# Apprenticeship Programs; Equal Employment Opportunity

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/fr%3A2015-27316

## Record

- **Collection:** Federal Register
- **Document type:** Proposed Rule
- **Published:** November 6, 2015
- **Citation:** 80 FR 68908

## Text

DEPARTMENT OF LABOR
29 CFR Parts 29 and 30
RIN 1205-AB59
Apprenticeship Programs; Equal Employment Opportunity

AGENCY:

Employment and Training Administration, Labor.

ACTION:

Notice of proposed rulemaking; request for comments.

SUMMARY:

The U.S. Department of Labor (DOL or Department) is issuing a Notice of Proposed Rulemaking (NPRM) to update the equal opportunity regulations that implement the National Apprenticeship Act of 1937. These 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. The proposed rule would revise regulations to reflect changes made in October 2008 to Labor Standards for Registration of Apprenticeship Programs; update equal opportunity standards 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; strengthen the affirmative action provisions for sponsors by detailing mandatory actions a sponsor must take to satisfy its affirmative action obligations, and by requiring affirmative action for individuals with disabilities; and improve the overall readability of through restructuring and clarification of the text. In addition, the proposed rule would make technical, conforming amendments to current regulations.

DATES:

Comments must be submitted by January 5, 2016.

ADDRESSES:

You may submit comments, identified by Regulatory Information Number (RIN) 1205-AB59, by any one of the following methods:

•
Federal e-Rulemaking Portal www.regulations.gov
. Follow the Web site instructions for submitting comments.

•
Mail:
Please address all written comments (including disk and CD-ROM submissions) to Adele Gagliardi,, Administrator, Office of Policy Development and Research, Employment and Training Administration, U.S. Department of Labor, 200 Constitution Avenue NW., Room N-5641, Washington, DC 20210.

•
Hand Delivery/Courier:
Adele Gagliardi, Administrator, Office of Policy Development and Research, Employment and Training Administration, U.S. Department of Labor, 200 Constitution Avenue NW., Room N-5641, Washington, DC 20210.

Please submit your comments by only one method. The Department will post all comments received on
http://www.regulations.gov
without making any change to the comments, including any personal information provided. The
http://www.regulations.gov
Web site is the Federal e-rulemaking portal and all comments posted there are available and accessible to the public. The Department cautions commenters not to include their personal information such as Social Security Numbers, personal addresses, telephone numbers, and email addresses in their comments as such submitted information will become viewable by the public via the
http://www.regulations.gov
Web site. It is the responsibility of the commenter to safeguard his or her information. Comments submitted through
http://www.regulations.gov
will not include the commenter's email address unless the commenter chooses to include that information as part of his or her comment.

Postal delivery in Washington, DC, may be delayed due to security concerns. Therefore, the Department encourages the public to submit comments via the Web site indicated above.

Docket:
For access to the docket to read background documents or comments received, go to the Federal eRulemaking portal at
http://www.regulations.gov
. The Department will also make all the comments it receives available for public inspection during normal business hours at the Office of Policy Development and Research (OPDR) at the above address. If you need assistance to review the comments, the Department will provide you with appropriate aids such as readers or print magnifiers. The Department will make copies of the rule available, upon request, in large print and as an electronic file on computer disk. The Department will consider providing the proposed rule in other formats upon request. To schedule an appointment to review the comments and/or obtain the rule in an alternate format, contact OPDR at (202) 693-3700 (VOICE) (this is not a toll-free number) or 1-800-877-8339 (TTY/ASCII).

FOR FURTHER INFORMATION CONTACT:

Adele Gagliardi, Administrator, Office of Policy Development and Research, Employment and Training Administration, U.S. Department of Labor, 200 Constitution Avenue NW., Room N-5641, Washington, DC 20210,
gagliardi.adele@dol.gov
, (202) 693-3700 (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:

This preamble is divided into three sections. Section I provides general background information on the development of the proposed revisions to 29 CFR parts 29 and 30 (part 29 and part 30, respectively). Section II is a section-by-section analysis of the proposed regulatory text. Section III covers the administrative requirements for this proposed rulemaking as mandated by statute and Executive Order.

I. Background

A. General Overview of Registered Apprenticeship

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. 29 U.S.C. 50. The responsibility for formulating and promoting these labor standards lies with the Department's 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.

Part 29 implements the National Apprenticeship Act by setting forth labor standards that safeguard the welfare of apprentices by 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. 73 FR 64402. These regulations can be accessed on OA's Web site at:
http://www.doleta.gov/oa/pdf/FinalRule29CFRPart29.pdf
.

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 based on race, color, religion, national

origin, and sex. In addition, part 30 also requires that sponsors of registered apprenticeship programs take affirmative action to provide equal opportunity in such programs. The Department first published part 30 on December 18, 1963, at the direction of President Kennedy, who ordered 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. 28 FR 13775. At that time, the regulations prohibited discrimination based on race, color, religion, and national origin. Coverage 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 (AAP) for minorities. 36 FR 6810, April 8, 1971. In 1978, the Department amended these regulations to require inclusion of female apprentices in AAPs. 43 FR 20760, May 12, 1978. There have been no changes to these regulations since that time.

Registered apprenticeship is a combination of on-the-job training and related technical instruction in which workers learn the practical and theoretical aspects of a highly-skilled occupation. Apprenticeship programs are sponsored voluntarily by individual employers, employer associations, or Joint Apprenticeship Training Committees that partner organized labor with employers. In the U.S. today, there are more than 19,000 program sponsors representing over 200,000 employers who are offering registered apprenticeship training to more than 375,000 registered apprentices.
1

1
Fiscal Year (FY) 2013 national results available at
http://doleta.gov/oa/data_statistics.cfm
.

OA oversees the National Registered Apprenticeship System. Federal staff members are directly responsible for registered apprenticeship activities in 25 States and provide technical assistance and oversight to 25 SAAs in the other 25 States. In these “SAA States,” the SAA has voluntarily requested 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 those 25 States, the SAA, in accordance with Federal regulations, has responsibility for registering apprenticeship activities for Federal purposes.

Registered apprenticeship programs appear in traditional industries, such as construction (where the majority of registered programs has been) and manufacturing, as well as in new emerging “high-growth” industries, such as health care, information technology, and energy. High-growth industries are those sectors in the economy that are projected to add substantial numbers of new jobs to the economy or affect the growth of other industries, or they are existing or emerging businesses being transformed by technology and innovation requiring new skill sets for workers.
2

2
High growth industries include: Advanced manufacturing, construction, energy, health care, homeland security, hospitality, and transportation.

B. Overview of the NPRM

In spring 2010, to inform the drafting of this NPRM, OA conducted a series of town hall meetings across the nation, a webinar, and listening sessions with the agency's stakeholders to elicit their recommendations for updating part 30. Through these efforts, 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 labor-management organizations, employers, and employer associations; journeyworkers; former apprentices; and registered apprentices. This input addressed features of part 30 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; a focus on equal training and retention of apprentices; stricter enforcement of the Equal Employment Opportunity (EEO) obligations; 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 (Secretary) on a wide range of matters related to apprenticeship. The ACA is comprised of approximately 30 members with equal representation of employers, labor organizations, and the public.

In January 2011, the ACA unanimously accepted a series of recommendations to revise part 30, prepared by its EEO regulations workgroup, and then formally provided those recommendations to the Department. In particular, the ACA recommended that the revised part 30: (1) Align with part 29; (2) link the part 30 regulatory requirements with apprenticeship programs' standard operating procedures, so that program sponsors can minimize administrative burden; (3) enhance program sponsors' accountability for compliance; (4) align requirements for outreach and recruitment activities with established national best practices; (5) allow maximum flexibility in selection procedures provided they are objective and specific; (6) provide for the use of local labor market information in establishing and updating utilization goals; and (7) require that all registered apprenticeship programs, regardless of size, adopt AAPs and selection procedures, supported by OA technical assistance.

This proposed rule is based on public input, ACA consultation, as well as OA's analysis of demographic patterns in apprenticeship discussed later in this preamble, and a literature review regarding barriers to entry, underutilization, and discrimination in apprenticeship and nontraditional occupations for women and minorities, and best practices to address these challenges. This NPRM proposes four general part 30 revisions: (1) Changes required to make part 30 consistent with the Labor Standards for Registration of Apprenticeship Programs set forth in part 29; (2) changes updating the scope of a sponsor's EEO obligations; (3) changes to enhance sponsors' affirmative action obligations and enforcement efforts by Registration Agencies; and (4) changes to improve the overall readability of part 30.

The first set of changes 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 proposes to revise or add several terms in 29 CFR 30.2, Definitions. These terms include “administrator,” “apprentice,” “apprenticeship committee,” “apprenticeship program,” “pre-apprenticeship,” “employer,” “journeyworker,” “Office of Apprenticeship,” “Registration Agency,” “sponsor,” and “State Apprenticeship Agency.”

In addition, proposed part 30 incorporates the procedures set forth in part 29 for deregistration of

apprenticeship programs, derecognition of SAAs, and hearings. The use of a single set of procedures would streamline management of the National Registered Apprenticeship System. This would, for example, avoid the confusion of requiring two simultaneous proceedings when separate part 29 and part 30 issues arise in relation to a single registered apprenticeship program.

The second category of proposed changes addresses the fact that the EEO regulations for the National Registered Apprenticeship System have not been revised since 1978. The current EEO regulations prohibit discrimination in registered apprenticeship against individuals based on race, color, religion, national origin, and sex. Since 1978, however, the legal landscape for EEO has evolved. Within the context of the existing protected category of sex, for example, Congress passed the Pregnancy Discrimination Act in 1978, which amended Title VII to include, within the context of sex discrimination, discrimination on the basis of pregnancy, childbirth, and related medical conditions. The scope and analysis of pregnancy discrimination has been refined in Title VII case law throughout the years, up to and including the Supreme Court's recent holding in
Young
v.
United Parcel Serv., Inc.,
135 S. Ct. 1338 (2015), addressing the obligations for providing workplace accommodations for pregnancy, childbirth, or related medical conditions. Further, the Equal Employment Opportunity Commission (EEOC), Department of Justice, the Department's Office of Federal Contract Compliance Programs (OFCCP), and several federal courts have held that discrimination on the basis of gender identity or transgender status falls within the ambit of sex discrimination.
3

Consistent with the Department's interpretation, this regulation interprets sex discrimination in line with these developments in the law.

