Ensuring Child Labor Law Compliance Amid Growing Scrutiny

In February, the New York Times published an investigative report regarding alleged employment of underage migrants, many from Central America, at U.S. companies.1 While employment of certain minors is permitted under federal and state law, there are restrictions regarding the type of work, schedule and hours that minors may work.

The media scrutiny brought focus to an issue that has now become a key area of concern and attention for a few federal agencies — including the U.S. Department of Justice, the U.S. Department of Labor, and the U.S. Department of Health and Human Services.

Specifically with respect to the federal government, an interagency task force has been created, and new legislation has been introduced.

Given this increased attention on the issue of compliance with child labor laws, employers should review their employee roles and practices to ensure they are in compliance with federal and state law in this area.

New Government Task Force

Just days after the New York Times article was published, in late February, the federal government announced the creation of a task force to “combat exploitative child labor.”2

The announcement cites a 69% increase in “children being employed illegally by companies” since 2018. It also specifically describes an especially vulnerable population: child migrants who do not have any parents in the United States, but instead live with approved sponsors while being processed through the immigration system.

The task force will see cooperation between the DOL and HHS in sharing of information, as well as joint education and training initiatives.

With over 600 child labor investigations underway at the time the task force was announced, the intent of the task force is to use shared information to focus on “data-driven, worker-focused strategies to initiate investigations where child-labor violations are most likely to occur.”

In addition to scrutiny of the employers who actually violate labor laws with respect to minors, the task force will apply “further scrutiny to companies doing business with employers using illegal child labor to increase corporate accountability for system abuses of child labor laws.”

As a result, employers should not only thoroughly vet their own employees, but should also ensure that any staffing or employee leasing company with which they contract for labor is also thoroughly vetting its policies and practices for compliance with child labor laws.

More Focus From DOL and Congress

The DOL has announced not only the creation of the new interagency task force, but also has called on Congress to pass laws that increase the civil penalties for such infractions, and has highlighted recent enforcement actions. Specifically, on July 27, 2023, the DOL announced its “significantly enhanced child labor enforcement efforts.”3

Congress too has taken up a parallel focus. Under current federal law, the Fair Labor Standards Act, or FLSA, controls the requirements for employment of minors federally. Under that law, 16- and 17-year-old employees may work any amount of hours or schedule, but are not permitted to work in certain occupations that are deemed hazardous by the secretary of labor.

Minors that are 14 or 15 years old may be employed in certain positions outside of school hours for limited periods of time. If a minor is under 14 years old, the minor is not permitted to be employed in nonagricultural settings for positions that are covered by the FLSA.

State laws on the topic also often require work permits and have other requirements that may be more restrictive than the FLSA. Multistate employers should be sure to consult the state law in all of the jurisdictions in which they operate and employ minors.

Two federal bills related to child labor have been introduced this year — one in the Senate and one in the House.

In March, Sen. Brian Schatz, D-Hawaii, introduced the Child Labor Prevention Act. Citing directly to the Department of Labor statistic showing a 69% increase in illegal child employment since 2018, Schatz has proposed legislation that would increase maximum fines for violations and establish new criminal penalties.

Under the proposed legislation, employers could face civil penalties of up to $132,270 for routine violations of the FLSA and up to $601,150 for each violation that causes the death or serious injury of a minor. Violators at such companies could also face up to a year in jail for repeat or willful violations.

The bill also addresses use of independent contractors as a loophole the legislation intends to close. According to Schatz’s office, some employers have begun classifying children as independent contractors in an effort to avoid FLSA prohibitions against the employment of minors.

The bill would amend the Fair Labor Standards Act to apply child labor laws to independent contractors in addition to employees.

More recently, in June, Rep. Bobby Scott, D-Va., introduced an act “to protect children from oppressive child labor and unsafe workplaces.”

Scott asserts that the Department of Labor’s Wage and Hour Division has cut personnel hours spent on child labor enforcement every year since FY 2017 due to budget constraints.

The proposed legislation would amend both the FLSA and Occupational Safety and Health Act. It provides for a stiff increase in both civil and criminal penalties under which employers could be subject to fines of up to $10 million or life imprisonment in extreme cases.

The bill also would establish a National Advisory Committee on Child Labor to advise and make recommendations relating to oppressive child labor. It would also require the secretary of HHS to conduct research and experiments relating to oppressive child labor.

Both bills are at very early stages in the legislative life cycle, having only been introduced. However, they are part of a larger trend in federal government focus on the issue through increased enforcement as well as efforts to strengthen the laws and increase penalties.

Advice for Employers

Importantly, employers who employ minors will not violate the FLSA if they keep on file unexpired certificates of age for each minor employed — even if the minor is, in fact, too young to work under the law.

A valid age certificate is either a federal certificate issued by the Wage and Hour Division of the DOL, or a state certificate issued by an approved state agency. Employers are encouraged to make the collection of certificates of age a part of their standard hiring practices for minors.

A federal certificate of age may be requested from the DOL by either the employer or the minor. To ensure validity, it is best practice for employers to request the certificate themselves. Upon receipt, employers should retain the certificate at the minor’s workplace until the termination of the minor’s employment.

Other ways employers can assure compliance with federal child labor laws include:

  • Training management about child labor requirements;
  • Establishing an internal phone number or email address that allows employees to anonymously report violations;
  • Posting warnings about child labor hours in conspicuous places around the workplace; and
  • Placing clear signage on equipment that minors are prohibited from using.


Given the clear evidence that the federal government is highly focused on violations of child labor laws, employers should closely scrutinize their policies and practices with respect to employment of minors. Specifically, employers should require certificates of age as part of the hiring process for minors, as well as encourage compliance through training, signage and reporting strategies.

1 https://www.nytimes.com/2023/02/25/us/unaccompanied-migrant-child-workers-exploitation.html.

2 https://www.hhs.gov/about/news/2023/02/27/departments-labor-and-health-and-human-services-announce-new-efforts-combat-exploitative-child-labor.html.

3 https://www.dol.gov/newsroom/releases/osec/osec20230727.

4 (S.63/1‑/218th Congress (2023-2024)).

5 (H.R.444/1‑/218th Congress (2023-2024)).

About the Authors

Morgan McDonald is an associate working in the litigation department of Foley & Lardner LLP. Morgan is based in the firm’s Boston office where she is a member of the Business Litigation & Dispute Resolution Practice.

Felicia O’Connor is a skillful litigator in Foley’s Labor & Employment Practice and a member of the firm’s Automotive Industry Team. She frequently represents and counsels clients on a wide range of labor and employment issues including, wage and hour compliance, leave issues including the intersection between the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA), sexual and other harassment issues, the Worker Adjustment and Retraining NotificationAct (WARN) compliance, the Service Contract Act, and many other areas. She also has traditional labor experience including counseling on labor relations issues, responding to National Labor Relations Board (NLRB) charges, and conducting labor arbitrations.

Foley Lardner

Foley and Lardner LLP is a preeminent law firm that stands at the nexus of the energy, health care and life sciences, innovative technology, and manufacturing sectors. We look beyond the law to focus on the constantly evolving demands facing our clients and act as trusted business advisors to deliver creative, practical, and effective solutions. Our 1,100 lawyers across 25 offices worldwide partner on the full range of engagements from corporate counsel to IP work and litigation support, providing our clients with a one-team solution to all their needs. For nearly two centuries, Foley has maintained its commitment to the highest level of innovative legal services and to the stewardship of our people, firm, clients, and the communities we serve.

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