Nondisplacement of Employees or Volunteers and Nonduplication of Services

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1 Nondisplacement of Employees or Volunteers and Nonduplication of Services Source: Provisions and Regulations available at: Summary of Nondisplacement and Nonduplication AmeriCorps should be regarded as on opportunity to host American citizens or permanent legal alien residents who wish to serve their country through public service. An applicant would identify an unmet community need, design a program and activities that would meet said need and, if funded, would recruit and train the national service members to address the previously unmet need. AmeriCorps is not a grant program that should be regarded merely as a funding stream for services already being provided, or for employees already being funded. AmeriCorps programs are not intended to replace services already being offered in a community (either by the applicant or a State or local government agency). An employee may not be replaced, in whole or in part, by an AmeriCorps member. An AmeriCorps member may not perform any services or activities that would otherwise be performed by an employee as a part of an employee s assigned duties. Further, the services of an AmeriCorps member may not impact: the hiring of a worker or the possible promotion of an employee. Nor may members perform services or duties that have been performed by or were assigned to any (i) Presently employed worker; (ii) employee who recently resigned or was discharged; (iii) employee who is subject to a reduction in force or who has recall rights pursuant to a collective bargaining agreement or applicable personnel procedures; (iv) employee who is on leave (terminal, temporary, vacation, emergency, or sick); or (v) employee who is on strike or who is being locked out. In addition if services are being provided by regular volunteers those volunteers cannot be replaced by AmeriCorps members. Members who are made to displace an employee either in whole or in part may file a grievance. Further a program s evaluation and future funding could be impacted if they are found to engage in prohibited displacement or duplication. (Please see the following pages for source documentation regarding these issues.)

2 Provisions, page 8 Planning for the Term of Service. The grantee must develop member positions that provide for meaningful service activities and performance criteria that are appropriate to the skill level of members. The grantee is responsible for ensuring that the positions do not include or put the AmeriCorps member in a situation in which the member is at risk for engaging in any prohibited activity (see 45 CFR ), activity that would violate the non duplication and non displacement requirements (see 45 CFR ), or prohibited fundraising activity (see 45 CFR ). The grantee must accurately and completely describe the activities to be performed by each member in a position description, to be provided to the Corporation on request. The grantee must ensure that each member has sufficient opportunity to complete the required number of hours to qualify for a post service education award. In planning for the member s term of service, the grantee must account for holidays and other time off, and must provide each member with sufficient opportunity to make up missed hours Provisions, page Fees for Service. When using assistance under this grant, the grantee may not enter into a contract for or accept fees for service performed by members when: a. The service benefits a for profit entity, b. The service falls within the other prohibited activities set forth in these grant provisions, or c. The service violates the non displacement Provisions of the Act set forth in these grant provisions. Home > Regulations > 2540 PART 2540 GENERAL ADMINISTRATIVE PROVISIONS > Subpart A Requirements Concerning the Distribution and Use of Corporation Assistance > Subpart A Requirements Concerning the Distribution and Use of Corporation Assistance Subpart A Requirements Concerning the Distribution and Use of Corporation Assistance What restrictions govern the use of Corporation assistance? (a) Supplantation. Corporation assistance may not be used to replace State and local public funds that had been used to support programs of the type eligible to receive Corporation support. For any given program, this condition will be satisfied if the aggregate non Federal public expenditure for that program in the fiscal year that support is to be provided is not less than the previous fiscal year. (b) Religious use. Corporation assistance may not be used to provide religious instruction, conduct worship services, or engage in any form of proselytization. (c) Political activity. Corporation assistance may not be used by program participants or staff to assist, promote, or deter union organizing; or finance, directly or indirectly, any activity designed to influence the outcome of a Federal, State or local election to public office. (d) Contracts or collective bargaining agreements. Corporation assistance may not be used to impair existing contracts for services or collective bargaining agreements.

