§ 214. — Employment under special certificates.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 29USC214]
TITLE 29--LABOR
CHAPTER 8--FAIR LABOR STANDARDS
Sec. 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.
(June 25, 1938, ch. 676, Sec. 14, 52 Stat. 1068; Oct. 26, 1949, ch. 736,
Sec. 12, 63 Stat. 918; Pub. L. 87-30, Sec. 11, May 5, 1961, 75 Stat. 74;
Pub. L. 89-601, title V, Sec. 501, Sept. 23, 1966, 80 Stat. 842; Pub. L.
93-259, Sec. 24(a), (b), Apr. 8, 1974, 88 Stat. 69, 72; Pub. L. 95-151,
Secs. 12, 13, Nov. 1, 1977, 91 Stat. 1252; Pub. L. 99-486, Oct. 16,
1986, 100 Stat. 1229; Pub. L. 101-157, Sec. 4(d), Nov. 17, 1989, 103
Stat. 941.)
References in Text
Effective date of the Fair Labor Standards Amendments of 1974,
referred to in subsec. (b)(1)(B)(i), (ii), means May 1, 1974, except as
otherwise specifically provided, under provisions of section 29(a) of
Pub. L. 93-259, set out as an Effective Date of 1974 Amendment note
under section 202 of this title.
Amendments
1989--Subsec. (b)(1)(A). Pub. L. 101-157 struck out ``(or in the
case of employment in Puerto Rico or the Virgin Islands not described in
section 205(e) of this title, at a wage rate not less than 85 per centum
of the otherwise applicable wage rate in effect under section 206(c) of
this title)'' after ``whichever is the higher''.
Subsec. (b)(2), (3). Pub. L. 101-157 struck out ``(or in the case of
employment in Puerto Rico or the Virgin Islands not described in section
205(e) of this title, at a wage rate not less than 85 per centum of the
wage rate in effect under section 206(c) of this title)'' after
``whichever is the higher''.
1986--Subsec. (c). Pub. L. 99-486 amended subsec. (c) generally,
revising and restating as pars. (1) to (5) provisions formerly contained
in pars. (1) to (3).
1977--Subsec. (b)(4)(B). Pub. L. 95-151, Sec. 12(a), substituted
``six'' for ``four'' wherever appearing.
Subsec. (b)(4)(D). Pub. L. 95-151, Sec. 13, added subpar. (D).
1974--Subsec. (a). Pub. L. 93-259, Sec. 24(a), added subsec. (a) and
struck out former subsec. (a) which had provided: ``The Secretary of
Labor, to the extent necessary in order to prevent curtailment of
opportunities for employment, shall by regulations or by orders provide
for the employment of learners, of apprentices, and of messengers
employed primarily in delivery letters and messages, under special
certificates issued pursuant to regulations of the Secretary, at such
wages lower than the minimum wage applicable under section 206 of this
title and subject to such limitations as to time, number, proportion,
and length of service as the Secretary shall prescribe.''
Subsec. (b). Pub. L. 93-259, Sec. 24(a), added subsec. (b) and
struck out former subsec. (b) which had provided: ``The Secretary, to
the extent necessary in order to prevent curtailment of opportunities
for employment, shall by regulation or order provide for the employment
of full-time students, regardless of age but in compliance with
applicable child labor laws, on a part-time basis in retail or service
establishments (not to exceed twenty hours in any workweek) or on a
part-time or full-time basis in such establishments during school
vacations, under special certificates issued pursuant to regulations of
the Secretary, at a wage rate not less than 85 per centum of the minimum
wage applicable under section 206 of this title, except that the
proportion of student hours of employment to total hours of employment
of all employees in any establishment may not exceed (1) such proportion
for the corresponding month of the twelve-month period preceding May 1,
1961, (2) in the case of a retail or service establishment whose
employees (other than employees engaged in commerce or in the production
of goods for commerce) are covered by this chapter for the first time on
or after the effective date of the Fair Labor Standards Amendments of
1966, such proportion for the corresponding month of the twelve-month
period immediately prior to such date, or (3) in the case of a retail or
service establishment coming into existence after May 1, 1961, or a
retail or service establishment for which records of student hours
worked are not available, a proportion of student hours of employment to
total hours of employment of all employees based on the practice during
the twelve-month period preceding May 1, 1961, in (A) similar
establishments of the same employer in the same general metropolitan
area in which the new establishment is located, (B) similar
establishments of the same employer in the same or nearby counties if
the new establishment is not in a metropolitan area, or (C) other
establishments of the same general character operating in the community
or the nearest comparable community. Before the Secretary may issue a
certificate under this subsection he must find that such employment will
not create a substantial probability of reducing the full-time
employment opportunities of persons other than those employed under this
subsection.''
