When the school year winds down, many under-18 youths want summer jobs.  What are the rules these teens and employers need to know?  Let’s focus on jobs that are not agricultural and not in a business owned by the child’s family, as those rules are different.  Summer jobs teach young employees valuable workplace skills and provide income.  At the same time, the law wants those experiences to be safe.  According to the National Institute for Occupational Safety and Health, over 210,000 American children suffer occupational injuries each year, with over 70,000 of them requiring emergency room care.  Both federal law (Fair Labor Standards Act) and state law (NC Wage & Hour Act) apply to youth employment.

            Youth under 18 must have a Youth Employment Certification (YEC), also known as a work permit.  It must be completed and signed by the teen, a parent, and the employer.  An easy place to apply for a YEC is at the N.C. Department of Labor’s website at 

            Jobs considered by law to be hazardous or detrimental are off-limits for youth under 18.  These include logging, power-driven woodworking or punching machines, meat slicing machines, roofing, trenching, electrician’s helper, and more.

            Teens who are 14 and 15 have other special limits that apply in the summer (stricter standards apply during school).  They cannot work more than 8 hours a day or more than 40 hours per week.  They cannot work past 9 p.m.  Employers must give 14 and 15 year old employees at least a 30-minute break after five consecutive work hours.  Teens who are 14 and 15 are restricted from some types of work, like using deep fat fryers, baking, or working in any place where goods are manufactured.  Fourteen and fifteen year olds may not operate machinery, including lawn mowers and trimmers (never mind that they probably mow the lawn at home).  They may operate most office machines and many types of equipment found in food service establishments (like cash registers, toasters, dishwashers, etc.).  These teens may not work inside an establishment that has an ABC on-premises permit. 

Although drug tests may be required of applicant who is under 18, many employers who require tests find the better practice is to obtain parental consent.  However, if a drug test comes back positive, the employer is not legally permitted to tell the parent, even if the parent consented to the drug test.

Private businesses are not legally permitted to do unpaid internships for minors or adults in most instances.  Unpaid internships are usually legal only when the intern’s sole mission is to observe and learn, not to do actual work that the employer’s employees would otherwise be doing.  Government agencies can do unpaid internships legally, and non-profits can always accept volunteers.  Some private businesses choose to have unpaid interns doing actual work, and some young people find the experience to be worth much more than a paycheck, so both parties benefit; however, employers should be cautious, as it does expose them to the risk of a Fair Labor Standards Act complaint.

Excellent resources for more information on youth employment are the U.S. Department of Labor (1-866-4-USA-DOL ) and the N.C. Department of Labor (1-800-NC-LABOR).  Whether you hire teens or you are a teen employee, knowing the rules makes for a better summer employment experience.



As more baby boomers approach retirement, they will need to decide when to begin receiving Social Security retirement benefits. The earliest date you can claim Social Security retirement benefits is age 62. You will receive a reduced monthly benefit at age 62 because (if you live to full life expectancy) you will be receiving checks for a longer time. If you wait until full retirement age (age 66 for those born 1943-1954, age 67 for those born 1960 and later, and 66 and some months on a graduated scale for those born between 1955 and 1959), you will receive a higher monthly benefit, but based on life expectancy, you will not receive it for as long as if you had begun to receive it at age 62. You can wait until age 70 to start benefits, for a higher yet monthly benefit (since you won’t receive it as long, based upon life expectancy).
If you start receiving benefits before your full retirement age, your monthly benefit may be reduced if you continue to work. If you take benefits early, as of 2012 you can earn up to $14,640 per year from work without reducing your benefits. In general, above $14,640 per year, you will lose $1 in benefits for each $2 you earn from working. Your benefit will not be reduced because of income from sources other than working (like interest or dividends). If you wait until full retirement age to take Social Security, you can keep working and earn as much as you like without losing benefits.
So, how do you decide? Here are some factors:
1. How long do you expect to live? The “breakeven” point for all 3 scenarios where they work out the same (claiming at 62, claiming at full retirement age, and claiming at age 70) is 85 years according to the Social Security Administration (SSA). Based on your health and family history, if you do not think you will live to be 85, you may do better to take Social Security as early as possible. If you think you will likely live beyond age 85, and if you can wait until age 70, you may collect the most in benefits over your lifetime.
2. As of 2012, if you want to keep working and you are fortunate to earn substantially more than $14,640 per year, your monthly benefit at age 62 may be quite small. For example, if you earn $30,000 per year, you will lose about $640 a month off your monthly benefit.
3. What about health insurance? You will not qualify for Medicare until age 65. For cost reasons, you may want or need to keep health insurance through your job until you reach age 65. Alternatively, if you can be added to a spouse’s employer policy, that may bridge the gap.
4. What will your retirement financial needs be? SSA and many financial planners advise having about 70% of your pre-retirement income for a comfortable retirement. Depending on your Social Security benefit, your other savings, and your living expenses, you may need to work past age 62.
To compare different options, visit your local Social Security Office (in Durham or Burlington), or go to There are many other issues to consider with Social Security and Medicare. We will address these topics in separate articles.



