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National Center on Secondary Education and Transition

ESSENTIAL TOOLS —
Handbook for Implementing a Comprehensive Work-Based Learning Program According to the Fair Labor Standards Act (Third Edition)

Section I

The Goal of Productive Employment for All Youth

In 1990, the U.S. President and state governors adopted six ambitious national education goals. These goals apply to all youth. They require that all students leave school literate and with the knowledge and skills necessary to compete in a global economy and be able to exercise the rights and responsibilities of citizenship. Foremost among these goals is access to productive employment in our modern economy, whether immediately following secondary school or after further postsecondary study.

To support these goals, preparation for employment must become a focal point of every student’s educational program. This is especially true for youth with disabilities. Congress underscored this need by including transition services requirements in the IDEA Amendments of 1990, and most recently in the 1997 IDEA Amendments (P.L. 105-17), and the IDEA 1998 final regulations. These actions serve as an impetus for schools to intensify their efforts to prepare youth with disabilities for productive employment and other post school, adult-living objectives. Required transition services are described in IDEA 1997 as:

A coordinated set of activities for a student with a disability that is designed within an outcome-oriented process, that promotes movement from school to post school activities, including postsecondary education, vocational training, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation; is based on the individual student’s needs, taking into account the student’s preferences and interests; and includes instruction, related services, community experiences, the development of employment and other post school adult-living objectives, and if appropriate, acquisition of daily-living skills and functional vocational evaluation.

Recent studies reinforce the need to strengthen the connection between education and employment. For example, a national longitudinal transition study of special education students found that enrollment in occupationally oriented career and technical education programs was significantly related to a lower likelihood of youth with disabilities dropping out of school, and that youth who took career and technical education during school or had work experience as part of their educational program were more likely to be employed after high school. Research supports the value of a functional skills approach to curriculum and training for youth with disabilities. This involves teaching the skills needed to enhance independent adult living in community settings.

Career and technical education has long been an option for preparing youth with disabilities for productive employment. However, most of these programs in the past relied heavily on simulated work experience in classroom settings. This approach has not led to productive employment in integrated work environments for many students. In fact, the outcome often has been sheltered employment in segregated work settings. The skills acquired through classroom or simulated work experiences do not generalize to typical work settings, and therefore do not meet the goal of post school productive employment for youth with disabilities. When career and technical education and training occur primarily through classroom or simulated settings, youth with disabilities do not acquire social skills normally built through interactions with colleagues and coworkers. These skills are critical to long-term employment success.

The WBL Approach to Productive Employment for Youth with Disabilities

Work-Based Learning (WBL) is an effective approach to employment preparation for youth with disabilities. WBL delivers career and technical education and training to youth with disabilities in workplace settings rather than in typical school settings. Students aged 14 years or older engage in nonpaid career exploration, career assessment, and work-related training experiences to identify their career interests, assess their employment skills and training needs, and develop the skills and attitudes necessary for paid employment. After such instruction, students engage in paid cooperative work experience.

There are four distinct components to the WBL approach: career exploration, career assessment, work-related training, and cooperative work experience. Students often progress sequentially through all four components. However, some students participate in only one or two components before moving to cooperative work experience, depending on their instructional needs.

Career Exploration

The career exploration component exposes students briefly to a variety of work settings to help them make decisions about future career directions or occupations. The exploration process involves examining interests, values, beliefs, and strengths in relation to the demands and other characteristics of work environments. This occurs most often through worksite field trips, job shadowing, guest speakers, and career mentorship. Through career exploration, students gain information by watching work being performed, talking with employees, and actually trying out work under direct supervision of school personnel. Exploration enables students to make choices regarding career or occupational areas they wish to pursue. The student, parents, worksite employees, and school personnel use this information to develop transition planning in the student’s Individualized Education Program (IEP).

