Dear Littler: We’re a nationwide employer excited that many of the pandemic-related restrictions are starting to ease up. In pre-COVID times, summer was always our busiest season. We’re looking forward to ramping up summer hiring, but have so far found it challenging to fully staff all our locations. We’re thinking of expanding our recruitment efforts to those under 18 to help fill the void, at least through the summer months. Before we start hiring younger employees, are there special employment issues to consider with this age group?
—Finally Ready to Hire
Dear Finally Ready to Hire,
We know it’s time for summer when the seasonal minor employee questions start rolling in! Yes, there are various statutes and regulations at the federal, state and local levels, of which you should be aware prior to hiring minors. Indeed, employers' summer reading should include a review of applicable statutes and regulations governing youth employment. We’ve addressed some of the more prevalent issues below.
Permitted and Prohibited Employment
You don’t identify what type of business you are, Finally Ready to Hire, so please note that both federal and state laws place restrictions on the type of employment minors may perform and the equipment they may use. The federal Fair Labor Standards Act (FLSA) provides that “[n]o employer shall employ any oppressive child labor in commerce or in the production of goods for commerce or in any enterprise engaged in commerce or in the production of goods for commerce.” The U.S. Department of Labor’s (DOL) Wage and Hour Division is charged with enforcing federal child labor laws and has created detailed regulations governing prohibited and permitted employment for minors falling in one of two categories: (1) 16 and 17 years old; and (2) 14 and 15 years old. Moreover, the FLSA permits states to enact more restrictive child labor laws. Accordingly, employers cannot assume that adhering to federal standards will guarantee state law compliance. Employers should follow whichever law provides minor employees with the most protection.
Ages 16 & 17
Under the FLSA, “oppressive child labor” includes conditions of employment the secretary of labor deems “particularly hazardous.”1 The DOL has promulgated regulations related to the following non-agricultural occupations and equipment it deems particularly hazardous for 16- and 17-year-old employees:
Limited exceptions may apply. For example, concerning “occupations involved in the operation of bakery machines,” 16- and 17-year-old employees may operate “lightweight, small capacity, portable counter-top power-driven food mixers that are, or are comparable to, models intended for household use” if the mixer “is not hardwired into the establishment’s power source, is equipped with a motor that operates at no more than ½ horsepower, and is equipped with a bowl with a capacity of no more than five quarts.”3
As noted above, states can also enact their own child labor provisions. Federal law controls in states without occupation and equipment laws governing the employment of 16- and 17-year-old employees (e.g., Arkansas, Idaho, Missouri). Most states, however, have enacted their own child labor laws. Although some state laws may appear to mirror federal proscriptions, what may seem like small differences can cause employers large problems, especially if the state law differences provide greater employee protections. As with most wage and hour laws, state laws tend to be far more cumbersome than their federal counterparts and may include prohibitions not covered under the FLSA.
Where state laws appear to be less restrictive than the FLSA, such as Colorado’s, which permits a 16-year-old employee to work in an occupation involving the use of motor vehicles if properly licensed,4 employers should follow the FLSA, which permits only limited “incidental and occasional” driving by 17-year-old employees.5
Ages 14 & 15
In addition to proscribing certain prohibited employment for minors under 16 years old, the FLSA regulations also address permitted occupations for 14- and 15-year-old employees. As noted above, where different or additional state law provisions also exist, to the extent they are more restrictive, employers should follow them.
In addition to the prohibitions applicable to minors age 16 and 17 years old, 14- and 15-year-old employees cannot perform certain work related to the following occupations or equipment:
As with prohibited occupations for 16- and 17-year-old employees, limited exceptions may apply. Moreover, exceptions may apply for minors enrolled in and employed in qualifying work and career exploration programs, or enrolled in qualifying work-study programs.7
In addition to detailing what occupations 14- or 15-year-old employees cannot perform and equipment they cannot use, FLSA regulations set forth what occupations said minors can perform and what equipment they can use:
Hours of Employment
The FLSA regulates not only the type of work for minors, but also the hours of employment. The FLSA’s hours requirements are only applicable to minors ages 14 or 15 years. However, various states have enacted their own laws governing when and how long minors of any age may be employed. Certain states, such as Indiana and Louisiana, may apply one standard for 16-year-old employees and another for minors that are 17.
Additionally, different time and hour restrictions may apply to work performed on school days or days preceding school days, and potentially relaxed standards during summer may not apply to minor employees enrolled in summer school.
