New Rules for Teen Workers

The Labor Department is proposing several changes to child labor regulations to keep pace with the changing U.S. workforce.

• By Marc Barrera
• Jul 17, 2007

SUMMER is traditionally a carefree time for teen-agers, but it is a time to work for as many as 4 million teens ages 15 to 17, according to NIOSH. Accordingly, agencies and organizations ramp up their efforts each year to inform the public of certain occupational dangers; one example is OSHA's 2007 Teen Summer Job Safety Campaign. Begun in mid-April, this campaign focuses on construction. At the same time, another unit of the Department of Labor, the Wage and Hour Division, has proposed a rulemaking to revisit the issue of child labor.

The Fair Labor Standards Act child labor regulations (29 CFR 570) set both hours and occupational standards for workers under 18. FLSA restricts young workers' employment according to age, limiting hours and occupations, and prohibits employment in jobs that have been identified in Hazardous Occupations Orders by the secretary of Labor. The current proposed rule would revise several of the 17 non-agricultural orders and 11 agricultural orders that, together, provide much of the framework for child labor regulations, specifying which occupations are off limits or allowed on a restricted basis for certain age groups.

Using Prosecutorial Discretion
During the past several years, DOL has adopted a policy of change it calls "prosecutorial discretion," which is authorized by 29 U.S.C. 216(e). On a case-by-case basis, it allows limited exceptions to certain restrictions for certain employers, mainly on the state and local government levels.

"Prosecutorial discretion is how the agency decides what child labor violations it wants to assert and to prosecute. Because there are no private rights of actions for violations of the federal child labor regulations--in other words, individuals can't go off on their own and file a lawsuit--it's up to the department to decide in the end whether to make an issue out of a violation or not," said Paul DeCamp, administrator of the Wage and Hour Division. "[T]hat's really what the NPRM was addressing, is the department's use of the ability to take enforcement positions as a way of trying to bring our enforcement current when the regulations themselves might be a bit out of date."

Based on the department's experience over time, DeCamp said, DOL then moves to adopt those enforcement positions into the regulations.

Child Labor Regulation No. 3 (Reg. 3), the main focus of the revisions, has provided the perfect stage for this process. It deals with restrictions to 14- and 15-year-olds' non-agricultural employment, such as prohibiting jobs that involve driving, manufacturing, coal mining, logging and sawmilling, using power-driven machines, working with radioactive substances, meat processing, roofing, and trenching. Although specific tasks are listed, Reg. 3 strictly regulates the types of industries allowed or prohibited, allowing 14- and 15-year-old workers to be employed only in most office jobs, retail, food service, and gasoline service establishments.

DeCamp said the revision would eliminate this regulation's list and focus it on regulating tasks, which would minimize or eliminate a lot of industry confusion. "Now that we are trying to remove the industry-specific limitations and instead focus entirely on tasks, employers still might have some questions about whether a task is covered, but they should no longer have any more questions about whether an industry is covered because that's no longer the focus of the regulation," he said in an interview.

In 2004, the department used prosecutorial discretion when it chose not to cite Reg. 3 occupation violations after receiving several requests from city and local governments to allow teens to work in special youth employment programs. Reg. 3's currently restrictive language of acceptable industries prohibits employment with state and local governments--as well as banks, insurance companies, advertising agencies, and information technology firms--that typically involve tasks that are listed as safe and acceptable. DeCamp said shifting the emphasis on prohibiting tasks rather than industries also comes into play here.

"The department's experience has been that the risks that are posed to young workers rely much more heavily on what particular task a worker is performing, what particular kind of equipment or environment the worker is operating in, than what particular kind of industry," he said. "What we've tried to do with these regulations is to realign the focus on tasks rather than on industries. . . . We're really trying to focus more sharply on where the risks are and where the opportunities for safe employment are."

Reg. 3 also sets many restrictions on the employment of 14- and 15-year-olds in operating motor vehicles or acting as helpers on them. Since the 1950s, this has included loading and unloading materials from motor vehicles when the purpose of the vehicle's operation is transportation of those materials. This includes the loading and unloading of light personal hand tools that young workers use when performing their duties. The restriction was meant to protect young workers from the hazards associated with loading docks, motor vehicles, and receiving departments; strains from lifting and moving heavy items; and falls and falling items.

