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WOMAN: The broadcast is now starting. All attendees are in listen-only mode.
MICHAEL STOEHR: Good morning. I'd like to welcome everyone to today's session in the series for the Pennsylvania Community of Practice for Secondary Transition. Today's topic is Labor Laws and School-to-Work
Transition. I wanted to remind folks that you can find the handout for today which is a PowerPoint on the secondarytransition.org website. So if you go to secondarytransition.org, if you scroll down
to Hot Topics and Upcoming Events in Secondary Transition, you go down to the upcoming events and you click on today's date, January 8th, the Community of Practice session on Labor Laws webinar, when
you click on that, the handout for today, again which is the PowerPoint, will come up. I wanted to remind folks also that the past sessions in this series, so the October 16th, November 20th, and
December 11th sessions are on the site also. Also connected to each of these are the recorded sessions that are closed captioned. So when you click on that, you will go to access the archived
webinar, when you click on this, it will take you to the actual webinar, it's been recorded and closed captioned. As a reminder, today's session on the Labor Laws will also be added to this series of
recorded sessions. It will take about six weeks for that occur though. But check back if you're interested in finding that information. So again, it's on the secondarytransition.org website. You can
also find this information on the PaTTAN website. As a reminder, the mission of PaTTAN, which is one of the sponsors of today's session, is to support the Bureau of Special Education, to build local
capacities of schools and to assist youth and their families in their education and transition process. We believe through the Department of Education that all students need to be supported in the
least resitrictive environment and for those of us involved in secondary transition [inaudible] as we prepare kids to go on to further training employment and live independently in their communities.
Again, as a reminder, if you're just joining us, you can find the handout today on the secondarytransition.org website under Hot Topics and then when you click there you'll be looking for today's
date, January 8th and the broadcast. I wanted to introduce today's presenters. We have with us today Dana Baccanti, who is the Chief Special Programs Division -- the Chief of Special Programs
Division of the Pennsylvania Office of Vocational Rehabilitation. And also joining Dana today is Patty Vasco, who is the Vocational Rehab Specialist who works in supporting in secondary transition
youth who are involved with OVR. And with that, I'm going to go ahead and turn this over to Dana and Patty for today's session.
DANA BACCANTI: Good morning everybody. This is Dana Baccanti and actually, I'm joining Patty Vasco today to assist with this presentation and just to say that over the past several years, this is a
topic that -- or the questions related to this topic that have been post to OVR and so it was really beneficial to us to research this topic and have more detailed information to support our
transition partners. So I'm going to -- with that, I'm going to turn it over to Patty and we're going to kind of tag team it throughout the presentation.
PATRICIA VASCO: Yes, good morning everyone. I hope everyone is warm. And hopefully the vortex will be leaving us shortly. Today's presentation, we have basically four goals. The first is to
familiarize the audience with the laws related to youth and young adults seeking work and work related experience. To discuss "Employment Relationship: under the Federal Labor Standards Act" which we
will now refer to as the FLSA. Major provisions of the FLSA including Youth Employment and Wages. And School to Work transition program tips for students in the workplace. Next.
DANA BACCANTI: One second. There we go. Sorry.
PATRICIA VASCO: All right. I'd like to begin by presenting the two definitions of transition. The first is by IDEIA and the second will be OVR through RSA. So the first, transition services means a
coordinated set of activities for a child with the disability that, number one: is designed to be within a results-oriented process, that is focused on improving the academic and functional
achievement of the child with a disability, to facilitate the child's movement from school to post-school activities, including postsecondary education, vocational education, integrated employment,
including supported employment, continuing an adult education, adult services, independent living or community participation. Number two: it's based on the individual child's needs, taking into
account the child's strengths, preferences and interests, and includes instruction, related services, community experiences, the development of employment and other post-school adult living
objectives, and if appropriate, acquisition of daily living skills and provision of a functional vocational evaluation.
DANA BACCANTI: This is Dana, and I just wanted to highlight there, you know, the -- where the whole issue of employment law and labor law comes in is really making sure that the students have
opportunity to engage in those community experiences and opportunity for students who are not going to benefit from a more standardized form of vocational evaluation and assessment to be assessed in
more functional situations, more real life situations where their true abilities are going to be properly assessed and evaluated. So I think that, you know, based upon law that is where a lot of the
more community-based experiences have evolved.
PATRICIA VASCO: Okay. Transition defined by the IDEIA continues with part B. Transition services for youth with disabilities may be special education if provided as specially designated
instruction, or related service, if required to assist a child with a disability to benefit from special education.
DANA BACCANTI: Okay. And when we talk about specially designed instruction, we may be talking about a community-based training experience or internship or evaluation, something that isn't going to
happen in a regular curriculum, something that is going to be very specifically tailor-made to that student's need.
PATRICIA VASCO: Okay. Now, transition as designed by the Rehabilitation Act of 1973 as amended. Transition services means a coordinated set of activities for a student, designed within an
outcome-oriented process, that promotes movement from school to post school activities, including postsecondary education, vocational training, integrated employment, including supported employment,
continuing and adult education, adult services, independent living, or community participation.
DANA BACCANTI: Do you see a pattern here?
PATRICIA VASCO: It sounds repetitive. Okay. The coordinated set of activities shall be based upon the individual youth or young adult with the disability's need, taking into account the youth or
young adult with a disability's preferences and interests, and must include instruction, community experiences, the development of employment and other post school adult living objectives, and, when
appropriate, acquisition of daily living skills and functional vocational evaluation.
DANA BACCANTI: So, here you have two major federal laws that are aligned with regards to transition services and part of the challenge has been that the federal labor laws and even the state labor
laws haven't caught up in aligning themselves with us. So hopefully, we'll be able to clarify any confusion that exists right now.
PATRICIA VASCO: And the final part of the definition of transition by the Rehab Act, transition services must promote or facilitate the achievement of the employment outcome identified in the youth
or young adult with disability's Individualized Plan for Employment or the IPE.
DANA BACCANTI: Okay. And you will see there are specific references to the IEP and the IPE in the Fair Labor Standards Act.
PATRICIA VASCO: Okay. There are a number of laws that impact Vocational Training and Employment. We are not going to go into all of these laws today. We are concentrating on the Fair Labor
Standards Act Training Agreement. So other laws that you will be familiar with will be the Americans with Disabilities Act, the Rehabilitation Act as amended, Workforce Investment Act of 1998, Social
Security Work Incentives, Ticket to Work and Work Incentives Improvement Act of 1999, and Pennsylvania Law - The Child Labor Act.
DANA BACCANTI: Okay. And the things that we just want to make mention about the Americans with Disabilities Act is we will discuss later in the presentation students with disabilities who are engaged
in community-based work experiences and non-paid work experiences or training are not considered employees and therefore would not be covered on the Americans with Disabilities Act necessarily as an
employee of that placement. However, in terms of public accessibility and all of the requirements under the ADA they would be covered. The other thing that I wanted to talk -- mention is the
Workforce Investment Act. The Workforce Investment Act actually has a significant amount of funding attached to it for paid work experiences. Some are youth employment programs and other, I guess
transition related programs that are for out-of-school youths and I just want to -- I make mention of this because youth with disabilities are automatically eligible for those program, and has to
have the documented disability and so they would have to demonstrate they're either receiving Social Security benefits or that they're working with OVR, but they are automatically eligible for those
programs provided that there's funding available. So, I just wanted to make mention of those two pieces of legislation in reference to our topic today.
PATRICIA VASCO: And as far as the Social Security Work Incentives and the Ticket to Work and Work Incentives Improvement Act of 1999, I'm quite familiar with those from a different lifetime here in
OVR. That was my pre-transition lifetime. So those two topics are a webinar in themselves, so we will not be touching upon them. That is for another day and another two hours. Okay. The presentation
will be mainly with the Fair Labor and Standards Act. Okay. The law is usually referred to as FSLA and is the federal wage law. Youth employment provisions are known as the Federal Child Labor laws
or requirements. This is enforced by the US Department Labor -- of Labor, the Employment Standards Administration, the Wage and Hour Division which is abbreviated in the PowerPoint as WH. And we have
a link that you can go to to get the closest office in your area. The FSLA was enacted in 1938 in part to establish rules regarding the employment of individuals under the age of 18 which -- commonly
known as Child Labor Laws. It contains provisions on minimum wage, overtime, and recordkeeping, and was last amended in May of 2011.
DANA BACCANTI: And I just want to point out, in research for this presentation, I was looking at the amendments from May of 2011 and they really don't touch upon the Child Labor Law components of the
Fair Labor Standards or Fair Labor Standards Act -- or Standards, I'm sorry, I'm getting, Fair...
PATRICIA VASCO: Fair Standards Labor Act.
