# Apprenticeship Programs; Equal Employment Opportunity > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2016-29910 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** December 19, 2016 - **Citation:** 81 FR 92026 ## Text DEPARTMENT OF LABOR Employment and Training Administration 29 CFR Parts 29 and 30 RIN 1205-AB59 Apprenticeship Programs; Equal Employment Opportunity AGENCY: Employment and Training Administration, Labor. ACTION: Final rule. SUMMARY: The U.S. Department of Labor (DOL or Department) is issuing this rule to modernize the equal employment opportunity regulations that implement the National Apprenticeship Act of 1937. The existing regulations prohibit discrimination in registered apprenticeship on the basis of race, color, religion, national origin, and sex, and require that sponsors of registered apprenticeship programs take affirmative action to provide equal opportunity in such programs. This rule updates equal opportunity standards in part 30 to include age (40 or older), genetic information, sexual orientation, and disability among the list of protected bases upon which a sponsor must not discriminate; improves and clarifies the affirmative action provisions for sponsors by detailing with specificity the actions a sponsor must take to satisfy its affirmative action obligations, including affirmative action for individuals with disabilities; revises regulations to reflect changes made in October 2008 to Labor Standards for Registration of Apprenticeship Programs, the companion regulations governing the conduct of registered apprenticeship programs; and improves the overall readability of part 30 through restructuring and clarification of the text. Wherever possible, this final rule has attempted to streamline and simplify sponsors' obligations, while maintaining broad and effective equal employment opportunity protections for apprentices and those seeking entry into apprenticeship programs. The policies and procedures of this rule promote equality of opportunity in apprenticeship programs registered with the Department and in apprenticeship programs registered with federally recognized state apprenticeship agencies. DATES: Effective date: These regulations are effective January 18, 2017. Compliance date: Several sections in the final regulation pertaining to equal employment and affirmative action violations specify extended periods beyond the effective date for sponsors to come into compliance with the rule. They are listed below, and described in more detail in the Section-by-Section Analysis and regulatory text. Unless otherwise indicated, sponsors must comply with the provisions of this regulation on the effective date: • 180 days after effective date: Obligations under § 30.3 • 2 years after effective date (or 2 years after registration, for sponsors registered after the effective date): Obligations under §§ 30.4(e), 30.5(b), 30.7(d)(2), 30.9, and 30.11 • At first compliance review after effective date: §§ 30.5(c), 30.6 FOR FURTHER INFORMATION CONTACT: John Ladd, Administrator, Office of Apprenticeship, Employment and Training Administration, U.S. Department of Labor, 200 Constitution Avenue NW., Room N-5641, Washington, DC 20210, oa.administrator@dol.gov, (202) 693-2796 (this is not a toll-free number). Individuals with hearing or speech impairments may access this telephone number via TTY by calling the toll-free Federal Information Relay Service at 1-800-877-8339. SUPPLEMENTARY INFORMATION: Statement of Legal Authority and Background Information The National Apprenticeship Act of 1937 authorizes the Department to formulate and promote the furtherance of labor standards necessary to safeguard the welfare of apprentices. 1 The responsibility for formulating and promoting these labor standards within the Department lies with the Employment and Training Administration's (ETA) Office of Apprenticeship (OA). As part of its duties, OA registers apprenticeship programs that meet certain minimum labor standards. These standards, set forth at 29 CFR parts 29 and 30, are intended to provide for more uniform training of apprentices and to promote equal opportunity in apprenticeship. 1 29 U.S.C. 50. The regulations at 29 CFR part 29 implement the National Apprenticeship Act by setting forth labor standards that safeguard the welfare of apprentices, including: Prescribing policies and procedures concerning the registration, cancellation, and deregistration of apprenticeship programs; the recognition of State Apprenticeship Agencies (SAA) as Registration Agencies; and matters relating thereto. On October 29, 2008, the Department published an amended part 29 to provide a framework that supports an enhanced, modernized apprenticeship system. 2 2 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 on certain protected bases. In addition, part 30 also requires that sponsors of registered apprenticeship programs take affirmative action to provide equal employment opportunity in such programs. The Department first published part 30 on December 18, 1963, by order of the President that the Secretary of Labor, in implementing the National Apprenticeship Act and Executive Order 10925, require that the admission of young workers to apprenticeship programs be on a completely nondiscriminatory basis. 3 At that time, the regulations prohibited discrimination based on race, color, religion, and national origin. Nondiscrimination on the basis of sex was added in 1971, as was the requirement for sponsors with five or more apprentices to develop and implement a written affirmative action plan (written AAP) for minorities. 4 In 1978, the Department amended these regulations to require inclusion of female apprentices in written AAPs. 5 This rule represents the first changes to these regulations since 1978. 3 28 FR 13775. 4 36 FR 6810, Apr. 8, 1971. 5 43 FR 20760, May 12, 1978. Apprenticeship is an earn-and-learn strategy combining on-the-job training with related technical (classroom) instruction, blending the practical and theoretical aspects of training for highly-skilled occupations. Apprenticeship programs are sponsored voluntarily by a wide range of organizations, including individual employers, employer associations, joint labor-management organizations, and other workforce intermediaries. As of the close of Fiscal Year 2015, there were about 21,000 program sponsors representing about 200,000 employers that offer registered apprenticeship training to more than 455,000 apprentices. 6 6 Fiscal Year (FY) 2015 national results available at http://doleta.gov/oa/data_statistics.cfm Registered apprenticeship is a voluntary national system under which the vast majority of program sponsors enter into agreements with their Registration Agencies without direct funding. Potential apprenticeship sponsors deciding whether or not to register their programs weigh the net benefits derived for meeting state and national standards for registration. There are numerous benefits to registering an apprenticeship program with the Department or an SAA. For the business sponsor, registration provides a structure and framework for developing skilled workers critical to a company's success, and connection to industry, education, and government resources for on-going management of the program and adaptation of new technologies and practices. For example, registered apprenticeships are automatically eligible to be listed as Eligible Training Providers within the workforce development system, the only such training model to have such treatment. Also, Federal government grants for apprenticeships are available to registered programs only. There are also economic incentives for apprenticeship employers in terms of the wage rates that apply to apprentices for work on projects covered by the Davis-Bacon Act and related Acts. For apprentices, registered apprenticeship comes with education and training without the high costs of a 4-year college education, and a nationally-recognized credential upon completion. American communities benefit from enhanced systems to develop skilled workers in high paying occupations through collaborative partnerships of education, industry, and government, working together and supporting quality training programs. OA oversees the National Apprenticeship System. OA serves as the Registration Agency, and its staff members are directly responsible for, registered apprenticeship activities in 25 States. It also provides technical assistance and oversight to 25 SAAs in the other 25 States, in the District of Columbia, the Virgin Islands, and Guam. In these “SAA States,” the SAA has requested and received recognition from the Secretary of Labor to serve as the entity authorized to register and oversee State and local apprenticeship programs for Federal purposes. Therefore, in SAA States, the SAA, in accordance with Federal regulations, serves as the Registration Agency and has responsibility for registering apprenticeship activities for Federal purposes. Apprenticeship programs appear in traditional industries, such as construction (which has historically trained the majority of apprentices) and manufacturing, as well as in new and emerging industries, such as health care, information and communications technology, transportation and logistics, and energy, which are projected to add substantial numbers of new jobs to the economy. Apprenticeship has become increasingly attractive to workforce policy-makers in the U.S., and more in focus after witnessing the expansive growth in apprenticeship in some of our closest allies, such as the United Kingdom, Canada, and Australia. U.S. policy-makers have studied these countries as well as several other European countries, such as Germany, Switzerland, and Austria, where apprenticeships have been ingrained in the culture for centuries and train large percentages of their workforce. The United States Departments of Labor, Commerce, and Education have signed Joint Declarations of Intent to cooperate on workforce training with both Germany 7 and Switzerland; 8 apprenticeship systems and strategies are featured in both of these Joint Declarations. 7 Joint Declaration of Intent between the U.S. and the Federal Republic of Germany signed June 5, 2015 https://www.dol.gov/ilab/diplomacy/Signed%20US-Germany%20JDoI%20(English).pdf . 8 Joint Declaration of Intent between the U.S. and the Swiss Confederation signed July 7-9, 2015 https://www.dol.gov/ilab/diplomacy/Switzerland-JDoI.pdf . In light of favorable policy research and the increased business demand for high-quality workforce skills and competencies, the Department substantially increased its investments in Registered Apprenticeship in recent years. 9 The Department's new initiative, ApprenticeshipUSA, seeks to advance apprenticeship and build a strong pipeline of skilled workers, critical for companies to grow their business and compete in the global economy. The ApprenticeshipUSA initiative is stepping up efforts to expand apprenticeship into high-growth industries and to support a uniquely American apprenticeship system. The Department is lifting the image and quality of Registered Apprenticeship throughout the nation, and broadening its scope of training and development activities into an array of diverse industries and occupations. 9 The Department awarded $175 million in American Apprenticeship Grants in September 2015. See https://www.dol.gov/opa/media/press/eta/ETA20151762.htm. Congress also issued a supplemental appropriation of $90 million to OA in Fiscal Year 2016, which OA is using for new investments through ApprenticeshipUSA to expand apprenticeship in the United States. See https://www.whitehouse.gov/the-press-office/2016/04/21/fact-sheet-investing-90-million-through-apprenticeshipusa-expand-proven (last accessed June 22, 2016). Through ApprenticeshipUSA, the Department has taken steps to focus on sector-based and industry engagement in expansion efforts, such as promoting business engagement in the Leaders of Excellence in Apprenticeship Development, Education, and Research (LEADERs) and the Sectors of Excellence in Apprenticeship (SEAs) initiatives, designed to expand the number of employers training apprentices, to increase program quality, and to build pipelines of diverse populations into apprenticeship. As apprenticeship expands in the U.S., the Department remains committed to long-standing principles of equal employment opportunity to ensure that this expansion draws from and benefits the entire American workforce, providing more Americans a path to good jobs and careers with living wages that apprenticeships offer, in line with the Administration's commitment to double and diversify apprenticeship. The Department is also committed to using these new initiatives and available resources, in conjunction with business, industry, and community partners, to collaborate and build new pipelines into apprenticeship programs, with diversity as a cornerstone of growth in our expansion efforts. Increasing diversity in apprenticeship will further the goals and demonstrate support of the President's Administration's My Brother's Keeper 10 (MBK) Task Force, a coordinated Federal effort to address persistent opportunity gaps faced by boys and young men of color and ensure that all young people can reach their full potential. This rule also builds upon programs such as the Women in Apprenticeship and Nontraditional Occupations (WANTO) 11 initiative, which provides technical assistance to improve outreach, recruitment, hiring, training, employment, and retention of women, including women of color and women with disabilities. The Department has additionally provided support for diversity in apprenticeship through the 2015 American Apprenticeship Initiative grant that supported programs with a focus upon including underrepresented populations, including women, people of color, and individuals with disabilities. 10 My Brother's Keeper initiative was announced by President Barack Obama on February 27, 2014, https://www.whitehouse.gov/my-brothers-keeper (last accessed May 11, 2016). 11 The WANTO Act of 1992, Public Law 102-530, 29 U.S.C. 2501 et seq. Building a sustained effort to ensure that the benefits apprenticeship programs provide are broadly available to all is a key goal of these revised regulations. The history, demographic patterns, and documented experiences in apprenticeships of members of certain underrepresented groups demonstrate the continuing obstacles to the full participation of these groups in registered apprenticeship programs. In evaluating the need for this rule, OA analyzed participant demographics in apprenticeship programs in construction and non-construction industries and the demographics of the national labor force. OA reviewed apprenticeship data from OA's Registered Apprenticeship Partners Information Data System (RAPIDS) 12 and analyzed national labor force data from the Current Population Survey (CPS). Using the data from these sources to compare the demographic characteristics of the national workforce to the demographics of individuals enrolled in apprenticeships makes clear that notable disparities exist in apprenticeship participation and completion. 