Georgetown Journal on Fighting Poverty 
Georgetown University Law Center
Symposium

February 28, 1998

      Good morning. My name is Darlene Adkins. I am vice-president of public policy for the National Consumers League. The League has a 99 year history in fighting child labor, sweatshops, and other labor abuses. Eight years ago, the League helped organize the national Child Labor Coalition, which has more than 50 organizations as members. The coalition works to strengthen child labor laws in the United States and to end child labor exploitation at home and abroad.

      Before delving into how child labor laws would be affected by U.S. ratification of the Convention on the Rights of the Child, we first need to describe child labor in the United States and the laws which have been enacted to control child labor.

Child Labor in the United States
      Child labor laws evolved out of the belief that children should be in school instead of in factories or mines. And, things improved as a result of compulsory education laws and restrictive child labor laws. But child labor or child employment or whatever you wish to call it was not totally stamped out with the legislation of the 1930s.

Child labor continues to exist in the United States. We've replaced children working in mines and factories with adolescents working in eating establishments and retail stores. Employment among minors is booming in the United States. Five and one half million youth between the ages of twelve and seventeen are working. Some of it is illegal work, like working under age, for excessive hours, or in prohibited occupations and industries. Some of the work is hazardous and there is data on occupational injuries among minors to prove the point. And, much of youth employment negatively impacts the education of minors. Not so much that work is conducted during school hours, as it is that work is so excessive that education suffers.

      Youth employment is part of the fabric of American family life today. More so now than at any other time since child labor laws were passed. Teens are twice as likely to work in 1990 as they were in 1950. The change has been fueled by the growth of the service sector after World War II, the rise of the fast-food industry in the 1960s and 1970s, and an increase in the number of females entering the workforce.

      Many students are employed during the school year: one third of all sophomores; two thirds of all juniors; and three fourths of all seniors. A 1991 government report on child labor concluded that fifty-four percent of working minors are in families with an annual income above sixty thousand dollars. Fourteen percent of working minors are in families with an annual income of between twenty thousand and sixty thousand. And, the rest (thirty-two percent) are in families with an annual income below twenty thousand dollars.

      Research shows that teens from minority and low-income households work fewer hours than their counterparts. Although these adolescents are employed less, they tend to work in more hazardous occupations -- like agriculture -- or in prohibited occupations. Therefore, this population is often exploited, with higher risk of occupational injury.

Migrant and Seasonal Child Farmworkers
      One child labor issue is consistently overlooked. Children who work as migrant and seasonal farmworkers in the United States number as many as 800,000. In 1991, the National Association of Community Health Centers reported that 38 percent of farmworkers consist of women and children under the age of 14.

      Part of the problem is that our child labor laws do not adequately protect these children. Consider these facts. Children as young as 10 years old may work in fields legally while the minimum age for work in other occupations is 14. A child farmworker under the age of 16 may work over 40 hours a week (even during the school term) while no other child can. A migrant farmworker child can work unlimited hours in agriculture before school. No other child can.

      What is the impact on the lives of farmworker children? The rate of school enrollment for farmworker children is lower than for any other group in the U.S. The school dropout rate for migrant children is 45 percent. The highest of any group in the United States. Children are exposed to hazardous pesticides while their bodies are developing and maturing which has lifelong repercussions on their health.

Federal Child Labor Law -- The FLSA
      In the midst of what many call a child labor problem in the United States, there are child labor laws -- both federal laws and state laws.

      The Fair Labor Standards Act prohibits "oppressive child labor." Oppressive child labor is defined as the employment of a minor in an occupation for which he or she does not meet the minimum age standard. This includes minimum age standards for hazardous work.

      The minimum age for employment with a few exceptions is age fourteen. Children between the ages of 14 and 16 may work in occupations (other than mining or manufacturing) if it is determined that the nature of the work, the time periods of the work, and the conditions under which the work is performed will not interfere with their schooling. Employment of children under age 16 by a parent (or a person in place of the child's parent) in their own enterprise, is excluded from the definition of oppressive child labor, provided the work is not in mining or manufacturing, or in an occupation declared hazardous by the Secretary of Labor.

      The FLSA also excludes certain agricultural work performed outside school hours. This work is generally permissible for children 14 and older, although no child under 16 may work in agricultural occupations which the Secretary declares to be hazardous, unless employed by a parent (or a person standing in place of their parent). Children 12 or 13 years old may be employed with the consent of their parent or at a place where a parent is also employed. Children younger than 12 may work on farms that are owned or operated by their parents or on certain farms that are exempted from the minimum wage provisions of the FLSA. Finally, there are limited circumstances in which children between the ages of 10 and 12 may work in certain agricultural occupations.

