Child Labor Law Violations on the RiseMay 17, 2023
Child labor laws have been in the news recently. Bills that modify existing statutes are making their way through several state legislatures, and at the federal level, multiple regulatory agencies are expressing concerns about rising violations. According to a report from the Economic Policy Institute, the number of minors employed in violation of child labor laws increased by 37 percent in 2022. Also, over the last two years, at least ten states have introduced or passed laws rolling back child labor protections. What’s going on?
What are child labor laws?
At the federal level, “child labor laws” are provisions of the Fair Labor Standards Act of 1938 (FLSA). The child labor provisions in the FLSA prohibit “oppressive child labor” in the United States. The FLSA defines oppressive child labor as the employment of youth, with some exceptions and subject to certain requirements, under:
- 18 years of age for hazardous occupations;
- 16 years of age for employment in non-hazardous occupations; and
- 14 years of age for a limited set of occupations, with hours and work conditions restrictions.
The FLSA establishes different rules for agricultural work. With some exceptions, the current minimum age for employment in agricultural occupations is:
- 16 years for employment in any agricultural job, including hazardous agricultural occupations, with no restrictions on hours of work;
- 14 years for employment in non-hazardous agricultural jobs outside of school hours; and
- any age, for employment in non-hazardous agricultural jobs, outside of school hours, with parental consent, when certain conditions are met concerning farm size, the nature and duration of work, and other requirements.
Children as young as 12 legally work on farms today because, in 1938, agricultural and domestic workers were placed in the same worker category. According to the Association of Farmworker Opportunity Programs, there are between 400,000 to 500,000 child farmworkers in the United States today.
Since the enactment of the FLSA, the court system has resolved numerous cases about the meaning of the law’s child labor provisions. For the most part, however, the fundamental child labor requirements outlined in the FLSA have remained sacrosanct for 85 years.
What’s happening in the states?
Employers sometimes look to fill some jobs with minors in a tight job market. Many industry groups are pushing state legislatures to modify basic FLSA child labor protections to ease labor shortages. The National Federation of Independent Business (NFIB), the U.S. Chamber of Commerce, and the National Restaurant Association are particularly active in this effort. Lodging and tourism associations, homebuilders, and Americans for Prosperity also actively support new child labor legislation in various states.
In Ohio, the Senate passed a bill allowing 14-year-olds to work until 9:00 p.m. during the school year. The Ohio Restaurant Association, the National Federation of Independent Business (NFIB), and the Pickerington Area Chamber of Commerce testified to support the bill. Legislation in Iowa, as introduced, proposed lifting restrictions on hazardous work and allowing children as young as 14 to work in meat coolers and industrial laundries; 15-year-olds to work on assembly lines, and 16-year-olds to serve alcohol. In Arkansas, Governor Sarah Huckabee Sanders signed a bill that repealed previous restrictions concerning children under 16. Under the new law, children under 16 no longer need parental consent and verification of age documentation to work.
Last year, two states — New Hampshire and New Jersey — passed legislation extending minors’ working hours and lowering the age for minors to serve alcohol. The New Hampshire Lodging and Restaurant Association and the New Hampshire Liquor Commission supported the New Hampshire bill. Several tourism groups (e.g., Six Flags) and commerce associations supported the New Jersey legislation.
Some of the proposed changes to state child labor laws directly contradict federal standards. Employers in these states must understand that the FLSA sets a floor on wages, hours, age, and other standards. State laws can provide more protection than federal laws, not less. Where state standards are weaker than the FLSA, federal law has precedence.
The “unaccompanied minor” problem
The U.S. Department of Labor (DOL) and the U.S. Department of Health and Human Services (HHS) have announced a new enforcement initiative to “combat exploitative child labor.” In the last fiscal year, DOL found that 835 companies it investigated had employed over 3,800 children in violation of federal child labor laws. According to the DOL/HHS memo, the increase in child labor exploitation has been partly created by “an influx of migrant children from Latin America fleeing violence and poverty, a majority of whom do not have a parent in the United States.”
The announcement of this joint departmental effort followed the DOL announcement in February that authorized OSHA compliance officers to certify U nonimmigrant status and T nonimmigrant status visas. These visas enable undocumented children and adults who have been victims of a crime to “help law enforcement detect, investigate, and prosecute crimes without fear of retaliation based on their immigration status.”
The federal government’s new focus on undocumented immigrants, human trafficking, and related issues regarding the intersection of immigration and employment issues reflects the first time in our nation’s history that the issue of undocumented immigrants in the workplace — whether children or adults — is being addressed more programmatically, and not as merely an enforcement/compliance matter. One of the core goals of the initiative is to “expand post-release services for unaccompanied children” and their sponsors by 2025. These services include “assistance in registering children for school, ensuring they understand the immigration legal process and can attend court hearings, and help to find medical, mental health, and family counseling services for which they may be eligible.”
The cost of non-compliance
However, enforcement remains a regulatory priority, and in this environment, all employers should be extra careful when employing minors. Failure to comply with basic FLSA child labor regulations can result in significant fines. Just this past December, in Florida, Rita’s Italian Ice was fined over $15,000 by the DOL’s Wage and Hour Division for allowing 14- and 15-year-olds to work outside of “legally permitted hours.” Also, on February 17, 2023, the DOL announced the resolution of one of the largest child labor cases in the department’s history, an enforcement action against Packers Sanitation Services: $1.5 million in civil penalties. The DOL is currently investigating over 600 child labor cases.
The DOL is calling on Congress to approve the department’s budget, allowing for more investigation capacity. The DOL is also asking Congress to increase the civil monetary penalties for child labor violations and strengthen protections from retaliation for individuals who report child labor law violations.
What employers need to do
Employers who routinely hire minors for specific positions not only should be familiar with the FLSA standards but should review the child labor law guidelines in each state where their operations exist. There are different rules for different age groups, and 14- and 15-year-olds usually have the most detailed restrictions. Also, there are often some exceptions to the rules for those minors who have graduated from high school, are excused from compulsory school attendance, or are enrolled in an approved “work experience, career exploration program, or work-study program.”
It’s good business to know the rules. Training your managers is the only way to ensure that minors are scheduled appropriately and doing what they’re allowed, by law, to do.
It’s always best to seek counsel if you have any questions or concerns about child labor laws and your workforce — and what exceptions may apply. Don’t hesitate to contact Orr & Reno for answers.
About the Authors: Steven L. Winer and Lynnette V. Macomber