12 RAPIDS includes individual, apprentice-level data from the 25 states in which OA is the Registration Agency and from the nine SAA states that have chosen to participate. However, unless otherwise stated, the tables and discussions of RAPIDS data are limited to the apprentice data managed by OA staff. The analysis excludes apprentice data maintained by State Apprenticeship Agencies, including those that participate in the RAPIDS database, since the majority of the SAA states provide limited aggregated information which does not lend itself to detailed statistical analysis of demographic characteristics. Given the unique structure of the Registered Apprenticeship system, OA believes that data managed by OA staff is an acceptable proxy for the nation as a whole, because this individual record dataset contains 62 percent of the total active apprentices nationwide (excluding active military members—USMAP). It should be noted that the United Services Military Apprenticeship Program (USMAP) serves approximately 21 percent of all U.S. apprentices. The comparisons made here between the demographics of the apprenticeship workforce and the demographics of the national labor force are made because using national-level data allows for the use of certain data breakdowns—such as looking at racial shares of the workforce of a particular level of educational attainment—that would not be possible to do using readily available public state-level data. The 25 states from which the RAPIDS data are drawn are, however, broadly demographically representative of the United States as a whole, and using aggregated data from only these 25 states would not have substantially impacted these comparisons. Looking at all participants in the labor force in calendar year 2015 over age 16, the shares that are women (46.8 percent) and Black or African American (12.3 percent) in the national labor force are not significantly different than the shares that are women and Black or African American in these 25 states (46.2 percent and 11.8 percent respectively), while the share of these states' labor forces that is Hispanic (19.7 percent) is actually somewhat higher than the share of the national labor force that is Hispanic (16.6 percent). Consequently, had aggregated state-level data from these 25 states been used instead of the national-level data, the disparities illustrated below would have likely looked largely identical or even slightly more substantial in the case of Hispanic workers. As described in more detail below, these data and other available analyses indicate that certain groups continue to face substantial barriers to entry into and, for some groups, completion of registered apprenticeships. These barriers result in the following: • Lower than expected enrollment rates in registered apprenticeships among women and specific minority groups; • To the extent that women and minorities participate in registered apprenticeships, concentration of these groups in apprenticeships for lower-paying occupations; and • Significantly lower apprenticeship completion rates among specific minority groups and lower construction apprenticeship completion rates among minority groups and women. It should also be noted that OA lacks data on the apprenticeship experiences of individuals with disabilities, which complicates efforts both to measure the challenges faced by this group and to address the disparities in access and participation that are likely to exist given the disparities faced by these individuals in the labor force more broadly. Women in Registered Apprenticeships In general, women's enrollment in registered apprenticeship programs is significantly lower than would be expected based on labor market data. This disparity exists in comparison to the number of men in registered apprenticeships and also in comparison to the number of women in the wider civilian labor force. As shown in Table 1, in FY2015 the national labor force was 53.2 percent male and 46.8 percent female, and even when looking only at the labor force lacking a college degree—those workers most likely to participate in apprenticeship programs—the labor force was still 43.0 percent female. 13 13 All figures derived from CPS data. Those participants in the labor force lacking a college degree consist of those with no high school diploma, those that completed high school but did not attend college, and those that attended some college but did not receive an associate's degree or bachelor's degree. Note that the Bureau of Labor Statistics only publishes educational attainment labor force statistics for individuals age 25 and over. Consequently, while the overall labor force shares presented in the Table 1 are for all individuals age 16 and above, the shares of labor force participants lacking a college degree are for individuals age 25 and above. While this means that the comparison between the latter set of figures and the apprenticeship workforce is not perfect given that many apprentices are below age 25, it nevertheless provides valuable insight into how the composition of the apprenticeship workforce compares to a group of workers of which they already are, or are likely to, become a part. Table 1—Male and Female Shares of National Labor Force in FY2015 Share of labor force (%) Share of labor force with no college degree (%) Men 53.2 57.0 Women 46.8 43.0 Source: Current Population Survey. Yet, as Table 2 illustrates, in the last decade, on average, women comprised only 7.1 percent of all new enrollments in registered apprenticeships, whereas men accounted for 92.9 percent. Additionally, while the share of newly enrolled apprentices that are women has fluctuated up and down by small margins over this period, overall no noticeable progress has been made, and the share of newly enrolled apprentices in FY2015 that were women is identical to the share in FY2006 that were women. Table 2—New Enrollments in Registered Apprenticeship by Sex and Fiscal Year, All Industries Fiscal year Female (%) Male (%) 2006 7.1 92.9 2007 6.1 93.9 2008 6.7 93.3 2009 7.8 92.2 2010 8.3 91.7 2011 6.7 93.3 2012 7.5 92.5 2013 6.7 93.3 2014 6.7 93.3 2015 7.1 92.9 10 Year Average 7.1 92.9 CPS Share of Labor Force (FY2015) 46.8 53.2 Source: Query of RAPIDS database—May 2016. Additionally, when looking at the 50 occupations with the largest number of apprenticeships, it becomes clear that women who are participating in the largest apprenticeship programs are disproportionately ending up in lower-paying occupations. 14 As shown in Table 3 below, while women account for 9.6 percent of the enrollments in apprenticeship programs in the lowest paying apprenticeable occupations, they make up only 2.2 percent of enrollments in apprenticeship programs in the highest paying apprenticeable occupations. Also illustrative of this fact is that while the 16 occupations comprising the lowest-paid tier of these 50 occupations account for only just over one-fifth of total apprenticeship enrollments, they account for nearly half of female enrollments. 15 14 Note that these 50 occupations accounted for 82.6 percent of all apprentices in the RAPIDS database as of September 2015. 15 Analysis of RAPIDS data from May 2016 query of RAPIDS database and BLS 2015 National Occupational Employment and Wage Estimates. Table 3—Representation of Women in Registered Apprenticeship in Top 50 (Most Populous) Apprenticeable Occupations in FY2015 Category Example job titles in the tier Mean hourly wage Women's share of enrollments (%) Highest Paid Occupations Tier (17 occupations) Electrician, Pipe Fitter, Plumber, Telecommunications Technician $28.04 2.2 Intermediate Paid Occupations Tier (17 occupations) Firefighter, Carpenter, Sheet Metal Worker, Glazier, Floor Layer 22.70 4.3 Lowest Paid Occupations Tier (16 occupations) Truck Driver, Roofer, Painter, Housekeeper, Cook, Child Care Development Specialist 17.16 9.6 Source: Query of RAPIDS database—May 2016; Bureau of Labor Statistics May 2015 National Occupational Employment and Wage Estimates. When analyzing the distribution of female apprentices on an industry basis, more pronounced disparities become apparent. As seen in Table 4 below, of the 20 major industries in which apprenticeship programs exist, women's share of apprenticeship enrollments is only greater than or equal to their share of the national labor force in three industries and greater than their share of the national labor force without a college degree in four industries (Healthcare and Social Assistance, Retail Trade, Finance and Insurance, and Warehousing). Among the top five industries by total apprenticeship enrollments (the first five industries shown in the Table 4), women's share of enrollments is no more than 11.6 percent. While there are many reasons that these apprenticeship enrollment rates do not equal the share of the labor force that is women or the share of the labor force without a college degree that is women, the magnitudes of the disparities present clearly indicate the presence of significant inequities in access and participation. Table 4—New Enrollments in Registered Apprenticeship by Sex and Industry in FY2015 Industry Total enrollments Female share (%) Construction 16 165,291 2.8 Public Administration 19,579 11.6 Manufacturing 17,154 8.0 Utilities 8,389 1.7 Transportation 4,951 5.9 Health Care and Social Assistance 2,274 71.2 Retail Trade 1,782 72.0 Education 1,755 17.1 Other Services, except Public Administration 1,658 15.6 Wholesale Trade 1,529 9.2 Administrative and Support and Waste Management and Remediation Services 959 18.6 Accommodation and Food Services 701 36.2 Agriculture, Forestry, Fishing and Hunting 701 8.0 Information 673 12.5 Professional, Scientific, and Technical Services 270 20.0 Mining, Quarrying, and Oil and Gas Extraction 225 3.1 Finance and Insurance 146 46.6 Arts, Entertainment, and Recreation 43 37.2 Real Estate and Rental and Leasing 43 7.0 Warehousing 41 58.5 Source: Query of RAPIDS database—May 2016. Disparities between male and female enrollment rates are particularly dramatic in the construction industry, where over 70 percent of apprentices were enrolled in FY2015. 17 That year, only 2.8 percent of enrollments were women, the second lowest female enrollment rate among all industries, trailing only the Utilities industry (1.7 percent). While historical and ongoing discrimination are not the sole explanations for this, the magnitude of the disparities seen in the data, along with several studies of the construction industry and the anecdotal experience of the women working in the industry who submitted comments to the proposed rule, suggest that discrimination remains a significant factor. 18 16 Joint apprenticeship training committees (JATCs) have been removed from the Education industry category and included in the Construction industry category. 17 Joint apprenticeship training committees (JATCs) have been removed from the Education industry category and included in the Construction industry category. 18 See, e.g., Permanent Commission on the Status of Women, “Pre-Apprenticeship Construction Training Manual for Women.” Hartford, CT, (2007); Byrd, B., “Women in Carpentry Apprenticeship: A Case Study,” 24 Labor Studies Journal, at 8 (Fall 1999); Ericksen, J., and Palladino Schultheiss D., “Women Pursuing Careers in Trades and Construction,” 36 Journal of Career Development at 69-70 (September 2009); Moir, S., Thomson, M., and Kelleher, C., “Unfinished Business: Building Equality for Women in the Construction Trades,” Labor Resource Center Publications. Paper 5 at 10-12 (2011); and “Women in the Construction Workplace: Providing Equitable Safety and Health Protection,” Health and Safety of Women in Construction (HASWIC) Workgroup, Advisory Committee on Construction Safety and Health (ACCSH), submitted to Occupational Safety and Health Administration (OSHA), Department of Labor (June 1999). In the proposed rule, the Department stated that the construction trades have traditionally used informal networks and referrals and word of mouth to recruit for open apprenticeships. While we recognize, in response to comments submitted, that significant progress has been made in wider recruitment for apprenticeships and in opening these networks, historical barriers linger. Personal introductions and recommendations (as well as nepotism in the past) continue to be significant factors in selection for construction apprenticeships and work, and many potential female apprentices are not even be aware of the apprenticeship and job opportunities available. 19 The problem of underrepresentation then perpetuates itself; because women have historically been underrepresented in construction apprenticeships and jobs, many of them may not have access to the interpersonal relationships and informal networks necessary to receive information concerning these opportunities and be selected for them. 20 Barriers remain even after women gain entry into these programs. Several women submitted comments recounting discrimination they faced during registered apprenticeship programs, such as being assigned more arduous tasks than male counterparts or otherwise being required to work harder than male counterparts to receive equivalent recognition, being given less skilled and meaningful tasks than male counterparts, being given fewer hours than male counterparts, and seeing men with less skill promoted ahead of them. Several female commenters described incidents of sexual harassment and retaliation that they experienced during their apprenticeships or while working in the trades. 