September 2, 2003 YR2003-1
Dear Name*,
This is in response to your
letter seeking guidance on a number of issues relating to the child labor
provisions of the Fair Labor Standards Act (the FLSA). These issues have
arisen because the City of Name desires to hire children under the age of 16 in
various occupations in park, recreation and library facilities owned and
operated by the City.
Section 3(l), defining
"oppressive child labor," expressly prohibits children under the age
of 16 from performing any work other than that which the Secretary of Labor
permits, by order or regulation, because it does not interfere with their
schooling or health and well-being (see 29 U.S.C. 203(l), see also 29
CFR 570.117-.119). The Secretary's declaration of what forms of labor are not
deemed "oppressive" for children between the ages of 14 and 16
appears in Child Labor Regulation No. 3 (Reg. 3) (29 CFR Part 570.31-.38).
Copies of the FLSA and Regulations, 29 CFR Part 570, are enclosed for your
convenience.
Reg. 3 identifies a number
of occupations or activities which are specifically prohibited for these
youngsters without regard to the industry or the type of business in which
their employer is engaged (e.g. "operating?.any power-driven machinery
other than office machines") (sec. 570.33). This section of Reg. 3
incorporates by reference all of the prohibitions contained in the Hazardous
Occupations Orders (29 CFR 570.50-.68) which identify occupations that are
"particularly hazardous" and, therefore, banned for 16- and
17-year-olds (e.g. occupations involved in the operation of power-driven
metal forming, punching and shearing machines) (see sec 570.33(e)). Further,
Reg. 3 contains special rules for 14- and 15-year-olds employed in retail, food
service and gasoline service establishments; certain activities are expressly
authorized in such employment (sec. 570.34(a)) whereas other activities are
expressly prohibited (sec. 570.34(b)). For example, clerical work, cashiering
and clean-up work are authorized whereas "all work requiring the use of
ladders, scaffolds, or their substitutes" is prohibited. These special
rules apply only in the designated types of business.
Because the City of Name
is not a retail, food service or gasoline service establishment, the special rules
in section 570.34 (both authorizations and prohibitions) are not applicable to
the employment of minors by the City, except where there is some discrete
operation or division which could legitimately be characterized as such an
establishment and therefore would be subject to these rules (e.g.,
minors employed in a food service operation at a City park). A strict
interpretation of Reg. 3 would prohibit the City of Name
from employing 14- and 15-year-old workers in any jobs other than those
which occur in those discrete operations or divisions that may be characterized
as retail, food service or gasoline service establishments. However, in
recognition of the importance of youth employment programs operated by the City
of Name and other public sector employers, to provide safe and
meaningful developmental opportunities for young people, the Department of
Labor, as a matter of prosecutorial discretion, will not cite Reg. 3
Occupations violations for the employment of 14- and 15-year-olds by State and
local governments as long as that employment falls within the occupations
authorized by Reg. 3 (section 29 CFR 570.34(a)) and does not involve any of the
tasks or occupations prohibited by Reg. 3 (sections 29 CFR 570.33 and
570.34(b)). The other provisions of Reg. 3 particularly the restrictions on
hours of work are fully applicable to the employment of such minors and will
be enforced.
Your letter inquires about
the use of ladders by employees who are 15 years of age. Although Reg. 3 does
not define the terms ladder and stepladder, regulations issued by the
Department of Labor's Occupational Safety and Health Administration (OSHA) do.
The Wage and Hour Division relies upon these definitions when enforcing the
youth employment provisions of the FLSA. Regulation 29 CFR Part 1910.21(c)(1) states that a ladder is "an appliance
usually consisting of two side rails joined at regular intervals by
cross-pieces called steps, rungs, or cleats, on which a person may step in
ascending or descending." Section 1910.21(c)(2) of that same Regulation
defines stepladder to mean "a self-supporting portable ladder, nonadjustable in
length, having flat steps and a hinged back. Its size is designated by the
overall length of the ladder measured along the front edge of the side rails."
You will note that neither definition is dependent upon a minimum height or
number of steps. Reg. 3 contains no provisions for waivers or exemptions
regarding the use of ladders by 14- and 15-year-old employees. Pertinent
sections of this Regulation are enclosed.
Your letter also inquires
whether the City may employ 15-year-olds as lifeguards at City swimming pools.
The occupation of "lifeguard" is not specifically authorized in Reg. 3 as an
occupation that 14- and 15-year-olds may perform. Therefore, a strict
interpretation of the statute and Reg. 3 would prohibit any employee under age
16 from working as a lifeguard. However, the Department, relying on the
expertise of the American Red Cross in the matter of water safety and, as a matter
of discretion, does not and will not assert a violation with regard to the
employment of a 15-year-old by a State or local government in the occupation of
"lifeguard" at a swimming pool provided that the minor has been trained
and certified by the American Red Cross and is working in conditions acceptable
to the American Red Cross. The
Department would not assert a violation if such youth used a ladder to access,
and descend from, the lifeguard chair. Nor would the Department assert a
violation if such youth, as part of their lifeguard duties, tested water
quality for temperature and/or pH. levels, using all of the tools of the
testing process including adding chemicals to the test water sample. But these
youths are prohibited from entering or working in any chemical storage areas,
including the area where the filtration and chlorinating systems are housed.
