Is a school always required to issue a "Permit to Employ and Work" (B1-4) to an eligible minor?
No. It is solely within the discretion of the school district to determine whether a minor, who is still subject
to the state’s compulsory education laws, may obtain a work permit and, therefore, be employed to work.
Each
of the laws governing the issuance of work permits uses the word “may,” which is permissive, and, therefore, does
not require the permit to be granted (Education Code Section 75). If the statutes had used the word “shall,”
which means issuance is mandatory, then the school would not have discretion and would have to issue a permit to every eligible
minor (Education Code sections 49110, 49111, 49112, 49113, 49114, and 49130).
Does a high school graduate, or a minor who has passed the California High School Proficiency Exam, need a work permit?
No. Once a minor is no longer subject to the state’s compulsory education laws, he/she is not considered
a minor for purposes of the state’s child labor laws and is not required to obtain a work permit (Labor Code
Section 1286[c]). California’s compulsory school attendance law requires a person to attend school until he/she is eighteen
years of age or has graduated from high school or has passed the High School Proficiency Examination.
Federal
law does not have a similar exception, and occupational restrictions may still apply. Under federal law an employer would
still need a certificate of age for the student when employing a high school graduate under eighteen years of age. The school
may issue a work permit as a certificate of age, but other forms of identification are also accepted as proof of age (Education
Code Section 49114).
May a minor have more than one work permit?
Yes. A minor may work concurrently for
more than one employer and, therefore, have more than one valid work permit. But, regardless of the number of employers and
work permits, the total number of hours worked may not exceed the total number of hours allowed by law.
May a minor who is not a California resident or not enrolled in the school district be issued a work permit?
Yes. The local school district may issue a work permit if the minor enters the attendance area from another
state within 10 days or less before the end of the school term. The minor may be issued a permit to work full-time because
he/she is exempted from school attendance for the remainder of the school term (Education Code Section 48321).
The only requirement for work permit issuance is that the minor resides in the district that issues the permit. The
minor does not have to be a California resident or be enrolled in the school, or reside with parents (Education Code
Section 49110).
Any minor wishing to work in California must adhere to the state’s work standards and regulations,
even if not a permanent or full-time resident of California (Labor Code sections 1286 and 1299).
May a truant or "dropout" be issued a work permit?
No. A truant or "dropout"
is in violation of California’s compulsory school attendance laws and a school district is not permitted to sanction
violation of those laws by issuing a permit to work. A truant or "dropout" is subject to arrest, and the parents
are subject to infraction fines if the minor is found working without a work permit (Education Code sections 48264,
48293, and 49112).
May an expelled minor be issued a work permit?
Yes. The law does not prohibit issuing
a work permit to an expelled minor. An expelled minor must be provided educational services. Options include, but are not
limited to, community day school, juvenile court school, another school district, etc. When the expelled minor enrolls in
and attends school, only the district in which the minor resides may issue -or refuse to issue -the work permit (Education
Code sections 48915, 48915.01, 48915.1, 48915.2, and 48926).
Is a parent/employer required to obtain a work permit for his/her child who works for the family business?
Yes. Work permits are required for all minors employed in manufacturing, mercantile, or similar commercial
enterprises (Education Code Section 49141). Exemptions are allowed for agricultural or domestic work performed on
land that is owned, operated, or controlled by the parents (Labor Code Section 1394). All regulations concerning
hazardous occupations and other work forbidden to minors remain in effect for minor children working for their parents.
Does a parent/employer have to provide workers' compensation insurance for his/her children/ employees?
Yes. Workers' compensation insurance must be provided for an employee regardless of whether the employee/minor
is the employer’s child. Exceptions may be made for an employer who has been given permission by the Department of Industrial
Relations to be self-insured (Labor Code sections 3700 and 3701).
Does an emancipated minor need a work permit to be employed?
Yes. The only exception
from child labor and compulsory school attendance laws enjoyed by an emancipated minor is that he/she may apply for a work
permit without the parent’s permission. An emancipated minor may sign, in place of the parent, the "Statement of
Intent to Employ Minor and Request for Work Permit" (form B1-1 or B1S-1 prescribed by the California Department of Education
pursuant to Education Code Section 49162 and as stated in Family Code Section 7050[e][16]). "Emancipated
minor" is defined in Family Code Section 7002.
