Sec. 405. Requirements and restrictions
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Individuals in on-the-job training or individuals employed in worker training services and activities under this Act shall be compensated at the same rates, including periodic increases, as trainees or employees who are similarly situated in similar occupations by the same employer and who have similar training, experience, and skills, and such rates shall be in accordance with applicable law, but in no event less than the higher of the rate specified in section 6(a)(1) of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 206(a)(1) ) or the applicable State or local minimum wage law. The reference in subparagraph
(A)to section 6(a)(1) of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 206(a)(1) ) shall not be applicable for individuals in other territorial jurisdictions in which section 6(a)(1) does not apply. Allowances, earnings, and payments to individuals participating in worker training services and activities under this Act shall not be considered as income for the purposes of determining eligibility for and the amount of income transfer and in-kind aid furnished under any Federal or federally assisted program based on need, other than as provided under the Social Security Act ( 42 U.S.C. 301 et seq. ). No funds provided under this Act shall be used to pay the wages of incumbent employees during their participation in economic development activities provided through a program providing worker training services and activities. A participant in a worker training service or activity authorized under this Act (referred to in this section as a specified activity ) shall not displace (including a partial displacement, such as a reduction in the hours of nonovertime work, wages, or employment benefits) any currently employed employee (as of the date of the participation). A specified activity shall not impair an existing contract for services or collective bargaining agreement, and no such activity that would be inconsistent with the terms of a collective bargaining agreement shall be undertaken without the written concurrence of the labor organization and employer concerned. A participant in a specified activity shall not be employed in a job if— any other individual is on layoff from the same or any substantially equivalent job; the employer has terminated the employment of any regular employee or otherwise reduced the workforce of the employer with the intention of filling the vacancy so created with the participant; or the job is created in a promotional line that will infringe in any way upon the promotional opportunities of currently employed individuals (as of the date of the participation). Health and safety standards established under Federal and State law otherwise applicable to working conditions of employees shall be equally applicable to working conditions of participants engaged in specified activities. To the extent that a State workers’ compensation law applies, workers’ compensation shall be provided to participants on the same basis as the compensation is provided to other individuals in the State in similar employment. Individuals in on-the-job training, or individuals employed through worker training services and activities, under this Act, shall be provided benefits and working conditions at the same level and to the same extent as other trainees or employees working a similar length of time and doing the same type of work. Interested members of the public, including representatives of businesses and of labor organizations, shall be provided an opportunity to submit comments to the Secretary with respect to programs and activities proposed to be funded under title III. Each recipient of funds under this Act shall provide to the Secretary assurances that none of such funds will be used to assist, promote, or deter union organizing. Each recipient of funds under this Act shall establish and maintain a procedure for grievances or complaints alleging violations of the requirements of this Act from participants and other interested or affected parties. Such procedure shall include an opportunity for a hearing and be completed within 60 days after the filing of the grievance or complaint. The Secretary shall investigate an allegation of a violation described in paragraph
(1)if— a decision relating to such violation has not been reached within 60 days after the date of the filing of the grievance or complaint and either party appeals to the Secretary; or a decision relating to such violation has been reached within such 60 days and the party to which such decision is adverse appeals such decision to the Secretary. The Secretary shall make a final determination relating to an appeal made under subparagraph
(A)not later than 120 days after receiving such appeal. Remedies that may be imposed under this section for a violation of any requirement of this Act shall be limited— to suspension or termination of payments under this Act; to prohibition of placement of a participant with an employer that has violated any requirement under this Act; where applicable, to reinstatement of an employee, payment of lost wages and benefits, and reestablishment of other relevant terms, conditions, and privileges of employment; and where appropriate, to other equitable relief. Nothing in paragraph
(3)shall be construed to prohibit a grievant or complainant from pursuing a remedy authorized under another Federal, State, or local law for a violation of this Act. No funds provided under this Act shall be used, or proposed for use, to encourage or induce the relocation of a business or part of a business if such relocation would result in a loss of employment for any employee of such business at the original location and such original location is within the United States. No funds provided under this Act for a worker training service or activity shall be used for customized or skill training, on-the-job training, or company-specific assessments of job applicants or employees, for any business or part of a business that has relocated, until the date that is 120 days after the date on which such business commences operations at the new location, if the relocation of such business or part of a business results in a loss of employment for any employee of such business at the original location and such original location is within the United States. If the Secretary determines that a violation of paragraph
(1)or
(2)has occurred, the Secretary shall require the State that has violated such paragraph to repay to the United States an amount equal to the amount expended in violation of such paragraph. No funds available under this Act shall be used for employment generating activities, economic development activities, investment in revolving loan funds, capitalization of businesses, investment in contract bidding resource centers, and similar activities that are not directly related to training for eligible individuals under this Act. No funds available under this Act shall be used for foreign travel. Notwithstanding any other provision of law, a recipient of funds under this Act shall not be prohibited by the Federal Government from— testing participants in worker training services and activities for the use of controlled substances; and sanctioning such participants who test positive for the use of such controlled substances. In sanctioning participants in worker training services and activities under this Act who test positive for the use of controlled substances— with respect to the first occurrence for which a participant tests positive, the recipient of funds under this Act may exclude the participant from the service or activity for a period not to exceed 6 months; and with respect to the second occurrence and each subsequent occurrence for which a participant tests positive, the recipient may exclude the participant from the service or activity for a period not to exceed 2 years. The testing of participants and the imposition of sanctions under this subsection shall be subject to expeditious appeal in accordance with due process procedures established by the State or, in the case of other direct recipients, in accordance with regulations established by the Secretary. A recipient of funds under this Act shall establish procedures for testing participants for the use of controlled substances that ensure a maximum degree of privacy for the participants. In the testing and sanctioning of participants in worker training services and activities for the use of controlled substances in accordance with this subsection, the only Federal funds that a State may use are the amounts made available for the administration of statewide worker training services and activities under sections 313(c), 333(c), and 373(d), as applicable based on the worker training service or activity.
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