Under the FLSA, a 14- or 15-year-old employee may not work:
The FLSA does not expressly limit how many days per week a 14- or 15-year-old employee can work. However, some states, such as Alabama, Delaware, and Massachusetts, do. Accordingly, when scheduling minors, employers must ensure that the minor employee does not work more days than permitted. A minor employee should also not be permitted to cover another employee’s shift if that additional shift would violate the restrictions provided by federal and state law.
The FLSA does not regulate how many hours per day or week a 16- or 17-year-old employee may work, nor does it address the maximum number of days a 16- or 17-year-old employee may work per workweek. For employers operating in states such as Arizona, Georgia, and Oklahoma that also have no time and hour restrictions applicable to these particular minor employees, employers need only comply with relevant time and hour restrictions applicable to adult employees.
However, many states have time and hour requirements for employees ages 16 or 17 (e.g., Michigan, New Hampshire, Pennsylvania). As with standards applicable to 14- and 15-year-old employees, these may vary depending on whether school is in session and whether work is performed on a school day or a day preceding a school day. Additionally, there may be a limit on how many days per week a 16- or 17-year-old employee may work.
As indicated above, different standards may apply depending on whether school is in session. Although generally summer provides minors an academic reprieve, some students may be enrolled in summer school, particularly given the disruptions COVID-19 caused to the regular school year. In some states the “in session” time and hour restrictions apply equally to minors enrolled in summer school (e.g., 14- and 15-year-old employees in Pennsylvania). Accordingly, employers must determine whether states in which they do business have such a requirement and, if so, whether any of their minor employees are or will be enrolled in summer school. Employers must also make certain that this information is conveyed to individuals charged with scheduling workers to protect against scheduling minors to work too many daily or weekly hours.
It is important to recognize there is no uniform age division among the states concerning time and hour restriction laws for minor employees. Therefore, employers with multi-state operations should not attempt to construct and apply a nationwide child labor time and hour policy. Instead, employers should conduct a state-by-state analysis to ensure compliance.
Meal & Rest Periods
In addition to understanding daily and weekly time and hour restrictions for minor employees, you should be aware that some states impose more stringent meal and rest period requirements than does federal law, or impose meal and rest period requirements that do not apply to adult workers. The FLSA does not require that employees receive rest or meal breaks, but federal regulations specify that rest breaks between 5 and 20 minutes must be paid. Bona fide meal periods of 30 minutes or more during which an employee is not expected or required to perform work, however, may be unpaid.
Approximately 19 states have meal and/or rest requirements for adults. Twenty-three states require meal and rest periods for minors. Some of those states overlap, such as Delaware, Illinois, Kentucky, Oregon, Washington, and West Virginia, but many do not have applicable meal and/or rest period provisions for adults. Moreover, around half the states have specific provisions covering meal and/or rest periods for either all minors (e.g., Alaska, Kentucky, Maryland) or for minors of a certain age (e.g., Alabama and Hawaii, 14- & 15-year-old employees). Some states have enacted industry-specific regulations for minors (e.g., California – entertainment industry; Utah – minors engaged in door-to-door sales).
Some states, such as Alabama, Florida, and Wisconsin, require employers to post a child labor poster that includes the state’s meal and/or rest period requirements. Moreover, many states have stricter recordkeeping requirements for minors. For example, New Jersey requires employers to keep a record of the hours of beginning and ending meal periods for a year after they are made, but does not have equivalent requirements for adult meal and rest periods.
Generally, in the absence of child labor-specific meal and rest period requirements, adult standards, if applicable, will apply to minor employees.
Maintaining adequate workforce levels within a set budget is a constant challenge, particularly with the uncertainty the pandemic has brought for employers. Under tight constraints, employers may look for creative solutions to resolve staffing shortfalls. The option you are considering, Finally Ready to Hire, is hiring youth employees. Younger employees' lack of work experience generally means they do not command as significant compensation as more seasoned workers. In certain instances they may also legally be paid a subminimum wage, possibly less if they work as interns. However, there are risks associated with these practices.
Under the “opportunity wage” exception to the FLSA, employees under the age of 20 may be paid $4.25 per hour during the first 90 consecutive days of employment, which is $3.00 per hour less than the normal minimum wage required by the FLSA. The eligibility period for this exception runs for 90 consecutive calendar days, beginning with the employee’s first day of work for the employer. It does not matter when the job offer was made or accepted (or when the employee was considered "hired"). Instead, the 90-day period starts with (and includes) the first day of work for the employer and is counted as consecutive days on the calendar, not days of work. After 90 days of employment, or when the worker reaches age 20 (whichever comes first), the worker must receive the full amount of minimum wage then in effect. An employer violates the anti-displacement provision of the FLSA if that employer hires only employees under the age of 20 and employs them only for 90 days each, which can result in the employee being awarded “make whole” relief, to include reinstatement to their previous or an equivalent position of employment and payment of lost wages or benefits. Similarly, an employer may not terminate or reduce the hours of an older employee in order to make room for an employee under 20 years of age who may be paid subminimum wage.
