CRS Report for Congress
Child Labor in Hazardous Occupations:
“On-the-Job Driving” by Youth Workers
Updated December 4, 1998
William G. Whittaker
Specialist in Labor Economics
Economics Division

Congressional Research Service ˜ The Library of Congress

This report examines the joint manner in which Congress and the Secretary of Labor have
approached the protection of young persons (16 and 17 year-olds) who drive vehicles as part
of their regular work assignments. Reference is made to the Department of Labor’s
development of Hazardous Occupations Order No. 2 (HO 2) which deals with such driversth
and to the response from Congress — including consideration of H.R. 2327 of the 105
Congress. It concludes with discussion of rulemaking versus legislation for dealing with
child labor issues, and explores the safety issue with respect to teen drivers. This product
may be updated if developments warrant.

Child Labor in Hazardous Occupations:
“On-the-Job” Driving by Youth Workers
The Fair Labor Standards Act (FLSA) of 1938, as amended, is the primary
federal statute dealing with the minimum wage, overtime pay, child labor and related
subjects. In its initial enactment, Congress established a general framework for
regulation of child labor but left to the discretion of the Secretary of Labor the
determination of which types of work ought to be considered “particularly
hazardous” for persons under 18 years-of-age. Where the Secretary determined that
an area of work was “particularly hazardous,” he was directed by Congress to
develop regulations under which young persons might be employed or to bar them
totally from such employment. The result has been the development, through the
years, of seventeen Hazardous Occupations Orders (HOs) for nonagricultural work.
Under HO 2, the employment of persons under 18 years-of-age is restricted in
occupations that require operation of a motor vehicle. Such employment must be in
conformity with stated safety standards where vehicle operation is required, must not
involve driving outside of daylight hours, and what driving is permitted must be
“occasional and incidental” to the young person’s employment. With only slight
modification, that standard has prevailed at least since the 1960s.
Child labor standards may not always have been closely enforced, and it is
possible that they have not always been clearly understood by employers and
workers. During the late 1980s and early 1990s, the Department of Labor undertook
a program of vigorous enforcement of child labor law. Among those found in
violation were a group of automobile dealers from the State of Washington. Faced
with fines, the dealers appealed to their Members of Congress to have the standard
changed: permitting broader employment of young persons in work requiring
operation of motor vehicles. During the 103rd Congress, legislation to modify HO

2 was introduced by Representative Mike Kreidler (D-Wash.). The legislation wasth

not acted upon; in the 104 Congress, similar legislation was introduced by
Representative Randy Tate (R-Wash.) and Senator Gorton. A hearing on the issue
was held in the House Subcommittee on Workforce Protections (September 1996),
but the legislation died at the close of the Congress.
Modification of HO 2 has been endorsed by automobile dealers. It has been
opposed by the Department of Labor and by groups associated with children’s
advocacy such as the Child Labor Coalition and the National Consumers League.
In the 105th Congress, Representative Combest introduced H.R. 2327, a bill
structured differently from the Kreidler/Tate/Gorton measure but proposing to alter
HO 2 to permit youth workers wider opportunity to drive in the course of their
employment. The bill, with amendment, was approved by the House on September
28, 1998, and by the Senate, with further amendment, on October 12, 1998. The
House concurred with the Senate version of the bill; the measure was signed on
October 31, 1998 (P.L. 105-334). In its final form, the bill deals with young persons,
17 years-of-age, who drive but prohibits occupational driving by persons under 17

DOL and the Issue of Child Labor.....................................1
Oversight under Secretary Wirtz (1968)............................1
Oversight under the Reagan Administration.........................3
Developments Under the Bush And Clinton Administrations............4
Secretary Brock Appoints an Advisory Committee...............4
Momentum Grows.........................................5
Secretary Dole Develops a “Strike Force”......................6
Continuing Regulatory Reform...............................7
Recent Development of the Issue.....................................8
The 103rd Congress............................................8
The 104th Congress.............................................9
Action Taken by the 105th Congress..................................11
Committee Consideration in the House............................11
Floor Consideration in the House................................12
Senate Action and Final Passage.................................15
Some General Considerations.......................................16
Rulemaking -vs- Legislation....................................16
The Impact For Future Rulemaking?..............................17
The Safety Factor.............................................18

Child Labor in Hazardous Occupations:
“On-the-Job” Driving by Youth Workers
The Fair Labor Standards Act (FLSA) of 1938, as amended, generally, permits
unrestricted employment of persons over 16 years-of-age in nonhazardous work.
However, Congress specifically directed that persons between 16 and 18 years of age
be excluded from employment in types of work “which the Secretary of Labor shall
find and by order declare to be particularly hazardous for the employment of
children between such ages or detrimental to their health or well-being.”1 (Emphasis
added.) How “hazardous” was to be defined and what elements entered into the
definition of “hazardous” were delegated to the Secretary.
Through the years, Secretaries of Labor have reviewed various types of
workplace operations for their suitability for the employment of young workers.
Where such operations have been found to be “particularly hazardous” for such
workers, the Department (DOL) has issued Hazardous Occupations Orders (HOs)
excluding from such employment persons under 18 years-of-age. Seventeen such
Orders (nonagricultural) are now in place. HO 2, which deals with the operation of
motor vehicles by persons 16 and 17 years-of-age, has been a subject of legislative
interest through the past several Congresses. The evolution of HO 2 and its
implications are discussed here as part of a broader context of child labor
DOL and the Issue of Child Labor
Though the basic child labor provisions of the FLSA had been in place since
1938, their enforcement, it appears, may not always have had the highest priority
among the assorted responsibilities of the Department.2 Within DOL, child labor
regulation falls under the Wage and Hour Division which also oversees a diverse
range of workplace standards statutes — among them, minimum and prevailing
wages and overtime pay.
Oversight under Secretary Wirtz (1968)
In 1968, Labor Secretary Willard Wirtz instituted a review of the orders as part
of “an effort to increase youth employment opportunities wherever this is possible

1See Title 29 U.S.C. 203(l).
2Bureau of National Affairs, Daily Labor Report, March 16, 1990. p. A14.

