[Federal Register Volume 81, Number 243 (Monday, December 19, 2016)]
[Rules and Regulations]
[Pages 92026-92119]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-29910]
[[Page 92025]]
Vol. 81
Monday,
No. 243
December 19, 2016
Part II
Department of Labor
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Employment and Training Administration
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29 CFR Parts 29 and 30
Apprenticeship Programs; Equal Employment Opportunity; Final Rule
Federal Register / Vol. 81 , No. 243 / Monday, December 19, 2016 /
Rules and Regulations
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DEPARTMENT OF LABOR
Employment and Training Administration
29 CFR Parts 29 and 30
RIN 1205-AB59
Apprenticeship Programs; Equal Employment Opportunity
AGENCY: Employment and Training Administration, Labor.
ACTION: Final rule.
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SUMMARY: The U.S. Department of Labor (DOL or Department) is issuing
this rule to modernize the equal employment opportunity regulations
that implement the National Apprenticeship Act of 1937. The existing
regulations prohibit discrimination in registered apprenticeship on the
basis of race, color, religion, national origin, and sex, and require
that sponsors of registered apprenticeship programs take affirmative
action to provide equal opportunity in such programs. This rule updates
equal opportunity standards in part 30 to include age (40 or older),
genetic information, sexual orientation, and disability among the list
of protected bases upon which a sponsor must not discriminate; improves
and clarifies the affirmative action provisions for sponsors by
detailing with specificity the actions a sponsor must take to satisfy
its affirmative action obligations, including affirmative action for
individuals with disabilities; revises regulations to reflect changes
made in October 2008 to Labor Standards for Registration of
Apprenticeship Programs, the companion regulations governing the
conduct of registered apprenticeship programs; and improves the overall
readability of part 30 through restructuring and clarification of the
text. Wherever possible, this final rule has attempted to streamline
and simplify sponsors' obligations, while maintaining broad and
effective equal employment opportunity protections for apprentices and
those seeking entry into apprenticeship programs. The policies and
procedures of this rule promote equality of opportunity in
apprenticeship programs registered with the Department and in
apprenticeship programs registered with federally recognized state
apprenticeship agencies.
DATES: Effective date: These regulations are effective January 18,
2017.
Compliance date: Several sections in the final regulation
pertaining to equal employment and affirmative action violations
specify extended periods beyond the effective date for sponsors to come
into compliance with the rule. They are listed below, and described in
more detail in the Section-by-Section Analysis and regulatory text.
Unless otherwise indicated, sponsors must comply with the provisions of
this regulation on the effective date:
180 days after effective date: Obligations under Sec. 30.3
2 years after effective date (or 2 years after registration,
for sponsors registered after the effective date): Obligations under
Sec. Sec. 30.4(e), 30.5(b), 30.7(d)(2), 30.9, and 30.11
At first compliance review after effective date: Sec. Sec.
30.5(c), 30.6
FOR FURTHER INFORMATION CONTACT: John Ladd, Administrator, Office of
Apprenticeship, Employment and Training Administration, U.S. Department
of Labor, 200 Constitution Avenue NW., Room N-5641, Washington, DC
20210, [email protected], (202) 693-2796 (this is not a toll-
free number). Individuals with hearing or speech impairments may access
this telephone number via TTY by calling the toll-free Federal
Information Relay Service at 1-800-877-8339.
SUPPLEMENTARY INFORMATION:
Statement of Legal Authority and Background Information
The National Apprenticeship Act of 1937 authorizes the Department
to formulate and promote the furtherance of labor standards necessary
to safeguard the welfare of apprentices.\1\ The responsibility for
formulating and promoting these labor standards within the Department
lies with the Employment and Training Administration's (ETA) Office of
Apprenticeship (OA). As part of its duties, OA registers apprenticeship
programs that meet certain minimum labor standards. These standards,
set forth at 29 CFR parts 29 and 30, are intended to provide for more
uniform training of apprentices and to promote equal opportunity in
apprenticeship.
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\1\ 29 U.S.C. 50.
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The regulations at 29 CFR part 29 implement the National
Apprenticeship Act by setting forth labor standards that safeguard the
welfare of apprentices, including: Prescribing policies and procedures
concerning the registration, cancellation, and deregistration of
apprenticeship programs; the recognition of State Apprenticeship
Agencies (SAA) as Registration Agencies; and matters relating thereto.
On October 29, 2008, the Department published an amended part 29 to
provide a framework that supports an enhanced, modernized
apprenticeship system.\2\
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\2\ 73 FR 64402. These regulations can be accessed on OA's Web
site at: http://www.doleta.gov/oa/pdf/FinalRule29CFRPart29.pdf.
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Part 30 implements the National Apprenticeship Act by requiring
registered apprenticeship program sponsors to provide equal opportunity
for participation in their registered apprenticeship programs, and by
protecting apprentices and applicants for apprenticeship from
discrimination on certain protected bases. In addition, part 30 also
requires that sponsors of registered apprenticeship programs take
affirmative action to provide equal employment opportunity in such
programs.
The Department first published part 30 on December 18, 1963, by
order of the President that the Secretary of Labor, in implementing the
National Apprenticeship Act and Executive Order 10925, require that the
admission of young workers to apprenticeship programs be on a
completely nondiscriminatory basis.\3\ At that time, the regulations
prohibited discrimination based on race, color, religion, and national
origin. Nondiscrimination on the basis of sex was added in 1971, as was
the requirement for sponsors with five or more apprentices to develop
and implement a written affirmative action plan (written AAP) for
minorities.\4\ In 1978, the Department amended these regulations to
require inclusion of female apprentices in written AAPs.\5\ This rule
represents the first changes to these regulations since 1978.
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\3\ 28 FR 13775.
\4\ 36 FR 6810, Apr. 8, 1971.
\5\ 43 FR 20760, May 12, 1978.
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Apprenticeship is an earn-and-learn strategy combining on-the-job
training with related technical (classroom) instruction, blending the
practical and theoretical aspects of training for highly-skilled
occupations. Apprenticeship programs are sponsored voluntarily by a
wide range of organizations, including individual employers, employer
associations, joint labor-management organizations, and other workforce
intermediaries. As of the close of Fiscal Year 2015, there were about
21,000 program sponsors representing about 200,000 employers that offer
registered apprenticeship training to more than 455,000 apprentices.\6\
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\6\ Fiscal Year (FY) 2015 national results available at http://doleta.gov/oa/data_statistics.cfm
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Registered apprenticeship is a voluntary national system under
which the vast majority of program sponsors enter into agreements with
their
[[Page 92027]]
Registration Agencies without direct funding. Potential apprenticeship
sponsors deciding whether or not to register their programs weigh the
net benefits derived for meeting state and national standards for
registration.
There are numerous benefits to registering an apprenticeship
program with the Department or an SAA. For the business sponsor,
registration provides a structure and framework for developing skilled
workers critical to a company's success, and connection to industry,
education, and government resources for on-going management of the
program and adaptation of new technologies and practices. For example,
registered apprenticeships are automatically eligible to be listed as
Eligible Training Providers within the workforce development system,
the only such training model to have such treatment. Also, Federal
government grants for apprenticeships are available to registered
programs only. There are also economic incentives for apprenticeship
employers in terms of the wage rates that apply to apprentices for work
on projects covered by the Davis-Bacon Act and related Acts. For
apprentices, registered apprenticeship comes with education and
training without the high costs of a 4-year college education, and a
nationally-recognized credential upon completion. American communities
benefit from enhanced systems to develop skilled workers in high paying
occupations through collaborative partnerships of education, industry,
and government, working together and supporting quality training
programs.
OA oversees the National Apprenticeship System. OA serves as the
Registration Agency, and its staff members are directly responsible
for, registered apprenticeship activities in 25 States. It also
provides technical assistance and oversight to 25 SAAs in the other 25
States, in the District of Columbia, the Virgin Islands, and Guam. In
these ``SAA States,'' the SAA has requested and received recognition
from the Secretary of Labor to serve as the entity authorized to
register and oversee State and local apprenticeship programs for
Federal purposes. Therefore, in SAA States, the SAA, in accordance with
Federal regulations, serves as the Registration Agency and has
responsibility for registering apprenticeship activities for Federal
purposes.
Apprenticeship programs appear in traditional industries, such as
construction (which has historically trained the majority of
apprentices) and manufacturing, as well as in new and emerging
industries, such as health care, information and communications
technology, transportation and logistics, and energy, which are
projected to add substantial numbers of new jobs to the economy.
Apprenticeship has become increasingly attractive to workforce
policy-makers in the U.S., and more in focus after witnessing the
expansive growth in apprenticeship in some of our closest allies, such
as the United Kingdom, Canada, and Australia. U.S. policy-makers have
studied these countries as well as several other European countries,
such as Germany, Switzerland, and Austria, where apprenticeships have
been ingrained in the culture for centuries and train large percentages
of their workforce. The United States Departments of Labor, Commerce,
and Education have signed Joint Declarations of Intent to cooperate on
workforce training with both Germany \7\ and Switzerland; \8\
apprenticeship systems and strategies are featured in both of these
Joint Declarations.
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\7\ Joint Declaration of Intent between the U.S. and the Federal
Republic of Germany signed June 5, 2015 https://www.dol.gov/ilab/diplomacy/Signed%20US-Germany%20JDoI%20(English).pdf.
\8\ Joint Declaration of Intent between the U.S. and the Swiss
Confederation signed July 7-9, 2015 https://www.dol.gov/ilab/diplomacy/Switzerland-JDoI.pdf.
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In light of favorable policy research and the increased business
demand for high-quality workforce skills and competencies, the
Department substantially increased its investments in Registered
Apprenticeship in recent years.\9\ The Department's new initiative,
ApprenticeshipUSA, seeks to advance apprenticeship and build a strong
pipeline of skilled workers, critical for companies to grow their
business and compete in the global economy. The ApprenticeshipUSA
initiative is stepping up efforts to expand apprenticeship into high-
growth industries and to support a uniquely American apprenticeship
system. The Department is lifting the image and quality of Registered
Apprenticeship throughout the nation, and broadening its scope of
training and development activities into an array of diverse industries
and occupations.
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\9\ The Department awarded $175 million in American
Apprenticeship Grants in September 2015. See https://www.dol.gov/opa/media/press/eta/ETA20151762.htm. Congress also issued a
supplemental appropriation of $90 million to OA in Fiscal Year 2016,
which OA is using for new investments through ApprenticeshipUSA to
expand apprenticeship in the United States. See https://www.whitehouse.gov/the-press-office/2016/04/21/fact-sheet-investing-90-million-through-apprenticeshipusa-expand-proven (last accessed
June 22, 2016).
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Through ApprenticeshipUSA, the Department has taken steps to focus
on sector-based and industry engagement in expansion efforts, such as
promoting business engagement in the Leaders of Excellence in
Apprenticeship Development, Education, and Research (LEADERs) and the
Sectors of Excellence in Apprenticeship (SEAs) initiatives, designed to
expand the number of employers training apprentices, to increase
program quality, and to build pipelines of diverse populations into
apprenticeship.
As apprenticeship expands in the U.S., the Department remains
committed to long-standing principles of equal employment opportunity
to ensure that this expansion draws from and benefits the entire
American workforce, providing more Americans a path to good jobs and
careers with living wages that apprenticeships offer, in line with the
Administration's commitment to double and diversify apprenticeship. The
Department is also committed to using these new initiatives and
available resources, in conjunction with business, industry, and
community partners, to collaborate and build new pipelines into
apprenticeship programs, with diversity as a cornerstone of growth in
our expansion efforts.
Increasing diversity in apprenticeship will further the goals and
demonstrate support of the President's Administration's My Brother's
Keeper \10\ (MBK) Task Force, a coordinated Federal effort to address
persistent opportunity gaps faced by boys and young men of color and
ensure that all young people can reach their full potential. This rule
also builds upon programs such as the Women in Apprenticeship and
Nontraditional Occupations (WANTO) \11\ initiative, which provides
technical assistance to improve outreach, recruitment, hiring,
training, employment, and retention of women, including women of color
and women with disabilities. The Department has additionally provided
support for diversity in apprenticeship through the 2015 American
Apprenticeship Initiative grant that supported programs with a focus
upon including underrepresented populations, including women, people of
color, and individuals with disabilities.
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\10\ My Brother's Keeper initiative was announced by President
Barack Obama on February 27, 2014, https://www.whitehouse.gov/my-brothers-keeper (last accessed May 11, 2016).
\11\ The WANTO Act of 1992, Public Law 102-530, 29 U.S.C. 2501
et seq.
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Building a sustained effort to ensure that the benefits
apprenticeship programs provide are broadly available to all is a key
goal of these revised regulations. The history, demographic
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patterns, and documented experiences in apprenticeships of members of
certain underrepresented groups demonstrate the continuing obstacles to
the full participation of these groups in registered apprenticeship
programs.
In evaluating the need for this rule, OA analyzed participant
demographics in apprenticeship programs in construction and non-
construction industries and the demographics of the national labor
force. OA reviewed apprenticeship data from OA's Registered
Apprenticeship Partners Information Data System (RAPIDS) \12\ and
analyzed national labor force data from the Current Population Survey
(CPS). Using the data from these sources to compare the demographic
characteristics of the national workforce to the demographics of
individuals enrolled in apprenticeships makes clear that notable
disparities exist in apprenticeship participation and completion.
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\12\ RAPIDS includes individual, apprentice-level data from the
25 states in which OA is the Registration Agency and from the nine
SAA states that have chosen to participate. However, unless
otherwise stated, the tables and discussions of RAPIDS data are
limited to the apprentice data managed by OA staff. The analysis
excludes apprentice data maintained by State Apprenticeship
Agencies, including those that participate in the RAPIDS database,
since the majority of the SAA states provide limited aggregated
information which does not lend itself to detailed statistical
analysis of demographic characteristics. Given the unique structure
of the Registered Apprenticeship system, OA believes that data
managed by OA staff is an acceptable proxy for the nation as a
whole, because this individual record dataset contains 62 percent of
the total active apprentices nationwide (excluding active military
members--USMAP). It should be noted that the United Services
Military Apprenticeship Program (USMAP) serves approximately 21
percent of all U.S. apprentices.
The comparisons made here between the demographics of the
apprenticeship workforce and the demographics of the national labor
force are made because using national-level data allows for the use
of certain data breakdowns--such as looking at racial shares of the
workforce of a particular level of educational attainment--that
would not be possible to do using readily available public state-
level data. The 25 states from which the RAPIDS data are drawn are,
however, broadly demographically representative of the United States
as a whole, and using aggregated data from only these 25 states
would not have substantially impacted these comparisons. Looking at
all participants in the labor force in calendar year 2015 over age
16, the shares that are women (46.8 percent) and Black or African
American (12.3 percent) in the national labor force are not
significantly different than the shares that are women and Black or
African American in these 25 states (46.2 percent and 11.8 percent
respectively), while the share of these states' labor forces that is
Hispanic (19.7 percent) is actually somewhat higher than the share
of the national labor force that is Hispanic (16.6 percent).
Consequently, had aggregated state-level data from these 25 states
been used instead of the national-level data, the disparities
illustrated below would have likely looked largely identical or even
slightly more substantial in the case of Hispanic workers.
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As described in more detail below, these data and other available
analyses indicate that certain groups continue to face substantial
barriers to entry into and, for some groups, completion of registered
apprenticeships. These barriers result in the following:
Lower than expected enrollment rates in registered
apprenticeships among women and specific minority groups;
To the extent that women and minorities participate in
registered apprenticeships, concentration of these groups in
apprenticeships for lower-paying occupations; and
Significantly lower apprenticeship completion rates among
specific minority groups and lower construction apprenticeship
completion rates among minority groups and women.
It should also be noted that OA lacks data on the apprenticeship
experiences of individuals with disabilities, which complicates efforts
both to measure the challenges faced by this group and to address the
disparities in access and participation that are likely to exist given
the disparities faced by these individuals in the labor force more
broadly.
Women in Registered Apprenticeships
In general, women's enrollment in registered apprenticeship
programs is significantly lower than would be expected based on labor
market data. This disparity exists in comparison to the number of men
in registered apprenticeships and also in comparison to the number of
women in the wider civilian labor force. As shown in Table 1, in FY2015
the national labor force was 53.2 percent male and 46.8 percent female,
and even when looking only at the labor force lacking a college
degree--those workers most likely to participate in apprenticeship
programs--the labor force was still 43.0 percent female.\13\
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\13\ All figures derived from CPS data. Those participants in
the labor force lacking a college degree consist of those with no
high school diploma, those that completed high school but did not
attend college, and those that attended some college but did not
receive an associate's degree or bachelor's degree. Note that the
Bureau of Labor Statistics only publishes educational attainment
labor force statistics for individuals age 25 and over.
Consequently, while the overall labor force shares presented in the
Table 1 are for all individuals age 16 and above, the shares of
labor force participants lacking a college degree are for
individuals age 25 and above. While this means that the comparison
between the latter set of figures and the apprenticeship workforce
is not perfect given that many apprentices are below age 25, it
nevertheless provides valuable insight into how the composition of
the apprenticeship workforce compares to a group of workers of which
they already are, or are likely to, become a part.
Table 1--Male and Female Shares of National Labor Force in FY2015
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Share of
Share of labor force
labor force with no
(%) college
degree (%)
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Men........................................... 53.2 57.0
Women......................................... 46.8 43.0
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Source: Current Population Survey.
Yet, as Table 2 illustrates, in the last decade, on average, women
comprised only 7.1 percent of all new enrollments in registered
apprenticeships, whereas men accounted for 92.9 percent. Additionally,
while the share of newly enrolled apprentices that are women has
fluctuated up and down by small margins over this period, overall no
noticeable progress has been made, and the share of newly enrolled
apprentices in FY2015 that were women is identical to the share in
FY2006 that were women.
Table 2--New Enrollments in Registered Apprenticeship by Sex and Fiscal
Year, All Industries
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Female Male
Fiscal year (%) (%)
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2006.................................................. 7.1 92.9
2007.................................................. 6.1 93.9
2008.................................................. 6.7 93.3
2009.................................................. 7.8 92.2
2010.................................................. 8.3 91.7
2011.................................................. 6.7 93.3
2012.................................................. 7.5 92.5
2013.................................................. 6.7 93.3
2014.................................................. 6.7 93.3
2015.................................................. 7.1 92.9
10 Year Average....................................... 7.1 92.9
CPS Share of Labor Force (FY2015)..................... 46.8 53.2
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Source: Query of RAPIDS database--May 2016.
Additionally, when looking at the 50 occupations with the largest
number of apprenticeships, it becomes clear that women who are
participating in the largest apprenticeship programs are
disproportionately ending up in lower-paying occupations.\14\ As shown
in Table 3 below, while women account for 9.6 percent of the
enrollments in apprenticeship programs in the lowest paying
apprenticeable occupations, they make up only 2.2 percent of
enrollments in apprenticeship programs in the highest paying
apprenticeable occupations. Also illustrative of this fact
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is that while the 16 occupations comprising the lowest-paid tier of
these 50 occupations account for only just over one-fifth of total
apprenticeship enrollments, they account for nearly half of female
enrollments.\15\
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\14\ Note that these 50 occupations accounted for 82.6 percent
of all apprentices in the RAPIDS database as of September 2015.
\15\ Analysis of RAPIDS data from May 2016 query of RAPIDS
database and BLS 2015 National Occupational Employment and Wage
Estimates.
Table 3--Representation of Women in Registered Apprenticeship in Top 50 (Most Populous) Apprenticeable
Occupations in FY2015
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Women's share
Category Example job titles in the tier Mean hourly of enrollments
wage (%)
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Highest Paid Occupations Tier (17 Electrician, Pipe Fitter, Plumber, $28.04 2.2
occupations). Telecommunications Technician.
Intermediate Paid Occupations Tier (17 Firefighter, Carpenter, Sheet Metal 22.70 4.3
occupations). Worker, Glazier, Floor Layer.
Lowest Paid Occupations Tier (16 Truck Driver, Roofer, Painter, 17.16 9.6
occupations). Housekeeper, Cook, Child Care
Development Specialist.
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Source: Query of RAPIDS database--May 2016; Bureau of Labor Statistics May 2015 National Occupational Employment
and Wage Estimates.
When analyzing the distribution of female apprentices on an
industry basis, more pronounced disparities become apparent. As seen in
Table 4 below, of the 20 major industries in which apprenticeship
programs exist, women's share of apprenticeship enrollments is only
greater than or equal to their share of the national labor force in
three industries and greater than their share of the national labor
force without a college degree in four industries (Healthcare and
Social Assistance, Retail Trade, Finance and Insurance, and
Warehousing). Among the top five industries by total apprenticeship
enrollments (the first five industries shown in the Table 4), women's
share of enrollments is no more than 11.6 percent. While there are many
reasons that these apprenticeship enrollment rates do not equal the
share of the labor force that is women or the share of the labor force
without a college degree that is women, the magnitudes of the
disparities present clearly indicate the presence of significant
inequities in access and participation.
Table 4--New Enrollments in Registered Apprenticeship by Sex and
Industry in FY2015
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Total Female share
Industry enrollments (%)
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Construction \16\....................... 165,291 2.8
Public Administration................... 19,579 11.6
Manufacturing........................... 17,154 8.0
Utilities............................... 8,389 1.7
Transportation.......................... 4,951 5.9
Health Care and Social Assistance....... 2,274 71.2
Retail Trade............................ 1,782 72.0
Education............................... 1,755 17.1
Other Services, except Public 1,658 15.6
Administration.........................
Wholesale Trade......................... 1,529 9.2
Administrative and Support and Waste 959 18.6
Management and Remediation Services....
Accommodation and Food Services......... 701 36.2
Agriculture, Forestry, Fishing and 701 8.0
Hunting................................
Information............................. 673 12.5
Professional, Scientific, and Technical 270 20.0
Services...............................
Mining, Quarrying, and Oil and Gas 225 3.1
Extraction.............................
Finance and Insurance................... 146 46.6
Arts, Entertainment, and Recreation..... 43 37.2
Real Estate and Rental and Leasing...... 43 7.0
Warehousing............................. 41 58.5
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Source: Query of RAPIDS database--May 2016.
Disparities between male and female enrollment rates are
particularly dramatic in the construction industry, where over 70
percent of apprentices were enrolled in FY2015.\17\ That year, only 2.8
percent of enrollments were women, the second lowest female enrollment
rate among all industries, trailing only the Utilities industry (1.7
percent). While historical and ongoing discrimination are not the sole
explanations for this, the magnitude of the disparities seen in the
data, along with several studies of the construction industry and the
anecdotal experience of the women working in the industry who submitted
comments to the proposed rule, suggest that
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discrimination remains a significant factor.\18\
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\16\ Joint apprenticeship training committees (JATCs) have been
removed from the Education industry category and included in the
Construction industry category.
\17\ Joint apprenticeship training committees (JATCs) have been
removed from the Education industry category and included in the
Construction industry category.
\18\ See, e.g., Permanent Commission on the Status of Women,
``Pre-Apprenticeship Construction Training Manual for Women.''
Hartford, CT, (2007); Byrd, B., ``Women in Carpentry Apprenticeship:
A Case Study,'' 24 Labor Studies Journal, at 8 (Fall 1999);
Ericksen, J., and Palladino Schultheiss D., ``Women Pursuing Careers
in Trades and Construction,'' 36 Journal of Career Development at
69-70 (September 2009); Moir, S., Thomson, M., and Kelleher, C.,
``Unfinished Business: Building Equality for Women in the
Construction Trades,'' Labor Resource Center Publications. Paper 5
at 10-12 (2011); and ``Women in the Construction Workplace:
Providing Equitable Safety and Health Protection,'' Health and
Safety of Women in Construction (HASWIC) Workgroup, Advisory
Committee on Construction Safety and Health (ACCSH), submitted to
Occupational Safety and Health Administration (OSHA), Department of
Labor (June 1999).
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In the proposed rule, the Department stated that the construction
trades have traditionally used informal networks and referrals and word
of mouth to recruit for open apprenticeships. While we recognize, in
response to comments submitted, that significant progress has been made
in wider recruitment for apprenticeships and in opening these networks,
historical barriers linger. Personal introductions and recommendations
(as well as nepotism in the past) continue to be significant factors in
selection for construction apprenticeships and work, and many potential
female apprentices are not even be aware of the apprenticeship and job
opportunities available.\19\ The problem of underrepresentation then
perpetuates itself; because women have historically been
underrepresented in construction apprenticeships and jobs, many of them
may not have access to the interpersonal relationships and informal
networks necessary to receive information concerning these
opportunities and be selected for them.\20\ Barriers remain even after
women gain entry into these programs. Several women submitted comments
recounting discrimination they faced during registered apprenticeship
programs, such as being assigned more arduous tasks than male
counterparts or otherwise being required to work harder than male
counterparts to receive equivalent recognition, being given less
skilled and meaningful tasks than male counterparts, being given fewer
hours than male counterparts, and seeing men with less skill promoted
ahead of them. Several female commenters described incidents of sexual
harassment and retaliation that they experienced during their
apprenticeships or while working in the trades.
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\19\ See, e.g., Bilginsoy, C., ``The Hazards of Training:
Attrition and Retention in Construction Industry Apprenticeship
Programs,'' 57 Industrial & Labor Relations Review, at 54-67 (Oct.
2003); Byrd, B, ``Women in Carpentry Apprenticeship: A Case Study,''
24 Labor Studies Journal, at 8-10 (Fall 1999); National Women's Law
Center, ``Women in Construction Still Breaking Ground,'' (2014),
available at http://www.nwlc.org/sites/default/files/pdfs/final_nwlc_womeninconstruction_report.pdf.
\20\ Bilginsoy, C., ``The Hazards of Training: Attrition and
Retention in Construction Industry Apprenticeship Programs,'' 57
Industrial & Labor Relations Review, at 54-67, at 65 (Oct. 2003).
Additionally, the author of a study on women in carpentry
apprenticeships suggests that apprenticeship programs in
construction need to make a concerted effort to recruit females if
they want to increase the number of female applicants. Byrd, B.,
``Women in Carpentry Apprenticeship: A Case Study,'' 24 Labor
Studies Journal, at 10 (Fall 1999).
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In addition to low enrollment rates, women complete apprenticeships
in the construction industry at lower rates than men. As shown in Table
5 below, while across all industries women complete apprenticeships at
a higher rate (50.9 percent) than do men (42.0 percent), within the
construction industry women completed apprenticeships at a rate of only
36.5 percent compared to 40.6 percent for men.
Table 5--Apprenticeship Completion Rates in FY2015 by Sex
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FY2015 completion rates \21\
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Completions (all Completion rate Completions Completion rate
industries) (all industries) (construction) (construction) (%)
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Male............................ 23,763 42.0 11,685 40.6
Female.......................... 2,248 50.9 271 36.5
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Source: Query of RAPIDS database--June 2016.
These disparities can be addressed, however, and evidence
illustrates that women do participate and succeed in apprenticeship
programs at higher levels when provided equal opportunity and support.
The state of Oregon, for example, has been proactively working to
increase diversity in its highway construction workforce since 2009 by
providing potential highway construction workers with a variety of
supports to help them complete relevant apprenticeships. The state's
Highway Construction Workforce Development Program (WDP) provides pre-
apprenticeship programs, support services including childcare and
transportation subsidies, and mentoring and retention services to help
apprentices gain the training and credentials they need, with a
particular emphasis on serving female and minority candidates.\22\ A
2014 poll of apprentices by WDP found that 80 percent of female active
apprentices reported that WDP supports allowed them to take a job they
would not otherwise have been able to take, and completion rates for
female apprentices who received financial services from the WDP were
significantly higher than those who did not receive any services (60.9
percent versus 31.5 percent).\23\ Between 2005 and 2013, the share of
all heavy highway construction apprentices in Oregon that were female
apprentices or apprentices of color increased from 16.5 percent to 26.9
percent, with the program likely playing a significant role in more
recent years.\24\
---------------------------------------------------------------------------
\21\ Completion rate means the percentage of an apprenticeship
cohort who receives a certificate of apprenticeship completion
within 1 year of the expected completion date. For more information
see Bulletin FY 2011-07--Program Performance--Calculation of
Registered Apprenticeship Program Completion Rates (http://doleta.gov/OA/bul10/Bulletin_2011-07_Completion_Rates.pdf).
\22\ S. Burd-Sharps, K. Lewis, and M. Kelly, ``Building a More
Diverse Skilled Workforce in the Highway Trades: Are Oregon's
Current Efforts Working?'' available at http://www.pdx.edu/sociology/sites/www.pdx.edu.sociology/files/Building%20a%20More%20Diverse%20Skilled%20Workforce%20in%20the%20Highway%20Trades%20FINAL%20REPORT.pdf.
\23\ Id.
\24\ Id.
---------------------------------------------------------------------------
Examples such as that seen in Oregon demonstrate that progress can
be made in improving women's participation and success in
apprenticeship programs when doing so is made a priority. Making sure
that women are aware of the apprenticeship opportunities available to
them, that they receive equal opportunities to participate in those
apprenticeship programs, and that they receive the same quality of
training and mentorship in those programs are all critical to closing
the significant utilization gaps we see today.
[[Page 92031]]
Minorities in Apprenticeship
The participation of racial and/or ethnic minorities in
apprenticeships has been uneven and varies by group. In FY2015, the
``Black or African American'' demographic group \25\ comprised 12.3
percent of the national labor force and 14.1 percent of the labor force
without a college degree (see Table 6), but made up 10.0 percent of all
apprenticeship enrollments. While those gaps are clearly substantially
smaller than those seen among women, focusing only on this broad
measure can mask significant underrepresentation of Black or African
Americans in particular industries.
---------------------------------------------------------------------------
\25\ We refer herein to ``Black or African American'' because
that is the racial categorization used by the Bureau of Labor
Statistics in CPS data, and is in turn used within the definition of
``race'' in the part 30 regulations. See Bureau of Labor Statistics
Glossary, available at http://www.bls.gov/bls/glossary.htm#R (last
accessed June 24, 2016); 29 CFR 30.2.
Table 6--Racial and Ethnic Composition of Labor Force in FY2015
------------------------------------------------------------------------
Share of
Share of labor force
labor force with no
(%) college
degree (9%)
------------------------------------------------------------------------
White......................................... 78.8 78.5
Black or African American..................... 12.3 14.1
Other Race.................................... 9.0 7.4
Hispanic or Latino \26\....................... 16.6 22.7
------------------------------------------------------------------------
Source: Current Population Survey.
For example, as can be seen in Table 7, while Black or African
Americans were well-represented in apprenticeships in industries such
as Public Administration, Health Care and Social Assistance, and Other
Services in FY2015, they comprised only 8.8 percent of apprentice
enrollments in Construction, the industry with by far the largest
number of apprentices. Black or African Americans also comprised under
10 percent of enrollments in seven other industries, including
Utilities; Agriculture, Forestry, Fishing, and Hunting; and
Professional, Scientific, and Technical Services among others. These
disparities illustrate the uneven manner in which Black and African
Americans participate in apprenticeships across industries and also
speak to the importance of disaggregating such enrollment data so as to
gain a more accurate picture of where and to what extent different
groups are being underrepresented.
---------------------------------------------------------------------------
\26\ Note that percentages in this table will not add up to 100
percent due to rounding and because there is overlap between the
Hispanic or Latino ethnic group and the racial groups presented in
the table.
\27\ Joint apprenticeship training committees (JATCs) have been
removed from the Education industry category and included in the
Construction industry category.
Table 7--New Enrollments in Registered Apprenticeship by Race and Industry in FY2015
----------------------------------------------------------------------------------------------------------------
Black or
Total White share African Other race Unreported
Industry enrollments (%) American share share (%) race share (%)
(%)
----------------------------------------------------------------------------------------------------------------
Construction \27\............... 165,291 62.4 8.8 7.2 21.5
Public Administration........... 19,579 62.0 24.4 3.5 10.1
Manufacturing................... 17,154 68.6 10.4 6.0 15.0
Utilities....................... 8,389 74.5 6.8 4.0 14.6
Transportation.................. 4,951 49.5 11.1 5.2 34.2
Health Care and Social 2,274 53.2 31.9 3.2 11.7
Assistance.....................
Retail Trade.................... 1,782 26.3 14.3 3.3 56.2
Education....................... 1,755 49.3 13.2 9.8 27.7
Other Services, except Public 1,658 55.6 29.5 2.8 12.1
Administration.................
Wholesale Trade................. 1,529 66.8 13.3 2.0 17.8
Administrative and Support and 959 31.0 22.3 8.2 38.5
Waste Management and
Remediation Services...........
Accommodation and Food Services. 701 68.2 13.0 8.3 10.6
Agriculture, Forestry, Fishing 701 67.8 3.0 5.8 23.4
and Hunting....................
Information..................... 673 56.8 16.2 18.1 8.9
Professional, Scientific, and 270 55.6 5.9 21.1 17.4
Technical Services.............
Mining, Quarrying, and Oil and 225 37.8 8.4 32.0 21.8
Gas Extraction.................
Finance and Insurance........... 146 67.1 24.7 4.1 4.1
Arts, Entertainment, and 43 48.8 9.3 14.0 27.9
Recreation.....................
Real Estate and Rental and 43 86.0 2.3 2.3 9.3
Leasing........................
Warehousing..................... 41 4.9 4.9 0.0 90.2
----------------------------------------------------------------------------------------------------------------
Source: Query of RAPIDS database--May 2016.
Studies examining apprenticeship data at the occupation level have
also presented compelling evidence that Blacks or African Americans are
underrepresented in certain apprenticeable occupations. In an analysis
of 2005-2007 ACS data broken down to the occupational level in the
construction, extraction, and maintenance sector, researchers found
that Black or African-American men experienced underrepresentation in
81 percent of the 67 precisely-defined occupations that comprise this
sector.\28\
---------------------------------------------------------------------------
\28\ The authors also found that across occupations in all
sectors examined, Black or African-American men were
underrepresented in 49 percent of occupations. To determine whether
underrepresentation existed in a particular occupation, the authors
compared the share workers in the occupation that were Black or
African American to the share of workers in the occupation that one
would have expected to be Black or African American given the
proportion of Black or African-American workers that have the
education level associated with that occupation. See Hamilton, D,
Algernon A., and William D., Jr., ``Whiter Jobs, Higher Wages:
Occupational Segregation and the Lower Wages of Black Men.''
Economic Policy Institute, Washington, DC (Feb. 2011).
---------------------------------------------------------------------------
[[Page 92032]]
Examining the distribution of Hispanic apprentices illustrates a
similar pattern of uneven participation of workers across industries
and points to the existence of significant underrepresentation of
Hispanics in a number of industries. In FY2015, Hispanics comprised
20.2 percent of apprenticeship enrollments, which was higher than their
share of the national labor force (16.6 percent) but below their share
of the labor force without a college degree (22.7 percent). Looking
specifically at industry employment, it can be seen in Table 8 that
while Hispanics were relatively well represented in industries such as
Education and Wholesale Trade, of the top seven industries by
apprenticeship enrollment, Hispanics accounted for less than 10 percent
of enrollees in all but one (Construction). In total, Hispanics
accounted for a share of enrollments that was below their share of the
national labor force in 13 industries, and accounted for a share of
enrollments that was below their share of the labor force without a
college degree in 15 industries.
Table 8--New Enrollments in Registered Apprenticeship by Ethnicity and Industry in FY2015
----------------------------------------------------------------------------------------------------------------
Unreported
Industry Total Hispanic share Non-Hispanic ethnicity
enrollments (%) share (%) share (%)
----------------------------------------------------------------------------------------------------------------
Construction \29\............................... 165,291 21.2 55.7 23.1
Public Administration........................... 19,579 7.2 46.8 46.0
Manufacturing................................... 17,154 5.6 62.1 32.3
Utilities....................................... 8,389 7.2 61.7 31.1
Transportation.................................. 4,951 6.4 37.2 56.3
Health Care and Social Assistance............... 2,274 9.9 58.9 31.1
Retail Trade.................................... 1,782 4.7 14.9 80.4
Education....................................... 1,755 30.9 47.0 22.1
Other Services, except Public Administration.... 1,658 10.5 38.9 50.6
Wholesale Trade................................. 1,529 24.0 61.7 14.3
Administrative and Support and Waste Management 959 8.4 36.6 55.0
and Remediation Services.......................
Accommodation and Food Services................. 701 8.1 47.9 43.9
Agriculture, Forestry, Fishing and Hunting...... 701 23.7 33.7 42.7
Information..................................... 673 22.1 44.7 33.1
Professional, Scientific, and Technical Services 270 7.4 55.6 37.0
Mining, Quarrying, and Oil and Gas Extraction... 225 24.0 50.2 25.8
Finance and Insurance........................... 146 2.1 87.7 10.3
Arts, Entertainment, and Recreation............. 43 23.3 58.1 18.6
Real Estate and Rental and Leasing.............. 43 0.0 55.8 44.2
Warehousing..................................... 41 7.3 2.4 90.2
----------------------------------------------------------------------------------------------------------------
Source: Query of RAPIDS database--May 2016.
Further, minority groups tend to be more concentrated in
apprenticeships for lower-paying occupations than are apprentices as a
whole. RAPIDS data for the 50 occupations with the largest numbers of
apprentices show that both Black or African-American enrollees and
Hispanic enrollees in apprenticeship programs make up higher shares of
apprentices in low-wage occupations than of apprentices in high-wage
occupations. As seen below in Table 9, while Black or African Americans
comprise 17.3 percent of enrollees in the lowest-paid occupation tier,
they account for only 7.8 percent of enrollees in the highest-paid
tier, and while Hispanics comprise 22.4 percent of enrollees in the
lowest-paid occupation tier, they account for only 15.6 percent of
enrollees in the highest-paid tier. Further illustrating this point is
that while enrollments in the bottom wage tier account for 21.2 percent
of total apprenticeship enrollments among these 50 occupations, they
account for 35.8 percent of Black or African American enrollments and
25.3 percent of Hispanic enrollments.
---------------------------------------------------------------------------
\29\ Joint apprenticeship training committees (JATCs) have been
removed from the Education industry category and included in the
Construction industry category.
Table 9--Representation by Race in 50 Most Populous Apprenticeable Occupations FY2015
[RAPIDS data]
----------------------------------------------------------------------------------------------------------------
Black or
African Hispanic share
Category Example job titles in Mean hourly American share of enrollments
the tier wage of enrollments (%)
(%)
----------------------------------------------------------------------------------------------------------------
Highest Paid Occupations Tier (17 Electrician, Pipe $28.04 7.8 15.6
Occupations). Fitter, Plumber,
Telecommunications
Technician.
Intermediate Paid Occupations Tier (17 Firefighter, Carpenter, 22.70 9.5 22.1
Occupations). Sheet Metal Worker,
Glazier, Floor Layer.
[[Page 92033]]
Lowest Paid Occupations Tier (16 Truck Driver, Roofer, 17.16 17.3 22.4
Occupations). Painter, Housekeeper,
Cook, Child Care
Development Specialist.
----------------------------------------------------------------------------------------------------------------
Source: Query of RAPIDS database--May 2016; Bureau of Labor Statistics May 2015 National Occupational Employment
and Wage Estimates.
Finally, RAPIDS data also reveal that there are challenges for
minority groups in completion rates as well. For example, the FY2015
completion rate for Black or African American apprentices in all
industries was only 39.3 percent, and in the construction industry it
was only 30.6 percent (see Table 10). White apprentices, by comparison,
had an all-industry completion rate of 47.3 percent, and a
construction-industry completion rate of 44.6 percent. Similar patterns
are seen among Hispanic apprentices, who had an all-industry completion
rate of 31.7 percent and a construction-industry completion rate of
34.0 percent in FY2015, compared to a 46.5 percent all-industry
completion rate and a 43.2 construction-industry percent completion
rate among Non-Hispanics.
---------------------------------------------------------------------------
\30\ Completion rate means the percentage of an apprenticeship
cohort who receives a certificate of apprenticeship completion
within 1 year of the expected completion date. For more information
see Bulletin FY 2011-07--Program Performance--Calculation of
Registered Apprenticeship Program Completion Rates, available at
http://doleta.gov/OA/bul10/Bulletin_2011-07_Completion_Rates.pdf.
Table 10--Apprenticeship Completion Rates in FY2015 by Race and Ethnicity
----------------------------------------------------------------------------------------------------------------
FY2015 completion rates \30\
-----------------------------------------------------------------------------------------------------------------
Completion rate
Completions (all (all industries) Completions Completion rate
industries) (%) (construction) (construction) (%)
----------------------------------------------------------------------------------------------------------------
White........................... 17,853 47.3 9,168 44.6
Black or African American....... 3,000 39.3 816 30.6
Non-Hispanic.................... 15,690 46.5 7,951 43.2
Hispanic........................ 3,709 31.7 1,568 34.0
----------------------------------------------------------------------------------------------------------------
Source: Query of RAPIDS database--June 2016.
That such disparities and patterns of uneven participation exist is
not surprising given the challenges often faced by many minorities and
ethnic groups as they look to find work in the industries and
occupations where apprenticeships are most common. These workers can be
confronted by workplace cultures that are overtly or subtly hostile to
workers of their race or ethnic background, and they often lack access
to the types of interpersonal relationships and professional networks
that would help them find jobs and receive the mentorship and training
they need to complete their apprenticeships. One study of apprentices
in the highway trades in Oregon published in 2015 documents all of
these challenges.\31\ In surveying apprentices in the highway trades,
it found that 21 percent of men of color and 30 percent of women of
color reported feeling disadvantaged on the job due to their race or
ethnicity. Speaking to the issues surrounding minorities' access to
critically important informal networks, the survey also found that
while only 13 percent of white men stated that problems with
journeyworkers were a challenge during their apprenticeship, 21 percent
of men of color and 35 percent of women of color reported such
problems. Indeed, while 79 percent of white men reported receiving
mentoring on the job, only 60 percent of men of color and 38 percent of
women of color reported the same.
---------------------------------------------------------------------------
\31\ M. Kelly et al., ``When Working Hard is Not Enough for
Female and Racial/Ethnic Minority Apprentices in the Highway
Trades,'' 30 Sociology Forum no. 2 (June 2015).
---------------------------------------------------------------------------
All of these challenges and disparities can make it very difficult
for minority workers to break in to trades in which they have not been
traditionally well represented, but they can be successfully addressed
by robust affirmative action efforts if these efforts are tailored to
address the specific circumstances of the disparity.
Individuals With Disabilities in Apprenticeship
While the Department does not currently have data on the
representation of persons with disabilities in apprenticeship programs,
the underemployment of individuals with disabilities in the labor force
more broadly is well documented. According to data from BLS, 30.5
percent of working-age individuals with disabilities were in the labor
force in 2015, compared with 76.1 percent of working-age individuals
with no disability.\32\ The unemployment rate for working-age
individuals with disabilities was 11.7 percent in 2015, compared with a
5.2 percent unemployment rate for working-age individuals without a
disability. Furthermore, wages for individuals with disabilities on
average lag behind the rest of the workforce. The mean weekly earnings
of employed full-time wage
[[Page 92034]]
and salary workers with a disability in 2015 were $962 (with a median
of $737) compared to $1,157 (median $811) for those without a
disability.\33\ While 28.5 percent of individuals, ages 18 to 64, with
a disability were in poverty in 2014, the data show that 12.3 percent
of individuals without a disability were in poverty.\34\
---------------------------------------------------------------------------
\32\ Source: Current Population Survey data. `Working age'
refers to individuals between the ages of 16 and 64. As the
Department's Section 503 Final Rule noted, this acute disparity in
the workforce participation and unemployment rates of working age
individuals with disabilities persists, despite the many
technological advances that now make it possible for a broad array
of jobs to be successfully performed by individuals with severe
disabilities.
\33\ BLS unpublished table A-45.
\34\ Income and Poverty in the United States: 2014, Current
Population Reports, issued September 2015, https://www.census.gov/content/dam/Census/library/publications/2015/demo/p60-252.pdf (last
accessed June 3, 2016).
---------------------------------------------------------------------------
Affirmative efforts to seek out individuals with disabilities and
ensure they have fair access to apprenticeship programs and the
``ticket to the middle class'' that apprenticeship programs provide has
the potential to powerfully impact these profound inequalities.
Overview of the Apprenticeship Equal Employment Opportunity Notice of
Proposed Rulemaking and Public Comments
Leading up to the publication of the Notice of Proposed Rulemaking
(NPRM), OA received valuable input from a broad array of interested
individuals, including SAAs; the National Association of State and
Territorial Apprenticeship Directors (NASTAD); advocacy organizations;
registered apprenticeship program sponsors such as employers, employer
associations, and labor-management organizations; journeyworkers;
former apprentices; and registered apprentices. This input addressed
features of the existing rules that work well, those that could be
improved, and additional requirements that might help to effectuate the
overall goal of ensuring equal opportunity for all individuals who are
participating in or seeking to participate in the National Registered
Apprenticeship System. Recurring themes in these town halls, webinars,
and listening sessions included the need for increased outreach efforts
to attract women and minorities; focus on equal training and retention
of apprentices; stricter enforcement of the Equal Employment
Opportunity (EEO) obligations; recognition of the voluntary nature of
apprenticeship programs; clarification of complaint procedures; and
progressive actions by Registration Agencies to achieve sponsor
compliance with the regulations.
In developing the proposed rule, the Department also consulted with
its Advisory Committee on Apprenticeship (ACA). Chartered under the
Federal Advisory Committee Act, the ACA provides advice and
recommendations to the Secretary of Labor on a wide range of matters
related to apprenticeship. The ACA is comprised of approximately 30
members drawn equally from employers, labor organizations, and the
public.
OA's NPRM was published in the Federal Register on November 6,
2015.\35\ The NPRM sought public comment on a number of proposals
designed to improve the regulations implementing EEO in apprenticeship.
The NPRM was published for a 60-day public comment period. After
receiving several requests to extend the public comment period, OA
extended the public comment period an additional 15 days to January 20,
2016.\36\
---------------------------------------------------------------------------
\35\ 80 FR 68908.
\36\ 80 FR 80307, Dec. 24, 2015.
---------------------------------------------------------------------------
The NPRM contained four general categories of proposed revisions to
the part 30 regulations: (1) Changes required to make part 30
consistent with the Labor Standards for Registration of Apprenticeship
Programs set forth in part 29; (2) adding additional protected bases to
those already delineated in part 30, and further clarifying the scope
of some of the existing bases; (3) changes to enhance and clarify the
affirmative steps sponsors must take to ensure equal employment
opportunity, including the contents of affirmative action programs
(AAPs), and how these obligations would be reviewed and enforced by
Registration Agencies; and (4) changes to improve the overall
readability of part 30. Wherever possible, this Final Rule has
attempted to streamline and simplify sponsors' obligations, while
maintaining broad and effective EEO protections for apprentices and
those seeking entry into apprenticeship programs.
The first set of changes proposed to align the EEO regulations at
part 30 with its companion regulations at part 29, and are necessary to
ensure a cohesive, comprehensive regulatory framework for the National
Registered Apprenticeship System. To that end, the Department proposed
to revise or add several definitions and incorporate the procedures set
forth in part 29 for deregistration of apprenticeship programs,
derecognition of SAAs, and hearings. The use of a more uniform set of
procedures streamlines management of the National Apprenticeship
System. Also proposed were a few minor, conforming changes in 29 CFR
part 29, the companion rule to part 30.
The second category of changes proposed to expand the protected
bases upon which discrimination is unlawful and align the existing
protected bases with current jurisprudence given the developments in
EEO law since the regulations were last revised in 1978. Categories
added to update the rule included age, disability, sexual orientation,
genetic information; the proposal also took the position that sex
discrimination included discrimination on the basis of pregnancy and
gender identity.
The third category of changes in the proposal was designed to
improve the effectiveness of program sponsors' required affirmative
action efforts and of Registration Agencies' efforts to enforce and
support compliance with this rule. Among these proposed changes were
the following:
Listing specific steps all sponsors must undertake to
ensure equal employment opportunity, including: Dissemination of EEO
policy; outreach and recruitment obligations in an effort to
increase diversity in applications for apprenticeship; taking steps
to keep the workplace free from harassment, intimidation, and
retaliation; and assigning an individual at the sponsor to oversee
EEO efforts (proposed Sec. 30.3);
Specifying in clearer detail the components of a
written AAP for those sponsors required to maintain one, allowing
new sponsors more time to establish initial AAPs, and requiring an
internal, annual review of all written AAP contents (with the
possibility to extend the review to every two years if their review
demonstrated compliance with all AAP elements) (proposed Sec.
30.4);
As part of an AAP, simplifying the process by which
sponsors analyze whether the apprenticeship program is
underutilizing women or minorities, and accordingly whether they
need to set utilization goals (proposed Sec. Sec. 30.5-30.6);
Expanding the AAP to include affirmative action
obligations on the basis of disability, including a 7% utilization
goal for individuals with disabilities in apprenticeship programs
and a self-identification mechanism allowing sponsors to
quantitatively measure their progress against that goal (proposed
Sec. Sec. 30.7, 30.11);
Clarifying the existing outreach and recruitment AAP
obligation, which required engaging in a ``significant number'' of
ten possible activities, by specifying four required, common-sense
activities (proposed Sec. 30.8);
Requiring an annual review of personnel practices to
ensure the program is operating free from discrimination (proposed
Sec. 30.9);
Providing sponsors greater flexibility in how they may
select apprentices for their programs, provided that such selection
mechanisms are free from discrimination and comport with the Uniform
Guidelines for Employee Selection Procedures that already governed
selection in the existing regulations (proposed Sec. 30.10); and
Clarifying procedures for apprentices to file
complaints of discrimination and the types of enforcement actions
Registration Agencies may take in the event of violations (proposed
Sec. Sec. 30.12-30.15).
While progress has been made in some segments of the workforce since
the
[[Page 92035]]
promulgation of the existing part 30, these enhancements and
improvements were proposed to address the ongoing widespread
underutilization of historically disadvantaged worker groups in
apprenticeship. The Department has a compelling interest in ensuring
that its approval of a sponsor's apprenticeship program does not serve
to support, endorse, or further promote discrimination.
The fourth category of changes was proposed to improve the overall
readability of part 30 through a reorganization of the part 30
requirements, basic editing, providing clarifying language where
needed, and adhering to plain language guidelines. This includes
replacing the word ``shall'' with ``must'' or ``will'' as appropriate
to the context. The proposed rule added a new section setting forth the
effective date for this rule and for programs currently registered to
come into compliance with the revised regulations.
OA received 245 comments on the NPRM. Commenters represented
diverse perspectives including: 107 individuals; 45 advocacy and public
interest groups; 27 Joint Apprenticeship Training Committees (state/
local); 13 state government agencies; 11 industry association/business
interests; 10 national unions; 9 state and local unions; and 5 private
employers.
The commenters raised a broad range of issues. Most commenters
supported the broader intent of increasing diversity and equal
opportunity to bolster inclusion efforts, and many commenters strongly
supported the expanded protections proposed in the NPRM. Other
commenters raised various concerns with the cost and burden associated
with the proposed rule, and questioned whether various proposals were
feasible for sponsors to undertake and/or comply with. Among the
primary issues raised by these commenters were:
Whether the obligations under the new rule conflicted
with the obligations of certain sponsors under Employee Retirement
Income Security Act (ERISA) to act as a fiduciary for the training
plans;
The application of certain non-discrimination,
affirmative action, and recordkeeping obligations to certain group
sponsors, whom commenters believed would not have the ability to
control personnel actions made and records kept by participating
employers (proposed Sec. Sec. 30.3-30.12);
The definition of sex discrimination, which many
commenters believed should specifically include discrimination on
the basis of pregnancy, gender identity, and sexual orientation;
The exemption from AAP obligations for those sponsors
with fewer than 5 apprentices (proposed Sec. 30.4), which was
carried over from the existing rule. These comments were split
between those who wanted the exemption eliminated altogether versus
those who wanted the exemption expanded to include sponsors with
larger apprenticeship programs;
Questions of burden related to the frequency and extent
of various elements of the AAP (proposed Sec. Sec. 30.4-30.9);
The burden of requiring sponsors to complete
utilization analyses for race and sex (proposed Sec. Sec. 30.5-
30.6), given that, while required under the existing rule, many
sponsors do not have experience undertaking this analysis and have
in practice relied upon Registration Agencies to do so on their
behalf. Related, a number of commenters cited a lack of clarity on
various facets associated with utilization goals (Sec. Sec. 30.5-
30.6), such as defining a relevant recruitment area;
The feasibility of the new 7% disability goal and
attendant self-identification requirements (proposed Sec. 30.7 and
30.11), with some commenters arguing for a lower goal and some a
higher goal, as well as whether pre-offer self-identification
inquiries comport with State and Federal laws; and
The new enforcement measure that would allow
Registration Agencies to suspend sponsors (proposed Sec. 30.15),
which some commenters believed lacked due process considerations and
could be used punitively for political reasons by certain SAAs.
The active engagement from stakeholders to provide their ideas
about and comments on the proposed rule resulted in a Final Rule that
streamlines and simplifies the obligations of sponsors to the extent
possible while maintaining broad equal employment opportunity
protections for apprentices.
Overview of the Final Rule
This Final Rule responds to and incorporates the public input
received during the open comment period and ACA consultation, as well
as OA's analysis regarding barriers to entry, underutilization, and
discrimination in apprenticeship and nontraditional occupations for
underrepresented groups and best practices to address these challenges.
The Final Rule includes the same basic structure and many of the same
proposals that were announced in the NPRM. However, to focus the Final
Rule more closely on key issues, incorporate public comment, and to
reduce the burden to the extent possible while maintaining the efficacy
of nondiscrimination and affirmative action efforts, the Final Rule
also revises or eliminates some of the NPRM's proposals. A summary of
the significant changes from the NPRM are as follows:
Generally providing more time for sponsors--both those
currently registered and those who may register programs in the
future--to comply with the new non-discrimination and affirmative
action obligations;
Adjusting the workforce analysis so that it is
conducted at the occupation level, and the utilization analysis at
the major occupation category level, using a common source of data
easily accessible to sponsors;
Clarifying that Registration Agencies will
significantly assist sponsors in conducting utilization analyses;
Clarifying that failure to meet utilization goals will
not, in and of itself, result in the assessment of any enforcement
actions or sanctions. In so doing, the Final Rule clarifies the
goals are not quotas, which in fact are legally impermissible, and
that goals do not displace in any way merit selection principles;
indeed, the rule specifically prohibits selections made on the basis
of a protected category;
Revising the proposed program suspension alternative in
the enforcement action to address due process concerns raised by
commenters; and
Allowing SAAs more time to submit their State EEO plan
to come into compliance with these regulations.
These and other changes to the Final Rule, as well as a full
response to the significant comments received and clarifying guidance
on how the rule should be interpreted, are set forth in the Section-by-
Section Analysis below.
Section-by-Section Analysis
Description of Part 30
The description of part 30 in the existing regulations reads
``Equal Employment Opportunity in Apprenticeship and Training.'' The
NPRM proposed to delete the words ``and Training'' to clarify that the
rule applies only to apprenticeship programs registered under the
National Apprenticeship Act, and not to other training programs. The
proposed change was also consistent with the recent change of the name
of the Department's apprenticeship agency to the Office of
Apprenticeship, from the Bureau of Apprenticeship and Training. We
received no comments on this proposed change. Accordingly, the
Department adopts the proposed language describing part 30 in the Final
Rule.
Purpose, Applicability, and Relationship to Other Laws (Sec. 30.1)
The existing Sec. 30.1 set forth the scope and purpose in one
paragraph and laid out the range of activities to which the policies
apply. The NPRM proposed to revise the title by replacing ``Scope and
purpose'' with ``Purpose, applicability, and relationship to other
laws,'' organized the text to fall under these three categories, and
provided clarifying
[[Page 92036]]
details to enhance readability of the section.
The Department received only one comment, from a national JATC,
suggesting that the current text be retained because it contains the
same information in a more concise manner. We respectfully disagree,
and believe that the expanded nature of proposed Sec. 30.1 makes it
helpful to the reader to divide the section's provisions among three
separate paragraphs: Proposed Sec. 30.1(a) set forth the purpose of
the rule; proposed Sec. 30.1(b) addressed to whom the rule applies;
and proposed Sec. 30.1(c) discussed how this regulation relates to
other laws that may apply to the entities covered by this regulation.
We therefore adopt the structure of Sec. 30.1 as proposed.
Paragraph 30.1(a): Purpose
Proposed Sec. 30.1(a) added age (40 or older), genetic
information, sexual orientation, and disability to the list of bases
set forth in the rule upon which a sponsor of a registered
apprenticeship program must not discriminate. The Department received
numerous comments addressing these proposed changes, which were
generally supportive, although one commenter cautioned the Department
not to discount the fact that prohibiting discrimination on the basis
of sexual orientation may raise implementation questions for sponsors
and require technical assistance. The Department is prepared to
undertake such assistance. Among the several commenters that were
supportive of the expanded protections, many suggested additional
clarifications.
Starting with those protected bases in the existing rule, the NPRM
explained that the Department interprets discrimination on the basis of
``sex'' to include both pregnancy and gender identity discrimination,
and clarified this interpretation in the proposed regulatory text at
Sec. 30.3(c), which provided the contents of sponsors' equal
opportunity pledge, by explicitly including pregnancy and gender
identity in a parenthetical following ``sex'' to make this clear. The
Department received numerous comments advocating that pregnancy and
gender identity be explicitly listed as separate grounds of
discrimination, rather than considered under the umbrella of sex
discrimination. Per the language of relevant authorities and case law,
both pregnancy and gender identity have been analyzed as forms of sex
discrimination.\37\ The final rule retains, in the E.O. pledge set
forth in Sec. 30.3(c), the proposed rule's parenthetical explaining
that sex discrimination includes discrimination on the basis of gender
identity and pregnancy. We include the parenthetical explanation in
this one portion of the regulation because it is the language that will
be incorporated into registered apprenticeship standards and
apprenticeship opportunity announcements and thus more visible to those
the rule protects, but this interpretation applies wherever sex is
discussed in the regulation. As set forth in the discussion of Sec.
30.3(a)(2) herein, the Department will look to the legal standards and
defenses that apply under Title VII and Executive Order 11246, as
applicable, in determining whether a sponsor has engaged in
discrimination made unlawful by Sec. 30.3(a)(1), including sex
discrimination.
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\37\ Regarding pregnancy, see 42 U.S.C. 2000e(k) (``The terms
``because of sex'' or ``on the basis of sex'' include, but are not
limited to, because of or on the basis of pregnancy, childbirth, or
related medical conditions''); 41 CFR 60-20(a) (stating that under
Executive Order 11246, sex discrimination includes discrimination on
the basis of pregnancy, childbirth, or related medical conditions);
see also EEOC Facts About Pregnancy Discrimination, available at
https://www.eeoc.gov/eeoc/publications/fs-preg.cfm (last accessed
Sept 14, 2016). Regarding gender identity, see, e.g., 41 CFR 60-
20.2(a) (stating that, under Executive Order 11246, discrimination
on the basis of sex includes discrimination on the basis of gender
identity); Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011); Kastl v.
Maricopa Cnty. Cmty. Coll. Dist., 325 F. App'x 492 (9th Cir. 2009);
Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004); Fabian v.
Hosp. of Cent. Conn., 2016 WL 1089178, * 14 (D. Conn. Mar. 18,
2016); Schroer v. Billington, 577 F. Supp. 2d 293 (D.D.C. 2008). The
Department is aware of the recent decision in Texas v. U.S., No.
7:16-cv-00054-O, 2016 WL 4426495 (N.D. Tex. Aug 21, 2016), in which
the court issued a preliminary injunction enjoining several Federal
agencies, including the Department, from enforcing certain guidance
pertaining generally to the issue of transgender access to sex
segregated facilities. As of when this rule was sent for
publication, the effect of that injunction on the Department's
programs is unclear and under consideration by the District Court.
See Order, Texas v. U.S., No. 7:16-cv-00054-O (N.D. Tex. Oct. 18,
2016), ECF No. 86 (ordering additional briefing as to whether the
injunction applies to Title VII and whether and how the injunction
applies to DOL). The Department will monitor this and other cases.
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The NPRM also proposed to include four new grounds to the list of
protected bases upon which a sponsor must not discriminate: Age (40 or
older); genetic information; sexual orientation; and disability. The
Department responds to the comments received on each in turn.
Age (40 or Older)
Of the few commenters who weighed in on the addition of age
discrimination, including a national JATC, an advocacy organization,
and one individual, all supported its inclusion as a prohibited ground
of discrimination. Among these, a national JATC said its industry's
programs have been following the Equal Employment Opportunity
Commission (EEOC) interpretations and/or State law and including age as
a protected category, and that there are many examples of older workers
entering the electrical industry through apprenticeship as second
careers. An individual commenter relayed personal experience of being
excluded from apprenticeship programs due to age, and thus could
benefit from this added protection. Accordingly, the Final Rule adopts
the addition of age as a protected basis, as proposed.
Genetic Information
With regard to genetic information, those few commenters weighing
in all supported its addition to the list of prohibited grounds of
discrimination. The national JATC said joint labor-management
committees already are prohibited from discriminating against employees
or applicants because of genetic information, so this will not be a
change for these apprenticeship programs. Accordingly, the Final Rule
adopts the addition of genetic information as a protected basis, as
proposed.
Sexual Orientation
Numerous commenters, including advocacy organizations, individual
commenters, a professional association, and a State Workforce Agency
(SWA), supported the rule's explicit inclusion of sexual orientation on
the list of protected bases. Several advocacy organizations said
individuals who identify as lesbian, gay, or bisexual face high levels
of discrimination and harassment at work based on their sexual
orientation and this revision is in line with current law and within
the Department's rulemaking authority.
Several of the above commenters plus additional advocacy
organizations urged the Department to make clear that sexual
orientation discrimination and sex stereotyping discrimination are also
prohibited forms of sex discrimination. One of these commenters, an
advocacy organization, stated that, while the legal landscape continues
to evolve, it is now clear that a division between sexual orientation
and sex discrimination is unsustainable and providing this additional
clarification in the final regulation would provide the fullest
protection for program participants. A national JATC urged some
caution, noting that the interpretation announced by the EEOC in its
2015 Baldwin decision \38\ that sexual
[[Page 92037]]
orientation discrimination is per se sex discrimination under Title VII
was not yet settled law.
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\38\ Baldwin v. Foxx, Appeal No. 0120133080, 2015 WL 4397641
(EEOC July 16, 2015).
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The Final Rule adopts the NPRM's proposed inclusion of sexual
orientation as a stand-alone protected category. As discussed in the
NPRM, adding sexual orientation as a protected characteristic is
consistent with both the statutory authority requiring the formulation
of ``labor standards necessary to safeguard the welfare of
apprentices,'' \39\ and the Department's purpose and approach since
part 30 was first established: to promote equality of opportunity in
registered apprenticeship programs and prevent discrimination in the
recruitment, selection, employment, and training of apprentices by
requiring, among other things, that apprentices and applicants for
registered apprenticeship are selected according to objective and
specific qualifications relating to job performance. We note further
that the addition of sexual orientation as a protected basis aligns
with developments in legal protections over the last two decades. At
the time of publication, 22 States and the District of Columbia, in
addition to numerous additional counties and municipalities across the
country, have laws explicitly prohibiting employment discrimination on
the basis of sexual orientation in the public and private sectors.\40\
Accordingly, the Final Rule retains sexual orientation as its own
protected basis. We do note, as discussed more fully in later sections,
that the Final Rule does not require sponsors to collect employee or
applicant data on sexual orientation, conduct specific outreach, or
otherwise include sexual orientation in the utilization analyses
required under AAPs pursuant to Sec. 30.4. This is consistent with the
Department's Office of Federal Contract Compliance Programs' (OFCCP)
approach to sexual orientation in its programs.
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\39\ 29 U.S.C. 50.
\40\ https://www.aclu.org/maps/non-discrimination-laws-state-state-information-map (last accessed May 4, 2016).
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With regard to commenters' requests that the rule state that sexual
orientation discrimination is also a per se form of sex discrimination,
the Department supports this view as a matter of policy. Federal
agencies have taken an increasing number of actions to ensure that
lesbian, gay, and bisexual individuals are protected from
discrimination,\41\ and court decisions have increasingly made clear
that individuals and couples deserve equal rights regardless of their
sexual orientation.\42\ The Department further notes that this area of
title VII law is still developing. In Baldwin, the EEOC--the lead
Federal agency responsible for administering and enforcing title VII--
offered a legal analysis and review of the title VII case law and its
evolution, concluding that sexual orientation is inherently a ``sex-
based consideration'' and that discrimination on the basis of sexual
orientation is therefore prohibited by title VII as one form of sex
discrimination.\43\ As the EEOC noted in that case, in Oncale v.
Sundowner Offshore Services, a unanimous Supreme Court stated that
``statutory prohibitions often go beyond the principal evil [they were
passed to combat] to cover reasonably comparable evils, and it is
ultimately the provisions of our laws rather than the principal
concerns of our legislators by which we are governed.'' \44\ More than
fifty years after the passage of the Civil Rights Act of 1964, the
contours of the law governing sex discrimination in the workplace have
changed significantly. Over the past two decades, an increasing number
of Federal court cases, building on the Price Waterhouse rationale,
have found protection under title VII for those asserting
discrimination claims related to their sexual orientation.\45\ In light
of this legal framework, and for consistency with the position taken by
the Department's OFCCP in its recently issued Sex Discrimination
regulations and the Department of Health and Human Services in its rule
implementing Section 1557 of the ACA, the Department will interpret sex
discrimination under this Final Rule to cover treatment of employees or
applicants adversely based on their sexual orientation where the
evidence establishes that the discrimination is based on gender
stereotypes. The Department will continue to monitor the developing law
on sexual orientation discrimination as sex discrimination, and will
consider issuing further guidance on this subject as appropriate.
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\41\ See, e.g., 80 FR 9989 (Feb. 25, 2015) (DOL amendment of the
regulatory definition of spouse under the Family and Medical Leave
Act (FMLA) so that eligible employees in legal same-sex marriages
are treated the same way for FMLA purposes as employees in opposite-
sex marriages); 45 CFR 155.120(c)(1)(ii) and 156.200(e) (HHS
regulations barring discrimination on the basis of sexual
orientation by Health Insurance Marketplaces and issuers offering
qualified health plans); U.S. Citizenship and Immigration Services,
Same Sex Marriages, https://www.uscis.gov/family/same-sex-marriages
(last accessed May 13, 2016) (treating immigration visa petitions
filed on behalf of same-sex spouses in the same manner as those
filed on behalf of opposite-sex spouses).
\42\ For example, in 1996, the Supreme Court struck down an
amendment to the Colorado constitution that prohibited the State
government from providing any legal protections to gay, lesbian, and
bisexual individuals. Romer v. Evans, 517 U.S. 620 (1996). And, just
last year, the Supreme Court ruled in Obergefell v. Hodges, 135 S.
