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05/31/2023

Your Guide to Bringing Aboard Minors, Interns and Volunteers this Summer

Source: Fisher Phillips, May 26, 2023

Employers are keenly aware that the labor market is very tight, and you’re likely struggling to find talent. As summer approaches and many employers move into their busiest season, you may be looking at creative staffing options you haven’t considered in the past, including hiring teen workers, creating internship programs, and offering volunteer opportunities. If those may be viable options for your organization, there are a host of potential compliance pitfalls that you need to consider. Here is a guide to bringing aboard minors, interns, and volunteers this summer.

Employing Minors

Both federal and state laws restrict the time of day and number of hours that minors can work, the type of work that minors can perform, and the equipment they can use. The Fair Labor Standards Act (FLSA) is the federal law that governs child labor, and the Department of Labor’s Wage and Hour Division (WHD) is the agency charged with its enforcement. The FLSA allows states to enact more restrictive child labor laws, so you must be aware of any local restrictions as well. In situations where the federal law and state law differ, you must follow the law that provides the most protection for the minor.

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Work Permits/Age Certificates

Work permits and age certificates are not required under the FLSA, but many states require them for workers of certain ages. Work permits are usually issued by the local school authority or the state labor department. States that have work permit requirements generally require employers to review the work permit documentation before hiring a minor. 

Some states require that you obtain an age certificate before hiring a minor. These are typically issued by the states in which the minor works, but DOL will issue age certificates if the minor employee’s state does not. A valid, unexpired federal certificate of age or a certificate issued by a state designated by DOL provides proof that a minor is at least the minimum age to work in a particular occupation and it may provide a defense to a claim for child labor violations. 

Meal and Rest Breaks

In addition to the days and hours of employment requirements, you must also comply with applicable state law obligations related to meal and rest breaks. These generally include provisions on the number of meal and/or rest breaks that must be provided, when they should be provided, and how long they should last. While the FLSA does not require meal or rest breaks, the regulations require that rest breaks lasting from 5 to 20 minutes must be paid. Meal periods of 30 minutes or more, which are continuous and uninterrupted, may be unpaid.   

Postings

Employers who hire minors may be required to display additional postings. Federal law requires FLSA-covered employers to conspicuously post the “Employee Rights Under the Fair Labor Standards Act” poster, which includes information related to child labor. Some states have their own separate child labor posters and may also require you to post age-related permits or certificates, a list of the minors employed, or their meal and rest breaks.

Creating Internship Programs

You may also be considering internship programs to help alleviate your staffing woes. The National Association of Colleges and Employers reported that employers expect to boost their intern hiring by over 22% for the academic year that is wrapping up this summer. However, be careful not to think that internships are a ready-made solution to help you fill open roles or otherwise replace departed employees, as they are not necessarily like-for-like replacements for your paid employees.

As a general rule, the FLSA requires “for-profit” employers to pay employees for work. In some instances, however, interns and students may not be considered “employees” and therefore may not be entitled to compensation.

To determine whether an employment relationship exists between and employer and an intern, courts examine the “economic reality” of the relationship to see which party is the “primary beneficiary” of the relationship. If the employer is the primary beneficiary, the intern must be paid. If the intern is the primary beneficiary, the intern may be unpaid.

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