Bulletin #53     HONDA   Re-Introduced - Section 9                              07/24/2006

 

This is the eighth (and last) of a series of bulletins NHELD is preparing detailing, section by section, the exact language of HR3753/S1691, the “Home School Non-Discrimination Act of 2005”, or “HoNDA”, as proposed in the House and Senate.  The bulletins will provide the exact language from the bill, along with the exact text of the existing federal law that the bill proposes to amend. We apologize for the length of this bulletin, but having the exact text of the law is necessary to see what is being proposed.  This bulletin will also include NHELD’s comments on those provisions. 

Previous bulletins were Bulletin #44 - HONDA  Re-Introduced Examining Sections 1, 2 and 3 issued 10/17/2005

Bulletin #47 - HONDA  Re-Introduced examining Section 4(a)  issued 01/23/06

Bulletin #48 - HONDA Section 4(b) issued 01/24/2006

Bulletin #49 - HONDA Section 5 issued 04/26/2006

Bulletin #50 - HONDA Section 6 issued 05/28/2006

Bulletin #51 – HONDA Section 7 issued 07/24/2006

Bulletin #52 – HONDA Section 8 issued 07/24/2006

 

NHELD believes this entire bill should be killed and all previous federal laws already adopted having anything to do with the rights of parents to instruct their children at home should be repealed.

 

NHELD believes that there can be no compromises on any federal legislation regarding the rights of parents to instruct their children at home. 

 

NHELD believes all federal legislation regarding the rights of parents to instruct their children at home, no matter how beneficial the legislation appears, is wholly unconstitutional, in violation of the Tenth Amendment to the United States Constitution and must be defeated and/or repealed immediately.

 

As always, we strive to provide our readers with all of the facts so that they can reach their own conclusions. Please bear with us as we reprint the relevant and exact statute excerpts, which are both important and tedious at times to read.  Following the specifics of the legislation, we will provide you with a more reader-friendly analysis. 

 

Do you know what Section 9 of the HONDA bill does?  Here is the proposed legislation

SEC. 9. CLARIFICATION OF THE FAIR LABOR STANDARDS ACT AS APPLIED TO STUDENTS PRIVATELY EDUCATED AT HOME UNDER STATE LAW.

Section 3(l) of the Fair Labor Standards Act of 1938 (29 U.S.C. 203(l)) is amended by adding at the end the following: `The Secretary shall extend the hours and periods of permissible employment applicable to employees between the ages of 14 and 16 years of age who are privately educated at a home school (whether the home school is treated as a home school or a private school under State law) beyond such hours and periods applicable to employees between the ages of 14 and 16 years of age who are educated in traditional public schools.'.

 

 

Let’s take a look at the law that it seeks to change: Changes are in bold italics.

29 USC § 203 Definitions

http://www4.law.cornell.edu/uscode/search/display.html?terms=203%20definitions&url=/uscode/html/uscode29/usc_sec_29_00000203----000-.html

 

      As used in this chapter -

      (a) "Person" means an individual, partnership, association, corporation, business trust, legal representative, or any organized group of persons.

      (b) "Commerce" means trade, commerce, transportation, transmission, or communication among the several States or between any State and any place outside thereof.

      (c) "State" means any State of the United States or the District of Columbia or any Territory or possession of the United States.

      (d) "Employer" includes any person acting directly or indirectly in the interest of an employer in relation to an employee and includes a public agency, but does not include any labor organization (other than when acting as an employer) or anyone acting in the capacity of officer or agent of such labor organization.

      (e)(1) Except as provided in paragraphs (2), (3), and (4), the term "employee" means any individual employed by an employer.