In the interest of expediency, may a school issue a blank permit to a minor and, when he/she secures employment, have
the employer complete the necessary forms?
No. A school must never issue a blank work permit.
The fully completed "Statement of Intent to Employ Minor and Request for Work Permit" (form B1-1 or B1S-1) must
be returned to the school district (Education Code sections 49162 and 49163). Only the school district has discretion
to issue a work permit, and the district’s lawfully authorized agent (Education Code Section 49110) must complete
all conditions as to its issuance.
Must a public school or other governmental agency require a work permit for an employee/minor?
No.
It is the position of the California Division of Labor Standards Enforcement that the state's Labor Code does
not apply to a state or local agency unless the agency is expressly included in the statute. The child labor statutes do not
expressly include state or local agencies.
State and local agencies are subject to the federal Fair Labor Standards
Act and must follow all of its child labor provisions, including having a certificate of age to verify permissible employment
(California Code of Federal Regulations, Title 29, Section 212). Contact the Wage and Hour Division of the
U.S. Department of Labor for further information. (See Appendix A of the Work Permit Handbook for the telephone number.)
How can it be determined whether a minor is an independent contractor or an employee?
For
purposes of workers' compensation, Labor Code Section 3351 defines "employee" generally as "every
person in the service of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral
or written."
Labor Code Section 3353 defines "independent contractor" generally as "any
person who renders service for a specified recompense for a specified result, under the control of his principal as to the
result of his work only and not the means by which such result is accomplished."
The Labor Commissioner considers
many factors in determining independent contract status. Those factors include, but are not limited to:
Control of work conditions and schedules
Supervision
Training
Pay
Integration
Hours of work
Where work is done
Order of tasks
Investment in facilities or equipment
Work
supplies
Working for more than one firm
Business distinct from employer
For a determination of whether
a worker is an independent contractor or an employee, contact the local office of the Department of Industrial Relations,
Labor Standards Enforcement Division. (See Appendix A of the Work Permit Handbook for the address.)
Who may issue work permits?
Education Code Section 49110 specifies that only the
following persons may issue work permits:
Superintendent of any local public
school district in which any minor resides; or
Superintendent of county schools if the
minor resides in a portion of a county not under the jurisdiction of the superintendent of a school district; or
Person holding a services credential with a specialization in pupil personnel services authorized, in writing,
by the superintendent (see Appendix B of the Work Permit Handbook for a template of a letter); or
Work
Experience Education teacher/coordinator authorized, in writing, by the superintendent (see Appendix B of the Work Permit
Handbook for a template of the letter); or
Person authorized, in writing, by the superintendent
if the designated person is not available, and delay in issuing a permit would jeopardize the ability of the pupil to secure
work; or
Person authorized, in writing, to issue work permits if the superintendent is
absent from the district and the district does not employ a person holding the necessary credential or a Work Experience Education
teacher/coordinator.
The Division of Labor Standards Enforcement (DLSE)
issues all entertainment industry permits. Inquiring parents or employers must be referred to the nearest DLSE office. (See
Appendix A of the Work Permit Handbook for the locations.)
May a private school issue work permits to its students?
Yes. At the discretion of the superintendent
of the public school district, a private school may be authorized, in writing, to issue work permits for its students. (See
Appendix C of the Work Permit Handbook for a template of the letter to authorize a qualified person to issue the permit.)
The person authorized to issue work permits must be knowledgeable about federal and state labor laws affecting minors and
the work permit issuance process (Education Code Section 49110.1).
May a work permit be issued by the public school to a pupil who attends a private school located within the school
district boundaries, even though the pupil is not a resident of the school district?
Yes.
The California Department of Education, Deputy General Counsel's office, has found that, pursuant to written authorization
from the superintendent of the public school district, a work permit may validly be issued for such a pupil.
Further,
the findings indicated that the intent of Education Code sections 49110 and 49110.1 was not to restrict, on the basis
of legal residence, the authority to issue work permits, but rather to consider the school district in which the pupil attends
school.
May the local school issue a work permit for a child who is under school age?
