LAB-04-09-00003-E Enhanced Administration of the State's Apprenticeship Training Program and Enhanced Program Sponsor Accountability

1/28/09 N.Y. St. Reg. LAB-04-09-00003-E

NEW YORK STATE REGISTER

VOLUME XXXI, ISSUE 4

January 28, 2009

RULE MAKING ACTIVITIES

DEPARTMENT OF LABOR

EMERGENCY RULE MAKING

 

I.D No. LAB-04-09-00003-E

Filing No. 48

Filing Date. Jan. 12, 2009

Effective Date. Jan. 12, 2009

Enhanced Administration of the State's Apprenticeship Training Program and Enhanced Program Sponsor Accountability

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:

Action taken:

Addition of sections 601.4 and 601.5 to Title 12 NYCRR.

Statutory authority:

Labor Law, section 811; Federal regulations found at 29 CFR 29

Finding of necessity for emergency rule:

Preservation of general welfare.

Specific reasons underlying the finding of necessity:

The Rule enhances consistency in administration of the State’s Apprenticeship Training Program, stakeholder participation in program approval, and program sponsor accountability that will ensure a well-trained workforce for the state’s future.

Subject:

Enhanced administration of the state's apprenticeship training program and enhanced program sponsor accountability.

Purpose:

To strengthen the Apprenticeship Training Program in New York and ensure a well-trained, skilled workforce for the future.

Text of emergency rule:

Section 601.4 of the regulations of the Commissioner of Labor is amended by adding a new sub-section (i) as follows:

(i) A written public comment period is required for all new trades and apprenticeship program applications. A list of all new trades and new apprenticeship program applications will be placed on the New York State Department of Labor website for a minimum period of ten business days to solicit public comments. Those individuals who submit comments will be asked to provide their name, title, organizational name and their comments via mail or e-mail. Comments received will be reviewed by the Apprenticeship Training Program Director, and action will be taken, as deemed appropriate.

Section 601.5 of the regulations of the Commissioner of Labor is amended by adding new sub-sections (d), (e), (f), and (g), as follows:

(d) All sponsors of apprenticeship training programs, and their signatories - if any, are required to ensure that their apprentices maintain records that document job rotation and the skills acquired. The apprentice must maintain this record in a format approved by the New York State Department of Labor. The apprentice's immediate supervisor is required to sign off on this record at least monthly.

(e) Newly approved sponsors seeking registration of new apprenticeship programs must undergo a two year probationary period. Newly approved sponsors will be advised that their programs will be approved contingent upon successful completion of the probationary period.

(1) Factors considered during the probationary period include, but are not limited to:

(i) Payment of wages as specified in the apprenticeship agreement;

(ii) documentation of job rotation;

(iii) documentation of participation in related instruction;

(iv) provision of proper supervision;

(v) provision of a safe work environment; and

(vi) compliance with the provisions of Labor Law, Article 23 and 12 NYCRR Parts 600 and 601.

(2) After a review of the new sponsor's performance during the probationary period, the sponsor will be notified whether they:

(i) passed probation; or

(ii) will be placed on an extended probation for a period of no more than one year, informed of the reasons why this decision was made, and issued a corrective action plan; or

(iii) failed probation and the reasons why.

(f) New sponsors who fail probation will not be permitted to reapply for registration of an apprenticeship program for a period of one year. This prohibition additionally applies to any successor or substantially owned-affiliated entity, as those terms are defined in Labor Law, Section 220, of the new sponsor. The new sponsor may file a written appeal to the decision by sending a letter to the Commissioner of Labor putting forth its arguments why the sponsor candidate should not have failed probation.

(g) All Apprentice Training Program sponsors will undergo a recertification process for each program at three year intervals. Commencing with enactment of these regulations, for the first three years, these recertifications shall be performed on a basis of older programs, by region, being recertified first.

(1) Each sponsor shall complete a new Apprenticeship Training Program Registration Agreement for each of their programs.

(i) Simultaneously, any sponsors of Group Joint or Group Non-Joint programs must submit a current list of program signatories' names, addresses, Federal Employer Identification Numbers, and Unemployment Insurance Employer Numbers in an electronic format as specified by the Department of Labor.

(ii) The Sponsor shall also collect completed and signed Due Diligence forms from each signatory, provide any such forms with affirmative answers to the Department of Labor with its new Apprenticeship Training Program Registration Agreement, and maintain the rest of the applications in its office for ongoing review and inspection by the Department.

