The Minnesota Department of Labor and Industry’s (MnDOLI) May 31, 2018 Wage and Hour Bulletin reminds employers of teen working limitations, as schools are ending for the summer. Although I wrote about this topic recently in this blog post, as the teens start to flood the summer marketplace, I thought it important to share (and heck, let’s be honest, this may be the quickest blog I’ve even “written”):

May 31, 2018

Keeping teens safe at work this summer

Summer break is nearly here for Minnesota teens and many may be looking for employment. Following are some important tips about child labor laws for employers to consider before hiring teens for summer work. Contact us if you have any questions.

The Minnesota Department of  Labor and Industry strives to help employers keep workplaces safe for teens through education and by enforcing the Minnesota Child Labor Standards Act.

Child labor restrictions specific to ages 14 and 15

Teens ages 14 and 15 cannot:

  • work before 7 a.m. or after 9 p.m.;
  • work more than eight hours in a 24-hour period; or
  • work more than 40 hours a week.

Sixteen- and 17-year-olds don’t have working-hours restrictions if school is not in session.

Examples of work teens cannot do

Those age 17 and under cannot:

  • work in construction;
  • work in the sale, serving, dispensing or handling of alcohol;
  • operate power-driven machinery, such as forklifts, saws or meat grinders; or
  • work in the operation, erection or dismantling of rides or machinery in an amusement park or traveling show, or loading or unloading passengers on rides.

Those age 15 and under cannot:

  • operate power-driven lawn and garden equipment;
  • operate power-driven machinery, such as drills, sanders, etc; or
  • work with laundry, rug cleaning or dry cleaning equipment.

For a complete list of prohibited occupations for minors, contact us or visit our webpage about prohibited work for youth.

Exemptions for types of work for teens

Following is a list of exemptions for the type of work a minor may perform, the age at which they can work and work-hour restrictions.

Minors under the age of 14 may be employed as:

  • an actor, actress or model;
  • a newspaper carrier if at least 11 years old;
  • a youth athletic program referee if at least 11 years old and with parental or guardian consent); and
  • an agricultural employee if at least 12 years old (this work is also exempt from work-hour restrictions).

Prohibited employment for minors under the age of 18 does not apply to a minor:

  • who is 17 and is a high-school graduate; or
  • who is working for a parental corporation owned solely by the minor’s parents or guardians.

Exemption permits for working minors

Labor Standards has the ability to exempt minors from work-hour restrictions and prohibited employment.

Employers may complete an exemption permit for the minor in question and submit it to us for review via mail, email or fax.

 

It’s that time of year again. March Madness, spring break, and teens that are looking forward to summer and getting a job, or working extra hours at their current job during spring break. What does this mean as a Minnesota employer?

Wages – The youth wage rate is (as of January 1, 2018) $7.87/hr. for teens under 18. Since federal is lower (currently $4.25), the higher rate applies to Minnesota employers.

Work Hours – Here is what I get asked about most (as always, there are some quirky exceptions which I have omitted):

  • Under 14 – Can only be employed as newspaper carrier, in agriculture, as an actor/model/actress, or a youth referee.
  • Under 16
    • During school year:
      • Cannot work before 7 am or after 9 pm or during school hours (this basically means they can only work after school until 9 pm)
      • Cannot work more than 40 hours a week or 8 hours per day (except ag)
    • During summer:
      • Cannot work before 7 am or after 9 pm
      • Cannot work more than 40 hours a week or 8 hours per day
  • Age 16 & 17
    • During school year:
      • Cannot work after 11 pm on an evening before school day
      • Cannot work before 5:30 am
      • Parents may approve expansion to 4:30 pm and 11:30 pm
    • During summer:  work away!

Type of Work – Also, I’d be remiss not to remind employers that teens are limited in certain work or jobs, the full list can be found here. For example, under 16 cannot operate machinery, portable power-driven tools/machinery (drills, sanders, polishing, etc.), meat slicers, and bakery machinery.  Examples for under 18, they cannot operate power-driven machinery such as forklifts, saws, logging or paper operations, gravel pits, building maintenance more than 12 feet above ground level, woodworking machinery.

