Wage and Hour Division (WHD)
Notice of Proposed Rulemaking to Amend the Child Labor in Agriculture Regulations - Frequently Asked Questions
- Why is the Department of Labor proposing to revise the agricultural child labor provisions?
- What is the Department of Labor doing to protect youth working in agriculture?
- How does the proposed rule affect what children can do on their parent’s farm?
- Are these proposed revisions in response to any event or accident, or string of events or accidents, or child labor violations?
- Are injuries to children a problem in agriculture?
- Will the proposed rule also cover undocumented minors working in the fields?
- How/where can people send comments?
Current Child Labor Rules
- What are the child labor laws that apply to children who work in agriculture?
- Can a hired farm worker who is at least 16 years old do any farm job, including work that the Labor Secretary defines as hazardous?
- Is it true that children as young as 12 years old can work for hire on a farm with written parental consent?
- I understand that for most non-farm jobs, children have to be at least 16, although the Labor Secretary can allow 14 and 15 years old to work in industries such as retailing and food service. It that correct?
- Can you provide an example of a non-farm occupation that is considered too hazardous by DOL for an 18 year old (such as driving a forklift or handling dynamite) that is allowed to be done by a 16 year old working as a farm hand?
- Does the Fair Labor Standards Act, a 73 year old federal law (1938 FLSA), permit hired farm hands as young as 16 to handle dynamite and chainsaws, and to work in a grain silo, where there is a risk of suffocation?
- Can we count on the Administration’s support for tougher restrictions on the use of pesticides by children in the fields?
- Representative Roybal-Allard introduced a bill last year that would tighten the child labor laws in agriculture, making them more like the rules that apply for nonagricultural employment. What is your position on that proposal?
Children employed in agriculture are some of the most vulnerable workers in America. The fatality rate for young agricultural workers is four times greater than that of their peers employed in nonagricultural work places. Furthermore, the injuries suffered by young farm workers tend to be more severe than those suffered by nonagricultural workers. The current federal agricultural child labor rules were issued over forty years ago and have never been updated or even revised. The time has come to bring the rules that protect our children—our most valuable and precious resource—into the 21st Century. The Department believes this proposed rule, which is based on our enforcement experience and recommendations from the National Institute for Occupational Safety and Health, would do that.
Though the number of young hired farm workers across the country is relatively small, they are employed in one of the most dangerous industries. Their duties can range from picking blueberries to pesticide handling; from detasseling corn to working in grain elevators and silos; from topping onions to operating large and complex power-driven machines, including tractors. The Secretary of Labor has a statutory obligation to ensure that these youth perform only those jobs that are not hazardous and do not jeopardize their health and well-being.
Children employed in agriculture are some of our most vulnerable workers and ensuring that they are protected has been a priority of the Department for a long time. We cannot stand by while many children in rural America continue to be exposed to unsafe and unhealthy workplaces.
An important step in protecting young farm workers is ensuring that the child labor laws promulgated to protect them actually do protect them. That is why the Department continuously reviews all its child labor provisions. We want to make sure children who work are safe and able to enjoy those important positive early work experiences that do not put them at risk.
The Department is also committed to enforcing those child labor provisions.
The Wage and Hour Division (WHD) uses a variety of strategies to promote compliance in the agriculture industry with the Nation’s child labor laws and keep workers safe.
Under the Obama Administration, WHD has hired more than 300 new investigators and systematically expanded its enforcement and compliance assistance programs in agriculture to continually increase visibility in the agriculture industry in an effort to increase awareness of and compliance with the laws applicable to the industry.
For example, each year WHD regional and local offices plan and undertake enforcement initiatives in high-risk industries, such as agriculture. These initiatives are designed to remedy violations and secure long lasting industry-wide compliance with our nation’s child labor laws. Every investigation conducted by WHD includes a child labor component. In addition, a more robust enforcement presence to ensure agricultural workers are paid the wages they are legally entitled to, will decrease parents’ need to bring their children to the field to supplement the family income.
