Observación (CEACR) - Adopción: 2002, Publicación: 91ª reunión CIT (2003)

1. The Committee has taken note of the Government’s first report. In its previous observation, the Committee took note of a communication dated 11 September 2001 of the International Confederation of Free Trade Unions (ICFTU), submitting comments on the observance of the Convention. In its communication, the ICFTU alleged, inter alia, that an underfunded labour inspectorate and inadequate penalties for employers who violate the law mean that legally established labour standards covering child labour are inadequately enforced. It indicated that, notwithstanding the fact that agriculture is both dangerous and employs the largest share of children working in the United States, child labour laws governing minimum age, working hours, and overtime pay do not apply to agriculture. The ICFTU alleged that children are often unprotected from harmful pesticides and between 400 and 600 children working in agriculture suffer work-related injuries that are reported each year. In addition, between 1992 and 1996, 59 children lost their lives while working in agriculture. The Committee requested the Government to present its comments on these and other allegations made by the ICFTU.

2. The Committee has noted the Government’s detailed supplemental report with its comments on the communication of the ICFTU. The Committee notes the concern expressed by the Government that, while the Government’s first report arrived late, the Committee’s previous observation referred only to the communication of the ICFTU and not to the Government’s report. The Committee also notes the Government’s comments in response to the allegations in the communication of the ICFTU. The Government cites statistics in the Department of Labor’s June 2000 Report on the Youth Labor Force to challenge the contention that agriculture employs a proportionally larger number of children than other industries. In commenting on the study referred to in the communication of the ICFTU, the Government questions the validity of estimates of the number of children working illegally that are gleaned from the Current Population Survey (CPS) - a monthly survey of households prepared by the U.S. Census and the Bureau of Labor Statistics - because of what it considers to be the generality of the CPS and the lack of high-quality data for children younger than age 14. The Committee also notes that, in its reply to the ICFTU allegations of an underfunded labour inspectorate and inadequate penalties, the Government describes what it considers to be a much more comprehensive enforcement strategy including the aims of targeted enforcement, compliance education and outreach, partnerships, and heightened public awareness, and it cites statistics which it says demonstrate that its strategy is making a difference.

Articles 1, 2, 3(d) and 4 of the Convention

3. The Committee notes that, in its comments on determining, under Article 4 of the Convention, what constitutes hazardous types of work for purposes of Article 3(d) of the Convention, the Government refers back to its first report to, as it states, describe "the manner in which the United States has made and continues to review this determination". In that report, the Government indicated that "two federal laws enforced by the Secretary of Labor are the primary means of establishing the principles of Article 3(d)". It identified these as the Fair Labor Standards Act (FLSA), 29 U.S.C. sections 201 et seq., and the Occupational Safety and Health Act (OSH Act), 29 U.S.C. sections 651 et seq. The Government also referred to an inter-agency agreement with the National Institute for Occupational Safety and Health (NIOSH), an agency within the U.S. Department of Health and Human Services, of April 1999, as one of the means by which the types of work it has determined to be hazardous for children under Article 3(d) are "periodically reviewed and amended as necessary", in accordance with Article 4(3) of the Convention.

The Fair Labor Standards Act

4. The Committee notes that the Fair Labor Standards Act of 1938 (FLSA), and its implementing regulations, regulates the types of jobs, number of hours, and times of day that children can work and provides the overall framework for regulating the employment of child workers. The child labour provisions of the FLSA are contained in section 12 (29 U.S.C. section 212(a-d)). Section 12 prohibits the employment of "oppressive child labor" in commerce or in the production of goods for commerce, or in any enterprise so engaged (29 U.S.C. section 212(c)). Enterprises with an annual volume of sales of less than US$500,000 are exempt (29 U.S.C., section 203(s)(1)). The FLSA defines oppressive child labour, in part, as a condition of employment in occupations which the Secretary of Labor finds and, by order, declares to be "particularly hazardous for the employment of children … or detrimental to their health or well-being" (29 U.S.C. section 203(l)). The Secretary of Labor has, by regulation, designated such occupations and types of work or work activities in 28 "hazardous occupation orders"- 17 relating to non-agricultural employment and a separate category of 11 orders for agricultural employment (29 C.F.R. Part 570, Sub-parts E and E-1). For hazardous work activities in non-agricultural occupations, the FLSA establishes a minimum age of 18, whereas for employment in agriculture, the FLSA sets a minimum age of 16 (29 U.S.C. section 213(c)(2)).

5. The Committee notes that, among others, a specific exemption from the child labour provisions of the FLSA is made for a child working in agriculture on a family farm, that is, a farm "owned or operated by his or her parent or by someone standing in the place of the parent" (29 U.S.C. section 213(c)(1)(A)(i)). Thus, the hazardous occupation orders relating to the employment of children under 16 years of age in agriculture do not cover employment of children on family farms (29 U.S.C. section 213(c)(2); 29 C.F.R. section 570.70(b)). Employment in agriculture is also exempt from the statute’s restrictions on work hours (29 U.S.C. section 213(b)(12), (13)).

