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The Young and the Hirable
Putting a teen on the payroll? Get familiar with child labor laws first.
This month’s hypothetical story begins in Bristol, Tennessee, site of the Bristol Motor Speedway, one of NASCAR’s most popular venues. Margie, one of Bristol’s residents, has called the town her home for the better part of two decades. She owns three day spas here, but there’s a twist: Bristol is one of those few U.S. cities that span more than one state. So, two of Margie’s spas are located in Bristol, Tennessee—population 25,000—and one is in Bristol, Virginia, population 18,000. Serving a combined population of only 43,000, Margie’s successful mini-chain represents quite an achievement. Feeding that success is the fact that, during March and August, NASCAR fans swell the population to over a quarter-million. And everyone knows those NASCAR ladies love their nail services.
It just so happened that one day, Blanche, one of Margie’s best customers, came in for an aromatherapy pedicure. Chatting with Margie at the front desk, Blanche mentioned that her 16-year-old daughter, Denise, didn’t have a job for the summer. The two women’s daughters were friends, and Margie knew Denise to be a reliable and sensible kid. So Margie, having just lost her go-fer/driver—a key position for a business that runs three locations in a compact area—suggested to Blanche that Denise, a licensed driver, give her a call.
Denise came in for an interview and Margie hired her on the spot. Now Denise would earn some money over the summer and Margie would have some new help, plus brownie points for having pleased a loyal client. The only problem was that Margie had just violated a federal law.
Hence we come to the crux of our story: A spa owner must understand the rules when hiring people under the age of 18. Failure to know and apply these rules may result in a violation of child labor laws.
Rage Against the Machine
Child labor laws were created in response to a time when there were no restrictions on what kinds of jobs children could do or limitations on how many hours they could work. In the late 1700s in the U.S., there was a proliferation of factories that housed various kinds of power-driven machinery that did not require an adult level of strength to operate. Children were used as a source of cheap labor to operate this dangerous machinery. This unconscionable situation reached a peak the mid-1800s, with kids working up to 18 hours per day in stifling hot or freezing cold environments.
Today, thanks to child labor laws, children are prohibited from operating dangerous machinery such as power-driven metal-forming, punching and shearing machines; most forms of wood-working machines; and power-driven meat processing machinery.
What does this have to do with spa owner Margie and her 16-year-old new hire? It isn’t like Margie asked Denise to operate any dangerous machines, right? Wrong, says the U.S. Department of Labor. Studies have shown that the most dangerous machine a child operates in the work environment today is the automobile. The fact that Denise has a driver’s license from the State of Tennessee means virtually nothing in a child labor context. Here we are dealing with federal law, and that law is clear: No employee under the age of 17 can drive an automobile as part of his or her job if that job falls under the Fair Labor Standards Act (FLSA).
How can Margie know if she as an employer is subject to the FLSA? She needs to ask herself two questions: 1) “Does my spa business generate $500,000 or more in annual dollar volume?” and, 2) “Am I involved in interstate commerce?”
For Margie, the answer to the first question was yes. As for the second question, it would seem to be another yes, because Margie operates businesses in two different states. So she’s an easy example for this article, right? Not so fast. Yes, Margie is involved in interstate commerce—but not necessarily because she has spas in two states. The truth is, almost every spa owner is involved in interstate commerce—even the single-location owner who doesn’t even have a website.
Not Just Chicken Feed
Through a series of Supreme Court decisions, it has been determined that almost every activity impacts interstate commerce. The Interstate Commerce Clause of the U.S. Constitution, which appears as Article 1, Section 8, states that Congress has the power to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes. The seminal case that established that the Federal government may regulate almost all economic activity was Wickard v. Fillburn, decided in 1942. Roscoe Fillburn was a farmer who grew wheat for consumption on his own farm only. Previously, in order to keep wheat prices high during the Depression, Congress had passed laws that limited the amount of wheat that farmers could grow per acre. Fillburn exceeded the allowable amount of wheat per acre, and he was fined and ordered to destroy much of his crop. The Supreme Court said Congress had the power to fine Fillburn under the Interstate Commerce Clause.
