No; subject to certain limitations.
This opinion has been requested, on behalf of the Governor and the Governor's Office of Citizen Affairs, to clarify the situations in which an employment certificate is required of a minor who desires to participate in eleemosynary activities of a voluntary nature. The scope of this opinion is limited to those volunteers who:
- Receive no monetary compensation for their work;
- Replace no employees;
- Are no apprentices or trainees;
- Work a limited number of hours; and
- Are free to leave their voluntary work at any time without recourse.
G.S. 110-9 states, in part:
"Before any minor shall be employed, permitted or allowed to work in, about or in connection with any gainful occupation, such minor shall procure and keep in his possession all times while pursuing such employment an employment certificate. . . ."
The key words for interpretation herein are "gainful occupation." This term has been most often construed in cases interpreting the requirements of insurance contracts. In Gossett v. Insurance Company, 208 N.C. 152, 157 (1935) our Supreme Court, quoting from Bulluck v. Insurance Company, 200 N.C. 642, said:
"The reasoning of the opinions seems to indicate that engaging in a gainful occupation is the ability of the insured to work with reasonable continuity in his usual occupation, or in such an occupation as he is qualified physically and mentally, under all the circumstances, to perform substantially the reasonable and essential duties incident thereto. Hence, the ability to do odd jobs of comparatively trifling nature does not preclude recovery." (emphasis supplied)
Other states have also interpreted this language. In Gorczynski v. Nugent, 83 N.E. 2d 495, 402 Ill. 147, where a child under 14 was employed to walk race horses, reported every day regularly for work for over a period of several weeks, and was paid for such work every two weeks, he was held engaged in a "gainful occupation" in violation of the child labor act.
"Gainful" has been defined as profitable, advantageous, or lucrative. Smith v. Mutual Life Insurance Company of New York, La. App., 165 So. 498, 500.
The word "occupation" is defined by Webster's New World Dictionary (Second College Edition 1976) as follows:
"1. an occupying or being occupied; specif., the seizure and control of a country or area by military forces
"2. that which chiefly engages one's time; (one's) trade, profession, or business."
Clearly, a minor volunteering his or her time and engaged in work within the parameters of paragraphs one through five above is not engaged in a trade or profession which is "gainful". Since educational pursuits are the primary trade of most minors, voluntary, charitable work cannot be said to be their "occupation."
Accordingly, subject to the limitations above, the provisions of G.S. 110-9 do not require procurement of an employment certificate for a minor whose work is purely voluntary since the minor is not engaged in a "gainful occupation."
It is noted that Article 1 of Chapter 110 of the General Statutes prohibits minors from being employed, permitted or allowed to work certain hours (G.S. 110-2), and from being employed, permitted or allowed to work in certain occupations (G.S. 110-6, 7 and 8). Thus, minors could not volunteer in the areas prohibited.
Rufus L. Edmisten Attorney General
George W. Lennon Associate Attorney General