Through most of human history children were expected, as part of the family unit, to work to earn a living from an extremely young age, often younger than ten years. The work was usually agricultural, long hours working at increasingly demanding tasks in the open air, but with family and tribal members working in conjunction with the child. It is perhaps important to realize that for most of the last two thousand years, life expectancy for the average person did not exceed forty years of age in any event. A ten year old was roughly equivalent to a twenty year old in today’s world when percentage of life lived is considered.
The industrial revolution which steadily pushed workers into unsanitary and dangerous occupations in large airless locales within polluted cities changed the nature of child labor, and most people are aware that for well over fifty years, children were without any protection from the State in terms of their job requirements. Indeed, in some occupations such as mining and chimney sweeping, their small size was an advantage, and most children of the poor worked fourteen hour days, six days a week, with a half hour for lunch during much of the nineteenth century.
It was the now discredited Victorian era that halted that practice in England in the 1840’s, passing increasingly stringent laws protecting child laborers which were slowly but surely enforced as the Century progressed. The United States followed, albeit with numerous companies claiming that the State would impose upon business restrictions that could only hurt competition. Only when Theodore Roosevelt finally cemented the concept of the “partnership” between big business and a big government and insisted that the government should act as the “fair referee” between business and labor was the trend clearly established that children would be either eliminated from the workplace or their labor restricted closely.
While the advanced industrial nations have largely passed and enforced strict protections, it is clear that much of the Third World not only freely uses child labor, but does so with multinational companies often enjoying the cost cutting that such labor allows. Increasingly, the more ethical multinationals are seeking to limit such use but it is sadly still widespread in many nations. It is often commented that without child labor being allowed in such locales, the children would have no resources at all and would be starving on the streets.
This article shall examine the protections and restrictions imposed on a federal level in the United States. Each State has its own child labor law provisions which usually mirror the Federal protections but at times may be even more restrictive. Federal law is almost always at least the minimum restriction that will be imposed.
United States Background
In 1938, partly in response to the Depression, Congress passed the Fair Labor Standards Act (FLSA). This law sought to protect workers from long hours and unfair pay by establishing a 40-hour work week and a minimum wage. It also protected children from excessive exploitation by establishing that they would have to be at least 16 to work in most nonagricultural industries. Younger children could still work certain jobs provided the hours and wages were fair. (It was still possible, in other words, for children to get a newspaper route.) FLSA was challenged in the courts soon after its passage but its constitutionality was upheld by the U.S. Supreme Court in 1941. It remains the operative federal law controlling child labor.
FLSA protects child laborers. Recall that when the law was first passed, agriculture was primarily a family activity, and it was understood that children would help on the family farm. As could be expected, the restrictions on agricultural work are much less stringent. By the end of the twentieth century, the number of family farms had dwindled, and most farming was done on large commercial establishments. But lax restrictions remained, and farm conglomerates took advantage of this.
Under FLSA, no child under the age of 13 can work in a nonagricultural setting, and children of 14 and 15 can work but only for a set number of hours each day. For children working on a farm, the situation is quite different. Children can go to work in the fields as young as nine years old in some states, as long as they have signed parental consent.
The dangers of agricultural work are surprisingly many, and for minors these dangers are even more troubling. Agricultural workers can be exposed to pesticides and other chemicals. They may be sent to work in oppressive heat but without adequate water to keep from becoming dehydrated. Often, they work with heavy or dangerous equipment—equipment that children often have little experience with. Because they work long hours, often having to rise before dawn to begin their work, lack of sleep is a major problem. For children, this is not only more dangerous, it also curtails their ability to succeed in school. Injury is common; children can fall or have accidents with heavy equipment or sharp objects.
Organizations such as Human Rights Watch have urged the federal government to revise FLSA to offer additional protection to minor children working on farms, and to ensure that farms are more careful about whom they hire and also more diligent about improving working conditions and wages.
In an effort to create a universally accepted set of children’s rights, the United Nations General Assembly adopted the Convention on the Rights of the Child in November 1989. This document promises children the basic human rights of life and liberty, as well as access to education and health care. (It also calls for protection against discrimination and abuse, protection from economic exploitation, and protection against torture. Opponents of the law in Congress argue it threatens national sovereignty.)
The United States did sign the Convention in 1995 but it was never submitted to the Senate for ratification. Although the government has stated that it has no intention of ratifying the Convention, it has consistently reaffirmed its commitment to children’s rights.
Among the reason the United States has failed to ratify the Convention is the fact that the Convention clearly states that anyone under the age of 18 is a child. The U.S. government has reservations about how that would affect matters when a 16- or 17-year old commits a crime since within the United States, in certain instances, that child can be tried as an adult. Also, the United States Government says that many of the declarations included in the document are not issues for which the federal government has jurisdiction rather than the state governments. For example, education in the United States is controlled by the states, not the federal government.
Whether the United States eventually ratifies the Convention, it must be agreed that the United States has maintained an excellent record of honoring most children’s rights. Human rights groups are convinced that the United States can and should do more, and they continue to make their points of view known in the United States and abroad.
In reality, it is in the schools that most protection can be found. Since children are required in the United States to attend school, the government’s efforts to avoid truancy and assure children attend up to specified ages make child labor difficult both for employers and families and once a child is in the school system, the state has an economic interest to make sure the child is learning rather than laboring.
Immigrant and illegal workers remain a significant issue since the children often are not enrolled (with their parents fearful of being deported) and without that state involvement, and with agricultural worker’s children being allowed in the field from the age of nine, protection for these children becomes quite difficult.
But outside of those areas, child labor within the United States is seldom encountered and the penalties, both in terms of violation of federal and state statute, and for reputation of the business are severe. Any employer unsure about the age of a potential employee is well advised to confirm the age of the applicant and to immediately terminate (and report to child welfare authorities) any underage applicant seeking to work. While parental consent can allow children above certain ages to work, recall that said consent must be freely given and should be confirmed with the parent directly.
Note also that in some selected fields, such as media, advertising, television and movies, children are freely used but that California law requires unique protections such as assignment of a specially certified instructor to both oversee the use of the children and to provide some education during breaks in the shooting.
It is thus vital to obtain competent legal advice and make advance preparations should there be a need for the use of children in the workplace and if there is doubt that an applicant is of legal age, confirmation of age is an obligation imposed upon the employer.