Work-based learning — a learning experience for a student at an employer’s worksite — is one of the three core elements of STW systems, along with school-based learning and connecting activities. It includes work experience (both paid and unpaid), workplace mentoring, and broad instruction, to the extent practicable, in all aspects of an industry.

In addition, work-based learning includes a planned program of job training and work experience at progressively higher levels. This planned program, coordinated with school-based learning, relates to the career majors of students and leads to the award of skill certificates.

Instruction in general workplace competencies — including developing positive work attitudes, employability, and participative skills — is also part of the work-based learning component of STW.

Are all STW work-based learning experiences subject to FLSA?

No. Activities occurring in the workplace that do not involve the performance of work are not “employment” subject to the Fair Labor Standards Act. Some examples of these activities include:

• Career awareness and exploration.

• Field trips to a worksite.

• Job shadowing (whereby a student follows and observes an employee’s daily activities, but performs no work).

What are the elements of a learning experience at an employer’s work-site?

There are four elements that constitute a learning experience under STW.

Specifically, a learning experience:

• Is a planned program of job training and work experience for the student, appropriate to the student’s abilities, which includes training related to pre-employment and employment skills to be mastered at progressively higher levels that are coordinated with learning in the school-based component and lead to the awarding of a skill certificate;

• Encompasses a sequence of activities that build upon one another, increasing in complexity and promoting mastery of basic skills;

• Has been structured to expose the student to all aspects of an industry and promotes the development of broad, transferable skills;

• Provides for real or simulated tasks or assignments which push students to develop higher-order critical thinking and problem-solving skills.

If only some of these elements are met, it is possible that a STW student would be an employee under FLSA; however, all of the facts and circumstances of the situation would have to be considered to decide if an employment relationship exists and whether the student or enterprise is covered by the FLSA. The Wage-Hour Offices listed on the last page can help you make the correct determination.

A student enrolled in a STW learning experience as described above would not be considered an employee within the meaning of FLSA if all of the following criteria are met:

1. The student receives ongoing instruction at the employer’s worksite and receives close on-site supervision throughout the learning experience, with the result that any productive work that the student would perform would be offset by the burden to the employer from the training and supervision provided;

2. The placement of the student at a work-site during the learning experience does not result in the displacement of any regular employee — i.e., the presence of the student at the work-site cannot result in an employee being laid off, cannot result in the employer not hiring an employee it would otherwise hire, and cannot result in an employee working fewer hours than he/she would otherwise work;

3. The student is not entitled to a job at the completion of the learning experience — but this does not mean that employers are to be discouraged from offering employment to students who successfully complete the training;

4. The employer, student, and parent or guardian understand that the student is not entitled to wages or other compensation for the time spent in the learning experience — although the student may be paid a stipend for expenses such as books or tools.

When all four of the above student criteria are met, an employer would not be required to pay wages to a student enrolled in a STW learning experience.

What does it mean if a learning experience is not subject to FLSA?

It means that a student is not an employee, wages are not paid, and Federal child labor laws do not apply. Payment of a stipend is optional. However, a stipend may not be used as a substitute for wages. A stipend is generally limited to reimbursement for expenses such as books, tuition, or tools. There are not specific stipulations for the length of a learning experience, as long as the four criteria listed above apply throughout the period of the student’s participation.

While child labor laws do not apply if there is not an employment relationship, STW systems are encouraged to adhere to child labor laws with regard to hazardous working conditions. Instruction and training in occupations that involve the use of machinery such as slicing machines, trash compactors, and bread dough kneading machines have been known to cause serious injuries. Child labor laws provide guidance that can assist STW participants in determining hazardous jobs or working conditions for students (See Exhibits, pages D-6 to D-9).