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WBL Legal Considerations

Educators, community members, and employers working with minors have a responsibility to provide youth with the education and experiences that will prepare them to be college- and career-ready. Fortunately for some, that includes opportunities to apply work or classroom learning in other environments. The primary concern, whether minors are learning in school or out of school, is that students are safe. Employment of minors laws have developed over time to ensure that youth are not exploited in work environments and are afforded specific protections.

Guidance has been produced by a team from the Wisconsin Department of Workforce Development (DWD) and the Wisconsin Department of Public Instruction (DPI) to assist schools and employers who hire youth. It is the primary responsibility of the DWD Equal Rights Division to issue permits and enforce laws that address the employment of minors in the state.

Note that this guidance is meant to be used along with the Guide to Wisconsin’s Employment of Minors Laws as an interpretive aide and is not meant to replace Wisconsin Administrative Code Chapter DWD 270 or cover all possible scenarios or exceptions. Furthermore, this guide does not constitute a legal document which can be asserted as evidence in a court of law.

Compulsory Attendance

School boards and districts have broad authority and autonomy to personalize the learning experience for students in the high school grades to meet the needs of individual students as they progress to graduation. Published in 2017, Fostering Innovation in Wisconsin Schools also outlines credit and seat time flexibilities to support college and career readiness.

According to Wis. Stat. § 118.33(1)(b), a school board may not grant a high school diploma to any pupil unless, during the high school grades, the pupil has been enrolled in a class or has participated in an activity approved by the school board during each class period of each school day, or the pupil has been enrolled in an alternative education program, as defined in Wis. Stat. § 115.28(7)(e). Nothing in this paragraph prohibits a school board from establishing a program that allows a pupil enrolled in the high school grades who has demonstrated a high level of maturity and personal responsibility to leave the school premises for up to one class period each day if the pupil does not have a class scheduled during that class period.

Each school board submits to DPI high school graduation policies governing the granting of diplomas (Wis. Stat. § 118.33(1)(f)). Policies include course requirements, number of clock hours of instruction required to earn one credit in the courses, and education programs for students with exceptional educational interests, needs, or requirements.

According to Wis. Admin. Code sec. PI 18.05(1)(d), open campus and work release may not be approved by a board under this section. However, a pupil’s employment during school hours may be approved if the employment is part of or related to the pupil’s instructional program [school-supervised work-based learning experience sponsored by an accredited school, the technical college system board, or DWD’s Youth Apprenticeship program]; or if the employment is approved as an accommodation for a pupil with exceptional educational interests, needs, or requirements (Wis. Admin. Code sec. PI 18.04). Note that “work release,” permitting students to leave the school premises solely for employment is different from a “work-based learning program,” a program that provides occupational training and work-based learning experiences. (Wis. Admin. Code sec. PI 18.05; Wis. Admin. Code sec. PI 18.02(11); Wis. Stat. § 115.363(1)(b))

Districts have the authority to determine the equivalency of learning experiences outside of the classroom or the modified learning experience to actual traditional classroom instruction and how those experiences appear on the transcript (Wis. Stat. § 118.15(1)(c)). Districts should consider what the implications are for postsecondary plans of the student when determining how to reflect activities or experiences on the transcript. Districts can structure work-based learning experiences (hours, credit, etc.) to accommodate the needs of students. Students under 18 cannot work during school hours unless participating in structured work-based learning for credit (Wis. Admin. Code sec. DWD 270.10(1)).

Currently, Wis. Stat. 118.56 addresses a specific type of work-based learning program and requirements for it. This statute does not preclude any other school-supervised work-based learning experience, such as DPI’s State-certified Cooperative Education programs, DWD’s Youth Apprenticeship program (Wis. Stat. § 106.13), or local cooperative education programs, approved by school boards.

Exceptional, Alternative, and Special Education

Special education programming in Wisconsin requires students under individualized education plans (IEPs) to develop annual postsecondary transition plans (PTPs) beginning at age 14. Furthermore, considerations for employment during school hours may be allowed if the employment is approved as an accommodation for a pupil with exceptional educational interests, needs, or requirements (Wis. Admin. Code sec. PI 18.05(1)(d)).

Under Wisconsin statute, alternative education is defined as an instructional program, approved by the school board, that utilizes successful alternative or adaptive school structures and teaching techniques and that is incorporated into existing, traditional classrooms or regularly scheduled curricular programs or that is offered in place of regularly scheduled curricular programs. “Alternative educational program” does not include a private school, a tribal school, or a home-based private educational program (Wis. Stat. § 115.28(7)(e)1).

In addition, the Division of Vocational Rehabilitation (DVR) offers additional support programs to assist individuals with disabilities in seeking employment as part of transition services. These services include employment guidance and counseling, assistance finding and keeping a job, assistive technology, and training. Contact the local DVR office for more information.

