N.Y. Comp. Codes R. & Regs. tit. 18 § 385.9

Current through Register Vol. 46, No. 43, October 23, 2024

Section 385.9 - Work activities and work requirements

(a) Social services districts may provide, and require applicants for and recipients of public assistance to participate in a variety of activities, including but not limited to the following:

(1) unsubsidized employment;

(2) subsidized private sector employment;

(3) subsidized public sector employment;

(4) work experience in the public sector or non-profit sector, (including work associated with refurbishing publicly assisted housing) if sufficient private sector employment is not available as determined by the social services official. The maximum number of hours a recipient or applicant may be required to engage in this activity is limited to the number which equals the amount of assistance payable with respect to the public assistance household of such individual (inclusive of the value of SNAP received by the public assistance household of such individual, if any) divided by the higher of (i) the Federal minimum wage, or (ii) the State minimum wage. The limitation of the number of hours of work experience to which a participant may be assigned is a calculation of allowable hours in a work activity and does not mean that such participant is receiving a wage for the performance of such activities. The participant is not working off the grant, but is engaged in work activities as an element of his/her plan to become self-sufficient;

(5) on-the-job training;

(6) job search and job readiness assistance, as time limited by Federal law, provided that job search is an active and continuing effort to secure employment, configured by the social services official, provided further, such activities shall include activities with the goal of seeking or obtaining employment, or preparation to seek or obtain employment, including life-skills training, which shall include, but not be limited to, home visiting services to the recipient and their family;

(7) community service programs provided, however, the number of hours a participant in community service activities authorized pursuant to this section may be required to work in such assignment shall not exceed a number which equals the amount of assistance payable with respect to the public assistance household of such individual (inclusive of the value of SNAP received by the public assistance household of such individual, if any) divided by the higher of (i) the Federal minimum wage, or (ii) the State minimum wage. No participant shall be assigned to a community service activity that conflicts with his/her bona fide religious beliefs. The definition or parameters of this activity shall be set forth in the local plan submitted by the social services district, provided that an individual needed in the home because another member of the household requires his/her presence due to a verified mental or physical impairment shall be deemed to be engaged in community service to the extent such person is actually providing care for such member of the household. The limitation of the number of hours of community service to which a participant may be assigned is a calculation of allowable hours in a work activity and does not mean that such participant is receiving a wage for the performance of such activities. The participant is not working off the grant, but is engaged in work activities as an element of his or her plan to become self-sufficient. For purposes of calculating the participation rate, recipients who are acting as foster parents for children are deemed engaged in community service to the extent they are actually providing care for such children;

(8) vocational educational training as time limited by Federal law and pursuant to subdivision (c) of this section;

(9) job search and job readiness assistance once the individual has exceeded the six-week limit set in Federal law in accordance with paragraph (6) of this subdivision;

(10) education directly related to employment, in the case of a recipient who has not yet received a high school diploma or a certificate of high school equivalency;

(11) satisfactory attendance at secondary school or a course of study leading to a certificate of general equivalency in the case of a recipient who has not completed secondary school or received such certificate;

(12) provision of child care services to an individual who is participating in community service;

(13) job search and job readiness assistance once the individual has exceeded the six week limit set in Federal law;

(14) educational activities pursuant to subdivision (c) of this section;

(15) other activities set forth in a local district plan.

(b) Additional provisions.

(1) No participant shall be required to provide child care services as a work activity described in this Part unless the participant expressly requests in writing to provide such services.

(2) Social services districts may enter into agreements with public and private employment agencies to assist recipients of public assistance to find jobs.

(3) No participant shall in any case be required to engage in assigned activities for more than 40 hours in any week.

(4) A non-graduate degree student who is participating in a work-study, internship, externship, or other work placement that is part of the curriculum of a student approved for participation by the City University of New York (CUNY), the State University of New York (SUNY), another degree granting institution, or any other education, training or vocational rehabilitation agency approved by the State or social services district, shall not be unreasonably denied the ability to participate in such program as a work activity assignment made in accordance with the provisions of this Part. A social services district may deny such participation based upon consideration of factors including, but not limited to:

(i) the determination that the student voluntarily quit a job or reduced earnings to qualify for initial or increased public assistance as determined in accordance with section 385.13 of this Part;

(ii) that a job or on-the-job training position that is comparable to the work-study, internship, externship or other work placement cannot reasonably be expected to exist in the private, public, or not-for-profit sector;

(iii) that the student is not maintaining a cumulative C average (or its equivalent), which may be waived by the district for cases of undue hardship based on the death of a relative, the personal injury or illness of the student or other extenuating circumstances as determined appropriate by the district;

(iv) failure of the institution or student to monitor and report to the social services district monthly, or as otherwise reasonably required by the district, information regarding the student's attendance and performance related to the work placement. Failure of the institution to monitor and report student attendance and performance shall be cause for the district to reasonably deny approval of the student's participation in such programs as a work activity;

(v) failure of the student to progress toward the completion of a course of study without good cause as determined by the social services district; and

(vi) that the student had previously enrolled in a work-study, internship, or other work placement and failed to complete the work placement without good cause as determined by the social services district.

