Child Labor in America: History, Policy and Legislative Issues
Child Labor in America:
History, Policy, and Legislative Issues
Updated October 24, 2008
Analyst in Labor Policy
Domestic Social Policy Division
Child Labor in America:
History, Policy, and Legislative Issues
The history of child labor in America is long and, in some cases, unsavory. It
dates back to the founding of the United States. Traditionally, most children, except
for the privileged few, had always worked — either for their parents or for an outside
employer. Through the years, however, child labor practices have changed. So have
the benefits and risks associated with employment of children. In some respects,
altered workplace technology has served to make work easier and less hazardous. At
the same time, some processes and equipment have rendered the workplace more
dangerous, especially for children and youth.
Child labor first became a federal legislative issue at least as far back as 1906
with the introduction of the Beveridge proposal for regulation of the types of work
in which children might be engaged. Although the 1906 legislation was not adopted,
it led to extended study of the conditions under which children were employed or
allowed to work and to a series of legislative proposals — some approved, others
defeated or overturned by the courts — culminating in the Fair Labor Standards Act
(FLSA) of 1938. The latter statute, amended periodically, remains the primary
federal law dealing with the employment of children.
Although providing a framework for regulation of child labor (and, in some
cases, forbidding it entirely), the FLSA is not comprehensive, nor does it deal with
all employment of children in precisely the same way. Generally speaking, work by
young persons (under 18 years of age) in mines and factories is not allowed. The
types of nonfarm work that may be suitable (or especially hazardous) for persons
under 18 years of age has been left mainly to the discretion of the Secretary of Labor.
Some types of work — for example, some newspaper sales and delivery, theatrical
(and related) employment — fall beyond the scope of FLSA child labor requirements.
Finally, a distinction has been made between employment in nonagricultural fields
and in agriculture and, in the latter case, between work for a parent or guardian in an
agricultural setting and commercial employment.
In the 110th Congress, a range of child labor legislation has been introduced.
Legislation was enacted that imposes greater civil penalties on employers who violate
the child labor provisions of the FLSA.
This report examines, briefly, the historical issue of child labor in America. It
looks at various bills that have been introduced in the 108th, 109th, and 110th
Congresses. It will be updated as developments warrant.
Early Child Labor in America........................................2
Opposition to Child Labor Begins to Organize.......................3
The Early Federal Role in Child Labor Regulation....................4
The Child Labor Initiatives (1916-1924)........................5
Early New Deal Enactments (1933-1937).......................6
The FLSA and General Child Labor Regulation (1938)............7
Child Labor Under the Fair Labor Standards Act.........................9
The Basic Pattern of Coverage....................................9
Hazardous Occupations Orders..................................12
Re-Emergence of the Child Labor Issue (1982-2000).....................13
The Reagan-Era Initiatives......................................15
Controversies and Changes of Law...............................17
The “Bat Boy” Issue.......................................18
Paper Balers and Compactors...............................19
Work-Related Operation of Motor Vehicles....................20
Child Labor Initiatives During the 108th Congress.......................21
The Traveling Sales Crew Protection Act..........................21
Some Questions of Public Policy.............................21
The Wyden Initiative......................................22
The Kohl Proposals.......................................23
Sawmilling/Woodworking by 14-Year-Olds........................24
A Question of Public Policy................................24
Taking the Issue to Congress................................25th
Revived in the 108 Congress...............................27
Amish Child Workers and the 2004 Appropriations Bill..........29
Child Labor Initiatives During the 109th Congress.......................30
Protecting Child Models.......................................31
Young American Workers’ Bill of Rights..........................31
The CARE Act of 2005........................................34
The Safe at Work Act.........................................34
Child Labor Initiatives During the 110th Congress.......................35
The Child Labor Protection Act of 2007...........................35
The CARE Act of 2007........................................36
The Child Labor Safety Act.....................................36
List of Tables
Table 1. Summary of Child Labor Regulation Under the Fair Labor
Table 2. Hazardous Occupations Orders Issued by the Secretary of Labor:
Work Generally Unsuitable for Certain Young Persons...............12
Table 3. Hazardous Occupations Orders Issued by the Secretary of Labor:
Work Unsuitable for Young Persons Under 16 Years of Age Employed
Table 4. Child Labor Proposals of the 109 Congress....................30
Table 5. Child Labor Proposals of the 110th Congress....................37
Child Labor in America:
History, Policy, and Legislative Issues
Efforts to regulate (or to prohibit) certain forms of child labor in America
largely commenced late in the 19th century, mostly at the state level.1 During the first
decade of the 20th century, child labor became a federal concern. Congressional
hearings were followed by extensive study of the issue — and by several
unsuccessful efforts to deal with child labor through law. Finally, with the adoption
of the Fair Labor Standards Act (FLSA) of 1938, the modern federal role in child
labor regulation took shape. But, debate concerning the issue has continued in
Through the years, regulation of child labor has been contentious, sparking
sharp differences of opinion. Some have urged modification of existing federal child
labor restraints to afford greater opportunities for young persons to learn the value
of work or to gain entry into a skilled occupation. But, the opportunity to learn a
craft and industrial discipline can also provide an occasion for youth to be exploited
and, possibly, endangered. Some have questioned whether young children ought to
be employed at all, especially while attending school.
Discussion of child labor would seem to suggest trade-offs, resting upon
fundamental socioeconomic philosophy and the value one places upon time. For
example, when is child labor a healthy and useful introduction to the world-of-work?
And, when might it divert young persons from academic work or place them at
physical (or psychological) risk? Do children (however defined) need time for their
own purposes and, if so, how much time? How might one distinguish between
freedom (to play, think, or associate informally with peers) and idleness that may be
conducive to activities that may be less wholesome than some types of work? Is
some work suitable for young children and teenagers (persons less than 18 years of
age) and, if so, how might suitable work be distinguished from work that is not
suitable or that is “particularly hazardous” for persons of that age?
The history of child labor in American workplaces can be divided, roughly, into
four periods. First, from the late 19th century to 1941, reformers sought to remove
children from the workplace (whether factory, field, or tenement house) and to
encourage more extended school attendance. Second, with World War II, the focus
shifted to alleged labor shortages for war production. Some urged modification of
work restrictions for older children: too young for the draft but old enough to be
1 This report is an update of a CRS report originally written by William G. Whittaker.
2 This report outlines the basic parameters of the child labor issue. For an authoritative
statement of the child labor requirements under the Fair Labor Standards Act, consult 29
C.F.R. Part 570.
useful employees. Third, by the late 1940s, another shift took place. Too many older
youths were believed to be out of school, out of work, and unable to find employment
for which, it was argued, they were often unprepared both in terms of training and
discipline. Thus, various “school-to-work” transition programs were developed
together with “incentives” for employers to hire youth workers. Fourth, since
roughly the late 1980s, child labor in its various aspects has largely disappeared from
the policy scene; the issue is often viewed as a remnant of an earlier and darker
period in American history.
This report is intended as an introduction to the issue of child labor. It briefly
describes the early history of child labor regulation, reviews recent federal initiatives
in that area, and discusses concerns voiced through the 110th Congress.
Early Child Labor in America
Prior to the 20th century, employment of children largely reflected
socioeconomic class stratification. Where children were of working-class families,
it was largely assumed that they would work — even when they were very young.
Some were employed in the street trades: delivering newspapers and telegrams,
shining boots and shoes, running errands in various (often, unwholesome) sections
of the city, and at whatever hours the task demanded. Others were engaged in
industrial homework: in tasks often reserved for the very young who could work,
usually alongside a parent or another adult, in a tenement flat in segments of garment
production or in other types of work that could be performed, sometimes on a piece
rate basis, in one’s place of residence. Still others worked in mines or factories:
most notoriously, perhaps, the “breaker boys” (who separated coal from slate and
rock) in the coal mines, the child workers in the textile mills, and the helpers in the
Agricultural labor by children seems always to have been in a category by itself.th
Usually, until the early 20 century, such work seems to have been on the family
farm (whatever its size) or in an agricultural operation in the general vicinity of a
youth’s place of residence, though he (or she) might reside and work beyond the view
and reach of a parent. Such work was no less hazardous — and no less arduous —
than that of the streets or tenement or industrial labor. Indeed, in some respects,
agricultural work may have been more dangerous.
Regulation of child labor has been motivated by diverse concerns: economic,thth
humane, and more broadly social. In the 19 and early 20 centuries, child workers
were often viewed as an alternative source of low-wage labor who vied with their
parents and other adults for employment — even at the cost of their own health and
education. Products of child labor competed with goods produced by adults, exerting
a downward pressure on wages and living standards. Aside from health and safety
hazards, inadequate rest, it was argued, left children ill-suited for educational
activities and, in turn, as adults, ill-prepared for employment or for the support of
their own children, thus extending the cycle of poverty and adding to social-welfare
Opposition to Child Labor Begins to Organize
The trade union movement early voiced strong opposition to child labor. New
York labor activist Samuel Gompers championed child labor reform during the late
19th century and later, as president of the American Federation of Labor (AFL), used
his influence to improve the lot of working children.4 Worker’s advocate “Mother”
(Mary Harris) Jones brought added visibility to the plight of child workers and to that
of their parents as well.5 After its organization in 1899, the National Consumers
League (NCL), under the leadership of Florence Kelley, took up the campaign against
child labor as did a significant body of social workers, clergy, and concerned
individuals.6 In 1904, these forces were drawn together with the establishment of the
3 An extensive literature exists on child labor in America during the late 19th and early 20th
centuries. See, for example Edward N. Clopper, Child Labor in the City Streets (New York:
The Macmillan Company, 1912); Katharine DuPre Lumpkin, and Dorothy Wolff Douglas,
Child Workers in America (New York: Robert M. McBride & Company, 1937); Edwin
Markham, Benjamin B. Lindsey, and George Creel, Children In Bondage (New York:
Hearst’s International Library Co., 1914); John Spargo, The Bitter Cry of the Children (New
York: The Macmillan Company, 1906); and John William Larner, Jr., “The Glass House
Boys: Child Labor Conditions in Pittsburgh’s Glass Factories, 1890-1917,” The Western
Pennsylvania Historical Magazine, October 1965, pp. 355-364.
4 Robert H. Bremner, From the Depths: The Discovery of Poverty in the United States (New
York: New York University Press, 1964). Page 218 notes: “The labor unions had been
active in the [child labor] movement since the days of the Knights of Labor in the 1880’s,
and Gompers only slightly exaggerated the facts when he declared [in 1906]: ‘There is not
a child labor law on the statute books of the United States but has been put there by the
efforts of the trade-union movement.’” But, he added: “It is unlikely ... that the campaign
against child labor would have made such rapid headway after 1900 had it not been for the
pressure brought to bear on both public opinion and legislatures by voluntary groups such
as the consumers’ leagues, state charities aid associations, federations of women’s clubs,
and the child-labor committees.” See also Samuel Gompers, Labor and the Common
Welfare (New York: E. P. Dutton & Company, 1919), p. 129; Jeremy P. Felt, Hostages of
Fortune: Child Labor Reform in New York State (Syracuse: Syracuse University Press,
1965), pp. 10-13, 60, and 196-197; and Roger W. Walker, “The A.F.L. and Child-Labor
Legislation: An Exercise in Frustration,” Labor History, summer 1970, pp. 323-340.
5 Mary Field Parton (ed.), The Autobiography of Mother Jones (Chicago: Charles H. Kerr
Publishing Company, 1980), pp. 71-83, 118-131.
6 Concerning the work of the National Consumers’ League, see Josephine Goldmark,
Impatient Crusader (Urbana: University of Illinois Press, 1953), a biography of Florence
Kelley; Kathryn K. Sklar, Florence Kelley and the Nation’s Work, (New Haven: Yale
University Press, 1995); and Landon R. Y. Storrs, Civilizing Capitalism: The National
Consumers’ League, Women’s Activism, and Labor Standards in the New Deal Era (Chapel
Hill: University of North Carolina Press, 2000). (Hereafter cited as Storrs, Civilizing
National Child Labor Committee (NCLC) which, thereafter, would remain a central
force in the movement to end exploitation of children in the workplace.7
Child labor regulation generally commenced at the state level. Early laws were
experimental, loosely drawn, and, where they exerted a restraining influence, subject
to court challenge. Each type of work by children — for example, in the mines,
factories, fields, or street trades — presented its own special challenges for
reformers; but, industrial homework by children was especially difficult to restrain.
