Lawriter - OAC - 5101:11-5-02 Affirmative action plan.

5101:11-5-02 Affirmative action plan.

(A) Adoption of affirmative action plans. Rule 5101:11-5-02 of the Administrative Code applies to every registered program. The program's commitment to equal opportunity in recruitment, selection, employment and training of apprentices shall include the adoption of a written affirmative action plan, with the exception of cases described in paragraph (C) of rule 5101:11-5-01 of the Administrative Code, concerning a Title VII EEO program.

(B) Definition of affirmative action. Affirmative action is not mere passive nondiscrimination. It includes procedures, methods and programs for the identification, positive recruitment, training, and motivation of minority and female apprentices including the establishment of goals and timetables. It is action which will equalize opportunity in apprenticeship so as to allow full utilization of the work potential of minorities and women. The overall result to be sought is equal opportunity in apprenticeship for all individuals participating in or seeking entrance to the nation's labor force.

(C) Outreach and positive recruitment. An acceptable affirmative action plan must also include adequate provision for outreach and positive recruitment that would reasonably be expected to increase minority and female participation in apprenticeship by expanding the opportunity of minorities and women to become eligible for apprenticeship selection. The sponsor shall undertake a significant number of appropriate activities in order to meet its obligations under division 5101:11 of the Administrative Code. The scope of the affirmative action plan will depend on such circumstances as the size and type of the program and its resources. Whenever special circumstances warrant, the United States department of labor (DOL) may provide such financial or other assistance as it deems necessary to implement the requirements of this paragraph. The affirmative action plan shall explicitly include one or more of the following activities:

(1) Dissemination of information concerning the nature and benefits of apprenticeship, requirements for admission to apprenticeship, availability of apprenticeship opportunities, sources of apprenticeship applications, and the equal opportunity policy of the sponsor. If adopting this strategy, programs that accept applications only at specified intervals must disseminate such information at least thirty days in advance of the earliest date for application at each interval. Programs that adopt this strategy and that customarily take applications throughout the year, must disseminate the information regularly, but not less than semiannually. All sponsors that take applications from non-employees must, if adopting this information strategy, disseminate the information to the council office, the office of apprenticeship, local schools, employment service offices, Workforce Investment Act (WIA) one-stop offices, women's centers, outreach programs, and community organizations which can effectively reach minorities and women, and shall distribute it through mass media that provide contact with the minority community and women, as well as those that reach the general public in areas where the program sponsor operates.

(2) Participation in annual workshops conducted by employment service agencies for the purpose of familiarizing school, employment service, and other appropriate personnel with the apprenticeship system and current opportunities therein.

(3) Cooperation with local school boards and vocational education systems to develop programs for preparing students to meet the criteria for entry into apprenticeship programs, insofar as these efforts promote the purposes of affirmative action.

(4) Internal communication of the sponsor's equal opportunity policy in such a manner as to foster understanding, acceptance and support among the sponsor's various officers, supervisors, employees, and members, and to encourage such persons to take the necessary action to aid the sponsor in meeting its obligations under division 5101:11 of the Administrative Code.

(5) Utilization of journey workers to assist in the implementation of the sponsor's affirmative action program.

(6) Granting advance standing or credit on the basis of previously acquired experience, training, skills or aptitude, to encourage entry by individuals who may lack access to traditional preparation for apprenticeship; provided that such policies are applied equally and without discrimination.

(7) Other appropriate activities that can be applied toward affirmative action, such as: general publicity about apprenticeship opportunities and the benefits thereof, via advertisements, industry reports, articles, etc.; use of present minority and female apprentices and journey workers as recruiters; career counseling; periodic auditing of affirmative action plans and activities; and the relevant use of administrative procedures such as reporting systems, on-site reviews, briefing sessions, etc.

(D) Collaboration with other entities.

(1) The sponsor shall collaborate with other organizations (for instance, community organizations and other sponsors) in positive recruitment and preparation of female and/or minority applicants for apprenticeship. Where appropriate and feasible, such initiatives shall provide for pre-testing of experience and training. If no such initiatives exist in the sponsor's locality, the sponsor shall seek to develop one, and/or to obtain financial assistance for such efforts when it is available from DOL. In each case where registered training is for a traditionally male occupation, the sponsor shall engage in one or more initiatives to prepare and encourage women to enter that training.

(2) To encourage the establishment and use of programs designed to prepare significant numbers of female and minority individuals for apprenticeship, through such activities as pre-apprenticeship and preparatory occupational training, a sponsor's affirmative action shall ensure that people served by these initiatives are afforded full and equal opportunity for admission to the apprenticeship program.

(E) Updating plans. Sponsors shall review their affirmative action plans annually and update them where necessary, including the goals and timetables.

(F) Analysis to determine if deficiencies exist. The sponsor shall, with technical assistance from the council office, conduct an analysis of at least the following factors, which analysis shall be set forth in writing as part of the affirmative action plan:

(1) The sizes of the working age minority and female populations in the sponsor's labor market area;

(2) The sizes of the minority and female labor forces in the sponsor's labor market area;

(3) The percentages of the program's apprentice labor force in each craft that are minority and female, as compared with these percentages of the overall labor force in the sponsor's labor market area;

(4) The percentages of the program's journey worker labor force that are minority and female, as compared with these percentages of the overall labor force in the sponsor's labor market area;

(5) The extent to which the sponsor should be expected to correct any deficiencies through the achievement of goals and timetables for the selection of apprentices; and

(6) The general availability of minorities and women with present or potential capacity for apprenticeship in the program sponsor's labor market area.

