In the Halsey's view, the Act does not reach this situation because annual gross sales of their fishing enterprise were too small. Their argument fails, for it deals with but one of two jurisdictional tests; the Fair Labor Standards Act protects more than employees of businesses with gross revenues of $500,000 per year. Zorich v. Long Beach Fire Dep't & Ambulance Serv., Inc., 118 F.3d 682, 686 (9th Cir.1997) (interpreting 29 U.S.C. § 206) The Halseys' interpretation of the Act frustrates the longstanding intent of Congress to cover employees based on their individual status, as well as the status of their employers. The Act protects employees in two ways: 1) individually, when they are "engaged in commerce or in the production of goods for commerce," (individual coverage) or 2) through their employer, when they are "employed in an enterprise engaged in commerce or in the production of goods for commerce" (enterprise coverage). 29 U.S.C. § 212(c); Chao v. A-One Medical Services, Inc., No. 02-35158, 2003 WL 22283864, at *3 (9th Cir. Oct. 6, 2003).

   The statutory definition of "enterprise engaged in commerce" brings businesses with annual gross revenues of $500,000 or more within the ambit of the Act. 29 U.S.C. § 203(s)(1)(A)(ii). The Halsey's gross sales volume for 2002 comes nowhere near this, at a little over $12,000. If coverage depended solely on whether the Halseys operated an "enterprise engaged in commerce," this matter would be dismissed.

   "Commerce" as used in the test for individual coverage includes "trade, commerce, transportation, transmission or communication among the several States or between any State and any place outside thereof." 29 U.S.C. § 203(b). Employees who load and unload goods that are in the stream of interstate commerce are engaged in commerce for purposes of the Act. Walling v. Consumers Co., 149 F.2d 626, 629-30 (7th Cir. 1945); Figueroa v. America's Custom Brokers, Inc., 48 F.Supp.2d 1372, 1375 (S.D.Fla. 1999).

   Samuel helped unload fish from the Halsey's vessel as one of his paid duties. Fish he unloaded were sold to Ocean Beauty Seafoods, and then transferred out of Alaska to Seattle, WA. Even viewed in the light most favorable to the Halseys, Samuel engaged in commerce for purposes of the Act, and as a covered individual enjoyed the protection of the child labor provisions.

   As a general matter, children who have not attained the age of 16 may not be employed, and their employment is actionable as a use of "oppressive child labor". Section 3(l) of the Act; 29 C.F.R. § 570.2(a)(1). By exception to this general rule, children between the ages of 14 to 16 may be employed if the Secretary of Labor finds in regulation or by order that employment of these youthful workers will neither interfere with their schooling , nor expose them to conditions that interfere with their health or well-being. 29 C.F.R. §§ 570.2(a)(1)(i); 570.32. The Halseys claim that employment of Samuel was not "oppressive child labor," because in Title 29 C.F.R. Subpart C, the Secretary has authorized employment of minors between 14 and 16 years of age, subject to certain restrictions. 29 C.F.R. § 570.31 .

   The restrictions applicable to employment of 14 to 16 year olds presents the controlling issue in this proceeding. See 29 C.F.R. §§ 570.33 and 570.119. Fourteen year old children may not be employed in occupations involving the transportation of property by water, for the Secretary has declared those occupations to be hazardous. 29 C.F.R. §§ 570.33(f)(2); 570.119(f)(1). The Government emphasizes that Samuel's duties aboard the Halseys' vessel in July 2002 did not come within the exception. What he did is listed among the hazardous occupations forbidden to youthful workers of his age. The Halseys admit that Samuel worked on a vessel that was used to transport fish, including fish Samuel caught, across water. He could not do so at his age, so the employment constituted oppressive child labor. 29 C.F.R. § 570.119.

   The "economic reality" concept is well explained in the lengthy discussion found at 3 Larson's Workers' Compensation Law § 60.04 et seq. It provides a helpful theoretical background for reading decisions that have required courts to characterize individuals as employees or independent contractors. The common law developed the master-servant doctrine to delimit the vicarious liability of a master in tort. The context for those decisions was loss or damage the laborer (whether an employee or contractor) had caused, not injury to that person. Attempts to apply the common law doctrine in other contexts become troublesome, for the test was created for a specific purpose, and rote application elsewhere yields unsatisfactory results. In compensation law, the focus of the Larson treatise, the inquiry into whether a person is an employee or an independent contractor focuses on whether the injured person is entitled to have the cost of the industrial injury borne by the customer as part of the cost of the product or service, or whether it should fall on the laborer alone.