Although often not formally employed, children worked in tenement sweatshops
making clothing, processing food, and engaging in whatever other work might
profitably be conducted at home. Any tenement might become a little factory where
conditions were adverse (often, effectively unregulated) and hours of work were
unrestrained except by exhaustion. Thus, child labor and industrial homework, from
a regulatory/reform perspective, became intermeshed. Reformers tended to agree that
child labor could not be controlled while industrial homework continued: that
regulation of the latter, per se, would never be successful. A total ban on the system,
they said, was needed.8
Reformers, however, did not always agree on timing or overall strategy. Most
seem to have concurred that, ultimately, reform would need to be federal. Faced with
state regulation of child labor or industrial homework, employers could simply move
to another state. Further, those who utilized child labor could play one jurisdiction
against another in terms of wage-based economic development. For labor standards,
it was a race to the bottom. At the same time, the strength of reform organization
varied from one state to another. Some believed that state action was more nearly
feasible than securing broader national change, at least at that time.
The Early Federal Role in Child Labor Regulation
In 1906, Senator Albert Beveridge (R-IN) and Representative Herbert Parsons
(R-NY) introduced legislation to prevent employment of children in factories and
mines. Debate on this first federal initiative continued through several years but it
did not become law. However, with the work of the various reform groups, the
proposal raised the visibility of child labor as a public policy issue.9 In 1907,
7 Walter I. Trattner, Crusade for the Children: A History of the National Child Labor
Committee and Child Labor Reform in America (Chicago: Quadrangle Books, 1970).
(Hereafter cited as Trattner, Crusade for the Children.) For a discussion of the politics of
child labor reform during this early period, see Hugh C. Bailey, Edgar Gardner Murphy:
Gentle Progressive (Coral Gables: University of Miami Press, 1968), pp. 65-108; and
Herbert J. Doherty, Jr., “Alexander J. McKelway: Preacher to Progressive,” Journal of
Southern History, May 1958, pp. 177-190.
8 Ruth E. Shallcross, Industrial Homework: An Analysis of Homework Regulations, Here
and Abroad (New York: Industrial Affairs Publishing Co., 1939); Eileen Boris, Home to
Work: Motherhood and the Politics of Industrial Homework in the United States (New
York: Cambridge University Press, 1994); and Ruth Crawford, “Development and Control
of Industrial Homework,” Monthly Labor Review, June 1944, pp. 1145-1158.
9 John Braeman, “Albert J. Beveridge and the First National Child Labor Bill,” Indiana
legislation was approved (P.L. 59-41) which authorized the Secretary of Commerce
and Labor (then, a single department) “to investigate and report upon the industrial,
social, moral, education[al], and physical condition of woman and child workers in
the United States.” The result was a detailed survey which appeared in 19 volumes
between 1910 and 1913.10 Building from that evidentiary record, Congress turned
again to the legislative process to deal with child labor and related problems.
The Child Labor Initiatives (1916-1924). Although Congress and the
advocates of reform sought to limit exploitive/oppressive child labor, the best
approach was not immediately clear. Thus, sequentially, Congress moved in three
directions — each uniformly unsuccessful.
In 1916, a decade after the Beveridge proposal, new federal child labor
legislation was introduced by Senator Robert Owen (D-OK) and by Representative
Edward Keating (D-CO) with support from the reform community. A regional
struggle then in progress pitted one state against another in a contest for economic
growth with low-wage nonunion labor a bargaining chip. Southern manufacturers
viewed child labor restriction as an “effort of northern agitators to kill the infant11
industries of the south.” The Owen-Keating Act (1916), based on the commerce
clause of the Constitution, sought to ban movement in interstate commerce of certain
products of child labor. In June 1918, however, the Supreme Court declared the act
unconstitutional (Hammer v. Dagenhart, 247 U.S. 251), and reformers searched for12
a new approach.
Congress next turned to the taxing power as an indirect method for controlling
child labor. Senator Atlee Pomerene (D-OH) proposed to levy a 10% tax “on the
annual net profits of industries” that employed children in violation of certain age and
hours standards.13 The tax penalty would offset any competitive advantage that child
labor might otherwise provide. Although the measure was in reality child labor
legislation, it was hoped that it might secure Court approval. The Supreme Court
Magazine of History, March 1964, pp. 1-36.
10 U.S. Congress, Senate, 61st Cong., 2nd sess., Document No. 645. Report on Condition of
Woman and Child Wage-Earners in the United States, 19 Volumes, Washington, U.S. GPO,
1913. See also U.S. Department of Labor, Bureau of Labor Statistics, Women in Industry
Series No. 5, Summary of the Report on Condition of Woman and Child Wage Earners in
the United States, Washington, GPO, 1916, 445 p.
11 Grace Abbott, “Federal Regulation of Child Labor, 1906-1938,” The Social Service
Review, September 1939, p. 411. (Hereafter cited as Abbott, Federal Regulation of Child
12 Trattner, Crusade for the Children, pp. 119-138. See also Edward Keating, The
Gentleman from Colorado: A Memoir (Denver: Sage Books, 1964), pp. 349-355; Lawrence
R. Berger, and S. Ryan Johannson, “Child Health in the Workplace: The supreme Court in
Hammer v. Dagenhart (1918),” Journal of Health Politics, Policy and Law, spring 1980,
pp. 81-97; Arden J. Lea, “Cotton Textiles and the Federal Child Labor Act of 1916,” Labor
History, fall 1975, pp. 485-494; and Walter I. Trattner, “The First Federal Child Labor Law
(1916),” Social Science Quarterly, December 1969, pp. 507-524.
13 Abbott, Federal Regulation of Child Labor, p. 416.
demurred and the Pomerene (child labor tax) Act (1919) was declared
unconstitutional in May 1922 (Bailey v. Drexel Furniture Company, 259 U.S. 20).14
In the wake of the Drexel case, Samuel Gompers met at AFL headquarters with
Florence Kelley of the National Consumers League, representatives of the NCLC,
and others. After extended discussion and a weighing of options, the group
developed a proposal for a constitutional amendment to grant Congress the right “to
limit, regulate, and prohibit the labor of persons under 18 years of age.” The child
labor amendment (1924) involved far more than the mere passing of legislation since
the case for approval had to be made to each state legislature. While the proponents
of child labor reform began optimistically, support began to erode on a number of
fronts for reasons not necessarily associated with child labor per se. The proposed
amendment remained unratified in 1937 when Congress turned back to direct
legislation with consideration of the Fair Labor Standards Act.15
Early New Deal Enactments (1933-1937). From the period of the
Beveridge bill (1906) to the New Deal era, children’s advocates remained divided
over the means for ending exploitive child labor. The reform community initially
split with respect to federal action. Then, it had largely coalesced behind the Owen-
Keating (1916) and Pomerene (1918) bills, debating long and hard over the wisdom
of a constitutional amendment (1924). By late 1932, leaders of the Children’s
Bureau in the Department of Labor (DOL) and the NCLC, with others, decided to
shift their focus away from ratification of the constitutional amendment (which was
then perceived to be in doubt) and back toward action by individual states.
In retrospect, this shift of emphasis may have been a misreading of the times.
“By 1933,” notes Walter Trattner in his reform-oriented study, Crusade for the
Children, “the spreading contagion of child labor had found every weakness and
loophole in state labor legislation.” He observes: “Sweatshops and fly-by-night
plants were exploiting children for little or no pay, moving at will across state lines
to take advantage of laws of nearby states. The individual states were unable to halt
these abuses which had far-reaching effects, including the complete breakdown of
wage scales.” Thus, in competitive terms, some argued, it was not feasible for
individual states to lead in labor-related reform, even were they predisposed to do so.
14 Trattner, Crusade for the Children, pp. 138-142.
15 Ibid., pp. 163-186. See also “Now the States Must Act! The Past, the Present and the
Future of the Effort to Free American Childhood,” American Federationist, July 1924, pp.
541-553 — the AFL journal of which Gompers was editor; Vincent A. McQuade, The
American Catholic Attitude on Child Labor Since 1891 (Washington: The Catholic
University of America, 1938), pp. 79-100, and 112-128; Thomas R. Green, “The Catholic
Committee for the Ratification of the Child Labor Amendment, 1935-1937: Origin and
Limits,” The Catholic Historical Review, April 1988, pp. 248-269; and Richard B. Sherman,
“The Rejection of the Child Labor Amendment,” Mid-America: An Historical Review,
January 1963, pp. 3-17. Sherman analyzes the various factors that contributed to the defeat
of the child labor campaign during the 1920s.
Trattner concludes: “Everywhere people were looking to Washington for help and
Soon after the inauguration of President Franklin D. Roosevelt, Congress passed
the National Industrial Recovery Act (NIRA, 1933). Under the National Recovery
Administration (NRA), industries were encouraged to develop codes of fair
competition, which in many instances came to include minimum wage and overtime
pay standards, a ban on industrial homework, and the restriction or elimination of
child labor. Elimination of child labor under the Cotton Textile Code seemed,
momentarily, a major breakthrough. However, in May 1935, the NIRA was declared
unconstitutional (Schechter Poultry Corp. et al v. United States, 295 U.S. 495).17
The Agricultural Adjustment Act (AAA) of May 1933 and the Jones-Costigan
Sugar Stabilization Act (1934) were roughly companion measures to the NIRA. In
exchange for certain price supports, the government required grower/producer
adherence to certain labor and marketing standards.18 In 1937, the AAA was
similarly declared unconstitutional.
In an effort to salvage NIRA and AAA labor standards, less comprehensive
measures followed. First, Labor Secretary Frances Perkins, long a child labor
reformer, urged that government, as a consumer (a more likely constitutional
strategy), refuse to purchase items produced by child labor or under unsafe and
unclean conditions in tenements (industrial homework). These restrictions were
made part of the Public Contracts Act (1936), co-sponsored by Senator David Walsh
(D-MA) and Representative Arthur Healey (D-MA), also called the Walsh-Healey
Act.19 Second. Agricultural labor standards, though limited, reemerged in the Beet
Sugar Act (1937), again linked to a federal support system.20
The FLSA and General Child Labor Regulation (1938). Following
adoption of Walsh-Healey, Secretary Perkins urged passage of general federal
minimum wage and overtime pay legislation. Trattner notes that Roosevelt, possibly
believing that the wage/hour measure could more easily be enacted “if it were made
16 Trattner, Crusade for the Children, p. 189. See also Irwin Yellowitz, “The Origins of
Unemployment Reform,” Labor History, fall 1968, pp. 354-355.
17 Margaret H. Schoenfeld, “Analysis of the Labor Provisions of the N.R.A. Codes,”
Monthly Labor Review, March 1935, pp. 591-595; Ella Arvilla Merritt, “Trend of Child
Labor, 1927-1936,” Monthly Labor Review, December 1937, pp. 1371-1390.
18 Trattner, Crusade for the Children, pp. 209-210; Fred Greenbaum, Fighting Progressive:
A Biography of Edward P. Costigan, (Washington: Public Affairs Press, 1971), pp. 143-154;
and Stuart Jamieson, Labor Unionism in American Agriculture, Washington, U.S.
Department of Agriculture, Bulletin No. 836, June 1945, pp. 243-244.
19 Herbert C. Morton, Public Contracts and Private Wages: Experience Under the Walsh-
Healey Act (Washington: The Brookings Institution, 1965), pp. 14-15, and 23-24. Where
government efforts to regulate private sector labor standards had often been disallowed by
the courts, setting standards for itself as a consumer had been more successful.