DANA BACCANTI: Yeah.
PATRICIA VASCO: Fair Labor Standards Act?
DANA BACCANTI: Yeah, we got -- we've got some things mixed up here, so. Heidi and I must both be distracted because we missed that, so.
PATRICIA VASCO: Oh, there's a few that we've missed. Okay. The part that we're interested in of the Fair Labor Standards Act is 64c08. So you do not have to look at the whole law if you're
interested in it, just this part. So there was a Field Operations Handbook and I've given you the website to go to. The information we want is contained in chapter 64, Employment of Workers under
Disabilities at Special Minimum Wages under Section 14 c. Section 64c08 is specific to students with disabilities and workers with disabilities who are enrolled in individual rehabilitation programs.
So, this is where all the information that I pulled, well, most of it, had come from. So it's there for you as a reference.
DANA BACCANTI: The one thing that I want to point out is that a lot of the language in this chapter in this section refers to work being performed at community rehabilitation programs or what we
commonly refer to as sheltered employment program. And while I don't want to dismiss the value that those programs have played that -- in the past that, you know, we as a community have practiced in
transition are really moving towards more community integrated work experiences and outcomes for youths with disability. So those are things that we just want you to keep in my mind as we move
through the presentation. And in fact, that OVR does not recognize placement in sheltered employment placement as a successful rehabilitation that you don't recognize that as a position of community
integrated employment. So we are really encouraging our partners within education and certainly within the community rehab provider field to look to more community integrated opportunity.
PATRICIA VASCO: Okay. Section 64c08, youth and young adults with disabilities often are especially disadvantaged in the workplace before their relative inexperience, which further complicates their
ability to find and maintain meaningful employment.
DANA BACCANTI: You know, and we want to point out that youth and young adults in general, you know, "typical" youth and young adults lack work experience and often lack the soft skills and then when
you compound that with youth and young adult with a disability who may not have developed self-advocacy skills or may not have self-awareness with regards to their need for accommodation, it just
further complicates the whole entry into employment if you will.
PATRICIA VASCO: In 1992, the U.S. Departments of Labor and Education, jointly issued guidance regarding the employment relationship under the FLSA and community based education programs for
students with disabilities. For these youths, community based employment means placement in a work site outside of his or her school setting.
DANA BACCANTI: And one thing that I want to focus here is the community based employment. And just as a point of reference about this time, supported employment really became a focus within the --
within the field of vocational rehabilitation. So as these things were evolving within education, it really aligned itself well with what was going on with regards to supported employment. And in
looking at, you know, opportunities for youth to have real world work experiences in the community and in seeing that that had value.
PATRICIA VASCO: Okay. I'll continue with the history. In 1993, the U.S. Department of Labor and the National Rehabilitation Facilities Coalition jointly issued similar guidance regarding FLSA
employment relationship and individuals with disabilities, not students in local public school systems, who were enrolled in individualized community-based rehabilitation programs. Enrollment in
these individualized community-based rehabilitation programs for these individuals means placement in a work site away from the rehabilitation facility.
DANA BACCANTI: Right. And again, this kind of is in keeping with where the rehab was going in terms of not recognizing sheltered employment as a community integrated outcome of employment. So looking
at, you know, if an individual was performing work at the facility, the community rehab facility, they were considered an employee of the community rehab facility and looking at where they were
working away from the rehabilitation facility when those labor laws came into play in terms of when they were considered an employee of the rehab facility versus an employee of the off-site
PATRICIA VASCO: So in an effort to promote vocational training for workers with disabilities, the Wage and Hour Division will not assert an employment relationship between the worker with a
disability, the rehabilitation facility or school, and/or the business where the worker has been placed when all of the following seven criteria are met. And the criteria are the same for both
students and nonstudents enrolled in vocational program and I have to add at this point. I'm sorry that I'm kind of reading to you but it becomes important. I mean, I've just gleaned it down to this
match and Dana is adding all of the rest of the facts so I do apologize for that but it will become clear as we go through this.
DANA BACCANTI: And just note that when we talk about nonstudents, what we're referring to could be adult and when we talk about the employment relationship versus a trainee relationship versus an
internship versus a volunteer as well as a nonstudent could be a youth who is no longer in school so we just want to make that clarification and I think that as Patty mentioned, you know, the seven
criteria when we're talking about determining whether or not this is a community-based work experience, a non paid work experience, an internship, a training program, all of these criteria are really
important to consider when making that determination.
PATRICIA VASCO: Number one, participants are individuals with physical and/or mental disabilities for whom competitive employment at or above the minimum wage level is not immediately obtainable
and who, because of their disability, will need intensive ongoing support to perform in a work setting.
DANA BACCANTI: I think it's important that this, you know, to really recognize intensive ongoing support, you know, there are lots of students with disabilities who may not need the intensive supports
that we're talking about or may not need the community-based work experience in order to enter into competitive employment. So, I think that, you know, you need to -- when we're making consideration
for IEP development or IPE development and we're looking at community-based work experiences, it is really a service that this individual needs in order to achieve a successful employment and
PATRICIA VASCO: Participation is for vocational exploration, assessment or training in a community-based work site under the general supervision of rehabilitation organization personnel, or in the
case of a student with a disability, public school personnel.
DANA BACCANTI: So I think that the important part here is that youths are simply placed unless to be trained or supervised by the employer, you know -- and I think there's -- you know, you could argue
whether or not it's a benefit to the student or the youth with the disability to transition to at least partial supervision by a supervisor who is a supervisor at the place of employment, I mean, as
part of an assessment, how do they handle that transition from one supervisor to the next, how do they take directions from a supervisor rather than someone who comes from an educational background
or the rehab background. So I think the point here is that at some level, they have to be under the general supervision of the rehabilitation personnel, a job coach or a public school employee, a job
trainer, et cetera. And one of the things that Patty and I had talked about was, you know, in terms of the soft skills that are really essential to develop in interacting with co-workers and
supervisors, Skills to Pay the Bills, which is published by ODEP, contains the curriculum for teaching and assessing those soft skills and so we just wanted to put a plug in there that that might be
something that -- when talking about supervision might be something one to consider.
PATRICIA VASCO: Also the book, Skills to Pay the Bills a free publication which you can download from the website and there is also an instructional video to go along with it, to further plug this
book because I really do like it and we're going to try and implement some of it in OVR's work. So number three of the seven, community-based placements must be clearly defined components of the
individual rehabilitation programs developed and designed for the benefit of each individual. So each student with an individual will have an IEP which lists the needed transition services
established for the exploration, assessment, training, or cooperative vocational education components. So each participant in a community-based rehabilitation organization program must have an IPE
which includes a statement of needed transition services established for exploration, assessment, or training components. And in the past, these were called the Individualized Written Rehabilitation
Plans or IWRP.
DANA BACCANTI: Okay. And just, you know, as a point of reference, we haven't called IPEs, IWRPs for about 15 years, if not longer. So, when Patty was, you know, taking this from the actual FLSA, that
just kind of gives you an idea of how long it's been since they've actually updated but -- so I guess the point is is that in order to protect the student and the employer as well as the school, or
OVR in terms of the Fair Labor Standards Act, you really need to have this documented in the appropriate plan, whether it's the IEP for education or IPE. So that relationship in terms of it being a
necessary community-based work experience or training experience or internship, has to be clearly documented in the IEP or IPE.
PATRICIA VASCO: Number four, each participant in a community-based rehabilitation organization program must have an Individual Plan for Employment or IPE which includes a statement and that's
supposed to be -- oh, we caught that yesterday, of needed transition services established for exploration, assessment, or training components.
DANA BACCANTI: Okay. And again, this is, you know, there has to be a clear need for these services based upon the individualized need of the youth or young adult with a disability. So that they're not
going to be able to explore these areas of employment or these types of jobs in other -- any other capacity based upon the availability or services within the traditional educational environment or
based upon the nature of their strengths and limitation. So -- and the other issue in terms of training, we -- you have to be able to designate in the IPE that the training that they're going to
receive is going to best meet their needs, that it's going to enhance their opportunities for employment, and that they wouldn't necessarily be successful in other types of training environment or
PATRICIA VASCO: Number five, documentation will be provided to the Wage and Hour Division upon request that reflects that the individual is enrolled in the community-based placement program, that
the enrollment is voluntary and that there is no expectation of remuneration. However, the information contained in the IEP or IPE does not have to be disclosed to them. The individual with a
disability and, when appropriate, the parent or guardian of each individual must be fully informed of the IEP or IPE and of the community-based placement component of the plan.
