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Work Experience

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NC DIVISION OF SERVICES FOR THE BLIND POLICIES AND PROCEDURES
VOCATIONAL REHABILITATION


Section:

W

Title:

Work Experience

Current Effective Date:

04/12

Revision History:

Revised 01/02; 02/08; 06/09; 08/09; 03/10; 11/11


Multiple types of Work Experiences can be applied to an array of vocational situations for DSB eligible individuals, ranging from determination of eligibility or ineligibility for vocational rehabilitation (VR) services, determination of the nature and scope of vocational rehabilitation services needed by a person with a disability, and provision of multiple training opportunities such as On-the-Job (OJT) Training, internships, and unpaid work experiences. The purpose of this policy is to guide the implementation of the experiences and to ensure policy coordinates with the functions of our business partners, and to ensure business partners work with us within the parameters and laws administered by the United States Department of Labor (USDOL) under the Fair Labor and Standards Act (FLSA) as well as within the parameters of North Carolina Employment Law. DSB Work Experiences are categorized as follows:

ON THE JOB TRAINING-STANDARD
OJT-WRAP (WAGE REIMBURSEMENT FOR ADVANCE PLACEMENT)
INTERNSHIP
ON THE JOB TRAINING-STUDENTS (14-24 YEAR OLD STUDENTS)
WORK EXPERIENCES WITHOUT PAY

ON THE JOB TRAINING-STANDARD

Standard OJT Agreements can be entered into and approved in the field.

OJT means training by an employer in the private or public sector given to a participant who, after objective assessment, has been referred to and hired by the employer following the development of an agreement with the employer to provide occupational training in exchange for reimbursement of the employer’s extraordinary costs. OJT occurs while the participant is engaged in productive work, which provides knowledge and skills essential to the full and adequate performance of the job.

Considerations

OJT does not preclude a participant who has been trained by one employer from ultimately being placed in a comparable training related position with another employer and can be sequenced with or accompanied by other types of training such as classroom training.

Written Agreement

OJT Agreement (On-Line DSB-4009ojt-VR On-the-Job Training Agreement-Standard with instructions) is required. Because much of the language incorporated into the agreement is required by federal law (USDOL, FLSA, Civil Rights Act of 1964, the Americans with Disabilities Act (ADA) of 1990 etc.) and other required stipulations (wage, agreement duration, benefits, worker’s compensation, health and safety, etc) must be included, it should be reviewed carefully by the VR professional, the individual, and the employer prior to signing. Responsibilities of all involved parties are indicated. The employer will be supplied with the OJT Progress Report (DSB-4009-ojt-pr-VR On-the-Job Training Progress Report with instructions) for each billable period.

Guidelines

Time factors associated with OJT are negotiable between the VR professional and the employer. Individual factors must be considered including the present skill level of the individual, employment history of the individual, the complexity of the skills or tasks that must be learned, etc. The duration of OJT should be limited to a period not in excess of that required for the participant to acquire the skills needed for the position and cannot exceed 3 calendar months without the written justification and approval of the area VR supervisor. With the written justification and approval of the area VR supervisor, OJT can be lengthened but cannot exceed 6 calendar months or 1000 hours.

The duration of OJT can be expressed in terms of number of hours, days or weeks the participant is expected to work in the duration period. Consideration should be made for the particular needs of the employer and clarity for case recording purposes. Generally, measurement in hours is preferred.

Reimbursement rates, like duration, are negotiable. OJT training payments to employers are deemed to be in compensation for the extraordinary costs associated with training the participant and in compensation for costs associated with the lower productivity of the participant.

ON THE JOB TRAINING- WRAP (WAGE REIMBURSEMENT FOR ADVANCED PLACEMENT)

OJT-WRAP agreements must have state office approval prior to the beginning of training.

The Standard OJT program provide for wage reimbursement of up to and including 50% to the employer for extraordinary costs associated with training. The OJT-WRAP provides a greater wage incentive to employers who hire job candidates for positions requiring increased skill level, those jobs with greater complexity, or those with a more limited pool of qualified candidates from which to hire. In turn, these jobs will result in higher starting wages, availability of employment benefits and more opportunity for career advancement. Like the standard OJT, it involves training by any employer in the private or public sector for a participant who, after objective assessment, is referred to and hired by the employer. During the hiring process, a written agreement with the employer is developed to provide occupational training in exchange for reimbursement of a portion of wages paid the employee. OJT-WRAP occurs while the participant, regardless of current skill level, academic or vocational training, is engaged in productive work, which provides increased knowledge and skills essential to successful job performance.

Considerations

OJT-WRAP does not preclude a participant who has been trained by one employer from ultimately being placed in a comparable training related position with another employer and can be sequenced with or accompanied by other types of training such as classroom training.

