Meeting speaker explains Child Labor Law Provisions

The Nebraska Agribusiness Club met for its January lunch meeting today and hosted Sean A. Minahan, a partner in the Lamson, Dugan and Murray Law Firm’s Litigation Department. The topic of discussion was on “Child Labor and Agriculture”.

Sean writes extensively in the Firm’s Midwest Agricultural Law Guide. In May 2011 he posted a blog about the dangers of children working in agriculture and warned the further federal regulation could be on the way restricting child labor in agriculture. He also has another great blog post from this past November on proposed rules in the child labor laws. Nebraskan’s became very aware of the proposed regulations in the closing months of 2011 before the commenting period ended on December 1, and it is still a very hot issue into 2012.

Sean explained that the new discussions about the child labor laws have not been updated since 1970 and were originally authorized by the Fair Labor Standards Act (FLSA) of 1938. They were enacted to ensure that when young people work, the work is safe and does not jeopardize their health, well-being or educational opportunities. These provisions were revised in 1970 (shown below) and also provide limited exemptions.

The Agricultural Hazardous Occupations as Last Revised September, 1970

(1) Operating a tractor of over 20 PTO horsepower; (student-learner exemption applies)
(2) Operating or assisting to operate (including starting, stopping, adjusting, feeding, or any other activity involving physical contact associated with the operation) any of the following machines: corn picker, cotton picker, grain combine, hay mower, forage harvester, hay baler, potato digger, mobile pea viner, feed grinder, crop dryer, forage blower, auger conveyor, the unloading mechanism of a nongravity-type self-unloading wagon or trailer, power post-hole digger, power post driver, or nonwalking type rotary tiller; (student-learner exemption applies)
(3) Operating or assisting to operate earthmoving equipment, fork lift, potato combine, or power-driven circular, band, or chain saws;
(4) Working on a farm in a yard, pen, or stall occupied by a bull, boar, stud horse maintained for breeding purposes, sow with suckling pigs, or cow with newborn calf ;
(5) Felling, bucking, skidding, loading, or unloading timber with butt diameter of more than six inches;
(6) Working from a ladder or scaffold (painting, repairing, or building structures, pruning trees, picking fruit, etc.) at a height of over 20 feet;
(7) Driving a bus, truck, or automobile when transporting passengers, or riding on a tractor as a passenger or helper;
(8) Working inside a fruit, forage, or grain storage designed to retain an oxygen deficient or toxic atmosphere; an upright silo within two weeks after silage has been added or when a top unloading device is in operating position; a manure pit; or a horizontal silo while operating a tractor for packing purposes;
(9) Handling or applying Category I or II agricultural chemicals;
(10) Handling or using a blasting agent, including but not limited to, dynamite, black powder, sensitized ammonium nitrate, blasting caps, and primer cord;
(11) Transporting, transferring, or applying anhydrous ammonia.

Read more details from the DOL here.

There are two 2011 Proposed Regulatory Revisions that are categorized in the Nonagricultural Hazardous Occupations Order that could affect Nebraska youth from working in agriculture:
(1) Children under the age of 18 are not allowed to work in the farm product raw material wholesale trade industry: Grain and Field & livestock: includes all occupations performed at such establishments as country grain elevators, train elevators, grain bins, silos, feed lots, feed yards, stockyards, livestock exchanges and livestock auctions.
(2) Children under the age of 18 are not allowed to use electronic devices while operating power driven machinery.

The two exemptions are that will remain with revised provisions:
(1) If the farming operation is operated by (own or operate), the child is exempt. The DOL interprets “operated by” the parent or person standing in the place of the parent to mean that he or she exerts active and direct control over the operation of the farm or ranch by making day-to-day decisions affecting basic income, work assignments, hiring and firing of employees, and exercising direct supervision of the farm or ranch work.
(2) The youth is a student-learner. (The proposed revisions are looking at a 90-hour formal certification process for the youth to be certified.)

The provisions will only take place if that youth is employed and working for income. If they work for free, none of these rules apply.

The 2011 Proposed Regulatory Revisions  – Agricultural Hazardous Occupations Order from the DOL are as listed:
1) Prohibit anyone under the age of 16 from operating a tractor regardless of PTO horsepower; (student-learner exemption applies)
2-3) Combined Hazardous Occupations 2 and 3 into one. Prohibits anyone under the age of 16 from operating power driven equipment. (Student-learner exemption only applies to harvesting and threshing machines and does not apply to automobiles, buses, trucks, ATVs, skid steer loaders, front end loaders, bobcats, cugers, bulldozers, feed grinders, chain saws, welding equipment and auger wagons);
4) Prohibit anyone under age of 16 from working on a farm in a yard, pen, or stall occupied by a bull, boar, stud horse maintained for breeding purposes, sow with suckling pigs, or cow with newborn calf ; engaging in animal husbandry practices that inflict pain (branding, breeding, dehorning, castrating, vaccinating, treating sick animals), poultry cooping, herding animals in confined spaces, or on horseback, ATV or motorized vehicles. (No student-learner exemption)
5) Prohibit anyone under the age of 16 from occupations involving timber operations. Effectively removing the 6-inch diameter threshold. (No student-learner exemption)
6) Prohibit anyone under the age of 16 from working from a ladder or scaffold at elevations greater than 6 feet. Removes 20-foot threshold. (Student-learner exemption applies to equipment identified in Hazardous Occupations 2-3)
7) Prohibit anyone under the age of 16 from working inside a fruit, forage, or grain storage silo or bin, or manure pit. Encompasses all storage facilities rather than merely air tight or silage facilities. (No student-learner exemption)
8) Prohibit anyone under the age of 16 from handling pesticides. Removes Category I or II qualifications. (No student-learner exemption)
9) Prohibit anyone under the age of 16 from handling blasting agents. Essentially no changes. (No student-learner exemption)
10) Prohibit anyone under the age of 16 from transporting, transferring, or applying anhydrous ammonia. Essentially no changes. (No student-learner exemption)

Thanks, Sean, for joining our meeting and for explaining the impact of the Child Labor Laws to Nebraska agriculture.

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