May 5, 2010

IX. The United States Government’s Failure to Protect Farmworker Children

Protecting child farmworkers from dangerous and exploitative work is the responsibility of lawmakers as well as the agencies that implement the law, including the US Department of Labor and the Environmental Protection Agency (EPA). By providing children working in agriculture less protection than all other working children, and by poorly enforcing what protections they do have, the government is failing in its responsibility to safeguard the health, education and safety of farmworker children.

Fair Labor Standards Act

Child labor is first and foremost regulated by the Fair Labor Standards Act (FLSA), the federal law that sets minimum ages for work, maximum work-hours per day and week, and minimum hourly wages. The FLSA dates back to 1938 and reflects a radically different era in the United States, a time when “agriculture” was synonymous with “family farm,” and a quarter of all Americans still lived and worked on farms. Initially, farmworkers were excluded entirely from the law's protection, and the minimal restrictions on child labor in agriculture were not added until 1974.

The most glaring deficiency of the FLSA is its disparate treatment of farmworker and non-farmworker children. Children working in agricultural occupations receive much less protection than children working in all other jobs. As put by the General Accounting Office, “children can legally work in agriculture under conditions that would be illegal in other work settings.”[280] For example:

  • Outside of agriculture, the employment of children younger than 14 is prohibited.[281] In agriculture, there is no minimum age at which employers may hire children to work unlimited hours outside of school, day or night, provided the work takes place on a small farm with written parental consent.[282] 
  • Outside of agriculture, employment of children ages 12 and 13 is forbidden. In agriculture, any employer, regardless of size, may hire children ages 12 and 13 to work unlimited hours outside of school, provided they have written parental consent or work on a farm where a parent is employed.[283] 
  • Outside of agriculture, the standard minimum age for work is 16. Children ages 14 and 15 can work in certain limited jobs, such as cashiers, stocking shelves, or washing cars, in retail or food service stores, and in gas stations but only for limited hours: up to 40 hours in a nonschool week; up to 18 hours in a school week; up to 8 hours on a nonschool day; and up to 3 hours on a school day. In addition, outside of agriculture, 14- and 15-year olds may not work before 7:00 a.m. or after 7:00 p.m. (9 p.m. in the summer). There are no similar restrictions protecting children working in agriculture. In agriculture, employers may hire children ages 14 and 15 to work unlimited hours outside of school.  There is no parental consent requirement.[284]
  • In nonagricultural occupations, the minimum age for particularly hazardous work is 18, including for children working in a parent’s business. In agriculture, employers may require or allow 16 and 17-year olds to work in particularly hazardous occupations.[285] Children who work on a farm owned or operated by their parents can do particularly hazardous work at any age, no matter how young. For example, using a power-driven circular saw or band saw is allowed for children starting at age 16 in agriculture, whereas in other industries the minimum age for using such saws is 18 years.[286] This disparate treatment is particularly troublesome given agriculture's position as the most dangerous occupation for working children in the United States.

States have the power to provide stronger protections for farmworker children than federal law, but most state child labor laws are no more protective than federal law. Seventeen states do not cover agricultural employment in their child labor laws at all.[287]

Children’s Act for Responsible Employment (CARE): Closing the Legal Loophole

For the last decade, members of the US Congress have repeatedly introduced draft legislation into both the Senate and House of Representatives that would eliminate the double-standard in US child labor laws and apply the same age and hour restrictions to children working in agriculture that already apply to other industries. However, to date, none of the bills have ever reached a vote.

As this report goes to press, legislation is still pending. In September 2009, Representative Lucille Roybal-Allard of California introduced legislation that would amend the Fair Labor Standards Act and apply the same age and hour requirements to children working in agriculture as for children working in other occupations (except for the existing family-farm provision that excuses from all child labor requirements parents whose children work on a farm that the parents own or operate). The Roybal-Allard bill, the Children's Act for Responsible Employment (CARE) (HR 3564), has three key provisions. First, it would prohibit the employment of children ages 13 and younger in agriculture, except for those working on farms owned and operated by their parents. It would allow 14- and 15-year-olds to work only for limited hours, outside of school hours. Second, it would raise the minimum age for particularly hazardous jobs in agriculture from 16 to 18. Third, it would increase the maximum amount of civil money penalties from $11,000 to $15,000, and would for the first time require a minimum penalty of $500 for each violation. In the case of a violation that causes serious injury, serious illness, or death, there would be a minimum penalty of $15,000 and a maximum penalty of $50,000, which maximum could be doubled where the violation is repeated or willful.[288]

As of April 2010, the bill had more than 80 Congressional co-sponsors, but no formal action had been taken.