without endangering their health or safety.”3 The review process was detailed and
technical. The Department solicited the views of individuals and organizations
(safety engineers, officials from unions, trade association, manufacturers, etc.) with
respect to specific hazardous occupations orders. The Secretary recalled: “Over 200
responses were received. These responses yielded a variety of suggestions. In some
instances these suggestions were to relax certain aspects of the orders and in other
cases it was proposed to extend their coverage.” After digesting the results, the
Department published a notice of proposed rulemaking and invited comment.
Among proposals for consideration was an amendment to HO 2 to allow persons
between 16 and 18 years-of-age to operate motor vehicles, under certain limited4
circumstances, as part of their regular employment.
Taking into account that, in most states, persons of 16 and 17 years-of-age are
newly-licensed drivers, lacking experience on the road, the Department determined
that work-related operation of motor vehicles by 16- and 17-year-olds was
“particularly hazardous” and that such young persons ought not to be employed in5
such activity. However, HO 2 did provide an exemption with respect to
“[i]ncidental and occasional driving” by the targeted group, stating that the ban:
...shall not apply to the operation of automobiles or trucks not exceeding 6,000
pounds gross vehicle weight if such driving is restricted to daylight hours;
Provided, Such operation is only occasional and incidental to the child’s
employment; that the child holds a State license valid for the type of driving
involved in the job which he performs and has completed a State approved driver
education course; And provided further, that the vehicle is equipped with a seat
belt or similar device for the driver and for each helper, and the employer has
instructed each child that such belts or other devices must be used.
Still excluded for persons under 18 years-of-age, however, was driving that involved6
the towing of vehicles. With certain refinements of language (for example, “child”
would become “minor”) and definitional adjustments, the provision remains in

3United States, Department of Labor. Fifty-sixth Annual Report, Fiscal Year 1968.
Washington, U.S. Govt. Print. Office, 1969. p. 17. This series is cited hereafter as Report
of the Secretary of Labor, with the year under review.
4Federal Register, March 28, 1968. p. 5100-5102.
5An exception (conforming to practice in some states) was allowed where 16 and 17 year-
olds drove school buses: largely, it would appear, in rural areas and under close supervision.
6Federal Register, September 10, 1968. p. 12777.
729 CFR 570.52(b)(1). Early in the Nixon Administration, HO 2 was again considered as
it applied to certain school bus drivers under the age of 18 years (a specialized segment of
the order), but the basic requirement as set forth under Secretary Wirtz appears to have
remained unchanged. See Federal Register, August 9, 1969. p. 12946.

Oversight under the Reagan Administration
After remaining a relatively quiet issue through much of the 1970s,8 federal
regulation of child labor reemerged as a high-visibility issue early in the Reagan
Administration. On July 16, 1982, the Department proposed major changes in its
structure of child labor regulation, allowing a 4-week comment period.9 The
proposed regulations did not focus upon HO 2, per se, but had a potentially serious
impact for any change in existing child labor regulation. On July 28, 1982, the
House Subcommittee on Labor Standards, chaired by Representative George Miller,
commenced the first of two days of hearings on the issue. The wisdom and timing
of the proposals was sharply questioned. Resolutions were introduced both in the
House and in the Senate (H.J.Res. 551 and S.J.Res. 223) that, had they been adopted,
would have prevented the Secretary of Labor from proceeding with the proposed
restructuring. Then, just prior to the second day of hearings (August 3, 1982), the
Department decided to extend the comment period; further consideration by the10
Department of Labor would follow.
By early 1983, with the comment period closed, some further action on child
labor was generally expected. “Federal wage and hour regulators are sifting through
a blizzard of letters from restaurant operators across the nation supporting the
Reagan Administration’s plan to relax child labor restrictions on the employment of
young teenagers in food-service outlets,” Nation’s Restaurant News reported. The
trade paper also acknowledged that the DOL proposals had “generated a storm of
protest from educational groups, labor unions and Congressmen who expressed
outrage over what some described as a scheme to enable restauranteurs to exploit
school age workers.” Senator Moynihan, the paper stated, had “called the
department’s pending regulations an ‘unconscionable’ effort to ‘leave teenagers open
to exploitation by a few unscrupulous employers,’” while Senator Chafee “warned11
the changes could ‘result in a greater risk to the safety of our working youths.’”
In April 1984, the AFL-CIO stated that “[l]aws that have protected children
from exploitation by employers for nearly half a century will be gutted if the Reagan

8The 1977 FLSA amendments (P.L. 95-151) included a provision allowing for employment
of children at young at 10 years-of-age in field harvest. However, agricultural employers
were required to certify that any children so employed would not be harmed by pesticides
used in the fields or, conversely, that no pesticides had been used. Controversy and litigation
followed. See: Federal Register, March 7, 1980, p. 15168-15170; Federal Register, March

18, 1980, p. 17160; and Federal Register, August 19, 1980, p. 55175-55177.

9The proposed regulatory changes were contentious, both for their content and conception
and because the time allowed for comment was perceived by some to be insufficient.
10U.S. Congress. House. Committee on Education and Labor, Subcommittee on Labor
Standards. Oversight Hearings, Proposed Changes in Child Labor Regulations. Hearings,th
97 Cong., 2d Sess., July 28, and August 3, 1982. 144 p. See also: Federal Register, July

16, 1982, p. 31010-31011, and 31254-31259; and Federal Register, August 6, 1982, p.


11Nation’s Restaurant News, February 28. 1983. p. 2, 77.

Administration succeeds in its latest attempt to weaken child labor regulations.”12
In October 1984, in listing its semi-annual regulatory agenda, DOL included revision
of child labor regulations, including possible changes in HO 2 — the prohibition
against employment of minors, under certain conditions, in the operation of motor13
vehicles. But, nothing happened. In November 1984, the Nation’s Restaurant
News headlined: “Pols May Pull Child Labor Scheme Off Back Burner.” It said that
“policy makers in the Reagan Administration may soon revive a number of
politically sensitive initiatives affecting the food-service industry” — among them,
the effort to “‘modernize’ child labor laws” to “remove unnecessary and arbitrary
restraints on the job duties of young workers.”14 In early January 1985, the same
source reported: “The Wage and Hour division plans to ‘reform’ child labor ground
rules....” Recalling the controversy that followed the earlier initiative, it suggested:
“A less controversial version may emerge this year.”15 In mid-1986, the Reagan
Administration (DOL) was still projecting child labor reform including the HO 216
revisions with respect to motor vehicle operation. But, the new child labor
regulations were not forthcoming. The issue remained controversial.
Developments Under the Bush And Clinton Administrations
Although the proposals of 1982 had been relatively “minor” in content,
according to Nancy Flynn, acting deputy director of the Wage and Hour Division,
they had ultimately been withdrawn because of the controversy they had provoked.
Flynn suggested that it had been “somewhat naive” of the agency to propose changes
without seeking outside input beforehand rather than “operating in a vacuum.”17
Secretary Brock Appoints an Advisory Committee. In July 1987, Labor
Secretary William Brock tried a new approach, announcing creation of a Child Labor
Advisory Committee “to advise the Secretary of the effective administration of the
child labor provisions” of the FLSA. Secretary Brock announced:
The Committee will consist of 21 members representing child
advocacy groups, employers, unions, the education community, civic
organizations, State officials, child guidance professionals, and safety
groups. 18

The Committee will function solely as an advisory body....
12AFL-CIO News, April 28, 1984. p. 1.
13Bureau of National Affairs, Daily Labor Report, October 31, 1984. p. 233-235.
14Nation’s Restaurant News, November 26, 1984. p. 9.
15Nation’s Restaurant News, January 7, 1985. p. F8.
16Bureau of National Affairs, Daily Labor Report, August 11, 1986. p. D3.
17Bureau of National Affairs, Daily Labor Report, March 10, 1988. p. A11.
18Federal Register, July 21, 1987. p. 27476. Among allegations concerning the proposals
of 1982 had been that they have been drawn up to meet industry needs without sufficiently
taking into account the views of child advocacy and related groups. In part, the Advisory
Committee was intended as a means through which to remedy this perception.

