Everyone violates the law one way or another.169
This report details the ways in which juvenile farmworkers are endangered and exploited on a daily basis. They work too many hours at too-young ages, burdened with fatigue when they should be studying, playing, or at school. They are not paid minimum wage. Their safety is compromised and their health is at risk. They are also, for the most part, unprotected by the U.S. government.
The United States prides itself on respect for human rights and frequently decries child labor practices in other countries. The Fair Labor Standards Act prohibits "oppressive child labor," defined as work that may be detrimental to children's health or well-being.170 Yet hundreds of thousands of juveniles working in agriculture do labor under oppressive conditions in the U.S.
There are several reasons for this, high among them the fact that U.S. law is grossly and unjustifiably inadequate-not only does it offer insufficient protection for farmworker children and adolescents, but it offers them vastly less protection than it does for juveniles working in other occupations. Further worsening the situation, government enforcement of even these deficient laws is sporadic and weak. In addition, Congress has eviscerated in recent years the ability of publicly-funded legal aid offices to assist farmworkers, by prohibiting class-action lawsuits and prohibiting the representation of persons in the U.S. without proper documentation.171 In sum, juvenile farmworkers are left with limited protection and few means of recourse when their rights are violated.
The Fair Labor Standards Act and Enforcement by the Department of Labor
The Fair Labor Standards Act (FLSA) is the federal law that sets minimum ages for work, maximum numbers of work-hours per day and per week, and the minimum hourly wage. It originated in 1938 and has been modified numerous times since. Farmworkers originally were not protected at all by the law, and still are not covered fully. It was not until 1974 that restrictions on child labor in agriculture-albeit minimal-were incorporated.
The most glaring deficiency of the FLSA is its disparate treatment of farmworker and nonfarmworker children. Children working in nonagricultural occupations receive much greater protection against excessive hours of work, work at early ages, and work under hazardous conditions. In other words, as put by the General Accounting Office, "children can legally work in agriculture under conditions that would be illegal in other work settings."172 For example:
· In agriculture, employers may hire children younger than twelve to work unlimited hours outside of school, provided the work takes place on a small farm with written parental consent. Outside of agriculture, the employment of children younger than twelve is prohibited.173
· In agriculture, employers may hire children aged twelve and thirteen to work unlimited hours outside of school, provided they have written parental consent or work on a farm where a parent is employed. Outside of agriculture, employment of children aged twelve and thirteen is forbidden.
· In agriculture, employers may hire children aged fourteen and fifteen to work unlimited hours outside of school. There is no parental consent requirement. Outside of agriculture, children aged fourteen and fifteen may work limited hours: up to forty hours in a nonschool week; up to eighteen hours in a school week; up to eight hours on a nonschool day; and up to three hours on a school day. In addition, outside of agriculture, fourteen and fifteen-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 require or allow sixteen and seventeen-year olds to work in hazardous occupations. In nonagricultural occupations, the minimum age for hazardous work is eighteen. This disparate treatment is particularly troublesome given agriculture's position as the most dangerous occupation for working children in the United States.174
Historically, agricultural employment practices in the U.S. have been regulated less than other occupations. Partly this is due to the United States inception as an agrarian society, and a lingering idealization of the agrarian life.175 Partly it is due to the unique nature of farm work and the cycles of harvest, whose rapidly changing and sometimes unpredictable needs rarely coincide with a forty-hour per week, year-round work schedule.
For juvenile farmworkers, the differential treatment still present at the beginning of the 21st century stems from the vastly different circumstances found in the United States one hundred or even fifty years ago. In 1900, less than 10 percent of eighteen-year-olds finished high school,176 and approximately 42 percent of the United States population lived on family farms.177 Children of farm families were expected to work and learn all aspects of farming, which would continue to be their occupation into adulthood.
In 1938, when the FLSA was enacted, nearly a quarter of the United States population still lived on farms,178 and only 50 percent of teenagers were finishing high school.179 At that time, the FLSA included restrictions on nonagricultural work for children, but no restrictions whatsoever on farm work for children.
Today, only about 1.5 percent of United States residents live on farms.180 Farms have changed form dramatically in the past decades; mechanization, specialization, fertilizers, and other technical innovations have led to the phenomenal growth of large-scale agriculture and the simultaneous decline of the small family farm. As a result, where once most children in agriculture were working on their own family farms, now most are working as hired hands for commercial enterprises.
