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    Don’t Get Burned When Hiring Minors

  • Follow these guidelines to stay in the clear.

    pexels/Valeria Boltneva
    es An employer can get burned very badly if it fails to adhere to the minimum labor standards imposed by the FLSA

    Minors (individuals below the age of 18) are a vital and key asset to any quick-service restaurant. However, an employer can quickly get burned with stiff penalties if it does not follow a handful of additional state and federal rules that govern the employment of minors with respect to work permits, wages, hours of work, and various work restrictions.

    Work Permits

    Except in extremely limited situations, most states require minors to have a work permit or age certification before they can start working (even when school is not in session). See https://www.dol.gov/whd/state/certification.htm for state specific certification requirements.  In typical circumstances, after an employer agrees to hire a minor, the minor then obtains from his or her school a form provided by the state (e.g., in California, it is entitled “Statement of Intent to Employ Minor and Request for Work Permit”) that must be completed by the minor and the employer. The minor is then required to turn in the completed and signed application to their school, who will then issue the permit with any necessary work restrictions.

    It is worth noting, that the work permit or age certification expires in most states before the commencement of the following school year; therefore, a new work permit or age certification must be obtained at the beginning of each school year until the minor turns 18 or graduates from high school.

    An employer must always keep the work permit or age certification on file. 

    Wages

    As a general rule of thumb, minors must be paid at least the statutory minimum wage for all hours worked. There is one main exception to payment of minimum wage to minors under the Fair Labor and Standards Act (FLSA)—the “opportunity wage.” The “opportunity wage” permits an employer to pay a minor $4.25 per hour during their first consecutive 90 calendar days of employment. An employer may only pay a minor an “opportunity wage” if the employment of the minor is eligible for payment of such subminimum wage under both federal and local laws.  See https://www.dol.gov/whd/minwage/america.htm for a listing of state specific minimum wage laws to determine if a minor may be paid an “opportunity wage” for their first consecutive 90 calendar days of employment.

    Hours of Work

    The US Department of Labor (via the FLSA) has established the minimum labor standards for the hours during which a minor may work and when such minor may work dependent on their age. 

    14- and 15-Year-Olds

    Fourteen- and 15-year-old employees may not be employed (one) during school hours; (two) before 7 am or after 7 pm (except June 1 through Labor Day when the evening hour is extended to 9 pm); (three) more than three hours a day on a school day; (four) more than eight hours on a non-school day; (five) more than 18 hours in a week during a school week; and (six) more than 40 hours a week during non-school weeks.

    16- and 17-Year-Olds

    While the FLSA places strict limitations on when and for how long 14- and 15-year-old employees may work, the FLSA does not place similar limitations on 16- and 17-year-old employees. That said, several states impose limitations on when and for how long 16- and 17-year-old employees may work. For example, Massachusetts only permits 16- and 17-year-old employees to work between 6 am and 10 am on a school day (or day preceding a school day) and limits these employees to 48 hours per week. See https://www.dol.gov/whd/state/nonfarm.htm for state specific hours of work limitations.   Accordingly, it is imperative that an employer check the standards of employment within each state that they operate to ensure that they are complying with both federal and state laws with regards to employment of minors. 

    Occupational Restrictions

    In addition to the temporal work limitations placed upon minors by the FLSA and various state laws, the FLSA further limits minors in the type of work they may perform.

    14- and 15-Year-Olds

    Within the quick service restaurant environment, 14- and 15-year-old employees may operate dishwashers; toasters; dumbwaiters; popcorn poppers; milk shake blenders; coffee grinders and automatic coffee machines; and devices used to maintain the temperature of food such as warmers, heat lamps or steam tables and microwaves to warm food as long as the microwave does not have the capacity to exceed 140 degrees Fahrenheit. They may also clean kitchen equipment, including removing oil or grease filters, pouring oil or grease filters into receptacles and moving receptacles containing oil and grease, as long as the equipment, surfaces or containers do not exceed 100 degrees Fahrenheit.

    Fourteen- and 15-year-old employees, however, may not participate in any cooking that involves cooking over an open flame; cooking with deep fat fryers that utilize devices that automatically lower and raise the baskets into and out of the oil/grease; cooking with rotisseries, broilers, pressurized equipment; and cooking with devices that operate at extremely high temperatures, such as “Neico broilers.” They also may not work with power-driven food slicers, grinders, choppers, cutters or mixers.

    16- and 17-Year-Olds

    Unlike 14- and 15-year-olds, 16- and 17-year-olds may perform any task within a quick service restaurant with the exception of baking machines or power-driven meat processing machines.

    Penalties

    An employer can get burned very badly if it fails to adhere to the minimum labor standards imposed by the FLSA. The penalties start at $12,845 per violation and can increase up to over $100,000. 

    Tyler J. Woods is a partner in the Irvine, California office of labor and employment law firm Fisher Phillips. He represents employers in all facets of employment law matters. He may be reached at twoods@fisherphillips.com.