I am from the Government and I Am Here to Help -- Stepped Up Enforcement of Child Labor Laws Would be a Good Thing
"You can't regulate child labour. You can't regulate slavery. Some things are just wrong"
- Michael Moore
Previously I blogged on the enforcement of state child labor laws. See https://www.awrcounsel.com/blog/2023/5/3/nooooooooooo-backsliding-on-state-child-labor-laws. This blog is intended to address the federal backstop. As you probably know, the Fair Labor Standards Act (“FLSA”) also addresses child labor along with its better known minimum wage and overtime requirements. The FLSA regulates the hours of work of minors under age 18. There are different rules for employment under age 14 (basically family-related workers on family-owned farms), age 14 to 16 years old (non-agricultural occupations which are not hazardous with time of day and hours of work limits), and age 16 to 18 years old (with restrictions on hazardous occupation). The federal rules supplement but do not preempt stricter state regulations. Thus, the federal rules form a backstop even in states which have relaxed their child labor requirements, as I blogged about earlier.
The two most recent poster boys for child labor violations are the meat packing industry and the fast food industry.
The meat packing industry found itself in the sights of TV news show 60 Minutes. You know it’s not a good day when 60 Minutes shows up at your door looking for comments. Here the reporters found that meat packing companies were employing (usually illegal alien) children to work as janitors overnight in their facilities. In a world of 3.4% unemployment, it is hard to find workers to perform these less than desirable jobs, and thus some businesses have turned in some cases to child labor to fill the void. But the fact is this is an ugly employment practice. Often the blame for bad conduct is being placed on the so-called independent contractor community that big businesses use to manage this kind of low skilled work, rather than the large businesses themselves. But ultimately, the prime contractors are responsible to supervise and prevent this kind of conduct by their subcontractors, at least when it comes to wage and hour issues like child labor.
The fast food industry has often been the gateway for entry of young American workers into the economic world. I remember seeing an astounding statistic once about how many young people get their first job experience at McDonald’s. Whatever the data, it is clear that fast food companies have an outsized obligation to make sure the first experience of young workers is lawful. In that respect, the franchise model used by these companies has sometimes fallen short. McDonald’s has corporate-owned restaurants, and they seem to be better at obeying child labor laws. But most of the McDonald’s chain restaurants are franchisees. For example, on May 2, 2023, DOL issued a press release detailing its investigation of three McDonald’s franchisees for child labor violations. To be clear, this wasn’t the policy of McDonald’s corporate. It is their franchisees, and even then, only certain ones who are problematic. These franchisees usually have multiple locations and some of them are prone to cut corners.
Bauer Food, LLC, a Louisville, KY, operator of 10 McDonald’s locations, for example, was found to employ 24 minors to work more than the legally permitted hours for children under age 16, whether school was in session or not. They also had a 10-year old working the fryer, albeit unpaid, and sometimes remaining at work as late as 2 AM. One of the children operated a deep fryer, a prohibited task for workers under age 16. CBS reports in a May 2, 2023, story that another employer of a 15-year old child working a fryer suffered hot oil burns while using a deep fryer at a McDonald’s franchise in Morristown, TN. Think of that the next time they ask you if you want fries with your meal. That is a “not” so happy meal.
Bauer Food told CBS News that the 10-year old was the child of a worker and regularly visited their parent who worked as a night manager. They claim the child was not approved to be working but did so at the behest of their parent. Bauer was fined nearly $40,000 in penalties for its violations. Two other McDonald’s franchisees also figured into multiple child labor violations involving a total of 305 minors. Altogether the three franchisees were assessed about $212,000 in fines, DOL reports. https://www.dol.gov/newsroom/releases/whd/whd20230502-0.
It appears that child labor violations are rising. DOL found 688 cases involving multiple minors working in hazardous occupations in fiscal year 2022, the highest count since fiscal year 2011. Id. That likely is just a fraction of the problem.
Of course, some of these problems are inadvertent rather than willful. And some of them are just ignorance of the law. But when it comes to child labor, my view is that we need as a society to increase our vigilance, and not relax our enforcement. And we need to exact penalties for miscreant behavior. This is no small thing, despite the small amount of money in fines that is involved.