Resource Center Civil Rights TST Headquarters’ Office of Civil Rights Contractor Compliance Progra - Download as DOC by aci64340

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									                Resource Center Civil Rights TST &
                Headquarters’ Office of Civil Rights
                 Contractor Compliance Program:
                On-the-Job Training (OJT) Overview
                Frequently Asked Questions (FAQS)

        1. What are the differences between an On-the-Job (OJT) program and
           an Apprenticeship Program?

        An OJT Program, specifically FHWA, provides training and improves skills of
        minorities, women, and disadvantaged persons so they have access and
        opportunity to skilled trade jobs and journey level positions in highway
        construction classifications. The OJT Program varies from State to State. There
        are various types of training programs such as contractor-based and project-
        based which are approved by the State Transportation Agency (STA) in
        concurrence with the Federal Highway Administration (FHWA) Division
        Office. At the completion of an OJT program, the trainee receives a certificate
        indicating the type and length of training (training hours) satisfactorily
        completed.

        An Apprenticeship Program also provides training and improves skills of
        minorities, women, and disadvantaged persons so they have access and
        opportunity to skilled trade jobs and journey level positions; however, it is more
        structured than an OJT Program. It provides a combination of on-the-job
        training and related instruction where workers learn the practical and theoretical
        aspects of a highly skilled occupation in apprenticeable classifications. The
        Apprenticeship Program is a nation wide program and is approved by the U.S.
        Department of Labor (DOL), Employment and Training Administration, Office
        of Apprenticeship or a recognized State Apprenticeship Agency.

        Apprenticeship programs can be sponsored by individual employers, joint
        employers, labor groups, and/or employer associations. Perhaps the most
        noticeable difference is that upon completion of an apprenticeship, the worker
        receives a Certificate of Apprenticeship and is recognized as a qualified
        journeyworker nationwide.




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      2. What is the difference between On-the-Job Training (OJT) and Training
         Special Provisions (TSP)?

       The OJT is a training program and a TSP is a contract clause. The OJT is
       defined as a job training program that provides employees the opportunity to
       develop the knowledge, skills and abilities to reach full journey level. (23 CFR
       230 Appendix A to Subpart Item # 7(b) A TSP is a contract clause which
       provides guidance on implementing a training and apprenticeship program.
       (23 CFR 230 Appendix B)

      3. Is the State required to have an OJT Program?

      Yes, the STAs are required to administer and manage an External (OJT) training
      program for highway construction projects. The FHWA policy “requires full
      utilization of all available training and skill improvement opportunities to assure
      increased participation of minority groups, disadvantaged persons, and women in
      all phases of the highway construction industry.” (23 CFR 230.107(b)) The OJT
      program requires STAs to establish an overall annual goal and establish contract
      specific goals on Federal-aid highway contracts sufficient to achieve the STA’s
      annual overall training goal. (23 CFR 230.111 (a) and (b))

      4. How do you set OJT goals?

      According to 23 CFR 230.111(a), the STA determines which Federal-aid
      highway construction contracts will include the TSP (Appendix B) and the
      minimum number of trainees to be specified after giving appropriate
      consideration to the guidelines set forth in 23 CFR 230.111(c). The STA is
      required to submit, to its FHWA Division Office, the number of trainees it intends
      to assign to Federal-aid highway projects for the calendar year. The FHWA
      Division Office approves the goal, and at the end of the calendar year, the STA
      provide the FHWA Division Office a year-end report on accomplishments.

      Please note it is not the policy or intent of FHWA to require 100% of the trainees
      on a project to be minorities, women and disadvantaged persons. But only in
      those skill crafts in which these individual groups are underrepresented, a
      majority of the training positions should be filled with minorities, women, and
      disadvantaged persons. Also, FHWA does not require every contract to have a
      TSP.




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        5. Are contractors required to have an OJT Program?

           Yes, contractors are required to have an OJT program. According to 23
           CFR Part 230 Appendix A to Subpart A, “Consistent with the contractor’s
           work force requirements and as permissible under Federal and State
           regulations, the contractor shall make full use of training programs, ex.,
           apprenticeship, and on-the-job training programs for the geographical area
           of contract performance.”