These youths are also prohibited from performing any water processing
operations, including, but not limited to, adding certain chemicals to the water
or back flushing the filtration system (see section 570.33(a)). Please note
that this enforcement position would not permit youths under 16 years of age
who are subject to the provisions of the FLSA to be employed as lifeguards at
locations other than swimming pools, such as rivers, lakes, reservoirs and
seaside or oceanside beaches.
Your letter also seeks
guidance as to the City's employment of 14- and 15-year-olds in City
libraries. Reg. 3 has no explicit provision concerning such employment. The
Department, as a matter of discretion, will not assert a violation with regard
to such employment by a State or local government provided that
the minor's work is in the nature of office and clerical work (as allowed by
section 570.34(a)(1)) and involves none of the specifically prohibited
activities identified in Reg. 3 (e.g., use of power-driven machinery
other than office machines; work on ladders). The Department would not assert
a violation if such youth used a one- or two-step footstool in the library.
The Department will enforce the restrictions on such a minor's hours of work
(sec. 570.35(a)).
Further, your letter
presents questions concerning minor employees operating golf carts in the
course of their employment at City parks. With regard to younger minors 14
and 15 year of age Reg. 3 prohibits the operation of "any power-driven
machinery other than office machines" (sec. 570.33(b)). This ban totally
precludes such a minor operating a golf cart, regardless of where the cart would
be driven (i.e., on park grounds or on public roads).
The operation of golf carts
by older minors 16 and 17 years of age would be subject to the restrictions of
Hazardous Occupations Order No. 2 (HO 2) (29 CFR part 570.52). Golf carts meet
the definition of "motor vehicles" and fall with the scope of the HO
2 prohibition of "the occupation of motor-vehicle driver?on any public road?"
The regulation covers a wide variety of "vehicle[s] propelled or drawn by
mechanical power and designed for use as a means of transportation" (e.g.,
motorcycles; automobiles; semi-trailers) (sec. 570.52(c)(1)). Under this
definition, the size of the vehicle is not a consideration. The regulation
provides an exception from the prohibition for the "incidental and
occasional ? operation of automobiles or trucks not exceeding 6,000 pounds
gross vehicle weight" under certain conditions (sec. 570.52(b)(1)).
However, since golf carts are neither "automobiles" nor
"trucks," this exception is not applicable to the operation of such
vehicles.
The HO 2 prohibition applies
to the operation of motor vehicles on any public road or highway, but not to
such activity in other locations (sec. 570.52(a)). In identifying a
"public road," the Department would look to the generally accepted definition
of a public road as "a road or way established and adopted (or accepted as a
dedication) by the proper authorities for the use of the general public, and
over which every person has a right to pass and to use it for all purposes of
travel or transportation to which it is adapted and devoted. The proper test
in determining whether [a] road is a 'public' or 'private road' is [the] use to
which such roadway is put, and [the] fact that [the] road has been constructed
at public expense is not conclusive" (Bush & Burchett, Inc. v. Reich,
117 F.3d 932, 938 n. 11 (6th Cir. 1997), citing Black's Law
Dictionary 1329 (6th ed. 1990)). Under this standard, a pathway
or road in or at the perimeter of a City park would not be considered a public
road, if it is used only by pedestrians, bicyclists, golf carts, and similar
traffic to access parts of the park grounds for recreational purposes. But if
the pathway or road is used by automobiles or trucks to traverse the park or to
access park facilities for purposes such as delivery of goods, then it would be
considered a public road on which a minor employee would not be permitted to
operate a golf cart.
Your letter also inquires
whether 16-year-old lifeguards may drive their own vehicles from pool to pool
on a public road during their hours of work (i.e., during the time when
they are paid by the City). Such activity is prohibited by the recently
enacted statutory provision at 29 U.S.C. 213(c)(6) (copy enclosed), which
provides that "employees who are under 17 years of age may not drive
automobiles or trucks on public roadways." Please note that this 1998
amendment to the FLSA supersedes the HO 2 provision with respect to
16-year-olds driving on public roads incidentally and occasionally (sec.
570.52(b)(1)). I am enclosing a fact sheet that addresses the 1998 amendment.
Finally, your letter asks
whether the City is responsible for its contractors' compliance with the child
labor restrictions. The FLSA and regulatory provisions are applicable to the
"employer" of the minors. Therefore, the City is responsible for
child labor compliance where the City is the sole employer or where it is a
joint employer (along with the contractor). The Department encourages the City
to oversee the operation of its contractors whether or not the City is an
employer of the minors to assure that the minors are employed only in safe
and appropriate conditions.
We trust that this
information is responsive to your request.
Sincerely,
Tammy D. McCutchen, Administrator
Enclosures
* Note: The actual name(s)
was removed to preserve privacy in accordance with 5 U.S.C. 552 (b)(7).