| Original Full Text | Arkansas Law Review Volume 77 Number 2 Article 11 July 2024 Arkansas Law Review - Volume 77 Issue 2 Journal Editors Follow this and additional works at: https://scholarworks.uark.edu/alr Recommended Citation Journal Editors, Arkansas Law Review - Volume 77 Issue 2, 77 Ark. L. Rev. (2024). Available at: https://scholarworks.uark.edu/alr/vol77/iss2/11 This Entire Issue is brought to you for free and open access by the School of Law at ScholarWorks@UARK. It has been accepted for inclusion in Arkansas Law Review by an authorized editor of ScholarWorks@UARK. For more information, please contact scholar@uark.edu, uarepos@uark.edu. VOLUME 77 NUMBER 2 Symposium: Children at Work Foreword Annie B. Smith ............................................................................................. 195 Keynotes State Policy Levers to Fight Child Labor, Terri Gerstein ....................................................................... 201 Articles Children at Work, Parental Rights—and Rhetoric, Naomi Cahn, Maxine Eichner & Mary Ziegler ..................... 257 Seeing Race & Sexuality: Child Welfare & Forced Labor, Annie Isabel Fukushima, Jens Nilson & Kaden Richards ...... 283 How to Situate High School Student Part-Time Work Trends: An [Incomplete] Empirical Glance, Michael Heise ...................................................................... 313 (Hidden) in Plain Sight: Migrant Child Labor and The New Economy of Exploitation, Shefali Milczarek-Desai ....................................................... 345 Comments Sowing Seeds of Restriction: Cultivating Insight into Foreign Agricultural Holdings and Equal Protection Concerns, Payton R. Flower ................................................................. 407 Recent Developments Bethany A. Michau ...................................................................................... 437 The Arkansas Law Review (ISSN 0004-1831) is published quarterly at the University of Arkansas School of Law, Fayetteville, Arkansas 72701-1201, by the Arkansas Law Review, Inc., and the School of Law of the University of Arkansas. Printed at Sheridan CJK Group, Sheridan PA, Hanover, PA 17331. Periodicals postage paid in Fayetteville, Arkansas, and additional mailing offices. The Arkansas Law Review is a member of the National Conference of Law Reviews. Arkansas Law Review University of Arkansas School of Law Leflar Law Center, Waterman Hall Corner of Maple and Garland Avenues Fayetteville, Arkansas 72701-1201 Telephone: (479) 575-5610 POSTMASTER. Send address changes to the Managing Editor, Arkansas Law Review, University of Arkansas School of Law, 1045 W. Maple St., Fayetteville, Arkansas 72701-1201. 2023-2024 EDITORIAL BOARD JISSEL ESPARZA SAUCEDO Editor-in-Chief JACK CURTIS TRAVIS LINN Executive Editor Managing Editor JOHN HUDSON ALIA REDDELL BETHANY MICHAU Symposium Editor Law Notes Editor Research Editor BRETT CALLAWAY MIKAYLA JAYROE Articles Editor Articles Editor MICHAELA PARKS HAILEY PETIT ADDISON TUCKER Articles Editor Articles Editor Articles Editor MARCUS MONTGOMERY EMILY RECTOR Note and Comment Editor Note and Comment Editor HOLLIS REDDEN ERIN WADLEY Note and Comment Editor Note and Comment Editor MEMBERS JACOB ARMSTRONG LAUREN DAVIS JACOB PEARLMAN GUNNAR BARTLETT JACOB FOOR LEXIE ROOK TARYN BEWLEY BRETT GARNER RYLIE SLONE LAUREN HARRIS STAFF EDITORS EMILY ALLEN MATTHEW HALEY CHRISTOPHER PIEL SARAH ARNEY HELEN HOPE ANNAMARIE POOLE WILLIAM CONNALLY ALEXIS JONES CODY PRESTON JAMES CURLIN LINDSAY MAST ABIGAIL RIDDLE PAYTON FLOWER SHAWN MEYERS DALTON SPRINGER HARLEIGH GATHRIGHT MINOAH MILAM MARGARET WHISENHUNT ILSE GHENT MARCOS PEREZ JORDAN WHITFIELD ARKANSAS LAW REVIEW FACULTY ADVISORS PROFESSORS AMANDA HURST & DANIEL RICE © ARKANSAS LAW REVIEW, INC. 2024 UNIVERSITY OF ARKANSAS SCHOOL OF LAW
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Any and all opinions published herein are those of the individual authors and do not necessarily represent the opinions of the Arkansas Law Review, Inc., the University of Arkansas School of Law, or any person other than the author. We proudly present Volume 77, Issue 2 of the Arkansas Law Review for the benefit of all who learn and advance the law, whether judge, advocate, professor, or student. We have carefully developed these materials to elicit informed discussions and provide intellectual and practical assistance to members of the legal community. Arkansas Law Review Editorial Board 2023-2024 1. SMITHFOREWORD.MAN.FIN. (2) (DO NOT DELETE) 7/7/2024 7:57 PM Children at Work: Symposium Foreword Annie B. Smith∗ There has been a recent and well-documented increase in unlawful child labor in the United States1 and a simultaneous organized effort to weaken state child labor protections.2 In reaction to these converging trends – along with disturbing media coverage of children injured and killed at work,3 the White House, U.S. Department of Labor, child advocates, labor rights’ organizers and others have mobilized to respond.4 This Symposium, Children at Work, was convened to focus our collective attention on this critical and emerging issue. Once considered well-settled, questions of when children work and the types of work they should do are again contested. The contributors to this Issue helpfully examine these questions and others about children in the American workplace. In (Hidden) in Plain Sight: Migrant Child Labor and the New Economy of Exploitation, Professor Shefali Milczarek-Desai critically examines responses to the recent child labor exploitation ∗ Professor of Law, University of Arkansas School of Law. I am grateful to Arkansas Law Review Editor-in-Chief Jissel Esparza Saucedo and Symposium Editor John Hudson for their excellent work organizing the symposium and producing this issue. 1. Hannah Dreier, Alone and Exploited, Migrant Children Work Brutal Jobs Across the U.S., N.Y. TIMES (last updated Feb. 28, 2023), [https://perma.cc/6A7G-EZ7K]. 2. Nina Mast, Child Labor Remains a Key State Legislative Issue in 2024, ECON. POL’Y INST. (Feb. 7, 2024), [https://perma.cc/HPN2-DSUK]. 3. Hannah Dreier et al., Children Risk Their Lives Building America’s Roofs, N.Y. TIMES (Dec. 14, 2023), [https://perma.cc/9NR4-96A9]. 4. Terri Gerstein, Policies for States and Localities to Fight Oppressive Child Labor, ECON. POL’Y INST. (Feb. 27, 2024), [https://perma.cc/6WHM-UUMM]. See also Department of Labor, Interagency Task Force Announces Recent Actions To Combat Exploitative Child Labor With New Partnerships, Innovative Tactics, Ramped Up Enforcement, U.S. DEPT. OF LABOR (July 27, 2023), [https://perma.cc/VQT8-G9TL]; Departments of Labor and Health and Human Services Announce New Efforts to Combat Exploitative Child Labor, U.S. DEPT. OF HEALTH & HUMAN SERVS. (Feb. 27, 2023), [https://perma.cc/5LL2-BFUW]; Reid Maki, Joint Letter by Humanity United, Child Labor Coalition, and Valued Partners: Urgent Action Needed to Protect Children from Labor Exploitation, CHILD LABOR COALITION (May 4, 2023), [https://perma.cc/B7TB-5U33]. 1. SMITHFOREWORD.MAN.FIN. (2) (DO NOT DELETE) 7/7/2024 7:57 PM 196 ARKANSAS LAW REVIEW Vol. 77.2 crisis and the focus on enforcement and penalties.5 She argues that any approach to the current child labor crisis must take into account migrant child labor and the unique vulnerability of the increasing numbers of unaccompanied minors who commonly lack legal status, social support, or both, and who are responsible for economically supporting themselves and their families. Milczarek-Desai urges those concerned with child exploitation at work to consider potential unintended consequences for migrant youth when designing and implementing reforms. She offers several alternatives to enforcement, including data collection, mandated youth education on workplace rights and workers’ compensation, vocational training and job placement, and access to federal assistance and immigration relief for unaccompanied minors subjected to workplace exploitation. Terri Gerstein offers an array of policies states can adopt to address oppressive child labor.6 In State Policy Levers to Fight Child Labor, Gerstein contextualizes the recent rise in oppressive child labor within the broader crisis of “workplace rights enforcement,” including the decline in union density, under-funding of labor enforcement, and fissuring of the workplace. Rather than focus solely on federal policy, Gerstein emphasizes the important role states can have in protecting workers’ rights and makes policy recommendations for states seeking to meaningfully intervene in child labor exploitation. Drawing on models from existing employment laws, her recommendations include a whistleblower private right of action, required public disclosure of child labor violations, prohibiting government contracts with entities with widespread child labor violations in their supply chains, enacting state hot goods provisions and amending workers’ compensation laws to permit children to sue in tort when injured in the workplace. Professor Michael Heise applies an empirical lens to child labor policy. In How to Situate High School Student Part-Time Work Trends: An [Incomplete] Empirical Glance, he examines existing research on whether and how part-time work impacts 5. Shefali Milczarek-Desai, (Hidden) in Plain Sight: Migrant Child Labor and the New Economy of Exploitation, 77 ARK. L. REV. 345 (2024). 6. Terri Gerstein, State Policy Levers to Fight Child Labor, 77 ARK. L. REV. 201 (2024). 1. SMITHFOREWORD.MAN.FIN. (2) (DO NOT DELETE) 7/7/2024 7:57 PM 2024 CHILDREN AT WORK FOREWORD 197 outcomes for high school students.7 Heise begins by observing a general twenty-year decline in part-time work by high schoolers. He laments the paucity of quality data on the impacts of this part-time work. Heise points to conflicting results from existing studies of outcomes, including academic success, probability of pursuing post-secondary education, and long-term earnings. He identifies the primary data sets used in the leading empirical research into this subject and explores their limitations. Heise concludes by recognizing the importance of sound data to inform policy discussions regarding youth and work. Dr. Annie Isabel Fukushima and co-authors Kaden Richards and Jens Nilson consider an extreme form of child labor exploitation – child labor trafficking.8 In their article, Seeing Race and Sexuality: Child Welfare and Forced Labor, they argue that state responses to the human trafficking of children focus on sex trafficking and largely exclude labor trafficking. They analyze the results of a study of child welfare responses to child labor trafficking in California. Among their findings are that labor trafficking was misunderstood and under-identified by child welfare professionals, that existing interview and identification tools were inconsistent and inadequate to identify labor trafficking, and that appropriate training may increase identification of labor trafficking. The authors urge that responses to child labor trafficking must take into account the racialized and sexualized history of who is expected to work, who merits protection, and whose conduct is criminalized. Finally, in Children at Work, Parental Rights– And Rhetoric, Professors Naomi Cahn, Maxine Eichner and Mary Ziegler analyze the use of “parental rights rhetoric” in the effort to roll back state child labor protections.9 They trace the history of child labor in the United States and the competing roles of the parent and state in controlling it. Turning to the present, they demonstrate the ways that proponents for weakening state child 7. Michael Heise, How to Situate High School Student Part-Time Work Trends: An [Incomplete] Empirical Glance, 77 ARK. L. REV. 313 (2024). 8. Annie Fukushima et al., Seeing Race and Sexuality: Child Welfare and Forced Labor, 77 ARK. L. REV. 283 (2024). 9. Naomi Cahn et al., Children at Work, Parental Rights – And Rhetoric, 77 ARK. L. REV. 257 (2024). 1. SMITHFOREWORD.MAN.FIN. (2) (DO NOT DELETE) 7/7/2024 7:57 PM 198 ARKANSAS LAW REVIEW Vol. 77.2 labor laws – largely business groups and their affiliates – have used parental rights rhetoric to justify these reforms. The authors challenge the parental rights argument in this context as disingenuous rhetoric and propose strategies to counter it. In addition to many of the authors of this Issue, Symposium presenters included Reid Maki (Child Labor Coalition, National Consumers League), Jennifer Sherer (Economic Policy Institute), Laura Huizar (U.S. Department of Labor) Daveante Jones (Wright Lindsey Jennings), Erin Albright (New Frameworks), Betsy Wood (Bard Early College) Yasin Kahn (California Partnership for Young Worker Health and Safety, University of California Berkeley) and Marisa Peterson (Kids in Need of Defense). The Children at Work Symposium and this accompanying Issue provide one starting-place for renewed contemplation of child labor. The stakes are high. And many questions remain. Among them: At what age is it appropriate for children to work? How much should they work? What kinds of work should they perform? What limitations should there be and who should set them? To the extent that there are limits on child labor, how should they be enforced and by who? What is the role of the state in protecting children? What are unique challenges in enforcing child labor laws and securing the rights of children? How do current laws and enforcement strategies fall short? How might they be improved? How do immigration, child welfare, and education law and policy impact child labor? What effect does work have on children’s education? Their emotional and physical development and well-being? What is the relationship between children’s work and other individual and societal outcomes? To the extent that children work, what strategies will help to keep them safe in the workplace? What unique health and safety challenges do children face at work? How can children at work be protected from physical and sexual abuse by co-workers, employers, and the public? When children are employees, what are the implications for unions and organizing strategies? How do and should children 1. SMITHFOREWORD.MAN.FIN. (2) (DO NOT DELETE) 7/7/2024 7:57 PM 2024 CHILDREN AT WORK FOREWORD 199 participate in unions and organizing? Does the National Labor Relations Act adequately address the prospect of minor union members? When is children’s work voluntary? Can parents compel their children to work? Prohibit them from working? Under what circumstances? What about the relationship between human trafficking and child labor? Immigration policy and child labor? How should concerns about child labor trafficking inform policy? The Symposium presenters and contributors to this Issue do much to advance these and other important inquiries into child labor. 2.GERSTEIN.MAN.FIN (4) (DO NOT DELETE) 7/7/2024 8:03 PM STATE POLICY LEVERS TO FIGHT CHILD LABOR Terri Gerstein* I. INTRODUCTION** Oppressive child labor has made a resurgence in the United States. Media reports have revealed children as young as fourteen and fifteen working as roofers, in meatpacking facilities, in automobile manufacturing plants, and in other jobs that are hazardous and inappropriate for children.1 Federal and state labor enforcement agencies have reported sharp upticks in violations,2 including by household name companies.3 The severity and widespread nature of recent cases shock the conscience, and yet these violations do not occur within a vacuum. When migrant children are involved, issues of * Terri Gerstein is the Director of the NYU Wagner Labor Initiative at New York University’s Robert F. Wagner Graduate School of Public Service. The author would like to thank Nina DiSalvo, Nina Mast, and Jen Sherer for their insight and analysis that contributed to this article, and Lauren Maldonado for her assistance with research into state child labor statutes. ∗∗ Portions of this Article have been adapted from Terri Gerstein, Policies for States and Localities to Fight Oppressive Child Labor, ECON. POL’Y INST. (Feb. 27, 2024), [https://perma.cc/6WHM-UUMM], with the permission of the Economic Policy Institute. 1. See Hannah Dreier, Alone and Exploited, Migrant Children Work Brutal Jobs Across the U.S., N.Y. TIMES (Feb. 28, 2023), [https://perma.cc/VY3C-CTK2]; Hannah Dreier et al., Children Risk Their Lives Building America’s Roofs, N.Y. TIMES (Dec. 14, 2023), [https://perma.cc/8A4A-QH85]; Katie Johnston, ‘I’ve Learned That Things Have A Cost.’ Meet the Migrant Children Working Long Hours in Factories and Fish Plants Across Mass., BOSTON GLOBE (Mar. 26, 2023, 9:17 PM), [https://perma.cc/W7FF-PW7B]; A Reuters Investigation: Undocumented and Underage, REUTERS, [https://perma.cc/S4TH-H2SH] (last visited Mar. 3, 2024). 2. See Shapiro Administration Cracks Down on Child Labor Law Violations, Sees Surge in Reported Cases, PA. PRESSROOM (Sept. 4, 2023), [https://perma.cc/A5DA-5EDQ]; Child Labor Enforcement: Keeping Young Workers Safe, U.S. DEP’T OF LAB., [https://perma.cc/GJQ3-KFCK] (last visited Mar. 3, 2024); Evan Popp, As Child Labor Laws Are Weakened in Other States, Maine Reports Rise in Youth Worker Injuries, ME. BEACON (Aug. 10, 2023), [https://perma.cc/YRR3-NQSW]. 3. See NJ Department of Labor and Workforce Development, Attorney General’s Office Announce Historic $7.75M Settlement of Child Labor Law Violations with Chipotle Mexican Grill, STATE OF N.J. (Sept. 20, 2022), [https://perma.cc/Z7SD-CY43]. 2.GERSTEIN.MAN.FIN (4) (DO NOT DELETE) 7/7/2024 8:03 PM 202 ARKANSAS LAW REVIEW Vol. 77:2 immigration policy come into play, as well as country-of-origin conditions. But the recent rise in child labor does not involve only immigrant children—although they are the most vulnerable—and developments within the United States in recent decades have helped lay the groundwork for the current child labor surge. This Article situates the current wave of child labor violations within the broader context of the crisis of workplace rights enforcement,4 stemming from well-documented factors including the decline in union density caused largely by the weak, outdated National Labor Relations Act; the forty-year neoliberal project to shrink and starve government generally, including enforcement agencies; the fissuring of the workplace; and the decline in worker power caused by coercive contract terms such as non-compete and forced arbitration provisions. These factors helped set the scene in which child labor could make its current comeback. In the face of the current crisis, concerned commentators, advocates, and media have focused extensively on potential federal action5 and on problematic red-state rollbacks of child labor protections.6 Meanwhile, policy discussions often focus on the low-hanging fruit of increasing civil monetary penalties.7 This Article notes the importance of increasing penalties, as well as significantly increasing enforcement resources. Additionally, this Article focuses on the critical role states can play in addressing child labor. States have long played a leading role in relation to policymaking and enforcement in relation to workers’ rights. Over a century ago, child labor, minimum wage, and hours 4. See KATE HAMAJI ET AL., UNCHECKED CORPORATE POWER: FORCED ARBITRATION, THE ENFORCEMENT CRISIS, AND HOW WORKERS ARE FIGHTING BACK 5, 6, 21 (2019); EVAN KARL, MAKING RIGHTS REAL: HOW THE WHISTLEBLOWER ENFORCEMENT MODEL CAN ADDRESS THE CRISIS IN LABOR RIGHTS ENFORCEMENT 1-2, 4 (2023). 5. See, e.g., Rachel Looker, Child Labor Violations Are Up 69%. Here’s What Congress Is Doing to Address It, USA TODAY (Oct. 26, 2023, 9:20 AM), [https://perma.cc/8SWK-PS9R]. 6. See Nina Mast, States Across the Country Are Quietly Lowering the Alcohol Service Age, ECON. POL’Y INST. (July 20, 2023, 12:23 PM), [https://perma.cc/FRP3-LM3F]; Jennifer Sherer & Nina Mast, Child Labor Laws Are Under Attack in States Across the Country, ECON. POL’Y INST. (Mar. 14, 2023), [https://perma.cc/QJ9W-DVWM]; Jennifer Sherer & Nina Mast, Iowa Governor Signs One of the Most Dangerous Rollbacks of Child Labor Laws in the Country, ECON. POL’Y INST. (June 23, 2023), [https://perma.cc/KMP5-54BP]. 7. See Looker, supra note 5. 2.GERSTEIN.MAN.FIN (4) (DO NOT DELETE) 7/7/2024 8:03 PM 2024 STATE POLICY LEVERS 203 limitations began at the state level.8 Even now, dozens of states and localities have passed paid leave laws (either paid sick days or paid family and medical leave), creating momentum for likely eventual enactment of such policies at the federal level.9 And of course, even if innovative and effective state laws are not ultimately adopted at the federal level, they can be replicated in other states, and perhaps most importantly, they significantly improve the lives of actual human beings in the states where they are passed. Recognizing the key leadership position of states in relation to workers’ rights, this Article proposes a wide range of policy options for state lawmakers to consider, including, among other measures, creation of up-chain accountability for lead corporations with child labor violations in their supply chains; establishment of damages for child labor victims; creation of whistleblower or private rights of action; modification of workers’ compensation laws to allow injured child labor victims to sue in tort; procurement prohibitions so that corporations with poor records (directly or in their supply chains) cannot receive government contracts; enactment of state-level hot-goods provisions to halt the flow of illegally-produced goods; and use of public disclosure requirements to alert consumers. While the policies discussed herein have not generally been deployed in the child labor context, they are based on workplace laws currently in effect in one or more jurisdictions. States and localities in jurisdictions with a strong worker protection orientation have been particularly active and creative in the past decade-plus;10 many of their innovations could be adapted to address this new crisis. Given that they have largely already been implemented in some format, these proposals are not fantastical or impossible to operationalize, and some—like creating a private or whistleblower right of action—would have little or no fiscal impact. 8. See CONG. RSCH. SERV., RL 31501, CHILD LABOR IN AMERICA: HISTORY, POLICY, AND LEGISLATIVE ISSUES 1 (2013). 9. See The State of Paid Family and Medical Leave in the U.S. in 2023, CTR. FOR AM. PROGRESS (Jan. 5. 2023), [https://perma.cc/6WAX-AU3P]. 10. See Terri Gerstein, State and Local Workers’ Rights Innovations: New Players, New Laws, New Methods of Enforcement, 65 ST. LOUIS U. L.J. 45, 50 (2020). 2.GERSTEIN.MAN.FIN (4) (DO NOT DELETE) 7/7/2024 8:03 PM 204 ARKANSAS LAW REVIEW Vol. 77:2 This Article intentionally offers a menu of options, rather than a roadmap, for two reasons. First, there are currently sharply divergent political realities among the states, and what is politically attainable varies considerably among jurisdictions. What is feasible in one may be a heavy or impossible lift elsewhere. A menu is more suitable than a roadmap for this reason. Second, the resurgence of child labor is a relatively new phenomenon. There are not yet naturally existing experiments or research papers assessing what policies will be most effective. Some needed policies are obvious: without more funding and investigators, this problem will clearly not be adequately addressed. But among other possibilities—a whistleblower right of action versus the ability of child labor victims to sue for damages if injured, for example—it remains to be seen what will be most impactful. However, in light of the extent of the problem, the vulnerable children at risk, and the decades-long degradation in worker protections and enforcement, this Article advocates for a package approach. There is no silver bullet solution; rather, what is needed is a grouping of laws that together will overcome obstacles to detecting violations and will deter employers from violating the law and children’s rights. Finally, with few exceptions, such as in relation to workers’ compensation law, the policies discussed in this Article could be enacted at the federal level as well. Moreover, adoption of one or more these various policies in relation to child labor could provide proof of concept and potentially be adopted in relation to minimum wage, workplace safety, or other worker protections, thereby creating opportunities for expanding worker protection laws generally. II. BACKGROUND ON CHILD LABOR LAWS Federal and state laws allow children, even those as young as fourteen, to work in a range of jobs: in offices, grocery stores, restaurants, retail, and much more.11 However, the federal Fair Labor Standards Act (“FLSA”), as well as most state child labor 11. 29 C.F.R. § 570.34 (2010); Summary of the Texas Child Labor Law, TEX. WORKFORCE COMM’N, [https://perma.cc/7GM8-6D8S] (last visited Mar. 3, 2024). 2.GERSTEIN.MAN.FIN (4) (DO NOT DELETE) 7/7/2024 8:03 PM 2024 STATE POLICY LEVERS 205 laws, contain two general sets of provisions: (1) a prohibition on employing minors in certain exceedingly dangerous jobs, and (2) limitations on the hours that children can be assigned to work, in order to safeguard their health, development, and ability to get an education.12 Many state laws contain stronger protections, such as more expansive protections against hazardous work, greater limitations on work schedules, and/or the requirement of a work permit for minors.13 If state laws are stronger than federal laws, employers must comply with both.14 Where states have less protective laws, covered employers must still comply with federal law. Both federal and state child labor laws contain far weaker protections in agriculture than in other industries.15 Also, both federal law and many state laws permit minors and other young workers (such as those under twenty) to be paid a subminimum wage, and some states carve minors out of their minimum wage statutes altogether.16 State child labor laws vary considerably.17 A majority of state laws incorporate a requirement that minors obtain an employment certificate or work permit demonstrating proof of age, parental permission, medical clearance, and/or school permission.18 Some also require disclosure about the place, type, and hours of work.19 12. See 29 U.S.C. § 203 (2018); Summary of the Texas Child Labor Law, supra note 11; Administrative Rules Regarding Child Labor, ARK. DEP’T OF LAB. AND LICENSING (July 2, 2020), [https://perma.cc/4URP-KV35]; Child Labor Laws, CAL. DEP’T OF INDUS. RELS. (2013), [https://perma.cc/G4XJ-DGEM]; Selected State Child Labor Standards Affecting Minors Under 18 in Non-Farm Employment as of January 1, 2024, U.S. DEP’T OF LAB., [https://perma.cc/75WT-PADQ] (last visited Mar. 3, 2024). 13. See Employment/Age Certificate, U.S. DEP’T OF LAB. (Jan. 1, 2024), [https://perma.cc/U79S-XTAB]; Selected State Child Labor Standards Affecting Minors Under 18 in Non-Farm Employment as of January 1, 2024, supra note 12. 14. 29 U.S.C. § 218(a) (1967). 15. See State Child Labor Laws Applicable to Agricultural Employment, U.S. DEP’T OF LAB. (Jan. 1, 2024), [https://perma.cc/L6SW-T4FE]; Child Labor Laws Are Under Attack in States Across the Country, supra note 6. 16. See Nina Mast, Youth Subminimum Wages and Why They Should Be Eliminated, ECON. POL’Y INST. (Jan. 8, 2024, 10:59 AM), [https://perma.cc/6RX5-CBJT]. 17. See Child Labor Map, SATYARTHI, [https://perma.cc/46D7-UAD9] (last visited Mar. 3, 2024). 18. See Summary of the Texas Child Labor Law, supra note 11; Administrative Rules Regarding Child Labor, supra note 12; Child Labor Laws, supra note 12. 19. Employment/Age Certificate, supra note 13. 2.GERSTEIN.MAN.FIN (4) (DO NOT DELETE) 7/7/2024 8:03 PM 206 ARKANSAS LAW REVIEW Vol. 77:2 The primary state-level enforcer of child labor laws is generally the state department of labor or its equivalent,20 with some exceptions, such as in Massachusetts (the state attorney general enforces child labor laws), Florida (the Department of Business and Professional Regulation plays this role), and Mississippi (county sheriffs).21 Many states have both civil and criminal penalties for child labor violations.22 Almost all have some form of civil monetary penalties.23 Where there are criminal penalties, prosecution would be brought by the district attorney or equivalent, or in some cases by the state attorney general.24 Several states have recently rolled back some of their child labor protections, and bills have been introduced to roll back laws in many others.25 These rollbacks are largely the result of a coordinated campaign by conservative groups.26 Some of these rollbacks are arguably inconsistent with the FLSA.27 III. THE RECENT UPSURGE IN OPPRESSIVE CHILD LABOR In the past several years, there has been a marked upsurge in child labor violations. The United States Department of Labor (“USDOL”) has reported an 88% increase in overall child labor 20. State labor agencies have different names depending on the state; they generally have one or more of the following terms in their names: labor, industries, employment, workforce, or similar nomenclature. See State Labor Agencies, FINDLAW (Dec. 5, 2018), [https://perma.cc/7Z4D-WMYA]. 21. See, e.g., MISS. CODE ANN. §71-1-23 (2023). 22. See, e.g., 820 ILL. COMP. STAT. ANN. 205/17.3, 19 (2024); N.Y. LAB. LAW §§ 141, 145 (1991). 23. See 50 State Survey Spreadsheet (on file with author). 24. Terri Gerstein, How District Attorneys and State Attorneys General Are Fighting Workplace Abuses, ECON. POL’Y INST. (May 17, 2021), [https://perma.cc/4FUA-MC38]. 25. States Across the Country Are Quietly Lowering the Alcohol Service Age, supra note 6; Child Labor Laws Are Under Attack in States Across the Country, supra note 6; Iowa Governor Signs One of The Most Dangerous Rollbacks of Child Labor Laws in the Country, supra note 6. 26. Jacob Bogage & Maria Luisa Paul, The Conservative Campaign to Rewrite Child Labor Laws, WASH. POST (April 23, 2023, 7:00 AM), [https://perma.cc/XM76-WJM4]. 27. See Letter from Seema Nanda, Solic. of Lab., and Jessica Looman, Principal Deputy Admin., Wage & Hour Div., U.S. Dep’t of Lab., to Sen. Nate Boulton, Iowa Ninetieth Gen. Assembly (Aug. 24, 2023), [https://perma.cc/2RY2-MY5Z]. 2.GERSTEIN.MAN.FIN (4) (DO NOT DELETE) 7/7/2024 8:03 PM 2024 STATE POLICY LEVERS 207 violations in the past five years.28 Economic Policy Institute analysis of USDOL data shows that the number of minors employed in violation of child labor laws in fiscal year 2022 increased 37% over fiscal year 2021 and 283% over fiscal year 2015.29 The number of minors employed in violation of hazardous occupation orders increased 26% over fiscal year 2021 and 94% over fiscal year 2015.30 State-level violations have increased as well, such as in New York and Pennsylvania, where the Pennsylvania Department of Labor and Industries reported a 276% increase in 2023 child labor investigations compared with 2022.31 The Maine Department of Labor reported in August 2023 that it was seeing an upward trend in labor violations involving youth workers, with more injury claims filed for workers ages fourteen to seventeen in 2022 than in any of the previous ten years, including a minor whose index finger was amputated and a young employee injured using a meat slicer.32 Media reporting has also uncovered serious violations, many involving immigrant children, illustrating the unique vulnerability of these children as well as the unscrupulous conduct of employers that hire them.33 News stories have revealed children working for automobile parts suppliers; chicken, fish, and meat processing plants; and factories, including for household‐name products like Cheerios, Nature Valley, J. Crew, and Fruit of the Loom.34 Many cases involved multi‐layered “fissured” supply chain structures,35 in which lead 28. Child Labor Enforcement: Keeping Young Workers Safe, supra note 2. 29. Iowa Governor Signs One of the Most Dangerous Rollbacks of Child Labor Laws in the Country, supra note 6. 30. Id. 31. Child Labor Case Data, N.Y. STATE DEP’T. OF LAB., [https://perma.cc/LV5E-H87Q] (last visited Mar. 3, 2023); Shapiro Administration Cracks Down on Child Labor Law Violations, Sees Surge in Reported Cases, supra note 2. 32. Popp, supra note 2. 33. See e.g., Alone and Exploited, Migrant Children Work Brutal Jobs Across the U.S., supra note 1. 34. Id.; Hannah Dreier, The Kids on the Night Shift, N.Y. TIMES (Sept. 20, 2023), [https://perma.cc/9L6X-SHSB]; A Reuters Investigation: Undocumented and Underage, supra note 1; Johnston, supra note 1; Dave Ress, Wage Payment, Child Labor Violations On the Rise in Virginia, RICHMOND TIMES-DISPATCH (Oct. 27, 2023), [https://perma.cc/WV86-N7B3]; Teresa Cotsirilos, The Child Workers Who Feed You, FOOD & ENV’T REPORTING NETWORK (Apr. 18, 2023), [https://perma.cc/4HHG-UH28]. 35. See generally DAVID WEIL, THE FISSURED WORKPLACE (2014); The Problem, FISSURED WORKPLACE, [https://perma.cc/L4S3-Y7BT] (last visited Mar. 3, 2024). 2.GERSTEIN.MAN.FIN (4) (DO NOT DELETE) 7/7/2024 8:03 PM 208 ARKANSAS LAW REVIEW Vol. 77:2 corporations, often household-names, use subcontractors or staffing agencies, allowing them to seek to deflect accountability for violations occurring during the manufacturing of their products. Along with government statistics and media reporting on widespread cases in general, there have also been incidents of children killed on the job.36 In a five-week period in summer 2023, for example, three sixteen-year-olds were killed: at a poultry processing plant, a sawmill, and a landfill.37 The full scope of the problem is not yet known because numerous obstacles prevent these cases from being reported or coming to light.38 Nonetheless, there is clearly a significant and growing problem of children being illegally exploited at work in jobs that are dangerous and inappropriate for them and working schedules that are not compatible with their physical and educational needs. IV. THE CONTEXT IN WHICH THE SURGE IN CHILD LABOR VIOLATIONS OCCURRED To many Americans, the recent surge in child labor violations may seem mystifying, emerging seemingly out of the blue. However, those familiar with the decline in worker power and degradation of working conditions in recent decades may be less surprised. In fact, studies have repeatedly found high rates of violations of a range of workplace laws, including minimum wage, overtime, and wage payment laws;39 laws related to proper classification of workers as employees rather than as independent 36. See e.g., Nina Golgowski, Third Teen Worker Killed in Industrial Accident as States Try to Loosen Child Labor Laws, HUFFINGTON POST (July 20, 2023, 4:39 PM), [https://perma.cc/QD87-74H7]. 37. Id. 38. For a summary of common obstacles to workers reporting wage theft, see Confronting Wage Theft, CTR. ON POL’Y INITIATIVES 1, 7-8 (July 2017), [https://perma.cc/JB3F-5UFL]. Many of those same obstacles also prevent child labor violations from coming to light. 39. David Cooper & Teresa Kroeger, Employers Steal Billions from Workers’ Paychecks Each Year, ECON. POL’Y INST. (May 10, 2017), [https://perma.cc/25DB-U9RK]; Annette Bernhardt et al., Broken Laws, Unprotected Workers: Violations of Employment and Labor Laws in America’s Cities, NAT’L EMP. L. PROJECT (Sept. 21, 2009), [https://perma.cc/XK9L-4DS9]. 2.GERSTEIN.MAN.FIN (4) (DO NOT DELETE) 7/7/2024 8:03 PM 2024 STATE POLICY LEVERS 209 contractors;40 workplace safety and health laws;41 anti-discrimination laws including those prohibiting sexual harassment;42 the National Labor Relations Act;43 and more. In addition, although it is illegal for employers to retaliate against workers for reporting violations or for exercising their workplace rights, employer retaliation is common44 and prevents workers from taking action. Child labor cases, then, are only the latest and most shocking examples of a broad range of violations that routinely affect America’s working people. While many employers seek to comply with applicable workplace laws, businesses that flout the law have long been able to operate with a fair amount of impunity. Several broad economic trends and trends in employment relations, discussed in more detail below, have contributed to this situation, including the decline in union density, the starving of labor enforcement agencies, and the fissuring of the workplace, as well as coercive contracts and other trends that reduce worker power and impede labor market fairness.45 In addition, heightened immigration enforcement chills worker reporting of labor violations, allowing employers to exploit immigrant workers with unsettled status, degrading working conditions 40. See, e.g., LISA XU & MARK ERLICH, ECONOMIC CONSEQUENCES OF MISCLASSIFICATION IN THE STATE OF WASHINGTON 4-5 (2019), [https://perma.cc/G9DH-KRDL]; DALE BELMAN & AARON SOJOURNER, ILLEGAL WORKER MISCLASSIFICATION: PAYROLL FRAUD IN THE DISTRICT’S CONSTRUCTION INDUSTRY 1 (2019), [https://perma.cc/TA89-AW67]; Françoise Carré, (In)dependent Contractor Misclassification, ECON. POL’Y INST. (June 8, 2015), [https://perma.cc/NDC4-WT8L]. 41. Death on the Job: The Toll of Neglect 2022, AFL-CIO (April 26, 2022), [https://perma.cc/E30Z-9JDW]; Deborah Berkowitz, OSHA Severe Injury Data from 29 States: 27 Workers a Day Suffer Amputation or Hospitalization, NAT’L EMP. L. PROJECT (Apr. 27, 2017), [https://perma.cc/C2T7-66CW]. 42. Chai R. Feldblum & Victoria A. Lipnic, Select Task Force on the Study of Harassment in the Workplace, U.S. EQUAL EMP. OPPORTUNITY COMM’N (June 2016), [https://perma.cc/HBV8-ZVKC]; Bryce Covert, Sexual Harassment at McDonald’s Is Even Worse Than We Knew, THE NATION (May 26, 2020), [https://perma.cc/VU53-QRMP]; SEXUAL HARASSMENT OF WOMEN: CLIMATE, CULTURE, AND CONSEQUENCES IN ACADEMIC SCIENCES, ENGINEERING, AND MEDICINE 14 (Paula A. Johnson, Sheila E. Widnall & Frazier F. Benya eds., 2018), [https://perma.cc/J78D-WGFK]. 43. Celine McNicholas et. al., Unlawful: U.S. Employers are Charged with Violating Federal Law in 41.5% of All Union Election Campaigns, ECON. POL’Y INST. (Dec. 11, 2019), [https://perma.cc/Q7RX-RH7R]. 44. Laura Huizar, Exposing Wage Theft Without Fear, NAT’L EMP. L. PROJECT (June 24, 2019), [https://perma.cc/N5PE-LQ6W]. 45. See infra Sections IV.A-D. 2.GERSTEIN.MAN.FIN (4) (DO NOT DELETE) 7/7/2024 8:03 PM 210 ARKANSAS LAW REVIEW Vol. 77:2 further. 46 A new Department of Homeland Security program helps address this tension by granting discretionary deferred action and temporary legal status to workers whose employer is being investigated for violations of workplace laws.47 A. The Decline in Union Density over the Past Several Decades In the 1950s, around one-third of the workforce was unionized in the United States.48 In 2023, only around 6% of private sector workers were unionized.49 Meanwhile, polls show overwhelming public support for unions.50 While an analysis of factors causing the decline in unionization is beyond the scope of this Article, labor experts have cited numerous ways in which the National Labor Relations Act, which protects workers’ rights to join and form a union, is outdated and far too weak to fulfill its statutory goal of encouraging collective bargaining.51 For example, the statute contains no penalties when an employer commits an unfair labor practice like retaliatory firing of union supporters, and employers are in fact charged with that or similar violations in over 40% of all union campaigns.52 In addition, even after workers vote in an election and choose a union, the employer’s only obligation is to bargain in good faith; failure to do so results only in an order to bargain in good faith, allowing 46. Amanda M. Grittner & Matthew S. Johnson, When Labor Enforcement and Immigration Enforcement Collide: Deterring Worker Complaints Worsens Workplace Safety 3, 7 (W.E. Upjohn Inst. for Emp. Rsch., Working Paper 21-353, Oct. 2021), [https://perma.cc/28XF-BHVT]. In addition to the work-related factors discussed herein, other developments, such as the recent influx of unaccompanied minors, also sets the stage for the uptick in violations. 47. See DHS Support of the Enforcement of Labor and Employment Laws, DEP’T OF HOMELAND SEC. (Feb. 12, 2024), [https://perma.cc/8TQY-TW2D]. 48. Laura Feiveson, Labor Unions and the U.S. Economy, U.S. DEP’T OF TREASURY (Aug. 28, 2023), [https://perma.cc/PF4A-6HAE]. 49. Union Members—2023, U.S. DEP’T OF LAB. (Jan. 23, 2024), [https://perma.cc/S9AE-Q4LT]. 50. Lydia Saad, More in U.S. See Unions Strengthening and Want It That Way, GALLUP (Aug. 30, 2023), [https://perma.cc/2ECB-878W]. 51. Celine McNicholas et al., How the PRO Act Restores Workers’ Right to Organize, ECON. POL’Y INST. (Feb. 4, 2021), [https://perma.cc/KA2L-X39J]. 52. Unlawful: U.S. Employers Are Charged with Violating Federal Law in 41.5% of All Union Election Campaigns, supra note 43, at 21. 2.GERSTEIN.MAN.FIN (4) (DO NOT DELETE) 7/7/2024 8:03 PM 2024 STATE POLICY LEVERS 211 employers to drag out the negotiation process, avoid reaching a first contract, and wear down union supporters.53 Although it may seem unrelated to child labor, the national decline in union density sets the stage for the current crisis in various ways. Union presence at a worksite is correlated with better enforcement of workplace laws.54 When a given workplace is organized, unions act as on-site monitors, including paid union staff as well as shop stewards or representatives, who are employees of the workplace itself; both can raise concerns with the employer, serve as a resource for workers, and help bring violations to light.55 Union contracts typically include a process for workers to file grievances.56 They also usually contain a provision prohibiting arbitrary terminations unrelated to job performance (requiring termination only for “just cause,” and after progressive discipline).57 These protections enable workers more readily to raise concerns about violations or other issues at their workplace. For example, one study found that employees in unionized workplaces were more likely to raise concerns about workplace safety than those who were not unionized.58 In addition, unions are political actors; many routinely lobby for stronger worker protection laws and for increased enforcement resources.59 When there is low union density as at present (with 53. For these and other reasons, many labor advocates have called on Congress to pass the PRO Act, a bill to update the National Labor Relations Act in several essential ways. How the PRO Act Restores Workers’ Right to Organize, supra note 51. 54. Matthew Amengual & Janice Fine, Co-enforcing Labor Standards: The Unique Contributions of State and Worker Organizations in Argentina and the United States, 11 REGUL. & GOVERNANCE 129, 131 (2017). 55. See Asha Banerjee et al., Unions Are Not Only Good for Workers, They’re Good for Communities and for Democracy, ECON. POL’Y INST. (Dec. 15, 2021), [https://perma.cc/5MPL-5VSL]. 56. Union Grievances, ROMANO L., [https://perma.cc/K8H6-M59V] (last visited Mar. 3, 2024). 57. The Concept of “Just Cause” in Union Contracts, MASS. NURSES ASS’N, [https://perma.cc/U8BG-XPF6] (last visited Mar. 3, 2024). 58. Aaron Sojourner & Jooyoung Yang, Effects of Union Certification on Workplace-Safety Enforcement: Regression-Discontinuity Evidence, 75 ILR REV, 373, 398-400 (2022). 59. Union activities often affect the direction of public policy. See generally James Feigenbaum et al., From the Bargaining Table to the Ballot Box: Political Effects of Right to Work Laws (Nat’l Bureau of Econ. Rsch., Working Paper No. 24259, 2018); see also Daniel Stegmueller et al., Labor Unions and Unequal Representation 1-2 (Apr. 6, 2018) (unpublished manuscript), [https://perma.cc/NG8V-FJ92] (for presentation at workshop in Geneva, Switzerland). 2.GERSTEIN.MAN.FIN (4) (DO NOT DELETE) 7/7/2024 8:03 PM 212 ARKANSAS LAW REVIEW Vol. 77:2 even worse-than-average representation in many states), we lose on-site workplace monitors, mechanisms that facilitate worker reporting, and advocates for stronger laws and more enforcement. B. Persistent Under-Funding of Labor Enforcement Agencies To deter violations and incentivize compliance, employers must have the sense that there is some realistic possibility that their violations will be detected. Quite simply, state and local labor enforcement agencies are grossly underfunded relative to their statutory obligations and the scope of the problems.60 Exacerbating the situation, at both the federal and state levels, investigators responsible for child labor enforcement are typically also responsible for enforcing a host of other laws, including minimum wage and overtime laws.61 The USDOL’s Wage and Hour Division had only 733 investigators at the end of 2023.62 This is nearly 500 fewer investigators than the Division had at its peak in 1978.63 The Occupational Safety and Health Administration (“OSHA”), responsible for workplace safety and health, is also starved for resources: in 2020, it would have taken OSHA 165 years to inspect each workplace under its jurisdiction just once,64 and in states that have chosen to operate their own occupational safety 60. Ensuring the Safety and Well-Being of Unaccompanied Children: Hearing Before the S. Judiciary Comm., 118th Cong. 11 (2023), (testimony of Terri Gerstein, Harvard Center for Labor and a Just Economy Economic Policy Institute). 61. Id. 62. Jessica Looman, Big Results for Workers in 2023, U.S. DEP’T OF LAB. BLOG (Dec. 7, 2023), [https://perma.cc/J5WX-BNWM]. 63. Daniel Costa, Testimony Prepared for the U.S. Senate Committee on the Judiciary for a Hearing on ‘From Farm to Table, Immigrant Workers Get the Job Done’, ECON. POL’Y INST. (May 31, 2023), [https://perma.cc/9NPL-7LLU]; Ayesha Rascoe, Hundreds of Migrant Children Work Long Hours in Jobs That Violate Child Labor Laws, NPR (Mar. 5, 2023, 8:01 AM), [https://perma.cc/B9FV-N66P]. 64. Deborah Berkowitz, This Workers Memorial Day, NELP Urges OSHA to Ensure Employers to Keep Workers Safe on the Job, NAT’L EMP. L. PROJECT (Apr. 28, 2020), [https://perma.cc/4F6L-7R4J]. 2.GERSTEIN.MAN.FIN (4) (DO NOT DELETE) 7/7/2024 8:03 PM 2024 STATE POLICY LEVERS 213 and health plans,65 these programs are also generally underfunded.66 State labor agencies are generally no different. A 2018 investigation found that seven states had no investigators at all whose responsibilities included enforcement of minimum wage and overtime laws, while most states had fewer than ten.67 A subsequent study of six states that are generally protective of workers (Maine, Massachusetts, New York, Oregon, Vermont, and Washington) also reported inadequate levels of wage and hour enforcement staffing.68 Most recently, a 2023 report examined state labor in sixteen states and again found severely inadequate labor enforcement staffing levels.69 Florida, which as of this writing is considering a rollback in child labor laws, has no state department of labor at all and no wage and hour investigators. Its child labor laws are enforced statewide by seven employees in the Department of Business and Professional Regulation.70 Meanwhile, child labor investigations are highly resource intensive, requiring specialized skills and extensive work by teams of investigators for extended periods of time, including potentially preparatory surveillance and interviews, on-site investigations late at night with skilled, trained multilingual staffers, and extensive follow up with children, company representatives, school officials, and more.71 65. State Plans, U.S. DEP’T OF LAB., [https://perma.cc/UX44-7WJT] (last visited Mar. 4, 2024). 66. USDOL OSHA Federal Annual Monitoring and Evaluation (“FAME”) Reports provide annual analyses of state plan effectiveness, often including information about staffing levels. See, e.g., South Carolina FAME Reports: FY 2022 Follow-up FAME Report, U.S. DEP’T OF LAB. (2022), [https://perma.cc/U2TP-DPWP] (discussion regarding staffing for South Carolina); Arizona FAME Reports: FY 2022 Follow-up FAME Report, U.S. DEP’T OF LAB. (2022), [https://perma.cc/SKR5-J6KR] (discussion regarding staffing for Arizona). 67. Marianne Levine, Behind the Minimum Wage Fight, A Sweeping Failure to Enforce the Law, POLITICO (Feb. 18, 2018, 6:51 AM), [https://perma.cc/3G4Z-JXGN]. 68. HAMAJI ET AL., supra note 4, at 5-6, 14, 25. 69. KARL, supra note 4, at 1. 70. McKenna Schueler, Who Enforces Child Labor Law in Florida? Just 7 State Employees, Plus the Feds, ORLANDO WEEKLY (Jan. 5, 2024, 5:22 PM), [https://perma.cc/XN2J-LEDL]. 71. The challenging nature of this work is underscored in a news article reporting the challenges that corporate-funded compliance auditors face in detecting child labor in supply chains. See Hannah Dreier, They’re Paid Billions to Root Out Child Labor in the U.S. Why Do They Fail?, NY TIMES (Dec. 28, 2023), [https://perma.cc/Y5BE-3D73]. 2.GERSTEIN.MAN.FIN (4) (DO NOT DELETE) 7/7/2024 8:03 PM 214 ARKANSAS LAW REVIEW Vol. 77:2 The lack of sufficient investigators and starving of labor enforcement agencies, both at the state and federal levels, creates a situation in which corporations are often unlikely to face meaningful consequences for even serious violations, enabling impunity among the most exploitative employers. C. The Fissuring of the Workplace Increasingly, corporations have used business models in which they avoid directly employing people who perform core elements of their work, thereby insulating them from the employment relationship.72 Such corporations contract out core aspects of their work, use temporary and staffing agencies, or operate under a franchise business model.73 Professor David Weil coined the term “the fissured workplace” to describe this broad trend of recent decades.74 As Weil explains, the fissuring of the workplace often leads to increased violations and worse working conditions.75 Each layer in a fissured model must cover its operating expenses and make a profit, leading to ever thinner margins and increased corner-cutting by down-chain entities.76 The lead corporation at the top of the chain, often a multi-national corporation with ample resources, as well as a general counsel’s office and human resources department, generally avoids legal accountability for violations by smaller, less experienced, and far less capitalized down-chain entities that may operate in the underground economy or close to it.77 This is the case even though contractors and subcontractors may be working on the lead corporation’s premises, directly handling and working on its products, and performing functions that are core to the corporation’s business.78 In addition to increasing the occurrence of violations, the fissured model creates challenges in enforcing the law. The lead corporation is or should be aware of the situation: violations 72. The Problem, supra note 35. 73. Id. 74. Id. 75. Id. 76. Id. 77. The Problem, supra note 35. 78. Id. 2.GERSTEIN.MAN.FIN (4) (DO NOT DELETE) 7/7/2024 8:03 PM 2024 STATE POLICY LEVERS 215 occur on their premises in relation to production of their products and in some cases under their supervision. They have the ability to conduct due diligence before subcontracting and to monitor the performance of their subcontractors to ensure compliance. In fact, the extremely broad definition of “employ” under the FLSA—to suffer or permit to work79—would seem to cover these situations. However, the case law that has developed over the years makes it much more difficult than it should be to get a finding of joint employer status, often focusing on factors very particular to the individual worker, such as who hired the worker, set their pay, directly supervised the work, and similar considerations.80 As a result, it is too easy under current law for large, household name corporations to deflect responsibility for violations of workplace law and place the blame with subcontractors and staffing agencies. This type of fissured business model was present in several recent child labor cases: children worked in several states for a sanitation contractor in meatpacking plants owned by major multinational corporations; they worked for a Hyundai supplier in Alabama; and teenagers worked for a General Mills food processing subcontractor placing Cheerios bags into the familiar yellow boxes.81 D. Forced Arbitration and Other Coercive Contract Terms That Reduce Worker Power In recent years, corporations have used forced arbitration, noncompete provisions, and other contract terms that reduce worker power in various ways. Increasingly, forced arbitration provisions prevent workers from being able to file lawsuits in court, instead requiring them to 79. 29 U.S.C. § 203(g) (2018). 80. CATHERINE RUCKELSHAUS ET AL., WHO’S THE BOSS: RESTORING ACCOUNTABILITY FOR LABOR STANDARDS IN OUTSOURCED WORK 34 (2014), [https://perma.cc/J9TZ-VSPC]. 81. Alone and Exploited, Migrant Children Work Brutal Jobs Across the U.S., supra note 1; Michael Levenson, Food Safety Company Employed More Than 100 Children, Labor Officials Say, N.Y. TIMES (Feb. 17, 2023), [https://perma.cc/U95H-CQAT]; A Reuters Investigation: Undocumented and Underage, REUTERS, [https://perma.cc/S4TH-H2SH] (last visited Mar. 3, 2024). 2.GERSTEIN.MAN.FIN (4) (DO NOT DELETE) 7/7/2024 8:03 PM 216 ARKANSAS LAW REVIEW Vol. 77:2 file cases in arbitration.82 Many scholars have explored why arbitration is bad for workers: it is secretive, with proceedings that are not public record as they would be in court, which prevents wrongdoing from coming to light or other victims from learning about cases.83 In practice, workers lose more often in arbitration than in court, and when they do win in arbitration, they win less money than they would in a similar court case.84 Many contracts with forced arbitrations also include class waivers,85 prohibiting workers from bringing claims as a class and requiring them to go it alone in seeking redress; this makes it very difficult for them to find lawyers to bring their cases, because individual cases do not bring the economies of scale that class actions do, making many such cases infeasible for private attorneys.86 Ultimately, forced arbitration often functionally extinguishes claims: NYU Law Professor Cynthia Estlund wrote about the “black hole” of forced arbitration, noting that “well under two percent of the employment claims that one would expect to find in some forum, but that are covered by [forced arbitration provisions], ever enter the arbitration process.”87 In addition, contract terms such as non-compete, “stay or pay,” or training repayment agreement provisions, are also increasingly used. Noncompetes are provisions that prevent individuals from working for their employer’s competitor for a fixed period of time, usually also within a fixed geographic range.88 “Stay or pay” provisions require workers to pay money in order to leave their job; these debt obligations imposed on workers as a condition of exit are sometimes framed as liquidated 82. Alexander J.S. Colvin, The Growing Use of Mandatory Arbitration, ECON. POL’Y INST. (Sept. 27, 2017), [https://perma.cc/5G6L-NVZH]. 83. Katherine V.W. Stone & Alexander J.S. Colvin, The Arbitration Epidemic, ECON. POL’Y INST. (Dec. 7, 2015), [https://perma.cc/QR6C-TSZ9]. 84. Id. 85. Id. 86. Celine McNicholas, By Banning Mandatory Arbitration Clauses and Class and Collective Action Waivers, Congress Could Restore a Fundamental Workers Right, ECON. POL’Y INST. (Nov. 14, 2018), [https://perma.cc/USM8-ZHWB]. 87. Cynthia Estlund, The Black Hole of Mandatory Arbitration, 96 N.C. L. REV. 679, 696 (2018). 88. Jane Flanagan, No Exit: Understanding Employee Non-Competes and Identifying Best Practices to Limit Their Overuse, AM. CONST. SOC’Y (Nov. 2019), [https://perma.cc/7Z4X-74C8]. 2.GERSTEIN.MAN.FIN (4) (DO NOT DELETE) 7/7/2024 8:03 PM 2024 STATE POLICY LEVERS 217 damages, or as paying back to the company recruitment or other costs.89 Training repayment agreement provisions (“TRAPs”) are a sub-category of stay or pay provisions; they require workers to pay back the cost of “training” received, even though the training may be minimal, overpriced, or purely for the employer’s benefit.90 These kinds of terms all prevent workers from readily leaving a job, because of the limited options and/or debt that will result; as such, they also prevent workers from reporting or objecting to potential violations as freely as they otherwise might. In many instances, corporate concentration also plays a role: one or two large employers may be the dominant employers in a community, such that workers have few other options in a given industry. In other cases, corporations themselves sign “no poach” or “no hire” agreements in which they jointly collude not to hire each other’s employees.91 These trends and contract terms collectively serve to weaken workers’ power vis-à-vis corporations, making it more difficult for workers to leave jobs (including where laws are being broken), quashing workers’ ability to challenge violations or bring them to light, and significantly increasing the potential harmful consequences of reporting even serious infractions. As with the decline in union density, these outcomes together contribute to employer impunity, allowing violations to fester hidden from view, and emboldening bad actors to expect few repercussions for ignoring the law. E. The Relation of the Above Factors to Child Labor For skeptics who might find these factors tangential to child labor, it is worth considering: Would the current child labor crisis have occurred if the United States still had 30% private sector union density 89. Sandeep Vaheesan, Beyond Noncompetes, Firms Use These Tactics Stop Workers From Leaving, WASH. POST (Apr. 13, 2023, 11:59 AM), [https://perma.cc/CC4V-VU5J]. 90. See Training Repayment Agreement Provisions (TRAPs), STUDENT BORROWER PROTECTION CTR., [https://perma.cc/2L6C-CWTG] (last visited Mar. 4, 2024); Jonathan F. Harris, Unconscionability in Contracting for Worker Training, 72 ALA. L. REV. 723, 726 (2021). 91. Brian Callaci et al., The Effect of Franchise No-poaching Restrictions on Worker Earnings 4 (IZA Discussion Paper No. 16330, 2023). 2.GERSTEIN.MAN.FIN (4) (DO NOT DELETE) 7/7/2024 8:03 PM 218 ARKANSAS LAW REVIEW Vol. 77:2 nationally? If the country had adequately resourced federal and state labor enforcement agencies? If lead corporations were held legally responsible for egregious, repeat, or widespread workplace law violations by vendors, suppliers, and subcontractors in their supply chains? If workers could freely file lawsuits and report violations without risking debt, unemployment, or personal financial devastation? If all of these conditions were present? Counter-factuals are inherently speculative, of course, but the thought experiment helps demonstrate that these factors help set the stage for the current return of oppressive child labor. V. POLICY OPTIONS TO STRENGTHEN CHILD LABOR ENFORCEMENT This Part describes an array of state-level policy options to strengthen enforcement of child labor laws. The Article’s focus on states, however, should not be interpreted as suggesting a diminished or reduced role for the federal government; in fact, most of the options described below could readily be adopted at the federal level. And some needed policy changes, such as making it easier for most private sector workers to form and join unions, can only be implemented at the federal level, by updating the National Labor Relations Act. Noncompliance with workplace laws has been described as a “rational” profit‐maximizing decision made by unethical employers in response to low enforcement rates and deficient penalties.92 Scholars who have analyzed employer costs and benefits of noncompliance find that such “employers will not comply with the law if the expected penalties are small either because it is easy to escape detection or because assessed penalties are small.”93 A broader way of understanding this calculus is that labor law compliance is a product of the likelihood of detection and the seriousness/severity of consequences if detected. 