Apprenticeships Now Mandatory for Public Construction Workers

Construction Worker

On January 31, 2019, Governor Murphy signed a new law (P.L.2019, c.21.) which now requires public work contractors to certify that its workers  on the public projects have completed apprentice- ships or enrolled in a registered apprenticeship pro- gram for their specific trades. (Alternately the con- tractor may confirm that each employee is paid at least the journeymen rate for that work, but it is unlikely that a firm could submit a competitive bid if doing so.) The bill applies to all workers to whom prevailing wages are due, and so presumably, includes the expanded scope of prevailing wage workers engaged in offsite fabrication. (See Prevailing Wage).

Under the law, firms can not rely on internal ad hoc training programs, the term “apprenticeship program” is defined as one that it is approved by the United States Department of Labor and provides the trainee with combined classroom and on-the-job training. The new law heavily favors unionized firms, who draw their employees from the union membership and, hence, the union apprenticeship programs. Such firms can also rely upon their shop stewards or union officials to provide the documentation on specific employee apprenticeship completion. However, many of the state’s 10,000-plus registered contractors are not signatories to union con- tracts (except for Project Labor Agreements applicable to specific projects). Most of these, particu- larly the smaller subcontractors do not currently participate in a formal apprenticeship program.

Proposed Regulations

As the new requirement goes into effect, the New Jersey Department of Labor has proposed regulations intended to ease the burden of compliance upon smaller, non-union contractors. The Department is proposing definitions for the terms “craft” and “craftworker,” that limit application of the Act’s registered apprenticeship program requirement to con- struction trades or crafts that the contractor utilizes directly on public works and that are included on the USDOL’s “List of Occupations Officially Recognized as Apprenticeable by the Office of Apprenticeship.” Furthermore, the New Jersey Department of Labor has proposed defining “participating in a registered ap- prenticeship program” in a manner that permits compliance by a given contractor without having at any particular time to actually employ an apprentice(s). Under the proposed amendments, a contractor would have the option of “participating in” a registered apprenticeship program in one of four ways.

  1. It may sponsor and obtain US DOL approval for its own registered apprenticeship program and employing a registered apprentice (s), (an option only likely to be pursued by very large firms); or
  2. By being signatory to a collective bargaining agree- ment with a labor union that is the sponsor of a registered apprenticeship program, provided that the collective bargaining agreement also establishes an ERISA-covered apprenticeship training program trust fund (for the purpose of financing the registered apprenticeship program) into which the con- tractor makes ongoing contributions, (in other words by being a union contractor) or
  3. By being a signatory to an agreement with a work- force intermediary, such as an industry association, consortium of businesses community based organization, or educational institution, that is the sponsor of a registered apprenticeship program, provided that the agreement between the contractor and the workforce intermediary also establishes an ERISA-covered apprenticeship training pro- gram trust fund (for the purpose of financing  the registered apprenticeship program) into which the contractor makes ongoing contributions; or
  4. Buy, during the one-year period immediately preceding submission to the Department of the Application for Public Works Contractor Registration, employing at least one apprentice who was registered with the USDOL within a regis- tered apprenticeship program; provided that the apprentice had completed at least 1000 hours of on-the-job learning with the

The proposed regulations also have a transition provision. For the period from May 1, 2019 (the effective date of P.L. 2019, c. 21) to April  30, 2020, a contractor submitting an application or renewal application for Public Works Contractor Registration may satisfy the requirements by certifying and possessing documentation to establish that the contractor, or the union with which it bar- gains, or a joint business association to which it joins has applied to the USDOL for approval of its a registered apprenticeship program for each craft that the contractor employs.

Potential Washington Counter Move

 Meanwhile, on June 15, President Trump signed an executive order (EO): Expanding Apprentice- ships in America. The order directs the Department of Labor to reconsider its regulations on apprenticeship programs. These new regulations are  to consider, among other things:

  1. how qualified third parties can recognize programs;
  2. requirements for qualified third parties to follow to ensure the apprenticeship programs they recognize meet quality standards;
  3. ensuring that any industry-recognized apprenticeship program may be considered for expedited and streamlined reg- istration; and
  4. whether to keep the existing processes for registering apprenticeship programs for employers.