Solicitud directa (CEACR) - Adopción: 2002, Publicación: 91ª reunión CIT (2003)

Articles 1, 3(d) and 4 of the Convention

  2002 NIOSH Report: Areas requiring further research

1. The Committee notes that, in its May 2002 report on Recommendations to the U.S. Department of Labor for Changes to Hazardous Orders, the National Institute for Occupational Safety and Health (NIOSH) recommended both revised and new hazardous occupation orders under the Fair Labor Standards Act (FLSA), and it also referred to "other serious and potentially fatal occupational safety and health hazards to young workers under age 18 which are of considerable concern, but for which there is insufficient documentation to support recommendations for new HOs (hazardous orders) at this time". Based on its review of available data and scientific information, the NIOSH concluded that these areas "merit additional research prior to future rule-making. Research into risk factors for work-related homicide - a leading cause of young worker injury death - is one such research area. Further research is needed to characterize youth worker exposures to health hazards, such as chemical substances, biologic agents, and repetitive motion, and to determine if such exposures result in negative health outcomes in later years. Research is needed on the effectiveness of youth training programmes to help ensure exemptions for apprentice, and student-learner programmes are effective in facilitating a safe training environment. Finally, research on employer best practices, and knowledge and attitudes about HOs among employers, parents, youth, and other stakeholders could be used to increase effectiveness of outreach and educational campaigns."

2. The Committee hopes that the Government will supply detailed information about steps taken to conduct or to finance new research in those areas of risk identified by the NIOSH where insufficient data currently exist to guide future rule-making.

3. The NIOSH report also addresses the question of child labour in occupations involving the handling or applying of pesticides. One of its recommendations to the Department of Labour (DOL) is to revise and expand the scope of Hazardous Occupation Order 9, issued under the FLSA, to make the prohibition consistent with the level of protection from acute and chronic pesticide exposures afforded by the Worker Protection Standard (40 C.F.R. Part 170). The Worker Protection Standard is a regulation issued by the Environmental Protection Agency (EPA) pursuant to the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), (7 U.S.C. §§ 136 et seq.)

4. The report discusses the special risks of pesticide exposure to young workers and recognizes the need for further research in this area. It states:

Health effects of pesticides have been largely unstudied with respect to young workers. However, based on an extensive review of the literature and studies on immature animals, the National Research Council concluded that the toxicity of pesticides can potentially be influenced by the immaturity of biochemical and physiological functions and body composition of developing children and adolescents […]. The U.S. EPA. recently cancelled many uses of three highly toxic pesticides […]. This determination is required under the Food Quality Protection Act of 1998, but has been done for only a few pesticides to which children and adolescents are exposed and never to determine unreasonable risks to farm workers under age 18 […]. Many pesticides in current and past use have not been tested for all endpoints of concern, and pesticide studies conducted to date are designed primarily to assess pesticide toxicity in sexually mature animals, not developing children and adolescents.

5. The Committee hopes that the Government will supply detailed information about any studies, reviews, or analyses conducted to systematically determine unreasonable risks to farm workers under age 18 of exposure to pesticides, and that it will report on any policies EPA has adopted or contemplates adopting to determine in a more comprehensive way the need to cancel the use of toxic pesticides because they pose an unreasonable risk to children. The Committee also requests, more generally, that the Government report on, and to supply copies of, any recent studies on the health effects of pesticides with respect to young workers, and to further supply information about the results of any tests or pesticide studies designed to assess pesticide toxicity in developing children and adolescents.

  State child labour laws

6. The Committee notes the information on state child labour laws contained in three Government reports: the November 2000 Report of the Youth Labor Force (revised) of the U.S. DOL, the August 1998 report of the U.S. General Accounting Office (GAO): Child labour in agriculture: Changes needed to better protect health and educational opportunities (GAO/HEHS-98-193), and the May 2002 report of the NIOSH on Recommendations to the U.S. Department of Labor for Changes to Hazardous Orders.

7. These reports indicate that every state has a child labour law, usually enforced by a state labour department. These laws, which often share extensive overlap in coverage with the FLSA, vary in the level of protection afforded young workers for both agricultural and non-agricultural employment. Under the state law of a given state, there may be some provisions that are more or less restrictive than provisions of the federal law. The FLSA requires employers to comply with the higher standard, but only where both are applicable (29 U.S.C. § 218(a)).

