A One Step, No Cost Strategy for Compliance with Federal Child Labor Laws

In California, a 16 year-old worker died when the forklift he was driving rolled over on him. In South Carolina, a 16 year-old teenager died as a result of falling two stories off scaffolding while working with his father on a framing crew. In Nebraska, a 17 year-old youth died after being pinned in a skid steer motor he was operating at a construction site. This tragic list of losses could have easily been avoided.

Despite federal child labor laws prohibiting the employment of youths in specific types of hazardous construction work, construction related accidents are the third leading cause of deaths among young workers. According to the National Institute for Occupational Safety and Health (NIOSH), youth between the ages of 15 and 17 working in construction have more than seven times the risk of fatal injury as youth working in other industries, and more than twice the risk of workers ages 25 through 44 working in construction. In the construction field, the top causes of teenage deaths are falls from roofs, crushing or running over by construction equipment, electrical shock, and lifting operations.

Construction fatalities involving youth between the ages of 15 and 17 can be avoided merely by employer compliance with the child labor laws under the Fair Labor Standards Act (FLSA). The FLSA sets an 18-year minimum age with respect to employment in any occupation declared by the Secretary of Labor to be particularly hazardous for minors. Construction companies can totally eliminate the risk of fatalities to minors merely by establishing and enforcing the FLSA's minimum age requirement for employment. If construction employers are not willing to impose an 18-year minimum age requirement, then it is imperative that they understand which occupations have been declared to be hazardous under the FLSA and police their worksites accordingly.

In general, under the FLSA, motor-vehicle drivers and outside helpers on any public road or highway, in or about any mine (including open pit mines and quarries) or in any excavation setting are too hazardous for the employment of minors. The FLSA does exempt the operation of automobiles or trucks not exceeding 6,000 pounds gross vehicle weight if such driving is restricted to daylight hours and the driving is only occasional and incidental to the minor's employment. The minor must hold a state driver's license valid for the type of driving involved and have completed a state-approved driver education course. The vehicle must be equipped with a seatbelt or a similar restraining device for the driver and each helper; the employer must also instruct each minor that the seatbelts or other restraining devices must be used. This exemption is not applicable to motor-vehicle drivers that tow other vehicles.

The FLSA prohibits the employment of minors in occupations involving certain types of power-driven machinery. For example, woodworking machinery falls into this category and includes all fixed or portable machines or tools driven by power used or designed for cutting, shaping, forming, surfacing, nailing, stapling, wire stitching, fastening, or otherwise assembling, pressing or printing wood or veneer. The operation of power driven metal forming, punching and shearing machines is too dangerous for minors. Work involving the operation of power-driven circular saws, band saws and guillotine shears is also deemed hazardous for minors.

Minors are prohibited from operating power-driven hoisting apparatus such as cranes, derricks, high-lift trucks, or hoists (other than an electric or air operated hoist not exceeding 1-ton capacity). Crane hookers or chasers, hookers-on, riggers or rigger helpers assisting in the operation of a crane, derrick or hoist are also considered hazardous occupations for purposes of child labor laws.

Wrecking and demolition work also qualifies as hazardous occupations. All clean-up and salvage work relating to the razing, demolition, or dismantling of a building, bridge, tower, or other structure is considered too hazardous for minors.

Similarly, excavation work involving trenches more than four feet deep is considered hazardous work as well under the FLSA. Other hazardous excavation work includes working within tunnels and shafts prior to the completion of all driving and shoring operations.

All occupations in roofing operations have been declared hazardous by the Secretary of Labor. This includes all roofing work performed in connection with the application of weatherproofing materials and substances such as tar or pitch, asphalt prepared paper, and shingles. Prohibited roofing work does not include gutter and downspout work, the construction of the sheathing or base of roofs, or the installation of television antennas, air conditioners, exhaust and ventilating equipment, or similar appliances attached to roofs.

Violation of the child labor rules under the FLSA can result in substantial civil and criminal penalties. Employers that commit child labor violations may be subjected to civil monetary penalties of up to $11,000 for each employee that is the subject of a child labor violation. Furthermore, the U.S. Department of Labor (DOL) may seek injunctive relief in federal court to stop the violations. Willful violations of the child labor rules can lead to criminal prosecution, carrying penalties of fines and imprisonment. The DOL is also authorized to file a "hot goods" action in federal court to prevent an employer from shipping any product that was produced in violation of child labor laws.

Adoption of the 18-year minimum age requirement is a fail-safe strategy for eliminating the risk of violating the hazardous occupation prohibitions of child labor laws. Besides eliminating the risk of civil and criminal prosecution, this simple strategy totally eliminates the risk of fatal injuries to minors. The 18-year minimum age requirement not only makes the overall worksite safer for everyone, but it positively impacts an employer's financial bottom line by eliminating the direct and indirect costs associated with on-the-job injuries. These savings will be reflected in employers' costs for various insurance coverage, including health insurance and workers compensation insurance. In Summary, adoption of the FLSA's 18-year minimum age requirement is a win-win proposition for the employer and every employee at the job site.

G. Mark Jodon, a shareholder in the Houston office of Littler Mendelson, the nation's largest employment and labor law firm, and is board certified in labor and employment law by the Texas Board of Legal Specialization. Mark can be reached at (713) 652-4739 or mjodon@littler.com.

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