The following article appeared in a June 9, 2008 SHRM Update.

FLSA (Fair Labor Standards Act) Amended To Increase Penalties for Child Labor Violations
By Allen Smith (Allen Smith, J.D., is SHRM’s manager of workplace law content)

This summer employers will face new penalties when youth who are working in violation of the Fair Labor Standards Act (FLSA) are injured or die on the job.

In addition to prohibiting discrimination based on genetic information, the Genetic Information Nondiscrimination Act (GINA) amended the FLSA to provide that employers may be penalized up to $50,000 for the death or serious injury of any employee under the age of 18 years. The penalty may be doubled if the violation is a repeated or willful violation.

In addition, GINA raised the maximum penalty for other violations of child labor rules from $10,000 per worker to $11,000 and increased the maximum civil penalty (which may be in addition to the ordered payment of unpaid wages and damages) for willful violation of minimum wage and overtime provisions of the FLSA from $1,000 per violation to $1,100.

Also, GINA added a definition of “serious injury” to the FLSA. Alexander Passantino, the U.S. Department of Labor (DOL) Acting Administrator for the Wage and Hour Division, told SHRM Online that this was the first time a definition of serious injury was provided in the statute.
“Serious injury” under the FLSA now means:

• Permanent loss or substantial impairment of one of the senses (sight, hearing, taste, smell, tactile sensation);
• Permanent loss or substantial impairment of the function of a bodily member, organ, or mental faculty, including the loss of all or part of an arm, leg, foot, hand or other body part; or
• Permanent paralysis or substantial impairment that causes loss of movement or mobility of an arm, leg, foot, hand or other body part.

The DOL is pleased that Congress raised the penalties for the violation of child labor laws, Passantino remarked. He noted that the DOL had proposed the increase “to act as a deterrent for dangerous conduct.”

The National Institute for Occupational Safety and Health (NIOSH) estimates that 157,000 youth sustain work-related injuries and illnesses each year, only a third of which result in emergency room treatment. Approximately 54 workers under 18 died on the job in 2007.

Passantino noted that most youth injuries on the job are not attributable to the violation of child labor laws. But as summer approaches, employers should refamiliarize themselves with the rules on youth employment, he said.

Restrictions on Youth Employment
Youth who are under the age of 14 generally are prohibited from nonagriculture work with certain exceptions such as for babysitters, newspaper deliverers and child actors. For youth who are 14 or 15 years old, certain hours of work are restricted during school weeks. Passantino said these youth are limited to three hours of work on school days up to 18 hours a week during school weeks. These teens cannot work more than eight hours on non-school days and 40 hours in non-school weeks.

What Hours Can Youth Work?
14 and 15 year olds can work:
Outside school hours
After 7 a.m. and until 7 p.m. (except from June 1 through Labor Day when 14 and 15 year
olds can work until 9 p.m.)
No more than 3 hours on a school day
No more than 18 hours in a school week
8 hours on a non-school day
40 hours in a non-school week
16 year olds and older can work:
Any day, any time of day, and for any number of hours.
There are no restrictions on the work hours of youth aged 16 and older
**See the DOL Website for complete details

What Jobs Can Youth Do?
The child labor rules that apply to non-agricultural employment depend on the age of the young worker and the kind of job to be performed. 14 years old is the minimum age for non-agricultural employment covered by the FLSA. In addition to restrictions on hours, the Secretary of Labor has found that certain jobs are too hazardous for anyone under 18 years of age to perform. There are additional restrictions on where and in what jobs 14-and 15-year-olds can work. These rules must be followed unless one of the FLSA’s child labor exemptions apply.

A youth 18 years or older may perform any job, whether hazardous or not.

A youth 16 or 17 years old may perform any non-hazardous job. (See the list of hazardous occupations below.)

A youth 14 and 15 years old may not work in the manufacturing or mining industries, or in any hazardous job. (See the list of hazardous occupations below.) In addition, a 14- or 15-year-old may not work in the following occupations:

Communications or public utilities jobs;
Construction or repair jobs;
Driving a motor vehicle or helping a driver;
Manufacturing and mining occupations;
Power-driven machinery or hoisting apparatus other than typical office machines;
Processing occupations;
Public messenger jobs;
Transporting of persons or property;
Workrooms where products are manufactured, mined or processed;
Warehousing and storage.

A 14- or 15-year-old may work in retail stores, food service establishments and gasoline service stations. However, a 14- or 15-year-old may not perform the following jobs in the retail and service industries:
Baking;
Boiler or engine room work, whether in or about;
Cooking, except with gas or electric grilles that do not involve cooking over an open flame
and with deep fat fryers that are equipped with and utilize devices that automatically lower
and raise the baskets in and out of the hot grease or oil;
Freezers or meat coolers work;
Loading or unloading goods on or off trucks, railcars or conveyors;
Meat processing area work;
Maintenance or repair of a building or its equipment;
Operating, setting up, adjusting, cleaning, oiling, or repairing power-driven food slicers,
grinders, choppers or cutters and bakery mixers;
Outside window washing, or work standing on a window sill, ladder, scaffold or similar
equipment;
Warehouse work, except office and clerical work.