By the time the Committee met for the first time on March 9, 1988, Secretary
Brock had been replaced by Ann McLaughlin. Wage and Hour Administrator Paula
Smith advised the members that federal child labor regulations were “outdated,
outmoded, and obsolete.” The Committee elected a chairperson, Linda Golodner of
the National Consumers League, and divided itself into three subcommittees, one of
which was to consider HO 2.19 When the HO 2 Subcommittee met on July 6, 1988,
its agenda included “whether definitions under this Order and the exemption from
the Order for incidental and occasional driving need to be refined, and whether a
change should be made in the gross vehicle weight of types of vehicles permitted
under the exemption for incidental and occasional driving.”20 The subcommittees
continued to meet into the fall of 1988 when a final report was filed which, inter alia,
urged modification (strengthening) of HO 2 including the “incidental and occasional
driving” standard.21 In January 1989, Elizabeth Dole assumed her duties as Secretary
of Labor in the Bush Administration.
Momentum Grows. In May 1989, the National Consumers League launched
its own year-long study of child labor in the United States under Golodner’s
direction. Ms. Golodner indicated that, from discussion with people in the field, she
had found that “child labor is often on the low end of the priority list.” She
suggested that “the picture will be even bleaker” if the Department does not get
“serious about enforcing the law” and observed that “it is taking very, very long for
the recommendations [of the Advisory Committee, submitted in October 1988] to get
through the bureaucracy.” Responding, the Department noted that the
recommendations had only reached down to Wage and Hour Administrator Paula
Smith in April (six months after their submission) and that they were currently under
consideration. Other, more recent suggestions, were still moving through the22
Through the period, numerous bills dealing with child labor were introduced in
the Congress and several hearings were held. In general, witnesses pointed to abuses
of child workers and the need for tougher standards, while there was some
suggestion that greater vigor was needed on the part of the Department of Labor. In
March 1990, Representative Donald Pease (D-Ohio) observed that “a package of

19Federal Register, February 17, 1988. p. 4788. Part of HO 2, as noted above, dealt with
the employment of 16 and 17 year-olds as school bus drivers, primarily utilized in two or
three states. Although these bus drivers were the immediate concern of the Subcommittee
on HO 2, its responsibilities were broader. See also Bureau of National Affairs, Daily Labor
Report, March 10, 1988. p. A11-A12.
20Federal Register, June 14, 1988. p. 22235.
21Federal Register, November 20, 1991. p. 58627. Among other recommendations, the
Committee urged “defining and delimiting the terms ‘occasional and incidental’ driving and
‘outside helper,’ specifically prohibiting the operation of trucks on private property, and
specifically excluding motorcycles, mopeds, or similar vehicles from the ‘occasional and
incidental’ exemption.” See Federal Register, May 13, 1994. p. 25171.
22Bureau of National Affairs, Daily Labor Report, May 18, 1989. p. A10-A11. Ultimately,
the term of the Advisory Committee expired and was not extended. The initiative on the part
of the National Consumers League evolved into The Child Labor Coalition, a broad umbrella
group of organizations with an interest in child welfare and child labor practice, both within
the United States and within a global context.

recommendations from the Child Labor Advisory Committee sits on the desk of the
Secretary of Labor unanswered since 1988.” And, he suggested that the actions of
the Department were “a finger in the dike.”23
Secretary Dole Develops a “Strike Force”. Child labor has normally been an
issue of some interest with the public and within the legislative community.
However, during the late 1980s and early 1990s, it achieved unusually high
visibility. In part, the stimulus to interest in the subject may have been inadvertent.
The proposals of 1982 and creation of the Child Labor Advisory Committee, each
in different ways, may have stimulated interest in child labor standards. Through the
period, a steady stream of bills appeared, both in the House and Senate, with
numerous hearings. The Department of Labor reacted with renewed enforcement
activity. In her annual report for 1988, Secretary McLaughlin noted: the Wage and
Hour Division “found 20,454 minors employed in violation of the child labor
provisions of the FLSA during fiscal 1988, and it assessed $2.14 million in child
labor civil penalties against 902 employers who were found to be illegally employing24

13,838 minors.” With the appointment of Elizabeth Dole as Secretary of Labor,

the Department took on a role of higher visibility.
In testimony before the House Subcommittee on Labor Standards in June 1990,
Secretary Dole had praise for employers “who legally employ young people within
the bounds of the child labor laws [and] are helping us energize and motivate our
most precious resource, our human resource.” But, she continued, “...there can be
no doubt that there are employers violating our child labor laws. Indeed, we’ve
witnessed a disturbing 128 percent increase in violations in the past four years.”
Secretary Dole reacted by increasing, substantially, the Department’s child labor
enforcement efforts. She created a series of “strike forces” which moved in on
targeted industries in which children were most likely to be employed. The purpose
of these initiatives (collectively, “Operation Childwatch”) was to promote25
understanding of child labor law and to redress abuses.
Strike forces were directed, initially, toward the retail, fast-food, grocery and
restaurant industries; then, toward agriculture and the garment industries, with others
to follow. In her annual report for 1990, Mrs. Dole noted:
The first strike force, in March 1990, utilized more than 500
investigators for two full days. The results for Strike Force One show that
4,093 cases were initiated, disclosing 16,385 underage youth illegally
employed and estimated civil money penalties of over $5.4 million.
The second strike force initiative was a one-day effort involving
almost all of the Wage and Hour Division’s investigators. This strike
force was conducted in June, before school was out in most areas and
before the onset of summer employment. ... For Strike Force Two, results

23Bureau of National Affairs, Daily Labor Report, March 16, 1990. p. A16.
24Annual Report of the Secretary, 1988. p. 59.
25U.S. Congress. House. Committee on Education and Labor, Subcommittee on Labor
Standards. Hearings on the Child Labor Provisions of the Fair Labor Standards
Hearings, 101 Cong., 2d Sess., June 28, July 19, and August 1, 1990. p. 16-17.

