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Issuance of learner certificates.
In the absence of extraordinary circumstances, applications for the employment of learners at wages lower than the statutory minimum wage in these industries shall be denied.
[32 FR 665, Jan. 20, 1967]
§ 522.93 Learner certificates in extraordinary circumstances.
In those cases where extraordinary circumstances are shown to exist, learner certificates for the employment of learners at wages lower than the statutory minimum wage shall be issued in accordance with the provisions of the general learner regulations (§§ 522.1 through 522.9) only after all interested parties have been given opportunity to present their views on the application pursuant to § 522.4.
[32 FR 665, Jan. 20, 1967]
SMALL ELECTRICAL PRODUCTS INDUSTRY
§ 522.100 Applicability of general regulations.
The employment of learners pursuant to the provisions of §§ 522.100 to 522.103 shall be subject to all provi
§ 522.103 Learner certificates in exceptional circumstances.
In each case where a prima facie showing of exceptional circumstances is initially made to the Administrator, the applicant will be given an opportunity to demonstrate at a public hearing, by reliable, probative, and substantial evidence, that the denial of the applicant for a special learner certificate will curtail opportunities for employment and that the granting of such certificate will not give a competitive advantage to the applicant or tend to depress working standards for experienced workers in the industry. At the public hearing interested persons will have full opportunity to appear, testify, and conduct such cross-examination as may be required for a full and true disclosure of the facts. In each case in which exceptional circumstances are shown to exist under the standards provided in this section, a special certificate for the employment of learners at wages less than the statutory minimum wage shall be issued in accordance with the
29 U.S.C. 206) whenever employment at such lower rate is necessary to prevent curtailment of employment opportunities.
[3 FR 2485, Oct. 15, 1938, as amended at 15 FR 603, Feb. 3, 1950]
§ 523.2 Applications by groups or individuals.
Such application may be filed by an employer or employee or group of employers or employees. Preferential considerations will be given, however, to applications filed by groups or organizations which are deemed to be representative of the interests of a whole industry or branch thereof.
§ 523.3 Consideration on basis of industry. All applications filed under this part will be considered and acted upon on the basis of the needs of the employees and employers in the industry as a whole rather than on the basis of the needs of individual employees or employers in the industry.
§ 523.4 Information in applications. The application shall:
(a) Identify the industry in which messengers, to be engaged primarily in delivering letters and messages, are requested to be employed at a wage lower than those applicable under section 6;
(b) Set forth the proposed hourly wage rate at which messengers will be compensated;
(c) State why messengers should be employed at a wage less than those applicable under section 6; and
(d) Include any other information believed to be pertinent.
[3 FR 2485, Oct. 15, 1938, as amended at 15 FR 603, Feb. 3, 1950]
§ 523.5 Hearings.
A hearing will be held before the Administrator or his authorized representative on such application at which all interested parties will be afforded an opportunity to present evidence and to be heard. A notice of the time, place, and scope of the hearing will be published in the FEDERAL REGISTER and made public by a general press re
lease at least five days before the date of such hearing.
§ 523.6 Witnesses.
The Administrator shall issue a subpoena for attendance at such hearings to any party upon request and upon a showing of general relevance and reasonable scope of the evidence sought. The Administrator may, on his own motion, or that of his authorized representative, cause to be brought before him or his authorized representative any witness whose testimony he deems material to the matters in issue.
[11 FR 9555, Aug. 30, 1946]
§ 523.7 Burden of proof on applicants.
The applicant or applicants shall have the burden of showing at such hearing that the minimum wage applicable under section 6 will curtail employment opportunities for messengers in the industry designated in the application.
§ 523.8 Further regulations for certificates.
If upon the hearing the Administrator or his authorized representative determines that a lower wage rate than the rate applicable under section 6 is necessary to prevent curtailment of employment opportunities, the Administrator will issue rules and regulations providing for the employment of messengers in the industry under special certificates at such lower wage (subject to such limitations as to time, number, proportion and length of service) as the Administrator or his authorized representative has found to be necessary on the basis of the evidence presented at the hearing.
§ 523.9 Petition for review.
Any person aggrieved by the action of an authorized representative of the Administrator under this part may within fifteen days after the action of such representative file a petition with the Administrator requesting a review by the Administrator of the action of the representative. If the request for review is granted, all interested parties will be afforded an opportunity to be heard either in support or in opposition to the matters prayed for in the
petition. A notice of the time and place and scope of the hearing will be published in the FEDERAL REGISTER and made public by general press release at least five days before the date of such hearing.
§ 523.10 Petition for amendment of regulations.
Any person wishing a revision of any of the terms of §§ 523.1 through 523.9 applicable to messengers may submit in writing to the Administrator a petition setting forth the changes desired and the reasons for proposing them. If, upon inspection of the petition, the Administrator believes that reasonable cause for amendment of the regulations is set forth, the Administrator will either schedule a hearing with due notice to interested parties, or will make other provision for affording interested parties an opportunity to present their views, both in support and in opposition to the proposed changes.