       6. When can a prime contractor waive its OJT requirements?

           A prime contractor cannot waive its OJT requirement. Under 23 CFR Part
           230, Appendix A to Subpart A, the Special Provisions for Specific Equal
           Employment Opportunity Responsibilities specifies, “Each contractor and
           subcontractor shall take full advantage of training programs in the
           geographic area of the performance of the contract,” and Appendix B to
           Subpart A requires TSP as part of the contractor’s equal employment
           opportunity and affirmative action programs. In addition, it is the policy of
           the FHWA to require full utilization of all available training and skill
           improvement opportunities to assure the increased participation of minority
           groups and disadvantaged persons and women in all phases of the highway
           construction industry. (23 CFR 230.107(b))

        7. Are contractors with a TSP required to get approval of the trainee and
           the construction trade?

           Yes, the STA must be able to determine whether the trainee is eligible to
           participate in the training program. According to 23 CFR Part 230,
           Appendix B to Subpart A, “No employee shall be employed as a trainee in
           any classification in which he has successfully completed a training course
           leading to journeyman status or in which he has been employed as a
           journeyman.” The minimum length and type of training for each
           classification is selected by the contractor, approved by the STA, and
           concurred upon by the FHWA Division Office.

        8. Are contractors required to have an approved training program prior
           to bid? If not and they do not have a program even though it states in
           the advertisement for bid, what course of action should the DOT take?

           Contractors are not required to have an approved training program prior to
           bid. When there is a TSP in the contract, “The contractor, prior to
           commencing construction, is required to submit to the STA, for approval,
           the number of trainees to be trained in each classification and the training
           program to be used. Also, the contractor will specify the starting time for
           training in each classification.” (23 CFR Part 230, Appendix B to Subpart
           A)



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      9. How much is the training reimbursement?

        The contractor is reimbursed 80 cents per hour of training given a trainee on a
        contract in accordance with an approved training program. The reimbursement
        procedures 23 CFR 230.117 (a) for OJT provisions indicate the STA’s will be
        reimbursed on the same pro-rata basis as the construction costs of the federal-
        aid project. Also 23 CFR 230.111 (g) allows the STAs an option of permitting
        Federal-aid highway construction contractors to bid on training to include
        method of payment in the TSP.

      10. Whose responsibility is it to monitor the quality and quantity of training?

         The monitoring of the OJT program is the responsibility of the contractor,
         STA and the FHWA Division Office. The prime contractor has the
         responsibility to provide training designed to lead to journey-person status.
         The STA as the contracting agency has the responsibility to assure that
         contractors fully comply with all conditions of its contract. Therefore, it is the
         STA’s responsibility to monitor the quality and quantity of training, as an
         oversight function at the project level. The FHWA Division office approves
         the Contractor Compliance program, which includes the administration of the
         OJT program.

      11. What is the difference between a trainee and an apprentice?

           The difference between a trainee and an apprentice is the type of program
           the are enrolled in.

           A trainee is defined as “a person who received on-the-job training, whether
           through an apprenticeship program or other programs approved or accepted
           by the FHWA.” (23 CFR 230.103)

           An apprentice is defined as “a worker at least 16 years of age who is
           employed to learn an apprenticeable occupation (29 CFR 29.2) as provided
           under the standards of apprenticeship (29 CFR 29.4) fulfilling the
           requirements of the apprenticeship program.” (29 CFR 29.5)

        11a. Is there a difference in their wage rate, especially if you are in a
             Davis Bacon State?

            The difference in the wage rates of a trainee and an apprentice will differ
            pending the training and apprenticeship programs, as well as, construction
            classifications. The proper wage rates to be paid to apprentices and trainees
            are determined by the particular programs in which they are enrolled and
            the percentage of the journey level as determined by the U.S. DOL,
            Employment and Training Administration, Office of Apprenticeship, Wage
            and Hour Division, or a recognized State Apprenticeship Agency. The



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            FHWA addresses wage determination requirements in its contracting
            requirements (FHWA-1273-Section IV and 23 CFR 230 Appendix B to
            Subpart A-Training Special Provisions)


        11b. It was mentioned that trainees should graduate in two years but some
             apprentice programs are longer, like electricians. How do we [State]
             handle this?

              To determine the amount of training hours needed to complete a
              particular training program, the STA would contact the appropriate
              agency for assistance, ex: the U.S. DOL, Employment and Training
              Administration, Office of Apprenticeship, a State Apprenticeship
              Agency recognized by the Office of Apprenticeship or FHWA for
              technical assistance.

      12. Can a contractor use an apprenticeship program to fulfill its OJT
          requirements?

         Yes, a contractor can use an apprenticeship program to fulfill its OJT
         requirements. According to (23 CFR 230.107 (b)) and the TSP, “OJT
         requirements can be fulfilled by utilizing all available training and skill
         improvement programs”. Further, (23 CFR 230.111 (f) (1)) indicates
         “Apprenticeship programs and other training programs approved by DOL do
         not need to be formally approved by the State Highway Agency nor FHWA
         Division Administrator”. Also, the apprenticeship program can be utilized if
         it meets the intent of the OJT Program. (23 CFR 230.111 (d))


      13. Can a contractor train a person in an apprenticeship classification, count
          that and then turn around and train that person in another OJT or
          apprenticeship classification on the same project?

