We do have federal and state child labor laws, and they are quite extensive and comprehensive. The reason for the continuation and expansion of these laws is simple. Today, more teenagers are working at more types of jobs, during more weeks of the year for longer weekly hours than has ever been true in the past. The 1990 Census documented over 20 million young people aged 12 through 17. At any given time during the year, it is estimated that some 5 1/2 million of them are working, and that does not include those under 12 years old who are working illegally. Over half of the 16- and 17-year-olds and more than a quarter of all 15-year-olds are part of the nation's workforce.
These high school students aren't just stopping by Mom and Dad's hardware store after classes to put in two hours behind the counter before they start their homework. Those 15-year-olds average 17 hours of work per week, while the 16- and 17-year-olds average 21 hours of work per week. These figures reflect only the reported incidence of child labor. We know that in the vast underground economy and even in the legitimate sector, millions of additional young people are hired in illegal jobs, exactly because they are less experienced, less costly, and less complaining employees.
And what jobs do these young workers typically perform? The Bureau of Labor Statistics of the US Department of Labor reports that almost four out of five young workers aged 16 through 19 are concentrated in just three types of employment: in retail sales and service work (particularly in food service), as administrative support staff, and as laborers and handlers.
And are these jobs wholesome, safe activities for developing youngsters? Occupationally related accidents and injuries have been soaring in the past few years. The National Institute of Occupational Safety and Health estimates that each year over 64,000 teens are treated in emergency rooms for their occupational injuries, exclusive of agricultural injuries. In fact, adolescents suffer an estimated occupational injury rate of up to 16 per 100 full-time employees, compared to the adult rate of less than 9 per 100 full-time employees. Cuts and lacerations, usually of the hands and fingers, are the most common youth employment injuries, followed by bruises and contusions, and strains and sprains. These injuries arise from the inexperience of young workers, not their age or developmental level. An extremely large proportion of workplace injuries, some 40 percent, occur to workers in their first year of work, regardless of their age.
Given the high level of employment activity among youngsters, we need to understand the legal restrictions that have been enacted for their protection. Although the School-to-Work Opportunities Act of 1994 did not detail the legal compliance needed by its state-funded agencies, its requirement of adherence to all federal, state, and local laws most prominently includes the application of child labor laws to the wide variety of work and training programs authorized by the Act. In fact, it is clear in the School-to-Work Opportunities Act that the federal and state child labor laws will apply to its employment and employment-related programs, and that compliance with these restrictions is mandatory. It is crucial that those involved in implementing the Act fully understand, appreciate, and support these rules as the reasonable response to the risks of child exploitation and endangerment that they represent.
The 50 state systems are an equally relevant part of the legal mosaic that governs each youngster's labor. Each state has its own child labor law and these laws vary widely and unpredictably. Some were enacted close to 150 years ago and address every type of labor and all imaginable working conditions, from corn detasseling to seasonal fish processing. Other states enacted only a minimal set of child labor provisions in response to the passage of the FLSA some 55 years ago and their statutes largely consist of blanket exemptions to many employment sectors, thereby exempting most child labor activities from any state governmental restrictions.
Some states closely adhere to the federal law, in an effort to align the laws of the two jurisdictions and thus make their laws more clear and comprehensible for employers. Some states' rules are notably stricter than the federal provisions, while other states are quite a bit more permissive. Additionally, whole areas of child labor law exist only in state law, as the federal law is utterly silent on those issues. For example, Employment Certificates (perhaps better known on the street as "working papers") and hours restrictions for those at least 16 years old are solely creatures of some states' laws.
So, what law applies when and where? For purposes of this paper, let's assume that all businesses, nationwide, are covered by the FLSA. That gives us the provisions of the FLSA and those of the particular state of employment, as a dual system, each requiring compliance and leaving a youth employment program administrator scratching his or her head. The rule of interpretation is really rather simple and has no exception. In any particular state, when both the FLSA and that state's child labor laws regulate the same activity or conduct and their rules conflict, the labor standard that applies is the one that is more strict. For example, pursuant to Mississippi's child labor law, youngsters can work in mills, canneries, workshops, factories and manufacturing establishments at the age of 14. However, the FLSA does not permit any manufacturing, workshop, or processing work until age 16. Since the federal law is stricter, its standard applies; therefore, in Mississippi, the minimum age for milling, canning, workshop occupations and other types of manufacturing is 16.
