Guide to Wisconsin's Employment of Minors Laws

This page was formerly named ERD-17231-P

Introduction

As educators, community members, and employers working with minors, we have a responsibility to provide all youth with the education and experiences that will prepare them to be college- and career-ready. Fortunately, for some, that includes opportunities to apply work or classroom learning in other environments. Our primary concern, whether minors are learning in school or out of school, is that our children are safe. Employment of minors laws have developed over time to ensure that youth are not exploited in work environments and that they are afforded specific protections.

This guidance document has been produced by a team from the Wisconsin Department of Workforce Development (DWD) and the Department of Public Instruction (DPI) to assist schools and employers who hire youth. It is the primary responsibility of the DWD Equal Rights Division to issue permits and enforce the employment of minors laws in the State. This guide is meant to be used as an interpretive aide and is not meant to replace Wisconsin Administrative Code Chapter DWD 270 or cover all possible scenarios or exceptions. Furthermore, this guide does not constitute a legal document which can be asserted as evidence in a court of law. Rather it is intended to provide assistance for those with common questions about interpreting the employment of minors law statutes and administrative regulations.

Employment of minors legislation purpose

The purpose of employment of minors legislation is to protect the life, health, safety, and welfare of minors. The goal of modern employment of minors laws is to prevent through regulation rather than to award damages or penalties after an injury or violation occurs. Through the regulation of employment of minors, with emphasis on preventive rather than punitive action, we go far in meeting this goal.

Legal Age

The age of a child bears on what type of work he or she may lawfully perform. Experience has shown that it is not safe to employ minors based upon their own representations of their age, or even upon the representations of their parents. Thus, DWD requires certain legal proof of age before issuing permits.

Worldwide experience has shown that this burden is necessary to ensure child safety. Interestingly, nearly all states have employment of minors work permit requirements.

Federal versus Wisconsin Employment of Minors Laws

The U.S. Department of Labor and Wisconsin both establish employment of minors laws as they apply to hours of work, types of jobs, and working conditions. Within any state law, there may be some provisions that are more or less restrictive than provisions of the federal law.

Which law applies?:

There is often overlap in coverage between the state and federal employment of minors laws. All Wisconsin employers are required to follow the Wisconsin employment of minors laws. Most businesses are also required to follow the federal law as well.
If both apply, the more stringent standard of the two applies.

Definitions

The following definitions will be helpful as you examine employment of minors law practices.