Subsecs. (c), (d). Pub. L. 93-259, Sec. 24(a), (b), struck out
subsec. (c) and redesignated subsec. (d) as (c). Former subsec. (c) had
provided: ``The Secretary, to the extent necessary in order to prevent
curtailment of opportunities for employment, shall by certificate or
order provide for the employment of full-time students, regardless of
age but in compliance with applicable child labor laws, on a part-time
basis in agriculture (not to exceed twenty hours in any workweek) or on
a part-time or full-time basis in agriculture during school vacations,
at a wage rate not less than 85 per centum of the minimum wage
applicable under section 206 of this title. Before the Secretary may
issue a certificate or order under this subsection he must find that
such employment will not create a substantial probability of reducing
the full-time employment opportunities of persons other than those
employed under this subsection.''
1966--Pub. L. 89-601 provided for employment of full-time students
regardless of age but in compliance with applicable child labor laws
outside of their school hours in retail or service establishments or in
agriculture at not less than 85 percent of the minimum wage in full-time
positions during school vacations or in part-time positions not to
exceed 20 hours in any workweek under certificates issued by the
Secretary, set out the formula for the allowable proportion of student
hours of employment to total hours of employment, provided for the
employment of handicapped workers at rates down to 50 percent of the
applicable minimum wage and at even lower rates for persons suffering
severe impairment, authorized the establishment of special rates for
handicapped workers employed in work activities centers, and defined
work activity centers.
1961--Pub. L. 87-30 provided for employment of students in cl. (1).
1949--Act Oct. 26, 1949, substituted ``primarily'' for
``exclusively'' after ``messengers employed''.
Effective Date of 1977 Amendment
Amendment by Pub. L. 95-151 effective Nov. 1, 1977, see section
15(b) of Pub. L. 95-151, set out as a note under section 203 of this
title.
Effective Date of 1974 Amendment
Amendment by Pub. L. 93-259 effective May 1, 1974, see section 29(a)
of Pub. L. 93-259, set out as a note under section 202 of this title.
Effective Date of 1966 Amendment
Amendment by Pub. L. 89-601 effective Feb. 1, 1967, except as
otherwise provided, see section 602 of Pub. L. 89-601, set out as a note
under section 203 of this title.
Effective Date of 1961 Amendment
Amendment by Pub. L. 87-30 effective upon expiration of one hundred
and twenty days after May 5, 1961, except as otherwise provided, see
section 14 of Pub. L. 87-30, set out as a note under section 203 of this
title.
Effective Date of 1949 Amendment
Amendment by act Oct. 26, 1949, effective ninety days after Oct. 26,
1949, see section 16(a) of act Oct. 26, 1949, set out as a note under
section 202 of this title.
Transfer of Functions
For transfer of functions of other officers, employees, and agencies
of Department of Labor, with certain exceptions, to Secretary of Labor,
with power to delegate, see Reorg. Plan No. 6 of 1950, Secs. 1, 2, 15
F.R. 3174, 64 Stat. 1263, set out in the Appendix to Title 5, Government
Organization and Employees.
Rules, Regulations, and Orders Promulgated With Regard to 1966
Amendments
Secretary authorized to promulgate necessary rules, regulations, or
orders on and after the date of the enactment of Pub. L. 89-601, Sept.
23, 1966, with regard to the amendments made by Pub. L. 89-601, see
section 602 of Pub. L. 89-601, set out as a note under section 203 of
this title.
Study of Wages Paid Handicapped Clients in Sheltered Workshops
Section 605 of Pub. L. 89-601 instructed Secretary of Labor to
commence a complete study of wage payments to handicapped clients of
sheltered workshops and of feasibility of raising existing wage
standards in such workshops. The Secretary was directed to report to
Congress by July 1, 1967, findings of such study with appropriate
recommendations.
Section Referred to in Other Sections
This section is referred to in sections 215, 721 of this title.