      (2) In the case of an individual employed by a public agency, such term means -

      (A) any individual employed by the Government of the United States -

      (i) as a civilian in the military departments (as defined in section 102 of title 5), (ii) in any executive agency (as defined in section 105 of such title), (iii) in any unit of the judicial branch of the Government which has positions in the competitive service, (iv) in a nonappropriated fund instrumentality under the jurisdiction of the Armed Forces, (v) in the Library of Congress, or

      (vi) the Government Printing Office;

      (B) any individual employed by the United States Postal Service or the Postal Rate Commission; and

      (C) any individual employed by a State, political subdivision of a State, or an interstate governmental agency, other than such an individual -

      (i) who is not subject to the civil service laws of the State, political subdivision, or agency which employs him; and

      (ii) who -

      (I) holds a public elective office of that State, political subdivision, or agency,

      (II) is selected by the holder of such an office to be a member of his personal staff,

      (III) is appointed by such an officeholder to serve on a policymaking level,

      (IV) is an immediate adviser to such an officeholder with respect to the constitutional or legal powers of his office, or

      (V) is an employee in the legislative branch or legislative body of that State, political subdivision, or agency and is not employed by the legislative library of such State, political subdivision, or agency.

      (3) For purposes of subsection (u) of this section, such term does not include any individual employed by an employer engaged in agriculture if such individual is the parent, spouse, child, or other member of the employer's immediate family.

      (4)(A) The term "employee" does not include any individual who volunteers to perform services for a public agency which is a State, a political subdivision of a State, or an interstate governmental agency, if -

      (i) the individual receives no compensation or is paid expenses, reasonable benefits, or a nominal fee to perform the services for which the individual volunteered; and

      (ii) such services are not the same type of services which the individual is employed to perform for such public agency.

      (B) An employee of a public agency which is a State, political subdivision of a State, or an interstate governmental agency may volunteer to perform services for any other State, political subdivision, or interstate governmental agency, including a State, political subdivision or agency with which the employing State, political subdivision, or agency has a mutual aid agreement.

      (5) The term "employee" does not include individuals who volunteer their services solely for humanitarian purposes to private non-profit food banks and who receive from the food banks groceries.

      (f) "Agriculture" includes farming in all its branches and among other things includes the cultivation and tillage of the soil, dairying, the production, cultivation, growing, and harvesting of any agricultural or horticultural commodities (including commodities defined as agricultural commodities in section 1141j(g) of title 12), the raising of livestock, bees, fur-bearing animals, or poultry, and any practices (including any forestry or lumbering operations) performed by a farmer or on a farm as an incident to or in conjunction with such farming operations, including preparation for market, delivery to storage or to market or to carriers for transportation to market.

      (g) "Employ" includes to suffer or permit to work.

      (h) "Industry" means a trade, business, industry, or other activity, or branch or group thereof, in which individuals are gainfully employed.

      (i) "Goods" means goods (including ships and marine equipment), wares, products, commodities, merchandise, or articles or subjects of commerce of any character, or any part or ingredient thereof, but does not include goods after their delivery into the actual physical possession of the ultimate consumer thereof other than a producer, manufacturer, or processor thereof.

      (j) "Produced" means produced, manufactured, mined, handled, or in any other manner worked on in any State; and for the purposes of this chapter an employee shall be deemed to have been engaged in the production of goods if such employee was employed in producing, manufacturing, mining, handling, transporting, or in any other manner working on such goods, or in any closely related process or occupation directly essential to the production thereof, in any State.

      (k) "Sale" or "sell" includes any sale, exchange, contract to sell, consignment for sale, shipment for sale, or other disposition.

