Hours of Work of Consumer Workers With Disabilities Under the FLSA

When There is No FLSA Section 14 Special Minimum Wage Certificate

Many community rehabilitation programs and similar programs serving consumers with significant disabilities paying commensurate wages under an FLSA Section 14 Special Minimum Wage Certificate are considering not renewing their certificate and paying the state or federal minimum wage.

However, management and programing must understand that the compensable hours of work are different without the certificate. Certain previous time becomes compensable without the certificate.

When the employer, CRP, workshop, has no Section 14( c) certificate, the consumers who work become employees just as the staff. This is difficult to understand for the CRP (sheltered workshop) industry after so many decades of the special allowance provided by Part 525.6 regarding the hours of work.

No Such Thing As Unpaid "Alternate Non-Work Activities"

The special allowance in Part 525.6 allows “alternate nonwork” activities during the work day to be unpaid time. However, without the certificate, Part 525.6 does not apply in any manner. A different regulation, Part 785.27, applies to all employees (including paid consumer workers with disabilities). 

Without a subminimum wage certificate, once a worker is under the control of the employer the “regular working hours” are established as the person’s work day including non productive time and meetings. All the time during "regular work day" is compensable time regardless of productivity. The regular work day begins with the first principle activity and ends with the last principle activity and all hours between are compensable. The only exception is bona fide completely relieved meal periods. Part 785.27 provides the following exception for meetings and training, i.e. alternate nonwork activites. Note that ALL four of the Part 785.27 criteria must be met for the time in a lecture, meeting, or training program, alternate nonwork activities to not be compensable hours worked. If one criteria is not met, the time in the lecture, training, meeting or similar nonwork activities is work time.

§ 785.27 General.

Attendance at lectures, meetings, training programs and similar activities need not be counted as working time if the following four criteria are met:

 785.27(a) Attendance is outside of the employee's regular working hours;

 785.27(b) Attendance is in fact voluntary;

 785.27(c) The course, lecture, or meeting is not directly related to the employee's job; and

 785.27(d) The employee does not perform any productive work during such attendance.

785.28 Involuntary attendance. Attendance is not voluntary, of course, if it is required by the employer. It is not voluntary in fact if the employee is given to understand or led to believe that his present working conditions or the continuance of his employment would be adversely affected by nonattendance.

BNA law library explanation: Training Programs and Instructional Meetings

On-the-job training of employees, including newly hired applicants, generally counts as compensable worktime under FLSA. 

MKAI explanation/comment: The answer to the question whether alternate nonwork activities are compensable without a certificate now becomes a question; what (is) are the consumer workers’ “regular working hours?”  That must be answered within reason as it would apply to traditional employment as any employee would have as their “work day.” While some employees have varying work times, most have a “regular work day” or “regular working hours.”  Thus, an employer cannot set up a system that varies the working hours day by day to avoid paying for lectures, training, meetings and the like.

When does the worker come under the control of the employer and when is the worker released by the employer? Productivity or productive work is not the litmus test for the answer. Fire fighters and EMS are paid to wait, shoot pool, work out, study, read, sleep, talk about the ball game, and/or do nothing while they wait on the alarm. Thus, it is a matter of what period of time are they under the control of their employer, not just whether they are engaged in production or productive work.

The classic example in CRP industry and similar programs across the country are the birthday celebrations.  When staff celebrate staff birthdays (not during lunch), the employer typically keeps the staff on the clock because it is during their regular working hours and they remain under the control of the employer. When CRP and similar programs celebrate consumer birthdays (not during lunch), the common response is to clock out consumers and not pay them for the time (thanks to the certificate and Part 525.6).

Without a certificate, under Part 785 and the “work day rule” we cannot have consumer workers going in and out of paid work and alternate nonwork activity multiple times during their program day. Once, under the control of the employer, the time is compensable even if no productive work is performed. Thus, without a certificate, programs that provide alternate nonwork activities must organize the consumer’s day into two distinct periods, one as the “work day” (“regular working hours”) and one that is “service hours” or a program day. Then, whatever occurs during the established “regular working hours” is compensable at the minimum wage or more whether it is productive work, a lecture, a meeting, client meeting, therapy, CPR training, work training, waiting on work, machine stoppage, or other training unrelated to work. Management must then attempt to schedule non-productive alternate nonwork activity during the “service hours” or “program day” and not during the “regular work hours.”

So, what are the consumers’ “regular working hours?”  There must be an established “regular working hours” (a work day) and a clear understanding by the consumers of the established work day and the nonwork day for the nonwork and unrelated to work activities, lectures, meetings, etc.

MKAI does not replace your legal counsel and this is not considered legal advice.