A client recently asked me this question: “I have read that North Carolina is a ‘right to work state,’ and that North Carolina is an ‘employment at will state.’ – what do those terms mean for employees and employers?
That is a good question, and I am happy to shed some light on it. Yes, North Carolina employment law includes rules known as “right to work” and “employment at will.” However, they address different parts of the employer-employee relationship, so they are a bit like apples and oranges.
When we say that North Carolina is a “right to work state,” we mean that a North Carolina employee cannot be required to join a union as a condition of employment. An employer who has a factory in NC might recognize a union, and NC employees may choose to join the union, but they cannot be required to do so. In that instance, the NC employee can look at the benefits the union offers and at dues required for union membership, and choose to join or not. In states without right to work laws, some (but not all) employers will have what is called a “closed shop,” meaning that only union members are hired to work there, so all employees must join the union. The “right to work” law means there can be no “closed shops” in North Carolina. Historically, North Carolina has not been friendly to unions. Unions do not like the “right to work” law since it means unions in North Carolina employers are less powerful than if all employees could be required to join.
“Employment at will” has nothing to do with unions. Instead, it is a rule about when either the employer or they employee can end the employment relationship. The rule says that the employer can fire an employee without notice for any reason or no reason, as long as it isn’t an illegal reason. Illegal reasons include discrimination based on race, ethnicity, gender, age, disability, or military/veteran status, as set out in federal and state laws. Some local ordinances create additional protected classes, like sexual orientation. The flip side of the coin is that employees can quit without notice for any reason or no reason. An employer may create incentives for employees to give notice, like an employee handbook rule that an employee gets paid for unused vacation if he/she gives a certain amount of notice before leaving. Those kinds of incentives are lawful, but they do not force an employee to give a notice period. Employees are usually more concerned about losing a job without notice than in being able to quit without notice, so employees usually think of “employment at will” as being a rule that benefits employers more than employees. If an employee is fired without cause, he or she can usually receive unemployment compensation from the Employment Security Commission of North Carolina. Unemployment payments are sent from the state government (not from the former employer), but employers who have claims will usually end up paying more to the state in unemployment taxes as a result.

Overtime Rules

On August 23, 2004, the U.S. Department of Labor’s new overtime regulations took effect. The new rules change who is entitled to overtime pay, giving new overtime status to some employees and taking it away from others. In a further development, last week the U.S. House voted not to fund enforcement of the new rules, trying to limit their being put into effect.

Lower-paid salaried employees who previously did not get overtime receive good news under the new rules. If an employee does not make more than $455 per week ($23,660 per year), he will now be entitled to overtime pay even if he is salaried. The rules increased the earnings cutoff, which before was so low ($155 per week) that it included few full-time workers. The new rules also explicitly make eligible for overtime “blue collar” workers, including carpenters, electricians, mechanics, plumbers, iron workers, craftsmen, operating engineers, construction workers, laborers and non-management production-line employees.

In manufacturing, “team leaders” or “working supervisors” who perform mostly production work with some advising and supervising will be eligible for overtime, but teams leaders who supervise employees on a “major project” will not be. This distinction has raised concerns about interpretation.

