In 2016, the United States Department of Labor (“DOL”) issued updated regulations placing certain obligations on apprenticeship program sponsors to take affirmative action in relation to registered apprenticeship programs in an attempt to reach a larger and more diverse pool of apprenticeship candidates.
These updated regulations were phased in over a two-year period beginning in January 2017, with the final provisions scheduled to go into effect on January 18, 2019.
The updated regulations primarily apply to organizations that administer apprenticeship training programs, known as program “Sponsors.” However, the regulations place some burdens on employers who employ apprentices through registered apprenticeship programs as well.
Requirements That Went Into Effect January/June 2017
The following provisions of the revised regulations went into effect either January 18, 2017, or July 18, 2017. Sponsors should ensure that they are currently compliant with these requirements.
I. Anti-Discrimination Obligations
Sponsors are not allowed to use membership in the following protected classes as selection criteria for participation in an apprenticeship program, or as the basis for any adverse employment actions:
- National Origin
- Sexual Orientation
- Age (40 or older)
- Genetic Information
The bolded classes above were added to the list of non-discriminatory criteria in July 2017.
II. Sponsors Must Not Retaliate Against Individuals Who Oppose Illegal Practices Related to Apprenticeship Programs and Opportunities
The updated regulations prohibit retaliating against employees/apprentices for filing a complaint of discrimination related to an apprenticeship program, filing a complaint of harassment, or otherwise opposing an apprenticeship practice prohibited by law.
III. Sponsors Must Conduct Regular Anti-Harassment Training
Sponsors must provide anti-harassment training to its program’s: apprentices, journeymen, instructors, and other employees who regularly work with apprentices. The DOL has additionally taken the position that Sponsors must coordinate with its participating employers – i.e. employers who receive apprentices through the Sponsor’s program – to ensure that the participating employer’s employees who regularly work with apprentices receive anti-harassment training as well.
The DOL’s Employment and Training Administration has issued model training materials and guidance regarding the how to conduct the required training, available here.
At a minimum, the training must contain the following information:
- The definition of harassment and the types of conduct that constitute unlawful harassment based on protected class status.
- A statement that harassing conduct will not be tolerated.
- The right of employees to file a harassment complaint.
IV. Sponsors Must Adopt and Disseminate an Equal Opportunity Pledge
Sponsors must adopt and post an “Equal Opportunity Pledge.” This pledge must be included in apprenticeship opportunity announcements and postings, and published in appropriate publications, such as apprentice/employee handbooks and policy manuals, and posted on the Sponsor’s bulletin boards/on the Sponsor’s intranet site.
The Equal Opportunity Pledge should take the following form:
[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.
V. Sponsors Must Engage in Targeted Outreach Efforts to Seek Underrepresented Candidates
Sponsors must develop, and update annually, a list of recruitment sources that will generate referrals for apprenticeship candidates. Examples of recruitment sources include: job centers, workforce centers, newspapers, youth programs, community colleges, and unemployment agencies.
The regulations also state that “advance notice” – defined as at least 30 days’ notice – of any apprenticeship openings should be given to recruitment sources, in order to give the recruitment source enough time to find qualified and diverse candidates.
Requirements That Go Into Effect January 19, 2019
Effective January 19, 2019, a number of provisions of the updated apprenticeship regulations go into effect that impose additional requirements. Apprenticeship programs in existence prior to January 18, 2017, must meet the following requirements by January 19, 2019. For programs registered after January 19, 2017, these new requirements must be met within 2 years of registration.
I. Initial Review of Personnel Policies
By January 19, 2019, Sponsors must complete an initial review of their personnel policies to ensure that they are operating free from discrimination based on protected class status. All aspects of the apprenticeship program must be reviewed, including the following:
- Apprenticeship qualifications;
- Application and selection procedures;
- Outreach and recruitment activities;
- Advancement opportunities;
- Work assignments;
- Job performance of apprentices;
- Rotations among all work processes of the occupation;
- Accommodation requests;
- Accessibility of the program to disabled individuals.