Failure to Ensure Adequate Minimum Age, Maximum Hour, and Minimum Wage Protections: the US Department of Labor

I’m a bit tired of seeing all my pediatric patients out there working against the law.
—Josie Ellis, registered nurse and director of Vecinos Inc. Farmworker Health Program, Sylva, North Carolina, July 28, 2009

The US Department of Labor is responsible for enforcing the FLSA, which it does through its Wage and Hour Division. The secretary of labor can seek redress for child labor violations through injunctive relief, civil money penalties, and criminal sanction. (Only the secretary of labor—not individual employees or their parents—can sue an employer for violations of the FLSA’s child labor provisions.) Many of the employers of children profiled in this report would not be subject to sanction for child labor because the children are working legally under US federal law as it applies to agricultural employment. However, far too many agricultural employers violate the law without penalty.

The Wage and Hour Division’s enforcement of child labor laws in agriculture has been extremely weak. In 2009 it found only 36 cases of child labor violations involving 109 children in agriculture, constituting only 4 percent of all child labor cases that year.[289] This number is not only astonishingly low, but also reflects a dramatic decline in overall enforcement of child labor laws from 2001.[290] By comparison, in 1998, the Department of Labor found 104 cases of child labor violations in agriculture.[291]

The Wage and Hour Division suffers from too few investigators, too little attention devoted to child labor, and, of those resources devoted to child labor, too little focus on agriculture. As a result, growers have no reason to fear using children illegally.

The division does not dedicate staff to inspect for child labor exclusively, but instead maintains that all full investigations—even those made under laws other than the FLSA—include a child labor component.[292] Thus, according to Arthur M. Kershner, Jr., youth employment branch chief, inspectors conducting an investigation of an agricultural employer will always look for child labor violations, even if the investigation has been triggered by complaints of other violations.[293] Yet the low numbers of child labor cases that result from these investigations call this into question: in 2009, the Wage and Hour Diviaion made 1,379 full investigations in agriculture but found only child labor violations in less than 3 percent of those investigations (36 cases, as noted above).[294] One possible reason the Wage and Hour Division finds so few child labor violations is that it conducts very few investigations in agriculture that start out as child labor investigations. In 2007 over 98 percent of investigations of agricultural employers were started for reasons unrelated to child labor.[295]

Until recently the Wage and Hour Division has not tailored its investigative techniques to fit the particular work environment and characteristics of children working in the fields. Many agricultural workers move from farm to farm and do not stay long in one place; they often work irregular hours, including very early in the morning and on weekends; they are frequently unfamiliar with their rights; they often do not speak English (or even Spanish in the case of indigenous language speakers from Mexico and Central America); and those who are undocumented tend to be wary of any government investigators. 

These factors highlight how critical it is that the Department of Labor develop better methods for determining where child labor violations are likely to occur and investigate child labor proactively without waiting for workers to make complaints. Unlike issues such as non-payment of wages, working children or their parents are not going to report child labor.

The Wage and Hour Division’s failure to adequately enforce child labor laws in agriculture is compounded by its overall failure to address wage violations against adult workers that contribute to farmworker poverty and push children to work to contribute to family income. For example, the US Government Accountability Office (GAO) found in 2009 that the Wage and Hour Division responds inadequately to complaints of wage fraud and non-payment of wages, leaving low wage workers vulnerable to wage theft.[296] The GAO concluded that the division’s system actively discouraged complaints, for example by directing most calls to voicemail but requiring an investigator speak with the employee before an investigation can be initiated, by not returning phone calls, by providing conflicting or misleading information about how to file a complaint, and by accepting only written complaints at some offices.[297] Activists and service providers whom Human Rights Watch interviewed in North Carolina, for example, told us that both state and federal department of labor offices are difficult for workers to access, even more so for children. In a survey by the Southern Poverty Law Center of some 500 Latino immigrants in five states, published in 2009, about 80 percent said they had no idea how to contact government enforcement agencies such as the Department of Labor.[298]