19 See, e.g., Bilginsoy, C., “The Hazards of Training: Attrition and Retention in Construction Industry Apprenticeship Programs,” 57 Industrial & Labor Relations Review, at 54-67 (Oct. 2003); Byrd, B, “Women in Carpentry Apprenticeship: A Case Study,” 24 Labor Studies Journal, at 8-10 (Fall 1999); National Women's Law Center, “Women in Construction Still Breaking Ground,” (2014), available at http://www.nwlc.org/sites/default/files/pdfs/final_nwlc_womeninconstruction_report.pdf. 20 Bilginsoy, C., “The Hazards of Training: Attrition and Retention in Construction Industry Apprenticeship Programs,” 57 Industrial & Labor Relations Review, at 54-67, at 65 (Oct. 2003). Additionally, the author of a study on women in carpentry apprenticeships suggests that apprenticeship programs in construction need to make a concerted effort to recruit females if they want to increase the number of female applicants. Byrd, B., “Women in Carpentry Apprenticeship: A Case Study,” 24 Labor Studies Journal, at 10 (Fall 1999). In addition to low enrollment rates, women complete apprenticeships in the construction industry at lower rates than men. As shown in Table 5 below, while across all industries women complete apprenticeships at a higher rate (50.9 percent) than do men (42.0 percent), within the construction industry women completed apprenticeships at a rate of only 36.5 percent compared to 40.6 percent for men. Table 5—Apprenticeship Completion Rates in FY2015 by Sex FY2015 completion rates 21 Completions (all industries) Completion rate (all industries) Completions (construction) Completion rate (construction) (%) Male 23,763 42.0 11,685 40.6 Female 2,248 50.9 271 36.5 Source: Query of RAPIDS database—June 2016. These disparities can be addressed, however, and evidence illustrates that women do participate and succeed in apprenticeship programs at higher levels when provided equal opportunity and support. The state of Oregon, for example, has been proactively working to increase diversity in its highway construction workforce since 2009 by providing potential highway construction workers with a variety of supports to help them complete relevant apprenticeships. The state's Highway Construction Workforce Development Program (WDP) provides pre-apprenticeship programs, support services including childcare and transportation subsidies, and mentoring and retention services to help apprentices gain the training and credentials they need, with a particular emphasis on serving female and minority candidates. 22 A 2014 poll of apprentices by WDP found that 80 percent of female active apprentices reported that WDP supports allowed them to take a job they would not otherwise have been able to take, and completion rates for female apprentices who received financial services from the WDP were significantly higher than those who did not receive any services (60.9 percent versus 31.5 percent). 23 Between 2005 and 2013, the share of all heavy highway construction apprentices in Oregon that were female apprentices or apprentices of color increased from 16.5 percent to 26.9 percent, with the program likely playing a significant role in more recent years. 24 21 Completion rate means the percentage of an apprenticeship cohort who receives a certificate of apprenticeship completion within 1 year of the expected completion date. For more information see Bulletin FY 2011-07—Program Performance—Calculation of Registered Apprenticeship Program Completion Rates ( http://doleta.gov/OA/bul10/Bulletin_2011-07_Completion_Rates.pdf ). 22 S. Burd-Sharps, K. Lewis, and M. Kelly, “Building a More Diverse Skilled Workforce in the Highway Trades: Are Oregon's Current Efforts Working?” available at http://www.pdx.edu/sociology/sites/www.pdx.edu.sociology/files/Building%20a%20More%20Diverse%20Skilled%20Workforce%20in%20the%20Highway%20Trades%20FINAL%20REPORT.pdf. 23 Id. 24 Id. Examples such as that seen in Oregon demonstrate that progress can be made in improving women's participation and success in apprenticeship programs when doing so is made a priority. Making sure that women are aware of the apprenticeship opportunities available to them, that they receive equal opportunities to participate in those apprenticeship programs, and that they receive the same quality of training and mentorship in those programs are all critical to closing the significant utilization gaps we see today. Minorities in Apprenticeship The participation of racial and/or ethnic minorities in apprenticeships has been uneven and varies by group. In FY2015, the “Black or African American” demographic group 25 comprised 12.3 percent of the national labor force and 14.1 percent of the labor force without a college degree (see Table 6), but made up 10.0 percent of all apprenticeship enrollments. While those gaps are clearly substantially smaller than those seen among women, focusing only on this broad measure can mask significant underrepresentation of Black or African Americans in particular industries. 25 We refer herein to “Black or African American” because that is the racial categorization used by the Bureau of Labor Statistics in CPS data, and is in turn used within the definition of “race” in the part 30 regulations. See Bureau of Labor Statistics Glossary, available at http://www.bls.gov/bls/glossary.htm#R (last accessed June 24, 2016); 29 CFR 30.2. Table 6—Racial and Ethnic Composition of Labor Force in FY2015 Share of labor force (%) Share of labor force with no college degree (9%) White 78.8 78.5 Black or African American 12.3 14.1 Other Race 9.0 7.4 Hispanic or Latino 26 16.6 22.7 Source: Current Population Survey. For example, as can be seen in Table 7, while Black or African Americans were well-represented in apprenticeships in industries such as Public Administration, Health Care and Social Assistance, and Other Services in FY2015, they comprised only 8.8 percent of apprentice enrollments in Construction, the industry with by far the largest number of apprentices. Black or African Americans also comprised under 10 percent of enrollments in seven other industries, including Utilities; Agriculture, Forestry, Fishing, and Hunting; and Professional, Scientific, and Technical Services among others. These disparities illustrate the uneven manner in which Black and African Americans participate in apprenticeships across industries and also speak to the importance of disaggregating such enrollment data so as to gain a more accurate picture of where and to what extent different groups are being underrepresented. 26 Note that percentages in this table will not add up to 100 percent due to rounding and because there is overlap between the Hispanic or Latino ethnic group and the racial groups presented in the table. 27 Joint apprenticeship training committees (JATCs) have been removed from the Education industry category and included in the Construction industry category. Table 7—New Enrollments in Registered Apprenticeship by Race and Industry in FY2015 Industry Total enrollments White share (%) Black or African American share (%) Other race share (%) Unreported race share (%) Construction 27 165,291 62.4 8.8 7.2 21.5 Public Administration 19,579 62.0 24.4 3.5 10.1 Manufacturing 17,154 68.6 10.4 6.0 15.0 Utilities 8,389 74.5 6.8 4.0 14.6 Transportation 4,951 49.5 11.1 5.2 34.2 Health Care and Social Assistance 2,274 53.2 31.9 3.2 11.7 Retail Trade 1,782 26.3 14.3 3.3 56.2 Education 1,755 49.3 13.2 9.8 27.7 Other Services, except Public Administration 1,658 55.6 29.5 2.8 12.1 Wholesale Trade 1,529 66.8 13.3 2.0 17.8 Administrative and Support and Waste Management and Remediation Services 959 31.0 22.3 8.2 38.5 Accommodation and Food Services 701 68.2 13.0 8.3 10.6 Agriculture, Forestry, Fishing and Hunting 701 67.8 3.0 5.8 23.4 Information 673 56.8 16.2 18.1 8.9 Professional, Scientific, and Technical Services 270 55.6 5.9 21.1 17.4 Mining, Quarrying, and Oil and Gas Extraction 225 37.8 8.4 32.0 21.8 Finance and Insurance 146 67.1 24.7 4.1 4.1 Arts, Entertainment, and Recreation 43 48.8 9.3 14.0 27.9 Real Estate and Rental and Leasing 43 86.0 2.3 2.3 9.3 Warehousing 41 4.9 4.9 0.0 90.2 Source: Query of RAPIDS database—May 2016. Studies examining apprenticeship data at the occupation level have also presented compelling evidence that Blacks or African Americans are underrepresented in certain apprenticeable occupations. In an analysis of 2005-2007 ACS data broken down to the occupational level in the construction, extraction, and maintenance sector, researchers found that Black or African-American men experienced underrepresentation in 81 percent of the 67 precisely-defined occupations that comprise this sector. 28 28 The authors also found that across occupations in all sectors examined, Black or African-American men were underrepresented in 49 percent of occupations. To determine whether underrepresentation existed in a particular occupation, the authors compared the share workers in the occupation that were Black or African American to the share of workers in the occupation that one would have expected to be Black or African American given the proportion of Black or African-American workers that have the education level associated with that occupation. See Hamilton, D, Algernon A., and William D., Jr., “Whiter Jobs, Higher Wages: Occupational Segregation and the Lower Wages of Black Men.” Economic Policy Institute, Washington, DC (Feb. 2011). Examining the distribution of Hispanic apprentices illustrates a similar pattern of uneven participation of workers across industries and points to the existence of significant underrepresentation of Hispanics in a number of industries. In FY2015, Hispanics comprised 20.2 percent of apprenticeship enrollments, which was higher than their share of the national labor force (16.6 percent) but below their share of the labor force without a college degree (22.7 percent). Looking specifically at industry employment, it can be seen in Table 8 that while Hispanics were relatively well represented in industries such as Education and Wholesale Trade, of the top seven industries by apprenticeship enrollment, Hispanics accounted for less than 10 percent of enrollees in all but one (Construction). In total, Hispanics accounted for a share of enrollments that was below their share of the national labor force in 13 industries, and accounted for a share of enrollments that was below their share of the labor force without a college degree in 15 industries. Table 8—New Enrollments in Registered Apprenticeship by Ethnicity and Industry in FY2015 Industry Total enrollments Hispanic share (%) Non-Hispanic share (%) Unreported ethnicity share (%) Construction 29 165,291 21.2 55.7 23.1 Public Administration 19,579 7.2 46.8 46.0 Manufacturing 17,154 5.6 62.1 32.3 Utilities 8,389 7.2 61.7 31.1 Transportation 4,951 6.4 37.2 56.3 Health Care and Social Assistance 2,274 9.9 58.9 31.1 Retail Trade 1,782 4.7 14.9 80.4 Education 1,755 30.9 47.0 22.1 Other Services, except Public Administration 1,658 10.5 38.9 50.6 Wholesale Trade 1,529 24.0 61.7 14.3 Administrative and Support and Waste Management and Remediation Services 959 8.4 36.6 55.0 Accommodation and Food Services 701 8.1 47.9 43.9 Agriculture, Forestry, Fishing and Hunting 701 23.7 33.7 42.7 Information 673 22.1 44.7 33.1 Professional, Scientific, and Technical Services 270 7.4 55.6 37.0 Mining, Quarrying, and Oil and Gas Extraction 225 24.0 50.2 25.8 Finance and Insurance 146 2.1 87.7 10.3 Arts, Entertainment, and Recreation 43 23.3 58.1 18.6 Real Estate and Rental and Leasing 43 0.0 55.8 44.2 Warehousing 41 7.3 2.4 90.2 Source: Query of RAPIDS database—May 2016. Further, minority groups tend to be more concentrated in apprenticeships for lower-paying occupations than are apprentices as a whole. RAPIDS data for the 50 occupations with the largest numbers of apprentices show that both Black or African-American enrollees and Hispanic enrollees in apprenticeship programs make up higher shares of apprentices in low-wage occupations than of apprentices in high-wage occupations. As seen below in Table 9, while Black or African Americans comprise 17.3 percent of enrollees in the lowest-paid occupation tier, they account for only 7.8 percent of enrollees in the highest-paid tier, and while Hispanics comprise 22.4 percent of enrollees in the lowest-paid occupation tier, they account for only 15.6 percent of enrollees in the highest-paid tier. Further illustrating this point is that while enrollments in the bottom wage tier account for 21.2 percent of total apprenticeship enrollments among these 50 occupations, they account for 35.8 percent of Black or African American enrollments and 25.3 percent of Hispanic enrollments. 29 Joint apprenticeship training committees (JATCs) have been removed from the Education industry category and included in the Construction industry category. Table 9—Representation by Race in 50 Most Populous Apprenticeable Occupations FY2015 [RAPIDS data] Category Example job titles in the tier Mean hourly wage Black or African American share of enrollments (%) Hispanic share of enrollments (%) Highest Paid Occupations Tier (17 Occupations) Electrician, Pipe Fitter, Plumber, Telecommunications Technician $28.04 7.8 15.6 Intermediate Paid Occupations Tier (17 Occupations) Firefighter, Carpenter, Sheet Metal Worker, Glazier, Floor Layer 22.70 9.5 22.1 Lowest Paid Occupations Tier (16 Occupations) Truck Driver, Roofer, Painter, Housekeeper, Cook, Child Care Development Specialist 17.16 17.3 22.4 Source: Query of RAPIDS database—May 2016; Bureau of Labor Statistics May 2015 National Occupational Employment and Wage Estimates. Finally, RAPIDS data also reveal that there are challenges for minority groups in completion rates as well. For example, the FY2015 completion rate for Black or African American apprentices in all industries was only 39.3 percent, and in the construction industry it was only 30.6 percent (see Table 10). White apprentices, by comparison, had an all-industry completion rate of 47.3 percent, and a construction-industry completion rate of 44.6 percent. Similar patterns are seen among Hispanic apprentices, who had an all-industry completion rate of 31.7 percent and a construction-industry completion rate of 34.0 percent in FY2015, compared to a 46.5 percent all-industry completion rate and a 43.2 construction-industry percent completion rate among Non-Hispanics. 30 Completion rate means the percentage of an apprenticeship cohort who receives a certificate of apprenticeship completion within 1 year of the expected completion date. For more information see Bulletin FY 2011-07—Program Performance—Calculation of Registered Apprenticeship Program Completion Rates, available at http://doleta.gov/OA/bul10/Bulletin_2011-07_Completion_Rates.pdf. Table 10—Apprenticeship Completion Rates in FY2015 by Race and Ethnicity FY2015 completion rates 30 Completions (all industries) Completion rate (all industries) (%) Completions (construction) Completion rate (construction) (%) White 17,853 47.3 9,168 44.6 Black or African American 3,000 39.3 816 30.6 Non-Hispanic 15,690 46.5 7,951 43.2 Hispanic 3,709 31.7 1,568 34.0 Source: Query of RAPIDS database—June 2016. That such disparities and patterns of uneven participation exist is not surprising given the challenges often faced by many minorities and ethnic groups as they look to find work in the industries and occupations where apprenticeships are most common. These workers can be confronted by workplace cultures that are overtly or subtly hostile to workers of their race or ethnic background, and they often lack access to the types of interpersonal relationships and professional networks that would help them find jobs and receive the mentorship and training they need to complete their apprenticeships. One study of apprentices in the highway trades in Oregon published in 2015 documents all of these challenges. 