The Fair Labor Standards Act (FLSA) Child Labor Provisions
Released: 2016-06-29T00:00:00

Introduction

The Fair Labor Standards Act (FLSA) of 1938 defines and prohibits the employment of "oppressive child labor" in the United States. The act establishes a general minimum age of 16 years for employment in non-hazardous occupations and a minimum age of 18 years for employment in any occupation determined by the Secretary of Labor to be hazardous to the health or well-being of minors. However, children younger than 16 may work if certain conditions are met, and rules for agricultural and nonagricultural employment vary significantly.

Not all oppressive child labor is unlawful under the FLSA. The act's child labor provisions do not apply, for example, to child entrepreneurs and children who volunteer their time for charitable organizations. Certain occupations (e.g., newspaper delivery) are entirely excluded from coverage. Children who in no way participate, support, or work for enterprises that engage in interstate commercial activities nor work in proximity to establishments that ship goods across state lines are also not covered.

This report is a guide to the FLSA child labor provisions, accompanying Department of Labor (DOL) regulations, and their administration. Taken together, these constitute what is commonly known as "federal child labor law." In addition, all states have child labor laws, compulsory schooling requirements, and other laws that govern children's employment and activities. No state law may weaken the worker protections provided by the FLSA. However, state laws that impose greater worker protections will supersede those provided by the FLSA. Such state protections are not discussed in this report.

Provisions Addressing Oppressive Child Labor

The FLSA includes four child labor provisions, two of which address the employment of oppressive child labor, which the act defines—with some exceptions—as the employment of youth under the age of 16 in any occupation or the employment of youth under 18 years in hazardous occupations. These provisions—at Section 12(c) and Section 12(a) of the act—create a direct and an indirect prohibition on the employment of oppressive child labor, respectively.

Section 12(c): Prohibited Employment of Oppressive Child Labor

Section 12(c) of the FLSA creates a direct ban on the employment of oppressive child labor under certain conditions. Section 12(c) states,

No employer shall employ any oppressive child labor in commerce or in the production of goods for commerce or in any enterprise engaged in commerce or in the production of goods for commerce.

Section 12(a): Prohibited Shipment of "Hot Goods"

Section 12(a) of the FLSA restricts the shipment of certain goods that have been produced in proximity to oppressive child labor—called "hot goods." It provides, in relevant part,

No producer, manufacturer, or dealer shall ship or deliver for shipment in commerce any goods produced in an establishment situated in the United States in or about which within thirty days prior to the removal of such goods therefrom any oppressive child labor has been employed.

This provision does not ban the employment of oppressive child labor directly, but restricts the interstate shipment of goods made in proximity to oppressive child labor. Child workers are protected under this provision even if they are not employed by the establishment that produces and ships the goods.

Coverage of FLSA Child Labor Provisions

The FLSA child labor provisions may apply to an individual child, an enterprise in which a child works, or an establishment that produces goods in proximity to child labor. These three types of coverage—individual, enterprise, and establishment—have somewhat different formulations, but each requires three elements:

1. Oppressive child labor . With some exceptions, oppressive child labor means the employment of youth under the age of 16 in any occupation or the employment of youth under 18 years in hazardous occupations. 2. Employment r elationship . The child must be employed by an employer (i.e., the child is not an entrepreneur or an unpaid volunteer). 3. Commerce . FLSA defines commerce as "trade, commerce, transportation, transmission, or communication among the several States, or between any State and any place outside thereof."

Where one of these elements is missing—for example, where there is no employment relationship between a child and an employer—the FLSA child labor provisions do not apply. In addition, certain occupations (e.g., newspaper delivery) and work arrangements (e.g., children working for a parent) are explicitly exempt from the child labor provisions. Where so exempt, the provisions do not apply even if all three elements listed above are present.

