July 26, 2005
Author: , Esq.
As the heat of the summer continues to rise, so do the requirements for employers regarding “younger” workers, those workers the law refers to as minors. Overall, both the federal government and state governments maintain a strong interest in protecting minors in the workplace. Specifically, employers must properly schedule and/or assign tasks, and employers must provide “child” employees with a safe and healthy workplace. Employers typically remember laws exist (both federal and state laws) to protect adult workers; however, many employers fail to comply with the more stringent child labor laws. Even more important, employers may in fact comply with the federal law child labor laws and still violate a minor’s protected rights. How? Because most states have specific laws intended to protect minors; and in spite of full-compliance with federal law, employers must also fully comply with the state law, especially when the state law places a greater restriction on the employer. For example, generally speaking, child labor covers two categories: agricultural and non-agricultural labor. Employers must comply with the federal Fair Labor Standards Act (“FLSA”) which prohibits minors from working in non-approved occupations or during non-approved times and allows children as young as 10-years-old to harvest crops. Only 27 percent set of states set a minimum age below 14 years old, which means, while the federal law allows 10 – 13 year olds to harvest crops (by hand), 73% of states set a minimum age of 14 years or older which is more restrictive. Bottom line: when both federal and state law exist, the employer must comply with whichever law places a greater restriction on the employer which is usually state law.
Another example: 76 percent of states use 14 years of age as the minimum age for non-agricultural employment. Additionally, 23 states follow the federal guidelines for restricting 14- and 15-year-old non-agricultural employment when school is in session to a maximum of 18 hours per week. 33 states follow federal guidelines and do not set maximum hours for non-agricultural employment when school is in session for 16- and 17-year-olds.
36 states require some form of a work permit for minors to work and many states only require work permits for minors under the age of 16.
Unfortunately, states don’t always provide greater protection. For example, few states take work permits to the next level and create a link between the educational process and employment. No states require labor education for minors prior to entering into the workforce. Even worse, in spite of the dramatic changes in the workplace and technology (not to mention youth employment) over the last 50 years, many states have not updated their list of hazardous and prohibited occupations for minors, so employers must look to the federal law for guidance.
The federal FLSA allows minors, at least 16 years old, to work in any non-hazardous occupation during any hours and for any number of hours per day. Remember, this part of the law only applies to 16 year olds (or older). The law restricts employers when dealing with 14 and 15 year old minors. Specifically, those minors can only work after school for three hours per day and up to 18 hours per week. This varies slightly during the summer, when their maximum hours increase to eight per day and 40 per week, in other words, full-time work. If an employer wishes to employ a 14- or 15-year old, regardless of whether the child is in school or it is the summer, it may do so in any one of the following occupations.
1. Bagging and carrying out customers’ orders;
2. Cashiering, selling, modeling, art work, work in advertising departments, window trimming, and comparative shopping;
3. Clean up work, including using vacuum cleaners and floor waxers, and maintaining grounds, with the exception of power-driven mowers or cutters;
4. Cleaning vegetables and fruits; wrapping, sealing, labeling, weighing, pricing, and stocking goods, if the jobs are in an area separate from areas where meats are prepared, outside freezers, or meat coolers;
5. Errand and delivery work by foot, bicycle, or public transportation;
6. Kitchen and other work involved in preparing and serving food and beverages, including operating machines used to prepare food and drinks, such as dishwashers, toasters, dumb-waiters, popcorn poppers, milk shake blenders, and coffee grinders;
7. Office and clerical work, including operating office equipment;
8. Price marking and tagging by hand or machine, assembling orders, packing, and shelving; and
9. Work in connection with cars and trucks if limited to: dispensing gas and oil; courtesy service; car cleaning, washing, and polishing. Excluded: work in pits, around racks and lifting equipment, or inflating tires mounted on a rim equipped with a removable retaining ring.
The law also provides specific guidance for employers who employ minors who must drive vehicles as part of their employment. A minor, at least 17 years of age, may drive vehicles (automobiles or trucks) on public roadways, so long as the employer meets the following conditions, the:
· Driving is occasional and incidental, meaning that the employee drives no more than one-third of a workday and no more than 20% of a workweek.
· Driving takes place during daylight hours.
· Employee has a valid driver’s license, has completed an approved driver’s education course, and has no record of a moving violation.
· Vehicle is equipped with a seat belt, and the employee has been instructed to use it.
· Vehicle does not exceed 6,000 pounds gross weight.
· Driving does not involve: towing other vehicles; route deliveries or sales; urgent deliveries; more than two trips away from the place of employment in a given day; transporting more than three passengers; and driving beyond a 30-mile radius of the place of employment.
Employing minors requires the employer to comply with very specific and usually somewhat restricting laws. Not all employers comply. In January 2004, the National Consumers League for the Child Labor Coalition, prepared and distributed the results of a child labor law study conducted in 2003. 75 percent (39 states) of the states’ labor departments responded: (AL, AK, AZ, AR, CA, CT, DE, FL, GA, HI, ID, IL, IN, IA, KS, KY, MA, MN, MO, MT, NE, NV, NH, NM, NY, NC, ND, OH, OK, OR, SC, SD, TN, TX, VT, WA, WV, WI, and WY). The study revealed 30 states had employers illegally employing minors (up from 22 states in 2002). The employers illegally employing minors paid out $1,865,249 for these child labor violations. Topping the list of prohibited activities: motor vehicle operations (including delivery driving, forklifts); construction (including roofing); food preparation (cooking, slicers, bakery machines); power-driven machinery/saws; and manufacturing. To expedite the filing of a child labor violation complaint, each state provides a telephone number for teen workers and/or parents. Employers may want to consider contacting their local wage and hour division to obtain information regarding state laws—before a teen worker or parent contacts them. While it may cost the employer some money to comply with the law, the cost is usually less than the fines and/or overall costs associated with non-compliance. I tell my clients “you can pay now or pay later—either way you will pay—And it’s usually cheaper to pay now.” As the dog days of summer come and go, employers must comply with child labor laws. Implement policies and procedures ensuring your organization complies with both state and federal child labor laws and make your workplace a safe and legal environment for minors to work in.
Ms. Cotham is a sole practitioner. In the employment law area she has represented clients in state and federal courts as well as in administrative hearings before state and federal agencies. In addition, Ms. Cotham’s consulting firm, CBA Enterprises, provides human resources management and training services for both private and public sector employers. She has written HR policies and procedures and provided training for large and small businesses and organizations to include policies and training on sexual harassment; hiring issues; employee orientation; discipline and firing issues; human resource audits; human resource recordkeeping; ADA, FMLA, FLSA, and OSHA compliance; wage and hour issues; overtime requirements and exemptions; workplace violence; and more. Ms. Cotham is based in Las Vegas, Nevada and is available for training and speaking engagements throughout the United States. She can be contacted at [email protected].