Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

Article 3 of the Convention. Worst forms of child labour. Clause (a). Slavery and practices similar to slavery. Sale and trafficking of children. The Committee had previously noted with satisfaction the Government’s information that, on 19 December 2003, Congress enacted the Trafficking Victims Protection Reauthorization Act (TVPRA), which reauthorized the Trafficking Victims Protection Act of 2000 (TVPA) in 2003 and 2005 and added responsibilities to the United States Government’s anti-trafficking portfolio. The TVPRA of 2003 mandated new information campaigns to combat sex tourism, enhanced anti‑trafficking protection under federal criminal law and created a new civil action that allows trafficking victims to sue their traffickers in federal district courts. The TVPRA of 2005 extended and improved prosecutorial and diplomatic tools, provided for new grants to state and local law enforcement agencies, and expanded the services available to certain family members of victims of severe forms of trafficking. The Committee had noted that, as of May 2004, the Government estimated that 14,500 to 17,500 people were trafficked annually into the United States. This estimate covered men, women and children who were victims of severe forms of trafficking as defined in the TVPA. Most trafficked victims are employed in the sex sector, migrant farm work and low-wage industries, such as the restaurant and hotel industries. The Committee had also noted several measures taken to combat trafficking in children for labour and sexual exploitation, such as additional research and studies, funding of projects and the drafting of a model anti-trafficking statute for states.

The Committee notes the information provided by the Government in its report, which, inter alia, refers to the Attorney-General’s Annual Report to Congress on US Government Activities to Combat Trafficking in Persons. According to the Attorney-General’s Annual Report of May 2007, the measures that were undertaken to combat trafficking are ongoing. In 2006, for example, the United States Government obligated approximately US$74 million to fund 154 projects in about 70 countries to support foreign government and non-governmental organizations’ efforts to combat human trafficking. Furthermore, the Government continues to adopt measures for domestic and international law enforcement training, for public awareness campaigns and street outreach, as well as for the provision of social services to trafficking victims. The Committee strongly encourages the Government to pursue its efforts to eliminate the trafficking of children under 18 years of age for labour and sexual exploitation. It requests the Government to continue providing information on the measures taken in this regard and the results attained.

Article 3(d) and Article 4, paragraph 1. Hazardous work. The Committee had previously noted the AFL-CIO’s indication that between 300,000 and 800,000 children are employed in agriculture under dangerous conditions. Many work for 12 hours a day and are exposed to dangerous pesticides, suffer rashes, headaches, dizziness, nausea and vomiting, often risking exhaustion or dehydration due to lack of water, and are often injured. The Committee had noted that, as an exemption from section 213 of the Fair Labour 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”. It had observed that, while Article 4, paragraph 1, of the Convention allows the types of hazardous work to be determined by national laws or regulations or the competent authority after consultation with the social partners, 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.

The Committee had noted that, according to the AFL-CIO and the National Institution for Occupational Safety and Health (NIOSH), during the period from 1992 to 1997, a total of 403 children under 18 years were killed while working. One third of the occupational deaths were associated with tractors. The industry that had by far the highest number of fatalities – 162, or 40 per cent – was agriculture, forestry and fishing, even though only 13 per cent of children under 18 worked in this sector. This high rate of fatal injuries was confirmed by the fact that youth of 15–17 years of age working in agriculture appear to have over four times the risk of injury than youth working in other industries. The AFL-CIO had pointed out that, according to the General Accounting Office (GAO) “Pesticides: Improvements Needed to Ensure the Safety of Farmworkers and their Children” of 2000 (GAO’s report of 2000), over 75 per cent of pesticides are used in agriculture and children are much more vulnerable to harm from pesticides. However, eventual changes to Hazardous Orders (HOs) could not be expected to have an impact on the injuries of young workers of 16 and 17 years who fall outside the coverage of the FLSA.

The Committee had 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. Moreover, in determining types of hazardous work pursuant to Article 3(d) and Article 4, paragraph 1, of the Convention, Paragraph 4 of the Worst Forms of Child Labour Recommendation, 1999 (No. 190), allows ratifying countries to permit 16- and 17‑year-olds to engage in types of work referred to by Article 3(d) on conditions that the health, safety and morals of the children are fully protected. Therefore, the Congress had determined that it is safe and appropriate for children at 16 to perform work in the agricultural sector, in conformity with Article 3(d) and Article 4, paragraph 1, of the Convention. The Committee had noted the Government’s statement that it continues to seek ways to better protect the health and safety of children working in the agricultural industry and had noted the several programmes adopted for that purpose, including programmes to protect farm workers and their children from pesticides, such as the Environmental Protection Agency’s (EPA) review of the Worker Protection Standard (WPS), launched in response to the GAO’s report of 2000.

