24.16.2301 EMPLOYMENT OF LEARNERS

(1) Applicability of regulations contained in this part are issued in accordance with section 39-3-406 MCA of the law to provide for the employment under special certificates of learners at wages lower than the minimum wage applicable under section 39-3-404 MCA. Such certificates shall be subject to the provisions hereinafter set forth and to such additional terms and conditions as may be established in supplemental regulations applicable to the employment of learners in particular industries.

(2) Definitions. As used in the regulations contained in this part:

(a) A "learner" is a worker whose total experience in an authorized learner occupation in the industry within the past three years, is less than the period of time allowed as a learning period for that occupation in a learner certificate issued pursuant to the regulations in this part.

(b) An "experienced worker" is a worker whose total experience in an authorized learner occupation in the industry within the past three years is at least equal to the period of time allowed as a learning period for that occupation in a learner certificate issued pursuant to the regulations in this part.

(3) Application for a learner certificate.

(a) Whenever the employment of learners at wages lower than the minimum wage applicable under section 39-3-404 MCA of the law, is believed necessary to prevent curtailment of opportunities for employment in a specified plant, an application for a certificate authorizing the employment of such learners at subminimum wage rates may be filed by the employer with the Commissioner of Labor or his representative.

(b) Application must be made on the official form furnished by these divisions and must contain all information required by such form, including among other things, information concerning efforts made by the applicant to obtain experienced workers, the occupations in which learners are to be employed, the number of learners previously hired, whether learners are actually available, the number of learners requested, their proposed hourly rates and learning periods in number of hours, the number of experienced workers in such occupations and their straight time average hourly earning during the last payroll period, the number of workers employed during previous periods, and the type of equipment to be used by learners. Any applicant may also submit such additional information as may be pertinent.

(c) Any application which fails to present the information required by the forms may be returned to the applicant with a notation to deficiencies and without prejudice against

submission of a new revised application.

(d) Separate application must be made with respect to each learner which the applicant desires to employ at subminimum wage rates.

(e) The number of trainees will be limited according to the total number of employees.

(f) Approval of the training program and the application for learner certificate must be obtained prior to the employment of a learner at subminimal wages.

(4) Procedure for action upon an application. Upon receipt of an application for a certificate, the Administrator or his authorized representative shall consider all of the relevant facts and, subject to the conditions specified in subsection (5) of ARM 24.16.2301, shall issue or deny a learner certificate. To the extent he deems appropriate, the administrator or his authorized representative may provide an opportunity to other interested persons to present data and views on the application prior to granting or denying a learner certificate.

(5) Conditions governing issuance of a learner certificate. The following conditions shall govern the issuance of a special certificate authorizing the employment of learners at subminimum wage rate:

(a) An adequate supply of qualified experienced workers is not available for employment; the experienced workers presently employed in the plant in occupations in which learners are requested are afforded an opportunity, to the fullest extent possible, for full-time employment; learners are available for employment; and the granting of a certificate is necessary in order to prevent curtailment of opportunities for employment.

(b) Reasonable efforts have been made to recruit experienced workers, including the placement of an order with the local State Employment Security Office not more than fifteen days prior to the date of application. Written evidence from such office that the order has been placed shall be submitted by the employer with the application.

(c) The issuance of a learner certificate will not tend to create unfair competitive labor cost advantages nor have the effect of impairing or depressing wage or working standards established for experienced workers for work of a like or comparable character in the industry.

(d) Abnormal labor conditions such as a strike, a lockout, or other similar condition, do not exist at the plant for which a learner certificate is requested.

(e) There are no serious outstanding violations of the provisions of a learner certificate previously issued to the company, nor have there been any serious violations of the law which provide reasonable grounds to conclude that the terms of a certificate may not be complied with, if issued.

(f) The occupation or occupations in which learners are to receive training involve a sufficient degree of skill to

necessitate an appreciable training period.

(g) Learners shall be afforded every reasonable opportunity for continued employment upon completion of the training period.

(6) Terms and conditions of employment under learner certificates.

(a) A learner certificate, if issued, shall specify, among other things: the occupations in which learners may be employed; the subminimum wage rates permitted during the authorized learning period which must be at least 85% of the applicable minimum wage; the learning period for each authorized learner occupation; and the effective and expiration dates of the certificate.

(b) A learner certificate may be issued for a period not longer than 30 days.

(d) No learners shall be hired under a learner certificate if, at the time the employment begins, experienced workers capable of equaling the performance of a worker of minimum acceptance skill are available for employment. Each time before hiring learners an order for experienced workers must be placed or be on active file with the local State Employment Security Office. Written evidence that an order has been placed or is on active file shall be maintained in the employer's records.

(e) No learner shall be hired under a learner certificate while abnormal labor conditions such as a strike, lockout, or other similar condition, exist in the plant.

(f) Except as otherwise specified in applicable supplemental industry regulations, the number of hours of previous employment must be deducted from the authorized learning period if within the past three years a learner has been employed in a given occupation and industry for less than the total number of hours authorized as a learning period. There shall also be deducted from the authorized learning period all such hours of employment or training in vocational training schools or similar training facilities.

(g) Under no circumstances will certificates be granted authorizing the employment of learners at subminimum wage rates as homeworkers, or in maintenance occupations such as watchman or porter, or in operations of a temporary or sporadic nature.

(h) No provision of any learner certificate shall excuse noncompliance with higher standards applicable to learners which may be established under any other State law or any Federal law, or trade union agreement.

(7) Employment records to be kept. In addition to other records required under the record-keeping regulations, the employer shall keep the following records specifically relating to learners employed at subminimum wage rates:

(a) Each worker employed as a learner under a learner certificate shall be designated as such on the payroll re-

cords kept by the employer. All such learners shall be listed together as a separate group on the payroll records, with such learners occupation being shown.

(b) The employer shall also obtain at the time of hiring and keep in his records a statement signed by each such learner showing all applicable experience which the learner may have had in the industry in which he is employed during the preceding three years, or as otherwise required in the applicable supplemental industry regulations. The statement shall contain the dates of such previous employment, names, and addresses of employers, the occupation or occupations in which the learner was engaged and the types of products upon which the learner worked. The statement shall also contain information concerning pertinent training in vocational training schools or similar training facilities, including the dates of such training and the identity of the vocational school or training facility. If the learner has had no applicable experience or pertinent training, a statement to that effect signed by the learner should likewise be kept in the employer's records.

(c) The employer shall maintain a file of all evidence and records, including any correspondence, pertaining to the filing or cancellation of job orders placed with the local State Employment Security Office.

(d) The records required in this section, including a copy of any special certificate issued, shall be kept and made available for inspection at all times for at least three years from the last effective date of the certificate.

History: Sec. 39-3-403, MCA; IMP, Sec. 39-3-406, MCA; Eff. 12/31/72.