II. Affirmative Action Plan Obligations
By January 19, 2019, Sponsors must develop a written Affirmative Action Plan (“AAP”) related to their apprenticeship program. The AAP must identify affirmative steps that the Sponsor is undertaking in the subsequent plan year to create an environment free from discrimination and steps to address any barriers to equal opportunity in apprenticeship that may be present. The AAP must be updated annually.
Sponsors must include the following elements in their AAP:
- A review of their personnel processes to ensure that those processes are free from potential discrimination (this can be done in conjunction with the personnel policy review described above).
- The designation of an AAP Coordinator with the responsibility for implementing and monitoring the plan.
- A list of the ways that the plan and its existence will be disseminated internally, for example, by conducting information sessions or publishing the AAP.
- The identification of all internal auditing and reporting systems.
- A list of the procedures an individual can follow to file a complaint about possible violations of the plan.
- Identification of outreach, recruitment, and retention efforts the plan Sponsor will engage in during the following plan year, for example, participating in job fairs or advertising in local publications or newspapers.
- The results of a workforce analysis.
1. The Workforce Analysis
As part of the AAP, Sponsors must conduct a workforce analysis. The first workforce analysis must be completed by January 18, 2019, and again conducted at every compliance review (discussed below) and/or if three years have passed without a compliance review.
During the workforce analysis, Sponsors must identify the racial, sex, and ethnic composition of its apprenticeship workforce, as well as identify the composition of its workforce regarding individuals with disabilities.
2. Compliance Checks and Utilization/Availability Analyses
The Sponsor’s Registration Agency, i.e. the agency with which the apprenticeship program is registered, will periodically select Sponsors for a compliance review to ensure that the Sponsor is meeting its obligations under the regulations. This effectively operates as an audit of the Sponsor’s program.
During an annual compliance reviews, the Registration Agency will work with the Sponsor to conduct an Availability Analysis. Under the availability analysis, Sponsors determine the racial, sex, and ethnic representation of individuals available in the relevant recruitment area, and then conduct a utilization analysis to determine how the composition of their apprenticeship workforce compares to the demographic composition of the available “pool” of apprentices.
Notably, Utilization and Availability Analyses only need to be conducted in conjunction with an annual compliance review, and Sponsors will be assisted by the registration agency in conducting the analysis.
III. Sponsors Must Invite Apprentices and Applicants to Voluntary Self-Identify Regarding Disabilities
Beginning January 18, 2019, Sponsors must invite apprenticeship applicants to voluntarily inform the Sponsor whether the applicant believes that he or she is an individual with a disability. Applicants must be asked to voluntarily self-identify twice: first in conjunction with their initial application and again after an offer of employment has been made but before the apprentice has begun to work.
For current apprentices, Sponsors must make a one-time request for those individuals to voluntarily self-identify as disabled by January 19, 2019. Following this one-time request, Sponsors must remind its apprentices, on an annual basis, that they may voluntarily update their disability status.
The request to voluntarily self-identify must be made using a form issued by the DOL, which is available here.
IV. Recordkeeping Requirements
Finally, Sponsors are required to maintain records necessary for the Registration Agency to determine if the Sponsor is complying with its equal opportunity obligations under the regulations. These records must be maintained for five years, and include the following types of records:
- Apprentice selection;
- Invitations to self-identify as an individual with a disability;
- Information about the apprentice program operation;
- Requests for reasonable accommodation; and
- Affirmative action steps taken to increase opportunities for women, minorities, and individuals with disabilities.
In summary, with the final portion of the updated apprenticeship regulations going into effect on January 19, 2019, Sponsors should take this opportunity to ensure that they are in compliance.
Trustees should not construe the blog as legal advice and are urged to consult with their own fund counsel to determine whether any action is permissible or advisable.