abusive child labor continues but there are some hopeful signs

By: Kenneth A. Sprang, Esq

As I have written in recent weeks, child labor continues to be a significant problem in the American workplace.  In addition to some employers exploiting children, some states have enacted laws removing longstanding statutory protections for working minors.

This week’s headlines bring more indicia of the problem, but also a glimmer of hope for the future.  

Young workers are not infrequently deprived of the minimum wage mandated by state and/or federal statute.  These unfair treatments of young workers are common in the fast-food industry.  

Recently the Department of Labor found that the Cinco de Mayo Bar & Grill in New Hampshire had failed to pay minor workers overtime pay, as required by law, and they erred in recordkeeping to the children’s disadvantage.

The employer failed to pay certain employees, e.g., cooks, dishwashers, and bussers, time and one half for all hours worked in excess of 40 in any given week. Likewise, the employer failed to pay tipped employees for overtime work by basing overtime pay on the employees’ cash wage rates rather than their regular rates of pay.  Servers are commonly paid a modest wage of $2 to $3 per hour, with tips increasing their total compensation to at least the minimum wage and often more.  Therefore, overtime pay should be time and one-half times the total compensation, including tips and hourly wage.

In addition, the employer was found to be employing 14- and 15-year-olds to work as late as 10:00 p.m. and more than three hours on school days.  Under federal law 14- and 15-year-olds can work no later than 9:00 p.m., at least when school is in session, and the children can work no more than three hours on school days.  The employer was also remiss in keeping records of the children’s work.  

As the DOL Wage and Hour Division District Director in Manchester, New Hampshire opined, the employer “deprived dozens of employees of their rightful pay, making it much harder for these workers to support themselves and their families.” He further noted that “[t]he more than $215,000 in wages and liquidated damages recovered for these workers by the department will go a long way towards making them whole.” 

The Department of Labor assessed a total of $29,795 in civil money penalties. The penalty was a modest $3,164.  However, because the violations were willful, an additional   $26,631 in penalties were assessed. 

The plot thickens now with the discovery that much of the chocolate imported to the United States comes from West Africa, where it is harvested by children.

 

Child welfare advocates have filed a federal lawsuit seeking to have the federal government enforce an existing law dating from the 1930’s which requires the United Staters to ban products created by child labor from even entering the country. Plaintiff is the non-profit International Rights Advocates, which filed suit because the Customs and Border Protection and the Department of Homeland Security have ignored extensive evidence documenting children working abroad to cultivate cocoa which is ultimately acquired by well-known U.S. candy makers, e.g., Hershey, Mars, Nestle and Cargill.

These companies had pledged to end their reliance on child labor by 2005.  Now, however, they are pledging to end their reliance on child labor to harvest cocoa by 2025.

Cocoa cultivation by children in the Ivory Coast, as well as in nearby Ghana is not a new event. Human rights leaders, academics, news organizations and even federal agencies have spent the last two decades exposing the plight of children working on cocoa plantations in the West African nations.  These African nations produce about 70% of the world’s cocoa.

According to Terry Collingsworth, Executive Director of International Rights Advocates, “[t]hey will never stop until they are forced to.”  According to Mr. Collingsworth, the federal government has the power to end this abuse of children by enforcing existing law.  Spokespersons for Customs and Border Protection declined to comment on the suit.  When asked further about cocoa produced by child labor, the agency said it was “unable to disclose additional information or plans regarding forced labor enforcement activities due to protections of law enforcement sensitive and business confidential information.”

A 2019 study by the University of Chicago, commissioned by the U.S. government, found that 790,000 children, some as young as 5, were working on Ivory Coast cocoa plantations. The situation was similar in Ghana, researchers found.  The U.S. government has long recognized that child labor is a major problem in the Ivory Coast. The Department of Labor reported in 2021 that “children in [the Ivory Coast] are subjected to the worst forms of child labor, including in the harvesting of cocoa and coffee.”

The State Department has recently reported that that agriculture companies in the Ivory Coast rely on child labor to produce a range of products, including cocoa. The Department said this year that human traffickers “exploit Ivoirian boys and boys from West African countries, especially Burkina Faso, in forced labor in agriculture, especially cocoa production.” 

The problem of child labor is not going away any time soon, but there is a growing awareness of the problem. Perhaps acts like this recent suit against the government based on mistreatment of children in Africa will trigger more consciousness in American workplaces, though we could wait a long time for such a result.

The more viable solution may be to turn to labor unions.  Labor unions have been almost dormant for over 40 years, but they are experiencing rebirth and growing strength, the result of the evolution of the labor market during the pandemic and the general worker shortage in the United States, among other things.  Many unions are looking more closely at the quality of work life and not just at wages and benefits.  If unions step up to the plate now, they may be able to  use their strength and influence to force employers to comply with laws protecting minors. The truth is that union members may see minor workers as a matter of course, and if they see violations of child labor laws, the unions could take action to end the violation. In truth, protecting minors in the workplace should be a front and center issue for all parents, whether they are union members, executives, or fast-food workers.