show that the Division initiated 2,149 investigations and found 5,877
underage youth illegally employed; estimated civil money penalties were
more than $2 million.
The third strike force was held August 14 and 15 using half of the
Division’s investigators nationwide. This strike force was primarily
targeted on four industries: garment; construction; the amusement park and
recreation industry; and agriculture (where harvest activities were in
progress, and in conjunction with the Department’s on-going farm labor
enforcement activities). The results for Strike Force Three show that the
Division initiated 1,334 investigations ... in which 2,198 underage youth
were found to be illegally employed and estimated civil money penalties
were more than $580,000.
The fourth strike force was a two-pronged initiative that took place
during the month of September.... The preliminary results from Strike
Force Four, as of the end of FY 1990, revealed that 1,782 cases were
initiated and 1,426 underage youth were found illegally employed; ...26
Secretary Dole (and, in some measure, Secretary McLaughlin) did not promulgate
new regulations. Rather, they had chosen to enforce standards long in place but27
frequently, it appears, violated with impunity.
Continuing Regulatory Reform. In late October 1990, the Department
published a proposed rule suggesting changes in three hazardous occupations orders,
one of which was HO 2; its concern with HO 2 focused upon the issue of 16 and 17
year-old school bus drivers. It moved to end that option, arguing that “16- and 17-
year-old minors generally have more accidents per million miles and per driver” than
those over 18-years-of-age and that “16- and 17-year-old drivers lack experience,
maturity and have poorer judgment than adults.” It proposed no change in the28
broader exemption under “incidental and occasional.”
The final rule was issued in November 1991 — by which time former
Representative Lynn Martin had been appointed Secretary of Labor. The
Department reviewed the evidence and statements submitted during the comment
period. It noted that the school bus issue was now largely a dead letter; only one
school district in Wyoming was then exercising the option. Of twelve comments
received, only those associated with Wyoming endorsed employment of 16- and 17-
year-old school bus drivers. Thus, the Department opted to allow the Washakie
County, Wyoming, schools to utilize the program through the close of the 1995-1996
school year; thereafter, only drivers over 18 years-of-age might be hired. With
respect to further changes in the HO 2 requirements (i.e., “incidental and

26Report of the Secretary of Labor, 1990. p. 66-67.
27The use of “targeting” or strike force sweeps continues to be utilized as an enforcement
tool. See, for example: Nations Restaurant News, April 6, 1998. p. 1 and 90; Nations
Restaurant News, May 4, 1998. p. 45; and Bureau of National Affairs, Daily Labor Report,
April 15, 1998. p. A6.
28Federal Register, October 23, 1990. p. 42813.

occasional”), the Department stated that “if any such changes are appropriate, they29
should be made the subject of a separate rulemaking.”
In May 1994, with Robert Reich as Secretary of Labor, the Department
proposed a general review of federal child labor regulation somewhat similar to that
initiated under the Reagan Administration — though with a different orientation. It
called for comment on any area that might be of interest including the “incidental30
and occasional” provisions of HO 2. While the Department issued revisions of
certain regulations in April 1995, modification of HO 2 was not among them.31 More
broadly, the review commenced by Secretary Reich is ongoing — though Secretary
Reich has left office.
Recent Development of the Issue
If reformers, child advocates and some Members of Congress had applauded the
more activist enforcement/compliance initiatives of Secretary Dole, the reaction from
some segments of the employer community was not supportive. And, that reaction
came swiftly.
The 103rd Congress
In April 1994, Representative Mike Kreidler (D-Wash.) introduced H.R. 4304,
a bill to modify the hazardous occupations treatment of “minors between 16 and 18
years of age who engaged in the operation of automobiles.” Representative Kreidler
protested that violation of what he termed an “outdated” child labor provision had
resulted in fines of $197,000 against 59 Washington State auto dealers. After
reviewing the statute and the regulations, Mr. Kreidler observed: “Typically, lot
attendants are responsible for moving cars around the lot, and washing and preparing
cars for customers. And on occasion,” he added, “these 17-year-old employees also
fuel vehicles at nearby gas stations.” He charged that auto dealers were unable to
find a definition of “incidental and occasional” and expressed amazement that the
Department had, “with unexplained zeal ... pursued cases against auto dealers.” He
concluded that “the word is out” that “it’s safer to fire teenager lot attendants than
to risk violating a law even the Department of Labor can’t define.”32
The Kreidler bill directed that the Secretary of Labor, within one year from
enactment, amend the regulation governing operation of automobiles and trucks “to
eliminate the requirement that such operation be only occasional and incidental to
the minor’s employment and to add the requirement that such operation not be the
primary duty of the minor’s employment.” As the Representative explained it, the

29Federal Register, November 20, 1991. p. 58626-58632.
30Federal Register, May 13, 1994. p. 25167-25173.
31Federal Register, April 17, 1995. p. 19336-19339.
32Congressional Record, April 26, 1994. E779-E780. Ultimately seven other Members from
Washington delegation signed on as cosponsors of H.R. 4303 — with other Members of

bill would “allow a teenager to drive up to 50 percent of the time as long as driving33
was not the primary duty.” Referred to the House Committee on Education and
Labor, no action was taken on the proposal.
The 104th Congress
On July 20, 1995, Representative Randy Tate (R-Wash.) reintroduced the
Kreidler bill (now, H.R. 2089).34 Companion legislation was introduced, August 1,

1995, by Senator Gorton (S. 1099). Noting the value of work for young persons,

Senator Gorton charged that the federal government “is denying young people the
opportunity to work in at least one sector of our economy, car dealership.” He
stated: “... what we are talking about today ... is not exploitation, but perfectly
reasonable actions” — “to drive cars for short distances, say, from one lot to another
across the street, or to a nearby gas station.” Senator Gorton observed:
The Department of Labor, for reasons which I cannot fathom, has imposed
almost $200,000 worth of fines on dealerships throughout Washington
State, even though the dealerships did not require their 16- and 17-year-old
employees to drive often, or for a long time, but only in very limited
He stated that S. 1099 “will be better for car dealerships, and better for kids who35
want to work.”
Hearings on the Tate bill commenced before the House Subcommittee on
Workforce Protections on September 12, 1996. Following opening comments by
Subcommittee Chairman Ballenger, Representative Tate appeared as the lead
witness. He pointed to the “unfair” manner in which the Department of Labor had
enforced the federal child labor law and which “has prevented employers from hiring
hundreds of teenagers in my district.” DOL, he charged, had shifted its
interpretation of the statute from “occasional and incidental” to “rare and
emergency” with respect to work-related driving by 16- and 17-year-olds, an
“unworkable standard” in his judgment. The Department, he suggested, should have
been pursuing “other priorities” rather than “punishing businesses that provide part-36
time jobs and summer jobs to teenagers.”
Representative Tate was followed by Edward Fitzpatrick, an automobile dealer
(two dealerships with 75 employees) from Renton, Washington, representing the
Washington State Auto Dealers Association. He said that he had thought the
Department of Labor would “be pleased that a private business, without government
subsidy or funding, hired these teenagers;” but, instead, he “was fined $1,200 for
alleged child labor violations under the Fair Labor Standards Act for allowing

33Congressional Record, April 26, 1994. E780.
34Representative Tate had replaced Representative Kreidler as a result of the 1994 election.
35Congressional Record, August 1, 1995. p. S11107.
36U.S. Congress. House. Committee on Economic and Educational Opportunities.
Subcommittee on Workforce Protections. Oversight Hearing on the Fair Labor Standardsthnd
Act. Hearings, 104 Cong., 2 Sess., September 12, 1996. p. 2-8.