92. Orley Ashenfelter & Robert S. Smith, Compliance with the Minimum Wage Law, 87 J. OF POL. ECON. 333, 335 (1971). 93. Id. 2.GERSTEIN.MAN.FIN (4) (DO NOT DELETE) 7/7/2024 8:03 PM 2024 STATE POLICY LEVERS 219 Currently, the system of enforcing workplace laws in the United States fails on both fronts: the likelihood of detection is exceedingly small, and the consequences of detection are insufficient. Federal and state enforcement resources are grossly insufficient, diminishing the likelihood of detection, and when detection does occur, the potential consequences are too modest, and generally imposed only on lower-level actors, not major corporations at the top of supply chains, with the leverage to actually stop violations. The likelihood of detection is further decreased by the barriers to child workers themselves complaining. As noted above, low union density also reduces the likelihood of detection. As a result of the above considerations, urgently needed measures include increasing enforcement resources, increasing civil and criminal penalties, creating damages or remediation measures for child labor victims, and creating clear accountability for lead corporations when there are repeat or widespread violations in their supply chains. In addition, other state-level measures would help considerably, including workers’ compensation law modifications, blocking procurement from child labor violators, allowing stop-work orders, mandating labor rights education, enacting state-level “hot goods” provisions allowing for enjoining of illegally produced products, and creating a private right of action or whistleblower program. This Part describes changes in laws and policies that could strengthen child labor enforcement. It does not contain recommendations regarding strengthening substantive provisions of federal and state child labor laws (such as expanding the definitions of hazardous workplaces, improving protections for children in agriculture, or eliminating the lower-subminimum wage for minors allowed in many states) although in most cases they should be significantly more protective.94 In analyzing the available approaches, state lawmakers and worker advocates should consider the potential deterrent impact on child labor violations. As a practical matter, they are also 94. Because of its focus specifically on enforcement, this report also does not address other essential areas of policymaking related to child labor, such as the potential role of social services agencies and other government actors to meet the myriad needs of children exploited at work, including particularly vulnerable migrant children. See supra Part I. 2.GERSTEIN.MAN.FIN (4) (DO NOT DELETE) 7/7/2024 8:03 PM 220 ARKANSAS LAW REVIEW Vol. 77:2 likely to assess the cost of implementation, as well as the political landscape and possibilities in a given jurisdiction. Many of the measures suggested require modest funding to implement. Given the complex nature of the problem and its causes, no one approach alone is likely to be sufficient. Policymakers should deploy a package of the below policy tools, focusing above all on the goal of preventing violations from occurring in the first place. A. Increase Funding for Enforcement To deter violations and incentivize compliance, employers must have the sense that there is some realistic possibility that their violations will be detected. Many obstacles prevent workers from reporting violations by their employers, including fear of retaliation.95 It is even more unlikely that children whose rights are violated at work will report their exploitation.96 As described above, enforcement resources are currently grossly inadequate, and should be increased, both to deter child labor violations and to address them appropriately when they occur.97 While there is no national benchmark in the United States, the International Labor Organization recommends a ratio of one labor investigator per 10,000 workers in industrial market economies.98 Most states, as well as the federal government, are far from that level. In addition, increased funding should be used to increase pay for labor investigators, in order to address 95. Huizar, supra note 44, at note 3 observes, “the least politically, economically, and socially powerful and secure workers were the least likely to make claims, the most likely to experience retaliation, and the least likely to have accurate substantive and procedural legal knowledge.” 96. See Id. 97. See supra Section IV.B. Cities and counties can play a role here, by establishing local labor agencies within their jurisdictions. Indeed, in the past decade, a number of cities and counties have established such offices; they play a worker protection role, including often enforcing municipal minimum wage and paid sick leave laws, among others. Terri Gerstein & LiJia Gong, The Role of Local Government in Protecting Workers’ Rights, ECON. POL’Y INST. 2, 3 (June 13, 2022), [https://perma.cc/284Q-7CHZ]. These agencies often collaborate closely with immigrant communities and worker organizations and could play outreach, referral, convening, or policy development roles in relation to the upsurge of child labor. 98. ILO Comm. on Emp. & Soc. Pol’y, Strategies and Practice for Labour Inspection, GB.297/ESP/3 (Nov. 2006), [https://perma.cc/35SR-KZET]. 2.GERSTEIN.MAN.FIN (4) (DO NOT DELETE) 7/7/2024 8:03 PM 2024 STATE POLICY LEVERS 221 turnover and attrition that some agencies have reported among their staff.99 B. Increase Civil Penalties and Allow Them to Be Distributed (as Penalties or Damages) to Child Labor Victims 1. Initial Observations While policymakers often focus initially on increasing penalties, such measures alone are unlikely to solve the current problems. If employers are highly unlikely to be caught because of scant enforcement resources, if lead corporations can deflect legal responsibility to subcontractors, and if lower-tier staffing agencies are effectively judgment-proof, then even sky-high penalties are not likely to deter violations sufficiently. Moreover, high penalties alone—which accrue to the state—are not likely to incentivize reporting of violations and do not expand the pool of enforcers. And in many cases, for large corporations, even relatively high penalties (by workplace law standards) will still be treated as the cost of doing business.100 Therefore, while it is critical to increase current penalties that are often no more than a slap on the wrist, it is also essential to enact a package of policy reforms—not just penalties—to meet the needs of the moment. 2. Landscape State child labor civil monetary penalties vary widely, but as a starting point state maximum penalties are almost uniformly significantly less than the maximum federal penalty (currently $15,138 per violation).101 99. See Punching in: DOL Investigator Hiring Push No Match for Attrition, BLOOMBERG L. (July 31, 2023, 4:30 AM), [https://perma.cc/W7PF-S2TS]. Pay increases may also require reclassification of labor investigators at higher levels within civil service systems. 100. Ashenfelter & Smith, supra note 92, at 335, 336. 101. Maine is a notable exception: the penalty range for the first violation is $250 to $5,000; for intentional or knowing violations involving minors under fourteen or of hazardous work prohibitions, the penalties for repeat violations within three years range from $5,000 to $20,000 (second violation) and $20,000 to $50,000 (third or subsequent). ME. REV. STAT. ANN. tit. 26, § 781 (2017). 2.GERSTEIN.MAN.FIN (4) (DO NOT DELETE) 7/7/2024 8:03 PM 222 ARKANSAS LAW REVIEW Vol. 77:2 a. State Child Labor Civil Monetary Penalties Vary Widely For first-time violations, penalties range from a minimum of $0 (Idaho)102 to a maximum of $10,000 (Delaware, Tennessee in some circumstances, Texas, Virginia if the child is seriously injured or dies).103 With the exception of Maine (where penalties for multiple repeat violations within a three-year period can reach as high as $20,000 to $50,000),104 state level penalties generally top off at around $10,000 per violation, as in California (hazardous work violation penalties are between $5,000 and $10,000 per violation)105 and Delaware (civil penalties are up to $10,000 per violation).106 Many states have unusually low penalties for child labor violations, with penalties less than $1,000 per violation. In Colorado, the labor department can issue a child labor penalty of $20 per offense (although each day the conduct continues after an order constitutes a separate offense).107 In Idaho, the maximum employer fine is $50; if an employer continues to employ the child in violation of the law after being notified by certain government officials, the fine is between $5 and $20 for each day that the employment continues.108 In Indiana, for several types of violations, including hazardous work, the civil penalties are a “warning letter for any violations identified during an initial inspection;” for hazardous occupation violations, civil penalties are $100 for a subsequent violation, $200 for a third violation, and $400 for a fourth or subsequent violation, but only if they occur within two years of a prior infraction; for violations related to work hours, the penalties are even lower.109 In contrast to most states, Wisconsin has a provision creating damages owed to the affected minor when there are child labor 102. IDAHO CODE ANN. § 44-1305 (2024). 103. DEL. CODE ANN. tit. 19, § 509(b) (1998); TENN. CODE ANN. § 50-5-112 (2014); TEX. LAB. CODE ANN. § 51.033(b) (2023); VA. CODE ANN. § 40.1-113(A) (2015). 104. ME. REV. STAT. ANN. tit. 26, § 781 (2017). 105. CAL. LAB. CODE § 1288(a) (2018). 106. DEL. CODE ANN. tit. 19, § 509 (1998). 107. COLO. REV. STAT. ANN. 8-12-115(4)(a) (2000). 108. IDAHO CODE ANN. § 44-1305 (2024). 109. IND. CODE ANN. § 22-2-18.1-30 (2022). 2.GERSTEIN.MAN.FIN (4) (DO NOT DELETE) 7/7/2024 8:03 PM 2024 STATE POLICY LEVERS 223 violations of hour limitations or rules of the labor department.110 Specifically, the employer is liable, in addition to wages already paid, to pay each affected minor “an amount equal to twice the regular rate of pay as liquidated damages, for all hours worked in violation per day or per week, whichever is greater.”111 b. Factors to Be Considered Some state child labor civil monetary penalties consider specific factors, including whether the violation was intentional or willful (for example, Arkansas and Maine);112 the type of child labor law violated—e.g., hours, work permit, hazardous work (California,113 Minnesota114); history of past violations (Colorado,115 New York116); or failure to remedy violations (Colorado117). Several states, such as New York, Rhode Island, and Virginia, allow for a higher civil monetary penalty if child labor laws are being violated and a child is injured or killed on the job.118 Some state laws require consideration of a number of factors; for example, New York law requires the labor department to consider “the size of the employer’s business, the good faith of the employer, the gravity of the violation, the history of previous violations and the failure to comply with record-keeping or other requirements.”119 3. Recommendations Regarding Penalty Amounts The low civil penalty levels are highly unlikely to deter violations. The appropriate recommended penalty level may differ by location, given the variation in state economies. It is 110. WIS. STAT. ANN. § 103.82 (2023). 111. WIS. STAT. ANN. § 103.82. 112. ARK. CODE ANN. § 11-6-103(j) (2023); ME. REV. STAT. ANN. tit. 26, § 781 (2017). 113. CAL. LAB. CODE § 1288 (2018). 114. MINN. STAT. ANN. § 181A.12 (2000). 115. COLO. REV. STAT. ANN. § 8-12-115(4)(b)(II) (2000). 116. N.Y. LAB. LAW § 141(1) (1991). 117. COLO. REV. STAT. ANN. § 8-12-115(4)(a). 118. N.Y. LAB. LAW § 141(1); 28 R.I. GEN. LAWS ANN. § 28-3-20 (2006); VA. CODE ANN. § 40.1-113(A) (2015). 119. N.Y. LAB. LAW § 141(1). 2.GERSTEIN.MAN.FIN (4) (DO NOT DELETE) 7/7/2024 8:03 PM 224 ARKANSAS LAW REVIEW Vol. 77:2 sensible also to take into account, as many state penalty schemes do, an employer’s history of violations and penalize repeat violators more harshly. It may also be worth considering a more stringent penalty scheme for violations involving prohibited hazardous occupations or workplaces that place children in physical danger. Above all, penalty levels should be set with the overarching goal in mind of deterring violations and punishing them when they occur. At the very least, states should adopt a penalty schedule that is equal to or greater than the penalties under the FLSA. 4. Additional Recommendation: Allow Penalties to Be Distributed to Child Labor Victims (Reframing Penalties as Damages if Needed), or Use Penalty Funds to Remediate Harm to Victims Penalties in child labor cases are remitted to the government.120 Federal and state laws do not generally contain provisions aimed at remediating the harm of violations to the victims, nor requiring the employer to in any way address the needs of the victims.121 This feature of child labor laws in the United States has two major implications. First, children’s needs are overlooked. While deterrence and prevention are critical goals of labor law enforcement, redressing harm is also important, and enforcement of all kinds of laws have evolved to take a more victim and survivor-focused approach. When vulnerable children are 120. See Lorena Roque & Sapna Mehta, CLASP Federal Recommendations to Combat Child Labor, CTR. L. SOC. POL’Y (Mar. 7, 2024), [https://perma.cc/6WNT-8SHE]; see, e.g., Marshall v. Jerrico, Inc., 446 U.S. 238, 246 (1980). 121. One recent exception to this general approach involves a March 2024 consent judgment involving the USDOL WHD and a Tennessee manufacturer of outdoor power equipment; it required the employer to set aside $1.5 million as disgorgement of thirty days’ profits to be used for the benefit of the children employed illegally. US Department of Labor Requires Tennessee Parts Manufacturer to Turn Over Profits From Oppressive Child Labor Use, Compensate Victims, U.S. DEP’T LAB. (Mar. 25, 2024), [https://perma.cc/UY98-6HMJ]. 2.GERSTEIN.MAN.FIN (4) (DO NOT DELETE) 7/7/2024 8:03 PM 2024 STATE POLICY LEVERS 225 exploited at work, especially in the more severe cases, their needs should be addressed.122 Second, the current enforcement scheme does not incentivize reporting of violations. In many workplace enforcement cases, such as those involving wages or discrimination, worker/victims receive financial redress: back wages, liquidated damages, lost compensation, compensatory, and/or punitive damages.123 These remedies help make wronged workers whole; they also give workers some incentive to report violations, despite the many obstacles to reporting that exist. In contrast, in the case of child labor enforcement, the remedies are generally injunctive relief and penalties for the government.124 From the point of view of the minor involved, enforcement leads only to the loss of income resulting from their removal from a job that, while dangerous, may have been a needed source of income for themselves or their families. Addressing the needs of child labor victims should be part of any policy proposal. Penalties could be distributed to victims, or, if state law requires penalties to accrue only to the state, liquidated damages provisions could be added as additional available relief. As noted above, Wisconsin has a provision to this effect for certain child labor violations; this approach could be expanded upon and adopted elsewhere.125 Another approach would be earmarking penalties specifically to be used to services provided to victims. 122. For more details on remediation programs, see the Centre for Child Rights and Business, a non-governmental organization that provides rapid response remediation service to businesses wishing to address the needs of child labor victims in their supply chains. Child Labour Prevention and Remediation, CTR. FOR CHILD RTS. AND BUS., [https://perma.cc/HA3L-FJY8] (last visited Mar. 4, 2024). 123. See, e.g., Remedies for Employment Discrimination, U.S. EQUAL EMP. OPPORTUNITY COMM’N, [https://perma.cc/5RJN-PE7D] (last visited Mar. 4, 2024). 124. See, e.g., SARAH A. DONOVAN & JON O. SHIMABUKURO, CONG. RSCH. SERV., R44548, THE FAIR LABOR STANDARDS ACT (FLSA) CHILD LABOR PROVISIONS 15 (2016). 125. WIS. STAT. ANN. § 103.82 (2023). 2.GERSTEIN.MAN.FIN (4) (DO NOT DELETE) 7/7/2024 8:03 PM 226 ARKANSAS LAW REVIEW Vol. 77:2 C. Increase Criminal Sanctions 1. Initial Observations Criminal penalties for child labor violations are generally quite minimal. Weaknesses in our regulatory systems have been cited as calling for criminal prosecutions of corporations for various kinds of abuses, including related to workplace laws.126 However, if criminal penalties for child labor violations are nominal—treated in a similar manner as, for example, disorderly conduct, loitering, harassment, and low-level retail theft (as in Pennsylvania127)—it sends a strong and unhelpful message to employers about the relative importance of child labor laws. In addition, district attorneys and other prosecutors are unlikely to expend their limited prosecutorial resources on cases with such extremely low-level criminal penalties. However, as with civil penalties, increasing criminal penalties alone will be insufficient to address the surge in child labor. Even with higher potential charges, few prosecutions are likely to occur: the criminal burden of proof is high, prosecutors’ caseloads are high, and the subject matter is unfamiliar to them.128 And criminal prosecution is likely inappropriate for many cases, such as first-time non-severe hours violations. Also, criminal prosecutions under current law may be more likely to involve lower-level front line workers than higher-tier corporate actors. A discussion of the history and flaws in the criminal justice system is beyond the scope of this Article.129 It is worth noting, 126. See generally RENA STEINZOR, WHY NOT JAIL? INDUSTRIAL CATASTROPHES, CORPORATE MALFEASANCE, AND GOVERNMENT INACTION (2015). 127. Summary Offenses in Pennsylvania, CMTY. LEGAL SERVS. OF PHILA. (Apr. 22, 2014), [https://perma.cc/E4TJ-8KKB]. 128. See Beth Parker, Report Finds Prosecutor Case Backlog Has Worsened since the Pandemic, Harming the Judicial System, ASS’N PROSECUTING ATT’YS (Jan. 18, 2024), [https://perma.cc/LF5U-GQLB]; Katherine Kaufka Walts, Child Labor Trafficking in the United States: A Hidden Crime, SOC. INCLUSION, June 23, 2017, at 65 (regarding training for law enforcement that often focuses on sex trafficking but not labor trafficking). 129. For a discussion of general criminal justice concerns in relation to prosecution of workplace rights violations, see Anthony Damelio, Making Wage Theft Costly: District Attorneys and Attorneys General Enforcing Wage and Hour Law, 49 FORDHAM URB. L.J. 109, 113 (2021); Benjamin Levin, Wage Theft Criminalization, 54 UC DAVIS L. REV. 1429, 1429-30 (2021); César F. Rosado Marzán, Wage Theft as Crime: An Institutional View, 20 J.L. SOC’Y 300, 300-01 (2020); Michael Migiel-Schwartz, Why District Attorneys Should 2.GERSTEIN.MAN.FIN (4) (DO NOT DELETE) 7/7/2024 8:03 PM 2024 STATE POLICY LEVERS 227 however, that some criminal justice reform concerns can potentially be addressed even as cases are brought. For example, prosecutors may charge corporations and not individuals.130 Also, prosecution may have considerable deterrent impact on employer conduct even without incarceration, because of reputational and other effects. The dispositions to date of criminal child labor cases have been modest: a Michigan meat processor recently pled guilty in relation to a teenager whose hand was amputated in a meat grinder.131 The sentence included only payment of $1,143—$500 in penalties plus additional costs and fees.132 It is likely that well-publicized prosecutions of child labor violations would help deter violations. While there are no studies directly on point about deterrence resulting from criminal prosecution of workplace violations, a criminal justice scholar examining deterrence observed that changes in enforcement and punishment can affect some kinds of behavior, including “calculated instrumental crimes such as tax evasion.”133 This may be true of child labor law noncompliance as well. It is critical that laws and resulting prosecutions focus on the employers who have committed child labor violations, not on parents or guardians, who are likely struggling and potentially exploited workers themselves. Prosecuting parents or guardians would be highly counter-productive, chilling reporting of child labor violations, moving these practices even further underground, as well as harder to detect and investigate. Prosecuting parents or guardians will ultimately badly hinder the government’s ability to stop child labor violations. Indeed, a bill Take Up Wage Theft Criminalization, ONLABOR (Feb. 22, 2021), [https://perma.cc/AY8Q-4G5T]. For a discussion of practical concerns involved in prosecuting worker exploitation cases, see How District Attorneys and State Attorneys General are Fighting Workplace Abuses, supra note 24, at 26-28. 130. See U.S. DEPARTMENT OF JUSTICE, JUSTICE MANUAL, tit. 9.28.000 (2023), [https://perma.cc/3A5X-2WXT]. 131. Ionia Meat Processor Sentenced After Pleading Guilty to Illegally Employing Minor, MICH. DEP’T OF ATT’Y GEN. (Aug. 8, 2023), [https://perma.cc/5N8K-PUJD]. 132. Id.; $500 Fine for Employer Behind Gruesome Teenage Amputation Incident, IAMAW 141 (Aug. 10, 2023), [https://perma.cc/SC8T-Q8M2]. 133. Michael Tonry, Learning from the Limitations of Deterrence Research, 37 CRIME & JUST. 279, 279-82 (2008). 2.GERSTEIN.MAN.FIN (4) (DO NOT DELETE) 7/7/2024 8:03 PM 228 ARKANSAS LAW REVIEW Vol. 77:2 introduced in Colorado in 2024 would eliminate a provision penalizing parents or guardians.134 2. Landscape Most states have criminal penalties for child labor violations, typically misdemeanors or other low-level crimes.135 Criminal penalties specifically for child labor violations are generally located in labor statutes, not in state penal or criminal codes, so many prosecutors may be unaware of potential charges.136 Child labor criminal prosecutions occur extremely rarely. State provisions creating criminal consequences often include both a penalty dollar amount and a potential period of incarceration. For example, under Maryland law, a person who employs a minor in violation of the child labor law “is guilty of a misdemeanor and on conviction is subject to a fine not exceeding $1,000 or imprisonment not exceeding 90 days or both.”137 As with civil monetary penalties, criminal sanctions in some states are lower for a first offense than for subsequent offenses, including in jurisdictions such as in Alabama, New York, and West Virginia.138 Some states do not specify that a child labor violation amounts to a misdemeanor or felony, but rather the statute states that the employer will be prosecuted with a criminal fine or imprisonment. For instance, in Louisiana, the statute reads that the employer will be fined between $100 and $500 dollars, imprisoned for thirty days to six months, or both.139 In several states, child labor violations can rise to felony status, particularly for second or subsequent offenses (Alaska,140 Michigan for third offense141), situations where there is death or 134. H.B. 24-1095, 74th Gen. Assemb., 2d Reg. Sess., (Colo. 2024). 135. Hazardous Employment Restrictions, in THOMAS R. YOUNG, 1 LEGAL RIGHTS OF CHILDREN § 14:17 (3d ed. 2023). 136. See 50 State Survey Spreadsheet, supra note 23. 137. MD. CODE ANN., LAB. & EMPL. §3-216(c)(1) (1991). 138. ALA. CODE § 25-8-59(p) (2023); N.Y. LAB. LAW § 145 (2005); W. VA. CODE ANN. § 21-6-10 (2023). 139. LA. STAT. ANN. § 23:231 (1997). 140. ALASKA STAT. ANN. § 23.10.370(b) (1995). 141. MICH. COMP. LAWS ANN. § 409.122(2) (1981). 2.GERSTEIN.MAN.FIN (4) (DO NOT DELETE) 7/7/2024 8:03 PM 2024 STATE POLICY LEVERS 229 serious physical injury (Washington142), or both (Alabama,143 Arkansas144). In Connecticut, child labor violations are a Class D felony;145 in New Hampshire, a “natural person” (i.e., a human being) who violates the child labor laws is guilty of a misdemeanor, but “any other person” (i.e., a corporation) is guilty of an unspecified felony.146 More often, criminal penalties are extremely modest. In Colorado, knowingly violating or failing to comply with child labor laws is a misdemeanor, punishable by a fine of $20 to $200 per offense (increased to $100 to $500 for a second or subsequent offense).147 In Pennsylvania, a child labor violation is a “summary offense,”148 which is “the most minor type of criminal offense in Pennsylvania, and is often called a ‘non-traffic citation’ . . . . Summary offenses can include disorderly conduct, loitering, harassment, and low-level retail theft, among others.”149 The penalty for a first conviction is $500 per violation; subsequent offenses may result in a $1,500 fine, up to ten days’ imprisonment, or both.150 In Kansas, violating child labor laws is a misdemeanor resulting in a fine of $25 to $100 or imprisonment in county jail for thirty to ninety days.151 And in Mississippi, employing minors in certain hazardous occupations is a misdemeanor; penalties include a $50 to $100 fine, ten to sixty days in county jail, or both.152 Another avenue for prosecutors includes penal or criminal code provisions, such as those related to child abuse or endangering the welfare of a child.153 One of the few child labor 142. WASH. REV. CODE ANN. § 49.12.410(2) (2004). 143. ALA. CODE § 25-8-59(q) (2016). 144. ARK. CODE ANN. § 11-6-103(i) (2023). 145. CONN. GEN. STAT. ANN. § 31-15 (2007); CONN. GEN. STAT. ANN. § 31-15a (2013). 146. N.H. REV. STAT. ANN. § 276-A:7 (1973). 147. COLO. REV. STAT. ANN. § 8-12-116 (2022). 148. 43 PA. STAT. AND CONS. STAT. ANN. § 40.11(b) (2013). 149. Summary Offenses in Pennsylvania, supra note 127. 150. 43 PA. STAT. AND CONS. STAT. ANN. § 40.11(b) (2013). 151. KAN. STAT. ANN. § 38-612 (2023). 152. MISS. CODE ANN. § 71-1-29 (2023). 153. See, e.g., N.Y. PENAL LAW § 260.10 (2010); WIS. STAT. ANN. § 948.03 (2023). 2.GERSTEIN.MAN.FIN (4) (DO NOT DELETE) 7/7/2024 8:03 PM 230 ARKANSAS LAW REVIEW Vol. 77:2 prosecutions in recent history was brought under New York’s endangerment statute.154 3. Recommendations While the need for criminal justice reform is urgent, and some advocates may question the approach of addressing social problems through prosecution, it seems inappropriate that child labor violation criminal penalties are so modest compared with other crimes that have far less human impact. Accordingly, criminal penalties for child labor charges should be increased to levels more appropriate to the seriousness of the violations. It may also be advisable to distinguish between hazardous occupations and hours of service violations. Guiding considerations in setting the appropriate criminal penalties could include: What penalty will likely deter violations? What types of charges are prosecutors with limited experience and resources likely to consider? And, most importantly, what kind of penalty is commensurate with the harm that has been done? Statutes related to the endangerment of a child may provide useful guidance: child labor laws could treat employers that have endangered children similarly to anyone else who does so, rather than offering employers markedly more lenient treatment. D. Hold Lead Corporations Accountable 1. The Need for Greater Accountability by Lead Corporations One common feature present in some of the most extreme child labor violation cases is a “fissured workplace” business model in which a lead corporation (often a large multinational corporation) contracts or subcontracts key aspects of the work to other employers, who then use staffing or employment agencies, 154. A.G. Underwood Announces Guilty Plea of Cortland County Farmer for Child Labor Violations Following Death of 14-year-old Employee, N.Y. STATE ATT’Y GEN. (Sept. 20, 2018, 3:41 PM), [https://perma.cc/Q9XW-PYBN]. 2.GERSTEIN.MAN.FIN (4) (DO NOT DELETE) 7/7/2024 8:03 PM 2024 STATE POLICY LEVERS 231 all of which serve to insulate the lead corporation from clear accountability under the law.155 The definition of “employ” under the FLSA is extremely broad—”to suffer or permit to work”156—yet case law developed over years makes it more difficult than it should be to hold lead corporations responsible as joint employers,157 which allows household name corporations to deflect responsibility for these violations and place the blame with subcontractors and staffing agencies. Lead corporations, more than any entity, have the ability to prevent child labor violations in their supply chains.158 They can extensively vet contractors before engaging them, regularly monitor them, and terminate contracts immediately where child labor is found.159 Also, rather than contracting, subcontracting, or using staffing agencies, large corporations also can directly hire workers as in-house employees, as meat processing giant JBS did after its on-site janitorial contractor was found to have committed extensive, serious child labor violations.160 Under current law, even if there are repeat or widespread child labor violations within supply chains for a corporation, it is far too challenging to hold that corporation responsible: While obtaining a finding of joint employer liability is not impossible under current law, it is more difficult than it should be, and corporations have ample legal resources to resist such lawsuits. To prevent and deter child labor violations, lead corporations should more readily be held liable for violations in their supply chains. This should be the case as a general matter, but it is especially important to hold lead corporations responsible in situations where their supply chains, contractors, or subcontractors have committed repeat violations, unremedied 155. See WEIL, supra note 35, at 8-12; Tony Moore, The “Fissured Workplace” and Child Labor, HELLER SCH. (Nov. 7, 2023), [https://perma.cc/EU8V-JFMZ]. 156. 29 U.S.C. § 203(g) (2018). 157. RUCKELSHAUS ET AL., supra note 80, at 33-34. 158. Laura Padin & Sally Dworak-Fisher, Corporations Have a Duty to Prevent Child Labor Abuses in Their Supply Chains. Here’s How They’re Still Getting Off the Hook, FORTUNE (Mar. 16, 2023, 10:29 AM), [https://perma.cc/26LQ-JF8M]. 159. Id. 160. JBS USA Announces Creation of JBS Sanitation, JBS FOODS (May 3, 2023), [https://perma.cc/XR27-UN6J]. 2.GERSTEIN.MAN.FIN (4) (DO NOT DELETE) 7/7/2024 8:03 PM 232 ARKANSAS LAW REVIEW Vol. 77:2 violations, or violations that are widespread (in multiple locations or involving a number of minors). 2. State Law Precedents for Accountability by Lead Corporations A number of state laws provide examples of statutes that impose joint and several liability on higher-tier corporations, or otherwise require accountability of more than one entity in a fissured workplace structure. a. General Joint and Several Liability District of Columbia law makes general contractors jointly and severally liable along with subcontractors for violations of wage payment, living wage, and paid sick and safe leave laws.161 California has a more detailed “client employer” law imposing liability on companies who use subcontractors to provide more than five workers that perform work for the company or at the company’s place of business. Under the statute, a “client employer” is jointly liable for payment of unpaid wages and for securing workers’ compensation insurance.162 The law also bars a client employer from shifting legal duties or liabilities related to the state’s occupational safety and health laws.163 Under this law, the California Labor Commissioner’s Office in 2018 found a Cheesecake Factory jointly liable for wage-theft violations by a janitorial subcontractor and in 2024 reached a $1 million settlement with Cheesecake Factory and some of its contractors.164 161. D.C. CODE ANN. § 32-1303(5) (2017). The statute also requires indemnification by the subcontractor for violations, unless the general contractor’s lack of prompt payment to the subcontractor caused the violations. D.C. CODE ANN. § 32-1303(5). 162. CAL. LAB. CODE § 2810.3 (2020). While it is silent regarding indemnification, California’s law does not prohibit a client employer from pursuing remedies against a contractor for liability caused by the contractor’s violations. 163. CAL. LAB. CODE § 2810.3. 164. Christina Caron, Cheesecake Factory is Found Partly Liable in $4.6 Million Janitor Wage Theft Case, N.Y. TIMES (June 12, 2018), [https://perma.cc/RZ3Q-AWZK]; Jeanne Kuang, Why Cheesecake Factory Wage Theft Matters for California, CAL. MATTERS (Jan. 23, 2024), [https://perma.cc/F36T-W4C8]. 2.GERSTEIN.MAN.FIN (4) (DO NOT DELETE) 7/7/2024 8:03 PM 2024 STATE POLICY LEVERS 233 b. The Construction Industry Because of the construction industry’s high rate of violations and fissured structure, a number of states have passed laws focused on construction contractors, creating liability for prime or general contractors for wage violations committed by their subcontractors. States that have passed such laws include California, Hawaii, Illinois, Maryland, Minnesota, New Jersey, New York, Nevada, and Virginia.165 Some of these laws require indemnification by the subcontractor for violations, unless the general contractor’s lack of payment to the subcontractor caused the violations.166 c. Temporary and Staffing Agencies The District of Columbia, Illinois, New Jersey, and Washington all have laws specifically focused on temporary or staffing agencies because of high violation rates, and to prevent violations from falling between the cracks if neither the temporary/staffing agency nor their job placements take responsibility for workplace compliance. Illinois and Washington laws create workplace safety and health obligations: both the agency and client are responsible for training workers about specific on-the-job hazards.167 District of Columbia law creates joint and several liability for temporary staffing agencies and their clients for violations of the wage payment, living wage, and paid sick and safe leave laws.168 Without creating joint liability for temporary agencies and their clients, New York law prohibits employment agencies from placing minors in employment that violates the child labor laws.169 165. CAL. LAB. CODE § 218.7 (2022); HAW. REV. STAT. ANN. § 388-11.5 (2023); 820 ILL. COMP. STAT. ANN. 115/13.5 (2023); MD. CODE ANN., LAB. & EMP. § 3-507.2 (2018); MINN. STAT. ANN. § 181.165 (2023); N.J. STAT. ANN. § 34:11-67.1 (2020); N.Y. LAB. LAW § 198-E (2024); NEV. REV. STAT. ANN. § 608.150 (2023); VA. CODE ANN. § 11-4.6 (2023). 166. Id. 167. 820 ILL. COMP. STAT. ANN. 175/85 (2023); WASH. REV. CODE ANN. § 49.17.490 (2021). 168. Temporary staffing firms must indemnify their client for money found owing as a result of certain labor violations, unless their contract provides otherwise. D.C. CODE ANN. §32-1303(6) (2017). 169. N.Y. LAB. LAW § 134 (2024). 2.GERSTEIN.MAN.FIN (4) (DO NOT DELETE) 7/7/2024 8:03 PM 234 ARKANSAS LAW REVIEW Vol. 77:2 d. The Garment Industry New York and California have provisions creating lead corporation up-chain liability in some circumstances for violations by garment suppliers or subcontractors. New York law creates liability for any manufacturer or contractor in the apparel industry that “ships, delivers or sells any apparel . . . who knew or should have known that such goods were produced in violation of” the state’s wage payment and minimum wage laws, and for any manufacturer or contractor “who knew or should have known with the exercise of reasonable care or diligence” of a subcontractor’s failure to comply with wage payment or minimum wage laws.170 Even retailers have potential liability if they sell apparel items that they knew or should have known were produced in violation of wage laws, unless certain factors are present.171 The Garment Worker Protection Act in California creates joint and several liability for manufacturers, contractors, and brand guarantors (defined in the statute) for wage violations by contractors who perform work for them.172 3. Procurement Consequences for Lead Corporations with Child Labor Violations in Their Supply Chains As discussed in more detail below, the procurement process offers significant potential for deterring violations. State and local governments should not enter into contracts with corporations that have a history of repeat or widespread child labor in their supply chains. A recently proposed bipartisan federal bill, discussed in more detail below, takes this approach. 4. Efforts to Disincentivize or Prohibit Workplace Fissuring Disincentivizing workplace fissuring would encourage more direct hiring by lead corporations. Laws protecting temporary workers in Illinois and New Jersey both remove incentives to 170. N.Y. LAB. LAW §§ 345(10)(a), 345-a(1) (2024). 171. N.Y. LAB. LAW § 345(10)(b). 172. CAL. LAB. CODE ANN. § 2673.1(a-b) (2022). The contractor, manufacturer or brand guarantor may separately seek indemnification. 2.GERSTEIN.MAN.FIN (4) (DO NOT DELETE) 7/7/2024 8:03 PM 2024 STATE POLICY LEVERS 235 fissure by requiring employers to pay temp workers similar wages as direct hires.173 New Jersey’s law also prohibits excessive “conversion” fees that temporary firms often charge to third-party clients that would like to hire temporary workers in-house.174 Newark, New Jersey requires hotels to directly employ (without subcontracting or using staffing agencies) all “Critical Employees,” (housekeeping, food preparation, front desk, engineering, and other essential hotel workers).175 173. 820 ILL. COMP. STAT. ANN. 175/42 (2023). In New Jersey, the temporary agency and third-party client are jointly and severally liable for any violations of this provision. N.J. STAT. ANN. § 34:8D-7(b) (2023). 174. N.J. STAT. ANN. § 34:8D-7(a)(2). 175. NEWARK, N.J., REV. ORDINANCES § 9:1-4. 2.GERSTEIN.MAN.FIN (4) (DO NOT DELETE) 7/7/2024 8:03 PM 236 ARKANSAS LAW REVIEW Vol. 77:2 E. Allow Lawsuits for Damages, Rather Than Limiting Minors to Workers’ Compensation as the Exclusive Remedy, When Minors Are Killed or Injured During Employment Prohibited by Child Labor Laws 1. Background Workers’ compensation insurance, required in all states except Texas, provides medical care and/or cash benefits for workers who are injured or become ill as a result of their jobs.176 If a worker dies from a covered injury or illness, their surviving spouse, minor children, and/or dependents receive survivor benefits.177 The workers’ compensation insurance premium is calculated based on the number of workers, worker remuneration, and the type of work, with higher premiums for higher-risk work.178 Workers’ compensation insurance is experience-rated; employers’ rates increase when employees have claims.179 Workers’ compensation insurance was originally created in the early twentieth century in what has been described as a “grand bargain”: injured workers receive the benefit of what is supposed to be guaranteed no-fault occupational injury and illness insurance; in exchange, they are limited to what is referred to as the “exclusive remedy” of workers’ compensation and may not sue employers for damages.180 2. Landscape Some states allow minors to file damages lawsuits when injuries or deaths occur during prohibited employment, not limiting them to workers’ compensation as the exclusive remedy. Several states allow lawsuits against employers for damages, 176. Are Employers Required to Have Workers’ Compensation Insurance in Texas?, TEX. DEP’T OF INS. (Mar. 22, 2023), [https://perma.cc/PY3X-Y89K]; Types of Workers’ Compensation Benefits, NAT’L ACAD. SOC. INS., [https://perma.cc/QZ8T-M9Q7] (last visited Apr. 11, 2024). 177. Id. 178. How is Workers’ Compensation Calculated?, ADP, [https://perma.cc/29TM-3WDF] (last visited Apr. 11, 2024). 179. Id. 180. SCOTT D. SZYMENDERA, CONG. RSCH. SERV., R44580, WORKERS’ COMPENSATION: OVERVIEW AND ISSUES 2 (2020). 2.GERSTEIN.MAN.FIN (4) (DO NOT DELETE) 7/7/2024 8:03 PM 2024 STATE POLICY LEVERS 237 either along with or instead of workers’ compensation, when minors are injured or killed during employment in violation of child labor laws. These provisions provide more meaningful redress for minors. This approach can also change an employer’s risk calculus and thereby deter violations. If an employer hires children to do prohibited hazardous work and a child is killed or gravely injured, the employer’s potential financial exposure is likely considerably greater in a lawsuit for damages than it would be in the workers’ compensation system, where the likely worst consequence would be a somewhat higher annual workers’ compensation insurance premium. Colorado in 2023 passed a law that allows aggrieved parties, including parents of children protected by the state’s child labor law, to file damages lawsuits in addition to seeking workers’ compensation remedies if a minor is injured during a week when the employer intentionally required them to work hours in violation of what state law permits, or if a minor is injured while engaged in work prohibited by the law.181 New Jersey has a similar provision.182 Illinois law allows minors or their legal representatives to choose between workers’ compensation and a lawsuit in court.183 They must make this selection within six months after injury or death or six months after appointment of a legal representative, whichever is later.184 Several states have case law allowing damages lawsuits and not limiting remedies to workers’ compensation when state child labor laws were being violated and children were injured or killed on the job,185 although in some states, courts have disallowed such lawsuits when there were only federal—and no state—child labor violations.186 181. COLO. REV. STAT. ANN. § 8-12-117 (2023). To avoid double recovery, damages from a lawsuit are reduced by the amount of workers’ compensation benefits received. 182. N.J. STAT. ANN. § 34:15-10 (1999). 183. 820 ILL. COMP. STAT. ANN. 305/5 (2019). 184. 820 ILL. COMP. STAT. ANN. 305/5. 185. Maynerich v. Little Bear Enters., Inc., 485 P.2d 984, 986 (N.M. Ct. App. 1971); Blancato v. Feldspar Corp., 522 A.2d 1235, 1238 (Conn. 1987); Whitney-Fidalgo Seafoods, Inc. v. Beukers, 554 P.2d 250, 253-54 (Alaska 1976). 186. Boyd v. Permian Servicing Co., 825 P.2d 611, 613-14 (N.M. 1992); Maser v. L. & H. Welding & Mach. Co., 1 P.3d 642, 646-47 (Wyo. 2000). 2.GERSTEIN.MAN.FIN (4) (DO NOT DELETE) 7/7/2024 8:03 PM 238 ARKANSAS LAW REVIEW Vol. 77:2 3. Increased Compensation When Minors Employed in Violation of Child Labor Laws Are Injured or Killed A number of state workers’ compensation laws require increased compensation if a minor is injured or killed on the job while employed in contravention of the child labor laws. In some instances, this is for any child labor violation (state or federal), in other cases, it is for state violations only, or for certain categories of violations (e.g., hazardous work). Part of the logic of these policies is to compensate for the far greater economic losses involved: for example, lost earnings for a fifteen-year-old child permanently disabled by a workplace injury are greater than those of a forty-eight-year-old adult. Overall, this approach is likely less effective in deterring violations because it does not as starkly increase employers’ outside potential liability as much as permitting damages lawsuits does. However, this approach does increase employer liability somewhat and also provides support to minors who have been injured. In Rhode Island, workers’ compensation benefits are tripled if a minor is injured while employed in violation of state or federal law.187 Several states double compensation owed in such situations, either for state law violations only or for state or federal violations.188 There are numerous variations on this approach: judicially determined “additional compensation,”189 double compensation if the employee is injured because of the employer’s “serious and wilful [sic] misconduct,”190 double compensation but with exceptions related to educational programs or between-semester work,191 double compensation but with $7,500 or $15,000 caps depending on the violation type,192 and double compensation but only if the minor did not 187. 28 R.I. GEN. L. ANN. § 28-33-22 (2019). 188. FLA. STAT. ANN. § 440.54 (1991); MASS. GEN. L. ANN. ch. 152, § 28 (2009); MISS. CODE ANN. § 71-3-107 (1990); WIS. STAT. ANN. § 102.60 (2017). 189. FLA. STAT. ANN. § 440.54. 190. MASS. GEN. L. ANN. ch. 152, § 28. 191. MISS. CODE ANN. § 71-3-107. 192. WIS. STAT. ANN. § 102.60. 2.GERSTEIN.MAN.FIN (4) (DO NOT DELETE) 7/7/2024 8:03 PM 2024 STATE POLICY LEVERS 239 misrepresent their age in writing to the employer.193 In some states, like Arizona, Missouri, and Pennsylvania, workers’ compensation is increased but only by 50% in such child labor violation cases.194 Some state laws relieve insurance companies from responsibility for additional payments, instead placing the burden on the employer.195 This approach could help deter violations, because the employer—not the carrier—risks potentially considerable additional costs. However, it also places the burden of pursuing the employer and the risk of employer nonpayment on the injured/deceased child and their family. Some states require the workers’ compensation insurance carrier to pay the additional compensation, but allow the carrier to seek payment from the employer for any amount that is owed beyond the usual benefits for the injury, had the child labor violation not occurred.196 This approach relieves the injured child or their family from bearing the risk of an employer’s insolvency or intransigence; instead, the carrier must pay the benefits and pursue the employer itself, a fair result given that the carrier is better able to bear this risk and had more ability to prevent or prepare for it by exercising due diligence regarding its customers. 4. Recommendations When minors are injured or killed on the job while performing work prohibited by either state or federal child labor laws, the policy most protective of children would allow these minors or their parents/guardians both to receive workers’ 193. ARK. CODE ANN. § 11-9-504 (2023); OKLA. STAT ANN. tit. 85A, § 48 (2014). 194. To make it more likely that the minor and/or their family receive the additional compensation and decrease the risk of default by the employer, Pennsylvania law makes payment of such additional compensation immediately due and payable. 77 PA. STAT. AND CONS. STAT. ANN. § 672 (1972). 195. FLA. STAT. ANN. § 440.54 (1991); MD. CODE ANN. LAB. & EMP. § 9-606 (1991); MISS. CODE ANN. § 71-3-107; N.J. STAT. ANN. § 34:15-10 (1999); N.Y. WORKERS’ COMP. LAW § 14-a (2017); 77 PA. STAT. AND CONS. STAT. ANN. § 672; CAL. LAB. CODE § 4557 (1961); N.H. REV. STAT. ANN. § 281-A:33 (1989). Ohio law provides for recovery of the additional payments from the employer only if workers’ compensation insurance has been provided by the state-run workers’ compensation fund. OHIO REV. CODE ANN. § 4123.89 (1993). 196. 28 R.I. GEN. LAWS ANN. § 28-33-22 (2019); ARIZ. REV. STAT. ANN. § 23-905 (1985); MASS. GEN. LAWS ANN. ch. 152, § 28 (2009). 2.GERSTEIN.MAN.FIN (4) (DO NOT DELETE) 7/7/2024 8:03 PM 240 ARKANSAS LAW REVIEW Vol. 77:2 compensation insurance and also to file damages lawsuits against employers, as Colorado and New Jersey do.197 This approach would help deter employer violations and provide redress for children injured on the job. For states that opt for the less impactful approach of maintaining the exclusive remedy of workers’ compensation but increasing the amount owed in such situations, recommended policies include tripling compensation amounts as Rhode Island does;198 applying increased compensation requirements to violations of both state and federal laws; requiring the workers’ compensation carrier to pay increased amounts and seek indemnification from the employer; and requiring immediate payment of additional monetary compensation required. F. Prevent Government Contracting with Corporations with Widespread or Unresolved Child Labor Violations Themselves or in Their Supply Chains Ideally, government procurement should create high quality jobs.199 At the very least, government agencies should require complete compliance with labor standards laws, including child labor provisions, by current or would-be government contractors. Statutes should require child labor compliance for government contractors and their suppliers, vendors, and subcontractors.200 As discussed in more detail below, a bipartisan U.S. Senate bill to this effect has been proposed. Precedents for this approach exist at the local level. Numerous local government ordinances require bidders for higher-dollar public projects to meet “responsible contractor” criteria including prior compliance with workplace laws.201 197. COLO. REV. STAT. ANN. § 8-12-117 (2023); N.J. STAT. ANN. § 34:15-10. 198. 28 R.I. GEN. LAWS § 28-33-22. 199. For more information on the role of government procurement in driving job quality, see U.S. Employment Plan, JOBS TO MOVE AM. (Apr. 10, 2020), [https://perma.cc/V4ZP-XAZG]. 200. In the rare situation in which such statutes would make it impossible to procure needed goods or services, a modestly delayed effective date could address the problem. 201. The Role of Local Government in Protecting Workers’Rights, supra note 97, at 44. 2.GERSTEIN.MAN.FIN (4) (DO NOT DELETE) 7/7/2024 8:03 PM 2024 STATE POLICY LEVERS 241 Other localities have wage theft ordinances that bar those with histories of recent workplace law violations.202 Using the leverage of procurement to deter and address violations has the potential for considerable impact. Given the enormous scale of government contracting, even by small states,203 this measure would sharply increase the potential consequences of child labor violations for the thousands of corporations that are state government contractors and for the subcontractors, vendors, and suppliers in their supply chains. G. Enact State-Level “Hot Goods” or Similar Provisions to Prevent Products Illegally Manufactured Using Child Labor from Moving in Commerce 1. Background Under the FLSA’s “hot goods” provisions, the USDOL may seek a court order to prevent interstate shipment of goods produced in violation of federal minimum wage, overtime, or child labor provisions.204 The order can apply to the employer that manufactured the products, as well as to anyone who possesses the goods.205 The illegally produced goods must have been produced in the past ninety days for minimum wage and overtime violations, or within a shorter period—the past thirty days—for child labor violations.206 The “hot goods” provision 202. Prevailing Wage, ILL. ECON. POL’Y INST., [https://perma.cc/XYH3-EWQY] (last visited Mar. 4, 2024); Mayor Cantrell Signs Ordinance Establishing More City Contractor Responsibility, CITY OF NEW ORLEANS (Nov. 16, 2021) [https://perma.cc/3J7H-MT47]; TOLEDO, OHIO, MUN. CODE § 187.12; The Role of Local Government in Protecting Workers’ Rights, supra note 97, at 58. 203. See DANIELLE M. CONWAY, STATE AND LOCAL GOVERNMENT PROCUREMENT, at xiii (2012); DONALD COHEN & ALLEN MIKAELIAN, THE PRIVATIZATION OF EVERYTHING 290 (2021). 204. 29 U.S.C. § 212(a) (1974); 29 U.S.C. § 215 (a)(1) (2022). 205. Jessica Looman, Prohibitions Against the Shipment of “Hot Goods” Under the Child Labor Provisions of the Fair Labor Standards Act, U.S. DEP’T OF LAB. (Aug. 31, 2023), [https://perma.cc/6HSQ-YQUS]. 206. 29 U.S.C. § 212(a); 29 U.S.C. § 215(b). A bipartisan Senate bill, the Child Labor Accountability Act of 2023, would expand the amount of time the USDOL has to trigger the hot goods provision in child labor cases, from the current thirty days to ninety days, consistent with the hot goods time period for minimum wage violations. Rebecca Rainey et al., Punching In: Child Labor Law Violators Facing New Heat from D.C., BLOOMBERG L. (Oct. 30, 2023, 4:20 AM), [https://perma.cc/A56G-7E2H]. 2.GERSTEIN.MAN.FIN (4) (DO NOT DELETE) 7/7/2024 8:03 PM 242 ARKANSAS LAW REVIEW Vol. 77:2 creates a sharp disincentive for violating child labor laws, and creates some consequences for corporations higher in a supply chain. The USDOL has used this provision in relation to child labor violations: in July 2023, for example, the USDOL reached a consent judgment with a national food manufacturing corporation whose subsidiary employed minor teenagers to operate meat-processing equipment prohibited for children under the FLSA.207 The consent judgment followed notification by the USDOL to the employer that objected to shipment of the goods, citing the “hot goods” provision.208 Under the settlement, the corporation agreed to several key conditions to ensure future compliance, including hiring a third-party monitor and reporting regularly to the USDOL, among other measures.209 2. Existing State Precedents and Recommendations To achieve similar results, states should enact their own state-level “hot goods” provisions, to prevent goods produced through illegal child labor from entering the stream of commerce. This would involve empowering the state labor department or its equivalent and/or the state attorney general to seek an injunction preventing shipment of products made using illegal child labor. California and New York have provisions that contain elements of this concept in relation to the garment industry. In California, garment manufacturers must be registered with the state. If apparel is manufactured without registration, state labor enforcers may confiscate the garments and destroy or dispose of them, “provided that the goods shall not enter the mainstream of commerce and shall not be offered for sale.”210 There is a prompt hearing process if a party wishes to contest the confiscation.211 In New York, the attorney general can petition in court to prevent the shipping, delivery, sale, or purchase by any 207. Nationwide Food Manufacturer Agrees to Companywide Compliance with Child Labor Laws After Investigation Finds 2 Teens Employed Illegally in Minnesota, U.S. DEP’T OF LAB. (July, 7, 2023), [https://perma.cc/5TK7-VZJT]. 208. Id. 209. Id. 210. CAL. LAB. CODE § 2680(a) (2000). 211. CAL. LAB. CODE § 2681 (1988). 2.GERSTEIN.MAN.FIN (4) (DO NOT DELETE) 7/7/2024 8:03 PM 2024 STATE POLICY LEVERS 243 manufacturer, contractor, or retailer of apparel produced in the past 180 days in violation of the state’s wage laws.212 The state labor department can confiscate apparel, as well as equipment, from any manufacturer or contractor violating the law if they have had two or more separate violations within the prior three-year period.213 As in California, there is a prompt hearing process available to challenge this action.214 Pursuant to this provision, the state labor department in 2009 seized hundreds of pieces of clothing from a manufacturer, including police uniforms and equipment.215 New York law also has a “tagging” provision that allows the labor department to affix a six-inch tag to any piece of apparel made by employees whose wage rights were being violated.216 The tag bears the words “unlawfully manufactured,” and removing the tag is a misdemeanor for anyone except the labor department or ultimate consumer.217 This provision provides a lighter touch, obviously, than confiscation of goods or stopping them from entering the stream of commerce; however, apparel with an “unlawfully manufactured” tag affixed would presumably be unappealing in department stores and would affect the value of the product. It also serves the purpose of transparency for consumers. Vermont also has a provision along these lines: it prohibits knowingly selling, taking orders for future delivery of, or possessing with intent to sell, products made with child labor unlawful under Vermont law or “under conditions that would be in violation of these provisions if the employment had occurred” in Vermont, with potential penalties of up to $10,000 for violation.218 Other states could pass similar provisions in relation to child labor. These laws could: 212. N.Y. LAB. LAW § 345(10)(c) (2006). 213. N.Y. LAB. LAW § 345-b(1) (2006). 214. N.Y. LAB. LAW § 345(4)(a). 215. A. G. Sulzberger, Police Uniforms Are Seized in Garment Factory Raid, N.Y. TIMES (Apr. 29, 2009), [https://perma.cc/4BJK-EWAM]. 216. N.Y. LAB. LAW § 341-a (1998). 217. N.Y. LAB. LAW § 341-a. 218. See, e.g., VT. STAT. ANN. tit. 21, § 453 (2001). 2.GERSTEIN.MAN.FIN (4) (DO NOT DELETE) 7/7/2024 8:03 PM 244 ARKANSAS LAW REVIEW Vol. 77:2 • Enable the state labor department and/or attorney general to seek an injunction to prevent shipment, delivery or sale of any products made with illegal child labor; • Enable the state labor department to confiscate goods made with illegal child labor; • Allow equipment confiscation, when repeat violations occur in a short time period; • Enable the state labor department to affix a tag to goods of any kind produced using illegal child labor, so that consumers will be aware of the provenance of such goods and can use such knowledge in making purchasing decisions; and • Prohibit sale of products produced with illegal child labor. H. Create a Private Right of Action and/or Whistleblower Program for Child Labor Violations 1. Private Right of Action Currently, the only entities that can enforce child labor laws are government agencies. But many critical workplace laws, such as minimum wage and anti-discrimination statutes, do not rely solely on government enforcement; instead, they also allow workers to file lawsuits in court.219 Private lawsuits have always been a pillar of the enforcement landscape, playing an important role in safeguarding workers’ rights. Creation of a private right of action in relation to child labor violations, with damages for the victims, would create redress for children who have been exploited at work and also incentivize reporting. Inclusion of attorneys’ fees and costs, as in other private rights of action, would enable lawyers to take on these cases.220 This approach would add needed resources in addition to the government, at no cost to the public, to address violations. 219. See, e.g., N.Y. LAB. LAW § 663 (2015); 42 U.S.C. § 2000-e-5(f) (2009); 29 U.S.C. § 216(b) (2022). 220. Forced arbitration would be less likely to thwart child worker cases because many state laws have limitations on minors’ ability to contract. 