DANA BACCANTI: Okay. And this again, is just to say that, you know, that student and their families are making informed choices that they are provided with options an that they are fully informed
about the purpose of the community-based employment that the expectations of the community-based employment -- I shouldn't say employment, I'm sorry. I misspoke. The community-based work experience,
the community-based training experience, what have you because there -- that they have clear expectations of what it is and what the goals of the community-based work experience are then there's
going to be less question about whether or not they're performing work that is benefiting the employer or work that should be compensated. So...
PATRICIA VASCO: Okay. The activities of the individuals with disabilities at the community-based placement site do not result in immediate advantage to the business. Now, the factors that would
indicate the business is advantaged by the activities of the individual include: displacement of a regular employee, vacant positions that have been filled with participants rather than regular
employees, the regular employees have been relieved of assigned duties and that the participants are performing services that, although, not ordinarily performed by an employee, clearly are of
benefit to the business. So participants are under continued and direct supervision of employees of the business rather than representatives of the rehab facility or school. Placements that -- this
is what the Wage and Hour Division would be looking for. They would not want to see them under the supervision of the employees of the business because we now have our business relationship and
placements are made to accommodate the labor needs of the business rather than according to the requirements of the individual's IEP or IPE. And lastly, the IEP or IPE does not specifically limit the
time spent by the participant at any one site, or in any clearly distinguishable job classification.
DANA BACCANTI: Okay. So for example, I'm aware that there are school to work program throughout the commonwealth that may have a specific relationship with the local employer where they have their
students go in there on a regular basis to perform, perhaps, it's environmental services or food service type of job or maybe it's even clerical types of duties, and they may only be performing work
in one area and they do this throughout the entire year and I'm not going to argue the benefit of it to anybody but if they are performing that work at the same location and performing the same duty
for the same period of time, that could be in violation of the federal or the Fair Labor Standards Act, okay?
PATRICIA VASCO: Okay. Number six, and I believe this one is a bit lengthy. While the existence of an employment relationship will not be determined exclusively on the basis of the number of hours
spent in each activity, as a general rule, an employment relationship is presumed not to exist when each of the three components does not exceed the following limitations. Where did it go?
DANA BACCANTI: Sorry. There.
PATRICIA VASCO: Okay. And the three are -- as soon as they're for vocational explorations, five hours per job experienced, for a vocational assessment, ninety hours per hour experienced, vocational
training, one hundred and twenty hours per job experienced. In the case of students, these limitations apply during any one school year.
DANA BACCANTI: Okay. And just again, you know, when we talk about vocational exploration, there might be job shadowing. Vocational assessment may be a community-based work assessment in OVR terms and
vocational training would possibly be like a four week if you will training experience if it's going to be broken out over a longer period of time, obviously, you know, fewer hours per week over a
longer period of time if it's possible.
PATRICIA VASCO: Number seven, the individuals are not entitled to employment at the business at the conclusion of the IEP or IP -- or -- excuse me, IPE. However, if an individual becomes an
employee, he or she cannot be considered a trainee at that particular community-based placement unless in a different, clearly distinguishable occupation.
DANA BACCANTI: Okay. So for example, they cannot be hired at a lesser wage as a training wage if they've already been trained in the position for which they're being hired even if that training
occurred during a community-based work experience or an unpaid work experience or an internship, they would have to been be hired at the normal wage for the position for which they were already
PATRICIA VASCO: So an employment relationship will exist unless all of the criteria described in FOH 64c08(c) are met. If an employment relationship is found to exit, the employer will be held
responsible for full compliance with the FLSA. Business and rehabilitation organizations may, at any time, consider participants to be employees and pay them the full minimum wage required by section
6(a) or the SCA.
DANA BACCANTI: Okay. And so basically, what we want to say is that, you know, if you're paying attention, if you are in charged of setting up community-based work experiences, internships, school to
work training program for your school or agency. Those seven criteria that we just reviewed are really, really essential for you to consider and that you really want to -- I mean that's for you to
consider in protection of the student, in protection of the employer and in protection of your agency, your employer as the representative.
PATRICIA VASCO: Okay. Properly certified employers may also pay Sub Minimum Wages to participants who are disabled for the work being performed.
DANA BACCANTI: [inaudible]
PATRICIA VASCO: Employees under age 20 may be paid the Youth Opportunity Wage as provided by section 6(g) of the FLSA rather than the Sub Minimum Wage. The Youth Opportunity Wage may never be the
prevailing wage upon which a commensurate wage is based and I put the link to the Wage and Hour Division and I don't know why it didn't come out highlighted, but it didn't.
DANA BACCANTI: Okay. Few things that I want to mention here when we talk about properly certified employers, they're really referencing community rehab programs that have sheltered employment
programs, okay? So agencies like Goodwill Industries, I'm trying to think of the occupational development center in Lancaster. I'm just pulling some names, Venango Training and Development Center up
in the northeast. Those all have to have certification through the Federal Department of Labor in order to provide Sub Minimum Wages for their workers with disabilities. The other thing that -- when
we talk about prevailing wage, they're talking about prevailing wages for specific occupations. So, in the construction field for certain contracts, there a prevailing wage if the contract is over a
certain amount and so they can't pay students the same wages that they would pay other contracted workers. They have to pay them based upon that Youth Opportunity Wage.
MICHAEL STOEHR: Dana and Patty, before you go on, we did have a couple of questions come in, I don't know if you want to take this now or if you want to wait.
DANA BACCANTI: We can take them now.
MICHAEL STOEHR: Okay. The question that came in about the fact that it might be about the fact that it might be beneficial to highlight that students do not yet have to be connected or in VR Services
in order to engage in this employment activities.
DANA BACCANTI: Absolutely. And that's one of the things -- I apologize, I think in our work, you know, certainly, we want things to be engaged with VR Services as early as possible and we all
recognize that there are limitations to that, but I certainly think that when VR and education are working together to support the students transitioning, that the IEP and IPE are going to align
themselves with one another and that the VR Counselor can certainly even, you know, help direct maybe some of those community-based work experiences. The VR Counselor, he's a liaison to your school
district even if the case -- you don't have an open case on a student, you can certainly talk with them about ideas for community-based work experiences and talk on how to best accomplish that. And
how we can, as an agency, a local partner, collaborate with you to develop more of them. So, you're absolutely right. A person does not have to have an open case with VR in order to pursue
community-based work experience for that to be in an IEP.
MICHAEL STOEHR: Great. And another question came in and it was concerning the IEP versus the IPE, and it was asking if there was any alignment between the two. In the education system a number of
school districts use the program called IEP Writer, but, I guess, I just need to make the point that they are two separate documents. The IEP is something generated through the education system as a
requirement under IDA. The individual plan for employment is something under the VR System and they are two separate documents, and while information could be referenced between the two, they are two
separate entities and they're completed separately.
PATRICIA VASCO: Absolutely. And, I guess, the one thing that I want to emphasize is that, you know, those documents are really should refresh the communication and the collaboration that happed
between the IEP coordinator, the transition coordinator, the student, the family, OVR and any other IEP team member who's going to be supporting that individual. So, basically they should complement
one another in order to support that individual and, you know, they're formed. They're not necessarily going to request every little detail that has been discussed or developed on behalf of that in
-- but they should be -- they should be specific so that it's very clear what services are being provided, what supports are going to be needed, who's responsible for making sure that those services
of supports are implemented and as you can see, I mean, that's going to a requirement if there were questions about a community-based placement that detail is going to be required in the IEP, the
document, why this particular service is being provided to that individual, so.
MICHAEL STOEHR: Right. And a question came in concerning a student at a job site and doing that same task opposed to switching tasks and that qualifying at -- you know, it benefits to the employer.
So, I don't know if you can explain that a little bit more.
PATRICIA VASCO: I think we're going to touch on that a little bit later Michael, so, I think...
MICHAEL STOEHR: And I -- I want you to just hold that because I do think you cover that if...
PATRICIA VASCO: Yeah.
MICHAEL STOEHR: And actually let me just see real quickly if there's anything else that you were not going to be. Okay. Question came in regarding the seven criteria you have mentioned and the
question is what if a non paid student is under direct supervision of an employee 70% of the time and a job coach from the rehab agent see as their 30% of the time. I'm not sure what that's asking
DANA BACCANTI: Well, I think--I think it depends upon a couple of things. I think that if this is going to be a placement upon graduation and I'll be the first to acknowledge that OVR is often helpful
that students who are receiving job training or job coaching if you will while they're still in school that it will lead to a permanent placement and I think at that point like that one caveat about
when they're hired they can't be considered a trainee, you know, if they're being trained as part of the school to work program and they're not giving paid but if it's meant as a transitional
employment program if you will that once they graduate in the IEP it concludes and they're working there. If they're getting paid regular wages that they're getting paid -- that they're not -- no
longer considered a trainee if you will. So, I think in that situation as long as they are still receiving support and they're still receiving direction from the job coach at least, you know, a -- I
want to say significant. I -- you know, to me that sounds like an acceptable situation, but I think if you have a question about it that you should be contacting the Wage and Hour Division.
