Considerations for employing teens legally and ethically in Massachusetts

Issue May/June 2017 May 2017 By Daniela Sorokko Harris

School holidays are just around the corner, and many Massachusetts businesses (particularly in the food service and retail industries) are preparing to hire teenagers for the summer. Historically regarded as vulnerable members of the labor market, they are protected by comprehensive federal and state child labor laws that regulate the terms and conditions of their work.

Similar to violations under the Wage Act, employers who violate Massachusetts' child labor laws (codified under M.G.L. c. 149, Sections 56 through 105) are held to a strict liability standard. That means that even if the employer acted in good faith or the minor employee suffered no economic loss or any other discernible injury, an employer that violates a child labor law will incur a civil fine (or even a criminal penalty). The best way to prevent such penalties is to fully understand and comply with child labor laws. Below are 10 topics that employers should be familiar with throughout the hiring and employment process of minors.

When is a minor considered an employee?

In Massachusetts, there is a well-established presumption that anyone who performs services for another, regardless of compensation, is an employee (as opposed to an independent contractor). This presumption extends to minors, who are afforded even greater rights and protections than adult employees with respect to health and safety standards and hourly restrictions.

Under the Fair Labor Standards Act (FLSA), which is the federal law establishing child labor standards, children under the age of 14 may not work. There are, however, a few exceptions to this rule that are applicable to Massachusetts employers, including:

  • Babysitting or performing minor chores around a private home (any age);
  • Delivering newspapers (must be at least 9 years old);
  • Engaging in certain street trades, such as selling magazines, shining shoes, or selling certain merchandise in public spaces (must be at least 12 years old); and
  • Working in the entertainment industry. Employers must apply for a special waiver from the Massachusetts Attorney General, along with a $100 fee, to employ minors who are younger than 16.

How are child labor laws enforced?

Broadly speaking, both federal (FLSA) and state child labor laws apply to employers. However, when these laws conflict, the law that is more protective of minors' rights will be enforced. In most cases, Massachusetts labor laws are stricter than their federal counterparts (the overtime rule for restaurant workers is a notable exception, discussed in question 5).

The U.S. Department of Labor's Wage and Hour Division (WHD) enforces federal child labor laws. Employees may file a complaint by calling the WHD's hotline, sending an email or visiting a local office.

In Massachusetts, the Attorney General's Division of Fair Labor and Business Practices (aka, the Fair Labor Division) enforces state child labor laws. The Fair Labor Division has simplified the complaint process for child labor law violations, allowing anyone to report potential violations of child labor laws using an online form. Even an anonymous complaint may launch an investigation by the Fair Labor Division into a business's employment conditions and payment practices. Inspectors are authorized to visit and inspect businesses that employ minors to determine whether violations exist.

Are certain types of work prohibited for minors?

Yes. For a comprehensive summary of prohibited work activities, please consult the following guide from the Massachusetts Department of Public Health. http://www.mass.gov/eohhs/docs/dph/occupational-health/18-and-under/under18-laws.pdf

As a rule of thumb, minors may never use or be near hazardous machinery, nor may they perform work that is potentially dangerous, such as demolition, construction and some manufacturing activities. In the restaurant and hospitality industry, it is important to remember that minors may not:

  • Serve, handle or sell alcoholic beverages;
  • Operate motor vehicles (with the exception of golf carts in certain circumstances); and
  • If under 16, cook or work near open flames, work with power-driven food slicing equipment, bake, or work in freezers or meat coolers.

What are the restrictions to minors' working hours?

The working hour restrictions vary depending on the employee's age.

16- and 17-year-olds may:

  • Not work before 6 a.m. or after 10 p.m. on school nights (10:15 p.m. if establishment stops serving customers at 10 p.m.).
  • Work until midnight on non-school nights.
  • Not work more than nine hours per day, six days per week or 48 hours per week.

14- and 15-year-olds may:

  • Not work before 7 a.m. or after 7 p.m. during the school year.
  • Work until 9 p.m. from July 1 through Labor Day.
  • Not work more than three hours per day or more than 18 hours per week during school weeks.
  • Not work more than eight hours per day, six days per week, or 40 hours per week, when school is not in session.

Regardless of whether it is a school night, an adult must supervise all minors after 8 p.m. There is a narrow exception for minors who work at a kiosk, cart or a stand in the common area of an enclosed shopping mall that has security after 8 p.m.

Certain exceptions apply in different industries. For example, minors employed on farms, hospital volunteers, and seasonal employees in manufacturing, hotels, and mercantile establishments may be exempt from the hourly restrictions listed above.

Do minimum wage, overtime and unemployment benefits requirements apply to minors?

Although most businesses must compensate minor workers as employees in accordance with federal and state wage laws, there are three narrow exceptions that allow employers to classify a minor worker as an "intern." Workers may be considered interns if they are providing services to fulfill an educational or training program requirement; for a charity; or for a public-sector employer.

