[Federal Register Volume 62, Number 31 (Friday, February 14, 1997)]
[Proposed Rules]
[Pages 7094-7105]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-3597]
[[Page 7093]]
_______________________________________________________________________
Part II
Department of Labor
_______________________________________________________________________
Wage and Hour Division
_______________________________________________________________________
29 CFR Parts 520, et. al.
Employment of Student-Learners, Apprentices, Learners, Messengers, and
Student Workers; Proposed Rule
Federal Register / Vol. 62, No. 31 / Friday, February 14, 1997 /
Proposed Rules
[[Page 7094]]
DEPARTMENT OF LABOR
Wage and Hour Division
29 CFR Parts 520, 521, 522, 523 and 527
RIN 1215-AB10
Employment of Student-Learners, Employment of Apprentices,
Employment of Learners, Employment of Messengers, and Employment of
Student Workers
AGENCY: Wage and Hour Division, Employment Standards Administration,
Labor.
ACTION: Proposed rulemaking and request for comments.
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SUMMARY: The Department of Labor proposes to remove the regulation
found at 29 CFR Part 527 and consolidate the regulations found at 29
CFR Parts 520, 521, 522, and 523, into a single Part 520. These rules
were promulgated under section 14(a) of the Fair Labor Standards Act
(FLSA), and provide for employment under special certificates of
categories of workers who may be paid less than the statutory minimum
wage to prevent the curtailment of employment opportunities. These
workers include apprentices, messengers and learners, including
student-learners and student-workers. Employers must apply for special
certificates issued by the Wage and Hour Division of the U. S.
Department of Labor which state the terms and conditions of employment
at subminimum wages. Many of the provisions of these individual
regulations are duplicative and can be merged into one comprehensive
document. The language and context of the rules have been simplified,
shortened and formatted to make them easier to use while the essential
requirements of the regulations have been maintained. The substantive
criteria used to determine an employer's eligibility to receive a
certificate under these programs remains generally unchanged.
DATES: Comments on the proposed rule are due April 15, 1997.
ADDRESSES: Submit written comments to Maria Echaveste, Administrator,
Wage and Hour Division, Employment Standards Administration, U.S.
Department of Labor, Room S-3502, 200 Constitution Avenue, NW.,
Washington, D.C. 20210. Commenters who wish to receive notification of
receipt of comments are requested to include a self-addressed, stamped
postcard or to submit them by certified mail, return receipt requested.
As a convenience to commenters, comments may be transmitted by
facsimile (``FAX'') machine to (202) 219-5122. This is not a toll free
number. If transmitted by FAX and a hard copy is also submitted by
mail, please indicate on the hard copy that it is a duplicate copy of
the FAX transmission.
FOR FURTHER INFORMATION CONTACT: Arthur M. Kerschner, Jr., Office of
Enforcement Policy, Child Labor and Special Employment Team, Wage and
Hour Division, Employment Standards Administration, U.S. Department of
Labor, Room S-3510, 200 Constitution Avenue, NW., Washington, D.C.
20210: telephone (202) 219-7640. This is not a toll free number. Copies
of the Notice of Proposed Rulemaking (NPRM) in alternative formats may
be obtained by calling (202) 219-7605, (202) 219-4634 (TDD). The
alternative formats available are large print, electronic file on
computer disk and audio-tape.
SUPPLEMENTARY INFORMATION:
I. Paperwork Reduction Act
This rule contains reporting or recordkeeping requirements subject
to the Paperwork Reduction Act of 1980 (Pub. L. 96-511), which were
previously approved by the Office of Management and Budget (OMB) under
Regulations, 29 CFR Parts 516 and 522, and assigned OMB control numbers
1215-0017 and 1215-0012, respectively.
The recordkeeping requirements contained in these regulations have
been submitted to and approved by OMB under control number 1215-0017
through May 31, 1998. The recordkeeping requirements contained in
Regulations, 29 CFR Parts 520, 521, and 522 and 527 were submitted to,
reviewed and approved by OMB in conjunction with the basic
recordkeeping requirements contained in Regulations, 29 CFR Part 516,
Records to be Kept by Employers under the Fair Labor Standards Act
(FLSA).
The reporting requirements contained in Regulations, 29 CFR Parts
520 (OMB No. 1215-005), and 522 (OMB No. 1215-0012) have been approved
by OMB. However, in this proposed rulemaking the Department of Labor
intends to consolidate current 29 CFR Parts 520, 521, and 522 into a
revised 29 CFR Part 520 and eliminate 29 CFR Part 527. Further, the
Department is proposing to amend the current Application for a
Certificate to Employ Learners at Subminimum Wages (Form WH-209) so the
form may also be used to apply for a certificate to employ messengers
at subminimum wages. In addition, the Department is proposing to reduce
the amount of information requested on the form which will lessen the
reporting burden on the public.
No application form is required to be completed by an employer to
employ apprentices at subminimum wages, however, employers are required
to submit a copy of the apprenticeship agreement, along with evidence
of registration. Information collection requirements for approval and
registration of apprenticeship agreements are contained in Regulations,
29 CFR Part 29, Labor Standards for the Registration of Apprenticeship
Programs and have been approved by OMB under control number 1205-0023.
The reporting requirements contained in these proposed regulations
have been submitted for review to OMB pursuant to section 3507(d) of
the Paperwork Reduction Act of 1995.
A. Title: Application for a Certificate to Employ Learners/
Messengers at Subminimum Wages, Form WH-209
Summary: These regulations eliminate Regulations, 29 CFR Part 522
and incorporate the procedures to obtain a certificate to employ
learners/messengers at subminimum wages into a revised Part 520.
Need: Section 14(a) of the FLSA provides, in part, that the
Secretary of Labor, to the extent necessary in order to prevent
curtailment of opportunities for employment, shall by regulation or
order provide for the employment of learners and messengers at
subminimum wage rates. This section also authorizes the Secretary to
set limitations on such employment as to time, number, proportion and
length of service.
Form WH-209 is an application for a certificate authorizing an
employer to employ learners and/or messengers at subminimum wage rates
for a period up to one year. The requirements for application and
issuance of a learner and/or messenger certificate are set forth in
subpart D of these proposed Regulations, 29 CFR Part 520.
Form WH-209, Application for a Certificate to Employ Learners and/
or Messengers at Subminimum Wages, is completed by an employer (in the
case of messengers, such application may be filed by an employer or
group of employers), in order to obtain a certificate authorizing the
payment of learners and/or messengers at a wage rate less than the
Federal minimum wage. Section 14(a) of FLSA requires that a certificate
be issued before subminimum wages can be paid to learners or
messengers.
[[Page 7095]]
Respondents and proposed frequency of response: Learners
historically was one of the largest subminimum wage programs with over
2,200 certificates issued in the 1960s. However, since wage rates have
risen in many industries where certificates were previously issued and
an adequate supply of experienced workers exists in these industries,
the use of learner certificates has declined drastically over the last
twenty years. No requests to employ learners at subminimum wages have
been received since 1995.
The Wage and Hour Division narrowly defined what type of firm is
eligible to acquire special certificates for messengers. No
applications for messengers have been received since 1949.
Estimated total annual burden: It is estimated that it takes
approximately 20 minutes to complete a learner/messenger application.
Since there is no current activity in this program, there is no annual
burden and no respondent costs.
B. Title: Application to Employ Student-Learners at Subminimum
Wages, Form WH-205
Summary: Section 14(a) of the FLSA provides, in part, that the
Secretary of Labor, to the extent necessary in order to prevent
curtailment of opportunities for employment, shall by regulation or
order provide for the employment of learners at subminimum wage rates.
This section also authorizes the Secretary to set limitations on such
employment as to time, number, proportion and length of service.