31 In surveying apprentices in the highway trades, it found that 21 percent of men of color and 30 percent of women of color reported feeling disadvantaged on the job due to their race or ethnicity. Speaking to the issues surrounding minorities' access to critically important informal networks, the survey also found that while only 13 percent of white men stated that problems with journeyworkers were a challenge during their apprenticeship, 21 percent of men of color and 35 percent of women of color reported such problems. Indeed, while 79 percent of white men reported receiving mentoring on the job, only 60 percent of men of color and 38 percent of women of color reported the same. 31 M. Kelly et al., “When Working Hard is Not Enough for Female and Racial/Ethnic Minority Apprentices in the Highway Trades,” 30 Sociology Forum no. 2 (June 2015). All of these challenges and disparities can make it very difficult for minority workers to break in to trades in which they have not been traditionally well represented, but they can be successfully addressed by robust affirmative action efforts if these efforts are tailored to address the specific circumstances of the disparity. Individuals With Disabilities in Apprenticeship While the Department does not currently have data on the representation of persons with disabilities in apprenticeship programs, the underemployment of individuals with disabilities in the labor force more broadly is well documented. According to data from BLS, 30.5 percent of working-age individuals with disabilities were in the labor force in 2015, compared with 76.1 percent of working-age individuals with no disability. 32 The unemployment rate for working-age individuals with disabilities was 11.7 percent in 2015, compared with a 5.2 percent unemployment rate for working-age individuals without a disability. Furthermore, wages for individuals with disabilities on average lag behind the rest of the workforce. The mean weekly earnings of employed full-time wage and salary workers with a disability in 2015 were $962 (with a median of $737) compared to $1,157 (median $811) for those without a disability. 33 While 28.5 percent of individuals, ages 18 to 64, with a disability were in poverty in 2014, the data show that 12.3 percent of individuals without a disability were in poverty. 34 32 Source: Current Population Survey data. `Working age' refers to individuals between the ages of 16 and 64. As the Department's Section 503 Final Rule noted, this acute disparity in the workforce participation and unemployment rates of working age individuals with disabilities persists, despite the many technological advances that now make it possible for a broad array of jobs to be successfully performed by individuals with severe disabilities. 33 BLS unpublished table A-45. 34 Income and Poverty in the United States: 2014, Current Population Reports, issued September 2015, https://www.census.gov/content/dam/Census/library/publications/2015/demo/p60-252.pdf (last accessed June 3, 2016). Affirmative efforts to seek out individuals with disabilities and ensure they have fair access to apprenticeship programs and the “ticket to the middle class” that apprenticeship programs provide has the potential to powerfully impact these profound inequalities. Overview of the Apprenticeship Equal Employment Opportunity Notice of Proposed Rulemaking and Public Comments Leading up to the publication of the Notice of Proposed Rulemaking (NPRM), OA received valuable input from a broad array of interested individuals, including SAAs; the National Association of State and Territorial Apprenticeship Directors (NASTAD); advocacy organizations; registered apprenticeship program sponsors such as employers, employer associations, and labor-management organizations; journeyworkers; former apprentices; and registered apprentices. This input addressed features of the existing rules that work well, those that could be improved, and additional requirements that might help to effectuate the overall goal of ensuring equal opportunity for all individuals who are participating in or seeking to participate in the National Registered Apprenticeship System. Recurring themes in these town halls, webinars, and listening sessions included the need for increased outreach efforts to attract women and minorities; focus on equal training and retention of apprentices; stricter enforcement of the Equal Employment Opportunity (EEO) obligations; recognition of the voluntary nature of apprenticeship programs; clarification of complaint procedures; and progressive actions by Registration Agencies to achieve sponsor compliance with the regulations. In developing the proposed rule, the Department also consulted with its Advisory Committee on Apprenticeship (ACA). Chartered under the Federal Advisory Committee Act, the ACA provides advice and recommendations to the Secretary of Labor on a wide range of matters related to apprenticeship. The ACA is comprised of approximately 30 members drawn equally from employers, labor organizations, and the public. OA's NPRM was published in the Federal Register on November 6, 2015. 35 The NPRM sought public comment on a number of proposals designed to improve the regulations implementing EEO in apprenticeship. The NPRM was published for a 60-day public comment period. After receiving several requests to extend the public comment period, OA extended the public comment period an additional 15 days to January 20, 2016. 36 35 80 FR 68908. 36 80 FR 80307, Dec. 24, 2015. The NPRM contained four general categories of proposed revisions to the part 30 regulations: (1) Changes required to make part 30 consistent with the Labor Standards for Registration of Apprenticeship Programs set forth in part 29; (2) adding additional protected bases to those already delineated in part 30, and further clarifying the scope of some of the existing bases; (3) changes to enhance and clarify the affirmative steps sponsors must take to ensure equal employment opportunity, including the contents of affirmative action programs (AAPs), and how these obligations would be reviewed and enforced by Registration Agencies; and (4) changes to improve the overall readability of part 30. Wherever possible, this Final Rule has attempted to streamline and simplify sponsors' obligations, while maintaining broad and effective EEO protections for apprentices and those seeking entry into apprenticeship programs. The first set of changes proposed to align the EEO regulations at part 30 with its companion regulations at part 29, and are necessary to ensure a cohesive, comprehensive regulatory framework for the National Registered Apprenticeship System. To that end, the Department proposed to revise or add several definitions and incorporate the procedures set forth in part 29 for deregistration of apprenticeship programs, derecognition of SAAs, and hearings. The use of a more uniform set of procedures streamlines management of the National Apprenticeship System. Also proposed were a few minor, conforming changes in 29 CFR part 29, the companion rule to part 30. The second category of changes proposed to expand the protected bases upon which discrimination is unlawful and align the existing protected bases with current jurisprudence given the developments in EEO law since the regulations were last revised in 1978. Categories added to update the rule included age, disability, sexual orientation, genetic information; the proposal also took the position that sex discrimination included discrimination on the basis of pregnancy and gender identity. The third category of changes in the proposal was designed to improve the effectiveness of program sponsors' required affirmative action efforts and of Registration Agencies' efforts to enforce and support compliance with this rule. Among these proposed changes were the following: • Listing specific steps all sponsors must undertake to ensure equal employment opportunity, including: Dissemination of EEO policy; outreach and recruitment obligations in an effort to increase diversity in applications for apprenticeship; taking steps to keep the workplace free from harassment, intimidation, and retaliation; and assigning an individual at the sponsor to oversee EEO efforts (proposed § 30.3); • Specifying in clearer detail the components of a written AAP for those sponsors required to maintain one, allowing new sponsors more time to establish initial AAPs, and requiring an internal, annual review of all written AAP contents (with the possibility to extend the review to every two years if their review demonstrated compliance with all AAP elements) (proposed § 30.4); • As part of an AAP, simplifying the process by which sponsors analyze whether the apprenticeship program is underutilizing women or minorities, and accordingly whether they need to set utilization goals (proposed §§ 30.5-30.6); • Expanding the AAP to include affirmative action obligations on the basis of disability, including a 7% utilization goal for individuals with disabilities in apprenticeship programs and a self-identification mechanism allowing sponsors to quantitatively measure their progress against that goal (proposed §§ 30.7, 30.11); • Clarifying the existing outreach and recruitment AAP obligation, which required engaging in a “significant number” of ten possible activities, by specifying four required, common-sense activities (proposed § 30.8); • Requiring an annual review of personnel practices to ensure the program is operating free from discrimination (proposed § 30.9); • Providing sponsors greater flexibility in how they may select apprentices for their programs, provided that such selection mechanisms are free from discrimination and comport with the Uniform Guidelines for Employee Selection Procedures that already governed selection in the existing regulations (proposed § 30.10); and • Clarifying procedures for apprentices to file complaints of discrimination and the types of enforcement actions Registration Agencies may take in the event of violations (proposed §§ 30.12-30.15). While progress has been made in some segments of the workforce since the promulgation of the existing part 30, these enhancements and improvements were proposed to address the ongoing widespread underutilization of historically disadvantaged worker groups in apprenticeship. The Department has a compelling interest in ensuring that its approval of a sponsor's apprenticeship program does not serve to support, endorse, or further promote discrimination. The fourth category of changes was proposed to improve the overall readability of part 30 through a reorganization of the part 30 requirements, basic editing, providing clarifying language where needed, and adhering to plain language guidelines. This includes replacing the word “shall” with “must” or “will” as appropriate to the context. The proposed rule added a new section setting forth the effective date for this rule and for programs currently registered to come into compliance with the revised regulations. OA received 245 comments on the NPRM. Commenters represented diverse perspectives including: 107 individuals; 45 advocacy and public interest groups; 27 Joint Apprenticeship Training Committees (state/local); 13 state government agencies; 11 industry association/business interests; 10 national unions; 9 state and local unions; and 5 private employers. The commenters raised a broad range of issues. Most commenters supported the broader intent of increasing diversity and equal opportunity to bolster inclusion efforts, and many commenters strongly supported the expanded protections proposed in the NPRM. Other commenters raised various concerns with the cost and burden associated with the proposed rule, and questioned whether various proposals were feasible for sponsors to undertake and/or comply with. Among the primary issues raised by these commenters were: • Whether the obligations under the new rule conflicted with the obligations of certain sponsors under Employee Retirement Income Security Act (ERISA) to act as a fiduciary for the training plans; • The application of certain non-discrimination, affirmative action, and recordkeeping obligations to certain group sponsors, whom commenters believed would not have the ability to control personnel actions made and records kept by participating employers (proposed §§ 30.3-30.12); • The definition of sex discrimination, which many commenters believed should specifically include discrimination on the basis of pregnancy, gender identity, and sexual orientation; • The exemption from AAP obligations for those sponsors with fewer than 5 apprentices (proposed § 30.4), which was carried over from the existing rule. These comments were split between those who wanted the exemption eliminated altogether versus those who wanted the exemption expanded to include sponsors with larger apprenticeship programs; • Questions of burden related to the frequency and extent of various elements of the AAP (proposed §§ 30.4-30.9); • The burden of requiring sponsors to complete utilization analyses for race and sex (proposed §§ 30.5-30.6), given that, while required under the existing rule, many sponsors do not have experience undertaking this analysis and have in practice relied upon Registration Agencies to do so on their behalf. Related, a number of commenters cited a lack of clarity on various facets associated with utilization goals (§§ 30.5-30.6), such as defining a relevant recruitment area; • The feasibility of the new 7% disability goal and attendant self-identification requirements (proposed § 30.7 and 30.11), with some commenters arguing for a lower goal and some a higher goal, as well as whether pre-offer self-identification inquiries comport with State and Federal laws; and • The new enforcement measure that would allow Registration Agencies to suspend sponsors (proposed § 30.15), which some commenters believed lacked due process considerations and could be used punitively for political reasons by certain SAAs. The active engagement from stakeholders to provide their ideas about and comments on the proposed rule resulted in a Final Rule that streamlines and simplifies the obligations of sponsors to the extent possible while maintaining broad equal employment opportunity protections for apprentices. Overview of the Final Rule This Final Rule responds to and incorporates the public input received during the open comment period and ACA consultation, as well as OA's analysis regarding barriers to entry, underutilization, and discrimination in apprenticeship and nontraditional occupations for underrepresented groups and best practices to address these challenges. The Final Rule includes the