Written Agreement

The agreed time frame for the training and amount of wage reimbursement will be recorded on the OJT Wage Reimbursement for Advanced Placement (DSB-4009ojt-wrao-VR On-the-Job Training Wage Reimbursement for Advanced Placement with instructions). It must be signed by the employer/trainer, the individual, and the DSB representative. This agreement must then be sent to the state office prior to the date of hire for approval.

Guidelines

OJT-WRAP cannot exceed six (6) calendar months or 1,000 hours whichever occurs first. Time factors associated with OJT-WRAP are negotiable between the VR professional and the employer. Individual factors must be considered including the present skill level of the individual, employment history of the individual, the complexity of the skills or tasks that must be learned, etc.

The duration of OJT-WRAP can be expressed in terms of number of hours, days or weeks the participant is expected to work in the duration period. Consideration should be made for the particular needs of the employer and clarity for case recording purposes. Measurement based on hours is recommended for clarity of case recording.

OJT-WRAP will be either 75% or 90% of wages paid to the employee for the identified duration period based on the wage at hire.

INTERNSHIP

Internship Agreements must have state office approval before the beginning of the internship period.

Considerations

Internship agreements can be entered with organizations for eligible individuals to provide them with experience, exposure and reference building opportunities for career establishment and future advancement. They can be entered with organizations in the public or private sector. Similar guidelines as the job training agreements are used, but with some marked exception include:

Written Agreement

The OJT agreement for internships (DSB-4009ojt-i-VR On-the-Job Training Agreement for Internships) must be completed prior to the beginning date of employment. It must be signed by the business partner, the intern, and the DSB representative. It then must have state office prior to the beginning of the internship. The employer will be provided the progress report (DSB-4009-ojt-pr-VR) for each billable period.

Guidelines

Other than the Internship-specific exceptions indicated above, all requirements identified in the on-the-job training agreements must be met.

As with OJT for Youth, Federal and State Youth Employment Law must be observed in all cases of internship for VR individuals if the person is less than 18 years of age. Many employers might be less than familiar with some of the details of the law and the VR representative must ensure there is full understanding of it. North Carolina Youth Employment Law has requirements and restrictions beyond those provided by federal law and should be reviewed by the VR professional prior to entering the agreement with a business (see OJT and YOUTH).

ON THE JOB TRAINING FOR STUDENTS (14-24 YEARS OLD STUDENTS)

OJT-Students must have state office approval before the beginning of the internship period.

OJT agreements for students can be entered with organizations in the public and private sector with the same guidelines as the standard OJT. On the Job Training regulations indicates that “OJT agreements shall not be entered into with employers which have exhibited a pattern of failing to provide continued long-term employment.” (US Department of Labor) However, “This prohibition does not apply to OJT agreements for youth in the program ... who are returning to school.” The stipulation in the standard OJT, “... the employer will provide regular employment for the individual upon completion...” is not incorporated into OJT for students. OJT for student agreements can be entered for DSB individuals who are returning to school and are between the ages of 14 and 24. For individuals less than 18 years of age, careful review of North Carolina Youth Employment Law is mandatory (GS95-25.5).

Guidelines

Youth Employment Labor Law

Federal and State Youth Employment Law must be observed in all cases of OJT for students for all individuals less than 18 years of age. Many employers might be less than familiar with some of the details of the law and the VR representative must ensure there is full understanding of it. North Carolina Youth Employment Law has requirements and restrictions beyond those provided by federal law including:

Written Agreement

A Modified On-the-Job Training Agreement (On-Line DSB 4009ojt-m-VR Modified On-the-Job Training Agreement with instructions) is required between the agency and the employer. It is modified for application to the employment of youths and students, deleting reference to regular employment at the end of the training period.

WORK EXPERINECES WITHOUT PAY

The US Department of Labor, Fair Labor Standards Administration (FLSA) governs the payment of workers on the job. When an employee performs "work" for an employer the FLSA says that an "employment relationship" exists and the employer must comply with DOL Wage & Hour Division guidelines and must pay workers accordingly.

Whether trainees or students are employees of an employer under the FLSA will depend upon all of 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, http://www.dol.gov/elaws/esa/flsa/scope/er15.asp

While "work" without pay is not allowed under FLSA, work experiences (exploration, work assessment and work adjustment/training) for a student or trainee, at an employer site, as part of a structured and controlled Individual Plan for Employment (IPE) or Individual Educational Plan (IEP), can now be accomplished in what DOL calls "private commercial operations." Such pre-hire opportunities permit a DSB VR individual to participate in job site work experiences without the payment of wages; these work situations can be established in the absence of an “employment relationship.” All work experiences must be part of the IPE or IEP with case record documentation of what goals or objectives are desired from the experience.

