Back to School

With schools back in session, now is the time for employers to review hiring, payment and scheduling practices for workers under the age of 18. The myriad federal and state child labor laws that employers must heed range from work permit requirements to the hours and type of work performed, all of which vary based on an employee's age and whether school is in session.

Federal and State Laws Governing Child Labor

All persons under the age of 18 are covered by the Fair Labor Standards Act (FLSA). States have their own similar legislation. In New York, for example, children under the age of 18, including high school graduates, are covered by the state's child labor provisions.

California has adopted slightly different standards. That state's youth labor provisions cover anyone under the age of 18 who has not graduated from high school. High school graduates, or those who have passed the state's high school proficiency exam and are under 18, are for the most part exempt. Yet, school dropouts under the age of 18 are still covered by the state's compulsory education laws and, thus, are subject to the child labor laws. As a result, since the state mandates completion of high school or an equivalent, truants cannot be issued a work permit.

Many state laws and federal law prohibit the employment of children younger than 14. However, the FLSA and several states have created exceptions for those working in the domestic, entertainment and agricultural industries. Youth employees in those industries are often subject to very specific state requirements, especially in California and New York. Those requirements are not covered in this article.

Work Permits (aka, 'Working Papers')

Federal law does not require youth workers to obtain a work permit. However, several states, including California and New York, mandate employment permits prior to obtaining a job.

In California, a permit issued by a student's school district is required for employment year-round, including holidays and summer vacation. The requirement ends when a student turns 18, graduates from high school or passes the state's proficiency exam. Minors must be at least 12 to be issued a work permit. California law provides for limited exceptions to the work permit requirement. There's an exemption for minors who are self-employed, work for certain types of family businesses, deliver newspapers or irregularly perform odd jobs, such as babysitting or yard work. Employers in California should remember that permits are issued for specific employment at a specific address, and permits issued during the prior school year expire five days after the opening of the next school year.

In New York, employment certificates, or “working papers,” are required for anyone under the age of 18, including high school graduates. New York issues working papers in different colors that will inform an employer of a youth worker's age and whether the permit is valid during the school year or only when school is out of session. Limited exceptions to the permit requirement exist; based on age, number of hours worked and type of work performed. Unlike California, minors in New York may use the same permit for different employers, and minors must have the correct permit based on their age group.

Hours of Work

Depending on a minor's age, federal law limits the number of hours a minor may work. Under the federal rules, once employees are 16 years old, there are no limits on the number of hours they can work. However, the FLSA does limit the hours of work for 14- and 15-year-olds. These limitations include working no more than three hours on a school day, including Friday, and no more than 18 hours per week when school is in session; and no more than eight hours per day and 40 hours per week when school is out. In addition, students are restricted to working between 7 a.m. and 7 p.m. on any day. This timeframe is extended to 9 p.m. from June 1 to Labor Day. Employees who are 16 and 17 years old may work unlimited hours under the FLSA.

California and New York have established strict hour limits based on the age of an employee and the time of year the work is performed. The limits for California, which closely follow New York's requirements, are as follows:

'

• 12- and 13-year-olds working in eligible industries may only work during school holidays and vacations, which likely include weekends, according to the Department of Industrial Relations. The state statutes don't specify maximum working hours. Employers should follow the maximum hourly limits when school is out of session: No more than eight hours per day and 40 hours per week.
• 14- and 15-year-olds who have finished seventh grade may work three hours per day outside of school when school is in session, and eight hours per day on any non-school day or when school is not in session. This age group may not work more than 18 hours per week when school is in session and 40 hours per week when school is not in session.
• 16- and 17-year-olds who have finished seventh grade may work four hours per day outside of school when school is in session, and eight hours per day on any non-school day or when school is not in session. This age group may not work more than 48 hours per week whether or not school is in session.

'

California also has adopted the FLSA requirements for when a minor can be scheduled to work, except 16- and 17-year-olds who may only be scheduled from 5 a.m. to 10 p.m., and may end work by 12:30 a.m. on any evening preceding a non-school day.

Permissible Types Of Work

California, New York and federal laws prohibit minors from working in many occupations. Federal law prohibits anyone under the age of 18 from engaging in “hazardous” occupations, which include many construction-related activities as well as the operation of power-driven machinery. In addition, the FLSA as well as California and New York statutes limit the operation of motor vehicles or assistance on motor vehicles to very specific and limited circumstances.

In general, employment in office, clerical, food service and retail establishments is permitted.