   In this case involving a fatal incident, context plays a role in determining whether the child was an employee or something else. The federal child labor legislation begins with the premise that children require protection, the younger they are, the more protection they receive. Consequently, the labels employer and employee used in the Act and regulations "are broader than the common-law concept of employment and must be interpreted broadly in the light of the mischief to be corrected." 29 C.F.R. § 570.113(a). Young children may not be employed, for their education is paramount; as they grow older they may work for limited periods in places thought safe, given the child's limited experience and capacity for judgment; ultimately they join the work force as adults and lose these special protections. Fourteen year old children do not have the capacity, as a matter of law, to appreciate implications or differences that arise from status as crew members, independent contractors, employees, or any other categories of workers. I seriously doubt whether an unemancipated minor may be an independent contractor. An employer may desire to arrange or characterize the exchange of labor and money that way in order to avoid sharing in liability for Social Security taxes, unemployment taxes, payroll-based premiums for workers' compensation insurance, or for many other reasons. But the very term "independent" is incompatible with the dependent status of a minor, who is legally disabled from entering into a "contract" during minority. Congress and the Secretary brought almost all types of work within the ambit of the Act by the definitions of employment related terms found in 29 U.S.C. § 203 and 29 C.F.R. § 570.113(a).

   Assuming a traditional test applies, courts use several factors to distinguish employees from independent contractors when applying social legislation such as the FLSA. They include: 1) the degree of the alleged employer's right to control the manner in which the work is to be performed; 2) the alleged employee's opportunity for profit or loss depending upon his managerial skill; 3) the alleged employee's investment in equipment or materials required for his task, or his employment of helpers; 4) whether the service rendered requires a special skill; 5) the degree of permanence of the working relationship; and 6) whether the service rendered is an integral part of the alleged employer's business. Real, 603 F.2d at 754; see also United States v. Silk, 331 U.S. 704, 715 (1947). No individual factor is dispositive of whether an employee/employer relationship exists. Real, 603 F.2d at 754. Such a determination depends "upon the circumstances of the whole activity." Rutherford Food Corp. v. McComb, 331 U.S. 722, 730 (1947).

   The Halseys acknowlege that Samuel was hired by Mr. Halsey, that Mr. Halsey decided how much and in what manner Samuel would be paid, and that he assigned Samuel various duties to perform aboard the vessel. The Halseys, not Samuel, owned the vessel and the nets which Samuel helped set to catch fish. They paid for his license to work and supplied him with safety equipment and clothing. Samuel set nets and unloaded fish from their vessel in exchange for value (whether wages or a crew share), duties entwined with the business of catching fish and bringing them to market.

   While the seasonal nature of Samuel's work precludes a finding of permanent employment, the child labor protections precluded permanent employment; the factor weighs differently here than it would in the case of an adult. The Halseys' admission that they hired Samuel to work for them as a bowman in consecutive years suggests the existence of some sort of ongoing relationship. No evidence suggests Samuel's work as a bowman required any specialized skills.

   Taken together with Samuel's age, these facts show that 1) the Halseys had virtually complete control of the manner in which Samuel's work was performed onboard their fishing vessel; 2) Samuel exercised no managerial skills bearing on his opportunities for profit or loss; 3) Samuel had no investment in materials or equipment required for his work; 4) no specialized skills were required for his work; 5) permanence of the relationship is not a significant factor here; and 6) Samuel's services comprised an integral part of the Halsey's fishing enterprise. Samuel was the Halseys' employee for purposes of the Act.

   No genuine issue of material fact remain to be tried on the following matters: 1) Samuel Gammon's employment on the fishing vessel was covered under the child labor provisions of the Fair Labor Standards Act; 2) Samuel's work for the fishing enterprise violated the Act's oppressive child labor provisions and 3) Samuel was an employee for purposes of the Act.

   Summary decision for the Government is entered on those issues. The amount of the civil money penalty to be assessed against the Halseys is the only issue which remains for trial.

      WILLIAM DORSEY
      Administrative Law Judge