News + Events
Employment & The Law - Trends Suggest Expanded Protection for Minor Employees
November 17, 2008
Evan H. Pontz
Underage workers have long enjoyed special protection under federal and state employment laws. In addition to the protections of employment laws that govern all employees, a teenage employee also benefits from specific child labor laws, the most sweeping of which are contained under the Fair Labor Standards Act (FLSA) and enforced by the U.S. Department of Labor. Recognizing the unique nature of the teen employee (who often doubles as a full-time student), these child labor provisions are primarily designed to protect a minor’s educational opportunities as well as prohibit a minor’s employment in jobs and under conditions that may be detrimental to his or her health or well being.
Recent trends suggest that current laws governing teenage employees are no longer sufficient. Lawmakers and judges alike have slowly begun to expand the protections afforded to minors within the employment context. This article discusses two recent developments – a heightened standard applied to sexual harassment cases involving teenage victims and the increase of monetary penalties for violations of the child labor provisions – and provides suggestions for managing a teenage workforce and preparing for these new protections.
Recent Sexual Harassment Rulings Suggest Special Considerations for Underage Victims
Since 1998, when the United States Supreme Court issued its decisions in Faragher v. City of Boca Raton and Burlington Industries v. Ellerth, employers have had explicit guidelines that govern their liability for sexual harassment committed by supervisors against company employees. These cases outlined what does not result in a tangible employment action (such as a termination, demotion, pay cut or other similar actions). To establish the defense, the employer must show (1) that it exercised reasonable care to prevent and promptly correct any sexually harassing behavior and (2) that the victim unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer. In the past, courts generally found that an employer satisfi ed this defense by showing that it had an anti-harassment policy that provided reasonable alternative methods for reporting harassment, that this policy was effectively disseminated to employees and vigorously enforced, and that the victim unreasonably failed to take advantage of this policy.
Recent case law, however, suggests that some courts are beginning to question the notion that employers may avoid liability based on the maintenance of an anti-harassment policy and reporting procedure in compliance with Faragher. This is particularly true in lawsuits involving teenage employees, where courts have begun to consider an alleged victim’s age in determining whether the employer exercised reasonable care to prevent workplace harassment. For instance, in the November 2007 case EEOC v. V & J Foods, the U.S. Court of Appeals for the Seventh Circuit (which covers Illinois, Indiana, and Wisconsin) expressly rejected the argument that an employee’s age is irrelevant when determining the reasonableness of the employer’s antiharassment policy and reporting procedures. According to the Seventh Circuit, whether a reporting mechanism is reasonable depends, in part, on the capabilities of the group of employees. The court focused on the fact that the employer chose to employ teenagers and reasoned that, while the employer was not obligated to tailor its complaint procedures to the competence of each individual employee, it was obligated to suit its procedures to the understanding of the average teenager. Based on this reasoning, the court found that the employer’s complaint procedure was too confusing for the average teenager and rejected the Faragher defense in the case, thus allowing the case to go to trial.
The United States District Court for the Southern District of Alabama similarly expanded the “reasonable care” standard for teenage employees in a case brought against a nationwide restaurant chain. There, the employer attempted to defend against the seventeen-year-old former employee’s sexual harassment claim by showing that it had a comprehensive policy in place, that the employee was aware of the policy as evidenced by her signature acknowledging receipt of the policy, and that the employer effectively disseminated the policy by posting it in every restaurant unit as well as including it on logs that employees signed when receiving their weekly pay. Despite the evidence of widespread dissemination of the policy, the court concluded that the employer had failed to effectively distribute the anti-harassment policy strictly because of the employee’s age. Specifically, the court reasoned that minors are not simply young adults, but rather they exhibit different psychosocial, physical, and neurological traits than most adults. Consequently, the court held that an employer must use more care when communicating an anti-harassment policy to teenage employees.
It remains to be seen what impact, if any, these cases will have on future sexual harassment litigation or whether other courts will join the efforts to hold employers to a higher standard of care when dealing with teenage employees. Nevertheless, employers are wise to review their harassment policies to ensure that they adequately convey prohibited behavior and reporting procedures and to confirm that all employees are aware of and understand the anti-harassment policies.
New Legislation Calls for Increased Penalties for Violations of Child Labor Laws
Although the long-term impact resulting from the recent sexual harassment rulings remains unclear, there is no doubt that lawmakers have embarked on a campaign to more rigorously enforce child labor provisions under the FLSA. The FLSA regulates the employment of minors by (1) setting a general threshold of 14 years of age as the minimum age of employment; (2) setting minimum ages for specific jobs that are considered to be particularly hazardous (e.g., driving motor vehicles, operating power-driven machinery, and participating in certain roofing operations); and (3) limiting the hours that minors are permitted to work.
Employers have always faced fairly steep penalties for violations of the FLSA’s child labor laws. The recently enacted Genetic Information Nondiscrimination Act (GINA) (which is primarily designed to prevent the unauthorized or mandatory genetic testing of employees), however, contains two provisions that increase the maximum penalty available for violations of the FLSA’s child labor provisions. Specifically, GINA imposes the following increases:
• The maximum penalty an employer can face for violations of the child labor provisions is increased by 10% from $10,000 to $11,000 for each employee that is the subject of the violation.
• For any violation of the child labor laws that causes the death or serious injury of any employee under the age of 18, the maximum penalty is raised from $11,000 to $50,000 for each violation. In addition, the penalty may be doubled to $100,000 where the violation is a repeated or willful violation.
These increased penalties serve to emphasize the importance of complying with the FLSA’s child labor provisions, and employers are encouraged to revisit these provisions with their employees on a regular basis to stress the importance of safety and compliance in the workplace.
What Does This Mean for Employers?
A teenage workforce undoubtedly presents a number of unique issues for employers, and the recent legislation and case law discussed in this article suggest that the protections extended to minors will continue to increase. In light of this recent focus on expanding protection for minor employees, employers should consider taking the following steps:
• Review all employment policies (particularly those governing teenage employees) to ensure that each policy clearly conveys the employer’s and employees’ rights and obligations under applicable federal and state laws.
• Ensure that all postings and notices (e.g., harassment reporting policy, child labor posters) are current and located in areas where employees can easily access them.
• Make sure that each employee – regardless of whether he or she is full-time, part-time, temporary, or seasonal – receives a copy of and is sufficiently trained on all employment policies.
• Confirm that all supervisors are properly trained on employment policies and complaint procedures.
• Periodically audit the workforce to ensure that all policies are vigorously enforced on a consistent basis.
Following these steps will help employers manage their teenage workforce while allowing them to adjust to ever-evolving employment laws.