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This section provides answers to commonly asked questions about
work permits.
Questions
- Is a school always required to issue a "Permit
to Employ and Work" (B1-4) to an eligible minor?
- Does a high school graduate, or a minor who has
passed the California High School Proficiency Exam, need a work
permit?
- May a minor have more than one work permit?
- May a minor who is not a California resident
or not enrolled in the school district be issued a work permit?
- May a truant or "dropout" be issued
a work permit?
- May an expelled minor be issued a work permit?
- Is a parent/employer required to obtain a work
permit for his/her child who works for the family business?
- Does a parent/employer have to provide workers’
compensation insurance for his/her children/ employees?
- Does an emancipated minor need a work permit
to be employed?
- In the interest of expediency, may a school
issue a blank permit to a minor and, when he/she secures employment,
have the employer complete the necessary forms?
- Must a public school or other governmental agency
require a work permit for an employee/minor?
- How can it be determined whether a minor is
an independent contractor or an employee?
- Who may issue work permits?
- May a private school issue work permits to its
students?
- May a work permit be issued by the public school
to a pupil who attends a private school located within the school
district boundaries, even though the pupil is not a resident
of the school district?
- May the local school issue a work permit for
a child who is under school age?
- What process should be followed to issue a "Permit
to Employ and Work" (form B1-4)?
- Must the work permit issuing authority use only
school records to verify the date of birth on the work permit
application form (form B1-1 or B1S-1)?
- Does a student have to present his/her social
security card to school authorities when applying for a work
permit?
- May a work permit be issued for a minor who
is being "home schooled"? Isn't a "home school"
the same as a private school? When a noncredentialed parent
is teaching his/her own child using a correspondence course
or other type of course, may the child be issued a work permit?
- Does the school have any discretion to limit
the minor's work activity?
- When school is in session, a sixteen or seventeen
year-old is permitted to work up to 48 hours a week; 4 hours
on school days; and 8 hours on non-school days and days preceding
a non-school day. May a sixteen or seventeen year-old actually
work 48 hours in a week while school is in session?
- May a fourteen or fifteen year-old work during
the school day?
- What is a "schoolday" and what does
"school in session" mean?
- How long do copies of work permits have to be
retained?
- Does a minor working in a restaurant attached
to a casino on an Indian reservation need a work permit?
- May an entry-level employee be paid less than
the minimum wage?
- When is a student considered a trainee or a
volunteer, not an employee?
Answers
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Is a school always required to issue a "Permit
to Employ and Work" (B1-4) to an eligible minor?
No. It is solely within the discretion of the school district
to determine whether a minor, who is still subject to the state’s
compulsory education laws, may obtain a work permit and, therefore,
be employed to work.
Each of the laws governing the issuance of work permits uses
the word “may,” which is permissive, and, therefore,
does not require the permit to be granted (Education Code
Section 75). If the statutes had used the word “shall,”
which means issuance is mandatory, then the school would not
have discretion and would have to issue a permit to every eligible
minor (Education Code sections 49110, 49111, 49112,
49113, 49114, and 49130).
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Does a high school graduate, or a minor
who has passed the California High School Proficiency Exam,
need a work permit?
No. Once a minor is no longer subject to the state’s compulsory
education laws, he/she is not considered a minor for purposes
of the state’s child labor laws and is not required to
obtain a work permit (Labor Code Section 1286[c]).
California’s compulsory school attendance law requires
a person to attend school until he/she is eighteen years of
age or has graduated from high school or has passed the High
School Proficiency Examination.
Federal law does not have a similar exception, and occupational
restrictions may still apply. Under federal law an employer
would still need a certificate of age for the student when employing
a high school graduate under eighteen years of age. The school
may issue a work permit as a certificate of age, but other forms
of identification are also accepted as proof of age (Education
Code Section 49114).
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May a minor have more than one work permit?
Yes. A minor may work concurrently for more than one employer
and, therefore, have more than one valid work permit. But, regardless
of the number of employers and work permits, the total number
of hours worked may not exceed the total number of hours allowed
by law.
