29 U.S.C. § 214 — Employment under special certificates

Page 99 TITLE 29—LABOR § 214 1 See References in Text note below. sults of his studies along with his recommendations for proposed legislation to second session of Eighty-sev- enth Congress. TRANSPORTATION OF MIGRANT FARM WORKERS Act Aug. 3, 1956, ch. 905, § 3, 70 Stat. 958, provided that: ‘‘Section 13(b)(1) of the Fair Labor Standards Act, as amended [subsec. (b)(1) of this section] shall not apply in the case of any employee with respect to whom the Interstate Commerce Commission [now Sec- retary of Transportation] has power to establish quali- fications and maximum hours of service solely by vir- tue of section 204(a)(3a) of the Interstate Commerce Act [now 49 U.S.C. 31502].’’ Executive Documents TRANSFER OF FUNCTIONS Functions vested by law (including reorganization plans) in Bureau of the Budget or Director of Bureau of the Budget transferred to President of the United States by section 101 of Reorg. Plan No. 2 of 1970, eff. July 1, 1970, 35 F.R. 7959, 84 Stat. 2085, set out in the Ap- pendix to Title 5, Government Organization and Em- ployees. Section 102 of Reorg. Plan No. 2 of 1970 redesig- nated Bureau of the Budget as Office of Management and Budget. For transfer of functions of other officers, employees, and agencies of Department of Labor, with certain ex- ceptions, to Secretary of Labor, with power to delegate, see Reorg. Plan No. 6 of 1950, §§ 1, 2, 15 F.R. 3174, 64 Stat. 1263, set out in the Appendix to Title 5. § 214. Employment under special certificates (a) Learners, apprentices, messengers The Secretary, to the extent necessary in order to prevent curtailment of opportunities for employment, shall by regulations or by or- ders provide for the employment of learners, of apprentices, and of messengers employed pri- marily in delivering letters and messages, under special certificates issued pursuant to regula- tions of the Secretary, at such wages lower than the minimum wage applicable under section 206 of this title and subject to such limitations as to time, number, proportion, and length of service as the Secretary shall prescribe. (b) Students (1)(A) The Secretary, to the extent necessary in order to prevent curtailment of opportunities for employment, shall by special certificate issued under a regulation or order provide, in ac- cordance with subparagraph (B), for the employ- ment, at a wage rate not less than 85 per centum of the otherwise applicable wage rate in effect under section 206 of this title or not less than $1.60 an hour, whichever is the higher, of full- time students (regardless of age but in compli- ance with applicable child labor laws) in retail or service establishments. (B) Except as provided in paragraph (4)(B), during any month in which full-time students are to be employed in any retail or service es- tablishment under certificates issued under this subsection the proportion of student hours of employment to the total hours of employment of all employees in such establishment may not exceed— (i) in the case of a retail or service establish- ment whose employees (other than employees engaged in commerce or in the production of goods for commerce) were covered by this chapter before the effective date of the Fair Labor Standards Amendments of 1974— (I) the proportion of student hours of em- ployment to the total hours of employment of all employees in such establishment for the corresponding month of the immediately preceding twelve-month period, (II) the maximum proportion for any cor- responding month of student hours of em- ployment to the total hours of employment of all employees in such establishment appli- cable to the issuance of certificates under this section at any time before the effective date of the Fair Labor Standards Amend- ments of 1974 for the employment of stu- dents by such employer, or (III) a proportion equal to one-tenth of the total hours of employment of all employees in such establishment, whichever is greater; (ii) in the case of retail or service establish- ment whose employees (other than employees engaged in commerce or in the production of goods for commerce) are covered for the first time on or after the effective date of the Fair Labor Standards Amendments of 1974— (I) the proportion of hours of employment of students in such establishment to the total hours of employment of all employees in such establishment for the corresponding month of the twelve-month period imme- diately prior to the effective date of such Amendments, (II) the proportion of student hours of em- ployment to the total hours of employment of all employees in such establishment for the corresponding month of the immediately preceding twelve-month period, or (III) a proportion equal to one-tenth of the total hours of employment of all employees in such establishment, whichever is greater; or (iii) in the case of a retail or service estab- lishment for which records of student hours worked are not available, the proportion of student hours of employment to the total hours of employment of all employees based on the practice during the immediately pre- ceding twelve-month period in (I) similar