69–006

106TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 1st Session 106–31

AMENDING THE FAIR LABOR STANDARDS ACT OF 1938 TO

PERMIT CERTAIN YOUTH TO PERFORM CERTAIN WORK

WITH WOOD PRODUCTS

FEBRUARY 24, 1999.—Committed to the Committee of the Whole House on the State

of the Union and ordered to be printed

Mr. GOODLING, from the Committee on Education and the

Workforce, submitted the following

REPORT

together with

MINORITY VIEWS

[To accompany H.R. 221]

[Including cost estimate of the Congressional Budget Office]

The Committee on Education and the Workforce, to whom was

referred the bill (H.R. 221) to amend the Fair Labor Standards Act

of 1938 to permit certain youth to perform certain work with wood

products, having considered the same, report favorably thereon

without amendment and recommend that the bill do pass.

PURPOSE

The purpose of H.R. 221 is to amend the Fair Labor Standards

Act of 1938 to allow certain youth to be employed under certain

conditions in businesses where machinery is used to process wood

products.

COMMITTEE ACTION

106TH CONGRESS

Representative Joseph R. Pitts introduced H.R. 221, along with

13 cosponsors, on January 6, 1999. The Committee on Education

and the Workforce favorably reported the bill, without amendment,

by voice vote, on February 10, 1999.
2

1 29 U.S.C. § 201–219.

2 29 U.S.C. § 212(c).

3 29 U.S.C. § 203(l)(1) and (2).

4 29 C.F.R. § 570.50–570.68.

5 29 U.S.C. § 213(c).

6 29 U.S.C. § 213(d).

7 29 U.S.C. § 213(c)(5).

105TH CONGRESS

The Subcommittee on Workforce Protections held a hearing on

April 21, 1998, on the effect of the Fair Labor Standards Act on

Amish families. The following individuals testified at the hearing:

the Honorable Joseph R. Pitts, Member of Congress, representing

the 16th District of Pennsylvania; Mr. Christ Blank, Chairman of

the Old Order Amish Steering Committee—National, Kinzers,

Pennsylvania; and Mr. William Burkholder, owner of a sawmill,

Centerville, Pennsylvania. Representative Pitts introduced H.R.

4257, with eight cosponsors, on July 16, 1998. On July 22, 1998,

the Committee on Education and the Workforce ordered H.R. 4257

favorably reported, as amended, by voice vote. The House passed

the bill, with an amendment in the nature of a substitute, by voice

vote under suspension of the rules on September 28, 1998. The

Senate took no action on the bill prior to the adjournment of the

105th Congress.

COMMITTEE STATEMENT AND VIEWS

BACKGROUND

The Fair Labor Standards Act of 1938 1 (FLSA) restricts the employment of persons under the age of 18. The FLSA’s restriction on

child labor is very general: ‘‘No employer shall employ any oppressive child labor in commerce or in the production of goods for commerce or in any enterprise engaged in commerce or in the production of goods for commerce.’’ 2 ‘‘Oppressive child labor’’ is defined as

any employment in mining or manufacturing or ‘‘in any occupation

which the Secretary of Labor shall find and by order declare to be

particularly hazardous for the employment of children * * * or detrimental to their health or well-being. * * *’’ 3 The Department of

Labor has issued a series of ‘‘Hazardous Occupation Orders’’ which

further delineate what constitutes ‘‘oppressive child labor’’ under

the FLSA.4

Over the years, Congress has enacted a number of exceptions to

the general restrictions on child labor in the FLSA and the Hazardous Occupation Orders. These exceptions address specific occupations and permit persons under the age of 18 to work in circumstances that would otherwise be prohibited. For example, the

FLSA has been amended to allow persons under the age of 18 certain employment in agriculture 5 and newspaper delivery.6 In 1996,

the FLSA was amended to allow 16- or 17-year-old employees to

work around certain scrap paper balers and compactors so long as

those employees are not operating the baler or compactor and certain other precautions are taken.7 In 1998, restrictions under the

Department of Labor’s Hazardous Occupation Order on the driving

of motor vehicles by 17-year-old employees were amended by Public

Law 105–334.
3

8 29 U.S.C. § 203(l).

9 29 C.F.R. § 570.54.

10 29 C.F.R. § 570.55. 11 Hearing on the Effect of the Fair Labor Standards Act of 1938 on Amish Families before

the Subcommittee on Workforce Protections, Committee on Education and the Workforce, U.S.

House of Representatives, 105th Congress, Second Session, Serial No. 105–94, p. 6–10. 12 Ibid.

With regard to sawmills and places of employment with woodworking equipment, the FLSA prohibits any person under the age

of 16 from working in manufacturing,8 which the Department of

Labor has determined includes sawmills and woodworking. In addition, Hazardous Occupation Order No. 4 (HO 4) 9 prohibits any 16-

or 17-year-old from doing any work in a sawmill building, the log

pond area, and the log storage yard. Outside of those areas, 16- or

17-year-olds may perform clerical and certain clean-up activities.

Hazardous Order No. 5 (HO 5) 10 prohibits 16- or 17-year-olds from

operating, assisting to operate, setting up, adjusting, repairing, oiling or cleaning power-driven woodworking machines. Woodworking

machines are any fixed or portable power-driven machines that are

used or designed for cutting wood or veneer.

The Department of Labor does currently permit an exception to

the prohibition on working with woodworking machines for apprentices or student-learners, provided they are employed under specific

conditions. An apprentice must be employed in a craft recognized

as an apprenticeable trade that is registered with the Bureau of

Apprenticeship and Training (BAT) at the Department of Labor or

with a State agency approved by BAT. Student-learners must be

enrolled in a course of study and training in a vocational training

program sanctioned and monitored by the State.

The need for H.R. 221 grew out of a series of enforcement actions

which the Department of Labor began initiating in 1996 against

members of the Amish community for employing persons under the

age of 18 in sawmills and small woodworking shops. As a result of

these enforcement actions, several Amish shop owners and sawmill

operators were assessed fines of several thousands of dollars. The

enforcement actions also ended many of the employment opportunities for Amish youth under the age of 18.11

In the Amish community, youth conclude their formal education

with the eighth grade and then progress to informal, hands-on education, working with their families to acquire vocational experience

and practical skills in areas such as farming and carpentry. As Mr.

Christ K. Blank, Chairman of the Old Order Amish Steering Committee—National, related to the Subcommittee on Workforce Protections in April 1998: 12

Typically, the Amish youth leave school at the end of the

eighth grade, but their education does not stop there. Instead, they only begin to absorb in earnest, the knowledge

and skills needed to earn a livelihood and support a family. Upon completion of the eight terms of elementary

school, many Amish children are enrolled in an informal

vocation class of learning by doing under parent and

church supervision to further prepare them to enter into

the adult work place. This informal vocational class is recognized by the United States Supreme Court ruling in
4

13 Ibid. 14 Ibid.

Wisconsin v. Yoder, as an alternative to the compulsory

school attendance laws.

Formal high school education beyond the eighth grade is contrary

to Amish beliefs, which require school age children to learn by

doing the skills directly relevant to their role as an adult in the

Amish community. Mr. Blank described this aspect of the Amish

culture to the Subcommittee: 13

At age 14, an Amish boy or girl is considered to be ready

for a full course of training. A training that requires

‘‘learning by doing.’’ This adolescent period is of utmost importance to our religious status. We must not tolerate idleness during these adolescent years, therefore we see a dire

need that our youth learn a trade or remain occupied, preferably under supervision of a parent or church member. It

is a long-standing Amish belief and tradition to instill good

work ethics in our children at a young age and to start

training a child at a fairly young age to become a self-supporting, respectful and law-abiding citizen. * * * We

strongly believe the ages 14 through 17 to be a very tender

receptive age in which to instill these long-standing Amish

values and work ethics in our children. We believe that

forced idleness in this age to be detrimental to our longstanding Amish way of raising our children and teaching

them to become good productive citizens.

