H. B. 2554


(By Delegates Compton, Leach, Hunt and Manuel)

[Introduced February 17, 1995; referred to the

Committee on Industry and Labor then the Judiciary.]





A BILL to amend and reenact article six, chapter twenty-one of the code of West Virginia, one thousand nine hundred thirty- one, as amended, relating to the regulation of the employment of minors; making legislative findings; defining terms; establishing the minimum age for employment; establishing standards for when and where minors may work; prohibiting minors from working in hazardous occupations; allowing certain minors to work as volunteer firefighters under proper supervision; requiring employers to keep time records; establishing the procedure for the issuance, amendment and revocation of work permits; prohibiting discrimination; and providing for enforcement and prescribing penalties for violations.

Be it enacted by the Legislature of West Virginia:
That article six, chapter twenty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted to read as follows:
ARTICLE 6. CHILD LABOR.
§21-6-1. Legislative findings.
The Legislature finds that:
Preparing children for employment in a global economy requires a strong commitment to their basic education, and that employers and parents should cooperate to ensure that work experiences do not detract from educational experiences.
Employers must take additional precautions to protect the health and safety of working children since children do not have a developed appreciation for the dangers that might be present in the workplace.
It is in the best interest of all the citizens of this state to promote education leading to greater employment opportunity, and to protect the health and safety of working children.
Therefore, it is the purpose of this article to ensure that children are not admitted to employment before an appropriate minimum age, and that the employment of children does not interfere with either their education or their health or safety.
§21-6-2. Definitions.
(a) "Minor" means an individual under the age of eighteen years, unless that individual has received a high school diploma or a passing score on the General Educational Development examination, or is an individual sixteen years or older enrolled in any registered state or federal apprenticeship program.
(b) "Employer" is any person, firm or corporation who employs, permits or suffers a minor to work.
(c) "Employ," "employment," and "employed" mean any work engaged in, permitted or suffered with or without compensation in money or other valuable consideration, whether paid to the minor or some other person, including work as servant, agent, subagent or independent contractor. This definition does not include uncompensated community-based work, such as fund-raising for community, school, religious or civic organizations.
(d) "Domestic labor" means any occasional, irregular, or incidental nonhazardous activity related to and in or around private residences, including babysitting, petsitting and similar household chores, and manual yardwork. Industrial homework is specifically excluded from this definition.
(e) "School is in session" means any day or week when normal classes are held during the regular school year in the school district.
(f) "School hours" means that period during the day when the student is required to be in school in the school district.
(g) "Violation" means breach of this article. A separate violation occurs for each day the violation continues for each individual minor.
(h) "Citation" means a list of all violations found as the consequences of any single investigation of an employer undertaken in accordance with the provisions of this article.
(i) "Division of labor" or "division" means the state division of labor.
(j) "Commissioner" means the commissioner of the division of labor.
§21-6-3. Minimum age for employment.
No minor under the age of fourteen years shall be employed, permitted or suffered to work, except in domestic labor.
§21-6-4. Employment standards for minors fourteen and fifteen years of age.

Minors fourteen and fifteen years of age shall not be employed, permitted or suffered to work:
(a) During school hours;
(b) More than three hours per school day or more than fifteen hours per week when school is in session, except for domestic labor;
(c) More than six hours per nonschool day, or more than thirty hours per week when school is not in session;
(d) More than five consecutive days;
(e) Before seven a.m. or after seven p.m., except during school summer holidays, or summer holiday equivalents at year- round school, during which time they may not be employed after nine p.m.;
(f) In or around cooking, baking, grilling or frying;
(g) In or around any hazardous occupation, except such minors may be employed, suffered or permitted to work:
(1) By his or her parent or legal guardian, on a farm owned or operated by that parent or legal guardian; or
(2) With the written consent of his or her legal guardian, on the same farm upon which that parent or legal guardian is employed.
§21-6-5. Employment standards for minors sixteen and seventeen years of age.