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May a minor who is not a California resident
or not enrolled in the school district be issued a work permit?
Yes. The local school district may issue a work permit if the
minor enters the attendance area from another state within 10
days or less before the end of the school term. The minor may
be issued a permit to work full-time because he/she is exempted
from school attendance for the remainder of the school term
(Education Code Section 48321).
The only requirement for work permit issuance is that the minor
resides in the district that issues the permit. The minor does
not have to be a California resident or be enrolled in the school,
or reside with parents (Education Code Section 49110).
Any minor wishing to work in California must adhere to the state’s
work standards and regulations, even if not a permanent or full-time
resident of California (Labor Code sections 1286 and
1299).
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May a truant or "dropout" be issued
a work permit?
No. A truant or "dropout" is in violation of California’s
compulsory school attendance laws and a school district is not
permitted to sanction violation of those laws by issuing a permit
to work. A truant or "dropout" is subject to arrest,
and the parents are subject to infraction fines if the minor
is found working without a work permit (Education Code sections
48264, 48293, and 49112).
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May an expelled minor be issued a work permit?
Yes. The law does not prohibit issuing a work permit to an expelled
minor. An expelled minor must be provided educational services.
Options include, but are not limited to, community day school,
juvenile court school, another school district, etc. When the
expelled minor enrolls in and attends school, only the district
in which the minor resides may issue -or refuse to issue -the
work permit (Education Code sections 48915, 48915.01,
48915.1, 48915.2, and 48926).
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Is a parent/employer required to obtain
a work permit for his/her child who works for the family business?
Yes. Work permits are required for all minors employed in manufacturing,
mercantile, or similar commercial enterprises (Education
Code Section 49141). Exemptions are allowed for agricultural
or domestic work performed on land that is owned, operated,
or controlled by the parents (Labor Code Section 1394).
All regulations concerning hazardous occupations and other work
forbidden to minors remain in effect for minor children working
for their parents.
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Does a parent/employer
have to provide workers' compensation insurance for his/her
children/ employees?
Yes. Workers' compensation insurance must be provided for an
employee regardless of whether the employee/minor is the employer’s
child. Exceptions may be made for an employer who has been given
permission by the Department of Industrial Relations to be self-insured
(Labor Code sections 3700 and 3701).
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Does an emancipated minor need a work permit
to be employed?
Yes. The only exception from child labor and compulsory school
attendance laws enjoyed by an emancipated minor is that he/she
may apply for a work permit without the parent’s permission.
An emancipated minor may sign, in place of the parent, the "Statement
of Intent to Employ Minor and Request for Work Permit"
(form B1-1 or B1S-1 prescribed by the California Department
of Education pursuant to Education Code Section 49162
and as stated in Family Code Section 7050[e][16]).
"Emancipated minor" is defined in Family Code
Section 7002.
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In the interest of expediency, may a school
issue a blank permit to a minor and, when he/she secures employment,
have the employer complete the necessary forms?
No. A school must never issue a blank work permit. The fully
completed "Statement of Intent to Employ Minor and Request
for Work Permit" (form B1-1 or B1S-1) must be returned
to the school district (Education Code sections 49162
and 49163). Only the school district has discretion to issue
a work permit, and the district’s lawfully authorized
agent (Education Code Section 49110) must complete
all conditions as to its issuance.
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Must a public school or other governmental
agency require a work permit for an employee/minor?
No. It is the position of the California Division of Labor Standards
Enforcement that the state's Labor Code does not apply
to a state or local agency unless the agency is expressly included
in the statute. The child labor statutes do not expressly include
state or local agencies.
State and local agencies are subject to the federal Fair Labor
Standards Act and must follow all of its child labor provisions,
including having a certificate of age to verify permissible
employment (California Code of Federal Regulations,
Title 29, Section 212). Contact the Wage and Hour Division
of the U.S. Department of Labor for further information. (See
Appendix A of the Work Permit Handbook for the telephone number.)