20 Concerning constitutional issues of this period, see John W. Chambers, “The Big Switch:
Justice Roberts and the Minimum-Wage Cases,” Labor History, winter 1969, pp. 44-73.
more attractive by integrating it with child labor,” combined the several provisions.21
Perkins recalls that child labor provisions were added, late in the process, at the
urging of Grace Abbott, for many years head of the Children’s Bureau at DOL. “The
President readily agreed and was delighted that we might make this bill cover child
labor as well as low wages and long hours.”22 After exhaustive debate, the Fair
Labor Standards Act (FLSA), with its child labor provisions, became law during the
summer of 1938.23
The FLSA was not a complete victory for advocates of child labor regulation.
Historian Jeremy Felt argues that the act may have served “as a deterrent and as an
educational force” but adds that “in those areas where children are useful they
continue to be employed.”24 Further, the act did not deal with competition from
goods produced abroad by child workers under conditions the FLSA proscribed in
During the early 1940s, as enforcement of the FLSA commenced, DOL found
(like reformers early in the century) that illegal exploitation of children as laborers
was extremely difficult to eradicate where industrial homework persisted. Attempts
to regulate the latter were largely unproductive. By the mid-1940s, DOL had
imposed an outright ban on industrial homework in certain garment-related fields.
Thereafter, abusive child labor seems to have faded as a public policy issue, gradually
being replaced by concern with youth unemployment, training, and “school-to-work”
21 Trattner, Crusade for the Children, p. 203. See also Storrs, Civilizing Capitalism, p. 334.
22 Frances Perkins, The Roosevelt I Knew (New York: The Viking Press, 1946), p. 257.
23 Although child labor concerns were voiced during debate on the wage/hour legislation,
separate hearings were held on that issue. See U.S. Congress, Senate Committee onthst
Interstate Commerce, To Regulate the Products of Child Labor, 75 Cong., 1 sess., May
24 Jeremy P. Felt, “The Child Labor Provisions of the Fair Labor Standards Act,” Labor
History, fall 1970, pp. 478-479. Jonathan Grossman, then DOL staff historian, similarly
notes: “The law avoided some sectors of the work force where most abuses of child labor
were concentrated, such as migrant labor, and ‘street trades,’ such as newspaper venders and
shoeshine boys. According to one estimate, only 30,000 child laborers outside of agriculture
would be affected.” See Jonathan Grossman, “Fair Labor Standards Act of 1938:
Maximum Struggle for a Minimum Wage,” Monthly Labor Review, June 1978, p. 29.
25 See GEMSCO, Inc. v. Walling, 324 U.S. 244 (1945).
Child Labor Under the Fair Labor Standards Act
The FLSA, as amended, protects children by setting conditions under which they
may be employed and, in certain types of work, prohibiting their employment
altogether.26 Although the basic structure of the act has changed little since 1938,
Congress has altered specific provisions of the statute and DOL has variously refined
its administration through the rulemaking process.
The Basic Pattern of Coverage
Under the FLSA, employers may not use “oppressive child labor in commerce
or in the production of goods for commerce.” “Oppressive” is partially defined in the
act and partly left to the discretion of the Secretary. Persons under 18 years of age
may not be employed in mining or manufacturing or “in any occupation which the
Secretary of Labor shall ... declare to be particularly hazardous for the employment
of children ... or detrimental to their health or well-being.” Otherwise, 16 years of
age is the usual minimum age for employment. The Secretary may permit
employment of persons 14 to 16 years of age in work not deemed “oppressive,” that
does not interfere with the youth’s schooling, and that is not detrimental to his/her
“health and well-being.” The Secretary has established hours during which children
of various ages may work: that is, the number of hours they may be employed, taking
into account the demands of academic attendance.
The Fair Labor Standards Act is a broad umbrella statute that sets forth general
policies and, at the same time, may specify in precise detail, either in the statute per
se or through implementing regulations, how coverage is to be applied: namely, who
is covered and who is exempt. Because of the technical nature of wage/hour and
child labor law, it may be unwise to accept any segment of the statute (or regulations)
in isolation and at face value. Most provisions of the act have either been the subject
of litigation or have long administrative/legislative histories. What may seem
obvious on the surface may, in fact, be inordinately complex.27
The FLSA, rooted in the commerce clause of the Constitution, excludes from
coverage children who are not involved in activities affecting interstate commerce
— though such persons may be protected by state statutes. Also excluded are
26 Section 203(l) defines “oppressive child labor.” Section 212 defines the relationship of
goods produced by child labor with movement in interstate commerce. Section 213(c) sets
forth the specialized treatment of child workers under the act and the pattern of exemptions
from otherwise standard coverage. The states may (and normally do) have their own child
labor laws. While these may supplement the FLSA, they are not necessarily consistent with
the FLSA standard. Where there is overlapping coverage, the higher standard (most
protective of the youth worker) will normally prevail. When exploring coverage in any
particular case, both the state and federal statutes need to be taken into account.
27 See Title 29 C.F.R. Part 570 for a more complete explanation of child labor regulation in
general. In addition, DOL may have issued “opinion letters” that apply a provision of the
FLSA to specific workplaces.
children employed by “a parent or a person standing in place of a parent employing
his own child or a child in his custody.” A child, for instance, assisting a parent
(helping around a “mom-and-pop” corner grocery or doing chores around the home)
would not be covered under federal child labor law. Nor do the child labor
provisions of the act apply to children employed as actors or in related activities.
Traditionally, the “street trades” (such as newspaper delivery) have been regarded as
appropriate for children and, thus, are not restrained by FLSA child labor provisions.
During the mid-1990s, the Departmental regulations were altered, administratively,
to allow youths of 14 and 15 years of age to work in certain “sports-attending
services at professional sporting events.”
Child/youth employment in agriculture is treated somewhat differently from
nonagricultural employment.28 For example, a child working for a parent on a family
farm is not covered under the FLSA. The law and regulations include differences
with respect to age and the types of work that children and teenagers may perform.
(See Table 1 for a general summary of these requirements.) Under the 1977
amendments to the act, a specialized exemption, carefully circumscribed, was written
into the statute for the employment of children of 10 and 11 years of age as hand29
harvest workers in agriculture.
Even where child labor is banned, enforcement can be difficult. FLSA
compliance staff is relatively small, and enforcement is often complaint driven. Child
workers, themselves, may not be likely to complain. If children are employed with
parental knowledge or consent, complaints from their family may not be frequent —
even where such employment may be illegal or hazardous to the child. Where
migratory agricultural work is concerned, enforcement problems are more complex.
Children, like adults, work for diverse reasons: to have spending money or to
save for their education or other reasons. But, they may also enter the workforce
under pressure from parents who believe that employment, even for young children,
provides good discipline and keeps youngsters off the street and out of mischief. A
traditional argument for child labor has been economic necessity: that is, contributing
to family income. If child workers and their parents fail to cooperate in the
enforcement of child labor law, then DOL compliance activity can become extremely
28 The Department of Labor estimates that, during the late 1990s, about 7% of all
farmworkers were between 14 and 17 years of age: that is, about 126,000 children in that
age group were employed on American farms. However, an unknown number of youth
younger than 14 years of age are also employed in agriculture. See U.S. Department of
Labor, Report on the Youth Labor Force, pp. 52-53.
29 As the 1977 FLSA amendments were written, a grower could employ children age 10 and
11 so long as the grower/employer could demonstrate that any pesticides used in the
production process would not be harmful for children under 12. Since growers have not
been able to demonstrate the harmlessness of such pesticides, they have the choice of (a) not
using pesticides or (b) not employing children age 10 or 11. Children 12 years of age or
older can be employed.
Table 1. Summary of Child Labor Regulation
Under the Fair Labor Standards Act
Nonagricultural JobsAgricultural Employment
Regulations governing youth employment inIn farmwork, permissible jobs and hours of
nonfarm jobs differ somewhat from thosework by age, are as follows:
pertaining to agricultural employment. In
nonfarm work, the permissible jobs and hours(1) Youths 16 years and older may perform any
of work, by age, are as follows:job, whether hazardous or not, for unlimited
ho ur s;
(1) Persons 18 years or older may perform any
job, whether hazardous or not, for unlimited(2) Youths 14 and 15 years old may perform
hours;any nonhazardous farm job outside of school
ho ur s;
(2) Youths 16 and 17 years old may perform
any nonhazardous job, for unlimited hours; and(3) Youths 12 and 13 years old may work
outside of school hours in nonhazardous jobs,
(3) Within limits, youths 14 and 15 years oldeither with a parent’s written consent or on the
may work in retail stores, food servicesame farm as the parent(s);
establishments, and gasoline service stations.
They can work no more than 3 hours on a(4) Youths under 12 years old may perform jobs
school day, 18 hours in a school week, 8 hourson farms owned or operated by parent(s), or
on a nonschool day, or 40 hours in a nonschoolwith a parent’s written consent, outside of
week. Work may not begin before 7 a.m. orschool hours in nonhazardous jobs on farms nota
end after 7 p.m., except from June 1 throughcovered by minimum wage requirements.
Labor Day, when evening hours are extended to
9 p.m.Children of any age are allowed to work on a
farm owned or operated by their parents.
Fourteen is the minimum age for most nonfarm
work. However, at any age, youth may deliver
newspapers; perform in radio, television, movie,
or theatrical productions; work for parents in
their own nonfarm business (except in
manufacturing or on hazardous jobs); or, gather
evergreens and make evergreen wreaths.
Source: Material in this table has been excerpted from the Handy Reference Guide to the Fair Labor
Standards Act, published by the U.S. Department of Labor, Employment Standards Administration,
Wage and Hour Division, WH Publication 1282, Revised October 1996. See Title 29 C.F.R, Part 570,
for a more complete explanation of child labor regulation.
a. The “not covered by minimum wage” provision limits the exemption, effectively, to small farms.
Some have urged nonparental oversight. Academic problems or frequent
truancy could indicate oppressive child labor; but, do school authorities have the time
and resources to monitor the work arrangements of their students? When physicians
treat young persons for problems that might be work-related, can they reasonably be
expected to contact the child’s employer or inspect working conditions? Efforts in
these directions, early in the century, were often unsuccessful but systems of work
permits — sometimes linking school attendance and performance to employment —
continue to be urged, together with work injury reporting.
Hazardous Occupations Orders
Under the FLSA, manufacturing and mining work is deemed too hazardous for
persons under 18 years of age. However, the Secretary may, at his or her discretion,
designate other types of work as similarly too hazardous for persons under 18. In
such cases, the Secretary will issue “hazardous occupations orders” or HOs which are
incorporated in the Code of Federal Regulations (see Table 2).
Table 2. Hazardous Occupations Orders Issued by the
Secretary of Labor: Work Generally Unsuitable
for Certain Young Persons
C.F.R.Type of Work
HO 1Occupations in or about plants or establishments manufacturing or
(29 C.F.R. § 570.51)storing explosives or articles containing explosive components.
HO 2Occupations of motor-vehicle driver and outside helper.
(29 C.F.R. § 570.52)
HO 3Coal mine occupations.
(29 C.F.R. § 570.53)
HO 4Logging occupations and occupations in the operation of any sawmill,
(29 C.F.R. § 570.54)lath mill, shingle mill, or cooperage stock mill.
HO 5Occupations involved in the operation of power-driven wood-working
(29 C.F.R. § 570.55)machines.
HO 6Exposure to radioactive substances and to ionizing radiations.
(29 C.F.R. § 570.56)
HO 7Occupations involved in the operation of power-driven hoisting
(29 C.F.R. § 570.58)apparatus.
HO 8Occupations involved in the operations of power-driven metal forming,
(29 C.F.R. § 570.59)punching, and shearing machines.
HO 9Occupations in connection with mining, other than coal.
(29 C.F.R. § 570.60)
HO 10Occupations in the operation of power-driven meat-processing
(29 C.F.R. § 570.61)machines and occupations involving slaughtering, meat packing or
processing, or rendering.
HO 11Occupations involved in the operation of bakery machines.
(29 C.F.R. § 570.62)
HO 12Occupations involved in the operation of paper-products machines.
(29 C.F.R. § 570.63)
HO 13Occupations involved in the manufacture of brick, tile, and kindred
(29 C.F.R. § 570.64)products.
HO 14Occupations involved in the operations of circular saws, band saws,
(29 C.F.R. § 570.65)and guillotine shears.
