Employers who employ minors will not violate the Fair Labor Standards Act’s child labor laws age restriction if they employ an employee in an age-appropriate occupation and if they keep on file unexpired certificates of age for each minor employed, even if the child turns out not to be the appropriate age. 29 US Code 203(l)(2); 29 CFR 570.5(a); 29 CFR 570.38; 29 CFR 570.121
For purposes of this rule, a valid age certificate is either:
- a Federal certificate of age, issued by the Wage and Hour Division of the US Department of Labor, which shows that the minor is above the oppressive child-labor age-related to the job he or she performs; or
- a State certificate of age issued by or under the supervision of a state agency which has been designated for this purposes by the Wage and Hour Division of the US Department of Labor showing that the minor is above the oppressive child-labor age-related to the job he or she performs.
Employers are encouraged to obtain an age certificate when an employee claims to be 1 or 2 years older than the applicable child-labor age to ensure compliance with the federal child labor laws. 29 CFR 570.5(c)
When authorized individuals obtain substantial evidence that the age for a minor on an age certificate is not correct, they must inform the minor and employer of their intention to request that the Wage and Hour Division of the US Department of Labor take the necessary action to ensure the age on the certificate is correct or revoke the age certificate if the minor is under child-labor age requirements for the job they are performing. 29 CFR 570.11; 29 CFR 570.12
Acceptable forms of documentation of age
In order for an age certificate to be issued, the application for the certificate, whether submitted by the minor or prospective employer, must be accompanied by one of the following acceptable forms of documentary evidence, listed in order of preference:
- a birth certificate or attested transcript thereof or a signed statement issued by a registrar of vital statistics or other officer charged with the duty of recording births of the recorded date and place of birth.
- a baptismal record or attested transcript thereof showing the date and place of birth and date and place of baptism; a bona fide contemporary record of the child’s date and place of birth kept in a Bible where records of family births are recorded; or other documentary evidence that is satisfactory to the Wage and Hour Division and which has existed for at least one year prior to the time it is offered as proof of the minor’s age, such as a passport showing the minor’s age, a certificate of arrival in the US issued by the US immigration office showing the minor’s age, or a life insurance policy.
- a school record or school-census record of the minor’s age, together with a sworn statement of a parent or person standing in the place of a parent confirming the age of the minor and a certificate signed by a physician offering his or her opinion as to the age of the minor. The certificate must show the height and weight of the child and other facts concerning his or her physical development where were relied on by the physician to make his or her determination (if a school record or school census record is not available, the sworn statement of the parents or person standing in the place of the parent together with the physician statement may be sufficient).
The Wage and Hour Division will only accept forms of evidence other than a birth certificate or signed statement by a registrar of vital statistics if reasonable efforts have been made to obtain the preferred forms of evidence but the efforts have been unsuccessful. In order to avoid any undue delay in issuing the age certificate, the Wage and Hour Division may rely on other forms of evidence, in the order listed above, if a verification of birth certificate had be requested but not received from the appropriate bureau of vital statistics. 29 CFR 570.7(b)
Employer’s responsibility to retain the age certificate
Certificates of age for minors under 18 years of age are sent to the prospective employer, who must then keep the certificate on file at the minor’s workplace. If the minor terminates employment, the employer must give the certificate to the minor who may then present it to a subsequent employer. 29 CFR 570.6(b)(1) An age certificate for a minor who is 18 or 19 years old may be given directly to the minor who must then give the age certificate to the employer to be kept on file. The age certificate must be returned to the minor when employment with the employer ends. 29 CFR 570.6(b)(2)
Employer’s are not required to obtain age certificates
Although age certificates provide employers with substantial protection from claims of child labor violations, employers are not required to have an age certificate before employing a minor. 29 CFR 570.5 If an employer does hire an youth employee without an age certificate, the employer carries the burden of validating the youth’s age and may not be able to rely on the youth’s false representations regarding their age if child labor law violations are alleged.
Contents of the age certificate
Certificates of age must contain the following information:
- name of the minor
- address of the minor
- place and date of birth of the minor, together with a statement indicating the evidence on which the information is based (the place of birth does not need to appear on the certificate if it is kept on file by the person issuing the certificate)
- sex of the minor
- name and address of the minor’s parents or the person standing in place of the parents (this information does not need to appear on the certificate if it is kept on file by the person issuing the certificate)
- name and address of the employer, if the minor is under 18
- industry of the employer, if the minor is under 18
- occupation of the minor, if the minor is under 18
- signature of the issuing officer
- the date and place the certificate is issued
State-issued certificates
Employers may rely on state issued age certificates if the state issuing the certificate has been authorized by the US Department of Labor, Wage and Hour Division, to do so. State certificates may be referred to as employment or working certificates or permits and are valid even if they require conditions or restrictions additional to those required under federal law. 29 CFR 570.9
States that have been authorized by the Wage and Hour Division of the US Department of Labor are:
- Alabama
- Arkansas
- California
- Colorado
- Connecticut
- Delaware
- District of Columbia
- Florida
- Georgia
- Hawaii
- Illinois
- Indiana
- Iowa
- Kentucky
- Louisiana
- Maine
- Maryland
- Massachusetts
- Michigan
- Minnesota
- Missouri
- Montana
- Nebraska
- Nevada
- New Hampshire
- New Jersey
- New Mexico
- New York
- North Carolina
- North Dakota
- Ohio
- Oklahoma
- Oregon
- Pennsylvania
- Puerto Rico
- Rhode Island
- South Dakota
- Tennessee
- Vermont
- Virginia
- West Virginia
- Wisconsin
- Wyoming
Special rules for Alaska and Guam
In the Sate of Alaska and the Territory of Guam, the following document have the same effect as a Federal age certificate:
- a birth certificate or attested transcript thereof or a signed statement issued by a registrar of vital statistics or other officer charged with the duty of recording births of the recorded date and place of birth.
- A record of the child’s baptism or attested transcript thereof showing the child’s date of birth, or
- with respect to the State of Alaska, a statement on the census records of the Bureau of Indian Affairs and signed by an administrative representative thereof showing the name, date of birth, and place of birth of the minor.