Form WH-205 is used by the employer to obtain certification to
employ student-learners at wages lower than the Federal minimum wage to
prevent curtailment of opportunities for employment. Upon joint
application by the employer, the appropriate school official, and the
student-learner, the application will provide temporary authority to
employ the named student-learner at a subminimum wage provided the
school official certifies that the named student will be receiving
instruction in an accredited school and will be employed pursuant to a
bona fide vocational training program. At the end of 30 days, this
authority is extended to become the approved certificate unless the
Administrator or his/her authorized representative denies the
application, issues a certificate with modified terms and conditions,
or expressly extends the period of review. The employer must provide a
statement outlining the vocational program and showing, particularly,
the processes in which the student-learner will be engaged when in
training on the job; a statement outlining the school instruction
directly related to the job; the age of the student-learner; and the
period of employment at subminimum wages. The requirements concerning
the issuance of certificates for student-learners are contained in
proposed Regulations, 29 CFR 520, Subpart E.
Respondents and proposed frequency of response: It is estimated
that 800 respondents will each use the WH-205 once annually. It is
estimated that 30 minutes is required for the respondent to complete
the form. This results in 400 annual reporting burden hours (800 forms
X 30 minutes).
All employees of certain enterprises having workers engaged in
interstate commerce, producing goods for interstate commerce, or
handling, selling or otherwise working on goods or materials that have
been moved in or produced for such commerce by any person are covered
by the Fair Labor Standards Act (FLSA). In addition, employees of firms
which are not covered enterprises under FLSA may still be subject to
FLSA if they are individually engaged in interstate commerce or in the
production of goods for interstate commerce. Accordingly, the FLSA
covers a wide range of different sizes and types of employers, from a
small retail store, to a farm, to a large multi-unit manufacturing
enterprise with locations in several states. Any one of these
employers, or a designated employee, may choose to complete the
application forms described in this submission. Without the
availability of specific data on those employers who complete these
forms, the 1995 average hourly rate for production or nonsupervisory
workers on nonfarm payrolls of $11.46 is being utilized to determine
respondent costs (Monthly Labor Review, U.S. Department of Labor,
Bureau of Labor Statistics, April, 1996). Annual respondent costs are
estimated as $4,854 ($11.46 x 400 hours). Estimated mailing costs for
800 applications are $280 (800 x .$.32 postage + 800 x $.03
envelope).
C. Title: Application to Employ Apprentices at Subminimum Wages
Summary: Section 14(a) of the FLSA provides, in part, in order to
prevent curtailment of employment opportunities, for the payment of
special minimum wage rates to workers employed as apprentices under
special certificates issued by the Department of Labor.
Need: There is no application form to be completed by employers to
obtain authority from the Department to employ apprentices at
subminimum wages. The employer or apprenticeship committee must submit
a copy of the registered apprenticeship program or agreement for such
apprentices to the appropriate Regional Office of the Wage and Hour
Division of the Department of Labor. A registered apprenticeship
program or agreement is one that has been approved by a recognized
apprenticeship agency as meeting the basic standards adopted by the
Department of Labor's Bureau of Apprenticeship and Training (BAT), upon
the recommendation of the Federal Committee on Apprenticeship. A
registered apprenticeship program constitutes a temporary special
certificate authorizing the employment of an apprentice at the wages
and under the conditions specified in such program until a special
certificate is issued or denied, provided that within 90 days from the
beginning date of the employment of such apprentices, the employer or
the apprenticeship committee sends a copy of each apprenticeship
agreement, with evidence of registration to the appropriate Regional
Office of the Wage and Hour Division. The requirements concerning the
issuance of certificates for apprentices are contained in proposed
Regulations, 29 CFR 520, Subpart D.
Respondents and proposed frequency of response: Regulations issued
by the BAT no longer permit the payment of subminimum wages to
apprentices in an approved program (29 CFR 29.5(b)(5)). Thus, no
apprentice certificates have been issued since 1987.
Estimated total annual burden: We estimate the submission of a copy
of an approved apprenticeship program to take approximately one minute.
However, since no apprenticeship programs are approved by BAT which
employ apprentices at subminimum rates there is no annual burden and no
respondent costs.
The public is invited to provide comments on these information
collection requirements so that the Department of Labor may:
(1) evaluate whether the proposed collections of information are
necessary for the proper performance of the functions of the agency,
including whether the information will have practical utility;
(2) evaluate the accuracy of the agency's estimates of the burdens
of the collections of information, including the validity of the
methodology and assumptions used;
(3) enhance the quality, utility and clarity of the information to
be collected; and
(4) minimize the burden of the collections of information on those
who are to respond, including through the
[[Page 7096]]
use of appropriate automated, electronic, mechanical, or other
technological collection techniques or other forms of information
technology, e.g., permitting electronic submission of responses.
Written comments should be sent to the Office of Information and
Regulatory Affairs, Office of Management and Budget, Attention: Desk
Officer for Employment Standards Administration, U.S. Department of
Labor, Washington, DC 20503.
II. Background
Section 14(a) of the FLSA provides for employment under special
certificates of categories of workers who may be paid less than the
statutory minimum wage to prevent the curtailment of employment
opportunities. These workers include messengers, learners (including
student-learners and student-workers), and apprentices.
Separate regulations were established for each of these subminimum
wage categories with many provisions common to all the separate rules.
These rules were also issued before the enactment of the Administrative
Procedure Act and other laws and regulations that impact the content of
regulations. The regulations at 29 CFR Parts 520, 521, 522, 523, and
527 were promulgated pursuant to FLSA and establish a certificate
system for employment of these classes of workers at subminimum wages.
Employers must apply for special certificates issued by the Wage and
Hour Division of the U.S. Department of Labor, which state the terms
and conditions of employment at subminimum wages.
Under Part 522, learners may be employed at less than the
applicable minimum wage in certain skilled occupations. Certificates
specify the number and proportion of learners authorized on any date,
the subminimum wage rates permitted during the learning period, and
length of the learning period in each occupation (ranging by occupation
from 160 to 960 hours, and normally limited to not more than one year;
new or expanding plants not more than six months). Certificates are
conditioned upon there being an inadequate supply of qualified,
experienced workers and the applicant making reasonable efforts to
recruit experienced workers. The use of learners must not create unfair
competitive labor cost advantages nor depress wages or working
standards for experienced workers in comparable work. Employers submit
separate applications for each establishment and must demonstrate that
efforts to hire experienced workers have been ineffective.
Under Part 520, student-learners are pupils at least sixteen years
old (eighteen if employed in certain hazardous occupations) who are
enrolled in an accredited school, college or university and who are
employed part-time under a bona fide vocational training program
approved by a State board of vocational education. Certified student-
learners must be paid at least 75 percent of the applicable minimum
wage, with limits on the number of hours of employment training each
week at subminimum wages. Employment of a student-learner must not have
the effect of displacing an employee of the establishment, nor depress
wages or working standards for experienced workers in comparable work,
nor impair the development or continuation of apprenticeship standards
in the occupation or industries. Separate applications must be
submitted for each student-learner, describing the vocational training
program in detail and demonstrating how it relates to the jobs to be
performed by the student-learner.
Under Part 527, student-workers are pupils enrolled in an
educational institution who are at least 16 years old (18 if employed
in certain hazardous occupations) and who are employed on a part-time
basis in shops owned by the educational institution for the purpose of
enabling the students to defray part of their school expenses. Student-
workers employed under a special certificate must be paid no less than
75 percent of the applicable minimum wage. Certificates specify the
number of students authorized on any day, the rates permitted during
the training period, and length of the training period for each
occupation (not to exceed one school year). Certificates are submitted
by each educational institution seeking to employ student-workers.
Under Part 521, apprentices at least sixteen years old (eighteen if
employed in certain hazardous occupations) may be employed at less than
the applicable minimum wage in skilled trades under registered
apprenticeship programs. Apprentices must receive a progressively
increasing schedule of wages which average at least 50 percent of the
journeyman level rate over the period of apprenticeship (one year or
more [2,000 or more hours] of work experience). The Department of
Labor's Bureau of Apprenticeship and Training (BAT) establishes
criteria and registration procedures for both individual apprentices
and employer apprenticeship plans.
Under Part 523, messengers employed primarily to deliver letters
and messages may be paid subminimum wages to prevent curtailment of
employment opportunities. Applications may be filed by an employer or
an employee or group of employers or employees.
