Margaret “Peg” O’Brien, Esq., McLane Middleton, Professional Association
Now that Governor Sununu has lifted many of the COVID-19 restrictions, and replaced them with Universal Best Practices, we thought this would be a good time to review the laws governing the employment of individuals under the age of 18 in New Hampshire.
Which Laws Govern Youth Employment: The federal Fair Labor Standards Act (“FLSA”) and state Youth Employment Law (RSA 276-A) govern youth employment in New Hampshire. Youth work-rules are routinely enforced by both the New Hampshire and U.S. Department of Labor. Employers should ensure that any individuals responsible for summer hiring are aware of both the state and federal rules pertaining to youth employment and that all supervisors are properly trained with respect to the scope of appropriate work for minors, as well as with respect to scheduling issues. Please remember that employers must comply with both the federal and state laws governing Youth Employment and that these laws are not identical. This means that employers must comply with whichever Youth Law (federal or state) provides the greatest protection for the Youth employee.
Who qualifies as a “Youth”: Any individual under the age of 18.
When Does the Law Prohibit the Employment of a Youth: In general, any youth under the age of 14 may not work in New Hampshire (there are exceptions for casual work and newspaper delivery). Additionally, most youths may not perform “hazardous” work, such as, but not limited to, commercial driving, excavation, manufacturing explosives, and operating many types of power-driven equipment. Further, New Hampshire has specific laws governing the employment of youth in the alcoholic beverage industry.
Permissible Work/Hours Per Federal and State Youth Employment Laws:
- 14 and 15 Year-Olds:
- Type of Work: Youths who are 14 and 15 years of age may work in various non-manufacturing, non-mining, and non-hazardous jobs, such as found in retail stores, restaurants, movie theaters, amusement parks, and gasoline service stations. Youths under 16 cannot work in warehouses, communications or public utilities jobs, construction or repair jobs, or jobs in which they drive a motor vehicle, or operate power-driven machinery or hoisting apparatus (other than typical office machines). They cannot bake, cook (except with gas or electric grills that do not involve cooking over an open flame), work with freezers or meat coolers, or work in meat processing areas, or operate, set-up, adjust, clean, oil or repair power-driven food slicers, grinders, choppers, cutters, or bakery mixers or any other activity classified as a “hazardous occupation.” For more information about jobs suitable for minors, see https://www.dol.gov/agencies/whd/fact-sheets/43-child-labor-non-agriculture.
- Total Hours Per Day and Per Week; Permissible Working Hours: Youths who are 14 or 15 years of age are permitted to work 3 hours on a school day during non-school hours and a total of 18 hours during the school week.
On non-school days, they may work 8 hours per day. During the summer vacation, they may work 6 days per week, but not to exceed 40 hours per week.
Lastly, they may only work between the hours of 7:00 a.m. and 7:00 p.m., except from June 1st through Labor Day, when they are permitted to work until 9:00 p.m.
- 16 and 17 Year-Olds:
- Type of Work: Youths who are 16 or 17 years of age may engage in any work not classified as a “hazardous activity” (or separately regulated, such as serving alcohol).
- Total Hours Per Day and Per Week: In any employer’s workweek during which school is in session for five (5) of the days, youths who are 16 and 17 years of age are not permitted to work more than 6 consecutive days and may not work more than 30 hours during that workweek. See RSA 276-A:4.
In any employer’s workweek during which school is in session for four (4) of the days, youths who are 16 and 17 years of age are not permitted to work more than 6 consecutive days and may not work more than 40 ¼ hours during that workweek.
In any employer’s workweek during which school is in session for more than one (1) but less than four (4) days, youths who are 16 and 17 years of age are not permitted to work more than 6 consecutive days and may not work more than 48 hours during that workweek.
During school vacations and from June 1st through Labor Day, youths who are 16 or 17 years of age may not work more than 6 consecutive days or 48 hours in any one week. (There is an exception for youths who reside and work at a summer camp for minors.)
