1 Carol Jurgens Nebraska Department of Education 402-471-0948 firstname.lastname@example.org www.nde.state.ne.us/TECHPREP/WBL
2 Effective and Legal WBL Experiences Effective Experiences “Employment” of Youth Under 18 Insurance/Liability Transportation Health/Safety Federal Fair Labor Standards Act (FLSA) –Wage & Hour Law –Child Labor Law
3 Effective WBL Experiences... Help verify career direction Strengthen workplace competencies Bring relevance to academic learning Develop awareness of new and emerging high-tech, high wage jobs Clarify postsecondary education plans
4 Purpose of Brochures Quick reference and resource Simplified interpretation for use by –Educators, Employers, Policymakers, Parents NOT a legal interpretation NOT a substitute for legal advice Obtain resources for detailed info
5 “Employment” of Youth Under Age 18 Is there an “employment relationship”? PAID ROLES Student Learner Apprentice Employee UNPAID ROLES Student/Visitor/Observer Volunteer Unpaid Trainee
6 “Employment” of Youth Under Age 18 An “employment relationship” exists PAID ROLES Student Learner Participant enrolled in a cooperative training program under a recognized state/local educational authority or private school, e.g., COOP. Apprentice Participant employed in a craft recognized by BAT. Employee Participant hired by private or public employer to perform work. No structured relationship between school and work.
7 “Employment” of Youth Under Age 18 There is NOT an “employment relationship” Student/Visitor/Observer Participant visits the work site to observe and learn about career, work activity or other aspects of an industry. Volunteer Participant serves unpaid for public service or humanitarian objectives. Unpaid Trainee Participant is trained at a business/industry work site without compensation. UNPAID ROLES
8 Insurance/Liability Worker’s Compensation Paid cooperative education and apprenticeship participants covered. Unpaid trainees and volunteers ordinarily NOT covered. Worker benefits limited by statute. Insurance Coverage
9 Insurance/Liability Coverage for Lawsuits Company’s general liability policy covers company and employees. Endorsement may extend coverage to visitors, volunteers, unpaid trainees. Insurance Coverage (cont.) Injury to Participants Employees covered by Worker’s Compensation. Students/visitors, volunteers, or unpaid trainees expenses covered by the individual, parents, or company’s health insurance or general liability policy.
10 Insurance/Liability Indemnification Agreements Used to shift financial burden for injuries/damage from one party to another, e.g., insurance policy. Liability Shields Waivers Not effective tools – courts seldom allow them to excuse negligence or duty owed a minor. Consent Forms Generally upheld by courts – however – they do not excuse a company/school from responsibility for its own negligence. Permission Slips Well-informed parent/guardian is less likely to bring suit.
12 Transportation Verify driver’s license & insurance coverage Limit transportation to student driver (no passengers) Limit transportation for the sole purpose of getting to and from work site Have parents sign transportation agreement Conditions for WBL Student Driver
13 Health/Safety Safety Instruction Fire procedures Proper equipment operation – supervised Safety rules Reporting unsafe working conditions Keeping work area clean and orderly Medical Health and safety measures, e.g., immunizations. Determine who pays. In unpaid WBL experiences, the school must provide the required health and safety measures. Check with your risk management personnel lst.
14 FLSA Federal Fair Labor Standards Act engaged in interstate commerce. producing goods for interstate commerce. handling, selling, or otherwise working on goods or materials that have been moved or produced for interstate commerce. Who Is Covered? Employees who work for any one type of enterprise that is either:
15 FLSA Federal Fair Labor Standards Act Who Does It Apply To? all 50 states 90% of all non-agricultural businesses all businesses with annual gross sales of > $500,000 all hospitals, schools and public agencies
16 FLSA Federal Fair Labor Standards Act under a contract of hire - written or oral - expressed or implied Employment Defined to suffer or permit to work (paid)
17 FLSA Federal Fair Labor Standards Act Employment Relationship FLSA Covered Student and/or Enterprise Conformance to Federal CHILD LABOR LAWS OR State/local laws if more protective Conformance to Federal WAGE & HOUR LAW OR State/local laws if more protective + = NO FLSA WAIVERS
18 FLSA Wage and Hour Law UNPAID LEARNING EXPERIENCES Student Learners Volunteers Volunteers Under An IEP
19 FLSA - Wage and Hour Law UNPAID LEARNING EXPERIENCES Not employment if ALL the following are met: Training is progressive - similar to vocational school. Experience is for the benefit of the student learner. Student does not displace a regular worker. No direct benefits to employer - student productivity is offset by employer’s burden to provide on going work site instruction and supervision. Student is not entitled to a job at the end of the learning experience. Employer/student/parent understand student is not entitled to wages or other compensation for their time (may be paid stipend for expenses, e.g., books/tools). Student Learners
20 FLSA - Wage and Hour Law UNPAID LEARNING EXPERIENCES Not employees Not paid Generally cannot volunteer to do same job he/she is paid to do School cannot legally require students to volunteer or perform unpaid service as a way: - to gain vocational experience - satisfy graduation requirements, or - any other purpose Volunteers
21 FLSA - Wage and Hour Law UNPAID LEARNING EXPERIENCES Volunteers Under an IEP As a general rule, for students with disabilities, unpaid experiences in each component will not exceed during any one school year: Vocational Exploration - 5 hours per job experience Vocational Assessment - 90 hours per job experience Vocational Training - 120 hours per job experience
22 FLSA - Wage and Hour Law UNPAID LEARNING EXPERIENCES Volunteers Under an IEP (cont) Unpaid community-based learning opportunities for students with disabilities must meet ALL the following criteria: Student is placed according to his/her IEP. Time per week at the work site meets IEP requirement. Supervised provided by school and/or business. Student does not displace any regular employee. Business derives no immediate benefit/advantage from the work of the student. Student is not entitled to a job at the end of the training period.
