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
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.
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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.
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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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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
  astudent learner enrolled in an approved
  program and all criteria are met.
• 4. Legal as long as its 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.
• Not legal - during the school year.
• Legal when school is not in session (summer)

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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