No.
A child under school age is probably being employed in the entertainment industry. In such a case, permission to work must
be issued by the State Labor Commissioner through the Department of Industrial Relations, Department of Labor Standards Enforcement
(Education Code sections 48225, 48225.5, and 49111; Labor Code sections 1308.5, 1308.6, and 1308.7).
What process should be followed to issue a "Permit to Employ and Work" (form B1-4)?
The
minor/student, after obtaining a promise of employment, must obtain the "Statement of Intent to Employ Minor and Request
for Work Permit" (form B1-1 or B1S-1) from the school/school district. The minor must complete the "minor"
section, request that the employer and parent complete their sections (making certain to obtain both required signatures),
and then return the completed form to the appropriate school authority.
The school authority must verify the minor/student’s
date of birth and the type of work permit to be issued. If all requirements are met, the work permit issuing authority may
issue the "Permit to Employ and Work."
The local school district has discretion to impose additional
requirements for the issuance of a work permit. For instance, the school district may have a policy requiring the minor to
maintain a 2.0 grade point average (GPA). In such a case, the work permit issuing authority would need to verify the student’s
GPA. Another policy might require the minor to exhibit his/her social security card for verification by the school authority.
Other local policies should be verified through the work permit issuing authority.
Must the work permit issuing authority use only school records to verify the date of birth on the work permit application
form (form B1-1 or B1S-1)?
No. The date of birth may be verified by using a birth certificate,
baptism certificate, or a passport in lieu of school records. When there are no available official documents, an affidavit
by the parents or legal guardian may suffice (Education Code Section 49133).
If school records are not
used, a photocopy of the age verification document should be attached to the school's copy of the work permit.
Does a student have to present his/her social security card to school authorities when applying for a work permit?
No. The statement of intent to employ (form B1-1 or B1S-1) must contain, among other information, the name,
address, telephone number, and social security number of the minor (Education Code Section 49163). The statute does
not specify that the card itself must be presented, only that the number be on the application for a work permit.
The California Department of Education maintains that the statement (form B1-1 or B1S-1) signed by the parent or legal guardian
("I hereby certify that . . . the information herein is correct and true") holds the adult responsible for providing
accurate information.
School districts may be more restrictive and require the monitor to provide the social security
card for purposes of verification before the work permit is issued.
May a work permit be issued for a minor who is being "home schooled"? Isn't a "home school"
the same as a private school? When a noncredentialed parent is teaching his/her own child using a correspondence course or
other type of course, may the child be issued a work permit?
Education Code Section
49110 authorizes school district officials to issue work permits to eligible students. Education Code Section 49110.1
authorizes the school district superintendent to designate a private school official (see Appendix C) to issue work permits
to students who are enrolled in a private school pursuant to Education Code Section 48222. It is the exclusive responsibility
of the school district to decide, under district criteria, whether the private entity is a private school as described in
Education Code Section 48222. The same determination would be made regarding a parent who teaches exclusively his
or her own child or children and who files a private school affidavit pursuant to Education Code Section 33190. School
officials seeking further guidance should consult their district’s legal counsel.
Does the school have any discretion to limit the minor's work activity?
Yes.
As a condition of issuance, the local school/school district may reduce maximum work hours and impose additional occupational
restrictions not specified in statute or regulation. The work permit issuing authority does not have discretion to extend
hours beyond the maximum specified in statute or waive any occupational restrictions specified in statute or regulation.
For example, sixteen and seventeen year-olds are permitted to work up to 48 hours a week during the school year (Labor
Code Section 1391). Most schools, however, impose a weekly limit that ranges between 20 and 36 hours per week while school
is in session. (See charts in Chapter 2 of the Work Permit Handbook).
When school is in session, a sixteen or seventeen year-old is permitted to work up to 48 hours a week; 4 hours on
school days; and 8 hours on non-school days and days preceding a non-school day. May a sixteen or seventeen year-old actually
work 48 hours in a week while school is in session?
Yes. Federal law defines a week that
"school is in session" as a week in which school is scheduled for one day. An example might be the week during which
Thanksgiving is celebrated.