Even when violations are found, sanctions generally are weak and ineffective.[299] The Wage and Hour Division can assess civil money penalties for child labor violations. The maximum civil money penalty available for a nonwillful child labor violation is $11,000 for each employee who experiences a violation, and $50,000 for each violation that causes death or serious injury of a child, which may be doubled for repeated or willful violations.[300] The amount of the penalty must be based on the size of the business and the gravity of the violation.[301] The amount of civil money penalties ordered for child labor violations is far too low. For example, in 2008, the average penalty was only $890 per child illegally employed, which is only 8 percent of the maximum penalty of $11,000 then in effect.[302] As another example, according to news reports, in 2009 the division assessed two blueberry growers only $2,584 for child labor violations after it found children as young as six years old picking in the growers’ fields.[303]Moreover, these penalty amounts do not represent penalties actually paid because assessed penalties may be negotiated downwards in order to resolve cases and avoid litigation.[304]

The “hot goods” provision is another enforcement tool. The provision prohibits the shipment in interstate commerce of any goods produced in violation of minimum wage, overtime, or child labor requirements.[305] It can be extremely effective, particularly in agriculture, in that it allows the Wage and Hour Division to seek temporary restraining orders preventing the movement of tainted goods. This creates great incentives for companies, growers, and other affected businesses to cooperate with the division. Such cooperation has included future compliance agreements and arrangements for ongoing monitoring. Use of the “hot goods” provision is still an exceptional law enforcement tool: the division invoked the provision only once in 2008 and once in 2009. [306]

The Wage and Hour Division has recently taken steps to address some of its basic shortcomings and improve the quality of the information it collects to litigate cases.[307] In 2009 the division hired several hundred new inspectors, who were still being trained at the time of writing, bringing the total number of inspectors to 894 in April 2010.[308] The division is also providing inspectors with basic technology such as cell phones, jump drives, and digital video and audio equipment; paying overtime so that inspectors can work weekends and early mornings; and adding bilingual staff.[309] The division says it has begun tracking harvests and plans to strengthen relations with community organizations so that its inspectors will have information about where farmworkers are likely to be.[310] It remained to be seen at the time of writing whether these efforts would result in overall more vigorous enforcement of protections for child farmworkers.

Failure to Protect Children’s Health and Safety

Several sets of laws address hazards for children in agricultural work. First are the Department of Labor’s hazardous orders, which apply specifically to children. Second is the federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), enforced by the US Environmental Protection Agency. Third is the Occupational Safety and Health Act, enforced by the Occupational Safety and Health Administration (OSHA) in the Department of Labor. These latter two laws (and their implementing regulations) affect workers of all ages.

The Department of Labor’s hazardous orders

Under the FLSA, the Department of Labor is responsible for determining what jobs are hazardous and therefore prohibited for children under age 16 working on farms that are not owned or operated by their parents (or for some tasks, children ages 14 and older who have received special training). The Department of Labor also determines what jobs are hazardous and thus prohibited for children under age 18 in all non-agricultural industries. For agriculture, occupations deemed particularly hazardous for children include operating equipment such as tractors of over 20 horsepower take-off, corn and cotton pickers, grain combines, and hay mowers; working in yards, pens, or stalls occupied by a bull, boar, or stud horse; working from a ladder at a height of over 20 feet; working inside fruit, forage, or grain storage containers; and handling or applying agricultural chemicals classified as Category I or II of toxicity.[311] Children under age 16 may still handle pesticides of lower toxicity, and children ages 16 and older may work in agriculture without any age-related restrictions. Notably, a 2003 study of children under age 18 with acute occupational pesticide-related illnesses found that only a few appeared to working in violation of these regulations.[312]

In 2002 NIOSH, in a report to the Department of Labor, recommended amending the hazardous orders for both agricultural and non-agricultural jobs.[313] In agriculture, NIOSH recommended, among other things, revising the tractor exemption for certified 14- and 15-year olds to require rollover protective structures and seatbelts; lowering the height restrictions on ladders from 20 to 6 feet; and expanding the prohibition on handling certain agricultural chemicals to “[p]erforming any tasks that would fall under the EPA definition of ‘pesticide handler.’”[314] To date, none of the recommendations have been implemented. Although the Department of Labor has taken steps to implement some of NIOSH’s recommendations for nonagricultural hazardous orders, initiating changes to agricultural hazardous orders was not on the department’s regulatory agenda at the time of writing,[315] despite the younger ages for hazardous work in agriculture and high rates of injuries and fatalities compared with other sectors.

