New Mexico Administrative Code
Title 11 - LABOR AND WORKERS' COMPENSATION
Chapter 2 - JOB TRAINING
Part 3 - STATE APPRENTICESHIP POLICY MANUAL
Section 11.2.3.28 - PROGRAM COMPLIANCE AND DEREGISTRATION PROCEEDINGS

Universal Citation: 11 NM Admin Code 11.2.3.28

Current through Register Vol. 35, No. 18, September 24, 2024

A. Operation according to approved standards: After a program sponsor has registered the program's standards with the department, the program shall operate in accordance with these standards. Should an operating procedure be desired that is not in accordance with the existing approved standards, the program sponsor is required to submit a proposal pursuant to the procedures set forth in Subsection B of 11.2.3.23 NMAC.

B. Programs not in compliance with department policies: Should a program sponsor not comply with these policies and procedures, the SAA shall take appropriate action. Deregistration of the program shall be used after reasonable efforts to gain compliance have failed.

C. Deregistration of an apprenticeship program: Deregistration of a program may be effected upon the voluntary action of the sponsor by submitting a request for cancellation of the registration in accordance with Paragraph (1) of this subsection or upon reasonable cause, by the department instituting formal deregistration proceedings in accordance with Paragraph (2) of this subsection.

(1) Deregistration at the request of the sponsor: The department 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 effective date thereof;

(b) that, within 15 days of the date of the acknowledgment, the sponsor shall 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 department for information about potential transfer to other registered apprenticeship programs.

(2) Deregistration by the department 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 standards 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 11.2.2 NMAC equal employment opportunity in apprenticeship state plan.

(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 SAA 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 department 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 department must assist the sponsor in every reasonable way to achieve conformity.

(f) If the required correction is not effected within the allotted time, the department must send a notice to the sponsor, by registered or certified mail, return 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 the sponsor has failed or refused to take corrective action; and

(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 department;

(g) If the sponsor does not request a hearing, the department will deregister the program.

(h) If the sponsor requests a hearing, the department will transmit to the administrator a report containing all pertinent facts and circumstances concerning the noncomformity, including the findings and recommendations 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, 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 Subsection D of this section.

(i) 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 federal purposes which require the secretary of labor's approval of an apprenticeship program; and that all apprentices are referred to the department for information about potential transfer to other registered apprenticeship programs.

D. Hearings for deregistration:

(1) Within 10 days of receipt of a request for a hearing, the administrator of the OA shall contact the department's office of administrative law judges to request the designation of the administrative law judge to preside over the hearing. The administrative law judge shall give reasonable notice of such hearing by registered mail, return receipt requested, to the appropriate sponsor. Such notice will include:
(a) a reasonable time and place of hearing;

(b) a statement of the provisions of 11.2.3.28 NMAC pursuant to which the hearing is to be held; and

(c) a concise statement of the matters pursuant to which the action forming the basis of the hearing is proposed to be taken.

(2) The procedures contained in 29 CFR 18 will apply to the disposition of the request for hearing except that:
(a) the administrative law judge will receive, and make part of the record, documentary evidence offered by any party and accepted at the hearing; copies thereof will be made available by the party submitting the documentary evidence to any party to the hearing upon request;

(b) technical rules of evidence will not apply to hearings conducted pursuant to this part, but rules or principles designed to assure production of the most credible evidence available and to subject testimony to test by cross-examination will be applied, where reasonably necessary, by the administrative law judge conducting the hearing; the administrative law judge may exclude irrelevant, immaterial, or unduly repetitious evidence.

(3) The administrative law judge should issue a written decision within 90 days of the close of the hearing record. The administrative law judge's decision constitutes final agency action unless, within 15 days from receipt of the decision, a party dissatisfied with the decision files a petition for review with the administrative review board, specifically identifying the procedure, fact, law or policy to which exception is taken. Any exception not specifically urged is deemed to have been waived. A copy of the petition for review shall be sent to the opposing party at the same time. Thereafter, the decision of the administrative law judge remains final agency action unless the administrative review board, within 30 days of the filing of the petition for review, notifies the parties that it has accepted the case for review. The administrative review board may set a briefing schedule or decide the matter on the record. The administrative review board shall decide any case it accepts for review within 180 days of the close of the record. If not so decided, the administrative law judge's decision constitutes final agency action.

E. Reinstatement of program registration: Any apprenticeship program deregistered under Subsection C of 11.2.3.26 NMAC may be reinstated upon presentation of adequate evidence that the apprenticeship program is operating in accordance with this part. Such evidence shall be presented to the SAC for recommendation to the department for reinstatement.

F. Limitations: Nothing in this part or in any apprenticeship agreement shall operate to invalidate:

(1) any apprenticeship provision in any collective bargaining agreement between employers and employees establishing higher apprenticeship standards; or

(2) any special provision for veterans, minority persons, or women in the standards, apprentice qualifications or operation of the program, or in the apprenticeship agreement, which is not otherwise prohibited by law, executive order, or authorized regulation.

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