(5) When a social services district assigns a non-graduate student participating in a social services district approved work-study, internship, externship or other work placement to work activities in accordance with the provisions of this Part, the district shall make reasonable efforts to assign the student to such activities during hours that do not conflict with his or her academic schedule.

(6) The hours of participation by an individual in a work-study, internship, externship or other work placement that is part of the student's curriculum and that has been approved by the social services district shall be included as a work activity within the definition of unsubsidized employment, subsidized private sector employment, subsidized public sector employment or on-the-job training pursuant to subdivision (a) of this section.

(7) In no event shall the programs and activities enumerated in this Part be deemed the sole activities that a social services district may provide and require applicants for and recipients of public assistance to engage in. Any program or activity that meets the goals of this Part and is consistent with the requirements of the Labor Law and Social Services Law shall be allowed.

(8) Any social services district that establishes and provides a program or activity not herein enumerated shall set forth the requirements and structure of such program or activity in its local plan pursuant to the provisions of this Part.

(9) The social services district retains the right to determine, consistent with statute and regulations, the activity or activities to which an applicant or recipient is to be assigned.

(10) No particular assignment or opening for any activity need be created except on the determination and consent of the social services district.

(c) Educational activities and vocational educational training.

(1) A social services official shall make available vocational educational training and educational activities in accordance with an assessment conducted and the employability plan prepared pursuant to the requirements of sections 385.6 and 385.7 of this Part. Such activities may include, but need not be limited to:

(i) vocational educational training, which may include but not be limited to organized educational programs offering a sequence of courses which are directly related to the preparation of individuals for current or emerging occupations requiring other than a baccalaureate or advanced degree. Such programs may include competency-based applied learning which contributes to an individual's academic knowledge, higher-order reasoning, and problem-solving skills, work attitudes, general employability skills, and the occupational-specific skills necessary for economic independence. Such term may also include applied technology education;

(a) when a social services district contracts with a proprietary vocational school to provide vocational educational training to individuals assigned in accordance with the provisions of this section, not more than 25 percent of the duration of such program can be devoted to preparation for a high school equivalency or to English as a second language;

(b) instructors employed by proprietary schools to prepare individuals for a high school equivalency certificate shall meet experience requirements established in regulation by the Commissioner of Education;

(c) individuals in need of basic literacy programs shall be referred to basic and remedial education rather than to vocational proprietary schools;

(ii) high school education or education designed to prepare a participant for a high school equivalency certificate;

(iii) basic and remedial education;

(iv) education in English proficiency;

(v) post-secondary education;

(a) such post-secondary education must be necessary to the attainment of the participant's employment goal, as set forth in the employability plan required pursuant to sections 385.6 and 385.7 of this Part. Such goal must relate directly to obtaining useful employment in a recognized occupation;

(b) enrollment may be in the following types of educational institutions:

(1) community colleges and two-year colleges;

(2) four-year colleges; provided, however, that the course of instruction for which an individual is enrolled is limited to a two-year degree granting program;

(3) licensed trade schools; or

(4) registered business schools.

(vi) financial literacy instruction.

(2) Except as otherwise provided in this subdivision and as resources permit and pursuant to a local plan prepared in accordance with the requirements of section 385.10 of this Part, a social services official must assign to educational activities an individual who has not attained 20 years of age and who has not obtained a high school diploma or its equivalent.

(3) Notwithstanding the requirements of this subdivision, an individual between the ages of 16 and 18 years of age may be excused from school attendance requirements if:

(i) the decision not to require school attendance is based upon an individual assessment which indicates that further attendance is unlikely to result in attainment of a high school diploma or its equivalent based upon consideration of the individual's aptitude and other factors such as grade completion; and

(ii) he/she participates in either another educational activity other than one which would lead to the attainment of a high school diploma or its equivalent or in job skills training appropriate to and designed for youths.

