Pub. 7 2018-2019 Issue 3

Issue 2. 2019 17 Hey, DOL—Leave Those Kids Alone! Before the outcome of this scenario is revealed, let’s talk about child labor. The federal child labor laws were enacted to ensure that when young people work, the work they perform is safe and does not jeopardize their health, well-being, or educational opportunities. These laws establish 16 as the basic minimum age for employment, but where the Secretary of Labor has determined that an occupation is particularly hazardous, then the minimum age for employment is 18 unless otherwise specified. The Secretary of Labor communicates these determinations through Hazardous Occupations Orders (HOs). To date, there are 17 HOs that apply to non-agricultural employers on either an industry basis or an occupational basis (regardless of the industry). For instance, HO 2 mandates that no person under the age of 17 may drive automobiles on public roads as part of their employment, and even then, 17-year-olds must meet several requirements (e.g., that the drivingmust occur during daylight hours). There are also additional child labor regulations that provide stricter protections to minors aged 14 and 15. If an HO or a child labor regulation applies, the employer must abide by its restrictions. To do otherwise could result in a sizeable penalty. Going back to our scenario, Ivan contended that Adam’s employment constituted a violation because “minors may not work in or around pits, racks or lifting apparatus servicing motor vehicles” – all components of the dealership’s Lube Express. Fortunately, the dealership’s attorney knew that this limitation only applied to 14- and 15-year old workers. The attorney also knew that no HO applied to the typical duties of a Lube Tech. Finally, no state law prohibited a 17-year old fromworking in this position in the dealership’s state. As a result, the dealership lawfully employed Adam in its Lube Express, it was argued. After some figurative arm-twisting, Ivan reluctantly agreed. How To Achieve The Same Result At Your Dealership While things ultimately resolved in the dealership’s favor in this scenario, things may have been different if the investigator’s conclusion had not been challenged. Even so, several lessons can be learned: • If you are going to employ a minor, ensure no child labor regulation or HO applies to the work the minor is to perform. For instance, 16-year olds should never drive cars off the lot. • Under no circumstances should a dealership employ a minor under age of 14 (unless perhaps the minor is the principal’s child). But the safest course may be to only hire applicants above the age of 18. • If a dealership employs anyone under the age of 18, it must maintain a certificate of age that includes the minor’s name, address, date of birth, place of birth, signature, and sex (e.g., a driver’s license photograph) for a period of three years following theminor’s separation fromemployment. DOL audits often open unexpected cans of worms. So, in addition to following the best practices itemized above, it may also be prudent to conduct an internal audit of your employment practices before the government comes knocking. If you have specific questions on how to address the employment of minors, how to prepare for a DOL audit or how to conduct an internal audit, contact your labor attorney, or feel free to contact any member of the Fisher Phillips Automotive Dealership Practice Group. Before the outcome of this scenario is revealed, let’s talk about child labor. The federal child labor laws were enacted to ensure that when young people work, the work they perform is safe and does not jeopardize their health, well-being, or educational opportunities. Reprinted with permission from the author and Fisher Phillips.