Coordinator Licensing

Supervision and coordination of work-based learning (WBL) is a critical component of quality programs. Several license types can oversee school- supervised WBL. These are the recommended positions that are uniquely trained to do this work.

  • School-to-Work Coordinator 
  • CTE Coordinator 
  • Local Vocational Education Coordinator 

Teachers and administrators can oversee this work but are not specifically trained, through an approved program, to implement quality WBL with fidelity.

Child Labor Laws

CAUTION: This section does NOT cover all of the child labor laws or exceptions and has been edited for common situations encountered in WBL programs.

In general, there are two broad categories of youth employment: a regular youth-employer relationship that exists between a minor and employer for compensation for productive work for an employer, and a school- supervised work-based learning experience. Wisconsin Administrative Code Chapter DWD 270 and the Guide to Wisconsin’s Employment of Minors Laws address the legal requirements and considerations for all youth employment.

Employment means that a person is required, or directed by an employer in consideration of direct or indirect gain or profit, to engage in any employment, or to go to work, or be at any time in any place of employment. However, students who are enrolled in school, in a school- supervised work-based learning experience, sponsored by an accredited school, the technical college system board, or DWD’s Youth Apprenticeship program, and receive school credit for program participation, are designated specifically as “student learners.” In order to be considered a student learner, minors must meet the following criteria:

  1. They are enrolled in a school-supervised work-based learning experience sponsored by an accredited school, the technical college system board, or DWD’s Youth Apprenticeship Program.
  2. They are enrolled in school and receive school credit for program participation.
  3. They receive appropriate safety instruction at the school and at the workplace.
  4. The work performed is under direct and close supervision of a qualified and experienced person.
  5. The work performed in any occupation declared hazardous is incidental to the training and is for intermittent and short periods of time.

There is a schedule of organized and progressive work processes to be performed on the job. (Wis. Admin. Code sec. DWD 270.14(3)). Furthermore, there are some specific references that should be considered when operating a school-supervised work-based learning (WBL) program. Please note that this is not an all-inclusive list of every possible work circumstance and employers and schools should thoroughly review the programs and child labor laws at the links above prior to beginning any school-supervised WBL program.

WORK PERMITS

  • Work permits are required for the lawful employment of minors under 16 years of age in work in connection with the business, trade, or profession of an employer.
  • Work permits are NOT needed for:
    • Youth age 16 and older
    • Agricultural work
    • Domestic employment in a private home that is not a business
    • Volunteer work for a nonprofit agency
    • The Youth Apprenticeship (YA) Program if work is restricted only to YA skills training
    • Work with a nonprofit organization in and around the home of an elderly person or a person with a disability to perform snow shoveling, lawn mowing, leaf raking, or other similar work usual to the home of the elderly person or person with a disability (restrictions apply)
    • Employment/work under the direct supervision of the parent or guardian in connection with the parent’s or guardian’s business, trade, or profession (Wis. Admin. Code sec. DWD 270.05)

AGES OF WORK

  • A minor who is 14 years of age or older may not be employed during the hours that the minor is required to attend school unless the minor has graduated from high school, passed the general education development test, or is participating in an approved school-supervised work-based learning experience for which proper scholastic credit is given (Wis. Admin. Code sec. DWD 270.10(1)).
  • See laws for exceptions to the under 14 years of age law.

HOURS OF WORK

  • Minors under 18 are allowed to work during school hours if the student is enrolled in a school-supervised work-based learning experience.
  • Hours worked as part of a work-experience program during school hours do not count as part of the total labor law permitted hours of work per day or per week.
  • Wisconsin no longer limits the hours 16- and 17-year-old minors may work. (Wis. Admin. Code sec. DWD 270.11)

RESTRICTED WORK TASKS

  • Student learner status does not override the child labor laws. The student learner exception limits the minor to performing some hazardous tasks on an incidental (less than 5 percent of their work time) and occasional (not a regular part of their job) basis.
  • See Guide to Wisconsin’s Employment of Minors Laws for a complete list of tasks and equipment allowances and restrictions.

Liability and Insurance

In general, if an employer has adequate general liability and workers’ compensation coverage, no additional liability is required as a result of hiring youth. However, before hiring youth and/or participating in a work- based learning program, an employer may wish to consult with their insurance carrier. Ultimately, final determination of liability in a particular situation will be determined by a court of law after review of the specific circumstances.

The party responsible for transportation is liable in case of an accident. Minors responsible for their own transportation to and from the worksite are responsible for their own insurance. In instances where the school provides transportation for student learners, the school may be responsible for insurance coverage. Only if the employer provides transportation to or from work for youth may the employer be responsible for this insurance coverage.