The use of these certificates was prevalent when the wages paid in
many industries were equal to or very near the minimum wage. As the
prevailing wage rates increased to levels well above the statutory
minimum wage, fewer employees were willing to work at subminimum wage
rates. Over the last twenty-five years, very few employers have applied
for special certificates, except in the student-learner program.
The learner program, which includes learners, student-learners, and
student-workers, historically was one of the largest subminimum wage
programs. As wage rates rose in many industries employing learners and
an adequate supply of experienced workers was available, the use of
learner certificates declined. At its peak in 1962, over 2,200
certificates covering more than 46,000 learners were issued. The use of
student-learner certificates rose to over 17,000 in 1975, but has
fallen in recent years. Currently less than 800 student-learner
certificates are issued each year. Because of the narrow focus of the
student-worker program, the most certificates ever issued was 33
(covering 1,320 workers) in 1961.
About 900 apprentice certificates were issued in 1967, mostly in
the Caribbean area (838). Regulations issued by the BAT no longer
permit the payment of subminimum wages to apprentices. The Wage and
Hour Division, therefore, has not issued any special certificates for
apprentices since 1987.
On March 29, 1976, the Secretary of Labor presented a report to
Congress in response to the directive of section 4(d)(2) of FLSA to
conduct studies on the justification or lack thereof of each special
exemption issued under section 14 of the Act. The Secretary reported
that section 14(d), added by the 1974 FLSA Amendments, which made
provision for a minimum wage and overtime exemption without requiring a
special certificate for elementary or secondary school students
employed by their schools, may have the impact of eliminating the need
for the student-worker program. The Secretary recommended, however,
that section 14(a) continue to make provisions for special employment
of student-workers until the impact of section 14(d) could be
evaluated.
No regulations regarding the provisions of section 14(d) were
[[Page 7097]]
promulgated. In the absence of regulations, the Department decided to
take no action with respect to public or private elementary or
secondary school students employed by their schools in various school-
related work programs if their employment complied with the FLSA child
labor provisions. Since enactment of section 14(d), no student-worker
certificates have been issued.
In his report of March 29, 1976, the Secretary of Labor also
recommended that the provisions authorizing subminimum wages for
messengers be deleted from the FLSA. He also determined that the
special provisions for learners could no longer be justified and should
be limited to student-workers and student-learners. The report also
recommended that the provisions for apprentices be retained until the
impact of proposed BAT regulations could be evaluated. No action was
taken on these recommendations and the section 14 requirements remain
in the FLSA; thus there is a continuing need for these rules.
III. Summary and Discussion
This rule proposes to remove the regulation at 29 CFR Part 527,
Employment of Student-Workers, and reserve the part. Section 14(d) of
the FLSA makes provision for a minimum wage and overtime exemption for
elementary or secondary school students employed by their schools where
such employment is an integral part of the regular education program.
In the absence of regulations regarding section 14(d), the Department
has taken no action with respect to public or private elementary or
secondary school students employed by their school in various school-
related work programs if employed in compliance with the FLSA child
labor provisions. Since section 14(d) of the FLSA was enacted in 1974,
no applications for student-worker certificates have been submitted by
any type of school, elementary, secondary or any other. The existing
rule is unnecessary.
This rule proposes to merge the regulations at 29 CFR Parts 520,
521, 522, and 523 into one new Part 520 and to reserve the remaining
sections. This proposal eliminates repetition of text contained in each
separate regulation. Those sections overtaken by requirements of the
Administrative Procedure Act were also deleted. The essential
requirements contained in the current regulations are maintained in
this revision. The language and context of these regulations have been
simplified, shortened, and formatted to make them easier to understand.
As discussed above, the use of special certificates to employ
messengers, learners, and apprentices at subminimum wages has declined
considerably. It is appropriate to replace extended pages of obsolete
regulations by consolidating these rules. This proposal, where
possible, supplants the current language containing specific
requirements with more general criteria common to all of the programs.
Since long-standing regulatory requirements are being removed, a
comment period is being provided. The Department does not expect to
increase the number of certificates issued under these proposals
because the economic conditions stated above are unchanged.
The specific criteria currently contained in 29 CFR Parts 520, 521,
522, and 523 will be replaced by the requirements of 29 CFR Part 520,
subparts D and E. Applicants will be required to demonstrate that the
criteria for issuance of special certificates have been met. Those
situations where special certificates will not be issued have been
clarified.
The proposed rule eliminates the previous industry specific
learning periods for learners and replaces them with a standardized
period of 240 hours absent extraordinary circumstances relating to a
particular occupation warranting a longer learning period. It also
removes the different learner program standards for new plants and
established plants. The Department welcomes comments from the public
regarding the establishment of a standardized learning period and
whether 240 hours is an appropriate length.
The requirement to publish in the Federal Register a list of
learner certificates issued has been removed as they are so few in
number in recent years and no purpose is served by the publication of
such a list. Interested parties may contact the agency for this
information. This proposal removes any requirement that a hearing be
held when an interested party objects to a certificate being issued or
denied and replaces it with an informal reconsideration procedure that
is more responsive to such parties. The period for requesting
reconsideration and review has been extended to 60 days to accommodate
those programs that previously required publishing a list of
certificates issued in the Federal Register. The proposed rule also
removes a section which allowed nonregistered apprenticeship agreements
to be submitted for consideration when applying for a special
certificate. Only properly registered apprenticeship agreements will be
accepted in the future.
The proposed rule permanently fixes, as the basis for establishing
the special minimum wages that may be paid to messengers and learners
(including student-learners) under section 14(a), the minimum wage
applicable under section 6(a). This precludes combining the use of the
youth opportunity wage established under section 6(g) with the special
minimum wages authorized by section 14(a). It has been determined that
the minimum wage applicable under section 6(a), which is greater than
the youth opportunity wage, is both a necessary and a sufficient basis
to establish special minimum wages which prevent the curtailment of
employment opportunities as required by section 14(a).
The proposed rule also permanently sets the subminimum wage rate
that may be paid messengers and learners at 95 percent of the minimum
wage required by section 6(a) of the FLSA. This reflects the historical
difference between the minimum wage and the authorized subminimum wage
rate for learners, but it has always been stated in these sections as a
dollar amount (i.e. $4.10 per hour, $3.65 per hour). By setting the
authorized subminimum wage at a fixed percentage of the applicable
minimum wage, we will no longer have to amend these sections each time
the minimum wage is changed. All certificates issued under this rule
will list the authorized subminimum wage rate.
The proposal incorporates the Division's long-standing policy of
limiting the availability of special certificates for messengers to
those firms whose principal business is the delivery of such letters
and messages.
The changes discussed above will have no significant effect on the
current operation of these programs.
Executive Order 12866 and Significant Regulatory Actions
This rule is not a ``significant regulatory action'' within the
meaning of Executive Order 12866. The consolidation of the current
regulations at 29 CFR Parts 520, 521, 522, and 523, and the removal of
Part 527 does not affect the current operation of any program and this
action will not: (1) have an annual effect on the economy of $100
million or more or adversely affect in a material way the economy, a
sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local, or tribal
governments or communities; (2) create a serious inconsistency or
otherwise interfere with an action taken
[[Page 7098]]
or planned by another agency; (3) materially alter the budgetary impact
of entitlements, grants, user fees, or loan programs or the rights and
obligations of recipients thereof; or (4) raise novel legal or policy
issues arising out of legal mandates, the President's priorities, or
the principles set forth in Executive Order 12866. Therefore, no
regulatory impact analysis has been prepared.
Executive Order 12875 and Section 202 of the Unfunded Mandates Reform
Act of 1995
For purposes of the Unfunded Mandates Reform Act of 1995, as well
as Executive Order 12875, this rule does not include any federal
mandate that may result in increased expenditures by either state,
local and tribal governments in the aggregate, or by the private
sector.
Regulatory Flexibility Analysis
This rule will not have a significant economic impact on a
substantial number of small entities. The obligations and
responsibilities established under the existing regulations will remain
essentially the same under the proposed rule. The Department has
certified to this effect to the Chief Counsel for Advocacy of the U.S.
Small Business Administration. Therefore, no Regulatory Flexibility
Analysis is required.