Guidelines

Where ALL of the following criteria are met, the USDOL will NOT assert an employment relationship for purposes of the FLSA.

An employment relationship will exist unless all of the criteria described in the guidelines above are met. If an "employment relationship" is found to exist, the business will be held responsible for full compliance with the applicable sections of FLSA, including those relating to child labor.

Businesses and VR organizations may, at any time, consider participants to be employees and may structure the program so that the participants are compensated in accordance with the requirements of FLSA. Whenever an employment relationship is established, the business may make use of the special minimum wage provisions provided pursuant to Wage and Hour Guidelines established in the FLSA.

Vocational Experiences - Exploration, Assessment, Adjustment/Training

While the existence of an employment relationship will not be determined exclusively on the basis of the number of hours, as a general rule, each component will not exceed the following limitations:

Stipulations

Stipulations directly related to the implementation of work experiences from the USDOL Wage and Hour Division follow:

Worker’s Compensation

For any unpaid work experience, the agency will provide Worker’s Compensation Insurance Coverage. The VR professional must request coverage from the agency’s business services director by using the Request Form (On-Line DSB-4009wcc-a-VR Request for Worker’s Compensation Coverage with instructions) and submit to the state office prior to the beginning of the experience.

Stipend – Maintenance

For any unpaid work experience, the agency will encumber a stipend paid to the participating individual from case service funds. The service code G09 will be used if the individual has been accepted for VR Services. If the individual has not yet been accepted for services, the stipend for the work experience will be coded A04. The stipend will be:

The stipend is not based on economic eligibility. In addition, Maintenance can be encumbered if it is necessary in order for the individual to participate in a work experience and the stipend does not adequately address those needs. Maintenance is subject to economic eligibility.

Written Agreement

A written agreement signed by the individual (parent or guardian, as appropriate), business representative and the VR representative is required prior to the start of a work experience (On-Line DSB-4009wop-VR Agreement for Work Experience without Pay with instructions).

Placement

VR Professionals within the DSB have identified individuals that: (1) although skilled and motivated, have limited access to the competitive employment in the labor market due to employer barriers; or (2) are individuals who are unskilled, and although motivated, have restricted access to the labor market. This limited access can be due to lack of skills or employer barriers or a combination of both.

Also, it has been determined, that these individuals comprise the largest population of individuals served when categorized by the individual’s access to the labor market. Therefore,

specific strategies have been developed to help these individuals overcome the limited or restricted access and enter the labor market. DSB has determined that the agency must move away from the traditional, linear, developmental model of VR services, and move toward a marketing approach focusing on employment. Strategies include relationship building with multiple employers and doing job development in the hidden labor market.

Guidelines

Job Shadowing

Job Shadowing can be a most beneficial tool for the individual as well as the employer. It offers the individual the opportunity to observe others working in various occupations, assists with vocational exploration, and gives those new to the labor market a first taste of the world of work. Shadowing can also be a reinforcer of the relationship built or being built between the VR professional and the employer, however

Eligibility, Ineligibility Determination, Nature and Scope of Services

The Federal Regulations are specific on the use of Trial Work Experiences (TWE) for Assessment of eligibility and for ineligibility. With “presumption of eligibility (presumed eligible),” more emphasis is given to its use for ineligibility than for eligibility. TWEs can be used as an assessment tool to assist in the development of the IPE or IEP and can be with or without pay although more often without pay. As with all work experiences, federal and state labor laws apply.

To the extent existing data VR counselor observations, education records, information from the individual, medical information, etc.) do not describe the current functioning of the individual or are unavailable, insufficient or inappropriate to make an eligibility determination, an assessment of additional data resulting from the provision of services, including TWE are necessary to determine eligibility.

The regulations specifically note that prior to any determination that an individual with a disability is incapable of benefiting from services in terms of employment outcome because of the severity of disability, a full assessment is required. Requirements include:

The Federal Regulations indicate that timeliness and promptness of the IPE development are primary concern. These regulations indicate that to the extent possible, the employment outcome and nature and Scope of required VR Services should be determined based on the data used for assessment of eligibility (which could have included TWE). However, these regulations also note that if additional data are necessary to determine employment outcome and nature and scope of required VR services, a comprehensive assessment is warranted. That assessment must be in the most integrated possible setting consistent with the individual’s informed choice.

To the degree needed, a comprehensive assessment, including use of “...work in real job situations to assess and develop the capacities of the individual to perform adequately in a work environment...” can be completed. Accordingly, the TWE for determination of employment outcome, or the nature and Scope of VR Services needed, can utilize paid or unpaid work experiences. These experiences can include unpaid work experiences, Supported Employment, OJT, or other work experiences.

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