1. Requirements

Section 511 prohibits an employer holding a section 14(c) certificate (“employer”) from paying a youth with a disability (age 24 or younger) hired after July 22, 2016, less than the Federal minimum wage unless it obtains, verifies, and maintains copies of documentation that the youth received and completed all of the section 511 services prior to being paid a sub-minimum wage (“pre-SMW services”). In summary, the required pre-SMW services are: 1) transition and/or pre-employment transition services, 2) VR ineligibility determination or services, and 3) career counseling services. See 29 U.S.C. 794g(a) and (e) and FAB 2016-2. These services are designed to improve access to competitive integrated employment for youth with disabilities. DSUs are required to provide and/or collect documentation that demonstrates the youth’s completion of each of the required pre-SMW services and provide the youth with documentation of the final determination or activity completed, including a cover sheet that itemizes each of the documents that have been provided. See 34 C.F.R 397.10(c)(3).

2. Timing

The youth must receive and complete all three pre-SMW services required by section 511 prior to an employer paying that individual SMWs. If an employer pays a youth SMWs before reviewing, verifying, and maintaining documentation that the youth has completed these preSMW services, WHD will document the violation and determine the appropriate back wage remedy for all hours worked needed to bring the worker to the full Federal minimum wage. The employer must continue to pay at least the full Federal minimum wage until the youth completes the services or until the youth turns age 25. Importantly, an employer must pay the full Federal minimum wage to youth who have declined offered services and therefore have not received the required pre-SMW services.

3. Documentation

The employer may obtain the section 511 document cover sheet that itemizes each of the documents that have been provided to the youth and any appropriate supporting documentation from the youth or, with the informed written consent of the youth or the youth’s representative, from the DSU. In an investigation, WHD will ask the employer to provide a copy of the cover sheet created by the DSU for each youth who was paid SMWs during the investigative period. If the employer is unable to provide DSU cover sheets and any appropriate supporting documentation or equivalent records for each youth, or if the documentation is incomplete, the employer is not permitted to pay SMWs to the affected youth until such time as the youth has received the services and the employer has obtained, reviewed, and maintains a copy of appropriate documentation of the services or the youth turns age 25.

The DSU is required to provide documentation showing the completion of pre-SMW services to the individual who received the services. It is the employer’s responsibility to review, verify, and maintain copies of the documentation. The original documentation belongs to the individual and thus different employers may rely on the same documentation if the youth moves from one employer to another. However, each employer remains responsible for reviewing, verifying, and maintaining documentation showing that the youth has completed the required pre-SMW services and cannot pay the youth SMWs until it has done so.

1. Requirements

Employers may not pay SMWs until they have reviewed information regarding CCIR services. DSUs must provide each worker CCIR services at required intervals (see timing information below) and must provide documentation to each worker upon completion. See 34 C.F.R. 397.40(d). A DSU may contract with other public or private service providers to provide these services, however, the contractor providing the services on behalf of the DSU may not be an employer who holds a section 14(c) certificate. See 34 C.F.R. 397.40(e). Employers who review such documents and have questions as to their sufficiency (e.g., if the documentation lacks dates that the CCIR services were given, does not indicate which services were provided, or if the documentation is not signed by a representative of the DSU) should seek verification and corrected or updated documentation, as appropriate, from the DSU. The employer may choose to contact the DSU directly or may ask the worker who received the services to do so. If the employer contacts the DSU directly, the DSU may provide information to the employer with the informed written consent of the worker or the worker’s representative. See 34 C.F.R. 361.38.

2. Timing

“Grandfathered” employees: Section 511 prohibits employers from continuing to pay SMWs to an employee who was employed at SMWs prior to July 22, 2016, unless the employee receives CCIR services annually for the duration of SMW employment. See 29 U.S.C. 794g(c)(2). The annual period for these employees will always begin on July 22 of each year. The services can be received at any time during the one-year period (i.e., July 22 of the first year through July 21 of the following year) and do not have to occur at the same time from year to year. The deadline for services does not change based on the actual date the CCIR services are provided.

“New hire” employees: An employee being paid SMWs who was hired on or after July 22, 2016, must receive CCIR services once every six months for the first year of SMW employment, and annually thereafter, for the duration of SMW employment. For enforcement purposes, WHD will consider the “first year of SMW employment” per employee to be the 12 months (365 days) after the date SMW work begins as long as the employee remains employed with their employer for the full year.

The deadline for an employee to receive services is based on the anniversary of the date of their employment at SMWs with the employer. As with a grandfathered employee, the services can be received at any time during the six-month or one-year period and do not have to be provided at the same time from year to year. The actual date the CCIR services are provided in a given year does not change the deadline by which the employee must receive the services.

