Since the news on Feb. 7 that Labor Secretary Marty Walsh will leave his Cabinet position, there has been significant buzz about who President Biden will name to succeed him. In the pile of unfinished business that Walsh leaves for his successor is a long overdue regulatory change to protect children hired to work in U.S. agriculture.
Agriculture is the most dangerous industry open to child workers in the United States. My colleagues and I have interviewed hundreds of child farmworkers through our work at Human Rights Watch, and they described working in harsh and terrifying conditions. Many work 12 or more hours a day in extreme heat, use sharp tools or dangerous machinery, lug heavy buckets, or climb tall ladders with nothing to protect them from falling.
Thousands of children are injured while working on farms each year. A 2018 Government Accountability Office study found that while only three percent of working U.S. children are farmworkers, they account for more than half of work-related child deaths.
The child farmworkers we interviewed were not working on their own families’ farms. They were hired laborers, risking their health and lives to tend the fruits and vegetables that make their way to our dinner tables.
Part of the reason these children are at such high risk are the longstanding exemptions in U.S. labor law. Under U.S. law, children as young as 12 can work unlimited hours on farms of any size with a parent’s permission, as long as they do not miss school. Children that young cannot legally work in any other sector in the U.S. today. At age 16, children working on farms can do jobs that are considered particularly hazardous, while in any other sector you have to be 18 to do hazardous work.
The reason that the rules are different in the first place can be traced to racist exclusion of farmworkers, many of whom were Black, from the 1938 Fair Labor Standards Act. Amendments to the law in 1966 extended some protections to farmworkers, but exemptions remain — including related to child labor. Now the vast majority of hired child farmworkers are Latinx, so the gaps continue to cause racially disproportionate harm.
Congress should pass legislation to amend U.S. labor law to close these gaps, but the Labor Department can take regulatory action independent of Congress to protect the health and lives of child farmworkers.
The Labor Department determines which jobs are considered hazardous and off-limits to children under 16 in agriculture, and under 18 in all other sectors. The list of hazardous non-agricultural work was updated in 2010, but the list for agriculture has not been updated since 1970 and is too narrow.
For example, it does not restrict children from working with tobacco, despite the well-documented danger of nicotine exposure from handling the crop. The current list allows children under 16 to work at heights of up to 20 feet without protection from falling. In construction, on the other hand, employers must provide this protection for any work over 6 feet.
Together with our partners from the Child Labor Coalition, Justice for Migrant Women and others, Human Rights Watch has had several constructive meetings with Walsh’s staff about these issues. Last July, 46 members of the House of Representatives urged Walsh to initiate new regulations for child farmworkers.
In early February, five U.S. senators wrote to Walsh urging action to protect children working on tobacco farms from injury and illness. But the Labor Department has not yet committed to new rulemaking to update the 50-year-old hazardous work list.
We fear that the lack of action may be — in part — due to fear of backlash from agricultural lobbying groups after a failed rulemaking effort in 2011 during the Obama administration. The lobbying groups contended that the regulations would hurt family farms and student learner programs.
But preserving the important traditions of family farming and training the next generation of farmers are not incompatible with protecting young, hired workers from jobs that endanger their health and safety. We believe these issues can be addressed if the Labor Department consults broadly with members of farming communities now about how to protect hired child farmworkers without causing harm to agricultural communities.
Congress should pass legislation to provide child farmworkers with the same basic workplace protections as other child workers. But the Labor Department does not need to wait for Congress to do something on this issue.
The next labor secretary should act quickly to initiate new regulations to update the hazardous work list. The health and safety of child farmworkers have been overlooked for far too long.
Margaret Wurth (@MargaretWurth) is a senior children’s rights researcher at Human Rights Watch.