Even existing hazardous orders are almost never enforced for agriculture. In 2009 the Wage and Hour Division cited only two violations of agricultural hazardous orders in two cases, or 0.14 percent of the 1,432 hazardous occupation violations it found that year.[316]

The Environmental Protection Agency (EPA)                                       

The US Environmental Protection Agency oversees the registration, distribution, sale, and use of pesticides. The EPA’s Worker Protection Standard is a federal regulation intended to “reduce the risks of illness or injury resulting from . . . occupational exposures to pesticides.”[317] The Worker Protection Standard forbids employers from requiring or allowing workers, other than trained pesticide handlers, to enter or remain in areas being treated with pesticides. It requires employers to notify workers when areas have been treated by pesticides, either orally, by means of prominently posted “Danger” signs, or both, depending on the pesticide's labeling statement. The Worker Protection Standard further requires that workers be trained in a language they understand on 13 specific items regarding pesticide safety, pesticide-related illnesses, and emergency responses to pesticide exposure. The Worker Protection Standard sets no minimum age for mixing or applying pesticides (although, as noted above, regulations set by the Department of Labor under the FLSA prohibit children under 16 from handling category I and II pesticides).

The same regulations that establish the Worker Protection Standard also set restricted-entry intervals (REIs), the period of time after a pesticide's application during which workers should not be in the treated areas without protective equipment.[318] The REI is listed on the label for each pesticide and, generally ranges from about 12 to 72 hours.[319]  Dry conditions may necessitate a longer REI, particularly among toxicity category I pesticides, which are the most toxic.[320] The regulations also restrict the application of pesticides under certain conditions, such as strong winds.

Despite the greater vulnerability of children to pesticides, there is no special consideration for them in EPA regulations at all. The Worker Protection Standard and the REI regulations are formulated with adults—and only adults—in mind. In the Worker Protection Standard there is no prohibition on children mixing, handling, or applying pesticides. Restricted-entry intervals are set using a 154-pound adult male as a model—they are not adapted for children, pregnant women, or others who differ from this model. A 2003 study of children with acute occupational pesticide-related poisoning found that 26 percent of ill children in agriculture were exposed despite compliance with restricted-entry interval requirements, suggesting, according to the authors, “that longer intervals may be requiredto protect youths.”[321] A process to revise the Worker Protection Standard has been going on for more than a decade. Although it is possible that revisions may include, for example, age limits on applying the most toxic pesticides, they will be reopened for public comment and are, at best, several years from being put into place.

Notably, in December 2009, the EPA announced plans to strengthen its assessment of pesticide health risks for children—farmworkers and others—with a strong emphasis on risks for children in the fields.[322] The proposed risk assessment techniques would include “using an additional safety/uncertainty factor to protect children, considering aggregate exposures to pesticides from multiple sources, considering cumulative effects that may occur from exposure to multiple pesticides with a common mechanism of toxicity, and reporting potential risks for individuals who had not been explicitly considered, specifically workers age 12-17 and children taken into agricultural fields while their parents work.”[323]The period for public comments on the policy paper outlining the EPA’s plans closed in April 2010 and at the time of writing the EPA was reviewing the comments received. The worker advocates who submitted comments, such as the California Rural Legal Assistance Foundation, the Farmworker Pesticide Project, and the Pesticide Action Network, urged the EPA to set forth an explicit timeline for the development and application of these more protective policies, including reliance upon a scientific advisory panel review and public input. The outcome of the proposed changes remains to be seen.

The Worker Protection Standard and REI regulations are enforced by the individual states, which often do so poorly.[324] As noted above, children described to Human Rights Watch being exposed to pesticides through spraying and drift in violation of the regulations, re-entering fields before the pesticides had even dried on the plants, and not being trained on pesticide safety. In western Michigan a farm operator told us that he posted information about spraying at the farm headquarters.[325] However, the headquarters were located in a completely different location from the fields, and workers did not go there on a daily basis. In eastern Michigan a girl told us: “The signs [in the fields] say pesticides only when the inspector comes. When he’s not here we don’t know. I’ve only seen these signs once. The inspector rarely comes.”[326]

The EPA’s Office of Pesticide Programs has a grant relationship with states to implement pesticide programs and could use the program to push for better enforcement by states. EPA officials in the Office of Pesticides Programs also told us that they have now clearly defined what an inspection should include to be meaningful.[327] Some states, such as California and Washington, have more extensive pesticide safety programs applicable to farmworkers.

