Prior to hiring a minor (an employee who is under the age of 18), an employer has an obligation to obtain the minor’s employment certificate or permit issued in accordance with the education law (commonly referred to as “working papers”). Prior to the minor starting work, the employer must file this certificate at the place of the minor’s employment so that it may be readily accessible to any person authorized by law to examine such a document.
If a minor is injured while on the job, the New York State Workers’ Compensation Board (WCB) and Department of Labor (DOL) will begin an investigation to determine if the claimant was legally employed. As part of that investigation, the employer is required to produce the minor’s working papers. If the employer is unable to produce the working papers, New York State will investigate the question of illegal employment pursuant to Labor Law Section 132.
If, upon investigation, it is determined that the employer failed to obtain the working papers and that the minor was illegally employed, the WCB will next investigate the applicability of WCL Section 14-a. This holds that if a minor was illegally employed at the time of injury, the injured worker will be entitled to compensation “double the amount otherwise payable” for their injury. However, the employer, and not the carrier, shall be liable for this increased award, as provided by WCL Section 14-a.
The New York State Appellate Division, Third Department, has further expanded on the issue of illegal employment in the context of working papers and applicable penalties. In doing so, the Third Department has made it clear that the burden is on the employer to obtain and maintain the working papers. The minor will not be punished for failing to produce working papers. The Third Department has held that an employer is liable for illegally employing a minor in cases where the employer failed to obtain the working papers, failed to maintain the working papers, failed to observe the working papers, or did not require working papers. A violation of WCL Section 114-a can even be found in cases where the minor deceived the employer of his or her age. Lastly, the fact that the minor did possess valid working papers (i.e., possessed them but never presented them to the employer) will not excuse the employer of a finding of illegal employment and subsequent penalties pursuant to WCL Section 14-a.
In light of the above, employers should take caution to ensure strict compliance with Labor Law Section 132 prior to hiring a minor. To do so, employers should require that all minors produce valid working papers prior to employment. Upon receipt of the working papers, the employer should ensure that the papers are properly stored so that they may be viewed by those with legal authority to do so. Failure to do so may result in an increase of liability through an award of double compensation to the injured minor.