2002 NIOSH report: Recommendations to the U.S. Department
of Labor for Changes to Hazardous Orders

6. In its initial and supplemental reports, the Government indicates that, as part of its obligation under Article 4(3) to periodically re-examine the list of the types of work determined to be hazardous for children, the U.S. Department of Labor’s Wage and Hour Administration entered into an inter-agency agreement with the National Institute for Occupational Safety and Health (NIOSH) to conduct research on "safety and health risks for children, with particular emphasis on issues relevant to child labor regulations". NIOSH is the federal agency responsible for conducting research and making recommendations for the prevention of work-related disease and injury. The Institute is part of the Centers for Disease Control and Prevention (CDC). The CDC is an agency of the US Department of Health and Human Services. The Government indicates that the agreement contemplated that the research conducted and overseen by NIOSH would, among other things, address "the adequacy of existing hazardous occupation orders under the FLSA and the potential for new orders". In its supplemental report, the Government indicates that NIOSH released its report on Recommendations to the U.S. Department of Labor for Changes to Hazardous Orders in July 2002.

7. The Committee takes notes of this report, which is dated 3 May 2002. In summarizing the purpose of its study, NIOSH states: "The Fair Labor Standards Act (FLSA), largely unchanged in decades, defines work activities prohibited for young workers through 28 Hazardous Orders (HOs) for non-agricultural and agricultural occupations … The HOs in non-agricultural occupations were established between 1939 and 1963. The agricultural HOs were established in 1970. There have been significant changes in the workplace and advancement in knowledge about occupational safety and health hazards that are not reflected in the existing HOs. The need to update the HOs has been recognized by the Department of Labor [citations omitted] and numerous researchers and advocates." The report notes a recommendation for such periodic reviews made recently by the National Research Council/Institute of Medicine in its report, Protecting Youth at Work: "The U.S. Department of Labor should undertake periodic reviews of its hazardous orders in order to eliminate outdated orders, strengthen inadequate orders, and develop additional orders to address new and emerging technologies and working conditions. Changes to the hazardous orders should be based on periodic reviews by the National Institute for Occupational Safety and Health of current workplace hazards and the adequacy of existing hazardous orders to address them."

8. The NIOSH report states that "the DOL responded to the above charge" by requesting that NIOSH prepare a report based on a review of data and the scientific literature and provided funding to support the effort. The primary data sources used by NIOSH were the Census of Fatal Occupational Injuries, the Survey of Occupational Injuries and Illnesses, the National Electronic Injury Surveillance System, and the Current Population Survey. The report indicates that, in addition, hundreds of scientific articles and reports were reviewed. NIOSH states that its report "makes recommendations specific to HOs that define prohibited occupations … NIOSH recognizes the need to better protect the health and safety of working youth, and provides this report to assist the DOL in aligning child labor regulations with current knowledge about occupational safety and health. NIOSH offers its continued support to work closely with DOL to ensure that child labor regulations provide adequate protections for working youth and to initiate research into those areas of risk where insufficient data currently exist to guide rule-making".

9. In a summary of its findings, NIOSH reports that it "found justification for all of the existing HOs [hazardous orders]. Review of available data and scientific evidence found that work currently prohibited by HOs continues to pose risks for death, serious injury and disabling health conditions. NIOSH proposes several types of revisions to HOs: better definition of prohibited activities, incorporation of associated legislative provisions, and in some cases, removal of current exemptions. Additionally, NIOSH makes recommendations to expand several HOs to include similar work with comparable or greater risk. In a couple of cases, NIOSH concluded that revisions of existing HOs may be warranted, to allow use of currently prohibited equipment which appears to be associated with relatively minor injuries". The Committee notes that, for existing hazardous occupation orders, NIOSH recommends that only seven of the 28 orders (four of the 17 orders for non-agricultural occupations and three of the 11 orders for agricultural employment) be retained, and that the other 75 per cent be revised to expand the prohibitions or to redefine them more broadly.

10. The report indicates that NIOSH "recommends the development of several new HOs to protect youth from especially hazardous work not adequately addressed in the existing regulations. The recommended HOs encompass work associated with deaths and severe injuries of youth, work with especially high fatality rates, and work associated with disabling health occupations. In several instances, NIOSH recommends extending prohibitions now in place for agricultural occupations to similar tasks in non-agricultural occupations, e.g., pesticide handling, work in confined spaces, and tractor operation". NIOSH recommends new hazardous occupation orders that would prohibit the following types of work: commercial fishing occupations; construction occupations; work in refuse occupations; water transportation industries; work in scrap and waste materials industry; farm product raw materials wholesale trade industry; railroad industry; work at heights; operating a tractor (for non-agricultural occupations); operating heavy machinery (for non-agricultural occupations); welding; work inside confined spaces (for non-agricultural occupations); work involving powered conveyors (in manufacturing industries); pesticide handling (in non-agricultural occupations); work with potential exposure to lead; work with potential exposure to silica dust; and work requiring the use of respiratory protection.

