Wage and Hour Division

Overtime Compensation Rules

(By authority conferred on the director of the department of consumer and industry services by section 6 of 1964 PA 154, MCL 408.386)

PART 1. GENERAL PROVISIONS

R 408.701 Definitions.

Rule 1. As used in these rules:

(a) "Act" means Act No. 154 of the Public Acts of 1964, as amended, being Section 408.381 et seq. of the Michigan Compiled Laws.

(b) "Administrative Capacity" means an employee who is compensated on a salary basis at not less than $250.00 per week and whose primary duty is nonmanual work directly related to the administration of an educational institution.

(c) "Commission" means all earnings of an employee, in addition to the hourly rate of pay, which the employee has been led to expect on a regular basis as a result of an employment contract, agreement, or promise.

(d) "Compensatory Time" means paid time off earned at 11/2 times the regular hours worked in excess of 40 hours in a week and paid at some future time.

(e) "Executive Capacity" means an employee to whom all of the following provisions apply:

(i) Compensation is on a salary basis at not less than $250.00 per week.

(ii) The employee's primary duty is management.

(iii) The employee supervises 2 or more employees.

(f) "Fee" means a fixed amount for a service provided or job completed regardless of time required for completion.

(g) "Paid Time Off" means compensation for time off paid to the employee for vacation, personal time, or sick time.

(h) "Professional Employee" means an employee who is compensated on a salary basis at no less than $250.00 per week and whose primary duty is any of the following:

(i) Work in a field of science or learning that requires knowledge acquired by a prolonged course of specialized instruction.

(ii) Work in a recognized field of artistic endeavor that depends upon the talent of the employee.

(iii) Work in an educational institution as a teacher, tutor, instructor, or lecturer.

(i) "Salary" means payment of a fixed amount not subject to reduction because of variations in the quantity or quality of work performed.

(j) "Workweek," as applied to an employee, means a fixed and regular recurring period of 168 hours or 7 consecutive 24-hour periods. Workweek need not coincide with the calendar week, but may begin on any day and at any hour of the day. For purposes of computing overtime pay, a single workweek may be established for 1 employee or different workweeks may be established for different employees or groups of employees.

History: 1954 AC; 1979 AC; 1998-2000.

R 408.702 Records.

Rule 2. (1) An employer shall keep employment records for each employee showing all of the following:

(a) Name.

(b) Home address.

(d) Occupation in which employed.

(e) Total daily hours worked, showing the starting and ending times each day, computed to the nearest tenth of an hour, or other finer measure.

(f) Total hours worked in each pay period.

(g) Total hours worked in each work period when the work period does not coincide with the pay period.

(h) Total hourly, daily, or weekly basic wage.

(i) Total wages paid each pay period.

(j) Itemization of all deductions made each pay period.

(k) Itemization of tips received in each pay period.

(2) An employer shall keep records for employees paid on a piecework basis to indicate pieces produced.

(3) If a credit is taken for gratuities received by an employee, then the employment records shall contain for each pay period in which the credit was taken a written statement of the amount of gratuities received by the employee. The statement shall be signed by the employee and dated before the date the paycheck was received.

(4) Records required under this rule shall be preserved by the employer for not less than 3 years.

History: 1979 AC; 1981 AACS; 1998-2000 AACS.

R 408.703 Rescinded.

History: 1979 AC; 1981 AACS; 1998-2000 AACS.

R 408.704 Rescinded.

History: 1979 AC; 1981 AACS; 1998-2000 AACS.

R 408.705 Rescinded.

History: 1979 AC; 1981 AACS; 1998-2000 AACS.

R 408.706 Complaint; filing date; time limitation.

Rule 6. (1) A complaint shall be considered filed with the department as of the date it is received by the department.

(2) A claim must be filed with the department within 3 years of the date of the alleged violation.

History: 1981 AACS; 1998-2000 AACS.

R 408.711 Scale of piecework for harvesting vegetables.

Rule 11. The following scale of piecework applicable to the harvesting of vegetables is determined by the wage deviation board to be equivalent to the prevailing minimum hourly wage for such work: Crop/Unit Rate Eff. Rate Eff. Rage Eff. 1/1/79 1/1/80 1/1/81 Aspararus (pound) .091 .097 .105 Beans (Snap)(Bushel) $2.58 $2.76 $2.98 Cucumber (Pickles)(Pound) .036 .038 .041 Greens (25 Pound Crate) .534 .571 .617 Lettuce (Head)(24 Head Crate) .158 .169 .183 Onions, Dry (Yellow)(5 Peck Crate) .217 .232 .251 Onions, Dry (White)(5 Peck Crate) .381 .407 .440 Onions, Green (Bunch)(8-9 Onions Per Bunch) .058 .062 .067 Peppers, "Cherry" (Bushel) $1.86 $1.99 $2.15 Peppers, "Long Green" (Bushel) .504 .539 .582 Potatoes (Bushel) .172 .184 .199 Radishes (Dozen Bunches)(18-20 Radishes Per Bunch) .480 .513 .554 Tomatoes, Fresh (5/8 Bushel Hamper) .425 .454 .491 Tomatoes, Process (5/8 Bushel Hamper) .31 .33 .36

History: 1979 AC.

R 408.712 Scale of piecework for harvesting fruits.

Rule 12. The following scale of piecework applicable to the harvesting of fruits is determined by the wage deviation board to be equivalent to the prevailing minimum hourly wage for such work: Crop/Unit Rate Eff. Rate Eff. Rate Eff. 1/1/79 1/1/80 1/1/81 Apples (Bushel)(Stripping Rate) .335 .358 .387 Apples, Crab (Bushel)(Stripping Rate) $1.16 $1.24 $1.34 Blackberries (Quart) .326 .348 .376 Blueberries, Hand Picked (Pound) .173 .185 .20 Blueberries, Hand Vibrator Assisted (Pound) .046 .049 .053 Cherries, Tart (27 Pound Lug) $1.61 $1.72 $1.86 Cherries, Sweet (24 Pound Lug) $1.77 $1.89 $2.04 Grapes, Concord & Niagara

(Pound) .018 .019 .021 Grapes, Delaware (Pound) .023 .025 .027 Peaches, Process (Bushel) .376 .402 .434 Pears (Bushel) .520 .556 .601 Plums (Blue Damson, etc.)(Bushel) $2.32 $2.48 $2.98 Prunes (Italian, Stanley, etc)

(Bushel) .912 .975 $1.05 Raspberries, Black (Quart) .326 .348 .376 Raspberries, Red (Quart) .454 .485 .524 Strawberries, Fresh (Quart) .173 .185 .20 Strawberrues, Process (Pound) .124 .133 .144

History: 1979 AC.

R 408.713 Scale of piecework for sorting and bunching strawberry plants.

Rule 13. The following scale of piecework applicable to the sorting and bunching of strawberry plants is determined by the wage deviation board to be equivalent to the prevailing minimum hourly wage for such work: Crop/Unit Rate Eff. Rate Eff. Rate Eff. 1/1/79 1/1/80 1/1/81 Strawberries, Machine Assisted (Thousand) $5.71 $6.10 $6.59 Strawberries, Nonmechanically Assisted (Thousand) $7.62 $8.15 $8.81

History: 1954 ACS 55, Eff. Aug. 14, 1968; 1954 ACS 65, Eff. Sept. 21, 1970; 1954 ACS 83, Eff. Apr. 2, 1975; 1954 ACS 95, Eff. June 13, 1978; 1954 ACS 99, Eff. Apr. 18, 1979; 1979 AC.

PART 2. OVERTIME COMPENSATION

R 408.721 Determining workweek for overtime compensation.

Rule 21. (1) An employer shall establish an employee's workweek and shall indicate the beginning time and day of the workweek in the employment record for the employee.

(2) Once the beginning time of an employee's workweek is established, it remains fixed and may be changed only if the change is intended to be permanent and is not designed to evade the overtime requirements of the act.

(3) Each workweek stands alone. Averaging of hours over 2 or more weeks is prohibited, regardless of whether the employee works on a standard or swing shift schedule and regardless of whether the employee is paid on an hourly, daily, weekly, biweekly, monthly, piecework, commission or other basis, except as otherwise provided by law.

History: 1979 ACS 8, Eff. Dec. 2, 1981; 2000 MR 1, Eff. Feb. 1, 2000.

R 408.722 Work period.

Rule 22. (1) An employer shall establish an employee's work period and shall indicate the beginning and ending time and date of the work period in the employment record for the employee.