There is bad news for computer programmers. In the past, the Labor Department categorized most computer programmers (those who were paid hourly and who did not supervise other employees) as nonexempt, making them eligible for overtime pay. The new rule provides that these employees, even if paid hourly, will be exempt, and thus not entitled to overtime pay.

Financial company workers and insurance adjusters are the types of employees more likely to fit within the expanded “administrative” exemption. Such a change would make them ineligible for overtime.

The new rules describe the various duties performed by police, fire fighters and other first responders so as to ensure that workers performing such duties are entitled to overtime. This is true even for police and fire fighters who job or rank also involves supervising others.

Remember that the flip side of getting overtime pay is having pay docked when the employee does not work. Many employers have worried about the consequences of “guessing wrong” in docking pay of an employee they believe is nonexempt, if the Department of Labor decides she is exempt. The new rules provide that the employer will not face an enforcement action if the employer has a policy prohibiting illegal deductions from employees’ pay, and then docks an employee’s pay for time not worked believing in good faith that she is a nonexempt employee, if the Department finds she is exempt and entitled to the docked pay, and the employer promptly reimburses the employee for the illegal deductions.

On September 9, 2004, 22 U.S. House Republicans voted with Democrats to deny funding to the Department to enforce the new rules, since they perceived that the new rules would amount to a net loss of persons eligible for overtime. The vote amended a large spending bill, which previously passed the U.S. Senate without the provision. A conference committee must try to reconcile the two versions of the spending bill. President Bush says he will veto the entire spending bill if it contains the denial of funding for enforcing the new rules. This standoff should be interesting to watch. In the meantime, the Department is enforcing the new rules.

Job Protections for Returning Military Personnel

Q: What job protections exist for military reserve and National Guard personnel returning from active duty?

A: With recent events in the Middle East, many reservists and National Guard personnel have been called to active duty. Fortunately, some are beginning to return home. A federal law called the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) provides job protection and prescribes rules that all employers and all reservists and National Guard personnel must follow.

USERRA applies to all employers, regardless of size. It applies to all military personnel who have served and been honorably discharged from the uniformed services and those who currently serve in the Reserves or National Guard. The Act prohibits discrimination by employers because of past, current or future military obligations. Its protection extends to hiring, promotion, reemployment, termination and benefits.

An employee is entitled to reemployment after active duty if (1) the employee has given advance written or verbal notice to the employer, (2) the cumulative absences for military service do not exceed 5 years, and (3) the employee reports back to the employer within a set time after returning from active service. The employer can require reasonable documentation of the employee’s military orders as active duty begins. After military service, the time to report back to the employer depends on the length of active service, varying from 8 hours (when returning from active duty of less than 31 days) to 90 days (when returning from active duty of more than 180 days). If the employee is prevented from reporting to the employer within the required time through no fault of his/her own, the time will be extended.

In general, the employee must be returned to the job position and seniority he/she would have held had the employment not been interrupted by active service. USERRA protects employee benefits. For shorter military absences, employers must continue health insurance on the same terms it does for other employees. For military absences between 31 days and 18 months, the employer may require the employee to pay up to 102% of the full premium under the plan. Pension plan rights and contributions under ERISA plans must continue as if the employee had not been absent for military service. An employee on military leave does not continue to accrue additional vacation or sick time while on leave, unless the employer allows employees on other types of leave to accrue vacation or sick time.

USERRA does not require employers to provide paid leave during military absences. If an employee wishes to use his/her earned vacation or personal time off during his/her military leave, the employer must allow it. However, an employer cannot require the employee to use his/her earned vacation or personal time during military absences.

The spirit of USERRA is to treat the employee engaged in and returning from active military service fairly and to prevent discrimination. The rules of USERRA help both employers and employees know what to do and what to expect.

Changes to the Family Medical Leave Act – January 2009

Some important changes took effect in January, 2009 to the Family and Medical Leave Act (FMLA) by new U.S. Department of Labor rules. The rules clarify what is required for the new military FMLA leave, and try to end areas of conflict or confusion.

