I. INTRODUCTION
During the school year, but particularly when school is dismissed for summer, the bank may be considering the employment of minors for jobs in the bank. Bankers should be aware that there are both Nebraska laws and federal laws addressing the employment of minors and the kind of work they may perform. In addition, the laws regarding minimum wage and overtime pay provisions apply to minors in the same manner as adults.
NOTE: Nebraska law considers a minor to be any person under 19 years of age who has not been emancipated by marriage.
The following article is a general review of both state and federal laws and regulations dealing with “child labor.” Note that federal law will differ from state law. To the extent that federal regulations are more restrictive than state law, federal restrictions will control. Otherwise, if state regulation is more restrictive than federal regulations, state law will control.
II. FEDERAL LAWS AND REGULATIONS
A. Ages Between 14 and 16
The “Fair Labor Standards Act” (FLSA) is the federal law that regulates the employment of minors. In general, the FLSA provides that the employment of any minor under the age of 14 is “oppressive child labor” and under the age of 16 is “oppressive child labor” unless expressly permitted by the U.S. Secretary of Labor. Children between 14 and 16 years of ages are also prohibited in engaging in listed occupations by the Secretary of Labor.
Prohibited occupations for children between 14 and 16 years of age are the following: manufacturing; mining; processing; operation or tending of hoisting apparatus or power-driving machinery other than office machines; operation of motor vehicles or helping drivers of motor vehicles; public messenger service; and with specific office and sales exceptions, transportation, warehousing and storage, communications, public utilities and construction, including demolition and repair. FLSA regulations also bar children under age 16 to engage in occupations declared “hazardous” for children between ages 16 and 18.
Permitted occupations for children between 14 and 16 years of age include: office and clerical; cashiering; selling; modeling; art work; window trimming; comparative shopping; price marking and tagging; bagging and carrying customer orders; errand and delivery by foot, bicycle and public transportation; clean-up (excepting power-driven mowers and cutters); certain kitchen and food preparation and service; dispensing gasoline and oil; cleaning, washing and polishing cars (excepting pits, racks, lifting apparatus or inflation of tires mounted on rims equipped with removable retaining rings); cleaning, packaging, pricing and stocking fruits, vegetables and certain other goods under certain conditions.
The permitted occupations list is further tempered by regulations restricting the setting of such employment, including: work done in boiler rooms; maintenance and repair of establishments, machines or equipment; outside window washing which involves working from a sill, ladder or scaffold; certain cooking and baking; work with power-driven food slicers, mixers or grinders; work in freezers or meat coolers; loading or unloading goods to or from trucks; and work in warehouses, other than office or clerical.
The number of hours and times of day for minors between ages 14 and 16 are also restricted by FLSA regulations. When school is in session, such children may only work outside of school hours and may work no greater than 18 hours per week and three hours per day. If school is not in session, such children may work no greater than 40 hours per week and eight hours per day. Work may be performed between the hours of 7:00 a.m. and 7:00 p.m., except between June 1 through Labor Day when the evening hours are extended to 9:00 p.m.
Employers must obtain and retain in its files appropriate state or federal certificates verifying that each employed minor is between ages 14 and 16.
When work involves a school-supervised and administered work-study program that meets regulatory requirements and is properly certified with appropriate written consents, exceptions to the above-described regulations may be made.
B. Ages Between 16 and 18
The FLSA does not permit minors between 16 and 18 years of age to work in any occupation declared by the Secretary of Labor to be “particularly hazardous” or “detrimental to the health or well-being.” When no declaration has been issued, employment of minors aged 16 or over is allowed. NOTE: These rules differ from those applicable to minors between ages 14 and 16 wherein they may not perform any work unless expressly approved by the Secretary of Labor. Occupations defined to be “particularly hazardous” or “detrimental to the health or well-being” are generally the following: involving explosives or articles containing explosive components; motor vehicle driver and driver helper; coal and other mining; logging or involving sawmills or other mills; power-driven woodworking machines, hoisting apparatuses, metal-forming, punching or shearing machines; radioactive substance exposure; meat-packing, processing or rendering; bakery machines; paper product machines; manufacturing of brick, tile and related products; circular saws, band saws or guillotine shears; wrecking, demolition or ship-breaking; roofing; and excavating.
The FLSA does contain specific exemptions for minors employed in agriculture, newspaper delivery, entertainment and certain other listed occupations. Employers must obtain and retain in its files appropriate state or federal certificates verifying that each employed minor is between ages 16 and 18.
C. Do Not Overlook Obvious – Operation of Motor Vehicle by Minor
Although many of the occupations listed above are not applicable to banks and their employment of minors, an administrative ruling addressing the operation of a motor vehicle by a minor gained the attention of many bankers. The FLSA prohibits employment of minors between 16 and 18 years of age as motor vehicle drivers except on those occasions when the driving is “occasional and incidental” to the minor’s occupation. A regional Wage-Hour Office decided, pursuant to its enforcement authority under the FLSA, that a bank violated child labor laws by permitting a 17 year old to drive a bank car under limited situations. An administrative judge eventually ruled that the driving activity fell within the “occasional and incidental” driving exemption. The case illustrates that a bank must pay particular attention to not only the time and place of work, but the work duties and how such duties relate to the overall employment situation of the minor.
III. NEBRASKALAW
Minors under 16 years of age may not be employed unless the employer obtains and retains on file an employment certificate for each child. In addition, the employer must maintain two lists of all minors employed – one list on file and the other list conspicuously posted near the principal entrance of the establishment where the minors are employed. If employment is terminated, the minor’s employment certificate must be forwarded by the employer to the superintendent of schools of the county in which the child resides. A copy of the certificate must be given to the minor upon demand.
Minors under 16 may not work more than 48 hours per week or eight hours per day. When a minor is under age 14, employment is not allowed before 6:00 a.m. or after 8:00 p.m. Between the ages of 14 and 16, employment is not allowed before 6:00 a.m. or after 10:00 p.m. The 10:00 p.m. cut-off hour may be extended by an endorsement on the employment certificate of the minor under the following conditions: no school is scheduled the following day; the minor consents to the extension by signing the endorsement; and the employer has obtained a special permit from the Nebraska Department of Labor. The employer is required to conspicuously post in every room where each minor works, the starting and stopping times of each minor and the minor’s mealtimes.
Nebraska law also prohibits the employment of children under age 16 for work which, by reason of its nature or place of performance, is dangerous to life or limb or of which his or her health may be injured or morals may be depraved. Recall that the FLSA prohibits employment of minors under age 16 unless listed as a permissible occupation allowed by the Labor Department.
NOTE: Nebraskalaw does not specifically regulate the employment of minors age 16 or older. Keep in mind that federal law prohibits employment, with very limited exceptions, of minors between ages 16 and 18 in work specifically listed by the Labor Department as particularly hazardous or detrimental.
IV. HELPFUL REFERENCES
There are several compliance assistance materials (posters, fact sheets and employer’s guides) available from the federal Website: www.youthrules.dol.gov and the Nebraska Website: www.dol.nebraska.gov/.