Observation (CEACR) - adopted 2014, published 104th ILC session (2015)

Worst Forms of Child Labour Convention, 1999 (No. 182) - United States of America (Ratification: 1999)

Follow-up to the discussion of the Committee on the Application of Standards (International Labour Conference, 103rd Session, May–June 2014)

The Committee takes note of the Government’s report as well as of the detailed discussion which took place at the 103rd Session of the Conference Committee on the Application of Standards (CAS) in June 2014 concerning the application by the United States of Convention No. 182. It also takes note of the observations of the International Organisation of Employers (IOE) and the United States Council for International Business (USCIB), received on 29 August 2014.

Articles 4(1), 5 and 7(1) of the Convention. Determination of types of hazardous work, monitoring mechanisms and penalties. Hazardous work in agriculture from 16 years of age. The Committee previously noted that section 213 of the Fair Labor Standards Act (FLSA) permits children aged 16 years and above to undertake, in the agricultural sector, occupations declared to be hazardous or detrimental to their health or well-being by the Secretary of Labor. The Government, referring to Paragraph 4 of the Worst Forms of Child Labour Recommendation, 1999 (No. 190), stated that Congress considered it as safe and appropriate for children from the age of 16 years to perform work in the agricultural sector. However, the Committee noted the allegation of the American Federation of Labor and Congress of Industrial Organizations (AFL–CIO) that a significant number of children under 18 years were employed in agriculture under dangerous conditions, including long hours and exposure to pesticides, with risk of serious injury.

The Committee, however, took due note that the Wage and Hour Division (WHD) of the Department of Labor (DOL) continued to focus on improving the safety of children working in agriculture and protecting the greatest number of agricultural workers. In addition, the Occupational Safety and Health Administration (OSHA) increased its focus on agriculture by creating the Office of Maritime and Agriculture (OMA) in 2012, which is responsible for the planning, development and publication of safety and health regulations covering workers in the agricultural industry, as well as guidance documents on specific topics, such as ladder safety in orchards and tractor safety.

While welcoming the measures taken by the Government to protect agricultural workers, including those under 18 years, the Committee reminded the Government that work in agriculture was found to be “particularly hazardous for the employment of children” by the Secretary of Labor. In this regard, according to the OSHA website, agriculture ranks among the most dangerous industries, and between 2003 and 2011, 5,816 agricultural workers died from work-related injuries in the United States. In 2011 alone, 570 agricultural workers died from work-related injuries, including 108 youths. Of the leading causes of fatal injuries to youths on farms in the United States, 23 per cent involved machinery (including tractors), 19 per cent involved motor vehicles (including all-terrain vehicles), and 16 per cent were due to drowning. In addition, the website indicated that an estimated 33,000 children have farm-related injuries each year in the United States, which are the result of being directly involved in farm work.

The Committee notes the observations of the IOE and the USCIB that section 213 of the FLSA, which was the product of extensive consultation with the social partners, is in compliance with the text of the Convention and Paragraph 4 of Recommendation No. 190. The IOE further observes that the United States has effectively monitored the implementation of the provisions giving effect to the Convention, and that the WHD continues to focus on improving the safety of children working in agriculture and protecting the greatest number of agricultural workers.

On the other hand, the Committee notes the statement made by the Worker members during the June 2014 CAS, to the effect that they disapproved of the fact that the Government was focusing on awareness raising and education rather than regulation. The Worker members emphasized that the discussion was not about agricultural work in family-run farms but the working conditions of young wage earners, more often than not migrants, who could not easily be reached by awareness-raising campaigns or educational measures because of the context in which they worked. It was for this reason that the Government of the United States should be encouraged to regulate the type of work that had been discussed, in accordance with ILO standards.

The Committee notes the Government’s detailed information in its report concerning the intensification of its efforts to protect young agricultural workers’ occupational safety and health. This information includes the following:

