Thinking of Not Renewing Your Certificate - Think It Through
Alternate Activities Become Hours Worked Without a Certificate
With the political climate and the prospect of elimination of commensurate wages in the future, some organizations are considering not renewing their FLSA Section 14( c) Special Minimum Wage certificate and just paying minimum wage to all consumer workers. Some have already allowed their certificate to expire and started paying the minimum wage for all work. Those decisions have been made without an understanding of the Fair Labor Standards Act differences in the regulations.
Not renewing a Section 14( c) certificate could be a costly mistake, because of the special allowances that are only allowed with the certificate.
The federal regulations at 29 CFR Part 525 only apply to certificate holders under FLSA Section 14( c). 29 CFR Part 525.6 recognizes the special needs of consumer workers with disabilities. Those needs include extra supervision, care, support and protection. It also recognizes that fact while under the supervision and control of the employer they are provided “alternate” non-work activities including therapy, simulated work training, basic education, etc. Thus, under Part 525.6, employers need not pay such time even though the consumer workers are not completely released and free to leave in many cases. Part 525.6 requires employers holding a certificate to clearly distinguish work time from alternate non-work activities.
Without the certificate, 29 CFR Part 525.6 does not apply. CFR Part 525 does not apply to any employer that does not have a Section 14( c) certificate.
Federal regulations 29 CFR Part 785 applies to employers without a Section 14( c) certificate. In Part 785, there is no exception or exclusion for “alternate” non-work activities. Part 785 enforces the general hours worked principals that have been established by the Courts over the years and the enforcement of the WHD.
See our companion article in our White Papers area. More detail and explanation is sprovided in our July Knuckles Report.