Concurrent with this change in farming has been a change in education practices, including a heightened emphasis on secondary-school education for all. By 1997, the high school completion rate had risen to nearly 90 percent.181 There exists now a widespread recognition that children not only have a right to a full education, but that they have a need for that education, and, without it, are likely to end up relegated to a minimum subsistence-level job (of which farm work is one example).
With all of these changes, the rationale for protecting child workers in agriculture less than all other child workers has evaporated. Children working on farms have the same need for sleep, health, education, and recreation as their nonfarmworking peers. Poverty does not change that, nor does it eliminate these children's right to enjoy full government protection. If excessive child labor is bad for some, then it is bad for all.
Occasionally, efforts to protect child workers from the deleterious effects of long hours in difficult and demanding jobs are met with skepticism and disapproval, on the grounds that limiting children's work hours will have a negative economic impact on them and their family. This is a short-sighted objection. Limiting the extreme aspects of child labor may reduce children's-and therefore families'-incomes in the short term. In the long-term, however, favoring education over menial labor vastly increases the probability that the cycle of poverty will be broken. One farmworker advocate in New York state observed that, "At a family level, parents usually want their kids to be able to work. Because the families are so caught up in their daily economic needs, it's difficult for them to look at the long-term effects on their kids of this dangerous, hazardous work."182
The disparate legal treatment outlined above is unfair and discriminatory. Furthermore, its impact is felt predominantly by juveniles of racial minorities. This is due to the close correlation between race and occupation in farmwork. Nationally, approximately 85 percent of farmworkers, including juvenile farmworkers, are members of racial minorities; most of them are Latino.183 In some regions, including Arizona and California, 99 percent of farmworkers are Latino. This means that the FLSA's two-tiered scheme of protection-one for farmworker children, one for all other working children-corresponds closely to race and ethnicity. By explicitly discriminating against farmworker children, most of whom are Latino, the law also engages in de facto discrimination along racial lines. This may violate international law, as will be discussed in the following chapter.
Proposed Amendments to the FLSA Regarding Child Labor in Agriculture
In the House of Representatives, Representative Tom Lantos (Democrat from California) has for the past twelve years introduced the "Young American Workers' Bill of Rights."184 The bill is widely supported by children's advocates. It would enhance protection for many working children, including children working in agriculture. Among other provisions, the bill would amend the FLSA to:
· Specify that "oppressive child labor," forbidden under the Act, expressly applies to the employment of migrant farmworkers aged thirteen and under.
· For all working youth, restrict after-school work to fifteen to twenty hours per week, depending on age, and eliminate entirely before-school work.
· Broaden the FLSA's coverage to include all employers engaged in interstate commerce, regardless of their annual volume of sales.185 (Currently, the FLSA only applies to enterprises with $500,000 in annual sales or business.)
· Establish tougher criminal and civil penalties for child labor violations.
· Provide for closer coordination among federal and state child labor enforcement agencies.
In the 106th session of Congress, the proposed Young American Workers' Bill of Rights had fifty-eight cosponsors but enjoyed only limited bipartisan support.186 It is not expected to pass. "Kids don't have high-priced lobbyists," Lantos aide Chris Walker told Human Rights Watch. "[The employers] have strong lobbyists."187
In past sessions, Senator Tom Harkin (Democrat from Iowa) has introduced Senate legislation titled "The Children's Act for Responsible Employment," or CARE. CARE, which was not introduced in the 106th session but will likely be introduced again in the future, seeks to amend the FLSA to: raise the age at which youth may engage in hazardous agricultural labor from sixteen to eighteen; apply the same age and hour restrictions to agricultural employment as to other forms of employment; and increase civil and criminal penalties for child labor violations.
Enforcement of the FLSA
It is estimated that there are at least one million child labor violations in the United States each year in agriculture and 100,000 minors working illegally-that is, in violation of child labor laws--on farms.188 Only a tiny fraction of these violations are uncovered by the Wage and Hour Division (WHD) of the Department of Labor (DOL), which bears responsibility for the FLSA enforcement. In 1998, for example, WHD found 104 minors illegally employed in agriculture189-one for every 1,000 estimated to be working illegally in the fields.
Part of the problem is insufficient resources. The Wage and Hour Division does not have enough staff and funding to uncover and investigate the FLSA violations affecting minors in agriculture. As of late 1999, WHD had about 940 investigators to cover the entire country, inspecting and citing for violations against adult and child workers alike in all occupations, not just agriculture.190 This is slightly fewer investigators than the agency had in 1987.191 It works out to roughly one investigator for every 150,000 civilian workers.192 Investigators are responsible for enforcing several dozens of laws.
