|
by Michael Blickman
and Pamela Keller, attorneys, Ice Miller Donadio & Ryan, Indianapolis,
Indiana
It was not mere imagination when Department of Labor
(DOL) inspectors arrived at a camp in the northeast to inspect records
concerning the employment of minors. By the time the inspectors left,
they had levied fines of $70,000 for multiple child labor violations including
dining hall workers under sixteen working more than eight hours a day
and beginning work before 7 a.m.
The United States Department of Labor has launched a
new initiative and stepped up efforts to protect young workers and bring
employers into compliance with the Fair Labor Standards Act (FLSA), the
primary federal statute dealing with child labor. The department’s new
effort to promote compliance with federal child labor laws has resulted
in stricter enforcement and substantial civil penalties against offenders.
Employers of young workers must take a hard look at their practices to
be sure they are in compliance with federal law.
The FLSA was enacted in 1938 to deter and eliminate oppressive
child labor by placing limits on the ages of employment, the hours children
work, and the type of work they perform. It was initially an attack on
such abuses as employing young children for long hours in coal mines,
cotton mills, and garment factories. Today, however, employers engaged
in much less severe employment practices may find themselves in violation
of the FLSA and/or the target of a DOL investigation.
This article is an introduction to the requirements of
the FLSA and its corresponding regulations as they apply to child labor
issues. It is not a comprehensive survey of applicable law. Camps must
also consult state law. All fifty states have enacted child labor
legislation regulating the minimum ages, types of employment and hours
of young workers. These state laws may, in some cases, be more restrictive
than federal laws and regulations.
Do FLSA child labor provisions apply
to my camp?
Most likely, they do. Child labor provisions of federal
law apply to all camps with an annual gross volume of business of at least
$500,000. If the aggregate of your camp income and expense is less than
$500,000, contact legal counsel in your state to determine whether you
are exempt. In addition, a particular child worker may be covered, even
if the whole camp is not, if that child actually engages in interstate
commerce, such as a child who works in a mail room or on the telephone.
Even if you are exempt from federal requirements, many states have similar
child labor laws from which it is likely that you will NOT be exempt.
There is NO seasonal exemption from the child labor
provisions of the FLSA like there is for the minimum wage provisions.
Further, the requirements of the FLSA may not be waived by agreement between
the employer and the employee or, in the case of a minor, the employee’s
parents.
Requirements for Workers Who Are 14 or
15 Years Old
Under federal law, camp employment of workers under fourteen
is prohibited. Fourteen- and fifteen-year-old workers may engage in a
variety of occupations, but only under certain conditions. The following
restrictions apply:
Summer
School Year
-
Not more than eighteen hours per week
-
Not more than three hours on a school day
-
Not more than eight hours on a non-school day
-
Not before 7 a.m.
-
Not later than 7 p.m.
In addition, fourteen and fifteen-year-old workers may
not do work that involves the following: an occupation deemed "hazardous"
by the DOL (see below); attending or operating a hoisting apparatus; operating
or servicing a motor vehicle; operating power-driven machinery; maintenance
of machinery; outside window washing that employs a ladder or scaffold;
operating or maintaining power-driven food slicers (such as a meat slicer
in a camp kitchen) or bakery-type mixers; work in freezers and meat coolers;
loading and unloading goods to and from trucks, railroad cars, or conveyors;
baking; or cooking (except at soda fountains, lunch counters, snack bars,
or cafeteria serving counter).
Requirements for Workers Who Are 16 to
17 Years Old
At sixteen, minors may be employed in most occupations
other than those deemed "hazardous." Special rules govern the
employment of young workers in agriculture and are not covered here. The
list of hazardous occupations is long and includes, but is
not limited to work that involves: roofing operations; the use of power-driven,
paper-product machines; and the use of power-driven saws and wood-working
machines. The operation of a motor vehicle on a public road or highway
is also prohibited unless: (1) the motor vehicle does not exceed 6,000
pounds; (2) the driving is done in daylight hours; (3) the operation of
the vehicle is occasional and incidental to the employment; and (4) the
child has a valid state license for the type of driving and has completed
a state-approved driver-education course. The proscription against employment
in hazardous occupations applies even when the minor is employed by a
parent.
At sixteen, the federal law limitations on starting and
ending hours are lifted, as are the limitations of hours of work per day.
Most states, however, have some hour limitations on sixteen and seventeen-year-olds.
Applicability of the FLSA to Counselors-in-Training,
Volunteers, and Camper/Workers
Many camps have "Counselors-in-Training" that
provide supervision and support as part of their training program in return
for a lower camper fee. Camps also utilize volunteers and campers to provide
services in the kitchen or stables in return for reduced tuition. When
they are limited to truly volunteer service, intended primarily to benefit
the individual and not just the camp, these individuals are not "employees"
and, thus, are not covered by the child labor provisions. However, if
they are used to perform regular work normally performed by employees,
the DOL could take an aggressive position and argue that such minors are
protected by the FLSA child labor provisions.
Record Keeping
In addition to actually complying with the FLSA’s child
labor restrictions, employers must also maintain and preserve certain
records to prove their compliance. Records must be maintained that specify
the employee’s name, address, gender, occupation, and birthday if under
nineteen. Records must indicate the time of day and the day of the week
on which an employee’s workweek begins, the hours worked each workday,
and the total hours worked each workweek.
In addition, records must show the date each employee
was paid, the pay period covered, and the total wages received for each
pay period. Most records must be retained and preserved for at least
three years. Other requirements may also apply, so camps must consult
the FLSA and the regulations for further specificity.
Work Permits and Proof of Age
It is advisable to obtain a certificate or proof of age
for young workers who are within two years of the legal work age or who
look younger than they profess to be. The DOL generally will not penalize
employers for unknowing violations of FLSA minimum age restrictions if
they obtain and keep on file an unexpired certificate of age for each
worker who is a minor.
Most states require employers to obtain work permits
for workers under the age of eighteen. These permits are often obtained
from school districts. State law will govern whether these permits are
obtained from the state where the child resides or from the state where
the camp is located.
Investigations or Audits
The DOL may investigate and gather data regarding the
employment of young workers in any industry subject to the FLSA. Most
frequently, such investigations follow a complaint to the Department,
although some of the audits at camps appear to be random.
If a violation is found, there are potentially very severe
consequences. An employer may receive a civil penalty of up to $10,000
for each employee who was the subject of a violation. The total penalty
will depend on the size of the business and the seriousness of the charge.
Summary
All states have enacted some form of child labor provisions.
These provisions vary greatly. States often enact stricter requirements
than those imposed by the FLSA and its corresponding regulations. When
state standards are higher than federal standards, state laws apply. Many
states require employers to post special notices in places where youth
are employed and to keep on file work permits or employment certificates
authorizing employment.
Many states also limit the hours of work for all minors,
not just for fourteen and fifteen years olds.
The child labor laws and regulations contain many pitfalls
for the unwary and uninformed camp. A thorough inquiry into state and
federal child labor law provisions pertaining to particular employment
practices is necessary to ensure full compliance with applicable law.
The local offices of the Wage and Hour Division of the United States Department
of Labor will answer inquiries about the FLSA and can provide relevant
publications free of charge.
Originally published in the 1999 Spring issue
of The CampLine.
|