same basic structure and many of the same proposals that were announced in the NPRM. However, to focus the Final Rule more closely on key issues, incorporate public comment, and to reduce the burden to the extent possible while maintaining the efficacy of nondiscrimination and affirmative action efforts, the Final Rule also revises or eliminates some of the NPRM's proposals. A summary of the significant changes from the NPRM are as follows: • Generally providing more time for sponsors—both those currently registered and those who may register programs in the future—to comply with the new non-discrimination and affirmative action obligations; • Adjusting the workforce analysis so that it is conducted at the occupation level, and the utilization analysis at the major occupation category level, using a common source of data easily accessible to sponsors; • Clarifying that Registration Agencies will significantly assist sponsors in conducting utilization analyses; • Clarifying that failure to meet utilization goals will not, in and of itself, result in the assessment of any enforcement actions or sanctions. In so doing, the Final Rule clarifies the goals are not quotas, which in fact are legally impermissible, and that goals do not displace in any way merit selection principles; indeed, the rule specifically prohibits selections made on the basis of a protected category; • Revising the proposed program suspension alternative in the enforcement action to address due process concerns raised by commenters; and • Allowing SAAs more time to submit their State EEO plan to come into compliance with these regulations. These and other changes to the Final Rule, as well as a full response to the significant comments received and clarifying guidance on how the rule should be interpreted, are set forth in the Section-by-Section Analysis below. Section-by-Section Analysis Description of Part 30 The description of part 30 in the existing regulations reads “Equal Employment Opportunity in Apprenticeship and Training.” The NPRM proposed to delete the words “and Training” to clarify that the rule applies only to apprenticeship programs registered under the National Apprenticeship Act, and not to other training programs. The proposed change was also consistent with the recent change of the name of the Department's apprenticeship agency to the Office of Apprenticeship, from the Bureau of Apprenticeship and Training. We received no comments on this proposed change. Accordingly, the Department adopts the proposed language describing part 30 in the Final Rule. Purpose, Applicability, and Relationship to Other Laws (§ 30.1) The existing § 30.1 set forth the scope and purpose in one paragraph and laid out the range of activities to which the policies apply. The NPRM proposed to revise the title by replacing “Scope and purpose” with “Purpose, applicability, and relationship to other laws,” organized the text to fall under these three categories, and provided clarifying details to enhance readability of the section. The Department received only one comment, from a national JATC, suggesting that the current text be retained because it contains the same information in a more concise manner. We respectfully disagree, and believe that the expanded nature of proposed § 30.1 makes it helpful to the reader to divide the section's provisions among three separate paragraphs: Proposed § 30.1(a) set forth the purpose of the rule; proposed § 30.1(b) addressed to whom the rule applies; and proposed § 30.1(c) discussed how this regulation relates to other laws that may apply to the entities covered by this regulation. We therefore adopt the structure of § 30.1 as proposed. Paragraph 30.1(a): Purpose Proposed § 30.1(a) added age (40 or older), genetic information, sexual orientation, and disability to the list of bases set forth in the rule upon which a sponsor of a registered apprenticeship program must not discriminate. The Department received numerous comments addressing these proposed changes, which were generally supportive, although one commenter cautioned the Department not to discount the fact that prohibiting discrimination on the basis of sexual orientation may raise implementation questions for sponsors and require technical assistance. The Department is prepared to undertake such assistance. Among the several commenters that were supportive of the expanded protections, many suggested additional clarifications. Starting with those protected bases in the existing rule, the NPRM explained that the Department interprets discrimination on the basis of “sex” to include both pregnancy and gender identity discrimination, and clarified this interpretation in the proposed regulatory text at § 30.3(c), which provided the contents of sponsors' equal opportunity pledge, by explicitly including pregnancy and gender identity in a parenthetical following “sex” to make this clear. The Department received numerous comments advocating that pregnancy and gender identity be explicitly listed as separate grounds of discrimination, rather than considered under the umbrella of sex discrimination. Per the language of relevant authorities and case law, both pregnancy and gender identity have been analyzed as forms of sex discrimination. 37 The final rule retains, in the E.O. pledge set forth in § 30.3(c), the proposed rule's parenthetical explaining that sex discrimination includes discrimination on the basis of gender identity and pregnancy. We include the parenthetical explanation in this one portion of the regulation because it is the language that will be incorporated into registered apprenticeship standards and apprenticeship opportunity announcements and thus more visible to those the rule protects, but this interpretation applies wherever sex is discussed in the regulation. As set forth in the discussion of § 30.3(a)(2) herein, the Department will look to the legal standards and defenses that apply under Title VII and Executive Order 11246, as applicable, in determining whether a sponsor has engaged in discrimination made unlawful by § 30.3(a)(1), including sex discrimination. 37 Regarding pregnancy, see 42 U.S.C. 2000e(k) (“The terms “because of sex” or “on the basis of sex” include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions”); 41 CFR 60-20(a) (stating that under Executive Order 11246, sex discrimination includes discrimination on the basis of pregnancy, childbirth, or related medical conditions); see also EEOC Facts About Pregnancy Discrimination, available at https://www.eeoc.gov/eeoc/publications/fs-preg.cfm (last accessed Sept 14, 2016). Regarding gender identity, see, e.g., 41 CFR 60-20.2(a) (stating that, under Executive Order 11246, discrimination on the basis of sex includes discrimination on the basis of gender identity); Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011); Kastl v. Maricopa Cnty. Cmty. Coll. Dist., 325 F. App'x 492 (9th Cir. 2009); Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004); Fabian v. Hosp. of Cent. Conn., 2016 WL 1089178, * 14 (D. Conn. Mar. 18, 2016); Schroer v. Billington, 577 F. Supp. 2d 293 (D.D.C. 2008). The Department is aware of the recent decision in Texas v. U.S. , No. 7:16-cv-00054-O, 2016 WL 4426495 (N.D. Tex. Aug 21, 2016), in which the court issued a preliminary injunction enjoining several Federal agencies, including the Department, from enforcing certain guidance pertaining generally to the issue of transgender access to sex segregated facilities. As of when this rule was sent for publication, the effect of that injunction on the Department's programs is unclear and under consideration by the District Court. See Order, Texas v. U.S. , No. 7:16-cv-00054-O (N.D. Tex. Oct. 18, 2016), ECF No. 86 (ordering additional briefing as to whether the injunction applies to Title VII and whether and how the injunction applies to DOL). The Department will monitor this and other cases. The NPRM also proposed to include four new grounds to the list of protected bases upon which a sponsor must not discriminate: Age (40 or older); genetic information; sexual orientation; and disability. The Department responds to the comments received on each in turn. Age (40 or Older) Of the few commenters who weighed in on the addition of age discrimination, including a national JATC, an advocacy organization, and one individual, all supported its inclusion as a prohibited ground of discrimination. Among these, a national JATC said its industry's programs have been following the Equal Employment Opportunity Commission (EEOC) interpretations and/or State law and including age as a protected category, and that there are many examples of older workers entering the electrical industry through apprenticeship as second careers. An individual commenter relayed personal experience of being excluded from apprenticeship programs due to age, and thus could benefit from this added protection. Accordingly, the Final Rule adopts the addition of age as a protected basis, as proposed. Genetic Information With regard to genetic information, those few commenters weighing in all supported its addition to the list of prohibited grounds of discrimination. The national JATC said joint labor-management committees already are prohibited from discriminating against employees or applicants because of genetic information, so this will not be a change for these apprenticeship programs. Accordingly, the Final Rule adopts the addition of genetic information as a protected basis, as proposed. Sexual Orientation Numerous commenters, including advocacy organizations, individual commenters, a professional association, and a State Workforce Agency (SWA), supported the rule's explicit inclusion of sexual orientation on the list of protected bases. Several advocacy organizations said individuals who identify as lesbian, gay, or bisexual face high levels of discrimination and harassment at work based on their sexual orientation and this revision is in line with current law and within the Department's rulemaking authority. Several of the above commenters plus additional advocacy organizations urged the Department to make clear that sexual orientation discrimination and sex stereotyping discrimination are also prohibited forms of sex discrimination. One of these commenters, an advocacy organization, stated that, while the legal landscape continues to evolve, it is now clear that a division between sexual orientation and sex discrimination is unsustainable and providing this additional clarification in the final regulation would provide the fullest protection for program participants. A national JATC urged some caution, noting that the interpretation announced by the EEOC in its 2015 Baldwin decision 38 that sexual orientation discrimination is per se sex discrimination under Title VII was not yet settled law. 38 Baldwin v. Foxx, Appeal No. 0120133080, 2015 WL 4397641 (EEOC July 16, 2015). The Final Rule adopts the NPRM's proposed inclusion of sexual orientation as a stand-alone protected category. As discussed in the NPRM, adding sexual orientation as a protected characteristic is consistent with both the statutory authority requiring the formulation of “labor standards necessary to safeguard the welfare of apprentices,” 39 and the Department's purpose and approach since part 30 was first established: to promote equality of opportunity in registered apprenticeship programs and prevent discrimination in the recruitment, selection, employment, and training of apprentices by requiring, among other things, that apprentices and applicants for registered apprenticeship are selected according to objective and specific qualifications relating to job performance. We note further that the addition of sexual orientation as a protected basis aligns with developments in legal protections over the last two decades. At the time of publication, 22 States and the District of Columbia, in addition to numerous additional counties and municipalities across the country, have laws explicitly prohibiting employment discrimination on the basis of sexual orientation in the public and private sectors. 40 Accordingly, the Final Rule retains sexual orientation as its own protected basis. We do note, as discussed more fully in later sections, that the Final Rule does not require sponsors to collect employee or applicant data on sexual orientation, conduct specific outreach, or otherwise include sexual orientation in the utilization analyses required under AAPs pursuant to § 30.4. This is consistent with the Department's Office of Federal Contract Compliance Programs' (OFCCP) approach to sexual orientation in its programs. 39 29 U.S.C. 50. 40 https://www.aclu.org/maps/non-discrimination-laws-state-state-information-map (last accessed May 4, 2016). With regard to commenters' requests that the rule state that sexual orientation discrimination is also a per se form of sex discrimination, the Department supports this view as a matter of policy. Federal agencies have taken an increasing number of actions to ensure that lesbian, gay, and bisexual individuals are protected from discrimination, 41 and court decisions have increasingly made clear that individuals and couples deserve equal rights regardless of their sexual orientation. 42 The Department further notes that this area of title VII law is still developing. In Baldwin, the EEOC—the lead Federal agency responsible for administering and enforcing title VII—offered a legal analysis and review of the title VII case law and its evolution, concluding that sexual orientation is inherently a “sex-based consideration” and that discrimination on the basis of sexual orientation is therefore prohibited by title VII as one form of sex discrimination. 43 As the EEOC noted in that case, in Oncale v. Sundowner Offshore Services, a unanimous Supreme Court stated that “statutory prohibitions often go beyond the principal evil [they were passed to combat] to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” 44 More than fifty years after the passage of the Civil Rights Act of 1964, the contours of the law governing sex discrimination in the workplace have changed significantly. Over the past two decades, an increasing number of Federal court cases, building on the Price Waterhouse rationale, have found protection under title VII for those asserting discrimination claims related to their sexual orientation. 45 In light of this legal framework, and for consistency with the position taken by the Department's OFCCP in its recently issued Sex Discrimination regulations and the Department of Health and Human Services in its rule implementing Section 1557 of the ACA, the Department will interpret sex discrimination under this Final Rule to cover treatment of employees or applicants adversely based on their sexual orientation where the evidence establishes that the discrimination is based on gender stereotypes. The Department will continue to monitor the developing law on sexual orientation discrimination as sex discrimination, and will consider issuing further guidance on this subject as appropriate. 