Is a school always required to issue a work permit 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 a work permit uses the word “may,” which is permissive, and, therefore, does not require the work permit to be granted (EC 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 work permit to every eligible minor.
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 (LC 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.
However, under federal law (29 CFR Section 570.121), Certificates of Age are required for all employed minors under the age of 18 which may be satisfied with the top portions of the work permit application (CDE Form B1-1) (5 CCRSection 10120.1).
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 may issue a work permit if the minor enters the attendance area from another state within ten days or less before the end of the school term. The minor may be issued a work permit to work full-time because he/she is exempted from school attendance for the remainder of the school term (EC Section 48321). However, out-of-state student residents still must have been abiding by the California compulsory attendance laws within the school of attendance.
The requirement for a work permit issuance is that the minor resides in the district that issues the work permit. The minor does not have to be a California resident, be enrolled in the school, or reside with parents (EC Section 49110).
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 is not permitted to sanction violation of those laws by issuing a work permit. 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 (EC sections 48264, 48293, and 49112).
Is a parent/employer required to obtain a work permit for his/her child who works for the family business?
Yes. A work permit is required for minors employed regardless of relationship. However a work permit is not required when the parent or guardian is disciplining or training their child in the family business and financial pay is not received (EC Section 49141).
Exemptions are allowed for agricultural or domestic work performed on land that is owned, operated, or controlled by the parents (LC Section 1394).
Does a parent/employer have to provide Workers' Compensation Insurance for his/her children/employees?
Yes. Workers' Compensation Insurance must be provided for all employees regardless of whether the employee/minor is the employer’s child (LC 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 for an emancipated minor is that he/she may apply for a “Permit to Employ and Work” without a 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-Certificate of Age" (FCSection 7050[e][16]). "Emancipated minor" is defined in FC Section 7002.
In the interest of expediency, may a school issue a blank “Permit to Employ and Work” (CDE Form B1-4) 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 work permit must be returned completed to the school (ECsections 49162 and 49163). Then only the school has discretion to issue a work permit, and the school’s lawfully authorized work permit issuer (EC Section 49110) shall 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 DLSE that the California 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.
All governmental agencies are subject to FLSA and shall follow all child labor provisions, including having a Certificate of Age to verify permissible employment (29 CFR Section 212). California issues Certificates of Age using the “Statement of Intent to Employ a Minor and Request for a Work Permit - Certificate of Age” (CDE Form B1-1) to provide proof of age (EC Section 49114).
However, a charter school is not considered a school district, nor could it be considered a governmental entity. Many times, charter schools are run by private entities or nonprofit entities comprised of elected or appointed board members. Therefore, minors employed by a charter school are not exempt for the work permit require.
How can it be determined whether a minor is an independent contractor or an employee?
To be classified as an “independent contractor,” the person needs to be licensed or certificated in a particular expertise, and have specialty skills, and the service is not offered through the employer. This excludes a minor from Independent Contracting employment.
A work permit is only issued to minors who have an employer and they are accepting the responsibilities of the minor as their employee.
According to the DLSE, employers oftentimes improperly classify their employees as “independent contractors” so that they, the employer, do not have to pay payroll taxes, minimum wage, overtime, or comply with other wage and hour law requirements such as providing meal periods and rest breaks, or reimburse their workers for business expenses incurred in performing their jobs. Additionally, employers do not have to cover independent contractors under Workers’ Compensation Insurance, and are not liable for payments under unemployment insurance, disability insurance, or social security. The definition and requirements of independent contractors eliminates minors for employment.
What process should be followed to issue a work permit?
The minor/student, after obtaining a promise of employment, shall obtain the "Statement of Intent to Employ a Minor and Request for a Work Permit - Certificate of Age" (CDE Form B1-1) from the school.
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’s authorized work permit issuer shall verify all information on the work permit to be issued. If all requirements are met, the authorized work permit issuer may issue the work permit (CDE Form B1-4).
The local school district or school 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 issuer would need to verify the student’s GPA.
Does the school have any discretion to limit the minor's work activity?
Yes. As a condition of issuance, the local district, school, or work permit issuer may reduce maximum work hours and impose additional occupational restrictions not specified in statute or regulation. The authorized work permit issuer does not have discretion to extend hours beyond the maximum specified in statute or waive any occupational restrictions specified in statute or regulation.
When school is in session, when would a 16 or 17 year-old be permitted to work full-time (40 hours per week)?
