[Federal Register Volume 60, Number 191 (Tuesday, October 3, 1995)]
[Proposed Rules]
[Pages 51762-51764]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-24174]
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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
29 CFR Part 1625
Coverage of Apprenticeship Programs Under the Age Discrimination
in Employment Act (ADEA)
AGENCY: Equal Employment Opportunity Commission.
ACTION: Notice of proposed rulemaking.
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SUMMARY: Due to changing circumstances in the workforce and structural
changes in the workplace, the Commission has decided to review its
interpretation excluding apprenticeship programs from coverage under
the ADEA to determine whether it is required by the language of the Act
and to assess the policy considerations involved, i.e., does the
interpretation implement sound policy under present day conditions. In
order to conduct that review and in accordance with Executive Order
12866 the Commission proposes to seek public comment on rescinding the
existing interpretation and issuing a legislative rule covering
apprenticeship programs under the ADEA. The Commission hopes to
determine from the comments whether a proposed rule covering
apprenticeship programs would better advance the ADEA's objectives of
promoting the employment of older persons based on their ability rather
than age, and prohibiting arbitrary age discrimination in employment or
whether there are sound policy reasons for retaining the current
interpretation.
DATES: To be assured of consideration by the Commission, comments must
be in writing and must be received on or before December 4, 1995.
ADDRESSES: Written comments should be submitted to Frances M. Hart,
Executive Officer, Executive Secretariat, Equal Employment Opportunity
Commission, 1801 ``L'' Street, NW., Washington, DC 20507.
As a convenience to commenters, the Executive Secretariat will
accept public comments transmitted by facsimile (``FAX'') machine. The
telephone number of the FAX receiver is (202) 663-4114. (Telephone
numbers published in this Notice are not toll-free). Only public
comments of six or fewer pages will be accepted via FAX transmittal.
This limitation is necessary in order to assure access to the
equipment. Receipt of FAX transmittals will not be acknowledged, except
that the sender may request confirmation of receipt by calling the
Executive Secretariat Staff at (202) 663-4078.
Comments received will be available for public inspection in the
EEOC Library, room 6502, by appointment only, from 9 a.m. to 5 p.m.,
Monday through Friday except legal holidays, from December 4, 1995
until the Commission publishes the rule in final form. Persons who need
assistance to review the comments will be provided with appropriate
aids such as readers or print magnifiers. To schedule an appointment
call (202) 663-4630 (voice), (202) 663-4630 (TDD).
Copies of this notice of proposed rulemaking are available in the
following alternate formats: large print, braille, electronic file on
computer disk, and audio tape. Copies may be obtained from the Office
of Equal Employment Opportunity by calling (202) 663-4395 (voice) or
(202) 663-4399 (TDD).
FOR FURTHER INFORMATION CONTACT: Joseph N. Cleary, Assistant Legal
Counsel or James E. Cooks, Senior Attorney Advisor, (202) 663-4690
(voice), (202) 663-7026 (TDD).
SUPPLEMENTARY INFORMATION:
Historical Background
The Department of Labor (DOL) was initially given jurisdiction over
the enforcement of the ADEA. In 1969, DOL published an interpretation
that excluded apprenticeship programs from the ADEA. See 34 FR 323
(January 9, 1969). The rationale given by DOL for the ``no-coverage''
position was that apprenticeship programs had been traditionally
limited to youths under a specified age in recognition of
apprenticeship as an extension of the educational process.
The Commission assumed responsibility for enforcing the ADEA
pursuant to Reorganization Plan No. 1 of 1978. See 45 FR 19807 (May 9,
1978). In June of 1979, the Commission published a notice in the
Federal Register advising the public that all DOL interpretive
guidelines on the ADEA would remain in effect until such time as the
Commission could issue its own guidelines. See 44 FR 37974 (June 29,
1979). In November of 1979, the Commission published its own proposed
ADEA Guidelines, but did not include a proposal on the apprenticeship
issue. See 44 FR 68858 (Nov. 30, 1979).
On September 23, 1980, the Commission preliminarily approved a
proposed recision of the DOL position on apprenticeship and voted to
replace it with a legislative rule providing for coverage of
apprenticeship programs. The Commission then published for comment a
proposed legislative rule stating that age limitations in
apprenticeship programs would be unlawful under the ADEA unless
justified as a BFOQ or specifically exempted by the Commission under
section 9 of the Act. See 45 FR 64212 (Sept. 29, 1980).
After considering the public comments submitted in response to this
proposal, the Commission declined to adopt it by a vote of 2-2. It then
republished the DOL interpretive rule as part of its final ADEA
interpretations. See 46 FR 47726 (Sept. 29, 1981).
In August of 1983, a United States District Court in New York
reviewed the Commission's position on the applicability of the ADEA to
apprenticeship programs in Quinn v. New York State Electric and Gas
Corp., 569 F. Supp. 655 (1983). The Quinn court, inter alia, found the
interpretation invalid because it was not supported by ``the language,
purpose, and legislative history of the ADEA.'' Quinn, 569 F. Supp. at
664. The Commission, however, was not a party in this case, and the
court's decision did not require that the Agency take any action
regarding its apprenticeship interpretation.