2.GERSTEIN.MAN.FIN (4) (DO NOT DELETE) 7/7/2024 8:03 PM 2024 STATE POLICY LEVERS 245 2. Whistleblower Right of Action Whistleblower laws exist in many contexts; they expand the pool of potential enforcers while incentivizing reporting of violations. The Securities and Exchange Commission, for example, awards whistleblowers 10% to 30% of the money collected if they have provided high-quality original information leading to an enforcement action of over $1 million.221 The federal False Claims Act, and dozens of state false claims acts, allow whistleblowers, known as qui tam plaintiffs, to sue entities that are defrauding the government, and to recover damages and penalties on the government’s behalf.222 Whistleblowers receive a percentage of the recovery, as well as protection against retaliation.223 California’s Private Attorney General Act (“PAGA”) similarly allows individuals to sue on behalf of the state for penalties for certain labor code violations; PAGA whistleblowers receive a portion of the penalties recovered.224 Illinois’ new temporary worker protection law allows interested parties (“an organization that monitors or is attentive to compliance with public or worker safety laws, wage and hour requirements, or other statutory requirements”) to bring an action for civil penalties.225 In many situations where children are being illegally employed, third parties—co-workers, school officials, community organizations, or customers—become aware of the violations. Creation of a whistleblower right of action, with retaliation protections, would provide victims of child labor violations, as well as adult co-workers, teachers, customers, 221. Office of the Whistleblower, U.S. SEC. & EXCH. COMM’N, [https://perma.cc/3M8Q-T5YA] (last visited Mar. 4, 2024). 222. Myriam Gilles & Gary Friedman, The New Qui Tam: A Model for the Enforcement of Group Rights in a Hostile Era, 98 TEX. L. REV. 489, 491-92 (2020). 223. Id. 224. Although the U.S. Supreme Court recently held in Viking River Cruises, Inc. v. Moriana that the Federal Arbitration Act preempts individuals who have signed forced arbitration provisions from bringing PAGA claims in relation to violations they personally have experienced, it left open the question of whether a worker could file a PAGA lawsuit on behalf of other workers. 596 U.S. 639, 644, 662 (2022). The California Supreme Court recently answered that question in the affirmative. Adolph v. Uber Techs., Inc., 532 P.3d 682 (Cal. 2023). 225. H.R. 2862, 103rd Gen. Assemb., Reg. Sess. (Ill. 2023). 2.GERSTEIN.MAN.FIN (4) (DO NOT DELETE) 7/7/2024 8:03 PM 246 ARKANSAS LAW REVIEW Vol. 77:2 community organizations, or others aware of such violations, with a tangible way to take action to stop the misconduct. A whistleblower program or cause of action in relation to child labor could cover all violations or be limited to those related to hazardous occupations. As with the creation of a private right of action, a whistleblower program would add needed resources in addition to the government226 which could be deployed to combat child labor. I. Enact Stop Work Order Statutes to Enable Immediate Action When There are Ongoing, Egregious, and Dangerous Child Labor Violations Stop-work orders allow enforcement agencies to immediately order cessation of operations at one or more worksites based on a determination that there is an active, ongoing violation of the law.227 They are available under a wide range of local and state laws involving an array of types of illegality. For example, building, fire, or housing code inspectors often have authority to issue stop work orders when they determine a site has unsafe work or conditions.228 While not technically a stop work order, New York’s Apparel Industry Task Force, which investigates labor violations in the apparel industry, has the power to immediately evacuate and close any premises that a specially trained investigator deems to be a serious violation of the fire code.229 A number of states allow for stop work orders in relation to violations of workplace laws, such as workers compensation and prevailing wage statutes.230 New Jersey law allows stop work orders for minimum wage violations, to be issued “at one or more worksites or across all of the employer’s worksites and places of 226. Giles & Friedman, supra note 222, at 490-91. 227. Stop Work Order (SWO), NYC BLDGS., [https://perma.cc/Z8KX-4GX3] (last visited Apr. 11, 2024). 228. Guide: Stop Work Order (SWO) Issuance, NYC BLDGS., [https://perma.cc/EB6Q-YWWJ] (last visited Mar. 4, 2024); MINN. R. 1300.0170 (2015); POLK CNTY., IOWA, CONSTR. CODE ch. 20 (2015). 229. N.Y. LAB. LAW § 344(2)(b) (1998). 230. CONN. GEN. STAT. ANN. § 31-288 (2022); FLA. STAT. ANN. § 440.107(3)(g) (2023); MASS. GEN. LAWS ANN. ch. 152, § 25C(1) (2010); N.Y. WORKERS’ COMP. LAW § 141-a(4) (2016); 2023 Conn. Acts 162 (Reg. Sess.). 2.GERSTEIN.MAN.FIN (4) (DO NOT DELETE) 7/7/2024 8:03 PM 2024 STATE POLICY LEVERS 247 business.”231 New Jersey’s labor department has extensively exercised this authority.232 For example, in 2023, the department issued stop work orders to twenty-seven Boston Market locations based on wage violations, and recovered $630,000 for underpaid workers in less than a month.233 Because of their stark impact, stop work orders generally incorporate due process rights for the employer, including swift ability to challenge an order.234 Stop work orders also have consequences for workers, who will be unemployed while an order is in effect. To address this shortcoming, a 2023 Massachusetts bill creating stop work authority would require the employer to pay workers for the first ten days the order is in effect.235 Overall, stop work orders are a powerful tool: they enable a government agency to halt dangerous conditions or severe violations but require consideration of due process concerns and the impact on workers. Creating such authority for violations of child labor laws would allow labor enforcers to immediately address situations in which minors’ health and well-being are at serious risk because of ongoing violations. J. Require and Effectively Use Employment Certificates or Work Permits to Prevent Violations 1. Landscape An employment certificate, also known as a work permit or working papers, is a legal document stating a minor is eligible for employment.236 They are generally issued either by the state labor department or the minor’s school or school system, and generally require proof of age, parental permission, school 231. N.J. STAT. ANN. § 34:1a-1.17(c)(1) (2021). 232. Evidence of Worker Exploitation Stops Work at 110 Job Sites, N.J. DEP’T OF LAB. AND WORKFORCE DEV. (July 11, 2023), [https://perma.cc/2TCE-GPYS]. 233. NJDOL Recoups More Than $630,000 in Unpaid Wages for 314 Boston Market Workers, N.J. DEP’T OF LAB. & WORKFORCE DEV. (Sept. 14, 2023), [https://perma.cc/63DA-ZV9A]. 234. See, e.g., N.J. STAT. ANN. § 34:1a-1.17(c)(2) (2021). 235. S. 1158, 193rd Gen. Ct., Reg. Sess. (Mass. 2023). 236. Employment/Age Certificate, supra note 13. 2.GERSTEIN.MAN.FIN (4) (DO NOT DELETE) 7/7/2024 8:03 PM 248 ARKANSAS LAW REVIEW Vol. 77:2 permission, and/or medical clearance, as well as in some instances information about the place, type, and hours they minor will be working.237 A majority of states, plus the District of Columbia and Puerto Rico, require an employment certificate in at least some instances.238 State laws vary in relation to the age below which they are required. Washington requires employers wishing to hire minors to obtain a specific minor work permit endorsement on their business license.239 Employment certificates enable employers, parents, the state, and schools to be aware that a child is working. In many cases, the forms and process serve an important public education role, as they inform employers, teens, and parents about child labor laws and provide contact information for labor authorities. Work permits also protect teenagers’ access to education by making schools aware that minors are working in case a job begins to interfere with school. They also ensure that parents or guardians have given permission for a child to work. Application forms may also require the employer to list the minor’s job title, duties, and/or hours.240 Work permit requirements in some cases can help play a role in preventing violations. The Maine Labor Department in 2023 reported that it had denied about 200 of the 4,700 work permit applications received because they were for a hazardous occupation prohibited for minors.241 Such denial does not ensure that the prohibited work will not occur, but by pressing “pause” on the employment, perhaps makes it less likely. Indeed, researchers at the University of Maryland analyzing federal child labor violation trends have reached preliminary findings showing lower violation rates in states with work permit requirements.242 237. Id. 238. Id. 239. How to Hire Minors, WASH. STATE DEP’T OF LAB. & INDUS., [https://perma.cc/PT66-U3SN] (last visited Mar. 4, 2024). 240. Employment Permit Application for 14- Through 17-Year-Olds, MASS. DEP’T OF LAB. STANDARDS 1, [https://perma.cc/N7KB-TUSH] (last visited Mar. 4, 2024); Minor Work Variance Application for Teen Workers 16-17 Years Old, WASH. STATE DEP’T OF LAB. & INDUST. 1-2, [https://perma.cc/PRY6-HATE] (last visited Mar. 4, 2024); Application to Secure Certificate of Age and Schooling for Employment, OKLA. DEP’T OF LAB. 1 (2022), [https://perma.cc/7UWW-DV9T]. 241. Popp, supra note 2. 242. Interview with Ashish Santosh Kabra, Researcher, Univ. of Md. (Jan. 24, 2024). 2.GERSTEIN.MAN.FIN (4) (DO NOT DELETE) 7/7/2024 8:03 PM 2024 STATE POLICY LEVERS 249 The requirement of employment certificates also helps with enforcement of child labor laws: When minors are working at a job and the employer has not complied with the employment certificate requirement, this can serve as a red flag that other child labor infractions may be occurring. 2. Recommendations States that do not currently have employment certificate or work permit requirements should enact them. States with such requirements should review the process, including the application form and physical permit, to assess whether there are ways to include additional information or update the process to provide more effective education about laws or more likely prevention of violations. For example, perhaps minors could be required to pass an online test about child labor and other workplace laws in order to obtain the employment certificate, much like the process for a driver’s license. Employers could also be required to obtain special minor work permit endorsements on their business licenses, as is the case in Washington, and to complete training on child labor laws as well. K. Require Workers’ Rights Education in Schools Large numbers of workers lack knowledge about their rights at work.243 With less life and work experience, minors are likely even less aware of their workplace rights than adults. Education alone will not stop child labor violations, but the knowledge gap surely exacerbates the problem. If children with jobs, as well as others in the community, are more familiar with workplace rights, this helps prevent violations and increases the possibility that violations will be flagged and reported. In 2023, California enacted a law adding workplace rights education to the curriculum in all public high schools, covering child labor, wage and hour protections, workplace safety, and 243. See NANCY RANKIN & IRENE LEW, EXPANDING WORKERS’ RIGHTS: WHAT IT MEANS FOR NEW YORK CITY’S LOW-INCOME WORKERS 1-2 (2018), [https://perma.cc/8SD2-8C4F]; Claire Cain Miller & Jim Tankersley, Paid Leave Law Tries to Help Millions in Crisis. Many Haven’t Heard of It, N.Y. TIMES (May 8, 2020), [https://perma.cc/M6R4-3L7M]. 2.GERSTEIN.MAN.FIN (4) (DO NOT DELETE) 7/7/2024 8:03 PM 250 ARKANSAS LAW REVIEW Vol. 77:2 more.244 More states should pass similar laws, to help prevent and address child labor violations. Such laws would also help with the broader knowledge gap about workplace rights in general. L. Require Public Disclosure of Child Labor Violations Requiring public disclosure of child labor violations serves the dual purpose of deterring violations because of corporations’ concerns about bad publicity, while also informing consumers about products they wear, eat, and use every day. Common sense suggests that publicizing a corporation’s labor misdeeds would deter violations by similar employers. A recent study confirms this premise, finding that OSHA press releases deterred violations by peer employers (those in the same industry and within a geographical radius).245 Specifically, “publicizing a facility’s violations led other facilities to substantially improve their compliance and experience fewer occupational injuries.”246 Further, “OSHA would need to conduct 210 additional inspections to achieve the same improvement in compliance as achieved with a single press release.”247 While the study focused on workplace safety and health, the deterrent impact is likely similar with child labor, perhaps even greater because of extensive publicity surrounding child labor and accompanying public disapproval. Several state laws facilitate public disclosure of workplace law violations. New Jersey recently passed the Workplace Accountability in Labor List, under which the state labor department publicly posts a list on the agency’s website of certain businesses with outstanding liabilities to the state resulting from wage, benefit, and/or tax law violations; people and entities placed on the list may not contract with any public body until the liabilities are resolved.248 New York’s labor department can post 244. S. 800, 2023 Leg., Reg. Sess. (Cal. 2023). 245. Matthew S. Johnson, Regulation by Shaming: Deterrence Effects of Publicizing Violations of Workplace Safety and Health Laws, 110 AM. ECON. REV. 1866, 1868 (2020). 246. Id. at 1866. 247. Id. 248. N.J. STAT. ANN. § 34:1A-1.16 (2020); Office of Strategic Enforcement and Compliance (OSEC), N.J. DEP’T OF LAB., [https://perma.cc/6U78-EB6P] (last visited Mar. 2.GERSTEIN.MAN.FIN (4) (DO NOT DELETE) 7/7/2024 8:03 PM 2024 STATE POLICY LEVERS 251 a notice for ninety days in an area visible to the general public, informing them of an employer’s willful wage violations.249 Some government labor enforcement agencies maintain publicly accessible databases listing investigations and violations data, including Massachusetts, Texas, and San Diego, as well as OSHA, the Wage and Hour Division, and other sections of the USDOL.250 Legislation could require state agencies to post child labor enforcement data on their websites or issue annual reports. Agencies can also do this on their own without legislation. M. Local Governments Can Also Play a Role in Fighting Child Labor In recent years, localities have been increasingly involved in advancing and enforcing workers’ rights in various ways: passing and enforcing laws; leveraging procurement, licensing, and permitting to drive compliance; conducting education and outreach; and exerting public leadership.251 Such tools can help address child labor. Many opportunities for local action on child labor require collaboration with state or federal agencies. Local government officials, then, should build lines of communication and identify a point of contact with the relevant child labor enforcers in their jurisdiction. Where local labor agencies exist, they can educate the public, and also screen for and refer potential cases. Around two dozen localities have created local offices of labor standards, or the equivalent, that enforce local labor and wage laws, among 4, 2024); NJDOL Sending Warning Letter to Businesses with Unsettled Violations of State Labor Laws, N.J. DEP’T OF LAB. AND WORKFORCE DEV. (Aug. 7, 2023), [https://perma.cc/K6VD-UALC]. 249. N.Y. LAB. LAW § 219-c(2) (2015). 250. Fair Labor Division Data, MASS. OFF. OF THE ATT’Y GEN., [https://perma.cc/7FY5-XMV7] (last visited Mar. 4, 2024); Wage Theft Judgment Dashboard, SAN DIEGO CNTY. OFF. OF LAB. STANDARDS & ENF’T, [https://perma.cc/2E2U-KA3N] (last visited Mar. 4, 2024); Administrative Liens, TEX. WORKFORCE COMM’N, [https://perma.cc/A97R-AQKJ] (last visited Mar. 4, 2024); Enforcement Data, U.S. DEP’T OF LAB., [https://perma.cc/Y2S5-TPNB] (last visited Mar. 19, 2024). 251. See The Role of Local Government in Protecting Workers’ Rights, supra note 97. 2.GERSTEIN.MAN.FIN (4) (DO NOT DELETE) 7/7/2024 8:03 PM 252 ARKANSAS LAW REVIEW Vol. 77:2 other things.252 These agencies generally collaborate extensively with worker, immigrant, and community organizations,253 and can help educate workers and employers about child labor laws. They can also routinely screen for child labor in their investigations and make appropriate referrals to state or federal child labor enforcers. School officials can educate students and families about child labor laws, the work permit process, and age-appropriate employment opportunities. They can also help identify students who may be working in prohibited occupations or during prohibited time periods and refer cases to state or federal child labor enforcers.254 Most importantly, school officials can build lines of communication with labor enforcers so that there is a point person to reach out to if child labor concerns arise. Local health officials and human services providers can help educate the communities they serve about child labor laws and about how to report violations. They can also help identify violations in the course of their work. Again, the need for a point of contact is clear. Local governments can have procurement standards, requiring clear and complete compliance with child labor laws by government contractors and their supply chains. Already-existing statutes requiring general legal compliance by government contractors could be deployed for this purpose, or new laws could specifically require child labor compliance, with contracting consequences for egregious, willful, widespread, repeat, or 252. Id. 253. See Rachel Deutsch & Terri Gerstein, Power in Partnership: How Government Agencies and Community Partners are Joining Forces to Fight Wage Theft, ECON. POL’Y INST. (June 8, 2023), [https://perma.cc/UGS4-E63X]. 254. One limitation on school official action is the federal Family Educational Rights and Privacy Act (“FERPA”), which prohibits teachers or school officials from sharing details about individual students without parental consent. 34 C.F.R. § 99.30-99.31 (2012). However, school officials may share general information with labor law enforcers, such as the names of employers where students not specifically identified are working. See 34 C.F.R. § 99.35 (2012). Also, FERPA defines certain information as “directory information”: information that would not generally be considered harmful or an invasion of privacy if disclosed, such as name, address, phone number, date and place of birth, dates of attendance, and other similar information. 34 C.F.R. § 99.3 (2012). Directory information may be disclosed to third parties, such as labor investigators, if a school has given certain notices to parents beforehand. See 34 C.F.R. § 99.37 (2012). In addition, FERPA permits disclosure of otherwise protected information in response to a subpoena. 34 C.F.R. § 99.31. 2.GERSTEIN.MAN.FIN (4) (DO NOT DELETE) 7/7/2024 8:03 PM 2024 STATE POLICY LEVERS 253 unresolved violations. Even without a statute on point, procurement officials could simply require disclosure of past labor violations, including child labor, as part of the contracting process. Local agencies that issue licenses and permits can require applicants to demonstrate that they have no unresolved record of child labor violations as a condition of receiving or renewing the license or permit. Existing statutes may allow for license or permit denial based on unresolved violations or a history of such violations, or if not, new ordinances could be enacted. Such use of licenses and permits to address workplace law issues is occurring in several jurisdictions. In California, Santa Clara and San Diego Counties have both established programs in which restaurants that owe back wages to the state labor department orders can have their food permits suspended if they fail to remedy such violations.255 A new Boston ordinance requires workplace safety training, preparation, and ongoing monitoring as a condition of receiving a building permit for certain construction projects.256 Training local health, building, and other inspectors on child labor laws can help them spot and refer potential violations. Many city and county inspectors routinely inspect businesses, and they may encounter child labor violations in the course of their work, as occurred with a U.S. Department of Agriculture inspector profiled in a news story about children working in a slaughterhouse.257 Local health, building, and other inspectors cannot be made responsible for addressing child labor; they already perform jobs critical for public health and safety. However, to avoid missed opportunities, they can be provided with information about identifying child labor law violations and most importantly, a labor enforcement point person for referrals or concerns. 255. See Good Faith Restaurant Owners Program, SAN DIEGO CNTY. OFF. OF LAB. STANDARDS & ENF’T, [https://perma.cc/GX66-8X7W] (last visited Mar. 4, 2024); Quan Vu & Benjamin Rada, OLSE Announces Expansion of Wage Theft Enforcement Program, CNTY. OF SANTA CLARA: DIV. OF EQUITY & SOC. JUST. (Aug. 23, 2022, 12:00 PM), [https://perma.cc/7X45-KLLV]. 256. BOS., MASS., ORDINANCES ch. 16 § 16-64 (2023). 257. See The Kids on the Night Shift, supra note 34. 2.GERSTEIN.MAN.FIN (4) (DO NOT DELETE) 7/7/2024 8:03 PM 254 ARKANSAS LAW REVIEW Vol. 77:2 All local government officials can exercise public leadership to help educate the public about child labor laws, as well as about violators in their jurisdiction. Elected officials in immigrant-dense communities can be aware of the potential for exploitation of migrant children and develop relationships with the relevant labor enforcement agencies. Local leaders can also advocate for stronger state child labor laws and against proposed rollbacks. VI. EXISTING STATE AND FEDERAL BILLS In 2023, several federal bills were introduced in Congress to address the growing child labor crisis. They range from modest to more comprehensive. Three are bipartisan, suggesting potential for positive action on this issue. The Children Harmed in Life-threatening or Dangerous (CHILD) Labor Act is a comprehensive bill, not yet bipartisan, that would create lead corporation liability for violations by contractors and subcontractors, increase civil monetary penalties, establish monetary damages for victims, require federal contracts to explicitly prohibit use of illegal child labor, and grant the federal labor department stop-work-order authority as well as power to affix warning labels to goods manufactured with oppressive child labor. It also contains annual reporting requirements.258 The bipartisan Preventing Child Labor Exploitation Act would prohibit federal agencies from contracting with companies that have violated federal child labor laws or that employ vendors that have failed to address child labor infractions.259 Corporations seeking federal contracts would be required to disclose the preceding three years of child labor and worker safety violations by the company itself as well as by their contractors, with stiff penalties for failure to report.260 The Labor Secretary would determine corrective measures for a company and/or their contractors to remain eligible for contracts, and would also create an annual list of companies ineligible for federal contracts based 258. Children Harmed in Life-threatening or Dangerous Labor Act, S. 3163, 118th Cong. (2023). 259. Preventing Child Labor Exploitation Act, S. 3139, 118th Cong. (2023). 260. Id. 2.GERSTEIN.MAN.FIN (4) (DO NOT DELETE) 7/7/2024 8:03 PM 2024 STATE POLICY LEVERS 255 on serious, repeated, or pervasive child labor violations.261 The bill also calls for a federal study on the prevalence and nature of child labor among federal contractors.262 The Child Labor Accountability Act of 2023, also bipartisan, would expand the time period for triggering the federal “hot goods” provision in a child labor investigation, from the current thirty days to ninety days (consistent with the time period for minimum wage violations).263 It would also require the USDOL to report annually to Congress on its child labor work.264 Finally, the bipartisan Stop Child Labor Act would increase maximum penalties for violations, establish new criminal penalties, allow victims to file private lawsuits for damages, create a national child labor advisory committee, and a grant program to help employers avoid violations.265 A number of state bills have been proposed, and several have passed, to strengthen child labor laws.266 For example, a bill to increase child labor penalties and to set a minimum penalty amount was unanimously approved by a bipartisan subcommittee in Virginia’s House of Delegates in January of 2024.267 Most focus to date has been on increasing penalty amounts for violations. As discussed above, this measure is important, yet alone will be insufficient to meaningfully deter and address child labor violations.268 A more effective proposal would include a package of laws drawing upon a range of approaches that, combined, are likely to change employer practices and stop child labor violations. The existence of multiple bipartisan federal proposals gives reason for optimism, as they suggest potential for bipartisan state action as well. 261. Id. 262. Id. 263. Child Labor Accountability Act, S. 3142, 118th Cong. (2023); Padilla Introduces Bipartisan Bill to Combat Child Labor Exploitation, ALEX PADILLA (Oct. 26, 2023), [https://perma.cc/JB9F-8MHY]. 264. Child Labor Accountability Act, S. 3142, 118th Cong. (2023). 265. Stop Child Labor Act, S. 3051, 118th Cong. (2023). 266. Nina Mast, As Some States Attack Child Labor Protections, Other States Are Strengthening Standards, ECON. POL’Y INST. (Nov. 7, 2023), [https://perma.cc/BL7E-5GBZ]. 267. H.B. 100, 2024 Gen. Assemb., Reg. Sess. (Va. 2024) (amending VA. CODE ANN. § 40.1-133). 268. See infra Section V.B. 2.GERSTEIN.MAN.FIN (4) (DO NOT DELETE) 7/7/2024 8:03 PM 256 ARKANSAS LAW REVIEW Vol. 77:2 VII. CONCLUSION The policy options outlined in this Article are generally not ground-breaking. All have precedents of some kind within existing state and federal laws and are therefore not infeasible. That said, there is no single proposal that will fully address this complex and multi-faceted problem; a package of policies is needed. Overall, the highlighted policy options will help deter child labor violations and address them when they do occur. But passage of such laws in relation only to child labor will not remedy the broader landscape in which large-scale and egregious child labor violations have surged. Children are of course far more vulnerable than adults in the workplace (and pretty much everywhere else). But young people do not stop being vulnerable to exploitation on their eighteenth birthday, and the workplace rights of middle-aged and older people matter too. The United States needs far more workplace protections for all workers. Nearly all of the above laws and policies could be adopted not only in relation to child labor, but also in relation to wage theft, workplace safety, or other basic labor standards. Stop work orders, more readily attainable up-chain liability for lead corporations, whistleblower causes of action, procurement consequences, workers’ rights education: all of these can and should be implemented in relation to worker protections generally. Their adoption in relation to child labor would not only help bring dangerous exploitation of children to a halt but could also demonstrate proof of concept regarding additional vehicles for safeguarding workers’ rights generally. Amidst the sordid re-emergence of child labor in the United States in the twenty-first century, we can only hope that one lasting result might be a stronger web of worker protections and enforcement mechanisms for all workers. 3.CAHN.MAN.FIN (2) (DO NOT DELETE) 7/7/2024 8:07 PM CHILDREN AT WORK, PARENTAL RIGHTS—AND RHETORIC Naomi Cahn∗ Maxine Eichner∗∗ Mary Ziegler∗∗∗ INTRODUCTION States are increasingly considering and enacting laws that reduce protections for child laborers, and the number of minors who have been employed in violation of existing child labor laws has been steadily growing.1 This rollback is occurring at a time of growing socioeconomic inequality in which child labor violations—for which migrant children are at particular risk—have increased significantly.2 Despite the erosion of protections for child labor, strong reasons grounded in children’s future economic wellbeing still support continued restrictions. This Article focuses on one rationale used in a number of states to ∗ Justice Anthony M. Kennedy Distinguished Professor of Law, Nancy L. Buc ‘69 Research Professor in Democracy and Equity University of Virginia School of Law. Thanks to Annie Smith for her support, to Siarra Kaur Deol and Claudia Frykberg for research assistance, and to other participants in the 2023 Arkansas Law Review Symposium, Children at Work. ∗∗ Graham Kenan Distinguished Professor of Law, University of North Carolina School of Law. ∗∗∗ Martin Luther King Jr. Professor of Law, UC Davis School of Law. 1. Child Labor, U.S. DEP’T OF LAB., [https://perma.cc/C37H-U4TN] (last visited Feb. 11, 2024) (listing number of children hired in violation of child labor laws, fines assessed, and other information from 2013-2023); see also Terri Gerstein, Policies for States & Localities to Fight to Fight Oppressive Labor Practices, ECON. POL’Y INST. (Feb. 27, 2024); Jennifer Sherer & Nina Mast, Child Labor Laws Are Under Attack in States Across the Country, ECON. POLICY INST. (Dec. 21, 2023), [https://perma.cc/Q84A-7S8J]; Jennifer Sherer & Nina Mast, Iowa Governor Signs One of the Most Dangerous Rollbacks of Child Labor Laws in the Country, ECON. POL’Y INST. (June 23, 2023), [https://perma.cc/5BUM-GTU4]. 2. See Hannah Dreier, Labor Department Denounces Surge in Exploited Migrant Children, N.Y. TIMES (July 27, 2023), [https://perma.cc/L52E-EYXV] (noting the increasing problems with child labor violations, especially with migrant children); Gerstein, supra note 1. 3.CAHN.MAN.FIN (2) (DO NOT DELETE) 7/7/2024 8:07 PM 258 ARKANSAS LAW REVIEW Vol. 77:2 justify the reduction of children’s labor protections: parental rights. We argue that politicians deploy the rhetoric of parental rights in today’s legislative battles over child labor protections to create political cover for reforms that benefit businesses, not children or their families. Arguments rooted in parental rights give legislators a morally plausible and politically popular rationale to roll back such protections. Such claims of parental rights have served the same purpose in other politically-controversial areas, ranging from challenges to allowing students to use their preferred names at school without disclosure to requiring parental consent for social media.3 Indeed, as we show in other work, there are deep inconsistencies in the ways that legislators mobilize the idea of protecting parental rights: When it comes to gender-affirming care, for example, some states override parental rights willingly.4 In justifying the rollback of labor restrictions on children and in other contexts, however, many of these same states use parental-rights rhetoric—thereby co-opting the underlying, constitutionally-respected concept to serve other ends.5 At the same time, this rhetoric obscures the more troubling interests and motivations truly driving these decreased protections for children and diverts attention from the likely harm this deregulation will cause. Part I demonstrates that appeals to parental rights have a long history in child labor law. Through much of the battle to regulate children’s labor, child-labor opponents insisted that regulations infringed parents’ legitimate rights over the care, custody, and control of their children. Nevertheless, over time, it became clear 3. See Mary Ziegler, Maxine Eichner & Naomi Cahn, The New Law and Politics of Parental Rights, 123 MICH. L. REV. (forthcoming 2024) (manuscript at 34-46); Andrew DeMillo, Arkansas Governor Signs Bill Requiring Parental Permission for Social Media, PBS (Apr. 12, 2023, 8:53 PM), [https://perma.cc/S4QU-VXZ6] (noting that Arkansas—one of the states that has rolled back child labor provisions—also has new legislation requiring that minors obtain parental permission before creating new social media accounts). 4. See, e.g., L.W. ex rel. Williams v. Skrmetti, 73 F.4th 408, 413-19 (6th Cir. 2023). 5. State officials also make a related claim: that decreasing protections is valuable for children, providing them opportunities to work and develop appropriate values. See John Fliter & Betsy Wood, Why Are States Turning Back the Clock on Child Labor Laws?, ALASKA BEACON (June 28, 2023, 5:47 PM), [https://perma.cc/X8HE-GAXL] (explaining the changes Iowa Governor Kim Reynolds lauded a new child labor law that would allow youths to further their skills). 3.CAHN.MAN.FIN (2) (DO NOT DELETE) 7/7/2024 8:07 PM 2024 CHILDREN AT WORK 259 that children’s wellbeing was best served by a combination of state and federal labor protections that restricted children’s work hours and conditions. Supreme Court case law in the middle of the twentieth century resolved the push and pull over decision-making regarding children’s labor.6 The result forged a balance between parents’ discretion and government’s rights that served to protect children’s best interests, a balance that largely remained in place until now.7 Part II turns to the recent attacks on child labor protections in the name of parental rights. This Part considers the political benefits to legislators in framing efforts to roll back labor protections in the name of parental rights, as well as how this rhetoric hides a range of less politically popular forces driving this rollback.8 It then demonstrates that elimination of existing labor protections for children risks both their current wellbeing and their future prospects. Doing so, we argue, withdraws the state from the critical role it has long played—and should continue to play—in protecting children from market forces. Part III concludes by considering ways to counter the new rhetoric of parental rights and its impact on child labor laws. I. REGULATING CHILDREN’S LABOR: BALANCING THE “TRIAD” OF INTERESTS When it comes to decisions regarding children’s labor, American law has long recognized the dual authority of both parents and government. The principle that parents have rights to 6. See United States v. Darby, 312 U.S. 100, 115-17 (1941) (noting that the federal government has every right to regulate goods in interstate commerce that are created in substandard working conditions, just as states have every right to regulate intrastate commerce). 7. See, e.g., Prince v. Massachusetts, 321 U.S. 158, 169-71 (1944) (upholding Massachusetts child labor protection against claim based on infringement of parental rights). Scholars have also sought to balance these competing interests. To be sure, there have been prior efforts to change child labor laws, both relaxing and strengthening them. For a discussion of federal efforts, see CONG. RESEARCH SERV., RL31501, CHILD LABOR IN AMERICA: HISTORY, POLICY, AND LEGISLATIVE ISSUES (2013); Henry Gass, Get a Job: After 100 years, States Loosen Child Labor Laws, THE CHRISTIAN SCI. MONITOR (June 6, 2023), [https://perma.cc/D6D5-6WZD] (“For the first time in history, the United States is engaged in a nationwide discussion over relaxing rules around children’s work.”). 8. We have labelled this strategy “retrenchment by diversion.” Ziegler, Eichner & Cahn, supra note 3. 3.CAHN.MAN.FIN (2) (DO NOT DELETE) 7/7/2024 8:07 PM 260 ARKANSAS LAW REVIEW Vol. 77:2 make decisions for their children was recognized even before the nation’s founding, although it was not embodied in the nation’s constitutional jurisprudence until more than a century later.9 Under the common law adopted in the United States, parents (originally, fathers) were entitled to the care, custody, and control of their children.10 That parental prerogative included the right to receive their children’s earning.11 Parents could also indenture their children to learn a trade.12 This Section first surveys the history of child labor regulation before turning to contemporary federal law. A. The History of Regulation Parental prerogatives long existed in some tension with governmental responsibility for children. Even before independence, American colonies enacted versions of Elizabethan poor laws that implemented principles of parens patriae, which conceptualized the state as responsible for protecting children’s welfare.13 In that capacity, as the United States industrialized early in the nineteenth century, states began to conceptualize their role in terms of protecting children from the harshest effects of industrial labor. In 1813, Connecticut enacted legislation requiring that children who worked in factories be 9. Meyer v. Nebraska, 262 U.S. 390, 402-03 (1923); Pierce v. Soc’y of Sisters, 268 U.S. 510, 534-36 (1925). These cases addressed parents’ rights in dicta. On the rights of parents before the nation’s founding, see Brief of William Eskridge, et al. as Amici Curiae Supporting Appellees, Brandt v. Griffin, No. 4:21-CV-00450 JM (8th Cir. 2023). 10. See Harry L. Tindall & Elizabeth H. Edwards, The Evolution of the Legal Ramifications of Parentage: An Overview, AM. BAR ASS’N (Apr. 1, 2018), [https://perma.cc/U78K-QLEZ]. 11. Michael Schuman, History of Child Labor in the United States—Part 1: Little Children Working, U.S. BUREAU OF LAB. STAT. (Jan. 2017), [https://perma.cc/5CDH-YCZR]; 1 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 453 (1893); see generally VIVIANA A. ZELIZER, PRICING THE PRICELESS CHILD: THE CHANGING SOCIAL VALUE OF CHILDREN 58-60 (1994). 12. See Linda Gordon, Child Welfare: A Brief History, VCU LIBRS. SOC. WELFARE HIST. PROJECT, [https://perma.cc/TA62-Z5P5] (last visited Feb. 22, 2024); Meredith Johnson Harbach, Parens Patriae After the Pandemic, 101 N.C. L. REV. 1427, 1431-32, 1462 (2023) (discussing child welfare concepts). 13. Brief of Historians of Child Welfare as Amici Curiae Supporting Respondents at 4, Fulton v. City of Philadelphia, 593 U.S. 522 (2021) (No. 19-123), 2020 WL 5044729 at *4. 3.CAHN.MAN.FIN (2) (DO NOT DELETE) 7/7/2024 8:07 PM 2024 CHILDREN AT WORK 261 educated in reading, writing, and arithmetic.14 Over objections that such laws violated parents’ rights, by mid-century, more states passed similar laws.15 Such laws often still ensured parents significant control: In many, parental consent permitted children to work at younger ages and for longer time periods, and the statutes exempted those who helped to support disabled parents.16 The movement for regulation and child protection began to gather momentum during the Progressive Era, as industrialization proceeded at full force.17 Although regulation achieved some limited success at the state level, by 1900, almost two million children—one of every six between ten and fifteen-years-old—was employed.18 Their labor was driven by growing income inequality. As in our own era, the concentration of wealth held by the rich increased radically. In 1890, the top 12% of families held 86% of the wealth.19 The families of unskilled workers fell well behind the rest, earning much less than was needed to support a family.20 Wives’ labor inside and outside the home was 14. Michael Schuman, History of Child Labor in the United States—Part 2: The Reform Movement, U.S. BUREAU OF LAB. STAT. (Jan. 2017), [https://perma.cc/4S7L-YXZG]; see also WALTER I. TRATTNER, CRUSADE FOR THE CHILDREN 28–29 (1970).5 15. Schuman, supra note 14; see also Julie Novkov, Historicizing the Figure of the Child in Legal Discourse: The Battle over the Regulation of Child Labor, 44 AM. J. LEGAL HIST. 369, 371 (2000) (noting the efforts of progressive reformers to gain heightened regulation of child labor); Clare Huntington & Elizabeth S. Scott, Conceptualizing Legal Childhood in the Twenty-First Century, 118 MICH. L. REV. 1371, 1381 (2020) (noting that the development of juvenile courts as a result of progressive reformers). 16. 14TRATTNER, supra note 14, at 31. 17. See J. Hansen, The American Era of Child Labor, VCU LIBRS. SOC. WELFARE HIST. PROJECT (2011), [https://perma.cc/KM24-3URR]. 18. Dina Mishra, Child Labor as Involuntary Servitude: The Failure of Congress to Legislate Against Child Labor Pursuant to the Thirteenth Amendment in the Early Twentieth Century, 63 RUTGERS L. REV. 59, 61 (2010). Immigrant children were particularly likely to be working, a situation that also has not changed. Indeed, “a lot of the kids we see working in exploitative situations tend to be from immigrant families.” Kaitlyn Radde, Child Labor Violations Are on the Rise as Some States Look to Loosen Their Rules, NPR (Feb. 26, 2023, 7:05 AM), [https://perma.cc/FSQ6-U7A8]; see also Lauren Magarino, States Ease Teen Employment Laws Amid Rising Child Labor Violations, SCRIPPS NEWS (Sept. 16, 2023, 5:39 PM), [https://perma.cc/V7KU-CKUX]. 19. WALTER LICHT, INDUSTRIALIZING AMERICA: THE NINETEENTH CENTURY 183 (1995). 20. Jeremy Atack, Fred Bateman & Robert A. Margo, Skill Intensity and Rising Wage Dispersion in Nineteenth-Century American Manufacturing, 64 J. ECON. HIST. 172, 188-89 (2004); MICHAEL B. KATZ, POVERTY AND POLICY IN AMERICAN HISTORY 10-11 (1983). 3.CAHN.MAN.FIN (2) (DO NOT DELETE) 7/7/2024 8:07 PM 262 ARKANSAS LAW REVIEW Vol. 77:2 not sufficient to make up this shortfall.21 The result is that older children were sent out to work for wages.22 One study of Philadelphia industrial workers in 1860 found that three-quarters of those in the lowest-paid group relied on the wages of their children.23 In a largely agrarian colonial America, parents expected children to assist with the work that defined subsistence agriculture and settlement, including farming, clearing land, and building settlements.24 Yet these children often worked within broader family networks and were being socialized and taught skills they would need in their adult lives.25 (At least for free, white children. For Black children who were enslaved, neither socialization nor skills were the sought-after or expected result of the labor they were forced to perform.)26 As industrialization took hold, the many children who worked in factories and mills at the end of the nineteenth century were being denied the schooling they needed to gain decent-paying positions when they became adults. They also worked long hours in filthy, extremely loud, and dangerous conditions.27 The great number of children who worked in cotton mills in the South, for example, generally began at age twelve (or earlier) and labored eleven to twelve hours a day, five-and-a-half days a week, including many night shifts.28 21. Michael Haines, Poverty, Economic Stress, and the Family in a Late Nineteenth Century American City: Whites in Philadelphia, 1880, in PHILADELPHIA: WORK, SPACE, FAMILY, AND GROUP EXPERIENCE IN THE NINETEENTH CENTURY 260 (Theodore Hershberg ed., 1981); STUART M. BLUMIN, THE EMERGENCE OF THE MIDDLE CLASS 188 (1989); Mary H. Blewett, Work, Gender and the Artisan Tradition in New England Shoemaking, 1780-1860, 17 J. SOC. HISTORY 221, 224-25 (1983); CHRISTINE STANSELL, CITY OF WOMEN 12-13, 111 (1987); JEANNE BOYDSTON, HOME AND WORK: HOUSEWORK, WAGES, AND THE IDEOLOGY OF LABOR IN THE EARLY REPUBLIC 27 (1990). 22. LICHT, supra note 19, at 184; STANSELL, supra note 21, at 50-53. 23. Haines, supra note 21, at 260, tbl. 6; LICHT, supra note 19, at 184. 24. TRATTNER, supra note 14, at 36. 25. We do not mean to minimize the difficult conditions under which many children worked. 26. See, e.g., Catherine E. Smith, Brown’s Children’s Rights Jurisprudence and How It Was Lost, 102 B.U. L. REV. 2297, 2320 (2022) (“In southern states, enslavers were especially vigilant about depriving enslaved children of the opportunity to read and write because it would threaten the racial caste order.”). 27. TRATTNER, supra note 14, at 81; Robert A. Margo, The Labor Force in the Nineteenth Century, in THE CAMBRIDGE ECONOMIC HISTORY OF THE UNITED STATES, VOL. II: THE LONG NINETEENTH CENTURY 212, 216 (Stanley L. Engerman & Robert E. Gallman eds., 2000). 28. TRATTNER, supra note 14, at 81. 3.CAHN.MAN.FIN (2) (DO NOT DELETE) 7/7/2024 8:07 PM 2024 CHILDREN AT WORK 263 Because heat and moisture prevented the cotton from breaking, windows were kept closed and the air moist—even in extreme heat. As a result, the air was filled with dust and lint, which seeped into workers’ lungs, causing bronchitis and other respiratory diseases.29 Boys who worked in the mills had half the chance as other boys of living until age twenty; girls had even lower odds.30 The tens of thousands of children who worked in coal mining, some as young as ten or eleven, still had it worse.31 They worked underground for ten to eleven hours per shift, performing repetitive work in air laden with coal dust; often with only the light from their work helmets.32 Conditions were hazardous, and children were injured at roughly three times the rate of adult mineworkers.33 Those who avoided accidents often still became anemic, disabled, or underdeveloped, and possessed extremely limited vocabularies and cognitive skills. Describing this situation, an 1869 New York Times editorial warned readers that “a great multitude of the youth . . . are thus growing up, stunted in body, and with not even the rudiments of school training, a prey to the insatiable requirements of industry and capital.”34 Some states enacted legislation, but enforcement was inconsistent.35 In response to the failure of state regulation to rein in these situations, reformers began to organize nationally. In 1904, the National Child Labor Committee was formed, “usher[ing] in the national movement against child labor,” and proclaiming that child labor was “America’s ‘new slavery.’”36 The organization soon became so prominent that, a year after its 29. Id. 30. Id. 31. Id. at 71. 32. Id. at 72. 33. TRATTNER, supra note 14, at 72. 34. Over-Work of Children in Our Factories, N.Y. TIMES, Oct. 6, 1869, at 4. 35. See, e.g., Graham Taylor, Parental Responsibility for Child Labor, 27 ANNALS AM. ACAD. POL. & SOC. SCI. 354, 97 (1906) (discussing the pressure on immigrant parents to send their children to work and applauding the success of Illinois’s child labor enforcement through more than a thousand actions “in striking contrast with the score or more convictions reported from some other large industrial States”). 36. BETSY WOOD, UPON THE ALTAR OF WORK: CHILD LABOR AND THE RISE OF A NEW AMERICAN SECTIONALISM 71 (2020); see also Seymour Moskowitz, Dickens Redux: How American Child Labor Law Became a Con Game, 10 WHITTIER J. CHILD & FAM. ADVOC. 89, 102 (2010). 3.CAHN.MAN.FIN (2) (DO NOT DELETE) 7/7/2024 8:07 PM 264 ARKANSAS LAW REVIEW Vol. 77:2 formation, its leaders met with President Teddy Roosevelt, who became an honorary member.37 During the next decade, the National Child Labor Committee and its allies pushed for enactment of federal child labor legislation. The first piece of federal legislation passed was the Keating-Owen Act of 1916.38 That Act, though, was struck down as unconstitutional by the Supreme Court in Hammer v. Dagenhart on the grounds that it exceeded Congress’s power to regulate interstate commerce.39 While the plaintiffs in Hammer included a father suing in his own name,40 the case was decided before the recognition of parental rights in Meyer v. Nebraska, and neither the majority nor the four dissenters addressed parental rights to control the upbringing of their children.41 Soon after, in 1919, Congress enacted legislation under its taxing power, the Child Labor Tax Law, which was also invalidated by the Supreme Court, again without mention of parental rights.42 Despite the absence of parental rights discussions in Supreme Court jurisprudence, the rhetoric of parental rights was used to mobilize opposition to child labor regulation in this era. When Congress proposed a Child Labor Amendment to the Constitution in the mid-1920s, designed to neutralize the Supreme Court’s striking down child labor legislation, opponents 37. WOOD, supra note 36, at 78. 38. TRATTNER, supra note 14, at 87-90, 130-131. 39. Hammer v. Dagenhart, 247 U.S. 251, 276-77 (1918). The legislation prohibited products “which within thirty days before the removal of the product children under fourteen have been employed,” and also regulated the hours of work for children between the ages of fourteen to sixteen. Id. at 277 (Holmes, J., dissenting). 40. The father also brought suit on behalf of his fourteen-year-old son and another son, two years younger, both of whom worked in North Carolina cotton mills. Id. at 268. Pursuant to state law, both boys could work up to eleven hours each day, but the Keating-Owen Act prevented the younger son from working altogether, while his other brother could work eight hours per day. See Elizabeth Huey Davidson, Child-Labor Reforms in North Carolina Since 1903, 14 N.C. HISTORICAL REV. 109, 109 (1937); Keating-Owen Act of 1916, Pub. L. No. 249, 39 Stat. 675 (1916). The children’s income was likely important to the family’s sustenance. 41. See id. at 268 (The word “father” is mentioned once, in describing the plaintiff, and the word “parent” does not appear at all.); Meyer v. Nebraska, 262 U.S. 390 (1923). 42. Child Labor Tax Case, 259 U.S. 20, 20-21, 44 (1922). The Court did acknowledge that restricting child labor was of the “highest good.” Id. at 37. 3.CAHN.MAN.FIN (2) (DO NOT DELETE) 7/7/2024 8:07 PM 2024 CHILDREN AT WORK 265 used parental rights justifications to defeat its passage by states.43 They presented the proposed amendment as an effort to undercut the rights of parents who “did not embrace the modern secular order.”44 The American Farm Bureau Federation, which testified in opposition to the Amendment, distributed a brochure, National Child Labor Law or Socialistic Bureaucratic Control Supplanting Parental Control of Children, Plain Politics for Parents.45 In rejecting the Amendment, the Georgia legislature stated its concern that it “would destroy parental authority and responsibility throughout America.”46 While proponents tried to reassure farmers that their children could still perform chores and help with the dishes, they were unsuccessful.47 Almost two decades later, Congress passed the Fair Labor Standards Act of 1938 (“FLSA”) which contained a broad series of labor regulations, based on its authority to regulate interstate commerce.48 The law included special protections for workers under age eighteen and barred interstate commerce in goods in which “oppressive child labor has been employed.”49 Children younger than sixteen years of age who work in a family business are excepted from these regulations.50 In introductory remarks, President Franklin D. Roosevelt referred to the need to protect 43. TRATTNER, supra note 14, at 167-78, 199-202; see also David A. Strauss, The Irrelevance of Constitutional Amendments, 114 HARV. L. REV. 1457, 1476, 1505 (2001); WOOD, supra note 36, at 124, 127, 134, 140. 44. WOOD, supra note 36, at 127. 45. TRATTNER, supra note 14, at 174. It was also distributed by the American Constitutional League. Laura A. Thompson, Woman and Child Labor, MONTHLY LAB. REV., Jan. 1925, at 71, 98. 46. Edward F. Waite, The Child Labor Amendment, 9 MINN. L. REV. 179, 205 (1925). 47. Bart Dredge, David Clark’s “Campaign of Enlightenment”: Child Labor and the Farmers’ States Rights League, 1911-1940, 91 N.C. HIST. REV. 30, 49-50 (2014); Waite, supra note 46, at 195. 48. 29 U.S.C. § 212(a) (1974). The current language of the statute is little changed from the original. Compare 29 U.S.C. § 212(a), with Fair Labor Standards Act of 1938, Pub. L. No. 75-178, § 12, 52 Stat. 1060, 1067 (1938); see also Jeremy P. Felt, The Child Labor Provisions of the Fair Labor Standards Act, 11 LAB. HIST. 467, 474-75 (1970). For an almost contemporaneous description of the FLSA child labor provisions, see Katherine De Pre Lumpkin, The Child Labor Provisions of the Fair Labor Standards Act, 6 L. & CONTEMP. PROBS. 391, 392-93 (1939). 49. Fair Labor Standards Act of 1938, Pub. L. No. 75-178, § 12, 52 Stat. 1060, 1067-68 (1938). 50. See 29 U.S.C. § 213(c)(1)(B) (2018); 29 U.S.C. § 203(1) (2018) (excluding children employed by a parent in most nonhazardous occupations). 3.CAHN.MAN.FIN (2) (DO NOT DELETE) 7/7/2024 8:07 PM 266 ARKANSAS LAW REVIEW Vol. 77:2 those who could not protect themselves, without a reference to parental rights.51 The child labor provisions were upheld in Darby in 1941, which again, was decided as a straightforward application of the Commerce Clause to Congressional power.52 It did not explicitly discuss Congress’s ability to regulate child labor. It was not until eight years later, in 1944, that the Supreme Court directly addressed the conflicts between the government’s power to regulate child labor and parental rights in the case of Prince v. Massachusetts.53 In that case, an aunt, who was custodian of her nine-year-old niece, contested her conviction for violating a state statute prohibiting girls under eighteen from selling periodicals in the street.54 The family in question were Jehovah’s Witnesses, and asserted that they had been distributing copies of the order’s publications as part of their calling to preach the gospel.55 In resolving the claim, the Court noted the weighty interests on both sides of the equation. On the one hand were the parent’s “sacred private interests, basic in a democracy” in the “control of the child and his training”—interests that were “serious enough when only secular matters are concerned. [They] become[] the more so when an element of religious conviction enters.”56 On the other hand, stand the interests of society to protect the welfare of children, and the state’s assertion of authority to that end . . . . The last is no mere corporate concern of official authority. It is the interest of youth itself, and of the whole community, that children be both safeguarded from abuses 51. 82 CONG. REC. 3-6, (1937) (message from President Roosevelt stating the need to “[b]anish child labor and protect workers unable to protect themselves from excessively low wages and excessively long hours”). A search of the pdf for the term “parental rights” yielded nothing, nor did a search for “parent.” See Marina A. Masterson, When Play Becomes Work: Child Labor Laws in the Era of “Kidfluencers”, 169 U. PA. L. REV. 577, 607 (2021). 52. United States v. Darby, 312 U.S. 100, 109-10, 115-16 (1941). The Court had issued decisions in 1936 and 1937 concerning Congressional power over labor regulation. Barbara Bennett Woodhouse, “Who Owns the Child?”: Meyer and Pierce and the Child as Property, 33 WM. & MARY L. REV. 995, 1108 (1992). 53. Prince v. Massachusetts, 321 U.S. 158, 166 (1944). 54. Id. at 159-61. 55. Id. at 159, 162. 56. Id. at 165. 3.CAHN.MAN.FIN (2) (DO NOT DELETE) 7/7/2024 8:07 PM 2024 CHILDREN AT WORK 267 and given opportunities for growth into free and independent well-developed men and citizens.57 Despite the Court’s reaffirmation of precedents holding that “[i]t is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder,” it upheld the aunt’s conviction.58 The statute’s application to adults, the Court noted, would overstep legitimate religious liberties.59 Yet the state’s parens patriae power, the Court stated, gave it broader authority over children, particularly with respect to “matters of employment.”60 This was the case despite “the presence of the child’s guardian,” who disagreed with the state’s assertion of power.61 It justified its determination on the ground that “[a] democratic society rests, for its continuance, upon the healthy, well-rounded growth of young people into full maturity as citizens, with all that implies.”62 It was therefore within the state’s legitimate powers to secure young people from dangers that would prevent such growth: “Among evils most appropriate for such action are the crippling effects of child employment.”63 The majority’s opinion therefore set the basis for further use of the state’s authority to protect children, even if that required overriding parental rights.64 Justice Murphy, in dissent, took a more nuanced view, distinguishing the First Amendment freedom of religion at stake in the case from the “harms” that might result from child employment; even then, however, he recognized that the family could be regulated “in the public interest.”65 In the majority opinion, the Court sought to strike a balance between its respect for parents’ rights to make important decisions regarding their children—an interest grounded in 57. Id. 58. Prince, 321 U.S. at 166. 59. Id. 60. Id. at 168. 61. Id. at 169. 62. Id. at 168. 63. Prince, 321 U.S. at 168. 64. This was also the justification used in Skrmetti, a Sixth Circuit decision upholding gender-affirming care bans enacted in Tennessee and Kentucky. See generally L.W. ex rel. Williams v. Skrmetti, 73 F.4th 408 (6th Cir. 2023). 65. Prince, 321 U.S. at 173-75 (Murphy, J., dissenting). 3.CAHN.MAN.FIN (2) (DO NOT DELETE) 7/7/2024 8:07 PM 268 ARKANSAS LAW REVIEW Vol. 77:2 respect for parental autonomy—and the state’s legitimate interests in ensuring the well-being of children.66 That balance, since 1938, has supported reasonable restrictions on child labor while giving parents more authority when children are working for family businesses. This balance also carves out special permission for parents to allow their children to work in limited circumstances. B. Current Status of Labor Protections Child labor law today involves a combination of federal, state, and local regulations. The prohibitions vary, depending on whether the work is agricultural or hazardous, whether it involves acting, and whether parents or nonparents are the employer.67 The limitations vary by the age of the child.68 The laws also limit the number of total hours a child can work, as well as the number of hours that can be worked on school days.69 Moreover, while 66. See generally Prince, 321 U.S. at 158-71. 67. 29 U.S.C. § 203(l) (2018) (defining “oppressive child labor”); 29 C.F.R. § 570.123(c) (2023); 29 C.F.R. § 570.126 (2023) (setting out parental exemptions); see, e.g., Erin E. O’Neill, Influencing the Future: Compensating Children in the Age of Social-Media Influencer Marketing, 72 STAN. L. REV. ONLINE 42, 46 (2019) (“actors and performers—including child actors and performers—are also exempt from federal child labor law regardless of their employers”); Marina A. Masterson, When Play Becomes Work: Child Labor Laws in the Era of “Kidfluencers”, 169 U. PA. L. REV. 577, 587 (2021). As these two articles show, there has been increasing attention to children working in media. See, e.g., Ana Saragoza, The Kids Are Alright? The Need for Kidfluencer Protections, 28 AM. U. J. GENDER SOC. POL’Y & L. 575, 578 (2020) (asserting that “child labor laws need to evolve to enhance protections for the earnings that children generate”); Melanie N. Fineman, Honey, I Monetized the Kids: Commercial Sharenting and Protecting the Rights of Consumers and the Internet’s Child Stars, 111 GEO. L.J. 847, 890 (2023) (arguing for additional protections). 