(a) Minors sixteen and seventeen years of age shall not be employed, permitted or suffered to work:
(1) During school hours, unless proof of the following is provided at the time of application for a work permit required by this article:
(A) The minor is enrolled in an education plan, approved by the board of education of the county in which the minor resides, that includes a work experience component or cooperative education program that requires work during school hours; or
(B) Has an early school release approved by the principal of the school which the minor attends, which release must be renewed each grading period;
(2) More than four hours per school day or more than twenty hours per week when school is in session, except for domestic labor;
(3) More than eight hours per nonschool day, or more than forty hours per week when school is not in session;
(4) More than six consecutive days;
(5) Between the hours of ten p.m. and seven a.m. on a day preceding a school day, except for domestic labor;
(6) Between the hours of eleven p.m. and seven a.m. on a day that does not precede a school day, except for domestic labor;
(7) In or around any hazardous occupation, except such minors may be employed, suffered or permitted to work:
(A) By his or her parent or legal guardian, on a farm owned or operated by that parent or legal guardian; or
(B) With the written consent of his or her legal guardian, on the same farm upon which that parent or legal guardian is employed.
(b) The foregoing restrictions do not apply to minors sixteen and seventeen years of age who are named as a parent on a birth certificate, or are named as a spouse on a certificate of marriage, and are contributing to the support of that child or spouse.
§21-6-6. Hazardous occupations.
Minors shall not be employed, permitted or suffered to work in, or in connection with, the following industries, jobs and work sites, except such office or sales work, which is performed in an area physically separate from where prohibited activity is conducted:
(a) Mining, manufacturing, industrial, construction and other related businesses, including:
(1) Manufacturing or processing industries, including any duties in work places where manufacturing or processing activities are taking place;
(2) Mining or quarry work;
(3) Construction, including roofing, demolition or repair;
(4) Excavating;
(5) Logging;
(6) Milling, including sawmills, lathe mills, shingle mills or cooperage stock mills;
(7) Furnaces, foundries, forging shops, or in any other place in which the heating, melting or heat treatment of metals is carried on;
(8) The manufacture or storage of explosive or articles containing explosive components;
(9) Warehousing and storage; and
(10) Public and private utilities and related services;
(b) Jobs posing risk to the health and safety of minors, including:
(1) Jobs involving the operation, setup, adjustment, oiling, cleaning or repairing of any power-driven machinery, including agricultural machines, slicers, woodworking machines, saws, shears, balers, shredders, compactors, hoists, metal punches or shears, or bakery machines: Provided, That this prohibition does not include the operation of office machines, such as typewriters, duplicators, computers, facsimile or adding machines;
(2) Jobs involving slaughtering, meat packing, rendering, poultry, fish or seafood processing;
(3) Industrial homework, including telemarketing, mail processing, data processing, textile or apparel manufacturing or jewelry making;
(4) Jobs related to the manufacture of brick, tile and associated products;
(5) Jobs involving working on elevated surfaces, including scaffolds and ladders;
(6) Security positions, or any job requiring the carrying or use of a firearm or other weapon;
(7) Door-to-door sales;
(8) Jobs involving the transportation of people or property by rail, highway, air, water, pipeline or other means;
(9) Loading or unloading goods or materials from transport vehicles or conveyors;
(10) Jobs involving driving, riding or working on motor vehicles; including flagger or helper;
(11) Jobs involving driving, riding or working on or around farm machinery while in operation, including tilling, planting, harvesting, cutting, chopping, baling or loading feed conveyors:
(12) Jobs involving the loading, mixing, handling, applying of or working around any fertilizer, herbicide, fungicide, pesticide, insecticide or any chemical. Reentry time to the workplace for minors coming into contact with any such product shall be at least twice the reentry time required for adults;
(13) Jobs involving the use or handling of heavy metals;
(14) Jobs involving the handling or storage of blood, blood products, body fluids or body tissues;
(15) Jobs involving medical or other hazardous wastes;
(16) Jobs which may expose minors to radioactive substances or radiation;
(17) Trapping or poisoning pests;
(18) Harvesting, whether by hand or otherwise, involving the use of sharp cutting instruments;
(19) Jobs involving the cold rolling of heavy metal stock, metal plate bending machines, or power-driven metal planning machines; and
(20) Messenger or delivery services;
(c) Work sites posing risk to the health an safety of minors, including:
(1) Freezers or coolers, except incidental retrieval of goods and materials from freezers or coolers equipped with operable safety existing systems and alarm systems and which do not require the use of protective clothing or equipment; and
(2) Boiler or engine rooms.
§21-6-7. Volunteer firefighters.
A minor between the ages of sixteen and eighteen years who has completed the minimum training requirements of the West Virginia University fire service extension firefighter training section one, or its equivalent, and who has the written consent of his or her parent or legal guardian may be employed or elected as a member of a volunteer fire department to perform fire- fighting functions: Provided, That no such minor shall be permitted to operate any fire-fighting vehicles, enter a burning building in the course of his or her employment or work or enter into any area determined by the fire chief or fireman in charge at the scene of a fire or other emergency to be an area of danger exposing the child to physical harm by reason of impending collapse of a building or explosion. The minor shall, at all times, be under the immediate supervision of a fire line officer.
§21-6-8. Time records.
In addition to other employment records required to be kept by state or federal law, each employer shall keep daily time records for each of its minor employees. Such records shall be kept a minimum of five years, and shall be made available during regular business hours for inspection by the commissioner or his or her authorized representative. The time record shall indicate for each minor employee the employee's name, address and social security number, the date of each day worked including the time of day work began and ended, and the total hours worked per day.
§21-6-9. Work permits.
(a) No minor shall be employed, permitted or suffered to work without first obtaining a permit from the principal of the school which the minor attends. The permit shall be on a form prescribed by the commissioner, and shall include the minor's name and the employer's name and address. The permit shall also include a statement as to the hours of the day which minors are permitted by law to work, and the address and phone number of the division of labor to which child labor complaints and labor standards questions may be directed.