The Occupational Safety and Health Administration (OSHA)

The Occupational Safety and Health Administration (OSHA) within the US Department of Labor is the federal agency with primary responsibility for setting and enforcing standards to promote safe and healthy working conditions for all workers. OSHA has the power to issue safety and health regulations, impose civil monetary penalties, and pursue criminal penalties against employers who have violated the Occupational Safety and Health (OSH) Act or its regulations. Potentially protective to children working in agriculture are the agency’s Field Sanitation Standard, which requires agricultural employers to provide drinking water, handwashing facilities, and toilets;[328] its regulations on tractors; and its power to inspect and penalize employers for workplace hazards. However, each of these measures is limited in its application to farmworkers.[329]

Aside from enforcement problems, several legal restrictions prevent OSHA from protecting many farmworkers. Congress annually limits the application of the OSH Act by exempting from all enforcement activity any farm that employs 10 or fewer employees and has not had an active temporary labor camp within the last 12 months.[330] Not only are these small farms not required to provide drinking water and sanitation facilities, the limit of OSHA jurisdiction to farms with 11 or more workers applies even to cases where workers face imminent danger or where an accident or death has occurred. Whatever happens on a farm with 10 or fewer employees that has no active temporary labor camp, OSHA may not investigate.

Even on farms with more than 10 employees, many of OSHA’s “general industry standards” that could protect farmworkers, including children, do not apply to agriculture.[331] Among those that do not are those regulating work at heights (such as work on ladders), the use of personal protective requirement (including reinforced shoes and gloves), and the availability of medical services and first aid.[332] And OSHA has no standard at all relating to musculo-skeletal injuries, which are among the most common injuries for children (as well as adults) working in agriculture.

OSHA officials state that OSHA can rely on its so-called general duty clause where standards for agriculture are insufficient.[333] This is a requirement in the OSH Act itself that each employer must provide each employee a job and a place to work “free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” But because this language is much more general that requirements in OSHA regulations, it is more difficult to prove a violation of this general duty clause. Moreover, it is not clear that OSHA has invoked this clause to any significant degree to protect farmworkers.

OSHA officials also told Human Rights Watch that OSHA does not conduct targeted investigations on farms but instead only responds to written complaints, including of worker deaths or situations of imminent danger.[334]

Even OSHA regulations that do apply in agriculture are often not protective enough. One example relates to tractors, where the standard does not cover many older tractors. As noted above, tractor roll-overs are a leading cause of death for farmworkers, including children. Serious injuries from tractors can be prevented by roll-over bars or similar devices.[335] Yet OSHA standards requiring roll-over protective structures cover only about 8 percent of all US farms due to a variety of exemptions,[336] and in 2006, only 59 percent of tractors used on farms in the US were equipped with them.[337]

Finally, individual states may develop and operate their own occupational safety and health programs. These programs, called State Plans, must be approved and monitored by federal OSHA. Once in place, they supplant (with limited exceptions) direct federal OSHA enforcement in that state. Twenty-five states and two territories at the time of writing had approved State Plans.[338] OSHA previously did little monitoring of state plans, but officials told Human Rights Watch that they were initiating a review of every state plan following serious deficiencies in enforcement discovered in a review of Nevada’s state plan.[339]

[280] US General Accounting Office, “Child Labor in Agriculture:  Characteristics and Legality of Work,” no. GAO/HEHS-98-112R, 1998, p. 2.

[281] The FLSA allows for very limited exceptions to this, including work delivering newspapers, acting, and making evergreen wreaths.

[282] 29 U.S.C. sec. 213(c)(1)(A).  A "small farm" is one which did not employ more than 500 man-days of agricultural labor (or about 7 workers) during any calendar quarter of the preceding year.

[283] 29 U.S.C. sec. 213(c)(1)(B).

[284] 29 U.S.C. sec. 213(c)(1)(C).

[285] 29 U.S.C. sec. 213(c)(2).

[286]Compare 29 C.F.R. 570.71(a)(3)(iv) (power saws in agriculture) with 570.65(a)(i) (power saws in all other industries).

