Revised Part 1635 Certification Form for Part-Time Employees

Ronald S. Flagg, President
December 14, 2022

The purpose of this Program Letter is to distribute the certification form mandated by Part 1635 of the Legal Services Corporation ("LSC") regulations. The LSC Board of Directors promulgated and adopted revisions to 45 C.F.R. Part 1635--Timekeeping Requirement. This revised final rule became effective on January 1, 2022. Under the newly revised regulation, recipients of LSC funding are required to maintain certifications for a part-time employee (or employees) who also works for an organization that engages in restricted activities ("restricted activities" is defined in the regulation). The regulation no longer limits the requirement to attorneys and paralegals. This Program Letter and attached Certification Form supersede Program Letter 2000-5 and its companion form. Recipients must begin using the revised Certification Form on January 1, 2023.

The pertinent section of the revised regulation, 45 C.F.R. § 1635.4(e) states as follows:

(1) Any recipient employee subject to this part who works part-time for the recipient and part-time for an organization that engages in restricted activities shall certify in writing that the employee has not engaged in restricted activity during any time for which the employee was compensated by the recipient or has not used recipient resources to carry out restricted activities.

(2) The certification requirement does not apply to a de minimis action related to a restricted activity. Actions consistent with the de minimis standard are those that meet all or most of the following criteria: Actions that are of little substance; require little time; are not initiated by the part-time employee; and, for the most part, are unavoidable. Employees shall make the required certification on a quarterly basis using a form determined by LSC.

In completing the form, several things should be kept in mind. First, the certification must be completed by employees who are (1) part-time workers for a recipient of LSC funding, and (2) work for an organization that performs restricted activities, as defined by the LSC regulations. Second, the certification requirement does not apply to de minimis activities. Of primary import is whether the part-time employee initiates these activities. If the covered employee receives an unavoidable telephone call, this would be considered de minimis. If the covered employee places a telephone call on behalf of the restricted activity, this would be a violative activity. These certifications are to be maintained by the program rather than submitted to LSC. The regulation does not specify the period these certifications must be maintained. Pursuant to prior LSC instructions mandating retention of timekeeping records for at least three years, these records should also be maintained for at least three years. See Financial Guide (2023) at Section 2-3.

If an employee is required to certify, but is not able to do so, a statement of explanation should be prepared by that employee and attached to the form. Upon receipt of this statement of non-certification, the recipient should immediately notify the Office of the Inspector General and/or the Office of Compliance and Enforcement.

The certification form includes an optional Part C for those programs that do not have any employees who are covered by this provision. It allows you to record that it was determined that there were no covered staff during the time period. This is not required by the regulation, however, we provide it to assist you in documenting continued compliance with this regulation.

If you have any questions or comments, please contact Lora M. Rath, Director of the Office of Compliance and Enforcement at rathl@lsc.gov.

Enclosures: Certification Form