food
Restaurants Can Allow Young Employees In Kitchen Without Fearing Civil Penalty

June 17, 2022

By Terri Jo Neff |

Restaurants across Arizona won a majority legal victory Thursday that protects those who give jobs to minors under age 16 even if the job requires the minor to walk into or pass through the restaurant’s kitchen on occasion.

The issue arose after the popular Sofrita Restaurant in Fountain Hills was accused by the Industrial Commission of Arizona in 2018 of several violations related to its hiring of three hostesses who were under the age of 16. The Spanish-Latin restaurant was also hit with a $1,000 civil penalty.

Sofrita cooperated with the investigation, which confirmed the hostesses are tasked at times to take dirty dishes into the kitchen and sometimes used the restaurant’s rear entrance when reporting to work. This required the hostesses to walk through the kitchen to get to the hostess stand.

The ICA investigator cited Sofrita for three alleged violations of Arizona Revised Statute 23-232 for having employees under age 16 engage in activities “in, about, or in connection with” the kitchen. A fourth violation stemmed from the restaurant’s alleged failure to keep proper records to ensure the young employees did not violate ARS 23-233 in regard to how many hours a minor can work.

Sofrita challenged the violations and requested a hearing before an Administrative Law Judge. At the hearing, the state investigator testified that the child labor statute means employees under the age of 16 “cannot be in the kitchen” for any reason, not even simply to clock in for their shift.

Judge Jonathan Hauer rejected the Industrial Commission’s position, finding that Arizona’s child labor laws do not regulate “casual encounters” between minor employees and a restaurant’s kitchen space.  The findings also concluded there was an “inadequate factual basis” for the ICA to impose the $1,000 penalty.

The State of Arizona appealed Hauer’s findings last year.

On June 16, the Arizona Court of Appeals affirmed Hauer’s rejection of ICA’s interpretation of Arizona Revised Statute 23-232 which prohibits restaurant employees under the age of 16 from working “in, about, or in connection with…cooking and baking.” The appellate opinion also affirmed Hauer’s finding which vacated the $1,000 civil penalty against the restaurant. 

In a unanimous appellate decision, Presiding Judge David D. Weinzweig wrote that the statute the ICA relied on never mentions the word kitchen, and nothing supports the ICA’s reading that employers like Sofrita must prevent minors under age 16 from entering the kitchen.  

The opinion also pushes back on the ICA investigator’s focus on the words “in, about or in connection with” the kitchen without tethering them to the statute’s specific prohibited activities of cooking and baking.

“It does not forbid employees under 16 years old from walking in the kitchen,” Weinzweig wrote, adding that federal regulations also undermine the ICA’s broad interpretation of a kitchen prohibition.

Weinzweig pointed to the Fair Labor Standards Act which permits minors under 16 to do kitchen work such as some food preparation, cleaning of some kitchen equipment, and even entering freezers to retrieve items.

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