es- tablishments of the same employer in the same general metropolitan area in which such establishment is located, (II) similar estab- lishments of the same or nearby communities if such establishment is not in a metropolitan area, or (III) other establishments of the same general character operating in the community or the nearest comparable community. For purpose of clauses (i), (ii), and (iii) of this subparagraph, the term ‘‘student hours of em- ployment’’ means hours during which students are employed in a retail or service establish- ment under certificates issued under this sub- section. (2) The Secretary, to the extent necessary in order to prevent curtailment of opportunities for employment, shall by special certificate issued under a regulation or order provide for the employment, at a wage rate not less than 85 per centum of the wage rate in effect under sec- tion 206(a)(5) 1 of this title or not less than $1.30 Page 100 TITLE 29—LABOR § 214 an hour, whichever is the higher, of full-time students (regardless of age but in compliance with applicable child labor laws) in any occupa- tion in agriculture. (3) The Secretary, to the extent necessary in order to prevent curtailment of opportunities for employment, shall by special certificate issued under a regulation or order provide for the employment by an institution of higher edu- cation, at a wage rate not less than 85 per cen- tum of the otherwise applicable wage rate in ef- fect under section 206 of this title or not less than $1.60 an hour, whichever is the higher, of full-time students (regardless of age but in com- pliance with applicable child labor laws) who are enrolled in such institution. The Secretary shall by regulation prescribe standards and require- ments to insure that this paragraph will not cre- ate a substantial probability of reducing the full-time employment opportunities of persons other than those to whom the minimum wage rate authorized by this paragraph is applicable. (4)(A) A special certificate issued under para- graph (1), (2), or (3) shall provide that the stu- dent or students for whom it is issued shall, ex- cept during vacation periods, be employed on a part-time basis and not in excess of twenty hours in any workweek. (B) If the issuance of a special certificate under paragraph (1) or (2) for an employer will cause the number of students employed by such employer under special certificates issued under this subsection to exceed six, the Secretary may not issue such a special certificate for the em- ployment of a student by such employer unless the Secretary finds employment of such student will not create a substantial probability of re- ducing the full-time employment opportunities of persons other than those employed under spe- cial certificates issued under this subsection. If the issuance of a special certificate under para- graph (1) or (2) for an employer will not cause the number of students employed by such em- ployer under special certificates issued under this subsection to exceed six— (i) the Secretary may issue a special certifi- cate under paragraph (1) or (2) for the employ- ment of a student by such employer if such employer certifies to the Secretary that the employment of such student will not reduce the full-time employment opportunities of persons other than those employed under spe- cial certificates issued under this subsection, and (ii) in the case of an employer which is a re- tail or service establishment, subparagraph (B) of paragraph (1) shall not apply with re- spect to the issuance of special certificates for such employer under such paragraph. The requirement of this subparagraph shall not apply in the case of the issuance of special cer- tificates under paragraph (3) for the employ- ment of full-time students by institutions of higher education; except that if the Secretary determines that an institution of higher edu- cation is employing students under certificates issued under paragraph (3) but in violation of the requirements of that paragraph or of regula- tions issued thereunder, the requirements of this subparagraph shall apply with respect to the issuance of special certificates under para- graph (3) for the employment of students by such institution. (C) No special certificate may be issued under this subsection unless the employer for whom the certificate is to be issued provides evidence satisfactory to the Secretary of the student sta- tus of the employees to be employed under such special certificate. (D) To minimize paperwork for, and to encour- age, small businesses to employ students under special certificates issued under paragraphs (1) and (2), the Secretary shall, by regulation or order, prescribe a simplified application form to be used by employers in applying for such a cer- tificate for the employment of not more than six full-time students. Such an application shall re- quire only— (i) a listing of the name, address, and busi- ness of the applicant employer, (ii) a listing of the date the applicant began business, and (iii) the certification that the employment of such full-time students will not reduce the full-time employment opportunities of persons other than