The U.S. Department of Labor (DOL) Wage and Hour Division has issued a final rule to revise the Fair Labor Standards Act as it pertains to workers under age 18. It will place a few more restrictions on tasks that cannot be performed by 16- and 17-year-olds working in construction but leaves in place, for now, an exemption for 16- and 17-year-old apprentices and student learners.
An April 17, 2007, an Advanced Notice of Proposed Rulemaking had outlined a plan to adopt new Hazardous Occupational Orders (HOs) that would have removed the current exemption for 16- and 17-year-old apprentices and student learners that allows them to work in construction, as recommended by a 2002 National Institute for Occupational Safety and Health (NIOSH) report. AGC of America submitted comments protesting the planned change, noting, among other items, both the importance of apprenticeship, pre-apprenticeship, and training programs to the future of the construction industry and the lack of hard data on the occupational illness, injury and fatality rates among 16- and 17-year-old apprentices and student learners.
In issuing the final rule, DOL called NIOSH's rationale for its recommendations, "vague" or "not provided." The DOL made it clear that while there may be future changes to the exemptions, "it is important to consider and develop criteria for determining when apprenticeship and student-learner exemptions are appropriate." DOL further noted that such criteria must be consistent with the established national policy of balancing the benefits of employment opportunities for youth with the most effective safety protections, and that it is considering creating new HOs.
AGC will continue to work with DOL both to protect the safety and health of all construction industry workers as well as to ensure youths' continued access to apprenticeship and training programs.
The final rule also:
- Expanded work tasks deemed safe for 14- and 15-year-olds to include sales, clerical, and clean-up work. However, it left in place the ban on youths under 16 working in construction. The only exception would be for office or sales work that is not performed on a construction job site (e.g., a 14-year-old could file papers at a construction company's main office, but not at a job site trailer.)
- Incorporates a 2008 amendment that substantially increased the maximum permissible civil money penalty an employer may be assessed for child labor violations that cause the death or serious injury of a young worker.
- Revises HO 7 both to remove an exception and expand the types of power-driving hoisting equipment minors are forbidden to use.
- Revises HO 14 to expand the prohibition on band saws, circular saws, and guillotine shears to include chain saws, reciprocating saws, wood chippers, and abrasive cutting discs, no matter what material is being cut.