To take another example of conflicting regulations, Iowa bars all youngsters under the age of 18 from working with laundry or dry cleaning machinery, but the FLSA restricts such work only until the worker is 16. Consequently, Iowa's stricter standard applies and laundry or dry cleaning work is not permitted until the worker is 18 years old. In many cases, when comparing the rules of the federal and state child labor law, one will find that only one of these jurisdictions mentions the particular activity or conduct at all. In those cases, no interpretation is needed--whatever its source, be it federal or state law, the restrictive standard applies.
Generally, both federal and state child labor laws cover the same areas of a youngster's work life. Both jurisdictions regulate only those workers under 18 years of age, after which they are considered adult workers protected by federal and state general labor laws. There are, of course, some exceptions: occupational restrictions on such work activities as driving a truck and serving alcoholic beverages continue until the youngster is up to 21 years old. By and large though, when one looks at child labor laws, one will see limitations on young workers only until the age of 18.
Both jurisdictions tend to make their provisions applicable to age categories that span two years, generally enacting the same provisions for 14- and 15-year-olds as a group, and then 16- and 17-year-olds as another group. Both federal and state child labor laws usually include lists of permitted work activities and prohibited activities. Those occupations that are found to be particularly dangerous and therefore banned until the worker is at the age limit of these laws, that is, the full 18 years old, are called Hazardous Occupations or "H.O.s". The FLSA and most state child labor laws also cover the permitted and prohibited number of hours of work, both per day and per week, as well as the permitted and prohibited times of the day that each two-year age group can work. Both jurisdictions name their Labor Departments as the enforcement agency of their statutes.
As a rule, 14 is the minimum, lawful, working age for specified non-agricultural employment. Further, for those under 16, work activities are highly circumscribed and the hours of work and times of day and week are strictly limited. The basic minimum age of employment for most work activities--either with minimal times restrictions or totally unrestricted hours--is 16 years old. In agriculture, children are usually permitted to work at any age for their parents' farm, and youngsters are usually either unregulated or permitted to work at age 12 in commercial farming.
Both the FLSA and most states exempt particular work activities from all or certain portions of their regulatory scheme, such as their hours provisions or a state's requirement of an employment certificate. These activities are referred to as either totally or partially "exempt occupations." They most frequently include agricultural work, domestic or casual labor, and working for one's own family. Again, however, a caveat must be attached to this broad statement, as the variation among the states on this point is wide. For those subject to the states' compulsory education laws, work is generally not permitted during school hours when school is in session. That general rule, however, is also subject to a variety of federal and state vocational education, apprenticeship and training exceptions.
They can be employed in office and clerical work, including operating office machines, but only operating such power-driven machines, not repairing, oiling, adjusting or assisting on such activities. They can cashier, sell, model, produce art work and work in advertising departments, window trimming and comparative shopping. They can also price, mark, and tag, by machine or by hand, as well as assemble, order, pack and shelve.
They can also bag and carry out customers' orders. They can do errand and delivery work by foot, bicycle or public transportation. Clearly, errand and delivery work by motor vehicle would not be permitted. They can perform clean-up work and grounds maintenance and use a vacuum cleaner or floor waxer in their duties, but not a power-driven mower or cutter. This last prohibition on operating lawn and other types of mowers and hedge and other types of grounds maintenance cutters frequently arises in municipal youth employment program placements. The rule is clear. Under federal law, this equipment cannot be used lawfully until the worker is 16 years old, and only in connection with employment at a retail, food service, or gasoline service establishment. Also, some states restrict the use of power mowers and cutters even further, not permitting their use by youngsters until they turn 18.
With some exceptions, kitchen work and other work involved in food and beverage preparation and service are permitted for 14- and 15-year-olds, including the operation of machines and devices used for such work, such as dishwashers, dumbwaiters, toasters, popcorn poppers, milk shake blenders and coffee grinders. Cooking and baking, however, are not permitted.
Certain restrictions concerning cooking and baking and food preparation are so commonly involved in young peoples' work and so detailed that a separate discussion of their actual meaning is required. Although there is a ban on 14- and 15-year-olds working as cooks and bakers, in fact this restriction does not include those types of cooking and baking usually performed in fast food establishments. This is because this prohibition does not apply to cooking and baking at "soda fountains, lunch counters, snack bars or cafeteria serving counters," which were the fast-food establishments of the 1940s when these prohibitions were written. The U.S. Department of Labor has applied this exception to the ban on cooking and baking to fast food establishments, ruling that one of the crucial elements of a worksite that must be present to come within this exception and thereby permit such activity, is that the cooking and baking must be able to be seen from the front service counter.