41 See, e.g., 80 FR 9989 (Feb. 25, 2015) (DOL amendment of the regulatory definition of spouse under the Family and Medical Leave Act (FMLA) so that eligible employees in legal same-sex marriages are treated the same way for FMLA purposes as employees in opposite-sex marriages); 45 CFR 155.120(c)(1)(ii) and 156.200(e) (HHS regulations barring discrimination on the basis of sexual orientation by Health Insurance Marketplaces and issuers offering qualified health plans); U.S. Citizenship and Immigration Services, Same Sex Marriages, https://www.uscis.gov/family/same-sex-marriages (last accessed May 13, 2016) (treating immigration visa petitions filed on behalf of same-sex spouses in the same manner as those filed on behalf of opposite-sex spouses). 42 For example, in 1996, the Supreme Court struck down an amendment to the Colorado constitution that prohibited the State government from providing any legal protections to gay, lesbian, and bisexual individuals. Romer v. Evans, 517 U.S. 620 (1996). And, just last year, the Supreme Court ruled in Obergefell v. Hodges, 135 S. Ct. 2584 (2015), that states may not prohibit same-sex couples from marrying and must recognize the validity of same-sex couples' marriages. See also United States v. Windsor, 133 S. Ct. 2675 (2013) (declaring unconstitutional the federal Defense of Marriage Act's definition of “marriage” as only a legal union between a man and a woman); Lawrence v. Texas, 539 U.S. 558 (2003) (declaring unconstitutional a state statute criminalizing consensual same-sex sexual conduct). 43 Baldwin, 2015 WL 4397641 (July 16, 2015). EEOC relied on several analyses to reach this conclusion: a plain reading of the term “sex” in the statutory language, an associational analysis of discrimination based on “sex,” and the gender stereotype analysis announced in Price Waterhouse v Hopkins, 490 U.S. 228 (1989). 44 Id. at 13 (quoting Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 79 (1998) (alteration in original) (internal quotation marks omitted)). 45 See, e.g., Prowel, 579 F.3d at 291-92 (harassment of a plaintiff because of his “effeminate traits” and behaviors could constitute sufficient evidence that he “was harassed because he did not conform to [the employer's] vision of how a man should look, speak, and act—rather than harassment based solely on his sexual orientation”); Nichols v. Azteca Rest. Enter., Inc., 256 F.3d 864, 874-75 (9th Cir. 2001) (coworkers' and supervisors' harassment of a gay male because he did not conform to gender norms created a hostile work environment in violation of Title VII); Hall v. BNSF Ry. Co., No. C13-2160 RSM, 2014 WL 4719007, at *3 (W.D. Wash. September 22, 2014) (plaintiff's allegation that “he (as a male who married a male) was treated differently in comparison to his female coworkers who also married males” stated a sex discrimination claim under title VII); Terveer v. Billington, 34 F. Supp. 3d 100 (D.D.C. 2014) (hostile work environment claim stated when plaintiff's “orientation as homosexual” removed him from the employer's preconceived definition of male); Heller v. Columbia Edgewater Country Club, 195 F. Supp. 2d 1212, 1224 (D. Or. 2002) (“[A] jury could find that Cagle repeatedly harassed (and ultimately discharged) Heller because Heller did not conform to Cagle's stereotype of how a woman ought to behave. Heller is attracted to and dates other women, whereas Cagle believes that a woman should be attracted to and date only men.”); Centola v. Potter, 183 F. Supp. 2d 403 (D. Mass. 2002) (“Sexual orientation harassment is often, if not always, motivated by a desire to enforce heterosexually defined gender norms. In fact, stereotypes about homosexuality are directly related to our stereotype about the proper roles of men and women.”). Cf. Videckis v. Pepperdine Univ., No. CV 15-00298 DDP (JCx), 2015 WL 1735191, at *8 (C.D. Cal. April 16, 2015) (harassment and adverse treatment of students because of their sexual orientation may state a claim of sex discrimination under title IX, because it is a form of sex stereotyping; indeed, “discrimination based on a same-sex relationship could fall under the umbrella of sexual discrimination even if such discrimination were not based explicitly on gender stereotypes”). Disability Multiple commenters supported the Department's proposal to add disability to the list of protected categories against which apprenticeship programs may not discriminate. An individual commenter asserted the need for more apprenticeship programs that are open to individuals with disabilities, as individuals with disabilities continue to struggle to find and keep employment. A number of comments raised specific questions about how the proposed disability non-discrimination and affirmative action obligations would be implemented. Many of these comments are addressed in the discussions of §§ 30.7 and 30.11, but we respond to two of these concerns here because they implicate the purpose of the proposed rule and, to some extent, questions of applicability that are germane to § 30.1. Specifically, one commenter cited other federal regulations to which they must adhere that prohibit the employment of workers who perform work that present dangers to themselves, co-workers, and the general public. Other commenters implied generally that employment of individuals with disabilities was problematic in their particular industry due to physical requirements of the position. As to the first, nothing in this Final Rule requires sponsors to employ individuals who present dangers to themselves or others. The rule incorporates the “direct threat” defense that is well-established in disability law jurisprudence, which specifically allows an employer to require that an individual be able to perform the essential functions of the position held or desired without posing a direct threat to the health or safety of the individual or others in the workplace. As to the second, to the extent that commenters are seeking exemptions from the disability protection in the Final Rule due to their particular industry, the Department declines to grant such exemptions. Requests to exempt sponsors from disability-related obligations in this Final Rule for safety-sensitive positions or for physically demanding jobs are based on the fundamentally flawed notion that individuals with disabilities as a group are incapable of working in these jobs. The Department does not support this belief and will not construct an avenue to permit sponsors to avoid recruiting and selecting individuals with disabilities for certain apprenticeships. We acknowledge that some individuals with certain disabilities—as well as some individuals without disabilities—may not be able to perform some jobs; this does not countenance broader exclusions from the obligations set forth in this rule. 46 Not all disabilities have physical limitations, and not all physical limitations will be relevant to the job at hand. 46 See Associated Builders & Contractors, Inc. v. Shiu, 30 F. Supp. 3d 25, 44 (D.D.C. 2014), aff'd, 773 F.3d 257 (D.C. Cir. 2014), cert. denied, 135 S. Ct. 2836 (U.S. June 15, 2015) (“Indeed, many disabilities would have little effect on employment by construction contractors. For example, `a person with an auditory processing disorder would typically need no accommodation to work as [a] carpenter. A person with a significant stutter would ordinarily need no accommodation to operate machinery.' These examples are not an exhaustive list and there are many additional disabilities that, with reasonable accommodation, would not preclude an individual from engaging in even more construction-industry jobs.”) (internal citations omitted). Proposed Additional Grounds Several commenters suggested other possible bases for protection against discrimination in apprenticeship programs, including caregiving status ( e.g., parental responsibilities), military service, and criminal background. These protected categories are beyond the scope of what was proposed in the NPRM, therefore we did not add them to the Final Rule. However, we note that discrimination based on some of these proposed additional categories may be actionable under already existing categories or under other, already applicable, laws. Paragraph 30.1(b): Applicability Proposed § 30.1(b) simplifies the earlier description of the scope of the provision by stating clearly that the rule applies “to all sponsors of apprenticeship programs registered with either the U.S. Department of Labor or a recognized SAA.” A number of comments raised questions regarding how the obligations of this rule would apply differently, if at all, to the different models of sponsors. Some sponsors employ the apprentices and thus their control over the terms and conditions of employment is more clear, while “group” sponsors work with groups of employers where apprentices may be hired or placed and the various types of employment actions prohibited by this rule may be undertaken by these employers, rather than the sponsor. Throughout the Section-by-Section analysis below, the Department has provided clarification with respect to implementing particular requirements depending on the model of sponsorship. In general, per the text of § 30.1(b), the Department recognizes the sponsor as the entity assuming the equal employment opportunity and affirmative action obligations of this part. To the extent that the sponsor has the ability to control, or otherwise has input into, any of the various employment actions held unlawful by these regulations, its obligations under these regulations are clear. In those situations where discriminatory actions or other actions in violation of this part are taken by participating employers, when the sponsor has knowledge of such actions it has an obligation to undertake steps to address the violation. Historically, this has been accomplished by written agreements entered into between the sponsor and employer setting forth “reasonable procedures . . . to ensure that employment opportunity is being granted,” 47 as well as through the recordkeeping requirements obligating the sponsor to keep adequate employment records of its apprentices. Were certain categories of sponsors exempted from these general obligations, it could render meaningless many portions of these regulations and the role of the apprenticeship sponsor to help ensure equal employment opportunity that has existed for several decades. 47 See existing 29 CFR 30.4(c)(10). Paragraph 30.1(c): Relationship to Other Laws Proposed § 30.1(c) clarified that part 30 would not invalidate or limit the remedies, rights, and procedures under any Federal law, or the law of any State or political subdivision, that provides greater or equal protection for individuals under the protected bases. One advocacy organization recommended that the Department work with the EEOC to ensure that part 30 is consistent with other agency directives, including the 2012 EEOC guidance on employer consideration of criminal records. To that end, we note, as we did in the NPRM, that these regulations generally follow Title VII legal principles in their interpretation of the non-discrimination protections in this Final Rule. An advocacy organization and a State agency commented on the possible linkages between this proposed rule and the Workforce Innovation and Opportunity Act (WIOA). We agree that the two authorities interrelate in important ways to provide broad nondiscrimination protection to apprentices. WIOA encourages the use of registered apprenticeship and the public workforce system provides an opportunity to connect a broad talent pool with the opportunities of apprenticeship, as well as to provide resources and supportive services to assist in connecting individuals to apprenticeship and supporting them through successful completion and career attainment. Section 188 of WIOA also provides comprehensive nondiscrimination protections. The Department will work to ensure that these statutory regimes work in tandem to provide broad and consistent worker protection. Proposed § 30.1(c) also recognized as a defense to a charge of violation of part 30 that a challenged action is required or necessitated by another Federal law or regulation, or that another Federal law or regulation prohibits an action that would otherwise be required by part 30. A national JATC noted that the proposed regulatory text states that “It may be a defense . . .,” and instead recommends that the Department change the word “may” to “shall” in the last sentence of § 30.1(c). The Department respectfully declines to make this change, as whether a defense will succeed is necessarily a fact-specific inquiry which amending the language to “shall” would foreclose. Further, this provision is identical to OFCCP's regulations implementing section 503 of the Rehabilitation Act of 1973 (section 503) and the Vietnam Era Veterans Readjustment Assistance Act of 1974 (VEVRAA) programs, 48 and the consistency among these DOL programs is desirable, especially for those entities that may need to comply with both. 48 See 41 CFR 60-300.1(c)(2) and 60-741.1(c)(3). One specific potential conflict of laws clarification sought by multiple commenters was the interaction of certain obligations under this rule and obligations under the Employee Retirement Income Security Act of 1974 (ERISA). Many apprenticeship programs are employee benefit plans governed by ERISA. Among other things, ERISA provides that, subject to certain exceptions, the assets of an employee benefit plan shall never inure to the benefit of any employer and shall be held for the exclusive purpose of providing benefits to participants and defraying reasonable administrative expenses. In discharging their duties under ERISA, plan fiduciaries must act prudently and solely in the interests of the plan participants and beneficiaries, and in accordance with the documents and instruments governing the plan insofar as they are consistent with the provisions of ERISA. 49 Although apprenticeship plans may differ in structure and operations from other ERISA plans, the plan fiduciaries must still abide by the general fiduciary standards in part 4 of title I of ERISA. The Department's Employee Benefits Security Administration (EBSA) is responsible for interpreting and enforcing the provisions of part 4 of title I of ERISA. 