However, as the consumers return, workers are harder to come by and to retain. More U.S. employees are voluntarily leaving their jobs now than any time in recent history, and the leisure and hospitality industry has been particularly hard-hit.
According to Business Insider, in September 2021, hospitality's quit-rate was 6.4%, more than double the national average of 3.0%. The phenomenon of Americans voluntarily leaving the workforce at sky-high rates has been dubbed the "Great Resignation."
Despite the drove of employees leaving the workforce in 2021, the U.S economy has been swiftly recovering from the COVID-19 pandemic across all industries, and there is a corresponding increase in the number of jobs available in the United States. In September 2021, there were 10.4 million job openings, compared to 7.4 million total unemployed workers. That means there are roughly 7 unemployed workers for every 10 job openings, and employers have to be increasingly competitive with recruiting, hiring and retaining employees. By comparison, over the past 20 years, there has been on average 2.8 available workers for every open job position.
As a result, businesses across all industries have been struggling to fill millions of open job positions. This is particularly true in the leisure and hospitality industry, where nearly one million employees quit their jobs in September 2021. The high turnover rate is primarily concentrated in essential frontline industries where jobs cannot be done remotely. Studies suggest the number of employees quitting has less to do with job availability than it does with changes in workers' priorities. Based on a survey of workers who recently quit, 44% say they're looking for more competitive wages and benefits.
While the worker shortage was initially predicted to be short lived, the Great Resignation has continued to increase and gain momentum, and businesses can no longer ignore the severity of the labor shortage while trying to recover from the COVID-19 pandemic. Specifically, the leisure and hospitality industry is still down by 1.4 million jobs compared to pre-pandemic levels. This has left many employers, and especially those in the leisure and hospitality industry, with a labor shortage and increasing need to fill open positions.
To fill in the gaps, some employers have started to hire minors for entry-level positions. According to The Guardian, teenage employment in the U.S. surged to more than 32% in summer 2021, which was the highest level since 2018. Additionally, the unemployment rate for 16- to 19-year-olds fell below the unemployment rate for 20- to 24- year-olds for the first time in history.
There are benefits to hiring teenagers in the workplace. Most are willing to work entry level positions and minimum wage jobs. They can bring enthusiasm and an eagerness to learn to the workplace. They are often interested in building their own skill set and could mature and grow into valuable and productive members of the workforce.
However, employing teenagers comes with several legal landmines to avoid. Child labor laws establish the standards for employing minors; set requirements for hours of work, wages, occupational restrictions; and sometimes require work permits or age certifications. Additionally, because state and federal law prohibit discrimination against older workers, employers should be careful to not recruit underage workers at the expense of workers over 40. This article explores these issues to keep in mind before recruiting younger workers.
Too Young: What Ages Can Legally Work?
Generally, 14 is the minimum age for most non-agricultural workers in the U.S. under the federal Fair Labor Standards Act (FLSA). There are limited exceptions to this rule for minors who work for a parent or work as actors or news carriers. Typically, child labor laws segment minors into two categories: 14- and 15- year-olds, and 16- and 17- year-olds. Younger workers have more restrictions on the type of jobs they can perform and the hours they can work.
Many states have additional child labor regulations and requirements that are stricter than the FLSA. Check the laws specific to each state by visiting the Department of Labor's website.
Fight for Your Right: Work Permits and Age Certifications
While there is no requirement for employers to obtain or certify the age of minor workers under the FLSA, many states have their own laws requiring minors to provide a work permit or age certification before they begin working. In some states, the permit requirement could depend on the type of work the minor would be doing; in others, it might depend on whether or not the minors are currently enrolled in school.
Many states like California, Illinois and New York, require certain minors to obtain a work certificate or permit from a state agency or educational institution before being allowed to work. Other states, like Florida, Hawaii, and Virginia, require employers to obtain an age certification or proof of age from the minor in order to be permitted to work. In Oregon, the minors are not required to obtain work permits, but employers are required to obtain certificates in order to employ them. Employers should always keep the work permit or age certification on file, if required.
For a full list of state requirements for work permits or age certifications, check the Department of Labor's website.
Do You Really Want to Hurt Me: Hazardous Occupations Prohibited
Federal law strictly prohibits the employment of minors in a specified list of hazardous occupations and regulates the type of work that may be performed by minors. Most of the hazardous occupations are outside the scope of the hotel and hospitality industry, however there are some restrictions that could apply to hospitality employers. For example, prohibited hazardous jobs include operating power-driven tools and machinery such as a meat slicer, bakery machine, hoisting devises, or box compactors.
Employees who are 14 and 15 years of age are generally permitted to perform task that involve office and clerical work, intellectual or artistically creative work, and cashiering and stocking, among others. They can also perform limited food service work, cleanup work and grounds maintenance, and in some instances, lifeguarding and running errands. Fourteen and 15-year-olds may not, however, participate in cooking that involves an open flame, certain cooking equipment, or devices that operate at high temperature. They also may not work with power-driven food slicers, grinders, choppers, processors, cutters or mixers.
Also, employees under the age of 17 are prohibited from driving or operating motor vehicles on public roads, regardless of whether or not they have a license, and 17-year-olds may only do so under limited and restricted circumstances.
Everybody's Working for the Weekend: Hours of Work Restrictions for Minors
Minors are limited both in the number of hours they can work and the specific times of day they can work, particularly when school is in session.