68. Fact Sheet #40: Overview of Youth Employment (Child Labor) Provisions of the Fair Labor Standards Act (FLSA) for Agricultural Occupations, U.S. DEP’T OF LAB. (Dec. 2016), [https://perma.cc/7AY3-537L]; U.S. DEP’T OF LABOR WAGE & HOUR DIV., CHILD LABOR BULLETIN 102, at 3 (2016) [hereinafter CHILD LABOR BULLETIN 102], [https://perma.cc/PR6L-8S6H]. Even where the parents do not own or operate the farm, a child under the age of fourteen can be employed on farms with parental consent or where the parent is also employed. Id. 69. E.g., Non-Agricultural Jobs—14-15, U.S. DEP’T OF LABOR [https://perma.cc/Y5P5-PMHK] (last visited Feb. 21, 2024) (setting out hours, jobs, and pay limitations); Non-Agricultural Jobs—16-17, U.S. DEP’T OF LAB. [https://perma.cc/WN45-TD7C] (last visited Feb. 21, 2024) (allowing for unlimited hours of work in any job that has not been declared hazardous). Workers under twenty years old can be paid less than the minimum wage for the first ninety days of employment. See id. 3.CAHN.MAN.FIN (2) (DO NOT DELETE) 7/7/2024 8:07 PM 2024 CHILDREN AT WORK 269 the reach of the FLSA is broad, it does not cover all enterprises or types of work.70 Under federal law, those younger than eighteen are prohibited from holding sixteen types of non-agricultural jobs that involve power saws, meat-slicers, or other machines, as well as most mining jobs.71 Fourteen to fifteen-year-old children cannot work after 7:00 PM during the school year.72 Those under fourteen are permitted to work only in a few non-agricultural jobs, including babysitting, working as a performer, or working in a business owned by the minors’ parents.73 Federal law does not require that minors obtain work permits or that employers establish special breaks or meal periods, although state laws may contain more restrictions.74 Moreover, because of the historical resonance of the family farm, children can work at a younger age on farms than in nonagricultural settings.75 70. The FLSA covers “whose annual gross volume of sales made or business done is not less than $500,000,” as well as domestic workers who earn more than $1700. Handy Reference Guide to the Fair Labor Stands Act, U.S. DEP’T OF LAB. (2023), [https://perma.cc/PLZ5-6Y8N] (last visited Feb. 21, 2024); see also Kati L. Griffith, The Fair Labor Standards Act at 80: Everything Old Is New Again, 104 CORNELL L. REV. 557, 559 (2019) (noting broad coverage). 71. What Jobs Are Off-Limits for Kids?, U.S. DEP’T OF LAB. [https://perma.cc/9GUL-ENW4] (last visited Feb. 21, 2024). 72. Non-Agricultural Jobs—14-15, supra note 69. 73. Non-Agricultural Jobs—Under 14, U.S. DEP’T OF LAB. [https://perma.cc/CF95-CPA7] (last visited Feb. 21, 2024) (even if the business is parent-owned, the child cannot work in one of the seventeen hazardous occupations, manufacturing, or mining). 74. For an example of a state law, see VA. CODE ANN. § 40.1-80.1(B) (2023) (requiring break period of at least thirty minutes for a child employed longer than five continuous hours); VA. CODE ANN § 40.1-79.01 (A)(3), (B) (2023) (setting out farm exemption); VA.. CODE ANN § 40.1-88 (2023) (allowing for employment of a fourteen to sixteen-year-old child during school hours with a work-training certificate). 75. Jonathan Todres, Maturity, 48 HOUS. L. REV. 1107, 1129 (2012); see also 29 U.S.C. § 213(c)(1) (2023) (if the employment is outside of school hours, then exempting children under the age of twelve who are employed by a parent on a farm or employed on a farm with parental consent, subject to other conditions, and unconditionally exempting twelve and thirteen-year-olds from the FLSA when employed by a parent or with parental consent on a farm); 29 U.S.C. § 213(c)(1)(C) (exempting fourteen-year-olds from the FLSA when employed in agriculture, regardless of parental consent); 29 U.S.C. § 213(c)(2) (preventing agricultural employment of children under the age of sixteen in “particularly hazardous” work unless the parent is the employer and the farm is operated or owned by the parent); Harm Venhuizen, Some Lawmakers Propose Loosening Child Labor Laws to Fill Worker Shortage, PBS (May 25, 2023, 2:54 PM), [https://perma.cc/7SGL-GY49] (“Federal law allows children 12 and older to work on farms for any amount of time outside of school hours, with parental permission.”). 3.CAHN.MAN.FIN (2) (DO NOT DELETE) 7/7/2024 8:07 PM 270 ARKANSAS LAW REVIEW Vol. 77:2 This system of regulation still entrusts authority to parents. When the employer is a parent, the presumption is that parents will protect their children. The FLSA provides a “parental exemption” for family farms that allows a child of any age to work for their parents in any job at any time, so long as the parent owns or operates that farm.76 By contrast, those under twelve can otherwise work only on small farms that are not covered by federal minimum wage requirements.77 Similarly, when children under sixteen are working in a non-agricultural business that is owned solely by their parents (or a guardian), the FLSA provides that they can work at any time of the day for unlimited numbers of hours.78 Individual state laws also allow for parents to consent to labor that would otherwise violate state laws. For example, in Arkansas, which precludes children under the age of fourteen from being paid to work, “during school vacation, children under fourteen years may be employed by their parents or guardians in occupations owned or controlled by them.”79 The contrast between the lighter regulation applicable to children’s work under the direct supervision of their parents with regulation of children’s work in other contexts, rests on the assumption that parents supervising their children will safeguard their best interests; when others supervise children, however, the state takes responsibility for overseeing the terms of employment. II. CHANGING CHILD LABOR: PARENTAL RIGHTS RHETORIC AND ROLLBACKS Child labor protections developed in response to the recognition that, in an industrial capitalist society, protecting children’s wellbeing and their future prospects requires a system that combines parental discretion with state and federal action.80 76. CHILD LABOR BULLETIN 102, supra note 68; 29 C.F.R. § 570.126 (parental exemption generally); FLSA—Child Labor Rules Advisor, U.S. DEP’T OF LAB. [https://perma.cc/9CC4-LXW8] (last visited Feb. 21, 2024) (This regulation dates from 1951. The term “parent” includes those standing in the same position as a parent.). 77. Agricultural Jobs—Under 12, U.S. DEP’T OF LAB. [https://perma.cc/XW2D-X3VF] (last visited Feb. 21, 2024). 78. FLSA—Child Labor Rules Advisor, supra note 76. Even then, parents cannot employ their children in occupations deemed to be hazardous. 79. ARK. CODE ANN. § 11-6-104 (2023). 80. See supra Part I. 3.CAHN.MAN.FIN (2) (DO NOT DELETE) 7/7/2024 8:07 PM 2024 CHILDREN AT WORK 271 This Part shows that current attempts to roll back state regulations would undermine children’s wellbeing—and that such calls in the name of parental rights often have little to do with parental autonomy, instead reflecting the ambitions of well-funded campaigns by business interests. In this Part, we show how and why calls for “parental rights” operate to cloak big-business objectives in far more politically palatable terms. When child labor proponents present their goals in the language of parental rights, they conceal their underlying objectives and undermine protections for children, all without truly advancing the rights of parents. The newly proposed legislation rolling back child-labor protections takes a number of different forms.81 In a few states, these proposals seek to lift restrictions on children performing hazardous work.82 In others, they extend work hours for minors.83 In still others, they expand the types of work that children can perform. While most seek to reform state law, that is not true of all: A bill to relax child labor restrictions on logging was introduced in the U.S. Senate, which would allow sixteen and seventeen year olds employed by their parents, or in a business owned or operated by their parents, to operate dangerous machinery.84 Some of this legislation would enact particularly extreme rollbacks of existing legal protections. For example, Iowa’s proposed law would permit fourteen year olds to work in meat coolers and industrial laundries, fifteen year olds to work on assembly lines, and sixteen and seventeen year olds to serve alcohol, among many other provisions.85 It would also allow fourteen-and-a-half year olds to work between the hours of 5:00 AM and 10:00 PM, as well as to drive up to fifty miles to and from work.86 81. See generally Sherer & Mast, Child Labor Laws Are Under Attack, supra note 1. 82. Such legislation was introduced in Iowa and Minnesota. See S.F. 167, 90th Gen. Assemb. (Iowa 2023); S.F. 375, 93d Leg. (Minn. 2023). 83. This was true of proposed legislation in New Jersey, Ohio, South Dakota, and Wisconsin. See A4222, 2022-2023 Leg., Reg. Sess. (N.J. 2022); H.B. 1180, 98th Leg. Sess. (S.D. 2023); S.B. 332, 2021-2022 Leg. ( Wisc. 2022). 84. S. Res. 671, 118th Cong. § 1 (2023). The bill was euphemistically titled the “Future Logging Careers Act.” 85. S.F. 167, 90th Gen. Assemb. (Iowa 2023). 86. Id. 3.CAHN.MAN.FIN (2) (DO NOT DELETE) 7/7/2024 8:07 PM 272 ARKANSAS LAW REVIEW Vol. 77:2 Parental-rights justifications for these labor-protection rollbacks have surfaced most prominently in discussions surrounding Arkansas’s H.B. 1410, formally titled the “Youth Hiring Act of 2023,” passed in March 2023 by the Arkansas State Legislature.87 The law removed the requirements that children under sixteen provide proof of age, a description of their work schedule, and parental consent to the Arkansas Department of Labor and Licensing before they could receive a work permit.88 Rebecca Burkes, a Republican who was a primary sponsor of the bill, stated that the law was intended to “limit government involvement in families’ decisions,”89 and to “restore decision-making to parents concerning their children.”90 Alexa Henning, a spokesperson for Governor Sarah Huckabee Sanders, similarly stated, “[The Governor] believes protecting kids is most important, but doing so with arbitrary burdens on parents to get permission from the government for their child to get a job is burdensome and obsolete.”91 Parental rights’ rationales have also surfaced in other rollback campaigns. When legislation was introduced in Ohio in 2023 that would allow fourteen and fifteen year olds to work until 9:00 PM with parental consent, the Ohio Restaurant Association supported the expansion on the ground that it would allow the teens to “learn, grow and earn,” and applauded the legislation for properly placing “a choice that appropriately belongs to the family.”92 Another witness argued that the parental consent 87. Sydney Kashiwagi, Arkansas Governor Signs Bill Rolling Back Child Labor Protections, CNN (Mar. 8, 2023, 5:52 PM), [https://perma.cc/5VWL-LTPW]. 88. Sydney Kashiwagi, Arkansas Governor Signs Bill Rolling Back Child Labor Protections, ABC 57 (Mar. 8, 2023, 9:42 PM), [https://perma.cc/EL93-WQCA]; Kaitlyn Radde, Arkansas Gov. Sanders Signs a Law That Makes It Easier to Employ Children, NPR (Mar. 10, 2023, 12:07 PM), [https://perma.cc/T77D-NSL6]. 89. Daniel Breen, Bill Loosening Child Labor Restrictions Approved by Arkansas Committee, UALR PUB. RADIO (Feb. 21, 2023, 2:01 PM), [https://perma.cc/ZZ59-RA5P]. 90. Tess Vrbin, Arkansas Bill to Remove Work Permit Requirement for Children Under 16 Goes to Sanders’ Desk, ARK. ADVOCATE (Mar. 2, 2023, 7:56 PM), [https://perma.cc/QHN6-8W27]; Breen, supra note 89 (quoting Burkes). The irony of eliminating parental awareness did not appear in proponents’ remarks. See Jessica Grose, The Absurd Republican Argument for Rolling Back Child Labor Laws, N.Y. TIMES (Aug. 9, 2023), [perma.cc/83NW-JX5K]. 91. Aimee Picchi, Arkansas is Rolling Back Child Labor Protections, MONEYWATCH (Mar. 8, 2023, 11:43 AM), [https://perma.cc/Z7M9-ALY3]. 92. Ohio Restaurant Association Testimony in Support of Senate Bill 30 Before the Senate Workforce and Higher Education Committee, 135th Gen. Assemb., Reg. Sess. (Ohio 3.CAHN.MAN.FIN (2) (DO NOT DELETE) 7/7/2024 8:07 PM 2024 CHILDREN AT WORK 273 requirement protected minors sufficiently despite the weakened labor restrictions on minors,93 while a third witness applauded that it would be “parents not state regulations” that would control children’s work hours.94 Similar justifications have emerged to support the bill relaxing child labor restrictions on logging in the Senate.95 The sponsors of the legislation appealed to conventional family norms, explaining: “This legislation would allow teenage members of logging families to gain experience in the logging trade under parental supervision so they may carry on the family business.”96 The conservative advocacy organizations that support these bills also sometimes rely on parental-rights justifications. Several of the state child-labor bills were supported by a Florida-based think tank, the Foundation for Government Accountability (“FGA”).97 Nick Stehle, the communications vice president for FGA, argued that families like his want “more of the freedom that lets our children flourish.”98 Stehle also argued that loosening labor protection laws for minors would allow parents and 2023) (testimony of Tod Bowen, Managing Dir. of External Affairs & Gov’t Relations, Ohio Restaurant Ass’n). To be sure, the legislation applies only to employers not covered by the FLSA. 93. Senate Workforce and Higher Education Committee Senate Bill 30 Testimony, 135th Gen. Assemb., Reg. Sess. (Ohio 2023) (testimony of Kim Barlag, President & CEO of the Pickerington Area Chamber of Commerce). 94. Testimony in Support of Senate Bill 30 Before the Senate Workforce and Higher Education Committee, 135th Gen. Assemb., Reg. Sess. (Ohio 2023) (testimony of Mayor Mark Mills, City of Coshocton); Proponent Testimony on Senate Bill 30 Before the Senante Workforce and Higher Education Committee, 135th Gen. Assemb., Reg. Sess. (Ohio 2023) (testimony of Chris Ferruso, Interim State Director NFIB) (noting that legislation protects parental prerogatives). 95. S. 671, 118th Cong. § 1 (2023). 96. Risch, King, Golden, Thompson Lead Bipartisan Future Logging Careers Act, JAMES E. RISCH, U.S. SENATOR FOR IDAHO (Mar. 7, 2023), [https://perma.cc/C4RW-WZAN]. Current child labor restrictions deem logging a “hazardous occupation,” and all those under eighteen are banned from engaging in it, regardless of other exceptions concerning parents. Fact Sheet #43: Child Labor Provisions of the Fair Labor Standards Act (FLSA) for Nonagricultural Occupations, U.S. DEP’T OF LAB. (Dec. 2016), [https://perma.cc/E4VA-KA95]. 97. Jacob Bogage & María Luisa Paúl, The Conservative Campaign to Rewrite Child Labor Laws, WASH. POST (May 1, 2023, 12:08 PM), [https://perma.cc/227M-4HAA]. 98. Nick Stehle, California Doesn’t Care About Empowering Families. My State Does, FOX NEWS (Mar. 27, 2023, 6:00 AM), [https://perma.cc/PB5X-KFJH]. 3.CAHN.MAN.FIN (2) (DO NOT DELETE) 7/7/2024 8:07 PM 274 ARKANSAS LAW REVIEW Vol. 77:2 teenagers to have conversations about employment in the private sphere without government interference.99 A. Beneath Parental-Rights Justifications for Child Labor Rollbacks The chief backers of these laws have not been parents, but business and special-interest groups. As a report by the Economic Policy Institute found: [T]he primary proponents of these laws are business groups and their state affiliates, particularly the National Federation of Independent Business, the Chamber of Commerce, and the National Restaurant Association. Hotel, lodging, and tourism associations, grocery industry associations, home builders, and Americans for Prosperity—a billionaire-funded right-wing dark money group—have also supported bills in various states.100 These efforts are occurring at a time of increased labor shortages and increases in employee wages.101 Indeed, they occurred as the labor market was reaching one of the tightest points that it has been since World War II.102 Put simply, the driving motivation for these laws is to ease labor shortages and reduce labor costs by hiring younger teens, who are plentiful, not already employed, and who are comparatively cheap to hire.103 99. See Id. 100. Sherer & Mast, Child Labor Laws Are Under Attack, supra note 1 (internal citations omitted). 101. Sarah Lazare, The Conservative Astroturf Organization Rolling Back Child Labor Protections, THE AM. PROSPECT (Oct. 11, 2022), [https://perma.cc/AU2B-J498]; Venhuizen, supra note 75; Jacob Knutson, Lawmakers Target Child Labor Laws to Ease Worker Shortage, AXIOS (Mar. 14, 2023), [https://perma.cc/5LW7-MSE5]. Americans for Prosperity, a conservative-focused group that provided impetus for the tea party movement, is also a supporter. See Isaac Stanley-Becker, Longtime president of Koch-backed Americans for Prosperity is forced out, WASH. POST (Dec. 1, 2021, 9:52 PM), [https://perma.cc/324X-8DAY] (describing AFP); Henry Gass, Get a Job: After 100 years, states loosen child labor laws, CHRISTIAN SCI. MONITOR (June 6, 2023), [https://perma.cc/LP5K-8BWP]; Wisconsin Senate Approves Child Labor Reforms, NAT’L FED’N OF INDEP. BUS. (Oct. 21, 2021) [https://perma.cc/82AJ-TZBE] (supporting legislation to increase the number of hours that students could work in order to help small businesses). 102. Venhuizen, supra note 75. 103. Minors “tend to be cheaper and more docile workers.” Radde, supra note 18. Employers might have to increase wages and improve conditions to attract adult applicants. Jacob Bogage, In a Tight Labor Market, Some States Look to Another Type of Worker: Children, WASH. POST (Feb. 11, 2023, 8:00 AM), [https://perma.cc/B58A-F8Q9]; 3.CAHN.MAN.FIN (2) (DO NOT DELETE) 7/7/2024 8:07 PM 2024 CHILDREN AT WORK 275 The use of parental-rights rhetoric, we argue, is an attempt to distract from the brute, profit-driven interests that are driving this legislation in order to hire children to perform jobs cheaply by casting these issues in the more politically palatable rhetoric of parental rights. That rhetoric helps to obscure the economic motives driving this wave of legislation and to repackage the legislation in a far more attractive light, in several ways. First, presenting this legislation as enhancing parental autonomy allows parental freedom to serve as a cover for state action to benefit companies that would otherwise be far more difficult to justify. Parental rights have a long, time-honored, and constitutionally recognized tradition that sounds in terms of parents’ own vision regarding the wellbeing of their families and children.104 Deferring to parents’ alleged discretion makes legislators’ support for these bills sound far more noble than if they acknowledged they were supporting the bidding of industry groups seeking cheap labor. Second, portraying these laws as autonomy enhancing obscures the many ways that rolling back market regulations does not, in fact, lead to freedom for families or their children. The association of markets with freedom has a long history in the Anglo-American tradition. Adam Smith observed in eighteenth-century Scotland the most important effect of markets was “the liberty . . . of individuals . . . who had before lived almost in a continual state of . . . servile dependence upon their superiors.”105 Yet as philosopher Elizabeth Anderson points out, the association made far more sense in earlier economies than in our own.106 Before the rise of industrial capitalism, the independent proprietors and craftspersons associated with markets would have see also Melissa Angell, States Are Loosening Child Labor Laws. Should They?, INC. (June 6, 2023), [https://perma.cc/UUA7-2H9D] (“While giving young talent the chance to experience what it means to hold a job and earn money is important, the harsher truth is that some employers simply see minors as cheap labor.”). 104. See Ziegler, Eichner & Cahn, supra note 3, at 31-32; Naomi Cahn, The Political Language of Parental Rights: Abortion, Gender-Affirming Care, and Critical Race Theory, 53 SETON HALL L. REV. 1443, 1445 (2023); Maxine Eichner, Free-Market Family Policy and the New Parental Rights Laws, 101 N.C. L. REV. 1305, 1305 (2023). 105. See ADAM SMITH, 2 THE WEALTH OF NATIONS 107 (P.F. Collier & Son, 1902) (1776). 106. ELIZABETH ANDERSON, PRIVATE GOVERNMENT: HOW EMPLOYERS RULE OUR LIVES (AND WHY WE DON’T TALK ABOUT IT) 4 (2017). 3.CAHN.MAN.FIN (2) (DO NOT DELETE) 7/7/2024 8:07 PM 276 ARKANSAS LAW REVIEW Vol. 77:2 worked as their own masters, set their own hours and their own terms for labor. In today’s labor market, though, employers set the pay, hours and place of work, determine employees’ goals, set the pace of work, and then supervise employees’ performance. This makes those subject to the market today look a lot more like serfs subject to the bidding of a lord than like the market actors controlling their own destinies described by Adam Smith.107 Further the equation of the market with freedom misses the fact that few families have any other alternative way to meet basic needs than through the market. Third, packaging this legislation in terms of parental autonomy hides the considerable risks of harm to children that rolling back these labor protections would cause. This packaging suggests that the legislation will increase children’s wellbeing because decisions by parents are generally made based on love for the children at issue. Indeed, a cardinal reason that parental rights are treated with such respect in the American system is that they are believed to serve the wellbeing of children. As the Supreme Court stated in Parham v. J.R., the law’s deference to parents is premised on the view “that natural bonds of affection lead parents to act in the best interests of their children.”108 Yet there can be little doubt that rolling back the system of labor protections that has long served children’s interests would result in harm to children. B. The Post-Industrial Family109 As discussed earlier, family policies in the United States center on the presumption “that families will privately supply the 107. Id.; SMITH, supra note 105. 108. Parhham v. J.R., 442 U.S. 584, 602 (1979); see also Troxel v. Granville, 530 U.S. 57, 68 (2000) (providing special weight and deference to parents’ rights to determine their children’s interests). In fact, Huntington and Scott make the case that the U.S. system places such high priority on parental rights because doing so generally serves children’s wellbeing. Clare Huntington & Elizabeth S. Scott, Conceptualizing Legal Childhood in the Twenty-First Century, 118 MICH. L. REV. 1371 (2020); see also Anne C. Dailey & Laura A. Rosenbury, The New Parental Rights, 71 DUKE L.J. 75, 78-79 (2021) (agreeing with the consensus view concerning parents). 109. Naomi Cahn & June Carbone, The Blue Family Constitution, 35 J. AM. ACAD. MATRIMONIAL L. 505, 508-09 (2023) [hereinafter The Blue Family Constitution] (discussing the development of the post-industrial family). 3.CAHN.MAN.FIN (2) (DO NOT DELETE) 7/7/2024 8:07 PM 2024 CHILDREN AT WORK 277 resources, services, and conditions that family members need to thrive, largely without the assistance of government.”110 Industrial protections and educational laws developed as part of a system to safeguard children’s wellbeing and economic futures but with a commitment to protect parental rights. Our current, post-industrial economy rewards education and investment in children, and upper-middle-class families are able to set up their children to thrive.111 School attendance, and the education associated with it, is a key element in achieving success, and enriching after-school activities are part of the package.112 A high-school diploma helps; a college diploma still more.113 Education is associated with lower unemployment, higher earnings, and a lower divorce rate.114 While child labor may not increase delinquent behavior in the short term, it is correlated with higher school drop-out rates, which may have longer-term correlations with crime and lower earnings rates.115 110. Eichner, supra note 104, at 1311; see also Naomi Cahn & June Carbone, Uncoupling, 53 ARIZ. ST. L.J. 1, 11-13 (2021) (pointing to reliance on family and employers to provide resources). 111. This is the system that June Carbone and Naomi Cahn have labelled “blue families.” See NAOMI CAHN & JUNE CARBONE, RED FAMILIES V. BLUE FAMILIES, 1-2 (2010); The Blue Family Constitution, supra note 109. 112. The Blue Family Constitution, supra note 109, at 506-07. 113. More than 90% of the population had completed high school in 2022; the rate varies by race. Veere Korhonen, Percentage of the Population in the United States Who Have Completed High School or More From 1960-2022, STATISTA (July 21, 2023), [https://perma.cc/9J3X-NB7L]. The rate varies by race. Census Bureau Releases New Educational Attainment Data, U.S. CENSUS BUREAU (Feb. 16, 2023), [https://perma.cc/VF7W-G6PT] (finding in 2022, 75.2% of Hispanics, 90.1% of Blacks, 92.3% of Asians, and 95.2% of whites were high school graduates, while 20.9% of Hispanics, 27.6% of Blacks, 59.3% of Asians, and 41.8% of whites were college graduates). 114. See Education Pays, 2022, U.S. BUREAU OF LAB. STAT. (May 2023), [https://perma.cc/M9PW-D6RU]; Unemployment Rate in the United States from 1992-2022, by Level of Education, STATISTA (Nov. 3, 2023), [https://perma.cc/TP9W-BSK3] (Those with the highest education have the lowest unemployment rates.); Kim McErlean, The Growth of Education Differentials in Marital Dissolution in the United States, 45 DEMOGRAPHIC RSCH. 841, 846 tbl. 3 (2021) (Those with a college degree have about half the risk of divorce of those with less education over a ten year period). 115. See Robert Apel et al., Using State Child Labor Laws to Identify the Causal Effect of Youth Employment on Deviant Behavior and Academic Achievement, 24 J. QUANTITATIVE CRIMINOLOGY 337 (2008); Jeremy Staff et al., Is Adolescent Employment Still a Risk Factor for High School Dropout?, 30 J. RSCH. ON ADOLESCENCE 406 (2020) (Intensive work by teens is a risk factor for low grades and school drop-out.); Janessa M. Graves et al., Quality of Life Among Working and Non-working Adolescents, 26 QUALITY OF LIFE RSCH. 107, 108 (2017) (For younger teens and teens working long hours, work during the academic year can have a negative impact on their quality of life.). By contrast, high-quality afterschool 3.CAHN.MAN.FIN (2) (DO NOT DELETE) 7/7/2024 8:07 PM 278 ARKANSAS LAW REVIEW Vol. 77:2 Our system has long combined significant parental rights with both state and federal labor law protections for children to ensure they have a chance to obtain the education necessary to safeguard their future. The current legislation unwinds this system to children’s threatened detriment. It is perhaps not surprising that the two states that have enacted changes to their child labor laws to permit children to engage in hazardous work are also the ones with the lowest rates of college graduation.116 Migrant children are especially vulnerable to child labor violations, an issue addressed more fully by others in this symposium.117 Unaccompanied minors serve as a “shadow workforce” without parents to protect them.118 The causes are numerous, but, significantly, they serve as “a pool of potential workers whom employers may exploit, knowing they have no other viable options.”119 Moreover, many work in the agricultural sector, which already has weaker protections.120 III. CHALLENGING THE ROLLBACK OF CHILD LABOR RESTRICTIONS Limitations on child labor effectuate the state’s interest in educating children, and these restrictions have become particularly significant in the post-industrial age for supporting programs are associated with improved educational and social outcomes. Supporting Student Success Through Afterschool Programs, NAT’L CONF. OF STATE LEGISLATURES (Sept. 11, 2023), [https://perma.cc/6NND-5QQH]; but see Pamela Paul, The Best Extracurricular May Be an After-School Job, N.Y. TIMES (July 30, 2022), [https://perma.cc/AQR2-F94R] (setting out valuable learning experiences from afterschool jobs). 116. College Graduation Rate by State 2024, WORLD POPULATION REV., [https://perma.cc/LS9J-MQEN] (last visited Feb. 23, 2024). Arkansas has the lowest graduation rates in the country, aside from West Virginia and Mississippi. Id. Iowa ranks in the bottom twenty. Id. New Hampshire and New Jersey, which both rank in the top ten states with highest college graduation rates, have extended the hours that minors can work, but have not changed the limitations on hazardous activities. See id.; Ariana Figueroa, Kids at Work: States Try to Ease Child Labor Laws at Behest of Industry, N.J. MONITOR (Apr. 7, 2023, 2:31 PM), [https://perma.cc/M5U6-MEXG]. 117. See, e.g., Shefali Milczarek-Desai, (Hidden) in Plain Sight: Migrant Child Labor and the New Economy of Exploitation, 77 ARK. L. REV. 345; Dreier, supra note 2. 118. Hannah Dreier, Alone and Exploited, Migrant Children Work Brutal Jobs Across the U.S., N.Y. TIMES (Feb. 25, 2023), [https://perma.cc/CRR5-96VL]. 119. Sherer & Mast, Child Labor Laws Are Under Attack, supra note 1. 120. Id. 3.CAHN.MAN.FIN (2) (DO NOT DELETE) 7/7/2024 8:07 PM 2024 CHILDREN AT WORK 279 children. Consequently, maintaining and, perhaps strengthening, these protections serve important state goals. This Part turns to suggestions on how to challenge these efforts, arguing for the need to unmask parental rights rhetoric and show that it is unrelated to the actual reasons for relaxing child labor restrictions. While opponents have already questioned the underlying rationales and shown the impact on children of these new legislative proposals, additional steps can be taken around the parental rights’ claims.121 To be sure, this is certainly a political issue at both the state and federal level. Deep-red states are not the only ones to have relaxed child labor protections: Minnesota, New Hampshire, and New Jersey have all considered or enacted relevant legislation.122 The pragmatic steps to ensure ongoing protection of child labor take the same form as other legal and public campaigns to ensure appropriate governmental support for families. A first step is simple public awareness campaigns about the importance of school, the impact of work on children’s school performance, and the real reasons for seeking relaxation of child labor standards. One of the counterarguments to the Arkansas legislation, for example, focused on the harms of rolling back child labor protections, noting that not only would the individual child be harmed, but so would their families because they had been working rather than doing homework.123 Increased public awareness might then motivate broader opposition, such as involving parents in the effort to protect children, with parents testifying in opposition to any legislative proposals. A second, and related, step might be using parental rights claims to resist, rather than reinforce, the spread of child labor. Certainly, when states remove existing parental rights, such as 121. Id. 122. Id.; see also Mary Ann Koruth, NJ Bill Would Allow Teens to Work up to 50 Hours a Week. Here’s Why Some Oppose It, NORTHJERSEY.COM (June 30, 2022, 2:05 PM), [https://perma.cc/K5JF-BX65] (Proposed legislation would create a database of minors seeking work, without parental permission needed for minors to enroll, although parents would find out if their children had signed up; this would change a system in which parents must sign the initial application form for a minor seeking a work permit.); Sophie Nieto-Munoz, Teens in N.J. Can Work Longer Summer Hours under New Law, N.J. MONITOR (July 6, 2022, 2:12 PM), [https://perma.cc/FUY3-RS7F] (reporting on enactment of legislation and its potential impact). 123. Vrbin, supra note 90. 3.CAHN.MAN.FIN (2) (DO NOT DELETE) 7/7/2024 8:07 PM 280 ARKANSAS LAW REVIEW Vol. 77:2 through Arkansas’s jettisoning of the requirement of a work permit, parents might consider a legal challenge. Courts will then be confronted, explicitly, with state efforts to override parental rights and must make decisions about the comparative strengths of each. The risk is that parents will lose, but parents will be defining the terms of the debate.124 Indeed, ensuring that parents are involved in, and perhaps required to consent to, their children’s labor could build in more guardrails against exploitation while also serving as legitimate recognition and protection of parental rights.125 Of course, bans on child labor do restrict parental rights, so the appeal of loosening restrictions is to permit parents to make decisions on behalf of their children. On the other hand, the current crop of laws and their appeal to parental rights does nothing to enhance parental decision making. Instead, they rationalize the harm to minors hiding the aims of those passing laws. A third step is to ensure improved enforcement of existing federal protections.126 Under principles of pre-emption, states’ efforts to expand the use of child labor can be reined in through Department of Labor enforcement, a strategy that Iowa legislators used in opposition to new state legislative efforts. Yet at the end of 2023, the Department of Labor had only roughly 60% the number of wage and hour investigators as the agency did at its peak in 1978.127 Federal legislation or regulation could also provide increased protection. 124. See, e.g., L. W. ex rel. Williams v. Skrmetti, 83 F.4th 460, 472, 475, 513 (6th Cir. 2023) (allowing override of parental rights’ claims concerning state ban on gender-affirming care for minors); Brandt v. Rutledge, No. 4:21CV00450 JM, 2023 WL 4073727 (E.D. Ark. June 20, 2023); Brandt ex rel. Brandt v. Rutledge, 47 F.4th 661, 672 (8th Cir. 2022). 125. To be sure, parental involvement presents complex issues, as shown in debates over whether schools must reveal children’s decisions to change pronouns, or whether minors can obtain abortions or confidential access to contraception without parental awareness. In these situations, as well as with child labor, parents may well have differing interests than their children. For further discussion of the subtlety of these issues, see Ira C. Lupu, The YCentennial of Meyer and Pierce: Parents’ Rights, Gender-Affirming Care, and Issues in Education, 24 J. CONTEMP. LEGAL ISSUES (forthcoming 2024). 126. The Department of Labor confirmed a record number of child labor cases in 2023. Lauren Kaori Gurley, Child Labor Violations Soared in Fiscal 2023, WASH. POST (Oct. 19, 2023, 5:20 PM), [https://perma.cc/PJ5A-KBMY] (noting that the number of cases does not necessarily indicate the total number of children employed in violation of the laws). 127. See Gerstein, supra note 1, at 5. 3.CAHN.MAN.FIN (2) (DO NOT DELETE) 7/7/2024 8:07 PM 2024 CHILDREN AT WORK 281 CONCLUSION The attempt to diminish child labor protections is part of broader efforts to erode labor protections and to undermine development of a welfare state. Accordingly, efforts to preserve and strengthen these protections take their place in broader reforms to the current wage labor system, including increasing the minimum wage, protecting unions, and reforming immigration.128 128. See, e.g., Sherer & Mast, Child Labor Laws Are Under Attack, supra note 1; NAOMI CAHN, JUNE CARBONE & NANCY LEVIT, FAIR SHAKE: WOMEN AND THE FIGHT TO BUILD A JUST ECONOMY (2024) (on the need for even broader reforms). 4.FUKUSHIMA.MAN.FIN (1) (DO NOT DELETE) 7/7/2024 8:12 PM SEEING RACE & SEXUALITY: CHILD WELFARE & FORCED LABOR Annie Isabel Fukushima∗ Jens Nilson Kaden Richards INTRODUCTION In 2021, California couple Nery Martinez Vasquez and Maura Martinez made headline news after pleading guilty to conspiracy to commit forced labor for “forcing a Guatemalan relative and her two daughters to work long hours under poor conditions. They kept the girls out of school with threats that they would be deported.”1 Vasquez and Martinez trafficked the family into restaurant services and cleaning and janitorial services for minimal to no pay from September 2016 to February 2018, compelling the mother and her two children to overstay their visas as part of their forced labor.2 This case was recognized as human trafficking, leaving one to wonder: Why were children involved in forced labor for nearly one-and-half years without intervention? As the case of Vasquez and Martinez made headline news as a “successful prosecution,” other questions emerged surrounding the role of the state in responding to child labor trafficking and how race and sexuality came to matter in ∗ We are grateful to the participants in the study whose work in a variety of fields of child welfare, social services, non-profit, and juvenile justice, brings them to the forefront of responding to violence. We so appreciate the work of Stephanie Richards, Melissa Gomez, and Preventing and Addressing Child Trafficking (PACT) Team members: Jamelia Hinds and the late Deborah Pembrook. We also want to extend appreciation to the editors of Arkansas Law Review Brett Callaway, Jissel Esparza Saucedo, Professor Annie Smith, and the organizers of the Arkansas Law Review Symposium. The undergraduate research support for this project was provided by the Office of Undergraduate Research Undergraduate Opportunity Program at the University of Utah. 1. Simone Soublet, Northern California Couple Forced Family to Work in Poor Conditions, Kept Children Out of School, ABC10 (Aug. 25, 2021, 11:50 AM), [https://perma.cc/EJC4-SHTB]. 2. California Restaurant Owners Plead Guilty to Conspiracy to Commit Forced Labor, U.S. DEP’T OF JUST. (Aug. 24, 2021), [https://perma.cc/79MQ-3M9E]. 4.FUKUSHIMA.MAN.FIN (1) (DO NOT DELETE) 7/7/2024 8:12 PM 284 ARKANSAS LAW REVIEW Vol. 77:2 furthering the invisibility of child labor despite child labor laws, human trafficking laws, and requirements for children to attend school. In part, the invisibility of addressing child labor exploitation is due to the persistence of a common misperception: The passage of the Fair Labor Standards Act addressed major labor violations against children.3 Notwithstanding growing interest and understanding about human trafficking, current U.S. policy, practice, and research is insufficient in describing how systems respond to child abuse comprised of forced labor.4 This Article examines how child welfare responds to children who are forced to labor through a case study of California. We use an intersectional framework to argue that a conceptualization of current sociolegal responses to human trafficking cannot be delinked from racialized and sexualized forms of governmentality. In using an intersectional framework, we hope to draw upon intersectionality as a way to “point[] to the ways that structural inequality, persistent disadvantages, and structural abandonment are some of the root causes of microlevel violent interactions and at the same time influence how effective macrolevel justice policies are at responding to or preventing violent victimization.”5 By examining the differential role of child welfare responses as a localized response to a global form of exploitation, human trafficking, it is shown that race, gender, and national origin continue to impact those who are perceived as “victims” of human trafficking in the United States. This perception of victimhood is predicated on protecting whiteness and is rooted in institutional efforts to normalize the victimization of people of color, immigrants, and the financially vulnerable. As this study occurred prior to and concurrent with the COVID-19 pandemic (2019-2021), the context of how minoritized communities experienced marginalization during a global crisis is also important to acknowledge. 3. See BETSY WOOD, UPON THE ALTAR OF WORK: CHILD LABOR AND THE RISE OF A NEW AMERICAN SECTIONALISM 151 (2020). 4. Katherine Kaufka Walts, Child Labor Trafficking in the United States: A Hidden Crime, SOC. INCLUSION, 2017, at 59, 62. 5. Beth E. Richie, The Effects of Violence on Communities: The Violence Matrix as a Tool for Advancing More Just Policies, DAEDALUS, Winter 2022, at 84, 84. The author also defines the violence matrix. Id. at 85. 4.FUKUSHIMA.MAN.FIN (1) (DO NOT DELETE) 7/7/2024 8:12 PM 2024 SEEING RACE & SEXUALITY 285 Human trafficking is legally defined by the Trafficking Victims Protection Act as a crime that involves exploiting a person for labor, services, or commercial sex.6 Labor trafficking occurs when an employer secures labor through coercion, force, or fraud. Children who experience labor trafficking experience it in a range of industries, including being forced into illicit drug economies (sales, transportation, handling products), pan handling, labor in clothing industries, agriculture (pine trees, flower picking, dairy industry, fruit), hospitality, festival work, domestic work (housekeeping, nannying, cooking), street vending, and door-to-door sales (chocolate and magazine sales). The varying legal perceptions of human trafficking mean that it is not the industry that makes it “human trafficking,” but rather the coercion, work conditions, and the experience with exploitation. Forced labor includes conditions of human trafficking and involuntary work that impact people across the life course. In this Article, we focus on the experiences of children—people who are under eighteen years of age. In 2020, the Bureau of International Labor Affairs found that 155 goods imported by the United States were from seventy-seven countries that used forced labor and exploited 73 million children through hazardous labor.7 There are limited data about child labor trafficking in the United States due to the decentralized data collection about human trafficking and the limited identification of children who are labor trafficked. In 2021, the National Human Trafficking Hotline received 32,709 phone calls regarding human trafficking.8 In 2018, the National Human Trafficking Hotline identified 1,651 cases of human trafficking reported in California, with 167 of these cases not specifying the type of trafficking.9 During Fiscal Year 2022, the 6. See Trafficking Victims Protection Act of 2000, Pub. L. No. 106-386, § 102, 114 Stat. 1464, 1466 (codified as amended at 22 U.S.C. §§ 7101-7110 (2005). The Trafficking Victims Protection Act of 2000 (“TVPA”) is the first section of the three-part Victims of Trafficking and Violence Protection Act. See § 102, 114 Stat. at 1466. 7. BUREAU OF INT’L LAB. AFFS., U.S. DEP’T OF LAB., 2020 LIST OF GOODS PRODUCED BY CHILD LABOR OR FORCED LABOR 2, 19 (2020), [https://perma.cc/8MMD-KTMT]. 8. National Human Trafficking Hotline Data Report: 1/1/2021-12/31/2021, NAT’L HUMAN TRAFFICKING HOTLINE, [https://perma.cc/9G2H-EE9C] (last visited Feb. 16, 2024). 9. California, NAT’L HUMAN TRAFFICKING HOTLINE, [https://perma.cc/LBC2-UVGH] (last visited Feb. 16, 2024). 4.FUKUSHIMA.MAN.FIN (1) (DO NOT DELETE) 7/7/2024 8:12 PM 286 ARKANSAS LAW REVIEW Vol. 77:2 U.S. Department of Justice opened fifty-five investigations into domestic labor trafficking, leading to eight convictions.10 In the same year, the U.S. Department of Health and Human Services provided Eligibility or Interim Assistance Letters to 2,264 foreign national children, 77% of whom had experienced labor trafficking.11 Seemingly small numbers, human trafficking trends represent the tip of the iceberg. Not all victims of human trafficking are counted where “victims” are legible in systems where prosecutions occurred, a Victims of Trafficking in Persons nonimmigrant visa or T-Visa for victims of human trafficking were issued, or the case was counted by state institutions. Not all victims of human trafficking are counted by reproducing a “tethered subjectivity” where survivors of human trafficking are bound to be seen in dualities of victim or criminal, “illegal” or legal, or those who have access to citizenship or those who are denied.12 This duality makes it difficult to recognize that a person can simultaneously experience victimization while participating in criminalized activities.13 To prevent abuse in supply chains, California enacted the California Transparency in Supply Chains Act, which requires businesses and manufacturing companies to disclose their “efforts to eradicate slavery and human trafficking.”14 This law does not apply to sellers or manufacturers with less than $1 million in annual worldwide gross receipts, meaning that laborers in small businesses in some states may be invisible to responses to prevent trafficking.15 During the global pandemic, the United States implemented Executive Order 14001, “On a Sustainable Public 10. 2023 Trafficking in Persons Report: United States, U.S. DEP’T OF STATE, [https://perma.cc/ABZ5-9WAH] (last visited Feb. 16, 2024). 11. Id. The Department of Health and Human Services provides Eligibility or Interim Assistance Letters to foreign national children who are credibly identified as trafficking victims. Id. These letters allow them to apply for benefits in the same capacity as refugees. Id. 12. See ANNIE ISABEL FUKUSHIMA, MIGRANT CROSSINGS: WITNESSING HUMAN TRAFFICKING IN THE U.S. 12 (2019). 13. See Debra A. Love, Annie I. Fukushima, Tiana N. Rogers, Ethan Petersen, Ellen Brooks & Charles R. Rogers, Challenges to Reintegration: A Qualitative Intrinsic Case-Study of Convicted Female Sex Traffickers, 18 FEMINIST CRIMINOLOGY 24, 25 (2021) (examining the circumstances that led participants into human trafficking). 14. CAL. CIV. CODE § 1714.43 (a)(1) (2012). 15. CAL. CIV. CODE § 1714.43 (a)(1). 4.FUKUSHIMA.MAN.FIN (1) (DO NOT DELETE) 7/7/2024 8:12 PM 2024 SEEING RACE & SEXUALITY 287 Health Supply Chain,” to create a national strategy to establish standards and governance of biological threats and security threats that included sub-goals to “[e]nsure equitable labor conditions by promoting best practices and U.S. adherence to child labor and forced labor laws and regulations in supply chains.”16 Although some states—including California—have child labor laws and mandatory school attendance laws, the legal response varies by state, while children continue to experience labor trafficking. In contrast to the plethora of research on trafficking into sexual economies, child labor trafficking into commercial industries beyond sex industries is viewed as hidden or understudied.17 It is widely known that poverty is a major predictor of human trafficking,18 where the “[l]ack of employment opportunities, access to education and affordable housing means survivors, even those identified by law enforcement and participating in prosecutions, continue to struggle post-trafficking.”19 Recognizing that labor trafficking is part of labor markets, both formalized and informalized, immigrant victims of labor trafficking arrive in the United States for work opportunities and/or to improve the quality of life for their family members and themselves. Research shows that a lack of upward mobility, perceived economic opportunity in the United States, and conflict in their home countries drives labor migrants to seek employment overseas in countries like the United States, where immigrant precarity is also a central factor contributing to human trafficking.20 Human trafficking is 16. NATIONAL STRATEGY FOR A RESILIENT PUBLIC HEALTH SUPPLY CHAIN 10, 34 (2021), [https://perma.cc/TL3Q-ASYQ]. 17. See Walts, supra note 4, at 62; 4Deborah A. Gibbs et al., Human Trafficking and the Child Welfare Population in Florida, 88 CHILD. & YOUTH SERVS. REV. 1, 1 (2018). 18. Kevin Bales, What Predicts Human Trafficking?, 31 INT’L J. COMPAR. & APPLIED CRIM. JUST. 269, 269-70 (2011); T.K. Logan et al., Understanding Human Trafficking in the United States, 10 TRAUMA, VIOLENCE & ABUSE 3, 10 (2009). 19. Abigail Swenstein & Kate Mogulescu, Resisting the Carceral: The Need to Align Anti-Trafficking Efforts with Movements for Criminal Justice Reform, 6 ANTI-TRAFFICKING REV. 118, 119 (2016). 20. See John Cheng & Kimberly Chang, Immigration, Precarity, and Human Trafficking: Histories and Legacies of Asian American Racial Exclusion in the United States, in THE HISTORICAL ROOTS OF HUMAN TRAFFICKING: INFORMING PRIMARY PREVENTION 4.FUKUSHIMA.MAN.FIN (1) (DO NOT DELETE) 7/7/2024 8:12 PM 288 ARKANSAS LAW REVIEW Vol. 77:2 complex and caused by interlocking forms of oppression, including sexism, racism, and nativism. Few studies examine child welfare responses to child labor trafficking by examining the centrality of race and sexuality in sociolegal responses; therefore, this Article offers a unique intellectual and policy theoretical intervention. This Article contributes to the scholarly literature on labor trafficking by bringing to the center the role of race and sexuality in anti-trafficking institutional responses to child labor and abuse. While most would agree that no child should experience trafficking, the role of governmentality means that even in seemingly uncontroversial cases, responding to child abuse and the rights of the child and the inability to see race and sexuality as a core aspect of institutional responses has legal and social repercussions leading to limited responses to child labor trafficking. To understand how race and sexuality are seen in the social and legal responses by child welfare to child labor trafficking, this study employed a mixed-methods analysis of case study analysis of child welfare responses to child labor trafficking in California. Data for this study were gathered between 2019 and 2021, including surveys conducted in two stages (n=186 and n=1,384) and semi-structured interviews (n=11). I. CALIFORNIA’S CHILD WELFARE & ANTI-TRAFFICKING RESPONSE Human trafficking has consequences for children who experience it, where it is recognized that child abuse and neglect have the potential to create long-lasting impacts depending on the severity and chronicity of the abuse, as well as when the abuse occurred and protective factors present in the child’s life.21 While the child welfare system is understood as encompassing specific services for children—adoption, foster care, child protection investigation, and family-centered support and services—the child welfare system comprises the organizations that are called OF COMMERCIALIZED VIOLENCE 169, 169-7 (Makini Chisolm-Straker & Katherine Chon eds., 2021). 21. For studies on all of these factors, see NEW DIRECTIONS IN CHILD ABUSE AND NEGLECT RESEARCH (Anne C. Peterson, Joshua Joseph & Monica Feit eds., 2014). 4.FUKUSHIMA.MAN.FIN (1) (DO NOT DELETE) 7/7/2024 8:12 PM 2024 SEEING RACE & SEXUALITY 289 upon when a child experiences abuse.22 It is widely recognized that youth are more likely to be identified as trafficked in the child welfare system.23 Regardless of intention, child welfare systems are also perceived by some scholars as a primary institution of racialized and gendered poverty governance.24 Neoliberal paternalist poverty governance is best described as the role of the state in shaping “poor people” into “good citizens” that also enlist civil society institutions in this endeavor and work enforcement.25 Consequently, the very same mechanisms of reporting and responding to child abuse, like the child welfare system, are also those that police and discipline children who are perceived as incompliant with regards to societal norms or expectations. There is a plethora of research examining the child welfare response to trafficking in sexual economies,26 also referred to as domestic minor sex trafficking. Public discourse furthers the perception of child sex trafficking as “everywhere” and “big business.”27 The response to child trafficking is dependent on furthering images of preventing or addressing how trafficking leads to “innocence loss.”28 Research on child sex trafficking 22. Id. at 176. 23. See Jennifer E. O’Brien et al., Domestic Minor Sex Trafficking Among Child Welfare-Involved Youth: An Exploratory Study of Correlates, 22 CHILD MALTREATMENT 265, 265 (2017); Suzanne Piening & Theodore Cross, From “The Life” to My Life: Sexually Exploited Children Reclaiming Their Futures, CHILD.’S ADVOC. CTR. OF SUFFOLK CNTY. 4 (2012), [https://perma.cc/TJ6Q-UNCS]. 24. For this perspective on the child welfare system, see Marilyn Brown & Barbara E. Bloom, Colonialism and Carceral Motherhood: Native Hawaiian Families Under Corrections and Child Welfare Control, 4 FEMINIST CRIMINOLOGY 151 (2009). 25. Kerry C. Woodward, Race, Gender, & Poverty Governance: The Case of the U.S. Child Welfare System, 28 SOC. POL. 428, 435-36 (2021); JOE SOSS ET AL., DISCIPLINING THE POOR: NEOLIBERAL PATERNALISM AND THE PERSISTENT POWER OF RACE 81-82 (2011). 26. Cf. Rowena Fong & Jodi Berger Cardoso, Child Human Trafficking Victims: Challenges for the Child Welfare System, 33 EVALUATION & PROGRAM PLAN. 311, 311 (2010) (arguing that adults receive more attention than children but contrasts it with a growing body of research on the sex trafficking of minors). 27. ALISA JORDHEIM, MADE IN THE USA: THE SEX TRAFFICKING OF AMERICA’S CHILDREN 9 (2014). 28. See Carrie N. Baker, Moving Beyond “Slaves, Sinners, and Saviors”: An Intersectional Feminist Analysis of US Sex-Trafficking Discourses, Law and Policy, 4 J. FEMINIST SCHOLARSHIP 1, 2-4 (2013) (describing depictions of human trafficking and their reliance on rescue narratives coupled with the loss of innocence of the victim). 4.FUKUSHIMA.MAN.FIN (1) (DO NOT DELETE) 7/7/2024 8:12 PM 290 ARKANSAS LAW REVIEW Vol. 77:2 often tethers it to a specific predictor: child sexual abuse.29 In contrast, for the child who experiences labor exploitation in economies beyond sexualized industries, their experience is linked to informalized labor like traveling sales crews; forced drug sales; domestic work (or nannies); and formalized industries such as laboring in agriculture, restaurant, cleaning services, and hotel industries, to name a few. However, the criminalization of informal activities, like forced arms sales and forced drugs sales, has meant that despite known reports of coercion and forced labor, children continue to be misperceived as not trafficked, and instead, criminalized. Additionally, the ongoing attention given to protecting children from “innocence loss” and the focus on child sexuality in commercial sexual exploitation of children (“CSEC”) has meant that other forms of child trafficking continue to receive less attention.30 In the 2021 United States annual Trafficking in Persons Report, advocates recommended that the federal government increase attention to labor trafficking and stated that “federal efforts around addressing human trafficking in the child welfare system focused almost exclusively on child sex trafficking and [advocates] called for equal efforts to address child labor trafficking within the system.”31 The role of the state in responding to child human trafficking has been legislated in states like California, where the child welfare response to child trafficking into sexual economies is robust, with laws like the California Trafficking Victims 29. See, e.g., Francine Lavoie et al., Buying and Selling Sex in Québec Adolescents: A Study of Risk and Protective Factors, 39 ARCHIVES OF SEXUAL BEHAV. 1147, 1147 (2010); Brandon D. L. Marshall et al., Survival Sex Work and Increased HIV Risk Among Sexual Minority Street-Involved Youth, 53 J. ACQUIRED IMMUNE DEFICIENCY SYNDROME 661 (2010); Joan A. Reid, An Exploratory Model of Girl’s Vulnerability to Commercial Sexual Exploitation in Prostitution, 16 CHILD MALTREATMENT 146, 146 (2011); Dominique E. Roe-Sepowitz, Juvenile Entry into Prostitution: The Role of Emotional Abuse, 18 VIOLENCE AGAINST WOMEN 562, 573 (2012); Kimberly A. Tyler et al., The Impact of Childhood Sexual Abuse on Later Sexual Victimization Among Runaway Youth, 11 J. RSCH. ON ADOLESCENCE 151, 151 (2001); Selina Varma et al., Characteristics of Child Commercial Sexual Exploitation and Sex Trafficking Victims Presenting for Medical Care in the United States, 44 CHILD ABUSE & NEGLECT 98, 99, 104 (2015). 30. See Gibbs et al., supra note 17, at 2. 31. U.S. DEP’T OF STATE, TRAFFICKING IN PERSONS REPORT 590 (2021), [https://perma.cc/L4GF-WB6Y]. 4.FUKUSHIMA.MAN.FIN (1) (DO NOT DELETE) 7/7/2024 8:12 PM 2024 SEEING RACE & SEXUALITY 291 Protection Act of 2005.32 The state’s endeavors to address human trafficking and the preoccupation with addressing child sex trafficking are delineated in laws passed to address exploitation. For example, California’s Abolition of Child Commerce, Exploitation, and Sexual Slavery Act of 2011 increased fines against a person procuring a minor for sex.33 In 2012, California Senate Bill 1133 authorized forfeiture provisions to allow forfeited property to go towards funding services for minor victims of commercial sexual exploitation.34 Two years later, in 2014, the Committee on Budget and Fiscal Review implemented a state-wide effort to address CSEC through the creation of the Commercially Sexually Exploited Children’s Program (Senate Bill 855).35 And in 2016, the decriminalization of children whose crimes were related to trafficking made possible a cultural shift that once criminalized children involved in sexual economies. The codification of Senate Bill 1322 in 2022 furthered the belief that there is “no such thing as a child prostitute” when it amended California’s Penal Code so that any person under eighteen years old could no longer be arrested on prostitution charges.36 However, the particular focus on prostitution and loitering charges has meant that not all forms of criminalized activities related to child trafficking (i.e., drug sales, forced smuggling, undocumented entry, and forced arms sales) are decriminalized. The history of legislation showcases a statewide commitment to addressing a specific form of labor exploitation: sexual exploitation. There exist resources for children who are identified as experiencing all forms of human trafficking. In 2019, the state expanded the eligibility for compensation through the California 32. CAL. ATT’Y GEN. OFF., HUMAN TRAFFICKING IN CALIFORNIA: FINAL REPORT OF THE CALIFORNIA ALLIANCE TO COMBAT TRAFFICKING AND SLAVERY TASK FORCE 3 (2007), [https://perma.cc/RX3S-KJBA]. 33. 2011 Cal. Legis. Serv. ch. 75 (A.B. 12) (West) (amending CAL. PENAL CODE § 261.9). 34. 2012 Cal. Legis. Serv. ch. 514 (S.B. 1133) (West) (amending CAL. PENAL CODE § 186.8). 35. Ivy Hammond et al., Evaluating California’s Efforts to Address the Commercial Sexual Exploitation of Children, URB. INST. 2 (July 13, 2023), [https://perma.cc/BLN4-ABWW]. 36. CA Law Affirms: There Is No Such Thing as a Child Prostitute, NAT’L CTR. FOR YOUTH L. (Apr. 1, 2022), [https://perma.cc/8BX3-R9QG]. 