How can a farmer who is growing wheat for consumption on his own farm (for use as chicken feed, in this case) have any effect on commerce between the states? The Court reasoned that, because Fillburn grew his own chicken feed, this reduced the amount of wheat that he would purchase on the open market. And, since chicken feed was traded nationally, Fillburn’s “overproduction” affected commerce across the country. (There’s more to it than this, but I’ve chosen not to go beyond the scope of our purposes for this article. However, if you’d like to learn more, visit Wikipedia.)
In any event, if the Court found that Roscoe Fillburn’s chicken feed growing affected interstate commerce, you can be sure that the Court could see some way in which the activities of a modern day spa does the same. So, even if Margie didn’t operate businesses located in two states, she would be considered involved in interstate commerce and fall under the FLSA. Therefore, Margie has violated federal law by allowing Denise to drive for work purposes.
It’s a New Age
Suppose Margie’s potentially illegal hire, 16-year-old Denise, is about to turn 17? Would Margie be off the hook? Maybe. The law says that a person 17 years of age can drive on the public roadway as part of their employment if:
• The driving is limited to daylight hours;
• The 17-year-old holds a state license valid for the type of driving involved in the job performed;
• The 17-year-old has successfully completed a state-approved driver education course and has no record of any moving violations at the time of hire;
• The automobile or truck does not exceed 6,000 pounds gross vehicle weight;
• The automobile or truck is equipped with a seat belt for the driver and any passengers and the employer has instructed the youth that the seat belts must be used when driving the vehicle; and
• The driving is only occasional and incidental to the 17-year-old’s employment. This means that the youth may spend no more than one-third of his or her workday and no more than 20% of his or her work time in any workweek driving.
No employee under the age of 17 can drive an automobile as part of his or her job if that job falls under the Fair Labor Standards Act (FLSA).
Of course, the “no driving at all” rule is much easier to follow. In Denise’s case, it was unclear as to whether Tennessee even offered the “delivery driver” type of license that Denise would have to have. And Margie didn’t want to have to figure out how much of Denise’s work week was spent driving. So she gave up and moved Denise to the stock room. (This is actually the advice I give my clients. If you need someone to drive, just hire someone who is 18. Yes, it’s the easy way but it’s also the safest way, especially for clients whom I know won’t pay attention to the rules.)
But our story doesn’t end there. On Margie’s instruction, Denise rotated between spa stockrooms in the Tennessee locations and that of the Virginia spa. Things were going so well, that come September, Denise asked if she could work at the spas part-time during the school year. She had a light semester and wanted to keep her weekends free so she asked if she could work Monday, Wednesday and Friday evenings from 6 p.m. to 11 p.m. Happy to have the continued help, Margie agreed, gave Denise a key and the matter was settled.
Then one day Margie received a visit from a representative of the Tennessee Department of Labor. Turns out that Denise had looked particularly tired one day in class and was asked about it by an attentive teacher. Denise told the teacher about her work schedule at the spas. The teacher, familiar with child labor laws in Tennessee, called the heat.
In Tennessee, 17-year-olds cannot work after 10 p.m. on any Sunday through Thursday evening that precedes a school day. Margie was busted and, much like Roscoe Fillburn, fined. (Fortunately, the state of Tennessee did not require that Denise be destroyed.)
This puts a sharp point on the fact that employers need to understand they operate under both federal and state laws. What would have happened if Denise lived in Virginia and was working only in the Virginia store? Nothing, as it turns out—in Virginia there are no restrictions on the hours that any 16- or 17-year-old may work. And what about federal law? You are safe. Working hours for that age range mirror those of Virginia.
However, the rules regarding working hours change dramatically for 14- and 15-year-olds under both federal and state law. But frankly, if you’re an employer who’s seriously thinking about hiring a 14- or 15-year-old, you need to consult with someone. And I don’t mean a lawyer.
DAYSPA advisory board member Michael L. Antoline is a legal affairs writer and attorney in Champaign, Illinois. Information in this column is general. Seek legal counsel for specific cases.
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