      (l) "Oppressive child labor" means a condition of employment under which (1) any employee under the age of sixteen years is employed by an employer (other than a parent or a person standing in place of a parent employing his own child or a child in his custody under the age of sixteen years in an occupation other than manufacturing or mining or an occupation found by the Secretary of Labor to be particularly hazardous for the employment of children between the ages of sixteen and eighteen years or detrimental to their health or well-being) in any occupation, or (2) any employee between the ages of sixteen and eighteen years is employed by an employer in any occupation which the Secretary of Labor shall find and by order declare to be particularly hazardous for the employment of children between such ages or detrimental to their health or well-being; but oppressive child labor shall not be deemed to exist by virtue of the employment in any occupation of any person with respect to whom the employer shall have on file an unexpired certificate issued and held pursuant to regulations of the Secretary of Labor certifying that such person is above the oppressive child-labor age. The Secretary of Labor shall provide by regulation or by order that the employment of employees between the ages of fourteen and sixteen years in occupations other than manufacturing and mining shall not be deemed to constitute oppressive child labor if and to the extent that the Secretary of Labor determines that such employment is confined to periods which will not interfere with their schooling and to conditions which will not interfere with their health and well-being.

The section below will be added to this section after the above in bold italics :

The Secretary shall extend the hours and periods of permissible employment applicable to employees between the ages of 14 and 16 years of age who are privately educated at a home school (whether the home school is treated as a home school or a private school under State law) beyond such hours and periods applicable to employees between the ages of 14 and 16 years of age who are educated in traditional public schools.

      (m) "Wage" paid to any employee includes the reasonable cost, as determined by the Administrator, to the employer of furnishing such employee with board, lodging, or other facilities, if such board, lodging or other facilities are customarily furnished by such employer to his employees: Provided, That the cost of board, lodging, or other facilities shall not be included as a part of the wage paid to any employee to the extent it is excluded therefrom under the terms of a bona fide collective-bargaining agreement applicable to the particular employee: Provided further, That the Secretary is authorized to determine the fair value of such board, lodging, or other facilities for defined classes of employees and in defined areas, based on average cost to the employer or to groups of employers similarly situated, or average value to groups of employees, or other appropriate measures of fair value. Such evaluations, where applicable and pertinent, shall be used in lieu of actual measure of cost in determining the wage paid to any employee. In determining the wage an employer is required to pay a tipped employee, the amount paid such employee by the employee's employer shall be an amount equal to -

      (1) the cash wage paid such employee which for purposes of such determination shall be not less than the cash wage required to be paid such an employee on August 20, 1996; and

      (2) an additional amount on account of the tips received by such employee which amount is equal to the difference between the wage specified in paragraph (1) and the wage in effect under section 206(a)(1) of this title.

      The additional amount on account of tips may not exceed the value of the tips actually received by an employee. The preceding 2 sentences shall not apply with respect to any tipped employee unless such employee has been informed by the employer of the provisions of this subsection, and all tips received by such employee have been retained by the employee, except that this subsection shall not be construed to prohibit the pooling of tips among employees who customarily and regularly receive tips.

      (n) "Resale" shall not include the sale of goods to be used in residential or farm building construction, repair, or maintenance: Provided, That the sale is recognized as a bona fide retail sale in the industry.

      (o) Hours Worked. - In determining for the purposes of sections 206 and 207 of this title the hours for which an employee is employed, there shall be excluded any time spent in changing clothes or washing at the beginning or end of each workday which was excluded from measured working time during the week involved by the express terms of or by custom or practice under a bona fide collective-bargaining agreement applicable to the particular employee.

      (p) "American vessel" includes any vessel which is documented or numbered under the laws of the United States.

      (q) "Secretary" means the Secretary of Labor.

      (r)(1) "Enterprise" means the related activities performed (either through unified operation or common control) by any person or persons for a common business purpose, and includes all such activities whether performed in one or more establishments or by one or more corporate or other organizational units including departments of an establishment operated through leasing arrangements, but shall not include the related activities performed for such enterprise by an independent contractor. Within the meaning of this subsection, a retail or service establishment which is under independent ownership shall not be deemed to be so operated or controlled as to be other than a separate and distinct enterprise by reason of any arrangement, which includes, but is not necessarily limited to, an agreement, (A) that it will sell, or sell only, certain goods specified by a particular manufacturer, distributor, or advertiser, or (B) that it will join with other such establishments in the same industry for the purpose of collective purchasing, or (C) that it will have the exclusive right to sell the goods or use the brand name of a manufacturer, distributor, or advertiser within a specified area, or by reason of the fact that it occupies premises leased to it by a person who also leases premises to other retail or service establishments.

