Insights on recent legal developments and trends affecting Joint Apprenticeship Training Programs Volume 2016-1, January In This Issue New Proposed Regulations for New Proposed Regulations for Apprenticeship Apprenticeship Programs: Changes Programs: Changes to Equal Employment Opportunity Regulations to Equal Employment Opportunity Regulations New Proposed Regulations: Published: November 6, 2015 with comments due January 5, 2016 Last revision to this section was in 1978 On November 6, 2015, the Department of Labor (DOL) issued a Notice of Proposed Rulemaking to update the existing equal employment opportunity regulations the National Apprenticeship Act of 1937. The current regulations (29 CFR part 30) prohibit discrimination in apprenticeship programs on the basis of race, color, religion, national origin, and sex, and require that sponsors for a program take affirmative action to provide equal opportunity in the apprenticeship program. The proposed regulations would update equal opportunity standards in Part 30 of the regulations to cover more protected bases upon which a sponsor must not discriminate, strengthen the affirmative action provisions by requiring certain actions from the sponsor to satisfy the affirmative action obligations and by requiring affirmative action for individuals with disabilities. The last time these regulations were amended was in 1978 to add women to the affirmative action programs. In the spring of 2010, the Office of Apprenticeship division of the DOL conducted a series of town hall meetings across the nation, a webinar, and listening sessions with agency stakeholders to elicit their recommendations for updating Part 30 of the regulations. Through these sessions, the Office of Apprenticeship received input from interested stakeholders, including State Apprenticeship Agencies, National Association of State and Territorial Apprenticeship Directors, advocacy organizations, registered apprenticeship program sponsors such as labormanagement organizations, employers, and employer associations; journeyworkers; former apprentices; and registered apprentices. Recurring themes in these sessions included the need for increased outreach efforts to attract women and minorities; a focus on equal training and retention of apprentices; stricter enforcement of Equal Employment Opportunity obligations; clarification of compliant procedures; and 1
progressive actions by Registration Agencies to achieve sponsor compliance with the regulations. DOL concluded women, minorities and disabled individuals face substantial barriers to entry into and completion of apprenticeship programs. The DOL concluded that women and minorities continue to face substantial barriers to entry into and completion of registered apprenticeships despite their availability in industry sectors covered by apprenticeship programs. For instance, the representation of women in construction apprenticeship programs in 2013 (2.3%) was lower than the representation of women in the construction industry (8.9%). Factors that affect women s low representation in construction include negative stereotypes about women s ability to perform construction work and pervasive sexual harassment and, taken together, is believed to act as a significant barrier to women entering the construction trades. Similarly, minorities also show lower percentages entering apprenticeship programs than the workforce, which indicated to the DOL that affirmative action must be tailored to address the specific disparities by minority groups. The DOL strongly believes people with disabilities should be included in the apprenticeship programs affirmative action efforts since individuals with disabilities experience high levels of unemployment. According to 2012 data, 17.8% of working age people with disabilities were in the labor force in March 2011 compared to 63.9% of working age people with no disability. The unemployment rate for individuals with disabilities was 13.4% compared with 7.9% for individuals without disabilities. In addition, the Equal Employment Opportunity landscape has evolved since the last amendment to Part 30. In 1990, Congress enacted the Americans with Disabilities Act (ADA) prohibiting employers from discriminating in employment against qualified individuals on the basis of disability. In 2008, the Congress passed amendments to this act to make it easier for an individual to establish that he or she has a disability within the meaning of the ADA. For the reasons stated, the DOL has issued proposed regulations revising Part 30 to update the Equal Employment Opportunity regulations and affirmative action plans. The DOL will be accepting comments on these proposed regulations through January 5, 2016. There is no set timeline for when the final regulations will be issued. Additional Bases for Discrimination Protection Sponsors would have 180 days after the effective date of a final rule to amend their standards. The DOL adds several additional bases for impermissible discrimination in apprenticeship programs. These include the following: 1. Age (40 and older) 2. Genetic information 3. Sexual orientation 4. Disability 5. Sex (which is currently a protected basis) is clarified to include gender identity, transgender status, and stereotypes about how males and 2