(2) The work period need not coincide with the pay period.

(3) The beginning and ending date of a work period shall not be changed, regardless of the number of hours worked within the period, unless the change is intended to be permanent and is not designed to evade the overtime requirements of the act.

(4) An employer may have different work periods for different employees.

History: 1979 ACS 8, Eff. Dec. 2, 1981; 2000 MR 1, Eff. Feb. 1, 2000.

R 408.723 Computing regular rate of pay for overtime compensation.

Rule 23. (1) If an employee is paid on an hourly rate plus commission or salary plus commission, then the salary and commission shall be considered as gross earnings for the workweek, and the regular rate is obtained by dividing the sum by the number of hours for which the salary was paid.

(2) If an employee is paid on a piece-rate basis, then the regular rate of pay is computed by adding together the total earnings of the workweek from piece rates and all other earnings and any sums paid for other hours worked. This sum total is divided by the number of hours worked in that week to yield the pieceworker's regular rate for that week.

History: 1981 AACS; 1998-2000 AACS.

R 408.724 Rescinded.

History: 1981 AACS; 1998-2000 AACS.

R 408.725 Rescinded.

History: 1981 AACS; 1998-2000 AACS.

R 408.726 Rescinded.

History: 1981 AACS; 1998-2000 AACS.

R 408.727 Rescinded.

History: 1981 AACS; 1998-2000 AACS.

R 408.728 Amusement and recreational establishments exempt from overtime provisions.

Rule 28. (1) An employer's business shall be considered an amusement or recreational establishment if it complies with all of the following provisions:

(a) It is open for the general public at a fixed site.

(b) It is open primarily to provide leisure activities for those who attend.

(2) A grocery store, restaurant, motel, curio, souvenir shop, or any other retail and service establishment is not considered an amusement or recreational establishment unless it is so related to an amusement or recreational establishment that it could not, in a reasonable manner, offer its services to the general public independently, and is not open to the general public beyond the months the amusement or recreational establishment to which it is related is open.

(3) The exempt status of an amusement or recreational establishment and a grocery store, restaurant, motel, curio, souvenir shop, or other retail and service establishment operated under the same ownership shall be determined separately for each establishment.

(4) If an amusement or recreational establishment operates at widely separated fixed locations, the exempt status of each fixed location shall be determined separately.

History: 1981 AACS; 1998-2000 AACS.

R 408.729 Employees of an amusement or recreational establishment.

Rule 29. (1) Employees of a central office or warehouse or office which services an amusement or recreational establishment shall not be considered employed by the amusement or recreational establishment.

(2) An employee whose duties are divided between working for an amusement or recreational establishment and a nonexempt business owned by the same employer shall not be exempt from the overtime provisions of the act for any workweek in which work performed at the nonexempt business exceeds 20% of the hours worked.

History: 1981 AACS; 1998-2000 AACS.

R 408.730 Employment in agriculture.

Rule 30. (1) An employee shall not be considered employed in agriculture for any workweek in which nonagricultural work exceeds 20% of the hours worked in the workweek.

(2) An employee of an establishment which produces agricultural commodities and sells such commodities to the general public shall not be considered employed in agriculture, regardless of his or her duties, if more than 50% of the gross income of the establishment results from sales to the general public.

History: 1981 AACS; 1998-2000 AACS.

R 408.731, R 408.732 Rescinded.

History: 1979 AC; 1981 AACS.

R 408.733 Rescinded.

History: 1981 AACS; 1998-2000 AACS.

R 408.734 Rescinded.

History: 1981 AACS; 1998-2000 AACS.

R 408.735 Rescinded.

History: 1981 AACS; 1998-2000 AACS. Wage Deviation DEPARTMENT OF CONSUMER AND INDUSTRY SERVICES BUREAU OF SAFETY AND REGULATION WAGE HOUR DIVISION WAGE DEVIATION

(By authority conferred on the director of labor by section 6 of Act No. 154 of the Public Acts of 1964, as amended, being S408.386 of the Michigan Compiled Laws)

R 408.771 Scope.

Rule 1. (1) These rules require that handicapped workers who are being paid sub-minimum wages shall receive wage rates commensurate with their productive capacity.

(2) These rules require that employers of handicapped workers who are being paid sub-minimum wages shall maintain records which substantiate the fact that the handicapped workers are being paid wage rates commensurate with their productive capacity.

(3) These rules establish procedures for an employer of handicapped workers to apply for wage deviation certificates under section 7 of the act.

(4) These rules establish administrative proceedings to grant wage deviation certificates under the act.

History: 1983 AACS.

R 408.772 Definitions.

Rule 2. As used in these rules:

(a) "Act" means Act No. 154 of the Public Acts of 1964, as amended, being S408.381 et seq. of the Michigan Compiled Laws.

(b) "Board" means wage deviation board.

(d) "Department" means the department of labor.

(e) "Deviated wage rate" means an hourly wage or piece rate which is below the minimum wage rate prescribed in section 4 of the act, is based upon a handicapped worker's productive capacity, and is commensurate with the prevailing industry wage rate.

(f) "Director" means the director of the department or his or her authorized representative.

(g) "Handicapped worker" means an individual whose earning or productive capacity is limited by a physical or mental impairment.

(h) "Locality" means the county, city, village, or township in which the work is performed.

(i) "Prevailing industry wage rate" means the overall average wage rate paid to nonhandicapped workers in industry in the locality for essentially the same type of work.

(j) "Private sector employment" means remunerative employment within a setting other than a rehabilitation facility.

(k) "Rehabilitation facility" means a charitable or non-profit organization or institution or program including the state and its political subdivisions, agencies, and instrumentalities for the purpose of carrying out a recognized program of habilitation or rehabilitation for handicapped individuals and for providing such individuals with remunerative employment or other occupational habilitation or rehabilitation activity of an educational or therapeutic nature.

(l) "Wage deviation certificate" means a written document issued by the director to either a rehabilitation facility or a private sector employer which authorizes the payment of a deviated wage rate to a group of handicapped workers employed by a rehabilitation facility or to an individual handicapped worker employed by a private sector employer.

History: 1983 AACS.

R 408.773 Commensurate wage.

Rule 3. (1) A handicapped worker covered by a wage deviation certificate shall be paid a commensurate wage.

(2) A handicapped worker covered by a wage deviation certificate shall not be paid less than 1 1/2 times his or her commensurate wage rate for all work in excess of the maximum hours as required by section 4a of the act.

History: 1983 AACS.

R 408.774 Prevailing industry wage rate; determination; documentation.

Rule 4. (1) To determine the prevailing industry wage rate for a specific type of work, a rehabilitation facility shall utilize 1 of the following sources:

(a) The state employment service.

(b) Private sector employers in the locality performing similar work.

(c) Recent wages, or wages adjusted for wage increases, which were previously determined by the rehabilitation facility for previous work of a similar nature.

(2) Where the specific type of work is not performed in the private sector in the locality in which the rehabilitation facility is located, the prevailing industry wage rate shall be at least the minimum hourly rate established by the act.

(3) Where a variety of industry wage rates are paid for the work in question, the prevailing wage shall be the overall average wage paid.

(4) A rehabilitation facility shall document efforts to obtain prevailing wage information, and maintain such written documentation for not less than 3 years.

(5) A rehabilitation facility shall review and update prevailing wage information to reflect any changes not less than every 6 months.

History: 1983 AACS.

R 408.775 Time study for piece rate; conduct; purpose; retention of records; review.

Rule 5. (1) Where a prevailing industry piece rate cannot be established in accordance with R 408.774, a rehabilitation facility shall conduct a time study to determine the piece rate to be paid to a handicapped worker. The following steps shall constitute an acceptable time study method for piece rates:

(a) Establish the steps of each type of work to be performed by the handicapped worker.

(b) Have the type of work performed by a nonhandicapped worker for a 50-minute period.

(c) Determine the hourly productivity of the nonhandicapped worker by computing the sum of pieces produced during the 50-minute period.

(d) Determine the piece rate to be paid to the handicapped worker by dividing the prevailing industry hourly wage rate by the hourly productivity of the nonhandicapped worker.

(2) If methods other than those in subrule (1) of this rule are used, the rehabilitation facility shall demonstrate that such methods accurately establish the commensurate wage to be paid to the handicapped worker.

(3) A rehabilitation facility shall retain records of time studies used to determine piece rates for 3 years.

(4) Piece rates shall be reviewed and updated not less than every 6 months to reflect changes in prevailing industry wage rates.