Many states, including California, New York, Texas, Florida, and Massachusetts, follow the FLSA and set a “youth minimum wage” of $4.25 per hour for the first 90 days of continuous employment. However, the FLSA does not preempt state laws that require the payment of a higher amount of minimum wage to underage workers. If the law of a given state provides for a higher minimum wage to be paid to such employees, employers must comply with the state law and pay the higher minimum wage. For example, in Washington State, while the minimum wage to be paid to employees under the age of 16 is at least 85% of the state minimum wage, the full amount of the state minimum wage must be paid to all employees over 16. In Illinois, state law requires that workers under 18 years of age who work fewer than 650 hours in a year be paid a minimum wage of at least $8.50 per hour, which is set to gradually rise on a yearly basis, ultimately to $13.00 per hour as of 2025. In Arizona, state law provides no exception to the general state minimum wage laws for workers under the age of 20, and Arizona state law requires all such employees, including but not limited to student learners and student workers, to be paid the full amount of the standard Arizona minimum wage. Employers with operations in different states are encouraged to review the laws of the states in which they operate in order to ascertain whether the state follows the FLSA “youth minimum wage” approach or if those states establish their own, higher minimum wage for such underage employees.
Internships can be mutually beneficial for employers and interns. Interns receive valuable work and life experience, develop contacts with potential future employers, and may receive school credit. Employers, in turn, get to train, mentor, and evaluate the work ethic and skill of potential future applications. Notwithstanding the potential mutual benefits of internships, they also present a host of potential challenges for employers.
An employer’s labeling of a working relationship as an “internship” or “fellowship” alone does not relieve an employer of its wage and hour obligations. In January 2018, the U.S. Department of Labor issued Field Assistance Bulletin No. 2018-2 adopting the flexible “primary beneficiary” test to determine whether an individual is an intern or an employee.10 According to the DOL, the following non-exhaustive list of seven factors must be considered in determining whether the FLSA applies to an intern, including:
The DOL noted in its Field Assistance Bulletin No. 2018-2 that the primary beneficiary test is “flexible[,]” no single factor is dispositive of the question and, indeed, “whether an intern or trainee is an employee under the FLSA necessarily depends on the unique circumstances of each case.”11
Additionally, employers should note that state laws and the guidance of state agencies may also affect their decisions about internship programs. Some states, such as New Jersey, maintain their own tests for determining the classification of interns or trainees for wage and hour purposes under state law. Some states also consider interns to be “employees” for purposes of their antidiscrimination statutes. Some jurisdictions—including California, Washington, the District of Columbia, Illinois, Maryland, and New York—offer some protection for interns from discrimination and/or sexual harassment.
With the proliferation of COVID-19 vaccinations, and the resulting anticipated increase in summer youth hiring, internships will likely return in summer 2021 and beyond. But employers must note the potential pitfalls of unpaid internships, while keeping in mind that the plaintiffs’ bar frequently files lawsuits against employers in various industries, alleging they misclassified employees as interns. The suits seek compensatory and punitive damages for federal and state minimum wage and overtime violations, as well as penalties associated with state wage payment provisions.
As a result, the cost-benefit of classifying a relationship as an internship will quickly dissolve if the arrangement does not meet legal standards. A noncompliant employer could end up paying what those individuals would have been entitled to earn as employees, plus additional damages, penalties, and attorneys' fees and costs of both their own counsel and counsel for the plaintiff(s). Accordingly, employers must perform a thorough examination of the program prior to (and possibly during) the internship to determine whether it will pass muster under federal and state law.
Employment Eligibility & Verification
Maintaining a legal workforce is essential and requires that an employer take specific compliance actions. Additional steps must be taken when hiring minors. First, an employer must determine whether a minor is legally authorized to work in the United States. Next, it must establish the minor applicant is legally permitted to be employed. To this end, employers must comply with federal I-9 and state work permit requirements.
