The Biden administration recently announced an initiative to investigate and enforce violations of existing federal child labor laws. But a handful of states have moved in the other direction, taking steps to alter restrictions on child labor in order to expand the ability of children to work outside of school.

With often competing requirements at the state and federal level, employers seeking to avoid liability for child labor issues need to monitor ongoing developments and comply with the most restrictive law that applies to their business.

The Federal Crackdown

The recent federal initiative promises more aggressive investigations of, and accountability for, companies benefiting from illegal child labor, even if those companies do not employ the children directly.

Federal child labor laws, authorized by the Fair Labor Standards Act of 1938 (FLSA), were enacted to ensure that children and young people work in safer occupations that do not jeopardize their well-being or educational opportunities. The restrictions—including types of jobs and number of hours a minor may work—vary by age.

Over the years, the U.S. Department of Labor (DOL) has refined the list of job duties considered hazardous and therefore not available to minor workers. In addition, every state has a child labor law that regulates the conditions under which employers may hire children and young people, as well as a compulsory school attendance law.

In a joint announcement on Feb. 27, the DOL and U.S. Department of Health and Human Services (HHS) cited an increase in children being employed illegally. According to the DOL, since 2018, it has seen a 69% increase in unlawful child labor. The DOL and HHS also concluded that the current maximum penalty—$15,138 per child—is not a sufficient deterrent for large corporations and called on Congress to increase that penalty. In their announcement, the DOL and HHS specifically referenced the influx of migrant children from Latin America, the majority of whom are unaccompanied and do not have a parent in the United States, as being a population of children particularly susceptible to exploitive child labor.

The joint announcement came on the heels of the DOL’s Feb. 17 announcement of a significant child labor case. The case involved one of the nation’s largest food safety sanitation services providers that employed over 100 children from the ages 13 to 17 who worked in meat processing facilities across eight states. The DOL’s investigation found that some children were working with hazardous chemicals and dangerous meat processing equipment. Some minors worked overnight shifts and others sustained injuries. The DOL assessed a civil penalty against that sanitation service provider of $15,138 for each of the approximately 100 children employed in violation of the law.

To address the sweeping issues around child labor violations and concerns with the sponsorship process for unaccompanied minors, the DOL and HHS noted in the joint announcement the following key actions that will impact employers:

• The DOL will lead an interagency task force to combat child labor exploitation. Notably, the task force will enable HHS to apply more scrutiny in the sponsor-vetting process.
• The DOL’s wage and hour division will use data-driven strategies to conduct investigations where child labor violations are most likely to occur. It is unclear from the announcement whether the data will be used to predict the frequency of potential violations on a geographic or industry basis. The division, in conjunction with the Office of the Solicitor, will have available all enforcement tools, including penalties, injunctions, stopping the movement of goods made with child labor and criminal referrals as necessary.
• Perhaps most significantly, the DOL will hold all employers accountable to remove unlawful child labor from supply chains, including those companies that work with staffing agencies or subcontractors to supply their workers. The DOL promises to apply further scrutiny to those employers and increase corporate accountability for abuses of child labor laws.
• Finally, the DOL is calling upon Congress to increase funding for its wage and hour division and the Office of the Solicitor to investigate child labor cases, and to increase civil monetary penalties, strengthen anti-retaliation protections for those who report child labor law violations and investigate corporations violating those laws. In response, many U.S. representatives and senators have proposed legislation that would increase the maximum fines for violations and establish new criminal penalties to deter illegal child labor.

In addition to these employment-related actions, HHS will mandate follow-up calls for unaccompanied migrant children who report safety concerns, expand its post-release services and conduct an audit of the vetting process for potential sponsors who have previously sponsored an unaccompanied child.

Since its joint announcement, as part of its heightened enforcement, the DOL has imposed penalties on employers staffing minors in hazardous occupations or for excessive hours. On March 23, the DOL and HHS entered into a memorandum of agreement to advance their efforts to address child labor law violations and help identify geographies and employers where children are likely being exploited.

Conflicting Trends in the States

In response to the joint announcement, at least one state—New York—has encouraged employers in hospitality, restaurants, fast food, and physically taxing industries like manufacturing, food processing, construction, farming and landscaping to educate their employees on labor rights and the signs of labor trafficking. An Illinois bill is designed to reduce the number of hours that teenagers can work. A bill in Colorado would allow minors to sue their employers directly for work-related injuries incurred through illegal child labor in addition to any workers’ compensation remedies.

While the DOL and HHS and certain states seek to expand protections for children and punish employers that violate child labor laws, some state legislatures are focused on easing child labor restrictions. At least seven states, Arkansas, Georgia, Iowa, Minnesota, Missouri, New Hampshire and Ohio, have announced efforts to alter restrictions on child labor to expand the ability of children to work outside of school. The often-cited rationale for these amended child labor laws is to address labor shortages.

In March 2023, Arkansas Gov. Sarah Huckabee Sanders signed HB1410, dubbed the “Youth Hiring Act of 2023,” into law. The law repealed and replaced an Arkansas statute that required employers to keep on file employment certificates for workers under age 16 that verified their age, the nature of their work and parental consent. The Youth Hiring Act of 2023 ended those requirements in order to “streamline the hiring process” for employees younger than 16, who no longer need to provide proof of their age as a condition of employment.

Also in March, the Ohio Senate passed Senate Bill 30, which would allow children to work later hours. Specifically, SB30 would allow 14- and 15-year-old children to work until 9 p.m. year-round. Currently, the federal law bars 14- and 15-year-olds from working past 7 p.m., except during summer months. When the Ohio Senate passed SB30, it also passed a concurrent resolution, SCR2, urging the U.S. Congress to change the FLSA to allow 14- and 15-year-olds to work until 9 p.m. The rationale for the bill to ease labor shortages within Ohio.

The recent efforts of Arkansas, Ohio and other states that seek to ease restrictions on child labor appear to be in direct conflict with the efforts of DOL and HHS and existing federal law. Some pundits view it as an effort by states that are experiencing labor shortages to weaken state standards and push for amendments to existing federal child labor regulations. For now, employers that are covered by the FLSA and operating in states with child labor laws that conflict with federal requirements would be well-advised to continue to comply with more protective federal standards.

In addition, employers that work with staffing agencies and subcontractors to supply their workers must remain vigilant to ensure that appropriate screening is used to eliminate illegal child labor. The DOL has vowed that a lack of direct knowledge of the use of illegal child labor will not be sufficient to shield employers benefitting from the practice from enforcement action.

Accordingly, employers are strongly encouraged to immediately ensure that the ages of their workers and the employees’ ability to work lawfully in the United States are properly documented, and that the hours and work assignments of minor employees comply with state and federal law.

Reprinted with permission from the April 26, 2023 issue of The Legal Intelligencer© 2023 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.