16 and 17 year olds who work more than 2 nights in a week past 8:00 pm or before 6:00 am may not be allowed to work more than 8 hours in any shift during that particular week. RSA 276-A:13.
16 and 17 year olds may not work more than 10 hours a day in manufacturing or more than 10¼ hours a day at manual or mechanical labor in any other employment that is not exempt by statute. See RSA 276-A:11.
- Auto Industry Specific Jobs:
- The US Department of Labor regulations provide that 14 and 15 year old youth may work in jobs connected with cars and trucks if confined to the following: dispensing gasoline and oil; courtesy service; car cleaning, washing and polishing by hand. 29 CFR §570.34.
- The US Department of Labor has opined that 16 and 17 year olds may operate electric over hydraulic lifts, electric lifts, and electric doors. See FLSA – 639 Opinion Letter (August 25, 1986). See also NHADA Article, “NH DOL Clarifies Youth Employment Prohibitions,” Dateline March 2017 for an overview of driving and lift operation restrictions for 16 and 17 year olds.
Exceptions: In general, the minimum age requirements do not apply to minors employed by their parent or by a person acting as their guardian. In addition, there are slight variations to the above guidelines for 16 or 17 year olds who are not enrolled in school.
Poster: NH employers are required to post in a conspicuous place in every room where youths are employed a printed notice stating the hours of work, the time allowed for dinner or other meals, and the maximum number of hours any youth is permitted to work in any one day.
Certificates: New Hampshire requires most youths under the age of 16 to acquire a New Hampshire Youth Employment Certificate within 3 business days of the first day of employment. The Certificate may be issued by principals of schools or their designee, or by a parent or legal guardian. For 16 and 17 year-olds, the employer must obtain a signed written document from the youth’s parent or legal guardian permitting the youth’s employment and this permission form must be on file at the worksite prior to the first day of employment. Samples of both of these forms are available on the New Hampshire Department of Labor’s website here (Forms and Publications/Youth Employment).
Penalties: Employers violating youth employment laws risk criminal and civil penalties, including fines and imprisonment. Under federal law, employers are subject to a civil money penalty of up to $10,000 per worker for each violation of the child labor laws. In addition, employers are subject to a civil money penalty of $50,000 for each violation that causes the death or serious injury of any minor employee and that penalty may be doubled, up to $100,000, when the violations are determined to be wilful or repeated. Federal law also provides for a criminal fine of up to $10,000 upon conviction for a wilful violation of child labor laws. For a second conviction for a wilful violation, the act provides for a fine of not more than $10,000 and imprisonment for up to 6 months, or both. State law also imposes civil and criminal penalties for violations of youth employment laws.
Other Considerations: Teenagers and young adults often have limited work experience and may not understand what is appropriate or “normal” behavior in the workplace. As such, young workers may be more susceptible or vulnerable to sexual harassment and discrimination in the workplace and may not understand how to report such conduct. Employers should consider taking special care to train young employees on company policies and reporting procedures for discrimination and harassment upon hire. By encouraging young employees to come forward and report any problems as they arise, employers will have the opportunity to take appropriate action before the situation grows worse.
Unpaid Interns: Finally, many teenagers and young adults express interest in working for free as a summer “intern” in order to gain practical work experience. Most unpaid interns and employers consider the relationship a win-win—the intern gets a foot in the door for regular employment and the employer gets the benefit of some unpaid work from an energetic worker. However, there are serious legal considerations every private employer must consider before using unpaid interns. These “unpaid internships” may run afoul of federal and state wage and hour laws. The U.S. Department of Labor has issued guidance addressing this issue of unpaid interns for employers. (See U.S. Department of Labor Fact Sheet #71: www.dol.gov/whd/regs/compliance/whdfs71.pdf.). The NH DOL has also issued extensive guidance on permissible school to work programs. (See NH DOL School to Work website here).
Peg O’Brien is a director in McLane Middleton’s Employment Law Practice Group. She can be reached at (603)628-1490 or Margaret.OBrien@McLane.com.