You may remember that the FMLA, which is now 15 years old, applies to employers who have 50 or more employees, and to all government employers. The FMLA has always allowed employees up to 12 weeks of unpaid leave in a 12-month period for medical needs like (1) the birth or adoption of a child, (2) caring for a spouse, child, or parent with a serious health condition, or (3) the employee’s own serious disabling health condition. The leave may sometimes be taken intermittently, or by working a reduced schedule.

The new Military Caregiver Leave (also known as Covered Servicemember Leave) extends 12 weeks of unpaid leave to 26 weeks for certain military-related purposes. Leave can be taken by a next of kin to care for a servicemember who suffered a serious illness or injury in the line of duty on active duty. Another new military-related leave is the Qualifying Exigency Leave. This is 12 weeks of unpaid leave available to families of National Guard and Reserves members while on active duty, or when preparing to deploy on short notice. This leave is for several categories of needs, such as childcare and school activities, financial and legal arrangements, counseling, rest, and military-related events and activities.

The new rules clarify employer and employee rights and responsibilities under the Act. The new rules try to fix some “sore spots” under the old law that led to conflicts. Some of these highlights are:
One of the worst “sore spots” for employers was when an employee waited up to 2 business days’ absence before notifying an employer that he/she needed FMLA leave, even when notice could have been given sooner. The old law allowed this. Lack of prompt notice for unscheduled absences caused problems for employers. Under the new rule, employees must follow the employer’s customary call-in procedures for reporting an absence, except in case of emergency.

An employee who is working “light duty” but is not missing any time is not using his FMLA leave time. An employer is liable when an employee suffers individualized harm as a result of the employer failing to follow notification rules, but employers are not assessed categorical penalties for not following notification rules. Another source of problems for employers and employees was being unsure what medical certification could be required, how, and when. To protect employee privacy, new rules clarify that an employee’s direct supervisor shall not be the person from the employer who contacts the doctor for information; it must be another manager, an HR official, or leave administrator. If the employer believes a form is incomplete or insufficient, the employer must notify the employee and give him/her 7 calendar days to remedy the problem. A new certification can be required every 6 months for ongoing health conditions.

The old law seemed to require that employees on FMLA leave still be eligible for “perfect attendance” awards even though they were out on leave. Co-workers and employers felt this was unfair to employees who were not out on leave. The new rule is that an employer can deny perfect attendance awards to an employee who is out on FMLA leave as long as the employer treats employees taking non-FMLA leave in an identical way.
There are new rules for how and when an employer must notify employees of their FMLA rights. The new law puts all the notice requirements in one place, making them easier to follow.

Employers will find the notification poster and forms on the U.S. Department of Labor website, at or by calling 1-866-4USWAGE. Both employers and employees will find these sources helpful in providing more information about the new rules. An employment law attorney can also provide you with guidance.

Legal Protections for Military Service Members

In December, 2003, the Servicemembers Civil Relief Act (SCRA) was enacted to update the Soldiers’ and Sailors’ Civil Relief Act (SSCRA) of 1940. The new act clarifies the old law, updates it to reflect changes in American life since 1940 (e.g., the existence of car leases), and includes judicial interpretations handed down in the meantime.

The SCRA improves upon and broadens the legal protections given to military servicemembers. Like its predecessor, the SCRA is intended to allow active duty military personnel to perform their duties without undue interference or distraction from legal or financial difficulties.

Here are the highlights of the SCRA:

