Attorney General's Opinion
Attorney General, Richard Blumenthal
November 8, 2005
Honorable Shaun B. Cashman
Department of Labor
200 Folly Brook Boulevard
Wethersfield, CT 06109-1114
Hartford, CT 06106
Dear Commissioner Cashman:
This will acknowledge and reply to your request on behalf of the State Apprenticeship Council (SAC) for a formal opinion concerning the propriety of the issuance of apprenticeship registrations by an agency other than the Department of Labor (DOL), in particular the State Apprenticeship Council (SAC) or the Department of Consumer Protection (DCP). For the following reasons it is our opinion that DOL has the exclusive statutory authority over registration of apprenticeship programs and apprentices.
Federal Department of Labor Regulation 29 C.F.R. § 29.12(b) requires the State to establish its apprenticeship agency within the State Department of Labor. To obtain the approval of its apprenticeship program by the Federal Department of Labor's Bureau of Apprenticeship and Training (BAT), DOL was required to submit acceptable state law and regulations pursuant thereto, an acceptable membership composition of the State Apprenticeship Council, an acceptable state plan for equal employment opportunity in apprenticeship, a description of the basic standards for program registration, and other policies and procedures. DOL met all requirements, including its promulgation of Regs. Conn. Agencies, D.O.L., §§ 31-51d-1, et seq. (1980) and 46a-68-1, et seq. (1982), "Commissioner of Labor's Work Training Standards for Apprenticeship and Training Programs and Equal Employment Opportunity in Apprenticeship and Training," and the BAT approved Connecticut's apprenticeship program.1
Chapter 557, Part Ia of the Connecticut General Statutes sets forth the statutory authority for oversight of Connecticut's apprenticeship program, enumerating responsibilities for the Department of Labor and the State Apprenticeship Council. A review of Chapter 557 establishes DOL's exclusive authority to register apprenticeship programs and apprentices and operate the administrative machinery necessary to conduct Connecticut's apprenticeship program.2
Conn. Gen. Stat. § 31-22r(a)(1) explicitly states that "[e]ach person who is registered as an apprentice with the Labor Department" shall pay a registration fee. Subsection (a)(2) requires an annual renewal registration fee from"[e]ach person who initially registered as an apprentice with the Labor Department" and subsection (b) requires a fee from "[e]ach person sponsoring an apprenticeship program registered with the Labor Department." Section 31-22r (b) also refers to deregistration of apprenticeship programs for cause by DOL in accordance with regulations adopted pursuant to the apprenticeship statutes. Section 31-22r(c) provides for the registration fees collected by DOL to be credited to a separate non-lapsing appropriation to DOL for the purpose of administering its apprentice training program and the state apprenticeship statutes. Conn. Gen. Stat. § 31-22s requires the Labor Commissioner to report to the legislature regarding the feasibility of establishing an on-line system for registering apprentices and apprenticeship programs with the Labor Department. Furthermore, Conn. Gen. Stat. § 31-22p provides for the Labor Commissioner to formulate work training standards to provide training for workers and inclusion of the standards in apprenticeship agreements. In turn, Conn. Gen. Stat. § 31-22q provides for continuation of a program of apprentice training in DOL to assist in the administration of the apprenticeship statutes and the authority of the Labor Commissioner to appoint personnel for the effective administration of those statutes.
DOL's regulations also establish the full responsibility of DOL for registration of apprenticeship programs and agreements. The regulations specifically provide for DOL to administer the state's program of apprenticeship training and register apprenticeship programs and agreements with individual apprentices. Section 31-51d-2(b) defines DOL as the registration agency for all programs. Similarly, § 31-51d-2(o) defines registration of an apprentice program as DOL's acceptance and recording of a program as meeting the Commissioner's standards for approval of programs where required for federal or state purposes. Evidence of approval is formal written notice from the Commissioner's office. Section 31-51d-2(p) in turn defines registration of an apprentice as the Commissioner's acceptance and recording of a duly executed apprenticeship agreement as evidence of participation in a bona fide registered apprenticeship program for state or federal purposes. An administrative agency's regulations are presumed valid and, unless they are shown to be inconsistent with the authorizing statute, they have the force and effect of a statute. Andersen Consulting, LLP v. Gavin, 255 Conn. 498, 520 n. 15, 767 A.2d 692, 705 n. 15 (2001); Mass v. United States Fidelity & Guaranty Co., 222 Conn. 631, 649, 610 A.2d 1185, 1194 (1992). Moreover, if a regulation has existed for a substantial time and the legislature has not sought to override it, this fact, while not determinative, provides persuasive evidence of its continued validity. State v. March, 265 Conn. 697, 708, 830 A.2d 212, 219 (2003). Finally, courts afford deference to an agency's interpretation of its statutory authority. JSF Promotions, Inc. v. Administrator, Unemployment Compensation Act, 265 Conn. 413, 418, 828 A.2d 609, 613 (2003); Rinaldi v. Enfield, 82 Conn. App. 505, 511, 844 A.2d 949, 952 (2004).
