Paid Work or a Volunteer:
Guidelines for Determining Trainee Status

By Dale DiLeo

When should job trainees with disabilities be paid and when can they volunteer their work to gain job experience?

The Fair Labor Standards Act, administered by the US Department of Labor, has criteria established in Supreme Court cases to distinguish non-paid instructional work experiences from paid employment. Transition specialists and SE professionals involved in developing jobs for students with disabilities must understand this distinction to prevent providing employment-related instruction without pay when payment may be required.

Recent court cases have interpreted these earlier Supreme Court cases and regulations, leading the US Departments of Education and Labor to revise their guidelines relating to community-based employment instruction. This summary, drawn from recently published research, describes when non-paid training programs can operate based on US Department of Education and US Department of Labor guidelines. Although the material refers to students, it applies as well to adults with disabilities in SE.

Guidelines for Implementing Non-Paid Community-Based Educational Programs for Students with Disabilities
• Participants will be youth with physical and/or mental disabilities for whom competitive employment at or above the minimum wage level is not immediately obtainable and who, because of their disability, will need intensive ongoing support to perform in a work setting.
• Participation will be for vocational exploration, assessment or training in a community-based placement work site under the general supervision of public school personnel.
• Community-based placements will be clearly defined components of individual education programs developed and designed for the benefit of each student. The statement of needed transition services established for the exploration, assessment, training or cooperative vocational education components will be included in the student's Individualized Education Program (IEP).
• Information contained in a student's IEP will not have to be made available. However, documentation as to the student's enrollment in the community-based placement program will be made available to the US Departments of Labor and Education. The student and the parent  or guardian of each student must be fully informed of the IEP and the community-based placement component and have indicated voluntary participation with the understanding that participation in such a component does not entitle the student-participant to wages.
• While the existence of an employment relationship will not be determined exclusively on the basis of the number of hours, as a general rule, each component will not exceed the following limitation during any one school year:

1. Vocational exploration: 5 hours per job experienced
2. Vocational assessment: 90 hours per job experienced
3. Vocational training: 120 hours per job experienced

• Students are not entitled to employment at the business at the conclusion of their IEP. However, once a student has become an employee, the student cannot be considered a trainee at that particular community-based placement unless in a clearly distinguishable occupation.
• The activities of the students at the community-based placement site do not result in an immediate advantage to the business. The US Department of Labor will look at several factors.

1. 1. The training, even though it includes actual operation of the facilities of the employer, is similar to that which would be given in a vocational education school
2. The training is for the benefit of the trainees or students.
3. The trainees or students do not displace regular employees, but work under their close observation: vacant positions have not been filled, employees have not been relieved of assigned duties and the students are not performing services that, although not ordinarily performed by employees, clearly are of benefit to the business.
4. The employer that provides training derives no immediate advantage from the activities of the trainees or students, and on occasion his operations may actually be impeded. Such placements are made according to the requirements of the student's IEP and not to meet the labor needs of the business.
5. The trainees or students are not necessarily entitled to a job at the conclusion of the training period.
6. The trainees or students understand that they are not entitled to wages for the time spent in training.

Note that all six of these criteria must be met in order to establish a training situation. These criteria are inter-related. Establishing an employee-employer relationship requires examination of the circumstances surrounding the whole activity rather than isolated factors

In addition, the students are under the continued and direct supervision by either representatives of the school or by employees of the business, and the periods of time spent by the students at any one site or in any clearly distinguishable job classification are specifically limited by the IEP.

Dale DiLeo is a consultant and publisher. You can find resources in employment and other areas at http://www.trninc.com. You can visit Dale's web page at http://www.trninc.com/training/trngconsult.html or email him at info@trninc.com.