None of these investigators, also called enforcement officers, are dedicated exclusively to child labor; only twenty-three are designated as farm labor specialists.193
Inadequate funding means that even this relatively small staff is underutilized. Child labor in agriculture currently is a "targeted initiative" for WHD, which means that the agency proactively enforces the law rather than waiting for complaints to arise before initiating investigations. "We have a very intense and vigorous enforcement program relating to agriculture," WHD's Child Labor Coordinator told Human Rights Watch.194
The money to carry out this program, however, appears lacking, forcing some investigators to cut short their efforts. In Arizona, a WHD investigator had to call off a series of field investigations in the Willcox area after only two weeks, several weeks earlier than planned.195 She was told there was a sudden budget crisis and that there were no more funds for travel. Given that Arizona's major agricultural areas are two to four hours from Phoenix, being grounded to headquarters drastically reduces enforcement possibilities. "There's not even enough money to go to Yuma," she lamented.196 The Yuma area has about 75 percent of Arizona's farmworkers.
There is no doubt that widespread violations are out there and that WHD is capable of finding them when staff and resources are sufficiently allocated. In a 1998 investigation of grape growers, WHD found that, in California, more than 50 percent of farm labor contractors were violating the FLSA's minimum wage requirement.197 In Arizona, 50 percent of grape growers and 60 percent of farm labor contractors were found in violation of the FLSA, and 53 percent of all grape field workers were owed back wages.198 (The reports did not distinguish between juvenile and adult workers.) The problem is not an inability to find labor violations, but getting enough investigators out into the fields.
Child Labor in Agriculture Not a Priority
Until fiscal year 1998, WHD enforcement in agriculture was minimal. In fiscal year 1997, for example, the agency reported only fourteen child labor violations in agriculture.199 "Until the Salad Bowl initiative, the Department of Labor's history was not to focus on agriculture at all," according to Darlene Adkins of the National Consumers League Child Labor Coalition. "Their levels of enforcement in agriculture were very low; basically they had no presence in agriculture."200
The low priority of child labor in agriculture changed somewhat in fiscal year 1998 (October 1997 through September 1998), when the Department of Labor launched a "salad bowl" initiative. The "salad bowl" program targeted five crops-lettuce, tomatoes, cucumbers, onions, and garlic-for increased compliance within a five-year period. Labor law violations are common in all of these labor-intensive, hand-harvested crops. Different regional offices tailored their salad bowls to reflect area crops: in Arizona, chili peppers and green peppers were added; in New Jersey, blueberries; in Maryland, melons; in Louisiana, strawberries. The number of violations found increased considerably-from fourteen in 1997 to 104 in 1998-but still remained extraordinarily low.201
Even when violations are found, sanctions generally are weak and ineffective. The Wage and Hour Division can assess civil money penalties in the case of child labor violations (for example, underage workers) and for repeated and willful wage violations (WHD does not have statutory authority to assess penalties for first-time wage violations). The amount of civil money penalties ordered for child labor violations in 1990 averaged only $212 per violation.202 Wage and Hour Division officials told Human Rights Watch they did not know what the average penalty per child labor violation was in fiscal year 1998, but that the average penalty for all Wage and Hour violations was $971. 203 Since 1991, the maximum civil money penalty available for a nonwillful child labor violation has been $10,000. In practice, fines at that level are assessed only in cases of death or serious injury.204
For most growers, fines are relatively insignificant and it is easier and cheaper for them to violate the law and risk a fine than to comply with the law-especially since low rates of enforcement mean detection is rare. An Arizona investigator told Human Rights Watch that "the fines are not strong enough. I had a grower say to me, "The fine is only $1,000; I'll just pay it and keep doing things as I am."205
The same investigator noted that the Phoenix district office, in a search for something more effective than civil money penalties, has increasingly turned to civil court injunctions, memoranda of understanding, and the FLSA's "hot goods" provision.206 This trend, true of WHD's efforts nationwide, is a laudable and promising tactic.
The "hot goods" provision did not come into use by WHD until 1998, although it has been part of the FLSA since its origination in 1938. The provision prohibits the shipment in interstate commerce of any goods produced in violation of minimum wage, overtime, or child labor requirements.207 It can be extremely effective, particularly in agriculture, in that it allows the WHD 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 WHD. Such cooperation has included future compliance agreements and arrangements for ongoing monitoring.