Under federal law, 14- and 15- year-olds cannot be employed (1) during school hours; (2) before 7:00 a.m. or after 7:00 p.m. (except June 1 through Labor Day when the evening hour is extended to 9:00 p.m.); (3) more than three hours a day on a school day, including Fridays; (4) more than eight hours on a non-school day; (5) more than 18 hours per week during school weeks; and (6) more than 40 hours per week during non-school weeks.
School hours and school weeks are determined by the local public school in the area the minor is residing while employed. With schools closing and offering virtual learning in the wake of COVID-19, it may be unclear when a school is considered "in session." As a result, the Department of Labor has recently issued guidance clarifying that school is considered "in session" during any week in which the school district where the minor resides requires students to attend school, either physically or through virtual or distance learning. Thus, even if the district physically closes a school due to COVID-19, but requires students to continue instruction through virtual or distance learning for at least one day or part of one day, then school is considered "in session" for purposes of the FLSA.
The FLSA does not place any restrictions on the number of hours per day or days per week teenagers aged 16 and 17 can work, so long as they are not performing a hazardous job.
However, work time restrictions may be placed on this age group under state law. For example, California and New York restrict the hours a 16- or 17- year-old can work. Additionally, local municipalities may have curfews that impact the times of day that minors can be away from their home. Because these laws are more strict than federal law, employers need to follow the applicable state and local laws where the minor is employed.
Mo Money Mo Problems: Wages Requirements for Minors
As a general rule, minors must be paid at least the statutory minimum wage for all hours worked. One exception exists under federal law: the "opportunity wage" permits an employer to pay a minor $4.25 per hour during the first consecutive 90 calendar days of employment. This exception is rarely used, particularly as state and local laws often call for higher wages.
Still, employers that can avail themselves of the exception can, as the law intends, provide an opportunity to young workers in exchange for some labor savings for the employer.
Sign, Sealed Delivered: Contracting with Minors
While general principles are in place nationwide, the nuances of contract law vary by state.
Generally, minors under the age of 18 lack the capacity to sign contracts. In most cases, any contract signed by a minor is not valid, and the minor is not legally bound. There are limited exceptions, but it is best practice to have the minor's parent or guardian give consent in order for a contract to be binding.
Even when a minor enters into an agreement on their own behalf, the contact may still be considered "voidable" by the minor. Depending on the jurisdiction, a minor can back out of their obligations under the agreement by voiding the contract while still a minor or within a certain time period after reaching adulthood. Once that time period has passed, if a minor hasn't taken action to void the contract they entered into while under the age of 18, the contract may be considered ratified by the individual upon adulthood and legally binding.
The un-enforceability of contracts involving minors is only one-way. An agreement involving a minor would still be enforceable by the minor against the employer. Parent or guardians can co-sign a contract or agreement with the minor, where they agree to take responsibility for the minor's obligations under the contract, but an adult cannot bind a child to the terms of an employment agreement.
Employers may also need to obtain consent from a parent or guardian in order for a minor to carry out a particular activity. For example, parental or guardian consent is required to conduct a pre-employment background check or administer a drug test on a minor.
Additionally, employers should obtain parental or guardian permission to photograph, videotape or otherwise surveil the minor if the business has security cameras at the worksite, or tracks online activity or phone usage of its workers on company equipment. Having a parent or guardian give explicit permission for these types of activities could help protect the business and avoid any legal breaches or infringements on minors' rights.
Don't Stand So Close to Me: COVID-19 Related Concerns
Businesses that employ minors should examine applicable federal and state laws with particular attention to COVID-19 policies. For example, many employers are requiring employees to submit to a health screening for COVID-19 symptoms or take viral COVID-19 tests at the workplace. The EEOC has expressly permitted such screening and testing for adults but has not addressed the issue as it relates to minors. Importantly, this type of medical screening constitutes a "medical examination" under the Americans with Disabilities Act, and most states require parental consent before conducting medical examinations on minor employees. Thus, if a company safety plan involves employee medical screening or testing, employers should seek parental consent before implementing such policy towards minors and consult any other relevant state laws.
Can't Touch This: Know Who Can Serve or Sell Alcohol
Currently, Maine-which allows 17-year-olds to bartend-is the only state that allows individuals under 18 years to serve or sell alcohol. Most states set the minimum age at 18, 19, or 21. Additionally, some states have restrictions on the employment of those under 21 or 18 at facilities that serve alcohol, even if the minors would not be serving the alcohol themselves.
As Good as I Once Was: Avoid Age Discrimination
Employers seeking to expand their candidate search to younger workers should be careful not to do so at the expense of older workers. Under the federal Age Discrimination in Employment Act (ADEA) and many analogous state anti-discrimination laws, employers are prohibited from discriminating against workers over 40 for being too old. Be careful to check the language of job postings and job requirements to make sure they do not expressly or inadvertently state a preference for younger workers, and make sure that any listed job requirements are true and necessary to the job at issue.
Closing Time: Best Practices
At a minimum, businesses that have employees under the age of 18 should review their hiring and employment practices, and implement a process to ensure compliance with the FLSA and any applicable state or local laws.
This is only a general summary of the key legal issues that could arise when employing minors. Additional state and local laws could also apply. Employers who are considering hiring minors should review their hiring, safety, payroll, and other employment practices to ensure compliance with federal, state, and local laws.
Ultimately, with a close eye toward prevention and consultation with an employment attorney, employers may be able to cure their understaffing woes by expanding their search to include younger workers.
By Megan Walker Associate, Fisher Phillips. This article was co-authored by Nicole Stenoish, Attorney, Fisher & Phillips, LLP
