Too many camp directors seem to be unaware of their obligations as employers and particularly the restrictions that employment laws place on employer inquiries. Even minors, when they are on payroll and providing services for the camp, must be accorded the full panoply of employment protections. This means that camp directors must familiarize themselves with what information they are permitted or required to gather from and provide to applicants and employees at each stage of the hiring, onboarding and employment process.
Impermissible Inquiries Pre-Hire
When assessing job applicants, employers should be focused on gathering information about how the applicants will perform in the job. Questions about skills and experience, and inquiries designed to gauge such characteristics as empathy, responsiveness, and commitment are all appropriate. Questions that pertain to protected characteristics are not appropriate.
This means that the following are not permissible at the application stage:
- Asking an applicant’s age (beyond confirming if the individual has working papers if under age 18);
- Asking about physical or mental health limitations (beyond confirming that the individual will be able to perform the essential functions of the job, with or without an accommodation);
- Asking about religious practices; and
- Asking about citizenship (beyond confirming the individual is legally authorized to work in the United States).
That which cannot be asked directly also cannot be asked indirectly. This means that an applicant cannot be requested to provide (or upload to a portal) documentation like passports, a driver’s license, proof of vaccinations (except where legally required) or other medical information.
Identifying information like the license or passport may be requested after an offer of employment, as options for proof of legal authorization to work. The medical history form that is used for campers is never an appropriate document to be requested of camp counselors.
Camp counselors, even if they are minors, are still protected as employees under the wage and hour laws. Many states, including New York, require that employees be paid at regular intervals for their time worked. Employees’ paychecks cannot be held hostage to ensure the employees’ compliance with workplace policies or procedures.
This means, for example, that employers cannot refuse to issue a paycheck to an employee who failed to timely provide documentation in support of an I-9 form or complete requisite tax withholding forms.
The remedy for the incomplete I-9 form is to put the person on unpaid leave or terminate employment. Individuals should not be permitted to work if they have not provided compliant information within three days of hire. Even so, they need to be paid for the first three days to the extent they performed work.
If the tax forms are not timely completed, the IRS and state tax authorities provide guidance for employers on certain default presumptions to be made in calculating tax withholdings. Withholding payment in its entirety is not a permissible option.
Providing a Safe Workplace
Employers are required to provide a safe work environment. All sorts of injuries and mishaps can occur in a camp environment. Counselors should be instructed promptly to report injuries that occur – regardless of the age or status of the individual injured. Camp counselors who experience on the job injuries may need medical treatment. If sufficiently appropriate treatment cannot be provided by the camp’s medical staff, workplace injuries that require more extensive medical attention are usually covered by workers’ compensation insurance. The injuries should be documented as such in the employer’s safety records and counselors should be provided with the appropriate forms and information to submit a claim for workers’ compensation coverage when they seek medical treatment. Counselors should not be expected to cover the cost of treatment through their own or their parents’ health insurance policy.
When in Doubt, Ask
Camps employ large populations of short-term workers, and often are a teenager’s first employer. The vulnerability and inexperience of these workers make them easy targets for workplace law violations. But camp counselors talk, they compare notes on their experiences, and many have parents who are more familiar with employee rights. Camps that shirk their responsibilities as employers risk low morale, poor retention and future hiring challenges, and legal liability. Far better is for camp directors to seek advice, in advance, regarding their obligations to their counselors and how they can operate within the parameters of the law.
By Tracey I. Levy