Recent Child Labor Violations Highlight Need for Critical Labor Reforms
On July 14, 2023, Devan Tomas Perez, a 16 year old boy from Guatemala, was killed while working a night time sanitation shift at Marjac, a poultry processing facility in Hattiesburg, Mississippi. Devan’s death comes after the death of two other 16 year old boys working hazardous jobs this summer in the United States. On June 29th, Michael Schuls died while working at a Wisconsin sawmill and, on June 8th, Will Hampton died from injuries sustained working at a landfill. These three deaths occurred on the heels of massive investigative reporting efforts over the last several months from NBC, the New York Times, and 60 Minutes about children across the U.S. working in industries, like protein processing, with high rates of injuries, illnesses, and fatalities .
Many of these stories focused on the immigration and familial status of these children, namely that they are unaccompanied minors from Central and South America, shifting the blame away from employers. Instead, parents have been arrested and put into removal proceedings, and young adults who misrepresented their age to press and border officials have been met with vindictive hit pieces. Significant collateral consequences could ensue in their immigration cases, ruining not only their lives but those of other children and young adults fleeing poverty and violence.
But Schuls and Hampton were white, U.S. Citizen children. Their deaths illustrate that child labor violations are rampant and affect not only immigrant, indigenous, Black, and brown communities. Thus, the recent media attention on child labor highlights the need for reform of both U.S. immigration laws and federal child labor laws. It feels like not much has changed since the industrial revolution, when labor activists like Mother Jones were first sounding the alarm around the exploitation of children’s labor.
Child Labor Law
The history of labor reforms in the United States at the turn of the 20th century was deeply connected to child labor exploitation. During this time, child labor was commonplace, and children often worked long shifts in incredibly dangerous conditions. Perhaps the most famous child workers were the breaker boys: young boys who worked in mines and separated coal from slate and impurities by hand. Children also worked in factories, as chimney sweeps, and as domestic servants.
Some of the country’s earliest labor laws were focused on regulating child labor, especially in hazardous industries. In 1842, Massachusetts passed the nation’s first ever child labor law, prohibiting children under 12 years from working in factories. By 1850, every state in New England had followed Massachusetts’ example setting minimum legal working ages for children, varying from 9 to 14. In 1916, the Keating-Owen Act–the first federal law regulating child labor–passed. However, this law only regulated child labor used in certain businesses (factories, workshops, canneries, mines, and quarries) along with businesses that participated in interstate commerce. This meant that nearly 2 million more child workers in other types of businesses, most notably home-based businesses and farms, were not covered by the law. Far fewer than 10% of children were actually covered. The Keating-Owens Act was struck down by the Supreme Court two years later, and it was not until the passing of the Fair Labor Standards Act (FLSA) in 1938 that a federal child labor law would be upheld by the court. While the FLSA was a huge step forward in labor reform, establishing federal minimum wage and overtime requirements among other things, the delineation of what work is and is not permissible for children remains confusing and unclear.
Under the FLSA, there are two categories for child labor: agricultural and non-agricultural. For agricultural jobs, children as young as 10 are permitted to work if employers submit a request to the Secretary of Labor. Children under 12 can also work in agriculture with the consent of their parent or guardian, with no minimum wage requirement in place. Outside of agricultural jobs, the FLSA sets a minimum working age of 16 years old. However, the corresponding regulations to the FLSA allow for children as young as 14 to work in 15 categories of occupations ranging from office and clerical work to lifeguarding (but only if you are 15) to cooking, so long as the cooking does not occur over an open flame. The list goes on.
Thus, when trying to determine what jobs 14- and 15-year-olds can legally work, you are faced with a convoluted and unclear series of rules.
The U.S. Department of Labor provides a “Young Worker Toolkit” but these materials are just as confusing as the laws. For example, a bookmark from the Young Worker Toolkit attempts to provide a succinct explanation of what non-agricultural jobs 14 and 15 year old children can perform stating: “work in specific non-hazardous jobs in non-manufacturing industries under certain conditions.” To ascertain what these “non-hazardous jobs in non-manufacturing industries” are, children and their families can look to the DOL’s Youth Employment Guide, which states:
This language is hardly accessible for 14- and 15-yearolds, let alone unaccompanied minors and those with limited literacy, even if translated to Spanish and other languages.
Recourse for Child Labor Violations
While the three 16-year-olds who tragically lost their lives this summer were prohibited from doing the specific types of jobs they were doing, they were not prohibited from working in these hazardous industries. In this sense, the DOL guidance can be misleading; while DOL’s Youth Employment guide implies that 16-year-olds like Devan are generally not allowed to work in the meat processing industry, when looking at the regulations, there is no clear prohibition of individuals under 18. Rather, there are 7 categories of jobs children ages 16 and 17 are prohibited from doing in meat processing facilities, including the job Devan was doing on the night of his death: cleaning equipment. Instead of listing out exceptions, child labor regulations should flat out prohibit children under 18 from working in these industries. Until then, children, families, and employers will remain confused about what jobs these children can and cannot do, and in turn, our nation’s children, regardless of status, will continue to get injured and killed.
Thankfully, there is some recourse for child labor violations. These violations can be reported to the Wage and Hour Division, which can then assess back wages owed to minors and civil money penalties against companies violating child labor laws. For immigrant workers and children, there are some limited immigration protections available as well. Labor agencies can provide U-visa certifications for victims of certain crimes that occur in the workplace so long as there is an underlying law that the agency enforces that was also violated and the worker cooperates in the investigation. Additionally, workers, including children, who are victims of trafficking may be able to obtain a T-visa with the labor agencies providing a T-visa certification. Additionally, in January 2023, the Department of Homeland Security announced a streamlined process for immigrant workers to obtain labor-based deferred action, a temporary status for immigrant workers involved in a local, state, or federal labor investigation or dispute. Deferred action protects immigrant workers from retaliation in the form of immigration enforcement and provides them with a work permit, thereby enabling them to enjoy the full range of whistleblower protections including reinstatement into a job, backpay, and forward pay. Immigration practitioners who come into contact with immigrant workers and children should screen for these forms of relief.
Intertwined Labor and Immigration Movements
The FLSA is now 85 years old. At the time of its passing, members of Congress from the Jim Crow South, ensured that jobs where Black, brown, and immigrant workers were concentrated were exempt from its protections. To this day, farmworkers are exempt from overtime requirements. The child labor exceptions have resulted in poor children, immigrant children, and children of color being exploited in these industries as well. Thus, labor advocates pushing for changes to the FLSA, including removing overtime exemptions, must also push for these necessary child labor reforms. And immigrant advocates pushing for changes in our country’s immigration laws, particularly for unaccompanied minors, should join in the labor fight as well.