4.FUKUSHIMA.MAN.FIN (1) (DO NOT DELETE) 7/7/2024 8:12 PM 292 ARKANSAS LAW REVIEW Vol. 77:2 Victim Compensation Board.37 Children identified as trafficked may access mental health services and receive reimbursement for job training, relocation costs, and medical costs.38 The growing resources for children identified as trafficked highlight how legislative efforts continue to prioritize response to CSEC, leaving absent a robust response to when children experience other forms of labor exploitation beyond sexualized economies. We argue that the lack of a social and legal response to all forms of labor, including commercial labor trafficking of children, is due to racialized and gendered poverty governance that perseveres in anti-trafficking legal responses and strategies. What follows next is a discussion of the research methods. II. METHODS A. Overview Data collection for this study began in 2019 and continued into 2021. This study received Institutional Review Board approvals. Data collection took place in two stages. During stage one, child welfare workers in California were invited to respond to a fifty-five-question survey comprised of open-ended and Likert-scale questions. Partnerships with California organizations such as the Child & Family Policy Institute of California (“CFPIC”) and Coalition to Abolish Slavery and Trafficking (“CAST”) led to the survey being disseminated to child-welfare list services across the state of California. One-hundred-eighty-six individuals participated in the survey, and these participants were invited to be interviewed. Then, in 2020, semi-structured interviews with eleven individuals were conducted over Zoom and transcribed immediately afterwards, with thematic analysis deployed to understand the emergent themes for responders of child labor trafficking during the COVID-19 pandemic. Thematic analysis occurs “where the researcher investigates for themes across various case types—a 37. See Who Is Eligible, CAL. VICTIM COMP. BD., [https://perma.cc/2GH5-TVG7] (last visited Feb. 17, 2024). 38. What Is Covered, CAL. VICTIM COMP. BD., [https://perma.cc/DVQ8-8KMX] (last visited Feb. 17, 2024). 4.FUKUSHIMA.MAN.FIN (1) (DO NOT DELETE) 7/7/2024 8:12 PM 2024 SEEING RACE & SEXUALITY 293 competency in pattern recognition.”39 The consolidated criteria for reporting qualitative research checklist was used to ensure the quality of the qualitative data collection,40 and eleven interviews were sufficient to meet saturation.41 Stage two of data collection included analysis of pre-surveys and post-surveys collected from training on labor trafficking led by CFPIC and CAST.42 Eight-hundred-eighty-four individuals participated in the survey, where they responded to questions before and after training that included information on child labor trafficking, trafficking laws, and identification of child trafficking victims. The individuals were professionals responding to child abuse-related issues and prospective responders to child labor trafficking, such as law enforcement, probation officers, social service providers, advocates, government employees, and nongovernmental employees. Eight-hundred-eighty-four participants filled out pre-surveys, and over half of the participants (n=500; 57%) filled out post-surveys as well. B. Participant Summary One-hundred-eighty-six individuals responded to the survey in stage one, with participants being nearly half White or Caucasian (51%), a quarter Hispanic/Latino (24%), one-tenth African American or Black (11%), with lesser representation of Native American (2%), Native Hawaiian or Pacific Islander (1%), and other (9%). Eighty-three percent of the survey participants identified as Female. Forty-six percent identified as working in 39. Annie Isabel Fukushima, Food Matters: Trafficked Transnational Migrants’ Experiences and the Matrix of Food (In)Security, 12 J. HUM. RTS. PRAC. 364, 369 (2020) (citations omitted); see generally RICHARD E. BOYATZIS, TRANSFORMING QUALITATIVE INFORMATION (1998); MICHAEL QUINN PATTON, QUALITATIVE RESEARCH & EVALUATION METHODS (4th ed. 2015); JOHNNY SALDAÑA, THE CODING MANUAL FOR QUALITATIVE RESEARCHERS (3d ed. 2016). 40. See generally Alison Tong et al., Consolidated Criteria for Reporting Qualitative Research (COREQ): A 32-Item Checklist for Interviews and Focus Groups, 19 INT’L J. FOR QUALITY IN HEALTH CARE 349, 349 (2007). 41. See Greg Guest et al., How Many Interviews Are Enough? An Experiment with Data Saturation and Variability, 18 FIELD METHODS 59, 59 (2006). 42. The training was entitled “Child Labor Trafficking and Commercial Sexual Exploitation,” and it was done in consultation with Preventing and Addressing Child Trafficking team members Jamelia Hinds and the late Deborah Pembrook. 4.FUKUSHIMA.MAN.FIN (1) (DO NOT DELETE) 7/7/2024 8:12 PM 294 ARKANSAS LAW REVIEW Vol. 77:2 child welfare (n=86), 25% were probation/juvenile justice workers (n=46), 14% community-based workers (n=25), and 12% (n=22) selected other and specified that they worked in legal firms, legal services in child welfare, governmental organizations, state agencies, education, and consultants for child-welfare organizations. Phase one individuals were invited to provide contact information with regards to being interviewed. The eleven interviewees worked in California providing services for children. A little over half identified as White or Caucasian (n=6; 55%), with the rest of the interviewees identifying as African American or Black (n=2; 18%), Native American (n=2; 18%), or Hispanic/Latino (n=2; 18%).43 Interviewees ranged in their educational experience, having earned a high school diploma (n=3; 27%), Bachelor’s degree (n=3; 27%), Master’s degree (n=4; 36%), or a Doctorate (n=1; 9%). The majority of participants worked with a government agency such as Child Protective Services or Social Services (n=6; 55%), Probation (n=1; 9%), school settings (n=1; 9%), or nonprofit organizations (n=3; 27%). The interviewees ranged in years of working with children, from as little as a half a year to twenty-two years of experience, but overall were mostly knowledgeable, with participants averaging nine years of experience.44 Additionally, one interviewee identified as a survivor of human trafficking. In stage two, 884 individuals participated, and 500 also completed surveys after the training. In the pre-survey, 779 of the participants reported their role in child trafficking prevention: 43% worked in child welfare, 23% worked in a community-based organization, 6% were in probation or Juvenile Justice, and 28% were in other sectors. Of the participants, 36% reported that they had worked with labor trafficked children, while 46% said that they had not worked with labor trafficked children. Of the respondents who said “no,” more than half (58%) indicated that they were likely to “work with children who experienced coercion or control by another person for their labor,” and nearly two-thirds (60%) had worked with children who “worked for pay.” 43. One participant identified as Native American and Latina. 44. One participant chose not to disclose how long they worked at their agency. 4.FUKUSHIMA.MAN.FIN (1) (DO NOT DELETE) 7/7/2024 8:12 PM 2024 SEEING RACE & SEXUALITY 295 Among those who said “no” to working with children who were trafficked, half were likely to work with children who were “forced to cultivate, sell, and/or transport drugs” (50%). Even though these individuals had indicated that they had not worked with children who experienced labor trafficking, all of these things are consistent with labor trafficking.45 III. FINDINGS: HYPER-ATTENTION TO SEXUAL ECONOMIES A. Results This study highlights how forcing children to labor in economies beyond sexual economies continues to be confounding for responders. In 2019, survey respondents painted an important picture about children forced into labor in California. During phase one of the study, nearly half of the respondents worked with children who worked for pay (n=93), illuminating the reality that child welfare workers are, in fact, working with children who labor. Additionally, 25% worked with children who experienced forced labor (n=47). For child welfare workers supporting children identified as labor trafficked, they estimated working with a range of children experiencing exploitation, with the caseloads varying from 1 to 100 children over a three-year period (2016 to 2019). Nearly half of the participants worked with children who had been defrauded about the terms of their employment—a form of trafficking (n=87; 47%). Another form of trafficking that intersects with criminalized activities occurs when children are forced to cultivate, sell, and/or transport drugs—40% of respondents worked with children who were forced to participate in such economies (n=74). What was also notable is that 26% did not know if they worked with children who experienced being labor trafficked (n=49), conveying the need for ongoing education. And even more surprising, of the 26% of respondents who said they did not work with children who were forced to labor, nearly half (45%) said they were likely to work with children who experienced being coerced or controlled 45. See supra Introduction. 4.FUKUSHIMA.MAN.FIN (1) (DO NOT DELETE) 7/7/2024 8:12 PM 296 ARKANSAS LAW REVIEW Vol. 77:2 for their labor (n=22), which is a form of forced labor. Overall, it was found that child labor trafficking is occurring, yet there continues to be a misunderstanding about what constitutes labor trafficking. Interviews illuminate a more complex story regarding what child welfare responders perceive as trafficking and how current mechanisms of identification and data collection continue to create challenges for child welfare responders. Receiving training about labor trafficking improved self-perception of responding to children labor trafficked. After receiving a training about labor trafficking, 500 participants were surveyed, and 435 responded to an assessment of their confidence regarding certain skills relevant to child labor trafficking. Of these 435, almost all indicated that as a result of the training they were able to identify labor trafficking “red flags” (97%), knew how to report child labor trafficking (96%), and were able to identify services for labor trafficked children (95%). What remains to be seen is whether this knowledge will lead to improved human trafficking identification in the long term. Lack of training on human trafficking, including all forms of economies and labor, may further misperceptions of what counts as child trafficking. There continues to be a perception that trafficking is equivalent with sexual-based economies (street-based sexual economies, pornography, and exotic dancing to name a few). In contrast, other forms of commercial labor are commonly described as “hidden” or “invisible” and even, not as severe. As conveyed by an interviewee: [It is] easier to identify [sex trafficking] than labor trafficking because you can see sex trafficking happening right on the streets versus labor trafficking that’s hidden behind doors. When you look at labor trafficking in the industries like hospitality, and in your own personal home of domestic servitude, and all of that, that’s behind doors versus sex trafficking it’s out on the streets. So, I don’t know if that’s indicating or to say [it is] easier to identify.46 Another part of the invisibility of child labor trafficking is the misperception that child labor trafficking is less dangerous than trafficking into sexual economies. The normalization of 46. Interview with Child Services Department Analyst (on file with author). 4.FUKUSHIMA.MAN.FIN (1) (DO NOT DELETE) 7/7/2024 8:12 PM 2024 SEEING RACE & SEXUALITY 297 laboring Black, Brown, and Native bodies is bound to a legacy of slavery in the United States. In contrast to sexual exploitation, child labor trafficking is misperceived as not as traumatic. As described by a supervisor of child social workers, I do not believe that [child welfare workers] intentionally do not take the [child labor trafficked] minor seriously. I think that because we look at physical abuse, sexual abuse, and neglect as such high indicators, the labor trafficking might be something that is not viewed as needing as much safety intervention.47 Despite child labor comprising of children working in hazardous conditions that can be deadly, the ongoing misperception of labor trafficking is that it is not dangerous. But who is labor trafficking not perceived of as dangerous for? It is here that the understanding of Black and Brown bodies that labor cannot be delinked from the endeavors to rescue a particular racial subject of human trafficking: white innocence. B. Protecting White Innocence The focus on trafficking into sexual economies may be historically traced to legal responses to human trafficking in the United States.48 In 1910, the “white slave trade panic” sustained by the passage of the Mann Act, also known as the White-Slave Traffic Act, reified a particular type of racialized sexuality that was to be protected: white innocence.49 Jessica Pliley historicizes the history of white slavery narratives as celebrating a “racialized victim as white.”50 As a result, “[p]rotecting girls and women from the threat of sexual trafficking often legitimates and masks the increased policing and criminalization of consensual domestic sex work and regulates sexuality and gender.”51 This furthers the regulation and control of sexuality and “white innocence.” 47. Interview with Supervisor of Child Social Workers (on file with author). 48. See, e.g., FUKUSHIMA supra note 12, at 117-21. 49. JO DOEZEMA, SEX SLAVES AND DISCOURSE MASTERS 84 (2010). 50. JESSICA R. PLILEY, POLICING SEXUALITY: THE MANN ACT AND THE MAKING OF THE FBI 21 (2014). 51. ERICA R. MEINERS, FOR THE CHILDREN? PROTECTING INNOCENCE IN A CARCERAL STATE 66 (2016) (citations omitted); see also Gretchen Soderlund, Running from 4.FUKUSHIMA.MAN.FIN (1) (DO NOT DELETE) 7/7/2024 8:12 PM 298 ARKANSAS LAW REVIEW Vol. 77:2 Policies such as the Mann Act contribute to differential treatment of Black and Brown people in a legal context. Black, Latina/o, and Native youth, unlike their white counterparts, are disproportionately impacted by the justice system and more likely to be transferred to adult courts.52 The relegation of human trafficking to criminal status has solidified carceral responses that are referred to as “carceral protectionism,”53 “carceral politics,”54 and even, carceral feminisms, with regards to trafficking and sexualized industries. There is a tension in anti-trafficking response. Organizations like QAnon, a high-profile public example, recirculated human trafficking myths about child trafficking as tied to underground sex rings during the Twenty-First Century, which shows that the historic “white panic” has contemporary currency.55 The differing perceptions of child abuse in sexual economies and other laboring economies are codified in the United States through the Trafficking Victims Protection Act, where federal legislation on human trafficking automatically recognizes some children as victims regardless of consent (i.e., trafficking into sexual economies).56 For the child who experiences trafficking into sexual economies, force, fraud, or coercion do not have to be present for a case to be considered human trafficking.57 The assumption is that a child cannot consent to their own exploitation. Contrasting the legal definitions of trafficking into sexual economies, children who are compelled into other non-sexual industries are required to show force, fraud, or coercion for the Rescuers: New U.S. Crusades Against Sex Trafficking and the Rhetoric of Abolition, NWSA J., Fall 2005, at 64, 79-82 (explaining the relationship between anti-sex trafficking responses and the reinforcement of sex as a procreative tool, thus casting sex workers as immoral). 52. See MEINERS supra note 50, at 44. 53. See Jennifer Lynne Musto, Carceral Protectionism and Multi-Professional Anti-Trafficking Human Rights Work in the Netherlands, 12 INT’L FEMINIST J. POL. 381, 385 (2010) (emphasis omitted). 54. See Elizabeth Bernstein, Carceral Politics as Gender Justice? The ‘Traffic in Women’ and Neoliberal Circuits of Crime, Sex and Rights, 41 THEORY & SOC’Y 233, 236 (2012). 55. See Bond Benton & Daniela Peterka-Benton, Truth as a Victim: The Challenge of Anti-Trafficking Education in the Age of Q, ANTI-TRAFFICKING REV., Sept. 2021, at 113, 113-14. 56. 22 U.S.C. § 7102(11)(A) (2021). 57. 22 U.S.C. § 7102(11)(A). 4.FUKUSHIMA.MAN.FIN (1) (DO NOT DELETE) 7/7/2024 8:12 PM 2024 SEEING RACE & SEXUALITY 299 a labor violation to be considered human trafficking.58 There is a perception that children forced to sell drugs, smuggle people, participate in illicit economies, or even in formalized industries (a form of labor trafficking) are “choosing” to participate in exploitive economies. As described by a child welfare manager: There [have] been so many initiatives pushed to help our sex trafficking victims that that [sic] has put us in a place where we have to have protocols, but not for labor trafficking. . . . We focus on our female victims and the sex trafficking, but a lot of our young men, our young boys, they’re asked to do the drugs and the guns for the gang members. And we never thought of that as labor trafficking, we just say, “Well, they’ve hooked up with these gang members and they’re using them.”59 The differing responses to child criminality may be traced to legal responses to child welfare in the late 1800s. The Progressive Era viewed Black youth through a “punitive lens,” where such children were placed in adult facilities for the purpose of punishment.60 By contrast, white youth, and in particular, white girls, were treated with the assumption of embodying purity and piety.61 Because of this notion of white innocence, there is an ongoing misperception that trafficked youth are white children, in particular, children trafficked into sexual economies. This misperception, tied with the institutional punishing of young Black and Brown bodies, normalizes a legal response to labor trafficking that prioritizes policy responses with regard to sexual economies while punishing trafficking into other economies, like drug economies. However, it is important to note that this notion of “white innocence” was incredibly restrictive as well. The policing of sexuality, as legally rooted in the Mann Act, allowed for the acceptance of normative sexuality.62 In particular, queer people and the working poor have historically been deemed as falling 58. 22 U.S.C. § 7102(11)(B). 59. Interview with Child Welfare Manager (on file with author). 60. NISHAUN T. BATTLE, BLACK GIRLHOOD, PUNISHMENT, AND RESISTANCE 2 (2020). 61. Id. 62. See generally DAVID J. LANGUM, CROSSING OVER THE LINE: LEGISLATING MORALITY AND THE MANN ACT (1994) (identifying specifics of this phenomenon). 4.FUKUSHIMA.MAN.FIN (1) (DO NOT DELETE) 7/7/2024 8:12 PM 300 ARKANSAS LAW REVIEW Vol. 77:2 outside of protections. Queer sexualities have been frequent targets of law enforcement due to, for example, “[c]ontrolling narratives of ‘sexually degraded predators’ casting gay men and transgender women as highly sexualized beings possessing insatiable sexual appetites.”63 Largely because of this targeting and rejection, queer youth are overrepresented in survival economies, particularly sex economies.64 People with disabilities are also especially prone to trafficking for similar reasons65: non-normative bodies create more opportunities for people to exploit disabled people’s needs in order to trap them in forced labor and sexual economies.66 As such, the notion of white innocence serves to uplift a normative viewpoint of a particular type of citizenry that is to be protected—those who can adhere to normative notions of white “innocence” predicated on normative sexualities that are also class-based. Because the fractured legal response to human trafficking originates from a racialized conceptualization of labor, it misconstrues the victims of labor trafficking. As conveyed by a case manager interviewee, labor trafficked youth “are not white” and “the ones who are targeted for trafficking are not white. And what nobody wants to address and discuss is that they’re not white.” The historically entrenched tendency to view Black bodies through a lens of punitive labor power, and the simultaneous urge to protect white innocence, impacts responses to labor trafficked youth by rendering non-white trafficked children invisible to a community, political, and social response. 63. JOEY L. MOGUL ET AL., QUEER (IN)JUSTICE: THE CRIMINALIZATION OF LGBT PEOPLE IN THE UNITED STATES 53 (2011). 64. For the prevalence of homosexual men and transgender individuals in survival sex work, see N. Eugene Walls & Stephanie Bell, Correlates of Engaging in Survival Sex Among Homeless Youth and Young Adults, 48 J. SEX RSCH. 423, 424-25 (2011). For the overrepresentation of queer youth in human trafficking in general, and the importance of identifying queer youth in particular as victims of human trafficking, see Jordan Greenbaum, Child Labor and Sex Trafficking, 42 PEDIATRICS IN REV. 639, 641 (2021). 65. People with disabilities have a significant historical connection to the regulation of sexuality, especially considering that the Mann Act came at the heels of the Social Darwinist movement in the United States, and was, in fact, partially derived from principles of social hygiene. See LANGUM, supra note 61, at 23. 66. See Caroline Jagoe et al., Disability and the Risk of Vulnerability to Human Trafficking: An Analysis of Case Law, J. HUM. TRAFFICKING, Aug. 19, 2022, at 2 (discussing the increased risk disabled people face concerning both labor and sex trafficking); infra Section III.C. (analyzing disability and diagnoses in trafficking victim identification). 4.FUKUSHIMA.MAN.FIN (1) (DO NOT DELETE) 7/7/2024 8:12 PM 2024 SEEING RACE & SEXUALITY 301 C. Misidentifying Traumatized Children of Color In addition to the invisibility of child labor trafficking, not only are children labor trafficked unseen, but when engaging with systems they may be “misidentified.” For example, an interviewee described the racialized treatment of trafficked youth as having behavioral disorders, despite the common understandings of human trafficking as furthering trauma and trauma disorders, thereby requiring trauma-informed approaches.67 Children of color are commonly diagnosed with deficit disorders, which mislabel them as having behavioral disorders like Oppositional Defiant Disorder (“ODD”), which, in effect, impacts their care.68 This places them within a broader context where people of color are diagnosed differently from white people, in ways that are often informed by cultural and racial prejudices and preconceptions.69 Children diagnosed with ODD are oftentimes perceived as hostile, uncooperative, irritable, excessively emotional and aggressive, and having tendencies to engage in negative behaviors, such as angry outbursts, fights, or rule violations, to name some examples.70 However, each of these behaviors may also be a sign that the child has difficulties regulating their emotions and may have a variety of reasons for having these difficulties, including being trafficked. As described by a case manager in a nonprofit: As far as, like, your mental health is concerned, right, if you have been severely traumatized, you’re going to have some, sort of, reaction. Boys tend to be more angry, and they also 67. See E. K. Hopper & L. D. Gonzales, A Comparison of Psychological Symptoms in Survivors of Sex and Labor Trafficking, 44 BEHAV. MED. 177, 187 (2018) (revealing the necessity of trauma-informed care); Sarah K. Ladd & Laurel Neufeld Weaver, Moving Forward: Collaborative Accompaniment of Human Trafficking Survivors by Using Trauma-Informed Practices, 4 J. HUM. TRAFFICKING 191, 197, 207-08 (2018). 68. Megan Anna Neff, Is it ADHD or ODD? How Racial Bias Impacts Diagnosis, NEURODIVERGENT INSIGHTS, [https://perma.cc/MR3A-YWZD] (last visited Feb. 17, 2024). 69. See Jonathan M. Metzl, Race and Mental Health, in HEALTH HUMANITIES READER 261, 261 (Therese Jones et al. eds., 2014) (describing the relationship between race and weaponized diagnoses, particularly diagnoses of stigma, such as schizophrenia). 70. Monica Cavanagh et al., Oppositional Defiant Disorder Is Better Conceptualized as a Disorder of Emotional Regulation, 21 J. ATTENTION DISORDERS 381, 384 (2017). 4.FUKUSHIMA.MAN.FIN (1) (DO NOT DELETE) 7/7/2024 8:12 PM 302 ARKANSAS LAW REVIEW Vol. 77:2 tend to be labeled with Oppositional Defiant Disorder. And I will say that that’s more common for Black and brown boys. White boys get labeled with PTSD [Post-Traumatic Stress Disorder] and ADD [Attention Deficit Disorder]. So that’s a significant difference. That same, or our Black and brown girls also get Oppositional Defiance [sic] Disorder, they get a bunch of stuff. They get a lot more diagnoses. . . . They get medication thrown at them a lot. So, for mental health, emotional health, there’s definitely abandonment issues, which manifests into a bunch of other behaviors, right.71 Racialized diagnoses such as ODD and the subsequent perceptions of diagnosed children of color as violent reveal institutional differential treatment that proliferates discriminatory associations of people of color with disability, which have historically served to justify violence against Black and Brown people.72 Meanwhile, the racialized response to Black and Brown children with behavioral disorders impacts treatment, response, and deprioritizes a trauma-informed recognition of children labor trafficked. D. The Racial Logics of Immigration The racializing of labor migrants has meant that there are cultural perceptions of who is to be protected and who is not.73 This sustains the school-to-prison pipeline that some migrant laboring youth experience by being criminalized.74 For Latino/as, their racialization is tied to the perception that they will be pipelined into menial labor.75 As a manager of department of social services stated: 71. Interview with Nonprofit Organization Case Manager (on file with author). 72. See Nirmala Erevelles & Andrea Minear, Unspeakable Offenses: Untangling Race and Disability in Discourses of Intersectionality, 4 J. LITERARY & CULTURAL DISABILITY STUD. 127, 128-32 (2010) (detailing instances of discrimination against people of color with regards to their race and disability status). 73. See generally FUKUSHIMA, supra note 12. 74. See Elena Shih, The Trafficking Deportation Pipeline: Asian Body Work and the Auxiliary Policing of Racialized Poverty, FEMINIST FORMATIONS, Spring 2021, at 56, 57, 61, 68. 75. See Marta Maria Maldonado, ‘It Is Their Nature to Do Menial Labour’: The Racialization of ‘Latino/a Workers’ by Agricultural Employers, 32 ETHNIC & RACIAL STUD. 1017, 1017-18 (2009). 4.FUKUSHIMA.MAN.FIN (1) (DO NOT DELETE) 7/7/2024 8:12 PM 2024 SEEING RACE & SEXUALITY 303 We have children who are forced to stay home to take care of their siblings because their parents have to work. And I don’t know if this [is] accurate or off, but I think at least in my history with child welfare, there has been a little bit of acceptance, like oh well that’s because they’re from Mexico and culturally that’s what they do. . . . It’s this fine line between a cultural practice due to poverty versus being forced to work without pay.76 There are no safe harbor laws that unilaterally protect children who are exploited in other laboring industries and are criminalized, unlike children trafficked into sexual economies. Regardless of the conditions, from poverty and neglect to in-access to legal work, children labor trafficked must still prove that force, fraud, or coercion occurred.77 Migrants who participate in illicit economies are vulnerable to being criminalized, where this criminality for the immigrant laborer can have dire consequences such as deportation.78 For the child forced to labor in illicit economies of drug sales, when they are illegible as victims, they continue to be viewed by the United States as deportable. Recognizing immigrants are diverse, the focus on Latino/as has much to do with the United States’ relationships with countries south of the border, a racial perception of immigration, and population growth where Latino/as are among the fastest growing minority groups, with one-third of the Latino/a population comprising of foreign-born individuals.79 As a case manager of a nonprofit stated, I think some of the barriers that we see right now is [sic] definitely—and this is outside the child welfare system—is [sic] our political environment with our own law enforcement. . . . There’s a lot of Latino population. . . . But it’s a population [where] labor trafficking is underreported, because they don’t want to be taken away from their families. They’re here, they’re afraid that if they report it to 76. Interview with Department of Social Services Manager (on file with author). 77. Fact Sheet: Labor Trafficking, DEP’T OF HEALTH & HUM. SERVS., [https://perma.cc/NP5X-PDX2] (last visited Feb. 17, 2024). 78. See, e.g., Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, div. C, tit. III, 110 Stat. 3009-546, 3009-575 (codified as amended in scattered sections of 8 U.S.C.). 79. Cary Funk & Mark Hugo Lopez, A Brief Statistical Portrait of U.S. Hispanics, PEW RSCH. CTR. (June 14, 2022), [https://perma.cc/T9CX-9CER]. 4.FUKUSHIMA.MAN.FIN (1) (DO NOT DELETE) 7/7/2024 8:12 PM 304 ARKANSAS LAW REVIEW Vol. 77:2 law enforcement, they’re going to be taken away from their family and put back into their country where their parents are from.80 Additionally, anti-immigrant sentiment has led some migrant laboring communities to fear law enforcement. The outcome of deporting children was also reported by community organizers. As described by a director of a nonprofit: Young people are often recruited through neighborhoods—generally, low socioeconomic neighborhoods—or kids who are struggling. . . . I realized that they were being trafficked but they always used the term, “my boss,” is here with me in this neighborhood and we are selling magazines. . . . [T]hese people who have recruited them, take them into cities where they don’t know anyone, often in a completely different state. And they feed them fast food and put them in small hotel rooms where they share multiple young people in a room. And these young people end up not profiting at all from the sales of the magazines. And then, the other form of trafficking that we’ve heard are actually young people who are brought in through traffickers from other countries. And these are young people who are asked—they assume they’re coming here to work and they come here to work and then, they recognize that when they get here, that it’s not the type of work that they thought. But the traffickers will force them to sell drugs in the schools or do things for them that they normally wouldn’t do. . . . [I]nevitably, they’ll get caught selling drugs in school. They get in trouble, they’re sent to ICE, ICE sends them back to their country.81 For immigrant children who are misidentified or not identified as experiencing traumatic events like trafficking, the consequences are severe, leading to, in worst case scenarios, the possibility of deportation. About half of immigrant Latino/as fear someone they know will be deported.82 80. Interview with Nonprofit Organization Case Manager (on file with author). 81. Interview with Nonprofit Organization Director (on file with author). 82. Mohamad Moslimani, Around Four-in-Ten Latinos in U.S. Worry That They or Someone Close to Them Could Be Deported, PEW RSCH. CTR. (Feb. 14, 2022), [https://perma.cc/VXD3-F7BQ]. 4.FUKUSHIMA.MAN.FIN (1) (DO NOT DELETE) 7/7/2024 8:12 PM 2024 SEEING RACE & SEXUALITY 305 E. Disclosure and Intersectionality Human trafficking is tracked through a range of mechanisms including assessments, intakes, data collection for grant monitors, and other forms of documenting “this is trafficking.” Despite the robust datafication of child sex trafficking, interviewees described how their organizations’ interview tools and data collection did not have questions that allowed for querying and identifying commercial labor trafficking. Many were still using the Commercial Sexual Exploitation-Identification Tool that is explicitly for identifying child sexual exploitation.83 Others were in the process of creating new tools to identify child labor trafficking or had, in the past year, revised their assessment tools—illuminating unevenness and differing practices across the state. As a supervisor of Child Protective Services conveyed, Even the structured decision-making tools that we have related to like exploitation are much more, by definition, are much more about sex trafficking than labor. . . . And that’s been part of our limitation even as a department that we still want to investigate and look into labor trafficking, but we have some limitations because we don’t really have definitions and parameters of exploitation that include that.84 These differing practices not only make identification of trafficked children more difficult, but they also highlight structural abandonment. Moreover, since datafication and tracking who and what counts as human trafficking is central to mechanisms of governance, these inadequate identification tools create inequities that are reflected back in deficient welfare responses to child labor trafficking. Identifying human trafficking is dependent on disclosures. Ebony Coletu’s concept is useful here, where “biographic mediation” is used to describe institutional demands for personal narrative as means to determine the type of resources people 83. Commercial Sexual Exploitation–Identification Tool (CSE-IT), WESTCOAST CHILD.’S CLINIC, [https://perma.cc/PQE9-X9VZ] (last visited Feb. 17, 2024). 84. Interview with Child Protective Services Supervisor (on file with author). 4.FUKUSHIMA.MAN.FIN (1) (DO NOT DELETE) 7/7/2024 8:12 PM 306 ARKANSAS LAW REVIEW Vol. 77:2 receive.85 For survivors of human trafficking, disclosures about abuse of human trafficking leads to resources—for example, mental health services, advocacy, housing, job access or training, monetary benefits, health benefits, and legal relief. Interviewees in this study described their existing interview and screening processes as robust, however, limited to questions regarding sexual exploitation. As such, labor trafficked youth are not being identified, and consequently, are ineligible for resources. To address the absence of formalized tools of assessment for labor trafficking, interviewees described fostering relationships that allowed for a slow form of biographic disclosure, where information about labor trafficking came out over time. Others described the facilitation of “soft assessments” that allow the child to answer questions indirectly about difficult experiences, like experiencing labor trafficking. While some of the interviewees were unfamiliar with their state-tracking system for human trafficking as including labor trafficking, some regions in California include in their data tracking system a “special project code,” to include labor trafficking.86 These systems were not without their limitations. As conveyed by an analyst with Children’s Services Department, “We could track the numbers all we want with the system, but we really do lose the story when we put our information into the system.” The past two years’ anti-trafficking response illuminated shifts in identifying trafficking. As conveyed by a Mental Health provider in school settings, “We know CSEC is an issue, it’s something that we can start addressing and there’s funds for. Whereas there hadn’t been funds to help support [child labor trafficking] before.” The dynamics that persist are a lack of resources to identify labor trafficked children, which consequently furthers ongoing invisibility and a lack of response to children who work and experience exploitation. 85. Ebony E. A. Coletu, Funding the American Dream: On the Biographic Mediation of Aid and Institutional Change in Horatio Alger Scholarship Narratives, 33 AUTO/BIOGRAPHY STUD. 83 (2018). 86. See County of Riverside Department of Public Social Services Commercially Sexually Exploited Children (CSEC): Interagency Protocol Agreement, RIVERSIDE CNTY. DEP’T OF PUB. SOC. SERVS. (Oct. 1, 2015), [https://perma.cc/CA63-V9D9]. 4.FUKUSHIMA.MAN.FIN (1) (DO NOT DELETE) 7/7/2024 8:12 PM 2024 SEEING RACE & SEXUALITY 307 Here we pause to convey that disclosures are not a simple response to abuse. Children who are asked questions about experiencing labor exploitation and the process of disclosure itself can also be violent—in particular for children who are reporting to authorities who have perceived them as historically defiant or fear deportation. As a child is asked to re-narrate their history of abuse over and over again, it impacts their ability to connect with the very services intended to support them. One nonprofit case manager described the challenges of working with what they referred to as “the system” which in their words, comprised of Child Protective Services, Dependency Courts, Delinquency Courts, and the District Attorney’s Office. Telling somebody your story over, and over, and over again . . . it’s re-traumatizing. And then nothing happens so that’s why they shut down. So it’s basically a system that re-traumatizes them, blames them, says, “The reason why we wouldn’t help is because you ran the whole time.” The reason why you didn’t get your education is because you ran away the whole time. Those are the types of things that they hear; that I hear when I’m with them . . . it’s everybody, it’s systemic.87 Additionally, repeatedly telling one’s experiences with abuse to access resources places the burden on victims. Therefore, the conundrum in current responses to child labor trafficking in the child welfare system is that in order to be seen as a victim of trafficking and access resources, a disclosure about abuse must occur, but not all children who work are willing to disclose their abuse, and not all responders are trained to ask the right questions to affirm that an experience is labor trafficking. Both disclosure and inadequate identification tools combine to create a system that is hostile to those whose experiences lie at the intersection of marginalized racial, sexual, and gender categories. 87. Interview with Nonprofit Organization Case Manager (on file with author). 4.FUKUSHIMA.MAN.FIN (1) (DO NOT DELETE) 7/7/2024 8:12 PM 308 ARKANSAS LAW REVIEW Vol. 77:2 F. Further Invisibility of Marginalized Children During Global Pandemic An ongoing challenge in responding to child labor trafficking in the United States is the desire to identify when human trafficking is occurring; however, this study occurred before and during the pandemic, reflecting the challenges of institutional response during a global crisis. The global pandemic limited the circumstances in which the institutional response for supporting families and children in general could be administered. As conveyed by multiple participants, schools were an important place for identifying trafficked children. The institutional response to child maltreatment declined with financial loss and other pandemic stressors, leading to an increase in child abuse during the pandemic.88 During the pandemic, white youth were more likely to be removed from an abusive home, in contrast to their Black counterparts.89 Stay-at-home or safer-at-home orders impacted community organization and child welfare response to children experiencing maltreatment in California.90 As described by a juvenile probation officer, the ability to identify youth in systems and institutions was reduced when public health orders led to school closures and stay-at-home orders. “Now with COVID, these kids aren’t in school anymore. So, we don’t have that extra ability to have everybody in the community keeping an eye on these kids I guess if that makes sense.” The probation officer illuminated how schools are a means to document child abuse and vulnerability, where educational structures like schools serve as an important place for 88. See Kelly Whaling et al., Reduced Child Maltreatment Prevention Service Case Openings During COVID-19 2 (May 23, 2020) (unpublished manuscript) (available at https://perma.cc/LV86-46CB) (detailing the impact of COVID-19 on child maltreatment in New York City, as well as the city’s response); Samantha M. Brown et al., Stress and Parenting During the Global COVID-19 Pandemic, CHILD ABUSE & NEGLECT, Dec. 2020, at 1, 1 (showing how pandemic stresses fostered the conditions for parental neglect and child maltreatment). 89. See Erica D. Musser et al., Child Maltreatment in the Time of COVID-19: Changes in the Florida Foster Care System Surrounding the COVID-19 Safer-at-Home Order, CHILD ABUSE & NEGLECT, June 2021, at 1, 1. 90. See Carmit Katz & Barbara Fallon, Protecting Children from Maltreatment During COVID-19: Struggling to See Children and Their Families Through the Lockdowns, CHILD ABUSE & NEGLECT, June 2021, at 1, 1-2. 4.FUKUSHIMA.MAN.FIN (1) (DO NOT DELETE) 7/7/2024 8:12 PM 2024 SEEING RACE & SEXUALITY 309 identifying child abuse and monitoring behaviors. As described by a mental health provider working in school settings, the global pandemic impacted normal structures of governance, surveillance, and identification. Well, the obvious one right now, specifically for our schools, because typically that’s where we might identify, it might be the first-responder-type situation to identify a potential trafficking situation. But because we are in this pandemic and unable to actually visually see our kids most of the time—or kids are just not showing up online at all—how do we reach those kids, how do we identify them? It’s so frustrating and sad at the same time.91 By April 2021, most schools offered online or distanced learning.92 The pandemic exposed challenges for responders to address child labor trafficking when remote connections became the norm. A child welfare manager stated, “It has been harder. It has been challenging because we can’t be out there seeing and assessing. We’re doing assessments on Zoom . . . or as [a] FaceTime, but it doesn’t really allow us to see what’s going on in the home.”93 Therefore, the global pandemic also highlighted another norm in anti-trafficking identification: the use of surveillance through in-person home visits and school connections to identify trafficked children. Poverty governance fosters an environment where civil institutions such as child welfare, police, Immigration Customs Enforcement, and public schooling are entrusted to identify child trafficking victims and enact trafficking policies. CONCLUSION As new laws are introduced to address human trafficking, it is essential that the racial and sexualized logic of who is to be protected historically and whose bodies are relegated as exploitable at present, are part of the sociolegal response. In 2022, California Assembly member Eloise 91. Interview with Mental Health Provider (on file with author). 92. U.S. Education in the Time of COVID, NAT’L CTR. FOR EDUC. STAT., [https://perma.cc/9B6A-YAET] (last visited Feb. 20, 2024). 93. Interview with Child Welfare Manager (on file with author). 4.FUKUSHIMA.MAN.FIN (1) (DO NOT DELETE) 7/7/2024 8:12 PM 310 ARKANSAS LAW REVIEW Vol. 77:2 Gómez Reyes introduced Assembly Bill 2628, Dependency: victims of human trafficking.94 For children who were labor trafficked, there were no protections available when a parent or guardian had participated in the labor trafficking of their dependent child (unlike what is afforded to children who are sexually exploited). However, the history of U.S. separation policies cannot be delinked from current systems of child welfare response to child separation from their families. On the one hand, there is a need to support children who need to leave exploitive conditions. On the other hand, does the racist history of child separation impacting Native children haunt current anti-trafficking response and the child welfare system? Opponents of the law continue to deprioritize responding to child labor exploitation. As described by the County Welfare Directors Association of California opposing Assembly Bill 2628, In his veto message on AB 2035, Governor Brown indicated that he believed the bill was premature in expanding [Welfare & Institutions Code] 300 to include labor trafficking. We concurred at the time and continue to believe that while the child welfare system continues to build services and supports for these children, it is premature to add labor trafficking to the definition of abuse and neglect.95 Although U.S. federal anti-trafficking laws have been in existence for twenty-two years, child labor trafficking continues to be debated as a form of abuse and neglect. The culture of legal response must not only contend with discussing labor, but the racial and sexual underpinnings of whose bodies are expected to labor in low-wage and informal industries.96 There is a need for further training, community dialogues, and policy implementation that contends with how children experience forced labor and how current responses are tied to interlocking systems such as race, class, and sexuality. This is much needed to contend with how child welfare and legal 94. A.B. 2628, 2021-22 Leg., Reg. Sess. (Cal. 2022). 95. Dependency: Victims of Human Trafficking: Hearing on A.B. 2628 Before the Assemb. Comm. on Judiciary, 2021-22 Leg., Reg. Sess. (Cal. 2022). 96. See Annie Isabel Fukushima, Marie Sarita Gaytán & Leticia Alvarez Gutiérrez, Death World Economy: Race, Meat-Processing Plants, and COVID-19, EPC: POL. & SPACE, Oct. 25, 2023, at 1, 1. 4.FUKUSHIMA.MAN.FIN (1) (DO NOT DELETE) 7/7/2024 8:12 PM 2024 SEEING RACE & SEXUALITY 311 failures are due to the experiences children have with a “revolving door” of entering carceral systems, a consequence of disproportionate minority contact where communities of color are disproportionately coming into contact with juvenile justice systems that further the school-to-prison pipeline.97 A lens that contends with race and sexuality recognizes that it is not only the carceral responses to certain bodies, but also the expectation that certain bodies labor. As described by a medical social worker, not only are communities not talking about child labor trafficking, but this silence is tethered to how it is assumed that certain bodies are expected to work in low-wage and arduous labor. Labor trafficking? You know I think it’s something that we don’t talk about. Like let’s say when I was in school we talked about the industrial revolution and children working in factories and working on farms and we really don’t discuss labor trafficking of children. And even doing my own research, children make up a large amount of let’s say farm accidents, industrial accidents like for OSHA. You know so even in California let’s say we have a huge agricultural community, and a lot of children under the age of 18 make up a lot of the folks or children that are injured through industrial accidents or accidents on farms and so forth. I didn’t even know that until I looked into labor trafficking of children . . . it’s concerning because obviously that’s when we talk about agriculture in California it may be children that are undocumented and their parents are undocumented and so forth. So, it has so many layers.98 Recognizing the problems that persist, what would it look like to address child labor trafficking through labor rights, closing the wealth gap, and recognizing that the history of excluding some bodies as having experienced maltreatment is tied to racial and sexual governance? What would it look like to seriously consider how communities labor in exploitive conditions that also involve child laborers? Who counts as experiencing abuse is 97. See Jaya Davis & Jon R. Sorensen, Disproportionate Minority Confinement of Juveniles: A National Examination of Black-White Disparity in Placements, 1997–2006, 59 CRIME & DELINQUENCY 115, 115 (2013); see, e.g., VICTOR M. RIOS, PUNISHED: POLICING THE LIVES OF BLACK AND LATINO BOYS (2011). 98. Interview with Medical Social Worker (on file with author). 4.FUKUSHIMA.MAN.FIN (1) (DO NOT DELETE) 7/7/2024 8:12 PM 312 ARKANSAS LAW REVIEW Vol. 77:2 bound to a history of racialized sexualities—protecting white children’s innocence—where children of color and migrant communities continue to be seen as invisible in their conditions that are compounded by poverty, anti-immigration policies and practices, and nativism. A fundamental socio-legal shift with addressing child labor trafficking requires a contending with how race and sexuality are imbricated in the logics that perpetuate notions of “invisibility” and perceptions of why child labor trafficking is hidden. A recent case of a Subway franchise owner, John Michael Meza, made headline news when it was alleged he violated labor laws by employing children as young as fourteen years old to operate dangerous equipment, had children working hours not permitted by law, failed to pay his employees, and threatened his employees when they raised concerns about their legal rights.99 While not called trafficking, the use of threats is a form of coercion and reifies that while there is much to be concerned about illicit economies, formal industries also continue to perpetuate child labor violations in California. However, child labor violations are met with resistance, as seen in the recent claims regarding an Oakland Popeyes where employees went on strike after labor violations occurred when a thirteen-year-old girl who worked forty hours a week until midnight and on school nights.100 As some communities organize to respond to child labor violations, survivors of labor trafficking continue to be policed, fear the systems that should support them, and continue to have basic needs unmet. 99. First Amended Complaint at 1, Su v. Meza, No. 3:23-cv-01714-VC (N.D. Cal. 2023); Reid Maki, U.S. DOL News Release: Court Orders Operators of 14 Bay Area Subway Locations to Pay Employees Nearly $1M in Wages, Damages; Sell or Shut Down Their Businesses, CHILD LAB. COAL. (Sept. 29, 2023), [https://perma.cc/PZ6Q-L6TZ]. 100. Phil Mayer & Terisa Estacio, Oakland Popeyes Workers Strike, Claim Child Labor Violations, KRON4 (May 19, 2023, 11:08 PM), [https://perma.cc/KL23-SYJM]. 5.HEISE.MAN.FIN -- RECD 5-28-2024--HEISE FINAL EDITS (1) (DO NOT DELETE) 7/7/2024 8:15 PM HOW TO SITUATE HIGH SCHOOL STUDENT PART-TIME WORK TRENDS: AN [INCOMPLETE] EMPIRICAL GLANCE Michael Heise∗ INTRODUCTION Recent federal warnings about increases in child labor law violations1 coincide with various state efforts to dilute child labor protections.2 Problems incident to child labor abuses vary considerably in nature and magnitude and range from child labor trafficking and related exploitations to broader policy questions concerning legal guardrails demarking appropriate boundaries for lawful work performed by minors.3 Judicial recognition of the array of potential ills attributable to “premature and excessive child labor” for minors, their families, and society more generally includes Justice Oliver Wendell Holmes’ dissent in Hammer v. Dagenhart.4 As federal regulators increasingly sound alarms, many state-level efforts, by contrast, consider ways to make it easier for fourteen- and fifteen-year-olds to work, dilute restrictions on hazardous work, and roll back work hour limitations.5 Given the magnitude of the stakes involved, getting this balance right is of obvious importance. ∗ William G. McRoberts Professor in the Empirical Study of Law at Cornell Law School. E-mail: michael.heise@cornell.edu. Thanks to Dawn Chutkow for thoughtful edits on prior versions of this Article. 1. See Increases in Child Labor Violations, Young Workers’ Injuries Prompts Enhanced Outreach, Strong Enforcement by US Department of Labor, U.S. DEP’T. LAB. (July 29, 2022), [https://perma.cc/R3K4-QJRW] (last visited Mar. 4, 2024). 2. See, e.g., Jennifer Sherer & Nina Mast, Child Labor Laws Are Under Attack in States Across the Country, ECON. POL’Y INST. (Dec. 21, 2023), [https://perma.cc/JNV8-VAJ8]. 3. See, e.g., Annie B. Smith, Understanding Human Trafficking Laws and Liability, ARK. LAW., Summer 2021, at 30, 31. 4. Hammer v. Dagenhart, 247 U.S. 251, 280 (1918) (Holmes, J., dissenting). 5. See, e.g., Sherer & Mast, supra note 2, at 6-7 (summarizing various recent state-level efforts). 5.HEISE.MAN.FIN -- RECD 5-28-2024--HEISE FINAL EDITS (1) (DO NOT DELETE) 7/7/2024 8:15 PM 314 ARKANSAS LAW REVIEW Vol. 77:2 How these two key broad concurrent trends—a growing number of federal warnings about child labor law violations and increasing state-level efforts to reduce child labor law protections—interact warrants attention, and, frankly, attention that spans beyond the pages of this (and any other) law review symposium. Public and scholarly attention is warranted as the intersection of these two trends raises the possibility that “[w]e have failed in our collective responsibility to these working youth, resulting in death, injury, disease, and blighted futures.”6 Assessing this possibility (and others) with necessary precision, however, requires, among other things, quality data that speak to the various outcomes attributable to legal minors’ (many of whom are full-time high school students) lawful part-time workforce participation. While other scholars and articles in this symposium issue engage with an array of larger, broader, and more complex topics, this Article’s scope, by contrast, is self-consciously narrow and focuses on one particular context. Specifically, this Article confines itself to the array of outcomes attributable to lawful part-time work performed by non-trafficked, full-time, U.S. high school students. Where data permit, student part-time work conducted incident to formal “school-to-work” or “co-op” programs is excluded. This Article’s admittedly narrow focus on high school students’ part-time work does not, however, render the policy stakes any less consequential. Indeed, the magnitude of this issue’s scale alone underscores its policy and legal importance. While precise estimates are notoriously elusive, in 2007, approximately six million sixteen- and seventeen-year-olds were employed in the United States.7 Similarly, as Table 1 (below) illustrates, between 1990 and 2021, the percentage of sixteen- to nineteen- year-olds who worked part-time while attending high 6. Seymour Moskowitz, Save the Children: The Legal Abandonment of American Youth in the Workplace, 43 AKRON L. REV. 107, 112 (2010). 7. Id. at 113. 5.HEISE.MAN.FIN -- RECD 5-28-2024--HEISE FINAL EDITS (1) (DO NOT DELETE) 7/7/2024 8:15 PM 2024 PART-TIME WORK TRENDS 315 school full-time ranged from a high of 31% (1998) to a low of 17% (2013 and 2014).8 While the policy stakes—as well as the potential scope and magnitude of potential concerns—may be clear, answers to many basic questions about part-time work’s implications for full-time high school students lack similar levels of clarity or precision. The pervasive opacity owes to, in substantial part, conceptual and methodological factors along with an overall paucity of helpful data. These important limitations notwithstanding, this Article sets out to develop two modest and separate—though related—claims. The first claim is that clear and reliable answers do not emerge for such basic policy questions as, for example, whether student part-time work during high school constitutes a penalty or, instead, confers rewards to students. One key factor fueling this uncertainty includes conceptual ambiguity regarding the appropriate frame of reference from which to assess basic questions in this policy space. Specifically, good-faith contestations persist about which of the various student outcomes (short-, medium-, or long-term) is the most salient. Moreover, even if it was clear whether part-time work constitutes a net positive or negative for students as a whole, from whatever frame of reference it remains unclear how these outcomes distribute across various sub-streams of students and over time. This Article’s second claim is methodological. Specifically, much of the existing research on the implications of part-time work on full-time students lacks a sufficiently developed and secure empirical footing. Data limitations as well as research design threats imposed by selection effects persistently emerge as meaningful challenges for much of the research in this area. The particular challenges posed by selection effects for this scholarly field flow from the product of nonexperimental observational studies’ domination in this research space and the reality that the distribution of high school students into sub-pools of those who engage in part-time work and those who do not is not random. 8. See infra Table 1; Veera Korhonen, Percentage of Teenagers (16-19) Who Are Enrolled in School and Working in the United States from 1985 to 2021, STATISTA (June 2, 2023), [https://perma.cc/J684-H6MA]. 5.HEISE.MAN.FIN -- RECD 5-28-2024--HEISE FINAL EDITS (1) (DO NOT DELETE) 7/7/2024 8:15 PM 316 ARKANSAS LAW REVIEW Vol. 77:2 Indeed, recent scholarship describes the selection effects challenge as “[o]ne of the greatest limitations prohibiting researchers from drawing firm causal conclusions” about the various impacts of part-time student work.9 To the extent that legal scholars and policymakers seek to inform or influence child labor law or policy, to do so without the benefit of some consensus on part-time work’s implications for high school students, some level of agreement on the most salient student outcomes, and a more secure, stable, and reliable empirical foundation invites peril. This Article’s organization proceeds as follows: Part I quickly and descriptively summarizes key longitudinal full-time high school student part-time employment trends. Part II engages with existing research on the effects of part-time work on various high school student outcomes and, in so doing, illustrates how a lack of a scholarly consensus on the most salient student outcome complicates—and obscures—potential policy implications from this research literature. Part III reviews the leading data sets in this policy space and illustrates how they fall short of supplying an adequate empirical footing necessary for helpful, reliable analyses of how part-time work intersects with an array of student outcomes. The conclusion emphasizes that what we do not yet know about the consequences of part-time work for full-time high school students, at least empirically, risks overwhelming what we do know. I. FULL-TIME HIGH SCHOOL STUDENTS’ PART-TIME WORK TRENDS While this Article emphasizes how research design and data limitations impede scholarly efforts to better understand the effects of part-time labor participation on full-time high school students, a few broad macro-level trends do emerge with some level of helpful clarity. For example, aggregate data presented in Table 1 illustrate how annual full-time high school students’ part-time labor participation rates have evolved over time. Notably, 9. See, e.g., Kathryn C. Monahan et al., Revisiting the Impact of Part-Time Work on Adolescent Adjustment: Distinguishing Between Selection and Socialization Using Propensity Score Matching, 82 CHILD DEV. 96, 96 (2011). 