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U.S. Code as of:
01/19/04
Section 214. Employment under special certificates
(a) Learners, apprentices, messengers
The Secretary, to the extent necessary in order to prevent
curtailment of opportunities for employment, shall by regulations
or by orders provide for the employment of learners, of
apprentices, and of messengers employed primarily in delivering
letters and messages, under special certificates issued pursuant to
regulations of the Secretary, at such wages lower than the minimum
wage applicable under section 206 of this title and subject to such
limitations as to time, number, proportion, and length of service
as the Secretary shall prescribe.
(b) Students
(1)(A) The Secretary, to the extent necessary in order to prevent
curtailment of opportunities for employment, shall by special
certificate issued under a regulation or order provide, in
accordance with subparagraph (B), for the employment, at a wage
rate not less than 85 per centum of the otherwise applicable wage
rate in effect under section 206 of this title or not less than
$1.60 an hour, whichever is the higher, of full-time students
(regardless of age but in compliance with applicable child labor
laws) in retail or service establishments.
(B) Except as provided in paragraph (4)(B), during any month in
which full-time students are to be employed in any retail or
service establishment under certificates issued under this
subsection the proportion of student hours of employment to the
total hours of employment of all employees in such establishment
may not exceed -
(i) in the case of a retail or service establishment whose
employees (other than employees engaged in commerce or in the
production of goods for commerce) were covered by this chapter
before the effective date of the Fair Labor Standards Amendments
of 1974 -
(I) the proportion of student hours of employment to the
total hours of employment of all employees in such
establishment for the corresponding month of the immediately
preceding twelve-month period,
(II) the maximum proportion for any corresponding month of
student hours of employment to the total hours of employment of
all employees in such establishment applicable to the issuance
of certificates under this section at any time before the
effective date of the Fair Labor Standards Amendments of 1974
for the employment of students by such employer, or
(III) a proportion equal to one-tenth of the total hours of
employment of all employees in such establishment,
whichever is greater;
(ii) in the case of retail or service establishment whose
employees (other than employees engaged in commerce or in the
production of goods for commerce) are covered for the first time
on or after the effective date of the Fair Labor Standards
Amendments of 1974 -
(I) the proportion of hours of employment of students in such
establishment to the total hours of employment of all employees
in such establishment for the corresponding month of the
twelve-month period immediately prior to the effective date of
such Amendments,
(II) the proportion of student hours of employment to the
total hours of employment of all employees in such
establishment for the corresponding month of the immediately
preceding twelve-month period, or
(III) a proportion equal to one-tenth of the total hours of
employment of all employees in such establishment,
whichever is greater; or
(iii) in the case of a retail or service establishment for
which records of student hours worked are not available, the
proportion of student hours of employment to the total hours of
employment of all employees based on the practice during the
immediately preceding twelve-month period in (I) similar
establishments of the same employer in the same general
metropolitan area in which such establishment is located, (II)
similar establishments of the same or nearby communities if such
establishment is not in a metropolitan area, or (III) other
establishments of the same general character operating in the
community or the nearest comparable community.
For purpose of clauses (i), (ii), and (iii) of this subparagraph,
the term "student hours of employment" means hours during which
students are employed in a retail or service establishment under
certificates issued under this subsection.
(2) The Secretary, to the extent necessary in order to prevent
curtailment of opportunities for employment, shall by special
certificate issued under a regulation or order provide for the
employment, at a wage rate not less than 85 per centum of the wage
rate in effect under section 206(a)(5) of this title or not less
than $1.30 an hour, whichever is the higher, of full-time students
(regardless of age but in compliance with applicable child labor
laws) in any occupation in agriculture.
(3) The Secretary, to the extent necessary in order to prevent
curtailment of opportunities for employment, shall by special
certificate issued under a regulation or order provide for the
employment by an institution of higher education, at a wage rate
not less than 85 per centum of the otherwise applicable wage rate
in effect under section 206 of this title or not less than $1.60 an
hour, whichever is the higher, of full-time students (regardless of
age but in compliance with applicable child labor laws) who are
enrolled in such institution. The Secretary shall by regulation
prescribe standards and requirements to insure that this paragraph
will not create a substantial probability of reducing the full-time
employment opportunities of persons other than those to whom the
minimum wage rate authorized by this paragraph is applicable.
(4)(A) A special certificate issued under paragraph (1), (2), or
(3) shall provide that the student or students for whom it is
issued shall, except during vacation periods, be employed on a
part-time basis and not in excess of twenty hours in any workweek.
(B) If the issuance of a special certificate under paragraph (1)
or (2) for an employer will cause the number of students employed
by such employer under special certificates issued under this
subsection to exceed six, the Secretary may not issue such a
special certificate for the employment of a student by such
employer unless the Secretary finds employment of such student will
not create a substantial probability of reducing the full-time
employment opportunities of persons other than those employed under
special certificates issued under this subsection. If the issuance
of a special certificate under paragraph (1) or (2) for an employer
will not cause the number of students employed by such employer
under special certificates issued under this subsection to exceed
six -
(i) the Secretary may issue a special certificate under
paragraph (1) or (2) for the employment of a student by such
employer if such employer certifies to the Secretary that the
employment of such student will not reduce the full-time
employment opportunities of persons other than those employed
under special certificates issued under this subsection, and
(ii) in the case of an employer which is a retail or service
establishment, subparagraph (B) of paragraph (1) shall not apply
with respect to the issuance of special certificates for such
employer under such paragraph.