23 FLSA - Wage and Hour Law PAID WORK EXPERIENCES Tip Credit At least $2.13 per hour At least the minimum wage/hour with employee’s tips Minimum Wage $5.15 per hour on 9/1/97 Overtime = 1.5 x regular pay > 40 hr/week Youth Subminimum Wage Under 20 years old $4.25 per hour lst 90 consecutive calendar days of employment
24 FLSA - Wage and Hour Law PAID WORK EXPERIENCES 2. Students with Severe Disabilities... can be paid wages commensurate to their individual productivity under the Special Education School Work Experience Certificate. Subminimum Wage 1.Full-time Students... employed by certified retail or service firms, agriculture or institutions of higher education may be paid 85% of applicable minimum wage.
25 FLSA - Wage and Hour Law PAID WORK EXPERIENCES 4.Apprentices... in an apprenticeship registered with the DOL may be paid 50% of the journeyman’s rate as authorized by the apprenticeship agreement. Subminimum Wage (cont) 3.Part-time Student Learners... in a bona fide vocational training program may be paid 75% of the applicable minimum wage under certain conditions.
26 FLSA - Child Labor Laws Non-Agricultural Employment Affect the employment of nearly all working minors with a few exemptions. Two Categories Agricultural Employment Less restrictive than non-agricultural employment. Agriculture, as defined by the FLSA.... includes farming in all its branches... performed by a farmer or on a farm as an incident to or in conjunction with such farming occupations...
27 FLSA - Child Labor Laws Non-Agricultural Employment Exempt Occupations/Situations Children < 16 years of age employed by their parents in other than the DOL 17 hazardous occupations. Children employed as actors or performers in motion pictures, theatrical, radio, or TV productions. Children engaged in the delivery of newspapers to the consumer. Homeworkers making evergreen wreaths (including harvesting of evergreens). Domestic service employees working in or about the household of the employer.
28 FLSA - Child Labor Laws - Non-Agricultural Employment Age Limitations UNDER 14 YEARS OF AGE... May work only if their jobs are exempt from child labor standards or are not covered by the FLSA.
29 FLSA - Child Labor Laws - Non-Agricultural Employment Age Limitations 14 and 15 YEAR OLDS... May perform... –office work –various food service jobs –sale & some other jobs in retail stores –errand/delivery work by foot/bicycle/public trans. –gas station work - dispensing gas/oil - courtesy work Work cannot exceed – 3 hours - school day - 8 hours - nonschool day –18 hours - school week - 40 hours - nonschool week Cannot work before 7 a.m. or after 7 p.m. –June 1 through Labor day - until 9 p.m. Cannot work during school hours
30 FLSA - Child Labor Laws - Non-Agricultural Employment Age Limitations 14 and 15 YEAR OLDS - WECEP Exception (Work Experience and Career Exploration Program) Must be enrolled in an approved program Work cannot exceed – 3 hours - school day - 8 hours - nonschool day –23 hours - school week - 40 hours - nonschool week Cannot work before 7 a.m. or after 7 p.m. –(June 1 through Labor day - until 9 p.m. Can work during school hours Can work in certain occupations otherwise prohibited
31 DEFINITIONS A school day is any day school is in session. For example, a Friday night is a school day if school is in session during that day. A nonschool day is any day school is not in session. For example, a Monday, during a holiday break, if there is no school during that day. A school week is any week school is in session, even if in session for only one school day.
32 FLSA - Child Labor Laws - Non-Agricultural Employment Age Limitations 16 and 17 YEAR OLDS... Can work at any time For unlimited hours May be exempted from some of the hazardous occupations prohibited for youth under age 18.
