When the topic of child labour is raised, it is very often confined to cocoa production in Côte d’Ivoire or mineral extraction in the Democratic Republic of the Congo. While child labour is undeniably more present in specific industries and countries, it should not be automatically excluded from human rights risk analysis as soon as operations and value chains are located in Western countries, let alone in the United States (US). Contrary to what some (European) managers may think, child labour does exist in the United States and is far from being limited to one or two small companies. As the former Secretary of Labour Marty Walsh said, child labour in the United States “is not a 19th century problem, this is a today problem”.
Child labour on the rise
According to the US Department of Labour, the number of minors employed in violation of child labour laws in 2022 (3876 cases) increased 37% over 2021 (2819 cases) and 178% over 2013 (1393 cases). The number of minors employed in violation of hazardous occupation orders in 2022 (688 cases) increased 26% over 2021 (545 cases) and 32% over 2013 (520 cases). Compared to 2015, the year with the lowest number of cases with 1012 cases of violations of child labour laws and 355 of violations of hazardous occupation orders, it represents respectively an increase of 283% and 94%. The total number of child labour across the country is likely much more than official data. Some estimations range up to 388 000 children being overworked and 69 000 doing hazardous work.
Violations of child labour laws encompass situations of excessive working hours, unpaid work, hazardous work and is found in the American supply chains of major brands such as Ben & Jerry’s, General Motors or Walmart.
Out of all children, migrant children and especially unaccompanied children from Central America are particularly at risk of being trapped in child labour. In 2022, nearly 130 000 entered the United States and often they have a debt to pay off. According to the director of the Office of Refugee Resettlement, of the 127 447 unaccompanied children released to sponsors, close to 15% were released to distant relatives or nonrelative sponsors which put them at higher risk of exploitation.
Child labour laws under attack
Under federal law, the 1938 Fair Labour Standards Act (FLSA) establishes minimum wage, overtime pay, recordkeeping, and youth employment standards affecting employees in the private sector and in federal, state, and local governments. There are two ways in which employees can be protected by the FLSA: 1) employees who work for companies that have an annual volume of sales or business of at least $500 000 or employees who work for hospitals, business providing medical or nursing care, schools, and government agencies (“enterprise coverage”) and 2) employees whose work regularly involves them in interstate commerce (“individual coverage”). Examples of employees who are involved in interstate commerce include those who produce goods such as a worker assembling components in a factory that will be sent out of state or those who regularly make telephone calls to persons located in other states. For employees protected by the FLSA, state laws can provide more protection than the federal law, but they cannot provide less.
The Department of Labour has the authority to investigate possible violations of the FLSA, including the power to examine an employer’s records and to interview employees. Authorities can also impose civil penalties (up to $11 000 per employee who is the subject of a child labour violation), seek an injunction, initiate criminal action, and take action to prevent the shipment of products made out of child labour violations.
Regarding youth employment, the FLSA sets the following minimum standards.
It is worth noting that the standards for agriculture employment fall short of International Organisation of Labour’s standards, notably regarding the prohibition of hazardous employment for all children under 18 (Article 3 Convention 138 and Convention 182).
Employees not covered by the FLSA depend on state laws. In the past 2 years, bills weakening child labour standards have been introduced or passed in 10 states, often with the support of business associations.
Considering the coverage of the FLSA, one could argue that the weakening of child labour standards at state level will have limited impact in supply chains. However, the adoption of states legislation conflicting with the FLSA is a way to challenge federal standards (in Ohio, a nonbinding resolution asking the US Congress to change federal law to mirror the proposed Ohio rule was passed by Republicans on a House committee) and is accompanied by proposals before the US Congress to reform the FLSA. In September 2022, the Teenagers Earning Everyday Necessary Skills Act was introduced to the US House of Representatives to amend the FLSA to expand working hours for children between the ages of 14 and 16 years during periods in which schools are in session. In March 2023, the Future Logging Careers Act was introduced to the US Congress to amend the FLSA to allow children of 16 and 17 year old to work in certain mechanised operations in the logging industry under parental supervision.
While attempts to undermine the FLSA are counterbalanced by proposals to increase civil penalties for child labour violations ranging from $150 000 to several hundred of million for the largest companies, these attacks both at state and federal level are yet another proof that human rights and labour rights achievements should never be taken for granted – even on a topic such as child labour.
Companies need to go beyond their preconceived ideas and acknowledge the risk of child labour in their American supply chains to conduct appropriate human rights due diligence.