Employing minors on New York and New Jersey farms
Many rural and suburban youth experience their first paid employment on a farm. Attorney Michael Harrington, Ford Harrison Law, said hiring factors vary by state and depend on age, whether school is in session and what kind of work teens are allowed to do. There are federal restrictions on certain activities, and some states go beyond federal law to prohibit certain activities.
“Federal law in all cases of employment sets the floor,” said Harrington. “No state can allow what federal law prohibits.” Federal law states those 18 and older can do any job in agriculture. Youth 14 to 15 can work in ag but only in non-hazardous jobs. Youth ages 12 to 13 can work only if a parent has given written permission and only in non-hazardous jobs. It’s permissible for 12- to 13-year-olds to work on farms where a parent is working.
Proof of age is an important factor with teen employment. Federal law requires employers to maintain records of date of birth for all minors. “This is probably something you would satisfy from one of your other obligations, such as an I-9 form,” Harrington said. “A passport, a driver’s license, will identify the person’s age.” If those items are unavailable, a birth certificate can be used.
Federal limits for work time allowed focuses on whether school is in or out of session. There are generally no restrictions for teens 16 and older, but if youth are younger than 16 and school is in session, only three hours per day can be spent working (for a total of 18 hours/week). When school is not in session (closed for the calendar week), those 16 and older can work eight hours per day (up to 40 hours/week).
Federal law plays a significant role in identifying what types of jobs are considered presumptively hazardous such that a minor (under 16) is not allowed to work them. However, there are exceptions if the parents own the farm or if the job is in connection with vocational education training program.
Several occupations deemed “hazardous” for teens are identified by the Department of Labor. According to the DOL, youth under 16 may not operate a tractor with more than 20 PTO horsepower and may not connect or disconnect implements to such a tractor. They may not be involved with the operation, including stopping/starting, adjusting or any physical contact with machinery such as a hay mower, power post-hole digger, power post driver or non-walking rotary tiller. Youth under 16 may not operate any power-driven saws or chainsaws.
Additional restrictions for youth under 16 include no work from a ladder or scaffold taller than 20 feet for any purpose (such as painting, pruning or picking fruit). They are not allowed to work inside a fruit or grain storage structure designed to retain an oxygen-deficient atmosphere, an upright silo within two weeks after silage has been added or when a top unloading device is in operating position, a manure pit or packing a horizontal silo. Operating an elevator or driving automobiles or trucks, even on the property, are not permitted for individuals under 16.
Some states allow for some deviation in rate of pay, as does federal law. “If you’re going to pay less than minimum wage,” Harrington said, “double check to see if that is permitted by your state law. Federal law does allow less than minimum wage for individuals under age 20, but only for the first 90 days of their employment.” Employers who deviate from paying minimum wage should make sure it’s allowed by the state and track the time period.
If a minor lives in one state and works in different nearby state, Harrington said what counts is where the work is performed. In some cases, state or local taxes may be a factor to consider. For farms that straddle two states, he advised looking at the rules for both states and complying with the most conservative.
Harrington said New York State sets certain times individuals can work depending on whether school is in session. Individuals under 14 may not be employed regardless of school, but they can hand-harvest berries, fruits or vegetables. Those over age 14 may work after school hours and during vacations within agriculture. Youth ages 16 and 17 who are not attending school can work full-time.
“New York has a specific farm work permit for minors who are 14 or 15,” said Harrington. “If you were to have someone younger than 14 doing one of the limited hand-harvest activities, make sure you keep the employment certificate in the personnel file.” Employers who are uncertain about the age of someone can request a certificate of age, which can be issued from a school if the individual has no other way of proving their age. The certificate should be kept in the location where the youth is working – a copy in the main personnel file and another on the worksite. “The individual minor is supposed to keep the permit in their possession at all times,” he said.
Regarding work hours, New York has specific limitations regarding hours per day of work, total hours worked in a week and the number of days in a week an individual can work. Because children may only work within certain parameters, their schedule must be posted to ensure compliance.
New Jersey has a working paper requirement for those under age 18, and Harrington said it’s not the employer’s responsibility to obtain this paperwork. Employers should provide an offer letter on the farm business letterhead indicating the position you are offering so the potential employee can take it to school and secure working papers.
In New Jersey, 12- and 13-year-olds can be employed on farms, in gardening, nursery work, livestock and forestry. The key is determining whether someone in that age group is capable of following directions to remain safe depending on the activity and level of supervision.
New Jersey specifies prohibited products minors cannot work with. While the list is specific to New Jersey, Harrington said it’s a good idea in any state to not allow minors to work with pesticides, explosives, toxic and hazardous substances, injurious quantities of toxic or noxious dust, gases, vapors or flames, corrosive materials, highly flammable substances and certain paints.
Minor employees may not work on certain machines in New Jersey, including power-driven woodworking machinery, dough brakes or mixing machines in bakeries, corn pickers, power driven hay balers, power field choppers, circular saws, band saws or guillotine shears. Minors under 16 may use standard appliances and office machines, but not power-driven machinery such as power tools or power lawn mowers.
“Hiring minor employees is great and some are very enthusiastic having their first job,” said Harrington. “As an employer, think in terms of scheduling those employees in a way that doesn’t violate any state rules or that they don’t engage in activities they are not permitted to – mostly active machinery.”
by Sally Colby
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