Recent child labor violations highlight the need for critical labor reforms

On July 14, 2023 Devan Tomás Perez, 16-year-old boy from Guatemala was killed during a night sanitation shift at Marjac in Hattiesburg. Devan Tomas Perez’s death follows the deaths of two 16-year-old boys who died in the United States this summer while working at hazardous jobs . Michael Schuls, a Wisconsin-based sawmill worker, died on June 29, and Will Hampton, a Wisconsin landfill worker, died on June 8, from injuries sustained while working. The three deaths followed a series of investigative reports by NBC New York Times and 60 Minutes in the past few months about children working across the U.S. in industries with high rates for injuries, illnesses and fatalities, such as protein processing.

These stories tended to focus on the immigration status and family situation of the children, in particular that they were unaccompanied minors, and shifted the blame from the employers. Parents have instead been arrested and placed in removal proceedings. Young adults who lied about their age when speaking to the press or border officials were met with a vindictive hit piece. In their immigration cases, they could suffer serious collateral consequences that would ruin not only their own lives but also those of children and young people fleeing violence and poverty.

Schuls and Hampton, however, were both white children who were U.S. citizens. These deaths show that child labor is rampant, and not just in immigrant communities, but also in indigenous, Black and brown communities. The recent media attention to child labor emphasizes the need for reforms of U.S. Immigration laws as well as federal child labor laws. There is not much change since the Industrial Revolution, when labor activists such as Mother Jones first raised the alarm about the exploitation and exploitation of child labor.

Child Labor Law

Child labor was a major issue in the United States during the early 20th century. Child labor was widespread during this period, with children working long hours in dangerous conditions. The most notable child workers of the time were the “breaker boys”: boys who worked underground in the mines, separating coal from slate, impurities, etc. by hand. As well as working in factories and chimney sweeps, children also served as domestic servants.

The first labor laws in the United States were aimed at regulating child labour, particularly in hazardous industries. Massachusetts was the first state to pass a child labor law in 1842. It prohibited children under the age of 12 from working in factories. By 1850 every New England state had followed Massachusetts and set minimum legal working ages ranging from 9-14. The Keating-Owen Act, the first federal law to regulate child labor, was passed in 1916. This law, however, only covered child labor in certain industries (factories and workshops, canneries and mines, quarries, etc.) as well as businesses that engaged in interstate trade. The law did not cover nearly 2,000,000 child workers who worked in other businesses. This included home-based businesses, farms and most importantly, canneries. Less than 10% of the children in question were covered. The Supreme Court struck down the Keating-Owens Act two years later. It was not until 1938, when the Fair Labor Standards Act passed that a federal law protecting children was upheld. The FLSA, which established federal minimum wages and overtime requirements, was a major step in labor reform. However, it is still unclear what type of work children are allowed to do.

The FLSA has two categories of child labor. These are agricultural and non-agricultural. Children as young as ten are allowed to work in agricultural jobs if their employers make a formal request to the Secretary for Labor. With the consent of a parent or guardian children under 12 years old can work in agriculture. There is no minimum wage requirement. The FLSA has a 16-year-old minimum age for all jobs except agricultural. The FLSA regulations allow children as young 14 years old to work in 15 different categories, ranging from office work and clerical jobs to lifeguarding, but only if they are 15 or older, to cooking, as long as it is not done over an open flame. List goes on.

When trying to figure out what jobs 14 and 15 year olds are allowed to work legally, there is a confusing and unclear set of rules.

The U.S. Department of Labor offers a “Young Worker toolkit”, but these materials can be just as confusing as laws. the bookmark from the Young Worker Toolkit provides a concise explanation of the non-agricultural work that 14 and 15-year-old children are allowed to do. It states:

Even if it is translated into Spanish or other languages, this language is not accessible to 14 and 15 year olds, much less unaccompanied minors or those with limited literacy.

Recourse in Child Labor Violations

The three 16-year olds who tragically died this summer were not prohibited to work in these dangerous industries. The DOL guidance in this regard can be misleading. While the Youth Employment Guide of the DOL implies that 16-year olds such as Devan are not generally allowed to work within the meat-processing industry, the regulations do not clearly prohibit individuals under 18 years. There are seven categories of jobs that children 16 and 17 years old are not allowed to do in meat processing plants, including cleaning equipment, which Devan was performing on the night he died. Child labor laws should not list exceptions but instead prohibit children under the age of 18 from working within these industries. Children, employers, and families will be confused until then about the jobs that these children are allowed to do. This will lead to injuries and deaths of children in our country, no matter their status.

There are some remedies for violations of child labor laws. The Wage and Hour Division can assess civil penalties and back wages due to minors for violating the child labor laws. There are also some immigration protections for children and immigrant workers. The labor agencies can issue U-visa certificates to victims of certain workplace crimes, as long as the agency is also responsible for enforcing the law and the worker has cooperated in the investigation. Workers, including children, who have been victims of human trafficking, may also be eligible for a T visa with the help of labor agencies. announced by the Department of Homeland Security in January 2023 an accelerated process for immigrants to obtain labor-based status, a temporary situation for those involved in local, state or federal labor investigations or disputes. Immigrant workers are protected from retaliation by immigration enforcement. They also receive a work permit and can enjoy whistleblower rights such as reinstatement in a job and backpay. Immigration practitioners should be aware of these types of relief when they come into contact with children and immigrant workers.

Intertwined Labor and Immigration Movements

The FLSA has been around for 85 years. Members of Congress from Jim Crow South ensured at the time that it was passed, that jobs where Blacks, browns, and immigrants were concentrated were excluded from its protections. Farmworkers have been exempted from the overtime requirement since its inception. These child labor exemptions have led to the exploitation of poor children, immigrants, and children from different backgrounds. Labor advocates who are pushing to change the FLSA and remove overtime exemptions must also be pushing for these child labor reforms. Immigrants who are pushing to change our immigration laws, especially for unaccompanied minors should also join the labor movement.