The Arkansas governor signed a bill to allow children as young as 14 to work without parental consent. The immigration system lost 85,000 teens many of whom are suspected to have been victims of labor trafficking. The Nebraska governor says we need to force women to have more babies, so we have little white workers and not brown immigrants.
The battle over child labor is not new.
During the Progressive Era, Congress tried to regulate child labor twice. The first bill in 1916 prohibited interstate transportation of goods made at a factory in which children under 14 worked or children 14-16 worked excessive hours. The Supreme Court struck that bill down as exceeding the commerce power and invading states’ rights. Hammer v. Dagenhart, 247 U.S. 251 (1918)
The second effort was in 1919 that any mine employing children under 16 or factory that permitted children to work excessive hours had to pay a 10% excise tax on their profits. That was also held unconstitutional as being a penalty regulating conduct reserved to the states. Bailey v. Drexel Furniture Co., 259 U.S. 20 (1922)
Congress then proposed a Child Labor Amendment in 1924 that provided: “Congress shall have power to limit, regulate, and prohibit the labor of persons under eighteen years of age.” It was supported by the National Child Labor Committee, the American Federation of Labor, the General Federation of Women’s Clubs, and numerous civic groups. The vote on the amendment in the House was 297 to 69 and in the Senate 61 to 23. It was sent to the States in 1924. Arkansas was the first to ratify it, then California and then Arizona all in 1925. By 1937, 28 states had ratified it and there it stalled.
Opponents included The American Bar Association, professors at Columbia and Harvard, churches, the Farm Bureau Federation, and the Daughters of the American Revolution (DAR) among other groups. They argued that it was a state question and unwarranted interference with the rights of parents. That underlying idea of children as property of their parents resufaces today.
The National Child Labor Committee sounded the alarm that the Depression era labor laws that protected children were only short-term, and that a permanent solution was needed. The Roosevelt administration took up the matter in 1935 to consolidate the child protection laws achieved under the National Industrial Recovery Act (NIRA). Secretary of Labor Francis Perkins argued that child labor was “unfair competition with adults” rather than any focus on the rights of the child.
The Congress today would be unlikely pass such an amendment. The states, 29 of which are in control of Republicans, are unlikely to ratify it. The amendment has no time limit so states can still ratify; it only needs 10 more. It could follow the ERA into the Constitution as Amendment 29.
Then as now, the issue of child labor was not uniform across the country.
The Southern states were far more likely to use child labor and violate child labor laws. Things are not much different 100 years later. As you can guess, the darker the complexion of the child, the more likely that child was exploited in labor. The rate for Blacks doubled that for whites in the south but not in the rest of the country. Again, things are not much different today.
Where the children work is not much changed either. In the 1930s, agriculture employed about 70% of children under 16. Next in line were manufacturing and mechanical industries, trade, and domestic and personal service. Today it is agriculture, construction, and the garment and service industry. The Economic Policy Institute report (Child Labor Laws are under attack in states across the country, Jennifer Sherer and Nina Mast, March 24, 2023, Economic Policy Institute) found that as violations of child labor protections are rising (37% in the last year alone) states seek to weaken the protections. Ten states have introduced or passed such laws in the last two years. National industry groups are driving these changes such as the National Federation of Independent Business; the Chamber of Commerce; the National Restaurant Association; hotel, lodging, and tourism associations; grocery industry associations; home builders; and the group Americans for Prosperity.
The Iowa Senate just passed one of the most extreme bills. Children as young as 14 can work in meat coolers and industrial laundries, at 15 they can work in assembly lines, and at 16 and 17 they can serve alcohol. The bill would allow children of 14.5 years old to drive themselves to work up to 50 miles from 5 a.m. to 10 p.m. What could go wrong with a bunch of 14-year-olds driving in the dark after a grueling day at work? Parents could lie about their child’s age, states could waive penalties for violators, and employers would be immune from lawsuits arising from the injury, illness, or death of a child. You can sue a person who hits your dog but not one who kills your child.
The Arkansas Governor Sarah Huckabee Sanders bragged about the law she signed repealing restrictions for 14- and 15-year-olds who no longer need a work certificate or even parental consent. Huckabee called parental permission requirements an “arbitrary burden.” Kids can be a burden, but this move is taking away parental rights not supporting them.
The Ohio Restaurant Association, the National Federation of Independent Business, and the Pickerington Area Chamber of Commerce supported a bill to let 14–15-year-olds work until 9 p.m. on school nights. In New Hampshire since 2022 they allow 14-year-olds to bus tables where alcohol is served and repealed a provision that limited the number of night shifts teens could work per week. In New Jersey since 2022 they allow teens to work up to 50 hours a week in the summer and restricted breaks to every six hours rather than five.
Other common bills are to pay teens less than the existing minimum wage, often called “training wages.” Soon we’ll be paying the company to train us like we pay the grocery stores to bag our own groceries. One state senator said we should make it easier not harder to hire young people. But it’s not hard now. The unemployment rate for 16-24-year-olds is 8% that matches the pre-COVID low of 2019, and that was the lowest it had been since the 1950s. Employers just don’t want to pay livable wages. It might eat into their yacht fund.
The harms and violations of child labor.
Decades of scientific research shows the harm to health and development of children by excess working, workplace injuries, and chemical and hazardous materials exposure. If children work and forego further education, they harm their lifelong economic prospects and the stability and growth of the country. How is it that corporations and state legislators do not know this? Or do they just not care?
Much of what the states are doing violates federal law under the Fair Labor Standards Act that sets the floor on wages, hours, and child labor. Some argue that child abuse violates the 13th Amendment. (Child Abuse as Slavery: A Thirteenth Amendment Response to DeShaney, Amar & Widawsky, 105 Harv. L. Rev. 1359, 1999)
What can we do?
Congress needs to step up and enforce the federal law, include agricultural workers in the full scope of federal law, pass the PRO Act, and fix our destroyed immigration system.
States have an even bigger role to raise the minimum wage, eliminate the sub-minimum wage for youth and the disabled, erase agricultural loopholes that harm children, stop wage theft, and repeal “right to work” laws. Those states who have not ratified the Child Labor Amendment should.
The United States and Somalia are the only two countries in the world that have not ratified the Convention on the Rights of the Child. Because the Convention is so widely adopted, it has become customary international law, and the U.S. is held to its standards regardless. We must agitate on local, state, national, and international levels to protect children from harmful labor exploitation.