Use of the "hot goods" provision is still an exception rather than the rule. According to Department of Labor officials, statistics on its use are unavailable.208
Growers' Avoidance of Liability
In addition to weak sanctions, another common obstacle to the FLSA enforcement in agriculture is growers' distancing of themselves from their workers through the use of farm labor contractors. The maneuver, largely successful so far, seeks to avoid grower liability for labor violations by maintaining that the workers are not employees of the grower, but of the farm labor contractor exclusively. Of course, this is a total fiction. The growers own or lease the land and determine planting, cultivation, and harvesting methods and schedules. They also pay, via the contractors, for all of the work that is done.
When growers avoid liability in this manner, there are two results. First, the growers escape accountability and are free to continue the violating practices; and second, workers' back pay, fines, and other penalties are unlikely to be collected, as many farm labor contractors are itinerant and without assets. In other words, nobody pays.
The Wage and Hour Division can beat this unjust maneuvering by finding joint employment-and therefore joint liability-between the grower and the farm labor contractor. WHD-which only recently began to seek joint liability in the farmworker context-determines joint employment by looking at a variety of factors, including: whether the grower has the authority to control, either directly or indirectly, the workers or the work they perform; whether the grower has control over employment conditions or wage payment; and whether the work performed is an integral part of the grower's business.209
Other labor experts contend that joint employment under the FLSA (as well as under the Migrant and Seasonal Agricultural Worker Protection Act (MSPA), also enforced by WHD210) is much broader, and includes all instances where growers "suffer or permit" the workers to work.211 This approach more accurately reflects the language and intent of the FLSA, which defines "employ" as "to suffer or permit to work."212
Failure to Coordinate with States
Not all states regulate child labor in agriculture. Of those that do, not all enforce their laws. In a 1999 survey by the Child Labor Coalition, only ten states reported targeting child labor compliance in agriculture the previous year.213 Of these ten states, only four-California, Florida, New Jersey, and New York-reported a significant number of investigations.214
Inexplicably, the Wage and Hour Division does not coordinate its efforts with those of the individual states. A state's level of child labor law enforcement is not taken into account in determining federal enforcement efforts.215 Indeed, WHD does not even collect state enforcement statistics, meaning they do not know which states, and to what extent, are participating at all in combating child labor in agriculture.216
The Wage and Hour Division's failure to coordinate with the states-or at least take into account state practices when formulating their own goals and strategies-means that resources may not be used to their best advantage. Efforts may be duplicated in some states; in others, a need for a heightened WHD presence may go unnoticed. In all cases, information sharing between state and federal labor departments would be appropriate, useful, and likely to increase positive enforcement results.
The Worker Protection Standard and other Environmental Protection Agency Regulations and their Enforcement
In 1992, the Environmental Protection Agency (EPA) promulgated a Worker Protection Standard intended to "reduce the risks of illness or injury resulting from . . . occupational exposures to pesticides . . ."217 This regulation was a significant step forward in protecting the health of farmworkers. 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 Standard further requires that workers be trained regarding pesticide safety, pesticide-related illnesses, and emergency responses to pesticide exposure.
Restricted-entry intervals (REIs) are also set by the EPA but do not form part of the Worker Protection Standard itself.218 Restricted-entry intervals refer to the period of time after a pesticide's application during which workers should not be in the treated areas. Generally speaking, the shortest REI is twelve hours and the longest is seventy-two hours.219 Dry conditions-as in the Arizona desert-may necessitate a longer REI, particularly among toxicity category I pesticides, which are the most toxic.220
The problem with the Worker Protection Standard and the REI regulations is that they are formulated with adults-and only adults-in mind. Restricted-entry intervals are determined using the model of a 154-pound adult male. There is no prohibition on children mixing, handling, or applying pesticides. Despite the greater vulnerability of juveniles to pesticides, there is no special consideration for them in the EPA regulations at all.
The Worker Protection Standard, although a federal regulation, is enforced by the individual states, usually by their departments of agriculture.221 In an interview with Human Rights Watch, a top EPA official said that the agency "has concern for the lack of consistency state to state regarding enforcement. . . . We're talking about enforcement of a national standard, and we'd like to think there was [consistency in enforcement], but we're not that naive."222 A national assessment by EPA of how the states are implementing and enforcing the regulations is underway as of the end of 1999.223
In response to outside concern and inquiries-notably by the General Accounting Office224 and a coalition of prominent nongovernmental organizations225-the EPA also began in the late 1990s to look at children as a special population in need of protection. As of this writing in late 1999, however, no new protections for farmworker juveniles had been proposed by the EPA.
Arizona Enforcement of EPA Regulations
In Arizona, pesticide enforcement is carried out by the Environmental Services Division of the Arizona Department of Agriculture. In addition to pesticide compliance and enforcement, the division is responsible for registering and licensing feed, fertilizers, and pesticides.