(iii) The program sponsor must provide assurances in writing to the New York State Department of Labor that the sponsor will hold all signatories to the standards of their Apprentice Training Program Registration Agreement with the New York State Department of Labor.

(2) After a review of the sponsor's performance during the period prior to recertification, the sponsor will receive notification that:

(i) Its Apprenticeship Training Program has been renewed; or

(ii) It was found to have committed the violations specified, and is to be issued a corrective action plan; formal deregistration will be pursued only if NO corrective action has been taken by the sponsor within a reasonable period of time to resolve all issues,; or

(iii) Its Training Program has been recommended for deregistration and deregistration proceedings will be initiated.

This notice is intended

to serve only as a notice of emergency adoption. This agency intends to adopt this emergency rule as a permanent rule and will publish a notice of proposed rule making in the State Register at some future date. The emergency rule will expire April 11, 2009.

Text of rule and any required statements and analyses may be obtained from:

Maria Colavito, New York State Department of Labor, Room 508, Building 12, State Office Campus, Albany, NY 12240, [phone], email: [e-mail]

Regulatory Impact Statement

1. Statutory authority:

Labor Law § 811.1 (j) states that the Commissioner of Labor shall have the power to adopt such rules and regulations as may be necessary for the effective administration of the purposes and provisions of Article 23. In addition, the emergency regulations are promulgated under authority granted to the Department under federal regulations found at 29 CFR 29.

2. Legislative objectives:

Labor Law Article 23, § 810 makes it the public policy of the State of New York to develop sound apprenticeship training standards and to encourage industry and labor to institute apprenticeship programs as a preferred method of training and preparing workers in New York. These amendments fulfill these legislative objectives and strengthen the Apprenticeship Training program in New York by increasing public participation in the apprenticeship process, reinforcing the need to memorialize skill attainment by apprentices, and reaffirming the accountability of program sponsors for their signatories and apprentices.

3. Needs and benefits:

During the past year, the Commissioner of Labor placed a moratorium on the approval of apprenticeship training programs in all trades while a thorough review of the State's Apprenticeship Training Program was conducted. Two independent reviews were conducted, an internal review - the Process Mapping Report - and an External Review conducted by Coffey Consultant's. These reviews sought input from various stakeholders and partners as well as Apprenticeship Training Program staff. Both the internal and external reviews echoed common themes and consistent recommendations to ensure the development of a world class workforce. Those themes included the need for greater stakeholder involvement in the registration process, increased consistency in program implementation, and increased accountability by program sponsors in ensuring the quality and effectiveness of apprenticeship programs. A number of significant recommendations which surfaced from the internal and external reviews are reflected in these regulatory amendments.

The public comment period for all new program applications affords an opportunity for stakeholders to provide comments on all new programs and new trades initiated in New York State. The requirement for use of Blue Books or other form of documentation of job rotation ensures that apprentices are being rotated to all aspects of their work process resulting in a skilled workforce with portable credentials. Sponsor responsibility for monitoring program signatories and their compliance with apprenticeship training requirements shores up program oversight and accountability. Finally, the program recertification process allows sponsors an opportunity to ensure the Department has current and accurate information on their programs and signatories and ensures periodic monitoring of all apprenticeship programs on a regular basis.

4. Costs:

The implementation of these regulations will result in the need for the apprentice's on-the-job supervisor to sign the apprentice's Blue Book, or other form of documentation of job rotation approved by the Department. It will also require that new sponsors go through a two-year probation period before being certified. Further, the rules call for triennial sponsor recertification, the reporting and monitoring of employer-members and employer-signatories by program sponsors, and, if needed, the preparation and implementation of corrective action plans for sponsors who fail to measure up to program standards. The amount of time and resources needed will be contingent upon the size of the program and the complexity of the corrective action issues.

It is anticipated that the implementation of the regulations will impact Apprenticeship Training Office staff. The caseloads for field staff will be adjusted accordingly to accommodate for these needs; however, additional staff will be required in central office to process the documents for program probation and recertification, for tracking of signatory information, as well as handling the correspondence regarding public comments on new trades and program applications.

