by Emily Enger
If your childhood memories include watching a sunset through the settling fog of grain dust or kissing your High School Sweetheart behind the bins on the back 40, then you are one of the increasingly-fewer Americans who can call yourself a “farm kid.” Growing up on a farm, you probably heard all sorts of sentimental stories: your grandfather who walked uphill to school both ways, ancestors who made it through the Great Depression by transforming their acres into the first form of agritainment, communities lending helping hands during difficult harvests. But there are the other stories you know too, as familiar to rural youths as the paved trail to their buddy’s place: the five year old who lost his arms in the PTO; the tomboy trying to outshine her older brother who was never quite “normal” after that ATV crash; the young man about to go to college until his mower slipped off the creek bed and trapped him under the water.
Nation-wide farm accidents are decreasing, according to data provided by the National Institute for Occupational Safety and Health (NIOSH) and demonstrated on their graphs shown here, but there remains concern that the rate of decrease in accidents is not matching the industry’s population decrease. Child Labor/Young Worker Specialist Mary E. Miller, RN MN, with the Washington State Department of Labor and Industries, wrote a comprehensive study and call for action in the Journal of Agromedicine titled “Historical Background of the Child Labor Regulations: Strengths and Limitations of the Agricultural Hazardous Occupations Orders.” In it, she cited the 2011 “Injury Facts” research put out by the National Safety Council, which claims that agriculture is the number one most dangerous industry in the United States and has a fatality rate more than twice that of mining, the number-two most dangerous industry.
National child labor laws began in 1938 in an effort to get children out of factories and mines. Within those regulations were exemptions for agriculture. Today, federal U.S. laws do include restrictions on youth labor in agriculture, their introduction largely due to the onslaught of farm-related accidents. However, these laws apply to a hired workforce and contain parental exemptions. No restrictions currently exist for youth working on their own family farms or hired youth at or above the age of 16.
The hours anyone under age 16 can work must follow the local public school calendar. This must be followed even if the hired youth does not attend the local school. If he or she attends private school, is homeschooled, or has finished educational requirements, the hours and days this employee works must still follow the local school calendar. Farmers are allowed to hire children younger than 16 for after school labor, but written parental permission is needed to employ anyone 13 or younger. There are no limits on the number of hours these youth may work per day or week or any restrictions on how long of a season they can put in.
Federal law forbids children under 16 from performing tasks declared hazardous by the Secretary of Labor. Some of the most common machines that fall into this category: tractors of over 20 PTO horsepower, fork lifts, grain combines, corn or cotton pickers, auger conveyers, and chain saws. Working with logging equipment, applying toxic chemicals or using blasting agents contain many restrictions, as well. To ensure your young employee is performing legal tasks, read up on the Hazardous Occupations Orders for Agricultural Employment, which is the full, comprehensive list of forbidden tasks. This list is on page four of the following document: www.dol.gov/whd/regs/compliance/childlabor102.pdf.
Definition of “Agriculture”
Miller notes some misunderstandings she’s come across while working for Washington State’s department of labor: namely, what constitutes “agriculture?”
The “Child Labor Requirements in Agriculture Occupation Under the Fair Labor Standards Act (Child Labor Bulletin 102),” which sets the policy for youth working in agriculture, defines their regulatory coverage as employees who:
• cultivate the soil or grow or harvest crops
• raise livestock, bees, fur-bearing animals, or poultry
• perform work which is incidental to the farming operations of that farm (such as threshing grain grown on that farm)
• work off the farm as employees of the farmer performing work which is incidental to the farming operations of that farm (such as delivering produce to market by truck)
Work that goes beyond this scope is no longer defined as agriculture.
Miller gives a common example: “Places that do packaging where they are packing another grower’s product is no longer agriculture; it’s commercial.” When farmers work with their own product, it is considered agriculture. When farmers work on another grower’s product, it becomes commercial. And a commercial enterprise must follow nonagriculture child labor laws, which are more protective.
This is not just for large packing operations. Miller emphasizes that even if a grower is packaging for only one other business, that is still considered a commercial enterprise and cannot be performed by youth under 16.
Employers caught violating child labor laws can be fined up to $11,000 for each minor who was subjected to illegal work activity, according to the Child Labor Bulletin 102. These penalties are set by the Department of Labor’s Wage and Hour Division. The employer has 15 days from receiving the citation to formally file an exception, at which time a court date will be set where the employer will have to prove he or she did not violate the law. The finer details of penalties are dependent upon the case. In certain situations, there may be other violations applied in addition to the child labor violation, including those completely separate from child labor laws (such as safety codes, minimum wage requirements, or more.) This has the potential to add up to higher fines as well as jail time.
Youth labor laws have long been a controversial one in agriculture, concern about overregulation as much a focal point as the discussion of safety. The last time any changes to child labor laws in the industry were proposed was 2011by then-Secretary of Labor Hilda S. Solis. The ensuing battle resulted in the Obama Administration pulling the proposal off the table, claiming in a press release that their decision was “in response to thousands of comments expressing concerns about the effect of the proposed rules on small family-owned farms.
“To be clear,” the press release continues, “this regulation will not be pursued for the duration of the Obama administration.” Thus far, that remains the case. Miller knows of no new proposals currently in the works. This means that federal laws regulating youth farm labor are more than 40 years old, as the original proposals have not been changed since their adoption in 1970. “They need to be modernized and updated,” Miller claims.
On a broad scale, Miller would like to make sure the laws are written in clear, plain language and do away with rules that are no longer relevent due to shifts in the industry. More specifically, she’d like to see agriculture closer aligned to nonagriculture youth labor laws. “There is no scientific or developmental basis that these industries be regulated differently, particularly when agriculture remains one of the most hazardous industry sectors for adults and youth alike,” says her article “Historical Background of the Child Labor Regulations: Strengths and Limitations of the Agricultural Hazardous Occupations Orders.”
Aligning agriculture with nonagricultural youth labor laws would dramatically alter what hired youth are legally permitted to do on farms. The 2011 debate showed how unpopular restrictions can be for rural populations, who cite the decrease in farm accidents as proof that their own measures and programs (safety mechanisms added to machinery and local education programs such as FFA, 4-H, and Cooperative Extension) are, in fact, working.
That focus on education seems to be the hallowed place of common ground in this debate. When the Obama administration rescinded the 2011 proposal, the press release claimed that the departments of both Labor and Agirculture would “work with rural stakeholders to develop an educational program to reduce accidents to young workers.” Miller concurs, as well. “It isn’t just about regulations,” she assures. “It’s about injury prevention. It requires outreach and education…you can’t just hand people a list of dos and don’ts. It has to be an integrated approach.”
It is important to note that the above rules are federal laws and your state may have more stringent laws that apply as well. The Department of Labor has provided a resource for state-by-state laws at www.dol.gov/whd/state/agriemp2.htm.
If you are concerned about farm safety on your operation, the National Children’s Center for Rural and Agricultural Health and Safety (NCCRAHS) recently launched a new initiative where parents and employers can find recommendations and suggestions for incorporating farm safety with farm work: http://cultivatesafety.org/.
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by Emily Enger