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Gov. Sarah Huckabee Sanders of Arkansas signed a bill this month rolling back the state's child labor protections, making it easier for employers to hire children under 16. Elsewhere, bills to allow 14- and 15-year-olds to work in meatpacking plants and other dangerous jobs in Iowa as part of training programs and 16- and 17-year-olds to take jobs at construction sites in Minnesota are under consideration.
These enacted and potential rollbacks are happening just when the country is experiencing a surge of child labor violations on a scale and of a type that we hadn't heard about for many years. Laws in the U.S. prohibit certain very dangerous work for minors, but recent investigative reporting by the New York Times and Reuters has exposed migrant children as young as 12 working at car factories, meat processors and construction sites; household-name companies generally avoid liability through the use of sometimes sketchy subcontractors and staffing agencies.
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U.S. child labor: An old problem pops up again
Labor agency data released in February showed spikes in the number of children being employed illegally by companies. The U.S. Labor Department said last month that it saw a 69% increase since 2018; it found that in the last fiscal year, 835 companies employed more than 3,800 children in violation of federal labor laws. Child labor violations include not only situations involving hazardous work, but also less shocking yet still deeply troubling cases by more typical employers of teens, with minors of varied demographics working schedules far longer and later than what's legally permissible. Chipotle Mexican Grill, for instance, has been accused of numerous violations: The company paid a total of more than $9 million as settlements for alleged child labor violations in Massachusetts and New Jersey in 2020 and 2022.
What's going on here, and why is this happening now?
And when child labor violations come to light, especially horrifying ones, shouldn't elected officials strengthen laws and fund enforcement rather than allow more children to be exploited?
Facing a labor shortage that could have been avoided, it appears that some business interests and lawmakers would prefer to expand the pool of exploitable workers to vulnerable children rather than improve working conditions to attract age-appropriate employees. This is shameful and should immediately stop. For their part, government leaders at all levels should shore up workplace protections and adequately fund enforcement.
The U.S. labor shortage that has employers scrambling should not be a surprise; it's a foreseeable result of policy decisions of recent years, specifically related to COVID-19 and immigrants.
Many employers, especially in low-wage industries, were cavalier with their workers' health and lives, failing to provide personal protective equipment or improved ventilation. Government enforcement agencies didn't do enough to safeguard workplace safety, especially in COVID's early days, when the Occupational Safety and Health Administration response, in the view of many labor organizations, was wholly inadequate.
Predictably, these policies reduced the available labor force. More than 1.1 million people in the U.S. have died of COVID, according to the Centers for Disease Control and Prevention (with many likely unreported), and long COVID is keeping as many as 4 million people out of work. The labor force participation rate sharply declined (by around 2 million people) among those 65 and older, who face greater vulnerability to complications and death from COVID.
The labor market shortfall also results in part from a decline in immigration and an increase in out-migration, predictable results of anti-immigrant attitudes and policies. In 2015 and 2016, net migration to the U.S. exceeded a million per year. Those numbers declined steadily starting in 2017 (landing around 376,000 in 2021, although the number seems to be increasing again). Even now, the U.S. is admitting far below its annual ceiling of refugees. Refugees, like asylum seekers, are eligible for work permits and should be attractive employees.
The shortage, then, is mostly of our own making. Facing this situation, employers could lure people back to the work force by offering better conditions. Indeed, research published in 2022 showed that those surveyed would take meatpacking jobs if they paid just a little better, around $2.85 more per hour. Benefits like health insurance, retirement benefits and signing bonuses also would encourage them.
But raising wages for workers, providing benefits and giving signing bonuses would mean slimmer profits, representing concessions to workers' slightly increased bargaining power during our current tight labor market. Instead, some employers and some business interests are turning to the most vulnerable and exploitable work force around: children.
Of course, it's good for teenagers to have jobs. They can gain responsibility and learn a lot in their first forays into the world of work. What the law prohibits is oppressive labor conditions that interfere with teenagers' physical and educational well-being by requiring excessively long work hours or exceedingly dangerous work. Workers under the age of 25 are injured at disproportionately high rates.
Government leaders should do everything in their power to stop the swell of child labor violations. Most attention to date has focused on the Biden administration, which has announced a plan that includes the creation of a task force, the use of all available enforcement tools and a Department of Health and Human Services audit of policies on migrant children's placement, plus requests for more enforcement funding and higher child labor penalties. (The maximum first-time penalty is about $15,000 per child.) But there's more for all levels of government to do.
Stronger workplace laws are sorely needed at the state and local levels. Increasing penalties is a good start; some state penalties are absurdly puny. (Colorado's penalty for a first-time child labor violation is $20 to $100.)
But even the highest penalties are irrelevant if businesses believe there's virtually no chance they'll get caught, which is why far greater funding is needed for labor enforcement. The Department of Labor's wage and hour division has been starved for funds for years. State labor enforcement resources are also typically minimal relative to needs, and sometimes they don't even exist.
Laws should also hold corporations responsible and not allow them to deflect responsibility to subcontractors or staffing agencies for child labor violations that happen while making their products. These corporations are the entities most able to prevent child labor; they can terminate contracts, hire third-party compliance monitors or use their own employees.
Legislatures could create strict liability — meaning absolute liability, regardless of knowledge or intent — for child labor violations in company supply chains. For example, in Maryland, Nevada, New York and several other states, construction industry general contractors are liable for wage violations by subcontractors, and in Washington, D.C., higher-level entities are liable for wage and paid sick leave violations even if they use a staffing agency or subcontractor.
Lawmakers should also create criminal liability for violations or enhance it where it exists. In Illinois, New York, Utah and Texas, for example, child labor violations are misdemeanors. These crimes should be upgraded, but prosecutors should still bring cases against employers even under current law.
The federal government has pledged to use the "hot goods" provision in the Fair Labor Standards Act, which allows it to enjoin the transport of goods made in violation of the law, including child labor laws. States can pass similar laws or replicate a little-known but clever New York law, applicable to the garment industry, that allows the state labor department to attach a tag on unlawfully manufactured apparel labeling them as such, which would no doubt hurt sales. The Department of Health and Human Services audit of how it places unaccompanied migrant children will undoubtedly show the need for better vetting of sponsors and better follow-up after placement. Also, granting work permits to these teenagers would help by allowing them to earn money with aboveboard employers that follow the law.
States and cities can form their own task forces and collaborate closely with local districts. They can also aggressively enforce child labor laws, as Minnesota authorities did this month at a meatpacking plant. And labor enforcement agencies can do what the New York Times reporter Hannah Dreier did: request information from the federal government about where unaccompanied minors were living and stake out sites where children may be working.
Even arguing about whether 14-year-olds should work in meatpacking plants, as though it were an appropriate subject for legitimate political debate, runs the risk of normalizing a practice that should be totally out of bounds. We need higher wages, safer workplaces and all-around better jobs. What we don't need — and it's outrageous we're even discussing it — is more oppressive child labor.
Terri Gerstein is a fellow at the Center for Labor and a Just Economy at Harvard Law School and the Economic Policy Institute. She spent more than 17 years enforcing labor laws in New York State, working in the state attorney general's office and as a deputy labor commissioner. This article originally appeared in the New York Times.