64956 Federal Register / Vol. 62, No. 236 / Tuesday, December 9, 1997 / Rules and Regulations

DEPARTMENT OF LABOR

Wage and Hour Division

29 CFR Parts 520, 521, 522, 523 and

527

RIN 1215–AB10

Employment of Student-Learners,

Employment of Apprentices,

Employment of Learners, Employment

of Messengers, and Employment of

Student Workers

AGENCY: Wage and Hour Division,

Employment Standards Administration,

Labor.

ACTION: Final rule.

SUMMARY: The Department of Labor is

removing the regulation found at 29

CFR Part 527 and consolidating 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 provided 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 were duplicative and have

been 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 remain generally

unchanged.

EFFECTIVE DATE: These rules are effective

on February 9, 1998.

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 this final

rule in alternative formats may be

obtained by calling (202) 219–7640,

(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 final rule contains reporting or

recordkeeping requirements subject to

the Paperwork Reduction Act of 1995

(Pub. L. 104–13). The reporting

requirements contained in §§ 520.403,

520.501 and 520.502 of this rule were

submitted to and approved by the Office

of Management and Budget (OMB)

under the Paperwork Reduction Act of

1995 and assigned OMB Control No.

1215–0192.

No comments were received from the

public regarding this burden or these

regulatory provisions.

No substantive changes have been

made in this final rule which affect the

information collection and

recordkeeping requirements and

estimated burdens previously submitted

to OMB and discussed in the proposed

rule.

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 studentworkers), 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 which are

the subject of this final rule, formerly

found at 29 CFR Parts 520, 521, 522,

523, and 527, were promulgated

pursuant to the 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 former Part 522, now

consolidated into Part 520, learners

could be employed at less than the

applicable minimum wage in certain

skilled occupations. Certificates

specified 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 were 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 could not create unfair

competitive labor cost advantages nor

depress wages or working standards for

experienced workers in comparable

work. Employers submitted separate

applications for each establishment and

demonstrated that efforts to hire

experienced workers were ineffective.

Under former Part 520, studentlearners were pupils at least sixteen

years old (eighteen if employed in

certain hazardous occupations) who

were enrolled in an accredited school,

college or university and who were

employed part-time under a bona fide

vocational training program approved

by a State board of vocational education.

Certified student-learners were required

to be paid no less than 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

could 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 had to

be submitted for each student-learner,

describing the vocational training

program in detail and demonstrating

how it related to the jobs to be

performed by the student-learner.

Under former Part 527, studentworkers were pupils enrolled in an

educational institution who were at

least 16 years old (18 if employed in

certain hazardous occupations) and who

were 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

were required to be paid no less than 75

percent of the applicable minimum

wage. Certificates specified the number

of students authorized on any day, the

rates permitted during the training

period, and length of the training period

for each occupation (which were not to

exceed one school year). Certificates

were submitted by each educational

institution seeking to employ studentworkers. As discussed in Section IV of
Federal Register / Vol. 62, No. 236 / Tuesday, December 9, 1997 / Rules and Regulations 64957

this preamble, Part 527 has been deleted

pursuant to this final rule.

Under former Part 521, now

consolidated into Part 520, apprentices

at least sixteen years old (eighteen if

employed in certain hazardous

occupations) could be employed at less

than the applicable minimum wage in

skilled trades under registered

apprenticeship programs. Apprentices

were required to receive a progressively

increasing schedule of wages which

averaged 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 former Part 523, now

consolidated into Part 520, messengers

employed primarily to deliver letters

and messages could be paid

subminimum wages to prevent

curtailment of employment

opportunities. Applications could 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 studentworkers, 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. No applications to

employ learners have been received

since 1995. The use of student-learner

certificates rose to over 17,000 in 1975,

but has fallen in recent years. Currently

fewer 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 studentworker 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

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 studentworker 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 studentworkers 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. Comments to the Proposed Rule

A Proposed Rule with a 60-day

comment period was published in the

Federal Register on February 14, 1997

(62 FR 7094). No public comments were

received in response to the Proposed

Rule. The Department is adopting that

proposal with only one minor editorial

modification in this final rule. That

modification, the removal of the word

‘‘agreement’’ before the word ‘‘contains’’

in the definition of apprenticeship

agreement, is being done to correct an

inadvertent error and remove any

confusion.

IV. Discussion

This final rule removes the regulation

at 29 CFR Part 527, Employment of

Student-Workers, and reserves 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. Part 527 is therefore

unnecessary.

Additionally, this final rule merges

the regulations formerly at 29 CFR Parts

520, 521, 522, and 523 into one new

Part 520 and reserves the remaining

three sections. This final rule also

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 former regulations are

maintained in this revision. The

language and context of the 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 final

rule, where possible, supplants the

language containing specific

requirements with more general criteria

common to all of the programs. The

Department does not expect to increase

the number of certificates issued under

this final rule because the economic

conditions stated above are unchanged.

The specific criteria formerly

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 are now

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.
64958 Federal Register / Vol. 62, No. 236 / Tuesday, December 9, 1997 / Rules and Regulations

The final 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. The final rule

also removes the different learner

program standards for new plants and

established plants.

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 final rule 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 final 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 final 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). The Department has

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 final 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, the Department 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 final rule 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

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 final 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

John R. Fraser, Acting Administrator, Wage

and Hour Division, Employment Standards

Administration, U.S. Department of Labor.

