A little-noticed part of the recently-enacted federal Genetic Information Nondiscrimination Act (GINA) has substantially increased the potential monetary exposure for employers who violate the federal Fair Labor Standards Act's child-labor restrictions. These changes took effect when President Bush signed the law on May 21, 2008.
Employers now face an especially-stringent penalty for an FLSA child-labor violation that causes the death or serious injury of an employee under 18 years old. "Serious injury" means the permanent loss or substantial impairment of one of the senses, of either a bodily member or an organ, or of a person's mental abilities. The phrase also includes permanent paralysis or another substantial impairment causing a loss in the movement or mobility of a body part.
Big Penalties Possible
The U.S. Labor Department can now impose a civil penalty of up to $50,000 for each such violation. Moreover, if the employer's violation is found to have been "repeated" or "willful," this sum can be doubled to $100,000. While it remains to be seen how DOL and the courts interpret this new provision, it is entirely possible (perhaps even likely) that an employer will be hit with a doubled fine for a second, "serious injury" infraction even though the employer's first violation occurred years ago and did not result in an injury.
Another area of uncertainty is how broadly DOL will reach in determining that a violation caused a minor's death or serious injury. This should be easy to decide if the violation grew out of the minor's having performed prohibited duties, but the child-labor restrictions are broader than that.
For example, FLSA regulations do not allow the employment of most 14- and 15-year-olds for more than 18 hours during a week when school is in session. If a 14-year-old is seriously injured while performing work in her 21st hour during a school week, did this violation cause the injury because she was tired? It is possible that the DOL would take just such a position in some circumstances.
Will GINA Lead to Stepped-up Enforcement Elsewhere?
It might also be that this new authority will move DOL to step-up its enforcement activity generally. DOL officials have always viewed child-labor restrictions as a high-priority responsibility. During the 1990s, for instance, DOL undertook initiatives collectively called "Operation Child Watch" that involved nationwide "sweeps" resulting in millions of dollars in assessments.
From 2006 to 2007, DOL stepped-up random or "self-directed" investigations by almost 35%. Over that same period, it increased the percentage of investigator time devoted to child-labor investigations by more than 13%. The publicity and awareness generated by GINA's amendments could result in DOL's devoting an even-greater level of enforcement resources to child-labor matters.
DOL's recent experience has been that a high number of child-labor violations fall into the categories of requiring or permitting minors under 16 to work too early in the day, too late in the day, or more hours than regulations allow. Other frequent violations involve driving vehicles or operating paper-balers or box-compactors. Employers can therefore anticipate that DOL will continue to look for instances in which minors are unlawfully employed in connection with these restrictions.
The FLSA's limitations are applied very strictly, and there is little room for error. For instance, it is generally not a defense to say that a minor misrepresented his or her age, or that a minor was told not to engage in a prohibited activity but did so anyway. In other words, this is an area in which "close enough" is almost always not good enough.
Our Advice
You should immediately ensure that you are in compliance with the FLSA's child-labor requirements. This should include identifying all employees who are under 18 years old, verifying their ages with official age certificates, and reviewing their exact job duties. Where employees between 14 and 16 years old are concerned, find out their number of hours worked and their times of day worked. It is highly unlikely that a non-agricultural employer could lawfully employ an individual under the age of 14.
Finally, be sure to follow state and local requirements and limitations. Many jurisdictions have even-greater restrictions upon the employment of minors and provide for more-stringent penalties for any violations.
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.