3 (e) Nonduplication. Corporation assistance may not be used to duplicate an activity that is already available in the locality of a program. And, unless the requirements of paragraph (f) of this section are met, Corporation assistance will not be provided to a private nonprofit entity to conduct activities that are the same or substantially equivalent to activities provided by a State or local government agency in which such entity resides. (f) Nondisplacement. (1) An employer may not displace an employee or position, including partial displacement such as reduction in hours, wages, or employment benefits, as a result of the use by such employer of a participant in a program receiving Corporation assistance. (2) An organization may not displace a volunteer by using a participant in a program receiving Corporation assistance. (3) A service opportunity will not be created under this chapter that will infringe in any manner on the promotional opportunity of an employed individual. (4) A participant in a program receiving Corporation assistance may not perform any services or duties or engage in activities that would otherwise be performed by an employee as part of the assigned duties of such employee. (5) A participant in any program receiving assistance under this chapter may not perform any services or duties, or engage in activities, that (i) Will supplant the hiring of employed workers; or (ii) Are services, duties, or activities with respect to which an individual has recall rights pursuant to a collective bargaining agreement or applicable personnel procedures. (6) A participant in any program receiving assistance under this chapter may not perform services or duties that have been performed by or were assigned to any (i) Presently employed worker; (ii) Employee who recently resigned or was discharged; (iii) Employee who is subject to a reduction in force or who has recall rights pursuant to a collective bargaining agreement or applicable personnel procedures; (iv) Employee who is on leave (terminal, temporary, vacation, emergency, or sick); or (v) Employee who is on strike or who is being locked out.

4 Home > Statute > SUBCHAPTER I NATIONAL AND COMMUNITY SERVICE STATE GRANT PROGRAM > Division F Administrative Provisions > Nonduplication and nondisplacement Nonduplication and nondisplacement (a) Nonduplication (1) In general Assistance provided under the national service laws shall be used only for a program that does not duplicate, and is in addition to, an activity otherwise available in the locality of such program. (2) Private nonprofit entity Assistance made available under the national service laws shall not be provided to a private nonprofit entity to conduct activities that are the same or substantially equivalent to activities provided by a State or local government agency that such entity resides in, unless the requirements of subsection (b) of this section are met. (b) Nondisplacement (1) In general An employer shall not displace an employee, position, or volunteer (other than a participant under the national service laws), including partial displacement such as reduction in hours, wages, or employment benefits, as a result of the use by such employer of a participant in a program receiving assistance under the national service laws. (2) Service opportunities A service opportunity shall not be created under the national service laws that will infringe in any manner on the promotional opportunity of an employed individual (3) Limitation on services (A) Duplication of services A participant in a program receiving assistance under the national service laws shall not perform any services or duties or engage in activities that would otherwise be performed by an employee as part of the assigned duties of such employee. (B) Supplantation of hiring A participant in any program receiving assistance under the national service laws shall not perform any services or duties, or engage in activities, that (i) will supplant the hiring of employed workers; or

5 (ii) are services, duties, or activities with respect to which an individual has recall rights pursuant to a collective bargaining agreement or applicable personnel procedures. (C) Duties formerly performed by another employee A participant in any program receiving assistance under the national service laws shall not perform services or duties that have been performed by or were assigned to any (i) presently employed worker; (ii) employee who recently resigned or was discharged; (iii) employee who (I) is subject to a reduction in force; or (II) has recall rights pursuant to a collective bargaining agreement or applicable personnel procedures; (iv) employee who is on leave (terminal, temporary, vacation, emergency, or sick); or (v) employee who is on strike or who is being locked out. (Pub. L , title I, 177, Nov. 16, 1990, 104 Stat. 3163; Pub. L , title I, 117, title IV, 402(b)(1), Sept. 21, 1993, 107 Stat. 864, 918; Pub. L , div. A, 101(f) [title VIII, 405(d)(42)(A)], Oct. 21, 1998, 112 Stat , ; Pub. L , title I, 1605, Apr. 21, 2009, 123 Stat ) Home > Regulations > 2522 PART 2522 AMERICORPS PARTICIPANTS, PROGRAMS, AND APPLICANTS > Subpart E Evaluation Requirements What is the purpose of this subpart? > How will the Corporation evaluate individual AmeriCorps programs? How will the Corporation evaluate individual AmeriCorps programs? The Corporation will evaluate programs based on the following: (a) The extent to which the program meets the objectives established and agreed to by the grantee and the Corporation before the grant award; (b) The extent to which the program is cost effective; and (c) The effectiveness of the program in meeting the following legislative objectives: (1) Providing direct and demonstrable services and projects that benefit the community by addressing educational, public safety, human, or environmental needs;