The federal Immigration Reform and Control Act of 1986 (IRCA) prohibits knowingly employing an individual who is not authorized to work in the United States.12 The IRCA requires that employers document new hires' identity and authorization to work in the U.S. by completing a Form I-9 within a prescribed timeframe. It also requires that I-9 documentation be retained during the individual's employment and for three years after the hire date, or one year after the employee is terminated, whichever results in a longer retention period. Additional prohibitions against employing individuals who cannot legally work in the U.S. may be found in state law, as might authentication and document retention requirements. Accordingly, employers must take active steps to ensure immigration-related federal and state requirements have been satisfied when a minor is hired.
Failure to authenticate a new hire's legal work status can result in penalties. Moreover, depending on the employer's business, the ability to bid for and obtain federal, state, or local government contracts can be impacted. These requirements apply regardless of whether a new hire is an adult or a minor.
State Work Permits
There is no work permit requirement under federal law. However, most states have work permit requirements, which vary by jurisdiction. In these states, employers must examine additional pre-hire documentation, i.e., a work permit, before hiring a minor. States including Alabama, Arizona, Colorado, Florida, Georgia, Idaho, Kentucky, Mississippi, Montana, Utah and Wyoming do not have a permit requirement.
Normally, work permits are issued by the local school authority. However, in some jurisdictions, permits may be issued by the state labor department. State laws will generally outline:
Employers must understand that permits contain limitations such as what type of employment is allowed while working under a permit. A permit may be restricted to a specific employer and thereby be incapable of transference to a new employer. Additionally, upon termination of a minor's employment, an employer may have to return the permit to the issuing agency. Permits will also expire after a certain amount of time, so employers must ensure permits are valid before and during employment.
Proof of Age
Federal regulations recommend that employers obtain an age certificate for a minor employee if:
State law, however, may require that an age certificate be obtained before employing a minor, and kept on file or posted during the minor’s employment (for example, in California, Connecticut, Iowa, and Minnesota). Because requirements vary by state, employers cannot rely on uniform pre-hire policies and procedures. Instead, they must familiarize themselves with applicable laws and create state-specific guidelines to ensure compliance.
The DOL’s Wage and Hour Division issues federal age certificates. State certificates may be issued by the state labor department or local school officials, depending on the jurisdiction. A valid, unexpired federal age certificate, or a certificate issued by a DOL-approved state14 (e.g., age, employment, or working certificate or permit) provides employers with proof the minor is old enough to perform a certain occupation or use certain equipment, and may act as a defense against child labor law violation allegations.
One requirement for obtaining a federal age certificate is providing documentation that establishes the minor’s age, e.g., birth certificate, baptism record, or school record.15 Additional forms of documentation may suffice when obtaining a state age or employment certificate, or work permit, so employers should understand unique state law requirements where they operate. Employers must also be conscious of additional federal and state law informational and documentary requirements for obtaining qualifying certificates.
Employers might be required to display special posters about child labor law depending on whether the employer already employs minors, and what type of work the minor employees perform.
On the federal level, all FLSA-covered employers are required to post the “Employee Rights Under the Fair Labor Standards Act” poster, which includes a section on child labor and states the minimum ages required for various non-farm jobs.
Many states have their own child labor posters and requirements. Some broadly require posting (e.g., Alaska, Kentucky), others require it only if minors are actually employed (e.g., District of Columbia, Florida, New Hampshire). Some state posting requirements are based on the number of employees generally (e.g., four in Arkansas) or the presence of employees over a certain age (e.g., 14 in Indiana, 16 in Missouri). Some states require employers to post lists of minor employees (e.g., Nebraska), age-related permits or certificates (e.g., Alabama, New Mexico), or break and meal periods for minors (e.g., New York). At least one state makes its child labor poster optional altogether (e.g., Texas). States may also carry penalties for employers who do not meet posting requirements.
Minor Consent Issues
Generally, to enter into a valid contract, all parties must have the legal capacity to do so. In the United States, minors (usually individuals under the age of 18) are deemed to lack the mental capacity to enter into agreements that are binding under state or federal law because the minors are considered to lack a sufficient understanding of the obligations, legal terms, and consequences that a contract imposes on them. Note that as with other issues involving the employment of minors, the laws governing contractual capacity vary by jurisdiction and by type of agreement. In general, minors can enter into contracts with employers, but the contracts might be voidable. For instance, in New York, Illinois, and California, a minor may void the contract or choose to disaffirm it. In California, a minor may even disaffirm a contract in its entirety at any time until they reach 18 years of age and for a reasonable period after they turn 18. See Cal. Fam. Code 6710 (“a contract of a minor may be disaffirmed by the minor before majority or within a reasonable time afterwards”).