In 1984 the Commission revisited the issue, expressing serious
concern about the interpretation. Prompted by this concern, the
Commission voted 4-0 to send a proposal to the Office of Management and
Budget (OMB) that would rescind the apprenticeship interpretation and
replace it with a legislative rule covering apprenticeship programs
under the Act. However, the proposal was never published in the Federal
Register for public comment. On July 30, 1987, the Commission voted 3-1
to terminate the proposed regulatory action and affirmatively approved
the interpretation excluding apprenticeship programs. See 52 FR 33809
(Sept. 8, 1987).
In 1995, a lawsuit was filed challenging the interpretation as an
arbitrary and capricious agency action within the meaning of the
Administrative Procedure Act. 5 U.S.C. sec. 551 et seq. The Commission
is of the view that its prior actions with respect to the difficult
issue of the
[[Page 51763]]
proper relationship between the ADEA and apprenticeship programs have
been reasonable, deliberate, and taken in good faith. The Commission
rejects any claim that it has acted in a manner that is arbitrary and
capricious or otherwise inconsistent with law.
The Commission is also of the view, however, that neither the ADEA
nor its legislative history requires the existing position or prohibits
the proposed change--both are silent on the issue. Therefore, because
of changing circumstances in the workforce and structural changes in
the workplace, we have decided to reassess our position in order to
insure the most appropriate policy under present circumstances. In
connection with this reassessment, the Commission has decided to seek
public comment on a proposal rescinding the current interpretation and
replacing it with a substantive regulation which would provide that
apprenticeship programs are subject to the ADEA\1\
\1\An ``(a)dministrative agency concerned with furtherance of
the public interest is not bound to rigid adherence to its prior
rulings.'' Columbia Broadcasting System V. Federal Communications
Commission, 454 F.2d 1018, 1026 (D.C. Cir. 1971).
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Reasons for Issuing the Notice of Proposed Rulemaking
Congress has directed the Commission to help employers and workers
find ways of meeting problems arising from the impact of age on
employment. 29 U.S.C. sec. 621 (b). The Commission can fulfill this
obligation in part by reviewing periodically its interpretive
regulations in light of applicable law and policy. Public comment is
vital to the Commission's effort in this regard.
One problem facing many within the ADEA'S protected age group is
that changing technology and dynamic market conditions have left a
substantial number of older persons not only without jobs but often
without the prospect of future jobs. Additionally, many older women
encounter serious barriers when they seek to enter or reenter the
workplace. Congress itself has observed that older workers frequently
find themselves disadvantaged in their effort to retain employment, and
especially to regain employment when displaced from jobs. 29 U.S.C.
sec. 621(a)(1). The Commission is examining the factors which
contribute to many of the problems facing older workers and is now
seeking public comment to determine if this situation can be improved
by the elimination of the provision exempting apprenticeship programs
from ADEA coverage.
To begin with, the Commission notes that demographically the
workforce is changing more rapidly then ever before. The older worker
population has doubled over the past 30 years and is expected to
continue to increase. In the not too distant future, older people are
expected to outnumber children and youth. As a consequence, older
workers are considered an important resource in today's market place.
The Commission seeks to determine whether a change in the
interpretation would benefit employers and/or workers or whether
employers and/or workers would be better served by retaining the
current interpretation.
A second critical issue is the impact of the current interpretation
on groups that have been disadvantaged by historical employment
discrimination. The latest census figures demonstrate that minorities
and women are poorly represented in the crafts and that minorities have
unemployment levels almost triple that of the majority. With respect to
participation in skilled labor positions, census data from 1980 show
that women occupied 7.8% of the available positions, African Americans
6.8%, Hispanics 6.1% American Indians 0.6%, Asians, 1.0%, and minority
women 1.8%. The 1990 census data show that participation by women
decreased overall to 7.5% and demonstrate no gain at all for minority
women. The same data shows extremely modest gains in overall
representation of minorities with African Americans constituting 7.2%,
Hispanics 8.8%, American Indians 0.8%, and Asians 1.6% of all skilled
laborers. The Commission is interested in gathering information which
will help determine whether, and if so how, removing the interpretation
would affect minorities and women.
Third, the Commission would like to reexamine: (i) Whether removing
age barriers from apprenticeship programs would diminish training
opportunities for youth; and (ii) whether removing age barriers from
apprenticeship programs would increase costs because older trainees,
unlike younger ones, would leave the workforce before the employer is
able to recoup a fair return on its training investment. Input,
particularly from employers, labor organizations and other interested
individuals or groups, would greatly assist the Commission in its
efforts to determine whether recision of the interpretation would
reduce the number of employer/labor organization sponsored
apprenticeship programs.