A school might be in session only on Monday and Tuesday. The minor could work eight
hours per day on Tuesday (day preceding a non-school day), Wednesday, Thursday, Friday, Saturday, and Sunday. Monday would
be the day off. In that example, the student would have worked 48 hours while school was in session (Education Code
sections 49112 and 49116; Labor Code Section 1391).
May a fourteen or fifteen year-old work during the school day?
No. A fourteen or fifteen
year-old is limited to eighteen hours per week when public school is in session. All work hours must be outside the scheduled
public school day. An exception is made for students enrolled in Work Experience Education or career exploration programs;
these students may work up to 23 hours per week and, if appropriate, during the hours school is in session. (See charts in
Chapter 2 of the Work Permit Handbook.)
What is a "schoolday" and what does "school in session" mean?
A
minimum schoolday in any high school or junior high school is defined as any day in which the minor is scheduled to attend
school for 240 minutes. Anything less does not qualify as a schoolday, and work hours may be increased on such days even though
the minor receives instruction on that day (Education Code sections 46141 and 46142; Labor Code Section
1391).
Exemptions to the 240-minute standard are for students who attend evening high school, a regional occupational
center, opportunity classes, a continuation high school, late afternoon or Saturday vocational training programs conducted
under a federally approved plan for vocational education, and for students enrolled in an approved Work Experience Education
program (Education Code Section 46141). In addition, students in grades eleven and twelve who attend a college or
a university part-time are exempt from a full 240-minute minimum day.
Continuation high schools are required to
have a 180-minute schoolday. Independent study programs are defined instructionally in the Education Code, but there
are no regulations concerning "seat time."
State law has no definition of "school in session"
but the federal government defines the term as any week in which the public school for the county is in session for at least
one day. (See “Hours of Work” in Chapter 2 of the Work Permit Handbook.)
Private schools must also
adhere to public school calendars, hours when school is in session, regulations and related labor laws when issuing work permits
(form B1-4).
How long do copies of work permits have to be retained?
The school district must
retain a copy of the work permit application (form B1-1 or B1S-1) and work permit (form B1-4) until the end of the fourth
year after the work permit was issued. Those files may be retained on a computer disk(s) and, if requested, can be printed
for examination (California Code of Regulations, Title 5, Section 16026).
The employer must retain the
minor’s work permit until the beginning of the fourth year after the permit was issued (Labor Code sections
1174 and 1299).
Does a minor working in a restaurant attached to a casino on an Indian reservation need a work permit?
There is no definitive answer to this question. Each situation must be dealt with on a case-by-case basis.
Who has jurisdiction? The state or federal government? Is the casino run by the tribe or an outside entity? Who is the employer?
Is the work area restricted to the restaurant or do the minors serve meals in the casino? Is the restaurant distinctly separate
from the casino (e.g., separated by a door) or is it part of the gaming area? Contact your regional office of the California
Division of Labor Standards Enforcement with questions about specific situations. (See Appendix A of the Work Permit Handbook.)
May an entry-level employee be paid less than the minimum wage?
Yes. The Industrial
Welfare Commission Orders of 2001 state that "employees during their first one-hundred sixty (160) hours of employment
in occupations in which they have no previous similar or related experience, may be paid not less than eighty-five percent
(85 percent) of the minimum wage rounded to the nearest nickel."
On January 1, 2001, when the minimum wage
was increased to $6.75 per hour, the "Learners" wage became $5.75 per hour.
When is a student considered a trainee or a volunteer, not an employee?
The Fair Labor Standards
Act (FLSA) applies to any person involved in an employer-employee relationship. The FLSA is administered by the U.S. Department
of Labor, Wage and Hour Division, with respect to private employment, state and local government employment, and other agency
employment. (Code of Federal Regulations, Title 29, Section 204.)
The mere knowledge by an employer of
work done for him/her by another is sufficient to create the employment relationship under the FLSA. The U.S. Department of
Labor has always considered work performed as part of an evaluation or training program to be compensable.
Whether
a trainee or student is an employee under the FLSA will depend on all of the circumstances surrounding the activities on the
premises of the employer. A student is not required to be paid if he/she is a trainee, a volunteer, or donates labor to a
school (e.g., in-school placement).
