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To Pay or Not To Pay: Differentiating Employment And Training Relationships Through Regulation And Litigation

The Fair Labor Standards Act (1938), administered by the U.S. Department of Labor, utilizes criteria established in landmark Supreme Court cases to distinguish nonpaid instructional work experiences from paid employment. Special Education teachers involved in developing jobs for students with disabilities should understand this distinction in order to prevent problems that could accrue from providing employment-related instruction without pay, when payment may be required. Recent federal appellate and district court cases have interpreted these earlier Supreme Court cases and regulations, leading the U.S. Departments of Education and Labor to revise their guidelines relating to community-based employment instruction. This paper provides a careful description of the underlying themes and legal parameters within which nonpaid training programs can operate through a review and analysis of this litigation. We also review recent U.S. Department of Education and U.S. Department of Labor guidelines, in order to assist in the design and implementation of instruction that is both programmatically and legally sound.