8. The NIOSH report states:

Under current law, states are not required to have child labor laws that are at least as protective as federal law (unlike the Occupational Safety and Health Act which requires state laws to be at least as protective as federal law). There are numerous cases in which the federal HOs [hazardous orders] cannot be applied because the jurisdictional thresholds of the Act are not met, and state law does not cover the particular hazards addressed in the federal HOs. Many states have not incorporated all the federal HOs, and in some states child labor regulations are less protective than the federal HOs.

9. According to these reports, federal law is generally more stringent than the state laws with respect to prohibiting work in occupations involving physical hazards and assessing penalties for violations. This is true for both agricultural and non-agricultural employment. Much like the FLSA, state laws generally provide less protection to children working in agriculture than to children working in other industries. Sixteen States (Alabama, Georgia, Kansas, Kentucky, Louisiana, Maryland, Mississippi, Montana, Nebraska, North Carolina, Oklahoma, Rhode Island, Tennessee, Texas, West Virginia, Wyoming) exempt agricultural employment entirely or do not list it among the covered sectors. More than half the 34 states that do have protections for children working in agriculture allow them to work more hours per day or per week than children in other industries. Eight States (New Jersey, New York, Ohio, South Carolina, Vermont, Virginia, Washington, Wisconsin) place restrictions on agricultural employment similar to federal standards. Eight states have, by law, restricted daily or weekly hours of work, or both, for minors under the age of 18 employed in agriculture. Twelve states impose a higher age standard than the federal provisions and prohibit 16- and 17-year-olds from working in certain hazardous occupations; some restrictions may apply to agriculture. In some cases, states have specifically adopted standards for agriculture that are more stringent than those of the Federal government. For example, Florida prohibits persons under the age of 18 from operating or assisting in the operation of tractors of a certain size, earth-moving equipment, and other related machinery. Oregon precludes anyone under 18 years old from operating power-driven farm equipment of any kind.

10. The Committee hopes that the legislation and practice at the level of the states in relation to child labour in hazardous employment will be reviewed in the light of the NIOSH report and that the Government will transmit details on the action taken. The Committee further requests that the Government supply copies of the texts of the relevant state laws and regulations.

Articles 5 and 7(1) of the Convention

  Fair Labor Standards Act

11. In its initial report, the Government indicated that the FLSA authorizes the Secretary of Labor or her designated representative to use a number of tools to enforce its child labour provisions, including: conducting investigations and inspections (29 U.S.C. § 212(b)); seeking injunctions in federal court (29 U.S.C. § 217); assessing civil money penalties in administrative actions (29 U.S.C. § 216(e)); pursuing criminal penalties for wilful violations (29 U.S.C. § 216(a)); and using the "hot goods" provision of the FLSA to stop the shipment in interstate commerce of goods produced in violation of the Act (29 U.S.C. § 212(a)). Section 12(a) of the FLSA bars shipment in commerce of any goods that have been produced on a farm or other U.S. establishment where "oppressive child labor" was employed within 30 days prior to the removal of the goods from that establishment. Goods produced in such establishments cannot be shipped in commerce even if oppressive child labour was not used to produce those particular goods. The Government indicates that the DOL’s Wage and Hour Division (WHD), a unit of the Employment Standards Administration, is the designated enforcement agency for the child labour provisions of the FLSA. The Government indicated that, as of the time of filing of its report, the DOL had filed 58 child labour administrative cases in fiscal year 2001 and had filed 78 in fiscal year 2000. The Government also indicated that WHD has settled many cases with employers prior to the initiation of prosecution.

12. The Committee hopes that the Government will supply further specific, updated information about how it has used the enforcement tools it describes in its report for the enforcement of the orders on hazardous occupations for children, which the Secretary of Labor has, by regulation, issued under the FLSA. The Committee seeks this information both as to the orders pertaining to occupations generally, listed under Subpart E of the regulations, and to those relating to employment in agriculture, listed in Subpart E-1 of the regulations.