Trainee
The trainee/student is NOT an employee within the
meaning of the FLSA if all six of the following criteria apply to the situation:
The
training, even though it includes actual operation of the employer's facilities, is similar to that which would be given
in a vocational school (i.e., a curriculum is followed and the student is under continued and direct supervision either by
representatives of the school or by employees of the business).
The training is intended
to benefit the trainee/student rather than to meet the labor needs of the business.
The
trainee/student does not displace a regular employee, does not fill a vacant position, does not relieve an employee of assigned
duties, and does not perform services that, although not ordinarily performed by employees, clearly are of benefit to the
business.
The employer that provides the training derives no immediate advantage from
the activities of the trainee/student and, on occasion, the employer’s operations may actually be impeded.
The trainee/student is not necessarily entitled to a job at the conclusion of the training period.
The employer and the trainee/student understand that the trainee/student is not entitled to wages for the
time spent in training.
Examples of unpaid training include the following
situations:
In a hospital: The student job-shadows a nurse by following and observing the
nurse.
In a supermarket: The student does simulated work with other students and/or the
teacher: rings-up baskets of groceries, makes change, learns assorted transactions and returns groceries to the shelves.
In an office: The student enters worthless data on a company computer that is not used to conduct business.
Volunteer
Commercial
businesses may never legally utilize unpaid volunteers.
An individual may serve
as unpaid volunteer for public service or for religious or humanitarian objectives. Typically authorized volunteer sites include
established volunteer programs operated by charitable nonprofit organizations, governmental agencies, hospitals, and nursing
homes. A student may be provided opportunities to participate in meaningful educational activities or programs. For example,
a student may choose to assist with school fund-raisers, deliver meals to the homebound, visit patients in nursing homes,
or solicit contributions.
A student may be considered to be a "volunteer" within
the meaning of the FLSA if the intent is clearly to donate his/her services for the public good. Schools may not legally require
a student to "volunteer" or perform unpaid public service as a way to gain vocational experience, as a condition
of graduation, or as a prerequisite for other school activities. Only the courts may require or commit persons to perform
unpaid public service work as part of a correctional program, in lieu of serving prison time, or while in a work-release program.
A person employed by a religious, charitable, governmental, or nonprofit organization
is not allowed to "volunteer" the same type of services (any activity directly related to the job) during the weeks
employed.
Examples of volunteers:
The student chooses
to participate voluntarily at the city's established zoo volunteer program.
The student
volunteers as a "Candy Striper" to donate some spare time in helping patients in a hospital.
In-School Placement
As part of the overall educational program,
schools may permit or require a student to engage in various school-related work programs in the school district for periods
of no more than an hour per day (or an equivalent amount of overall time).
Examples of in-school placement are
as follows:
The student helps in the school lunchroom for periods of 30 minutes to
one hour per day.
The student performs minor clerical work in the school office or library.
Application of the Fair Labor Standards Act to School-Related Programs
Do all of the following criteria apply to the individual student's placement
at a business establishment?
(The six criteria should be used to determine whether students have to be paid and
Federal Labor Standards Act (FLSA) child labor laws apply. Answer yes or no to each question listed below)
The training, even though it includes actual operation of the employer's facilities, is similar to that
which would be given in a vocational school (i.e., a curriculum is followed and the student is under continued and direct
supervision either by representatives of the school or by employees of the business.
The
training is for the benefit of the trainee or student; such placement is not made to meet the labor needs of the business.
The trainee or student does not displace a regular employee, does not fill a vacant position,
does not relieve an employee of assigned duties, and does not perform services that, although not ordinarily performed by
employees, clearly are of benefit to the business.
The employer providing the training
derives no advantage from the activities of the trainee or student and, on occasion, the employer's operations may actually
be impeded.
The trainee or student is not necessarily entitled to a job at the conclusion
of the training period.
The employer and the trainee or student understands that the trainee
or student is not entitled to wages for the time spent in training.
If you
answers YES to all six criteria, the individual student is NOT an employee within the meaning of the FLSA. Wages are not required.
If you answered NO to any of the six criteria, either the business or the school system must
compensate the student worker; both parties are jointly responsible for compliance with labor laws.