Ct. 2584 (2015), that states may not prohibit same-sex couples from
marrying and must recognize the validity of same-sex couples'
marriages. See also United States v. Windsor, 133 S. Ct. 2675 (2013)
(declaring unconstitutional the federal Defense of Marriage Act's
definition of ``marriage'' as only a legal union between a man and a
woman); Lawrence v. Texas, 539 U.S. 558 (2003) (declaring
unconstitutional a state statute criminalizing consensual same-sex
sexual conduct).
\43\ Baldwin, 2015 WL 4397641 (July 16, 2015). EEOC relied on
several analyses to reach this conclusion: a plain reading of the
term ``sex'' in the statutory language, an associational analysis of
discrimination based on ``sex,'' and the gender stereotype analysis
announced in Price Waterhouse v Hopkins, 490 U.S. 228 (1989).
\44\ Id. at 13 (quoting Oncale v. Sundowner Offshore Servs., 523
U.S. 75, 79 (1998) (alteration in original) (internal quotation
marks omitted)).
\45\ See, e.g., Prowel, 579 F.3d at 291-92 (harassment of a
plaintiff because of his ``effeminate traits'' and behaviors could
constitute sufficient evidence that he ``was harassed because he did
not conform to [the employer's] vision of how a man should look,
speak, and act--rather than harassment based solely on his sexual
orientation''); Nichols v. Azteca Rest. Enter., Inc., 256 F.3d 864,
874-75 (9th Cir. 2001) (coworkers' and supervisors' harassment of a
gay male because he did not conform to gender norms created a
hostile work environment in violation of Title VII); Hall v. BNSF
Ry. Co., No. C13-2160 RSM, 2014 WL 4719007, at *3 (W.D. Wash.
September 22, 2014) (plaintiff's allegation that ``he (as a male who
married a male) was treated differently in comparison to his female
coworkers who also married males'' stated a sex discrimination claim
under title VII); Terveer v. Billington, 34 F. Supp. 3d 100 (D.D.C.
2014) (hostile work environment claim stated when plaintiff's
``orientation as homosexual'' removed him from the employer's
preconceived definition of male); Heller v. Columbia Edgewater
Country Club, 195 F. Supp. 2d 1212, 1224 (D. Or. 2002) (``[A] jury
could find that Cagle repeatedly harassed (and ultimately
discharged) Heller because Heller did not conform to Cagle's
stereotype of how a woman ought to behave. Heller is attracted to
and dates other women, whereas Cagle believes that a woman should be
attracted to and date only men.''); Centola v. Potter, 183 F. Supp.
2d 403 (D. Mass. 2002) (``Sexual orientation harassment is often, if
not always, motivated by a desire to enforce heterosexually defined
gender norms. In fact, stereotypes about homosexuality are directly
related to our stereotype about the proper roles of men and
women.''). Cf. Videckis v. Pepperdine Univ., No. CV 15-00298 DDP
(JCx), 2015 WL 1735191, at *8 (C.D. Cal. April 16, 2015) (harassment
and adverse treatment of students because of their sexual
orientation may state a claim of sex discrimination under title IX,
because it is a form of sex stereotyping; indeed, ``discrimination
based on a same-sex relationship could fall under the umbrella of
sexual discrimination even if such discrimination were not based
explicitly on gender stereotypes'').
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Disability
Multiple commenters supported the Department's proposal to add
disability to the list of protected categories against which
apprenticeship programs may not discriminate. An individual commenter
asserted the need for more apprenticeship programs that are open to
individuals with disabilities, as
[[Page 92038]]
individuals with disabilities continue to struggle to find and keep
employment. A number of comments raised specific questions about how
the proposed disability non-discrimination and affirmative action
obligations would be implemented. Many of these comments are addressed
in the discussions of Sec. Sec. 30.7 and 30.11, but we respond to two
of these concerns here because they implicate the purpose of the
proposed rule and, to some extent, questions of applicability that are
germane to Sec. 30.1. Specifically, one commenter cited other federal
regulations to which they must adhere that prohibit the employment of
workers who perform work that present dangers to themselves, co-
workers, and the general public. Other commenters implied generally
that employment of individuals with disabilities was problematic in
their particular industry due to physical requirements of the position.
As to the first, nothing in this Final Rule requires sponsors to
employ individuals who present dangers to themselves or others. The
rule incorporates the ``direct threat'' defense that is well-
established in disability law jurisprudence, which specifically allows
an employer to require that an individual be able to perform the
essential functions of the position held or desired without posing a
direct threat to the health or safety of the individual or others in
the workplace. As to the second, to the extent that commenters are
seeking exemptions from the disability protection in the Final Rule due
to their particular industry, the Department declines to grant such
exemptions. Requests to exempt sponsors from disability-related
obligations in this Final Rule for safety-sensitive positions or for
physically demanding jobs are based on the fundamentally flawed notion
that individuals with disabilities as a group are incapable of working
in these jobs. The Department does not support this belief and will not
construct an avenue to permit sponsors to avoid recruiting and
selecting individuals with disabilities for certain apprenticeships. We
acknowledge that some individuals with certain disabilities--as well as
some individuals without disabilities--may not be able to perform some
jobs; this does not countenance broader exclusions from the obligations
set forth in this rule.\46\ Not all disabilities have physical
limitations, and not all physical limitations will be relevant to the
job at hand.
---------------------------------------------------------------------------
\46\ See Associated Builders & Contractors, Inc. v. Shiu, 30 F.
Supp. 3d 25, 44 (D.D.C. 2014), aff'd, 773 F.3d 257 (D.C. Cir. 2014),
cert. denied, 135 S. Ct. 2836 (U.S. June 15, 2015) (``Indeed, many
disabilities would have little effect on employment by construction
contractors. For example, `a person with an auditory processing
disorder would typically need no accommodation to work as [a]
carpenter. A person with a significant stutter would ordinarily need
no accommodation to operate machinery.' These examples are not an
exhaustive list and there are many additional disabilities that,
with reasonable accommodation, would not preclude an individual from
engaging in even more construction-industry jobs.'') (internal
citations omitted).
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Proposed Additional Grounds
Several commenters suggested other possible bases for protection
against discrimination in apprenticeship programs, including caregiving
status (e.g., parental responsibilities), military service, and
criminal background. These protected categories are beyond the scope of
what was proposed in the NPRM, therefore we did not add them to the
Final Rule. However, we note that discrimination based on some of these
proposed additional categories may be actionable under already existing
categories or under other, already applicable, laws.
Paragraph 30.1(b): Applicability
Proposed Sec. 30.1(b) simplifies the earlier description of the
scope of the provision by stating clearly that the rule applies ``to
all sponsors of apprenticeship programs registered with either the U.S.
Department of Labor or a recognized SAA.'' A number of comments raised
questions regarding how the obligations of this rule would apply
differently, if at all, to the different models of sponsors. Some
sponsors employ the apprentices and thus their control over the terms
and conditions of employment is more clear, while ``group'' sponsors
work with groups of employers where apprentices may be hired or placed
and the various types of employment actions prohibited by this rule may
be undertaken by these employers, rather than the sponsor.
Throughout the Section-by-Section analysis below, the Department
has provided clarification with respect to implementing particular
requirements depending on the model of sponsorship. In general, per the
text of Sec. 30.1(b), the Department recognizes the sponsor as the
entity assuming the equal employment opportunity and affirmative action
obligations of this part. To the extent that the sponsor has the
ability to control, or otherwise has input into, any of the various
employment actions held unlawful by these regulations, its obligations
under these regulations are clear. In those situations where
discriminatory actions or other actions in violation of this part are
taken by participating employers, when the sponsor has knowledge of
such actions it has an obligation to undertake steps to address the
violation. Historically, this has been accomplished by written
agreements entered into between the sponsor and employer setting forth
``reasonable procedures . . . to ensure that employment opportunity is
being granted,'' \47\ as well as through the recordkeeping requirements
obligating the sponsor to keep adequate employment records of its
apprentices. Were certain categories of sponsors exempted from these
general obligations, it could render meaningless many portions of these
regulations and the role of the apprenticeship sponsor to help ensure
equal employment opportunity that has existed for several decades.
---------------------------------------------------------------------------
\47\ See existing 29 CFR 30.4(c)(10).
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Paragraph 30.1(c): Relationship to Other Laws
Proposed Sec. 30.1(c) clarified that part 30 would not invalidate
or limit the remedies, rights, and procedures under any Federal law, or
the law of any State or political subdivision, that provides greater or
equal protection for individuals under the protected bases. One
advocacy organization recommended that the Department work with the
EEOC to ensure that part 30 is consistent with other agency directives,
including the 2012 EEOC guidance on employer consideration of criminal
records. To that end, we note, as we did in the NPRM, that these
regulations generally follow Title VII legal principles in their
interpretation of the non-discrimination protections in this Final
Rule.
An advocacy organization and a State agency commented on the
possible linkages between this proposed rule and the Workforce
Innovation and Opportunity Act (WIOA). We agree that the two
authorities interrelate in important ways to provide broad
nondiscrimination protection to apprentices. WIOA encourages the use of
registered apprenticeship and the public workforce system provides an
opportunity to connect a broad talent pool with the opportunities of
apprenticeship, as well as to provide resources and supportive services
to assist in connecting individuals to apprenticeship and supporting
them through successful completion and career attainment. Section 188
of WIOA also provides comprehensive nondiscrimination protections. The
Department will work to ensure that these statutory regimes work in
tandem to provide broad and consistent worker protection.
[[Page 92039]]
Proposed Sec. 30.1(c) also recognized as a defense to a charge of
violation of part 30 that a challenged action is required or
necessitated by another Federal law or regulation, or that another
Federal law or regulation prohibits an action that would otherwise be
required by part 30. A national JATC noted that the proposed regulatory
text states that ``It may be a defense . . .,'' and instead recommends
that the Department change the word ``may'' to ``shall'' in the last
sentence of Sec. 30.1(c). The Department respectfully declines to make
this change, as whether a defense will succeed is necessarily a fact-
specific inquiry which amending the language to ``shall'' would
foreclose. Further, this provision is identical to OFCCP's regulations
implementing section 503 of the Rehabilitation Act of 1973 (section
503) and the Vietnam Era Veterans Readjustment Assistance Act of 1974
(VEVRAA) programs,\48\ and the consistency among these DOL programs is
desirable, especially for those entities that may need to comply with
both.
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\48\ See 41 CFR 60-300.1(c)(2) and 60-741.1(c)(3).
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One specific potential conflict of laws clarification sought by
multiple commenters was the interaction of certain obligations under
this rule and obligations under the Employee Retirement Income Security
Act of 1974 (ERISA). Many apprenticeship programs are employee benefit
plans governed by ERISA. Among other things, ERISA provides that,
subject to certain exceptions, the assets of an employee benefit plan
shall never inure to the benefit of any employer and shall be held for
the exclusive purpose of providing benefits to participants and
defraying reasonable administrative expenses. In discharging their
duties under ERISA, plan fiduciaries must act prudently and solely in
the interests of the plan participants and beneficiaries, and in
accordance with the documents and instruments governing the plan
insofar as they are consistent with the provisions of ERISA.\49\
Although apprenticeship plans may differ in structure and operations
from other ERISA plans, the plan fiduciaries must still abide by the
general fiduciary standards in part 4 of title I of ERISA. The
Department's Employee Benefits Security Administration (EBSA) is
responsible for interpreting and enforcing the provisions of part 4 of
title I of ERISA.
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\49\ 29 U.S.C. 1103(c)(1), 1104(a)(1)(A), (B) and (D).
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Some commenters asserted that using assets of apprenticeship plans
to pay for many of the tasks required in the proposed regulations to
gain or maintain registered status under the National Apprenticeship
Act would not be consistent with obligations imposed on plan
fiduciaries under ERISA. These commenters cited guidance EBSA issued in
2012 concerning the use of apprenticeship plan assets for graduation
ceremonies and to engage in outreach activities and advertise the
program to potential apprentices.\50\ The commenters asserted that a
plan should have a defense against a violation of the proposed
regulations if the apprenticeship plan's governing board or committee
determines that it would violate ERISA to expend plan assets to take
compliance actions required to gain or maintain registered status.
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\50\ EBSA Field Assistance Bulletin (FAB) 2012-01 (Apr. 2,
2012).
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EBSA has taken the position that there is a class of activities
referred to as ``settlor'' functions that relate to the formation,
design, and termination of plan, rather than the management of the
plan, that generally are not activities subject to title I of ERISA.
EBSA has concluded that although expenses attendant to settlor
activities do not constitute reasonable plan expenses, expenses
incurred in connection with the implementation of settlor decisions may
constitute reasonable expenses of the plan.\51\ A plan sponsor's
decision to register an apprenticeship plan under the National
Apprenticeship Act is such a settlor decision of plan design. In the
Department's view, established ERISA guidance on settlor activities
supports the conclusion that reasonable expenses incurred in
implementing a decision to be a registered apprenticeship plan would
generally be payable by the plan to the extent permitted under the
terms of the plan's governing documents.
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\51\ See, e.g., Letter to Carl J. Stoney, Jr. (Advisory Opinion
2001-01A, Jan. 18, 2001).
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The commenters also expressed concern about the application of
ERISA's fiduciary standards because registered status may result in
benefits for the apprentice plan's sponsors in addition to the benefits
provided to the plan's participants. In Advisory Opinion 2001-01,
dealing with the benefits an employer may secure from sponsoring a tax
qualified pension plan, EBSA expressed the view that in the case of
such a plan design decision that confers benefits on both the plan
sponsor and the plan, a plan fiduciary is not required to take into
account the benefits conferred on an employer in determining whether
expenses for implementing the plan design decision constitute
reasonable expenses of the plan.
A commenter asserted that ERISA may require plan fiduciaries to
withdraw from the Department's registration program if the increased
cost to the plan of compliance with the proposed regulations would be
greater than the economic benefits to the plan from registered status.
The commenter cited guidance issued by EBSA concerning investments
selected because of the collateral economic or social benefits they may
further in addition to their investment returns to the plan.\52\
Registered status is clearly connected to the purpose of an
apprenticeship plan and provides a range of direct benefits to the plan
and the apprentices participating in the plan. Accordingly, EBSA does
not believe its guidance in Interpretive Bulletin 2015-02 applies to
the decision of whether to maintain a plan as a registered
apprenticeship plan.
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\52\ 29 CFR 2509.2015-02 (Interpretive Bulletin 2015-02).
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ERISA requires that plan fiduciaries act prudently and solely in
the interest of the plan's participants in choosing how to comply with
the federal regulatory requirements for registered status. Where an
apprenticeship program is intended to be registered with the
Department, the fiduciaries may treat the reasonable costs of
compliance with registration regulations as appropriate means of
carrying out the plan's mission of training workers.
Some commenters requested clarification of ERISA's impact on the
proposal's requirement that a registered apprenticeship plan establish
linkage agreements enlisting the assistance and support of pre-
apprenticeship programs, community-based organizations, and advocacy
organizations in recruiting qualified individuals for apprenticeship,
and in developing pre-apprenticeship programs. These commenters noted
that participants in pre-apprenticeship programs are not participants
in the apprenticeship plan and pointed out that ERISA plan fiduciaries
must discharge their duties for the exclusive purpose of providing
benefits to the plan participants and defraying reasonable plan
administrative expenses. In the Department's view, where plan
fiduciaries prudently determine that supporting quality pre-
apprenticeship programs and other workforce pipeline resources are
necessary to maintain the plan's registration, or are otherwise
appropriate and helpful to carrying out the purposes for which the plan
is established or maintained, assets of the plan may be used to defray
the reasonable expenses of such support. Such advantages could include,
among other things, more efficient outreach
[[Page 92040]]
and recruitment, and broadening the base of qualified and diverse
applicants. For more information on what qualifies as a quality pre-
apprenticeship program, see OA's Training and Employment Notice 13-12
(TEN 13-12), dated November 30, 2012.
Finally, one commenter said it is unclear why these defenses are
limited to actions required by another Federal law or regulation, and
recommended that these defenses be expanded to include actions required
or prohibited by any applicable State law or regulation. This commenter
did not specifically identify a provision of State law that would be in
conflict with these regulations, and we would decline to introduce any
such broad defense contrary to general principles of preemption.
Definitions (Sec. 30.2)
With regard to definitions included in the NPRM, we did not receive
comments on the definitions for ``administrator,'' ``apprentice,''
``apprenticeship program,'' ``Department,'' ``EEO,'' ``electronic
media,'' ``employer,'' ``genetic information,'' ``journeyworker,''
``major life activities,'' ``Office of Apprenticeship,'' ``physical or
mental impairments,'' ``race,'' ``reasonable accommodation,'' and
``Registration Agency.'' We made no changes to the proposed definitions
for these terms. The others for which comments were received are
discussed below.
``Apprenticeship Committee''
This proposed definition comes from part 29, where this term is
also used. An SWA suggested that the definition of ``apprenticeship
committee'' should be revised to encompass group sponsor structures as
well as individual sponsor structures, and commented that the language
throughout the rule is geared towards an individual sponsor structure
and not inclusive of group sponsor structures. The Department notes
that this definition is identical to the definition contained in part
29. As worded, it is intended to apply to group sponsors as well as
individual sponsors. Accordingly, the Final Rule retains the definition
as proposed.
``Direct Threat''
This term was added because the proposed rule included disability
among the list of protected bases covered by part 30, and the ``direct
threat'' defense is well-established under the Americans with
Disabilities Act (ADA), as amended, and other disability laws. A
national JATC expressed concern that the proposed definition would
require apprenticeship programs to hire medical professionals to
provide ``reasonable medical judgement'' because this proposed
definition states that the process for determining whether an
individual poses a direct threat is based on ``reasonable medical
judgment.'' The commenter warned that this would pose a significant
financial burden for sponsors, and said that the definition should
either be changed or removed. As discussed above, the proposed
definition for this term is taken directly from title I of the ADA, as
amended, and from the EEOC implementing regulations. The Department
intends that this proposed term will have the same meaning as that set
forth in the Americans with Disabilities Act Amendments Act of 2008
(ADAAA) and implemented by the EEOC in 29 CFR part 1630. Sponsors and
participating employers subject to the ADA, as amended, therefore are
already required to comply with this provision under that authority.
Any departure would create an unwanted discrepancy between federal
disability laws. Further, we note that hiring medical professionals to
provide ``reasonable medical judgment'' is not required by this rule
(nor the ADA, as amended). EEOC guidance provides that determining
whether a ``direct threat'' exists is an individual assessment
``considering the most current medical knowledge and/or the best
available objective evidence.'' \53\ (Emphasis added.) The Department
interprets this rule consistently with that guidance. Even if medical
knowledge were used, it often can be obtained from the individual's own
physician, rather than an in-house physician hired for such purposes.
Accordingly, the Final Rule retains the definition as proposed in the
NPRM.
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\53\ EEOC Enforcement Guidance on the Americans with
Disabilities Act and Psychiatric Disabilities, available at https://www.eeoc.gov/policy/docs/psych.html (last accessed May 18, 2016).
---------------------------------------------------------------------------
``Disability''
This term was added because the proposed rule included disability
among the list of protected bases covered by part 30. One commenter
explicitly supported this definition as consistent with other Federal
laws, most notably the ADA and ADAAA. One commenter requested
clarification of the term ``disabled individual,'' and suggested that
the definition and goals should differentiate between individuals with
learning disabilities and other types of disabilities. Another
commenter, in asking for clarification about the definition of
disability, expressed concern that the construction industry is
physically demanding on both body and mind, and that its program asks
applicants if they can perform the work required in the industry and if
they are physically able regardless of any disabilities. Disability law
does not distinguish between ``types'' of disabilities, but rather
whether an individual has, or is regarded as having, an impairment that
substantially limits one or more major life activities, or has a record
of such impairment. We therefore decline to separate out particular
``types'' of disabilities for different treatment. With regard to
selections in particular industries, again, disability law does not
differentiate. It is a well-established tenet of disability law that an
individual must be qualified to perform the essential functions of the
job, with or without reasonable accommodation, in order to be
protected. The proposed definition (as well as the selection provisions
in Sec. 30.10 herein) reflects that, and we adopt it as proposed.
Regarding the phrase ``a record of such an impairment'' in the
proposed definition of disability, one commenter asked for
clarification as to what type of record would be acceptable
verification of an individual having a documented disability. Again,
this language was intended to mirror identical language in the ADA,
etc., and should be interpreted in the same manner as it is in the ADA.
Generally, the phrase ``record of'' does not require a written record,
but rather prohibits discrimination against someone because they are
known to have had a disability, for instance, a person who has
recovered from cancer or mental illness.
As discussed above, the proposed definition for this term is taken
directly from title I of the ADA, as amended, and from the EEOC
implementing regulations. The Department intends that this proposed
term will have the same meaning as what was set forth in the ADAAA and
implemented by the EEOC in 29 CFR part 1630.
``Employer''
The NPRM proposed slight modifications to the definition of
``employer'' in part 30 to conform to the definition of the term in
part 29, where this term is also used. We did not intend this
alteration to change how the term is interpreted.
Two national unions expressed concern that, by adopting the
definitions of ``sponsor'' and ``employer'' in 29 CFR part 29, the
proposed rule would allow for a sponsor to conduct its workforce
analyses of the
[[Page 92041]]
relevant incumbent workforce (required in proposed Sec. 30.5(b))
without accounting for ``all occupational titles in its registered
apprenticeship program,'' should that sponsor include subcontractors or
other entities owned or controlled by the sponsor in its apprenticeship
program. In this way, they assert that a sponsor could otherwise
delegate to an employer its obligations under the rule, thus avoiding
enforcement and broad equal employment opportunity for apprentices. It
proposed that the Department amend both the definition of ``sponsor''
and ``employer'' to include subcontractors and other entities owned and
controlled by the sponsor or employer. This latter concern was
addressed in the discussion of Sec. 30.1, which clarified that the
rule's obligations apply broadly to all sponsors, and will require
partnership and information-sharing with employers to effectuate their
non-discrimination and affirmative action obligations. The obligations
under Sec. 30.5(b) will be discussed in that part of the Section-by-
Section analysis. As the revised definition was offered solely to
conform with the existing definition of ``employer'' in part 29, we
retain it in the Final Rule as proposed.
``Ethnicity''
An SWA said that the term ``Latino'' should be used instead of
``Hispanic'' because the term ``Latino'' is broader and includes
``Hispanic'' groups, but the term ``Hispanic'' does not include all
``Latino'' groups. Additionally, the commenter said that ``Latino''
status should not be limited to ``Spanish culture or origin'' because
some groups do not claim a European cultural or ancestral background,
and not all groups speak Spanish as a first language (e.g.,
Brazilians). In response to this comment, the Department notes that the
proposed definition is the same as that used under the Office of
Management and Budget's standards for the classification of Federal
data on race and ethnicity,\54\ as well as the definition in the EEOC's
EEO-1 reporting requirements. For consistency with other Federal data
collection requirements, we retain the definition as proposed.
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\54\ Available at http://www.whitehouse.gov/omb/fedreg_1997standards/ (last accessed June 3, 2016).
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``Pre-Apprenticeship Program''
The proposed rule included a definition of ``pre-apprenticeship
program'' because the existing rule refers to such programs, but does
not define this term. The proposed definition, drawn from a Training
and Employment Notice regarding pre-apprenticeship,\55\ was intended to
provide clarity on what constituted and/or qualified as a pre-
apprenticeship program. It is worth noting that this Final Rule does
not specifically require sponsors to develop their own pre-
apprenticeship programs, but rather includes requirements that sponsors
partner with appropriate entities, such as pre-apprenticeship programs,
as part of an outreach and recruitment strategy to address
underutilization and impediments to equal employment opportunity. The
Department received numerous comments addressing this proposed
definition, which were generally supportive, but which suggested
improvements.
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\55\ Office of Apprenticeship Training and Employment Notice 13-
12 (TEN 13-12), dated November 30, 2012.
---------------------------------------------------------------------------
One commenter expressed concern that the proposed definition of
``pre-apprenticeship program'' does not capture the full scope and
reach of high-quality pre-apprenticeship programs, and suggested that
the definition of a pre-apprenticeship program should not be limited to
programs that assist individuals in meeting the minimum qualifications
for selection into an apprenticeship program, but should be expanded to
include programs that provide training and education to individuals who
meet the minimum requirements for selection into an apprenticeship
program but seek additional training in order to remain competitive
with other applicants. While this commenter identifies laudable
objectives that many programs may accomplish, the Department's primary
focus for pre-apprenticeship programs is to enable participants to
obtain minimum requirements for selection into apprenticeship programs
to grow opportunities for those individuals. Nothing in the rule
prevents sponsors and other entities from designing or linking with
additional pre-apprenticeship programs that serve the ends noted by the
commenter. The Department is, however, revising the definition to align
with TEN 13-12, which addresses pre-apprenticeship programs. Among
other things, TEN 13-12 provides that pre-apprenticeship programs
maintain a documented partnership with at least one Registered
Apprenticeship program, to help ensure that the pre-apprenticeship
programs have the relationships in place to support the future success
of its participants.
Two national unions commented that the Department should also
clarify whether Job Corps programs satisfy the definition of pre-
apprenticeship. As indicated in the NPRM, many Job Corps programs have
been used and can serve as pre-apprenticeship programs. While not all
Job Corps programs are pre-apprenticeship programs, those Job Corps
programs consistent with the requirements of TEN 13-12--specifically,
those focusing on preparing individuals for entrance into and success
in a registered apprenticeship program, and which maintain a
partnership with a Registered Apprenticeship program--would qualify as
a pre-apprenticeship program.
A national JATC asked for clarification about the intent of the
requirement of collaboration in the definition of ``pre-apprenticeship
program.'' The JATC commented that if the intent is for a minimum of
two different types of entities to collaborate on a program, then two
employers or a single-employer group or a local union could not operate
a pre-apprenticeship program on its own. The JATC suggested that the
Department should expressly recognize that a joint-labor management
committee is an example of employer and union collaboration, and thus
could operate a pre-apprenticeship program. The Department notes that
the intent is to link the pre-apprenticeship program with an
apprenticeship program. This definition is not intended to require a
minimum of two entities given the different ways in which such a link
could occur.
Several commenters suggested broadly that the proposed definition
of ``pre-apprenticeship program'' should be in alignment with the
definition as written in the Department's TEN 13-12. Commenters
encouraged the Department to adopt a definition of ``pre-apprenticeship
program'' that includes elements that are essential for successful
linkage of a pre-apprenticeship program to an apprenticeship program,
and/or are otherwise described in TEN 13-12. The definition for ``pre-
apprenticeship'' in the proposed rule was specifically drafted to be
consistent with the TEN 13-12, including with its description of the
elements described therein, and the Department does not view any change
to the definition to be necessary. Sponsors should follow TEN 13-12 and
other relevant guidance in their interpretation of the definition
provided in the rule.
Numerous commenters recommended that the Department's definition in
proposed Sec. 30.2 should otherwise be more expansive in specifically
addressing: Barriers unique to women, people of color, and individuals
with
[[Page 92042]]
disabilities; standards for EEO/affirmative action in technical
instruction and selection procedures; and the length of tenure or
manner of payment expected in pre-apprenticeship programs. Again, while
one aim of pre-apprenticeship programs is to reach groups that are
traditionally underrepresented in apprenticeships, and the Final Rule
includes multiple ways in which that may happen (such as in the
discussion of Sec. 30.8), we believe that sort of elaboration is best
accomplished in those sections and in guidance such as TEN 13-12,
rather than in the definitions section of the regulation.
The last sentence of the proposed definition included the optional
provision of supportive services, such as transportation, child care,
and income support, to assist participants in the successful completion
of the pre-apprenticeship program. Several comments underscored the
need for resources, including from the Federal government, in order to
provide support services. We recognize the resources required to
provide such supportive services, which is a primary reason why the
provision of such services was not mandated in the definition. The
Department has generally expanded the role of apprenticeship and
provided opportunities for supportive resources under its WIOA program.
Additionally, many other Federal agencies offer some level of support
for Registered Apprenticeships.\56\ However, because these services are
not a mandated part of pre-apprenticeship programs, and because they
are not limited to pre-apprenticeship programs but could apply to
apprenticeship programs generally, the Final Rule deletes the sentence
on supportive services to avoid confusion.
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\56\ Federal Resources Playbook for Registered Apprenticeship,
https://www.doleta.gov/oa/federalresources/playbook.pdf.
---------------------------------------------------------------------------
A national JATC recommended that the Department provide guidance
that would reduce certain legal risks in operating pre-apprenticeship
programs to increase diversity and mitigate claims of reverse
discrimination. The JATC suggested that the Department could
significantly advance its efforts by providing final regulations that:
(1) Permit apprenticeship programs to include in their standards,
subject to Department approval, direct interview or direct entry from
pre-apprenticeship programs specifically designed for one or more
underrepresented groups and not others; (2) ensure that such options,
once adopted, would not violate part 30 rights for any other group; and
(3) provide that it is the Department's interpretation that such
approved methods do not violate title VII or other Federal civil rights
laws and have the same level of protection against claims as if
required under Federal law.
Providing guidance on the legality of direct entry programs
necessarily requires fact-specific questions as to how, and in what
context, that system is administered. Accordingly, we cannot provide
broad guidance on the second and third points above. As to the first,
generally speaking, an apprenticeship program may include in its
standards, with Departmental approval, a direct entry program targeted
toward a specific underrepresented group that is designed to address
underutilization. Indeed, such measures are specifically countenanced
by Sec. 30.8, referenced below. Beyond that, any such guidance
necessarily must proceed on a case-by-case basis. For instance, if a
single-employer sponsor draws its apprenticeship pool entirely from a
direct entry program that is specifically designed to target one racial
minority group, resulting in an apprenticeship pool that consists
entirely of members from that group, such a process could result in
underutilization of another minority group. Such a program, used in
concert with other selection mechanisms resulting in a less homogenous
apprenticeship pool, may not. The Department is available to provide
guidance, in consultation with its Office of the Solicitor, to sponsors
with questions about specific scenarios involving direct entry.
Finally, one comment raised the question of further guidance and
suggested updating TEN 13-12. One commenter suggested that the
Department issue an update to TEN 13-12 that incorporates references to
WIOA instead of the Workforce Investment Act of 1998 (WIA), and others
suggested that the guidance be updated to link quality pre-
apprenticeship programs with industry or sector partnerships as well as
apprenticeship-related provisions in WIOA's implementing regulations.
The Department updates its guidance periodically with a particular view
towards ensuring that references to other complementary legislative
schemes are correct, and will do so in this circumstance as well.
In conclusion, the definition is retained in the Final Rule as
proposed.
``Qualified Applicant or Apprentice''
The NPRM proposed to add this definition because of the addition of
disability to the list of protected bases covered by part 30. The only
comments received related to this proposed definition posed questions
about how ``qualified applicants'' related to the requirement in
proposed Sec. 30.5(c)(2) that utilization analyses take into account
the availability of those who have the ``present or potential capacity
for apprenticeship.'' Neither of these commenters raised issues with
the wording of this definition, which is taken directly from title I of
the ADA, as amended and from the EEOC implementing regulations. The
concerns raised by these commenters are addressed in the analysis of
the comments received relating to Sec. 30.5(c). The definition is
incorporated into the Final Rule as proposed.
``Selection Procedure''
The NPRM proposed a definition of ``selection procedure'' that was
consistent with the definition found in the Uniform Guidelines of
Employee Selection Procedures (UGESP) at 41 CFR part 60-3,\57\ because
program sponsors are already required to comply with those regulations
under the current part 30 and should be familiar with that definition.
Commenters sought a few minor changes to the definition, but the
Department declines to accept these changes in order to maintain
consistency with the term as used in UGESP, which has applied to
sponsors under these regulations for decades. Subsequent sections of
this analysis, particularly the discussion of Sec. 30.10, address some
of the finer questions commenters raised about selection procedures. If
further questions persist after publication of the rule, the Department
will certainly consider further guidance on acceptable selection
procedures.
---------------------------------------------------------------------------
\57\ The intent behind UGESP, originally adopted in 1978 by
several Federal agencies, including the Department, was to provide a
uniform set of principles on the question of the use of tests and
other selection procedures in making employment decisions. This
uniform set of principles is designed to assist employers, labor
organizations, employment agencies, and others to comply with
Federal nondiscrimination requirements. UGESP requires that
selection procedures which are found to result in an adverse impact
on employment opportunities of members of any race, sex, or ethnic
group be validated to show that they are correlated with,
representative of, or characteristic of successful performance of
the job in question.
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``Undue Hardship''
This proposed definition was added because of the proposed addition
of disability to the list of protected bases covered by part 30. The
concept of ``undue hardship'' is a well-established one under the ADA,
which provides that employers need not provide certain accommodations
if they will cause an undue hardship to the employer. A national JATC
suggested that the
[[Page 92043]]
requirements for documentation of undue hardship should be reduced
because they add the possibility of a significant administrative burden
on a registered apprenticeship program. As discussed above, the
proposed definition for this term is taken directly from title I of the
ADA, as amended, and from the EEOC implementing regulations. The
Department intends that this proposed term will have the same meaning
as what was set forth in the ADAAA and implemented by the EEOC in 29
CFR part 1630. For the sake of consistency, the Department has
determined that the requirements should remain the same.
An SWA requested clarification on the specific formula and
threshold a sponsor would need to reach to meet the eligibility
requirements for undue hardship. The EEOC has published guidance
discussing in detail the various factors that should be considered in
making an ``undue hardship'' determination,\58\ but these factors focus
broadly on the cost of the accommodation weighed against the financial
resources of the employer, and thus are necessarily fact-specific. If
sponsors have questions about undue hardship in particular
circumstances, the Department can provide technical assistance.
---------------------------------------------------------------------------
\58\ See EEOC Enforcement Guidance: Reasonable Accommodation and
Undue Hardship Under the Americans with Disabilities Act, available
at https://www.eeoc.gov/policy/docs/accommodation.html#undue (last
accessed May 5, 2016).
---------------------------------------------------------------------------
Beyond these definitions proposed in the regulations, several
commenters proposed additional definitions that should be included in
the regulations. These are discussed in turn below.
``Industry'' and ``Relevant Labor Pools''
A JATC expressed concern that the proposed rule did not provide a
definition of the term ``industry,'' and urged the Department to define
the term (as used in proposed Sec. 30.5(b)) more narrowly to avoid
comparisons of occupations that require different levels of skill,
education, and technical expertise. The commenter also asked the
Department to define the term ``relevant labor pools'' (in proposed
Sec. 30.4(a)(2)) to clarify the relationship between the relevant
recruitment area and the relevant labor pools. These terms are further
discussed in the relevant sections specified above, and so we decline
to define the term here. We note that the use of ``industry'' as the
grouping for analyses under the proposed Sec. 30.5 was not carried
over into the Final Rule, and thus there is no need to define it.
``Self-Identification as an Individual With a Disability''
Another national JATC recommended that the Department add language
to Sec. 30.2 that defines the phrase ``self-identification as an
individual with a disability,'' which is used in proposed Sec. 30.11.
The Department declines to define this compound phrase, the meaning of
which can be understood in the context of proposed Sec. 30.11.
``Sex''
Many advocacy groups, a professional association, and a national
union, urged the Department to include a definition of ``sex'' in Sec.
30.2 clarifying that discrimination on the basis of childbirth and
medical conditions related to pregnancy or childbirth are prohibited
forms of sex discrimination. This Department declines to address this
concern by adding a definition, but notes that the issue is addressed
in the discussion of Sec. Sec. 30.1 and 30.3(c) herein.
Equal Opportunity Standards Applicable to All Sponsors (Sec. 30.3)
The existing Sec. 30.3 was divided into six paragraphs and set
forth the equal opportunity standards for registered apprenticeship
programs: a sponsor's obligation not to discriminate on the basis of
race, color, religion, national origin, and sex and to engage in
affirmative action (existing paragraph (a)); and a sponsor's obligation
to incorporate an equal opportunity pledge into its apprenticeship
program standards (existing paragraph (b)). The remaining four
paragraphs of existing Sec. 30.3 set the effective date of the part 30
regulations for programs presently registered (existing paragraph (c)),
the registration requirements for sponsors seeking registration of new
programs (existing paragraph (d)); and the bases for exemption from the
requirement to develop an AAP (existing paragraphs (e) and (f)).
Proposed Sec. 30.3 reorganized this section by focusing upon the
equal opportunity standards in paragraphs (a) and (b) and removed
paragraphs (c) through (f), the substance of which was incorporated
into other parts of the rule for the sake of clarity. Proposed Sec.
30.3(a) and (b) built upon the equal employment opportunity standards
that are contained in current Sec. 30.3(a).
Paragraph 30.3(a)(1): Discrimination Prohibited
Proposed Sec. 30.3(a)(1) set forth the general prohibition against
discrimination on the bases of race, color, religion, national origin,
and sex--those listed in the current part 30--and added prohibitions
against discrimination on the bases of age (40 or older), genetic
information, sexual orientation, and disability. Proposed Sec.
30.3(a)(1) still specified the same general range of aspects of
apprenticeship programs that are covered, but reorganized the text, and
reworded it to follow the framework used in other equal opportunity
laws. This proposed paragraph received several comments.
Several commenters urged the Department to clarify throughout the
text of part 30 that the regulations prohibit discrimination on the
basis of pregnancy and gender identity as separate categories. As
discussed in the analysis of Sec. 30.1, the proposed rule modified the
EEO pledge that a sponsor must include in its Standards of
Apprenticeship, codified at Sec. 30.3(c) herein, to contain a
parenthetical after the listing of ``sex'' as a protected basis
explicitly including discrimination on the basis of gender identity and
pregnancy as forms of sex discrimination. This language is retained in
the final rule.
Proposed paragraph (a)(1) also listed all the various employment
actions that, if undertaken on the basis of a protected category, would
be unlawful. One broader comment raised by an SWA, addressed in part in
the discussion of Sec. 30.1 above, was that some of the employment
actions listed in paragraph (a)(1) were those undertaken by the
employer, not the sponsor, in certain group sponsor structures. For
instance, the commenter stated that group sponsors do not ``hire''
apprentices; rather, they place them with an employer. The commenter
recommended that this provision include language for all sponsor types.
We decline to change the regulatory text accordingly, as we believe it
can apply broadly with the following guidance. In the apprenticeship
model where the sponsor and the employer are the same entity or
otherwise under the control of a common management structure, the
prohibited employment actions listed herein are ones that can apply
specifically to the sponsor. In the model where the sponsor and
employer are different entities, such as the group sponsor structure
identified by the commenter, we appreciate that the sponsor may not
have direct control over certain of the employment decisions listed.
For instance, a participating employer may discipline an apprentice or
make a job assignment independent of the participating sponsor.
However, as discussed in the analysis of Sec. 30.1, sponsors and
employers in such apprenticeship models have historically entered into
[[Page 92044]]
written agreements setting forth ``reasonable procedures . . . to
ensure that employment opportunity is being granted.'' \59\ To the
extent that a participating employer enters into such an agreement and
engages in discrimination unlawful under this part, or even absent such
an agreement the sponsor otherwise learns of such discrimination
(either through complaints or its recordkeeping obligations under part
30), the Department would expect that the sponsor take action to
address the discrimination and, if unremedied, take steps to terminate
its relationship with the discriminating employer. While this certainly
requires a degree of oversight on the part of the sponsor, it is
consistent with past practice in group sponsorships and is necessary so
as to prevent expansive loopholes that could allow EEO elements of
apprenticeship programs to go entirely unregulated, frustrating the
purpose of this part.
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\59\ See existing 29 CFR 30.4(c)(10).
---------------------------------------------------------------------------
Other comments were raised as to the specific employment actions
delineated in paragraph (a)(1). One commenter noted that the term
``placement'' is more germane to a sponsor than the term ``hiring'' may
be. Accordingly, we have revised the Final Rule to include
``placement'' in addition to ``hiring,'' to the extent that either is
more applicable to a given sponsor. The same commenter also asked the
Department to clarify the definition of ``award of tenure'' as used in
this section. Upon review, this term does not appear to correspond to
aspects of apprenticeship programs. Accordingly, this term is not
included in the Final Rule.
Many commenters expressed the need for sponsors to ensure an
equitable schedule of rotation, assignments, training, and mentoring to
assure that all apprentices achieve core skill competencies. The
Department notes that ``rotation among work processes,'' ``hours of
training,'' and ``job assignments'' are already included in Sec.
30.3(a)(1)(iii), (vii) and (viii), while a lack of ``mentoring'' on the
basis of a protected category could fall under the proposed Sec.
30.3(a)(1)(x), which covers ``any other benefit, term, condition, or
privilege associated with apprenticeship,'' depending on the specific
facts. Similarly, other advocacy organizations recommended that the
Department add ``work assignments and training opportunities'' to the
list of activities for which a sponsor cannot discriminate to ensure
that these opportunities are afforded to all apprentices equally. The
Department agrees that both of these terms describe possible adverse
employment actions, but believes that the proposed Sec. 30.3(a)(1)(x)
covers these terms. Finally, one commenter suggested adding a paragraph
(a)(1)(xi) that would include supervision by a trained and skilled
journeyworker, where ``trained'' means familiar with EEO concepts and
with a passing knowledge of adult learning theory. This suggestion is
out of place in this section, which lists types of adverse employment
actions that could be unlawful if made on the basis of a protected
category.
Paragraph 30.3(a)(2): Discrimination Standards and Defenses
Proposed Sec. 30.3(a)(2) laid out the discrimination standards and
defenses in a framework similar to that used in other equal opportunity
laws. Proposed subparagraph (a)(2)(i) discussed standards and defenses
for race, color, religion, national origin, sex, or sexual orientation;
subparagraph (a)(2)(ii) discussed disability; subparagraph (a)(2)(iii)
discussed age; and subparagraph (a)(2)(iv) discussed genetic
information (numbered incorrectly in the NPRM as (a)(2)(iii)).
Numerous advocacy organizations urged the Department to clarify in
Sec. 30.3(a)(2) that, with respect to pregnancy, the Registration
Agency will apply the same legal standards and defenses as those
applied under the Pregnancy Discrimination Act (PDA) and the ADAAA, as
well as EEOC implementing regulations and enforcement guidance when
employers make or are obligated to make accommodations for a
substantial percentage of others similar in their ability to work. This
was the intent of the proposal and is the intent of the Final Rule, and
the regulatory language should be interpreted consistent with this
intent. Further, these commenters requested that the Department address
the need to provide reasonable accommodations for pregnancy and related
conditions, not only to the extent required to avoid discrimination on
the basis of pregnancy under the Supreme Court's recent decision in
Young v. United Parcel Service, Inc.,\60\ but also as an affirmative
measure aimed at breaking down barriers to women's acceptance and
advancement in apprenticeship programs. The NPRM explicitly described
its intent to follow all relevant PDA and ADA/ADAAA case law, including
Young, in interpreting nondiscrimination obligations. With respect to
the request to require any additional affirmative action to address and
provide reasonable accommodations on the basis of pregnancy, we decline
to specifically include such a requirement as beyond the scope of what
was proposed, but encourage sponsors to take steps to break down the
barriers raised by this comment.\61\
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\60\ 135 S. Ct. 1338 (2015).
\61\ We note that states may have pregnancy discrimination laws
detailing accommodation obligations beyond those in this this Final
Rule; if such laws apply to sponsors, they will need to take
additional steps to comply with these laws.
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An SWA requested clarification regarding the term ``apply the same
standards and defense'' and asked how it would apply those standards to
an individual sponsor. This subparagraph is intended to help
stakeholders identify the corresponding source of legal standard for
each prohibited ground of discrimination. The information included
after each explanation is intended to be helpful as an initial
reference but was not intended to be an exhaustive explanation. The
Department is available to provide technical assistance, in conjunction
with its Office of the Solicitor, to answer questions that arise as to
what standards or defenses might apply to specific situations.
A commenter expressed concern that the proposed language
``determining whether a sponsor has engaged in an unlawful employment
practice'' is not inclusive of a group sponsor structure because group
sponsors are not employers and do not employ apprentices. As set forth
in the analysis of Sec. 30.1 and earlier in this section, we believe
the non-discrimination provisions can apply to the range of sponsor
models, allowing that in a group sponsorship model, certain specific
employment actions may be undertaken by the employer, not the sponsor,
and thus actionable against the employer under various other civil
rights laws. However, the group sponsor, upon knowledge of such
violation, retains an obligation to address the violating activity with
the employer and, if continuing or otherwise unremedied, take steps to
remove the employer from participating in the apprenticeship program it
sponsors. For greater clarity beyond the language ``unlawful employment
practice,'' however, the Final Rule revises the text at the end of this
section to read ``unlawful practice under Sec. 30.3(a)(1),'' the
section which enumerates the types of actions that, if taken due to a
protected basis, would constitute unlawful discrimination.
The Final Rule contains one additional clarifying edit to Sec.
30.3(a)(2)(i), including Executive Order 11246 as a source for the
[[Page 92045]]
standards and defenses that will apply to the protected bases listed
under that paragraph. This addition was made because Executive Order
11246, like this Final Rule but unlike title VII, contains explicit
protections from discrimination on the basis of sexual orientation and
gender identity, and thus the Department will look to interpretations
of the Executive Order when evaluating claims under those bases.
Paragraph 30.3(b): General Duty To Engage in Affirmative Action
Proposed Sec. 30.3(b) strengthened and further detailed the
affirmative action obligation contained in the existing Sec.
30.3(a)(3), requiring that all sponsors, regardless of size, take a
discrete series of affirmative steps to provide equal opportunity in
apprenticeship.
Before turning to each of the specific requirements proposed in
Sec. 30.3(b), we address some general comments on this paragraph. An
SWA expressed concern that the NPRM confounded the roles of sponsor and
employer, asserting that some of the proposed requirements in Sec.
30.3(b) do not make sense when considered from the perspective of a
sponsor that does not have a relevant workforce but merely coordinates
multiple employers in a group program (e.g., proposed requirements
relating to training and dissemination of EEO policy). This commenter
suggested that the rule should clarify that the sponsor, where
different from the employer, must share the relevant affirmative action
responsibilities and requested concrete guidance on how the sponsor
should ensure employer compliance. The Department recognizes that there
is a difference between the roles of sponsor and employer; it also
recognizes that under the existing rules, many of these obligations are
among the listed outreach and recruitment efforts of which sponsors
must undertake ``a significant number.'' \62\ To be sure, complying
with many of these obligations would be facilitated by involvement of
participating employers to develop procedures to ensure equal
opportunity is being granted; this is precisely the arrangement that
has historically been created by sponsor-employer apprenticeship
agreements that we expect to continue.
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\62\ See existing 29 CFR 30.4(c).
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Paragraph 30.3(b)(1): Assignment of Responsibility
Proposed Sec. 30.3(b)(1) requires sponsors to designate an
individual to be responsible and accountable for overseeing the
sponsor's commitment to equal opportunity in apprenticeship. A national
JATC recommended that the Department clarify that it is the sponsor,
whether employer or JATC, that bears responsibility for all aspects of
meeting the requirements of this standard, rather than one individual.
Several commenters expressed that identification of an individual to
fulfill this role would be burdensome.
In reviewing the comments, the Department wishes to clarify that it
is the sponsor that bears the responsibility for meeting the
requirements of this standard. The proposed requirement is intended to
facilitate the administration and accountability of the program. As
stated in the NPRM, the Department anticipates that this requirement
would be fulfilled by the individuals who are already providing
oversight for the program, such as a named apprenticeship coordinator.
This proposal would not create new duties for the sponsor that the
sponsor would not already have; rather, it would require the sponsor to
identify a point person for overseeing its commitments to equal
employment opportunity, whether that person actually performs all the
necessary tasks or instead coordinates or monitors the performance of
those tasks. While proposed Sec. 30.3(b)(1) requires each sponsor to
identify ``an individual,'' in light of the comments indicating that
some sponsors might find placing this responsibility on a single person
burdensome, the language has been amended to require each sponsor to
identify ``an individual or individuals'' to provide greater
flexibility.
Paragraph 30.3(b)(2): Internal Dissemination of Equal Opportunity
Policy
Proposed Sec. 30.3(b)(2) required the sponsor to develop internal
procedures to communicate its equal opportunity and affirmative action
obligations to apprentices, applicants for apprenticeship, and
personnel involved in the recruitment, screening, selection, promotion,
training, and disciplinary actions of apprentices. This proposed
requirement is similar to that in Sec. 30.4(c)(4) of the existing part
30, which addresses internal communication of the sponsor's equal
opportunity policy. However, proposed Sec. 30.3(b)(2) would be
required of all sponsors, regardless of size, and would make this
communication mandatory.
An individual commenter suggested that the Department strengthen
the language in Sec. 30.3(b)(2) that ``the sponsor must require that
individuals connected with the administration or operation of the
apprenticeship program take the necessary action to aid the sponsor in
meeting its nondiscrimination and affirmative action obligations'' by
specifying that this includes interceding when observing suspected acts
of harassment or discrimination on the job or at school. We
respectfully decline to include this specific language in the
regulation. It is a well-established principle of discrimination law
that, if the employer learns of harassing conduct and fails to take
reasonable care to prevent and promptly correct the harassment, the
employer can be held liable.\63\ This principle applies to sponsors in
the apprenticeship context as well. Beyond this, we believe the anti-
harassment measures and right to file complaints otherwise set forth in
this part will address the issue raised by the commenter. We do include
one change to the regulatory text in (b)(2), specifying that the target
of the dissemination of the equal opportunity policy include
``individuals connected with the administration or operation of the
registered apprenticeship program.'' This is made partly to make this
paragraph consistent with others in Sec. 30.3 that use this exact
phrasing. It is also to clarify the intent that the dissemination of
the equal opportunity policy should be broad, reaching, for instance,
supervisors, foremen, journeyworkers, and other non-supervisory
employees working alongside apprentices in the sponsor's program.
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\63\ See EEOC Enforcement Guidance: Vicarious Employer Liability
for Unlawful Harassment by Supervisors, accessible at https://www.eeoc.gov/policy/docs/harassment.html (last accessed May 18,
2016).
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Proposed Sec. Sec. 30.3(b)(2)(i) and (ii) required a sponsor to
publish its equal opportunity pledge in apprenticeship standards and in
appropriate publications and post the pledge on bulletin boards,
including through electronic media, accessible to apprentices and
applicants for apprenticeship. Multiple commenters believed the
proposed requirements requiring the equal opportunity pledge to be
posted in apprenticeship standards and in appropriate publications,
posted on bulletin boards, and through electronic media would not be
burdensome, but a national JATC asserted the proposed requirement was
at least partially redundant of part 29, which already requires
insertion of the equal opportunity pledge. The Department notes that
the proposed publishing requirement purposely goes beyond what is
required in the part 29 equal opportunity pledge to include other
appropriate publications. In
[[Page 92046]]
response to a question about what constitutes these ``appropriate
publications,'' we note that the proposed regulation specified several
types; providing more specificity than this isn't feasible given that
what is appropriate will likely vary from sponsor to sponsor. The
Department can provide technical assistance on this issue on a more
individualized basis. The Final Rule does make a minor correction to
(b)(2)(i), deleting ``and other appropriate publications,'' which was
duplicative language, and replacing it with ``or other documents
disseminated by the sponsor or that otherwise describe the nature of
the sponsorship,'' and another non-substantive minor edit for better
readability.
While commending the intent of the proposed language requiring wide
dissemination of EEO policies, an advocacy organization commented that
the use of the term ``accessible'' in paragraph (b)(2)(ii) carries an
additional meaning for individuals with disabilities and urged that
dissemination of a sponsor's EEO policies should be ``accessible'' in
the broadest possible terms. Similarly, another advocacy organization
recommended that the Department amend Sec. 30.3(b)(2) to require that
any electronic media platform used must be accessible to blind
applicants (i.e., compatible with screen-reading technology). The
Department notes that here ``accessible'' was intended to be
interpreted broadly, and each sponsors should make its EEO policies
available in alternative formats (such as large print, Braille and
other means to enable individuals with visual impairments to read for
themselves) upon request. This is consistent with existing obligations
under disability law that require accommodations of individuals unless
to do so would impose an undue hardship on the sponsor's operations.
An individual commenter recommended that the Department require
sponsors to use an inclusion statement to make the workplace
environment friendlier to current women in the trades, as well as more
welcoming to women considering joining the trade. The requirements to
publish and post the equal opportunity pledge are intended to
communicate that the apprenticeship programs are welcoming to all
apprentices regardless of race, color, religion, national origin, sex,
sexual orientation, genetic information, age, or disability. A required
inclusion statement was not proposed in the NPRM, and accordingly, the
Department declines to so amend this provision. Nonetheless, the
Department encourages such statements to the extent that they serve to
further signal to all prospective apprentices that they are welcome,
which in turn may help sponsors obtain greater participation from
members of certain underrepresented populations.
Proposed Sec. 30.3(b)(2)(iii) required orientation and periodic
information sessions for apprentices, journeyworkers who directly
supervise apprentices, and other individuals connected with the
administration or operation of the sponsor's program. Many comments
received with respect to this requirement were generally positive. One
advocacy organization suggested that the Department go beyond the
proposal to require sponsors to, at a minimum, hold orientation and
information sessions for apprentices, supervisors, and other
individuals associated with an apprenticeship program on an annual,
rather than periodic, basis to ensure that individuals are aware of the
sponsor's EEO policy with regard to apprenticeship. We decline to
incorporate this specificity in order to maintain sponsors' flexibility
to conduct these sessions at intervals that make sense given the
schedule at which sponsors onboard new apprentices. Another commenter
recommended that the Department reiterate the importance of broadening
the awareness of the EEO policy among those on work sites who control
the circumstances of training by, for example, making clear that
``other individuals connected with the administration or operation''
include the foreman and supervisors who establish the accepted practice
on the job site. While not included in the regulatory text, we have
provided this guidance in this preamble in the discussion of Sec.
30.3(b). We have also clarified in the regulatory text of paragraph
(b)(2)(iii) that sponsors include the anti-harassment training required
by paragraph (b)(4) of the final rule in these orientation and
information sessions in order to make clear at the outset that
harassing conduct will not be tolerated.
Many commenters raised concerns regarding the costs of such
orientation and information sessions. In crafting this Final Rule, the
Department has attempted to balance the burden on sponsors with
establishing a meaningful and effective equal opportunity policy
dissemination process. For instance, the Department notes that
sponsors, as a matter of effective program management, must communicate
some information jointly to apprentices and at least some other
individuals connected with the administration and operation of its
apprenticeship program during the course of its sponsorship.
Accordingly, the sessions established in these regulations need not
necessarily require new training sessions or timetables, but can
incorporate the communication of the EEO policy information and anti-
harassment training into existing sponsor-participant communications
and training sessions. We additionally repeat that the schedule for
these sessions remains ``periodic'' to provide sponsors with some
timing flexibility.
Several commenters raised issues regarding the implementation of
this requirement in various scenarios in which the sponsor is not the
employer. These commenters noted generally that the requirement would
place a particular burden on multi-employer sponsors, that the
employers would generally be better placed to provide EEO training of
this sort, and the constantly changing nature of the participating
employers and employees further expanded the burden. Accordingly, one
commenter recommended that the Department eliminate the proposed
requirement that program sponsors conduct training and orientation for
journeyworkers who supervise apprentices. The Department recognizes
that sponsors operate apprenticeship programs in numerous industries
and occupations, involving a wide range of working conditions and
environments, and that sponsors are not always the employer of the
apprentice. However, the proposal was largely based on existing actions
already undertaken by sponsors, such as that set forth in the existing
Sec. 30.4(c)(10), to ``develop[ ] reasonable procedures between the
sponsor and employers of apprentices to ensure that employment
opportunity is being granted . . . .'' As discussed above, the
Department has not prescribed in the proposed rule the exact nature and
frequency of these sessions, to allow sponsors some flexibility
depending on their circumstances, but expects sponsors to carry out
these activities in good faith, which may in many cases involve
coordinating with participating employers. Accordingly, we decline to
diverge from the existing regulations and create different obligations
for different models of sponsorship.
Cost concerns were also raised with respect to the maintenance of
records required by proposed Sec. 30.3(b)(2)(iv). To clarify, the
Department notes that this obligation is consistent with recordkeeping
already required in the existing regulations, which obligate
maintenance of ``information relative to the operation of the
apprenticeship
[[Page 92047]]
program.'' \64\ For paragraphs (b)(2)(i) and (ii), the obligation could
be met simply by retaining a copy of the documents where the EO pledge
is included. For paragraph (iii), retaining a copy of any written
materials used to effectuate the sessions, as well as some
memorialization of when the session occurred and who attended, would
suffice for compliance purposes.
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\64\ See existing 29 CFR 30.8(a).
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Paragraph 30.3(b)(3): Universal Outreach and Recruitment
Proposed Sec. 30.3(b)(3) required all sponsors to ensure that
their outreach and recruitment efforts for apprentices extended to all
persons available and qualified for apprenticeship within the sponsor's
recruitment area regardless of race, sex, ethnicity, or disability
status. Many commenters, including advocacy organizations and an SWA,
expressed support for the proposed universal outreach and recruitment
requirements. Some advocacy organizations reasoned that, given
historical outreach and hiring practices focused primarily on men,
broader outreach efforts are necessary to increase women's awareness of
these opportunities.
Other commenters expressed concerns regarding the scope and cost of
this outreach requirement. One commenter recommended that the
Department remove the proposed requirement in Sec. 30.3(b)(3)(i) that
sponsors maintain lists of recruitment sources that will generate
referrals from all demographic groups and the proposed requirement in
Sec. 30.3(b)(3)(iii) to notify recruitment sources in advance of
apprenticeship opportunities, noting that existing advertising
mechanisms were sufficient. The Department notes that the proposed
revision mirrors outreach and recruitment efforts set forth in the
existing Sec. 30.4(c)(1), so the requirement to do so now should not
be new for many sponsors. Further, the data in the introduction to this
preamble showing widespread underutilization of certain groups indicate
that existing advertising mechanisms may not be sufficient to draw
interest from as broad and diverse a base as possible.
An SWA expressed concern regarding the costs of outreach activities
for small sponsors, such as those with fewer than five apprentices,
that were not previously required to conduct mandatory recruitment and
outreach activities, and that it might serve as a deterrent to creating
new registered apprenticeship programs. To this, in addition to the
response above, we note the Department intends to provide guidance to
sponsors who need assistance finding sources for recruitment. While
outreach and recruitment activities take some degree of time, when done
purposefully they can provide immense benefits to the apprenticeship
program, bringing a wide range of previously untapped talent into the
workforce.
Finally, another commenter recommended that to limit costs the
Department retain the proposed minimum activities but add to Sec.
30.3(b)(3) that a sponsor must engage in recruitment that would
``reasonably be expected'' to encourage persons with a potential
capacity for apprenticeship to submit an application, suggesting the
following revised language:
(3) Universal outreach and recruitment. The sponsor will
implement measures to ensure that its outreach and recruitment
efforts for apprentices extend to all persons available for
apprenticeship within the sponsor's relevant recruitment area
without regard to race, sex, ethnicity, or disability and are
reasonably expected to encourage persons with a potential capacity
for apprenticeship to submit an application regardless of sex, race,
ethnicity, or disability.
The language proposed by the commenter appears to add another
requirement, thus possibly adding to any burden that might be created.
Insofar as the commenter is seeking to soften the requirement that a
sponsor ``implement measures to ensure that its outreach and
recruitment efforts extend to all persons available,'' to clarify, the
implementation of this provision will be reviewed by evaluating the
range of recruitment sources, not by checking that every available
person was reached. As noted above, during compliance reviews the
Department will consider a sponsor's good faith efforts in this regard.
The Department accordingly declines to amend the provision as
requested.
Regarding the question of whether the required outreach activities
would result in a benefit to justify the costs, a national JATC
commented that the studies cited in the NPRM did not include any
empirical evidence that additional outreach by construction industry
training funds would result in greater participation of women and
minorities in the apprenticeship programs. The commenter said that the
studies cited in the NPRM showed that the barriers to female
participation are societal and there are no consensus best practices to
address them.
As an initial response to this comment, the Department does not
agree that there is no evidence that additional outreach would result
in greater participation by traditionally underrepresented groups. As
stated in the introduction of the rule, the experience of highway
construction apprentices in Oregon, where extensive efforts to increase
diversity have occurred, demonstrates that the participation rate of
women and minorities can increase markedly when it is prioritized. In
response to the comment that underutilization is strictly ``societal,''
which we interpret to mean out of the control of apprenticeship
sponsors to address, while we do not suggest that discrimination is the
entire reason for utilization disparities, there is ample evidence that
it is a contributing factor. As described earlier, comments received
from several women working in the construction trades, including those
who have participated in apprenticeship programs, detail repeated
examples of differential treatment in job assignments, training, and
promotions, as well as sexually harassing work environments. Another
commenter cited academic research demonstrating that, despite the
ability and interest of women to work in these jobs, external barriers
in recruitment, hiring, training, and retention of women persists.
Indeed, a 2012 study funded by the U.S. Department of Labor identified
``harassment and exclusion at male-dominated worksites'' as one of
three primary barriers underlying women's low rate of participation in
construction trades apprenticeships,\65\ and a 2013 report from the
National Women's Law Center describes the ways in which both overt and
subtle forms of discrimination discourage women from entering and
remaining in the construction field.\66\
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\65\ An Effectiveness Assessment and Cost-Benefit Analysis of
Registered Apprenticeship in 10 States, available at https://wdr.doleta.gov/research/FullText_Documents/ETAOP_2012_10.pdf (pp.
50-52) (last accessed May 27, 2016).
\66\ Women in Constuction: Still Breaking Ground, available at
http://www.nwlc.org/sites/default/files/pdfs/final_nwlc_womeninconstruction_report.pdf (last accessed May 27,
2016).
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A number of comments made suggestions for additional specificity.
Several advocacy organizations recommended that the Department include
all of the protected bases in Sec. 30.3(b)(3) to ensure inclusive
outreach and recruitment and avoid prohibited discrimination. Asserting
that apprenticeship programs have a history of imposing maximum age
requirements and other age-discriminatory practices, one advocacy
organization urged the Department to add ``age'' to the bases on which
registered apprenticeship programs have a general duty to engage in
affirmative action in outreach and recruitment. As discussed above, the
affirmative action provisions of this part follow generally other such
affirmative
[[Page 92048]]
action programs which do not require specific outreach and recruitment
obligations on the basis of age. Nothing in the rule, however, would
prevent a sponsor from engaging in such activities.
Some advocacy organizations urged the Department to add to the list
of examples of relevant recruitment sources in Sec. 30.3(b)(3)(i)
organizations that represent and serve women, people of color, and
other underrepresented populations including individuals with
disabilities. Further, these commenters suggested that the Department
provide links to such resources on its Web site. As discussed above,
the Department expects to provide technical assistance to sponsors to
help them identify relevant recruitment sources, either through
publication on its Web site or through more targeted communication.
To underscore that outreach alone is not sufficient to recruit
women in particular, some advocacy organizations suggested that the
Department include language in Sec. 30.3(b)(3) to require that
outreach is paired with career education that includes formal and
informal apprenticeship information and orientation sessions describing
what is entailed in the apprenticeship, the requirements and processes
for applying, and explanations of the selection process. Related to
this, these commenters recommended OA post on its Web site a list of
resources for technical assistance and examples of career education
materials, including links to WANTO-developed resources. These comments
call for new provisions that, while laudable, go beyond the scope of
the outreach efforts proposed in the NPRM, and we decline to require
them in the Final Rule. As stated above, the Department intends to
provide guidance to sponsors relating to relevant recruitment sources.
An advocacy organization urged the Department to strengthen the
universal outreach requirements by requiring that apprenticeship
programs report on the results of their outreach efforts (e.g., how
many candidates were received from each source, whether those
candidates were accepted into the program, and why or why not) and
modify outreach efforts over time in accordance with the reported
results. The Final Rule requires such reporting in written AAPs for
sponsors who are underutilized and required to engage in targeted
recruitment, as data would be particularly important to sponsors in
that standing, but we decline to extend it to the more general outreach
requirement. Similarly, another advocacy organization recommended that
the Department propose accountability targets for outreach,
recruitment, and retention. This is largely the purpose of the
utilization goals set forth in the sections dealing with the written
AAP obligations.
A national union and a national JATC said that the Department
should clarify the scope of the ``relevant recruitment area,'' as that
term is used throughout Sec. 30.3(b)(3). Explaining that JATCs are
often located in remote areas, such that the training centers are not
in the same labor market as the work opportunities provided by the
signatory contractors, these commenters recommended that the Department
add clarifying language to Sec. 30.3(b)(3). The Department addresses
the proper interpretation of ``relevant recruitment area'' in the
discussion of Sec. 30.5, and submits that sponsors should use that
interpretation to understand the meaning of the term in this section as
well.
Commenters also recommended that the Department develop, update,
and disseminate annually lists of recruitment resources, including
contact information, by occupation and industry that sponsors can use.
The commenters suggested that this would ease compliance determinations
made by Registration Agencies, in addition to easing the cost burden on
sponsors so that they could expend recruitment resources on direct
contact and ongoing coordination with the staff of recruitment
resources and meeting with groups of potential candidates. The
Department and SAAs maintain relationships with some recruitment
sources, and we provide such information to sponsors, as available and
appropriate. The Department intends to increase technical assistance
available to sponsors and provide additional recruitment sources to the
extent that our resources allow.
Another commenter expressed concern that requiring sponsors to
``develop and update annually a list of current recruitment sources
that will generate referrals from all demographic groups within the
relevant recruitment area,'' could result in Registration Agencies
holding sponsors accountable if recruitment and referral sources do not
refer qualified applicants, despite good faith efforts on the part of
the sponsor. For this reason, the commenter recommended revising the
language from ``sources that will generate referrals'' to ``sources
likely to generate referrals . . . .'' We decline to make this change.
In the circumstance that the commenter raises, we would expect that the
sponsor, upon realizing that the sources it is using are not fulfilling
the intent of this provision, would seek alternative or additional
sources that are more effective at referring qualified applicants. The
obligation is intended to be a dynamic one in which sponsors actively
engage, rather than a rote, ``check the box'' requirement.
Regarding the proposed Sec. 30.3(b)(3)(iii) requirement that
sponsors provide recruitment sources advance notice, preferably 30
days, of apprenticeship openings, we received comments on all sides of
the issue. Several commenters urged the Department to require no less
than 30 days advance notice, which these commenters said would allow
sufficient time for the notice of an opening to be processed, acted
upon, and disseminated by the recruitment source and reach prospective
applicants. These advocacy organizations stated that, historically,
short public notice of opening periods disadvantaged nontraditional
pools of applicants who did not have the benefit of familial or
collegial connections to become aware of apprenticeship opportunities
and the application processes, selection methods, and/or criteria for
competitive candidates.