Again, to spare youth employment programs, state and local governments were granted exceptions for loading of personal hand tools such as rakes, hand-held clippers, and shovels. DOL now proposes to revise Reg. 3 to allow 14- and 15-year-olds to load onto and unload from motor vehicles the light, non-power-driven personal hand tools they use in their employment. In addition, these minors would be allowed to load and unload any personal protective equipment they themselves will use at a work site. Minors would still be prohibited from loading and unloading materials other than light hand tools, such as trash or garbage, and power-driven equipment, such as lawn mowers.

A Break for Young Lifeguards
One activity synonymous with teens and summertime is swimming. Currently, Reg. 3 does not allow teens under age 16 to work as lifeguards. This was done in large part to mirror the standards set by the American Red Cross, which did not provide certification to teens under that age.

In 2000, the Red Cross revised its rules and changed the minimum age to 15. DOL used its "prosecutorial discretion" to informally allow 15-year-olds to be employed at swimming pools that are owned and operated by state and local governments or private-sector retail establishments--provided, the Notice of Proposed Rulemaking states, that the "youth are trained and certified in aquatics and water safety by the Red Cross, or by some similarly recognized certifying organization."

In 2005, this was expanded to include all traditional swimming pools regardless of who owns, operates, or manages the establishments, and those facilities of water amusement parks that constitute traditional swimming pools. The current proposal would include these allowances; however, 15-year-old lifeguards would be prohibited from entering or working in any mechanical rooms or chemical storage areas, including any area where the filtration and chlorinated systems are housed. Not included in this allowance would be natural environment swimming facilities, such as rivers, streams, lakes, reservoirs, wharfs, piers, canals, or ocean beaches. Other minor conditions apply.

Youth Peddling
Youth peddling, also called "door-to-door sales" and "street sales," can exploit young workers. DOL has documented several reports of workers as young as 10 and 11 working as part of mobile sales crews and selling candy, calendars, greeting cards, and similar items for profit-making companies. These minors are frequently required to work many hours on school nights and late into the evening. The department has substantiated several reports of minors being abandoned, suffering injuries from violence and motor vehicle crashes, and being exposed to the elements.

Youth peddling is prohibited in many states. DOL proposes to prohibit 14- and 15-year-olds from all youth peddling and related activities--including loading and unloading vans or other motor vehicles, stocking and restocking sales kits and trays, exchanging cash and checks, and transporting minors to and from various sales areas by the employer. The NPRM says this prohibition would not pertain to "legitimate fund-raising activities by eleemosynary organizations such as cookie sales conducted by the Girl Scouts of America or school fund-raising events where the students are truly volunteers and are not promised compensation for the sales they make." Compensation does not include small prizes, trophies, or other awards of minimal value.

Firefighting Restrictions
The department is seeking to expand an order called HO 4, which places severe restrictions on the employment of 16- and 17-year-olds in most logging, sawmill, single mill, or cooperage stock mill occupations. Certain ancillary duties for young workers are currently allowed, provided such tasks don't directly involve felling and bucking timber, collecting or transporting logs, the operation of power-driven machinery, handling or use of explosives, and working on trestles.

urring with a NIOSH report's recommendation and trying to reduce deaths and injuries, DeCamp said, the department proposes to prohibit this age group from work in fighting and preventing forest fires. This would include controlling and extinguishing fires, wetting down areas or extinguishing spot fires, and patrolling burned areas to ensure a fire has been extinguished, and pulling and burning brush.

The deadline for comments on these and other proposals in the NPRM is July 16, 2007. At press time for this issue, the department had received no comments. DeCamp attributes part of this to the department's close involvement with industry.

"We've been working with the stakeholders, providing information and getting their input. We've dealt with the NIOSH report. We've dealt with incorporating our enforcement positions that have been out there, in some instances, for many years, so I doubt this regulatory package comes as an enormous surprise to folks," he said. "My hope is that it's seen as a good government way of clarifying what the rules ought to be here, rather than having any major change."

This article originally appeared in the July 2007 issue of Occupational Health & Safety.