Historical Background of the Child Labor Regulations...

Journal of Agromedicine, 17:163–185, 2012Copyright © Taylor & Francis Group, LLCISSN: 1059-924X print/1545-0813 onlineDOI: 10.1080/1059924X.2012.660434

Historical Background of the Child LaborRegulations: Strengths and Limitations of theAgricultural Hazardous Occupations Orders

Mary E. Miller, RN, MN

ABSTRACT. The purpose of this paper is to review the background of key legislative and regulatorymilestones of the initial laws and federal child labor provisions limiting hazardous work by childrenin agriculture up to the more recent developments contributing to the proposed updates to the agricul-tural hazardous occupations orders. A summary of the key changes are described and the significantdifferences between agricultural and nonagricultural regulations are highlighted. Recommendations forfuture policy are provided.

KEYWORDS. Agriculture, child labor, regulations

It has been said that progress can be mea-sured by the extent to which children’srights are safeguarded.1

INTRODUCTION

Serious and fatal injuries among children work-ing in agriculture have led to growing concernamong many, including government officials,child labor and young worker advocates, andinjury prevention and occupational health andsafety experts, that the US agricultural childlabor laws are too permissive and lack sufficientprotections. Agriculture has consistently rankedas one of the most hazardous industries foradults and children alike, and yet it is the least

Mary E. Miller is Child Labor/Young Worker Specialist, Washington State Department of Labor andIndustries, Olympia, Washington, USA.

Disclaimer: The findings and conclusions in this paper are those of the author and do not represent theviews of the Washington State Department of Labor and Industries.

The author thanks Art Kerschner, Jr., Chief, Branch of Fair Labor Standards and Child Labor, Division ofEnforcement Policy and Procedures, Wage and Hour Division, US Department of Labor.

Address correspondence to: Mary E. Miller, RN, MN at [email protected].

regulated with regard to child labor and otherworker protections. The National Safety Councilidentified agriculture as the most dangerousindustry in the United States. Its fatality rate of25.4 per 100,000 full-time equivalents (FTEs) ismore than twice the rate for mining, the indus-try with the second-highest fatality rate in 2009.2

Agriculture also contributes to a high propor-tion of fatal injuries among youth. During theperiod 1998–2002, 41% of fatal injuries amongyouth under age 17 occurred in agriculture.3

The agriculture industry has the second high-est fatality rate among young workers (aged15 to 24) at 21.3 per 100,000 FTEs compared to3.6 per 100,000 across all industries.4 For thoseunder age 16, agriculture production accountedfor almost 60% of deaths in this age group.5

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164 HISTORICAL BACKGROUND OF THE CHILD LABOR REGULATIONS

In addition to concerns raised in the UnitedStates about the protections for youth workingin agriculture, these regulations are not consis-tent with the requirements of International LaborOrganization (ILO) Convention 182, which callsfor urgent action to abolish the worst forms ofchild labor, including work activities currentlypermitted for youth working in agriculture.6 TheUnited States ratified this Convention in 1999,and thus far, 174 of 183 ILO United Nationscountry members have signed this convention.7

Children working in agriculture include thoseliving and working on their family’s farm, thoseworking on family-owned or large corporatefarms in the communities where they live, andyoung migrant workers either working with theirparents or other family members, or teens travel-ing for work on their own unaccompanied by anadult guardian. The full extent of the numbersof youth in any one of these groups is not eas-ily determined due to limitations of current datacollection systems.

United States Secretary of Labor, Hilda Solis,highlights the needs of both working youth andagricultural workers in the Strategic Plan for theUS Department of Labor (USDOL) 2011–2016.The plan states as a key goal to ensure work-places are safe and healthy and that there willbe an emphasis on high-risk industries.8 Thisgoal intersects the missions and activities of theOccupational Safety and Health Administration(OSHA), as well as the Wage and Hour Division(WHD). The Plan calls for the WHD to “ensurebasic safety and health protections for youngworkers and farm workers.” OSHA and WHDare charged with enforcement programs thatare geared toward protecting these most vul-nerable worker populations with special empha-sis on working conditions for young seasonalfarmworkers. In addition, the Strategic Planstates that “WHD regulatory child labor initia-tives are intended to ensure that up-to-date dataare used to ensure that workplace restrictionsare consistent with the dangers of a 21st centuryworkplace.”8

In his 2011 State of the Union address,President Barack Obama specifically stated thathis administration would not reduce protectionsfor the health and safety of the community, suchas child labor laws:

“To reduce barriers to growth and invest-ment, I’ve ordered a review of governmentregulations. When we find rules that putan unnecessary burden on businesses, wewill fix them. But I will not hesitate to cre-ate or enforce common-sense safeguards toprotect the American people. That’s whatwe’ve done in this country for more than acentury. It’s why our food is safe to eat, ourwater is safe to drink, and our air is safe tobreathe. It’s why we have speed limits andchild labor laws.”9

The USDOL’s Strategic Plan and PresidentObama’s statement highlight the administra-tion’s priority to focus on protections for chil-dren working in agriculture. Regulations arecritical to this protection. This paper intends tofoster a better understanding of the status ofthese protections and will review the histori-cal background, strengths, and limitations of thecurrent and proposed changes to the agricul-tural child labor regulations. Information aboutthe nonagricultural child labor regulations isincluded as part of the historical context of thedevelopment of all protective regulations forchildren in the workplace. In addition, a com-parison of the protections for different indus-try sectors helps to identify existing gaps inagriculture.

HISTORICAL BACKGROUND

Keating-Owen Act

The Keating-Owen bill of 1916 was the firstlaw that created federal child labor regulations.This law banned the sale of products from anyfactory, shop, or cannery that employed chil-dren under the age of 14; from any mine thatemployed children under the age of 16; and fromany facility that had children under the age of16 working at night or for more than 8 hoursduring the day. However, this and another lawpassed in 1918 were both ruled unconstitutionalby the Supreme Court on the grounds of states’power to regulate interstate commerce.10

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The Fair Labor Standards Act

The Fair Labor Standards Act (FLSA) of1938 established a minimum age of 16 fornonagricultural employment, but with restric-tions for youth to keep them from workingin the most hazardous jobs. The FLSA alsoauthorizes the Secretary of Labor to identifyand regulate the types of work that 14- and15-year-old youth may perform and limit thehours they may work. The list of restrictedand prohibited work activities in nonagriculturaljobs is described in 29 CFR Part 570. Thehazardous orders (HOs) for 16- and 17-year-olds is in Subpart E, and the regulation withadditional restrictions for 14- and 15-year-olds,Child Labor Regulation No. 3, is in Subpart C.11

The premise of these regulations is to reducethe impact of work on the health and well-beingof young workers. The assessment of workplacerisks for youth is balanced with their need tofulfill their school requirements and has beenintegral in the process to update the regulations.Revisions to the regulations must also keeppace with the dynamic changes in the work-place based on new technologies, processes,machinery, and equipment. In addition to federalchild labor regulations, states can and do adoptadditional protections. Washington State is anexample where, in a number of areas for bothagriculture and nonagriculture, the state childlabor laws exceed the protections of federalrequirements.

Differences in Protections forAgricultural Workers

The FLSA applies to agricultural andnonagricultural employees alike. The provi-sions, including minimum wage and child labor,may apply to either an individual employeeengaged in specific work activities or to anemployer as a whole that meets a specific eco-nomic threshold. Individual employees are cov-ered if they perform work where the productor activity involves interstate commerce. Oremployees of a business, such as a farm or arestaurant, may be covered by the protections ofthe FLSA if the business has an annual grossvolume of sales of at least $500,000. These

thresholds for coverage of workers are the samefor agricultural and nonagricultural employeesalike. Because almost all farm products enterthe stream of commerce, it is almost impossi-ble for a young farmworker not to be coveredby the child labor provisions under the FLSAunless they are a child of the farm owner oroperator.12

However, agriculture, as an industry, is lessregulated than nonagricultural industries and assuch, farm workers have fewer protections andrights than workers in other occupations.

For instance, hired farm workers are gener-ally exempt from the overtime pay provisions,and those employed on small farms below theminimum threshold described above are exemptfrom the minimum wage provisions as well.In addition, as will be described further through-out this article, the child labor protections havehistorically been weaker in agriculture than inother industries.