      (2) For purposes of paragraph (1), the activities performed by any person or persons -

      (A) in connection with the operation of a hospital, an institution primarily engaged in the care of the sick, the aged, the mentally ill or defective who reside on the premises of such institution, a school for mentally or physically handicapped or gifted children, a preschool, elementary or secondary school, or an institution of higher education (regardless of whether or not such hospital, institution, or school is operated for profit or not for profit), or

      (B) in connection with the operation of a street, suburban or interurban electric railway, or local trolley or motorbus carrier, if the rates and services of such railway or carrier are subject to regulation by a State or local agency (regardless of whether or not such railway or carrier is public or private or operated for profit or not for profit), or

      (C) in connection with the activities of a public agency, shall be deemed to be activities performed for a business purpose.

      (s)(1) "Enterprise engaged in commerce or in the production of goods for commerce" means an enterprise that -

      (A)(i) has employees engaged in commerce or in the production of goods for commerce, or that has employees handling, selling, or otherwise working on goods or materials that have been moved in or produced for commerce by any person; and

      (ii) is an enterprise whose annual gross volume of sales made or business done is not less than $500,000 (exclusive of excise taxes at the retail level that are separately stated);

      (B) is engaged in the operation of a hospital, an institution primarily engaged in the care of the sick, the aged, or the mentally ill or defective who reside on the premises of such institution, a school for mentally or physically handicapped or gifted children, a preschool, elementary or secondary school, or an institution of higher education (regardless of whether or not such hospital, institution, or school is public or private or operated for profit or not for profit); or

      (C) is an activity of a public agency.

      (2) Any establishment that has as its only regular employees the owner thereof or the parent, spouse, child, or other member of the immediate family of such owner shall not be considered to be an enterprise engaged in commerce or in the production of goods for commerce or a part of such an enterprise. The sales of such an establishment shall not be included for the purpose of determining the annual gross volume of sales of any enterprise for the purpose of this subsection.

      (t) "Tipped employee" means any employee engaged in an occupation in which he customarily and regularly receives more than $30 a month in tips.

      (u) "Man-day" means any day during which an employee performs any agricultural labor for not less than one hour.

      (v) "Elementary school" means a day or residential school which provides elementary education, as determined under State law.

      (w) "Secondary school" means a day or residential school which provides secondary education, as determined under State law.

      (x) "Public agency" means the Government of the United States; the government of a State or political subdivision thereof; any agency of the United States (including the United States Postal Service and Postal Rate Commission), a State, or a political subdivision of a State; or any interstate governmental agency.

      (y) "Employee in fire protection activities" means an employee, including a firefighter, paramedic, emergency medical technician, rescue worker, ambulance personnel, or hazardous materials worker, who -

      (1) is trained in fire suppression, has the legal authority and responsibility to engage in fire suppression, and is employed by a fire department of a municipality, county, fire district, or State; and

      (2) is engaged in the prevention, control, and extinguishment of fires or response to emergency situations where life, property, or the environment is at risk.

 

NHELD’s Comments:

 

     The addition of the proposed language in this section of HoNDA is supposed to be fixing a problem with the existing federal law, but it is wholly unnecessary.  The federal law already simply says that employing children between the ages of 14 and 16 should not interfere “with their schooling”, “health and well-being.”  Clearly, the employment of children between the ages of 14 and 16 who are homeschooled would not interfere “with their schooling”, because the homeschooling could be done during hours when the child is not employed.  That argument is easily provable to any government official. 

