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Child labor: new and old

Oklahoma Employment Law Letter - October 2010

By Josh Solberg

On July 19, the U.S. Department of Labor's (DOL) Wage and Hour Division published a final rule that affects the employment of youth - most significantly, the employment of youth ages 14 and 15 in nonagricultural labor. The final rule contains "the most ambitious and far-reaching revisions to the child labor regulations in the last thirty years and marks another step forward in the DOL's ongoing effort to promote positive, safe work experiences for young workers." The rule's primary impact is on the additional opportunities for employers to us 14- and 15-year-olds in their workforce as well as the imposition of heightened penalties for violations of the rule.

Oklahoma, like other states, has implemented additional laws affecting the employment of youth. This article will address the highlights of the new final rule and offer a reminder of some of the relevant Oklahoma child labor laws.

 
Background of federal child labor laws                                                     

The Fair Labor Standards Act (FLSA) doesn't prohibit all forms of child employment. Instead, it prohibits only "oppresive child labor." In defining "oppressive child labor," the FLSA divides its child labor regulations both by age and by the type of employment at issue. The regulations establish a minimum age of 16 years old for employment in nonagricultural occupations, unless the secretary of labor provides by explicit regulation for 14- and 15-year-olds to work in certain occupations and under certain conditions.

Generally, they are three age divisions created by the FLSA for child labor: children ages 16 and older, children ages 14 and 15, and children younger than 14. The new final rule has the greatest impact on the regulations for 14- and 15-year-olds.

Previously, children ages 14 and 15 could be employed so long as the secretary of labor had not declared the work hazardous and the employer complied with certain time restrictions. The new final rule is stated conversely, providing that children ages 14 and 15 may work only in industries that the secretary of labor has declared appropriate - i.e., "if a task is not specifically permitted, it is prohibited."

 
Expanded workplace

The final rule, however, actually expands potential employment opportunities for children ages 14 and 15 because the formal regulations permitted them to work only in limited environment - basically, foodservice, retail, and gasoline service establishments. The final rule also declares safe the following industries for 14- and 15-year- olds: advertising, banking (based on recent history, this may actually improve the quality of the banking industry), and information technology (because kids are better at this than adults). These young workers are now permitted to perform work of an "intellectual or artistic nature," which would include computer programming, drawing and teaching.

Additionally, 14- and 15-year-olds may be employed inside and outside places of business that use power-driven machinery to process wood products under specific conditions, and 15-year-olds may work as lifeguards and swimming instructors at swimming pools and water amusement parks if they're properly trained and certified. The final rule also creates a work-study program in which 14- and 15-year-olds may, under limited circumstances, work during school hours.

 
Additional

The final rule also contains several new restrictions on your ability to employ individuals under the age of 18:

  • Children can't ride on a forklift as a passenger, operate balers and compactors designed or used for nonpaper products, or operate power-driven chain saws, wood chippers, reciprocating saws, and abrasive cutting disks (although Oklahoma kids can still do those things for fun on weekends).
  • They can't tend, ride, work on, or otherwise work with a high-lift truck (such as a backhoe, front-end loader, or skid loader), elevator, crane, derrick, hoist, or man lift (scissor lift, boom-type mobile elevating work platform, work assist vehicle, cherry picker, basket hoist, and bucket truck).
  • The final rule also removes a previous exception that permitted youth to operate certain hoists that have a capacity of less than one ton.
  • The final rule also prohibits peddling and noncharitable door-to-door sales by youth under 16 years of age, but it doesn't prohibit charitable door-to-door sales, such as selling Girl Scout cookies.
  • Additionally, youth can't act as "sign wavers" unless they perform the work directly in front of the employer's establishment.

The final rule also includes clarifications to existing laws, including that the three-hour limit on employment on a school day includes Fridays, "school hours" may vary by youth employee and are considered to be the hours the local public school the minor attends while employed is in session, and a "week" is the same 168-hour period used for determining if employees are owed overtime.

 
Increased penalties for violations

The final rule incorporates the 2008 amendment to Section 16(e) of the FLSA that increased the maximum permissible civil penalties an employer can be assessed for child labor violations when any violation leads to the death or serious injury of a youth worker. In an official statement, the DOL proclaimed that the final rule "give[s] employers clear notice that there are certain jobs children are simply not allowed to perform" - a sign that any violation of the Act will be prosecuted vigorously.

 
Oklahoma child labor laws

Oklahoma law incorporates the FLSA's restrictions on child labor. Therefore, the final rule also is part of Oklahoma's law.

However, Oklahoma law imposes additional restrictions on the employment of youth. For example, there are educational restrictions imposed by Oklahoma law providing that no child under the age of 16 "shall be employed or permitted to work... unless such child is able to read and write, or shall have attended some school during the preceding year for the time that attendance is compulsory under the laws." (Unfortunately, this is a real restriction in some parts of the state).

To enforce that provision, Oklahoma law requires that you obtain an age and schooling certificate from the parent or guardian for a child under the age of 16 before he is permitted to work. You also must keep on file a list of all children under age 16 who are working for you and keep other documentation as required by Oklahoma law. Additionally, you must provide children under the age of 16 a one-hour cumulative rest period for each eight hours worked, and they may not work more than five consecutive hours unless they're given a half-hour cumulative rest period.


Actions to take

Although few Oklahoma employers outside of the fast-food industry employ significant numbers of 14- and 15-year-olds, there are many Oklahoma employers, including small and rurally based employers, that routinely employ some in that age group (depending on the definition used, at least 90 percent and perhaps as much as 97 to 98 percent of all Oklahoma employers are "small"). You should be aware of the new employment restrictions on specific activities, the DOL's intention to step up enforcement of child labor laws, and Oklahoma's additional requirements for employment of 14- and 15-year-olds.