  • Upon a servicemember’s request, a court must grant a stay of all hearings, for at least 90 days. Additional stays are in the judge’s discretion.
  • Interest rates (including fees and service charges) are capped at 6% per year. Interest above that rate must be forgiven, not merely deferred. To receive this benefit, the servicemember must request the reduction in writing, including a copy of his/her orders, no later than 180 days after returning from service. On a case-by-case basis, a court may allow a creditor to charge more than 6% per year interest if the court finds that the servicemember’s ability to pay more than that rate is not materially affected by reason of military service.
  • Vehicle leases entered before service can be terminated by the servicemember if he/she is called to active duty for a period of 180 days or more.
  • Residential leases can be terminated by active duty soldiers who receive permanent change of station orders or who are ordered deployed for at least 90 days.
  • Eviction protection for military families is extended. Under SCRA, evictions from rental housing are prohibited when the monthly rent does not exceed $2,400 per month, unless a court finds that the military service does not materially interfere with the servicemember’s ability to pay this obligation.
  • Mortgage foreclosures shall be stayed upon application by a servicemember. A foreclosure, sale or seizure of the property shall not be valid if made during, or within 90 days after, the period of military service, except by court order or by agreement. Anyone who knowingly causes a foreclosure, sale or seizure of property to be made in violation of SCRA is guilty of a misdemeanor.
  • Real or personal property owned by a servicemember (individually or with a spouse) may not be sold to collect property taxes, unless a court determines that military service does not materially affect the servicemember’s ability to pay the tax.
  • If a servicemember is personally liable for a debt for his/her business, his/her personal assets that are not related to the business are off-limits to the creditor during the military service.
  • A servicemember can waive SCRA’s protections in writing during or after the period of military service (but not before).
  • SCRA makes clear that its provisions extend to National Guard members who are called to active duty for 30 days or more pursuant to a contingency mission specified by the President or Secretary of Defense.

The SCRA reflects a renewed appreciation for what our military servicemembers do for all of us. In recognition of the many sacrifices made by the servicemembers who protect and defend our nation, the SCRA removes some of the financial and legal worries they would otherwise face back home.

What is the “Family and Medical Leave Act”?

This article is a Q&A on the Family and Medical Leave Act. While space does not permit explaining all of the details of the Act, the column explains general answers to some common questions.

What is the Family and Medical Leave Act?

The Family and Medical Leave Act (FMLA) is a federal law, enacted in 1993. Its purpose is to allow employees reasonable unpaid leave to care for a new child or for a serious health condition affecting the employee or his family, while accommodating employers’ reasonable needs.

Who is covered by the FMLA?

It applies to employers with 50 or more employees, so many smaller businesses are not covered.

Which employees are eligible?

To be eligible, the employee must have worked for the employer for at least 12 months (but not necessarily 12 consecutive months), AND the employee must have worked at least 1,250 hours during the year prior to the start of the leave (which is more than half-time but less than full-time).

What type of leave is allowed?

An employee can have up to 12 weeks of unpaid leave during a year. An employer can require that an employee take all of his paid leave (vacation or sick time) first, as a part of the 12 weeks, and then provide the remainder of the 12 weeks as unpaid leave. This means that an employee cannot tack vacation or sick leave onto the twelve-week unpaid FMLA leave. With an employer’s consent, an employee can take leave intermittently or by having a reduced work schedule.

What events qualify for FMLA leave?

Any of the following: (1) birth of a child, (2) adoption or foster care placement of a child, (3) caring for a spouse, son, daughter, or parent with a serious health condition, or (4) the employee’s own serious health condition that makes the employee unable to perform his job functions. There are rules defining a “serious health condition.” Examples of conditions that are usually “serious health conditions” are cancer, stroke, asthma, diabetes, incapacity due to pregnancy, and injuries or illnesses requiring inpatient care. Common routine conditions like colds, flu, injuries requiring only emergency room care, and minor ulcers would not qualify.

What happens to an employee’s health insurance while on leave?

The employer must maintain the same health insurance benefits as if the employee were not on leave. The employee must continue to pay his usual share of the premium, and the employer must continue to pay its usual share, if any.

Is the employee’s job protected?

Except in unusual circumstances, like key executives or serious hardship for the employer, the employee has the right to return to the same or equivalent position. Upon return, the employee must receive equivalent pay, benefits, and working conditions he had at the start of the leave. Employees do not usually accrue seniority while on leave.

What kind of notice and documentation can the employer require?

If possible, the employee must give the employer 30 days’ advance notice of a request for leave. If advance notice is not possible (e.g., injury, sudden illness), the employee should notify the employer as soon as possible. The employer can require a certification from the doctor about the need for the leave. To return from leave, if the leave is due to the employee’s own incapacity, the employer can require the doctor to certify (as to that condition only) that the employee can return to his duties.

These are the general rules on basic FMLA requirements. There are many exceptions and details that may make a difference on how FMLA applies in any given case. If you have questions about the particulars of FMLA, contact an attorney or call the Department of Labor.

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