|
- Employment Law Guide A Companion to the FirstStep Employment Law Advisor |
Wages and Hours Worked: Child Labor Protections (Agricultural Work)
Updated: September 2009
Fair
Labor Standards Act of 1938 (FLSA), as amended (PDF)(http://www.dol.gov/whd/regs/statutes/FairLaborStandAct.pdf) Who is CoveredThe child labor provisions of the Fair Labor Standards Act (FLSA) are administered by the Wage and Hour Division (WHD). These provisions are designed to protect the educational opportunities of minors and to prohibit their employment in jobs and under conditions detrimental to their health and well-being. The FLSA establishes minimum age for covered employment in agriculture unless a specific exemption is applicable. Employees of farms are subject to FLSA’s child labor provisions if they are individually engaged in interstate commerce or in the production of goods for interstate commerce. An employee will be deemed to have been engaged in the production of goods if such employee was employed in producing, manufacturing, mining, handling, transporting, or in any other way working on such goods, or in any closely related process or occupation directly essential to its production. The child labor provisions applicable to nonagricultural employment are discussed elsewhere in this Guide. In addition, all employees of a farm are covered under the FLSA on an enterprise basis if the annual gross volume of sales made or business done by the enterprise that owns the farm is not less than $500,000 and the enterprise employs workers engaged in commerce, or the production of goods for commerce, or who handle goods that have moved in commerce. Such covered employees include workers employed directly by the farmer, or by a covered contractor hired by the farmer, who: cultivate the soil or grow or harvest crops; raise livestock, bees, fur-bearing animals, or poultry; perform work which is incidental to the farming operations of that farm (such as threshing grain grown on that farm), or work off the farm as employees of the farmer performing work which is incidental to the farming operations of that farm (such as delivering produce to market by truck). Basic Provisions/RequirementsThe child labor provisions of the Act set standards for youth employed in agriculture. These same standards set forth several hazardous occupations orders for jobs that the Secretary has declared to be too dangerous for those under the age of 16. The permissible jobs, by age, in farm work are as follows:
Detailed information on the occupations determined to be hazardous by the Secretary is available from a local Wage and Hour Division office(http://www.dol.gov/whd/america2.htm) and in subpart E-1 of Regulations, 29 CFR Part 570(http://www.dol.gov/dol/cfr/Title_29/). By regulation, employers must keep records of the dates of birth of employees under age 19, their daily starting and quitting times, their daily and weekly hours of work, and their occupations. Employee RightsThe FLSA also gives an employee the right to file a complaint with the Wage and Hour Division and testify or in other ways cooperate with an investigation or legal proceeding without being fined or discriminated against in any other matter. Recordkeeping, Reporting, Notices and PostersNotices and PostersEvery employer of employees subject to the FLSA’s minimum wage provisions must post, and keep posted, a notice(http://www.dol.gov/whd/regs/compliance/posters/flsa.htm) explaining the Act in a conspicuous place in all of their establishments. Although there is no size requirement for the poster, employees must be able to readily read it. The FLSA poster is also available in Spanish(http://www.dol.gov/whd/regs/compliance/posters/flsaspan.htm), Chinese(http://www.dol.gov/whd/regs/compliance/posters/minwagecn.pdf), Russian(http://www.dol.gov/whd/regs/compliance/posters/FLSAPosterRuss.pdf), Thai,(http://www.dol.gov/whd/regs/compliance/posters/MinWageThai.pdf) Hmong,(http://www.dol.gov/whd/regs/compliance/posters/MinWageHmong.pdf) Vietnamese(http://www.dol.gov/whd/regs/compliance/posters/minwageViet.pdf), and Korean(http://www.dol.gov/whd/regs/compliance/posters/minwageKorean.pdf). There is no requirement to post the poster in languages other than English(http://www.dol.gov/whd/regs/compliance/posters/flsa.htm). RecordkeepingEvery employer covered by the Fair Labor Standards Act (FLSA) must keep certain records for each covered(http://www.dol.gov/elaws/esa/flsa/overtime/glossary.htm?wd=covered), nonexempt (http://www.dol.gov/elaws/esa/flsa/overtime/glossary.htm?wd=non_exempt)worker. There is no required form for the records. However, the records must include accurate information about the employee and data about the hours worked and the wages earned. The following is a listing of the basic payroll records that an employer must maintain:
For a full listing of the basic records that an employer must maintain, see the Wage and Hour Division Fact Sheet #21: Recordkeeping Requirements Under the FLSA(http://www.dol.gov/whd/regs/compliance/whdfs21.pdf). Employers are required to preserve for at least three years payroll records, collective bargaining agreements, and sales and purchase records. Records on which wage computations are based should be retained for two years. These include time cards and piecework tickets, wage rate tables, work and time schedules, and records of additions to or deductions from wages. ReportingThe FLSA does not contain any specific reporting requirements; however, the above referenced records must be open for inspection by the Wage and Hour Division’s representatives, who may ask the employer to make extensions, computations, or transcriptions. The records may be kept at the place of employment or in a central records office. Penalties/SanctionsThe Act prohibits the interstate shipment of goods produced in violation of the child labor provisions. It is also a violation of the Act to fire or in any other manner discriminate against an employee for filing a complaint or for participating in a legal proceeding under the Act. Employers are subject to a civil money penalty of up to $11,000 per worker for each violation of the child labor provisions. In addition, employers are subject to a civil money penalty of $50,000 for each violation occurring after May 20, 2008, that causes the death or serious injury of any minor employee—such penalties may be doubled, up to $100,000, when the violations are determined to be willful or repeated. When a civil money penalty is assessed, employers have the right to file an exception to the determination within 15 days of receipt of the notice of such penalty. When an exception is filed, it is referred to an Administrative Law Judge for a hearing and determination as to whether the penalty is appropriate. Either party may appeal the decision of the Administrative Law Judge to the Secretary of Labor. If an exception is not filed within the 15 days, the penalty becomes final. The Act also provides for a criminal fine of up to $10,000 upon conviction for a willful violation. For a second conviction for a willful violation, the Act provides for a fine of not more than $10,000 and imprisonment for up to six months, or both. The Secretary may also bring suit to obtain injunctions to restrain persons from violating the Act. Relation to State, Local, and Other Federal LawsMany states have child labor laws. When both this Act and a state law apply, the law setting the higher standards must be observed. Compliance Assistance AvailableThe Department of Labor provides employers, workers, and others with clear and easy-to-access information and assistance on how to comply with the FLSA. Among the many resources available are:
Additional compliance assistance, including explanatory brochures, fact sheets, and regulatory and interpretive materials, is available on the Compliance Assistance “By Law”(http://www.dol.gov/compliance/laws/comp-flsa.htm) Web page and the Wage and Hour Division Home Page(http://www.dol.gov/whd). DOL ContactsWage and Hour Division(http://www.dol.gov/whd/)
|
|||||||||||||