DOL’s Wage Arm Vows Child Labor Focus Despite No Rule Changes

Democrats and safety organizations want the US Labor Department to go further in its child labor enforcement efforts by revisiting certain limits on the types of jobs minors can work, but the Biden administration says it doesn’t have the rulemaking bandwidth to take on such an update.

Advocates have met with the US DOL’s wage regulator four times in recent months, urging them to revisit its Hazardous Occupation orders, which limit the types of job duties minors can conduct like prohibiting use of meat slicers or certain equipment. Democratic lawmakers have also pressed the agency to address its rules protecting minors at work, noting they are woefully outdated and haven’t been updated since the 1970s.

In just the last four months, recent cases have uncovered that at least 50 children were working with dangerous chemicals to clean meatpacking plants overnight, and that kids as young as 13 were manufacturing auto parts—reinforcing callson the Biden administration to strengthen the rules protecting kids while they’re at work.

“We have been very concerned about the lack of action that has occurred through multiple administrations on the Hazardous Occupation Orders,” said Reid Maki, director of Child Labor Issues and coordinator at the Child Labor Coalition. “We’ve been urging the Department of Labor under the Biden administration to open that door and start trying to fix these regulations.”

But, the leader of the Wage and Hour Division told Bloomberg Law that while employers should expect the Biden administration’s beefed up enforcement focus on child labor violations to continue, updates to its Hazardous Occupation Orders aren’t on its regulatory agenda.

“We’re always analyzing what is hazardous and how we need to respond to that. We don’t currently have on our regulatory agenda to engage in rulemaking around child labor,” Jessica Looman, principal deputy administrator of the Wage and Hour Division, said in an interview.

“Again, we are really very much focused on the outreach, education, and the enforcement role that we have in this space right now,” she said. “But, I’m not saying that we wouldn’t look at it or that we shouldn’t look at it, it’s just not currently on our regulatory agenda.”

Enforcement

The DOL’s wage arm, which is in charge of policing the limits under the Fair Labor Standards Act governing when minors can work, how long minors can work, and the tasks minors can do at work, has seen about a 50% increase in child labor violations since 2018, according to Looman.

In FY 2022, there were 835 cases involving child labor violations and 3,876 minors employed in violation of child labor laws, an uptick from the 747 cases and 2,819 minors working in violation in FY 2021, according to DOL data.

Since the start of the Biden administration, the DOL has issued at least 38 press releases involving child labor enforcement cases.

In one instance, the DOL in December 2022 secured a consent order against a cleaning company, Packers Sanitation Service Inc. Ltd., for allegedly hiring 50 underage workers to clean meatpacking plants—violating its hazardous occupation limits for minors by exposing them to chemicals and certain machinery. And in October 2022, DOL got a court to force an Alabama auto-parts manufacturer for Hyundai and Kia to stop employing 13-, 14- and 15-year-old workers.

Other cases have focused on prohibitions on working hours, for example, a Pennsylvania Dunkin’ franchisee was fined $24,000 in September 2022 after allowing 14- and 15-year-olds to work more than three hours a day on a school day and past 7 p.m. on school nights, among other child labor violations.

“Unfortunately we’re seeing kids working too many hours. We’re seeing kids working with equipment that they shouldn’t be working with,” Looman said of the division’s child labor enforcement work broadly. “But we really see in that space, the opportunity to do more outreach and education, to work with employers and supervisors and line chiefs to make sure that they understand what the limitations are, frankly, when they’re working with kids.”

The division is also working with schools, trade associations, and community organizations to educate kids and employers about the restrictions, and to better understand what is happening in sectors that employ minors, noting that the division doesn’t often get complaints about child labor violations, Looman said.

Fluctuations in child labor violations tend to parallel the state of the labor market and the demand for workers, noted Paul DeCamp, a Wage and Hour administrator during the George W. Bush administration, adding that the economy is still recovering from the pandemic.

“It’s tempting to look at the year to year fluctuations in the numbers and try to draw conclusions about those but I think the year to year variations really are more about what’s going on with the economy,” said DeCamp, now a management-side attorney with Epstein Becker & Green PC. “When unemployment is high, and people are looking for work, there’s usually lower employment of minors.”

While not a direct client, DeCamp submitted an expert declaration in the Packers Sanitation Services litigation.

Stricter Rules

Maki of the Child Labor Coalition said that President Joe Biden has taken a more robust approach to policing child labor than the Trump administration. The wage division seems “to be catching even some industrial factory child labor, which hasn’t really been very commonly found in the last, let’s say, 20 years or so,” he said. “We’re seeing a slightly wider variety of enforcement activities” in the child labor space, he added.

But in the agricultural sector, Maki said enforcement hasn’t met his expectations from the Biden administration—which promised to be the most pro-worker, pro-labor administration in modern history.

“It’s very hard to do those investigations, but we suspect that there are some violations out there that could be caught,” Maki said.

Under current rules, minors who are at least 16 years old may perform any farm job without limits, even during school hours. Minors who are at least 14 years old may work outside school hours, but not perform work deemed hazardous by the labor secretary. Kids working on farms owned or operated by their parents don’t have to follow those rules at all.

The pressure for the DOL to update its child labor rules, especially in agriculture, has been building for some time.

In July, more than three dozen Democrats signed on to a letter urging the Biden administration to put more restrictions on the types of jobs children can work, citing a 2018 report from the Government Accountability Office that found that more than half of work-related fatalities among kids occurred in agriculture. And in 2002 the National Institute for Occupational Safety and Health said the DOL needed to modernize and expand its hazardous occupation limits to better protect children at work—a recommendation that still stands.

The Obama administration considered updating the hazardous occupation orders in 2011, proposing to, among other things, ban children from working in tobacco fields — something advocates and Democrats want from the Biden administration now. But the Obama DOL eventually scrapped the rulemaking, citing concerns about the disruption it could cause to family farms.