By contrast, another commenter recommended that the Department
eliminate the requirement to provide 30 days advance notice of
apprenticeship openings. This commenter reasoned that when an
apprenticeship opening occurs, it may not always be feasible to provide
referral sources with 30 days advance notice, particularly when new
openings occur as a result of a new project or when someone suddenly
discontinues participation in the apprenticeship program. Another
proposed that the Department revise the provision to read ``provide
recruitment sources notice of such openings within 30 days of the
opening being published,'' that is, 30 days after the opening. Finally,
one commenter said the time set forth in the regulation should not be
``preferred,'' but rather a concrete amount of time.
We note in the first instance that the proposed language mirrored a
provision at Sec. 30.4(c)(1) of the existing regulations that
established 30 days in advance as a firm deadline, rather than a
preferred one. Thus, the intent was to carry over an obligation that
was familiar to sponsors, but provided more flexibility to account for
differing logistical possibilities. Taking into consideration the
comments we received on both sides, we believe this approach remains
the best one for those reasons, and thus we retain the proposed text in
the Final Rule.
[[Page 92049]]
Paragraph 30.3(b)(4): Maintaining Apprenticeship Programs Free From
Harassment, Intimidation, and Retaliation
Proposed Sec. 30.3(b)(4) required a sponsor to develop and
implement procedures to ensure that its apprentices are not harassed
because of their race, color, religion, national origin, sex, sexual
orientation, age (40 or older), genetic information, or disability, and
to ensure that its workplace is free from harassment, intimidation, and
retaliation. The proposal included four specific requirements set forth
in separate subparagraphs: (i) Communicating to all personnel that
harassing conduct will not be tolerated; (ii) providing anti-harassment
training for all personnel; (iii) ensuring that facilities and
apprenticeship activities are available to apprentices without regard
to protected bases; and (iv) establishing procedures for handling and
resolving complaints about harassment.
Several commenters generally supported the proposal. Numerous
advocacy organizations, a professional association, and individual
commenters expressed support for anti-harassment protections as being
critical to prevent and confront the discrimination that is often
pervasive at work sites, including sexual harassment and stereotypes,
and to increase retention over time. One individual commenter stated
that when women apprentices are isolated on jobs with only men they are
subject to harassment and unsafe working conditions. Several women
submitted comments describing their personal experiences being subject
to sexual harassment as an apprentice on a work site. An advocacy
organization commented that age-based harassment is a growing problem,
citing EEOC Enforcement & Litigation statistics.
Several advocacy organizations urged the Department to strengthen
further the proposed anti-harassment provisions in Sec. 30.3(b)(4).
One of these organizations cited a study that it asserted shows that 3
in 10 women respondents in an interview study reported frequent sexual
harassment, harassment on the basis of their sexual orientation, or on
the basis of their race or ethnicity. In particular, these
organizations asserted that strong anti-harassment measures will help
ensure that more women complete their apprenticeship programs and
recommended that the Department add to the anti-harassment measures at
Sec. 30.3(b)(4)(i)-(iv) a requirement that sponsors must make all work
assignments and training opportunities available without regard to the
protected bases under the proposed rule. This principle is already
protected by Sec. 30.3(a)(1).
An industry association recommended that the Department clarify
what ``workplace'' means in Sec. 30.3(b)(4) because, in many cases,
apprenticeship sponsors are not the employers of the apprentices and
only have control over what takes place within their own facilities. To
address this concern, the Department has replaced the term
``workplace'' with ``apprenticeship program,'' to clearly indicate the
sponsor's role in preventing harassment, intimidation, and retaliation.
This can apply to both individual and group sponsors, in the manner
discussed previously.
One commenter suggested strengthening the proposed Sec.
30.3(b)(4)(i), which requires sponsors to communicate to all personnel
that harassing conduct will not be tolerated, to include opportunities
for apprentices to share information about harassment or intimidation
on the job or at school to identify common problems, which could create
a valuable feedback mechanism for sponsors interested in confronting
harassment. The Department also received significant comments regarding
proposed Sec. 30.3(b)(4)(ii) requiring that sponsors ``provide anti-
harassment training to all personnel.'' A number of commenters
expressed concerns about the costs they asserted sponsors would incur
as a result of the proposed requirement that sponsors must provide
anti-harassment training to all personnel. For example, a national JATC
urged the elimination of this provision in the Final Rule because many
union-sponsored apprenticeship programs are statewide or regional and
the costs of bringing in every journeyworker for anti-harassment
training would impose a large burden on the program. Further, this
commenter reasoned that the provision is unnecessary because
contractors are required by law to maintain a nondiscriminatory
workplace and union representatives can assist in helping them do so.
In contrast to the comments raising the issue of burden, some
commenters urged the Department to require additional training or add
more specific language to the proposed requirement that sponsors must
``provide anti-harassment training to all personnel.'' These
suggestions included requiring regular and ongoing professional
development on cultural competency, anti-discrimination, and
affirmative action requirements for apprenticeship training staff,
instructors, administrators, and support staff, both in classroom-
related instruction and on work sites, as well as best practice
guidelines.
To address these competing concerns, the Department has maintained
the proposal's requirements that sponsors communicate that harassment
will not be tolerated and provide anti-harassment training, but we
clarify the proposal in three ways. First, in response to concerns that
the proposal's requirement to provide training and communications to
``all personnel'' was too broad, we revise the Final Rule to state that
sponsors must ensure these obligations reach ``individuals connected
with the administration and operation of the apprenticeship program,
including all apprentices and journeyworkers who regularly work with
apprentices.'' This is narrower than the ``all personnel'' language
proposed, but, as stated in the discussion of paragraph (b)(2) where
this language is also used, should be broadly interpreted to include
apprentices, supervisors, foremen, journeyworkers, and other non-
supervisory employees working regularly alongside apprentices in the
sponsor's program. It would not require, for instance, communication to
employees of participating employers who do not work in proximity to,
or otherwise interact with, apprentices in these programs, although we
maintain that the broadest possible communication of anti-harassment
principles and obligations is a best practice.
Second, paragraph (b)(4)(i) of the Final Rule requires that
sponsors are required to provide training for this same narrower
category of personnel, and clarifies that this must not be a mere
passive transmittal of information, but must include participation by
trainees in a training program, such as attending a training in person
or completing an interactive training program online.
Third, the Final Rule clarifies that the training content must
include, at a minimum, the communication of the following information:
A statement that harassing conduct will not be tolerated; a definition
of harassment and examples of the types of conduct that would
constitute unlawful harassment; and the right to file a harassment
complaint. We believe communicating these elements as part of anti-
harassment training is fundamental to creating an environment where it
is broadly understood what constitutes harassment and that such
harassment has no place in an apprenticeship program.
We expect that some sponsors, in the course of their normal
business practices, already provide anti-
[[Page 92050]]
harassment training that covers some or all of what this Final Rule
requires. To the extent that sponsors can simply modify existing
training modules (including the orientation and information sessions
set forth in paragraph (b)(2)(iii) above) to include this training
obligation, doing so will limit the associated time and expense for
compliance. Further, to help sponsors comply with this training
obligation, the Department will provide technical assistance, including
links to materials relevant to the required contents of the anti-
harassment training, that sponsors and/or participating employers can
use.
Proposed Sec. 30.3(b)(4)(iii) required that ``if the sponsor
provides restrooms or changing facilities, the sponsor must provide
separate or single-user restrooms and changing facilities to assure
privacy between the sexes.'' An individual commenter urged the
Department to require job sites to have separate male and female
restrooms. Some advocacy organizations urged the Department to require
sponsors to have external locks on all single-user and sex-segregated
restrooms and changing facilities and to ensure that all restrooms and
changing facilities are enclosed, including a roof, to ensure privacy
between the sexes and support safety and health measures in accordance
with the findings and recommendations of the Advisory Committee on
Occupational Safety and Health in its report ``Women in the
Construction Workplace: Providing Equitable Safety and Health
Protection.'' Commenting that unsafe sanitary facilities are a large
challenge for women in nontraditional trades, two individual commenters
also recommended that the regulations ensure that women have access to
secure, safe, locked sanitary facilities. The Department notes that
rules regarding the sanitation of restrooms and changing facilities
apply more broadly to workplaces than to those that are part of an
apprenticeship program and this type of specificity was not proposed in
the NPRM. Nonetheless, the language ``to assure privacy'' implies that
such restrooms and changing facilities must be secure. For this reason,
the Department does not change the proposal on this account.
One advocacy organization suggested that the Department should
include specific language regarding access to appropriate sex-
segregated facilities for all workers in apprenticeship programs.
Numerous other advocacy organizations urged the Department to clarify
that program sponsors must permit transgender persons to access
restrooms and changing facilities based on their gender identity. As
discussed earlier, Sec. 30.3(a)(2) of the regulation provides that the
Department will look to relevant legal authorities to interpret whether
sponsors are engaging in unlawful sex discrimination.\67\ The
Department will continue to monitor the developing law related to the
issues raised by the commenters, and will consider issuing further
guidance on this subject as appropriate. Accordingly, the proposed
paragraph (b)(4)(iii) is retained in the Final Rule as paragraph
(b)(4)(ii).
---------------------------------------------------------------------------
\67\ Multiple cases have held that failure to provide access to
restrooms consistent with an individual's gender identity violated
Title VII. See Lusardi v. Dep't of Army, EEOC Appeal Doc.
0120133395, 2015 WL 1607756, at *8 (April 1, 2015); Hart v. Lew, 973
F. Supp. 2d 561, 581-82 (D. Md. 2013) (recognizing a transgender
plaintiff's title VII sex discrimination claim based in part on her
employer's repeated denial of access to the women's restroom).
However, as noted previously, the effect of the preliminary
injunction issued in Texas v. U.S., No. 7:16-cv-00054-O, 2016 WL
4426495 (N.D. Tex. Aug 21, 2016) is unclear at the time this rule
went to publication.
---------------------------------------------------------------------------
Proposed Sec. 30.3(b)(4)(iv) required that sponsors implement
procedures for handling and resolving complaints about harassment and
intimidation. An individual commenter requested that the Department
require sponsors to post such internal procedures in common areas of
schools, work sites, and meeting spaces. The requirement to ``establish
and implement'' implies providing notice that such procedures exist and
posting such procedures where apprentices would see them. The Final
Rule retains proposed paragraph (b)(4)(iv) in the Final Rule as
paragraph (b)(4)(iii), with the addition of a line stating that the
establishment and implementation of procedures for handling and
resolving complaints applies to complaints about retaliation, as well
as harassment and intimidation. This is in keeping with the broader
focus of paragraph (b)(4).
Paragraph 30.3(b)(5): Compliance With Federal and State Equal
Employment Opportunity Laws
Proposed Sec. 30.3(b)(5) required all sponsors to comply with all
applicable Federal and State laws and regulations requiring EEO without
regard to race, color, religion, national origin, sex, sexual
orientation, age (40 or older), genetic information, or disability.
Proposed paragraph (b)(5) largely duplicates the existing Sec. 30.10.
An SWA commented that the Sec. 30.3(b)(5) assignment of EEO
obligations to the sponsor ``or [in the case of a] joint apprenticeship
training committee, parties represented on such committee'' seems to
transfer responsibility from a sponsor to the applicable managers and
union officials, which would protect the sponsor from ever being
sanctioned (i.e., deregistered). The commenter asked why this privilege
applies only to joint committees and whether non-joint committees are
materially different in this regard. The Department clarifies that, as
stated earlier, the obligations of this part apply to all sponsors. It
recognizes that the language in parentheses ``or where the sponsor is a
joint apprenticeship committee, the parties represented on such
committee'' could be understood as an exception. Therefore this
language has been stricken.
Moreover, this commenter asserted that the reference to other laws
in proposed Sec. 30.3(b)(5) would require registered apprenticeship
stakeholders to enforce policies of programs and systems that are
outside of their familiar venue (e.g., vocational rehabilitation,
gender equity, or disability rights). The commenter asked whether
officials in those other policy areas will have reciprocal duties to
enforce registered apprenticeship standards. In response, the
Department notes that proposed Sec. 30.3(b)(5) carried forward the
provisions from existing Sec. 30.10. With this in mind, we clarify
that this proposed provision is not intended to incorporate by
reference the requirements of all Federal and State non-discrimination
laws and regulations. Rather, it recognizes that many sponsors may
already be subject to such laws, etc., and to the extent they are, they
must comply with them. Failure to do so may be grounds for enforcement
action under proposed Sec. 30.15. Such action would only be taken if
the violations of other Federal and State non-discrimination laws are
applicable to the sponsor and relate to the employment opportunity of
apprentices. To make this clear, language from existing Sec. 30.10,
``if such noncompliance is related to the equal employment opportunity
of apprentices and/or graduates of such an apprenticeship programs
under this part,'' has been inserted in the Final Rule.
Paragraph 30.3(c): Equal Opportunity Pledge
Proposed Sec. 30.3(c) carried forward the requirement set forth in
the current Sec. 30.3(b) for an equal opportunity pledge and include
age (40 or older), genetic information, sexual orientation, and
disability on the list of bases upon which a sponsor must not
discriminate, and included a parenthetical stating that
[[Page 92051]]
sex discrimination included discrimination on the basis of gender
identity and pregnancy. Apart from the comments addressed earlier
recommending that the ground of sex discrimination expressly recognize
sexual orientation discrimination and sex stereotyping as additional
forms of sex discrimination, which has already been discussed, no other
comments were received. Accordingly, the text is adopted as proposed.
Paragraph 30.3(d): Compliance
In order to clarify the time a sponsor has to comply with
obligations in this rule, rather than a catch-all ``effective date''
provision as was set forth in the proposed Sec. 30.20, the Final Rule
sets forth in the specific sections, as needed, when a sponsor must
come into compliance with the obligations set forth in that section. If
no such date is provided, it is intended that the sponsor must comply
with a particular section as of the effective date of the Final Rule.
Proposed Sec. 30.20 required that currently registered
apprenticeship programs have 180 days to come into compliance with the
provisions of Sec. 30.3, but did not specify a similar compliance
deadline for sponsorships newly registered after the effective date.
This new Sec. 30.3(d) carries over the 180-day compliance date for
currently registered programs from the proposed Sec. 30.20, and
clarifies that sponsors registered after the effective date will need
to comply with Sec. 30.3 upon registration or 180 days after the
effective date of this rule, whichever is later. This is consistent
with the proposal and will ensure that sponsors registered shortly
after the rule's effective date in no circumstance will have to come
into compliance more quickly than currently registered sponsors.
Affirmative Action Programs (Sec. 30.4)
The existing Sec. 30.4 set forth the regulatory requirements with
respect to AAPs, addressing: The adoption of an AAP in Sec. 30.4(a);
the definition of affirmative action in Sec. 30.4(b); the requirements
for broad outreach and recruitment in Sec. 30.4(c); the mandate that a
sponsor include goals and timetables where underutilization occurs in
Sec. 30.4(d); the factors for determining whether goals and timetables
are needed in Sec. 30.4(e); the establishment and attainment of goals
and timetables in Sec. 30.4(f); and that the Secretary of Labor will
make available to program sponsors data and information on minority and
female labor force characteristics in Sec. 30.4(g). Exemptions from
the requirement to adopt an AAP were found in the existing part 30 at
Sec. 30.3(e) and (f).
The NPRM proposed to restructure this section in order to
streamline, clarify, update, and improve the AAP requirements by making
clear the purpose of AAPs, stating who must adopt an AAP, listing the
required elements of AAPs, explaining the exemptions for maintaining an
AAP, and laying out the proposed new timing for internal review of
AAPs.
A number of commenters expressed concern with the burden associated
with maintaining AAPs generally. For example, a national JATC remarked
that the proposed AAP requirements would put a time and resource burden
on sponsors and an individual commenter warned that the proposed rule
could divert already-limited resources away from training programs and
opposed any rules that would increase costs for purposes of tracking
and reporting. A national JATC expressed concern that proposed Sec.
30.4 would make affirmative action requirements more difficult to
understand and comply with in general.
The Department understands the voluntary nature of apprenticeship
and that many program sponsors are under resource constraints, but
notes that the requirement to maintain an AAP is not a new requirement
and that all non-exempt sponsors (i.e., sponsors with 5 or more
apprentices) are currently required to develop and maintain such plans
with respect to women and minorities. As explained in the NPRM,
maintaining an AAP need not be an unduly burdensome undertaking.
Thousands of registered apprenticeships with AAPs have been established
under the existing regulations, and many have maintained and grown the
number of apprenticeships and the skill of their individual workers
notwithstanding the AAP obligations, and because of these obligations
have taken strides to diversify their program to more closely reflect
the available workforce. While these regulations add some new
obligations to the AAP, the intent was to streamline and clarify the
AAP as a whole, making it simpler to understand what compliance means
and easier to measure and achieve meaningful success--both for existing
apprenticeship programs and for the many companies looking to create
apprenticeship programs now and in the future. The Department has
thoroughly considered the concerns raised by the commenters with regard
to burden and, as described in the discussions of sections 30.4-30.8
herein, the Final Rule contains several changes from the proposal
designed to reduce further the burden of AAP compliance for sponsors
while maintaining an effective overall program.
Paragraph 30.4(a): Definition and Purpose
Proposed Sec. 30.4(a) included a revised definition of
``affirmative action program'' and explained that, in addition to
identifying and correcting underutilization, AAPs also are intended to
institutionalize the sponsor's commitment to inclusion and diversity by
establishing procedures to monitor and examine the sponsor's employment
practices and decisions with respect to apprenticeship, so that the
practices and decisions are free from discrimination, and barriers to
equal opportunity are identified and addressed.
Multiple commenters, including a national JATC and SWAs, disagreed
with the premise laid out in paragraph (a)(2) that ``absent
discrimination, over time a sponsor's apprenticeship program,
generally, will reflect the sex, race, ethnicity, and disability
profile of the labor pools from which the sponsor recruits and
selects.'' These commenters argued that the goals set forth in Sec.
30.4(a) do not take into account the societal and cultural factors that
influence an individual's decision to pursue apprenticeship and that
lack of diversity is not necessarily a direct result of discrimination,
and suggested that the Department remove paragraph (a)(2).
Specifically, one commenter said that it is impossible for the sponsor
to address underlying societal problems that influence lack of
participation by underrepresented groups, such as lack of access to
childcare or transportation. Some commenters remarked that compliance
with affirmative action requirements should be determined by whether
the sponsor has made significant efforts to meet its goals and
timetables.
We respectfully disagree with many of the comments on this proposed
language, which mirrors language in the OFCCP affirmative action
regulations and describes well-established rationales for affirmative
action. The idea behind maintaining an AAP is to combat any existing
societal factors that may have been influenced by previous
discriminatory norms and practices and that may continue to deter
underrepresented groups from seeking jobs in certain sectors. The data
cited at the beginning of this preamble demonstrates that stark
underutilization of the protected groups persists to the present. While
some amount of this disparity may not be directly attributable to
discrimination, the comments we received from individuals
[[Page 92052]]
in the trades and advocacy organizations describing widespread
harassment and other behavior that has a chilling effect on these
groups entering apprenticeships cannot be ignored. While a sponsor's
goals are aspirational, it should take underutilization as a signal
that it should look closely at its employment and outreach practices to
ensure that its practices are not preventing underrepresented groups
from applying to, participating, and advancing in apprenticeship. The
targeted outreach, recruitment, and retention practices outlined in
Sec. 30.8 are designed to help sponsors experiencing underutilization
overcome societal barriers to apprenticeship that may exist in that
field. As discussed more fully in Sec. 30.6, this is not a purely
arithmetic exercise. Each sponsor's compliance with its affirmative
action obligations will be determined in significant part by reviewing
the nature and extent of the sponsor's good faith affirmative action
activities and the appropriateness of those activities to identify
equal employment opportunity problems. A sponsor's compliance is
measured by whether it has made good faith efforts to meet its goals;
failure to meet goals is not itself a violation of these regulations.
An SWA requested a definition of the term ``barriers'' as it
applies to Sec. 30.4(a)(1) and (a)(2), and requested clarification
about how to detect and remove barriers. A national JATC and a national
union suggested that the Department provide guidance on ``specific,
practical steps'' to address barriers to equal opportunity to comply
with Sec. 30.4(a)(2).
``Barriers'' are any practices that prevent individuals from
realizing an equal opportunity to apply for and participate in
apprenticeship programs. These could include lack of effective outreach
so that certain populations are unaware of apprenticeship
opportunities, selection mechanisms that are not job related that
disfavor certain protected groups, attitudes toward or treatment of
certain individuals that are hostile or otherwise unwelcoming, or the
failure to provide equal opportunity in training, pay, work
assignments, discipline, or other employment actions. AAPs are tools
designed to assist a sponsor in detecting and diagnosing where barriers
may exist in its program and how they may be impacting certain groups.
By documenting and collecting information at various stages of its
program, including recruitment, selection, training, and assignment, a
sponsor can analyze whether any element of its program is adversely
impacting individuals within certain racial, sex, or ethnic groups. If
a sponsor discovers that its program is underutilized for women or one
or multiple underrepresented groups, this may be a sign that barriers
currently exist for those groups. The Department has identified
specific steps that a sponsor must take with regards to its outreach,
recruitment, and retention activities if it discovers that it is
underutilized, as set forth in Sec. 30.8, infra. Each sponsor is also
encouraged to take any additional steps it concludes could help
eliminate barriers. The Department can also provide more individualized
guidance and technical assistance to sponsors in order to help identify
and overcome any barriers to equal opportunity in apprenticeship.
Commenters, including a national JATC and a national union,
suggested that the Department should clarify Sec. 30.4(a)(3), which
refers to internal auditing as a tool to measure the sponsor's progress
in achieving an apprenticeship program that would be expected absent
discrimination, by specifying where the discrimination is presumed to
take place (e.g., on the construction site or in the classroom or other
training centers). One commenter suggested that this internal auditing
should be used to find specific areas of the sponsor's program where
practices might be causing a disparate impact on certain groups
throughout different phases of the program.
AAPs are designed to assist sponsors in identifying possible
discrimination that could be occurring at any point in the
apprenticeship program, whether that discrimination is occurring in the
application process, in job assignments, through harassment at a work
site, or any other element of the program. There is no single step in
the apprenticeship program where discrimination is presumed to occur
and the internal audit and review that accompanies a sponsor's AAP
should be thorough and detailed enough to allow the sponsor to learn of
any potential discrimination throughout its program. The Department
encourages each sponsor, when reviewing its compliance with AAP
obligations, to identify any specific areas or practices that may be
adversely affecting certain groups. An AAP is designed to be a tool to
assist sponsors in identifying any specific practices that may be
deterring or excluding women and/or minorities from participating fully
in the program.
Commenters also sought guidance on how the EEO responsibilities of
JATCs might differ from those of non-joint committees that directly
employ apprentices. Similarly, an industry association asserted that it
would be difficult to meet the requirements detailed in Sec.
30.4(a)(4) related to monitoring, examining, evaluating, and revising
employment decisions and policies because apprentices may be involved
in a JATC program that involves work for multiple employers, arguing
that these programs would be unable to monitor the employment policies
of each employer. An SWA commented that the proposed rule language
confuses the roles of sponsors and employers, and suggested that the
language could be clarified to define specific new responsibilities for
sponsors.
These comments raise issues addressed previously in the discussion
of Sec. Sec. 30.1 and 30.3. Generally speaking, it is--and has been
historically under these regulations--the responsibility of the sponsor
to ensure that all aspects of its program are being administered in a
non-discriminatory manner and to implement an AAP. This clearly applies
to the sponsor's own employment practices, policies, and decisions. In
programs where participating employers, rather than the sponsor,
control certain aspects of the apprenticeship experience, ensuring the
program's broad compliance with affirmative action obligations has been
accomplished through written agreements between sponsor and employer
setting forth procedures to ensure that employment opportunity is being
granted. This would include sponsors communicating with participating
employers about policies that could be resulting in discrimination and
addressing complaints of discrimination. As stated previously, while
this requires a degree of purposeful oversight on the part of the
sponsor, it is consistent with past practice in group sponsorships and
is necessary so as to prevent expansive loopholes that could frustrate
the purpose of this part.
An industry association suggested that the Department should use
the term ``equal opportunity program,'' as opposed to ``affirmative
action program.'' The Department declines to accept this suggestion. As
is made clear by the definition of ``affirmative action program'' that
was contained in the NPRM, and that is adopted in this Final Rule, an
AAP is ``more than mere passive nondiscrimination'' and requires
sponsors to ``take affirmative steps to encourage and promote equal
opportunity, to create an environment free from discrimination, and to
address any barriers to equal opportunity in apprenticeship.'' They
share many similarities with ``affirmative action
[[Page 92053]]
programs'' administered by OFCCP. Referring to these programs as
``affirmative action programs,'' a broadly used and well understood
concept, reinforces the idea that sponsors must not only refrain from
discriminating against apprentices and applicants for apprenticeship,
but must also take positive steps to correct any barriers to equal
employment. Additionally, many sponsors already maintain AAPs under the
current regulations, and changing the name of the program would create
unnecessary confusion and inconsistency.
Paragraph 30.4(b): Adoption of Affirmative Action Programs
Proposed Sec. 30.4(b) detailed who must adopt an AAP, and further
stated that, unless otherwise exempted by proposed Sec. 30.4(d), each
sponsor must develop and maintain a written AAP, which must be made
available to the Registration Agency any time thereafter upon request.
A comment from an SWA stated that affirmative action activities
proposed would be difficult for smaller apprenticeship program sponsors
with limited staffing and financial resources and may discourage
potential new sponsors from registering their programs. An exemption
for smaller apprenticeship programs is discussed in Sec. 30.4(d),
below. With regard to the more general burden concerns dissuading
entities from entering into or continuing registered apprenticeship
programs, the Final Rule allows sponsors, both existing and new, more
time to comply with AAP requirements than was proposed in the NPRM.
Sponsors will have two years, either from the effective date (for
sponsors registered with a Registration Agency at the time this Final
Rule becomes effective) or from the date of registration (for new
sponsors) in which to complete a written AAP. Details regarding the
compliance date of each of these components can be found in the
respective sections of this Final Rule, but in general, the Final Rule
provides more time than the NPRM to complete these steps, allows more
time between subsequent reviews of these obligations, and increases the
assistance provided by Registration Agencies to sponsors in order to
complete these obligations. As one example, during a new apprenticeship
program's provisional review conducted within one year of registration,
the Registration Agency will provide further guidance to assist in the
completion of the initial written AAP.
Paragraph 30.4(c): Contents of Affirmative Action Programs
Proposed Sec. 30.4(c) provided an outline of the five required
elements of an AAP: (1) Utilization analyses for race, sex, and
ethnicity; (2) establishment of utilization goals for race, sex, and
ethnicity, if necessary; (3) establishment of utilization analyses and
goal setting for individuals with disabilities; (4) targeted outreach,
recruitment, and retention, if necessary; and (5) a review of personnel
processes.
The Department's responses to specific comments addressing the five
required elements of AAPs are explained in those respective sections of
the preamble (Sec. 30.5-Sec. 30.9). In addition to the five elements
outlined above, a few advocacy organizations urged the Department to
include sexual orientation in AAPs and suggested that individuals
should be given the opportunity to self-identify as lesbian, gay,
bisexual, or transgender (LGBT). The Final Rule adds sexual orientation
as a protected basis upon which a sponsor may not discriminate, but,
consistent with OFCCP's AAPs, it does not include sexual orientation as
a basis upon which a sponsor must collect information or engage in
action-oriented programs.
A national JATC encouraged the Department to retain the existing
Sec. 30.4(c), which provides, in part, that ``the Department may
provide such financial or other assistance as it seems necessary to
implement the requirements of this paragraph.'' This commenter said
that deleting this section sends the wrong message to the regulated
community and the public because it appears the Department is leaving
the JATCs to use their own resources to comply with requirements.
While the Department will provide extensive technical assistance to
sponsors in complying with the AAP obligations of this Final Rule, as
discussed in greater detail in later sections, it has always been and
will continue to be the responsibility of each sponsor to allocate
sufficient resources to ensure that its program is being operated in a
non-discriminatory manner. Nonetheless, the Department does not need a
regulatory requirement in order to provide such assistance and the
Department may continue to offer such assistance in the future.
Accordingly, the Department declines to retain the prior language of
Sec. 30.4(c), and adopts the language in proposed paragraph (c)
without change.
Paragraph 30.4(d): Exemptions
Proposed Sec. 30.4(d) set forth the two exemptions to the
requirement that a sponsor develop an AAP: Programs with fewer than
five apprentices; and programs already subject to an approved equal
employment opportunity program providing for affirmative action in
apprenticeship that includes the use of goals for each underrepresented
group. These exemptions are the same as those that were contained in
the existing regulations. With regards to the exemption for programs
subject to an approved equal employment opportunity program, however,
proposed Sec. 30.4(d) required that a sponsor with an approved equal
employment opportunity program agree to extend that program to include
individuals with disabilities to ensure that all protected bases set
forth in the proposal would be addressed and that the sponsor was
taking the appropriate actions to ensure that protected individuals are
employed as apprentices and advanced in employment.
Paragraph (d)(1) of this section exempted sponsors with fewer than
five apprentices from the AAP obligations. Two industry associations,
an SAA, and an individual commenter expressed support for the exemption
for programs with fewer than five apprentices. One industry association
commented that the exemption should be expanded to exempt even larger
programs from the AAP requirement. In contrast, many commenters
suggested that all sponsors should be required to create AAPs,
regardless of the size of the apprenticeship program, arguing that the
exemption would exclude a significant portion of apprenticeship
programs from the equal opportunity requirements that the regulations
aim to provide. Two national unions commented that the proposed
exemption is contrary to the recommendation of the Advisory Committee
on Apprenticeship. These commenters suggested that the Department
should require all programs to maintain AAPs but support those programs
with limited resources through technical assistance.
Commenters also expressed concern that exempting small programs
would exclude programs in the early years of growth, when the AAP has
the greatest potential for positive, long-term impact. A national union
and a national JATC warned that there would be faster growth in small
programs rather than large programs, and that these new programs would
not have to maintain AAPs under the exemption. An SAA concluded that,
at a minimum, small
[[Page 92054]]
sponsors should be required to provide a strategy for outreach and
recruitment of a diverse workforce.
A national union and an industry association stated that the staff
and resource capacity that would be needed to comply with the
affirmative action requirements would also be needed to comply with the
universal outreach requirements in Sec. 30.3, and therefore there is
no additional reason to exempt small programs from the AAP
requirements. Similarly, two national unions argued that, by the
Department's own analysis, the burden to develop and maintain an AAP
would be minimal, and the benefits of ensuring EEO for all apprentices
would outweigh whatever burden was associated with maintaining the AAP.
Some commenters also argued that exempting small programs was
inconsistent with other Departmental programs, including those applying
to federal contractors.
Many commenters further argued that the exemption should not be
based on number of apprentices, but on the resources available to the
sponsor. For example, some commenters suggested that the exemption
should be tied to the sponsor's total number of employees, rather than
the number of apprentices, or to the contributions received by the
sponsor. Several unions and an industry association commented that most
large apprenticeship programs are trusts created by collective
bargaining agreements and are funded by contributions, which often have
limited flexibility in terms of resource allocation and subjects
programs funded by collective bargaining to the same cost-sensitivity
as small programs. On the other hand, a State agency commented that
entities with fewer than five apprentices are often large employers
with sufficient resources to comply with an AAP. A national union
commented that the exemption should only apply to sponsors that truly
do not have the resources to maintain an AAP, and should not just apply
to small programs across the board.
An SWA also asked whether the exemption would apply to sponsors
that operate multiple programs, each with fewer than five apprentices,
but with more than five apprentices across all programs.
Acknowledging the range of opinions on this topic, the Final Rule
retains the current exemption without change. Although some commenters
argue that the AAP requirement is so burdensome that even fewer
programs should be required to maintain these plans, the majority of
commenters and the Advisory Committee on Apprenticeship supported
eliminating the exemption altogether, claiming that the benefits of EEO
far outweighed any burden imposed by maintaining an AAP. The Department
agrees that the exemption should not be expanded, as currently
approximately seventy-five percent of apprenticeship programs already
fall within this exemption, and no compelling evidence has been
presented to increase the apprenticeship threshold for the exemption.
However, the Department believes that eliminating the exemption
entirely would be detrimental as well. While the creation and
management of an AAP need not be an unduly burdensome process, the
exemption for programs with fewer than five apprentices is a
longstanding one. We further disagree with the comment asserting that
the obligations under Sec. 30.3 are the same as those required by the
AAP; the AAP contains data collection and analysis obligations that
Sec. 30.3 does not. Although some commenters noted that not all small
programs have resource constraints and that, conversely, not all large
programs have resources sufficient to conduct AAPs, the Department
assumes that programs with fewer than five apprentices will generally
have fewer staff members administering the program than those with
significantly more apprentices. And, for any larger programs with
limited resources, these programs are currently subject to the AAP
requirements and should therefore have already absorbed the cost of
conducting an AAP into their operational budget. Furthermore, the
Department will provide technical assistance to programs in developing
their AAPs to ease any burden associated with this requirement.
In addition to the Department's concerns regarding the burden
imposed on small programs, the Department also notes that programs with
fewer than five apprentices may be less likely to generate enough data
to provide meaningful utilization analyses, given the smaller sample
size presented by each apprenticeship class. Moreover, in light of the
stronger equal opportunity standards--as outlined in Sec. 30.3--that
now apply to all sponsors, even those programs that are not required to
maintain AAPs will be required to take specific, proactive steps to
ensure nondiscrimination and increase their recruitment and outreach
efforts. The Department believes that these requirements will increase
the participation of underrepresented groups across all programs,
including those with fewer than five apprentices.
In response to those comments claiming that the exemption for small
sponsors is inconsistent with the requirements imposed upon federal
contractors, the Department notes that, while the nondiscrimination
provisions of Executive Order 11246, which are administered by the
Department's OFCCP, apply to contractors regardless of size so long as
they have qualifying contracts totaling $10,000 or more in a calendar
year, OFCCP's AAP requirements only apply to those contractors with 50
or more employees and a single contract of $50,000 or more.\68\
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\68\ See 41 CFR 60-1.5, 60-2.1.
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Finally, in response to the SWA's question regarding the
application of the exemption, any program that employs fewer than five
apprentices is exempt from the AAP requirement, regardless of the size
of any other programs that the sponsor may administer.
With regard to paragraph (d)(2)'s exemption of programs subject to
approved equal employment opportunity programs, which is carried over
from the existing rule in large part, many commenters supported the
exemption for programs that were already in compliance with an AAP, so
long as that AAP was extended to cover individuals with disabilities.
Some commenters sought clarification on how the exemption would
operate. For example, a State agency requested clarification as to
whether a sponsor would need to develop an AAP under proposed Sec.
30.4 if apprenticeship is not specifically dealt with as a sub-
classification or sub-goal in a plan developed for compliance with
other Federal programs such as E.O. 11246. Additionally, an industry
association asked for clarification as to whether or not there would be
an exemption for association program sponsors that obtain apprentices
from participating employers that are already in compliance with other
AAP requirements. With regard to the issue of including apprenticeship
as a sub-classification or sub-goal, the sponsor would need to
demonstrate that its plan extended to the operation of its
apprenticeship program, meaning that the apprentices would need to be
covered by the plan's nondiscrimination and affirmative action
standards. The sponsor would not need to develop separate goals for its
apprenticeship program, however, so long as the goals established
pursuant to the pre-existing plan are likely to equal or exceed the
goals that would be required pursuant to this Final Rule. With regard
to the second request for clarification, a sponsor must develop its own
AAP and may not simply rely on an AAP in place for its participating
employers.
[[Page 92055]]
Paragraph 30.3(e): Written Affirmative Action Plans
Finally, proposed Sec. 30.4(e) incorporated the existing practice
of requiring internal reviews of AAPs on an annual basis, but also
allowed a sponsor who could demonstrate that it was not underutilized
in any of the protected bases for which measurements are kept (race,
sex, and disability) and that its review of personnel practices did not
require any necessary modifications to meet nondiscrimination
objectives, to wait two years to complete its next AAP review. The
Department sought comments on this proposal, including specifically
whether stakeholders believe such an approach would incentivize AAP
success without compromising the overall goals of promoting and
ensuring equal employment opportunity in registered apprenticeship.
Several advocacy organizations expressed support for allowing
sponsors to wait two years to complete the next internal AAP review if
the review does not indicate underutilization or any necessary
modifications. These commenters suggested, however, that this extension
on the review period should only be allowed for sponsors that have not
received any substantiated complaints of discrimination, arguing that
this would provide a strong incentive for meeting affirmative action
and nondiscrimination obligation. An SWA expressed concern that this
requirement might be overly burdensome, and requested guidance on how
Registration Agencies should enforce the requirement to self-monitor.
Some advocacy groups were also concerned that external review
mechanisms should be in place. A few commenters suggested that sponsors
should be required to submit their written AAPs, or a summary of their
annual or biannual review, to the Registration Agency upon completion.
Similarly, an individual commenter suggested that sponsors should be
required to publish written AAPs, goals, and timetables on their Web
sites to increase transparency, accountability, and community
engagement. In order to better understand whether participation among
underrepresented groups is improving, an advocacy organization also
urged the Department to publish the participation of apprentices by
sex, race, ethnicity, and disability status annually. Finally, an
individual commenter asked for clarification as to whether or not AAPs
need to be approved by the Registration Agency prior to implementation.
The Department removes the proposed paragraph 30.4(e) from the
Final Rule and instead addresses the timeline for completing and/or
updating the particular elements of an AAP within each of those
respective sections of the Final Rule. As set forth in these sections,
the schedule for each respective AAP element will also apply uniformly
and will not depend whether a sponsor has met its utilization goals.
While the biannual review schedule for sponsors meeting their goals
would have reduced the burden for those sponsors from what is required
under the existing regulations, the Final Rule's timeline for the
review of AAP elements in many cases further reduces the frequency with
which sponsors need to review certain elements of their AAPs, thereby
reducing burden even further for all covered sponsors. This will also
increase consistency in sponsor obligations and streamline compliance
reviews for Registration Agencies.
In place of the proposed paragraph 30.4(e), the Final Rule sets
forth the obligation for creating a written AAP document. Written AAPs
are already required under the existing regulations, and are required
to be updated annually per existing Sec. 30.8. However, in practice,
most sponsors did not fully update their written AAPs until they were
scheduled for a compliance review, for reasons discussed further in
Sec. 30.5, below. Paragraph 30.4(e) establishes that initial written
AAPs must be completed within 2 years of the effective date of the
Final Rule for sponsors with existing apprenticeship programs, and
within 2 years of registration for all apprenticeship programs
registered after the effective date. Written AAPs must be subsequently
revised every time the sponsor completes workforce analyses for race,
sex, and disability as required by Sec. Sec. 30.5(b) and 30.7(d)(2) of
this part. In order to facilitate compliance and ease the burden of
this obligation, the Department will provide model written AAPs that
each sponsor may tailor to its own program. The Department will also
provide a timeline chart that clearly sets out when the sponsor must
comply with each AAP obligation.
In response to those commenters suggesting that sponsors should
publish or submit their written AAPs to the Registration Agency, the
Department declines to adopt these suggestions, as doing so would be
unnecessarily burdensome both for the sponsor and the Registration
Agency. Instead, the Registration Agency will ensure during the
sponsor's compliance review that the sponsor properly conducted and
documented all reviews and analyses that were required between
compliance evaluations. OA will also look into providing more
information regarding diversity in apprenticeship on its Web site.
Regarding the requests for clarification, existing written AAPs do not
need to be submitted to the Registration Agency, but will be reviewed
for compliance with this Final Rule at the sponsor's next compliance
review.
Utilization Analysis for Race, Sex, and Ethnicity (Sec. 30.5)
In the NPRM, the Department proposed to move the topic in the
existing Sec. 30.5, selection of apprentices, to Sec. 30.10. In its
place, the Department proposed a new Sec. 30.5, which provided
guidelines for assessing whether possible barriers to apprenticeship
exist for particular groups of individuals by determining whether the
race, sex, and ethnicity of apprentices in a sponsor's apprenticeship
program is reflective of the population available for apprenticeship by
race, sex, and ethnicity in the sponsor's relevant recruitment area.
This proposed Sec. 30.5 clarifies and expands upon the existing Sec.
30.4(e), ``Analysis to determine if deficiencies exist,'' which
requires the sponsor to compute availability for minorities and women
in its program. The existing Sec. 30.4(e) required that sponsors take
at least five factors into account when determining whether
deficiencies exist. It did not, however, explain how these factors
relate to the availability of qualified individuals for apprenticeship,
nor did it indicate how a sponsor should consider or weigh each of
these factors when determining availability.
In short, proposed Sec. 30.5 was intended to incorporate elements
of the existing process for analyzing race, sex, and ethnicity
utilization while clarifying and streamlining the process for
determining availability and utilization. This was to be accomplished
by decreasing the number of data sources sponsors must analyze in
determining the labor market composition, clarifying the steps required
to do the utilization analysis, and providing clear directions for
establishing goals. However, we received a number of comments that the
revisions were not clear, and placed additional burden on sponsors to
conduct analyses that they historically had not undertaken, but rather
were performed with the assistance of Registration Agencies at
compliance reviews. As described below, in response to these comments,
the Final Rule provides further clarity sought by the commenters and
reassigns the
[[Page 92056]]
burden associated with these analyses so they more closely resemble
existing practice.
Paragraph 30.5(a): Purpose
Proposed Sec. 30.5(a) explained that the purpose of a utilization
analysis was ``to provide sponsors with a method for assessing whether
possible barriers to apprenticeship exist for particular groups of
individuals by determining whether the race, sex, and ethnicity for
apprentices in a sponsor's apprenticeship program is reflective of
persons available for apprenticeship by race, sex, and ethnicity in the
relevant recruitment area.'' It further explained that where there was
significant disparity between availability and representation in the
sponsor's apprenticeship program, the sponsor was required to establish
a utilization goal.
The Department received one comment on this paragraph, which asked
the Department to define or clarify what it meant by ``significant
disparity.'' As discussed in reference to Sec. 30.6, a sponsor may use
several different methods for calculating underutilization, although
the most frequently used are the ``80 percent rule,'' and the ``two
standard deviation rule.'' A finding of underutilization pursuant to
either of these methods means that there is a significant disparity
between the sponsor's utilization of that particular group within its
apprenticeship workforce and that group's availability in the relevant
recruitment area.
Paragraph 30.5(b): Analysis of Apprenticeship Program Workforce
The NPRM laid out the first step of the utilization analysis in
proposed Sec. 30.5(b), which required sponsors to identify the racial,
sex, and ethnic composition of their apprentice workforces. Rather than
review the composition for each occupational title represented in a
sponsor's apprenticeship program, proposed Sec. 30.5(b) simplified the
analysis by only requiring the sponsor to group the occupational titles
represented in its registered apprenticeship program by industry.
Some commenters were confused about the extent of the sponsor's
workforce that would be included in the program's workforce analysis.
For example, a State Department of Labor questioned whether
journeyworkers should be included in the apprentice workforce, and a
national union urged the Department to state that entities operated by
the sponsor under another name should also be covered for purposes of
the utilization analysis. For purposes of conducting the apprentice
program workforce analysis, sponsors should include all active
apprentices. Sponsors should not include apprentices or employees who
are not enrolled in the program in question. Unlike laws governing
federal contractors, this Final Rule only regulates sponsors with
regard to the administration of its apprenticeship program; this Rule
does not require sponsors to conduct utilization analyses for its non-
apprentice workforce.
Several commenters, including an SWA and a national union,
expressed concern with assessing the racial, sex, and ethnic
composition of a program by industry, as opposed to by occupation. Some
commenters argued that grouping occupations by industry could result in
industries that consist of occupations with varying skill level
requirements, advancement opportunities, and compensation, and that
this grouping could be conducted in an arbitrary manner. Other
commenters were concerned that grouping occupations by industry would
make it more difficult to know if female or minority apprentices were
being concentrated in lower paying positions within an industry, or in
positions with little potential for advancement. One commenter also
asserted that the industry-wide requirement conflicts with the
directive in proposed Sec. 30.5(c)(3) that ``in determining
availability, the sponsor must consider at least the following factors
for each occupational title represented in the sponsor's registered
apprenticeship program.''
The Department agrees with many of these comments, and therefore
the Final Rule requires each sponsor to group its apprenticeship
programs by occupational title, rather than by industry, for purposes
of conducting the workforce analysis. This will require the sponsor to
identify each occupation within its apprenticeship program according to
the methods currently used (either by RAPIDS code or the appropriate
six-digit Standard Occupational Classification (SOC) or O*NET code
\69\) and then, for each occupation represented, the sponsor must
identify the race, sex, and ethnicity of its apprentices within that
occupation. The Department believes that this approach will provide a
more precise mechanism for assessing the demographic composition of a
sponsor's apprenticeship program, using the most discrete data set, and
will allow each sponsor to review its workforce for those issues
identified in the comments, such as channeling or the concentration of
women and minorities in certain occupations that may earn lower wages
or have fewer advancement opportunities than other similar occupations.
This method will also be more consistent with the methods many sponsors
currently employ to evaluate their workforces, thereby making it easier
for sponsors to come into compliance with this Final Rule. With regard
to the last comment, the inclusion of ``occupational title'' in the
proposed Sec. 30.5(c)(3) was an inadvertent error; it was intended to
be ``industry,'' for consistency with the remainder of the utilization
analysis. As discussed below, however, the Final Rule contains a slight
revision to the utilization and availability analyses, requiring that
they be done according to ``major occupation group'' rather than
industry, and so this provision has been changed in the Final Rule to
say ``major occupation group.''
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\69\ https://www.onetonline.org/ (last accessed June 9, 2016).
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The Final Rule also clarifies the timing for conducting the
apprenticeship program workforce analysis. As detailed below, the
Department received many comments from sponsors expressing concern with
the potential burden of conducting their own availability analysis. In
response, the Final Rule incorporates a procedure much more similar to
the existing one, wherein Registration Agencies actively assist
sponsors in conducting their availability analysis and setting their
utilization goals. Under paragraph (c), therefore, a sponsor will be
required to work with the Registration Agency at the time of its
regular compliance review to reassess the availability of women and
minority groups within its relevant recruitment area and to update its
utilization goals, if necessary. Under paragraph (b), however, each
sponsor will retain the responsibility for conducting its workforce
analysis pursuant to the steps discussed above. The Department is
adding paragraph 30.5(b)(2) to clarify that each sponsor must conduct a
workforce analysis at each regular compliance review, and again if
three years have passed without a compliance review.
The Department is also clarifying, in new paragraph 30.5(b)(3),
when each sponsor will first need to come into compliance with this
provision and conduct its initial workforce analysis pursuant to this
section. For a sponsor registered with a Registration Agency as of the
effective date of this Final Rule it will have up to two years from the
effective date in which to conduct its initial workforce analysis. As
discussed above, this does not require the sponsor to conduct an
availability analysis, or to
[[Page 92057]]
set utilization goals. Each sponsor should continue operating under its
existing goals until its next compliance review. A new sponsor
registering after the effective date of this Final Rule will have two
years from the date of its registration in which to complete its first
workforce analysis. Following the initial workforce analysis, a covered
sponsor will conduct workforce analyses at each regular compliance
review and once between compliance reviews, no later than three years
after the sponsor's most recent compliance review, as mentioned above.
Paragraph 30.5(c): Availability Analysis
The next step in the utilization analysis, under existing practice
and pursuant to proposed Sec. 30.5(c), was to determine the
availability of qualified individuals by race, sex, and ethnicity. The
purpose of the availability analysis, as explained in the NPRM, is to
establish a benchmark against which the demographic composition of the
sponsor's apprenticeship program can be compared in order to determine
whether barriers to equal opportunity may exist with regard to the
sponsor's apprenticeship program. Proposed paragraph Sec. 30.5(c)
described the steps required to perform an availability analysis,
simplifying the process by reducing the number of factors sponsors must
consider from five to two. The two factors proposed were: (i) The
percentage of individuals available with the present or potential
capacity for apprenticeship in the sponsor's relevant recruitment area
broken down by race, sex, and ethnicity; and (ii) the percentage of the
sponsor's employees with the present or potential capacity for
apprenticeship broken down by race, sex, and ethnicity. In addition,
proposed Sec. 30.5 required that a sponsor consider the availability
of qualified individuals for apprenticeship by race, sex, and
ethnicity, rather than continue the current approach, which requires
the sponsor to analyze availability and utilization for women and then
for minorities as an aggregate group.
The Department received numerous comments on the availability
analysis. The majority of comments received from sponsors expressed
confusion over how to conduct an availability analysis and concern that
conducting such an analysis would be unduly burdensome for sponsors.
Many commenters urged the Department to retain current Sec. 30.4(g),
which states that the Department shall provide data and information on
minority and female labor force characteristics for each Standard
Metropolitan Statistical Area, rather than placing the burden on
sponsors to derive this information. Two national unions said its
survey of affiliates' apprenticeship programs indicated that the
process of establishing this benchmark is not something in which most
sponsors currently engage, and that they were unaware of any data
sources that measure abilities and interests. An industry association
also sought guidance on how the construction industry specifically
should be determining availability.
As mentioned above, in response to the perception held by many
sponsors that conducting an availability analysis and setting a
utilization goal would be challenging for sponsors to do themselves,
the Department is revising Sec. 30.5(c) to comport more closely with
the current practice wherein Registration Agencies work closely with
each sponsor at its regular compliance reviews to develop and conduct
an availability analysis and to set or reassess utilization goals for
race, sex, and ethnicity, if necessary. Paragraph 30.5(c)(3) has been
revised to clarify that the responsibility for conducting availability
analyses will not fall solely to the sponsor, and that the sponsor and
the Registration Agency will work together to conduct availability
analyses. The Department is also revising paragraph 30.5(c)(5) to
remove references to specific data sources for use in availability
analyses. This was included in the NPRM in order to help sponsors
complete utilization analyses, but the Final Rule instead will follow
the existing practice of Registration Agencies taking the lead in
performing these analyses. Accordingly, paragraph 30.5(c)(5) of the
Final Rule includes a more general statement that availability ``will
be derived from the most current and discrete statistical information
available.''
The Department also notes that, although it is adopting commenters'
suggestion that the workforce analysis be conducted at the occupation
level, the Final Rule requires that availability and utilization
analyses be conducted according to major occupation group. A major
occupation group, or job family, is a grouping of occupations based
upon work performed, skills, education, training, and credentials.\70\
All Standard Occupational Classification (SOC) codes are organized into
23 major occupation groups and the first two digits of an O*Net or SOC
code correspond to the appropriate major occupation group.\71\ As
explained in the NPRM, the Department had proposed grouping occupations
by industry in order to allow sponsors with small numbers of
apprentices in each occupation to aggregate their apprentices in a way
that would provide a more meaningful statistical analysis. The
Department has determined that aggregating by major occupation group
serves the same general purpose as aggregating by industry, but is more
consistent with the format used for the occupation-level workforce
analysis. Sponsors and Registration Agencies will more easily be able
to group the program's occupations into major occupation groups than
industries.
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\70\ https://www.onetonline.org/find/family (last accessed June
13, 2016).
\71\ http://www.bls.gov/soc/major_groups.htm (last accessed June
13, 2016).
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This system that combines occupation-level workforce review with
major occupation group-level utilization analyses will allow each
sponsor to review its workforce for barriers or problems at a more
discrete level, but to then use a more aggregated data set for purposes
of assessing availability (and setting utilization goals, if
necessary). Furthermore, permitting sponsors to aggregate occupations
into major occupation groups would minimize the administrative burden
for sponsors and Registration Agencies performing the analyses,
particularly for those sponsors who have apprenticeship programs in
which more than one occupational title is represented. Accordingly,
each sponsor will organize the occupational titles represented in its
apprenticeship program by major occupation group or job family, and
will then compare the racial, sex, and ethnic representations within
each of those major occupation groups to the representations of those
groups available in the relevant recruitment area according to each
major occupation group. For the many sponsors with only one major
occupation group represented in their program, this may involve
performing a single utilization analysis for the entire program.
The Final Rule adds a paragraph 30.5(c)(6) to establish the
schedule for conducting availability analyses. As indicated above, this
new paragraph makes clear that a sponsor need only conduct an
availability analysis in conjunction with the Registration Agency at
the time of the sponsor's compliance review. A sponsor need not conduct
separate availability analyses in between compliance reviews. At a
sponsor's compliance review, the sponsor will work with the
Registration Agency to define its relevant recruitment area, and the
Registration Agency will assist the sponsor in calculating the
availability of women
[[Page 92058]]
and minorities in the relevant recruitment area.
In the NPRM, the Department referred to those individuals who were
eligible and available for apprenticeship as having ``present or
potential capacity for apprenticeship.'' This term was drawn from Sec.
30.4(e)(5) of the existing regulations. This fact notwithstanding,
several commenters were unsure of what it meant to have present or
potential capacity for apprenticeship, and how they were supposed to
identify those available individuals that have present or potential
capacity for apprenticeship within the broader labor force. An industry
association said the requirement to measure ``potential'' capacity
should be deleted because an applicant must have immediate capacity to
enter the program. Relatedly, commenters also sought clarification on
how to apply educational or skill requirements when calculating
availability. Some commenters noted that, in addition to any
educational requirements, an individual's mechanical aptitude, high
school transcript, prior work experience, and interest were all factors
that should be considered in deciding who has ``present or potential
capacity.'' A national union also asked whether JATCs may exclude
persons who fail to meet physical standards in determining potential
capacity for apprenticeship. An individual commenter asked if
``potential capacity for apprenticeship'' would refer to apprenticeship
programs requiring prior occupational training as a minimum
requirement.
Some commenters, on the other hand, were concerned that limiting
the availability analysis to those individuals who had ``present or
potential capacity'' could exclude relevant individuals from the
sponsor's availability analysis. Many commenters urged the Department
to clarify explicitly that apprenticeships are entry-level positions,
generally requiring no previous experience or minimal requirements
other than being at least 18 years of age and holding a high school
diploma or equivalent and that a particular group's availability
figures for apprenticeship programs would largely correspond its
representation within the overall civilian labor force in the relevant
recruitment area. To do otherwise, these commenters argue, could
perpetuate existing underrepresentation of women and people of color in
apprenticeship industries.
As discussed above, the Department hopes that its continued
involvement in assisting sponsors with performing the availability
analysis will help to answer these questions and allay commenters'
concerns. Additionally, in response to the comments received, the
Department is replacing the term ``individuals available with the
present or potential capacity for apprenticeship'' with ``individuals
who are eligible for enrollment in the apprenticeship program.'' This
change makes clear that the availability analysis should focus on those
individuals who meet the basic qualifications for the apprenticeship
program. However, in following with basic precepts of employment law,
sponsors may not use basic qualifications or other criteria that have
an adverse impact on one or more protected groups unless they are job-
related and consistent with business necessity. This does not mean that
every available individual would be accepted into an apprenticeship
program, only that any one of those individuals could potentially be
selected as an apprentice. A sponsor may still refine its applicant
pool, through interviews or other selection procedures, by determining
which individuals would be best suited for an apprenticeship.
In response to commenters inquiring about the source of data to use
for determining availability, we note that this may vary depending on
the nature of the apprenticeship, and so the Final Rule states only
that current and discrete data shall be used. In some cases, such as in
certain entry-level apprenticeships, the best data to determine
eligibility may be the civilian labor force participation rate.
Sponsors that apply minimum educational or certification requirements
may work with their Registration Agency to further refine the relevant
labor pool by calculating the availability of those individuals meeting
the requirements of that program.
Many commenters also sought guidance on how to define their
relevant recruitment area. One commenter was confused as to how to draw
its relevant recruitment area because it advertises on the internet and
could possibly draw applicants from anywhere. Another commenter
asserted that the labor market areas cited in the existing rule, which
are based on metro- and micro-politan statistical boundaries and
reflect workforce commuting patterns, are the most objective, unbiased,
and realistic scope for recruitment. An SWA also explained that some
sponsors are correctional facilities that recruit apprentices solely
from inmates assigned to their facility and requested clarification
that, in those cases, the ``relevant recruitment area'' for a
correctional program could be limited to the actual facility, rather
than the surrounding area.
The relevant recruitment area is defined in paragraph 30.5(c)(4) as
the geographical area from which the sponsor usually seeks or
reasonably could seek apprentices. A relevant recruitment area is
similar to a labor market area, but focuses more on where the sponsor
draws apprentices from, rather than where workers reside in surrounding
geographic areas. A relevant recruitment area recognizes that
individuals may be willing to relocate in order to participate in an
apprenticeship program. So, for instance, if the sponsor regularly
advertises and recruits in areas that would require an individual to
relocate, that would make the sponsor's relevant recruitment area
broader than their labor market area.
Each sponsor's relevant recruitment area is unique and may depend
on how that sponsor chooses to advertise its apprenticeship program and
the distance that past apprentices were willing to travel to attend the
apprenticeship program. Proposed Sec. 30.5 attempted to offer sponsors
greater flexibility in defining this area so long as the sponsor
justified the scope of its recruitment area and did not draw the
relevant recruitment area in such a way as to have the effect of
excluding individuals based on race, sex, or ethnicity from
consideration. A sponsor may determine that a metro- and micro-politan
area, such as those used under the existing regulation, is the best
representation of its relevant recruitment area. In that case, a
sponsor may continue to utilize the availability data for that metro-
and micro-politan area.
While it is possible that a sponsor could attract an applicant from
outside its standard recruitment area, the sponsor's availability
analysis need only account for those individuals available for
apprenticeship who are likely to be reached by the sponsor's
recruitment efforts and who are likely able to commute or relocate to
the program. For those sponsors advertising on the internet, the
advertisement may reach a national or international audience, but the
sponsor would need to consider whether individuals from other cities or
states are likely to commute from those locations when the sponsor is
drawing its relevant recruitment area. Similarly, a correctional
facility sponsor that only recruits from within its own inmate
population would simply need to explain in its written AAP that the
recruitment area is limited to that facility because of the focus and
requirements of the apprenticeship program. The Department will provide
technical assistance to sponsors in
[[Page 92059]]
determining the appropriate relevant recruitment area, and sponsors are
encouraged to work with their Registration Agency in unique situations.
With regards to the second factor in the availability analysis, two
commenters took issue with the use of the term ``employees'' in
proposed Sec. 30.5(c)(3)(ii). An industry association said the
requirement to analyze the numbers of current ``employees'' does not
make sense for program sponsors that do not ``employ'' any apprentices.
The commenter suggested that perhaps the proposed rule intended to
reference minorities and women ``participating'' as apprentices, which
is not as confusing as use of the term ``employees.'' Similarly, a
national union stated the term ``employee'' is inapplicable to JATCs
that do not employ apprentices or persons seeking to become
apprentices. The commenter recommended that the Department provide
guidance that is germane to joint labor-management committees in
determining the availability of qualified individuals for
apprenticeship.
The Department acknowledges that not all sponsors will recruit from
within their own workforce, and that the sponsor's current employees,
or the employees of participating employers, may not be relevant to the
sponsor's availability. In response to these comments, the Department
notes that sponsors may accord the two factors in determining
availability different weights. So, for example, a sponsor that
conducts only external recruiting, and does not accept any of its
employees into the apprenticeship program, would not give this factor
any weight. On the other hand, a sponsor that drew apprentices equally
from external sources and from within its own workforce would weigh the
two factors equally. Additionally, the Final Rule revises this factor
to reflect that any employees being considered in the availability
analysis should be those ``who are eligible for enrollment in the
apprenticeship program'' rather than who have ``the present and
potential capacity for apprenticeship,'' for the reasons discussed
above.
Paragraph 30.5(d): Rate of Utilization
Finally, proposed Sec. 30.5(d) required each sponsor to establish
a utilization goal when the sponsor's utilization of women, Hispanics
or Latinos, or individuals of a particular racial minority group is
``less than would be reasonably expected given the availability of such
individuals for apprenticeship.'' This requirement is largely carried
over from the existing regulations at Sec. 30.4(d)(3) and (4).
Some commenters, including numerous advocacy organizations, urged
the Department to clarify that the phrase ``less than would be
reasonably expected'' means that the sponsor's utilization of women,
Hispanics or Latinos, and/or individuals of a particular ethnic or
racial minority group is ``less than the percentage available for
apprenticeship in the relevant recruitment area.'' Another advocacy
organization asked the Department to clarify that ``utilization''
should be understood as a measure of the number of hours worked by
women apprentices and apprentices of color, rather than a measure of
the number of women apprentices or apprentices of color accepted into
the program. A State Department of Labor requested that the language
from the preamble clarifying the methods by which a sponsor can
calculate underutilization (e.g., ``the 80 percent rule'') be
promulgated as part of the rule.
The Department adopts Sec. 30.5(d) largely as proposed, but
clarifies that a sponsor's utilization of women, Hispanics or Latinos,
or individuals of a particular racial minority group is ``less than
would be reasonably expected'' when the utilization falls significantly
below that group's availability in the relevant recruitment area.
Sponsors are permitted to calculate their utilization using any
appropriate model, but recognizing that the ``80 percent rule,'' (i.e.,
whether actual employment of apprentices, broken down by race, sex, and
ethnicity, is less than 80 percent of their availability) or the ``two
standard deviations'' analysis, (i.e., whether the difference between
availability and the actual employment of apprentices by race, sex, and
ethnicity exceeds the two standard deviations test of statistical
significance) are most commonly employed. The Department declines to
include this in the regulatory text, but notes that either of these
methods would be considered appropriate under the Final Rule. The
Department also declines to measure utilization in terms of hours, as
the availability data used in utilization analyses is recorded in terms
of individuals, not hours worked, so it is unclear what benchmark a
sponsor could use to compare the number of hours worked by individuals
of particular racial, sex or ethnic groups. Additionally, sponsors are
required to make job assignments in a non-discriminatory manner.
The Department also reiterates that a finding of underutilization
does not by itself constitute a violation. However, as described in
Sec. 30.8, upon determining that the sponsor is underutilizing a
particular racial, sex, or ethnic group, and setting a utilization goal
for that group, the sponsor must engage in targeted outreach,
recruitment, and retention efforts to attempt to reduce or eliminate
any barriers facing the underutilized group.
Establishment of Utilization Goals for Race, Sex, and Ethnicity (Sec.
30.6)
In the NPRM, the Department proposed to move current Sec. 30.6,
entitled ``Existing lists of eligibles and public notice,'' to Sec.
30.10, and insert a new Sec. 30.6 that described the procedures for
establishing utilization goals. Proposed Sec. 30.6 would carry over,
clarify, and expand upon existing procedures set forth in Sec. 30.4(f)
of the existing part 30, which required a sponsor to establish goals
and timetables based on the outcome of the sponsor's analyses of its
underutilization of minorities in the aggregate and women. The existing
part 30 does not provide specific instructions on how to set a goal,
and the form of goal that a sponsor is required to set depends on the
nature of the selection procedure used.
Proposed Sec. 30.6 simplified the goal-setting process by
requiring only one type of goal, regardless of the selection procedure
used, and eliminated references to timetables. It also specified that a
sponsor's utilization goal for a particular underutilized group in its
apprenticeship program must be at least equal to the availability
figure derived for that group in the utilization analysis, and only
required that goals be set for the individual racial or ethnic group(s)
that the sponsor identified as being underutilized, rather than for
minorities in the aggregate. Finally, proposed Sec. 30.6 made clear
that quotas are expressly forbidden and that goals may not be used to
create set-asides or supersede eligibility requirements for
apprenticeship.
Many commenters, including JATCs, individuals, and SWAs, supported
the establishment of goals generally, but stated that goals equal to
the percentage of available apprentices in some segments of the
population is unrealistic, particularly with regards to women in
certain industries. Sponsors worried that, despite increased outreach
efforts to women, they would still struggle to meet their goals because
women were not applying for positions and suggested that sponsors not
be unduly penalized in this situation. There were some commenters,
though, that objected to the use of goals entirely, arguing that
utilization goals would
[[Page 92060]]
coerce program sponsors to implement unconstitutional hiring quotas and
cited to Lutheran Church--Missouri Synod v. FCC [hairsp]\72\ for the
proposition that the imposition of goals encourages employers to grant
preferences to applicants based on their race, ethnicity or gender.
---------------------------------------------------------------------------
\72\ 141 F.3d 344 (D.C. Cir. 1998).
---------------------------------------------------------------------------
Advocacy groups and individuals, however, wanted to ensure that
sponsors made real progress in increasing the representation of women
and minorities in their apprenticeship programs. An individual
commenter suggested that the Department require apprenticeship programs
with low numbers of female apprentices to report their utilization rate
to the Registration Agency and that such programs be audited annually
until their numbers rise. Others suggested that sponsors should
implement interim goals to ensure steady progress towards accomplishing
the Sec. 30.6 utilization goal. Several commenters urged the
Department to make clear that compliance with the AAP requirements will
be determined by whether the sponsor has made a good faith effort to
meet its goals and timetables. These commenters further stressed that
good faith efforts should be judged by whether the sponsor is following
its AAP and attempting to make it work, including evaluation and
changes in the program when necessary to increase utilization of
minorities.
The Department largely adopts proposed Sec. 30.6 in the Final
Rule, but amends paragraph (a) to make clear that a utilization goal is
set for each major occupation group where underutilization is found and
that a sponsor will set its utilization goals with the Registration
Agency at the time of its regular compliance reviews. These goals will
still reflect the availability percentage of the particular racial,
sex, or ethnic group in the relevant recruitment area, as described in
the NPRM. Again, the Registration Agency will assist the sponsor in
conducting the availability analysis during the sponsor's compliance
review and the goals established under this section will reflect the
availability percentages as determined in that analysis. While some
sponsors may fall short of these goals, the Department reminds sponsors
that their determination that a utilization goal is required
constitutes neither a finding nor an admission of discrimination, and
that a sponsor's compliance will be determined based upon its good
faith efforts to eliminate impediments to equal employment opportunity
and not purely on whether the sponsor has met its goals.
In response to concerns that these aspirational goals nevertheless
have the effect of rigid quotas, the Final Rule, as did the NPRM, goes
to great lengths to explicitly state that these goals are not and
should not be interpreted to serve as quotas, and that they do not
permit sponsors to create set-asides for specific groups. In response
to the comment regarding Lutheran Church--Missouri Synod v. FCC, the
Department notes that this Final Rule makes merit selection principles
the basis for all employment decisions. This regulation requires both
that employment decisions be made in a nondiscriminatory manner and
that utilization goals may not be used to supersede merit selection or
justify a preference being extended to any person on the basis of race,
sex, or ethnicity. The clear distinction between this framework and a
rigid quota system is further evidenced by the fact that sponsors will
not be held liable for any violation of this part simply for failing to
meet a utilization goal. By contrast, sponsors explicitly can be held
liable for any personnel decisions made on the basis of a protected
category, which would include preferential treatment in order to meet a
goal.