13. The Committee has noted the September 2002 report to Congress of the U.S. GAO entitled Child labor: Labor can strengthen its efforts to protect children who work (GAO-02-880). It notes from Appendix IV that, in comments supplied to the GAO on 11 September 2002 on the draft of its report, the DOL stated that in fiscal year 2000, the WHD found child labour violations in 1,886 investigations and assessed US$6.2 million in child labour civil money penalties. In fiscal year 2001, WHD found child labour violations in 2,103 investigations and assessed US$6.7 million in child labour civil money penalties, an increase of 8 per cent. The Committee requests that the Government supply information about how many of these investigations and penalties assessed involved violations of the DOL’s hazardous occupation orders. The Committee also requests the Government to address comment 6 of the GAO, made in Appendix IV of its September 2002 report in reply to the DOL’s comments on the GAO draft report:

6. We continue to believe that the trends in the number of child labor violations found and the amount of penalties assessed - including the fact that the numbers have declined significantly since 1990 - are not valid indicators of WHD’s commitment to child labor compliance, nor are they evidence of the success of its efforts to ensure compliance with the child labor provisions of FLSA. As noted in our report, because we do not know what factors led to the changes in the number of violations, it is unclear whether the increase in the number of violations found by WHD in fiscal year 2002 compared to fiscal year 2001 indicates a growing problem with child labor, improvements in WHD’s efforts to identify violations, or other factors.

  Occupational Safety and Health Act

14. In its initial report, the Government notes that under the "General Duty Clause" of the Occupational Safety and Health Act (OSH Act), an employer subject to the Act is required to provide to all his or her employees, including those under the age of 18, a workplace "free from recognized hazards that are causing or likely to cause death or serious physical harm" (29 U.S.C. § 654(a)). The Government indicates that the OSH Act is administered by the Occupational Safety and Health Administration (OSHA), which carries out its functions by setting minimum safety and health standards for all employers and enforcing those standards through a comprehensive on-site inspection programme (29 U.S.C. § 655).

15. The Government also refers to a 1990 Memorandum of Understanding, under which OSHA works in cooperation and coordination with the WHD to enforce the child labour provisions of the FLSA, and to measures OSHA has taken, including amending its penalty policy to account for vulnerable young workers and requiring on-site inspections for complaints of exposure of young workers to serious occupational hazards. The Government indicates that OSHA has included larger agricultural establishments in its Data Initiative, the objective of which is to assist in identifying where injuries and illnesses among young agricultural workers may be occurring.

16. The Committee requests the Government to supply detailed, updated information concerning these measures, policies and initiatives, including any and all progress reports evaluating their implementation and their effectiveness in relation to the efforts of OSHA to prohibit, prevent and eliminate child labour in hazardous occupations.

  Federal Insecticide, Fungicide and Rodenticide Act

17. The Committee notes the Government’s indication that the EPA, pursuant to the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), (7 U.S.C. §§ 136 et seq.), has issued a Worker Protection Standard, which is intended to reduce the risks of illness or injury resulting from occupational exposures to pesticides (40 C.F.R. Part 170).

18. The Committee notes the March 2000 report of the GAO, Pesticides: Improvements needed to ensure the safety of farmworkers and their children (GAO/RCED-00-40). According to the GAO report, the EPA implemented the Worker Protection Standard in recognition of the potential for pesticides to cause a variety of illnesses. According to the EPA, one of the most important protections afforded by the Standard are the time intervals - the duration between the time pesticides are applied and when workers may enter treated areas (called entry intervals). According to the GAO report, EPA officials told the GAO investigators that these entry intervals were designed for adults and children at least 12 years old who do farm work, but were not designed for children younger than 12 years of age. Furthermore, the EPA had little assurance that the protections called for in the Worker Protection Standard were actually being provided to farmworkers generally or to children who work in agriculture. The GAO found that EPA regions have been inconsistent in setting goals for the number of worker protection inspections states should conduct, in defining what constitutes a worker protection inspection, and in the extent to which they oversee and monitor the states’ implementation and enforcement of the Worker Protection Standard. The GAO report includes several recommendations addressed to the EPA, aimed at a better understanding of the overall risks that pesticides pose for farmworkers and their families as well as for the general public.

19. The Committee requests that the Government supply information that specifically addresses how the EPA has implemented, or plans to implement, the detailed steps laid out in the GAO recommendations. The Government is requested to identify specific actions the EPA has taken, or plans to take, directly related to the adequacy of the Worker Protection Standard for children who work in agriculture or who are otherwise present in pesticide-treated fields, and that it supply documentation relating to findings on the adequacy of the Standard’s entry intervals. The Committee requests that the Government report on steps taken by the EPA to work with the National Institute for Occupational Safety and Health and the National Center for Environmental Health to expand and improve data collection and reporting of pesticide-related illnesses. The Government is also requested to comment on the problems identified in the GAO report, and report on measures it can take to address those problems.

