Navigating Federal and State Youth Labor Laws

RENEWED FEDERAL SCRUTINY

On February 27, 2023, the DOL and HHS issued a joint announcement highlighting a 69% increase since 2018 in noncompliant practices with respect to the employment of minors. As a result, the federal government has renewed its focus on the use of child labor. To help combat noncompliance with child labor laws, the DOL and HHS have spearheaded a collaborative effort that will include, among other efforts, an interagency task force and a national strategic enforcement initiative on child labor. The announcement made clear that the DOL and HHS intend to hold all employers accountable for any noncompliance with child labor laws. The announcement called on Congress to increase the maximum civil monetary penalty for a child labor law violation, which is currently $15,138 per child. The announcement described the current penalty as “not high enough to be a deterrent for major profitable companies.”

Members of both the US House of Representatives and the US Senate have echoed the efforts of the DOL and HHS. Both chambers have introduced pieces of legislation that seek to strengthen penalties for employers that violate child labor laws. The Senate’s version of the legislation would seek to establish new criminal penalties and increase maximum fines for employers that violate child labor laws, while the House’s bill would increase civil monetary penalties and establish a minimum monetary penalty for violation.

STATE LEGISLATORS SEEK TO MODIFY RESTRICTIONS ON CHILD LABOR LAWS

Against this backdrop, and partly in response to market pressures and increased demand for labor, state legislatures have increasingly been considering modifying restrictions on employers’ ability to hire minors. Recent examples include the following:

• Iowa: Governor Kim Reynolds signed a bill into law allowing 14- and 15-year-olds to work in meat coolers and industrial freezers.
• Minnesota: Lawmakers are considering legislation that would allow 16- and 17-year-olds to work in construction.
• Arkansas: Governor Sarah Huckabee Sanders recently signed the state’s Youth Hiring Act of 2023, which allows workers as young as 14 to work without a permit.
• Ohio: Lawmakers are considering a new law that would remove the cap on the number of hours minors as young as 14 can work with parent or guardian consent.
• New Jersey: Governor Phil Murphy signed legislation last year allowing those aged 16 to 18 to work 50 hours a week during the summer with parent or guardian consent.

Lawmakers in other states, like New York, recently encouraged employers in hospitality, restaurants, fast food and certain physically taxing industries such as manufacturing, food processing, construction, farming and landscaping to educate their employees on labor rights and the signs of labor trafficking. To help promote these efforts, New York rolled out a campaign to educate young workers on their rights in the workplace and debuted a labor trafficking response unit, tasked in part with cracking down on noncompliant practices with respect to the employment of child workers.

LEGAL CONSIDERATIONS AND BEST PRACTICES

With this developing patchwork of federal enforcement efforts and state laws, it is increasingly important for employers to review their policies and practices with respect to the employment of minors in the workplace and adjust if necessary. Here are a few recommended best practices to get employers started:

• Obtain age permits. While several states require minor workers to obtain employer-specific permits to work, federal law has no such requirement. However, employers may nonetheless seek an age certificate from the DOL in order to mitigate any potential liability in the event a minor worker is revealed to be younger than their stated age. An effective age certificate contains the minor’s name and address, place and date of birth (and a statement indicating the evidence on which this is based), sex, signature, name and address of the minor’s parent or guardian, the signature of the issuing officer, and the date and place of issuance. If the minor is under 18, the age certificate should also include the name and address of the employer, the employer’s industry and the minor’s occupation. The DOL accepts state-issued work permits as valid age certificates; the DOL may also issue certificates for a minor under 18 years of age. 29 CFR Part 570 Subpart B, §§ 570.5-6.
• Ensure that human resources and management teams understand industry-specific work restrictions. For the safety of youth workers, federal law prohibits minors from holding a variety of jobs, particularly those in “hazardous” fields such as trucking, logging, industrial freezers, compacting machines or occupations working with most types of heavy industrial equipment (e.g., meat processing, bakery machines, metallurgical equipment). State and local laws may expand or limit the list of prohibited jobs.
• Ensure that human resources, management and youths are properly trained on legal compliance and individual rights. In industries that tend to employ youths at higher rates (e.g., fast food restaurants), ensure that managers who may be young themselves are appropriately trained to work with minors. For example, in California, all managers must go through mandatory sexual harassment prevention training. If an employer’s state does not have this requirement, and/or an employer has not implemented an official program, consider at minimum implementing one for persons that supervise and work with minors. The US Equal Employment Opportunity Commission offers several fact sheets, including one on sexual harassment, as part of its “Youth@Work” initiative. Even in fields without a typically young workforce, employers should ensure that managers are selected and trained to work with youth in compliance with applicable youth labor laws. Employers may consider implementing specialized training methods that are better suited for younger workers. For seasonal workers (perhaps teens picking up a summer job), employers may wish to consider tailoring training programs to make sure youths are aware of their rights as soon as possible, given their possible short tenure on the job.
• Consider placing caps on the number of hours that minors can work per day, per week and dependent on whether school is in session. Federal law states that individuals aged 14 and 15 may not work during school hours while school is in session, before 7 am or after 7 pm (or after 9 pm from June 1 through Labor Day), more than three hours on a school day, more than 18 hours a week during a school week, more than eight hours a day on a non-school day, or more than 40 hours a week during a non-school week.
• Provide industry-specific training on tools and machinery. Consider whether minors require additional training to use machinery or equipment in a given profession.
• Conduct an internal privileged audit. Confirm that your organization is compliant with the federal, state and local minimum wage and overtime requirements, and any state or locally required meal periods or rest breaks for minor employees.

THE MCDERMOTT DIFFERENCE

The employment of minors is inherently a challenging subject, especially in light of recent trends. We are happy to advise you in the event you are seeking to bring minor workers to your organization, in order to help ensure that your organization has taken the appropriate steps and to protect the minor staff onboard.