Document Preparation: This document was prepared under the
direction and control of Maria Echaveste, Administrator, Wage and Hour
Division, Employment Standards Administration, U.S. Department of
Labor.
List of Subjects
29 CFR Part 520
Minimum wages, Reporting and recordkeeping requirements, Students,
Wage and Hour Division.
29 CFR Part 521
Manpower training programs, Minimum wages, Reporting and
recordkeeping requirements, Wage and Hour Division.
29 CFR Part 522
Cigar and cigarettes, Clothing, Electronic products, Manpower
training programs, Minimum wages, Reporting and recordkeeping
requirements, Wage and Hour Division.
29 CFR Part 523
Minimum wages, Wage and Hour Division.
29 CFR Part 527
Minimum wages, Reporting and recordkeeping requirements, Students,
Wage and Hour Division.
For the reasons set forth above, 29 CFR Part 520, 29 CFR Part 521,
29 CFR Part 522, 29 CFR Part 523, and 29 CFR Part 527 are proposed to
be amended as set forth below.
Signed at Washington, D.C. on the 6th day of February, 1997.
Maria Echaveste,
Administrator, Wage and Hour Division.
PART 521--[REMOVED AND RESERVED]
1.-2. Under the authority of Sec. 14, 52 Stat. 1068, as amended, 29
U.S.C. 214, unless otherwise noted, Title 29, Code of Federal
Regulations is proposed to be amended by removing part 521.
PART 522--[REMOVED AND RESERVED]
3. Under the authority of Sec. 14, 52 Stat. 1062, 1064 (29 U.S.C.
214); secs. 2-12, 60 Stat. 237-244 (5 U.S.C. 1001-1011), 29 U.S.C. 214,
Title 29, Code of Federal Regulations is proposed to be amended by
removing part 522.
PART 523--[REMOVED AND RESERVED]
4. Under the authority of Sec. 14, 52 Stat. 1068, as amended, 29
U.S.C. 214, Title 29, Code of Federal Regulations is proposed to be
amended by removing part 523.
PART 527--[REMOVED AND RESERVED]
5. Under the authority of Sec. 14, 52 Stat. 1068, as amended, 29
U.S.C. 214, Title 29, Code of Federal Regulations is proposed to be
amended by removing part 527.
PART 520--[REVISED]
6. Under the authority of Sec. 14, 52 Stat. 1068, as amended, 29
U.S.C. 214, Title 29, Code of Federal Regulations is proposed to be
amended by revising part 520 to read as follows:
PART 520--EMPLOYMENT UNDER SPECIAL CERTIFICATE OF MESSENGERS,
LEARNERS (INCLUDING STUDENT-LEARNERS), AND APPRENTICES
Subpart A--[Reserved]
Subpart B--What Are The General Provisions Governing the Employment of
Messengers, Learners (Including Student-Learners), and Apprentices at
Subminimum Wages?
Sec.
520.200 What is the legal authority for payment of wages lower than
the minimum wage required by section 6(a) of the Fair Labor
Standards Act?
520.201 How are those classifications of workers which may be paid
subminimum wages under section 14(a) of the Fair Labor Standards Act
defined?
520.202 How do persons who want to apply for a particular
certificate find out what is needed?
520.203 What records does an employer have to keep when subminimum
wage certificates are granted? How long do they have to be kept?
520.204 If someone does not agree with the Department of Labor's
decision on a certificate, can the decision be appealed?
520.205 How do these rules affect other Federal, state and local
laws and collective bargaining agreements?
Subpart C--Definitions
Subpart D--Messengers, Learners (Excluding Student-Learners), and
Apprentices
520.400 Who are messengers, learners, and apprentices?
520.401 Are there any industries, occupations, etc. that do not
qualify for a certificate to employ messengers, learners, or
apprentices at subminimum wages?
520.402 How do I obtain authority to employ messengers, learners,
or apprentices at subminimum wages?
520.403 What information is required when applying for authority to
pay less than the minimum wage?
520.404 What must I demonstrate in my application for a messenger,
learner, or apprentice certificate to receive a favorable review?
520.405 Must I notify my employees that I am applying for a
certificate to employ messengers and/or learners at subminimum
wages?
520.406 What happens once I have submitted my request for
authorization to pay messengers, learners, or apprentices subminimum
wages?
520.407 What is the subminimum wage for messengers and what must I
do to comply with the terms of my certificate?
520.408 What is the subminimum wage for learners and what must I do
to comply with the terms of my certificate?
520.409 When will authority to pay apprentices special minimum
wages become effective and what is the special minimum wage rate?
[[Page 7099]]
520.410 How long does a messenger, learner, or apprentice
certificate remain in effect?
520.411 Does a certificate authorizing payment of subminimum wages
to messengers and/or learners remain in effect during the renewal
process?
520.412 What records, in addition to those required by part 516 of
this chapter and Sec. 520.203 of this part, must I keep relating to
the employment of messengers, learners, or apprentices under special
certificate?
Subpart E--Student-Learners
520.500 Who is a student-learner?
520.501 How do I obtain authority to employ student-learners at
subminimum wages?
520.502 What information must an application to employ student-
learners at subminimum wages contain?
520.503 What must I demonstrate in my application for a student-
learner certificate to receive a favorable review?
520.504 When will authority to pay student-learners subminimum
wages become effective?
520.505 How will I be notified that my request to employ student-
learners at subminimum wages has been denied and can I appeal the
denial?
520.506 What is the subminimum wage for student-learners and what
must I do to comply with the terms of my student-learner
certificate?
520.507 How long does my certificate remain in effect?
520.508 What records, in addition to those required by part 516 of
this chapter and Sec. 520.203 of this part, must I keep when
student-learners are employed?
Authority: Sec. 14, 52 Stat. 1062, 1064 (29 U.S.C. 214); secs.
2-12, 60 Stat. 237-244; (5 U.S.C. 1001-1011); 52 Stat. 1068, as
amended, 29 U.S.C. 214.
PART 520--EMPLOYMENT UNDER SPECIAL CERTIFICATE OF MESSENGERS,
LEARNERS (INCLUDING STUDENT-LEARNERS), AND APPRENTICES
Subpart A--[Reserved]
Subpart B--What Are the General Provisions Governing the Employment
of Messengers, Learners (Including Student-Learners), and
Apprentices at Subminimum Wages?
Sec. 520.200 What is the legal authority for payment of wages lower
than the minimum wage required by section 6(a) of the Fair Labor
Standards Act?
Section 14(a) of the Fair Labor Standards Act provides, in order to
prevent curtailment of employment opportunities, for the payment of
special minimum wage rates to workers employed as messengers, learners
(including student-learners), and apprentices under special
certificates issued by the Department of Labor.
Sec. 520.201 How are those classifications of workers which may be
paid subminimum wages under section 14(a) of the Fair Labor Standards
Act defined?
(a) A messenger is a worker who is primarily engaged in delivering
letters and messages for a firm whose principal business is the
delivery of such letters and messages.
(b) A learner is a worker who is being trained for an occupation,
which is not customarily recognized as an apprenticeable trade, for
which skill, dexterity and judgment must be learned and who, when
initially employed, produces little or nothing of value. Except in
extraordinary circumstances, an employee cannot be considered a
``learner'' once he/she has acquired a total of 240 hours of job-
related and/or vocational training with the same or other employer(s)
or training facility(ies) during the past three years. An individual
qualifying as a ``learner'' may only be trained in two qualifying
occupations.
(c) A student-learner is a student who is at least sixteen years of
age, or at least eighteen years of age if employed in an occupation
which the Secretary has declared to be particularly hazardous, who is
receiving instruction in an accredited school, college or university
and who is employed on a part-time basis, pursuant to a ``bona fide
vocational training program'' as defined in subpart C of this part.
(d) An apprentice is a worker, at least sixteen years of age unless
a higher minimum age standard is otherwise fixed by law, who is
employed to learn a skilled trade through a registered apprenticeship
program. Training is provided through structured on-the-job training
combined with supplemental related theoretical and technical
instruction. This term excludes pre-apprentices, trainees, learners,
and student-learners. The terms learner and student-learner are defined
in subpart C of this part. Standards governing the registration of
apprenticeship programs are established and administered by the U. S.