  Child labour in agriculture: The 1998 Report of the
  General Accounting Office

20. The Committee takes note of the August 1998 report to Congress of the U.S. GAO, entitled Child Labor in Agriculture: Changes needed to better protect health and educational opportunities (GAO/HEHS-98-193). In Chapter 4 of that report, the GAO summarized a few of the problem areas it identified with respect to the Government’s enforcement of child labour laws, particularly in agricultural employment:

Weaknesses in current enforcement and data collection procedures limit enforcement agencies’ ability to detect all violations of illegal child labour in agriculture. The characteristics of the agricultural industry and its workforce pose several challenges to enforcement agencies for effectively detecting violations of child labour laws. However, resources devoted to agriculture by federal and selected state enforcement agencies have declined in the past 5 years as have the number of cases of detected agricultural child labour violations. In addition, WHD [Wage and Hour Division] and the states lack procedures necessary for detecting illegal child labour in agriculture, and enforcement agencies are not following established coordination procedures for facilitating detection of illegal child labour in agriculture. Moreover, enforcement databases lack information on children’s involvement in many violations, and data limitations may affect WHD’s ability to assess its progress in reducing illegal child labor in agriculture.

21. The Committee notes that in Chapter 4 of the GAO report, a number of specific points and problems in regard to enforcement were identified, including the following.

-  The number of recorded inspections in agriculture by WHD, OSHA, EPA, and the states has generally declined in recent years.

-  OSHA has devoted less than 3 per cent of its inspections over the past five years to agriculture, even though agriculture is often considered to be one of the most hazardous industries.

-  OSHA and EPA have devoted declining resources to agriculture.

-  Recently, the Secretary of Labor said that it was difficult to know whether the decline in the number of recorded child labour violations was due to WHD’s reduced enforcement activity or a reflection of actual conditions.

-  No EPA data are available on the extent of resources devoted solely to the use provision of the Worker Protection Standard - the provision protecting farmworkers from occupational pesticide exposure.

-  According to WHD officials, if the FLSA’s non-agricultural protections for child labour were applied to agriculture, the number of violations found would increase.

-  According to WHD officials, the use of the FLSA’s "hot goods" provision, which involves a request for a temporary restraining order that prohibits a grower from selling goods, has been difficult to apply because of crops’ time-sensitive nature.

-  A general lack of communication and exchange of information exists among WHD and OSHA, EPA and selected state enforcement agencies.

-  Inspections may not be conducted where and when children are most likely to be working.

-  WHD is the only federal enforcement agency required to collect any age information on individuals involved in violations but only does so when inspectors believe a potential child labour violation may exist.

-  Although WHD found over 350 minimum-wage violations for agricultural employers in fiscal year 1997, WHD has no data on the number of citations, if any, issued for minimum-wage violations that involved children.

-  OSHA found over 175 violations of employers not providing hired farmworkers adequate housing conditions, but the extent to which the violations involve children under age 18 is unknown.

-  EPA rarely collects specific information on the type of violations under the use provision of the Worker Protection Standard, although state agencies may collect such data; children’s involvement in these violations, however, is not captured.

-  Despite the amount of data collected by WHD, it has been unable to determine which child labour violations resulted in civil monetary penalties. According to WHD officials, its financial database (which tracks the civil monetary penalties assessed on employers for violations of FLSA and other laws) is not compatible with its enforcement database.

-  This inability to compare and disaggregate types of violations with penalties is related to an issue that surfaced in 1997 - that agricultural employers were being assessed lower penalties than employers in other industries for similar child labour violations.

-  The Department of Labor established the reduction of illegal child labour in agriculture as a key enforcement priority. The Secretary established this priority, which is indicated by the "Salad Bowl" enforcement initiative and by DOL’s requested budget increase for fiscal year 1999 to enhance enforcement in agriculture.

-  In that respect, DOL already plans to increase its allocation of enforcement resources to agriculture and child labour; improved guidance to inspectors and emphasis on coordination would ensure more efficient use of those resources.

22. The Committee notes that at the conclusion of the report, the GAO made several recommendations "to improve [the Department of] Labor’s detection and reporting of illegal child labour in agriculture". In particular, it recommended that the Secretary of Labor direct the Assistant Secretary of Employment Standards to take the following actions:

-  issue national enforcement procedures specifying the actions WHD inspectors should take during agricultural inspections when documentation for verifying a child’s age is missing or potentially fraudulent or when existing documentation does not reflect a child’s possible employment;

-  take steps to ensure that procedures specified in the existing agreements among WHD and other federal and state agencies - especially regarding referrals to and from other agencies, joint inspections, and exchange of information - are being followed and, as required in some agreements, are being recorded and tracked;

-  develop a method for identifying the number of record-keeping violations resulting from employers not having children’s ages on file as required by FLSA; and

-  test the feasibility of collecting data on the number of minimum wage and other labour law violations that involve individuals under 18.

