Agriculture production is labor intensive, requiring farmers to employ workers to assist them with numerous tasks. To protect workers and set standards for employment, numerous federal and state laws have been passed. In addition, specific laws have been passed in regard to employment of individuals under the age of 18. Federal and North Carolina state laws regarding child labor often exempt agricultural employers, making it difficult for agricultural employers to determine what standards they must adhere to. This topic page sets out the laws that North Carolina agricultural employers must follow regarding employment of minors.
Fair Labor Standards Act (FLSA), 29 U.S.C. §§201-219.
The FLSA specifies requirements for child labor and differentiates standards for children working in hazardous and non-hazardous conditions. The FLSA also sets standards for wages, overtime pay, hours of employment, and other issues that may affect a child’s education or safety.
Wage and Hour Act, N.C.G.S. § 95-25.5
The Wage and Hour Act was enacted to establish North Carolina standards for wages, hours of labor, payment of wages, and employment standards for youth. While the Wage and Hour Act generally governs youth employment in North Carolina, it provides an exemption for agricultural employers.
What is NC’s Wage and Hour Act and does it apply to me?
NC’s Wage and Hour Act sets standards for employment in North Carolina and mirrors many of the federal standards in the Fair Labor Standards Act, including employment of minors. Agricultural employers are exempt from the minimum wage, overtime, youth employment, and record keeping sections of NC’s Wage and Hour Act but are still subject to the standards set out in the FLSA. N.C.G.S. § 95-25.14(a)(2). To determine if you are an “agricultural” employer and therefore exempt from the standards in NC’s Wage and Hour Act you must use the definition of agriculture provided in the FLSA.
The FLSA defines “Agriculture” as including:
“farming in all its branches and among other things includes the cultivation and tillage of the soil, dairying, the production, cultivation, growing, and harvesting of any agricultural or horticultural commodities (including commodities defined as agricultural commodities in section 1141j(g) of Title 12), the raising of livestock, bees, fur-bearing animals, or poultry, and any practices (including any forestry or lumbering operations) performed by a farmer or on a farm as an incident to or in conjunction with such farming operations, including preparation for market, delivery to storage or to market or to carriers for transportation to market.” FLSA. 29 U.S.C. Â§ 203(f).
Must minors obtain a work permit before employment?
Employees under the age of 18 are usually required to obtain a work permit but agricultural employees under the age of 18 are not required to obtain a work permit. N.C.G.S. § 95-25.14(a)(2).
Are there laws regarding the age of a minor and what type of employment they may engage in?
A parent may employ their own child on a farm that they operate or own at any time for any type of employment. For individuals who will employ minors who are not their own children the chart below outlines by age when and what types of employment a minor can be engaged in:
Can work anytime including during school hours and may also work in jobs considered hazardous.
|Can only work outside of school hours and in jobs not considered hazardous.
FLSA, 29 U.S.C. § 213(c)(1).
|Can work outside of school hours with parental consent or can work on a farm where the minor's parents are also employed.
FLSA, 29 U.S.C. § 213(c)(1).
|Can be employed by the minor's own parents on a farm that the parents own or operate or may be employed with parental permission on a farm where employees are exempt from the Federal minimum wage provisions.
FLSA, 29 U.S.C. § 213(c)(1).
Under 12, Waiver
FLSA states that a waiver of the Child Labor provision (section 12) may be obtained for employement of minors under the age of 12. FLSA, 29 U.S.C. § 213(c)(4)(A).
In a 1980 court case, the Dept. of Agricutlure was stopped from issuing such waivers. See National Ass'n of Farmworkers Organizations v. Marshall, 628 F.2d 604 [D.C. Cir. 1980].
How much am I required to pay youth employees?
Youth employees must receive the federally set minimum wage rate. Under the FLSA a newly hired employee under the age of 20 may be paid a rate lower than minimum wage during the first 90 days of employment. FLSA, 29 U.S.C. § 206(g)(1-4). While generally the minimum wage rate must be paid to all employees, agricultural employers are exempt from paying the standard minimum wage rate if one of the following conditions applies:
- The employer did not use more than 500 man-days of agricultural labor in the preceding year. A man-day is any day where an agricultural employee performs one hour or more of work;
- if the employee is the parent, spouse, child, or other member of his employer's immediate family;
- if the employee is employed as a hand harvest laborer and is paid on a piece rate basis in an operation which has been, and is customarily and generally recognized as having been, paid on a piece rate basis in the region of employment, (ii) commutes daily from his permanent residence to the farm on which he is so employed, and (iii) has been employed in agriculture less than thirteen weeks during the preceding calendar year;
- if the employee is sixteen years of age or under and is employed as a hand harvest laborer, is paid on a piece rate basis in an operation which has been, and is customarily and generally recognized as having been, paid on a piece rate basis in the region of employment, (ii) is employed on the same farm as his parent or person standing in the place of his parent, and (iii) is paid at the same piece rate as employees over age sixteen are paid on the same farm; or
- if such employee is principally engaged in the range production of livestock. FLSA 29 U.S.C. § 213(a)(6).
Are there limits to the number of hours that minors may work?
Youth workers are subject to the same maximum hour standards that adult workers are subject to under the FLSA. Agricultural employees are however exempt from the maximum hour provisions of the FLSA under certain conditions. The exemptions for the maximum hours regulations are the same exemptions that apply to the minimum wage section. Please see preceding answer for specific exemption language. FLSA, 29 U.S.C. § 213(a)(6).
