Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

Worst Forms of Child Labour Convention, 1999 (No. 182) - United States of America (Ratification: 1999)

Articles 3(d) and 4(1) of the Convention. Hazardous work and determination of types of hazardous work. Hazardous work in agriculture from 16 years of age. The Committee previously noted that, as an exemption from section 213 of the Fair Labor Standards Act (FLSA), in agriculture, 16 is the minimum age under section 213(c)(1) and (2) of the FLSA for employment in occupations (outside family farms) that the Secretary of Labor finds and declares to be “particularly hazardous for the employment of children”. The Committee therefore observed that section 213 of the FLSA authorizes children aged 16 and above to undertake, in the agricultural sector, occupations declared to be hazardous or detrimental to their health or well-being by the Secretary of Labor. In this regard, the Committee noted the Government’s statement that the FLSA, which was developed through a process open to the participation of employers’ and workers’ representatives, does not authorize the Secretary of Labor to restrict young persons of 16 years and older from working in agriculture. The Government, referring to Paragraph 4 of the Worst Forms of Child Labour Recommendation, 1999 (No. 190), which allows ratifying countries to permit 16 and 17 year olds to engage in types of work referred to by Article 3(d) on the condition that the health, safety and morals of the children are fully protected, stated that Congress considered it is safe and appropriate for children from the age of 16 to perform work in the agricultural sector.

However, the Committee noted the allegation of the American Federation of Labor and Congress of Industrial Organizations (AFL–CIO) that a significant number of children under 18 years were employed in agriculture under dangerous conditions, including long hours and exposure to pesticides, with risk of serious injury. Nonetheless, the Committee observed that the National Institute for Occupational Safety and Health (NIOSH) had issued recommendations for changing the existing Hazardous Orders (HOs) regarding child labour, and noted the Government’s indication that it was evaluating an appropriate course of action regarding the NIOSH recommendations on agricultural HOs for youth employment.

The Committee takes due note that, based on the recommendations of the NIOSH, the Wage and Hour Division (WHD) of the Department of Labor (DOL) published a Final Rule on child labour provisions on 20 May 2010, which revised existing HOs to prohibit children under 18 from performing certain types of work, including: (i) working in poultry slaughtering and pressing plants; (ii) forestry services and timber tract management; (iii) operating balers and compacters designed for non-paper products; and (iv) operating wood chippers.

The Committee also notes the statement in the report of the International Trade Union Confederation (ITUC), for the World Trade Organization General Council on the Trade Policies of the United States of 29 September and 1 October 2010, entitled “Internationally recognized core labour standards in the United States of America” that health and safety standards for child farm workers are severely lacking, and that from 2005 to 2008, at least 43 children died in work-related accidents in farms. In this regard, the Committee notes the statement in the document available on the website of the DOL entitled “Notice of proposed rulemaking to amend the child labor in agricultural regulations – Frequently asked questions” that “[c]hildren employed in agriculture are some of the most vulnerable workers in America. The fatality rate for young agricultural workers is four times greater than that of their peers employed in non-agricultural workplaces. Furthermore, the injuries suffered by young farm workers tend to be more severe than those suffered by non-agricultural workers. The current federal agricultural child labor rules were issued over 40 years ago and have never been updated or even revised”.

The Committee further notes the Government’s statement that it remains acutely aware of the need to fully protect young agricultural workers, including those between 16 and 18 years of age, and that it remains fully committed to continuing to ensure full compliance with the Convention, as informed by Recommendation No. 190. In this regard, the Committee notes the Government’s indication that the outreach programmes on hazardous work of the Occupational Safety and Health Administration (OSHA) prioritize employee education and awareness, focusing upon less experienced workers, such as 16 and 17 years old employees in agriculture.

The Committee notes the information in the Government’s report that the DOL had issued a Notice of Proposed Rulemaking in September 2011, containing proposals to revise the child labour agricultural HOs, as well as some non agricultural HOs. The Government indicates that the proposal, if finalized, would adopt the remaining specific NIOSH recommendations on existing agricultural HOs, to increase the parity between agricultural and non-agricultural child labour prohibitions. This proposal would create an HO to prohibit the employment of persons under the age of 18 in occupations in farm product and raw materials wholesale trade industries such as work in country grain elevators, grain bins, silos, feed lots, feed yards, stockyards, livestock exchanges and livestock auctions. Additionally, this proposal includes several revisions to existing agricultural HOs, such as prohibiting hired farm workers under 16 years of age from: the planting, cultivating, topping, harvesting, baling, barning, and curing of tobacco; any work that falls within the Environmental Protection Agency classification of pesticide handler; occupations involving working inside a manure pit; work in the agricultural sector such as construction, wrecking and demolition and excavation; certain tasks involving working with or around animals; and operating all power-driven machines.

However, the Committee notes with serious concern that this proposed rule was subsequently withdrawn in April 2012. The Committee, therefore, strongly urges the Government to reconsider the withdrawal of the proposals contained in the Notice of Proposed Rulemaking of 2 September 2011, which would have increased the parity between agricultural and non-agricultural child labour prohibitions by prohibiting some tasks associated with agricultural work to children under 18 and strengthening the protection provided to children under 16 years working in agriculture. In this regard, the Committee urges the Government to take the necessary measures to ensure that young persons between 16 and 18 years of age working in agriculture are only permitted to perform work in accordance with the strict conditions set out in Paragraph 4 of Recommendation No. 190, namely that their health and safety is protected and that they receive adequate specific instruction or vocational training. It requests the Government to provide information on progress achieved in this respect, in its next report.

