“School’s Out for Summer, School’s out forever” – Alice Cooper

With spring ending, stores opening up, and schools closing down for summer break, now is a good time to review the federal child labor laws before employers start to dust off their “summer help wanted” signs. Before we get started, as a disclaimer, this blog will discuss the federal child labor regulatory scheme, each state has different laws that can enhance protections for children in the workforce. For example, in Massachusetts, they require a work permit for all employees under the age of 18, whereas federal law requires no such thing. If you are looking for state labor law information, please visit the U.S. Department of Labor (“DOL”) website here: https://www.dol.gov/agencies/whd/state.

For the uninitiated, the relevant labor law is the Fair Labor Standards Act (“FLSA”), this act is widely applicable and details the minimum standards for over 140 million workers in the United States each year. It provides the federal minimum wage, the overtime protections, and record keeping requirements for several classes of employees.

The federal minimum wage for youth workers (employees under 20) is $4.25 an hour.  This is called the youth wage. However, it only applies to employees who are within their first 90 days of employment. In other words, 90 days after the first calendar day of work for the employer, the employee must be paid in accordance with the standard FLSA minimum wage ($7.25 an hour) or the state minimum wage, whichever is greater. Additionally, the state minimum wage may not provide for a 90 day temporarily depressed minimum wage, in which case employers would have to pay the state minimum wage regardless of how long the employee has been working. Finally, so that employer’s do not take advantage of this provision, they may not terminate an employee for the purpose of hiring someone and paying them the youth wage. According to DOL, this would violate the anti-displacement provisions.

Beyond the pay provisions, DOL looks at the age of each youth and what hours they are allowed to work. Generally, Sixteen- and Seventeen-year-olds can work for as many hours as they wish, subject to the overtime FLSA provisions, at jobs that are not deemed hazardous by the Secretary of Labor. A list of the hazardous jobs can be found here. For the most part, children aged fourteen and fifteen are permitted to work outside of school hours and between the hours of 7:00 AM and 7:00 PM (except from June 1 to Labor Day where the evening hours are extended to 9:00 PM). Additionally, they cannot work more than 40 hours in a non-school week, or more than 18 hours in a school week. They also may not work more than 8 hours on a non-school day or 3 hours on a school day. However, they may only work jobs that will not interfere with their schooling, health, and wellbeing. An exhaustive list of current positions they may work can be found here at 6.

But there are a few exceptions to these rules. Children aged sixteen and seventeen who are employed by their parents at a non-hazardous job are not covered by the FLSA child labor provisions. Neither are children under the age of sixteen who work in one of the positions listed by the DOL that does not interfere with their schooling, health, and wellbeing. Additionally, child actors/performers and kids that deliver newspapers are also exempted. Finally, there is an exemption for “Homeworkers engaged in the making of wreaths composed principally of natural holly, pin, cedar or other evergreens (including the harvesting of the evergreen).” See Child Labor Bulletin 101, WH1330 Rev 11/16. Admittedly that last one is extremely specific but in the compliance game, specificity is far preferable to ambiguity.

While college aged students aren’t children as defined by the majority of child labor provisions of the FLSA they too are out during the summer looking for jobs. Unfortunately, many of those positions are unpaid “internships”. The FLSA requires that “for-profit” employers pay all of their employees regardless of what they call them. But the test becomes whether an intern is an employee for purposes of the act. DOL and the judicial system use a primary beneficiary test to determine whether or not it is the intern/student, or the employer that is the larger beneficiary of the relationship. If it is determined that the employer is the primary beneficiary, then the student/intern is an employee and deserves to be paid. Courts have considered these factors in answering this question:

·       The extent to which the intern and the employer clearly understand that there is no expectation of compensation. Any promise of compensation, express or implied, suggests that the intern is an employee—and vice versa.

·       The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands-on training provided by educational institutions.

·       The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit.

·       The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar.

·       The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.

·       The extent to which the intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern.

·       The extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.

See Wage and Hour Division, Internship Programs Under the Fair Labor Standards Act, Fact Sheet # 71. Unpaid internships can be beneficial for both parties. As hard as it is to justify any type of unpaid labor, in many scenarios the student/intern learns valuable skills that will translate into a paid opportunity a little further down the road. But employers must be careful to make sure that they are not taking advantage of the unpaid labor and taking the primary benefit of the relationship.

As the number of teenagers looking to find jobs will certainly increase, and the number of seasonal positions open as the tourist season and weather continues to improve, it is important for employers to make sure they are not taking advantage of their young employees just to save a couple of bucks. It is almost never worth it in the long run.