UI claims  examiners, with staff who are bilingual and competent to communicate  directly with LEP persons in the appropriate language. If bilingual  staff is also used to interpret between English speakers and LEP  persons, or to orally interpret written documents from English into  another language, they should be competent in the skill of  interpreting. Being bilingual does not necessarily mean that a person  has the ability to interpret. In addition, there may be times when the  role of the bilingual employee may conflict with the role of an  interpreter (for instance, a bilingual hearings examiner would probably  not be able to perform effectively the role of an administrative  hearing interpreter and hearings examiner at the same time, even if the  hearings examiner were a qualified interpreter). Effective management  strategies, including any appropriate adjustments in assignments and  protocols for using bilingual staff, can ensure that bilingual staff is  fully and appropriately utilized. When an analysis of the four factors  leads to a conclusion that the provision of services through bilingual  staff is not a reasonable step, the recipient still should consider  other options for providing meaningful access to LEP persons.     Hiring Staff Interpreters. Hiring interpreters may be most helpful  where there is a frequent need for interpreting services in one or more  languages. Depending on the facts, sometimes it may be necessary and  reasonable to provide on-site interpreters to communicate effectively  with LEP persons.     Contracting for Interpreters. Contract interpreters may be a cost- effective option when there is no regular need for a particular  language skill. In addition to commercial and other private providers,  many community-based organizations provide interpretation services for  particular languages. Contracting with and providing training regarding  the recipient's programs and  [[Page 32297]]  processes to these organizations can be a cost-effective option for  providing language services to LEP persons from those language groups.     Using Telephone Interpreter Lines. Telephone interpreter service  lines often offer speedy interpreting assistance in many different  languages. They may be particularly appropriate where the mode of  communicating with an English proficient person would also occur over  the phone. Although telephonic interpretation services are useful in  many situations, it is important to ensure that, when using such  services, the interpreters are competent to interpret any technical or  legal terms specific to a particular program that may be important to  the conversation. Nuances in language and non-verbal communication can  often assist an interpreter and cannot be recognized over the phone.  Video teleconferencing may sometimes help to resolve this issue. In  addition, where documents are being discussed, it is important to give  telephonic interpreters adequate opportunity to review the documents  prior to the discussion. Any other logistical problems should also be  anticipated.     Using Community Volunteers. In addition to consideration of  bilingual staff, staff interpreters, or contract interpreters (either  in-person or by telephone) as options to ensure meaningful access by  LEP persons, use of recipient-coordinated community volunteers, working  with, for instance, community-based organizations may provide a cost- effective supplemental language assistance strategy under appropriate  circumstances. They may be particularly useful in providing language  access for a recipient's less critical programs and activities. To the  extent the recipient relies on community volunteers, it is often best  to use volunteers who are trained in the information or services of the  program and can communicate directly with LEP persons in their  language. Just as with all interpreters, community volunteers used to  interpret between English speakers and LEP persons, or to orally  translate documents, should be competent in the skill of interpreting  and knowledgeable about applicable confidentiality and impartiality  rules. Recipients should consider formal arrangements with community- based organizations that provide volunteers to address these concerns  and to help ensure that services are available on a regular basis.     Use of Family Members, Friends, or Other Community Members as  Interpreters. Although recipients should not plan to rely on a LEP  person's family members, friends, or other informal interpreters to  provide language assistance services to important programs and  activities, where LEP persons so desire, they should be permitted to  use, at their own expense, interpreters of their own choosing (whether  a professional interpreter, family member, friend, or other informal  interpreter) in place of or as a supplement to the free language  services expressly offered by the recipient. LEP persons may feel more  comfortable when a trusted family member, friend, or other community  member acts as an interpreter. In addition, in exigent circumstances  that are not reasonably foreseeable, temporary use of interpreters not  provided by the recipient may be necessary. However, with proper  planning and implementation, recipients should be able to avoid most of  these situations.     Recipients, however, should take special care to ensure that  family, friends, and other informal interpreters are appropriate in  light of the circumstances and subject matter of the program, service  or activity. The recipients' own interests in accurate interpretation  should also be considered when deciding whether family, friends, and  other informal interpreters are appropriate. In many circumstances,  family members (especially children), friends, or other informal  interpreters are not competent to provide quality and accurate  interpretations. Issues of confidentiality, privacy, or conflict of  interest may also arise. LEP individuals may feel uncomfortable  revealing or describing sensitive, confidential, or potentially  embarrassing family, employment history, or financial information to a  family member, friend, or member of the local community. For these  reasons, when oral language services are necessary, recipients should  generally offer competent interpreter services free of cost to the LEP  person. While issues of competency, confidentiality, and conflict of  interest in the use of family members (especially children), friends,  or other informal interpreters often make their use inappropriate, the  use of these individuals as interpreters may be an appropriate option  where proper application of the four factors would lead to a conclusion  that recipient-provided services are not necessary. An example of this  is an optional ``Dress for Success'' workshop offered by a One-Stop  Career Center where there is such a small number and/or proportion of  LEP persons eligible to be served and there is no available bilingual  staff, volunteers, or interpreters available. There, the importance and  nature of the activity may be relatively low and unlikely to implicate  issues of confidentiality, conflict of interest, or the need for  accuracy. In addition, the resources needed and costs of providing  language services may be high. In such a setting, a LEP person's use of  family, friends, or others may be appropriate.     If a LEP person voluntarily chooses to provide his or her own  interpreter, a recipient should consider whether a record of that  choice and of the recipient's offer of assistance should be kept. Where  precise, complete, and accurate interpretations or translations of  information and/or testimony are critical for adjudicatory or legal  reasons, or where the competency of the LEP person's interpreter is not  established, a recipient might decide to provide its own, independent  interpreter, even if a LEP person wants to use his or her own  interpreter as well. Extra caution should be exercised when the LEP  person chooses to use a minor as the interpreter. While the LEP  person's decision should be respected, there may be additional issues  of competency, confidentiality, or conflict of interest when the choice  involves using children to interpret. The recipient should take care to  ensure that the LEP person's choice is voluntary, that the LEP person  is aware of the possible problems if the preferred interpreter is a  minor child, and that the LEP person knows that a competent interpreter  could be provided by the recipient at no cost.  B. Written Language Services (Translation)      Translation is the replacement of a written text from one language  (source language) into an equivalent written text in another language  (target language).     What Documents Should be Translated? After applying the four-factor  analysis, a recipient may determine that an effective LEP plan for its  particular program or activity includes the translation of vital  written materials into the language of each frequently-encountered LEP  group eligible to be served and/or likely to be affected by the  recipient's program. Such written materials could include:     [sbull] Applications to participate in a recipient's program or  activity or to receive recipient benefits or services;     [sbull] Written tests that do not assess English language  competency, but test competency for a particular license, job,  [[Page 32298]]  or skill for which English language proficiency is not required; \13\ ---------------------------------------------------------------------------      \13\ Test translation raises technical testing issues and needs  to be done in an appropriate manner if the test is to retain  validity and reliability. Some tests are available in different  languages. For example, the GED is available in Spanish and French,  as well as English. So recipients may be able to check for the  availability of tests in other languages from the test developer.  