teenagers to drive more often than in ‘rare or emergency’ situations. I was one of
nearly 60 dealers in the Seattle area that was fined.” He argued that these dealers
had been “unfairly fined.” The Washington State Auto Dealers Association, he
concluded, “strongly supports” the clarification contained in the Tate bill.37
Linda Golodner, as President of the National Consumers League and Co-chair
of the Child Labor Coalition, presented a different perspective. She stressed the
safety hazard for persons, newly licensed to drive but lacking experience on the road,
who drive as part of their employment responsibilities. “Teenagers are at risk every
time they get behind the wheel,” she stated, citing accident statistics. The Insurance
Institute for Highway Safety “reports that the risk of crash involvement per mile
driven among drivers 16 to 19 years old is four times the risk among older drivers.
That risk is highest at age 16 and 17.” She presented similar statistics from the
National Institute for Occupational Safety and Health (NIOSH) and contended:
“Teenagers are inexperienced drivers. They should not be driving on the job.” While
the case of the National Automobile Dealers Association was the immediate topic,
the standard (HO 2), if weakened, could have broader implications: for example, if
a youth employed at a restaurant were asked to deliver a pizza to the home of a
customer — a type of work in which the pressure for rapid service is intense. Ms.
Golodner closed her oral testimony by urging Congress to “uphold safety standards38
in the face of industry demands to use cheap teenage labor.” The National
Consumers League, she affirmed, was “strongly opposed” to the Tate bill.39
Questioning from the Subcommittee was begun by Representative Ballenger.
The Washington State Auto Dealers Association had complained that enforcement
of HO 2 (the restriction of job-related teen driving) had been both unexpected and
retroactive. Mr. Ballenger queried: “... how retroactive was it?” Mr. Fitzpatrick
deferred to the Association’s executive vice president, Janet Ramble. Ms. Ramble
explained that the Department, aware that auto dealers hired large numbers of young
workers and demonstrating a renewed interest in compliance with child labor law,
had created “something called a strike force” and had targeted auto dealers. It
wasn’t, she conceded, that penalties had been imposed retroactively but, rather, that
the Department had unexpectedly increased its enforcement of a long existing
standard.40 In a press statement issued the day of the hearing, the National

37Hearing, op. cit., 1996. p. 16-18. In his prepared statement, Fitzpatrick denied that there
was any significant risk involved. “Before we hire anyone, including teenagers, for a
position in which they will do any driving, dealers thoroughly check the applicant’s driving
record. Applicants,” he continued, “with poor driving records are not hired. Lot attendants
are acutely aware they are entrusted with the company’s vehicles and that their jobs are on
the line if they drive carelessly. They are proud to accept the responsibility because it is a
significant step in becoming an adult.” (p. 22) He summarized his experience with the
Department of Labor as the kind of “overzealous enforcement that makes businesses and the
public lose faith in government.” (p. 23)
38Hearing, op. cit., 1996. p. 26-28.
39Hearing, op. cit., 1996. p. 29.
40Hearing, op. cit., 1996. p. 124. In her annual report for FY1988, Labor Secretary Ann
McLaughlin noted: “With an eye toward updating and improving administration of labor
standards that have been on the books for a long time, a Child Labor Advisory Committee

Automobile Dealers Association and the Washington State Auto Dealers Association41
reiterated their strong support for the Tate/Gorton legislation.
Meanwhile, those supporting modification of HO 2, growing impatient about
achieving direct amendment of the FLSA, sought action through an alternative
route: i.e., the appropriations process. In H.R. 3755, providing appropriations for the
Department of Labor, language had been added that would have prevented the
Department from spending funds for “enforcement or the issuance of fines” under
HO 2. Passed by the House, the language was stripped from the bill in the Senate,
though the legislation ultimately died at the close of the 104th Congress.
Action Taken by the 105th Congress
Auto dealers in Washington State, The New York Times reported in the spring
of 1998, “say it never occurred to them that they could be breaking the law by giving
part-time jobs to 16 and 17-year-olds.” And so, The Times added, the auto “dealers
came to Congress ... for a law that would supersede the [DOL] regulation.” Darlene
Adkins of the National Consumers League viewed the situation differently. “What
we’re seeing is this trend of employers, industries and associations getting penalized
for child labor violations . . . and instead of saying we need to fix this problem and42
comply with the law, they’re putting pressure on legislators to change the law.”
Committee Consideration in the House
On July 31, 1997, Representative Combest43 introduced H.R. 2327. The bill,
titled the “Drive for Teen Employment Act,” was considered and marked-up by the
Subcommittee on Workforce Protections, March 6, 1998. It was ordered reported
from the full Committee on Education and the Workforce on April 1.
During full Committee mark-up, Representative Fawell (a co-sponsor of H.R.
2327) argued that the departmental requirement “significantly restricts the ability of
teenagers to gain valuable experience in the workplace” and has “created confusion
for many businesses.” As a result, he stated, “there have been a number of
employers, primarily automobile dealerships, which have been fined thousands of

was established to review regulations on employment of minors. These regulations had
remained essentially unchanged for 50 years.” (p. 11) Ms. Ramble, for the automobile
dealers, argued that the Department had altered its approach to HO 2 but that it “didn’t notify
anyone that they had reinterpreted incidental and occasional to mean emergency only ... the
policy changed internally and they penalized people.”
41National Automobile Dealers Association, NADA News, September 12, 1996. 2 p.
42The New York Times, April 12, 1998. p. 17.
43Representative Tate was no longer a Member of Congress.

dollars for allowing teens to drive cars from one lot to another or to a nearby gas44
station for refueling.” He expressed his “strong support” for the measure.
Conversely, the bill was opposed by DOL. Secretary Alexis Herman, in a letter
of Committee Chairman Goodling, expressed concern “that the result of this
legislation may be an increase in the number of automobile-related injuries and
deaths caused by very young and inexperienced drivers on the job.” She noted that
many young persons in the targeted age group (16 to 17 years-of-age) “will have just
been licensed to drive” and, were the legislation adopted, would be spending “as
much as one-fifth of their workweek behind the wheel on public roads and
highways.” She stated that the option would not be limited to auto dealerships.
“Sixteen and 17-year old youths could be employed to deliver pizzas or to shuttle
passengers to and from hotels, for example, as long as they did not exceed the 20
percent limitation” — types of work she identified as “fast-paced” and “highly
competitive.” The Secretary concluded: “We believe that responsible public policy
dictates that any modifications to weaken child labor protections be carefully45
weighed against the potential harm to the health and safety of these young people.”
Floor Consideration in the House
On September 28, Representative Fawell moved to suspend the rules and to
bring H.R. 2327 to the floor. Through the legislative process, the earlier Kreidler
and Tate/Gorton and Combest bills had been expanded to include much of the
regulatory language that DOL had earlier developed (with certain other restrictive
provisions). As called up for floor action, H.R. 2327 presented two general thrusts.
First. It provided that, under the child labor provisions of the FLSA, “employees
who are under 17 years of age may not drive automobiles or trucks on public
roadways.” Thus, the discretion of the Department of Labor in establishing
conditions under which 16-year-olds might drive was eliminated, a decision that
strengthened the child labor protections of the Act. Second. Occupational driving
by 17-year-olds was permitted only if certain conditions were met. These included:
(A) such operation is restricted to daylight hours;
(B) the employee holds a State license valid for the type of driving
involved in the job performed and has no record of any moving violation
at the time of hire;
(C) the employee has successfully completed a State approved driver
education course;
(D) the automobile or truck is equipped with a seat belt for the driver
and any passengers and the employee’s employer has instructed the