(b) A permit is valid for one year, or the duration of the permitted employment, whichever is shorter.
(c) A permit shall be issued to each minor who has fully completed the permit application. The permit application, on a form prescribed by the commissioner, shall include:
(1) Name, address and age of applicant;
(2) Proof of date of birth by birth certificate;
(3) Employer's statement of the nature of the work to be performed, the times of day and the daily and weekly hours during which the work is to be performed, including the employer's name and address, and signature of the person responsible for hiring;
(4) Parent or legal guardian's signature approving the employment as being in the best interest of the minor; and
(5) Signature of the school principal, verifying his or her knowledge of the requirements of this child labor statute and the academic performance of the minor, and approving the employment as being in the best interest of the minor.
(d) A copy of the permit for each minor shall be kept on file at the place of employment, shall be maintained for a minimum of five years, and shall be made available during regular business hours for inspection by the commissioner or his or her authorized representative. A copy of each permit shall be forwarded by the school principal to the commissioner at the time of issuance. The school principal shall maintain the application information, along with a copy of the permit issued, for each minor for a minimum of five years.
§21-6-10. Work permit revocation or amendment.
A permit may be revoked or amended by the issuer upon the recommendation of a parent, teacher or school guidance personnel upon evidence of the deterioration of academic achievement in a majority of the minor's coursework or for other good cause. A copy of each revocation or amendment shall be forwarded to the commissioner at the time of revocation or amendment, and a copy maintained by the school in the minor's permit application file.
§21-6-11. Discrimination prohibited.
No employer, agent of an employer or other person shall discharge, discipline, threaten, harass or in any manner discriminate against any applicant, employee, former employee, or any other person because such individual has opposed any act or practice made unlawful by this article or because such individual has made a charge, testified, assisted or participated in any manner in an investigation, hearing or proceeding under this article.
§21-6-12. Enforcement.
(a) The commissioner shall enforce and administer the provisions of this article. The commissioner, or his or her authorized representative, are empowered to enter and inspect such places, question such employees, and investigate such facts, conditions, or matters they deem appropriate, to determine whether any violation of this article has occurred.
(b) The identity of every complainant of any violation of this article or allegation thereof shall not be revealed during the investigative process.
(c) The commissioner, or any employee, employee's survivor, or other person aggrieved by a violation of this article, may initiate any legal action necessary to enjoin any act or practice unlawful under this article, or otherwise necessary to enforce the provisions of this article, against any employer so violating this article. The court in any action brought under this article may, in the event that judgment is awarded in favor of the plaintiff, assess the costs of the action, including reasonable attorney fees, against the defendant.
§21-6-13. Penalties.
(a) Any employer who fails to maintain records required to be kept under this article shall be punishable by a civil penalty of not less than one hundred dollars nor more than one thousand dollars per violation.
(b) Any employer who employs, permits or suffers any minor to work in violation of any provision of this article shall, on their first citation, be punishable by a civil penalty of not less than two hundred dollars nor more than two thousand dollars per violation.
(c) Any employer who employs, permits or suffers any minors to work in violation of any provision of this article shall, on their second citation, be punishable by a civil penalty of not less than three hundred dollars nor more than three thousand dollars per violation.
(d) Any employer who employs, permits or suffers any minor to work in violation of any provision of this article shall, on their third or subsequent citation, be punishable by a civil penalty of not less than five hundred dollars nor more than five thousand dollars per violation.
(e) No final order assessing civil penalties shall be entered until the employer charged with the violations has had an opportunity for a public hearing. All civil penalties assessed under this section, and costs awarded the commissioner pursuant to section twelve, shall be placed in an account and expended by the commissioner for the sole purpose of the enforcement of this article.
(f) Any employer or person who violates a provision of this article, or any parent or legal guardian of a minor, who allows such minor to work in violation of the provisions of this article, or any person who furnishes false evidence in reference to age of a minor under this article, shall be guilty of a misdemeanor, and, upon conviction thereof, shall for the first offense be fined not less than two hundred nor more than one thousand dollars, or imprisoned for not more than thirty days, or both; for a second offense or subsequent offense shall be fined not less than five hundred nor more than five thousand dollars, or imprisoned for not more than twelve months, or both.
(g) Any employer or person who intentionally violates any provision of this article resulting in the serious bodily injury or death of a minor employee is guilty of a felony, and, upon conviction thereof, shall be fined in an amount of not less than five thousand dollars nor more than ten thousand dollars or imprisoned in the penitentiary not less than three nor more than ten years, or both.
§21-6-14. Rules.
The commissioner shall promulgate rules necessary to effectuate the purposes of this article, in accordance with the provisions of chapter twenty-nine-a of the code of West Virginia, as amended, not later than six months after the effective date of this article.
§21-6-15. Severability.
If any provision of this article or the application thereof shall for any reason be adjudged by any court of competent jurisdiction to be invalid, such judgment shall not affect, impair or invalidate the remainder of said article, but shall be confined in its operation to the provision thereof directly involved in the controversy in which such judgment shall have been rendered and the applicability of such provision to other persons or circumstances shall not be affected thereby.





NOTE: This bill repeals and reenacts article six, chapter twenty-one, the Child Labor Act, in its entirety to provide a more comprehensive system to promote the education of children and to protect the lives and safety of children for workplace hazards.

Since the effect of this bill is to repeal current law and reenact with new language, no strike-throughs or underscoring are necessary.