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http://www.hreonline.com/HRE/images/Keisha-AnnGray106x106.jpgEmploying Minors

Question: With summer around the corner, our company has gotten a lot of applications from teenagers and 18-year-olds. We would like to hire them, but don't want to violate any federal or state laws that deal with the employment of minors. What federal and state laws apply to employing people who are 18 and under, and what are the requirements that we have to meet? We are in the food and beverage manufacturing industry.

Monday, April 22, 2013
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Answer:  There are 4 age categories to consider under either federal or state law: children under age 14 ("children"), minors ages 14 and 15 ("young minors"), minors ages 16 and 17 ('older minors"), and persons age 18 and older ("adults"). Under federal law, there are no restrictions on the employment of adults ages 18 and older, and there are nearly absolute restrictions on the employment of children under age 14. Minors ages 16 and 17 are permitted to work in manufacturing occupations subject to certain conditions on the timing, duration and hazardous nature of the work. Further, state laws require that these minors must provide certification of age along with permission to work ("working papers"). The regulations that govern the employment of 16- and 17-year-olds in the manufacturing industry differ from state to state.

The Fair Labor Standards Act is the federal law that governs the majority of employer/employee relationships at private employers. The FLSA protects children from labor that is hazardous to their health or prevents them from performing well in school. To that end, the Act prohibits the use of "oppressive child labor" in commerce or in the production of goods for commerce. Unlike many states, federal law does not require employers to obtain work permits or working papers for minors they employ. However, employers who have a valid age certificate on file for a minor are protected from FLSA violations relating to that minor's age, so employers should obtain age certificates if they have any reason to believe a prospective employee is under age 18.

·                     Minors Ages 14 and 15: Restrictions on the Type of Work Permitted

Your question asks about the laws and regulations governing the employment of minors in the "food & beverage manufacturing industry."  Because federal law prohibits young minors ages 14 and 15 from working in manufacturing, it is likely that your company will be prohibited from hiring minors of those ages. However, there may be some exceptions depending upon the nature of the work involved. For example, young minors are permitted to do office and clerical work, and to work in sales, marking prices, packing, shelving, tagging, and assembling orders, perform errand and delivery work, kitchen work involved in preparing and serving food and beverages, clean kitchen equipment and surfaces that do not exceed 100° F, enter freezers momentarily to retrieve food items for restocking or food preparation, clean vegetables and fruit, and seal, label, weigh, price and stock groceries (including fruits, vegetables and meats) when performed in a separate area from a freezer or meat cooler. Therefore, if there is work available at your company that is not manufacturing in nature and fits into one of the permitted categories under Regulation 3, then some occupations at your work sites might be suitable for 14- and 15-year-olds, subject to the relevant state law provisions.

·                     Minors Ages 16 and 17: Restrictions on the Type of Work Permitted

Older minors are subject to fewer restrictions than young minors, but there are broad limitations on hazardous occupations, including mining, forest work, roof work, wrecking or demolition, wood working, motor-vehicle driving, and the operation of other heavy machinery. Older minors are permitted to work in manufacturing generally, subject to certain exceptions. For example, older minors are not permitted to participate in the manufacturing or storage of explosives (see Order 1, 29 C.F.R. § 570.51 (2010)).

There are several other restrictions on the types of work that older minors can perform that may be related to the food and beverage manufacturing industry. Older minors generally cannot operate power-driven meat processing equipment, except for certain allowances for the killing and processing of rabbits and other small game (29 C.F.R. § 570.61(c)(1) (2010)), and they cannot generally operate power-driven bakery machines except for small food mixers or pizza rollers (29 C.F.R. § 570.62(b) (2010)).

Generally, work that is of a clerical or non-hazardous nature complies with federal law. Manufacturing work that does not involve the use of heavy or dangerous machinery is probably permissible, although work done on a manufacturing floor could pose a risk of liability depending upon what other equipment items or materials share the same floor space. It is recommended that older minors not be placed in manufacturing occupations that share some of the same risks as the banned hazardous occupations mentioned above.

·                     Restrictions on the Timing and Duration of the Work: Young Minors Only

While there are restrictions on the type of work that older minors can perform (see above), there are no federal restrictions on the times of day or number of hours that older minors may work. (There are, however, various state restrictions on the times that older minors can work; these are discussed below.) Young minors are subject to time of day, time of year and hours restrictions. Generally, young minors are prohibited from working during school hours while school is in session. Further, federal law restricts young minors from working before 7 a.m. or after 7 p.m. except during the summer, when young minors may work until 9 p.m. Young minors may not work more than 3 hours on any school day, or more than 8 hours on any non-school day; they are also prohibited from working more than 18 hours in a school week or 40 hours in a non-school week. The terms "school day" and "school week" are defined by the schedule of the local public school district where the minor resides (29 C.F.R. § 570.35(b) (2010)).

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There are certain exceptions to the above restrictions, including exceptions for minors who have graduated from high school, those who have children to support, or those who have been exempted from compulsory schooling requirements or expelled from school (29 C.F.R. § 570.35(c)(1) (2010)). A complete discussion of the occupational and time restrictions on the employment of minors is available at the Department of Labor's Fact Sheet #43.

Given that your question relates to employment during the summer months, it is likely that the time of day/time of year restrictions would not apply. However, it is wise to carefully maintain documentation of the school schedule where the minor resides, not where your work site is located. Different school districts within the same state may have different vacation schedules, and young minors may not work while school is in session in their home districts, except for during the afternoon and early evening hours. Remember, however, that federal law only places these restrictions on young minors. Under the FLSA, minors ages 16 and 17 are permitted to work at any time and for any duration in non-hazardous occupations, subject to the same work-time restrictions as adults.

The employment of young minors (ages 14 and 15) in manufacturing is generally prohibited. Employing older minors (ages 16 and 17) in manufacturing during school vacations is generally permissible, both under federal law and under many state laws. Employers who hire minors should do so in close consultation with legal counsel to ensure that they are meeting both federal and state requirements as different states may have different requirements. Legal counsel can also help employers ensure the hired minors have appropriate certification where required, that their hours do not exceed those mandated by law, and that they are not working during days or hours that are impermissible under the law. Extra care should be taken regarding employment during school vacations, such as spring break, to ensure that minors' own school districts are also on a break.

Further, extra precaution should be taken regarding the employment of minors in an industry where the use of heavy, industrial equipment, hazardous materials or motor vehicles is common. Minors may not operate such machinery nor should they be exposed to such materials. Finally, employers should recall the purpose of the FLSA when considering minors for certain occupations: the FLSA's child labor provisions exist to protect minors from occupations that could be hazardous and from working at such durations or times as to interfere with their school performance. Keeping these core goals in mind should help guide employment decisions as the spring break season approaches.

Keisha-Ann G. Gray is senior counsel in the Labor & Employment Law Department of Proskauer in New York and co-chair of the Department's Employment Litigation and Arbitration Practice Group. Proskauer Associate Elizabeth Spector assisted with this article.

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