Where no test is available in a language and translation is not  immediately possible, it might be more appropriate to evaluate a LEP  individual with another test or procedure that does not  inappropriately implicate their limited English skills. ---------------------------------------------------------------------------      [sbull] Consent and complaint forms;     [sbull] List of partners at a One-Stop Career Center and services  provided;     [sbull] Letters containing important information regarding  participation in a program or activity;     [sbull] Notices pertaining to the reduction, denial or termination  of services or benefits and of the right to appeal such actions;     [sbull] Notices that require a response from beneficiaries;     [sbull] Information on the right to file complaints of  discrimination;     [sbull] Information on the provision of services to individuals  with disabilities;     [sbull] State wage and hour and safety and health enforcement and  information materials;     [sbull] Notices advising LEP persons of the availability of free  language assistance; and     [sbull] Other outreach materials.     Whether or not a document (or the information it provides and/or  solicits) is ``vital'' may depend upon the importance of the program,  information, encounter, or service involved, and the consequence to the  LEP person if the information in question is not provided accurately or  in a timely manner. For instance, a description of books contained in  the resource room of a One-Stop Career Center would not generally be  considered vital, whereas applications for Unemployment Insurance or  information about safety and health requirements could be considered  vital. Where appropriate, recipients are encouraged to create a plan  for consistently determining, over time and across its various  activities, what documents are ``vital'' to the meaningful access of  the LEP populations they serve.     Classifying a document as vital or non-vital is sometimes  difficult, especially in the case of outreach materials like brochures  or other information on rights and services. Awareness of rights or  services is an important part of ``meaningful access.'' Lack of  awareness that a particular program, right, or service exists may  effectively deny LEP individuals meaningful access. Thus, where a  recipient is engaged in community outreach activities in furtherance of  its programs or services, it should regularly assess the needs of the  populations frequently encountered or affected by the program or  service to determine whether certain critical outreach materials should  be translated. Community organizations may be helpful in determining  what outreach materials may be most helpful to translate. In addition,  the recipient should consider whether translations of outreach material  may be made more effective when done in tandem with other outreach  methods, including utilizing the ethnic media, schools, faith-based and  other community organizations to spread the message.     Sometimes a document includes both vital and non-vital information.  This may be the case when the document is very large. It may also be  the case when the title and a phone number for obtaining more  information on the contents of the document in frequently-encountered  languages other than English is critical, but the document is sent out  to the general public and cannot reasonably be translated into many  languages. Thus, vital information may include, for instance, the  provision of information in appropriate languages other than English  regarding where a LEP person might obtain an interpretation or  translation of the document.     Into What Languages Should Documents be Translated? The languages  spoken by the LEP individuals with whom the recipient has contact  determine the languages into which vital documents should be  translated. A distinction should be made, however, between languages  that are frequently encountered by a recipient and less commonly- encountered languages. Many recipients serve communities in large  cities or across the country or operate web-based, self-service systems  as an adjunct to their in-person delivery systems that also have a  regional or national reach. They regularly serve LEP persons who speak  dozens and sometimes over 100 different languages. To translate all  written materials into all of those languages is unrealistic. Although  recent technological advances have made it easier for recipients to  store and share translated documents, such an undertaking would incur  substantial costs and require substantial resources. Nevertheless,  well-substantiated claims of lack of resources to translate all vital  documents into dozens of languages do not necessarily relieve a  recipient of the obligation to translate those documents into at least  several of the more frequently-encountered languages and to set  benchmarks for continued translations into the remaining languages over  time. As a result, the extent of a recipient's obligation to provide  written translations of documents should be determined by the recipient  on a case-by-case basis, looking at the totality of the circumstances  in light of the four-factor analysis. Because translation is a one-time  expense, consideration should be given to whether the upfront cost of  translating a document (as opposed to oral interpretation) should be  amortized over the likely lifespan of the document when applying this  four-factor analysis. The length of a document's lifespan and the  volume of new documents requiring translation may also be a factor in  this determination. For example, in transaction-based self-service  websites, such as labor exchange/job matching, the lifespan of a  typical document such as a job order may only be 30 days and the volume  of such documents may easily number 1,000 or more each day. In such  circumstances, depending on the four factors, recipients might consider  translating only certain portions of such documents and/or providing  information in appropriate languages on how to obtain free language  assistance, if the technology allows.     Competence of Translators. As with oral interpreters, translators  of written documents should be competent. Many of the same  considerations apply. However, the skill of translating is very  different from the skill of interpreting, and a person who is a  competent interpreter may or may not be competent to translate.     Particularly where vital documents are being translated, competence  can often be achieved by use of certified translators. Certification or  accreditation may not always be possible or necessary.\14\ Competence  can often be ensured by having a second, independent translator  ``check'' the work of the primary translator. Alternatively, one  translator can translate the document, and a second, independent  translator could translate it back into English to check that the  appropriate meaning has been conveyed. This is called ``back  translation.'' ---------------------------------------------------------------------------      \14\ For those languages in which no formal accreditation  currently exists, a particular level of membership in a professional  translation association can provide some indicator of  professionalism. ---------------------------------------------------------------------------      Translators should understand the expected reading level of the  audience and, where appropriate, have  [[Page 32299]]  fundamental knowledge about the target language group's vocabulary and  phraseology. Sometimes direct translation of materials results in a  translation that is written at a much more difficult level than the  English language version or has no relevant equivalent meaning.\15\  Community organizations may be able to help consider whether a document  is written at a good level for the audience. Likewise, consistency in  the words and phrases used to translate terms of art, legal, or other  technical concepts helps avoid confusion by LEP individuals and may  reduce costs. Creating or using already-created glossaries of commonly- used terms may be useful for LEP persons and translators and cost  effective for the recipient. Providing translators with examples of  previous accurate translations of similar material by the recipient,  other recipients, or federal agencies may be helpful. ---------------------------------------------------------------------------      \15\ For instance, there may be languages that do not have an  appropriate direct translation of some programmatic or legal terms  and the translator should be able to provide an appropriate  translation. The translator should likely also make the recipient  aware of this. Recipients can then work with translators to develop  a consistent and appropriate set of descriptions of these terms in  the language that can be used again, when appropriate. Recipients  will find it more effective and less costly if they try to maintain  consistency in the words and phrases used to translate terms of art  and legal or other technical concepts. Creating or using already- created glossaries of commonly used terms may be useful for LEP  persons and translators and cost-effective for the recipient.  