How to avoid risks when employing summer jobs for minors

As summer approaches, many employers will be looking to staffing for the season. The summer workforce includes a significant number of miners. So now is a good time to think about the issues around hiring underage employees.

Of course, most employers already know that nearly every state, as well as the federal government, regulates the employment of minors. Regulations govern the minimum age for employment of minors, the hours they can work, the permits they must obtain, and the hazardous jobs they are not allowed to perform. Summaries of these regulations are readily available on the Internet. For example, West Virginia provides FAQs at https://labor.wv.gov/wage-hour/child/labor. Tennessee offers a summary at tn.gov/workforce/employees/labor-laws/child-labor. Western Kentucky University provides a chart at https://www.wku.edu/hr/policies/policiesdocs/kychildlaborposter5_28.pdf.

The regulations only scratch the surface. There are many other issues to consider. One of the most obvious is whether underage employees will be required to hang out with adults in circumstances that create the potential for sexual harassment or worse forms of sexual misconduct.

Prudent employers will structure work hours and assignments so that these circumstances are kept to a minimum. In addition, adult employees must be trained on the limitations to be observed vis-à-vis minor employees. Here are some examples of topics where training could be helpful:

  • Social media contact with underage employees

  • Carpooling with underage employees

  • Business trips with underage employees

  • Off-duty in-person contact with underage employees

  • Consumption of alcohol in the presence of underage employees

  • Provide alcohol to underage employees

Beyond training, employers can also determine whether criminal background checks should be performed for adult employees who are going to have significant workplace contact with underage employees. Criminal background checks are governed by the Fair Credit Reporting Act and various state laws and regulations, so employers should be sure to follow the rules that apply. A criminal background check result indicating that there is concern that an adult employee has a tendency to engage in sexually inappropriate conduct with an underage employee should be followed up on a case-by-case basis. The EEOC requires employers to consider the nature of the violation, the time it occurred, and the nature of the employment-related circumstances.

Studies have shown that underage employees are more likely to remain silent about sexual harassment because they are embarrassed to report it. But when the harassment escalates to the point that miners finally tell someone they trust, lawsuits and EEOC claims can follow. In order to avoid this scenario, it is essential to ensure that underage summer employees understand what harassment is, what to report, and who they can talk to. A signed acknowledgment attesting that the training on these subjects has been completed must be part of the integration kit.

In addition to sexual misconduct, another potential issue relates to safety orientation and training. Underage employees may not know that they can refuse work when conditions are unsafe and that they have the right to report unsafe conditions. As with sexual harassment, the fact that they are underage and new to the workplace can make them reluctant to speak up. Time spent training underage employees on these topics and documenting the training will be time well spent should an underage employee suffer a serious accident or occupational illness.

So far, this article has focused on the safety of underage employees, but it’s also fair to consider the harm that underage people can cause the company or its employees. It is very important to determine in advance which minors will have access to company computers and mobile phones, and what limits can be placed on this access. With this done, it is then important to train incoming underage employees on your policies regarding computer and mobile phone security and permitted uses.

In some cases, as with camp counselors for example, teenage employees may have considerable access to young children. These teenagers carry a heavy responsibility. Criminal background checks are difficult. Most minors’ criminal records are sealed, and minors are not legally capable of consenting to a criminal background check, which means parents or guardians would need to give consent. Given these realities, employers should insist on multiple references and check references carefully. They should consider having more than one person interview candidates and keep documentation of the interviews. In short, given the weight of responsibility that comes with the position and the lack of information available about the underage candidate, it is essential to show that the application and interview process is thorough.

Finally, make sure underage employees know and acknowledge your workplace drug, alcohol, and weapons policies in writing. This is something most employers do with all new hires, but it’s important not to let “summer help” slip through the cracks. As you would with other new hires, obtain written acknowledgments from applicants that they have read and understood the policies.

Conclusion : Following the steps outlined above can minimize risk exposure resulting from harm to an underage employee, as well as damage from an underage employee. Implementing these steps is well worth the time and effort.

© Steptoe & Johnson LLC. All rights reserved.National Law Review, Volume XII, Number 98

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