Under the OSHA regulations, health andsafety protections exempt those farms thatemploy fewer than 11 employees.13 However,despite the appropriations “rider” that exemptsthese smaller farms, at least 60% of farm work-ers are employed by the estimated 10% offarms that meet the threshold to fall underthe OSHA requirements to protect agriculturalworkers (Goldstein B, President, FarmworkerJustice, personal communication, August 2011,Washington, DC). Many are unaware of theextent of OSHA’s ability to enforce regulationsin these agricultural enterprises.

Another area of inadequate protection forworkers in agriculture is the limited accessto workers’ compensation coverage. With therecent addition of New Mexico, only 14 statesrequire employers to carry industrial insuranceto provide medical and time-loss benefits tofarmworkers who suffer work-related injuries,including youth.14 Because many lack any otherform of health insurance, youth either do notreceive sufficient treatment, if any, or the pub-lic systems must carry the burden of the costof healthcare. More details about these dis-parities can be found in another article inthis issue (McLaurin and Liebman, “UniqueAgricultural Safety and Health Issues of Migrantand Immigrant Children”).


HAZARDOUS OCCUPATIONS ORDERS

From 1939 through 1963, 17 nonagriculturalhazardous orders (HOs) were individuallyadopted. The HOs provide the list of prohib-ited and restricted work activities for 16- and17-year-old youth declared to be too danger-ous for them to perform in a work setting,such as driving a forklift, using power-drivenwoodworking or metal-forming and -cuttingmachines, using meat slicers, and working inany roofing occupation. Enforcement of theseHOs is critical to prevent serious or even fatalinjuries among youth. A number of HOs includea student-learner exemption that allows 16-and 17-year-old students enrolled in a bonafide vocational education or work-based learn-ing program to perform the task under limitedcircumstances. Updates to the child labor reg-ulations require a time-consuming rulemakingprocess and hence are slow in keeping pace withchanges in the workplace. Except for severalchanges to the nonagricultural HOs during themid-1990s, the federal child labor regulationsremained largely unchanged from 1970 untilmajor revisions of the nonagricultural rules tookeffect in July 2010. Table 1 depicts the sequenceof statutory and regulatory changes for bothagricultural hazardous occupations orders (AgH.O.) and nonagricultural hazardous occupa-tions orders (HOs).

History of the Hazardous OccupationsOrders

Although more details of the history ofchanges to the FLSA concerning the child laborprovisions can be found in the recent Noticeof Proposed Rulemaking,15 an overview of keyelements is presented in this and the followingsection.

Since enactment of the FLSA in 1938, restric-tions for youth working in agriculture havebeen less protective than for youth employedin nonagricultural jobs, even where comparableor greater risk exists between industry sectors.Agriculture is defined as farms that involve theproduction, cultivation, growing, and harvestingof any agricultural or horticultural commod-ity, including dairy. It includes raising animals,

bees, poultry, and any forestry or lumber oper-ations performed on a farm. This definitioncovers all practices related to crops or animalsin preparation for and delivery to storage ormarket.12

The FLSA allows for a limited parentalexemption for children working in anonagricultural business owned by theirparent(s) and removes the constraints of theage and hours-of-work restrictions. However,the exemption does not permit these youth toperform work activities prohibited under theHOs, or in mining and manufacturing industries.This limited exemption has existed relativelyunchanged since 1938. At the same time, amore broad and far-reaching exemption foryouth under age 16 employed in agriculturewas included when the FLSA was enacted.Originally, youth not legally required to be inschool were permitted to perform any activityin agriculture that was otherwise prohibitedby the HOs. Only if work conflicted withschool requirements did the HOs apply. Theoriginal authors of the FLSA did not attempt toprevent children from working, particularly inhazardous jobs, but compulsory education lawsdid, since working interfered with school atten-dance. School attendance requirements variedfrom state to state, and as a result, the protec-tions of the HOs varied by state as well. Somestates even amended their school attendancerequirements specifically to assist agriculturalemployers in meeting their workforce needs.At that time, agricultural employment wasan acceptable reason to excuse children fromschool attendance. Often, however, mandatoryschool attendance laws only applied to childrenof legal residents, which then permitted migrantfarm worker children to perform any work atany age.

Congress began to address the gap in theprotections for youth employed in agriculturebased on school status by amending the FLSA in1949. The change required that the restrictionsof the HOs apply, but only during a district’sscheduled school hours. During nonschool hoursyouth could perform any and all work activities.Changes at this time provided needed protectionto migrant children, since the regulations nowapplied to youth in the community where they

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TABLE 1. Timeline of United States Child Labor Regulations: 1938 Fair Labor Standards Act

Year ActionIndustrysector

Type ofchange Summary of key changes

1938 FLSA∗ enacted All S • First federal statute with child labor provisions towithstand judicial review

1939–1963 17 HOs Non-Ag R • First list of restricted hazardous work activitiesfor minors

1949 Amendments to FLSA forschool attendance as itrelated to employment inagriculture

Ag S • Restricts youth employment in agriculture toperiods outside of school hours of the localpublic school regardless of whether the minorattended that school

1966 Amendments to FLSA forHO for 14- and15-year-olds

Ag S • Clarifies parental exemption• Adopts minimum wage for most agricultural

workers1967 Interim Orders for 16 HO for

14- and 15-year-oldsAg R • Originally prohibited use of tractors by 14- and

15-year-olds1968–1970 Interim Order for HO for 14-

and 15-year-olds(modified)

Ag R • Establishes parental exemption for Ag H.O.s for14- and 15-year-old youth in agriculture†

June 1968—Interim Order modified to allow use oftractors if USDA-sponsored training certificatereceived;

• June 1969—Interim Order modified to allowVocational Agricultural training to qualify for useof tractor training (requested by Office ofEducation).

1970 Final Rule published Ag R • 16 Ag H.O.s modified and condensed to 11(2011—Ag H.O.s remain unchanged)

1974 Amendments FLSA Ag S • 14- and 15-year-olds may work in nonhazardouswork in agriculture outside school hours

• 12- and 13-year-olds may be employed at samefarm as parent or person standing in place of aparent, or with written consent of parent orperson standing in place of a parent to performnonhazardous work outside of school hours

• Permits children <12 years old to work withwritten consent of parent or person standing inplace of a parent to perform nonhazardous workoutside of school hours, on small farms wherethere are no employees who are required to bepaid federal minimum wage

1996 Amendments to FLSA Non-Ag S • Permits 16- and 17-year-old youth to loadspecified paper balers [prohibited fromunloading or operating any paper balers]

1998 Amendments to FLSA Non-Ag S • Prohibits on-the-job driving by minors underage 17

• Permits limited daylight driving of certain trucksand automobiles by 17-year-old youths

2004 Amendments to FLSA Non-Ag S • Permits certain 14- to 17-year-old youth (e.g.,Amish) to work where powered machinery isused to process wood products

1997 NPRM Non-Ag R • Proposal for extensive revisions to HOs1998 • USDOL/WHD funds NIOSH to review all

hazardous orders for agriculture andnonagriculture

2004 Final Rule from 1997 NPRM Non-Ag R • Restricts the types of cooking that may beperformed by 14- and 15-year-olds and limits thecleaning of certain kitchen equipment

(Continued)


TABLE 1. (Continued)

Year ActionIndustrysector

Type ofchange Summary of key changes

• Incorporates into the regulations the FLSAamendments impacting driving and loading,operating, and unloading paper balers andcompactors

• Prohibits all work on or about a roof whileretaining ban on all work in roofing industry

2007 ANPRM and NPRM Non-Ag R • Addresses many of NIOSH recommendations;as well as Reg. 3 for 14- and 15-year-old youth

2010 Final Rule∗∗ adopted from2007 NPRM

Non-Ag R • Most comprehensive changes to federal childlabor provisions in over 30 years

• Revises the CL Reg. 3 occupations standardsgoverning the employment of 14- and15-year-olds. Keeps all previous prohibitions

• Bans door-to-door sales, poultrycatching/cooping, and operation of many typesof power-driven equipment

• Permits work of an intellectual nature, work as alife guard (if >15 years old and properlycertified), and riding in motor vehicles as apassenger under specific conditions

