Following uproar in the agriculture sector and pushback from Congress, the Department of Labor (DOL) has decided to revisit the language of a proposed rule regarding children who work their family’s farm. The DOL’s proposal would have changed the parental exemption statute that governs children under 16 years of age who work on a farm owned by their parents or guardian.

The new rule would have only allowed the exemption on farms “wholly owned” by the parents. Now, the DOL’s “re-proposal” of the rule will revert back to the original language of farms “substantially owned” by the parents or guardian.

During a hastily-called Wednesday afternoon press conference, DOL officials (who refused to be identified by name) said the re-proposal “reflects the (department’s) careful attention to public comments and its conclusions that it is appropriate to provide the public with further opportunities to participate in the regulatory process.

“The re-proposal will only address the parental exemption provisions expected to be published for public comment by early summer.”

The official said ensuring that children employed on farms “have a safe and productive work experience is paramount. To that end, the (DOL) will continue to consider feedback … on portions of the rule outside the parental exemption before it is finalized.

“Until the (final decision), the Wage and Hour Division will revert to its earlier enforcement practice. The exemption will be applied in situations where the parent, or person standing in place of the parent, is a part-owner of the farm, a partner in a partnership or an officer of a corporation that owns the farm if the ownership interest in the partnership or corporation is substantial.”

For the official DOL press release, see here.  

How does DOL re-proposal gibe with the existing parental exemption statute?

“The statutory language for the parental exemption says a child of any age may be employed by their parents or a person standing in the place of a parent to perform any job on a farm owned by the parent or such person,” said the DOL official. “The (DOL) Wage and Hour Division has to enforce that language. In doing so, going forward from today, it will interpret ‘owned’ to include ‘substantial ownership’ and will no longer require ‘wholly owned by the parent.’

Asked what, exactly, constitutes “substantial ownership” the DOL official punted.It’s no longer requiring ‘wholly owned’ and clearly will allow for a variety of corporate structures and family owners of a farm while still meeting the intent of Congress that the parent is in a unique role or position to look after the welfare of the child in that context.”

Frank Gasparini, Executive Vice President of the National Council of Agricultural Employers (NCAE), was also unable to provide a hard explanation of the DOL’s use of “substantial.”

“I don’t know for sure,” said Gasparini on Wednesday afternoon. “In conversations, I’ve heard two smart lawyers question that as well. It’s too vague for comfort.”

For more, see here, here and here.

DOL officials said the department has heard “from many people because this rule is 40 years old – it hasn’t been an issue that’s resulted in a lot of attention. In 40 years, corporate structures of farms, ownerships of farms and how they’re operated has changed. Consequently, we want to take advantage of all the amazing and important comments we’ve received from the public and farm communities, in particular. (This will) ensure that what we do put out as final is informed by the really important comment process.”

Two things worth noting:

  • The proposed DOL rules prohibiting children from working in grain elevators and processing facilities are not covered by the re-proposal.
  • Following review, the DOL could still decide to use the “wholly owned” language in the rule. However, a DOL official said “it is unlikely (the rule) will be stricter.”

Gasparini says the DOL hasn’t admitted it “but one can read between the lines that there was a lot anxiety” about the proposed rule “from Congress. Citizens from rural areas, in particular, are very upset. A huge number of members of the House signed onto letters telling the DOL to reconsider the rule. A large number of senators also let them know their rural constituents were very concerned.”