In contrast to the numerous statutory references to DOL's authority to register apprentices and apprenticeship programs and agreements with individual apprentices and conduct the administrative functions necessary for such a registration program, the State Apprenticeship Council's statutory responsibilities are advisory and policy directed. In describing the powers and duties of the SAC, Conn. Gen. Stat. §31-22o states that the Council "may adopt recommendations for minimum standards of apprenticeship and for related and supplementary instruction, encourage registration and approval of apprenticeship agreements and training programs and issue certificates of completion . . . The Council shall formulate policies for the effective administration of sections 31-22m to 31-22q, inclusive." (emphasis added). The powers conferred on the SAC by the Connecticut General Assembly do not provide the SAC the authority to register apprentices and apprenticeship programs or operate the administrative machinery necessary to do so.3
While 29 C.F.R. § 29.12(a) refers to federal recognition of a State Apprenticeship Agency or Council (SAC), it is clear that 29 C.F.R. §29.12(b) left to the states the decision of which state entity would administer individual states' apprenticeship programs. The federal apprenticeship regulations do not confer on the Council an independent source of authority to conduct the practical, day-to-day administration of apprenticeship programs or register apprentices, apprenticeship programs and agreements with apprentices.4 To the contrary, numerous provisions of the federal apprenticeship regulations make clear that the SAC's authority may be limited by state statute, such as Connecticut's, to making or recommending policy and assuring compatibility of state requirements and apprenticeship programs with federal law, instead of administering registration of apprentices and apprenticeship programs. For example, the reference in § 29.12(a) to the authority of SAC to determine whether an apprenticeship program conforms with the U.S. Secretary of Labor's published standards extends the SAC's authority only to its approval of programs as consistent with federal requirements and does not confer on the SAC authority to actually register apprenticeship programs and apprentices.
Similarly, Section 29.12(a)(2) of the federal regulations contains a requirement for acceptable composition of the SAC for federal recognition, which includes persons familiar with apprenticeable occupations, equal numbers of representatives of employer and employee organizations, and public members not to exceed the number of employer or employer organization representatives. The regulation distinguishes between the SAC and a different state entity that may operate the apprenticeship program, concluding that if “the State official who directs the apprenticeship operation is a member of the council,” he may be given a tie-breaking vote.
Furthermore, Section 29.12(b)(3) requires acceptable state provisions to delineate clearly the respective powers and duties of the state official directing operation of the apprenticeship program and the SAC, clearly contemplating a possible separation of functions under state law between the apprenticeship program and the SAC. Finally, the federal government's determination to leave to the states the assignment of authority over the administration of apprenticeship programs is confirmed by § 29.12(b)(4), which requires clear designation of the officer or body authorized to register and deregister apprenticeship programs and agreements. As stated previously, Connecticut law has designated the Department of Labor to perform these functions, not the SAC. There is no federal law which would confer this authority on the SAC in a manner contrary to Connecticut statutes and regulations.
In regard to the authority of the Department of Consumer Protection (DCP) in apprenticeship matters, DCP's statutory responsibilities focus upon licensing boards issuing licenses for certain trades upon examinations. Conn. Gen. Stat. §§ 20-330 through 20-335. DCP's licensing authority specifically refers to the DOL's authority over apprenticeship programs and registration of apprentices: Conn. Gen. Stat. § 20-330(6) defines “apprentice” as “any person registered with the Labor Department for the purpose of learning a skilled trade.” (emphasis added). “No person shall engage in, practice or offer to perform the work of any occupation subject to this chapter in this state unless such person has first obtained a license as provided in section 20-333, or possesses a card of registration from the Labor Department or the board and is subject to all of the regulations adopted under this chapter for the purpose of governing apprenticeship training.” Conn. Gen. Stat. § 20-334(a). (emphasis added).
Although § 20-334(a) refers to regulations the DCP may adopt concerning governing apprenticeship training, no such regulations pertaining to registration of apprentices have been adopted by DCP.5 In fact, the only regulation promulgated by DCP that refers to registration of apprentices prohibits an apprentice from performing the work of an occupation covered by Chapter 393 unless he has obtained a card of registration from DOL. Section 20-332-15a(f)(1).
Finally, DCP's statutes refer to issuance of apprentice permits as distinguished from registration of apprentices in apprenticeship programs. DCP-issued apprentice permits and cards enable individuals to remain employed after completing their apprenticeship. However, they do not constitute apprentice registrations, which are issued by DOL exclusively for a finite period of time. Thus, § 20-334a(a)(4), provides for issuance of an apprentice permit to perform work in a licensed trade, for the purpose of training, to be performed only under the supervision of a licensed contractor or journeyman. In turn § 20-334a(a)(5) requires expiration of an apprentice permit upon the apprentice's failure to apply for the first licensure examination given by DCP following completion of an apprentice training program as provided in § 20-334a(a)(2). Pursuant to the above analysis, this office concludes that DOL has exclusive authority for registration of apprenticeship programs and apprentices in Connecticut.
Assistant Attorney General
1DOL's regulations define “apprentice” as a person receiving skill training under a written agreement providing specific terms of apprenticeship and employment and “apprentice agreement” as a written agreement entered into by an apprentice with an employer, which meets specific training requirements. Regs. Conn. Agencies, D.O.L., §§ 31-51d-2(e), (i) (1980).
2Connecticut apprenticeship statutes, Conn. Gen. Stat. §§ 31-51a through 31-51e and 31-51j, have recently been renumbered without substantive change as Conn. Gen. Stat. §§ 31-22m through 31-22q and 31-22t.
3Although Conn. Gen. Stat. § 31-22o states that "All programs adopted and registered with the Council under said sections [sections 31-22m-31-22q] shall be on a voluntary basis," sections 31-22m to 31-22q specifically provide for mandatory registration of programs with the DOL, not the SAC.
429 C.F.R. § 29.12(a) provides: “The Secretary's recognition of a State Apprenticeship Agency or Council (SAC) gives the SAC the authority to determine whether an apprenticeship program conforms with the Secretary's published standards and the program is, therefore, eligible for those Federal purposes which require such a determination by the Secretary.”
5The reference in § 20-334(a) to a card of registration “from the Labor Department or the board” (emphasis added) acknowledges DOL's registration of apprentices but does not authorize separate registration authority for licensing boards, absent an express statutory amendment to DCP's statutes establishing a registration program similar to that found in Conn. Gen. Stat. §§ 31-22m to 31- 22q, and requiring registration with both the DOL and the DCP.