Business face restrictions and requirements when hiring, employing 16- and 17-year olds

By David Dubberly
Maynard Nexsen PC

 

In some industries, worker shortages have caused employers to consider hiring 16- and 17-year-olds for non-hazardous occupations, especially during the summer.

The federal Fair Labor Standards Act (FLSA), in addition to establishing minimum wage and overtime pay requirements, prohibits using “oppressive child labor” in commerce or in the production of goods for commerce.  Oppressive child labor means, among other things, employing 16- and 17-year-olds in non-agricultural occupations that the U.S. Department of Labor’s (DOL) Wage and Hour Division (WHD) deems hazardous.  The FLSA also bars manufacturers from shipping (or delivering for shipment) any goods in commerce if oppressive child labor was used in the facility that produced the goods (“hot goods”).

At the same time, many states have child labor laws. Nothing in the FLSA excuses noncompliance with a state law that establishes a higher standard than that provided in the FLSA.

Restrictions on Hazardous Occupations for Minors Ages 16 and 17

The WHD has identified 17 occupations too dangerous for minors who are 16 or 17, with limited exceptions.  As a general rule, minors aged 16 and 17 may not work in the following occupations:

• Manufacturing and storing of explosives or articles containing explosive components
• Motor-vehicle driving and working as an outside helper on roads, mines, excavations, or near logging and sawmill operations
• Coal mining
• Occupations in forest fire fighting, forest fire prevention, timber tract operations, forestry service, logging, and sawmilling or other similar mills
• Working with power-driven woodworking machines
• Any occupations involving exposure to radioactive substances and ionizing radiations
• Working with a power-driven hoisting apparatus, including forklifts
• Working with power-driven, metal-forming, punching, and shearing machines
• Any type of mining other than coal
• Operating power-driven meat-processing equipment in retail and wholesale establishments and most occupations involving meat and poultry slaughtering, packing, processing, and rendering
• Working with power-driven bakery machines
• Working with power-driven balers, compactors, and paper processing machines
• Manufacturing bricks, tile, and similar products
• Working with power-driven saws and similar products
• Wrecking, demolition, and shipbreaking operations
• Roofing operations and any other work on or about a roof
• Excavation operations

Under the FLSA, 16- and 17-year-olds may be employed for unlimited hours in any non-agricultural, non-hazardous position.  Some states, however, are reacting to labor shortages by taking a closer look at hours of work and time schedule restrictions on youth employment, with some decreasing existing restrictions on work schedules and others increasing such restrictions.  Also, some states require rest and meal break periods within the workday for minors.

Age Certificates

Employers who have a valid age certificate on file for a minor are protected from FLSA violations relating to that minor’s age, so it may be a good idea to obtain certificates if there is any reason to believe a minor’s stated age is inaccurate.  Some states require employers to obtain work permits for minors they employ.

Minimum Wage and Recordkeeping

Minors are generally covered by the same FLSA wage and hour protections as adults.  For example, minors have the same rights under the FLSA to minimum wage and overtime pay.  However, under federal law, for the first 90 consecutive calendar days after hire, employers may pay employees under age 20 any wage rate that is at least $4.25 an hour instead of the federal minimum wage—unless prohibited by state law.  Where a state requires payment of a youth minimum wage higher than $4.25 an hour, the higher standard would apply.

The recordkeeping requirements of the FLSA also apply to the employment of minors.

Consequences for Violations

Any person who willfully violates the FLSA’s child labor law provisions restricting the use of oppressive child labor is subject to significant fines for each violation (especially if a minor employee is injured) and/or imprisonment for up to six months.  Recent WHD enforcement actions have led to penalties in the millions of dollars, as well as additional financial impacts resulting from stopping the flow of “hot goods” into commerce.

Apprentice Exemption

Apprentices may be exempt from regulations restricting some hazardous non-agricultural occupations when the following conditions are met:

• They are employed in a craft recognized as a trade that offers apprenticeships.
• Any hazardous work they perform is incidental to their training; intermittent and for short periods of time; and under the direct and close supervision of a journeyman as a necessary part of the training.
• They are registered by the DOL as employed under the agency’s standards; registered by a state agency recognized by the DOL; or employed under a written apprenticeship agreement and under conditions that the DOL finds substantially conform with federal and state standards.

Student-Learner Exemption

Student-learners may be exempt from regulations restricting some hazardous non-agricultural occupations when they are enrolled in a course of study and training in a cooperative vocational training program under a recognized state or local educational authority or a substantially similar private school program.  Each student-learner must be employed under a written agreement that provides the following:

• That any hazardous work they perform is incidental to the student’s training; intermittent and for short periods of time; and under the direct and close supervision of a qualified and experienced person.
• Safety instructions to be given by the school and correlated by the employer with on-the-job training.
• A schedule of organized and progressive work processes to be performed on the job.

Each written agreement must contain the name of the student-learner and be signed by the employer and the school coordinator or principal, both of whom must keep a copy of the document on file. High school graduates who have completed this training for an occupation may be employed in that occupation even if they are under 18.

OSHA Requirements

Finally, minor employees should be fully trained on applicable standards promulgated by the DOL’s Occupational Safety and Health Administration (OSHA).  Not only may an injury to a minor employee result in an increased child labor penalty, but employers can also expect the WHD to report any perceived safety issues to OSHA.

Takeaway for Employers

The FLSA establishes general standards for employment of 16- and 17-year-olds across the U.S. in hazardous and non-hazardous occupations.  Many states, however, impose or are considering additional restrictions or restrictions that are different from those currently in place.  Employers will need to take a look at all states in which they operate to ensure compliance with applicable law on additional hazardous occupations, maximum hour and time-of-day restrictions, and recordkeeping requirements.

For specific questions about how federal and state wage and hour and safety standards may impact 16- and 17-year-old employees, please contact any member of the Maynard Nexsen Employment & Labor Law team.

 

David Dubberly is an employment and labor lawyer with Maynard Nexsen PC.