Kramer, Elkins & Watt

Can my child work at my business?

Can my child work at my business?

ferrero-rocher-cheesecake

As recently reported in the news, The Mixing Bowl Bakery, in Sauk City, Wisconsin is under fire for accusations of violations of child labor laws. The bakery is owned by Curtis and Vickie Eberle, a couple with nine children, many of whom work with them at the Mixing Bowl. The kids range in age from 11 years old to 6 weeks old.

On April 4, 2017, the Department of Workforce Development sent a letter to the Mixing Bowl warning the owners that their business would be audited after receiving several complaints about the children working at the bakery. More details about the Mixing Bowl Bakery and its run in with the Department of Workforce Development can be found here.

 

So, did the Mixing Bowl violate the law by having the owners’ children work at the bakery?

An analysis of this question is below but, first let’s take a look at child labor laws. There are two bodies of law at play here:

  • Wisconsin law: Wisconsin employers (or out of state employers with employees who perform work in Wisconsin) are required to follow Wisconsin law.
  • Federal law: Just about every employer is required to follow federal law.

 

Let’s take a look at Wisconsin law:

At what age are minors allowed to work?

A minor is defined as an individual under the age of 18. But, different restrictions are in place for minors of varying ages under the age of 18 with the most restrictive rules in place for the youngest of minors allowed to work – those who are 11 years of age.

The following is an overview of the minimum age for a variety of different types of employment:

  • School Lunch: Minors 12 years or older may be employed in school lunch programs.
  • Public Exhibitions. Minors under 14 years may work in public performances such as theater, television or as a live photographic model.
  • Street trades and fundraising. Minors 12 years and older may work in street trades and fundraising for non-profits and schools.
  • Caddying: Minors 12 years or older may be employed as caddies on golf courses, if using caddy carts.
  • Farming: Minors 12 years or older may be employed in farming.
  • Domestic Employment: Minors 12 years or older may do housework.
  • Parent/Guardian Supervision: Minors 12 years or over are allowed to work under the direct supervision of a parent or guardian in the parent or guardian’s business, trade or profession, so long as the place of employment is not hazardous.
  • Football Sideline Officials. Minors 12 years and over may work as sideline officials for high school football games.
  • Private athletic events. Minors 12 years and over may be employed as officials for private non-profit athletic events, under direct adult supervision.
  • Football ball monitors. Minors 11 years and over may work as ball monitors.
  • Restitution and Community Service. Minors under 14 years may work as participants in a restitution project or supervised work program, under certain circumstances.

Minors are prohibited from working in a variety of hazardous occupations such as in adult bookstores, around radioactive substances, and in conducting or assisting in the operation of a bingo game. Yes, you read that right – no bingo for minors of any age.

In addition to restrictions on type of work, minors are restricted as to the number of hours they are able to work each day and week. The restrictions are very specific based on the age of the minor, the type of work, whether or not school is in session, and whether or not the minor has graduated high school or is in any type of program such as an educational or vocational program. The rules also require specific meal breaks that are more stringent than what is required for adults.

 

Federal Law

The Fair Labor Standards Act (FLSA) governs employment of minors, and applies to almost every employer. Like the Wisconsin Child Labor laws, the FLSA has very detailed requirements as to the hours a minor can work per day and week and acceptable occupations. More information can be found on the Department of Labor Website.

The FLSA allows minors of any age to do the following:

  • Work in businesses entirely owned by their parents, with certain restrictions for mining jobs, manufacturing jobs and hazardous workplaces
  • Perform in television, movies, theater or radio
  • Perform babysitting or other household chores in a private home
  • Work as homeworkers to gather evergreens and make evergreen wreaths

 

Now that we ave some information as to what constitutes a child labor violation, let’s go back to the bakery example. The owners of The Mixing Bowl seem to hold the view that Wisconsin Law shouldn’t apply, and rather that the federal law that allows for minors to work for business owned entirely by their parents should govern. However, where two bodies of law are at issue and conflict, the more restrictive laws will need to be followed. So, here, where Wisconsin is more restrictive, just following the federal law will not allow the bakery to escape liability.

In determining whether The Mixing Bowl may have an issue under Wisconsin or Federal law, the first question would be, are the children working? Without information as to what they are actually doing in the bakery, this is a tough question to answer. Are the children milling about in the store and chatting with customers? Perhaps tossing a fallen napkin on occasion because they are responsible cleaners? Or, are they being directed to do certain work-like activities? If the latter, than they are likely working. The article states that “a number of the kids help to do everything from making pies to serving customers in the bakery.”

This much is clear: the employment of any minor under the age of 11 in any situation is prohibited by Wisconsin law, whether the minor’s parents own the business or not, and the type of employment permitted for 11-year old individuals is restricted to work as a football ball monitor. So, if any of the children in the bakery are “making pies” or “serving customers” than it is highly likely that the children are working which means that the bakery is in violation of Wisconsin law.

 

In many situations, whether or not and how much a minor can work in a particular industry for a particular business is difficult to determine. Anyone with questions regarding child labor issues should contact Attorney Leslie Elkins or Attorney Jessica M. Kramer at kewlaw.com.