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National Center on Secondary Education and Transition

This document has been archived because some of the information it contains may be out of date. (6/09)

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


Section II

Questions and Answers

The U.S. Departments of Labor and Education have policy guidelines that apply to youth with disabilities in nonpaid, nonemployment relationships. A nonpaid, nonemployment relationship may occur as part of the career exploration, career assessment, and work-related training components of WBL programs. This section presents many questions frequently asked about these guidelines. Each question is followed by an answer developed by the U.S. Department of Education in collaboration with officials from the U.S. Department of Labor’s Wage and Hour Division.

Requirements for Participation

1. Which students may participate in work-based learning (WBL) programs under the policy guidelines for nonpaid, nonemployment relationships?

All students may participate; however, many states have specific guidelines for special education students allowing them to participate in extended WBL activities if it is determined appropriate for them.

2. How is it determined which students might need to participate in a WBL program?

The determination should be based on the individual student’s needs, taking into account the student’s preferences and interests. WBL would be considered a major change in placement for most students and would require a change in the IEP. The education agency must invite the student to any meetings considering transition services or participation in work-related training.

3. Does the term “physical and mental disabilities” mean that students with learning disabilities are excluded?

No. Learning disabilities can have their origin in physical or mental disabilities. However, participation in WBL programs should not be determined by disability group but rather by individual needs and preferences.

4. The policy guidelines indicate that nonpaid, nonemployment work-related training is for individuals for whom employment is “not immediately obtainable.” What does this mean?

The “not immediately obtainable” language was placed in the guidelines to ensure that students would not have extended placements in the career exploration, career assessment, or work-related training components of WBL programs if they were capable of obtaining employment at or above the minimum wage level. Work-based learning is an organized set of educational and skill-building activities intended to prepare students for paid employment while they are in school.

5. The guidelines also indicate that work-related training is intended for students who will need “intensive ongoing support” to perform in a work setting. Does this mean that it is intended for students with more severe disabilities?

While work-related training is intended for those students with more severe disabilities, it is appropriate for students with low to moderate disabilities when the intent is to move the student to paid employment as soon as the student is ready. Assessment of students’ needs must be based on skills and behaviors necessary to function in a work setting. Examples of ongoing support services include job redesign, job coaching to retain employment, environmental adaptations, personal assistance services, transportation, and social-skills training (Rehabilitation Act Amendments, S. Rep. 102-357, 1992).

6. What vocational options should be available to students who do not need intensive ongoing support?

Work-based learning programs are not intended to replace career and technical education, work study, or other vocational training and employment programs. WBL is intended as an option made available to students to expand the capacity of education agencies in assisting each student to achieve employment objectives. Collaboration with all programs/agencies can provide a student with the best opportunities.

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Documentation

7. What type of documentation is needed?

It is important that WBL programs document that all participants, including the student, the parent(s) or guardian(s), the employer, and instructional staff, understand that:

  • If at any point the WBL activity is no longer a learning experience and the seven criteria for a nonpaid/volunteer WBL experience cannot be met, the activity is not a nonemployment relationship;
  • Students are not entitled to wages or other compensation for the time spent in the learning experience; and
  • Students are not automatically entitled to employment at the worksite at the completion of the WBL experience.

Three types of documentation must be used to meet the requirements of these guidelines:

  1. An IEP reflecting instruction and training goals and objectives relevant to the work-related training experience;
  2. A written individual training agreement outlining the U.S. Departments of Labor and Education requirements listed above and signed by all participants along with attached individual training plan; and
  3. Records of student experience (i.e., log of hours spent in WBL activities, progress reports, observation reports, safety training, and performance evaluations).

8. Is there any additional documentation needed for the paid cooperative work experience component?

Yes, in addition to the documents listed in Question 7 above, the following records should be kept on file:

  • Hours and wage earnings;
  • Copy of the employer’s workers’ compensation insurance verification; and
  • A statement of assurance declaring compliance with FLSA and state laws governing working restrictions and hazardous occupations. The employer and work-based learning coordinator sign this document.

9. Do the policy guidelines supersede individual state departments of labor regulations?

No. WBL programs must comply with both U.S. Department of Labor regulations and state department of labor regulations. Where the two differ, the regulations with the most stringent requirements for protecting individuals in work settings must apply.

10. What safety regulations apply to students in the workplace?

The Occupational Safety and Health Act (OSHA) regulations that apply to a workplace also apply to a student participating in any WBL activity, whether nonpaid or paid. All students must be provided workplace safety training, protective equipment as required, and health and safety considerations.

