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- Employment Law Guide A Companion to the FirstStep Employment Law Advisor |
Wages and Hours Worked: Child Labor Protections (Nonagricultural Work)
Updated: September 2009
Fair
Labor Standards Act of 1938 (FLSA), as amended (PDF)(http://www.dol.gov/whd/regs/statutes/FairLaborStandAct.pdf) Who is CoveredThe child labor provisions of the Fair Labor Standards Act (FLSA) are administered by the Wage and Hour Division (WHD). These provisions are designed to protect the educational opportunities of minors and to prohibit their employment in jobs and under conditions detrimental to their health and well‑being. In nonagricultural work, the child labor provisions apply to enterprises with employees engaging in interstate commerce, producing goods for interstate commerce, or handling, selling, or working on goods or materials that have been moved in or produced for interstate commerce. For most firms, an annual dollar volume of business test of not less than $500,000 applies. Employees of firms that do not meet the $500,000 annual dollar volume test may be subject to the FLSA’s child labor provisions in any workweek in which they are individually engaged in interstate commerce, the production of goods for interstate commerce, or an activity that is closely related and directly essential to the production of such goods. The Act covers the following employers regardless of their dollar volume of business: hospitals; institutions primarily engaged in the care of the sick, aged, mentally ill, or disabled who reside on the premises; schools for children who are mentally or physically disabled, or gifted; preschools, elementary and secondary schools, and institutions of higher education; and federal, state, and local government agencies. While 16 is the minimum age for most nonfarm work, minors aged 14 and 15 may work outside of school hours in certain occupations under certain conditions. Minors may, at any age: deliver newspapers; perform in radio, television, movies, or theatrical productions; work for their parents in their solely owned nonfarm businesses (except in mining, manufacturing, or in any other occupation declared hazardous by the Secretary); or gather evergreens and make evergreen wreaths. Basic Provisions/RequirementsThe child labor provisions of the Act include restrictions on hours of work and occupations for youths under age 16. These provisions also set forth 17 hazardous occupations orders for jobs that the Secretary has declared too dangerous for those under age 18 to perform. The permissible jobs and hours of work, by age, in nonfarm work are as follows:
Detailed information on the occupations determined to be hazardous by the Secretary is available from a local Wage and Hour Division office(http://www.dol.gov/whd/america2.htm) and in 29 CFR Part 570(http://www.dol.gov/dol/cfr/Title_29/). By regulation, employers must keep records of the dates of birth of employees under age 19, their daily starting and quitting times, their daily and weekly hours of work, and their occupations. Employers may protect themselves from unintentional violation of the child labor provisions by keeping on file an officially-issued employment or age certificate for each young worker to show that the minor has the minimum age for the job. Age or employment certificates issued under most state laws are generally acceptable for this purpose. See 29 CFR 570.5(http://www.dol.gov/cgi-bin/leave-dol.asp?exiturl=http://s.dol.gov/87&exitTitle=www.gpoaccess.gov&fedpage=yes). Employee RightsThe FLSA also gives an employee the right to file a complaint with the Wage and Hour Division and testify or in other ways cooperate with an investigation or legal proceeding without being fired or discriminated against in any other manner. Recordkeeping, Reporting, Notices and PostersNotices and PostersEvery employer of employees subject to the FLSA’s minimum wage provisions must post, and keep posted, a notice(http://www.dol.gov/whd/regs/compliance/posters/flsa.htm) explaining the Act in a conspicuous place in all of their establishments. Although there is no size requirement for the poster, employees must be able to readily read it. The FLSA poster is also available in Spanish(http://www.dol.gov/whd/regs/compliance/posters/flsaspan.htm), Chinese(http://www.dol.gov/whd/regs/compliance/posters/minwagecn.pdf), Russian(http://www.dol.gov/whd/regs/compliance/posters/FLSAPosterRuss.pdf), Thai,(http://www.dol.gov/whd/regs/compliance/posters/MinWageThai.pdf) Hmong,(http://www.dol.gov/whd/regs/compliance/posters/MinWageHmong.pdf) Vietnamese(http://www.dol.gov/whd/regs/compliance/posters/minwageViet.pdf), and Korean(http://www.dol.gov/whd/regs/compliance/posters/minwageKorean.pdf). There is no requirement to post the poster in languages other than