As a result of the years of enforcement by the U.S. Department of Labor and the integration of these rules with the H.O.s that restrict the labor of all those under 18 years old, 14- and 15-year-olds can use food preparation equipment only if it is of the domestic variety in size, power, and complexity. Specifically, for instance, the ban on minors' operation of bakery equipment has meant that 14- and 15-year-olds are not permitted to operate, repair, adjust, oil or perform similar activities on dough mixers, which are frequently used in mass volume pizza-making restaurants. The generally permitted activity of "kitchen work" has another barred activity for this age group--meat processing. This common food preparation activity at the deli departments of large supermarkets and at certain types of fast food restaurants is barred as a Hazardous Occupation. Since the use of the electric slicer is not permitted until the age of 18, that restriction is relevant when interpreting the apparent permission of every type of kitchen work for 14- and 15-year-olds.
Also, no 14- or 15-year-old may operate, set up, adjust, clean, oil or repair power-driven food slicers and grinders, choppers and cutters, and bakery-type mixers. This prohibition controls all work activities at retail and food service businesses for 14- and 15-year-olds and must therefore be understood as the significant limitation on food preparation, cooking and baking that is intended.
Another work activity that 14- and 15-year-olds can perform is cleaning vegetables and fruits and wrapping, sealing, labeling, weighing, pricing and stocking goods. However, such work can only be performed in areas that are physically separate from those where meat is prepared for sale or at outside freezers or meat coolers. These restrictions would bar a youngster under 16 years old from wrapping, sealing, labeling, weighing or pricing goods in the meat cutting, trimming, and preparation areas of supermarkets and butcher shops, for example.
Working in connection with cars and trucks is permitted this age group, as long as it is limited to dispensing gas and oil, providing courtesy service at a service station and cleaning, washing and polishing cars. Specifically excluded activities for 14- and 15-year-olds in this field include work involving the use of pits, racks or lifting apparatus or involving the inflation of any tire mounted on a rim with a removable retaining ring, as is most frequently used in tire repair.
In addition to the permitted work activities at retail, food service and gas service businesses, there are also specific jobs at those locations that are barred for workers under age 16. For example, they may not perform any duties in or around a boiler or engine room. And they are not permitted to maintain or repair the retail, food service or gas service station work premises nor its machines or equipment. They cannot use ladders, scaffolds or the like, nor work from window sills, washing outside windows. They may not work in freezers or meat coolers or in meat preparation, although, as previously discussed, they may wrap, seal, label, weigh, price and stock foods, including meat, when not performed in the prohibited areas. They may not load or unload goods from trucks, railroad cars or conveyors. This last restriction is most commonly applicable to food processing occupations in fruit, vegetable and seafood operations, where conveyored foodstuffs are scanned and selected. They also may not work in warehouses, except for office and clerical work off the warehouse floor.
We now turn our attention to the employment of 14- and 15- year-olds at non-agricultural locations other than retail, food service and gasoline service establishments. Again, this discussion is amplified by the rule that they may also be employed in any occupation except those that are specifically prohibited. Those specifically excluded occupations bar many workplaces as well as actual occupations.
For example, and most prominently, 14- and 15-year-olds may not be employed in any manufacturing, mining or processing occupation. The restriction on "processing" has been defined to include any work that transforms materials or goods in any way, such as folding freshly laundered shirts. It also includes more obvious applications of the word, such as fish filleting, poultry dressing, nut cracking and commercial laundering and dry cleaning (unless it is in a retail, food service, or gas service site in one of the occupations specifically permitted to 14- and 15-year-olds in the previous discussion). They also cannot be employed at any duties that take place in workrooms or workplaces where goods are manufactured, mined or processed, again except for those permitted duties in retail, food service and gas service businesses.
Other prohibited activities include operating or tending any power-driven machinery of whatever sort and hoisting apparatus, other than the office machines and other machines specifically permitted for operation by 14- and 15-year-olds in retail, food service and gas service establishments. They also cannot be employed in occupations in connection with transporting persons or property by any means, warehousing and storage, communications and utilities and construction, including repair, unless the occupation is in office or sales work and is not performed on the transportation media involved or at the actual construction site. And of course, they can perform no Hazardous Occupations, since those are barred for all workers under 18 years old.
All of these restrictions on the non-agricultural labor of 14- and 15-year-olds are subject to some exceptions for Work Experience and Career Exploration Programs (WECEP). Students who are WECEP participants may be excepted from some of these occupational restrictions pursuant to an agreement between the U.S. Department of Labor's Wage & Hour Division and a State's Educational Agency. Youth program administrators need to check with their local educational authority to learn what exceptions are permitted in their area.
