It is Time for the U.S. to Overhaul its Agricultural Child Labor Laws

Introduction

You may be surprised to discover that your twelve-year-old child could get a job on a farm, working virtually unlimited hours and in hazardous conditions. However, due to loopholes in the Fair Labor Standards Act, children are exploited daily on farms across the United States. While the exact number is unknown, an estimated 30,000 to 79,325 children between the ages of ten and seventeen are exploited for their work on U.S. farms each year.^[1] These children are working in unsafe environments and often for wages far below minimum wage.[2] Despite the large number of children working on farms, the agricultural safety standards for child workers have not been updated in decades.^[3] Recently, lawmakers have shown particular concern for children working in tobacco fields.^[4] This blog will give an overview of the current state of child labor law in the U.S., explore its problematic loopholes, and discuss proposed changes and possible outcomes.

The Current Law in the U.S.

In the early twentieth century, Congress tried to address child labor issues by creating laws under its interstate commerce power pursuant to the U.S. Constitution.^[5] The Supreme Court ultimately struck down these attempts.^[6]  In 1938, Congress passed the Fair Labor Standards Act (“FLSA”), which placed restrictions and limitations on child labor and established hours and wage regulations.^[7] However, rules protecting children working in agriculture were still lacking. When Congress passed the FLSA law, roughly 30% of Americans lived on farms.^[8] Because many small family farms could not afford hired labor, allowing children to work on farms was crucial to many American families.^[9] This is not the case today, where fewer than 2% of Americans live on farms.^[10] No longer are we a country of family farms that depend on the work of those families’ children. It’s time for Congress to overhaul the Children in Agriculture provisions of FLSA to reflect this societal change and to protect children from exploitation.

Risks to Children Working in Agriculture

The standards for children working in agriculture have not been reformed in more than fifty years.^[11] In 1968, Congress authorized the Secretary of Labor to designate certain occupations and job functions as Hazardous Occupations (“H.O.s”) and, therefore, unfit for children; however, the list of Agricultural H.O.s has not been revised since 1970.[12] In 2002, the National Institute for Occupational Safety & Health (“NIOSH”) recommended updating the H.O.s for children working in agricultural and nonagricultural occupations.^[13] In 2010, the Secretary of Labor updated the H.O.s for nonagricultural employment of children, but the agricultural H.O.s for children have yet to be reformed.^[14]

Under the Obama administration, Secretary of Labor Hilda Solis attempted to update the agricultural’s new rules. These rules would have classified certain jobs as hazardous and prohibited them from being performed by children.[15] Newly hazardous jobs would have included things like handling stressed livestock, working from dangerous heights, laboring in grain facilities, and assigning children to drive tractors at and under the age of fourteen.[16]  Solis was unsuccessful due to strong opposition from farm lobbying groups like the American Farm Bureau Federation.^[17] Republican Senator and Representative Lamar Alexander (R-TN) and Tom Rooney (R-FL) also made hyperbolic claims that the new rules would prevent children working on family farms from using simple tools like power drills and flashlights.[18] Though the proposed rules had exemptions for family farms and claims like those made by Alexander and Rooney, the rhetoric continued to spread and the Department of Labor ultimately decided to withdraw the policy changes.[19]

A 2018 Government Accountability Office study showed that agriculture is the deadliest occupation for children.^[20] Child farmworkers comprise only 3% of working children, yet 52% of all work-related deaths among children from 2003 to 2016 occurred in the agricultural industry.[21] A survey of over 200 Latinx child farm workers in North Carolina found that few received adequate safety training for equipment and chemicals.^[22] Due to a lack of experience, child workers may underestimate risks and not wear protective clothing or gear.[23] Additionally,  children reported a lack of access to sanitation in the field.[24] Only about one-third of respondents reported access to water for washing, 19.8% reported soap being regularly available, and fewer than half of children reported having a private toilet available.^[25] Many children also report frequent sexual harassment and assault.[26]

Hazards of Working on Tobacco Farms

Perhaps the most egregious conditions faced by children working in agriculture are those found in tobacco production. In addition to the risks all children working in agriculture face (ex., injuries, heat stroke, pesticide exposure, etc.), children working in tobacco fields also face the risk of green tobacco sickness.^[27]

Green tobacco sickness occurs when nicotine is absorbed through the skin. This risk of exposure increases when plants are wet as nicotine dissolves in water on leaves.^[28] After rainfall, workers can be exposed to as much as 600 milliliters, or about two cups, of moisture that contains the same amount of nicotine found in thirty-six cigarettes.^[29] In interviews conducted by Human Rights Watch of tobacco workers ages seven to seventeen, nearly three-quarters of children reported suffering from nausea, vomiting, headaches, dizziness, difficulty breathing and skin.^[30] All of these symptoms are consistent with green tobacco sickness.[31] Children working on tobacco farms are especially vulnerable to sickness from tobacco exposure due to their smaller size relative to the dose of nicotine received and their lack of tolerance to nicotine.^[32] Doctors at a North Carolina clinic report that they frequently treat exploited children who work on farms; the doctors often find themselves overwhelmed on rainy days when workers are more likely to suffer from green tobacco sickness.[33] Newly proposed laws hope to provide protection specifically for children working in tobacco.