23. The GAO provided copies of its draft report to the Departments of Labor and Education for comment. In its response, the DOL concurred with the intent of the GAO’s recommendation to issue national enforcement guidance specifying the actions WHD inspectors should take during agricultural inspections to verify a child’s age or employment status. The GAO states:

Labor has, in fact, provided additional guidance on this matter on the regional level in at least two regions, and the Department said it will determine if additional guidance is needed. We believe this recently issued guidance includes the additional procedures necessary to better detect illegal child labor in agriculture. At this time, however, the guidance has only been distributed to particular WHD local offices. Although this represents a positive first step toward implementing our recommendation, we still believe that this guidance needs to be issued to all WHD inspectors so they can systematically and consistently take these actions to adequately detect illegal child labor in agriculture.

24. The DOL also concurred with the GAO recommendation aimed at ensuring that coordination procedures specified in existing agreements with federal and state agencies are followed, recorded and tracked. It indicated that WHD does have specific procedures for responding to and issuing case referrals and is now streamlining this process. As the GAO reported, however, "whether these procedures are followed is not always evident. Ideally, in streamlining these procedures and implementing this recommendation, WHD will focus on documenting adherence to these procedures to preclude the communication problems we detected among WHD and other agencies".

25. Regarding the recommendations to develop a method for identifying the number of FLSA child labour record-keeping violations and to test the feasibility of collecting data on children’s involvement in other violations, the DOL acknowledged that such data may be beneficial but identified cost and the practicality of collecting such information as major issues requiring consideration. In response, the GAO stated:

We agree that these are important issues, but given the Results Act [the Government Performance and Results Act of 1993, under which major federal agencies must establish program goals and measure their achievement of those goals] environment that seeks to encourage data-driven measurable goals and objectives, the emphasis WHD has placed on detecting illegal agricultural child labor, and WHD’s efforts to revise its databases to better reflect enforcement activities and outcomes, we still believe that collecting this information - even on a limited basis - would enhance the agency’s efforts to protect children from exploitation in the work place. In addition, the lack of data contributes to the general lack of information about the nature, magnitude, and dynamics of illegal child labor in the United States. Only WHD, as an enforcement agency tasked with protecting children, can collect this kind of data. Although NAWS [National Agricultural Workers Survey] may be useful for understanding some aspects of the child labor problem, its self-reporting nature and sampling limitations make it less appropriate.

26. The Committee requests that the Government supply detailed information that addresses the points and problems the GAO raised in its report, particularly with regard to the problems of enforcement of child labour laws in hazardous agricultural employment identified in Chapter 4. The Committee requests that the Government supply complete and updated reports, evaluations and other documentation concerning the progress the DOL has made in the adoption and implementation of the recommendations in the report with which the DOL concurred. These include the issuance of guidance to all WHD inspectors; measures to ensure that coordination procedures specified in existing agreements with federal and state agencies are followed, recorded and tracked; documenting the adherence to these procedures to preclude the communication problems detected among WHD and other agencies; and developing a method for identifying the number of FLSA child labour record-keeping violations and testing the feasibility of collecting data on children’s involvement in other violations. The Committee requests that the Government report on measures taken to ensure that sufficient resources are allocated to meet the cost of efforts by the DOL to collect data and revise its databases that are undertaken to better reflect enforcement activities and outcomes.

  Strengthening protection of child workers: The 2002 report of the
  General Accounting Office

27. The Committee refers to the September 2002 report to Congress of the U.S. GAO, entitled Child Labor: Labor can strengthen its efforts to protect children who work (GAO-02-880). The report is an update of information from its 1991 reports on child labour. It provides information on: (1) how the number and characteristics of working children in the United States have changed over the past decade; (2) whether the number and characteristics of work-related injuries to children have changed over this same time period; and (3) how well the DOL enforces the child labour provisions of FLSA. To obtain this information, the GAO analysed data on the characteristics of, and injuries to, children obtained from DOL’s Bureau of Labor Statistics (BLS) and injury data from the Department of Health and Human Services’ NIOSH; reviewed the child labour provisions of FLSA and its implementing regulations, agency documents, information from the DOL investigations database, and individual case files; interviewed DOL officials in Washington, D.C., and 11 field offices (5 regions and 6 district offices), officials from NIOSH, and other experts on child labour; and developed estimates of the number of children who are employed illegally by comparing BLS data on working children to the child labour provisions of FLSA.