• Revises HO 4 to prohibit most employment inforest fire fighting and prevention, forestryservices, timer tract management, logging, andsawmilling

• Revises HO 7 to prevent riding on forklifts andthe operating/assisting in the operation of mosthoisting equipment regardless of the hoistingcapacity of the equipment

• Revises HO 10 to include poultry slaughteringand processing among the prohibitions

Revises HO 11 to incorporate two long standingenforcement positions that allow 16- and17-year-olds to operate certain portabletable-top mixers and certain pizza dough rollers

2011 NPRM for Agriculture H.O.orders

Ag R • Published September 2, 2011• Available at: http://www.gpo.gov/fdsys/pkg/FR-

2011-09-02/pdf/2011-21924.pdf

∗Provides statutory authority to develop and enforce regulations.†Ag H.O.s do not cover 16- and 17-year-olds.∗∗Rule = enforcement and compliance requirements adopted under the authority of the statute (FLSA).Ag = agriculture;ANPRM = Advanced Notice of Proposed Rulemaking; FSLA = Fair Labor Standards Act; HO = hazardous order; NPRM =Notice of Proposed Rulemaking; Non-Ag = nonagriculture; R = regulatory; S = statutory; USDOL/WHD = United StatedDepartment of Labor, Wage and Hour Division.

worked, whether or not the child attended schoolin the area. However, youth were still permit-ted to perform dangerous and hazardous workoutside of school attendance. Further refinementregarding the parameters of school attendancecontinued to change over time until the final rulewas promulgated in 1970, and finally includedprovisions that the HOs applied at all times,regardless of school status.

Agricultural Hazardous OccupationsOrders (Ag H.O.s)

Until the 1966 amendments to the FLSA,there were no hazardous occupations ordersspecific to agriculture. Congress authorized thecreation of Ag H.O.s, but these only appliedto hired farm workers under age 16. Theseamendments created differential protections for

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employed youth in agricultural versus those innonagricultural jobs, including a minimum ageof 16 for performing hazardous work in agri-culture but age 18 in nonagriculture. Anotherchange at this same time expanded the parentalexemption for youth under age 16 to those work-ing on a farm owned or operated by a parentor by a person standing in place of the par-ent and excluded them from the Ag H.O.s. Thischange permitted more children, covered by theexemption, to perform any work activity at anyage. In addition, similar to the nonagriculturalregulations for 16- and 17-year-old youth, astudent-learner exemption was created for 14-and 15-year-olds students permitting them toperform work otherwise prohibited.

Further amendments in 1974 created excep-tions that allow 12- and 13-year-old youth to beemployed in agriculture as long as parental per-mission was given, and only during nonschoolhours as was the case for other hired youth underage 16. Those younger than age 12 could even beemployed on small farms where the federal min-imum wage requirements did not apply. Therewere no additional protections for those underage 14 and the same Ag H.O.s applied to allyouth under age 16 legally permitted to work.Table 2 provides a comparison of the existingwork restrictions by industry and age group.

One of the original Ag H.O.s prohibited youthunder 16 years of age from operating, driving,or riding farm tractors and certain other machin-ery. However, in 1968, at the request of the USDepartment of Health, Education, and Welfare’sDivision of Vocational and Technical Education,the interim rule was modified to allow 14- and15-year-olds to drive tractors and operate otherfarm machinery if they completed a formaltraining program in the use of this equipment.Since then, this training has been coordinatedby the US Department of Agriculture’s FederalExtension Service.

Over the course of 2 years in the late1960s the USDOL established an AgriculturalAdvisory Committee to evaluate the activi-ties covered by the Ag H.O.s. The final ruleadopted in 1970 included 11 Ag H.O.s. Untilnow, the agricultural child labor regulations haveremained unchanged. On September 2, 2011,the USDOL published the Notice of Proposed

Rulemaking (NPRM)15 to update the ChildLabor Regulations, primarily in agriculture butwith two new nonagricultural HOs in addition.The proposed changes to the regulations aredescribed in a later section of this article.

NIOSH Review of Hazardous OccupationsOrders

In 1998, the USDOL’s Wage and HourDivision provided funding to the NationalInstitute for Occupational Safety and Health(NIOSH) to undertake a comprehensive eval-uation of the then-current child labor agri-cultural and nonagricultural hazardous occupa-tions orders. The 2002 NIOSH report describes35 recommendations concerning the then-existing hazardous occupations orders: 14 rec-ommendations to update the existing agricul-tural hazardous occupations orders (Ag H.O.s),and recommended creation of 17 new hazardousorders in the agriculture and nonagricultureregulations.16 A secondary review of these rec-ommendations was undertaken to determine thecosts and benefits of implementation versus notimplementing these recommendations.17 As aresult, revisions to the nonagricultural HOs weremade and updated regulations became effec-tive in July 2010.18 This process that began in1998 when the Institute of Medicine conveneda committee to evaluate the issues and knowl-edge regarding protecting young workers19.Activities to update all the child labor regula-tions has spanned nearly 15 years, more thansufficient time to consider available informa-tion and data that support the final agriculturalrecommendations described below.

Proposed Updates to the AgriculturalHazardous Occupations Orders (AgH.O.s)

Table 3 provides a list of the original 11 AgH.O.s and compares them with the proposedrevisions.20 The first six Ag H.O.s currentlyallow for a student-learner exemption for those14- and 15-year-old students enrolled in anagricultural vocational education training pro-gram. Some of the proposed criteria to qualify


TABLE 2. Protection of Youth from Hazardous Work by Industry and Age Categories

Agriculture Nonagriculture

Age category FamilyHired employee

(nonfamily) FamilyHired employee

(nonfamily)

<12 years Not protected Protected Protected Protected• Any work• Any time• Unlimited hours

• May do nonhazardouswork with parentalconsent on small farms

• Outside school hours• Unlimited hours

• May do nonhazardouswork


• May work in movie, radio,and theater productionsand newspaper deliveryonly (exempt fromregulations)

• Outside school hours• Work hour restrictions

12–13 years Not protected Protected Protected Protected• Any work• Any time• Unlimited hours

• May do nonhazardouswork with parentalconsent




• May work in movie, radio,and theater productionsand newspaper deliveryonly (exempt fromregulations)


14–15 years Not protected Not protected Protected Protected• Any work• Any time• Unlimited hours

• If training coursecompleted, may operatetractors and machinery(H.O.s 1 and 2)




• May do only thatnonhazardous work theSecretary of Labor hasdetermined to be safeand appropriate. Workthat is not specificallypermitted is thereforeprohibited.


16–17 years Not protected Not protected Protected Protected• Any work• Any time• Unlimited hours

• Any work• Outside school hours• Unlimited hours





for these exemptions are similar to those inthe nonagricultural child labor regulations for16- and 17-year-old youth. It is unknown howmany youth currently qualify for the student-learner exemptions. The proposed changes willstrengthen the requirements for a student-learnerexemption under the Ag H.O.s and are summa-rized in Box 1.

It is important to note that the proposedstudent-learner exemption requirements notonly limit the exposure of youth to hazardouswork, but also details a schedule of progressivetraining to acquire the needed skills, includ-ing relevant safety training, to perform suchwork. However, Ag H.O.s 1 and 2 have allowed

for different criteria for 14- and 15-year-oldyouth to drive a tractor or use other poweredequipment and machinery. A 14- or 15-year-oldyouth who has successfully completed a sin-gle certificate training course under a 4-H orFederal Extension Service or other vocationalagriculture training program can be exempt fromthese restrictions without receiving more thor-ough and ongoing training. For example, once ayouth completes a single training course aboutusing tractors, a certificate of completion qual-ifies them for the complete exemption underAg H.O. 1. No such mechanism exists for sucha complete exemption from the nonagriculturalHOs for 16- and 17-year-old youth.

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BOX 1. Proposed Changes to the Student-Learner Exemption Requirementsfor 14- and 15-Year-Old Youth

• Enrolled in an agricultural vocational edu-cation training program under a recognizedstate or local educational authority, or in asubstantially similar program conducted bya private school.

• Employed under a written agreement thatstates that the work of the student-learnerperforming tasks or jobs listed under an HOis incidental to his/her training.

