|November 5, 2008|
Wage and Hour Division (WHD)
STATEMENT OF THOMAS M. MARKEY
ACTING DIRECTOR FOR OFFICE OF WORKERS' COMPENSATION PROGRAMS
BEFORE THE SUBCOMMITTEE ON LABOR, HEALTH AND HUMAN SERVICES, AND EDUCATION COMMITTEE
Mr. Chairman and Members of the Subcommittee, thank you for the invitation to appear today to discuss the Fair Labor Standards Act (FLSA) child labor provisions and the Department of Labor's implementing regulations. Specifically, I will discuss how the current statutory and regulatory provisions apply to youth employment in lumber and woodworking occupations. I would also like to talk about our review of two proposals previously suggested by the Old Order Amish community to employ its youth in the sawmilling and woodworking industries.
Let me first affirm the Department’s respect for the cultural and religious traditions of the Amish community. We recognize the challenges the community faces in preserving these traditions and way of life.
As their faith prescribes, Amish children end their formal education upon completion of the eighth grade. Thereafter, they are exempt from state laws making school attendance compulsory. For this reason, the Department permits Amish youth who have completed the eighth grade and are at least 14 years of age to work more hours than are normally permitted 14- and 15-year-olds and to work during traditional school hours. This is a longstanding accommodation made by the Department.
Following the end of their formal education, Amish youth begin working alongside their families and others in their community. These early work experiences allow them to become self-reliant within the community and teach them the values associated with a positive work ethic. In the past, many Amish children worked on a family farm. However, with farmland becoming scarce and expensive, the opportunities for Amish children to work on a family farm have declined. Many of the young people who want to remain with their families now transition to non-farm occupations like woodworking. As I will discuss, however, the employment of youth in the sawmill and woodworking industries is, like many other industries, limited by the statutory and regulatory requirements of the FLSA.
FLSA Child Labor Provisions
Mr. Chairman, the FLSA specifically prohibits minors under the age of 16 from working in manufacturing, which includes the sawmill and woodworking industries. The statute also directs the Secretary of Labor to prohibit the employment of minors under the age of 18 in occupations found to be particularly hazardous or detrimental to the health or well-being of these young workers. The Secretary makes these determinations in Hazardous Occupation Orders issued through the rulemaking process. There are currently 17 Orders in non-agricultural industries, and two are of particular concern for this issue.
Hazardous Occupations Order No. 4 prohibits minors under 18 years of age from assuming any occupation in the sawmill itself, the log pond area, or the log storage yard. Not only are the tasks performed in these areas too dangerous for young workers, the areas themselves are too dangerous. The Hazardous Occupation Order does, however, contain a limited exception which would permit 16- and 17-year olds to perform tasks such as cleaning up the yard, and working in offices and repair or maintenance shops that are not in the sawmill building.
Similarly, fourteen and 15-year-olds may work in the offices of sawmills only if such work does not entail entering the sawmill building.
Hazardous Occupations Order No. 5 prohibits minors under the age of 18 from operating, assisting to operate, setting-up, adjusting, repairing, oiling or cleaning most power-driven woodworking machines. Until they reach the age of 18, young workers can operate machines or tools not prohibited by the Order and can carry out tasks such as moving materials around and handling or shipping of lumber products. However, the safeguards put in place by Hazardous Occupations Order No. 4 prohibit them from performing these tasks specifically in sawmills.
Fourteen- and fifteen-year-olds employed by woodworking operations may work only in the offices, where they are permitted to operate most office machines.
The Fair Labor Standards Act limits work hours for fourteen- and fifteen-year-olds. Normally, such youth are prohibited from any employment during school hours and, on school days, they are limited to working 3 hours per day and then only up to a total of 18 hours in a school week. However, as I mentioned earlier, Amish children of this age group who have been exempted from their state's compulsory school attendance laws may work during normal school hours.
