A guide to FLSA’s agricultural child labor rules

At a presentation sponsored by the National Agricultural Law Center, lawyer Audry Thompson from the Penn State Center for Agricultural & Shale Law discussed the Fair Labor Standards Act (FLSA) regulations for minors employed on farms.

Passed in 1938, the FLSA established federal minimum standards for child labor. The FLSA is enforced by the Department of Labor (DOL), which issues regulations that provide specific details about how the statute applies to different work situations.

FLSA established specific agricultural provisions for child labor including age requirements, hazardous job restrictions and work hour limitations. These provisions are generally more permissive than the non-agricultural ones.

While her presentation focused on FLSA, Thompson said, “I think it’s really important to note that the federal [standard] is a floor. Many states may and actually do come in and have restrictions much higher than these federal regulations and statutes, but that understanding – what the federal law is – can be helpful to understand.”

What is the Definition of Agriculture Under FLSA?

When employing people under age 18 under the agricultural provision of FLSA, it’s important to meet the definition of an agricultural enterprise. There are two categories that meet the criteria: primary agriculture and secondary agriculture.

“Primary agriculture is what most people think of when they think of farming,” said Thompson. This includes farming in all its branches; cultivation and tillage of the soil; dairying, production, cultivation, growing and harvesting of agricultural or horticultural commodities; and raising livestock, bees, fur-bearing animals or poultry.

Secondary agriculture covers activities that look and feel like agriculture but depend on specific conditions to qualify. It includes any practices, including forestry or lumbering, performed by a farmer or on a farm, as an incident to or in conjunction with such farming operations. This includes preparation for market, delivery to storage, delivery to market and delivery to carriers for transportation to market.

Thompson said, “This ‘incident to or in conjunction with’ – this is our magic language … The activities must be in connection with the farmer’s own farming.”

How Does FLSA Treat Different Age Groups?

There are four primary age categories that determine what agricultural work a minor may perform. At 16 and 17, a minor may perform any agricultural job, including those classified as hazardous. There are no federal age-based restrictions on their agricultural work.

Minors aged 14 and 15 employed in agriculture can perform any jobs except for those listed as agricultural hazardous occupations. They must work outside of school hours and may not work during the school day. There are exemptions that allow 14- and 15-year-olds to perform some otherwise hazardous tasks if they have completed an approved federal training program such as the National Safe Tractor & Machinery Operation Program or are enrolled as vocational agricultural student learners.

Minors aged 12 and 13 can work any ag jobs except for the agricultural hazardous occupations. They must work outside school hours and require either written parental consent or must be working on a farm where their parents are also employed. Thompson noted that many states come in above this federal standard and prohibit work entirely below age 14.

Under federal law, a child under 12 may still perform ag work except for the agricultural hazardous occupations, but only under specific conditions. The work must occur outside school hours. The farm must meet the 500 man days requirement, meaning it used fewer than 500 man days of agricultural labor in any quarter of the preceding calendar year. (A man day is defined as any day during which an employee performs at least one hour of agricultural labor.) Written parental consent must also be obtained.

There is an exemption that exists for minors working for their parents or legal guardians on an agricultural enterprise owned or operated by that parent or legal guardian. Under this exemption, a child of any age can be employed by their parent/legal guardian at any time in any occupation on that farm, with no federal child labor restrictions applying. In such cases, state child welfare laws would be the relevant governing standards.

What Are Agricultural Hazardous Occupations for Minors Under 16?

Minors under 16 may not perform the following tasks:

• Operating a tractor of over 20 PTO horsepower, or connecting or disconnecting an implement or any of its parts to or from such a tractor
• Operating or working with a 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, unloading mechanism of a non-gravity-type self-unloading wagon or trailer, power posthole digger, power post driver or non-walking-type rotary tiller
• Operating or working with a trencher or earthmoving equipment, forklift, potato combine or power-driven circular, band or chain saw
• Working in a yard, pen or stall occupied by a bull, boar or stud horse maintained for breeding purposes; a sow with suckling pigs; or a cow with a newborn calf (with umbilical cord present)
• Felling, bucking, skidding, loading or unloading timber with a butt diameter of more than six inches
• Working from a ladder or scaffold at a height of over 20 feet
• Driving a bus, truck or automobile to transport passengers, or riding on a tractor as a passenger or helper
• 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
• Handling or applying a toxic agricultural chemical identified by the words “danger,” “poison” or “warning” or a skull and crossbones on the label
• Handling or using explosives
• Transporting, transferring or applying anhydrous ammonia

What Wages Are Minors Entitled To?

Minors employed in agriculture must be paid at least the minimum wage for all hours worked. They can be paid by the hour, by the piece rate or the day rate, but it must average out to be at least the minimum wage. One exception is that persons under the age of 20 can be paid $4.25 for the first 90 days that they work. Additionally, farms that meet that 500 man day standard are exempt from the federal minimum wage requirement.

State law, however, can supersede FLSA. Thompson said, “In Pennsylvania, it does. Our Pennsylvania Seasonal Farm Labor Worker and Child Labor Act applies the minimum wage here.”

by Sonja Heyck-Merlin