Docstoc
Human Resources

Can I Hire an Employee Under the Age of 18?

For many of us, having a summer job as a teenager was a rite of passage that taught important life lessons and the value of earning money. Many employers are happy to continue the tradition of giving teens their first jobs, but some employers overlook crucial legal requirements, many times in the interest of expediency or to reduce costs. 

For those thinking about hiring someone under the age of 18, their business must comply with the Fair Labor Standards Act (FLSA). Its rules cover a great deal regarding child employment, regulating everything from the length of a workday to a child’s wage. Accusations of noncompliance are handled by the Wage and Hour Division of the U.S. Department of Labor and can result in thousands of dollars in fines or even jail time

Employing a minor is entirely feasible, but there’s a lot to keep in mind when doing so. Here are the most relevant points to remember. 

Age and Job-Type Restrictions

There are some jobs that a minor of any age can do. The FLSA allows minors of any age to:

  • Deliver newspapers
  • Perform in radio, television, movie or theatrical productions
  • Babysit
  • Do minor chores around a private home
  • Work for their parents (in non-hazardous jobs)

For every other job, the FLSA generally divides child workers into two groups: non-agricultural and agricultural jobs.

For non-agricultural jobs, the statute’s minimum age of employment is 14, but the type of work a minor can do will vary according to age. For instance, workers between 14 and 15 years of age can find work in the following fields:

  • Intellectual or creative work, such as computer programming, teaching, tutoring, singing, acting or playing an instrument
  • Errands or delivery work by foot, bicycle and public transportation
  • Clean-up and yard work that does not include using power-driven mowers, cutters, trimmers, hedgers or similar equipment
  • Work in connection with cars and trucks, such as dispensing gasoline or oil and washing or hand polishing
  • Some kitchen and food service work, including reheating food, washing dishes, cleaning equipment and limited cooking
  • Cleaning vegetables and fruits, wrapping, sealing and labeling, weighing, pricing and stocking of items when performed in areas separate from a freezer or meat cooler
  • Loading or unloading objects for use at a worksite, including rakes, handheld clippers and shovels
  • 15-year-olds who meet certain requirements can perform lifeguard duties at traditional swimming pools and water/amusement parks.

When workers are between 16 and 17, they are free to work in any job that is not deemed hazardous. The list of hazardous jobs, including their legal definitions and exemptions, is quite expansive, and we encourage you to read it yourself. Some are obvious, such as coal mining or participating in the manufacture or storage of explosives, but some aren’t so obvious. These include: 

  • Driving a vehicle
  • Using power-driven woodworking machines
  • Slaughtering, processing, packing or rendering meat
  • Using power-driven meat-processing machines
  • Doing roofing work
  • Digging trenches or other excavations

For agricultural jobs, the FLSA allows workers as young as 12 to work on farms exempt from federal minimum-wage provisions with a parent or legal guardian’s permission. Restrictions on parent permission and working on a minimum-wage-exempt farm expire at 14 for any non-hazardous agricultural job, and all restrictions are lifted for agricultural minor workers age 16 or older. 

For both groups, the FLSA also requires you to keep records of the birthdates, work hours and occupations for all employees under the age of 19. This requirement is very important, as it can protect you from possible claims of violations in the future. Some states issue employment or age certificates to maintain recordkeeping transparency when hiring a minor. Some states require them, and you can check here to see if your state does. 

Workable Hours Restrictions 

Just because you can hire a minor doesn’t mean you can work them around the clock. The FLSA addresses the number of workable hours you can assign a minor employee and, like its job-type restrictions, bases much of its guidelines on age.

The amount of hours a minor can work is based around a child’s assumed normal schedule. This accounts for five 8-hour schooldays and free weekends, with restrictions varying from years 14 to 17 for non-agricultural jobs and 12 to 16 for agricultural jobs. 

For instance, regulations limit the hours and times of day that children aged 14 and 15 can work in a non-agricultural job. They must be:

  • Outside of normal school hours
  • No more than three hours on a school day, including Fridays
  • No more than 18 hours during a school week
  • Only between 7 a.m. and 7 p.m. (and only until 9 p.m. between June 1 and Labor Day)

For non-agricultural jobs, you are strongly encouraged to check this list for age and hour restrictions. Agricultural jobs may be worked at any time outside of school hours.

Jobs that are part of the Work Experience and Career Exploration Program that employ minors under 16 can work up to 23 hours during school weeks, but they require certification by the Department of Labor.

Wages 

The FLSA requires employers to pay whichever is the higher amount between the federal youth minimum wage ($4.25 an hour) and the prevailing state youth minimum wage. In 1996, the FLSA changed regulations to allow employers to pay workers under 20 years old $4.25 an hour during their first 90 consecutive calendar days (not workdays, calendar days) of employment. Keep track of those birthdays, because if your employee turns 20 during the 90-day period, you must raise his or her pay to at least your jurisdiction's applicable minimum wage. 

Another important note on that 90-day period: If you hire a minor on January 1, and he or she quits in the middle of February, that 90-day period continues until March 30. If the employee later returns to work for you after the 90-day period has expired, then you can no longer pay them the youth minimum wage and must pay them at least your jurisdiction’s applicable minimum wage. 

While lower wages can really help your bottom line, know that it's illegal to fire one of your older workers so that you can replace him or her with someone earning subminimum wage. It's also illegal to fire a worker after 90 days solely so that you can replace him or her with a new worker  at the subminimum wage.

State Law vs. Federal Law

The FLSA isn't the only set of rules you have to follow when it comes to hiring minors. Some states, for example, allow minors to work until 10 p.m. in the summertime, even though the federal law only permits working until 9 p.m. Permitted jobs also vary by state. 

In Colorado, for example, 9-year-olds are allowed to hold jobs as shoe shiners, gardeners and lawn-care providers, sidewalk sweepers and golf caddies, although they’re still barred from using power-driven equipment until age 12. Twelve-year-olds are also allowed to sell magazines, conduct door-to-door sales and use snow blowers and other power-driven snow-removal equipment to clear walks. Other states prohibit youths from doing door-to-door sales (see the list here).

Many states also require you to obtain proof-of-age certificates for employees you hire. This demonstrates a good-faith effort on your part, which can provide some protection against later violation claims. Other states, however, don't have this requirement. In Oregon, the employer also has to apply for an annual certificate to employ minors. The state's Child Labor Unit reviews the application and sends a certificate to the employer, which must display it in a conspicuous place. 

Penalties 

Every willful violation of child-labor provisions can cost you up to $10,000 in penalties and opens up potential criminal prosecution. This is in addition to a civil penalty of up to an additional $10,000 for each underage employee that was a subject of the violation. A penalty of $50,000 can be levied if the violation causes death or serious injury of an employed minor. If it is revealed that you willfully violated the law, these penalties can double. That's why it's important to know your state's labor laws. Visit your state's Department of Labor website for more information. 

In addition to federal law, states have passed their own laws that may impose additional penalties for violations. You can also get an idea of what your state requires here and here. 

Where to Go for Help

If you still have questions, take the time to find qualified human resources advice from employment attorneys or HR consultants. Visit the American Bar Association website or the bar association in your state to find an employment attorney. You can also check out our advice on finding a good consultant.

 
;