January 15, 2021

Robert Feild 

Senior Staff Attorney

The Department of Labor and Industry

600 E. Main Street, Suite 207

Richmond, 23219 

Dear Mr. Feild,

This letter offers comments from the Commonwealth Institute for Fiscal Analysis (“TCI”) on the Department of Labor and Industry’s (DOLI) proposed training wage standards, pursuant to § 40.1-28.10 of the Code of Virginia.

We commend DOLI’s efforts to date and support several critical provisions in the draft rule. For example, we support the provision that precludes employers from using the training wage in a manner that “induces, encourages, or assists any displacement or partial displacement of other workers...” Similarly, TCI supports the provision requiring employers to make “a good faith effort to continue to employ the employee after the training period of the training wage expires.” Finally, we strongly agree that the training wage should never be applied where the goal of the “training” is merely to develop “manual dexterity and high production speed in repetitive operations.” 

As DOLI works to finalize the rule, to further strengthen the proposed regulations, we offer suggestions in the following areas: 

• Clarify The 90-Day Eligibility Period. The regulations could more clearly state that the 90-day training period can only be applied once per individual, and that any change in employment classification or duties by the employer does not extend the period. We further suggest clarifying that the 90-day period be based on calendar days, rather than business days.

• Amend The “Degree of Skill” Language. The regulations, as currently written, state that the training wage only applies to occupations that “require a sufficient degree of skill to necessitate a learning period.” This language is both broad and subjective, potentially making all occupations training-wage eligible. To create a more workable standard for DOLI, that language should be narrowed. For example, we would recommend refining the language to be  a sufficient degree of “technical” skill.

• Directly Address Seasonal Employment. While the regulations state that “[t]he employer shall not hire the employee at the training wage unless there is a reasonable expectation that there will be regular employment,” additional clarifying language should be included to more directly address the general inapplicability of the training wage to seasonal and temporary employment.

• Specify An Age Limit. Most states with a training wage do not apply it to the entire workforce, as these proposed regulations do, which is both unusual and harmful to Virginia's working families. This is a particular concern in the COVID-19 economy, in which many workers have been forced to find new jobs in new fields. 

We thank you for the opportunity to comment on the proposed rule. In the event that you have questions in response to our suggestions above, please do not hesitate to reach out. 

Sincerely, 

Michael Cassidy

President and CEO

The Commonwealth Institute for Fiscal Analysis

1329 E Cary St., #200

Richmond, Va. 23219