28. The work was conducted from September 2001 to August 2002 in accordance with generally accepted government auditing standards. In its report, the GAO has made recommendations to the Secretary of Labor "aimed at helping the agency evaluate the effect of its child labour compliance efforts and ensure that resources are used more effectively, including developing goals for improving compliance in industries in which children face the greatest risk of being injured or killed; measures to use in assessing its success in meeting goals; using existing data to better plan compliance efforts and assess success in meeting goals; and providing additional guidance and training to staff".

29. The Committee notes the GAO’s finding that the DOL’s WHD has not developed adequate methods of measuring the success of all of its child labour compliance efforts:

Over the decade, WHD’s measures of success have generally consisted of counting the number of its child labor compliance activities. For example, WHD measured the success of "Operation Child Watch" in the early 1990s by citing the large number of violations and penalties produced. More recently, WHD headquarters officials told us they look at trends in the number of child labor violations found each year, and noted that the numbers have dropped dramatically since the early 1990s. It is not clear, however, what factors led to the decrease in the number of violations. […] It could have resulted from an increased rate of compliance among employers, the decrease in the number of child labor investigations conducted by WHD, or other factors. For example, since "Operation Child Watch", the number of investigator hours devoted to child labor investigations has declined from a high of 11 per cent [in 1990] to 7 per cent in 2001, with a low of 5 per cent in 1998.

30. In summarizing the results of its study, the GAO stated that the Department of Labor:

[...] devotes many resources to ensuring compliance with the child labor provisions of FLSA, including conducting nationwide campaigns designed to increase public awareness of the provisions, but its compliance efforts suffer from limitations that may prevent adequate enforcement of the law. First, Labor only recently developed specific goals for improving employer compliance in the industries in which most children work and continues to lack specific goals for industries for which children have high rates of injuries and fatalities. Second, it has not developed adequate methods of measuring the success of all of its compliance efforts. Third, Labor does not use all available data to plan its compliance efforts or assess the efforts of its local offices to ensure compliance with the child labor provisions of FLSA. Finally, Labor does not provide sufficient guidance and training to its local offices on how to use their resources most effectively or help them consistently apply the provisions of the law.

31. The GAO report includes seven recommendations that are intended to "strengthen WHD’s ability to evaluate the effectiveness of its child labor compliance efforts and ensure that limited resources are used in the most effective manner". The GAO recommends that the Secretary of Labor:

(1)  establish additional specific, measurable goals for WHD’s child labour compliance efforts for industries in which children are most likely to be injured or killed;

(2)  develop methods of measuring the success of WHD’s child labour compliance efforts, including its education and outreach activities;

(3)  routinely obtain data from BLS and NIOSH on the industries, occupations and locations in which children work - both legally and illegally - and sustain work-related injuries and use them to target WHD’s child labour compliance efforts;

(4)  routinely obtain and review data from its investigations database on the number and types of investigations conducted by WHD’s district offices and child labour violations found and use these data to: (i) ensure that WHD’s resources are deployed in the most effective manner; and (ii) hold regional and local offices accountable at the national level for ensuring recommendations that all children nationwide are protected under the child labour provisions of FLSA;

(5)  consider enhancing the data collected on children who work by expanding the Current Population Survey (CPS) to include 14 year-olds or beginning additional cohorts of the National Longitudinal Survey of Youth (NLSY) at regular intervals, such as every five years.

To provide WHD’s regional and district offices with the information they need to properly plan and implement their child labour compliance efforts, the Secretary of Labor should:

-  provide better guidance to WHD’s regional and district offices on how to improve employer compliance and specific guidance on when to assess penalties for child labour violations; and

-  provide training to all WHD staff on how to obtain information from the investigations database.

32. The GAO sent a draft of its report to the DOL for comments. The report indicates that DOL disagreed with many of the recommendations and conclusions, including those related to developing additional programme goals, improving methods for measuring programme success, and better use of data for management oversight, while it concurred with others. The GAO, in a summary of its own reply to the DOL comments, stated:

We continue to believe that additional improvements can be made in each of these areas. [The Department of] Labor agreed with the remainder of our recommendations or agreed to take action on them. For example, it agreed to obtain and review data from the WHISARD [Wage and Hour Investigative Support and Reporting Database] database to better hold local offices accountable, explore the possibilities of collecting additional data through CPS [Current Population Survey] or NLSY [National Longitudinal Survey of Youth], provide better guidance to WHD’s regional and district offices concerning penalty assessment, and provide training to WHD staff on how to obtain information from the investigations database.