Article 4(3). Examination and periodical revision of the types of hazardous work. The Committee previously noted that the HOs determining the types of work prohibited to children under 18 were originally adopted in 1939 and 1960 for non-agricultural occupations and in 1970 for agricultural occupations. The Committee also noted that, pursuant to an inter-agency agreement between the WHD and the NIOSH, the NIOSH had issued several recommendations regarding revising the existing HOs to better protect children from particularly hazardous work. The Committee requested the Government to take immediate measures to ensure that the NIOSH’s recommendations for revising the existing HOs were pursued and that the amendments to the HOs were adopted pursuant to these recommendations.

The Committee notes with satisfaction that the Final Rule on child labour provisions published by the WHD in May 2010, based on the recommendations of the NIOSH, revised seven existing non-agricultural HOs to prohibit children under 18 from performing additional types of work, including: the tending, riding upon, working from, repairing, servicing, or disassembling an elevator, crane, derrick, manlift (including of truck- or equipment-mounted aerial platforms known as scissor lifts, boom-type mobile elevating work platforms, work assist vehicles, cherry pickers, basket hoists, and bucket trucks), hoist, or high-lift truck (including backhoes, front-end loaders, skid loaders, skid-steer loaders, bobcat loaders, and stacking trucks); cleaning power-driven meat processing equipment; operating power-driven hoists; and operating reciprocating saw and abrasive cutting disks.

Articles 5 and 7. Monitoring mechanisms and penalties. Hazardous work in agriculture. The Committee previously noted the AFL–CIO’s indication that an estimated 100,000 children suffer from agriculture-related injuries annually in the United States and that very few inspections take place in agriculture. The Committee also expressed its concern at the decreasing number of child labour investigations conducted in the agricultural sector. However, the Committee noted the Government’s indication that the WHD intended to hire additional wage and hour inspectors. The Committee urged the Government to take measures to ensure that the necessary monitoring mechanisms are in place so that all farms are inspected and monitored and provide information on the inspections carried out in this regard.

The Committee notes the information in the Government’s report that the WHD has hired more than 300 new investigators since the summer of 2009. The Government states that more than half of the WHD’s 1,000 investigators speak a language in addition to English, improving the Division’s capacity to reach some of the more vulnerable workers in the workforce with limited English proficiency. The Government indicates that with these added resources, WHD investigators have been able to conduct agricultural investigations on evenings and weekends, when children are most likely to be working in the fields. The Committee also notes the Government’s statement that the WHD is now able to issue steeper fines for child labour violations that cause the death or serious injury of any employee under 18 years of age. In this regard, the Committee notes with interest that the Final Rule on child labour provisions of 2010 amended the child labour civil money penalty to provide for up to US$50,000 for each violation that causes the death or serious injury of an employee under 18 years of age (which can be doubled if the violation is repeated or wilful). Prior to the 2008 amendment, the maximum civil money penalty that could be assessed for any child labour violation was $11,000.

The Committee further notes the detailed information in the Government’s report regarding concluded cases in which child labour violations were found. The Government indicates that there were 887 such cases in 2009, 684 cases in 2010 and 720 cases in 2011. The total child labour civil monetary penalties assessed were $4,031,564 in 2009, $2,120,472 in 2010 and $2,159,699 in 2011. Moreover, the Government indicates that the total number of minors found working in these cases (in violation of the FLSA) was 3,448 in 2009 (including 109 in the agricultural industry), 3,333 in 2010 (including 49 minors in the agricultural industry) and 1,873 in 2011 (including 29 minors in the agricultural industry). The Government states that although the number of minors found employed in agriculture in violation of the FLSA declined between 2009 and 2011 (from 109 minors in 2009 to 29 minors in 2011), the WHD’s enforcement hours in agriculture increased by approximately 8 per cent from 2009 to 2010 and by approximately 1.3 per cent from 2010 to 2011.

In addition, the Committee notes the Government’s statement that the WHD is engaging local communities, social service agencies and state migrant education consultants to provide an alternative to work for children whose parents are in the fields and to provide education on child safety. For example, the Committee notes the Government’s indication that, as a result of the extensive child labour law violations found during the 2009 blueberry harvest season, the WHD implemented the 2010 Blueberry Harvest Initiative. This Initiative constituted an enforcement programme which received considerable media coverage and contributed to employers taking steps to ensure that children were not working in the fields. Moreover, the Committee notes the Government’s indication that protecting children at work, including 16 and 17 years olds employed in agriculture, is an important aspect of OSHA’s mission, and that OSHA continues to target its enforcement efforts in areas where injuries and accidents are most serious, many of which involve young agricultural workers. The Government’s report indicates that OSHA participated in more than 300 outreach events in the first half of 2011 which focused on children under 18 years. The Government indicates that OSHA’s Heat Illness Prevention campaign (directed towards agricultural and construction workers) includes a special focus on outreach to new workers, like young agricultural employees, and that the Grain Handling Initiative, implemented by OSHA since 2008, significantly increased enforcement and inspection activities within this industry, to reduce accidents and fatalities, including for workers under 18 years of age. Taking due note of the measures taken, the Committee urges the Government to pursue its efforts to strengthen the capacity of the institutions responsible for the monitoring of child labour in agriculture, to protect child agricultural workers from hazardous work. It requests the Government to continue to provide information on measures taken in this regard, and on the results achieved.

The Committee is raising other points in a request addressed directly to the Government.