New DOL Guidance On Civil Penalties For Child Labor Violations

New DOL Guidance On Civil Penalties For Child Labor Violations

On January 20, 2010, the Department of Labor’s Wage and Hour Division (WHD) issued a Field Assistance Bulletin that provides guidelines to determine when an assessment of child labor civil money penalties under the Fair Labor Standards Act (FLSA) will be assessed against employers, as well as the amounts of any penalty. The new guidelines only apply to injuries that occurred after May 20, 2008. The Bulletin also addresses the Child Labor Enhanced Penalty Program (CLEPP) created by the WHD to incorporate changes implemented by the Genetic Information Nondiscrimination Act (GINA) to the child labor penalty provisions. The Field Assistance Bulletin outlines three classes of injuries and the resulting penalties for each class.

A. Definitions

1. CLEPP Serious Injury

A “CLEPP serious injury” is an injury caused by a child labor violation, and that involves a permanent loss or substantial impairment of one of the five senses or the permanent loss, permanent paralysis or substantial impairment of the function of a specified body part. The assessment of whether an injury results in a permanent or substantial impairment takes into account the totality of the injury, including the nature and degree of the impairment, the potential for recovery, the recovery time, the impact of the injury on the minor’s daily life, the prognosis, and evaluations of the degree of impairment. As the degree of impairment increases, the duration that is necessary for the impairment to qualify as substantial decreases. Thus, a cut or abrasion that impairs a youth's ability to bend his or her knee for one week will not rise to the level of a substantial impairment because the injury is neither significant nor long-lasting, while a puncture or laceration that results in numbness and curtailed use of a youth's hand for several months may be deemed to have substantially impaired the youth's sense of touch. Even if an injury is expected eventually to heal with no lasting effects, it may qualify as a substantial impairment under CLEPP if the impairment lasts for a significant period of time, or it has a significant, albeit temporary, impact.

A CLEPP serious injury or death requires a direct causal relationship between the labor violation and the serious injury or death of the minor employee. Causation may be established if the death or serious injury occurs when the youth is employed in a workplace specifically listed by the Secretary of Labor to be hazardous, such as a manufacturing plant, a saw mill, or a coal mine. Accordingly, if a 16-year-old youth falls to his or her death while employed in a coal mine, for example, the violation will be deemed to have caused the death because work in a coal mine is inherently dangerous.

2. Non-CLEPP Serious Injury

A “Non-CLEPP serious injury” is an injury that requires the care of a medical practitioner beyond the initial treatment or curtails the youth's normal activities (school, work, sports) for at least five days and which does not meet the definition of a “CLEPP serious injury” because it did not involve the permanent loss, permanent paralysis, or substantial impairment of one of the senses or a specified body part; or was not directly cause by the child labor violation.

For example, a 14-year-old fry-cook who is operating a deep-fat fryer that is not equipped with mechanisms that automatically raise and lower the baskets out of the hot oil in violation of Child Labor Regulation No. 3 suffers a first degree burn that covers a significant portion of his or her forearm. The burn requires a physician's care for at least one week and/or the minor loses a week of work. This injury qualifies as a Non-CLEPP serious injury.

3. Nonserious Injury

A “nonserious injury” means any injury that requires treatment no more extensive than first aid and results in the youth missing school or work, or having his or her normal activities curtailed, for less than 5 days. The term first aid means any one-time treatment. Such one-time treatment is considered first aid even though provided by a physician, registered professional personnel, or an employer.

B. Civil Penalties

A civil penalty of $50,000 will be assessed for each child labor violation that causes the death of a minor employee. The initial assessment amount may be doubled up to $100,000 per violation if the child labor violations are determined to be willful or repeated.

A civil penalty of $15,000, $25,000, or $40,000 generally will be assessed for each child labor violation resulting in a CLEPP serious injury not resulting in the death of a minor employee. The penalties can be increased up to $100,000 if the violations are determined to be willful or repeated.

A civil penalty of $6,000, $8,000, or $10,000 generally will be assessed for each child labor violation resulting in a Non-CLEPP serious injury of a minor employee. The amount of the penalty depends on the seriousness of the injury. The initial penalty can be increased up to $11,000 per violation if the violations are determined to be willful or repeated.

A maximum civil penalty of $11,000 can be assessed against an employer when a minor employee suffers a nonserious injury at work.

These civil penalties generally may be reduced depending on the size of the employer’s business and the number of employees. However, reductions are not permitted if the violation resulted in the death of a minor employee, if the original assessment was $40,000 or more, if multiple child labor violations were involved, if the violations were willful or repeated, or if the employer falsified or concealed child labor violations.