FREQUENTLY ASKEDQUESTIONS

Questions and Answers on Title 29 CFR Part 30

1. Question - May the upper age restriction be waived for minorities and females and not for applicants in general without risking a discrimination complaint? Answer - No. In general, sponsors must not apply restrictions to one class of applicants and not to others. However, where upper age restrictions have excluded minorities or women disproportionately, sponsors may waive such restrictions for those groups in order to remedy past discrimination. 2. Question - Does the regulation require that the attrition rate among women during the term of their apprenticeship not exceed the attrition rate for the program as a whole? If women represent 20 percent of an entry class of apprentices, are they expected to equal 20 percent of the same class during the second and each subsequent year of their apprenticeship? If this interpretation is correct, how is a program sponsor expected to administer their program to meet this requirement? Answer - No. The regulations require sponsors to take affirmative action to recruit, select, employ, train and maintain women as apprentices. The regulations do not require that the same proportion of women be retained in each year of the program regardless of performance and qualifications. The regulations do require a demonstration of good faith efforts which can reasonably be expected to make the program work. These good faith efforts should include encouragement of women already in apprenticeship programs to continue in such programs. 3. Question - Can a sponsor limit the number of applicants they will accept? Answer - Yes, but a sponsor should not limit the number of applicants before taking all appropriate affirmative action steps to increase the numbers of women or minorities in the applicant pool so as to assure equal employment opportunity. 4. Question - Can a sponsor control the composition of the list by specifying how many applicants will be given to minorities and women?Answer - No. Again, sponsors must take good faith affirmative action steps to include women and minorities in the pool of eligible applicants, but may not apply different application procedures to different groups of applicants. The application period should be long enough to assure the receipt of an adequate number of applications from all groups. 5. Question - May a separate ranking list be maintained for women and minorities? Answer - No. Generally, separate ranking lists may not be employed, and selection of apprentices must be made in accordance with Title 29 CFR 30.5. However, separate ranking lists are permissible where: (1) the selection process has an adverse impact on women or minorities and has not been validated in accordance with 41 CFR Part 603, or (2) there has been a legislative, judicial or administrative finding that women or minorities have been discriminated against in the past and separate ranking lists are necessary to remedy that discrimination, in which case such action would be consistent with the Supreme Courts decision in Regents of the University of California v. Bakke, or (3) the sponsor is complying with the EEOC Guidelines on Affirmative Action, which appear at Title 29 CFR Part 1608, or (4) the circumstances described by the Supreme Court in Steelworkers v. Weber, 47 USLW 4851 (1979), are met. 6. Question - What advice can we give sponsors regarding maternity and paternity leave? Answer - OFCCPs Sex Discrimination Guidelines (41 CFR Part 60-20) provide that women shall not be penalized in their conditions of employment because they require time away from work on account of childbearing. When, under the employers leave policy, the female employee would qualify for leave, then childbearing must be considered by the employer to be a justification for leave of absence for female employees for a reasonable period of time. If the employer has no leave policy, childbearing must be considered by the employer to be a justification for leave of absence for a female employee for a reasonable period of time. /41 CFR 60-20.3(g)/ The Guidelines are silent with respect to paternity leave. In general, the conditions applicable to a male employees leave shall be in accordance with the employers otherwise applicable non-sick leave policy. Although 29 CFR 30 does not contain any specific provision on maternity and paternity leave, we think OA can look to OFCCPs Guidelines for guidance. 7. Question - Is an employer exempt from Title 29 CFR Part 30 under Title 29 CFR Section 30.3(e) if it has a written affirmative action program approved under Executive Order 11246 but which does not provide for goals and timetables for minorities and women in apprenticeship? Answer - No. Under Title 29 CFR Section 30.3(e) a sponsor is exempt from the requirements of Title 29 CFR Part 30 only if it submits satisfactory evidence that it is in compliance with an affirmative action program approved under Executive Order 11246 which provides for affirmative action in apprenticeship including goals and timetables for women and minorities. If the affirmative action program only provides for goals for minorities, the sponsor must comply with the requirements of Title 29 CFR Part 30 in setting goals and timetables for women. The same holds for equal opportunity programs approved under Title VII of the Civil Rights Act of 1964, as amended. 8. Question - In a group program (either joint union and management or nonjoint management program) where individual employers select the apprentices, if each employer has fewer than 5 apprentices, is the program exempt under Title 29 CFR Section 30.3(b)? Answer - No. The sponsor of the program is the joint committee so that the number of apprentices in the program is measured by the total number indentured by the committee, i.e., the sum of all apprentices employed by all the member employers.9. Question - In joint program such as that described in question 8, who is responsible for making good faith efforts to achieve the goals and timetables, the joint committee or the
individual employers?Answer - The joint committee, as the sponsor of the program, is responsible for meeting the goals and timetables or for demonstrating that good faith efforts have been made to attain the goals and timetables. If individual employer members of the group program have not made a good faith effort to recruit, select and train minorities and women so that the program as a whole fails to meet its goals, the joint committee, as the sponsor, would be held responsible and the whole program could be deregistered. 10. Question - The terms labor force and workforce are both used in Title 29 CFR Part 30. Is there any difference? Answer - No. The terms are synonymous. 11. Question - Is there a minimum number of affirmative action steps under Title 29 CFR Section 30.4(c) which are acceptable as required activities by all sponsors? Answer - No. The circumstances of each sponsor vary too widely to expect all sponsors to undertake the same outreach and recruitment activities. Good faith effort will be judged by the extent to which each sponsor engaged in affirmative action efforts appropriate to its circumstances.12. Question - If a sponsor selects apprentices on the basis of rank from a pool of eligible applicants, may the sponsor pass over higher ranked men to reach women with a lower rank in order to meet the goals and timetables? Answer - One of three conditions must be met before this procedure may be used. Generally, selections are to be made on the basis of qualifications assuming good faith affirmative action steps have been taken to include women and minorities in the pool of eligible applicants. However, selection out of rank order is permissible where(1) the selection process has an adverse impact on women or minorities and has not been validated in accordance with 41 CFR Part 60-3, or (2) there has been a legislative, judicial or administrative finding that women or minorities have been discriminated against in the past and selection out of rank order is necessary to remedy that discrimination. Such action would be consistent with the Supreme Courts decision in Regents of the University of California v. Bakke, 438 U.S. 265 (1978) or (3) the sponsor is taking affirmative action under the EEOCs Guidelines on affirmative action (Title 29 CFR Part 1608). 13. Question - If a sponsor selects a minority woman to be an apprentice, should that person be counted as a minority, as a woman, or may she be counted as both? Answer - If the goal for women is set on the basis of an availability analysis for women in accordance with Title 29 CFR Section 30.3(e), then it would be appropriate to count minority women in both categories. The Census Bureau workforce statistics include minority women under both the figure for minorities and the figure for women so that it would be reasonable to count minority women under both categories for measuring success in meeting goals.14. Question - Under Title 29 CFR Section 30.6, a sponsor must discard existing lists of eligible if there are fewer minorities or women on the lists than would be expected as a result of the underutilization analysis required by Title 29 CFR Section 30.4(e). What should be done with the applications of individuals on such a list? Answer - The applications of those individuals must be retained and their names placed on the new list in their appropriate places according to the selection procedure along with women and minorities. 15. Question - May a sponsor seek and accept applications exclusively from minorities and women in order to meet its goals and timetables? Answer - No. Equal opportunity and affirmative action under Title 29 CFR Part 30 does not require and does not permit preferential treatment for any group. A goal is a numerical objective which the sponsor must strive to achieve, not a fixed number which must be attained. A sponsor is not required, nor is it permissible, to recruit or accept applications from members of only one group, or to repeatedly discard eligibility lists until the proper percentages are attained, or to select individuals without
regard to qualifications, in order to meet the goal.16. Question - Is it permissible for a sponsor to test applicants for physical ability? Answer Yes. Sponsors may give tests of physical ability which are part of the job content, (for example, ability to lift or move specific items which an apprentice is required to handle on the job) if goals required for women in construction under Executive Order 11246 are lower than the entering class goal required by Title 29 CFR Part 30 for apprenticeship programs, this is appropriate in view of the fact that the Executive Order 11246 goals apply to all levels of construction work, not just apprenticeship.

