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§ 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.



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