         While this is possible, FHWA does not endorse this practice. This practice is
         not suitable or recommended for the program because this would raise a
         question about the contractor’s good faith effort (GFE) demonstration to
         enroll minorities, females, and disadvantaged persons available for training
         opportunities and fulfilling its EEO contract provisions. Equal employment
         and nondiscrimination is the intent of the OJT Program.




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      14. When a contractor transfers a trainee on another project for them to
          complete the OJT program, which gets the credit, the original project
          where the trainee came from or the new one?

         If a trainee is transferred to another project to complete the training program,
         the credit goes to the new project. Since the training opportunity is over on the
         original project, the trainee can be transferred to another project to complete
         the program. “It is normally expected that a trainee will begin training on the
         project as soon as feasible after start of work utilizing the skill involved and
         remain on the project as long as training opportunities exist in his/her work
         classification or until he/she has completed the training program.” (23 CFR
         230 Appendix B to Subpart A) Also, the STA should measure the
         demonstration of the contractor’s GFE on the original project if the training
         program was not completed.

      15. Can the State have a special provision (hiring agreement) indicating the
          contractor should use, as a first source, an organization (ex: Department
          of Social Service) to obtain trainees for OJT to fulfill welfare to work
          obligations on federal-aid projects?

         Yes, a contractor can use targeted recruitment to seek minorities, women, and
         disadvantaged persons to participate in a training program. A special
         provision can be used as long as the provision meets the requirements of the
         OJT program. However, a special provision cannot be used by the contractor
         “exclusively” as a source to obtain trainees or as an excuse for the contractor’s
         inability to demonstrate GFEs. In addition, the STAs cannot include a
         provision that requires a contractor to give any preference in hiring on a
         Federal-aid project, except for Indian preference, on contracts on and near
         reservation, and Appalachian contracts.

         Local hiring preferences on Federal-aid projects is a violation of (23 CFR
         635.117(b)), which indicates "No procedures or requirement shall be imposed
         by any State which will operate to discriminate against the employment of
         labor from any other State, possession or territory of the United States, in the
         construction of a Federal-aid project."




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      16. What is the difference between an exempt and nonexempt project?

         The FHWA has defined and approved certain standards for the National
         Highway System (NHS) and non-NHS projects. The exempt and nonexempt
         threshold (dollar amount of the project) and oversight varies according to the
         FHWA Division Office and the STA’s stewardship agreement such as
         approval of plans, specifications, and estimates (P, S and Es), FHWA
         involvement in project inspections and design activities, and concurrence in
         award and construction activities. However the terms “exempt and non-
         exempt” are not used anymore and FHWA has provided guidance on this
         issue.

             The following excerpt comes from the FHWA Stewardship Policy
             Question and Answer Paper:


             QUESTION: The FHWA restated policy on stewardship and oversight
             does not use the term "exempt". Why not?
             ANSWER: After the passage of the Intermodal Surface Transportation
             Efficiency Act, FHWA introduced the term "exempt" to refer to projects
             for which FHWA was not going to be involved in project level review and
             oversight. The term was sometimes misinterpreted to mean that FHWA
             does not have program or project oversight responsibility. In reality,
             FHWA has program level responsibility for all projects, even those for
             which a STA has assumed project responsibilities in accordance with 23
             USC 106. In order to alleviate the confusion that has arisen regarding the
             term "exempt", a conscious decision was made to avoid the use of the term
             when the restated policy was developed.
             In addition, the FHWA Division Office continues to have oversight and
             stewardship responsibilities for all FHWA programs including civil rights.

      17. What is the definition of disadvantaged in the OJT Program?

         The OJT Program does not define disadvantaged; however, some states define
         disadvantaged according to the poverty threshold or financial criteria defined
         by the Department of Health and Human Services and the Department of
         Labor for example: homeless, income status, welfare to work program, food
         stamps, etc. Disability has been included when financial status is a factor; not
         the person’s ability or in-ability to do the job. Also, the Appalachian regions
         use the Appalachian Regional Development Act of 1965 to define
         disadvantaged for their states.




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      18. Describe a contractor-based and a project-specific training program.

         A contractor-based OJT program assigns trainees to a contractor for a specific
         timeframe. The trainee works on a federal, state, or private project and the
         goal is for the contractor to graduate the trainee within a specific period of
         time, (such as two years). The contractor is reimbursed when the trainee is
         working on a Federal-aid highway project. An individual in this type of
         training program usually works on more than one project and their tenure as a
         trainee lasts longer.