• Example: If Maggie, age 27, begins SMW employment on October 10, 2021, the employer must review documentation and verify that she receives CCIR services between October 10, 2021 and April 9, 2022 (first six months), again between April 10, 2022 and October 9, 2022 (second six months), again between October 10, 2022 and October 9, 2023 (annual), and again by October 9 for each subsequent year she continues in SMW employment (annually thereafter) with her employer.

The employer is prohibited from paying SMWs unless the employee receives the CCIR services in a timely manner. Where the deadline for CCIR services is missed, the employer is not permitted to pay SMWs for any hours worked past the employee’s applicable deadline until such time as the CCIR services are provided. Importantly, the DSU’s failure to provide services to workers does not excuse the employer’s non-compliance with the requirements of section 511 nor may the employer pay SMWs to a worker who has declined CCIR services and therefore has not received the required services.

An employer may arrange with the DSU to provide CCIR services to all employees on a recurring basis. This practice would be acceptable for meeting the CCIR provisions of section 511 so long as the services are received prior to the applicable deadline for each employee paid SMWs.

• Example: Based on the employment dates of Maggie above (hired October 10, 2021): She could receive CCIR services on March 31, 2022, meeting the first six-month requirement, and then again on July 21, 2022, meeting the second six-month requirement. If she subsequently received CCIR services each year in July (or any time prior to October 9), based on the employer’s arrangement with the DSU, the timing requirement for Maggie’s CCIR services would be satisfied.

When an employee has been previously employed at SMWs by another employer:

If an employer has evidence or documentation that a newly hired employee was previously employed at SMWs with a prior employer, and worked at SMWs for at least a year, that employee is no longer considered to be in their “first year of SMW employment” and would not be required to receive CCIR services during the first six months with the new employer. The newly hired employee would be required to receive the required services annually based on the date of hire at SMWs by the new employer.

• Example: Jay, 30 years old, began SMW employment at ABC Restaurant on January 1, 2018. Jay received all necessary services under section 511 during the time that he worked at ABC. Jay quit working at ABC on January 7, 2019, and went to work at XYZ Restaurant on February 2, 2019, also being paid SMWs. If XYZ is able to obtain documentation that Jay completed his “first year of subminimum wage employment,” XYZ would be required to ensure that Jay receives CCIR services within one year from his hire date at XYZ (i.e., by February 1, 2020), and annually thereafter by February 1.
• Example: Changing the facts from the example above, if Jay worked for ABC for less than a year—such as January 1, 2018, through December 1, 2018—he has not completed his “first year of SMW employment.” When Jay begins SMW work at XYZ Restaurant on February 2, 2019, XYZ must ensure he receives the required services once every six months for the first year of SMW employment with XYZ, and annually thereafter, i.e., by August 1, 2019, by February 1, 2020, and by February 1 during each year of SMW employment at XYZ.

When an employee has been previously employed at SMWs by the same employer:

Breaks in an employee’s work at SMWs at a single employer due to lack of work or temporary closures where there is the expectation that an employee will return to work do not affect the timing requirement for CCIR services.

• Example: Katlyn began SMW work for 123 Facilities on January 1, 2018. She received all necessary services under section 511 in May 2018, again in August 2018, and again the following year in November 2019. 123 Facilities then temporarily shut down on January 2, 2020, due to lack of work. 123 Facilities believes Katlyn will return to work when they reopen. On May 31, 2020, they reopen and resume SMW contract work. The date by which Katlyn is due services does not change; it remains December 31 of each year.
• Example: Lucia, another employee at 123 Facilities, has a CCIR services deadline of April 28 each year. Lucia had not completed the required CCIR services for the year when 123 Facilities closed on January 2, 2020. When 123 Facilities reopens on May 31, 2020, after Lucia’s deadline to receive services, 123 Facilities may not pay her SMWs until it verifies that she has received all necessary services under section 511. Any hours worked before she receives all required services must be paid at full Federal minimum wage or higher.

3. Documentation

Employers must review and verify that each employee has received CCIR services and be able to demonstrate their compliance with this requirement for each employee paid SMWs in order to pay SMWs to that employee. See 29 U.S.C. 794g(e)(2)(A) and FAB 2016-2. Employers should maintain copies of the documentation that the DSU provided to each employee upon completion of the CCIR services. In an investigation, WHD will request proof from the employer that each employee being paid SMWs received CCIR services on a timely basis.

Where an employee who is paid SMWs did not receive CCIR services on a timely basis, as required, the employer must pay the employee at least the Federal minimum wage until the services have been provided. If the employer fails to do so, WHD will cite a violation for each affected employee, require the payment of back wages as necessary to bring the employee to the full Federal minimum wage for all hours worked in violation of the law, and ensure that the employer understands how to comply going forward. In some circumstances the DSU may be unable to timely provide services to one or more employees for a variety of reasons. Where a DSU is delayed in providing CCIR services, employers are strongly encouraged to document their contact(s) with the DSU in attempting to facilitate CCIR services occurring at the appropriate intervals; however, the DSU’s failure to provide services does not excuse the employer’s failure to comply with the requirements of the law.

