Education-industry collaboration: guidelines for complying with the Fair Labor Standards Act.

The concept of forming partnerships between business / industry and public school programs has emerged as a significant strategy for ensuring that students with disabilities have access to employment training opportunities (Bolin, 1982; Gaylord-Ross, 1989; Moon, Inge, Wehman, Brooke, & Barcus, 1990). There is an abundance of literature describing how to create vocational programs in businesses and industries in our communities (Stainbeck, Stainbeck, Nietupski, & Hamre-Nietupski, 1986; Pumpian, Shepard, & West, 1989; Moon et al., 1990; Gaylord-Ross, Halloran, & Siegel, 1992). Although schools that implement community-based vocational education programs must adhere to the rules and guidelines of the Fair Labor Standards Act (FLSA) administered through the United States Department of Labor (DOL), there have been few resources available for correctly interpreting these complicated regulations (Moon, Kiernan, & Halloran, 1990).

This article describes guidelines which were issued prior to the beginning of the 1992-93 school year by the U.S. Department of Education (ED) and DOL (U.S. Department of Education, 1992) which detail the criteria to be met by education agencies to ensure that programs operate in compliance with FLSA. The guidelines should be of significant value to groups in business and industry that participate in the community-based vocational education programs.

Background

The intent of FLSA is to ensure that people are not exploited in the nation's workplaces. The intent of community-based vocational education for students with disabilities is to provide structured educational activities that will lead to employment in their communities. Community-based vocational education has been demonstrated to be an extremely effective strategy for improving employment outcomes. However, a number of programs have been forced to reduce their services after being cited for failure to pay commensurate wages to students in a variety of community-situations.

Community-based vocational education-the systematic teaching of "life skills" in the actual environments in which the students will need to apply them--has become recognized as a primary methodology for preparing and assisting people with severe disabilities to make the transition from school to community life. These environments include the world of work, where curricular content is based on ecological inventories to determine the skills needed for employment. From the need to develop systematic instructional strategies to prepare people with severe disabilities for employment and independent living, a vocational education model evolved that utilized community worksites for situational assessment and training.

Components of the vocational education model include; vocational exploration, vocational assessment, vocational training, and cooperative vocational education. Over the past 10 years, the components have been acknowledged as necessary prerequisites to effective instruction in the community. Over the same period, research and demonstration indicates that it may not be necessary for a student with severe disabilities to use components of the model. In fact, a combination of these components and the time periods in which they are applied are often variable.

As stated above, alternative educational programs for students with more severe disabilities (community-based vocational education), include the following components:

Vocational Exploration. The vocational exploration component allows students to obtain brief exposure to a variety of work alternatives. This component provides the student with an introduction to occupations by watching work being performed, talking with workers on the job, and actually trying the job under the direct supervision of school personnel. Exploration enables students to make choices regarding occupational areas they may wish to pursue.

Vocational Assessment. The vocational assessment component focuses upon determining individual training objectives in the context of a work environment in which the client might be employed. Specific recommendations result in the development of the Individualized Education Program (IEP). The "situational assessment" is always under the close supervision of school personnel or an assessment site employee.

Vocational Training. Vocational training requires placing the student on the job to obtain work experience, which cannot be simulated in a school setting. A detailed, written training plan usually includes the competencies to be acquired, method(s) of instruction to be used, and procedures for the evaluation of the training. Training is closely supervised by a representative of the school or by a designated co-worker/supervisor. The purpose of this component is to enable students to develop work behavior and competencies needed to secure paid employment.

Cooperative Vocational Education Agreement. This component is an arrangement between the school and the employer whereby each contributes to the student's education and employability in designated ways. The student must be paid for any work from which the employer derives an immediate advantage. If the student in the cooperative vocational education component is unable to perform at the productivity level expected of nondisabled workers, a commensurate wage is established.

If a subminimal wage is to be paid, the school will work with the employer to obtain the appropriate certificate from DOL's Wage and Hour Division that has jurisdiction over the area in which the disabled student is to be employed. These certificates are often obtained through vocational rehabilitation counselors who typically participate in the initial IEP development. The certificate is obtained before the student is employed.

The written cooperative agreement must describe the role of the school and the employer and must include a clear stipulation of student wages and benefits. Both the agreement and the student must remain under the general supervision of school personnel. This component may also include follow-along services to ensure student adjustment to the job with periodic followup after the student completes school.

Statement of Principle

The following guidelines have been developed by the U.S. Department of Education and the U.S. Department of Labor to provide guidance to education agencies implementing community-based vocational education programs.