• -On 31 July 2014, the President signed the Fair Pay and Safe Workplaces Executive Order (EO), which requires prospective federal contractors to disclose labour law violations, including those relating to OSH and child labour, and gives agencies guidance on how to consider those labour violations when awarding federal contracts. Moreover, the Government continues to use a wide array of tools to protect youth working in agriculture, outreach to farmers, farm labour contractors, workers, parents, teachers and other federal agencies.
• -An important aspect of the protection and outreach activities is education and training. For example, the WHD is conducting extensive outreach in the tobacco industry – coordinating with national advocacy organizations to encourage workers to report violations, including child labour violations – working with consulates in the tobacco-producing regions to provide rights-based information to foreign workers and reaching out to growers to provide compliance assistance. In 2013, the WHD reached over 2,000 tobacco growers through outreach events.
• -Recognizing that migrant agricultural workers and their children are particularly vulnerable, the DOL developed and expanded a consular partnership programme in which it works with foreign embassies across the country to communicate with migrant workers and inform them about their rights in the United States. OSHA has also recently increased its focus on agriculture and has undertaken a number of enforcement, inspection and educational initiatives to reduce the number of injuries and illnesses in farming. While OSHA’s standards and regulations apply to covered employees of any age, it considers the age and experience of workers to be important factors in determining whether an employer has exercised due diligence in fulfilling his/her duty under the Occupational Safety and Health Act to provide employment free from recognized hazards that are causing or are likely to cause death or serious physical harm.
• -In addition, the National Institute for Occupational Safety and Health (NIOSH) continues to coordinate with the Federal Interagency Work Group on Preventing Childhood Agricultural Injury, which holds meetings on a bi-annual basis. In 2014, in the framework of its Childhood Agricultural Injury Prevention Initiative (CAIPI), NIOSH published a report summarizing 15 years of childhood agricultural injury research (1997–2011), which indicates that “dramatic progress has been made in reducing the number and rate of childhood agricultural injuries”. The report also states that injuries to youth under 20 years of age working, living or visiting farms declined by 58 per cent between 1997 and 2009, and a comparable reduction (60 per cent) occurred for youth living on farms during the same timeframe.

With regard to enforcement, the Committee notes the Government’s indication that, in recent years, the WHD has hired more investigators, conducted more investigations and sought the highest possible penalties for violations of child labour laws, including in the agricultural sector. Since fiscal year 2009, the WHD has conducted over 8,000 investigations in agriculture. For example, the WHD’s Portland district office conducted the investigation of a fruit company in Washington State and found two minors, aged 7 and 10, working in the fields picking strawberries, in violation of the FLSA’s child labour provisions. The WHD imposed a US$16,350 penalty, which was upheld by an administrative law judge in July 2013.

The Committee finally notes the Government’s information regarding the youth surveys conducted by the US Department of Agriculture’s National Agricultural Statistics Service (NASS), which developed a surveillance system to track and assess the magnitude and characteristics of non-fatal injuries to youth on US farming operations. Two types of youth surveys are conducted by NASS for NIOSH, one of which is the Childhood Agricultural Injury Survey (CAIS), which is representative of all farms in the country. In 2014, NIOSH updated the results of the surveys to include data from the 2012 CAIS, and the next CAIS survey will be conducted in 2015. The Committee notes that, according to the CAIS estimates from 2001, 2004, 2006, 2009 and 2012 combined, a total of 29,969 working youth under 20 years of age suffered from injuries on US farms, of whom 3,261 were under 10 years old, 12,064 were between 10 and 15 years of age, and 7,499 were 16 and 17 years of age. The injuries in question include bruises, sprains, burns, fractures, cuts and traumatic brain injuries. In addition, according to the website of the NIOSH Center for Disease Control and Prevention, in 2012, an estimated 14,000 youth were injured on farms; 2,700 of these injuries were due to farm work.

While taking due note of the various measures taken by the Government to protect the health and safety of young persons working in agriculture, the Committee also takes note of the serious concern expressed by many speakers in the framework of the CAS with regard to the hazardous and dangerous conditions that were, and could be, encountered by children under 18, and indeed in some cases under 16, in the agricultural sector. The Committee further notes that despite the various government initiatives and programmes to better protect the health and safety of children working in the agricultural industry, agriculture ranks among the most dangerous industries and that a number of children under 18 years suffer serious and sometimes fatal injuries while engaged in farm work. The Committee emphasizes that work which, by its nature or the circumstances in which it is carried out was likely to harm the health, safety or morals of children, constitutes one of the worst forms of child labour and, therefore, member States are required to take immediate and effective measures to secure the prohibition and elimination of the worst forms of child labour as a matter of urgency. While Article 4(1) of the Convention allows the types of hazardous work to be determined by national laws or regulations or the competent authority, after consultation with the social partners, the Committee notes that in practice, the agricultural sector, which is not on the list of hazardous types of work, remains an industry that is particularly hazardous and detrimental to young persons. The Committee accordingly calls on the Government to continue taking effective and time-bound measures to ensure that children under 18 only be permitted to perform work in agriculture on the condition that their health and safety are protected and that they receive adequate specific instruction. It requests the Government to pursue its efforts to strengthen the capacity of the institutions responsible for the monitoring of child labour in agriculture, to protect child agricultural workers from hazardous work. The Committee also requests the Government to continue providing detailed statistical information on child labour in agriculture, including the number of work-related deaths, injuries and illnesses of children working in agriculture, as well as the extent and nature of child labour violations detected, investigations carried out, prosecutions, convictions and penalties applied. Finally, the Committee requests the Government to provide the results of the CAIS survey to be conducted in 2015.