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In the interest of full disclosure, I took my first job when I was twelve years old. There were child labor laws even in those dark ages, but I was fortunate to find a loophole that allowed me to be an independent sub-contractor for an independent contractor that distributed the Washington Post. I naively told people I worked for that paper, blissfully unaware of the subtle distinctions that permeate the world of work. I worked in the dark, seven days a week, without supervision regarding my safety or performance. I did not earn the mandated minimum wage. I was proud of my work, and pleased to have the opportunity. It taught me a great deal over four years.
There are a raft of laws that protect children in the world of work. The move in that direction likely took a turn back when the United States Supreme Court took a hard u-turn on the commerce clause and concluded that the federal government could regulate intrastate activity under the authority of the interstate commerce powers it had been granted. That analysis in Hammer v. Dagenhart, 247 U.S. 251 (1918) is among the more intriguing reads one might find. Explaining the Court's logic in reversing its then-existing precedent might well come off like an Abbot and Costello routine.
Despite that, federal laws do constrain intrastate activity as regards the workplace. The rationale and reasoning of Hammer lies at the root of a plethora of federal workplace regulation that has been layered on in the century since (OSHA, FMLA, ADA, etc). There are those who see the current coexistence of state and federal labor regulation as dual federalism, and others who find that label inappropriate based upon criticism of the order and predictability elements. It can make for cocktail party conversation, but not of the most compelling nature. If you run into someone that is ready for a Hammer discussion, you have likely wandered into a unique party
I recently ran across a news article, or perhaps opinion piece, published by the Guardian. As a side note, opinions should be clearly labeled by those who are journalists. It asserts that "child labor law violations have been on the rise in the US," and criticizes various state legislatures for both discussing changing state labor laws and advocating for federal changes. There is a perception or conclusion that our current post-pandemic economy has led businesses to recruit the young. The Guardian does not shy from its criticisms and conclusions. However, empirical evidence is thin in some regards.
Certainly, the national news suggests that existing labor laws protect children effectively. The USA Today reported recently about a multi-state sanitation company fined for employing underaged in overnight cleaning operations. The Hill recently noted the allegation by some lawmakers that there are systemic child labor issues in some supply chains. HR Morning noted fines levied against a trampoline park here in Florida, as well as other violations of the Fair Labor Standard Act (FLSA). In short, there seems ample investigation and penalty underway regarding underage employment.
The underlying Guardian theme seems to be focused on what hours of the day are permissible for employment for the young. There is criticism of the roles and "types of jobs young workers are permitted to do." And, in that, there is likely room for discussion and debate. There is some friction between a person's right to work and the government's desire to protect them. But, the Guardian proceeds to further criticize legislative efforts or discussions it perceives as intended to "shield employers from liability for injuries, illnesses or workplace fatalities involving very young workers."
As the inimitable Billy Shakespeare once noted, "ay, there's the rub." Hamlet, 1599-1601. The Guardian provides no citation for any proposed legislation that would provide employers with such liability protection. In point of fact, the criticism is seemingly more likely directed not at any changes or any proposals, but at the "grand bargain" that is American workers' compensation. That is the law, through employer immunity, that provides such a "shield" as regards all employees. This is not based upon age, nor is it somehow suspicious or suspect, or untoward.
The Guardian analysis cites evidence of "increased" citations for "child labor law violations." Those statistics are troubling ("37% increase"). There are anecdotal examples of "high-profile" allegations of violations involving recognizable employer names. Those are seemingly ongoing investigations or prosecutions. The coverage does not provide clarity as to whether there have been conclusions or convictions in those cited instances. The result of those citations might well be that the law is operating as intended?
And, subsumed in the article's analysis is criticism of a state considering the expansion of the kind of work in which teenagers can engage. The focus is Iowa Senate bill SF-167. The Guardian article does not cite the bill but does provide a link to another article that cites the bill. It is frustrating sometimes that journalists leave us to hunt down source material that is easily citable. The Iowa bill does expand the scope of some work activities, but arguably further restricts others. That balance is missing from the article.
The bill does not mention workers' compensation specifically but does address "civil liability" regarding students participating in work-study. Perhaps either the authors ("also strips workers’ compensation rights for these workers") or I may be misconstruing the bill in this context. There seem to be multiple potential interpretations of the bill. Despite not being linked in the article, it is presumed that the actual bill was read in drafting the Guardian piece, and the other article alone was not the source of information.