As to the agricultural employment of 14- and 15-year-olds, the federal child labor law specifies particular machines and activities that are not permitted for their vocational use, unless the worker is a certified student learner or 4-H or vocational agriculture training program certificate holder. Again, program administrators need to check with their local educational authority to establish which agricultural work activities are excepted in their community.
There are no exceptions to the following ten H.O.s, which means that they are prohibited for all 16- and 17-year-olds.
1. Manufacturing and storing explosives.
2. Motor vehicle driver and outside helper. However, this restriction does not bar 16- and 17-year-olds from car and small (under 6,000 pounds) truck driving, when it is "occasional and incidental" to the youth's employment, and then only during daylight hours, and not including any towing of vehicles. This eliminates all jobs that require either driving for deliveries, errands, and pick-ups, and all jobs as the assistant for such activities, even if the young worker never takes the wheel. The law (and the documented experience of a very high rate of adolescent injuries) considers a job consisting of pulling over on public roads, clogged urban streets, or at transportation bays to load and unload from delivery trucks or driving for perhaps a ten-hour day, to be an extremely hazardous activity, quite different in kind and in result from young people's recreational use of their own cars.
3. Coal mining.
4. Mining other than coal mining.
5. Logging and sawmilling, although 16- and 17-year-olds may work in the offices or in repair or maintenance shops or logging camps of such operations.
6. Jobs involving exposure to radioactive substances and ionizing radiations.
7. Operating, riding or assisting on power-driven hoisting apparatus, including elevators and work that involves riding on a manlift or on an unattended freight elevator, except that operating an unattended automatic passenger elevator is permitted.
8. Operating, assisting, setting up, adjusting, repairing or cleaning power-driven bakery machines, including dough mixers, most commonly used in commercial pizza restaurants, as was previously discussed.
9. Manufacturing brick, tile or like product, except for work in the offices of such an establishment.
10. Wrecking, demolition, and shipbreaking, including cleanup and salvage work (and also including all such activities at the site of a total or partial razing), demolishing or dismantling of a building, structure, ship, or any other vessel. This bars 16- and 17-year-olds from working on the site of construction activities that involve wrecking or demolition, but not from otherwise permitted jobs at construction sites in general.
The next group of H.O.s permit 16- and 17-year-old certified student learners and enrolled apprentices to perform the activity, but all other 16- and 17-year-olds are restricted.
11. Operating, setting up, adjusting, repairing or cleaning power-driven woodworking machines, including bearing or removing any material or refuse directly from a saw table or the point of operation.
12. Operating, assisting, setting up, adjusting, repairing or cleaning power-driven metal forming, punching or shearing machines, which does not however, include machine tools, whose use is permitted to this age group.
13. Most jobs involved in slaughtering and meat packing, processing or rendering, or in such plants or such wholesale, retail, or service establishments, and all jobs involved with operating, feeding, setting up, adjusting, preparing or cleaning power-driven meat processing machines. These meat processing and preparation activities are also prohibited at supermarkets, delis, restaurants or at any other location.
14. Operating, assisting, setting up, adjusting, repairing or cleaning power-driven paper product machines, including paper balers. Also barred by this H.O. is all work that involves starting or stopping such machines or placing materials into or removing them from such machines. Paper balers are usually found at supermarkets and other large retail operations, where they are used to break down paper boxes. This activity leads to frequent serious injuries.
15. Operating, assisting, setting up, adjusting, repairing or cleaning power-driven circular or band saws and guillotine shears, unless they are equipped with fully automatic feed and ejection. This prohibition includes starting or stopping the machine or placing materials into or removing them from the machine.
16. All jobs in roofing operations, except for such related activities as gutter and downspout work, installing air conditioners, exhaust, ventilating and similar appliances attached to roofs.
17. Excavation work, including working in incomplete tunnels and shafts.
During school days, 14- and 15-year-olds may work up to 3 hours; during weeks when school is in session they may work up to 18 hours per week, unless they are WECEP participants, in which case they may work up to 23 hours per school week. At the times during the school year when school is not in session, such as Christmas vacation periods, they may work 40 hours per week; on weekend days during the school year, they may work 8 hours.
Permissible times of day are also regulated for 14- and 15- year-olds. From the day after Labor Day through May 31, they may work only between the hours of 7 a.m. and 7 p.m. From June 1 through Labor Day the permitted evening hour is extended, allowing them to work between 7 a.m. and 9 p.m. The night-hour limitation requires that young workers utterly complete their jobs by that hour; therefore, to ensure that all required work is completed by the restricted hour, those under 16 years old should work only until 30 minutes prior to the permitted night-hour limit, thus leaving some time for the unexpected delays and added duties that may occur at the last minute in many occupations.
