On December 18, 2015, President Barack Obama signed the Omnibus federal spending bill — HR 2029 containing a provision to defund the implementation and enforcement of the President’s 2014 Executive Order 13658. The Executive Order established a minimum wage for contractors of $10.10 for workers on Federal construction and service contracts.

While American Camp Association (ACA) analysis of the Executive Order concluded that the majority of camps with Outfitter Guide permits to use public lands were not impacted by the Executive Order, some federal officials in select areas of the country informed camps that they would need to comply.

This new provision serves as a stop gap to implementation and enforcement until such time as a permanent change in law is made to bring clarity to the issue. Camps can expect that in 2016, new contracts will not include the language contained in the Executive Order. As always, camps must comply with all other applicable labor laws.

Details

Omnibus Bill HR2026 – Signed into law on December 18, 2015

   Page 885, Line 16

      DIVISION H—DEPARTMENTS OF LABOR, HEALTH AND HUMAN SERVICES, AND EDUCATION, AND RELATED AGENCIES APPROPRIATIONS ACT, 2016

SEC. 110. None of the funds made available by this Act may be used to implement, administer, or enforce the Establishing a Minimum Wage for Contractors regulation published by the Department of Labor in the Federal Register on October 7, 2014 (79 Fed. Reg. 60634 et seq.), with respect to Federal contracts, permits, or other contract-like instruments entered into with the Federal Government in connection with Federal property or lands, specifically related to offering seasonal recreational services or seasonal recreation equipment rental for the general public: Provided, that this section shall not apply to lodging and food services associated with seasonal recreation services.

Background

President Barack Obama issued Executive Order 13658 on February 12, 2014 — “Establishing a minimum wage for contractors” to raise the minimum wage to $10.10 for workers on Federal construction and service contracts. Subsequently, the US Department of Labor, Wage and Hour Division, released a Fact Sheet: Final Rule to Implement Executive Order 13658.  Furthermore, a Guidance Document was submitted into the Federal Register on October 7, 2014.

The Fact Sheet on the Final Rule to Implement Executive Order 13658 expressly described workers “that are not covered by the Executive Order and the final rule” to be:

The Executive Order and the final rule contain a few limited exclusions from coverage for certain workers. For example, workers who are employed in a bona fide executive, administrative, or professional capacity and who consequently are exempt from the FLSA’s minimum wage and overtime requirements are not entitled to receive the Executive Order minimum wage. FLSA-covered workers performing “in connection with” covered contracts are also excluded from coverage of the Executive Order if they spend less than 20% of their work hours in a particular workweek performing in connection with covered contracts.

Thus, for camp programs:

• All camp employees who are employed in a bona fide executive, administrative, or professional capacity and who consequently are exempt from the FLSA’s minimum wage and overtime requirements are not included in this Executive Order.
• All camp employees who spend less than 20% of their work hours in a particular workweek performing in connection with a “covered contract” are not included in this Executive Order. 

On October 7, 2014, the Department of Labor issued guidance on the final rule. Contained within is language that makes clear that the seasonal exemption is still applicable:

• The Department’s proposed rule did not contain a general exclusion for seasonal workers or students. However, except with respect to workers who are otherwise covered by the SCA or the DBA, the proposed rule stated that this part does not apply to employees who are not entitled to the minimum wage set forth at 29 U.S.C. 206(a)(1) of the FLSA pursuant to 29 U.S.C. 213(a) and 214(a)–(b). Pursuant to this exclusion, the Executive Order does not apply to full-time students whose wages are calculated pursuant to special certificates issued under section 14(b) of the FLSA, unless they are otherwise covered by the DBA or SCA. The exclusion would also apply to employees employed by certain seasonal and recreational establishments pursuant to 29 U.S.C. 213(a)(3).

