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elaws - employment laws assistance for workers and small businesses - FLSA Section 14(c) Advisor

School Work Experience Program (SWEP) Placements that May Not Always Create an Employment Relationship

Students placed at worksites through a School Work Experience Program (SWEP) are not necessarily considered employees. To promote vocational training, the U.S. Department of Labor Wage and Hour Division and the U.S. Department of Education have entered into a letter of understanding that sets forth a Statement of Principles. The Wage and Hour Division has agreed not to assert an employment relationship between the worker with a disability, the school and/or the business where the student has been placed when seven principles or criteria are met. If any of the following seven criteria are not met, the student will be considered an employee under the FLSA and must be paid for all hours worked.

1. Participants have physical/mental disabilities and need intensive ongoing support to perform in a work setting.

2. Participation is for vocational exploration, assessment or training in a community-based worksite under the general supervision of public school personnel.

3. The placements are part of a clearly defined rehabilitation program specifically developed and designed for the benefit of each individual. The plan must list the needed transition services for exploration, assessment, training or cooperative vocational education, and must be fully disclosed to the individual and his or her parent or guardian.

4. Employers do not exceed the maximum number of hours allotted for vocational exploration, assessment or training. These hours are:

a. Vocational exploration: 5 hours per job experienced

b. Vocational assessment: 90 hours per job experienced

c. Vocational training: 120 hours per job experienced

5. The Wage and Hour Division can review the details of the placement and documentation showing that the student participated voluntarily without expectation of pay.

6. The activities of the individuals with disabilities (participants) at the community-based placement site do not result in an immediate advantage to the business. Factors that would indicate the business is advantaged by activities of the individual include:

  • The displacement of regular employees;
  • Vacant positions have been filled with the participants rather than regular employees;
  • Regular employees have been relieved of assigned duties;
  • Participants are performing services that - although not ordinarily performed by employees - are clearly of benefit to the business;
  • Participants are under continued and direct supervision of employees of the business rather than representatives of the rehabilitation facility or school; and/or
  • Placements of participants are made to accommodate the labor needs of the business rather than according to the requirements of the participant's individual plan for employment or individualized education program.

7. Individuals are not entitled to employment at the business. However, an individual who becomes an employee cannot be considered a trainee at that location unless in a different, clearly distinguishable occupation.

Again, if any of the above criteria are not met, the student will be considered an employee of the private business and/or the school under the FLSA and is entitled to all the protections of the FLSA.

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FLSA Section 14(c) Advisor | Wage and Hour Division