49 29 U.S.C. 1103(c)(1), 1104(a)(1)(A), (B) and (D). Some commenters asserted that using assets of apprenticeship plans to pay for many of the tasks required in the proposed regulations to gain or maintain registered status under the National Apprenticeship Act would not be consistent with obligations imposed on plan fiduciaries under ERISA. These commenters cited guidance EBSA issued in 2012 concerning the use of apprenticeship plan assets for graduation ceremonies and to engage in outreach activities and advertise the program to potential apprentices. 50 The commenters asserted that a plan should have a defense against a violation of the proposed regulations if the apprenticeship plan's governing board or committee determines that it would violate ERISA to expend plan assets to take compliance actions required to gain or maintain registered status. 50 EBSA Field Assistance Bulletin (FAB) 2012-01 (Apr. 2, 2012). EBSA has taken the position that there is a class of activities referred to as “settlor” functions that relate to the formation, design, and termination of plan, rather than the management of the plan, that generally are not activities subject to title I of ERISA. EBSA has concluded that although expenses attendant to settlor activities do not constitute reasonable plan expenses, expenses incurred in connection with the implementation of settlor decisions may constitute reasonable expenses of the plan. 51 A plan sponsor's decision to register an apprenticeship plan under the National Apprenticeship Act is such a settlor decision of plan design. In the Department's view, established ERISA guidance on settlor activities supports the conclusion that reasonable expenses incurred in implementing a decision to be a registered apprenticeship plan would generally be payable by the plan to the extent permitted under the terms of the plan's governing documents. 51 See, e.g., Letter to Carl J. Stoney, Jr. (Advisory Opinion 2001-01A, Jan. 18, 2001). The commenters also expressed concern about the application of ERISA's fiduciary standards because registered status may result in benefits for the apprentice plan's sponsors in addition to the benefits provided to the plan's participants. In Advisory Opinion 2001-01, dealing with the benefits an employer may secure from sponsoring a tax qualified pension plan, EBSA expressed the view that in the case of such a plan design decision that confers benefits on both the plan sponsor and the plan, a plan fiduciary is not required to take into account the benefits conferred on an employer in determining whether expenses for implementing the plan design decision constitute reasonable expenses of the plan. A commenter asserted that ERISA may require plan fiduciaries to withdraw from the Department's registration program if the increased cost to the plan of compliance with the proposed regulations would be greater than the economic benefits to the plan from registered status. The commenter cited guidance issued by EBSA concerning investments selected because of the collateral economic or social benefits they may further in addition to their investment returns to the plan. 52 Registered status is clearly connected to the purpose of an apprenticeship plan and provides a range of direct benefits to the plan and the apprentices participating in the plan. Accordingly, EBSA does not believe its guidance in Interpretive Bulletin 2015-02 applies to the decision of whether to maintain a plan as a registered apprenticeship plan. 52 29 CFR 2509.2015-02 (Interpretive Bulletin 2015-02). ERISA requires that plan fiduciaries act prudently and solely in the interest of the plan's participants in choosing how to comply with the federal regulatory requirements for registered status. Where an apprenticeship program is intended to be registered with the Department, the fiduciaries may treat the reasonable costs of compliance with registration regulations as appropriate means of carrying out the plan's mission of training workers. Some commenters requested clarification of ERISA's impact on the proposal's requirement that a registered apprenticeship plan establish linkage agreements enlisting the assistance and support of pre-apprenticeship programs, community-based organizations, and advocacy organizations in recruiting qualified individuals for apprenticeship, and in developing pre-apprenticeship programs. These commenters noted that participants in pre-apprenticeship programs are not participants in the apprenticeship plan and pointed out that ERISA plan fiduciaries must discharge their duties for the exclusive purpose of providing benefits to the plan participants and defraying reasonable plan administrative expenses. In the Department's view, where plan fiduciaries prudently determine that supporting quality pre-apprenticeship programs and other workforce pipeline resources are necessary to maintain the plan's registration, or are otherwise appropriate and helpful to carrying out the purposes for which the plan is established or maintained, assets of the plan may be used to defray the reasonable expenses of such support. Such advantages could include, among other things, more efficient outreach and recruitment, and broadening the base of qualified and diverse applicants. For more information on what qualifies as a quality pre-apprenticeship program, see OA's Training and Employment Notice 13-12 (TEN 13-12), dated November 30, 2012. Finally, one commenter said it is unclear why these defenses are limited to actions required by another Federal law or regulation, and recommended that these defenses be expanded to include actions required or prohibited by any applicable State law or regulation. This commenter did not specifically identify a provision of State law that would be in conflict with these regulations, and we would decline to introduce any such broad defense contrary to general principles of preemption. Definitions (§ 30.2) With regard to definitions included in the NPRM, we did not receive comments on the definitions for “administrator,” “apprentice,” “apprenticeship program,” “Department,” “EEO,” “electronic media,” “employer,” “genetic information,” “journeyworker,” “major life activities,” “Office of Apprenticeship,” “physical or mental impairments,” “race,” “reasonable accommodation,” and “Registration Agency.” We made no changes to the proposed definitions for these terms. The others for which comments were received are discussed below. “Apprenticeship Committee” This proposed definition comes from part 29, where this term is also used. An SWA suggested that the definition of “apprenticeship committee” should be revised to encompass group sponsor structures as well as individual sponsor structures, and commented that the language throughout the rule is geared towards an individual sponsor structure and not inclusive of group sponsor structures. The Department notes that this definition is identical to the definition contained in part 29. As worded, it is intended to apply to group sponsors as well as individual sponsors. Accordingly, the Final Rule retains the definition as proposed. “Direct Threat” This term was added because the proposed rule included disability among the list of protected bases covered by part 30, and the “direct threat” defense is well-established under the Americans with Disabilities Act (ADA), as amended, and other disability laws. A national JATC expressed concern that the proposed definition would require apprenticeship programs to hire medical professionals to provide “reasonable medical judgement” because this proposed definition states that the process for determining whether an individual poses a direct threat is based on “reasonable medical judgment.” The commenter warned that this would pose a significant financial burden for sponsors, and said that the definition should either be changed or removed. As discussed above, the proposed definition for this term is taken directly from title I of the ADA, as amended, and from the EEOC implementing regulations. The Department intends that this proposed term will have the same meaning as that set forth in the Americans with Disabilities Act Amendments Act of 2008 (ADAAA) and implemented by the EEOC in 29 CFR part 1630. Sponsors and participating employers subject to the ADA, as amended, therefore are already required to comply with this provision under that authority. Any departure would create an unwanted discrepancy between federal disability laws. Further, we note that hiring medical professionals to provide “reasonable medical judgment” is not required by this rule (nor the ADA, as amended). EEOC guidance provides that determining whether a “direct threat” exists is an individual assessment “considering the most current medical knowledge and/or the best available objective evidence .” 53 (Emphasis added.) The Department interprets this rule consistently with that guidance. Even if medical knowledge were used, it often can be obtained from the individual's own physician, rather than an in-house physician hired for such purposes. Accordingly, the Final Rule retains the definition as proposed in the NPRM. 53 EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities, available at https://www.eeoc.gov/policy/docs/psych.html (last accessed May 18, 2016). “Disability” This term was added because the proposed rule included disability among the list of protected bases covered by part 30. One commenter explicitly supported this definition as consistent with other Federal laws, most notably the ADA and ADAAA. One commenter requested clarification of the term “disabled individual,” and suggested that the definition and goals should differentiate between individuals with learning disabilities and other types of disabilities. Another commenter, in asking for clarification about the definition of disability, expressed concern that the construction industry is physically demanding on both body and mind, and that its program asks applicants if they can perform the work required in the industry and if they are physically able regardless of any disabilities. Disability law does not distinguish between “types” of disabilities, but rather whether an individual has, or is regarded as having, an impairment that substantially limits one or more major life activities, or has a record of such impairment. We therefore decline to separate out particular “types” of disabilities for different treatment. With regard to selections in particular industries, again, disability law does not differentiate. It is a well-established tenet of disability law that an individual must be qualified to perform the essential functions of the job, with or without reasonable accommodation, in order to be protected. The proposed definition (as well as the selection provisions in § 30.10 herein) reflects that, and we adopt it as proposed. Regarding the phrase “a record of such an impairment” in the proposed definition of disability, one commenter asked for clarification as to what type of record would be acceptable verification of an individual having a documented disability. Again, this language was intended to mirror identical language in the ADA, etc., and should be interpreted in the same manner as it is in the ADA. Generally, the phrase “record of” does not require a written record, but rather prohibits discrimination against someone because they are known to have had a disability, for instance, a person who has recovered from cancer or mental illness. As discussed above, the proposed definition for this term is taken directly from title I of the ADA, as amended, and from the EEOC implementing regulations. The Department intends that this proposed term will have the same meaning as what was set forth in the ADAAA and implemented by the EEOC in 29 CFR part 1630. “Employer” The NPRM proposed slight modifications to the definition of “employer” in part 30 to conform to the definition of the term in part 29, where this term is also used. We did not intend this alteration to change how the term is interpreted. Two national unions expressed concern that, by adopting the definitions of “sponsor” and “employer” in 29 CFR part 29, the proposed rule would allow for a sponsor to conduct its workforce analyses of the relevant incumbent workforce (required in proposed § 30.5(b)) without accounting for “all occupational titles in its registered apprenticeship program,” should that sponsor include subcontractors or other entities owned or controlled by the sponsor in its apprenticeship program. In this way, they assert that a sponsor could otherwise delegate to an employer its obligations under the rule, thus avoiding enforcement and broad equal employment opportunity for apprentices. It proposed that the Department amend both the definition of “sponsor” and “employer” to include subcontractors and other entities owned and controlled by the sponsor or employer. This latter concern was addressed in the discussion of § 30.1, which clarified that the rule's obligations apply broadly to all sponsors, and will require partnership and information-sharing with employers to effectuate their non-discrimination and affirmative action obligations. The obligations under § 30.5(b) will be discussed in that part of the Section-by-Section analysis. As the revised definition was offered solely to conform with the existing definition of “employer” in part 29, we retain it in the Final Rule as proposed. “Ethnicity” An SWA said that the term “Latino” should be used instead of “Hispanic” because the term “Latino” is broader and includes “Hispanic” groups, but the term “Hispanic” does not include all “Latino” groups. Additionally, the commenter said that “Latino” status should not be limited to “Spanish culture or origin” because some groups do not claim a European cultural or ancestral background, and not all groups speak Spanish as a first language ( e.g., Brazilians). In response to this comment, the Department notes that the proposed definition is the same as that used under the Office of Management and Budget's standards for the classification of Federal data on race and ethnicity, 54 as well as the definition in the EEOC's EEO-1 reporting requirements. For consistency with other Federal data collection requirements, we retain the definition as proposed. 54 Available at http://www.whitehouse.gov/omb/fedreg_1997standards/ (last accessed June 3, 2016). “Pre-Apprenticeship Program” The proposed rule included a definition of “pre-apprenticeship program” because the existing rule refers to such programs, but does not define this term. The proposed definition, drawn from a Training and Employment Notice regarding pre-apprenticeship, 55 was intended to provide clarity on what constituted and/or qualified as a pre-apprenticeship program. It is worth noting that this Final Rule does not specifically require sponsors to develop their own pre-apprenticeship programs, but rather includes requirements that sponsors partner with appropriate entities, such as pre-apprenticeship programs, as part of an outreach and recruitment strategy to address underutilization and impediments to equal employment opportunity. The Department received numerous comments addressing this proposed definition, which were generally supportive, but which suggested improvements. 