3

See Macy
v.
Holder,
Appeal No. 0120120821, 2012 WL 1435995, at *7 (EEOC) (2012),
available at http://www.eeoc.gov/decisions/0120120821%20Macy%20v%20DOJ%20ATF.txt
(last accessed August 26, 2015), on remand, Department of Justice (DOJ) Final Agency Decision, Agency Complaint No. ATF-2011-00751, DJ No. 187-9-149 (July 8, 2013); Memorandum from Attorney General Eric Holder to United States Attorneys and Heads of Department Components (Dec. 15, 2014),
available at http://www.justice.gov/file/188671/download
(last accessed August 26, 2015); OFCCP Directive 2014-02 (August 19, 2014),
available at http://www.dol.gov/ofccp/regs/compliance/directives/dir2014_02.html
(last accessed August 26, 2015);
see also, e.g., 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);
Barnes
v.
City of Cincinnati,
401 F.3d 729 (6th Cir. 2005);
Schroer
v.
Billington,
424 F. Supp. 2d 203 (D.D.C. 2006).

The EEO landscape has evolved beyond those protected categories specifically enumerated in the regulations as well. In 1990, Congress enacted the Americans with Disabilities Act (ADA), 42 U.S.C. 12101
et seq.,
prohibiting employers from discriminating in employment against qualified individuals on the basis of disability. In 2008, Congress passed the ADA Amendments Act (ADAAA), making it easier for an individual to establish that he or she has a disability within the meaning of the ADA. Most sponsors are subject to the ADA, as it applies to, among others, private employers with 15 or more employees, including part-time employees, and to joint labor management committees controlling apprenticeship and training. In 1996, the Equal Employment Opportunity Commission (EEOC) amended its regulations implementing the Age Discrimination in Employment Act (ADEA), subjecting apprenticeship programs to the ADEA's requirements, thus barring apprenticeship programs from setting upper age limit requirements or otherwise discriminating against apprentices age 40 or older on the basis of age. In 2008, Congress enacted the Genetic Information Nondiscrimination Act (GINA), which applies to joint-labor management training and apprenticeship programs, among others, and prohibits them from discriminating against employees or applicants because of genetic information. GINA prohibits the use of genetic information in making employment decisions and prohibits covered entities, including joint-labor management training and apprenticeship programs from requesting, requiring, or purchasing genetic information and strictly limits the disclosure of genetic information. Accordingly, this proposal would add age, disability, and genetic information to the list of bases upon which a sponsor must not discriminate, and revises part 30 throughout consistent with this change.

Additionally, the proposed rule adds sexual orientation to the list of protected bases. Since 1978, the legal landscape regarding employment discrimination related to sexual orientation has changed. Many employment practices that were not then widely recognized as discriminatory now constitute unlawful sex discrimination under title VII. In particular, it is now widely recognized that employment decisions made on the basis of stereotypes about how males and/or females are expected to look, speak, or act are a form of sex-based employment discrimination.
See Price Waterhouse
v.
Hopkins,
490 U.S. 228, 250 (1989) (finding sex discrimination on basis of sex stereotyping). Following
Price Waterhouse,
the EEOC has concluded that discrimination against an individual because of that person's sexual orientation is a violation of Title VII.
David Baldwin
v.
Dep't of Transportation,
EEOC Appeal No. 0120133080 (July 15, 2015), at p. 14 (available at
http://www.eeoc.gov/decisions/0120133080.pdf
) (last accessed August 26, 2015). Also at the Federal level, in July 2014, President Obama issued Executive Order 13672, which amended Executive Order 11246 to add sexual orientation and gender identity to the list of bases for which discrimination by Federal contractors and subcontractors is prohibited. 79 FR 42971 (July 21, 2014). At the State and local level, the recognition of sexual orientation as a protected characteristic has expanded significantly. As of the publication of the proposed rule, 22 States and the District of Columbia, in addition to numerous additional counties and municipalities across the country, have passed statutes and ordinances explicitly prohibiting employment discrimination on the basis of sexual orientation in the public and private sectors.
4

4

https://www.aclu.org/maps/non-discrimination-laws-state-state-information-map
(last accessed Aug. 27, 2015).

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,” 29 U.S.C. 50, 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. 30 CFR 30.1 and 30.5. It is also consistent with the developing legal landscape in this area. While the proposal prohibits discrimination on the basis of sexual orientation, it does not require incorporating sexual orientation into written affirmative action plans, nor does it require sponsors to collect employee or applicant data on sexual orientation. This is consistent with the treatment of sexual orientation under OFCCP's affirmative action programs for federal contractors.

The third category of proposed changes in this NPRM seeks to improve the effectiveness of program sponsors' required affirmative action efforts and of Registration Agencies' efforts to enforce and support compliance with this rule by, among other things, detailing specific mandatory actions a sponsor must take to satisfy its affirmative action obligations, including mandating certain actions that are merely suggested in the existing regulations. This NPRM also gives Registration Agencies more tools with which to promote compliance with affirmative action objectives. In addition, this NPRM expands affirmative action requirements in part 30 by requiring affirmative action for individuals with disabilities. These proposed enhancements are necessary because, despite the progress that has been made in some segments of the workforce since the promulgation of the existing part 30, the residual impact of longstanding discrimination continues to exclude historically disadvantaged worker groups from participation in registered apprenticeship. The Department has a strong interest in ensuring that its approval of a sponsor's apprenticeship program does not serve to support, endorse, or further private discrimination.

The fourth category of proposed changes in the NPRM would improve the overall readability of part 30 through a reorganization of the part 30 requirements, basic editing, and by providing clarifying language where needed. For instance, the Department proposes to make minor language changes for the purposes of clarity and adhering to plain language guidelines. This includes replacing the word “shall” with “must” or “will” as appropriate to the context. The Federal Plain Language Guidelines specify that use of the word “shall” is not only outdated, but also imprecise, as it “could indicate either an obligation or a prediction.”
5

In the past, the word “shall” has been used throughout the part 30 regulations to denote a requirement—something the word “must” does with greater clarity. In addition, the proposed rule would add a new section setting forth the effective date for this rule and for programs currently registered to come into compliance with the revised regulations.

5
Federal Plain Language Guidelines at 25 (March 2011), available at
http://www.plainlanguage.gov/howto/guidelines/FederalPLGuidelines/FederalPLGuidelines.pdf
(last accessed Dec. 2, 2014).

Finally, the Department proposes to make a few minor, conforming changes in 29 CFR part 29, the companion rule to part 30. These changes do not alter any substantive requirements of part 29; rather, this NPRM makes minor revisions to part 29 in order to harmonize parts 29 and 30. The specific proposed revisions to parts 29 and 30 are explained in detail in Section II below.

C. Demographic Patterns of Women and Minorities in Apprenticeship

At the outset of the regulatory revision process, OA evaluated demographic changes in apprenticeship programs, apprenticeable occupations, and employment-related training programs in construction and non-construction industries. OA reviewed data in OA's Registered Apprenticeship Partners Information Data System (RAPIDS)
6

and analyzed workforce-related data from the Department of Commerce/Census Bureau's American Community Survey Data (ACS), the Current Population Survey (CPS), and the Bureau of Labor Statistics (BLS), all of which provide the Department with data on who is currently working in various labor market sectors. The representation of each demographic group employed in apprenticeable occupations provides a basis for estimating a minimum of who may be interested and/or available to enter into apprenticeships. OA recognizes that an estimate of availability for apprenticeship should more broadly include those with the potential capacity for registered apprenticeship, rather than being limited to those currently employed in the apprenticeable occupation. But even comparisons to the demographic characteristics of current employees in apprenticeable occupations and industries disclosed disparities in apprenticeship.

6
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. We note that, currently, RAPIDS does not collect data regarding individuals with disabilities. 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) and a representative cross-section of 25 states.

As described in more detail below, the Department has concluded from these data and other available analyses that women and minorities continue to face substantial barriers to entry into and, for some groups, completion of registered apprenticeships, despite their availability in industry sectors that include apprenticeable occupations. Barriers include:

• Lower than expected enrollment rates in registered apprenticeship for specific groups including, most notably, women and specific minority groups;

• To the extent that women and minorities participate in registered apprenticeships, women and almost all minority groups are concentrated in lower-paying occupations; and

• In the construction industry, barriers to apprenticeship program completion, which result in significant differences in completion rates amongst minority groups and for women in the construction industry.

Women in Apprenticeships

Women's enrollment in apprenticeship programs is significantly lower than expected. All women, regardless of race or ethnicity, are severely underrepresented in registered apprenticeship programs when compared to their share of the U.S. labor force. This disparity exists in comparison to the number of men in registered apprenticeships, and also in comparison to the number of women who are working in the wider civilian labor force. CPS data indicate that in 2014 the national labor force was 53.0 percent male and 47.0 percent female. Yet, as Table 1 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—roughly the same as a decade ago.

Table 1
7
—New Enrollments in Registered Apprenticeship by Sex, All Industries

Year
% Female
% Male

2003
6.9
93.1

2004
7.7
92.3

2005
6.7
93.3

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

10 Year Average
7.1
92.9

CPS Labor Force Participation (2012)
47.0
53.0

When

analyzed on an industry basis more pronounced disparities are disclosed. As seen in Table 2 below, of the seven high-growth industries identified by OA as particularly desirable for expansion opportunities for registered apprenticeship, all show huge disparities between male and female enrollment rates. For example, women are the vast majority of apprentices in the health care industry but are a fraction of apprentices in the construction and utilities industries.

7
Source: Query of RAPIDS database—February 2014.

Table 2
8
—New Enrollments in Registered Apprenticeship by Sex and Industry, 2013

Industry
% Female
% Male

Advanced Manufacturing
10.4
89.6

Construction
2.3
97.7

Utilities
1.8
98.2

Health Care and Social Assistance
95.5
4.5

Homeland Security Public Administration and National Security
16.1
83.9

Hospitality Educational Services
3.9
96.1

Transportation
3.7
96.3

CPS Labor Force Participation (2012)
47.0
53.0

The

underrepresentation of women in registered apprenticeship programs for high-growth industries also is demonstrated by comparing the percentage of women working in high-growth industries with their percentage in registered apprenticeships in those same industries. As seen in Table 3 below, female enrollment was significantly below women's share of the workforce in the same six high-growth industries as in Table 2. Except for health care, these comparisons indicate that the representation of women enrolled in apprenticeship programs in these industries is significantly lower than the female rate of participation in these industries in the U.S. civilian labor

force.

