April 9, 2015

BEST PRACTICES FOR HIRING MINORS,

INTERNS AND VOLUNTEERS

Presented By:Susan L. Swatski, Esq.

Hill Wallack LLP

Child Labor Laws Wages Record Keeping Violations of the Child Labor

Laws

Hiring Minors

Federal Fair Labor Standards Act v.New Jersey Child Labor Law

Which law applies?Where both the FLSA and

state child labor laws apply, the higher minimum standard

must be obeyed.

Minimum Wage

Federal Minimum Wage $7.25 per hour

New Jersey Minimum Wage $8.38 per hour Minors under age 18 are exempted

Exceptions to Minimum Wage Under Federal Law

29 U.S.C.A. 213 exempts all summer camp employees (not just minors) from minimum wage and maximum hour requirements

Youth Minimum Wage $4.25 per hour to employees under age

20 for the first 90 consecutive calendar days of initial employment. After 90 days, the FLSA requires employers to pay the full federal minimum wage ($7.25).

Federal Fair Labor Standards Act v.New Jersey Child Labor Law

Who can work? Must be at least 14 years old (NJ and FED) Rules for Working Under Age 19 Rules for Working Under Age 18 Rules for Working Under Age 16

Working Under Age 19 The employer must keep a record which states:

the name, date of birth and address of each person under 19

the number of hours worked by said person on each day the hours of beginning and ending such work the hours of beginning and ending meal periods the

amount of wages paid The record shall be kept on file for at least 1 year Under Federal Law, once a minor reaches 18

years of age, the federal child labor provisions no longer apply to their employment.

** Note the grey area for which law applies to 18 year olds.

New Jersey’s Rules for Working Under Age 19

Rules for Working Under Age 18

An individual cannot: Work for more than 8 hours a day or

more than 6 straight days in any one week

Work more than 5 hours without at least a 30 min. break

Work more than 40 hours in any one week

An individual between 16 and 18 years of age requires written permission from their parent to work after 11 p.m., but in no event may such a minor work between 3 a.m. or before 6 a.m.

Rules for Working Under Age 18

Employment Certificate (Form A300)

Everyone under age 18 when the term of employment starts needs to complete an Employment Certificate

The Certificate is obtained from the school district where the minor resides, but if the residence is out of state, then look to the district in which the minor will be working

Even if the employee worked at the camp last year, new papers are required

Even if the employee is working for only a few days and worked for the camp prior years, a certificate is still required

An individual cannot:

Work before 7 a.m. Work after 7 p.m. unless he/she has

written parental permission Cannot work after 9 p.m. even with

parental permission

Rules for Working Under Age 16

Posting Requirements

Where a minor under 18 is employed, every employer shall conspicuously post: A printed abstract of the Child Labor Law A list of occupations prohibited to such

minors (most often missed) Schedule of hours of labor, including:

Name of each minor under 18, The maximum number of hours he/she shall be

required to work each day, The total hours per week, The time commencing and stopping work each

day and The time for the beginning and ending of the

daily meal period.

Record Keeping of Minors Under 19

Records must be kept on file for at least one year after the entry of the record

Employers must keep records of all minor employees listing: Name and address, Date of birth, Amount of wages paid, Number of hours worked each day, Beginning and ending work hours for

each day and Beginning and ending meal or break

periods.

Violation of the New Jersey Child Labor Law

An employer who violates the Act shall be: guilty of a crime of the fourth degree subject to a fine of not less than $100 nor more than

$2,000 for an initial violation and not less than $200 nor more than $4,000 for each subsequent violation

Each day during which any violation continues shall constitute a separate offense

Each minor so employed constitutes a separate offense

In addition, the Commissioner of Labor and Workforce Development may assess administrative penalties of not more than $500 for a first violation, not more than $1,000 for a second violation, and not

more than $2,500 for each subsequent violation

A civil penalty of $15,000, $25,000 or $40,000 will be assessed for each violation that causes a serious injury of a minor employee

The fine depends on the severity and permanency of the injury A civil penalty of $6,000, $8,000 or $10,000

will be assessed for a labor violation resulting in a non-serious injury of a minor employee

The maximum penalty for a non-serious injury is $11,000

Violation of the Federal Child Labor Law

Best Practices for Hiring a Minor

NJ Law Against Discrimination Applies to Minors Ask the same information to/from all candidates Prepare a standard list of neutral questions for all

candidates Have the seasonal worker complete an application

that includes a Disclaimer of Employment Contract (i.e. a statement that nothing in the application creates an employment agreement or in any way alters the at-will status of employment if the candidate is hired).

Ensure all notes are objective and job-related (notes are discoverable)

Handling unsolicited information: remain neutral, don’t ask follow up questions into restricted or potentially charged areas

Best Practices for Hiring a Minor (continued)

Obtain a working certificate/No undocumented workers

No sharing employees with neighboring camps

Keep the certificate on file at the minor’s place of employment

Require a signature for comparison with the signature on the certificate

Provide at least a 30 minute lunch break

Set up a system for documenting time worked

Social Media: The New Water Cooler

Have a written social media policy State whether and to what extent monitoring will

take place State the legitimate business reason for the

monitoring Provide examples of specific activities that may not

be posted on line (i.e. photographs of campers, discussion of campers by name or physical description)

Conduct training for each employee on the social media policy

Require, as a condition of employment, each employee sign off on the social media policy

Do not ask the employee/candidate for access to his/her social media account(s)

Non-Paid Internships

What is an InternshipWho Must be Paid

1. Training similar to that given in a vocational school2. Academic credit3. Classroom-like structure4. College or university level program oversight5. No displacement of regular paid workers 6. Close individual supervision by or shadowing of an

experienced professional7. The employer derives no immediate advantage from the

intern’s activities8. The internship is for the benefit of the intern 9. The intern is not necessarily entitled to a job after the

internship10.The internship should be for a fixed duration, established

prior to its outset 11.The employer and the intern understand that the intern is

not entitled to wages

Criteria For An Internship

Best Practices for Hiring an Unpaid Intern

1. Check with your insurance agent to be sure you have adequate business liability and worker’s compensation insurance

2. Issue the intern a copy of your employment manual

a. Ask the intern to sign off on all company policies and procedures

b. Provide a physical space in a professional work environment that is in close proximity to his/her direct supervisor

Best Practices for Hiring an Unpaid Intern (continued)

3. Provide necessary resources (e.g. desk, phone, email address etc. )

4. Reimburse the intern for approved expenses

5. Check with the interns’ school to find out if the school has set internship guidelines that must be met in order for the student to receive academic credit

6. Only ask the intern to work the amount of time that the company can fill with substantive assignments, training and activities

Volunteer

Definition: The applicable regulation promulgated by the Department of Labor defines a “volunteer” to be “[a]n individual who performs hours of service for a public agency for civic, charitable, or humanitarian reasons, without promise, expectation or receipt of compensation for services rendered....” 29 C.F.R. 553.101(a).

Employees may not “volunteer” to perform job-related tasks. In other words, you can’t “volunteer” to circumvent overtime laws, even if the employee consents.

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