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How can it be determined whether a minor
is an independent contractor or an employee?
For purposes of workers' compensation, Labor Code Section
3351 defines "employee" generally as "every person
in the service of an employer under any appointment or contract
of hire or apprenticeship, express or implied, oral or written."
Labor Code Section 3353 defines "independent contractor"
generally as "any person who renders service for a specified
recompense for a specified result, under the control of his
principal as to the result of his work only and not the means
by which such result is accomplished."
The Labor Commissioner considers many factors in determining
independent contract status. Those factors include, but are
not limited to:
- Control of work conditions and schedules
- Supervision
- Training
- Pay
- Integration
- Hours of work
- Where work is done
- Order of tasks
- Investment in facilities or equipment
- Work supplies
- Working for more than one firm
- Business distinct from employer
For a determination of whether a worker is an
independent contractor or an employee, contact the local office
of the Department of Industrial Relations, Labor Standards Enforcement
Division. (See Appendix A of the Work Permit Handbook for the
address.)
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Who may issue work permits?
Education Code Section 49110 specifies that only the
following persons may issue work permits:
- Superintendent of any local public school district in which
any minor resides; or
- Superintendent of county schools if the minor resides in
a portion of a county not under the jurisdiction of the superintendent
of a school district; or
- Person holding a services credential with a specialization
in pupil personnel services authorized, in writing, by the superintendent
(see Appendix B of the Work Permit Handbook for a template of
a letter); or
- Work Experience Education teacher/coordinator authorized,
in writing, by the superintendent (see Appendix B of the Work
Permit Handbook for a template of the letter); or
- Person authorized, in writing, by the superintendent if the
designated person is not available, and delay in issuing a permit
would jeopardize the ability of the pupil to secure work; or
- Person authorized, in writing, to issue work permits if the
superintendent is absent from the district and the district
does not employ a person holding the necessary credential or
a Work Experience Education teacher/coordinator.
The Division of Labor Standards Enforcement (DLSE)
issues all entertainment industry permits. Inquiring parents or
employers must be referred to the nearest DLSE office. (See Appendix
A of the Work Permit Handbook for the locations.)
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May a private school issue work permits
to its students?
Yes. At the discretion of the superintendent of the public school
district, a private school may be authorized, in writing, to
issue work permits for its students. (See Appendix C of the
Work Permit Handbook for a template of the letter to authorize
a qualified person to issue the permit.) The person authorized
to issue work permits must be knowledgeable about federal and
state labor laws affecting minors and the work permit issuance
process (Education Code Section 49110.1).
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May a work permit be issued by the public
school to a pupil who attends a private school located within
the school district boundaries, even though the pupil is not
a resident of the school district?
Yes. The California Department of Education, Deputy General
Counsel's office, has found that, pursuant to written authorization
from the superintendent of the public school district, a work
permit may validly be issued for such a pupil.
Further, the findings indicated that the intent of Education
Code sections 49110 and 49110.1 was not to restrict, on
the basis of legal residence, the authority to issue work permits,
but rather to consider the school district in which the pupil
attends school.
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May the local school issue a work permit
for a child who is under school age?
No. A child under school age is probably being employed in the
entertainment industry. In such a case, permission to work must
be issued by the State Labor Commissioner through the Department
of Industrial Relations, Department of Labor Standards Enforcement
(Education Code sections 48225, 48225.5, and 49111;
Labor Code sections 1308.5, 1308.6, and 1308.7).
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What process should be followed to issue
a "Permit to Employ and Work" (form B1-4)?
The minor/student, after obtaining a promise of employment,
must obtain the "Statement of Intent to Employ Minor and
Request for Work Permit" (form B1-1 or B1S-1) from the
school/school district.
The minor must complete the "minor" section, request
that the employer and parent complete their sections (making
certain to obtain both required signatures), and then return
the completed form to the appropriate school authority.
The school authority must verify the minor/student’s date
of birth and the type of work permit to be issued. If all requirements
are met, the work permit issuing authority may issue the "Permit
to Employ and Work."