Individual and Enterprise Coverage of the Ban on Oppressive Child Labor

A child worker may be covered by Section 12(c) on an individual or enterprise basis. The child is covered individually if he or she is employed in oppressive child labor and engages in interstate or foreign commerce (e.g., regularly handles interstate or international mail, completes credit card transactions, uses the telephone to make interstate or international calls) or produces goods for interstate or foreign commerce.

An enterprise is covered by the FLSA child labor provisions—and coverage extends to children employed in oppressive child labor therein—if it has at least two employees who engage in interstate or foreign commerce and has "annual sales or business done" of at least $500,000. Regardless of the dollar volume of business, the act applies to hospitals; residential institutions providing medical or nursing care; schools (including higher education institutions); and federal, state, and local government agencies .

Establishment Coverage of the Hot Goods Provision

An establishment is covered by Section 12(a) of the act (i.e., the hot goods provision) if it produces goods in proximity to (i.e., "in or about") the employment of oppressive child labor. The goods produced are called hot goods and they may not be shipped out of state while the oppressive child labor is present and for 30 days after the removal of the oppressive child labor. An establishment is covered by Section 12(a) even if it is not the employer of the oppressive child labor and even if the child is not covered by the FLSA provisions on an individual or enterprise basis.

Exemptions from the Child Labor Provisions

The FLSA excludes certain occupations and work arrangements entirely from coverage of its child labor provisions:

Children with a p arental e mployer . A child who works for a parent or a person standing in place of a parent (hereafter "parent") in an occupation other than manufacturing, mining, or hazardous work may be employed at any age and for any number of hours. Child p erformers . Children of any age may be employed as actors or performers in motion pictures or in theatrical, radio, or television productions. Newspaper d elivery p ersons . Children of any age may be employed to deliver newspapers to consumers. Evergreen w reath p roduce r s ( h omebased) . Children of any age may be employed as homeworkers to make evergreen wreaths and to harvest forest products used in making such wreaths.

The act also relaxes restrictions on oppressive child labor in select occupations or industries—notably agriculture—by exempting them from the child labor provisions when certain conditions are met. For example, children who are 14 years old—and in some cases, at any age—may by employed in agriculture outside of school hours. Congress amended the FLSA to expand the set of permissible activities for 16- and 17-year-old children working with scrap balers and paper box compactors, for 17-year-old children to drive cars and trucks, and for children who are at least 14 years old and excused from compulsory schooling to work in establishments that operate power-driven woodworking machines (but they are not allowed to operate the machines).

Minimum Age for Employment

The FLSA defines oppressive child labor, generally, as the employment of a child under the age of 16 years in any occupation and the employment of a child under the age of 18 in an occupation determined to be hazardous to children by the Secretary of Labor. However, the act includes several exemptions to the child labor provisions and the oppressive child labor definition that create a complex set of thresholds that depend on the child's age, local school hours, the nature of the work (e.g., occupation, industry, and work environment), parental involvement in the child's employment, and other factors. Notably, exemptions to the act's child labor provisions create separate rules governing children's employment in non-agricultural and agricultural work.

Employment of Children in Non-Agricultural Work

For non-exempt children, the minimum age for employment in non-agricultural occupations is

18 years for occupations determined by the Secretary of Labor to be hazardous to the health and well-being of children (i.e., "hazardous occupations"); 16 years for employment in non-hazardous occupations; and 14 years for a limited set of occupations, with restrictions on hours and work conditions, as determined by the Secretary of Labor.

Under federal law, a child under the age of 14 may not be employed unless his or her employment is explicitly excluded from the definition of oppressive child labor (e.g., a parent is the child's sole employer in a non-hazardous occupation) or exempt from the FLSA child labor provisions (e.g., newspaper delivery).

Rules Governing the Employment of Children 14 and 15 Years Old

The act directs the Secretary of Labor to establish a list of occupations—other than mining and manufacturing—that do not constitute oppressive child labor for children who are 14 and 15 years old, based on the Secretary's determination that "such employment is confined to periods which will not interfere with their schooling and to conditions which will not interfere with their health or well-being."

