Department of Labor Publishes Final Rule on Nonagricultural Child Labor

On May 20, 2010, the United States Department of Labor Wage and Hour Division published a Final Rule updating regulations relating to nonagricultural child labor under the Fair Labor Standards Act (FLSA). The purpose of the Final Rule, found at 29 C.F.R. Parts 570 and 579, is to continue to foster permissible and appropriate job opportunities for working youth that are healthy, safe and not detrimental to their education. The Final Rule incorporates the 2008 amendment to Section 16(e) of the FLSA that substantially increased the civil penalty an employer may be assessed for child labor violations that cause death or serious injury of a young worker. Additionally, the Final Rule details and clarifies prohibited and permitted jobs for all nonagricultural workers under 18 and clarifies hour requirements for 14- and 15-year olds.

Changes Regarding Permitted Work for All Workers Under 18-Years Old

The Final Rule strengthens child labor law to protect all nonagricultural minor workers against workplace hazards. The Final Rule adds prohibitions regarding the following established Hazardous Occupation Orders (HO):

• Logging and Sawmilling (HO 4): expands prohibition to include most work in forest fire fighting, forestry services, and timber tract management.
• Power-Driven Hoisting Equipment (HO 7): expands types of prohibited hoist equipment, expands definitions of various types of equipment, and removes previous exception allowing minors to operate certain hoists of less than one ton capacity.
• Meat Processing and Power-Driven Meat Processing Plants (HO 10): expands prohibition to include poultry slaughtering, as well as work in establishments that manufacture or process meat or poultry products; also clarifies that youth may not clean power-driven meat processing equipment, even if an adult assembles and dissembles the equipment.
• Balers and Compactors, and Paper Processing Machines (HO 12): expands prohibition to include the operation and loading of all balers and compactors, including those not designed or used to process paper.
• Band Saws, Circular Saws, and Guillotine Shears (HO 14): expands prohibition to include chain saws, reciprocating saws, wood chippers, and abrasive cutting discs. The prohibitions of this HO apply regardless of the material being processed by the prohibited equipment.

The Final Rule also amends HO 11, Power-Driven Bakery Equipment, to allow minors to operate portable countertop mixers that are like those found in the home and to operate certain pizza-dough rollers under specific conditions.

Changes Regarding Permitted Work for 14- and 15-Year Olds

In addition to the HO prohibitions that apply to all minor workers, the Final Rule makes it clear that 14- and 15-year olds may only work in those jobs that the Secretary of Labor allows, i.e., "Employment that is not specifically permitted is prohibited." Accordingly, the Final Rule clarifies, details, and expands both prohibited and permitted jobs for 14- and 15-year olds.

• Safe, Allowable Tasks: The Final Rule expands the number and types of tasks that 14- and 15-year olds are permitted to perform. This expansion builds on the former regulations that allowed them to work in food service, retail, and gasoline service establishments. Permitted activities now include: office work; work of an intellectually or artistically creative nature; most restaurant tasks; most retail tasks, including cashiering, stock work, and clean-up work; errand and delivery work by foot, bicycle, or public transportation; work in such fields as advertising, teaching, banking and information technology; most gasoline service station tasks; and, under certain conditions, work inside and outside of places that use power-driven machinery to process wood products. Additionally, 15-year olds (but not 14-year olds) may work as lifeguards at traditional swimming pools and water parks, as defined by the Final Rule.
• Newly Prohibited Tasks: The Final Rule also adds or makes explicit prohibitions on 14- and 15-years old performing the following tasks: door-to-door sales, or peddling (with an exception for doing so on behalf of charitable organization or public agencies); poultry catching and cooping; and promotional activity like sign waving, unless performed directly outside the employer's establishment.
• Clarifications: Some provisions relating to employment tasks are clarified, including: when youth may ride inside and outside of passenger compartments of motor vehicles; the types of materials and situations in which youth may load and unload motor vehicles; and provisions regarding meat coolers and freezers.

Changes Regarding Hours of Work Permitted for 14- and 15-year Olds

The Final Rule also clarifies regulations relating to hours of work permitted for 14- and 15-year olds. First, it clarifies that the 3-hour limit on employment on school days includes Fridays. Second, the prohibition on working during "school hours" is clarified as being "determined by the local public school district" where the minor resides, regardless of whether the student attends public school. Third, the Final Rule requires employers to use the same "week" (the 168 hour period that is used for computing whether employees are due overtime) to determine compliance with the child labor laws.

Additionally, the Final Rule creates a work-study program for 14- and 15-year old students in college preparatory curricula, recognizing that various work-study programs are already in place throughout the country. The new work-study program must meet specific requirements set out in the Final Rule, but it allows 14- and 15-year old students to work during school hours, whereas child labor regulations otherwise prohibit working during school hours.

Recommendations

Employers that engage young workers in nonagricultural occupations have until July 19, 2010, to come into compliance with the new regulations. In doing so, they should consider the following recommendations:

• Examine current workforce demographics to determine which workers, if any, are either 14-15 years old, or 16-17 years old, as of July 19, 2010.
• Determine whether minor employees are working in any areas covered by HOs, especially those amended by the Final Rule. If so, those employees must cease working in that capacity before July 19, 2010.
• Ensure that 14- and 15-year old employees are working only in specifically permitted jobs, and are in compliance with the permitted hour regulations, paying particular attention to work on Fridays and during school hours, as determined by the local public schools.
• Consult the Final Rule, available on the Department of Labor Wage Hour Division website, for additional details not included in this summary.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.