A loosening of laws

Editor’s note: This article is for general educational purposes only and does not constitute legal advice.

In 1938, the Fair Labor Standards Act was signed into law. In addition to addressing minimum wage, workday limits and overtime pay, the legislation puts limitations on child labor. It restricts the number of hours children under the age of 18 can work, and it regulates the kinds of employment allowed for children under the age of 14. The intent is to prevent young people from being subjected to potentially dangerous conditions in factories, mines and other environments while ensuring they stay in school.

Recently, some states have begun revising their laws to allow more leeway in child labor. It will be interesting to see how these laws will affect young people and the businesses that employ them.

The details

In June 2023, Iowa was among the first states to adopt new legislation. Its law, which went into effect July 1, 2023, increases the hours children younger than 18 can work and allows them to work in roles that previously had been considered too dangerous, such as in warehouses, on roofing projects and in factories. The law also limits business liability if minors are injured in the workplace. Additionally, 16-year-olds now are allowed to serve alcohol provided two adults are on-site.

In Arkansas, businesses had been required to obtain work permits for children under the age of 16, but the state’s Youth Hiring Act of 2023, which was passed in March 2023, repealed that requirement. However, the state also adopted a law that increases child labor law penalties.

Meanwhile, Ohio lawmakers are debating legislation that would allow teens aged 14 and 15 to work as late as 9 p.m. on school nights with their parents’ permission. According to federal law, teens should not work past 7 p.m. on weekdays except during summer. In addition, Minnesota is reviewing legislation that would permit teens aged 16 and 17 to work on construction sites.

In contrast, some states are trying to enact stronger laws. For example, in Colorado, lawmakers passed legislation that would enable minors to sue their employers for violating child labor laws.

Federal law

According to the Department of Labor Fact Sheet No. 43, which addresses child labor provisions of the FLSA: “The Department of Labor is committed to helping young workers find those positive and early employment experiences that can be so important to their development, but the work must be safe.” This document outlines the minimum age for employment, acceptable hours and industries deemed too hazardous for minors.

FLSA Section 203 states:

“(l) ‘Oppressive child labor’ means a condition of employment under which

“(1) any employee under the age of sixteen years is employed by an employer (other than a parent or a person standing in place of a parent employing his own child or a child in his custody under the age of sixteen years in an occupation other than manufacturing or mining or an occupation found by the Secretary of Labor to be particularly hazardous for the employment of children between the ages of sixteen and eighteen years or detrimental to their health or well-being) in any occupation, or

“(2) any employee between the ages of sixteen and eighteen years is employed by an employer in any occupation which the Secretary of Labor shall find and by order declare to be particularly hazardous for the employment of children between such ages or detrimental to their health or well-being; but oppressive child labor shall not be deemed to exist by virtue of the employment in any occupation of any person with respect to whom the employer shall have on file an unexpired certificate issued and held pursuant to regulations of the Secretary of Labor certifying that such person is above the oppressive child-labor age. The Secretary of Labor shall provide by regulation or by order that the employment of employees between the ages of fourteen and sixteen years in occupations other than manufacturing and mining shall not be deemed to constitute oppressive child labor if and to the extent that the Secretary of Labor determines that such employment is confined to periods which will not interfere with their schooling and to conditions which will not interfere with their health and well-being.”

The FLSA has been in place for more than 80 years, and just three years after it became law, the U.S. Supreme Court upheld its tenets in the 1941 case U.S. v. Darby Lumber. However, DOL has no practical ability to control state laws. The FLSA does not give the agency authority to prohibit state laws or enforce federal laws within the states. Therefore, the federal government has little recourse to prevent more lenient state laws from taking effect.

In February 2023, the White House announced an interagency task force to address child labor violations, which have been on the rise. However, the task force has not provided significant updates about its efforts.

Nevertheless, the Occupational Safety and Health Administration has standards for all workers’ safety, which, of course, apply to young people. Employers still need to ensure safe workplaces no matter how child labor laws are revised.

Why the new laws?

Lawmakers have provided several reasons for the relaxed child labor laws. Some see the laws as a strategy for combatting the nation’s staffing shortages. Unemployment is at a record low, so loosening restrictions for teens to work could help alleviate those shortages. Others, such as Iowa Gov. Kim Reynolds (R), believe the laws will allow young people to get more professional work experience. She praised the law, saying it would “allow young adults to develop their skills in the workforce.”

But not all lawmakers approve of the new laws, and these lawmakers have joined with unions to educate the public about the dangers the legislation could bring. They are concerned teens working at younger ages and for longer hours could hinder their educational pursuits while working in specific industries could be hazardous. They are urging DOL to review the legality of the new standards and working to guide parents to make informed decisions regarding their children’s work options.

Sen. Nate Boulton (D-Iowa) opposed the changes to his state’s child labor laws. He plans to request an updated response from DOL regarding the statute’s legality. He also wants to create a fact sheet for Iowa employers and parents so they can understand the ramifications of teenage work.

“In an ideal world, the first step would be the educational piece, and then come back in the next session and ensure there is consistency between federal and state law,” Boulton explained.

Implications for roofing

The roofing industry has struggled with labor shortages for years, and limits on immigration make that situation worse. These revised laws could enable more teens to work in the industry, which might address the staffing problem to some degree. Some contractors see these new laws as a victory.

However, all employers must use caution when employing young people. It will be essential for employers to know the child labor laws in their states and ensure they are following the age and hour restrictions. OSHA will continue to enforce safety regulations for all workers, so training minors for the tasks they will be performing is critical.

What’s ahead

As certain states push to relax child labor laws and others consider more protective measures, some lawmakers are taking steps to revise federal regulations. For example, Rep. Dusty Johnson (R-S.D.) wants to change the federal law to allow teens who are 14 or 15 years old to work 24 hours per week during the school year and as late as 9 p.m. on school nights. In addition, some lawmakers in Congress are reviewing the possibility of allowing 16 and 17 year olds to work in the logging industry with parental approval.

However, Congress also is considering increasing the fines for child labor violations. The current maximum penalty is $15,138 per child. If the legislation is approved, it could increase that dollar amount nearly 10 times.

Throughout the U.S., companies, unions, agencies and lawmakers have varying opinions about how child labor should be regulated. It seems likely this debate will continue at both the state and federal levels.

TRENT COTNEY is a partner and practice group leader at the law firm Adams and Reese LLP, Tampa, Fla., and NRCA’s general counsel.