The DOL started 2018 with a bang, adopting the primary beneficiary test in lieu of the previous six-part test for determining whether interns and students are employees for purposes of the FLSA. This is a pretty big deal for employers desiring to use unpaid internships. The decision to adopt the primary beneficiary test comes after numerous federal courts rejected the DOL’s six-part test that required an intern or student to meet all six factors in order to be exempt under the FLSA requirements. As a practical matter, most internship programs failed to meet at least one of the six factors resulting in the intern being consider an employee and subject to minimum wage and overtime requirements.

The new seven factor primary beneficiary test analyzes “the ‘economic reality’ of the intern-employer relationship to determine which party is the ‘primary beneficiary’ of the relationship”.  Here are the seven factors:

  1. The extent to which the intern and the employer clearly understand that there is no expectation of compensation. Any promise of compensation, express or implied, suggests that the intern is an employee—and vice versa.
  2. The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands-on training provided by educational institutions.
  3. The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit.
  4. The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar.
  5. The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.
  6. The extent to which the intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern.
  7. The extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.

Since no single factor is dispositive, the DOL now has greater flexibility to determine the relationship of the employer and intern or student on a holistic case-by-case basis.

clickAs a result of President Obama’s White House Summit on Worker Voice, on October 28, 2016, the U.S. Department of Labor’s Wage and Hour Blog announced its new beta website – Worker.gov. This website is, according to the DOL, designed to provide “easy-to-access” solutions for employees who need answers “fast”. The DOL admits that “Even the best government websites can be difficult to navigate” – true, true. That being said, it makes it only about 4 clicks for a worker to file a claim electronically.

In short, the website, which is in beta and therefore undergoing constant changes, is designed to provide employees with an easy way to determine whether their rights are being violated, then provides them with a simple click to file a claim against an employer. Partnering with the NLRB, EEOC, and DOJ, the DOL wants the website to provide “critical information” to employees about their rights, who may not know whether they have a “FLSA” or “FMLA” problem, but an “unfairness-on-the job problem”. Employees answer a “few simple questions” and voila! The website will supposedly provide the relevant information, expanding in the weeks and months to come, and “learning” from the workers that use it about what kind of information is being sought – and the site will supposedly begin to feature that information prominently for similar workers.

The beta site provides a drop down, under which five job titles are currently available – day laborer; office worker; nail salon worker; restaurant worker; and construction worker. From there, it takes to you a “Tell Us what happened. We can help.” screen with several options such as – “You have the right to be treated equally.”, “You have the right to engage with others to improve wages and working conditions”, “You have the right to a safe and healthy work environment”, and “You have the right to be paid.”  From there, the employee can chose what happened (i.e. suggestions – all are in the negative – such as “I was not paid for work I performed”) , and then be taken to a “File a Claim” screen.

What does this mean for employers? I have to believe we will see an increase in filed complaints, as that is the whole purpose of the website – to make it easy for employees to complain about unfair work treatment – and provide a simple click to do so.

child laborWell, summer went by way to fast, and the kids are back in school. I’ve had a few parents of teens mention they cannot believe their kid is being scheduled to work until 10:30 p.m. at night – closing up nonetheless! Is that okay? Depends. Minnesota employers should recall that youth work rules change during the school year to be more restrictive. For those parents wanting or “allowing” their kid to work later – no can do. Like wage and hour laws, you can’t “agree” around the law. It is what it is. So, what is it? For non-agricultural occupations (where the parent is not the employer):

Large Employers (FLSA employer – annual sales more than $500,000):

  • Youth 14 and 15 cannot work:
    • Before 7 a.m. or after 7 p.m. (except from June 1 to Labor Day may work until 9 pm);
    • More than 18 hours during a school week;
    • During school hours on a school day (even if home schooled);
    • More than 3 hours a day on a school day (includes Fridays);
    • More than 8 hours a day on a non-school day; or
    • More than 40 hours during a non-school week.
  • Youth 16 and 17 cannot work (by Minnesota state law, which is more restrictive):
    • After 11 p.m. on nights before a school day (except can work until 11:30 with parent permission); or
    • Before 5 a.m. on a school day (except can work at 4:30 a.m. with parent permission).