In the past, conflict between the Amish belief and practice of

ending formal education at age 14 and thereafter undertaking

‘‘learning by doing,’’ and the federal child labor laws which prohibit

or restrict many types of employment by persons under the age of

18 was minimized by the Amish community’s reliance on farming

and agriculture as the primary vocation. As mentioned above, the

FLSA includes provisions specific to agriculture relating to the employment of persons under the age of 18, which are less restrictive

than those that would otherwise apply, particularly for work on

family farms. Economic pressures over the years, including the rising cost of land, have forced many Amish families out of agricultural occupations. The need to generate income to purchase land

and pay taxes and medical bills has forced more and more Amish

families into other non-agricultural occupations such as woodworking and carpentry. Mr. Blank described these changes to the Subcommittee: 14

We recognize that, historically, the Child Labor laws

have been more lenient on farm labor, especially a family

farm. For many years our livelihood was based largely on

agriculture and for many still is. However, due to many

reasons beyond our control, the trend is gradually forcing

more and more of our youth to learn other trades. We try

to encourage an occupation where such youth is learning

by doing by working at a place where his father or a member of the church is available to supervise him.
5

15The efforts of Members of Congress to work with the Department of Labor to accommodate

the needs of the Amish are described in letters dated August 7, 1997 and December 22, 1997

from Reps. Joseph Pitts, Mark Souder, John Peterson, and Phil English to John Fraser, Administrator, Wage and Hour Division and Alexis Herman, Secretary of Labor, respectively, and letter dated November 12, 1997 from Senator Arlen Specter to Alexis Herman, Secretary of Labor. 16 Conference Report to accompany H.R. 2264, making appropriations for the Departments of

Labor, Health and Human Services, and Education, and related agencies for the fiscal year ending September 30, 1998, and for other purposes, House Report No. 105–390, p. 68.

Due to the high cost of our dwindling supply of farm

land, more and more of our families are being forced to

start small businesses such as woodworking shops, welding shops, sawmills, pallet shops, etc. This is in keeping

with the Amish tradition of operating a family business so

the family can work together.

The current child labor laws thus directly and significantly interfere with the ability of Amish families to carry out an important

part of their beliefs, culture and lifestyle. The Amish belief that formal education should end at the age of 14 and that Amish youth

should thereafter ‘‘learn by doing’’ is effectively undermined when

these young people are prevented by federal labor law from being

trained at that age in the workplaces and occupations that are

most available to them within the Amish community.

Members of Congress and representatives of the Amish community have attempted to work with the Department of Labor to find

a solution to the conflict between the child labor restrictions under

the FLSA and the needs of the Amish to carry out their religious

beliefs and lifestyle. Members of Congress met on several occasions

with officials of the Department of Labor to request assistance in

reaching a practical solution to the problem.15 The conference report for the fiscal year 1998 appropriations bill for the Departments of Labor, Health and Human Services, and Education also

urged the Department of Labor to resolve the child labor issues relating to the Amish community, while taking into account the special needs of the Amish.16 Unfortunately the Department of Labor’s

response to these efforts has consistently been unwillingness to

consider any changes in regulations and opposition to changes by

legislation.

LEGISLATION

H.R. 221 is a reasonable and practical solution to the problem

stemming from the Department of Labor’s application of the child

labor provisions of the FLSA to youth in the Amish community.

The bill would amend the FLSA to allow Amish youth to work

under certain conditions in sawmills and other workplaces where

machinery is used to process wood products.

H.R. 221 would permit an individual who is at least 14 years of

age and who is a member of a religious sect or division thereof

whose established teachings do not permit formal education beyond

the eighth grade to be employed inside or outside places of business

where machinery is used to process wood products.

H.R. 221 provides a number of safety precautions pertaining to

those persons under the age of 18 (‘‘minor’’) who are permitted by

the bill to work in sawmills and other workplaces containing

power-driven woodworking equipment.
6

17 29 U.S.C. § 651–678. Regulations on exposure to dust and noise are at 29 U.S.C. § 1910.1000

and at 29 C.F.R. § 1910.95. Sawmills are generally regulated at 29 C.F.R. § 1910.265, and woodworking machinery is regulated at 29 C.F.R. § 1910.213.

First, the minor may not, under any circumstances, operate or

assist in the operation of power-driven woodworking machines.

Second, the minor must be supervised by an adult relative of the

minor or by an adult member of the same religious sect or division

of a sect as the minor.

Third, the minor must be protected from wood or other flying debris within the workplace by a barrier appropriate to the potential

hazard of such wood particles or flying debris or by maintaining a

sufficient distance from machinery in operation. The language of

H.R. 221 is intended to provide safety but also flexibility: a sawmill

cutting heavy trees into large boards would require a different type

of barrier or a different distance to be maintained than would a

woodworking shop which uses and cuts much smaller pieces of

wood. The requirement for a barrier does not necessarily require

that the minor be kept in a separate room or outside of the sawmill

or workplace in which the woodworking equipment is located. The

barrier used may be temporary, but it should be substantial

enough to provide protection against injury to the minor from

pieces of wood or other material which may be thrown in the

course of cutting logs or other wood products.

Fourth, the minor must be required to use personal protective

equipment to prevent exposure to excessive levels of noise and sawdust. Standards regarding exposure to sawdust and noise and the

use of personal protective equipment to protect against harmful

levels of exposure in the workplace have been established under

the Occupational Safety and Health Act.17 This provision of H.R.

221 is intended not to require new or additional standards but to

reinforce the importance of those standards to individuals under

the age of 18 for whom the bill applies.

During the Committee’s markup of H.R. 221, Representative

Lynn C. Woolsey offered an amendment that would have prevented

an employer who employed an individual pursuant to H.R. 221

from utilizing the youth minimum wage under Section 6(g) of the

FLSA. The FLSA allows any employer to pay a youth minimum

wage of not less than $4.25 an hour to employees who are under

20 years of age during the first 90 consecutive calendar days after

initial employment. Rep. Woolsey’s amendment was defeated by

vote by the Committee. The youth minimum wage was passed, on

bipartisan basis, in 1996 and is available to all employers covered

by the FLSA. There is no reason for singling out the Amish as the

only employers who would not be allowed to use it.

A second amendment, sponsored by Representative Dale E. Kildee, would have conditioned the provisions of the bill on whether

the employer prepared and submitted details reports to the Secretary of Labor on any work related injury or fatality of an employee under age 18. Since there was no definition of ‘‘work-related’’ in the amendment, any injury in or around the workplace occurring to an employee under age 18 requiring more than first aid

would likely be covered. A strained ankle incurred outside a woodworking and having nothing to do with being around woodworking

equipment would be covered by the Kildee amendment. If the em-
7

18 29 U.S.C. § 657(c)(2). 19Letter dated February 9, 1999, from Alexis M. Herman, Secretary of Labor, U.S. Department of Labor, to the Honorable William F. Goodling, Chairman, Committee on Education and

the Workforce, U.S. House of Representatives. 20Letter dated September 25, 1998, from L. Anthony Sutin, Acting Assistant Attorney General, U.S. Department of Justice, to the Honorable Arlen Specter, Chairman, Subcommittee on

Labor, Health and Human Services, and Education. Committee on Appropriations, U.S. Senate. 21Letter dated February 9, 1999, from Dennis K. Burke, Acting Assistant Attorney General,

U.S. Department of Justice, to the Honorable William Goodling, Chairman, Committee on Education and the Workforce, U.S. House of Representatives.

ployer failed to submit a detailed report on the ankle injury to the

Department of Labor, would potentially result in substantial retrospective liability from having employed the individual in the first

place. The Department of Labor, under the authority of the Occupational Safety and Health Act, already has requirements for the

recording and reporting of injuries or fatalities on the job.18 These

requirements for recording and reporting injuries and fatalities

apply to employers of Amish employees in the same way they apply

to all other employers. The Committee does not believe that Amish

woodworking shops should be singled out for additional reporting

requirements, particularly when there is no reasonable basis, such

as improved safety, shown for this additional requirement.

In a letter dated February 9, 1999, to the Chairman of the Committee on Education and the Workforce on behalf of the Department of Labor, the Secretary of Labor expressed the Department’s

concerns that the protections provided in the legislation considered

during the 105th Congress were inadequate.19 However, the Department of Labor again offered no suggested changes to the legislation and, as described above, the Department of Labor has been

unwilling over the past several years to provide a practical solution

and accommodation for the Amish seeking to preserve their beliefs

and lifestyle.

CONSTITUTIONALITY OF H.R. 221

Subsequent to House passage of H.R. 4257 in the 105th Congress, the U.S. Department of Justice sent a letter to Senator Specter regarding constitutional issues raised by H.R. 4257.20 The identical letter, with updated references, was sent to Chairman Goodling on February 9, 1999.21 The Department of Justice letter states

that, in its view, the bill would ‘‘raise serious concerns under the

Establishment Clause of the First Amendment to the Constitution.’’

However, the Department of Justice also stated that ‘‘[o]ur views

are necessarily tentative, because of several factual questions * * *

as to which we do not have sufficient information.’’

The Committee believes that the legislation embodied in H.R.

4257 in the 105th Congress and H.R. 221 in the 106th Congress

is constitutional.

