Proposed changes in federal safety rules would significantly restrict the type of farm work young people under the age of 16 can do and which farms they can work on. The U.S. Department of Labor is proposing these updates to bring parity between current rules for young workers in agricultural jobs and the more stringent rules that apply to those employed in nonagricultural workplaces.

Since the current federal agricultural child labor rules were issued more than 40 years ago, the U.S. Department of Labor and other farm safety groups believe it is time for updates. The agency relied on recommendations from the National Institute for Occupational Safety and Health as it considered the issues involved and came up with these proposed revisions. The proposed rules would continue to exempt children who work on farms owned by their parents.

Send in your comments on proposed changes by November 1

The public is invited to provide comments on this important proposal. Comments must be received by the government agency by November 1, 2011.

The changes would be the first update of the Agricultural Child Labor Hazardous Occupations Orders under the Fair Labor Standards Act since 1970. "These proposed child labor revisions for agriculture have been a long time in coming to ensure that when children work on farms, they are safe," says Nancy Leppink, deputy administrator for the U.S. Department of Labor.

The document describing the proposed agricultural labor changes is at www.gpo.gov/fdsys/pkg/FR-2011-09-02/pdf/2011-21924.pdf. Identify all comments submitted in electronic form by the RIN docket number (1235-AA06). You should transmit your comments electronically via the Federal eRulemaking Portal at www.regulations.gov or submit them by mail early to ensure timely receipt by November 1.

To help you understand what these proposed changes are about and how they could affect your farming operation or children, the following information and observations are provided by Erin Herbold-Swalwell, an attorney employed by the law firm of Beving, Swanson & Forrest, P.C., in Des Moines, Iowa. She can be reached at [email protected]. Herbold-Swalwell writes a column on ag law issues each month in Wallaces Farmer magazine. Before joining the law firm, she was staff attorney for the Center for Agricultural Law and Taxation at Iowa State University in Ames.

Rules may change for young people working on farms

By ERIN HERBOLD-SWALWELL

Are changes on the way for family farms employing young people? For the first time since the 1970's, the U.S. Department of Labor (DOL) is proposing to amend the Fair Labor Standards Act (FLSA) in an attempt to increase safety requirements for young workers employed in agriculture.

According to the U.S. Secretary of Labor, "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 the DOL, the parental exemption exists because parents are more attuned to protect their own children and safeguard them from hazardous situations.

Significant changes proposed in child labor laws related to agriculture

The 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 receives 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 the DOL deems particularly hazardous for youth under the age of 16. In 1966, the FLSA was amended to authorize the Secretary of Labor to create Agricultural Hazardous Occupation Orders (Ag HO) that would apply to hired farm workers. Here's a list of the proposed orders:

Student learners. The DOL is proposing to eliminate the exemption for 14-15 year-old hired farm workers who have received certification from approved Extension Service farm safety programs and some vocational ag certification training. The DOL is proposing to retain the student learner exemption only if the 14-15 year-old participates in an ongoing vocational ag ed training program (at least 90 hours systematic school instruction completed at or above 8^th Grade level).

Operation of ag tractors: The 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 and the tractor must comply with OSHA standards.

Operating non-ag tractors and power driven equipment: The proposal would prohibit hired youth farm workers 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 along 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 HO's prohibiting working in construction, on scaffolding and roofs, handling ag chemicals, and transferring or applying anhydrous ammonia.

What's next, you ask?  Will these rules be implemented as proposed?

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.

The 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 will end on November 1. So get your comments sent in now, if you care to comment. It remains to be seen what final rules, if any, will be implemented. Be sure to watch for ISU professor Roger McEowen's updates on this issue at www.calt.iastate.edu.

Herbold-Swalwell is an attorney with the firm Beving, Swanson & Forrest, P.C., in Des Moines, Iowa. She can be reached at [email protected].