Proposed Changes to the Law and Their Possible Outcomes

Two laws have been introduced in the last year and a half to help address some of the child labor issues in agriculture. First, the House of Representatives introduced  H.R. 3865, the Children Don’t Belong on Tobacco Farms Act in June of 2021.^[34] H.R. 3865 proposes to amend the FLSA “to prohibit employment of children in tobacco-related agriculture by deeming such employment as oppressive child labor.”[35] If passed, this bill would ban anyone under eighteen from working in direct contact with tobacco plants or dried tobacco leaves unless the employer obtains a waiver from the Secretary of State.[36] This bill was referred to the House Committee on Education and Labor on June 14, 2021.[37]

Second, H.R. 7345, the Children’s Act for Responsible Employment and Farm Safety of 2022, was introduced in the House of Representatives and referred to the House Committee on Education and Labor in March of 2022.[38] It would amend the FLSA to offer much broader protections for children, such as prohibiting children under fourteen years old from working on farms unless the children’s parents employ them.[39] The bill also seeks to repeal the existing waiver provision, which allows employers to exploit children ages sixteen to eighteen in occupations deemed “hazardous” by obtaining a waiver from the Secretary of Labor.[40] Current hazardous occupations include things like mining, the manufacture of explosives, and excavation.[41] Under H.R. 7345, the current monetary fine system would increase to include civil penalties for child labor violations and criminal penalties for willful or repeated violations of child labor laws.[42] This increase in civil penalties and the addition of criminal liability for repeated violations should help to discourage willful blindness.

H.R. 7345 also seeks to add required data reporting for a child’s work-related injury, illness, or death.[43] Data collection would be beneficial to inform future policy reform as there is currently no central repository of these statistics.[44] If Congress passes the bill, it would require the Secretary of Labor to update the federal code to implement the above changes and prohibit workers under the age of eighteen from jobs that involve the handling of pesticides.^[45]

As of October 21, 2022, no further action has been taken on H.R. 3865 or H.R. 7345. However, on September 7, 2022, Margaret Wurth from Human Rights Watch testified to the House Committee on Education and Labor Subcommittee on Workforce Protections about the importance of these proposed bills and the dangers facing children working in agriculture.[46]

Instead of waiting for these proposed bills to pass the House and Senate and receive the President’s approval, the Department of Labor (“DOL”) has the authority to act to protect child farmworkers without legislative action.^[47] The DOL determines which jobs are hazardous and, therefore, off-limits to children.[48] The DOL has not updated the list of hazardous occupations since 1970.^[49] The DOL could designate occupations that work with pesticides or relate to tobacco as hazardous based on the detrimental health effects.^[50]

Even if the two bills above are enacted and the DOL updates its list of hazardous occupations, they must be enforced to be effective. Many farm owners are unaware of the exploitation of children on their farms.^[51] Most large farming operations rely on contractors to fill the fields, allowing farmers to remain ignorant about the workers being brought in. [52]Fortunately, after child labor advocates began educating farmers, they were appalled to learn that children were working in their fields.^[53] Perhaps this is a sign that the current proposed bills may receive less political backlash than the attempts during the Obama administration.

Conclusion

A job can help a child build responsibility, gain work experience, earn money, learn time management skills, and develop interpersonal skills. While the many benefits of employment are undeniable, grave risks are also evident given the extremely outdated state of the law regarding children working on farms. The American agricultural landscape has changed. The need for child labor on farms has changed. The information regarding the development of children and the risks of some occupations children perform have changed. It is time for the law to protect child farm workers from exploitation. We must move lawmakers to reform the woefully outdated laws and end the exploitation of children working in agriculture.

[1]Thomas A. Arcury et al., Work Safety Culture of Latinx Child Farmworkers in North Carolina, 63 Am. J. Ind. Med. 917 (2020).

[2] Background: Child Labor in Agriculture, Human Rights Watch (2002), https://perma.cc/NZ5B-G8MT (last visited Oct. 20, 2022).

[3] Letter from Representatives Lucille Roybal-Allard of Cal. and David Cicilline of R.I. and 44 other members of Cong. to The Hon. Martin J. Walsh, U.S. Sec’y of Lab., U.S. Dep’t of Lab. (July 19, 2022), https://perma.cc/UU2A-PXW3 [hereinafter Letter from Reps. Roybal-Allard and Cicilline].

[4] Margaret Wurth, 46 Congressmembers Urge U.S. to Protect Child Farmworkers, Human Rights Watch (2022), https://perma.cc/6CCK-NSBP (last visited Sept. 10, 2022).

[5] See generally Child Labor Tax Law of 1919, Pub. L. No. 65-254, §§1200-07, 40 Stat. 1057, 1138-40 (1919); Keating-Owen Act, Pub. L. No. 64-249, 39 Stat. 675 (1916).