Providing translators with examples of previous translations of  similar material by the recipient, other recipients, or federal  agencies may be helpful. ---------------------------------------------------------------------------      The quality and accuracy of language services is part of the  appropriate analysis of LEP services required. For instance, documents  that are simple and have no legal or other consequence for LEP persons  who rely on them may use translators that are less skilled than  important documents with legal or other information upon which reliance  has important consequences (including, e.g., information or documents  of DOL recipients regarding the provision of income security benefits,  such as UI, and health and safety training). The permanent nature of  written translations, however, imposes additional responsibility on the  recipient to ensure that the quality and accuracy permit meaningful  access by LEP persons.  VII. Elements of an Effective Plan on Language Assistance for LEP  Persons      After completing the four-factor analysis and deciding what  language assistance services are appropriate, a recipient should  develop an implementation plan to address the identified needs of the  LEP populations they serve.\16\ Recipients have considerable  flexibility in developing this plan. A written plan, while not a  requirement, can be an important tool for a recipient. The development  and maintenance of a periodically-updated written plan on language  assistance for LEP persons (``LEP plan'') for use by recipient  employees serving the public will likely be the most appropriate and  cost-effective means of documenting compliance and providing a  framework for the provision of timely and reasonable language  assistance. Moreover, such written plans would likely provide  additional benefits to a recipient's managers in the areas of training,  administration, planning, and budgeting. These benefits should lead  most recipients to document in a written LEP plan their language  assistance services and how staff and LEP persons can access those  services. Despite these benefits, certain DOL recipients, such as  recipients serving very few LEP persons and recipients with very  limited resources, may choose not to develop a written LEP plan.  However, the absence of a written LEP plan does not obviate the  underlying obligation to ensure meaningful access by LEP persons to a  recipient's program or activities. Accordingly, in the event that a  recipient elects not to develop a written plan, it should consider  alternative ways to articulate in some other reasonable manner a plan  for providing meaningful access. Entities having significant contact  with LEP persons, such as schools, faith-based organizations, community  groups, and groups working with new immigrants, can be very helpful in  providing important input into this planning process from the  beginning. ---------------------------------------------------------------------------      \16\ Certain recipients of DOL financial assistance are  required, per 29 CFR 37.54, to establish and adhere to a Methods of  Administration (MOA). Per the regulations, MOAs must be in writing,  reviewed and updated every two years as required by Section 37.55,  and, at a minimum, describe how the state programs and recipients  have satisfied the requirements of regulations, including those  found at Sections 37.35 and 37.42. ---------------------------------------------------------------------------      The following five elements may be helpful in designing a LEP plan  and are typically part of an effective implementation plan.  (1) Identifying LEP Individuals Who Need Language Assistance      The first two factors in the four-factor analysis require an  assessment of the number or proportion of LEP individuals eligible to  be served or encountered and the frequency of encounters. This requires  a recipient to identify LEP persons with whom it has contact.     One way to determine the language of communication is to use  language identification cards (or ``I speak cards''), which invite LEP  persons to identify their language needs to staff. Such cards, for  instance, might read ``I speak Spanish'' in both Spanish and English,  ``I speak Vietnamese'' in both English and Vietnamese, etc. To reduce  costs of compliance, the federal government has made a set of these  cards available on the Internet. The Census Bureau ``I speak cards''  can be found and downloaded at  When records are normally kept of past interactions with members of the  public, the language of the LEP person can be included as part of the  record. In addition to helping employees identify the language of LEP  persons they encounter, this process will help in future applications  of the first two factors of the four-factor analysis. In addition,  posting notices in commonly encountered languages notifying LEP persons  of the availability of language assistance will encourage them to self- identify.     Recipients should also consider circumstances in which, although  the participant and/or beneficiary can communicate effectively in  English, assistance may be needed when interacting with other pertinent  individuals. For example, if a youth under the age of eighteen needs a  parent's signature to participate in a summer employment program,  language assistance may be necessary to provide information and obtain  the necessary permission. Recipients should also be aware of external  circumstances that may impact the number of persons (LEP or otherwise)  seeking government assistance. For example, recipients may experience  an ebb and flow of persons working in agricultural jobs depending on  the season, the success of harvest, and other factors such as weather  (droughts or floods). Changes in the economy may disproportionately  force low-income individuals (as LEPs tend to be) to turn to government  programs for assistance.  (2) Language Assistance Measures      An effective LEP plan would likely include information about the  ways in which language assistance will be provided. For instance,  recipients may want to include information on at least the following:     [sbull] Types of language services available;     [sbull] How staff can obtain those services;     [sbull] How to respond to LEP callers;  [[Page 32300]]      [sbull] How to respond to written communications from LEP persons;     [sbull] How to respond to LEP individuals who have in-person  contact with recipient staff; and     [sbull] How to ensure competency of interpreters and translation  services.  (3) Training Staff      Staff should know their obligations to provide meaningful access to  information and services for LEP persons. An effective LEP plan would  likely include training to ensure that:     [sbull] Staff know about LEP policies and procedures; and     [sbull] Staff having contact with the public are trained to work  effectively with in-person and telephone interpreters.     Recipients may want to include this training as part of the  orientation for new employees. It is important to ensure that all  employees in public contact positions are properly trained. Recipients  have flexibility in deciding the manner in which the training is  provided. The more frequent the contact with LEP persons, the greater  the need will be for in-depth training. Staff with little or no contact  with LEP persons may only have to be aware of the LEP plan. However,  management staff, even if they do not interact regularly with LEP  persons, should be fully aware of and understand the plan so they can  reinforce its importance and ensure its implementation by staff.  (4) Providing Notice to LEP Persons      Once a recipient has decided, based on the four factors, that it  will provide certain language services, it is important for the  recipient to let LEP persons know that those services are available and  that they will be offered free of charge. Recipients should provide  notice of the availability of language assistance services in  language(s) that LEP persons will understand. Examples of notification  that recipients should consider include:     [sbull] Posting signs in intake areas and other entry points. When  language assistance is needed to ensure meaningful access to  information and services, it is important to provide notice in  appropriate languages in intake areas or initial points of contact so  that LEP persons can learn how to access those language services. This  is particularly true in areas with high volumes of LEP persons seeking  access to certain workforce and income security programs, services or  activities run by DOL recipients. For instance, signs in One-Stop  Career Centers could state that free language assistance is available.  The signs should be translated into the most common languages  encountered. They should explain how to obtain the language help.\17\ ---------------------------------------------------------------------------      \17\ The Social Security Administration has made such signs  available at: These  signs could be modified for recipient use. ---------------------------------------------------------------------------      [sbull] Stating in outreach documents that language services are  available from the recipient. Announcements could be in, for instance,  brochures, booklets, and in other outreach and recruitment information.  