• Such work is intermittent, for short peri-ods of time, and under the direct and closesupervision of a qualified and experiencedperson.

• Safety instruction is given by the school andcorrelated by the employer with on-the-jobtraining.

• A schedule of organized and progressivework processes to be performed on the jobhave been prepared.

Tractor Hazards and CertificationPrograms

Tractors are a leading cause of injuries andfatalities on farms. Nationally, tractor over-turns are the leading cause of occupationalfatalities in agriculture. Between 1992 and2005, 1412 workers on farms died from tractoroverturns.21 Tractors are also the leading causeof death among young agricultural workers.22

Between 1992 and 1997, nearly one third ofthe deaths of youth in agriculture could beattributed to involvement with tractors. In abouthalf of these cases, the tractor overturned on theyouth.5 The same study reported that machin-ery and vehicles accounted for 72% of fatali-ties among young agricultural workers, most ofwhich involved tractors.

Little has been done to evaluate the effec-tiveness of tractor training programs, and theempirical support for the training exemptionis mixed. An evaluation of the Tractor andMachinery Certification program with 11- to17-year-old youth in Wisconsin found little dif-ference in safety behaviors 1 year after thetraining, and less than one third of parents feltthe program improved the safety behavior of theyouth participant.23 Another study evaluated 14-to 19-year-old youth in the Indiana 4-H trac-tor program and observed participants operatingtractors in a safer and more skillful manner thannonparticipant youth.24 However, there were nodifferences in the injury experience betweengroups, and 4-H tractor program participantsreported more tractor-related close calls and

seemed more willing to take risks while oper-ating a tractor. A more recent study evaluatedthe effectiveness of a state policy requiring 12-to 15-year-old youth to complete a tractor cer-tification course as a means of reducing tractorcrashes on public roads.25 There was no sig-nificant change in the number of youth tractorcrashes on Wisconsin public roads following theenactment of the policy. Although there was anincrease in the number of youth certified, withfew exceptions the tractor certification coursedid not cover the major factors contributing toyouth tractor crashes on public roads.

Training alone does not make a task oractivity age appropriate, especially based ona one-time training certificate. It is essentialto remove youth from hazardous work, ratherthan attempt to train them prematurely to han-dle dangerous machinery or work in hazardousenvironments. If the use of tractors is per-mitted for 14- and 15-year-olds, more com-prehensive training and supervision require-ments, such as those described in the proposal,are needed. The hazardous nature of tractorsrequires additional provisions beyond existingstudent-learner requirements.

In a commentary in this issue, Marlengaet al. present data that show that youngeryouth are not developmentally ready or ableto use tractors or perform other work nor-mally assigned to adults (Marlenga, Lee, andPicket, “Guidelines for Children’s Work inAgriculture: Implications for the Future”; thisissue). The hazardous nature of tractors andother machinery requires additional restrictions


TABLE 3. Agricultural Child Labor Hazardous Occupations Orders

Agricultural hazardous occupations (Ag H.O.s) foryouth under age 16, 1970–present

Proposed agricultural hazardous occupations (Ag H.O.s) foryouth under age 16, 2011

Ag H.O. 1 Retain and expand Ag H.O. 1• Operating a tractor of over 20 power take-off (PTO)

horsepower, or connecting or disconnecting animplement or any of its parts to or from such atractor (student-learner exemption allowed).

• Remove the 20 PTO Horsepower threshold criteria. Smallgarden-tractors would be covered under this Ag HO.

• Continue to allow for a student-learner exemption and requirethat tractors operated by 14- and 15-year-old student-learnersbe equipped with approved rollover protective structures(ROPS) and seat belts, and that the use of seat belts bemandated.– Certificate training options would be eliminated.

• Move the prohibition regarding youth riding on tractors aspassengers from Ag H.O. 7 to this Ag H.O.

•∗Include provisions similar to those proposed in HO 19(non-Ag) prohibiting the use of electronic devices, includingcommunication devices, while operating tractors.

• ∗Require that student-learners operating tractors have a validstate driver’s license to operate tractors and other farmmachinery on public roads.

Ag H.O. 2• Operating or assisting to operate (including starting,

stopping, adjusting, feeding, or any other activityinvolving physical contact associated with theoperation) any of the following machines: cornpicker, cotton picker, grain combine, hay mower,forage harvester, hay baler, potato digger, mobilepea viner, feed grinder, crop dryer, forage blower,auger conveyor, the unloading mechanism of anon–gravity-type self-unloading wagon or trailer,power post-hole digger, power post driver, ornon–walking-type rotary tiller (student-learnerexemption allowed).

Combine Ag H.O.s 2 and 3 [Ag H.O. 2]• ∗Expand prohibitions from lists of specific machines to all

power-driven equipment. [Use of power-driven equipment hasbeen prohibited in nonagricultural industries.]

• ∗Prohibit minors from riding as passengers on all farmmachines when being moved on public roads.

• Youth would be permitted to ride as passengers inside cars,trucks, and buses if certain requirements are met, includingmandatory use of seat belts.

• Revise and strengthen the exemption for student-learners andlimit the types of equipment that student-learners mayoperate.

Ag H.O. 3• Operating or assisting to operate (including starting,

stopping, adjusting, feeding, or any other activityinvolving physical contact associated with theoperation) any of the following machines: trencheror earthmoving equipment, fork lift, potato combine,or power-driven circular, band, or chain saw(student-learner exemption allowed).

• ∗Require that a student-learner operating equipment on apublic road hold a valid driver’s license for such operations(see Ag H.O. 1 above).

• ∗Student-learners riding as passengers must have an“approved seat” with a seat belt; seat belt use is required.

• ∗Include “distracted driving” provisions prohibited use ofelectronic communication devices while operating equipment[as in proposed Ag H.O. 1 and nonagricultural HO 19].

New Ag H.O. 3• ∗Prohibit employment in occupations involving the operation of

non–power-driven hoisting apparatus and conveyers.– A student-learner exemption would not be permitted.

Ag H.O. 4 Retain and expand Ag H.O. 4• Working on a farm in a yard, pen, or stall occupied

by a bull, boar, stud horse maintained for breedingpurposes, sow with suckling pigs, or cow withnewborn calf (with umbilical cord present)(student-learner exemption allowed).

• ∗Expand the current Ag H.O. to prohibit Certain OccupationsInvolving Working With or Around Animals. It would prohibitthe following:– working on a farm in a yard, pen, or stall occupied by an

intact (not castrated) male equine, porcine, bovine, or bisonolder than six months, a sow with suckling pigs, or cow withnew born calf (with umbilical cord present);

– engaging or assisting in animal husbandry practices thatinflict pain upon the animal and/or are likely to result inunpredictable animal behavior such as, but not limited to,branding, breeding, dehorning, vaccinating, castrating, andtreating sick or injured animals;

(Continued)

Miller 173




– handling animals with known dangerous behaviors;– poultry catching or cooping in preparation for slaughter or

market; and– herding animals in confined spaces such as feed lots or

corrals, or on horseback, or using motorized vehicles suchas trucks or all-terrain vehicles.

Ag H.O. 5 Retain and revise Ag H.O. 5• Felling, bucking, skidding, loading, or unloading

timber with butt diameter of more than six inches(student-learner exemption allowed).

• Update: remove the 6-inch diameter threshold and specificallyprohibit the removal of stumps by other than manual means.

∗ New Ag H.O. 6• Prevent employment in construction, communications,

wrecking, demolition, and excavation.• This new Ag H.O. brings many of the protections and

prohibitions already applicable to the employment of 14- and15-year-olds in nonagriculture to the employment of hiredfarmworkers of the same age.

• These proposals address the need to bring parity between theagricultural and nonagricultural child labor provisions.

Ag H.O. 6 Revise and renumber as Ag H.O. 7• Working from a ladder or scaffold (painting,

repairing, or building structures, pruning trees,picking fruit, etc.) at a height of over 20 feet(student-learner exemption allowed).

• Occupations involving work on roofs, scaffolds, and atelevations greater than 6 feet.

• Expand to include work on elevated farm structures includingsilos, grain bins, windmills, and towers; and vehicles,machines, and implements.