Department of Labor, Employment and Training Administration, Bureau of
Apprenticeship and Training (BAT) and are found in part 29 of this
title.
(e) Additional terms used in this part are defined in subpart C.
Sec. 520.202 How do persons who want to apply for a particular
certificate find out what is needed?
The application process, terms, conditions and requirements of
certificates and other matters are discussed in subparts D and E of
this part. Messengers, learners (excluding student-learners), and
apprentices are discussed in subpart D and student-learners in subpart
E.
Sec. 520.203 What records does an employer have to keep when
subminimum wage certificates are granted? How long do they have to be
kept?
(a) In addition to other records required under the record-keeping
regulations (part 516 of this chapter), the employer is required to
keep records specific to certification under section 14(a) of the Fair
Labor Standards Act. All workers employed under a subminimum wage
certificate shall be designated as such on the employer's payroll
records. Further recordkeeping requirements are described in each
applicable subpart of this part (see Secs. 520.412 and 520.508).
(b) Employers must maintain and preserve all required records for
at least three years from the last date of employment under a
subminimum wage program. The employer's copy of the application and the
certificate shall also be maintained for three years. Such records
shall be kept secure and accessible at the place of employment or where
payroll records are customarily maintained. All records must be
available for inspection and copying by the Administrator.
Sec. 520.204 If someone does not agree with the Department of Labor's
decision on a certificate, can the decision be appealed?
(a) Any person, applicant, trade union, association, etc. who does
not agree with action granting or denying a certificate (pursuant to
Secs. 520.406 and 520.505) may, within 60 days of that action or such
additional time as the Administrator may allow, file with the
Administrator a petition for review. The decision of the Administrator
becomes final unless such a written request is timely filed.
(b) Such requests should contain a statement of the additional
evidence which the person believes may materially affect the decision
and establish that there were reasonable grounds for failure to present
such evidence during the original certification process.
(c) If a request for reconsideration or review is granted, the
Administrator, to the extent it is deemed appropriate, may afford other
interested persons an opportunity to present data and views.
(d) The Administrator may conduct an investigation, which may
include a hearing, prior to taking any action pursuant to this part.
[[Page 7100]]
Sec. 520.205 How do these rules affect other Federal, state and local
laws and collective bargaining agreements?
No provision of this part, or of any special minimum wage
certificate issued thereunder, shall excuse noncompliance with any
other Federal or state law or municipal ordinance or collective
bargaining agreement establishing higher standards.
Subpart C--Definitions
Administrator means the Administrator of the Wage and Hour
Division, Employment Standards Administration, United States Department
of Labor, or his/her authorized representative.
Apparel industry means the manufacturing of the following products
as referred to in subpart D of this part:
(1) Rainwear means the manufacture of waterproofed garments and
raincoats from oiled cloth or other materials, whether vulcanized,
rubberized, cravenetted, or otherwise processed.
(2) Leather and sheep-lined clothing means the manufacture of
leather, leather-trimmed and sheeplined garments for men, women or
children.
(3) Women's apparel division of the apparel industry for the
manufacture of women's, misses', and juniors' dresses means the
production of women's, misses' and juniors' dresses; washable service
garments; blouses from woven or purchased knit fabric; women's,
misses', children's and infants' underwear, nightwear and negligees
from woven fabrics; corsets and other body supporting garments from any
material; infants' and children's outerwear; and other garments similar
to them.
(4) Robes, means the manufacture of robes from any woven material
or from purchased knitted materials, including, without limitation,
men's women's and children's bath, lounging and beach robes and
dressing gowns.
Apprentice means a worker, at least sixteen years of age unless a
higher minimum age standard is otherwise fixed by law, who is employed
to learn a skilled trade through a registered apprenticeship program.
Training is provided through structured on-the-job training combined
with supplemental related theoretical and technical instruction. This
term excludes pre-apprentices, trainees, learners, and student-
learners. The terms learner and student-learner are defined in this
subpart.
Apprenticeship agreement means a written agreement between an
apprentice and either his/her employer, or an apprenticeship committee
acting as agent for employer(s), which agreement contains the terms and
conditions of the employment and training of the apprentice.
Apprenticeship committee means those persons designated by the
sponsor to act for it in the administration of the program. A committee
may be ``joint'', i.e., it is composed of an equal number of
representatives of the employer(s) and of the employees represented by
a bona fide collective bargaining agent(s) and has been established to
conduct, operate, or administer an apprenticeship program and enter
into apprenticeship agreements with apprentices. A committee may be
``unilateral'' or ``non-joint'' and shall mean a program sponsor in
which a bona fide collective bargaining agent is not a participant.
Apprenticeship program means a plan containing all terms and
conditions for the qualification, recruitment, selection, employment
and training of apprentices, including such matters as the requirements
for a written apprenticeship agreement.
BAT means the Bureau of Apprenticeship and Training, Employment and
Training Administration, United States Department of Labor.
Bona fide vocational training program means a program authorized
and approved by a state board of vocational education or other
recognized educational body that provides for part-time employment
training which may be scheduled for a part of the work day or workweek,
for alternating weeks or for other limited periods during the year,
supplemented by and integrated with a definitely organized plan of
instruction designed to teach technical knowledge and related
industrial information given as a regular part of the student-learner's
course by an accredited school, college, or university.
Department means the United States Department of Labor.
Experienced worker means a worker whose total experience in an
authorized learner occupation in the industry, including vocational
training, within the past three years is equal to 240 hours or such
other period as authorized by a learner certificate issued pursuant to
the regulations in this part.
Experienced worker available for employment means an experienced
worker residing within the area from which the plant/business
customarily draws its labor supply or within a reasonable commuting
distance of such area, and who is willing and able to accept employment
in the plant/business; or an experienced worker residing outside of the
area from which the plant/business customarily draws its labor supply,
who has in fact made himself or herself available for employment at the
plant/business.
FLSA means the Fair Labor Standards Act of 1938 as amended (29
U.S.C 201 et seq.).
Learner means a worker who is being trained for an occupation,
which is not customarily recognized as an apprenticeable trade, for
which skill, dexterity and judgment must be learned and who, when
initially employed produces little or nothing of value. Except in
extraordinary circumstances, an employee cannot be considered a
``learner'' once he/she has acquired a total of 240 hours of job-
related and/or vocational training with the same or other employer(s)
or training facility(ies) during the past three years. An individual
qualifying as a ``learner'' may only be trained in two qualifying
occupations.
Learning period means a period of time measured in work hours and
vocational training hours that is normally required to fully train an
inexperienced worker in a particular occupation within an industry
where the learner is employed. The learning period will not exceed 240
hours for any qualifying occupation except in extraordinary
circumstances where the employer demonstrates that the occupation to be
learned requires an extended period of specialized training.
Men's and boys' clothing industry means the industry which
manufactures men's, youths', and boys' suits, coats, and overcoats.
Messenger means a worker who is primarily engaged in delivering
letters and messages for a firm whose principal business is the
delivery of such letters and messages.
Minimum wage means the wage rate required by section 6 of FLSA. For
purposes of this part, subminimum wage rates are based exclusively on
the applicable minimum wage provided by section 6(a).
Recognized apprenticeship agency means either a state
apprenticeship agency recognized by the BAT, or if no such
apprenticeship agency exists in the state, the BAT.
Registered apprenticeship program or agreement means a program or
agreement which has been approved by a recognized apprenticeship agency
as meeting the basic standards of apprenticeship adopted and published
by BAT.
Secretary or Secretary of Labor means the Secretary of Labor,
United States Department of Labor or his/her authorized representative.