History: 1983 AACS.

R 408.776 Time studies for hourly rates; conduct; retention of records; review.

Rule 6. (1) A rehabilitation facility shall conduct a time study to determine the deviated wage rate to be paid to the handicapped worker. The following steps shall constitute an acceptable time study method:

(a) Establish the prevailing industry wage rate for the work to be performed in accordance with R 408.774.

(b) Establish the steps of each type of work to be performed.

(d) Determine the hourly productivity of the nonhandicapped worker by computing the sum of tasks performed during the 50-minute period.

(e) Have the type of work performed by the handicapped worker for a 50-minute period.

(f) Determine the hourly productivity of the handicapped worker by computing the sum of tasks performed during the 50-minute period.

(g) Determine the percentage of the handicapped worker's productive capacity as compared to the hourly productivity established for the nonhandicapped worker.

(h) Determine the hourly rate to be paid to the handicapped worker by multiplying the percentage of the handicapped worker's productive capacity by the established prevailing industry wage rate.

(3) A rehabilitation facility shall retain records of time studies used to determine hourly wages for 3 years.

(4) The handicapped worker's productivity shall be measured no less than every 6 months and the hourly rate shall be adjusted to ensure that the commensurate wage is paid to the handicapped worker.

(5) Hourly wage rates shall be reviewed and updated not less than every 6 months to reflect changes in prevailing industry wages.

History: 1983 AACS.

R 408.777 Wage deviation certificate; application; specifications; duration; issuance and denial; amendment.

Rule 7. (1) An application for a wage deviation certificate shall be filed by a rehabilitation facility or by a private sector employer seeking to pay a deviated wage rate to handicapped workers not covered under section 14(c) of the fair labor standards act of 1938, as amended, 29

U.S.C. 214. A unit of rehabilitation facility having an identifiable program which operates at a different location under separate supervision shall file applications separately.

(2) A certificate shall specify the terms and conditions under which it is granted.

(3) A certificate shall take effect on the date issued and shall be effective for 12 months. Handicapped workers may be paid a deviated wage rate only during the effective period of the certificate.

(4) If a certificate is issued by the director, a copy shall be sent to the rehabilitation facility or private sector employer. If denied, the applicant shall be notified in writing of the denial and the reasons for the denial and of the appeal rights provided for in R 408.784 and

R 408.785.

(5) The terms of a certificate may be amended upon written request from a rehabilitation facility or private sector employer and subsequent approval by the director.

History: 1983 AACS.

R 408.778 Certification of applications for private sector employment.

Rule 8. (1) An application submitted by a private sector employer not covered by the definition of a rehabilitation facility shall be certified by either the Michigan rehabilitation service in the department of education or the commission for the blind in the department of labor, or both.

(2) Certification by the commission for the blind is required when the worker covered under the certificate is legally blind, as determined pursuant to section 1(a) of Act No. 260 of the Public Acts of 1978, being S393.351(a) of the Michigan Compiled Laws. All other applicants shall be certified by the Michigan rehabilitation service.

(3) Certification shall involve a determination that the productive capacity of the handicapped worker to be covered by the certificate is genuinely impaired by a physical or mental disability and that the handicapped worker is to be paid a commensurate wage.

History: 1983 AACS.

R 408.779 Criteria for issuance of certificate.

Rule 9. The following criteria as established by the board shall be considered by the director prior to the issuance of a wage deviation certificate:

(a) An applicant's previous and current compliance with the act.

(b) Whether the handicapped workers covered by the certificate are being paid a commensurate wage.

(c) Whether the applicant can document, for each worker covered by the certificate, that the individual's productive capacity is impaired and that the impairment is caused by a physical or mental disability.

History: 1983 AACS.

R 408.780 Renewal certificate.

Rule 10. (1) A renewal certificate may be issued by the director to a rehabilitation facility or private sector employer whose current certificate is near expiration provided an application for renewal has been properly filed not less than 60 calendar days prior to the expiration date of the current certificate.

(2) The current certificate shall remain in effect until the application for the renewal has been granted or denied.

(3) The renewal certificate shall take effect on the expiration date of the current certificate and shall remain in effect for 12 months.

(4) Issuance of a renewal certificate shall be contingent upon a finding that the applicant meets the requirements of the act.

History: 1983 AACS.

R 408.781 Temporary certificate.

Rule 11. A temporary certificate may be issued by the director to a rehabilitation facility or private sector employer applying for a certificate. Issuance of a temporary certificate shall be contingent upon a finding by the director that the applicant has provided satisfactory evidence that a commensurate wage will be paid to the handicapped workers covered by the certificate, and that the requirements of the act will be met. A temporary certificate shall be effective for no more than 6 months' duration.

History: 1983 AACS.

R 408.782 Records.

Rule 12. (1) A rehabilitation facility granted a certificate shall maintain, and have available for inspection by the director, records including the following:

(a) Documentation substantiating each handicapped worker's disability.

(b) Total hours worked each pay period.

(d) For employees paid on a piece work basis, the piece rate paid and the total number of units produced at such piece rate for each pay period.

(e) Time studies and calculations made to determine each handicapped worker's productive capacity and the piece rate or hourly rate to be paid each handicapped worker.

(f) Sources used to establish the prevailing industry wage rate.

(2) A private sector employer granted a certificate shall maintain and have available for inspection by the director records to include the following:

(a) Documentation substantiating each handicapped worker's disability.

(b) Total hours worked each pay period.

(d) Certification by Michigan rehabilitation services or the commission for the blind that the productive capacity of the handicapped worker is genuinely impaired by a physical or mental disability and that the handicapped worker is to be paid a commensurate wage.

(3) These records shall be maintained for not less than 3 years.

History: 1983 AACS.

R 408.783 Cancellation of certificate.

Rule 13. (1) If it appears that a provision of the act has been violated, the director shall issue a written notice stating the facts or conduct that constitute the alleged violation.

(2) This written notice shall provide the rehabilitation facility or private sector employer with an informal opportunity to demonstrate compliance with the act. Compliance shall be demonstrated within 30 calendar days after the date of the written notice.

(3) If the rehabilitation facility or private sector employer does not demonstrate compliance, the director shall issue a notice of hearing advising of the commencement of proceedings against the rehabilitation facility or private sector employer to determine whether its certificate should be cancelled. The director shall conduct a hearing pursuant to chapter 4 of Act No. 306 of the Public Acts of 1969, as amended, being SS24.271 to 24.287 of the Michigan Compiled Laws.

(4) Upon conclusion of the hearing if it is found that a provision of the act has been violated, the director may cancel the certificate.

History: 1983 AACS.

R 408.784 Appeal of decision denying certificate; hearing.

Rule 14. If a decision to deny a certificate is appealed by written objection of a rehabilitation facility or private sector employer to the department within 30 calendar days after receipt of the notice pertaining to such denial, the director shall conduct a hearing pursuant to chapter 4 of Act No. 306 of the Public Acts of 1969, as amended, being SS24.271 to

24.287 of the Michigan Compiled Laws.

History: 1983 AACS.

R 408.785 Appeal to circuit court; finality of resolution.

Rule 15. (1) A rehabilitation facility or private sector employer aggrieved by the decision of the director following a hearing under

R 408.783 and R 408.784 may, within 60 days after date of mailing of the decision, appeal to the circuit court by filing a petition for review pursuant to the provisions of chapter 6 of Act No. 306 of the Public Acts of 1969, as amended, being SS24.301 to 24.306 of the Michigan Compiled Laws.

(2) If the decision of the director to cancel or deny a certificate in accordance with R 408.783 and R 408.784 is not appealed to circuit court within 60 days after the date of mailing, it shall be final.

History: 1983 AACS.

R 408.786 Inspections.

Rule 16. (1) The director may enter upon the premises of a rehabilitation facility or private sector employer during normal business hours to conduct inspections to determine whether the rehabilitation facility or private sector employer is in compliance with the act.

(2) Inspection reports shall be utilized in evaluating the issuance of renewal certificates.

History: 1983 AACS.

R 408.787 Rescission.

Rule 17. R 408.751 to R 408.767 of the Michigan Administrative Code, appearing on pages 3178 to 3181 of the 1979 Michigan Administrative Code, are rescinded.

