53-20-164. Resident labor. The following rules govern resident labor:
     (1) A resident may not be required to perform labor that involves the operation and maintenance of the facility or for which the facility is under contract with an outside organization. Privileges or release from the facility may not be conditioned upon the performance of labor covered by this provision. Residents may voluntarily engage in such labor if the labor is compensated in accordance with the minimum wage laws of the Fair Labor Standards Act of 1938, 29 U.S.C. 206, as amended.
     (2) A resident may not be involved in the care (feeding, clothing, bathing), training, or supervision of other residents unless he:
     (a) has volunteered;
     (b) has been specifically trained in the necessary skills;
     (c) has the humane judgment required for such activities;
     (d) is adequately supervised; and
     (e) is reimbursed in accordance with the minimum wage laws of the Fair Labor Standards Act of 1938, 29 U.S.C. 206, as amended.
     (3) Residents may be required to perform vocational training tasks that do not involve the operation and maintenance of the facility, subject to a presumption that an assignment of longer than 3 months to any task is not a training task, provided the specific task or any change in task assignment is:
     (a) an integrated part of the resident's habilitation plan and approved as a habilitation activity by the qualified mental retardation professional and the individual treatment planning team responsible for supervising the resident's habilitation; and
     (b) supervised by a staff member to oversee the habilitation aspects of the activity.
     (4) Residents may voluntarily engage in habilitative labor at nonprogram hours for which the facility would otherwise have to pay an employee, provided the specific labor or any change in labor is:
     (a) an integrated part of the resident's habilitation plan and approved as a habilitation activity by the qualified mental retardation professional and the individual treatment planning team responsible for supervising the resident's habilitation;
     (b) supervised by a staff member to oversee the habilitation aspects of the activity; and
     (c) compensated in accordance with the minimum wage laws of the Fair Labor Standards Act of 1938, 29 U.S.C. 206, as amended.
     (5) If a resident performs habilitative labor that involves the operation and maintenance of a facility but due to physical or mental disability is unable to perform the labor as efficiently as a person not so physically or mentally disabled, then the resident may be compensated at a rate that bears the same approximate relation to the statutory minimum wage as his ability to perform that particular job bears to the ability of a person not so afflicted.
     (6) Residents may be required to perform tasks of a personal housekeeping nature, such as the making of one's own bed.
     (7) Deductions or payments for care and other charges may not deprive a resident of a reasonable amount of the compensation received pursuant to this section for personal and incidental purchases and expenses.
     (8) Staffing must be sufficient so that the facility is not dependent upon the use of residents or volunteers for the care, maintenance, or habilitation of other residents or for income-producing services. The facility shall formulate a written policy to protect the residents from exploitation when they are engaged in productive work.

     History: En. 38-1229 by Sec. 29, Ch. 468, L. 1975; R.C.M. 1947, 38-1229; amd. Sec. 11, Ch. 485, L. 1979; amd. Sec. 24, Ch. 381, L. 1991.