• Reduces the maximum height at which youth under age16 may work at elevation from 20 feet to 6 feet, including workon ladders.

Ag H.O. 7• Driving a bus, truck, or automobile when

transporting passengers, or riding on a tractor as apassenger or helper.

Expand and renumber Ag H.O. 7 [incorporate into Ag H.O.s1 and 2]

• Prohibit driving of all motor vehicles and off-road vehicles.• Expand this Ag H.O. to prohibit work as an outside helper on

motor vehicles.• Retain provision prohibiting riding on a tractor as a passenger

or helper, but move it to Ag H.O. 1.

Ag H.O. 8 Expand and split as Ag H.O.s 8 and 9• Working inside a fruit, forage, or grain storage

designed to retain an oxygen deficient or toxicatmosphere; an upright silo within two weeks aftersilage has been added or when a top unloadingdevice is in operating position; a manure pit; or ahorizontal silo while operating a tractor for packingpurposes.

• Prohibit all work inside a fruit, forage, or grain storage (such asa silo or bin).

Ag H.O. 9 Ag H.O. 9• Handling or applying (including cleaning or

decontaminating equipment, disposal or return ofempty containers, or serving as a flagman foraircraft applying) agricultural chemicals classifiedunder the Federal Insecticide, Fungicide, andRodenticide Act (7 U.S.C. 135 et seq.) as CategoryI of toxicity, identified by the word “poison” and the“skull and crossbones” on the label; or Category II oftoxicity, identified by the word “warning” on the label.

• Prohibit work inside a manure pit.Revise and renumber Ag H.O. 9 as Ag H.O. 10• Revise to be consistent with the EPA Worker Protection

Standard for pesticides and redesignate it as Ag H.O. 10.• Ban all work that falls within the EPA classification of pesticide

handler. NIOSH recommends WHD draft the regulation sothat it will not have to be “updated” whenever EPA revises thestandard.

• Use definition of pesticides contained in FIFRA.

(Continued)





Ag H.O. 10 Retain Ag H.O. 10 and renumber as Ag H.O. 11• Handling or using a blasting agent, including but not

limited to, dynamite, black powder, sensitizedammonium nitrate, blasting caps, and primer cord

Ag H.O. 11• Transporting, transferring, or applying anhydrous

ammonia

Retain Ag H.O. 11 and renumber as Ag H.O. 12

New Ag H.O. 13• Prohibit the employment of young hired farmworkers in

occupations involving the production and curing of tobacco inorder to prevent them suffering from green tobacco sickness(GTS).

• Includes, but not limited to, planting, cultivating, topping,harvesting, baling, barning, and curing of tobacco.

Nonagricultural hazardous orders additionsNew non-Ag HO 18• Occupations in farm-product raw materials wholesale trade

industries– Includes, but not limited to: most occupations performed atcountry grain elevators, grain elevators, grain bins, silos, feedlots, feed yards, stockyards, livestock exchanges, andlivestock auctions.

New non-Ag HO 19• The use of electronic devices, including communication

devices, while operating power-driven equipment, includingmotor vehicles.

∗Denotes proposed revisions not based on a NIOSH recommendation.Current Child Labor Requirements under the Fair Labor Standards Act (FLSA):• Agricultural: http://www.dol.gov/whd/regs/compliance/childlabor102.htm• Nonagricultural: http://www.dol.gov/whd/regs/compliance/childlabor101.htm

and provisions beyond any existing student-learner requirement.

Parental Exemption in Agriculture

The “family farm” exemption was built onan agrarian tradition to allow children living onfarms to work with their parents and learn skillsthat often maintain a way of life for genera-tions. The ideal of this tradition has been a costlyone with tragic loss of life.26 During the timeperiod 1998–2002, 60% of fatalities in agricul-ture occurred to youth under age 17 workingon the family farm.3 Hard and Myers5 foundthat family farm youth constituted nearly 54%of work-related fatalities to youth under age16. Over the years, what is more accuratelydescribed as a parental exemption graduallyexpanded to include farms either owned or

operated by their parents or by someone stand-ing in for a parent. Farms that are operatedby parents or parent stand-ins are not typicallywhere the child resides, and the child may notbe under the care or direct and close supervisionof their parents while performing potentiallyhazardous work. In addition, in many farmingfamilies, one or both parents are employed offthe farm for economic reasons or career choices.This situation reduces supervision and assis-tance for the child that would ensure his/hersafety. In many other circumstances, injury pre-vention strategies and other public health mea-sures provide direction to keep children out ofharm’s way in the home and the community.Farm settings should be no exception.

The parental exemption in agriculture, per-mitting children of any age to perform anyand all work activities, has remained unchanged

Miller 175

since the 1966 amendments to the FLSA. Thechanges at that time expanded and broadenedthe scope of the exemption in agriculture beyondwhat is permitted in the nonagricultural employ-ment for youth. It permits children employed ona farm owned or operated by their parents, orowned or operated by persons standing in placeof a parent to be exempt from all parts of theFLSA, including the Ag H.O.s. No such totalparental exemption exists in nonagriculturalemployment. Children employed in their par-ent’s nonagricultural business are still protectedby the nonagricultural HOs and prohibited fromperforming such work. Nor is a child exemptfrom the regulations where a parent stand-inowns a business or where a parent or parentstand-in operates the business but does not ownit. To alter this exemption in agriculture, an actof Congress is required to change the FLSA.

Removal of the parental exemption couldhave a significant impact on reducing work-related injuries among youth. This injuryprevention potential was explored by Marlengaand colleagues through a review of a retrospec-tive case series of youth farm injuries.27 Bysystematically applying the prohibitions of theAg H.O.s to the work activities performed byinjured children exempt from the regulations,they found that greater than 60% of the fatalinjuries and 45% of the hospitalized injuries forthese youth younger than age 16 could be pre-vented. In addition, this study found that raisingthe age-limit required for youth to performhazardous agricultural work from 16 to 18 yearscould potentially prevent more than 50% ofboth fatal and hospitalized injuries among theseolder teens. These potential reductions wouldmeet or exceed the national goals of HealthyPeople 2020 for reducing traumatic injury in

the agricultural sector (see www.healthypeople.gov/2020/topicsobjectives2020/objectiveslist.aspx?topicId=30). Table 4 presents previouslyunpublished data from the Bureau of LaborStatistics26 on the fatalities to youth underage 18, comparing deaths among youth inall industries, in agriculture, and in a familybusiness in agriculture.

Role of Law in Public Health and ParentalPerceptions

One role of government in general, and pub-lic health in particular, is to initiate and provideprotective measures to ensure healthy peopleand communities. This is particularly necessarywhere vulnerable populations such as childrenand youth are concerned. Some believe that cre-ating protective regulations for worker healthand safety, child labor, and other elements thatimpact the health of individuals and commu-nities are unnecessary and stifle job growthand the economy. However, these measuresprevent long-term consequences such as disabil-ity or increased illnesses and premature deaths,not to mention the pain and suffering experi-enced by injured workers, their families, andcommunities.

Voluntary behavior changes based on indi-vidual knowledge and judgment have been lesssuccessful than prevention strategies requiredby law.28 Laws requiring the use of seatbelts,child safety seats, and helmets for bicyclesand motorcycles are examples that have madeimpacts in reducing morbidity and mortality.Acceptance of public health laws can varydepending upon the perception that they mayinterfere with individual autonomy or create abarrier to profit-making practices of a business

TABLE 4. Fatalities Among Youth Working in Agriculture—Family Business comparedto Private Industry Bureau of Labor Statistics Data, 2003–2009

Age All industries All agriculturePercent of deaths

in agriculture

Deaths inagriculture in a

family’sbusiness

Percent of deathsin agriculture in afamily’s business

Under 16 years 184 148 80.4% 66 44.5%16–17 years 183 67 36.6% 21 31.3%Total <18 years 367 215 58.5% 87 40.4%


or corporation. Effective injury prevention lawsand other strategies must primarily serve theirintended purpose. But when the planned out-come is absent or not evident, this createsan additional obstacle to their acceptance andimplementation.