The Department of Justice letter completely ignores the fact that,

as described above, numerous exceptions and special provisions to

the FLSA’s general provisions have been enacted, including several

that pertain to the application of the child labor restrictions. These

exceptions and special provisions have all been designed to address

particular circumstances where the general restrictions on child

labor have created a particular burden and are deemed excessively

restrictive to protect the well being of persons under the age of 18.
8

22 127 F.3d 184 (1st Cir., 1997), cert. denied 118 S.Ct. 2341 (1998). 23 127 F.3d at 188. 24 406 U.S. 205, 92 S.Ct. 1526 (1972). 25 406 U.S. at 210.

H.R. 221, in granting narrow and limited relief in one more such

situation, is in line with many previous amendments to the FLSA.

H.R. 221 is not special relief of a type granted to no other group

in society. There is no reason to consider the Amish less deserving

of carefully crafted relief than any secular group or occupation.

The fact that Congress has created numerous FLSA exceptions

and special provisions for other groups and occupations is an important factor in whether the relief granted in H.R. 221 is an Establishment of Religion. In Rojas v. Fitch,22 the exemption for religious employers from federal and state unemployment taxes was

challenged as an unconstitutional Establishment of Religion. The

Court of Appeals upheld the exemption, stating that, ‘‘the current

exemption for religious employment * * * rests within the context

of a variety of other exemptions, all of which appear to share a

common secular purpose. Efficient administration of the unemployment compensation system is particularly enhanced through the

exemptions for religion because it eliminates the need for government to review employment decisions made on the basis of religious rationales.’’ 23 Similarly here, the provisions of H.R. 221 cannot be viewed separately from the many previous exemptions and

special provisions in the FLSA that have been enacted since 1938

in order to address particular burdens or unnecessary restrictions

imposed by the general provisions of the law.

The Department of Justice letter also shows little understanding

or respect for the dilemma facing the Amish as they seek to maintain their religious lifestyle in changing circumstances. The Department of Justice letter dismisses the Amish tradition of ‘‘learning by

doing’’ certain trades and occupations as simply a matter of economic choice by the Amish. But as the Supreme Court recognized

in Wisconsin v. Yoder,24 the Amish religion is tied to a whole lifestyle that cannot be easily separated between religious and secular

aspects: 25

* * * As a result of their common heritage, Old Order

Amish communities today are characterized by a fundamental belief that salvation requires life in a community

separate and apart from the world and world influence.

This concept of life aloof from the world and its values is

central to their faith.

A related feature of the Old Order Amish communities

is their devotion to a life in harmony with nature and the

soil, as exemplified by the simple life of the early Christian

era that continued in America during much of our early

national life. Amish beliefs require members of the community to make their living by farming or closely related

activities. Broadly speaking, the Old Order Amish religion

pervades and determines the entire mode of life of its adherents. * * *

Establishment Clause cases before the U.S. Supreme Court have

covered a wide variety of factual settings, from aid to religious
9

26See ‘‘The Law of Church and State: Developments in the Supreme Court Since 1980’’ (January 9, 1998), CRS pub. 98–65A by David M. Ackerman. 27 483 U.S. 327, 107 S.Ct. 2862 (1987). 28 42 U.S.C. § 2000e–1. 29 483 U.S. at 335. 30 456 U.S. 228 (1982). 31 938 F.Supp 1466 (D.Ct. MN, 1996).

schools to chaplains in state legislatures.26 The only Supreme

Court decision on an Establishment Clause challenge to a legislative exemption to an employment law of general application is

Church of Jesus Christ of Latter-Day Saints v. Amos.27 The Amos

case involved a challenge to the exemption for religious organizations from Title VII’s prohibition on discrimination on the basis of

religion.28 The Supreme Court upheld the exemption, finding that

Congress had a permissible ‘‘secular legislative purpose’’ in granting the exemption: ‘‘It is a permissible legislative purpose to alleviate significant governmental interference with the ability of religious organizations to define and carry out their religious missions.’’ 29

In its letters on H.R. 4257 and H.R. 221, the Department of Justice stated that it does not have sufficient factual basis on which

to evaluate whether this ‘‘purpose’’ test, as stated in Amos, is met

with regard to the Amish and the relief granted by H.R. 221. However, the Committee has developed such a factual record. As discussed above, the Amish community has, for a number of reasons,

been forced to rely less on agriculture and more on other occupations, including sawmills and woodworking shops. As Mr. Blank

testified in 1998 before the Subcommittee on Workforce Protections, the Amish belief in ‘‘learning by doing’’ is an integral part

of Amish training and upbringing of young people. But such means

of training within the Amish community is possible only if the

trades and occupations of the Amish are available to these young

people. For the Amish, prohibiting young people from practically

learning the trades that are increasingly the trades and occupations which the Amish are dependent upon constitutes ‘‘significant

governmental interference’’ with their lifestyle and religious mission.

H.R. 221 is distinguished from the legislative exemption that was

challenged in Amos in that it does not apply to all religious organizations. H.R. 221 applies only if the individual involved is between

the ages of 14 and 18 and ‘‘is a member of a religious sect or division thereof whose established teachings do not permit formal education beyond the eighth grade.’’ In some cases the courts have suggested that any legislation that distinguishes among religious

groups be subject to stricter scrutiny than would be the case if the

legislation benefited all religious organizations. E.g., Larson v.

Valente,30 (holding unconstitutional a state law granting some religious organizations, but not others, exemption from registration

and disclosure of charitable contributions); Children’s Healthcare v.

Vladeck,31 (holding unconstitutional provisions of Medicare and

Medicaid granting special payment conditions for Christian Science

sanitoria).

Even in these cases, however, differentiating among religious

groups is not per se unconstitutional; it simply triggered stricter

scrutiny by the court as to whether Congress or the state legisla-
10

32 938 F.Supp at 1480.

ture had a sound reason for differentiating among religious groups.

The scope of the relief must be appropriate to the legislative purpose. For example, in Vladeck, the district court found that the legislative purpose of accommodating Christian Scientists in the Medicare and Medicaid programs was permissible and appropriate, but

that by specifically naming Christian Science in the statute, Congress had foreclosed the same relief to other similarly situated religious groups: ‘‘there is no guarantee that a religious group in a

similar situation to the Christian Scientists (i.e., a religious group

believing in faith healing which has set up certain institutions to

promote such healing) would receive similar accommodation from

Congress.’’ 32

In contrast to the Medicare and Medicaid statutes, the exemption

in H.R. 221 is available to any similarly situated religious group.

Further, the scope of the relief from otherwise applicable child

labor restrictions is directly related to the legislative purpose of relieving a conflict between the child labor regulations and the needs

of those religious groups who believe that formal education should

end after the eighth grade.

Finally the Department of Justice letter raises the concern that

in order to be constitutional, H.R. 221 may not place Amish youth

at ‘‘significant threat of harm.’’ As is described above, H.R. 221 includes several protections to ensure that those youth who are permitted to train and work in workplaces in which they are now prohibited are not placed in any significant threat of harm.

CONCLUSION

The Committee agrees with the Department of Labor that the

benefits of facilitating the cultural and religious traditions of the

Amish must be balanced against the safety and welfare of the children. The Committee believes that this legislation strikes an appropriate balance between the cultural and safety issues surrounding

the employment of Amish youth in certain businesses.

SUMMARY

H.R. 221 would amend the Fair Labor Standards Act of 1938 to

allow teenagers to work in businesses where machinery is used to

process wood products if they are: at least 14 years of age but

under the age of 18; a member of a religious sect or division whose

established teachings do not permit formal education beyond the

eighth grade; supervised by an adult relative or an adult who is a

member of the same religious sect or division; not allowed to operate or assist in the operation of power-driven woodworking machines; protected from flying debris or wood particles by a barrier

appropriate to the potential hazard of such wood particles or flying

debris or by maintaining a sufficient distance from machinery in

operation; and protected from excessive levels of noise and sawdust

by personal protective equipment.
11

SECTION-BY-SECTION ANALYSIS

SECTION 1. EXEMPTION

This provision would amend section 13(c) of the Fair Labor

Standards Act of 1938 to specify that in the administration and enforcement of the child labor provisions of the Act, it shall not be

considered oppressive child labor for an individual who is at least

14 but under the age of 18, and is a member of a religious sect or

division thereof whose established teachings do not permit formal

education beyond the eighth grade, to be employed inside or outside places of business where machinery is used to process wood

products. The employment of such individual shall be permitted if

the individual is supervised by an adult relative of the individual

or is supervised by an adult member of the same religious sect or

division as the individual; if the individual does not operate or assist in the operation of power-driven woodworking machines; if the

individual is protected from wood particles or other flying debris

within the workplace by a barrier appropriate to the potential hazard of such wood particles or flying debris or by maintaining a sufficient distance from machinery in operation; and if the individual

is required to use personal protective equipment to prevent exposure to excessive levels of noise and sawdust.

