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Child Labor Laws: Are You in Compliance?
As the summer months come upon us, dealers may find themselves in the position of hiring minors. While it is legal to hire some minors, there are limitations on their employment of which dealers must be aware to avoid problems. The states of Ohio and Michigan as well as the Federal government regulate the employment of minors. The Fair Labor Standards Act (FLSA), and its state equivalents, extend protection to children by prohibiting the employment of "oppressive child labor" in commerce, in the production of goods for commerce, and in the activities of any covered enterprise.
A "child" is anyone under the age of 18. With rare exceptions, the employment of any person under the age of 14 is prohibited. In general, the law regulates the hours of work and tasks performed. In each case, the law applies a different standard depending upon the child's age.
A. Hours of Work
i. Ohio.
There is no limit on hours worked by persons over 16 years of age, however, employment of persons between 14 and 16 years of age is confined to:
- Outside school hours;
- Not more than 40 hours in any week when school is not in session or more than 18 hours in any week when school is in session;
- Not more than 8 hours on any day when school is not in session or more than 3 hours in any day when school is in session;
- Not between 7PM and 7AM in any one day, except during the summer (June 1 through Labor Day) when the evening hour will be 9PM.
Employment of persons 16 or 17 years of age is prohibited under Ohio law:
- Before 7AM on any day that school is in session, except such person may be employed after 6AM if the person was not employed after 8 PM the previous night; and
- After 11PM on any night preceding a day that school is in session.
ii. Michigan
Minors above age 16 may not work:
- more than 10 hours per day;
- 48 hours or 6 days per week;
- or for a period longer than weekly average of 8-hour day, 48-hour week; or
- between 10:30pm and 6:00am, except during school vacation periods when minors age 16 may work until 11:30pm.
Minors below age 16 may not work:
- between 9:00pm and 7:00am;
- more than 10 hours per day;
- 48 hours or 6 days per week; or
- for period longer than weekly average of 8-hour day, 48-hour week; or
- after sunset or 8:00pm in occupation involving cash transaction at fixed location unless employer or other employee age 18 or older is present.
Under Ohio and Michigan law, all minors working more than five consecutive hours must be allowed a 30-minute rest period.
B. Type of Work Permitted.
The FLSA and its companion Ohio and Michigan regulations specifically contain strict prohibitions against the employment of any individual under the age of 18 in "hazardous occupations."
In Ohio, the following activities, though not an exclusive list, are deemed to be hazardous within the meaning of this prohibition:
- Motor vehicle drivers and helpers;
- Occupations in the operation of power driven metal forming, punching and shearing machines;
- Occupation in the operation of circular saws, band saws and guillotine shears; and
- Wrecking, demolition, ship breaking operations.
In Michigan, minors under age 18 may not work in hazardous occupation including:
- Construction or demolition;
- Occupations requiring the use of respiratory equipment;
- Any aspect of the tanning process;
- Slaughtering and meatpacking;
- Manufacturing of explosive materials, including ammunition exceeding .60 caliber in size; and
- Operation of heavy power-driven machinery.
In Michigan, work permits will not be issued to minors under the age of 16 for employment in:
- Construction, including repair or clean-up of construction site;
- Welding, and
- Any occupation requiring use of ladders or scaffolding.
The FLSA was amended in 1998 to permit minor employees who are age 17 to drive automobiles or trucks on public roadways if:
- The driving occurs in daylight hours;
- The 17-year old employee holds a valid driver's license for the state and has no records of any moving violations at the time of hire;
- The 17-year old employee has successfully completed a state-approved driver's education course;
- The vehicle has seat belts and the 17-year old employee has instructed on its use;
- The gross weight of the vehicle does not exceed 6000 pounds;
- The driving is only occasional and incidental to the 17-year old employee's employment (i.e., does not constitute more than 1/3 of the employee's worktime in any workday and no more than 20% of the employee's worktime in any workweek); and
- The driving does not involve:
- Towing of vehicles;
- Route deliveries or route sales;
- The transportation for hire of property, goods or passengers;
- Urgent, time-sensitive deliveries;
- More than two trips away from the primary place of employment for the purpose of delivering goods of the 17-year old employee's employer to a customer (other than urgent, time-sensitive deliveries);
- More than two trips away from the primary place of employment in a single day for the purpose of transporting passengers (other than employees of the employer);
- Transporting more than three passengers (including employees of the employer); or
- Driving beyond a thirty-mile radius from the 17-year old employee's place of employment.
It would be unlawful to employ a minor under the age of 17 as a porter who is involved in driving vehicles over public roads for such reasons as moving the vehicle between stores, dropping off customers at work, or delivering a vehicle to a customer's residence after a service call.
Ultimately, dealers and owners considering the employment of a minor want to know what kind of work a minor can perform. Minors between the ages of 14 and 16 can perform non-hazardous work in retail and gasoline service establishments that involve:
- Office and clerical work including selling and cashiering;
- Working a counter and picking and packing order (as long as it does not involve the use of a power driven machinery);
- Performing clean-up and maintenance work both inside and outside the store (as long as it does not involve the use of power driven mowers and cutters. The use of vacuum cleaners and floor polisher is allowed);
- Car washing, cleaning, and polishing; and
- Dispensing gasoline and oil (as long as it does not involve the use of lift, pits, racks, or other similar apparatus).
Minors aged 16 to 18 may perform all of the tasks already listed. In addition, they can, if specific conditions are met, drive a vehicle on the grounds of the store. The conditions which must be met are:
- The gross weight of the vehicle cannot exceed 6,000 pounds;
- The driving must occur in daylight hours;
- The child holds a valid driver's license for the state;
- The operation of the vehicle is occasional and incidental to the child's employment;
- The vehicle has seat belts and the child has been instructed on their use; and
- The driving does not include towing.
There are also situations where dealers may employ minors under conditions where the hazardous condition prohibition may be relaxed. This can occur where the minor is age 16 to 18 and is considered to be a student-learner or an apprentice.
The most common situation would occur where the minor is enrolled in an automotive technology or related vocational program under a state or local educational authority. In addition, employment must be under a written agreement specifying that:
- The work performed that is considered to be hazardous is incidental to the training;
- The work will be incidental to the training and for a short period of time and will be closely supervised by an experienced and qualified individual;
- Safety instructions will be given by the school and reinforced by the employer through on-the-job experience; and
- A schedule of progressive work experiences will be prepared.
The agreement must contain the name(s) of the student(s) and be signed by both the employer and the school principal or coordinator. Both the school and the employer must keep copies of the agreement.
C. Proof of Age and Work Permits.
i. Ohio
Employers are required to have on file an age and schooling certificate prior to employing a minor. If a minor, age 16 or 17, is employed or trained during the summer months when school is not in session, the minor must provide the dealership with evidence of proof of age and a statement signed by the minor's parent or guardian consenting to the proposed employment.
ii. Michigan
Employers must keep work permit on file for all minor employees.
Although the FLSA does not require an employer to obtain a certificate of age upon employment of a minor, such a practice does provide substantial insulation from unwitting child labor law violations. Thus, the act preludes a finding that "oppressive child labor" has been employed where the employer has on file an unexpired certificate showing that the minor is above the age required for employment in occupation held.
The information contained in this article is not a substitute for legal advice. Individual questions should be directed to an employment law attorney.
© 2000 by Millisor & Nobil Co., LPA
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