Federal Child Labor Laws: Are You in Compliance?

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

  • Not more than eight hours per day

  • Not more than forty hours per week

  • Not before 7 a.m.

  • Not later than 9 p.m.

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.
 

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Many children in the world

Many children in the world are forcefully engaged by their parents to work because of poverty. Employers should be strict in minimum age qualification before hiring employees to avoid criminal liabilities. Though many countries have Federal state law, which enforces employers to avoid being indulged in child labor, but not all follow this. In spite of being declared Child labor as illegal and exploitative by many organizations still this issue is of grave concern. missing children

Excellent article. Camps

Excellent article. Camps often assume that the federal child labor standards do not apply because of the MW and OT exemption. That can be an expensive assumption, especially with increased enforcement in recent years, and maximum penalties that are now much higher than when this article was originally published.

I disagree with one statement in the article: "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." The described circumstances will cause a reduction in the assessment (as compared to a "knowing" or "willful" violation and/or lack of an accurate date of birth on file), but violations of FLSA child labor standards are likely to result in thousands of dollars of civil money penalty assessment even when records are accurate and the employer "pleads ignorance" as an excuse.

The article properly points out that minors may be individually covered by the FLSA even if enterprise coverage does not exist. An additional consideration in that regard is the use of email and/or the Internet in connection with employment. There is also a coverage provision (for child labor purposes) pertaining to employment "in or about" an establishment that "produces goods for interstate commerce." The Wage and Hour Division investigators are trained to develop coverage whenever possible. Most camps should assume that the federal child labor standards apply and take steps to comply.

A summary of the FLSA (federal) child labor rules may be found in this publication: http://www.dol.gov/whd/regs/compliance/childlabor102.pdf

Information about state child labor laws: http://www.youthrules.dol.gov/law-library/state-laws/index.htm