11. Is special or extra liability coverage for students required for a nonpaid, nonemployment relationship?

Work-based learning is considered part of the student’s individualized education program. In nonpaid, nonemployment relationships, the worksite is perceived as an extension of the school. In other words, the student is pursuing instructional objectives in a work setting. Since these students are not employees, they are not eligible for the usual workers’ compensation or insurance coverage provided to employees.

If the student’s participation in workplace activity can be considered instructional and part of a nonemployment relationship, then the school may be responsible for liability coverage. Generally, the same insurance and liability policies that apply to other off-site school experiences (i.e., athletic events, field trips) should apply. Each school district must work out their own policies regarding liability.

12. What liability issues arise when a student is in a paid, cooperative work experience?

When the student is a paid employee of a business, then the employer is responsible for offering him or her the same liability coverage offered to other employees, including coverage under the employer’s workers’ compensation plan.

13. Do reports have to be made to the U.S. Department of Labor and/or the U.S. Department of Education?

No. Reports to the U.S. Department of Labor or the U.S. Department of Education are not necessary. However, adequate records documenting your program’s compliance with the guidelines for WBL activities, particularly nonpaid, work-related training and paid community work experience, must be maintained. In the event of a Department of Labor investigation of your program, this information must be made available to the Department of Labor.

14. Can we share information from the WBL program with vocational rehabilitation agencies?

Yes. Information from the WBL program can be shared with other agencies as long as confidentiality procedures are followed. In fact, rehabilitation services counselors may be actively involved in the process of WBL through consultation or funding.

15. How should issues regarding confidentiality be addressed?

Work-based learning programs should adhere to procedures typically followed regarding confidential information. These procedures are outlined in section 300.560-300.577 of the IDEA regulations and are incorporated into both state and local policies and procedures.

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Program Supervision

16. What is meant by the term “under the general supervision” of public school personnel?

This means that the public school or education agency has primary responsibility for the youth with disabilities WBL program. Under IDEA, failure to deliver free appropriate educational services constitutes a violation of the rights of youth with disabilities. This places responsibility for ensuring that WBL programs meet this mandate on the shoulders of public school personnel. While other agencies or groups may deliver these educational services, public school personnel must act as the central agency overseeing the program.

17. How should educators document meeting the general supervision criteria?

Educators can document the general supervision criteria by adequately developing the student’s IEP and the individual training plan. If a third party, such as a community-based rehabilitation program, is used to carry out the provisions of the IEP, it should be so noted. The education agency must ensure that these guidelines are fully understood and will be followed by the provider.

18. What are the implications of the “continued and direct supervision” requirement for educators and employers?

Participation in WBL programs is considered a valid part of a student instructional program. A student should be closely supervised by school staff or employees of the business. Direct supervision can include: (a) one-to-one instruction, (b) small group instruction, (c) supervision in close proximity, and (d) supervision in frequent, regular intervals. Supervision in frequent, regular intervals is permitted when the goal is to assess ability to work independently or to demonstrate mastery of an occupational or workplace skill.

19. Is it necessary for someone to monitor the student at all times?

Students in WBL programs are to be monitored at all times. However, the level of monitoring needed in a workplace setting is determined on an individual basis. The various components of WBL could require several monitoring strategies depending on the goals and objectives outlined in the IEP. For example, career exploration and career assessment may require closer monitoring than the work-related training component when the student is working toward more independence in job performance.

20. What educational qualifications and/or certifications must education staff have in order to provide supervision in WBL programs as the education agency’s representative?

State and local education agencies must determine the educational qualifications necessary for school staff providing supervision in WBL programs.

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Instructional Programming

21. Is a formal career assessment required to determine a student’s interests and preferences?

A formal career assessment may not be required to ascertain a student’s preferences and interests if other alternatives are appropriate. However, as part of the overall decision-making process, needs for support services or assistive technology should be identified. These needs may be determined through ongoing assessment procedures within the various components of a WBL program.

22. Is it necessary that the program follow sequential order (i.e., exploration, assessment, and training)?

No. WBL activities do not need to follow a prescribed order. Given the nature of a student’s needs, any of the three components may be excluded. The WBL program, however, must follow logical, generally agreed-upon instructional best practices. For example, assessment and exploration usually would not follow training in any single job classification.