55 Office of Apprenticeship Training and Employment Notice 13-12 (TEN 13-12), dated November 30, 2012. One commenter expressed concern that the proposed definition of “pre-apprenticeship program” does not capture the full scope and reach of high-quality pre-apprenticeship programs, and suggested that the definition of a pre-apprenticeship program should not be limited to programs that assist individuals in meeting the minimum qualifications for selection into an apprenticeship program, but should be expanded to include programs that provide training and education to individuals who meet the minimum requirements for selection into an apprenticeship program but seek additional training in order to remain competitive with other applicants. While this commenter identifies laudable objectives that many programs may accomplish, the Department's primary focus for pre-apprenticeship programs is to enable participants to obtain minimum requirements for selection into apprenticeship programs to grow opportunities for those individuals. Nothing in the rule prevents sponsors and other entities from designing or linking with additional pre-apprenticeship programs that serve the ends noted by the commenter. The Department is, however, revising the definition to align with TEN 13-12, which addresses pre-apprenticeship programs. Among other things, TEN 13-12 provides that pre-apprenticeship programs maintain a documented partnership with at least one Registered Apprenticeship program, to help ensure that the pre-apprenticeship programs have the relationships in place to support the future success of its participants. Two national unions commented that the Department should also clarify whether Job Corps programs satisfy the definition of pre-apprenticeship. As indicated in the NPRM, many Job Corps programs have been used and can serve as pre-apprenticeship programs. While not all Job Corps programs are pre-apprenticeship programs, those Job Corps programs consistent with the requirements of TEN 13-12—specifically, those focusing on preparing individuals for entrance into and success in a registered apprenticeship program, and which maintain a partnership with a Registered Apprenticeship program—would qualify as a pre-apprenticeship program. A national JATC asked for clarification about the intent of the requirement of collaboration in the definition of “pre-apprenticeship program.” The JATC commented that if the intent is for a minimum of two different types of entities to collaborate on a program, then two employers or a single-employer group or a local union could not operate a pre-apprenticeship program on its own. The JATC suggested that the Department should expressly recognize that a joint-labor management committee is an example of employer and union collaboration, and thus could operate a pre-apprenticeship program. The Department notes that the intent is to link the pre-apprenticeship program with an apprenticeship program. This definition is not intended to require a minimum of two entities given the different ways in which such a link could occur. Several commenters suggested broadly that the proposed definition of “pre-apprenticeship program” should be in alignment with the definition as written in the Department's TEN 13-12. Commenters encouraged the Department to adopt a definition of “pre-apprenticeship program” that includes elements that are essential for successful linkage of a pre-apprenticeship program to an apprenticeship program, and/or are otherwise described in TEN 13-12. The definition for “pre-apprenticeship” in the proposed rule was specifically drafted to be consistent with the TEN 13-12, including with its description of the elements described therein, and the Department does not view any change to the definition to be necessary. Sponsors should follow TEN 13-12 and other relevant guidance in their interpretation of the definition provided in the rule. Numerous commenters recommended that the Department's definition in proposed § 30.2 should otherwise be more expansive in specifically addressing: Barriers unique to women, people of color, and individuals with disabilities; standards for EEO/affirmative action in technical instruction and selection procedures; and the length of tenure or manner of payment expected in pre-apprenticeship programs. Again, while one aim of pre-apprenticeship programs is to reach groups that are traditionally underrepresented in apprenticeships, and the Final Rule includes multiple ways in which that may happen (such as in the discussion of § 30.8), we believe that sort of elaboration is best accomplished in those sections and in guidance such as TEN 13-12, rather than in the definitions section of the regulation. The last sentence of the proposed definition included the optional provision of supportive services, such as transportation, child care, and income support, to assist participants in the successful completion of the pre-apprenticeship program. Several comments underscored the need for resources, including from the Federal government, in order to provide support services. We recognize the resources required to provide such supportive services, which is a primary reason why the provision of such services was not mandated in the definition. The Department has generally expanded the role of apprenticeship and provided opportunities for supportive resources under its WIOA program. Additionally, many other Federal agencies offer some level of support for Registered Apprenticeships. 56 However, because these services are not a mandated part of pre-apprenticeship programs, and because they are not limited to pre-apprenticeship programs but could apply to apprenticeship programs generally, the Final Rule deletes the sentence on supportive services to avoid confusion. 56 Federal Resources Playbook for Registered Apprenticeship, https://www.doleta.gov/oa/federalresources/playbook.pdf. A national JATC recommended that the Department provide guidance that would reduce certain legal risks in operating pre-apprenticeship programs to increase diversity and mitigate claims of reverse discrimination. The JATC suggested that the Department could significantly advance its efforts by providing final regulations that: (1) Permit apprenticeship programs to include in their standards, subject to Department approval, direct interview or direct entry from pre-apprenticeship programs specifically designed for one or more underrepresented groups and not others; (2) ensure that such options, once adopted, would not violate part 30 rights for any other group; and (3) provide that it is the Department's interpretation that such approved methods do not violate title VII or other Federal civil rights laws and have the same level of protection against claims as if required under Federal law. Providing guidance on the legality of direct entry programs necessarily requires fact-specific questions as to how, and in what context, that system is administered. Accordingly, we cannot provide broad guidance on the second and third points above. As to the first, generally speaking, an apprenticeship program may include in its standards, with Departmental approval, a direct entry program targeted toward a specific underrepresented group that is designed to address underutilization. Indeed, such measures are specifically countenanced by § 30.8, referenced below. Beyond that, any such guidance necessarily must proceed on a case-by-case basis. For instance, if a single-employer sponsor draws its apprenticeship pool entirely from a direct entry program that is specifically designed to target one racial minority group, resulting in an apprenticeship pool that consists entirely of members from that group, such a process could result in underutilization of another minority group. Such a program, used in concert with other selection mechanisms resulting in a less homogenous apprenticeship pool, may not. The Department is available to provide guidance, in consultation with its Office of the Solicitor, to sponsors with questions about specific scenarios involving direct entry. Finally, one comment raised the question of further guidance and suggested updating TEN 13-12. One commenter suggested that the Department issue an update to TEN 13-12 that incorporates references to WIOA instead of the Workforce Investment Act of 1998 (WIA), and others suggested that the guidance be updated to link quality pre-apprenticeship programs with industry or sector partnerships as well as apprenticeship-related provisions in WIOA's implementing regulations. The Department updates its guidance periodically with a particular view towards ensuring that references to other complementary legislative schemes are correct, and will do so in this circumstance as well. In conclusion, the definition is retained in the Final Rule as proposed. “Qualified Applicant or Apprentice” The NPRM proposed to add this definition because of the addition of disability to the list of protected bases covered by part 30. The only comments received related to this proposed definition posed questions about how “qualified applicants” related to the requirement in proposed § 30.5(c)(2) that utilization analyses take into account the availability of those who have the “present or potential capacity for apprenticeship.” Neither of these commenters raised issues with the wording of this definition, which is taken directly from title I of the ADA, as amended and from the EEOC implementing regulations. The concerns raised by these commenters are addressed in the analysis of the comments received relating to § 30.5(c). The definition is incorporated into the Final Rule as proposed. “Selection Procedure” The NPRM proposed a definition of “selection procedure” that was consistent with the definition found in the Uniform Guidelines of Employee Selection Procedures (UGESP) at 41 CFR part 60-3, 57 because program sponsors are already required to comply with those regulations under the current part 30 and should be familiar with that definition. Commenters sought a few minor changes to the definition, but the Department declines to accept these changes in order to maintain consistency with the term as used in UGESP, which has applied to sponsors under these regulations for decades. Subsequent sections of this analysis, particularly the discussion of § 30.10, address some of the finer questions commenters raised about selection procedures. If further questions persist after publication of the rule, the Department will certainly consider further guidance on acceptable selection procedures. 57 The intent behind UGESP, originally adopted in 1978 by several Federal agencies, including the Department, was to provide a uniform set of principles on the question of the use of tests and other selection procedures in making employment decisions. This uniform set of principles is designed to assist employers, labor organizations, employment agencies, and others to comply with Federal nondiscrimination requirements. UGESP requires that selection procedures which are found to result in an adverse impact on employment opportunities of members of any race, sex, or ethnic group be validated to show that they are correlated with, representative of, or characteristic of successful performance of the job in question. “Undue Hardship” This proposed definition was added because of the proposed addition of disability to the list of protected bases covered by part 30. The concept of “undue hardship” is a well-established one under the ADA, which provides that employers need not provide certain accommodations if they will cause an undue hardship to the employer. A national JATC suggested that the requirements for documentation of undue hardship should be reduced because they add the possibility of a significant administrative burden on a registered apprenticeship program. As discussed above, the proposed definition for this term is taken directly from title I of the ADA, as amended, and from the EEOC implementing regulations. The Department intends that this proposed term will have the same meaning as what was set forth in the ADAAA and implemented by the EEOC in 29 CFR part 1630. For the sake of consistency, the Department has determined that the requirements should remain the same. An SWA requested clarification on the specific formula and threshold a sponsor would need to reach to meet the eligibility requirements for undue hardship. The EEOC has published guidance discussing in detail the various factors that should be considered in making an “undue hardship” determination, 58 but these factors focus broadly on the cost of the accommodation weighed against the financial resources of the employer, and thus are necessarily fact-specific. If sponsors have questions about undue hardship in particular circumstances, the Department can provide technical assistance. 58 See EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, available at https://www.eeoc.gov/policy/docs/accommodation.html#undue (last accessed May 5, 2016). Beyond these definitions proposed in the regulations, several commenters proposed additional definitions that should be included in the regulations. These are discussed in turn below. “Industry” and “Relevant Labor Pools” A JATC expressed concern that the proposed rule did not provide a definition of the term “industry,” and urged the Department to define the term (as used in proposed § 30.5(b)) more narrowly to avoid comparisons of occupations that require different levels of skill, education, and technical expertise. The commenter also asked the Department to define the term “relevant labor pools” (in proposed § 30.4(a)(2)) to clarify the relationship between the relevant recruitment area and the relevant labor pools. These terms are further discussed in the relevant sections specified above, and so we decline to define the term here. We note that the use of “industry” as the grouping for analyses under the proposed § 30.5 was not carried over into the Final Rule, and thus there is no need to define it. “Self-Identification as an Individual With a Disability” Another national JATC recommended that the Department add language to § 30.2 that defines the phrase “self-identification as an individual with a disability,” which is used in proposed § 30.11. The Department declines to define this compound phrase, the meaning of which can be understood in the context of proposed § 30.11. “Sex” Many advocacy groups, a professional association, and a national union, urged the Department to include a definit [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2016-29910. Public record. Not legal advice.