Across the U.S., a new wave of legislation seeks to amend the rules for minor workers. Proponents argue that the trend aims to help employers cope with a talent shortage, but observers in and around the employment law sphere advise caution.
At least 14 states have introduced or enacted laws within the past two years that relaxed child labor restrictions, according to an analysis by the Economic Policy Institute, a left-leaning think tank.
The nature of each rollback varies by jurisdiction. In New Jersey, for example, lawmakers passed legislation in 2022 to expand summer working hours for minors between the ages of 16 and 18, as well as increasing the amount of time a minor may work before taking a break.
Other laws target specific industries. New Hampshire is one of several states that relaxed age restrictions for minors working in alcohol-serving establishments, reducing the age at which minors may clean tables, empty containers and glasses, and assist in stocking at such businesses from 15 to 14. The same law also extended work hours that minors may work during the school year.
Federal crackdown highlights risks
One common justification for such laws is to ease what some have called a nationwide worker shortage, Rob Wilson, president at HR consulting firm Employco, said in an interview. A report published in June by The Josh Bersin Co. and AMS found that time-to-hire rates increased to an all-time high average 44 days during the first quarter of 2023.
Despite legislators’ intentions, there are a number of factors that HR teams may need to consider before taking advantage of the flexibilities new child labor laws introduce, Wilson said.
Not the least of these considerations is the approach taken by federal law enforcement agencies. Under the Biden administration, the U.S. Department of Labor has conducted several investigations into alleged child labor violations resulting in high-dollar penalties for employers.
Perhaps the most noteworthy case came to light in February, when DOL announced that Wisconsin-based Packer Sanitation Services Inc. paid $1.5 million in penalties after an investigation found at least 102 children ages 13 to 17 were illegally employed at meat processing facilities in Arkansas, Colorado, Indiana, Kansas, Minnesota, Nebraska, Tennessee and Texas.
That same month, news broke that DOL had been in talks with Hyundai Motor Group over child labor violations within the automaker’s supply chain. Later, the agency levied thousands in child labor-related penalties to companies including three Kentucky-based McDonald’s franchisees as well as a Minnesota food manufacturer.
DOL set the tone for enhanced enforcement of child labor laws early this year, announcing in February that it had formed an interagency task force to tackle exploitative child labor situations. Just weeks ago, DOL provided an update on the task force’s progress, stating that its Wage and Hour Division concluded 765 child labor cases between October 2022 and July 20, 2023, resulting in more than $6.6 million in penalties.
“While there still remains much to do in the effort to root out child labor in this country, the Biden-Harris administration, the Department of Labor and the Task Force and its members are fully committed to using every governmental lever possible under federal law and current funding levels to stop the exploitation of young people in workplaces across the country,” Julie Su, acting labor secretary, said in a statement accompanying the task force update.
The creation of the interagency task force, combined with the hundreds of active child labor investigations, indicates that federal regulators are taking the topic “very seriously,” said Samuel Haaz, associate at employer-side firm Fox Rothschild.
According to Haaz, even entities that are compliant with state child labor laws may not be spared federal scrutiny; “It doesn’t appear to me that the DOL will give any deference to a state law that they feel is in conflict with the [Fair Labor Standards Act],” he said. “I would advise employers to make every effort to comply with the FLSA, particularly where it may be in conflict with a recently passed state law.”
Child labor raises questions about worker training, safety
While state child labor rollbacks may revise regulations around work hours and age requirements that could make it easier to employ younger workers, the laws typically do not spell out specific additional training requirements for these workers, said Wilson.
Employers that decide to employ minor workers should take a close look at safety and training requirements for the jobs in which those employees will work, he continued; “The biggest exposure that we see is the safety and training,” Wilson said, adding that minors “should definitely receive the minimum level of training that an adult would receive, if not more.”
The point on safety and training may be particularly salient for operations in more hazardous sectors, said Haaz. For example, Iowa’s recent child labor law revisions permit workers as young as 14 to work some industrial laundry and meat production jobs.
“I would say it’s important to ease them in slowly and give them some sort of mentor or buddy who has been there a long time and is reliable [and] who can indicate whether they are making progress or not,” Haaz said of younger workers in more dangerous occupations. “I would not put them on the most difficult shifts right away.”
‘I would say that is the wrong strategy’
Removing child labor restrictions has not gone without controversy, and commentators have been quick to point out the arguably anachronistic messaging implied by doing so. Outlets like The Washington Post note that some of these efforts have received backing from groups such as the right-leaning think tank Foundation for Government Accountability.
On its website, FGA states that steps such as removing youth work certification and permitting requirements — a measure adopted by states including Arkansas, Georgia, and Missouri — remove administrative barriers between younger workers and job opportunities, restore parental decision-making rights and ease labor shortages.
But removing those restrictions is not the only way to address labor shortages or encourage youth employment, said Nina Mast, an economic analyst with EPI’s Economic Analysis and Research Network. Employers, Mast continued, could explore training pathways for minors such as pre-apprenticeship training.
“If employers feel that their only strategy to [combat labor shortages] is to open those jobs to youth who have historically been barred from that work, I would say that that is the wrong strategy,” Mast said.
Another criticism levied at employing younger workers is that doing so often comes at a discount, thanks to state laws that allow employers to pay younger workers a subminimum wage below that which may legally be paid to adult workers. At the federal level, the FLSA permits employers to pay workers under 20 years of age no less than $4.25 an hour during the first 90 consecutive calendar days after initial employment.
Employers that take advantage of subminimum wages are saving $3 at minimum, Wilson said, depending on where they operate. Additionally, the availability of subminimum wages means that employers also pay less in claims in the event that a younger employee is hurt on the job, he added. But “if a kid gets hurt, who knows what type of lingering injury [they] might have at an unsafe workplace,” Wilson said.
Pay has already been a thorny subject for workers, particularly those in industries heavily impacted by the pandemic. A 2021 One Fair Wage report found that wages and tips were a common reason restaurant workers left their jobs, Restaurant Dive reported, alongside COVID-19 safety concerns and issues related to customers.
“If employers would like to fill jobs in their workplace, they need to raise wages — that’s how labor markets work,” Mast said. “Simply eroding the floor is not the right approach.”
How immigration issues intersect
Child labor also is intertwined with immigration issues, Mast said. In April, NBC News reported that young workers hired by Packer Sanitation Services used stolen identities in order to get hired, and the outlet reported in June that meatpacking firms have allegedly hired underage migrant workers.
DOL’s task force includes human trafficking and exploitation of migrant children among its focus areas, and employers need to be attentive to human trafficking issues when hiring workers, Wilson said.
Employers should be careful when conducting age verification as part of the Form I-9 process, Haaz said. Verification issues can put employers in a difficult situation, “but ultimately, they’re going to be held responsible for hiring an employee who’s underage,” he added.
Young migrant workers may be compelled by their circumstances to work in especially dangerous jobs, Mast said, particularly due to larger issues within the U.S. immigration system. Migrant workers, she added, may need to wait years in order to receive work authorization. But the rolling back of work permitting requirements for minors may make it even more difficult to counter human trafficking schemes.
“We’re certainly concerned that that could open up room for more exploitation,” Mast said