Career Assessment

The career assessment component leads to individual training objectives for a youth with a disability. Career assessment activities may include but are not limited to computerized assessments, career and technical education classes, career mentorship, service learning projects, volunteering, and extended observation. In this WBL component, the student undertakes work assignments in various business settings under the direct supervision of school personnel and employees. Assessment data are systematically collected detailing the student’s interests, aptitudes, special needs, learning styles, work habits, behavior, personal and social skills, values and attitudes toward work, and work tolerance. The student rotates among various occupational settings corresponding to the student’s range of employment preferences as situational assessments are completed by school personnel and worksite employees. As a result, students select work settings in which they can best pursue career or occupational areas matching their interests and aptitudes. Future training objectives are matched with these selections. These training objectives become a part of the student’s subsequent IEP.

Work-Related Training

The work-related training component of WBL places the student in various employment settings for nonpaid work experiences. The student, parents, and school personnel develop a detailed, written training plan, which includes competencies to be acquired, method(s) of instruction, and procedures for evaluating the training experience. Training is closely supervised by a representative of the school or a designated employee/supervisor. The purpose of this component is to enable students to develop the competencies and behaviors needed to secure paid employment. As the student achieves the training objectives in a particular employment setting, the student moves to other employment environments where additional or related learning and reinforcement of current competencies and behaviors can occur. (A business providing work-related training may derive no benefit from the student. If a business does derive benefit, the nonemployment relationship becomes a paid employer-employee relationship, or the student must move to another environment.)

Cooperative Work Experience

A cooperative work experience consists of an arrangement between the school and an employer that uses the workplace and its environment to create links between the learning occurring in school and the skills required in the workplace. The experience is closely supervised by a representative of the school or a designated employee/supervisor. Typically during the cooperative work experience the student attends a class or seminar at the school to reinforce and supplement the experience. Paid for work performed in the employment setting, the student may receive payment from the employer, from the school’s cooperative career and technical program, from another employment program operating in the community such as those supported by the Workforce Investment Act, or a combination of these. The student is paid the same wage as nondisabled employees performing the same work. In some instances, arrangements are made by the school and employer through the U.S. Department of Labor Wage and Hour Division to pay a special minimum wage called “commensurate wage rate” (see The FLSA and the WBL Cooperative Work Experience Component for a brief description of these FLSA provisions).

The school and employer reach a written agreement before the student enters the cooperative work experience. This agreement includes a clear stipulation of the student’s wages, benefits, and specific individual training plan. This agreement may also include follow-along services to ensure the student adjusts to the work assignments and improves performance and productivity over time. It is likely that students may engage in several cooperative work experience placements as part of their special education experience during school.

Requirements of the FLSA Related to WBL

Because WBL activities take place in employment settings, these activities must comply with the provisions of the Fair Labor Standards Act (FLSA). The FLSA is the federal legislation establishing minimum wage, overtime pay, record-keeping requirements (i.e., personal employee information, wages, hours), and child labor. Employees are entitled to a regular wage of at least $5.15 (current minimum wage) per hour and overtime pay of at least one and one-half times their regular wage for all hours more than 40 in a work week. In states with a minimum wage rate higher than the federal, the higher rate applies.

In order to promote WBL programs to prepare youth with disabilities for productive, paid employment, the U.S. Departments of Labor and Education entered into an agreement in September 1992 and adopted the following Statement of Principle:

The U.S. Departments of Labor and Education are committed to the continued development and implementation of individual education programs, in accordance with the Individuals with Disabilities Education Act (IDEA), that will facilitate the transition of students with disabilities from school to employment within their communities. This transition must take place under conditions that will not jeopardize the protections afforded by the Fair Labor Standards Act to program participants, employees, employers, or programs providing rehabilitation services to individuals with disabilities.