These statements should be translated into the most common languages  and could be ``tagged'' onto the front of common documents.     [sbull] Working with community-based organizations and other  stakeholders to inform LEP individuals of the recipients' programs and  activities, including the availability of language assistance services.     [sbull] Using a telephone voice mail menu. The menu could be in the  most common languages encountered. It should provide information about  available language assistance services and how to access them.     [sbull] Including notices in local newspapers in languages other  than English.     [sbull] Airing notices on non-English language radio and television  stations about the availability of language assistance and how to  access it.     [sbull] Making presentations and/or posting notices at schools,  faith-based and other community organizations.  (5) Monitoring and Updating the LEP Plan      Recipients should, where appropriate, have a process for  determining, on an ongoing basis, whether new documents, programs,  services, and activities need to be made accessible for LEP  individuals, and they may want to provide notice of any changes in  services to the LEP public and to employees. In addition, recipients  should consider whether changes in demographics, types of services, or  other factors require annual reevaluation of LEP plans. Less frequent  reevaluation may be more appropriate where demographics, services, and  needs are more static. One good way to evaluate the LEP plan is to seek  feedback from the community. In their reviews, recipients may want to  consider assessing changes in:     [sbull] Current LEP populations in service area or population  affected or encountered;     [sbull] Frequency of encounters with LEP language groups;     [sbull] Nature and importance of activities to LEP persons;     [sbull] Availability of resources, including technological advances  and sources of additional resources, and the costs imposed;     [sbull] Whether existing assistance is meeting the needs of LEP  persons;     [sbull] Whether staff knows and understands the LEP plan and how to  implement it;     [sbull] Legislation or program requirements governing the  recipient's program or activity; and     [sbull] Whether identified sources for assistance are still  available and viable.     In addition to these five elements, effective plans set clear  goals, management accountability, and opportunities for community input  and planning throughout the process.  VIII. Voluntary Compliance Efforts      The goal for Title VI and Title VI regulatory enforcement is to  achieve voluntary compliance. The requirement to provide meaningful  access to LEP persons is enforced and implemented by DOL through the  procedures identified in the Title VI and Section 188 regulations.  These procedures include complaint investigations, compliance reviews,  efforts to secure voluntary compliance, and technical assistance.     DOL's Civil Rights Center (CRC) enforces Title VI and Section 188  through the procedures identified in the regulations in 29 CFR parts 31  and 37. The regulations state that CRC will investigate any complaint,  report or other information that alleges or indicates possible  noncompliance with Title VI and Section 188. If the investigation  results in a finding of compliance, CRC will inform the recipient in  writing of this determination, including the basis for the  determination. If the investigation results in a finding of  noncompliance, CRC will inform the recipient of the noncompliance in a  Letter of Findings that sets out the areas of noncompliance and the  steps that must be taken to correct the noncompliance. At this stage,  CRC will attempt to secure voluntary compliance through informal means.  If the matter cannot be resolved informally, compliance may be  effectuated through (a) the termination of federal assistance after the  recipient has been given an opportunity for an administrative hearing;  (b) referral to DOJ for injunctive relief or other enforcement  proceedings; or (c) any other means authorized by law. CRC has a legal  obligation to seek voluntary compliance in resolving cases and cannot  seek the termination of funds until it has engaged in voluntary  compliance efforts and has determined that compliance cannot be secured  voluntarily.  [[Page 32301]]      CRC engages in voluntary compliance efforts and provides technical  assistance to recipients at all stages. During efforts to secure  voluntary compliance, CRC will propose reasonable timetables for  achieving compliance and will consult with and assist recipients in  exploring cost effective ways of coming into compliance by increasing  awareness of emerging technologies and by sharing information on how  other recipients have addressed the language needs of diverse  populations. In determining a recipient's compliance with Title VI and  Section 188, CRC's primary concern is to ensure that the recipient's  policies and procedures overcome barriers resulting from language  differences that would deny LEP persons meaningful opportunities to  participate in and access programs, services and benefits. A  recipient's appropriate consideration of the methods and options  discussed in this Guidance will be viewed by CRC as evidence of a  recipient's willingness to comply with its Title VI and Section 188  obligations.     While all recipients must work toward building systems that will  ensure access for LEP individuals, DOL acknowledges that the  implementation of a comprehensive system to serve LEP individuals is a  process and that a system will evolve over time as it is implemented  and periodically reevaluated. As recipients take reasonable steps to  provide meaningful access to federally assisted programs and activities  for LEP persons, DOL will look favorably on intermediate steps  recipients take that are consistent with this Guidance, and that, as  part of a broader implementation plan or schedule, move their service  delivery systems toward providing full access to LEP persons. This does  not excuse noncompliance but instead recognizes that full compliance in  all areas of a recipient's activities and for all potential language  minority groups may reasonably require a series of implementing actions  over a period of time. However, in developing any phased implementation  schedule, DOL recipients should ensure that the provision of  appropriate assistance for significant LEP populations or with respect  to activities having a significant impact on the health, safety, legal  rights, or livelihood of beneficiaries is addressed first. Recipients  are encouraged to document their efforts to provide LEP persons with  meaningful access to federally assisted programs and activities.  Appendix--Application to Specific Types of Recipients      This Appendix provides examples of how the meaningful access  requirement of the Title VI and Section 188 of WIA regulations  applies to state workforce agencies and other recipients of DOL  financial assistance. These examples highlight best practices and  ideal approaches to serving LEP individuals in a variety of  situations. It is important to note that not all recipients may find  these approaches useful or necessary once they apply the four-factor  analysis to their individual situation. This Appendix also suggests  ways that DOL recipients can apply the four-factor analysis to a  range of encounters with the public as the responsibility for  providing language services differs depending on the program or  activity. The four factors are:     [sbull] The number or proportion of LEP persons served or  encountered in the eligible service population;     [sbull] The frequency with which LEP individuals come in contact  with the program;     [sbull] The nature and importance of the program, activity, or  service provided by the program; and     [sbull] The resources available to the recipient and costs.     This Appendix is also designed to help DOL recipients identify  the population to be considered when assessing the types of language  services to provide. It then offers guidance and examples on how to  apply the four-factor analysis to specific requirements of DOL- assisted programs and services, such as:     [sbull] Receiving and responding to requests for information and  services;     [sbull] Applications for benefits such as trade and Unemployment  Insurance benefits;     [sbull] Adjudications;     [sbull] Notifications of decisions;     [sbull] Intake, orientation and assessment;     [sbull] Training services; and     [sbull] Community outreach.  Appendix--Application of LEP Guidance for Specific Types of DOL  Recipients      While a wide range of entities receive federal financial  assistance through DOL, most of DOL's assistance is awarded to  Governors or local chief elected officials in the form of formula or  competitive grants for the provision of training, including job  training, and income support programs. This Appendix provides  examples to demonstrate how DOL recipients might apply the four- factor analysis. The examples in this Appendix are not meant to be  exhaustive. The four-factor analysis requires a balancing, given all  of the facts. Each different situation will present some unique  aspects. The examples are intended only to show how the four-factor  analysis may be applied in some situations.     