FLSA2002-8 — Employment status of youth in summer job training program

· DEPARTMENT OF LABOR

U.S. Department of Labor
Employment Standards Administration
Wage and Hour Division
Washington, D.C. 20210

FLSA2002-8

September 5, 2002

Dear Name*,

This is in response to your letter requesting an opinion on the application of the Fair Labor Standards Act
(FLSA) to a summer job training program for local youths sponsored by your client, a nonprofit
organization. You request that our opinion address enterprise and individual coverage application,
domestic service employment application and trainee application under the FLSA with respect to the
participants of the program.

You indicate that program participants will include youths from public housing and other low-income area
in Name* Youths 16 and 17 years of age will act as supervising mentors to 11 through 15 years olds.
Supervising mentors will be treated as employees, will be paid $6.50 an hour, and will work 16 hours per
week for approximately 8 weeks during June, July and August. Mentees will spend program time as
interns in workshops and will perform entry-level administrative or clerical tasks for local businesses, as
well as cleaning, painting, removing trash, and performing like chores to help their elderly and disabled
neighbors. They will participate in the program 12 hours per week for approximately 6 weeks during June
and July, and will be given vouchers with a $5.00 face value that can be used at various local businesses.

The FLSA is the Federal minimum wage and overtime law. This Act applies to all employees in certain
enterprises having workers engaged in interstate commerce, producing goods for interstate commerce, or
handling, selling, or otherwise working on goods or materials that have been moved in or produced for
such commerce by any person, and the enterprise has an annual dollar volume of sales made or
business done of not less than $500,000 exclusive of excise taxes at the retail level which are separately
stated. Enterprise coverage applies to activities performed for a business purpose and does not extend to
religious, educational, or eleemosynary activities of private organizations operated on a non-profit
business, provided that such organizations are not operated in conjunction with the institutions named in
section 3 (r) and 3(s) of the Act.

The FLSA also applies to employees individually engaged in interstate commerce or in the production of
goods for interstate commerce, or in any closely-related process or occupation directly essential to such
production. Such coverage would extend to any employee who regularly and recurrently uses the
telephone, telegraph, or mails for interstate communications, or who prepares, handles, or in any manner
works on material of any type that is sent across state lines.

Your letter does not contain sufficient information for us to specifically determine if the program mentees
would be covered by the FLSA either on an enterprise or an individual basis. However, if the mentees are
placed in a covered enterprise and are suffered or permitted to work in such enterprise, or if they
individually engage in interstate commerce or in the production of goods for interstate commerce or in any
closely-related process or occupation directly essential to such production, the FLSA would be applicable.
The mentees would be subject to the monetary provisions of the Act.

Also, it is important to note that should any of the mentees be determined to be employees under the
FLSA, their employment would be subject to the child labor requirements of the FLSA. The FLSA
establishes a minimum age for nonagricultural employment of 16, but minors 14 and 15 years of age may
be employed in certain non-hazardous jobs for limited periods of time. Enclosed is a copy of Child Labor
Bulletin 101 which details the child labor requirements for nonagricultural employment. The fact that the
federal child labor provisions may not apply should not discourage your client from voluntarily complying
with their provisions. The child labor provisions are designed to serve as a platform from which young
workers can explore, not entirely free from risk, the world of work. They provide common sense guidelines
regarding the assignment of age-appropriate activities. They take into consideration the inherent risks
associated with certain occupations as well as the diminutive size, relative inexperience, and lack of
concentration that young workers bring to the workplace.

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· DEPARTMENT OF LABOR
TED STATES OFAMEN

U.S. Department of Labor
Employment Standards Administration
Wage and Hour Division
Washington, D.C. 20210

Domestic service employment was brought under the coverage of the FLSA by virtue of the FLSA
Amendments of 1974. The term "domestic service employment" as defined in Regulations, 29 CFR Part
552.3, refers to services of a household nature performed by an employee in or about a private home of
the person by whom he or she is employed. In this instance, since the elderly and disabled homeowners
are not employing the mentees to perform the cleaning, painting & trash removal services in and around
their homes, it is our opinion that the performance of such services would not constitute "domestic service
employment" within the meaning of the regulations.

With regard to trainees under the FLSA, the Supreme Court has held that the words "to suffer or permit to
work", as used in the Act to define "employ", do not make all persons employees who, without any
express or implied compensation agreement may work for their own advantage on the premises of
another. Whether trainees or students are employees of an employer under the FLSA will depend upon
all the circumstances surrounding their activities on the premises of the employer. If all of the following
criteria apply, the trainees or students are not employees within the meaning of the Act:

(1) the training, even though it includes actual operation of the facilities of the Name* 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 their close
observation;

(4) the employer that provides the training derives no immediate advantage from the activities of
the trainees or students; and on occasion his operations may actually 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 trainees are students understand that the trainees or students are not
entitled to wages for the time spent in the training.

A determination of whether or not an employment relationship exists under the FLSA must be based on
all the facts in a particular case. You state that mentees receive training (clerical and community
improvement skills) similar to that which is given in a vocational school, and which will provide them with
skills in preparation for the job market. Mentees will not displace regular employees, will not necessarily
be entitled to a job after the training is completed, and understand that they will not be paid for the time
spent in the training program. However, there is not enough information in your inquiry regarding the
actual training with respect to the administrative/clerical duties performed by the mentees or the amount
of supervision provided to them when performing such training duties. In this regard, we are unable to
ascertain whether productive work performed by the mentees would be offset by the burden to the
employers (local businesses) from the training and supervision provided. Therefore, we are unable to
make a definite determination as to whether the mentees are employees pursuant to the provisions of the
FLSA. If, in fact, the summer job training program is predominately for the benefit of the youth
participants, we would not assert an employment relationship.

This opinion is based exclusively on the facts and circumstances described in your request and is given
on the basis of your representation, explicit or implied, that you have provided a full and fair description of
all the facts and circumstances that would be pertinent to our consideration of the question presented.
Existence of any other factual or historical background not contained in your request might require a
different conclusion than the one expressed therein.

We trust the above information is responsive to your inquiry.

Sincerely,
Tammy D. Mccutchen
Administrator

Note: * The actual name(s) was removed to preserve privacy.

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