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DOL’s Proposed Regulations Expand Diversity Protections in Apprenticeship Programs

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Employers and other sponsors of apprenticeship programs take notice. Today, the U.S. Department of Labor (DOL) issued a Notice of Proposed Rulemaking (NPRM) intended to expand and update regulations concerning the National Apprenticeship Act of 1937. Among other things, these proposed regulations would add age (40 or older), genetic information, sexual orientation, and disability to the list of classifications protected under the statute and strengthen related affirmative action requirements.

Initially passed in 1937 as depression-era legislation, the National Apprenticeship Act authorizes the DOL to formulate and enforce labor standards necessary to safeguard the welfare of individuals participating in certain registered apprenticeship programs. A registered apprenticeship is a combination of on-the-job training and related technical instruction in which workers learn the practical and theoretical aspects of a highly-skilled occupation. Apprenticeship programs are sponsored voluntarily by individual employers, employer associations, or Joint Apprenticeship Training Committees that partner organized labor with employers.

According to the DOL, currently there are more than 19,000 program sponsors representing over 200,000 employers who are offering registered apprenticeship training to more than 375,000 registered apprentices.  Registered apprenticeship programs appear in traditional industries, such as construction and manufacturing, as well as in new emerging “high-growth” industries, such as health care, information technology and energy.

In 1963, President Kennedy directed the Secretary of Labor to implement regulations requiring apprenticeship sponsors to make admission decisions for apprenticeship programs on a completely nondiscriminatory basis. At the time, the regulations prohibited discrimination based on race, color, religion, and national origin. In 1971, coverage on the basis of sex was added. Additionally, the DOL required sponsors with five or more apprentices to develop and implement written affirmative action plans.

Today’s proposed regulations would expand the number of protected classifications to prohibit discrimination based on age, disability, genetic information, and sexual orientation. Likewise, the DOL has explained that prohibited sex discrimination would be interpreted to include prohibitions against discrimination based on gender identity or transgender status. Further, the proposed rules would expand a sponsor’s affirmative-action obligations detailing specific mandatory actions a sponsor must take to satisfy its affirmative action requirements, including mandating certain actions that are merely suggested in the existing regulations. Sponsors would also be required to include individuals with disabilities in their affirmative action plans.

These proposed regulations not only would harmonize the protections afforded to apprentices with those currently provided under other federal employment laws, but they also expand protections to the LGBT community. The proposed changes also underscore the authority administrative agencies, like the DOL, have to revise and broaden an employer’s legal obligations.

Employers, industry associations, or other groups currently sponsoring apprenticeship programs, or anyone contemplating the sponsorship of an apprenticeship program, should pay close attention to these proposed regulations. Indeed, the DOL has proposed numerous regulatory changes in recent months, including, without limitation, significant changes to the FLSA’s white-collar exemptions. Because of these and other unsettled issues affecting business operations, employers should pay careful attention to their evolving legal obligations.    

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