MICHAEL STOEHR: Right. And then there's been a number of questions about IEP versus IPE and, I guess, just a couple of things. The IPE is something that the VR Counselors through OVR would be
completing with that. The IEP is the educational document. And depending on how and what is written into the IEP, if a district writes in that each student is going to be receiving job exploration
services and that's recommend then the school would be the responsible entities who supervise that program because that's something the school is provided. The IEP is something that's going to effect
while that student is in school. The IEP is something that is really -- and Dana, correct me if I'm wrong, but you're really looking at that as the document as the student is making right transition
into adulthood. Is that...
DANA BACCANTI: Right. And -- yeah. The IEP will outline services that the location of the rehabilitation program is going to provide to that individual and so they achieve their vocational objective
for the employment outcomes. You know, sometimes that IEP may cover a period of six months that services are provided and the person is employed and has achieved their employment outcome. For others
it may be, you know, an IEP may last several years. We do annual reviews -- I'm sorry. IPE, Patty placed -- the IPE, the Individualized Plan for Employment can be written and it can be in placed for
several years. We do an annual review of the IPE every year on the anniversary of its implementation. The IPE can be amended if necessarily, if the need for services or the vocational objective
changes. So, basically as long as the eligible individual is engaged in VR Services they will have an Individualized Plan for Employment in place.
MICHAEL STOEHR: Correct. So, I mean, while a student is school age and I know this kind of outlined in your new policy that OVR put together. The school district, the school entity is really
responsible for those services and supports up through school age eligibility up to age 21. At that point, you know, you really look at that student becoming an adult when once they graduate school
either at 18, 19, 20, 21 at which point the IPE or the Individual Plan for Employment would kind of take over. I think the other difference to mention here in the IEP is under IDA law which is an
entitlement type of benefit or a document where the IPE is based on eligibility, and eligibility criteria is through the OVR System.
DANA BACCANTI: Correct.
MICHAEL STOEHR: Okay. I'm going to let you get back to the slides and we'll take a break in a few more minutes to kind of see if there are other questions.
DANA BACCANTI: Okay.
MICHAEL STOEHR: Thanks.
DANA BACCANTI: Okay. The next topic is the Federal Child Labor Rules. The child -- the Federal Child Labor Provisions were enacted to ensure that when young people work, the work is safe, positive,
and complements the educational process. These rules can serve as a platform from which young workers can explore, not entirely free from risk, the world of work. Federal Child Labor Provisions do
not require minors to obtain work permits. They do not limit hours or restrict time worked for minors 16 years of age or older and they do not require breaks or meal periods for minors.
PATRICIA VASCO: Okay. And so, I guess, that's one thing that I really, really want to emphasize here that when you were talking about an unpaid community-based work experience where there is no
employee relationship. You are not required to obtain a work permit for the students, okay? So, that's -- I just want -- because we had several questions come to OVR about, "Well, do I have to have a
work permit for this student or what have you?" Now, not that giving a work permit is all that difficult. I believe it requires a statement from the student's parents or guardian and a statement from
the, I guess, the employer or the placement site that these are going to be the hours that they are going to be involved in something but by giving a work permit, you're actually insinuating then
that they're performing paid work, okay? So, to make it clear, students under -- regardless of age, if they are participating in a school supervised community-based work experience they are not
required to have a work permit.
DANA BACCANTI: Okay. We are ready for that next one then, Patty?
DANA BACCANTI: Okay. Okay. Now, we do have some limitations on hours that 14 and 15 year-olds may work and the Federal Child Law says no more than three hours on a school day including Fridays. The
PATRICIA VASCO: Yes.
Pennsylvania the Child Labor Law says four hours. I'm under the impression that the Fed should maintain the privilege over this and I have a question into legal about the discrepancy with these
hours. Also, 14 and 15 year-olds may know -- may not work more than 18 hours during a week when school is in session. They may not work more than eight hours on a non-school day. They can work eight
additional hours on Saturday and or Sunday. That's in the Pennsylvania Child Labor Law, and on more than 40 hours during a week when school is not in session. There are also limitations on the times
that a 14 and 15-year-old may work, and it's between 7:00 AM and 7:00 PM or between 7:00 AM and 9:00 PM from June 1st through Labor Day and outside of school hours. We have jobs that 14 and
15-year-olds may do, cashiering and selling, price marking, assembling orders, packing, office and clerical work, bagging groceries, and hand washing cars. They also tell us what -- the students can
do in the retail -- retailing service jobs. So, they can work -- perform work of an intellectual or artistically creative nature. They can cook with an electric or gas grills that does not entail
cooking over an open flame. They can work as a lifeguard or swimming instructor at a swimming pool if at least 15 years of age and properly certified. And additional information, there's -- as part
of dol.gov, there's a section called Youth Rules. I found it extremely helpful and informative and that's why I want it to put this in here because they go through a -- great deal more of detail for
14 and 15 year-olds than I did. Now 14 and 15-year-olds may not work in operations that involve manufacturing and mining, the operation of power-driven equipment, transportation and communications
exceptions are for office work, warehousing and storage, and those most processing occupations, and construction.
PATRICIA VASCO: Okay. So, I guess, the point here is that, you know, that 14 and 15-year-old can have community-based work experiences and placements, but you do have to be mindful of the areas in
which they can -- they can participate in this community-based work experiences and then it have more to do with [inaudible] than anything else. So, I think -- as you will see as we move on in terms
of the age ranges that it progresses in terms of the risk involved in the different occupations that folks are allowed to perform as they get older.
DANA BACCANTI: All right. Pennsylvania Wage and Hour Regulations, the Child Labor Law. So, this is for hours of employment ages 16 and 17. During the school term they can work a maximum of 28 hours
per school week, that's Monday through Friday if enrolled in a regular day school. They can work eight additional hours on Saturday and eight additional hours on Sunday. The maximum daily hours
cannot exceed eight hours per day. During summer vacation, they can work a maximum of eight hours a day, 44 hours per week. Night work during the school terms, students may not work after midnights
Sunday through Thursday or before 6:00 AM during the entire week. The exception is that students may work the night preceding a school holiday occurring during the school year until 1:00 AM the next
morning. So, they may work Fridays and Saturday nights until 1:00 AM Saturday and Sunday morning.
PATRICIA VASCO: I think again -- it's important to not that while many of the community-based work experiences that you may be developing are going to take place during normal school hours, but I
think that in -- when you're working with students who maybe engaged in part time work experiences, part time paid work experiences, you want to keep those in mind as well and just forgotten.
DANA BACCANTI: Okay. So, we have no night work during summer vacations, no night work when -- okay. Night work during summer vacation -- get a hang of myself. There's no night work limits for students
and no night work limit at any time for minors legally excused from school attendance. Are there -- Michael, maybe we can ask if there are any questions regarding the ages or limitations?
MICHAEL STOEHR: There weren't questions about that. However, there were a couple that came in. One is, who's -- questioning about the criteria that the work is not beneficial to the employer. How can
any work not be beneficial to the employer, but I think it's more of a question of that young person displacing another employee that it is -- that was more of the issue and I hope you can elaborate
DANA BACCANTI: Well, I think in certain instances, you know, depending upon the work that needs to be performed, depending upon the ability of the individual being trained and certainly depending upon
the process involved in that place of employment, it may actually cause detriment to the employer at least initially to provide that training opportunity in terms of training the job trainer on what
needs to be done and, you know, orienting the students and the job coach and job trainer. Certainly, there may come a point where the individual is performing at a pace or at a level that is
proficient and therefore becomes a benefit to the employer. I think then you have to look at increasing that person's responsibilities, giving them opportunities for additional training on additional
skills. We need to look at maybe switching positions within the company or you need to look at possibly placing that individual -- have another place of it -- another community-base work experience.
Maybe it's the same type of job, maybe the duties and -- at that place of employment or a little bit different and you look at job transferability of skill, you know, have the students perform the
works that they work performing proficiently in this environment. Can they transfer it into another work environment with different people with possibly different materials or different
circumstances? So I think that there are some options. I think when it clearly is a benefit to the employer and there's no plan to increase the benefit to the student, that's when you run into a
problem. When you expected a status quo, that's when it becomes an issue. Patty, do you have anything to add to it?
MICHAEL STOEHR: Right. And I think the other thing too is when that student is displacing a worker at that site.
PATRICIA VASCO: Right.