EXPLANATION OF AMENDMENTS

The bill was ordered reported without amendment.

APPLICATION OF LAW TO THE LEGISLATIVE BRANCH

Section 102(b)(3) of Public Law 104–1 requires a description of

the application of this bill to the legislative branch. This bill, H.R.

221, amends the Fair Labor Standards Act to permit certain youth

to perform certain work with wood products. The bill does not prevent legislative branch employees from receiving the benefits of

this legislation.

UNFUNDED MANDATE STATEMENT

Section 423 of the Congressional Budget and Impoundment Control Act (as amended by Section 101(a)(2) of the Unfunded Mandates Reform Act, P.L. 104–4) requires a statement of whether the

provisions of the reported bill include unfunded mandates. This bill

amends the Fair Labor Standards Act to permit certain youth to

perform certain work with wood products. As such, the bill does not

contain any unfunded mandates and decreases federal mandates on

the private sector.

ROLLCALL VOTES

Clause 3(b) of rule XIII of the Rules of the House of Representatives requires the Committee Report to include for each record vote

on a motion to report the measure or matter and on any amendment offered to the measure of matter the total number of votes

cast for and against and the names of the Members voting for and

against.
12
13
14

STATEMENT OF OVERSIGHT FINDINGS AND RECOMMENDATIONS OF

THE COMMITTEE

In compliance with clause 3(c)(1) of rule XIII and clause 2(b)(1)

of rule X of the Rules of the House of Representatives, the Committee’s oversight findings and recommendations are reflected in the

body of this report.

NEW BUDGET AUTHORITY AND CONGRESSIONAL BUDGET OFFICE

COST ESTIMATE

With respect to the requirements of clause 3(c)(2) of rule XIII of

the House of Representatives and section 308(a) of the Congressional Budget Act of 1974 and with respect to requirements of

clause 3(c)(3) of rule XIII of the House of Representatives and section 402 of the Congressional Budget Act of 1974, the Committee

has received the following cost estimate for H.R. 221 from the Director of the Congressional Budget Office:

U.S. CONGRESS,

CONGRESSIONAL BUDGET OFFICE,

Washington, DC, February 11, 1999.

Hon. WILLIAM F. GOODLING,

Chairman, Committee on Education and the Workforce,

House of Representatives, Washington, DC.

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 221, a bill to amend the

Fair Labor Standards Act of 1938 to permit certain youth to perform certain work with wood products.

If you wish further details on this estimate, we will be pleased

to provide them. The CBO staff contact is Christina Hawley Sadoti.

Sincerely,

BARRY B. ANDERSON

(For Dan L. Crippen, Director).

Enclosure.

H.R. 221—A bill to amend the Fair Labor Standards Act of 1938

to permit certain youth to perform certain work with wood

products

H.R. 221 would amend the Fair Labor Standards Act (FLSA) to

permit youths between the ages of 14 and 18 who are members of

a religious sect or division that does not permit formal teaching beyond the eighth grade to be employed in the processing of wood

products. Absent this legislation, certain Amish-owned sawmills

could face fines for child labor law violations. CBO estimates these

fines would be less than $30,000 each year. Therefore, enactment

of this bill would result in a reduction of receipts from such fines,

but the amount is likely to be insignificant. Nevertheless, pay-asyou-go procedures would apply.

H.R. 221 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act (UMRA)

and would not have any significant effects on the budgets of state,

local, or tribal governments.

This estimate was prepared by Christina Hawley Sadoti (federal

cost), Hester Grippando (revenues), Susan Sieg (impact on state,
15

local, and tribal governments), and Ralph Smith (impact on the private sector).

This estimate was approved by Paul N. Van de Water, Assistant

Director for Budget Analysis.

STATEMENT OF OVERSIGHT FINDINGS OF THE COMMITTEE ON

GOVERNMENT REFORM

With respect to the requirement of clause 3(c)(4) of rule XIII of

the Rules of the House of Representatives, the Committee has received no report of oversight findings and recommendations from

the Committee on Government Reform and Oversight on the subject of H.R. 221.

CONSTITUTIONAL AUTHORITY STATEMENT

Under clause 3(d)(1) of rule XIII of the Rules of the House of

Representatives, the Committee must include a statement citing

the specific powers granted to Congress in the Constitution to

enact the law proposed by H.R. 221. The Fair Labor Standards Act

of 1938 has been determined, by the Supreme Court, to be within

Congress’ Constitutional authority. In United States v. Darby, 312

U.S. 100 (1941) and OPP Cotton Mills, Inc., et al. v. Administrator

of Wage and Hour Division of Department of Labor, 312 U.S. 126

(1941), the Supreme Court found that the regulation of hours and

wages of work to be within the scope of Congressional powers

under Article 1, Section 8, Clause 3 of the Constitution of the

United States. H.R. 221 amends the Fair Labor Standards Act of

1938. Because H.R. 221 modifies but does not extend the federal

regulation of wage and hour laws, the Committee believes that the

Act falls within the same scope of Congressional authority as the

Fair Labor Standards Act of 1938.

COMMITTEE ESTIMATE

Clauses 3(d)(2) of rule XIII of the Rules of the House of Representatives requires an estimate and a comparison by the Committee of the costs that would be incurred in carrying out H.R. 221.

However, clause 3(d)(3)(B) of that rule provides that this requirement does not apply when the Committee has included in its report

a timely submitted cost estimate of the bill prepared by the Director of the Congressional Budget Office under section 402 of the

Congressional Budget Act.

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with clause 3(e) of rule XIII of the Rules of the

House of Representatives, changes in existing law made by the bill,

as reported, are shown as follows (new matter is printed in italic

and existing law in which no change is proposed is shown in

roman):
16

SECTION 13 OF THE FAIR LABOR STANDARDS ACT OF

1938

EXEMPTIONS

SEC. 13. (a)***

* * * * * * *

(c)(1)***

* * * * * * *

(6)(A) Subject to subparagraph (B), in the administration and enforcement of the child labor provisions of this Act, it shall not be

considered oppressive child labor for an individual who—

(i) is at least 14 but under the age of 18, and

(ii) is a member of a religious sect or division thereof whose

established teachings do not permit formal education beyond

the eighth grade,

to be employed inside or outside places of business where machinery

is used to process wood products.

(B) The employment of an individual under subparagraph (A)

shall be permitted—

(i) if the individual is supervised by an adult relative of the

individual or is supervised by an adult member of the same religious sect or division as the individual;

(ii) if the individual does not operate or assist in the operation of power-driven woodworking machines;

(iii) if the individual is protected from wood particles or other

flying debris within the workplace by a barrier appropriate to

the potential hazard of such wood particles or flying debris or

by maintaining a sufficient distance from machinery in operation; and

(iv) if the individual is required to use personal protective

equipment to prevent exposure to excessive levels of noise and

saw dust.
(17)

1See H.R. 221, Section 1, at ‘‘(6)(A).’’

2 Id., at ‘‘(6)(A)(ii).’’

3 Id., at ‘‘(6)(B)(i).’’

MINORITY VIEWS

The Fair Labor Standards Act (FLSA), prohibits minors under

the age of 16 from working in manufacturing operations, including

saw mills. The Secretary of Labor (through Hazardous Occupations

Order No. 4) also prohibits minors under 18 years of age from

working in saw mill operations and the logging industry. In addition, Hazardous Occupations Order No. 5 specifically prohibits such

youth from operating power driven wood-working machines. These

protections serve two well known purposes: (1) to ensure that children are not employed in hazardous occupations and (2) to protect

adult workers from unfair competition from child workers who do

not yet have burden of supporting themselves.

H.R. 221 amends the FLSA by permitting 14- through 17-yearolds ‘‘to be employed inside or outside of places of business where

machinery is used to process wood products,’’ 1 occupations in which

their employment would otherwise be prohibited; provided that the

minor ‘‘is a member of a religious sect or division thereof whose established teachings do not permit formal education beyond the

eighth grade’’ 2 and the minor is supervised by an adult relative or

‘‘an adult member of the same religious sect or division’’ 3 as the

minor. H.R. 221 promotes the employment of minors in hazardous

occupations. It invites the displacement of adult workers by minors

who do not yet face the burden of supporting themselves. And it

distinguishes among citizens, advantaging some and

disadvantaging others, on the basis of an individual’s religious beliefs.