The jobs a 14- or 15-year-old may do in the retail and service industries include:
Bagging and carrying out customer’s orders;
Cashiering, selling, modeling, art work, advertising, window trimming, or comparative
shopping;
Cleaning fruits and vegetables;
Clean-up work and grounds maintenance - The young worker may use vacuums
and floor waxers, but he or she cannot use power-driven mowers, cutters, and
trimmers;
Clean cooking equipment, including the filtering, transporting and dispensing of oil and
grease, but only when the surfaces of the equipment and liquids do not exceed 100° F;
Delivery work by foot, bicycle, or public transportation;
Kitchen and other work in preparing and serving food and drinks, but not cooking
or baking (see hazardous jobs);
Office and clerical work;
Pricing and tagging goods, assembling orders, packing, or shelving;
Pumping gas, cleaning and polishing cars and trucks (but the young worker
cannot repair cars, use garage lifting rack, or work in pits);
Wrapping, weighing, pricing, stocking any goods as long as the young worker
does not work where meat is being prepared and does not work in freezers or
meat coolers.

Hazardous Occupations
18 is the minimum age for employment in non-agricultural occupations declared hazardous by the Secretary of Labor. The rules prohibiting working in hazardous occupations (HO) apply either on an industry basis, or on an occupational basis no matter what industry the job is in. Parents employing their own children are subject to these same rules. Some of these hazardous occupations have definitive exemptions. In addition, limited apprentice/student-learner exemptions apply to those occupations marked with an *.
1- Manufacturing and storing of explosives
2- Driving a motor vehicle and being an outside helper on a motor vehicle
3- Coal mining
4 Logging and sawmilling
5- Power-driven woodworking machines *
6- Exposure to radioactive substances
7- Power driven hoisting apparatus
8- Power driven metal forming, punching, and shearing machines *
9- Mining, other than coal mining
10- Meat packing or processing (including the use of power driven meat slicing machines)
11- Power driven bakery machines
12- Power driven paper product machines, including scrap paper balers and paper box compactors *
13- Manufacturing brick, tile, and related products
14- Power driven circular saws, band saws, and guillotine shears *
15- Wrecking, demolition, and ship building operation
16- Roofing operations and all work on or about a roof *
17- Excavation operations
See the DOL Website for complete details

There aren’t hour of work requirements for 16- and 17-year-olds, but Passantino said that the DOL has designated particular occupations as too hazardous for these teenagers to perform. These hazardous occupations include operating or unloading certain power-driven balers and compactors, roofing and operating power-driven meat processing machines.

Driving on the job is not permitted for 16-year-olds but is permitted for 17-year-olds only to drive cars or small trucks during daylight for limited times and under strictly limited circumstances.

Many teens work outdoors during the summer, which places them at risk of sun stroke. NIOSH reminds landscaping employers to take steps to avoid heat stress among their employees.

The new penalties for child labor violations were tacked on to the end of GINA, noted Cynthia Marcotte Stamer, an attorney with Glast, Phillips & Murray in Dallas. She told SHRM Online that the new penalties are “timely as we approach summer” but cautioned that there might also be penalties under federal and state Occupational Safety and Health Acts and state workers’ compensation laws.

Dip in Youth Employment?
Stamer said that she is seeing fewer employers hire teens than 10 years ago. She attributes this decline to greater competition for seasonal employment and says that landscaping and hospitality jobs increasingly are being filled not only by recent immigrants but also by seniors seeking to return to the workforce.

Stamer has chatted over drinks with mothers and is hearing some of them say that their kids don’t want to work, while others say that their teens have looked for work at restaurants but that no one is hiring them.

Patricia Mathews, MBA and president of HR consulting firm Workplace Solutions in St. Louis and a member of the SHRM Employee Relations Special Expertise Panel, said that lower employment of teens might be a trend in some parts of the country, but she isn’t seeing it in the Midwest. Her clients include five McDonald’s restaurants, which are hiring teens for the summer, as are a variety of tourist attractions in the St. Louis area, such as the Gateway Arch and riverboats on the Mississippi.

Extra Care
“Employers need to take a little extra care in terms of orientation” for teens, Mathews reminded. This includes not only basic safety but also customer service and sanitary issues.

Mathews said that, unfortunately, managers often just show newly hired teens to their work stations without anyone investing the time to bring them up to speed.

Teens should be encouraged to ask questions, Mathews emphasized. Mathews cautioned that managers shouldn’t assume that teens can figure it out on their own.

The new FLSA penalties for child labor violations took effect when GINA was signed into law on May 21, 2008, and apply to deaths or serious injuries that occur after GINA’s enactment.

– The child labor laws are not new, however, even after having these laws in place for a very long time, employers are still violating the rules associated with employing youth.

If you have questions about employing youth please call your assigned A Plus Benefits HR Advisor or place a call to the Human Resources Department at A Plus Benefits. We can provide you with information that will help you stay within the laws, rules, and regulations of youth employment.

Randall Barker is the VP of Human Resources for A Plus Benefits, Inc.

This entry was posted on Tuesday, June 10th, 2008 at 10:27 am and is filed under Hiring, Human Resources, Legal. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.