The local school district has discretion to impose additional
requirements for the issuance of a work permit. For instance,
the school district may have a policy requiring the minor to
maintain a 2.0 grade point average (GPA). In such a case, the
work permit issuing authority would need to verify the student’s
GPA. Another policy might require the minor to exhibit his/her
social security card for verification by the school authority.
Other local policies should be verified through the work permit
issuing authority.
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Must the work permit issuing authority
use only school records to verify the date of birth on the
work permit application form (form B1-1 or B1S-1)?
No. The date of birth may be verified by using a birth certificate,
baptism certificate, or a passport in lieu of school records.
When there are no available official documents, an affidavit
by the parents or legal guardian may suffice (Education
Code Section 49133).
If school records are not used, a photocopy of the age verification
document should be attached to the school's copy of the work
permit.
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Does a student have to present his/her
social security card to school authorities when applying for
a work permit?
No. The statement of intent to employ (form B1-1 or B1S-1) must
contain, among other information, the name, address, telephone
number, and social security number of the minor (Education
Code Section 49163). The statute does not specify that
the card itself must be presented, only that the number be on
the application for a work permit.
The California Department of Education maintains that the statement
(form B1-1 or B1S-1) signed by the parent or legal guardian
("I hereby certify that . . . the information herein is
correct and true") holds the adult responsible for providing
accurate information.
School districts may be more restrictive and require the monitor
to provide the social security card for purposes of verification
before the work permit is issued.
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May a work permit be issued for a minor
who is being "home schooled"? Isn't a "home
school" the same as a private school? When a noncredentialed
parent is teaching his/her own child using a correspondence
course or other type of course, may the child be issued a
work permit?
Education Code Section 49110 authorizes school district
officials to issue work permits to eligible students. Education
Code Section 49110.1 authorizes the school district superintendent
to designate a private school official (see Appendix C) to issue
work permits to students who are enrolled in a private school
pursuant to Education Code Section 48222. It is the
exclusive responsibility of the school district to decide, under
district criteria, whether the private entity is a private school
as described in Education Code Section 48222. The same
determination would be made regarding a parent who teaches exclusively
his or her own child or children and who files a private school
affidavit pursuant to Education Code Section 33190.
School officials seeking further guidance should consult their
district’s legal counsel.
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Does the school have any discretion to
limit the minor's work activity?
Yes. As a condition of issuance, the local school/school district
may reduce maximum work hours and impose additional occupational
restrictions not specified in statute or regulation. The work
permit issuing authority does not have discretion to extend
hours beyond the maximum specified in statute or waive any occupational
restrictions specified in statute or regulation.
For example, sixteen and seventeen year-olds are permitted to
work up to 48 hours a week during the school year (Labor
Code Section 1391). Most schools, however, impose a weekly
limit that ranges between 20 and 36 hours per week while school
is in session. (See charts in Chapter 2 of the Work Permit Handbook).
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When school is in session, a sixteen or
seventeen year-old is permitted to work up to 48 hours a week;
4 hours on school days; and 8 hours on non-school days and
days preceding a non-school day. May a sixteen or seventeen
year-old actually work 48 hours in a week while school is
in session?
Yes. Federal law defines a week that "school is in session"
as a week in which school is scheduled for one day. An example
might be the week during which Thanksgiving is celebrated.
A school might be in session only on Monday and Tuesday. The
minor could work eight hours per day on Tuesday (day preceding
a non-school day), Wednesday, Thursday, Friday, Saturday, and
Sunday. Monday would be the day off. In that example, the student
would have worked 48 hours while school was in session (Education
Code sections 49112 and 49116; Labor Code Section
1391).
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May a fourteen or fifteen year-old work
during the school day?
No. A fourteen or fifteen year-old is limited to eighteen hours
per week when public school is in session. All work hours must
be outside the scheduled public school day. An exception is
made for students enrolled in Work Experience Education or career
exploration programs; these students may work up to 23 hours
per week and, if appropriate, during the hours school is in
session. (See charts in Chapter 2 of the Work Permit Handbook.)