SAFETY AND HEALTH CONCERNS

Injury data collected over several decades consistently show that

the lumber and wood products industry is particularly hazardous

work for adults, let alone children. The 1996 occupational fatality

rate of 25.6 work-related deaths per 100,000 workers was more

than five times the national average ‘‘all private industry’’ rate of

5.1 per 100,000 workers and had actually increased over the 1995

rate. The occupational fatality rate in the lumber and wood products industry is higher than in either the construction industry or

the trucking and warehousing industry. In 1996, 203 occupational

fatalities occurred in the lumber and wood products industry. The

frequency of all non-fatal injuries was almost twice as high in the

lumber and wood products industry (14.2 per 100 full-time workers) as the national average for all industries (7.4 for every 100

workers).
18

Even for those workers who do not operate power-driven equipment, saw mills present significant occupational risks. The Occupational Safety and Health Administration has documented examples

of workers who were crushed by falling loads, run over by frontend loaders, caught under a fork lift, and injured by rolling logs.

One witness, testifying on behalf of this legislation, told of how he

lost several fingers when, during a moment of inattention, he carelessly set his hand on a conveyor belt and the belt ran his hand

into a saw.

Inexperience, smaller size, and lack of maturity all serve to make

the potential risks faced by minors even greater than they are for

adults. It is unreasonable to expect a fourteen year-old to maintain

the kind of continuous safety concern we expect of adults.

The Department of Labor opposes the bill based on these safety

concerns: ‘‘The Department of Labor is concerned that these conditions would not adequately protect the children’s safety. Adult

presence in the workplace would not be able to protect children

from the split-second mistake that could cost them a finger, hand,

or worse. Preventing children from operating machinery would still

leave them at risk from forklifts, front-end loaders, falling loads,

and rolling logs.’’

To ensure the Committee learns of injuries or fatalities that result from this legislation, Representative Kildee offered an amendment during the markup to require that employers report work-related injuries and deaths occurring to minors employed pursuant to

H.R. 221 to the Department of Labor. The amendment is based

upon a similar requirement contained in legislation enacted in the

104th Congress permitting 16- and 17-year-olds to load certain

balers and compactors, Public Law 104–174, and is intended to ensure that specific information is readily available regarding the impact of this legislation on the health and safety of minors. If no injuries or fatalities occur to minors as a result of being employed inside or outside places of business where machinery is used to process wood products, the amendment places no additional burdens

upon employers. However, in the event that minors are injured or

killed as a result of the enactment of H.R. 221, Mr. Kildee’s amendment, if adopted, would better enable policy makers to identify

risks and to craft improvements to address those risks.

The Occupational Safety and Health Act already requires the reporting of injuries or fatalities on the job. However, as Mr. Kildee

pointed out in Committee, identifying Amish youth on the basis of

OSHA reports would not be possible. The purpose of Mr. Kildee’s

amendment is to ensure there is accurate, readily available information regarding the impact of H.R. 221 on the health and safety

of minors. The Majority contends that Amish saw mills and woodworking shops should not be singled out for additional reporting requirements ‘‘when there is no reasonable basis, such as improved

safety, shown for this additional requirement.’’

In fact, the amendment did not single out Amish saw mills or

woodworking shops. H.R. 221 singles out the Amish be permitting

employers, regardless of whether they are Amish, to employ Amish

youth. Mr. Kildee’s amendment only seeks to ensure that policy

makers are sufficiently informed of the extent to which the newly

authorized employment, in practice, may pose risks to the health
19

4See section 6(g) of the Fair Labor Standards Act of 1938, 29 U.S.C. 206(g).

and safety of those youth. Clearly, the absence of such information

adversely affects the ability of policy makers to develop effective

policies to improve the safety of minors. As Mr. Kildee stated during the markup, ‘‘If minors are injured or killed as a result of enactment of H.R. 221, we have a responsibility to ensure that we are

both aware of the fact and that we have the information necessary

to develop the appropriate legislative response.’’

DISPLACEMENT OF ADULT WORKERS

H.R. 211 encourages the displacement of adult workers by hiring

minors. On the basis of the child’s religious beliefs, H.R. 221 permits certain children, as young as 14 years old, to be employed in

occupational settings in which all other children have been excluded for more than 60 years. These children, unlike the adult

workers with whom they will compete for jobs, do not yet face the

burden of supporting themselves and a family. Rather, they continue to live in their parents’ home and their financial needs remain the responsibility of their parents. As a consequence, these

young workers are likely to be willing and able to work for substantially less money than the adults with whom they compete.

This unfortunate aspect of the legislation is exacerbated by provisions of the Fair Labor Standards Act that permit the employment

of those under 20-years of age for up to ninety days at $4.25 an

hour, 90 cents an hour less than the minimum wage applicable to

the overwhelming majority of adult workers.4

An amendment offered in Committee by Ms. Woolsey sought to

mitigate the unfair impact that this legislation will have on those

adults who are not Amish by requiring that minors employed pursuant to H.R. 221 be paid at least the minimum wage. Defeated on

a party-line vote, the Majority contends ‘‘there is no reason for singling out the Amish as the only employers who would not be allowed to use it [the sub-minimum wage].’’ First, the Majority misrepresent their own bill. H.R. 221 permits any employer to employ

Amish youth ‘‘inside or outside places of business where machinery

is used to process wood products.’’ Notwithstanding the Majority’s

disingenuous description of the bill, Ms. Woolsey’s amendment does

not discriminate against Amish employers, it benefits Amish youth.

Second, Amish youth are the only one’s for whom the protections

of the child labor laws are being waived. If Amish youth are to be

treated as adults for purposes of the child labor laws, they should

also be treated as adults for purposes of the minimum wage law.

There are few, if any, employed in the lumber and wood products

industry today at the minimum wage. For example the average

hourly earnings for production workers in saw mills and planing

mills in 1998 was $11.10 an hour, more than twice the minimum

wage. There are even fewer employed at the sub-minimum wage.

H.R. 221 expands the pool of eligible workers who may be employed at the sub-minimum wage. Further, by expanding that pool

to children who are not self-supporting, it greatly increases the

likelihood that the newly eligible workers will be willing to work

for minimum or sub-minimum wages. This fact is not lost on the
20

5Lee v. Weisman, 505 U.S. 577, 585 (1992) (applying Lemon). 6 A religious exemption would only meet the ‘‘clear secular purpose’’ if it has the purpose and

effect of alleviating significant governmental interference with a religious organization’s ability

to ‘‘define and carry out its religious mission.’’ Corporation of the Presiding Bishop of the Church

of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 335, 339 (1987). See page 2, U.S.

Department of Justice letter attached, which finds that there is insufficient support basis for

determining H.R. 221 significantly interferes with the ability of the Amish to ‘‘define and carry

out their religious missions.’’

Amish, themselves, as was made clear in a National Public Radio

report on May 30, 1998:

NPR Reporter: But some Amish, like this eighteen-yearold who works in his father’s wood shop making gazebos,

admit that there are far less spiritual reasons for taking

on the Labor Department.

Unidentified Eighteen-Year-Old: There needs to be cut—

cuts in the pricing somewhere and the children really help

to do the family way of doing things.

NPR Reporter: You can be more competitive if you have

kids helping out in the shops?

Eighteen-Year-Old: To an extent, that’s the main point.

Not only are adult workers likely to be displaced as a consequence of enactment of H.R. 221, but the likely willingness of minors to work for lower wages than adults would otherwise accept

is likely to suppress the wages adult workers will receive. In our

view, displacing adult workers with minors is bad policy.

CONSTITUTIONAL ISSUES

The First Amendment provides that ‘‘Congress shall make no law

respecting and establishment of religion.’’

The Supreme Court has developed two clear and well known

tests to determine whether a statute may violate the establishment

clause. The first, initially enunciated in Lemon v. Kurtzman, 403

U.S. 602 (1971), establishes a three pronged approach to the issue.

To survive an establishment clause challenge, the law must: ‘‘(1)

reflect a clear secular purpose; (2) have a primary effect that neither advances nor inhibits religion; and (3) avoid excessive government entanglement with religion.’’ 5 The test established in Lemon

was subsequently limited by Larson v. Valente, 456 U.S. 228 (1982)

which established a more stringent test: ‘‘[W]hen we are presented

with a state law granting a denominational preference, our precedents demand that we treat the law as suspect and that we apply

strict scrutiny in adjudging its constitutionality.’’ (456 U.S. 246).