The FLSA and WBL Career Exploration, Career Assessment, and Work-Related Training Components

The Departments of Labor and Education joined this statement of principle with Policy Guidelines governing the participation of youth with disabilities in employment settings for career exploration, career assessment, and work-related training. Youth with disabilities who engage in nonpaid career exploration, career assessment, and work-related training activities are not considered employees of the businesses in which they receive these services only if they can demonstrate compliance with all of the guidelines below. When schools and employers engaging in these WBL activities with youth with disabilities adhere to all of the following guidelines, they do not violate the provisions of the FLSA. The guidelines are:

• Participants will be youth with physical and/or mental disabilities for whom competitive employment at or above the minimum wage level is not immediately obtainable and who, because of their disability, will need intensive ongoing support to perform in a work setting.
• Participation will be for career exploration, career assessment, or work-related training at a worksite placement under the general supervision of public school personnel.
• Worksite placements will be clearly defined components of Individualized Education Programs (IEPs) developed and designed for the benefit of each student. The statement of needed transition services established for the exploration, assessment, training, or cooperative work experience components will be included in the student’s IEP.
• Information contained in a student’s IEP will not have to be made available; however, documentation as to the student’s enrollment in the work-based learning program will be made available to the Departments of Labor and Education. The student and his or her parent(s) or guardian(s) must be fully informed of the IEP and the career exploration, career assessment, or work-related training components and have indicated voluntary participation with the understanding that participation in these components does not entitle the student-participant to wages or other compensation for duties performed at the worksite placement.
• The activities of the student at the worksite do not result in an immediate advantage to the business. The Department of Labor looks at the following factors to determine if this guideline is being met:
  • There has been no displacement of employees, vacant positions have not been filled, employees have not been relieved of assigned duties, and the students are not performing services that, although not ordinarily performed by employees, clearly are of benefit to the business.
  • The students are under continued and direct supervision by either representatives of the school or by employees of the business. The student receives ongoing instruction and close supervision at the worksite during the entire experience, resulting in any tasks the student performs being offset by the burden to the employer of providing ongoing training and supervision.
  • Such placements are made according to the requirements of the student’s IEP and not to meet the labor needs of the business.
  • The periods of time spent by the students at any one site or in any clearly distinguishable job classification are specifically limited by the IEP.
• While the existence of an employment relationship will not be determined exclusively on the basis of number of hours, as a general rule, each component will not exceed the following limitation during any one school year:
  • Career exploration–5 hours per job experienced
  • Career assessment–90 hours per job experienced
  • Work-Related training–120 hours per job experienced
• Students are not automatically entitled to employment at the business at the conclusion of their IEP. However, once a student has become an employee, the student cannot be considered a trainee at that particular worksite placement unless in a clearly different occupation.

Schools and participating businesses are responsible for ensuring that all seven of these guidelines are met. If any of these guidelines are not met, an employment relationship exists, and participating businesses can be held responsible for full compliance with the FLSA.

The FLSA and WBL Cooperative Work Experience Component

In this WBL component, the youth with a disability is paid for work performed in the employment setting. Therefore, an employment relationship exists; the student is an employee and is entitled to the same wages as nondisabled employees performing the same tasks; schools and businesses are subject to all of the provisions of the FLSA, (i.e., minimum wage, overtime pay, record-keeping, and child labor). This is true whether the student is paid by the business, school, or a third party.

The FLSA contains several provisions addressing employees who are age 14 and 15, age 16 and older, or workers with disabilities. These provisions are described as follows.