Permitted Work for Children Aged 14 and 15 Years

DOL regulations identify the following set of jobs and activities that—subject to hours-of-work restrictions—do not constitute oppressive child labor for children aged 14 and 15 years:

office and clerical work; creative work that is intellectual or artistic in nature (e.g., computer programming, teaching, graphic design); various sales, retail, and advertising work (e.g., cashier, advertising jobs, marking prices, assembling orders, packing and shelving); certain errand and delivery work performed by foot, bicycle, or public transport; building cleaning (e.g., vacuuming); maintenance of grounds without the use of power-driven equipment; limited kitchen work, including the preparation and serving of food and beverages, cleaning and handling of fruits and vegetables, and cleaning of certain kitchen equipment; cooking, with some limitations concerning the equipment used and conditions of work (e.g., no cooking over an open flame); loading onto and unloading from motor vehicles of personal items (e.g., lunch box) and non-power tools (e.g., rake) or protective gear (e.g., work gloves) that the minor will use as part of his or her employment; dispensing gasoline and oil; cleaning cars by hand; certain work that may involve riding in motor vehicles—subject to restrictions on activities, industry of work, and working conditions; and, under limited circumstances, certain youth who are at least 14 years of age and excused from compulsory schooling may work in an establishment where machinery is used to process wood products (but may not operate machines).

A minor who is at least 15 years of age and has received training and certification in aquatics and water safety by the American Red Cross (or a similar organization) may be employed as a lifeguard at "traditional swimming pools and water amusement parks."

Explicitly Forbidden Work for 14- and 15-Year-Olds

Any job not identified by the Secretary of Labor as permitted for children 14 and 15 years of age is prohibited. However, recognizing that additional guidance may be helpful in understanding the limits of the permitted work, DOL regulations also identify explicitly prohibited work for children 14 and 15 years old. For example, these regulations indicate that while office work is permitted for this age group, work that requires use of a ladder is expressly forbidden. Consequently, the employment of a 14-year-old child in an office to stock shelves using a ladder appears to constitute oppressive child labor and would be prohibited.

Under DOL regulations, children aged 14 and 15 years may not work in any of the following jobs:

manufacturing, mining, or processing occupations; occupations declared by the Secretary of Labor to be hazardous for the employment of minors between 16 and 18 years of age or detrimental to their health or well-being; occupations that involve a hoisting apparatus; work performed in or about boiler or engine rooms, including repair and maintenance; occupations that involve any power-driven machinery, including but not limited to lawn mowers, golf carts, all-terrain vehicles, trimmers, cutters, weed-eaters, edgers, food slicers, food grinders, food choppers, food processors, food cutters, and food mixers; operating motor vehicles, serving as helpers on motor vehicles, and riding in motor vehicles, with a few exceptions; outside window washing that involves working from window sills, and all work requiring the use of ladders, scaffolds, or similar equipment; youth peddling, which entails the sale of goods or services to customers at locations other than the employer's establishment, excluding unpaid volunteer work for charitable organizations or public agencies; loading and unloading of goods or property onto or from motor vehicles, railroad cars, or conveyors, with few exceptions; catching and cooping of poultry for transport or for market; public messenger service; occupations connected to the transportation of persons or property; warehousing and storage occupations; communications and public utilities occupations; and construction occupations, with exceptions for some office and sales work.

Work Hours for 14- and 15-Year-Old Children

DOL regulations require that work performed by 14- or 15-year-old children be outside school hours when school is in session. Regulations limit the number of hours performed per day and per week and the time of day when the work may occur.

When school is in session, children may perform no more than 3 hours per day on a school day (including Friday), 8 hours on a non-school day, and 18 hours in one week. Otherwise, when school is not in session, children may perform up to 8 hours per day and 40 hours per week. Work hours are confined to 7 a.m. to 7 p.m. except during the summer, when evening hours are extended to 9 p.m.

