Federal Child Labor Laws

Dirty Work: The Creeping Rollback of Child-Labor Laws

The government has not had a lot of ideas for what to do about the nation's anemic job market, but there are troubling signs that one old idea is starting to re-emerge: child labor. In the first part of the 20th century, there was a concerted effort to end the scourge of children working in factories and textile mills. But now there is a small but noticeable drive to weaken these protections.

Maine grabbed headlines in late May when it enacted a law rolling back restrictions on the employment of minors. Children under the age of 18 can now work 24 hours a week — up from 20 — and as late as 10:15 on school nights, up from 10 p.m. (the bill's backers wanted to raise the cutoff to 11 p.m.). The law diluted protections that had been put in place in 1991, when teachers were complaining about working students falling asleep in class.

Maine's rollback was relatively modest. Its child-labor laws are still stricter than in many states, including some of its neighbors. But the legislature considered going further. Another bill would have allowed employers to pay workers under 20 a "training wage" of $5.25, instead of the standard Maine state minimum wage of $7.50. It would also have eliminated the limit on how many hours a minor over 16 can work on a school night.

Earlier this year, Missouri considered a more Dickensian proposal. A bill there would have removed state restrictions on employing children under the age of 14, along with limits on how many hours children could work per day. It would also have ended routine state inspections of companies employing children.

The sponsor, state senator Jane Cunningham, insisted that she was just trying to "put back some common sense" in the law, and that, "We're not doing students any favor by telling them, 'You cannot work.'" Of the proposed Missouri bill, Jay Leno quipped on The Tonight Show , "Well, yeah, why should the 10-year-olds in China be getting all the good factory jobs?"

Of course, even if states eliminated their anti-child-labor laws, there would still be federal restrictions. The Fair Labor Standards Act, the capstone of FDR's New Deal, puts limits on the use of child labor — though in many cases they are weaker than state laws; for example, many states put limits on the number of hours and how late 16- and 17-year-olds can work, which federal law does not. (The federal law also has exceptions for agricultural work, in which child labor remains all too common.

The Volokh Conspiracy » Lochner and Child Labor Laws

, The Supreme Court “expanded on the idea of substantive due process to strike down laws ... prohibiting child labor.”

There are two oddities here. First, in the only case I’m aware of to present the issue of direct state regulation of child labor to the Supreme Court, the Court upheld the law unanimously. Sturges & Burn Mfg. Co. v. Beauchamp conception of freedom of contract (or “substantive due process”) prohibited child labor laws. The constitutionality of child labor laws was so well-established that advocates for (much more controversial) protective laws for women consistently tried to lump adult women in with children as classes of workers in need to paternalistic legislation.

Of course, the Supreme Court did era in the late 1930s, every one of the forty-eight states had laws banning and regulating child labor . Unlike the national Fair Labor Standards Act passed in 1938, most of these laws restricted children under fourteen, as opposed to sixteen, though a sixteen-year rule was gradually gaining traction. But it’s really bizarre to read over and over again how “ Lochner

Prof. Bernstein —

I haven’t had the opportunity to read your book, and perhaps you discuss this question there. But I was curious:

Imagining a world in which Lochner was not overruled, and there was a due process right of freedom to contract, is it your sense that this would be a fundamental right? Would freedom to contract cases demand a heightened level of scrutiny?  

Based upon a long history of experience with legal reporting, I’d say you were either dreaming or delusional if you expect accuracy in the reporting of the impact of any particular Supreme Court case (or in any important Appellate Opinion, either). If you want proof that the media and the legal acedemia generally put their own spin on any given decision, and often misses the point completely (but they are no worse than a goodly number of Judges in that regard), just compare the Sixth Circuit Opinion on the Individual Mandate with how it is being generally reported today.  

Well, if more people knew the true facts of the Lockner case then it would be much harder for academics to rail against it as a bogeyman. By lumping it together with something most people think is a good idea (the child labor bans) they don’t have to defend a law preventing adult bakers from working longer hours even if they agree to it. Much the same as nearly everyone glosses over the procedural facts of United States v. Miller, they are simply too inconvenient. With Miller it’s more a matter that people want to put much more weight on the ruling than its procedural foundation would allow if that foundation were more widely recognized.   I haven’t had the opportunity to read your book, and perhaps you discuss this question there. But I was curious:Imagining a world in which Lochner was not overruled, and there was a due process right of freedom to contract, is it your sense that this would be a fundamental right? Would freedom to contract cases demand a heightened level of scrutiny?