United States Department of Labor (USDOL) has issued a Notice of Proposed Rulemaking to tighten child labor regulations for agriculture, and farmers and their advocates have until November 1 to comment on the proposed rules and their implications. The Notice details the history of child labor laws and regulations since enactment of the Fair Labor Standards Act (FLSA). The FLSA establishes a minimum age of 18 for hazardous work in nonagricultural employment and 16 in agricultural employment. Once agricultural workers reach age 16, they are no longer subject to the FLSA’s child labor provisions.
As a basis for proposing the new rules, USDOL cites the enforcement experiences of its Wage and Hour Division, recommendations made by the National Institute for Occupational Safety and Health, and a commitment to bring parity between the rules for young workers employed in agricultural jobs and the more stringent rules that apply to those employed in nonagricultural workplaces. USDOL issued a New Release summarizing its proposed rules as follows:
- Strengthening current child labor regulations prohibiting agricultural work with animals and in pesticide handling, timber operations, manure pits and storage bins.
- Prohibiting farmworkers under age 16 from participating in the cultivation, harvesting and curing of tobacco.
- Prohibiting youth in both agricultural and nonagricultural employment from using electronic, including communication, devices while operating power-driven equipment.
- Creating a new nonagricultural hazardous occupations order that would prevent children under 18 from being employed in the storing, marketing and transporting of farm product raw materials. Prohibited places of employment would include country grain elevators, grain bins, silos, feed lots, stockyards, livestock exchanges and livestock auctions.
- Prohibiting farmworkers under 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. A limited exemption would permit some student learners to operate certain farm implements and tractors, when equipped with proper rollover protection structures and seat belts, under specified conditions.
The proposed revisions also further define the FLSA exemption for children working on their parents’ farms and outline the process for determining civil money penalty amounts. USDOL contend that these provisions merely capture the details of current enforcement activity.
According to the USDOL, the revisions are an attempt to balance between providing youth employment opportunities and maintaining the safety of young workers. Farmers share the commitment to worker safety, but are often frustrated by the technical implementation of detailed regulations that do not anticipate or encompass the complexities of current farming operations. The USDOL’s tendency to narrowly construe all exemptions, combined with the inconsistent application of rules due to seemingly insignificant factors, is often cause for confusion. The rule making process provides the public, including farmers and their advocates, an opportunity to carefully review the Notice and provide comments and information to be considered by USDOL in deciding whether to issue final regulations as proposed or revised, investigate issues further or abandon the proposed rules.
Farmers should provide comments to educate USDOL regarding farming operations and the potential implications of the proposed rules to address their concerns. The entire text of the Notice and the proposed regulations may be found at www.regulations.gov, and comments on the proposed rules may be submitted on-line or sent to Wage and Hour Division, U.S. Department of Labor, Room S-3502, 200 Constitution Avenue, NW., Washington, DC 20210 on or before November 1, 2011.