Some pediatric farm safety advocatesdescribe “redefining the unacceptable” as a pro-cess toward changing attitudes and behavior.29

When a community realizes the severity ofoutcomes that result from certain activities,behaviors, or lack of action, members ofthe community may experience a concurrentincrease in their sense of vulnerability. Familiesthat suffer the tragic death of a child or a severeinjury to a child, such as a leg amputationdue to a farm-related incident, may begin theprocess of redefining the unacceptable in theircommunity. Such tragedies often lead to callsfor stronger protections and consequences inthe form of laws, lawsuits, public educationcampaigns, and the like.

Few studies have evaluated parent knowl-edge, attitudes, and beliefs about workplacesafety issues for their teen children. In one study,84% of parents reported that their teens con-veyed workplace safety concerns to them,30 andyet parents often do not know about the laws andregulations that restrict teen work activities.31

Another study of parents found that althoughthey were favorable toward laws that regulateteen work activities, they also believe that par-ents, not laws, should determine what workteens do.32 At the same time, parents indicatedthat it is important that laws limit the kinds ofwork performed and equipment permitted foruse by youth, and they believe that the hoursof work for teens should be limited, particularlyduring the school year. Regarding younger chil-dren working long hours in agriculture, a surveyby the National Consumers League (NCL) of1011 adults found that 96% would not allowtheir own children under age 14 to work morethan 40 hours per week doing farm work, and83% agreed that it is “not okay” for children(their own or other’s) under age 14 to work longhours.33

The role of parents to guide their childrento learn new things, develop responsibility, andearn their own spending money, and yet to

ensure the children’s safety, may at times be aconflicted issue when it comes to the role ofwork in their child’s life. The social context ofwork throughout the age of a child, adolescent,or young adult is beyond the scope of this paper,but can be found in the writings of others.19,34–36

Work must be age appropriate, with directionand limitations provided based on developmen-tal stage, just as any other guidance is given foractivities considered safe for a child according totheir age level. The National Children’s Centerfor Rural and Agricultural Health and Safetydeveloped and evaluated the North AmericanGuidelines for Children’s Agricultural Tasks(NAGCAT) for this purpose.37,38 NAGCAT canserve as a guide for age-appropriate limits onspecific work activities for youth when the pro-tections of the child labor regulations do notlegally apply.

Castillo39 reported a study that indicated thatalthough parents may not be overly concernedabout work-related injuries, they are more likelyto teach their children about safety issues if theyfeel confident about their own knowledge andskills in this area. This underscores the needto increase parental involvement and providemore education to parents, not only about thelaws intended to protect their children, but alsoguidance about placing limits on work activi-ties based on their child’s age and individualcapabilities, such as the NAGCAT mentionedearlier.

NEW PROVISIONS OF THE UPDATEDCHILD LABOR REGULATIONS

The USDOL’s proposal would adopt all14 of the NIOSH recommendations for agri-culture described in the 2002 NIOSH report,National Institute of Occupational Safety andHealth (NIOSH) Recommendations to theUS Department of Labor for Changes toHazardous Orders.16 The proposed revisions tothe Agricultural Child Labor Rules increase theprotections for youth by expanding, updating,and clarifying most of the existing Ag H.O.sand by adding three new Ag H.O.s. The pro-posal also removes the existing student-learnerexemptions from four of the first six Ag H.O.s,

Miller 177

and the criteria for the remaining ones underAg H.O.s 1 and 2 are strengthened. Severalof the updated elements are more similar tothe student-learner exemption requirements forolder youth employed in nonagricultural jobs.Table 3 compares the existing list of Ag H.O.swith the proposed changes.20 The proposal alsoincludes two new non-Ag HOs that will increaseprotections for all youth under age 18.

The first of the new Ag H.O.s, designatedas Ag H.O. 3, would prohibit youth under age16 from employment in occupations involv-ing the operation of non–power-driven hoist-ing apparatus and conveyers. A student-learnerexemption would not be permitted. The new AgH.O. 6 would prohibit employment in construc-tion, communications, public utilities, roofingand work on or about a roof, wrecking, demo-lition, and excavation. This new Ag H.O. makesmany of the protections and prohibitions alreadyapplicable to the employment of all minorsunder age 18 in nonagriculture comparable forhired farm workers under age 16. These changesincrease parity between the two sets of childlabor provisions by increasing the protectionsfor youth under age 16 working in agriculture.

Another new Ag H.O., designated as Ag H.O.13, will prohibit the employment of young farmworkers in occupations involving the produc-tion and curing of tobacco in order to pre-vent them suffering from green tobacco sick-ness (GTS). This includes all work in theplanting, cultivating, harvesting, and curing oftobacco. GTS is an occupational illness of acutenicotine poisoning from skin exposure to thegreen and typically wet leaves.40 Symptomsinclude weakness, dizziness, headache, nausea,vomiting, cramps, respiratory difficulty, insom-nia, and anorexia. A number of studies havereviewed cases of GTS poisoning affecting chil-dren and adolescents.41 Children are known tohave a higher sensitivity to toxic exposuresleading to more severe symptoms at a lowerdose than adult exposures (Karr, “Children’sEnvironmental Health in Agricultural Settings”;this issue).

The proposal would strengthen Ag H.O.s1 and 2 by placing limits on the student-learnerexemption for 14- and 15-year-old youthenrolled in agricultural vocational education

programs, and include additional criteria forthese youth to qualify to use tractors, vehicles,and other machinery otherwise prohibited. Thisstudent-learner exemption becomes more con-sistent with, and even stronger than, the oneavailable for 16- and 17-year-olds employed innonagricultural work. This exemption requiresa baseline of at least 90 hours of school train-ing followed by ongoing and specific training inorder for the minor to be permitted to performotherwise prohibited work and eliminate theone-time certificate option currently allowed.The type of work that student-learners would bepermitted to perform has also been limited inscope.

Grain Handling Facilities: Addition ofNew Nonagricultural Hazardous Order

Under the current child labor laws, no oneunder age 16 is permitted to work in a silo orgrain elevator on a farm within 2 weeks aftersilage has been added. The proposed changesto Ag H.O. 8 will prohibit all work inside anyfruit, forage, or grain storage bin or silo locatedon a farm for any youth under age 16. Underthe nonagricultural HOs, youth under age 16 arealready prohibited from working in or aroundcommercial grain handling facilities. However,this is an example of where the current haz-ardous occupation orders are not sufficientlyprotective for all minors, including 16- and 17-year-old youth. The rules limiting hazardouswork in agriculture do not cover 16- and 17-year-old youth, and the current nonagriculturalregulations do not address work in commercialgrain handling facilities, such as grain elevators.As a result, these youth are exposed to extremelydangerous work that has been shown to behazardous to all workers. The proposed newnon-Ag HO 18, Occupations in Farm-ProductWholesale Trade Industries, would prohibit 16-and 17-year-old minors from working in anyoccupation associated with them. The followingsummary of information compiled by PurdueUniversity, and the case examples presented inBox 2, support and demonstrate the need tostrengthen both child labor and health and safetylaws and their enforcement.


BOX 2. Fatal and Disabling Injuries Involving Grain Handling FacilitiesCase 1In July 2010, two teenagers (aged 14 and 19)were killed in a tragic incident involving agrain elevator in Illinois. Both young workerssuffocated after being engulfed in a grain binthey had entered to help clear. A third youngworker (age 20) was pulled out of the stor-age bin alive, and was hospitalized after beingtrapped for 12 hours. Another minor, aged 14,was in the bin but escaped to get help; anda 15-year-old youth was working in the con-trol room outside but had been in another binthe day before. OSHA issued 24 citations forviolations, most of which were determinedto be willful or serious. The employer wasfined $555,000, but in a settlement with OSHAagreed to pay $200,000. The Wage and HourDivision (WHD) found the employer in vio-lation of the agricultural and nonagriculturalhazardous occupations orders and assessedfines of $68,125 in civil money penalties. Theviolations included employing two minors toclimb on top of a 48-foot-high grain bin andto enter the bin; employing and requiring two14-year-olds and one 15-year-old to work inoccupations involving warehousing or trans-portation; and requiring one minor to operatea power-driven hoisting device. All of theminors worked over the allowed number ofwork hours. The elevator ceased operationsduring this time. The news release about thisincident can be found on OSHA’s Web pageat www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=NEWS_RELEASES&p_id=19143.