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What is a "schoolday" and what
does "school in session" mean?
A minimum schoolday in any high school or junior high school
is defined as any day in which the minor is scheduled to attend
school for 240 minutes. Anything less does not qualify as a
schoolday, and work hours may be increased on such days even
though the minor receives instruction on that day (Education
Code sections 46141 and 46142; Labor Code Section
1391).
Exemptions to the 240-minute standard are for students who attend
evening high school, a regional occupational center, opportunity
classes, a continuation high school, late afternoon or Saturday
vocational training programs conducted under a federally approved
plan for vocational education, and for students enrolled in
an approved Work Experience Education program (Education
Code Section 46141). In addition, students in grades eleven
and twelve who attend a college or a university part-time are
exempt from a full 240-minute minimum day.
Continuation high schools are required to have a 180-minute
schoolday. Independent study programs are defined instructionally
in the Education Code, but there are no regulations
concerning "seat time."
State law has no definition of "school in session"
but the federal government defines the term as any week in which
the public school for the county is in session for at least
one day. (See “Hours of Work” in Chapter 2 of the
Work Permit Handbook.)
Private schools must also adhere to public school calendars,
hours when school is in session, regulations and related labor
laws when issuing work permits (form B1-4).
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How long do copies of work permits have
to be retained?
The school district must retain a copy of the work permit application
(form B1-1 or B1S-1) and work permit (form B1-4) until the end
of the fourth year after the work permit was issued. Those files
may be retained on a computer disk(s) and, if requested, can
be printed for examination (California Code of Regulations,
Title 5, Section 16026).
The employer must retain the minor’s work permit until
the beginning of the fourth year after the permit was issued
(Labor Code sections 1174 and 1299).
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Does a minor working in a restaurant attached
to a casino on an Indian reservation need a work permit?
There is no definitive answer to this question. Each situation
must be dealt with on a case-by-case basis. Who has jurisdiction?
The state or federal government? Is the casino run by the tribe
or an outside entity? Who is the employer? Is the work area
restricted to the restaurant or do the minors serve meals in
the casino? Is the restaurant distinctly separate from the casino
(e.g., separated by a door) or is it part of the gaming area?
Contact your regional office of the California Division of Labor
Standards Enforcement with questions about specific situations.
(See Appendix A of the Work Permit Handbook.)
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May an entry-level employee be paid less
than the minimum wage?
Yes. The Industrial Welfare Commission Orders of 2001 state
that "employees during their first one-hundred sixty (160)
hours of employment in occupations in which they have no previous
similar or related experience, may be paid not less than eighty-five
percent (85 percent) of the minimum wage rounded to the nearest
nickel."
On January 1, 2001, when the minimum wage was increased to $6.75
per hour, the "Learners" wage became $5.75 per hour.
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When is a student considered a trainee
or a volunteer, not an employee?
The Fair Labor Standards Act (FLSA) applies to any person involved
in an employer-employee relationship. The FLSA is administered
by the U.S. Department of Labor, Wage and Hour Division, with
respect to private employment, state and local government employment,
and other agency employment. (Code of Federal Regulations,
Title 29, Section 204.)
The mere knowledge by an employer of work done for him/her by
another is sufficient to create the employment relationship
under the FLSA. The U.S. Department of Labor has always considered
work performed as part of an evaluation or training program
to be compensable.
Whether a trainee or student is an employee under the FLSA will
depend on all of the circumstances surrounding the activities
on the premises of the employer. A student is not required to
be paid if he/she is a trainee, a volunteer, or donates labor
to a school (e.g., in-school placement).
Trainee
The trainee/student is NOT an employee within the meaning
of the FLSA if all six of the following criteria apply to the
situation:
- The training, even though it includes actual operation of
the employer's facilities, is similar to that which would be
given in a vocational school (i.e., a curriculum is followed
and the student is under continued and direct supervision either
by representatives of the school or by employees of the business).
