Summer Help - Hiring Dos and Don’ts
every industry has peak periods when some extra help would be welcome. Fortunately, if that time of year is during
the summer months, you may be able to forge a mutually beneficial relationship
with some temporary help through either summer interns or teenage employees. This
can be a valuable opportunity for teens to not only get some hard-earned cash,
but to learn important job skills.
employers do not know that when it comes to youth employment the Fair Labor Standards Act (FLSA), the federal
wage and hour law, as well as state and local labor laws not only apply but
also add additional restrictions on teen employment. Unpaid internships, in
particular, can be a risky proposition for employers. An internship may seem
like a good opportunity for the intern to learn and the employer to get a
“free” employee for a few months. But the U.S. Department of Labor (DOL) frowns
on unpaid work arrangements and can impose stiff penalties on businesses with
unpaid internships that do not meet stringent requirements.
teens, summer, or seasonal workers are paid or unpaid, failure to comply with
wage and hour laws can prove disastrous with businesses subjected to fines,
unpaid overtime claims, and expensive lawyers’ fees. So it is important to
understand the risks and legal obligations when hiring summer help.
Minimum Wage – A
Review of the Basics
FLSA includes minimum wage and overtime rules and
covers virtually every employer in the United States. Most importantly, the
FLSA mandates that employers pay covered nonexempt employees no less
than the current federal minimum wage ($7.25 per hour), with several
exceptions. Each exception has very specific criteria, some of which are
applicable to teen workers and discussed more below. Nonexempt employees are
also eligible for overtime compensation when they work more than 40 hours per
states also have minimum wage laws that are set at a higher standard than
federal law and limitations on the federal exceptions. If state and federal laws provide for
different minimum wage rates, the employee must be paid the higher of the wage
rates. For more information see DOL’s “My State” page.
Requirements – A Must Read for Employers Hiring Teens
The FLSA includes provisions limiting the
scope of employment for youth workers under 18 years of age. Keep in mind too,
that many state and local laws increase restrictions for child labor.
Youth ages 14 and 15 years old
Under the FLSA, a youth must be at least 14
years old in order to work in a nonfarm job, which must also be nonmining and
Job duty restrictions on youth ages 14 and
15 include the following categories:
Hour limitations for youth ages 14 and 15
are as follows:
Youth ages 14 and 15 who are enrolled in an
approved “Work Experience and Career Exploration Program” may work up to 23
hours during school weeks and up to 3 hours on school days, including during
Youth ages 16 and 17 years old
The FLSA allows for youth ages 16 or 17 to
work in any non-hazardous job for an unlimited number of hours, provided all
other requirements of the FLSA are met.
Eighteen and older
reaching the age of 18, a youth may perform any job, including hazardous jobs,
for an unlimited number of hours.
Child Labor Laws advisor
provides more information on youth
labor restrictions, and state and local laws might
add further restrictions on youth employment.
Subminimum Wage –
Exceptions to the Minimum Wage Requirement
FLSA does provide exceptions to the federal minimum wage and overtime
requirements, which may be applicable to summer help. But each exemption has
stringent requirements that must be met, and state laws may add further
prohibitions and limitations.
Employees under 20
may be paid $4.25 per hour during their first 90 consecutive calendar days of
employment. After the first 90 days or
the employee reaches the age of 20, the employee must be paid at or above the
standard minimum wage. In order to be
eligible for this exception, the employee must not displace other workers.
may be paid by the employer a subminimum wage of $2.13 per hour. If a tipped employee does not receive in tips
and hourly wages an amount that equals at least the federal minimum wage, the
employer must pay the difference to the employee. In addition, in order for an employer to use
this tip credit provision, the employee must retain all tips and customarily
and regularly receive more than $30 per month in tips. The employer must also inform the employee in
advance and be able to show that the employee receives at least the minimum
wage when combining the special $2.13 per hour minimum wage and tips. For more
on the tip credit exception visit DOL’s webpage, which
provides information on state tip credit rules.
and recreation workers are exempt from the minimum wage and overtime
provisions if employed by amusement or recreational establishments, including
organized camps, or religious or nonprofit educational conference centers, if
either: (A) the establishment does not operate for
more than seven months in any calendar year, or (B) during the preceding
calendar year, the establishment’s average receipts for any six months of such
year were not more than 1/3rd of its average receipts for the other six months
of the year.
are employed in retail or service stores, agriculture, or colleges and
universities may be paid 85 percent of the minimum wage but only if the
employer first obtains a certificate from the DOL under the “Full-Time Student
Student learners who are high
school students at least 16 years of age and enrolled in vocational education
courses may be paid 75 percent of the minimum wage but only if the employer
first obtains a student learner certificate from the appropriate Regional
Office of DOL’s Wage and Hour Division.
whose earning or productive capacity is impaired by
physical or mental deficiency or injury may be paid less than the standard
minimum wage, but only if the employer first obtains a certificate from the
appropriate Regional Office of DOL’s Wage and Hour Division.
– Tread Carefully!
category, or exception to the minimum wage rule, has received much scrutiny from
DOL in recent years. In an effort to curb abuse of unpaid internships, the
department has laid out specific criteria for what it considers a true “unpaid”
intern. Workers who do not meet the criteria, regardless of title, must be paid
the minimum wage and overtime. DOL has six criteria
for determining who qualifies as an “intern”: position. Internships should be of fixed duration, and should not be considered
strictness of federal law means that, when in doubt, it is usually better to
pay a worker. Businesses that cannot afford paid interns
should work with a university, high school, or trade school to establish a
legitimate unpaid internship in exchange for educational credit.
violations of wage and hour laws
Failing to comply with wage and hour rules exposes a business to
significant liability, as litigation statistics paint a dismal picture for
employers. Some studies estimate that 70
percent of employers are out of compliance with wage and hour laws.
with wage and hour complaints may either contact DOL to report possible
violations or bring suit on their own against the employer. Employers can be liable either civilly or
criminally for FLSA violations. Civilly, an employer may be fined up to $1,100
per minimum wage or overtime pay violation.
Child labor laws can result in fines of $10,000 for each child worker
employed illegally. There is also
potential personal liability for employers with substantial authority over
operations and terms and conditions of employment. Criminally, FLSA violators are subject to
fines and multiple offenses may result in prison time.
DOL’s website or call the Wage and Hour
division at 866-4USWAGE. You may also download a copy of the National
Federation of Independent Business’s Guide
to Wage and Hour Laws at http://www.nfib.com/legal-center/legal-guide-series.
by Elizabeth Milito, Esq., National Federation of Independent Business
National Federation of Independent Business
is the nation’s leading small business association, representing 350,000
members across the United States. Elizabeth Milito serves as Senior Executive
Counsel with NFIB’s Small Business
Legal Center and frequently counsels businesses facing employment
discrimination charges, wage and hour claims, wrongful termination lawsuits,
and in most other areas of human resources law.