Farm worker woes and updating child labor laws (UPDATED)

Farm labor issues continue to frustrate producers across the country.

Among the chief complaints are federal visa programs that have proven too cumbersome and slow to keep up with the demands of cropping seasons. Add to that state laws passed to curtail illegal immigration that have instead had the unintended consequence of shortfalls in farm work crew numbers.

For more, see Calls increase for legal migrant worker program “fixes.”

Now, the Department of Labor (DOL) is set to release new proposed rules for child labor. Long in the works, the new rules have reportedly been approved by the White House.

For more on DOL's proposals see Agriculture facing major changes in child labor laws.

In late August, Delta Farm Press spoke with Frank Gasperini, Executive Vice President of the National Council of Agricultural Employers (NCAE), about visa program tweaks, whether the new child labor laws will impact family farms and why the labor situation is so dire. Among his comments:

On the DOL updating child labor laws and how that could affect children working on farms…

“We’re not sure what will happen, but recent reports are that the White House has agreed to allow proposed new rules to be issued.

“That will come in the form of a notice of proposed rule-making, not a finalized rule, yet. By law, that notice requires the DOL to seek public comment for a reasonable amount of time.  Normally, there is at least a 30-day public comment period. I’ve been told this one may be open for 60 days.

“Also, (organizations like NCAE) that want to comment normally look at the proposed rule and, if it’s very complex, one of the first things we’ll ask for is an extension of the comment period: ‘Look, this is really complicated. We want to comment fully and can’t do it in the short time you’ve offered.’

“In the past, DOL hasn’t been as forthcoming in issuing such extensions as some other agencies. But in some case they have allowed extensions so we’ll probably ask.”

On the Obama administration having been tight-lipped about the proposed changes…

“They’ve kept a very tight lock on what the proposed rules say. I’ve been told – but have not confirmed – that it does not remove the exemption for farm family children.

“Our best guess is that DOL will raise the age levels on some specific jobs they consider more hazardous than others. We also won’t be surprised if they place more limitations on works hours.

“That’s what is in place in Europe. The EU standard, with a few exceptions, makes it pretty difficult for anyone under 15 years of age – even the farm owner’s kids – to work on a farm.”

Why that may not matter…

“We just had some legal research done for one of our members. That was to clarify whether, or not, it makes any difference if their family farm is an LLC versus a sole proprietorship.

“According to most lawyers, it does make a difference. If your family farm is an LLC, the child doesn’t work for the parents solely. That’s a bit scary and into a gray area. Actually, some of the lawyers said it isn’t gray at all – that it’s very clear the child is like any other that steps on the farm to work without exemptions.  

“That’s a concern because a huge percentage of family farms are now set up as an LLC.”

Is there a legal work-around there? Will your group be looking into that?

“We will. However, this LLC issue is separate from the new rules (set to be released by the DOL).

“I had a member say ‘Man, we want to be very sure that if our granddaughter comes to work on the family farm it won’t be a problem.’

“Well, their farm is an LLC and the lawyers said ‘you can try to skirt around that. But if it ever went to court, they’ll likely find the child is working for the LLC, not directly for the parent.’

“A lot of our members with LLCs don’t allow their kids work until they’re 12 or 14, depending on the job.”

EDITOR’S NOTE

Asked to clarify the above issue, government officials provided Farm Press with the following information: “The Fair Labor Standards Actparental exemption in 13(c)(1)(A) applies to youth who are employed by their parents on a farm that is owned or operated by their parents.

“Where the ownership or operation of the farm is vested in persons other than the parent, such as a business entity, corporation or partnership (unless wholly owned by the parent(s)), the exemption would not apply.”