Small Employers (not subject to FLSA – annual sales less than $500,000):

  • Youth 14 and 15 cannot work:
    • Before 7 a.m. or after 9 p.m.;
    • More than 40 hours a week; or
    • During school hours on a school day.
  • Youth 16 and 17 cannot work:
    • After 11 p.m. on nights before a school day (except can work until 11:30 with parent permission); or
    • Before 5 a.m. on a school day (except can work at 4:30 a.m. with parent permission).

Keep in mind, the work youth performs is still greatly restricted, as I wrote about earlier this summer (such as construction, sawmills, operating power-driven machinery such as forklifts and saws; etc.).

In the wake of all the hoop-la about the overtime changes, I wanted to post a reminder to our Minnesota employers to prepare now (in your payroll system, personnel records, etc.), for the minimum wage increase effective August 1, 2016, lest you find yourself at the receiving end of a MnDOLI audit or complaint.  In case you’ve gotten too much sun this summer and have forgotten – here are the increased minimum wages:

Minimum Wage Effective August 1, 2016
Large employer wage $9.50/hour
Small employer wage $7.75/hour
90-day training wage
(under 20 years of age)
$7.75/hour
Youth wage
(under 18 years of age)
$7.75/hour
Inflation increase Inflation indexing begins Jan. 1, 2018

Small employers are those with annual gross revenue of less than $500,000. Large employers are, not surprisingly, those with an annual gross revenue of $500,000 or more.

Keep in mind that Minnesota minimum wage is higher than federal minimum wage, thus, these hourly wages will apply to all hours worked (part-time or full-time). Also, I’ve said it before, but Minnesota law does not allow a tip credit. Therefore, employers should not count tips as part of meeting the above minimum wage requirements. Finally, there are some limited exemptions from Minnesota’s minimum wage laws – babysitters, taxicab drivers, nonprofit volunteers, people providing police or fire protection, employees subject to US DOT provisions, and a few other quirky positions.

As school is out for the summer and teens are hitting the workforce, employers may be asked to turn over the minor’s wages to his or her parent. Is this legal? Yes, according to the Minnesota Payment of Wages Act:

Any parent or guardian claiming the wages of a minor in service shall so notify the employer and, if failing to do so, payment to the minor of wages so earned shall be valid.”

Minn. Stat. 181.01. A minor has control of his or her earned wages unless such a request is made. However, I suspect this is much more common with child actors than your fast food worker teen. This is such a quirky law that I recently was made aware of, I couldn’t not share it – so there you go! If you want to learn more about paying minors, I blogged about it here. If you want to learn more about the hours minors can work, I blogged about it recently as well here.

Panorama_view_of_ValleyfairAs kids flock to Valleyfair today, one thing is clear…schools out for summer!  [I really need a guitar riff here].  What hours can our teens work?  Teens ages 16 and 17 have NO restrictions during the summer! So, schedule away! I’m sure their parents will be more than grateful.  However, teens ages 14 and 15 cannot work before 7 am, or after 9 pm, and cannot work more than 8 hours per day and 40 hours per week – even during the summer and on weekends.

Kids younger than 14 cannot work at all, with some exceptions.  If they are 11 they may be a newspaper carrier.  If they work in agriculture they must be 12 and have parental consent.  They may be an actor or model, or may be a youth athletic program referee (if at least 11 and officiating in a bracket younger than their own age and with an adult representing the program on the premises).  In additional, a minor may be employed to do home chores, babysit, or be employed by a parent.

