Proposal would stop some farmers from employing own children

By MATEUSZ PERKOWSKI

Capital Press

Agriculture groups are worried that proposed child labor regulations will stop many family farmers from employing their underage offspring.

Children who work for their parents' farms are excluded from federal restrictions on the type of work they can perform.

However, under the U.S. Labor Department's interpretation of the law, many multifamily farms that have incorporated for tax or legal reasons would not qualify for that exemption, farm labor experts say.

"We think a lot of family farms who think they're exempt will learn they're not because of the way their farm is structured," said Frank Gasperini, executive vice president of the National Council of Agricultural Employers.

The Labor Department's revisions were proposed last month to "increase the parity between the agricultural and nonagricultural child labor provisions" of federal labor law, according to the agency.

The proposal states family farms are allowed to employ children younger than 16 in activities deemed hazardous, but only if the operations are directly owned or operated by their parents or people who stand in their place.

The exemption does not apply if a child is employed by a corporation or partnership that's not solely controlled by his or her parents because such entities "might not always have the child's best interests at heart," according to the proposed rules.

Gasperini said many agricultural limited liability companies that include off-farm family in their ownership wouldn't qualify for the exemption under this interpretation, since the parents aren't the only owners.

"That's not the way farms are generally owned in 21st century America," he said.

In an e-mail, a spokesperson for the Labor Department said the agency's preferences regarding the parental exemption are "irrelevant" because it's "part of a statute passed by Congress and only Congress has the authority to change it."

Gasperini said it's true that Congress did not make corporations eligible for the parental exemption when the law was passed in 1937, but the industry has changed a lot since then.

The federal government has recognized that shift and strict enforcement of the parental exemption has not been a priority for the Labor Department or state labor agencies, he said.

That would likely change if the new rules are adopted, he said. "Whenever a new rule comes out, there's always a flurry of enforcement activity."

The American Farm Bureau Federation is also troubled by the proposal.

The group is asking the Labor Department to extend the comment period for the proposed revisions beyond Nov. 1, said Paul Schlegel, AFBF's director of energy and environment policy team.

Aspects of the regulations appear to be overly broad, such as their stated purpose of equalizing the child labor provisions for agricultural and nonagricultural industries, he said.

"We would say the law does not establish parity. If they're trying to do so, they're not in keeping with Congress' intent," Schlegel said.

Under the agency's interpretation, limited liability companies that are commonly formed by several siblings would be considered corporations not entitled to the parental exemption, he said.

"It would have a big impact," Schlegel said. "It's divorced from reality as far as how agriculture works."

The American Farm Bureau Federation is submitting thorough comments to try to change the regulations, but has not decided what further legal or political avenues to explore if the rules become final, he said.

However, Schlegel said he has heard that some members of Congress would be unhappy with the Labor Department's interpretation of the parental exemption.

Bryan Little, director of labor affairs for the California Farm Bureau Federation, said it's unclear what problem the Labor Department has perceived that would justify such a strong reaction, he said.

Perhaps the agency is motivated by administrative convenience, or it's too far removed from modern agriculture, Little said. "It's being written by people who think their bacon comes from the refrigerator case at the supermarket."

Not everyone believes the proposed rules are out of line, though -- particularly as they apply to duties performed by nonfamily hired laborers.

The Association of Farm Worker Opportunity Programs, an advocacy group for migrants, applauded the proposal's aim to "eliminate the disparity in the protection of children working in conditions deemed especially hazardous under the law," said David Strauss, its executive director, in an e-mail.