HO 15Occupations involved in wrecking, demolition, and shipbreaking
(29 C.F.R. § 570.66)operations.
HO 16Occupations in roofing operations.
(29 C.F.R. § 570.67)
HO 17Occupations in excavation operations.
(29 C.F.R. § 570.68)
Note: Each of these Hazardous Occupation Orders is developed in detail in the Code of Federal
Regulations with specific qualifying factors explained.
Often, an exception will be made (and written into the HO) with respect to
apprentices and student-learners. The regulations make clear that, where there is a
conflict between the HOs and any other provision of law, the higher standard
prevails. Each HO is precise, frequently responding to problems that have arisen in
the workplace. Currently, there are 17 HOs in place with respect to nonagricultural
employment and include (among others) occupations such as work involving
“manufacturing or storing explosives,” “operation of power-driven meat-processing
machines and occupations involving slaughtering, meat packing or processing, or
rendering,” and “logging occupations and occupations in the operation of any
sawmill, lath mill, shingle mill, or cooperage stock mill.” Eleven HOs have been
published with respect to agricultural employment (see Table 3, below). Changes
in the HOs or HOAs often invoke close oversight by the Congress.30
Re-Emergence of the Child Labor Issue (1982-2000)
By the late 1940s, exploitation and endangerment of young children in the world
of work was popularly believed to have been resolved through legislation (the FLSA)
and through the administrative discretion of the Secretary of Labor in implementing
the FLSA. But, occasionally, someone would recall that very young children still
toiled in field harvest work or an especially egregious accident would bring the more
general issue back to the front page.
At the same time, there had begun a gradual shift of focus to a new issue —
inadequate opportunities for youth employment — and the related question of
delinquency. In May 1961, for example, some 500 men and women met in
Washington “to discuss [this] ... serious but little known national problem.” The
summary report of the conference observed that
Again and again in the past decade, juvenile delinquency and the outbreaks of
youthful street gangs have made headlines. The fact that large numbers of our
youth, 16 to 21 years of age, are out of school and unemployed, significant as it
may be in terms of delinquency, has far greater significance in terms of what
changes are taking place in our society....
The summary report pointed to an unemployment rate of 17.1% for this age group
— with a somewhat higher rate for minority youth. “There have always been young
people who dropped out before finishing high school or grade school.... But until
recently, except during the depression, there were ample unskilled jobs for workers
of limited education.” That, the report stated, was no longer true. “When no work
is to be had at home, the small-town boys and the farm boys go off to the cities
where, ill-prepared for urban jobs, they swell the ranks of the young unemployed.”
And that, argued Harvard’s James B. Conant, “is social dynamite” (emphasis in the
original ). 31
30 See 29 C.F.R. § 570.50.
31 National Committee for Children and Youth, Social Dynamite: The Report of the
Conference on Unemployed, Out-of-School Youth in Urban Areas, May 24-26, 1961,
Table 3. Hazardous Occupations Orders Issued by the
Secretary of Labor: Work Unsuitable for Young Persons
Under 16 Years of Age Employed in Agriculture
NumberType of Work
Operating a tractor of over 20 horsepower, or connecting or disconnecting an
HOA 1implement or any of its parts to or from such a tractor.
Operating or assisting to operate (including starting, stopping, adjusting, feeding,
or any other activity involving physical contact associated with the operation) any
of the following machines:
— Corn picker, cotton picker, grain combine, hay mower, forage harvester, hay
baler, potato digger, or mobile pea viner;
— Feed grinder, crop dryer, forage blower, auger conveyor, or the unloading
mechanism of a nongravity-type self-unloading wagon or trailer; or
HOA 2 — Power post-hole digger, power post driver, or nonwalking type rotary tiller.
Operating or assisting to operate (including starting, stopping, adjusting, feeding,
or any other activity involving physical contact associated with the operation) any
of the following machines:
— Trencher or earthmoving equipment;
— Fork lift;
— Potato combine; or
HOA 3 — Power-driven circular, band, or chain saw.
Working on a farm in a yard, pen, or stall occupied by a:
— Bull, boar, or stud horse maintained for breeding purposes; or
— Sow with suckling pigs, or cow with newborn calf (with umbilical cord
Felling, bucking, skidding, loading, or unloading timber with a diameter of more
HOA 5than 6 inches.
Working from a ladder or scaffold (e.g., painting, repairing, or building structures,
HOA 6pruning trees, or picking fruit) at a height of over 20 feet.
Driving a bus, truck, or automobile when transporting passengers, or riding on a
HOA 7tractor as a passenger or helper.
— A fruit, forage, or grain storage designed to retain an oxygen deficient or toxic
atmo sp here;
— An upright silo within two weeks after silage has been added or when a top
unloading device is in the operating position;
— A manure pit; or
HOA 8 — A horizontal silo while operating a tractor for packing purposes.
Handling or applying (including cleaning or decontaminating equipment, disposal
or return of empty containers, or serving as a flagman for aircraft applying)
agricultural chemicals classified toxic, identified by the word “poison” and the
“skull and crossbones” on the label, or identified by the word “warning” on the
Handling or using a blasting agent, including but not limited to, dynamite, black
HOA 10powder, sensitized ammonium nitrate, blasting caps, and primer cord.
HOA 11Transporting, transferring, or applying anhydrous ammonia.
Source: 29 C.F.R., Parts 570-571.
Washington, 1961, pp. 1-2.
Through the next two decades, the literature on youth employment (youth
joblessness) grew rapidly with numerous panaceas for the problem being advanced.
In retrospect, there seems to have been little agreement among policy analysts —
except that the problem was serious.32 However, youth unemployment (or
joblessness) notwithstanding, large numbers of youths have continued to seek and to
Many young persons under the age 15 are employed, but surveys have only
commenced to assess their work patterns.33 However, an absence of data ought not
to be construed to imply that persons younger than 15 years of age are not employed.
The extent of their employment and the socioeconomic circumstances of their lives
may be open to speculation.
Employment of older youth, however, is better understood. Looking at labor
force participation by 15- to 17-year-old-youth through the period 1996-1998, on
average, “about a fourth of both male and female youths were employed during
average school months. During the summer, about one-third of both male and female
youths worked,” the Department of Labor reported. But DOL also reported
significant variations in employment status when considered in terms of race and
ethnicity. About 28% of white youths were employed during school months; about
38% during the summer. For blacks, the comparable figures were 13% (school
months) and 20% (summer); for youth of Hispanic origin, 15% (school months), 20%
The Reagan-Era Initiatives
In July 1982, Labor Secretary Raymond Donovan (for the Reagan
Administration) proposed that existing child labor policy be updated. The
Administration’s plan would have: (a) opened more opportunities for employment
32 The article, “To Be Young, Black and Out of Work,” The New York Times Magazine,
October 23, 1977, p. 39, stated: “Nearly half of all minority youths between 16 and 19 who
are in the work force are unemployed.” Similarly, The AFL-CIO American Federationist,
January 1978, p. 1, in an article by Barbara Becnel, “Black Workers: Progress Derailed,”
observed that unemployment rates “for black teenagers have reached catastrophic levels.
In 1976 they averaged 39.2 percent, and in July 1977 they reached an all-time recorded high
of 45.5 percent.” See U.S. Congress, Joint Economic Committee, Youth Unemployment,thnd
hearing, 94 Cong., 2 sess., September 9, 1976 (Washington: GPO, 1977), 130 p.; and U.S.thnd
Congress, Senate Committee on the Budget, Youth Unemployment, hearing, 95 Cong., 2
sess., February 17, 1978 (Washington: GPO, 1978), 136 p.
33 Concerning employment of workers under 15 years of age, see the collection of essays on
youth employment, based on the National Longitudinal Surveys Program of the Bureau of
Labor Statistics commencing from 1997 (NLSY97), published in the August 2001 edition
of the Monthly Labor Review. In their article, “Illegal Child Labor in the United States:
Prevalence and Characteristics” (Industrial and Labor Relations Review, October 2000, pp.
17-40), Douglas L. Kruse and Douglas Mahony examine this sub-set of youth workers and
evaluate the value of currently available data on workers under 15 years of age.
34 U.S. Department of Labor, Report on the Youth Labor Force, updated November 2000,
pp. 30-31. Hispanics are included in both black and white data sets. Data are pooled across
a three-year period.
for children 14 and 15 years of age; (b) extended the number of hours per day and per
week that children might be employed; (c) revised standards for the employment of
child workers in jobs once considered too hazardous; and (d) simplified and
broadened the manner in which employers could become certified by DOL to employ
full-time students at less than the standard minimum wage.
The Donovan proposal sparked an immediate reaction. When opening hearings
before the House Labor Standards Subcommittee of which he was chair,
Representative George Miller (D-CA) sharply criticized the Administration’s
proposals.35 In turn, Wage/Hour Administrator William Otter defended them as
sound and reasonable public policy. He read from letters from young persons,
parents and potential employers urging flexibility in child labor regulation so that 14-
and 15-year-olds could be more easily employed. Although acknowledging a high
unemployment rate among 16- to 19-year-olds, Otter affirmed his concern “about the
unemployment levels of all age groups” and stated the view that “[u]nreasonable and
artificial impediments to the employment of all age groups should be eliminated.”36
Proponents and critics seemed to agree that the Reagan Administration “had
walked into a minefield” where the child labor issue was concerned.37 In February
1983, Nation’s Restaurant News reported that “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.” But, the News also reported
that the proposal 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.”38
For a time, the regulations remained under review with periodic speculation that
their release was imminent. In the spring of 1984, the Nation’s Restaurant News
speculated that they would likely appear “by the end of the year.”39 Later, it was
reported that the proposal was “likely to resurface” in the near future.40 But, after a
year, it was noted that DOL was again delaying “action on a regulation governing the
employment of minors between the ages of 14 and 16.”41 Some suggested “a
35 Press release from Congressman George Miller, July 27, 1982.
36 U.S. Congress, House Committee on Education and Labor, Subcommittee on Labor
Standards, Oversight Hearings — Proposed Changes in Child Labor Regulations, hearing,thnd
37 Peter Edelman, “Child Labor Revisited,” The Nation, August 21-28, 1982, p. 136.
38 Nation’s Restaurant News, February 28, 1983, p. 2.
39 Bureau of National Affairs, Daily Labor Report, April 23, 1984, p. A7.
40 Ken Rankin, “Pols May Pull Child Labor Scheme off Back Burner,” Nation’s Restaurant
News, November 26, 1984, p. 9.
41 Bureau of National Affairs, Daily Labor Report, April 30, 1985, p. A9.
politically inspired delay” in release of a final rule.42 Whatever the cause, a final
revision never appeared.
Controversies and Changes of Law
As the Reagan Administration proposals receded ever further into the
background, several committees of the Congress conducted hearings on aspects of
child labor — a process that would continue, intermittently, through the 1980s and
1990s. But, although they established an evidentiary record, no general legislation
restructuring child labor law was approved.
In 1987, Labor Secretary William Brock announced formation of a Child Labor
Advisory Committee to assist him with interpretation of child labor issues. The
Committee was chaired by Linda Golodner who was also executive director of the
National Consumers’ League. The advisory body quickly concluded that child labor
was “often on the low end of the priority list” at DOL and that it took “very, very
long for [its] ... recommendations to get through the bureaucracy.” In the spring of
gradually, moved through four lower levels of review and that, by mid-May, they had
reached the desk of the Administrator of the Wage and Hour Division.43
Administrative changes in the wake of the 1988 election may have caused
further delay in moving forward with child labor issues. With the appointment of
Elizabeth Dole as Secretary of Labor (January 1989), the Department appeared to
have adopted a more active interest in the child labor issue. In mid-1989, Secretary
Dole announced appointment of William Brooks of General Motors to serve as
Assistant Secretary for Employment Standards and charged him, inter alia, with child
Almost at once, the new assistant secretary was confronted with a GAO report
affirming that child labor violations had increased dramatically during recent years.