DOL regulations provide some exceptions to the hours-of-work requirements:

Sports a ttendants . Children who provide specific sports-attending services at professional sporting events (e.g., batboys or batgirls) may work any hours so long as they occur outside of school hours. Work-experience and c areer e xploration p rogram p articipants . Children participating in certain state-run school-supervised work-experience and career exploration programs that have been approved by DOL are permitted to work during school hours up to 3 hours per day on school days. Children in these programs may work up to 23 hours per week when school is in session. All other rules regarding work hours apply. Work -s tudy p rogram p articipants . A child enrolled in a DOL-approved work-study program may work up to 18 hours per week when school is in session. The child may work one day or two days per week during school hours (depending on where the child is in the program's work cycle) for up to 8 hours on that day(s). High s chool g raduates and c hildren e xcused from c ompulsory s chooling . Children who have graduated high school, been excused from compulsory schooling by the state for certain reasons, or been expelled from school and not required to attend an alternate school are exempt from regulations limiting work hours when school is in session. For this group of children, the limits placed on hours worked per day and per week when school is not in session (i.e., 8 hours per day and 40 hours per week) apply at all times during the year.

Non-Agricultural Hazardous Occupations for Children Aged 16 and 17 Years

The Secretary of Labor has identified 17 groups of occupations as hazardous or detrimental to the health or well-being of children between the ages of 16 and 18 years ( Table 1 ). Employment in these jobs—formalized in regulations as the Secretary's "hazardous occupation orders" or "orders"—is prohibited, with limited exemptions for registered apprentices and student learners. In some instances, the orders ban children's employment in entire industries (e.g., coal mining, Order 3) with some exceptions for office, sales, or maintenance work; others prohibit children's exposure to certain materials (e.g., radioactive substances, Order 6) or equipment (e.g., power-driven hoisting apparatus, Order 7).

Employment of Children in Agriculture

Three exemptions to the FLSA child labor provisions create separate minimum age thresholds and hazardous occupations rules for children employed in agriculture.

Minimum Age for Employment in Agriculture

With some exceptions, the minimum age for employment in agricultural occupations is

16 years for employment in any agricultural job, including those determined to be hazardous by the Secretary of Labor, with no restrictions on hours of work; 14 years for employment in non-hazardous agricultural jobs outside of school hours; 12-13 years for employment in non-hazardous agricultural jobs, outside of school hours, with the written consent of a parent; written consent is not required if the work takes place on a farm that also employs the child's parent; 10-11 years for employment to hand-harvest select crops for up to eight weeks in non-hazardous agricultural jobs, outside of school hours, with the written consent of a parent, providing the employer has obtained a waiver permitting this employment from the Secretary of Labor; and Any age (up to 12 years), for employment in non-hazardous agricultural jobs, outside of school hours on certain small farms, with a parent's written consent.

A child of any age who is employed exclusively by a parent on a farm owned or operated by the parent may work without restriction.

Hours of Agricultural Employment

With few exceptions, children employed in agriculture may not work during school hours until they are 16 years old. The FLSA does not limit the number of hours per day or week that children can work in agriculture, nor does it place limits on when that work occurs outside of school hours (i.e., children may work in agriculture for any number of hours per day or week, and at any time during the day or night).

Agricultural Hazardous Occupations

With few exceptions, a child below the age of 16 may not be employed in agriculture in an occupation that is determined by the Secretary of Labor to be particularly hazardous or detrimental to the health or well-being of children under 16 years old. This prohibition does not apply to children employed by a parent on a farm owned or operated by the parent. When certain requirements are met, student learners and graduates of tractor or machine operation programs that meet regulatory criteria may be employed in select hazardous occupations. DOL groups hazardous occupations in agriculture in 11 employment categories that are described in Table 2 .

Administration of Child Labor Provisions

The FLSA authorizes the Secretary of Labor to conduct workplace inspections and investigations to determine if oppressive child labor is present and to enforce the child labor provisions. The Secretary of Labor has delegated inspection authority to the DOL Wage and Hour Division (WHD), which oversees enforcement of several federal laws governing workplaces.