6 (2) Recruiting and enrolling diverse participants consistent with the requirements of part 2540 of this chapter, based on economic background, race, ethnicity, age, gender, marital status, education levels, and disability; (3) Promoting the educational achievement of each participant based on earning a high school diploma or its equivalent and future enrollment in and completion of increasingly higher levels of education; (4) Encouraging each participant to engage in public and community service after completion of the program based on career choices and participation in other service programs; (5) Promoting an ethic of active and productive citizenship among participants; (6) Supplying additional volunteer assistance to community agencies without providing more volunteers than can be effectively utilized; (7) Providing services and activities that could not otherwise be performed by employed workers and that will not supplant the hiring of, or result in the displacement of, employed workers; and (8) Other criteria determined and published by the Corporation. Home > Regulations > 2540 PART 2540 GENERAL ADMINISTRATIVE PROVISIONS > Subpart B Requirements Directly Affecting the Selection and Treatment of Participants > What grievance procedures must recipients of Corporation assistance establish Members may file a grievance (f) Remedies. Remedies for a grievance filed under a procedure established by a recipient of Corporation assistance may include (1) Prohibition of a placement of a participant; and (2) In grievance cases where there is a violation of nonduplication or nondisplacement requirements and the employer of the displaced employee is the recipient of Corporation assistance (i) Reinstatement of the employee to the position he or she held prior to the displacement; (ii) Payment of lost wages and benefits; (iii) Re establishment of other relevant terms, conditions and privileges of employment; and (iv) Any other equitable relief that is necessary to correct any violation of the nonduplication or nondisplacement requirements or to make the displaced employee whole.

7 Home > Statute > SUBCHAPTER I NATIONAL AND COMMUNITY SERVICE STATE GRANT PROGRAM > Division F Administrative Provisions > Evaluation (g) Program objectives The Corporation shall ensure that programs that receive assistance under division C of this subchapter are evaluated to determine their effectiveness in (1) recruiting and enrolling diverse participants in such programs, consistent with the requirements of section of this title, based on economic background, race, ethnicity, age, marital status, education levels, and disability; (2) promoting the educational achievement of each participant in such programs, based on earning a high school diploma or the equivalent of such diploma and the future enrollment and completion of increasingly higher levels of education; (3) encouraging each participant to engage in public and community service after completion of the program based on career choices and service in other service programs such as the Volunteers in Service to America Program and National Senior Service Corps programs established under the Domestic Volunteer Service Act of 1973 (42 U.S.C et seq.), the Peace Corps (as established by the Peace Corps Act (22 U.S.C et seq.)), the military, and part time volunteer service; (4) promoting of positive attitudes among each participant regarding the role of such participant in solving community problems based on the view of such participant regarding the personal capacity of such participant to improve the lives of others, the responsibilities of such participant as a citizen and community member, and other factors; (5) enabling each participant to finance a lesser portion of the higher education of such participant through student loans; (6) providing services and projects that benefit the community; (7) supplying additional volunteer assistance to community agencies without overloading such agencies with more volunteers than can effectively be utilized; (8) providing services and activities that could not otherwise be performed by employed workers and that will not supplant the hiring of, or result in the displacement of, employed workers or impair the existing contracts of such workers; and (9) attracting a greater number of citizens to engage in service that benefits the community.

8 Home > Provisions > V. D. PROGRAM INCOME V. D. PROGRAM INCOME 1. General. Income, including fees for service earned as a direct result of the grant funded program activities during the award period, must be retained by the grantee and used to finance the grant s non Corporation share. 2. Excess Program Income. Program income earned in excess of the amount needed to finance the grantee share must follow the appropriate requirements of 45 CFR , 2 CFR Part 225, 2 CFR Part 215, or 2 CFR Part 220 and be deducted from total claimed costs. Grantees that earn excess income must specify the amount of the excess in the comment box on the financial report. 3. Fees for Service. When using assistance under this grant, the grantee may not enter into a contract for or accept fees for service performed by members when: a. The service benefits a for profit entity, b. The service falls within the other prohibited activities set forth in these grant provisions, or c. The service violates the non displacement Provisions of the Act set forth in these grant provisions.