Sidestepping the Pitfalls of Seasonal Hiring An Employers Guide to Bringing Aboard Minors, Interns, and Volunteers this Summer – JD Supra

Amid the headlines reporting on the Great Resignation and Americas Labor Crisis, employers are searching for solutions to the current workforce shortage. According to a recent report from the U.S. Chamber of Commerce, a whopping 94% of state and local chambers said businesses were finding it difficult or very difficult to find workers. As summer approaches and many employers move into their busiest season, you may be looking at staffing options you may have never considered in the past, including hiring teen workers, creating internship programs, and offering volunteer opportunities. Any or all of those may be viable options for your organization, but there are a host of potential compliance pitfalls that you need to consider. Here is a guide to bringing aboard minors, interns, and volunteers this summer.

Employing Minors

Both federal and state laws restrict the time of day and number of hours that minors can work, the type of work that minors can perform, and the equipment they can use. The Fair Labor Standards Act (FLSA) is the federal law that governs child labor and the Department of Labors Wage and Hour Division (WHD) is the agency charged with its enforcement. The FLSA allows states to enact more restrictive child labor laws, so you must be aware of any local restrictions as well. In situations where the federal law and state law differ, you must follow the law that provides the most protection for the minor.

Days and Hours of Employment

Occupations

There are limited exemptions for a few of the hazardous occupations for 16 and 17-year-olds who are apprentices or student-learners enrolled in approved programs.

It is important to keep in mind how these occupations may cross into unexpected areas. In two recent WHD child labor investigations, one involving a grocery store and one a bakery, the child labor violations did not stem from the grocery stores meat slicer or the bakerys dough mixer. Rather, the violation stemmed from the simple task of trash removal where the trash was loaded in a trash compactor, which violated HO 12.

These investigations serve as good reminders that you should review all of the job duties that will be assigned to minor workers and compare those with DOLs prohibited occupations. You should also check state law, which may have additional restrictions on the types of occupations that employees under 18 can work.

Another area that can create confusion for employers is driving. Under the FLSA, no employee under 17 years of age may drive a motor vehicle on public roads as part of their job. Minors who have reached the age of 17 may drive on public roadways as part of their employment, but only during daylight hours on an occasional and incidental basis, and subject to several other stringent restrictions. Importantly, 17-year-olds are not permitted to make urgent, time-sensitive deliveries, such as pizza deliveries.

Limited exceptions to these prohibitions may be available for children enrolled in an approved Work Experience and Career Exploration Program or Work-Study Program.

The child labor regulations provide direction on the types of work youth ages 14 -15 are permitted to perform, including:

Importantly, any job that is not specifically permitted for this age group is prohibited.

Work Permits/Age Certificates

Work permits and age certificates are not required under the FLSA, but many states require them for workers of certain ages. Work permits are usually issued by the local school authority or the state labor department. States that have work permit requirements generally require employers to review the work permit documentation before hiring a minor.

Some states require that you obtain an age certificate before hiring a minor. These are typically issued by the states in which the minor works, but DOL will issue age certificates if the minor employees state does not. A valid, unexpired federal certificate of age or a certificate issued by a state designated by DOL provides proof that a minor is at least the minimum age to work in a particular occupation and it may provide a defense to a claim for child labor violations.

Meal and Rest Breaks

In addition to the days and hours of employment requirements, you must also comply with applicable state law obligations related to meal and rest breaks. These generally include provisions on the number of meal and/or rest breaks that must be provided, when they should be provided, and how long they should last. While the FLSA does not require meal or rest breaks, the regulations require that rest breaks that last between 5 and 20 minutes must be paid. Meal periods of 30 minutes or more may be unpaid.

Postings

Employers who hire minors may be required to display additional postings. Federal law requires FLSA-covered employers to conspicuously post the Employee Rights Under the Fair Labor Standards Act poster, which includes information related to child labor. Some states have their own separate child labor posters and may also require you to post age-related permits or certificates, a list of the minors employed, or their meal and rest breaks.

Creating Internship Programs

You may also be considering internship programs to help alleviate your staffing woes. The National Association of Colleges and Employers reported that employers expect to boost their intern hiring by over 22% for the academic year that is wrapping up this summer. However, be careful not to think that internships are a ready-made solution to help you fill open roles or otherwise replace departed employees, as they are not necessarily like-for-like replacements for your paid employees.

As a general rule, the FLSA requires for-profit employers to pay employees for work. In some instances, however, interns and students may not be considered employees and therefore may not be entitled to compensation.

To determine whether an employment relationship exists between and employer and an intern, courts examine the economic reality of the relationship to see which party is the primary beneficiary of the relationship. If the employer is the primary beneficiary, the intern must be paid. If the intern is the primary beneficiary, the intern may be unpaid.

7-Factor Test

The primary beneficiary test includes seven factors. The test is flexible and no single factor is determinative, so the determination about whether the individual should be considered a paid employee or an unpaid intern is made on a case-by-case basis.

State laws may have separate internship requirements, so you should examine the requirements under both federal and state law. You should also review educational documentation to ensure your internship program aligns with the goals and approach of the interns educational program. You may want to coordinate with local colleges and universities to define the parameters of the internship program and to obtain assistance identifying candidates who may be interested in an internship.

To avoid blurring lines between employees and interns, you should not use interns to fill open positions. You should also refrain from giving any assurances of a job after the internship ends.

Drafting Volunteers

For public sector and non-profit organizations, volunteers may also be a viable option to ease some of the current strain they are feeling. This is not the case for private sector, for-profit employers.

DOL guidance indicates that a volunteer generally will not be considered an employee for FLSA purposes if the individual freely volunteers for public service, religious, or humanitarian objectives, and without contemplation or receipt of compensation. Examples may include members of a mens or womens organization assisting patients in nursing homes, parents reading to students in a school library, or individuals driving a school bus to transport a school band on a trip.

To be considered a volunteer, the individual:

Volunteers who are employed by a non-profit organization may not volunteer to provide the same types of services to their non-profit organization that they are employed to perform. Volunteers may be paid expenses, reasonable benefits, a nominal fee, or any combination thereof for their service without losing their status as volunteers. However, those payments cannot be a substitute for compensation or tied to productivity.

Conclusion

By understanding the specific rules surrounding volunteers, interns, and minors, you may be able to develop a new crop of valuable talent to your organization this summer. These new relationships could be rewarding to both the individuals you bring aboard and your business.

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Sidestepping the Pitfalls of Seasonal Hiring An Employers Guide to Bringing Aboard Minors, Interns, and Volunteers this Summer - JD Supra