Two remedies are available for violations of the FLSA child labor provisions. The Secretary of Labor may assess civil money penalties or seek other relief, including injunctive relief.

Civil Money Penalties

Employers who violate the FLSA child labor provisions may be assessed a civil penalty of

up to $11,000 for each employee who was the subject of a child labor violation, or up to $50,000 for each violation that causes the death or serious injury of a minor employee; a penalty may be doubled if the violation is a repeated or willful violation.

Civil penalties collected from employers for child labor violations are deposited in the general fund of the U.S. Treasury. Employers may seek an exception to a civil penalty determination or may request an administrative hearing within 15 days of receiving a determination of penalty from WHD; such requests must be made in writing.

An examination of WHD enforcement data reveals that, since FY2007, the agency has concluded over 9,700 cases (representing more than 176,000 violations) in which employers violated FLSA child labor provisions. Well-represented among these cases were full-service restaurants (1983 cases), and limited-service restaurants (1,530 cases) and eating places (173 cases). Together these establishments represented more than 37% of concluded FLSA child labor cases. Overall, civil money penalties ranged from no penalty to $287,980.

Injunctions and Criminal Penalties

U.S. district courts have jurisdiction to enjoin violations of the FLSA's child labor provisions. For example, a federal court may order an employer to halt employment of a minor in a hazardous occupation or may enjoin a producer from shipping goods out of state from an establishment in or about which a child labor violation has occurred.

Criminal penalties are also prescribed for willful violations of the FLSA's child labor provisions. Any person who willfully violates these provisions will, upon conviction, be subject to a fine of not more than $10,000, imprisonment for not more than six months, or both. Imprisonment, however, will be sentenced only if a violator has a prior conviction for willful violation of the child labor provisions.

Courts' Consideration of FLSA Child Labor Provisions

Since the enactment of the FLSA, various courts have resolved cases involving the meaning and operation of the law's child labor provisions.

Application of Section 12(a): Shipment of Goods in Commerce

Many of the early cases brought under the child labor provisions considered whether they should apply when the movement of goods may not have occurred "in commerce" or when the items created by the employer were arguably not "goods" within the meaning of the provisions. These early cases appear to have focused generally on the application of Section 12(a) of the FLSA. Subsection (c) was not added to Section 12 of the FLSA until 1949. Thus, the courts in these early cases did not address the direct employment of minors but rather whether an employer was transporting goods that were produced by minors.

In a 1945 decision, Western Union Telegraph v. Lenroot , the U.S. Supreme Court considered whether Section 12(a) applied to a telegraph company that employed messengers who were under the age of 16. Lenroot, who served as the DOL's chief of the Children's Bureau, maintained that Western Union violated Section 12(a) by shipping or delivering for shipment in commerce telegraphic messages that were produced in an establishment where oppressive child labor was employed. Whether the messages were "goods" for purposes of Section 12(a) was one of the questions considered by the Court. While the Court found that the messages "are clearly 'subjects of commerce' and hence ... are 'goods' under the [FLSA]," it nevertheless concluded that Western Union was not a producer of these goods. The Court maintained that Western Union simply transmitted the messages and did not handle them in such a way as to make it a producer of goods. The Court also concluded that Western Union did not "ship" the messages in such a way as to find a violation of Section 12(a). The Court observed: "We do not think that 'ship' in this Act applies to intangible messages, which we do not ordinarily speak of as being 'shipped.'"

In Tobin v. Grant , another early decision from 1948, a federal district court in California considered the meaning of the phrase "ship or deliver for shipment in commerce" as it is used in Section 12(a). The employer in Tobin , a manufacturer of books and book covers, employed 22 minors under the age of 16 in processing and manufacturing occupations. Tobin, who served as Secretary of Labor at the time, alleged a violation of Section 12(a) even when the majority of the employer's goods were not shipped interstate. Although the employer knew that its customers would eventually ship the books and book covers for use outside of the state, it maintained that knowledge of the goods' ultimate destination was immaterial.

