Student Learners

Minors, their parents and employers should know about the laws that protect children at work. Specific arrangements for student learners may be exempt from these laws altogether or provide limited exemptions to specific restrictions on work activities.

The law

Employment status

The protections and obligations of child labor laws extend only to employees.

The US Supreme Court has also ruled that the definition of "employ" (to suffer or permit to work) does not necessarily make everyone who performs work an employee. Specifically, trainees and students are not employees when they work without an express or implied compensation agreement for their own advantage on the premises of another AND meet ALL of the following criteria:

1. The training, even though it includes actual operation of the facilities of the employer, is similar to that which would be given in a vocational school
2. The training is for the benefit of the trainees or students
3. The trainees or students do not displace regular employees, but work under close supervision
4. The employer that provides the training receives no immediate advantage from the activities of the trainees or students and, on occasion, operations may even be impeded
5. The trainees or students are not necessarily entitled to a job at the conclusion of the training period AND
6. The employer and the trainees or students understand that the trainees or students are not entitled to wages for the time spent in training.

Work experience programs for students may be consistent with these criteria in as much as they provide:

1. 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 learning component and lead to the awarding of a skill certificate
2. A learning experience which encompasses a sequence of activities that build upon one another, that increase in complexity and promote mastery of basic skills
3. A learning experience structured to expose the student to all aspects of an industry and promotes the development of broad, transferable skills AND
4. A learning experience which provides for real or simulated tasks or assignments which push students to develop higher-order critical thinking and problem-solving skills.

A student participating in such a learning experience would NOT be considered an employee where ALL of the following criteria were 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 AND
2. The placement of the student at a worksite during the learning experience does not result in the displacement of any regular employee – i.e., the presence of the student at the worksite 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 or she would otherwise work AND
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 might successfully complete the training AND
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 receive a stipend for expenses such as books or tools

Student learners as employees

Student learners whose work experience does not meet all of the criteria for trainees (listed above under “employee status”) are employees entitled to the full protections of child labor, wage collection and minimum wage laws.

Under child labor law, student learners may qualify for limited exemption to prohibitions on hazardous work. Specifically, Hazardous Occupations orders numbers 5, 8, 10, 12, 14, 16 and 17 permit minors 16 and 17 years of age to perform hazardous work on a limited or intermittent basis if the student-learner is:

1. Enrolled in a course of study and training in a cooperative vocational training program under a recognized State or local educational authority or in a course of study in a substantially similar program conducted by a private school AND
2. Employed under a written agreement which provides:
   • That the work of the student-learner in the occupations declared particularly hazardous shall be incidental to their training
   • That such work shall be intermittent and for short periods of time, and under the direct and close supervision of a qualified and experienced person
   • That safety instructions shall be given by the school and correlated by the employer with on-the-job training AND
   • That a schedule of organized and progressive work processes to be performed on the job shall have been prepared.

The written agreement must contain the name of student-learner and be signed by the employer and the school coordinator or principal. A template for the student learner agreement is available here. Both the school and the employer need to keep copies of each agreement on file.

Prior to the minor performing work under the student-learner agreement, the employer must submit an application and receive an Annual Employment Certificate to employ the minor. In the description of duties section of the application, the employer must indicate the work is subject to a student-learner agreement.

Apprentices

Under child labor law, apprentices may qualify for limited exemption to prohibitions on hazardous work. Specifically, Hazardous Occupations orders numbers 5, 8, 10, 12, 14, 16 and 17 permit minors 16 and 17 years of age to perform hazardous work on a limited or intermittent basis if:

• The apprentice is employed in a craft recognized as an apprenticeable trade
• The work of the apprentice in the occupation declared particularly hazardous is incidental to their training
• Such work is intermittent and for short periods of time and is under the direct and close supervision of a journey worker as a necessary part of such apprentice training
• The apprentice is registered by the Bureau of Apprenticeship and Training of the U.S. Department of Labor or BOLI´s Apprenticeship and Training Division.