Day: A calendar day, except when a work shift continues into the next calendar day, all hours in the shift count for the day the shift began.
Employee: "Employee" means any person who may be required or directed by any employer, in consideration of direct or indirect gain or profit, to engage in any employment, or to go or work, or be at any time in any place of employment.
Employment: According to Wis. Stat. § 103.001(7), any trade, occupation, or process of manufacture, or any method of carrying on such trade, occupation, or process of manufacture in which any person may be engaged, except in such private domestic service as does not involve the use of mechanical power and in farm labor. In laymen's terms, any person directed by another or by an agency/company to provide services in consideration of direct or indirect gain or profit.
Hazardous Employment: Occupations or tasks which are found to be dangerous or prejudicial to the life, health, safety, or welfare of minors or other employees or frequenters.
Intern/Trainee: Certain work activities performed by students as an extension of their academic programs. The training is academically oriented for the benefit of the student, and no employer-employee relationship exists.
If all six criteria listed below apply, the trainee or student is NOT employed:
- The training, even though it includes actual operation of the facilities of the employer, is similar to that which would be given in a vocational school;
- The training is for the benefit of the trainees or students;
- The trainees or students do not displace regular employees, but work under their close observation;
- The employer that provides the training derives no immediate advantage from the activities of the trainees or students, and on occasion the employer's operations may actually be impeded;
- The trainees or students are not entitled to a job at the completion of the training period; and
- The employer and the trainees or students understand that the trainees or students are not entitled to wages for the time spent in training.
OTHERWISE, the trainee or student will be regarded as an employee and must be paid. See Wage and Hour Division Fact Sheet 71: "Internship Programs Under the Fair Labor Standards Act."
Job Shadowing: Job shadowing is typically a part of career development activities in late middle and early high school. A student follows an employee at a business for a few days to learn about a particular occupation or industry. Job shadowing can help students explore a range of career clusters and select a career pathway for the latter part of high school. Students do not perform productive work and are not paid for the experience. There is no employer/employee relationship. This is a short-term, school-supervised workplace learning opportunity, with an emphasis on exploration, not work.
Minor: Any person under the age of 18. Different rules may apply for minors aged 12-13, 14-15, or 16-17 depending on the work performed.
Overtime: Minors 16 or 17 years of age are entitled to time and one-half the regular rate of pay if they work longer than 10 hours in a day or 40 hours in a work week, whichever is greater. Wis. Admin. Code § DWD 270.11(1)(c)4.
Parent-Owned Business: Minors of any age are permitted to work at any gainful occupation under the direct supervision of their parent or guardian in connection with the parent's or guardian's business, trade, or profession, provided the employment or place of employment is not deemed hazardous.
Student Learner: Students are enrolled in school in a school-work training program sponsored by an accredited school, the technical college system board, or DWD's youth apprenticeship program and receive school credit for program participation. The work performed is under direct and close supervision of a qualified and experienced person and there is a schedule of organized and progressive work processes to be performed on the job. Student Learners may perform certain tasks that are otherwise declared hazardous provided the hazardous work is incidental to the training and is for intermittent and short periods of time. Wis. Admin. Code § DWD 270.14.
Student Learner Criteria: In order to be considered a student learner, minors must meet the following criteria:
- They are enrolled in a school to work-based learning program sponsored by an accredited school, the technical college system board or DWD's youth apprenticeship program.
- They are enrolled in school and receiving school credit for program participation.
- They receive appropriate safety instruction at the school and at the workplace.
- The work performed is under direct and close supervision of a qualified and experienced person.
- The work performed in any occupation declared hazardous is incidental to the training and is for intermittent and short periods of time.
- There is a schedule of organized and progressive work processes to be performed on the job.
Student Work-Life Activities: A student may perform work-like activities in his/her school without compensation if:
- The primary purpose is educational and the activity is primarily for the benefit of the student.
- The student performs the activities for time periods of one hour or less per day.
- The student is supervised by an adult.
- The student does not displace a regular employee or reduce existing employment opportunities of regular employees.
Work-like activities may include helping in the school lunchroom or cafeteria, cleaning a classroom, acting as hall monitor, performing minor clerical work in the school office or library, or performing tasks as an extension of the classroom learning experience, e.g., building sheds for the community. Wis. Admin. Code § DWD 270.19.
