June 24, 2019

Today, the U.S. Department of Labor (DOL) published its long-awaited proposed rule on Industry Recognized Apprenticeship Programs (Industry-Recognized Programs) that DOL is required to establish pursuant to a 2017 Executive Order issued by President Trump.  You can find the complete text of the rule here. 

SWACCA has been working to influence the establishment of these new training programs for over two years.  These efforts have involved direct lobbying of government officials. They have also entailed submission of two separate sets of technical comments to the DOL on ways to establish Industry-Recognized Programs without undermining the existing registered apprenticeship system that SWACCA members and their labor partners have jointly funded and operated for decades. 

During this two-year effort, SWACCA has won some important battles.  Our lobbying and comment writing helped to shape initial guidance in July of 2018 precluding Industry-Recognized Programs in construction.  We successfully pressed the need to emphasize in the Report of the President’s Task Force on Apprenticeship the case for safeguarding the investments already made in registered apprenticeship in the construction industry. 

In the proposed rule issued today, we see signs of progress, as well as proof that we need to continue fighting to protect our apprenticeship programs. Importantly, the proposal includes language that would “initially” prohibit entities from seeking to certify Industry-Recognized Programs in the “construction industry”.  Moreover, the term “construction industry” is defined exactly as SWACCA proposed in its written comments to DOL last November.  This definition would cover any construction craft that is in the “building and construction industry” for purposes of ERISA—and is very protective of wall and ceiling contractors.  And, as SWACCA requested in its comments on an earlier version of the application form for Industry-Recognized Program certifiers, this construction exclusion is clearly stated in the instructions to the form prohibiting entities from even seeking approval to certify these types of programs in our industry. 

But the fight is far from over!  The proposed rule is now open for a 60-day public comment period. The DOL has expressly requested comment on the exclusion that would keep Industry-Recognized Programs out of construction.  DOL has emphasized that it is just an “initial” exclusion rather than a permanent one.  It has also made clear that it may modify the exclusion, impose a sunset date for it, or remove it altogether following the public comment process.  It is also possible that the exclusion could ultimately be applied on a regional basis. 

We will be in touch in the coming weeks about how you can help SWACCA and the unionized construction industry maximize the likelihood that our programs will be protected when a final rule is issued following the public comment period.

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