The Fair Labor Standards Amendments of 1986 (Pub. L. 99-486, 100 Stat. 1229) substantially revised those provisions of the Fair Labor Standards Act of 1938 (29 U.S.C. 201) (FLSA) permitting the employment of individuals disabled for the work to be performed (workers with disabilities) at special minimum wage rates below the rate that would otherwise be required by statute. These provisions are codified at section 14(c) of the FLSA and: (a) Provide for the employment under certificates of individuals with disabilities at special minimum wage rates which are commensurate with those paid to workers not disabled for the work to be performed employed in the vicinity for essentially the same type, quality, and quantity of work;
(b) Require employers to provide written assurances that wage rates of individuals paid on an hourly rate basis be reviewed at least once every six months and that the wages of all employees be reviewed at least annually to reflect changes in the prevailing wages paid to experienced individuals not disabled for the work to be performed employed in the locality for essentially the same type of work;
(c) Prohibit employers from reducing the wage rates prescribed by certificate in effect on June 1, 1986, for two years;
(d) Permit the continuance or establishment of work activities centers; and
(e) Provide that any employee receiving a special minimum wage rate pursuant to section 14(c), or the parent or guardian of such an employee, may petition for a review of that wage rate by an administrative law judge.
§ 525.2 Purpose and scope.
The regulations in this part govern the issuance of all certificates author
izing the employment of workers with disabilities at special minimum wages pursuant to section 14(c) of FLSA.
§ 525.3 Definitions.
(a) FLSA means the Fair Labor Standards Act of 1938, as amended.
(b) Secretary means the Secretary of Labor or the Secretary of Labor's authorized representative.
(c) Administrator means the Administrator of the Wage and Hour Division, U.S. Department of Labor, or the Administrator's authorized representa
(d) Worker with a disability for the purpose of this part means an individual whose earning or productive capacity is impaired by a physical or mental disability, including those relating to age or injury, for the work to be performed. Disabilities which may affect earning or productive capacity include blindness, mental illness, mental retardation, cerebral palsy, alcoholism, and drug addiction. The following, taken by themselves, are not considered disabilities for the purposes of this part: Vocational, social, cultural, or educational disabilities; chronic unemployment; receipt of welfare benefits; nonattendance at school; juvenile delinquency; and, correctional parole or probation. Further, a disability which may affect earning or productive capacity for one type of work may not affect such capacity for another.
(e) Patient worker means a worker with a disability, as defined above, employed by a hospital or institution providing residential care where such worker receives treatment or care without regard to whether such worker is a resident of the establishment.
(f) Hospital or institution, hereafter referred to as institution, is a public or private, nonprofit or for-profit facility primarily engaged in (i.e., more than 50 percent of the income is attributable to) providing residential care for the sick, the aged, or the mentally ill or retarded, including but not limited to nursing homes, intermediate care facilities, rest homes, convalescent homes, homes for the elderly and infirm, halfway houses, residential centers for drug addicts or alcoholics,
and the like, whether licensed or not licensed.
(g) Employ is defined in FLSA as to suffer or permit to work. An employment relationship arises whenever an individual, including an individual with a disability, is suffered or permitted to work. The determination of an employment relationship does not depend upon the level of performance or whether the work is of some therapeutic benefit. However, an individual does not become an employee if engaged in such activities as making craft products where the individual voluntarily participates in such activities and the products become the property of the individual making them, or all of the funds resulting from the sale of the products are divided among the participants in the activity or are used in purchasing additional materials to make craft products.
(h) Special minimum wage is a wage authorized under a certificate issued to an employer under this part that is less than the statutory minimum wage.
(i) Commensurate wage is a special minimum wage paid to a worker with a disability which is based on the worker's individual productivity in proportion to the wage and productivity of experienced nondisabled workers performing essentially the same type, quality, and quantity of work in the vicinity in which the individual under certificate is employed. For example, the commensurate wage of a worker with a disability who is 75% as productive as the average experienced nondisabled worker, taking into consideration the type, quality, and quantity of work of the disabled worker, would be set at 75% of the wage paid to the nondisabled worker. For purposes of these regulations, a commensurate wage is always a special minimum wage, i.e., a wage below the statutory minimum.
(j) Vicinity or locality means the geographic area from which the labor force of the community is drawn.
period. Typically, such a worker will have received at least one pay raise after successful completion of the probationary or training period.
§ 525.4 Patient workers.
With respect to patient workers, as defined in § 525.3(e), a major factor in determining if an employment relationship exists is whether the work performed is of any consequential economic benefit to the institution. Generally, work shall be considered to be of consequential economic benefit if it is of the type that workers without disabilities normally perform, in whole or in part in the institution or elsewhere. However, a patient does not become an employee if he or she merely performs personal housekeeping chores, such as maintaining his or her own quarters, or receives a token remuneration in connection with such services. It may also be possible for patients in family-like settings such as group homes to rotate or share household tasks or chores without becoming employees.
§ 525.5 Wage payments.
(a) An individual whose earning or productive capacity is not impaired for the work being performed cannot be employed under a certificate issued pursuant to this part and must be paid at least the applicable minimum wage. An individual whose earning or productive capacity is impaired to the extent that the individual is unable to earn at least the applicable minimum wage may be paid a commensurate wage, but only after the employer has obtained a certificate authorizing payment of special minimum wages from the appropriate office of the Wage and Hour Division of the Department of Labor.
(b) With respect to patient workers employed in institutions, no deductions can be made from such individuals' commensurate wages to cover the cost of room, board, or other services provided by the facility. Such an individual must receive his or her wages free and clear, except for amounts deducted for taxes assessed against the employee and any voluntary wage assignments directed by the employee.