The Department also declines to set any specific goals for women
and minorities that sponsors must reach, and further declines to
require sponsors to reach tiered or interim goals. If the Registration
Agency determines that a sponsor is not meeting its goals, the
Registration Agency will work with that sponsor to identify potential
problem areas in the program and devise corrective, action-oriented
programs pursuant to Sec. 30.8.
Commenters also sought clarification on some aspects of proposed
Sec. 30.6. For example, a State agency requested clarification
regarding what it meant to have ``just one type of goal'' for an
apprenticeship program. To clarify, the new requirement that a sponsor
only set ``one type of goal'' means that the sponsor will set the same
type of utilization goal for each racial, sex, and ethnic group within
its apprenticeship workforce, regardless of the way in which the
sponsor selects its apprentices. This is in contrast to the existing
requirement to set a different goal depending on which selection method
the sponsor uses. For selections based on rank from a pool of eligible
applicants, for instance, sponsors are currently required to establish
a percentage goal and timetable for the admission of minority and/or
female applicants into the eligibility pool. However, if selections are
made from a pool of current employees, sponsors are required to
establish goals and timetables for actual selection into the
apprenticeship program. The Final Rule will simplify this process, such
that the sponsor's goals will simply reflect the utilization of that
race, sex, or ethnic group in the sponsor's overall workforce.
Finally, the Final Rule slightly revises paragraph (d)(3), which
reaffirms that goals do not create ``set asides'' nor are intended to
achieve equal results, to more closely conform with similar language in
OFCCP's 41 CFR part 60-2 regulations.
Utilization Goals for Individuals With Disabilities (Sec. 30.7)
The existing Sec. 30.7 is reserved. In the NPRM, the Department
proposed to assign a new section entitled ``Utilization goals for
individuals with disabilities'' to Sec. 30.7, which would establish a
single, national utilization goal of 7 percent for individuals with
disabilities that applies to all sponsors subject to the AAP
obligations of this part. As with utilization goals for race, sex, and
ethnicity, the utilization goals for individuals with disabilities is
designed to establish a benchmark against which the sponsor must
measure the representation of individuals with disabilities in the
sponsor's apprentice workforce by major occupation group, in order to
assess whether any barriers to EEO remain. However, in contrast to the
framework set forth for establishing utilization goals for race, sex,
and ethnicity, the proposed Sec. 30.7 established one goal for every
covered sponsor, regardless of the availability data in that sponsor's
particular relevant recruitment area.
Paragraph 30.7(a): Utilization Goal
Proposed Sec. 30.7(a) put forth the national utilization goal of 7
percent for individuals with disabilities, derived in part from
disability data collected as part of the American Community Survey.
This goal mirrors that established by OFCCP in the affirmative action
obligations of its section 503 regulations, which now apply to hundreds
of thousands of Federal contractor and subcontractor and Federally-
assisted contractor and subcontractor establishments. Advocacy
organizations generally supported the establishment of this utilization
goal and stated that the goal, if met, could result in an additional
26,000 job training opportunities for persons with disabilities. Some
commenters sought higher goals or inquiry into other data sources to
establish this goal. One advocacy organization suggested that
[[Page 92061]]
the utilization rate should be 16.5 percent, which is equal to the
current percentage of individuals with disabilities within the working-
age population, or that sponsors should base their goal for individuals
with disabilities on demographic statistics of persons with
disabilities in their geographic location. Other advocacy organizations
suggested that the Social Security Administration, the Department of
Education, academic Rehabilitation Research and Training Centers,
associations for State workforces, vocational rehabilitation agencies,
special education transition programs, disability advocacy
organizations, Independent Living Centers, Career One-stop centers, and
IDEA-funded parent centers could all be sources of information on the
availability of individuals with disabilities in the relevant area.
Still other advocacy organizations recommended the Department raise the
utilization goal by adopting a methodology that utilizes the ADA's
broader definition of ``disability,'' rather than the American
Community Survey, which the commenter said uses a more narrow
definition of ``disability'' than the ADA. To ensure that people who
have severe disabilities are not neglected, an advocacy organization
recommended that the Department establish an additional sub-goal of 3
percent for individuals with targeted severe disabilities.
A number of JATCs and industry associations, on the other hand,
worried that the 7 percent goal was unrealistically high because of the
physical demands of their apprenticeship programs and because self-
identification is voluntary and persons with disabilities are reluctant
to identify as disabled. For example, an industry association stated
that this utilization goal would be particularly burdensome for the
trucking industry because many individuals with disabilities are
prohibited from driving commercial motor vehicles, and a local JATC
stated that it would be difficult to place disabled individuals with
its partner construction contractors because of their workers
compensation insurance providers and the fact that a condition of their
disability compensation may preclude them from working on a
construction site. Some of these commenters recommended that the goal
be phased in, or gradually increased over time. One company recommended
that the Department observe each industry for two years and establish
better-suited goals. Another commenter expressed concern with the
proposed 7 percent utilization goal, stating that persons with
disabilities are already protected from discrimination by existing
Federal regulations and expressed doubt that utilization goals are
attainable given geographic disparities as well as differing abilities
and qualifications of those seeking employment. An industry association
suggested the Department adopt the same goals as established by the
OFCCP under section 503, which applies to Federal contractors and
subcontractors. A national JATC commented that the Department should
review the goal on an annual basis.
As stated in the NPRM, the Department believes that a utilization
goal for individuals with disabilities is a vital element that, in
conjunction with other requirements of this part, will enable sponsors
and Registration Agencies to assess the effectiveness of specific
affirmative action efforts with respect to individuals with
disabilities, and to identify and address specific workplace barriers
to apprenticeship. Both the unemployment rate and the percentage of
working-age individuals with disabilities who are not in the labor
force remain significantly higher than that of the working-age
population without disabilities. The establishment of a utilization
goal for individuals with disabilities is not, by itself, a ``cure''
for this longstanding problem, but the Department believes that the
establishment of this utilization goal could create more accountability
within a sponsor's organization and provide a much-needed tool to help
ensure that progress toward equal employment opportunity is achieved.
The Department explained in great detail in the NPRM the process
that OFCCP used when it issued revised regulations implementing section
503 and established the same national utilization goal of 7 percent for
individuals with disabilities for all covered contractors. OFCCP
derived this utilization goal in part from the disability data
collected as part of the American Community Survey (ACS). Although the
definition of disability used by the ACS is not as broad as that in the
ADA and proposed here, and therefore may not capture all of the
individuals who would be considered disabled under this Final Rule, the
Department has concluded, for reasons discussed extensively in the
NPRM, that the ACS is the best source of nationwide disability data
available today, and, thus, an appropriate starting place for
developing a utilization goal. The Department, therefore, declines to
change the goal, or to implement tiered goals that would not be
reflective of the availability of individuals with disabilities.
OFCCP arrived at the 7 percent figure by starting with the mean
disability data for the ``civilian labor force'' and the ``civilian
population'' across EEO-1 groups, based on the 2009 ACS data, which
resulted in 5.7 percent as a starting point. This figure is the
Department's estimate of the percentage of the civilian labor force
that has a disability as defined by the ACS. However, the Department
acknowledges that this number does not encompass all individuals with
disabilities as defined under the broader definition in the ADA, as
amended, and this part. Further, this figure most likely underestimates
the percent of individuals with disabilities who are eligible for
apprenticeship because it reflects the percentage of individuals with
disabilities who are currently in the labor force with an occupation
and individuals need not have an occupation or be in the labor force in
order to be eligible for apprenticeship.
The Department was also concerned that this availability figure did
not take into account discouraged workers, or the effects of historical
discrimination against individuals with disabilities that has
suppressed the representation of such individuals in the workforce.
OFCCP estimated the size of the discouraged worker effect by comparing
the percent of the civilian population with a disability (per the ACS
definition) who identified as having an occupation to the percent of
the civilian labor force with a disability who identified as having an
occupation. Though not currently seeking employment, it might be
reasonable to believe that those in the civilian population who
identify as having an occupation, but who are not currently in the
labor force, remained interested in working should job opportunities
become available. Using the 2009 ACS EEO-1 category data, the result of
this comparison is 1.7 percent. Adding this figure to the 5.7 percent
availability figure above results in the 7.4 percent, which OFCCP
rounded to 7 percent. OA agrees that this calculation reflects the most
accurate availability figure currently available, and therefore adopts
the 7 percent utilization goal. Pursuant to proposed 30.7(c), which the
Department adopts in this Final Rule, OA will review the goal
periodically and update the goal as appropriate.
The Department revises paragraph (a), however, to reflect that the
utilization goal will apply to each major occupation group within a
sponsor's apprentice workforce, rather than to each industry, as was
proposed in the
[[Page 92062]]
NPRM. This is consistent with the changes adopted for the utilization
analyses for race, sex, and ethnicity. The reasons for using major
occupation groups, rather than industry, in the utilization analysis
are addressed in the discussion of Sec. 30.5(c).
In response to those commenters who advocated that sponsors should
be able to derive their own availability figures for individuals with
disabilities within the sponsor's relevant recruitment area, the
Department notes that replicating the race, sex, and ethnicity goals
framework would not be the most effective approach for the
establishment of goals for individuals with disabilities. Sponsors
establishing goals for minorities and women typically use the Special
EEO Tabulation of census data to assist them. The results of the
decennial census can be tabulated for hundreds of occupation categories
and thousands of geographic areas. However, because the ACS disability
data is based on sampling, and because the percentage of that sample
who identify as having a disability is considerably smaller than the
percentage that provide race and gender information, it cannot be
broken down into as many job titles, or as many geographic areas as the
data for race and gender. In addition, the race, sex, and ethnicity
goals framework does not include consideration of discouraged workers
in computing availability, a factor particularly important in the
context of disability. Accordingly, the Department is retaining the 7
percent national utilization goal and declines to allow sponsors to set
their own goals based on availability in the relevant recruitment area.
The Department also declines to adopt a sub-goal at this time. The
commenters suggesting a sub-goal did not provide a clear methodology or
data source for the identification of a sub-goal target. Moreover,
establishing a sub-goal would, in many instances require sponsors to
ask for detailed disability-related information, beyond the mere
existence of a specific condition, so that the sponsor could determine
whether an individual has a ``severe'' physical or mental impairment
that is encompassed by the sub-goal. This does not mean that sponsors
may not, on their own, for affirmative action purposes, establish
appropriate mechanisms and goals to encourage the employment of
individuals with significant or severe disabilities. However, these
regulations do not include such requirements.
As stated above, many sponsors were concerned that they would not
be able to meet the 7 percent utilization goal because of the physical
demands of their industry. First, the Department notes that the goal
only applies to ``qualified individuals with disabilities,'' and the
application of a utilization goal does not require or authorize a
sponsor to hire an individual who is not eligible or qualified for
apprenticeship. The objection to adopting a utilization goal at all,
however, is based on the flawed notion that individuals with
disabilities as a group are incapable of working in these jobs. As
stated previously in this preamble, the Department acknowledges that
some individuals with certain disabilities may not be able to perform
some jobs, but this Final Rule does not require a sponsor to hire an
individual who cannot perform the essential functions necessary for
apprenticeship, or who poses a direct threat to the health or safety of
the individual or others.
Additionally, the goal is not a quota and failure to meet the goal
will not, in and of itself, result in any violation or enforcement
action. The Registration Agency will look at the totality of the
sponsor's affirmative action efforts to determine whether it is in
compliance with its affirmative action obligations under this section.
As discussed below, if the sponsor has complied with the requirements
of this part and no impediments to equal employment opportunity exist,
then the fact that the sponsor does not meet the goal will not result
in a violation.
Lastly, some sponsors were concerned that the new utilization goal
would be unduly burdensome for sponsors to comply with. A regional JATC
commented that forcing sponsors to identify individuals with
disabilities, especially mental or intellectual disabilities, puts a
burden on sponsors if the program must hire a psychiatric professional
to conduct evaluations.
First, the Department notes that all sponsors covered by Sec.
30.4(b) are currently required to maintain an AAP and conduct a
utilization analysis for race, sex, and ethnicity, so the additional
utilization analysis for individuals with disabilities will pose
minimal burden, especially because the sponsor is not responsible for
setting the utilization goal. Second, the identification of individuals
within the apprenticeship workforce that have a disability is done
through self-identification, and the sponsor should not be attempting
to identify individuals with disabilities who do not self-identify. If
an apprentice has an obvious visible disability (i.e., someone is blind
or missing a limb), a sponsor may include that individual as an
individual with a disability within its workforce analysis. Otherwise,
a sponsor should be relying only on self-identification as the method
for capturing disability within its apprenticeship workforce. A sponsor
should also not be attempting to verify whether an apprentice does, in
fact, have a disability. Further detail on how the self-identification
mechanism should work is set forth in the discussion of Sec. 30.11,
below.
To further ease any burden upon sponsors associated with the
implementation of the utilization goal for individuals with
disabilities, sponsors will have additional time to come into
compliance with these provisions. The revised compliance dates are
detailed in paragraph 30.7(d)(2), below.
Paragraph 30.7(b): Purpose
Proposed Sec. 30.7(b) explained that the purpose of the
utilization goal for individuals with disabilities was to establish a
benchmark against which the sponsor must measure the representation of
individuals with disabilities in the sponsor's apprentice workforce and
that the goal was to serve as an equal opportunity objective that
should be attainable by complying with all of the affirmative action
requirements of part 30.
The Department received no comments on this specific paragraph. The
Final Rule changes the reference from ``industry'' to ``major
occupation group'' to be consistent with changes in other sections, and
makes other non-substantive edits so the text of the regulation
conforms more closely to the corresponding section of OFCCP's section
503 regulations.
Paragraph 30.7(c): Periodic Review of Goal
Proposed Sec. 30.7(c) stated that the Administrator of OA would
periodically review and update the national utilization goal, as
appropriate. The Department received one comment on this paragraph from
a national JATC that expressed support for a fixed utilization goal but
cautioned that because of the untested nature of the proposed 7 percent
goal the Department should review the goal on an annual basis.
The Department declines to adopt a set review period for the goal.
This flexibility will enable the Administrator to review the goal
whenever it is deemed necessary. Accordingly, the Department adopts
paragraph (c) without change.
Paragraph 30.7(d): Utilization Analysis
Proposed Sec. 30.7(d) set out the steps that the sponsor must use
to determine
[[Page 92063]]
whether it has met the utilization goal. Similar to the utilization
analysis required under Sec. 30.5 for race, sex, and ethnicity,
proposed Sec. 30.7(d) stated that the sponsor must first conduct a
review of its apprenticeship workforce to evaluate the representation
of individuals with disabilities in the sponsor's apprentice workforce
grouped by industry. The sponsor identifies the number of apprentices
with disabilities based on voluntary self-identification by the
individual apprentices. This figure would then be compared to the 7
percent utilization goal to determine if the sponsor is underutilizing
individuals with disabilities. Proposed Sec. 30.7(d)(3) required that
the sponsor evaluate its utilization of individuals with disabilities
in each industry group annually (or every two years, if it meets the
conditions set forth in the proposed Sec. 30.4(e)).
An advocacy organization supported the proposed disability
workforce analysis requirements in Sec. 30.7(d)(2) because it would
ensure that individuals with disabilities will be represented in all
industries. A number of commenters, however, opposed the utilization
analysis because it would require identifying those individuals within
the sponsor's program that had a disability. Many commenters worried
about asking applicants and apprentices to self-identify as having a
disability and were concerned that a lack of self-identification would
make it difficult for sponsors to meet the utilization goal. An
industry association argued that although the D.C. Circuit upheld the
OFCCP's adoption of a utilization goal for individuals with
disabilities in the case of Associated Builders and Contractors, Inc.
v. Shiu,\73\ the holding in that case did not justify extension of the
identical data collection and utilization analysis in the
apprenticeship context. Finally, a State Department of Labor sought
clarification as to when, under proposed Sec. 30.7(d)(3), sponsors
would be required to evaluate their utilization of individuals with
disabilities and how that timing related to the timing for review of
AAPs established in proposed Sec. 30.4(e).
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\73\ 773 F.3d 257 (D.C. Cir. 2014).
---------------------------------------------------------------------------
Comments expressing specific concerns about asking individuals to
self-identify are addressed later in the preamble under Sec. 30.11. In
response to those commenters who expressed concerns with meeting the
goal as a result of under-reporting by apprentices with disabilities,
the Department concedes the possibility that self-reported data
regarding disability, as with any demographic data employers maintain,
will not be entirely accurate. While not perfect, the data that will
result from the invitation to self-identify will nevertheless provide
the sponsor and the Department with important information that does not
currently exist pertaining to the participation of individuals with
disabilities in the sponsor's applicant pools and labor force. This
will allow the sponsor and the Department to better identify and
monitor the sponsor's hiring and selection practices with respect to
individuals with disabilities, and to more effectively ensure that the
benefits of apprenticeship are accessible to individuals with
disabilities. The Department again reminds sponsors that failure to
meet the utilization goal for individuals with disabilities is not
itself a violation of this Final Rule, and so sponsors will not be
penalized if they fail to meet the goal because some apprentices with
disabilities choose not to self-identify.
As was the case for OFCCP in Associated Builders and Contractors,
Inc. v. Shiu, the Department is concerned that individuals with
disabilities have lower participation rates in the workforce and higher
unemployment rates than those without disabilities. We therefore seek
to advance the employment of qualified individuals with disabilities
through this Final Rule. To do so is well within the Department's
authority to ``formulate and promote the furtherance of labor standards
necessary to safeguard the welfare of apprentices . . .'' \74\ In ABC
v. Shiu, the court upheld the 7 percent national utilization goal
established by OFCCP and stated that ``the agency adequately explained
why the best available data did not allow it to create a tailored goal
and why the uniform goal advances its regulatory objective.'' \75\ The
Department sees no reason to depart from that analysis here.
---------------------------------------------------------------------------
\74\ 29 U.S.C. 50.
\75\ 773 F.3d at 265 (D.C. Cir. 2014).
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As we did for the workforce analysis for race, sex, and ethnicity
(discussed in Sec. 30.5(b)), the Department is requiring that each
sponsor conduct its apprentice workforce analysis for individuals with
disabilities at the occupation level and its utilization analysis for
individuals with disabilities at the major occupation level. This,
again, will allow sponsors to be able to review their workforce at a
more granular level, but will only require that utilization goals apply
at the major occupation group level.
With regard to the timing of the workforce analysis that sponsors
must conduct under this section, this should be conducted at the same
time that a sponsor performs its workforce analysis for race, sex, and
ethnicity, pursuant to Sec. 30.5(b). As explained in revised paragraph
30.7(d)(2)(ii), this process should be performed at each regular
compliance review and no later than three years after a sponsor's most
recent compliance review. Paragraph 30.7(d)(2) is revised to reflect
this new schedule. Again, this schedule will apply uniformly across
covered sponsors and will not depend on whether a sponsor has met its
utilization goals.
Furthermore, as mentioned above, the Department is allowing both
existing and new sponsors additional time in which to implement the
apprenticeship workforce analysis requirements for individuals with
disabilities. Similar to the compliance dates established in Sec.
30.5, an existing sponsor will have two years from the effective date
of this Final Rule in which to incorporate the 7 percent utilization
goal into its AAP and to conduct a workforce analysis under this
section. Paragraph 30.7(d)(2)(iii)(A) is revised to reflect this
change.
Also, as with the workforce analysis for race, sex, and ethnicity,
detailed in Sec. 30.5(b), a sponsor registered with a Registration
Agency as of the effective date of this Final Rule will have up to two
years from the effective date in which to conduct a conforming
workforce analysis for individuals with disabilities, pursuant to Sec.
30.7(d)(2). This section of the Final Rule also establishes that new
sponsors registering after the effective date of this Final Rule will
have two years from the date of their registration to complete their
written AAP.
Generally, the workforce analyses required by Sec. Sec. 30.5(b)
and 30.7(d)(2) should be performed simultaneously. Following the
initial workforce analysis, all covered sponsors will be required to
conduct workforce analyses at each regular compliance review and again
if they have gone three years since their last compliance review. The
schedule of evaluations is discussed in more detail in paragraph
(d)(3), below.
Paragraph 30.7(e): Identification of Problem Areas
When the percentage of apprentices with disabilities in one or more
industry groups was less than the utilization goal proposed in Sec.
30.7(a), proposed Sec. 30.7(e) required that the sponsor take steps to
determine whether and where impediments to equal opportunity exist.
Proposed Sec. 30.7(e) explained that when making this determination,
the sponsor must look at the results of its assessment of personnel
processes and the
[[Page 92064]]
effectiveness of its outreach and recruitment efforts as required by
proposed Sec. 30.9.
The Department received a few comments in regards to paragraph (e).
An advocacy organization commented that this type of self-education is
important to raising sponsors' attention to the pool of individuals
with disabilities that could contribute to and benefit from their
apprenticeship program. An industry association suggested that the
Department revisit the requirements of Sec. 30.7(e) as the proposed
rule implied that failure to reach the utilization goal for individuals
with disabilities meant that there must automatically be a barrier to
equal employment. The commenter also requested examples of
``impediments to equal opportunity'' and sought guidance on how
sponsors would be able to identify and measure such impediments. A
national JATC was concerned that such a review process would require
the assistance of a professional. Another national JATC expressed
concern that the regulations did not account for the fact that non-
attainment of the disability utilization goal does not mean that a
program is discriminatory in its practices; rather, non-attainment
could be that disabled individuals did not apply to the program, that
they could not meet the requirements of the program, or they were
unwilling to self-disclose disabilities.
With the exception of two changes discussed below, the Final Rule
adopts Sec. 30.7(e) as it appeared in the NPRM. The Department
emphasizes that, if a sponsor is underutilizing individuals with
disabilities, it does not mean that a problem area definitely exists or
that the cause of the underutilization is discrimination. This finding
simply serves as a notification to the sponsor that they must review
their personnel processes and outreach to determine if such problem
areas do exist. A sponsor is only required to engage in action-oriented
programs, pursuant to Sec. Sec. 30.7(f) and 30.8, if it discovers
problem areas during the course of this review. To reflect this
understanding, the regulatory text is changed slightly to read ``the
sponsor must take steps to determine whether and/or where impediments
to equal employment opportunity exist'' (emphasis added). As for types
of ``impediments to equal opportunity,'' these would be the same as the
``barriers'' described in Sec. 30.4(a)(2) of this Section-by-Section
Analysis. The Department also revises this paragraph in the Final Rule
to indicate that utilization analyses will be conducted according to
major occupation group, rather than industry, consistent with changes
in other paragraphs.
Paragraph 30.7(f): Action-Oriented Programs
In proposed Sec. 30.7(f), the NPRM stated that if, in reviewing
its personnel processes, the sponsor identifies any barriers to equal
opportunity, it would be required to undertake action-oriented programs
designed to correct any problem areas that the sponsor identified. Only
if a problem or barrier to equal opportunity is identified must the
sponsor develop and execute an action-oriented program.
The Department received no comments on this paragraph that have not
already been addressed elsewhere, and so adopts proposed Sec. 30.7(f)
without change.
Paragraph 30.7(g)
Proposed Sec. 30.7(g) clarified that the sponsor's determination
that it has not attained the utilization goal in one or more industry
groups would not constitute either a finding or admission of
discrimination in violation of part 30. The Department noted, however,
that such a determination, whether by the sponsor or by the
Registration Agency, would not impede the Registration Agency from
finding that one or more unlawful discriminatory practices caused the
sponsor's failure to meet the utilization goal and that, in that
circumstance, the Registration Agency would take appropriate
enforcement measures.
The Department received no comments on this paragraph. Accordingly,
the Department is only revising this paragraph consistent with other
changes throughout this section to clarify that the utilization
analysis will be performed according to major occupation group.
Paragraph 30.7(h)
Finally, proposed Sec. 30.7(h) stated that the 7 percent
utilization goal must not be used as a quota or ceiling that limits or
restricts the employment of individuals with disabilities as
apprentices. One commenter argued that the proposed 7 percent
utilization goal was essentially a national hiring quota for
individuals with disabilities. An industry association expressed
concern that even though the Department stated that the proposed 7
percent utilization rate for persons with disabilities was a ``goal,''
program sponsors may feel pressure to meet the goal and hire
individuals who may not be as qualified as other applicants. A local
JATC argued that the proposed disability utilization goal would invite
claims of reverse discrimination and lawsuits by able-bodied persons
who were not admitted to the program because of the inclusion of an
applicant with a disability.
The Department declines to make any changes to paragraph (h), as
these comments are premised on a flawed understanding of the function
of the disability goal. The Department has made clear, both in this
paragraph and throughout the preamble, that the goal is not a quota and
failure to meet the goal will not, in and of itself, result in any
violation or enforcement action. Rather, a failure to meet the goal
simply triggers a review by the sponsor of its employment practices to
determine if impediments to EEO exist. The goal is intended to serve as
a management tool to help sponsors measure their progress toward
achieving equal employment opportunity for individuals with
disabilities and does not require disability-based decision making. The
Department recognizes that a failure to meet the 7 percent utilization
goal does not necessarily mean that the sponsor is discriminating
against individuals with disabilities and that there may be other
explanations. It is for this reason that proposed Sec. 30.7(g) stated
that a sponsor's determination that it has not attained the utilization
goal in one or more job groups does not constitute either a finding or
admission of discrimination in violation of this part. Finally, with
regard to the comment fearing reverse discrimination actions, we note
that the ADA, as amended, prohibits claims of discrimination because of
an individual's lack of disability, and we interpret this Final Rule
consistent with that.\76\
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\76\ 42 U.S.C. 12201(g).
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Targeted Outreach, Recruitment, and Retention (Sec. 30.8)
The Department proposed to revise the existing Sec. 30.8 entitled
``Records'' and to move that language to proposed Sec. 30.12, as
discussed later in the preamble. Proposed Sec. 30.8 instead replaced
the current requirements related to outreach and positive recruitment
discussed in Sec. 30.4(c) of the existing regulation by addressing the
regulatory requirements related to targeted outreach, recruitment, and
retention. Under proposed Sec. 30.8, when a sponsor is underutilizing
a specific group or groups pursuant to proposed Sec. 30.6, and/or when
a sponsor determines, pursuant to proposed Sec. 30.7(f), that there
were impediments to equal opportunity for individuals with
[[Page 92065]]
disabilities,\77\ the sponsor was required to undertake targeted
outreach, recruitment, and retention activities likely to generate an
increase in applications for apprenticeship and improve retention of
apprentices from the targeted group or groups and/or from individuals
with disabilities as appropriate. These targeted activities would be in
addition to the sponsor's universal outreach and recruitment activities
required under Sec. 30.3(b)(3).
---------------------------------------------------------------------------
\77\ As set forth in more detail in the discussion of Sec.
30.7, the different ``triggers'' for engaging in action-oriented
programs for race/sex versus disability are necessary because of the
differences in labor market demographic data maintained for each.
Because disability data is not available at the granular level that
race/sex data is, and because there is not a data source for
individuals with disabilities that matches exactly with the
definition of disability found in the ADA, this Final Rule, like the
Section 503 Final Rule, includes an additional step wherein sponsors
must identify whether impediments to equal employment opportunity
exist before the sponsor is required to engage in good faith efforts
to correct the problem.
---------------------------------------------------------------------------
Paragraph 30.8(a): Minimum Activities Required
Proposed paragraph Sec. 30.8(a)(1) set forth the minimum, specific
targeted outreach, recruitment, and retention activities that the
Department proposed to require of a sponsor that had found
underutilization of a particular group or groups pursuant to Sec. 30.6
and/or who had determined pursuant to Sec. 30.7(f) that there were
problem areas with respect to its outreach, recruitment, and retention
activities impacting individuals with disabilities. These activities
included, but were not limited to: (1) Dissemination of information to
community-based organizations, local high schools, local community
colleges, local vocational, career and technical schools, career
centers at minority serving institutions (including Historically Black
Colleges and Universities, Hispanic-Serving Institutions, and Tribal
Colleges and Universities), and other groups serving the underutilized
group; (2) advertising openings for apprenticeship opportunities by
publishing advertisements in newspapers and other media, electronic or
otherwise, that have wide-spread circulation in the relevant
recruitment area; (3) cooperating with local school boards and
vocational education systems to develop and/or establish relationships
with pre-apprenticeship programs inclusive of students from the
underutilized groups, preparing them to meet the standards and criteria
required to qualify for entry into apprenticeship programs; and (4)
establishing linkage agreements enlisting the assistance and support of
pre-apprenticeship programs, community-based organizations and advocacy
organizations in recruiting qualified individuals for apprenticeship
and in developing pre-apprenticeship programs. In the NPRM, the
Department requested comments on whether there were circumstances under
which sponsors would have difficulty completing any of these
activities.
In addition, to foster awareness of the usefulness of a sponsor's
outreach, recruitment, and retention activities, proposed Sec.
30.8(a)(2) also required the sponsor to evaluate and document the
overall effectiveness of its outreach, recruitment, and retention
activities after every selection cycle for registering apprentices.
This review was designed to allow the sponsor to refine these
activities as needed, as set forth in proposed Sec. 30.8(a)(3).
Finally, proposed Sec. 30.8(a)(4) required the sponsor to maintain
records of its outreach, recruitment, and retention activities and any
evaluation of these activities.
Several commenters supported the outreach, recruitment, and
retention requirements in Sec. 30.8. Multiple advocacy organizations
stated that these minimum steps are among the most effective
approaches, are more effective and efficient than general outreach, and
should be reasonable for every program to undertake. Many advocacy
organizations expressed support for the inclusion of linkage agreements
between sponsors and groups representing underutilized populations
given their proven success in increasing participation of underutilized
populations. In response to the Department's request for information on
how the proposed rule's targeted outreach requirements to organizations
that serve individuals with disabilities would impact sponsors, an
advocacy organization for persons with disabilities stated that it
would welcome the opportunity to form relationships with apprenticeship
sponsors.
Several commenters, on the other hand, asserted that the
requirements in proposed Sec. 30.8 would be too burdensome for
apprenticeship programs. Unions and JATCs stated that the proposed
requirements would be a drain on their resources and time. A national
JATC said that while disseminating information on job opportunities was
not a significant burden, as apprenticeship programs already do so,
partnering with other groups would add a lot of time and work to the
program. The commenter recommended that the current outreach,
recruitment, and retention requirements under 29 CFR part 30 remain the
same because the requirements to formally document its recruitment
efforts after every apprenticeship cycle, which are continuously
occurring, would create even more burdens on their program. A number of
JATCs and industry associations expressed concern about the proposed
outreach, recruitment, and retention requirements and suggested that
the Sec. 30.8(a) activities should be suggestions, rather than
requirements, and that sponsors should be given more flexibility in
deciding what activities are most effective. An SWA also supported
giving sponsors greater flexibility to encourage creative and diverse
mechanisms to diversify their workforce.
The Department retains the four specific activities outlined in
proposed Sec. 30.8(a)(1) in the Final Rule, as several comments
reinforced the Department's belief that these were effective mechanisms
for outreach, recruitment, and retention, and that sponsors who
discover they are underutilized should be required to use them to
attempt to correct their underutilization. The Department believes that
these minimum requirements provide sponsors with enough guidance to be
effective in improving their outreach methods, but still leaves
sponsors with flexibility to decide on other, additional recruitment
mechanisms. The Department further believes that the four minimum
activities outlined in Sec. 30.8(a)(1) will not be overly burdensome
for sponsors. As one sponsor pointed out, the requirements are largely
representative of the kinds of good faith efforts the Department has
required to date for a sponsor to meet its EEO obligations required in
Sec. Sec. 30.3 and 30.4 of the current part 30.
Many commenters stressed that retention was a major issue for women
because they are often targets for isolation, harassment,
discrimination, stereotyping, and a lack of training rotation on the
job. An advocacy organization expressed concern with minority
apprenticeship completion rates, stating that, in 2013, 30.3 percent of
African Americans completed their program in the construction industry
in comparison to 46.7 percent of whites. Some commenters suggested that
the Department create a separate section in the rule to address
apprentice retention specifically, which should include requirements
that apprenticeship program sponsors: (1) Analyze their apprentice
retention rates for women, people of color, and individuals with
disabilities; (2) set forth in their written AAPs the specific
retention activities they plan to take for the upcoming program year,
as appropriate; (3) conduct exit interviews of each apprentice leaving
the sponsor's
[[Page 92066]]
apprenticeship program prior to completion; and (4) implement policy
and professional development practices designed to build staff capacity
to support and serve traditionally underrepresented groups. Individual
commenters recommended using members of the workforce that represent
the marginalized populations to perform outreach to the particular
underrepresented group and recommended that the Department encourage
mentoring as a means for increasing retention.
The Department recognizes the importance of retention activities in
building greater diversity within apprenticeship programs, but declines
to include these specific suggestions as mandatory. Many of the
retention activities suggested by commenters were, in fact, already
included in proposed Sec. 30.8(b). Furthermore, the Department
anticipates that sponsors will evaluate their program's completion
rates as part of their review of personnel processes under Sec. 30.9.
An advocacy organization also recommended that language be added to
Sec. 30.8 to require apprenticeship programs to work with their local
workforce development system as a fifth required outreach, recruitment,
and retention activity because the workforce development system serves
individuals that are largely members of populations currently
underrepresented in the registered apprenticeship system. Similarly,
two State vocational rehabilitation (VR) agencies recommended that the
Department revise Sec. 30.8(a) to specifically refer to State VR
agencies.
The Department notes that, pursuant to Sec. 30.3(b)(3)(i), all
sponsors are already required to maintain a list of current recruitment
sources that will generate referrals from all demographic groups within
the relevant area, and that these sources could include One-Stop
Centers. However, recognizing that the public workforce system can play
a key role in linking sponsors to a diverse pool of apprenticeship
candidates, Sec. 30.8(a)(1)(i) of the Final Rule includes reference to
workforce system partners, including One-Stop Career Centers, as
examples of entities to which sponsors must disseminate information
regarding its apprenticeship program.
Two advocacy organizations suggested that the Department add the
language ``including those who serve underrepresented populations'' to
each of the four requirements detailed in proposed Sec. 30.8(a)(1)
through (4). The commenters stated that this language would not create
an additional burden to apprenticeship programs and would signal the
Department's intent to reach these populations, creating opportunities
for further engagement with these groups.
The Department agrees with these comments that the activities
outlined in Sec. 30.8(a)(1) should focus more on what type of
population these outreach and recruitment efforts are reaching, rather
than prescribing the specific organizations that sponsors must reach
out to. Accordingly, Sec. 30.8(a)(1)(i) of the Final Rule is revised
to focus on disseminating information to organizations serving the
underutilized group regarding the nature of apprenticeship,
requirements for selection for apprenticeship, availability of
apprenticeship opportunities, and the equal opportunity pledge of the
sponsor. The Final Rule further specifies that these organizations may
include community-based organizations, local high schools, local
community colleges, and local vocational, career and technical schools,
thus providing the sponsor with greater flexibility in deciding which
organizations will serve as the best partners in reaching out to the
specific community in which the sponsor is underutilized.
Some commenters identified specific outreach, recruitment, and
retention activities that they thought were not effective. A JATC
stated that the proposed rule's newspaper advertising requirement in
Sec. 30.8(a)(1)(ii) would be a waste of money and suggested that the
sponsors be given more flexibility to advertise in media formats that
are more affordable and more effective in reaching targeted audiences.
An industry association argued that registered apprenticeship programs
should be encouraged--not required--to establish partnerships with pre-
apprenticeship programs because this would effectively require
apprenticeship programs to establish and operate their own pre-
apprenticeship programs. Many commenters were concerned about what they
perceived to be a requirement that sponsors establish pre-
apprenticeship programs.
The Department agrees that some of these requirements, as written,
may be overly prescriptive for sponsors. The Department is therefore
making two additional changes to Sec. 30.8(a). First, the Department
will remove the requirement that sponsors advertise their
apprenticeship opportunities in newspapers, referring instead to
``appropriate media'' which have a wide circulation in the relevant
recruitment areas. Second, the Department reaffirms, as it did
originally in the preamble to the NPRM, that linkage agreements need
not be highly formal, detailed arrangements, but rather are intended to
be straightforward, dynamic partnerships that can be easily tailored to
meet sponsors' needs. The Department also emphasizes that nothing in
the Final Rule requires a sponsor to establish a pre-apprenticeship
program; the rule only requires that sponsors leverage existing pre-
apprenticeship programs as sources for recruitment into the sponsors'
programs. To make this clear, the Department is amending Sec.
30.8(a)(1)(iv) to read: ``Establishment of linkage agreements or
partnerships enlisting the assistance and support of pre-apprenticeship
programs, community-based organizations, advocacy organizations, or
other appropriate organizations, in recruiting qualified individuals
for apprenticeship'' (emphasis added). Amending the ``and'' to ``or''
also clarifies that linkage agreements need not be entered into with
all of these organizations, but with any of the types of organizations
that may assist in increasing outreach to underutilized groups.
Two national unions and a local JATC urged the Department to
clarify whether the ERISA would permit joint labor-management programs
governed by ERISA to use their resources to support pre-apprenticeship
programs, such as by funding pre-apprenticeship programs or providing
pre-apprenticeship training to the community. This comment was
addressed within the larger discussion of how this rule coexists with
ERISA fiduciary obligations in Sec. 30.1, above.
A number of commenters also suggested examples of technical
assistance that the Registration Agency could provide. For instance,
several advocacy organizations recommended that the Department develop
a standardized but customizable evaluation tool which would include the
criteria that should be used to evaluate the effectiveness of such
outreach, recruitment, and retention activity, and would allow sponsors
to self-document deficiencies and self-identify remediation activities.
Several advocacy organizations also recommended that the Department
reference in the Final Rule and/or on its Web site the technical
assistance tools and materials that can be used to facilitate sponsors'
outreach, recruitment, and retention efforts, including those developed
by Women in Apprenticeship Act (WANTO) grantees.
As resources permit, the Department will gather effective tools for
compliance assistance and will work to provide guidance to sponsors
reflecting
[[Page 92067]]
recommended practices for outreach, recruitment, and retention.
Paragraph 30.8(b): Other Activities
In addition to the activities required in proposed Sec. 30.8(a),
as a matter of best practice, proposed Sec. 30.8(b) encouraged but did
not require sponsors to consider other outreach, recruitment, and
retention activities that may assist them in addressing any barriers to
equal opportunity in apprenticeship. Such activities included but were
not limited to: (1) Use of journeyworkers and apprentices from the
underutilized group or groups to assist in the implementation of the
sponsor's AAP; (2) use of individuals from the underutilized group or
groups to serve as mentors and to assist with the sponsor's targeted
outreach and recruitment activities; and (3) conducting exit interviews
of each apprentice leaving the sponsor's apprenticeship program prior
to receiving his/her certificate of completion to understand better why
the apprentice is leaving and to help shape the sponsor's retention
activities.
Several advocacy organizations recommended that the Department make
it mandatory for sponsors to conduct an exit interview with each
apprentice leaving the program early, rather than an encouraged
activity under Sec. 30.8(b), reasoning that it would help program
sponsors better understand the reason for early departure. An advocacy
organization also recommended that the Department add direct entry as
an encouraged, but not required, approach to outreach. Further, this
commenter suggested that the Department should encourage program
sponsors to administer their own in-house programs to prepare the
members of targeted classes for the program's entrance exam. The
Department declines to incorporate these activities into the regulatory
text. Nonetheless, sponsors are once again encouraged to use these, or
any other outreach, recruitment, and retention method that it feels
will be most useful in increasing the diversity of its program.
Finally, some commenters put forth suggestions, or sought
clarification, on how parties can work together to conduct outreach
activities. An industry association recommended that the Department
give smaller programs the option to pool their outreach efforts and
have their efforts be executed by a single entity or a third party. An
industry association stated that, while they do not oppose the proposed
four required recruitment activities, association-sponsored programs
that rely primarily on their employer members to supply apprentices to
chapter programs should be entitled to rely on the outreach and
recruitment efforts of the actual employers of the apprentices in
question. In such circumstances, this commenter suggested that
association program sponsors should be exempted from requirements of
Sec. 30.8, and/or should be permitted to rely on the affirmative
action efforts that their participating employer members have engaged
in to establish the necessary outreach and recruitment efforts.
Sponsors are encouraged to work with each other, with their
employers, with outside parties and organizations, and with industry
groups and consortia, as appropriate, to improve the effectiveness of
their outreach and recruitment efforts. Ultimately, however, it will be
the sponsor's responsibility to ensure that its program is meeting the
standards established in this Final Rule. The Final Rule does not
provide for exemptions for joint-programs, and the Department declines
to include one, for the reasons discussed in previous sections
addressing the joint sponsor issue.
Review of Personnel Practices (Sec. 30.9)
Proposed Sec. 30.9 required that any sponsor subject to the AAP
requirements in this proposed rule (i.e., those with five or more
apprentices who are not otherwise exempt) must review its personnel
processes on at least an annual basis to ensure that it is meeting its
obligations under part 30.
Paragraph 30.9(a)
Several advocacy groups supported the proposed annual personnel
processes review requirements under Sec. 30.9 and recommended that it
would be beneficial to involve apprentices and journeyworkers in the
review. Another advocacy group supported the proposed proactive review
approach in Sec. 30.9 and recommended reviewing affirmative action
measures as frequently as monthly during the first year, making the
results of such reviews public, and involving community stakeholders in
the reviews.
In contrast, several commenters disagreed with the annual review
requirements. A State Department of Labor asserted that the proposed
annual review of personnel process may be excessive and costly and
could deter the opening and expansion of apprenticeship programs. A
national JATC stated that although personnel process reviews were good
business practice, the reviews should not be required every year.
Instead, the JATC recommended reviews only in the event that data
indicate a deficiency in certain demographics and that the review would
be a part of the effort to correct the deficiency. An industry
association requested the Department eliminate the requirement that
program sponsors review personnel practices every year and instead
recommended that reviews be conducted on an ``as needed'' basis or no
less than every 3 years. Commenting that sponsors do not indenture new
participants every year, a State Department of Labor recommended that
the Department require personnel process reviews only in advance of
recruitment and that sponsors maintain records of these reviews to
supply to the Registration Agency upon request.
In the NPRM, the Department commented that this requirement was a
good business practice that many entities should already be conducting
themselves to help determine whether they are in compliance with the
EEO obligations that they have undertaken under current part 30.
Indeed, the proposal drew upon provisions in the existing regulations,
such as those providing for ``periodic audits of affirmative action
programs and activities'' set forth under current Sec. 30.4(c)(10). We
disagree with the commenter suggesting that such reviews should occur
only when a sponsor is underutilized in women or a particular racial/
ethnic group. This is because the aim of ensuring that an
apprenticeship program is operating free from discrimination goes
beyond the simple numbers of individuals from various protected groups,
and discrimination can exist absent a finding of underutilization. For
instance, a careful review of personnel policies at the program,
industry, and occupational level can uncover occupational segregation
in which women and/or minorities are more likely to be in lower paying
occupations than higher paying occupations, as well as unequal
treatment in compensation, work assignments, performance appraisals,
discipline, the handling of accommodation requests--all of which are
important elements of equal employment opportunity that may go largely
undetected in utilization analyses. Indeed, the idea that an AAP is
purely numerical-driven helps to feed the flawed notion that it
constitutes ``quotas.'' The Final Rule is revised to clarify that these
reviews are required whether or not there is underutilization, and that
this review must look at program, industry, and occupational policies
and practices to fully examine
[[Page 92068]]
whether there are impediments to equal employment opportunity.
We understand the concerns of commenters asserting that an annual
review may be burdensome and serve to discourage interest in new
entities creating apprenticeship programs, but have concluded that this
review is a valuable exercise for sponsors to follow so that they can
uncover any barriers to EEO within their programs. One commenter
suggested that AAP reviews should include employment practices as well
as personnel processes and administration of the program, reasoning
that diverse work assignments and rotation among work processes are
critical to apprenticeship training. The commenter said that creating
record systems to capture actual on-the-job training and maintaining
those records throughout the course of an apprenticeship is necessary
to ensure quality training. The proposed rule (and in turn the Final
Rule) incorporated these ideas, listing a number of employment
practices that would be part of the review in Sec. 30.9, and the
recordkeeping requirement of Sec. 30.12 requires retaining information
relative to the operation of the apprenticeship program, specifying a
number of employment actions relevant to apprenticeship including
``hours of training provided.''
Several commenters requested clarification of the requirements in
proposed Sec. 30.9 as they would relate to group sponsors. A national
union and a national JATC stated that proposed Sec. 30.9 does not
distinguish between JATCs and employers and, thus, imposes obligations
on JATCs that are inapplicable to these programs since they do not
employ apprentices or individuals seeking to be apprentices. The
commenters stressed that because JATCs do not promote apprentices or
establish wages, only the employers have the ability and obligation to
address harassment and discrimination affecting recruitment and
retention. Specifically, an industry association recommended that the
Department remove the requirements in Sec. 30.9(a), reasoning that the
requirements to review the listed personnel practices would be
impossible for joint employer apprenticeship programs in the
construction industry to meet. The commenter stressed that construction
apprentice programs provide training to apprentices who at various
times work for different construction employers, all of whom have
separate employment policies and procedures. The commenter reasoned
that the construction apprentice programs have no ability to monitor
employment policies or procedures of each individual employer.
The Final Rule requires the review of all sponsors. As discussed in
several previous sections raising the issue of how the obligations will
apply to group sponsors, we recognize that certain personnel actions
may be undertaken by participating employers, rather than the sponsors
themselves. In such cases, the reviews may correspond to the structure
of the sponsor's program, but in keeping with historical practice and
provisions of the existing rules, sponsors will need to coordinate with
the participating employers in order to ensure that the sponsors are
not coordinating apprenticeship programs with employers that are
actively discriminating against the apprentices placed there. OA will
provide further guidance modeling what an appropriate review will look
like under these regulations.
An industry association requested clarification on how penalties
would be assessed in the event of noncompliance with Sec. 30.9. In
particular, the commenter asked whether a penalty would be assessed
against the sponsor entity or the individual EEO officer designated by
the sponsor as ``responsible'' and ``accountable'' for overseeing and
implementing the sponsor's AAP, per proposed Sec. 30.3(b)(1). As has
been the case historically, OA's interest is in apprenticeship programs
that are successful--in the development of apprentices, employers, and
in the promotion of equal employment opportunity. To that end, OA
concentrates its resources on providing technical assistance so
sponsors comply in the first place, and in the event violations occur,
having sponsors voluntarily correct them. The latter part is embodied
in the Final Rule's discussion of compliance evaluation findings at
Sec. 30.13(b), below. However, if sponsors refuse to correct
deficiencies identified, OA ultimately may seek to deregister the
program per Sec. 30.15 of the Final Rule.
Finally, as with previous sections describing AAP obligations, the
Final Rule adds a new paragraph to Sec. 30.9, at 30.9(a)(1),
describing when sponsors must come into compliance with the obligations
specified therein. In short, those who are already sponsors of
registered apprenticeships as of the effective date of this rule will
have two years to come into compliance with this section. Sponsors who
register apprenticeship programs for the first time after the effective
date of the rule will have two years from the date of registration to
comply with this section.
Paragraph 30.9(b)
Proposed Sec. 30.9 also required a sponsor to retain records of
its annual review of personnel practices, and to identify any
modifications that the sponsor has made or plans to make as a result of
this review. A SWA requested clarification on the proposed Sec.
30.9(b) requirement that program sponsors ``include a description of
its review.'' The commenter stated that the language was unclear as to
whether the rule required the sponsor to detail when and how steps were
conducted and present its findings, or if the program sponsor was
required to publish the procedure used for the review. Generally
speaking, the memorialization of the review could include both of these
things, but the focus should be on the former--how, when, and which
personnel processes were reviewed, as well as any modifications made as
a result of this review. As stated above, OA will provide further
guidance modeling what an appropriate review would look like under this
section, including a model written AAP.
Finally, a commenter requested that the Department remove the
proposed Sec. 30.9(b) requirement that sponsors include descriptions
of these reviews in their written AAPs, reasoning that personnel
processes may need to be revised frequently and should not be tied to
AAP review schedules. Furthermore, the commenter argued that these
reviews of personnel processes may be difficult for the Registration
Agencies to monitor because there would be little consistency among
sponsors as to how they perform the review.
As to the first point, we first clarify that not all personnel
process revisions need to be retained, but only those made to the
program ``as a result of its review'' required by Sec. 30.9(a), that
is, the review for EEO compliance. We note that also this review under
Sec. 30.9(a) occurs annually and the schedule for updating the written
AAP is less frequent, occurring at each compliance evaluation and then
again three years later if there has been no intervening compliance
evaluation. As a matter of best practice, we would expect the sponsor
to memorialize any changes made to their personnel practice at the time
they are being made, but OA will measure compliance by whether the
sponsor has memorialized the changes in its written AAP. While updating
the written AAP occurs not less than every three years, each update
should include the results of the reviews from each year since its last
written AAP. As for the point regarding consistency, as stated above,
[[Page 92069]]
OA will provide models for what the review should include, which should
help to promote some consistency.
Selection of Apprentices (Sec. 30.10)
Under the existing section covering selection of apprentices, Sec.
30.5, sponsors could select any one of four methods of selecting
apprentices: (1) Selection on the basis of rank from pool of eligible
applicants; (2) random selection from pool of eligible applicants; (3)
selection from pool of current employees; or (4) an alternative
selection method which allows the sponsor to select apprentices by
means of any other method including its present selection method,
subject to approval by the Registration Agency. Alternative selection
methods could include, for example, the use of interviews as one of the
factors to be considered in selecting apprentices, pre-apprenticeship
programs, ``direct entry'' programs,\78\ or a combination of two or
more selection methods.
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\78\ Under this selection method, the application process is
waived so that qualified applicants can enter directly into an
apprenticeship program, where the individual applicant demonstrates
specific education and/or skills previously attained.
---------------------------------------------------------------------------
Proposed Sec. 30.10 (renumbered due to reorganization of this
part) sought to simplify the current regulatory requirements related to
procedures used by sponsors to select apprentices to adopt any method
for selection of apprentices, provided that the method used: (1)
Complies with the UGESP at 41 CFR part 60-3; (2) is uniformly and
consistently applied to all applicants for apprenticeship and
apprentices; (3) complies with the qualification standards set forth in
title I of the ADA; and (4) is facially neutral in terms of race,
color, religion, national origin, sex, sexual orientation, age (40 or
older), genetic information, and disability. Commenters expressed
varying views, some general and some specific, on the proposed
revisions.
With regard to general comments, a State JATC and an industry
association supported the streamlined approach for apprenticeship
programs articulated in Sec. 30.10 and stated that the proposed rule
would provide greater flexibility to apprenticeship programs in their
selection methods. The State JATC argued that the current approach
requiring program sponsors to utilize one apprenticeship selection
process prevents programs from attracting a broader range of applicants
because it does not account for factors like geographic location,
wherein one selection method may be suitable for one location, but not
another. The JATC reasoned that the ``one size fits all'' approach
disrupted the administration of intake practices at their training
centers and was ineffective at reaching out to potential apprentices.
Many commenters further supported the proposed requirement that
sponsors' selection method(s) be facially neutral in terms of race,
color, religion, national origin, sex, sexual orientation, age (40 or
older), genetic information, and disability (Sec. 30.10(b)(4)), as
well as the requirement that sponsors must evaluate the impact of their
selection procedure(s) on race, sex, and ethnic groups (Hispanic or
Latino/non-Hispanic), but some requested that gender identity,
pregnancy, and caregiver status be added to this list. We decline to do
so, for reasons previously provided.
However, several commenters generally preferred the current
requirements relating to selection of apprentices because they were
specific and descriptive, and expressed concern that the proposed
regulations were lacking in this regard and would not encourage or
enable apprentice selection procedures that are more equitable than the
processes already in use by apprenticeship programs. In addition,
several commenters expressed concern that proposed Sec. 30.10 would
impose a significant burden upon sponsors. An SWA argued that the
proposed regulations would require expenditure of financial and human
capital resources to determine if their selection procedures meet the
compliance requirements of UGESP, Title I of the ADA, and EEOC
regulations. Another State agency expressed concern that the
requirement to comply with UGESP regulations may drive away potential
sponsors who find the administration of the regulation overly
burdensome.
As to the burden concern connected with familiarization of the
UGESP, we note that the existing regulations required that sponsors
follow the procedures set forth in UGESP when they were selecting on
the basis of rank from a pool of eligible applicants or any alternative
selection methods using qualification standards.\79\ The proposed
regulation was therefore in keeping with the existing regulations in
that respect, and thus should not add any additional burden.\80\
Relatedly, with regard to some commenters' preference for previous
selection models, the Final Rule does not prevent sponsors from using
the same selection devices they've used under the previous regulations
if they prefer to do so, so long as these selection devices do not
discriminate as specified in this part. An industry association
recommended language like this in the regulatory text, but given that
references to ``the previous edition of CFR 29 part 30'' will soon
become obsolete, we believe the guidance stated here is sufficient.
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\79\ See existing 29 CFR 30.5(b)(1), 30.5(b)(4)(B).
\80\ A third selection procedure in the existing regulations,
selection from a pool of current employees, did not include a
requirement for UGESP compliance, but this is largely because such
selections are frequently based on seniority, and there is built
into UGESP an exemption for bona fide seniority systems. 41 CFR 60-
3.2(C). The fourth selection procedure, random selection, also does
lend itself to analysis under UGESP.
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Numerous commenters recommended that the Department explicitly
state that sponsors are permitted and encouraged to implement a
different selection procedure(s) or extend or reopen selection periods
if the initial selection procedure or period was not effective in
complying with EEO requirements and/or making progress towards
affirmative action goals. The proposed rule is broadly worded in order
to provide flexibility to sponsors so that they may use the selection
method or methods that fit their program, including any of the methods
included in the formal rule. Thus clarified, there is no need to add
this proposed wording to the rule.
Some commenters addressed direct entry programs as a selection
procedure. An industry association expressed support for the proposed
rule's mention of direct entry programs as a potential selection
processes, commenting that many of its members preferred this method.
An advocacy organization also supported the Department's express
allowance of direct entry programs to apprenticeship selection, stating
that it was an effective method for improving inclusion of
underrepresented groups. In the NPRM and in this preamble, the
Department has underscored that the flexible approach in the proposed
Sec. 30.10 would permit sponsors to use direct entry as a selection
method, but does not believe that this approach must be explicitly
mentioned in the language of the rule above other methods.
One national JATC was concerned that the proposed rule's treatment
of direct entry processes as a selection procedure would require them
to discontinue using their direct entry program. It argued that direct
entry methods should not be treated as selection procedures. The
commenter asserted that although the proposed rule recognized direct
entry programs as an acceptable selection procedure, the language in
the preamble requiring that selection methods apply ``to all applicants
for apprenticeship and
[[Page 92070]]
apprentices'' would result in apprenticeship programs not being able to
obtain apprentices from any other source. The commenter stressed that
its direct entry apprenticeship program was meant to supplement
existing pools of applicants, not to be the sole entry into the
apprenticeship program. In a similar vein, an industry association
asked the Department to clarify that pre-apprenticeship programs are
not required to be an exclusive source of apprentice recruitment, and
suggested clarifying language to proposed Sec. 30.10(b)(2) to address
this. A State JATC stated that with the increasing potential for non-
union apprenticeship programs, union apprenticeship programs should be
permitted to employ more than one intake method to ensure that union
apprenticeship programs would survive.
We have considered the commenters' points, and have clarified the
regulatory text in response. The proposed Sec. 30.10(b)(2) stated that
``[t]he selection procedure must be uniformly and consistently applied
to all applicants and apprentices.'' One reading of that language is
that sponsors must use only one selection procedure; that was not the
intent. The intent, as stated in the NPRM preamble, was to allow
sponsors flexibility to use one or more selection procedures, and that
the selection procedures must be uniformly and consistently applied to
those applicants within each procedure. To clarify this point, the
Department has revised ``method'' and ``procedure'' to include the
plural as appropriate throughout this provision. The Department has
also revised Sec. 30.10(b)(2) by adding ``within each selection
procedure utilized.''
A few commenters asked the Department to clarify how sponsors
should comply with UGESP requirements. An SWA stated that the inclusion
of UGESP and ADA regulations leave program sponsors with no clear idea
of what is acceptable. An industry association echoed these comments
and suggested that the Department should clarify that apprenticeship
qualifications derived from the 29 CFR part 29 rules on apprenticeship
standards are consistent with the UGESP. A State agency and an industry
association stated that the UGESP regulations are complex and requested
clarification on how the requirements would be applied to
apprenticeship programs. For example, a State agency stated that 41 CFR
part 60-3 requires validation of selection procedures but the proposed
rule did not state how this provision would be applied. The commenter
also raised a further question suggesting that the implementation of
this requirement to follow the UGSEP procedures could be complicated
for group sponsors. The commenter stated that 41 CFR part 60-3 applies
to individual employers with Federal contracts, whereas apprenticeship
programs may or may not be individual employers. In particular, this
commenter said that in the construction trade often sponsors are a
joint apprenticeship committee or non-joint committee. The commenter
stated that the apprenticeship program sponsors develop the selection
procedures and the apprenticeship compliance review is conducted on the
sponsor not the individual employer. Therefore, the commenter asserted
that the Department's reference to UGESP must be clarified.
As noted above, under the current provisions addressing selection
procedures, program sponsors, whether individual or group sponsors, are
already required to comply with those regulations under the current
part 30. In addition, as clarification, the procedures in 41 CFR part
60-3 are not limited to individual employers with Federal contracts;
rather they provide a uniform framework to a variety of entities for
the proper use of tests and other procedures. Nonetheless, the
Department expects to provide guidance to stakeholders in order to
facilitate implementation of the new rule.
Other commenters also encouraged the Department to provide
guidance. An advocacy organization suggested that the Department should
issue guidance on best practices in selection procedures. The commenter
stated that this guidance should include references to linkages with
pre-apprenticeship programs as an eligible pool of workers, as well as
``analysis of selection procedures, such as relying on interviews or
base apprenticeship program selection on a homogeneous pool of current
candidates that can reinforce underrepresentation the regulations seek
to remedy.'' An individual commenter suggested that the Department
provide uniform guidelines on employee selection using the process that
created the Advisory Committee on Apprenticeship's guidance on quality
pre-apprenticeship programs. Numerous commenters recommended that the
Department establish guidelines for standardizing direct entry into
apprenticeships for graduates of pre-apprenticeship programs that
adhere to the quality framework to be set out in Sec. 30.2. As stated
throughout, the Department anticipates issuing technical assistance
guidance in advance of the applicable effective and/or compliance dates
of this rule, and will give strong consideration to incorporating these
specific requests.
Numerous advocacy organizations suggested that the regulations
should explicitly require that skills requirements, including strength
and/or physical abilities tests or standards that are used to screen
and/or rank apprenticeship candidates, must be related to and necessary
for the actual on-the-job performance requirements and must meet the
requirements listed in the current regulations at Sec.
30.5(b)(1)(iii). Some of these commenters reasoned that these tests had
sometimes been used to exclude certain groups of applicants. In
response, the Department notes that the requirements of current Sec.
30.5(b)(1)(iii) are carried forward by the requirement that the use of
the selection procedure comply with the UGESP in 41 CFR part 60-3, as
well as the standard non-discrimination obligations set forth in Sec.
30.3.
Finally, some advocacy organizations stated that, if a program
sponsor wanted to maintain a selection procedure that resulted in an
adverse impact to underrepresented groups, it must demonstrate there is
no alternate procedure available to meet the business necessity. This
comment is already addressed by the rule, as it generally states the
obligations for employers under the UGESP whose selection procedure(s)
have resulted in an adverse impact. The Department notes that the term
``underrepresented groups'' is not necessarily synonymous with
``protected groups,'' under the rule, and clarifies that UGESP applies
only to race, sex, and ethnic groups.
Invitation To Self-Identify as an Individual With a Disability (Sec.
30.11)
The Department proposed to move the language in current Sec. 30.11
entitled ``Complaint procedure,'' to Sec. 30.14, and to add a new
Sec. 30.11 entitled ``Invitation to Self-Identify as an Individual
with a Disability.'' This section of the NPRM proposed to require
sponsors required to maintain an AAP to invite applicants for
apprenticeship to voluntarily self-identify as an individual with a
disability protected by this part at three stages: (1) At the time they
apply or are considered for apprenticeship; (2) after they are accepted
into the apprenticeship program but before they begin their
apprenticeship; and (3) once they are enrolled in the program.
Thereafter, proposed Sec. 30.11 required sponsors to remind
apprentices yearly that they may voluntarily update their disability
status, thereby allowing those who have subsequently become disabled or
who did not wish to self-
[[Page 92071]]
identify during the application and enrollment process to be counted.
Proposed Sec. 30.11 also clarified that sponsors would not be
permitted to coerce individuals to self-identify, required that
sponsors maintain self-identification information in a confidential
manner, and emphasized sponsors' continuing responsibility to take
affirmative action with respect to known disabilities and to refrain
from discriminating against individuals with disabilities.
The Department received a number of comments regarding the
requirement to invite self-identification. Many commenters opposed to
the requirement argued that applicants or apprentices would not choose
to self-identify and that this would result in inaccurate data. For
example, unions worried that apprentices and trainees would be
reluctant to disclose disabilities, particularly those working in the
construction industry where the work often requires certain physical
capabilities. These commenters also opposed any penalty that would be
applied to sponsors for failing to meet their utilization goal for
individuals with disabilities when the failure to reach the goal could
be due to apprentices and applicants choosing not to self-identify. A
number of other commenters, including SWAs, also questioned the
accuracy of the data produced by self-identification and requested
clarification on the proper disability eligibility determination
procedures, including how apprentices would know if they have an
eligible disability and how sponsors can determine if the individual
has an eligible disability. One commenter suggested that sponsors be
permitted to track and report applicants or apprentices who request and
document that they need accommodations for a disability, even if they
have not voluntarily self-identified.
The Department is retaining the requirement to invite self-
identification in the Final Rule. We concede the possibility that there
may be underreporting of individuals with disabilities reporting as
such, especially at the beginning when the requirement is new. The
Department does not think, however, that this is a sufficient reason to
remove the requirement to invite self-identification. While not
perfect, the data that will result from this requirement will provide,
for the first time, some degree of quantitative data regarding the
participation of individuals with disabilities in the sponsor's
apprenticeship workforce and applicant pools. This, in turn, should
allow the sponsor and the Department to better identify, monitor, and
evaluate the sponsor's recruitment and employment practices with
respect to individuals with disabilities. We also believe that the
response rate to the invitation to self-identify will increase over
time, as people become accustomed to the invitation and workplaces
become more welcoming to individuals with disabilities. The use of
standardized language issued by the Administrator in the invitation
will also reassure applicants that the request is routine and executed
pursuant to obligations created by OA, and will hopefully also increase
the response rate. Sponsors should also work to develop an inclusive
and welcoming culture and provide support for its apprentices and
applicants with disabilities. OA will provide technical assistance and
guidance regarding methods for increasing participation in the self-
identification process.
Additionally, the standardized invitation language contains
information to help individuals know if they have, or had, a
disability. Sponsors should accept the identification provided by the
individual without seeking to further verify the nature of the
individual's disability. The standardized language proposed in the
NPRM, and adopted in the Final Rule, prescribes a narrow inquiry so as
to minimize privacy concerns and the possibility of misuse of
disability-related information. The required invitation asks only for
self-identification as to the existence of a ``disability,'' not as to
the general nature or type of disability the individual has, or the
nature or severity of any limitations the individual has a result of
their disability.
Furthermore, the Department reiterates that failure to meet the
utilization goal for individuals with disabilities will not, by itself,
result in any violations of this part. Therefore, even if apprentices
with disabilities choose not to self-identify, the sponsor would not be
subject to any enforcement actions as a result of its underutilization.
Again, failure to meet the goals would simply require the sponsor to
assess whether impediments to equal opportunity exist in its program.
If a sponsor discovers that apprentices are refusing to self-identify,
the sponsor could note that as a possible reason for its
underutilization, and also attempt to take steps that would encourage
apprentices to feel more comfortable self-identifying. We note that
OFCCP has published on its Web site a video explaining why job
applicants and employees are asked to voluntarily self-identify if they
have a disability under Section 503, the important role that self-
identifying plays in ensuring equal employment opportunity for
individuals with disabilities, and offering employers the option of
disseminating the video to their applicants and employees as guidance
to increase self-identification.\81\
---------------------------------------------------------------------------
\81\ See Office of Federal Contract Compliance Programs:
Disability Inclusion Begins with You, available at https://www.dol.gov/ofccp/SelfIdVideo.html (last accessed May 9, 2016).
---------------------------------------------------------------------------
With regard to the question of sponsors identifying individuals
with disabilities who do not self-identify, the Department agrees that
it is important that the reporting of disability demographic
information be as accurate as possible. The Department therefore
believes that it is appropriate to allow sponsors to identify an
individual as having a disability for the purposes of Sec. 30.7, if
the individual does not voluntarily self-identify when: (1) The
disability is obvious (e.g., someone is blind or missing a limb) or (2)
the disability is known to the sponsor (e.g., an individual says that
he or she has a disability or requests reasonable accommodation that is
clearly related to a disability). This is consistent with the approach
that OFCCP has used for disability identification in its Section 503
program, as well as the approach used to identifying ethnicity for
those who have not disclosed under its Executive Order 11246
program.\82\ The Department believes that this approach strikes the
appropriate balance between the privacy concerns of those with
disabilities and the need for reporting information to be as accurate
as possible. Sponsors may not guess or speculate when identifying an
individual as having a disability. Nor may they assume that an
individual has a disability because he or she ``looks sickly'' or
behaves in an unusual way. As one commenter suggested, a sponsor may
also include individuals who request reasonable accommodations as
individuals with disabilities, even if those individuals choose not to
self-identify.
---------------------------------------------------------------------------
\82\ See http://kb.dol.gov/DOLArticlePage?agency=OFCCP&parentCatValue=Employer&article=ka1i0000000WEq1AAG (last accessed June 21, 2016).
---------------------------------------------------------------------------
Some commenters, including JATCs and a local union, asserted that
the proposed Sec. 30.11 requirements would place additional human
resources, reporting, and cost burdens on apprenticeship programs and
would delay the processing of applications. A State agency recommended
that the Department should not require program sponsors to request that
individuals self-
[[Page 92072]]
identify for one year and that the Department should take additional
time to work through an implementation strategy for the new
requirements. The commenter also stated that additional guidance and
technical assistance would be necessary prior to sponsors implementing
the requirements in Sec. 30.11.
