Yes, indeed—the labor market is tight. And with the nationwide unemployment rate below 4 percent, 263,000 new jobs created in April 2019, and a sizzling economy, the labor market is likely to get even tighter. This is especially true for the hospitality industry, which has traditionally relied upon a steady stream of lower-skilled and younger applicants eager to enter into the job market. In fact, the National Restaurant Association predicts that jobs in the food service industry will top 15 million in 2019, and lists recruiting and retaining employees among the top challenges for operators.

Yet, just 19 percent of 15- to 17-year-olds had jobs in 2018, and 58 percent of 18- to 21-year-olds had jobs, according to a Pew Research Center study published in November 2018. This is significantly down from years past. The cause of this trend is difficult to predict. Whether parents are not pushing their kids to enter the workforce, or there are too many other extracurricular activities to occupy their time, one thing is certain: younger workers are not as eager to pick up a part-time job, even at the local eatery that is begging for help.

Legal Roadblocks Also Complicate Hiring

Federal and state laws can also deter hiring anyone who is under 18 years of age. Under the federal Fair Labor Standards Act (FLSA), there are regulations that preclude employees who are 16 and 17 from performing certain job duties, such as operating power-driven machines like mixers and meat processors, and delivering food via automobile. Another layer of federal regulations applies to 14 and 15-year-olds, which significantly restricts the number of hours that can be worked during a day and workweek, particularly during the school year. If you are skeptical, check out “Fact Sheet #2A: Child Labor Rules for Employing Youth in Restaurants and Quick Service Establishments Under the Fair Labor Standards Act (FLSA)” on the U.S. Department of Labor’s website.

State laws also serve as a bugaboo to employing minors, and these laws can vary greatly from state to state. One example is in Louisiana, where additional rules and regulations for employing require that all minors (defined as under 18 years of age) to have a 30-minute uninterrupted work break within every five hours of employment. A failure to comply with this requirement will subject the employer to a significant fine.

Time To Get Creative

So, what can Mr. Joe at Big Eats do to increase applicant flow and hire more employees at his stores? We told Mr. Joe that one idea is to increase his starting wage and increase benefits, which he did not want to hear. The fact is, however, many competitors for this part of the workforce (such as big-box retailers) have increased their starting wages well above minimum wage in order to attract applicants.

A quick Google search offers other examples of how employers are creatively trying to solve this workforce problem. From utilizing mobile apps that allow employees to swap shifts at the last minute when conflicts arise, to allowing employees to express their opinions on branding of the products being sold, to handing out recruiting cards to customers who visit the establishment, to offering bonuses to employees who recruit other employees to join the company, to teaming up with AARP to recruit and hire older workers—it is clear that creative thinking gives employers a distinct advantage.

Need another example? Look no further than the Louisiana Restaurant Association’s Education Foundation (LRAEF), which is tackling the workforce issue head on. The LRAEF is a major supporter of the nationwide ProStart program, a two-year program for high school students teaching culinary techniques and management skills that are specifically tailored to the food service industry. Today, there are 56 Louisiana high schools and almost 2,000 Louisiana high school juniors and seniors participating in the program.

According to Wendy Waren, the Vice President of Communications for the LRA, “The LRAEF provides school support grants to purchase ingredients for labs, testing materials, and for field trips. The high school students also participate in the Raising Cane’s ProStart Invitational, held yearly at the New Orleans Convention Center, and that event provides the students with a chance to show their skills and compete for $1.2 million in scholarships. ProStart is a comprehensive program and it is a great way to get our young people interested in the food service industry. We hope they will discover that there are exciting and fulfilling career opportunities in the industry. While employing teens may present challenges, hiring ProStart students will make the challenge worth it given their advanced training.”

Conclusion

So, our advice to Mr. Joe at Big Eats? In addition to suggesting that he may want to look at raising his starting wage and offering additional benefits, he will have to get creative in his search for more applicants and good employees.

Yes, the labor market is tight. But, by partnering with a local restaurant association, using technology and social media, and just generally letting the creative juices flow, even Mr. Joe will be able to find and retain the elusive employees that he so desperately needs.