The requirements of the Title VI and Section 188 regulations, as  clarified by the LEP Guidance, supplement, but do not supplant,  other statutory or regulatory provisions that may require LEP  services. Rather, the LEP Guidance clarifies the obligation under  both the Title VI and Section 188 regulations to address, in  appropriate circumstances and in a reasonable manner, the language  assistance needs of LEP individuals.     For the vast majority of the public, exposure to federally- assisted job training or income support programs includes applying  for and receiving Unemployment Insurance (UI) benefits or conducting  job search activities through the One-Stop Career System. For a  smaller number, exposure includes participation in a job training  program under WIA or the Trade Act of 1974 including Trade  Adjustment Assistance (TAA). The common thread running through these  and other interactions with the federally-assisted workforce system  is the exchange of information and services. LEP individuals'  encounters with One-Stop Career Centers, including UI Call Centers,  are covered by Title VI because they are funded wholly or in part by  DOL. This Guidance focuses on the requirement that DOL recipients  communicate effectively with persons who are LEP to ensure that they  have meaningful access to the workforce investment system,  including, for example, understanding how to apply for job training  and/or UI benefits.     Many DOL recipients already provide language services in a wide  variety of circumstances. For example, in areas where significant  LEP populations reside, One-Stop Career Center staff may utilize  forms and notices in languages other than English and/or they may  employ bilingual front-line staff. Recipients' current practices can  form a strong basis for applying the four-factor analysis and  complying with Title VI and WIA Section 188 regulations.     In general, when providing language services, DOL recipients  may: (1) Make available the staff and materials necessary to supply  required language services; (2) choose to require an entity with  which they have contracted to provide the services; or (3) contract  with another entity to provide those services. Recipients have a  wide variety of options for providing interpreter and translation  services appropriate to the particular situation. Using bilingual  staff competent to interpret in person or over the phone is one  option. Additionally, particular recipients may enter into  agreements with local colleges and universities, interpreter  services, and/or community organizations to provide competent paid  or volunteer translators.  1. General Principles      The touchstone of the four-factor analysis is reasonableness  based upon the specific purposes, needs, and capabilities of the DOL  recipient and an appreciation of the nature and particular needs of  the LEP population served. Accordingly, the four-factor analysis  cannot provide a single uniform answer about how service to LEP  persons must be provided in all programs or activities in all  situations or to what extent such service need be provided.     Knowledge of local conditions and community needs is critical in  determining the type and level of language services needed. The  following general points should  [[Page 32302]]  assist DOL recipients in correctly applying the four-factor analysis  to the wide range of services provided in their particular  communities.  a. Permanent Versus Seasonal Populations      In assessing factor one, the number or proportion of LEP  individuals, DOL recipients should consider any temporary but  significant changes in a community's demographics. In many areas,  resident populations change over time or according to season. For  example, in some resort communities, populations swell during peak  vacation periods, many times exceeding the number of permanent  residents in the area. In other communities, primarily agricultural  areas, transient populations of agricultural workers require  increased workforce investment services during planting and harvest  seasons. This dynamic demographic ebb and flow can also dramatically  change the size and nature of the LEP community that is likely to  come into contact with workforce entities. Thus, workforce entities  may not want to limit their analysis to numbers and proportions of  permanent residents.     Example: A rural community has a permanent population of 30,000,  of which seven percent is Hispanic. Based on census data and on  information from the contiguous school district, only 15 percent of  the Hispanic population is estimated to be LEP. Thus, the total  estimated permanent LEP population is 315 persons or approximately  one percent of the total permanent population. Under the four-factor  analysis, a workforce entity could reasonably conclude that the  small number of LEP persons makes the translation of vital documents  and/or employment of bilingual staff unnecessary. However, during  the spring and summer planting and harvest seasons, the local  population swells to 40,000 due to the influx of seasonal  agricultural workers. Of this temporary population, about 75 percent  is Hispanic and about 50 percent of that number is LEP. According to  data supplied by the contiguous school district and a migrant worker  community group, during the planting and harvest seasons, the  community's LEP population increases to over ten percent of all  residents. In this case, a DOL recipient should consider whether it  is necessary to translate vital written documents into Spanish. In  addition, the predictability of contact during those seasons makes  it important for the community to review its interpretative services  to ensure meaningful access for LEP individuals.  b. Target Audiences      For most workforce investment services, the target audience is  defined in geographic rather than programmatic terms. However, some  services may be targeted to reach a particular audience (e.g., out- of-school youth or migrant and seasonal farmworkers). Also, within  the larger geographic area covered by a workforce entity, certain  areas or neighborhoods may have concentrations of LEP persons. In  these cases, even if the overall number or proportion of LEP  individuals in the area is low, the frequency of contact may be  higher for certain areas or programs. Thus, the second factor,  frequency of contact, should be considered in light of the specific  program or the geographic area served.     Example: A community-based organization (CBO) is partnering with  a local One-Stop Career Center to provide services to dislocated  workers who have lost their jobs due to several recent textile plant  closures. The LEP population of the community is estimated at only  three percent. However, the LEP population of the workers dislocated  by the closures is 35 percent, the vast majority of whom speak  Vietnamese. As the target population for this CBO is confined to the  dislocated workers, the number or proportion of LEP persons in the  eligible service population would be calculated based on these  workers. The applicable LEP factor would be the frequency with which  LEP individuals come in contact with the program, which in this  instance would involve a much higher percentage of LEP individuals  than that of the general population. Further, because the Vietnamese  LEP population is concentrated in one or two main areas of the town,  the CBO should expect the frequency of contact with Vietnamese LEP  individuals, in general, to be quite high in those areas, and it  should apply the four-factor analysis accordingly with respect to  the services it provides.  c. Importance of Service/Information      DOL recipients play a critical role in providing workforce  services, income support, and health and safety training for many  Americans. UI, health and safety services provided through the  Occupational Safety and Health and Mine Safety and Health  Administrations, information and enforcement of State and local wage  and hour laws and other workers' rights enforcement issues taken on  by recipients, and employment services rank high on the critical/ non-critical continuum. However, this does not mean that information  about all services and activities performed by workforce entities  must be equally available in languages other than English. While  clearly important to the ultimate success of the workforce  investment system, certain activities do not have the same direct  impact on the provision of core workforce investment services. The  more important the program or activity or the greater the possible  consequences of the contact for LEP individuals, the more likely  language assistance services will be necessary.     Example: The Occupational Safety and Health Administration  (OSHA) and Mine Safety and Health Administration (MSHA) provide  grants to recipients to conduct safety and health training to  individuals employed in many dangerous occupations, such as  construction and mining. Much of the training involves learning how  to take precautions to avoid accidents or injuries while on the job.  Where individuals could sustain bodily harm if training is not  provided in an understandable language, the need for appropriate  communication is extremely high.     There may be some instances in which the four-factor analysis of  a particular portion of a recipient's program or activity leads to  the conclusion that language services are not currently required.  