Posted on 06/20/2017 at 12:00 AM by Mike Staebell
If you employ or plan to employ workers under the age of 18 this summer, be sure you understand the federal child labor provisions of the Fair Labor Standards Act (FLSA). Knowledge of the child labor rules is critical in order to ensure that minors are working in safe environments. In my 33 years with the USDOL Wage and Hour Division (WHD), the agency that enforces these rules, I encountered employers whose teen workers experienced serious injuries, and even death. Those were the most heart-wrenching investigations that I ever took part in, and the employers’ devastation was beyond description.
Even if you make every effort to keep your teen workers safe, it is easy to violate the expansive child labor regulations through lack of knowledge. And employer good intentions won’t save you from significant penalties if you are investigated by WHD and found in violation. Throughout my career with WHD, child labor enforcement was a major priority. The rules are enforced strictly and aggressively, with WHD often conducting random investigations of employers who tend to employ minors, such as restaurants, grocery stores, nursing homes, recreational establishments, and amusement parks.
The Child Labor Restrictions
The FLSA child labor provisions for non-agricultural employment fall into two categories: 14 and 15 year-old employees, and employees age 16 and 17. Unless the minor is a child of the owner of the company, age 14 is generally the minimum age for employment. (There is an exception for newspaper delivery boys and girls). 14/15 year olds may only work in jobs that are spelled out in the regulations, and there are limits to the hours they may work. They may work only outside of school hours, and they may not work before 7 a.m. or after 7 p.m. (except from June 1 through Labor Day when they may work until 9 p.m.). They may not work more than 3 hours on a school day; 18 hours in a school week; 8 hours on a non-school day; or 40 hours in a non-school week.
There are no hours worked limitations for 16/17 year old employees. And they are allowed to work in any activity that does not fall within one of USDOL's 17 "Hazardous Occupations Orders." These Orders also apply to 14/15 year old employees. One of the most often-violated hazardous orders prohibits minors from work-related driving of motor vehicles on public streets or highways. I’d be richer today if I had a dollar for every time an employer told me: “She drives her car to work, so I just assumed she could drive a car as part of her work duties.” At present, WHD would assess this employer a civil money penalty of $1730 for each employee in violation if this were a first violation, and $3460 per employee for subsequent violations of this hazardous order. The fines add up quickly, and six-figure penalties are not unheard of. It pays to know the rules!
Different standards apply to agricultural employment of minors. For example, with written parental consent, minors as young as 12 may work on farms.
The FLSA currently authorizes civil money penalties of up to $12,278 per illegally-employed minor. The penalties for even first-time violations can be substantial. For a violation resulting in a minor employee's death or serious injury, the penalty can be up to $55,808 and can double to $111,616 in cases where the violations are found to be repeated or willful. And these penalties are often only the tip of the liability iceberg if civil litigation results. It’s hard to defend an employer in a case in which a teen was killed while working in violation of federal child labor law.
In enforcing child labor rules, WHD will not accept employer excuses if violations are proven. A common example is when an employer believes the worker is 18 or older but in reality the teen is under 18. I have heard statements such as, “He looked old enough to work”; or “She lied to me about her age,” or “His father works here and asked me to hire his son.” None of these hold water. In one of the most egregious cases of my DOL career, a 17-year old was driving a forklift for his job at a packing plant in violation of a DOL hazardous order, and was killed when the forklift rolled over and crushed him. This worker’s stepfather, who also worked at the plant, had gotten him the job, and they both lied about the boy’s age. The firm appealed the $50,000 fine on the basis that it believed the boy was 18. At the hearing, the judge upheld the penalty.
My short blog cannot provide a detailed overview of the extensive federal child labor regulations. If you employ minors, a good start would be to review the DOL’s web page on child labor rules. And do not forget the Iowa child labor laws. In most respects they mirror the federal rules, but there are some significant differences. Remember that if federal and state law conflict, employers are required to abide by the law that is most restrictive and provides the most protection to minors.
The material in this blog is not intended, nor should it be construed or relied upon, as legal advice. Please consult with an attorney if specific legal information is needed.
- Mike Staebell