TITLE 16. LABOR AND EMPLOYMENT

DEPARTMENT OF LABOR AND INDUSTRY

Final Regulation

Title of Regulation: 16VAC15-60. Regulation Governing On-The-Job Training Programs or Other Training Programs (adding 16VAC15-60-10, 16VAC15-60-20).

Statutory Authority: §§ 40.1-6 and 40.1-28.10 of the Code of Virginia.

Effective Date: March 13, 2024.

Agency Contact: Cristin Bernhardt, Regulatory Coordinator, Department of Labor and Industry, Main Street Centre, 600 East Main Street, Richmond, VA 23219, telephone (804) 786-2392, or email cristin.bernhardt@doli.virginia.gov.

Summary:

In response to Chapters 1204 and 1242 of the 2020 Acts of Assembly and pursuant to § 40.1-28.10 of the Code of Virginia, the new regulation provides the standards required for any employer on-the-job training program or other training program established in accordance with the requirements of § 40.1-28.10 and includes (i) the period for which the employee can be paid the training wage; (ii) the lowest the employer can pay an employee while training; (iii) when an employee, who is trained or substantially trained to do the job does not need the training, prohibition of the employer paying reduced wages simply by calling the first 90 days of employment a training period; (iv) prohibiting an employer from reducing the work of or firing current employees and replacing them with trainees at a reduced wage; and (v) what comprises an established training program. Two nonsubstantive clarifications were added since the proposed regulation.

Summary of Public Comments and Agency's Response: No public comments were received by the promulgating agency.

Chapter 60

Regulation Governing On-The-Job Training Programs or Other Training Programs

16VAC15-60-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings, unless the context clearly indicates otherwise:

[ "Approved apprenticeship program" means any program that has received approval from a federal or state apprenticeship agency. ]

"Employee" means any person or individual who is enrolled in an established employer on-the-job training program for a period not to exceed 90 days that meets standards set by this chapter.

"Employer" means any individual, partnership, association, corporation, or business trust or any person or group of persons acting directly or indirectly in the interest of an employer in relation to an employee. "Employer" includes the Commonwealth, any of its agencies, institutions, or political subdivisions, and any public body.

"Good faith effort" means done honestly, objectively, and with no deliberate intent to defraud.

"Limited responsibility" means job duties that are substantially less than the expectations for a worker who has achieved a sufficient degree of technical skill and has completed a job training program.

"Reasonable expectation" means a fair and sensible belief that something will happen.

"Seasonal employee" means an employee in an occupation that can be carried out only at certain seasons or fairly definite periods of the year and that does not include such occupations as may be carried on through an entire year.

"Similar or related experience" means knowledge or skill in a particular job or activity gained because the person has done that job or activity or a comparable job or activity for a meaningful period of time.

"Sufficient degree of technical skill" means the ability to use the processes, practices, techniques, or tools of a particular area of expertise enough to meet the purpose and requirements of the job.

"Temporary employee" means an employee supplied to a host employer and paid by a staffing agency whether or not the job is actually temporary.

16VAC15-60-20. Requirements for job training programs.

Beginning May 1, 2021, an employee enrolled in an established on-the-job or other training program may, for the first 90 calendar days after start of employment, be paid a training wage of not less than [ the federal minimum wage or ] 75% of the minimum hourly wage specified at § 40.1-28.10 of the Code of Virginia, [ whichever is greater, ] provided the following conditions are met:

1. The employee has been hired in and is receiving training for an occupation in which the employee has no previous similar or related experience;

2. The employer is not utilizing the employee being paid the training wage in a manner that causes, induces, encourages, or assists any displacement or partial displacement of any currently employed worker, including:

a. By displacing any previous recipient of the training wage;

b. By reducing hours of a currently employed worker;

c. By replacing a current or laid off employee with a trainee; [ or ]

d. [ By relocating operations resulting in a loss of employment at a previous workplace; or

e. ] In a manner that replaces, supplants, competes with, or duplicates any approved apprenticeship program;

3. The occupation for which the employee is receiving training must require a sufficient degree of technical skill to necessitate a learning period. The training must not be for the purpose of acquiring manual dexterity and high production speed in repetitive operations;

4. Such a training program must involve either formal instruction or on-the-job training during a period when the learners are entrusted with limited responsibility and are under supervision or guidance;

5. Such a training program shall describe in writing the nature and extent of the instruction and supervision provided;

6. The employer makes a good faith effort to continue to employ the employee after the period of the training wage expires;

7. The employer shall not hire the employee at the training wage unless there is a reasonable expectation that there will be employment, paying at or above the effective minimum wage, for the trainee upon the successful completion of the period of the training wage. The training wage shall not be applied to:

a. Seasonal employees; or

b. Temporary employees; and

8. An employee can only undergo one on-the-job training program or other training program established in accordance with § 40.1-28.10 [ of the Code of Virginia ] per employer.

a. A change in employment classification or duties required by the employer of the employee would not allow an employer to place that employee in another on-the-job training program or other training program established in accordance with § 40.1-28.10 [ of the Code of Virginia ].

b. An employee may be placed in another on-the-job training program or other training program established in accordance with § 40.1-28.10 [ of the Code of Virginia ] with a subsequent employer so long as placing that employee in the on-the-job training program or other training program established in accordance with § 40.1-28.10 [ of the Code of Virginia ] would not violate subdivision 1 of this subsection.