But GAO also suggested that data concerning work (and injuries) involving young
persons were not entirely satisfactory. A more nearly adequate database was
42 Joseph A. Walsh, “Teen-Age Work Rules Targeted Again,” UA Journal, September 1982,
43 Bureau of National Affairs, Daily Labor Report, May 18, 1989, pp. A10-A11. The
Committee had addressed such issues as “door-to-door” sales by persons 14 to 15 years of
age, a special overtime exemption for “bat boys,” and work around commercial paper balers.
It also examined the structure of penalties for child labor violations. During this period,
GAO was looking into some of these same issues while the National Consumers’ League
launched its own independent review of child labor practices.
44 Bureau of National Affairs, Daily Labor Report, July 31, 1989, pp. A6-A7; and August
45 Bureau of National Affairs, Daily Labor Report, November 22, 1989, pp. A7-A8.
Departmental initiatives, with investigations by GAO and the Consumers’
League, combined with existing congressional concern to give the issue of child labor
enhanced visibility. In early 1990, Brooks informed the Advisory Committee that a
special task force on child labor would be formed within DOL and would look into
such issues as possible revision of the hazardous work orders and the penalty
structure for child labor violations. Brooks promised, the Daily Labor Report
reported, “that in the next six months, rigorous enforcement of child labor law will
be the watchword of the agency.”46 Hearings followed, along with new legislative
proposals. And, DOL launched Operation Child Watch, the first in a series of
“sweeps” or general inspections aimed at compliance.47 Changes were made in the
penalty structure and, presumably, in DOL’s enforcement policy.
Some viewed DOL’s initiatives as a “commendable start” — but there were also
misgivings. Representative Don Pease (D-OH), one of the more outspoken advocates
of child labor reform, argued that something more was needed than “occasional
public relations events” and intermittent crack-downs on violators. Although Pease
seems to have favored legislative reform, the Bush Administration apparently did
not.48 In June 1990, Brooks assured the National Grocers Association that no new
legislation was necessary: that any needed changes “can be made administratively.”49
The status of the Advisory Committee was unclear. Golodner reported in November
of 1990 that no meeting of the Committee had been held since early in the year, that
the terms of current members had expired in March, and that no new members had
been named by DOL. In late 1990, Secretary Dole indicated her intent to retire.
Brooks resigned to return to General Motors.50
In 1994, the Clinton Administration proposed a general review of child labor
regulation, similar in scope to that proposed by Secretary Donovan, though of a
different thrust. Comprehensive oversight and administrative reform continued to
be discussed but, essentially, both Congress and DOL proceeded on an ad hoc basis.
The “Bat Boy” Issue. In April 1986, Senator Dan Quayle (R-IN) proposed
that child labor law be relaxed to permit 14- and 15-year-olds to work as bat boys or
bat girls for professional baseball team, even when games might run until late at
night. The Senator stated that baseball “is the All-American sport” and indicated that
youngsters should not be forced to wait until they were 16 years of age “to associate
with the players of their home town teams.”51 Congress mandated a study of the
question, and the issue was allowed to die.
46 Bureau of National Affairs, Daily Labor Report, February 8, 1990, pp. A10-A12.
47 Bureau of National Affairs, Daily Labor Report, March 19, 1990, pp. A16-A17; May 1,
48 Bureau of National Affairs, Daily Labor Report, May 4, 1990, pp. A13-A15.
49 Bureau of National Affairs, Daily Labor Report, June 25, 1990, p. A8.
50 Bureau of National Affairs, Daily Labor Report, November 5, 1990, pp. A6-A7; and
November 13, 1990, p. A6.
51 Congressional Record, April 9, 1986, p. S9013.
In the spring of 1993, the matter was raised again when it prevented a 14-year-
old youngster from Georgia from serving as a bat boy for the Savannah Cardinals.
Labor Secretary Robert Reich, faced with the difficulty of explaining the logic of the
work hours requirement, suspended its enforcement and proposed to allow children
of 14 and 15 years of age to work as late as circumstances might dictate — “before,
during, and after a sporting event,” around the playing field, “club house or locker
room” — to provide “sports-attending services at professional sporting events.”
Certain conditions were specified, intended to protect children from hazardous
activity. And thus, by the spring of 1995, the regulation had been changed.52
But questions remained. For example, if it were inappropriate, per se, for young
persons (14 and 15 years of age) to work late hours on a school night, did it really
matter what sort of work they were doing? How did “sports-attending services”
differ, in that context, from work in the food services industry or in a real estate or
law office entering data into a computer? Might a more routine business
environment be preferable to that of professional sports for the education and welfare
of 14- and 15-year-olds? Some in the restaurant industry argued that “it was unfair
to exempt the sports industry from the hours and time restrictions while leaving the
restrictions in place for all other employment.”53
Paper Balers and Compactors. Under Hazardous Occupations Order No.
12, persons under 18 were not allowed to load waste paper and boxes into
commercial (industrial) paper balers and compactors. Operation of such equipment,
DOL had determined, was especially hazardous for younger workers. Even loading
them was viewed by the Department as a serious risk. Karen Keesling, Acting
Administrator of DOL’s Wage and Hour Division, explained that it was not just the
loading but that individuals involved in that process would likely reach into a baler
or compactor to keep the materials from falling out or to clear jammed materials —54
and “that is extremely hazardous.” Conversely, the National Grocers Association
termed HO 12 “a prime example of regulatory excess.”55
In March 1995, Representative Thomas Ewing (R-IL) introduced H.R. 1114,
legislation that would have permitted operation of the baling/compacting machinery
by “minors under 18 years of age” — so long as the equipment met safety standards
established by the private sector American National Standards Institute (ANSI). A
similar proposal was introduced by Senator Larry Craig (R-ID). The legislation was
supported by the National Grocers Association and opposed by the Child Labor
Coalition (a youth advocacy group) and by people in the trade union movement. As
signed into law (P.L. 104-174) on August 6, 1996, the legislation had been redrawn
52 Federal Register, May 13, 1994, p. 25167; and April 17, 1995, pp. 19336-19337. The
basis for the decision is explained by Robert B. Reich in his account, Locked in the Cabinet
(New York: Alfred A. Knopf, 1997), pp. 113-116.
53 Federal Register, April 17, 1995, p. 19337.
54 Letter from Karen Keesling to Ronald A. Block (attorney for the National Grocers
Association), October 16, 1992.
55 Statement of Thomas F. Wenning, Senior Vice President and General Counsel, National
Grocers Association (NGA), July 11, 1995, House Subcommittee on Workforce Protection.
to permit workers “who are 16 and 17 years of age ... to load materials into, but not
operate or unload materials from, scrap paper balers and paper box compactors” that
meet ANSI safety standards and where certain other requirements have been met.
Whether the qualifying language was adequate to protect the youthful workers,
however, remained in dispute.56
Work-Related Operation of Motor Vehicles. Hazardous Occupations
Order No. 2, as developed at the discretion of the Secretary of Labor, restricted the
work-related operation of certain motor vehicles by persons under the age of 18 as
“particularly hazardous” for younger workers. While not absolutely precluded, strict
guidelines and limitations had to be complied with. Conformity with specified safety
standards and operation only during daylight hours was required. Employment-
related driving could only be “occasional and incidental” though there might be some
doubt about the definition of such terms.
In April 1994, Representative Mike Kreidler (D-WA) introduced legislation
directing the Secretary to modify HO 2 to permit a wider opportunity for young
persons to drive in conjunction with their regular work. No action was taken on the
Kreidler bill and in July 1995, new legislation was introduced by Representative
Randy Tate (R-WA) and Senator Slade Gorton (R-WA). Hearings followed but theth
legislation died at the close of the 104 Congress. In July 1997, Representative Larry
Combest (R-TX) reintroduced the issue as H.R. 2327 (the Drive for Teen
Though modification of HO 2 had been endorsed by automobile dealers, it had
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.
Persons 16 and 17 years of age, normally, are beginning drivers who will have only
recently qualified for a driver’s licence. Although some youngsters may be fine
drivers, it was argued that their lack of experience created a significant risk, both to
the young persons themselves and to the public.
In its final form, the legislation proposed to allow persons 17 years of age to
engage in limited professional driving, under specified safety conditions and with
certain limitations, but would still prohibit such activity by persons under 17. The
Combest bill, as amended, was signed by President Clinton on October 31, 199857
56 Congressional Record, May 2, 1995, pp. S6009-S6010; October 24, 1995, pp. H10661-
H10667; and July 16, 1996, pp. S7912-S7914. See also U.S. Congress, House Committee
on Economic and Educational Opportunities, Authority for 16 and 17 Year Olds to Loadthst
Materials into Balers and Compactors, report to accompany H.R. 1114, 104 Cong., 1
sess., H.Rept. 104-278 (Washington: GPO, 1995).
57 CRS Report 98-561, Child Labor in Hazardous Occupations: “On-the-Job Driving” by
Youth Workers, by William G. Whittaker.
Child Labor Initiatives During the 108th Congress
Child labor concerns have, generally, been a mixture of economic and social
policy. Although Congress and DOL, at least for now, have resolved certain aspects
of child labor regulations, other and often broader issues remain.
The Traveling Sales Crew Protection Act
On September 23, 2003, Representative Tom Lantos (D-CA) introduced H.R.
3139, the Youth Worker Protection Act, one component of which was the provision
that “No employer may employ a minor [a person under 18 years of age] in youth
peddling.” The bill, which went on to define what is included within the concept of
“peddling,” was referred to the Committee on Education and the Workforce and, in
mid-October 2003, to the Subcommittee on Workforce Protections.
Some Questions of Public Policy. Periodically through recent years,
concerns have been raised about the welfare of young persons (the age varies) who
are engaged in certain types of outside sales work. On occasion, the focus has been
upon the “street trades”: selling newspapers, candy, or other items at subway stops
or, locally, from door-to-door. In such cases, a manager or supervisor may recruit
young persons, move them to various local sites and, at day’s end, collect them and
bring them back to their homes. But, there is also another arrangement: the
“traveling sales crews” in which a sales team goes on the road and remains away
from its home base, possibly for extended periods. Some argue that each of these
types of sales (“peddling”) can encompass risks, especially for young persons.
Such sales work by young persons suggests numerous questions of public
policy. For example, how young is too young for children to be engaged in street
sales, potentially in rough neighborhoods with which they may not be familiar? And,
if they do engage in such work, through what hours should they be employed: how
early in the morning and how late at night?
The situation becomes more complicated when groups of recruits are
transported from their homes to a distant city to engage in sales work. Are the
vehicles in which they are transported safe and insured? How and where are these
workers housed? Does the manager or supervisor have authority and responsibility
with respect to the off-hours behavior of these young workers? What happens if one
of these young persons becomes ill and needs medical attention?
Beyond the personal, there are strictly workplace questions. What is the
employment relationship between these workers and the manager or supervisor? Are
the youth workers employees, independent contractors, or something else entirely?
To the extent that they are employees, by whom are they employed? The manager
or supervisor may also be an employee of some more distant entity. Where does
responsibility ultimately reside? How are wages and benefits handled? What
employment records are maintained — and by whom?
From a policy perspective, some may ask: Should young persons be excluded,
by law, from working in street or door-to-door sales or in related support services
other than actual selling? Were otherwise applicable hours restrictions to be
observed, would such work be acceptable? Would a blanket prohibition on outside
sales work by persons under 18 years of age unduly restrict their capacity to earn?
Is there something inherently inappropriate about street sales or door-to-door sales?
Is such work wrong when 16- and 17-year-olds are involved, but a legitimate
entrepreneurial activity if all of the sales staff (and, perhaps, support staff) are 18 and
over? Is such work acceptable when confined to a certain radius from the permanent
residence of the sales staff? And, how expansive should that radius be?