[287] The 17 states not listing agricultural employment among sectors covered by their child labor laws are: Alabama, Delaware (non-hazardous employment), Georgia, Kansas, Kentucky, Louisiana, Maryland (non-hazardous employment), Mississippi, Montana, Nebraska (covers only work in detasseling and beet fields), North Carolina, Oklahoma, Rhode Island, Tennessee, Texas, West Virginia (non-hazardous employment), and Wyoming. Wage and Hour Division, “State Child Labor Laws Applicable to Agricultural Employment January 1, 2010,” http://www.dol.gov/whd/state/agriemp2.htm (accessed January 29, 2010).

[288] The child labor amendments in the 2008 Genetic Information Non-discrimination Act (“GINA”) do not impose any minimum penalty and apply only to major injuries and death, not to major illnesses.

[289] Email from Michael Kravitz, deputy director, Division of Performance, Budget, and Departmental Liaison, Wage and Hour Division, US Department of Labor, to Human Rights Watch, April 9, 2010. Regarding all child labor cases, the Wage and Hour Division found 887 cases involving 3,448 children in 2009.

[290] US Department of Labor, “2008 Statistics Fact Sheet,” http://www.dol.gov/whd/statistics/2008FiscalYear.htm (accessed April 22, 2010). The annual number of child labor cases in agriculture in the three-year period from 2007 to 2009 remained stable—35 cases in 2007, 34 in 2008, and 36 in 2009—indicating that 2009 was not an aberration in recent enforcement numbers. US Department of Labor, “Report for the period of September 1, 2007 to August 30, 2009, made by the Government of the United States of America, in accordance with Article 22 of the Constitution of the International Labor Organization, on the measures taken to give effect to the provisions of the Worst Forms of Child Labor Convention, 1999 (No. 182),” undated, p. 9.

[291]US Department of Labor, "Compliance Highlights: 1998 Agricultural Activity Report, Wage and Hour Division," March 1999, p. 2.

[292] Human Rights Watch interview with Nancy Leppink, deputy administrator; Arthur M. Kerschner, Jr., youth employment branch chief, Division of Enforcement Policy; and Michael Kravitz, deputy director, Division of Performance, Budget, and Departmental Liaison, Wage and Hour Division, US Department of Labor, Washington, DC, February 17, 2010.

[293] Ibid.

[294] Email from Kravitz, Wage and Hour Division, US Department of Labor, April 9, 2010.

[295] US Department of Labor data on file with Human Rights Watch.

[296] US Government Accountability Office, “Department of Labor Wage and Hour Division’s Complaint Intake and Investigative Processes Leave Low Wage Workers Vulnerable to Wage Theft,” Testimony Before the Committee on Education and Labor, House of Representatives, March 25, 2009.

[297] Ibid., p. 18.

[298] Southern Poverty Law Center, “Under Siege: Life for Low-Income Latinos in the South,” p. 6.

[299] The Government Accountability Office also found that where the Wage and Hour Division made phone calls to the employer (known as “conciliations”) “where the employer refuses to pay, their offices lack the resources to investigate further or compel payment. . .  [I]n some conciliations, the employer is able to avoid paying back wages simply by refusing.” US Government Accountability Office, “Department of Labor Wage and Hour Division’s Complaint Intake and Investigative Processes Leave Low Wage Workers Vulnerable to Wage Theft,” Testimony Before the Committee on Education and Labor, House of Representatives, p. 119.

[300] Genetic Information Non-discrimination Act (GINA), sec. 302 (amending sec. 16(3) of the Fair Labor Standards Act).

[301] Fair Labor Standards Act, sec. 16(e).

[302] According to data from the Department of Labor, it concluded 1,129 cases of child labor violations in 2008 involving 4,737 children, and assessed $4,218,088 in child labor civil monetary penalties. US Department of Labor, “Report for the period of September 1, 2007 to August 30, 2009, made by the Government of the United States of America, in accordance with Article 22 of the Constitution of the International Labor Organization, on the measures taken to give effect to the provisions of the Worst Forms of Child Labor Convention, 1999 (No. 182),” sec. II. The Wage and Hour Division was not able to make information on penalties assessed in 2009 available at the time of writing.

[303] Luder, “Department of Labor Levies Fines for Child Labor Violations,” The Packer.

[304] Human Rights Watch interview with Leppink, Kerschner, and Kravitz, Wage and Hour Division, US Department of Labor, February 17, 2010.