8
Source: Query of RAPIDS database—February 2014.

9
Source: Query of RAPIDS database—February 2014, and CPS, February 2013 (
http://www.bls.gov/cps/cpsaat16.htm
).

Table 3
9
—Comparison of Newly Enrolled Apprentices by Sex and Industry to Civilian Workforce Currently Employed in the Industry, 2013

Industry
Data
% Female
% Male

Advanced Manufacturing

Apprenticeship
Workforce

10.4
29.0

89.6
71.0

Construction

Apprenticeship
Workforce

2.3
8.9

97.7
91.1

Utilities

Apprenticeship
Workforce

1.8
23.4

98.2
76.6

Health Care and Social Assistance

Apprenticeship
Workforce

95.5
78.4

4.5
21.6

Homeland Security Public Administration and National Security

Apprenticeship
Workforce

16.1
45.4

83.9
54.6

Educational Services

Apprenticeship
Workforce

3.9
68.6

96.1
31.4

Transportation

Apprenticeship
Workforce

3.7
23.2

96.3
76.8

Apprenticeship = National Federal Workload only tracked in RAPIDS.
Workforce = Civilian Population Survey (CPS) February 2013.

Women also are concentrated in apprenticeship programs for the lowest paying apprenticeable occupations. As shown in Table 4 below, women account for less than 10 percent of the enrollments in apprenticeship programs in the highest paid apprenticeable occupations, which include many construction occupations, but comprise typically over 80 percent of the enrollments in apprenticeship programs in the lowest paying apprenticeable occupations, such as nursing assistants in the health care industry.

Table 4
10
—Representation of Women in Apprenticeship Programs In Top 25 Apprenticeable Occupations

Category
Examples
Hourly Earnings
% Women

Best Paid Occupations

Electrician,
Pipe Fitter,
Painter

$25-$35 per hour
1-8.5

Intermediate Pay Level Occupations

Correction Officer,
Cook/Chef

$15-$20 per hour
10-50

Lowest Paid Occupations

Child Care Development Specialist,
Certified Nursing Assistant

Less than $15 per hour
85-99

Disparities between male and female enrollment rates are dramatic in the construction industry, where almost 60 percent of registered apprentices were enrolled in 2013, according to RAPIDS. As seen in Table 5 below,

the representation of women in construction apprenticeship programs in 2013 (2.3 percent) was lower than the representation of women in construction industry occupations in all industries (8.9 percent according to the CPS and 9.9 percent according to the ACS).

10
Source: Query of RAPIDS database for all active apprentices—February 2014.

11
Table 5 uses multiple data sources. The RAPIDS database is the source for apprenticeship data. Other sources are the CPS and the ACS.

EP06NO15.000

This striking underrepresentation of women in construction apprenticeship programs is consistent with the historical underrepresentation of women in on-site construction occupations. Factors that affect women's representation in on-site construction occupations in the construction industry include negative stereotypes about women's ability to perform construction work and pervasive sexual harassment. These factors, together, act as a significant barrier to women entering the construction trades.
12

Women also may be the victims of discriminatory recruitment and selection procedures. The construction trades have traditionally used informal

networks and referrals and word of mouth to recruit for open apprenticeships. Similarly, personal introductions and recommendations (as well as nepotism policies in the past) continue to be significant factors in selection for construction apprenticeships and work.
13

The problem of underrepresentation then perpetuates itself; because women have historically been underrepresented in construction apprenticeships and jobs, many of them may not have the connections necessary to receive information concerning these opportunities and be selected for them.
14

15

12

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).

13

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).

14
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).

15
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).

In addition to low enrollment rates, women complete apprenticeships in the construction industry at lower rates than men. As shown in Table 6 below, the 2011 completion rate indicates that women completed apprenticeships at a rate of 33.6 percent compared to 39.2 percent for men. Of the cohort of apprentices that completed in 2013, the most recent cohort for which the Department has completion rates, women's completion rate improved to a rate of 39.3 percent compared to 42.7

percent for men.

16
RAPIDS data. 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/bu110/Bulletin_2011_07_Completion_Rates.pdf
).

EP06NO15.001

Women can succeed in construction apprenticeship programs when provided equal opportunity. For example, a study of apprentices in Washington State during the 2005-2006 program year indicated that the participation rate of women apprentices in construction trades was 36 percent, much higher than the National Registered Apprenticeship System's average of 2.3 in construction apprenticeship programs.
17

17
Washington State Workforce Training and Education Coordinating Board, “Workforce Training Results: Apprenticeship,” at 13 (Dec. 2008). A copy of the report is available at
http://www.wtb.wa.gov/Documents/WTR_Apprenticeship.pdf
.

In conclusion, the data and literature about female participation in registered apprenticeship confirms:

• Significantly lower than expected enrollment rates for women in registered apprenticeship in general, as compared to the number of women in the workforce for industries that sponsor apprenticeships;

• Lower than expected completion rates for women relative to the rates for men; and

• Concentration of women in apprenticeship programs for the lowest paying occupations.

Minorities in Apprenticeship

Progress for racial minority groups and Hispanics or Latinos has been uneven and varies by group. Analyses reveal that tailored affirmative action efforts are necessary to ensure equal opportunity for racial minority groups and Hispanics or Latinos, who continue to face barriers to full participation in registered apprenticeship.

At the most macro level, a review of the nationwide enrollment data by industry reveals significant underutilization for some minority groups in some industries. For instance, in 2014, in manufacturing, Hispanics or Latinos comprised 15.8 percent of the civilian labor force, yet only represented 6.3 percent of the apprentice workforce.
18

Similarly, in the transportation industry, Hispanics or Latinos were 17.2 percent of the civilian labor force, but only 9.1 percent of the apprentice workforce. In utilities, Blacks or African Americans represented 8.9 percent of the civilian labor force, but only 5.9 percent of the apprentice workforce. In public administration and homeland security, Asians comprised 4.8 percent of the civilian labor force, but only 1.0 percent of the apprentice workforce.

18
Source: Labor Force Statistics from the Current Population Survey, BLS (
http://www.bls.gov/cps/cpsaat18.htm
)

More detailed analyses at the occupation level reveal further disparities. For instance, Hispanics or

Latinos comprise 35.7 percent of active apprentices as painters yet represent 42.6 percent of painters in the civilian labor force.
19

Likewise, Hispanics or Latinos represent 11.1 percent of active apprentices as operating engineers, yet represent 16.5 percent of operating engineers in the civilian labor force. These disparities exist at the occupation level for Blacks or African Americans as well. For example, Blacks or African Americans represent 2.3 percent of active apprentices as building inspectors, yet represent 6.2 percent of building inspectors in the civilian labor force.
20

Likewise, Blacks or African Americans represent 2.4 percent of active apprentices as emergency medical technicians, yet represent 5.5 percent of these workers in the civilian labor force. The underrepresentation of Black or African American males in registered apprenticeship at the occupational level may be reflective of problems in the industry at large. Blacks or African Americans are underrepresented in many of the largest and highest paying apprenticeable occupations when compared to their utilization in similar occupations in other industries. In an analysis of 2005-2007 ACS data that drills down to the occupational level in the construction, extraction, and maintenance sector, researchers found that Black or African American men experience underrepresentation in 81 percent of the 67 precisely defined occupations that comprise this sector.
21

19
Source: Query of RAPIDS database—February 2014 and Labor Force Statistics from the Current Population Survey, BLS (
http://www.bls.gov/cps/cpsaat11.htm
).

20
Source: Query of RAPIDS database—February 2014 and Labor Force Statistics from the Current Population Survey, BLS (
http://www.bls.gov/cps/cpsaat11.htm
).

21
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).

In addition, minority groups tend to be concentrated in lower paying occupations. RAPIDS data for major occupations (those with the greatest numbers of total apprentices) for which earnings data are readily available show that both Hispanics or Latinos and Blacks or African Americans, for example, account for a smaller percentage of apprentices enrolled in apprenticeship programs in the highest paid apprenticeable occupations, and have a relatively greater representation in the lower paying apprenticeable occupations. Specifically, Blacks or African Americans make up less than 8 percent of the apprentice workforce for the highest paying apprenticeable occupations, such as electricians and plumbers, which earn on average $23.80/hour, but comprise 14.0 percent and 21.7 percent of lower paying occupations, such as construction laborers and correctional officers, which earn on average $12.31/hour and $18.77/hour, respectively. Likewise, Hispanics or Latinos make up less than 23 percent of higher paying apprenticeable occupations, such as elevator installers and repairers, which earn on average $36.85/hour, but comprise 35.7 percent and 45.1 percent of lower paying apprenticeable occupations, such as roofers and painters, which earn on average $16.95/hour.
22

22
Mean hourly earnings from the 2012 National Occupational Employment and Wage Estimates, BLS (
http://www.bls.gov/oes/current/oes_nat.htm
).

Furthermore, RAPIDS data reveal that there are challenges for minority groups in completion rates as well. For example, the 2013 completion rate for Blacks or African Americans in the construction industry, was 30.3 percent. This rate was significantly lower compared to Whites, who completed their apprenticeship programs at a rate of 46.7 percent. In conclusion, the data about minority participation in apprenticeship indicates the following:

• Progress has been made over the last 30 years for minority participation in registered apprenticeship, but it has been uneven across minority groups;

• Disparities continue to exist for some groups depending on industry, occupation, and geographic area;

• Minority groups are concentrated in apprenticeship programs in the lower paying occupations; and

• Completing apprenticeship programs has been a challenge for some minority groups.

These findings indicate that affirmative action, while necessary to ensure that minorities have an equal opportunity to apprentice, must be tailored to address the specific disparities by minority group, and by occupation, industry, and geographic area.