5.HEISE.MAN.FIN -- RECD 5-28-2024--HEISE FINAL EDITS (1) (DO NOT DELETE) 7/7/2024 8:15 PM 2024 PART-TIME WORK TRENDS 317 Table 1 indicates, despite a recent discernable post-COVID uptick, a net overall decline in the rate of full-time high school students working part-time during the school year (as a percentage of the universe of sixteen- to nineteen-year-old high school students) during the past two decades (of the three-decade panel). Equally notable is that while a decline in part-time student work rates over time is clear in Table 1, comparatively less clear, however, is how to best interpret this decline. On the one hand, for those who view part-time work by full-time high school students as a problem due to the costs that part-time work imposes on various student outcomes,10 Table 1 implies that the magnitude of the problem has abated marginally over the past two decades. On the other hand, those more partial toward part-time student work and view it as increasing students’ human capital may view this same decline in Table 1 with concern.11 While opponents of student part-time work typically emphasize its potentially deleterious consequences for various student outcomes, including high school academic achievement and post-secondary education prospects, proponents, in contrast, emphasize the various putative benefits to students flowing from work experience, including enhancing employability, earnings, and occupational standing partly through on-the-job training and skill development.12 At a more general level, proponents note that workforce experience may also help students develop a sense of responsibility, trustworthiness, positive work habits, and dependability.13 Contestations over how to best interpret the general decline in student part-time work rates implied by Table 1 parallel other interpretative contestations in this area. As a result, despite—or because of—persisting interpretative challenges, interest in the 10. See, e.g., Kusum Singh, Mido Chang & Sandra Dika, Effects of Part-Time Work on School Achievement During High School, 101 J. EDUC. RSCH. 12, 20-21 (2007) (finding negative effects). 11. See, e.g., Christopher J. Ruhm, Is High School Employment Consumption or Investment?, 15 J. OF LAB. ECON. 735, 738 (1997); see also JEYLAN T. MORTIMER, WORKING AND GROWING UP IN AMERICA (2003). 12. See Moskowitz, supra note 6, at 116. 13. Id.; see also Ruhm, supra note 11, at 738. 5.HEISE.MAN.FIN -- RECD 5-28-2024--HEISE FINAL EDITS (1) (DO NOT DELETE) 7/7/2024 8:15 PM 318 ARKANSAS LAW REVIEW Vol. 77:2 effects of part-time work on key outcomes for high school students endures for scholars and policymakers. Table 1: Percentage of Sixteen- to Nineteen- Year-Olds Enrolled in High School and Working Part-Time, 1990-202114 NOTES: Data relate to the labor force and enrollment status of persons ages sixteen through nineteen in the civilian noninstitutionalized population during an “average” week of the school year. The percentage represents an average based on responses to survey questions for the months that youth are usually in school (January through May and September through December). Results are based on nine months of data. Setting aside nettlesome and contested interpretative issues raised by the trend illustrated in Table 1, understanding how macroeconomic changes facilitate sixteen- to nineteen- year-olds’ participation in today’s part-time workforce warrants brief discussion. While high school students’ participation in part-time labor markets has varied over the decades, most scholars point to the “widespread shift from a manufacturing to a service economy” as an important factor contributing to high school students’ part-time labor market participation.15 Specifically, increases in retail trade and personal services jobs have helped fuel corresponding increases in minimum-wage, entry-level 14. Korhonen, supra note 8. 15. Rhoda V. Carr et al., Effects of High School Work Experience a Decade Later: Evidence from the National Longitudinal Survey, 69 SOCIO. EDUC. 66, 66 (1996). 5.HEISE.MAN.FIN -- RECD 5-28-2024--HEISE FINAL EDITS (1) (DO NOT DELETE) 7/7/2024 8:15 PM 2024 PART-TIME WORK TRENDS 319 positions that are especially amenable to high school students seeking part-time work. Although an increase in comparatively low-wage service economy employment opportunities facilitates high school students’ access to part-time work, the descriptive trend data in Table 1 provide, at best, an incomplete picture. For example, information in Table 1 does not speak to factors that may account for the current downward trend in full-time high school student participation in part-time labor markets despite concurrent structural economic shifts that facilitate student participation. Even if such explanations were clear, Table 1 also does not meaningfully contribute to normative assessments about what to infer from the recent overall net decline in part-time work by full-time students. Indeed, empirical scholarship exploring part-time work’s implications for full-time high school students remains contested. Results from some studies imply that student part-time employment during high school enhances a student’s future employment prospects and earnings potential through the development of work-related skills and forging contacts with employers.16 Moreover, the impact of early work experience on earnings may have increased given the concurrent rise in the “return to skill” employment in recent years.17 Results from other studies, however, suggest that part-time high school employment, certainly intensive part-time work, may harm a student’s later economic success.18 Potential harms to students’ economic future emerge if, for example, part-time work degrades a student’s academic performance (including high school graduation and college attendance rates), which, in turn, risks limiting rather than enhancing students’ future employment prospects.19 16. See, e.g., MORTIMER, supra note 11, at 120-21. 17. See, e.g., Gerald S. Oettinger, Does High School Employment Affect High School Academic Performance?, 53 INDUS. & LAB. RELS. REV. 136, 137 (1999). 18. Wendy Patton & Erica Smith, Part-Time Work of High School Students: Impact on Employability, Employment Outcomes and Career Development, 19 AUSTL. J. CAREER DEV. 54, 56-57 (2010). 19. Id.; see, e.g., Jeremy Staff et al., Explaining the Relationship Between Employment and Juvenile Delinquency, 48 CRIMINOLOGY 1101, 1102 (2010); see also Monahan et al., supra note 9, at 110. 5.HEISE.MAN.FIN -- RECD 5-28-2024--HEISE FINAL EDITS (1) (DO NOT DELETE) 7/7/2024 8:15 PM 320 ARKANSAS LAW REVIEW Vol. 77:2 This enduring scholarly contestation itself is unsurprising once one understands that part-time work during high school can plausibly confer both costs and benefits on students and that the composition of these costs and benefits likely varies over time horizons and across students. While a clear understanding of the effects of early work experience is certainly important in its own right, the stakes may now be higher due to the general decline in part-time high school employment during the first decade of the twenty-first century.20 II. EFFECTS OF PART-TIME WORK ON STUDENTS Although this Article’s initial focus on the persistent scholarly contestations over consequences to high school students attributable to part-time work is not a novel one, the policy importance of such a focus has not abated.21 It is important to note that the absence of scholarly clarity is not a function of a paucity of research. Indeed, the effects of high school employment, broadly defined, have been studied in earnest since the “late 1970s.”22 While much of the existing research tends to dwell on such student outcomes as grades, test scores, or school completion rates, research also assesses the implications of part-time work for other student outcomes including access to post-secondary education opportunities as well as initial full-time employment outcomes and wages. Finally, it is also important to recognize that an absence of a scholarly consensus on key outcomes attaching to students who engage in part-time employment has not dampened the emergence of various—and shifting—conventional wisdoms. These include, for example, the notion that permitting any form of part-time work for full-time high school students necessarily degrades a student’s academic performance or general engagement with high school in ways that limit a student’s future prospects.23 Indeed, if anything, an absence of quality data can 20. See Korhonen, supra note 8. 21. See, e.g., Ruhm, supra note 11, at 737. 22. Id. at 738. 23. See, e.g., Steven Greenhouse, Problems Seen for Teenagers Who Hold Jobs, N.Y. TIMES (Jan. 29, 2001), [https://perma.cc/ZFR4-MM3W]. 5.HEISE.MAN.FIN -- RECD 5-28-2024--HEISE FINAL EDITS (1) (DO NOT DELETE) 7/7/2024 8:15 PM 2024 PART-TIME WORK TRENDS 321 help fuel the emergence of various popular “conventional wisdoms” that too often assume the mantle of “truth.” A. Short-Term Outcomes Much of the empirical research on part-time work’s effect on full-time high school students dwells on various potential short-term outcomes, including student academic achievement. Notably, even a focus on discrete short-term consequences does little to generate greater clarity as the empirical literature remains largely unsettled and persistently contested on part-time work’s implication for student academic achievement.24 Aside from an understandable focus on formal student academic achievement, some scholars point to ways in which part-time work can also implicate other related short-term student outcomes, including high school attendance, effort, and overall school engagement.25 Although the research literature assessing part-time work’s various consequences has grown substantially in the past few decades, findings about the array of effects of work on the school lives of students, including how work affects academic achievement, remain inconsistent and contested.26 Amid general scholarly uncertainty about and an absence of any consensus on whether a student’s part-time employment improves or worsens the student’s performance in high school,27 a non-inconsequential slice of research implies that, on average, student part-time work imposes a “small to moderate” negative effect on a student’s high school grades and standardized test 24. Compare Singh, Chang & Dika, supra note 10 (finding negative effects), with MORTIMER, supra note 11 (finding either no or positive effects); see also Frank J. Barone, The Effects of Part-Time Employment on Academic Performance, 76 NASSP BULL. 67, 68-69 (1993). 25. See, e.g., Laurence Steinberg et al., Negative Impact of Part-Time Work on Adolescent Adjustment: Evidence from a Longitudinal Study, 29 DEV. PSYCH. 171, 178 (1993); Laurence Steinberg & Sanford M. Dornbusch, Negative Correlates of Part-Time Employment During Adolescence: Replication and Elaboration, 27 DEV. PSYCH., 304, 307 (1991). 26. See, e.g., Singh, Chang & Dika, supra note 10; Oettinger, supra note 17; Barone, supra note 24; MORTIMER, supra note 11. 27. See, e.g., Ruhm, supra note 11, at 738. 5.HEISE.MAN.FIN -- RECD 5-28-2024--HEISE FINAL EDITS (1) (DO NOT DELETE) 7/7/2024 8:15 PM 322 ARKANSAS LAW REVIEW Vol. 77:2 scores.28 For example, using data from the National Education Longitudinal Study (1988), Kusum Singh found a small negative effect of work hours on student standardized achievement test scores and a larger negative effect on grades.29 Research drawing on more recent data similarly found an overall negative effect of employment on high school grade-point average (“GPA”), controlling for the effects of family background, previous achievement, gender, and ethnicity.30 Even if one assumes as a general matter that “no consensus [exists] on whether student employment improves or worsens school performance,”31 scholars are more apt to converge on a narrower claim that, to the extent that student part-time work matters at all, the “intensity” of student part-time work matters.32 Any benefits to a student’s academic performance attributable to part-time work tend to correlate inversely with the total number of hours worked per week. That is, costs to student academic performance imposed by part-time work tend to emerge with greater clarity and more consistently where the student part-time work involves a significant amount of time or intensity.33 Interestingly, evidence of a part-time work intensity penalty is more pronounced for boys.34 Of course, even if clarity exists on student part-time work’s implications for short-term student outcomes, mid- and longer-term student outcomes warrant consideration as well. This is so because even where research finds that part-time high school employment imposes either small or no adverse impacts on high school achievement, this same student employment may correlate 28. Singh, Chang & Dika, supra note 10, at 12, 20; see also Herbert W. Marsh & Sabina Kleitman, Consequences of Employment During High School: Character Building, Subversion of Academic Goals, or a Threshold?, 42 AM. EDUC. RSCH. J., 331, 338 (2005). 29. Kusum Singh, Part-Time Employment in High School and Its Effect on Academic Achievement, 91 J. EDUC. RSCH., 131, 136-38 (1998). 30. See Kimberly J. Quirk et al., Employment During High School and Student Achievement: Longitudinal Analysis of National Data, 95 J. EDUC. RSCH., 4, 7-8 (2001). 31. See, e.g., Ruhm, supra note 11, at 738. 32. Id. 33. Id. 34. See Glenn I. Roisman, Beyond Main Effects Models of Adolescent Work Intensity, Family Closeness, and School Disengagement: Mediational and Conditional Hypotheses, 17 J. ADOLESCENT RSCH., 331, 340 (2002). 5.HEISE.MAN.FIN -- RECD 5-28-2024--HEISE FINAL EDITS (1) (DO NOT DELETE) 7/7/2024 8:15 PM 2024 PART-TIME WORK TRENDS 323 positively with various mid- or longer-term outcomes, including labor force participation rates, employment, and income.35 B. Mid-Term Outcomes Both theory and common sense imply that part-time work may implicate student outcomes that extend beyond a traditional focus on students’ high school academic performance. After all, one factor that may motivate some part-time work among high school students is the need to help secure mid-term outcomes, such as financing post-secondary educational opportunities.36 At the same time, students who work part-time may degrade their high school academic performance which, in turn, may paradoxically reduce options for higher educational opportunities at competitive and selective colleges and universities. Regrettably, extending the research time horizon to include possible mid-term outcomes does little to reduce research uncertainty and available broad descriptive trend data do not contribute much additional clarity. For example, Table 2 illustrates how two potentially related trends—the rates of high school-age students working part-time and college enrollment for sixteen- to twenty-four-year-olds—vary over time. While these two trends cannot inform a key counter-factual (what college enrollments might look like absent student part-time work), taken together these two trends do not suggest any obvious visual relation. Thus, at a general descriptive level, it is simultaneously neither obvious that student part-time work dampens nor fuels students’ access to higher education. 35. See, e.g., Carr et al., supra note 15, at 81. 36. See Working While in High School (to Help Pay for College), ARIZ. STATE UNIV., [https://perma.cc/2DGR-HVPA] (last visited Mar. 6, 2024). 5.HEISE.MAN.FIN -- RECD 5-28-2024--HEISE FINAL EDITS (1) (DO NOT DELETE) 7/7/2024 8:15 PM 324 ARKANSAS LAW REVIEW Vol. 77:2 Table 2: Percentage of Sixteen- to Nineteen-Year-Olds Enrolled in High School and Working Part-Time and College Enrollment Rates of Recent High School Graduates (Sixteen- to Twenty-Four-Year-Olds), 1993-202137 NOTES: Data relate to the labor force and enrollment status of persons ages sixteen to nineteen in the civilian noninstitutionalized population during an “average” week of the school year. The percentages represent an average based on responses to survey questions for the months that youth are usually in school (January through May and September through December). Results are based on nine months of data. Among high school students who aspire to post-secondary education opportunities, steadily rising higher education costs might be especially salient to their decisions about pursuing part-time work during high school. If so, one might plausibly assume that the rate of high school students engaged in part-time work tracks annual increases in the cost of higher education that exceed annual inflation rates. Moreover, not only might part-time work increase the probability of a student reducing financial barriers to the higher education market, but it might also inform a student’s ability to “persist” through college graduation. Indeed, many 37. See 61.8 Percent of Recent High School Graduates Enrolled in College in October 2021, U.S. BUREAU OF LAB. STAT. (May 23, 2022), [https://perma.cc/3RW6-9K9A]; Korhonen, supra note 8. 5.HEISE.MAN.FIN -- RECD 5-28-2024--HEISE FINAL EDITS (1) (DO NOT DELETE) 7/7/2024 8:15 PM 2024 PART-TIME WORK TRENDS 325 studies of student higher education persistence (continued enrollment) focus on a student’s “ability to pay.”38 These studies typically find, unsurprisingly, that a student’s “ability to pay has a direct effect on college persistence.”39 The descriptive trend lines presented in Table 3 do not obviously conflict with this general intuition. The solid line in Table 3 reflects the annual rate of high school students engaged in part-time work. As previously discussed, the percentage of high school students engaged in part-time work began to decline in 2000.40 While far from perfect, this uneven drop in the percentage of high school students working part-time during the school year loosely maps onto a steady—if equally uneven—decline in college tuition inflation rates (indicated with the dashed line in Table 3). Likely motivating some amount of high school student part-time work, however, at least for those students seeking to increase post-secondary educational opportunities and access, is that annual college tuition inflation rates, while evidencing a decline since 2004, nonetheless continued to exceed annual inflation rates (indicated by the “broken” line in Table 3) almost every year during the past three decades. 38. See, e.g., Alberto F. Cabrera et al., Exploring the Effects of Ability-to-Pay on Persistence in College, 13 REV. HIGHER EDUC. 303 (1990). 39. Id. at 329. 40. Korhonen, supra note 8. 5.HEISE.MAN.FIN -- RECD 5-28-2024--HEISE FINAL EDITS (1) (DO NOT DELETE) 7/7/2024 8:15 PM 326 ARKANSAS LAW REVIEW Vol. 77:2 Table 3: Percentages of Sixteen- to Nineteen-Year-Olds Enrolled in High School and Working Part-Time, College CPI, and Annual CPI, 1990-202141 NOTES: Data relate to the labor force and enrollment status of persons ages sixteen to nineteen in the civilian noninstitutionalized population during an “average” week of the school year. The percentage represents an average based on responses to survey questions for the months that youth are usually in school (January through May and September through December). Results are based on nine months of data. Annual college inflation data reflect college tuition and fees in U.S. city average, all urban consumers, not seasonally adjusted. Base period: 1982-84=100. Annual CPI data reflect U.S. city average, all urban consumers, not seasonally adjusted. Generally consistent with trends illustrated in Tables 2 and 3 are the overall mixed findings in empirical scholarship exploring part-time work’s implications for a student’s probability of pursuing higher educational opportunities.42 On 41. See 61.8 Percent of Recent High School Graduates Enrolled in College in October 2021, supra note 37; College Inflation: Prices for Tuition and Fees (1978-2024), U.S. INFLATION CALCULATOR, [https://perma.cc/K6X3-F7QP] (last visited Mar. 6, 2024); Current US Inflation Rates: 2000-2024, U.S. INFLATION CALCULATOR, [https://perma.cc/3FJX-R2W2] (last visited Mar. 6, 2024). 42. See, e.g., ERICA SMITH & ANNETTE GREEN, HOW WORKPLACE EXPERIENCES WHILE AT SCHOOL AFFECT CAREER PATHWAYS 56-60 (2005), [https://perma.cc/D4CX-DDAC]; Peter A. Creed & Wendy Patton, Differences in Career Attitude and Career 5.HEISE.MAN.FIN -- RECD 5-28-2024--HEISE FINAL EDITS (1) (DO NOT DELETE) 7/7/2024 8:15 PM 2024 PART-TIME WORK TRENDS 327 the one hand, Herbert Marsh reports that, among those students motivated to save money for college, part-time work during high school yielded important “benefits.”43 On the other hand, later work by Marsh and Kleitman reports that employment during high school had “mostly small but consistently detrimental effects on a comprehensive set of Grade 12 and postsecondary outcomes,” including college attendance.44 Similarly, while Carr et al. note that, overall, the effect of teenage work experience on students who graduated from high school on the “college—no college” decision was negative, they also hint at the possibility that this finding differs between genders.45 Relatedly, among those that did proceed to college, those who worked part-time while in high school were systematically less likely to complete their post-secondary studies.46 C. Longer-Term Outcomes Expanding the research focus once again from student academic outcomes and college access to include students’ initial entry into the full-time workforce yields a bit more clarity, but, once again, findings from relevant research often conflict. The overall weight of research findings suggests that part-time work during high school correlates with elevated employment rates, initial job-holding, and increased earnings.47 This makes particular sense for those students who can use part-time work to enhance their future labor market prospects and earning potential by learning work-related skills and forging contacts with Knowledge for High School Students with and Without Paid Work Experience, 3 INT’L J. EDUC. VOCATIONAL GUIDANCE 21, 27-29 (2003). 43. Herbert W. Marsh, Employment During High School: Character Building or a Subversion of Academic Goals?, 64 SOCIO. EDUC. 172, 184-86 (1991). 44. Marsh & Kleitman, supra note 28, at 352, 363. 45. See Carr et al., supra note 15, at 73-74. 46. Id. 47. Ruhm, supra note 11, at 739. 5.HEISE.MAN.FIN -- RECD 5-28-2024--HEISE FINAL EDITS (1) (DO NOT DELETE) 7/7/2024 8:15 PM 328 ARKANSAS LAW REVIEW Vol. 77:2 employers.48 In addition, the impact of early work experience on earnings may have increased as the return to skill has risen.49 Any potential longer-term benefits attributable to student part-time work in high school may wane over time, however. A study of annual earnings for twenty-three- to twenty-nine-year-olds for two cohorts of workers separated by almost twenty years (1979 and 1997) finds that the magnitude of any annual earnings benefit owing to student part-time work decayed over the two decades studied.50 While work experience during a student’s high school senior year overall correlates with generally positive labor market outcomes, including annual earnings, the magnitude of these labor market gains decreased between 1979 and 1997.51 These (diminishing) earnings’ benefits distribute similarly across men and women, with the benefits being comparably higher for those students who attend college.52 That most of the research on this issue dwells on students’ initial entry into the workforce, however, limits it generalizability. Owing to this research limitation, it remains unclear whether any longer-term employment benefits attributable to part-time work in high school represent permanent structural gains or, instead, merely short-term, transitory advantages. Even where student part-time work corresponds with initial, short-term employment outcome benefits, the part-time work may simultaneously impose potentially steeper longer-term costs by reducing a student’s overall human capital investment. A risk of reduced human capital investment might arise where the part-time work experience in high school harms academic performance, including high school completion and college attendance rates.53 That is, longer-term costs flowing from 48. See Charles L. Baum & Christopher J. Ruhm, The Changing Benefits of Early Work Experience, 83 S. ECON. J. 343, 343 (2016); Stephen Billett & Carolyn Ovens, Learning About Work, Working Life and Post-School Options: Guiding Students’ Reflections on Paid Part-Time Work, 20 J. EDUC. & WORK 75, 83 (2007); Melanie J. Zimmer-Gembeck & Jeylan T. Mortimer, Adolescent Work, Vocational Development, and Education, 76 REV. EDUC. RSCH. 537, 553 (2006). 49. See Oettinger, supra note 17, at 137. 50. See Baum & Ruhm, supra note 48, at 343. 51. Id. at 350-51; but see Carr et al., supra note 15, at 76-79 (arguing more forcefully for positive net effects); see also SMITH & GREEN, supra note 42, at 14. 52. Baum & Ruhm, supra note 48, at 353. 53. Monahan et al., supra note 9, at 105-06. 5.HEISE.MAN.FIN -- RECD 5-28-2024--HEISE FINAL EDITS (1) (DO NOT DELETE) 7/7/2024 8:15 PM 2024 PART-TIME WORK TRENDS 329 reduced human capital investment may outweigh any initial, though transitory, short-term employment benefits. III. METHODOLOGICAL, DATA, AND CONCEPTUAL LIMITATIONS As an organizing topic for this special issue, Children at Work, broadly understood, necessarily straddles a wide swath of legal and policy terrain and is located at the intersection of multiple and competing public policies. To be sure, at one extreme, practices involving forced child labor, child labor trafficking, and child labor that runs afoul of prevailing state and federal labor laws, are certainly easy to condemn. Examples found the other extreme, however, such as instances involving part-time work by a high school honors student seeking to help finance post-secondary education options, will strike many as easy to applaud, at least in the abstract. Within the exceptionally broad space that separates both extremes, this Article self-consciously takes on only one very narrow slice by specifically focusing on lawful part-time work pursued by full-time high school students (or, more accurately, sixteen- to nineteen-year-olds). Even within this discrete, narrow slice of the Children at Work debate, however, important complications, complexities, and uncertainties lurk. Key factors limiting existing empirical research include methodological and data limitations as well as some consequential conceptual uncertainties. Due to these (and other) limitations, what is not known about the costs and benefits to students attributable to part-time work during high school risks overwhelming what is known. One immediate consequence of this under-developed research base is that efforts to comfortably moor general policies governing student part-time work in high school are fraught with peril. A. A Brief Summary of Some Leading Data Sets While this Article can be plausibly characterized as generally skeptical of existing empirical scholarship on the impacts of part-time high school student work, much of the 5.HEISE.MAN.FIN -- RECD 5-28-2024--HEISE FINAL EDITS (1) (DO NOT DELETE) 7/7/2024 8:15 PM 330 ARKANSAS LAW REVIEW Vol. 77:2 leading empirical scholarship in this area levers an array of leading major data sets. Given these data sets’ prominence in much of the important and influential research in this area, a brief description of six major data sets that dominate empirical assessments of part-time work’s implications for full-time high school students is warranted. 1. National Longitudinal Study (1972) The National Longitudinal Study of the High School Class of 1972 (“NLS:72”) is among the National Center for Education Statistics’ (“NCES”) earliest forays into longitudinal research on high school students and began with a sample that included over 21,000 high school seniors in 1972.54 Data were primarily gathered in a base-year (1972) and five follow-up surveys (1973, 1974, 1976, 1979, and 1986) as well as from a collection of postsecondary transcripts from the colleges and universities attended by participating students.55 With this data set, the NCES began providing longitudinal information to educational policymakers and researchers that linked educational experiences with later outcomes, including early labor market experiences and postsecondary education enrollment and attainment.56 2. National Longitudinal Survey of Youth (1979) Sponsored by the U.S. Department of Labor, the National Longitudinal Study of the High School Class of 1972 (“NLSY:79”) data set was originally administered to a nationally representative sample of 12,686 students who were between fourteen and twenty-one years old in 1978, including 1,149 high 54. See NAT’L CTR. EDUC. STAT., NATIONAL LONGITUDINAL STUDY OF THE HIGH SCHOOL CLASS OF 1972 (NLS:72) at 1 (2018), [https://perma.cc/P9HA-8FDW] [hereinafter NLS:72]; National Longitudinal Study of 1972 (NLS-72), NAT’L CTR. EDUC. STAT., [https://perma.cc/C872-W9HL] (last visited Mar. 8, 2024); see, e.g., Spyros Konstantopoulos, Trends of School Effects on Student Achievement: Evidence from NLS:72, HSB:82, and NELS:92, 108 TCHRS. COLL. REC. 2550, 2556 (2006). 55. NLS:72, supra note 54, at 2. 56. Konstantopoulos, supra note 54, at 2552. 5.HEISE.MAN.FIN -- RECD 5-28-2024--HEISE FINAL EDITS (1) (DO NOT DELETE) 7/7/2024 8:15 PM 2024 PART-TIME WORK TRENDS 331 school freshman and sophomores.57 Annual interviews were conducted beginning in 1979, with a shift to biennial interviews after 1994.58 As of the 2020 interview round, surviving NLSY:79 women respondents had attained the ages of fifty-five to sixty-four.59 This data set is notable for its duration which allows researchers to observe respondents’ mid- to long-term employment outcomes.60 3. High School and Beyond (1980) The High School and Beyond (1980) (“HSB:80”) data set, the second in the series of NCES’ longitudinal surveys of high school students, launched in 1980 with two high school cohorts.61 The HSB:80 base-year (1980) interview involved nearly 30,000 high school sophomores and an equal number of seniors distributed across approximately 1,000 different U.S. high schools.62 Approximately 15,000 sophomores and 12,000 seniors in the original (1980) sample were selected for follow-up interviews.63 These subsamples were re-interviewed biennially until 1986, and the sophomore subsample was also re-interviewed in 1992.64 4. National Education Longitudinal Study (1988) The National Education Longitudinal Study of 1988 (“NELS:88”) data set, launched in the spring of the 1987-1988 school year, includes an initial sample of 24,599 participating eighth graders along with one parent of each student participant, 57. See NLSY79 Child and Young Adult Data Overview, U.S. BUREAU LAB. STAT. (Aug. 8, 2023), [https://perma.cc/QQ2P-AEFQ]. 58. Id. 59. Id. 60. Id. 61. See NAT’L CTR. EDUC. STATS., HIGH SCHOOL & BEYOND (HS&B) LONGITUDINAL STUDY 1 (2018), [https://perma.cc/SE6X-LVZG] [hereinafter HS&B]; High School & Beyond (HS&B), NAT’L CTR. EDUC. STAT., [https://perma.cc/XS97-YZVC] (last visited Mar. 8, 2024). 62. HS&B, supra note 61, at 1. 63. Id. at 5. 64. Id. at 2-3. 5.HEISE.MAN.FIN -- RECD 5-28-2024--HEISE FINAL EDITS (1) (DO NOT DELETE) 7/7/2024 8:15 PM 332 ARKANSAS LAW REVIEW Vol. 77:2 two of the students’ teachers, and the students’ school principal.65 Along with a general survey, students were tested in reading, mathematics, science, and social studies during their eighth, tenth, and twelfth grade years.66 5. Education Longitudinal Study (2002) The Education Longitudinal Study of 2002 (“ELS:02”) data set is best viewed in the context of NCES’ prior longitudinal high school data sets.67 The ELS:02 data set was expressly constructed to build and expand on earlier NCES data sets.68 The ELS:02 set out to do so with a nationally-representative sample of more than 15,000 tenth graders from more than 750 public and private schools in 2002, supplemented with periodic follow-up data gathering (in 2004, 2006, and 2012).69 6. High School Longitudinal Study (2009) The High School Longitudinal Study of 2009 (“HSLS:09”) data set, currently the only ongoing NCES longitudinal study, focuses on the transition of American students from secondary schooling to subsequent education and work roles with a particular emphasis on STEM-related issues.70 The HSLS:09 sample includes approximately 21,000 ninth graders 65. See NAT’L CTR. EDUC. STAT., NATIONAL EDUCATION LONGITUDINAL STUDY OF 1988 (NELS:88), at 1 (2018), [https://perma.cc/RXX7-FXBK] [hereinafter NELS:88]; National Education Longitudinal Study of 1988 (NELS:88), NAT’L CTR EDUC. STAT., [https://perma.cc/M7TG-VPEJ] (last visited Mar. 9, 2024); see, e.g., Quirk et al., supra note 30, at 4-5. 66. NELS:88, supra note 65, at 1-2. 67. See NAT’L CTR. EDUC. STAT., EDUCATION LONGITUDINAL STUDY OF 2002 (ELS:2002), at 1 (2018), [https://perma.cc/JR32-5SC6] [hereinafter ELS:02]; Education Longitudinal Study of 2002 (ELS:2002), NAT’L CTR. EDUC. STAT., [https://perma.cc/2WDX-YFPQ] (last visited Mar. 9, 2024); see, e.g., David S. Knight & Julia C. Duncheon, Broadening Conceptions of a “College-Going Culture”: The Role of High School Climate Factors in College Enrollment and Persistence, 18 POL’Y FUTURES EDUC. 314, 319 (2020). 68. See Education Longitudinal Study of 2002 (ELS:2002), supra note 67. 69. ELS:02, supra note 67, at 1, 7-8. 70. See NAT’L CTR. EDUC. STAT., HIGH SCHOOL LONGITUDINAL STUDY OF 2009 (HSLS:09), at 1-2 (2018), [https://perma.cc/MS5M-PG4T] [hereinafter HSLS:09]; High School Longitudinal Study of 2009 (HSLS:09), NAT’L CTR. EDUC. STAT. [https://perma.cc/USH2-M54F] (last visited Mar. 9, 2024); see, e.g., Brian Holzman et al., Gaps in the College Application Gauntlet, 61 RSCH. HIGHER EDUC. 795, 800 (2020). 5.HEISE.MAN.FIN -- RECD 5-28-2024--HEISE FINAL EDITS (1) (DO NOT DELETE) 7/7/2024 8:15 PM 2024 PART-TIME WORK TRENDS 333 from 940 schools (in 2009), with follow-up data gathering in 2012, 2013, and again in 2016 and 2017.71 B. Research Design, Data, and Conceptual Limitations While leading data sets in this research space (including those briefly described above) include important and obvious strengths, they are not without equally important and obvious limitations. Among the ways that most leading data sets confine research efforts seeking to assess the various impacts on key student outcomes attributable to student part-time work while in high school relate to important constraints incident to research design, data, and conceptual limitations. Each of the specific limitations identified below is important in its own right. The collective weight of these limitations restricts these data sets’ efficacy. C. Structural Data Set Limitations—Selection Effects Even the leading data sets that fuel empirical scholarship on part-time work’s implications for high school students are not immune from structural limitations that limit research in this area in important ways. The most serious research design challenge flows from studies comparing various student outcomes as a function of, in part, whether students engage in part-time work. At bottom, this research design understandably pivots on comparing outcomes from two discrete student sub-groups: those high school students who work part-time and those students who do not. One important limitation to such a research design, however, is that it ignores the critical selection processes that systematically distinguish those students who engage in part-time work and those who do not work. The risk of bias flowing from non-random student sorting into one of these two subgroups is difficult to over-estimate and cannot be properly ignored as these two distinct student subgroups may (or, indeed, likely) systematically differ from each other in ways that influence the 71. HSLS:09, supra note 70, at 1-2. 5.HEISE.MAN.FIN -- RECD 5-28-2024--HEISE FINAL EDITS (1) (DO NOT DELETE) 7/7/2024 8:15 PM 334 ARKANSAS LAW REVIEW Vol. 77:2 dependent variable (or outcome) of interest. To put the point more concretely, selection effects pose a risk if, for example, the “more able or motivated students systematically choose different patterns of high school employment than students with less ability or motivation.”72 If this is the case, then observed patterns of student part-time employment (and non-employment) during high school are “unlikely to occur randomly.”73 Research design threats posed by selection effects are easy to illustrate. For example, scholarly efforts seeking to assess the impact of student part-time work on academic achievement (e.g., student high school GPAs) typically involve comparing the academic achievement of those students who engage in part-time work and those students who did not work. Complicating—and limiting—the efficacy of such a comparison, however, is the possibility that these two distinctive streams of high school students—those who pursue part-time work and those students who do not—may systematically vary in ways that inform the outcome of interest: student academic achievement. Consequently, any observed difference in the outcome variable of interest (academic achievement, or GPAs) may have far more to do with systematic differences in the two subgroups of students (those who work part-time and those who do not) than the independent influence of any student part-time work itself. Complicating this matter further is that the impact of this selection effect threat can plausibly run in many directions. One possibility is that the stream of students engaging in part-time work includes comparatively weaker and less motivated students. Another possibility is that students pursuing part-time work are comparatively stronger and more motivated students whose aspirations include college attendance. For those students whose post-secondary educational options might be restricted owing to economic hardship, pursuing part-time work during high school may be necessary to help preserve financial access to post-secondary educational opportunities. And if this dynamic informs student self-selections into part-time work, the threat to these students’ high school academic outcomes posed by part- 72. Oettinger, supra note 17, at 138. 73. Baum & Ruhm, supra note 48, at 349. 5.HEISE.MAN.FIN -- RECD 5-28-2024--HEISE FINAL EDITS (1) (DO NOT DELETE) 7/7/2024 8:15 PM 2024 PART-TIME WORK TRENDS 335 time work is lessened owing to their comparatively stronger motivations to achieve academically. Additional complications also lurk. For example, even if the subgroup of students who pursue part-time work is dominated by comparatively higher academic performers and more motivated students, yet another possibility is that the burden of part-time work nonetheless imposes a cost in terms of their potential academic achievement. How to best interpret such a cost, however, is not obvious. A focus on immediate deleterious short-term consequences to high school achievement attributable to part-time student work may obscure students’ more complex balancing of short-term costs (student high school GPA) with mid-term benefits (greater financial access to post-secondary education). That is, by engaging in part-time work, students may simultaneously increase their access to higher education in general despite the cost of decreasing their potential attractiveness to highly selective colleges and universities due to part-time work’s penalty on their high school GPAs. Regardless of how selection effects may cut, the larger point is that studies failing to account for selection effects risk inviting biased results and confound clear causal explanations. To their credit, many researchers acknowledge the critical limitations imposed by selection effects issues.74 Equally unsurprising are an array of methodological efforts that attempt to adjust for bias introduced by selection effects. Various, and more recent, approaches to better account for assumed unobservables range from including a greater number and wider array of control variables75 and controlling for time-lagged covariates76 to propensity score matching research designs.77 Despite emerging modeling and statistical efforts designed to better “control” for such selection effects, these efforts invariably amount to “second-best” research designs. 74. See, e.g., Monahan et al., supra note 9, at 96. 75. See, e.g., Baum & Ruhm, supra note 48, at 348-49. 76. See, e.g., James J. Heckman & V. Joseph Holtz, Choosing Among Alternative Nonexperimental Methods for Estimating the Impact of Social Programs: The Case of Manpower Training, 84 J. AM. STAT. ASS’N., 862, 872 (1989). 77. See, e.g., Jennifer C. Lee & Jeremy Staff, When Work Matters: The Varying Impact of Work Intensity on High School Dropout, 80 SOCIO. EDUC. 158, 160-62 (2007); Monahan et al., supra note 9, at 98-99. 5.HEISE.MAN.FIN -- RECD 5-28-2024--HEISE FINAL EDITS (1) (DO NOT DELETE) 7/7/2024 8:15 PM 336 ARKANSAS LAW REVIEW Vol. 77:2 Despite increasingly sophisticated modeling and statistical efforts designed to “control” for such systematic differences between two plausibly distinct subpools of students, the differences that separate these two student subpools likely elude even the most careful empirical specifications or modeling. To be sure, threats to research findings posed by selection effects flowing from this non-randomization extend beyond short-term student academic achievement and into mid- and long-term outcomes of interest as well, including access to college, employment, and annual earnings. Indeed, Monahan et al. describe selection effects as “[o]ne of the greatest limitations” on empirical scholarly work in this area.78 To illustrate their point, Monahan et al.’s 2011 paper reanalyzes Steinberg et al.’s data set with a slightly different and more granular research design.79 Specifically, Monahan et al. use multiple imputation to address size estimation bias and a propensity score matching strategy to better account for selection bias. As one would expect (and, frankly, hope) given that both studies use the identical data set, Monahan et al.’s findings are, in the main, “substantially similar” to Steinberg et al.’s original findings which derive from a slightly different research design.80 While findings from these two separate studies evidence some degree of overlap, Monahan et al.’s reanalysis nonetheless uncovered “two primary differences” involving possible effects on student outcomes flowing from high-intensity part-time student employment.81 And according to Monahan et al., these two differences in the findings “may be the result of inadequately accounting for selection effects in the original [Steinberg et al.] analyses.”82 It remains difficult to over-estimate the threats posed by selection effects to research in this area. In a perfect world (from a research design perspective), to facilitate more robust and reliable causal inferences social scientists would have the ability to randomly assign students into part-time work and, as well, 78. See Monahan et al., supra note 9, at 96. 79. Id. at 97; Steinberg et al., supra note 25, at 174-75. 80. Monahan et al., supra note 9, 103-05; Steinberg et al., supra note 25, at 175-77. 81. Monahan et al., supra note 9, at 107. 82. Id. 5.HEISE.MAN.FIN -- RECD 5-28-2024--HEISE FINAL EDITS (1) (DO NOT DELETE) 7/7/2024 8:15 PM 2024 PART-TIME WORK TRENDS 337 randomize workplace intensity (hours worked per school week) and experiences (types of part-time work). Given obvious research ethical concerns, as well as institutional review boards that monitor university-sponsored research involving human participants,83 what may be ideal for social science is simply not possible in the real world. As such, social scientists are functionally confined to various “second-best” research designs. 1. Limited Data Setting aside methodological challenges posed by selection effects, various data sets include structural and variable-level limitations that impose additional challenges for researchers exploring the effects of part-time work on high school student outcomes. These limitations involve sample and response bias, data set design issues, and insufficient granularity for key variables of interest. First, the potential for sample and response bias risks can quickly compound problems introduced by selection effects (discussed above). That is, even if one assumes away the critical limitations imposed by selection effects, related—though distinct—limitations generated by sample and response biases persist. While the leading data sets strive for nationally representative samples, in the ELS:02 data set, for example, participating schools and their students were not randomly assigned and, consequently, the data set may be distorted by schools’ and students’ “willingness to participate.”84 Similarly, while the HSLS:09 data set includes a national sample of schools, individual student-level data derives from, on average, only twenty-seven students per school.85 83. This includes my own research at Cornell University. See Research with Human Participants, CORNELL UNIV. (Feb. 1, 2023), [https://perma.cc/N2SF-RK5D]. 84. Rochelle L. Rowley & David W. Wright, No “White” Child Left Behind: The Academic Achievement Gap Between Black and White Students, 80 J. NEGRO EDUC. 93, 103 (2011). 85. Luronne Vaval et al., Identifying a Typology of High Schools Based on Their Orientation Toward STEM: A Latent Class Analysis of HSLS:09, 103 SCI. EDUC. 1151, 1170 (2019); see also STEVEN J. INGELS ET AL., HIGH SCHOOL LONGITUDINAL STUDY OF 2009 (HSLS:09) BASE YEAR TO FIRST FOLLOW‐UP DATA FILE DOCUMENTATION 35 (2013). 5.HEISE.MAN.FIN -- RECD 5-28-2024--HEISE FINAL EDITS (1) (DO NOT DELETE) 7/7/2024 8:15 PM 338 ARKANSAS LAW REVIEW Vol. 77:2 Another related—though distinct—form of response bias derives from data sets that rely on respondents’ self-reports. For example, the NCES, the federal organization that initiated and sponsored the NLS:72 data set, has noted evidence of “substantial discrepancies between student-reported postsecondary attendance in the NLS:72 follow-up surveys and the evidence obtained from official school transcripts collected.”86 Obviously, while “perfect” data sets are illusive, data sets that rely on self-reports are unusually exposed to this genre of error. Finally, various data gathering methods and variable constructions introduce limitations as well. For example, data contained in the NLSY:79 data set were primarily gathered through telephone interviews with respondents.87 However, the accuracy of self-reports solicited over telephone interviews, at least as compared to other standard self-reporting methods, continues to receive scholarly attention.88 Second, an important design feature that leading data sets promote is their longitudinal structure. One obvious strength of longitudinal data sets is that they track information from the same respondents over time.89 One accompanying—and inevitable—weakness, however, is that some portion of respondents drop out during a study.90 And what can be especially troublesome is when the respondents who drop out systematically vary from the respondents who persist over the entire span of the study. While all of the six leading data sets briefly described above are longitudinal in design, many published studies in this field draw instead from cross-sectional data sets that include information from a single moment in time (or sometimes from multiple discrete moments in time). What cross-sectional data 86. NLS:72, supra note 54, at 11. 87. Donna S. Rothstein et al., Cohort Profile: The National Longitudinal Survey of Youth 1979 (NLSY79), 48 INT’L J. EPIDEMIOLOGY 22, 22c-d (2019). 88. See, e.g., Frieder R. Lang et al., Short Assessment of the Big Five: Robust Across Survey Methods Except Telephone Interviewing, 43 BEHAV. RSCH. METHODS 548, 549 (2011); Donald J. Brambilla & Sonja M. McKinlay, A Comparison of Responses to Mailed Questionnaires and Telephone Interviews in a Mixed Mode Health Survey, 126 AM. J. EPIDEMIOLOGY 962, 962 (1987). 89. Edward J. Caruana et al., Longitudinal Studies, 7 J. THORACIC DISEASE E537, E537 (2015). 90. Id. at E538. 5.HEISE.MAN.FIN -- RECD 5-28-2024--HEISE FINAL EDITS (1) (DO NOT DELETE) 7/7/2024 8:15 PM 2024 PART-TIME WORK TRENDS 339 sets that include multiple points of time do not feature, however, is a fixed set of respondents over multiple time periods. Because the effects of high school student part-time work typically do not present until some amount of time has passed, studies using cross-sectional data sets are comparatively less well-positioned to detect reliable information on part-time work’s treatment effect. Third, even leading data sets do not typically include the universe of variables necessary to estimate models seeking to reliably explain how part-time work influences observed variation in various student outcomes. Relatedly, some of the key variables that the data sets do include lack necessary granularity or important information. For example, the NLS:72 data set, similar to others, includes an array of standard student- and school-level control variables.91 These student-level variables typically include information on student gender, race/ethnicity, and socioeconomic status.92 At the school-level, data sets usually include measures of a school’s socioeconomic status, minority concentration, daily attendance, dropout rates, college attendance rates, and pupil-teacher ratio.93 Despite its helpful array of control variables, what the NLS:72 data set lacks, however, is information on student motivations for engaging in part-time work. To the extent one may plausibly hypothesize a student’s motivation for pursuing (or not pursuing) part-time work may speak to dependent variables of interest (e.g., high school academic performance, post-secondary educational options), data sets without such information may be incomplete and lack the necessary suite of relevant control variables. By contrast, the HSB:80 data set includes variables designed to provide insights into students’ motivations for part-time employment during high school.94 Researchers using HSB:80 data have found, for example, that while various student job-related circumstances correspond with various negative student outcomes in the aggregate, a student motivated to pursue part-time work to save for college “was a notable exception.”95 91. See NLS:72, supra note 54, at 4-5; Konstantopoulos, supra note 54, at 2556-57. 92. NLS:72, supra note 54, at 1. 93. Konstantopoulos, supra note 54, at 2556-57. 94. See HS&B, supra note 61, at 3-4. 95. See, e.g., Marsh, supra note 43, at 183, 185. 5.HEISE.MAN.FIN -- RECD 5-28-2024--HEISE FINAL EDITS (1) (DO NOT DELETE) 7/7/2024 8:15 PM 340 ARKANSAS LAW REVIEW Vol. 77:2 That is to say, hours worked by students motivated to save money for college “had particularly beneficial effects on actual attendance at college, educational aspirations, academic self-concept, and time spent on homework.”96 Thus, in slight opposition to “zero-sum” models which imply that a student’s commitments in one sphere (e.g., part-time work) reduce that student’s commitments in other spheres (e.g., high school academic achievement), Marsh instead finds that “students who worked and saved their money for college actually spent more time on homework.”97 Data sets that include information on student motivation for part-time work provide researchers with the opportunity for much richer and nuanced analyses. Even where data sets include important variables, some of these variables are not sufficiently granular. Ironically, even variables measuring student part-time work in leading data sets elicit criticism. Although the leading data sets typically include variables germane to “part-time employment for high school students,” these variables can take a range of different forms. This range can be important where a variable does not fully capture variation in student part-time work intensity. In terms of student part-time work intensity, the weight of existing research appears to coalesce around twelve to twenty hours of part-time work as a flashpoint.98 As John Tyler notes, while in a perfect world the student work experience variable would be a continuous measure, the NELS:88 data set reduces the information to a categorical variable with ten bins.99 Other variables receive criticism for their construction and lack of completeness. One example involves the HSLS:09 data set, designed to focus on the influence of student STEM-related high school coursework.100 While the HSLS:09 data set includes a variable that indicates those students who enrolled in AP-level STEM-related math or science high school courses, the variable 96. Id. at 185. 97. Id. at 186. 98. See, e.g., Quirk et al., supra note 30, at 4, 8. 99. John H. Tyler, Using State Child Labor Laws to Identify the Effect of School‐Year Work on High School Achievement, 21 J. LAB. ECON. 381, 389-90 (2003). 100. HSLS:09, supra note 70, at 1. 5.HEISE.MAN.FIN -- RECD 5-28-2024--HEISE FINAL EDITS (1) (DO NOT DELETE) 7/7/2024 8:15 PM 2024 PART-TIME WORK TRENDS 341 does not distinguish which specific AP-level STEM-related math or science course (e.g., physics, biology, calculus AB, etc.).101 To be sure, while it is perhaps easy to identify how these data sets may fall short and ways in which they can be improved, it remains important to emphasize that these data sets nonetheless continue to provide helpful information to researchers. The broader—and more important—point is that securing a more robust and reliable understanding of the various costs and benefits uniquely attributable to high school students’ part-time work patterns will, of course, require more—and better—data and research designs. This is especially true for related questions about how any of these costs and benefits may vary across groups of students, social contexts, and types and magnitude of part-time high school work. It is particularly critical that researchers focus on how the effects—costs and benefits—of part-work distribute across various student subpopulations (e.g., urban, suburban, or rural students; at-risk students; college-bound versus vocational students). The consequences of work by high school students also likely varies by work intensity and social contexts. More focused analyses on student subgroups, part-time work intensity, and type of work will likely produce more precise and specific information for scholars as well as policymakers in addition to high school counselors, parents, and students. 2. Various Conceptual Limitations Even with the benefit of “perfect” data sets and the absence of any selection-effects, complex conceptual challenges endure for research seeking to assess how part-time work impacts high school students. One important challenge on this front relates to good-faith debates about which student outcomes (short-, mid-, or long-term outcomes) are more important from a policy perspective. Impeding the development of any firm consensus on how to best prioritize various student outcomes are the ways in which the various sets of student outcomes interact and, quite possibly, collide with one another. For example, it 101. Elizabeth C. Jewett & Rong Chen, Examining the Relationship Between AP STEM Course-Taking and College Major Selection: Gender and Racial Differences, 111 J. ENG’G. EDUC. 512, 518 (2022). 5.HEISE.MAN.FIN -- RECD 5-28-2024--HEISE FINAL EDITS (1) (DO NOT DELETE) 7/7/2024 8:15 PM 342 ARKANSAS LAW REVIEW Vol. 77:2 remains possible that while part-time student work may yield short- and mid-term costs (e.g., lower student academic achievement which, in turn, may reduce selective post-secondary educational opportunities), that same student part-time employment experience may also yield longer-term benefits, including a boost to students’ initial full-time employment prospects and earnings. Another conceptual challenge involves distributional questions. While some important exceptions in the research literatures exist,102 much of the empirical literature implicitly presumes that these costs and benefits attributable to student part-time work in high school distribute monotonically and equally across all students and stably over time. Such a presumption, however, blinks at reality and the possibility that student part-time work’s costs and benefits may matter more for some students than others and that key outcomes likely vary not only across students but over time as well. CONCLUSION Even many of those who generally oppose part-time work for full-time high school students, certainly part-time work in excess of twenty hours per week, typically recognize some potential benefits flowing from student part-time work, including “income, valuable lessons about responsibility and finances, and transferrable job skills.”103 Such benefits can be consequential, especially for those students who can contribute financially to their households or, relatedly, increase their access to higher educational opportunities. Despite any possible benefits, critics of part-time work for full-time students emphasize that the costs attributable to an array of implications for various student outcomes, including “less academic success in high school, increased absences and drop-out rates, and lower grade-point averages than those who do not work or those who work fewer hours,”104 overwhelm any purported 102. See, e.g., Carr et al., supra note 15, at 73-74 (noting how college access findings may distribute unevenly across genders). 103. See, e.g., Moskowitz, supra note 6, at 108. 104. Id. at 109. 5.HEISE.MAN.FIN -- RECD 5-28-2024--HEISE FINAL EDITS (1) (DO NOT DELETE) 7/7/2024 8:15 PM 2024 PART-TIME WORK TRENDS 343 benefits. Additionally, and at a more general level, some critics argue that student work experience tends to “weaken the social controls exerted by school and family restraining deviant behavior.”105 While proponents and opponents of part-time work for full-time high school students proffer potentially quite different visions of the costs and benefits attributable to part-time student work, one challenge, at least for scholars, is that even the leading data sets cannot yet persuasively scaffold the rigorous empirical testing that these two quite different and competing hypotheses deserve. Indeed, as the title of this Article itself alludes, existing methodological and data limitations as well as some persisting conceptual contestations limit research in this area in important ways. And even if such limitations did not exist, secondary and tertiary challenges also lurk. For example, nested within assessments of part-time work’s influence on key student outcomes are necessary—and key—normative judgments, which among the array of plausible student outcomes is the most salient for policymakers. While each of the individual challenges alone is substantial, the collective weight of these various challenges to research on part-time work’s impacts on full-time high school students threatens to overwhelm the necessary empirical foundation that sound public policy typically seeks if not requires. 105. Id.; see also, Jeremy Staff & Christopher Uggen, The Fruits of Good Work: Early Work Experiences and Adolescent Deviance, 40 J. RSCH. CRIME & DELINQ. 263, 267 (2003). 