 

If HoNDA is supposed to be fixing a problem with state law, again, it is wholly unnecessary.  Changing this particular federal law with this particular language does not “fix” a state law.  The proposed language does not in any way refer to applicability to state law.  More importantly, there is no reason to amend a federal law in order to fix a state law.  It makes much more sense simply to amend the state law.

 

In fact, the administrative regulations make it clear that “fixing” this federal law, would do nothing to “fix” a problematic state law.  The regulations specify clearly that employers must still comply with state law.

 

29CFR500.2 Compliance with State laws and regulations.

      Subpart A--General Provisions

      The Act and these regulations are intended to supplement State law; compliance with the Act or these regulations shall not excuse any individual from compliance with appropriate State law or regulation.

Another regulation also appears to support the theory that the law is concerned with full time students in brick and mortar schools.

29CFR519.2 Definitions.

      Subpart A--Retail or Service Establishments, and Agriculture

      (a) Full-time students. A full-time student for the purpose of this subpart is defined as a student who receives primarily daytime instruction at the physical location of a bona fide educational institution, in accordance with the institution's accepted definition of a full-time student. A full-time student retains that status during the student's Christmas, summer and other vacations. An individual who was such a student immediately prior to vacation will be presumed not to have discontinued such status during vacation if local law requires his/ her attendance at the end of the vacation. In the absence of such requirement his/her status during vacation will be governed by his/her intention as last communicated to his/her employer. The phrase in section 14(b) of the statute "regardless of age but in compliance with applicable child-labor laws," among other things, restricts the employment in a retail or service establishment to full-time students who are at least 14 years of age because of the application of section 3(1) of the Act. There is a minimum age requirement of 16 years in agriculture for employment during school hours and in any occupation declared hazardous by the Secretary of Labor (subpart E-1 of part 570 of this title.) In addition, there is a minimum age restriction of 14 years generally for employment in agriculture of a full-time student outside school hours for the school district where such employee is living while so employed, except (1) Minors 12 or 13 years of age may be employed with written parental or guardian consent or they may work on farms where their parents or guardians are employed, and (2) minors under 12 may work on farms owned or operated by their parents or with parental or guardian consent on farms whose employees are exempt from section 6 by section 13 (a)(6)(A) of the Act.

      (b) Bona fide educational institution. A bona fide educational institution is ordinarily an accredited institution. However, a school which is not accredited may be considered a bona fide educational institution in exceptional circumstances, such as when the school is too recently established to have received accreditation.

      (c) Retail or service establishment. Retail or service establishment means a retail or service establishment as defined in section 13(a)(2) of the Fair Labor Standards Act. The statutory definition is interpreted in part 779 of this chapter.

      (d) Agriculture. Agriculture means agriculture as defined in section 3(f) of the Fair Labor Standards Act. The statutory definition is interpreted in part 780 of this chapter.

      (e) Student hours of employment. Student hours of employment means hours during which students are employed under full-time student certificates issued under this part and is distinguished from hours of employment of students.

      (f) Employer. Section 519.4 permits an agricultural or retail or service establishment employer to employ not more than six full-time students at subminimum wages on forwarding an application but before certification. For this purpose, the term employer looks to the highest structure of ownership or control, and hence may be more than a single retail or service establishment or farm, e.g., the controlling conglomerate or enterprise would be the employer. With respect to public employers who operate retail or service establishments (see 29 CFR part 779), the employer means the highest structure of control such as the State, municipality, county or other political subdivision.

NHELD wants you to ask yourself these questions:

 

Why relinquish any more state rights concerning children to the federal government?  Why allow the federal government yet another opportunity to define the term, “home school”, and to regulate it?  Why is a supposed homeschool supportive organization trying to cede more authority to the federal government by proposing that Congress adopt federal laws regulating homeschooling?

 

 

Attorney Deborah Stevenson - Executive Director of National Home Education Legal Defense. – www.nheld.com or email : info@nheld.com

Judy Aron - Director of Research, NHELD – imjfaron@sbcglobal.net