23. Is it necessary that the WBL goals and objectives in the IEP specify exact site placements?

No. It is possible for the IEP to identify only general goals and objectives to be pursued (e.g., job clusters to explore, assessments of general work behavior skills, or training in a specific occupation). The IEP should, however, expressly limit the time students will spend at any one site or in any one job classification. Additional written agreements (i.e., individual training agreements, individual training plans) with parent(s) or guardian(s), students, and employers should reflect the exact location of WBL and document the specific nature of the education and training involved.

24. Does the IEP team have to reconvene to approve multiple career explorations, career assessments, work-related training, and cooperative work experience?

No. The transition IEP objectives and goals can be written broadly enough to incorporate these experiences.

25. What is meant by the phrases “clearly distinguishable occupation” and “clearly distinguishable job classification”?

The word occupation refers to a specific profession or career generally engaged in as a source of livelihood. Occupation and job classification are meant to be synonymous. Examples of occupations are shipping and receiving clerk, custodian, and painter. Often occupations are confused with specific work tasks that may be integral components of specific occupations. For example, work as a custodian involves sweeping, emptying trash, and mopping. Each of these work tasks must be considered as part of the clearly distinguishable occupation of custodian. If a student has received all allowable hours of nonpaid, work-related training in the job of school custodian, she/he should not be moved to a new site for another experience as a nonpaid, office-building custodian.

26. Given the policy guidelines, could an employer move students around to different work stations or occupational areas not specified in their written agreement?

No. As stated earlier, general goals and objectives for the student are outlined in the IEP, and written training agreements and training plans between the student, parent(s) or guardian(s), employer, and school personnel detail specific activities for the WBL experience. Thus, WBL can be considered a valid educational experience under the supervision of school personnel. Employers must feel free to remove students from any work activity if they determine that removal is necessary for safety or other reasons. However, under no circumstances should the student be placed in a work station or occupational area not specifically outlined in the written training agreement. In the event there is a need for a new worksite or occupation, a new training agreement and training plan must be written and signed prior to placing a student in the new worksite or occupation.

27. Can students work as volunteers or in service learning in a nonpaid, nonemployment relationship?

Yes, however it must be at a public agency site where the intent is to donate their services for the public good. These sites include charitable not-for-profit organizations, governmental agencies, hospitals, and nursing homes. Commercial businesses may not have unpaid volunteers. The student must choose to volunteer, all participants must agree this is voluntary, and all participants must agree the student is not entitled to wages.

28. How will students receive academic credits for WBL?

How students receive academic credit for occupational and work-related skills acquired in WBL programs is up to state and local education agencies. Many education agencies allow course credit for these community experiences since they help students achieve the transitional goals and objectives identified in their IEPs. Generally these experiences include concurrent classroom instruction by qualified personnel at the educational agency. Frequently, the policy for academic credit in WBL programs will be consistent with the one used for career and technical education programs available to the general population.

29. Do the policy guidelines refer to programs under special education and/or career and technical education?

It does not matter whether the WBL program is offered through special education or career/technical education. However, participants in WBL programs under the seven criteria for nonpaid, nonemployment relationships must be youth with disabilities as defined by the IDEA.

30. Do the guidelines apply to work during the summer?

Yes. These guidelines may apply to summer WBL programs if they are under the general supervision of school personnel. Many students have IEPs that call for an extended-year educational program. Other students may simply elect to enroll in summer school.

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The Educational Relationship vs. the Employment Relationship

31. What is the difference between an educational relationship and an employment relationship?

In an employment relationship such as cooperative work experience or youth apprenticeship, the student is providing services that benefit the employer. The student may be completing tasks normally completed by regular employees. As a result of the student’s work, vacant paid positions in the business may remain unfilled, and regular employees may be displaced or relieved of their normally assigned duties. In an educational relationship such as work-related training, the student engages in work tasks as part of an organized educational activity designed to benefit the student. The guidelines on implementing WBL programs consistent with the FLSA outline the distinction between an employment relationship and a valid educational experience. If a student’s involvement in WBL activities constitutes an employment relationship rather than part of an organized educational activity, then the participating business or school may be responsible for full compliance with the FLSA regulations. This would include compliance with the FLSA’s minimum wage and overtime pay provisions.