females are expected to look, speak, or act; and pregnancy, childbirth and related conditions According to the DOL, these prohibitions already apply to many apprenticeship programs through federal, state and local antidiscrimination laws and regulations. Under the proposal, sponsors would have 180 days after the effective date of a final rule to amend their Equal Employment Opportunity standards. Mandatory Affirmative Action Obligations Applicable to All Sponsors Currently, most of the obligations regarding an Affirmative Action Program applies only to apprenticeship programs with five or more participants. The proposed regulations strengthen affirmative action obligations to all sponsors, regardless of size. Sponsors will be required to designate an individual to be responsible and accountable for overseeing the development of the sponsor s affirmative action program. The designation is expected to create a self-monitoring mechanism within each apprenticeship program to strengthen the program s commitment to equal opportunity. The DOL anticipates this requirement being fulfilled by individuals providing coordination and administrative oversight to the programs. The sponsors would be required 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 function is currently a suggestive activity for programs to meet their outreach and recruitment obligations. Under the proposed regulations, this communication would become mandatory for all sponsors, regardless of size. The proposal identifies specific minimum activities that a sponsor would be required to undertake to satisfy the obligation to distribute internally the sponsor s equal opportunity policy. The activities include (i) publishing the equal opportunity pledge in apprenticeship standards and appropriate publications; (ii) posting the pledge on bulletin boards, including through electronic media, accessible to apprentices and applicants for apprenticeship; (iii) conducting orientation and periodic information sessions for apprentices and all of a program s personnel involved in the recruitment, screening, selection, promotion, training, and disciplinary actions of apprentices to inform, remind, and ensure that these individuals understand how to implement the sponsor s equal opportunity policy with regard to apprenticeship; and (iv) maintaining records necessary to demonstrate compliance with this requirement. A sponsor, regardless of size, would be required to ensure that its outreach and recruitment efforts for apprentices extend to all persons available and qualified for 3
apprenticeship within the sponsor s recruitment area regardless of race, sex, ethnicity, or disability status. Sponsors would be required to develop a list of recruitment sources that would generate referrals from all demographic groups, including women, minorities, and individuals with disabilities, with contact information for each source. The program would need to notify these sources in advance of any apprenticeship opportunities. The specific notice period is not provided in the proposed regulations, but the proposal does state that at least 30 days advance notice is preferred. Examples of relevant recruitment sources include, but are not limited to, the public workforce system s One-Stop career centers and local workforce investment boards, community-based organizations, community colleges, vocational and technical education schools, pre-apprenticeship programs, and Federally funded, youth job-training programs such as YouthBuild and Job Corps or their successors. A new section is proposed entitled Maintain workplace free from harassment, intimidation, and retaliation, which requires a sponsor to develop and implement procedures to ensure that apprentices are not harassed because of their race, color, religion, national origin, sex, sexual orientation, age (40 and older), genetic information, or disability, and to ensure the workplace is free from harassment, intimidation, and retaliation. To accomplish this, sponsors would be required to (i) communicate to all personnel that harassing conduct will not be tolerated; (ii) provide anti-harassment training to all personnel; (iii) make all facilities and apprenticeship activities available without regard to race, color, religion, national origin, sex, sexual orientation, age (40 or older), genetic information, and 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; and (iv) establish and implement procedures for filing, processing, and timely resolving complaints about harassment based on race, color, religion, national origin, sex, sexual orientation, age (40 and older), and disability. Affirmative Action Restructuring As proposed, sponsors would have one year to prepare and approve of an updated affirmative action program. The proposed regulations would expand the definition of an affirmative action plan to include that the premise underlying an affirmative action program is that absent discrimination, 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. The proposal would allow at least one year for the sponsors to prepare and approve of the first updated affirmative action program and the Registration Agency will provide technical assistance to sponsors seeking advice or clarification on the creation, drafting, and submission of its written plan. The sponsor would not be required to submit the written plan to the Registration Agency, but must provide it upon request. 4
