Are changes on the way for family farms employing young people? For the first time since the 1970s, the U.S. Department of Labor is proposing to amend the Fair Labor Standards Act, or FLSA, in an attempt to increase safety requirements for young workers employed in agriculture.
According to the U.S. Secretary of Labor Hilda L. Solis, “Children employed in agriculture are some of the most vulnerable workers in America” and the proposed rules are an attempt to “increase parity between agricultural and nonagricultural child labor provisions.” Traditionally, the FLSA has allowed more flexibility with respect to the employment of hired farm workers under the age of 16.
It is important to note that these proposed rules only apply to hired workers. The current exemption for youth workers employed on farms owned or operated by their parents still applies. According to DOL, the parental exemption exists because parents are more attuned to protect their own children and safeguard them from hazardous situations.
Significant changes proposed
DOL is proposing rules prohibiting hired workers under the age of 16 from working with certain animals, handling pesticides, working in timber operations, and working in or around manure pits and storage bins.
Further, the new rules would prohibit farm workers under the age of 16 from participation in the cultivation, harvesting and curing of tobacco, and from using electronic devices while operating power-driven equipment.
The prohibition against use of electronic devices includes talking, listening or participating in an electronic conversation (i.e., sending and receiving text messages, accessing the Internet, or entering data into a GPS system).
The department is also proposing a new non-agricultural hazardous occupation order that would prevent any child under the age of 18 from working in grain elevators, feed lots, stockyards, and livestock exchanges and auctions, unless their parent owns or operates the business.
There are certain farm occupations DOL deems particularly hazardous for youth under age 16. In 1966, the FLSA was amended to authorize the secretary of labor to create Agricultural Hazardous Occupation Orders, or Ag HO, that would apply to hired farmworkers. Here’s a list of the proposed orders:
• Student learners. The DOL is proposing to eliminate the exemption for 14- to 15-year-old hired farmworkers who have received certification from approved Extension Service farm safety programs and some vocational ag certification training. DOL is proposing to retain the student learner exemption only if the 14- to 15-year-old participates in an ongoing vocational ag ed training program (at least 90 hours systematic school instruction completed at or above the eighth-grade level).
• Operation of ag tractors. DOL is proposing to prohibit the operation and assisting in operation of ag tractors (with certain exemptions for student learners). The prohibition would include tending, setting up, adjusting, moving, cleaning, oiling or riding as a passenger or helper. Student learners would have to complete a classroom tractor safety course, and the tractor must comply with OSHA standards.
• Operating non-ag tractors and power driven equipment. The proposal would prohibit hired youth farmworkers under 16 from operating and assisting in operation of power-driven equipment, including machines, equipment and vehicles operated by any power source other than human hand or foot power (i.e., lawn and garden tractors and power-driven milking equipment). There is a student-learner exemption proposed with this Ag HO.
• Working with or around animals. Proposal would prohibit youth workers from working around breeding stock, including sows with young pigs, cows with a newborn calf, etc. It seems this would preclude youth from participating in breeding, branding, castrating, herding, vaccinating, etc.
The DOL is also proposing Ag HOs prohibiting youth from working in construction, on scaffolding and roofs, along with handling ag chemicals, and transferring or applying anhydrous ammonia.
What’s next, you ask?
Significant questions and issues arise with respect to changes to the youth farm labor rules. The proposed rules do not address the question of whether children of parents operating farms owned by a legal entity can qualify for the parental exemption. Technically, the children would be employees of the entity, not the parent.
DOL has asked for public comment on that issue. Legal authority might suggest that courts use a “look-through” approach as applied to entities. If a majority of the interests in the entity are held by the parents of children-employees, the exemption might still apply. However, many family farm entities have several shareholders or members, and the younger members may not have a majority interest.
Of course, these are proposed rules. The comment period on the proposed rules ended Nov. 1. It remains to be seen what final rules, if any, will be implemented.
Be sure to watch for updates on this issue from Roger McEowen, professor in agricultural law at Iowa State University, at www.calt.iastate.edu.
Herbold-Swalwell is an attorney with the firm Beving, Swanson and Forrest, PC, in Des Moines. She can be reached at email@example.com..
This article published in the November, 2011 edition of WALLACES FARMER.