For instance, the four-factor analysis may not necessarily require  that an advanced level computer course be given in languages other  than English, if the language-related requirements for such an  employment path is such that few, if any, LEP persons would benefit  from the particular course even if it were made accessible to them  and even if they are in the process of learning English (see Section  V(3) above regarding such determinations), and if the other three  factors also weigh against providing the service. However, a  recipient may decide to provide other computer courses in languages  other than English given demographics of the area and the potential  benefit to the LEP population. Because the analysis is fact- dependent, the same conclusion may not be appropriate with respect  to all computer courses or to other courses.  2. Applying the Four-Factor Analysis to the Full Spectrum of Services      While all workforce investment activities are important, the  four-factor analysis requires some prioritizing so that language  services are targeted where they are most needed depending on the  nature and importance of the particular service provided. Workforce  entities have a great deal of flexibility in determining how to best  address outreach to their LEP populations. In order to determine  what is reasonable under the four-factor analysis, consider that the  obligation to provide language services increases where the  importance of the activity is greater. Under this framework,  critical areas for language assistance would include applications  for UI or trade-related benefits and adjudications of issues  regarding benefits. Systems for receiving and addressing complaints  from the public are also important. Employment services are of great  importance for persons who are not currently employed. Community  outreach activities are hard to categorize and generally less  critical than other activities unless barriers to participation  (such as limited availability of language services) exist. With the  importance of community partnerships and involvement, the four- factor analysis should be considered when evaluating the need for  language services with respect to these programs.  a. Receiving and Responding to Requests for Assistance      Taking reasonable steps to provide meaningful access to  workforce investment services will entail different things in  different communities. For instance, in areas with significant LEP  communities, some intake workers and claims examiners may need to be  bilingual and capable of accurately interpreting in high stress  situations. Recipients in areas with small LEP populations should  still have a plan for serving persons who are LEP, which may involve  a telephone interpretation service or include some other  accommodation short of hiring bilingual staff. Signs and telephone  voicemail systems should also be appropriate for the populations  served.     Example: A One-Stop Career Center in a large city has bilingual  staff that can interpret  [[Page 32303]]  the most frequently encountered languages. When LEP clients request  services in less frequently encountered languages, a commercial  telephone interpretation service is provided. Ten percent of the  city's population is LEP, and sixty percent of the LEP population  speaks Spanish. The One-Stop Career Center has many Spanish-speaking  staff and a few staff that speak other languages. Forms are  translated into Spanish. The recipient provides services to other  non-English-speaking clients using a language bank, comprised of  volunteers and bilingual staff employed by other Government entities  who are competent translators and/or interpreters. This example may  be one appropriate way of providing meaningful access for LEP  individuals.     Example: A small One-Stop Career Center is operated by a  recipient of DOL funds and located in an area where 15 percent of  the population speak Spanish and may be LEP. Seven percent of the  population in the service area speak various Chinese dialects and  may be LEP. The One-Stop Career Center uses competent community  volunteers to help translate vital outreach materials into Chinese  (which is one written language despite many dialects) and Spanish.  The One-Stop Career Center telephone system has a menu providing key  information, such as location, in English, Spanish, and two of the  most common Chinese dialects. Calls for immediate assistance are  handled by bilingual staff. The One-Stop Career Center has one  counselor and several volunteers fluent in Spanish and English. Some  volunteers are fluent in different Chinese dialects and in English.  The One-Stop Career Center works with community groups to access  interpreters in the several Chinese dialects that they encounter.  One-Stop Career Center staff train the community volunteers in the  intake process and the specialized vocabulary needed to explain the  services available. Volunteers sign confidentiality agreements. The  One-Stop Career Center is looking for a grant to increase its  language capabilities despite its limited resources. There have been  no complaints of delayed or denied service on account of language  barriers. This example may be one appropriate way of providing  meaningful access for LEP individuals.  b. Delivering Labor Exchange Services      Currently, labor exchange services are being delivered through a  wide variety of media, both electronic and paper-based. However,  state and local workforce agencies are increasingly relying on  Internet-based, self-help models of service delivery. While this  method of service has the potential of benefiting the greatest  number of job seekers while minimizing staff resources, key segments  of the population are potentially excluded. Persons with limited  language and literacy skills often have extra difficulty accessing  services through the self-help, Internet-based systems. As such, a  service plan is needed to develop alternative delivery systems. This  can be done through incorporating one or more of the following  strategies: (1) Having certain information translated; (2)  incorporating a sufficient level of staff assistance to serve those  persons that need assistance in accessing services electronically;  or (3) providing direct one-on-one sessions with LEP applicants who  are unable to access electronic information.     Example: A One-Stop Career Center in a moderately large city  includes significant LEP populations whose native languages are  Spanish, Korean, and Tagalog. One-Stop Career Center management  officials could reasonably consider creating a resource list of  individuals competent to interpret and ready to assist front-line  staff dealing with LEP customers. This could be combined with  developing language-appropriate written materials, such as an  explanation of basic labor exchange activities and other services  available at the One-Stop Career Center for use by LEP individuals  who are literate in those languages. In other circumstances, it may  be necessary to provide access to a telephone interpretation  service.     Example: Job placement staff at a One-Stop Career Center assist  employers interested in hiring LEP individuals who have completed  ESL vocational training. In some instances, employers may have  bilingual supervisors who can assure that safety precautions and  explanations are provided in the individuals' primary language(s).  In other locations, ``ethnic'' community-based organizations  maintain lists of employers who have openings and are able to place  LEP individuals without providing ESL or vocational training with  businesses where the LEP individuals' primary language(s) is spoken.  This example may be one appropriate way of providing meaningful  access for LEP individuals.     Example: A large state, with an ethnically diverse population,  operates a website as part of its overall delivery system which  offers access to labor market information and provides labor  exchange self-service for job seekers and employers. Because of the  scope and reach of the Internet, the population eligible to be  served by that website may easily include LEP individuals  representing over 100 different languages. In this instance, the  state translates key documents and forms on its website into the  most significant languages, e.g., representing five percent or more  of the total eligible population to be served, and advertises its  toll-free help line, which includes interpretation services, on the  homepage of its website. Through the combination of its toll-free  help line and its in-office delivery system, the state is able to  provide information and services to LEPs in languages that are less  commonly encountered. In this instance, the recipient takes into  account, in conducting its four-factor analysis, its entire delivery  system, not just one component. This example may be one appropriate  way of providing meaningful access for LEP individuals.  c. Delivering Unemployment Insurance (UI) Services      The federal-state UI program created by the Social Security Act  of 1935, offers the first line of defense against the ripple effects  of unemployment. Payments made directly to eligible, unemployed  workers ensure that at least a significant proportion of the  necessities of life, most notably food, shelter and clothing, can be  met on a week-to-week basis while the claimant searches for work. UI  benefits provide temporary wage replacement that helps claimants to  maintain their purchasing power and stabilize the economy.  (1). Initial Claims and Follow-Up Notices      State agencies that serve LEP claimants should consider the  inherent communication impediments to gathering information from LEP  persons throughout the UI claims process. During the initial claim  process, it is necessary to collect basic information, such as the  LEP person's name, address, employment information, and reason for  separation from employment. It is also necessary to communicate with  claimants throughout the life of their claims, and workforce  agencies should evaluate their ability to provide appropriate  services at all stages of the UI claim. Where few bilingual staff  are available or in situations where the LEP person speaks a  language not frequently encountered in the local area, telephone  interpretation services may provide the most cost effective and  efficient method of communication during the initial claim. However,  subsequent correspondence and communication frequently entail  written notices and claim forms. Depending on the size of the LEP  population, it may be necessary to translate vital forms into other  languages or to include a multilingual tag-line on correspondence  not appropriately translated to inform claimants that free language  services are available.     Example: A state agency operates a statewide Call Center for UI  initial claims taking that receives 100,000 calls per year. The  majority of the calls are from English speakers. Fifteen percent of  the callers (15,000) do not speak English: 6,500 callers speak  Spanish; 4,000 speak Vietnamese; 3,500 speak Cambodian; and the rest  speak other languages (500 Russian, 100 French, 80 Tagalog, 20  German, and 300 speak other languages). The Call Center employs four  Spanish speakers, two Vietnamese speakers and two Cambodian  speakers. A voice response system directs the calls as appropriate  to the bilingual staff. Calls from LEP claimants speaking other  languages are directed to a commercial interpretation (telephone  interpretation) service. The Call Center's bilingual employees are  able to handle most calls from the three significant LEP language  groups that they serve. Callers who speak English and any of the  three languages for which translation is provided generally wait no  longer than five minutes to speak with the staff. The system is  monitored for wait times and performance. Follow-up correspondence  such as letters, notices, and forms contain a tag-line in the  languages of the three significant LEP groups and three other  commonly encountered languages. The tag-line advises individuals of  the importance of the information and provides a phone number to  call for assistance. This example may be one appropriate way of  providing meaningful access for LEP individuals.  (2). UI Benefits Rights Information (BRI)      State agencies provide UI benefits rights information to all  claimants. The information is necessary to ensure that claimants  [[Page 32304]]  understand their rights and responsibilities under the state UI law.     Example: A state agency takes its UI claims in-person. It prints  a Benefits Rights Information (BRI) pamphlet in English and in three  other languages to serve the three significant LEP population groups  in the state. After the initial claim is taken, the state agency  provides the BRI in a group setting for all claimants. LEP  individuals who speak the three significant languages attend  separate groups in which the information is conveyed in the  appropriate languages. Claimants who speak languages that are less  prevalent receive the information through a telephone translation  service. The state agency has also produced a video of the BRI in  the three primary LEP groups' languages. The BRI video is available  for viewing at the local library or at the local office. Claimants  are advised that the BRI is important and that it is necessary that  they hear and understand the BRI before filing claims for benefits.  This example may be one appropriate way of providing meaningful  access for LEP individuals.  (3). UI Determinations/Adjudications/Appeals      The purpose of the UI program is to provide temporary financial  assistance to individuals who have lost their employment, who are  able and available for work, and who meet other eligibility  requirements of state law. As appropriate, claims adjudicators apply  the legal test of the various requirements of the state law to the  factual circumstances involved in each specific claim to issue a  determination of eligibility. All state laws contain provisions  permitting claimants to appeal determinations within a specified  period of time. Because of the importance of accurate and timely  information from UI claimants for eligibility determinations,  formulating a successful policy for effectively communicating with  LEP individuals is necessary.      Example: A workforce agency institutes a LEP plan that provides  qualified interpreters, as necessary, for fact-finding at the  initial determination stage and/or at an appeals hearing. Some of  the interpretation is done using bilingual state agency staff, and  some interpretation is handled by a number of individuals that are  placed on a ``list of interpreters'' developed to assist when state  staff is unavailable or when staff do not speak the particular  language needed. The agency also has a contract with a telephone  translation service, which is used as needed. The written  determinations and decisions are printed in English and Spanish and  ``tag-lines'' (an annotation) are included in four additional  languages advising claimants of their appeal rights. Claimants are  advised at the time of the initial claim that it is very important  to read and understand correspondence they receive about UI, and  they are encouraged to seek assistance by contacting the agency as  necessary. The agency is able to handle telephonic inquiries  languages other than English. These actions would constitute  evidence of reasonable steps to ensure meaningful access to the UI  benefits. This example may be one appropriate way of providing  meaningful access for LEP individuals.  (4). UI Linkages to Reemployment Services      Facilitating reemployment of the UI claimant is a key objective  of the UI system. Claimants therefore need to be aware of the types  of services available and need to know how and where to access such  services.     Example: A state agency profiles UI claimants to identify those  most in need of reemployment services. Written notices to report for  reemployment services are sent to those claimants who have been  identified as needing these services and whom the agency has the  capacity to serve. Claimants are given specific instructions to  report to the agency or contact the agency through other means such  as by telephone. Claimants must understand both the requirement that  they contact the agency and their rights under state law because a  failure to follow these instructions could result in the denial of  UI benefits. A tag-line is included on all notices in the three  primary languages advising the claimant of the importance of these  services and of the fact that language assistance will be available  free of charge. Translation and interpretation for LEP claimants is  provided through telephone interpretation services, some bilingual  staff, and community-based organizations as needed. One-Stop Career  Centers that may subsequently refer claimants to other service  providers ensure that the service providers are aware of the  language needs of the LEP claimants. This example may be one  appropriate way of providing meaningful access for LEP individuals.  d. Community Outreach      Community outreach activities are increasingly recognized as  important to the ultimate success of a program that aims to serve  the larger community. Thus, application of the four-factor analysis  to community outreach activities can play an important role in  ensuring that the purpose of these activities--to improve awareness  of and participation in a program--is not thwarted due to lack of  planned, reasonable steps to address the language needs of LEP  persons.     Example: A state Employment Security Department (ESD) UI  Division has implemented a many-faceted outreach program to inform  Spanish-speaking LEP customers how to access UI benefits. Eight  radio stations that reach the highest numbers of Hispanics are used  to make public service announcements about ESD services. Inserts are  placed in major Hispanic newspapers and magazines, and flyers on ESD  services are distributed through community centers, faith-based  organizations, and Hispanic businesses. Articles are printed in  newspapers and magazines in Spanish and English on how to file UI  claims by phone through the UI Telecenters. This example may be one  appropriate way of providing meaningful access for LEP individuals.     Example: The Local Workforce Investment Board mobilizes faith  and community-based organizations to spread the word about the  upcoming public comment session on its five-year workforce  investment plan in the six major languages spoken by LEP individuals  in the area. Information about the upcoming meeting is delivered  throughout the community in written notices (in each target  language) as well as through public service announcements on radio  and tv in these six target languages. This example may be one  appropriate way of providing meaningful access for LEP individuals.  