         A project-specific OJT program assigns a trainee to a contractor for a specific
         Federal-aid project. Often times the trainee is unable to complete the OJT
         program on a specific project pending the number of hours assigned to the
         TSP. When the project is completed, the contractor has no obligation to keep
         the trainee. Therefore, STAs must ensure that contractors hire trainees early
         on in the project so that trainees are able to complete their training program.
         This OJT training model is discussed in 23 CFR Part 230.111 and is generally
         utilized by most STAs.

      19. Can States have different types of training programs (ex: contractor-based
          and project-specific).

         Yes, a STA can have different types of training programs. FHWA has
         approved contractor-based or project-specific OJT programs. States may also
         use any program registered with the US DOL, Employment and Training
         Administration, Office of Apprenticeship or a State Apprenticeship Agency,
         provided it is administered in a manner consistent with the EEO obligations of
         Federal-aid highway construction contracts. In addition, the FHWA
         regulations indicate “Apprenticeship and other programs approved by the US
         DOL that are reasonably calculated to meet the equal employment opportunity
         obligations of the contractor may be used without the approval of the STA and
         FHWA.” (23 CFR 230.111 (c-f))

      20. For a contractor-based program, can a contractor utilize non-minority
          males?

         The contractor can utilize a non-minority male; however, the primary
         objective of the OJT program is to train minorities, females and disadvantaged
         persons in highway construction classifications. Also, the TSP indicates that
         “The training program is not intended, and shall not be used, to discriminate
         against any applicant for training, whether a member of a minority group or
         not.” (23 CFR Part 230, Appendix B to Subpart A)




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      21. For a State that has a contractor-based OJT program, is there a
          minimum of training hours?

         It does not matter if the OJT program is contractor-based or project-specific.
         The minimum length and type of training for each classification is established
         in the training program selected by the contractor. “The STA and FHWA
         approve the OJT program if it is reasonably calculated to meet the equal
         employment opportunity obligations of the contractor and to qualify the
         average trainee for journey-person status in the classification concerned by the
         end of the training period.” (23 CFR Part 230, Appendix B to Subpart A)

      22. When a TSP is used in a contractor-based program, does this give the
          contractors with assigned trainees a bidding advantage over other
          contractors?

         No special consideration is given at the time of the bid for contractors that
         have agreed to assign training slots and who are administering a contractor-
         based program.

      23. How are TSPs used in a contractor-based program?

         A TSP may be invoked on any federal-aid contract where training slots/hours
         have been assigned whether project-specific or contractor-based. The TSP
         specifies “the number of individuals to be trained, the specification of trades
         to be trained in, the method of payment applied, and the application of
         training standards.” (23 CFR Part 230, Appendix B to Subpart A)

      24. What happens when a contractor does not meet the TSP requirements,
          such as a shortage of training hours?

         If the contractor fails to meet the TSP requirements such as shortage of
         training hours, the TSP indicates “No payment shall be made to the contractor
         if either the failure to provide the required training or failure to hire the trainee
         as a journeyman is caused by the contractor and evidences a lack of good faith
         effort on the part of the contractor in meeting the requirements of this TSP.”
         (23 CFR Part 230, Appendix B to Subpart A)

         The amount of the sanctions or penalties will depend on the STA’s contract
         administration procedures. However, there may be situations beyond the
         contractor’s control whereby a trainee may not accrue the required hours
         indicated in the training program. It is incumbent upon the STA to determine
         whether the contractor demonstrated good faith in its efforts regarding the
         TSP.




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      25. Should the TSP reporting to the STA be weekly or monthly?

         There is no requirement of the TSP for the contractor to report their OJT
         program on a weekly or a monthly timeframe. However, the TSP indicates
         “The contractor will provide for the maintenance of reports and furnish
         periodic reports documenting performance under this TSP.” (23 CFR Part
         230, Appendix B to Subpart A) The STA makes the decision on reporting
         based on their data collection and analysis requirements.

      26. Is the OJT program reporting period by calendar or fiscal year?

         The reporting period for the OJT program achievements is calendar year. Also
         according to 23 CFR 230.111(b), “The STA at the end of the calendar year
         informs the Division Administrator of the reasons for its inability to meet the
         suggested minimum number of training slots and the steps to be taken to
         achieve the goal during the next calendar year.”

      27. Have States with voluntary programs seen an increase in participation
          since implementing the [OJT] voluntary program?

         The term “voluntary” programs have been used by STAs who did not require
         contractors to have an OJT Program which is typically contractor or project
         based. FHWA has given flexibility to the STA’s to utilize various types of
         programs as long as the program meets the objective of OJT. However, these
         programs (also identified in some States as Pilot Programs) have not been
         formally approved by FHWA Headquarters Office of Civil Rights for usage
         nation-wide. Each program in States such as Mississippi, North Carolina,
         Michigan, Tennessee, Arkansas, Ohio, and Wisconsin have been approved by
         their FHWA Division Office on a case by case basis. As of this date, the data
         for these programs have not been formally collected and analyzed nationally
         by the FHWA Headquarters Office of Civil Rights. Therefore, it is unknown
         if there has been an increase in participation.

