Minor adjustments

If your pizzeria employs anyone under theage of 18, become aware of your responsibilitiesunder federal and state labor andemployment laws that protect minor employees.The U.S. Department of Labor(DOL) has made child labor regulationsa top priority, aggressively investigatingand seeking penalties for violationsinvolving minors working too manyhours, starting work too early, workingtoo late, or performing hazardous work.The Equal Employment OpportunityCommission (EEOC) has also increasedits scrutiny on employers employing minors.For example, the EEOC is currently
engaged in an initiative to educate teensabout workplace harassment, discrimination,retaliation and how to file a claim ifa teen believes he or she has been victimized.As part of this initiative, the EEOC isalso aggressively prosecuting harassmentclaims filed by teens. Given the stance ofthese agencies on child labor issues, it’simportant that employers become awareof federal and state laws applicable to minoremployees. Some of the laws that pizzeriaemployers should be aware of:

How Old Should Minors Be to Workin a Pizzeria?

The Fair Labor Standards Act (FLSA)sets wages, hours worked and safety requirementsfor minors. The rules varydepending upon the age of the minor andthe particular job involved. However, asa general rule, the FLSA sets 14 years oldas the minimum age for employment,subject to limits on the number of hoursworked by minors.

Are There Any Job Restrictions forMinors Working in a Pizzeria?

The FLSA generally prohibits the employmentof a minor in work that is declared hazardous by the Secretary of Labor. Forpurposes of pizzerias, one of the “hazardous”occupations that has been identifiedby the Secretary of Labor is any occupationinvolving the operation of powerdrivenbakery machines. However, thisrestriction does not apply to portablecountertop mixers. Therefore, minors areprohibited from operating, setting up, repairingor cleaning a dough mixer, doughbreak, cake cutting band saw, and othersimilar machines. However, in 1990,DOL took the position that operation ofa pizza dough roller by 16- or 17-year-oldswould not violate the law, as long as themachine met several safety requirements.The same age group is also permitted to operate, clean, repair, and otherwise workwith and around a dough roller that meetsthe safety requirements.

What Hours Can Minors Work?

Under federal law, minors between theages of 14 and 15 must:
• Work outside school hours.
• Must not work more than 40 hours inthe employer’s workweek when schoolis not in session, or 18 hours in theemployer’s workweek when school isin session.
• Must not work more than 8 hours inany day when school is not in session,or 3 hours in any day when school is insession, including Fridays.
• Must work only between the hours of7:00 a.m. and 7:00 p.m. in any day,but can work between 7:00 a.m. and9:00 p.m. during the summer (June 1to Labor Day).Note that state laws may place differentrestrictions on the hours of workfor minors between the age of 14 and 15.Therefore, state laws should also be consultedto ensure full compliance.

Similarly, there are no limits on thehours of work and scheduling of minorsbetween the ages of 16 and 17 yearsunder federal law, but there are likelyto be state law restrictions. Therefore,state laws should also be considered forminors between the ages of 16 and 17years.

What if the Employer Is the Parentor Guardian of the Minor?

The FLSA does not apply, or its applicationis limited, if the minor employee isunder the age of 16 and is employed bya parent or a custodian in an occupationthat does not involve manufacturingor mining, or an occupation found tobe hazardous by the Secretary of Labor.Therefore, although the hours of workdiscussed may not apply to minor employeeswho are the children or custodianof an employer, the restrictions for workon certain bakery machines still apply.

What Are Appropriate DressCode and Grooming Standardsfor Minors?

Employers have the option of regulatingworkplace grooming and appearance.The key is to carefully draft and consistentlyenforce a reasonable dress code.A dress and appearance policy based onbusiness needs that is applied uniformlywill generally not run afoul of employees’seemingly expanding civil rights. Anyappearance policy should be based onjustifiable business reasons that do nothave a disproportionate effect on particularsegments of the workforce, particularlythose in a protected category. As withall employment policies, you must ensurethat such policies are applied consistentlyand fairly without regard to an applicant’sor employee’s race, sex, nationalorigin, religion, color, disability, age, orany other protected status.

It’s important to note that when facedwith grooming- and dress-based cases,courts and arbitrators will balance an employee’sdesire for self-expression with anemployer’s right to enforce a reasonabledress code necessary to protect the company’simage. While caution should beheeded, in most cases the employer’s reasonabledress code will prevail. Case inpoint: In an arbitration decided severalyears ago, a woman of Mayan descent wasrequired to cover up a nose ring she woreto work in her position as a hospital receptionist.The employee viewed the nosering as part of her Mayan cultural heritage,whereas the hospital viewed it as aviolation of its dress guidelines prohibitingextremes in jewelry. The arbitratoragreed with the employer. He viewed theemployer’s requirement that the nose ringbe covered as reasonable because as a receptionistthe employee was the first personto make an impression upon hospitalvisitors. The case highlights that courtsand arbitrators continue to support anemployer’s right to enforce a reasonabledress code as long as it is does not encroachupon a protected activity and canbe tied to reasonable business needs.

What Are the Penalties for ViolatingChild Labor Laws?

Employers who employ minors shouldtake care to be in compliance with stateand federal labor laws. If employers donot do so, they risk facing civil penalties,including $11,000 for each employee whowas the subject of a violation, or $50,000with regard to each violation that causesthe death or serious injury of any employeeunder the age of 18, which may bedoubled when the violation is a repeat orwillful violation. Employers who fail topay statutory minimum or overtime ratesmay also be sued by aggrieved employeesin state or federal court.

Federal and state child labor lawsare complex. The above summaries aremerely examples of child labor laws thatyou should be familiar with. However,states can—and oftentimes do—havemore restrictive requirements relatingto child labor. Therefore, to keep minoremployees safe and a company in fullcompliance with relevant state and federallaws, employers must be familiarwith these laws. Employers seeking informationcan visit the DOL website (dol.gov or youthrules.dol.gov/index.htm) orstate agency sites such as California’sDepartment of Industrial Relations website(www.dir.ca.gov/dlse/dlse-cl.htm), orcontact an employment attorney.

Grace Y. Horoupian is a partner in the Irvine officeof the employment law firm Fisher & Phillips(laborlawyers.com). Her practice focuses onrepresenting employers in a variety of employmentcases in both state and federal courts, as well asbefore state and federal agencies. Horoupianalso provides preventive counseling and presentsseminars and workshops on employmentissues to executives,supervisors, managers,and human resources
professionals. She canbe reached at 949-798-2145 or ghoroupian@laborlawyers.com.