Feds Crack Down on Illegal Child Labor: What You Need to Know – JD Supra

The Biden Administration recently announced a new initiative to investigate and enforce violations of child labor laws. Significantly, the crackdown will include more aggressive investigations of and accountability for companies benefiting from illegal child labor, even if those companies do not employ the children directly.

The federal child labor laws, which were authorized by the Fair Labor Standards Act of 1938 (FLSA), were enacted to ensure that children and young people work in safe occupations that do not jeopardize their well-being or educational opportunities. The restrictions on child labor, including the jobs and number of hours that a minor may work, vary by age. Over the years, the United States Department of Labor (DOL) has refined the list of job duties that would be considered hazardous and therefore not available to minor workers. In addition, every state has a child labor law regulating the conditions under which employers may hire children and young people, as well as a compulsory school attendance law.

In their joint announcement on February 27, 2023, the DOL and Department of Health and Human Services (HHS) cited the increase in children being employed illegally. Since 2018, the DOL has seen a 69 percent increase in unlawful child labor. They also concluded that the current maximum penalty – $15,138 per child – is not a sufficient deterrent for large corporations. In their announcement, the DOL and HHS specifically referenced the influx of migrant children from Latin America, the majority of whom are unaccompanied and do not have a parent in the United States.

In the weeks leading up to the announcement, a number of news outlets reported on the surge in migrant children working in violation of existing labor laws, including in hazardous occupations.

The DOL/HHS announcement also comes on the heels of certain states seeking to expand the ability of children to work outside of school. At least three states – Iowa, Minnesota, and Ohio – have announced efforts to alter restrictions on child labor to address labor shortages in those states.

To address the sweeping issues around child labor violations and concerns with the sponsorship process for unaccompanied minors, the DOL and HHS announced the following key actions that will impact employers:

• The DOL will lead an interagency taskforce to combat child labor exploitation. Notably, the taskforce will enable HHS to apply more scrutiny in the sponsor vetting process.
• The DOL's Wage and Hour Division will use data-driven strategies to conduct investigations where child labor violations are most likely to occur. It is unclear from the announcement whether the data will be used to predict the frequency of potential violations on a geographic or industry basis. The Division, in conjunction with the Office of the Solicitor, will have available all enforcement tools, including penalties, injunctions, stopping the movement of goods made with child labor and criminal referrals as necessary.
• Perhaps most significantly, the DOL will hold all employers accountable to remove unlawful child labor from supply chains, including those companies that work with staffing agencies or subcontractors to supply their workers. The DOL promises to apply further scrutiny to those employers and increase corporate accountability for abuses of child labor laws.
• Finally, the DOL is calling upon Congress to increase funding for its Wage and Hour Division and the Office of the Solicitor to investigate child labor cases, and to increase civil monetary penalties, strengthen anti-retaliation protections for those who report child labor law violations and investigate corporations violating those laws. In response, at least one U.S. senator has proposed legislation that would increase the maximum fines for violations and establish new criminal penalties to deter child labor.

In addition to these employment-related actions, HHS will mandate follow up calls for unaccompanied migrant children who report safety concerns, expand its post release services and conduct an audit over the next four weeks of the vetting process for potential sponsors who have previously sponsored an unaccompanied child.

In response to the announcement, at least one state – New York – has encouraged employers in hospitality, restaurants, fast food, and physically-taxing industries like manufacturing, food processing, construction, farming and landscaping to educate their employees on labor rights and the signs of labor trafficking.

Employers that work with staffing agencies and subcontractors to supply their workers must remain vigilant to ensure that appropriate screening is used to eliminate illegal child labor. The DOL has vowed that a lack of direct knowledge of the use of illegal child labor will not be sufficient to shield employers benefitting from the practice from enforcement action. Accordingly, employers are strongly encouraged to immediately ensure that the ages of their workers and the employees' ability to work lawfully in the United States are properly documented, and that the hours and work assignments of minor employees comply with state and federal law.

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