To ease the burden on sponsors in implementing this provision, the
Department is giving sponsors more time to come into compliance with
this provision, as detailed below in new paragraph 30.11(h). The
Department will provide technical assistance to sponsors during the
transition time. As discussed above, the Department is also prescribing
the language that sponsors must use when inviting apprentices or
applicants to self-identify. Sponsors, therefore, will not need to
spend time creating their own self-identification language. The
Department also notes that application processing need not be
significantly slowed as a result of including the self-identification
invitation form. As the Final Rule states that the invitation must be
detachable from the application for apprenticeship, the applicant's
self-identification form can be reviewed for data analysis purposes at
a later time and need not be reviewed in conjunction with the
application for apprenticeship.
Paragraph 30.11(a): Pre-Offer
Proposed Sec. 30.11(a) required the sponsor to invite each
applicant to voluntarily self-identify as an individual with a
disability at the time they apply for or are considered for
apprenticeship. Proposed Sec. 30.11(a) further explained that the
invitation may be included with the application materials, but must be
separable or detachable from the application for apprenticeship and
that the sponsor was required to use the language prescribed by the
Administrator, pursuant to Sec. 30.11(b).
Multiple commenters expressed concern with the pre-offer
invitation, claiming that it conflicted with the ADA and its
implementing regulations. One commenter requested that the term
``voluntarily'' be inserted prior to ``inform the sponsor,'' as is
currently the case under Section 30.11(1)(c). A Member of Congress
asserted that, despite the EEOC's position that invitations to self-
identify as part of an AAP would not violate the ADA, individuals could
still pursue litigation against employers under the ADA. A number of
commenters, including a company and a State agency, remarked that
inquiring about an individual's disability status, particularly at the
pre-offer stage, could conflict with state law as well. An industry
association asked how a person's status as an individual with a
disability can be used for affirmative action purposes if it cannot be
used by hiring managers in the decision-making process.
As detailed in the NPRM, the requirement to give applicants and
employees the opportunity to self-identify is consistent with the ADA.
Although the ADA generally prohibits inquiries about disability prior
to an offer of employment, it does not prohibit the collection of this
information by a sponsor in furtherance of its part 30 affirmative
action obligation to provide equal opportunity in apprenticeship for
qualified individuals with disabilities. The EEOC's regulations
implementing the ADA state that the ADA ``does not invalidate or limit
the remedies, rights, and procedures of any Federal law . . . that
provides greater or equal protection for the rights of individuals with
disabilities'' than does the ADA.\83\ The OA part 30 rule is one such
law. In the course of OFCCP's Section 503 rulemaking, counsel for the
EEOC provided a letter stating that OFCCP's pre-offer self-
identification process, which is functionally identical to that
included in this Final Rule, was permissible under the ADA. That
interpretation would apply with equal power to this Rule. Accordingly,
the Department adopts Sec. 30.11(a) as proposed.
---------------------------------------------------------------------------
\83\ 29 CFR 1630.1(c)(2).
---------------------------------------------------------------------------
With regard to the concern that, notwithstanding the legality of
this provision, sponsors may face increased discrimination complaints
as a result, we do not believe this will present a significant
obstacle. While knowledge of the existence of a disability, like
knowledge of a person's race, ethnicity, or gender, is a component of
an intentional discrimination claim, to find intentional discrimination
it must be proven not only that the sponsor knew that a person had a
disability but that the sponsor treated the person less favorably
because of his or her disability.\84\ We note, moreover, that sponsors
have long had knowledge of the disabilities of applicants who have
visible disabilities, such as blindness, deafness, or paraplegia, but
that the Department has had no means of knowing that such individuals
were present in the applicant pool or their experience in the
application and selection process. Requiring sponsors to invite pre-
offer self-identification will help fill this void.
---------------------------------------------------------------------------
\84\ In cases where there has been a denial of a reasonable
accommodation, the knowledge that comes from a self-identification
form provides no additional basis for a complaint, as individuals
need to disclose their disability in order to request an
accommodation.
---------------------------------------------------------------------------
The Department points out that, generally, self-identification
information should not be provided to interviewing, testing, or hiring
officials, as it is confidential information that must be kept separate
from regular personnel records. This will help ensure that these
officials do not, in fact, have knowledge of which applicants have
chosen to self-identify as having a disability. In response to the
question regarding how self-identification information can be used for
affirmative action purposes if hiring managers cannot use it in the
decision-making process, this fundamentally misunderstands the purpose
of the data collection. The regulations make clear that selection
officials should never base their employment decisions on a protected
basis, including an individual's disability status. The purpose of the
self-identification and utilization goal is to collect data that will
enable the sponsor to assess whether barriers to apprenticeship exist
for individuals with disabilities, e.g., a decreasing rate of
applications from individuals with disabilities over the years may
suggest that further or different outreach and recruitment efforts
should be conducted; it is not designed to encourage sponsors to select
individuals based on their disability status.
As mentioned above, some commenters claimed that the requirement to
invite self-identification could conflict with state laws, but did not
indicate any specific provisions of state law that would be
problematic. The Department notes that OFCCP's regulations implementing
Section 503 of the Rehabilitation Act also require contractors to
invite employees and applicants to self-identify as individuals with
disabilities, and no contractor has yet raised the issue of a
conflicting state law provision. Furthermore, to the extent that any
provision of state law did conflict with these regulations, the Final
Rule would preempt the state law provision, and would not serve as a
defense for failing to comply with this Part.
Proposed Sec. 30.11(a)(2) required that the sponsor invite
applicants to self-identify ``using the language and manner prescribed
by the Administrator and published on the OA Web site.'' The Department
sought comments on the specific language OA proposed to prescribe that
the sponsor use when inviting applicants to self-identify at the pre-
offer stage. That language was as follows:
[[Page 92073]]
1. Why are you being asked to complete this form? Because we are a
sponsor of a registered apprenticeship program and participate in the
National Registered Apprenticeship System that is regulated by the U.S.
Department of Labor, we must reach out to, enroll, and provide equal
opportunity in apprenticeship to qualified individuals with
disabilities. [42] To help us measure how well we are doing, we are
asking you to tell us if you have a disability or if you ever had a
disability. Completing this form is voluntary, but we hope that you
will choose to fill it out. If you are applying for apprenticeship, any
answer you give will be kept private and will not be used against you
in any way.
If you already are an apprentice within our registered
apprenticeship program, your answer will not be used against you in any
way. Because a person may become disabled at any time, we are required
to ask all of our apprentices at the time of enrollment, and then
remind them yearly, that they may update their information. You may
voluntarily self-identify as having a disability on this form without
fear of any punishment because you did not identify as having a
disability earlier.
2. How do I know if I have a disability? You are considered to have
a disability if you have a physical or mental impairment or medical
condition that substantially limits a major life activity, or if you
have a history or record of such an impairment or medical condition.
Disabilities include, but are not limited to: Blindness, deafness,
cancer, diabetes, epilepsy, autism, cerebral palsy, HIV/AIDS,
schizophrenia, muscular dystrophy, bipolar disorder, major depression,
multiple sclerosis (MS), missing limbs or partially missing limbs,
post-traumatic stress disorder (PTSD), obsessive compulsive disorder,
impairments requiring the use of a wheelchair, intellectual disability
(previously called mental retardation).
Please check one of the boxes below:
[ballot] YES, I HAVE A DISABILITY (or previously had a disability)
[ballot] NO, I DON'T HAVE A DISABILITY
[ballot] I DON'T WISH TO ANSWER
Your name:
Date:
Many advocacy organizations supported the proposed language
regarding the invitation to self-identify because it mirrored OFCCP
language used for Federal contractors in the regulations implementing
Section 503 of the Rehabilitation Act. Some recommended, however, that
the instructions for defining a disability should be clearer and
broader. A state agency also expressed concern that the sponsor may be
a committee, rather than an individual employer and that, in that case,
the committee may not be the entity extending the bona fide job offer.
The Department believes that the invitation language proposed in
the NPRM is sufficiently clear to enable individuals to decide whether
or not they have a disability. Additionally, the language states that
``Disabilities include, but are not limited to . . .,'' indicating that
conditions other than those listed on the invitation may qualify as a
disability. Furthermore, this language is consistent with that used in
other Department programs. As stated before, the Department thus adopts
the proposed language without change and will make this invitation form
available to sponsors. With regard to the question of sponsor
structure, as addressed in previous sections where the issue has
arisen, sponsors have historically entered into apprenticeship
agreements with participating employers that have included provisions
that the parties will coordinate to satisfy the obligations of part 30,
and we expect this practice to continue. Sponsors should be extending
the invitation to self-identify at the point at which apprentices are
accepted into the apprenticeship program, even if sponsors are not the
ones that would extend ultimate offers of employment to apprentices.
For sponsors that are not responsible for selecting the apprentices
that participate in this program, the sponsor would need to ensure that
its participating employers invited apprentices and applicants for
apprenticeship to self-identify at the time the employer reviews and
selects the applicant. Sponsors would then be under a continuing duty
to remind apprentices that they also have the opportunity to submit
their self-identification to the sponsor.
Lastly, the reference to inviting self-identification as part of a
sponsor's ``general duty to engage in affirmative action'' is amended
to clarify that the requirement to invite apprentices and applicants to
self-identify only applies to sponsors that are required to maintain an
AAP, and that inviting self-identification is part of their AAP
requirements. Inviting self-identification is not required as part of
the sponsor's general duty to engage in affirmative action pursuant to
30.3(b), and sponsors that do not maintain an AAP should not invite
apprentices to self-identify as individuals with disabilities.
Paragraph 30.11(b): Post Offer
Proposed Sec. 30.11(b)(1) required that the sponsor invite
applicants, after acceptance into the apprenticeship program, but
before they begin their apprenticeship, to voluntarily self-identify as
individuals with disabilities. This post-offer invitation to self-
identify is in addition to the invitation at the pre-offer stage, so
that individuals with hidden disabilities who fear potential
discrimination if their disability is revealed prior to being accepted
into the program will, nevertheless, have the opportunity to provide
this valuable data. Proposed Sec. 30.11(b)(2) again required that the
sponsor invite self-identification using the language and manner
prescribed by the Administrator and published on the OA Web site.
The Department did not receive any specific comments on this
paragraph that were not already discussed. The Department therefore
adopts proposed Sec. 30.11(b) as proposed.
Paragraph 30.11(c): Apprentices
In addition to the pre- and post-offer invitations to self-
identify, proposed Sec. 30.11(c) required that the sponsor invite each
of its apprentices to voluntarily self-identify as an individual with a
disability at the time the sponsor becomes subject to the requirements
of part 30 and then remind apprentices yearly that they may update
their disability status at any time. Allowing apprentices enrolled in a
registered apprenticeship program to update their status will ensure
that the sponsor has the most accurate data possible.
While some commenters supported the requirement to remind
apprentices that they can update their disability status throughout the
apprenticeship program, other sponsors questioned whether apprentices
would falsely identify as having a disability because they simply do
not possess the required skill for the trade and want to complete the
program. These comments appear to misconstrue the proposal and/or the
relevant law. At the outset, the Department notes that self-identifying
as an individual with a disability does not entitle someone to
preferential selection--indeed, that is unlawful under the rule--nor
does it automatically entitle someone to an accommodation to stay in
the program. It is a well-established principle of disability law that
if the individual is unable to perform the essential functions of a
position with or without reasonable accommodation, the individual is
not entitled to remain in that position.
The Department is revising paragraph (c) to eliminate the
requirement that sponsors must extend an invitation to those in its
apprenticeship program ``each time an apprentice is enrolled into an
apprenticeship program.'' Upon
[[Page 92074]]
reflection, we believe this was largely redundant, given that the one-
time invitation to the apprenticeship workforce during the first year
of compliance, coupled with the invitation to all those that receive an
offer to join the program, should ensure that everyone is provided the
self-identification form to complete and return. The one-time self-ID
solicitation for existing apprentices is set forth in paragraph (c)(1)
of the new rule, and the time for compliance with this one-time self-ID
invitation is set forth in new paragraph (h).
Paragraph 30.11(d)
Proposed Sec. 30.11(d) emphasized that the sponsor is prohibited
from compelling or coercing individuals to self-identify. A commenter
had expressed concern that the proposed rule could cause sponsors to
``encourage'' or pressure applicants and apprentices to self-identify
in order to meet the utilization goal. The Department adopts Sec.
30.11(d) as proposed to make clear that all self-identifications should
be submitted on a strictly voluntary basis and that sponsors are not
permitted to coerce individuals to self-identify.
Paragraph 30.11(e)
Proposed Sec. 30.11(e) emphasized that all information regarding
self-identification as an individual with a disability must be kept
confidential and maintained in a data analysis file in accordance with
proposed Sec. 30.12, and may not be included in an individual's
personnel file. Proposed Sec. 30.11(e) also states that self-
identification information must be provided to the Registration Agency
upon request and that the information may only be used in accordance
with this part.
Many commenters, including various State agencies and JATCs,
expressed concerns regarding the interaction between this provision and
the privacy protections afforded by the Health Insurance Portability
and Accountability Act (HIPAA). Other commenters stated that the
requirement to develop systems to maintain confidentiality and
segregate information regarding self-identification from the actual
hiring process may disproportionately burden small sponsors. This
commenter suggested that employers would need technical assistance from
Registration Agencies to comply with the proposed requirement to invite
applicants to self-identify a disability.
The Department adopts proposed Sec. 30.11(e) without change, and
notes that it will provide assistance to sponsors in complying with
this part. The data analysis file need not be complex, but simply
provide a method by which the sponsor can retain and track self-
identification information in the aggregate, rather than as connected
to each apprentice's personnel file. Maintaining the disability
demographic information in a file separate from each apprentice's
personnel file will also make it easier for sponsors to provide the
self-identification information to OA when requested to do so.
In response to the concerns over sharing the self-identification
information with the Registration Agency, the Department notes that
HIPAA privacy requirements generally do not apply to employers in their
capacity as employers.\85\ Rather, the privacy standards of HIPAA only
apply to covered entities under the statute, which are generally
limited to health plans, health care clearinghouses, health care
providers who transmit health information in electronic form, and their
business associates. The regulations implementing HIPAA also exclude
employment records from the definition of ``protected health
information.'' \86\ While HIPAA may not apply to this self-
identification information, sponsors are obligated, under this part, to
maintain this information in a confidential manner. This requirement
does not prevent the sponsor from providing this information to the
Registration Agency when requested.
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\85\ Public Law 104-191, sec. 1172 (a).
\86\ 45 CFR 160.10.
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Paragraph 30.11(f)
Proposed Sec. 30.11(f) stated that nothing in this section may
relieve the sponsor of its obligation to take affirmative action with
respect to those applicants and apprentices of whose disability the
sponsor has knowledge.
Regarding proposed Sec. 30.11(f), an industry association
requested that the Department provide further clarification of what it
means for the sponsor's ``obligation to take affirmative action with
respect to those applicants and apprentices of whose disability the
sponsor has knowledge.'' The Department included paragraph (f) to
remind sponsors that they are under a continuing obligation to provide
a reasonable accommodation to those individuals with a known
disability, even if the individual chooses not to self-identify and
even if the individual does not specifically request a reasonable
accommodation.
Paragraph 30.11(g)
Proposed Sec. 30.11(g) clarified that nothing in this proposed
section may relieve the sponsor from liability for discrimination in
violation of this part. The Department did not receive any comments on
this specific provision, and so adopts Sec. 30.11(g) as proposed.
Paragraph 30.11(h): Compliance Dates
As discussed above, in response to those comments expressing
concern over the burden associated with complying with the self-
identification requirements of this section, the Department is
extending the time in which both current and new sponsors must come
into compliance with this section. Paragraph (h) sets a compliance date
two years after the effective date of the Final Rule for current
sponsors. This means that the requirement to invite apprentices and
applicants to self-identify will not apply until two years after the
effective date of the Final Rule. Current sponsors will also have up to
two years from the effective date in which to invite each of its
current apprentices to voluntarily inform the sponsor whether the
apprentice believes that he or she is an individual with a disability.
The sponsor would be expected to complete a workforce analysis for
individuals with disabilities pursuant to Sec. 30.7(d)(2) as soon as
it has completed this invitation to current apprentices, as this will
provide some data upon which to base the analysis. Subsequent workforce
analyses will be based on the pre-offer and post-offer self-
identification data, as well as any changes to self-identification
status that have been made as a result of the annual reminder per
paragraph (c) of this section.
New sponsors will follow a similar timetable, but the two years
will be based on the date their program is registered rather than the
effective date of the rule. During the program's provisional review
conducted within one year of registration, the Registration Agency will
provide further guidance on the AAP requirements for individuals with
disabilities so that when the compliance date arrives the new sponsor
is well equipped to take the necessary steps to satisfy its
obligations.
Recordkeeping [Sec. 30.12]
Existing Sec. 30.8 required sponsors to keep records for each
applicant, including a summary of the qualifications of each applicant,
the basis for evaluation and for selection or rejection of each
applicant, the records pertaining to interviews of applicants,
[[Page 92075]]
the original application for each applicant, and other data. The rule
states that records pertaining to individual applicants, selected or
rejected, shall be maintained in such manner as to permit
identification of minority and female (minority and nonminority)
participants. Sponsors were also required, under the existing
regulations, to retain a statement of its AAP required by Sec. 30.4
and review their AAPs annually and update them where necessary,
including the goals and timetables. Sponsors were also required to
maintain evidence that their qualification standards have been
validated in accordance with the requirements set forth in Sec.
30.5(b), and maintain records for 5 years and make them available upon
request to the Department or other authorized representative. The NPRM
proposed to remove the existing Sec. 30.12 entitled ``Adjustments in
schedule for compliance review or complaint processing'' because the
information contained within this section has been incorporated into
the proposed sections addressing EEO compliance reviews and complaints,
and reinsert a new section on recordkeeping in its place.
Proposed Sec. 30.12 prescribed the recordkeeping requirements that
would apply to registered apprenticeship program sponsors, and
concluded that a sponsor's failure to comply with these requirements
would constitute noncompliance with the part 30 regulations. Proposed
Sec. 30.12 retained, in large part, the recordkeeping requirements
currently in Sec. 30.8, subject to basic editing, and updated them to
reflect the development and use of electronic recordkeeping, and the
broadened scope of the proposed rule to provide for equal opportunity,
affirmative action, and nondiscrimination for applicants and
apprentices with disabilities.\87\ Proposed Sec. 30.12, therefore,
included a new provision regarding the confidentiality and use of
medical information that is obtained pursuant to part 30, including
information regarding whether an applicant or apprentice is an
individual with a disability.
---------------------------------------------------------------------------
\87\ OA maintains guidance that provides more explanation on
exactly what documents must be maintained, and how sponsors should
maintain it. See Bulletin 2010-11a Apprenticeship Program Standards
Section XVIII Maintenance of Records and Appendix D, Section VI
Maintenance of Records http://www.doleta.gov/OA/bul10/Bulletin%202010-11%20Revised%20Boilerplates.pdf. (last accessed
September 10, 2015). In addition, OA will provide publicly available
materials in conjunction with this NPRM that will update this
guidance consistent with this proposal.
---------------------------------------------------------------------------
In addition, proposed Sec. 30.12 removed the reference to the
recordkeeping requirements of State Apprenticeship Councils. The
Department proposed to move these requirements to proposed Sec. 30.18,
the section addressing SAAs. This proposed change would ensure that all
requirements specific to SAAs can be found in one location.
Paragraph 30.12(a): General Obligation
Proposed paragraph (a) of Proposed Sec. 30.12 required sponsors to
collect data and maintain records as the Registration Agency finds
necessary to determine whether the sponsor has complied or is complying
with the requirements of this part. Proposed Sec. 30.12(a)(3), in
particular, required the sponsor to collect information relative to the
operation of the apprenticeship program, including, but not limited to,
job assignments in all components of the occupation as required under
Sec. 29.5(b)(3), promotion, demotion, transfer, layoff, termination,
rates of pay, other forms of compensation, conditions of work, hours of
work, hours of training provided, and any other personnel records
relevant to EEO complaints filed with the Registration Agency under
Sec. 30.14 or with other enforcement agencies.
A national union and a national JATC commented that proposed Sec.
30.12(a)(3) includes requirements for a sponsor to retain information
that is inapplicable to the relationship between a JATC and a
registered apprentice, including information related to promotion,
demotion, termination, and layoff. The commenters urged the Department
to revise this section as it applies to JATCs so that only those
records that are applicable to the relationship between a JATC and its
registered apprentices must be maintained. These commenters said that
some of the terms that are inapplicable to JATCs may be applicable for
programs administered solely by one or more employers since employer-
sponsors have direct control over both an apprentice's progression
through a program and advancement on the job. The commenters suggested
that separate recordkeeping requirements for JATCs and employer-
sponsors may be necessary to ensure that employer-sponsors retain
records that are pertinent to both roles.
The Department recognizes the distinction between group sponsors
and their member employers, as well as JATC sponsors' concerns about
their responsibilities and how their duties to the apprentice are
distinct from those of employers. However, the information required in
Sec. 30.12(a)(3) is important to determining the relative success of a
sponsor's AAP. The language in Sec. 30.12(a)(3) provides that sponsors
must collect and maintain records relative to the operation of the
apprenticeship program, and the Department will not require sponsors to
record information that they do not have access to. The Department
anticipates that JATCs will be able to collect this information from
partner employers. We note that similar recordkeeping obligations were
prescribed under the existing regulations and applied to sponsors
generally. As has been detailed before, it is common practice currently
for sponsors and their participating employers to enter into agreements
detailing obligations and seeking the employers' cooperation in the
sponsor's compliance with part 30. We expect that this will continue
under this Final Rule.
An individual commenter suggested that summary information about
gender, ethnicity, and disability status should be available to
interested apprentices and journeyworkers in the relevant trade at no
cost to them, and sought to add new paragraphs under Sec. Sec.
30.12(a) and 30.12(f) seeking this data in a format accessible to
apprentices and journeyworkers. While the information provided on a
chart summarizing demographics of apprenticeship programs may be
useful, the Department does not feel that creating an additional
requirement for apprenticeship programs is necessary at this time. We
note further that publication of this data could raise privacy,
confidentiality, and other legal issues.
Paragraph 30.12(b): Sponsor Identification of Record
Proposed 30.12(b) stated that for any record that the sponsor
maintains pursuant to the regulation, the sponsor must be able to
identify the race, sex, ethnicity, and, when known, the disability
status of each apprentice and supply this information upon request to
the Registration Agency. When possible, the sponsor should identify the
race, sex, ethnicity, and disability status of each applicant and
supply this information upon request to the Registration Agency.
A State Department of Labor and an industry association expressed
concern that current Sec. 29.7(l) appears to be inconsistent with
proposed Sec. 30.12(b) in that Sec. 29.7(l) requires a request for
demographic data while proposed Sec. 30.12(b) requires that sponsors
be able to identify this data. The industry association requested
clarification about how a program should maintain the information about
race, sex, ethnicity, and disability status required in
[[Page 92076]]
proposed Sec. 30.12(b) in cases where the apprentice refuses to
provide the requested information. The industry association said that
the Sec. 30.12(b) language should be amended to clarify that the
sponsor should be required to make a good faith effort to obtain the
described information. A State Department of Labor similarly requested
clarification of Sec. 30.12(b) to ensure that sponsors must identify
the demographics of their apprentices only when it is available.
At the outset, we note that sponsors address this issue already,
because the existing regulations require them to conduct a workforce
analysis establishing the race/sex/ethnicity makeup of its
apprenticeship program in order to determine whether they are
underutilized. To provide greater guidance on how to do so, the NPRM
proposed the language in Sec. 30.12(b), which is identical to that
used in OFCCP's program at 41 CFR 60-1.12(c). This was purposeful, in
order to set forth similar standards across AAPs to the extent
possible, which would likely be more familiar to those in the employer
community. In interpreting its regulation, OFCCP has stated the
following:
[We have] not mandated a particular method of collecting the
information. Self-identification is the most reliable method and
preferred method for compiling information about a person's gender,
race and ethnicity. Contractors are strongly encouraged to rely on
employee self-identification to obtain this information. Visual
observation is an acceptable method for identifying demographic
data, although it may not be reliable in every instance. If self-
identification is not feasible, post-employment records or visual
observation may be used to obtain this information. Contractors
should not guess or assume the gender, race or ethnicity of an
applicant or employee. . . . OFCCP would not hold a contractor
responsible for applicant data when the applicant declines to self-
identify and there are no other acceptable methods of obtaining this
information.\88\
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\88\ http://kb.dol.gov/DOLArticlePage?agency=OFCCP&parentCatValue=Employer&article=ka1i0000000WEq1AAG (last accessed May 9, 2016).
OA interprets the NPRM consistent with this interpretation. It does
not mandate any particular collection method but notes with favor self-
identification, allowing that sponsors may record the data by visual
observation if there is a factual basis for doing so. Further, it will
not hold sponsors responsible when certain documents cannot be
identified by protected category if that information has not been
provided or cannot otherwise be easily ascertained.
An advocacy organization urged the Department to amend the language
at Sec. 30.12(b) to require programs to identify the age of qualified
applicants or apprentices so that patterns of age discrimination can be
detected. We decline to require this. Generally speaking, data
collection is sought in connection with a sponsor's AAP, and the part
30 AAP is limited to race, sex, ethnicity, and disability.
Paragraph 30.12(c): Affirmative Action Programs
Proposed paragraph 30.12 required that sponsors required to develop
and maintain an AAP under Sec. 30.4 must retain that written AAP and
documentation of any efforts required by Sec. 30.8. We note that most
sections of the regulations comprising the AAP obligations have their
own recordkeeping requirements that must be complied with. However, to
ensure a broad overarching recordkeeping obligation, the proposed Sec.
30.12(c) is revised to simply state that the AAP recordkeeping
obligations applies to each of the component parts of the AAP.
Paragraph 30.12(d): Maintenance of Records
Proposed Sec. 30.12(d) decreased the amount of time that sponsors
are required to keep documentation from five to three years. An SWA
suggested that the Department retain the current requirement that
sponsors maintain records for 5 years, reasoning that under the
proposal a sponsor that has a 4-year program would have the ability to
discard an apprenticeship agreement before the apprentice leaves the
program. Alternatively, this commenter suggested that the Department
revise the requirement to retain records to align with the entire
length of the apprenticeship program, which the commenter said is
usually 4 years. An individual commenter recommended that the
Department require records be kept for an additional amount of time
after an apprentice's term has ended so that data is available for
evaluations and tracking a sponsor's progress. The commenter expressed
concern that recordkeeping could be disrupted by personnel changes or
economic changes within a 3-year span and said that this could lead to
incomplete records. In contrast, an industry association remarked that
the amount of time sponsors are required to retain records should be
further reduced to 2 years, reasoning that this would align with other
labor laws already in place. This commenter also suggested that the
rule specify the type of records to be retained.
Upon review of the comments, the Department has decided to revert
to the existing requirement that records be maintained for 5 years.
While the Department sought to decrease the time period for document
retention in an effort to decrease burden, we believe the concerns
raised about a document retention period that is shorter than the
normal compliance review cycle, which is approximately 5 years, would
be problematic, particularly given that under the Final Rule
utilization analyses are to be performed concordant with sponsors'
compliance review cycle and with significant input from the
Registration Agency.
Paragraph 30.12(e): Confidentiality and Use of Medical Information
Proposed Sec. 30.12(e) provided that any information collected
that concerns the medical condition or history of an applicant or
apprentice must be maintained in separate forms and in separate medical
files and treated as confidential, and that such information must not
be used for any purpose inconsistent with part 30.
Some commenters expressed concerns with proposed Sec. 30.12(e). An
industry association suggested that joint apprenticeship programs will
need to develop and implement safeguards to ensure the confidentiality
of medical records. An SAA expressed concern that developing systems to
maintain confidentiality and segregate information regarding self-
identification from the actual hiring process may disproportionately
burden small entities or sponsors that do not have highly-developed
human resource systems or personnel processes. And several commenters
requested further guidance on how to comply with the proposed
requirement.
We addressed many similar concerns in the discussion of Sec.
30.11, above. As stated there, OA plans to provide guidance materials
to sponsors regarding their recordkeeping responsibilities and ensuring
the confidentiality of employee records.
Some commenters said that there is inconsistent terminology used in
part 29 and part 30 to describe advancement of an apprentice through a
program. The commenters remarked that the term ``progression'' is used
in part 29 whereas ``promotion'' is used in part 30. These commenters
also stated that there are discrepancies between the use of the terms
``suspension'' and ``cancellation'' in part 29 and ``demotion'' and
``termination'' in part 30. The commenters remarked that the term
``transfer'' in part 29 means transfer
[[Page 92077]]
from one program to another instead of from one job to another.
The Department has reviewed the language and does not believe
further clarifying regulatory text is necessary. Each of the terms
raised above in part 30 has specific significance in the equal
employment opportunity context distinguishing them from how they or
similar terms are used in part 29. For instance, ``suspension'' and
``cancellation'' in part 29 refer to actions taken against the
apprenticeship program; ``demotion'' and ``termination'' in part 30 are
describing personnel actions taken against an apprentice that could
potentially be discriminatory if based on a protected basis.
Paragraph 30.12(f): Access to Records
Proposed Sec. 30.12(f) set forth the obligations of sponsors to
provide access to records for the purpose of conducting compliance
reviews and investigations of complaints. We received no comments
specific to this section not addressed elsewhere, so we adopt the
proposed paragraph as Sec. 30.12(f) in the Final Rule.
Equal Employment Opportunity Compliance Reviews [Sec. 30.13]
The NPRM sought to clarify exactly what is intended by EEO
compliance reviews, with more specific accountabilities articulated for
the sponsor and for the Registration Agency. Thus, the proposed rule
provided a stand-alone Sec. 30.13 devoted to EEO compliance reviews,
as opposed to the existing regulation's Sec. 30.9 which addressed
compliance reviews of all types. EEO compliance reviews are to be
conducted along with overall program performance reviews. There is
intended to be uniformity in EEO compliance reviews across Registered
Apprenticeship programs and across Registration Agencies. The proposed
rule outlined how compliance reviews would be conducted, how sponsors
would be notified of compliance review findings, how sponsors can come
into compliance if there is a finding of a violation, and when
enforcement actions may occur.
Paragraph 30.13(a): Conduct of Compliance Reviews
In paragraph (a), the proposed rule sets forth that the
Registration Agency would regularly conduct EEO compliance reviews to
determine if the sponsor was in compliance with part 30, and will also
conduct EEO compliance reviews when circumstances so warrant. It
further detailed the variety of forms compliance reviews might take,
including off-site reviews of records, desk audits of records submitted
to the Registration Agency, and on-site reviews at a sponsor's
establishment involving document review and interviews with relevant
personnel.
Commenters expressed concern about what exactly ``regularly'' means
in terms of frequency of conducting reviews and/or audits. There are no
pre-set timelines for compliance reviews, and the review cycle will
vary by the Registration Agency. Historically in states administered by
OA, as a general matter reviews have been conducted approximately every
five years during a program's existence. There is somewhat more
variance in states where apprenticeship is administered by an SAA. One
commenter urged OA, once the regulation is adopted, to disseminate a
circular detailing the minimum requirements for all EEO compliance
reviews and ``audits.'' OA currently has a checklist of questions and
protocols that can be sent to the sponsor before a compliance review.
OA will continue to provide such technical assistance on EEO compliance
reviews, but will take the comment under advisement in considering
further guidance in the implementation of this rule.
Paragraph 30.13(b): Notification of Compliance Review Findings
The proposed rule provided that Registration Agencies would provide
a Notice of Compliance Review Findings within 45 days of completing the
review. If the review uncovered deficiencies in part 30 compliance,
this Notice would identify them, how they could be remedied, the
timeframe for doing such remedying, and specifying that failure to do
so could result in an enforcement action. The overall intent of this
proposed text is that increased specificity would again provide for
greater consistency and standardization of procedures across the
National Registered Apprenticeship System. We did not receive any
specific comments for this provision, so we retain the proposed
language in the Final Rule.
Paragraph 30.13(c): Compliance
The proposed Sec. 30.13(c) set forth the next step in the
compliance review process: When a Notice indicated deficiencies in
compliance, the requirement that a sponsor must, within 30 business
days, implement a compliance action plan. This plan included four
specific provisions: A commitment to correct the deficiency, a listing
of the actions that will be taken, how long it will take, and the name
of the person responsible. Assuming these steps are undertaken, the
sponsor would be considered in compliance.
There were a number of comments regarding this paragraph (c)
proposed text. An SAA commented that the 30 business days for sponsors
to develop an effective plan to address EEO compliance deficiencies did
not provide enough time. This SAA suggested that sponsors should be
given 30 business days to submit rebuttal arguments to the Registration
Agency, and that the SAA should be given 30 days to respond to the
rebuttal argument in writing. If the findings of noncompliance were
upheld after the opportunity to contest allegations, this SAA
recommended that the sponsor would then have 30 days to submit a
remediation plan.
In response to these comments, we have modified the Final Rule in
two ways. First, the Final Rule states that within 30 days the sponsor
must either implement a compliance action or provide a written response
responding to the specific violation(s) cited by the Registration
Agency within 30 days. This latter option addresses commenters'
suggestions for an opportunity to respond to allegations. If, after
reviewing the response, the Registration Agency upholds the findings of
noncompliance, the sponsor then has 30 days to submit a remediation
plan. Second, the Final Rule provides that the 30 day period may be
extended for another 30 days by the Registration Agency for good cause
shown. We note that this only applies to the original 30 day period; if
the sponsor submits a rebuttal which the Registration Agency then
denies, the Rule does not provide for an extension of the resulting 30
day period to come into compliance.
One advocacy organizational commenter suggested that sponsors in
need of a compliance action plan should be provided with technical
assistance to help rectify the situation: Specifically, a list of
reliable technical assistance providers, as well as resources and
materials to include in the design, development, and implementation of
the compliance action plan (for example, resources developed via the
Women in Apprenticeship and Nontraditional Occupations program). In
particular, for sponsors falling short of EEO goals, this commenter
recommended that the DOL provide a list of tradeswomen organizations
for purposes of technical assistance. This type of technical assistance
is already a part of Registration Agencies' compliance review process;
we will continue to provide this assistance, as resources permit, to
assist in bringing sponsors into EEO compliance.
Several advocacy organizations commented that sponsors found to
have
[[Page 92078]]
deficiencies need more attention and resources devoted to rectifying
their situations, either through more rigorous EEO obligations or
having compliance results published in a national registry for
additional visibility. Some commenters went specifically further and
suggested that the DOL should require the Registration Agency to
evaluate a sponsor's compliance action plan for effectiveness
``regularly'' until the sponsor attains the plan goals. The Department
acknowledges the comment, but declines to add these measures at this
time. We believe the enhancements announced in this Final Rule will
increase the efficacy of sponsor EEO and affirmative action efforts.
Further, the Registration Agency's focus historically has been on a
technical assistance model, helping sponsors succeed and come into
compliance wherever possible, rather than a more punitive approach. We
do note that for programs that will not take corrective action to cure
violations, the Registration Agency retains the authority to deregister
such programs.
Some commenters suggested that the Department include completion
rates as a factor when evaluating whether a sponsor is making a good
faith effort to comply with part 30 requirements, reasoning that
completion rates are an important benchmark in assessing economic
advancement of groups traditionally underrepresented in registered
apprenticeship programs. As discussed in Sec. 30.8 above, the
Department recognizes the importance of retention activities in
building greater diversity within apprenticeship programs, and has
included some options for addressing retention issues in Sec. 30.8(b).
Paragraph 30.13(d): Enforcement Actions
Proposed Sec. 30.13(d) specified that any sponsor that fails to
implement its compliance action plan within the specified timeframes
may be subject to an enforcement action under proposed Sec. 30.15. One
commenter suggested that the word ``may be subject'' be replaced by
``must be subject,'' to help underscore the need to enforce the
regulation. The Department has reviewed the comment and declines to
adopt the suggestion, as it would be inconsistent with current practice
and eliminate certain flexibilities that may be helpful in a given
matter.
Complaints [Sec. 30.14]
The Department proposed moving the existing Sec. 30.14 entitled
``Reinstatement of program registration'' to Sec. 30.16. In its place,
the NPRM proposed a section devoted to complaint processing and
handling, borrowed in part from the existing Sec. 30.11, with
additional revisions to improve readability and clarify requirements of
program sponsors and Registration Agencies for addressing complaints.
For instance, proposed Sec. 30.14 incorporated subheadings so that an
apprentice or applicant for apprenticeship who wishes to file a
complaint of discrimination under this part with a Registration Agency
may easily identify the required components. Proposed Sec. 30.14
deleted the provisions concerning private review bodies in the current
part 30, at Sec. 30.11(a) and (b). Through feedback received prior to
the publication of the NPRM from the SAAs, stakeholders at the town
hall meetings, and the administration of the National Registered
Apprenticeship System, the Department has found that apprenticeship
program sponsors generally do not have or use private review bodies.
Additionally, stakeholders expressed the opinions that such bodies
could not objectively evaluate or prescribe remedies for complaints of
discrimination. Thus, the proposed rule eliminated the use of private
review bodies.
Paragraph 30.14(a): Requirements for Individuals Filing Complaints
Proposed Sec. 30.14(a)(1) through (3) describe who has standing to
file a complaint, the time period for filing a complaint, and the
required contents of the complaint.
Relating to the proposed Sec. 30.14(a) requirements for
individuals filing complaints, a number of comments suggested ways to
broaden the procedure for filing complaints in order to increase its
potential as an avenue of protecting the rights of apprentices. One
commenter made the suggestion to allow journeyworkers or higher status
workers to file complaints on behalf of apprentices, as it was believed
that apprentices are not well positioned in the workplace hierarchy to
file a complaint without fear of risking their job or personal safety.
Similarly, another urged the ability to file anonymous complaints. Many
commenters recommended that the Department establish opportunities for
third party complaints from stakeholder organizations (i.e., pre-
apprenticeship programs and other referral agencies) challenging
policies or practices that result in exclusionary outcomes for
apprentices and provide suggested remedial actions. Finally, a
commenter suggested a number of suggested changes to complaint
procedures, including required onsite diversity and compliance staff
who are able to communicate with apprentices, gather feedback, identify
areas of concern, and ultimately refer repeat offenders for training or
additional counseling; dual-path complaint options so complaints are
forwarded to a neutral party (to address situations in which the
Registration Agency may not be perceived as neutral); and expansion of
the complaint procedure window to 300 days (in line with EEOC
regulations when a State law prohibits the discrimination on the same
basis).
The Department recognizes that its primary objective is to
safeguard the welfare of apprentices, and wishes to have as robust and
effective a complaint procedure in order to effectuate the protections
of this part. With regard to third-party complaints, either by higher
ranking employees or stakeholder groups, we believe the NPRM already
provided such mechanisms. The proposed rule allowed for individual
complaints filed ``through an authorized representative;'' these
parties could satisfy that role. Further, the proposed regulations in
Sec. 30.13 provide that the Registration Agency ``will also conduct
EEO compliance review when circumstances so warrant.'' If the
Registration Agency receives specific evidence from a third party that
a violation of part 30 has occurred, that could be a circumstance
warranting such a compliance review. With regard to the question of
anonymous complaints, the regulations are clear that, at least at some
juncture prior to perfecting a complaint, the identity of the
complainant must be made known to the Registration Agency so that it
can furnish relief to the appropriate person(s). We finally note that,
assuming the sponsor or employer that has discriminated is covered by
EEOC's jurisdiction, apprentices may file complaints directly with the
EEOC if they so choose. These entities are required to post ``EEO is
the Law'' posters in their workplace which would provide information on
how to file complaints with the EEOC. To clarify this, we have updated
the language in the notice poster to indicate that apprentices may also
file complaints with Federal, state, and local agencies assuming they
have jurisdiction to review the sponsor and/or employer.
As for the filing period, we agree with the comment and extend the
filing period to 300 days. As the commenter notes, this matches the
statute of limitations for filing with the EEOC in all but the few
``non-deferral'' states that do not have their own State employment
discrimination law.
[[Page 92079]]
In order to further effectuate the complaint process, the
Department plans to issue guidance that sponsors can use to inform
apprentices about their rights and the process for filing complaints in
the course of the periodic orientation sessions set forth in Sec.
30.3(b)(2)(iii).
The Final Rule retains Sec. 30.14(a) as proposed with one
revision--Sec. 30.14(a)(1) of the Final rule specifically lists
retaliation as a basis on which individuals may file complaints.
Retaliation was specifically prohibited in the proposed Sec. 30.17,
but it was inadvertently omitted as a basis upon which individuals
could file complaints.
Paragraph 30.14(b): Requirements of Sponsors Relating to Complaints
Proposed Sec. 30.14(b) requires sponsors to provide notice to all
applicants for apprenticeship and apprentices of their right to file a
discrimination complaint with the Registration Agency and the
procedures for doing so. Proposed Sec. 30.14(b) also specifies the
required wording for this notice. A sponsor may combine this notice and
its equal opportunity pledge in a single posting for the purposes of
this proposed section and proposed Sec. 30.3(b)(2)(ii). The Department
received no comments specific to this section not addressed elsewhere,
and thus retains the paragraph in the Final Rule as proposed.
Paragraph 30.14(c): Requirements of the Registration Agency Relating to
Complaints
Also, in an effort to ensure consistency in how Registration
Agencies process complaints and conduct investigations, proposed Sec.
30.14(c) would add uniform procedures that Registration Agencies must
follow. These uniform procedures would ensure that the Registration
Agency acknowledges and thoroughly investigates complaints in a timely
manner, parties are notified of the Registration Agency's findings, and
the Registration Agency attempts to resolve complaints quickly through
voluntary compliance.
Proposed Sec. 30.14(c)(3) provides that a Registration Agency may,
at any time, refer a complaint to an appropriate EEO enforcement
agency. This provision would allow Registration Agencies to safeguard
the welfare of apprentices by making use of existing Federal and State
resources and authority. For example, a Registration Agency might refer
a complaint to the EEOC if it finds a violation of title VII, the ADA,
or the ADEA, but does not think it could achieve a complete remedy for
the complainant through voluntary compliance procedures or enforcement
action under proposed Sec. 30.15.
Proposed Sec. 30.14(c)(4) would allow an SAA to adopt different
complaint procedures, but only if it submits the proposed procedures to
OA and receives OA's approval. This provision would codify the
Department's current practice and would be consistent with Sec.
29.12(f) of this title.
An SWA requested clarification as to whether the failure of SAAs to
meet deadlines under Sec. 30.14(c)(1) for conducting and reporting an
investigation would lead to the sponsor being absolved. The commenter
expressed concern that some complaints are impossible to analyze or
resolve in the mandated time frame. Regarding the proposed Sec.
30.14(c)(2) directive that, when a complaint investigation indicates a
violation of nondiscrimination requirements, a ``Registration Agency
must resolve the matter quickly and informally whenever possible,''
this commenter requested clarification as to what it would mean to
resolve a complaint informally. The Department agrees with this
comment, noting that some complaints, depending on the facts and
various other circumstances, may take longer to complete than the time
proposed in the NPRM. Accordingly, paragraph 30.14(c) is revised to
redact the specific timetables for Registration Agency completion of
the various steps, and instead includes language similar to that
suggested by the commenter that Registration Agencies will conduct its
investigation as expeditiously as possible. Additionally, the Final
Rule revises 30.14(c)(2) to state that Registration Agencies ``should''
attempt to resolve matters ``at the Registration Agency level'' and
quickly whenever ``appropriate,'' rather than ``must'' resolve them
``informally'' and when ``possible,'' respectively. This is meant to
communicate three things: First, that informal resolution of some
matters, such as those raising particularly egregious violations, may
not be appropriate; second, that the term ``informally'' can be
interpreted in ways other than intended, which was to signify before
referral to a federal or state equal opportunity agency; and third, for
those matters where Registration Agency-level resolution may be
appropriate, a quick resolution is desirable but not at the expense of
arriving at one that effectively addresses the underlying problem.
Toward that end, Registration Agencies should pursue resolutions that
not only attempt to remedy the individual complainant, but those that
include broader programmatic relief--such as trainings, information
sessions, or other modifications to personnel policies and practices--
that would prevent the issue from recurring when appropriate.
A State Department of Labor expressed support for allowing
Registration Agencies to maintain complaint review procedures that are
already in place. This Registration Agency said that it currently
requires discrimination complaints be referred for review by the State
Division of Human Rights or a private review body established by a
sponsor, and requested clarification as to whether or not it could
continue to do so by having its complaint review procedure approved by
the Administrator if it is not already permitted by the proposed rule
at Sec. 30.14(c)(3) without such approval. More broadly, this
commenter remarked that the expertise in anti-discrimination laws and
regulations necessary for ensuring compliance with the Sec. 30.3
requirements is beyond the scope of a Registration Agency's role. The
agency suggested that States should defer to EEO experts and provide
assistance as a referral body to the proper regulating agency. In
addition, the commenter warned that requiring Registration Agencies to
assume responsibility for enforcement of laws and regulations already
enforced by other entities would be duplicative and not cost-effective.
This commenter recommended that the Department clarify or revise the
regulation to permit complaints of discrimination filed with a
Registration Agency to be referred to the proper oversight agency with
jurisdiction over the complaint area.
To address these issues, the Final Rule builds in flexibility to
adopt complaint review procedures for discrimination complaints,
provided that they are approved by the Administrator, and the rule also
allows the Registration Agency the discretion to refer matters to other
agencies, including the EEOC or State Fair Employment Practices Agency,
that may be more appropriate for a given case. Accordingly, we believe
the rule offers sufficient flexibility as proposed and we retain it as
written in the Final Rule.
Finally, an individual commenter recommended that each
apprenticeship Registration Agency should have a designated contact
person to handle discrimination complaints related to hiring and
training, asserting that this is a normal function in other education
and employment entities. We note that the NPRM included a requirement
that the notice of rights ``must include the address, phone number, and
other contact information for the Registration
[[Page 92080]]
Agency that will receive and investigate complaints filed under this
part,'' and this is retained in the Final Rule.
Enforcement Actions [Sec. 30.15]
The Department proposed to revise current Sec. 30.15 entitled
``State Apprenticeship Councils'' by moving that language to Sec.
30.18 and incorporating provisions similar to those in the existing
Sec. 30.13, entitled ``Sanctions,'' into the proposed Sec. 30.15. The
existing Sec. 30.13 stated that when the Department has reasonable
cause to believe that an apprenticeship program is not operating in
accordance with part 30, and where the sponsor fails to voluntarily
take corrective action, the Department will initiate deregistration
proceedings or refer the matter to the EEOC or the United States
Attorney General with a recommendation for initiation of a court
action. The rest of the section describes the procedures for
deregistration proceedings.
In the NPRM, the Department proposed to change the title of Sec.
30.15, to ``Enforcement actions,'' in order to demonstrate the
Department's emphasis on enforcing regulations governing discrimination
in apprenticeship. Second, we proposed to replace ``Department,'' as
used throughout this section, with the term ``Registration Agency'' to
clarify that both the Department (more specifically, OA) and SAAs have
the authority to take enforcement action against a non-complying
sponsor. Third, proposed Sec. 30.15(b) introduced a new enforcement
procedure in which a Registration Agency would suspend registration of
new apprentices until the sponsor has achieved compliance with part 30
through the completion of a compliance action plan or until a final
order is issued in formal deregistration proceedings. Suspension
pursuant to proposed Sec. 30.15(b) was intended as a temporary,
remedial measure to spur return to compliance with the proposed part 30
regulations; it was not intended to be punitive. If a sponsor had not
taken the necessary corrective action within 30 days of receiving
notice of suspension, the Registration Agency would initiate de-
registration proceedings as provided in part 29. Fourth, proposed Sec.
30.15(c) would adopt the deregistration procedures of Sec. Sec.
29.8(b)(5) through (8) of this title, including the hearing procedures
in Sec. 29.10, for consistency and simplicity. And finally, proposed
Sec. 30.15(d) would authorize Registration Agencies to refer a matter
involving a potential violation of equal opportunity laws to
appropriate Federal or State EEO agencies.
Many commenters were concerned about punitive actions being taken
against sponsors without the Registration Agency having explicitly
defined criteria about how the judgment would be made or laying out the
exact penalty structure. The continuum of technical assistance to
punitive action was a source of concern and confusion for at least one
commenter.
There were a significant number of comments regarding the
Registration Agency's ability to ``suspend the sponsor's right to
register new apprentices'' in Sec. 30.15(b). Construction industry
related entities (union and non-union) were particularly interested in
this text. Although there was some commenter support for the ``proposal
to allow temporary suspension rather than program cancellations in the
event of a violation,'' other commenters expressed concern that the
language could result in ``damage'' to Registered Apprenticeship
training programs because of the Registration Agency suspension
ability. Due process concerns, particularly related to apprentice
suspension, were raised by a number of commenters. For example, some
national unions noted that this proposed sanction is inconsistent with
part 29, which only mentions deregistration as a sanction, not
suspension of apprentices. Union commenters wanted to make clear that
due process rights, including notice, hearing, and a written decision
by the Secretary of Labor, must be afforded to a sponsor. There was
also concern that the proposal contained ``no durational limit'' on the
suspensions, with a commenter conclusion that ``adoption of
administrative hearing procedures such as those used in deregistration
would address the issues discussed.''
As stated at the outset, the option of suspending a sponsor's right
to register new apprentices was not intended as a punitive measure, but
rather as an intermediate step that Registration Agencies could take in
an attempt to persuade sponsors to remedy violations of part 30 before
taking the ultimate action to deregister the program. The proposed
suspension afforded sponsors notice, in that it required a written
notification from the Registration Agency of the specific violation(s)
and allowed 30 days for the sponsor to address the violation before any
action would be taken. It was also limited in duration; if the sponsor
did not address the violation within 30 days of the suspension, the
suspension would end with the initiation of formal deregistration
proceedings, where a hearing is afforded. In order to further address
the comments raised, however, the Final Rule includes additional steps
wherein, upon being notified of a violation, rather than requiring
compliance within 30 days, the sponsor may submit a response to the
notice of violation within 30 days which the Registration Agency will
consider. If the Registration Agency upholds its initial determination,
the sponsor has 30 days from notification of this decision to implement
a compliance plan, or suspension proceedings may ensue. This
opportunity to respond, in conjunction with the notice of violation and
the limited duration of the suspension, affords adequate process rights
to sponsors. Moreover, if the Registration Agency does not institute
proceedings to deregister the suspended program within 45 days of the
start of the suspension, the suspension is then lifted. The Department
emphasizes, though, that a Registration Agency will work with all
program sponsors prior to instituting any deregistration proceedings to
offer technical assistance and attempt to bring the sponsor into
compliance. This process will involve active communication between the
sponsor and the Registration Agency, and a sponsor that disagrees with
the Registration Agency's findings regarding its compliance should
bring that to the Registration Agency's attention. The Department
reiterates that enforcement is a last resort for non-complying
sponsors.
Finally, several national unions warned about difficulty in
enforcement due to a ``lack of clarity as to scope and applications of
duties of the program sponsor to other entities it owns and controls
and to subcontractors,'' a particular concern expected in the
construction industry. These commenters want to see consistency in
enforcement activity with that of the OFCCP in order to ensure a
``consistent regulatory scheme,'' regardless of whether a sponsor is
operating under Federal contracting regulations or under the Registered
Apprenticeship affirmative action regulations. This issue has been
addressed in previous sections; the sponsor is ultimately responsible
for maintaining an apprenticeship program that complies with part 30,
which has historically included agreements between the sponsor and
participating employers to ensure that all elements of the
apprenticeship program are operating in accordance with these
regulations.
Reinstatement of Program Registration [Sec. 30.16]
The NPRM removed the existing Sec. 30.16, entitled ``Hearings.''
As explained earlier in the preamble, the
[[Page 92081]]
Department proposes to incorporate the part 29 procedures for hearings
into part 30, so that a sponsor need only follow one set of procedures
regardless of whether the issue at hand addresses the labor standards
set forth in part 29 or the equal opportunity standards set forth in
part 30. The existing Sec. 30.14 stated that any apprenticeship
program that had been deregistered pursuant to part 30 may be
reinstated by the Secretary, upon presentation of adequate evidence
that the program is operating in accordance with part 30. Proposed
Sec. 30.16 was revised to align with part 29, which provides that
requests for reinstatement must be filed with and decided by the
Registration Agency.
These proposed revisions, which are consistent with Sec. Sec.
29.8, 29.9, 29.10 and 29.13 of this title, implement Secretary's Order
1-2002, 67 FR 64272, Oct. 17, 2002. Accordingly, the proposal provides
that requests for reinstatement must be filed with and decided by the
Registration Agency. The Department received no comments associated
with this issue.
Intimidation and Retaliation Prohibited [Sec. 30.17]
The existing Sec. 30.17 stated that a sponsor must not intimidate,
threaten, coerce, or retaliate against any person for the purpose of
interfering with any right or privilege secured by title VII or
Executive Order 11246. Proposed Sec. 30.17 revised this language to
state that sponsors would be prohibited from intimidating or
retaliating against any individual because he or she has opposed a
practice prohibited by this part or any other Federal or State equal
opportunity law or participated in any manner in any investigation,
compliance review, proceeding, or hearing under part 30 or any Federal
or State equal opportunity law.
An advocacy organization recommended that the Department include
measures that would protect from retaliation those who help educate
fellow program participants about the regulations and those who bring
forward complaints or concerns.
The proposed language in Sec. 30.17 prohibited discrimination and
retaliation against ``any individual'' who files a complaint or opposes
a practice prohibited by this regulation, and this language is retained
in the Final Rule. This includes program participants and anyone else
who brings forward complaints or concerns. As for specific scenarios
that raise the question of whether protected activity has been
undertaken such as the one proposed, we note that it is often a fact-
based inquiry and we will follow relevant title VII case law and
interpretative guidance in analyzing such claims. The Final Rule does
revise slightly paragraphs (a) and (b) to clarify the intent that it is
unlawful for a participant to be retaliated against by anyone connected
with the apprenticeship program.
State Apprenticeship Agencies [Sec. 30.18]
In the NPRM, the Department proposed to revise the existing Sec.
30.18 entitled ``Nondiscrimination,'' which stated that the commitments
contained in a sponsor's AAP must not be used to discriminate against
an apprentice or applicant for apprenticeship on the basis of race,
color, religion, national origin, and sex, and to incorporate those
revisions into proposed Sec. 30.4, as discussed earlier in the
preamble.
Proposed Sec. 30.18 revised current Sec. 30.15, which requires
State Apprenticeship Councils to adopt State plans. These proposed
revisions were necessary to make proposed part 30 consistent with the
part 29 procedures for recognition of SAAs. Proposed Sec. 30.18
differed significantly from the current Sec. 30.15, because proposed
Sec. 30.18 did not include State Apprenticeship Councils as entities
eligible for recognition. As provided in Sec. 29.13 of this title, the
Department will only recognize an SAA that complies with the specified
requirements, granting that Agency authority to register apprenticeship
programs and apprentices for Federal purposes. Therefore, proposed
Sec. 30.18 would delete references to ``State Apprenticeship
Councils'' as the entities required to submit a State EEO plan and the
entities eligible for recognition, and replace it with the appropriate
term, ``State Apprenticeship Agency.''
A company commented that SAAs are underfunded and understaffed, and
asserted that the burden of the proposed Sec. 30.18 requirements would
make it difficult to achieve the goal President Obama has set for
apprenticeships.
In promulgating this Final Rule, the Department carefully
considered balancing the interests of state agencies, sponsors, and
apprentices, and the Department's need to implement these regulations
in an efficient and effective manner. The Department believes that the
standards it is establishing in this rulemaking for SAAs will not limit
the growth of apprenticeship programs or create a significant burden
for sponsors and state agencies.
Paragraph 30.18(a): State Plan
Proposed Sec. 30.18(a) set forth requirements for a State EEO
plan. The proposed rule would require, within one year of the effective
date of the Final Rule, with no extensions permitted, that SAAs provide
to OA a State EEO plan that includes the State apprenticeship law that
corresponds to the requirements of this part and requires all
apprenticeship programs registered with the State for Federal purposes
to comply with the requirements of the State's EEO Plan within 180 days
from the date that OA provides written approval of the State EEO plan.
The Department's determination of compliance with this part is separate
from submission of the State EEO plan. Therefore, proposed Sec.
30.18(a) also specified a collaborative, iterative process whereby SAAs
seeking recognition can achieve conformity with this part. Proposed
Sec. 30.18(a) also would provide clarity regarding requirements for
demonstration of conformity, while maintaining flexibility to
accommodate the unique circumstances of a particular SAA.
A State Department of Labor said that it would be unreasonable to
require SAAs to submit a State EEO plan and a copy of the State's
statute within one year from the effective date of the final
regulation. Asserting that implementation of the regulation would take
well over a year to pass through State legislation, the Administrative
Process Act, and internal agency review, the State suggested that the
Department grant SAAs three years to submit a State EEO plan. Another
State Department of Labor echoed the concern that one year would be an
insufficient amount of time to complete the review process and
requested that SAAs be given two years to submit their plan.
Regarding the proposed Sec. 30.18(a)(1)(i) requirement that the
State EEO plan submitted to OA include a copy of the State
apprenticeship law that corresponds to the requirements of part 30, an
SWA asked the Department to clarify if this means the SAA must submit
proposed draft State regulations before rule finalization.
As for the proposed Sec. 30.18(a)(1)(ii) requirement that the
State EEO plan must require all registered apprenticeship programs in
the State to comply with the requirements of the State's EEO plan
within 180 days of OA approval, an industry association and an SWA said
this was not enough time, reasoning that the State would need to host a
series of town hall meetings to explain the new regulations to
stakeholders and provide other technical assistance to sponsors.
Instead, the SWA recommended that registered apprenticeship programs
have two years to come into compliance with the new State EEO plan, and
the
[[Page 92082]]
industry association said the timeline should be extended to one year
from the date of OA State EEO plan approval.
The Department has carefully considered SAA's needs in accordance
with the proposed regulations and has determined to amend this clause
to require that, within one year, SAAs provide to OA a State EEO plan
that includes, at a minimum, draft State apprenticeship authorizing
language--which, depending on the State, could be either legislation,
regulation, or executive order--corresponding to the requirements of
this part. The Final Rule further requires all apprenticeship programs
registered with the State for Federal purposes to comply with the
requirements of the State's EEO Plan, within 180 days from the date
that OA provides written approval of the State EEO plan. The State may
request an extension from OA to the one-year State's EEO Plan
requirement, which the Administrator may grant for good cause shown.
The Department believes that one year, with the opportunity for
extension if there is good cause, is a reasonable amount of time to
develop an EEO plan. The Department has also determined that 180 days
is an adequate amount of time for registered apprenticeship programs to
comply with the requirements of the State's EEO plan. The Department's
intent is to have SAAs come into compliance with these regulations as
quickly as possible. We understand there may be logistical difficulties
with this in certain circumstances, which we believe the extension
request provision addresses.
Paragraph 30.18(b): Recordkeeping Requirements
Proposed Sec. 30.18(b) carried forward existing recordkeeping
requirements from the existing Sec. 30.8(d), using the term ``State
Apprenticeship Agency'' instead of ``State Apprenticeship Council.''
Regarding the proposed Sec. 30.18(b) requirement that SAAs must keep
all compliance records for three years from the date of creation, an
individual commenter said that maintaining records on compliance
reviews and complaints for five to 10 years would place SAAs in a
``better position to monitor the impact of technical assistance over
the course of an apprenticeship cohort's procession through an
apprenticeship cycle as well as identify sponsors that exhibit patterns
of stagnation in progress toward goals and/or repeated complaints.''
The Department considered this suggestion and determined that it
will amend the proposed rule to require SAAs to keep all compliance
records for five years, for consistency across program regulations.
Paragraph 30.18(c): Retention of Authority
Proposed Sec. 30.18(c) also carried forward provisions in Sec.
30.15(a)(4), which state that OA retains full authority to conduct EEO
compliance reviews of apprenticeship programs, investigate complaints,
deregister for Federal purposes an apprenticeship program registered
with a recognized SAA, and refer any matter pertaining to these EEO
compliance reviews or these complaints to the EEOC, the U.S. Attorney
General, or the Department's OFCCP. In addition, proposed Sec.
30.18(c) clarified that OA retains authority to conduct complaint
investigations to determine whether any program sponsor registered for
Federal purposes is operating in accordance with this part.
An SAA sought to confirm that the OA authority to conduct
compliance reviews and complaint investigations only applies to
programs registered for Federal purposes and not to programs that are
not Federally registered or do not implicate Federal purposes. In
response, we clarify that, in SAA states the Office of Apprenticeship
will only conduct compliance reviews and complaint investigations on
national programs that are registered with the Federal government, such
as federal prisons or military bases.
Paragraph 30.18(d): Deregistration
Proposed Sec. 30.18(d) clarified that SAAs will be subject to the
derecognition procedures established in Sec. 29.14 of this title, for
failure to comply with the requirements of this part.
A SWA remarked that the rule seems to prevent the decertification
of SAAs for failure to enforce EEO. The commenter stated that although
proposed Sec. 30.18(a)(3) and (d) reference Sec. 29.14 deregistration
proceedings, Sec. 29.14 attributes that authority to parts 29 and 30,
which would no longer provide that authority.
Section 29.14 is entitled ``Derecognition of State Apprenticeship
Agencies'' and states that ``The recognition for Federal purposes of a
State Apprenticeship Agency may be withdrawn for the failure to
fulfill, or operate in conformity with, the requirements of parts 29
and 30.'' Furthermore, that section provides that ``derecognition
proceedings for reasonable cause will be instituted in accordance with
the following: (a) Derecognition proceedings for failure to adopt or
properly enforce a State Plan for Equal Employment Opportunity in
Apprenticeship must be processed in accordance with the procedures
prescribed in this part.'' Accordingly, we disagree with the comment,
and believe that Sec. 29.14 provides the Department with the authority
to undertake derecognition for failure to comply with Sec. 30.18.
Exemptions [Sec. 30.19]
Section 30.19 of the existing rule addresses exemptions. Under the
existing Sec. 30.19, a sponsor may submit a written request to the
Secretary for an exemption from part 30, or any part thereof, and such
a request may be granted by the Secretary for good cause. State
Apprenticeship Councils are required to notify the Department of any
such exemptions granted that affect a substantial number of employers
and the reasons therefore.
The Department proposed minor revisions to this section. First,
proposed Sec. 30.19 required that requests for exemption be submitted
to the Administrator, rather than the Secretary, to reflect a shift in
Departmental decision-making. Second, proposed Sec. 30.19 required
that SAAs, not State Apprenticeship Councils, request and receive
approval from the Administrator to grant an exemption from these
regulations. As discussed above, State Apprenticeship Councils are not
eligible for recognition under Sec. 29.13 of this title. This proposed
regulatory requirement is to ensure consistency with respect to when
exemptions may be granted.
Under proposed Sec. 30.19, a sponsor may submit a written request
to the Registration Agency for exemption from part 30, or any part
thereof, and such a request may be granted by the Registration Agency
for good cause. A company inquired as to why the proposed part 30 did
not include an exclusion for organizations that are already in
compliance with EEO rules, as exists in the old part 30. The Final Rule
does include such an exemption, at Sec. 30.4(d)(2).
Effective Date [Sec. 30.20]
The proposed rule created a new Sec. 30.20 that established the
dates by which sponsors needed to come into compliance with certain
provisions in the regulations. The Final Rule removes this section and
instead incorporates the compliance dates in the individual sections to
which they apply. Discussion of the comments on the compliance dates
provided is therefore found in each of these sections, above.
[[Page 92083]]
Proposed Amendments to Part 29 Regulations, Labor Standards for
Registration of Apprenticeship Programs
The part 29 regulations governing Labor Standards for Registration
of Apprenticeship Programs include references to sections in part 30
that are changed through this proposed rule. This NPRM proposed
technical, non-substantive changes for consistency and conformity with
the proposed changes to part 30. We received no comments on these
changes that have not been addressed in other sections of this
preamble, so we adopt the proposed language changes to part 29 as
proposed.
Regulatory Procedures
Executive Orders 12866 and 13563: Regulatory Planning and Review
Executive Order 13563 directs agencies to propose or adopt a
regulation only upon a reasoned determination that its benefits justify
its costs; tailor the regulation to impose the least burden on society,
consistent with achieving the regulatory objectives; and in choosing
among alternative regulatory approaches, select those approaches that
maximize net benefits. Executive Order 13563 recognizes that some
benefits are difficult to quantify and provides that, where appropriate
and permitted by law, agencies may consider and discuss qualitatively
values that are difficult or impossible to quantify, including equity,
human dignity, fairness, and distributive impacts.
Under Executive Order 12866, the Office of Information and
Regulatory Affairs must determine whether this regulatory action is
``significant'' and, therefore, subject to the requirements of the
Executive Order and subject to review by the Office of Management and
Budget (OMB). Section 3(f) of Executive Order 12866 defines a
``significant regulatory action'' as an action likely to result in a
rule that may: (1) Have an annual effect on the economy of $100 million
or more, or adversely affect a sector of the economy, productivity,
competition, jobs, the environment, public health or safety, or State,
local or Tribal governments, or communities in a material way (also
referred to as an ``economically significant'' rule); (2) create
serious inconsistency or otherwise interfere with an action taken or
planned by another agency; (3) materially alter the budgetary impacts
of entitlement grants, user fees, or loan programs or the rights and
obligations of recipients thereof; or (4) raise novel legal or policy
issues arising out of legal mandates, the President's priorities, or
the principles set forth in the Executive Order.
The Office of Management and Budget has determined that the Final
Rule is not an economically significant regulatory action under
paragraph 3(f)(1) of Executive Order 12866. This rulemaking is not
expected to adversely affect the economy or any sector thereof,
productivity, competition, jobs, the environment, or public health or
safety in a material way. In fact, the Final Rule is expected to
increase the effectiveness and efficiency of EEO compliance within
apprenticeship programs and to reduce the burden imposed on sponsors in
several respects. It has, however, been determined that the Final Rule
is a significant regulatory action under paragraph 3(f)(4) of the
Executive Order and, accordingly, OMB has reviewed the Final Rule.
1. Need for Regulation
As explained in the preamble, the Department is updating the equal
opportunity regulations that implement the National Apprenticeship Act
of 1937. The existing regulations set forth at 29 CFR part 30 prohibit
discrimination in registered apprenticeship on the basis of race,
color, religion, national origin, and sex, and require that sponsors
take affirmative action to provide equal opportunity in such programs.
The Final Rule updates the part 30 regulations by including age (40 or
older), genetic information, sexual orientation, and disability among
the list of protected bases upon which a sponsor must not discriminate,
and by detailing mandatory actions a sponsor must take to satisfy its
affirmative action obligations.