Training Period: The on-the-job training period is regarded as employment time for minors no matter the length of training time.
Volunteer/Service Learning: Volunteer service is given freely without consideration or anticipated monetary payment. Service Learning is a method of teaching and learning that combines work with volunteer service to the community. For both types, there is no employer/employee relationship. The work is performed for charitable, non-profit organizations, including non-profit hospitals or nursing homes and government agencies. Wis. Admin. Code § DWD 270.18.
- Minimum age is generally 14, although minors may volunteer to perform services at younger ages in certain circumstances.
- Commercial businesses may not legally use minors as unpaid volunteers. Minors cannot volunteer for a "for profit" business. They can go there and shadow or observe as part of an educational experience, but they cannot do productive work. If they do productive work, they are entitled to minimum wage and must have an employment of minors permit.
- A minor may volunteer services for a nonprofit organization with the written consent of the minor's parent and under the supervision of a responsible adult.
- No minor may volunteer in an occupation or place of employment deemed dangerous.
- The organization for which the volunteer is serving shall provide insurance for on-duty injuries that may occur to the volunteer.
- Minor volunteers may not be used to replace a paid employee.
Work-based Learning Employment: Any school-supervised learning experience where a student trains and works with an employer to discover how knowledge learned in school is put into action, while learning applicable worksite skills. Employers gain advantage from the work students complete. DPI Work-Based Education webpage.
- Wisconsin Cooperative Education (Co-op), Cooperative Education Skill Standards Certificate Program (Skills Co-op)- Paid work experiences that occur at an employer worksite for high school credit under the supervision of properly licensed staff.
- Employability Skills Certificate Program
- Youth Apprenticeship (YA)- Paid work experiences that occur at an employer worksite for high school credit under direct supervision of employers.
- School-based Enterprises– Operation of DECA sponsored school-based stores.
- Entrepreneurship– Students engage in providing products and/or services, operated on or off school grounds that is school-based and supervised by properly licensed staff
- SAEs– Supervised Agricultural Experiences are school-sponsored work experiences in agricultural-related areas.
- Work for Credit Recovery– District developed policy that establishes rules and responsibilities for student employment leading to high school credit and includes supervision by properly licensed staff.
Work Permits: Employment of minors permits (also known as "work permits") are required for the lawful employment of minors under 16 years of age in work in connection with the business, trade, or profession of an employer. Every employment of minor permit issued under the authority of Wis. Stat. § 103.70 shall also constitute a certificate of age under Wis. Stat. § 103.75, as long as the minor named in the permit continues in the employ of the employer named on the permit. Should the ownership of the business change, the minor would need to obtain a new work permit.
An employment of minors permit does not protect the employer if it allows the minor to do any work that is prohibited by employment of minors laws. See Wis. Administrative Code Ch. DWD 270.
1. Agricultural work.
2. Domestic employment - Work within a private home that is not a business, such as babysitting, yard work.
3. Volunteer work for a non-profit agency, such as a volunteer at a non-profit hospital. Minors cannot perform prohibited work while volunteering. See Wis. Admin. Code § DWD 270.18.
4. The Youth Apprenticeship (YA) Program. Students and employers must have an approved Education Training Agreement on file with the school AND the employer instead. NOTE: Students and employers do not need to obtain a separate work permit for the work to be performed as a part of the YA program, although it is highly recommended. If employers hire youth apprentices to perform other work duties outside of their YA duties, a work permit is required.
5. Court-ordered restitution or court-ordered community service.
6. A minor may be employed without a permit by a nonprofit organization in and around the home of an elderly person or a person with a disability to perform snow shoveling, lawn mowing, leaf raking, or other similar work usual to the home of the elderly person or person with a disability, if all of the following apply:
  1. The work is not in connection with or a part of the business, trade, or profession of that person and is in accordance with the minimum age stated in Wis. Stat. § 103.67(2)(fm)
  2. The type of employment is not specifically prohibited by Wis. Stat. § 103.64 to 103.82 or by any order of the department.
  3. The minor is paid the applicable minimum wage under Wis. Stat. § 104, Wis. Admin. Code Ch. DWD 272, or under federal law, whichever is greater for the work.
  4. The minor's parent or guardian provides the nonprofit organization with his or her written consent for the minor to perform the work.
7. A minor may be employed without a permit as an election inspector.
8. Employed under the direct supervision of their parent or guardian in connection with the parent's or guardian's business, trade, or profession.