[305]The hot good provision came into use by the Wage and Hour Division in 1998, although it has been part of the FLSA since its origination in 1938. The provision as it pertains to child labor reads in part:  "No producer, manufacturer, or dealer shall ship or deliver for shipment in commerce any goods produced in an establishment situated in the United States in or about which within thirty days prior to the removal of such goods there from any oppressive child labor has been employed." 29 U.S.C. sec. 212(a).

[306] Email from Kravitz, Wage and Hour Division, US Department of Labor, April 9, 2010.

[307] Human Rights Watch interview with Leppink, Kerschner, and Kravitz, Wage and Hour Division, US Department of Labor, February 17, 2010.

[308] Email from Kravitz, Wage and Hour Division, US Department of Labor, April 9, 2010.

[309] Human Rights Watch interview with Leppink, Kerschner, and Kravitz, Wage and Hour Division, US Department of Labor, February 17, 2010.

[310] Ibid.

[311] 29 C.F.R. sec. 570.71.

[312] Three of the ninety-nine children for whom such information was available. Calvert et al, “Acute Pesticide-Related Illnesses Among Working Youths, 1988–1999,” American Journal of Public Health, p. 609. However, working in violation of the law may discourage reporting.

[313]NIOSH, “National Institute for Occupational Safety and Health (NIOSH) Recommendations to the U.S. Department of Labor for Changes to Hazardous Orders,” May 3, 2002, http://youthrules.dol.gov/niosh_recs_to_dol_050302.pdf (accessed April 5, 2010).

[314] Ibid., pp. 67-98.

[315] Email from Nancy Leppink, deputy administrator, Wage and Hour Division, US Department of Labor, to Human Rights Watch, April 17, 2010.

[316] Email from Kravitz, Wage and Hour Division, US Department of Labor, April 9, 2010.

[317] 40 C.F.R. sec. 170.1. See 40 C.F.R. sec. 170 and following sections for the entire Worker Protection Standard.

[318] See "Restricted-entry statements," 40 C.F.R. sec. 156.208.

[319] 40 C.F.R. sec.156.208(c)(2)(i)-(iii).

[320] Ibid., sec. 156.208(c)(2)(i).

[321]Calvert et al, “Acute Pesticide-Related Illnesses Among Working Youths, 1988–1999,” American Journal of Public Health, p. 609.

[322] EPA, “EPA to Strengthen Oversight of Pesticide’s Impact on Children and Farmworkers,” EPA news release, December 8, 2009. The Office of Pesticide Programs December 2009 policy paper “Revised Risk Assessment Methods for Workers, Children of Workers in Agricultural Fields, and Pesticides with

No Food Uses” can be found on the following webpage: http://www.epa.gov/pesticides/health/worker-rsk-assmnt.html (accessed April 5, 2010).

[323] EPA, “Worker Risk Assessment,” February 2010, http://www.epa.gov/pesticides/health/worker-rsk-assmnt.html (accessed April 5, 2010).

[324] “Other regulations for pesticide safety and field sanitation, such as central posting of pesticide application information in a language that workers can understand and posting the restricted entry intervals for fields on which pesticides have been applied, are often not enforced in farmworker settings.” Arcury and Quandt, “Pesticide Exposure Among Farmworkers and Their Families,” Latino Farmworkers in the Eastern United States, Arcury and Quandt, eds., p. 107.

[325] Human Rights Watch interview with farm operator, Michigan, August 28, 2009.

[326] Human Rights Watch interview with Andrea C., age 17, Saline, Michigan, August 24, 2009. Research in North Carolina found that: “Fewer than half of farmworkers interviewed indicated that they are told about pesticides that have been applied where they are working, that information on pesticides that have been applied is posted in an accessible location, or that warning signs are posted around fields to which pesticides have been applied.” Arcury and Quandt, “Pesticide Exposure Among Farmworkers and Their Families,” Latino Farmworkers in the Eastern United States, Arcury and Quandt, eds., p. 113.

[327] Human Rights Watch interview with Kevin Keaney and staff of the Office of Pesticide Programs, US Environmental Protection Agency, Washington, DC, February 23, 2010.

[328] OSHA’s 1987 Field Sanitation Standard, which is enforced by DOL’s Wage and Hour Division, requires agricultural employers to provide workers with: 

(1)  Cool and potable drinking water in sufficient amounts, dispensed by single-use drinking cups or by fountains and readily accessible to all; and

(2)  One toilet and a handwashing facility for each twenty employees, located within a quarter-mile walk.