17. Question - Who will monitor the compliance and good faith affirmative action efforts of program sponsors? Answer - Enforcement and monitoring of compliance with Title 29 CFR Part 30 is the responsibility of the Office of Apprenticeship or of State Apprenticeship Councils in States where OA has granted recognition to a State agency to monitor compliance by program sponsors. 18. Question - If a sponsor opened and closed an application period just prior to the effective date of the amended Title 29 CFR Part 30, and few women applied, is the sponsor required to take any other action to bring women into the program before the next application period? Answer - Unless the sponsors action was an attempt to avoid the requirements of the regulations (i.e., the application period was moved up to take place before the effective date of the regulation when it had been planned to take place later) no further action is required if openings do not exist. 19. Question - How should sponsors treat pregnant applicants and pregnant apprentices? Answer - Pregnancy should be treated in the same manner as any other temporary disability. If a womans doctor determines she is physically capable of performing the work involved in the particular trade in question, she cannot be rejected for admission or laid off because she is pregnant. 20. Question - In a group program (joint unions and management program) where individual employers select the apprentices, if each employer has fewer than 5 apprentices, is the program exempt under Title 29 CFR Selection 30.3 (b)

Answer: No. The Sponsor of the program is the joint committee so that the number of apprentices in the program is measured by the total number indentured by the committee, i.e., the sum of all apprentices employed by all the member employers.