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STW
OPPORTUNITIES AND THE FAIR LABOR STANDARDS ACT: |
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TABLE OF CONTENTS
PART II. UNDERSTANDING THE FAIR LABOR STANDARDS ACT
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A
GUIDE TO WORK-BASED LEARNING, FEDERAL CHILD LABOR LAWS, From its inception, the Fair Labor Standards Act has protected the rights, safety and well-being of youth workers in the United States. With the passage of the School-to-Work Opportunities Act in 1994, questions have arisen concerning whether a student's work-based learning experience is covered under the Fair Labor Standards Act. Our goal in producing this guide is to assist you - the employers, educators, agency placement staff, labor organizations and all those who make School-toWork (STW) systems possible. STW initiatives cover a wide range of activities, some of which are subject to FLSA and some of which are not. FLSA specifies particular limits on the employment of minors under the age of 18. Under the School-to-Work Opportunities Act, no waivers of FLSA are permitted. However, participation in a STW initiative carries no additional compliance obligations under FLSA; working with STW students is just like working with other minors. You'll want to read this guide in its entirety to become aware of the issues, noting also the possible application of State and local laws. Because the particulars of each work-based learning experience may differ, the total picture - and the legal terminology - must be taken into account to determine when FLSA applies. If, after reading the guide, you believe yours is not a clear-cut case, we urge you to contact the appropriate Wage-Hour Division Office. The guide addresses issues related to student learning experiences at an employer's worksite and explains when and how Federal child labor laws and minimum wage provisions apply. It is organized in three parts:
WORK-BASED LEARNING Part I explains a variety of student learning experiences that may take place at an employer's worksite. Some learning experiences may not be employment relationships. The elements and criteria of such learning experiences are discussed here. #1. WHAT IS WORK-BASED LEARNING UNDER STW? Work-based learning - a learning experience for a student at an employer's worksite - is one of the three core elements of STW systems, along with school-based learning and connecting activities. It includes work experience (both paid and unpaid), workplace mentoring, and broad instruction, to the extent practicable, in all aspects of an industry. In addition, work-based learning includes a planned program of job training and work experience at progressively higher levels. This planned program, coordinated with school-based learning, relates to the career majors of students and leads to the award of skill certificates. Instruction in general workplace competencies - including developing positive work attitudes, employability, and participative skills - is also part of the work-based learning component of STW. #2. ARE ALL STW WORK-BASED LEARNING EXPERIENCES SUBJECT TO FLSA? No. Activities occurring in the workplace that do not involve the performance of work are not "employment" subject to the Fair Labor Standards Act. Some examples of these activities include:
a. What are the elements of a learning experience at an employer's worksite? There are four elements that constitute a learning experience under STW. Specifically, a learning experience:
If only some of these elements are met, it is possible that an STW student would be an employee under FLSA; however, all of the facts and circumstances of the situation would have to be considered to decide if an employment relationship exists and whether the student or enterprise is covered by the FLSA. The Wage-Hour Offices can help you make the correct determination. b. When is a learning experience not employment, as defined by FLSA? A student enrolled in an STW learning experience as described above would not be considered an employee within the meaning of FLSA if all of the following criteria are met:
When all four of the above student criteria are met, an employer would not be required to pay wages to a student enrolled in an STW learning experience. c. What does it mean if a learning experience is not subject to FLSA? It means that a student is not an employee, wages are not paid, and Federal child labor laws do not apply. Payment of a stipend is optional. However, a stipend may not be used as a substitute for wages. A stipend is generally limited to reimbursement for expenses such as books, tuition, or tools. There are no specific stipulations for the length of a learning experience, as long as the four criteria listed above apply throughout the period of the student's participation. While child labor laws do not apply if there is not an employment relationship, STW systems are encouraged to adhere to child labor laws with regard to hazardous working conditions. Instruction and training in occupations that involve the use of machinery such as slicing machines, trash compactors, and bread dough kneading machines have been known to cause serious injuries. Child labor laws provide guidance that can assist STW participants in determining hazardous jobs or working conditions for students. (See Exhibits in Part II.)