      28. Are the voluntary programs truly voluntary with no consequences for
          non- participation?

         Those STA’s who identified their OJT Programs as “voluntary” require
         various types of monitoring mechanisms for their programs such as EEO
         Contract Provisions, Training Provisions, Training Agreements or other State
         Provisions which address compliance and non-compliance of the contractor. If
         the programs were truly voluntary, without compliance factors, there would be
         no consequences for the contractor. However each program has requirements
         and mandates which have been approved by the STA’s FHWA Division
         Office.




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      29. Do the States with a voluntary program have a standard operating
          procedure and or a manual of operations? Were they given approval
          from FHWA Division Officer prior to being implemented?

         Because the “voluntary” programs have been approved by the STA’s FHWA
         Division Office, the FHWA Headquarters Office of Civil Rights and Resource
         Center Civil Rights Team currently do not have information on what types of
         standard operating procedures or manual of operations are being used.

      30. In States with a voluntary program, how many trainees and how many
          hours are sufficient to be considered successful?

         The OJT Programs identified has “voluntary” have been recognized and
         approved by FHWA Division Offices, therefore FHWA Headquarters Office
         of Civil has not collected data specific to these programs. These types of
         programs vary from State to State in accordance with their OJT program and
         the training classifications approved by their respective FHWA Division
         Office.

      31. What are common sanctions penalties? Are they based on occurrences,
          number of hours, or number of violations? How is the amount
          determined?

         The most common penalties or sanctions imposed by the STA’s against
         contractors have been withholding of payments or inability to bid on future
         contract opportunities. “The State would invoke its contract administration
         procedures if a contractor fails to follow the EEO and Training contract
         provisions.” (23 CFR Appendix A and B to Subpart A) If the contractor fails
         to meet the TSP requirements such as shortage of training hours, the TSP
         indicates “No payment shall be made to the contractor if either the failure to
         provide the required training or failure to hire the trainee as a journeyman is
         caused by the contractor and evidences a lack of good faith effort on the part
         of the contractor in meeting the requirements of the TSP.” The amount of the
         sanctions or penalties will depend on the STA’s contract administration
         procedures.

      31a. Are there any reparations to the participants? Under what
           jurisdictions?

          The FHWA regulations (23 CFR Part 230) do not address reparations
          (compensation) of the participant or trainee. If there is a violation
          regarding “reparation” of the participant or trainee, the STA could use its
          contract administration and labor compliance process and procedures to
          resolve the issue.




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      32. Are there any sanctions that will be imposed on prime contractors if
          found in noncompliance?

        Yes, sanctions can be imposed on prime contractors or a subcontractor who fail
        to meet the EEO requirements and TSP requirements. According to 23 CFR
        230.407, “A contractor is any person, corporation, partnership, or
        unincorporated association that holds a FHWA direct or federally assisted
        construction contract or subcontract regardless of tier.” The TSP also indicates
        “No payment shall be made to the contractor if either the failure to provide the
        required training or failure to hire the trainee as a journeyman is caused by the
        contractor and evidence of lack of good faith effort on the part of the contractor
        in meeting the requirements of the TSP.” Some sanctions for noncompliance
        include withholding progress payments, removal of pre-qualification status or
        inability to bid on future contract opportunities.

      33. What is the course of action when the [OJT] program specifies offsite
          training but it is not provided?

        According to the TSP requirements, as part of the contractor’s equal
        employment opportunity affirmative action program training, some offsite
        training is permissible as long as the training is an integral part of an approved
        training program and does not comprise a significant part of the overall training.
        Therefore, if the offsite training is not provided, the contractor has violated its
        contractual obligations and the STA’s would invoke its contract administration
        procedures to carry out the appropriate course of action.

      34. What does FHWA consider a success rate for graduation?

      The primary objective of the OJT program is to train and upgrade minorities,
      women and disadvantaged persons into higher paying skilled trades and
      transportation technology-related careers. An important result of this strategy is
      that the labor pool is broadened to meet projected future labor needs in the
      highway construction industry. Therefore development of minorities, women,
      and disadvantaged persons into journey level classifications, as well as, the
      contractor hiring the trainee at journey level is considered a success for the
      program. FHWA has not determined or required a success rate for graduation.