There are two immediate areas of concern regarding Arizona's enforcement of federal pesticide regulations. The first, probably true for all state agriculture departments, is that the department itself and most of its inspectors have traditionally served the needs of growers, not workers. This is reflected in the Department of Agriculture's Mission Statement: "To regulate and support Arizona agriculture in a manner that encourages farming, ranching, and agribusiness while protecting consumers and natural resources."226 It contains not a word about protecting agricultural workers.
This attitude was revealed also in an informal and unsolicited comment made to Human Rights Watch by an inspector in Yuma, who said that when growers violated worker safety standards he preferred not to cite them. "I prefer to work with the grower," he said. "I prefer to get voluntary compliance."227 A federal EPA official also acknowledged that state agriculture inspectors may be biased toward growers.228
A second problem is that only two of Arizona's eleven Environmental Services inspectors are bilingual in English and Spanish. Given that approximately 99 percent of Arizona's farmworkers are Spanish-speaking,229 the lack of bilingual inspectors raises serious doubts regarding the ability of Arizona to adequately ensure pesticide-use compliance and the commitment of the state to this mandate.
Field Sanitation Standards: Federal OSHA and OSHA-Approved State Plans and their Enforcement
In 1987, the federal Occupational Safety and Health Administration (OSHA) issued a Field Sanitation Standard. The Standard 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 predicted that implementation of this standard 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.230
Aside from enforcement problems, the primary weakness of the Field Sanitation Standard is that Congress annually limits its application to agricultural establishments that employ eleven or more people as hand laborers.231 Farms employing fewer than eleven hand laborers are exempt. As a result, hundreds of thousands of farmworkers, including juveniles, may not have access to basic sanitation and health requirements. Even worse, the limit of OSHA jurisdiction to farms with eleven or more workers is absolute, extending far beyond field sanitation-it applies even to cases where workers face unsafe working conditions or where a catastrophe or fatality has occurred. Whatever happens on a farm with ten or fewer employees, OSHA may not investigate.
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.
As of December 1999, twenty-one states had approved State Plans.232 Of these, only four-Alaska, Arizona, Oregon, and Washington-required farms with ten or fewer workers to comply with field sanitation standards.233 Arizona's state-plan jurisdiction extends to all farms with five or more workers. Some employers attempt to dodge the sanitation regulations by splitting up their workers into crews of four, each in a different field (thereby giving the appearance of no more than four workers), or by hiring their labor via farm labor contractors.234
Even when the standards do apply, violations are rampant. According to the General Accounting Office, violations were found in 69 percent of all federal field inspections conducted in 1990.235 Despite this high rate of violations, enforcement is minimal. The GAO reported in 1998 that "OSHA has devoted less than 3 percent of its inspections over the past 5 years to agriculture, even though agriculture is often considered to be one of the most hazardous industries."236
States with their own OSHA plans generally fare no better, and may have even lower rates of compliance, depending on their standards and the vigor with which inspections take place and violations are cited and fined. A 1990 study in North Carolina found that "only 4 percent of the hired farmworkers surveyed had access to drinking water, . . . handwashing and toilet facilities."237
In Arizona, the state most closely examined by Human Rights Watch, there is very little enforcement of field sanitation standards or other health and safety regulations. The Industrial Commission's Division of Occupational Safety and Health (hereinafter Arizona OSHA) has jurisdiction over all farm health and safety issues, not just field sanitation. The agency, however, does not make any farm inspections on its own initiative. "We don't do farm inspections unless we receive a complaint from an employee or a referral from another government agency," said Art Morelos, Compliance Supervisor for the Tucson office.238 Morelos noted that "I'm sure a lot [of farmworkers] get hurt that we never hear about."239
The Tucson office is responsible for seven southern Arizona counties, including Yuma County, where about 75 percent of Arizona farmwork takes place. The office averages only thirty to fifty farm inspections a year, almost all of them the result of referrals from farmworker advocates in other agencies, including legal aid workers.
There is general agreement that farmworkers rarely initiate complaints themselves. The primary reason, discussed earlier in this report, is fear of retribution. Farmworkers are simply too vulnerable; to complain is to risk their job. In addition to fear, farmworkers are unlikely to know that they have a right to clean and plentiful drinking water, toilet facilities, and a place to wash their hands. Morelos acknowledged both of these concerns. "They're afraid of losing their jobs; afraid to speak up because of retaliation. They don't know what their rights are."