(G) Goals and timetables.

(1) "Analysis" as used in this paragraph means the analysis described in paragraph (F) of this rule.

(2) "Underutilization" or "deficiency" as used in this rule refers to the situation where a sponsor's total workforce for a craft represented by the program includes fewer minorities and/or women, than would reasonably be expected in view of the analysis described in paragraph (F) of this rule. In this sense, the "sponsor" means the program sponsor itself as well as any employer(s) affiliated with the program.

(3) A sponsor which determines, on the basis of the analysis described in paragraph (F) of this rule, that it underutilizes minorities and/or women, shall include in its affirmative action plan percentage goals and timetables for the selection of minority and/or female applicants for the apprenticeship program in the pertinent craft(s) and, where an eligibility pool is used in the selection process, through the admission of applicants into the pertinent eligibility pool.

(4) Where, on the basis of the analysis, the sponsor determines that it has no deficiencies, no goals and timetables need be established. However, in that case, the affirmative action plan shall include a detailed explanation why no goals and timetables have been established.

(5) Establishment of goals and timetables. Where goals and timetables are required, they shall be established on the basis of the sponsor's analysis and its entire affirmative action program. A single goal for minorities and a separate single goal for women is acceptable unless a particular subset of one or both of these groups is substantially underutilized, in which case a separate goal shall be established for that subset. A subset goal would be required, for example, if a specific minority group of women were underutilized even though the sponsor had achieved its goal(s) for women generally. In establishing all of its goals, the sponsor should consider the results which could be reasonably expected from its good faith efforts to make its overall affirmative action program work. However, in order to deal fairly with program sponsors, and with demographic groups addressed by the goals and timetables requirements, the program sponsor would generally be expected to set a goal for selection of apprentices from these groups at a rate which is not less than fifty per cent of their proportion of the workforce in the sponsor's labor market area. Sponsors are expected to make appropriate adjustments annually in their goal levels, but not to reduce them. See 29 C.F.R. 30.8(b) ("equal employment opportunity in apprenticeship and training").

(6) Adjustment of goals and timetables. Where the council office determines that the sponsor has deficiencies within the meaning of this rule, and that its affirmative action plan contains inadequate goals and timetables, or none at all, the council office shall establish goals and timetables for the program that it deems appropriate to address the requirements of paragraph (G) of this rule. The sponsor shall make good faith efforts to attain these goals and timetables.

(H) Compliance. Compliance with the requirements of paragraph (G) of this rule shall be determined by whether the sponsor has met its goals within its timetable, or failing that, whether it has made good faith efforts to meet its goals and timetables. Its "good faith efforts" shall be judged by whether it is following its affirmative action program and attempting to make it work, including evaluation and changes in its program where necessary to obtain the maximum effectiveness toward the attainment of its goals. In the event of the failure of the sponsor to meet its goals and timetables, it shall be given an opportunity to demonstrate that it has made every "good faith effort" to meet its commitments. All the actions of the sponsor shall be reviewed and evaluated in determining whether such good faith efforts have been made.

(I) Adjustment of program standards for affirmative action. Where a sponsor, despite its good faith efforts, fails to meet its goals and timetables within a reasonable period of time, the sponsor may be required to make appropriate changes in its affirmative action program to the extent necessary to obtain maximum effectiveness toward the attainment of its goals. The sponsor may also be required to develop and adopt an alternative selection method, including a method prescribed by the council office, where it is determined that the failure of the sponsor to meet its goals is attributable in substantial part to the selection method. Where the sponsor's failure to meet its goals is attributable in substantial part to its use of a qualification standard which has adversely affected the opportunities of minorities and/or women for apprenticeship, the sponsor may be required to demonstrate that such qualification standard is directly related to job performance, in accordance with the provisions of 41 C.F.R. 60-3.

(J) Data and information. The Ohio department of job and family services shall make available to program sponsors data and information on minority and female labor force characteristics for each standard metropolitan statistical area, and for other special areas as appropriate.

(K) Existing lists of eligibles. When planning to adopt a selection method under paragraph (C) (regarding eligibility pools) or (E) (regarding "alternatives") of rule 5101:11-4-01 of the Administrative Code, a sponsor that has a pre-existing eligibility list naming fewer minorities and/or women than would reasonably be expected in view of the analysis described in paragraph (F) of this rule, shall discard that list. In its place, a new eligibility list shall be established pursuant to the requirements of this chapter and of paragraph (C) of rule 5101:11-4-01 of the Administrative Code, and shall be posted at the sponsor's place of business. In that event, a sponsor shall not adopt an alternative method under paragraph (E) of rule 5101:11-4-01 of the Administrative Code, unless and until it can demonstrate that the method is likely to achieve the maximum effectiveness in complying with the goals and timetables prescribed in paragraph (G)(3) of this rule.

(L) Nondiscrimination. The commitments contained in the sponsor's affirmative action program are not intended, and shall not be used, to discriminate against any qualified applicant or apprentice on the basis of race, color, religion, national origin, sex, or age.

Replaces: 5101:11-4-02

Effective: 08/07/2014
R.C. 119.032 review dates: 08/01/2019
Promulgated Under: 119.03
Statutory Authority: 4139.03
Rule Amplifies: 4139.03 , 4139.05
Prior Effective Dates: 10/8/71, 10/13/78, 11/23/98, 3/22/04, 6/6/09