The new Genetic Information Nondiscrimination Act ("GINA") has received a great deal of publicity since President Bush signed it into law on May 21, 2008. GINA prohibits discrimination against individuals, in employment and in health care, on the basis of their genetic make up. The employment provisions of GINA go into effect in November 2009 (18 months after the President signed the bill) and GINA's provisions concerning group health plans become effective in May 2009. Many employers are aware that GINA's employment provisions will prohibit an employer from discriminating against an individual in the hiring, firing, compensation, terms or privileges of employment on the basis of genetic information of the individual or a family member of an individual (as family member is defined by the statute). What many employers are unaware of, however, is that GINA also addresses employers' child labor law obligations because GINA amended the federal Fair Labor Standards Act ("the FLSA") to create more stringent penalties for employers' violations of child labor laws.
Specifically, GINA:
- Amended the FLSA to provide that employers may be penalized up to $50,000 for the death or serious injury of any employee under 18 years old. This penalty may be doubled if the violation is a repeated or willful violation. A "serious injury" is now defined under the FLSA as:
- Permanent loss or substantial impairment of one of the senses (sight, hearing, taste, smell, tactile sensation
- Permanent loss or substantial impairment of the function of a bodily member, organ, or mental faculty, including the loss of all or part of an arm, leg, foot, hand or other body part; or
- Permanent paralysis or substantial impairment that causes loss of movement or mobility of an arm, leg, foot, hand or other body part.
- Raised the maximum penalty for other violations of child labor rules from $10,000 per worker to $11,000 per worker.
- Increased the maximum civil penalty for the willful violation of the FLSA's minimum wage and overtime provisions from $1,000 per violation to $1,100 per violation.
As a result of GINA's provisions and the resulting changes to the FLSA, the stakes are higher than ever for employers who employ minors. The federal Department of Labor had proposed increased penalties to deter dangerous conduct, and the Department of Labor's Wage and Hour Division has publicly noted that it is pleased with the fact that these FLSA penalties are now raised. In addition to complying with FLSA requirements, employers must also be cognizant of, and follow, any applicable state child labor law requirements. The New Hampshire Department of Labor has vigorously pursued child labor law violations and implemented penalties. As a practical matter, GINA's amendment of the FLSA provides an excellent impetus for employers to review their current wage and hour practices and verify their compliance with child labor laws, such as restrictions on types of occupations minors can engage in, hours of work and permission to work.
This article is intended to serve as a summary of the issues outlined herein. While it may include some general guidance, it is not intended as, nor is it a substitute for, legal advice. Your receipt of Good Company or any of its individual articles does not create an attorney-client relationship between you and Sheehan Phinney Bass + Green or the Sheehan Phinney Capitol Group. The opinions expressed in Good Company are those of the authors of the specific articles.
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