      35. Is there data that shows the number of graduates on an annual basis?

      Currently, FHWA Headquarter Office of Civil Rights (HCR) does not have the
      number of graduates in the OJT Program readily available. However, this data is
      captured by the STAs and the FHWA Division Offices. As part of the STA’s
      Contractor Compliance Program, (23 CFR 230 Appendix A to Subpart C), the
      STA’s program have procedures for identifying the number of minorities and
      women who have completed training programs. Also, the STA’s are required to
      report to the FHWA Division Offices their accomplishments of the OJT Program
      goals as indicated in (23 CFR Part 230.111 (b)).


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         The contractors are also required to keep records and reports necessary for the
         STA to determine compliance of his/her EEO requirements (23 CFR 230
         Appendix A to Subpart A (10)(a-c)). Records and reports would include
         information regarding the number of minority, non-minority group members,
         and women employed in each job classification. In addition, the reports
         include the progress and efforts made in locating, hiring, training, qualifying,
         and upgrading minority and female employees which is retained for three
         years and made available for inspection by authorized representatives of STA
         and FHWA.


      36. Where can you find the ratio of trainee to journey worker (1:10)?

         The ratio of trainee to journey level workers can be found in 23CFR 230.111
         (c) (10), which lists the guidelines utilized by the STA in selecting projects
         and determining the number of trainees to be provided training.

      37. What recruitment tools/methods have been most effective in attracting
          potential OJTs?

         Recruitment tools and methods vary from State to State according to the OJT
         Program. The FHWA Form 1273 encourages systematic and direct
         recruitment, as well as, partnerships with trade groups, minority and women
         organizations, and community based organizations have proven to be
         effective.

      38. What are States doing to track their OJT after they have graduated from
          the program and to keep track of the OJT retention rate?

         The FHWA Headquarters Office of Civil Rights and Resource Center Civil
         Rights Team are not aware of tracking methods at this time; however, since
         the programs are approved by the STA’s FHWA Division Office, it would be
         feasible to contact the FHWA Division Office for information on how their
         STA track the graduate and retention rate for their OJT program.

      39. Which States have good promising practices in OJT programs?

         The FHWA Headquarters Office of Civil Rights and Resource Center Civil
         Rights Team are in the process of collecting and reviewing Promising
         Practices in the Civil Rights Program areas. Those Promising Practices
         captured will be posted on the Resource Center’s Civil Rights Team website.




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      40. Are there samples of successful customized training programs?

         The customized training programs would vary from State to State according to
         the OJT or Apprenticeship Program utilized and approved by the STA in
         concurrence with their FHWA Division Office. Therefore, the STA and
         FHWA Division Office would have information on customized training
         programs.

      41. Is there an assessment tool or checklist for evaluating the minimum
          requirements for approved training programs

         The assessment tool or checklist for evaluating the minimum requirements for
         approved training programs would vary from State to State according to the
         OJT or Apprenticeship program utilized. Therefore, the STA and FHWA
         Division Office would have information on customized training programs.

      42. Does any other State have a software or payroll system that captures
          required information on OJT programs? Does it include analytical tools
          to determine statistical significance?

         The software and payroll system would vary from State to State. Because the
         FHWA Division Office monitors the STA’s OJT program they would have
         more information on what is being used in their respective State.

      43. What OJT reports are required?

         Contractors are required to submit a Federal-aid Highway Construction
         Contractors Annual EEO Report, FHWA-1391. The PR-1391 annual report is
         submitted by the contractor to the STA, each July, for the duration of the
         project, indicating the number of minority, women, and non-minority group
         employees currently engaged in each work classification required by the
         contract work. The employment data entered on the PR-1391 reflects the
         workforce on board during all or any part of the last payroll period preceding
         the end of the month of July.

         The contractor is also required to collect and report training data. (23 CFR
         Part 230, Appendix A to Subpart A, (10) (a-c)) The STA must submit a
         written report of its external training programs and activities which includes
         accomplishments of its OJT training program goal. In the event the STA does
         not attain its goal during a calendar year, the STA at the end of the calendar
         year will inform the FHWA Division Administrator the reasons for its
         inability to meet the suggested minimum number of training slots and the
         steps to be taken to achieve the goal during the next calendar year. The
         information is to be submitted not later than 30 days from the end of the
         calendar year. (23 CFR 230.111 (b))




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      44. What data should be collected?

         The following data is gathered for the 1391 report required by federal-aid
         highway contractors:

                 o   The total number of employees;
                 o   The total number of all minorities;
                 o   The total number of each ethnic group employed;
                 o   The total number of apprentices;
                 o   The racial and gender breakout of apprentices by classification;
                 o   The total number of OJT trainees;
                 o   The racial & gender breakout of OJT trainees by classification;
                 o   The number of projects being reported on and;
                 o   The total dollar value of the projects reported on.

