The weather is getting warmer and the sun is getting brighter, and you know what that means–employers everywhere are calling their lawyers to ask how they can put teenagers on payroll this summer! Many employers that operate summer programming seek to hire minors as recreational leaders, day camp counselors, and the like, but find themselves mystified by the legal restrictions and requirements for hiring employees under the age of 18. The following primer addresses some frequently asked questions about the law and best practices regarding hiring minors.
Work Permits and Age Certification
The California Education and Labor Codes require that prior to employing a minor under age 18 in California, an employer must obtain a work permit issued by the minor’s school. The process for obtaining a work permit is as follows: After a minor receives an offer of employment, the minor obtains a “Statement of Intent to Employ a Minor and Request for a Work Permit – Certificate of Age” (California Department of Education (CDE) Form B1-1) from their school. The form contains sections for the minor, their parent/guardian, the prospective employer, and the school to complete. After the minor returns the form to their school, if all requirements are satisfied, the school will issue the minor a work permit (CDE Form B1-4). The Labor Code requires employers to retain a minor employee’s work permit until the beginning of the fourth year after the work permit was issued.
However, many public agencies don’t realize that both the Department of Labor Standards Enforcement (DLSE) and the California Department of Education take the position that state and local agencies are exempt from the work permit requirement. The basis for this exemption is the general rule of statutory interpretation that unless Labor Code provisions are expressly made applicable to public employers, they only apply to private sector employers. (Johnson v. Arvin-Edison Water Storage Dist.) Public agency employers should be sure to check the applicable local policies, though–some cities and counties require public agency employers to obtain work permits despite the exemption from state law.
Because public agencies are subject to the federal Fair Labor Standards Act (FLSA), they still need to obtain a Certificate of Age establishing that the minor is above the “oppressive child labor age” applicable to the occupation in which the minor will be employed. Therefore, public agencies seeking to employ minors should still require the minor to obtain a signed and completed CDE Form B1-1 from their school. The agency must keep each minor’s Certificate of Age on file while they are employed, then return the Certificate of Age to the minor when their employment concludes.
Wage, Hour, and Occupational Restrictions
Public and private employers alike are subject to the FLSA, which establishes different restrictions on the hours and types of work a minor may perform depending on the minor’s age:
While minors age 16 and over are not subject to work hour restrictions under the FLSA, the California Labor Code limits their hours to 8 hours per day, 48 hours per week. Like the work permit requirement, this provision of the Labor Code does not apply to public agency employers.
All California employers, both public and private, must pay minor employees at least the minimum wage and applicable overtime rates established by the California Industrial Welfare Commission.
Fingerprinting and TB Testing
According to the California Education Code, employers must require fingerprinting for each employee and volunteer for a public recreation program who will have “direct contact with minors.” Similarly, the California Public Resources Code requires parks and recreation employers to fingerprint prospective employees and volunteers who will have “supervisory or disciplinary authority over a minor.” In addition, the same code requires a tuberculosis (TB) screening for all employees of parks and recreation facilities who will have direct contact with children. The positions in which employers seek to employ minors often entail direct contact with or supervision of other minors in the context of a recreational program–for example, a coach for a youth sports program or a counselor for a day camp. For such positions in parks and recreation programs, public agency employers must require both fingerprinting and TB screening for minor employee hires.
Beyond the field of parks and recreation, the Education and Health & Safety Codes require a TB risk assessment for employees of a public or private school. The Education Code also directs private school employers to require fingerprinting for any applicant to a position involving contact with minor students. Public school employers must require fingerprints for applicants as well (but note that the Education Code exempts from this requirement any K-12 school district seeking to employ a high school student within its own jurisdiction).
One important consideration sets minor employees apart from their adult counterparts in this context: we strongly advise that employers obtain a parent or guardian’s consent before requiring a minor to submit to fingerprinting or TB testing, in light of the confidential nature of the information.
Fitness for Duty Exams and Drug & Alcohol Testing
Some employers require post-offer fitness for duty exams, often for positions that involve physical fitness such as coaching. Under the ADA and California law, an employer may require a post-offer medical examination, including fitness for duty exams, if (1) it requires all applicants for the position to take the examination and (2) the examination is job related and consistent with business necessity. Therefore, employers should require minor applicants to a position to undergo medical examinations to the same extent as adult applicants to that same position.
With regard to drug and alcohol testing, the Ninth Circuit Court of Appeals has held that employers may only require post-offer, pre-employment drug testing if there is a “special need” to do so–that is, if the position is “safety-sensitive” in that it involves danger to the public. (Lanier v. City of Woodburn.) The court held that supervision of minors alone does not make a position “safety-sensitive.” If an employer determines there is a special need for drug testing with regard to the position for which the minor has been hired, then as with fitness for duty exams, minors should be subject to the same drug testing to which adult applicants to the position are subject.
With limited exceptions, only the parent or guardian of a minor has the legal capacity to consent to medical care for the minor in California, including treatment and diagnosis. According to the EEOC, drug and alcohol tests and some types of fitness for duty exams are considered “medical examinations” under the ADA. Therefore, we advise that employers obtain the consent of a minor applicant’s parent or guardian before requiring the minor to undergo a fitness for duty exam and/or a drug or alcohol test.
If you’re considering hiring minors this summer, trusted legal counsel can help you sort through the legal requirements particular to your jurisdiction and draft parental consent forms before the school bell rings in summer break.