UNDERSTANDING THE FAIR LABOR STANDARDS ACT Part II applies to those STW situations where it is determined that (1) an employment relationship exists *, and (2) the enterprise or the student is covered under FLSA. Both conditions must be met for STW work-based learning experiences to be subject to the Federal minimum wage, overtime, and child labor laws described in this section. Participation in an STW initiative carries no additional compliance obligations under FLSA; working with STW students is the same as working with other minors. #3. WHEN IS A WORK-BASED LEARNING EXPERIENCE SUBJECT TO FLSA? Learning experiences that do not meet all four student criteria are employment relationships. According to the Fair Labor Standards Act, the definition of "to employ" is "to suffer or permit to work." Case law states that an employment relationship "does not depend upon the level of performance or whether the work is of some educational and/or therapeutic benefit." ** a. When is a student who is an employee "covered" under FLSA? The FLSA covers employees who are performing work for any one type of enterprise that is either:
A covered enterprise under FLSA would be one:
b. Can a student be covered, even if the enterprise is not? Yes. An enterprise may not be covered under FLSA, given the above criteria, but certain employees of the enterprise may be, depending on the nature of their work. Specifically, if any employee is engaged in interstate commerce, this employee is covered and the provisions of FLSA apply to him or her. Examples of interstate commerce include taking or placing out-of-state phone calls; sorting or sending out-of-state mail; receiving papers coming from out-of-state; and handling, shipping, and receiving products that are moving in interstate commerce. (For more information on coverage, see the Handy Reference Guide to the Fair Labor Standards Act, or call the Wage-Hour Division Office. When calling, give detailed information on the particular situation because coverage depends upon the specific facts of each case.) #4. WHAT ARE THE IMPLICATIONS OF AN EMPLOYMENT RELATIONSHIP "COVERED" UNDER FLSA? When a student who is an employee is covered by FLSA, he or she must be paid no less than the Federal minimum wage ***, receive no less than one and one-half times the regular rates of pay for each hour worked in excess of 40 per workweek, and be employed in accordance with child labor laws.
#5. WHAT ARE THE STANDARDS AND SPECIAL PROVISIONS FOR EMPLOYING MINORS? Once it is determined that there is an employment relationship that is covered by FLSA, then certain standards and limitations apply to the employment of STW students, according to their age. Exhibits 1, 2, and 3 explain the standards and related special provisions in nonagricultural occupations for youth ages 14 and older, while Exhibit 4 lists the standards for farm jobs. a. Are there any exceptions to the standards? Yes, there are exceptions for student-learners and apprentices. A "student-learner" is one who is enrolled in a course of study and training in a cooperative vocational training program under a recognized State or local educational authority or in a course of study in a substantially similar program conducted by a private school. An apprentice is a participant in an apprenticeship program legally registered by the Department of Labor's Bureau of Apprenticeship and Training or by an authorized State agency. To qualify as an apprentice, one must obtain the appropriate certificate from the local U.S. Department of Labor Bureau of Apprenticeship and Training (BAT) office, or a state office approved by BAT. The Work Experience and Career Exploration Program (WECEP) also includes special provisions that permit 14- and 15-year-old STW enrollees to be employed during school hours and in occupations otherwise prohibited by regulation. (See Exhibit 3.) In addition, if your school or business holds a subminimum wage certificate issued by Wage-Hour, it may pay the following individuals a subminimum wage: students with disabilities participating in a school-related work program; student-learners in a vocational education program; and full-time students in retail or service establishments, agriculture, or institutions of higher education. b. May students under age 14 participate in STW Programs? Yes. Students under age 14 may participate in education and training activities. These may include, but are not limited to, presentations in the classroom by employers and employees, field trips to businesses, and job shadowing (whereby a student follows and observes an employee in his/her daily activities, but performs no work). In general, students under age 14 may not be employed in nonfarm jobs under FLSA. Therefore, while they may participate in school-to-work education and training activities, employment subject to FLSA may not be a component of their program. c. May agricultural activities be included in STW Programs? Yes, but the standards for agricultural programs differ by the age of the students. Youths under age 16 enrolled in STW activities may be employed on farm jobs, but the child labor regulations contain limitations on their employment and generally limit work to periods outside local public school hours. Students 16 years of age and older may be employed in any farm job at any time. Exhibit 4 explains the child labor requirements for farm jobs. For more information concerning the employment of minors in agriculture, contact the Wage and Hour Division, or see The Child Labor Requirements in Agriculture Under the Fair Labor Standards Act, Child Labor Bulletin No. 102. #6. ARE MINORS PERMITTED TO DRIVE ON THE JOB? No. For nonfarm jobs, almost all driving of motor vehicles on public roads and highways is prohibited by Hazardous Occupations Order 2 (HO 2). (See Exhibit 1.) The driving restriction even applies to student-learners and apprentices who, based on special provisions, are allowed to work in certain hazardous occupations. So, for example, a roofer apprentice would be allowed to perform some roofing work, but HO 2 would prohibit him or her from driving a company truck to and from job sites. For farm jobs, minors may drive on the farm, but not on a public highway. (Certain restrictions apply to minors under age 16 driving farm equipment.) a. Are any exceptions made? Driving that is "occasional and incidental" is permitted under FLSA. Specifically, driving is "incidental" if it is limited to no more than 20% of the minor's work in any workday and does not exceed 5% of the minor's work time in any workweek when performed. Driving is "occasional" if the minor drove (a single episode of operating a motor vehicle on public roads or highways as part of his or her employment) on average no more often than once in a workweek or no more often than four times in a calendar month. b. What about home-to-work travel? No restrictions are placed on home-to-work driving for students who have valid drivers licenses and are driving their own personal vehicles, because such activity is outside of work hours and thus not covered by FLSA. #7. IS PROOF OF AGE REQUIRED UNDER FLSA? FLSA requires employers to keep on file the date of birth of every employee under age 19. Because there may be cases where a minor could give an employer a false date of birth, and the employer thus unwittingly violates the minimum age standards of FLSA, we strongly encourage employers to obtain an official age certificate that proves the validity of the date of birth. The certificate may be: (1) a Federal certificate of age, issued by the Wage-Hour Division; or (2) a State certificate, known as an age, employment, or working certificate or permit, issued by the appropriate State agency. (Please note that some States have laws requiring that the official age certificate be kept on file by the employer.)