Under Larson, a law granting a denominational preference must be

‘‘closely fitted’’ to the furtherance of a ‘‘compelling government interest.’’ (456 U.S. 255).

Advancing the employment opportunities of minors and adults of

a specific religious persuasion does not obviously embody ‘‘a clear

secular purpose.’’ 6 H.R. 221 also requires the Department of Labor

to make the determination that a particular group ‘‘has established

teachings that do not permit formal education beyond eighth

grade’’ and to then make a determination as to whether an employee, be it a minor or the minor’s supervisor, is a bona fide member of that religious group. In effect, in order to administer this legislation, the Department of Labor must inquire of all workers re-
21

7 Church of Jesus Christ Latter-Day Saints v. Amos, 483 U.S. 327, 338 (1987) (emphasis in

the original).

garding their religious affiliation, if any. This appears to invite ‘‘excessive government entanglement with religion.’’

Leaving aside those issues, however, it appears obvious that, by

affording employment opportunities to adults and minors whose religious tenets prohibit formal education beyond the eight grade,

while denying similar opportunities to all others, H.R. 221 has a

primary effect of advancing one set of religious beliefs while inhibiting the religious beliefs of others.

The Majority cite Church of Jesus Christ of Latter-Day Saints v.

Amos (483 U.S. 327 (1987)) for the contention that H.R. 221 is permissible within the establishment clause. As the majority states,

Amos involved a challenge to the exemption for religious organizations from Title VII’s prohibition on discrimination on the basis of

religion. We strongly concur in the views expressed by the Department of Justice (attached at the end of these views) that H.R. 221

does not appear to satisfy the test for permissible accommodations

that would permit it to be sustained in accordance with the test established under Lemon. However, as Amos makes clear, Larson,

not Lemon, is the applicable test to H.R. 221. Whereas Title VII’s

religious exemption, at issue in Amos, applies to all religions, the

religious exemption created by H.R. 221 applies only to ‘‘a religious

sect or division thereof whose established teachings do not permit

formal education beyond the eight grade.’’ As the Court stated in

Amos:

* * * Larson indicates that laws discriminating among religions are subject to strict scrutiny, and that laws ‘‘affording a uniform benefit to all religions’’ should be analyzed

under Lemon.7

If H.R. 221 is difficult to justify under the more lenient test imposed by the Lemon decision, it is even more difficult to justify

under the stricter Larson test. The only compelling interest that is

identifiable basis of the legislative language is to promote the employment of certain youth ‘‘inside and outside of places of business

where machinery is used to process wood products.’’

The Majority contends in this report that H.R. 221 is essential

if the Amish belief in ‘‘learning by doing’’ is to be preserved. In fact,

however, Amish are employed in a wide range of occupations. They

work in construction, in machine shops, in retail stores, and in offices in addition to working on farms and in saw mills and woodworking shops. If, in fact, the child labor laws have become an impingement on the Amish belief in ‘‘learning by doing’’ as Amish

youth begin to take up new kinds of employment, why are the child

labor restrictions only lifted as they apply to businesses where machinery is used to process wood products?

Nor can it be said that H.R. 221 has been ‘‘closely fitted’’ to this

compelling government interest. Historically, Amish youth have

been employed on a full-time basis from the age of 14 on the family

farm. However, farming opportunities have not kept pace with the

growth in population and as a consequence Amish must increasingly find other forms of employment. No evidence has been presented to the Committee that the new jobs can only or must be ex-
22

clusively found in businesses where machinery is used to process

wood products. Indeed, the fact that power machinery is used at all

represents a compromise of traditional Amish beliefs. Rather, the

core value that would seem to be at stake is ability of the Amish

to employ their youth in a ‘‘community separate and apart from the

world and world influence.’’ The question to be asked with regard

to H.R. 221 is whether it is closely fitted to further this end. The

answer is that it is not.

H.R. 221 permits an Amish youth to be employed in any business

where machinery is used to process wood so long as the youth is

supervised by an adult relative or another adult member of the

same religious sect or division. A business of 5,000 people, none of

whom are Amish, would be able to employ Amish youth so long as

it also employed one additional person of the same religious sect

to supervise the youth. In short, H.R. 221 is not closely tailored to

provide a limited exception for Amish family businesses. Rather, it

seems intentionally designed to promote the employment opportunities of those of one religious belief over those who hold different

beliefs.

If the compelling interest that H.R. 221 is suppose to serve is not

readily identifiable and if H.R. 221 is not closely fitted to that interest, it is no surprise. No hearings were held on H.R. 221. Only

a single hearing has been held on this legislation and that in the

last Congress. The only witnesses at that hearing were the sponsor

of the legislation, the Chairman of the Old Order Amish Steering

Committee, and an Amish sawmill owner. No constitutional scholars presented testimony before the committee and virtually no testimony was received concerning the constitutional problems provoked by this legislation. In a report that was circulated but never

filed to accompany the predecessor to H.R. 221, H.R. 4257, the Majority stated:

The letter from the Deputy Secretary of Labor also conveyed, without elaboration, ‘‘that the Department of Justice has serious concerns about the constitutionality of the

proposed legislation as drafted.’’ Neither the Department

of Justice nor anyone else has previously raised this objection.

The Majority has, of course, failed to provide the Department of

Justice, or anyone else, with an opportunity to raise this objection.

When it was learned that H.R. 221 was being scheduled for markup in the Committee, Mr. Owens, the ranking Democrat on the

subcommittee on workforce protections, wrote the Chairman ‘‘to

urge that a hearing be held in order that the Committee may consider the constitutional implications of H.R. 221 before the bill is

marked-up.’’ Regrettably, the Majority chose not to act upon Mr.

Owens’ request and, as a consequence, whether H.R. 221 furthers

a compelling interest and whether it is closely fitted to that interest have never been seriously considered by the Committee.

There are, of course, two other obviously compelling interests

also at stake: protecting the health and safety of minors and protecting adults from unfair competition from child labor. If the Majority is of the view that supervision by specific adults, the use of

personal protective equipment, the prohibition against operating
23

8 Brock v. Wendell’s Woodwork, Inc., 867 F.2d 196, 198–9.

machinery, and the requirement that there be a barrier or adequate distance to protect minors from flying debris are fully sufficient to protect the health and safety of minors, then there is no

basis for restricting this legislation to only those who are members

of certain religious sects. The fact that H.R. 221 only permits those

of a certain religion to be employed in such hazardous settings as

saw mills raises obvious constitutional problems.

Issues similar to those raised by H.R. 221 were raised in Brock

v. Wendell’s Woodwork Inc. (867 F.2d 196 (1989)). In that case,

members of the Shiloh True Light Church of Christ provided home

schooling for their children for one-half of a day and the children,

some as young as nine and ten, were enrolled in ‘‘apprenticeship

programs’’ for the other half. The apprenticeship programs included

work at a woodworking enterprise and a large masonry contractor.

The Secretary of Labor brought an action for violation of the child

labor laws. The church members claimed an exemption from those

laws under the free exercise clause of the First Amendment. The

court found:

* * * [T]hat the members of the True Light Church are

sincerely convinced that they are rearing their children in

a manner dictated by their religious beliefs. They sincerely

believe that vocational training has spiritual as well as

secular worth. There is nothing in the federal statutes,

however, that prevents church members from arranging

for some instruction of their children in vocational pursuits.

When the means adopted to serve that end consist of

employing children in commercial enterprises that compete

with other employers fully subject to the labor laws, however, the religious beliefs of the church members cannot

immunize the employers from enforcement of the federal

statutes * * *

* * * [W]e may not ignore the interest of competing employers who comply with the relevant labor laws and feel

the need to be free from competition with employers who

do not comply.

It is no answer to this concern that the church members

now concede that minimum wages should have been paid

to the children. There is nothing to indicate that competing employers employ experienced adults at minimum

entry level wages.

In short, the interest of the United States in the evenhanded application and enforcement of its labor laws must

prevail over the interest of church members who attempt

to transport a vocational training program into industrial

and commercial environments where children, save for

their ages, are indistinguishable from other employees.8

In a case involving the Amish, Wisconsin v. Yoder, 406 U.S. 205

(1972), the U.S. Supreme Court found that Wisconsin could not impose liability on Amish parents for failure to comply with the

State’s compulsory school attendance law. The Court held, ‘‘that
24

secondary schooling, by exposing Amish children to worldly influences in terms of attitudes, goals, and values contrary to beliefs,

and by substantially interfering with the religious development of

the Amish child and his integration into the way of life of the

Amish faith community at the crucial adolescent stage of development, contravenes the basic religious tenets and practice of the

Amish faith * * *’’. (406 U.S. 218). The Court further concluded,

‘‘that accommodating the religious objections of the Amish by forgoing one, or at most two, additional years of compulsory education

will not impair the physical or mental health of the child, or result

in an inability to be self-supporting or to discharge the duties and

responsibilities of citizenship, or in any other way materially detract from the welfare of society.’’ (406 U.S. 233 (emphasis added)).