44Statement of Representative Harris Fawell at mark-up of H.R. 2327, April 1, 1998.
45Secretary of Labor, Alexis N. Herman to Representative William F. Goodling, March 31,
1998. In 1990, the House Committee on Government Operations, Subcommittee on
Employment and Housing, had conducted several hearings on child labor and DOL’s
enforcement/compliance policy, and these had included review of the use of young persons
for pizza delivery. See: Bureau of National Affairs, Daily Labor Report, March 19, 1990.
p. A16-18; and U.S. Congress. House. Committee on Government Operations,
Subcommittee on Employment and Housing. Children at Risk in the Workplace. Hearings,stnd

101 Cong., 2 Sess., March 16 and June 8, 1990. 356 p. .

employee that the seat belts must be used when driving the automobile or
(E) the automobile or truck does not exceed 6,000 pounds of gross
vehicle weight;
(F) such driving does not involve—
(i) the towing of vehicles;
(ii) route deliveries or route sales;
(iii) the transportation for hire of property, goods, or
(iv) urgent, time-sensitive deliveries;
(v) more than 2 trips away from the primary place of
employment in any single day for the purpose of delivering
goods of the employee’s employer to a customer (other than
urgent, time-sensitive deliveries);
(vi) more than 2 trips away from the primary place of
employment in a single day for the purpose of transporting
passengers (other than employees of the employer);
(vii) transporting more than 3 passengers (including
employees of the employer); or
(viii) driving beyond a 30 mile radius from the employee’s
place of employment; and
(G) such driving is only occasional and incidental to the employee’s
For purposes of subparagraph (G), the term `occasional and
incidental’ is no more than one-third of an employee’s worktime in any
workday and no more than 20 percent of an employee’s worktime in any
The proposed language added the provision that “the term `occasional and
incidental’ shall apply to all pending cases, actions, or citations in which a final
judgment has not been entered, except that it shall not apply to any case, action, or
citation involving property damage or personal injury.” Thus, certain pending cases,46
flowing from prior DOL enforcement actions, would be voided.
The legislation, Representative Fawell explained, was basically a response to
what was perceived to have been inconsistent DOL policy. He recalled that the
“current interpretation” of DOL regulations had resulted in “enforcement actions

46Congressional Record, September 28, 1998. P. H9124-H9125. Various provisions had
been under discussion over the years. In H.R. 1106 of the 103rd Congress, Representative
Lantos, while recognizing the need for some driving by youth workers, would have set the
age limit at 17 years while requiring that occupational driving “be limited to 20 percent of
the minor’s work in any workday and may not exceed 5 percent of the minor’s work in any
workweek.” Again, on September 12, 1996, Representative Green of Texas had written to
Subcommittee Chairman Ballenger suggesting the following changes in the Tate Bill: “(1)
limit to one-third, the time a minor is allowed to operate an automobile; and (2) limit to a 50
mile radius, the distance a minor is allowed to operate an automobile.”
In the Senate, the language dealing with the effective date and retroactive immunity
would be subjected to technical amendment while retaining its substance. See Congressional
Record, October 12, 1998. p. S12397.

against certain employers who had no advance notice” of what the Department’s
policy was. He opined:
Not only is the department’s current interpretation not consistent with
the regulation itself, but it has had the effect of denying important job
opportunities for teenagers without any demonstrated increase in safety.
As a result, innocent small business owners have been fined by the
Department of Labor on the basis of an interpretation of a regulation of
which they did not even have notice.
Representative Fawell reviewed the legislation that the Committee had marked-up,
noting that subsequent negotiations between the sponsors of the bill and the
Department had resulted in compromise language (quoted above) which was more47
protective of youth workers than the original proposal.
Representative Ford termed the compromise “bipartisan” and commended the
various advocates of protection for young workers for their insights and persistence
which had resulted in legislation “addressing many of the legitimate concerns” that
had been raised. He took note of the high accident rate associated with younger
drivers, observed that while 16-year-olds would no longer be allowed to engage in
occupational driving at all, the regulations governing such activity on the part of 17-
year-olds had been strengthened. Mr. Ford terms the result “a sensible balance.”48
As debate continued, the focus returned to the specific case of the automobile
dealers. “There are many young people, male and female, who have gotten their start
working part-time at an auto dealership,” Representative Andrews observed.
“Frankly, if the young person is not permitted to drive on occasion, his or her value
to the auto dealer as an employer is rather diminished.” The bill, Mr. Andrews
argued, “is really a youth employment bill.”49 Representative Blumenauer, taking
a regional focus, pointed to the auto dealers of the Pacific Northwest, “pretty
straight-ahead folks, good public citizens and easy to work with,” upon whom had
been imposed “over $200,000 in fines” for violation of child labor requirements.
“The process by which the new rule was adopted I think was bad; the fines were
worse.” But, like Mr. Andrews, he emphasized the youth employment impact: the
loss of jobs by teenagers deprived of the option of occupational driving. “These
were jobs that gave young people the opportunity to earn money and gain career-50
building experience,” Mr. Blumenauer stated.
Representative Green, an early sponsor of legislation to revise the requirements
affecting occupational driving by teens, applauded the “clear definition” of the
“limited driving” allowed by the bill and pointed to the “clear guidelines for
employers” who hire such workers. His fellow Texan, Mr. Combest, affirmed a long
interest “in reforming regulations that do not pass what I call `The Stupid Test.’ I
believe,” he added, “the teen driver regulation is a poster child for failing `The

47Congressional Record, September 28, 1998. p. H9125.
48Congressional Record, September 28, 1998. p. H9125-H9126.
49Congressional Record, September 28, 1998. p. H9126.
50Congressional Record, September 28, 1998. p. H9126.