However, the MnDOLI Commissioner may grant exemptions to the youth work rules, but only if it is “in the best interest of the minor involved”, or for minors participating in state-approved training programs (such as those taught by a trade union).  Keep in mind that child labor exemption permits are an exception to the rule, and is typically reserved for unique qualifications, special employer needs (I have no idea what this would be), or youth with special talents.

Retain Proof of Age of Minor Employees!

But she LOOKED 16!  He SAID he was 16!  This is never a defense.  Don’t get so excited to have someone excited to do the dirty work that you don’t stop to verify the facts.  Employers are required to obtain a minor’s proof of age and maintain that with your payroll records.  Acceptable documentation may be a birth certificate, copy of driver’s permit or license, age certificate issued by school, or an I-9. This proof must be kept for so long as the teen is employed, and available for an agent of the Minnesota Division of Labor Standards to examine it if they so desire.

Repercussions

And if you mess up?  Penalties under Minn. Stat. 181A.12 range in amounts from $250 (for failing to have proof of age in his or her personnel file) to $1,000 per employee.  In addition, it may be found to be a misdemeanor and, should an employer engage in repeated violations, it may be a gross misdemeanor.

Lawn mowerFridays in Minnesota can be a time of anticipation to sneak out early and head up North.  In April…not so much.  Accordingly, I thought it would be fun to start a “Friday Fun Fact” post.  I love practicing law because it’s just that – “practicing”.  I get to learn new things every day, and so why not share some of the interesting and weird facts I’ve learned along the way?

At the federal level, youth worker protections are actually covered by the Fair Labor Standards Act (FLSA), and regulated by the Department of Labor’s Child Labor Regulations.  In an earlier post I wrote about paying teens to work in Minnesota, but didn’t get into child labor protections as I want to keep this blog informative about wage and hour laws affecting Minnesota employers.  Though the snow today suggests otherwise, summer is hopefully soon upon us  and teens will be looking for jobs soon (please help us get them out of the house!).  While Occupational Safety and Health Administration (OSHA) law and regulations certainly apply to all workers’ safety, you may not realize that youth protection specifically is covered by the FLSA at the federal level (what we all typically just think of as regulating overtime, minimum wages, hours of work, etc.) .  In Minnesota, child labor laws are covered by the Child Labor Standards Act.  Accordingly, if you are trying to determine what job duties a teen can perform this summer – don’t forget about the FLSA – the more restrictive laws will apply!

As the snow has melted (though I suspect it’s not done), I’m hopefully optimistic that it will start to green up – and soon.  As I see the various “help wanted” signs around town, I thought it may be time for a quick thought or two on paying teens in Minnesota this summer.0HCMIT272C

Define “Teen” – Can I Employ My Friend’s 13 Year Old?

First, let’s put the 13 and under children aside – the Minnesota Child Labor Standards Act states that they may not be employed in the traditional sense, with some exceptions (such as newspaper carrier, model, actress, agricultural field worker, babysitting, youth referee, etc.).  Minn. Stat. 181A.07.  However, 14 year old and up are fair game…with some special restrictions (that’d be a whole other article).

Can I Pay Teens Less Than An Adult – Recoup Texting Time?!

Minnesota’s Youth wage (under 18 years) is $7.75 as of August 1, 2016…the same as the 90 day training wage (under 20 years old)…and the small employer wage (gross revenue of less than $500,000 and not subject to FLSA).  And remember, Minnesota does not allow a tip credit, so teens working in a restaurant must make at least $7.75 per hour – guaranteed.  Texting – that’s a discipline issue!

If you are a large employer, as of August 1, 2016, the minimum wage is $9.50 per hour.  Keep in mind that if an employer is covered by another statue such as prevailing wages (state or federal) – the higher hourly wages apply.

Recordkeeping Considerations

An employer of teens must maintain proof of age as a part of payroll records.  This can be in the form of a birth certificate, copy of driver’s permit or license or I-9.  Don’t forget to keep a copy of whatever you look at to verify the age.