People With Disabilities in Apprenticeship

The Department believes strongly that including people with disabilities in apprenticeship affirmative action efforts is crucial to affording them equal opportunity in registered apprenticeship. Individuals with disabilities experience high levels of unemployment. According to the Survey of Income and Program Participation (SIPP) by the U.S. Census Bureau that collected data from May through August 2010, individuals with disabilities comprise approximately 16.6 percent (one sixth) of the working age population.
23

Yet, the unemployment rate of working age individuals with disabilities and the percentage of working age individuals with disabilities who are not in the labor force remain significantly higher than for those without disabilities.
24

According to 2012 data from BLS, 17.8 percent of working age people with disabilities were in the labor force in March 2011, compared with 63.9 percent of working age people with no disability.
25

The unemployment rate for working age people with disabilities was 13.4 percent, compared with a 7.9 percent unemployment rate for working age individuals without a disability. Ensuring individuals with disabilities have fair access to the employment training opportunities offered by registered apprenticeship programs through inclusion in affirmative action efforts can be important in opening doors to good jobs for people with disabilities.

23
Matthew W. Brault, “Americans With Disabilities: 2010,” U.S. Census Bureau (2012),
http://www.census.gov/prod/2012pubs/p70-131.pdf.

24
The working age population consists of people between the ages of 16 and 64, excluding those in the military and people who are in institutions.

25
Source: Persons with a disability: Labor force characteristics (June 2013), BLS (
http://www.bls.gov/news.release/disabl.nr0.htm
).

The detailed Section-by-Section Analysis below identifies and discusses all proposed changes in each section. The Department welcomes comments on all of the provisions discussed below.

II. Section-by-Section Analysis

Title of the Rule

The current title of the rule is Equal Employment Opportunity in Apprenticeship and Training. The Department proposes to delete the phrase “and Training” to clarify that the rule applies specifically to apprenticeship programs registered under the National Apprenticeship Act, and not to other training programs for which the Department has responsibility. This updated title is consistent with recent revisions to the name of the Department's agency with responsibility for registration of apprenticeship programs, and implementation of the National Apprenticeship Act. Currently, this agency is ETA's OA. In 1963, when the part 30 regulation was first promulgated, and then in 1978, when it was last amended, the Department's apprenticeship agency was entitled the

Bureau of Apprenticeship and Training. In recent years, the agency's name was formally changed to the Office of Apprenticeship (OA).

Purpose, Applicability, and Relationship to Other Laws (§ 30.1)

In general, § 30.1 of the current part 30 condenses scope and purpose in one paragraph and outlines the general topics covered by part 30 in the same paragraph. The Department proposes several minor revisions to enhance the readability of this section.

First, the title of proposed § 30.1 would be revised to read “Purpose, applicability, and relationship to other laws” to better inform the public about what this section addresses. Second, proposed § 30.1 is divided into three paragraphs: § 30.1(a) would set forth the purpose of the rule; § 30.1(b) would address to whom the rule applies; and § 30.1(c) would discuss how this regulation relates to other laws that may apply to the entities covered by this regulation. In addition, proposed § 30.1 would delete the text indicating that part 30 addresses the registration of apprenticeship programs, because the registration of apprenticeship programs is covered only by part 29. Proposed § 30.1 also would add in § 30.1(a) that the required contents of a sponsor's affirmative action program are covered under part 30.

Proposed § 30.1(a) would add age (40 or older), genetic information, sexual orientation, and disability to the list of bases set forth in the rule upon which sponsors of registered apprenticeship programs must not discriminate. As discussed above, since 1978, when this rule was last amended, EEO law has evolved with the application of the ADEA and GINA to apprenticeship programs, the passage of the ADA, the issuance of Executive Order 13672, and the legal developments with respect to discrimination related to sexual orientation. By adding age (40 or older), genetic information, sexual orientation, and disability to the list of protected bases, the Department is better able to fulfill its charge to protect the welfare of apprentices and ensure admission to apprenticeship is on a “completely non-discriminatory basis,” as directed by President Kennedy. Moreover, the addition of these bases to the list of those upon which a sponsor must not discriminate ensures that the National Registered Apprenticeship System's regulatory framework affords the same protections to these individuals as it does for others, and it will bring the National Registered Apprenticeship System into alignment with the protected bases identified in the various Federal, State, and local laws already applicable to many apprenticeship sponsors.

For greater clarity and to establish parity with parallel provisions in the ADA, proposed § 30.1(c) also would include a paragraph explaining that part 30 does 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 based on race, color, religion, national origin, sex, sexual orientation, age (40 or older), genetic information, or disability. Proposed § 30.1(c) additionally recognizes as a defense to a charge of 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.

The Department recognizes that program sponsors and Registration Agencies may need technical assistance with implementing these proposed regulations with respect to individuals with disabilities. Therefore, ETA will partner closely with the Department's Office of Disability Employment Policy (ODEP) to provide significant technical assistance tools and sub-regulatory policy and program guidance to assist program sponsors with improving their EEO practices with respect to individuals with disabilities and Registration Agencies with enforcing the EEO requirements set forth in this proposed rule. There are many resources immediately available to assist apprenticeship program sponsors in meeting their proposed EEO obligations for individuals with disabilities. For instance, the Job Accommodation Network, a free service provided by ODEP, provides one-on-one guidance to employers with expert and confidential guidance on workplace accommodations and disability employment issues.

Definitions (§ 30.2)

Proposed § 30.2 would revise and re-designate existing definitions and would add certain terms used in part 29 that apply also to part 30. The terms added from part 29 are: “administrator,” “apprentice,” “apprenticeship committee,” “apprenticeship program,” “electronic media,” “employer,” “journeyworker,” “Office of Apprenticeship,” “Registration Agency,” “sponsor,” and “State Apprenticeship Agency.” The proposed definitions for these terms are identical to those set forth in part 29.

In addition, because the Department proposes to include disability among the list of protected bases covered by part 30, proposed § 30.2 would add several new terms relevant to defining disability and disability discrimination standards. These are: “direct threat,” “disability,” “major life activities,” “physical or mental impairment,” “qualified applicant or apprentice,” “reasonable accommodation,” and “undue hardship.” The proposed definitions for these terms are taken directly from title I of the ADA, as amended by the ADAAA (effective January 1, 2009), and from the EEOC regulations implementing the ADA at 29 CFR part 1630, to the extent the ADAAA did not provide the definition. The Department intends that these proposed terms will have the same meaning as what was set forth in the ADAAA and implemented by the EEOC in 29 CFR part 1630. 76 FR 16978.

Likewise, because the Department proposes to add genetic information to the list of protected bases, proposed § 30.2 would include a definition of the term “genetic information”. This proposed definition is taken directly from GINA and from the EEOC's implementing regulations at 29 CFR part 1635. The Department intends that this term will have the same meaning as what is set forth in GINA and implemented by the EEOC in 29 CFR part 1635.

Proposed § 30.2 also would add definitions for several new terms: “pre-apprenticeship program,” “ethnicity,” “race,” and “selection procedure.” The current part 30 regulations refer to “programs of pre-apprenticeship” in the requirements for AAPs in § 30.4. However, there is no standard definition or even application of the term “pre-apprenticeship.” Over the past several decades, pre-apprenticeship programs have been structured in numerous ways, depending on the partnerships, funding availability, and geographic area. The Aspen Institute recently completed a survey of pre-apprenticeship programs in the construction industry
26

and found a wide range of models, including those focused on placing participants into registered apprenticeship programs, while others are basically job preparation/readiness or career exploration programs oriented toward placing participants into a wide range of positive outcomes (job placement, placement into higher education) not formally linked to a registered apprenticeship program. On November 30, 2012, the Department circulated a

Training and Employment Notice (TEN 13-12), Defining a Quality Pre-Apprenticeship Program and Related Tools and Resources, to inform the public workforce system about the pre-apprenticeship program definition and quality framework, as well as to promote tools and materials to improve the consistency and quality of pre-apprenticeship programs. The pre-apprenticeship definition and quality framework incorporated the following elements: Approved training and curriculum; strategies for long-term success; access to appropriate support services; promoting greater use of registered apprenticeship to increase future opportunities; meaningful hands-on training that does not displace paid employees; and facilitated entry and/or articulation.

26
Available on-line at
http://www.aspenwsi.org/WSIwork-sector.asp
.

The definition for “pre-apprenticeship” in the proposed rule would provide greater clarity and uniformity by establishing required components and suggested elements for pre-apprenticeship programs consistent with the TEN 13-12. The required components would be: Provision of structured workplace education and training; collaboration among apprenticeship program sponsors, community-based organizations, and educational institutions; and formal instruction that introduces participants to competencies, skills, and materials used in one or more apprenticeable occupations. This proposed definition also would include an optional provision for the offering of supportive services such as transportation, child care, and income support to assist participants to successfully complete the program.

Regarding the terms “ethnicity” and “race,” for purposes of recordkeeping and affirmative action, the terms “ethnicity” and “race” would have the same meaning as under the Office of Management and Budget's standards for the classification of Federal data on race and ethnicity found at
http://www.whitehouse.gov/omb/fedreg_1997standards/
, or any successor standards. “Ethnicity” would refer to the following designations: Hispanic or Latino; and Not Hispanic or Latino. The term “race” would refer to the following designations: White; Black or African American; Native Hawaiian or Other Pacific Islander; Asian; and American Indian or Alaska Native.

Regarding the term “selection procedure,” for consistency, the Department proposes to use the parallel definition found in the Uniform Guidelines on Employee Selection Procedures (UGESP) at 41 CFR part 60-3, because program sponsors are already required to comply with those regulations under the current part 30 and should be familiar with that definition.

Proposed § 30.2 would remove several terms that are no longer encompassed within the part 30 regulation itself. These are: “Secretary,” “state apprenticeship council,” “state apprenticeship program,” and “state program sponsor.”

Equal Opportunity Standards Applicable to All Sponsors (§ 30.3)

Section 30.3 of the current part 30 is divided into five paragraphs and sets forth the required equal opportunity standards for registered apprenticeship programs. As currently structured, § 30.3 requires that a sponsor: Not discriminate on the basis of race, color, religion, national origin, and sex (§ 30.3(a)(1) and (2)); engage in affirmative action (§ 30.3(a)(3)); incorporate an equal opportunity pledge into its apprenticeship program standards (§ 30.3(b)); and, for programs with five or more apprentices, adopt an affirmative action program, as required by § 30.4, and a selection procedure, as required by § 30.5 (§ 30.3(c)).