Shoe manufacturing industry means the manufacture or partial
manufacture of footwear from any material and by
[[Page 7101]]
any process except knitting, vulcanizing of the entire article or
vulcanizing (as distinct from cementing) of the sole to the upper,
including the manufacturing of the following: athletic shoes; boots;
boot tops; burial shoes; custom-made boots or shoes; moccasins;
puttees, except spiral puttees; sandals; shoes completely rebuilt in a
shoe factory; slippers. This term also includes the manufacture from
leather or from any shoe-upper material of all cut stock and findings
for footwear, including bows, ornaments, and trimmings. It also
includes the manufacture of cutsoles; midsoles; insoles; taps; lifts;
rands; toplifts; bases; shanks; boxtoes; counters; stays; stripping;
sock linings; and heel pads. Shoe manufacturing also includes the
manufacture of heels from any material except molded rubber, but not
including the manufacture of woodheel blocks; the manufacture of cut
upper parts for footwear, including linings, vamps and quarters; and
the manufacture of pasted shoe stock; as well as the manufacture of
boot and shoe patterns. However, the manufacture of cut stock and
findings is included within this definition only when performed by
companies engaged in the production of shoes who incorporate most of
the cut stock and findings in the manufacture of their product(s).
Skilled trade means an apprenticeable occupation which possesses
all of the following characteristics:
(1) It is customarily learned in a practical way through a
structured, systematic program of on-the-job supervised training.
(2) It is clearly identified and commonly recognized throughout an
industry.
(3) It involves manual, mechanical or technical skills and
knowledge which require a minimum of 2,000 hours of on-the-job work
experience.
(4) It requires related instruction to supplement the on-the-job
training.
(5) It is not merely a part of an apprenticeable occupation and
does not fall into any of the following categories: marketing; sales
administration; administrative support; executive and managerial;
professional and semi-professional occupations (this category covers
occupations for which entrance requirements customarily include
education of college level).
Standards of apprenticeship means the apprenticeship program is an
organized, written plan embodying the terms and conditions of
employment, training, and supervision of one or more apprentices in the
apprenticeable occupation, which meets the requirements established by
BAT, and is subscribed to by a sponsor who has undertaken to carry out
the apprentice training program.
State means any state of the United States or the District of
Columbia or any territory or possession of the United States.
Student-learner means a student who is at least sixteen years of
age, or at least eighteen years of age if employed in an occupation
which the Secretary has declared to be particularly hazardous, who is
receiving instruction in an accredited school, college or university
and who is employed by an establishment on a part-time basis, pursuant
to a bona fide vocational training program.
Subminimum wage means the rates which may be paid under temporary
authorization or under certificate as provided by section 14(a) of FLSA
and this part.
Vocational Training Program. See ``Bona fide vocational training
program''.
Wage and Hour Division means the Wage and Hour Division, Employment
Standards Administration, United States Department of Labor.
Subpart D--Messengers, Learners (Excluding Student-Learners), and
Apprentices
Sec. 520.400 Who are messengers, learners, and apprentices?
The terms messenger, learner, and apprentice are defined in subpart
C of this part.
Sec. 520.401 Are there any industries, occupations, etc. that do not
qualify for a certificate to employ messengers, learners, or
apprentices at subminimum wages?
(a) Certificates to employ messengers at subminimum wages are
available to only those establishments engaged in the business of
providing messenger service, i.e., the delivery of letters and
messages. Requests for such certificates are uniformly denied to
applicants whose principal business purpose is not the delivery of
messages and letters.
(b) All applications for special certificates authorizing the
employment of learners at subminimum wage rates in the manufacture of
products in the following industries shall be denied (definitions for
all listed activities can be found in subpart C of this part):
(1) In the apparel industry:
(i) Rainwear;
(ii) Leather and sheep-lined clothing;
(iii) Women's apparel division of the apparel industry for the
manufacture of women's, misses', and juniors' dresses;
(iv) Robes;
(2) Shoe manufacturing industry; and
(3) Men's and boys' clothing industry.
(c) No certificates will be granted authorizing the employment of
learners at subminimum wage rates as homeworkers; in maintenance
occupations such as guard, porter, or custodian; in office and clerical
occupations in any industry; or in operations of a temporary or
sporadic nature.
(d) Authorization to employ apprentices at subminimum wages will
only be granted if permitted by the BAT regulations (29 CFR part 29).
Sec. 520.402 How do I obtain authority to employ messengers, learners,
or apprentices at subminimum wages?
(a) Employers wishing to employ messengers, learners, or
apprentices as defined in subpart C of this part at subminimum wages
must apply for authority to do so from the Administrator at the Wage
and Hour Division's Regional Office having administrative jurisdiction
over the geographic area in which the employment is to take place. To
obtain the address of the Regional Office which services your
geographic area, please contact your local Wage and Hour Office (under
``Department of Labor'' in the blue pages of your local telephone
book).
(b) In the case of messengers, such application may be filed by an
employer or group of employers. Preferential consideration will be
given to applications filed by groups or organizations which are deemed
to be representative of the interests of a whole industry or branch
thereof.
Sec. 520.403 What information is required when applying for authority
to pay less than the minimum wage?
(a) A separate application must be made for each plant or
establishment requesting authorization for employment of messengers
and/or learners at subminimum wages, on the official form furnished by
the Wage and Hour Division, containing all information required by the
form including:
(1) Information concerning efforts made by the applicant to obtain
experienced workers in occupation(s) for which learners are requested;
(2) The occupations/industry in which the messenger(s) and/or
learner(s) are to be employed;
(3) A statement explaining why employment of messenger(s) and/or
learner(s) at subminimum wages is needed to prevent curtailment of
employment opportunities;
(4) The number of messengers and/or learners the applicant
anticipates employing at subminimum wages under special certificate;
[[Page 7102]]
(5) If requesting authorization for the employment of learners at
subminimum wages for a learning period greater than 240 hours,
information pertinent to the extraordinary circumstances necessitating
such a request. While each such request will be considered on its own
merit, it is anticipated that such authorizations would be limited to
occupations requiring an extended period of specialized training;
(6) The number of messengers and/or learners hired at subminimum
wages during the twelve-month period prior to making application;
(7) Total number of nonsupervisory workers in the particular plant
or establishment for which a certificate is requested;
(8) The number of experienced workers in the learner occupations
and their straight-time average hourly earnings during the last payroll
period and the corresponding payroll period in the prior year; and
(9) The type of equipment to be used by learners.
(b) For apprentices, the employer or apprenticeship committee must
submit a copy of the registered apprenticeship program.
(c) Any applicant may also submit such additional information as
may be pertinent. Applications which fail to provide the information
required by the form may be returned to the applicant with a notation
of deficiencies and without prejudice against submission of a new or
revised application.
Sec. 520.404 What must I demonstrate in my application for a
messenger, learner, or apprentice certificate to receive a favorable
review?
(a) The application must demonstrate that a certificate is
necessary in order to prevent the curtailment of opportunities for
employment.
(b) The issuance of a messenger and/or learner certificate must not
tend to create unfair competitive labor cost advantages nor have the
effect of impairing or depressing wage rates or working standards of
experienced workers performing work of a like or comparable character
in the industry.
(c) Abnormal labor conditions such as a strike, lock-out, or other
similar condition, must not exist at the plant or establishment for
which a messenger and/or learner certificate is requested.
(d) It must be shown that an adequate supply of qualified
experienced workers is not available for employment in those
occupations for which authorization to pay subminimum wages to learners
has been requested; that the experienced workers presently employed in
the plant or establishment in occupations in which learners are
requested are afforded an opportunity, to the fullest extent possible,
for full-time employment upon completion of the learning period; and
that learners are available for employment.
(e) Reasonable efforts must have been made to recruit workers paid
at least the minimum wage in those occupations in which certificates to
employ learners at subminimum wages have been requested. This includes
the placement of an order with the local State or Territorial Public
Employment Service Office (except in possessions where there is no such
office) not more than fifteen days prior to the date of application.
Written evidence from such office that the order has been placed shall
be submitted by the employer with the application.
(f) The occupation or occupations in which learners are to receive
training must involve a sufficient degree of skill to necessitate an
appreciable learning period.
(g) An apprenticeship program must conform with or substantially
conform with the standards of apprenticeship as defined in subpart C of
this part.
(h) There must be no serious outstanding violations involving the
employee(s) for whom a certificate is being requested nor any serious
outstanding violations of a certificate previously issued, nor any
serious violations of the FLSA which provide reasonable grounds to
conclude that the terms of a certificate may not be complied with, if
issued.
