September 2, 2003 YR2003-2
This is in response to your letter concerning the child
labor provisions of the Fair Labor Standards Act (FLSA), 29 U.S.C. 201 et
seq. You seek guidance concerning the application of Child Labor
Regulation No. 3 (Reg. 3), 29 CFR 570.31-.38 (a copy of which is enclosed), to
minors employed by the City of Name who, as part of their employment
duties, load and unload tools from the trucks which transport the workers and
FLSA section 3(l), defining "oppressive child labor,"
expressly prohibits children under the age of 16 from doing 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 (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 Reg. 3.
Reg. 3 identifies a number of occupations or activities
which are specifically prohibited for these youngsters without regard to 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
which identify occupations which are "particularly hazardous" and,
therefore, banned for 16- and 17-year-olds (e.g., working as an
"outside helper" on a motor vehicle) (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 (section 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 businesses.
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,
does not and 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 (29 CFR 570.34(a)) and does
not involve any of the tasks or occupations prohibited by Reg. 3 (sections 29
CFR Part 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. These other provisions are and will continue to be enforced.
Your letter states that the City employs 14- and
15-year-olds in maintenance jobs at City parks. You indicate that these minors
are transported by truck, along with their tools, to their job sites, and that
the minors load and unload the tools from the trucks. You inquire whether this
activity is prohibited by Reg. 3. There are several provisions of Reg. 3 which
prohibit this work by 14- and 15-year-old employees.
Section 570.33(c) of Reg. 3 prohibits these minors from
service as "helpers" on motor vehicles. Loading and unloading
materials from trucks and vans constitutes helper service on the vehicles,
where the purpose of the operation of the trucks and vans is the transportation
of such materials. In addition, section 570.33(f)(1) of Reg. 3 prohibits
minors from working in connection with the transportation of property by
highway. Loading and unloading property, which is then transported by trucks
on public roads, would be prohibited by this provision when the purpose of the
operation of the trucks is such transportation.
It appears that the City park maintenance crew trucks are
operated in large part, if not entirely, to transport workers and their
personal tools to the work sites. Thus the loading and unloading of such
transported property by workers under 16 years of age would normally be
You also inquired about the definition of "goods" under the
FLSA. Neither of the Reg. 3 prohibitions discussed above is limited to
situations where the minors are handling "goods" as defined in the
FLSA (see 29 U.S.C. 203(i)). The section 570.33(c) prohibition deals
with service as helpers on motor vehicles, with no express provision as to the
nature of the materials carried by the vehicles. The section 570.33(f)(1)
prohibition explicitly speaks of "property" rather than
"goods." Therefore, these Reg. 3 provisions are applicable regardless
of whether the tools would be considered "goods" for other purposes
under the FLSA. As you know, our Name District Office conducted an
investigation of the City of Name under the child labor provisions of
the FLSA and assessed a civil money penalty for certain violations, including
those involving the loading and unloading of trucks by minors under 16 years of
age. The City of Name has paid the civil money penalty and agreed to
future compliance with the child labor provisions. We appreciate the City's
cooperation and commitment to keeping its young workers safe.
The Department of Labor has carefully considered the information
submitted by the City regarding the transporting of minors, and the light hand
tools they use, to and from City job sites. For purposes of future compliance,
the Department of Labor will not assert a violation of the child labor
provisions in those instances where 14- and 15-year-olds load and unload the
light hand tools such as rakes, hand-held clippers, and spades they
personally will use and then ride in the enclosed passenger section of the
vehicle. This enforcement policy will not extend to other prohibited
transportation-related work such as the loading or unloading of materials other
than the light hand tools the minors use, such as trash or garbage,
power-driven equipment such as lawn mowers and weed trimmers the use of which
by this age group is prohibited under Reg. 3. Also, these minors may not
perform such helper duties as assisting the operator of the vehicle while
"backing up" or clearing narrow spaces. Finally, this enforcement position is
established with the understanding that the City of Name will remain in
compliance with all other provisions of Reg. 3 and continue to provide its
young workers with adequate safety training, continuous supervision, and
appropriate protective clothing and gear. The Department will extend this
enforcement policy to the employment of minors by other local and state
governments when these same circumstances exist.
It is also important to note that Hazardous Occupations
Order No. 2 (HO 2), 29 CFR 570.52 which is incorporated into Reg. 3 prohibits
employees under 18 years of age from work in the occupation of "outside
helper" on motor vehicles operated on any public road or highway. This
prohibition applies to any work that includes riding on a motor vehicle outside
the cab for the purpose of assisting in transporting goods. "Goods"
means goods (including ships and marine equipment), wares, products,
commodities, merchandise, or articles or subjects of commerce of any character,
or any part or ingredient thereof, but does not include goods after their
delivery into the actual physical possession of the ultimate consumer thereof
other than a producer, manufacturer, or processor thereof.
I appreciate and applaud the City of Name efforts to
both provide teens with early, positive work experiences and to ensure that
those experiences are safe and in compliance with the child labor provisions.
Our Name District Office stands ready to assist the City, should you
have any further questions concerning the child labor standards.
We trust this information is responsive to your inquiries.
Tammy D. McCutchen, Administrator
* Note: The actual name(s) was removed to
preserve privacy in accordance with 5 U.S.C. 552 (b)(7).