History: 1983 AACS. Youth Employment Standards DEPARTMENT OF LABOR & ECONOMIC GROWTH WAGE AND HOUR DIVISION YOUTH EMPLOYMENT STANDARDS

(By authority conferred on the department of labor and economic growth by section 20 of 1978 PA 90 and Executive Reorganization Order Nos. 1996-2, 1997-12, 2002-1, and 2003-1, MCL 409.120, 445.2001, 421.94, 445.2004, and 445.2011)

PART 1. GENERAL PROVISIONS

R 408.6199 Rescission.

Rule 199. R 408.201 to R 408.206 of the Michigan Administrative Code, appearing on pages 3164 to 3169 of the 1979 Michigan Administrative Code, are rescinded.

History: 1988 AACS.

PART 2. HAZARDOUS OCCUPATIONS IN GENERAL EMPLOYMENT

R 408.6201 Scope.

Rule 201. This part prescribes rules to ensure the safe, legal employment of minors in nonagricultural employment and lists those occupations declared to be hazardous to the safety, health, and well-being of minors.

History: 1988 AACS.

R 408.6202 Employment in hazardous occupations prohibited; deviation from rules.

Rule 202. (1) A minor shall not be employed in any of the occupations declared to be hazardous by this part.

(2) Deviations from these rules may be granted by the director of the department or his or her designee when it is determined to be in the best interests of the minor and the community.

History: 1988 AACS; 2003 AACS.

R 408.6203 Definitions; A to E.

Rule 203. As used in this part:

(a) "Act" means 1978 PA 90, MCL 409.101 et seq.

(b) "Clay construction products" means all of the following:

(i) Brick.

(ii) Hollow structural tile.

(iii) Sewer pipe and kindred products.

(iv) Refractories.

(v) Other clay products, such as any of the following:

(A) Architectural terra cotta.

(B) Glazed structural tile.

(D) Stove lining.

(E) Chimney pipes and tops.

(F) Wall coping.

(G) Drain tile.

(c) "Confined space" means an enclosed area which does not have a natural or mechanically induced supply of fresh air, including all of the following:

(A) A bin.

(B) A tank.

(D) A vault.

(E) A well.

(d) "Construction operation" means the work designated in sector 233 - building, developing, and general contracting, sector 234 - heavy construction, and sector 235 - special trade contractors, of the North American industry classification system - United States, 1997

(NAICS) published by the office of management and budget, which are adopted by reference. The 1997 NAICS manual may be purchased from the United States Department of Commerce, Technology Administration, National Technical Information Service, 5285 Port Royal Road, Springfield, Virginia at a cost of $32.50. Sector 233 - building, developing, and general contracting, sector 234 - heavy construction, and sector 235 - special trade contractors, of the North American industry classification system - United States, 1997 (NAICS) manual are available for inspection at, or may be purchased from the Michigan Department of Labor and Economic Growth, Wage and Hour Division, 7150 Harris Drive, P.O. Box 30476, Lansing, MI 48909, at a cost of $2.00.

(e) "Crane" means a power-driven machine which is for lifting and lowering a load and moving it horizontally and in which the hoisting mechanism is an integral part of the machine.

(f) "Derrick" means a power-driven apparatus consisting of a mast or equivalent members held at the top by guys and braces, with or without a boom, for use with a hoisting mechanism and operating ropes.

(g) "Department" means the department of labor and economic growth.

(h) "Director" means the director of the department or his or her authorized representative.

(i) "Elevator" means any power-driven hoisting or lowering mechanism equipped with a car or platform which moves in guides in a substantially vertical direction. This includes both passenger and freight elevators, but does not include dumbwaiters.

(j) "Employ" means engage, permit, or allow to work.

(k) "Employer" means a person, firm, or corporation which employs a minor and includes the state or a political subdivision of the state, an agency or instrumentality of the state, and an agent of an employer.

(l) "Exempt" means employment or services performed that are not covered by these rules.

(m) "Explosives" or "articles containing explosive components" means any chemical compound, mixture, or device, the primary purpose of which is to function by explosion; that is, substantially instantaneous decomposition with the release of heat and gas. Explosives include, but are not limited to, all of the following:

(i) Ammunition.

(ii) Black powder.

(iii) Blasting caps.

(iv) Blasting agents.

(v) Fulminate of mercury.

(vi) Fireworks.

(vii) Detonating primers.

(viii) Dynamite.

(ix) Lead azide.

(x) Nitroglycerin.

(xi) Picric acid.

(xii) Smokeless powder.

History: 1988 AACS; 2003 AACS; 2006 AACS.

R 408.6204 Definitions; H to O.

Rule 204. As used in this part:

(a) "Hazardous substances" means a contaminant, substance, or mixture of substances which is toxic, corrosive, an irritant, a strong sensitizer, or flammable or which generates pressure through decomposition, heat, or other means, if the substance or mixture of substances is capable of causing substantial personal injury, impairment, or substantial illness through absorption, inhalation, or personal contact. The signal word to designate the degree of hazard is "DANGER" as prescribed in R 408.11612 of the Michigan Administrative Code.

(b) "Hoist" means a power-driven apparatus for raising or lowering a load by the application of a pulling force that does not include a car or platform running in guides.

(c) "Low-lift platform truck" means a self-loading truck equipped with a load platform intended primarily for transporting, but not the tiering of, loaded skid platforms.

(d) "Manlift" means a device intended for the conveyance of persons which consists of platforms or brackets mounted on or attached to an endless belt, cable, chain, or similar method of suspension, which operates in a substantially vertical direction, and which is supported by and driven through pulleys, sheaves, or sprockets at the top or bottom.

(e) "Minor" means a person under 18 years of age, but does not include any of the following:

(i) An individual 16 years of age or older who has completed the requirements for graduation from high school.

(ii) An individual 17 years of age or older who has successfully passed the general educational development test.

(iii) An emancipated individual as defined by section 4 of Act No. 293 of the Public Acts of 1968, as amended, being S722.4 of the Michigan Compiled Laws.

(f) "Motorized hand truck" means a truck designed for the transportation of, but not the tiering of, materials that are to be controlled by a walking operator.

(g) "Motor vehicle" means any automobile, truck, truck-tractor, trailer, semitrailer, motorcycle, or similar vehicle propelled or drawn by mechanical power and designed for use as a means of transportation, but does not include any vehicle operated exclusively on rails.

(h) "Occupations in connection with logging" means all work performed in connection with any of the following:

(i) The felling of timber.

(ii) The bucking or converting of timber into any of the following:

(A) Logs.

(B) Poles.

(D) Ties.

(E) Bolts.

(F) Pulpwood.

(G) Chemical wood.

(H) Excelsior wood.

(I) Cordwood.

(J) Fence posts.

(K) Similar products.

(iii) The collecting, skidding, yarding, loading, transporting, and unloading of the products specified in paragraph (ii) of this subdivision in connection with logging.

(iv) The constructing, repairing, and maintaining of roads, railroads, flumes, or camps used in connection with logging.

(v) The moving, installing, rigging, and maintenance of machinery or equipment used in logging.

(i) "Occupations in or about slaughtering and meat-packing establishments rendering plants, or wholesale, retail, or service establishments" means all work performed in or about such establishments in connection with any of the following:

(i) Work on the killing floor, in curing cellars, and in hide cellars.

(ii) Work involving the recovery of lard and oils.

(iii) Work involving the tankage or rendering of any of the following:

(A) Dead animals.

(B) Animal offal.

(D) Scrap meats.

(E) Blood and bones into stock feeds.

(F) Tallow.

(G) Inedible greases.

(H) Fertilizer ingredients.

(I) Similar products.

(iv) Work involving the operation or feeding of all power-driven meat-processing machines.

(v) Work involving any boning operations.

(vi) Work involving the hand-lifting or hand-carrying of any carcass or half carcass of beef, pork, or horse or any quarter carcass of beef or horse.

(vii) Work involving the pushing or dropping of any suspended carcass, half carcass, or quarter carcass.

(j) "Occupations in the operation of any sawmill, lath mill, shingle, or cooperage stock mill" means all work performed in or about any such mill in connection with any of the following:

(i) Storing of logs and bolts.

(ii) Converting logs or bolts into sawn lumber, laths, shingles, or cooperage stock.

(iii) Storing, drying, and shipping lumber, laths, shingles, cooperage stock, or other products of such mills.

(iv) Other work performed in connection with the operation of any sawmill, lath mill, shingle mill, or cooperage stock mill.

(k) "Operations in and around a mine or quarry" means all work performed at any of the following locations:

(i) Underground in mines or quarries.

(ii) On the surface at underground mines and underground operations.

(iii) At or about placer mining operations.

(iv) At or about bore-hole mining operations.