Case 2On November 23, 2009, OSHA fined TempelGrain Elevators LLP more than $1.5 millionfollowing the death of a 17-year-old worker onMay 29, 2009 at the company’s grain storageoperation in Haswell, Colorado. The youth suf-focated after being engulfed by grain in one ofthe facility’s bins. The company also exposedthree other youth, a 17-year-old and two 18-year-olds, to these same hazards. In total, theWHD found 77 child labor violation involv-ing 15 minor employees, ages 14 to 17 yearsfor violations under the nonagricultural childlabor regulations for performing prohibited

work or operating prohibited hazardous equip-ment. The fines assessed totaled $64,487. Thecompany settled a lawsuit, which includes adecision not to hire anyone under the ageof 18. The news release for this about thisincident can be found on OSHA’s Web pageat www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=NEWS_RELEASES&p_id=16761.

Case 3In 2011, two teenage boys, both age 17, wereseriously injured at Zaloudek Grain Company,a grain elevator in Kremlin, Oklahoma, eachlosing a leg in addition to sustaining othersevere injuries. Both are recovering and willhave a great deal of rehabilitation ahead ofthem. Their lives have been changed forever.At their local high schools, both were suc-cessful athletes. Working at this facility wasa summer job turned life-threatening and life-altering in an instant. While working at thegrain elevator, one teen became caught inthe auger. In an effort to save him, the otherslipped and was trapped as well. OSHA citedthe company with four serious violations andproposed penalties of $21,000. More infor-mation can be found at www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=NEWS_RELEASES&p_id=21768 The WHDalso investigated this incident but the out-come is not available at the time of thispublication. Unfortunately, the boys are noteligible for worker’s compensation benefitsbecause the employer failed to carry the state-required workers’ compensation coverage. InOklahoma, although the employer violatedstate law to carry this insurance coverage, theinjured workers are not eligible to receive ben-efits even if the employer violated the law. Inthis instance, the employer was only fined $75by the Oklahoma Department of Labor for fail-ure to comply with its obligations at the timeof the incident. As a result of the employer’snegligence, the families of both boys mustbear all medical costs associated with theinjuries, including recovery and rehabilitation.To cover these enormous costs, the commu-nity has provided support through numerousfundraisers.

Miller 179

Grain silos and grain storage bins are oneof the more persistent and tragic hazardson farms and other agricultural services suchas commercial grain elevators. Since 1978,Purdue University’s Agricultural Safety andHealth Program has documented grain entrap-ment cases in the United States.42 Unlike someother farm-related injuries that have decreasedover time, injuries and fatalities due to grainentrapment has been on the rise.42 Historically,70% of documented entrapments occurred onfarms exempt from the OSHA Grain HandlingFacilities standard (29 CFR 1910.272).43 During2010, there were 51 documented grain entrap-ments, the highest number ever recorded in asingle year. Six incidents (12%) involved youthunder age 16; all but one resulted in death.Until 2005, 74% of all documented entrapmentsresulted in death, and in 2010 the percentage ofincidents resulting in death decreased to 51%.These numbers do not reflect the full scopeof the problem, since there is no comprehen-sive reporting system. In addition, it shouldbe noted that fatalities in these settings canmultiply when others attempt to rescue vic-tims.

After a series of fatal incidents, OSHA con-tacted approximately 10,000 operators of grainelevators and other storage facilities in 2011 toremind them of their safety responsibilitiesand alert them to recent incidents involvingfatalities among youth and adult workers (seehttp://www.osha.gov/asst-sec/Grain-Letter-2-1-2011.html). Several of these cases aredescribed in Box 2 and demonstrate the need torestrict youth from working in or around thesefacilities.

LIMITATIONS OF THEAGRICULTURAL CHILD LABOR

REGULATIONS

The proposed changes described in theNPRM include major and important changesneeded to protect children working in agri-culture. However, not all children are equallyprotected. The following describes the keyexclusions of the current rules under theFLSA.

Age Groups Not Covered

• The children of farm owners or operatorsare excluded.

• Sixteen- and 17-year-olds are excludedbased on the amendment in 1966.

• Youth under age 14 may perform thesame work as 14- and 15-year-olds anddo not have additional protections. Forexample:• Twelve- and 13-year-old children are

permitted to perform the same tasks as14- and 15-year-old youth, except wherea student-learner exemption is allowedyouth must be at least age 14 to performthose tasks.

• Children under age 12 are also permittedto work on small farms where the fed-eral minimum wage does not apply andperform the same work activities underthe same conditions as those listed for12- and 13-year-old youth.

Work Intensity Not Addressed

The nonagricultural regulations restrict thehours-of-work for 14- and 15-year-old youthduring school and nonschool weeks, includ-ing times they may start and stop work in themorning and evening and the number of workhours they are permitted per day and per week.Some states also restrict the hours-of-work for16- and 17-year-olds as well. The agriculturalchild labor regulations do not restrict workhours for any youth, except that youth maynot work during scheduled school hours. Theamount of time spent working per day and perweek (i.e., work intensity) and how early andlate one works can have serious consequences,particularly for youth. There is a great dealof information about the impact of too muchwork on school performance and educationalattainment, sleep, minor delinquent behaviors,and less time spent with family, friends, orengaged in other age-appropriate activities.19

The United Nations Children’s Fund (UNICEF)has defined child labor in terms of excessivehours of work based on age and type of work,which could serve as a possible guide in theUnited States.44


Other Hazardous WorkingConditions—Heat Stress

A significant hazardous working conditionin agriculture not addressed by these rules isthat of temperature extremes, particularly heat,that can lead to a range of heat-related illnessesand even death. Each year, OSHA estimatesthat thousands of workers who work outdoorsbecome ill from heat exposure on the job, andmany even die.45,46 Public Citizen submitteddetailed comments to USDOL regarding theincreased vulnerability of youth to temperatureextremes.47

In 2008, a 17-year-old farm worker whowas also pregnant suffered from heat exposurewhile pruning grapes and died 2 days later. Twostates (California and Washington) have promul-gated heat-stress health and safety regulationsthat protect workers of all ages. These regula-tions establish work rules based on temperaturethresholds that allow for rest breaks and accessto shade and water. There is no comparablerequirement under federal OSHA regulations.Consequently, a new Ag H.O. addressing heatstress should be considered under the agricul-tural child labor regulations to protect youngworkers under age 16. This would also con-tribute to reducing the total number of hoursthese youth would be permitted to work in a sin-gle day, and reduce other impacts of workinglong hours.

Changes Needed in the FLSA

In order to provide some of the protectionsto minors who are currently excluded, suchas older and younger minors, and children offarm owners or operators, legislation passed byCongress is needed to change the FLSA. Forinstance, the Children’s Act for ResponsibleEmployment (CARE Act), HR 2234, was rein-troduced in 2011 by Representative LucilleRoybal-Allard (D-CA). Although many feel itdoes not go far enough, a key provision ofthe CARE Act, if passed, would increase theage for the Ag H.O.s and extend protections to16- and 17-year-old youth. However the CAREAct does not include a provision to removethe exemption for children working on farms

owned or operated by their parents.48 By com-parison, the nonagricultural child labor rules theparental exemption does not permit any youthunder age 18 to perform work prohibited by theHOs.

Enforcement Issues

The recent regulatory update is a signifi-cant step in directing employers toward longoverdue improvements for protecting youngfarm workers. Improved regulations must beaccompanied by increased resources and com-mitment to enforce them. In recent years,the USDOL has made strides to increase itsenforcement efforts; however, more improve-ment is needed. The report released by HumanRights Watch in May 2010, Fields of Peril:Child Labor in US Agriculture, identified thatthe Wage and Hour Division’s enforcementefforts have been weak.49 In a separate eval-uation, Human Rights Watch also found thatalthough USDOL increased its number ofinspectors from 894 in 2009 to 1035 in 2011,an increase of nearly 16%, agricultural inspec-tions dropped by 9% from 1379 in 2009 to1259 in 2010. This corresponds to a decreasein child labor violations and monetary penaltiesassessed.50

In addition to strengthened enforcementactivities, resources for outreach and educa-tion efforts must be allocated to reach employ-ers, youth, parents, teachers, and farm orga-nizations, among others. The combination ofenforcement, outreach, and education is criti-cal to protect children working in agricultureand is discussed in detail elsewhere in thisissue (Lee et al., “The 2012 Blueprint forProtecting Children in Agriculture—ExecutiveSummary”).

