Carol Jurgens

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WBL Legal Issues

• Carol Jurgens
• Nebraska Department of Education
• 402-471-0948
• cjurgens_at_nde.state.ne.us
• www.nde.state.ne.us/TECHPREP/WBL

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Effective and Legal WBL Experiences

• Federal Fair Labor Standards Act (FLSA)
• Wage Hour Law
• Child Labor Law

• Effective Experiences
• Employment of Youth Under 18
• Insurance/Liability
• Transportation
• Health/Safety

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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

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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

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Employment of Youth Under Age 18Is there an
employment relationship?

• PAID ROLES
• Student Learner
• Apprentice
• Employee

• UNPAID ROLES
• Student/Visitor/Observer
• Volunteer
• Unpaid Trainee

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Employment of Youth Under Age 18An 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.

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Employment of Youth Under Age 18There is NOT
an employment relationship
UNPAID ROLES

• 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.

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Insurance/Liability
Insurance Coverage

• Workers Compensation
• Paid cooperative education and apprenticeship
  participants covered.
• Unpaid trainees and volunteers ordinarily NOT
  covered.
• Worker benefits limited by statute.

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Insurance/Liability
Insurance Coverage (cont.)

• Injury to Participants
• Employees covered by Workers Compensation.
• Students/visitors, volunteers, or unpaid
  trainees expenses covered by
  the individual, parents, or companys health
  insurance or general liability policy.

• Coverage for Lawsuits
• Companys general liability policy covers company
  and employees.
• Endorsement may extend coverage to visitors,
  volunteers, unpaid trainees.

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Insurance/Liability
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.

• Indemnification Agreements
• Used to shift financial burden for
  injuries/damage from one party to another, e.g.,
  insurance policy.

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Transportation

• Transporter
• SCHOOL
• EMPLOYER
• PARENT
• TEACHER
• STUDENT

• Liability Coverage
• Schools insurance
• Employers insurance
• Parents insurance
• Teachers insurance
• Students insurance

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Transportation
Conditions for WBL Student Driver

• Verify drivers 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

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Health/Safety

• 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.

• Safety Instruction
• Fire procedures
• Proper equipment operation supervised
• Safety rules
• Reporting unsafe working conditions
• Keeping work area clean and orderly

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FLSAFederal Fair Labor Standards Act
Who Is Covered? Employees who work for any one
type of enterprise that is either

• 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.

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FLSAFederal 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 gt
  500,000
• all hospitals, schools and public agencies

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FLSAFederal Fair Labor Standards Act

• Employment Defined
• to suffer or permit to work (paid)

• under a contract of hire
• - written or oral
• - expressed or implied

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FLSAFederal Fair Labor Standards Act
Employment Relationship
FLSA Covered Student and/or Enterprise


Conformance to Federal WAGE HOUR LAW
OR State/local laws if more protective
Conformance to Federal CHILD LABOR
LAWS OR State/local laws if more protective
NO FLSA WAIVERS
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FLSAWage and Hour Law

• UNPAID LEARNING EXPERIENCES
• Student Learners
• Volunteers
• Volunteers Under An IEP

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FLSA - Wage and Hour Law UNPAID LEARNING
EXPERIENCES
Student Learners

• 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 employers 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).

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FLSA - Wage and Hour Law UNPAID LEARNING
EXPERIENCES
Volunteers

• 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

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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

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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.

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FLSA - Wage and Hour Law PAID WORK EXPERIENCES

• Minimum Wage
• 5.15 per hour on 9/1/97
• Overtime 1.5 x regular pay gt 40 hr/week

• Youth Subminimum Wage
• Under 20 years old
• 4.25 per hour
• lst 90 consecutive calendar days of employment

• Tip Credit
• At least 2.13 per hour
• At least the minimum wage/hour with employees
  tips

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FLSA - Wage and Hour Law PAID WORK EXPERIENCES

• 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.

• 2. Students with Severe Disabilities . . .
• can be paid wages commensurate to their
  individual productivity under the Special
  Education School Work Experience Certificate.

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FLSA - Wage and Hour Law PAID WORK EXPERIENCES
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.

• 4. Apprentices . . .
• in an apprenticeship registered with the DOL may
  be paid 50 of the journeymans rate as
  authorized by the apprenticeship agreement.

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FLSA - Child Labor Laws

• 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 . . .

• Non-Agricultural Employment
• Affect the employment of nearly all working
  minors with a few exemptions.

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FLSA - Child Labor LawsNon-Agricultural
Employment

• Exempt Occupations/Situations
• Children lt 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.

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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.

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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

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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

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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.

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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.

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FLSA - Child Labor Laws - Non-Agricultural
Employment
Hazardous Occupational Orders (HOO)
Possible exemptions for 5, 8, 10, 12, 14, 16, 17

• HO 1 Manufacturing and storing explosives.
• HO 2 Motor vehicle driving and outside helper
• HO 3 Coal mining
• HO 4 Logging and saw milling
• HO 5 Power-driven woodworking machines
• HO 6 Exposure to radioactive substances
• HO 7 Power-driven hoisting apparatus
• HO 8 Power-driven metal-forming,
  punching/shearing machines

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FLSA - Child Labor Laws - Non-Agricultural
Employment

• Hazardous Occupational Orders (HOO) (cont)
• HO 9 Mining, other than coal
• HO10 Slaughtering, meat packing, processing,
  rendering
• HO11 Power-driven bakery machines
• HO12 Power-driven paper products machines
• HO13 Manufacturing brick, tile, and kindred
  products
• HO14 Power-driven circular saws, band saws,
  guillotine shears
• HO15 Wrecking, demolition and ship-breaking
  operations
• HO16 Roofing operations
• HO17 Excavation operations

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H.O.O.s with Exemptions for Minors in Training
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H.O.O.s with Exemptions for Minors in Training
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FLSA - Child Labor Laws - Non-Agricultural
Employment
HOO Exemption Qualifications

• 16-17 YEARS OLD

• STUDENT LEARNER or APPRENTICE

• 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.

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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.

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FLSA - Child Labor LawsNon-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.

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You Be the Judge

• You hire the 15-year-old child of one of your
  employees to mow grass at your business.
• You hire a 16-year-old to clean your office and
  work there five 12-hour days a week.
• A 17-year-old works for you in the kitchen. He
  operates a meat slicing machine to cut cheese .

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You Be the Judge

• A 14-year-old works as your receptionist three
  hours a day after school.
• You hire a 17-year-old to pick up prescriptions
  on a regular basis, using her own car. (HO2)
• A 15-year-old does data input at your credit
  union from 5 p.m. to 8 p.m. on Mondays.

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YouthRules! Initiative

• Compliance assistance materials on the
  YouthRules! Initiative are available on the
  YouthRules! Web page at 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.

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U.S. DOL Contact Information

• DOL Worldwide Web address http//www.dol.gov
• Child Labor http//www.dol.gov/niosh/adoldoc.html
  

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The EndHooray!!
Door Prize Drawing