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GINA Amends FLSA to Increase Penalties for Child Labor Violations

As reported in the June issue of Briefly, President Bush signed into law on May 21, 2008 the Genetic Information Non-Discrimination Act of 2008 ("GINA") (see "Genetic Discrimination Law Bill Becomes Law" June 2008 Briefly). In addition to prohibiting discrimination by employers and health plan insurers based on genetic information, a provision of this new law also increases the penalties imposed on an employer for violations of the child labor sections of the Fair Labor Standards Act of 1983 ("FLSA").

Included among the miscellaneous provisions added by the Congress to GINA is "Section 302: Child Labor Protections." This provision amends FLSA § 216(e) to increase the penalties imposed for violations of the FLSA child labor laws. Effective May 21, 2008, any person who violates the FLSA child labor provisions involving oppressive child labor or certain child labor safety requirements is subject to a civil penalty of up to $11,000 for each employee who is the subject of the violation, or up to $50,000 for any violation which causes the death or serious injury of any employee under the age of 18. The $50,000 penalty for serious injury or death of a child may be doubled if the violation is repeated or found to be willful. "Serious injury" is defined as: (1) permanent loss or substantial impairment of one of the senses or of the function of a bodily member, organ, or mental faculty; or (2) permanent paralysis or substantial impairment that causes loss of movement or mobility of a body part.

Section 302 of GINA also increases the maximum civil penalty for any repeated or willful violation of child labor minimum wage or maximum hours requirement to $1100 for each violation.

Among other things, the FLSA child labor provisions restrict the duties that employees under age 18 may perform, and also restrict the number of hours that an employee between the ages of 14 and 16 may work. In light of the increased penalties that GINA imposes for violations of these FLSA provisions, employers with employees under the age of 18 should review the FLSA child labor requirements carefully to ensure that they are in compliance.

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