Documentation showing the completion of CCIR services is required to be provided by the DSU to the worker who received the services. It is the employer’s responsibility to review and verify the documentation. The original documentation belongs to the worker and thus different employers may rely on the same documentation if the worker moves from one employer to another.

1. Requirements

In order to comply with this requirement, the employer is required to inform each employee paid SMWs about locally available training opportunities where the employee can learn about 1) selfadvocacy, 2) self-determination, and 3) peer mentoring. As a whole, the information the employer provides must cover all three of these topic areas, but any single training opportunity does not have to address all the topics. The information should be sufficient to provide the employee with the information needed for them to take action to pursue each of those services, if desired. Each employer is responsible for providing this information regularly to all employees paid SMWs and is responsible for ensuring such information is specific to the local geographic area. The information about training opportunities related to self-advocacy, self-determination, and peer mentoring is separate and distinct from the CCIR services that DSUs are required to provide.

Meaning of terms:

To identify and understand the meaning of the terms self-advocacy, self-determination, and peer mentoring, WHD relies on their usage by the U.S. Department of Education, Rehabilitation Services Administration (RSA). RSA issued final regulations setting forth requirements for the DSUs and state and local educational agencies to comply with their obligations under section 511. See 34 C.F.R Part 397. In the preamble to those regulations, RSA explains that the terms “self-advocacy, self-determination, and peer mentoring training” are used as they are “commonly understood.” 81 FR 55714 (August 19, 2016). As RSA states in the preamble:

• As commonly understood, “peer mentoring” generally involves individuals with disabilities providing guidance, counseling, and advice to other individuals with disabilities based upon their own experiences and training and the experiences of others they know. “Self-advocacy” generally involves developing the skills, knowledge, and confidence to stand up for oneself and using appropriate means to obtain one’s goals. Finally, “self-determination” generally means having the abilities, attitudes, skills, and opportunities to play an active and prominent role in living and planning one’s life and future.

81 FR 55714 (emphasis added).

WHD will rely on this usage in determining whether the information provided by employers about training opportunities includes all three of the required training topics.

Appropriate sources of training:

The training opportunities may be provided by applicable Federal or state programs or other sources but may not be provided by an entity that has any financial interest in the individual’s employment outcome. See 29 U.S.C. 794g(c)(1)(B). This limitation provides an important protection to guard against potential bias in the information provided and ensure workers receive up-to-date, valuable information from organizations without a financial interest in the payment of SMWs. RSA has interpreted this provision to mean that these training opportunities must not be provided by any employer that holds a 14(c) certificate. See 34 C.F.R 397.40(b)(2) An employer may not comply with this requirement by providing its own training opportunities but must instead provide information about training offered by other appropriate programs or sources. Thus, if an employer regularly provides counseling or rehabilitative services that include self-advocacy, self-determination, and peer mentoring training, and offers such training to its employees, that training would not meet this section 511 requirement.

WHD generally does not consider distinct members of the same national service organization, such as The Arc and Goodwill Industries, as a single “entity” or enterprise. An employer who is affiliated with a national organization (Affiliate A) may offer information about appropriate training opportunities provided by a different affiliate (Affiliate B) within the same national organization only if Affiliate B does not hold a section 14(c) certificate. Similarly, if a state agency runs a facility that holds a section 14(c) certificate, the employer may provide information about self-advocacy, self-determination, and peer mentoring training opportunities available from the state DSU or another local or state program.

• If the employer does not have information on where these services can be obtained, the employer may contact the DSU or other local organization to request assistance in developing information about training opportunities in the local community. If a DSU voluntarily provides information about self-advocacy, self-determination, and peer mentoring training opportunities, along with CCIR services, the employer is still responsible for informing each employee paid SMWs about appropriate training opportunities as required by section 511.

Small business exemption:

Under section 511’s small business exemption, employers with fewer than 15 employees may satisfy the requirement to inform employees receiving SMWs about local self-advocacy, selfdetermination, and peer mentoring training opportunities by referring those employees to the DSU to receive the training opportunity information. See 29 U.S.C. 794g(c)(3) and 34 C.F.R. 397.40(b). The 15-employee count includes all employees of the employer, whether or not they have disabilities or are paid SMWs.

