Chapter 50. Regulation Governing the Employment of Minors on Farms, in Gardens and in Orchards
16VAC15-50-10. Definitions.
The following terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise:
"Agriculture" includes farming in all its branches and among other things includes the cultivation and tillage of soil, dairying, the production, cultivation, growing, and harvesting of any agricultural or horticultural commodities (including commodities defined as agricultural commodities in § 15(g) of the Federal Agricultural Marketing Act, as amended), the raising of livestock, bees, fur-bearing animals, or poultry, and any practices (including any forestry or lumbering operations) performed by a farmer or on a farm as an incident to or in conjunction with such farming operations, including preparation for market, delivery to storage or to market or to carriers for transportation to market.
"Commissioner" means the Virginia Commissioner of Labor and Industry.
"Department" means the Virginia Department of Labor and Industry.
"Employ" includes to suffer or permit to work. The nature of an employer-employee relationship is ordinarily to be determined not solely on the basis of the contractual relationship between the parties but also in the light of all the facts and circumstances. Moreover, the terms "employer" and "employ" are broader than the common law concept of employment and must be interpreted broadly in the light of the mischief to be corrected. Thus, neither the technical relationship between the parties nor the fact that the minor is unsupervised or receives no compensation is controlling in determining whether an employer-employee relationship exists. However, these are matters which should be considered along with all other facts and circumstances surrounding the relationship of the parties in arriving at such determination.
The words "suffer or permit to work" include those who suffer by a failure to hinder and those who permit by acquiescence in addition to those who employ by oral or written contract. A typical illustration of employment of oppressive child labor by suffering or permitting an underaged minor to work is that of an employer who knows that his employee is utilizing the services of such a minor as a helper or substitute in performing his employer's work. If the employer acquiesces in the practice or fails to exercise his power to hinder it, he is himself suffering or permitting the helper to work and is, therefore, employing him.
Statutory Authority
§§ 40.1-6(3), 40.1-100 A 9, and 40.1-114 of the Code of Virginia.
Historical Notes
Derived from VR425-01-81:1 § 1, eff. July 13, 1994.
16VAC15-50-20. Hazardous occupations.
This section identifies the occupations on farms, in gardens, and in orchards which are particularly hazardous for minors under 16 years of age. No employer shall employ, suffer, or permit a minor under 16 years of age to work in any of the following occupations, deemed to be particularly hazardous, except as provided in 16VAC15-50-30:
1. Operating a tractor of over 20 PTO horsepower, or connecting or disconnecting an implement or any of its parts to or from such a tractor.
2. Operating or assisting to operate (including starting, stopping, adjusting, feeding, or any other activity involving physical contact associated with the operation) any of the following machines:
a. Corn picker, cotton picker, grain combine, hay mower, forage harvester, hay baler, potato digger, or mobile pea viner;
b. Feed grinder, crop dryer, forage blower, auger conveyor, or the unloading mechanism of a nongravity-type self-unloading wagon or trailer; or
c. Power post-hole digger, power post driver, or nonwalking type rotary tiller.
3. Operating or assisting to operate (including starting, stopping, adjusting, feeding, or any other activity involving physical contact associated with the operation) any of the following machines:
a. Earthmoving equipment;
b. Fork lift;
c. Potato combine; or
d. Chain saw.
4. Working on a farm in a yard, pen, or stall occupied by:
a. A bull, boar, or stud horse maintained for breeding purposes; or
b. A sow with suckling pigs, or cow with newborn calf (with umbilical cord present).
5. Working from a ladder at a height of over 20 feet for purposes such as pruning trees, picking fruit, etc.
6. Driving a bus, truck, or automobile when transporting passengers, or riding on a tractor as a passenger or helper.
7. Working inside:
a. A fruit, forage, or grain storage designed to retain an oxygen deficient or toxic atmosphere;
b. An upright silo within two weeks after silage has been added or when a top unloading device is in operating position;
c. A manure pit; or
d. A horizontal silo while operating a tractor for packing purposes.
8. Handling or applying (including cleaning or decontaminating equipment, disposal or return of empty containers, or serving as a flagman for aircraft applying) agricultural chemicals classified under the Federal Insecticide, Fungicide, and Rodenticide Act (7 USC § 135 et seq.) as Category I of toxicity, identified by the word "poison" and the "skull and crossbones" on the label; or Category II of toxicity, identified by the word "warning" on the label;
9. Handling or using a blasting agent including, but not limited to, dynamite, black powder, sensitized ammonium nitrate, blasting caps, and primer cord; or
10. Transporting, transferring, or applying anhydrous ammonia.
Statutory Authority
§§ 40.1-6(3), 40.1-100 A 9, and 40.1-114 of the Code of Virginia.