In part, the Department is making this update so that the part 30
regulations align with 2008 revisions made to the Department's other
set of regulations governing the National Registered Apprenticeship
System at part 29. In addition, the part 30 regulations have not been
amended since 1978 and EEO law has evolved since that time. The changes
in the Final Rule will ensure that the National Registered
Apprenticeship System is consistent and in alignment with EEO laws as
they have developed over the past 30 years, as discussed in Section I
of the Final Rule, and to ensure that apprentices and applicants for
apprenticeship receive equal opportunity in apprenticeship programs.
The Department is concerned that many segments of society continue
to face substantial barriers to equal opportunity in apprenticeship.
Accordingly, a principal goal for the Final Rule is to strengthen the
EEO for the National Registered Apprenticeship System, and improve the
effectiveness of an apprenticeship program sponsor's required
affirmative action efforts, as well as improve sponsors' compliance
with part 30. To achieve this goal, the Department is making several
changes to part 30, including:
(1) Updating the equal opportunity standards to include age (40 or
older), genetic information, sexual orientation, and disability to the
list of protected bases upon which sponsors of registered
apprenticeship programs must not discriminate;
(2) Requiring all sponsors, regardless of size, to take certain
affirmative steps to provide equal opportunity in apprenticeship;
(3) Streamlining the utilization analysis required of sponsors with
five or more apprentices to determine whether any barriers to
apprenticeship exist for individuals based on race, sex, or ethnicity,
and clarifying when and how utilization goals are to be established;
(4) Requiring targeted outreach, recruitment, and retention
activities when underutilization of certain protected groups have been
found and a utilization goal has been established per Sec. 30.6 and/or
where a sponsor has determined pursuant to Sec. 30.7(e) that
impediments to equal opportunity exist for individuals with
disabilities;
(5) Simplifying procedures for selecting apprentices;
(6) Standardizing procedures Registration Agencies \89\ must follow
for conducting compliance reviews;
---------------------------------------------------------------------------
\89\ As explained in Section I of the Final Rule, part 29
prescribes procedures concerning the recognition of State
Apprenticeship Agencies as Registration Agencies that can then
register, cancel, and deregister apprenticeship programs within that
State with the same authority as the Department and in accordance
with the policies and procedures in part 29.
---------------------------------------------------------------------------
(7) Clarifying requirements of program sponsors and Registration
Agencies for addressing complaints;
(8) Aligning more closely with 29 CFR part 29 procedures for
deregistration of SAAs, derecognition of apprenticeship programs and
hearings; and
(9) Requiring an invitation to self-identify as an individual with
a disability.
These provisions will help to ensure that all individuals,
including women, minorities, and individuals with disabilities, are
afforded equal opportunity in registered apprenticeship programs.
Moreover, the addition of age (40 or older), genetic information,
sexual orientation, and disability to the
[[Page 92084]]
list of those bases upon which a sponsor must not discriminate will
bring the National Registered Apprenticeship System into alignment with
the protected bases identified in the various Federal laws applicable
to most apprenticeship sponsors. These provisions will also ensure
these underrepresented groups have increased access to programs. The
Department's interest in updating part 30 to improve the effectiveness
of sponsors' affirmative action efforts, as well as Registration
Agencies' efforts to enforce and support compliance with this rule,
lies in assuring that the Department's approval of a sponsor's
apprenticeship program does not serve to support, endorse, or
perpetuate discrimination.
2. General Comments Received on the Economic Analysis in the Notice
Period of Proposed Rulemaking
The Department received several public comments that addressed the
economic analysis in the NPRM. We carefully considered the comments
received. The significant comments and summaries of the Department's
analyses and determinations are discussed below:
a. Specific Steps To Provide Equal Opportunity--Staff Designation
Comments: In the NPRM, the economic analysis estimated that no
additional burden would be incurred by the requirement to designate an
individual to be responsible and accountable for overseeing the
sponsor's commitment to EEO. Several commenters questioned this
assumption by stating that staff already had full time jobs and the
assumption that a human resource manager is already on staff may be
inaccurate.
Department Response: Because businesses already have EEO provisions
that they have to comply with through other federal regulations, it is
the Department's interpretation that businesses will not need to
provide additional staffing and that these responsibilities will fall
under the existing staffing infrastructure. Additionally, the
Department is committed to providing adequate technical assistance to
sponsors and does not expect to increase the sponsor's need for
staffing or other resources. The Final Rule language has been modified
to clarify that the EEO designation can be provided to one individual
or to multiple individuals so it is not a single person that has to
address the requirements of this rule.
b. Specific Steps To Provide Equal Opportunity--Orientation and
Periodic Information Sessions
Comments: In the NPRM, the economic analysis estimated that 5
apprentices and 5 journeyworkers would attend orientation and periodic
information sessions. Several commenters stated that many programs
could have considerably more apprentices, which would require much more
of their time and possibly entail additional logistical costs
associated with hosting meetings of that size.
Department Response: Based on program data and the growth model for
apprentices and sponsors in this analysis, the Department estimated
that 24 apprentices and 24 journeyworkers would attend orientation and
periodic information sessions for all sponsors in 2017. Over the 10-
year analysis period (2017-2026) these numbers would gradually increase
to 34 apprentices and 34 journeyworkers in 2026.\90\ Because sponsors
already have in place a system to provide training and messaging to
apprentices and journeyworkers, the Department believes that sponsors
will be able to work in the additional EEO requirements that need to be
communicated into their existing outreach structure with minimal
additional cost. Additionally, the Department intends to provide
guidance to sponsors relating to areas such as relevant recruitment
sources and links to materials that sponsors and/or participating
employers can use for anti-harassment communications and training.
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\90\ Using program data from the Registered Apprenticeship
Partners Information Data System (RAPIDS) and the growth model for
apprentices and sponsors used in the analysis, the Department
estimated that there are on average 24 apprentices per sponsor in
2017; 26 in 2018; 27 in 2019; 28 in 2020; 29 in 2021; 31 in 2022; 32
in 2023; 32 in 2024; 33 in 2025; and 34 in 2026. The Department
further assumes a one-to-one ratio between apprentice and
journeyworker in estimating the cost of orientations and periodic
information sessions.
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c. Revised Methodology for Utilization Analysis and Goal Setting
Comments: The NPRM estimated that the revised utilization
methodology would have streamlined the process and resulted in a
reduced burden of the Final Rule. Several commenters disagreed with
that estimation and indicated that the revised guidelines required more
statistical expertise than staff typically possess. The inference that
the Department would no longer be providing ``availability''
percentages would also increase staffing requirements and labor.
Department Response: In response to these concerns, the Department
has revised the utilization analysis described in the Final Rule to
largely revert to existing practice, in which the Registration Agency
provides significant support, and lessened the frequency with which the
analysis has to be done--resulting in minimal additional burden for
sponsors. Further, the Department intends to build a data tool that
will assist in future iterations of the utilization analysis. Although
this data tool will reduce burden for sponsors to conduct the
utilization analysis in the long-run, the Department's analysis has
accounted for additional upfront costs for time associated with
familiarization with the tool for sponsors that choose to use it. In
total, the Department is providing a data tool that will assist
sponsors with conducting their utilization analysis approximately every
five years. The Department has calculated costs to sponsors both for
familiarization with the data tool and for using the tool to assist in
conducting the analysis.
d. Invitation to Self-Identify as an Individual With a Disability
Comments: The NPRM estimated that 10 individuals would apply to
each of 5 job postings per year, would choose to self-identify their
disability status, and that an administrative assistant would spend 30
minutes reviewing and record-keeping the identification forms. Several
commenters pointed out that the proposed rule would require self-
identification to happen at 3 different points in the process.
Additionally, it was noted that if the Final Rule requires additional
outreach, a job posting could receive more than 10 applicants.
Department Response: The Department has updated the economic
analysis to reflect that the invitation to self-identify takes place
two times. In addition, the Department has increased the assumed number
of applicants to a job posting to 15 individuals based our historical
experience and in consultation with program staff. The Department has
observed that rural areas tend to receive 10 applications per
apprentice opening, high density areas receive 12-15, and statewide
programs receive more than 15 applications. In order to avoid under-
estimating the costs, the Department assumes 15 applications across all
program sponsors. In addition, the Department has updated this
provision to allow for a 2-year phase-in of the requirement.
e. Overall Rule Costs and ERISA
Comments: Several commenters indicated that many apprenticeship
sponsors are joint labor-management apprenticeship funds covered by
ERISA.
[[Page 92085]]
These sponsors are not legally allowed to use funds to promote social,
environmental, or other public policy causes at the expense of the
interests of the plans' participants and beneficiaries. Some indicated
that this may reduce the number of apprenticeship sponsors because
firms subject to both requirements (the Final Rule and ERISA) may leave
the apprenticeship program.
Department Response: The Final Rule specifies that sponsors who are
operating under employee benefit plans governed by ERISA may now be
eligible to use certain plan assets that support quality pre-
apprenticeship programs and other workforce pipeline resources. Where
support for such programs is necessary to maintain the plan's
registration, or is otherwise advantageous to the plan, assets of the
plan may be used to defray the reasonable expenses of such support.
Therefore, the Department does not anticipate the number of jointly-
sponsored apprenticeship programs to decrease because of the
requirements of the Final Rule.
f. Percentage of Firms With Fewer Than Five Apprentices
Comments: The NPRM estimated that 75 percent of sponsors would have
fewer than 5 apprentices and thus be exempt from certain Final Rule
requirements. One commenter took issue with the assumption that the 25
percent of sponsors with five or more apprentices will be static over
time. Due to increased federal funding launching apprenticeship
programs into fields not typically represented (e.g., information
technology), the commenter predicted that much of the growth of the
program would come from new programs with more than five apprentices.
Department Response: While the Department agrees that the
percentage of sponsors with 5 or more apprentices may change year-to-
year and we expect the number of sponsors to increase over time, we
expect the increase to occur across all industries. This includes those
with long-time apprenticeship programs and those within new industries.
The Department is not aware of information suggesting that this growth
would be biased in favor of large or small sponsors, as new programs
can be developed by any size of sponsor. Consequently, we assume that
the percentage of sponsors with 5 or more apprentices will remain
constant as the Apprenticeship program grows.\91\
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\91\ The Department has estimated that the average number of
apprentices per sponsor will increase over time in its model of
apprentice and sponsor growth. This does not, however, directly
contradict the assumption that the share of sponsors with 5 or more
apprentices will remain constant. The average number of apprentices
per sponsor can increase because both small and large sponsors grow
their programs, but if small programs continue to keep their
programs below 5 apprentices, the shares that have 5 or more
apprentices and that have fewer than 5 apprentices can remain
constant. Without being aware of any information that suggests that
growth will be biased in favor of large or small sponsors or that
suggests a large number of small sponsors will choose to increase
the size of their programs to 5 apprentices or above, the Department
believes that assuming the percentage of sponsors with 5 more
apprentices will remain constant is the correct approach.
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3. Economic Analysis
The Department derives benefit and cost estimates by comparing the
baseline (the program benefits and costs under the 1978 Final Rule
\92\) with the benefits and costs of implementing the provisions in the
Final Rule. Only the additional benefits and costs that are expected to
be incurred due to the changes in this regulation are included in the
analysis.
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\92\ 43 FR 20760, May 12, 1978 (requiring the inclusion of
female apprentices in AAPs).
---------------------------------------------------------------------------
The Department sought to quantify and monetize the benefits and
costs of the Final Rule where feasible. Where we were unable to
quantify benefits and costs--for example, due to data limitations--we
describe them qualitatively. This analysis covers a 10-year period
(2017 through 2026) to ensure it captures major benefits and costs that
accrue over time. In this analysis, we have sought to present benefits
and costs both undiscounted and discounted at 7 and 3 percent,
respectively, following OMB guidelines.\93\
---------------------------------------------------------------------------
\93\ OMB Circular No. A-4, ``Regulatory Analysis,'' M-03-21
(Sept. 2003).
---------------------------------------------------------------------------
The 10-year monetized costs of the Final Rule range from $370.27
million to $458.90 million (with 7 and 3 percent discounting,
respectively). The 10-year monetized benefits of the Final Rule range
from $4.56 million to $5.83 million (with 7 and 3 percent discounting,
respectively). The annualized costs of the Final Rule range from $52.72
million (with 7 percent discounting) to $53.80 million (with 3 percent
discounting). The annualized monetized benefits of the Final Rule are
$0.65 million (with 7 percent discounting) and $0.68 million (with 3
percent discounting).
In addition, we expect the Final Rule to result in several
overarching benefits to apprenticeship programs as well as some
specific benefits resulting from a clearer and more systematic rule. As
discussed below, equal opportunity policies may result in both
efficiency gains and distributional impacts for society. The Final Rule
may reduce barriers to entry in apprenticeship programs for women,
minorities, persons with disabilities, and LGBT individuals, fostering
an equitable distributional effect, and may alleviate the
inefficiencies in the job market these barriers create. After
considering both the quantitative and qualitative benefits of the Final
Rule, the Department has concluded that the benefits would justify the
costs of the Final Rule.
In the remaining sections, we first present the overall benefits of
the Final Rule, followed by a subject-by-subject analysis of the costs
and benefits. We then present a summary of the costs and benefits,
including total costs over the 10-year analysis period. Finally, we
conclude with a cost-benefit analysis of five regulatory alternatives
(including the Final Rule).
a. Potential Overall Benefits and Distributional Effects of the Final
Rule
This subsection presents the economic benefits and distributional
effects of policy interventions related to equal employment
opportunity. Information on these impacts is derived from an extensive
body of empirical labor market research published over the last two
decades in peer-reviewed publications. We assume that similar effects
would be attributable to this rule's combination of provisions, not
necessarily to a single provision. Some additional benefits associated
with specific provisions of the Final Rule are presented in the next
section.
The Final Rule clarifies and improves the regulations on equal
opportunity employment from the 1978 Final Rule by encouraging better
recruiting and hiring practices. These improved affirmative action
policies may lead to both efficiency effects and distributional
effects, as directed by OMB Circular A-4.\94\
---------------------------------------------------------------------------
\94\ OMB Circular No. A-4, p. 14.
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Equal opportunity hiring practices increase diversity in the
workplace, which has been shown to have positive effects. Several
studies have found that well-managed diversity can add value by
increasing the variety of perspectives in a team or company, therefore
fostering creativity.\95\ Research has also proven that diverse groups
can perform better on problem-solving tasks than a
[[Page 92086]]
group of strong individual performers.\96\ Having diverse perspectives
and diverse ways of interpreting and acting on new information improves
the collective ability to both anticipate challenges and find effective
solutions. Increased diversity can also be beneficial to the employer,
as evidenced by a 2007 paper by Hernandez and McDonald, which studied
the effects of hiring workers with disabilities. They found that
compared to those without a disability, disabled workers had longer
tenure, reduced absenteeism, identical job performance, and did not
require significantly more supervision.\97\ Further, a study by
Schotter and Weigelt (1992) showed that equal opportunity policies
increase the efforts of all workers, not just the underutilized
workers.\98\
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\95\ Bassett-Jones, N., ``The Paradox of Diversity Management,
Creativity, and Innovation,'' Creativity and Innovation Management,
14 (2005); Orlando, R., ``Racial Diversity, Business Strategy, and
Firm Performance: A Resource-Based View,'' The Academy of Management
Journal, 43 (2000); Roberge, M., and van Dick, R., ``Recognizing the
Benefits of Diversity: When and How Does Diversity Increase Group
Performance?,'' Human Resource Management Review, 20 (2010).
\96\ Page, Scott. E., ``The Difference: How the Power of
Diversity Created Better Groups, Firms, Schools, and Societies,''
Princeton University Press, (2011).
\97\ Hernandez, B., & McDonald, K. (2007). ``Exploring the
bottom line: A study of the costs and benefits of workers with
disabilities.'' Chicago, IL: DePaul University.
\98\ Schotter, A., and Weigelt, K. (1992). ``Asymmetric
Tournaments, Equal Opportunity Laws and Affirmative Action: Some
Experimental Results,'' The Quarterly Journal of Economics.
---------------------------------------------------------------------------
Among all diversity-improvement measures, affirmative action
programs have been shown to lead to the broadest increases in
diversity.\99\ Further, they have not been found to generate losses in
efficiency for an organization.\100\ Although evidence suggests that
minorities who benefit from affirmative action often have weaker
credentials, there is little evidence suggesting that their labor
market performance is weaker.\101\ Even when job applicants have
comparable credentials, employers have still been found to discriminate
based on race, and therefore lose out on this skilled workforce.\102\
Without policies to combat this discrimination, workers in groups that
are subject to discrimination are often left with the belief that
certain jobs are unattainable, and lack the incentive to improve their
observable skills or invest in education. Personal education and
training investments not only help the individual, but may have
positive externalities in the long run, as discussed further below.
Additionally, by hiring more workers from underrepresented groups,
firms naturally create mentors and expand networking opportunities for
these groups.\103\ These two factors can increase employee retention,
directly benefiting the apprenticeship sponsors who will see the return
on their initial recruitment and training investments.
---------------------------------------------------------------------------
\99\ Kalev, A., Kelly, E., and Dobbin, F (2006), ``Best
Practices or Best Guesses? Assessing the Efficacy for Corporate
Affirmative Action and Diversity Policies,'' American Sociological
Review, 71.
\100\ Holzer, H. and Neumark, D. (2000). ``Assessing Affirmative
Action,'' Journal of Economic Literature, 38.
\101\ Holzer, H. (2007). ``The Economic Impact of Affirmative
Action in the US,'' Swedish Economic Policy Review 53.
\102\ Bertrand, M. and Mullainathan, S. (2002) ``Are Emily and
Brenden More Employable than Lakisha and Jamal? A Field Experiment
on Labor Market Discrimination,'' Chicago Booth Review.
\103\ Blau, F. and Winkler, A. (2005), ``Does Affirmative Action
Work?'' Countering Stereotypes by Changing the Final Rule, Regional
Review Q1.
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Anti-discrimination policies provide economic benefits to
disadvantaged groups, in the form of both higher wages and increased
employment. One study estimated that 15 to 20 percent of aggregate wage
growth between 1960 and 2008 was attributable to the increase in
workforce participation by women and minorities, including
participation increases from the adoption of civil rights laws and
changing social norms.\104\ The Civil Rights Act of 1964 improved both
employment levels and wages for Black workers, as evidenced in cases
such as the South Carolina textile industry.\105\ The implementation of
affirmative action policies has also been shown to increase the odds of
women and minorities in management.\106\ Not only do these efforts help
disadvantaged workers, but effects such as reduced unemployment benefit
the economy as a whole.
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\104\ Hsieh, C., Hurst, E., Jones, C., and Klenow, P. (2013).
``The Allocation of Talent and U.S. Economic Growth,'' NBER Working
Paper.
\105\ Heckman, J., and Payner, B. (1989). ``Determining the
Impact of Federal Anti-Discrimination Policy on the Economic Status
of Blacks: A Study of South Carolina,'' 79 American Economic Review,
138.
\106\ Kalev, A., Kelly, E., and Dobbin, F (2006), ``Best
Practices or Best Guesses? Assessing the Efficacy for Corporate
Affirmative Action and Diversity Policies,'' American Sociological
Review, 71.
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The Final Rule can also be expected to result in a beneficial
distributional effect. The direct beneficiaries of the Final Rule will
be underrepresented workers: Women, minorities, and persons with
disabilities. According to Holzer and Neumark (2000), ``affirmative
action offers significant redistribution toward women and minorities.''
Evidence indicates that women are more likely than men to be classified
as working poor and that Blacks or African Americans and Hispanics or
Latinos are more than twice as likely as their white counterparts to be
among the working poor.\107\ In addition, persons with disabilities
have a poverty rate of 28.5 percent, over twice as high as the poverty
rate of persons without disabilities of 12.3 percent.\108\ Education
and training investments for these underrepresented groups can result
in lifetime earnings benefits. Apprenticeship participants see average
lifetime earnings benefits of nearly $100,000, and for those completing
apprenticeships, there are average lifetime earnings benefits of over
$240,000 compared to similar individuals who do not enter an
apprenticeship.\109\ Construction, the largest represented industry
sector in the National Registered Apprenticeship System, offers a
higher median wage than many traditionally female-dominated jobs and
many other jobs that do not require a college education for
advancement, thus providing opportunity to move out of poverty or
working poor status.\110\ Reducing barriers to entry in apprenticeship
programs for women, minorities, persons with disabilities, people over
age 40, and LGBT individuals can have additional long term impacts to
beneficiaries; one study found that individuals that participated in an
apprenticeship program are 8.6 percent more likely to be employed both
six and nine years after participation.\111\
---------------------------------------------------------------------------
\107\ ``A Profile of the Working Poor, 2014'' Report 1060,
Bureau of Labor Statistics.
\108\ These poverty rates are for individuals ages 18 to 64.
U.S. Census Bureau, Current Population Reports, ``Income and Poverty
in the United States: 2014,'' available at https://www.census.gov/content/dam/Census/library/publications/2015/demo/p60-252.pdf (last
accessed June 10, 2016).
\109\ Reed, D., Yung-Hsu Liu, A., Kleinman, R., et al., ``An
effectiveness assessment and cost-benefit analysis of registered
apprenticeship in 10 states,'' Mathematica Final Report 06689.090
and 40096, Mathematica Policy Research, (2012).
\110\ Median weekly earnings of full-time wage and salary
workers in Construction and Extraction occupations were $749 in
2015. This is significantly higher than the earnings of workers in
many traditionally female-dominated occupations such as childcare
workers; secretaries and administrative assistants; receptionists
and information clerks; and nursing, psychiatric, and home health
aides. The median weekly earnings of full-time wage and salary
workers in these occupations in 2015 were $437, $687, $575, and $467
respectively. Source: Bureau of Labor Statistics analysis of Current
Population Survey data available at http://www.bls.gov/cps/cpsaat39.htm.
\111\ Reed, D., Yung-Hsu Liu, A., Kleinman, R., et al., ``An
effectiveness assessment and cost-benefit analysis of registered
apprenticeship in 10 states,'' Mathematica Final Report 06689.090
and 40096, Mathematica Policy Research, (2012).
---------------------------------------------------------------------------
As apprenticeship expands in the United States, the Department is
committed to ensuring that this expansion benefits the entire American
workforce, including individuals with disabilities, and that it
provides them a path to good jobs and careers with living wages such as
those that apprenticeships offer. To illustrate the impacts the Final
Rule will have on individuals with disabilities, the
[[Page 92087]]
Department estimated the number of individuals with disabilities
expected to benefit from its provisions if the Final Rule's utilization
targets are met and apprenticeship increases by the growth rates
assumed in this analysis. We first obtained estimates of the prevalence
of disabilities among workers in different industries by analyzing
American Community Survey (ACS) data on workers ages 18 to 64 from the
years 2008 to 2012. These estimates are shown in Exhibit 1. Next, in
the absence of data relating to the number of persons with disabilities
enrolled in apprenticeship programs by industry, we assumed that in a
given industry the share of new apprenticeship enrollees that are
persons with disabilities will be the same as the share of workers in
that industry with disabilities. We see, for example that in the
Construction industry, 5.4 percent of all workers have a disability. We
assume, therefore, that 5.4 percent of apprentices in the Construction
industry similarly have disabilities and that in the absence of the
Final Rule that percentage would be maintained as employers enrolled
new apprentices with disabilities at the same rate as they dismissed
apprentices with disabilities. The utilization goal for individuals
with disabilities set forth in the Final Rule is 7 percent of
enrollees, thus an additional 1.6 percent of enrollees (7 percent goal
minus the 5.4 percent assumed to be currently enrolled) will be
expected to be persons with disabilities if the utilization goal of 7
percent is attained. Because the number of new apprentices in a 10-year
span (2017-2026) in Construction is projected by the Department to be
276,591 the Final Rule's goal of a 7 percent enrollment rate would
result in (0.07-0.054) x 276,591 = 4,342 more persons with disabilities
as new apprentices in the Construction industry.
This calculation, when repeated over all industries, gives a total
estimate of an additional 9,243 individuals with disabilities who would
be enrolled out of the total of 541,061 new apprentices projected over
the next 10 years (2017-2026).
Exhibit 1--Impact Estimates for Individuals With Disabilities
----------------------------------------------------------------------------------------------------------------
Share of
workers in Projected new Projected new
Industry industry with apprentices Gap (%) apprentices
disabilities over a 10-year with
(%) period disabilities
(A) (B) (C) = 7%-A (D) = B * C
----------------------------------------------------------------------------------------------------------------
Administrative-Support.......................... 5.5 2,389 1.5 36
Agriculture..................................... 6.2 759 0.8 6
Construction.................................... 5.4 276,591 1.6 4,342
Education....................................... 4.3 64,686 2.7 1,747
Oil, Gas, Mineral Extraction.................... 5.7 266 1.3 3
Finance......................................... 3.9 218 3.1 7
Information..................................... 4.8 1,017 2.2 22
Medical Services................................ 5.1 8,810 1.9 167
Manufacturing................................... 5.3 61,516 1.7 1,021
Professional.................................... 4.8 1,096 2.2 24
Retail.......................................... 5.9 4,747 1.2 55
Personal Service and Care....................... 8.7 791 -1.7 -14
Service......................................... 6.0 2,987 1.0 31
Transportation.................................. 6.2 64,017 0.8 512
Utilities....................................... 4.5 48,134 2.5 1,208
Wholesale....................................... 4.9 3,576 2.1 75
-----------------------------------------------
Total....................................... .............. 541,601 .............. 9,243
----------------------------------------------------------------------------------------------------------------
Source: Department tabulations, November 2014 and ACS 2008-2012.
4. Subject-by-Subject Analysis
The Department's analysis considers the expected benefits (beyond
those discussed above) and costs of the changes to part 30. This
analysis considers the impacts of each change to part 30 separately.
This analysis measures the costs and benefits as they accrue to
sponsors, the Office of Apprenticeship at the Department, and State
partnering agencies. It is estimated that the number of sponsors will
grow over time and our annual cost calculations reflect this growth.
This analysis primarily discusses how the first-year costs were
calculated and indicates that the analysis repeats that calculation
across the 10-year time frame using the appropriate number of sponsors
in any given year. Exhibit 2 presents the number of total and new
sponsors in each year.\112\
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\112\ The Department determined the growth rates applied to
apprenticeships and apprenticeship sponsors in each industry by
examining previous program growth in the RAPIDS database and
extrapolating based on historical trends and regulatory
requirements. The growth model also accounted for the increased
budgetary resources the program has received to expand the program.
In the growth model, the Department used higher industry-specific
growth rates in 2017 than in 2026 to reflect the fact that the
Department expects faster initial growth in the first years of the
10-year window followed by somewhat slower steady growth in the
final years. Over the course of the 10-year window, the growth rates
steadily decrease from the higher 2017 rates to the lower 2026
rates. Were higher sponsor growth rates in each industry to be
assumed to approximately account for the President's ambitious goal
to double the number of apprentices by the end of 2019 and should
those higher growth rates be continued in subsequent years, the
total cost of the Final Rule would increase from $370.27 million to
$708.65 million (with 7 percent discounting) and from $458.90
million to $909.22 million (with 3 percent discounting) over the 10-
year period (2017-2026). The monetized benefit would also increase
from $4.56 million to $9.14 million (with 7 percent discounting) and
from $5.85 million to $11.95 million (with 3 percent discounting)
over the 10-year period.
Exhibit 2--Total Active and New Sponsors (2017-2026)
------------------------------------------------------------------------
Total active New sponsors
Year sponsors \113\
------------------------------------------------------------------------
2017.................................... 23,811 2,942
2018.................................... 25,231 3,005
2019.................................... 26,606 3,046
2020.................................... 27,915 3,062
2021.................................... 29,137 3,052
2022.................................... 30,250 3,013
2023.................................... 31,233 2,946
2024.................................... 32,069 2,850
2025.................................... 32,739 2,727
[[Page 92088]]
2026.................................... 33,230 2,578
------------------------------------------------------------------------
a. Familiarization With the Final Rule
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\113\ Note that the number of new sponsors in a given fiscal
year is larger than the difference between that year's total active
sponsors and the previous year's total active sponsors because the
Department has accounted for the fact that there will be some
turnover among sponsors as some sponsors end their programs and are
replaced by new sponsors. To calculate this annual turnover, the
Department looked at historical RAPIDS data from FY2010 through
FY2015, and determined that, on average, approximately 6.3 percent
of total active sponsors in a given year were new sponsors that had
simply replaced old sponsors in the total active sponsor count. To
calculate total new sponsors in a given year in the analysis's 10-
year window, the Department multiplied this 6.3 percent by the
number of total active sponsors in a given year and added this to
the difference between each year's total active sponsor count and
the total active sponsor count of the preceding year.
---------------------------------------------------------------------------
To estimate the cost of initial rule familiarization, we multiplied
the number of apprenticeship sponsors in 2017 (23,811)--the first full
year in which the Final Rule will be in effect--by the amount of time
required to read the new rule (4 hours) and by the average hourly
compensation of a private-sector human resources manager ($73.90).\114\
In the first year of the Final Rule, the cost to sponsors amounts to
approximately $7.04 million in labor costs. We repeated this
calculation for each remaining year in the analysis period using the
estimated number of new sponsors for each year, resulting in an
annualized cost ranging from $1.69 million to $1.57 million with 7
percent and 3 percent discounting, respectively.\115\ In subsequent
years, this cost is only applied to new sponsors because existing
sponsors will have already familiarized themselves with the Final Rule
in previous years.
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\114\ We calculated the hourly compensation rate for a human
resource manager (Occupation code 11-3121) by multiplying the median
hourly wage of $51.32 (source: Bureau of Labor Statistics (BLS), May
2015 National Occupation Employment and Wage Estimates by Ownership:
Cross-industry, Private ownership only, http://www.bls.gov/oes/current/000001.htm#11-0000) by 1.44 to account for private-sector
employee benefits (source: BLS, June 2016 Employer Costs for
Employee Compensation, http://www.bls.gov/news.release/ecec.nr0.htm
BLS ECI series CMU2010000000000D, CMU2010000000000P,
CMU2020000000000D, CMU2020000000000P). The hourly compensation rate
for a human resource manager is thus $73.90 ($51.32 x 1.44).
\115\ To calculate the labor burden, we multiplied the time to
complete the task by the hourly compensation rate for sponsors
($73.90 x 4 = $295.60). The total cost for sponsors in 2017 is the
labor cost multiplied by the total number of sponsors (23,811), or
$7.04 million ($295.60 x 23,811). This burden occurs in the first
year of the analysis period for all sponsors, and every year
thereafter only for new sponsors.
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b. Addition of Age (40 or Older), Genetic Information, Sexual
Orientation, and Disability to the List of Protected Bases
The Final Rule updates the EEO standards to include age (40 or
older), genetic information, sexual orientation, and disability to the
list of protected bases upon which sponsors of registered
apprenticeship programs must not discriminate (Sec. 30.3(a)). As
explained in the preamble, the addition of these bases to the types of
discrimination prohibited by part 30 should not result in any
significant additional cost to sponsors as most of the National
Registered Apprenticeship System's sponsors must already comply with
Federal, State, and local laws and regulations prohibiting or otherwise
discouraging discrimination against applicants and employees based on
age (40 or older), genetic information, sexual orientation, and
disability. Even among those sponsors not covered by such laws, many
have internal EEO policies that prohibit discrimination on these bases.
Therefore, the Department does not expect that the addition of age (40
or older), genetic information, sexual orientation, and disability to
the list of protected bases in Sec. Sec. 30.1(a) and 30.3(a) would
result in any significant costs to sponsors.
c. Specific Affirmative Steps To Provide Equal Opportunity
The Final Rule requires all sponsors, regardless of size, to take
certain affirmative steps to provide equal opportunity in
apprenticeship. The Final Rule language in Sec. 30.3(b) will, for the
first time, obligate sponsors to take the following basic steps to
ensure EEO in apprenticeship.
First, sponsors are required to designate an individual or
individuals to be responsible and accountable for overseeing the
sponsor's commitment to EEO (Sec. 30.3(b)(1)). The Department expects
the burden of this requirement on sponsors to be minimal. Most, if not
all, sponsors have an apprenticeship coordinator who is in charge of
the apprenticeship program. The Department anticipates that this
requirement will be fulfilled by individuals currently providing
coordination and administrative oversight functions for the program
sponsor. We expect that the designation will be a relatively minor
administrative matter, but one that will result in institutionalizing a
sponsor's commitment to equal opportunity.
Second, the Final Rule requires for the first time that sponsors
post their equal opportunity pledge on bulletin boards and through
electronic media, such that it is accessible to all apprentices and
applicants to apprenticeship programs (Sec. 30.3(b)(2)). We assume
that sponsors choose to put up a physical copy of the pledge and also
post it on their Web site.\116\ The cost of this requirement is
minimal. The Department assumes it will take a sponsor 5 minutes (0.08
hour) to post the pledge and that this task will be performed by an
administrative assistant at an hourly compensation rate of $23.10.\117\
We multiplied the time estimate for this provision by the hourly
compensation rate to obtain a total labor cost per sponsor of $1.85
($23.10 x 0.08). Updating the EO pledge to include age (40 or older),
genetic information, sexual orientation, and disability will not create
any new burden because it is already covered by the existing
requirements. To estimate the materials cost, the Department assumed
that the pledge is one page, and that the cost per page for
photocopying is $0.08, resulting in a materials cost of $0.08 ($0.08 x
1) per sponsor. The total cost of putting up a physical copy of the
pledge per sponsor is therefore $1.93 ($1.85 + $0.08).
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\116\ Some sponsors may already be undertaking some actions that
would count toward compliance with this obligation and,
consequently, the cost calculation for this provision is likely an
overestimate.
\117\ We calculated the hourly compensation rate for an
administrative assistant (Occupation code: 43-6014) by multiplying
the median hourly wage of $16.04 (source: BLS, May 2015 National
Occupation Employment and Wage Estimates by Ownership: Cross-
industry, Private ownership only, http://www.bls.gov/oes/current/000001.htm#11-0000) by 1.44 to account for private-sector employee
benefits. Thus, the hourly compensation rate for an administrative
assistant is $23.10 ($16.04 x 1.44).
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The Department also assumes it will take a sponsor 10 minutes (0.17
hours) to post the pledge on its Web site and that this task will be
performed by a web developer at an hourly compensation rate of
$45.24.\118\ The cost of posting the pledge on the sponsor's Web site
is $7.69 ($45.24 x 0.17). The total per sponsor cost of this provision,
including the posting of physical copy of the pledge and the posting of
the
[[Page 92089]]
pledge on the sponsor's Web site, is therefore $9.62 ($1.93 + $7.69).
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\118\ We calculated the hourly compensation rate for a web
developer (Occupation code: 15-1134) by multiplying the median
hourly wage of $31.42 (source: BLS, May 2015 National Occupation
Employment and Wage Estimates by Ownership: Cross-industry, Private
ownership only, http://www.bls.gov/oes/current/000001.htm#11-0000)
by 1.44 to account for private-sector employee benefits. Thus, the
hourly compensation rate for a web developer is $45.24 ($31.42 x
1.44).
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Multiplying this sum ($9.62) by the total number of sponsors
(23,811) in the first year (2017) results in a cost of $229,033 for
this provision. The posting of the equal opportunity pledge is a one-
time cost; costs after the first year are only incurred by new
sponsors. Looking over the full ten-year period, the annualized cost of
this provision is $55,015 (with 7 percent discounting) and $51,044
(with 3 percent discounting).
The Final Rule Sec. 30.3(b)(2) also requires each sponsor to
conduct orientation and periodic information sessions for apprentices,
journeyworkers who directly supervise apprentices, and other
individuals connected with the administration or operation of the
sponsor's apprenticeship program to inform and remind such individuals
of the sponsor's equal employment opportunity policy with regard to
apprenticeship. The orientation and information sessions required by
Sec. 30.3(b)(2)(iii) underscore the sponsor's commitment to equal
opportunity and its affirmation action obligations. These sessions also
institutionalize a sponsor's EEO policies and practices, providing a
mechanism by which the sponsor may inform everyone connected with the
apprenticeship program of the sponsor's obligations under part 30, and
ensure that all individuals involved in the program understand these
obligations and the policies instituted to implement them. Under Sec.
30.3(b)(4)(i), sponsors are also required to provide anti-harassment
training, which will be incorporated into these periodic orientation
and information sessions. This training must include active
participation by trainees, such as attending a training session in
person or completing an interactive training online and will include at
a minimum communications to apprentices and journeyworkers who directly
supervise apprentices that harassing conduct will not be tolerated, the
definition of harassment and types of conduct that constitute
harassment, and the right to file a harassment complaint.
Using 2015 data from the Registered Apprenticeship Partners
Information Data System (RAPIDS) and the growth model for
apprenticeship and sponsors in this analysis, the Department calculated
that there are on average 24 apprentices per sponsor in 2017.\119\ The
Department further assumes a one-to-one ratio between apprentice and
journeyworker in estimating the cost of orientations and periodic
information sessions. The Department first estimated that the 23,811
sponsors in the first year (2017) will hold one 45-minute regular
orientation and information session with an average of 24 apprentices
($18.72 per hour) \120\ and 21 journeyworkers ($31.68 per hour) \121\
per sponsor. The Department estimated that a human resource manager
($73.90 per hour) will need to spend 2 hours to develop and prepare
written materials for the session in the first year, and the 2 hours
also cover maintaining the training materials which were already saved
on the computer ($3.52 million = 23,811 sponsors x 2 hours x $73.90).
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\119\ The Department estimated that there are on average 24
apprentices per sponsor in 2017; 26 in 2018; 27 in 2019; 28 in 2020;
29 in 2021; 31 in 2022; 32 in 2023; 32 in 2024; 33 in 2025; and 34
in 2026.
\120\ We calculated the hourly compensation rate for an
apprentice by multiplying the median hourly wage of $13.00 (as
published by PayScale for an apprentice electrician) by 1.44 to
account for private-sector employee benefits (source: OES survey).
Thus, the hourly compensation rate for an apprentice is $18.72
($13.00 x 1.44). We used the wage rate for an apprentice electrician
in this analysis because electrician is one of the most common
occupations in the apprenticeship program.
\121\ We calculated the hourly compensation rate for a
journeyworker by multiplying the median hourly wage of $22.00 (as
published by PayScale for a journeyworker electrician) by 1.44 to
account for private-sector employee benefits (source: OES survey).
Thus, the hourly compensation rate for a journeyworker electrician
is $31.68 ($22.00 x 1.44). We used the wage rate for a journeyworker
electrician in this analysis because electrician is one of the most
common occupations in the apprenticeship program.
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This calculation results in a total cost for this provision of
approximately $26.44 million in the first year (2017).\122\ All
sponsors are assumed to hold one 45-minute regular orientation and
information session annually. This calculation is repeated in
subsequent years (with the requirement that an HR manager develop
written materials only applicable for new sponsors). The annualized
cost ranges from $34.18 million (with 7 percent discounting) to $34.87
million (with 3 percent discounting).
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\122\ The total cost was derived from the cost for an HR manager
to develop materials (2 hours) and attend the training (0.75 hours),
as well as 24 apprentices and 24 journeyworkers to attend the
training. In 2017, with 23,811 active sponsors, material development
cost $3.52 million ($73.90 x 2 x 23,811), HR manager attendance cost
$1.32 million ($73.90 x 0.75 x 23,811), apprentice attendance cost
$8.03 million ($18.72 x 0.75 x 24 x 23,811), and journeyworker
attendance cost $13.58 million ($31.68 x 0.75 x 24 x 23,811) the
total cost for all 23,811 sponsors is $23.74 million in 2017.
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Third, under the existing Sec. 30.4(c) sponsors are required to
engage in appropriate outreach and recruitment activities to
organizations that serve women and minorities, and the regulations list
the types of appropriate activities a sponsor is expected to undertake.
The exact mix of activities depends on the size and type of the program
and its resources; each sponsor, however, is ``required to undertake a
significant number of appropriate activities'' under the existing Sec.
30.4. Under the Final Rule, all sponsors are required to reach out to a
variety of recruitment sources, including organizations that serve
individuals with disabilities, to ensure universal recruitment (Sec.
30.3(b)(3)). Including individuals with disabilities among the groups
of individuals to be recruited is a new focus for sponsors. Sponsors
are required to develop a list of recruitment sources that generate
referrals of women, minorities, and persons with disabilities with
contact information for each source. Further, sponsors are required to
notify these sources in advance of any apprenticeship opportunities;
while a firm deadline is not set, the Final Rule suggests 30 days'
notice if possible under the circumstances. This may lead employers to
incur costs due to the additional delay in the hiring process resulting
from this rule. The Department, however, does not have enough
information to estimate this potential cost.
The kinds of activities we anticipate the sponsor engaging in to
satisfy this requirement include distributing announcements and flyers
detailing job prospects, holding seminars, and visiting some of the
sources that will likely provide access to individuals with
disabilities. The Department assumed that the cost to sponsors to
distribute information to persons with disabilities will be the labor
cost to comply with this provision. We also assumed that the activity
to satisfy this provision will be performed by a human resource manager
and an administrative assistant with hourly compensation rates of
$73.90 and $23.10, respectively. We assumed that this task will take 30
minutes (0.5 hour) of a human resource manager's time and 30 minutes
(0.5 hour) of an administrative assistant's time per targeted source.
We calculated the cost of this provision per affected sponsor by
multiplying the time each staff member devotes to this task by their
associated hourly compensation rates. We then multiplied the total
labor cost by the assumed number of outreach sources (5) and by the
total number of sponsors.\123\ All sponsors are assumed
[[Page 92090]]
to conduct this outreach in all years.\124\ The resulting cost of this
provision is $5.77 million in the first year, with an annualized cost
ranging from $6.94 million (with 7 percent discounting) to $7.02
million (with 3 percent discounting).
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\123\ To estimate the cost of this provision, we calculated the
labor cost per affected sponsor by multiplying the time required for
the task by the hourly compensation rate for both a human resource
manager ($73.90 x .5 = $36.95) and an administrative assistant
($23.10 x .5 = $11.55). We then multiplied the total per-sponsor
labor cost by the total number of sponsors in 2017 (23,811) and by
the five sites for which each sponsor is to provide outreach. This
results in a total cost of $5.77 million (($36.95 + $11.55) x 23,811
x 5) in 2017. We repeated this calculation for each year of the
analysis period, using the projected number of sponsors for each
year.
\124\ This cost for all sponsors may be an overestimate because
some sponsors are already undertaking some outreach activities on
their own under the existing regulations.
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Because universal outreach may involve a range of activities, the
Department conducted a sensitivity analysis on the total time allocated
to universal outreach. Mirroring the calculation above, the Department
estimated a low allocation of time (15 minutes, or 0.25 hour) and a
high allocation of time (1 hour and 15 minutes, or 1.25 hour) for both
the administrative assistant and the human resource manager. The
resulting range of costs for the first year is $2.89 million to $14.44
million with an annualized cost ranging from $3.47 million (with 7
percent discounting) to $3.51 million (with 3 percent discounting) at
the lower bound to $17.35 million (with 7 percent discounting) to
$17.56 million (with 3 percent discounting) at the higher bound.\125\
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\125\ To estimate the range of costs for this provision, we
calculated the labor cost per affected sponsor by multiplying the
time required for the task by the hourly compensation rate for both
a human resource manager ($73.90 x 0.25 = $18.48 for the low cost
and $73.90 x 1.25 = $92.38 for the high cost) and an administrative
assistant ($23.10 x 0.25 = $5.78 for the low cost and $23.10 x 1.25
= $28.88 for the high cost). We then multiplied the total per-
sponsor labor cost by the total number of sponsors in 2017 (23,811)
and by the five sites for which each sponsor is to provide outreach.
This results in a total cost of $2.89 million for the low time
assumption (($18.48 + $5.78) x 23,811 x 5)) and $14.44 million for
the high time assumption (($92.38 + $28.88) x 23,811 x 5) in 2017.
We repeated this calculation for each year of the analysis period,
using the projected number of sponsors for each year. Totals may not
add due to rounding.
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Fourth, the Final Rule requires that all sponsors develop and
implement procedures to ensure that their apprentices are not harassed
because of their race, color, religion, national origin, sex, sexual
orientation, age (40 or older), genetic information, or disability and
to ensure that the workplace is free from harassment, intimidation, and
retaliation (Sec. 30.3(b)(4)(iv)). As explained in the preamble, this
requirement should not result in new burdens on sponsors who are
already subject to Federal laws that prohibit harassment in the
workplace. Because title VII, Executive Order 11246 as amended by
Executive Order 13672, the ADEA, GINA, and the ADA prohibit these
actions, and most sponsors are already subject to these laws. Because
time has been calculated for compliance with the periodic orientation/
information sessions in 30.3(b)(2)(iii) of which the anti-harassment
training is a part, the cost of this requirement has already been
accounted for in this analysis. As mentioned in the preamble, the
Department will also provide anti-harassment materials that can be used
by sponsors.
d. Revised Methodology for Workforce and Utilization Analysis and Goal
Setting
The Final Rule streamlines the workforce and utilization analysis
required of sponsors with five or more apprentices and clarifies when
and how utilization goals are to be established for women and
minorities (Sec. Sec. 30.5 through 30.7). Specifically, the Final Rule
requires sponsors to consider two factors when determining the
availability of individuals for apprenticeships rather than the five
currently listed in the part 30 regulations: The percentage of
individuals eligible for enrollment in apprenticeship programs within
the sponsors relevant recruitment area and the percentage of the
sponsor's employees eligible for enrollment in the apprenticeship
program, both to be detailed by race, sex, and ethnicity. The Final
Rule further reduces the frequency with which the workforce and
utilization analyses must be conducted--from annually under the
existing rule to at the time of the compliance review for the
utilization analysis (every five years on average) and within three
years of the compliance review for the workforce analysis (effectively
every two and a half years on average). In addition, the Final Rule
explains in clear terms the steps required to determine whether any
particular groups of individuals are being underutilized and the
Registration Agency will provide direction as to when and how goals are
to be established. First, sponsors will conduct a workforce analysis to
identify the racial, sex, and ethnic composition of their apprentices.
Second, an availability analysis will establish a benchmark against
which the existing composition of apprentices will be compared.
Sponsors will establish utilization goals and engage in targeted
outreach, recruitment, and retention efforts when the sponsor's
utilization of women, Hispanics or Latinos, or individuals in racial
minority groups are ``significantly less than would be reasonably
expected given the availability of such individuals for
apprenticeship.'' Registration Agencies will work closely with sponsors
during compliance reviews to assist in the development of an
availability analysis and setting or reassessing utilization goals for
race, sex, and ethnicity. The Department will be further developing a
data tool to assist in the collection and analysis of relevant
demographic data for the purposes of goal setting. The Department has
determined that there are three types of costs associated with this
provision: Costs associated with the development of and familiarization
with the data tool, costs associated with the workforce analysis, and
costs associated with the utilization analysis.
Although it is the Department's expectation that this activity will
result in long-term efficiencies and burden reductions for both the
Department and affected sponsors, it understands that there will be
costs associated with both the development of the data tool and the
time sponsors will need to familiarize themselves with the tool. To
develop the tool, the Department estimates that it will use a GS-13
Department employee at an hourly compensation rate of $64.71 for 60
hours \126\ to advise a contractor to build the tool. Based on the
Department's requirements for similar assignments, the cost of
contracting for building the tool is estimated to be $55,000. The total
one-time cost to the Department for building the tool is therefore
estimated to be $58,883.
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\126\ The GS-13 salary is from the Office of Personnel
Management's 2015 Salary Table. This wage is further multiplied by
the Federal benefits multiplier of 1.63 for an hourly compensation
rate of $64.71 ($39.70 x 1.63). The Federal multiplier of 1.63 is
the result of a two-step estimate: The average ratio of total
compensation to total wages in the private sector in 2015 (1.44)
multiplied by the ratio of loaded wage factors for federal workers
compared to private sector workers (1.13). Totals may not add due to
rounding. See Bureau of Labor Statistics. (2016). 2015 Employer
Costs for Employee Compensation. Retrieved from: http://www.bls.gov/schedule/archives/ecec_nr.htm; Congressional Budget Office. (2012).
Comparing the compensation of federal and private-sector employees.
Tables 2 and 4. Retrieved from: https://www.cbo.gov/sites/default/files/112th-congress-2011-2012/reports/01-30-FedPay_0.pdf.
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To quantify the cost associated with sponsor familiarization with
the data tool, the Department assumed that the data tool is developed
in 2017 and that the following year (2018) all sponsors (25,231) with 5
or more apprentices (25 percent) will incur one hour of HR manager
labor ($73.90 per hour) to familiarize the organization with the
[[Page 92091]]
tool. This is estimated to have a cost of $466,143 (25,231 x 25 percent
x $73.90 x 1) in 2018. We repeated this calculation for the following
years only for new sponsors to the program who will still need to
acclimate themselves with the tool. This provision has an annualized
cost of $98,197 (with 7 percent discounting) and $93,348 (with 3
percent discounting).
To calculate the cost of the new workforce analysis, the Department
first determined the baseline (current) cost of the workforce
requirements under existing regulations. The existing workforce
analysis required 1 hour of HR manager labor ($73.90 per hour) for all
sponsors (23,811 in 2017) with 5 or more apprentices (25 percent)
annually.
The Department then determined that the new methodology for
conducting workforce analyses under the Final Rule--including the
conducting of workforce analyses for individuals with disabilities--
would result in 2 hours of HR manager labor ($73.90 per hour) for all
sponsors (25,231 in 2018) with 5 or more apprentices (25 percent). All
sponsors with 5 or more apprentices must conduct their first new
workforce analysis within two years of the Final Rule's effective date
and every 2.5 years after that. The Department calculated that the new
workforce analyses in 2018--the first year in which the new workforce
analyses would be undertaken per the compliance date set forth in Sec.
30.5(b)(3) for all sponsors with 5 or more apprentices--will cost
$932,285 (2 hours x $73.90 x (25,231 x 25 percent)). In calculating
costs for the year 2019 and afterward, the Department divided the
number of applicable sponsors in each year by 2.5 to reflect the
assumption that in 2019 and after sponsors will conduct the analysis
per the 2.5-year timeline. This means that in any given year 40 percent
of these sponsors will conduct the new workforce analysis or that it
would take 2.5 years to have these sponsors conduct the new workforce
analysis. We repeated this calculation for the following years using
the appropriate number of sponsors in any given year, resulting in an
annualized cost of $445,815 (with 7 percent discounting) and $449,806
(with 3 percent discounting) for sponsors.
To calculate the cost of the new utilization analysis, the
Department determined that the utilization analysis will result in 0.5
hour of HR manager time ($73.90 per hour) for all sponsors (26,606 in
2019) with 5 or more apprentices (25 percent) every 5 years. There is
no baseline cost for this portion of the analysis, as previously the
Department was providing the analysis with minimal burden to sponsors.
The cost of conducting the first utilization analyses in 2019--the
first year that utilization analyses are likely to be conducted--is
$49,155 (0.5 hour x $73.90 x (26,606 x 25 percent)/5 years). We
repeated this calculation for the following years, and conducting
utilization analyses has an annualized cost of $41,235 (with 7 percent
discounting) and $43,348 (with 3 percent discounting) for sponsors.
Benefits
Once the data tool is developed, the Department estimates it will
reduce the time required for its GS-13 employee ($64.71 per hour) to
conduct a utilization analysis from the existing 2 hours to 1 hour
using the data tool jointly with sponsors. Furthermore, the frequency
of conducting the utilization analysis is reduced from annually to once
every 5 years. This will result in a cost saving to the Department of
$774,753 in 2019 ((26,606 x 25 percent x (2 hour - (1 hour/5 years)) x
$64.71) and an annualized cost saving ranging from $649,925 (with 7
percent discounting) to $683,240 (with 3 percent discounting).
e. Requiring Targeted Outreach, Recruitment, and Retention for
Underutilized Groups
In addition to the normal outreach, recruitment, and retention
activities required of all sponsors under Sec. 30.3(b), the Final Rule
requires a sponsor of an apprenticeship program, whose utilization
analyses revealed underutilization of a particular group or groups of
individuals pursuant to Sec. 30.6 and/or who has determined pursuant
to Sec. 30.7(e) that there are impediments to EEO for individuals with
disabilities, to engage in targeted outreach, recruitment, and
retention for all underutilized groups in Sec. 30.8. We assume that
this additional outreach will happen in the same manner as the
universal outreach discussed above.
We further assume that this targeted outreach, recruitment, and
retention is newly required for individuals with disabilities of all
sponsors who employ five or more apprentices, who failed to meet the 7
percent utilization goal, and whose existing recruitment efforts are
not effective and need to be revised, since the Final Rule now requires
that such sponsors engage in affirmative action of individuals with
disabilities. The Department recognizes, however, that some sponsors
may already be meeting the 7 percent utilization goal for persons with
disabilities. Others may be employing them at less than 7 percent, but
nevertheless do not need to engage in targeted outreach and recruitment
because their review of their activities did not reveal any barriers to
equal opportunity. Therefore, the analysis below may overestimate the
number of sponsors that need to engage in targeted outreach and
recruitment and consequently overestimate total costs of this
provision.\127\
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\127\ For this analysis, we assumed that the percent of all
sponsors employing five or more apprentices (25 percent) remains
constant throughout the 10-year analysis period. In reality, this
percentage will fluctuate as sponsors take on new apprentices and as
apprentices complete their programs. We also expect that, over time,
successful outreach will lead to more hiring of persons with
disabilities and that sponsors will meet their recruitment goals and
not be required to complete this additional outreach.
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We assume that the cost to sponsors to distribute information about
apprenticeship opportunities to organizations serving individuals with
disabilities will be the labor cost. We also assume that the labor for
this provision will be performed by a human resource manager and an
administrative assistant with hourly compensation rates of $73.90 and
$23.10, respectively. Lastly, we assume that this additional outreach
will first occur two years after the Final Rule goes into effect. At
the first compliance review--which for the first group of sponsors to
conduct compliance reviews will occur approximately two years after the
Final Rule's effective date--sponsors need to conduct a utilization
analysis and an internal review to identify underutilization for women,
minority groups, or individuals with disabilities. Sponsors who need to
engage in targeted outreach and recruitment for the first time should
continue to do so annually until the next compliance review.
The Department estimated that this dissemination task will take 30
minutes (0.5 hour) of a human resource manager's time and 30 minutes
(0.5 hour) of an administrative assistant's time per targeted source. A
sensitivity analysis for a range of time spent conducting targeted
outreach to organizations that serve individuals with disabilities is
presented further below. The cost of this provision per affected
sponsor is the time each staff member devotes to this task multiplied
by their associated hourly compensation rates. This calculation
resulted in a labor cost of $48.50 (($73.90 x 0.5) + ($23.10 x 0.5))
per source. We then multiplied this total labor cost by the number of
outreach sources (5),\128\ the
[[Page 92092]]
share of sponsors with five or more apprentices (25 percent), the share
of sponsors that will undertake a utilization analysis in any given
year (20 percent \129\) and the share of sponsors that will identify
underutilization and/or problem areas in one or more of the relevant
demographic groups--(95 percent \130\). This calculation ($48.50 x
26,606 x 5 x 25 percent x 20 percent x 95 percent) results in a total
cost of this provision of approximately $306,468 in 2019. The number of
sponsors who will undertake a utilization analysis and identify
underutilization and/or problem areas in 2019 is 1,264 (26,606 x 25
percent x 20 percent x 95 percent). Because sponsors who need to engage
in targeted outreach and recruitment for the first time must continue
to do so annually until the next compliance review, the number of
sponsors needing to engage in targeted outreach and recruitment in 2020
will become 2,590, which is the sum of 1,264 and 1,326 (27,915 sponsors
in 2020 x 25 percent x 20 percent x 95 percent). The number of sponsors
who we estimate will need to engage in targeted outreach and
recruitment will eventually reach 95 percent of the total sponsors with
5 or more apprentices in 2023 and after.\131\
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\128\ The Department believes that most sponsors will not have
underutilization in all AAP protected bases (race, ethnicity, sex,
and disability) requiring outreach under Sec. 30.8; however, this
analysis assumes that sponsors will, on average, engage in outreach
to five different organizations in order to comply with its
obligations under 30.8(a). This assumption is, if anything, likely
an overestimate, as some sponsors may be able to address the
underlying issues with connections to fewer organizations, and some
sponsors will not have the underutilization/impediments to EEO that
would trigger the Sec. 30.8 outreach obligation in the first place.
\129\ This is the percentage of sponsors who undergo compliance
review each year, as determined by the 5-year schedule on which
sponsors undergo compliance reviews.
\130\ In the consultation with regional directors, the
Department assumed that 95 percent of sponsors that conduct a
utilization analysis will discover underutilization of a particular
group or groups of individuals pursuant to Sec. 30.6 and/or
problems with respect to its outreach, recruitment, and retention
activities pursuant to Sec. 30.7(f).
\131\ Should the 95 percent (share of sponsors that will
identify underutilization and/or problem areas) fall over time, the
cost estimate of this provision will likely be an overestimate.
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We repeated this calculation for the following years using the
appropriate number of sponsors in any given year. The annualized cost
ranges from $936,998 (with 7 percent discounting) to $1.02 million
(with 3 percent discounting).
f. Affirmative Action Program Reviews
Affirmative action program reviews in the Final Rule result in
three additional activities beyond the baseline: personnel process
reviews, written affirmative action plan updates during compliance
reviews, and written affirmative action plan updates within three years
of compliance reviews (estimated to occur 2.5 years later in this
analysis). The Final Rule requires sponsors with five or more
apprentices to review personnel processes annually (Sec. 30.9).
Requiring this scheduled review of personnel processes emphasizes the
philosophy the Department intends to convey throughout the regulation
that affirmative action is not a mere paperwork exercise but rather a
dynamic part of the sponsor's management approach. Affirmative action
requires ongoing monitoring, reporting, and revision to address
barriers to EEO and to ensure that discrimination does not occur.
As required by the 1978 Final Rule (the analysis baseline),
sponsors with 5 or more apprentices in a registered apprenticeship
program are required to develop and maintain an affirmative action
program. The scope of each sponsor's program depends on the size and
type of its program and resources. However, each sponsor is required,
under the existing rule, to undertake a significant number of
appropriate activities to satisfy its affirmative action obligations.
The 1978 Final Rule lists examples of the kinds of activities expected,
including ``periodic auditing of the sponsor's affirmative action
programs and activities'' (29 CFR 30.4(c)(10)). We assume that, at the
very least, these program sponsors currently conduct this audit on an
annual basis because elsewhere in the 1978 Final Rule, sponsors are
required to review their affirmative action programs annually and
update them where necessary (29 CFR 30.8).
To calculate the cost of these three activities, the Department
first determined the cost of the baseline that is being replaced by the
Final Rule (annual affirmative action program reviews). The Department
calculated that all sponsors (25,231 in 2018) with 5 or more
apprentices (25 percent) currently incur 8 hours of HR manager labor
($73.90 per hour) to conduct the existing annual reviews. The cost of
the baseline in 2017 is $3.73 million (25,231 x 25 percent x 8 hours x
$73.90). This baseline is being replaced by less frequent affirmative
action program reviews and an annual personnel process review for all
sponsors (all of these provisions do not begin until the second year
(2018) due to the two-year phase-in).
To determine the cost of the new annual personnel process review,
the Department calculated the cost for all sponsors in 2018 (25,231)
with 5 or more apprentices (25 percent) to spend 8 hours of HR manager
labor conducting the review. This provision will result in an
undiscounted cost of $3.73 million in 2018 (25,231 x 25 percent x 8
hours x $73.90).
To determine the cost of the written affirmative action plan update
at the time of the compliance review, the Department calculated the
cost for all sponsors in 2018 (25,231) with 5 or more apprentices (25
percent) to spend 12 hours \132\ of HR manager labor every 5 years at
the time of the compliance review. With the existing compliance review
rate at 20 percent, this means that approximately one in five of these
sponsors will undergo a compliance review every year. This provision
will result in an undiscounted cost of $1.12 million in 2018 (25,231 x
25 percent x 12 hours x (\1/5\) x $73.90).
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\132\ A workforce analysis (1); a utilization analysis (2);
goal-setting (if necessary) (3); and a full update of the written
affirmative action plan (4) need to be undertaken at the compliance
review. Because we have already costed out (1), (2), and (3), the
sponsor would need additional 12 hours to fully update the written
affirmative action plan.
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To determine the cost of the written affirmative action plan update
within three years of the compliance review, the Department calculated
the cost for all sponsors in 2018 (25,231) with 5 or more apprentices
(25 percent) to spend 6 hours \133\ (estimated to be less because of
the lesser workload from not overlapping with the compliance review) of
HR manager time every 5 years. This provision results in an
undiscounted cost of $559,371 in 2018 (25,231 x 25 percent x 6 hours x
(\1/5\) x $73.90). We repeated this calculation for the following years
using the appropriate number of sponsors in any given year.
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\133\ A written affirmative action program review within three
years of compliance reviews contains (1) workforce analysis and (2)
updating the written affirmative action plan to include the updated
workforce analysis and a description of the review of personnel
practices and any changes made as a result of that review (see
30.9(b)). Because we have already costed out (1), the 6 hours are
for including updated the workforce analysis and a description of
the review of personnel practices and any changes made as a result
of that review (see 30.9(b)).
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The total cost of this provision is $1.68 million in 2018 ($559,371
+ $1.12 million + $3.73 million - $3.73 million). The annualized cost
ranges from $1.69 million to $1.75 million at 7 percent and 3 percent,
respectively.
g. Simplified Procedures for Selecting Apprentices
Under the 1978 Final Rule, selection of apprentices must be made
using one of four specific selection methods. Under the Final Rule
(Sec. 30.10), sponsors are required to adopt any method for the
selection of apprentices provided that
[[Page 92093]]
the method (1) complies with Uniform Guidelines on Employee Selection
Procedures (USGEP); (2) is uniformly and consistently applied to all
applicants and apprentices; (3) complies with the qualification
standards set forth in title I of the ADA; and (4) is facially neutral
in terms of race, color, religion, national origin, sex, sexual
orientation, age (40 or older), and disability. This approach greatly
simplifies the regulatory structure currently governing selection
procedures and affords sponsors greater flexibility in fashioning a
selection procedure; it also aligns this provision of part 30 with how
other equal opportunity laws regulate employers' use of selection
procedures.
Benefits
This provision, aimed at simplifying selection procedures, is
expected to reduce sponsors' cost of compliance because we expect that
sponsors will be able to more quickly and easily adopt a method for
selection consistent with how they currently select applicants or
employees under other EEO laws. Although this analysis did not quantify
any benefits under this provision, it is expected that this will result
in efficiencies for sponsors.
h. Standardizing Compliance Review Procedures for Registration Agencies
The Final Rule standardizes procedures Registration Agencies must
follow for conducting compliance reviews (Sec. 30.13). The provision
on compliance reviews carries forward the existing provision at Sec.
30.9 addressing compliance reviews and includes several modifications
to improve readability. First, the Final Rule revises the title from
``Compliance reviews'' to ``Equal employment opportunity compliance
reviews'' to clarify that the reviews are to assess compliance with the
part 30 regulations and not the companion regulations at part 29.
Second, the term ``Registration Agency'' is used throughout Sec.
30.13 instead of the term ``Department,'' because this section applies
to both the Department and to SAAs when conducting an EEO compliance
review.
Third, the Final Rule provides more specificity for the procedures
Registration Agencies must follow in conducting compliance reviews.
This increased specificity provides for greater consistency and
standardization of procedures across the National Registered
Apprenticeship System. For instance, Sec. 30.13(b) requires the
Registration Agency to notify a sponsor of any findings through a
written Notice of Compliance Review Findings within 45 days of
completing a compliance review. The Notice of Compliance Review
Findings must include whether any deficiencies (i.e., failures to
comply with the regulatory requirements) were found, how they are to be
remedied, and the timeframe within which the deficiencies must be
corrected. The Notice of Compliance Review Findings also must notify a
sponsor that sanctions may be imposed for failing to correct the
aforementioned deficiencies.
These changes add clarity to the procedures but do not
fundamentally change the process and, therefore, do not represent a
significant additional burden to sponsors or SAAs. The Department
believes the additional specificity will ease some of the burden on
States.
Sponsors are subject to onsite or offsite compliance reviews by
either the SAA or OA where the corresponding agency is expected to
notify the sponsor of the review findings. Although the notice of
compliance reviews already occurs with SAAs and OA, the Final Rule
makes the practice standard and common among all entities. Under the
Final Rule, the notice of review findings is required to be sent via
registered or certified mail, with return receipt requested within 45
days of the completed equal opportunity compliance review.
The costs associated with this provision are limited to the use of
registered mail, the materials, and the labor to send the letter. The
actual review process remains unchanged from the 1978 Final Rule. To
determine the cost of the notice of compliance reviews, we estimated
the labor cost to mail and compile the notice (assumed to be completed
by an administrative assistant) and the cost of materials to send the
notice. The labor cost is comprised of the time an administrative
assistant dedicates to the task (15 minutes, or 0.25 hour) multiplied
by the hourly compensation rate ($29.55 for SAAs and $30.68 for
OA).\134\ The total materials cost is the cost to send a letter via
registered mail ($12.20) plus the cost of the envelope ($0.07) plus the
cost to photocopy the one-page document ($0.08), or $12.35 ($12.20 +
$0.07 + $0.08).
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\134\ We calculated the hourly compensation rate for an
administrative assistant by multiplying the hourly wage of $18.82
(GS-7 step 5) by 1.57 for the State agency and 1.63 for the Federal
agency to account for public-sector employee benefits. Thus, the
hourly compensation rate for an administrative assistant at a State
agency is $29.55 ($18.82 x 1.57) and $30.68 ($18.82 x 1.63) at a
Federal agency.
---------------------------------------------------------------------------
To estimate the total cost of this provision in the first year, we
summed labor and material costs and then multiplied by the total number
of reviewed sponsors resulting in $46,997 for SAAs and $47,670 for
OA.\135\ We then repeated this calculation for each year of the
analysis period using the projected number of sponsors for each year.
The annualized cost to SAAs ranges from $56,499 (with 7 percent
discounting) to $57,163 (with 3 percent discounting) and the annualized
cost to OA ranges from $57,308 (with 7 percent discounting) to $57,981
(with 3 percent discounting).
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\135\ To calculate the labor cost, we multiplied the time
required by the hourly compensation rate, resulting in a cost of
$7.38 (0.25 x $29.55) for State Apprenticeship Agencies and $7.67
(0.25 x $30.68) for OA. We then multiplied each labor cost by the
percentage of sponsors subject to compliance reviews (20 percent)
and by 50 percent (we assumed that half of the sponsors respond to
SAAs and the rest respond to OA).