GENERAL INFORMATION Part III highlights pertinent information on State and local laws, waivers, terminology, and resources available on FLSA. #8. WHAT ABOUT STATE AND LOCAL LAWS? When there are differences among Federal or State laws or regulations, or municipal ordinances, the stricter standard applies. For instance, one State has no minimum wage law; in this case, the Federal minimum wage applies. In another State, the minimum wage is $.50 more than the Federal minimum wage - thus the State's minimum wage applies. (Because it is beyond the scope of this guide to address each situation, we urge you to contact your State labor department to ensure that you are in compliance with the appropriate law.) #9. ARE THERE WAIVERS OF FLSA? No! While Title V of the School-to-Work Opportunities Act does allow for the possibility of waivers for certain statutory and regulatory requirements, these do not apply to the Fair Labor Standards Act. In fact, the law specifically prohibits the Secretaries from waiving any statutory or regulatory requirement under any provision relating to labor standards and occupational safety and health. Thus, if your situation involves an employment relationship and the work is covered by FLSA, you must meet all statutory and regulatory requirements for the employment of minors. #10. HOW IMPORTANT IS TERMINOLOGY? Terminology is very important because misunderstandings can often occur. School-to-Work systems have already developed a vocabulary which may be different from the terminology used under FLSA. Thus, caution should be exercised in using terminology. For instance, it is common for teachers, who have had unpaid internships, to assume that other positions can be called internships, and thus are not covered. This is not the case. As it relates to school-to-work programs, only those meeting the learning experience elements and student criteria are not covered by FLSA. We encourage you to contact Wage-Hour staff if you have any questions about terminology. They can help clarify the definitions of apprentice, employment relationship, enterprise, hazardous occupations, internship, interstate commerce, minor, stipend, student-learner, trainee, work experience, and other terms used under FLSA. #11. WHAT RESOURCES ARE AVAILABLE ON FLSA? The following resources on FLSA are available from the U.S. Department of Labor WageHour Divisions listed on Page 19:
The following resource can be obtained by calling NIOSH (1-800-356-4674):
#12. WHOM CAN WE CONTACT FOR ASSISTANCE? The Wage and Hour Division, which is part of the Employment Standards Administration of the U.S. Department of Labor, administers several labor laws including the Fair Labor Standards Act, the Family and Medical Leave Act, the Davis Bacon Act, the McNamara-O'Hara Service Contract Act, the Migrant and Seasonal Agricultural Worker Protection Act, and the Employee Polygraph Protection Act. The Wage and Hour Division is committed to assisting with the proper administration of STW programs. The Wage-Hour Offices can be contacted for informational and technical assistance at any level. They will assist State offices that administer STW programs and any of the local partners involved in STW system implementation. Specifically, Wage-Hour staff can help delineate the issues of a work-based learning experience and help make the correct determinations regarding FLSA application and compliance. They share an interest in promoting safe education experiences that enhance the success of youth in making the school-to-work transition and becoming effective and productive workforce participants. As partners in this effort, Wage-Hour staff are both committed to protecting the rights, safety, and well-being of youth workers and to serving you - the partners who are vital to the success of School-to-Work Opportunities.
FOR FURTHER INFORMATION ON FLSA, CONTACT: U.S.
Department of Labor Employment Standards Administration, Wage - Hour Division
School-to-Work Opportunities The School-to-Work Opportunities Act of 1994 (P.L. 103-239) paves the way for a new approach to learning in America. Through this Act, States and localities will build high quality school-to-work opportunities systems that prepare young people for further education and careers in high-skill, high-wage jobs. School-to Work is based on the proven concept that education for all students can be made more relevant and useful to future careers and lifelong learning. Rather than just memorizing facts out of a textbook, students will learn by applying what they learn to real life, real work situations. Developed with the input of business, education, labor and community-based organizations that have a strong interest in how American students prepare for the changing world of work in the 21st century, the effort to create a national school-to-work system contains three fundamental elements:
School-to-Work is jointly administered by the U.S. Departments of Education and Labor. For information regarding School-to-Work Opportunities, call the School-to-Work Offices at (202) 401-6222.
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