e. ESL Classes      English-as-a-second-language (ESL) classes are often useful and  appropriate for LEP populations. ESL courses can serve as an  important part of a proper LEP plan. However, the fact that ESL  classes are provided does not necessarily obviate the need to  provide meaningful access for LEP persons in other programs and  services that the One-Stop Career Center provides.  f. Intake, Orientation and Assessment      Intake, orientation and assessment play a critical role not  merely in the system's identification of LEP persons, but also in  providing those persons with fundamental information about how to  utilize the system and participate in education and training  opportunities available. All individuals should be given the  opportunity to be informed of the program's rules, obligations, and  opportunities in a manner designed effectively to communicate these  matters. An appropriate analogy is the obligation to communicate  effectively with deaf persons, which is most frequently accomplished  through sign language interpreters or written materials. Not every  One-Stop Career Center will use the same method for providing  language assistance. One-Stop Career Centers with large numbers of  Spanish-speaking LEP persons may choose to translate written  materials, notices, and other important orientation material into  Spanish with oral instructions, whereas One-Stop Career Centers with  very few such persons may choose to rely upon a telephonic  interpretation service or qualified community volunteers to assist.  Each person's LEP status and the language spoken should be recorded  in the person's file. Although the LEP Guidance and Title VI are not  meant to address literacy levels, recipients should be aware of  literacy problems so that the appropriate language services are  provided.     Example: A One-Stop Career Center is located in an area that has  a five percent Haitian Creole-speaking LEP population and an eight  percent Spanish-speaking LEP population. The One-Stop Career Center  has developed intake videos in Haitian Creole and Spanish for staff  to use when conducting orientation for new LEP persons who speak  these languages. In addition, the One-Stop Career Center provides  LEP persons with the opportunity to ask questions and discuss  orientation information with bilingual staff who are competent in  interpreting and who are either present at the orientation or  patched in by phone to act as interpreters. The One-Stop Career  Center has also made arrangements for LEP persons who do not speak  Haitian Creole or Spanish. For such situations, the One-Stop Career  Center has created a list of sources for interpretation, including  staff, contract interpreters, university resources, volunteers, and  a telephone interpretation service. Each person receives at least an  oral explanation of the  [[Page 32305]]  services available in the One-Stop Career Center. This example may  be one appropriate way of providing meaningful access for LEP  individuals.  g. Providing More Intensive Employment and Training Services      An effective LEP plan should envision how a LEP person will move  from receipt of core services to intensive services and then to  training services. An effective LEP plan will envision  accommodations along each step of the service continuum. For  example, customized programs that combine Vocational ESL and skills- based vocational training may be appropriate depending upon the size  of the LEP population and the need of individual LEP persons. If  there are a significant number of LEP persons speaking a particular  language in a local area, the One-Stop Career System should consider  outreach to training providers that could provide classes in  appropriate languages in One-Stop Career Centers and at employer  sites. If there are far fewer LEP persons speaking a particular  language, the recipient might consider the use of bilingual  teachers, contract interpreters, community volunteers to interpret  during the class, reliance on videos or written explanations in  appropriate languages.     Example: A rural One-Stop Career Center has made a number of  accommodations to serve LEP job-seekers. Services are provided both  directly to the applicants and through a partner organization that  has the capability to mobilize comprehensive services to assist LEP  clients. The partner organization runs a special service center,  which is considered part of the One-Stop Career System and is  located near its main offices. The special center offers core  employment services such as job placement, job-seeking/job-retention  skills, and individual counseling to LEP clients as well as  providing access to many other services, such as housing,  transportation, childcare, legal services, counseling, interpretive  services, and assistance with completing immigration and  naturalization forms. Emergency referrals for healthcare, housing/ shelter, and food are also made. The local One-Stop Career Center  also routinely provides specialized resources to serve LEP  dislocated workers, including bilingual assistance for UI and other  financial aid, assessment of English language skills, and ESL career  planning. The program utilizes the ESL capabilities available at the  local community college and hires translators to assist the workers  in developing individual plans, providing guidance, and in taking  skill-building courses in new demand occupations. Customized ESL  classes have been developed on specific work-related issues (for  example, higher level ESL courses on job seeking and communicating  in the workplace are offered). Students are also referred to both  community-based ESL and an intensive for-credit immersion ESL course  that runs five days a week, six hours a day, offered through the  local community college. The local program has also developed a  strong partnership with the State Bureau of Refugee Services to  coordinate the provision of additional social services for LEP  dislocated workers. This example may be one appropriate way of  providing meaningful access for LEP individuals.     Example: A community college, which serves as a One-Stop Career  Center, customizes its workforce services for LEP individuals. In  particular, its dislocated worker program (of which eighteen percent  of participants is LEP) has made accommodations in fourteen services  that are now individualized to meet the specific needs of LEP  participants. The services include: outreach and recruitment, rapid  response, orientation, assessment, case management, self-sufficiency  plan development, support services, vocational training, job search  assistance, job development and placement, retention services,  interagency coordination, basic skills training, and employer  services. Changes in services have been developed through close  collaboration between the workforce investment staff and the  traditional ESL teachers at the community college. While ESL, adult  basic education and GED courses are available to all participants;  the LEP dislocated workers receive customized employment-related ESL  training. The dislocated worker program also provides peer support  training and counseling. This unique approach involves training  peers--dislocated workers themselves--who are proficient in both the  LEP participant's primary language and English to serve as  translators, information providers, and counselors to the other  dislocated workers. Another unique component of the services to LEP  dislocated workers is the targeted industry model, which includes  pre-training job shadowing and industry-related classroom  activities. The program also provides training to employers on  cultural differences and on creating multicultural work teams.  Finally, the program has developed close relationships with  community-based organizations serving immigrant populations to  provide other services to LEP individuals. The community-based  organizations provide additional employment services as well as  information on a variety of youth and family services, which may be  useful to dislocated worker participants. This example may be one  appropriate way of providing meaningful access for LEP individuals.  h. Youth Programs      DOL provides funds to many youth programs to which the LEP  Guidance applies. Recipients should also consider LEP parents when  designing programs targeted to youth.     Example: A local workforce program serving former gang members  has significantly altered its services to accommodate a large number  of immigrant youth who have limited English proficiency and are  transitioning from the juvenile justice system. In order to make all  program elements accessible to these youth, program staff is fluent  in multiple languages including Vietnamese, Cambodian, Spanish, and  Laotian. Upon entry into the program, each youth is assessed using a  specially designed risk assessment tool to gauge such factors as  educational and employment skill levels, need for home-based support  (which can include culturally appropriate interventions),  counseling, and identification of personal assets and interests.  Each youth receives an individualized service strategy after  assessment. This example may be one appropriate way of providing  meaningful access for LEP individuals.  [FR Doc. 03-13125 Filed 5-28-03; 8:45 am]  BILLING CODE 4510-23-P 
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Updated August 6, 2015

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