5. Local government mandates:

Municipalities, school districts, fire districts and others who currently, or plan to, serve as program sponsors for apprenticeship training programs will have to comply with the new requirements that will apply to any new programs proposed by them including public notice of program applications. All apprenticeship programs in which these entities participate will be subject to ensuring that current and accurate information is held on program signatories. The Department will be responsible for monitoring the signatories on a random sample basis. However, these requirements apply only to local governments that choose to serve as program sponsors for apprenticeship programs. Moreover, the amendments will benefit such local governments by ensuring consistency and accountability among program sponsors and will assist local governments that have enacted local laws requiring public work contractors to participate in state registered apprenticeship training programs by helping to ensure the quality of such programs.

Apprenticeship Training Program staff will be available to provide technical assistance to program sponsors - including local governments choosing to undertake this role - to assist them in complying with the rule.

6. Paperwork:

Apprenticeship programs traditionally require apprentices and their supervisors to track apprentices' progress through various job rotations included in their overall training program. While "blue books" have traditionally been used for this purpose, the proposed rule allows for flexibility in this regard by providing for skills attainment to be tracked in some other format approved by the Department.

Additional paperwork that will be required from regulated parties as a result of these rule changes include corrective action plans for program sponsors who fail to comply with program requirements and triennial recertification applications.

At the same time, the Department will have to develop and complete a number of new documents including form letters to address probationary and recertification determinations, form letters to acknowledge receipt of public written comments, as well as revisions to the Apprentice Training Program Registration Agreement.

The database currently used by the Apprenticeship Training Program will also need to be revised to track probationary and recertification periods and program signatories' information.

7. Duplication:

No duplication of rules were identified. Rather, these regulations are intended to clarify existing regulations found in 12 NYCRR § 601.4 Standards for Apprenticeship Programs and 12 NYCRR § 601.5 Standards for Apprenticeship Agreements.

8. Alternatives:

Overall there are no viable alternatives to the requirements set forth in the proposed rule. The rule reinforces basic requirements for program registration, monitoring, and accountability recommended by consultants and various stakeholders folding a long and detailed review of the state's administration of its apprenticeship training program.

9. Federal standards:

United States Department of Labor's proposed rule changes to 29 CFR 29 published in the Federal Register on December 13, 2007, contains a requirement for provisional registration, including a one year provisional approval of newly registered programs after which program approval may be permanent, continued as provisional, or rescinded following a review by the registration agency. New York State's proposed emergency regulation for a probationary period for all new programs mirrors the proposed federal requirement except that the probation period extends for two years. It is believed that this enhanced requirement will result in higher standards for New York's Apprenticeship Training program by offering sponsors additional time to fully develop quality programs, while at the same time, affording the Department an opportunity to assess the success of the program based upon a more representative operating history.

10. Compliance schedule:

The two-year probationary requirement will become effective for new sponsor program applications approved on or after the effective date of these regulations.

The three-year recertification period will be implemented in each geographic region of the state on an incremental scale determined by the age of the program so that one third of the programs within a region - starting with the oldest programs - will be due for recertification each year, commencing on or after the effective date of these regulations.

The establishment of a written public comment period for new trades and program applications will be implemented on or after the effective date of these regulations.

New sponsor mandates with regard to ensuring that current and accurate information is held on their employer signatories will be implemented on or after the effective date of these regulations.

Provisions set forth in the rule clarifying job rotation requirements and acceptable documentation will be effective on or after the effective date of these regulations.

Regulatory Flexibility Analysis

1. Effect of rule:

Apprenticeship Training Programs include building and construction trades, manufacturing trades, state governments (Division of Correctional Services), local governments (such as villages, school districts, and fire districts), as well as other non-traditional trades (such as chef).

There are four types of Apprenticeship Training programs in the state, as follows:

• Individual Non-Joint: --- Involves a non-union employer and one or more apprentices or an employer with a union that does not wish to participate in the apprenticeship program. (584 Programs)

• Individual Joint: --- Involves a single employer and the union representing the employer's apprentices. (70 Programs)

• Group Joint: --- Involves a group of employers and one union, which represents the workers of the trade. (194 Programs)

• Group Non-Joint: --- Involves a group of non-union employers or an employer trade association whose members agree to apprenticeship standards among themselves or which contracts with a service provider to administer the apprenticeship program and to provide related instruction classes for the apprentices. (27 Programs)

Please note the data listed above reflects the number of programs in each category, not individual sponsors. One sponsor may operate multiple programs.