Therefore, the State’s interest in its system of compulsory education was not sufficiently compelling to be sustained in the face

of the challenge that it violated the free exercise clause of the First

Amendment.

In determining that the State’s interest was not sufficiently compelling, the Court noted that compulsory education laws reflect

‘‘the movement to prohibit most child labor under age 16 that culminated in the provisions of the Fair Labor Standards Act of 1938.

* * * [T]he 16-year education limit reflects, in substantial measure, the concern that children under that age not be employed

under conditions hazardous to their health, or in work that should

be performed by adults.’’ (406 U.S. 228). The Court went on to note

that the case before it ‘‘is not one in which any harm to the physical or mental health of the child or to the public safety, peace,

order, or welfare has been demonstrated or may be properly inferred.’’ Unlike Wisconsin’s compulsory education law, however, one

of the principal issues raised by H.R. 221 is the health and safety

of minors. A decision that the Majority selectively cites to buttress

H.R. 221, Wisconsin v. Yoder serves only to further call into question the constitutionality of the legislation.

We believe that the significant threat to the safety of Amish minors raised by the Department of Labor, and the serious constitutional issues created by H.R. 221, require us to oppose this dangerous exemption to our country’s most critical child protection law.

DEPARTMENT OF JUSTICE, OFFICE OF LEGISLATIVE AFFAIRS, Washington, DC, February 9, 1999.

Hon. WILLIAM F. GOODLING,

Chairman, Committee on Education and the Workforce, House of

Representatives, Washington, DC.

DEAR MR. CHAIRMAN: This letter sets forth the views of the Department of Justice on H.R. 221, a bill to amend the Fair Labor

Standards Act of 1938 (‘‘FLSA’’) to permit certain minors to perform certain work with wood products. Our views necessarily are

preliminary, because of several factual questions (discussed below)

as to which we do not have sufficient information. Based on the information available to us at this time, however, H.R. 221 as drafted

would, at the very least, raise serious concerns under the Establishment Clause of the First Amendment to the Constitution.
25

1 In Texas Monthly, for example, the Court invalidated a sales-tax exemption provided exclusively to religious periodicals. The plurality reasoned that ‘‘when government directs a subsidy

exclusively to religious organizations that is not required by the Free Exercise Clause and that

either burdens nonbeneficiaries markedly or cannot reasonably be seen as removing a significant state-imposed deterrent to the free exercise of religion, * * * it ‘provide[s] unjustifiable

awards of assistance to religious organizations’ and cannot but ‘conve[y] a message of endorsement’ to slighted members of the community.’’ 489 U.S. at 15 (quoting Corporation of Presiding

Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 348 (1987) (O’Connor, J., concurring in the judgment)). A government may, of course, provide such benefits to religious adherents when such persons are included in a broader class of similarly situated beneficiaries, defined in secular terms and reflecting some legitimate secular aim. See Texas Monthly, 489 U.S. at 15–17 (plurality opinion) (scope of beneficiary class must reflect legitimate ‘‘secular aim,’’ and not have the ‘‘purpose or effect of sponsoring certain religious tenets or religious

belief in general’’).

H.R. 221 would amend the FLSA’s provisions on child labor to

permit the employment of certain minors ‘‘inside or outside places

of business where machinery is used to process wood products.’’

H.R. 221, § 1 (proposing 29 U.S.C. § 213(c)(6)(A)). The FLSA prohibits minors under 16 years of age from working in manufacturing, including sawmill operations. See 29 U.S.C. § 212(a) (prohibiting shipment and delivery of goods produced in establishment employing ‘‘any oppressive child labor practice’’); id § 203 (defining

‘‘oppressive child labor’’). In addition, as permitted by the FLSA,

see id., the Secretary of Labor has by order designated occupations

in logging and sawmill operations as ‘‘hazardous occupations’’ and

has prohibited the employment of persons under 18 years of age in

such operations. 29 C.F.R. § 570.54 (Hazardous Occupations Order

No. 4). H.R. 221 provides that it shall not be considered an oppressive child labor practice to employ in a sawmill operation an individual who is between the ages of 14 and 18 and who ‘‘is a member

of a religious sect or division thereof whose established teachings

do not permit formal education beyond the eighth grade.’’

It is a ‘‘principle at the heart of the Establishment Clause’’ that

the government ‘‘should not prefer * * * religion to irreligion.’’

Board of Educ. of Kiryas Joel Village School Dist. v. Grumet, 512

U.S. 687, 703 (1994); see also Wisconsin v. Yoder, 406 U.S. 205,

220–21 (1972) (noting that ‘‘an exception from a general obligation

of citizenship on religious grounds may run afoul of the Establishment Clause’’). Thus, as a general rule the government may not exempt religious adherents from obligations by which nonadherents

must abide; instead, exemptions from otherwise generally applicable prohibitions must be drawn on a religion-neutral basis in order

to pass muster under the Establishment Clause. See, e.g., Texas

Monthly, Inc. v. Bullock, 489 U.S. 1 (1989); Kiryas Joel, 512 U.S.

at 703–05.1

The exemption in H.R. 221 would permit children in certain religious sects or divisions to be employed in places of business where

other children may not be employed. This preference for religion

over ‘‘irreligion’’ would violate the Establishment Clause, unless it

could be defended as a permissible accommodation of religious exercise. A statutory exception exclusively for religion may be a permissible accommodation where, inter alia, the exception has the

purpose and effect of ‘‘alleviat[ing] significant governmental interference with the ability of religious organizations to define and

carry out their religious missions,’’ Corporation of the Presiding

Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos,

483 U.S. 327, 335, 339 (1987), or of otherwise removing ‘‘a signifi-
26

2See Brock v. Wendell’s Woodwork, Inc., 867 F.2d 196, 198 (4th Cir. 1989) (describing another

religious sect that ‘‘sincerely believe[s] that vocational training [by members of the sect] has

spiritual as well as secular worth’’).

cant state-imposed deterrent to the free exercise of religion,’’ Texas

Monthly, 489 U.S. at 15 (plurality opinion); see also Kiryas Joel,

512 U.S. at 705 (noting that ‘‘the Constitution allows the State to

accommodate religious needs by alleviating special burdens’’ on religious belief and practice) (emphasis added).

It is not apparent, based on the limited facts of which we are

aware, how H.R. 221 would satisfy this part of the test for permissible accommodations. As we understand it, the Amish religion forbids or strongly discourages formal education beyond the eighth

grade. Accordingly, the Supreme Court has held that states must,

in certain circumstances, permit Amish children to be excused from

compulsory educational requirements for older teenagers, Wisconsin v. Yoder, supra. This accommodation, as we understand it, alleviates what otherwise would be a governmentally imposed burden

on the exercise of the Amish religion. We are not aware of any congressional finding or understanding that the Amish religion also requires or strongly encourages its minors to work in sawmills. It

may be that the Amish religion encourages or requires that children work alongside other members of the community, in order to

instill in the children certain work ethics and values of self-reliance

that are an important part of an Amish education.2 And it also

may be the case that many adults in Amish communities work in

sawmills. But, unless it is the case that the FLSA prohibition on

employing children in sawmills significantly burdens the religious

exercise of those within the community, or significantly interferes

with the ability of the Amish ‘‘to define and carry out their religious missions,’’ Amos, 483 U.S. at 335—as opposed to simply imposing an economic burden on the Amish community—the exemption would not appear to satisfy the requirement of the accommodation doctrine that the preference for religion alleviate a significant government-imposed burden on religious mission or exercise.

Federal law does not, of course, wholly prevent the Amish from instructing their children in vocational pursuits—it merely prohibits

children from working in a discrete number of dangerous environments. Whether this imposes a burden on religion, and if so,

whether and under what circumstances that burden is ‘‘significant’’

or ‘‘special,’’ will depend upon factual circumstances that we are in

no position to evaluate.

