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.
Criticism continues to grow against a sweeping new federal mandate supported by the Biden Administration which requires private employers of 100 or more employees to develop and enforce a mandatory COVID-19 vaccination policy.
The mandate, outlined in a 490-page document, is referred to as an Emergency Temporary Standard (ETS). It establishes a Jan. 4, 2022 deadline for compliance, and requires employees of those companies to be vaccinated or be forced to wear a face covering at work while undergoing regular COVID-19 testing at the employee’s expense.
The Industrial Commission of Arizona (ICA) and the Arizona Attorney General’s Office are pushing back on the mandate which is estimated to cover more than 84 million employees, or about two-thirds of America’s private-sector workforce. OSHA estimates that about 23 million Americans will choose to undergo the vaccination to preserve their jobs.
On Thursday, the ICA issued a statement that Arizona businesses are not bound by OSHA’s mandate unless the commissioners vote to formally adopt a similar policy. Arizona is one of 22 states previously granted federal approval to operate a state plan to address issues typically under the purview of OSHA.
Then on Friday morning, Arizona was one of 11 state plaintiffs in a federal lawsuit filed in the U.S. Eighth Circuit Court of Appeals against President Joe Biden and OSHA to stop the COVID-19 ETS. The petition contends the vaccination mandate “is unconstitutional, unlawful, and unwise” and an attempt to infringe on the States’ powers expressly reserved by the Tenth Amendment.
In addition to Arizona, the attorneys general from Alaska, Arkansas, Iowa, Missouri, Montana, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming are plaintiffs.
Also on Friday, State Rep. Steve Kaiser criticized the White House’s support of the workplace vaccine mandate, calling it “an onerous and overreaching policy that will hurt businesses and the people who they employ.”
Kaiser, a Republican who represents LD15 covering north Phoenix and Cave Creek, owns Junk King, a Phoenix area franchise providing removal and hauling services.
“As a small business owner, it’s clear to me that Biden’s policy would force employees to choose between being vaccinated against their will, completing weekly COVID-19 testing (at their own expense), or losing their jobs. That’s wrong,” he said. “It’s more critical than ever that Arizona defend businesses and their employees and ensure their ability to continue making decisions for themselves – instead of liberal politicians in Washington.”
According to Kaiser, state officials are doing the right thing by trying to protect Arizonans who would be harmed by implementation of what he calls a “terrible” mandate. He supports ICA’s position that Arizona -and not OSHA- has had the exclusive responsibility for nearly 50 years for developing and enforcing any occupational safety and health standards within the state.
“Under Arizona’s long-approved state-plan procedures, the Industrial Commission has exclusive authority to decide if, when, and to what extent the State of Arizona will adopt the OSHA vaccination ETS,” the ICA statement reads. “Arizona has a 47-year track record of protecting the safety and health of Arizona’s workers and remains fully committed to this mission.”
The ETS requires employers to determine the vaccination status of each employee, obtain acceptable proof of vaccination, maintain records of each employee’s vaccination status, and maintain a roster of each employee’s vaccination status. It also requires employers to provide employees with a variety of information and literature about COVID-19 and to provide an employee “reasonable time and paid sick leave to recover from side effects experienced following each dose.”
In addition, employers are now mandated to report work-related COVID-19 fatalities to OSHA within 8 hours of learning about them, and work-related COVID-19 in-patient hospitalizations within 24 hours of the employer learning about the hospitalization.
For now, OSHA officials are less confident that smaller employers can implement a mandatory vaccination policy “without undue disruption.” But it appears those smaller businesses could be facing a similar mandate in the future.
“OSHA needs additional time to assess the capacity of smaller employers, and is seeking comment to help the agency make that determination,” it says.