The Wyden Initiative. In May 1985 (the 99th Congress), then-Representative
Ron Wyden (D-OR), stating that “unscrupulous door-to-door selling groups” were
exploiting young persons (some of them, children; others, young adults), introduced
legislation to establish a National Clearinghouse on Fraudulent Youth Employment
Practices. While Wyden conceded that “the vast majority of door-to-door sellers are
wholly honorable and reputable,” others, he suggested, were not. These companies
“can be peddling anything from magazine subscriptions to chemical cleaners.” He
outlined a host of alleged violations of law and fraudulent sales practices engaged in
by such firms and urged his colleagues to help “put these dangerous and
unscrupulous operators out of business. And ... take a step toward protecting our
youth from dangerous employment practices.”58
Hearings were conducted (November 1985) by the House Subcommittee on
Civil and Constitutional Rights. Susan Meisinger, speaking for the Reagan Labor
Department, testified that there was indeed a problem. “Unlawful practices reported
by the States include violations of their child labor laws, violations of minimum wage
laws, employer failure to pay taxes and unemployment insurance, and abuse of child
workers,” Meisinger noted, “including forcing them to pay kickbacks, child
molesting, and placing them in high risk, late night employment environments.”59
But the Reagan Administration was divided on the issue. Victoria Toensing,
representing the Department of Justice, agreed that “problems relating to the
recruitment and use of salespersons do exist” but she suggested that any legislative
action would be premature. “The extent of these problems has not yet been
established,” Toensing stated, and, in any case, state and local authorities “may be
as effective, if not more so, than the federal government in preventing such abuses.”
Further, she suggested, not all of the alleged worker/victims were minors. After
reviewing a series of federal statutes that might apply if there actually were a
problem, Toensing noted that the Department of Justice “... considers present60
statutory provisions adequate.”
The Wyden bill (H.R. 2544) died at the close of the 99th Congress. Hearings on
the general issue were subsequently conducted by the Senate Permanent
58 Congressional Record, May 16, 1985, p. E2251.
59 Statement of Susan R. Meisinger, Deputy Under Secretary for Employment Standards,
DOL, November 6, 1985, the House Judiciary Subcommittee on Civil and Constitutional
60 Statement of Victoria Toensing, Deputy Assistant Attorney General, Criminal Division,
November 6, 1985, the House Judiciary Subcommittee on Civil and Constitutional Rights.
Subcommittee on Investigations (1987)61 and by the House Committee on
Government Operations’ Subcommittee on Employment and Housing (1990).62 In
each case, the matter was restricted to general oversight. Further legislation was not
The Kohl Proposals. In November 1999 (the 106th Congress), Senator Kohl
introduced S. 1989, the Traveling Sales Crew Protection Act — his interest sparked
by an auto accident in Wisconsin in which seven young people were killed and others
injured. The Senator explained: “The driver [in the Wisconsin case] had a
suspended license and a series of violations.” These firms, he stated, “employ crews
who travel from city to city selling products door to door. Often times,” he asserted,
“... [they] mistreat their workers and violate local, state, and federal labor law.
Because they rapidly move from state to state, enforcement efforts are difficult if not
impossible for local authorities.” Senator Kohl recalled that it had been 12 years
since the hearing by the Permanent Subcommittee on Investigations (noted above)
and affirmed: “... nothing has changed. These abuses continue, and Congress should64th
act.” But, no action was taken: the bill died at the close of the 106 Congress.
Early in the 107th Congress, Senator Kohl introduced new traveling sales
crew/peddling legislation (S. 96). The Kohl bill would have amended the FLSA to
provide that “No individual under 18 years of age may be employed in a position
requiring the individual to engage in door to door sales or in related support work in
a manner that requires the individual to remain away from his or her permanent
residence for more than 24 hours.” After defining the operative language, the bill set
forth a registration requirement for employers and supervisors of traveling sales crew
workers. Then, assuming that such practices were to be allowed, it outlined the
obligations of the parties — dealing with such issues as housing, transportation,
wages (and deductions therefrom), insurance, and related matters. It then proposed
a system for enforcement.
A comprehensive and detailed proposal, S. 96 was referred to the Committee
on Health, Education, Labor and Pensions (HELP) where no action was taken.65
61 U.S. Congress, Senate Committee on Governmental Affairs. Permanent Subcommittee
on Investigations, Exploitation of Young Adults in Door-to-Door Sales, hearing, 100th Cong.,st
62 U.S. Congress, House Committee on Government Operations, Subcommittee on
Employment and Housing, Children at Risk in the Workplace, hearing, 101st Cong., 2nd sess.,
March 16, June 8, 1990, pp. 277-297.
63 The issue, however defined, continued to arise periodically. See Jim Naughton,
“Children’s Candy Sales Are Criticized: Distributors Under Scrutiny for Possible Child
Labor Infractions,” The Washington Post, May 9, 1990, pp. A1, A10; “State Trying To
Close Down Firm Employing Youngsters,” The Daily Olympian, October 15, 1990, pp. C1-
C2; and Julie Barrett, “Kiddie Hawkers,” Generation Next, July/August 1995, pp. 22-23.
64 Congressional Record, November 19, 1999, p. S15102.
65 A somewhat condensed version of the legislation (H.R. 3070) was introduced in the House
during the 107th Congress by Representative Thomas Petri (R-WI). No action was taken on
Then, on May 22, 2002, Senator Kohl introduced S. 2549, an abbreviated version of
the traveling sales crew/peddling legislation. An amendment to Section 12 of the
FLSA, S. 2549 read, in pertinent part:
No individual under 18 years of age may be employed in a position requiring the
individual to engage in door to door sales or in related support work in a manner
that requires the individual to remain away from his or her permanent residence
for more than 24 hours.
It further authorized the Secretary of Labor to “issue such rules and regulations as are
necessary to carry out” the proposed amendment. On August 1, 2002, the HELP
Committee, to which the bill had been referred, was discharged from further66
consideration and the bill, under unanimous consent, was agreed to by the Senate.
It was referred to the House Committee on Education and the Workforce,th
Subcommittee on Workforce Protections, where it died at the close of the 107
The issue was raised in the 108th Congress, again in an abbreviated form, with
introduction of H.R. 2139 by Representative Lantos: an umbrella child labor reform
proposal, discussed below. No action, however, was taken on the Lantos bill.67 Inth
the 109 Congress, Lantos again introduced the issue as part of H.R. 2870, a general
bill dealing with child labor. But once more, the bill was directed to the
Subcommittee on Workforce Protections, where it remained.
Sawmilling/Woodworking by 14-Year-Olds
On May 1, 2003, legislation to permit employment of young persons (of at least
14 years of age) in sawmilling and woodworking facilities was introduced by
Representative Joseph Pitts (R-PA) and Senator Arlen Specter (R-PA) —
respectively H.R. 1943 and S. 974. On October 8, 2003, a hearing on the Pitts bill
was conducted by the House Subcommittee on Workforce Protections.
A Question of Public Policy. Work in or around sawmills and wood-
working machinery has been deemed by DOL as especially hazardous for persons
under 18 years of age. The practice violates at least two Departmental Hazardous
Occupations (HO) Orders: HO 4, covering sawmills, and HO 5, dealing with power-
driven woodworking machines.68
the Petri bill.
66 Congressional Record, August 1, 2002, p. S8022.
67 Congressional Record, September 24, 2003, pp. E1873-E1874.
68 See 29 C.F.R. §§ 570.54 and 750.55. In a letter of July 22, 1998, to Chairman William
F. Goodling (R-PA), then-Chair of the Committee on Education and the Workforce, Deputy
Secretary of Labor Kathryn Higgins explained the special hazards associated with work in
the lumber and wood products industry which, she said, were “exacerbated for youth” given
their “lack of training” and “immaturity.”
Speaking generally, the Amish resist requirements of law that would alter their
traditional way of life and have rejected compulsory school attendance beyond the
8th grade. The Daily Labor Report explains: “After completing their formal
classroom training [elementary school] at age 14 or 15, Amish boys typically receive
training in farming or carpentry from their fathers.”69 In recent years, the opportunity
for the Amish to farm has diminished — in part, because of increased land values and
property taxes. Therefore, the Amish have sought other activities for their children.
“What are we supposed to do with them if they don’t work here,” lamented one
member of the Amish community, “have them stay on the street all day?”70
The Amish have sought to have their sons work in sawmills and woodworking
plants where there is Amish supervision (or where they are supervised by an adult
relative).71 The Department of Labor has held that permitting children to work in
such plants would be a violation of federal child labor law: HO 4 and HO 5. The
result has been a clash between the Amish and DOL. The Amish have pressed for
an amendment to the child labor provisions of the FLSA in order to accommodate
Taking the Issue to Congress. At least since the 105th Congress,
legislation to amend federal child labor law on behalf of the Amish has been
repeatedly introduced, both in the House and in the Senate. The bills, generally,
would widen the opportunity for youth ages 14 to 18 “to be employed inside or
outside places of business where machinery is used to process wood products.” In
order to qualify for such employment, a youth would have to be “a member of a
religious sect or division thereof whose established teachings do not permit formal
education beyond the eighth grade.” In the 105th and 106th Congresses, the Amish72
legislation was passed by the House under suspension but the Senate did not act.
69 Bureau of National Affairs, Daily Labor Report, July 23, 1998, p. A11. Concerning the
Amish perspective on public education, see Gertrude Enders Huntington, “Persistence and
Change in Amish Education,” in Donald B. Kraybill and Marc A. Olshan (eds.), The Amish
Struggle with Modernity (Hanover, New Hampshire: University Press of New England,
1994), pp.77-95; and Thomas J. Meyers, “Education and Schooling,” in Kraybill (ed.), The
Amish and the State (Baltimore: The Johns Hopkins University Press, 2003), pp. 87-106.
70 Steven Greenhouse, “Foes of Idle Hands, Amish Contest a Child Labor Law,” The New
York Times, October 18, 2003, p. A1.
71 Ibid. The issue involves sons, not daughters. Greenhouse explains, p. 9, “Teenage girls,
as always, learn skills like quilting or work in retail shops.” See also Marc A. Olshan and
Kimberly D. Schmidt, “Amish Women and the Feminist Conundrum,” in Kraybill and
Olshan (eds.), pp. 215-230.
72 Congressional Record, September 28, 1998, pp. H9121-H9124. See also U.S. Congress,
House Committee on Education and the Workforce, Subcommittee on Workforce
Protections, The Effect of the Fair Labor Standards Act on Amish Families and H.R. 2038,thnd
the MSPA Clarification Act, hearing, 105 Cong., 2 sess., April 21, 1998 (Washington:
GPO, 1998); and U.S. Congress, House Committee on Education and the Workforce,
Amending the Fair Labor Standards Act of 1938 To Permit Certain Youth To Perform
Certain Work with Wood Products, report together with minority views to accompany H.R.thst
Had the legislation been adopted, Amish children, having left school after the
8th grade, could have been employed in work otherwise regarded as too hazardous for
persons under 18 years of age. Some have suggested that constitutional issues may
be involved in affording special treatment to the Amish that is not afforded to other
religious groups. Setting aside issues of legality, other questions could be raised,
given that Amish children are permitted to leave school after the 8th grade.73 First,
would elimination of federal restrictions upon child labor — to the extent proposed
in the legislation — provide an opportunity (and, perhaps, an incentive) for Amish
children to leave school and to enter the world of work? Or, would it merely
recognize that Amish children are already out of school and, thus, permit them to be
productively occupied? Second, assuming that these children do leave school to
work, are sawmills and wood processing establishments appropriate places of
employment for any youngsters under the age of 18? Might other areas of skills
training be more suitable for children than mill work with its attendant hazards?
What types of work are suitable for 14-year-old Amish children and who should
In order to strengthen the ties of Amish children to the Amish community,
youngsters are systematically separated from the non-Amish world.75 The work
experience of Amish children with the skills they acquire on the family farm may not
be readily transferable to the non-Amish marketplace. Thus, with only an eighth
grade education and lacking experience in the non-Amish world, their subsequent
choices may be, accordingly, restricted, rendering their out-migration from the
community within which they were raised extremely difficult.76 Some may applaud
this result; others may question the appropriateness of a federal role in its facilitation.
On May 3, 2001, the Senate Appropriations Subcommittee on Labor, Health and
Human Services, and Education, conducted an oversight hearing on the employment
needs of Amish youth. Representative Mark Souder (R-IN) spoke in support of
exemption. Mr. Souder, representing a partly Amish constituency, explained that the
Amish had not been able to persuade DOL to acquiesce in industrial employment for
Amish children at age 14. Urging amendment of the FLSA to permit such
employment, he argued that the Amish children would be “supervised by adults who
73 The issue of school attendance is developed in some detail in Wisconsin v. Yoder, 406
U.S. 205 (1972).