With regard to this programme, the Committee notes the Government’s information that the work of the WPS assessment is ongoing and that new regulations should be proposed in 2008. Furthermore, on 3 April 2006, the administrator of EPA issued a response to a review of pesticide-related health risks to farm workers made by the Children’s Health Protection Advisory Committee (CHPAC). The CHPAC raised concern about farm workers under the age of 16 handling certain pesticides, and the EPA agreed that an age limitation on pesticide-handling activities is worthy of consideration. The Committee further notes that the CHPAC also expressed concern that EPA labelling requirements do not address fit-testing for young workers aged 16 and above who need to use respirators in handling pesticides.

The Committee notes that, according to the worker member of the United States at the Conference Committee on the Application of Standards at the 95th Session of the International Labour Conference of June 2006, among
15–17-year-olds, child workers in agriculture accounted for at least 25 per cent of all fatalities experienced by young workers. The Committee once again shares the concern expressed by many speakers with regard to the hazardous and dangerous conditions that were and could be encountered by children under 18, and indeed in some cases under 16, in the agricultural sector. Consequently, the Committee emphasizes that, by virtue of Article 3(d), work which, by its nature and the circumstances in which it is carried out, is likely to harm the health, safety or morals of children, constitutes one of the worst forms of child labour and applies to all young persons under 18 years of age. It also recalls that Paragraph 4 of Recommendation No. 190 addresses the possibility of authorizing the employment or work of young persons as from the age of 16 under strict conditions that their health and safety be protected and that they receive adequate specific instruction or vocational training in the relevant branch of activity. In the present case, considering the significant number of injuries and fatalities suffered by children under 18 years working in the agricultural sector, it would appear that the conditions of protection and prior training, as set out in Recommendation No. 190, are not fully met in all circumstances. The Committee accordingly once again strongly encourages the Government to take the necessary measures to ensure that work performed in the agricultural sector is prohibited to children under 18 years where it is hazardous within the meaning of the Convention. However, where such work is performed in the agricultural sector by young persons between 16 and 18 years of age, the Committee urges the Government to take the necessary measures to ensure that this work is only carried out in accordance with the strict conditions set out in Paragraph 4 of Recommendation No. 190, namely that the health and safety of such young persons be protected and that they receive adequate specific instruction or vocational training. The Committee requests the Government to provide information on progress made in this regard in its next report.

Article 4, paragraph 3. Examination and periodical revision of the types of hazardous work. The Committee had previously noted that 28 HOs adopted by virtue of the FLSA determine the types of work or activities that children under 18 shall not perform. It had also noted that these Orders were established in 1939 and 1960 with regard to non-agricultural occupations and 1970 for agricultural occupations. It had noted the Government’s indication that it was in the final stages of rule-making on several HO recommendations by the NIOSH: those relating to driving and operating balers and compactors, roofing and handling explosive materials. The Committee also noted the AFL-CIO’s allegation of June 2005 that the NIOSH issued recommendations for changing the existing agricultural HOs.

The Committee notes the Government’s information that, in 2004, the Department of Labor (DOL) issued a final rule addressing six of the 35 NIOSH report recommendations relating to non-agricultural HOs. Furthermore, it notes the Government’s information that the DOL published a Notice of Proposed Rulemaking (NPRM) and Advance Notice of Proposed Rulemaking (ANPRM) on 17 April 2007, both of which address the remaining 29 non-agricultural HO recommendations. The modifications proposed by the NPRM include changes to: (i) HO 7, which proposes to prohibit minors under 18 from working from cherry pickers, scissor lifts and bucket trucks; (ii) HO 10, to prohibit work in all meat products manufacturing industries for young persons under 18, including poultry slaughtering and processing and meat manufacturing; and (iii) HO 14, to prohibit the use of chain saws and wood chippers, as well as reciprocating saws, for young persons under 18. The Committee also notes the Government’s statement that the DOL intends to give the HOs for agricultural occupations the same attention it has given the other NIOSH recommendations relating to non-agricultural occupations. The Committee requests the Government to provide information on the amendments to the existing HOs that are effectively adopted pursuant to the recommendations of the NIOSH. Noting that the proposed amendments only address the NIOSH recommendations in respect of non-agricultural occupations, the Committee expresses the firm hope that the Government will take the necessary measures to address the NIOSH’s recommendations for changing the existing agricultural HOs. It also requests the Government to provide information on the amendments envisaged or already adopted for the agricultural HOs, and on any progress made in this regard.

Article 5. Monitoring mechanisms. Hazardous work and agriculture. The Committee had previously noted the AFL-CIO’s indication that an estimated 100,000 children suffer agriculture-related injuries annually in the United States and that very few inspections take place in agriculture. It had observed that the GAO recommended that steps be taken to ensure that the procedures specified in the existing agreement among the DOL’s Wages and Hour Division (WHD) and other federal and state agencies, especially with regard to joint inspections and exchange of information, are being followed. The Committee had noted the Government’s information that, in 2004, the WHD concluded over 1,600 investigations in the agricultural industry and found 42 minors illegally employed in 26 cases. Four minors were found illegally employed in violation of the agricultural HOs. It had noted the Government’s information that the EPA revised the national WPS inspection guidance for conducting routine use inspections on agricultural establishments. Moreover, it had noted that WHD, OSHA and NIOSH have partnered to reduce occupational deaths and injuries to youth on farms through compliance assistance and awareness. However, the Committee had expressed its concern at the decreasing number of child labour investigations conducted in the agricultural sector from 2004 to 2005 which, according to the AFL-CIO, had decreased by 31.5 per cent.