Resources and References

• American Camp Association Public Policy Position Statement on Public Lands
• Omnibus Spending Bill  - December 18, 2015
• Executive Order 13658
• Fact Sheet: Final Rule to Implement Executive Order 13658
• Final Rule Guidance – October 14, 2015
• McNamara-O’Hara Service Contract Act
• Davis-Bacon AcFair Labor Standards Act
• Fair Labor Standards Act Section 13(a)(3) Exemption for Seasonal Amusement or Recreational Establishments
• Public Law 95-151
• Outfitter Guide Permits

Photo courtesy of Sanborn Western Camps, Florissant, CO

On December 10, 2015, President Barack Obama signed into law the Every Student Succeeds Act (ESSA), a bipartisan bill to revise and replace No Child Left Behind and overhaul K-12 education. Read the entire text of the law. The American Camp Association and many partners in the out-of-school time community have been advocating for change to the country's K-12 education policy so that it recognizes the critical role out-of-school time programs play in the year-round education of the whole child.

The new law contains a number of exciting opportunities for camps and other out-of-school time providers to be welcomed and recognized as active participants in K-12 education — including the potential to receive grant funding. Both grant and partnership opportunities are detailed in the new law.  While much work needs to be done to understand and implement the new law, upon early review, we have identified the following opportunities:

• New opportunities for community-based organizations to partner with schools that are identified as  “targeted assistance schools” to “strengthen the academic program of the school though activities which may include expanded learning time, before- and after-school programs, and summer programs and opportunities.” (Title I, Sec. 1009)
• Expands the 21st Century Community Learning Centers program and provides more opportunities for community-based organizations to partner during “summer recess."  (Note that for some programs in Part B, only nonprofit organizations are eligible.) (Title IV, Part B)
• Funding to develop and implement programs and activities that support access to STEM activities including “hands-on learning” and “field-based or service learning” to enhance understanding of STEM subjects. (Title IV)
• Allowance for use of funds to support “well-rounded” educational opportunities, including the addition of environmental education programs. (Title IV, Part A Sec 4107)
• Environmental literacy programs are now also included among eligible programs for funding through 21st Century Community Learning Center grants. (Title IV)
• Opportunities for community-based organizations to partner to provide programs for "Indian, Native Hawaiian and Alaska Native" children that focus on problem solving and cognitive skills development, career preparation, and many other areas. (Title VI)
• Unique opportunities for community-based organizations to provide innovative programs and strategies for identifying and educating students who may not be served by traditional gifted and talented programs. (Title IV, Sec. 4644)
• Opportunities for community-based organizations to assist states in supporting high-quality and comprehensive educational programs and services during the summer that address the unique educational needs of migratory children. (Title I, Part C)
• Provisions for student support and academic enrichment grants. (Title IV, Part A, Sec 4101)

Next Steps

As we celebrate the advances in this new law, there is much work to be done for it to come to fruition. Next steps include:

• ACA and our out-of-school time partners will carefully review the law and provide education to camps regarding impact and opportunities.
• The U.S. Department of Education will begin the process of receiving input on the design of the grant programs described in Title IV.

This bill represents a major step forward, giving schools new opportunities to partner with camps and other out-of-school time organizations to ensure the best year-round education for our nation’s children.

Resources

• Every Student Succeeds Act - Full text of the law
• U.S. Department of Education - Laws and Guidance (here is where information will be updated as implementation proceeds)

The Bill

• Final version of Omnibus Bill
• Old versions:
• HR 695: Sponsored by Representatives Adam Schiff (CA-29) and Mike Bishop (MI-8) — was introduced on 1/24/2017 and has been referred to the House Committee on the Judiciary. House of Representatives Judiciary Committee UNANIMOUSLY passed the Child Protection Improvements Act (HR 695) on 3/22/2017.  PASSED BY THE HOUSE on MAY 22, 2017! Learn More 
• S.705: Sponsored by Senator Orrin Hatch (UT) and Al Franken (MN)  - was introduced 3/23/2017 and has passed through the Senate on 10/16/2017.  Learn More
• In the 111th Congress, this bipartisan bill passed through the House of Representatives by a vote of 412–4. In the 112th Congress, this bill passed through the Senate Judiciary Committee but was not considered on the floor of the Senate or House of Representatives.