(v) At or about dredging operations for clay, sand, or gravel.

(vi) In or about all metal mills, washer plants, or grinding mills which reduce the bulk of the extracted minerals.

(vii) At or about any other crushing, grinding, screening, sizing, washing, or cleaning operations performed upon the extracted minerals, except where such operations are performed as a part of a manufacturing process.

(l) "Outside helper" means any individual, other than the driver, whose work includes riding on a motor vehicle outside the cab.

History: 1988 AACS.

R 408.6205 Definitions; P to W.

Rule 205. As used in this part:

(a) "Power-driven bakery machines" means any of the following:

(i) Any horizontal or vertical dough mixer.

(ii) Batter mixer.

(iii) Any bread-dividing, bread-rounding, or bread-molding machine.

(iv) Any dough brake or dough sheeter.

(v) Any combination bread-slicing and bread-wrapping machine.

(vi) Any cake-cutting band saw.

(vii) Any cookie machine.

(viii) Any cracker machine.

(b) "Power-driven meat-processing machine" means any of the following:

(i) Meat patty-forming machines.

(ii) Meat and bone cutting saw, knives, head splitters, and guillotine cutters.

(iii) Snout pullers and jaw pullers.

(iv) Skinning machines and horizontal rotary washing machines.

(v) Casing cleaning machines, such as stripping, crushing, and finishing machines.

(vi) Grinding, mixing, chopping, and hashing machines.

(vii) Presses.

(c) "Power-driven metal-forming, metal-punching, and metal-shearing machines" means power-driven metalworking machines, other than machine tools, which change the shape of or cut metal by means of tools, such as dies, rolls, or knives which are mounted on rams, plungers, or other moving parts.

(d) "Power-driven paper products machines" means power-driven machines used in the remanufacture or conversion of paper or pulp into a finished product.

(e) "Power-driven woodworking machines" means all fixed or portable machines or tools driven by power and used or designed for cutting, shaping, forming, surfacing, nailing, stapling, wire stitching, fastening, or otherwise assembling, pressing, or printing wood or veneer.

(f) "Power industrial truck" means a mobile, power-driven vehicle used to carry, push, pull, lift, stack, or tier material.

(g) "Respiratory equipment" means any of the following:

(i) A self-contained breathing apparatus.

(ii) A supplied-air respirator.

(iii) An air-purifying respirator.

(iv) A gas mask.

(v) A chemical cartridge respirator.

(h) "Self-luminous compound" means any mixture of phosphorescent material and radium, mesothorium, or other radioactive element.

(i) "Silica refractory products" means refractory products produced from raw materials and containing free silica as their main constituent.

(j) "Wrecking, demolition, and shipbreaking operations" means all work, including cleanup and salvage work, performed at the site of the total or partial razing, demolishing, or dismantling of a building, bridge, steeple, tower, chimney, other structure, or ship or other vessel.

History: 1988 AACS.

R 408.6206 Exemptions.

Rule 206. These rules shall not apply to, or prohibit a minor from engaging in, the following activities or exempt employment:

(a) Employment of a student minor 14 years of age or older by an employer if a written agreement or contract is entered into between the employer and the board of education of the school district in which the student minor is enrolled.

(b) Employment in a business owned and operated by the parent or guardian of a minor.

(c) Employment of a student minor by a school, academy, or college in which a student minor who is 14 years of age or older is enrolled.

(d) Domestic work or chores in connection with private residences.

(e) Soliciting, distributing, selling, or offering for sale newspapers, magazines, periodicals, or political or advertising matter.

(f) Shoe shining.

(g) Services performed as members of recognized youth-oriented organizations that are engaged in citizenship training and character building, if the services are not intended to replace employees in occupations for which workers are ordinarily paid.

(h) Farm work designated in sector 11-agriculture, forestry, fishing, and hunting, of the North American industry classification system-United States, 1997 (NAICS), published by the office of management and budget if the employment is not in violation of a standard established by the department. The 1997 NAICS manual may be purchased from the United States Department of Commerce, Technology Administration, National Technical Information Service, 5285 Port Royal Road, Springfield, Virginia 22161, at a cost of $32.50. Sector 11-agriculture, forestry, fishing, and hunting, of the North American industry classification system - United States, 1997 (NAICS) manual is available for inspection at, or may be purchased from the Michigan Department of Labor and Economic Growth, Wage and Hour Division, 7150 Harris Drive, P.O. Box 30476, Lansing, MI 48909, at a cost of $2.00.

History: 1988 AACS; 2006 AACS.

R 408.6207 Adult supervision of minor employees.

Rule 207. A minor shall not be employed subject to the act unless the employer or an employee who is 18 years of age or older provides supervision.

History: 1988 AACS.

R 408.6208 Prohibited occupations; construction; excavation; roofing; wrecking; demolition; ship-breaking operations; working with explosive materials, hazardous substances, radioactive substances, respiratory equipment; working in a confined space; machine operation and maintenance; operating special equipment; working with power-driven hoisting apparatus; occupations requiring use of motor vehicle.

Rule 208. (1) A minor less than 16 years of age shall not be employed in any occupations in a construction operation, as defined in R 408.6203(d), to include repair or the cleanup of a construction site.

(2) A minor shall not be employed in any occupation involving construction work; additions; improvements; excavating; highway, bridge, and street construction; roofing, as defined in R 408.6203(d), or wrecking; demolition; or ship-breaking operations.

(3) A minor shall not be employed in any occupation in or about plants or establishments which manufacture or store explosive materials or articles containing explosive materials, as defined in R 408.6203(m), including ammunition exceeding .60 caliber in size, except where both of the following criteria are met:

(a) None of the work performed in the area involves the mixing, transportation, handling, or use of explosive materials.

(b) The minor's work area is separated from the hazardous area by the distance prescribed for inhabited buildings in table 1, or the minor's work area is separated from the hazardous area by an earthen bank not less than 8 feet in height.

(4) Table 1 reads as follows: Distances for Storage of Explosives Explosives g Distance in feet when storage is barricaded b,c,d,e Pounds Pounds From From From Separation Over not over inhabited passenger public of maga- Buildings railways highways zines f 2 5 70 30 30 6 5 10 90 35 35 8 10 20 110 45 45 10 20 30 125 50 50 11 30 40 140 55 55 12 40 50 150 60 60 14 50 75 170 70 70 15 75 100 190 75 75 16 100 125 200 80 80 18 125 150 215 85 85 19 150 200 235 95 95 21 200 250 255 105 105 23 250 300 270 110 110 24 300 400 295 120 120 27 400 500 320 130 130 29 500 600 340 135 135 31 600 700 355 145 145 32 700 800 375 150 150 33 800 900 390 155 155 35 900 1,000 400 160 160 36 1,000 1,200 425 170 165 39 1,200 1,400 450 180 170 41 1,400 1,600 470 190 175 43 1,600 1,800 490 195 180 44 1,800 2,000 505 205 185 45 2,000 2,500 545 220 190 49 2,500 3,000 580 235 195 52 3,000 4,000 635 255 210 58 4,000 5,000 685 275 225 61 5,000 6,000 730 295 235 65 6,000 7,000 770 310 245 68 7,000 8,000 800 320 250 72 8,000 9,000 835 335 255 75 9,000 10,000 865 345 260 78 10,000 12,000 875 370 270 82 12,000 14,000 885 390 275 87 14,000 16,000 900 405 280 90 15,000 18,000 940 420 285 94 18,000 20,000 975 435 290 98 20,000 25,000 1,055 470 315 105 25,000 30,000 1,130 500 340 112 30,000 35,000 1,205 525 360 119 35,000 40,000 1,275 550 380 124 40,000 45,000 1,340 570 400 129 45,000 50,000 1,400 590 420 135 50,000 55,000 1,460 610 440 140 55,000 60,000 1,515 630 455 145 60,000 65,000 1,565 645 470 150 65,000 70,000 1,610 660 485 155 70,000 75,000 1,655 675 500 160 75,000 80,000 1,695 690 510 165 80,000 85,000 1,730 705 520 170 85,000 90,000 1,760 720 530 175 90,000 95,000 1,790 730 540 180 95,000 100,000 1,815 745 545 185 100,000 110,000 1,835 770 550 195 110,000 120,000 1,855 790 555 205 120,000 130,000 1,875 810 560 215 130,000 140,000 1,890 835 565 225 140,000 150,000 1,900 850 570 235 150,000 160,000 1,935 870 580 245 160,000 170,000 1,965 890 590 255 170,000 180,000 1,990 905 600 265 180,000 190,000 2,010 920 605 275 190,000 200,000 2,030 935 610 285 200,000 210,000 2,055 955 620 295 210,000 230,000 2,100 980 635 315 230,000 250,000 2,155 1,010 650 335 250,000 275,000 2,215 1,040 670 360 275,000 300,000 2,275 1.075 690 385 Notes to Table Note a. All types of blasting caps in strengths through No. 8 shall be rated at 1 1/2 (0.68 kg) of explosives per 1,000 caps. Note b. "Barricaded" means that a building containing explosives is effectually screened from a magazine, building, railway, or highway, either by a natural barricade or by an artificial barricade of such height that a straight line from the top of any sidewall of the building containing explosives to the eave line of any magazine or building, or to a point 12 feet (3.66 m) above the center of a railway or highway, will pass through such intervening or artificial barricade. Note c. "Artificial barricade" means an artificial mound or revetted wall of earth of a minimum thickness of 3 feet (0.92 m). Note d. "Natural barricade" means natural features of the ground, such as hills or timber of sufficient density that the surrounding exposures which require protection cannot be seen from the magazine when the trees are bare of leaves. Note e. When a building containing explosives is not barricaded, the distances shown in Table 1 shall be doubled. Note f. When 2 or more storage magazines are located on the same property, each magazine shall comply with minimum distances specified from inhabited buildings, railways, and highways, and, in addition, they shall be separated from each other by not less than the distances shown for "Separation of magazines," except that the quantity of explosives contained in cap magazines shall govern in regard to the spacing of the cap magazines from magazines containing other explosives. If any 2 or more magazines are separated from each other by less than the specified "Separation of magazines" distances, then such 2 or more magazines, as a group, shall be considered as 1 magazine, and the total quantity of explosives stored in such group shall be treated as if stored in a single magazine located on the site of any magazine of the group and shall comply with the distances specified from other magazines, inhabited buildings, railways, and highways. Note g. This table applies only to the manufacture and permanent storage of commercial explosives. It is not applicable to the transportation of explosives or any handling or temporary storage necessary or incident thereto. It is not intended to apply to bombs, projectiles, or other heavily encased explosives. Note h. 1 pound = 0.454 kg; 1 foot = 0.305 m.

