Ask anyone in agriculture how they got their present job. Whether they be a teacher, professor, researcher, manufacturer, government employee, veterinarian, professional service provider or farmer, the odds are very great they will tell you that their career in agriculture began as a child working for their parents or grandparents on a farm.
We all had chores. What were difficult times then are spoken of today with pride. Most of us see our adult virtues rooted in those tasks assigned to us as children.
None of us want to go back to those days of being outside in cold winter nights bringing in fuel for the stove – or milking cows before going to school – or piling bales of hay on a wagon in summer heat and humidity – or any other of the tasks.
But we generally today admit those hated chores as children made us better adults; they made us who we are.
Many of us try to pass a sense of work ethic and responsibility to our own children. Visit any family farm operation from the smallest to the largest and you will find owners’ children of all ages working. Young ones feed calves, older ones feed and milk cows or harvest crops or any number of necessary chores.
One of the most enduring pictures of American agriculture is the image of an American family working together for a common purpose. For some the American farm is families working together, period.
So integral to our concept of farming is multi-generational family labor that many believe it is a natural right of parents to put their children to work on the farm as they so decide. Some even see it as an unlimited right.
While labor of owners’ children in agriculture is generally permitted today, it is not as unfettered as some would believe. For more than a century, efforts at the state and federal level have sought to restrain employment of minors everywhere, including the family farm. As a consequence, employing children on the farm is subject to restrictions.
If the U.S. Department of Labor (DOL) gets its way, even more restrictions are on the way.
After several decades of progressive efforts to eliminate child labor in manufacturing and mining, a number of states had imposed regulations. But industries in states that did not have the restrictions had a competitive advantage, and the effort moved to have a federal law limiting child labor.
But at that time, the mid-1920s, the dominant constitutional view was that Congress had no power to regulate commerce at such a local level. In response, the House of Representatives, in April 1924, passed the Child Labor Amendment to the U.S. Constitution.
The Senate followed several months later. It was sent to the states for ratification. The amendment read simply, “The Congress shall have power to limit, regulate and prohibit the labor of persons under 18 years of age.”
With the focus on employment of adolescents in grimy factories and dark mines and its result, that these children had no childhood or education, the proponents were able to move the amendment through Congress. They expected an equally easy path through state legislatures.
When the measure reached the states, what was predicted to be quick passage turned into a quick defeat. By the end of the year, so many states had actually defeated ratification that there were not enough states left to ratify it.
What in Congress was saving children became an ardent fight over states’ rights versus the federal government, family authority over government regulation and agriculture and manufacturing.
In the speed of passage, the final language of the amendment spoke not of employment but regulating or prohibiting labor. Regulation of employment meant a corporation that hired workers.
Family members who worked on the farm or in the family business or did household chores were not employed, but providing labor. That meant that Congress could prohibit a parent from demanding children dry the dishes or carry out the garbage. It went beyond mere commerce.
The six-month expected passage dragged out for years. Some new states ratified it, some who had earlier rejected it changed their mind and some of those who had originally ratified it withdrew their ratification. Still others ignored it and the constitutional requirement that three-fourths of the states ratify was never reached.
A renewed effort for approval came in the mid-1930s when the Supreme Court declared Franklin Roosevelt’s National Recovery Act unconstitutional. This legislation included regulations on child labor. So a few more states ratified the amendment, but there was still not enough support to make it constitutional.
After the Supreme Court agreed that the Congress could regulate commerce between the states through labor laws, Congress passed the Fair Labor Standards Act in 1938 which prohibited employment of children in manufacturing and mining but, mindful of the road blocks to the previously passed constitutional amendment, generally exempted children working for parents in agriculture.
Over the years, the regulations have evolved and tightened. In 1968, Congress gave the Department of Labor (DOL) authority to identify hazardous occupations within agriculture and either ban or regulate child employment in those areas.
While generally children employed by parents or guardians in agriculture are not subject to the minimum ages, this should not be considered a broad exemption for minors working in agriculture. The rule applies to working for parents or guardians.
DOL has treated working for near-kin, such as grandparents and aunts and uncles, within that definition of family farming. But the key here is that the parents, or person in their place as guardian, need to own or control the farming operation. Working for a neighbor does not come within the exemption.
Today, federal regulations prohibit children under 18 from, among other things, being in a pen with a newborn calf with the umbilical cord still attached, operating equipment, painting barns more than 20 feet up, working in a horizontal silo while operating a tractor or handling agricultural chemicals.
The prohibitions are found at 29 Code of Federal Regulations §570.71. DOL has a website that provides resources to help sort out the issue of employment of minors in agriculture: http://www.dol.gov/dol/topic/youthlabor/employmentparents.htm
DOL is poised to make the regulations even tighter. It justifies the need for these even tighter regulations because, according to its analysis, young people working in agriculture have a higher (two times by its estimate) risk of death or injury.
For example, it cites a study that estimates for each year of 1992 through 2000, 62 to 73 young people died in agricultural work-related accidents. The bulk of these involved either farm machinery, trucks or silos.
The proposed regulations and the explanation for why DOL wants to make them can be found at “Child Labor Regulations, Orders and Statements of Interpretation; Child Labor Violations – Civil Money,” 76 Federal Register 54836. The proposed regulations can be viewed at www.regulations.gov .
At that site, enter the key words WHD-2011-0001-0001, its document number, and among the choices will be this reference.
Selecting the entire docket will make the comments and supporting data available for review. (Note that not all comments are shown. Those who file their comments in hard copy generally do not appear for a long time, if at all, in this portal.)
The proposed rules create additional occupational hazard designations which mean that the minimum age for working there will be 18. For permitted activities, additional regulations are imposed.
For example, while operating equipment, the new regulations would prohibit the use of electronic communication equipment including email, texting, phone use and viewing movies.
The biggest change is the prohibition of 16-year-olds and 17-year-olds (those under 16 are already prohibited) from working in what DOL calls “raw materials wholesale trade.” In practical terms we know these as grain elevators, commercial feedlots and packing houses.
The reason for the prohibition is the combination of large equipment, trucks and transportation, which pose huge risks to safety. Additional restrictions prohibit working with most farm chemicals. Finally, fines for violations will increase to as much as $100,000 per event.
As farming continues to concentrate, equipment use increases and the size and power of equipment grows, fewer and fewer jobs will be available for minor farm children. Many state laws have their own regulations, often more restrictive.
Also, as the number of people who are directly familiar with agriculture diminish, the odds of having a judge or regulator who is unfamiliar with farming also grows. The result will be the viewing of farming as an occupation in narrower and narrower terms.
This author, in litigating farm labor exceptions in a different context, ran up against rulings that held that changing a tire on a tractor was not part of farming, nor was hauling feed from a site not contiguous to farm.
No longer can a farmer assume that he can have his children do whatever he wants on the farm and be free from federal or state regulation.
It requires that each farmer take a proactive approach and learn what activities on his farm his children are permitted to do. Hiring children not under his control is generally prohibited.
Today the Child Labor Amendment is still open for ratification. Ignoring those states which withdrew their ratification, 10 more states are required to pass the amendment.
Considering the reach of DOL down to whether or not children of farm owners can listen to iTunes while working on the farm, the need for the amendment is moot.
At the same time, those who lobbied against it because they feared intrusion into the federal government deciding whether or not a parent could require their children to do certain chores proved to be prophetic. PD
Yale Law Office