When violations are found, the Agency is using all enforcement tools necessary—liquidated damages, civil money penalties, hot goods, injunctions, and search warrants—to ensure accountability and deter future violations by all responsible parties.
The proposed rule in no way compromises the statutory child labor parental exemptions involving children working on farms owned or operated by their parents. The statutory exemptions do not apply to workers who are not the children of the owner or operator of the farm. A parent of a hired farm worker cannot waive the child labor provisions for his or her own child when the child is employed on a farm not owned or operated by his or her parent.
The Department of Labor has continuously reviewed the federal child labor regulations to better protect working children while still allowing them to enjoy the positive work experiences that they can safely perform. Secretary Solis directed the Wage and Hour Division (WHD) to take steps to update the child labor regulations in agriculture after the WHD had concluded a similar rulemaking in May, 2010 for children working in nonagricultural workplaces. The Department’s comprehensive proposal is based upon the enforcement experience of the WHD, recommendations made by the National Institute for Occupational Safety and Health, the desire to bring transparency to the agency's procedures for assessing child labor civil money penalties, and a desire to equalize as much as possible the agricultural and nonagricultural child labor protections. The child labor provisions for agriculture have not been updated in more than 40 years.
Definitely; farming is one of the most dangerous employment sectors in America for adults – let alone children. The National Safety Council ranks agriculture as our nation’s most dangerous industry with 28.6 deaths per 100,000 adult workers (Injury Facts 2009 Edition, available at www.nsc.org. For youth 15 to 24, the rate is 21.3 deaths per 100,000 full time workers.
The Department’s Bureau of Labor Statistics (BLS) notes that the fatality rate for agricultural workers who are 15 to 17 years of age is 4.4 times greater than the risk for the average worker in that age range.
The most common cause of agricultural deaths among young workers is farm machinery, with tractors involved in over half of the fatalities.
- For example, last year the WHD investigated the death of an 8-year-old who was killed when he was pulled into a potato conveyor.
Young farm workers also experience a high incidence of injuries and those injuries tend to be more severe than those suffered by nonagricultural workers.
- For example, in 2009 the WHD investigated the serious injury of an 11-year-old whose leg was severed 6” below the knee while he was sweeping grain to a central location inside a silo.
WHD administers and enforces the law for all workers employed in the United States - regardless of their immigration status.
Detailed instructions for submitting comments are contained at the beginning of the NPRM, but generally, beginning September 2, comments may be submitted electronically at http://www.regulations.gov or by mail to Wage and Hour Division, U.S. Department of Labor, Room S-3502, 200 Constitution Avenue, NW, Washington, DC 20210. Please include the following identification on all comments: RIN 1235-AA06. Comments must be received by November 1.
The Federal child labor rules for both agriculture and nonagriculture are promulgated under the authority of the Fair Labor Standards Act (FLSA). The rules are not as comprehensive for children who work in agriculture as they are for children who work in other industries such as restaurants and grocery stores. This reflects a historical deference to farm work. For example, the FLSA prohibits hazardous work for children in nonagricultural employment up to the age of 18, but only prohibits hazardous work for children in agriculture up to the age of 16. Likewise, a child employed by his parents on a farm owned or operated by the parents can do any kind of work, even the most hazardous types of work, at any age; this exemption is much broader than the parental exemption in nonagricultural employment where the restrictions regarding the employment of youth in hazardous occupations remain until the age of 18.
For others who work as hired farm workers, under current law the following rules apply:
- Youths aged 16 and older may work in any farm job at any time.
- Fourteen- and 15-year-olds may work outside of school hours in nonhazardous agricultural jobs.
- Twelve- and 13-year-olds may work outside of school hours in non-hazardous jobs on farms where their parents are employed or with written parental consent.
- Children under 12 years of age may work on small farms (those not subject to the FLSA minimum wage) if they are employed outside of school hours, in non-hazardous jobs, and have parental consent.
The current agricultural hazardous occupations orders prohibit hired farm workers under the age of 16 from doing work that the Labor Secretary defines as hazardous. Once a hired farm worker reaches his or her 16th birthday, he or she is no longer subject to the federal agricultural child labor provisions.