(5) A minor shall not be employed in any occupation involving the use of or exposure to hazardous substances, as defined in R 408.6204(a).

(6) A minor shall not be employed to work in any workroom in which any of the following occurs:

(a) Radium is stored or used in the manufacture of self-luminous compounds.

(b) A self-luminous compound, as defined in R 408.6205(h), is made, processed, packaged, stored, used, or worked on.

(c) Incandescent mantles made from fabric and solutions containing thorium salts are manufactured, processed, or packaged.

(d) Other radioactive substances are present in the air in average concentrations exceeding 10% of the maximum permissible concentrations in the air recommended for occupational exposure as set forth in the 40-hour week column of table 1 of the national council on radiation protection report no. 22, entitled, "Maximum Permissible Body Burdens and Maximum Permissible Concentrations of Radionuclides in Air and Water for Occupation Exposure," June 5, 1959, issue, which is adopted by reference in these rules and is available for inspection at the Lansing office of the Michigan Department of Labor and Economic Growth, Wage and Hour Division, 7150 Harris Drive, P.O. Box 30476, Lansing, MI 48909. This report may be purchased from the National Council on Radiation Protection and Measurements, 7910 Woodmont Avenue, Suite 400, Bethesda, MD 20814-3095, at the cost of $20.00. Part 22 of this report is available for inspection at, or may be purchased from the Michigan Department of Labor and Economic Growth, Wage and Hour Division, 7150 Harris Drive, P.O. Box 30476, Lansing, MI 48909, at a cost of $3.00.

(7) A minor shall not be employed in any occupation which requires the use of respiratory equipment, as defined in R 408.6205(g).

(8) A minor under 16 years of age shall not be employed in any occupation involving work in a confined space, as defined in R 408.6203(c).

(9) A minor shall not be employed in any occupation involving the operations, setup, repair, adjustment, oiling, or cleaning of any of the following machines:

(a) Power-driven woodworking machinery, as defined in R 408.6205(e).

(b) Power-driven metal-forming, metal-punching, and metal-shearing machines, as defined in R 408.6205(c).

(d) Power-driven paper products machinery, as defined in R 408.6205(d).

(e) Power-driven saws.

(f) Power-driven meat-processing machines, as defined in R 408.6205(b).

(10) A minor shall not operate, or assist in the operation of, including the starting, stopping, adjusting, feeding, or any other activity involving physical contact with, any of the following machines:

(a) Trencher or earth-moving equipment.

(b) Tractors exceeding 20 power-take-off horsepower, including connecting or disconnecting an implement or any of its parts to or from such a tractor; except that minors 16 to 17 years of age who are provided operating instructions from their employers may operate such tractors.

(11) A minor shall not be employed in work which involves any of the following activities:

(a) The operation of a power-driven hoisting apparatus, including an elevator, power industrial truck, crane, derrick, or hoist, except for the operation of an unattended automatic operation passenger elevator. An employer may apply for a deviation for 16- and 17-year-old minors to operate a motorized hand truck and low-lift platform truck, as defined in R 408.6204(c) and (f), in accordance with R 408.6303.

(b) Riding on a manlift or on a freight elevator, except for a freight elevator which is operated by an assigned operator.

(c) Assisting in the operation of a crane, derrick, or hoist as traditionally performed by crane hookers, crane chasers, hookers-on, riggers, rigger helpers, and similar occupations.

(12) A minor under 16 years of age shall not work under equipment or machinery which has been elevated by a hoist, jack, blocks, or hydraulic power system.

(13) A minor shall not be employed in any occupation which requires the operation of a motor vehicle on any public road or highway, except when such operation is occasional and incidental to the minor's primary work activities and if all of the following requirements are complied with:

(a) The gross vehicle weight does not exceed 6,000 pounds.

(b) The operation is restricted to daylight hours.

(c) The minor holds a state license valid for the type of motor vehicle operation involved in the job performed and has completed a state-approved driver education course.

(d) The vehicle is equipped with a seat belt or similar device for the driver and for each helper, and the employer has instructed each minor that such belts or other devices must be used.

(e) The operation does not involve the transporting of passengers or the towing of vehicles.

(14) A minor shall not be employed as an outside helper on any motor vehicle on a public highway.

History: 1988 AACS; 2003 AACS; 2006 AACS.

R 408.6209 Prohibited occupations; manufacture of brick, tile, and kindred products; welding and heat treating; brazing and soldering; tanning; logging and sawmilling; mining; working in foundry; operating lawn care equipment; working in slaughtering or meat-packing establishments; working from ladders or scaffolding; firefighting.

Rule 209.(1) A minor shall not be employed in any occupation involving exposure to the manufacturing of clay construction products, as defined in R 408.6203(b), or of silica refractory products, as defined in R 408.6205(i).

(2) A minor under 16 years of age shall not be employed to directly engage in welding or cutting with gas, arc, or resistance methods.

(3) A minor under 16 years of age shall not be employed to directly engage in heat treating, brazing, or soldering, except for soldering with a hand-held soldering gun or iron.

(4) A minor shall not be employed to directly engage in any aspect of the tanning process.

(5) A minor shall not be employed in any occupation, as defined in R 408.6204(g), in connection with logging or in the operation of any sawmill, lath mill, shingle mill, or cooperage stock mill, as defined in R 408.6204(i).

(6) A minor shall not be employed in any operation in or around a mine or quarry, as defined in R 408.6204(k).

(7) A minor under 16 years of age shall not be employed in any occupation involving ore reduction process, the casting of metals, or other activities with direct exposure to blast furnaces.

(8) A minor under 16 years of age shall not be employed in any occupation involving the operation of power-driven lawn mowers or cutters.

(9) A minor shall not be employed in occupations in or about slaughtering and meat-packing establishments, rendering plants, or wholesale, retail, or service establishments, as defined in R 408.6204(i).

(10) A minor under 16 years of age shall not be employed in any occupation requiring the use of ladders, scaffolds, or their substitutes.

(11) A minor shall not be employed to engage in the extinguishment of fires, except that a minor who is 16 or 17 years of age may be employed for forest fire suppression on fire control mop-up work in a crew organization under the direct supervision of a crew or line fire boss.

History: 1988 AACS.