Press Releases

• “There is nothing more important than keeping our children safe from harm, and this just-passed legislation does exactly that by closing a serious gap in federal law that makes it hard for afterschool programs, summer camps, day cares and other child-serving organizations to fully screen their paid and volunteer applicants. These groups are tasked with ensuring the safety of children day in and day out and should never have any difficulty when it comes to accessing the FBI background checks they need to ensure dangerous predators are not allowed anywhere near our kids.” -Senator Chuck Schumer. 
• From Senator Schumer (NY)
• From Representatives Schiff (CA) and Bishop (MI)
• From Senator Hatch (UT)
• From the American Camp Association, YMCA, and Mentor: The National Mentoring Partnership

The Solutions Presented in This Bill

The purpose of the bill is to close a gaping hole in the federal law that prevents camps, children’s groups, mentoring organizations, after-school programs and other organizations that work with children or vulnerable adults from gaining access to federal criminal background checks on employees and volunteers.

The Child Protection Improvements Act (CPIA) is a bipartisan bill that allows organizations serving vulnerable populations (children, the elderly, and individuals with disabilities) to conduct fast, accurate and affordable background checks on prospective volunteers and employees.

The FBI’s fingerprint-based background checks are a critical component of a comprehensive background check process, but thousands of organizations don’t have access or they are too expensive to afford.

CPIA builds on the success of the PROTECT Act’s Child Safety pilot which ran from 2003 until 2011. The pilot provided direct access to FBI fingerprint background checks for a variety of child-serving nonprofit organizations. Well over 100,000 background checks were performed during the pilot and found that more than 6 percent of the potential volunteers had criminal records of concern (based on criterion offenses established specifically for the pilot). Forty-two percent of the individuals with criminal records of concern had crimes in states other than where they were applying to volunteer – meaning that only a nationwide check would have flagged these individuals’ criminal records.

Specifically, CPIA amends the National Child Protection Act of 1993 to establish a permanent background check system. The bill:

• Ensures that organizations that serve vulnerable populations (children, the elderly, and individuals with disabilities) nationwide have access to FBI fingerprint background checks. No organization would be required to utilize these fingerprint checks under CPIA.
  Protects privacy rights by ensuring that the specifics of a criminal record are never disclosed without explicit consent by the volunteer or potential staff and provide an opportunity for individuals to correct errors in their records with the FBI.
• Does NOT authorize new spending. The program will be supported by the fees assessed for performing the background checks. Specifically, CPIA caps the cost of such a check at no more than $18.

At its core, CPIA is about providing information to organizations to enable discussion and informed decision-making about potential volunteers and staff wishing to work with children and other vulnerable populations.

Under CPIA, a criminal record would NOT automatically disqualify someone from volunteering.

CPIA directly benefits millions of children and adults across the nation who are involved with mentoring organizations, after-school programs, youth sports, summer camps, and more.

Data Points

Of the nearly 40,000 checks conducted in the pilot program, 6.1 percent of all applicants were found to have criminal records that rendered them unfit to work with children! (This included convictions of criminal sexual conduct with a child, aggravated criminal assault, rape, homicide, and other serious felonies.)

• Forty percent of these individuals had a criminal record from other states, meaning that only a nationwide check would have caught the criminal record.
• Twenty-six percent of these individuals showed a different name on their record than the one they used on their job application.

Organizations Endorsing This Legislation

• A World Fit for Kids
• After-School All-Stars
• Afterschool Alliance
• Amachi, Inc.
• American Camp Association
• Big Brothers Big Sisters of America
• Boys & Girls Clubs of America
• Catholic Charities USA
• College Mentors for Kids, Inc.
• Concerned Black Men National
• First Focus
• Friends of the Children
• Futures Without Violence
• Girl Scouts of the USA
• Girls Inc.
• MENTOR: The National Mentoring Partnership
• Mentors, Inc.
• My Sister’s Circle
• National Alliance for Faith and Justice
• National Center for Missing and Exploited Children
• National Human Services Assembly
• National PTA
• Spark
• Spark Action
• The First Tee
• U.S. Dream Academy
• U.S. Soccer Foundation
• Up2US
• YMCA of the USA