Protection for Child Farmworkers under US Law Child Labor Laws and Wage and Hour Laws Federal Laws

Protection for Child Farmworkers under US Law Child Labor Laws and Wage and Hour Laws Federal Laws

The Fair Labor Standards Act (FLSA), enacted in 1938, is the federal law that sets standards for minimum wage, overtime pay, recordkeeping, and the employment of children. 326 Agricultural employers are exempt from many provisions of the law, leaving adult and child farmworkers without many fundamental protections that are provided to workers in other industries. For example, all farmworkers are exempt from overtime pay provisions, 327 and farmworkers on small farms are exempt from minimum wage requirements. 328 Farmworkers are also excluded from the federal law that guarantees employees the right to engage in collective bargaining and prohibits employers from interfering with freedom of association. 329

326 29 U.S.C. 201, et seq. A separate federal labor law specific to farmworkers, the Migrant and Seasonal Agricultural Worker Protection Act of 1983, sets additional employment standards for agricultural workers related to recordkeeping, payroll, disclosure of terms of employment. The law also requires farm labor contractors to register with the Department of Labor. The

Migrant & Seasonal Agricultural Worker Protection Act, 29 U.S.C. sec. 1801, et seq . 29 C.F.R. sec. 500.

327 29 U.S.C. sec. 213(b)(12). 328

29 U.S.C. sec. 213(a)(6)(A). 329 The National Labor Relations Act (NLRA), 29 U.S.C. sec. 152(3).

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The child labor provisions of the FLSA treat agricultural work differently from work in other industries, providing child farmworkers with less protection than all other working children. For example, outside of agriculture, the employment of children younger than 14 is prohibited; 330

14 and 15-year-olds may not work before 7 a.m. or after 7 p.m. (9 p.m. in the summer); 331 and the standard minimum age for work is 16. However, in agriculture there is no minimum age at which employers may hire children to work unlimited hours outside of school, day or night, provided the work takes place on a small farm with written parental consent. 332 In agriculture, any employer, regardless of the size of the farm, may hire children ages 12 and 13 to work unlimited hours outside of school, provided they have written parental consent or work on a farm where a parent is employed. 333

16. In agriculture, employers may hire children ages 14 and up to work unlimited hours outside of school. There is no parental consent requirement. 334

Under the FLSA, children working in US agriculture are also permitted to engage in tasks deemed “particularly hazardous” at younger ages than other working children. In nonagricultural occupations, the minimum age for particularly hazardous work is 18, including for children working in a parent’s business. In agriculture, 16 and 17-year-olds hired to work on farms are permitted to work in particularly hazardous occupations. 335 For example, using a power-driven circular saw or band saw is allowed for children starting at age 16 in agriculture; whereas in other industries, the minimum age for using such saws is

18 years. Children who work on a farm owned or operated by their parents can do particularly hazardous work at any age, no matter how young. 336 The disparate treatment of child agricultural workers is particularly troublesome in light of federal data indicating agriculture is the most dangerous industry open to young workers. 337

330 The FLSA allows for very limited exceptions to this, including work delivering newspapers, acting, and making evergreen wreaths.

331 Children ages 14 and 15 can work in certain limited jobs, such as cashiers, stocking shelves, or washing cars, in retail or food service stores, and in gas stations but only for limited hours: up to 40 hours in a nonschool week; up to 18 hours in a

school week; up to 8 hours on a nonschool day; and up to 3 hours on a school day. 332

29 U.S.C. sec. 213(c)(1)(A). A "small farm" is one which did not employ more than 500 man-days of agricultural labor (or about 7 workers) during any calendar quarter of the preceding year. 333

29 U.S.C. sec. 213(c)(1)(B). 334

29 U.S.C. sec. 213(c)(1)(C). 335

29 U.S.C. sec. 213(c)(2). 336 Compare 29 C.F.R. 570.71(a)(3)(iv) (power saws in agriculture) with 570.65(a)(i) (power saws in all other industries).

337 See Section IV of this report for federal data on fatal and non-fatal occupational injuries in agriculture in 2012.

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State Laws States have the power to provide stronger labor protections than federal law, particularly

for young workers. However, the four states where Human Rights Watch conducted research fail to provide any additional protections to child farmworkers. There is no general child labor law in North Carolina. Child labor laws in Kentucky and Tennessee specifically exempt agricultural workers, 338 and Virginia’s child labor law is no more protective than federal law. 339 Laws governing wages and hours in North Carolina, Kentucky, and Virginia do not apply to agricultural workers, 340 and Tennessee does not have state- level wage laws.