English(http://www.dol.gov/whd/regs/compliance/posters/flsa.htm). Covered employers are required to post the general Fair Labor Standards Act poster; however, certain industries have posters designed specifically for them. Employers of Agricultural Employees (PDF)(http://www.dol.gov/whd/regs/compliance/posters/wh1386Agrcltr.pdf) and State & Local Government Employees (PDF)(http://www.dol.gov/whd/regs/compliance/posters/wh1385State.pdf) can either post the general Fair Labor Standards Act poster(http://www.dol.gov/whd/regs/compliance/posters/flsa.htm) or their specific industry poster. There are also posters for American Samoa (PDF)(http://www.dol.gov/whd/minwage/americanSamoa/ASminwagePoster.pdf) and Northern Mariana Islands (PDF)(http://www.dol.gov/whd/regs/compliance/posters/cnmi.pdf). Every employer who employs workers with disabilities under special minimum wage certificates is also required to post the Employee Rights for Workers with Disabilities/Special Minimum Wage Poster(http://www.dol.gov/whd/regs/compliance/posters/disab.htm). RecordkeepingEvery employer covered by the Fair Labor Standards Act (FLSA) must keep certain records for each covered(http://www.dol.gov/elaws/esa/flsa/overtime/glossary.htm?wd=covered), nonexempt(http://www.dol.gov/elaws/esa/flsa/overtime/glossary.htm?wd=non_exempt) worker. There is no required form for the records. However, the records must include accurate information about the employee and data about the hours worked and the wages earned. The following is a listing of the basic payroll records that an employer must maintain:
For a full listing of the basic records that an employer must maintain, see the Wage and Hour Division Fact Sheet #21: Recordkeeping Requirements under the FLSA(http://www.dol.gov/whd/regs/compliance/whdfs21.pdf). Employers are required to preserve for at least three years payroll records, collective bargaining agreements, and sales and purchase records. Records on which wage computations are based should be retained for two years. These include time cards and piecework tickets, wage rate tables, work and time schedules, and records of additions to or deductions from wages. ReportingThe FLSA does not contain any specific reporting requirements; however, the above referenced records must be open for inspection by the Wage and Hour Division's representatives, who may ask the employer to make extensions, computations, or transcriptions. The records may be kept at the place of employment or in a central records office. Penalties/SanctionsThe “hot goods” provisions of the Act prohibit the interstate shipment of goods produced in violation of the child labor provisions. It is also a violation of the Act to fire or in any other manner discriminate against an employee for filing a complaint or for participating in a legal proceeding under the Act. Employers are subject to a civil money penalty of up to $11,000 per worker for each violation of the child labor provisions. In addition, employers are subject to a civil money penalty of $50,000 for each violation occurring after May 21, 2008 that causes the death or serious injury of any minor employee – such penalty may be doubled, up to $100,000, when the violations are determined to be willful or repeated. When a civil money penalty is assessed, employers have the right to file an exception to the determination within 15 days of receipt of the notice of such penalty. When an exception is filed, it is referred to an Administrative Law Judge for a hearing and determination as to whether the penalty is appropriate. Either party may appeal the decision of the Administrative Law Judge to the Secretary of Labor. If an exception is not filed within the 15 days, the penalty becomes final. The Act also provides for a criminal fine of up to $10,000 upon conviction for a willful violation. For a second conviction for a willful violation, the Act provides for a fine of not more than $10,000 and imprisonment for up to six months, or both. The Secretary may also bring suit to obtain injunctions to restrain persons from violating the Act. Relation to State, Local, and Other Federal LawsMany states have child labor laws. When both this Act and a state law apply, the law setting the higher standards must be observed. Compliance Assistance AvailableThe Department of Labor provides employers, workers, and others with clear and easy-to-access information and assistance on how to comply with the FLSA. Among the many resources available are:
Additional compliance assistance, including explanatory brochures, fact sheets, and regulatory and interpretive materials, is available on the Compliance Assistance “By Law”(http://www.dol.gov/compliance/laws/comp-flsa.htm) Web page and the Wage and Hour Division Home Page(http://www.dol.gov/whd). DOL ContactsWage and Hour Division(http://www.dol.gov/whd/)
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