May 10, 2023
There is More Work to Be Done to Eliminate Oppressive Child Labor
Fellmeth-Peterson Associate Professor in Child Rights at the University of San Diego School of Law
This piece is the second in a month-long blog series that celebrates Labor History Month and examines how the labor movement’s past struggles and victories can inform the present fight for workers’ rights.
“[I]f there is any matter upon which civilized countries have agreed…it is the evil of premature and excessive child labor." - Justice Oliver Wendell Holmes Jr.
Child labor has long been a source of exploitation, injury, and death among youth in the United States. Where it hasn’t caused physical or psychological harm, it has kept children from being educated and limited their future potential. Many assume that the scourge of child labor is a relic of the past, but the exploitation continues, particularly in the wake of pandemic-related labor shortages, and particularly among children of low-income and migrant families.
In the early 20th century, Congressional efforts to protect children from excessive and harmful labor were thwarted by the Supreme Court. Congress responded by passing an amendment to the Constitution to empower the federal government to regulate in this area. The fact that the Child Labor Amendment (CLA) has not been ratified by enough states illustrates the challenges commonly faced when government seeks to protect children — strong deference to states’ and parents’ rights and the outsized influence of business interests in our political system.
Today, child labor is subject to regulation by both federal and state law. However, the existing regulatory framework has proven to be inadequate. Regulations include exceptions and loopholes, and enforcement is insufficient. Recent reports reveal children as young as twelve working long hours in dangerous places such as factories, tobacco fields, and meat-processing facilities, often in violation of federal law. For example, in a 2022 brief filed by the U.S. Department of Labor in support of an injunction against Packer’s Sanitation Services, the Department reveals:
- children as young as thirteen working overnight shifts, falling asleep in class and missing school as a result
- children suffering serious chemical burns from using chemical cleaners
- children working on a slaughterhouse “kill floor” cleaning heavy, dangerous machinery, including head-splitters, meat pullers, skinners, and bandsaws.
At the same time, several states have begun to roll back their existing child labor laws. With the threatened weakening of state protections and the inadequacy of federal regulation, there is renewed interest in completing the ratification of the CLA. What seemed like a largely symbolic effort just a few years ago may have far greater significance in our modern society than previously assumed.
The Need for an Amendment
In 1924, Congress passed the CLA and submitted it to the States for ratification. The text of the CLA was straightforward, requiring nothing more than permitting Congress the authority to regulate child labor.
Section 1. The Congress shall have power to limit, regulate, and prohibit the labor of persons under eighteen years of age.
Section 2. The power of the several States is unimpaired by this article except that the operation of State laws shall be suspended to the extent necessary to give effect to legislation enacted by the Congress.
Thus, the CLA would allow Congress to set a minimum floor of protection, with States remaining free to enact stronger protective regulations.
Predating the proposed Amendment, many states had enacted their own child labor protections. However, the laws varied among the states, allowing businesses to avoid those with stricter regulation, and enforcement was consistently lacking.
In 1916, the federal government attempted to regulate child labor, with Congress passing the Keating-Owen Child Labor Act, banning the sale of products derived from child labor. The U.S. Supreme Court struck down the law, finding it beyond Congress’s authority to regulate interstate commerce. Congress soon tried again, imposing a tax on profits earned on goods produced by child labor. This provision met a similar fate in the Court.
As Congress struggled to regulate child labor, an increasing number of young children were working excessive hours under hazardous conditions. As the Chief of the Children’s Bureau noted in 1924, children continued to labor in steel mills, garment industry sweatshops, and even coal mines. In some areas of the country, as many as a quarter of all children ages 10–15 were at work in these and other occupations. With federal efforts stymied by the Supreme Court, an endorsement by the states to empower Congress to regulate seemed necessary. Moreover, several Constitutional amendments had recently been ratified, in relatively short order. The time seemed ripe to utilize this strategy in the interest of children.
The Stalling of the Amendment
When Congress passed the CLA in 1924, it was typical for state legislatures to respond positively and quickly to new amendments, providing few challenges to ratification. However, the CLA received a colder response from the states than expected. Industries that relied on child labor, including the textile industry and agriculture, bolstered the opposition. These interests successfully touted state’s rights and parental rights, stoking fear regarding federal government intrusion into something as integral to family and local communities as labor. The broad language of the amendment did nothing to quell that concern; however, broad language was necessary to overcome the limitations previously imposed by the Court.
The CLA ultimately garnered support in only 28 of the 36 states required for ratification. Continued efforts in support of the Amendment diminished following enactment of the federal Fair Labor Standards Act (FLSA) in 1938, which included the prohibition of “oppressive child labor.” The FLSA was challenged in the Supreme Court, as previous legislation had been, but this time Congress prevailed.
The FLSA and its regulations generally prohibit employment of youth under 16, except by parent or guardian, and the employment of youth under 18 in any hazardous work. Youth ages 14 and 15 can work outside school hours under certain conditions and subject to time limitations, but are prohibited from engaging in manufacturing or hazardous work. Youth under 14 can only work jobs exempt from the Act, such as paper delivery or babysitting.
There are looser standards under the FLSA with regard to agricultural employment, allowing minors 16 and older to perform any farm job at any time, even if considered hazardous. Children as young as 12 may work on a farm outside school hours with parental consent. Children of any age may be employed by their parent or guardian at any time, in any work activity, on a farm owned by the parent or guardian.
These provisions of the FLSA have provided the framework of child labor regulation for generations of children, largely relegating the CLA to the annals of history—until recently.
A Renewed Effort to Ratify the Child Labor Amendment
The FLSA has not been a panacea. Its permissive standards related to agriculture have allowed children to work in environments detrimental to their health without any legal protections. Enforcement of the protections that do exist is challenging, with an insufficient number of federal inspectors engaged in monitoring and investigating. Even so, the Department of Labor reported an increase of 283% in the number of children employed in violation of child labor laws between 2015 and 2022. It is understood that many more violations occur that never come to the attention of the Department. When violations are identified, penalties are often minimal and unlikely to disincentivize employers from hiring young workers.
Even as violations of federal child labor laws increase, there is a trend among mostly conservative states to loosen their own child labor regulations. In Arkansas, a recently enacted law eliminates age verification requirements for employers. In Iowa, a bill was introduced to allow 14 and 15-year-olds to work in meat coolers and to protect employers from civil liability for injury, sickness, or death while engaged in work-based learning. A Minnesota bill would allow youth 16 and up to work in construction. Several other states have proposed extending work hours for youth and lowering the minimum age for workers in certain sectors.
In light of these developments, advocates have renewed the effort to ratify the Child Labor Amendment. Although the effort stalled in 1937, the CLA is still officially pending and remains only ten states short of the required number of states to ratify. Some states, including New York, Rhode Island, Hawaii, and Nebraska, have recently introduced resolutions to ratify the CLA. Most recently, the Minnesota legislature introduced HF 3275 on April 20, 2023, reaffirming its ratification of the Amendment.
The suffering of children we are witnessing today is reminiscent of what led Congress to pass the Child Labor Amendment almost one hundred years ago. Although ratification may seem unnecessary in light of the FLSA, this legislation passed eighty-five years ago may not be capable of providing critical protection for children today. Ratification of the CLA could pave the way for more meaningful and effective federal action as states threaten to prioritize special interests over children. Even if the effort is viewed as largely symbolic, it would be a powerful and historically significant statement of this nation’s commitment to children’s rights.
Jessica K. Heldman is the Fellmeth-Peterson Associate Professor in Child Rights at the University of San Diego School of Law.