74 The proposed legislation deals narrowly with employment of children in sawmills and
related woodworking establishments. Their employment in other fields, currently restricted
by law or by administrative ruling, would require separate action.
75 Jennifer Brown, “Old Ways Persevere, Flourish: Non-Mainstream Culture Helps
Anabaptist Communities Retain Hold on the Young,” The Washington Post, April 21, 2001,
76 These issues are discussed in Joel Feinberg, “The Child’s Right to an Open Future,” in
William Aiken and Hugh LaFollette (eds.), Whose Child? Children’s Rights, Parental
Authority, and State Power (Totowa, N.J.: Rowman and Littlefield, 1980), pp. 124-153; and
Dena S. Davis, “The Child’s Right to an Open Future: Yoder and Beyond,” Capital
University Law Review, vol. 26 (1997), pp. 93-105. See also Albert N. Keim (ed.),
Compulsory Education and the Amish: The Right Not to Be Modern (Boston: Beacon Press,
know and care about them” and that the proposed amendment “would protect a truly
endangered religion and culture.”77
Thomas M. Markey of DOL testified in opposition, arguing: “Sawmills are
dangerous places to work, even for adults.” Pointing to a high accident and fatality
rate for the industry nationwide, he stated that such work is “even more dangerous
On June 13, 2001, during consideration of S. 1 (reauthorization of the
Elementary and Secondary Education Act), Senator Specter proposed S.Amdt. 420.
It would have amended the FLSA to permit Amish youngsters, 14 years of age and
older, to work, under specified conditions, in mills and woodworking plants. Senator
Edward M. Kennedy (D-MA), chairman of the Committee on Health, Education,
Labor, and Pensions (HELP), and Senator Specter engaged in a brief debate. Senator
Kennedy affirmed that it “would be valuable to have ... an open hearing” on the issue
— particularly with respect to the safety of prospective workers — and agreed that
his committee would conduct such a hearing. With that understanding, Senator
Specter then withdrew his proposed amendment.79
On July 25, 2001, legislation to permit Amish youth to work at age 14 in wood
processing plants was introduced both in the House and in the Senate: H.R. 2639
(Pitts) and S. 1241 (Specter). No action was taken on these proposals.
Revived in the 108th Congress. The Pitts (H.R. 1943) and Specter (S. 974)th
bills of the 108 Congress largely follow the pattern of recent years. To be exempt
from the restraints of federal child labor law, several standards would be imposed.
The targeted youth must be “at least 14” years of age. Further, the child:
(a) Must be “by statute or judicial order ... exempt from compulsory school80
attendance beyond the eighth grade.”
(b) Must be “supervised by an adult relative” or “by an adult member of the same
religious sect or division as the individual.”
(c) May not “operate or assist in the operation of power-driven woodworking
(d) Must be “protected from wood particles or other flying debris within the
workplace by a barrier appropriate to the potential hazard of such wood particles
or flying debris or by maintaining a sufficient distance from machinery in
(e) “[I]is required to use personal protective equipment to prevent exposure to
excessive levels of noise and saw dust.”
77 Testimony of Rep. Mark Souder before the Senate Subcommittee on Labor, Health and
Human Services and Education, Committee on Appropriations, May 3, 2001.
78 Testimony of Thomas M. Markey, Acting Administrator, Wage and Hour Division, U.S.
Department of Labor, before the Subcommittee on Labor, Health and Human Services, and
Education, Committee on Appropriations, U.S. Senate, May 3, 2001.
79 Congressional Record, June 13, 2001, pp. S6153-S6154.
80 The wording is from S. 974. The phrasing of H.R. 1943 is slightly different.
Other concerns aside, some may ask: Would the safeguards be adequate? In the
absence of frequent DOL inspections, would the precautions be observed? Does the
fact that a supervisor would be of “the same religious sect” as the child worker render
the work any less hazardous — or the supervisor any more diligent in monitoring the
On October 8, 2003, the Subcommittee on Workforce Protections conducted a
hearing on H.R. 1943. In an opening statement, Chairman Charlie Norwood (R-GA)
observed that the bill provides:
... that certain youth whose religious faith and beliefs dictate that they “learn by
doing” are afforded an opportunity to do so, and that the federal government —
however well-meaning — does not endanger the belief and culture of these81
young people and their families.
As the lead witness (DOL was not represented at the hearing), Representative Pitts
stated that actions of the Department had “severely threatened the lifestyle and
religion of this respected and humble community” and averred that the “government
should not interfere” with Amish practices lest “their strong heritage ... be
undermined.”82 Representative Mark Souder (R-IN), while reviewing the proposed
safeguards embodied in the amendment, also framed the issue in religious terms.
Government bureaucracy, he stated, “... is threatening the Amish people’s very way83
of life. It is interfering with their religious freedom.” Christ K. Blank, speaking for
the Old Order Amish, concurred, declaring “the ages 14 through 17 to be a very
tender receptive age” and a period during which “to instill ... Amish values and work
ethics in our children.”84
But, not all were in complete agreement. Nicholas Clark of the United Food and
Commercial Workers, AFL-CIO, recognized the religious desires of the Amish
community. He pointed out, however, that federal government studies had found that
working conditions in “sawmilling and woodworking are among the most hazardous
occupations for adults, with a death rate that is five times the national average for all
industries,” and that such work is “especially inappropriate for young workers”
(emphasis in the original). Clark expressed concern about constitutional issues and
raised, as well, the issue of equity. The proposed amendment “... would grant
Amish-owned sawmills and woodworking firms an exception from child labor laws
that are [sic] denied firms owned by persons of non-Amish faiths.” Further, he
argued, it would deny “Amish children the very real benefits of governmental health
and safety protections that are afforded Catholic, Baptist, Jewish or any other” non-
Amish children. While sawmills and woodworking plants “provide much needed
81 Opening statement of Chairman Norwood, October 8, 2003.
82 Testimony of Rep. Pitts, October 8, 2003.
83 Testimony of Rep. Souder, October 8, 2003.
84 Testimony of Christ K. Blank, Chairman, Voice of the Old Order Amish, Old Order
Amish Steering Committee, October 8, 2003.
employment for Amish adults,” he concluded, “they cannot safely or constitutionally
serve that purpose for Amish children.”85
Amish Child Workers and the 2004 Appropriations Bill. As the firstth
session of the 108 Congress moved to a close, several appropriations bills (among
them, the measure providing funding for the Department of Labor) remained to be
passed. Ultimately, the several appropriations bills were combined in H.R. 2673, the
FY2004 Consolidated Appropriations bill.
A conference report on H.R. 2673 (H.Rept. 108-401) was filed on November
25, 2003. Included in the conference report (Senator Specter had served as a Senate
conferee) was language roughly paralleling that of H.R. 1943, the Amish child labor
bill. In an explanation of the measure, the conference report stated:
The conference agreement includes a provision to permit youth, ages 14 through
17, who by statute or judicial order are exempt from compulsory school
attendance beyond the eighth grade, to work inside or outside places of business
where machinery is used to process wood products. The youth would be
permitted to perform activities such as sweeping, stacking wood, and writing
orders. Safety provisions include prohibiting the youth from operating
machinery, and requiring the use of eye and body protections.
On December 8, 2003, the House voted to approve the conference report (with the86
Amish child labor provision included). The vote was 242 yeas to 176 nays. Senate
consideration of the measure was deferred until the second session of the 108th87
Congress. On January 20 and 22, the Senate considered the conference report,
though attention appears to have focused on overtime pay regulations and subjects
other than the Amish child labor provision. On January 22, the Senate approved the
conference report by a vote of 65 yeas to 28 nays.88 The measure was signed by the
President on January 23, 2004 (P.L. 108-199).
In a statement to the press, Senator Specter noted that he had “toured an Amish
sawmill in Lancaster County, PA,” had met with some members of the Amish
people, and had come to “know of the importance of this legislation to their
community and culture. This is an issue of freedom of religion,” he affirmed, “where
85 Testimony of Nicholas Clark, October 8, 2003. Clark stated: “The proposal would also
require government investigators to determine whether owners of firms seeking to employ
child labor, and their child employees, are truly Amish. Such determinations would
necessarily entangle the government in the practice of religion, also in violation of the First
86 Congressional Record, December 8, 2003, p. 12845.
87 U.S. Congress, Conference Committees, Making Appropriations for Agriculture, Rural
Development, Food and Drug Administration, and Related Agencies for the Fiscal Year
Ending September 30, 2004, and for Other Purposes, conference report to accompany H.R.thst
88 Congressional Record, January 22, 2004, pp. S155-S156.
the Amish prefer to educate their children aside from the public schools and part of
that educational process is for teenagers to work in the lumber mills.”89
Child Labor Initiatives During the 109th Congress
As with previous years, child labor remained a subject of interest among someth
Members of the 109 Congress. Several bills from prior Congresses were re-
introduced. Several new bills were added. (See Table 4, below.)
Table 4. Child Labor Proposals of the 109th Congress
H.R. 1142Foley — To prohibit “exploitive child
modeling” involving persons
under 17 years of age
H.R. 2870Lantos — A comprehensive overview of
child labor with restrictions
placed upon child workers:
prohibition of youth peddling;
mandates for reporting
requirements; and imposition of
certain other restraints
H.R. 3482Roybal-Allard — Focuses upon agricultural child
H.R. 3753Musgrave — Comprehensive home school
bill; suggests that “home
schooled students” (14 to 16
years of age) be permitted to
work longer than hours worked
by public school students
H.R. 4190DeLauro — Requires (a) that the Secretary
of Labor not pre-disclose an
inspection, and (b) that a study
and report of child labor issues
be made to Congress
S. 1691Craig — See the Musgrave bill (H.R.
S. 2357Kennedy — Comprehensive bill (368 pp.)
that refers to the restriction of
child labor and enforcement of
internationally recognized labor
standards dealing with child
89 Press release, Office of Senator Arlen Specter, January 23, 2004, the Senator’s website,
visited on January 29, 2004.
Protecting Child Models
On March 8, 2005, the Child Modeling Exploitation Prevention Act (H.R. 1142)
was introduced in the House by Representative Mark Foley (R-FL), with others. The
bill was referred to the Subcommittee on Workforce Protections of the House
Committee on Education and the Workforce and to the Subcommittee on Crime,
Terrorism, and Homeland Security of the House Committee on the Judiciary. No
further action was taken on the measure.
For a number of years, Representative Foley had raised the issue of children
engaged in modeling on Internet sites. “What occurs,” he explained in a floor
statement, “... is that young girls, 10, 12, 13 years old, are encouraged by their parents
and aided and abetted by individuals to display themselves on the Internet for viewer
ship, if you will, [by] people who pay a fee, a monthly fee in order to view the site.”
Although some parents, he suggested, are deceived into thinking that such activity
is legitimate modeling, Mr. Foley disagreed. He stated that he was “not suggesting
that there is not an appropriate place in commerce for young people to display their
talents” but, rather, that he had in mind a particular type of website that encourages
“inappropriate” types of modeling by children.90
In the 109th Congress, Representative Foley introduced H.R. 1142, which was
similar to legislation introduced in the previous Congress (by Representative Foley
in the House and Senator Jim Bunning in the Senate).91 The proposal amended
Section 12 of the FLSA to provide that “no employer may employ a child model in
exploitive child modeling.” It went on to explain:
(A) In this subsection, the term ‘exploitive child modeling’ means modeling
involving the use of a child under 17 years old for financial gain without the
purpose of marketing a product or service other than the image of the child.
(B) Such term applies to any such use, regardless of whether the employment
relationship of the child is direct or indirect, or contractual or noncontractual, or
is termed that of an independent contractor.
The measure distinguished between an image that is exploitive and one that, “taken
as a whole, has serious literary, artistic, political, or scientific value.” The legislation
proposed both fines and imprisonment (of not more than 10 years) for violators.
