Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

Worst Forms of Child Labour Convention, 1999 (No. 182) - United States of America (Ratification: 1999)

Articles 3(d) and 4(1) of the Convention. Hazardous work and determination of types of hazardous work. Hazardous work in agriculture from 16 years of age. The Committee previously noted that section 213 of the Fair Labor Standards Act (FLSA) authorizes children aged 16 years and above to undertake, in the agricultural sector, occupations declared to be hazardous or detrimental to their health or well-being by the Secretary of Labor. The Government, referring to Paragraph 4 of the Worst Forms of Child Labour Recommendation, 1999 (No. 190), which allows ratifying countries to permit 16–17 year-olds to engage in types of work referred to by Article 3(d) on the condition that the health, safety and morals of the children are fully protected, stated that Congress considered it as safe and appropriate for children from the age of 16 years to perform work in the agricultural sector.

However, the Committee noted the allegation of the American Federation of Labor and Congress of Industrial Organizations (AFL–CIO) that a significant number of children under 18 years were employed in agriculture under dangerous conditions, including long hours and exposure to pesticides, with risk of serious injury. It also noted the statement in the report of the International Trade Union Confederation (ITUC), for the World Trade Organization General Council on the Trade Policies of the United States of 29 September and 1 October 2010, entitled “Internationally recognized core labour standards in the United States of America” that health and safety standards for child farm workers were severely lacking, and that from 2005 to 2008, at least 43 children died in work-related accidents in farms. The Committee noted the statement in the document available on the website of the Department of Labor (DOL) entitled “Notice of proposed rulemaking to amend the child labor in agricultural regulations – Frequently asked questions” that “[c]hildren employed in agriculture are some of the most vulnerable workers in America. The fatality rate for young agricultural workers is four times greater than that of their peers employed in non-agricultural workplaces. Furthermore, the injuries suffered by young farm workers tend to be more severe than those suffered by non-agricultural workers. The current federal agricultural child labor rules were issued over 40 years ago and have never been updated or even revised.”

Nonetheless, the Committee took due note that, based on the recommendations of the National Institute for Occupational Safety and Health (NIOSH), the Wage and Hour Division (WHD) of the DOL published a Final Rule on child labour provisions on 20 May 2010, which revised existing Hazardous Orders (HOs) to prohibit children under 18 years from performing certain types of work, including: (i) working in poultry slaughtering and processing plants; (ii) forestry services and timber tract management; (iii) operating balers and compacters designed for non-paper products; and (iv) operating wood chippers. The Committee also noted that the DOL issued a Notice of Proposed Rulemaking in September 2011, containing proposals to revise the child labour agricultural HOs, as well as some non-agricultural HOs. The Government indicated that the proposal, if finalized, would adopt the remaining specific NIOSH recommendations on existing agricultural HOs, to increase the parity between agricultural and non-agricultural child labour prohibitions. This proposal created an HO to prohibit the employment of persons under the age of 18 years in occupations in farm product and raw materials, wholesale trade industries such as work in country grain elevators, grain bins, silos, feed lots, feed yards, stockyards, livestock exchanges and livestock auctions. Additionally, this proposal included several revisions to existing agricultural HOs, such as prohibiting hired farm workers under 16 years of age from: the planting, cultivating, topping, harvesting, baling, barning, and curing of tobacco; any work that falls within the Environmental Protection Agency classification of pesticide handler; occupations involving working inside a manure pit; work in the agricultural sector such as construction, wrecking and demolition and excavation; certain tasks involving working with or around animals; and operating all power-driven machines. However, the Committee noted with serious concern that this proposed rule was subsequently withdrawn in April 2012.

In this regard, the Committee notes the Government’s information that, notwithstanding the fact that the proposed rule to revise the child labour agricultural HOs was withdrawn in April 2012, the WHD continues to focus on improving the safety of children working in agriculture and protecting the greatest number of agricultural workers. One of the WHD’s strategies is to use education and outreach to promote understanding of agricultural employers’ and workers’ rights and responsibilities alike, which it does through several initiatives in specific sectors and in various States. In addition, the Occupational Safety and Health Administration (OSHA) has increased its focus on agriculture by creating the Office of Maritime and Agriculture (OMA) in 2012, which is responsible for the planning, development and publication of safety and health regulations covering workers in the agricultural industry, as well as guidance documents on specific topics, such as ladder safety in orchards and tractor safety. In 2013, OSHA reconvened the Agriculture Task Force to further increase its focus on assisting the agricultural industry. The OSHA has also undertaken a number of enforcement initiatives that address working conditions in the agricultural sector, including for agricultural workers under 18 years of age. The Government reiterates its dedication towards seeking improvements in child labour safety and health, in particular in agriculture, and states its willingness to continue the dialogue on this subject with the Committee.

