Child’s Play: The Case Against the Department of Labor for Its Failure to Protect Children Working on America’s Tobacco Farms

Children are not allowed to purchase cigarettes, yet they may legally work on the fields that produce the tobacco for those cigarettes. This anomaly can be traced back to the passage of the Fair Labor Standards Act (FLSA) in 1938 when the original exemption for agricultural laborers was first carved out. The largely outmoded ideology that all farm work is wholesome fueled the legislature in 1938 to fight against a broad application of the minimum wage, overtime, and child labor provisions to the agricultural industry. This created a sharp disconnect between the protections provided to children working in non-agricultural employment and those working in agriculture. Today, the agricultural regulations remain unchanged.In 2011, the Department of Labor (DOL) resolved to correct this discrepancy in the law and specifically sought to forbid the employment of child farm workers in tobacco production. However, the DOL abandoned its plans for revision, conceding to pressure from Congress and farm representatives who feared the revisions would alter farming norms and negatively impact family-owned farms. Because of the DOL's decision, children, some as young as twelve, continue to legally work on tobacco farms. This Comment argues that the DOL shirked its statutory responsibility under the FLSA and acted arbitrarily and capriciously in its decision not to revise the current agricultural provisions."There can be no keener revelation of a society's soul than the way in which it treats its children."1 "A democratic society rests, for its continuance, upon the healthy, well-rounded growth of young people into full maturity as citizens, with all that implies."2INTRODUCTIONIf there is any truth to Nelson Mandela's contention that humanity can judge a society by the way it treats its children, then every American should be concerned about the plight of children working on America's tobacco farms today. The United States justifiably prides itself on the expansive legal protections it has developed to protect workers of all ages. However, some glaring exceptions persist even in the twenty-first century.3 In the agricultural field, young children currently working on tobacco farms are subjected to working conditions that harken back to the nineteenth century4-a situation fully permitted under applicable laws.5 Similar to black lung disease that children developed from working in mines,6 child laborers on tobacco farms suffer from acute tobacco poisoning.7 Children on tobacco farms are exposed to harmful pesticides, face possible dismemberment from dangerous tools, and sustain serious injuries from lifting heavy loads and climbing barn rafters to hang the tobacco plants for drying.8 These conditions continue despite recent evidence showing that children who work on these farms are particularly vulnerable to tobacco-related diseases and other risks.9The enactment of the Fair Labor Standards Act (FLSA) in 1938 established, for the first time, a federal law outlining a general ban on child labor.10 The FLSA forbids the use of "oppressive child labor"11 in commerce or in the production of goods for commerce.12 The term "oppressive child labor" is described as the employment of a child who does not meet the minimum age required by the FLSA.13 Yet, the FLSA defines "oppressive child labor" differently based upon whether the occupation is considered agricultural14 or non-agricultural work.15Defining "oppressive child labor" differently for agricultural and non-agricultural occupations resulted in diminished protections for child agricultural workers. For all industries except agriculture, "oppressive child labor" means the employment of any child under the age of sixteen who engages in any activity or occupation, and any child between the ages of sixteen and eighteen who engages in work that the Secretary of Labor ("Secretary") deems to be "particularly hazardous."16 By contrast, Congress reduced the minimum working age to twelve for minors working in agricultural jobs17 and prohibited children under the age of sixteen from working in an occupation the Secretary deemed to be "particularly hazardous. …