Current § 30.3 also provides an exemption from the affirmative action program and selection procedure requirements for those programs already subject to an approved EEO program (§ 30.3(e)) and for those programs with fewer than five apprentices (§ 30.3(f)). In addition, § 30.3 discusses the impact of part 30 on programs “presently registered” as of the effective date of the regulations, and sets forth the registration requirements relating to sponsors seeking a new program registration (§ 30.3(c)). The Department finds the current regulatory structure confusing and in need of reorganization. The proposed rule seeks to reorganize § 30.3 for clarity purposes.

Proposed § 30.3 would remove paragraphs (c) through (f) and would incorporate them elsewhere in the rule, because these paragraphs do not pertain to the equal opportunity standards set forth in § 30.3. Instead, they pertain to: The effective date of the part 30 regulations for programs presently registered (current § 30.3(c)); the registration requirements for sponsors seeking registration of new programs (current § 30.3(d)); and the bases for exemption from the requirement to develop an affirmative action program (current § 30.3(e) and (f)). The reason behind removing these paragraphs and placing them elsewhere in the rule will be discussed in detail later in the preamble.

Proposed § 30.3 is divided into three paragraphs, each paragraph addressing an equal opportunity standard required of sponsors. Proposed § 30.3(a) would set forth the general prohibition against discrimination on the basis of race, color, religion, national origin, and sex—the bases listed in the current part 30—and would add a prohibition against discrimination on the basis of age (40 or older), genetic information, sexual orientation, and disability. The addition of these bases to the types of discrimination already prohibited by part 30 would align the Department's EEO regulations for registered apprenticeship with the Federal, State, and local anti-discrimination laws already applicable to many apprenticeship program sponsors, as discussed previously. These laws apply to many employers, including labor organizations and joint labor-management committees operating registered apprenticeship programs or other training or retraining programs, including an on-the-job training program, provided that the employer (and in this case the sponsor) employs the requisite threshold of individuals for coverage. Further, many employer's internal EEO policies already prohibit discrimination on these grounds, legal requirements notwithstanding.

Proposed § 30.3(a) also would incorporate the concepts set forth in the current regulation (§ 30.3(a)(1) and (2)) in a framework similar to that used in other equal opportunity laws. Section 30.3(a)(1) and (2) of the current part 30 address the sponsor's duty to not discriminate; therefore, these paragraphs would be consolidated. The Department proposes this change to clarify that the discrimination standards and defenses applied under part 30 are the same as those applied under the other major EEO laws that apply to sponsors in determining whether a sponsor has engaged in an unlawful employment practice, including title VII of the Civil Rights Act of 1964 (title VII), the ADEA, GINA, and the ADA. In enforcing the nondiscrimination obligations of sponsors set forth in this part, OA follows Title VII legal principles and case law, and will do the same with regard to ADEA, GINA, and the ADA.

Proposed § 30.3(b) requires that all sponsors, regardless of size, take affirmative steps to provide equal opportunity in apprenticeship. Under § 30.3(a)(3) of the current part 30, all sponsors are required to engage in affirmative action to provide equal opportunity, and those with five or more apprentices also are required to adopt an AAP. The current part 30 also

articulates affirmative action obligations for those developing AAPs; however, the regulation is silent as to what is required of sponsors in order to fulfill these general obligations.

Proposed § 30.3(b) fills this gap by identifying the minimum affirmative steps that all sponsors, regardless of size, must take in order to ensure equal opportunity in apprenticeship programs. By clearly specifying the requirements, this revised regulatory structure is intended to ensure that
all
sponsors take the necessary steps to ensure that they fulfill their EEO obligations under part 30, and become more aware of the effect their employment practices have on EEO. This revised framework furthers the Department's strategic vision of promoting and protecting opportunity for all workers and employers by ensuring that apprenticeship program sponsors develop and fully implement a program that seeks to break down the barriers to fair workplaces.

Proposed § 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, including the development of the sponsor's affirmative action program, as required by § 30.4. This designation is expected to facilitate a sponsor's compliance with part 30 by creating a self-monitoring mechanism within each registered apprenticeship program, therefore institutionalizing each sponsor's commitment to equal opportunity. The Department anticipates that this requirement would be fulfilled by individuals who are currently providing coordination and administrative oversight functions for the program sponsor. For example, in the Department's experience, many program sponsors identify a specific individual to serve as an apprenticeship coordinator, who oversees and manages the apprenticeship program, including the EEO components.

Proposed § 30.3(b)(2) requires 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 requirement would be similar to that set forth in § 30.4(c)(4) of the current part 30, which addresses internal communication of the sponsor's equal opportunity policy. However, proposed § 30.3(b)(2) would be required of
all
sponsors, regardless of size, and would make this communication mandatory; under the current part 30, internal communication of the sponsor's equal opportunity policy is merely a suggested activity for meeting the sponsor's outreach and recruitment obligations.

Furthermore, proposed § 30.3(b)(2) also identifies the specific minimum activities that a sponsor is required to undertake to satisfy the obligation to disseminate internally the sponsor's equal opportunity policy. Compliance with this requirement should not be particularly onerous or burdensome, given that the increasingly standard use of technology—particularly regarding the use of electronic media for communications and records maintenance—would readily enable a program sponsor to comply with these requirements. Proposed § 30.3(b)(2) requires a sponsor to: (i) Publish its equal opportunity pledge in apprenticeship standards and in appropriate publications; (ii) post the pledge on bulletin boards, including through electronic media, accessible to apprentices and applicants for apprenticeship; (iii) conduct orientation and periodic information sessions for apprentices and all of a program sponsor'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) maintain records necessary to demonstrate compliance with this requirement.

Proposed § 30.3(b)(2)(i) carries forward the existing requirement in current § 30.3(b) for program sponsors to include the equal opportunity pledge in their apprenticeship standards, and slightly expands the provision by requiring sponsors to also post the pledge in other appropriate publications such as apprentice and employee handbooks, policy manuals, newsletters, and Web sites. Proposed § 30.3(b)(3)(iii) also requires program sponsors to include the equal opportunity pledge in the notification of apprenticeship openings to be provided to recruitment sources.

Proposed § 30.3(c) updates the specific language of the equal opportunity pledge, as discussed below. Therefore, sponsors will need to make a one-time revision of the apprenticeship standards to incorporate the revised equal opportunity pledge. With regard to posting the pledge in other appropriate publications and including the pledge in the notification of apprenticeship openings to recruitment sources, the Department expects that program sponsors would insert the revised equal opportunity pledge, if it is not already included in such publications, or would update the existing pledge that may already be included as they routinely update these materials. Cost and burden associated with the updating and/or inserting the equal opportunity pledge would be incorporated in program sponsors' existing efforts to maintain these publications and notifications, and therefore will not require frequent updates or changes. Many apprenticeship program sponsors' Web sites, apprenticeship handbooks, and existing publications already include the equal opportunity pledge. Therefore, the Department anticipates very little additional burden would result from compliance with proposed § 30.3(b)(2)(i) and (ii).

The orientation and information sessions required by proposed § 30.3(b)(2)(iii) underscore the sponsor's commitment to equal opportunity and its affirmation action obligations. These sessions would 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.

Given that sponsors operate apprenticeship programs in numerous industries and occupations, involving a wide range of working conditions and environments, the Department recognizes that it is unrealistic to prescribe in the proposed rule the exact nature and frequency of these sessions. This specificity would be contrary to the industry-driven nature of registered apprenticeship. Accordingly, the recordkeeping requirement in proposed § 30.3(b)(2)(iv) would allow the program sponsor and the Registration Agency a more industry-driven, effective review, to ensure that a sponsor is in compliance with its general obligation to engage in affirmative steps to ensure equal opportunity in registered apprenticeship.

Proposed § 30.3(b)(3) requires a sponsor, regardless of size, to ensure that its outreach and recruitment efforts for apprentices extend to all persons available and qualified for apprenticeship within the sponsor's recruitment area regardless of race, sex, ethnicity, or disability status. This universal recruitment and outreach requirement would foster awareness of opportunities for apprenticeship among all individuals regardless of their race,

sex, ethnicity, and disability status. This requirement, which is consistent with the corresponding requirement in current part 30, is intended to meet the Department's vision of promoting and protecting opportunity for all workers and employers. 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 and would be required to notify these sources in advance of any apprenticeship opportunities. The proposal does not specify how far in advance this notification must be, understanding that unique circumstances may affect the amount of advance notice that can be given, but states 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 sponsor's notification to these recruitment sources could be conducted through a number of mechanisms, including but not limited to in-person meetings, distribution of form letters sent via email and/or postal mail, social media networks, and other options that may develop as the use of technology for information distribution continues to evolve. These specific requirements are meant to institutionalize a sponsor's commitment to affirmative action and to ensure that the sponsor is fulfilling its general obligation to engage in affirmative action.

Proposed § 30.3(b)(4) would introduce a section entitled, “Maintain workplace free from harassment, intimidation, and retaliation,” which requires 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. In support of this requirement and to ensure an environment in which all apprentices feel safe, welcomed, and treated fairly, 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 rest rooms 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 or older), and disability. Because harassment is a form of employment discrimination that violates Federal laws applicable to most sponsors, including title VII, the ADEA, GINA, ADA, and Executive Order 11246 (as amended by Executive Order 13672), the steps outlined above will not impose any new burdens on sponsors who already must take the necessary action to prevent and eliminate harassment in the workplace.

The intent of proposed § 30.3(b)(4) would be to reduce workplace harassment and retaliation. The Department expects that sponsors' compliance with the obligations of proposed § 30.3(b)(4) ultimately will lead to an improvement in the retention rates of apprentices that are currently under-represented in apprenticeship programs so that they not only begin but also complete apprenticeships, and continue on as skilled journeyworkers in their respective occupations.

Proposed § 30.3(b)(5) requires 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. A sponsor who fails to comply ultimately would be subject to enforcement actions, including possible deregistration. In essence, proposed paragraph (b)(5) merely carries forward the current § 30.10.