The proposed regulations would require the following elements to be included in an affirmative action program: (i) utilization analysis for race, sex, and ethnicity; (ii) establishment of utilization goals for race, sex and ethnicity, if necessary; (iii) establishment of utilization analyses and goal setting for individuals with disabilities; (iv) targeted outreach, recruitment, and retention, if necessary; and (v) a review of personnel processes. The current regulations require a sponsor to complete an internal review of its affirmative action plan annually. The proposed regulations would allow the review to be extended to two years if the sponsor can provide it is not underutilized in any of the protected bases (race, sex and disability) and that its review of personnel practices did not require any modification to meet nondiscrimination objectives. Utilization Analysis and Goal Setting for Race, Sex and Ethnicity The proposed regulations would provide guidelines for assessing whether barriers to entering the program possibly 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 in the sponsor s relevant recruitment area. When a disparity exists between availability and the actual representation in the sponsor s apprenticeship program, the sponsor would be required to establish a utilization goal. The first step in determining whether a group is being underutilized would require the sponsors to identify the racial, sex, and ethnic composition of its broader workforce grouped by industries, such as construction, and not separate occupational titles, in the relevant area. The second step would be to determine the availability of qualified individuals for apprenticeship by race, sex, and ethnicity. The sponsor would need to examine two sets of people: (i) the current workforce in onsite construction occupations in the relevant area; and (ii) the current employment in non-construction occupations that employ workers who have similar abilities and interests to the workers in the construction occupation. To determine the availability percentage, sponsors are directed to use the most current and discrete statistical information available. Sponsors in the construction industry are told to look to any data provided by the [Office of Federal Contract Compliance Programs (OFCCP)] through their regulations at 41 CFR Part 60-4 which governs the affirmative action obligations of contractors and subcontractors holding any federal or federally-assisted construction contract in excess of $10,000. If the program is underutilized compared to availability in the industry for women, ethnic, and/or particular racial minority groups, sponsors would be required to 5
establish utilization goals. The utilization goals will be established for each discrete racial, gender, or ethnic group that the sponsor finds is underutilized in an industry. Sponsors can no longer develop goals based on minorities in the aggregate. Utilization Analysis and Goal Setting for Individuals with Disabilities NEW REQUIREMENT: Requiring analysis and goal setting if the apprenticeship program does not meet 7% utilization rate for individuals with disabilities. This is a completely new requirement. Instead of establishing utilization goals based on the industry as set forth above, this new proposed section would establish a single, national utilization goal of seven percent (7%) for individuals with disabilities. If the program utilization rate falls below the seven percent (7%) rate, the sponsor must take specific measures to address this disparity. The proposed regulations rely on voluntary self-identification by the individual apprentices to determine the disability rates conducted when (i) an applicant is considered for apprenticeship; (ii) after an applicant is accepted into the program but before they start their apprenticeship; and (iii) after they are enrolled in the program. If the utilization rates are below the seven percent (7%), the sponsor must take steps to determine whether impediments to equal opportunity exist, including looking at personnel processes and the effectiveness of its outreach and recruitment efforts. If a problem or barrier is found, the sponsor must take action steps to correct the problem areas, including targeted outreach, recruitment, and retention activities. Usefulness of Outreach, Recruitment and Retention Activities Sponsors would be required to evaluate and document the effectiveness of its outreach, recruitment, and retention activities after every selection cycle for registering apprentices. The precise contents of this evaluation and documentation is not set forth, but the DOL expects the evaluation and documentation to include at a minimum the criteria used to determine the effectiveness of each activity and the conclusion to its effectiveness. The sponsor should refine its activities over time based on the evaluation and documentation. Records will need to be maintained of the outreach, recruitment and retention steps utilized. The sponsor is encouraged to evaluate any barriers to equal opportunity in apprenticeship. The sponsors may look to (i) use of journeyworkers and apprentices from the underutilized groups to help with the affirmative action program; (ii) use of journeyworkers and apprentices from the underutilized groups to serve as mentors and assist with the targeted outreach and recruitment; and (iii) conducting exit interviews with each apprentice leaving the program prior to graduation to determine why they are leaving to help shape retention efforts. 6
