La. Admin. Code tit. 40 § IX-309

Current through Register Vol. 50, No. 11, November 20, 2024

Section IX-309 - Settlement of Controversies or Complaints, Deregistration Proceedings

A. The director of apprenticeship is empowered to investigate possible violations of the terms of an apprenticeship agreement and the standards of apprenticeship that govern such agreements. Such investigation may be based upon the complaint of an interested person, reasonable cause, a request from the state apprenticeship council upon a majority vote, or upon the initiative of the director of apprenticeship. The director of apprenticeship is further empowered to hold hearings, inquiries and other proceedings necessary to such investigations and determinations. Prior to any determination concerning a possible violation of the terms of an apprenticeship agreement or the governing standards of apprenticeship, the director of apprenticeship shall conduct a fact finding.

B. Subsequent to a determination, the director of apprenticeship shall make notification to the state apprenticeship council, and file a fact finding including recommended penalties not resulting in deregistration, with the executive director. If no appeal there from is filed with the executive director within 10 days after the date thereof, such determination shall become the order of the director of apprenticeship.

C. Any person aggrieved by a determination or action of the director of apprenticeship may appeal such action to the executive director who shall hold a hearing thereon, after due notice to the interested parties. Such hearing shall conform to the requirements of the Administrative Procedure Act, R.S. 49:955.

D. Deregistration

1. Deregistration of a program may be effected upon the voluntary action of the sponsor by submitting a request for cancellation in writing to the director of apprenticeship, or upon reasonable cause, by the director of apprenticeship instituting formal deregistration proceedings in accordance with this Section.

2. Deregistration at the Request of the Sponsor. The director of apprenticeship may cancel the registration of an apprenticeship program by written acknowledgment of such request stating the following:

a. the registration is cancelled at the sponsor's request, and the effective date thereof;

b. that, within 15 days of the date of the acknowledgment, the sponsor will notify all apprentices of such cancellation and the effective date; that such cancellation automatically deprives the apprentice of individual registration; that the deregistration of the program removes the apprentice from coverage for federal purposes which require the secretary of Labor's approval of an apprenticeship program, and that all apprentices are referred to the Louisiana Workforce Commission, Apprenticeship Division for information about potential transfer to other registered apprenticeship programs.

3. Deregistration upon Reasonable Cause

a. Deregistration proceedings may be undertaken when the apprenticeship program is not conducted, operated, or administered in accordance with the program's registered provisions or with the requirements of this part, including but not limited to: failure to provide on-the-job learning; failure to provide related instruction; failure to pay the apprentice a progressively increasing schedule of wages consistent with the apprentices skills acquired; or persistent and significant failure to perform successfully. Deregistration proceedings for violation of equal opportunity requirements must be processed in accordance with the provisions under 29 CFR Part 30 and Title 40, Chapter 5.

b. For purposes of this Section, persistent and significant failure to perform successfully occurs when a program sponsor consistently fails to register at least one apprentice, shows a pattern of poor quality assessment results over a period of several years, demonstrates an ongoing pattern of very low completion rates over a period of several years, or shows no indication of improvement in the areas identified by the Apprenticeship Division during a review process as requiring corrective action.

c. Where it appears the program is not being operated in accordance with the registered standards or with requirements of this Part, the Apprenticeship Division must notify the program sponsor in writing.

d. The notice sent to the program sponsor's contact person must:

i. be sent by registered or certified mail, with return receipt requested;

ii. state the shortcoming(s) and the remedy required; and

iii. state that a determination of reasonable cause for deregistration will be made unless corrective action is effected within 30 days.

e. Upon request by the sponsor for good cause, the 30-day term may be extended for another 30 days. During the period for corrective action, the Apprenticeship Division shall assist the sponsor in every reasonable way to achieve conformity.

f. If the required correction is not effected within the allotted time, the Apprenticeship Division must send a notice to the sponsor, by registered or certified mail, return receipt requested, stating the following:

i. the notice is sent under this Paragraph;

ii. certain deficiencies were called to the sponsor's attention (enumerating them and the remedial measures requested, with the dates of such occasions and letters), and that the sponsor has failed or refused to effect correction;

iii. based upon the stated deficiencies and failure to remedy them, a determination has been made that there is reasonable cause to deregister the program and the program may be deregistered unless, within 15 days of the receipt of this notice, the sponsor requests a hearing with the applicable Apprenticeship Division; and

iv. if the sponsor does not request a hearing, the entire matter will be submitted to the Administrator, Office of Apprenticeship, for a decision on the record with respect to deregistration.

g. If the sponsor does not request a hearing, the Apprenticeship Division will transmit to the administrator a report containing all pertinent facts and circumstances concerning the non-conformity, including the findings and recommendation for deregistration, and copies of all relevant documents and records. Statements concerning interviews, meetings and conferences will include the time, date, place, and persons present. The administrator will make a final order on the basis of the record presented.

h. If the sponsor requests a hearing, the Apprenticeship Division will follow the grievance procedures outlined in Subsection C of this Section and refer the matter to the executive director.

i. If, based upon the evidence and testimony presented, the executive director upholds the determination of the director of apprenticeship, the decision shall be conclusive if no appeal there from is filed within 30 days after the date of the order or decision. The sponsor has the right to further appeal the decision to the administrator, Office of Apprenticeship. The Apprenticeship Division will transmit to the administrator a report containing all the data listed in Subparagraph D.3.g of this Section, and the administrator will refer the matter to the Office of Administrative Law Judges. An administrative law judge will convene a hearing in accordance with 29 CFR §29 . 10, and issue a decision as required in 29 CFR § 29.10 (c).

4. Every order of deregistration must contain a provision that the sponsor must, within 15 days of the effective date of the order, notify all registered apprentices of the deregistration of the program; the effective date thereof; that such cancellation automatically deprives the apprentice of individual registration; that the deregistration removes the apprentice from coverage for state and federal purposes which require the director of apprenticeship's approval of an apprenticeship program; and that all apprentices are referred to the Apprenticeship Division for information about potential transfer to other registered apprenticeship programs.

5. Reinstatement of Program Registration. Any apprenticeship program deregistered under this Section and 29 CFR § 29.8 may be reinstated upon presentation of adequate evidence that the apprenticeship program is operating in accordance with this Part. Such evidence must be presented to the Louisiana Workforce Commission, Apprenticeship Division for consideration.

6. No person shall institute any action for the enforcement of any apprenticeship agreement, or for damages for the breach thereof unless all administrative remedies provided in these rules have first been exhausted.

La. Admin. Code tit. 40, § IX-309

Promulgated by the Department of Labor, Office of Labor, LR 12:431 (July 1986), amended LR 17:356 (April 1991), amended by the Louisiana Workforce Commission, Office of Workforce Development, LR 37:2214 (July 2011).

AUTHORITY NOTE: Promulgated in accordance with R.S. 23:381-391.