Sec. 520.405 Must I notify my employees that I am applying for a
certificate to employ messengers and/or learners at subminimum wages?
Upon making application for a messenger and/or learner certificate
or for renewal thereof, an employer shall post a copy of the first page
of the completed application form in a conspicuous place in each
department of the plant or establishment where he/she proposes to
employ messengers and/or learners at subminimum wage rates. Such notice
shall remain posted until the application is acted upon by the
Administrator.
Sec. 520.406 What happens once I have submitted my request for
authorization to pay messengers, learners, or apprentices subminimum
wages?
(a) All applications submitted for authorization to pay wages lower
than those required by section 6(a) of the FLSA will be considered and
acted upon (issued or denied) subject to the conditions specified in
Secs. 520.403 and 520.404.
(b) If, in the case of messengers and/or learners, available
information indicates that the requirements of this part are satisfied,
the Administrator shall issue a special certificate which will be
mailed to to the employer. If a special certificate is denied, the
employer shall be given written notice of the denial. If a messenger
and/or learner certificate is denied, notice of such denial shall be
without prejudice to the filing of any subsequent application.
(c) If, in the case of apprentices, the apprenticeship agreement
and others available information indicate that the requirements of this
part are satisfied, the Administrator shall issue a special
certificate. The special certificate, if issued, shall be mailed to the
employer or the apprenticeship committee and a copy shall be mailed to
the apprentice. If a special certificate is denied, the employer or the
apprenticeship committee, the apprentice and the recognized
apprenticeship agency shall be given written notice of the denial. The
employer shall pay the apprentice the minimum wage applicable under
section 6(a) of the FLSA from the date of receipt of notice of such
denial.
Sec. 520.407 What is the subminimum wage for messengers and what must
I do to comply with the terms of my certificate?
(a) A messenger certificate, if issued, shall specify:
(1) The subminimum wage rate of not less than 95 percent of the
applicable minimum wage required by section 6(a) of the FLSA; and
(2) The effective and expiration dates of the certificate.
(b) The employer shall post a copy of the messenger certificate
during its effective period in a conspicuous place where it can be
readily seen by employees.
(c) No messenger shall be hired under a messenger certificate while
abnormal labor conditions such as a strike, lock-out, or other similar
condition, exist.
Sec. 520.408 What is the subminimum wage for learners and what must I
do to comply with the terms of my certificate?
(a) All learner certificates shall specify:
(1) The subminimum wage rate of not less than 95 percent of the
applicable minimum wage required by section 6(a) of the FLSA;
(2) The number or proportion of learners authorized to be employed
on any one day;
(3) The occupations in which learners may be employed;
(4) The authorized learning period of not more than 240 hours,
except in
[[Page 7103]]
extraordinary situations as discussed in Sec. 520.403; and
(5) The effective and expiration dates of the certificate.
(b) Learners properly hired prior to the date on which a learner
certificate expires may be continued in employment at subminimum wage
rates for the duration of their authorized learning period under the
terms of the certificate, even though the certificate may expire before
the learning period is completed.
(c) The employer shall post a copy of the learner certificate
during its effective period and thereafter until all authorized
learners have completed their learning period(s). The certificate shall
be posted in a conspicuous place in each department of the plant where
learners are to be employed.
(d) No learners shall be hired under a learner certificate if, at
the time the employment begins, experienced workers capable of equaling
the performance of a worker of minimum acceptable skill are available
for employment. Before hiring learners during the effective period of
the certificate, the employer shall place an order for experienced
workers with the local State or Territorial Public Employment Service
Office (except in possessions where there is no such office) or have
such an active order on file. Written evidence that an order has been
placed or is on active file shall be maintained in the employer's
records.
(e) No learner shall be hired under a learner certificate while
abnormal labor conditions such as a strike, lock-out, or other similar
condition exist in the plant or establishment.
(f) For each individual learner, the number of hours of previous
employment and hours of vocational or similar facility(ies) training
must be deducted from the authorized learning period if within the past
three years the learner has been employed or received vocational
training in a given occupation and industry.
(g) If experienced workers are paid on a piece rate basis, learners
shall be paid at least the same piece rates as experienced workers
employed on similar work in the plant and shall receive earnings based
on such piece rates whenever such earnings exceed the subminimum wage
rates permitted in the certificate.
Sec. 520.409 When will authority to pay apprentices special minimum
wages become effective and what is the special minimum wage rate?
(a) An apprenticeship program which has been registered with a
recognized apprenticeship agency shall constitute a temporary special
certificate authorizing the employment of an apprentice at the wages
and under the conditions specified in such program until a special
certificate is issued or denied. This temporary authorization is,
however, conditioned on the requirement that within 90 days from the
beginning date of employment of the apprentice, the employer or the
apprenticeship committee shall send one copy of each apprenticeship
agreement, with evidence of registration, to the appropriate Regional
Office of the Wage and Hour Division.
(b) The wage rate specified by the apprenticeship program becomes
the special minimum wage rate that must be paid unless the
Administrator issues a certificate modifying the terms and conditions
of employment of apprentices at special minimum wages.
Sec. 520.410 How long does a messenger, learner, or apprentice
certificate remain in effect?
(a) Messenger and/or learner certificates may be issued for a
period of not longer than one year.
(b) Each special apprentice certificate shall specify the
conditions and limitations under which it is granted, including the
periods of time during which subminimum wage rates may be paid pursuant
to a registered apprenticeship program.
(c) No certificate may be issued retroactively.
(d) The Administrator may amend the provisions of a certificate
when necessary to correct omissions or defects in the original
certificate or reflect changes in this part.
Sec. 520.411 Does a certificate authorizing payment of subminimum
wages to messengers and/or learners remain in effect during the renewal
process?
(a) Application for renewal of a messenger and/or learner
certificate shall be made on the same form as described in this section
and employees shall be advised of such renewal application in the same
manner as explained in Sec. 520.405. No effective messenger and/or
learner certificate shall expire until action on an application for
renewal shall have been finally determined, provided that such
application has been properly executed in accordance with the
requirements, and filed with and received by the Administrator not less
than fifteen nor more than thirty days prior to the expiration date. A
final determination means either the granting of or initial denial of
the application for renewal of a messenger and/or learner certificate,
or withdrawal of the application. A ``properly executed application''
is one which contains the complete information required on the form,
and the required certification by the applicant.
(b) A renewal certificate will not be issued unless there is a
clear showing that the conditions set forth in Sec. 520.404 still
prevail.
Sec. 520.412 What records, in addition to those required by part 516
of this chapter and Sec. 520.203 of this part, must I keep relating to
the employment of messengers, learners, or apprentices under special
certificate?
(a) Each worker employed as a messenger, learner, or apprentice
under a certificate shall be designated as such on the employer's
payroll records. All such messengers, learners, or apprentices shall be
listed together as a separate group on the payroll records, with each
messenger's, learner's, or apprentice's occupation being shown.
(b) At the time learners are hired, the employer shall also obtain
and keep in his/her records a statement signed by each employee showing
all applicable experience which the learner had in the employer's
industry, including vocational training, during the preceding three
years. The statement shall contain the dates of such previous
employment, names and addresses of employers, the occupation or
occupations in which the learner was engaged and the types of products
upon which the learner worked. The statement shall also contain
information concerning pertinent training in vocational training
schools or similar training facilities, including the dates of such
training and the identity of the vocational school or training
facility. If the learner has had no applicable experience or pertinent
training, a statement to that effect signed by the learner shall
likewise be kept in the employer's records.
(c) The employer shall maintain a file of all evidence and records,
including any correspondence, pertaining to the filing or cancellation
of job orders placed with the local State or Territorial Public
Employment Service Office pertaining to job orders for occupations to
be performed by learners.
(d) Every employer who employs apprentices under temporary or
special certificates shall preserve for three years from the last
effective date of the certificate copies of the apprenticeship program,
apprenticeship agreement and special certificate under which such an
apprentice is employed.