33 FLSA - Child Labor Laws - Non-Agricultural Employment HO 1Manufacturing and storing explosives. HO 2Motor vehicle driving and outside helper HO 3Coal mining HO 4Logging and saw milling HO 5Power-driven woodworking machines HO 6Exposure to radioactive substances HO 7Power-driven hoisting apparatus HO 8Power-driven metal-forming, punching/shearing machines Hazardous Occupational Orders (HOO) Possible exemptions for # 5, 8, 10, 12, 14, 16, 17
34 FLSA - Child Labor Laws - Non-Agricultural Employment Hazardous Occupational Orders (HOO) (cont) HO 9Mining, other than coal HO10Slaughtering, meat packing, processing, rendering HO11Power-driven bakery machines HO12Power-driven paper products machines HO13Manufacturing brick, tile, and kindred products HO14Power-driven circular saws, band saws, guillotine shears HO15Wrecking, demolition and ship-breaking operations HO16Roofing operations HO17 Excavation operations
35 H.O.O.’s with Exemptions for Minors in Training HO 5 Work using power-driven woodworking machines, including the use of saws on construction sites. HO 8 Work using power-driven metal forming, punching, and shearing machines. Even without the exemption - HO 8 permits the use of a large group of machine tools used on metal, including lathes, turning machines, milling machines, grinding, boring machines and planing machines. HO 10 Work involving slaughtering or meatpacking, processing, or rendering including the operation of power-driven meat slicers in retail stores.
36 H.O.O.’s with Exemptions for Minors in Training HO 12 Work using power-driven paper-products machines, including the operation and loading of paper balers in grocery stores. HO 14 Work involving the use of circular saws, band saws and guillotine shears. HO 16 All work in roofing operations. HO 17 All work in excavating operations, including work in a trench as a plumber.
37 FLSA - Child Labor Laws - Non-Agricultural Employment –Enrolled in a state recognized course, e.g., COOP program or BAT approved apprenticeship. –Hazardous portion of work is incidental to training. –Hazardous portion of work in intermittent and for short periods of time. –Under direct and close supervision of qualified person. –Safety instruction given by school and/or employer. –Employed under a written Training Agreement. –Training Plan is developed. HOO Exemption Qualifications 16-17 YEARS OLD STUDENT LEARNER or APPRENTICE
38 DEFINITIONS Hazardous portion of work is incidental to the training. EXAMPLE - a Student Learner may operate a power driven woodworking machine such as a circular saw in order to learn how to use it properly. Hazardous portion of work is intermittent and for short period of time. EXAMPLE - a Student Learner may operate a circular saw for 20-30 minutes at a time several times during the work day – but may not operate the saw continuously throughout the day.
39 FLSA - Child Labor Laws Non-Agricultural Employment Common Violations 1.HOURS worked by 14-15 year olds. More than 1/2 of total citations. 2.Illegal OCCUPATIONS by 14-15 year olds. Most common: cooking - construction sites - warehouses. 3.Violations of HO2 - restrictions on driving for those under age 18. 4.Violation of HO5 & 14 (power-driven saws), HO7 (forklifts, bobcats), HO10 (meat processing), HO11 (power driven dough mixers, HO12 (paper balers) and HO16 (roofing). 5.Employment of minors under age 14.
40 You Be the Judge 1.You hire the 15-year-old child of one of your employees to mow grass at your business. 2.You hire a 16-year-old to clean your office and work there five 12-hour days a week. 3.A 17-year-old works for you in the kitchen. He operates a meat slicing machine to cut cheese.
41 You Be the Judge 4.A 14-year-old works as your receptionist three hours a day after school. 5.You hire a 17-year-old to pick up prescriptions on a regular basis, using her own car. (HO#2) 6.A 15-year-old does data input at your credit union from 5 p.m. to 8 p.m. on Mondays.
42 You Be the Judge Correct Answers 1.Not legal - 15-year-olds cannot operate power equipment as part of their employment. 2.Legal - 16-year-olds in Nebraska can work any time for unlimited hours. 3.Not legal - unless the 16-17 year old is a“student learner” enrolled in an approved program and all criteria are met. 4.Legal – as long as it’s not more than 3 hours and not during the school day. 5.Not legal – must be 18 to be a delivery person on a “regular” basis. 6.Not legal - during the school year. Legal – when school is not in session (summer)
43 YouthRules! Initiative Compliance assistance materials on the YouthRules! Initiative are available on the YouthRules! Web page at www.youthrules.dol.gov. www.youthrules.dol.gov To order YouthRules! Bookmarks... –from the home page click on [Posters and Stickers] under [Compliance Assistance]. –Scroll all the way down to the bottom of the page and click on the language version that you want. –English and Spanish versions are available.
44 U.S. DOL Contact Information DOL Worldwide Web address: http://www.dol.gov http://www.dol.gov Child Labor: http://www.dol.gov/niosh/adoldoc.html http://www.dol.gov/niosh/adoldoc.html