A. In this regulation, the following terms have the meanings indicated:
(1) "Displacement" means employing or assigning a subsidized participant when:
(a) The employer has terminated the employment of an employee, or the employee's current position, or otherwise caused an involuntary reduction in its work force in order to fill the vacancy with a subsidized participant;
(b) An individual is hired while another person is on layoff, including seasonal layoff, from the same or substantially equivalent position;
(c) The employer has reduced the hours of an employee in the same or substantially equivalent position to less than full time in order to employ or assign a subsidized participant; or
(d) The employment or assignment results in the impairment of an existing contract for services.
(2) "Employer" means a person or government entity which employs at least one individual within the State.
(3) Subsidized Employment.
(a) "Subsidized employment" means employment in the public or private sector which is supported in part by federal or State funds for a limited time.
(b) "Subsidized employment" does not include employment for which an employer receives a tax credit.
(c) "Subsidized employment" includes benefit diversion in which the participant's cash assistance and food stamp benefits are diverted to an employer to subsidize compensation paid to the participant.
(4) "Subsidized participant" means an adult in a family receiving TCA under FIP who is engaged in subsidized employment or work experience.
(5) "Unsubsidized employment" means employment in the public or private sector which is:
(a) Not supported by federal or State FIP funds; and
(b) Employment which is an arrangement solely between the employer and the employee.
(6) "Work experience" means time-limited preparation for employment in a public or private work setting.
B. Work experience participants:
(1) Are not employees and remain recipients of TCA, Medical Assistance, and, in many cases, food stamps; and
(2) May receive an expense allowance but not wages.
C. A TCA recipient may fill a vacant employment position to engage in a work activity.
D. A TCA recipient may not be employed or assigned in a work activity funded in whole or in part with federal funds or with State funds which results in the displacement of an employee.
E. Work activities subject to this regulation include:
(1) Unsubsidized employment;
(2) Subsidized employment;
(3) Subsidized public sector employment;
(4) Work experience;
(5) On-the-job training; and
(6) Community service.
F. An employee who feels employment was lost due to displacement may initiate a grievance by presenting:
(1) The complaint to the local department in writing not later than 30 calendar days after the:
(a) Alleged cause of the complaint; or
(b) Employee knew or should have known of the alleged cause of complaint; and
(2) Information to the local department to support the allegation that the employee was displaced.
G. The local department shall:
(1) Schedule a conference with the employee, or with the employer and the employee, within 10 calendar days after receipt of the complaint;
(2) Within 15 calendar days from the date of the conference with the employee:
(a) Determine whether displacement occurred and send written notice to the employee and employer of the local department decision; and
(b) Notify the employee and employer in writing that, if either disagrees with the decision, either has a right to request a conference before the Welfare Displacement Review Panel which shall be comprised of:
(i) Two representatives from the Department;
(ii) One representative from the Department of Labor, Licensing, and Regulation; and
(iii) Two public representatives appointed by the Secretary.
H. A written request under §G(2)(b) of this regulation shall be filed with the Family Investment Administration not later than 15 days from the date of the local department decision.
I. The Welfare Displacement Review Panel shall:
(1) Hold a conference with the employer and employee within 30 days of receipt of the request; and
(2) Within 30 days from the date of the conference:
(a) Render a decision upholding, reversing, or modifying the local department decision;
(b) Notify the employee, the employer, and the local department, in writing, of the panel's decision; and
(c) Give each employee and employer written notification that, if either disagrees with the Welfare Displacement Review Panel's decision, each has a right to request an administrative hearing in the same manner that a recipient would request an administrative hearing under COMAR 07.01.04.
J. Office of Administrative Hearings (OAH).
(1) The OAH shall conduct the hearing in accordance with State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland, COMAR 28.02.01 and 07.01.04, and this regulation.
(2) Notice of the hearing shall be sent to the parties at least 15 days before the hearing and shall advise the parties of the right to be represented by a lawyer or other individual at the hearing.
(3) A party may examine the Department's record for the purpose of discovering information pertinent to the appeal, if information the Department is required to keep confidential is protected.
(4) A hearing is open to the public.
(5) The employee bears the burden of proof.
(6) The administrative law judge shall:
(a) Determine whether displacement occurred;
(b) Issue the final administrative decision not later than 90 days after the date of the request for the hearing; and
(c) Send a copy of the decision to the parties and to the local department.
(7) The decision of the administrative law judge is:
(a) Binding on the local department; and
(b) Subject to review by the circuit court.
K. Upon a final finding of displacement in the grievance process, the local department may:
(1) End the subsidy in the case of subsidized employment; and
(2) Remove the participant from work experience, on-the-job training, or community service.