DOL “Summertime Blues”: Texas Penalties Highlight Summer Child Labor Woes

School’s out and thousands of Texas teens are busy working their summer jobs. Think back to your first summer job – how old were you?  Were you working in food service?  Maybe as a lifeguard?  Whatever your job was, you were probably not considering whether your employment was FLSA-compliant.

The Fair Labor Standards Act permits summer employment for most teenagers, 14 and up – however, there are significant limitations, as several Texas companies operating the “Hawaiian Falls” waterparks recently learned.

FLSA Child Labor – Basics.

Hawaiian Falls was assessed over $85,000 in civil penalties for violating the FLSA’s child labor provisions, both in hours-based violations and hazardous work violations.   The penalties highlight that there are two ways to run afoul of the FLSA with child labor – (1) working too many hours and (2) performing prohibited tasks.

For work performed by minors under the FLSA, the rules are basically as follows:

Minors Aged 16-17 – may be employed for unlimited hours in any occupation other than those declared hazardous by the Secretary of Labor.

Minors Aged 14-15 – may be employed outside of school hours in a variety of non-manufacturing and non-hazardous jobs for limited periods of time and under specified conditions. Hours are limited to 8 hours per day, and 40 hours per week during non-school weeks.

Minors Under 14 – may not be employed in non-agricultural occupations covered by the FLSA.  This means that children under 14 are expressly prohibited from working most jobs.

“Hazardous Work” for Minors.

You might be surprised at some of the work that is considered “hazardous” under the FLSA. Take the hazardous work violations found against Hawaiian Falls:

“Investigators found the employer violated the child labor provisions of the Fair Labor Standards Act by allowing employees under the age of 18 to operate equipment prohibited for use by minors, including a chain saw and a motorized utility vehicle/golf cart….

The investigation also found that workers under the age of 16 had operated prohibited equipment including gas-powered pressure washers, open-flame grills, automatic rotisseries, and pizza ovens, and had worked in walk-in freezers.”

Even to most HR and HSE professionals, it might come as a surprise to know that “walk-in freezers” qualify as hazardous. But the Secretary of Labor’s standards on the subject of hazardous work are tough and exacting, especially for children in the 14-15 years of age category.

In the most recent DOL guidance, 19 categories of work are expressly prohibited as hazardous for 14-15 year olds – ranging from obviously dangerous work in mining and boiler maintenance, to the more innocuous use of lawnmowers and golf carts. These are expressly prohibited, as well as any other occupation “found and declared to be hazardous by the Secretary of Labor.”  It’s a broad scope, indeed.

The DOL has also promulgated a list of occupations that “may be” permitted for 14-15 year olds, including clerical work and lifeguarding, but these are also subject to further limitation by the Secretary of Labor.

For 17 year olds, the scope of hazardous work is still very broad, generally prohibiting driving of motor vehicles, and use of more heavy machinery – including forklifts, balers, and power cutting tools.

Carefully Review the Rules Before You Hire.

As with any rules, there are some exceptions to the FLSA provisions on child labor.   However, in most instances where the work borders on hazardous, the DOL will presume a prohibition.  And, because every job and every child is reviewed on a case-by-case basis, even those occupations on the “permitted” list can be deemed hazardous, in certain situations.  Employers offering summer work to minors must be cognizant of these limitations when determining job duties.

Demetri Economou is an associate in Kane Russell’s Labor & Employment Practice Group, based in Houston. Should you have any questions about this case or other legal issues, please contact Demetri at deconomou@krcl.com.