         Additional data is gathered and submitted by the contractor, as well as
         analyzed and reported by the STA:

                 o The civilian labor force demographic;
                 o The need for additional journey-level persons in the area;
                 o The progress and efforts being made in cooperation with unions
                   (if appropriate) to increase employment opportunities for
                    minorities, women and the disadvantaged by contractors that rely
                    in part or in whole on unions as a source of recruitment for their
                    workforce;
                 o The progress and efforts being made in locating, hiring, training,
                   qualifying & upgrading minorities, women and the disadvantaged;
                 o Does the proposed training program reasonably address workforce
                   shortages by trade;
                 o The Good Faith Efforts made by the contractor;
                 o The total trainees enrolled;
                 o The total number of trainees completing training;
                 o The number of trainees terminated and;
                 o Follow-up tracking of individuals completing training.

          See (23 CFR Part 230, Appendix A to Subpart A, (10), (a-c))




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      45. Given that every State submits an annual OJT report; would FHWA
          please make this data available to all state transportation agencies (STA)?
          Along with this data, would FHWA also include the federal construction
          dollars allocated to each State?

         The STA submits its annual OJT program reports to its FHWA Division
         Office. The Headquarters Office of Civil Rights is responsible for capturing
         civil rights program reports nationally. The only report Headquarters collect is
         the Federal-Aid Highway Construction Summary of Employment Data (Form
         PR 1392) which is completed by the STA, summarizing the reports on PR-
         1391 for the month of July received from all active contractors and
         subcontractors. The employment data entered on the PR-1391 reflects the
         workforce on board during all or any part of the last payroll period preceding
         the end of the month of July. The report includes a breakdown of minority,
         non-minority, and women within each construction craft for OJT trainees and
         apprentices. The report does not include federal dollars allocated for each
         state. The report captures the dollar value of the contractor who submitted the
         report.

      46. What are other States using for their standard OJT classifications?

         The STAs use OJT classifications (ex: truck drivers, cement mason,
         carpentry, equipment operator) based on the standards (training hours,
         requirements, etc) according to the US DOL, Employment and Training
         Administration, Office of Apprenticeship or State Apprenticeship Agency.
         Also, contractors can develop or request limited modifications to training
         classifications to address their specialized workforce needs but the requested
         modifications cannot redefine the established OJT or Apprentice Industry Job
         Classifications Standards. The OJT classifications are approved, by the STA
         and FHWA, prior to usage if the classifications are developed or modified by
         the contractor.

      47. Should training classifications be listed individually or should they be
          grouped into categories?

         Whether the training classification should be listed individually or grouped
         depends on the reporting and monitoring requirements of the OJT program.
         For example, the FHWA’s Form PR-1391 requires contractors to report their
         highway construction activities by race, sex and ethnicity under the
         appropriate highway construction job category, as well as, for apprenticeship
         and OJT according to the highway construction job category (ex: equipment
         operator, carpentry, electrician, etc). Also, when the contractor and STA are
         monitoring the external training program activities regarding the utilization of
         minorities and women in the civilian labor force, the Census Bureau provides
         the EEO breakdown for both highway construction trades and the job
         classifications within the trades. For example, for equipment operators, the



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         Census Bureau lists the following job classifications: paving, surfacing,
         excavating, load operators, etc.

      48. Is there a resource or way to calculate how many training hours to set for
          each training classification?

         Yes, the STA’s OJT and Apprenticeship Hours are based on national
         standards which are maintained by the United States Department of Labor.
         The STA and contractor can obtain a wide assortment of OJT and/or
         Apprenticeship Program hours and related job classification information from
         the US DOL, Employment and Training Administration, Office of
         Apprenticeship or State Apprenticeship Agency.


      49. Is there a minimum requirement for the number of hours in training?
          What training program guidelines do we following (ex: Department of
          Labor-Employment Standard Administration (DOL, ESA)
          apprenticeships training guidelines)?

         Yes, the training hours are based on national standards and guidelines by the
         US DOL, Employment and Training Administration, Office of Apprenticeship
         or State Apprenticeship Agency. (23 CFR 230.111 (e) (1), (f) (1), and 2 (i-
         iii))

      50. Should a STA compile a list of recruitment sources that should be used or
          would be used to satisfy good faith effort (GFE)?

         Yes, the STA should compile a list of potential recruitment sources to be
         provided to the contractor in the event the contractor request assistance. The
         list would be helpful to the contractor to identify recruitment sources such as
         minority and women organizations, community based organizations,
         contractor associations, and state and local employment agencies. In addition,
         the Contract Special Provisions (23 CFR 230 Appendix A to Subpart A-EEO,
         Appendix B to Subpart A) and the FHWA 1273 require recruitment and
         demonstration of GFE by the contractor.

