Transition and Fair Labor Standards

Providing students with an opportunity to learn about work in realistic settings is a highly regarded component of comprehensive transition services (Powell, Panscofar, Steere, 1991).  Teachers and employers, however, must be certain to afford students the full protection of the nation's labor laws as they transition through community-based educational experiences.  When using community-based vocational instruction as a program option, students must be classified as trainees.  The Fair Labor Standards Act (FLSA) (Title 29, U.S.C.) establishes the conditions under which students are to be considered as part of an employment relationship. Under these guidelines, a student is considered to be a trainee and not an employee only if several standards are met.  These standards include:

  • The student's work experience is a clearly defined part of his or her IEP.

  • The student is not currently capable of competitive employment at or above minimum wage and needs ongoing support to perform in a work setting.

  • The student is working for purposes of vocational evaluation or training and is supervised by school personnel.

  • The student's work at the community-based job site does not immediately benefit the employer, as seen in part by the lack of any displacement of existing employees or vacant positions.

  • As a general guideline, specific hours of on-the-job attendance are not exceeded for purposes of vocational exploration (5 hours per job), assessment (90 hours), and training (120 hours)  (Hakola, 1998).

Should any of these criteria not be met, the student will be considered an employee of the business, and properly compensated under the FLSA.  For more information regarding transition services contact Tracy English, Transition Specialist, 757-221-1708, or by e-mail twengl@facstaff.wm.edu.

References

Hakola, S. (1998). Individuals with disabilities education law report. No. 16.  Horsham, PA: LRP Publications.

Powell, T., Pancsofar, E. L., Steere, D. (1991).  Supported Employment:  Providing integrated employment opportunities for persons with disabilities. New York: Longman.