MICHAEL STOEHR: You know, they are -- they are doing the actual job and there is another employee doing that. That then creates an employee-employer relationship. So, I think that's the other thing to
make sure that folks are not doing.
PATRICIA VASCO: Right.
MICHAEL STOEHR: A question came in about what constitutes a regular day school, to cyber school -- to cyber charter schools, are they included. And I think the answer to that would be yes. All LEAs
are what we're talking about here. They are under these same regulations.
PATRICIA VASCO: Right. And I think when they're talking about like -- I mean when they talk about legally excused from work or what have you, I mean if a student is involved in a cooperative work
program through their school, that clearly -- they're working for a wage and that's where they may be, you know, those wage log apply when the person is clearly working as an employee.
MICHAEL STOEHR: Right.
PATRICIA VASCO: What we're talking about here, you know, you definitely want to keep that in mind in terms of this--in this case, they're not actually working for a wage. You know, so you just want
to -- I don't know how to make that when you work there.
MICHAEL STOEHR: Right. And a question kind of related to this is asking, if a student -- the family or the school or the IEP team feel that the student is ready to transition to community-based
experience or work experiences, will that student need to be supervised? And I guess by that question, if it's part of the IEP, yes. I mean that's part of the relationship within that. If however
that young person is of age and can work without supervision, then in my mind, that would just constitute any other student young adult going out for employment. They wouldn't necessarily...
PATRICIA VASCO: Right.
MICHAEL STOEHR: ...have somebody with them. However, if it's in the IEP and it's part of the work experience program, yes, they would.
DANA BACCANTI: Yeah. Absolutely. And that's the thing, I mean, that's clearly one of the criteria in terms of it not being considered an employer-employee relationship is that there is supervision
involved there. If that supervision does not exist, then it's clear that they are -- they are working, if you will, as an employee...
DANA BACCANTI: ...and employer.
MICHAEL STOEHR: Correct.
MICHAEL STOEHR: A question came in regarding a program run through one of the IUs, it's a community work program where the student participates for anywhere between five and twenty-five hours a week.
They receive a stipend of five dollars. Is that appropriate or legal? In addition, the student may be at the same site, completing the same work for the entire school year and at times maybe at the
same site for more than one year. Is that appropriate? How would you document that? And I know this had come up a few year back and really that -- by the sound of this description, that young person
is employed by the IU or that school district in which case what ended up happening in a similar situation, the IU got themselves into trouble because what the department of labor looked at that as
is that young person was employed by, you know, that school district or that intermediate unit because that is a job. So, I think you really need to be careful when looking at that. And what Dana and
Patty had been talking about making sure that that young person is meeting that criteria for a work experience opposed to being employed and working on-the-job site.
DANA BACCANTI: Let me -- let me interject here, Michael. You know, there is clear research that says paid work experiences for students with disabilities who are transitioning from school to work are
probably the best indicators of positive employment outcomes for those youth. And so we recognize that paid work experiences whether it's at subminimum wage or if the stipend or whatever it is that
has -- that that's a positive indicator of good outcome. Sorry. I'm getting a little tongue tied. However, the labor laws and -- have not caught up with that yet and that's certainly something that
we as, you know, state-wide representatives of our organization who have the opportunity to talk with the feds about that we need to see how he makes that happen. You know, certainly paid work
experiences, you know, will have to follow some of those laws that in terms of how we make that happen, in terms of liability for the employer versus the school, you know, all of those little caveat
that always seem to cause the problems or the concerns with paid work experiences for students with disabilities, those things need to be worked out.
MICHAEL STOEHR: And what some of the districts have done it and I know one of the districts that it does a Start on Success program. The students actually become employees of the school district as
they're involved in these programs. So, they are hired, they kind of fit under those same guidelines. That also helps when they look at some of the coverage regarding, you know, on the job insurance
and so forth. So, that's just something that's out there. But again, I think what you and Patty have been talking about that really is what constitutes some of these work experience programs that
you've been discussing.
PATRICIA VASCO: So let's keep moving on because I think some of the things that we're talking about now, we touch up on later in the presentation and I think we still have a few more slides to go
and some of it, you will find, is going to be repetitive, but we want to -- it emphasizes the importance of some of the things that we've been talking about.
MICHAEL STOEHR: Right. Okay. I'll let you get back to it and we'll break again in a few minutes for additional questions. Thanks, Patty.
PATRICIA VASCO: Okay.
DANA BACCANTI: Okay. As I did my research, I came upon trying -- how one would differ an employee from a trainee, differentiate I guess. And I have this wonderful definition for employee. It means to
suffer or permit to work. I got a chuckle out of that. That's a direct quote, so I don't know how we kind of put together suffering and permit -- and being permitted to work, but that's their
statement. Also, the determination depends on actual facts, not just words or titles. If you give a kid a title when it comes to work well, you know, maybe you've given the student a special title
just so he knows and the other employees know who it is. But if they're getting an actual job title given to them, assigned to them, then it's more than trainee. And also, it does not depend on a
wage payment which we will go into shortly. So, FLSA has six criteria for a trainee which will be on the next slide, but it's found in the Employment Relationship booklet WH-1297, pages 4 and 5, and
that's based on 80 years of court history. So if you want information on that, you can get that from the Wage and Hour Division. Okay. The six criteria for a trainee. Training is similar to that
given in a vocational school. The training is for the benefit of the trainee. The trainee does not displace regular employees, works under close supervision. The employer derives no immediate
advantage and his operations may actually be impeded. This with that Dana was discussing a few minutes ago. And the trainee is not entitled to a job as a conclusion of the training. That doesn't mean
a job cannot be offered, but the trainee goes in with the expectation that they are not entitled to a job. And the employee and the trainee both understand that there no entitlement to wages for the
DANA BACCANTI: This is kind of -- and I'm going to use project search as the example of where a student is considered a trainee. And so -- or an intern, and that they're given a title of project
search intern at most project search sites, you know, they're receiving training that is actually similar to what they would receive in an on-the-job training contract or some technical training that
they might receive in a certificate program in a lot of cases. The benefit is really for them. It's not for the employer's side, that they're not there in place of any other regular employees. There
really isn't an advantage to the employer other than sometimes the culture of the employer changes as a result of project search folks being there, but there's no necessarily financial advantage or
value added in terms of cost benefit. And then, you know, project search interns are not guaranteed a position of employment. Certainly we hope that they will gain skills that would make them
appealing to the employer. Thank you, Patty. And in those cases when they are hired, they're hired as regular employees. They're not hired as trainees. And so they are not receiving wages during
their internships, so.
PATRICIA VASCO: Of the six criteria that must be met for a trainee, meaning no wage is required, the criteria requiring that there is no immediate advantage to the employer causes the most problems
when placing students in a workplace. We've heard that from your questions. We've gone through the criteria and I don't think there's anyone that's going to disagree that this is the one that is the
sticky wicket. Now a student can start off as a trainee where no productive work is done, for example working hand over hand or just observation, but often can cross over to the point where the
student has learned the task and begins doing productive work. Then an employment relationship exists and all applicable FLSA provisions must be complied with. Those would be the wages, the youth
employment rules, et cetera.
DANA BACCANTI: And that's where, you know, truly the supervision by the school personnel, by the job trainer, or what have you, is key, you know, one, if a -- if a students has mastered those skills,
why wouldn't you want them to obtain additional skills? And again, if it's an issue of it's benefiting the employer, then maybe you have to be innovative and creative about opportunities in training
that it could -- Patty just -- she totally distracted me. So one of the things we look at is changing the job task, look for -- look for additional skill acquisition, look for another position, look
at another employer, looking at are they able to transfer the skills that they have so proficiently acquired at this place training or work experience, can they transfer it to another one, and, you
know, those types of things. And so I guess, you know, if anybody has any other suggestions on what they have done in the past or concerns that they have about it, that would be -- we can stop here,
Michael, for some additional questions or discussions.
MICHAEL STOEHR: Okay. And this is going back a little bit in the presentation, but there was still a question about the difference between an Individualized Plan for Employment and an IEP and I guess
just to reiterate again, a student while they are still connected to the LEA or the school district, has an IEP. The Individualized Plan for Employment or the IPE is normally something that is
written and developed as that student is exiting high school and I'm going to say usually in the second semester, their senior year, maybe developed and then looked at once the student exits the
school. The IEP is really that plan that carries that kid up through graduation from high school, and hopefully that's making that clear. And Dana, I don't know if you or Patty want to add anything
DANA BACCANTI: I just -- you know, depending upon when a student engages in VR services and when they're determined illegible for services, you know, understanding that different students have
different needs as they go through the transition process, that we may accept an application for services from a student who's 16 years of age and determine them to be illegible for services and
develop an IPE a year and half to two years before they graduate from high school. In that case, they would have both an IEP that outlines the services that they're receiving while they're in school
from the education agency and they can also be -- have an IPE which outlines the services which are typically no cost services at that point that the VR agency is going to provide. So it may be an
Individualized Plan for Employment that says that OVR is going to provide vocational counseling and guidance to this individual in order to help them determine a vocational objective.