Is overtime pay required for youth employees?
Youth employees are subject to the same standards of adult employees in regard to overtime pay. If an employee works over forty hours they must be paid an additional amount for time worked in excess of forty hours. All time over forty hours must be paid at a rate of one and one-half times the pay rate they receive. FLSA, 29 U.S.C. § 207(a)(1). Employers who hire employee’s for work in tobacco do not have to pay the overtime rate if the employee:
"is employed by such employer-
(A) to provide services (including stripping and grading) necessary and incidental to the sale at auction of green leaf tobacco of type 11, 12, 13, 14, 21, 22, 23, 24, 31, 35, 36, or 37 (as such types are defined by the Secretary of Agriculture), or in auction sale, buying, handling, stemming, redrying, packing, and storing of such tobacco,
(B) in auction sale, buying, handling, sorting, grading, packing, or storing green leaf tobacco of type 32 (as such type is defined by the Secretary of Agriculture), or
(C) in auction sale, buying, handling, stripping, sorting, grading, sizing, packing, or stemming prior to packing, of perishable cigar leaf tobacco of type 41, 42, 43, 44, 45, 46, 51, 52, 53, 54, 55, 61, or 62 (as such types are defined by the Secretary of Agriculture); and
(2) receives for--
(A) such employment by such employer which is in excess of ten hours in any workday, and
(B) such employment by such employer which is in excess of forty-eight hours in any workweek,
(C) compensation at a rate not less than one and one-half times the regular rate at which he is employed.
An employer who receives an exemption under this subsection shall not be eligible for any other exemption under this section.” FLSA, 29 U.S.C. Â§ 207(m)(1).
May minor employees operate a vehicle as a part of employment?
Employees under the age of 17 may not drive automobiles or trucks on public roadways. 17 year old employees may drive on public roadways only under the following conditions:
- during daylight hours only
- if the employee has a valid driver’s license for the type of driving that will be done
- if the employee has no record of a moving violation at the time of hire
- if the employee has successfully completed a State-approved driver education course
- the automobile has a seat belt and any passengers and the employer has instructed the employee that seat belts must be used
- the automobile does not exceed 6,000 pounds of gross vehicle weight
- driving does not involve the towing of vehicles, route deliveries or route sales, the transportation for hire of property, goods, or passengers, urgent, time-sensitive deliveries, more than two trips away from the primary place of employment in any single day for the purpose of delivering passengers, or driving beyond a 30 mile radius from the employee’s place of employment
- driving must be occasional and incidental to the employee’s employment. Occasional and incidental means no more than 1/3 of an employee’s worktime in any workday and no more than 20% of an employee’s worktime in any workweek.
FLSA, 29 U.S.C. § 213(c)(6)(A-G).
What is considered a hazardous job?
he following activities are considered dangerous and not suitable as an employment activity for minors under the age of 16:
- Operating a tractor of over 20 power-take-off (PTO) horsepower, or connecting or disconnecting an implement or any of its parts to or from such a tractor.
- Operating or assisting to operate (including starting, stopping, adjusting, feeding or any other activity involving physical contact associated with the operation) any of the following machines:
- corn picker, cotton picker, grain combine, hay mower, forage harvester, hay baler, potato digger, mobile pea viner;
- feed grinder, crop dryer, forage blower, auger conveyer, or the unloading mechanism of a nongravity-type self-unloading wagon or trailer; or
- power post hole digger, power post driver, or nonwalking type rotary tiller.
- Operating or assisting to operate (including starting, stopping, adjusting, feeding, or any other activity involving physical contact associated with the operation) any of the following machines:
- trencher or earthmoving equipment;
- potato combine; or
- power-driven circular, band, or chain saw.
- Working on a farm in a yard, pen, or stall occupied by a:
- bull, boar, or stud horse maintained for breeding purposes;
- a sow with suckling pigs, or a cow with a newborn calf (with umbilical cord present).
- Felling, bucking, skidding, loading, or unloading timber with butt diameter of more than 6 inches.
- Working from a ladder or scaffold (painting, repairing, or building structures, pruning trees, picking fruit, etc.) at a height of over 20 feet.
- Driving a bus, truck, or automobile when transporting passengers or riding on a tractor as a passenger or helper.
- Working inside:
- a fruit, forage, or grain storage designed to retain an oxygen deficient or toxic atmosphere;
- an upright silo within 2 weeks after silage has been added or when a top unloading device is in operating position;
- a manure pit; or
- a horizontal silo while operating a tractor for packing purposes.
- Handling or applying toxic agricultural chemicals (including cleaning or decontaminating equipment, disposal or return of empty containers, or serving as a flagman for aircraft applying such chemicals). Such toxic chemicals are identified by the word “poison,” or “warning,” or are identified by a “skull and crossbones” on the label.
- Handling or using a blasting agent, including but not limited to, dynamite, black powder, sensitized ammonium nitrate, blasting caps, and primer cord; or
- Transporting, transferring, or applying anhydrous ammonia.
Children under the age of 16 may engage in hazardous employment activities if they engage in such activities on a farm owned or operated by their parents. U.S. Department of Labor Child Labor Bulletin 102.