Nor are they likely to learn what their rights are, as Arizona's state OSHA does not engage in farmworker education regarding minimum sanitation standards. Even if workers did know that their rights were being violated and wanted to complain, however, they would have yet another hurdle to cross-filing the complaint. Both state regulations and state-OSHA policy requires all complaints, including complaints from workers, to be submitted in writing.240 Nor is there a toll-free number that workers can call, whether to make a complaint, find out how to make a complaint, or ask for information. The vast majority of farmworkers, of course, live in rural areas, are very poor, and have minimal educational backgrounds. Many do not speak English. Given these conditions and circumstances, it is not surprising that worker complaints are rare.241
Several farmworker advocates reported that, when they do make referrals to state OSHA, the response is slow and ineffective. They also complained of a rigid insistence on receiving written information regarding violations, a requirement that the regulations themselves do not extend to referring agencies. One advocate said, "I call with a complaint, they tell me to fax it in. Fax it! I'm in the middle of nowhere! Do they think farmworkers are going to be able to fax in their complaints?"242
Arizona OSHA has shown little interest in establishing a presence outside of the two major metropolitan areas of Tucson and Phoenix. There is no office in Yuma, not even a seasonal office during the peak growing season. OSHA trips to remote areas-where much agricultural work takes place, and where, because of a lack of oversight and government intervention, abuses are most plentiful-are reportedly very rare.
Part of the problem appears to be due to understaffing. The Tucson office of Arizona OSHA, responsible for an area with approximately one million residents, has five inspectors. They have jurisdiction over all workplaces except mines and on federal installations and reservations. They are so understaffed that they do not investigate farm accidents unless there is a fatality or a catastrophe (three or more people hospitalized due to a single accident).243
When occupational violations are found and agricultural employers cited, it is usually the farm labor contractor alone who faces liability. "The growers got wise," said Art Morelos. "Because whoever pays the workers has to also pay the workers comp insurance, transportation insurance, deal with sanitation, worry about OSHA, etc."244 He also noted that farm labor contractors generally have fewer resources and are more difficult to collect fines from than are growers. Unlike the U.S. Department of Labor, Arizona OSHA is not yet pursuing the growers themselves via a theory of joint liability.
169 Frank Zamudio, Arizona Department of Agriculture Industrial Hygienist, during a Human Rights Watch interview, October 1, 1998, in reference to agricultural employers.
170 29 U.S.C. section 203(l).
171 These prohibitions apply to all legal aid offices receiving federal Legal Services Corporation funding. There is no private right of action for child labor violations. Prior to these restrictions (1996 for the ban on class-actions), however, legal aid offices could mount class action lawsuits regarding wage and hour violations.
172 U.S. General Accounting Office, "Child Labor in Agriculture: Characteristics and Legality of Work," Washington, DC: U.S. General Accounting Office, 1998; GAO/HEHS-98-112R, p. 2.
173 The FLSA allows for very limited exceptions to this, including work delivering newspapers, acting, and making evergreen wreaths.
174 Agriculture is the second most dangerous occupation after mining. Mine workers, however, must be at least eighteen years old.
175 National Research Council, Protecting Youth at Work, pp. 146-148.
176 Ibid., p. 21.
177 Ibid., p. 142.
178 Ibid., p. 147.
179 Ibid., p. 21.
180 Ibid., p. 147, citing United States Bureau of the Census.
181 Digest of Education Statistics, 1998 (http://nces.ed.gov/pubs99/digest98/ chapter2.html).
182 Human Rights Watch telephone interview with Dan Werner, Farmworker Legal Services of New York staff attorney, March 17, 2000.
183 National Center for Farmworker Health, "Who are America's Farmworkers?" http://www.ncfh.org/aboutfws/aboutfws.htm, accessed March 22, 1999, p. 2. The U.S. Bureau of Labor Statistics reported in 1998 that 44.9 percent of farm laborers are Latino. http://stats.bls.gov/pdf/cpsaatll.pdf. Based on our extensive research and consultation with national experts, Human Rights Watch considers this a gross underestimation.
184 H.R.2119. As of November 1999, the bill is still in the House Committee on Education and the Workforce, Subcommittee on Workforce Protections.
185 The federal government's authority to regulate commerce is rooted in Article I, Section 8 of the United States Constitution, which reads in its relevant part that "The Congress shall have Power . . . [t]o regulate Commerce . . . among the several States." Accordingly, this authority is restricted to interstate commerce.
186 Of the bill's fifty-eight cosponsors, only two-Tom Campbell (Republican from California) and John Porter (Republican from -Illinois)-are Republicans.