When a minor becomes an employee of a company, they must be covered by the employer’s workers’ compensation coverage. For agricultural employers, farmers need to carry workers’ compensation insurance if they have six or more employees.

Minors can file for unemployment compensation unless the minor is enrolled full-time in a public educational institution and receives school credit for participation in a work-based learning program.

The employment of minors participating in a school-supervised work-based learning experience should not impair existing contracts for services or collective bargaining agreements. Any student learner program that would be inconsistent with the terms of a collective bargaining agreement should be approved with the written concurrence of the labor organization and employer involved. (Wisconsin Department of Workforce Development 2018).

Safety

Ensuring the safety of each student during a work-based learning activity is required by both the district and the employer. Specific safety instruction should be incorporated into both classroom and worksite elements of any career-based and work-based learning experience, including short visits for tours and job shadows. The following are a few general resources available to the teacher-coordinator to help address this important topic.

  • Youth@Work - United States Equal Employment Opportunity Commission’s (EEOC). Rights and responsibilities as an employee to eliminate discrimination in the workplace. Classroom resources available.
  • YouthRules! - United States Department of Labor. National child labor laws in student friendly webpages and toolkits.
  • Safe Work for Young Learners - Youth worker safety information by hazard from the Occupational Safety and Health Administration.

Student Records

Using student data for district, school, and classroom improvement planning can be very helpful when used correctly and with the necessary security and privacy practices in place. Although data can be used to facilitate change and improvement, the usefulness of this data must be balanced with the privacy of the students represented by the data. This includes data about enrollment and participation in WBL programs.

The Family Educational Rights and Privacy Act (FERPA) (20 U.S.C. § 1232g; 34 CFR Part 99) and the Wisconsin Pupil Records Law (118.125) protect the privacy of student education records. The laws apply to all schools that receive funds under an applicable program of the U.S. Department of Education. Collection, dissemination, and retention of all student information should be controlled by local district procedures designed to implement the primary task of the district while protecting individual rights and preserving the confidential nature of the various types of records. Furthermore, the Wisconsin Department of Public Instruction and the Wisconsin Department of Workforce Development provide for limited and secure data access for the State-certified Cooperative Education and Youth Apprenticeship programs. Consult the DPI Student Data Privacy resources for more information on data privacy and responsibilities of school districts.

Wages

Minors must be paid at least minimum wage when engaged in productive work for an employer. Wisconsin wage statutes require that employers pay all workers all wages earned on at least a monthly basis, except farm labor which can be paid at quarterly intervals. Exceptions exist in some circumstances based on the nature of the work; however, in general, if a student learner is part of a school-supervised work-based learning experience, whereby a student trains, and an employer gains advantage from the work a student completes, then an employer-employee relationship exists and that student is owed wage compensation. In addition, the on-the-job training period is regarded as employment time for minors no matter the length of training time.

Exceptions to paying student wages can fall into the following three categories. However, caution should be exercised and considerations given where a student learner may be owed wages.

Student work-like activities: No compensation is required if:

  • The primary purpose is educational and the activity is primarily for the benefit of the student.
  • The student performs the activities for time periods of one hour or less per day.
  • The student is supervised by an adult.
  • Work-like activities may include helping in the school lunchroom or cafeteria, cleaning a classroom, acting as a hall monitor, performing minor clerical work in the school office or library, or performing tasks as an extension of the classroom learning experience, e.g., building sheds for the community.

Volunteer/service learning: Volunteer service is given freely without consideration or anticipated monetary payment.

  • The work is performed for charitable, nonprofit organizations, including nonprofit hospitals or nursing homes and government agencies.
  • Commercial businesses may not legally use minors as unpaid volunteers.
  • Minors cannot volunteer for a for-profit business, but they can go there and shadow or observe as part of an educational experience.
  • Written consent of the minor’s parent and supervision by a responsible adult is required.
  • No minor may volunteer in an occupation or place of employment deemed dangerous.

Intern/trainee: Training is academically oriented for the benefit of the student, and no employer-employee relationship exists. If all six criteria listed below apply, the trainee or student is not employed:

  • The training, even though it includes actual operation of the facilities of the employer, is similar to that which would be given in a vocational school;
  • The training is for the benefit of the trainees or students;
  • The trainees or students do not displace regular employees, but work under their close observation;
  • The employer that provides the training derives no immediate advantage from the activities of the trainees or students, and on occasion the employer’s operations may actually be impeded;
  • The trainees or students are not entitled to a job at the completion of the training period; and
  • The employer and the trainees or students understand that the trainees or students are not entitled to wages for the time spent in training.

Otherwise, the trainee or student will be regarded as an employee and must be paid.