- The training is intended to benefit the trainee/student rather
than to meet the labor needs of the business.
- The trainee/student does not displace a regular employee,
does not fill a vacant position, does not relieve an employee
of assigned duties, and does not perform services that, although
not ordinarily performed by employees, clearly are of benefit
to the business.
- The employer that provides the training derives no immediate
advantage from the activities of the trainee/student and, on
occasion, the employer’s operations may actually be impeded.
- The trainee/student is not necessarily entitled to a job
at the conclusion of the training period.
- The employer and the trainee/student understand that the trainee/student
is not entitled to wages for the time spent in training.
Examples of unpaid training include the following
situations:
- In a hospital: The student job-shadows a nurse by following
and observing the nurse.
- In a supermarket: The student does simulated work with other
students and/or the teacher: rings-up baskets of groceries,
makes change, learns assorted transactions and returns groceries
to the shelves.
- In an office: The student enters worthless data on a company
computer that is not used to conduct business.
Volunteer
Commercial businesses may never legally
utilize unpaid volunteers.
An individual may serve as unpaid volunteer for
public service or for religious or humanitarian objectives. Typically
authorized volunteer sites include established volunteer programs
operated by charitable nonprofit organizations, governmental agencies,
hospitals, and nursing homes. A student may be provided opportunities
to participate in meaningful educational activities or programs.
For example, a student may choose to assist with school fund-raisers,
deliver meals to the homebound, visit patients in nursing homes,
or solicit contributions.
A student may be considered to be a "volunteer"
within the meaning of the FLSA if the intent is clearly to donate
his/her services for the public good. Schools may not legally
require a student to "volunteer" or perform unpaid public
service as a way to gain vocational experience, as a condition
of graduation, or as a prerequisite for other school activities.
Only the courts may require or commit persons to perform unpaid
public service work as part of a correctional program, in lieu
of serving prison time, or while in a work-release program.
A person employed by a religious, charitable,
governmental, or nonprofit organization is not allowed to "volunteer"
the same type of services (any activity directly related to the
job) during the weeks employed.
Examples of volunteers:
- The student chooses to participate voluntarily at the city's
established zoo volunteer program.
- The student volunteers as a "Candy Striper" to donate
some spare time in helping patients in a hospital.
In-School Placement
As part of the overall educational program, schools may permit
or require a student to engage in various school-related work
programs in the school district for periods of no more than an
hour per day (or an equivalent amount of overall time).
Examples of in-school placement are as follows:
- The student helps in the school lunchroom for periods of 30
minutes to one hour per day.
- The student performs minor clerical work in the school office
or library.
Application of the Fair Labor Standards
Act to School-Related Programs
Do all of the following criteria apply to the
individual student's placement at a business establishment?
(The six criteria should be used to determine whether students
have to be paid and Federal Labor Standards Act (FLSA) child labor
laws apply. Answer yes or no to each question listed below)
- The training, even though it includes actual operation of
the employer's facilities, is similar to that which would be
given in a vocational school (i.e., a curriculum is followed
and the student is under continued and direct supervision either
by representatives of the school or by employees of the business.
- The training is for the benefit of the trainee or student;
such placement is not made to meet the labor needs of the business.
- The trainee or student does not displace a regular employee,
does not fill a vacant position, does not relieve an employee
of assigned duties, and does not perform services that, although
not ordinarily performed by employees, clearly are of benefit
to the business.
- The employer providing the training derives no advantage
from the activities of the trainee or student and, on occasion,
the employer's operations may actually be impeded.
- The trainee or student is not necessarily entitled to a job
at the conclusion of the training period.
- The employer and the trainee or student understands that
the trainee or student is not entitled to wages for the time
spent in training.
If you answers YES to all six criteria, the individual
student is NOT an employee within the meaning of the FLSA. Wages
are not required.
If you answered NO to any of the six criteria,
either the business or the school system must compensate the student
worker; both parties are jointly responsible for compliance with
labor laws.
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