Volume 3, Issue 18
December 30, 2004
The Fair Labor Standards Act ("FLSA") and its corresponding regulations issued by the U.S. Department of Labor ("DOL") restrict the use of child labor. As a general rule, the minimum age for employment in non-agricultural jobs is 16. The DOL also permits 14- and 15-year-olds to work in certain limited jobs in retail, food service, and gasoline service establishments but it prohibits their employment in other occupations. On December 16, 2004, the DOL published final regulations implementing changes to the FLSA's child labor provisions. The new rules, which become effective 60 days from publication (February 14, 2005), expand protections for youth working in jobs that require restaurant cooking, roofing and driving, among other changes.
The new regulations incorporate the requirements of the Drive for Teen Employment Act of 1998, which delineated what limited on-the-job driving may be performed by qualified 17-year-olds. Generally, workers under 18 years of age may not work as motor vehicle drivers. However, 17-year-olds may engage in "incidental and occasional driving." The regulations clarify that "incidental and occasional driving" by 17-year-olds must the following criteria:
- The automobile or truck does not exceed 6,000 pounds gross vehicle weight, the vehicle is equipped with a seat belt or similar restraining device for the driver and for any passengers and the employer has instructed the employee that such belts or other devices must be used.
- The driving is restricted to daylight hours.
- The minor holds a State license valid for the type of driving involved in the job performed and has no records of any moving violations at the time of hire.
- The minor has successfully completed a State-approved driver education course.
- The driving does not involve: the towing of vehicles; route deliveries or route sales; the transportation for hire of property, goods, or passengers; urgent, time-sensitive deliveries; or the transporting at any one time of more than three passengers, including the employees of the employer.
- The driving performed by the minor does not involve more than two trips away from the primary place of employment in any single day for the purpose of delivering goods of the minor's employer to a customer (except urgent, time-sensitive deliveries which are completely banned).
- The driving performed by the minor does not involve more than two trips away from the primary place of employment in any single day for the purpose of transporting passengers (other than the employees of the employer).
- The driving takes place within a thirty (30) mile radius of the minor's place of employment.
- The driving is only occasional and incidental to the employee's employment.
The term "occasional and incidental" is defined by the regulations as no more than one-third of an employee's work time in any workday and no more than 20 percent of an employee's work time in any workweek. In turn, the term "urgent, time-sensitive deliveries" means trips which, because of such factors as customer satisfaction, the rapid deterioration of the quality or change in temperature of the product, and/or economic incentives, are subject to time-lines, schedules, and/or turn-around times which might impel the driver to hurry in the completion of the delivery. Prohibited trips would include, but are not limited to, the delivery of pizzas and prepared foods to the customer; the delivery of materials under a deadline (such as deposits to a bank at closing); and the shuttling of passengers to and from transportation depots to meet transport schedules. "Urgent, time-sensitive deliveries" would include the delivery of people and things to the employer's place of business as well as from that business to some other location and it would not depend upon points of origin and termination, and:
Regulations are also included to modernize the provisions regarding what types of kitchen work and cooking 14- and 15-year-olds are permitted to perform. More specifically, the new regulations:
- Permit minors to engage in kitchen work and other work involved in preparing and serving food and beverages, including operating machines and devices used in performing such work such as dishwashers, toasters, dumbwaiters, popcorn poppers, milk shake blenders, coffee grinders, automatic coffee machines, devices used to maintain the temperature of prepared foods such as warmers, steam tables, and heat lamps), and microwave ovens that are used only to warm prepared food and do not have the capacity to warm above 140 degrees.
- Allow minors to clean kitchen equipment that is not otherwise prohibited, remove oil or grease filters, pour oil or grease through filters, and move receptacles containing hot grease or hot oil, but only when the equipment, surfaces, containers and liquids do not exceed a temperature of 100 degrees.
- Prohibit baking and cooking, except that cooking is permitted with electric or gas grilles which do not involve cooking over an open flame. However, minors are not authorized to cook with equipment such as rotisseries, broilers, pressurized equipment including fryolators, and cooking devices that operate at extremely high temperatures such as "Neico broilers." Cooking is permitted with deep fryers that are equipped with and utilize a device which automatically lowers the baskets into the hot oil or grease and automatically raises the baskets from the hot oil or grease.
The regulations also expanded the current prohibition against minors working in roofing occupations to encompass all work on or about a roof, including work performed upon or in close proximity to a roof. Under the new provisions, minors may only perform such work if in an apprenticeship or student-learner program. "On or about a roof," includes all work performed upon or in close proximity to a roof, including carpentry and metal work, alterations, additions, maintenance and repair, including painting and coating of existing roofs; the construction of the sheathing or base of roofs wood or metal), including roof trusses or joists; gutter and downspout work; the installation and servicing of television and communication equipment such as cable and satellite dishes; the installation and servicing of heating, ventilation and air conditioning equipment or similar appliances attached to roofs; and any similar work that is required to be performed on or about roofs. "Roofing operations" means all work performed in connection with the installation of roofs, including related metal work such as flashing, and applying weatherproofing materials and substances (such as waterproof membranes, tar, slag or pitch, asphalt prepared paper, tile, composite roofing materials, slate, metal, translucent materials, and shingles of asbestos, asphalt, wood or other materials) to roofs of buildings or other structures. The term also includes all jobs on the ground related to roofing operations such as roofing laborer, roofing helper, materials handler and tending a tar heater.
Additionally, the new regulations incorporate the provisions of the Compactors and Balers Safety Standards Modernization Act which established criteria permitting 16 and 17-year-olds to load, but not operate or unload, certain waste-material baling and compacting equipment.
Employers should also be aware that the new regulations have increased the civil penalty imposed for child labor violations to $11,000 per violation.
The complete text of the rule changes are available online. The DOL has also revised its existing compliance assistance materials to comport with these new rules. These materials may be found at www.youthrules.dol.gov and www.wagehour.dol.gov.
Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.