The Department does not expect that the steps outlined in proposed § 30.3(b) will increase a sponsor's compliance burden. Rather, these proposed steps are representative of the kinds of good faith efforts the Department has required to date for a sponsor to meet its EEO and affirmative action obligations under the current part 30.

Finally, proposed § 30.3(c) would carry forward the requirement set forth in the current § 30.3(b) for an equal opportunity pledge, but would make three important changes to this pledge. First, consistent with the expanded scope of the proposed regulation, proposed § 30.3(c) revises the pledge by adding age (40 or older), genetic information, sexual orientation, and disability to the list of bases upon which a sponsor must not discriminate. Second, it adds a parenthetical after sex discrimination specifying that pregnancy and gender identity discrimination are included within sex discrimination. Third, the proposed paragraph clarifies that a sponsor may include additional protected bases in the pledge, but must not exclude any of the bases protected under part 30.

Affirmative Action Programs (§ 30.4)

Current § 30.4 of part 30 sets forth the regulatory requirements with respect to affirmative action programs, addressing: The adoption of an affirmative action program in § 30.4(a); the definition of affirmative action in § 30.4(b); the requirements for broad outreach and recruitment in § 30.4(c); the mandate that a sponsor include goals and timetables where underutilization occurs in § 30.4(d); the factors for determining whether goals and timetables are needed in § 30.4(e); the establishment and attainment of goals and timetables in § 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 § 30.4(g). Exemptions from the requirement to adopt an affirmative action program are found in the current part 30 at § 30.3(e) and (f).

The proposed rule substantially restructures § 30.4 to streamline, clarify, update, and strengthen the affirmative action requirements.

Proposed § 30.4(a) would set forth the definition of and purpose for an affirmative action program, so that sponsors understand at the outset what the Department means by the term “affirmative action program.” This proposed definition is consistent with how the Department has defined the term in its regulations implementing the affirmative action requirements of Executive Order 11246 at 41 CFR part 60-2 applicable to supply and service Federal contractors and subcontractors. Current § 30.4(b) defines an affirmative action program as “not mere passive non-discrimination” and states that “[i]t is action which will equalize opportunity in apprenticeship so as to allow full utilization of the work potential of minorities and women.” Proposed § 30.4(a) elaborates on that definition and states 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. Proposed paragraph (a) explains that, in addition to identifying and correcting underutilization, affirmative action programs also are intended to institutionalize the sponsor's commitment to equality 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.

Proposed § 30.4(a) also makes clear that the commitments contained in an affirmative action program are not intended and must not be used to discriminate against any applicant or apprentice on the basis of race, color, religion, national origin, sex, sexual orientation, age (40 or older), genetic information, or disability. This proposed definition is more expansive than the one in § 30.4(b) of the current part 30, and is intended to explain in more detail what constitutes an affirmative action program.

While the development and maintenance of an affirmative action program under these regulations is an integral tool in the pursuit of equal employment opportunity for all, it need not be an unduly burdensome undertaking. Thousands of employers, including large employers, have established apprenticeship programs with affirmative action plans under the existing regulations, and many have maintained and grown the number of apprenticeships, the diversity of their workforce, and the skill of their individual workers as a result. While these proposed regulations add some new obligations to the affirmative action program, they greatly 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 into the future.

Having established the definition and purpose of an affirmative action program, proposed § 30.4(b) sets forth who must adopt an affirmative action program. This proposed paragraph would require that unless otherwise exempted by proposed § 30.4(d), each sponsor must develop and maintain an affirmative action program, and set forth its program in a written plan. This language differs from current § 30.4(a), which does not indicate that some sponsors may be exempted from this requirement. The timeframe for preparing and submitting the written plan is set forth in proposed § 30.20. The details of the timing are discussed in greater detail in the discussion of that section, but in general, sponsors will have at least one year for the preparation and approval of the first plan under these proposed regulations, allowing ample time for sponsors to understand and implement their obligations. Further, during this period, the Registration Agency will provide technical assistance to sponsors seeking advice or clarification on the creation, drafting, and submission of its written plan.

The submission of the written plan to the Registration Agency is not an annual obligation; rather, the regulations specify that sponsors need only submit their current written plan to OA upon request. Thus, while sponsors will generally need to maintain and update their written AAPs annually for internal purposes (or potentially every two years, if the conditions in § 30.4(e), discussed below, are met), reviews will be less frequent. Further, the written AAP need not be a lengthy document. Sample written AAPs under the current regulations are available for review on OA's Web site as a model for sponsors to use in creating their own written plans, and many of the elements in this model can be readily adopted by new sponsors.
27

While these proposed regulations add a disability component to the AAP, this will not significantly expand the length of the written AAP.

27

See http://www.doleta.gov/oa/bul10/Bulletin%202010-11a_AppendixC_inj.pdf (last accessed Sept. 10, 2015).

The Department proposes to replace the current § 30.4(c) requirements related to outreach and positive recruitment with proposed § 30.8, discussed later in the preamble, which addresses the regulatory requirements related to targeted outreach, recruitment, and retention.

Proposed § 30.4(c) instead would provide an outline of the required elements of an affirmative action program in order to provide a roadmap to sponsors at the outset of what is required. Proposed § 30.4(c) would mandate that an affirmative action program include five elements: (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.

Proposed § 30.4(c) also would identify the sections within the larger proposed rule that would address each of these elements. This type of roadmap is lacking in the current part 30. We believe this outline of required elements will help to facilitate a sponsor's compliance with the requirements of proposed § 30.4 by serving as a checklist in determining whether the sponsor has met all of the affirmative action program requirements.

Proposed § 30.4(d) sets forth, in one location, the two existing exemptions to the requirement that a sponsor develop an affirmative action program. These exemptions can be found in the current rule at § 30.3(e) (programs subject to an approved equal employment opportunity program) and § 30.3(f) (programs with fewer than five apprentices). Both exemptions are carried forward into the proposed rule at § 30.4(d) with one minor revision. Paragraph (e) currently exempts sponsors from the AAP requirement if they have an approved equal employment opportunity program providing for affirmative action under either title VII of the Civil Rights Act or Executive Order 11246. In light of the proposal to add disability to the list of protected bases for nondiscrimination and to the affirmative action requirements, such an exemption without change would fail to recognize that qualified individuals with disabilities are now protected from discrimination under part 30 and will benefit from affirmative action under the proposed rule. Therefore, the Department proposes to revise this exemption by requiring that a sponsor have an approved equal employment opportunity program under title VII of the Civil Rights Act and agree to extend such program to include individuals with disabilities, or have approved affirmative action programs under both Executive Order 11246 and section 503 of the Rehabilitation Act, which are administered by OFCCP and apply to Federal contractors and subcontractors with qualifying contracts. This would ensure that all protected bases set forth in the proposal would be addressed and that the sponsor is taking the appropriate actions to ensure that protected individuals are employed as apprentices and advanced in employment. This particular exemption can now be found in the proposed rule at paragraph (d)(2) of proposed § 30.4, which addresses the requirement to conduct affirmative action programs. This re-designation from § 30.3, which discusses equal opportunity standards, to § 30.4, which addresses affirmative

action program requirements, would improve notice to sponsors that some sponsors are not subject to the affirmative action program requirements. Some apprenticeship programs are also qualifying Federal contractors that have developed AAPs under OFCCP's laws, and thus would not incur any additional burden to create and maintain AAPs under these regulations.

The proposed rule deletes the text in current § 30.4(c) which provides: “The Department may provide such financial or other assistance as it deems necessary to implement the requirements of this paragraph,” because the Department does not need a regulatory requirement in order to provide such assistance. Proposed § 30.5, outlined below, replaces the current § 30.4(e). The proposed rule also deletes current § 30.4(f) and addresses the establishment of utilization goals for race, sex, and ethnicity in proposed § 30.6 and for individuals with disabilities in proposed § 30.7.

Finally, the proposed regulation adds a new § 30.4(e) addressing the schedule for the review of affirmative action programs. Under the current regulations, a sponsor is required to complete an internal review of its affirmative action plan, which includes all the elements listed in the proposed § 30.4(c) set out above, on an annual basis. This NPRM incorporates that existing practice, but proposes an alternative schedule of review for those sponsors that can demonstrate their program is fully meeting the objectives set forth in this paragraph. Specifically, if a contractor's AAP demonstrates that it is 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, then the sponsor may wait two years to complete its next internal AAP review and update its written plan. This proposal is intended to provide an incentive to sponsors who have shown success in meeting their AAP and nondiscrimination obligations. We seek 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.

Utilization Analysis for Race, Sex, and Ethnicity (§ 30.5)

The Department proposes revising the current § 30.5, entitled “Selection of apprentices,” and moving the revised language to § 30.10; the revised language is discussed later in the preamble at § 30.10. In its place, the Department proposes a new § 30.5, which provides 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. Availability is the yardstick against which the actual utilization of individuals by race, sex, and ethnicity in the sponsor's apprenticeship program workforce is measured. Where 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 Department anticipates that grouping these provisions into one specific section that is clearly titled, “Utilization Analysis for Race, Sex, and Ethnicity,” rather than subsuming them in the current part 30 section on affirmative action, also would improve the regulation's overall organization and readability.

Proposed § 30.5 replaces current § 30.4(e), “Analysis to determine if deficiencies exist,” which requires the sponsor to compute availability separately for minorities and for women, for each particular occupation. The current part 30 requires the sponsor to consider at least the following five factors in determining availability: (1) The size of the working age minority and female population in the program sponsor's labor market area; (2) the size of the minority and female labor force in the program sponsor's labor market area; (3) the percentage of minority and female participation as apprentices in the particular craft, as compared with the percentage of minorities and women in the labor force in the program sponsor's labor market area; (4) the percentage of minority and female participation as journeyworkers employed by the employer or employers participating in the program, as compared with the percentage of minorities and women in the sponsor's labor market area, and the extent to which the sponsor should be expected to correct any deficiencies through the achievement of goals and timetables for the selection of apprentices; and (5) the general availability of minorities and women with present or potential capacity for apprenticeship in the program sponsor's labor market area.

Under the current part 30, although the sponsor must consider all five factors, it is not required to use each factor in determining the final availability estimate, and may consider other factors not listed in the regulation. Only the factors that are relevant to the actual availability of apprentices for the particular craft in question must be used under the current part 30. As a result, most sponsors actually use only a few of the five factors to compute the final availability estimates. Moreover, how these factors in the current part 30 relate to the availability of qualified individuals for apprenticeship is unclear. Finally, the current part 30 does not indicate how a sponsor should consider or weight each of these factors when determining availability.