• Youth age 14 and 15: Under the FLSA child labor provisions, these students may work in various jobs outside school hours no more than three hours on a school day with a limit of 18 hours in a school week; no more than eight hours on a nonschool day with a limit of 40 hours in a nonschool week; and not before 7:00 a.m. or after 7:00 p.m., except from June 1 through Labor Day, when the evening hour is extended to 9:00 p.m. These students may not work in jobs declared hazardous by the Secretary of Labor.
• Youth age 16 and 17: Under the FLSA child labor provisions, these students may work anytime for unlimited hours in all jobs not declared hazardous by the Secretary of Labor. (States often have limited hours for students age 16 and 17. The school and employer are responsible for knowing and enforcing the hours. When state rules are stricter than federal rules, state rules apply.)
• 18 is the minimum age for employment in occupations declared hazardous by the Secretary of Labor. For the purposes of this manual, a hazardous occupation is defined as an occupation that may be detrimental to the health and well being of children under 18 years of age or an occupation that may jeopardize their educational opportunities. The rules prohibiting working in hazardous occupations (HO) apply either on an industry or an occupational basis no matter what industry the job is in. Parents employing their own children are subject to these same rules. Some of these hazardous occupations have definitive exemptions. In addition, limited apprentice/student-learner exemptions apply to those occupations marked with an asterisk (*). Youth age 18 and older may be placed in any hazardous occupation if it is developmentally appropriate for the youth.

More details about the above listings can be obtained by reviewing the child labor regulations. (Each state may have additional restrictions.) For details about statutory changes made in 2004 regarding HO #2 and HO #12 please see the fact sheets available on the U.S. Department of Labor Web site at http://www.dol.gov/esa/regs/compliance/whd/whdfs34.htm and http://www.dol.gov/esa/regs/compliance/whd/bale.htm.

• Youth age 18 or older may perform any task, whether hazardous or not. (It is also important to consider whether the job or occupation is developmentally appropriate.) Youth age 16 or 17 may perform any non-hazardous job. Youth age 14 and 15 may not work in the manufacturing or mining industries or in any hazardous job. In addition, youth age 14 or 15 may not work in the following occupations:
  • Communications or public utilities jobs;
  • Construction or repair jobs;
  • Driving a motor vehicle or helping a driver;
  • Manufacturing and mining occupations;
  • Power-driven machinery or hoisting apparatuses other than typical office machines;
  • Processing occupations;
  • Public messenger jobs;
  • Transporting persons or property;
  • Workrooms where products are manufactured, mined, or processed; and
  • Warehousing and storage.
• A 14- or 15-year-old may work in retail stores, food service establishments, and gasoline service stations. However, a 14- or 15-year-old may not perform the following tasks in the retail and service industries:
  • Baking;
  • Boiler or engine room work, whether in or about;
  • Cooking, except at soda fountains, lunch counters, snack bars, and cafeteria counters;
  • Freezers or meat coolers work;
  • Loading or unloading goods on or off trucks, railcars, or conveyors;
  • Meat processing area work;
  • Maintenance or repair of a building or its equipment;
  • Operating, setting up, adjusting, cleaning, oiling, or repairing power-driven food slicers, grinders, choppers or cutters, and bakery mixers;
  • Outside window washing, or work standing on a window sill, ladder, scaffold, or similar equipment; and
  • Warehouse work, except office and clerical work.
• A 14- or 15-year-old may perform these tasks in the retail and service industries:
  • Bagging and carrying customer’s orders;
  • Cashiering, selling, modeling, art work, advertising, window trimming, or comparative shopping;
  • Cleaning fruits and vegetables;
  • Clean-up work and grounds maintenance (the young worker may use vacuums and floor waxers, but he or she cannot use power-driven mowers, cutters, and trimmers);
  • Delivery work by foot, bicycle, or public transportation;
  • Kitchen and other work in preparing and serving food and drinks, but not cooking or baking (see hazardous jobs);
  • Office and clerical work;
  • Pricing and tagging goods, assembling orders, packing, or shelving;
  • Pumping gas, cleaning and polishing cars and trucks (but the young worker cannot repair cars, use garage lifting rack, or work in pits);
  • Wrapping, weighing, pricing, and stocking any goods as long as the young worker does not work where meat is being prepared and does not work in freezers or meat coolers.
• Student learners: High-school students at least age 16 who are enrolled in career and technical education can be employed at a special minimum wage rate of not less than 75 percent of the minimum wage (i.e., $3.86 under the present $5.15 per hour minimum wage), provided authority is obtained from the Department of Labor Regional Office of the Wage and Hour Division for each student before he/she begins employment.
• Full-time student program: Full-time students working in retail or service stores, agriculture, or colleges and universities can be employed at a special minimum wage of not less than 85 percent of the minimum wage (i.e., $4.38 under the present $5.15 per hour minimum wage). Employers must first obtain a certificate from the Department of Labor Regional Office of the Wage and Hour Division. This certificate also limits the number of hours a student may work to 8 hours per day and no more than 20 hours per week during the school year and 40 hours per week when school is out, and requires employers to follow all child labor laws.
• Youth minimum wage: Section 6(g) of the FLSA allows employers to pay employees under age 20 a youth minimum wage of not less than $4.25 per hour for a limited time period of 90 consecutive calendar days, not work days. The 90-day period starts with and includes the first day of work. Where state or local law requires payment of a minimum wage higher than $4.25 an hour for employees under age 20, the higher state or local minimum wage rule would apply. A break of service does not affect the calculation of the 90-day period. For example, if a student initially worked for an employer over a period of 60 consecutive calendar days during the summer and then quits to return to school, the 90-day eligibility period ends for this employee with this employer 30 days after he/she quits (i.e., 90 consecutive calendar days after initial employment). If this same student returned later to work again for the same employer, the employer would not be able to pay the student the youth minimum wage. Individuals under age 20 may be paid the youth minimum wage for up to 90 consecutive calendar days after initial employment by more than one employer. Employers may not displace regular employees to hire someone at the youth wage.
• Workers with disabilities in supported-work programs: Section 14 of the FLSA allows workers with disabilities to be employed at wage rates that may be below the statutory minimum, but wages paid must always be commensurate with the workers’ productivity as compared to the productivity of nondisabled workers performing the same tasks. To pay a wage rate below the statutory minimum, an employer must obtain a special minimum wage certificate from the Department of Labor Wage and Hour Midwest Regional Office (see Appendix A); the employer must obtain the certificate before employing a worker with a disability at less than the minimum wage.

