Employers who will be hiring minors under 18 years old should review in advance the federal Fair Labor Standards Act's prohibitions and restrictions applying to those workers.

It is always important to observe these requirements strictly, and the U.S. Labor Department will not hesitate to impose civil money penalties when it finds violations.  In recent months, for example, USDOL has assessed penalties of approximately:

♦   $21,000 against three retailers in one mall in New Jersey;

♦   $50,000 against a Pennsylvania pallet company;

♦   $20,000 against two grocery stores in Wisconsin;

♦   $53,000 against 14 grocery-store franchisees in Alabama and Mississippi (part of a USDOL "multiyear enforcement initiative"); and

♦   $28,000 against nine California locations of a nationwide child-themed entertainment business.

A pertinent selection of our child-labor-focused posts can be accessed here.  USDOL has also provided employer "self assessment" tools for non-agricultural occupations and specifically for employers in the grocery and restaurant businesses.

Remember also that most states and some other jurisdictions have their own child-labor limitations.

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If you plan to hire anyone under 18 years old for the summer, you should be thoroughly familiar with the federal Fair Labor Standards Act's child-labor limitations.  The U.S. Labor Department enforces these rules strictly and aggressively.  Don't count on good intentions and "close enough" to save the day if you get it wrong.

The applicable restrictions depend in part upon the person's age.  The employer bears the risk of misjudging how old a minor is.  If a person is illegally employed because he or she turns out to be younger than the employer thought, DOL is unlikely to be swayed by the fact that:

♦   The minor "looked" old enough to do the work,

♦   The circumstances led someone to think the person was old enough, or

♦   The minor misled the employer about his or her age.

The only reliable protection is to get and preserve a DOL-sanctioned, valid, unexpired age certificate.

FLSA child-labor restrictions are not relaxed just because the minor is employed as a "favor" to his or her parent, or because the parent is a supervisor or manager and will oversee what the minor does.  Although there is an exception outside of manufacturing, mining, or a "hazardous" occupation for minors employed by a parent or someone standing in the parent's place, this exception is extremely narrow and rarely applies.  Employers should not rely upon this provision unless they have looked into the details and are certain that it applies.

In non-agricultural work, the FLSA allows the employment of minors who are at least 16 in any activity not falling within one of DOL's 17 "Hazardous Occupations" orders.  The rules do not limit a 16- or 17-year-old's times or hours of work.

On the other hand, 14- and 15-year-olds may work only in limited occupations.  And even in permitted jobs, these minors may work only within specific total-hours and times-of-day restrictions (including on weekends).  They may not work before 7 a.m. or after 7 p.m. (except that they may work until 9 p.m. from June 1 through Labor Day).  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.

For the most part, FLSA restrictions do not permit the employment of anyone under 14.  There are a very few, narrowly-applied exemptions, such as one for delivering newspapers to the consumer.  However, once again, relying upon one of these exemptions involves taking a close look at the legal requirements and all of the relevant facts and circumstances.

There are some different rules for agricultural employment.  For example, in particular situations, there are age-12 and age-13 minimums for work outside school hours, provided that a parent gives consent or is employed on the same farm.

Perhaps a good starting point for evaluating your plans to hire workers under 18 is the summary DOL provides for non-agricultural and agricultural employment.  However, these are simply overviews, and it might be necessary to dig into the actual child-labor provisions themselves.

The FLSA authorizes civil penalties of up to $11,000 per illegally-employed minor.  The penalties for even first-time violations can be substantial, as these summaries for non-agricultural and agricultural work reveal.  For a violation resulting in such an employee's death or serious injury, the penalty can be up to $50,000 and can double to $100,000 in the case of a "repeated" or "willful" violation.  There can be other sanctions, as well, possibly including even criminal prosecution.

Most states and other jurisdictions have their own child-labor limitations.  Frequently, at least some of these requirements or prohibitions are stricter than the FLSA's.  Employers should also study these provisions when evaluating whether and in what capacity to employ a minor.

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Employers can expect more investigative attention to child-labor restrictions.  For one thing, the U.S. Labor Department has now adopted a harsher civil penalty structure.  Moreover, in making this announcement, Labor Secretary Solis spoke of the "reinvigorated enforcement" of FLSA limitations upon work by minors.

It is not yet clear whether or to what extent penalties have been increased across-the-board, but the ones publicized have skyrocketed.  For instance, the minimum fine for illegally employing a 12- or 13-year-old in a nonagricultural job has gone from $900 to $6,000.  Indications are that the Labor Department is prepared to impose penalties to the full extent of its authority:  Up to $11,000 per illegally-employed minor, and up to as much as $50,000 for violations resulting in death or serious injury (which can be doubled for "repeated" or "willful" violations).

Over the years, the U.S. Wage and Hour Division has undertaken special enforcement initiatives in the child-labor arena.  So it was no surprise when the Division disclosed earlier this month that it would be focusing upon the employment of minors in connection with blueberry harvests in New Jersey and North Carolina.  There is every reason to believe that child-labor practices among nonagricultural employers will also be scrutinized.