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i. Clarifying Complaint Procedures
In an effort to ensure consistency with how Registration Agencies
process complaints and conduct investigations, Sec. 30.14(c) adds
uniform procedures that Registration Agencies must follow. These
uniform procedures ensure that Registration Agencies acknowledge and
thoroughly investigate complaints in a timely manner, that parties are
notified of the Registration Agency's findings, and that the
Registration Agency attempts to quickly resolve violations. Since the
complaint process is not a new process, the Department does not expect
that these provisions will add significantly to the burden on
Registration Agencies; they simply standardize the procedures and
define a timeline. Therefore, while the Department does not expect
significant changes in burden, there may still be negligible one-time
costs as Registration Agencies adjust their complaint procedures to
reflect newly standardized requirements. These procedures will benefit
both sponsors and apprentice complainants since claims will be handled
in a clear and consistent fashion.
j. Adopting Uniform Procedures Under 29 CFR Parts 29 and 30 for
Deregistration, Derecognition, and Hearings
The Final Rule generally aligns part 30 with part 29 procedures for
deregistration of apprenticeship programs, derecognition of SAAs, and
hearings (Sec. Sec. 30.15 through 30.16). For consistency and
simplicity, Sec. 30.15(c) adopts the deregistration procedures of
Sec. 29.8(b)(5) through (8) of this title, including the hearing
procedures in Sec. 29.10. This revision a more closely aligned set of
procedures for matters arising from management of the
[[Page 92094]]
National Registered Apprenticeship System. These provisions are not
expected to impose a burden because SAAs are already following these
procedures in part 29.
k. Invitation To Self-Identify as an Individual With a Disability
The Final Rule under Sec. 30.11 requires sponsors with 5 or more
apprentices to invite applicants for apprenticeship to voluntarily
self-identify as an individual with a disability protected by this part
at two stages: (1) At the time they apply or are considered for
apprenticeship; and (2) after they are accepted into the apprenticeship
program but before they begin their apprenticeship. Within the first
two years of the program, existing sponsors will be required to survey
their current apprentices.
The purpose of this section is to collect important data pertaining
to the participation of individuals with disabilities in the sponsor's
applicant pools and apprenticeship program. This data will allow the
sponsor and the Department to better identify and monitor the sponsor's
enrollment and selection practices with respect to individuals with
disabilities and also enable the Department and the sponsor to assess
the effectiveness of the sponsor's recruitment efforts over time, and
to refine and improve the sponsor's recruitment strategies, where
necessary. In addition, data related to apprentices once they are in
the program will help sponsors assess whether there may be barriers to
equal opportunity in all aspects of apprenticeship and may improve the
effectiveness of retention strategies or help sponsors evaluate whether
such strategies are necessary.
Within the first two years of this program, sponsors with 5 or more
apprentices will need to survey their current workforce with the
invitation to self-identify. The Department assumed that sponsors would
survey their current workforce for the first time in 2018 and
calculated that sponsors (33,939 in 2018) with 5 or more apprentices
(25 percent) will survey an average of 41 apprentices with an
invitation to self-identify provided by the Department.\136\ The
Department estimated that it would take an apprentice ($18.72 per hour)
5 minutes (0.08 hours) to complete the form. Furthermore, an
administrative assistant ($23.10 per hour) would need to spend 0.5 hour
annually to record and keep the forms. This provision has a cost in
2018 of $458,811 ((25,231 x 25 percent x 41 x 0.08 hour x $18.72) +
(25,231 x 25 percent x 0.5 hour x $23.10)).
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\136\ The average number of apprentices at sponsors with 5 or
more apprentices using 2015 RAPIDS data was 33 in 2015 Over the 10-
year analysis period, the Department assumed that the average number
of apprentices for sponsors with 5 or more apprentices would grow at
the same rates that were estimated for all sponsors. The Department
estimated that there are on average 38 apprentices per sponsor with
5 or more apprentices in 2017; 41 in 2018; 42 in 2019; 44 in 2020;
46 in 2021; 49 in 2022; 50 in 2023; 50 in 2024; 52 in 2025; and 53
in 2026.
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In subsequent years, all sponsors with 5 or more apprentices will
be required to administer the invitation to self-identify twice: Once
to all applicants prior to the offer of apprenticeship, and once after
the offer of apprenticeship to those who have been extended offers. The
Department estimates that sponsors post 42 positions in 2019 and
receive 15 applicants per posting.\137\ Of those positions, the
Department estimated that 42 offers of enrollment are made and 42
apprentices choose to enroll in 2019. This requirement has an
undiscounted cost in 2019 of $6.84 million (26,606 x 25 percent x ((15
applications x 42 job listings x .08) + (42 offers of apprenticeship x
.08)) x $18.72 + 26,606 x 25 percent x 0.5 x $23.10). For the 10-year
analysis period, this provision has an annualized cost of $6.54 million
and $6.91 million (at 7 percent and 3 percent discounting,
respectively).\138\ In addition, sponsors with 5 or more apprentices
are required to remind apprentices yearly that they can update their
invitation to self-identify. The Department assumed that these sponsors
would send out an annual reminder email beginning in 2018 at the cost
of $12,292 (25,231 x 0.25 percent x 0.08 hour x $23.10). We repeated
this calculation for each remaining year in the analysis period using
the estimated number of sponsors for each year. This provision in total
has an annualized cost of $4.53 million and $4.76 million (at 7 percent
and 3 percent discounting, respectively).
---------------------------------------------------------------------------
\137\ The Department determined the number of positions posted
from conversations with programs of various sizes. We determined
that that the largest, statewide programs post more than 15 jobs,
but the Department used this as an average for all apprentices to
avoid under-estimating the costs.
\138\ It is assumed that there will be 100 percent participation
in the invitation to self-identify and therefore, the cost of this
provision is likely overestimated.
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l. Other
The Final Rule will result in three additional costs. First, SAAs
will be required to revise their State equal opportunity plan to
conform to the new requirements. Second, the Final Rule will create an
intermediary step between a registered sponsor and a deregistered
sponsor (registration suspension). Third, sponsors will likely hire or
retain more qualified apprentices with disabilities under the Final
Rule and this may result in additional costs of providing appropriate
job accommodations.
Revision of State Equal Opportunity Plan
The process of updating a State equal opportunity plan may
potentially involve various different people at different stages of
implementation. Updating the plan will include drafting the new plan
and completing all administrative procedures that may apply, such as
revisions to a State's apprenticeship law or policy that may require a
public notice and comment period, training for SAA staff on the revised
State EEO Plan, and outreach to program sponsors to inform them of the
relevant aspects of the revised State EEO plan once it has been
approved by the Department. The updates to State equal opportunity
plans include changing language and existing requirements such that
they align with the regulatory changes herein. To calculate the costs,
the Department assumed that the process to revise the State equal
opportunity plan will take a full year of effort (2,080 hours) to
complete.\139\ This is the Department's best estimate for updating the
existing State equal opportunity plan. For simplicity, we assumed that
an SAA human resource manager will complete the task at an hourly
compensation rate of $62.33.\140\ This amounts to a one-time cost of
$3.24 million in the first year (2,080 hours x $62.33 x 25).\141\
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\139\ Note that this calculation is only the administrative
costs of updating the State equal opportunity plan, as opposed to
the costs of implementing the new plan, or any new burdens on State
Agencies. Since the updated State equal opportunity plan should
reflect the Federal regulations, these costs should be accounted for
and addressed elsewhere in the analysis under discussions of costs.
\140\ We calculated the hourly compensation rate for a human
resource manager at a State agency by multiplying the hourly wage of
$39.70 (GS-13 step 5) by 1.57 for the State agency. The hourly
compensation rate for a human resource manager at a State agency is
thus $62.33 ($39.70 x 1.57).
\141\ The estimated time to complete the revisions is 12 months
(2,080 hours). The 2017 calculation used the hourly compensation
rate for a state human resource manager ($62.33) multiplied by 2,080
(the assumed number of work hours in a year) and by the total number
of State Apprenticeship Agencies (25) to obtain a total cost of
$3.24 million (2,080 x $62.33 x 25). This cost only accrues in the
first year of the ten-year analysis period.
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Intermediate Step Between a Registered Sponsor and a Deregistered
Sponsor
The Final Rule creates an intermediary step regarding suspending
new apprentices before deregistration proceedings are instituted (Sec.
30.15(b)). Currently, deregistration of an
[[Page 92095]]
apprenticeship program occurs when the sponsors fails to demonstrate
compliance with the 1978 Final Rule. The new suspension step allows
sponsors an adequate span of time to update their practices and be in
compliance without having to be deregistered and then reregistered at a
later date. Under this procedure, a Registration Agency may suspend a
registration of new apprentices until the sponsor has achieved
compliance with part 30 through the completion of a voluntary
compliance action plan or until deregistration proceedings are
initiated by the Registration Agency.
The intermediary step represents a benefit because it allows
sponsors to comply without having to be deregistered and then
reregister or abandon their program. The benefits of this provision are
difficult to quantify because some programs eligible for deregistration
may seek deregistration voluntarily.
Workplace Accommodations for Apprentices With Disabilities
The Final Rule prohibits discrimination against individuals with
disabilities and requires sponsors to take affirmative action to
provide equal opportunity in apprenticeship to qualified individuals
with disabilities. With respect to the sponsor's duty to ensure non-
discrimination based on disability, the sponsor must provide necessary
reasonable accommodations to ensure applicants and apprentices with
disabilities receive equal opportunity in apprenticeship. Since most,
if not all, sponsors already are subject to the ADA as amended, and if
a Federal contractor to section 503 of the Rehabilitation Act, sponsors
already have a duty under existing law to provide reasonable
accommodations for qualified individuals with disabilities, and thus
there is no new burden associated with any duty to provide reasonable
accommodation under part 30, as that duty already exists under Federal
law. For any sponsor that may not already be required under the law to
provide such accommodations (e.g., any sponsor with fewer than 15
employees would not be covered by the ADA), we expect the resulting
burden to be small. A recent study conducted by the Job Accommodation
Network (JAN), a service of the Department's Office of Disability
Employment Policy (ODEP), shows that the majority of employers in the
study (57 percent) reported no additional accommodation costs and the
rest (43 percent) reported one-time costs of $500 on average.\142\ This
study shows that the benefits to employers, such as improving
productivity and morale, retaining valuable employees, and improving
workplace diversity, outweigh the low cost.
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\142\ Beth Loy, ``Accommodation and Compliance Series Workplace
Accommodations: Low Cost, High Impact,'' Job Accommodation Network
(2014), http://askjan.org/media/lowcosthighimpact.html.
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4. Summary of Cost-Benefit Analysis
Exhibit 3 presents a summary of the first-year costs of the Final
Rule, as described above. As shown in the exhibit, the total first-year
cost of the Final Rule is $42.88 million. The Department was able to
only quantify benefits (i.e., cost-savings) of the Final Rule resulting
from the benefit from more efficient utilization analysis and goal
setting by the Department. The Department estimated that this time
saving yield $4.56 or $5.83 million in benefits over the 10-year period
(with 7 percent and 3 percent discounting, respectively).
[[Page 92096]]
[GRAPHIC] [TIFF OMITTED] TR19DE16.000
Exhibit 4 presents a summary of the monetized costs and benefits
associated with the Final Rule over the 10-year analysis period. The
monetized costs and benefits displayed are the yearly summations of the
calculations described above. Costs and benefits are presented as
undiscounted 10-year totals, and as present values with 7 and 3 percent
discount rates.
[GRAPHIC] [TIFF OMITTED] TR19DE16.001
[[Page 92097]]
Primary estimates of the 10-year monetized costs of the Final Rule
are $370.27 million and $458.90 million (with 7 and 3 percent
discounting, respectively). The 10-year monetized benefits of the Final
Rule are estimated at $4.56 million or $5.83 million (with 7 and 3
percent discounting, respectively).\143\
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\143\ The Department believes that the overhead costs associated
with the Final Rule are small because the additional activities
required by the Final Rule will be performed by existing employees
whose overhead costs are already covered. The Department
acknowledges that it is possible that additional overhead costs
might be incurred, however, and has conducted a sensitivity analysis
by calculating the impact of more significant overhead costs (an
overhead rate of 17 percent). This rate, used by the U.S.
Environmental Protection Agency (EPA) in its final rules (see, for
example, EPA Electronic Reporting under the Toxic Substances Control
Act Final Rule, Supporting and Related Material), is based on a
Chemical Manufacturers Association study. An overhead rate from
chemical manufacturing might not be appropriate for all industries,
so there may be substantial uncertainty concerning the estimates
based on this illustrative example. Over the 10-year period, using
an overhead rate of 17 percent would increase the total cost of the
Final Rule from $370.27 million to $433.11 million and from $458.90
million to $536.79 million (with 7 and 3 percent discounting,
respectively). For the reasons stated above, the Department believes
this estimate overestimates the additional costs arising from
overhead costs while recognizing that there is not one uniform
approach to estimating the marginal cost of labor.
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Due to data limitations, the Department did not quantify several
important benefits to society provided by the Final Rule. The Final
Rule is expected to result in several overarching benefits to
apprenticeship programs and specific benefits resulting from a clearer,
more systematic rule. As discussed above, equal opportunity policies
may lead to both efficiency gains and distributional impacts for
society. The Final Rule may reduce barriers to entry in apprenticeship
programs for women, minorities, and individuals with disabilities,
fostering a distributional effect, and may alleviate the inefficiencies
in the job market these barriers create. It may also benefit
businesses, as discussed above.
The Final Rule focuses on making the existing EEO policy consistent
and standard across the National Registered Apprenticeship System. In
doing so, several tasks already undertaken by sponsors, apprentices,
and Registration Agencies have been simplified. For instance, the
clarified complaint process better informs apprentices, sponsors, and
Registration Agencies of their roles and expectations. The Final Rule
also develops a simpler methodology for the apprentice selection
process and offers sponsors the flexibility to choose a mechanism that
aligns with their State's specific equal opportunity regulations. Much
of the new language provides consistency with existing equal
opportunity laws and part 29 already applicable to these affected
entities. Finally, the Final Rule streamlines procedures already in
place under the 1978 Final Rule.
5. Regulatory Alternatives
In addition to the Final Rule, the Department has considered four
regulatory alternatives: (a) Take no action, that is, to leave the 1978
Final Rule intact; (b) increase the Department's enforcement efforts of
the 1978 Final Rule; (c) apply the same affirmative action requirements
set forth in this rule to all sponsors, regardless of size; and (d)
rely on individuals participating in the National Registered
Apprenticeship System to identify and report to Registration Agencies
potential cases of discrimination based on race, color, religion,
national origin, sex, sexual orientation, age (40 or older), genetic
information, and disability.
The Department conducted economic analyses of the four alternatives
to better understand their costs and benefits and the implied tradeoffs
(in terms of the costs and benefits that would be realized) relative to
the Final Rule. Below is a discussion of each alternative along with an
estimation of their costs and benefits. All costs and benefits use the
1978 Final Rule as the baseline for the analysis. Finally, we summarize
the total costs and benefits of each alternative.
a. Take No Action
This alternative yields no additional costs to society because it
does not deviate from the baseline, that is, the 1978 Final Rule. This
alternative, however, also yields no additional benefits in terms of
ensuring equal opportunities for women, minorities, individuals with
disabilities, LGBT individuals, and those ages 40 or older.
b. Increase Enforcement of Original Regulation
This alternative maintains the original 1978 Final Rule but
increases the monitoring of apprenticeship programs. This alternative
increases the burden on the SAAs and the Department to enforce the
equal opportunity standards. To determine the cost of this alternative,
we assumed that the frequency of compliance reviews will increase by 50
percent, implying that sponsors would be evaluated by the Registration
Agency (the Department or SAAs) on a more frequent basis. With the
existing compliance review rate at 20 percent--meaning that
approximately one in five sponsors undergoes a compliance review every
year--a 50 percent increase would constitute an extra 10 percent of
sponsors (20 percent x 0.5) undergoing compliance reviews each year for
a total of 30 percent of sponsors (20 percent + 10 percent) undergoing
annual compliance reviews.
To calculate the cost of this alternative, the Department assumed
that each compliance review takes 40 hours to complete. This estimate
includes time for preparation, conducting the review, writing up the
findings and guidance to sponsors, reviewing and approving the final
documents to be provided to sponsors, and providing technical
assistance, where appropriate. We multiplied the 40 hours needed to
complete a review by the increase in the annual number of reviews by 10
percent (2,381 = 23,811 x 10 percent in 2017) by the hourly
compensation rate of an SAA human resource manager ($62.33) and by the
hourly compensation rate of an OA human resource manager ($64.71).\144\
We also multiplied this number by 50 percent, assuming that half of the
sponsors report to a SAA and half report to OA. The cost of increased
compliance reviews in the first year is $2.97 million for SAAs (23,811
x 50 percent x $62.33 x 40 x 10 percent) and $3.08 million for OA
(23,811 x 50 percent x $64.71 x 40 x 10 percent). The annualized costs
range from $3.57 million to $3.61 million for SAAs (with 7 and 3
percent discounting, respectively) and from $3.70 million to $3.75
million for OA (with 7 and 3 percent discounting, respectively). The
10-year costs for this alternative range from $51.08 million to $62.77
million (with 7 and 3 percent discounting, respectively).
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\144\ We calculated the hourly compensation rate for a human
resource manager at OA by multiplying the hourly wage of $39.70 (GS-
13 step 5) by 1.63 to account for public-sector employee benefits.
The hourly compensation rate for a human resource manager at a
Federal agency is thus $64.71 ($39.70 x 1.63).
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Exhibit 5 presents a summary of the monetized costs of this
alternative option over the 10-year analysis period. Costs are
presented as undiscounted 10-year totals, and as present values, using
7 percent and 3 percent discount rates.
[[Page 92098]]
[GRAPHIC] [TIFF OMITTED] TR19DE16.002
Increasing monitoring and evaluation of current efforts will
increase administrative costs to the Department and may improve
compliance to the existing requirements, but it would not modernize the
rule to be consistent with current law affecting workers with
disabilities and older workers. Therefore this would not be a preferred
option, as it excludes a major area of focus for the Department:
Improving access to good jobs for individuals with disabilities, such
as those offered by Registered Apprenticeship opportunities.
c. Apply the Same Affirmative Action Policy to All Sponsors Regardless
of Size
The 1978 Final Rule and the Final Rule require that all sponsors
with five or more apprentices maintain and update their AAPs. This
alternative would apply the same AAP to all sponsors regardless of
size. The Department believes that the incremental benefit of this
action would be minimal compared to its incremental cost. This policy
directly impacts the segment of the population that both qualifies as a
small entity and also has few apprentices. Sponsors of small
apprenticeship programs often have very few employees. Such sponsors
would likely be overly burdened by the targeted outreach, recruitment,
and retention requirements in Sec. 30.8. For example, they might not
have the staff and resource capacity to adequately conduct outreach to
multiple organizations.
We believe that the original 1978 Final Rule restriction of
requiring only those sponsors with five or more apprentices to develop,
maintain, and update their AAPs is an appropriate way to not
disproportionately burden small entities.
To calculate the cost and benefits of this alternative, the
Department completed the same calculations conducted for the Final Rule
but increased the number of sponsors who have to establish an AAP. This
new calculation assumed that all sponsors must determine utilization
rates and underutilization and participate in targeted outreach and
recruitment.
To calculate the costs associated with this alternative, we first
calculated the cost for all sponsors to complete the utilization
analysis. As discussed above, we assumed this process takes 0.5 hour of
a human resource manager's time at an hourly compensation rate of
$73.39. We then divided the number of sponsors by 5 years to reflect
that new utilization analyses occur approximately every five years. The
resulting cost in 2019 is $196,618 ((0.5 x $73.90 x 26,606)/5). We
repeated this calculation for each remaining year in the analysis
period using the estimated number of sponsors for each year, resulting
in an annualized cost ranging from $164,939 (with 7 percent
discounting) to $173,394 (with 3 percent discounting).
To quantify the cost associated with sponsor familiarization with
the data tool for the utilization analysis, the Department assumed that
all sponsors (25,231 in 2018) will incur one hour of HR manager labor
($73.90 per hour) to familiarize the organization with the tool. This
is estimated to have a cost of $1.86 million in 2018 (25,231 x $73.90 x
1). We repeated this calculation for the following years only for new
sponsors to the program who will still need to acclimate themselves
with the tool. This provision has an annualized cost of $392,786 (with
7 percent discounting) and $373,391 (with 3 percent discounting).
Once the data tool is developed, the Department estimates it will
take one hour for a GS-13 employee ($64.71 per hour) to conduct a
utilization analysis for sponsors with fewer than 5 apprentices. This
will result in a cost to the Department of $258,251 in 2019 (26,606 x
75 percent x 1 hour x $64.71/5) and an annualized cost ranging from
$216,642 (with 7 percent discounting) to $178,378 (with 3 percent
discounting).
The Department next calculated the costs for all sponsors to
conduct a workforce analysis. All sponsors with five or more
apprentices must conduct the first new workforce analysis within two
years of the Final Rule's effective date and every 2.5 years after
that. For these sponsors, this process is expected to take 2 hours of
an HR manager's time ($73.90 per hour) in 2018 compared to a baseline
of 1 hour of an HR manager's time. We multiplied this 1 hour by an HR
manager's wage and by 25 percent of active sponsors, resulting in a
cost of $466,143 ((25,231 x 25 percent x 1 hour x $73.90). For sponsors
with fewer than five apprentices, this process is expected take 2 hours
of an HR manager's time ($73.90 per hour) and they are currently not
required to conduct a workforce analysis. We multiplied $73.90 by 75
percent of active sponsors and 2 hours for sponsors with fewer than 5
apprentices. The
[[Page 92099]]
resulting cost in 2018 is $2.80 million ((25,231 x 75 percent x 2 hours
x $73.90) and the total cost for all sponsors in 2018 is $3.26 million
($466,143 + $2.80 million).
In subsequent years after 2018, for sponsors with five or more
apprentices, this process is expected to take 2 hours of an HR
manager's time ($73.90 per hour) every 2.5 years compared to a baseline
of 1 hour of an HR manager's time annually, for a net saving of 0.2
hour per year. We multiplied this 0.2 hour by an HR manager's wage and
by 25 percent of active sponsors, resulting in cost savings in 2019--
the first year in which new workforce analyses will be conducted--of
$98,309 ((26,606 x 25 percent x 0.2 hour x $73.90). For sponsors with
fewer than five apprentices, this process is expected take 2 hours of
an HR manager's time ($73.90 per hour) every 2.5 years and they are
currently not required to conduct a workforce analysis. We multiplied
$73.90 by 75 percent of active sponsors and 2 hours, dividing by 2.5
years to reflect that the new workforce analyses occur approximately
every two and a half years. The resulting cost in 2019 is $1.18 million
((26,606 x 75 percent x 2 hours x $73.90)/2.5).
The cost for all sponsors to conduct a workforce analysis in 2019
is $1.08 million ($1.18 million less $98,309). This calculation was
repeated in subsequent years, resulting in an annualized cost ranging
from $1.31 million to $1.32 million with 7 percent and 3 percent
discounting, respectively.
We next calculated the costs of expanding the requirements for all
apprenticeship sponsors to conduct targeted outreach. The cost of
targeted outreach and recruitment mirrors the cost above except that we
no longer scale it by the 25 percent of sponsors. We again assumed that
each sponsor contacts five organizations; that a human resource manager
would take 30 minutes (0.5 hour) to complete this task at an hourly
compensation rate of $73.90; and that an administrative assistant would
spend 30 minutes (0.5 hours) at an hourly compensation rate of $23.10.
The cost of this provision per affected sponsor is the time each
staff member devotes to this task multiplied by their associated hourly
compensation rates. This calculation resulted in a labor cost of $48.50
(($73.90 x 0.5) + ($23.10 x 0.5)) per source. We then multiplied this
labor cost by the number of outreach sources (5); the number of
sponsors (26,606 in 2019); 95 percent for sponsors whose utilization
analyses revealed underutilization; and 20 percent for sponsors who
undergo compliance review each year. This calculation results in a
total cost of $1.23 million in 2019 ($48.50 x 5 x 26,606 x 95 percent x
20 percent). We repeated this calculation for each remaining year in
the analysis period using the estimated number of sponsors for each
year, resulting in an annualized cost ranging from $3.75 million to
$4.07 million with 7 percent and 3 percent discounting, respectively.
Within the first two years of this program, all sponsors will need
to survey their current workforce with the invitation to self-identify.
The Department calculated that sponsors (25,231 in 2018) will survey an
average of 26 apprentices with an invitation to self-identify provided
by the Department. The Department estimated that it would take an
apprentice ($18.72 per hour) 5 minutes (0.08 hours) to complete the
form. Furthermore, an administrative assistant ($23.10 per hour) would
need to spend 0.5 hour annually to record and keep the forms. This
provision has a cost of $1.27 million in 2018 ((25,231 x 26 x 0.08 hour
x $18.72) + (25,231 x 0.5 hour x $23.10)).
In subsequent years, all sponsors will be required to administer
the invitation to self-identify twice: once to all applicants prior to
the offer of apprenticeship, and once after the offer of apprenticeship
to those who have been extended offers. The Department estimates that
sponsors post 27 positions per year and receive 15 applicants per
posting in 2019. Of those positions, the Department estimated that 27
offers of enrollment are made and 27 apprentices choose to enroll. This
requirement has an undiscounted second year (2019) cost of $17.47
million (26,606 x ((15 applications x 27 job listings x .08) + (27
offers of apprenticeship x .08)) x $18.72 + 26,606 x 0.5 x $23.10). For
the 10-year analysis period, this provision has an annualized cost of
$16.76 million and $17.71 million (at 7 percent and 3 percent
discounting, respectively).\145\ In addition, all sponsors are required
to remind apprentices yearly that they can update their invitation to
self-identify. The Department assumed that sponsors would send out an
annual reminder email beginning in 2018 at the cost of $49,168 (25,231
x 0.08 hour x $23.10). We repeated this calculation for each remaining
year in the analysis period using the estimated number of sponsors for
each year. This provision in total has an annualized cost of $16.80
million and $17.75 million (at 7 percent and 3 percent discounting,
respectively).
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\145\ It is assumed that there will be 100 percent participation
in the invitation to self-identify and therefore, the cost of this
provision is likely overestimated.
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Lastly, we calculated the cost of affirmative action plan reviews
for all sponsors. Assuming a two-year phase-in and the same time
requirements for each element of the review, we estimate that, in 2018,
the personnel process review will cost $14.92 million (25,231 x 8 hours
x $73.90), the written affirmative action program review at the time of
the compliance review will cost $4.47 million ((25,231 x 12 hours x
$73.90)/5 years between reviews), and the written affirmative action
program review conducted within three years of the compliance review
will cost $2.24 million ((25,231 x 6 hours x $73.90)/5 years between
reviews) for a total cost of $21.63 million. We repeated this
calculation for each remaining year in the analysis period using the
estimated number of sponsors for each year, resulting in an annualized
cost ranging from $21.82 million to $22.50 million with 7 percent and 3
percent discounting, respectively.
The remaining costs for this alternative are the same as for the
Final Rule. The total 10-year costs of this alternative range from
$589.29 million to $736.27 million (with 7 percent and 3 percent
discounting, respectively).
d. Rely on Individuals Participating in the National Registered
Apprenticeship System To Identify and Report Potential Cases of
Discrimination
Under this alternative, individuals participating in the National
Registered Apprenticeship System would be responsible for identifying
and reporting potential cases of discrimination to Registration
Agencies, in contrast to both the existing and the Final Rule's part 30
regulatory structures, which require Registration Agencies to monitor
and enforce the EEO and affirmative action obligations via regular
compliance reviews. This alternative reduces the burden on sponsors by
relying on a complaint-based system.
Under this alternative, apprentices' rights for non-discrimination
would still be protected, but Registration Agencies would have a more
passive role in how they monitor and evaluate program sponsors'
compliance with the regulations. OA and SAAs would still conduct
compliance reviews (in Sec. 30.11 and existing Sec. 30.9) but not as
frequently.
Under this alternative, to identify when discrimination may be
occurring and whether sponsors are violating the non-discrimination and
affirmative action requirements in the part 30 regulations, the
Registration Agencies
[[Page 92100]]
would primarily rely on: (1) The complaints filed under Sec. 30.12 and
existing Sec. 30.11 and self-evaluations from sponsors, and (2) a
process where sponsors conduct a self-evaluation and report back to the
Registration Agency. The Department believes that this approach to
regulating discrimination and non-compliance with the part 30
regulations would not adequately prevent discrimination and promote
equal opportunity in apprenticeship programs.
Registration Agencies under this alternative would provide sponsors
with a format and process to conduct a self-evaluation relative to
their compliance with these EEO regulations. Sponsors would then submit
their self-evaluation to the Registration Agency for review and
analysis. If the Registration Agency is satisfied with the findings
from the self-evaluation, the sponsor would be informed accordingly,
and no additional actions would be necessary at that time. If the
Registration Agency's review of sponsor's self-evaluation identifies
deficiencies, then the Registration Agency would conduct an on-site
review and provide technical assistance as appropriate.
These complaints and self-evaluations would serve as a ``trigger''
for Registration Agencies to adopt a more active role of visiting
program sites to conduct compliance reviews and provide technical
assistance, as appropriate.
The Department assumes that the SAA and OA would reduce the number
of compliance reviews by 20 percent. To calculate this cost savings, we
multiplied the total number of sponsors (23,811 in 2017) by the
percentage decrease in reviews. This results in 952 fewer reviews in
the first year (23,811 x 20 percent x 20 percent). We then multiplied
the total number of reviews by 50 percent assuming that the SAAs handle
half the reviews and OA handles the remaining half. Finally, we
multiplied the total reduction in reviews for each agency (476 = 0.5 x
952) by the hours needed to complete each review (40 hours) and by the
human resource managers' wages ($62.33 and $64.71 per hour for the SAAs
and OA respectively). The resulting cost savings in the first year is
$1.19 million (476 x $62.33 x 40) for SAAs and $1.23 million (476 x
$64.71 x 40) for OA. We repeated this calculation for each year using
the projected number of sponsors in each year. This results in an
annualized savings for the SAAs of $1.42 million (with 7 percent
discounting) to $1.44 million (with 3 percent discounting) and $1.48
million (with 7 percent discounting) to $1.50 million (with 3 percent
discounting) for OA.
To estimate the cost of completing the self-evaluations, the
Department assumes that each sponsor completes one evaluation each year
and that the sponsor will dedicate 8 hours to complete this review. We
multiplied this labor time by the hourly compensation rate of a human
resource manager ($73.90) and by the total number of sponsors (23,811).
The cost to the sponsors is thus $14.08 million (23,811 x 1 x 8 x
$73.90) in 2017. This calculation was repeated according to the
projected number of sponsors each year, with an annualized cost ranging
from $16.92 million (with 7 percent discounting) to $17.12 million
(with 3 percent discounting).
The self-evaluations will then be reviewed by either the SAAs or
OA. The Department calculates this burden by assuming that half of the
evaluations are completed by the SAAs and the rest are completed by OA;
thus each agency reviews 11,906 (23,811 x 50 percent) evaluations in
the first year. We multiplied the number of self-evaluations by the
time needed to review the evaluation, 5 hours, and finally by the
corresponding hourly compensation rates ($62.33 and $64.71 for the SAAs
and OA, respectively). The cost in 2017 is $3.71 million for the SAAs
and $3.88 million for OA. This calculation was repeated according to
the projected number of sponsors each year, with an annualized cost of
$4.49 million (with 7 percent discounting) to $4.54 million (with 3
percent discounting) for SAAs and $4.66 million (with 7 percent
discounting) to $4.71 million (with 3 percent discounting) for OA.
Lastly, the Department estimated the cost of completing and
reviewing the individual complaints. The apprentices would be filling
out these individual complaints and although the process existed in the
1978 rule, the Department expects that through general outreach the
number of complaints would increase by 100 per year. We assumed that
each individual complaint takes 15 minutes to file (0.25 hours). We
then multiplied the 0.25 hours by the hourly compensation rate for an
apprentice ($18.72) to estimate a labor cost of $4.68 and a total cost
of $468 ($4.68 x 100) each year of the analysis period.\146\
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\146\ We calculated the hourly compensation rate for an
apprentice by multiplying the median hourly wage of $13.00 (as
published by PayScale for an apprentice electrician) by 1.43 to
account for private-sector employee benefits (source: OES survey).
Thus, the hourly compensation rate for an apprentice is $18.59
($13.00 x 1.43).
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The Department again assumed that half of these complaints go to
SAAs and half go to OA, or 50 complaints total for each agency. To
calculate the cost, we multiplied the time needed to review each
complaint (8 hours) by 50 complaints and by the compensation rate for a
human resource manager. The resulting cost in 2017 is $24,932 (50 x 8 x
$62.33) for the SAAs and $25,884 (50 x 8 x $64.71) for OA. This
calculation was repeated for the nine remaining years in the analysis
period. The total 10-year costs of this alternative range from $183.08
million to $224.95 million (with 7 percent and 3 percent discounting,
respectively).
e. Summary of Alternatives
Exhibit 6 below summarizes the monetized benefits, costs, and net
present values for the alternatives discussed above. We again use
discount rates of 3 and 7 percent, respectively, to estimate the
benefits, costs, and net present values of the alternatives over the
10-year analysis period.
[[Page 92101]]
[GRAPHIC] [TIFF OMITTED] TR19DE16.003
Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601 et seq.,
as amended by the Small Business Regulatory Enforcement Fairness Act of
1996, Public Law 104-121 (March 29, 1996), requires federal agencies
engaged in rulemaking to consider the impact of their proposals on
small entities, consider alternatives to minimize that impact, and
solicit public comment on their analyses.\147\ The RFA requires the
assessment of the impact of a regulation on a wide range of small
entities, including small businesses, not-for-profit organizations, and
small governmental jurisdictions.
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\147\ Public Law 96-354 (Sept. 19, 1980), Public Law 104-121
(March 29, 1996).
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Agencies must perform a review to determine whether a proposed or
final rule would have a significant economic impact on a substantial
number of small entities. 5 U.S.C. 603 and 604. As part of a regulatory
proposal, the RFA requires a federal agency to prepare, and make
available for public comment, an initial regulatory flexibility
analysis that describes the impact of the proposed rule on small
entities. Id. at 603(a). When an agency expects that a proposed rule
will not have a significant economic impact on small entities, or the
number of small entities impacted would be less than substantial, the
agency may certify those results to the Chief Counsel for Advocacy of
the Small Business Administration (SBA). Id. at 605(b). The
certification must include a statement providing the factual basis for
the agency's determination. Id.
Based on the analysis below, the Department has notified the Chief
Counsel for Advocacy, SBA, under the RFA at 5 U.S.C. 605(b), and
certifies that this rule will not have a significant economic impact on
a substantial number of small entities.
1. Classes of Small Entities
A small entity is one that is independently owned and operated and
that is not dominant in its field of operation. 5 U.S.C. 601(3); 15
U.S.C. 632. The definition of small entity
[[Page 92102]]
varies from industry to industry to properly reflect industry size
differences. 13 CFR 121.201. An agency must either use the SBA
definition for a small entity or establish an alternative definition
for the industry. Using SBA size standards, the Department has
conducted a small entity impact analysis on small entities in the five
industry categories with the most registered apprenticeship programs
and for which data were available: Construction, Manufacturing,
Service, Transportation and Communication, and Trade.\148\ These top
five industry categories account for 86 percent of the total number of
apprenticeship sponsors who had active apprenticeships in FY 2015.\149\
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\148\ According to RAPIDS, the percent of programs (of all
sizes) in the selected sectors in 2015 were as follows:
Construction, 40.2 percent; Manufacturing, 26.7 percent; Service,
8.6 percent; Transportation and Communication, 7.3 percent; and
Trade, 2.7 percent.
\149\ RAPIDS includes a portion of all registered apprenticeship
programs and apprentices nationwide because SAAs that are recognized
by the Department of Labor to serve as the Registration Agency may
choose, but are not required, to participate in RAPIDS. Therefore,
RAPIDS includes individual level apprentice and apprenticeship
program data for the 25 states in which OA is the Registration
agency and 7 SAAs that participate in RAPIDS. Therefore, RAPIDS
includes data from 32 of the 50 states and the Department estimates
that they represent 55 to 60 percent of all sponsors and 50 to 55
percent of all apprentices. We assume that our data set is a good
predictor of the population of apprenticeship programs nationwide.
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One industry, Public Administration, made the initial top-five list
but is not included in this analysis because no data on the revenue of
small local jurisdictions were available. Local jurisdictions are
classified as small when their population is less than 50,000. 5 U.S.C.
601(5).
Registered apprenticeship program sponsors may be employers,
employer associations, industry associations, or labor management
organizations and, thus, may represent businesses, multiple businesses,
and not-for-profit organizations. The requirements of the Final Rule,
however, fall on the sponsor, and therefore we used sponsor data to
create the industry breakdowns.
The Department has adopted the SBA small business size standard for
each of the five industry categories. Since the industry categories
include multiple NAICS sectors, some industry categories will reflect
multiple SBA definitions. We accounted for industries included in each
industry category. In broader NAICS categories, such as Manufacturing
(NAICS 31-33), the SBA has designated different standards for each six-
digit NAICS code within the larger category. The Department recorded
these narrower standards in its analysis; in this document, we offer
the lowest and most restrictive standard where multiple standards
exist. We follow the SBA standards, which are based on annual revenue
for some industries and on number of employees for other industries.
The ``Construction'' industry category follows NAICS exactly (NAICS
23) and, thus, we used the SBA definitions of revenue less than or
equal to $36.5 million for NAICS 236 and 237 and $15 million for NAICS
238. All sponsors included in the data fell into one of these three
NAICS codes.
The ``Manufacturing'' industry category includes the standard
sector for Manufacturing (NAICS 31-33), but also covers Logging (NAICS
113310); Sand, Gravel, Clay, and Ceramic and Refractory Minerals Mining
and Quarrying (NAICS 21232); and Newspaper, Periodical, Book, and
Directory Publishers (NAICS 5111). The corresponding SBA small size
standards are as follows: Manufacturing--500 employees or less;
Newspaper, Periodical, Book, and Directory Publishers--500 employees or
less; Logging--500 employees or less; Sand, Gravel, Clay, and Ceramic--
500 employees or less; and Refractory Minerals Mining and Quarrying--
500 employees or less.\150\
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\150\ When an industry breakdown uses multiple sector codes, we
used the more specific NAICS code. Typically, the definition of the
industry category centers on a particular sector (for example,
Manufacturing) but it may also include some satellite industries.
For example, Logging is the only industry in Agriculture, Forestry,
Fishing, and Hunting (NAICS 11). Thus, including the entire sector
would be a poor representation of the ``Manufacturing'' industry
category.
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The ``Service'' industry category covers the largest number of
NAICS sectors, subsectors, and industries.\151\ The majority of these
industries use the SBA small business size standard of revenue of less
than or equal to $7.5 million, with the exception of Motion Picture and
Video Production, which uses $32.5 million; and Dental Laboratories,
which uses 500 employees or less.
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\151\ The included industry sectors are Arts, Entertainment and
Recreation (NAICS 71); Accommodation (NAICS 721); Other Services
(NAICS 81); Administrative and Support and Waste Management and
Remediation Services (NAICS 56); Professional, Scientific, and
Technical Services (NAICS 541); Rental and Leasing Services (NAICS
532); Motion Picture and Video Production (NAICS 512110); Dental
Laboratories (NAICS 339116); Radio, Television and Other Electronic
Stores (NAICS 44312); Educational Services (NAICS 611); and Health
Care and Social Assistance (NAICS 62).
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The ``Transportation and Communication'' industry category includes
transportation and warehousing (NAICS 48-49), Marinas (NAICS 713930),
Other Nonhazardous Waste Treatment and Disposal (NAICS 562219),
Telecommunication (NAICS 517), Radio and TV Broadcasting (NAICS 5151),
and Utilities (NAICS 221). The SBA size standard for these industries
is revenue less than or equal to $7.5 million or 500 employees or less
for Transportation and Warehousing and Marinas; $32.5 million or 1,500
employees or less for Telecommunication; $38.5 million for Other
Nonhazardous Waste Treatment and Disposal; and $32.5 million for Radio
and TV Broadcasting.\152\
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\152\ Utilities are categorized as small when their total
electric output does not exceed 4 million megawatt hours. Because we
did not have readily available data on megawatt output, we set aside
the Utilities subsector.
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The ``Trade'' industry category includes Merchant Wholesalers,
Nondurable Goods (NAICS 424) and Durable Goods (NAICS 423); Retail
Trade (NAICS 44-45); Retail Bakeries (NAICS 311811); and Food Services
and Drinking Places (NAICS 722). The associated SBA size standards are:
Merchant Wholesalers, Nondurable Goods and Durable Goods--less than or
equal to 100 employees, Retail Trade--revenue less than or equal to
$7.5 million, Retail Bakeries--less than or equal to 1,000 employees
and Food Services and Drinking Places--revenue less than or equal to
$7.5 million.
SBA small business size standards are based on a comprehensive
survey of industries, and are specific to each industry. Because each
industry category covers multiple sectors, each category includes
several criteria that can be used to identify small entities.\153\ To
determine the average number of employees by small entity, the revenue
per employee for a small entity, and the percent of entities that
qualify as a small entity, the Department retrieved data on number of
employees and annual revenue from ReferenceUSA, a business information
provider, for approximately 1,600 randomly selected companies. Using
the SBA small business definitions and through this categorization
process, we determined that approximately 91 percent (or 1,459) of the
sample are small entities.\154\
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\153\ The SBA classifies small entities at the industry level
but, because our analysis considers affected sectors, we incorporate
the most common industry standard for each sector or subsector.
\154\ 91% represents an average of the five sectors. For
construction, 91.6% of the sample is classified as small. For
manufacturing, 87.1% of the sample is classified as small. For
trade, 88.1% of the sample is classified as small. For services,
91.0% is classified as small. For transportation, 96.2% of the
sample is classified as small.
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2. Impact on Small Entities
The Department has estimated the incremental costs for small
entities from
[[Page 92103]]
the baseline of the 1978 Final Rule.\155\ This analysis reflects the
incremental cost of the Final Rule, as it adds to the requirements of
the 1978 Final Rule. Using available data, we have estimated the costs
of the following provisions: posting of the equal opportunity pledge,
disseminating information about apprenticeship opportunities through
universal outreach and recruitment, selected sponsors disseminating
information about apprenticeship opportunities through targeted
outreach, the time required to read and review the new regulatory
requirements, offering periodic orientation and information sessions,
developing a form for individuals to self-identify a disability,
conducting utilization and workforce analyses, and reviewing
affirmative action plans.
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\155\ 43 FR 20760 (May 12, 1978) (requiring the inclusion of
female apprentices in AAPs).
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To examine the impact of this rule on small entities, we evaluated
the impact of the incremental costs on a hypothetical small entity of
average size. The total number of workers for the average small entity
in the different sectors is as follows, based on ReferenceUSA sample
data: Construction, 15.0; Manufacturing, 132.7; Service, 31.4;
Transportation and Communication, 49.6; and Trade, 31.0.\156\
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\156\ Source: ReferenceUSA sample data, 2015. These figures
originate from the average number of employees and average revenue
by employee size for a business that qualifies as a small business
based on the sector-specific size standard.
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Using 2015 data from ReferenceUSA we received revenue estimates for
the sample of firms within each sector. The data showed that small
entities within each sector had the following average revenue:
Construction, $3.10 million; Manufacturing, $92.74 million; Service,
$1.58 million; Transportation and Communication, $39.14 million; and
Trade, $11.48 million.
A significant economic burden results when the total incremental
annual cost as a percentage of total average annual revenue is equal to
or exceeds 3 percent.\157\ Because the estimated annual burden of the
Final Rule is less than 1 percent of the average annual revenue of each
industry category, the Final Rule is not expected to cause a
significant economic impact to small entities. These entities include
individual employers, groups of employers, labor management
organizations, or industry associations that sponsor apprenticeships.
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\157\ See Small Business Association, A Guide for Government
Agencies: How to Comply with the Regulatory Flexibility Act, 17-19
(June 2010), available at http://www.sba.gov/content/guide-government-agencies-how-comply-with-regulatory-flexibility-act-0
(last accessed Apr. 7, 2011). The Department has used the 3 percent
threshold in previous regulations.
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A provision-by-provision analysis of the estimated small entity
impacts of the Final Rule is provided below.
3. Impacts of Final Rule Provisions
The following sections present the impacts that the Final Rule is
estimated to have on small entities that sponsor apprentices.\158\
These include: posting of the equal opportunity pledge, disseminating
information about apprenticeship opportunities through universal
outreach and recruitment to individuals with disabilities,
disseminating information about apprenticeship opportunities through
targeted outreach and recruitment, reading and reviewing the new
regulatory requirements, offering periodic orientation and information
sessions, providing a form for individuals to self-identify a
disability, conducting utilization and workforce analyses, and
reviewing affirmative action plans.
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\158\ The Department used ReferenceUSA data on number of
employees per entity and annual revenue per entity to determine
whether each entity in the sample was classified as small based on
SBA definitions. The Department's previous treatment of sponsors
with at least 5 apprentices or fewer than 5 apprentices is not
directly relevant to this RFA analysis. Some sponsors with at least
5 apprentices may have been classified as small entities based on
SBA standards if the number of employees or revenue did not exceed
SBA standards for the corresponding NAICS code; similarly, some
sponsors with fewer than 5 apprentices may have been classified as
large if revenue exceeded SBA standards for the corresponding NAICS
code.
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The Department estimated the per-entity cost for each one of these
changes from the baseline, that is, the 1978 Final Rule. Because all
the Final Rule provisions will have a similar impact on entities across
economic sectors, we calculated impacts to a representative single
entity.\159\ As explained in detail below, the total impact amounts to
approximately $1,658.15 per affected small entity in the first year.
Average annual cost per affected small entity in years 2 through 10 is
$2,098.23).\160\ The analysis covers a 10-year period (2017 through
2026) to ensure it captures costs that accrue over time.
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\159\ A large entity could have a single apprentice or a small
entity could have multiple apprentices.
\160\ Because the number of apprentices does not directly
correlate with the size of the sponsor, we are unable to account for
this difference. To avoid under-estimating the impacts, the
Department assumed that the time to complete the review process is
independent of the size of the entity and applied the same cost of
this provision to entities regardless of their size.
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a. Posting of the Equal Opportunity Pledge
The Final Rule requires sponsors to post their equal opportunity
pledge at each individual sponsor location, including on bulletin
boards and through electronic media (Sec. 30.3(b)(2)). The 1978 Final
Rule did not contain a requirement for posting the pledge. This
provision represents a cost to sponsors, and reflects the time needed
to put up a physical copy of the pledge and post it on their Web site
as well as the cost of the materials.
To estimate the labor cost of this provision, we assumed that it
would take a sponsor 5 minutes (0.08 hours) to put up a physical copy
of the pledge, and that this task would be performed by an
administrative assistant at an average hourly compensation rate of
$23.10. We multiplied the time estimate for this provision by the
average hourly compensation rate to obtain a total labor cost per
sponsor of $1.85 ($23.10 x 0.08).
To estimate the materials cost, we assumed that the pledge is one
page, and that the cost per page for photocopying is $0.08, resulting
in a materials cost of $0.08 ($0.08 x 1) per sponsor.
The Department also assumes it will take a sponsor 10 minutes (0.17
hours) to post the pledge on its Web site and that this task will be
performed by a web developer at an hourly compensation rate of $45.24.
The cost of posting the pledge on the sponsor's Web site is $7.69
($45.24 x 0.17). Summing the labor and materials costs results in an
annual per-entity cost of $9.62 ($1.85 + $0.08 + $7.69) due to this
provision.
b. Disseminate Information About Apprenticeship Opportunities Through
Universal Outreach and Recruitment, Including to Individuals With
Disabilities
Under the 1978 Final Rule, sponsors with five or more apprentices
are required to develop and maintain an affirmative action program,
which requires, among other things, outreach and recruitment of women
and minorities. The Final Rule requires that sponsors, in addition to
contacting organizations that reach women and minorities, also contact
organizations that serve individuals with disabilities. Sponsors are
required to develop a list of recruitment sources that generate
referrals from all demographic groups, women, minorities, and
individuals with disabilities, with contact information for each
source. Further, sponsors are required to notify these sources of any
apprenticeship
[[Page 92104]]
opportunities, preferably with 30 days advance notice.
We assumed that the cost to sponsors to distribute the information
about apprenticeship opportunities to organizations serving individuals
with disabilities will be the labor cost. We also assumed that the
labor for this provision will be performed by a human resource manager
and an administrative assistant with average hourly compensation rates
of $73.90 and $23.10, respectively.
The Department estimated that this dissemination task will take 0.5
hours of a human resource manager's time and 0.5 hours of an
administrative assistant's time per targeted source. The cost of this
provision per affected sponsor is, therefore, the time each staff
member devotes to this task (0.5 hours for a human resource manager and
0.5 hours for an administrative assistant) multiplied by their
associated average hourly compensation rates. This calculation resulted
in a total labor cost of $48.50 (($73.90 x 0.5) + ($23.10 x 0.5)) per
source. This total labor cost is then multiplied by the number of
outreach sources (5). The annual per-entity cost for this provision is
$242.50 ($48.50 x 5) for each entity.
c. Disseminate Information About Apprenticeship Opportunities Through
Targeted Outreach and Recruitment, Including to Individuals With
Disabilities
In addition to the normal outreach, recruitment, and retention
activities required of all sponsors under Sec. 30.3(b), the Final Rule
requires sponsors of apprenticeship programs, whose utilization
analyses revealed underutilization of Hispanics or Latinos, women, or a
particular racial minority group(s) and/or who have determined pursuant
to Sec. 30.7(f) that there are problem areas with respect to its
outreach, recruitment, and retention activities of individuals with
disabilities, to engage in targeted outreach, as discussed in Sec.
30.8. We assume that this additional outreach will happen in the same
manner as the universal outreach discussed above.
This additional outreach, recruitment, and retention will be
required for sponsors who employ five or more apprentices and who are
not effectively recruiting and retaining a particular underutilized
group. We assume that 25 percent of all sponsors currently employ five
or more apprentices, and are thus required to develop and maintain an
affirmative action program.\161\ However, the Department recognizes
that some sponsors may already be employing persons with disabilities
as registered apprentices and, therefore, this analysis overestimates
those who need to set goals. Unfortunately, there are no available data
on the number of sponsors who are employing persons with disabilities
as registered apprentices.
---------------------------------------------------------------------------
\161\ The 25 percent of sponsors who employ five or more
apprenticeships was estimated from the RAPIDS database maintained by
the Department.
---------------------------------------------------------------------------
For this analysis, we assumed that the 25 percent of all sponsors
employing five or more apprentices remains constant throughout the 10-
year analysis period. In reality, this percentage will fluctuate as
sponsors take on new apprentices and as apprentices complete their
programs. We also expect that, over time, successful outreach will lead
to more hiring of persons with disabilities and that sponsors will meet
their recruitment goals and not be required to complete this additional
outreach.
We assumed that the cost to sponsors to distribute information
about apprenticeship opportunities to organizations serving individuals
with disabilities will be the labor cost. We also assumed that the
labor for this provision will be performed by a human resource manager
and an administrative assistant with average hourly compensation rates
of $73.90 and $23.10, respectively.
The Department estimated that this dissemination task will take 0.5
hour of a human resource manager's time and 0.5 hour of an
administrative assistant's time per targeted source. A sensitivity
analysis for a range of time spent conducting targeted outreach to
organizations that serve individuals with disabilities is presented
below. The cost of this provision per affected sponsor is, therefore,
the time each staff member devotes to this task (0.5 hour for a human
resource manager and 0.5 hour for an administrative assistant)
multiplied by their associated average hourly compensation rates. This
calculation results in a total labor cost of $48.50 (($73.90 x 0.5) +
($23.10 x 0.5)) per source. This total labor cost is then multiplied by
the number of outreach sources (5), yielding a cost per small entity of
$242.50 ($48.50 x 5) beginning in 2019. The total number of estimated
sponsors is 26,606 in 2019. We assume that this additional outreach
will occur 2 years after the Final Rule goes into effect.
d. Reading and Reviewing the New Regulatory Requirements
During the first year after implementation of the Final Rule,
sponsors will need to learn about the new regulatory requirements. We
estimate this cost for a hypothetical small entity by multiplying the
time required to read the new rule (4 hours) by the average hourly
compensation rate of a human resources manager ($73.90, as calculated
above). Thus, the resulting cost per small entity is $295.60 ($73.90 x
4). This cost occurs only in the year after the Final Rule is
published.
e. Orientation and Periodic Information Sessions
Section Sec. 30.3(b)(2) requires each sponsor to conduct
orientation and periodic information sessions for apprentices and
journeyworkers who directly supervise apprentices, and other
individuals connected with the administration or operation of the
sponsor's apprenticeship program to inform and remind such individuals
of the sponsor's equal employment opportunity policy with regard to
apprenticeship and anti-harassment.
The Department estimated that in the first year a sponsor will hold
one 45 minute regular orientation and information session with on
average 24 apprentices ($18.72 per hour) and 24 journeyworkers ($31.68
per hour) in 2017.\162\ The Department estimated that a human resource
manager ($73.90 per hour) would need to spend 2 hours to develop and
prepare written materials for the session in the first year. The first-
year cost per small entity is $1,110.43 ((24 x 0.75 x $18.72) + (24 x
0.75 x $31.68) + (1 x (2.75) x $73.90)). The average annual cost in
year 2 through 10 per a small entity for this provision is $1197.83
\163\
---------------------------------------------------------------------------
\162\ Using 2015 data from the Registered Apprenticeship
Partners Information Data System (RAPIDS) and the apprentice and
sponsor growth model in the analysis, the Department calculated that
there are on average 24 apprentices per sponsor in the program in
2017. While many small entity sponsors may employ fewer than 24
apprentices, the Department conservatively assumed that 24
apprentices and 24 journeyworkers would attend orientation and
periodic information sessions for small entities.
\163\ The Department estimated that there are on average 24
apprentices per sponsor in 2017; 26 in 2018; 27 in 2019; 28 in 2020;
29 in 2021; 31 in 2022; 32 in 2023; 32 in 2023; 32 in 2024; 33 in
2025; and 34 in 2026.
---------------------------------------------------------------------------
f. Invitation to Self-Identify as an Individual With a Disability
Section Sec. 30.11 requires sponsors to invite applicants for
apprenticeship to voluntarily self-identify as an individual with a
disability protected by this part
[[Page 92105]]
at two stages: (1) At the time they apply or are considered for
apprenticeship and (2) after they are accepted into the apprenticeship
program but before they begin their apprenticeship
Within the first two years of this program, sponsors with 5 or more
apprentices will need to survey their current workforce with the
invitation to self-identify. The Department calculated that in 2018 the
sponsor will survey an average of 26 apprentices ($18.72) with an
invitation to self-identify provided by the Department. Each apprentice
will spend 5 minutes (0.08 hour) filling out the form. The Department
estimated an administrative assistant ($23.10 per hour) would need to
spend 0.5 hour annually to record and keep the forms. The cost to the
sponsor for this requirement in 2018 is $50.49 (26 apprentices x $18.72
x 0.08 hour) + (0.5 hour x $23.10). In addition, the sponsor is
required to remind apprentices yearly beginning in 2019 that they can
update their invitation to self-identify. The Department assumed that
the sponsor would send out a reminder email yearly at the cost of $1.85
(0.08 hour x $23.10). The total cost of this provision to the sponsor
in 2019 is $53.83 ($43.00 + $1.85). The average annual cost in year 2
through 10 per a small entity for this provision is $58.45.\164\
---------------------------------------------------------------------------
\164\ The cost estimates for this provision excludes the costs
incurred by applicants given that they are not borne by the small
businesses themselves.
---------------------------------------------------------------------------
g. Utilization Analysis and Goal Setting and Workforce Analysis
The Final Rule requires the Department to develop a tool for
utilization analyses and provides one hour for sponsors to train a
human resource manager ($73.90 per hour) on how to use the tool. This
results in a one-time cost of $73.90 per small entity sponsor in 2018.
The Final Rule also requires sponsors with five or more apprentices
to conduct the utilization analysis every five years and the workforce
analysis every two and a half years. The resulting cost per small
entity is $7.39 for the utilization analysis (0.5 hour x $73.90/5) in
2019. There will be a slight cost-saving for sponsors for conducting
the workforce analysis. For sponsors with five or more apprentices,
this process is expected to take 2 hours of an HR manager's time
($73.90 per hour) every 2.5 years compared to a baseline of 1 hour of
an HR manager's time annually, for a net saving of 0.2 hours or $14.78
($73.90 x 0.2 hours) per small entity per year. However, this cost
saving accruing only to sponsors with 5 or more apprentices was not
accounted for in this analysis to conservatively estimate the costs to
small entities.
h. Affirmative Action Plan Reviews
All sponsors are currently required to review their affirmative
action plans annually. The Department estimates this process to take 8
hours of a human resource manager's ($73.90 per hour) time for a
baseline cost of $591.20. Under the Final Rule, with a two-year phase-
in, an HR manager would spend 8 hours annually conducting a personnel
review, canceling out the baseline cost from 2018 forward. The
Department also added the costs of conducting a written affirmative
action plan update at the time of the compliance review every 5 years
at 12 hours of an HR manager's time (12 x $73.90/5) and conducting a
written affirmative action plan update within three years of the
compliance review every 5 years at 6 hours of an HR manager's time (6 x
$73.90/5) for a net cost of $266.04 ($177.36 + $88.68).
4. Total Cost Burden for Small Entities
For a hypothetical small entity in the top five industry
categories, the first year cost of this rule is $1658.15 ($9.62 +
$242.50 + $295.60 + $1110.43). Average annual cost in years 2 through
10 is $2,098.23 ($9.62 + $242.50 + $242.50 + $1197.83 + $58.45 + $7.39
+ $73.90 + $266.04).
The total cost impacts, as a percent of revenue, are all well below
the 3 percent threshold for determining a significant economic impact.
The estimated cost impacts to apprenticeship sponsors for the first
year, as a percent of revenue, are as follows: Construction, 0.053
percent; Manufacturing, 0.002 percent; Trade, 0.014 percent; Service,
0.105 percent; and Transportation and Communication, 0.004 percent.
None of these impacts for the first year are close to 3 percent of
revenues, even if considering only the high cost estimates. The
estimated annual cost impacts to apprenticeship sponsors are as
follows: Construction, 0.068 percent; Manufacturing, 0.002 percent;
Trade, 0.018 percent; Service, 0.133 percent; and Transportation and
Communication, 0.005 percent. None of these impacts are close to 3
percent of revenues. Exhibit 7 shows the estimated first year and
annual cost impacts to apprenticeship sponsors by industry.
The Department estimates the Final Rule would have a significant
economic impact on ten out of the 1,459 small entities in the sample
from the top five industries. However, this accounts for 0.7 percent of
the total number of small entities in the sample, which is less that
the 15 percent threshold set to be considered as substantial number of
small entities. As a result of this analysis, the Final Rule is not
expected to have a significant impact on a substantial number of small
entities.
[GRAPHIC] [TIFF OMITTED] TR19DE16.004
[[Page 92106]]
Paperwork Reduction Act (PRA)
The purpose of the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C.
3501 et seq., includes minimizing the paperwork burden on affected
entities. The PRA requires certain actions before an agency can adopt
or revise a collection of information, including publishing for public
comment a summary of the collection of information and a brief
description of the need for and proposed use of the information.
As part of its continuing effort to reduce paperwork and respondent
burden, the Department conducts a preclearance consultation program to
provide the public and Federal agencies with an opportunity to comment
on proposed and continuing collections of information in accordance
with the PRA. See 44 U.S.C. 3506(c)(2)(A). This activity helps to
ensure that the public understands the Department's collection
instructions, respondents can provide the requested data in the desired
format, reporting burden (time and financial resources) is minimized,
collection instruments are clearly understood, and the Department can
properly assess the impact of collection requirements on respondents.
A Federal agency may not conduct or sponsor a collection of
information unless it is approved by OMB under the PRA and displays a
currently valid OMB control number. The public is also not required to
respond to a collection of information unless it displays a currently
valid OMB control number. In addition, notwithstanding any other
provisions of law, no person will be subject to penalty for failing to
comply with a collection of information if the collection of
information does not display a currently valid OMB control number (44
U.S.C. 3512).
In accordance with the PRA, the Department submitted the identified
information collections associated with the NPRM to OMB when the NPRM
was published. The NPRM provided an opportunity for the public to
comment on the information collections directly to the Department;
commenters also were advised that comments under the PRA could be
submitted directly to OMB. OMB issued a notice of action for each
request asking the Department to resubmit the ICRs at the final rule
stage and after considering public comments. The Department has
submitted the related ICRs to OMB for approval; the reviews remain
pending, and the Department will publish notices in the Federal
Register to announce the results of those reviews once they are
complete. The Department discusses the public comments in this section
of the preamble.
The Department received three comments concerning the paperwork
requirements of this Final Rule. One commenter questioned the overall
need for the rule, claiming that organization was already required to
comply with other equal employment opportunity rules and adding
recordkeeping requirements would increase paperwork and result in fewer
potential sponsors of registered apprenticeship programs. The other two
commenters also associated an increase in paperwork associated with the
rule. No commenter, however, quantified the claims.
One of the commenters offered suggestions for the substantive
provisions. These are addressed in the analysis for sections 30.3,
30.5, 30.7, 30.10, 30.11, and 30.12 in this preamble.
The Department acknowledges the final rule adds recordkeeping and
paperwork requirements that may slightly increase paperwork burden.
However, this final rule reduces paperwork burden in other ways. More
specifically the final rule, streamlines the workforce and utilization
analysis required of sponsors with five or more apprentices and
clarifies when and how utilization goals are to be established for
women and minorities (Sec. Sec. 30.5 through 30.7); reduces the
frequency with which the workforce and utilization analyses must be
conducted--from annually under the existing rule to at the time of the
compliance review for the utilization analysis (every five years on
average) and within three years of the compliance review for the
workforce analysis (Sec. 30.12). The Department has reconsidered the
paperwork burden estimates and determined the increased recordkeeping
burdens are substantially offset by the reductions.
The information collections in this Final Rule are summarized as
follows.
Agency: DOL-ETA.
Title of Collection: Labor Standards for the Registration of
Apprenticeship Programs.
Type of Review: Revision.
OMB Control Number: 1205-0223.
Affected Public: State, Local, and Tribal Governments, Individuals
or Households and Private Sector.
Obligation to Respond: Required to obtain or retain a benefit.
Total Estimated Number of Respondents Annually: 138,229.
Total Estimated Number of Annual Responses: 138,229.
Frequency of Responses: Annually.
Total Estimated Annual Time Burden: 14,724.
Total Estimated Annual Other Costs Burden: $0.
Regulations sections: Sec. 29.3, Sec. 29.7, Sec. 29.5, Sec.
29.13, Sec. 29.14, Sec. 29.6.
Overview and Response to Comments Received
Overview: Title 29 CFR 29.5 requires sponsors to meet
apprenticeship standards to have a registered apprenticeship program.
This information collection package contains the ETA Form 671,
Apprenticeship Agreement Form. The form has been modified to provide
voluntary self-identification of an individual with a disability. Such
information is collected on a separate tear-off sheet that is
maintained separately from the Apprenticeship Agreement Form and
treated as confidential.
The Department received no comments on this information collection.
Agency: DOL-ETA.
Title of Collection: Equal Employment Opportunity in
Apprenticeship.
Type of Review: Revision.
OMB Control Number: 1205-0224.
Affected Public: State, Local, and Tribal Governments; Individuals
or Households.
Obligation to Respond: Required to Obtain or Retain Benefits.
Total Estimated Number of Respondents Annually: 19,277.
Total Estimated Number of Annual Responses: 34,490.
Total Estimated Annual Time Burden: 3,219 hours.
Total Estimated Annual Other Costs Burden: $0.
Regulations sections: Sec. 30.3, Sec. 30.4, Sec. 30.5, Sec.
30.6, Sec. 30.8, Sec. 30.11, Sec. 30.16, Sec. 30.19.
Overview and Response to Comments Received
Overview: This information collection contains the requirements for
SAAs to prepare State EEO plans conforming to the regulations, to
maintain adequate records pertinent to compliance with the regulations,
and to notify the Department of exemptions from the regulations granted
to program sponsors.
The Department received no comments concerning this information
collection.
Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C.
1531-1538) establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments, and on the private sector. This Final Rule does not impose
any Federal mandates on any State, local, or tribal governments, or the
[[Page 92107]]
private sector, within the meaning of the Unfunded Mandates Reform Act
of 1995.
Executive Order 13132: Federalism
As with the NPRM, the Department reviewed the Final Rule in
accordance with Executive Order 13132. The revisions to part 30 may
have substantial direct effects on States and on the relationship
between the Federal government and the States. Although matters of
Federalism in the National Registered Apprenticeship System are
primarily established through part 29, Labor Standards for Registration
of Apprenticeship Programs, which establishes the requirements for the
recognition of SAAs as Registration Agencies, the proposed revisions to
part 30 also have direct effect on a State's method of administering
registered apprenticeship for Federal purposes. In particular, the
Final Rule requires an SAA that seeks to obtain or maintain recognition
as the Registration Agency for Federal purposes, submit, at a minimum,
draft State apprenticeship legislation corresponding to the
requirements of part 30, and requires all program sponsors registered
with the State for Federal purposes to comply with the State EEO plan.
This NPRM also requires OA's Administrator to provide written
concurrence on any subsequent modifications to the State EEO plan, as
provided in paragraph 29.13(b)(9) of this title. The Department has
determined that these requirements are essential to ensure that SAAs
conform to the new requirements of part 30, as a precondition for
recognition.
In the development of this Rule, the Department included several
mechanisms for consultation with State officials. In 2010, OA conducted
two listening sessions with members of the National Association of
State and Territorial Apprenticeship Directors (NASTAD), the
organization representing apprenticeship officials from the District of
Columbia, 26 States, and three Territories, to request the members'
recommendations for updating part 30. Additionally, as discussed
earlier in the preamble, OA gave consideration to recommendations from
the ACA, whose membership includes representatives from NASTAD and the
National Association of State Government Labor Officials (NAGLO). OA
invited State officials to participate in a series of ``town hall''
meetings and a webinar conducted in spring 2010 to elicit the agency's
stakeholders' recommendations for updating part 30. The Department
considered all of the issues raised in these fora, and incorporated
many of them into the NPRM and this Final Rule. Finally, the Department
specifically solicited comments from State and local government
officials on the NPRM.
In response, the Department received several comments raising
questions as to whether the provisions of the proposed rule, hereby
adopted into the Final Rule, were in conflict with other State or
Federal laws, including principally ERISA and state disability laws
regarding self-identification inquiries. This Final Rule has addressed
these comments in the Section-by-Section analysis, specifying that no
such conflict exists as to ERISA and no ascertainable conflict exists
as to State law. To the extent any such conflict exists, preemption
shall be restricted to the minimum level necessary to achieve the
objectives of the National Apprenticeship Act.