Review of Personnel Processes The sponsor would be required to review its personnel processes on an annual bases as part of the affirmative action program. This review would include reviewing qualifications for apprenticeship, 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 and make all modifications to ensure compliance with the equal opportunity obligations of the regulations. A description of how this review is conducted would need to be included in the affirmative action plan. Selection of Apprentices The DOL currently allows sponsors to use the following selection methods: selection on the basis of rank from an eligible pool of applicants; random selection from a pool of eligible applicants; selection from a pool of current employees; an alternative selection method approved by a registration authority that may include interviews as a factor or rely on pre-apprenticeship programs; or some combination of the above methods. Direct entry is also a permissible method, such as for Job Corps, YouthBuild graduates, veterans in the NABTU s Helmets to Hardhats program and the United Association s Veterans in Piping Program. The regulations would be changed to allow program sponsors to use any method for the selection of apprentices if the method complies with four requirements. First, the selection method must comply with the Uniform Guidelines on Employee Selection Procedures at 41 CFR Part 60-3. Second, the method must be uniformly and consistently applied to all applicants for apprenticeship and apprentices. Third, the selection method must comply with the qualification standards set forth in Title I of the ADA. Finally, the selection method must be facially neutral in terms of race, color, religion, national origin, sex, sexual orientation, age, genetic information, pregnancy, and disability. Recordkeeping This section is broadened in the proposed regulations to include medical information. Any information that is collected that includes information on the medical condition of an applicant or apprentice, including disability information, must be kept in separate medical files and treated as confidential. The amount of time to keep records is also proposed to be reduced from five years to three. 7
Equal Employment Opportunity Compliance Reviews The DOL may perform equal employment opportunity compliance reviews to assess compliance with Part 30 of the regulations. The process used in the reviews would be set out in more detail under the proposed regulations, including the Registration Agency providing its findings within 45 business days of completing the compliance review. The Notice must include whether any deficiencies were found, how they are to be remedied and the time frame within which the sponsor has to correct the deficiencies. The Notice must also notify the sponsor that sanctions may be imposed for failing to correct the deficiencies. The proposed regulations address how the sponsor must act when receiving a Notice of Compliance Review Findings with a deficiency. The sponsor must implement a compliance action plan within 30 business days of receiving the Notice and notify the Registration Agency of the action. The plan must contain a specific written, action-oriented program that demonstrates a commitment to correct or remediate the identified deficiencies. The specific actions the plan sponsor intends to take must be set forth and the time period when those actions will occur. The plan must also set forth who is the responsible party for each action. A sponsor that does not implement its compliance action plan would be subject to enforcement action. If a program is not operating in accordance with Part 30 and the sponsor fails to voluntarily take corrective action, the DOL will initiate deregistration proceedings or refer the matter to the Equal Employment Opportunity Commission or the United States Attorney General with a recommendation for initiation of court action. A new enforcement procedure is proposed. It would suspend registration of a new apprentice in a program until the sponsor has achieved compliance through the completion of a compliance action plan or until a final order is issued in formal deregistration proceedings. If a sponsor has not taken the necessary corrective action within 3o days of receiving a notice of suspension, the Registration Agency will initiate deregistration proceedings. Complaints The proposed revisions to the compliant procedure in the regulations would eliminate the use of private review bodies. The DOL received feedback that private review bodies were rarely used, and when used, such bodies could not objectively evaluate or prescribe remedies for complaints of discrimination. This change would require all complaints to be filed with the Registration Agency. Uniform procedures will be set forth for the Registration Agencies to follow for complaints, including 8
investigating in a timely manner, notifying the parties of findings and attempting to resolve complaints quickly through voluntary compliance. If voluntary compliance cannot resolve the issue, the Registration Agency may refer a matter to existing Federal and State resources and authority, for instance the Equal Employment Opportunity Commission. Disclosure The information in this Bulletin is intended for general information purposes only. It does not constitute legal advice. The reader should consult with knowledgeable legal counsel to determine how applicable laws apply to specific facts and situations. No attorney-client relationship has been or will be formed by any communication(s) to, from or with this JATC Bulletin. This JATC Bulletin is based on the most current information at the time it is written. Since it is possible that laws or other circumstances may have changed since publication, please call to discuss any action you may be considering as a result of reading this Bulletin. 9