Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

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 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 notes the Government’s statement that, on 23 December 2008, the TVPRA of 2008 was enacted which once more reauthorized the TVPA for four years and authorized new measures to combat human trafficking, including efforts to increase effectiveness of anti-trafficking in persons programmes, providing interim assistance for potential child victims of trafficking and enhancing the ability to criminally punish traffickers. For example, the Committee notes that, according to the detailed information provided in the Attorney-General’s Annual Report to Congress and Assessment of United States Government Activities to Combat Trafficking in Persons of June 2009 (Attorney‑General’s Annual Report of 2009), the TVPRA of 2008 broadens the crime of sex trafficking by fraud, force or coercion by providing that the Government need merely prove that the defendant acted in reckless disregard of the fact that such means would be used. The TVPRA also broadens the reach of the crime of sex trafficking of minors by eliminating the requirement to show that the defendant knew that the person engaged in commercial sex was a minor in cases where the defendant had a reasonable opportunity to observe the minor. The Committee once again 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 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 Labour finds and declares to be “particularly hazardous for the employment of children”. It had 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 Labour.

The Committee had noted the allegation of the American Federation of Labour and Congress of Industrial Organizations (AFL–CIO) 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 further noted that, according to the AFL–CIO and the National Institute 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 youths of 15–17 years of age working in agriculture appear to have over four times the risk of injury than youths working in other industries. 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 also noted 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 in 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 therefore shared 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.

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 Labour 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(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 condition 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(1) of the Convention. However, the Committee, considering the significant number of injuries and fatalities suffered by children under 18 years working in the agricultural sector, observed that the conditions of protection and prior training appeared not to be fully met in all circumstances and requested 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.

The Committee notes the information in the Government’s report that the Environmental Protection Agency (EPA) and the Department of Labour (DOL) have robust health and safety standards for the agricultural sector, including the EPA’s worker protection regulation (40 C.F.R. 170) and certified pesticide applicator regulation (40 C.F.R. 171), both of which are scheduled to undergo modifications in 2010. The Government indicates that the proposed modifications, which were delayed under the previous administration, would help ensure the health and safety of young agricultural workers by setting specific age requirements for pesticide-related activities. Furthermore, the Government indicates that the EPA and DOL have training requirements to protect all agricultural workers’ health and safety, including the standard on occupational hazard communication that requires training on the recognition of chemical hazards and appropriate protective measures. The DOL’s Wage and Hour Division (WHD) and the United States Department of Agriculture have also worked together to reinvent and streamline a voluntary tractor certification programme for 14- and 15-year-olds, who are permitted by HOs to operate certain otherwise prohibited farm equipment after being properly trained and certified in the equipment’s safe operation. Moreover, the DOL’s Occupational Safety and Health Administration also engages in significant education and outreach designed to keep youth safe, including child farm workers.

The Committee notes, however, that the United States Government has no special training or instructional requirements at the federal level for 16- and 17‑year-old agricultural workers engaged in hazardous labour and there are currently no separate health and safety standards under federal law for child farm workers aged 16 or 17 engaging in hazardous work. The Committee also notes the information in the Government’s report that all children on family farms and
12- and 13-year-old farm workers working alongside their parents or with parental consent are excluded from the FLSA minimum-age requirements.

The Committee must express its serious concern over the fact that children under 18 years of age are allowed, in law and in practice, to perform these types of work which are clearly hazardous, as acknowledged by the Government itself in its report when it refers to agriculture as the industry with the highest youth fatality rate. It also expresses its serious concern that children aged 14 and 15 years are permitted by HOs to receive training in the operation of otherwise prohibited farm equipment, such as tractors, and that children of all ages working on family farms or 12- and 13-year-olds working alongside their parents or with parental consent are excluded from the application of the FLSA. The Committee must therefore once again emphasize 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 under 18, constitutes one of the worst forms of child labour and that, by virtue of Article 1 of the Convention, member States are required to take immediate and effective measures to secure the prohibition and elimination of the worst forms of child labour as a matter of urgency. 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. Considering the significant number of injuries and fatalities suffered by children, as reflected by the fact that agriculture is the industry with the highest fatality rate, it would appear that the conditions of protection and training as set out in Paragraph 4 of Recommendation No. 190 are not fully met in all circumstances. The Committee accordingly urges the Government to take immediate and effective measures to comply with Article 1 of the Convention, read with Article 3(d), to prohibit children under 18 years of age from engaging in hazardous and dangerous work in agriculture. 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 the 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 AFL–CIO’s allegation of June 2005 that the NIOSH issued recommendations for changing the existing agricultural HOs. The Committee had noted that, in 2004, the DOL issued a final rule addressing six of the 35 NIOSH report recommendations relating to non-agricultural HOs. Furthermore, it had noted 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 Committee had further noted the Government’s statement that the DOL intended to give the HOs for agricultural occupations the same attention it has given the other NIOSH recommendations relating to non-agricultural occupations.