The FLSA does permit youth 12 and 13 years of age to be employed as hired farm workers on farms that also employ their parents or with written permission from the parents. These youth may only be employed outside of school hours and may not perform any work that the Secretary of Labor has declared to be hazardous. The FLSA also permits children under the age of 12 to be employed on small farms that are not subject to the Act’s minimum wage provisions when the parent has given written permission for the child to work on that small farm. Again, these youth may only be employed outside of school hours and may not perform any work that the Secretary of Labor has declared to be hazardous.
Question: I understand that for most non-farm jobs, children have to be at least 16, although the Labor Secretary can allow 14 and 15 years old to work in industries such as retailing and food service. Is that correct?
That is correct; but the hours and types of jobs for youth employed in nonagricultural work are quite limited as detailed in Subpart C of 29 CFR part 570.
Question: Can you provide an example of a non-farm occupation that is considered too hazardous by DOL for an 18 year old (such as driving a forklift or handling dynamite) that is allowed to be done by a 16 year old working as a farm hand?
Under the current laws, hired farm workers who are 16 years old are no longer subject to the federal child labor provisions and may perform even the most hazardous of tasks on a farm. They may drive automobiles and tractors on public roads—in nonagricultural employment a youth would have to be at least 17 to drive an automobile on a public road and 18 for a tractor. Hired farm workers below the age of 16 may perform many other tasks that are prohibited to their peers working in nonagricultural workplaces as long as the work is performed outside of school hours. For instance, such young workers can perform construction work on a farm, they can work on or about roofs, they can perform wrecking and demolition work and they can operate most power-driven tools. The proposal would prohibit hired farm workers under the age of 16 from operating almost all power-driven equipment. A similar prohibition has existed as part of the nonagricultural child labor provisions for more than 50 years.
Question: Does the Fair Labor Standards Act, a 73 year old federal law (1938 FLSA), permit hired farm hands as young as 16 to handle dynamite and chainsaws, and to work in a grain silo, where there is a risk of suffocation?
Under the FLSA, the hazardous occupation orders applicable to agricultural employment only impact the employment of workers under the age of 16. The agricultural hazardous orders do prohibit youth under the age of 16 from working in grain silos, but these establishments normally do not qualify as agricultural establishments under the FLSA because they process or store products from several farmers. The proposal would add a new nonagricultural hazardous order that would prevent children under 18 years of age from being employed in country grain elevators and grain bins when such establishments are determined to fall under the nonagricultural child labor provisions.
The Department’s Wage and Hour Division has implemented a multi-pronged strategy of enforcement, rulemaking education, partnership, and building public awareness. In addition, WHD has implemented several child labor-specific investigation techniques, such as:
- Surprise visits on weekends and during early morning hours;
- Using photographs and video to document abuses;
- The threat of using the "hot goods" provision to stop shipment on crops produced with unlawful child labor as we have done in the onion fields of Texas and the blueberry fields of New Jersey;
- The assessment of civil money penalties;
- The sharing of information and staff among different WHD offices so that investigators can follow the harvest and the workers to the next workplace; and
- The effective use of the media and community groups to assist in our efforts to obtain, maintain, and sustain compliance with all the labor standards we are entrusted to enforce.
We think that these techniques are having an impact, and will help us maintain heightened public awareness about child labor in agriculture and promote compliance with the child labor law.
Our proposal would prohibit any hired farm worker from performing any task, such as applying pesticides, that falls within the occupation of pesticide handler as defined by the U.S. Environmental Protection Agency. This proposal would greatly strengthen the protections of the current child labor provision.
Question: Representative Roybal-Allard introduced a bill last year that would amend the FLSA to tighten the child labor laws in agriculture, making them more like the rules that apply for nonagricultural employment. What is your position on that proposal?
The Administration has not taken a position on this proposal, but we are fully committed to working with the Congresswoman and her colleagues in both Houses of Congress to advance the health and safety of young workers.