Young American Workers’ Bill of Rights
General restructuring of the child labor components of the FLSA has long been
sought, though from somewhat different perspectives, by industry and by labor. In
NY) and Tom Lantos (D-CA ) introduced legislation titled the “Young American
Workers’ Bill of Rights.” With various changes (but with a continuity of thrust), the
legislation would be reintroduced in each Congress thereafter.
90 Congressional Record, September 18, 2002, pp. H6349-H6350.
91 This is a general summary of the provisions of H.R. 1142. The reader may want to review
the text of the bill for more precision and detail.
In the 109th Congress, the initiatives were set forth in H.R. 2870 (Lantos), the
Youth Worker Protection Act. The Lantos bill was comprehensive, providing for a
wide variety of changes in current law and practice.92
(a) The bill begins by defining a “minor.” He or she must be “is at least 14 years
old or, if younger than 14 years old, is otherwise permitted to work under this
Act.” “In the case of a minor who is between the ages of 16 and 18 years, the
employment is not in an occupation that is particularly hazardous for the
employment of children between those ages or detrimental to their health or well-
being....” “The minor is employed in accordance with this Act and in accordance
with any other Federal, State, or local law that provides greater protection to
(b) The minor has a work permit that includes the specified provisions under this
— The work permit shall include name, date of birth, gender, racial or ethnic
background, and contact information for the minor; name, contact information,
and consent of a parent of the minor; a certification (if appropriate) by a school
official showing attendance requirements; e.g., name, contact information, and
type of business of the employer; and type of work.
— The Secretary of Labor will prescribe a unified model for such work
permits that will contain information concerning the identity of the child worker
and his/her parent (or a similar person where appropriate), contact information
and parental consent for the child to work, school status, identification of
employer, type of work to be engaged in, name and contact information of the
designated state agency, summary of age limitations and other legal requirements
for employment of minors, among other information. A system of expiration
dates for individual work permits is specified.
— The designated state agency may revoke a work permit if the agency finds
either of the following: (1) the minor “is not in compliance with school
attendance requirements,” or (2) the minor is adversely affected by the
employment involved. The minor or the parent of the minor would have had an
option for appeal of the revocation.
(c) Hours that are allowable for work by minors were specified in H.R. 2870,
together with the number of hours per day and week that can be worked.
(d) If the minor sustains a serious work-related injury, the designated state
agency must be notified by each of the following: the employer, the appropriate
medical professional, the appropriate law enforcement officer (where
applicable), and an employee of the school attended by the minor where an93
absence of more than three days is involved.
(e) The bill provided that the designated state agency must collect and retain (for
seven years) statistical data concerning the work permit system and any work-
related injury information.
92 This is a general summary of the provisions of H.R. 2870. The reader may want to review
the text of the bill for more precision and detail.
93 A “serious work-related injury” is one that results in “(1) the death of the minor; (2)
medical attention for the minor; or (3) investigation by a law enforcement agency.”
(f) The designated state agency must report annually to the Secretary of Labor.
The report shall include assorted statistical data (see item “e” above) and
information concerning “the activities and number of work-hours devoted by
State and local government employees (including contractors) to the
administration and enforcement of child labor laws in the State.”
(g) The bill would have provided that “[no employer may employ a minor in
youth peddling” and defines what is included in the concept of youth “peddling.”
(See discussion of the “peddling” issue, above.)
(h) It set forth extensive requirements for enforcement and penalties.
(i) The bill amended Section 13(c) of the FLSA to raise the age for employment
in agriculture outside of school hours from “twelve years of age” to “fourteen
years of age.”
(j) It makes uniform the standard for employment in hazardous agricultural work.
(k) The bill would repeal the provision of current law permitting, at the
discretion of the Secretary (with certain specific criteria), children as young as
(l) It would eliminate the employment of children under 18 years of age in
connection with commercial paper balers and compactors. (See discussion
(m) “Not later than 24 months after the date of the enactment of this section,” the
Secretary of Labor is directed to promulgate a rule revising the Hazardous
Occupations restraints in certain specified industries. The Secretary was also
directed at “appropriate intervals, but in no case less than once during each five-
year period,” to conduct “a comprehensive review” of the Hazardous
Occupations Orders to assure that they are current.
(n) Within 24 months of enactment of this section, the Secretary is directed to
promulgate a rule to prohibit employment of minors in (1) seafood processing
and (2) employment “requiring a minor to handle or dispose of oil or other
liquids from fryers.”
(o) Within 36 months, the Secretary was directed to review the employment of
minors in work involving: (1) “[r]epetitive bending, stooping, twisting, or
squatting,” (2) “[l]ifting of heavy and/or unwieldy objects,” (3) “[w]orking alone
or late at night in retail establishments where there is direct contact with the
public and cash is handled,” and (4) “[w]ork in the entertainment industry that94
is detrimental to the health, safety, education or well-being of minors.” The
Secretary shall submit to Congress a report of the review, together with proposed
regulations governing such work.
On July 25, 2005, H.R. 2870 was referred to the House Subcommittee on
Workforce Protections of the House Committee on Education and the Workforce.
The Subcommittee took no action on the bill.
94 Arguably, the latter could include protection of child models. See discussion above.
The CARE Act of 2005
For several years, Representative Lucille Roybal-Allard (D-CA) presented
legislation that dealt primarily, through not exclusively, with child labor in
agriculture. On July 27, 2005, Representative Roybal-Allard introduced H.R. 3482,
the Children’s Act for Responsible Employment of 2005, or the CARE Act of 2005.
The Roybal-Allard bill began with a revision of Section 13(c), eliminating the
option of having young persons under 16 years of age employed in agriculture
“including in an agricultural occupation that the Secretary of Labor finds and declares
to be particularly hazardous.” The bill offered two exceptions: where the employee
“is employed by a parent of the employee or by a person standing in the place of the
parent,” or “on a farm owned or operated by the parent or person” standing in the
place of a parent. Further, the bill deleted Section 213(c)(4), which allows an
“employer or group of employers” to hire young persons (down to the age of 12
years) for certain select crops.
The bill expanded the penalties, both civil and criminal, for persons found to be
in violation of the act. Also, the Secretary of Labor, with respect to persons under
18 years of age employed in agriculture, was to gather data with respect to “each
serious lost-time work-related injury, serious lost-time worker-related illness,” or
work-related death. An employer was expected to submit a report to the Secretary.
Failure to file a report was subject to a civil penalty of up to $7,000 per violation.
The Secretary could employ at least 100 additional inspectors, whose principal
purpose would be to enforce compliance with child labor laws.
The bill provided that the Secretary, not later than 180 days after the date of
enactment, would issue rules relating to the exposure of child workers to certain
pesticides and related chemicals. It allowed for some measure of accommodation
between the Secretary of Labor and the Administrator of the Environmental
Protection Agency with respect to pesticide-related fines.
Finally, H.R. 3482 amended the Workforce Investment Act (WIA) of 1998 to
provide the greater of $10 million or 4% of the amount appropriated for WIA youth
activities for youth activities under the Migrant and Seasonal Farmworker Programs.
The Roybal-Allard bill was referred to the House Committee on Education and
the Workforce. On October 12, 2005, it was referred to the Subcommittee on
Workforce Protections and to the Subcommittee on 21st Century Competitiveness.
The Subcommittee took no action on the bill.
The Safe at Work Act
On November 1, 2005, Representative Rosa DeLauro (D-CN) introduced the
Safe at Work Act (H.R. 4190). The bill was referred to the House Committee on
Education and the Workforce and, on March 24, 2006, to the Subcommittee on
Workforce Protections. No action was taken on the proposal.
The DeLauro bill was divided into two parts: First, the bill required that the
Secretary of Labor “not enter into any agreement to provide any person with notice
prior to commencing an investigation or inspection.” Second, it required the
Comptroller General to conduct a study of violations of child labor laws “including
the number and type of allegations of child labor violations, when and whether
inspections or investigations commenced for each such allegation, what enforcement
action or other outcome resulted from such inspections or investigations, and a
comparison of the extent to which such violations occurred in both large and small
businesses....” The time period for the Comptroller General’s study was five years
prior to the date of enactment.
Child Labor Initiatives During the 110th Congress
Several child labor bills have been introduced in the 110th Congress. (See Table
The Child Labor Protection Act of 2007
Different bills entitled the Child Labor Protection Act of 2007 have been
introduced in the current Congress.
In the House, on June 8, 2007, Representative Lynn Woolsey (D-CA)
introduced H.R. 2637, which was referred to the Committee on Education and Labor.
The House approved the bill by voice vote on June 12, 2007. H.R. 2637 would
increase from $10,000 to $11,000 the maximum employer penalty for each employee
who is subject to a violation of the child labor provisions of the FLSA. The measure
would also establish a maximum civil penalty of $50,000 for each violation that
causes the death or serious injury of any employee under the age of 18. The $50,000
penalty may be doubled for repeated or willful violations of child labor law. The bill
would also increase from $1,000 to $1,100 the maximum penalty for violating the
minimum wage or overtime provisions of the FLSA.
In the Senate, Senator Norm Coleman (R-MN), on June 12, 2007, introduced
S. 1598, which was referred to the Committee on Health, Education, Labor, and
Pensions (HELP). S. 1598 includes the identical changes in civil penalties as
contained in H.R. 2637.
On April 23, 2008, Senator Olympia Snowe (R-ME) introduced an amendment
(S.Amdt. 4573) in the nature of a substitute to H.R. 493, the Genetic Information
Nondiscrimination Act of 2008. H.R. 493 was approved by the House on April 25,
The Senate approved the amendment by a vote of 95 in favor and none opposed. The
measure was signed into law by President George W. Bush on May 21, 2008, and
became P.L. 110-233.
On June 13, 2007, Senator Tom Harkin (D-IA) introduced S. 1614, another
version of the Child Labor Protection Act of 2007. S. 1614 would amend the FLSA
to establish a minimum civil penalty of $500 and a maximum penalty of $15,000 for
each employee who is subject to a child labor violation. The bill would also create
a minimum penalty of $15,000 and a maximum penalty of $50,000 for each violation
of child labor law that causes the death or serious injury of an employee under the
age of 18. The latter penalty could be doubled to a maximum of $100,000. The bill
would also increase from $1,000 to $1,100 the maximum penalty for violating the
minimum wage or overtime provisions of the FLSA. Finally, the measure would
establish criminal penalties (fines, imprisonment, or both) for violations of the child
labor provisions of the FLSA. The bill was referred to the Senate HELP Committee.
The CARE Act of 2007
On June 12, 2007, Representative Lucille Ms. Roybal-Allard (D-CA) introduced
H.R. 2674, the Children’s Act for Responsible Employment of 2007, or CARE Act
of 2007. Except for two provisions, the measure is the same as the CARE Act of
the CARE Act of 2007 does not direct the Secretary of Labor to employ additional
inspectors to enforce child labor law. Also, the CARE Act of 2007 would not amend
the WIA law with respect to youth activities under the Migrant and Seasonal
H.R. 2674 was referred to the Subcommittee on Workforce Protections of the
Education and Labor Committee.
The Child Labor Safety Act
Representative Bruce Braley (D-IA) introduced the Child Labor Safety Act. The
act would increase from $11,000 to $50,000 the maximum civil penalty for each
employee who is subject to a violation of the child labor provisions of the FLSA.
The bill would also raise from $50,000 to $100,000 the maximum penalty for each
violation that causes the death or serious injury of any employee under the age of 18.
The measure would impose criminal penalties (a maximum fine of $50,000 or
imprisonment for up to six months) for violations of child labor law. The bill was
introduced on September 10, 2008, and was referred to the Committee on Education
Table 5. Child Labor Proposals of the 110th Congress
H.R. 2637WoolseyPassed House. Raises the maximum civil
Provisions arepenalties for violations of child
included in H.R.labor law.
H.R. 2674Roybal-Allard — Focus is on agricultural child
H.R. 6861Braley — Raises the maximum civil
penalties and establishes
criminal penalties for
violations of child labor law.
S. 1598ColemanProvisions areRaises the maximum civil
included in H.R.penalties for child labor
S. 1614Harkin — Raises the maximum civil
penalties and establishes
criminal penalties for violations
of child labor law.