Roughly every three days a child dies in a farming-related incident.[i] From California’s Central Valley to Florida’s orange groves, child labor is integral to U.S. agribusiness. And while the notion of children working on farms conjures up images of a simple life in which kids lend a hand milking a cow and gathering eggs around the yard, the reality is much different. A more typical situation is the 12 year-old daughter of Central American immigrants, who spends 12 to 14 hours each day harvesting fruits and vegetables in the hot North Carolina sun, missing the end of one school year and the beginning of the next so that she can help her parents make enough money in a piece-rate payment scheme to make ends meet when the harvest season is over. When children work in the fields with their parents, they fall behind academically, limiting their opportunities. The Bureau of Labor Statistics (BLS) found that:
22 percent of children who work the fields with their parents were behind in grade, and
16 percent dropped out before graduating high school.[ii]
BLS data suggest that these stresses have a significant impact on the children of migrant workers:
44 percent of child farmworkers have a migrant parent, and
99 percent of those child farmworkers with a migrant parent migrate with them, making it difficult to keep up with school.[iii]
A poignant example of the problems with modern child labor in agriculture comes courtesy of Human Rights Watch, whose researchers interviewed 141 child tobacco workers in North Carolina, Kentucky, Tennessee, and Virginia. These children reported “vomiting, nausea, headaches, and dizziness while working on tobacco farms, all symptoms consistent with acute nicotine poisoning.” They “worked long hours without overtime pay, often in extreme heat without shade or sufficient breaks, and wore no, or inadequate, protective gear.”[iv]
Children need special protection in the agricultural field. For one thing, they are not just small adults—children are physiologically different, so they need special protections against risk factors that could affect their development either physically (e.g., from stressful work practices) or hormonally (e.g., from endocrine disrupting pesticide residues). For another, they are not socioeconomically independent and rarely understand their rights as workers, so they are highly vulnerable to abuse, especially by members of their community who defend bad farming practices as acceptable simply because they are “traditional.”
What’s the Holdup?
The Department of Labor (DOL) and the Environmental Protection Agency (EPA) have the authority to crack down on Big Ag’s most exploitative child labor practices. But any time a federal agency attempts to regulate farming practices, Big Ag pushes back with a coordinated campaign that attempts to frame the issue as powerful deskbound bureaucrats tyrannizing salt-of-the-earth family farmers who seek only to carry on our nation’s pastoral heritage. The ruse has worked for many years. The EPA’s pesticide worker protection standards have remained unchanged since they were first adopted in 1992. Likewise, the DOL’s child labor rules for agricultural work were adopted in 1970 and have not changed since.
Earlier this year, the EPA proposed new rules for pesticide use that could limit kids’ exposures to dangerous levels of potent toxins. Pesticide manufacturers and Big Ag are fighting to loosen the proposed restrictions.
The DOL has a bigger problem—removing a barrier to action that President Obama himself put in the agency’s way. In 2011, the DOL proposed rules that would have restricted children’s participation in some of the most dangerous farm activities (such as harvesting and curing tobacco or working in oxygen-deficient storage bins). Big Ag went on a public relations blitz, using misinterpretations of the DOL proposal to argue that the new rules would fundamentally alter farming life. The main sticking points were accusations that children would be prohibited from engaging in time-honored traditions, such as caring for livestock, and that parental-consent exemptions were being eliminated (in fact, the DOL simply proposed revisions that would ensure a parent or close family member actually have some connection to the farm where kids are working). President Obama evidently determined that the rules were too heavy a political lift for him and for the more vulnerable members of his party. Just prior to the 2012 primaries, former Labor Secretary Hilda Solis pulled the proposed rules off the table and issued an extraordinary statement saying “[t]o be clear, this regulation will not be pursued for the duration of the Obama administration.”[v] Instead, the DOL would work with the Department of Agriculture to improve training programs. But two-and-a-half years later, a time span in which hundreds of children have died from farming-related injuries, national training standards are still not in place.[vi]
What Should the Rules Do?
The first step in better protecting child farmworkers is for the DOL to walk back its assurance that the Obama Administration has abandoned its rulemaking efforts under the Fair Labor Standards Act (FLSA). One approach would be to identify the aspects of the proposal that address the most pressing hazards. As originally proposed, the new rules made changes to 9 of 11 existing agricultural hazardous occupation orders (“Ag H.O.s”), the technical name for prohibitions on dangerous farm work for children under the age of 16. The proposed rules also instituted two new Ag H.O.s and two new non-agricultural H.O.s.[vii] The DOL should identify a subset of these proposed H.O. revisions and re-propose them. In September, 35 Members of Congress wrote a letter to Secretary of Labor Tom Perez urging him to propose a rule that would prohibit children from cultivating or curing tobacco.[viii] That would be a good start, given the seriousness of the hazards and the fact that the risks often fall on the most socioeconomically vulnerable workers. Other hazards that the DOL should address include:
Vehicles and machinery, which are linked to more than 70 percent of child farmworker fatalities;[ix]
Falls, which are a leading cause of non-fatal injuries; and
Pesticides, which can be addressed through a rule that simply ensures compliance with the EPA’s Pesticide Worker Protection Standard (WPS).