Liability & Insurance

General Liability: An employer is liable for the finished product produced or the service provided. In general, if an employer has adequate general liability and workers compensation coverage, no additional liability is required as a result of hiring youth. However, before hiring youth and/or participating in a work-based learning program, an employer may wish to consult with its insurance carrier. Ultimately, final determination of liability in a particular situation will be determined by a court of law after review of the specific circumstances.

Transportation: In general, the party responsible for transportation is liable in case of an accident. Minors responsible for their own transportation to and from the worksite are responsible for their own insurance. In instances where the school provides transportation for student learners, the school may be responsible for insurance coverage. Only if the employer provides transportation to or from work for youth may the employer be responsible for this insurance coverage.

Worker's Compensation: When a minor becomes an employee of a company, they must be covered by the employer's worker's compensation coverage. For agricultural employers, farmers need to carry worker's compensation insurance if they have 6 or more employees. See DWD's Worker's Compensation web page for more information.

Injuries: While DWD's Equal Rights Division can interpret the employment of minors law, it cannot exonerate employers from liability should an accident occur on the job which results in injury to the employee. Liability for an accident can only be settled through the worker's compensation process.

Double Compensation: When a minor is injured, primary worker's compensation is due. IF the minor is employed in legal (non-hazardous) employment, BUT without a work permit or YA ETA, the employer must match the primary compensation, and pay this amount to the Work Injury Supplemental Benefit Fund (WISBF). This is sometimes referred to as double compensation.
Treble Compensation: Where primary worker's compensation is due, AND the minor is employed in a prohibited (hazardous) occupation, the employer may be required to double the primary compensation, and pay this amount to the Work Injury Supplemental Benefit Fund (WISBF). This is referred to as treble compensation.
Primary compensation is normally paid by the insurance company. The extra compensation is primarily the responsibility of the employer.

Unemployment Compensation: Minors can file for unemployment compensation; however, if a minor is enrolled full-time in a public educational institution, and receives school credit for participation in a work-based learning program, the student learner is generally not eligible for unemployment compensation. Contact Wisconsin DWD Unemployment Insurance for more information.

Strikes / Lockouts: Employment of minors laws prohibit minors from working in a company where a strike or lockout is in active progress. This includes participation in picketing. Wis. Admin. Code § DWD 270.12(26).

Collective Bargaining Agreements: Student Learner programs should not impair existing contracts for services or collective bargaining agreements. Any student learner program that would be inconsistent with the terms of a collective bargaining agreement should be approved with the written concurrence of the labor organization and employer involved.

Hours & Wages

Hours

Minors under 18 may not be employed during the hours they are required to attend school.
Student learners may be allowed to work during school hours if the student is enrolled in a work-based learning program.
Minors who are high school graduates can work the same hours as adults.
Wisconsin no longer limits the hours 16-17 year-old minors may work.

See the DWD Employment of minors web site for current applicable hours and times of the day that minors under 16 may work in Wisconsin.

Wages: Youth workers must be paid at least minimum wage. Wisconsin wage statutes require employers pay all workers all wages earned on at least a monthly basis, except farm labor which can be paid at quarterly intervals.

Minimum Wage: The federal Fair Labor Standards Act (FLSA) and Wisconsin law establish minimum wage rates in the private sector and for government employees. Covered workers are entitled to a minimum wage of not less than $7.25 per hour effective July 24, 2009, under both federal and state laws. See DWD Minimum Wage.

Opportunity Wage: "Opportunity employee" means an employee who is not yet 20 years old and who has been in employment status with a particular employer for 90 or fewer consecutive calendar days from the date of initial employment. Both federal law and Wisconsin law have an opportunity rate. Currently Wisconsin's rate is $5.90 per hour, which exceeds the federal rate ($4.25 per hour). Since employers must comply with both, the higher Wisconsin rate must be paid. On the 91st day, the rate must go up to $7.25 per hour.

Sub-minimum Wage: An individual whose earning or productive capacity is impaired may be paid a special minimum wage commensurate with the worker's ability and productivity. The employer must first obtain a special minimum wage license authorizing the pay rate by submitting an application to the Wisconsin Department of Workforce Development. A license from the U.S. Department of Labor, Wage, and Hour Division is also required. The pay rate is determined by comparing the productivity of a worker with a disability to a norm established for workers without disabilities by verifiable work measurement methods, or by comparing the productivity of a worker with a disability to that of experienced workers without disabilities employed in comparable work. See Wis. Admin. Code § DWD 272.09.

Employment/Equipment Restrictions

An employment of minors work permit does not allow the employment of a minor in prohibited work and does not protect the employer if it allows the minor to do any work that is prohibited by statute or restricted by order. The Index to Prohibited Work lists prohibited or restricted types of employment.