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 up to eight hours per day on Tuesday (a day preceding a non-school day), Wednesday, Thursday, Friday, Saturday, and Sunday as long as the minor does not exceed 40 hours per week (ECsections 49112, 49116, 49130, 49131, 49132, and 49133; LC Section 1391).
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May a 16 or 17 year-old actually work 48 hours in a week while school is in session?
Yes. Minors who are employed in personnel attendance occupations or enrolled into a Work Experience Education, or cooperative vocational education program, are authorized to work up to 48 hours per week (EC Section 49116; LCSection 1391.1).
When may a 14 to 16 year-old be issued a full-time work permit?
A full-time work permit may be issued to a minor 14 to 16 years of age when a diploma of graduation from the prescribed elementary is held, and one of the following circumstances exist: (1) the parent or guardian of the minor child presents a sworn statement that the parent or guardian of the minor is incapacitated for labor through illness or injury, or that through the death or desertion of the father or mother of the minor, the family is in need of the earnings of the minor and that sufficient aid cannot be secured in any other manner; (2) the minor is unable to reside with his or her family and the earnings of the minor are necessary for the support of the minor; and (3) the minor is residing with a foster care provider, or guardian receiving foster care funds for the minor, if the provider or guardian obtains written authorization from the minor’s social worker, probation officer, or child protective services worker acting as an officer of the court. A work permit may be issued to a minor who is subject to this paragraph only if the child’s case plan documents that the purpose of the employment is to further the goal of emancipation pursuant to Part 6 (commencing with Section 7000) of Division 11 of the FC, or to enable the minor to gain knowledge of necessary work skills and work habits, and of the responsibilities related to maintaining employment. The person issuing the work permit shall sign a statement that he or she, or a competent person designated by him or her, has investigated the conditions under which the application for the work permit has been made and has found that, in his or her judgment, the earnings of the minor are necessary for the family to support the minor or that the earnings of the minor are necessary to support the minor, and that sufficient aid cannot be secured in any other manner. Before issuing a work permit to a minor who is subject to circumstance (3), the person issuing the work permit shall sign a statement that he or she has received authorization from the minor’s social worker, probation officer, or child protective services worker. A minor who applies for a work permit pursuant to this section shall be duly enrolled in a Work Experience Education program (EC Section 49130).
A full-time work permit issued to a minor 14 to 16 years-old shall expire no later than the end of the current school year (EC Section 49130).
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May a 14 or 15 year-old work during the school day?
No. While school is in session, an employer shall not employ a minor 14 or 15 years of age for more than three hours in any day, nor more than 18 hours in any week, nor during school hours. However, students that are enrolled in and employed in a school-supervised and school-administered work experience and career exploration program may be employed for no more than 23 hours per week, any portion of which may be during school hours (EC Section 49116).
What is a "school day" and what does "school in session" mean?
A minimum school day 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 school day, and work hours may be increased on such days even though the minor receives instruction on that day (EC sections 46141 and 46142; LC 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 Independent Study Program (ISP) or an approved Work Experience Education program (EC 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 school day. Independent study programs are defined instructionally in the California 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.
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 85 percent of the minimum wage rounded to the nearest nickel."
Can a work permit be issued to a minor for “sign waving” or curb-side advertisement?
Sign waiving is unauthorized for 14 and 15 year olds only (29 CFR Section 570.33). Even though sign waiving is not restricted by statues for 16 and 17 year olds, numerous regulations emphasize that no minor shall be employed in any occupations dangerous to the life or limb, or injurious to the health or morals of the minor (LC Section 1294; 29 CFR Section 570.71).
Can a work permit be issued to a minor who is employed in a private home?
This depends on the type of home employment. The DLSE shall issue an Industrial Home-Workers Permit for the reasons of manufacturing goods in the home (LC sections 2650 and 2660). All industrial Home-Worker employment sites shall be free of infectious, contagious, or communicable disease, and shall be clean, sanitary, and free from infectious, contagious, or communicable disease (LC Section 2661).
When do minors who are employed by a parent or guardian require a work permit?
The only exclusions to a work permit for parent/guardian employment is when the minor is employed in agriculture, horticulture, viticulture, or domestic labor on or in connection with the property the parent or guardian owns, operates, or controls (LC Section 1394). All other occupational employments are subject to the requirement of a work permit.
Are work permits required during the summer?
Yes. According to California Labor Code Section 1299 and Education Code Section 49160, work permits are required for California working minors.
Labor and education codes apply during all seasons and times of year, even during the summer months or school breaks.