Editor’s note: This is the first in a new series where we’ll ask Courtney Leyes and Emily Litzinger, employment lawyers at Fisher Phillips, employment law questions specific to the restaurant industry.
Today's question: With recent labor shortages we have been somewhat forced to dip into a younger pool of employee applicants. Is there anything we need to be aware of before hiring minors?
The Department of Labor Wage and Hour Division has recently vowed to focus enforcement efforts on child labor law compliance. Democrats and safety organizations have pushed the Department of Labor to take further steps to make current regulations stricter. While the Biden administration does not seem to have the capacity to execute on such rulemaking, QSR employers which rely heavily on workers under the age of 18—are facing a unique challenge ensuring compliance.
Generally, the fluctuations of child labor violations tend to parallel the state of the labor market and demand for workers. With the labor shortage uniquely hitting the quick-service restaurant world, and the need to hire minors, these businesses are more likely to be out of compliance and the DOL knows it. In 2022, there were 835 cases involving child labor violations and 3,876 minors employed in violation of child labor laws, an increase from 747 cases and 2,819 minors in 2021.
Recent audits have revealed most violations relate to the more expansive law protecting the youngest workers: 14- and 15-year-olds. Restaurants often are unknowingly violating the law when minors are working in the early morning or late evening, or exceeding the daily hourly limit on school days.
For 16- and 17-year-old minors, federal regulations are less strict and do not limit the number of hours these minors can work (provided that the occupation has not been declared hazardous by the Secretary of Labor). States and localities, however, provide more expansive coverage for minors and limit hours and time frames that 16- and 17-year old minors can work. Several states also require employment certification or permits when employing minors.
Primer On Federal Child Labor Laws
Though the law is not new, here is a quick federal labor law refresher for employing minors.
Under 14 Years Old
Do not employ unless the employment fits under a prescribed exception.
14- And 15-Year-Old Minors
These minors can perform certain tasks in your hospitality business, including cashiering, table service, busing, clean-up, and food and beverage preparation. However, they may not operate broilers, rotisseries, pressure cookers, high-speed ovens, or rapid toasters. Moreover, you must restrict their work to the following limits:
- Must be outside school hours;
- No more than three hours on a school day;
- No more than eight hours on a non-school day;
- No more than 18 hours a week when school is in session;
- No more than 40 hours a week when school is not in session; and
- Between 7 a.m. and 7 p.m., except from June 1 through Labor Day, when nighttime work hours are extended to 9 p.m.
16- And 17-Year-Old Minors
Children in this age range may be employed for unlimited hours in any occupation other than those declared hazardous by the Secretary of Labor (i.e., meat slicers, saws, commercial mixers, etc.). Moreover, they cannot operate motor vehicles involving time sensitive deliveries (i.e. pizza deliveries).
What Should You Do?
There is no easy, one-size-fits-all solution to employing minors in the hospitality industry, especially because most states and many localities provide for more expansive regulation of minors. And the consequences of violations can be steep: penalties for federal child labor violations can be quite substantial, with up to $10,000 for each employee who was subject to a violation.
To avoid liability, many employers have ceased employing minors under the age of 16 because of the administrative burden of complying with the intricacies relating to this age group. Other employers require separate uniforms for minors and institute managerial checks during the evening shifts to ensure compliance.
A key step toward ensuring compliance is maintaining a clear policy relating to your employment of minors, including detailed managerial training and regular internal auditing. Catching non-compliance before the Department of Labor knocks at your door may save your business from some unintended attention and unwelcome expense.
Courtney Leyes and Emily Litzinger are employment lawyers at Fisher Phillips where they regularly partner with restaurant industry clients to minimize liability and reduce risk with preventative strategies focused on compliance, training, and the implementation of best practices. Having both worked in the industry, they understand the delicate balance restaurant employers face when managing a diverse and ever-changing workforce in today’s complex legal landscape.