For more information, contact the authors:

Steven Cupp – Partner, Gulfport office | New Orleans office
SCupp@fisherphillips.com
(228.822.1440)

Steve Cupp is a partner in the firm’s Gulfport office. He has experience across a range of industries, including manufacturing, financial services, construction, and retail.

He has devoted his practice to representing management interests in various areas of labor and employment law, including traditional labor litigation before the National Labor Relations Board (NLRB), handling Department of Labor (DOL) wage and hour audits, and litigation of Fair Labor Standards Act (FLSA) cases.

Steve is certified as a Senior Professional in Human Resources from the Human Resource Certification Institute and he is an active member of the Society for Human Resource Management.

Jaklyn Wrigley – Of Counsel Gulfport Office
JWrigley@fisherphillips.com
(228.822.1440).

Jaklyn Wrigley is a high-energy labor and employment law litigator who exclusively represents the interests of management. Over the years, she has achieved countless employer-friendly results, recently in the form of a full defense verdict in a complicated he-said/she-said sexual harassment lawsuit.  Jaklyn is committed to providing the highest level of service, and in this “24/7” client service business, she recognizes that near-fanatical responsiveness is often as critical as innovative and quality legal representation.  She prides herself in offering both. These efforts have been recognized, and Jaklyn has been selected for inclusion in Mississippi Super Lawyers – Rising Starsevery year since 2013.

Practicing in both Mississippi and Florida state and federal courts, as well as before administrative agencies, Jaklyn has extensive experience with the alphabet soup of federal labor and employment laws: ADA, ADEA, FLSA, FMLA, NLRA OSH Act, and Title VII; and litigation involving immigration issues, wrongful termination, and breached employment agreements.   In her practice, Jaklyn applies a laser focus on the healthcare industry, and understands the interplay between and among healthcare compliance issues, the medical staff, and employment law. She also actively represents clients in the retail, gaming and hospitality, agriculture, and auto dealer industries (among others). Jaklyn has made a point to learn the business environments in which her clients operate so that she can offer advice that is specifically tailored to their needs.

When she is not litigating on behalf of her clients, Jaklyn is working diligently to help her clients avoid legal problems. This is particularly true as it concerns sexual harassment, gender identity, sexual orientation and gender equity issues in the workplace.  From internal audits, management training and employee contracts, to handbook reviews and practical day-to-day advices, Jaklyn believes the easiest problem to solve is one that never arises in the first place.

“An owner, lessee, or occupant of land may be liable for injury to a child caused by a highly dangerous artificial condition on the land if:
(1) the place where the artificial condition exists is one upon which the owner, lessee, or occupant knew or reasonably should have known that children were likely to trespass;
(2) the artificial condition is one that the owner, lessee, or occupant knew or reasonably should have known existed, and that the owner, lessee, or occupant realized or should have realized involved an unreasonable risk of death or serious bodily harm to such children;
(3) the injured child, because of the child’s youth, did not discover the condition or realize the risk involved in intermeddling with the condition or coming within the area made dangerous by the condition;
(4) the utility to the owner, lessee, or occupant of maintaining the artificial condition and the burden of eliminating the danger were slight as compared with the risk to the child involved; and
(5) the owner, lessee, or occupant failed to exercise reasonable care to eliminate the danger or otherwise protect the child”

Tx Civ Prac & Rem § 75.007 (c)

One of the most common examples of attractive nuisance cases is in the case of swimming pools. In Florida, drowning is the leading cause of death for children between the ages of 1-4 years. Nationally, according to the CDC, about 1 in 5 who die from drowning are minors: 14 and under. See https://www.cdc.gov/homeandrecreationalsafety/water-safety/waterinjuries-factsheet.html. After an incident involving a minor and accidental drowning, parents may have claims for negligence, wrongful death, and attractive nuisance. In general, innkeepers have a duty to take reasonable steps to minimize dangers within their control. It follows; many states require operators of public pools to maintain signage around pool areas.

Defenses

After a claim involving minor children, a landowner must respond to the plaintiff’s proof of the elements of the prima facie case that are applicable to a general negligence action. When it can, he/she should challenge applicability of statute or ordinance that was allegedly violated.

