Affirmative Action Program Requirements
What is an Affirmative Action Program (AAP)?
An AAP is a tool designed to assist a sponsor in detecting, diagnosing, and correcting any barriers to equal opportunity that may exist in its apprenticeship program. An AAP is designed to ensure equal opportunity and prevent discrimination in apprenticeship programs and is more than mere passive nondiscrimination. Such a program requires the sponsor to take affirmative steps to encourage and promote equal opportunity, to create an environment free from discrimination, and to address any barriers to equal opportunity in apprenticeship. An AAP helps the sponsor identify and correct underutilization and helps the sponsor establish procedures to monitor and examine its employment practices and decisions with respect to apprenticeship. As part of an AAP, sponsors must create and maintain a written document memorializing and discussing the contents of the program.
Are AAPs a new requirement?
No. Sponsors were required to maintain AAPs under the previous regulations. While we have updated the requirements and added AAP obligations for individuals with disabilities in this final rule, the analyses required are very similar to those analyses required under the previous rule with regards to race, sex, and ethnicity, and, in many cases, are more streamlined and easier for sponsors to conduct.
Which sponsors are required to have an AAP?
All sponsors who are not otherwise exempted have long been required to develop and maintain an affirmative action program. As under the previous rule, each sponsor must develop its own AAP, even if employers participating in the sponsor's program maintain their own AAPs.
The final rule provides two exemptions from the requirement to establish and maintain an AAP: (1) programs with fewer than five apprentices; and (2) programs subject to approved equal employment opportunity programs (§30.4[d]).
A sponsor that already maintains an EEO program providing for affirmative action in apprenticeship, including the use of goals for any under-represented group or groups of individuals, that has been approved as meeting the requirements of title VII of the Civil Rights Act of 1964 or Executive Order 11246 and section 503 of the Rehabilitation Act (which apply to Federal contractors), does not need to create a separate AAP for its apprenticeship program so long as that equal employment opportunity program: 1) extends to apprentices; and 2) covers individuals with disabilities. Additionally, programs will qualify for this exception only if the goals for any under-represented group are likely to be equal to or greater than the goals required under the final rule.
These exemptions are the same as those that were contained in the prior regulations and only exempt sponsors from the requirement to maintain an AAP; sponsors are still required to comply with the other obligations created by the final rule, including the Equal Opportunity Standards applicable to all sponsors, contained in §30.3.
What needs to be in a sponsor's written Affirmative Action Plan?
The written Affirmative Action Plan must include the following components:
- Utilization analysis for race, sex, and ethnicity (comparing the workforce and availability analyses)
- Utilization goals for race, sex, and ethnicity (if necessary)
- Utilization goals for individuals with disabilities
- Targeted outreach, recruitment, and retention activities (if necessary)
- Review of personnel processes
- Invitations to self-identify as an individual with a disability
Each of these components requires the sponsor to examine different elements of its apprentice workforce and document its review. At various stages of its review, a sponsor will have to analyze its utilization, recruitment activities, and selection, training, and assignment practices in order to determine whether any element of its program is adversely impacting individuals within certain groups. OA will be providing a model written Affirmative Action Plan that sponsors can review and use to ensure that their own plans contain all necessary elements.
My program already complies with EEOC and OFCCP requirements and state laws on discrimination. Is there more I need to do to comply with these regulations?
Yes. All registered apprenticeship programs need to take some additional steps that are not required by EEOC and OFCCP. These include:
- Clearly stating that discrimination is prohibited in recruiting, hiring, training, assigning, evaluating, promoting, disciplining, rewarding or terminating employees, including apprentices, on any of the following bases: race, color, religion, sex (including pregnancy and gender identity), national origin, age (40 and older), sexual orientation, disability and genetic information.
- Posting their equal opportunity pledge, assigning an individual to coordinate EEO, maintaining an outreach and recruitment list, and providing anti-harassment training to all individuals associated with the apprenticeship program, including all apprentices and journeyworkers who regularly work with apprentices.
In addition, OA's apprenticeship EEO regulations require sponsors with five or more apprentices to create and maintain an affirmative action program, including a written affirmative action plan (§30.4). Sponsors are exempt from this requirement if they can demonstrate that they have a compliant affirmative action plan covering apprentices, including the use of goals for underrepresented groups, under either: (a) Executive Order 11246 and section 503 of the Rehabilitation Act; or (b) title VII of the Civil Rights Act of 1964, if the sponsor extends the affirmative action plan to include individuals with disabilities.
Do sponsors need to send their AAPs to the Registration Agency every time they update it?
No. Each sponsor simply needs to maintain an up-to-date AAP and make that AAP available to the Registration Agency upon request, including during its compliance review.
Where the sponsor is a community college or business association, and each participating employer with which it places apprentices has fewer than five apprentices, is the sponsor required to have an AAP for the apprenticeship program?
The exemption is based on the number of apprentices per sponsor -- not per employer. Thus, if the number of apprentices in the sponsor's program is five or more, the sponsor is required to maintain an AAP.
When do the AAPs as required in the revised regulations need to be in place?
The Department wants to ensure sponsors have time to understand their obligations under the revised rule and prepare accordingly, so initial AAPs under the revised regulations do not need to be in place until January 18, 2019 for sponsors that registered with OA prior to January 18, 2017.
For sponsors that registered with OA after January 18, 2017, the deadline for putting their new initial AAPs in place is two years after their registration date. This includes sponsors that have yet to register: every sponsor gets two years from registration before they need to complete their initial AAPs.
Some parts of AAPs – in particular, availability analysis and goal-setting (if necessary) do not need to be completed until later. These deadlines can be found in OA's Implementation Timeline.
The AAP deadlines for sponsors registered with SAAs depends on when their state EEO Plans are approved.
Which sponsors are required to conduct annual reviews of personnel practices and what should be included in those reviews?
Sponsors that must develop AAPs are required to conduct an annual review of their personnel practices to help ensure the program is free from unlawful discrimination. This review must be a careful, thorough, and systematic review of all aspects of the apprenticeship program at the program, industry and occupation level. The review includes, but is not limited to, the qualifications of apprentices, application and selection procedures, wages, outreach and recruitment activities, advancement opportunities, promotions, work assignments, job performance, rotations among all work processes of the occupation, disciplinary actions, handling of requests for reasonable accommodations, and the program's accessibility to individuals with disabilities. The AAP must include a description of the review the sponsor undertook and any modifications it made to its practices as a result of the review.
- General Questions
- Nondiscrimination/Equal Employment Opportunity Provisions
- Complaint Information
- Affirmative Action Program Requirements
- Sponsor Workforce and Utilization Analyses
- Targeted Outreach, Recruitment, Selection and Retention
- Affirmative Action Requirements Related to Individuals with Disabilities