Q&A: America’s “Invisible” Child Labor Problem

April 24, 2018
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by Priyanka Boghani Digital Reporter

Over the last four years, more than 200,000 unaccompanied minors have come to the United States. Most of them came from Central America, fleeing poverty and violence.

Some of these unaccompanied teens have ended up in small towns across the Midwest. A Senate investigation in 2016 found that many of these minors were vulnerable to labor trafficking, sometimes forced into unsafe working conditions in order to pay off debts from their smugglers.

In an interview for the FRONTLINE documentary Trafficked in America, one immigrant teen described his work at an Iowa plant. “The first day that I arrived, I didn’t want to return because it was so horrible,” he said. “It was very cold. And the carts that we would take out of the cooler were heavy. The machines are very sharp and if you’re not paying attention, you put your hand in and it will cut everything.”

The Fair Labor Standards Act, a federal law passed in 1938, is meant to prevent children from working in hazardous conditions or for too many hours — regardless of their citizenship status. But labor experts say it’s difficult to know the scope of unlawful child labor in America, and even more difficult to enforce the law, because federal regulators don’t have enough resources.

To better understand the issue, we spoke with Michael Hancock, an attorney with the firm Cohen Milstein who spent 20 years at the Department of Labor. During the Obama administration, he was assistant administrator for policy at the Wage and Hour Division — the main federal office responsible for enforcing child labor laws.

“Child labor is one of those invisible problems,” Hancock said. “It’s not something that’s really obvious to the public at large. But it’s a real issue for the victims of child labor. It deprives them of an education. It puts them in harm’s way.”

This interview has been edited for length and clarity.

For people who don’t know much about child labor in the United States, what does the landscape look like? What kinds of jobs are children allowed to do, and how old do they have to be?

This is one of those areas where there’s a dramatic difference whether or not we’re talking about general child labor or agriculture … with agriculture having much more permissive standards for the employment of children.

Kids who are 16 or older in agriculture can do any work, including those that have been declared to be hazardous by the secretary of labor. And they can do it at any time, including during school hours. So, it’s not unusual to find kids in agriculture working at a time when you’d expect them to be in school and working in occupations that are pretty dangerous. But it also goes down to 14-year-olds, [who] outside of school hours can generally work without limitation — except for those occupations that have been declared as hazardous. You find fairly young kids working in agriculture where you wouldn’t expect to find kids that young. It even goes down lower under certain circumstances, when parents are consenting. Kids under 12 can be working there. That’s sort of the agricultural landscape.

In non-ag, there are restrictions. There are occupations that the secretary has found to be hazardous, which means that kids under 18 can’t work in those occupations. Things like mining, manufacturing, those sorts of things have been deemed to be generally hazardous for kids up to the age of 18. But kids, 16 to 17, can generally work without restriction except during school hours. There are limitations to work during school hours in non-ag employment. It can go down as low as 14 years old in certain specified occupations outside of school hours, but there are limits on how many hours they can work in a day or in a week … Kids 16 and up can generally work unlimited hours in occupations that aren’t hazardous, so you can be 16-years-old and work in a grocery store, or a fast food place.

Do we know how prevalent illegal child labor is?

We don’t. It’s not something that can easily or even possibly be quantified. We don’t have a good sense of that. We do have a sense of which industries historically have been most likely to employ kids unlawfully. To quantify it is almost impossible.

There are sectors in industries where we think the presence of child labor is particularly dangerous. We have special rules, for instance, that apply to grocery stores, delicatessens. The use of the meat slicer, the use of the meat grinder, the operation of a garbage compactor — those things we’ve determined are particularly hazardous for kids. But they’re also work places where you might find some kid employed there, historically. Construction is another one. There are a lot of hazards on a construction work site that have been deemed too hazardous for a kid to be around, and yet you’ll find 16- and 17-year-olds employed on construction sites where those hazards are present. Historically, agriculture has been one of the top places where we find unlawful child labor. The places where you encounter very young workers, those are the places where you’re likely to find unlawful child labor.

What’s the impact on the children themselves?

Child labor is one of those invisible problems. It’s not something that’s really obvious to the public at large. But it’s a real issue for the victims of child labor. It deprives them of an education. It puts them in harm’s way. They’re young, they’re still developing, they’re not fully mature, so there are a lot of things about child labor that will set these kids back in their development, both physical, intellectual and otherwise, for years and years. It’s something we can’t lose sight of and it’s a priority we have to maintain.

Do we know how many child workers are undocumented?

No, we don’t keep numbers on that. We’ve always been very careful at Wage and Hour not to differentiate between immigrants, non-immigrants, documented workers and undocumented workers, because we think we can’t do our job if undocumented workers think that we have some interest in their status. I can tell you the same industries where there are likely to be hazards for kids are the same industries that have a fairly substantial concentration of immigrant workers — construction work, amusement parks, recreational stuff, agriculture. Those are all industries that have a high concentration of immigrant workers, so there is some correlation between those two.

Do we know if illegal child labor in the United States is decreasing or increasing?

If you take the long view — when the FLSA [Fair Labor Standards Act] was enacted in the 1930s, you still had kids working in coal mines. On that level, it’s probably gotten better. But at the same time, I think that it’s still a significant problem and there’s some chance that it’s going to get worse as the labor market tightens and fewer and fewer adults are available to work, or available to work at the price the employer is willing to pay. That’s when you find employers turning to sources, like, not only children but undocumented workers.

How easy or difficult is it to enforce child labor laws? 

It’s challenging. It’s unlike somebody that’s been cheated out of their wages and is likely to be willing to cooperate with an investigator because they feel that they haven’t done wrong. In child labor, the violation includes somebody who’s there of their own accord and is unlikely to want to be cooperative or unlikely to make a complaint. I know of instances in which we’ve gone into a workplace, we have every reason to think that unlawful child labor is going on, but the kids scurry out the back door. There are challenges to [enforcing] child labor, but I think it’s also true that if you continue to prioritize child labor, if you continue to tell employers when you’re doing any investigation that, “We’re looking for child labor and if we find it we’re going to bring the full weight of the law against you,” that does have a deterrent effect. But yes, it’s challenging.

The Wage and Hour Division is the main federal department in charge of enforcing child labor laws. What are the types of challenges the division faces in keeping children safe?

Part of it is just a resource question. There’s a thousand investigators in a country this large, with this many employers. It’s a daunting task to enforce any of the standards under the Fair Labor Standards Act, but bear in mind that Wage and Hour has responsibility beyond that to the Family Medical Leave Act, and a whole host of other things it enforces with its thousand-some-odd investigators.

But I wouldn’t say that’s the primary obstacle to effective enforcement. Part of what’s at play here is — and this is not meant to be critical — but the victims are complicit. They’re working because they want to work, because they need the money, or because of whatever’s driving them to go to work at an age when they shouldn’t be. They’re not likely to come forward and say, “Come investigate my employer, he’s employing me unlawfully.” That’s one of the barriers. And then, there’s the issue — and you see this in agriculture all the time — when you see the presence of kids in the fields, there’s a question of whether or not they’re working, or the parents had no choice but to bring their kids to work because they don’t have child care or whatever. So, you have those technical proof problems that can often be difficult. It’s very challenging to enforce child labor for those reasons.

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