April 4, 2023 | Reading Time: 4 minutes
The GOP’s answer to labor shortages? Put kids to work
They’d rather erode child labor laws than raise wages, writes Mia Brett.
Business owners are complaining that no one wants to work anymore and there’s a labor crisis in America. The crisis is that workers have more leverage and are refusing to work for minimum wage and be treated like crap.
The obvious solution is raising wages and improving working conditions but some offer a different solution – a return to child labor. After all, children have no work experience, are easily exploited and are unlikely to organize.
Republicans would rather erode child labor laws than support a living wage. But it’s Democrats who have abandoned the working class, amirite?
The reason Republicans want to erode child labor protections is the exact reason we need these laws – children are easily exploited in the labor market.
This discussion gets to the heart of labor laws in this country, which is that the concept of “freedom of contract” doesn’t exist when one party (the employer) has significantly more power than another (the employee).
Initially, many attempts by the labor movement to protect workers from unfair hour requirements and extremely low wages were struck down by the Supreme Court for violating the supposed right to “freedom of contract.”
In Lochner v. New York in 1905, the Supreme Court ruled that the 14th Amendment protected a constitutional right to freedom of contract and, therefore, that a New York state law outlawing bakeries from hiring bakers for more than 10 hours a day or 60 hours a week was unconstitutional.
The theory was that the bakers should have the freedom to work as many hours as they wanted – discounting coercive pressure by employers to force bakers to work extreme and unsafe hours if they wanted to keep their jobs.
The Lochner ruling ushered in the “Lochner Era” of the Supreme Court and was used to strike down laws forbidding “yellow-dog contracts” (contracts that required workers to promise not to join a union) and minimum wage laws out of a belief in laissez-faire economics and “freedom to contract.”
This precedent changed in Nebbia v. New York in 1934 when the Supreme Court ruled there was no constitutional fundamental right to “freedom of contract,” and in 1937 in West Coast Hotel Co. v. Parrish, which upheld a minimum wage law. West Coast Hotel v. Parrish stated that economic regulation is reasonable if in the community’s best interest. Protecting kids from exploitation seems to me like it’s in the best interest of the community.
Historically, child labor was common. Children often worked on family farms or were apprenticed out to learn a trade when they got a little older.
Child labor became exploitative with the industrial revolution. Children worked away from families in factories. They were paid less than adults. They were often useful for tasks requiring small hands or small stature.
Public education reformers promoted the importance of public education but laws that required school attendance were rarely enforced or only applied to primary school. (This is probably another reason why Republicans are trying to destroy education. They’ll get more workers out of it!).
The first compulsory education law was passed in Massachusetts in 1852. Mississippi was the last to require primary education for all students in 1917.
The National Child Labor Committee was founded in 1904 at the same time the larger labor movement was also trying to pass reforms to protect workers from unsafe and unfair labor practices. It served the larger labor movement’s goals to restrict child labor because child laborers drove down wages and were less likely to join in strikes and unionizing efforts.
The National Child Labor Committee hired a photographer to photograph the conditions children were worked in to influence public opinion.
The Congress passed the first anti-child labor law in 1916. Called the Keating-Owen Child Labor Act, it relied on Congress’ authority to regulate interstate commerce to ban products from “any factory, shop, or cannery that employed children under the age of 14, from any mine that employed children under the age of 16, and from any facility that had children under the age of 16 work at night or for more than eight hours during the day.”
Unfortunately, the law was short-lived. It was struck down by the Supreme Court two years later in Hammer v. Dagenhart when the court said the Congress did not have the power to regulate working conditions. The next attempt – regulating child labor by levying an extra tax on goods made using child labor – was also struck down in Bailey v. Drexel Furniture.
The Congress finally succeeded in restricting child labor in 1938 with the Fair Labor Standards Act. It established a right to minimum wage, overtime pay, a maximum number of hours that could be worked in jobs related to interstate commerce, and set a minimum age of 16 to work in mining or manufacturing industries. The act was upheld in United States v. Darby Lumber Co in 1941. It was later expanded, in 1949, to include more industries.
Today “federal labor law prohibits the employment of workers under the age of 14 in non-agricultural settings. Fourteen- and 15-year-olds must work outside of the hours of school and cannot work: more than 3 hours on a school day…more than 18 hours per week when school is in session…”
Last month, the Arkansas legislature rolled back child-labor protections. Minors under 16 previously needed age verification and work certificates. This requirement has been abolished under the newly passed Youth Hiring Act of 2023. Governor Sarah Huckabee Sanders called it an “arbitrary burden” but it protected children from exploitation by ensuring that the state was involved in their employment and that those working weren’t below 14.
Arkansas isn’t the only state eroding child labor law to meet labor shortages. Last year, New Jersey expanded the number of hours teens can work. In Minnesota, Republicans proposed allowing teens to work on construction sites. Iowa is considering a bill to allow 14 and 15 year olds to work in industrial laundry services and meatpacking plants while also exempting them from worker’s compensation protections. Ohio is considering removing the cap on hours minors can work as long as a parent or guardian approves. These will expose minors to exploitation and dangerous working conditions.
Gun violence is the leading cause of death for children because Republicans reject gun-law reforms. Public education is being harmed by anti-history laws and book banning. Now there’s a movement to send children back to work, all to avoid raising wages and improving working conditions.
Mia Brett, PhD, is the Editorial Board's legal historian. She lives with her gorgeous dog, Tchotchke. You can find her @queenmab87.