OSHA Field Sanitation Standard (1987), 52 Fed. Reg. 16050 (May 1, 1987), 29 C.F.R. sec. 1928.110. For many years, OSHA refused to issue any regulation on this subject, but it was finally forced to do so by order of a federal court, which excoriated OSHA’s 14 years of “intractable . . .resistance” as a “disgraceful chapter of legal neglect.” Farmworker Justice Fund, Inc. v. Brock, 811 F.2d 613, 614 (D.C.Cir 1987). After issuing the standard, OSHA predicted that its implementation would reduce by hundreds of thousands the annual incidence of farmworker illnesses, injuries, and deaths, including heat-related deaths and injuries, parasitic intestinal illnesses, pesticide-related illnesses, and urinary tract infections.US Department of Labor, Occupational Safety and Health Administration, "OSHA's Field Sanitation Standard," Fact Sheet No. OSHA 92-25, p. 2.

[329] The analysis of OSHA’s limitations draws in part on: Shelly Davis and James B. Leonard, “The Ones the Law Forgot: Children Working in Agriculture,” 2000, available at: http://www.fwjustice.org/Health&Safety/CHILD%20LABOR%20REPORT%20-%20FINAL.pdf (accessed April 8, 2010).

[330] Congress exempts small farms from enforcement of OSHA standards by attaching riders to annual appropriation bills.

[331] The seven OSHA safety and health regulations that do apply to agriculture govern temporary labor camps, story and handling of anhydrous ammonia, logging operations, slow-moving vehicles, hazard communication, cadmium, and the retention of US Department of Transportation markings, placards, and labels. 29 C.F.R. sec. 1928.21(a).

[332] As noted in the previous footnote, only those OSHA safety and health regulations listed there apply in agriculture.

[333] Human Rights Watch interview with Deborah Berkowitz, chief of staff; Richard E. Fairfax, director, Enforcement Programs; and Thomas M. Galassi, deputy director, enforcement programs, OSHA, US Department of Labor, Washington, DC, February 17, 2010. “General duty clause” refers to section 5(a)(1) of the Occupational Safety and Health Act, which requires employers to “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”

[334] Human Rights Watch interview with Berkowitz, Fairfax, and Galassi, OSHA, US Department of Labor, February 17, 2010.

[335]NIOSH estimates that fatality rates due to tractor overturns could be reduced by a minimum of 71 percent if all tractors in the US were equipped with roll-over protective structures. John Meyers, NIOSH Division of Safety Research, “Preventing Death and Injury in Tractor Overturns with Roll-Over Protective Structures,” NIOSH Science Blog, January 5, 2009, http://www.cdc.gov/niosh/blog/nsb010509_rops.html (accessed April 4, 2010). For additionalinformation, see Davis and Leonard, “The Ones the LawForgot:Children Working in Agriculture.”

[336] In 1976, OSHA required all agricultural employers to equip all employee-operated tractors manufactured after October 25, 1976, with roll-over protective structures and safety belts, but family members are exempted and the standard is not enforced on farms with fewer than 11 full-time employees in 47 states. Since 1986, nearly all new agricultural tractors sold in the United States have been equipped with roll-over protective structures and seatbelts as standard equipment, but tractors manufactured before this date remain in use, despite the modest expense of updating the equipment compared with that of injuries and deaths from rollovers. Meyers, NIOSH Division of Safety Research, “Preventing Death and Injury in Tractor Overturns with Roll-Over Protective Structures,” NIOSH Science Blog. See 29 C.F.R. sec. 1928.52.

[337] NIOSH, “Agricultural Safety.”

[338] OSHA, US Department of Labor, “Agricultural Operations: Standards,” undated http://www.osha.gov/SLTC/agriculturaloperations/standards.html (accessed March 17, 2010). Three states—California, Oregon, and Washington—have so-called OSHA state plans, under which a state agency administers the OSH Act. These three states have state regulations that apply to farms with fewer than 11 employees, but these states must use state funds to enforce this part of their state regulations.

[339] Human Rights Watch interview with Berkowitz, Fairfax, and Galassi, OSHA, US Department of Labor, February 17, 2010. See OSHA, “Review of the Nevada Occupational Safety and Health Program,” October 20, 2009, http://www.osha.gov/dcsp/final-nevada-report.html (accessed April 5, 2010).