(4) Notwithstanding the requirements of this subdivision, the social services official shall assign individuals 18 and 19 years of age to activities other than those described in this subdivision if such official makes a determination, based upon an assessment and employability plan that educational and vocational educational activities are not appropriate or if such individual has failed to make satisfactory progress in educational activities.

(5) An individual who is assigned to educational activities consistent with the employment goals identified in the employability plan developed pursuant to section 385.6 or 385.7 of this Part shall not be assigned to any other activity that might interfere with attendance at class; provided, however, that a social services official may periodically reevaluate an individual's employment plan and having given due consideration to the individual's progress in the current, and if applicable, prior program make assignments to other activities in order to meet participation rates established in accordance with the provisions of section 385.8 of this Part.

(6) For individuals assigned by the district to participate in educational activities pursuant to this section and consistent with the individual's assessment and employability plan, the district may report supervised homework time and up to one hour of unsupervised homework time for each hour of class time, provided that the total homework time reported for participation does not exceed the hours required or advised by the respective educational program.

(7) An adult member of a two-parent family may be required by a social services official to participate in education activities consistent with the employment goals contained in his/her employability plan.

(8) Nothing in this subdivision shall be construed to supersede the eligibility requirements of teen parents as set forth in this Title.

(d) Work experience.

(1) Work experience programs meeting State and Federal requirements may be established by social services districts.

(2) Work experience programs may include the performance of work for a Federal office or agency, county, city, village or town or for the State or in the operation of or in an activity of a non-profit agency or institution.

(3) A recipient may be assigned to participate in such work experience program only if:

(i) appropriate Federal and State standards of health, safety and other work conditions are maintained;

(ii) the number of hours an individual assigned to work experience activities authorized pursuant to this section may be required to participate in such assignment shall not 9 exceed a number which equals the amount of assistance payable with respect to such individual's household (inclusive of the value of SNAP received by such household, if any) divided by the higher of:

(a) the Federal minimum wage; or

(b) the State minimum wage;

(iii) such recipients are provided appropriate workers' compensation or equivalent protection for on-the-job injuries and tort claims protection on the same basis, but not necessarily at the same benefit level, as they are provided to other persons in the same or similar positions, while participating in work experience activities under this section;

(iv) the project to which the participant is assigned serves a useful public purpose in fields such as health, social services, environmental protection, education, urban and rural development and redevelopment, welfare, recreation, operation of public facilities, public safety and child day care;

(v) such assignment would not result in:

(a) the displacement of any currently employed worker or loss of position (including partial displacement such as reduction in the hours of non-overtime work, wages or employment benefits) or result in the impairment of existing contracts for services or collective bargaining agreements;

(b) the assignment of a participant or the filling of a position when any other person is on layoff from the same or any equivalent position or the employer has terminated the employment of any regular employee or otherwise reduced its workforce with the effect of filling the vacancy so created with a participant assigned pursuant to this section;

(c) any infringement of the promotional opportunities of any currently employed person;

(d) the performance, by such participant, of a substantial portion of the work ordinarily and actually performed by regular employees;

(e) the loss of a bargaining unit position as a result of work experience participants performing, in part or in whole, the work normally performed by the employee in such position; or

(f) such assignment is not at any work site at which the regular employees are on a legal strike against the employer or are being subjected to lock out by the employer.

(4) Public employers participating in work experience programs (or the social services official, pursuant to an agreement established between any such employer and the social services official) shall publish on a monthly basis a report summarizing the employer's work experience program for the month.

(i) Such monthly report shall include, at a minimum, summary information regarding the agencies or departments where participants are assigned, work locations, job duties and assignments, hours worked and period worked and shall be provided to the certified collective bargaining representative of public employees at such employer and may not be disclosed to any other party.

(ii) Such certified collective bargaining representative shall take reasonable steps to protect the confidentiality of such information and shall take reasonable steps to prevent disclosure of same to non-authorized persons.

(iii) Reports provided pursuant to this section shall contain a warning against re-disclosure and asserting the confidentiality of the information therein provided.