2002 NIOSH report: Minimum age for work in hazardous
occupations in agriculture and exemptions from the FLSA

11. In describing the scope of its study, NIOSH specifically notes that it "does not address statutory issues such as the minimum age for work in HOs and exemptions from the FLSA … Many deaths and serious injuries occur among youth not covered by the FLSA". With regard to agricultural employment, the report states: "Thirty-five percent of the young workers killed over the 1992-1997 period lost their lives in agricultural production jobs". The report states further (page 12) that "more than half of the 162 deaths in agriculture [during the period 1992-1997] occurred on family farms … Youth 15 to 17 years of age working in agriculture appeared to have over four times the risk for fatal injury of youth workers in other industries".

12. The report states:

Despite the well-documented hazards and consistently high rates of injury and fatalities, youth in agricultural workplaces are afforded less protection than youth in non-agricultural occupations. This is true even with respect to the same hazards, such as machinery. In fact, the current distinctions between HOs for agricultural and non-agricultural occupations are frequently artificial, given that the same machinery, activities, and exposure are often present in both settings. Yet the minimum age for similar hazardous work in agriculture is 16, compared to 18 in non-agricultural occupations. For the six year period 1992-1997, there were 39 deaths of youth 16-and 17-years of age in agricultural production [citation omitted]. Changes to HOs could not be expected to impact these young worker injury deaths since they are exempt from the FLSA, unlike most other types of family businesses. It is not possible for NIOSH to determine from the CFOI [Census of Fatal Occupational Injuries] research file provided by BLS [Bureau of Labor Statistics] the numbers of agricultural production deaths of youth less than 16 years of age that would not be covered by the FLSA because the youth was working on the family farm. A previous analysis of CFOI by BLS researchers suggested that more than half of the farming-related deaths of youth less than 18 years of age occurred on farms owned by the victim’s families.

1998 Report of the General Accounting Office

13. The Committee takes note of the August 1998 report to Congress of the U.S. General Accounting Office (GAO), entitled Child Labor in Agriculture: Changes Needed to Better Protect Health and Educational Opportunities (GAO/HEHS-98-193). The GAO is an independent and non-partisan government agency that evaluates federal programmes, audits federal expenditures, and issues legal opinions. The GAO advises Congress and the heads of executive agencies about ways to make government more effective and responsive. In its report the GAO, like NIOSH, has recognized the particular hazards of agricultural employment for child workers: "Agriculture is a hazardous industry, with one of the highest rates of injuries, fatalities, and lost workdays for employees generally. Available data indicate that although the relative number of injuries of children working in agriculture is not as high as that for those working in other industries, the severity tends to be greater and these children have a disproportionate number of fatalities. Although a number of data sources document injuries and illnesses to children working in agriculture, methodological constraints result in estimates that may understate injuries to and fatalities of these children."

14. The GAO explained in practical terms the impact of the FLSA provisions that exempt, or apply less protection to, child labour in hazardous agricultural employment:

... 60 years after FLSA was passed, although it covers children working in both agriculture and other industries, children working in agriculture are legally permitted to work at younger ages, in more hazardous occupations, and for longer periods of time than children working in other industries. For example, … a 16-year-old may not operate a power saw in a shop or a forklift in a warehouse but may operate either on a farm. … Children as young as 16 may work in agriculture in any capacity, including in some occupations declared hazardous by the Secretary of Labor … In non-agricultural industries, children generally may not perform such tasks until age 18. Furthermore, in agriculture, parents do not have to adhere to hazardous occupation requirements, which means a parent may allow his or her 7-year-old to operate a power saw or drive a tractor, although a parent would not be able to allow his or her 7-year-old to operate a similar machine in a non-agricultural setting.

15. The Committee notes that the GAO includes, as a "matter for congressional consideration", the following as one of its recommendations: "Considering the evolutionary changes that are transforming the agricultural industry and the increased emphasis on the safety, health, and academic achievement of children, the Congress may wish to formally re-evaluate whether FLSA adequately protects children who are hired to work as migrant and seasonal farmworkers."

Pending Legislative Amendments (Federal)

16. The Committee notes with interest that, in 2001, several legislative amendments to the FLSA were introduced in the 107th Congress to accord greater protection to child workers in hazardous employment. S. 869, the Children’s Act for Responsible Employment of 2001 (The CARE Act), among other things, raises, from 16 to 18 years old the minimum age for engaging in hazardous agricultural employment, and it limits the exemptions for agriculture to those children employed outside of school hours by a specified family member on that member’s farm. H.R. 2239, the Children’s Act for Responsible Employment of 2001 (The CARE Act), is similar to s. 869. The Young American Workers’ Bill of Rights, H.R. 961, among other things, amends the limitation on the scope of coverage to employers with a certain sales volume, and it requires employers to obtain work permits for all children age 18 or under who are still in school.

17. The Committee also notes with interest, in relation to the NIOSH review, the Government’s indication that "the Department [of Labor] has already begun to implement many of the changes urged in the report and is reviewing others", and that it will report further on these developments in its next report.

18. The Committee hopes that the provisions of the Fair Labor Standards Act and its implementing orders and regulations, as they relate to hazardous child labour, will be amended in the light of the Government’s NIOSH and GAO reviews and recommendations, and that the Government will report on the action it has taken to this end.

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