33. The Committee notes the correspondence from the WHD of the DOL dated 11 September 2002, which contains the DOL comments on the GAO’s draft report, and which is reproduced in Appendix IV of the GAO report. The Committee also notes the GAO’s 29 detailed replies to the comments by the WHD, also set forth in Appendix IV.

34. The Committee notes that the DOL agreed with recommendations 4, 6 (in part), and 7 and, in the summary of its remarks, agreed to implement the following improvements in fiscal year 2003.

-  WHD has directed each District Office to submit plans for at least one directed child labour initiative in fiscal year 2003.

-  WHD will run reports from the WHISARD database on a quarterly basis to hold region and district offices accountable for conducting child labour investigations and compliance assistance activities.

-  WHD will work with the Office of the Solicitor to develop internal guidance on the assessment of civil money penalties for child labour violations. WHD will distribute an update to its Field Operations Handbook in fiscal year 2003. During fiscal year 2003, WHD will implement, and provide training for, a new reporting programme - Business Objects - that will allow staff to access standardized reports from the WHISARD database.

35. The Committee hopes that, in light of the points raised, the Government will address in detail all the points raised by the GAO in its replies to the comments of the DOL on the GAO draft report. The Committee further requests the Government to supply detailed and updated information on the implementation of the measures the DOL has agreed to take in fiscal year 2003 in response to recommendations 4, 6, and 7 in the GAO report. The Committee requests that the Government supply detailed and updated information concerning the progress and implementation of the measures discussed by the DOL in its comments on the GAO recommendations. The Committee requests that the Government supply a copy of the DOL Wage and Hour Administration’s fiscal year 2003 Annual Performance Plan. The Committee further requests that the Government report on the progress achieved by the WHD on reaching the goals in the plan, and to supply detailed information on the implementation and results of the specific measures and strategies for accomplishing the goals set out in the fiscal 2003 plan.

  Pending Legislative Amendments (Federal)

36. The Committee notes that in 2001, several legislative amendments to the FLSA were introduced in the 107th Congress to accord greater protection to child workers in hazardous employment. S.869, the Children’s Act for Responsible Employment of 2001 (The CARE Act), raises from 16 to 18 years old the minimum age for engaging in hazardous agricultural employment; limits the exemptions for agriculture to those children employed outside of school hours by a specified family member on that member’s farm; increases the maximum penalty for child labour violations to US$15,000 and impose a minimum penalty of US$500; requires the DOL to compile data biannually from state agencies and other sources concerning the types of industries and occupations in which children are employed and cases in which children are employed in violation of federal child labour prohibitions; requires employers to report to the state government on work-related injuries and illnesses incurred by employees under age 18; requires DOL to establish closer working relationships with non-governmental organizations and with state and local government agencies having responsibility for administering and enforcing labour and safety and health laws; and requires state and local government agencies to inform the DOL, upon request, about employee injuries and death.

37. H.R. 2239, the Children’s Act for Responsible Employment of 2001 (The CARE Act), is similar to S.869. It also directs the DOL to employ at least 100 additional inspectors within the WHD to enforce child labour laws; provides for a 10 per cent increase in the budget for the Employment Standards Division within the office of the Solicitor of Labor for increased prosecution of child labour law violations; amends the Federal Insecticide, Fungicide and Rodenticide Act to direct the EPA to revise and review every five years, a farmworker protection standard to take into account the routine presence of children employed on a farm or in a field in which a pesticide is applied; and amends the Workforce Investment Act of 1998 to direct the DOL to make competitive grants for specified types of programmes for migrant and seasonal farmworker youth dropout prevention.

38. The Young American Workers’ Bill of Rights, H.R. 961, amends FLSA to require employers to obtain work permits for all children age 18 or under who are still in school. It also requires the DOL and the Census Bureau to compile data on child labour from the states, including data on child labour violations, and produce an annual report. It amends the limitation on the scope of coverage to employers with a certain sales volume and increases the civil and criminal penalties for child labour violations. It also requires the DOL to establish an Advisory Committee for Child Labor, and to publish and disseminate the names and addresses of individuals who wilfully violate child labour laws.

39. The Committee requests that the Government supply detailed information about its position on these proposed legislative amendments and to report on steps to promote the The CARE Act and the Young American Workers’ Bill of Rights, with a view to bringing about their enactment by Congress.