In this regard, preliminary information suggests that (i) Many of
the states currently prohibit age discrimination in apprenticeship
programs--there also may be county and municipal laws with similar
prohibitions; (ii) many, if not most, craft/skilled trade
apprenticeship programs now operate without age limitations; and (iii)
job mobility today is more the rule than the exception for workers of
all ages. The Commission is specifically interested in whether there is
evidence which demonstrates that fewer apprenticeship programs operate
in jurisdictions that prohibit age discrimination. If so, is increased
cost the reason for fewer programs or are there other explanations? Is
there evidence demonstrating that youth are deprived of training
opportunities when programs abandon age limitations or are prohibited
from using them? Is there evidence showing that younger trainees remain
with an employer longer than trainees age 40 and older? If such
evidence exists, is the difference in average length of service great
enough to increase the cost of operating an apprenticeship program
without an age limitation? The Commission will carefully assess all
comments bearing on these matters before developing its final position.
Finally, the Commission is interested in examining any information
which provides insight into the question of whether apprenticeship
programs are an extension of the educational process rather than
employment. This includes any data demonstrating that apprenticeship
should be considered employment because apprentices perform work that
an employer would have to hire others to perform in the absence of the
apprentices, or which demonstrates apprenticeship should be considered
an extension of education because its main purpose is to teach
vocational skills.
The Commission also notes that under sec. 9 of the ADEA it has the
authority to permit covered entities to establish age limitations in
bona fide apprenticeship programs when such limitations are necessary
and proper in the public interest. In addition, programs that seek to
provide training opportunities specifically for persons with special
employment problems, for example, disadvantaged youth or minority
youth, may be able to do so under an existing Commission exemption. See
29 CFR sec. 1627.16. Commentors are encouraged to address whether any
of these specific provisions are adequate to meet the legitimate needs
of apprenticeship programs.
For all the above reasons, as well as any others that commenters
may want to bring to its attention, the Commission seeks public comment
on a proposal to rescind the interpretation and, using its
[[Page 51764]]
substantive rulemaking authority under sec. 9 of the ADEA, to
promulgate a rule providing that apprenticeship programs are subject to
the Act.
Executive Order 12866, Regulatory Planning and Review
The Equal Employment Opportunity Commission has determined that
this is not a significant rule as defined by Executive Order 12866 and
will not have an annual effect on the economy of $100 million or more
or adversely affect in a material way the effect on the economy of $100
million or more or adversely affect in a material way the economy, a
sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, or local or tribal
governments or communities. The rule will not create a serious
inconsistency or otherwise interfere with an action taken or planned by
another agency.
The rule as proposed does not contain any information collection or
record keeping requirements as defined in the Paperwork Reduction Act
of 1980 (Pub. L. 96-511). Similarly, the Commission certifies under 5
U.S.C. 605(b), enacted by the Regulatory Flexibility Act (Pub. L. 96-
354), that this rule will not result in a significant economic impact
on a substantial number of small entities. For this reason, a
regulatory flexibility analysis is not required.
The Commission is desirous of receiving comments concerning this
proposed rule from interested members of the public. Accordingly, the
Commission will receive comments for a period of 60 days after
publication. The Commission will consider such comments before taking
final action.
In addition, in accordance with Executive Order 12067, the
Commission has solicited the views of affected Federal agencies.
The proposed rule appears below.
List of Subjects in 29 CFR Part 1625
Advertising, Aged, Employee benefit plans, Equal employment
opportunity, Retirement.
Signed at Washington, D.C. this 22 day of September, 1995.
Gilbert F. Casellas,
Chairman.
It is proposed to amend chapter XIV of title 29 of the Code of
Federal Regulations as follows:
PART 1625--AGE DISCRIMINATION IN EMPLOYMENT ACT
1. The authority citation for part 1625 continues to read as
follows:
Authority: 81 Stat. 602; 29 U.S.C. 621, 5 U.S.C. 301,
Secretary's Order No. 10-68; Secretary's Order No. 11-68; sec. 12,
29 U.S.C. 631, Pub. L. 99-592, 100 Stat. 3342; sec. 2, Reorg. Plan
No. 1 of 1978, 43 FR 19807.
Sec. 1625.13 [Removed]
2. In Part 1625, Sec. 1625.13 would be removed.
Subpart B--Substantive Regulations
3. In Part 1625, Sec. 1625.21 would be added to Subpart B--
Substantive Regulations to read as follows:
Sec. 1625.21 Apprenticeship programs.
All apprenticeship programs, including those apprenticeship
programs created or maintained by joint labor--management
organizations, are subject to the proscriptions of sections 4(a) and
4(c) of the Act, 29 U.S.C. 623(a) and (c). Age limitations in those
programs are valid only if excepted under section 4(f)(1) or
specifically exempt under section 9 of the Act in accordance with the
rule set forth in 29 CFR 1627.15.
[FR Doc. 95-24174 Filed 10-2-95; 8:45 am]
BILLING CODE 6570-01-M