Historical Notes
Derived from VR425-01-81:1 § 2, eff. July 13, 1994.
16VAC15-50-30. Exemptions to hazardous occupations.
A. This section provides exemptions to the restrictions on hazardous occupations on farms, in gardens and in orchards set forth in 16VAC15-50-20.
B. 16VAC15-50-20 shall not apply to the employment of a child below the age of 16 by his parent or by a person standing in the place of his parent on a farm owned or operated by such parent or person.
C. Student learners.
Minors 14 years and 15 years of age are exempted from the occupations listed in subdivisions 1 through 5 of 16VAC15-50-20 when each of the following requirements are met:
1. A student-learner is enrolled in a vocational education training program in agriculture under a recognized state or local educational authority, or in a substantially similar program conducted by a private school;
2. Such student-learner is employed under a written agreement which provides that:
a. The work of the student-learner is incidental to his training;
b. Such work shall be intermittent, for short periods of time, and under the direct and close supervision of a qualified and experienced person;
c. Safety instruction shall be given by the school and correlated by the employer with on-the-job training; and
d. A schedule of organized and progressive work processes to be performed on the job have been prepared;
3. Such written agreement contains the name of the student-learner, and is signed by the employer and by a person authorized to represent the educational authority or school; and
4. Copies of each such agreement are kept on file by both the educational authority or school and by the employer.
D. Federal extension service.
16VAC15-50-20 shall not apply to the employment of a child under 16 years of age in those occupations in which he has successfully completed one or more training programs described in subdivisions D 1, D 2, and D 3 of this section provided he has been instructed by his employer on safe and proper operation of the specific equipment he is to use; is continuously and closely supervised by the employer where feasible; or, where not feasible, in work such as cultivating, his safety is checked by the employer at least at midmorning, noon, and midafternoon.
1. 4-H Tractor Operation Program. The child is qualified to be employed in an occupation described in subdivision 1 of 16VAC15-50-20 provided:
a. He is a 4-H member;
b. He is 14 years of age or older;
c. He is familiar with the normal working hazards in agriculture;
d. He has completed a tractor training program approved by 4-H and conducted by, or in accordance with the requirements of, the cooperative extension service of a land grant university;
e. He has passed a written examination on tractor safety and has demonstrated his ability to operate a tractor safely with a two-wheeled trailed implement on a course similar to one of the 4-H Tractor Operator's Contest Courses; and
f. His employer has on file with the child's records kept pursuant to 16VAC15-50-40 (name, address, and date of birth) a copy of a certificate acceptable by the department, signed by the leader who conducted the training program and by an extension agent of the cooperative extension service of a land grant university to the effect that the child has completed all the requirements specified in subdivisions D 1 a, D 1 b, D 1 c, D 1 d, and D 1 e of this section.
2. 4-H Machine Operation Program. The child is qualified to be employed in an occupation described in subdivision 2 of 16VAC15-50-20 providing:
a. He satisfies all the requirements specified in subdivisions D 2 b, D 2 c, and D 2 d of this section;
b. He has completed an additional 10-hour training program on farm machinery safety, including 4-H Fourth-Year Manual, Unit 1, Safe Use of Farm Machinery, or a similar training program approved by the commissioner;
c. He has passed a written and practical examination on safe machinery operation; and
d. His employer has on file with the child's records kept pursuant to 16VAC15-50-40 (name, address, and date of birth) a copy of a certificate acceptable to the department, signed by the leader who conducted the training program and by an extension agent of the cooperative extension service of a land grant university, to the effect that the child has completed all of the requirements specified in subdivisions D 2 a, D 2 b, and D 2 c of this section.
3. Tractor and Machine Operation Program. The child is qualified to be employed in an occupation described in subdivisions 1 and 2 of 16VAC15-50-20 providing:
a. He is 14 years of age, or older;
b. He has completed a four-hour orientation course familiarizing him with the normal working hazards in agriculture;
c. He has completed a 20-hour training program on safe operation of tractors and farm machinery, which covers all material specified in subdivisions D 1 d and D 2 b of this section;
d. He has passed a written examination on tractor and farm machinery safety, and has demonstrated his ability to operate a tractor with a two-wheeled trailed implement on a course similar to a 4-H Tractor Operator's Contest Course, and to operate farm machinery safely; and
e. His employer has on file with the child's records kept pursuant to 16VAC15-50-40 (name, address, and date of birth) a copy of a certificate acceptable to the department, signed by the volunteer leader who conducted the training program and by an extension agent of the cooperative extension service of a land grant university, to the effect that all of the requirements of subdivisions D 3 a, D 3 b, D 3 c, and D 3 d of this section have been met.
