Liability & Legal Issues
Addressing Liability/Worker’s Compensation Issues
When young people are engaged in work-based learning activities, some liability issues exist for the school and the worksite. The chart below is an overview of the liability insurance and worker’s compensation coverage that businesses, agencies, and schools should possess in order to protect these young people. These requirements are similar to those an employer would have for employees, volunteers and visitors to their facility.
(This is a general description of the requirements and does not carry the force of legal opinion. Businesses and schools should consult their insurance carriers prior to implementing a work-based learning program.)
Liability Insurance and Worker’s Compensation Chart
NOTE: If a student is participating in a family owned/operated work-based learning experience or has established her or his own business, the appropriate insurance provider needs to be consulted.
Steps for Employers Engaged in Work-Based Learning Experiences
The following suggestions will assist in dealing with work-based learning liability and worker’s compensation issues:
- Consult with your insurance carrier early in the development of work-based learning experiences;
- Presume worker’s compensation coverage is necessary when the employee is a student in a work-based learning activity;
- Be prepared to provide the school representative with written documentation of your liability insurance and worker’s compensation coverage;
- Sign and implement the Individual Work-Based Training Agreement. This agreement lists the roles and responsibilities of the employer, student, parent/guardian and school representative;
- Identify with the school representative what safety and health training the school and you will be responsible for when employing a student;
- Document all the training you provide for safety and health in the workplace;
- Identify the employee/employees who are responsible for supervising the student in your worksite;
- Provide mentorship training for the employee/employees supervising a young person;
- Prevent students from engaging in any work that is prohibited by the U.S. Department of Labor Fair Labor Standards Act (FLSA) and the Nebraska Child Labor Laws; and
- Request the school representative visit the worksite prior to placing the student and during the terms of the Individual Training Agreement.
Federal Employment Relationship Defined
Employment means engagement in an occupation for money or other valuable consideration. Generally speaking, a student in a work-based learning situation is an employee unless all of the following criteria are met:
1. The employer derives no benefit from the activities of the student.
A student receives ongoing instruction at the worksite and is closely supervised throughout the experience. Any productive work performed is offset by the burden to the employer for the training and supervision provided. The Department of Labor uses the following three-part test to determine there has been no benefit to the employer:
a. There has been no displacement of employees, vacant positions have not been filled, employees have not been relieved of assigned duties, and the students are not performing services.
b. The student is under continued and direct supervision by either a representative of the school or by an employee of the business.
c. The period of time spent by the student at any one site or in any one distinguishable job are of limited duration.
2. The experience is of short duration.
a. Career exploration is generally limited to 5 hours per job experienced
b. Career assessment is generally limited to 90 hours per job experienced.
c. Work-related training is generally limited to 120 hours per job experienced.
3. The student and parent/guardian understand that the student is not entitled to a job at the end of the experience.