      The FLSA restricts minors from occupations which the Secretary of Labor has identified as hazardous. These are identified in seventeen Hazardous Occupation Orders. There are additional restrictions for minors under the age of 16. Moreover, minors under age 16 engaged in agricultural employment are restricted from some occupations and handing select machinery.

      The structure of most state laws is similar to the FLSA and its regulations. Most state laws set a minimum age for employment, and prohibit employment in certain hazardous occupations. In details, however, the laws exhibit great variation.

      Child labor in the United States is regulated by both state and federal laws. The federal law prohibiting "oppressive child labor" applies to goods in commerce or the production of goods for commerce. State law applies when a company's gross annual profits do not exceed $500,000 and if the company is not involved in interstate commerce. If a business falls under both state and federal child labor laws, then the most stringent law applies.

U.N. Convention on the Rights of the Child
      Now that we've explored the child labor problem in the United States and reviewed the laws which apply, let us look briefly at the language of the Convention itself. The Convention on the Rights of the Child defines "child" as every human being under the age of 18.

      Article 32 of the Convention says that "States Parties recognize the right of the child to be protected from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child's education, or to be harmful to the child's health or physical, mental, spiritual, moral or social development."

...States Parties shall in particular
(a) Provide for a minimum age or minimum ages for admission to employment.
(b) Provide for appropriate regulation of the hours and conditions of employment.
©Provide for appropriate penalties or other sanctions to ensure the effective enforcement of the present article.

      Let's take each of these three points under Article 32 and explore how existing U.S. child labor laws measure up to the Convention and also the possible corrective actions needed to the existing laws if the Convention is ratified.

Comparison
      Article 32 call for protection of children from "performing any work that is likely to be hazardous" (and it further states) "or harmful to the child's health...." The reality in the United States is that there are minors working in hazardous employment and their health and safety are jeopardized. Within the child labor community, there is general consensus that our federal and state laws are dated and do not adequately protect working minors from hazards.

      The U.S. is number one among affluent nations in the rate of adolescents killed or injured at work. Every year approximately 100 minors die from work-related injury alone. The National Institute for Occupational Safety and Health estimate that more than 200,000 minors suffer work-related injuries every year. Our young people are being injured -- often seriously and permanently -- and even killed on the job.

      We know that injuries and deaths often occur when minors are working illegally in prohibited occupations. At least nineteen percent of the adolescents in a NIOSH study showed the minor was injured performing a job that was prohibited under law. Fatalities are even more striking. In a variety of studies, between 38 and 86 percent of all adolescent occupational fatalities occurred during prohibited activity. But, there is substantial injuries which occur as minors are performing tasks and operating machinery which is not prohibited under the FLSA and/or state child labor laws.

      In order to comply with the Convention, given the high rates of work related injuries among adolescents, it would be prudent for the federal government to review the Hazardous Orders and other prohibitions in light of current workplace technology and activities. It would also be expedient for the U.S. Department of Labor to review every decade the prohibited occupations to incorporate new findings about workplace hazards and emerging technologies.

      The first provision under the Convention, Article 32 is that State Parties shall provide for a minimum age or minimum ages for admission to employment. Obviously, there is no set minimum age for employment under the Convention. The FLSA sets a minimum age -- so is there a problem?

      There are some aspects of minimum age that could be challenged given the exceptions which occur under the FLSA and state laws. Although the FLSA sets a minimum age of 14, there are exceptions for actors, migrant and seasonal farmworkers, newspaper carriers, and a few other occupations. Under state laws, minimum age for employment ranges from no minimum age to 15 years. The states of Nevada and Vermont have no minimum age for employment and six other states set minimum ages below that established in the FLSA.

      Thirty states set a minimum age for non-agricultural employment at 14 years. Those are the kids working in McDonalds, for example. Yet, for agricultural employment, only 9 states set a minimum age at 14 years. Eighteen states have no minimum age for employment in agriculture and sixteen states set a minimum age below 14 years.

      In order to comply with the Convention, U.S. and state laws should set a consistent and reasonable minimum age for employment which applies to all labor, regardless of the occupation. We would recommend considering international standards on child labor, such as ILO Convention 138, which sets a minimum age for employment at 15.