persons employed under special certificates. (c) Handicapped workers (1) The Secretary, to the extent necessary to prevent curtailment of opportunities for em- ployment, shall by regulation or order provide for the employment, under special certificates, of individuals (including individuals employed in agriculture) whose earning or productive ca- pacity is impaired by age, physical or mental de- ficiency, or injury, at wages which are— (A) lower than the minimum wage applicable under section 206 of this title, (B) commensurate with those paid to non- handicapped workers, employed in the vicinity in which the individuals under the certificates are employed, for essentially the same type, quality, and quantity of work, and (C) related to the individual’s productivity. (2) The Secretary shall not issue a certificate under paragraph (1) unless the employer pro- vides written assurances to the Secretary that— (A) in the case of individuals paid on an hourly rate basis, wages paid in accordance with paragraph (1) will be reviewed by the em- ployer at periodic intervals at least once every six months, and (B) wages paid in accordance with paragraph (1) will be adjusted by the employer at peri- odic intervals, at least once each year, to re- flect changes in the prevailing wage paid to experienced nonhandicapped individuals em- ployed in the locality for essentially the same type of work. (3) Notwithstanding paragraph (1), no em- ployer shall be permitted to reduce the hourly wage rate prescribed by certificate under this subsection in effect on June 1, 1986, of any handicapped individual for a period of two years from such date without prior authorization of the Secretary. (4) Nothing in this subsection shall be con- strued to prohibit an employer from maintain- ing or establishing work activities centers to provide therapeutic activities for handicapped clients. Page 101 TITLE 29—LABOR § 214 (5)(A) Notwithstanding any other provision of this subsection, any employee receiving a spe- cial minimum wage at a rate specified pursuant to this subsection or the parent or guardian of such an employee may petition the Secretary to obtain a review of such special minimum wage rate. An employee or the employee’s parent or guardian may file such a petition for and in be- half of the employee or in behalf of the em- ployee and other employees similarly situated. No employee may be a party to any such action unless the employee or the employee’s parent or guardian gives consent in writing to become such a party and such consent is filed with the Secretary. (B) Upon receipt of a petition filed in accord- ance with subparagraph (A), the Secretary with- in ten days shall assign the petition to an ad- ministrative law judge appointed pursuant to section 3105 of title 5. The administrative law judge shall conduct a hearing on the record in accordance with section 554 of title 5 with re- spect to such petition within thirty days after assignment. (C) In any such proceeding, the employer shall have the burden of demonstrating that the spe- cial minimum wage rate is justified as necessary in order to prevent curtailment of opportunities for employment. (D) In determining whether any special min- imum wage rate is justified pursuant to sub- paragraph (C), the administrative law judge shall consider— (i) the productivity of the employee or em- ployees identified in the petition and the con- ditions under which such productivity was measured; and (ii) the productivity of other employees per- forming work of essentially the same type and quality for other employers in the same vicin- ity. (E) The administrative law judge shall issue a decision within thirty days after the hearing provided for in subparagraph (B). Such action shall be deemed to be a final agency action un- less within thirty days the Secretary grants a request to review the decision of the administra- tive law judge. Either the petitioner or the em- ployer may request review by the Secretary within fifteen days of the date of issuance of the decision by the administrative law judge. (F) The Secretary, within thirty days after re- ceiving a request for review, shall review the record and either adopt the decision of the ad- ministrative law judge or issue exceptions. The decision of the administrative law judge, to- gether with any exceptions, shall be deemed to be a final agency action. (G) A final agency action shall be subject to judicial review pursuant to chapter 7 of title 5. An action seeking such review shall be brought within thirty days of a final agency action de- scribed in subparagraph (F). (d) Employment by schools The Secretary may by regulation or order pro- vide that sections 206 and 207 of this title shall not apply with respect to the employment by any elementary or secondary school of its stu- dents if such employment constitutes, as deter- mined under regulations prescribed by the Sec- retary, an integral part of the regular education program provided by such school and such em- ployment is in accordance with applicable child labor laws. (June 25, 1938, ch. 676, § 14, 52 Stat. 1068; Oct. 26, 1949, ch. 736, § 12, 63 Stat. 918; Pub. L. 87–30, § 