New Child Labor Regs Expand "Safe" Jobs for Teens (8/10)

The DOL recently issues new regulations updating the FLSA child labor prohibitions.  Nonagricultural jobs have been expanded, particularly those involving intellectual and artistic work, such as computer programming and teaching.  Find out what the new rules allow.

The Department of Labor (DOL) issued new child labor regulations to expand the types of nonagricultural, nonhazardous jobs teenagers can work.  The agency updated its rules to reflect its enforcement experience with teen workers and recommendations from the National Institute for Occupational Safety and Health (NIOSH) made in 2002.  The changes allow young workers more access to “white collar” jobs such as in advertising, teaching, banking, and information technology.  In addition, the regulations incorporate increased penalties for child labor violations included in the Genetic Information and Nondiscrimination Act (GINA).  The new regulations were initially proposed in 2007 and issued as a final rule May 20, 2010.  They took effect July 19, 2010.  Oppressive Child Labor Prohibited Generally, the Fair Labor Standards Act (FLSA) prohibits “oppressive child labor” and so restricts most minors under the age of 14 from working in any occupation and places time and duties limits on kids who are under 18. The law is intended to ensure that children remain in school and to protect them from “oppressive” labor conditions that would endanger their health or safety.  The FLSA defines “oppressive child labor” to mean a condition of employment under which:  (1) a child under age 16 is employed in any occupation; or (2) an employee who is 16 or 17 works in an occupation that the Secretary of Labor declares by order to be particularly hazardous for children between those ages, or to be detrimental to their health or well-being.  However, regulations implementing the FLSA allow the employment of children ages 14 and 15 in certain industries and at times that do not interfere with their schooling.  The new regulations update these rules pertaining to nonagricultural jobs. New Opportunities for Teens According to the DOL, the new rules, updating 29 C.F.R. §§570.31 et seq., expand opportunities for younger workers “to gain safe, positive work experience in fields such as advertising, teaching, banking and information technology, as well as through school-supervised work-study programs.”  In particular, the new regulations: 1.     Revise the section allowing 14- and 15-year-olds to work so that it no longer limits them only to retail, food service, and gasoline service establishments.  The new regulations now specifically allow these minors to work doing office and clerical work; work of an intellectual or artistically creative nature such as computer programming, the writing of software, teaching or performing as a tutor, serving as a peer counselor or teacher’s assistant, singing, the playing of a musical instrument, and drawing; cooking with electric or gas grills which does not involve cooking over an open flame; cashiering, selling, modeling, art work, and work in advertising departments; bagging and carrying out customers’ orders; kitchen work and other work involved in preparing and serving food and beverages; and lifeguarding for teens 15 or older. 2.     Clarify that minors 14 and 15 may not work in non-charitable “youth peddling,” or door-to-door sales.  This section does not restrict charitable door-to-door sales on behalf of “eleemosynary organizations,” such as Girl Scout cookie sales or school fundraising events where the minors are truly volunteers. 3.     Allow 14 and 15-year olds to participate in appropriate school work-study programs.   Minors who participate in school supervised and administered work-study programs that meet certain DOL criteria will be assumed to be working in appropriate jobs that will not be considered “oppressive child labor.” 4.     Permit 16- and 17-year-olds to operate certain bakery machines.  Specifically, these teens, under certain conditions, can operate power-driven pizza-dough rollers and portable, countertop food mixers.   5.     Implements new child labor penalties.  The GINA law, in addition to prohibiting discrimination based on genetic information, increased penalties for child labor violations.  Employers that violate the FLSA’s child labor restrictions now will be subject to civil penalties of up to $11,000 per violation and up to $50,000 for violations resulting in a child’s serious injury or death.  Penalties can be doubled to up to $100,000 for repeated or willful violations. New Regulations May Mean More Enforcement Many HR and legal experts are predicting that the DOL will step up its enforcement of FLSA issues, including child labor restrictions.  The Secretary of Labor recently added 250 more field investigators and launched the DOL’s “We Can Help” campaign instructing employees on how to file complaints, so you need to be prepared for increased scrutiny of all of your wage and hour practices.  Further, since many states also restrict the ages, hours, and occupations in which children may be employed, you need to check your state law requirements, too.