Grant Collins
On January 17, the Department of Labor (DOL) published a rule proposing a major overhaul to the regulations governing Registered Apprenticeship Programs (also called “Registered Programs” or “RAPs”). RAPs are apprenticeship programs that have been approved by the DOL or a State Apprenticeship Agency. Overall, the changes are a win for RAPs, including those sponsored by SMACNA contractors and their SMART labor partners.
Nevertheless, some of the proposed changes present challenges unique to our industry. Thus, SMACNA’s government relations and labor relations teams are drafting comments in response in hopes of minimizing any adverse impacts to our long-standing and highly successful RAPs.
The Proposed Rule
The Proposed Rule represents a substantial overhaul of the National Apprenticeship System. The proposed changes are broad, but several key changes are outlined below, including a minimum hourly requirement for classroom and on-the-job training, new mandates for apprenticeship agreements and a new category of apprenticeship called Career & Technical Education (CTE) Apprenticeship.
Minimum Hourly Requirement for Classroom and On-the-Job Training
The Proposed Rule would require registered apprenticeship programs to adopt a time-based model for completion of the classroom portion and on-the-job training portion of the program. The Proposed Rule would require programs to mandate that each apprentice receive at least 144 hours of classroom instruction for every 2,000 hours of on-the-job training. Thus, for example, a program requiring 4,000 hours of on-the-job training would need to provide a minimum of 288 hours of classroom instruction.
Under the current rule, programs can determine an apprentice’s completion of the program based on one of the following methods: (1) their competency or mastery of the skills without an explicit time requirement; (2) the hours they spent training; or (3) a combination of both hours and skills achievement.
The DOL invited comments regarding whether the proposed 144-hour minimum durational requirement for related instruction is sufficient or whether it should be raised to a higher amount. The DOL noted that other countries require apprentices to spend at least 30% of their paid time in classroom instruction.
New Mandates for Apprenticeship Agreements
The Proposed Rule would mandate that each apprentice review and sign an apprenticeship agreement containing required terms and conditions of the apprenticeship program prior to the start of the apprenticeship term. The agreement would need to be signed by the apprentice (and, if under age 18, the apprentice’s guardian), the program sponsor and any participating employers.
The Proposed Rule mandates the apprenticeship agreement address its terms and conditions, including:
- A description of the respective roles, duties and responsibilities of the apprentice: the program sponsor and the participating employer.
- The term of the registered apprenticeship program, including the beginning date and expected duration of the registered apprenticeship program, the beginning date of the on-the-job training and the duration of the probationary period for the apprenticeship program.
- A detailed statement of the entry wage, subsequent graduated scale of increasing wages to be paid to the apprentice over the term of the apprenticeship, the journeyworker wage and any fringe benefits.
- A disclosure of the expected minimum number of hours that are allocated by the program to the on-the-job training component.
- A description of the methods used during the apprenticeship to measure progress on competency attainment and the program’s end-point assessment.
- A description of any supportive services that may be available to the apprentice including childcare, transportation, equipment, tools or any other support.
- Any unreimbursed costs, expenses or fees that the apprentice may incur during their RAP participation.
- A description of any recognized postsecondary credits, credentials and occupational qualifications that the apprentice will receive or be eligible to receive upon successful program completion.
The Proposed Rule also prohibits a “non-compete provision restricting the apprentice’s ability to compete directly with the program sponsor or participating employer or to seek or accept employment with another employer prior to the completion of the RAP.”
The Proposed Rule also prohibits including a “non-disclosure provision that prevents the worker from working in the same field after the conclusion of the worker’s employment with the employer.”
Under the Proposed Rule, after the probationary period of the apprenticeship concludes, the agreement may be cancelled by the apprentice “at any time” or by the “program sponsor only for good cause.”
CTE Apprentices
The Proposed Rule would create a new model of registered apprenticeship called CTE Apprenticeship, which is designed to align with secondary and postsecondary State-approved CTE programs.
Unlike a RAP, a Registered CTE Apprenticeship would require a minimum of 540 hours of CTE apprenticeship-related instruction, including not less than 12 postsecondary credit hours, and a minimum of 900 hours of on-the-job training. This would compare to 144 hours of classroom instruction per 2,000 hours of on-the-job training for a registered apprentice under the Proposed Rule.
Like registered apprentices, CTE apprentices need to be paid on a progressive wage scale that is consistent with the industry skills and competencies required.
An apprentice who completes a CTE apprenticeship would receive a certificate of completion from either the DOL’s Office of Apprenticeship or a State Apprenticeship Agency. However, CTE apprenticeships would not receive journeyworker cards or a designation similar to one received by an apprentice in a RAP.
Bottom Line
Recent legislation, including the Inflation Reduction Act of 2022, the Bipartisan Infrastructure Law, and the CHIPS and Science Acts, has tied tax credits and prioritized applications of employers using apprentices in RAPs. Thus, it is critical that any changes to the National Apprenticeship System continue to advance the interests of the RAPs sponsored by SMACNA contractors and their SMART union labor partners.
While the Proposed Rule changes are, in large part, beneficial, SMACNA’s government relations and labor relations teams will be submitting comments to minimize any potential negative impact on our long-standing and successful apprenticeship programs.
Grant Collins is an MSBA-certified specialist in both traditional labor law and employment law at Felhaber Larson. Reach him at gcollins@felhaber.com or through www.felhaber.com.