(5) In assigning to work experience a recipient who is a non-graduate student attending CUNY, SUNY or other approved non-profit education, training or vocational rehabilitation agency, the social services district shall:

(i) after consultation with officials of CUNY, SUNY or other non-profit education, training or vocational rehabilitation agency, assign the student to a work experience site on campus where the recipient is enrolled if a work experience assignment approved by the social services official is available. Where such work experience assignment is not available, the social services district shall, to the extent possible, assign the student to a work experience site within reasonable proximity to the campus where the recipient is enrolled. Provided, however, in order to qualify for a work experience assignment on-campus, or in close proximity to campus, a student must have a cumulative C average, or its equivalent. The social services district may waive the requirement that the student have a cumulative C average or its equivalent for undue hardship based on:

(a) the death of a relative of the student;

(b) the personal injury or illness of the student; or

(c) any other extenuating circumstances; and

(ii) not unreasonably assign the student to participate in work experience during hours that conflict with the student's academic schedule.

(e) Job search activities.

(1) Each applicant for or recipient of public assistance shall, upon request of the social services official, demonstrate that he/she is engaged in an active and continuing effort to achieve self-sufficiency.

(2) Such effort shall include but not be limited to an active and continuing search for employment, or for persons otherwise exempt in accordance with sections 385.2 and 385.3 of this Part, and where deemed appropriate by the social services official, activities that foster preparation for employment.

(3) Each such applicant or recipient shall have an affirmative duty to accept any offer of lawful employment in which he or she may engage.

(4) The failure of a social services district to assign applicants and recipients to activities pursuant to this Part shall not relieve such persons from the requirements of this subdivision.

(5)

(i) An applicant who fails to comply with the requirements of this subdivision shall be ineligible for public assistance; for purposes of this subparagraph, the term applicant shall mean the entire applicant household.

(ii) A recipient who fails to comply with the requirements of this subdivision shall be subject to sanction in accordance with the provisions of sections 385.11 and 385.12 of this Part.

(6) Supervised job search activities shall be described in the local plan.

(f) Subsidized public sector employment programs.

(1) A social services official may establish subsidized public sector employment programs for public assistance recipients including, but not limited to, grant diversion programs, which may be supported wholly or in part with public assistance funds. Such programs shall be established through agreements between social services districts and employers; provided, however, that, if appropriate, the office may act on behalf of one or more social services districts in establishing such agreements.

(2) Programs may include, but need not be limited to, on-the-job training programs which reimburse employers in part or in whole for the cost of training public assistance recipients through wage subsidies.

(3) The social services official or the office is authorized to transfer public assistance funds to employers through written agreements developed and executed in accordance with office regulations.

(4) A recipient may be assigned to a subsidized public sector employment activity only if:

(i) the conditions of employment including such factors as the type of work, geographical region and proficiency of the participant are appropriate and reasonable;

(ii) the recipient is deemed an employee for purposes of the applicable collective bargaining and labor laws and receives the same benefits and protections as existing employees similarly situated (working a similar length of time and doing similar work) receive pursuant to the provisions of law and any applicable collective bargaining agreement or otherwise as made available to such existing employees;

(iii) the social services official shall ensure that any such program agreement contains adequate provisions for the prompt resolution of disputes concerning participation in the program and the obligations and benefits associated with it;

(iv) nothing contained in this section shall be deemed to affect, modify or abridge a participant's right to a fair hearing pursuant to Part 358 of this Title or representation thereat by counsel or, if applicable, the participant's collective bargaining representative.

(5) A participant employed by an employer subject to the Civil Service Law or subject to rules consistent with such law shall be appointed to an appropriate classified position. Notwithstanding any other provision of law, rule or regulation, such position shall be deemed to be in the non-competitive class of the classified service only while such participant is serving in the position.

(6) No employee of the participating employer may be displaced by any recipient employed pursuant to this subdivision. For the purpose of this subdivision, the term displacement shall include partial displacement, such as a reduction in the customary hours of work (including overtime), wages, or employment benefits.

(7) No participant shall be employed:

(i) if any other employee of the employer is available for reinstatement, recall or reemployment following a leave of absence, furlough, layoff or suspension from the same or any substantially equivalent job;

(ii) when the employer has terminated the employment of any regular employee or otherwise reduced its work force with the intention of filling the vacancy or vacancies so created by hiring a participant whose wages are subsidized under this program;

(iii) when the employee organization representing employees of the employer is engaged in a strike against the employer or such employees have been locked-out by the employer; or

(iv) where such employment results in the loss of a bargaining unit position as a result of assigned individuals performing, in part or in whole, the work normally performed by the employee in such position.

(8) No position may be created that will infringe in any way upon the promotional opportunities of currently employed individuals or individuals currently engaged in an approved apprenticeship training program.

