State Child Labor Rollbacks Pose Enforcement Nightmare for DOL

The Biden administration has limited tools to fight child labor violations in Iowa, where a Republican state legislature just enacted a statute that would allow kids to work in conditions that are illegal under federal law.

While top officials from the US Labor Department have said that the bill signed by Gov. Kim Reynolds (R) last month violates federal protections that trump state rules, the agency hasn’t outlined any specific plan to boost enforcement in Iowa, or in other states loosening child labor restrictions.

The DOL may not act anytime soon. The agency can educate the public about the law and use its extremely limited resources to focus its enforcement in states. But it can’t compel state labor officials in Iowa, or any other state with child labor laws more permissive than federal law, to enforce federal rules on their own, according to labor attorneys.

Bloomberg Law sent multiple requests for comment to the Labor Department inquiring about forthcoming guidance or enforcement initiatives targeting Iowa or other states weakening child labor laws. The agency said in a statement that it “monitors state laws” and will “enforce accordingly,” but provided no concrete assurance it would be altering its oversight plans as a result of the new Iowa statute.

DOL Limits

Effective July 1, the new Iowa law extends the hours that minors can work, limits business liability for an underage worker’s injuries, and allows teenage apprentices into jobs that have previously been deemed too hazardous, like in roofing, warehouse, and factory work.

DOL officials opined in a May 10 letter that parts of the Iowa measure conflicted with federal law, though the note was based on an earlier version of the bill.

While the Iowa legislation is the most expansive, a number of other states have passed or considered measures to roll back child labor protections, even as reports of violations and federal scrutiny have grown.

Arkansas recently repealed its work permit requirement for kids under 16, though it also passed a separate law increasing the penalties for child labor violations. An Ohio bill that passed the state Senate and is awaiting a House vote would extend the hours that 14- and 15-year-olds can work on school nights beyond what’s allowed under federal law.

“Some of these laws are obviously sending a terrible message and they are opening up the potential for abuse,” said Catherine Ruckelshaus, general counsel and legal director at the National Employment Law Project.

The DOL has limited ability on a practical level to curb any abuse in the states under its founding statute, the Fair Labor Standards Act, which also sets out federal child labor rules.

The statute does not explicitly allow the DOL to compel state agencies to do anything, including to enforce more protective federal law within state borders, according to labor law attorneys.

“In this space, federal law and state law stand apart,” said Paul DeCamp, a former Wage and Hour administrator who is now a management-side attorney with Epstein Becker & Green PC.

No Clear Strategy

The federal government says it’s struggling to keep up with an uptick in child labor violations already because of funding constraints and attrition among investigative staff. Lawmakers have also disagreed over how regulators should address the child labor issue, likely dooming any potential bipartisanship on legislation to increase agency enforcement resources.

The Biden administration announced an interagency taskforce in February to combat child labor exploitation after media coverage and agency investigations uncovered more than 100 children working in dangerous conditions overnight at meatpacking facilities across eight states. The wage division said it’s currently investigating at least 600 child labor cases.

But the Biden administration hasn’t provided details about the taskforce’s work since March.

During an oversight hearing last week, Acting Labor Secretary Julie Su appeared unable to provide any new information to lawmakers about the DOL’s efforts to combat child labor violations, which have increased by 69% since 2018, beyond the agency’s already announced work with the Department of Health and Human Services.

DOL’s limited authority over immigration enforcement has also restricted efforts to assist unaccompanied minors, who have been exploited in child labor schemes recently uncovered by the wage division.

The DOL has changed its procedures and is weighing evidence differently when looking into a potential child labor violation as a result of the number of undocumented children being found working in illegal conditions, according to a WHD enforcement official, who asked to remain anonymous to discuss agency matters.

While the DOL’s focus is heightened on child labor, its ability to remedy situations where children may be trafficked into the country stops at enforcing federal labor law, the official said.

“If we see something that looks like trafficking or looks awkward, we’re to report it,” the official said, but DOL’s authority to investigate ends there.

Work in Iowa

With the Labor Department facing an uphill battle on enforcement, state lawmakers and unions say they’re jumping in to educate employers and parents about what the FLSA requires, and to make clear that following the new rules set out by the Iowa legislature could run afoul of federal law.

“When it comes to what we do in the labor movement, education is always like the bread and butter, just getting people aware of what the changes are. So, we do plan on doing some outreach,” said Peter Hird, Secretary-Treasurer of the Iowa AFL-CIO.

Iowa state Sen. Nate Boulton (D), who opposed the changes to the state’s child labor laws, said he will seek an updated opinion letter from DOL on the final Iowa statute’s legality. He also said he hopes to develop a fact sheet that Iowa employers and parents can reference in making decisions about teenagers’ employment.

“In an ideal world, the first step would be the educational piece, and then come back in the next session and ensure there is consistency between federal and state law,” said Boulton, who said he’s proposing to have Iowa legislators revisit the child labor issue next year.

Iowa’s Department of Labor didn’t respond to a request for comment regarding any education it may be planning around the state’s child labor law.

Hird said that a federal public awareness campaign would be helpful, especially amid efforts from other states to loosen their rules for child labor.

“This isn’t over,” Hird said. “It’s concerning to see that there’s a coordinated activity out there to roll these back. And I hope the DOL puts more effort into that, they’ve been publicly talking about it a lot. But just the investment in education can go a long way.”