On the federal level, the Fair Labor Standards Act (“FLSA”) and its regulations establish rules for the employment of minors under the age of eighteen. Among other things, the federal child-labor rules restrict the hours of employment for youths and prohibit the employment of minors in certain occupations and workplaces deemed hazardous for youths. The rules vary depending upon the age of the young worker. The U.S. Department of Labor (“DOL”) is authorized to assess civil penalties against employers that violate the federal restrictions on the employment of minors.

On May 21, 2008, President George W. Bush signed into law the Genetic Information Nondiscrimination Act (“GINA”), which, in addition to prohibiting discrimination based on genetic information, amended the FLSA to increase the civil penalties for child-labor violations. Before GINA’s enactment, the maximum civil penalty for a single child-labor violation was $11,000. Now, under GINA, the DOL may assess a penalty of up to $50,000 (and up to $100,000 for a willful or repeat violation) when a violation results in the death or serious injury of an employee under the age of eighteen. These enhanced civil penalties took effect on May 21, 2008, but until recently, there was no official guidance on how the DOL would apply the heightened sanctions in particular situations.

On January 20, 2010, the DOL’s Wage and Hour Division issued a Field Assistance Bulletin (the “Bulletin”) providing guidelines for use by enforcement personnel in determining appropriate civil money penalties against employers that violate the FLSA’s child-labor provisions. As discussed in the Bulletin, the DOL has created a Child Labor Enhanced Penalty Program (“CLEPP”) to incorporate GINA’s stiffer penalties for violations resulting in the serious injury or death of an employee under the age of eighteen. A “CLEPP serious injury” is defined as one caused by a child-labor violation resulting in a permanent loss or substantial impairment of one of the senses, of mental functions, or of the function or movement of a body part. The Bulletin identifies the factors that DOL personnel should consider in determining whether an impairment is substantial and therefore triggers GINA’s enhanced penalties.

Even if a worker under the age of eighteen does suffer a permanent loss or substantial impairment of a mental or physical function, a body part, or one of the senses, the enhanced penalties will apply only if a child-labor violation directly caused the injury. The Bulletin indicates that when the injury occurs in a workplace that has been classified as inherently hazardous for minors, such as a manufacturing plant, a saw mill, or a coal mine, a causal relationship between the unlawful employment of the minor in the hazardous workplace and the minor’s injury will routinely be found. In the case of other child-labor violations, such as working-hours violations or employment in a hazardous occupation, DOL investigators must determine under the particular facts whether the violation caused the minor’s injury, and the Bulletin provides guidance on finding such causation.

The Bulletin also establishes guidelines for determining how much of the maximum enhanced penalties should be assessed in particular situations. For example, a child-labor violation causing the death of a minor will ordinarily result in the maximum penalty of $50,000 (doubled to $100,000 in the case of a willful or repeat violation). For child-labor violations causing the serious injury of a minor, the DOL will ordinarily assess a civil penalty of $15,000 to $40,000, depending on the degree of impairment attributable to the injury. Like the penalty assessed for the death of a minor, these penalty amounts can be doubled in the case of a willful or repeat child-labor violation. For injuries that are not deemed serious, the maximum civil penalty is $11,000.

Practical Implications

The enhanced civil penalties for child-labor violations created by GINA dramatically raise the stakes for employers that employ workers under the age of eighteen. In the DOL’s first use of the stiffer penalty provisions authorized by GINA, the agency assessed a civil penalty of $53,162 against an employer following an investigation into a teenage worker’s death at a mall demolition project. The maximum $50,000 civil penalty was imposed against the employer for the death of the young worker, and a $3,162 civil penalty was imposed for the company’s failure to keep accurate records and for allowing the young worker to work in an occupation designated as hazardous for minors by the DOL.

This example should put employers on notice that hiring workers under eighteen may now carry significant monetary risk if employers fail to comply scrupulously with the federal child-labor rules. (Employers should also be aware that most states also regulate the employment of workers under the age of eighteen, and state child-labor laws are often more restrictive than the federal rules. The enhanced penalties for child-labor violations created by GINA apply only to violations of federal law, however.) Before hiring a worker under the age of eighteen, employers should become thoroughly familiar with the applicable child-labor rules and should take steps to ensure that those rules are strictly followed.