Stupid Test.’” Like Representative Blumenauer, Mr. Combest pointed to what he
viewed as a flawed rulemaking system at DOL.
... the Department of Labor made a major regulatory change in the
working definition of what incidental and occasional meant for licensed
16 and 17 year olds driving in the workplace. ... The Department did this
with no formal rule making and without informing any small businesses.
Businesses first learned of the change when they received fines for non-
Representative Combest affirmed that, as sponsors of the legislation, “[w]e simply51
seek to bring a clearer, more reasonable standard for workers and business....”
No Members appeared in opposition to the legislation which was adopted on a
voice vote.52
Senate Action and Final Passage
H.R. 2327 arrived in the Senate on October 1, 1998. On October 12, Senator
Jeffords, chair of the Committee on Labor and Human Resources, sought unanimous
consent to have the bill brought up for immediate consideration. He also proposed
a technical amendment that altered the wording (but not the substance) of the
provision dealing with the effective date and with retroactive immunity for
employers against whom fines had been imposed. Without objection and without53
debate, the measure was approved.
The amended bill was returned to the House On October 13.54 Later that
afternoon, following a brief discussion by proponents of the measure, the Senate
amendment was accepted by a voice vote; the bill was passed.55 On October 31,

1998, the legislation was signed by the President.

51Congressional Record, September 28, 1998. p. H9127. Representative Combest noted that
the legislation “has been endorsed by the National Small Business United, National
Automobile Dealers Association, National Community Pharmacists Association and the
National Association of Minority Automobile Dealers..”
52Congressional Record, September 28, 1998. p. H9127.
53Congressional Record, October 12, 1998. p. S12397-S12398.
54Congressional Record, October 13, 1998. p. H10717.
55Congressional Record, October 13, 1998. p. H10796-H10798.

Some General Considerations
As signed into law, H.R. 2327 (P.L. 105-334) appears to have been a product
of compromise; some regarded it as “noncontroversial.”56 That it was considered,
both in the House and in the Senate under unanimous consent and without a recorded
vote might confirm that assessment. However, a number of questions may still arise
as the statute is implemented.
Rulemaking -vs- Legislation
Development of standards under which young persons, new to the world-of-
work, may be safely employed is a complicated undertaking. Initially, in 1938,
Congress established a broad framework for such regulation and left its fine-tuning
to the Secretary of Labor. Through the years, the Secretary has dealt with that issue
through the rulemaking process: i.e., suggesting a policy, publishing a proposed
regulation, inviting comment, and, after extended evaluation, publishing a final rule.
Such a rule could then be further modified, if necessary, through the same process.
Even when the regular rulemaking process is followed scrupulously (which it
may not have been in the case of the teen drivers), the result can be time consuming
and frustrating. A general review of federal child labor regulation commenced early
in the Reagan Administration and concluded without achieving its putative intent:
i.e., the existing regulations were neither changed nor affirmed to be appropriate.
Then, late in the Reagan Administration, the Department created a special Child
Labor Advisory Committee which conferred and consulted into the Bush
Administration and expired by the time the Clinton Administration came into office.
In 1994, under Secretary Reich, the Department commenced another general review
of the federal regulation of child labor — a process that is ongoing.
It may be that the DOL regards the existing child labor regulations that it has
developed (including HO 2) as functioning well and without need of major change.
But, in the enforcement of existing child labor regulations, some have argued that
DOL has been neither precise, clear nor consistent — a position voiced with some
vigor by the automobile dealers associations. At the same time, some proponents of
the regulation believe that it is inappropriate to weaken the system of hazardous
occupations orders over issues that are essentially administrative. The precise
restriction of employment of youth workers within the context of a sometimes
rapidly changing workplace, some might argue, may lend itself more nearly to
regulation than to statute.
In the case of young persons employed by Pacific Northwest automobile dealers
(who drove as a part of that employment), it would appear that the system was not
entirely responsive. As the issue emerged, the Washington automobile dealers called
upon the Secretary to reexamine the existing regulations. At least in part, the
automobile dealers suggested that there had been a failure of communication
between the Department and employers: that internal interpretive changes in policy

56Congressional Record, October 13, 1998. p. H10797.

had not been made known, effectively, to the auto dealerships prior to enhanced57
enforcement initiatives.
In March 1994, Senator Gorton (with nine House Members from Washington)
had sought Secretary Reich’s “intervention to prevent an injustice against a large
number of auto dealers in Washington state who are unintentionally at odds with an
undefined Department of Labor regulation.” The letter stated that the Senator and
the signatory Members had been advised by the auto dealers:
... no one from the Department of Labor has ever communicated to them
an interpretation of “incidental and occasional” driving that is at odds with
this [contested] practice. In fact, it was only during the current compliance
audit that the dealers first learned of an internal Department of Labor
interpretation meaning driving only in an emergency and/or not more than
once or twice per year, an interpretation found nowhere in law or
Mr. Secretary, we believe that the vast majority of auto dealers in our
state have sincerely attempted to comply with the law and regulation as
they are written. They have reviewed the law and the regulation; they
have consulted their national and state trade associations on compliance
It affirmed: “... we share their frustration that they are being penalized for violating
a phrase which the Department has been unable to define in its own regulations.”58
In retrospect, it appears, DOL would have preferred an administrative solution
in the HO 2 case. In a September 12, 1996, letter to Chairman Ballenger of the
Subcommittee on Workplace Protections, Secretary Reich reviewed the
Department’s opposition to the Tate bill and concluded that DOL “... believes that
these issues should be dealt with through the rulemaking process.”59 In a March 31,
1998, letter to Chairman Goodling of the Committee on Education and the
Workforce, Secretary Herman expressed the same view: “As a general matter, it is
preferable to address such issues through notice and comment rulemaking rather than
legislation.”60 But,
some employers and Members of Congress may have lost confidence in the agency
rulemaking option. Litigation continued with respect to past violators — perhaps not
an insignificant matter. Therefore, direct legislative involvement resulted.
The Impact For Future Rulemaking?
During hearings on another aspect of the FLSA, the former chair of the Senate
Committee on Labor and Human Resources, Senator Kassebaum (R-Kansas), opined

57Hearing, op cit., 1996. p. 124.
58Senator Slate Gorton, et al., to Secretary of Labor Robert B. Reich, March 9, 1994.
59Secretary of Labor Robert B. Reich to Representative Cass Ballenger, September 12, 1996.
60Secretary of Labor Alexis Herman to Representative William Goodling, March 31, 1998.