2. Compliance requirements:

Participation in apprenticeship training programs is completely voluntary. Small businesses and local government sponsors who choose to participate in such programs may be required to undertake additional record keeping activities associated with tracking the apprentice's progress through various job rotations, if they were not complying with this requirement previous to the implementation of this rule. Such record keeping may be accomplished through use of a "Blue Book" or, under the proposed rule, some other format approved by the Commissioner. Small businesses and local governments sponsoring apprenticeship training programs will also be responsible for the preparation and implementation of a corrective action plan, if needed, to bring their program into compliance with statutory and regulatory requirements governing apprenticeship programs; completion of paperwork for triennial recertification; and obtaining and tracking of signatory information. The amount of time needed for all these activities is contingent upon the size of the program and the degree to which these programs are already in compliance with requirements of the current regulations governing the program.

3. Professional services:

The adoption of these emergency regulations is not expected to place an undo burden on program sponsors that would require them to retain professional services.

4. Compliance costs:

The adoption of these emergency regulations is not expected to place an undo burden on program sponsors with regard to cost. For example, the completion of blue books or an alternative method of documentation of job rotation is done by the apprentice's supervisor. All Apprentice Training Program Registration Agreements provide for a specified ratio of apprentices to journey workers (supervisors). Therefore, a supervisor will be responsible for a limited number of apprentices and their Blue Books.

The implementation of these regulations will result in the need for program sponsors to sign the apprentice's Blue Book, or other form of documentation of job rotation, and the preparation and implementation of the completion of a corrective action plan, if needed, completion of paperwork for recertification, and the tracking of signatory information. The amount of time needed is contingent upon the size of the program and the complexity of the corrective action issues.

5. Economic and technological feasibility:

The adoption of these emergency regulations is not expected to place an undo burden on program sponsors. Wherever possible, the Department will utilize technology to make filing of documents with the Department easier. For example, the department encourages sponsors to submit lists of apprenticeship program signatories in an electronic format. Also, public comments on new program applications and new trades will be accepted via an electronic format.

6. Minimizing adverse impact:

For the new regulation regarding sponsors' responsibilities to monitor employer signatories it is presumed that sponsors who conduct Group Joint or Group Non-Joint programs currently maintain a list of program signatories in their normal course of business.

For the new regulation regarding job rotation requirements and acceptable documentation, this change will allow a stricter enforcement of current procedures. Program sponsors should be tracking job rotation at the present time, however, this regulation will provide a more consistent application of this requirement.

While the Department believes that the possibility of adverse impact of the emergency rule should be minimal, the Department will provide apprenticeship program sponsors with reasonable periods of time in which to bring non-compliant programs into compliance with all regulatory requirements, will provide technical assistance to program sponsors, and will provide adjudicatory hearings to program sponsors to challenge any proposed adverse action by the Department. These activities all serve to minimize any adverse impact from the rule.

7. Small business and local government participation:

During the past year, New York State placed a moratorium on the approval of apprenticeship training programs in all trades while a thorough review of the program was conducted. Two independent reviews were conductedwhich seeking input from various stakeholders and partners as well as Apprenticeship Training Program staff. Small businesses and local governments were given an opportunity to participate in these reviews by responding to questions asked by parties conducting the reviews. The final written Reports authored by Coffey Consulting, LLC., and NYSDOL were posted for public review on NYSDOL's website and seven public forums were held throughout the state in August and September 2008, offering the public, including small businesses and local governments, an opportunity to provide their comments on the reports. All feedback received as a result of these activities was reviewed and considered and a number of recommendations received from stakeholders, interested parties, and the consultants are reflected in this rulemaking.

Rural Area Flexibility Analysis

1. Types and estimated numbers of rural areas:

Apprenticeship training programs may be sponsored by a single employer, a group of employers, or a joint apprenticeship committee representing both employers and a union. These sponsors may be located throughout New York State, including all rural areas of the State.

2. Reporting, recordkeeping and other compliance requirements; and professional services:

All Apprenticeship Training Program Sponsors in rural areas who conduct Group Joint or Group Non-Joint programs must provide a list of all employer signatories to NYSDOL and will be required to hold all signatories to the standards of their Apprentice Training Program Registration Agreement with NYSDOL.

All program sponsors in rural areas will be required to ensure their apprentices are regularly keeping "Blue Books" or a comparable record to ensure documentation of job rotation and the attainment of skills.

