The U.S. is in the throes of a skilled-labor shortage. One answer to this problem is centuries old: apprenticeships.
Apprenticeships can fill jobs and add a rung to the ladder of opportunity for people who cannot afford college. Yet many states lift that ladder out of reach by giving preferential treatment to existing apprenticeship programs over proposed new programs. That can change through legislation, federal executive action and litigation.
Many trades train new workers through apprenticeship programs, where people learn on the job while earning a paycheck. But laws regulating apprenticeships have long stifled the creation of new programs that could train more needed workers.
One example is the “needs test.” In multiple states, proposed apprenticeship programs must show that there is a local “need” for their program. This means that existing programs are protected against competition from new programs based on the theory that existing programs already meet industry needs.
Some states even go so far as to allow established programs to file objections against proposed new programs. These “competitors’ vetoes” treat apprenticeship programs unequally, favoring established players (and their affiliated labor unions) over newcomers. Workers miss out on opportunities, consumers face increased costs and the labor shortage drags on.
Beyond legislative reform, there are two ways to push back against these unfair laws: federal executive action and constitutional litigation.
The National Apprenticeship Act, also known as the Fitzgerald Act, empowers the secretary of Labor to cooperate with states’ labor agencies to promote standards for apprenticeships and increase apprenticeship opportunities. Department of Labor regulations create a system where state authorities can act on behalf of the department to register apprenticeship programs for federal purposes — that is, providing apprentice labor for projects operating under federal contracts or grants. The state’s laws must meet certain requirements for the state to be eligible.
This dynamic gives the Labor Department leverage over state laws that restrict access to apprenticeship opportunities. In 2007, for example, the Labor Department ended its partnership with California’s apprenticeship agency due to the creation of a needs test. The department reasoned that the test “limited, rather than promoted, apprenticeship opportunity.”
Despite this, other states with similar needs tests remain federal partners. The first Trump administration sought to promote apprenticeship opportunities, and the second should follow this by pressuring states to drop needs tests in return for continued or renewed partnerships.
There’s also a constitutional path. Pacific Legal Foundation, where we work, brought a 2012 lawsuit challenging California’s needs test, but the law was upheld in a Ninth Circuit decision in a different case the following year. Multiple courts have held that governments cannot shelter established businesses against competition from newcomers, but the Ninth Circuit upheld the needs test on the faulty premise that apprentices may need to have post-apprentice job opportunities protected. This justification holds no water in a climate with an insufficient supply of skilled workers.
This reflects a sad trend in the law: Your right to earn a living for your family takes a backseat to lawmakers’ favored interest groups. Your right to seek education so you can earn a living deserves just as much respect as many other rights we hold dear, like your right to speak freely. To paraphrase a Supreme Court decision, your need to feed your family “may be as keen, if not keener by far, than [your] interest in the day’s most urgent political debate.”
This is especially true for those struggling to make ends meet. Too often, politicians believe that we need to adopt laws that shower marginalized groups with handouts and special favors. But what people really need is a fair shake — a chance to learn a trade and climb the ladder of opportunity. Yet the law often raises that ladder beyond reach. Leveling the playing field for apprenticeship programs will do far more than handouts to empower people to achieve the American Dream.
Something is deeply wrong when we do not have enough workers at the same time families are struggling to put food on the table. We can address both problems by promoting apprenticeship programs.
Much reform is needed of apprenticeship laws to maximize the potential these programs can provide. However, doing away with needs tests and giving equal treatment to existing and proposed apprenticeship programs is a good first step toward greater economic opportunity and lower costs for all.
David J. Hoffa and Ethan W. Blevins are attorneys at Pacific Legal Foundation, a public interest law firm that defends Americans’ liberty against government overreach and abuse.
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