On the issue of comparative negligence, depending on the child’s age, some states will consider the child’s own negligence. Additionally, it is essential that the issue of proximate causation is properly assessed. This includes an analysis on the cause of injuries including the action or inaction on the part of the minor’s parents.

Other important topics in the handling of claims involving minors include knowing jurisdictional requirements involving minors such as: age of reason, negligence standards applicable and resolution requirements and thresholds.

Waiver and Releases

Although waivers and releases are very common, there are some factors that will affect the legal effectiveness of waivers & releases involving minors including:

• Existing Statutory Scheme (state laws)
• Prior Case Law in State
• Case Law From Other States or Jurisdictions
• Issues Relating to “drafting”

Hazardous Occupations – Sorry, No Can Do.

Federal law strictly prohibits the employment of minors in non-agricultural work falling within any of the USDOL’s list of hazardous occupations. These occupations include, but are not limited to, manufacturing or storing explosives, driving a motor vehicle, work as an outside helper on motor vehicles, coal mining, firefighting, power-driven tools, exposure to radioactive substances, and many more. According to recent reports, the USDOL might relax these restrictions; however, creating and implementing these changes will take time. For at least this year, employers should assume the status quo.

Restrictions Based on Age – Uh, Let Me Get My Matrix.

The good news is that, while the hazardous occupations can be tedious to evaluate sometimes, these are the only federal child labor restrictions that apply to 16- and 17- year olds. At the other end of the spectrum, the analysis can be simpler because anyone under age 14 can do little more than babysit on a casual basis. The options expand for minors 14- or 15- years old though.

Children that are 14- and 15-years of age generally can perform tasks such as office and clerical work, intellectual or artistically-creative work, cashiering, and stocking shelves. They also can perform limited food service work, maintenance work (buildings or grounds), and, in some instances, lifeguarding, running errands, and washing vehicles, among other things. Even so, for this group employers must be mindful not just of the type of work, but of the hours.

For example, federal law only allows the employment of 14- and 15- year olds in non-agricultural work pursuant to specific total-hour and time-of-day restrictions. These can be difficult to apply given that school sessions vary widely, including that some cross into the summer months or go “year round”. At bottom, the main factor when it comes to scheduling work will be whether the particular day is a school day. For big picture purposes (such as hiring), however, it is often best to begin with whether the local public school will be out of session for the relevant workweeks.

Best Practices

Beefing up your staff for the summer season is a welcomed relief for many employers. Additionally, summer jobs expose youth to tangible skills that foster independence and the ability to gain valuable work experience. Nevertheless, before hiring minors, consider all that you’ve read. The FLSA’s child labor restrictions are heavily enforced and management bears the burden of abiding by these rules. So, before diving into the deep end of summer recruitment, employers should consider the following tips:

Get and preserve a USDOL-sanctioned age certificate. If you hire an individual who turns out to be younger than you thought, the USDOL will not be influenced by the fact that the worker “looked” older or that you were misled about the worker’s age. To avoid misjudging a minor’s age and violating the child-labor regulations, obtain a qualifying age certificate even if not required (state law).

Clearly outline the job duties associated with vacant summer-job occupations. Do not rely on a job title when determining if an occupation includes prohibited work. Dig deeper and consider the actual job duties. Many times employers mistakenly assume a role is permitted based on its title when, in actuality, the activities carried out in this position are prohibited. Carefully review both the permitted and prohibited work, especially before hiring an individual under 16 years of age.

Inform employees of the specific tasks each minor-worker should not perform. Train management on what tasks can and cannot be assigned to minor-workers. Memorialize this training by distributing a memorandum clearly indicating the child labor limitations for each minor-employee. Consider also informing other employees who will interact with the minor, and perhaps even the minor.

Ensure each youth-employee is properly supervised. Be attentive when employing minors. One suggestion is to implement a mentor/mentee system where a seasoned worker is assigned a minor-employee to supervise. This can assist management with alleviating the task of micro-managing your summer staff.

The Bottom Line

This is only a general summary of the FLSA’s child labor restrictions and, because of more restrictive state laws, federal law might only be the tip of the iceberg. At a minimum, an employer should review its hiring and employment practices with respect to minors, and implement a process to ensure compliance with the FLSA and any other applicable state laws. Should you have additional questions, contact your Fisher Phillips attorney.