      The second provision under Article 32 is to provide for appropriate regulation of the hours and conditions of employment. Again, the language does not set forth specific restrictions. However, the FLSA and state laws could be challenged given the outstanding evidence that excessive work hours have a detrimental effect on education among minors. Beginning in the mid 1980s, numerous studies on part-time student employment have concluded that excessive work during the school year negatively impacts academic achievement. When part-time employment exceed fifteen hours, a decline in academic achievement normally follows. The decline is hastened dramatically when employment exceeds twenty hours per week.

      The FLSA only restricts the hours of employment for minors who are under age 16. Currently, the Fair Labor Standards Act and most state laws allow fourteen and fifteen year olds to work eighteen hours during a school week and forty or more hours during summer holidays. Older teens are less protected. Sixteen and seventeen year olds may work forty or more hours both during the school year and summer vacation.

      Some state laws are even more flexible. Looking at just hours of work, there is wide variation among the states, although a majority of states follow the FLSA. Some states such as New York and Washington offer stronger hours restrictions while other states such as Georgia and Texas set forth weaker restrictions.

      Also on the state level, child agricultural workers are even less protected than under federal law. The maximum hours of work while school is in session is either greatly extended or no maximum is set at all. More than half of the states do not set maximum hours for 14- and 15-year-olds and more than 35 states do not set maximum hours for 16- and 17-year-olds for agricultural labor. For the states that do set maximum hours of work they are as high as 60 hours a week, even when school is in session.

      In order to comply with the Convention, consistent and reasonable hours of work must be set -- stronger than what is currently offered under federal and state laws. What is appropriate? Most experts suggest a maximum of four hours per day and twenty hours per week while school is in session for all minors over the age of sixteen. A reduction in hours for fourteen and fifteen year old minors to a maximum of three hours per day and fifteen hours per week while school is in session. Furthermore, reduce summer work for children under age sixteen to a maximum of six hours per day and thirty hours per week.

      The third provision under Article 32 is to provide for appropriate penalties or other sanctions to ensure the effective enforcement of the present article. A Rutgers University labor economist recently estimated that more than 290,000 children were employed unlawfully last year in the United States. The survey said that employers saved $155 million in wages last year by hiring underage workers.

      The U.S. Department of Labor's enforcement resources have declined by 23 percent in the past 15 years. While at the same time, core enforcement responsibilities have surged due to the growing size and complexity of the workforce and the economy, and the promulgation of new laws and regulations. The last few years have seen the passage of the Employee Polygraph Protection Act of 1988; Americans with Disabilities Act of 1990; and the Family and Medical Leave Act of 1993 to name a few. However, there have been virtually no increase in resources provided for the enforcement of laws and regulations.

      A 1996 survey of state labor departments found 26 states with ten or fewer compliance officers responsible for enforcing all labor laws in the state, including child labor. Twenty-six states also conducted fewer than 100 inspections of workplaces for child labor compliance in 1996. Three states (Idaho, Maryland, and South Dakota) conducted zero inspections. Some states have no enforcement authority or have no penalty structure for violations.

      In order to comply with the Convention, all states must ensure they have authority to assess civil money penalties for child labor violations. Moreover, penalties for child labor violations must be applied diligently and to the full maximum allowed under law. In light of declining resources, states and federal enforcement officers must coordinate their efforts to maximize their effectiveness.

Conclusion
      The major problem with respect to federal law, specifically the Fair Labor Standards Act, is agricultural labor. The FLSA allows broad categories of children to work in the agricultural sector to a degree that would conflict directly with the aims of the Convention. There are other less significant exclusions for newspaper delivery, holly wreath making, and work as an actor or performer, but the most formidable barrier to having existing laws comply with the Convention is the major changes that would be needed to regulate appropriately the use of child labor in agriculture.

      The problems with real and potential conflicts with the Convention and U.S. law multiply, as could be expected, when state laws are added to the equation. There are conflicts, ranging from the failure of some states to even have adequate child labor laws to complete exclusion from regulation areas of employment that the Convention would cover.

      What would help pave the way for an alignment with the Convention would be for all working children to have equal protection regardless of their occupation. All working minors should be equally protected in their minimum age of employment, hours restrictions, work permit requirement, and restriction from using dangerous machinery and substances, as well as ensure equal diligence to ensuring employer compliance with the law within all occupations where minors are working.

      We see the Convention as a helpful tool in better protecting working children and a possible impetus for improving child labor laws and their enforcement. Thank you.

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