Moreover, assuming that the FLSA child-labor prohibition does

impose a significant burden on religious exercise in some cases, any

statutory exemption should be crafted in a manner that is directly

related to the alleviation of that burden. As presently drafted, a

necessary condition for invoking the exemption from the FLSA in

H.R. 221 would be a minor’s connection to a religious sect or division with certain prohibitions on formal education; the exemption

therefore would not be tailored to the question whether or not the

FLSA’s child labor prohibitions would, in any particular case, impose a burden on religious exercise, or on the community’s religious

mission, where a minor already has been exempted from certain of

a state’s compulsory education requirements.
27

3Of course, if a minor or a religious community were able to demonstrate that the child labor

provisions of the FLSA imposed a substantial burden on religious exercise, then the Religious

Freedom Restoration Act (‘‘RFRA’’) would require the government to grant an exemption or otherwise alleviate such burden, unless the government could demonstrate that imposition of the

burden is in furtherance of a compelling governmental interest and is the least restrictive means

of furthering that compelling governmental interest. 42 U.S.C. § 2000bb–1. See also id.

§ 2000bb–2(1) (RFRA applies to any ‘‘branch, department, agency, instrumentality, and official

(or other person acting under color of law) of the United States’’); id. § 2000bb–3(a) (RFRA ‘‘applies to all Federal * * * law, and the implementation of that law, whether statutory or otherwise’’); In re Young 141 F.3d 854, 857–63 (8th Cir.) (RFRA constitutional as applied to the federal government and to federal law), cert, denied sub nom. Christians v. Crystal Evangelical

Free Church, 119 S. Ct. 43 (1998). Cf. Wendell’s Woodwork, 867 F.2d at 198–99 (applying analogous test where challenge to child labor laws was brought under the Free Exercise Clause);

Reich v. Shiloh True Light Church of Christ 85 F.3d 616 (mem.), 1996 WL 228802, at *3 (4th

Cir. 1996) (same).

Because we lack sufficient information, we are unable to conclude with any certainty whether the child labor laws relating to

sawmills significantly burden Amish religious exercise.3 Even if

such laws do impose such a significant burden, however, H.R. 221

would raise two other potential Establishment Clause problems.

First, the exemption would be triggered, not by an individual’s religious belief or exercise, but instead, by an individual’s membership

in a certain religious sect or division. The Establishment Clause

prohibits the government—except upon an extraordinary showing—

from favoring certain religious sects, or favoring religious belief

that comports with that of established religious sects. See Larson

v. Valente, 456 U.S. 228 (1982); Kiryas Joel, 512 U.S. at 706–07

(‘‘whatever the limits of permissible legislative accommodations

may be, * * * it is clear that neutrality as among religions must

be honored’’); See also Frazee v. Illinois Department of Employment

Security, 489 U.S. 829, 834 (1989) (‘‘Undoubtedly, membership in

an organized religious denomination, especially one with a specific

tenet forbidding members to work on Sunday, would simplify the

problem of identifying sincerely held religious beliefs, but we reject

the notion that to claim the protection of the Free Exercise Clause,

one must be responding to the commands of a particular religious

organization.’’). It may be that all or most of the minors who would

satisfy the proposed exemption do belong to particular religious

sects or divisions. But the Constitution does not permit the government to make such affiliation a condition of receiving preferential

treatment. The exemption, if it is to pass constitutional muster,

must at the very least be extended to cover other persons who can

make a sincere claim that their religious exercise is significantly

burdened by the child labor law at issue but who do not belong to

designated or defined religious sects or divisions. See e.g., Wilson

v. NLRB, 920 F.2d 1282 (9th Cir. 1990), cert denied, 505 U.S. 1218

(1992); Davis v. State, 451 A.2d 107, 112–14 (Md. 1982); Dalli v.

Board of Educ., 267 N.E. 2d 219, 223 (Mass. 1971). Moreover, insofar as the exemption is designed to relieve a burden on individuals’

religious exercise, there would not appear to any grounds for extending the exemption to cover members of defined sects or divisions who do not sincerely believe the relevant tenets of those sects

or divisions.

Second, even if the exemption would lift a significant (or ‘‘special,’’ Kiryas Joel, 512 U.S. at 705) government-imposed burden on

religion, nevertheless the exemption might raise serious, independent constitutional concerns were it to result in any significant
28

4For related discussion in the context of Free Exercise claims, see Prince v. Massachusetts,

321 U.S. 158, 166–67 (1944) (‘‘The right to practice religion freely does not include liberty to

expose * * * the child * * * to ill health or death.’’); id. at 170–71 (rejecting Free Exercise challenge to child labor law restriction); Yoder, 406 U.S. at 230 (emphasizing in the Free Exercise

context that ‘‘[t]his case, of course, is not one in which any harm to the physical or mental

health of the child or to the public safety, peace, order, or welfare has been demonstrated or

may be properly inferred’’); id. at 234 (reemphasizing that ‘‘[t]he record strongly indicates that

accommodating the religious objections of the Amish by forgoing one, or at most two, additional

years of compulsory education will not impair the physical or mental health of the child’’) id.

at 233–34 (‘‘To be sure, the power of a parent, even when linked to a free exercise claim, may

be subject to limitation under Prince if it appears that parental decisions will jeopardize the

health or safety of the child’’). See also Wendell’s Woodwork, 867 F.2d at 199 (in addition to

the interest in protecting children’s health, ‘‘we may not ignore the interest of competing employers who comply with the relevant labor laws and feel the need to be free from competition

with employers who do not comply’’). 5See also, e.g., County of Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573, 591

(1989) (quoting Everson v. Board of Educ., 330 U.S. 1, 15–16 (1947)) (‘‘Neither a state nor the

Federal Government may * * * pass laws which aid one religion, aid all religions, or prefer one

religion over another. Neither can force nor influence a person to go to or to remain away from

church against his will or force him to profess a belief or disbelief in any religion. No person

can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance.’’); Employment Division v. Smith, 494 U.S. 872, 877 (1990) (the government ‘‘may not compel affirmation of religious belief, punish the expression of religious doctrines

it believes to be false, impose special disabilities on the basis of religious views or religious status or lend its power to one or the other side in controversies over religious authority or

dogma’’).

threat of harm to the health of minors. The Court has reasoned

that a religious accommodation may be constitutionally problematic

if it ‘‘burdens nonbeneficiaries markedly.’’ Texas Monthly, 489 U.S.

at 15 (plurality opinion); see also Estate of Thornton v. Caldor, Inc.,

472 U.S. 703, 709–10 (1985) (invalidating religious preference that

did not lift government-imposed burden and that imposed ‘‘significant’’ and ‘‘substantial’’ burdens on nonbeneficiaries). We do not

have sufficient information to determine whether the sponsors intend that the ‘‘beneficiaries’’ of the exemption include the exempted

minors themselves. However, at least insofar as Congress’s principal intent is to alleviate a significant burden on the Amish religious communities’ ability to ‘‘define and carry out their religious

missions,’’ Amos, 483 U.S. at 335—rather than to alleviate a significant burden on the religious exercise of Amish minors, as

such—then the constitutional analysis may well be affected by any

resulting threat of harm to the health of the exempted minors.4

Finally, we should note one additional concern that the proposal

would raise, even if the basic exemption were a permissible accommodation. The proposal would permit an exemption for child labor

in sawmill operations only where, inter alia, ‘‘the individual is supervised by an adult relative of the individual or is supervised by

an adult member of the same religious sect or division as the individual.’’ Proposed § 213(c)(6)(B)(i). This would, in essence, require

sawmill operations to hire, as supervisors of the excepted minors,

‘‘member[s] of the same religious sect or division as the [minors].’’

The Religion Clauses of the First Amendment prohibit the government from requiring such sect-based discrimination, and, more generally, from establishing religious tests as a condition of employment. See Larson; McDaniel v. Paty, 435 U.S. 618 (1978); Torcaso

v. Watkins, 367 U.S. 488, 492–93 (1961).5

Thank you for the opportunity to present our views on this matter. If we may be of additional assistance, we trust that you will

not hesitate to call upon us. We also stand prepared to assist the

Department of Labor in further discussions on these issues. The

Office of Management and Budget has advised that there is no ob-
29

jection from the standpoint of the Administration’s program to the

presentation of this report.

Sincerely,

DENNIS K. BURKE, Acting Assistant Attorney General.

cc: The Honorable William Clay, Ranking Minority Member.

WILLIAM L. CLAY. DALE E. KILDEE. MAJOR R. OWENS. PATSY T. MINK. LYNN WOOLSEY. CAROLYN MCCARTHY. HAROLD E. FORD, Jr.

DAVID WU. GEORGE MILLER. DONALD M. PAYNE. ROBERT E. ANDREWS. BOBBY SCOTT. CARLOS ROMERO-BARCELO ́.

RUBE ́ N HINOJOSA. JOHN F. TIERNEY. LORETTA SANCHEZ. DENNIS J. KUCINICH. RUSH HOLT.

Æ