Child Labor

Mae Kuykendall mae.kuykendall at law.msu.edu
Sat Apr 7 13:00:11 PDT 2012


I replied earlier to the email below but would like to add detail about
the regulation of child labor. It is true that under the Fair Labor
Standards Act (FLSA), children as young as 12 can work unlimited hours
in farming as long as they have parental consent. The original time of
enactment in the twentieth century would have leant itself to the
understanding that children should be able to help out in their parents'
farming enterprise. As time passed, the exemption has become less
defensible. The attempt to update the law by rule making has attracted
opposition because the exemption for children working on their parents'
farms is not adequate, given the complicated business forms that farm
ownership may take. There is also concern about how training programs
and the like might be affected. Here is a story:
http://www.agri-pulse.com/Proposed_child_agricultural_labor_rules_02022012.asp
The Labor Department will revise the proposed rule based on feedback. It
sounds as though the rule-making is a good example of an effort by a
federal department to devise rules suited to contemporary conditions and
to take into account feedback about how a rule might be shaped more
effectively to allow for appropriate modifications. There is an argument
that farm work is more hazardous than many other types of work, so
children need to have more protection from working, even with parental
consent. Some states provide greater protection, but the current
rule-making arises from a sense there is a gap in protection for
children in farm work. Hence, federal law allows for a policy process
that is deployed to develop more consistent protection for children in
farm work.
 
So, many people at any given point may fail to exercise the best
judgment in making policy about health care or child labor. But the
national labor laws have shown some capacity for increasing the
protection for children through the policy processes they energize.
Presumably national law on health care will create a process for gradual
improvement of the delivery of health services to the whole nation.
Undoubtedly, the health law is imperfect and will develop over time if
Congress is able to act as a law-making body for a national concern. ACA
will remain a typically mixed legislative product, with useful features
and with problems.
mk

>>> <davidebernstein at aol.com> 4/5/2012 6:16 PM >>>

I'm not sure I understand the point. We can't trust state legislatures,
but we also can't trust a presidential candidate who is the former
speaker of the U.S. House, and both state and federal child labor laws
largely exempt farm labor, which is why kids can help pick fruit
legally, at least when school is out of session.  (Industrial labor
unions were among the strongest backers of federal child labor laws, and
they didn't care about farm workers.)  Finally, in 2012, over sixty
years after it had the authority to do so, the federal government is
revisiting the farm child labor rules, but proposed stricter rules are
being watered down after parental opposition. 
http://www.knoxnews.com/news/2012/feb/01/proposed-farm-exemption-to-child-labor-law/

So how does this go to issues of federal power under the Constitution?


-----Original Message-----
From: Mae Kuykendall <mae.kuykendall at law.msu.edu>
To: davidebernstein <davidebernstein at aol.com>; Michael Curtis
<curtismk at wfu.edu>
Cc: conlawprof <conlawprof at lists.ucla.edu>
Sent: Thu, Apr 5, 2012 5:16 pm
Subject: Re: Child Labor

I feel I'm in good hands with Professors Bickers and Curtis, at least
re history, but I would also mention that some among us may lack
confidence in the sensitivity to children (I prefer not to pair "women
and children," though many might rightly yield to that impulse) of state
legislatures, given recent trends in legislation, as well as the
long-standing unsolved problem of designing a more protective welfare
system for abused children.  Candidate Gingrich has already suggested a
form of child labor as an efficient solution to both union problems with
janitors and discipline for the underclass adolescent.  I don't know how
it happens, but I also understand that a whole class of children winds
up in the fields today in camps to help their parents pick fruit.  
 


>>> "Curtis, Michael" <curtismk at wfu.edu> 4/5/2012 5:04 PM >>>
America in 1900, the PBS video, has pictures of little boys as young
as 8 or 9 picking coal out of the slate in the coal fields.   They
worked 10 hours a day or more as I recall. By adding to the supply of
labor, I would assume it depressed wages of adults, adding to pressure
to send the kids off to the coal mines etc. instead of to school.

In recent years there seems to be no shortage of child labor in lots
of retail establishments--teenagers working I guess limited hours.
Now thanks to the Great Recession, I think more of these jobs have
been filled by adults, but I am not sure.

Michael Curtis

On Thu, Apr 5, 2012 at 4:26 PM,  <davidebernstein at aol.com> wrote:
> No federal or state court ever recognized a liberty interest in
employing
> child workers. The Supreme Court upheld child state labor laws
unanimously.
> To my knowledge, no state or local child labor law was ever
invalidated by a
> court.  Every state in the United States had child labor laws before
the
> Supreme Court eviscerated the Commerce Clause in the 1930s.
>
>
> -----Original Message-----
> From: Mae Kuykendall <mae.kuykendall at law.msu.edu>
> To: conlawprof <conlawprof at lists.ucla.edu>
> Sent: Thu, Apr 5, 2012 2:43 pm
> Subject: Child Labor
>
>
>
>
http://www.nytimes.com/2012/04/05/world/asia/india-shaken-by-plight-of-13-year-old-maid.html?hp
>
> Let's hope the Supreme Court restores the doctrine that enables the
U.S. to
> enjoy the liberty to deploy the untapped labor available from
younger
> workers. While admittedly the Thirteenth Amendment prevents us from
> attaining the efficiencies available to households in India, we
certainly
> can restore the limitations on the commerce power, limitations which
once
> allowed for the efficient local use of younger workers, while
preserving
> liberty. Moreover, we may well be overdue to revisit the expansive
> interpretation of the Thirteenth Amendment, the jurisprudence of
which
> avoids the state action doctrine and may, in application, be broader
than
> was intended when the amendment was drafted and approved.
>
> I acknowledge this is not standard con law commentary, but it seems
to fit
> the times.
>
> Best,
> Mae Kuykendall
>
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