6.MILCZAREK-DESAI.MAN.FIN (3) (DO NOT DELETE) 7/7/2024 8:21 PM (HIDDEN) IN PLAIN SIGHT: MIGRANT CHILD LABOR AND THE NEW ECONOMY OF EXPLOITATION Shefali Milczarek-Desai∗ [P]eople often say that [migrant child labor] is something that’s hiding in plain sight. But, I mean, it’s barely hiding. It is in plain sight. —Hannah Dreier1 INTRODUCTION: STORIES FROM THE NEW ECONOMY OF EXPLOITATION Oppressive child labor in America is both an age-old problem and one that is relatively new. Its old embodiment flourished during the Industrial Revolution of the late nineteenth and early twentieth centuries, especially among poor children, many of whom were immigrants.2 This began to change only after a century-long battle that pitted anti-child labor activists and ∗ Associate Professor of Law, Distinguished Public Service Scholar, and Co-Chair of the Bacon Immigration Law and Policy Program. This paper would not have been possible without the work and vision of the Arkansas Law Review, its Symposium Issue Editor John Hudson, Editor-in-Chief Jissel Esparza Saucedo, and advisor Annie Smith in holding the Children at Work Symposium on October 13, 2023. The paper benefitted greatly from the expertise and insights of all symposium participants, especially Yasin Khan, as well as from guidance and thoughts from my colleagues Barbara Atwood, Derek Bambauer, Andy Coan, Marc Miller, Diana Newmark, Shalev Roisman, Stephanie Stern, and all participants of the January 2024 University of Arizona College of Law Faculty Workshop. I am grateful to Daiquiri Steele and Ryan Nelson for selecting this paper for the AALS 2024 Employment Law Section’s Emerging New Voices workshop and am deeply indebted to Angela Morrison for her excellent comments and feedback. Many thanks to Allison Weber, Sarah Gotschall, and Cas Laskowski for superb research assistance and, as always, to Bert Skye for proofreading and formatting magic. All errors are mine. This paper is dedicated to my teenaged sons, Sagar and Pavan. 1. Sabrina Tavernise, A New Child Labor Crisis in America: Migrant Children are Ending Up in Some of the Most Dangerous Jobs in the Country, N.Y. TIMES: THE DAILY, at 26:22 (Mar. 9, 2023), [https://perma.cc/XYS6-H6QY]. 2. See J. Hansan, Child Labor: The American Era of Child Labor, VCU LIBRS. SOC. WELFARE HIST. PROJECT (2011), [https://perma.cc/88WB-2C59]. 6.MILCZAREK-DESAI.MAN.FIN (3) (DO NOT DELETE) 7/7/2024 8:21 PM 346 ARKANSAS LAW REVIEW Vol. 77:2 reformers against powerful industries and states’ rights advocates.3 The former sought to eradicate the most exploitative aspects of this practice, which included young children toiling in dangerous workplaces for excessive hours to the detriment of their health, safety, well-being, and future prospects.4 Assisted by shifting cultural norms, especially with respect to mandatory education and political dynamics during the New Deal Era, these groups prevailed in passing the first federal legislation outlawing the worst forms of child labor with the enactment of the Fair Labor Standards Act (“FLSA”) in 1938.5 For a moment, the nation allowed itself to believe it was free from oppressive child labor and marched forward wrapped in the self-assured rhetoric of progress.6 Almost one hundred years later, a “new economy of exploitation” has arisen.7 In February 2023, Hannah Drier, a New York Times investigative journalist who, along with her colleagues, has interviewed hundreds of migrant children in about half of the states, began reporting her findings in articles revealing that approximately 200,000 migrant children currently work in extremely harmful and hazardous workplaces in clear violation of federal and state laws.8 The stories Ms. Drier unearthed are gut- 3. See Michael Schuman, History of Child Labor in the United States—Part 2: The Reform Movement, U.S. BUREAU OF LAB. STAT., MONTHLY LAB. REV. (Jan. 2017), [https://perma.cc/R8RK-SJ2B]. 4. Id. 5. Id. 6. The eradication of oppressive child labor was never true for the poorest of young Americans, often the children of migrant farm laborers; but this group, like their exploited migrant farmworker parents, was and always has been largely ignored. See Nina Krauth, Do Farmers Reap More than Their Child Laborers Sow—The Conflict Between the Fair Labor Standards Act and State Workers’ Compensation Laws, 5 SAN JOAQUIN AGRIC. L. REV. 213, 218, 222 (1995). 7. See Hannah Dreier, Alone and Exploited, Migrant Children Work Brutal Jobs Across the U.S., N.Y. TIMES (Feb. 28, 2023) [hereinafter Alone and Exploited], [https://perma.cc/6A7G-EZ7K]. 8. Id. (“The Times examination also drew on court and inspection records and interviews with hundreds of lawyers, social workers, educators and law enforcement officials.”); Hannah Dreier et al., Children Risk Their Lives Building America’s Roofs, N.Y. TIMES (Dec. 14, 2023) [hereinafter Children Risk Their Lives], [https://perma.cc/9NR4-96A9] (this article is based on interviews with over 100 migrants in nearly two dozen states; it states that some of the interviewed boys began working on roofs when they were still in elementary school). 6.MILCZAREK-DESAI.MAN.FIN (3) (DO NOT DELETE) 7/7/2024 8:21 PM 2024 (HIDDEN) IN PLAIN SIGHT 347 wrenching and heartbreaking. In stark prose that verges on haunting poetry, she writes: Cristian works a construction job instead of going to school. He is 14. Carolina packages Cheerios at night in a factory. She is 15. Wander starts looking for day-labor jobs before sunrise. He is 13 . . . In town after town, children scrub dishes late at night. They run milking machines in Vermont and deliver meals in New York City. They harvest coffee and build lava rock walls around vacation homes in Hawaii. Girls as young as 13 wash hotel sheets in Virginia.9 More children, some as young as twelve, work twelve-hour shifts in meat-packing plants de-boning chicken sold at Whole Foods, making rolls in hot ovens for bakeries that supply Walmart and Target, and processing milk in factories that sell to Ben & Jerry’s.10 Others, mostly boys, work in one of the most dangerous construction jobs in the country—roofing.11 “They wake before dawn to be driven to distant job sites, sometimes crossing state lines . . . carry[ing] heavy bundles of shingles that leave their arms shaking . . . [to] work through heat waves on black-tar rooftops that scorch their hands.”12 Studies have shown that roofing is among “the most dangerous job[s] for minors . . . [o]ne slip can be fatal.”13 Many migrant children work long, overnight shifts, in part, so that they can attend school during the day, which is a federal government requirement that sponsors of unaccompanied minors must agree to fulfill.14 Even when they make it to school, they 9. See Alone and Exploited, supra note 7. 10. Id. 11. See Children Risk Their Lives, supra note 8. 12. Id. (“Roofing is particularly risky; it is the most dangerous job for minors other than agricultural work, studies show.”). 13. Id. (“About 100 roofers are killed on the job each year, most often in falls, according to the Department of Labor. The government does not publish data about injuries or fatalities among child roofers—a category of workers that is not supposed to exist.”). 14. See Alone and Exploited, supra note 7; Hannah Dreier, The Kids on the Night Shift, N.Y. TIMES MAG. (Sept. 20, 2023) [hereinafter The Kids on the Night Shift], [https://perma.cc/4F6H-2DDB]; Plyler v. Doe, 457 U.S. 202, 221-23, 230 (1982) (recognizing undocumented children’s constitutional right to attend public school free of charge). 6.MILCZAREK-DESAI.MAN.FIN (3) (DO NOT DELETE) 7/7/2024 8:21 PM 348 ARKANSAS LAW REVIEW Vol. 77:2 have trouble focusing and struggle because it is impossible to stay awake to learn, especially in a foreign language, after working all night in intense jobs that require manual labor, repetitive motion, and constant vigilance to prevent bodily injury.15 Often, migrant children drop out of school, but they do so reluctantly because they know that learning English can help them obtain better, less physically demanding, jobs.16 Cristian, who has been working in construction, is remiss that he has not attended school in two years.17 Another child, Kevin Tomas, began working at an auto parts manufacturer for Ford and General Motors at age thirteen where “he struggled to lift the heavy boxes” and when “his shift ended at 6:30 in the morning . . . he could not stay awake in school” even though he wished otherwise.18 Carolina, who works the night-shift stuffing “a sealed plastic bag of cereal into a passing yellow carton” in ten-second increments, manages to attend school but reported to Drier that “[s]ometimes I get tired and feel sick” after she leaves her night shift and that “[h]er stomach often hurt” while she was at school.19 Public school teachers in English Language Learner programs across the country have noticed that many if not most of their students work long hours when they are not in school.20 One teacher who routinely sees “the toll that long shifts take on his students,” stated that a girl in his class “was working nights at a commercial laundry, [and] began passing out in class from fatigue and was hospitalized twice.”21 She eventually dropped out of school because she could not keep working and learning—and she had to choose work. This is a common refrain among migrant child workers who are bewildered to learn how much it 15. See Alone and Exploited, supra note 7. 16. See Stephanie L. Canizales, Work Primacy and the Social Incorporation of Unaccompanied, Undocumented Latinx Youth in the United States, 101 SOC. FORCES 1372, 1384-85 (2022). 17. Alone and Exploited, supra note 7. 18. Id. 19. Id. 20. Id. 21. Id. 6.MILCZAREK-DESAI.MAN.FIN (3) (DO NOT DELETE) 7/7/2024 8:21 PM 2024 (HIDDEN) IN PLAIN SIGHT 349 costs to “simply live[] in the United States.”22 One thirteen-year-old, Jose Vasquez, who works twelve-hour shifts, six days a week, stated to Drier, “I didn’t get how expensive everything was . . . I’d like to go to school, but then how would I pay rent?”23 Kevin Tomas added to Jose’s sentiment saying, “[i]t’s not that we want to be working these jobs. It’s that we have to help our families.”24 Being unable to earn an education, however, pales in comparison to the injuries—and in some cases deaths—that have befallen migrant children who work in extremely hazardous jobs and industries. The factory work that Carolina engages in, for example, is extremely dangerous “with fast-moving pulleys and gears that ha[ve] torn off fingers and ripped open a woman’s scalp.”25 A fourteen year-old boy, Marcos, nearly lost an arm while working for a janitorial company that cleans a chicken processing factory owned by Tyson Foods.26 Marcos had been working overnight shifts cleaning the factory since he was thirteen.27 A fifteen-year old boy, Antoni, fell almost thirty feet 22. Canizales, supra note 16, at 1382 (In one study, a former migrant child worker, Carlos, “did not anticipate how quickly expenses would accumulate . . . [t]o his surprise, people ‘buy everything here,’ including the water they drink.”). 23. Alone and Exploited, supra note 7. 24. Id. 25. Id. 26. The Kids on the Night Shift, supra note 14. Dreier’s reporting is sometimes gruesome and purposefully so. Reporting on Marcos’s injury, she wrote: After he finished hosing down the machines, he started scrubbing blood and fat off the steel parts with chemicals that, if they hit skin, created welts that could take months to heal. Shortly after 2:30 a.m., he thought he saw a bit of torn rubber glove within the conveyor belt of the deboning area and reached in to grab it. Suddenly, the machine came to life. Across the factory, another worker had failed to see Marcos crouched with his left arm deep inside the assembly line and turned it on. The belt caught the sleeve of Marcos’s baggy jacket and pulled him across the floor. Hard plastic teeth ripped through his muscles, tearing open his forearm down to the bone. By the time someone heard his screams and shut off the power, his arm was limp, a deep triangular gash running down the length of it. A rope of white tendons hung from his elbow to his wrist, horrifying the workers who gathered around him. He understood from their faces that something was badly wrong but didn’t feel any pain as the wound began gushing blood and he started to lose consciousness. Id. 27. Id. 6.MILCZAREK-DESAI.MAN.FIN (3) (DO NOT DELETE) 7/7/2024 8:21 PM 350 ARKANSAS LAW REVIEW Vol. 77:2 while working as a roofer on a beach house in South Carolina.28 Miraculously, he survived but sustained severe brain injuries that have left him unable to perform basic daily tasks.29 The horrific stories do not end.30 Edwin, a fourteen-year-old food delivery worker, was killed when hit by a car on his bike at a Brooklyn intersection; Oscar, a sixteen-year-old, was crushed under a thirty-five-ton tractor-scraper outside Atlanta while working in a construction job; Juan, a fifteen-year-old laying shingles on a roof, fell fifty feet to his death on his first day on the job; Andrés, sixteen-years-old and Crisanto, seventeen-years-old, both died while working as roofers—one from a fall and the other from being electrocuted.31 Since 2017, the New York Times has unearthed at least a dozen such cases, but more recent information is unavailable because the Department of Labor (“DOL”) has not reported on work-related deaths for the past five years.32 Dreier’s reporting demonstrates that migrant child labor permeates supply chains throughout the United States, including those necessary for the production of beloved American goods such as Cheerios, Lucky Charms, Cheetos, Fritos, J. Crew, and Fruit of the Loom.33 These popular brands, however, do not, strictly speaking, hire children in contravention of child labor laws. Instead, an elaborate scheme consisting of layers of contractors and subcontractors—what former DOL Wage and Hour Division (“WHD”) Administrator David Weil refers to as “the fissured workplace”—permit large corporations to benefit 28. Children Risk Their Lives, supra note 8 (“He was inching backward collecting shingles when he slipped and fell nearly 30 feet. He slammed into this cement patio. At the hospital, Antoni lay in a coma with severe brain trauma, breathing through a tube in his neck. His skull was fractured, a lung was punctured, and he was bleeding internally throughout his body.”). 29. Id. (“No rehabilitation facility would accept him without health insurance. Unable to speak or stand, he went back to the trailer he had been sharing with his uncle’s family.”). 30. Id. (“A 16-year-old fell off a roof in Arkansas and shattered his back. A 15-year-old in Florida was burned all over after he slipped from a roof and onto a vat of hot tar. A child in Illinois stepped through a skylight and fractured his spine . . . [o]ne 15-year-old boy from Central America who had been traveling around the country with a crew boss was abandoned last year after being injured on a work site. The boy was found alone and crying in a ditch.”). 31. Alone and Exploited, supra note 7; Children Risk Their Lives, supra note 8. 32. Alone and Exploited, supra note 7; see also National Census of Fatal Occupational Injuries in 2022, U.S. DEP’T OF LAB. (Dec. 19, 2023, 10:00 AM), [https://perma.cc/2LC7-QZ2K] (excluding workers under the age of sixteen). 33. See generally Alone and Exploited, supra note 7. 6.MILCZAREK-DESAI.MAN.FIN (3) (DO NOT DELETE) 7/7/2024 8:21 PM 2024 (HIDDEN) IN PLAIN SIGHT 351 from cheap migrant child labor while professing to abhor child labor practices.34 In other words, it is often smaller subcontractors—for example janitorial companies that clean Tyson Foods’ warehouses—that engage in the unlawful employment of migrant children, not Tyson Foods itself. The fissured workplace has long insulated America’s most powerful industries from the immigration consequences of hiring undocumented workers, and this well-worn machinery is now being employed to shield businesses from child labor violations too. The fissured workplace, though, is merely a symptom of a much larger reason that the new economy of exploitation is imperturbable to traditional calls for legal reform of child labor laws. That bigger problem is that migrant children are situated at the collision of two American legal systems that work against one another: employment and labor law on the one hand and immigration law and policy on the other.35 The former are designed to protect workers’ rights, including the rights of child workers and migrant workers, while the latter, for the most part, are designed to do the opposite by preventing adult migrant workers from lawfully entering the country. The tension inherent in this protect-prevent dyad is further exacerbated by severe labor shortages in America and massive upheavals in migrants’ home countries. This legally constructed dilemma encourages exactly the kind of oppressive child labor practices that Dreier has so deftly exposed. In this sense, American industry is not the grand villain of Dreier’s story, however tempting it may be to cast companies that profit from child labor in that light.36 Rather, this crisis is the result of decades of disharmony between U.S. 34. DAVID WEIL, THE FISSURED WORKPLACE: WHY WORK BECAME SO BAD AND WHAT CAN BE DONE TO IMPROVE IT 16-18 (2017). 35. Shefali Milczarek-Desai, Opening the Pandemic Portal to Reimagine Paid Sick Leave for Immigrant Workers, 111 CAL. L. REV. 1171, 1180-91 (2023). 36. Dreier’s reporting shows that corporations and their many layers of contractors and subcontractors understand, perhaps in ways that well-meaning child labor reformers do not, how essential migrant child labor is both for the American economy as well as for migrant children themselves. See The Kids on the Night Shift, supra note 14; Alone and Exploited, supra note 7. 6.MILCZAREK-DESAI.MAN.FIN (3) (DO NOT DELETE) 7/7/2024 8:21 PM 352 ARKANSAS LAW REVIEW Vol. 77:2 immigration law and policy and U.S. employment and labor laws.37 The twenty-first century version of oppressive child labor will not be resolved by wholesale adoption of the rhetoric and action used to combat child labor in the nineteenth and twentieth centuries, which relied on child labor laws that were never intended to protect the migrant children who are at the center of today’s crisis.38 Since Dreier’s articles were published, however, that is exactly what has happened. Outraged by the level and scope of the migrant child labor crisis, law and policymakers have called for the immediate abolishment of oppressive child labor through enhancement of child labor laws, increased enforcement of existing laws, and harsher penalties for those who violate them.39 Not only have these traditional proposals failed to help migrant children, they threaten to make their situation worse.40 As demonstrated by Dreier’s reporting, employers who are caught violating child labor laws initially terminate all minors working in violation of the law, only to re-hire them once the enforcement storm has passed.41 Even when an employer refuses to re-hire a migrant child worker, the child—desperate for work—subsequently finds equally if not more dangerous work deeper in the shadow economy that is even less likely to be regulated by child labor laws.42 Thus, addressing the contemporary migrant child labor crisis will require more than lop-sided efforts to strengthen child labor laws that are incapable of wide-scale enforcement and constantly undermined by much more powerful anti-immigration laws and policies. To be effective, responses to the migrant child labor crisis must take migrant children’s lived realities into consideration. Unlike the oppressive child labor of the past two centuries, the 37. Milczarek-Desai, supra note 35, at 1180-81. 38. See infra Section I.A. 39. Hannah Dreier & Luke Broadwater, Lawmakers Clamor for Action on Child Migrant Labor as Outrage Grows, N.Y. TIMES (Mar. 3, 2023), [https://perma.cc/LT94-L8UL]; Protecting Children Act, H.R. 4440, 118th Cong. (2023) (“To protect children from oppressive child labor and unsafe workplaces, and for other purposes.”). 40. The Kids on the Night Shift, supra note 14; Children Risk Their Lives, supra note 8. 41. The Kids on the Night Shift, supra note 14. 42. Id. 6.MILCZAREK-DESAI.MAN.FIN (3) (DO NOT DELETE) 7/7/2024 8:21 PM 2024 (HIDDEN) IN PLAIN SIGHT 353 new economy of exploitation is built around unaccompanied minors, mostly from Central America.43 They fled homelands where they and their families can no longer survive due to corrupt or impotent governments, famine, violence, and/or climate change.44 They made the arduous and dangerous journey north at the mercy of smugglers whom their families took on massive amounts of debt to pay.45 They entered the United States alone under the auspices of so-called humanitarian immigration policies and, as soon as they were released to sponsors, began searching for work so that they could send money back to help desperate families.46 These children occupy a new position of precarity—one that is born at the intersection of migration and labor at a moment when the country is riddled with anti-immigration sentiment alongside an insatiable demand for low-wage labor. While significant legal literature analyzes child labor in the United States, no previous legal scholarship discusses the current migrant child labor crisis. As the first to do so, this Article situates the new economy of exploitation at the confluence of migration and labor to analyze why traditional calls for child labor law reforms cannot successfully address this crisis. This Article then offers a different legal framework—one that centers migrant children’s experiences as children, migrants and low-wage workers—to chart a multi-faceted course that might realistically address the challenges faced by migrant child workers who are precariously perched at the intersection of migration and labor. This Article proceeds in the following parts. Part I presents the tumultuous history of child labor regulation in the United States—a history that provides clues as to why contemporary child labor laws fall far short of comprehensively addressing oppressive, migrant child labor. It 43. Alone and Exploited, supra note 7; The Kids on the Night Shift, supra note 14. 44. Alone and Exploited, supra note 7; The Kids on the Night Shift, supra note 14; see also Deborah Levison, Thoughts on the Regulation of Child Labor in Agriculture, 21 U.C. DAVIS J. INT’L L. & POL’Y 81, 82 (2014) (predicting that climate change will force children to migrate in search of work). 45. Alone and Exploited, supra note 7; The Kids on the Night Shift, supra note 14. 46. Alone and Exploited, supra note 7; The Kids on the Night Shift, supra note 14; 8 U.S.C. § 1232(c)(1) (2018) (Government agencies “shall establish policies and programs to ensure that unaccompanied alien children in the United States are protected from traffickers and other persons seeking to victimize or otherwise engage such children in criminal, harmful, or exploitative activity . . . .”). 6.MILCZAREK-DESAI.MAN.FIN (3) (DO NOT DELETE) 7/7/2024 8:21 PM 354 ARKANSAS LAW REVIEW Vol. 77:2 then pivots to the contemporary child labor crisis by describing the new economy of exploitation and the unaccompanied migrant children upon which it relies. This Part highlights the similarities and differences between the old and new forms of oppressive child labor to aid in Part II’s evaluation of the efficacy of existing child labor laws to address current child labor issues. Part II sets forth the current U.S. legal landscape surrounding child labor laws, including these laws’ failure to protect migrant children. Drawing a parallel between immigrant and migrant (“im/migrant”) workers’ struggles to access employment and labor law protections and unaccompanied minors’ inability to benefit from child labor laws, this Part locates migrant children at the intersection of migration and labor to demonstrate the laws’ inability to protect them.47 Next, Part II surveys the existing legal literature on the topic of child labor and evaluates the recommendations for reform set forth therein. It concludes that these proposals do not satisfactorily address the situation of migrant child workers, most of whom enter the United States alone in search of work, and in fact might worsen their predicament. Part III posits a new legal framework for understanding and analyzing migrant child labor that considers migrant children’s lived realities and utilizes the theory of work primacy from cultural sociology. It argues for centering migrant child workers’ experiences in order to make meaningful legal recommendations. This Part draws on international child labor scholarship as well as qualitative interviews of former migrant child workers. Part III then outlines a multi-pronged approach that might be used to holistically address the predicament of migrant children who cross into the United States for the express purpose of working and who have no choice but to work.48 This Article concludes by exhorting contemporary child labor reformers not to fall into the trap of earlier counterparts who pursued one-size-fits-all legislation to abolish child labor without 47. Milczarek-Desai, supra note 35, at 1218 Appendix A. 48. Alone and Exploited, supra note 7; The Kids on the Night Shift, supra note 14 (describing the various reasons migrant children must work, including to pay off debts to smugglers; send remittances to support desperate families in their countries of origin; and pay for rent, food, and clothing in order to survive in the United States). 6.MILCZAREK-DESAI.MAN.FIN (3) (DO NOT DELETE) 7/7/2024 8:21 PM 2024 (HIDDEN) IN PLAIN SIGHT 355 considering the on-the-ground consequences these laws would have on the children they hoped to protect. This will require more research and data than we currently have regarding unaccompanied migrant children, their needs, and their experiences in their countries of origin as well as in the United States. I. CHILD LABOR IN AMERICA THEN AND NOW Before analyzing the current migrant child labor landscape, it is imperative to understand America’s tumultuous history of child labor regulation because it illuminates the shortcomings baked into existing legal structures that impact the law’s ability to address today’s crisis. This, in turn, necessitates reviewing the complex and multi-layered social, economic, and legal milieu that existed from the passage of the first state child labor laws in the early 1800s to the enactment of national child labor standards through provisions of the FLSA in the late 1930s. A. Child Labor in Historical Perspective Child labor is as old as the United States, and, consequently, so is the debate over whether, and if so how, child labor should be regulated to safeguard young workers who are otherwise at risk of exploitation.49 The widespread acceptance of child labor was a concept imported from England during the colonial era and viewed as a moral good necessary for a young nation’s economic growth and to further a Puritan ethos that extolled the virtues of work while preventing the societal burdens of pauperism.50 Framing child labor as a moral virtue also furthered the significant economic value child labor held for America’s largest early industries such as cotton spinning, textile manufacturing, and, of 49. JOHN A. FLITER, CHILD LABOR IN AMERICA: THE EPIC LEGAL STRUGGLE TO PROTECT CHILDREN 12 (2018) (“Anyone who studies child labor acknowledges that throughout history, in every region of the world, children have labored. The history of the United States offers no exception. From the colonial period through the present, kids in America have always worked.”); BETSY WOOD, UPON THE ALTAR OF WORK: CHILD LABOR AND THE RISE OF A NEW AMERICAN SECTIONALISM 2 (2020) (“child labor in America can be traced back to colonial child apprenticeship, the Poor Law in England, and the Puritan ethic of virtuous work”). 50. FLITER, supra note 49, at 12. 6.MILCZAREK-DESAI.MAN.FIN (3) (DO NOT DELETE) 7/7/2024 8:21 PM 356 ARKANSAS LAW REVIEW Vol. 77:2 course, agriculture.51 Children not only had small, nimble hands and fingers necessary for some of these jobs, but they also constituted cheap labor that could be paid orders of magnitude less than adult workers.52 Moreover, children were often obedient workers who were less likely to protest dismal working conditions and low pay, especially since many of them were being sent to work by their parents.53 Having become an integral component of the American economy early on, child labor exploded exponentially with the advent of the nineteenth century’s Industrial Revolution. There were two interrelated reasons for this. First, large corporate industries such as “railroads, steel, oil, mining, meat packing,” and food production grew more powerful and prevalent during this period and began relying on the cheap labor of children from poor families who had no choice but to require all family members, including children sometimes as young as four, to work and earn an income to support the family.54 Second, the Industrial Revolution drew large numbers of poor European immigrants to the United States, and, since public assistance programs did not exist at the time, immigrant children’s labor was necessary for the survival of entire immigrant households.55 Indeed, child labor in 51. Id. at 17-18. 52. Id. at 18 (For instance, “the father of American manufacturing initially employed children between seven and twelve years old to work at his Rhode Island mill, and by 1800 he employed over a hundred children in his factory.”) (internal quotations omitted). 53. Id. at 41. However, there are instances in U.S. history where child workers protested their work conditions such as when girls who worked in cotton mills staged some of the first strikes in that industry in the 1830s. Id. at 19. 54. FLITER, supra note 49, at 3, 23-24, 26. The breadth of work children performed during this time period was astounding—they “labored as tinsmiths, paint scrapers, blacksmith shop assistant, breaker boys, errand boys, engravers, cigar makers, porters, office boys, finishers for dresses and coats, and wagon drivers. They worked at sewing machine, insect powder, ink, and twine factories” as well as hundreds of other jobs. Id. at 23-24. A New York Times editorial from 1871 stated “that nearly two thousand children under fifteen, with some as young as four, were found working in tobacco factories.” Id. at 24; see also Symore Moskowitz, Save the Children: The Legal Abandonment of American Youth in the Workplace, 43 AKRON L. REV. 107, 132 (2010) (“Massachusetts passed [a] child labor law in 1836 and an asymmetrical web of state laws spread during the next 100 years.”) (internal citations omitted). 55. FLITER, supra note 49, at 3-4, 23-24 (“Mass immigration . . . brought millions of poor Irish, French Canadians, Germans, Poles, Italians, and other ethnic groups into the industrial cities of the Northeast and Midwest as a cheap source of labor.”) (reports by officials inspecting factories after some child labor laws were passed revealed that large numbers of factory workers were immigrant children); WOOD, supra note 49, at 10. 6.MILCZAREK-DESAI.MAN.FIN (3) (DO NOT DELETE) 7/7/2024 8:21 PM 2024 (HIDDEN) IN PLAIN SIGHT 357 America quickly became synonymous with the dismal conditions that had once existed in Dickens’s England.56 The earliest movements against child labor in the United States arose in New England and focused on the harm that excessive work did to children, including that “long hours at arduous tasks injured the health and education of future citizens.”57 It was the second part of this argument—that work interfered with children’s education, leading to an illiterate and uneducated populace that could not meaningfully participate in the nation’s democracy—that became the focus of early child labor law advocates.58 Reformers pointed to findings that thousands of child laborers could not write, read, articulate facts about the world beyond their homes and jobs, or demonstrate a basic working knowledge of American history.59 In this way, early condemnations of child labor went hand-in-hand with the movement to increase mandatory education for children because children’s work hours had to be limited so they could attend school. This resulted in the first so-called child labor law in the country, introduced in Connecticut in 1813 by a former revolutionary war officer who owned a mill, mandating that employers “provide schooling for their young employees and made factory owners responsible for the moral education of their [child] workers.”60 Similar sentiments were echoed by officials and reformers throughout New England during the early to mid-1800s, and “[t]heir efforts helped secure the first compulsory school attendance laws” in the nation.61 56. FLITER, supra note 49, at 23. 57. Id. at 20. Southern child labor reformers existed too, and they often referred to child labor as “white child slavery” given that black children (and adults) were not permitted to work in many of the mills and factories that employed white children due to segregation. Id. at 24. 58. Id. at 20 (“Some of the earliest calls for reform noted that child labor resulted in masses of illiterate children who, when grown to adulthood, would not be able to contribute to representative democracy.”). These fears continued throughout the Nineteenth Century, with the New York Times in 1871 warning that “poor working children will ‘swell the great mass of ignorant voters who now threatens the very structure of our society.’” Id. at 24. 59. Id. at 24-25. Some children even believed that “the world might be a hundred miles long.” Id. at 24. 60. Id. at 20. 61. FLITER, supra note 49, at 21. 6.MILCZAREK-DESAI.MAN.FIN (3) (DO NOT DELETE) 7/7/2024 8:21 PM 358 ARKANSAS LAW REVIEW Vol. 77:2 Child labor laws followed close behind school attendance laws and sought to address several issues at once: setting a minimum working age, curtailing the number of hours children could work by creating a maximum work hours requirement, and ensuring children’s safety and health by prohibiting certain types of work altogether.62 From 1848 to 1857, Pennsylvania enacted a law stating that children younger than twelve could not work in mills and factories, New Jersey created a ten-year age limit for manufacturing, Rhode Island legislated that children younger than twelve could not work in factories, and Connecticut set the minimum age for factory and manufacturing work at ten years of age.63 By the time the Civil War began in 1861, seven states had also legislated the maximum number of hours children could work and typically restricted children to work “twelve- to thirteen-hour days, six days a week.”64 Although this amount of work may seem excessive by today’s standards, it was a radical departure from the custom at the time, as evidenced by the fact that both parents and employers regularly violated these laws by requiring under-age children to work more hours than they were permitted often in jobs that were considered unsafe and unfit for children.65 Indeed, this uneven patchwork of state child labor laws, mostly confined to New England, were largely ineffective due in large part to a near-total lack of enforcement.66 This was not surprising given that states did not yet have “professional administrative system[s]” for labor enforcement and instead left enforcement up to individuals through private lawsuits.67 Because poor parents often required their children to work, they were unlikely to sue employers who employed their children in contravention of child labor legislation.68 Employers not only 62. Id. 63. Id. at 21-22. 64. Id. at 22. The concept of child protection laws also did not arise until this time period. Howard Markel, Case Shined First Light on Abuse of Children, N.Y. TIMES (Dec. 14, 2009), [https://perma.cc/D86S-4C99] (reporting on the first child abuse case to result in legal action in New York in 1874). 65. FLITER, supra note 49, at 22. 66. Id. at 7; WOOD, supra note 49, at 88. 67. FLITER, supra note 49, at 7, 21. 68. Id. at 26. 6.MILCZAREK-DESAI.MAN.FIN (3) (DO NOT DELETE) 7/7/2024 8:21 PM 2024 (HIDDEN) IN PLAIN SIGHT 359 had little to no impetus to comply with child labor laws, they had large incentives to violate them because, as they regularly complained, they experienced steep losses in market share given that many states—especially those in the South—freely used child labor to their economic benefit due to the absence of child labor regulations in those states.69 This meant that despite early child labor laws, child labor thrived in the United States as underscored by the 1880 census, which found that the American workforce was comprised of approximately 1.1 million children ages ten to sixteen, or one out of every sixteen workers.70 By the early 1900s, child labor reformers, acknowledging that child labor laws limited to northern states were ineffective in combatting child labor, coalesced into a national movement by forming the National Child Labor Committee (“NCLC”).71 Importantly, the NCLC initially pledged not to advocate for a national child labor law due to strong objections within its ranks to federal interference with local governance.72 The stated purpose of the early national movement against child labor was “‘not to advance federal legislation’ but ‘to aid in creating and interpreting a national sentiment upon the subject of child labor’ that could become ‘operative under local conditions and through the specific laws of each of our several States.’”73 In other words, the NCLC’s more progressive members, many of whom hailed from northern abolitionist families, tacitly agreed not to challenge members who vehemently objected to federal interference with the “new ‘Southern way of life.’”74 This is where the story of America’s child labor laws takes an unexpected turn. 69. Id. at 25. 70. Id. (this number was admittedly an undercount since children under ten years of age who worked were not part of the census figures). Additionally, even Northern states “with child labor laws on the books [were] . . . full of loopholes, and not strictly enforced.” Id. at 43. For example, “[t]he word ‘knowingly’ was inserted into many state child labor laws, providing additional indemnity for employers.” WOOD, supra note 49, at 88. 71. WOOD, supra note 49, at 71. 72. Id. at 72 (stating that Edgar Murphy, the “‘founder and father’ of the NCLC was insistent that ‘national’ did not mean ‘federal’ . . . [t]he national committee was ‘not to act as a substitute for State committees nor to cross the lines of local initiative; but to serve in relation to existing committees as a clearing house of information and suggestion’”). 73. Id. 74. Id. at 72-73. 6.MILCZAREK-DESAI.MAN.FIN (3) (DO NOT DELETE) 7/7/2024 8:21 PM 360 ARKANSAS LAW REVIEW Vol. 77:2 The NCLC framed child labor as the “new ‘white child slavery,’” stating that dismal working conditions in factories and mills oppressed poor white children by threatening their health, robbing them of an education, and stunting their physical and mental development.75 Although reformers targeted industries that relied heavily on child labor in both northern and southern states, they were especially critical of southern states, most of which lacked child labor regulations.76 In an attempt to shame the South and its industries into curbing child labor, the NCLC took the view that child labor was “a crisis of white racial deterioration,” and stoked Jim Crow fears by warning that permitting poor white children to work in abysmal conditions would allow black children and communities to gain advantages over whites.77 The “‘founder and father’ of the NCLC,” Edgar Murphy, a pastor from Montgomery, Alabama, openly “spoke and wrote about the necessity for Jim Crow even as he forged alliances with the most prominent ‘Progressive’ reformers from the North over the issue of child labor.”78 A popular article at the time echoed the NCLC’s discourse by stating that the “future strength of the nation was under threat” as a result of white child labor and “North and South had ‘banded [together]’ to ‘save the [white] children of the nation.’”79 By framing child labor in this way, reformers also “linked the physical, mental, and spiritual degeneration of [white] child laborers with the fate of American civilization,” implying that if the nation did not eradicate white child slavery, it would negatively impact the “superiority of American values, the 75. Id. at 95. 76. WOOD, supra note 49, at 87. 77. Id. at 4, 63. The NCLC went so far as to support the book Children in Bondage, which argued that “the South’s new ‘white child slavery’ was worse than the South’s old slavery . . . describ[ing] the ‘negro of the old days’ as ‘well fed and sure of shelter,’ ‘singing as he toiled,’ and ‘finding time to weave . . . a poetic folklore,’ whereas the new white slavery ‘suck[ed] life dry of all vigor and joy.’” Id. at 95. 78. Id. at 72-73. Murphy’s crusade against white child labor began after he toured Montgomery’s cotton mills and was “[s]hocked by the number of poor white children working at the mills.” Id. at 51. 79. Id. at 77. 6.MILCZAREK-DESAI.MAN.FIN (3) (DO NOT DELETE) 7/7/2024 8:21 PM 2024 (HIDDEN) IN PLAIN SIGHT 361 Christian faith, and the Anglo-Saxon race.”80 This concern was especially salient at the turn of the twentieth century when America was engaged in empire building through the Spanish-American War and other colonial enterprises.81 The NCLC’s rhetoric resonated strongly with imperialist-minded politicians, including President Theodore Roosevelt, who became an honorary member of the NCLC and spoke out against child labor even though he did not, at least initially, support the creation of federal legislation to eradicate it.82 The strongest political voice against child labor was Senator Albert J. Beveridge from Indiana, who was “one of the best known and most outspoken imperialists in the US Congress.”83 Consistent with the NCLC’s arguments, Beveridge’s condemnation of child labor was infused with “a concern for the strength of the so-called American race” and a conviction that child labor should be eliminated through federal legislation.84 Moreover Beveridge, who had worked on earlier laws like the Meat Inspection Act that permitted federal regulation of state activity through the Constitution’s Commerce Clause, believed that child labor, like meat processing, could be regulated on a federal level in a constitutional manner.85 In 1906, Beveridge, 80. Id. at 74, 76; FLITER, supra note 49, at 51 (stating that it was believed that “[c]hild labor . . . stunted the physical and intellectual growth of children, which in turn produced future generations of degenerates that threatened the health of the nation”). 81. WOOD, supra note 49, at 78, 79; FLITER, supra note 49, at 51; see also Daniel Immerwahr, How the U.S. Has Hidden Its Empire, THE GUARDIAN (Feb. 15, 2019, 1:00 AM), [https://perma.cc/JWL8-ZXYC] (“At the turn of the 20th century, when many were acquired (Puerto Rico, the Philippines, Guam, American Samoa, Hawaii, Wake), their status was clear. They were, as Theodore Roosevelt and Woodrow Wilson unabashedly called them, colonies.”). 82. FLITER, supra note 49, at 51; WOOD, supra note 49, at 78, 82 (Although Roosevelt decried child labor, he was wary of meddling in what he considered to be states’ duties and stopped short of supporting federal legislation regulating child labor). 83. FLITER, supra note 49, at 50-51; WOOD, supra note 49, at 78. Indeed, “framing the national child labor problem in popular discourse resonated with questions of race, empire, and civilization that Beveridge had been interested in for years.” WOOD, supra note 49, at 79. 84. FLITER, supra note 49, at 51; WOOD, supra note 49, at 79. For example, Beveridge “made an appeal to white racial solidarity: the white race could not ‘keep superior by asserting superiority . . . the South is face to face with the situation of their white children in the mills and their black children in the schools.’” WOOD, supra note 49, at 82. 85. WOOD, supra note 42, at 79; FLITER, supra note 49, at 50, 54, 60 (given staunch states’ rights defenders in Congress during the post-Reconstruction Era, Beveridge was well aware that federal legislation must be firmly located within the Constitution so as not to be considered an unlawful overreach of federal power—for example, the Meat Inspection Act, 6.MILCZAREK-DESAI.MAN.FIN (3) (DO NOT DELETE) 7/7/2024 8:21 PM 362 ARKANSAS LAW REVIEW Vol. 77:2 along with his counterpart in the House, Henry Parsons, introduced the “Beveridge-Parsons Bill”—it was the first law to propose regulation of child labor on a federal level.86 Thus, the movement that ultimately resulted in the first federal attempt to regulate child labor was firmly rooted in the belief that poor white children must be freed from oppressive labor so that they may thrive and take their proper place in American society in order to preserve the racialized hierarchy of the nation.87 The Beveridge-Parsons Bill, however, was doomed to fail. Southern senators stood firmly against federal child labor regulations, which they characterized as unlawful incursions of federal authority into purely local matters.88 Others, including President Roosevelt, refused to back the bill for fear that it was an unconstitutional exercise of congressional power and might be struck down by the Lochner Era Supreme Court.89 By 1908, the Beveridge-Parsons Bill was dead and for almost a decade after, no serious attempt was made to enact federal child labor legislation.90 which created federal oversight of the entire nation’s meat processing industry, banned interstate shipment of uninspected meat thereby placing the law within Congress’s Commerce Clause power). 86. WOOD, supra note 49, at 79-80; FLITER, supra note 49, at 52-54. Like the Meat Inspection Act, the Beveridge Bill “prohibited common carriers (railroads and steamboats) from transporting the products of factories and mines unless the business owners could produce a certificate stating that no child under fourteen years of age was employed at the establishment.” FLITER, supra note 49, at 52. The NCLC was divided on the Beveridge Bill given their earlier agreement not to pursue federal legislation in support of their southern members’ dedication to state’s rights; in the end, however, the NCLC endorsed the law over the objection of Edward Murphy, who resigned from the organization as a result. WOOD, supra note 49, at 80; FLITER, supra note 49, at 51, 56. 87. WOOD, supra note 49, at 77, 82 (“Echoing the discourse of NCLC reformers,” an article indicting child labor published in 1906 “created a stir” by stating that, “[t]hese are not the children of recent immigrants . . . nor are they negro children . . . [t]hey are white children of old and pure colonial stock” who are being “starved, stunted, and stunned”). 88. FLITER, supra note 49, at 59-64; WOOD, supra note 49, at 82. 89. FLITER, supra note 49, at 59, 71-72 (explaining that the U.S. Supreme Court’s decision in Lochner v. New York, 198 U.S. 45 (1905), which defended and upheld business interests against a New York law requiring maximum work hours for bakers, was viewed as potentially limiting the ability to enact child labor laws). Initially, President Roosevelt’s successor, President Woodrow Wilson, similarly believed that federal child labor legislation would constitute congressional overreach and wrote that “[i]f the power to regulate commerce between the states can be stretched to include regulation of labor in mills and factories, it can be made to embrace every particular of the industrial organization and action of the country.” WOOD, supra note 49, at 90. 90. FLITER, supra note 49, at 64-65; WOOD, supra note 49, at 87. 6.MILCZAREK-DESAI.MAN.FIN (3) (DO NOT DELETE) 7/7/2024 8:21 PM 2024 (HIDDEN) IN PLAIN SIGHT 363 In the meantime, the number of children working in dangerous and dismal conditions increased. In 1912, “one million children under the age of sixteen were employed in industry . . . while another million were estimated to be working in agriculture.”91 Although there are no official records of children’s workplace injuries from this era, historians piecing together child labor in the early twentieth century have painted a grim picture in which children routinely suffered from exhaustion and injury.92 A growing national consciousness around the problems of child labor, created in part by the highly publicized debates regarding the evils of child labor that surrounded the Beveridge-Parsons Bill, led to an increase in state child labor laws.93 By 1912, “thirty-four states and the District of Columbia had established age limits, most commonly fourteen,” for children working in factories.94 Some states also prohibited children under sixteen from working at night and prevented them from working more than eight hours per day.95 These laws, however, continued to lack any meaningful enforcement and contained numerous loopholes, which kept the NCLC and their allies working towards a national solution to the child labor problem.96 After significant political debate and maneuvering, Congress finally passed the first federal law regulating child labor in the United States in 1916, known as the Keating-Owen Act.97 The Senate debate over the law’s passage focused on whether the bill “fell within the limits of the congressional power to regulate interstate commerce . . . [and specifically], [t]he crux of the debate was to what extent the commerce clause gave Congress the power to regulate capitalism on the basis of morality.”98 By 91. WOOD, supra note 49, at 88. 92. Alan Derickson, Making Human Junk: Child Labor as a Health Issue in the Progressive Era, 82 AM. J. OF PUB. HEALTH 1280, 1281-82 (1992). 93. WOOD, supra note 49, at 86, 88. 94. WOOD, supra note 49, at 88; see FLITER, supra note 49, at 69 (“From 1902 to 1909, forty-three states passed significant child labor legislation, either new laws, including in southern states, or strengthening existing statutes.”). 95. WOOD, supra note 49, at 86. 96. Id. at 88, 89; FLITER, supra note 49, at 69 (commenting that state laws “varied widely . . . in their stringency and enforcement” and contained numerous exemptions that “seriously weakened the fourteen-year minimum” requirement). 97. FLITER, supra note 49, at 86; WOOD, supra note 49, at 101. 98. WOOD, supra note 49, at 101. 6.MILCZAREK-DESAI.MAN.FIN (3) (DO NOT DELETE) 7/7/2024 8:21 PM 364 ARKANSAS LAW REVIEW Vol. 77:2 this point, few politicians disputed that “child labor was an ‘evil’ that should be regulated in some manner” but senators vehemently argued over whether that evil “had already been committed before the interstate transport had taken place or whether interstate transportation should be considered a ‘necessary instrument’ that enabled that evil.”99 After President Woodrow Wilson signed the bill into law, the Democratic Party to which he belonged “distributed placards that read: ‘Lincoln freed the slaves; Wilson freed the children.’”100 This rhetoric mirrored the concerns animating supporters of the earlier Beveridge-Parsons Bill. One popular publication supporting a national law unabashedly stated that the children who would benefit from child labor regulation “are not the children of recent immigrants . . . . Nor are they negro children who have shifted their shackles from field to mill. They are white children of old and pure colonial stock.”101 In this way, the nation’s first law regulating child labor continued to be motivated by a desire to safeguard America’s racial hierarchies by providing protections, first and foremost, to poor, white children.102 Despite the persuasive power of the moral argument against white child labor, the drafters of the Keating-Owen Act knew they would likely face constitutional challenges in court.103 For this reason, they chose to indirectly regulate child labor through the Constitution’s Commerce Clause, which gives Congress the authority to regulate interstate commerce.104 Specifically, the law prohibited companies from shipping their products across state lines if those products were made by children in contravention of the law’s requirements.105 The law forbade factories, mills, and canneries from employing children under the age of fourteen and prohibited other manufacturers from employing children between 99. Id. at 101-02. 100. Id. at 102. 101. Id. at 94. 102. Id. at 94-102. 103. WOOD, supra note 49, at 101; FLITER, supra note 49, at 88. 104. H.R. 8234, 64th Cong. (1916). 105. FLITER, supra note 49, at 87; WOOD, supra note 49, at 101. 6.MILCZAREK-DESAI.MAN.FIN (3) (DO NOT DELETE) 7/7/2024 8:21 PM 2024 (HIDDEN) IN PLAIN SIGHT 365 fourteen and sixteen years of age for more than eight hours of work per day, six days a week, or at night.106 Perhaps most concerning to states’ rights advocates, the law also authorized the Secretary of Labor to enter and inspect any workplace covered by the law, seize any products made in violation of the law within thirty days of entering interstate commerce, and impose civil fines of $200 to $1,000 as well as criminal penalties that could result in up to three months’ worth of imprisonment.107 During the time the law was in effect, officials inspected over seven-hundred factories, mills, and mines and found almost three-hundred violations.108 Nine months after its passage, however, the Keating-Owen Act was struck down as unconstitutional by the U.S. Supreme Court in Hammer v. Dagenhart.109 At issue in Hammer v. Dagenhart was whether the Commerce Clause permitted Congress to regulate child labor that occurred in the states.110 The lawsuit was filed by a father in North Carolina who worked in a cotton mill alongside his thirteen- and fifteen-year-old sons.111 Mr. Dagenhart, supported by the Southern Cotton Manufacturers, argued that as a man of modest means, he needed his sons to work in the cotton mill in order to support their family, but that the law prevented his younger son from working at all and limited his older son from working more than eight hours per day.112 In a 5-4 decision, the Court held that while the law’s limits on child labor were in the public’s interest, they were an unlawful exercise of congressional authority because the making or production of goods did not, in and of itself, implicate interstate commerce.113 The Court contrasted earlier commerce clause legislation it had upheld by stating that in those cases, the actual goods being 106. FLITER, supra note 49, at 87. 107. Id. at 87 (the law was enforced by the Child Labor Division of the Children’s Bureau). 108. Id. at 88 (additionally, “[c]lose to one thousand children were discovered working more than eight hours a day”). 109. Hammer v. Dagenhart, 247 U.S. 251 (1918). 110. Id. at 269. 111. FLITER, supra note 49, at 88. 112. Id. at 88; WOOD, supra note 49, at 106. 113. Hammer, 247 U.S. at 272. 6.MILCZAREK-DESAI.MAN.FIN (3) (DO NOT DELETE) 7/7/2024 8:21 PM 366 ARKANSAS LAW REVIEW Vol. 77:2 transported—such as alcohol, lottery tickets, or prostitutes—were harmful whereas in the case of goods made by unlawful child labor, “[t]he goods shipped are themselves harmless.”114 The Court distinguished the previous cases because there “the use of interstate transportation was necessary to the accomplishment of harmful results,” but that was not the case here because goods made by children were not in and of themselves harmful once they were shipped through interstate commerce.115 In other words, the Court opined that the harm that Congress sought to address through the Keating-Owen Act—child labor—occurred before the goods regulated by the law were placed within the stream of commerce, setting those goods outside the purview of the Constitution’s Commerce Clause. In its closing salvo, the Court harshly admonished Congress for usurping a “purely state authority,” invoking the Tenth Amendment’s reservation of powers to the states that are not expressly delegated to the federal government.116 Legal scholars, reformers, and the media issued scathing critiques of Hammer v. Dagenhart, especially given the four-justice dissent, penned by and read from the bench by Oliver Wendell Holmes and joined by Louis Brandeis.117 In it, Holmes argued that the regulation of goods made by child labor was a matter that fit squarely within Congress’s Commerce Clause powers because “[t]he act does not meddle with anything belonging to the States” since as soon as “they seek to send their products across the state line, they are no longer within their rights.”118 Holmes also pointed to earlier legislation that the Court had upheld, including congressional acts taxing products 114. Id. at 270-72. 115. Id. at 271-72. 116. Id. at 275-76. The Court’s rebuke of Congress was just shy of hysterical: It not only transcends the authority delegated to Congress over commerce but also exerts a power as to a purely local matter to which the federal authority does not extend . . . . [I]f Congress can thus regulate matters entrusted to local authority by prohibition of the movement of commodities in interstate commerce, all freedom of commerce will be at an end, and the power of the States over local matters may be eliminated, and thus our system of government be practically destroyed. Id. at 276. 117. FLITER, supra note 49, at 91. 118. Hammer, 247 U.S. at 281. 6.MILCZAREK-DESAI.MAN.FIN (3) (DO NOT DELETE) 7/7/2024 8:21 PM 2024 (HIDDEN) IN PLAIN SIGHT 367 such as oleomargarine, to argue that it was disingenuous for the Court to say that products could not be subject to federal regulation if they were produced within and regulated by states.119 Even though Holmes’s argument did not carry the day, it contained the seedlings of the next federal attempt to regulate child labor. Soon after the decision, Representative Keating “suggested that Congress might tax goods from factories that employed children” and Congress turned to debating the use of its taxing power to do what the Commerce Clause could not.120 In February 1919, Congress passed a second law to regulate states’ use of child labor through what came to be known as The Child Labor Tax Law.121 Spurred in part by a sharp increase in child labor due to industrial needs during War World I, which the United States entered in 1917,122 the law levied “an excise tax of 10 percent on the profits derived from any mills, factories, or canneries where children under the age of fourteen had been employed during the year.”123 This law was also struck down by the U.S. Supreme Court.124 Those in favor of child labor regulation were furious at the Court, and more determined than ever to find a way to “abolish completely child labor.”125 Some of them believed that the Child Labor Tax Law case “was a blessing in disguise, since indirect methods of abolishing child labor—by means of interstate commerce or the taxing power—were actually too limited.”126 119. Id. at 278-79. 120. FLITER, supra note 49, at 94. 121. WOOD, supra note 49, at 124. 122. FLITER, supra note 49, at 96-98. 123. WOOD, supra note 49, at 124; Child Labor Tax Law, ch. 18, 40 Stat. 1138 (1919). The Child Labor Tax Law was not the only attempt to curb child labor during the war years. The War Labor Policies Board, “chaired by Felix Frankfurter, a Harvard-trained lawyer who had an established reputation as a social reformer” created a national policy whereby federal contractors could not “directly or indirectly employ child labor contrary to provisions contained in the Keating-Owen Act.” FLITER, supra note 49, at 97. 