187 Human Rights Watch telephone interview, March 2, 1999.
188 United States General Accounting Office, "Hired Farmworkers: Health and Well-Being at Risk," Washington, D.C.: U.S. General Accounting Office, 1992; GAO/HRD-092-46, p. 22, citing an estimate by the National Child Labor Committee.
189 U.S. Department of Labor, "Compliance Highlights: 1998 Agricultural Activity Report, Wage and Hour Division," March 1999, p. 2.
190 Human Rights Watch telephone interview with Corlis Sellers, WHD National Child Labor Coordinator, September 22, 1999.
191 According to the GAO, there were 950 WHD enforcement officers in 1987. U.S. General Accounting Office, "Child Labor in Agriculture: Characteristics and Legality of Work," Washington, D.C.: U.S. General Accounting Office, 1998; GAO/HEHS-98-112R, p. 15.
192 According to the Bureau of Labor Statistics, as of October 1999 there were 139,662,000 workers in the United States civilian labor force. Bureau of Labor Statistics, http://stats.bls.gov:80/eag.table.html.http://stats.bls.gov:80/eag.table.html
193 Human Rights Watch telephone interview with Corlis Sellers, WHD National Child Labor Coordinator, September 22, 1999.
194 Human Rights Watch telephone interview with Corlis Sellers, WHD National Child Labor Coordinator, September 22, 1999.
195 Human Rights Watch telephone interview with Esther La Plante, WHD Farm Labor Specialist based in Phoenix, AZ, November 12, 1998.
197 U.S. Department of Labor, "Compliance Highlights: 1998 Agricultural Activity Report, Wage and Hour Division," March 1999, p. 2.
198 U.S. Department of Labor Wage and Hour Division, Phoenix District Memorandum: "Phoenix District Grape Survey," November 10, 1998.
199 U.S. General Accounting Office, "Child Labor in Agriculture: Characteristics and Legality of Work," Washington, D.C.: U.S. General Accounting Office, 1998; GAO/HEHS-98-112R, p. 12.
200 Human Rights Watch telephone interview with Darlene Adkins, Coordinator, National Consumers League Child Labor Coalition, January 25, 1999.
201 By way of comparison, consider the Department of Labor statistical summaries for child labor violations uncovered in fiscal years 1989 through 1992: 1989: 24,074 in nonagricultural work; 299 in agriculture; 1990: 43,785 in nonagricultural work, 795 in agriculture; 1991: 28,390 in nonagricultural work, 334 in agriculture; 1992: 21,224 in nonagricultural work, 163 in agriculture.
202 United States General Accounting Office, "Hired Farmworkers: Health and Well-Being at Risk," Washington, D.C.: U.S. General Accounting Office, 1992; GAO/HRD-092-46, p. 22.
203 Human Rights Watch telephone interview with Corlis Sellers, WHD National Child Labor Coordinator, September 22, 1999.
205 Human Rights Watch telephone interview with Esther La Plante, WHD Farm Labor Specialist, November 17, 1999.
207 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 therefrom any oppressive child labor has been employed." 29 U.S.C. section 212(a).
208 Human Rights Watch telephone interview with Corlis Sellers, WHD National Child Labor Coordinator, September 22, 1999.
209 U.S. Department of Labor Program Highlights, "Joint Employment and Independent Contractors Under the Migrant and Seasonal Agricultural Worker Protection Act," Fact Sheet ESA no. 97-31, pp. 2-3.
210 The Migrant and Seasonal Agricultural Worker Protection Act (MSPA) requires agricultural employers to inform workers in writing of the terms of their employment, post information about worker rights, pay all wages owed when due and provide an itemized statement, and make and keep payroll records. 29 U.S.C. section 1801-1872.
211 See, for example, Goldstein, Linder, Norton, and Ruckelshaus, "Enforcing Fair Labor Standards in the Modern American Sweatshop: Rediscovering the Statutory Definition of Employment," UCLA Law Review 46 (1999): 983.
212 29 U.S.C. section 203(g).
213 Child Labor Coalition, "1999 Child Labor State Survey," National Consumers League, Washington, D.C., 1999, pp. 6-7.
215 Human Rights Watch telephone interview with Corlis Sellers, WHD National Child Labor Coordinator, September 22, 1999.
217 40 C.F.R. (Code of Federal Regulations) section 170.1. See 40 C.F.R. section 170 and following sections for the entire Worker Protection Standard.
218 See "Restricted-entry statements," 40 C.F.R. section 156.208.
219 40 C.F.R. section 156.208(c)(2)(i)-(iii).