List of Subjects

29 CFR Part 520

Clothing, Electronic products,

Manpower training programs,

Messengers, Minimum wages, Students,

Vocational education.

29 CFR Part 521

Manpower training programs,

Minimum wages, Vocational education,

Wage and Hour Division.

29 CFR Part 522

Cigar and cigarettes, Clothing,

Electronic products, Manpower training

programs, Minimum wages, Wage and

Hour Division.

29 CFR Part 523

Minimum wage, Messengers, Wage

and Hour Division.

29 CFR Part 527

Minimum wages, Students, Wage and

Hour Division.

Signed at Washington, D.C. on the 2nd day

of December, 1997.

John R. Fraser,

Acting Administrator, 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 amended as set forth below.

PART 521—[REMOVED AND

RESERVED]

1.–2. Under the authority of Sec. 14,

52 Stat. 1068, as amended, 29 U.S.C.

214, Title 29, Code of Federal

Regulations is 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 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,
Federal Register / Vol. 62, No. 236 / Tuesday, December 9, 1997 / Rules and Regulations 64959

Title 29, Code of Federal Regulations is

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

amended by removing part 527.

6. Under the authority of Sec. 14, 52

Stat. 1068, as amended, 29 U.S.C. 214,

Title 29, Code of Federal Regulations is

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 StudentLearners), 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

520.300 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?

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

section 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 studentlearner 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

section 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.

Subpart A—[Reserved]

Subpart B—What are the General

Provisions Governing the Employment

of Messengers, Learners (Including

Student-Learners), and Apprentices at

Subminimum Wages?

§ 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.

§ 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
64960 Federal Register / Vol. 62, No. 236 / Tuesday, December 9, 1997 / Rules and Regulations

apprenticeship program. Training is

provided through structured on-the-job

training combined with supplemental

related theoretical and technical

instruction. This term excludes preapprentices, 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 Regulations, 29 CFR Part

29.

(e) Additional terms used in this part

are defined in subpart C of this part.

§ 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 of this part and

student-learners in subpart E of this

part.

§ 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 recordkeeping

requirements (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

§§ 520.412 and 520.508 of this part).

(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.

§ 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 §§ 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.

§ 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

§ 520.300 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 preapprentices, 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 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 ‘‘nonjoint’’ 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 parttime 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
Federal Register / Vol. 62, No. 236 / Tuesday, December 9, 1997 / Rules and Regulations 64961

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 or greater

than 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) of FLSA.

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

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 onthe-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 semiprofessional 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

§ 520.400 Who are messengers, learners,

and apprentices?

The terms messenger, learner, and

apprentice are defined in subpart C of

this part.
64962 Federal Register / Vol. 62, No. 236 / Tuesday, December 9, 1997 / Rules and Regulations

§ 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

(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).

§ 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.

§ 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

learners(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;

(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.

(The information collection requirements

contained in paragraphs (a), (b) and (c) were

approved by the Office of Management and

Budget under control number 1215–0192.)

§ 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
Federal Register / Vol. 62, No. 236 / Tuesday, December 9, 1997 / Rules and Regulations 64963

reasonable grounds to conclude that the

terms of a certificate may not be

complied with, if issued.

§ 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.

(The information collection requirements

contained in paragraphs (a), (b) and (c) were

approved by the Office of Management and

Budget under control number 1215–0192.)

§ 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 §§ 520.403 and

520.404 of this part.

(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 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 other

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.

§ 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, lockout, or other similar condition, exist.

§ 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

extraordinary situations as discussed in

§ 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.

§ 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.

§ 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
64964 Federal Register / Vol. 62, No. 236 / Tuesday, December 9, 1997 / Rules and Regulations

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.

§ 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 § 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 section

520.404 of this part still prevail.

§ 520.412 What records, in addition to

those required by Part 516 of this chapter

and section 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:

(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

§ 520.500 Who is a student-learner?

The term student-learner is defined in

subpart C.

§ 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.

(The information collection requirements

contained in paragraph (b) were approved by

the Office of Management and Budget under

control number 1215–0192.)

§ 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 studentlearner;

(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 § 520.501

of this subpart;
Federal Register / Vol. 62, No. 236 / Tuesday, December 9, 1997 / Rules and Regulations 64965

(2) The employment training must

conform with the provisions of

§ 520.503 (a), (c), (d), and (g) and

paragraphs (a) and (c) of § 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.

(The information collection requirements

contained in paragraphs (a), (b), (c), (d), (e),

(f), (g), (h) and (i) were approved by the

Office of Management and Budget under

control number 1215–0192.)

§ 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 studentlearner 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 studentlearner will not have the effect of

displacing a worker employed in the

establishment;

(g) The employment of the studentlearners 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 studentlearner 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.

§ 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 § 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.

§ 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

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

§ 520.502(i)(3).

(d) Section 520.204 of this part

describes the procedures for requesting

reconsideration of a decision to grant or

deny a certificate.

§ 520.506 What is the subminimum wage

for student-learners and what must I do to

comply with the terms of my studentlearner 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 (§ 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.

§ 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
64966 Federal Register / Vol. 62, No. 236 / Tuesday, December 9, 1997 / Rules and Regulations

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.

§ 520.508 What records, in addition to

those required by Part 516 of this chapter

and section 520.203 of this part, must I keep

when student-learners are employed?

Any worker employed as a studentlearner shall be identified as such on the

payroll records, with each studentlearner’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. 97–32009 Filed 12–8–97; 8:45 am]

BILLING CODE 4510–27–P