The Committee notes the information in the Government’s report that, due to the amount of work involved, the DOL has been following up on the NIOSH recommendations in stages. The Government indicates that the ANPRM requested comments from the public on the student-learner and apprentice exceptions contained in certain of the HOs, as well as additional recommendations made by the NIOSH report for which there was not sufficient data to propose new rules. The DOL has reviewed the comments that were received from the public and is in the process of moving forward in its efforts. The Government also indicates that the DOL values the NIOSH report’s recommendations on agricultural HOs for youth employment and is still evaluating the appropriate course of action. The DOL is also continuing its ongoing review of workplace conditions of youth in agriculture to assess the relevancy of existing regulations. Noting that the Government has been referring to the envisaged amendments to the HOs for a number of years, the Committee requests the Government to take immediate measures to ensure that the NIOSH’s recommendations for changing the existing HOs are followed up on and that the amendments to the HOs are effectively adopted pursuant to these recommendations as a matter of urgency, in particular with regard to the agricultural HOs. It requests the Government to provide information on the progress made in this regard in its next report.

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. Moreover, it had expressed its concern at the decreasing number of child labour investigations conducted in the agricultural sector. Finally, the Committee had noted that, according to the Government representative at the Conference Committee on the Application of Standards of the 95th Session of the International Labour Conference in June 2006, although child labour violations across industries continued to decrease, violations in agriculture had increased in the previous year.

The Committee notes the information contained in the Government’s report that, in 2007, the WHD conducted 1,667 investigations of agricultural employers, in which 75 minors were found illegally employed in 35 cases. The number of cases with agricultural HO violations was six and the number of minors employed in the agricultural industry in violation of HOs was seven. In 2008, the WHD conducted 1,600 investigations of agricultural employers in which 52 minors were found illegally employed in 34 cases. The number of cases with agricultural HO violations was ten and the number of minors employed in violation of HOs was 11. Furthermore, from September 2007 to August 2009, the OSHA and its state partners conducted a total of 5,415 inspections of agricultural employers and in 3,399 cases found 10,694 violations.

The Committee also notes the Government’s statement that the WHD will be hiring 250 additional wage and hour inspectors in 2010. The Government indicates that the WHD has used and continues to use every tool available – enforcement, compliance, assistance, public awareness, partnership, regulation and legislation – to promote compliance with child labour laws. In addition, the WHD has begun working with an independent evaluator to assess its strategies and their effectiveness in increasing compliance with the FLSA child labour provisions, and this study is ongoing. However, the Committee notes the Government’s statement that these statistics do not include enforcement data relating to farming operations that do not maintain a temporary labour camp and employ ten or fewer employees. Indeed, as a result of a provision from Congress, the OSHA’s inspection personnel only conduct inspections and levy fines on farms with over ten employees. The Committee recalls that Article 5 of the Convention requires each Member, after consultation with the social partners, to establish or designate appropriate mechanisms to monitor the implementation of the provisions giving effect to the Convention. The Committee therefore urges the Government to take immediate and effective measures to ensure that the necessary monitoring mechanisms are in place so that all farms are inspected and monitored, regardless of the number of persons they employ. 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 agricultural undertakings and in farms where ten or fewer employees are employed.

Parts III, IV and V of the report form. Application of the Convention in practice. Referring to its previous comments, the Committee notes that, according to the Attorney-General’s Annual Report of 2009, the Federal Bureau of Investigation (FBI) participates in a significant majority of the Bureau of Justice Assistance-funded human trafficking task forces as well as other human trafficking task forces and working groups. In fiscal year 2008, the FBI opened 132 human trafficking investigations, made 139 requests and filed 60 complaints. In the same fiscal year, 129 information/indictments were filed in FBI human trafficking cases and 94 convictions were obtained. Furthermore, in June 2008, the Innocence Lost Task Forces of the Innocence Lost Initiative, launched by the FBI and the Department of Justice’s Child Exploitation and Obscenity Section in 2003, participated in the Operation Cross Country to combat domestic sex trafficking in children. This operation resulted in the arrest of 356 individuals and the recovery of 21 children. In October 2008, Operation Cross Country II took place. A total of 630 law enforcement personnel participated in the operation, which resulted in 642 arrests, the disruption of 12 large-scale prostitution operations and, most importantly, the rescue of 49 children aged 13–17 years from the sex trade. From the inception of the Innocence Lost Initiative in June 2003 to the execution of Operation Cross Country II in October 2008, over 575 children were rescued from such situations. The Committee further notes that the Human Trafficking Reporting System, which provides data on human trafficking incidents on a regular basis, conducted analyses on those incidents investigated between 1 January 2007 and 30 September 2008. During the 21-month analysis period, 1,229 suspected incidents of human trafficking were reported, nearly 83 per cent of which involved sex trafficking and 12 per cent involved trafficking for labour exploitation. Of the 1,018 alleged sex trafficking incidents, 391 (38 per cent) involved allegations of child sex trafficking. Finally, the Committee observes that the Attorney-General’s Annual Report of 2009 enumerates several examples of cases investigated or prosecuted by the Department of Justice in fiscal year 2008 which involved the trafficking of children for labour or sexual exploitation.