Schools operating WBL programs should not rely solely on the preceding description of the FLSA provisions that apply when students participate in the cooperative work experience component of WBL. Schools and businesses may consult the U.S. Department of Labor, Employment Standards Administration, Wage and Hour Division Regional Office for additional guidance (see Appendix A) and state and local government agencies.

With the issuance of policy guidelines governing the WBL components of career exploration, career assessment, and work-related training, the U.S. Departments of Labor and Education have cleared the way for schools to launch or expand their WBL programs for youth with disabilities. Several state and local education agencies have contacted the Office of Special Education Programs within the U.S. Department of Education with questions about applying the guidelines to their own WBL programs. The following section of this handbook lists the questions most frequently asked about operating WBL programs consistent with the FLSA, and the responses to these questions developed by the U.S. Departments of Education and Labor.

Citation: Johnson, D. R., Sword, C., & Habhegger, B. (2004). Essential tools: Handbook for implementing a comprehensive work-based learning program according to the Fair Labor Standards Act (3rd ed.). Minneapolis, MN: University of Minnesota, Institute on Community Integration, National Center on Secondary Education and Transition.

Permission is granted to duplicate this publication in its entirety or portions thereof. Upon request, this publication will be made available in alternative formats. For additional copies of this publication, or to request an alternate format, please contact: Institute on Community Integration Publications Office, 109 Pattee Hall, 150 Pillsbury Drive SE, Minneapolis, MN 55455, (612) 624-4512, icipub@umn.edu.

This document was published by the National Center on Secondary Education and Transition (NCSET). NCSET is supported through a cooperative agreement #H326J000005 with the U.S. Department of Education, Office of Special Education Programs. Opinions expressed herein do not necessarily reflect the policy or position of the U.S. Department of Education Programs, and no official endorsement should be inferred. The University of Minnesota, the U.S. Department of Education, and the National Center on Secondary Education and Transition are equal opportunity employers and educators.