This completes the discussion of the FLSA's child labor law provisions. Other relevant issues, such as employment certificates, theatrical employment, alcohol beverage service and newspaper delivery are matters of state law only.
Although the variation among the states' child labor provisions is wide, there are certain commonalities. An Employment Certificate is required by most states for most types of work and it is the employers' responsibility to ensure that it has been issued. The employer must keep it on file at the employment site. The certificate is issued by the local school authority upon the submission of such required documentation as the child's proof of age, employers' statement of the work to be performed and its hours, parental consent and proof of workers' physical fitness. Most states provide for several types of certificates. They most typically have an employment certificate for students' part-time work during the school year. They may also have a full-time employment certificate for summer work or for those who are no longer in school.
Also, occupation-specific certificates are usually required for such work as theatrical and modeling activities, street trades, newspaper delivery and agricultural work. Some states require a new employment certificate application and issuance with each new employment or for each year. Others permit the right to work by issuing certificates that are valid until the young worker turns 18 years old. Two states require adequate school performance or attendance as the prerequisite to certificate issuance. All states can revoke their permission, under a variety of circumstances.
Other elements that are exclusively under state law include rules concerning theatrical employment, newspaper delivery work and handling, serving, or manufacturing alcoholic beverages. In the case of theatrical work (which frequently includes modeling as well as entertainment jobs in all media), most states have multiple restrictions, varying the types and hours of permitted work according to the age of the performer. These provisions also usually address the educational arrangements that must be made in order to employ a young theatrical worker. Frequently, as noted above, a special theatrical employment certificate or permit is required, with a variety of qualifications demanded by the different states. In states with large entertainment industries, these permits are usually issued by a separate unit of the educational or labor departments.
For newspaper delivery, in addition to age and hours limitations, there is frequently a provision requiring a specialized newspaper delivery permit, distinct from the usual employment certificate. Most commonly, the deliverer's school issues such permits.
Employment involving alcoholic beverages, whether as a server, cashier, sales clerk or manufacturer, is also exclusively governed by state law. Most commonly, young workers must be 21 years old in order to sell, serve or manufacture alcoholic beverages, although some states permit it at age 20. Most of these state laws bar young workers under 18 from any role involving the sale, service or manufacture of alcoholic beverages, although some states allow youngsters to cashier beer purchases at grocery stores at age 16. These strict limitations mainly affect young workers' employability at full-service restaurants where liquor is sold and served. In most states the rules concerning the employment of minors at these occupations are under the jurisdiction of the state Alcohol Beverage Control Commission (or equivalent).
Another area under exclusive state rule is any limitation on the hours of work of 16- and 17-year-olds. About one-third of all the states have some restriction on their permitted night- hour, total weekly or daily hours.
In addition to child labor laws, there are some other areas of law with age-specific provisions relevant to young workers. For example, workers compensation laws in many states have separate provisions for child laborers. Frequently, they penalize employers of illegally hired minors by doubling or trebling the compensation due such an injured worker. State workers compensation boards (or the equivalent) should be checked for the rules governing minors.
Finally, all education rules that affect child labor are solely a function of state law. These rules address such work-related issues as compulsory school requirements (affecting, for example, which young people may be legally available for full-time work), the availability and requirements for vocational education, exceptions to the usual work restrictions and special work permits issued to educationally or physically handicapped youth. The local school district would be the first place to check on these regulations, although for statewide issues, a call to the state educational department would also be appropriate.
It should also be noted that states have their own enforcement personnel as well as their own code of violations and penalties. But the states vary widely in their commitment of resources and political will to police child labor. Maryland, for example, has had no child labor law enforcement for several years and refers all complaints and inquiries to federal labor enforcement offices in their state. New York is at the other end of the spectrum, with over 100 labor investigators, many of them assigned to specialized units dedicated to ferreting out child labor violations in the garment industry, agriculture or retail trades. The most universal form of enforcement is the "complaint method," wherein state labor investigators respond to complaints they receive by telephone or letter.
Our youngest workers need and deserve our assistance in insuring that their working lives, whether part of their school curriculum or not, are safe, healthy and legal. The cost of our neglect, in injured bodies and exhausted minds, is too high for our sons and daughters to pay.
This brief was developed at the Institute on Education and the Economy, Teachers College, Columbia University, which is part of the National Center for Research in Vocational Education.