The requirement of this subparagraph shall not apply in the case of
the issuance of special certificates under paragraph (3) for the
employment of full-time students by institutions of higher
education; except that if the Secretary determines that an
institution of higher education is employing students under
certificates issued under paragraph (3) but in violation of the
requirements of that paragraph or of regulations issued thereunder,
the requirements of this subparagraph shall apply with respect to
the issuance of special certificates under paragraph (3) for the
employment of students by such institution.
(C) No special certificate may be issued under this subsection
unless the employer for whom the certificate is to be issued
provides evidence satisfactory to the Secretary of the student
status of the employees to be employed under such special
certificate.
(D) To minimize paperwork for, and to encourage, small businesses
to employ students under special certificates issued under
paragraphs (1) and (2), the Secretary shall, by regulation or
order, prescribe a simplified application form to be used by
employers in applying for such a certificate for the employment of
not more than six full-time students. Such an application shall
require only -
(i) a listing of the name, address, and business of the
applicant employer,
(ii) a listing of the date the applicant began business, and
(iii) the certification that the employment of such full-time
students will not reduce the full-time employment opportunities
of persons other than persons employed under special
certificates.
(c) Handicapped workers
(1) The Secretary, to the extent necessary to prevent curtailment
of opportunities for employment, shall by regulation or order
provide for the employment, under special certificates, of
individuals (including individuals employed in agriculture) whose
earning or productive capacity is impaired by age, physical or
mental deficiency, or injury, at wages which are -
(A) lower than the minimum wage applicable under section 206 of
this title,
(B) commensurate with those paid to nonhandicapped workers,
employed in the vicinity in which the individuals under the
certificates are employed, for essentially the same type,
quality, and quantity of work, and
(C) related to the individual's productivity.
(2) The Secretary shall not issue a certificate under paragraph
(1) unless the employer provides written assurances to the
Secretary that -
(A) in the case of individuals paid on an hourly rate basis,
wages paid in accordance with paragraph (1) will be reviewed by
the employer at periodic intervals at least once every six
months, and
(B) wages paid in accordance with paragraph (1) will be
adjusted by the employer at periodic intervals, at least once
each year, to reflect changes in the prevailing wage paid to
experienced nonhandicapped individuals employed in the locality
for essentially the same type of work.
(3) Notwithstanding paragraph (1), no employer shall be permitted
to reduce the hourly wage rate prescribed by certificate under this
subsection in effect on June 1, 1986, of any handicapped individual
for a period of two years from such date without prior
authorization of the Secretary.
(4) Nothing in this subsection shall be construed to prohibit an
employer from maintaining or establishing work activities centers
to provide therapeutic activities for handicapped clients.
(5)(A) Notwithstanding any other provision of this subsection,
any employee receiving a special minimum wage at a rate specified
pursuant to this subsection or the parent or guardian of such an
employee may petition the Secretary to obtain a review of such
special minimum wage rate. An employee or the employee's parent or
guardian may file such a petition for and in behalf of the employee
or in behalf of the employee and other employees similarly
situated. No employee may be a party to any such action unless the
employee or the employee's parent or guardian gives consent in
writing to become such a party and such consent is filed with the
Secretary.
(B) Upon receipt of a petition filed in accordance with
subparagraph (A), the Secretary within ten days shall assign the
petition to an administrative law judge appointed pursuant to
section 3105 of title 5. The administrative law judge shall conduct
a hearing on the record in accordance with section 554 of title 5
with respect to such petition within thirty days after assignment.
(C) In any such proceeding, the employer shall have the burden of
demonstrating that the special minimum wage rate is justified as
necessary in order to prevent curtailment of opportunities for
employment.
(D) In determining whether any special minimum wage rate is
justified pursuant to subparagraph (C), the administrative law
judge shall consider -
(i) the productivity of the employee or employees identified in
the petition and the conditions under which such productivity was
measured; and
(ii) the productivity of other employees performing work of
essentially the same type and quality for other employers in the
same vicinity.
(E) The administrative law judge shall issue a decision within
thirty days after the hearing provided for in subparagraph (B).
Such action shall be deemed to be a final agency action unless
within thirty days the Secretary grants a request to review the
decision of the administrative law judge. Either the petitioner or
the employer may request review by the Secretary within fifteen
days of the date of issuance of the decision by the administrative
law judge.
(F) The Secretary, within thirty days after receiving a request
for review, shall review the record and either adopt the decision
of the administrative law judge or issue exceptions. The decision
of the administrative law judge, together with any exceptions,
shall be deemed to be a final agency action.
(G) A final agency action shall be subject to judicial review
pursuant to chapter 7 of title 5. An action seeking such review
shall be brought within thirty days of a final agency action
described in subparagraph (F).
(d) Employment by schools
The Secretary may by regulation or order provide that sections
206 and 207 of this title shall not apply with respect to the
employment by any elementary or secondary school of its students if
such employment constitutes, as determined under regulations
prescribed by the Secretary, an integral part of the regular
education program provided by such school and such employment is in
accordance with applicable child labor laws.
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