[6] See generally Lochner v. New York, 198 U.S. 45(1905) (invalidating a N.Y. State law regulating the maximum hours a baker could work per week and prohibiting states from interfering with a person’s freedom to contract); Hammer v. Dagenhart, 247 U.S. 251 (1918) (invalidating the Keating-Owen Act, a federal law prohibiting the interstate shipment of goods produced by child labor because “production” lay outside of Congress’s commerce power); Bailey v. Drexel Furniture Co., 259 U.S. 20 (1922) (invalidating the Child Labor Tax Law of 1919, which taxed businesses for employing children under the age of fourteen because. Congress may not pass regulations disguised as taxes and the law intruded on states’ right to enact child labor laws).

[7] Leigh E. Colihan, Child’s Play: The case against the Department of Labor for its failure to protect children working on America’s tobacco farms., 64 Am. Univ. Law Rev. 645 (2015).

[8] PBS, Farming in the U.S. – American Experience, American Experience, https://perma.cc/LK3T-Q62J (last visited Sept. 17, 2022).

[9] Child Labor Enforcement: Are We Adequately Protecting Our Children? Hearing before the Aubcommittee on Workforce Protections Committee on Education and Labor, U.S. House of Representatives, 110^th Cong. (2008) (statement of Hon. Lynn Woolsey, chairwoman of the Subcommittee on Workforce Protections Committee on Education and Labor).

[10] Colihan, supra note 7.

[11]  Letter from Reps. Roybal-Allard and Cicilline, supra note 3.

[12] Notice of Proposed Rulemaking and Request for Comments, 76 Fed. Reg. 54836 (Sep. 2, 2011).

[13] U.S. Dept. of Health and Hum. Serv., Nat’l Inst. for Occupational Safety and Health (NIOSH) Recommendations to the U.S. Department of Labor for Changes to Hazardous Orders (2002).

[14] Letter from Reps. Roybal-Allard and Cicilline, supra note 3.

[15] DOL Withdraws Much-Needed Child Safety Protections for Children Working for Wages on Farms (2012), The Child Lab. Coal. https://perma.cc/XUY6-VEQN (last visited Oct. 20, 2022).

[16] Id.

[17] Ariel Ramchandani, The Overlooked Children Working America’s Tobacco Fields, The Atlantic (2018), https://perma.cc/BSX4-XJVE (last visited Sep 10, 2022).

[18] Bartholomew Sullivan, Lamar Alexander says child farm labor rules could prohibit certain tasks, hurt family farms, Politifact, The Poynter Institute. (2012) https://perma.cc/BQ3B-B5SX (last visited Oct. 19, 2022).

[19] Id.

[20] U.S. Gov’t Accountability Off., GAO-19-26, Report to Congressional Requesters: Working Children, Federal Injury Data and Compliance Strategies Could be Strengthened 26-30 (2018).

[21] Id.

[22] Arcury et al., supra note 1.

[23] Ramchandani, supra note 17.

[24] Arcury et al., supra note 1.

[25] Id.

[26] Background, supra note 2.

[27] Colihan, supra note 7.

[28] Zama Coursen-Neff, Fields of peril: child labor in U.S. agriculture (2010).

[29] Id.

[30] Margaret Wurth, Tobacco’s Hidden Children: Hazardous Child Labor in United States Tobacco Farming, Human Rights Watch (2014), https://perma.cc/E78X-3RKB (last visited Sep 16, 2022).

[31] Fotedar, Shailee & Vikas Fotedar, Green Tobacco Sickness: A Brief Review, Indian j. of occupational and env’t med. Sep.-Dec. 2017 at 101.

[32] Wurth, supra note 30.

[33] Ramchandani, supra note 17.

[34] Children Don’t Belong on Tobacco Farms, H.R. 3865, 117th Cong. (2022).

[35] Id.

[36] Id.

[37] Id.

[38] The Children’s Act for Responsible Employment and Farm Safety of 2022, H.R. 7345, 117th Cong. (2022).

[39] Id.

[40] Id.

[41] Hazardous Jobs, U.S. Dept. of Lab., https://www.dol.gov/general/topic/youthlabor/hazardousjobs (last visited Oct. 20, 2022).

[42] H.R. 7345, supra note 38.

[43] Id.

[44] 2022 Fact Sheet, Childhood Agricultural Injuries, National Children’s Center for Rural and Agricultural Health and Safety, https://perma.cc/JA9J-644E (last visited Oct. 21, 2022).

[45] H.R. 7345, supra note 38

[46] https://www.hrw.org/news/2022/09/14/us-testimony-house-committee-education-and-labor-subcommittee-workforce-protections

[47] Margaret Wurth, On World Day Against Child Labor, U.S. Should Protect Young Farmworkers, Human Rights Watch (2022), https://www.hrw.org/news/2022/06/13/world-day-against-child-labor-us-should-protect-young-farmworkers (last visited Sep 10, 2022).

[48] Oppressive Child Labor, 29 C.F.R. §570.117 (2004).

[49] Id.

[50] Id.

[51] Ramchandani, supra note 17.

[52] Id.

[53] Id.