E. Vocational agriculture training.
16VAC15-50-20 shall not apply to the employment of a vocational agriculture student under 16 years of age in those occupations in which he has successfully completed one or more training programs described in subdivision E 1 or E 2 of this section and who has been instructed by his employer in the safe and proper operation of the specific equipment he is to use, who is continuously and closely supervised by his employer where feasible or, where not feasible, in work such as cultivating, whose safety is checked by the employer at least at midmorning, noon, and midafternoon, and who also satisfies whichever of the following program requirements are pertinent:
1. Tractor Operation Program. The student is qualified to be employed in an occupation described in subdivision 1 of 16VAC15-50-20 provided:
a. He is 14 years of age or older;
b. He is familiar with the normal working hazards in agriculture;
c. He has completed (i) the tractor operation training program required by United States Department of Labor child labor regulations applicable to vocational agriculture students, or (ii) a similar training program approved by the commissioner. Information regarding the availability of these training programs may be obtained from the Virginia Department of Labor and Industry;
d. He has passed both a written test and a practical test on tractor safety including a demonstration of his ability to operate safely a tractor with a two-wheeled trailed implement on a test course similar to that provided in the training programs described above; and
e. His employer has on file with the child's records kept pursuant to 16VAC15-50-40 (name, address, and date of birth) a copy of a certificate acceptable to the department, signed by the vocational agriculture teacher who conducted the program to the effect that the student has completed all the requirements specified in subdivisions E 1 a, E 1 b, E 1 c, and E 1 d of this section.
2. Machinery Operation Program. The student is qualified to be employed in an occupation described in subdivision 2 of 16VAC15-50-20 provided he has completed the Tractor Operation Program described in subdivision E 1 of this section, and:
a. He has completed (i) the machinery operation training program required by United States Department of Labor child labor regulations applicable to vocational agriculture students, or (ii) a similar training program approved by the commissioner. Information regarding the availability of these training programs may be obtained from the Virginia Department of Labor and Industry;
b. He has passed both a written test and a practical test on safe machinery operation similar to that provided in the training programs described above; and
c. His employer has on file with the child's records kept pursuant to 16VAC15-50-40 (name, address, and date of birth) a copy of a certificate acceptable to the department, signed by the vocational agriculture teacher who conducted the program to the effect that student has completed all the requirements specified in subdivisions E 2 a and E 2 b of this section.
F. The commissioner will appoint an Advisory Committee on Farm Safety Training Materials. The committee shall be composed of qualified persons knowledgeable about such matters. Upon advice of the committee, the commissioner will approve and publish a list of approved training materials as necessary to permit compliance with this section.
Statutory Authority
§§ 40.1-6(3), 40.1-100 A 9, and 40.1-114 of the Code of Virginia.
Historical Notes
Derived from VR425-01-81:1 § 3, eff. July 13, 1994.
16VAC15-50-40. Record keeping requirements.
Every employer (other than parents or guardians standing in the place of parents employing their own child or a child in their custody) who employs in agriculture any minor under 16 years of age on days when school is in session or on any day if the minor is employed in a hazardous occupation shall maintain and preserve records containing the following data with respect to each and every such minor so employed:
1. Name in full,
2. Place where minor lives while employed. If the minor's permanent address is elsewhere, give both addresses.
3. Date of birth.
Statutory Authority
§§ 40.1-6(3), 40.1-100 A 9, and 40.1-114 of the Code of Virginia.
Historical Notes
Derived from VR425-01-81:1 § 4, eff. July 13, 1994.
16VAC15-50-50. Nonapplicability of general industry regulations to agriculture.
The Virginia Rules and Regulations Declaring Hazardous Occupations, 16VAC15-30-10 et seq., shall not apply to any occupation on farms, in gardens and in orchards.
Statutory Authority
§§ 40.1-6(3), 40.1-100 A 9, and 40.1-114 of the Code of Virginia.
Historical Notes
Derived from VR425-01-81:1 § 5, eff. July 13, 1994.