220 Ibid., section 156.208(c)(2)(i).
221 Human Rights Watch telephone interview with Kevin Keaney, EPA Branch Chief for Certification and Worker Protection, October 19, 1999. According to Keaney, in a few states it is the state public health or environmental agency that enforces the EPA regulations, rather than the department of agriculture. It is up to the individual state to decide its enforcement strategy.
224 Representative Henry Waxman commissioned a study by the GAO of the protection of children in agriculture. Preliminary results of the inquiry are found in: U.S. General Accounting Office, "Child Labor in Agriculture: Characteristics and Legality of Work," Washington, DC: U.S. General Accounting Office, 1998; GAO/HEHS-98-112R. The GAO's final report is due in early 2000.
225 In May 1999, the following organizations sent a public letter to the EPA urging that pesticides be tested for their toxicity to children's developing nervous systems, and expressing their concern over an EPA decision to remove a Congressionally-mandated "10X" (meaning requiring a margin of safety for children ten times that required for adults) safety standard designed to protect children: Natural Resources Defense Council, Learning Disabilities Association of America, Consumers Union, Physicians for Social Responsibility, Science and Environmental Health Network, and the U.S. Public Interest Research Group.
226 Arizona Department of Agriculture homepage, http://agriculture.state.az.us/, updated November 22, 1999.
227 Human Rights Watch was not interviewing this inspector and his name is not available. The comment was made on October 1, 1998.
228 Human Rights Watch telephone interview with Kevin Keaney, EPA Branch Chief for Certification and Worker Protection, October 19, 1999.
229 Estimate provided by Gary Restaino, former staff attorney with Community Legal Services Farmworker Program, in a telephone interview with Human Rights Watch, April 26, 1999.
230 U.S. Department of Labor, Occupational Safety and Health Administration, "OSHA's Field Sanitation Standard," Fact Sheet No. OSHA 92-25, p. 2.
231 As noted, Congress exempts small farms from enforcement of OSHA standards by attaching riders to annual appropriation bills; see, e.g., U.S. Departments of Labor, Health and Human Services, and Education, and Related Agencies Appropriations Act, 1998, HR 2264, 105th Congress. National Research Council, Protecting Youth at Work, p. 141.
232 The states are Alaska, Arizona, California, Hawai'i, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon, South Carolina, Tennessee, Utah, Vermont, Virginia, Washington, and Wyoming. Puerto Rico and the Virgin Islands also have approved plans, and Connecticut and New York have plans that cover public sector employment only. U.S. Department of Labor, Occupational Safety and Health Administration, "State Occupational Safety and Health Plans," http://www.osha~slc.gov/.
233 United States General Accounting Office, "Hired Farmworkers: Health and Well-Being at Risk," Washington, DC: U.S. General Accounting Office, 1992; GAO/HRD-092-46, p. 20.
234 Human Rights Watch interview with Art Morelos, Arizona Industrial Commission Compliance Supervisor, Tucson, Arizona, October 15, 1998.
235 United States General Accounting Office, "Hired Farmworkers: Health and Well-Being at Risk," Washington, DC: U.S. General Accounting Office, 1992; GAO/HRD-092-46, p. 20.
236 United States General Accounting Office, "Child Labor in Agriculture: Characteristics and Legality of Work," Washington, D.C.: U.S. General Accounting Office, 1998; GAO/HEHS-98-112R, p. 15.
237 General Accounting Office, "Hired Farmworkers: Health and Well-Being at Risk," p. 20.., citing Maureen Sweeney and Stephen Ciesieski, Where Work is Hazardous to Your Health (Raleigh, North Carolina: Farmworkers Legal Services of North Carolina, Apr. 1990).
238 Human Rights Watch interview, October 15, 1998.
240 "An employee . . . who believes that a violation of a safety or health standard or regulation exists that threatens physical harm or that an imminent danger exists may request an investigation by giving notice to the director or his authorized representative of such violation or danger. Any such notice shall be reduced to writing . . ." 23 Arizona Revised Statutes section 408(F)
241 Compliance Supervisor Art Morelos estimated that 95 to 99 percent of all agriculture-related complaints are referrals from other agencies rather than direct complaints from workers. Human Rights Watch interview, September 20, 1999.
242 Human Rights Watch interview, September 30, 1998. The advocate interviewed preferred to remain unnamed.
243 Human Rights Watch interview with Art Morelos, Arizona Industrial Commission Compliance Supervisor, Tucson, Arizona, October 15, 1998.
244 Human Rights Watch interview with Art Morelos, September 20, 1999.