32. What is the distinction between benefit to student versus benefit to employer?

A number of distinctions have been made between benefit to the employer and benefit to the student with regard to WBL programs. Benefit to the employer occurs when the employer recognizes an immediate advantage by having the WBL student working on the premises. An immediate advantage is increased profitability or production for the business. Benefit to the student occurs when the WBL program is a valid educational experience for the student. For WBL to represent an educationally valid experience the following instructional practices should be implemented:

  • Students receive adequate orientation and instruction before performing new tasks.
  • Students’ goals and objectives for the WBL program are clearly defined.
  • Activities in the workplace setting relate directly to students’ goals and objectives.
  • Students’ activities in the WBL program are closely monitored.
  • Records of students’ progress are maintained.
  • The necessary support and time for students to develop proficiency at new tasks is provided.

(In both situations, the student will benefit, however, the most important decisive factor is whether or not the employer or business receives any benefit.)

33. What is the educator’s role in assuring that regular employees will not be displaced by the student trainee in the workplace?

The WBL experience must be primarily for the student’s benefit. Also, regular employees must not be displaced or relieved of assigned duties, and vacant positions should not go unfilled. Two strategies are available to educators to ensure this criterion is met. First, the educator can confirm that all parties—the employer, the students, and the parent(s) or guardian(s)—understand that students in the WBL program must not displace regular employees. A written training agreement documenting this understanding should be signed by all involved. Secondly, those who supervise the student at the worksite may observe when employee displacement and other violations occur and take steps to correct the situation.

34. If the activity is ordinarily not performed by employees and yet is beneficial to the business, can the student perform the activity?

The student should neither perform the activity nor be paid appropriate wages. Although regular employees have not been displaced or relieved of assigned duties, the student is still providing services which benefit the business. Therefore, an employment relationship exists between the student and the employer. This would not be the case if the activity were of no benefit to the employer and consisted of “busywork” designed to develop or improve a student’s skills. For example, reorganizing materials awaiting shipment into sets of five would not constitute an employment relationship if the business did not ship the materials in this manner.

35. Can students accept an offer of paid employment at a worksite where they were placed for work-related training?

Yes. Students can accept an offer of paid employment at a worksite where they received instruction and training. The student would then become an employee of the business, and an employment relationship would ensue. This means that the employer is responsible for full compliance with the FLSA, including minimum wage and overtime pay provisions.

36. Could the student be paid less than the minimum wage?

Yes. Paid employment below the minimum wage rate is permitted when a worker’s disability impairs their ability to perform the job. This special minimum wage rate is based on the productivity of the worker with disabilities as compared to the productivity of a worker without disabilities. Employers must obtain a certificate from the Wage and Hour Division of the U.S. Department of Labor authorizing the payment of a special minimum wage to youth with disabilities participating in cooperative work experience or state-approved career and technical education programs. Application must be made to the U.S. Department of Labor for authority to employ workers with disabilities at these special minimum wage rates.

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Table of Contents

Introduction

Section I
The Goal of Productive Employment for All Youth
The Work-Based Learning (WBL) Approach to Productive Employment for Youth with Disabilities
Career Exploration
Career Assessment
Work-Related Training
Cooperative Work Experience

Requirements of the FLSA Related to WBL
The FLSA and WBL Career Exploration, Career Assessment, and Work-Related Training Components
The FLSA and WBL Cooperative Work Experience Component

Section II: Questions and Answers
Requirements for Participation
Documentation
Program Supervision
Instructional Programming
The Educational Relationship vs. the Employment Relationship

Section III: Case Studies: Examples of Work-Based Learning (WBL) Activities
Example 1: Career Exploration in Initial Transition Planning in a Rural Community
Example 2: Career Assessment Experience in a Cleaning Services Setting
Example 3: A Work-Related Training Experience in a Hotel Laundry Setting
Example 4: Cooperative Work Experience in a Restaurant Setting
Example 5: Career Exploration in Two Suburban Business Settings
Example 6: Career Assessment in a Large Business Setting
Example 7: Work-Related Training in Three Workplace Settings
Example 8: Cooperative Work Experience at Special Minimum Wages

Appendix A: U.S. Department of Labor Employment Standards Administration Wage and Hour Division Regional Contacts

Appendix B: Organizations Providing Assistance in the Planning of Transition Services for Youth With Disabilities
Office of Special Education Programs Regional and Federal Resource Centers
State Transition Contacts

Appendix C: SSI Work Incentives Available to Transition-Age Youth with Disabilities
Earned Income Exclusion (EIE)
Student Earned Income Exclusion (SEIE)
Impairment-Related Work Expense (IRWE)
Plan for Achieving Self-Support (PESS)
Blind Work Expenses (BWE)
Property Essential to Self-Support (PESS)



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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.