Employer Considerations

'

• Federal or state law?: Since in many states ' like New York and California ' laws covering the employment of minors are generally more comprehensive than the FLSA, respective state laws should be consulted and followed (in addition to the FLSA, if an employer is covered by the federal law). The U.S. Department of Labor as well as the states provide detailed fact sheets and child labor law summaries that are critical to understanding the extensive requirements for hiring youth workers.
• Public versus private schools: Federal and state laws mostly defer to the calendar and requirements of the public school district. Thus, private school students will often be subject to the public school district practices for youth workers.
• Wages: All employees, regardless of age, must be paid in accordance with state minimum wage and overtime requirements, and pursuant to the FLSA for employers that are subject to the federal requirements. The FLSA does provide for a subminimum “opportunity wage” for minors. This so-called youth minimum wage only applies to the first 90 calendar days (not days of work) of any new job. Since state minimum wages may be higher, employers are encouraged to consult state law in addition to the FLSA, if covered by both.
• Breaks: Many states, including California and New York, have enacted specific break requirements for all workers regardless of age. However, several states have specific break laws for minors that are different and more extensive than the requirements for adults. Thus, the law of the state in which the underage employee works must be consulted.
• Recordkeeping: Employers are advised to keep permits, as well as the names, dates of birth and addresses of all minors employed along with payroll records, for at least three years.
• Employee classification: This is an important note about “volunteers” and “unpaid interns.” The FLSA provides very narrow circumstances for when someone can be hired in an unpaid position. Unpaid interns or volunteers who are found to be working for the benefit of an employer, as opposed to receiving training or education that would be found in a school environment (among other criteria issued by the Department of Labor) will likely be deemed as employees and must be paid minimum wage and overtime. Recent successful lawsuits seeking back pay and damages for unpaid positions, as well as the Department of Labor, Internal Revenue Service and state labor departments' heightened review of payment policies of interns and volunteers, should put employers on alert when hiring teenagers.
• Safety considerations: The Department of Labor recommends employers take the following steps to ensure the safety of youth workers:
• • Review safety procedures with all employees and first-line supervisors of youth workers;
  • Develop injury and illness prevention programs to identify and solve safety and health problems;
  • Train all workers to recognize safety hazards and best practices for safety; and
  • Inform all youth workers of their rights under the FLSA and state laws.
• Penalties: While states may impose civil penalties for violations of child labor laws, the federal government may impose fines up to $100,000 for the death or serious injury of a youth worker pursuant to the Child Labor Enhanced Penalty Program (CLEPP). Under CLEPP, a “serious injury” is defined as one caused by a child-labor violation resulting in a permanent loss or substantial impairment of one of the senses, of mental functions, or of the function or movement of a body part.

'

Erin Winters is an attorney with Foster Employment Law in Oakland, CA. With offices in Oakland and Columbia, SC, and attorneys admitted in California, Georgia, South Carolina and Washington, the firm provides labor and employment-related legal and litigation services to businesses and public agencies throughout the United States. This article also appeared in Corporate Counsel, an ALM sibling publication of Franchising Business & Law Alert.

With schools back in session, now is the time for employers to review hiring, payment and scheduling practices for workers under the age of 18. The myriad federal and state child labor laws that employers must heed range from work permit requirements to the hours and type of work performed, all of which vary based on an employee's age and whether school is in session.

Federal and State Laws Governing Child Labor

All persons under the age of 18 are covered by the Fair Labor Standards Act (FLSA). States have their own similar legislation. In New York, for example, children under the age of 18, including high school graduates, are covered by the state's child labor provisions.

California has adopted slightly different standards. That state's youth labor provisions cover anyone under the age of 18 who has not graduated from high school. High school graduates, or those who have passed the state's high school proficiency exam and are under 18, are for the most part exempt. Yet, school dropouts under the age of 18 are still covered by the state's compulsory education laws and, thus, are subject to the child labor laws. As a result, since the state mandates completion of high school or an equivalent, truants cannot be issued a work permit.

Many state laws and federal law prohibit the employment of children younger than 14. However, the FLSA and several states have created exceptions for those working in the domestic, entertainment and agricultural industries. Youth employees in those industries are often subject to very specific state requirements, especially in California and New York. Those requirements are not covered in this article.

Work Permits (aka, 'Working Papers')

Federal law does not require youth workers to obtain a work permit. However, several states, including California and New York, mandate employment permits prior to obtaining a job.

In California, a permit issued by a student's school district is required for employment year-round, including holidays and summer vacation. The requirement ends when a student turns 18, graduates from high school or passes the state's proficiency exam. Minors must be at least 12 to be issued a work permit. California law provides for limited exceptions to the work permit requirement. There's an exemption for minors who are self-employed, work for certain types of family businesses, deliver newspapers or irregularly perform odd jobs, such as babysitting or yard work. Employers in California should remember that permits are issued for specific employment at a specific address, and permits issued during the prior school year expire five days after the opening of the next school year.

In New York, employment certificates, or “working papers,” are required for anyone under the age of 18, including high school graduates. New York issues working papers in different colors that will inform an employer of a youth worker's age and whether the permit is valid during the school year or only when school is out of session. Limited exceptions to the permit requirement exist; based on age, number of hours worked and type of work performed. Unlike California, minors in New York may use the same permit for different employers, and minors must have the correct permit based on their age group.