As we said on May 12, management should be certain that it is complying with all of the applicable child-labor limitations.  There have recently been some substantial regulatory changes, so it is wise to take another look to be sure.

UPDATE:  The Labor Department has created a "coordinated task force" to conduct FLSA investigations in southern Alabama and in Mississippi.  This group will focus in part upon child-labor violations in retailing, restaurants, and construction and will fan-out across both metropolitan and rural areas.

The U.S. Labor Department has released final revisions of its child-labor regulations under the federal Fair Labor Standards Act.  They will become effective on July 19, 2010.

Proposed changes had been published for comment in 2007.  DOL says that the revisions are intended to make it easier for individuals under the age of 18 to work.  Among other things, the revised regulations expressly address employment in industries such as advertising, banking, information technology, and teaching.

Our May 12 post summarized the general restrictions on the employment of minors under the FLSA.  Some of the significant changes, clarifications, and revisions include the following:

•   A provision permitting 14- and 15-year-olds to work in computer programming, teaching, tutoring, and other jobs of an "artistically creative nature."

•   A prohibition against "youth peddling" by 14- and 15-year-olds, an activity defined as "the selling of goods or services to customers at locations other than the youth-employer's establishment . . .."  However, there is an exception for "the activities of persons who, as volunteers and without compensation, sell goods or services" for certain entities.  An example of a permitted activity is selling Girl Scout Cookies.

•   A reiteration that 14- and 15-year-olds may operate espresso machines and certain toasters (such as "two- and four-slice 'pop up' toasters," but not "rapid toaster machines used at both quick and full-service restaurants to toast such items as buns, bagels, sandwiches, and muffins," because they typically operate at temperatures above 140 degrees).        

•   A section expressly permitting 16- and 17-year-olds to operate certain bakery machines, such as "portable counter-top power-driven food mixers that are, or are comparable to, models intended for household use."

The revisions also newly define a "workweek" for 14- and 15-year-olds as "a fixed and regularly recurring period of 168 hours – seven consecutive 24-hour periods . . .."  This harmonizes the definition with the one applying to other FLSA requirements.  Prior to this change, DOL had required a calendar week to be used to determine compliance with the total-hours limitations applying to these minors.

DOL adopted regulations implementing the child-labor civil money penalty changes made in the Genetic Information Nondiscrimination Act of 2008 (GINA), concluding in doing so that there was no need for prior notice or any opportunity for comment.  GINA added penalties of up to $50,000 for each child-labor violation that results in death or serious bodily injury of any employee under 18.  The penalties may be doubled to as much as $100,000 if the violation is "repeated" or is determined to be "willful."

These revisions apply only to non-agricultural jobs.  DOL now intends to review and revise the provisions concerning minors in agricultural employment.

Summer is approaching quickly, so employers should be up-to-speed on the federal Fair Labor Standards Act's child-labor limitations.  These rules apply to any employee who is under 18 years old.  The regulations are strictly applied; there is little or no room for error; and the U.S. Labor Department takes the requirements seriously.

What the restrictions are depends largely upon how old the person is, and employers bear the risk of misjudging a minor's age.  If a person is illegally employed because he or she turns out to be younger than the employer thought, it is usually not a defense that:

•     The minor "looked" old enough to do the work,

•     The circumstances led someone to think the person was old enough, or

•     The minor misled the employer about whether he or she was old enough.

The only reliable protection is to have on file a DOL-sanctioned, valid, unexpired age certificate.

The FLSA allows the employment of minors who are at least 16 in any work not falling within one of DOL's 17 "Hazardous Occupations" orders.  There is no FLSA limitation upon their times or hours of work.

By contrast, 14- and 15-year-olds may work only in limited occupations.  Even then, they may work only within specific total-hours and times-of-day restrictions (including on weekends).  They may not work before 7 a.m. or after 7 p.m. (except that they may work until 9 p.m. from June 1 through Labor Day).  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 non-school week.

For the most part, FLSA restrictions do not permit the employment of anyone under 14.  There are a few, tightly controlled exceptions, such as delivering newspapers to the consumer.

Some special rules apply to agricultural employment.  For example, in particular situations, there are age-12 and age-13 minimums for work outside school hours, provided that a parent gives consent or is employed on the same farm.

Child-labor restrictions must be followed even if the minor is employed as a "favor" to his or her parent, and even if the parent is a supervisor or manager and will oversee what the minor does.  An exception for minors employed outside of manufacturing, mining, or a "hazardous" occupation by a parent or someone standing in the parent's place is extremely narrow and rarely applies.

Furthermore, as an earlier post underscores, even "interns" can turn out to be employees for these purposes.

The FLSA authorizes civil penalties of up to $11,000 per illegally-employed minor.  For a violation resulting in such an employee's death or serious injury, the penalty can be up to $50,000 and can double to $100,000 in the case of a "repeated" or "willful" violation.

Many states and other jurisdictions have stricter limitations.  Employers must also take these provisions into account when deciding whether to employ a minor.