PART 3. DEVIATIONS FROM ESTABLISHED STANDARDS OR FROM LEGAL HOURS OF EMPLOYMENT FOR 16- AND 17-YEAR-OLD MINORS

R 408.6301 Definitions.

Rule 301. As used in this part:

(a) "Act" means Act No. 90 of the Public Acts of 1978, as amended, being S409.101 et seq. of the Michigan Compiled Laws.

(b) "Community" means a group of people having common interests who live in the same locality.

(c) "Deviation" means a variance from the established hours or hazardous occupations granted by the department to a specific employer or individual.

(d) "Family hardship" means a condition whereby the economic well-being of the household in which a minor resides is dependent upon the earnings of the minor.

History: 1988 AACS.

R 408.6302 Application for deviation from legal hours of employment.

Rule 302. (1) An employer seeking approval to employ minors age 16 and older beyond the hours prescribed in the act shall file an application for a deviation from the legal hours of employment with the department.

(2) An application for a deviation shall include all of the following information:

(a) The name and address of the employer.

(b) The name and title of the person filing the application.

(c) An indication of the work schedule for hours to be worked before 6 a.m.and after 10:30 p.m. when school is in session and before 6 a.m. and after 11:30 p.m. when school is not in session.

(d) The address where the work is to be performed.

(e) A statement of the type of business.

(f) Verification that all of the following shall be maintained by the employer:

(i) Written permission of the parent or guardian for the minor to work the hours requested.

(ii) Records certifying that the combined school and work week does not exceed 48 hours when school is in session and that work hours do not exceed 48 hours when school is not in session.

(iii) A written statement from the school the minor attends verifying the number of hours the minor is in school.

History: 1988 AACS; 2003 AACS; 2006 AACS.

R 408.6303 Application for deviation from hazardous occupation standards.

Rule 303. (1) An employer seeking approval to employ minors age 16 and older in an occupation determined to be hazardous shall file an application for a deviation from a hazardous occupation with the department.

(2) An application for a deviation shall include all of the following information:

(a) The name and address of the firm.

(b) The name and title of the person filing the application.

(d) The school the minor is attending, if the minor is attending school.

(e) The address where the work is to be performed.

(f) A specification of the standard, or portion thereof, from which the applicant seeks a deviation.

(g) A statement of the type of business.

(h) A statement detailing how approval of the deviation will be in the best interests of the minor. The statement may include, but is not limited to, an indication that the minor is not attending school or that the request is based upon a family hardship.

(i) A statement indicating any training the minor has received in the proposed type of employment, including a copy of the certification of successful completion of the training program if certification was given.

(j) The maximum hours to be worked on a daily and weekly basis.

(k) A statement of how the safety, health, and personal well-being of the minor will be protected, including an assurance that all safety and health standards will be complied with and enforced by the employer.

(l) The written approval of the parent or guardian.

History: 1988 AACS; 2003 AACS; 2006 AACS.

R 408.6304 Effect of deviation.

Rule 304. A deviation shall take effect on the date issued.

History: 1988 AACS; 2003 AACS.

R 408.6305 Notice of granting of deviation to applicant and employees.

Rule 305. (1) The department, upon granting a deviation, shall notify, by mail, the applicant of the granting of the deviation, including the terms and conditions thereof.

(2) An employer, upon receiving notice that a deviation has been granted, shall notify the affected employees of the granting of the deviation by giving to them a copy of the deviation to be presented to the school work permit office for the purpose of securing a work permit.

History: 1988 AACS.

R 408.6306 Deviation modification, renewal, denial, or revocation.

Rule 306. (1) An employer may apply in writing to the department for a modification or renewal of a deviation issued under the act. The terms of a deviation may be modified upon written request from an employer and subsequent approval by the director.

(2) The department may, on its own motion, proceed to deny, modify, or revoke a deviation subject to written notice to the employer and subject to the employer's right to request a hearing. The director shall conduct a hearing pursuant to chapter 4 of Act No. 306 of the Public Acts of 1969, as amended, being SS24.271 to 24.287 of the Michigan Compiled Laws.

History: 1988 AACS.

R 408.6307 Appeal to circuit court; finality of resolution.

Rule 307. (1) An employer aggrieved by the decision of the director following a hearing under R 408.6306 may, within 60 days after the mailing of the decision, appeal to the circuit court by filing a petition for review pursuant to the provisions of chapter 6 of Act No. 306 of the Public Acts of 1969, as amended, being SS24.301 to 24.306 of the Michigan Compiled Laws.

(2) If the decision of the director to deny or revoke a deviation is not appealed to circuit court within 60 days after the date of mailing, it shall be final.

History: 1988 AACS.

R 408.6308 Record of deviation.

Rule 308. When a deviation is granted, a copy of the deviation shall be kept on file by the employer at the minor's place of employment.

History: 1988 AACS.

R 408.6309. Prohibited conduct.

Rule 309. (1) In addition to conduct otherwise prohibited, a person who employs a minor shall not do any of the following:

(a) Allow a minor to work in a prohibited occupation, as provided in

R 408.6208, R 408.6209, and the federal child labor regulations, 29

C.F.R. 570.1 et seq., if applicable.

(b) Fail to provide adult supervision as required by R 408.6207.

(d) Allow a minor under the age of 16 to work days or hours not allowed under section 10 of the act.

(e) Allow a minor age 16 to 17 to work days or hours not allowed under section 11 of the act without an approved deviation from the department.

(f) Fail to provide a minor with a meal or rest period, as required by section 12 of the act.

(g) Fail to satisfy the posting and time records requirements of section 13 of the act.

(2) A person employing a minor who violates any of the provisions of subrule

(1) of this rule is subject to the penalties in section 22(1) of the act.

History: 2006 AACS. Payment of Wages and Fringe Benefits DEPARTMENT OF LABOR & ECONOMIC GROWTH DIRECTOR'S OFFICE PAYMENT OF WAGES AND FRINGE BENEFITS

(By authority conferred on the director of the department of labor and economic growth by sections 9 and 12 of 1978 PA 390 and Executive Reorganization Order Nos. 1996-2, 1997-12, 2002-1, and 2003-1, MCL 408.479, 408.482, 445.2001, 421.94, and 445.2004, and 445.2011)

R 408.9001 Rescinded.

History: 1982 AACS; 1998-2000 AACS.

R 408.9002 Definitions; A to I.

Rule 2. (1) As used in these rules:

(a) "Act" means 1978 PA 390, MCL 408.471 et seq., and known as the payment of wages and fringe benefits act.

(b) "Complainant" means any person who submits a complaint alleging a violation of the act and who provides the information required by the department.

(d) "Voluntary payment in full" means either of the following:

(i) Payment of wages and fringe benefits claimed before the issuance of a departmental determination.

(ii) Payment of the full amount of wages and fringe benefits due, plus the 10% per annum penalty and any exemplary damages assessed within 14 days of the date of the determination. If the last day of the 14-day period is a Saturday, Sunday, or a state holiday, then that day is excluded and the period extends until the end of the next day that is not a Saturday, Sunday, or state holiday.

(2) As used in the act:

(a) "An employee employed in a bona fide administrative capacity" means an employee who is compensated on a salary basis at not less than $250.00 per week and whose primary duty is nonmanual work directly related to management policies of the general business operations or performing functions in the administration of an educational institution.

(b) "An employee employed in a bona fide executive capacity" means an employee to whom all of the following provisions apply:

(i) Compensation is on a salary basis at not less than $250.00 per week.

(ii) The employee's primary duty is management.

(iii) The employee supervises 2 or more employees.

(c) "An employee employed in a bona fide professional capacity" means an employee who is compensated on a salary basis at not less than $250.00 per week and whose primary duty is any of the following:

(i) Work in a field of science or learning that requires knowledge acquired by a prolonged course of specialized instruction.

(ii) Work in a recognized field of artistic endeavor that depends upon the talent of the employee.

(iii) Work in an educational institution as a teacher, tutor, instructor, or lecturer.

(d) "Bonus" means a premium or extra or irregular remuneration in addition to wages that is awarded to an employee under a written contract or written policy.

(e) "Director" means the director of the department or his or her authorized representative.

(f) "Informally resolve" means any of the following:

(i) Voluntary payment in full as defined in R 408.9002.

(ii) A settlement agreement as described in R 408.9026.

(iii) Withdrawal of the complaint as described in R 408.9027.

History: 1982 AACS; 1998-2000 AACS; 2003 AACS; 2006 AACS.

R 408.9003 Rescinded.