2. Timing

The timing requirement for an employer’s responsibilities to provide information about selfadvocacy, self-determination, and peer mentoring training opportunities are identical to the timing requirement described above for CCIR services. Consistent with that section, “grandfathered” employees must receive information about training opportunities annually for the duration of SMW employment. The annual period for these employees will always begin on July 22 of each year. “New hire” employees must receive information about training opportunities once every six months for the first year of SMW employment, and annually thereafter, for the duration of SMW employment. The deadline for these employees to receive services is based on the anniversary of the date of their employment at SMWs with the employer.

The CCIR services and employer’s responsibilities to provide information about self-advocacy, self-determination, and peer mentoring training opportunities need not occur at the same time, but share the same deadlines.

• Example: Naomi, aged 26, was a new hire on March 1, 2020, and must receive both CCIR services (from the DSU) and be informed about self-advocacy, self-determination, and peer mentoring training opportunities (from the employer) by August 31, 2020 (i.e., first six months). If Naomi received CCIR services on June 1, 2020, and information about self-advocacy, self-determination, and peer mentoring training opportunities on August 20, 2020, the employer would be able to continue payment of SMWs to Naomi because she received both section 511 services by her initial deadline of August 31, 2020.

3. Documentation

When investigating compliance, WHD will request that employers explain how they have complied with this provision of section 511 during the investigation period and review any relevant documentation the employer can provide. While there is no prescribed method for an employer to document that it has timely informed employees paid SMWs about self-advocacy, self-determination, and peer mentoring training opportunities available in the local area, documentation is important to demonstrate compliance.

The following scenarios provide two examples of methods that employers may use to demonstrate compliance as well as one example that does not sufficiently demonstrate compliance.

• Example: An employer holds monthly meetings with all workers to review each worker’s training and support needs. During this meeting, the employer provides each employee with a packet containing information about appropriate local organizations that provide various opportunities for individuals. Each organization provides opportunities to learn more about self-advocacy, or self-determination, or peer mentoring. Some organizations may provide opportunities on more than one of these topics. At the meeting, the employer discusses the information contained in the packet. The information includes the names of the organizations, how to contact them (e.g., address, telephone number, website, and name of person to contact at the organization), and brief descriptions of the services the organizations provide. Included on the list are organizations that provide self-advocacy, self-determination, and peer mentoring opportunities. The employer then has each employee sign a document confirming that the information was discussed, and that the packet of information was provided. The employer can show WHD a copy of the packet and the signed acknowledgment by each employee paid SMWs. This employer’s practice would be sufficient to demonstrate compliance with this provision of section 511. In this example, the employer is providing the required information more frequently than section 511 requires, but the employer may use its regularly scheduled meetings to ensure timely compliance with this requirement.
• Example: Once every six months, an employer invites a local non-profit to conduct a presentation on local training opportunities in self-advocacy, self-determination, and peer mentoring. The employer provides each employee with a flyer with a summary of the information that was presented and has a sign-in sheet to track and ensure that all employees paid SMWs attend. If an employee is absent, the employer promptly provides the employee with an information packet containing the referral resources about the local self-advocacy, self-determination, and peer mentoring training opportunities available and explains the information. This employer’s practice would be sufficient to demonstrate compliance with this provision of section 511 for each attendee paid SMWs as long as the information is provided at the required intervals for each employee, as discussed above.
• Example: An employer posts several documents about self-advocacy, selfdetermination, and peer mentoring training opportunities on a bulletin board near the entrance of the building. Employees walk past the bulletin board daily. This alone would not be sufficient to demonstrate compliance with this provision of section 511. The statutory requirement is not a posting requirement, but rather the law requires that workers be informed of the necessary information.

The employer’s responsibilities to provide information about self-advocacy, self-determination, and peer mentoring training opportunities are separate and distinct from the DSU’s responsibilities to provide CCIR services. In instances where the DSU has been unable to timely provide CCIR services, the employer remains responsible for providing the required information about self-advocacy, self-determination, and peer mentoring training opportunities in a timely manner. In any investigation, WHD will review the documentation when determining compliance.

Unlike the documentation for CCIR services, documentation showing that an employer has provided information about self-advocacy, self-determination, and peer mentoring training opportunities may not be used by a different or subsequent employer. Each employer is responsible for providing this information regularly to each employee receiving SMWs and is responsible for ensuring such information is specific to the local geographic area. Therefore, an employee may not take documentation showing that a previous employer provided information about self-advocacy, self-determination, and peer mentoring training opportunities to another employer and have that documentation satisfy the new employer’s requirement to provide this information. Section 511 requires each employer to inform each employee paid SMWs about these training opportunities available in the employee’s geographic area, and thus if the individual goes to a new SMW employer, it is the responsibility of that new employer to comply with the section 511 provisions with regard to training opportunities. See 29 U.S.C. 794g(c)(1)(B).

If the employer claims the small business exemption, WHD will verify the number of employees and ask the employer for evidence that it complied with this provision by contacting the DSU or taking other appropriate action to refer employees to the DSU.