11, May 5, 1961, 75 Stat. 74; Pub. L. 89–601, title V, § 501, Sept. 23, 1966, 80 Stat. 842; Pub. L. 93–259, § 24(a), (b), Apr. 8, 1974, 88 Stat. 69, 72; Pub. L. 95–151, §§ 12, 13, Nov. 1, 1977, 91 Stat. 1252; Pub. L. 99–486, Oct. 16, 1986, 100 Stat. 1229; Pub. L. 101–157, § 4(d), Nov. 17, 1989, 103 Stat. 941.) Editorial Notes REFERENCES IN TEXT Effective date of the Fair Labor Standards Amend- ments of 1974, referred to in subsec. (b)(1)(B)(i), (ii), means May 1, 1974, except as otherwise specifically pro- vided, under provisions of section 29(a) of Pub. L. 93–259, set out as an Effective Date of 1974 Amendment note under section 202 of this title. Section 206(a)(5) of this title, referred to in subsec. (b)(2), was redesignated section 206(a)(4) of this title by Pub. L. 110–28, title VIII, § 8103(c)(1)(B), May 25, 2007, 121 Stat. 189. AMENDMENTS 1989—Subsec. (b)(1)(A). Pub. L. 101–157 struck out ‘‘(or in the case of employment in Puerto Rico or the Virgin Islands not described in section 205(e) of this title, at a wage rate not less than 85 per centum of the otherwise applicable wage rate in effect under section 206(c) of this title)’’ after ‘‘whichever is the higher’’. Subsec. (b)(2), (3). Pub. L. 101–157 struck out ‘‘(or in the case of employment in Puerto Rico or the Virgin Is- lands not described in section 205(e) of this title, at a wage rate not less than 85 per centum of the wage rate in effect under section 206(c) of this title)’’ after ‘‘whichever is the higher’’. 1986—Subsec. (c). Pub. L. 99–486 amended subsec. (c) generally, revising and restating as pars. (1) to (5) pro- visions formerly contained in pars. (1) to (3). 1977—Subsec. (b)(4)(B). Pub. L. 95–151, § 12(a), sub- stituted ‘‘six’’ for ‘‘four’’ wherever appearing. Subsec. (b)(4)(D). Pub. L. 95–151, § 13, added subpar. (D). 1974—Subsec. (a). Pub. L. 93–259, § 24(a), added subsec. (a) and struck out former subsec. (a) which had pro- vided: ‘‘The Secretary of Labor, to the extent necessary in order to prevent curtailment of opportunities for employment, shall by regulations or by orders provide for the employment of learners, of apprentices, and of messengers employed primarily in delivery letters and messages, under special certificates issued pursuant to regulations of the Secretary, at such wages lower than the minimum wage applicable under section 206 of this title and subject to such limitations as to time, num- ber, proportion, and length of service as the Secretary shall prescribe.’’ Subsec. (b). Pub. L. 93–259, § 24(a), added subsec. (b) and struck out former subsec. (b) which had provided: ‘‘The Secretary, to the extent necessary in order to prevent curtailment of opportunities for employment, shall by regulation or order provide for the employ- ment of full-time students, regardless of age but in compliance with applicable child labor laws, on a part- time basis in retail or service establishments (not to exceed twenty hours in any workweek) or on a part- time or full-time basis in such establishments during school vacations, under special certificates issued pur- suant to regulations of the Secretary, at a wage rate not less than 85 per centum of the minimum wage ap- plicable under section 206 of this title, except that the proportion of student hours of employment to total hours of employment of all employees in any establish- ment may not exceed (1) such proportion for the cor- Page 102 TITLE 29—LABOR § 215 responding month of the twelve-month period pre- ceding May 1, 1961, (2) in the case of a retail or service establishment whose employees (other than employees engaged in commerce or in the production of goods for commerce) are covered by this chapter for the first time on or after the effective date of the Fair Labor Standards Amendments of 1966, such proportion for the corresponding month of the twelve-month period im- mediately prior to such date, or (3) in the case of a re- tail or service establishment coming into existence after May 1, 1961, or a retail or service establishment for which records of student hours worked are not available, a proportion of student hours of employment to total hours of employment of all employees based on the practice during the twelve-month period preceding May 1, 1961, in (A) similar establishments of the same employer in the same general metropolitan area in which the new establishment is located, (B) similar es- tablishments of the same employer in the same or near- by counties if the new establishment is not in a metro- politan area, or (C) other establishments of the same general character operating in the community or the nearest comparable community. Before the Secretary may issue a certificate under this subsection he must find that such employment will not create a substan- tial probability of reducing the full-time employment opportunities of persons other than those employed under this subsection.’’ Subsecs. (c), (d). Pub. L. 93–259, § 24(a), (b), struck out subsec. (c) and redesignated subsec. (d) as (c). Former subsec. (c) had provided: ‘‘The Secretary, to the extent necessary in order to prevent curtailment of opportuni- ties for employment, shall by certificate or order pro- vide for the employment of full-time students, regard- less of age but in compliance with applicable child labor laws, on a part-time basis in agriculture (not to exceed twenty hours in any workweek) or on a part- time or full-time basis in agriculture during school va- cations, at a wage rate not less than 85 per centum of the minimum wage applicable under section 206 of this title. Before the Secretary may issue a certificate or order under this subsection he must find that such em- ployment will not create a substantial probability of reducing the full-time employment opportunities of persons other than those employed under this sub- section.’’ 1966—Pub. L. 89–601 provided for employment of full- time students regardless of age but in compliance with applicable child labor laws outside of their school hours in retail or service establishments or in agriculture at not less than 85 percent of the minimum wage in full- time positions during school vacations or in part-time positions not to exceed 20 hours in any workweek under certificates issued by the Secretary, set out the for- mula for the allowable proportion of student hours of employment to total hours of employment, provided for the employment of handicapped workers at rates down to 50 percent of the applicable minimum wage and at even lower rates for persons suffering severe impair- ment, authorized the establishment of special rates for handicapped workers employed in work activities cen- ters, and defined work activity centers. 1961—Pub. L. 87–30 provided for employment of stu- dents in cl. (1). 1949—Act Oct. 26, 1949, substituted ‘‘primarily’’ for ‘‘exclusively’’ after ‘‘messengers employed’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1977 AMENDMENT Amendment by Pub. L. 95–151 effective Nov. 1, 1977, see section 15(b) of Pub. L. 95–151, set out as a note under section 203 of this title. EFFECTIVE DATE OF 1974 AMENDMENT Amendment by Pub. L. 93–259 effective May 1, 1974, see section 29(a) of Pub. L. 93–259, set out as a note under section 202 of this title. EFFECTIVE DATE OF 1966 AMENDMENT Amendment by Pub. L. 89–601 effective Feb. 1, 1967, except as otherwise provided, see section 602 of Pub. L. 89–601, set out as a note under section 203 of this title. EFFECTIVE DATE OF 1961 AMENDMENT Amendment by Pub. L. 87–30 effective upon expira- tion of one hundred and twenty days after May 5, 1961, except as otherwise provided, see section 14 of Pub. L. 87–30, set out as a note under section 203 of this title. EFFECTIVE DATE OF 1949 AMENDMENT Amendment by act Oct. 26, 1949, effective ninety days after Oct. 26, 1949, see section 16(a) of act Oct. 26, 1949, set out as a note under section 202 of this title. RULES, REGULATIONS, AND ORDERS PROMULGATED WITH REGARD TO 1966 AMENDMENTS Secretary authorized to promulgate necessary rules, regulations, or orders on and after the date of the en- actment of Pub. L. 89–601, Sept. 23, 1966, with regard to the amendments made by Pub. L. 89–601, see section 602 of Pub. L. 89–601, set out as a note under section 203 of this title. STUDY OF WAGES PAID HANDICAPPED CLIENTS IN SHELTERED WORKSHOPS Pub. L. 89–601, title VI, § 605, Sept. 23, 1966, 80 Stat. 845, instructed Secretary of Labor to commence a com- plete study of wage payments to handicapped clients of sheltered workshops and of feasibility of raising exist- ing wage standards in such workshops. The Secretary was directed to report to Congress by July 1, 1967, find- ings of such study with appropriate recommendations. Executive Documents TRANSFER OF FUNCTIONS For transfer of functions of other officers, employees, and agencies of Department of Labor, with certain ex- ceptions, to Secretary of Labor, with power to delegate, see Reorg. Plan No. 6 of 1950, §§ 1, 2, 15 F.R. 3174, 64 Stat. 1263, set out in the Appendix to Title 5, Government Or- ganization and Employees. § 215. Prohibited acts; prima facie evidence (a) After the expiration of one hundred and twenty days from June 25, 1938, it shall be un- lawful for any person— (1) to transport, offer for transportation, ship, deliver, or sell in commerce, or to ship, deliver, or sell with knowledge that shipment or delivery or sale thereof in commerce is in- tended, any goods in the production of which any employee was employed in violation of section 206 or section 207 of this title, or in violation of any regulation or order of the Sec- retary issued under section 214 of this title; ex- cept that no provision of this chapter shall im- pose any liability upon any common carrier for the transportation in commerce in the reg- ular course of its business of any goods not produced by such common carrier, and no pro- vision of this chapter shall excuse any com- mon carrier from its obligation to accept any goods for transportation; and except that any such transportation, offer, shipment, delivery, or sale of such goods by a purchaser who ac- quired them in good faith in reliance on writ- ten assurance from the producer that the goods were produced in compliance with the requirements of this chapter, and who ac- quired such goods for value without notice of any such violation, shall not be deemed unlaw- ful;