Proposed § 30.5 describes the steps required to perform utilization analyses, and would simplify the availability computations by reducing the number of factors from five to two. In addition, proposed § 30.5 would require 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.

As a first step in determining whether a particular group is being underutilized, proposed § 30.5(b) would require sponsors to identify the racial, sex, and ethnic composition of its apprentice workforce. Rather than review the composition for each occupational title represented in a sponsor's apprenticeship program, the proposed § 30.5(b) would simplify the analysis by requiring the sponsor to group the occupational titles represented in its registered apprenticeship program by industry. If a sponsor has programs in various occupations (
e.g.,
carpenter, electrician, glazier, maintenance technician), but these programs are all in one industry (
e.g.,
construction), then the sponsor conducts the utilization analysis based on that one industry. Grouping by industry permits aggregation of apprenticeable occupations that are sufficiently similar to permit meaningful analysis while being sufficiently refined to identify potential barriers. In addition, these industry groupings would minimize the administrative burden for sponsors performing the analyses, particularly for those sponsors who have apprenticeship

programs in which more than one occupational title is represented.

The next step in a sponsor's utilization analysis would be to determine the availability of qualified individuals for apprenticeship by race, sex, and ethnicity. Under proposed § 30.5(c), the following two factors would be considered in determining the availability of qualified individuals for apprenticeship:

(1) The percentage of individuals available in the sponsor's relevant recruitment area with the present or potential capacity for apprenticeship in each industry, broken down by race, sex, and ethnicity; and

(2) The percentage of the sponsor's current employees with the present or potential capacity for apprenticeship broken down by race, sex, and ethnicity.

That is, the sponsor is to examine two broad sets of people: (1) Their current employees who are not in an apprenticeship program, but who have the capacity to be in the apprenticeship program, and (2) the broader labor force in the relevant recruitment area who are qualified and available for apprenticeship.

To determine the availability percentages in proposed § 30.5(c), the benchmark to which the sponsor compares its apprenticeship program, the sponsor must use the most current and discrete statistical information available to derive availability figures by industry. Specifically, sponsors are asked to consult the Bureau of Labor Statistics' Occupational Handbook to review the educational background requirements for relevant occupations.

Examples of other publicly available data sources available for sponsors to use include, but are not limited to, data from the Census Bureau's American Community Survey EEO Tabulation 2006 to 2010 currently available at
http://www.census.gov/people/eeotabulation/data/eeotables20062010.html
; the Census Bureau's Census 2000 EEO Data Tool currently available at
http://www.census.gov/eeo2000/index.html
; the Census Bureau's Quick Facts tables currently available at
http://quickfacts.census.gov
; the Census Bureau's American Fact Finder currently available at
http://factfinder2.census.gov/faces/nav/jsf/pages/index.xhtml
; labor market information data from State workforce agencies; data from vocational education schools, secondary and post-secondary school or other career and employment training institutions; educational attainment data from the Census Bureau; and for sponsors of registered apprenticeship programs in the construction industry, any data provided by OFCCP through their regulations at 41 CFR part 60-4 or otherwise on the potential availability of workers by demographic group for employment in on-site construction occupations. “Potential availability percentage” means an availability estimate that reflects current employment in an on-site construction occupation and current employment in non-construction occupations that employ workers who have similar abilities and interests to the workers in the corresponding on-site construction occupation.

Proposed § 30.5(c)(4) would require a sponsor to define its recruitment area reasonably based on objective criteria and to document how the recruitment area was defined. Proposed § 30.5(c)(4) prohibits sponsors from drawing the relevant recruitment area in such a way as to have the effect of excluding individuals on the basis of race, sex, or ethnicity from consideration.

Finally, proposed § 30.5(d) would require a sponsor to establish a utilization goal in accordance with the procedures set forth in proposed § 30.6 when underutilization occurs. Underutilization is the difference between availability for apprenticeship in a given industry and incumbency (
i.e.,
the sponsor's apprentice workforce in that industry). In other words, the proposed rule would require a sponsor to establish a utilization goal when the sponsor's utilization of women, Hispanics or Latinos, and/or particular racial minority groups is less than would be expected given their availability for apprenticeship. Sponsors would be permitted to identify underutilization using a variety of methods, including the “any difference” rule,
i.e.,
whether any difference exists between the availability of individuals by race, sex, and ethnicity for apprenticeship in a given industry and the number of such persons actually employed as an apprentice in the industry; the “one person” rule,
i.e.,
whether the difference between availability and the actual employment of individuals as apprentices equals one person or more for a given race, sex, or ethnicity; 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; and a “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. Proposed paragraph 30.5(d) clarifies that utilization goals are not required where no disparity in utilization rates for any particular group has been found.

The methodology in proposed § 30.5 would refine a sponsor's utilization analysis and would help pinpoint whether any particular group is being underutilized, which will in turn aid the sponsor in fashioning a more tailored affirmative action program for addressing the specific underutilization. The Department recognizes that the existence of and access to relevant data sources may vary depending on the sponsor's geographic location and the occupations included in its registered apprenticeship program. The Department has intentionally designed proposed § 30.5 and related provisions for goal-setting in proposed § 30.6 to provide a broad framework that has the flexibility to accommodate continuing upgrades and improvements in publicly-available data sources appropriate for conducting utilization analyses.

The Department also plans to provide significant technical assistance and sub-regulatory policy and program guidance to assist program sponsors and Registration Agencies to comply with the proposed § 30.5 and proposed § 30.6. We anticipate that such guidance will address, among other things, how best to analyze a sponsor's registered apprenticeship program workforce, including through the use of data aggregation from a range of years of program operations in order to identify a utilization rate that is most meaningful to sponsors, including those with small apprenticeship programs, and a utilization goal for race, sex, and ethnicity that is appropriate to the size and circumstances of each sponsor's program. The Department believes the issuance of examples and technical assistance in guidance documents maintains the flexibility necessary to accommodate the evolving data analysis tools and data sources used for availability analysis and goal-setting. The Department welcomes specific comments and suggestions from the public regarding what data and/or tools exist that would enable program sponsors to determine, within their relevant recruitment area, the availability of individuals with the present or potential capacity for apprenticeship broken down by race, sex, and ethnicity. Also, the Department requests comments specifically addressing what criteria, other than educational attainment, sponsors can use to help distinguish between those individuals in the relevant recruitment area with the present or potential capacity for apprenticeship and those in

the relevant recruitment area without such capacity.

Establishment of Utilization Goals for Race, Sex, and Ethnicity (§ 30.6)

The Department proposes to remove current § 30.6 entitled “Existing list of eligibles,” because the Department is proposing to change the approach to selection procedures. For a discussion of the proposed selection procedures, see proposed § 30.10 discussed later in the preamble.

Proposed § 30.6 describes the procedures for establishing utilization goals and would replace the existing procedures set forth in § 30.4(f) of the current part 30. Under the current § 30.4(f), a sponsor is required to establish goals and timetables based on the outcome of the sponsor's analyses of its underutilization of minorities in the aggregate and women. It is acceptable for a sponsor to develop a single goal for minorities and a separate single goal for women, unless a particular minority group is employed in a substantially disparate manner in which case separate goals are required for each group. In establishing goals, the sponsor is encouraged to consider the results which could reasonably be expected from its good faith efforts to make its overall affirmative action program work. The current part 30 does not provide specific instructions on how to set a goal nor does it explain what constitutes good faith efforts on the part of a sponsor. In addition, under the current part 30, the form of goal that a sponsor is required to set depends on the nature of the selection procedure used. For selections based on rank from a pool of eligible applicants, for instance, sponsors are 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 Department proposes several changes to the current goal setting approach. First, for simplification, the proposed rule would require that sponsors adopt just one type of goal regardless of the selection procedure used. Under proposed § 30.6, a sponsor would be required to establish a utilization goal for representation of the particular group in the sponsor's apprenticeship program. Second, proposed § 30.6 would remove any reference to timetables, because the proposed goal setting approach requires that sponsors evaluate annually (or every two years, if it meets the conditions in the proposed § 30.4(e)) whether goals are needed and make adjustments to their goals as needed. Third, proposed § 30.6 would add language explaining that quotas are expressly forbidden; goals may not be used to extend a preference to any individual on the basis of race, sex, or ethnicity; and goals may not be used to supersede eligibility requirements for apprenticeship. Fourth, proposed § 30.6 would clarify that the percentage goal must be at least equal to the availability figure that the sponsor computes. Currently, part 30 is silent as to how a sponsor must calculate its goal, other than to say sponsors must create a goal when underutilization has been found. Finally, to ensure a sponsor's affirmative action program is tailored to address the barriers to EEO it has identified, proposed § 30.6 would require that goals be set only for the particular racial or ethnic group(s) that the sponsor has identified as being underutilized, rather than for minorities in the aggregate.

Utilization Goals for Individuals With Disabilities (§ 30.7)

Current § 30.7 is reserved. In keeping with the proposed expanded scope of part 30 and of the affirmative action requirements, this proposed rule would assign a new section entitled “Utilization goals for individuals with disabilities” to § 30.7. In contrast to the framework set forth for establishing utilization goals for race, sex, and ethnicity, proposed § 30.7 would establish a single, national utilization goal of 7 percent for individuals with disabilities that applies to all sponsors subject to proposed § 30.4, Affirmative Action Programs. Proposed § 30.7(a) sets forth this goal.

Proposed § 30.7(b) states that the purpose 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 industry, in order to assess whether any barriers to EEO remain. The goal serves as an equal opportunity objective that should be attainable by complying with all of the affirmative action requirements of part 30.

Proposed § 30.7(c) provides that the Administrator of OA will periodically review and update, as appropriate, the utilization goal established in proposed § 30.7(a).

Proposed § 30.7(d) sets out the steps that the sponsor must use to determine whether it has met the utilization goal. Proposed § 30.7(d)(1) states that the purpose of the utilization analysis is to evaluate the representation of individuals with disabilities in the sponsor's apprentice workforce grouped by industry and compare the rate against the utilization goal set forth in proposed § 30.7(a). If individuals with disabilities are represented in the sponsor's apprentice workforce in a given industry at a rate less than the utilization goal, the sponsor must take specific measures to address this disparity.