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

Guidelines

Where all of the following criteria are met, DOL will not assert an employment relationship .for purposes of FLSA.

* 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 worksite 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 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 DOL and ED. 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.

* The activities of the students at the community-based placement site do not resuit in an immediate advantage to the business. The Department of Labor will look at several factors:

1) There has been no displacement of employees, vacant positions have not been filled, employees have not been relieved of assigned duties, and the students are not performing services that, although not ordinarily performed by employees, clearly are of benefit to the business.

2) The students are under continued and direct supervision by either representatives of the school or by employees of the business.

3) Such placements are made according to the requirements of the student's IEP and not to meet the labor needs of the business.

4) The periods of time spent by the students at any one site or in any clearly distinguishable job classification are specifically limited by the IEP.

* While the existence of an employment relationship will not be determined exclusively on the basis of the number of hours, as a general rule, each component will not exceed the following limitation during any one school year: vocational exploration, 5 hours per job experienced; vocational assessment, 90 hours per job experienced; and 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.

It is important to understand that an employment relationship will exist unless all of the criteria described in this policy guidance are met. If an employment relationship is determined to exist, participating businesses can be held responsible for full compliance with FLSA, including the child labor provisions.

Businesses and school systems may at any time consider participants to be employees and may structure the program so that the participants are compensated in accordance with the requirements of FLSA. Whenever an employment relationship is established, the business may make use of the special minimum wage provisions provided pursuant to [section]14(c) of the Act.

Summary

The U.S. Departments of Education and Labor believe that the articulation of the guidelines will enhance the relationships being developed between education agencies and private industry. The two departments share an interest in promoting educational experiences that can enhance success in school-towork transition.

The importance of promoting these experiences is underscored by the findings of the National Longitudinal Transition Study of Special Education Students, which points to programs and services that hold promise for improving outcomes for youth with disabilities (Wagner & Shaver 1989). The study found that enrollment in occupationally oriented vocational education was significantly related to a lower likelihood of dropping out of school.

Additionally, youth who took vocational education during school or had work experience as part of their vocational training were substantially more likely to be employed after high school. This study confirms our belief that these experiences can increase the potential for these students to become effective, productive, and competitive wage earners and contributors to their communities.

The guidance presented in this article ensures that these students will be afforded the protection of the Nation's employment laws as they take part in community-based educational experiences.

Bibliography

1. Brolin, D.E. (1982). Vocational preparation of persons with handicaps. Columbus, OH; Charles E. Merrill.

2. Gaylord-Ross. R. (Ed.). (1989). Vocational education for persons with handicaps. Mountain View, CA; Mayfield Publishing.

3. Gaylord-Ross, R., Halloran, W., & Siegel, S. (1992). In Siegel (Ed.), Career ladders for challenged youths in transition from school to adult life. Austin, TX: Pro. Ed Publishers.

4. Moon, M.S., Inge, K., Wehman, E, Brooke, V., & Barcus, J.M. (1990). Helping persons with severe mental retardation get and keep employment: Supported employment issues and strategies. Baltimore: Paul H. Brookes.

5. Moon, M.S., Kiernan, W., & Halloran, W. (1990). School-based vocational programs and labor laws: A 1990 update. The Journal of the Association for Persons with Severe Handicaps. 15, (3) 177-185.

6. Pumpian, I., Shepard, H., & West, E. (1989). Negotiating job-training stations with employers. In P. Wehman & S. Moon (Eds.), Vocational rehabilitation and supported employment (pp. 177-192). Baltimore: Paul H. Brookes.

7. Stainback W., Stainback, S., Nietupski, J., & Hamre-Nietupski, S. (1986). Establishing effective community-based training stations. In E Rusch (Ed.), Competitive employment issues and strategies (pp. 103-114). Baltimore: Paul H. Brookes.

8. United States Department of Education. (1992). Guidelines for implementing community-based educational programs for students with disabilities. Washington, DC: United States Department of Education.

9. United States Department of Labor. (1989). Fair labor standards amendment of 1989. Washington, DC: United States Department of Labor. Author.

10. Wagner, M. & Shaver, D. (1989). Educational programs and achievements of secondary special education students: Findings for the national longitudinal transition study. Menlo Park, CA: Stanford Research Institute.

Dr. Halloran is a Research Analyst in the Secondary and Transition Program of the Office of Special Education and Rehabilitative Services (OSERS) and Mr. Johnson is Special Assistant to the Assistant Secretary, OSERS, U.S. Department of Education, Washington, DC.