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06/10/2022

What retailers need to know about hiring minors this summer

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As summer approaches, retailers may be looking at staffing options they did not consider before the current worker shortage.

That includes hiring teen workers and creating internship programs. Both present a host of potential compliance pitfalls to consider.

Employing minors

Both federal and state laws restrict the time of day and number of hours that minors can work, the type of work they can perform, and the equipment they can use.

The Fair Labor Standards Act (FLSA) is the federal law that governs child labor and the Department of Labor’s Wage and Hour Division (WHD) is the agency charged with its enforcement. In situations where federal law and state law differ, you must follow the law that provides the most protection for the minor.

Days and hours of employment under federal law

• Age 18 – Those workers who are 18 and older have no restrictions whether in type of work or work hours.

• Ages 16 and 17 – Under the FLSA, minors aged 16 and 17 can be employed for unlimited hours in any occupation other than those deemed hazardous by the Secretary of Labor. This is an area where some state laws differ. For example, Indiana, California, and Ohio have restrictions on the number of hours and times of days this age group may work.

• Ages 14 and 15 – You are limited in the days and hours you can employ children in this age range as follows:

  • The work must be outside school hours;
  • They can work no more than three hours on a school day, including Fridays, and no more than eight hours on a non-school day;
  • They can work no more than 18 hours in a week when school is in session and no more than 40 hours in a week when school is not in session; and,
  • They cannot work before 7 a.m. or after 7 p.m., except from June 1 through Labor Day when they may work until 9 p.m.

Occupations

Ages 16 and 17 – The FLSA prohibits minors aged 16-17 from working in occupations deemed hazardous. You can find the 17 Hazardous Occupations here.

Be mindful that job responsibilities may cross into unexpected restricted areas so review all job duties that will be assigned to minor workers and compare those with DOL’s prohibited occupations. You should also check state law, which may have additional restrictions.

Driving – Under the FLSA, no employee under 17 may drive a motor vehicle on public roads as part of their job. Minors who are 17 may drive, but only during daylight hours on an “occasional and incidental” basis. Importantly, 17-year-olds are not permitted to make urgent, time-sensitive deliveries, such as pizza deliveries.

Ages 14 and 15 – In addition to hazardous occupations, minors aged 14-15 are also prohibited from working in several occupations, including manufacturing, youth peddling, and all work requiring the use of ladders, to name a few. The full list of prohibited occupations is available here.

The child labor regulations provide direction on the types of work youth ages 14-15 are permitted to perform. An exhaustive list is available here.

Any job that is not specifically permitted for this age group is prohibited. 

Work permits/Age certificates

Work permits and age certificates are not required under the FLSA, but many states require them for workers of certain ages.

Some states require that you obtain an age certificate before hiring a minor. A valid, unexpired certificate of age provides proof that a minor is at least the minimum age to work in a particular occupation and may provide a defense to a claim for child labor violations. 

Meal and rest breaks

In addition to the days and hours of employment requirements, you must also comply with applicable state laws related to meal and rest breaks. While the FLSA does not require meal or rest breaks, the regulations require that rest breaks that last between five and 20 minutes must be paid. Meal periods of 30 minutes or more may be unpaid.   

Postings

Employers who hire minors may be required to display additional postings. Federal law requires FLSA-covered employers to conspicuously post the “Employee Rights Under the Fair Labor Standards Act” poster, which includes information related to child labor. Some states have separate child labor posters.

Creating internship programs

As a general rule, the FLSA requires “for-profit” employers to pay employees for work. In some instances, however, interns and students may not be considered “employees” and therefore may not be entitled to compensation.

To determine which restrictions apply, courts examine the “economic reality” of the working relationship to see which party is the “primary beneficiary.” If the employer is the primary beneficiary, the intern must be paid. If the intern is the primary beneficiary, the intern may be unpaid.


Seven-Factor test

The “primary beneficiary test” includes seven factors, though no single factor is determinative.

  1. The extent to which the intern and employer clearly understood that there is no expectation of compensation (any promise of compensation suggests the intern is an employee);
  2. The extent to which the internship provides training that would be similar to that of a school;
  3. The extent to which the internship is tied to the intern’s integrated coursework or academic credit;
  4. The extent to which the internship accommodates the intern’s academic commitments by corresponding to the school calendar;
  5. The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning;
  6. The extent to which the intern’s work complements the work of paid employees while providing significant educational benefits to the intern; and
  7. The extent to which the intern and the employer understand the internship is conducted without entitlement to a paid job after the internship.

Be careful to examine the requirements under both federal and state law. And also review educational documentation to ensure your internship program aligns with the intern’s educational program.

To avoid blurring any lines, do not use interns to fill open positions and refrain from giving any assurances of a job after the internship ends.

Conclusion

Interns and youth workers can add valuable talent to your business this summer. So it’s important to understand the specific rules surrounding interns and minors.

Susan Boone is a partner in Fisher Phillips’ Columbia, SC office where she is an integral member of the firm’s Wage and Hour Practice Group. Before joining Fisher Phillips, Susan was the second-ranking official at the United States Department of Labor’s Wage and Hour Division in Washington, D.C. 

Cheryl Pinarchick is Regional Managing Partner of Fisher Phillips’ Boston office where she Co-Chairs the firm’s Pay Equity Practice Group. She has a sophisticated wage and hour practice and has obtained favorable outcomes for client in wage and hour matters, including class and collective actions arising under the Fair Labor Standards Act and various state laws.

Edward Harold is Regional Managing Partner of Fisher Phillips’ New Orleans office where he Chairs the firm's Retail Industry Team. His practice is primarily devoted to employment litigation in both state and federal courts, and he is also known for assisting employers in managing employee attendance, leave and various other workplace issues.

 

 

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