Analysis

By MATEUSZ PERKOWSKI

Capital Press

While federal regulations governing on-farm child labor have stirred a lot of emotion, it's unclear what the government is actually doing and why.

The question pertains to the "parental exemption" from child labor restrictions.

Under federal labor law, farmers can employ their underage children to do on-farm tasks, even those deemed hazardous.

This rule would seem simple enough, but the concept of farm ownership has become more complicated in the half-century since Congress last altered the exemption.

Many family farms have incorporated for tax or legal reasons, like managing the transition in ownership from parents to children.

Groups like the National Council of Agricultural Employers and the American Farm Bureau Federation believe parents who own a stake in such corporations should get the exemption.

The position of the U.S. Labor Department is less transparent.

Last September, the agency proposed revisions to child labor regulations to "increase parity" between agriculture and other industries.

The move caused alarm on many farms.

While stating that it would "in no way compromise the statutory child labor parental exemption," the proposal offered a much different understanding of the rule than many were accustomed to. The exemption would be rendered "ineffective" if applied to "a business entity, corporation or partnership" that's not "wholly owned" by the parents.

When people other than the parents are owners, the child's "duties would be regulated by the corporation or partnership, which might not always have the child's best interest at heart," the agency said.

The agency claimed the exemption had been interpreted that way for more than 40 years, as required by federal law.

Agricultural groups disagreed.

From their perspective, the agency had long recognized the reality of incorporated farms and had not enforced a strict version of the parental exemption.

Public outcry persuaded the agency to "re-propose" its interpretation of the exemption. A "revised exemption" will be offered this summer.

Until then, parents or guardians will qualify for the exemption as long as they have a substantial ownership in the farm or are corporate officers, the agency said.

According to the agency, "this approach is consistent with guidance the Wage and Hour Division has provided to the public on its website for the past several years."

In recent congressional testimony, however, an agency official said the department has required farms to be wholly owned by the parents to qualify for the exemption since at least 2002.

Nancy Leppink, acting administrator of the Wage and Hour Division, also said that the "field operations handbook" that guides the enforcement actions of investigators is "out of date." It allows a broader interpretation of the parental exemption but doesn't comply with the latest laws and regulations and will be updated, she said. "This is a continuous process we're engaged in."

If the agency's statements about the parental exemption seem confusing, don't worry. Agricultural groups that follow the agency feel the same way.

"We haven't figured out if they're being obscure or if they don't know what's going on in the field," said Frank Gasperini, executive vice president of the National Council of Agricultural Employers.

Paul Schlegel, who follows child labor issues for the American Farm Bureau Federation, said he's been unable to get a clear answer.

The agency initially said it wasn't changing anything, but now seems to have acknowledged that it's rethinking the exemption, leaving farmers without clear-cut guidance for how labor law will be enforced, he said.

"That's a very fundamental due process question. ... Who decided, at what point, that they were going to change this?" he said. "They're being coy with what in fact they were enforcing and how they came up with that."

Brian Little, director of labor affairs for the California Farm Bureau Federation, said he's skeptical the agency actually had a change of heart.

The agency sees the "re-proposal" as a "smokescreen to get us to back off," Little said.

Agency officials want to prevent the issue from gaining further traction during a presidential election year, he said. "They're trying awful hard to relieve the pressure a little bit."