MICHAEL STOEHR: Right.
DANA BACCANTI: Okay? Maybe that OVR is going to support them in their community-based work experience that is being provided by the school and paid for by the school in order to help them achieve a
MICHAEL STOEHR: Right. Right. Yeah. So it think that -- I guess the bottom line is the IEP itself would be covering the work experience and placement, so the things that the school would be
responsible for. But you're right. And I do think in some cases you do have student engaging with OVR earlier. A question came in. OVR -- can OVR provide services -- let's see. OVR can provide
services up to two years prior to graduation. Well -- and again Dana, I think you were talking about those. Those are support services for a young adult while they're still in high school?
DANA BACCANTI: Yeah. Typically, you know, we're -- if we're doing transition correctly, and when I say we're, meaning the school, OVR, we're working together to support the same individual and their
transition from school to work, you know, OVR is providing technical assistance, vocational counseling and guidance, and resources to both the student, their family, as well as the education system
to help them develop an IEP that's going to support that student's post secondary outcome. Okay? So we're going to be doing a lot of vocational counseling and guidance, consultation, providing
resources, information to the student and the family and the teachers to support that student. And then once that student has graduated, okay, all along we're working together to say, "Okay. These
are the services that they're going to receive while they're still in school." We're then going to say, "These are the services they're going to need once they graduate and let's get those in place."
And that's where the IPE, the Individualized Plan for Employment becomes key and that's where we outline the services that are provided after the student graduates and leaves the educational system,
leave that system of entitlement.
MICHAEL STOEHR: And I think the services -- and I guess just to let folks know, I mean, the rehab counselors that work for OVR or vocational rehab counselors that work on helping individuals with
planning and securing employment, and that's really what they're trained for. So when you look at -- a question came in. Why would someone engage with VR while the student was still in school? It
really would be to help support in looking at that student, those options, what's available to them. That would be kind of the collaboration between VR and the school while that student was still
receiving services through the school system.
DANA BACCANTI: Yeah. I mean, Michael, I guess rather than -- if people have a real question about like the transition from IEP to IPE or how that all happened, I feel like we're getting a little off
track with this. I'd rather stay focused on the labor laws and then we can -- that person, we can give them our contact information and we can talk about that.
MICHAEL STOEHR: Right. Okay. Let me just look. A question came up about the guidelines for hours of employment during the school year. Do those same guidelines apply to students who attend summer
school? So the student is not currently -- like, so it is summer, they're attending summer school class. Do they still have to work off of those school year hour -- labor law hour guidelines?
DANA BACCANTI: I don't know the answer to that question definitively. I would say depending upon the hours of the summer school program. I know sometimes there are, you know, the student may go like a
regular six hours school day for two or three weeks and sometimes there are, you know, shorter school days or, you know, there are only two days a week. You know, I think it would depend upon the
nature of the summer school program. Yeah, that would be a question that I would -- I would send to the Wage and Hour Division.
MICHAEL STOEHR: Yeah. I agree. I'm not sure how that would fit because usually those summer school programs are -- they run the same as a school day, they're limited in how many weeks there off or
it's -- I agree. I'm not sure how that would fit.
DANA BACCANTI: Yeah.
MICHAEL STOEHR: Okay. I think that is it for right now. So back to you guys.
PATRICIA VASCO: Okay. So now we're focusing on student as a volunteer or as an employee and how to tell the difference. So basically we're going to define a volunteer. These are individuals who
volunteer or donate their services for public service, religious, or humanitarian objectives. They're donating their services not as an employee and they do not have any contemplation of pay. So they
are not considered as employees of the religious, charitable, and similar nonprofit corporations which receive their services.
DANA BACCANTI: Okay. You know what, and first of all, I guess we want to point out that we certainly do not discount the value of volunteer work for anybody. I mean I think it is a -- as a civic, you
know, activity and the benefit a person gets from volunteering their time and services that go beyond the work experience or I should say the experience that you have developing skills. So we don't
want to discount it, but I think that we need to be cautious about having students with disabilities volunteer their time and services beyond what any other youth would volunteer their time and
PATRICIA VASCO: Okay. Students may not volunteer to perform services or which they are employed to perform. Generally, students may not volunteer for a for-profit firm. And once again, referring
into the booklet, Employment Relationship, and pages six and seven for more Hour Division -- for more information. I'm reading ahead of myself. The Wage and Hour Division has extra concerns for
students with disabilities and we will go into them very shortly. There's a question of joint employment. Joint employment is possible between the school and a community employer where both have
employer roles such as day to say supervision with a job coach or wage payment. Once again, this is explored and explained in the Employment Relationship booklet. So the important part to this is
that both employers may be liable for any wage requirements that apply.
DANA BACCANTI: Okay. I think, you know, we wanted to talk about, you know, there are some programs out there where folks have received a grant to have paid work experiences and so forth. And I think
that, you know, you have to look at whoever is paying the wage or a paid work experience whether it's for the purpose of training a student, it's for the purpose of just giving that person a work
experience to develop soft skills, whatever the purpose is, whoever is paying that wage assumes the liability for that individual, okay?
PATRICIA VASCO: Okay. Okay. And discuss employment relationship for students with disabilities and who are in special ed. There is a special statement of principles, which we're going to go into
shortly, that was issued jointly by the US Department of Education and the US Department of Labor. It provides guidance regarding vocational exploration, assessment, or training for youth and young
adults with disabilities. And once again, we're going to go over -- there are seven conditions that must be met for there be no employment relationship. Number one, the participants in the program
are individuals with disabilities for whom competitive employment at or above the minimum wage is not immediately attainable and who, because of their disability, will need intensive ongoing support
to perform in a work setting. The student's participation is for vocational exploration, assessment, or training in a community-based worksite under the general supervision of public school
personnel. Community-based placements must be clearly defined components of the individual rehabilitation programs developed and designed for the benefit of each student. So each student must have an
IEP. Documentation will be provided to the Wage and Hour Division upon request that the individual is enrolled in the community-based placement program. That this enrollment is voluntary and that
there is no expectation of getting paid. So the activities of the participants at the community-based placements do not result in an immediate advantage to the employer. So we have factors which
indicate immediate advantage and these are displacement of regular employees, vacant positions filled with participants, regular employees relieved of assigned duties, participants performing
services that are clearly a benefit to the employer, participants are under the supervision of employees of the business rather than the school, and placements made to accomplish -- oh, accommodate
the business's labor needs rather than the requirements of the IEP, and the IEP does not limit time at one site or job. So while the existence of an employment relationship is not determined
exclusively on the number of hours spent in each activity, as a general rule, an employment relationship is presumed not to exist when each of the following three components does not exceed the
following limitations. And we go right back to the hours that we talked about before. Vocational exploration five hours, assessment ninety, training one hundred and twenty, and this is per job
experienced. So the student wants to go into -- have another job, they can do this, but you can exceed these hours in the school year which might be coming up again. Okay. The last of the statement
of principles is that individuals are not entitled to employment at the conclusion of the program. However, if the individual does become an employee, he or she cannot be considered a trainee at that
particular community-based placement unless it is in a different, clearly distinguishable occupation. So once a student with a disability crosses over into the -- an employment relationship, like any
student, all applicable FLSA provisions must be complied with, the wages, the youth employment rules, et cetera. All seven criteria must be met in order for a student to be a trainee, not an
employee. And there's a cautionary note, that you should not just take the hour limits and ignore the other criteria, because this is how employers and schools, and they just -- they get burned on
this and they get fined. So now we get into the district and school sponsored work experience. An essential part of transition planning is to provide soft skills training needed to attain and
maintain employment especially with youth with -- especially for youth with disabilities. Dana's tongue twister is bouncing over to me. So IDEIA 2004 mandates that all students with IEPs have
appropriate transition planning that prepares them for post secondary education, vocational education, and integrated employment. Now we have unpaid work experiences. This is also used as an
educational tool and an opportunity for certain youth with IEPs to learn employment and career skills that will enhance their employability. An unpaid work experience is a special education only
mechanism to provide multi-sensory learning in real world context. The essential component is that the work experience is supported by school personnel.