Hours of Work

Depending on a minor's age, federal law limits the number of hours a minor may work. Under the federal rules, once employees are 16 years old, there are no limits on the number of hours they can work. However, the FLSA does limit the hours of work for 14- and 15-year-olds. These limitations include working no more than three hours on a school day, including Friday, and no more than 18 hours per week when school is in session; and no more than eight hours per day and 40 hours per week when school is out. In addition, students are restricted to working between 7 a.m. and 7 p.m. on any day. This timeframe is extended to 9 p.m. from June 1 to Labor Day. Employees who are 16 and 17 years old may work unlimited hours under the FLSA.

California and New York have established strict hour limits based on the age of an employee and the time of year the work is performed. The limits for California, which closely follow New York's requirements, are as follows:

'

• 12- and 13-year-olds working in eligible industries may only work during school holidays and vacations, which likely include weekends, according to the Department of Industrial Relations. The state statutes don't specify maximum working hours. Employers should follow the maximum hourly limits when school is out of session: No more than eight hours per day and 40 hours per week.
• 14- and 15-year-olds who have finished seventh grade may work three hours per day outside of school when school is in session, and eight hours per day on any non-school day or when school is not in session. This age group may not work more than 18 hours per week when school is in session and 40 hours per week when school is not in session.
• 16- and 17-year-olds who have finished seventh grade may work four hours per day outside of school when school is in session, and eight hours per day on any non-school day or when school is not in session. This age group may not work more than 48 hours per week whether or not school is in session.

'

California also has adopted the FLSA requirements for when a minor can be scheduled to work, except 16- and 17-year-olds who may only be scheduled from 5 a.m. to 10 p.m., and may end work by 12:30 a.m. on any evening preceding a non-school day.

Permissible Types Of Work

California, New York and federal laws prohibit minors from working in many occupations. Federal law prohibits anyone under the age of 18 from engaging in “hazardous” occupations, which include many construction-related activities as well as the operation of power-driven machinery. In addition, the FLSA as well as California and New York statutes limit the operation of motor vehicles or assistance on motor vehicles to very specific and limited circumstances.

In general, employment in office, clerical, food service and retail establishments is permitted.

Employer Considerations

'

• Federal or state law?: Since in many states ' like New York and California ' laws covering the employment of minors are generally more comprehensive than the FLSA, respective state laws should be consulted and followed (in addition to the FLSA, if an employer is covered by the federal law). The U.S. Department of Labor as well as the states provide detailed fact sheets and child labor law summaries that are critical to understanding the extensive requirements for hiring youth workers.
• Public versus private schools: Federal and state laws mostly defer to the calendar and requirements of the public school district. Thus, private school students will often be subject to the public school district practices for youth workers.
• Wages: All employees, regardless of age, must be paid in accordance with state minimum wage and overtime requirements, and pursuant to the FLSA for employers that are subject to the federal requirements. The FLSA does provide for a subminimum “opportunity wage” for minors. This so-called youth minimum wage only applies to the first 90 calendar days (not days of work) of any new job. Since state minimum wages may be higher, employers are encouraged to consult state law in addition to the FLSA, if covered by both.
• Breaks: Many states, including California and New York, have enacted specific break requirements for all workers regardless of age. However, several states have specific break laws for minors that are different and more extensive than the requirements for adults. Thus, the law of the state in which the underage employee works must be consulted.
• Recordkeeping: Employers are advised to keep permits, as well as the names, dates of birth and addresses of all minors employed along with payroll records, for at least three years.
• Employee classification: This is an important note about “volunteers” and “unpaid interns.” The FLSA provides very narrow circumstances for when someone can be hired in an unpaid position. Unpaid interns or volunteers who are found to be working for the benefit of an employer, as opposed to receiving training or education that would be found in a school environment (among other criteria issued by the Department of Labor) will likely be deemed as employees and must be paid minimum wage and overtime. Recent successful lawsuits seeking back pay and damages for unpaid positions, as well as the Department of Labor, Internal Revenue Service and state labor departments' heightened review of payment policies of interns and volunteers, should put employers on alert when hiring teenagers.
• Safety considerations: The Department of Labor recommends employers take the following steps to ensure the safety of youth workers:
• • Review safety procedures with all employees and first-line supervisors of youth workers;
  • Develop injury and illness prevention programs to identify and solve safety and health problems;
  • Train all workers to recognize safety hazards and best practices for safety; and
  • Inform all youth workers of their rights under the FLSA and state laws.
• Penalties: While states may impose civil penalties for violations of child labor laws, the federal government may impose fines up to $100,000 for the death or serious injury of a youth worker pursuant to the Child Labor Enhanced Penalty Program (CLEPP). Under CLEPP, a “serious injury” is defined as one caused by a child-labor violation resulting in a permanent loss or substantial impairment of one of the senses, of mental functions, or of the function or movement of a body part.

'

Erin Winters is an attorney with Foster Employment Law in Oakland, CA. With offices in Oakland and Columbia, SC, and attorneys admitted in California, Georgia, South Carolina and Washington, the firm provides labor and employment-related legal and litigation services to businesses and public agencies throughout the United States. This article also appeared in Corporate Counsel, an ALM sibling publication of Franchising Business & Law Alert.