(e) Every apprenticeship committee which holds a certificate under
this part shall keep the following records for each apprentice under
its control and supervision:
[[Page 7104]]
(1) The apprenticeship program, apprenticeship agreement and
special certificate under which the apprentice is employed by an
employer;
(2) The cumulative amount of work experience gained by the
apprentice, in order to establish the proper wage at the time of his/
her assignment to an employer; and
(3) A list of the employers to whom the apprentice was assigned and
the period of time he/she worked for each employer.
(f) The records required in this section, including a copy of the
application(s) submitted and any special certificate(s) issued, shall
be kept and made available for inspection for at least three years from
the expiration date of the certificate(s).
Subpart E--Student-Learners
Sec. 520.500 Who is a student-learner?
The term student-learner is defined in subpart C.
Sec. 520.501 How do I obtain authority to employ student-learners at
subminimum wages?
(a) Employers wishing to employ student-learners at subminimum
wages must apply for authority to do so from the Administrator at the
Wage and Hour Division's Regional Office having administrative
jurisdiction over the geographic area in which the employment is to
take place. To obtain the address of the Regional Office which services
your geographic area, please contact your local Wage and Hour Office
(under ``Department of Labor'' in the blue pages of your local
telephone book).
(b) Application must be made on the official form furnished by the
Wage and Hour Division and must be signed by the employer, the
appropriate school official and the student-learner. A separate
application must be filed by the employer for each student-learner the
employer proposes to employ at subminimum wages.
Sec. 520.502 What information must an application to employ student-
learners at subminimum wages contain?
Student-learner applications must contain:
(a) A statement clearly outlining the vocational training program
and showing, particularly, the processes in which the student-learner
will be engaged when in training on the job;
(b) A statement clearly outlining the school instruction directly
related to the job;
(c) The total number of workers employed in the establishment;
(d) The number and hourly wage rates of experienced workers
employed in the occupation in which the student-learner is to be
trained;
(e) The hourly wage rate or progressive wage schedule which the
employer proposes to pay the student-learner;
(f) The age of the student-learner;
(g) The period of employment training at subminimum wages;
(h) The number of hours of employment training a week and the
number of hours of school instruction a week;
(i) A certification by the appropriate school official that the
student named on the application form will be receiving instruction in
an accredited school, college, or university and will be employed
pursuant to a bona fide vocational training program, as defined in
subpart C of this part. The certification by the school official must
satisfy the following conditions:
(1) The application must be properly executed in conformance with
Sec. 520.501;
(2) The employment training must conform with the provisions of
Sec. 520.503 (a), (c), (d), and (g) and paragraphs (a) and (c) of
Sec. 520.506;
(3) The occupation must not be one for which a student-learner
application was previously submitted by the employer and a special
certificate was denied by the Administrator.
Sec. 520.503 What must I demonstrate in my application for a student-
learner certificate to receive a favorable review?
Each student-learner application must demonstrate that:
(a) The training program under which the student-learner will be
employed is a bona fide vocational training program as defined in
subpart C of this part;
(b) The employment of the student-learner at subminimum wages
authorized by the special certificate must be necessary to prevent
curtailment of opportunities for employment;
(c) The student-learner is at least sixteen years of age, or at
least eighteen years of age if employed in any occupation which the
Secretary has declared to be particularly hazardous (see part 570,
subpart E, of this chapter, but note the specific exemptions for
student-learners in several of the orders);
(d) The occupation for which the student-learner is receiving
preparatory training requires a sufficient degree of skill to
necessitate a substantial learning period;
(e) The training is not for the purpose of acquiring manual
dexterity and high production speed in repetitive operations;
(f) The employment of a student-learner will not have the effect of
displacing a worker employed in the establishment;
(g) The employment of the student-learners at subminimum wages must
not tend to impair or depress the wage rates or working standards
established for experienced workers for work of a like or comparable
character;
(h) The occupational needs of the community or industry warrant the
training of student-learners;
(i) There are no serious outstanding violations of the provisions
of a student-learner certificate previously issued to the employer, or
serious violations of any other provisions of the FLSA by the employer
which provide reasonable grounds to conclude that the terms of the
certificate would not be complied with, if issued;
(j) The issuance of such a certificate would not tend to prevent
the development of apprenticeship programs in accordance with the
regulations applicable thereto (subpart D of this part) or would not
impair established apprenticeship standards in the occupation or
industry involved; and
(k) The number of student-learners to be employed in one
establishment is not more than a small proportion of its work force.
Sec. 520.504 When will authority to pay student-learners subminimum
wages become effective?
(a) Certification by the appropriate school official on an
application for a special student-learner certificate shall constitute
a temporary authorization. This temporary authorization is effective
from the date such application is forwarded to the Wage and Hour
Division in conformance with Sec. 520.501.
(b) At the end of 30 days, this application shall become the
permanent special student-learner certificate unless, after review, the
Administrator denies the application, issues a certificate with
modified terms and conditions, or expressly extends the period of
review.
Sec. 520.505 How will I be notified that my request to employ student-
learners at subminimum wages has been denied and can I appeal the
denial?
(a) If, after review, an application is denied, notification of
denial will be made to the appropriate school official, the employer
and the student. This notification will occur within 30 days following
the date such application was forwarded to the Wage and Hour Division,
unless additional time for
[[Page 7105]]
review is considered necessary or appropriate.
(b) If additional time for review is considered necessary or
appropriate, the proper school official, the employer, and the student
shall be so notified. To the extent feasible, the Administrator may
provide an opportunity to other interested persons to present data and
views on the application before denying a special student-learner
certificate.
(c) Whenever a notification of denial is mailed to the employer,
such denial shall be without prejudice to any subsequent application,
except under the circumstances referred to in Sec. 520.502(i)(3).
(d) Section 520.204 describes the procedures for requesting
reconsideration of a decision to grant or deny a certificate.
Sec. 520.506 What is the subminimum wage for student-learners and what
must I do to comply with the terms of my student-learner certificate?
(a) The special minimum wage rate paid to student-learners shall be
not less than 75 percent of the applicable minimum under section 6(a)
of the FLSA.
(b) Compliance with items listed for favorable review of a student-
learner application (Sec. 540.503) must be demonstrated.
(c) (1) The number of hours of employment training each week at
subminimum wages pursuant to a certificate, when added to the hours of
school instruction, shall not exceed 40 hours, except that
authorization may be granted by the Administrator for a greater number
of hours if found to be justified by extraordinary circumstances.
(2) When school is not in session on any school day, the student-
learner may work a number of hours in addition to the weekly hours of
employment training authorized by the certificate; provided,
(i) The total hours worked shall not exceed 8 hours on any such
day, and
(ii) A notation shall be made in the employer's records to the
effect that school not being in session was the reason additional hours
were worked on such day.
(3) During the school term, when school is not in session for the
entire week, the student-learner may work at his/her employment
training a number of hours in the week in addition to those authorized
by the certificate; provided,
(i) The total hours shall not exceed 40 hours in any such week, and
(ii) A notation shall be made in the employer's records to the
effect that school not being in session was the reason additional hours
were worked in such week.
(d) A special student-learner certificate shall not constitute
authorization to pay a subminimum wage rate to a student-learner in any
week in which he/she is employed for a number of hours in addition to
the number authorized in the certificate, except as provided in
paragraphs (c)(1), (2), and (3) of this section.
Sec. 520.507 How long does my certificate remain in effect?
(a) A special student-learner certificate shall be effective for a
period not to exceed the length of one school year unless a longer
period is found to be justified by extraordinary circumstances. These
circumstances must be explained in detail at the time of application.
While each such request will be considered on its own merit, it is
anticipated that such authorizations would be limited to occupations
requiring an extended period of specialized training;
(b) No certificate shall authorize employment training beyond the
date of graduation.
(c) No special student-learner certificate may be issued
retroactively.
Sec. 520.508 What records, in addition to those required by part 516
of this chapter and Sec. 520.203 of this part, must I keep when
student-learners are employed?
Any worker employed as a student-learner shall be identified as
such on the payroll records, with each student-learner's occupation and
rate of pay being shown. Notations should be made in the employer's
records when additional hours are worked by reason of school not being
in session.
[FR Doc. 97-3597 Filed 2-13-97; 8:45 am]
BILLING CODE 4510-27-P