States can and do provide additional pro-tections to working youth by promulgatingtheir own rules that may augment or exceedthe requirements of the USDOL. WashingtonState, for example, includes protections for allyouth under age 18 under the list of prohib-ited and hazardous duties, including a numbernot listed under the federal regulations, and alsorestricts the hours of work for all youth underage 18.51

Miller 181

RECOMMENDATIONS

Since 1996 the National Farm MedicineCenter has focused attention on protectingchildren in agriculture through an advisory andconsensus-building process to develop NationalAction Plans. The recommendations includedspecific strategies that are relevant to updatingthe child labor regulations on a periodic basis,including the most recent proposal. For instance,the initial 1996 National Action Plan, Childrenand Agriculture: Opportunities for Safety andHealth, recommended that no child under age18 be permitted to operate a tractor withoutrollover protection structures (ROPS) and seat-belts; and that youth must be at least 16 yearsof age and hold a valid driver’s license to bepermitted to operate farm vehicles on a publicroadway.52 Although it is a positive step thatthe current NPRM includes a requirement forROPS, seatbelts and valid driver’s license, itwill, if adopted, only address youth under age16, not anyone under 18 as recommended by the1996 National Action Plan.

The National Action Plan also recommendedadequate funding be provided for the neces-sary enforcement of the child labor laws andcollection of penalties when violations occur.The report also recommended against group- orindustry-wide waivers or exceptions, which thenensures a more uniform application of the regu-lations and the protections they provide. Anotheridentified priority is the need to provide ade-quate workers’ compensation coverage to chil-dren and their families for workplace injuriesand illnesses including for medical care, andcurrent and future wage loss.

The 2001 Summit on Childhood AgriculturalInjury Prevention, an outgrowth of the1996 Action Plan, further recommendedthat NIOSH, the Environmental ProtectionAgency (EPA), and other agencies worktogether to establish age-appropriate exposurelimits for agrochemicals, solvents, noise, andwork activities contributing to cumulativetrauma injuries, to name a few.53 The EPA,responsible for the Worker Protection Standard(WPS) on the use of pesticides, should limitthose who can mix, load, and apply pesticideswith a minimum age of 18. Currently, the WPS

does not restrict these work activities by ageeither for those who handle pesticides or forreentry intervals for those performing field workactivities.

The 1996 and 2001 recommendations stillrequire attention and five additional recommen-dations are proposed for action, including thefollowing:

1. Increase and facilitate collaboration topromote outreach and education efforts.Develop partnerships and utilize collab-orative efforts to reach relevant stake-holder groups and concerned entities,including NIOSH, US Departments ofAgriculture, Education, Labor, Health andHuman Services, and EPA. Increase out-reach and education about the agriculturalchild labor regulations to teens, parents,teachers, employers, child and youth advo-cacy groups, and farm worker organiza-tions, particularly immigrant populationsand Anabaptist communities.

2. Increase enforcement efforts.Regulations alone are not sufficient to pro-vide the intended protection without acommitment to enforcement and dedicatedresources necessary for these activities.Consistent and comprehensive enforce-ment of regulations is essential. Adequateappropriation of funds for enforcementresources, including sufficient staff andthe infrastructure necessary for processingviolations and the collection of penalties,must be made available. Oftentimes, how-ever, enforcement leads to “prevention,”but only after the fact of a tragic incident.Enforcement measures following a seri-ous or even fatal injury sends a messageboth to the employer where the incidentoccurred as well as others who learn fromthe example it sets. The tragedy at theTempel Grain Elevators described earlierhas led to the employer’s decision not tohire anyone under age 18 in the future.

3. Create parity with the nonagriculturalhazardous orders.The need to create parity between thenonagriculture HOs and the Ag H.O.sbased on risk is not a new idea. There is


no scientific or developmental basis thatthese industries be regulated differently,particularly when agriculture remains oneof the most hazardous industry sectors foradults and youth alike. The FLSA mustbe amended to provide equal protectionsto 16- and 17-year-old youth regardlessof where they are working. The minimumage for work in all industry sectors shouldbe consistent, such as age 14 as it is fornonagricultural employment.

4. Remove the parental exemption.The ideal of the tradition of children work-ing on their family’s farm without thelimitations that apply to other workingyouth has been a costly one with tragicloss of life. The exemption has graduallyexpanded to include other farms other thanwhere children live, and therefore maylack direct and close supervision of theirparents while performing potentially haz-ardous work. Injury prevention and otherpublic health measures provide directionto keep children out of harm’s way inmany circumstances in the home and thecommunity; farm settings should be noexception. At a minimum the exemptionfor children should only extend to workon farms owned by a parent. And in thosecircumstances, the Ag HOs should stillapply.

5. Hold parents accountable.Parents are responsible for ensuring thesafety of their children at home andin community settings. Likewise, par-ents or guardians should be held legallyaccountable for the safety of their childrenexposed to known hazards on farms ownedor operated by them. Throughout theirchild’s developmental milestones until age18, parents are provided explicit guid-ance in most circumstances to ensure theirchild’s safety. For instance, use of carseats and seat belts and use of helmets forbiking and skiing are either required orencouraged.

State or local child protective servicesprograms hold parents accountable byremoving children from parents’ custodywhen egregious circumstances prevail or

when there is a pattern of putting a childin harm’s way. An example of an instancewhen legal sanctions have been used iswhen a child is left in a car unattended,particularly on a hot day when a fatalityoccurs. Similarly, there may be instanceswhere consideration should be given tohold parents accountable regarding lapsesin safeguarding their child and where seri-ous injury or death occurs in a farm set-ting, such as when a 7-year-old is killeddue to a rollover of the tractor s/he wasoperating.

The family farm setting blends a combi-nation of health and safety hazards foundin the home and work environment, andtherefore should be held to the same stan-dards of protection for children exposed tothese same hazards elsewhere. Althoughthere are efforts to provide educationand guidance to parents regarding age-appropriate activities, providing safe playareas, and promoting child care options,the injury and fatality data on family farmsindicate that these measures alone are notprotective enough. Children who are notafforded the protections imposed by therestrictions of the regulations are morevulnerable to these hazards, which must becontrolled by adults responsible for them.

Parents naturally want to protect theirchildren from harm and this recommenda-tion may initially evoke a negative reac-tion. Parents are busy juggling many pri-orities and may not always be aware ofthe consequences of some of the activi-ties that are a routine part of the home-work environment. This recommendationis intended to promote a dialogue aboutwhat has been viewed as a part of certaincultural traditions, and to begin to redefinethe unacceptable as when children are per-mitted to operate dangerous machinery orperform other hazardous work not appro-priate for their age and, as a result, areseriously injured or killed in the process.

In the meantime, although not intended forchildren of all ages, the agricultural childlabor regulations can provide guidance for the

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minimum level of protection needed for chil-dren of specific ages whether or not a regulatoryimperative exists. However, they serve as a pointof reference or benchmark for adults to makedecisions about assignment of safe, appropriatework. The regulations in conjunction with theNAGCAT guidelines that cover younger chil-dren and more tasks can create a comprehensivetool for parents. However, it clear that more edu-cation and outreach is needed to provide morespecific guidance to parents so they may morefully understand the limits that are needed forchildren who live, work or play in these settings.

SUMMARY

This article provides historical backgroundinformation about the child labor regulationsin the United States, with an emphasis onagriculture. A comparison with the protectionsunder the nonagricultural child labor regula-tions and an overview of the proposed changesand improvements was also included. Adequateenforcement efforts and a range of outreachand educational strategies are also necessary toensure they are successfully implemented.

Information presented here and in other arti-cles in this special issue clearly indicates thatprotection for young farm workers remainsinsufficient. In particular, large groups of chil-dren are left at risk due to continued gaps inthe FLSA that have persisted and allowed tocontinue since the era of protecting workingchildren began in 1938. Key changes toward thisgoal require that Congress take action to changethe FLSA and eliminate the long-standing dis-parities that leave large numbers of childrenunprotected.

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