Regular employers that do not fall within one of the three exceptions must comply with all federal and state laws pertaining to minimum wage and unemployment insurance benefits. (In Massachusetts, the minimum wage is $11/hour as of Jan. 1, 2017. However, wait staff and service employees may be paid the service rate of $3.75/hour if their average hourly tips, when combined with the service rate, are at least equal to the minimum wage.

Both state and federal laws require employees to be paid the overtime rate of 1.5 times their hourly pay for hours worked beyond 40 hours in a week, unless an exemption applies. Please note that while restaurant workers are exempt from overtime pay under Massachusetts law, they are not exempt under the FLSA. Accordingly, restaurants must pay minors overtime wages if they work more than 40 hours per week. (Keep in mind that only 16- and 17-year-olds are permitted to work more than 40 hours per week, and only up to 48 hours.)

Do minor employees require work permits?

Yes. All minors under the age of 18 must complete an employment permit application and obtain a permit before starting a new job.

Are there any posting requirements?

Employees should ensure compliance with the following posting requirements: employers must post each minor's weekly schedule in a conspicuous location within the minor's work area; the schedule must show the start and stop times for each day of work, total hours worked per day, exact times of meal breaks, and total number of assigned work hours for the week; the schedule may not be changed once the workweek has begun; and employers cannot require minors to work during their scheduled time off.

Are minors eligible for worker's compensation?

The Workers' Compensation Act applies to minors who are injured on the job as it does to adults. However, minors are entitled to double compensation if the employer has violated the child labor laws.

What penalties might employers face for unlawfully employing minors?

The Fair Labor Division may issue a written warning or a civil citation to enforce child labor laws as an alternative to initiating criminal proceedings. Technically, under M.G.L. c. 149, § 78A, the Massachusetts Attorney General also has the authority to initiate criminal proceedings against an employer that induces or permits a minor to work in violation of child labor laws. However, nothing in the attorney general's publications suggests that it has pursued criminal sanctions against such employers in the past. The U.S. Department of Labor can also issue monetary penalties under the FLSA.

The Fair Labor Division recently launched an online database that tracks violations of wage and hour laws, as well as any corresponding fines issued to employers. Between January 2015 and March 2017, of the 596 businesses found in violation of wage and hour laws, 67 received civil citations for violating child labor laws. That's approximately 11 percent of all businesses that were fined in Massachusetts. The fines varied greatly, from $50 to $30,000, and included both restitution payments and civil penalties.

Many businesses were fined for multiple instances of violations of various wage and hour laws. That's an important reason for employers to stay informed of all changes in the labor law landscape - because once the Fair Labor Division launches an investigation into one complaint, it may result in a hefty enforcement action for entirely unrelated violations of wage and hour laws. Interestingly, the Fair Labor Division distinguishes between violations committed with and without specific intent, which presumably affects the ultimate penalty amount.

Below is a list of the highest fines issued for violations of child labor laws from Jan. 1, 2015, through March 28, 2017. Please note that these numbers do not reflect any legal fees that the businesses may have expended during the Fair Labor Division's investigation and settlement process. All five businesses listed below were fined for violating Chapter 149, § 66 (employing a minor outside of permissible work hours), § 67 (allowing a minor to work more than the maximum daily or weekly hours), and/or § 86 (employing a minor without a valid work permit):

  • Donovan Services Inc: In August 2016, this restaurant paid a penalty of $27,500 for violating §§ 66, 67 and 86.
  • Montilio's Bakery: In October 2016, this establishment paid a fine of $14,340 for violating § 86. This business simultaneously paid a fine of $2,760 for non-payment of wages, which is a violation of the Weekly Wage Law.
  • Mass Burgers Sutton, LLC d/b/a/ Five Guys Burgers and Fries: In November 2016, this establishment incurred a $25,000 civil penalty for violating §§ 66, 67 and 86.
  • Charter Food North, LLC d/b/a Taco Bell: In November 2016, this restaurant franchisee paid a $30,000 civil penalty for violating §§ 66, 67 and 86.
  • Boston Total Sugar: In February 2017, this Dedham-based retail business paid $20,000 after it was found in violation of §§ 66, 67 and 86. Likewise, in the same enforcement action, this business incurred a $32,000 fine for failure to furnish records for inspection, violation of earned sick time law, failure to pay overtime wages, and non-payment of wages.

What are some best practices for complying with child labor laws?

It is always prudent to speak with an experienced employment attorney about specific compliance ideas. As to general recommendations, the U.S. Department of Labor has published the following compliance ideas for avoiding workplace injuries and complying with time and hour restrictions:

  1. Different colored vests issued to employees under the age of 18 so that supervisors know who is not allowed to operate certain equipment.
  2. Placing special "warning stickers" on equipment that young workers may not legally operate or clean.
  3. Implement a computerized tracking system to ensure that workers under 16 are not scheduled for too many hours during school weeks.
  4. Issue teens a laminated, pocket-sized "Minor Policy Card" on the first day of work. The card explains the firm's policy and requirements for complying with the youth employment rules, including work hour restrictions.