All program sponsors in rural areas will be required to apply for recertification of programs every three years and to undergo a program review at that time. Deficiencies in program administration or operation identified during the review will have to be corrected.

All applications for new apprenticeship training programs by sponsors in rural areas will be subject to publication and public comments. Sponsors may be required to respond to inquiries from Apprenticeship Training Program staff in response to comments received from the public.

3. Costs:

The adoption of these emergency regulations is not expected to place an undue burden on program sponsors located in rural areas as opposed to program sponsors in other geographic areas of the state. The implementation of these regulations will result in the need for the apprentice's on-the-job supervisor to sign the apprentice's Blue Book or other form of documentation of job rotation approved by the Department. It will also require that new sponsors go through a two-year probation period before being certified. Further, the rules call for triennial sponsor recertification, that sponsors insure current and accurate information is held on program signatories, and, if needed, the preparation and implementation of corrective action plans for sponsors who fail to measure up to program standards. The amount of time and resources needed will be contingent upon the size of the program and the complexity of the corrective action issues. New York State Department of Labor Staff is available to assist in addressing any corrective action issues. It is not anticipated that the rule would require the programs to hire professional staff or consultants to undertake any of these tasks.

4. Minimizing adverse impact:

It is presumed that sponsors located in rural areas who conduct Group Joint or Group Non-Joint programs currently maintain a list of program signatories in their normal course of business. Therefore, the emergency rule should not have an adverse impact from any sponsors in this regard.

The documentation of job rotation requirements for sponsors is currently enacted by procedure. Program sponsors located in rural areas should be tracking job rotation at the present time and the impact from the emergency rule should be minimal.

The Department's Apprenticeship Training Program staff is available to provide technical assistance to program sponsors located in rural areas as well as other areas of the state. Moreover, the Department will provide apprenticeship program sponsors with reasonable periods of time in which to bring non-compliant programs into compliance with all regulatory requirements and will provide adjudicatory hearings to program sponsors to challenge any proposed adverse action by the Department. These activities all serve to minimize any adverse impact from the rule.

5. Rural area participation:

During the past year, New York State placed a moratorium on the approval of apprenticeship training programs in all trades while a thorough review of the program was conducted. Two independent reviews were conducted seeking input from various stakeholders and partners as well as Apprenticeship Training Program staff. Sponsors in rural areas were given an opportunity to participate in these reviews by responding to questions asked by parties conducting the reviews. The final written Reports authored by Coffey Consulting, LLC. and NYSDOL were posted for public review on NYSDOL's website and seven public forums were held throughout the state in August and September 2008, offering the public, including sponsors in rural areas, an opportunity to provide their comments on the reports. All feedback received as a result of these activities was reviewed and considered and a number of recommendations received from stakeholders, interested parties, and the consultants are reflected in this rulemaking.

Job Impact Statement

1. Nature of impact:

If a sponsor fails to comply with the requirements of the emergency regulations and a program is ultimately deregistered or not recertified, this would have an impact on an apprentice's status as a registered apprentice and thus affect his or her ability to obtain a portable nationally recognized credential of skills standards. The loss of this credential may have a long term impact on the apprentice's earning potential.

The Department does not anticipate that the proposed rule will impact many jobs as we do not believe it will be necessary to either deregister or refuse to recertify a large number of programs. It is expected that the vast majority of programs would comply with all requirements of the rule. Moreover, except under extreme circumstances, non-compliant program sponsors will be given opportunities to come into compliance before any steps would be taken to terminate a program.

2. Categories and numbers affected:

The Apprenticeship Training Program currently contains 521 construction trades programs and 354 non-construction trades programs, with over 20,000 registered apprentices.

3. Regions of adverse impact:

These emergency regulations impact all program sponsors in New York State regardless of the geographic location of the apprenticeship program.

4. Minimizing adverse impact:

While the Department believes that the possibility of adverse impact of the emergency rule on job holders is going to be negligible, the Department will provide apprenticeship program sponsors with reasonable periods of time in which to bring non-compliant programs into compliance with all regulatory requirements, will provide technical assistance to program sponsors, and will provide adjudicatory hearings to program sponsors to challenge any proposed adverse action by the Department. These activities all serve to minimize any adverse impact from the rule.

5. (IF APPLICABLE) Self-employment opportunities:

N/A