Kramer, Elkins & Watt

Can my minor child work at my business?

Can my minor child work at my business?

ferrero-rocher-cheesecake

This KEW Tip was originally published in the Spring of 2017, and has been updated as of August 2021 due to changes in the law.

 

Mixing Bowl Drama 

On April 25, 2017, the Mixing Bowl Bakery, in Sauk City, Wisconsin was under fire for accusations of violations of child labor laws. The bakery was owned by Curtis and Vickie Eberle, a couple with nine children, many of whom worked with them at the Mixing Bowl. At the time the article came out, the kids ranged 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: http://www.channel3000.com/news/family-owned-business-disputes-child-labor-laws/461027984

 

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 let’s first 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. 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[1]:

  • 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. Note, before 2019, minors were required to use caddy carts, but this has been changed.
  • 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[2]. 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[3]. 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.

 

Big 2019 Update

As of the date this KEW Tip was originally written, in Spring 2017, the Mixing Bowl owners petitioned their legislature and eventually obtained a change in the law. Previously, the rules regarding minors working did not have the following carve out, and I determined back in 2017 that the mixing bowl owners would be violating Wisconsin law. However, the following was made law in 2019[4]:

 

Unless specifically prohibited by Section 103.65 of the Wisconsin Statues, which prohibits certain work by minors related to dangerous activities, minors of any age may be employed under the direct supervision of the minor’s parent or guardian in connection with the parent’s or guardian’s business, trade or profession.

This update is closer to Federal law, which is as follows.

 

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, https://www.dol.gov/whd/childlabor.htm

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

  • Work in businesses entirely owned by a parent, or person acting as a parent, with certain restrictions for mining jobs, manufacturing jobs and hazardous workplaces[5]
  • 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

 

Conclusion

As can plainly be seen by the text of the Wisconsin law now, in effect since 2019, minors may be employed under direct supervision of their parent or guardian. What is interesting about the wording of the Wisconsin statute is that it doesn’t specify that the minor need be working for a business owned by the parent or guardian, but rather can just work under the parent or guardian’s supervision.

In contrast, the FLSA specifies that minors can work in business entirely owned by their parents, or parent-like figure, but doesn’t allow work for a non-parent owned business.

Another difference between the two statutes is that under the Wisconsin statute, the minor needs to work for a “parent or guardian” whereas under the FLSA a minor may work for a parent or “person standing in place of a parent.” This difference suggests that the Wisconsin statute is more stringent because a guardian is a legally defined term in Wisconsin showing certain rights and responsibilities a person has to make decisions for a child.

Where two bodies of law are at issue and conflict, the more restrictive laws will need to be followed. So, here, Federal law is more restrictive with regards to ownership of a business, but Wisconsin law is more stringent with regards to the definition of the person under whom a minor may work.

Taking both of these minor work carve out rules together, a minor may work for business owned by a parent or guardian, under direct supervision of said parent or guardian, so long as such work is not related to mining, manufacturing or other another hazardous workplace.

 

Questions? – Contact KEW

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 a KEW attorney by calling 608-709-7115 or sending an email to .

 

 

References

[1] Wis. Stat. §103.67

[2] DWD § 270.12

[3] DWD § 270.11; Wis. Stat. § 103.68

[4] Wis. Stat. §103.67(2)(g)

[5] (29 CFR 570.126)