that “what was once a simple process has given rise to a confusing maze of rules and61
regulations about how the law should be applied in each workplace.” That “maze
of rules and regulations,” however, did not develop spontaneously. Rather, they
have resulted from the form and structure of the legislation DOL was asked to
As development of H.R. 2327 proceeded, some questioned whether the
legislation was practical: i.e., were its terms sufficiently precise. The impetus for the
teen driver bill, after all, had stemmed, at least in part, from DOL’s interpretation of
the language of existing regulations. But, even with explicit definitions, interpretive
questions may well arise. Some may be rooted in unforeseen circumstances.
For example, if a youth were on the road at dusk (a 30 mile radius is allowed)
and drove back after dark to his employer’s establishment, would that be a
violation? His operation of the vehicle is permitted only during daylight hours.
Further, P.L. 105-334 requires that only “one-third of an employee’s worktime in any
workday” may be given over to driving: similarly, “no more than 20 percent of an
employee’s worktime in any workweek.” If a youthful driver were 25 miles from her
place of employment, caught in a traffic jam, and her third of a workday expired
before she returned to her place of business, has a violation occurred? At a
minimum, such situations seem to imply the need for very careful planning in the
utilization of one’s workforce, and for equally careful record keeping and
compliance inspection. Must the employer review time sheets for youth workers,
assess length of likely travel time (including any mishap), and then send out only a
driver with undeniably ample time to complete the trip/errand before expiration of
her third of a workday — and early enough to avoid darkness, however defined?62
Such contingencies may need to be dealt with in regulations or opinion letters
developed by DOL: regulations as free as possible from ambiguity so that they are
clearly and easily understood by employers, workers, and departmental compliance
staff. Each nuance of policy (each regulatory provision) could provide an occasion,
were enforcement strict, for sanctions. Judgment will be required both in
development and implementation of the regulations for administering P.L. 105-334.
On such issues, there may well be disagreement and, thus, some measure of dispute
may continue even in the wake of congressional action.
The Safety Factor
Little may be expected from most 17 year-old workers in the way of prior
training or skill. However, in the context of P.L. 105-334, there is one critical skill
that such workers must possess: i.e., the ability to drive. The question remains as to
how safely such teen workers may drive. Are young persons, for whatever reasons,
more likely to experience risks in the workplace than older persons?

61U.S. Congress. Senate. Committee on Labor and Human Resources. Oversight of the
Fair Labor Standards Act. Hearings. 104th Cong., 2nd Sess., February 27, 1996. p. 1.
62A youth worker would still be subject to workhours limitations during periods when
school was in session as well as some variation depending upon whether the workday was
immediately prior to a school day — factors further complicating employer calculations.

In the state of Washington, where the issue of teen drivers seems initially to
have surfaced, an analysis for the period 1988-1991 found that 16 and 17 year-olds
appear to have an overall work-related injury rate “more than three times greater than
for adults for each hour worked.”63 Within the 16- to 17-year-old cohort, it was
found that “the injury rate for males is almost two times greater than that for
females.” The report speculated that the higher rate of injury among males might
result from a propensity for males to “work in more hazardous jobs” and to “exhibit64
more risk-taking or reckless behavior.” Speaking generally, the report suggested
that “adolescents are a high-risk group for occupational injury” and explained:
This increased risk is due to the differences between adults and
adolescents in development, size, maturity, experience, and judgment.
Risk-taking behavior is a typical characteristic of adolescence [sic.] as
they explore their capabilities but often lack perception of their limitations
and vulnerability. In a workplace setting, teens may not feel capable of
refusing to do a task that is inappropriate or dangerous, especially if a
desire exists to be treated more like and adult than a child.
And, the report added: “They may also believe that they would not be asked to do65
something if it is considered dangerous.”
When, in 1990, Secretary Dole published the proposed rule dealing, inter alia,
with HO 2, the Advisory Committee had “recommended that there be no exemption
from the age restraints because, among other concerns, “16- and 17-year-old drivers
lack experience, maturity and have poorer judgment than adults” and, further, that
“[i]n comparison to adult drivers, 16- and 17-year-old minors generally have more
accidents per million miles and per driver.” The Department observed, based upon
data from the National Transportation Safety Board: “The accident rate per million
miles for 16- and 17-year-old drivers was 12.7 for 1982-83, 14.0 for 1983-84, and
13.2 for 1984-85. The accident rate per million miles for 18-year-old and older
drivers was 8.1, 10.0, and 9.2.”66
More recently, the Insurance Institute for Highway Safety observed that while
the “overall driver death rate [not accident rate] declined during 1975-96 from 15 to
12 per 100,000 licensed drivers,” that for 16-year-olds “was trending upward.” The
Institute stated: “The rate increased among 16-year-old drivers from 19 per 100,000
in 1975 to 35 per 100,000 licensed drives in 1996, and the increase occurred among
both males and females.” Conversely, the death rate among older teens has been
declining slightly. “Data aren’t available to assess why the death rate for the
youngest drivers is going up while rates are trending down among older drivers, even
older teenagers.” Institute Vice President Allan Williams offers what he terms the

63State of Washington, Department of Labor and Industries. Occupational Injuries Among
Adolescents in Washington State, 1988-1991. Technical Report Number 35-1-1995.
Olympia, March 1995. p. vii and 43. The data have been adjusted to take into account the
difference in the number of regular work hours between adolescents and adults
64Ibid., p. 37.
65Ibid., p. 1.
66Federal Register, October 23, 1990. p. 42813.

“most plausible hypothesis ... that 16 year-olds are driving more in high-risk
circumstances.” And, he adds: “Maybe 16 year-olds are getting easier access to cars
than they used to....” The Institute concluded that restrictions on driving by teens
ought to be increased and urged a system of graduated licensing as has been adopted67
in a number of jurisdictions.
Through the years, the data may vary somewhat (as they may from one agency
to another, depending upon methodology), but the general pattern appears consistent.
Younger, less experienced drivers have relatively high accident rates. Where driving
on public roads or in other public areas is concerned, some have argued, the bottom
line “must be safety — the safety of our children and of all of us who travel on68
public thoroughfares.”
The Department of Labor, responding to its mandate from the Congress, has
emphasized the safety factor, requiring that where young persons are expected to
drive as part of their work obligation, that requirement should not be more than
“occasional and incidental,” should be strictly of a limited nature, and should not be
a preferred activity.
Others, not wholly in disagreement, have suggested that the market may provide
its own protection. It might be argued that employers, with expensive equipment and
insurance obligations, have a vested interest in safe driving practices on the part of
their staff. “There are some of my colleagues who will say that this legislation will
endanger teenagers,” observed Representative Fawell, an active supporter of H.R.

2327. “But the fact of the matter is that teens do drive and they are safer when69

driving at work with these restrictions, than they would be outside of work.”
67Statement released by the Virginia-based Insurance Institute for Highway Safety, April 14,

1998. The Institute pointed out that, since 1996, six states (California, Florida, Georgia,

Michigan, North Carolina, and Ohio) “have adopted programs that include essential elements
of graduated licensing. Such elements include six months or more in a learning phase,
during which supervision is required. Then there’s another six months to a year in an
intermediate licensing phase, during which unsupervised driving isn’t allowed in high-risk
situations....” But, Williams concluded, “the majority of states still allow quick and easy
access to licenses.”
68Hearings, op. cit., 1996. p. 29-30. A recent study, Protecting Youth at Work (Washington,
National Academy Press, 1998), pages 4, 82 and 105, suggests that just over 24% of work-
related deaths for 16 and 17-year-olds were associated with motor vehicles.
69Opening Statement, Representative Fawell, Committee on Education and the Workforce,
April 1, 1998. Emphasis in the original.