The Committee notes from the Government’s report that, in 2005, the WHD conducted 1,449 investigations of agricultural employers, throughout which 61 minors were found illegally employed in 35 cases. In 2006, the WHD conducted 1,410 investigations of agricultural employers and found 51 minors illegally employed in 23 cases. The Committee further notes the Government’s statement that OSHA conducts on-site inspections whenever it receives a complaint which gives it reasonable grounds to believe that a serious violation or hazard exists and that workers under 18 years of age are exposed to that hazard, particularly if it relates to construction, manufacturing or agriculture. The Government indicates that, between September 2005 and August 2007, the OSHA and its state partners conducted 4,268 inspections of agricultural employers and found 8,952 violations in 2,637 cases. However, the Committee notes that, according to the Government representative at the Conference Committee on the Application of Standards of the 95th Session of the International Labour Conference of June 2006, although child labour violations across industries continued to decrease, violations in agriculture had increased in the previous year. The Committee strongly encourages the Government to continue to strengthen the role of the institutions responsible for the enforcement of child labour laws in agriculture, especially with regard to hazardous work. It requests the Government to continue to provide information on the inspections carried out and on the number and nature of violations detected with regard to children under 18 employed in the worst forms of child labour and, particularly, in agriculture.

Article 7, paragraph 1. Penalties. The Committee had previously noted that the Secretary of Labor proposed to raise the maximum penalty from US$11,000 to US$50,000 for any kind of child labour violation which results in death or maiming. In addition, the Secretary of Labor proposed to raise the maximum penalty for wilful or repeated violations that lead to the death or serious injury of a child. The Committee had noted the Government’s information that the President’s budget for the 2004–06 fiscal years included proposals to increase civil monetary penalties for violations of the FLSA’s youth employment provisions that result in the death or serious injury of a young worker.

The Committee notes the Government’s statement that the Bill which expects to increase the civil monetary penalty from US$11,000 to US$50,000 would also raise to US$100,000 the maximum penalty per wilful or repeated violation that causes the death or serious injury of a child employed in violation of FLSA child labour provisions. The Government indicates that the Bill was passed by the House of Representatives on 12 June 2007 and received by the Senate on 13 June 2007, which referred it to the Committee on Health, Education, Labor and Pensions for consideration. The Committee requests the Government to supply a copy of the Bill once it has been adopted.

Parts III, IV and V of the report form. Application of the Convention in practice. The Committee had previously noted the Government’s information that the TVPA, as amended by the TVPRA, requires that the Attorney-General submit an annual report to Congress assessing the impact of United States Government activities to combat trafficking in persons which include, among others, information on: the number of trafficking victims who received government benefits and services; and the number of investigations and prosecutions of trafficking in persons.

The Committee notes that, according to the Attorney-General’s Annual Report to Congress on US Government Activities to Combat Trafficking in Persons of May 2007, the Department of Justice (DOJ) Civil Rights Division’s anti-trafficking efforts resulted in a record number of defendants charged and convicted in a single year, while the number of investigations increased more than 20 per cent over the fiscal year 2005. In 2006, DOJ initiated prosecutions against 111 traffickers, which is higher than the number charged in 2005 (96) and more than twice the number charged in 2004 (47). The Committee also notes that the US Immigration and Customs Enforcement (ICE), which investigates the sexual exploitation of children overseas by US citizens, has conducted over 299 investigations of child sex tourism. In addition, ICE operates “Operation Predator” to safeguard children from foreign national sex offenders, international sex tourists, Internet child pornographers and human traffickers. Since 2003, the initiative has resulted in more than 9,000 arrests, of which 2,381 occurred in 2006. Furthermore, in 2006, the FBI’s Crime Against Children Unit, which initiated in 2003 the “Innocence Lost National Initiative” in partnership with DOJ’s Criminal Division to address the problem of children exploited in prostitution, conducted 103 open investigations, 157 arrests, and 43 convictions. Since the inception of the “Innocence Lost National Initiative”, in 2003, more than 300 children have been recovered. The Committee takes due note of this information and requests the Government to continue providing information on the worst forms of child labour through copies of, or extracts from, official documents, including inspection reports, studies and inquiries, and information on the nature, extent and trends of the worst forms of child labour, and more specifically on children involved in trafficking for sexual or labour exploitation or performing hazardous work in agriculture, the number of children covered by the measures giving effect to the Convention, the number and nature of infringements reported, investigations, prosecutions, convictions and penal sanctions applied.