Proposed § 30.7(d)(2) explains that the utilization analysis is a two-step process. First, the sponsor is required to group all occupational titles represented in its apprenticeship program by industry. As discussed above, if a sponsor has apprenticeship programs in various occupations (
e.g.,
carpenter, electrician, glazier, maintenance technician), but these programs are all in one industry (
e.g.,
construction), then the sponsor conducts the utilization analysis based on that one industry. Next, for each industry represented, the sponsor must identify the number of apprentices with disabilities based on voluntary self-identification by the individual apprentices. Proposed § 30.7(d)(3) requires 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 § 30.4(e)).

When the percentage of apprentices with disabilities in one or more industry groups is less than the utilization goal proposed in § 30.7(a), proposed § 30.7(e) requires that the sponsor take steps to determine whether and where impediments to equal opportunity exist. Proposed § 30.7(e) explains that when making this determination, the sponsor must look at the results of its assessment of personnel processes and the effectiveness of its outreach and recruitment efforts as required by proposed § 30.9. If, in reviewing its personnel processes, the sponsor identifies any barriers to equal opportunity, then proposed § 30.7(f) requires that the sponsor 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.

Proposed § 30.7(g) clarifies that the sponsor's determination that it has not attained the utilization goal in one or more industry groups does not constitute either a finding or admission of discrimination in violation of part 30. It is important to note, however, that such a determination, whether by the sponsor or by the Registration Agency, will not impede the Registration Agency

from finding that one or more unlawful discriminatory practices caused the sponsor's failure to meet the utilization goal. In such a circumstance, the Registration Agency will take appropriate enforcement measures.

Lastly, proposed § 30.7(h) states that the goal proposed in this section must not be used as a quota or ceiling that limits or restricts the employment of individuals with disabilities as apprentices.

The establishment of a utilization goal for individuals with disabilities would be a new requirement, which the Department believes is warranted in light of the long-term and intractable nature of the substantial employment disparity between those with and without disabilities. Little Government data measuring the unemployment and workforce participation rates of individuals with disabilities exists prior to the 2000 Census. However, illustrative data can be found in the 1989 legislative history of the ADA. Explaining the need for inclusion of employment provisions in the then-pending legislation, the Senate reported that individuals with disabilities “experience staggering levels of unemployment.”
28

More specifically, the Senate reported that two-thirds of all disabled Americans of working age were not working at all, even though a large majority of those not working (66 percent) wanted to work.
29

28
Senate Committee on Labor and Human Resources, S. Rep. No. 101-116, 101st Cong, 1st Sess. (1989) at 9.

29

Id.
(citing a poll by the Lou Harris company).

Today, more than 20 years later, there continues to be a substantial discrepancy between the workforce participation and unemployment rates of working age
30

individuals with and without disabilities. As explained earlier in this preamble, 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.

30
The working age population consists of people between the ages of 16 and 64, excluding those in the military and people who are in institutions.

The establishment of a utilization goal for individuals with disabilities is not, by itself, a “cure” for this longstanding problem. We believe, however, that the goal proposed in this section 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 employment as an apprentice.

This adoption of a single, national goal of 7 percent would establish consistency among the Department's regulations requiring covered entities to engage in nondiscrimination and affirmative action for qualified individuals with disabilities. The Department's OFCCP recently published a Final Rule implementing section 503 of the Rehabilitation Act of 1973 (section 503) which establishes for the first time a single, national utilization goal of 7 percent for individuals with disabilities for all covered contractors. 78 FR 58682, Sept. 24, 2013.

As detailed in that Final Rule, the OFCCP derived this utilization goal in part from the disability data collected as part of the American Community Survey (ACS). The ACS was designed to replace the census “long form” of the decennial census, last sent out to U.S. households in 2000, to gather information regarding the demographic, socioeconomic and housing characteristics of the nation. Whereas the Census Bureau now only administers a very short survey for the decennial census, a more detailed view of the social and demographic characteristics of the population is provided by the ACS, which collects data from a sample of 3 million residents on a continuing basis.
31

31
A national sample of approximately 3 million addresses nationwide receives the ACS each year, with a portion of this total receiving the survey each month. For more information on the American Community Survey visit the Census Bureau's ACS Web page at
www.census.gov/acs
.

The ACS was first launched in 2005, after a decade of testing and development by the Census Bureau. Refinement of the questions designed to characterize disability status has been continuous, with the current set of disability-related questions incorporated into the ACS in 2008. Taken together, the six dichotomous (“yes” or “no”) disability-related questions
32

comprise the function-based definition of “disability,” used in the ACS and by most of the other major surveys administered by the Federal Statistical System.

32
The six questions are: Is this person deaf or does he/she have serious difficulty hearing? Is this person blind or does he/she have serious difficulty seeing even when wearing glasses? Because of a physical, mental, or emotional condition, does this person have serious difficulty concentrating, remembering, or making decisions? Does this person have serious difficulty walking or climbing stairs? Does this person have difficulty dressing or bathing? Because of a physical, mental, or emotional condition, does this person have difficulty doing errands alone such as visiting a doctor's office or shopping? 2009 American Community Survey, Questions 17-19.

The definition of disability used by the ACS, however, is clearly not as broad as that in the ADA and proposed here. For example, since the ACS questions do not say that one should respond without considering mitigating measures (
e.g.,
medication or aids), some individuals with disabilities that are well-controlled by medication (
e.g.,
depression or epilepsy) or in remission might respond to the ACS in a way that leads them not to be coded as “disabled.” Likewise, since the ACS questions do not include major bodily functions, an individual who has a disability that substantially limits a major bodily function such as HIV, cancer, or diabetes but does not limit an activity such as hearing, seeing or walking, might respond that he or she does not have a disability on the ACS. Despite its limitations, the ACS is the best source of nationwide disability data available today, and, thus, an appropriate starting place for developing a utilization goal.

Consistent with OFCCP's approach set forth in its Final Rule implementing section 503, OA proposes to set a single, national goal for individuals with disabilities, based on the most recent 2009 ACS disability data for the “civilian labor force” and the “civilian population,”
33

first averaged by EEO-1 job category, and then averaged across EEO-1 category totals. Specifically, the Department used the mean across these EEO-1 groups (5.7 percent) as a starting point for deriving a range of values upon which we will take comment; 5.7 percent 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 with the present or potential capacity 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. Therefore, 5.7 percent should not be construed as an affirmative action goal for individuals with disabilities under these authorities, nor convey a false

sense of precision. Even if the 5.7 percent represented a complete availability figure for all individuals with disabilities as defined under the ADA, we are concerned that such an availability figure does 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. Discouraged workers are those individuals who are not now seeking employment, but who might do so in the absence of discrimination or other employment barriers. There are undoubtedly some individuals with disabilities who, for a variety of reasons, would not seek employment even in the absence of employment barriers. However, given the acute disparity in the workforce participation rates of those with and without disabilities, it is reasonable to assume that at least a portion of that gap is due to a lack of equal employment opportunity.

33
The civilian labor force is the sum of people who are employed and those who are unemployed and looking for work. The civilian population is the civilian labor force plus civilians who are not in the labor force, excluding those in institutions.

One way to go about estimating the size of the discouraged worker effect would be to compare 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. Again, we believe this figure underestimates the percentage of discouraged workers who may be eligible for apprenticeship because it measures who in the current population,
with an occupation,
may be discouraged from employment, and individuals eligible for apprenticeship need not have had an occupation at any time.
34

34
This number was derived from an updated 2009 version of Table 24 in
Affirmative Action for People with Disabilities—Volume I: Data Sources and Models,
Economic Systems, Inc. (April 30, 2010) at 64. The original table uses ACS data from 2008.

Adding this figure to the 5.7 percent availability figure above results in the 7.4 percent.
35

OFCCP uses this level, rounded to 7 percent in its Final Rule to revise section 503 to avoid implying a false level of precision, as it is an initial approximation of the availability for employment of individuals with disabilities. OA adopts this approach in this proposed rule to revise part 30.

35
As it is derived from ACS data, the 1.7 percent is also a limited number that does not fully encompass all individuals with disabilities as defined in the ADA and this NPRM.

The Department recognizes that registered apprenticeship program sponsors who are subject to the utilization goal for individuals with disabilities (
i.e.,
those with five or more registered apprentices who are not otherwise exempt under proposed § 30.4(d)) often have programs that are quite small, some with less than twenty registered apprentices. The purpose of the utilization goal requirement is to encourage sponsors to be more aware of how effective their employment practices are in ensuring equal employment opportunity for individuals with disabilities.

Under this proposed rule, a sponsor who failed to meet the utilization goal for individuals with disabilities required in proposed § 30.7—for example, a sponsor with 14 apprentices, none of whom is an individual with a disability—would be required to determine whether and where impediments to equal opportunity exist, and if such problem areas are identified, to implement targeted outreach, recruitment, and retention activities to ensure that individuals with disabilities are, in fact, learning about registered apprenticeship opportunities. These targeted activities would be done in addition to the universal outreach and recruitment that is required of all sponsors and not in lieu of, with the end result being that the sponsor is, in fact, reaching the broadest pool of applicants and apprentices. In contrast, if the same sponsor with 14 apprentices had one or more apprentices with a disability, the sponsor would achieve the proposed utilization goal for individuals with disabilities, and would not be required to engage in targeted outreach, recruitment, and retention activities for individuals with disabilities. Instead, the sponsor would simply be required to continue to engage in universal outreach and recruitment that is required under § 30.3(b)(3) of this part.

The Department recognizes that many sponsors of registered apprenticeship programs and Registration Agencies will require assistance with implementing proposed § 30.7. We plan, therefore, to provide significant technical assistance and sub-regulatory policy and program guidance that will address, among other things, how best to analyze a sponsor's registered apprenticeship program workforce, including through the use of data aggregation from a range of years of program operations, in order to identify a utilization rate that is most meaningful to the sponsor; how to ensure equal employment opportunity through best practices; and how to ensure a work environment inclusive of individuals with disabilities.

The Departmen

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2015-27316. Public record. Not legal advice.