DANA BACCANTI: Okay. So that just kind of gets back to the point that if we're truly considering this, an unpaid work experience that is going to provide the student with the opportunity to develop
soft skills that they're going to need and opportunity to explore the world of work and to develop some skill acquisition, but that should really develop the interpersonal skills, the time management
skills, organizational skills, self-advocacy skills, transportation skills, all of those things that part of that is -- that is going to be supervised by school personnel, okay? Because if it's not,
then why would they -- why would we even consider this an unpaid work experience? Why would we need to have a community-based work experience as it's been defined by IDEIA or the Rehabilitation Act.
And that's a rhetorical question.
PATRICIA VASCO: Okay. So the unpaid work experience is only available to special education students whose disability presents a significant barrier to immediate competitive employment. The IEP team
must establish parameters and needs presented by the barrier. The goal is to address the barrier and assist the youth by exposing them to employment development skills and community-based learning.
So an unpaid work experience requires authorization. Once again, we go over the 7 criteria that must be documented in order for the youth to participate in an unpaid work experience. Oops, sorry.
Competitive employment at minimum wage is not available to the youth because of the disability. The need for an unpaid work experience must be clearly indicated in the IEP that's the responsibility
of the schools. Enrollment in the experience is voluntary with no expectation of employment. The work performed does not provide an immediate advantage to the employer, nor does it displace any
regular employee. The experience is for vocational exploration, assessment and training purposes only. Once again, we have the work hours volunteer exploration for five assessments. 90 vocational
training does not exceed 120 hours then we do not have the employer-employee relationship. And the youth and family must understand that the youth is not entitled to a paid position at the end of the
DANA BACCANTI: And I guess I just want to say that that's where it becomes paramount for the school personnel like in terms of making sure that it doesn't become a benefit to the employer, looking at
new skill acquisition, looking at how it's benefiting the students not necessarily the employer to continue that community-based unpaid work experience. So, I think that that -- and in having that
conversation with the parents in terms of "Yeah, your kids' not getting paid right now, but they're gaining skills, they're gaining valuable experiences that will help them to become a paid employee
upon graduation or upon completion of this training experience." So, I think that's really something that needs to be communicated up front to the student and to the parent.
PATRICIA VASCO: Compensation for an unpaid work experience. The provision of money to a youth based upon the number of hours worked, tasks completed, or piecework finished constitutes a wage. Once
a youth is paid or otherwise compensated for the work performed, an employee/employer relationship is created and the FSLA is triggered.
DANA BACCANTI: Certainly. Yeah. ,
PATRICIA VASCO: [inaudible]. Volunteer Stipends. We have a definition of a volunteer is an individual who performs hours of service for religious, charitable or similar non-profit organization
without promise, expectation or receipt of a compensation. Now, we have conditions that define a volunteer. The entity that benefits from the service is a non-profit or government agency. The
activity is less than full time. The services are not offered as a result of coercion. The services are typically associated with volunteer work. No other employees or no regular employees have been
displaced by the volunteer and the volunteer does not expect to be compensated. Volunteer Stipends, the employer may inadvertently convert the employee -- the volunteer into an employee. So, we go
back to the Federal Department of Labor. If a volunteer is paid a stipend of over $500 a year or 20% more than what an employee would be paid, they must be treated as a paid employee. Now, this also
pertains for in-kind benefits as well which must be assigned a fair market value. And an example of this is if we have an employer who likes a student, and wants them or to volunteer, wants to take
them out to lunch or give them a meal or whatever, technically, that is an in-kind benefit unless they've been working in a cafeteria or for food service and every employee is permitted to have a
meal then the volunteer could have one and it won't be held against them as far as taxes and wages. So the Guide for Stipends are friends with the Federal Government would like -- once they make the
following recommendations, they have a proper accounting system in place. Volunteers who receive stipends must be treated the same as paid staff, and payroll deductions must be withheld. This also
applies to in-kind benefits which must be assigned a fair market value and reimbursements for expenses incurred while volunteering are also considered taxable income. If, for some reasons, the
volunteer is getting compensation for mileage or they purchase things for whatever program they're in and then they get reimbursed for those expenses. We're entering the gray area there and it could
be considered taxable income. Should someone decide to offer a stipend, never pay more than a nominal 20% of what an employer would pay for the same service. Do not offer benefits that other
employees receive and make it clear if a volunteer receives more than $500 a year in compensation, they will no longer be protected from liability claims by the Federal Volunteer Protection Act. Yes,
the federal government has many acts that I found out as I did this and here is yet another one, the Volunteer Protection Act.
DANA BACCANTI: Okay. So, at this point, I think, you know, we want to show you the -- a very exhaustive list -- no. I shouldn't say that. Here's a list of resources that you may want to look at in
terms of considering your unpaid work experiences, your community-based placement, your student internship opportunities, what have you, whether it's related to our project search site, whether it's
a school to work program that you have developed, you know, these are a lot of different resources for you to consider. And I guess, you know, we'll open it up to questions, Michael, at this point if
it -- other than questions between IEP and IPE, and when that happens, I'd rather have that individual contact Patty and I or you directly, so.
MICHAEL STOEHR: Right. And I think just even the questions about OVR and what constitutes working with students while they're still in school. I agree, Dana. I think all of those are kind of the same
questions that we could talk about more. There actually is information, too, on the secondarytransition.org website. It's pretty detailed about when VR Services started and what supports you provide
to students, so I think that's another resource folks could look at.
DANA BACCANTI: Absolutely.
MICHAEL STOEHR: Okay. We do have a couple of questions now. Hold on one second. Somebody had asked that their students volunteer at a poor profit nursing home however they go through their volunteer
department, are they okay in doing that?
DANA BACCANTI: You know, I think that you get into a slippery slope there and that's where maybe you want to contact the volunteer, contact the Wage and Hour Division and so forth. Again, I think that
you have to look at what the benefit to the student is, okay? And are there other opportunities for community-based work experiences that would be more appropriate. I say that with appreciation for
the fact that there are rural areas where community-based work experiences at, you know, where it's often as a training opportunity and so forth that are more formal work experiences are limited. I
do appreciate that but I think that you want to look at that volunteer experience for -- as an for-profit organization. The for-profit organization needs to be careful about what they do in terms of
accepting volunteer work and what activities they're doing. So if you're concerned that they're gaining substantial benefit from their volunteers. And in terms of not paying a wage to a person, yeah,
that -- I guess that's outside of the venue.
PATRICIA VASCO: The 7 criteria.
MICHAEL STOEHR: Right. I oppose by non-profit either nursing home or hospital, their volunteer department, I think that's a whole different ballgame.
DANA BACCANTI: Yeah.
DANA BACCANTI: Right. I just -- I think you -- I think you always have to -- when you're looking at this stuff and you have to look at it from the benefit of the student and in relationship to how
it's benefiting the employer.
DANA BACCANTI: Okay? And so putting the students' benefit first, are they under their IEP? Are they gaining maximum benefit in terms of progressing towards their post school outcomes if they can with
MICHAEL STOEHR: Right.
that experience. If the answer is no, then that experience may not be the thing that they should be pursuing that volunteer experience. Maybe there are other things that they can persist, you know,
MICHAEL STOEHR: Right. A question came in regarding, is there any through the education system, any mandate for students in high school volunteering or as part of the graduation project and really the
answer to that is no. However, each school district kind of takes on a different requirement that they look at instituting regarding their graduation projects and/or volunteering and some districts
do require their students as part of graduation to do community service types of activities. However, that's not a state mandate to do that. So I -- that question came in and just to let folks know.
I think it's a great idea. Now, the experiences are really good and the community service projects are great, but that's not really a requirement. Another question came in, is the trainee covered
under the liability the same as the volunteer? We get many questions from employers about liability when it comes to trainees.
DANA BACCANTI: I think that, again, it has to do with who's supervising, and really under the school district. I mean, the school assumes the responsibility for that student if it's a service that
they're providing under their IEP and really that the job trainers assume liability. Now, for the supervision so -- but when it comes to basic workplace safety, obviously, you know, if an -- a place
of employment, if there's an unsafe -- an unsafe condition or practices being performed, you know, they're assuming no liabilities for that for all of their employees. So I think that, you know, what
we're talking about is, you know, more the general safety and liability of that students and the activities that they are performing specifically and their safety. So for example, if a student --
there are no unsafe condition for example and the student performed something unsafely, then that -- the school district assumes the liability for that student. Does that make sense? Michael, am I
MICHAEL STOEHR: I think that does. That makes sense.
DANA BACCANTI: Okay.
MICHAEL STOEHR: And kind of almost related to that as a couple of questions have come in about schools using the school itself as an unpaid work environment. So, going out to the community that
student engage in activities within that school building.
DANA BACCANTI: Yeah, again, and that's where the school district has to look at whether or not they as an employer are gaining a benefit from that. So are they displacing other school districts didn't
fully -- or are they supplanting them by having this work performed and that's, again, that they would -- they would have to consider that.