(9) No participant shall remain in a position if another employee is eligible for promotion from an eligible list to that position. An employer shall, at least 10 days prior to filling a position with a participant, notify any employee organization that represents employees of the employer who are engaged in similar work or training in the same or substantially equivalent job as that in which the placement is to be made, that it intends to make a placement pursuant to the terms of this subdivision.

(10) Where an employee organization represents employees of the employer who are engaged in similar work in the same or substantially equivalent job as that proposed to be funded under this program, an opportunity shall be provided for such organization to comment on the proposed placement of the participant or the administration of the program and the social services official shall respond to such comments within 10 days of receipt of such comments.

(11) Employers are prohibited from using public assistance funds to encourage or discourage membership in, or participation in the activities of, any employee organization, and each employer shall provide to the social services district assurances that no such funds will be used for such purposes.

(12) Nothing herein shall be construed to affect, modify, or otherwise abridge any provision of the Civil Service Law.

(g) Subsidized private sector and not-for-profit employment programs.

(1) A social services district may establish subsidized private sector employment programs for public assistance recipients including, but not limited to, grant diversion programs, which may be supported wholly or in part with public assistance funds. Such programs shall be established through agreements between social services districts and employers, including not-for-profit employers; provided, however, that, if appropriate, the office may act on behalf of one or more social services districts in establishing such agreements.

(2) Programs may include, but need not be limited to, on-the-job training programs which reimburse employers in part or in whole for the cost of training public assistance recipients through wage subsidies.

(3) The social services official or the office is authorized to transfer public assistance funds to employers through written agreements developed and executed in accordance with office regulations.

(4) A recipient may be placed in a subsidized private sector or not-for-profit employment activity only if:

(i) the conditions of employment including such factors as the type of work to be performed, the geographic location of the job, and the qualifications of the participant are appropriate and reasonable;

(ii) the recipient is deemed an employee for purposes of the applicable collective bargaining and labor laws and receives the same benefits and protections as an employee similarly situated (working a similar length of time and doing similar work) receives pursuant to the provisions of law, an applicable collective bargaining agreement or otherwise as made available to the employees of the employer;

(iii) no employee of the participating employer is displaced by any recipient hired pursuant to this subdivision. For the purpose of this subdivision, the term displacement shall include partial displacement, such as a reduction in the customary hours of work (including overtime), wages, or employment benefits;

(iv) no participant is hired:

(a) if any other employee of the employer is available for reinstatement, recall or reemployment following a leave of absence, furlough, layoff or suspension from the same or any substantially equivalent job; or

(b) when the employer has terminated the employment of any regular employee or otherwise reduced its work force with the intention of filling the vacancy or vacancies so created by hiring a participant whose wages are subsidized under this program; or

(c) when the employee organization representing employees of the employer is engaged in a strike against the employer or such employees have been locked-out by the employer; or

(d) when such hiring will result in the loss of a bargaining unit position as a result of assigned individuals performing, in part or in whole, the work normally performed by the employee in such position;

(v) no job is created that will infringe in any way upon the promotional opportunities of current employees or individuals currently engaged in an approved apprenticeship training program;

(vi) no participant shall remain in a job if another employee is eligible for promotion to that job. An employer shall, at least 10 days prior to filling a position with a participant, notify any employee organization that represents employees who are engaged in similar work or training in the same or substantially equivalent jobs as those on which the placement is to be made, that it intends to make a placement pursuant to the terms of this section;

(vii) where an employee organization represents employees of the employer who are engaged in similar work in the same or substantially equivalent jobs as those proposed to be funded under this program, an opportunity is provided for such organization to comment on the proposed placement of participants or the administration of the program and the social services official or his/her designee shall respond to such comments within 10 days of receipt of such comments;

(viii) employers are prohibited from using public assistance funds to encourage or discourage membership in, or participation in the activities of, any employee organization and each employer shall provide to the social services district assurances that no such funds will be used for such purposes.

(5) The social services official shall require every private or not-for-profit employer that intends to hire one or more assigned individuals to certify to the social services district that such employer has not, in the past five years, been convicted of a felony or a misdemeanor the underlying basis of which involved workplace safety and health or labor standards. Such employer shall also certify as to all violations issued by the State Department of Labor within the past five years. The social services official in the social services district in which the participant is placed shall determine whether there is a pattern of violations sufficient to render the potential employer ineligible. Employers who submit false information under this section shall be subject to criminal prosecution for filing a false instrument.

N.Y. Comp. Codes R. & Regs. Tit. 18 § 385.9

Amended New York State Register September 4, 2024/Volume XLVI, Issue 36, eff. 9/4/2024