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Situations raise issues of children.

Byline: ON THE JOB by Bureau of Labor and Industries For The Register-Guard

Question: One of our employees recently submitted a request for leave in which she asked for time off to attend a parent-teacher conference. She also indicated on the form that the time off be designated as leave under the Oregon Family Leave Act (OFLA). Does this kind of absence qualify as OFLA leave?

Answer: No. OFLA allows time off for a parent to care for a child with a serious health condition or to care for a child with an illness, injury or condition which is a nonserious health condition requiring home care (referred to as "sick child leave'). A parent-teacher conference or other school-related events, though often a difficult for parents to juggle, is not an event that would trigger OFLA leave, since the child in such situations is not suffering an illness or injury. Perhaps the employee is under the erroneous impression that time to tend to any of her children's school needs, even those unrelated to illness, qualifies as sick child leave. While some have proposed adding school events to the leave law, these proposals have not been adopted in the law.

Of course, the employer may nevertheless authorize the time off, whether paid or unpaid, pursuant to its company policy regarding personal absences, and simply not designate the leave as OFLA.

Question: My neighbor's 18-year old daughter has been baby-sitting my two kids off and on over the summer. I have been paying her $5 per hour, but last night the baby sitter's mother called me and complained that her daughter is entitled to be paid minimum wage for all of the hours she's worked.

While I haven't exactly thought of her as my employee, we did negotiate her hourly wage and I can't really afford to pay her much more than that. I certainly don't mean to shortchange her if she's entitled to minimum wage (which I know is more than $5 per hour). But I will probably have to quit having her baby-sit if I have to pay her more than $2 more per hour! Do I have to pay her minimum wage?

Answer: Baby sitters are usually excluded (exempt) from both minimum wage and overtime requirements. Check your facts carefully, though, because there are some differences between federal and state laws.

Under Oregon law, a baby sitter is exempt as long as he or she is working either in the home of the child or the home of the sitter. Since that's the case here, you do not need to pay Oregon's $7.25 minimum wage. ORS 653.020 (13).

Under federal law, however, the sitter must be working on a "casual basis" in order to be exempt from the federal minimum wage of $5.15 per hour.

Federal regulations define "casual basis" as "irregular or intermittent." The rules further explain that in order for services to be "casual" they cannot exceed 20 hours per week as a whole, "or if in excess of 20 hours per week, the employment is without regularity, or is for irregular or intermittent periods."

In addition to being "irregular" in nature, casual labor cannot be the employee's main source of income. In other words, the baby sitter must have ways other than baby-sitting to pay the rent.

Casual baby-sitting services also may include the performance of some household work not related to caring for the children, as long as that work does not exceed 20 percent of the total hours worked on the particular baby-sitting assignment.

Question: My 14-year-old neighbor has been begging me to hire him to mow my lawn. I've told him "no thanks," but now I'm thinking it would really help me out. One of the reasons I am hesitant to hire him is that I've heard that minors are not allowed to operate power lawn mowers. Is that true?

Answer: Because of these particular circumstances, it is all right for the boy to operate the power mower. Although the child labor laws generally prohibit minors under 16 from operating power lawn mowers, there is an exception for work performed on your own private residence. You may, however, wish to consult your insurance company to find out your liability if the minor is injured.

It is also possible that your youthful entrepreneur could be classified as a "domestic employee" (similar to the baby-sitting example above), or even as an independent contractor. If either one of those classifications applied, he would be exempt from minimum wage. But because the laws on this can be complicated, be sure to get legal advice beforehand.
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Article Details
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Title Annotation:Columns
Publication:The Register-Guard (Eugene, OR)
Article Type:Column
Date:Aug 7, 2005
Previous Article:Net profit, peril.

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