MICHAEL STOEHR: Correct. And then a couple of questions came in and this is -- I can read you both of these, but they're talking about students working in a school setting. One example is doing
custodial activity. The other is working like packaging items for like school cafeteria. The students aren't necessarily displacing any workers, but a small stipend is given to the class as a whole
not as to the individual students.
DANA BACCANTI: You know, I -- this is where I would not say that I'm an expert on how, you know, I think that that could be something that could possibly get into a gray area. I, you know, again, I
think you have to look at the benefit as to, you know, community integration and really is that -- is that the best on service match and work experience that could be involved. I think we have to
look outside of what's convenient and...
MICHAEL STOEHR: Oh, yeah. Yeah.
DANA BACCANTI: ...for the school district. What's convenient for an employer and look at really what is the -- to the maximum benefit of the student?
MICHAEL STOEHR: Right. Okay. A question came in about a 14-year-old student volunteering at a daycare center, twice a week for four hours a week. Should that individual discuss possible wages with
DANA BACCANTI: I guess it depends, you know, I -- it's two hour -- two -- four hours a week, two hours a day, two times a week if I understand that, but...
MICHAEL STOEHR: That exactly right. That was good, Dana.
DANA BACCANTI: If there's an, I guess, questions asked and I don't have an answer for this -- I mean, is it a non-profit center? Is it affiliated with that student's, you know, religious organization?
You know, are they doing that for other reasons, other than skill acquisition and experience, you know, at -- the younger the person is, the -- I guess the more beneficial volunteer experiences are,
you know. I think in terms of -- and the more relevant it become to developing that person's vocational experiences and work experiences. Volunteerism seems more appropriate for a 14 and 15 year old
than it does for a 16, 17, 18 year old.
DANA BACCANTI: So at this point, I wouldn't necessarily say, yeah, you have to pursue a paid -- a wage for that individual because at this point, the number of hours and her age would not seem to
MICHAEL STOEHR: Right.
indicate that, but that's an opinion based upon my, I will say, limited knowledge.
MICHAEL STOEHR: Right.
PATRICIA VASCO: ...criteria.
DANA BACCANTI: Patty says follow the 7 criteria.
MICHAEL STOEHR: Right. No, I agree. I mean, I think that's why they're there in your outline which kind of leads to this question too if a non-paid student is becoming proficient or productive in a
task, but is still deficient in soft skills and it's benefiting from the current environment, that student still need to change jobs or tasks and I'm kind of referring back to that seven steps, if
they maxed out the total number of hours on that particular job, they would need to be hired or moved on I'm guessing, but I'm going to refer that back to you guys.
DANA BACCANTI: I guess, you know, it depends upon can -- I mean, it's remaining in that placement, is that going to impact the soft skill development significantly? Meaning like can they -- will they
not be able to acquire or further develop their soft skills in another placement? You know, certainly there may be certain situations where, you know, a student is in the midst of working through a
challenging situation or improving a relationship with a coworker and it's truly -- if that is the thing that is going to prevent this kid from being able to maintain a long term position of
employment, then I would say, yeah. The benefits the student who stay at that place of employment is certainly much greater than the benefit it may be giving to the employer at that time, so I think
that that's where you have to use some -- you have to use some professional judgment and determine whether or not, you know, if it's going to harm or help the students by staying there.
PATRICIA VASCO: And then document it because if the Wage and Hour Division comes along, and I don't know how often they come along, but I would have it documented that this is the reasons that this
person continuous in this position.
MICHAEL STOEHR: Right. Right. A question a came in about indicating in the IEP that the parent and the student were explained that the student would not be entitled to a paid position following an
unpaid work experience, should they include something in there and discuss that? You know, and I guess my thought is being you're talking about the IEP in the school setting, then as it -- as much
information as you can put and explain to the family it's important to do that. I think it's also -- and we -- and we really didn't talk about this a lot today, but to accurately access how that
young person's doing on that job site and explain that to both the young person and the family. I had students that were in work experience programs as a job coach and they were working example of
Wendy's, but they still needed a lot of support and I think it's really -- you need to explain what the support is and whether or not that student is ready for competitive employment in that area and
assess that because I think oftentimes, families and young folks think because they're doing an experience, that they are actually working or hired to the place of employment.
DANA BACCANTI: I certainly think that having some written guidelines, you know, and expectations and discussing that and that really is, you know, maybe where a teacher or an IEP coordinator can
enlist the services in the VR counselor and you talk about the pros and cons of having an unpaid work experience and the expectations of it and so forth, you know. I think, you know, looking at it,
how is it going to benefit the student? What does the student and their parent and the placement, you know, the employer have in terms what expectations do we have of this experience for everybody
involved? And really looking at it, how is it going to benefit the student in terms of long term vocational objectives and outcomes? You know, I guess I should say shorter term vocational objectives
but longer term outcomes. So, I, you know, maybe, you know, maybe we could develop a follow-up training for this in terms of very specific case studies or scenarios and apply some of the things. We
can certainly maybe look at -- involving the Wage and Hour Division and asking them to, you know, give us some, you know, what if types of scenarios that, you know, I think that you have to look at
the individual situations. I think that they're, you know, or some professional ethics that come into play in terms of educators and VR counselors, making those determinations and looking at really
basing these things upon the individual needs and abilities of the use in question and really having clear -- clearly stated and expressed expectations.
MICHAEL STOEHR: And the question came in too, Dana and Patty, about examples of what some folks are using to document or keep track of the different especially the unpaid work experiences and I know
there are some districts that really have nicely developed materials that they use, so back to your suggestion, maybe a follow-up to today's webinar or something we should look at for the next series
that we do.
DANA BACCANTI: Yeah.
MICHAEL STOEHR: It is some of these folks.
DANA BACCANTI: Certainly looking at tools that we can use and look at case studies and so forth, but I think that, you know, Patty and Michael, you guys did a great job with developing the content for
this webinar and the resources and looking at status of foundation, you know, it would be great. And Patty is writing notes. Go ahead.
PATRICIA VASCO: Michael, can you recall when we were at the last conference and we met the gentleman from Colorado?
MICHAEL STOEHR: Uh-hmm.
PATRICIA VASCO: I think -- and he did have a source at the Wage and Hour Division.
PATRICIA VASCO: And he said he was -- he went through a number -- a number of people and so he found someone who actually could answer his questions.
MICHAEL STOEHR: Right.
PATRICIA VASCO: So I can...
MICHAEL STOEHR: Right.
MICHAEL STOEHR: Yeah.
PATRICIA VASCO: I can shoot him an email and see -- get that person's name and see if they're still working and, you know, haven't retired or left that particular job.
MICHAEL STOEHR: Right. And we might also -- and a question came in for our transition conference and it's a little plug for this summer's July transition conference, maybe look at a session around
this topic might also be helpful for both.
PATRICIA VASCO: Absolutely.
MICHAEL STOEHR: You know, and then kind of repeat this in the [inaudible] the webinars I know we addressed or able to outreach to different folks, but I think that might be helpful that I mean,
definitely, you know, we'll -- we will look at doing that. I think we only have a couple of more minutes and if folks do have additional questions at the end of your PowerPoint, our email addresses
are on there. We could get back to you on that. I did want to mention just a couple of things. There are additional resources in addition to those that Dana and Patty had listed if you go into the
employment section of the secondarytransition.org website. There's information contained there. I did also want to mention to folks we have five more -- I'm sorry, four more remaining Webinars in
this series coming up. Later this month, there's going to be a session that is specific for students who are deaf and hard of hearing. And secondary transition in March, we're going to have a session
on instructional accessible materials. We also then have a session later in March on secondary transition and inclusive practices and then we're wrapping up in April and, again, I believe Dana and
Patty, you'll be helping us along with the folks from the office of developmental programs on the session looking at employment options for youth and the young adults. Again, we want to thank you for
joining us in today's webinar. Please remember to join us for the other session that I just mentioned. As a reminder, today's session is being recorded. It will take about four to six weeks and will
be closed-captioned and will be posted both on the PaTTan website as well as on the secondarytransition.org site so you can go back and find that. And with that, I think we're close to our 11:00
time. And I want to thank Dana and Patty for their efforts and work in putting today -- to gathers -- to gather today's material and for presenting, and Dana and Patty, if you have any closing
PATRICIA VASCO: Dana had to leave for another meeting, so it's just me.
MICHAEL STOEHR: All righty.
PATRICIA VASCO: I just want to thank everyone who listened in, and if you have questions, Dana and I certainly are not labor law experts, but we will try with -- we'll pull our resources and we'll
try and get the answers to your questions.
MICHAEL STOEHR: Great. All righty. Thank you all again for joining us today and have a great rest of the week. Thank you.