Article 6 of the Convention

40. The Committee notes that, in its report the Government refers to a number of programmes of action and initiatives it indicates it has put in place to eliminate the worst forms of child labour, including a National Program of Action. With respect to preventing criminal exploitation of children, the Government mentions a Worker Exploitation Task Force and the work of the Child Exploitation and Obscenity Section of the Criminal Division of the Department of Justice. In relation to efforts to increase compliance with child labour laws aimed at reducing workplace injuries and fatalities to young workers, the Government cites an initiative of the DOL called Safe Work/Safe Kids, an ongoing enforcement initiative of the DOL’s WHD known as "Operation Salad Bowl," a Child Labor Task Force to improve enforcement coordination, and the implementation of new procedures to prioritize and increase sanctions for safety and health violations involving young workers. The Government also mentions a youth safety initiative sponsored by the Department of Agriculture. With respect to efforts to ensure that work of children does not adversely affect educational achievement and completion, the Government mentions the Migrant Education Program (MEP) and the High School Equivalency Program of the Department of Education. The Government further notes a number of statistical surveys and analyses on the labour force and occupational injuries conducted by the DOL, aimed at the provision of adequate information on issues arising from youth employment. The Committee further notes several initiatives and campaigns cited by the Government in its comments supplied to the GAO on its draft 2002 report on child labour, including "YouthRules!", "Work Safe This Summer", "Spring into Safety", and "Fair Harvest/Safe Harvest".

41. The Committee request that the Government supply updated information about these initiatives and programmes of action, including detailed and updated information on their implementation and how well they are being resourced, and reports evaluating their impact and effectiveness on the elimination of hazardous child labour and other worst forms of child labour. The Government is further requested to supply specific information about how these programmes are being designed and implemented through ongoing consultations with relevant government institutions and workers’ and employers’ organizations, and about the mechanisms set up to take into consideration the views of other concerned groups, as appropriate. The Committee requests that the Government supply information about any new programmes of action, initiated since the time of filing of its report and which address the problem of child labour in hazardous employment.

Article 7(2) of the Convention

42. The Committee takes note of the August 1998 report of the U.S. GAO, entitled Child Labour in Agriculture: Changes needed to better protect health and educational opportunities (GAO/HEHS-98-193). The Committee on Government Reform and Oversight of the Congress commissioned the report, in part, "to identify federal educational assistance programs and describe how they address the needs of children in migrant and seasonal agriculture, focusing on those aged 14 to 17". In Chapter 5 of the report, the GAO discussed these questions and identified a number of problems and raised a number of issues, including the following:

-  the Departments of Education and Labor administer many programs that provide direct educational services to educationally and economically disadvantaged school-aged children (those aged 6 to 17); however, few of these programs specifically target migrant and seasonal agricultural child workers or children of such workers, and most collect no information on the number of such children served; and

-  even for the two largest programmes that target some or all of this population - the Department of Education’s Migrant Education Program (MEP) and the Department of Labor’s Migrant and Seasonal Farmworker Program (MSFWP) - programme operations and subsequent data limitations impede a national evaluation of these programmes’ results for this target population.

43. Among the recommendations included in the GAO’s report were that "the Secretary of Labor direct the Assistant Secretary of the Employment and Training Administration to develop and analyse data on MSFWP services and outcomes for children aged 14 to 17 to determine the number of these children served, the services provided, and the outcomes experienced by these children".

44. The GAO provided copies of its draft report to the Departments of Labor and Education for comment. The GAO noted that the Department of Education provided technical comments to improve the clarity and accuracy of the report. The GAO reported that the DOL "did not directly comment on our recommendation to develop and analyse data on MSFWP services and outcomes for children aged 14 to 17, to determine the number of these children served, services provided, and outcomes achieved by these children. Labor said, however, that this information is included in the aggregated data collected on all participants aged 14 to 22. We [the GAO] recognize this, and, in fact, the inability to isolate information on children aged 14 to 17 is the main reason why we are making this recommendation. By combining the experiences of youths with adults, Labor cannot analyse the services provided to participants under 18".

45. The Committee requests that the Government supply updated information concerning the MEP and MSFWP programmes, as well as the initiatives of the Departments of Labor and Education mentioned in the GAO report to improve the administration and implementation of these programmes so as to benefit children engaged in hazardous agricultural employment. The Committee requests that the Government report in detail on these and any other measures, taken or contemplated, to address the problems identified by the GAO in Chapter 5 of its report.