Employment of Student-Learners, Employment of Apprentices, Employment of Learners, Employment of Messengers, and Employment of Student Workers

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