As detailed below, this means that employers may need to revisit their approach when asking minors to consent to arbitration agreements, background check authorizations, or pre-employment drug screenings.
The ability of a minor to disaffirm a contract could include arbitration agreements. In one case before the California Court of Appeals, for example, the court held that a minor may not enter into an arbitration agreement in the same manner as adults. This issue has not been tested in every jurisdiction, so employers should proceed with caution when considering entering into such agreements with employees under age 18.
Under federal and state background check laws, minors cannot consent to a background check. Under the Fair Credit Reporting Act, an employer may not procure a consumer report for employment purposes unless the individual consents in writing. See 15 U.S.C. 1681(b)(2)(A). As mentioned above, a minor does not have the legal capacity to consent. Unless a minor is emancipated, parents have the legal authority over minors, which means parents can consent to an employer running a background check on minors, which would be legally binding. Therefore, employers should seek parental consent before running a background check—criminal or credit—on a minor.
It should also be noted that a background check on a minor will not reveal the same kind of information as it would for an adult. Quite a few minors do not have a credit history before they are 18 because they cannot enter into a binding agreement (i.e., credit card agreement) without parental consent. Further, most states seal juvenile records unless the minor was charged as an adult, making it nearly impossible for employers to receive juvenile history for minors. Moreover, juvenile court records most often are not available to the public.
Although drug tests are not generally considered to be medical examinations, and therefore do not require consent to test, a minor candidate who tests positive may not understand that they have the right to offer medical information, in confidence, to a medical review officer that may explain or excuse a positive test result before it is reported to the employer. For this reason, employers may choose to notify or even seek parental consent to testing. Alone among the jurisdictions that regulate employee drug testing by statute, only Iowa has a provision specifically addressing the drug testing of minors, and the law requires that the parents of the minor employee be provided with a copy of the employer’s testing policy.
As this lengthy response to your question indicates, Finally Ready to Hire, you’ll need to do your homework before hiring youth workers. While many Help Wanted ads are encouraging younger teens to apply, there are heightened responsibilities that accompany employing minors. Potential short-term benefits must be weighed against potential liability and additional hiring obligations. Before taking on minor employees, employers should consult with knowledgeable employment law counsel to determine whether and how minors may be successfully incorporated into their workforce while ensuring compliance.
1 29 U.S.C. § 203.
2 29 U.S.C. §§ 570.51 - 570.68.
3 29 C.F.R. § 570.62.
4 Colo. Rev. Stat. § 8-12-109.
5 29 C.F.R. § 570.52.
6 29 C.F.R. § 570.33
7 See 29 C.F.R §§ 570.36, 570.37.
8 29 C.F.R. § 570.34.
9 29 C.F.R. § 570.35.
10 The DOL previously utilized a rigid six-factor test to determine whether the individual is an intern or an employee. For a more detailed discussion regarding the DOL’s adoption of the primary beneficiary test, see Barbara Gross, DOL Updates Guidance on Unpaid Interns, Embracing Circuit Courts’ Approach, Littler Insight (Jan. 22, 2018).
11 The DOL, with its announcement of its adoption of the primary beneficiary test, also issued a new fact sheet titled, “Fact Sheet #71: Internship Programs Under The Fair Labor Standards Act”. The fact sheet reiterated the issues articled by the DOL in its Field Assistance Bulletin No. 2018-2.
It should be noted that in some federal circuits, e.g., the U.S. Court of Appeals for the Tenth Circuit, courts apply the old “six-factor” test to determine whether an intern is an employee under the FLSA. See Nesbitt v. FCNH, Inc., 908 F.3d 643 (10th Cir. 2018). We recommend you consult with counsel to determine the proper test utilized in your respective jurisdiction prior to making any determinations as to interns’ statuses.
12 8 U.S.C. § 1324a.
13 29 C.F.R. § 570.5.
14 Alabama; Arkansas; California; Colorado; Connecticut; Delaware; District of Columbia; Florida; Georgia; Hawaii; Illinois; Indiana; Iowa; Kentucky; Louisiana; Maine; Maryland; Massachusetts; Michigan; Minnesota; Missouri; Montana; Nebraska; Nevada; New Hampshire; New Jersey; New Mexico; New York; North Carolina; North Dakota; Ohio; Oklahoma; Oregon, Pennsylvania; Puerto Rico; Rhode Island; South Dakota; Tennessee; Vermont; Virginia; West Virginia; Wisconsin; and Wyoming. 29 C.F.R. § 570.9.
15 29 U.S.C. § 570.7.