The Committee welcomes the measures taken by the Government to protect agricultural workers, including those under 18 years. However, it reminds the Government that work in agriculture was found to be “particularly hazardous for the employment of children” by the Secretary of Labor. In this regard, according to the OSHA website, agriculture ranks among the most dangerous industries, and between 2003 and 2011, 5,816 agricultural workers died from work-related injuries in the United States. In 2011 alone, 570 agricultural workers died from work-related injuries, including 108 youths. Of the leading causes of fatal injuries to youths on farms in the United States, 23 per cent involved machinery (including tractors), 19 per cent involved motor vehicles (including all-terrain vehicles), and 16 per cent were due to drowning. In addition, the website indicates that an estimated 33,000 children have farm-related injuries each year in the United States, which are the result of being directly involved in farm work.

Therefore, the Committee must observe that, despite the several awareness-raising and educational measures taken by the Government to inform agricultural workers, including children, about their rights and safety at work, the agricultural sector remains an industry that is particularly hazardous and detrimental to young persons. The Committee, therefore, urges the Government to take the necessary measures to ensure that young persons between 16 and 18 years of age working in agriculture are only permitted to perform work in accordance with the strict conditions set out in Paragraph 4 of Recommendation No. 190, namely that their health and safety is protected and that they receive adequate specific instruction or vocational training. It requests the Government to provide information on the concrete measures taken in this regard and on the results achieved in its next report.

The Committee also strongly encourages the Government to reconsider the withdrawal of the proposals contained in the Notice of Proposed Rulemaking of 2 September 2011, which would have increased the parity between agricultural and non-agricultural child labour prohibitions by prohibiting some tasks associated with agricultural work to children under 18 years and strengthening the protection provided to children under 16 years working in agriculture.

Articles 5 and 7. Monitoring mechanisms and penalties. Hazardous work in agriculture. The Committee previously noted that the WHD hired more than 300 new investigators since the summer of 2009. The Government indicated that with these added resources, WHD investigators were able to conduct agricultural investigations on evenings and weekends, when children were most likely to be working in the fields. The Committee also noted with interest that the Final Rule on child labour provisions of 2010 amended the child labour civil money penalty to provide for up to US$50,000 for each violation that causes the death or serious injury of an employee under 18 years of age (which can be doubled if the violation is repeated or wilful).

The Committee notes the Government’s information that, since 2011, the WHD has hired more new investigators, bringing the total of investigators to more than 1,000. The WHD has also opened 14 new offices and upgraded 18 across the country, making its services more readily accessible to the nation’s workforce and regulated sectors. The Government also indicates that the WHD continues to use the full range of penalties and sanctions at its disposal, including the “hot goods” provision of the FLSA, which prohibits employers from shipping in interstate commerce any goods produced in violation of the Act’s minimum wage, overtime or child labour requirements. For example, this provision was used in 2011, when the WHD fined three berry farms in Southwest Washington a total of US$73,050 in penalties for violating the FLSA, including employing children as young as 6 years old as farm labourers. Moreover, the Government indicates that, in 2012, there were 749 concluded cases in which child labour violations were detected, involving 1,614 minors found working in violation of the FLSA, and child labour civil monetary penalties of more than US$2 million were assessed. The Government indicates that the two most common violations were failures to comply with the hours standards for 14–15 year-olds in non-agricultural industries, constituting approximately 42 per cent of the child labour violation cases, and failure to comply with Hazardous Orders in non-agricultural industries for 16–17 year-olds, constituting approximately 40 per cent of the child labour violation cases. Taking due note of the measures taken, the Committee once again urges the Government to pursue its efforts to strengthen the capacity of the institutions responsible for the monitoring of child labour in agriculture, to protect child agricultural workers from hazardous work. It requests the Government to continue to provide information on measures taken in this regard, and on the results achieved, including data disaggregated by age and gender.