Assessment of Federal Regulations and Policies on Families
The Department certifies that this Final Rule has been assessed
according to Sec. 654 of Pub. L. 105-277, 112 Stat. 2681, for its
effect on family well-being. The Department concludes that this Final
Rule will not adversely affect the well-being of the Nation's families.
Rather, it should have a positive effect by safeguarding the welfare of
registered apprentices.
Executive Order 13175: Consultation and Coordination With Indian Tribal
Governments
The Department has reviewed this proposed rule in accordance with
Executive Order 13175 and has determined that it does not have ``tribal
implications.'' This Final Rule does not ``have substantial direct
effects on one or more Indian tribes, on the relationship between the
Federal government and Indian tribes, or on the distribution of power
and responsibilities between the Federal government and Indian
tribes.''
Executive Order 12988: Civil Justice
This Final Rule has been drafted and reviewed in accordance with
Executive Order 12988, Civil Justice Reform, and will not unduly burden
the Federal court system. This Final Rule has been written so as to
minimize litigation and provide a clear legal standard for affected
conduct, and has been reviewed carefully to eliminate drafting errors
and ambiguities.
List of Subjects
29 CFR Part 29
Apprentice agreement and complaints, Apprenticeability criteria,
Program standards, registration and deregistration, Sponsor
eligibility, State Apprenticeship Agency recognition and derecognition.
29 CFR Part 30
Administrative practice and procedure, Apprenticeship, Employment,
Equal employment opportunity, Reporting and recordkeeping requirements,
Training.
Signed in Washington, DC.
Portia Wu,
Assistant Secretary, Employment and Training Administration.
For the reasons stated in the preamble, the Employment and Training
Administration amends 29 CFR parts 29 and 30 as follows:
PART 29--LABOR STANDARDS FOR THE REGISTRATION OF APPRENTICESHIP
PROGRAMS
0
1. The authority citation for part 29 continues to read as follows:
Authority: Section 1, 50 Stat. 664, as amended (29 U.S.C. 50;
40 U.S.C. 276c; 5 U.S.C. 301) Reorganization Plan No. 14 of 1950, 64
Stat. 1267 (5 U.S.C. App. P. 534).
0
2. Amend Sec. 29.5 by revising paragraph (b)(21) to read as follows:
Sec. 29.5 Standards of apprenticeship.
* * * * *
(b) * * *
(21) Compliance with 29 CFR part 30, including the equal
opportunity pledge prescribed in 29 CFR 30.3(c); an affirmative action
program complying with 29 CFR 30.4; and a method for the selection of
apprentices complying with 29 CFR 30.10, or compliance with parallel
requirements contained in a State plan for equal opportunity in
apprenticeship adopted under 29 CFR part 30 and approved by the
Department. The apprenticeship standards must also include a statement
that the program will be conducted, operated and administered in
conformity with applicable provisions of 29 CFR part 30, as amended, or
if applicable, an approved State plan for equal opportunity in
apprenticeship.
* * * * *
0
3. In Sec. 29.7, revise paragraph (j) and add paragraph (l) to read as
follows:
Sec. 29.7 Apprenticeship agreement.
* * * * *
(j) A statement that the apprentice will be accorded equal
opportunity in all phases of apprenticeship employment and training,
without discrimination because of race, color, religion, national
origin, sex, sexual
[[Page 92108]]
orientation, age (40 or older), genetic information, or disability.
* * * * *
(l) A request for demographic data, including the apprentice's
race, sex, and ethnicity, and disability status.
0
4. Amend Sec. 29.8 by revising paragraph (b)(1)(i) to read as follows:
Sec. 29.8 Reinstatement of program registration.
* * * * *
(b) * * *
(1)(i) Deregistration proceedings may be undertaken when the
apprenticeship program is not conducted, operated, or administered in
accordance with the program's registered provisions or with the
requirements of this part, including but not limited to: failure to
provide on-the-job learning; failure to provide related instruction;
failure to pay the apprentice a progressively increasing schedule of
wages consistent with the apprentices skills acquired; or persistent
and significant failure to perform successfully.
* * * * *
0
5. Amend Sec. 29.14 by revising paragraph (a) to read as to read as
follows:
Sec. 29.14 Derecognition of State Apprenticeship Agencies.
* * * * *
(a) Derecognition proceedings for failure to adopt or properly
enforce a State Plan for Equal Employment Opportunity in Apprenticeship
must be processed in accordance with the procedures prescribed in this
part.
* * * * *
0
6. Revise part 30 to read as follows:
PART 30--EQUAL EMPLOYMENT OPPORTUNITY IN APPRENTICESHIP
Sec.
30.1 Purpose, applicability, and relationship to other laws.
30.2 Definitions.
30.3 Equal opportunity standards applicable to all sponsors.
30.4 Affirmative action programs.
30.5 Utilization analysis for race, sex, and ethnicity.
30.6 Establishment of utilization goals for race, sex, and
ethnicity.
30.7 Utilization goals for individuals with disabilities.
30.8 Targeted outreach, recruitment, and retention.
30.9 Review of personnel processes.
30.10 Selection of apprentices.
30.11 Invitation to self-identify as an individual with a
disability.
30.12 Recordkeeping.
30.13 Equal employment opportunity compliance reviews.
30.14 Complaints.
30.15 Enforcement actions.
30.16 Reinstatement of program registration.
30.17 Intimidation and retaliation prohibited.
30.18 State apprenticeship agencies.
30.19 Exemptions.
Authority: Sec. 1, 50 Stat. 664, as amended (29 U.S.C. 50; 40
U.S.C. 276c; 5 U.S.C. 301); Reorganization Plan No. 14 of 1950, 64
Stat. 1267, 3 CFR 1949-53 Comp. p. 1007.
Sec. 30.1 Purpose, applicability, and relationship to other laws.
(a) Purpose. The purpose of this part is to promote equal
opportunity for apprentices and applicants for apprenticeship in
registered apprenticeship programs by prohibiting discrimination based
on race, color, religion, national origin, sex, sexual orientation, age
(40 or older), genetic information, and disability. This part also
prescribes affirmative action efforts sponsors must take to ensure
equal opportunity for apprentices and applicants for apprenticeship.
The regulations set forth the equal opportunity obligations of
sponsors, the contents of affirmative action programs, procedures for
the filing and processing of complaints, and enforcement procedures.
These regulations also establish procedures for deregistration of an
apprenticeship program in the event of noncompliance with this part and
prescribe the equal opportunity requirements for recognition of State
Apprenticeship Agencies (SAA) under part 29.
(b) Applicability. This part applies to all sponsors of
apprenticeship programs registered with either the U.S. Department of
Labor or a recognized SAA.
(c) Relationship to other laws. This part does not invalidate or
limit the remedies, rights, and procedures under any Federal law or the
law of any State or political subdivision of any State or jurisdiction
that provides greater or equal protection for individuals based on
race, color, religion, national origin, sex, sexual orientation, age
(40 or older), genetic information, or disability than are afforded by
this part. It may be a defense to a charge of a violation of this part
that a challenged action is required or necessitated by another Federal
law or regulation, or that another Federal law or regulation prohibits
an action that would otherwise be required by this part.
Sec. 30.2 Definitions.
For the purpose of this part:
Administrator means the Administrator of the Office of
Apprenticeship, or any person specifically designated by the
Administrator.
Apprentice means a worker at least 16 years of age, except where a
higher minimum age standard is otherwise fixed by law, who is employed
to learn an apprenticeable occupation as provided in Sec. 29.4 of this
chapter under standards of apprenticeship fulfilling the requirements
of Sec. 29.5 of this chapter.
Apprenticeship Committee (Committee) means those persons designated
by the sponsor to administer the program. A committee may be either
joint or non-joint, as follows:
(1) A joint committee is composed of an equal number of
representatives of the employer(s) and of the employees represented by
a bona fide collective bargaining agent(s).
(2) A non-joint committee, which may also be known as a unilateral
or group non-joint (which may include employees) committee, has
employer representatives but does not have a bona fide collective
bargaining agent as a participant.
Apprenticeship program means a plan containing all terms and
conditions for the qualification, recruitment, selection, employment
and training of apprentices, as required under 29 CFR parts 29 and 30,
including such matters as the requirement for a written apprenticeship
agreement.
Department means the U.S. Department of Labor.
Direct threat means a significant risk of substantial harm to the
health or safety of the individual or others that cannot be eliminated
or reduced by reasonable accommodation. The determination that an
individual poses a ``direct threat'' must be based on an individualized
assessment of the individual's present ability to safely perform the
essential functions of the job. This assessment must be based on a
reasonable medical judgment that relies on the most current medical
knowledge and/or on the best available objective evidence. In
determining whether an individual would pose a direct threat, the
factors to be considered include:
(1) The duration of the risk;
(2) The nature and severity of the potential harm;
(3) The likelihood that the potential harm will occur; and
(4) The imminence of the potential harm.
Disability \1\ means, with respect to an individual:
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\1\ The definitions for the term ``disability'' and other terms
relevant to defining disability and disability discrimination
standards, including ``direct threat'', ``major life activities'',
``physical or mental impairment'', ``qualified applicant or
apprentice'', ``reasonable accommodation'', and ``undue hardship,
are taken directly from title I of the Americans with Disabilities
Act (ADA), as amended, and from the Equal Employment Opportunity
Commission's regulations implementing the ADA at 29 CFR part 1630,
to the extent that the ADA, as amended, did not provide a
definition.
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[[Page 92109]]
(1) A physical or mental impairment that substantially limits one
or more major life activities of such individual;
(2) A record of such an impairment; or
(3) Being regarded as having such an impairment.
EEO means equal employment opportunity.
Electronic media means media that utilize electronics or
electromechanical energy for the end user (audience) to access the
content; and includes, but is not limited to, electronic storage media,
transmission media, the Internet, extranet, lease lines, dial-up lines,
private networks, and the physical movement of removable/transportable
electronic media and/or interactive distance learning.
Employer means any person or organization employing an apprentice
whether or not such person or organization is a party to an
Apprenticeship Agreement with the apprentice.
Ethnicity, for purposes of recordkeeping and affirmative action,
has the same meaning as under the Office of Management and Budget's
Standards for the Classification of Federal Data on Race and Ethnicity,
or any successor standards. Ethnicity thus refers to the following
designations:
(1) Hispanic or Latino--A person of Cuban, Mexican, Puerto Rican,
Cuban, South or Central American, or other Spanish culture or origin,
regardless of race.
(2) Not Hispanic or Latino
Genetic information means:
(1) Information about--
(i) An individual's genetic tests;
(ii) The genetic tests of that individual's family members;
(iii) The manifestation of disease or disorder in family members of
the individual (family medical history);
(iv) An individual's request for, or receipt of, genetic services,
or the participation in clinical research that includes genetic
services by the individual or a family member of the individual; or
(v) The genetic information of a fetus carried by an individual or
by a pregnant woman who is a family member of the individual and the
genetic information of any embryo legally held by the individual or
family member using an assisted reproductive technology.
(2) Genetic information does not include information about the sex
or age of the individual, the sex or age of family members, or
information about the race or ethnicity of the individual or family
members that is not derived from a genetic test.\2\
---------------------------------------------------------------------------
\2\ The definition of the term ``genetic information'' is taken
directly from the Genetic Information Nondiscrimination Act of 2008
(GINA) at 42 U.S.C. 2000ff(4) and the EEOC's implementing
regulations at 29 CFR 1635.3(c).
---------------------------------------------------------------------------
Journeyworker means a worker who has attained a level of skill,
abilities and competencies recognized within an industry as having
mastered the skills and competencies required for the occupation. (Use
of the term may also refer to a mentor, technician, specialist or other
skilled worker who has documented sufficient skills and knowledge of an
occupation, either through formal apprenticeship or through practical
on-the-job experience and formal training).
Major life activities include, but are not limited to: Caring for
oneself, performing manual tasks, seeing, hearing, eating, sleeping,
walking, standing, sitting, reaching, lifting, bending, speaking,
breathing, learning, reading, concentrating, thinking, communicating,
interacting with others, and working. A major life activity also
includes the operation of a major bodily function, including but not
limited to, functions of the immune system, special sense organs and
skin; normal cell growth; and digestive, genitourinary, bowel, bladder,
neurological, brain, respiratory, circulatory, cardiovascular,
endocrine, hemic, lymphatic, musculoskeletal, and reproductive
functions. The operation of a major bodily function includes the
operation of an individual organ within a body system.
Office of Apprenticeship (OA) means the office designated by the
Employment and Training Administration of the U.S. Department of Labor
to administer the National Registered Apprenticeship System or its
successor organization.
Physical or mental impairment means:
(1) Any physiological disorder or condition, cosmetic
disfigurement, or anatomical loss affecting one or more body systems,
such as neurological, musculoskeletal, special sense organs,
respiratory (including speech organs), cardiovascular, reproductive,
digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin,
and endocrine; or
(2) Any mental or psychological disorder, such as intellectual
disability (formerly termed ``mental retardation''), organic brain
syndrome, emotional or mental illness, and specific learning
disabilities.
Pre-apprenticeship program means a training model designed to
assist individuals who do not currently possess the minimum
requirements for selection into an apprenticeship program to meet the
minimum selection criteria established in a program sponsor's
apprenticeship standards required under part 29 of this chapter and
which maintains at least one documented partnership with a Registered
Apprenticeship program. It involves a form of structured workplace
education and training in which an employer, employer group, industry
association, labor union, community-based organization, or educational
institution collaborates to provide formal instruction that will
introduce participants to the competencies, skills, and materials used
in one or more apprenticeable occupations.
Qualified applicant or apprentice is an individual who, with or
without reasonable accommodation, can perform the essential functions
of the apprenticeship program for which the individual applied or is
enrolled.
Race, for purposes of recordkeeping and affirmative action, has the
same meaning as under the Office of Management and Budget's Standards
for the Classification of Federal Data on Race and Ethnicity, or any
successor standards. Race thus refers to the following designations:
(1) White--A person having origins in any of the original peoples
of Europe, the Middle East, or North Africa.
(2) Black or African American--A person having origins in any of
the black racial groups of Africa.
(3) Native Hawaiian or Other Pacific Islander--A person having
origins in any of the peoples of Hawaii, Guam, Samoa, or other Pacific
Islands.
(4) Asian--A person having origins in any of the original peoples
of the Far East, Southeast Asia, or the Indian Subcontinent including,
for example, Cambodia, China, India, Japan, Korea, Malaysia, Pakistan,
the Philippine Islands, Thailand, and Vietnam.
(5) American Indian or Alaska Native--A person having origins in
any of the original peoples of North and South America (including
Central America), and who maintains tribal affiliation or community
attachment.
Reasonable accommodation--(1) The term reasonable accommodation
means:
(i) Modifications or adjustments to a job application process that
enable a qualified applicant with a disability to be considered for the
position such qualified applicant desires; or
[[Page 92110]]
(ii) Modifications or adjustments to the work environment, or to
the manner or circumstances under which the position held or desired is
customarily performed, that enable a qualified individual with a
disability to perform the essential functions of that position; or
(iii) Modifications or adjustments that enable a sponsor's
apprentice with a disability to enjoy equal benefits and privileges of
apprenticeship as are enjoyed by its other similarly situated
apprentices without disabilities.
(2) Reasonable accommodation may include but is not limited to:
(i) Making existing facilities used by apprentices readily
accessible to and usable by individuals with disabilities; and
(ii) Job restructuring; part-time or modified work schedules;
reassignment to a vacant position; acquisition or modifications of
equipment or devices; appropriate adjustment or modifications of
examinations, training materials, or policies; the provision of
qualified readers or interpreters; and other similar accommodations for
individuals with disabilities.
(3) To determine the appropriate reasonable accommodation it may be
necessary for the sponsor to initiate an informal, interactive process
with the qualified individual in need of the accommodation. This
process should identify the precise limitations resulting from the
disability and potential reasonable accommodations that could overcome
those limitations.
Registration Agency means the Office of Apprenticeship or a
recognized SAA that has responsibility for registering apprenticeship
programs and apprentices; providing technical assistance; conducting
quality assurance assessments and reviews of registered apprenticeship
programs for compliance with the requirements of part 29 and this part.
Selection procedure means any measure, combination of measures, or
procedure used as a basis for any decision in apprenticeship. Selection
procedures include the full range of assessment techniques from
traditional paper and pencil tests, performance tests, training
programs, or probationary periods and physical, educational, and work
experience requirements through informal or casual interviews and
unscored application forms.
Sponsor means any person, association, committee or organization
operating an apprenticeship program, and in whose name the program is
(or is to be) registered or approved.
State Apprenticeship Agency (SAA) means an agency of a State
government that has responsibility and accountability for
apprenticeship within the State. Only an SAA may seek recognition from
OA as an agency which has been properly constituted under an acceptable
law or Executive Order (E.O.), and authorized by OA to register and
oversee apprenticeship programs and agreements for Federal purposes.
Undue hardship--(1) In general. Undue hardship means, with respect
to the provision of an accommodation, significant difficulty or expense
incurred by a sponsor, when considered in light of the factors set
forth in paragraph (b) of this definition.
(2) Factors to be considered. In determining whether an
accommodation would impose an undue hardship on a sponsor, factors to
be considered include:
(i) The nature and net cost of the accommodation needed under this
part, taking into consideration the availability of tax credits and
deductions, and/or outside funding;
(ii) The overall financial resources of the facility or facilities
involved in the provision of the reasonable accommodation, the number
of persons employed at such facility, and the effect on expenses and
resources;
(iii) The overall financial resources of the sponsor, the overall
size of the registered apprenticeship program with respect to the
number of apprentices, and the number, type and location of its
facilities;
(iv) The type of operation or operations of the sponsor, including
the composition, structure and functions of the workforce of such
entity, and the geographic separateness and administrative or fiscal
relationship of the facility or facilities in question to the sponsor;
and
(v) The impact of the accommodation upon the operation of the
facility, including the impact on the ability of other apprentices to
perform their duties and the impact on the facility's ability to
conduct business.
Sec. 30.3 Equal opportunity standards applicable to all sponsors.
(a)(1) Discrimination prohibited. It is unlawful for a sponsor of a
registered apprenticeship program to discriminate against an apprentice
or applicant for apprenticeship on the basis of race, color, religion,
national origin, sex, sexual orientation, age (40 or older), genetic
information, or disability with regard to:
(i) Recruitment, outreach, and selection procedures;
(ii) Hiring and/or placement, upgrading, periodic advancement,
promotion, demotion, transfer, layoff, termination, right of return
from layoff, and rehiring;
(iii) Rotation among work processes;
(iv) Imposition of penalties or other disciplinary action;
(v) Rates of pay or any other form of compensation and changes in
compensation;
(vi) Conditions of work;
(vii) Hours of work and hours of training provided;
(viii) Job assignments;
(ix) Leaves of absence, sick leave, or any other leave; and
(x) Any other benefit, term, condition, or privilege associated
with apprenticeship.
(2) Discrimination standards and defenses. (i) Race, color,
religion, national origin, sex, or sexual orientation. In implementing
this section, the Registration Agency will look to the legal standards
and defenses applied under title VII of the Civil Rights Act of 1964,
42 U.S.C. 2000e et seq. and Executive Order 11246, as applicable, in
determining whether a sponsor has engaged in a practice unlawful under
paragraph (a)(1) of this section.
(ii) Disability. With respect to discrimination based on a
disability, the Registration Agency will apply the same standards,
defenses, and exceptions to the definition of disability as those set
forth in title I of the Americans with Disabilities Act (ADA), 42
U.S.C. 12112 and 12113, as amended, and the implementing regulations
promulgated by the Equal Employment Opportunity Commission (EEOC) at 29
CFR part 1630, which include, among other things, the standards
governing reasonable accommodation, medical examinations and
disability-related inquiries, qualification standards, and direct
threat defense. The Interpretive Guidance on title I of the ADA set out
as an appendix to part 1630 issued pursuant to title I may be relied
upon for guidance in complying with the nondiscrimination requirements
of this part with respect to the treatment of individuals with
disabilities.
(iii) Age. The Registration Agency will apply the same standards
and defenses for age discrimination as those set forth in the Age
Discrimination in Employment Act (ADEA), 29 U.S.C. 623, and the
implementing regulations promulgated by the EEOC at 29 CFR part 1625.
(iv) Genetic information. The Registration Agency will apply the
same standards and defenses for discrimination based on genetic
information as those set forth in the Genetic Information
Nondiscrimination
[[Page 92111]]
Act (GINA), 29 U.S.C. 2000ff et seq., and the implementing regulations
promulgated by the EEOC at 29 CFR part 1635.
(b) General duty to engage in affirmative action. For each
registered apprenticeship program, a sponsor is required to take
affirmative steps to provide equal opportunity in apprenticeship. These
steps must include:
(1) Assignment of responsibility. The sponsor will designate an
individual or individuals with appropriate authority under the program,
such as an apprenticeship coordinator, to be responsible and
accountable for overseeing its commitment to equal opportunity in
registered apprenticeship, including the development and implementation
of an affirmative action program as required by Sec. 30.4. The
individual(s) must have the resources, support of, and access to the
sponsor leadership to ensure effective implementation. The
individual(s) will be responsible for:
(i) Monitoring all registered apprenticeship activity to ensure
compliance with the nondiscrimination and affirmative action
obligations required by this part;
(ii) Maintaining records required under this part; and
(iii) Generating and submitting reports as may be required by the
Registration Agency.
(2) Internal dissemination of equal opportunity policy. The sponsor
must inform all applicants for apprenticeship, apprentices, and
individuals connected with the administration or operation of the
registered apprenticeship program of its commitment to equal
opportunity and its affirmative action obligations. In addition, the
sponsor must require that individuals connected with the administration
or operation of the apprenticeship program take the necessary action to
aid the sponsor in meeting its nondiscrimination and affirmative action
obligations under this part. A sponsor, at a minimum, is required to:
(i) Publish its equal opportunity pledge--set forth in paragraph
(c) of this section--in the apprenticeship standards required under
Sec. 29.5(c) of this title, and in appropriate publications, such as
apprentice and employee handbooks, policy manuals, newsletters, or
other documents disseminated by the sponsor or that otherwise describe
the nature of the sponsorship;
(ii) Post its equal opportunity pledge from paragraph (c) of this
section on bulletin boards, including through electronic media, such
that it is accessible to all apprentices and applicants for
apprenticeship;
(iii) Conduct orientation and periodic information sessions for
individuals connected with the administration or operation of the
apprenticeship program, including all apprentices and journeyworkers
who regularly work with apprentices, to inform and remind such
individuals of the sponsor's equal employment opportunity policy with
regard to apprenticeship, and to provide the training required by
paragraph (b)(4)(i) of this section; and
(iv) Maintain records necessary to demonstrate compliance with
these requirements and make them available to the Registration Agency
upon request.
(3) Universal outreach and recruitment. The sponsor will implement
measures to ensure that its outreach and recruitment efforts for
apprentices extend to all persons available for apprenticeship within
the sponsor's relevant recruitment area without regard to race, sex,
ethnicity, or disability. In furtherance of this requirement, the
sponsor must:
(i) Develop and update annually a list of current recruitment
sources that will generate referrals from all demographic groups within
the relevant recruitment area. Examples of relevant recruitment sources
include: The public workforce system's One-Stop Career Centers and
local workforce investment boards; community-based organizations;
community colleges; vocational, career and technical schools; pre-
apprenticeship programs; and Federally-funded, youth job-training
programs such as YouthBuild and Job Corps or their successors;
(ii) Identify a contact person, mailing address, telephone number,
and email address for each recruitment source; and
(iii) Provide recruitment sources advance notice, preferably 30
days, of apprenticeship openings so that the recruitment sources can
notify and refer candidates. Such notification must also include
documentation of the sponsor's equal opportunity pledge specified in
paragraph (c) of this section.
(4) Maintaining apprenticeship programs free from harassment,
intimidation, and retaliation. The sponsor must develop and implement
procedures to ensure that its apprentices are not harassed because of
their race, color, religion, national origin, sex, sexual orientation,
age (40 or older), genetic information, or disability and to ensure
that its apprenticeship program is free from intimidation and
retaliation as prohibited by Sec. 30.17. To promote an environment in
which all apprentices feel safe, welcomed, and treated fairly, the
sponsor must ensure the following steps are taken:
(i) Providing anti-harassment training to all individuals connected
with the administration or operation of the apprenticeship program,
including all apprentices and journeyworkers who regularly work with
apprentices. This training must not be a mere transmittal of
information, but must include participation by trainees, such as
attending a training session in person or completing an interactive
training online. The training content must include, at a minimum,
communication of the following:
(A) That harassing conduct will not be tolerated;
(B) The definition of harassment and the types of conduct that
constitute unlawful harassment on the basis of race, color, religion,
national origin, sex, sexual orientation, age (40 or older), genetic
information, and disability; and
(C) The right to file a harassment complaint under Sec. 30.14 of
this part.
(ii) Making all facilities and apprenticeship activities available
without regard to race, color, religion, national origin, sex, sexual
orientation, age (40 or older), genetic information, or disability
except that if the sponsor provides restrooms or changing facilities,
the sponsor must provide separate or single-user restrooms and changing
facilities to assure privacy between the sexes;
(iii) Establishing and implementing procedures for handling and
resolving complaints about harassment and intimidation based on race,
color, religion, national origin, sex, sexual orientation, age (40 or
older), genetic information, and disability, as well as complaints
about retaliation for engaging in protected activity described in Sec.
30.17 of this part.
(5) Compliance with Federal and State equal employment opportunity
laws. The sponsor must comply with all other applicable Federal and
State laws and regulations that require equal employment opportunity
without regard to race, color, religion, national origin, sex
(including pregnancy and gender identity, as applicable), sexual
orientation, age (40 or older), genetic information, or disability.
Failure to comply with such laws if such noncompliance is related to
the equal employment opportunity of apprentices and/or graduates of
such an apprenticeship programs under this part is grounds for
deregistration or the imposition of other enforcement actions in
accordance with Sec. 30.15.
(c) Equal opportunity pledge. (1) Each sponsor of an apprenticeship
program must include in its Standards of
[[Page 92112]]
Apprenticeship and apprenticeship opportunity announcements the
following equal opportunity pledge:
[Name of sponsor] will not discriminate against apprenticeship
applicants or apprentices based on race, color, religion, national
origin, sex (including pregnancy and gender identity), sexual
orientation, genetic information, or because they are an individual
with a disability or a person 40 years old or older. [Name of
sponsor] will take affirmative action to provide equal opportunity
in apprenticeship and will operate the apprenticeship program as
required under Title 29 of the Code of Federal Regulations, part 30.
(2) The nondiscrimination bases listed in this pledge may be
broadened to conform to consistent State and local requirements.
Sponsors may include additional protected bases but may not exclude any
of the bases protected by this part.
(d) Compliance.
(1) Current sponsors: A sponsor that has a registered
apprenticeship program as of the effective date of this regulation must
comply with all obligations of this section within 180 days of the
effective date of this rule.
(2) New sponsors: A sponsor registering with a Registration Agency
after the effective date of this regulation shall comply with all
obligations of this section upon registration or 180 days after the
effective date of this regulation, whichever is later.
Sec. 30.4 Affirmative action programs.
(a) Definition and purpose. As used in this part:
(1) An affirmative action program is designed to ensure equal
opportunity and prevent discrimination in apprenticeship programs. An
affirmative action program is more than mere passive nondiscrimination.
Such a program requires the sponsor to take affirmative steps to
encourage and promote equal opportunity, to create an environment free
from discrimination, and to address any barriers to equal opportunity
in apprenticeship. An affirmative action program is more than a
paperwork exercise. It includes those policies, practices, and
procedures, including self-analyses, that the sponsor implements to
ensure that all qualified applicants and apprentices are receiving an
equal opportunity for recruitment, selection, advancement, retention
and every other term and privilege associated with apprenticeship. An
affirmative action program should be a part of the way the sponsor
regularly conducts its apprenticeship program.
(2) A central premise underlying affirmative action is that, absent
discrimination, over time a sponsor's apprenticeship program,
generally, will reflect the sex, race, ethnicity, and disability
profile of the labor pools from which the sponsor recruits and selects.
Consistent with this premise, affirmative action programs contain a
diagnostic component which includes quantitative analyses designed to
evaluate the composition of the sponsor's apprenticeship program and
compare it to the composition of the relevant labor pools. If women,
individuals with disabilities, or individuals from a particular
minority group, for example, are not being admitted into apprenticeship
at a rate to be expected given their availability in the relevant labor
pool, the sponsor's affirmative action program must include specific,
practical steps designed to address any barriers to equal opportunity
that may be contributing to this underutilization.
(3) Effective affirmative action programs include internal auditing
and reporting systems as a means of measuring the sponsor's progress
toward achieving an apprenticeship program that would be expected
absent discrimination.
(4) An affirmative action program also ensures equal opportunity in
apprenticeship by incorporating the sponsor's commitment to equality in
every aspect of the apprenticeship program. Therefore, as part of its
affirmative action program, a sponsor must monitor and examine its
employment practices, policies and decisions and evaluate the impact
such practices, policies and decisions have on the recruitment,
selection and advancement of apprentices. It must evaluate the impact
of its employment and personnel policies on minorities, women, and
persons with disabilities, and revise such policies accordingly where
such policies or practices are found to create a barrier to equal
opportunity.
(5) The commitments contained in an affirmative action program are
not intended and must not be used to discriminate against any qualified
applicant or apprentice on the basis of race, color, religion, national
origin, sex, sexual orientation, age (40 or older), genetic
information, or disability.
(b) Adoption of affirmative action programs. Sponsors other than
those identified in paragraph (d) of this section must develop and
maintain an affirmative action program, setting forth that program in a
written plan. The components of the written plan, as detailed in
Sec. Sec. 30.5 through 30.9, must be developed in accordance with the
respective compliance dates and made available to the Registration
Agency any time thereafter upon request.
(c) Contents of affirmative action programs. An affirmative action
program must include the following components in addition to those
required of all sponsors by Sec. 30.3(a):
(1) Utilization analysis for race, sex, and ethnicity, as described
in Sec. 30.5;
(2) Establishment of utilization goals for race, sex, and
ethnicity, as described in Sec. 30.6;
(3) Utilization goals for individuals with disabilities, as
described in Sec. 30.7;
(4) Targeted outreach, recruitment, and retention, as described in
Sec. 30.8;
(5) Review of personnel processes, as described in Sec. 30.9; and
(6) Invitations to self-identify, as described in Sec. 30.11
(d) Exemptions--(1) Programs with fewer than five apprentices. A
sponsor is exempt from the requirements of paragraphs (b) and (c) of
this section if the sponsor's apprenticeship program has fewer than
five apprentices registered, unless such program was adopted to
circumvent the requirements of this section.
(2) Programs subject to approved equal employment opportunity
programs. A sponsor is exempt from the requirements of paragraphs (b)
and (c) of this section if the sponsor both submits to the Registration
Agency satisfactory evidence that it is in compliance with an equal
employment opportunity program providing for affirmative action in
apprenticeship, including the use of goals for any underrepresented
group or groups of individuals, which has been approved as meeting the
requirements of either title VII of the Civil Rights Act of 1964, as
amended (42 U.S.C. 2000e et seq.) and agrees to extend such program to
include individuals with disabilities, or if the sponsor submits to the
Registration Agency satisfactory evidence that it is in compliance with
an equal employment opportunity program providing for affirmative
action in apprenticeship, including the use of goals for any
underrepresented group or groups of individuals, which has been
approved as meeting the requirements of both Executive Order 11246, as
amended, and section 503 of the Rehabilitation Act, as amended (29
U.S.C. 793), and their implementing regulations at title 41 of the Code
of Federal Regulations, Chapter 60: Provided, That programs approved,
modified or renewed subsequent to the effective date of this amendment
will qualify for this exception only if the goals for any
underrepresented group for the selection of apprentices provided for in
such programs are likely to be
[[Page 92113]]
equal to or greater than the goals required under this part.
(e) Written affirmative action plans. Sponsors required to
undertake an affirmative action program must create and update a
written document memorializing and discussing the contents of the
program set forth in paragraph (c) of this section.
(1) Compliance--(i) Apprenticeship programs existing as of January
18, 2017. The initial written affirmative action plan for such programs
must be completed within two years of January 18, 2017. The written
affirmative action plan for such programs must be updated every time
the sponsor completes workforce analyses required by Sec. Sec. 30.5(b)
and 30.7(d)(2).
(ii) Apprenticeship programs registered after January 18, 2017. The
initial written affirmative action plan for such programs must be
completed within two years of registration. The written affirmative
action plan for such programs must be updated every time the sponsor
completes workforce analyses required by Sec. Sec. 30.5(b) and
30.7(d)(2).
Sec. 30.5 Utilization analysis for race, sex, and ethnicity.
(a) Purpose. The purpose of the utilization analysis is to provide
sponsors with a method for assessing whether possible barriers to
apprenticeship exist for particular groups of individuals by
determining whether the race, sex, and ethnicity of apprentices in a
sponsor's apprenticeship program is reflective of persons available for
apprenticeship by race, sex, and ethnicity in the relevant recruitment
area. Where significant disparity exists between availability and
representation, the sponsor will be required to establish a utilization
goal pursuant to Sec. 30.6.
(b) Analysis of apprenticeship program workforce--(1) Process.
Sponsors must analyze the race, sex, and ethnic composition of their
apprentice workforce. This is a two-step process. First, each sponsor
must group all apprentices in its registered apprenticeship program by
occupational title. Next, for each occupation represented, the sponsor
must identify the race, sex, and ethnicity of its apprentices within
that occupation.
(2) Schedule of analyses. Each sponsor is required to conduct an
apprenticeship program workforce analysis at each compliance review,
and again if and when three years have passed without a compliance
review. This updated workforce analysis should be compared to the
utilization goal established at the sponsor's most recent compliance
review to determine if the sponsor is underutilized, according to the
process in paragraph (d) of this section.
(3) Compliance date. (i) Sponsors registered with a Registration
Agency as of January 18, 2017: A sponsor must conduct its first
workforce analysis, pursuant to this section, no later than two years
after January 18, 2017.
(ii) New sponsors: A sponsor registering with a Registration Agency
after the effective date of the Final Rule must conduct its initial
workforce analysis pursuant to this section no later than two years
after the date of registration.
(c) Availability analysis--(1) The purpose of the availability
analysis is to establish a benchmark against which the demographic
composition of the sponsor's apprenticeship program can be compared in
order to determine whether barriers to equal opportunity may exist with
regard to the sponsor's apprenticeship program.
(2) Availability is an estimate of the number of qualified
individuals available for apprenticeship by race, sex, and ethnicity
expressed as a percentage of all qualified persons available for
apprenticeship in the sponsor's relevant recruitment area.
(3) In determining availability, the following factors must be
considered for each major occupation group represented in the sponsor's
registered apprenticeship program standards:
(i) The percentage of individuals who are eligible for enrollment
in the apprenticeship program. within the sponsor's relevant
recruitment area broken down by race, sex, and ethnicity; and
(ii) The percentage of the sponsor's employees who are eligible for
enrollment in the apprenticeship program broken down by race, sex, and
ethnicity.
(4) In determining availability, the relevant recruitment area is
defined as the geographical area from which the sponsor usually seeks
or reasonably could seek apprentices. The sponsor must identify the
relevant recruitment area in its written affirmative action plan. The
sponsor may not draw its relevant recruitment area in such a way as to
have the effect of excluding individuals based on race, sex, or
ethnicity from consideration, and must develop a brief rationale for
selection of that recruitment area.
(5) Availability will be derived from the most current and discrete
statistical information available. Examples of such information include
census data, data from local job service offices, and data from
colleges or other training institutions.
(6) Sponsors, working with the Registration Agency, will conduct
availability analyses at each compliance review.
(d) Rate of utilization. To determine the rate of utilization, the
sponsor, working with the Registration Agency, must group each
occupational title in its apprenticeship workforce by major occupation
group and compare the racial, sex, and ethnic representation within
each major occupation group to the racial, sex, and ethnic
representation available in the relevant recruitment area, as
determined in paragraph (c) of this section. When the sponsor's
utilization of women, Hispanics or Latinos, or a particular racial
minority group is significantly less than would be reasonably expected
given the availability of such individuals for apprenticeship, the
sponsor must establish a utilization goal for the affected group in
accordance with the procedures set forth in Sec. 30.6. Sponsors are
not required or expected to establish goals where no significant
disparity in utilization rates has been found.
Sec. 30.6 Establishment of utilization goals for race, sex, and
ethnicity.
(a) Where, pursuant to Sec. 30.5, a sponsor is required to
establish a utilization goal for a particular racial, sex, or ethnic
group in a major occupation group in its apprenticeship program, the
sponsor, working with the Registration Agency, must establish a
percentage goal at least equal to the availability figure derived under
Sec. 30.5(c) for that major occupation group.
(b) A sponsor's determination under Sec. 30.5 that a utilization
goal is required constitutes neither a finding nor an admission of
discrimination.
(c) Utilization goals serve as objectives or targets reasonably
attainable by means of applying every good faith effort to make all
aspects of the entire affirmative action program work. Utilization
goals are used to measure the effectiveness of the sponsor's outreach,
recruitment, and retention efforts.
(d) In establishing utilization goals, the following principles
apply:
(1) Utilization goals may not be rigid and inflexible quotas, which
must be met, nor are they to be considered either a ceiling or a floor
for the selection of particular groups as apprentices. Quotas are
expressly forbidden.
(2) Utilization goals may not provide a sponsor with a
justification to extend a preference to any individual, select an
individual, or adversely affect an
[[Page 92114]]
individual's status as an apprentice, on the basis of that person's
race, sex, or ethnicity.
(3) Utilization goals do not create set-asides for specific groups,
nor are they intended to achieve proportional representation or equal
results.
(4) Utilization goals may not be used to supersede eligibility
requirements for apprenticeship. Affirmative action programs prescribed
by the regulations of this part do not require sponsors to select a
person who lacks qualifications to participate in the apprenticeship
program successfully, or select a less-qualified person in preference
to a more qualified one.
Sec. 30.7 Utilization goals for individuals with disabilities.
(a) Utilization goal. The Administrator of OA has established a
utilization goal of 7 percent for employment of qualified individuals
with disabilities as apprentices for each major occupation group within
which the sponsor has an apprenticeship program.
(b) Purpose. The purpose of the utilization goal established in
paragraph (a) of this section is to establish a benchmark against which
the sponsor must measure the representation of individuals with
disabilities in the sponsor's apprentice workforce by major occupation
group. The goal serves as an equal opportunity objective that should be
attainable by complying with all of the affirmative action requirements
of this part.
(c) Periodic review of goal. The Administrator of OA will
periodically review and update, as appropriate, the utilization goal
established in paragraph (a) of this section.
(d) Utilization analysis--(1) Purpose. The utilization analysis is
designed to evaluate the representation of individuals with
disabilities in the sponsor's apprentice workforce grouped by major
occupation group. If individuals with disabilities are represented in
the sponsor's apprentice workforce in any given major occupation group
at a rate less than the utilization goal, the sponsor must take
specific measures outlined in paragraphs (e) and (f) of this section.
(2) Apprentice workforce analysis--(i) Process. Sponsors are
required to analyze the representation of individuals with disabilities
within their apprentice workforce by occupation. This is a two-step
process. First, as required in Sec. 30.5, each sponsor must group all
apprentices in its registered apprenticeship program according to the
occupational titles represented in its registered apprenticeship
program. Next, for each occupation represented, the sponsor must
identify the number of apprentices with disabilities.
(ii) Schedule of evaluation. The sponsor must conduct its
apprentice workforce analysis at each compliance review, and again if
and when three years have passed without a compliance review. This
updated workforce analysis, grouped according to major occupation
group, should then be compared to the utilization goal established
under paragraph (a) of this section.
(iii) Compliance date. (A) Sponsors currently registered with a
Registration Agency: A sponsor must conduct its first workforce
analysis, pursuant to this section, no later than two years after
January 18, 2017.
(B) New sponsors: A sponsor registering with a Registration Agency
after January 18, 2017 must conduct its initial workforce analysis
pursuant to this section no later than two years after the date of
registration.
(e) Identification of problem areas. When the sponsor, working with
the Registration Agency, determines that the percentage of individuals
with disabilities in one or more major occupation groups within which a
sponsor has apprentices is less than the utilization goal established
in paragraph (a) of this section, the sponsor must take steps to
determine whether and/or where impediments to equal opportunity exist.
When making this determination, the sponsor must look at the results of
its assessment of personnel processes required by Sec. 30.9 and the
effectiveness of its outreach and recruitment efforts required by Sec.
30.8 of this part, if applicable.
(f) Action-oriented programs. The sponsor must undertake action-
oriented programs, including targeted outreach, recruitment, and
retention activities identified in Sec. 30.8, designed to correct any
problem areas that the sponsor identified pursuant to its review of
personnel processes and outreach and recruitment efforts.
(g) Utilization goal relation to discrimination. A determination
that the sponsor has not attained the utilization goal established in
paragraph (a) of this section in one or more major occupation groups
does not constitute either a finding or admission of discrimination in
violation of this part.
(h) Utilization goal not a quota or ceiling. The utilization goal
established in paragraph (a) of this section must not be used as a
quota or ceiling that limits or restricts the employment of individuals
with disabilities as apprentices.
Sec. 30.8 Targeted outreach, recruitment, and retention.
(a) Minimum activities required. Where a sponsor has found
underutilization and established a utilization goal for a specific
group or groups pursuant to Sec. 30.6 and/or where a sponsor has
determined pursuant to Sec. 30.7(f) that there are problem areas
resulting in impediments to equal employment opportunity, the sponsor
must undertake targeted outreach, recruitment, and retention activities
that are likely to generate an increase in applications for
apprenticeship and improve retention of apprentices from the targeted
group or groups and/or from individuals with disabilities, as
appropriate. In furtherance of this requirement, the sponsor must:
(1) Set forth in its written affirmative action plan the specific
targeted outreach, recruitment, and retention activities it plans to
take for the upcoming program year. Such activities must include at a
minimum:
(i) Dissemination of information to organizations serving the
underutilized group regarding the nature of apprenticeship,
requirements for selection for apprenticeship, availability of
apprenticeship opportunities, and the equal opportunity pledge of the
sponsor. These organizations may include: Community-based
organizations; local high schools; local community colleges; local
vocational, career and technical schools; and local workforce system
partners including One Stop Career Centers;
(ii) Advertising openings for apprenticeship opportunities by
publishing advertisements in appropriate media which have wide
circulation in the relevant recruitment areas;
(iii) Cooperation with local school boards and vocational education
systems to develop and/or establish relationships with pre-
apprenticeship programs targeting students from the underutilized group
to prepare them to meet the standards and criteria required to qualify
for entry into apprenticeship programs; and
(iv) Establishment of linkage agreements or partnerships enlisting
the assistance and support of pre-apprenticeship programs, community-
based organizations, advocacy organizations, or other appropriate
organizations, in recruiting qualified individuals for apprenticeship;
(2) Evaluate and document after every selection cycle for
registering apprentices the overall effectiveness of such activities;
[[Page 92115]]
(3) Refine its targeted outreach, recruitment, and retention
activities as needed; and
(4) Maintain records of its targeted outreach, recruitment, and
retention activities and records related to its evaluation of these
activities.
(b) Other activities. In addition to the activities set forth in
paragraph (a) of this section, as a matter of best practice, sponsors
are encouraged but not required to consider other outreach,
recruitment, and retention activities that may assist sponsors in
addressing any barriers to equal opportunity in apprenticeship. Such
activities include but are not limited to:
(1) Enlisting the use of journeyworkers from the underutilized
group or groups to assist in the implementation of the sponsor's
affirmative action program;
(2) Enlisting the use of journeyworkers from the underutilized
group or groups to mentor apprentices and to assist with the sponsor's
targeted outreach and recruitment activities; and
(3) Conducting exit interviews of each apprentice who leaves the
sponsor's apprenticeship program prior to receiving a certificate of
completion to understand better why the apprentice is leaving the
program and to help shape the sponsor's retention activities.
Sec. 30.9 Review of personnel processes.
(a) As part of its affirmative action program, the sponsor must,
for each registered apprenticeship program, engage in an annual review
of its personnel processes related to the administration of the
apprenticeship program to ensure that the sponsor is operating an
apprenticeship program free from discrimination based on race, color,
religion, national origin, sex, sexual orientation, age (40 or older),
genetic information, and disability. This annual review is required
regardless of whether the sponsor is underutilized as described in
Sec. 30.5(d). The review must be a careful, thorough, and systematic
one and include review of all aspects of the apprenticeship program at
the program, industry and occupation level, including, but not limited
to, the qualifications for apprenticeship, application and selection
procedures, wages, outreach and recruitment activities, advancement
opportunities, promotions, work assignments, job performance, rotations
among all work processes of the occupation, disciplinary actions,
handling of requests for reasonable accommodations, and the program's
accessibility to individuals with disabilities (including to the use of
information and communication technology). The sponsor must make any
necessary modifications to its program to ensure that its obligations
under this part are met.
(1) Compliance date. (i) Current sponsors: A sponsor that has a
registered apprenticeship program as of the effective date of this
regulation must comply with the obligations of paragraph (a) of this
section within two years of the effective date of this rule.
(ii) New sponsors: A sponsor registering with a Registration Agency
after the effective date of this regulation shall comply with the
obligations of paragraph (a) of this section within two years after the
date of registration.
(2) [Reserved]
(b) The sponsor must include a description of its review in its
written affirmative action plan and identify in the written plan any
modifications made or to be made to the program as a result of its
review.
Sec. 30.10 Selection of apprentices.
(a) A sponsor's procedures for selection of apprentices must be
included in the written plan for Standards of Apprenticeship submitted
to and approved by the Registration Agency, as required under Sec.
29.5 of this title.
(b) Sponsors may utilize any method or combination of methods for
selection of apprentices, provided that the selection method(s) used
meets the following requirements:
(1) The use of the selection procedure(s) must comply with the
Uniform Guidelines on Employee Selection Procedures (UGESP) (41 CFR
part 60-3), including the requirements to evaluate the impact of the
selection procedure on race, sex, and ethnic groups (Hispanic or
Latino/non-Hispanic or Latino) and to demonstrate job-relatedness and
business necessity for those procedures that result in adverse impact
in accordance with the requirements of UGESP.
(2) The selection procedure(s) must be uniformly and consistently
applied to all applicants and apprentices within each selection
procedure utilized.
(3) The selection procedure(s) must comply with title I of the ADA
and EEOC's implementing regulations at part 1630. This procedure(s)
must not screen out or tend to screen out an individual with a
disability or a class of individuals with disabilities, on the basis of
disability, unless the standard, test or other selection criteria, as
used by the program sponsor, is shown to be job-related for the
position in question and is consistent with business necessity.
(4) The selection procedure(s) must be facially neutral in terms of
race, color, religion, national origin, sex, sexual orientation, age
(40 or older), genetic information, and disability.
Sec. 30.11 Invitation to self-identify as an individual with a
disability.
(a) Pre-offer. (1) A sponsor adopting an affirmative action program
pursuant to Sec. 30.4 must invite applicants for apprenticeship to
inform the sponsor whether the applicant believes that that he or she
is an individual with a disability as defined in Sec. 30.2. This
invitation must be provided to each applicant when the applicant
applies or is considered for apprenticeship. The invitation may be
included with the application materials for apprenticeship, but must be
separate from the application.
(2) The sponsor must invite an applicant to self-identify as
required in paragraph (a) of this section using the language and manner
prescribed by the Administrator and published on the OA Web site.
(b) Post offer. (1) At any time after acceptance into the
apprenticeship program, but before the applicant begins his or her
apprenticeship, the sponsor must invite the applicant to inform the
sponsor whether the applicant believes that he or she is an individual
with a disability as defined in Sec. 30.2.
(2) The sponsor must invite an applicant to self-identify as
required in paragraph (b) of this section using the language and manner
prescribed by the Administrator and published on the OA Web site.
(c) Apprentices. (1) Within the timeframe specified in paragraph
(h) below, the sponsor must make a one-time invitation to each current
apprentice to inform the sponsor whether he or she is an individual
with a disability as defined in Sec. 30.2. The sponsor must make this
invitation using the language and manner prescribed by the
Administrator and published on the OA Web site.
(2) Thereafter, the sponsor must remind apprentices yearly that
they may voluntarily update their disability status.
(d) Voluntary self-identification for apprentices. The sponsor may
not compel or coerce an individual to self-identify as an individual
with a disability.
(e) Confidentiality. The sponsor must keep all information on self-
identification confidential, and must maintain it in a data analysis
file (rather than the medical files of individual apprentices) as
required under Sec. 30.12(e). The sponsor must provide
[[Page 92116]]
self-identification information to the Registration Agency upon
request. Self-identification information may be used only in accordance
with this part.
(f) Affirmative action obligations. Nothing in this section may
relieve the sponsor of its obligation to take affirmative action with
respect to those applicants and apprentices of whose disability the
sponsor has knowledge.
(g) Nondiscrimination obligations. Nothing in this section may
relieve the sponsor from liability for discrimination in violation of
this part.
(h) Compliance dates. (1) Sponsors currently registered with a
Registration Agency: A sponsor must begin inviting applicants and
apprentices to identify as individuals with disabilities, pursuant to
this section, no later than two years after the January 18, 2017. A
sponsor must also invite each of its current apprentices to voluntarily
inform the sponsor whether the apprentice believes that he or she is an
individual with a disability, as defined in Sec. 30.2, no later than
two years after January 18, 2017.
(2) New sponsors: A sponsor registering with a Registration Agency
after the effective date of this Final Rule must begin inviting
applicants and apprentices to identify as individuals with
disabilities, pursuant to this section, no later than two years after
the date of registration. A sponsor covered by this subparagraph must
also invite each of its current apprentices to voluntarily inform the
sponsor whether the apprentice believes that he or she is an individual
with a disability, as defined in Sec. 30.2, no later than two years
after the date of registration.
Sec. 30.12 Recordkeeping.
(a) General obligation. Each sponsor must collect such data and
maintain such records as the Registration Agency finds necessary to
determine whether the sponsor has complied or is complying with the
requirements of this part. Such records must include, but are not
limited to records relating to:
(1) Selection for apprenticeship, including applications, tests and
test results, interview notes, bases for selection or rejection, and
any other records required to be maintained under UGESP;
(2) The invitation to self-identify as an individual with a
disability;
(3) Information relative to the operation of the apprenticeship
program, including but not limited to job assignments in all components
of the occupation as required under Sec. 29.5(b)(3) of this title,
promotion, demotion, transfer, layoff, termination, rates of pay, other
forms of compensation, conditions of work, hours of work, hours of
training provided, and any other personnel records relevant to EEO
complaints filed with the Registration Agency under Sec. 30.14 or with
other enforcement agencies;
(4) Compliance with the requirements of Sec. 30.3;
(5) Requests for reasonable accommodation; and
(6) Any other records pertinent to a determination of compliance
with these regulations, as may be required by the Registration Agency.
(b) Sponsor identification of record. For any record the sponsor
maintains pursuant to this part, the sponsor must be able to identify
the race, sex, ethnicity (Hispanic or Latino/non-Hispanic or Latino),
and when known, disability status of each apprentice, and where
possible, the race, sex, ethnicity, and disability status of each
applicant to apprenticeship and supply this information upon request to
the Registration Agency.
(c) Affirmative action programs. Each sponsor required under Sec.
30.4 to develop and maintain an affirmative action program must retain
both the written affirmative action plan and documentation of its
component elements set forth in Sec. Sec. 30.5, 30.6, 30.7, 30.8,
30.9, and 30.11.
(d) Maintenance of records. The records required by this part and
any other information relevant to compliance with these regulations
must be maintained for 5 years from the date of the making of the
record or the personnel action involved, whichever occurs later, and
must be made available upon request to the Registration Agency or other
authorized representative in such form as the Registration Agency may
determine is necessary to enable it to ascertain whether the sponsor
has complied or is complying with this part. Failure to preserve
complete and accurate records as required by paragraphs (a), (b), and
(c) of this section constitutes noncompliance with this part.
(e) Confidentiality and use of medical information. (1) Any
information obtained pursuant to this part regarding the medical
condition or history of an applicant or apprentice must be collected
and maintained on separate forms and in separate medical files and
treated as a confidential medical record, except that:
(i) Supervisors and managers may be informed regarding necessary
restrictions on the work or duties of the applicant or apprentice and
necessary accommodations;
(ii) First aid and safety personnel may be informed, when
appropriate, if the disability might require emergency treatment; and
(iii) Government officials engaged in enforcing this part, the laws
administered by OFCCP, or the ADA, must be provided relevant
information on request.
(2) Information obtained under this part regarding the medical
condition or history of any applicant or apprentice may not be used for
any purpose inconsistent with this part.
(f) Access to records. Each sponsor must permit access during
normal business hours to its places of business for the purpose of
conducting on-site EEO compliance reviews and complaint investigations
and inspecting and copying such books, accounts, and records, including
electronic records, and any other material the Registration Agency
deems relevant to the matter under investigation and pertinent to
compliance with this part. The sponsor must also provide the
Registration Agency access to these materials, including electronic
records, off-site for purposes of conducting EEO compliance reviews and
complaint investigations. Upon request, the sponsor must provide the
Registration Agency information about all format(s), including specific
electronic formats, in which its records and other information are
available. Information obtained in this manner will be used only in
connection with the administration of this part or other applicable EEO
laws.
Sec. 30.13 Equal employment opportunity compliance reviews.
(a) Conduct of compliance reviews. The Registration Agency will
regularly conduct EEO compliance reviews to determine if the sponsor
maintains compliance with this part, and will also conduct EEO
compliance reviews when circumstances so warrant. An EEO compliance
review may consist of, but is not limited to, comprehensive analyses
and evaluations of each aspect of the apprenticeship program through
off-site reviews, such as desk audits of records submitted to the
Registration Agency, and on-site reviews conducted at the sponsor's
establishment that may involve examination of records required under
this part; inspection and copying of documents related to recordkeeping
requirements of this part; and interviews with employees, apprentices,
journeyworkers, supervisors, managers, and hiring officials.
(b) Notification of compliance review findings. Within 45 business
days of completing an EEO compliance review, the Registration Agency
must present a written Notice of Compliance Review Findings to the
sponsor's contact person
[[Page 92117]]
through registered or certified mail, with return receipt requested. If
the compliance review indicates a failure to comply with this part, the
registration agency will so inform the sponsor in the Notice and will
set forth in the Notice the following:
(1) The deficiency(ies) identified;
(2) How to remedy the deficiency(ies);
(3) The timeframe within which the deficiency(ies) must be
corrected; and
(4) Enforcement actions may be undertaken if compliance is not
achieved within the required timeframe.
(c) Compliance. (1) When a sponsor receives a Notice of Compliance
Review Findings that indicates a failure to comply with this part, the
sponsor must, within 30 business days of notification, either implement
a compliance action plan and notify the Registration Agency of that
plan or submit a written rebuttal to the Findings. Sponsors may also
seek to extend this deadline one time by up to 30 days for good cause
shown. If the Registration Agency upholds the Notice after receiving a
written response, the sponsor must implement a compliance action plan
within 30 days of receiving the notice from the Registration Agency
upholding its Findings. The compliance action plan must include, but is
not limited to, the following provisions:
(i) A specific commitment, in writing, to correct or remediate
identified deficiency(ies) and area(s) of noncompliance;
(ii) The precise actions to be taken for each deficiency
identified;
(iii) The time period within which the cited deficiency(ies) will
be remedied and any corrective program changes implemented; and
(iv) The name of the individual(s) responsible for correcting each
deficiency identified.
(2) Upon the Registration Agency's approval of the compliance
action plan, the sponsor may be considered in compliance with this part
provided that the compliance action plan is implemented.
(d) Enforcement actions. Any sponsor that fails to implement its
compliance action plan within the specified timeframes may be subject
to an enforcement action under Sec. 30.15.
Sec. 30.14 Complaints.
(a) Requirements for individuals filing complaints--(1) Who may
file. Any individual who believes that he or she has been or is being
discriminated against on the basis of race, color, religion, national
origin, sex, sexual orientation, age (40 or older), genetic
information, or disability with regard to apprenticeship, or who
believes he or she has been retaliated against as described in Sec.
30.17, may, personally or through an authorized representative, file a
written complaint with the Registration Agency with whom the
apprenticeship program is registered.
(2) Time period for filing a complaint. Generally, a complaint must
be filed within 300 days of the alleged discrimination or specified
failure to follow the equal opportunity standards. However, for good
cause shown, the Registration Agency may extend the filing time. The
time period for filing is for the administrative convenience of the
Registration Agency and does not create a defense for the respondent.
(3) Contents of the complaint. Each complaint must be made in
writing and must contain the following information:
(i) The complainant's name, address and telephone number, or other
means for contacting the complainant;
(ii) The identity of the respondent (the individual or entity that
the complainant alleges is responsible for the discrimination);
(iii) A short description of the events that the complainant
believes were discriminatory, including but not limited to when the
events took place, what occurred, and why complainant believes the
actions were discriminatory (for example, because of his or her race,
color, religion, sex, sexual orientation, national origin, age (40 or
older), genetic information, or disability).
(iv) The complainant's signature or the signature of the
complainant's authorized representative.
(b) Requirements of sponsors. Sponsors must provide written notice
to all applicants for apprenticeship and all apprentices of their right
to file a discrimination complaint and the procedures for doing so. The
notice must include the address, phone number, and other contact
information for the Registration Agency that will receive and
investigate complaints filed under this part. The notice must be
provided in the application for apprenticeship and must also be
displayed in a prominent, publicly available location where all
apprentices will see the notice. The notice must contain the following
specific wording:
Your Right to Equal Opportunity
It is against the law for a sponsor of an apprenticeship program
registered for Federal purposes to discriminate against an
apprenticeship applicant or apprentice based on race, color,
religion, national origin, sex, sexual orientation, age (40 years or
older), genetic information, or disability. The sponsor must ensure
equal opportunity with regard to all terms, conditions, and
privileges associated with apprenticeship. If you think that you
have been subjected to discrimination, you may file a complaint
within 300 days from the date of the alleged discrimination or
failure to follow the equal opportunity standards with [INSERT NAME
OF REGISTRATION AGENCY, ADDRESS, PHONE NUMBER, EMAIL ADDRESS, AND
CONTACT NAME OF INDIVIDUAL AT THE REGISTRATION AGENCY WHO IS
RESPONSIBLE FOR RECEIVING COMPLAINTS]. You may also be able to file
complaints directly with the EEOC, or State fair employment
practices agency. If those offices have jurisdiction over the
sponsor/employer, their contact information is listed below. [INSERT
CONTACT INFORMATION FOR EEOC AS PROVIDED ON ``EEO IS THE LAW
POSTER,'' AND CONTACT INFORMATION FOR STATE FEPA AS PROVIDED ON
STATE FEPA POSTER, AS APPLICABLE]
Each complaint filed must be made in writing and include the
following information:
1. Complainant's name, address and telephone number, or other
means for contacting the complainant;
2. The identity of the respondent (i.e. the name, address, and
telephone number of the individual or entity that the complainant
alleges is responsible for the discrimination);
3. A short description of the events that the complainant
believes were discriminatory, including but not limited to when the
events took place, what occurred, and why the complainant believes
the actions were discriminatory (for example, because of his/her
race, color, religion, sex, sexual orientation, national origin, age
(40 or older), genetic information, or disability);
4. The complainant's signature or the signature of the
complainant's authorized representative.
(c) Requirements of the Registration Agency--(1) Conduct
investigations. The investigation of a complaint filed under this part
will be undertaken by the Registration Agency, and will proceed as
expeditiously as possible. In conducting complaint investigations, the
Registration Agency must:
(i) Provide written notice to the complainant acknowledging receipt
of the complaint;
(ii) Contact the complainant, if the complaint form is incomplete,
to obtain full information necessary to initiate an investigation;
(iii) Initiate an investigation upon receiving a complete
complaint;
(iv) Complete a thorough investigation of the allegations of the
complaint and develop a complete case record that must contain, but is
not limited to, the name, address, and telephone number of each person
interviewed, the interview statements, copies, transcripts, or
summaries (where appropriate) of pertinent documents, and a narrative
report of the investigation with references to exhibits and other
evidence which relate to the alleged violations; and
[[Page 92118]]
(v) Provide written notification of the Registration Agency's
findings to both the respondent and the complainant.
(2) Seek compliance. Where a report of findings from a complaint
investigation indicates a violation of the nondiscrimination
requirements of this part, the Registration Agency should attempt to
resolve the matter quickly at the Registration Agency level whenever
appropriate. Where a complaint of discrimination cannot be resolved at
the Registration Agency level to the satisfaction of the complainant,
the Registration Agency must refer the complaint to other Federal,
State or local EEO agencies, as appropriate.
(3) Referrals to other EEO agencies. The Registration Agency, at
its discretion, may choose to refer a complaint immediately upon its
receipt or any time thereafter to:
(i) The EEOC;
(ii) The United States Attorney General;
(iii) The Department's OFCCP; or
(iv) For an SAA, to its Fair Employment Practices Agency.
(4) Alternative complaint procedures. An SAA may adopt a complaint
review procedure differing in detail from that given in this section
provided it is submitted for review to and receives approval by the
Administrator.
Sec. 30.15 Enforcement actions.
Where the Registration Agency, as a result of a compliance review,
complaint investigation, or other reason, determines that the sponsor
is not operating its apprenticeship program in accordance with this
part, the Registration Agency must notify the sponsor in writing of the
specific violation(s) identified and may:
(a) Offer the sponsor technical assistance to promote compliance
with this part.
(b) Suspend the sponsor's right to register new apprentices if the
sponsor fails to implement a compliance action plan to correct the
specific violation(s) identified within 30 business days from the date
the sponsor is so notified of the violation(s), or, if the sponsor
submits a written response to the findings of noncompliance, fails to
implement a compliance action plan within 30 days of receiving the
Registration Agency's notice upholding its initial noncompliance
findings. If the sponsor has not implemented a compliance action plan
within 30 business days of notification of suspension, the Registration
Agency may institute proceedings to deregister the program in
accordance with the deregistration proceedings set forth in part 29 of
this chapter, or if the Registration Agency does not institute such
proceedings within 45 days of the start of the suspension, the
suspension is lifted.
(c) Take any other action authorized by law. These other actions
may include, but are not limited to:
(1) Referral to the EEOC;
(2) Referral to an appropriate State fair employment practice
agency; or
(3) Referral to the Department's OFCCP.
Sec. 30.16 Reinstatement of program registration.
An apprenticeship program that has been deregistered pursuant to
this part may be reinstated by the Registration Agency upon
presentation of adequate evidence that the apprenticeship program is
operating in accordance with this part.
Sec. 30.17 Intimidation and retaliation prohibited.
(a) A participant in an apprenticeship program may not be
intimidated, threatened, coerced, retaliated against, or discriminated
against because the individual has:
(1) Filed a complaint alleging a violation of this part;
(2) Opposed a practice prohibited by the provisions of this part or
any other Federal or State equal opportunity law;
(3) Furnished information to, or assisted or participated in any
manner, in any investigation, compliance review, proceeding, or hearing
under this part or any Federal or State equal opportunity law; or
(4) Otherwise exercised any rights and privileges under the
provisions of this part.
(b) Any sponsor that permits such intimidation or retaliation in
its apprenticeship program, including by participating employers, and
fails to take appropriate steps to prevent such activity will be
subject to enforcement action under Sec. 30.15.
Sec. 30.18 State apprenticeship agencies.
(a) State plan. (1) Within 1 year of January 18, 2017, unless an
extension for good cause is sought and granted by the Administrator, an
SAA that seeks to obtain or maintain recognition under Sec. 29.13 of
this title must submit to OA a State EEO plan that:
(i) Includes, at a minimum, draft State apprenticeship authorizing
language corresponding to the requirements of this part; and
(ii) Requires all apprenticeship programs registered with the State
for Federal purposes to comply with the requirements of the State's EEO
plan within 180 days from the date that OA provides written approval of
the State EEO plan submitted under this paragraph (a)(1).
(2) Upon receipt of the State's EEO plan, OA will review the plan
to determine if the plan conforms to this part. OA will:
(i) Grant the SAA continued recognition during this review period;
(ii) Provide technical assistance to facilitate conformity, and
provide written notification of the areas of nonconformity, if any; and
(iii) Upon successful completion of the review process, notify the
SAA of OA's determination that the State's EEO plan conforms to this
part.
(3) If the State does not submit a revised State EEO plan that
addresses identified non-conformities within 90 days from the date that
OA provides the SAA with written notification of the areas of
nonconformity, OA will begin the process set forth in Sec. 29.14 of
this title to rescind recognition of the SAA.
(4) An SAA that seeks to obtain or maintain recognition must obtain
the Administrator's written concurrence in any proposed State EEO plan,
as well as any subsequent modification to that plan, as provided in
Sec. 29.13(b)(9) of this title.
(b) Recordkeeping requirements. A recognized SAA must keep all
records pertaining to program compliance reviews, complaint
investigations, and any other records pertinent to a determination of
compliance with this part. These records must be maintained for five
years from the date of their creation.
(c) Retention of authority. As provided in Sec. 29.13 of this
chapter, OA retains the full authority to:
(1) Conduct compliance reviews of all registered apprenticeship
programs;
(2) Conduct complaint investigations of any program sponsor to
determine whether an apprenticeship program registered for Federal
purposes is operating in accordance with this part;
(3) Deregister for Federal purposes an apprenticeship program
registered with a recognized SAA as provided in Sec. Sec. 29.8(b) and
29.10 of this chapter; and
(4) Refer any matter pertaining to paragraph (c)(1) or (2) of this
section to the following:
(i) The EEOC or the U.S. Attorney General with a recommendation for
the institution of an enforcement action under title VII of the Civil
Rights Act of 1964, as amended; the ADEA; GINA, or title I of the ADA;
(ii) The Department's OFCCP with a recommendation for the
institution of agency action under Executive Order 11246; or section
503 of the Rehabilitation Act of 1973, as amended; or
[[Page 92119]]
(iii) The U.S. Attorney General for other action as authorized by
law.
(d) Derecognition. A recognized SAA that fails to comply with the
requirements of this section will be subject to derecognition
proceedings, as provided in Sec. 29.14 of this chapter.
Sec. 30.19 Exemptions.
Requests for exemption from these regulations, or any part thereof,
must be made in writing to the Registration Agency and must contain a
statement of reasons supporting the request. Exemptions may be granted
for good cause by the Registration Agency. State Apprenticeship
Agencies must receive approval to grant an exemption from the
Administrator, prior to granting an exemption from these regulations.
[FR Doc. 2016-29910 Filed 12-16-16; 8:45 am]
BILLING CODE 4510-FR-P