The common thread running through these issues is that research shows children, no matter how seemingly mature or familiar with a farm environment they might be, lack the fully developed cognitive capacities of their adult co-workers. That research shows that children struggle to balance risk-reward decisionmaking and goal-oriented decisionmaking.[x] Chemical hazards posed by pesticides and nicotine are also especially pertinent because children’s physiology is in a developmental stage. As a result, their bodies process chemical threats differently, which can cause significantly greater harms than would be the case for adults who experience similar exposures to these chemicals.
The EPA has proposed smart changes to the WPS, but could go further. The protections for kids in high-risk situations are a good example. Pesticide handling activities present the greatest risks. They include mixing, loading, or applying pesticides; cleaning pesticide containers or equipment; and disposing of pesticides. The proposed rules would prohibit any children under the age of 16 from performing pesticide handling operations—an improvement over the status quo, which allows farmworker kids under 16 to handle some pesticide that are considered lower toxicity.
Another high-risk situation is entering recently treated fields. As part of their EPA-regulated registration process, pesticide manufacturers must develop “restricted entry intervals,” which are intended to keep people safe from acute toxic effects right after pesticides are applied to a field. They range from a matter of hours to several days. The WPS includes exemptions that allow farmers to send workers into fields during a restricted entry interval if certain conditions are met. Generally, even when workers are allowed into a field during a restricted entry interval, their employers may not force them to do work that involves touching the treated plants. But in cases where a farmer determines that a substantial economic loss will result if workers aren’t sent into a field to perform tasks necessary to mitigate the emergency, higher-risk activities are allowed. The proposed rules would, for the first time, set a minimum age of 16 for kids allowed into fields during restricted entry intervals, even during emergency situations.
The new protections for kids doing pesticide handling activities or entering fields during restricted entry intervals are a step in the right direction, but they ought to be strengthened. In particular, the EPA should set the minimum age for pesticide handling and early entry during restricted entry intervals at 18 years instead of 16 years. Failing that, the EPA ought to use a common sense approach to limiting risks, requiring farmers and commercial pesticide employers to determine that using child labor is absolutely necessary before putting kids in harm’s way. For example, the exemption to restricted entry intervals is based on a determination that forgoing a particular activity will result in potential economic loss to the farmer, without regard to who is performing the activity. Instead, the exemption should only allow workers under the age of 18 to enter recently treated fields if the farmer has determined that the significant economic losses will be incurred if the expected individual child workers do not perform the necessary activity.
The EPA can also better protect child farmworkers by increasing the size of entry restricted areas (“buffer zones”) during and after pesticide application. While pesticides are being applied, and then while they are volatilizing off the field, the drifting toxins can create significant risks for workers if the buffer zone between the treated area and workers is not spatially or temporally adequate. The EPA has proposed limited rules, which protect workers from drift only during pesticide application and only up to a farm’s border or some set distance (as much as 100 feet, depending on the pesticide and how it is applied). Pesticide drift does not stop at property boundaries or the minute application ends, so the EPA needs to clarify that buffer zones can extend to neighboring property and that the waiting period for reentry into the buffer zone lasts long enough for toxins to dissipate.
“Take-home” pesticides are also a major concern for children, even when those children aren’t farmworkers. At the end of a day handling pesticides, workers have toxic residue all over their clothes and skin. If not managed properly, those residues can end up in the workers’ homes, accumulating over time and reaching dangerous concentrations. At an early stage in the rule’s development, the EPA was preparing to require farm operators to provide shower facilities and changing areas to pesticide handlers so that they could wash off before leaving work. While the draft proposal was under review at the White House Office of Information and Regulatory Affairs (OIRA), though, that provision was stripped from the proposal on the ludicrous grounds that the EPA could not predict how often workers would make use of available showers. In the final rule, the EPA should reinstate the protections designed to minimize take-home exposures.
Even though the EPA has plenty of time to complete its revisions to the WPS before President Obama leaves the White House, it should not allow any further delays in issuing a final rule. The agency has proposed the new rules, taken public comment, and is now reviewing those comments and making appropriate changes.
The DOL still has a lot of work left to do if it is to complete the new rulemakings on child labor in agriculture before the end of the Obama Administration. Labor Secretary Perez should work with President Obama to explain that the DOL made a mistake when it announced child farm-labor regulations would be left alone for the remainder of this Administration. Then the DOL should re-propose the key aspects of the rules, take comment, and finalize them. Fortunately, the re-proposal step can be accomplished with ease, by simply using the language from the earlier proposal. If the DOL does this soon, the rules could be complete by the time President Obama leaves office.
Update: The EPA issued a final rule strengthening its worker protection standards for agricultural workers in November 2015. Given that the standards have not been updated in over 20 years, the revisions were long overdue. The final rule retains many of the provisions that EPA included in its proposal. One notable change was that the agency strengthened the final rule by setting a minimum age of 18 for pesticide handling activities, whereas the proposal would have set the minimum age at only 16.
Much of the rules’ implementation and enforcement responsibilities fall on the EPA’s state-based partners, which could ultimately undermine the effectiveness of the new enhanced protection standards. In some states, where agricultural interests hold considerable political clout, enforcement could be meek or spotty. In others, even well-intentioned state agencies will be hampered by a chronic lack of resources. The new rule will no doubt deliver safer working conditions for agricultural workers—particularly, the younger workers who toil on farms across the country—but how much of a difference it will make remains to be seen.
[vii] Child Labor Regulations, Orders and Statements of Interpretation; Child Labor Violations—Civil Money Penalties, 76 Fed. Reg. 54836 (Sept. 2, 2011). Note that non-agricultural H.O.s apply to children under the age of 18.