The court concluded that the employer's delivery of goods, albeit primarily intrastate, was prohibited by Section 12(a). Citing the FLSA's legislative history, the court observed:

[T]he words "deliver for shipment in commerce" are sufficiently broad to cover a situation in which a manufacturer, knowing that the ultimate destination of his goods is in interstate commerce, sells to a concern which makes the actual shipment. If the Act did not cover such a transaction, manufacturers could violate the law with impunity by selling goods within the state of manufacture, regardless of the known interstate market.

Application of Section 12(c): Direct Employment of Oppressive Child Labor

More recent cases have examined Section 12(c) of the FLSA and the direct employment of minors. For example, in McLaughlin v. Stineco , a 1988 decision, a federal district court in Florida found that a framing contractor violated Section 12(c) by employing minors under the age of 18 years in a hazardous occupation and by employing a minor under the age of 16 years during hours not permitted by DOL regulations. The company employed a 17-year-old and a 15-year-old to perform roofing work, an occupation that the Secretary of Labor found to be hazardous. Regulations promulgated by the Secretary defined all occupations in roofing operations to be hazardous for the employment of minors between 16 and 18. Based on these regulations, the court further concluded that the employment of individuals between the ages of 14 and 16 years was also prohibited. Ultimately, the court found that the framing contractor violated Section 12(c).

In addition, the court also determined that the framing contractor violated DOL's child labor regulations by employing the 15-year-old for more than 40 hours per week. The minor indicated that he worked for three to five weeks, arriving at work between 7:00 and 7:30 a.m., and quitting between 4:30 and 5:00 p.m., with a lunch break of 30 minutes to one hour. Under the agency's regulations, a minor between the ages of 14 and 15 years may not work for more than 40 hours in any one week when school is not in session and not more than 18 hours in any one week when school is in session.

In Martin v. Funtime , a 1991 decision, a federal district court in Ohio found that the operator of three amusement parks in Ohio and New York violated Section 12(c) by employing numerous 14- and 15-year-olds beyond the hours prescribed by the Secretary of Labor. The minors were regularly employed for more than 40 hours per week when school was not in session and more than 18 hours per week when school was in session. The minors were also employed before the start time identified in DOL's regulations and after the similarly prescribed end time.

In enjoining the amusement park operator from further violations of Section 12(c), the court rejected the operator's argument that it was engaging in serious efforts to reduce the number of violations and that it was inherently difficult to monitor the hours of all of the minor employees. The court maintained that the operator either knew about the violations or could have easily discovered them because they involved "an impermissible number of hours per week ... and were obvious from the defendant's own time records."

In affirming the court's decision in Funtime , the U.S. Court of Appeals for the Sixth Circuit observed that an employer's responsibility for child labor violations "approaches strict liability." The court noted, "[A]n employer cannot avoid liability by arguing that its supervisory personnel were not aware of the violation, or by simply adopting a policy against employing children in violation of the Act."

Recent DOL Court Filings

Although a review of recent FLSA cases produced few court decisions involving either Sections 12(c) or 12(a), it appears that the investigation of alleged child labor violations has continued steadily. In August 2015, for example, following a WHD investigation, DOL alleged violations of Section 12(c), as well as violations of the FLSA's minimum wage and overtime provisions, in a case involving an Ohio restaurant. In Perez v. Cathedral Buffet, Inc. , DOL is seeking $207,975 in back wages, as well as an equal amount in liquidated damages for the wage and hour violations. The agency is also seeking to permanently enjoin future violations of the FLSA.

In December 2015, DOL filed a similar complaint against an Oklahoma restaurant. In Perez v. Moranto , DOL is alleging violations of the FLSA's child labor, minimum wage, and overtime provisions. With regard to the child labor allegations, DOL maintains that the restaurant employed minors between the ages of 10 and 17 to work as bussers and that minors under 16 years worked more than the number of hours permitted by DOL regulations and beyond the start and end times permitted by such regulations. The agency also asserts that at least one minor operated hazardous equipment on a regular basis.