The president of an Iowa labor group is quoted criticizing the bill. He voices a perception that the bill dramatically turns back the clock on child labor, and characterizes the legislative process as "re-litigating a lot of things that seem to have been settled." Legislatures are not litigation. He reminds that "Child labor law is there to make sure that kids are working in age-appropriate work activities or occupations that are appropriate for their age." This redundancy clarifies it is critical that age-appropriate work is appropriate for age. How could one argue with that? Or, perhaps this argument is persuasive regarding the proposed changes in state law?
The authors bring valid attention to the risks of injury for young workers. There is empirical data that supports that young people have higher rates of injury. There are also perceptions in the workers' compensation industry that new employees suffer more work accidents than more seasoned workers. Each of these is likely attributable in part to inexperience and inattention. The article alleges that the rates of minor injuries are "likely an undercount" and the frequency is actually higher. There is no data cited in support of that conclusion or conjecture. The conjecture occurrence in media is likely undercounted (I made that up).
The quoted sources in the Guardian article focus on their desire for greater consistency in the regulation of labor. They lament that children work on family farms and in family businesses under existing exclusions or exceptions. There is criticism and angst regarding legislative debate and discussion, but there is little or no citation to the perils or dangers that are paraded in those settings. There is no discussion of equal protection of the laws and the discriminatory effect that allows the child of a business owner greater access to employment than those of us whose parents did not own businesses.
Iowa is not alone. Minnesota is purportedly considering changes to its labor laws also. Business Insider reports that the potential is related to a shortage of labor. It casts the debate as a sufficiency analysis in which it perceives two interactive elements: sufficiency of payroll and sufficiency of supply. It asserts that increasing labor supply through labor law alteration is one solution to insufficient labor supply, but that increasing payroll would otherwise increase labor supply by drawing the majority workers back to the workplace. It is possible that increased wages would impact that supply/demand equation. But, there is no empirical data cited. Are majority workers on the bench due to their perceptions of wage availability, or are there other causes?
In the end, the sentiment of the Guardian author's analysis is that the young are being subjected to exploitation if they are allowed to work longer hours during "summer months" or "on holidays." There is the perception expressed that such exploitation is possible if young people are permitted to "extend working hours" with their parent's permission. There are fears expressed regarding "placing (the young) in dangerous work environments," but no discussion of the specific prohibitions in the Iowa bill regarding such work (NEW SECTION. 92.6B "Persons fifteen years of age may not be employed in").
No article cited herein regarding proposed changes in state law makes any mention of the Supremacy Clause of the U.S. Constitution. The federal laws will control when there is conflict with state law. There is no path for states to legalize what is controlled by Federal law. Certainly, the great pot-rush of the twenty-first century has demonstrated to us that states can decriminalize behavior and ignore federal law if they wish. A great many have championed and applauded this rampant disregard of federal law. But, the success of the pot-rush has been endorsed and facilitated by the federal legislature that refuses to change federal law on one hand and precludes its enforcement on the other.
In the end, the critics would perhaps be better served to confront that riddle. Is there to be effect of federal law? Is federal law meaningful? If it is, the FLSA is both valid and effective preclusion of child labor. No action of the states will change that federal law, so long as the Congress allows it to be enforced. But, the great pot-rush has taught us that money talks and perhaps the potential for failure or preclusion in federal law enforcement is what keeps the critics and journalists up at night regarding states and their suborindate child labor statutes?
By Judge David Langham
Courtesy of Florida Workers' Comp
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About The Author
About The Author
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Judge David Langham
David Langham is the Deputy Chief Judge of Compensation Claims for the Florida Office of Judges of Compensation Claims at the Division of Administrative Hearings. He has been involved in workers’ compensation for over 25 years as an attorney, an adjudicator, and administrator. He has delivered hundreds of professional lectures, published numerous articles on workers’ compensation in a variety of publications, and is a frequent blogger on Florida Workers’ Compensation Adjudication. David is a founding director of the National Association of Workers’ Compensation Judiciary and the Professional Mediation Institute, and is involved in the Southern Association of Workers’ Compensation Administrators (SAWCA) and the International Association of Industrial Accident Boards and Commissions (IAIABC). He is a vocal advocate of leveraging technology and modernizing the dispute resolution processes of workers’ compensation.
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