      51. What specific GFEs should we (Division Office) consider at a
          minimum? Is there a checklist somewhere?

         The Division, at a minimum, in determining GFE should consider the success
         and reasons for the STA’s failure(s) to achieve OJT training goals during the
         past year, as well as, specific corrective action plans for next year. In that
         regard, specific responses should be evaluated against the following questions
         considering the training program as explained in 23 CFR 230.111(b & c):




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           A. Have goals been set considering the minority population in the project
              area?
           B. Has each project achieved its goal of filling approved training slots?
           C. Has the annual training goal been met or exceeded?
           D. Are the training goals realistic based on information obtained from the
              STA?

          There is no specific program checklist. The FHWA Contractor Compliance
          Toolkit provides program guidance and requirements regarding GFEs.

      52. If no minority or female employees are available for the OJT program,
          can we [contractor] substitute a non-minority male?

          The contractor can utilize a non-minority male; however, the primary
          objective of the OJT program is to train minorities, females and disadvantaged
          persons in highway construction classifications. Also, the TSP indicates that
          “The training program is not intended, and shall not be used, to discriminate
          against any applicant for training, whether a member of a minority group or
          not.” (23 CFR Part 230, Appendix B to Subpart A)


      53. What is the sunset date for [OJT] programs or review time frames for
          currently approved programs?

          The “sunset” date for an OJT depends on the training program regarding
          duration and training hours. Also, the sunset date could be reached when no
          further training opportunities exist in the job classification approved for a
          federal-aid project. The minimum length and type of training for each
          classification is established in the training program selected by the contractor
          and approved by the STA and FHWA.

      54. Is it the federal regulation that all OJTs approved by the DOT should be
          within their first year or first term apprenticeship? If so, where is that in
          the federal regulations? If not, according to the federal regulations can
          we approve OJTs who are in their second, third, or fourth year
          apprenticeship?

          According to the FHWA Form 1273-Training and Promotion and 23 CFR
          Appendix B to Subpart A, “Where feasible, 25 percent of apprentices or
          trainees in each occupation shall be in their first year of apprenticeship or
          training.”




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     55. Is there a prohibition against the use of local hiring preferences on
         federal-aid projects, then how do we [State] assist our local
         disadvantaged residents participate on federal projects? If not, we would
         have non-residents receiving economic benefits and we would not see a
         decrease in unemployment in the impacted areas. Any suggestions?

         Yes, there is a prohibition of “local hiring preference” according to 23 CFR
         635.117 (b) which explains that “No procedures or requirement shall be
         imposed by any State which will operate to discriminate against the
         employment of labor from any other State, possession or territory of the
         United States, in the construction of a Federal-aid project.” Assistance of
         local disadvantaged individuals can be addressed through OJT, Supportive
         Service Programs, and through provisions which address Indian Preference
         and Appalachian Development. Also, contractors can use targeted
         recruitment programs through outreach to community-based organizations,
         tradeswomen groups, etc., and establishing partnerships with those
         organizations and agencies.

      56. What about Indian Preference hiring for projects on/near reservations?

         Indian Preference is allowed on and near Indian Reservations impacted by
         Federal-aid projects according to the provisions of 23 U.S.C. 140(d) and 23
         CFR 635.117(d). Tribal, State, and Local governments may take those actions
         necessary to activate those options. Indian Reservations, as defined by the
         United State Department of Interior, include: public domain Indian allotments,
         former Indian reservations in Oklahoma, land held by incorporated Native
         groups, regional corporations, and village corporations under the provisions of
         the Alaska Native Claims Settlement Act. In addition, the March 3, 1993
         FHWA Notice N 4720.7 consolidates the FHWA guidance regarding the
         allowance of Indian preference on projects on and near reservations. The
         Notice also informs the FHWA field staff (Divisions) to work with and
         provide advice, and assistance to STAs, Tribal governments and TERO
         representatives on meeting the intent of 23 USC 140(d).




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      57. What is the role of disability discrimination prohibitions (specifically in
          union agreements) in 23 CFR Part 230, Appendix A to Subpart A: Special
          Provisions for Equal Employment Opportunity Responsibilities?

         Regarding ADA and the union agreement requirements, the FHWA
         regulations 23 CFR 230, Appendix A to Subpart A does not include disability
         for unions to refer persons with disabilities. Only race, color, religion, sex,
         and national origin are listed. However, the FHWA 1273 required Contract
         Provisions states, “The contractor will use its best efforts to incorporate an
         EEO clause into each union agreement to the end that such union will be
         contractually bound to refer applicants without regard to their race, color,
         religion, sex national origin, age or disability”. Therefore, the
         nondiscrimination provisions included in each contract, including Section 8 –
         Unions, also covers disability.




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