History: 1982 AACS; 1998-2000 AACS.

R 408.9004 Rescinded.

History: 1982 AACS; 1998-2000 AACS.

R 408.9005 Payment of fringe benefits on termination.

Rule 5. An employer shall pay fringe benefits due an employee at termination on the regularly scheduled payday for the period in which the termination occurs, unless otherwise specified in the terms of a written contract or written policy.

History: 1982 AACS; 1998-2000 AACS.

R 408.9006 Rescinded.

History: 1982 AACS; 1998-2000 AACS.

R 408.9007 Payment of wages on termination.

Rule 7. (1) An employer shall pay all wages due an employee who quits or is discharged, except for an employee who was engaged in the hand harvesting of crops, on the regularly scheduled payday for the period in which the termination occurs.

(2) An employer shall pay all wages due a discharged employee who was engaged in the hand harvesting or crops within 1 working day of the termination.

History: 1982 AACS; 1998-2000 AACS.

R 408.9008 Rescinded.

History: 1982 AACS; 1998-2000 AACS.

R 408.9009 Signed authorization; maintenance.

Rule 9. An employer shall maintain signed authorizations in the employment records.

History: 1982 AACS; 1998-2000 AACS.

R 408.9010 Rescinded.

History: 1982 AACS; 1998-2000 AACS.

R 408.9011 Rescinded.

History: 1982 AACS; 1998-2000 AACS.

R 408.9012 Statement of hours worked and pay earned.

Rule 12. An employer shall furnish each employee with a statement of the information required by section 9(2) of the act in a retainable form.

History: 1982 AACS; 1998-2000 AACS; 2003 AACS.

R 408.9013 Rescinded.

History: 1982 AACS; 1998-2000 AACS.

R 408.9014 Rescinded.

History: 1982 AACS; 1998-2000 AACS.

R 408.9015 Rescinded.

History: 1982 AACS; 1998-2000 AACS.

R 408.9016 Rescinded.

History: 1982 AACS; 1998-2000 AACS.

R 408.9017 Rescinded.

History: 1982 AACS; 1998-2000 AACS.

R 408.9018 Filing date.

Rule 18. The filing date of a complaint is the date the complaint form or other written complaint is received by the department.

History: 1982 AACS.

R 408.9019 Acceptance of complaints by the department.

Rule 19. The department shall accept a complaint form or other statement which provides all of the following information:

(a) Name and address of complainant.

(b) Name and address of employer who is alleged to have committed the violation.

(d) An estimate of the amount of wages or fringe benefits claimed.

History: 1982 AACS; 1998-2000 AACS; 2003 AACS.

R 408.9020 Rescinded.

History: 1982 AACS; 1998-2000 AACS.

R 408.9021 Rescinded.

History: 1982 AACS; 1998-2000 AACS.

R 408.9022 Rescinded.

History: 1982 AACS; 1998-2000 AACS.

R 408.9023 Rescinded.

History: 1982 AACS; 1998-2000 AACS.

R 408.9024 Rescinded.

History: 1982 AACS; 1998-2000 AACS.

R 408.9025 Rescinded.

History: 1982 AACS; 1998-2000 AACS.

R 408.9026 Settlement agreement.

Rule 26. (1) A complaint may be informally resolved by a written settlement agreement that specifies all of the following:

(a) The amount of payment agreed to.

(b) The terms of payment agreed to.

(d) A waiver of all rights to contest the amount due.

(2) The settlement agreement shall be signed by all of the following entities:

(a) The complainant.

(b) The employer or the employer's representative.

History: 1982 AACS; 1998-2000 AACS.

R 408.9027 Withdrawal of complaints; request to cease enforcement of order.

Rule 27. (1) A person who has filed a complaint with the department may withdraw the complaint at any time before issuance of a departmental determination.

(2) At any time after a departmental determination has been issued, a complainant may, in writing, request the department to cease enforcement of an order.

History: 1982 AACS; 1998-2000 AACS.

R 408.9028 Departmental determination.

Rule 28. (1) A departmental determination shall contain all of the following, if applicable:

(a) The name of the complaintant.

(b) The name of the employer.

(d) A citation to the sections of the act violated, if any.

(e) An order for the payment of wages or fringe benefits due, if any, plus a 10% per annum penalty.

(f) An assessment of the civil penalties, if any, and the basis for the assessment.

(g) An assessment of exemplary damages, if any, and the basis for the assessment.

(h) Notice to the employer and employee of the right to request an appeal of the determination, including instructions on how to request an appeal, where to mail the request, and the date the appeal is due.

(2) The department shall provide copies of the determination to the employer, the complaintant, and designated legal representatives.

History: 1982 AACS; 1998-2000 AACS.

R 408.9029 Rescinded.

History: 1982 AACS; 1998-2000 AACS.

R 408.9030 Appeal of department determination.

Rule 30. (1) The 14-day period within which an appeal of a departmental determination may be filed excludes the date of the determination. The calendar day that the appeal is due is included. If the last day of the 14-day period is Saturday, Sunday, or a state holiday, then that day is excluded and the period extends until the end of the next day that is not a Saturday, Sunday, or state holiday.

(2) An appellant shall submit a written appeal which is signed by the appellant and which contains all of the following information:

(a) The determination number.

(b) The name of the employer.

(3) An appellant shall submit an appeal to the department at the address specified on the determination.

(4) The department shall transmit an appeal received more than 14 days after the notification of determination is issued to the hearings office of the department to determine if good cause exists for a late appeal.

History: 1982 AACS; 1998-2000 AACS.

R 408.9031 Rescinded.

History: 1982 AACS; 1998-2000 AACS.

R 408.9032 Rescinded.

History: 1982 AACS; 1998-2000 AACS.

R 408.9033 Assessment of penalties; civil penalty.

Rule 33 (1) A civil penalty assessed under this rule shall not be more than $1,000.00.

(2) An employer who violates section 2 to 8 or section 10 of the act shall be assessed a civil penalty of 50% of the amount of wages and fringe benefits due an employee.

(3) A civil penalty assessed under subrule (2) of this rule shall be collected only if the director is required to initiate civil action to enforce an order of the department that has become a final agency order.

(4) A civil penalty of $1,000.00 shall be assessed for a violation of section 13 or section 13a of the act.

(5) A civil penalty of $1,000.00 may be assessed for a violation of section 9 of the act.

History: 1982 AACS; 1998-2000 AACS; 2006 AACS.

R 408.9034 Assessment of exemplary damages.

Rule 34. (1) The department shall order an employer who has violated section 2, 3, 4, 5, 6, 7, or 8 of the act to pay exemplary damages to the employee in either of the following situations:

(a) If the employer was previously found to have violated the same section of the act against the same employee at any time within 12 months before the occurrence of the violation.

(b) If the department determines that the act was deliberately and knowingly violated.

(2) Exemplary damages may be assessed at not more than twice the amount of wages and fringe benefits ordered due and shall be paid to the employee.

History: 1982 AACS.

R 408.9035 Payment of wages by payroll debit card; conditions.

Rule 35. Pursuant to section 6 of the act, an employer or agent of an employer may use a payroll debit card to pay wages to an employee, if all of the following conditions are satisfied:

(a) The employee can obtain payment of his or her wages in full, when they are due and payable.

(b) Prior to the issuance of a payroll debit card to an employee, the employer shall provide to the employee a written notice of all of the following:

(i) The terms and conditions of the payroll debit card.

(ii) Disclosure of fees that may be assessed by the card issuer.

(iii) Disclosure that additional fees may be assessed by third parties through use of a payroll debit card in addition to fees assessed by the card issuer.

(c) If a payroll debit card is used, then the cardholder, not the issuer or the bank, shall possess ownership of the funds. Neither the issuer nor the bank shall retain a reversionary interest in the funds. The reversal of a deposit of wages made to a payroll debit card account in error is not considered reversionary when it involves any of the following:

(i) A credit made to the wrong employee account.

(ii) A duplicate credit made to an employee account.

(iii) A credit that differs from the amount in the transmittal instructions.

(iv) A correction as described in section 7(4) of the act, being MCL 408.477(4).

(d) If an employer deposits wages into a pooled account accessible to an employee using a payroll debit card, the employer shall maintain records of each deposit sent to the card issuer for that account showing the amount of wages deposited for each employee and the date of the deposit. In addition, each cardholder's ownership interest in the funds deposited shall be indicated on records maintained by the card issuer, the depository institution's deposit account, or a third party.

History: 2006 AACS.