A 1996 enforcement effort in Western Pennsylvania sawmills found many child labor violations. Three of the establishments investigated were Amish-owned and many others employed Amish youth. Following these investigations, the Wage and Hour Division began meeting with members of the Old Order Amish and their Congressional representatives to discuss a request for an accommodation that would permit Amish youth to work in the sawmill and other woodworking industries. Those discussions focused on the statutory and regulatory requirements. Departmental representatives explained the statutory mandate that youth under 16 may not be employed in manufacturing; the child labor Hazardous Occupation Orders in question; the basis for these orders; and the Pennsylvania State law prohibiting minors under 18 from work involving woodworking equipment and saws. At that time, the Department made no specific accommodation, but did offer compliance assistance and outreach to the Amish community.
In 1997, at the request of Congressional representatives, the Department explored the feasibility of two specific proposals to allow 16-and 17-year-olds to work in sawmills. The first proposal would have allowed 16- and 17-year-olds to work in the sawmill building as long as they remained at least 150 feet away from the sawmill equipment. The Department decided, and continues to believe, that such a rule would be very difficult to administer. It would be difficult to substantiate whether or how often any distance rule was observed. Moreover, it would be difficult for employers to comply because Amish youth would likely be called upon to approach the machinery while performing non-equipment related tasks or receiving instructions, putting them at risk of injury by the equipment or by projectiles from the equipment. More importantly, this rule would not be feasible in most Amish sawmills. These sawmills typically have such compact operations that any worker who must stay 150 feet away from the equipment would be limited to working outside of the building.
The second suggested remedy would have allowed 16- and 17-year-olds to work in a physically separate part of the sawmill building. This proposal likewise did not seem feasible. Based on visits to representative sawmills, there are no apparent operations that could take place in a separate walled-off room within a sawmill.
Even at 150 feet away from the equipment or in a physically separate part of a sawmill building, youths may still be exposed to some danger. Hazardous Occupations Order No. 4 was explicitly based not just on hazards from the equipment, but on hazards inherent in the sawmill operations, such as falling lumber.
The injury rates in these industries are high. Sawmills are dangerous places to work, even for adults. Between 1995 and 1999, an average of 25 workers a year were fatally injured on-the-job in sawmills nationwide. Most were killed when they were either struck by an object or caught in a piece of equipment. The rate of injury in the lumber and wood products industry, which includes sawmills, is likewise high. In 1999, non-fatal injuries occurred at a rate of 12.5 per 100 full-time workers, over twice the national average for all industries (5.9 per 100 full-time workers). A five year average of non-fatal injuries and illness in sawmills suggests nearly 8,000 workers annually suffer injuries severe enough to warrant a day away from work.
Young workers' inexperience, smaller size, immaturity, and lack of training make employment in this industry even more dangerous for children. These factors are that much more significant for 14- and 15-year-olds. Even an adult presence in the workplace cannot always protect children from the split-second mistake that could cost them a finger, a hand, or worse. Establishing a regulatory record that would support a change in the existing Hazardous Occupation Orders -- in light of identified industry hazards -- would present a difficult challenge.
The Department is always happy to work with the Amish community so that it fully understands child labor obligations and their basis, and is fully aware of options on safe and legal opportunities for employing young people. For example, 16- and 17-year-olds may perform many woodworking tasks, like assembling furniture and sanding wood pieces, using traditional hand-powered tools.
Mr. Chairman, any accommodation made to address this issue -- whether statutory or administrative -- must be accomplished in a way that respects the cultural traditions of the Amish and protects youths from hazardous work.
We are prepared to evaluate any suggestions, including legislation, that you or other Subcommittee members may have for accommodating the needs of the Amish community while ensuring that youth are employed in circumstances that -- as required by law -- are not hazardous to their health or well-being.
We agree that work experience can be beneficial for young people, and we will help you explore opportunities for legal and safe employment of Amish youth. Thank you for the invitation to testify today and I would be pleased to answer any questions.