124. Child Labor Tax Case, 259 U.S. 20, 36, 39 (1922) (“The docket title of this case is J.W. Bailey and J.W. Bailey, Collector of Internal Revenue for the District of North Carolina, v. Drexel Furniture Company.”) (holding that the tax at issue was not an excise tax but a coercive measure to impermissibly regulate child labor, which the Tenth Amendment reserved to the states). 125. WOOD, supra note 42, at 125. 126. Id. at 124. 6.MILCZAREK-DESAI.MAN.FIN (3) (DO NOT DELETE) 7/7/2024 8:21 PM 368 ARKANSAS LAW REVIEW Vol. 77:2 In that spirit, reformers and activists set about to pursue what in their minds would end child labor once and for all—a constitutional amendment that unequivocally provided Congress with the constitutional authority to pass child labor legislation.127 Despite broad support, passage in both houses of Congress by large majorities, and a fifteen-year ratification run, this strategy, too, ultimately failed.128 A coalition of corporate interests including manufacturers, mill owners, agricultural businesses, small farmers, rural voters who opposed progressive reformers on a number of cultural issues,129 and southern fear of federal authority over purportedly purely local matters came together to soundly reject the amendment in every single southern state but one and even in some non-southern states such as Massachusetts.130 Although the story of child labor regulation in the United States did not end with the defeat of the Child Labor Amendment, it “signaled not only a rejection of federal authority over child labor but also the emergence of a collective resistance to the modern bureaucratic state that would persist for decades to come.”131 A version of this resistance continues to hobble child labor laws today, even though they are now ubiquitous on both federal and state levels. But to understand the contemporary plight of federal child labor laws, it is first important to understand the context in which they finally came to be—a political calculation that doomed them to limited success from the very beginning. Two forces are often cited for the eventual passage of child labor regulations within the landmark federal wage and hour legislation known as the FLSA. One was the Great Depression, which “led many [desperate] employers to replace adult workers with children,” resulting in organized labor demanding that “all 127. H.R.J. Res. 184, 68th Cong. (1923); WOOD, supra note 49, at 124-47; FLITER, supra note 49, at 124-44. 128. FLITER, supra note 49, at 124-25. 129. For instance, a major organization opposed to ratification of the Child Labor Amendment, the National Committee for the Protection of Child, Family, School, and Church, argued against “government interference with parental authority, an agrarian way of life, and religious education.” WOOD, supra note 49, at 150. 130. Id. at 145-46; FLITER, supra note 49, at 126 (stating that Arkansas was the only southern state to ratify the Child Labor Amendment). 131. WOOD, supra note 49, at 146. 6.MILCZAREK-DESAI.MAN.FIN (3) (DO NOT DELETE) 7/7/2024 8:21 PM 2024 (HIDDEN) IN PLAIN SIGHT 369 available jobs . . . go to adult workers.”132 The other was the U.S. Supreme Court’s decision to invalidate the National Recovery Administration (“NRA”), which was created through executive order by President Franklin Roosevelt as an emergency measure to provide relief from the disastrous impacts of the depression.133 After the Court struck down the NRA, an executive order that had far-reaching implications well beyond child labor regulations, Roosevelt threatened the Court with a court-packing plan that would dilute the votes of justices on the Court who regularly ruled against New Deal Era measures that Roosevelt supported.134 What followed, for reasons that historians and legal scholars continue to debate, were a series of Court decisions broadening the interpretation of Congress’ power under the Constitution’s Commerce Clause.135 Seeing this as an opportunity to finally pass federal legislation addressing workers’ rights that might survive Supreme Court review, Roosevelt and his administration worked with allies in Congress to pass the FLSA, which contained “a clause prohibiting goods produced with the labor of children under sixteen in industries engaged in or affecting interstate commerce.”136 Because the law would face staunch opposition from southern congressmen who continued to bristle at the thought of any manner of federal workers’ rights requirements, including child labor regulations, the bill had to be carefully crafted to fit within Congress’ power to regulate interstate 132. Id. at 150. 133. Id.; see also National Recovery Administration Publications, GOVINFO, [https://perma.cc/QA54-GPKZ] (last visited Mar. 12, 2024) (describing the National Recovery Administration and its publications). 134. WOOD, supra note 49, at 151 (the plan was formally known as the Judicial Procedures Reform Act). 135. Id. 136. WOOD, supra note 49, at 151; FLITER, supra note 49, at 191-92. The FLSA was upheld by the Supreme Court in United States v. Darby, 312 U.S. 100, 116, 123-24 (1941) (holding that the Tenth Amendment did not limit congressional authority under the Commerce Clause, that Congress had the power to regulate wages, work hours, and child labor that impacted interstate commerce, and overturning Hammer v. Dagenhart). Commenting on the landmark decision, Justice Harlan Fiske Stone, who authored the majority opinion, explained that Darby “was designed to make two things clear . . . (1) that the commerce power of Congress is not restricted to intrinsically harmful commodities, and (2) that the motive of Congress in passing commerce clause laws is none of the Court’s business.” FLITER, supra note 49, at 212 (internal quotations omitted). 6.MILCZAREK-DESAI.MAN.FIN (3) (DO NOT DELETE) 7/7/2024 8:21 PM 370 ARKANSAS LAW REVIEW Vol. 77:2 commerce.137 For example, with respect to child labor, the law banned companies from shipping in interstate commerce “any goods produced in an establishment” that had engaged in “oppressive child labor” within thirty days.138 Under the law, “oppressive child labor” meant non-parental employment of children under sixteen years of age in the mining and manufacturing industries.139 It did not, however, include the employment of children ages fourteen to sixteen in industries that did not “interfere with a child’s education or health and well-being,” as determined by the Children’s Bureau.140 Even so, the bill was amended many times before it passed, leading to gaping exclusions that rendered the law much less effective than its proponents had hoped at regulating workers’ rights in general.141 When it came to the FLSA’s child labor provisions, the law did not apply to businesses that did not produce goods for shipment in interstate commerce, businesses that handled, as opposed to manufactured, products made by unlawful child labor such as transportation companies, and it also exempted the agricultural industry from restrictions on employing children younger than sixteen.142 Indeed, at the time of the law’s passage in 1938, “the Children’s Bureau estimated that only one-fourth of child labor in the United States would be affected by the provisions of the FLSA.”143 The agricultural exemption, in particular, was a huge blow to child labor reformers because, at the time, that industry employed an estimated seventy percent of 137. FLITER, supra note 49, at 191-92, 201. Francis Perkins, who was President Franklin Roosevelt’s Secretary of Labor and the first woman to serve in a presidential cabinet, “reminded [the president] that the [FLSA] had been written more with an eye toward Supreme Court review rather than for the average layman.” Id. at 201. 138. 29 U.S.C. § 212(a) (1974); WOOD, supra note 49, at 151; FLITER, supra note 49, at 193, 205. 139. 29 U.S.C. § 203(l) (2018); FLITER, supra note 49, at 205. 140. FLITER, supra note 49, at 205. 141. Id. at 192-96; WOOD, supra note 49, at 151. 142. 29 U.S.C. § 212(a); WOOD, supra note 49, at 151; FLITER, supra note 49, at 205 (other industries exempted from the FLSA’s child labor provisions were domestic services, and “local service trades at laundries, hotels, restaurants, and beauty parlors”). 143. WOOD, supra note 49, at 151 (stating that the FLSA’s child labor provisions were largely seen as regulating child labor only in mines and factories); FLITER, supra note 49, at 196 (noting that “[c]hild labor in interstate commerce encompassed only about 25 percent of the children employed, excluding agriculture . . . [leaving] 75 percent of working children outside federal regulation”). 6.MILCZAREK-DESAI.MAN.FIN (3) (DO NOT DELETE) 7/7/2024 8:21 PM 2024 (HIDDEN) IN PLAIN SIGHT 371 all child workers, which also included large numbers of migrant child workers.144 Although the FLSA was eventually amended and expanded to regulate the non-agricultural employment of all children who worked “in commerce” and to include all non-agricultural goods produced by children “in commerce” (as opposed to in “interstate commerce”),145 its child labor provisions did not achieve reformers’ wish to abolish and eradicate oppressive child labor in America.146 Although there is no doubt and no dispute that the FLSA’s child labor provisions have succeeded in protecting many American children from oppressive work, it is equally true that America’s child labor laws have been flawed from the very beginning.147 As the historical record demonstrates, the nation’s child labor laws were largely born from a desire to protect white, non-immigrant children from the deleterious effects of mind-dulling and dangerous work so that they could obtain an education, enjoy their childhood, and take their rightful place in the stratified social order created by American slavery, colonialism, sectarianism, and imperialism.148 These laws were not devised with all children in mind and, as the FLSA’s gaping agricultural exemptions show, they intentionally excluded some of the most vulnerable child workers—migrant children—from their protection.149 Even when child labor regulations protected 144. WOOD, supra note 49, at 151; FLITER, supra note 49, at 196, 205 (noting that even though the FLSA technically only exempted agricultural employers from its child labor provisions if children were working during hours when they were not legally required to be in school, this requirement was practically non-existent because states often had laws that permitted children working in agriculture—whether on small family farms or large commercial farms—to be absent from school). Additionally, given the FLSA’s agricultural exemptions, “[m]igrant . . . children working in tobacco or cotton fields, where some of the worst exploitation existed, received little protection” under the FLSA. FLITER, supra note 49, at 205. 145. 29 U.S.C. § 212(c); FLITER, supra note 49, at 222. 146. FLITER, supra note 49, at 225-30 (discussing the continued use of oppressive child labor after passage of the FLSA, especially during World War II and again in the late 1980s); WOOD, supra note 49, at 152. 147. Betsy Wood, Assistant Professor of Am. Hist., Bard Coll., Regulation of Children in the Workplace Presentation at University of Arkansas Law Review Symposium: Children at Work (Oct. 13, 2023) (on file with author). 148. Id. 149. FLITER, supra note 49, at 230 (noting that “[a]griculture has always been an area with the weakest child labor protections” on both federal and state levels because in addition 6.MILCZAREK-DESAI.MAN.FIN (3) (DO NOT DELETE) 7/7/2024 8:21 PM 372 ARKANSAS LAW REVIEW Vol. 77:2 children from oppressive labor, they fell far short of doing so in large part due to the numerous compromises among Progressive Era reformers, powerful industries, and southern states’ rights advocates that ultimately shaped the laws and severely restricted their reach and impact.150 Before turning to today’s child labor laws, which are a product of that history, the next Section describes the contemporary child labor landscape. B. Oppressive Child Labor in Contemporary America Until fairly recently, the nation appeared to believe that oppressive child labor was a relic, relegated to America’s Industrial Era past.151 Perhaps this was due in part to the passage of national legislation regulating child labor as well as many state-level laws imposing additional restrictions above and beyond those contained in the FLSA.152 It may also be because the scale of unlawful and oppressive child labor in America is difficult to discern given that no government agency formally collects information on the number of children employed in violation of federal and/or state child labor laws.153 The best data available are kept by the DOL’s WHD, which tracks the number of child labor violations that occur in DOL cases, but this does not account for instances of child labor that the DOL lacks the information or investigative resources to pursue.154 Nevertheless, just a to the FLSA’s exemptions, “[s]eventeen states exempt farmwork from child labor laws” and that “[t]hose most at risk are the children of poor migrant farmworkers”). 150. WOOD, supra note 49, at 151-52. 151. Ana Maria Echiburu, Immigration Raid Results in Charges Filed Against Iowa Slaughterhouse for Child Labor Violations, 14 PUB. INT. L. REP. 93, 93 (2008); Jennifer Sherer & Nina Mast, Child Labor Laws Are Under Attack in States Across the Country, ECON. POL’Y INST. (Mar. 14, 2023), [https://perma.cc/5X97-7PLR]. 152. FLITER, supra note 49, at 220-21. 153. The DOL does not keep youth employment data but directs queries to the Bureau of Labor Statistics. Child Labor Statistics, U.S. DEP’T OF LAB., [https://perma.cc/7NUE-6YXZ] (last visited March 12, 2024). The Bureau of Labor Statistics, however, includes everyone ages sixteen to twenty-four in its “youth” employment figures and these figures only include lawfully employed youth. Employment and Unemployment Among Youth Summary, U.S. BUREAU OF LAB. STAT. (Aug. 16, 2023), [https://perma.cc/4WFZ-B2PS]. Given this lack of investigation on the part of government agencies, it is possible that, absent Hannah Dreier’s reporting for the New York Times, the staggering scale of unlawful child labor may have gone uncovered and unnoticed. 154. Child Labor, U.S. DEP’T OF LAB., [https://perma.cc/F3GJ-ECMV] (last visited Mar. 12, 2024). 6.MILCZAREK-DESAI.MAN.FIN (3) (DO NOT DELETE) 7/7/2024 8:21 PM 2024 (HIDDEN) IN PLAIN SIGHT 373 smattering of federal and state investigations of child labor violations over the past few decades serve to show that oppressive child labor is alive and well in modern-day America. In the late 1980s, the DOL discovered child labor violations at “twice the rate of the first half of the decade and the highest number of violations since the [FLSA] was enacted in 1938.”155 Many of these violations involved children of immigrants who were filling jobs at a time when the nation was experiencing labor shortages and “intensified competition from foreign companies.”156 The DOL made heroic efforts to investigate these increased child labor violations but was thwarted by lack of funding and personnel, as well as the small fines authorized by the FLSA, which “amounted to just a few hundred dollars and were considered by child employers to be just another cost of doing business.”157 In 2008, an infamous federal immigration raid at a large meat-processing plant in Iowa surprised officials when over thirty migrant children were found working in clear violation of federal and state laws in extremely dangerous and hazardous jobs.158 One of these children, a sixteen-year old boy from Guatemala who did not have work authorization, stated that he worked in the slaughterhouse “for seventeen hours a day, six days a week . . . was subject to extreme conditions . . . [but] did not complain . . . for fear of retaliation by his employer.”159 By 2010, “[t]he United States ha[d] the highest percentage of working children of any developed nation,” many of whom were working in violation of the FLSA’s child labor laws.160 These children, including those engaged in farm work and therefore exempt from the FLSA’s requirements, were injured at 155. FLITER, supra note 49, at 226. 156. Id. (commenting on the sweatshop industry, one advocate “stated that some children, especially in neighborhoods with recent Latin American immigrants, did not attend school and worked long hours for wages that rarely reached the legal minimum. This is a trap for them . . . . They sacrifice their education and literally commit themselves to a life of working in a sweatshop . . . [without a] future”). 157. Id. 158. Echiburu, supra note 151, at 94 (stating that “[t]he brutal environment of a meatpacking plant is not an appropriate place for children” given that workers are “exposed to dangerous machines and chemicals and often have to make thousands of cuts every day with sharp knives, risking lacerations, nerve damage, or muscle damage”). 159. Id. 160. Moskowitz, supra note 54, at 108, 122. 6.MILCZAREK-DESAI.MAN.FIN (3) (DO NOT DELETE) 7/7/2024 8:21 PM 374 ARKANSAS LAW REVIEW Vol. 77:2 a rate of 200,000 per year and some died from the dangerous labor they performed.161 This included children whose oppressive labor resulted in permanent disability, scarring, illness, and chronic pain.162 Most recently, in 2023, Hannah Dreier’s New York Times articles exposed large numbers of migrant children working under extremely hazardous and dangerous conditions—many in the meat-processing and construction industries.163 On the heels of Dreier’s investigations, the DOL “issued new findings in an ongoing investigation of Packers Sanitation Services, Inc.” for engaging in oppressive child labor at thirteen meatpacking facilities owned by large, well-known corporations such as Tyson Foods and Cargill.164 The investigation found that over 100 children ages thirteen to seventeen were working in violation of the FLSA during “overnight shifts cleaning razor-sharp saws and other high-risk equipment on slaughterhouse kill floors” leading to at least three serious injuries including “burns from caustic cleaning chemicals.”165 Later in the year, the DOL announced that it was investigating Tyson Foods and Perdue Farms, “which together produce a third of the poultry sold in the United States,” for alleged violations of the FLSA’s child labor laws when they employed children to clean slaughterhouses, which is “some of the most dangerous work in the country.”166 In addition to these investigations, the DOL also has recently been investigating multiple factories in the Hyundai-Kia supply chain in Alabama for child labor violations.167 Like in the meatpacking industry investigations, the DOL discovered that it was mainly migrant children, especially from Guatemala, who were working in these hazardous jobs.168 Notably, the companies under investigation do not represent “isolated mistakes of ill-informed individual employers”—rather, these businesses, like Packers 161. Id. at 108-09. 162. Id. at 122. 163. Alone and Exploited, supra note 7; The Kids on the Night Shift, supra note 14; Children Risk Their Lives, supra note 8. 164. Sherer & Mast, supra note 151, at 3 (according to the DOL, the violations were “systemic” across eight states, and “clearly [indicated] a corporate-wide failure”). 165. Id. 166. Hannah Dreier, Tyson and Purdue Are Facing Child Labor Investigations, N.Y. TIMES (Sept. 23, 2023), [https://perma.cc/Q6DA-VP9Z]. 167. Sherer & Mast, supra note 151, at 3. 168. Id. 6.MILCZAREK-DESAI.MAN.FIN (3) (DO NOT DELETE) 7/7/2024 8:21 PM 2024 (HIDDEN) IN PLAIN SIGHT 375 Sanitation Services, Inc., are among the country’s largest and most sophisticated corporations.169 Then, this past summer, the DOL released data showing that “[c]hild labor violations in the United States soared in the 2022-2023 fiscal year . . . rising to their highest level in nearly two decades.”170 Based on the DOL’s archived data, this was part of a larger trend showing that the number of minors employed in violation of child labor laws rose by 283% from 2015 to 2022.171 The violations spanned several states, over one hundred child workers, and included children as young as thirteen as well as children working overnight shifts up to thirteen hours in meat processing facilities.172 An attorney in the DOL’s Solicitor’s Office stated that based on their investigations, the DOL has discovered nearly 1,000 companies employing around 6,000 children in violation of the FLSA.173 Of these children, about 500 work in extremely dangerous jobs.174 These staggering figures combined with Ms. Dreier’s reporting have demonstrated that oppressive child labor is not a remnant of the past, bringing this issue firmly back into the nation’s collective consciousness. The contemporary resurgence in child labor has been tied by many observers, including the DOL, to an increase in the number of unaccompanied minors who have crossed into the United States from the southern border over the past several years.175 Since 2021, more than 250,000 unaccompanied minors have come to the United States, and most are from Guatemala, 169. Id. (noting that Packers Sanitation Services, Inc. “is owned by the Blackstone Group, the world’s largest private equity firm”). 170. Lauren Kaori Gurley, Child Labor Violations Soared in Fiscal 2023, WASH. POST (Oct. 19, 2023, 5:20 PM), [https://perma.cc/SR57-TL9L]; see Child Labor, supra note 154 (chart of current and historical data on child labor violations collected by the DOL’s Wage and Hour Division). 171. Child Labor, supra note 154; Is Child Labor Increasing in the US?, USA FACTS (June 16, 2023), [https://perma.cc/WQC8-GNJF]. 172. Is Child Labor Increasing in the US?, supra note 171. 173. Laura Huizar, Senior Counsel, Dep’t of Lab. Office of the Solicitor, Child Lab., Presentation at University of Arkansas Law Review’s Symposium: Children at Work (Oct. 13, 2023) (on file with author). 174. Id. 175. Id.; Terri Gerstein, Director, State & Local Enforcement Project at Harv. Law Sch.’s Ctr. for Lab. & a Just Econ., Keynote Address: State Policy Approaches to Combat Oppressive Child Labor at University of Arkansas Law Review’s Symposium: Children at Work (Oct. 13, 2023) (on file with author). 6.MILCZAREK-DESAI.MAN.FIN (3) (DO NOT DELETE) 7/7/2024 8:21 PM 376 ARKANSAS LAW REVIEW Vol. 77:2 Honduras, and El Salvador—Central American countries that are riddled with political destabilization, gang-based violence, and extreme poverty exacerbated by the pandemic and climate change.176 Fleeing “war, famine, [and] natural disasters,” and facing separation from family, these mostly Central American but also Mexican minors “migrate to the United States alone to pursue employment” primarily so that they can send remittances back home to ensure the survival of impoverished family members.177 Under the law, an unaccompanied minor is a child under eighteen years of age who does not have a parent or legal guardian in the United States and lacks immigration authorization to be in the country.178 When the Department of Homeland Security (“DHS”) comes into contact with unaccompanied minors, either at formal border checkpoints or through apprehensions made during crossing attempts or after minors have already entered the United States, it places these children in the care of the Office of Refugee Resettlement (“ORR”) within the Department of Health and Human Services (“HHS”).179 Once children are in HHS custody, ORR begins the process of finding a sponsor, most of whom, according to a government fact sheet, “are a parent or a 176. Unaccompanied Children (UC) Program, U.S. DEP’T OF HEALTH & HUM. SERVS., (Mar. 1, 2023), [https://perma.cc/T49U-FZP4] (stating that the Department of Homeland Security processed 122,731 unaccompanied minors in fiscal year 2021 and 128,904 in fiscal year 2022—in the latter year, 47% were from Guatemala, 29% were from Honduras, and 13% were from El Salvador); Alone and Exploited, supra note 7 (reporting that migrant children, largely from Central America, have been coming to the United States without their parents in record numbers over the past two years); Diana Roy & Amelia Cheatham, Central America’s Turbulent Northern Triangle, COUNCIL ON FOREIGN RELS. (July 13, 2023, 2:55 PM), [https://perma.cc/6P68-FD49] (setting forth statistics showing that poverty, crime, and climate change have forced over two million people to leave these countries since 2019). 177. Canizales, supra note 16, at 1376. 178. 6 U.S.C. §279(g)(2) (2008); Unaccompanied Children (UC) Program, supra note 176. 179. Unaccompanied Children (UC) Program, supra note 176 (stating that the ORR within the HHS “has custody and must provide care for each unaccompanied child, defined as a child who has no lawful immigration status in the United States; has not attained 18 years of age; and, with respect to whom, there is no parent or legal guardian in the United States, or no parent or legal guardian in the United States available to provide care and physical custody”). 6.MILCZAREK-DESAI.MAN.FIN (3) (DO NOT DELETE) 7/7/2024 8:21 PM 2024 (HIDDEN) IN PLAIN SIGHT 377 close family relative” living in the United States.180 Some children, however, end up with sponsors they do not know.181 Regardless of whether migrant children are related to sponsors or not, Dreier’s reporting shows that the vast majority of unaccompanied minors “are under intense pressure to earn money” to send back to their families experiencing “economic desperation” in their home countries; to pay off debts to smugglers who brought them across (sometimes multiple) borders; and to pay for basic living expenses like rent, food, and clothing.182 This is true even for children who end up living with “bona fide relatives” because those relatives are poor too and need children to work if they are going to live with them.183 As a result, unaccompanied migrant children “end up in the most punishing jobs in the country” even though the government knows they are here and “is responsible for ensuring sponsors will support them and protect them.”184 Moreover, Dreier’s investigation found ample evidence that teachers, school officials, employers, and adult co-workers ignored or remained quiet about child labor violations in their communities because they understood the desperation that had driven migrant children to come to America in search of work to begin with and believed that reporting the unlawful work these children were engaged in to authorities would hurt migrant children more than help them.185 One English Language Learner teacher described the situation as “a moral dilemma because [attending school] is not the best thing for them 180. Id. 181. Alone and Exploited, supra note 7 (interviewing a caseworker in Florida who stated she saw unaccompanied migrant children being put to work by sponsors who were not relatives). The government states, however, that ORR engages in significant vetting of sponsors—especially non-relative sponsors—before placing children with them. Unaccompanied Children (UC) Program, supra note 176 (including background checks, criminal public records check, and fingerprinting). 182. Alone and Exploited, supra note 7 (providing information based on an interview with a Florida social worker). 183. Id. 184. Id. (remarking that “[t]hese are not children who have stolen into the country undetected,” and yet “more than 100 migrant child workers in 20 states . . . described jobs that were grinding them into exhaustion”). 185. Id. (“There were reasons that supervisors, teachers, federal inspectors and even police officers had said nothing for years about children working at slaughterhouses. Everyone understood that the children were under extraordinary pressure to earn money to pay off their travel debts and help their families back home.”). 6.MILCZAREK-DESAI.MAN.FIN (3) (DO NOT DELETE) 7/7/2024 8:21 PM 378 ARKANSAS LAW REVIEW Vol. 77:2 . . . [t]hey’re not going to cut their hours, and sleep deprivation is one of the worst things you can do to your body. I question whether they should be here because they don’t really need to know geography or trigonometry.”186 This, then, is the crux of the contemporary child labor crisis—it is predicated upon children who must work in order to survive and who must help desperate families who also rely on their labor for survival. In this way, the “new” child labor of the twenty-first century echoes the “old” child labor of the previous two centuries that relied on poor children, often from immigrant families.187 Then as now, the central conundrum in viewing oppressive child labor as an unequivocal evil, as has been done by historical and contemporary reformers alike, is that it sets up a zero-sum game that cannot be won because the children at the heart of the dilemma are determined to work in ways that violate existing child labor laws.188 It also obscures the underlying causes of oppressive child labor, which “has always been a problem of poverty” that often intersects with migration.189 When understood in this light, oppressive child labor is not a phenomenon that can be eradicated by more or better child labor laws. This, however, is exactly what most scholars and advocates have focused on when proposing solutions to the migrant child labor problem.190 Before analyzing that literature, it is necessary to review today’s child labor laws and their limitations when it comes to addressing the new economy of exploitation. 186. The Kids on the Night Shift, supra note 14. 187. Wood, supra note 147; Huizar, supra note 173; Gerstein, supra note 175. 188. Wood, supra note 147 (quoting Samuel Gompers, an early twentieth century child labor reformer to argue that today’s reformers must finish the job of emancipating childhood that was left incomplete by the failure to ratify the Child Labor Amendment); WOOD, supra note 49 at 125 (stating that it was the goal of early twentieth century child labor reformers like Samuel Gompers to “abolish completely child labor”); Fact Sheet: Protecting Children Act, ED. & WORKFORCE DEMOCRATS, [https://perma.cc/7X9K-PY3P] (last visited Mar. 25, 2024) (setting forth a recent congressional effort to end child labor). 189. FLITER, supra note 49, at 3. 190. See infra Section II.C. 6.MILCZAREK-DESAI.MAN.FIN (3) (DO NOT DELETE) 7/7/2024 8:21 PM 2024 (HIDDEN) IN PLAIN SIGHT 379 II. CHILD LABOR LAWS, THEIR FAILURES, AND TRADITIONAL RECOMMENDATIONS FOR CHANGE This Part describes existing federal and state child labor laws to demonstrate the limited scope and reach of child labor regulations in the United States. It also situates migrant child workers within the larger context of im/migrant workers’ rights to show how the decline of workers’ rights enforcement in general impacts child labor issues as well. Finally, this Part analyzes traditional recommendations for reform to child labor laws, which focus on increasing enforcement of and penalties for child labor violations and argues that these proposed remedies will not help migrant child workers and might even make their situation worse. A. Today’s Child Labor Laws Generally, to be covered under the FLSA, an employer must have at least two employees and a minimum gross annual revenue of $500,000.191 Employees of businesses that do not meet these minimum thresholds will still be covered by the FLSA if a given employee’s job requires them to regularly engage in commerce or the production of goods in commerce.192 These provisions notwithstanding, the FLSA also prohibits employment of children under eighteen in non-agricultural jobs deemed hazardous by the U.S. Secretary of Labor.193 Currently, these include meat processing, mining, manufacturing, operating heavy machinery, baking, and most construction.194 Sixteen and seventeen year-olds who work in jobs not prohibited by the Secretary of Labor may work at any time and for any number of hours that are not 191. 29 U.S.C. § 203(s)(1)(A)(ii) (2018). Even if an employer does not meet these minimum employee and dollar thresholds, they are covered by the FSLA if they are a hospital, business providing medical or nursing care for residents, schools, or government agencies. 29 U.S.C. § 203(s)(1)(B). 192. 29 U.S.C. § 203(s)(1)(A)(i). For example, employees have been held to engage in commerce when they produce goods that will be shipped out of state, work in facilities in which such goods are made, swipe credit cards, make out of state telephone calls, handle records of interstate transactions, unload trucks with goods for the business from out of state, or purchase products for the business from other states. See Field Operations Handbook, U.S. DEP’T OF LAB. (Aug. 31, 2016), [https://perma.cc/54ZM-CRWP]. 193. 29 U.S.C. § 203(l); 29 U.S.C § 212(a) (1974); 29 C.F.R. pt. 570 (2017). 194. 29 C.F.R. §§ 570.50-570.68. 6.MILCZAREK-DESAI.MAN.FIN (3) (DO NOT DELETE) 7/7/2024 8:21 PM 380 ARKANSAS LAW REVIEW Vol. 77:2 prohibited by the laws of the state in which they reside because the FLSA does not restrict their hours of work.195 Fourteen- and fifteen-year-old children, on the other hand, are heavily regulated by the FLSA. They are not permitted to work more than three hours on a school day or eight hours on a non-school day, may not work more than eighteen hours per week when school is in session or forty hours per week when it is not, and are completely barred from working overnight shifts.196 Finally, children under fourteen may not work in any non-agricultural job covered by the FLSA.197 Unlike the FLSA’s minimum wage, overtime, and anti-retaliation laws, the FLSA’s child labor provisions do not contain a private right of action, which means that only the DOL may enforce child labor laws.198 The WHD “has exclusive responsibility for administration of the FLSA’s child labor provisions.”199 When the WHD, through an investigation, finds that children are working in violation of child labor laws, it has two main tools at its disposal: penalties and injunctions. Under the FLSA’s civil penalties, the WHD may fine an employer approximately $15,000 for each child worker found to be working in violation of the FLSA’s child labor provisions.200 If the violation resulted in a child worker’s “death or serious injury,” then the penalties increase to approximately $130,000 per violation. 201 The FLSA also authorizes criminal penalties, but these are limited to situations in which the employer violations 195. 29 C.F.R. §§ 570.50-570.68; Fact Sheet #43: Child Labor Provisions of the Fair Labor Standards Act (FLSA) for Nonagricultural Occupations, U.S. DEP’T OF LAB. (Dec. 2016) [hereinafter Fact Sheet #43], [https://perma.cc/F2C6-PUKU]. 196. 29 C.F.R. §§ 570.31-570.39; Field Operations Handbook, supra note 192. 197. 29 C.F.R. § 570.2; Fact Sheet #43, supra note 195 (outside of agriculture, children under fourteen may be employed in a handful of occupations including newspaper delivery, acting, minor chores, and casual babysitting). 198. Cf. 29 U.S.C. § 206 (2016) (minimum wage); 29 U.S.C. § 207 (2022) (overtime); and 29 U.S.C. § 215(a)(3) (2022) (retaliation prohibition); with 29 U.S.C. § 212(a) (child labor). 199. Moskowitz, supra note 54, at 137; 29 U.S.C. § 212. 200. 29 U.S.C. § 216(e)(1)(A) (2022) (adjusted for inflation); see also Moskowitz, supra note 54, at 137-38 (explaining that “[c]ivil penalties of $1,000 per [child labor] violation were first added in 1974,” increased to $10,000 per violation in 1990, and amended again “in 2008 to increase the civil penalty to $11,000”). 201. 29 U.S.C. § 216(e)(1)(A) (adjusted for inflation); see also Moskowitz, supra note 54, at 138 (this civil penalty was created in 2008, at which time an employer faced a $50,000 fine for death or serious injury, which could be doubled in cases of willful violations). 6.MILCZAREK-DESAI.MAN.FIN (3) (DO NOT DELETE) 7/7/2024 8:21 PM 2024 (HIDDEN) IN PLAIN SIGHT 381 were “deliberate, voluntary and intentional,” or exemplified “reckless indifference to, or disregard for, the act’s requirements.”202 This willfulness standard is extremely difficult to meet and even if “prosecutions [can be] brought, the penalty is a fine of not more than $10,000 or imprisonment for not more than six months, the latter only after a prior criminal conviction.”203 Even when the WHD decides to pursue monetary penalties for child labor violations, the FLSA requires that the government consider the size of the business, the gravity of the violation, history of prior violations, and other factors before assessing fines against employers.204 If monetary penalties are collected, the law requires that they must be placed in the U.S. Treasury Department’s general fund rather than being paid to the children who were working in violation of the law.205 Child labor reformers as well as the DOL have repeatedly bemoaned that the civil and criminal penalties authorized by the FLSA are too small and therefore insufficient to deter large, heavily resourced employers from engaging in child labor violations.206 The second tool, which many, including the DOL, regard as more impactful than fines, is the child labor law’s “hot goods” provision, which has its roots in the Beveridge-Parsons Act of 1906.207 This portion of the law relies on congressional Commerce Clause powers, and permits the DOL to seek an injunction from a federal district court to allow the agency to seize goods that are the product of oppressive child labor if those goods are shipped within thirty days of the use of oppressive child 202. 29 U.S.C. § 216(a); Moskowitz, supra note 54, at 141-42 (observing that criminal enforcement of the FLSA’s child labor provisions is “effectively ruled out” by the willfulness requirement coupled with minimum criminal penalties; indeed, “there has not been a federal prosecution under this section since the Act was adopted seventy years ago”). 203. 29 U.S.C. § 216(a); Moskowitz, supra note 54, at 142 (stating that “[v]iolators are . . . accorded ‘one free bite’ before there is even the possibility of a misdemeanor conviction with the possibility of jail time”). 204. 29 U.S.C. § 216(e)(3); 29 C.F.R. § 579.5 (2016); Moskowitz, supra note 54, at 138. 205. 29 U.S.C. § 216(e)(5). 206. Huizar, supra note 173; Gerstein, supra note 175; Moskowitz, supra note 54, at 137-38. 207. 29 U.S.C. § 212 (1974) (hot goods provision); Huizar, supra note 173; Gerstein, supra note 175. 6.MILCZAREK-DESAI.MAN.FIN (3) (DO NOT DELETE) 7/7/2024 8:21 PM 382 ARKANSAS LAW REVIEW Vol. 77:2 labor.208 The DOL has interpreted the hot goods provision to apply to oppressive child labor that takes place in the same facility that the goods were produced even if children are not directly involved in the manufacture of a given product.209 In other words, if children clean a facility where goods are produced in violation of the FLSA, the hot goods provision will apply—and this is true even if the facility is not owned by the product’s manufacturer.210 Subjecting the entire chain of production of a given product to the hot goods provision is consistent with the plain language of the FLSA, which states that “[n]o employer shall employ oppressive child labor . . . in the production of goods for commerce.”211 Because removing goods from commerce has serious, negative monetary implications for manufacturers, the hot goods provision of the law is viewed as a more meaningful deterrent for large employers than are monetary penalties.212 In addition to the FLSA’s child labor provisions, there are also state child labor laws that, while they cannot fall below the minimum requirements set forth by the FLSA, can and in some cases do impose additional restrictions such as the number of hours and times of day that children can work and requiring employers to verify “work permits” signed by parents or guardians before hiring children.213 Several states, many in the South and Midwest, however, have recently relaxed or removed their child labor restrictions.214 Thus, given the FLSA’s 208. 29 U.S.C. § 211(a) (1985); 29 U.S.C § 212; 29 U.S.C. § 217 (1961); This expanded definition of Congress’ Commerce Clause powers dates to United States v. Darby Lumber, 312 U.S. 100, 115 (1941). 209. Huizar, supra note 173. 210. Id. 211. 29 U.S.C. § 212(c) (emphasis added). 212. Huizar, supra note 173 (explaining that even if manufacturers are not the owners of facilities, and therefore not subject to the child labor provision’s fines, they are still subject to the seizure of their goods, which prompts them to ensure there is no oppressive child labor in the entire chain of their products’ manufacturing even if part of that chain is in the hands of smaller contracted or subcontracted employers). 213. Fact Sheet #43, supra note 195; Selected State Child labor Standards Affecting Minors Under 18 in Non-farm Employment as of January 1, 2024, U.S. DEPT. OF LAB. (Jan. 1, 2024), [https://perma.cc/8PMN-Z87F]. 214. See Sherer & Mast, supra note 151, at 5; Chris Gilligan, Child Labor Violations on the Rise as States Look to Roll Back Laws, U.S. NEWS & WORLD REP. (July 11, 2023, 3:07 PM), [https://perma.cc/EJ9R-YZGZ]; FLITER, supra note 49, at 233-38; Moskowitz, supra note 54, at 147-48 (describing state child labor laws and enforcement as “laissez-faire” because, at the time, “a mere twenty-one states limit[ed] children under the age of 16 to three 6.MILCZAREK-DESAI.MAN.FIN (3) (DO NOT DELETE) 7/7/2024 8:21 PM 2024 (HIDDEN) IN PLAIN SIGHT 383 agricultural exemption and the many states that lack robust child labor laws, there are large swaths of children who are not protected by America’s child labor laws.215 Even children covered by federal and state laws may not receive actual protection under the law given limited investigative and enforcement capacity at both the DOL and state labor agencies. Indeed, enforcement of workers’ rights violations in general has been in decline for several decades. Consistent underfunding and lack of resources for workers’ rights enforcement means that the DOL investigates only a tiny fraction of all workplaces in the United States.216 For example, in November 2022, the DOL had 810 employees dedicated to investigating violations of federal workplace rights for the entire nation.217 Today’s number of DOL investigators is down by 422 people since 1978.218 As of September of 2023, the DOL had 750 investigators overseeing all FLSA violations for 11 million workplaces around the country, including 3,000 slaughterhouses where many of the recent child labor violations exist.219 This lack of resources is mirrored at the state level, too, where many states have fewer than ten investigators to enforce all workers’ rights statewide.220 Thus, as Dreier’s investigative reporting has found, even when workplaces are subject to child labor regulation, they hours of work per day during the school year . . . only thirty-eight jurisdictions require parental consent for children under age 16 to work . . . [o]nly sixteen states mandate parental consent for 16- and 17-year-old adolescents to work, three of which only mandate consent during school hours . . . [f]orty-four states allow children aged 16 and 17 to work forty or more hours during weeks while school is in session . . . [and] [t]hirty states do not even require work or age permits for youths aged 16 or 17”). A handful of states, however, have been working to strengthen their child labor laws. Nina Mast, As Some States Attack Child Labor Protections, Other States Are Strengthening Standards, ECON. POL’Y INST. (Nov. 7, 2023, 1:56 PM), [https://perma.cc/B98Z-YJY3]. 215. Sherer & Mast, supra note 151, at 9. 216. David Weil & Amanda Pyles, Why Complain? Complaints, Compliance, and the Problem of Enforcement in the U.S. Workplace, 27 COMPAR. LAB. L. & POL’Y J. 59, 62, 70 (2005) (stating that a 2004 study showed that “the annual probability of receiving an inspection for one of the 7.0 million establishments covered [by the FLSA] is well below .001”). 217. Gerstein, supra note 175 (stating that at its current rate of investigations, it would take the DOL 190 years to investigate every covered U.S. workplace). 218. Id. 219. The Kids on the Night Shift, supra note 14. 220. Gerstein, supra note 175. 6.MILCZAREK-DESAI.MAN.FIN (3) (DO NOT DELETE) 7/7/2024 8:21 PM 384 ARKANSAS LAW REVIEW Vol. 77:2 may not be stopped from or penalized for engaging in unlawful child labor.221 B. Child Labor Laws Within the Context of Im/migrant Workers’ Rights In addition to the lack of federal and state workers’ rights enforcement resources, existing child labor law penalties—on both federal and state levels—do not account for what David Weil, the former Administrator of DOL’s WHD, has referred to as the “fissured” workplace.222 Weil’s term is meant to capture the layers of contracting and subcontracting that many employers—especially large corporations—engage in for a variety of reasons, including to “shift labor costs and liabilities to smaller business entities.”223 Although there may be legitimate reasons for engaging in this practice, some businesses do so in order to benefit from unlawful child labor without having to risk penalties for violating the FLSA’s child labor prohibitions.224 In other words, a large (and arguably image-conscious) employer like Perdue Farms might subcontract with a small, local, cleaning business such as Fayette Industrial in a manner that permits Perdue to access lower cost workers without fearing DOL prosecution and fines for doing so.225 The fissured workplace has long been a common business model used by industries that employ large numbers of adult im/migrant workers who lack documentation.226 Like with unlawful child labor, large corporate employers often engage in contracting and subcontracting so that they can benefit from cheap labor while avoiding DHS raids and immigration law penalties for employing workers without authorization.227 Large businesses engaged in fissuring schemes also stand to benefit 221. The Kids on the Night Shift, supra note 14. 222. WEIL, supra note 34, at 7-10; DAVID WEIL, REPORT TO THE WHD: IMPROVING WORKPLACE CONDITIONS THROUGH STRATEGIC ENFORCEMENT 9 (2010) [hereinafter REPORT TO THE WHD], [https://perma.cc/3VDT-RZ9F]. 223. REPORT TO THE WHD, supra note 222, at 10. 224. Id. at 9-10; Gerstein, supra note 175. 225. The Kids on the Night Shift, supra note 14. 226. REPORT TO THE WHD, supra note 222, at 20. 227. Id. at 21. 6.MILCZAREK-DESAI.MAN.FIN (3) (DO NOT DELETE) 7/7/2024 8:21 PM 2024 (HIDDEN) IN PLAIN SIGHT 385 when smaller employers fail to pay legally required minimum wage and overtime, which is an all-too-common phenomenon among employers of unauthorized workers, without risking employment and labor violations and penalties.228 Even direct employers rarely face legal accountability for their violations of undocumented workers’ rights.229 This is due to im/migrant workers’ deep-seated fear of employer retaliation primarily in the form of immigration enforcement—i.e., that the boss will call law enforcement—and also in the form of termination, which most low-wage im/migrant workers cannot afford.230 This fear of retaliation, in turn, prevents workers from complaining, either to their employers or labor agencies, when their workers’ rights are violated.231 But complaint-making, especially to government agencies, is key to accessing workers’ rights because labor agencies, including the DOL, rarely investigate workplace rights violations, prosecute employers, and provide remedies to workers in the absence of complaints due to their woefully limited investigatory resources as set forth above.232 This results in a vicious cycle in which vulnerable workers become more likely to experience workers’ rights violations and less likely to do anything to ameliorate them.233 Although retaliation fears among migrant child workers have not been studied in the same way as they have with undocumented adult workers, there are strong indicators that migrant children also do not complain when they are subjected to hazardous and dangerous work requirements because they do not want to lose their jobs.234 Arguably, migrant children have even less incentive to assert their workers’ rights than unauthorized adult workers because, since the FLSA does not provide a private right of action for child labor law violations, the only “remedy” migrant children would attain is removal from their unlawful 228. Id. 229. See RUTH MILKMAN, IMMIGRANT LABOR AND THE NEW PRECARIAT 115 (2020); Milczarek-Desai, supra note 35, at 1195-97. 230. Milczarek-Desai, supra note 35, at 1192-93 n.134. 231. Id. at 1195-97. 232. Id. at 1194. 233. Id. at 1197-98. 234. Echiburu, supra note 151, at 94; Alone and Exploited, supra note 7. 6.MILCZAREK-DESAI.MAN.FIN (3) (DO NOT DELETE) 7/7/2024 8:21 PM 386 ARKANSAS LAW REVIEW Vol. 77:2 employment.235 This, of course, provides no relief at all for children who must work for their and their families’ survival and, in fact, has the opposite effect by further imperiling unaccompanied migrant children as discussed below. C. Traditional Calls for Reform Are Ineffective and Dangerous The failures of U.S. child labor laws, as outlined above, long predate the new economy of exploitation. The FLSA has never covered all child labor as exemplified by the agricultural exemptions, DOL enforcement has always been inadequate, and what little enforcement exists has been thwarted by the fissured workplace and the threat of employer retaliation. Given these long-standing shortfalls, legal scholars and policymakers have been advancing arguments for at least two decades to reform existing child labor laws. To date, none have been adopted into law and, as this Section argues, even if they were implemented, they will not benefit migrant child workers and, in fact, may be harmful to them.236 One of the most common reforms that scholars and policymakers advocate for is an increase in employer penalties and sanctions for violations of federal child labor laws.237 These arguments correctly note that the FLSA’s civil and criminal penalties for child labor violations are so low that that “[a]n economically rational employer, motivated to maximize profit, will calculate the chance of detection as negligible and the cost of sanction, if detected, as an eminently affordable cost of doing business.”238 For example, the only fine levied against an employer for the severe injuries Antoni suffered after falling thirty feet from a roof while laying shingles was $500.239 235. 29 U.S.C. § 212(a) (1974). 236. Like contemporary child labor reformers, the nineteenth and early twentieth century child labor reformers also framed their goal in terms of the abolishment of all child labor and like their contemporary counterparts, their efforts in this regard failed. See supra Section I.A. 237. Moskowitz, supra note 54, at 141-42; Gerstein, supra note 175; Protecting Children Act, H.R. 4440, 118th Cong. (2023); Shima Baradaran & Stephanie Barclay, Fair Trade and Child Labor, 43 COLUM. HUM. RTS. L. REV. 1, 5 (2011). 238. Moskowitz, supra note 54, at 141. 239. Children Risk Their Lives, supra note 8. 6.MILCZAREK-DESAI.MAN.FIN (3) (DO NOT DELETE) 7/7/2024 8:21 PM 2024 (HIDDEN) IN PLAIN SIGHT 387 Employers of migrant children who have died in the past few years while on roofing jobs have not been fined anything at all.240 The lack of deterrent effect from these minimal penalties is further exacerbated by the DOL’s limited enforcement capacity, which reduces the likelihood that a given employer will be found in violation in the first place.241 For this reason, advocates also recommend increasing DOL funding for investigation and enforcement purposes.242 Despite decades of advocacy around these proposed changes to federal child labor regulations, none have thus far made it into law due largely to the impasses and lack of bipartisanship in Congress.243 Even if the wish-list of recommended solutions to the FLSA’s failed child labor provisions were miraculously ushered into law soon, these reforms will not help migrant child workers. It is true that enhancing the amount of enforcement actions and the degree of civil and criminal penalties against employers who violate child labor laws will increase punishment of employers who engage in oppressive child labor. Conflating employer sanctions with protecting children from oppressive child labor, 240. Id. 241. Id. (stating that the DOL’s lack of enforcement resources means that the department “has brought only an average of seven cases a year over the past decade, imposing less than $6,000 in fines per case . . . [i]n a statement, the department noted that it had just 731 investigators overseeing 11 million workplaces. Jessica Looman, administrator of the department’s wage and hour division, said the department was requesting more funding from Congress to protect migrant children.”). 242. Moskowitz, supra note 54, at 152; Megan McGinnis, Child Farm Labor Under the Fair Labor Standards Act, 20 KAN. J.L. & PUB. POL’Y 155, 172-73, 177 (2010); Gerstein, supra note 175; Protecting Children Act, H.R. 4440, 118th Cong. (2023). Some child labor law reformers also believe that including a private right of action in the FLSA would help to deter, if not abolish, oppressive child labor. See, e.g., Moskowitz, supra note 54, at 137; Krauth, supra note 6, at 237-47; Gerstein, supra note 175. A private right of action would only be helpful, however, if migrant children were able to locate attorneys who would take their cases on a contingent fee or pro bono basis—a dubious assumption given the well-known, national lack of access to justice for low-wage im/migrant workers seeking justice for wage and hour violations based on existing private rights of action under the FLSA. Ty Frankel, Immigrants’ Rights Are Workers’ Rights, and Workers’ Rights Are Immigrants’ Rights: Recovering Unpaid Wages Under the Fair Labor Standards Act, FLORENCE IMMIGRANT & REFUGEE RTS. PROJECT (Aug. 19, 2016), [https://perma.cc/67XW-DCMX]. 243. The Kids on the Night Shift, supra note 14. This is not for lack of trying, as demonstrated by numerous bills introduced in Congress to make these very changes. McGinnis, supra note 242, at 155, 173, 177; see e.g., Protecting Children Act, H.R. 4440, 118th Cong. (2023). 6.MILCZAREK-DESAI.MAN.FIN (3) (DO NOT DELETE) 7/7/2024 8:21 PM 388 ARKANSAS LAW REVIEW Vol. 77:2 however, is a mistake especially when it comes to unaccompanied minors as demonstrated by recent enforcement efforts by the WHD and Hannah Dreier’s investigative reporting. Since Hannah Dreier’s articles brought oppressive child labor back into the American consciousness, DOL and WHD have been engaged in Herculean efforts, given their extremely limited resources, to investigate employer violations of the FLSA’s child labor provisions. In late October 2023, the DOL issued a press release stating that WHD had been investigating a Southern California meat processor that supplied poultry to large companies such as Ralphs Grocery Stores and SYSCO Corp.244 Specifically, WHD found that The Exclusive Poultry Inc. and related companies owned by Tony Bran “employed children as young as fourteen years old to debone poultry using sharp knives, operate power-driven lifts to move pallets” and work excessive hours—all in violation of the FLSA’s child labor provisions.245 In December 2023, as a result of these and other violations, including failure to pay overtime wages, Bran and his companies agreed to pay nearly $3.8 million in penalties, back wages, and damages.246 With respect to the child labor violations, WHD obtained an injunction mandating that Bran and his companies cease engaging in unlawful child labor practices.247 This narrative appears to be a bona fide legal success demonstrating that child labor laws work. A lucrative business supplying major companies in the meat-processing industry was caught violating federal child labor laws by putting minors to work in extremely dangerous and hazardous jobs. Thanks to the 244. Eric Lagatta, Kids Used Sharp Knives, Power Equipment: California Poultry Plant to Pay $3.5M Fine, USA TODAY (Dec. 6, 2023, 11:56 AM), [https://perma.cc/45FV-39H6]; Court Orders Poultry Processors to Stop Endangering Children, Withholding Pay, Retaliating, Shipping ‘Hot Goods’ at La Puente, City of Industry Locations, DEP’T OF LAB. (Oct. 23, 2023) [hereinafter Court Orders Poultry Processors to Stop Endangering Children], [https://perma.cc/U7SF-UAPL]. 245. Court Orders Poultry Processors to Stop Endangering Children, supra note 244 (WHD also alleged that Bran and his companies “directed young workers—including employees under age 16—to work full time and not go to school and to engage in dangerous jobs, including deboning poultry in meat coolers . . . and threatened them with retaliation if they spoke to investigators about their illegal activity”). 246. Id.; Lagatta, supra note 244 (stating that just a little over $200,000 of these penalties were specifically tied to child labor violations). 247. Court Orders Poultry Processors to Stop Endangering Children, supra note 244. 6.MILCZAREK-DESAI.MAN.FIN (3) (DO NOT DELETE) 7/7/2024 8:21 PM 2024 (HIDDEN) IN PLAIN SIGHT 389 law and its enforcement, the company is now barred from engaging in oppressive child labor and can no longer employ children in violation of the FLSA’s regulations. The on-the-ground reality, however, tells a very different story. After Dreier’s first article was published and the DOL began investigating child labor violations in the meat-processing industry, large companies such as Perdue Farms and Tyson Foods put pressure on the subcontracted janitorial companies cleaning their plants to stop engaging in unlawful child labor.248 As a result, large numbers of unaccompanied minors lost their jobs.249 Several months later, Dreier went back to those same poultry plants and reported that “[e]ventually, adult[] [workers] started to see young faces again” and that several of the minors who were let go had been hired back to work in the same factories as they worked in a few months earlier.250 In one instance, a “teenager who could no longer work at [a] Tyson [plant] was able to switch to the Perdue cleaning shift with a set of fake papers.”251 Then there is the heartbreaking story of Marcos, the fourteen-year-old boy from Guatemala who nearly lost his arm cleaning a meat-processing machine at a Perdue poultry plant.252 After his terrible injury, which required multiple surgeries and left him with very limited use of his arm, Perdue’s sanitation contractor, Fayette, terminated Marcos and refused to re-hire him as required under the law.253 With no choice but to work, Marcos ended up working a “job that even the most desperate migrants shunned: sifting through industrial chicken warehouses [marked ‘Perdue family farmer’] and pulling out dead birds.”254 This new job requires him to wear two masks “to guard against the overpowering smell of ammonia . . . search the ground carefully for carcasses amid layers of excrement as [tightly packed 248. The Kids on the Night Shift, supra note 14. 249. Id. (one supervisor who had to terminate unaccompanied minors working in violation of child labor laws stated that the children “were looking at me with tears in their eyes”). 250. Id. 251. Id. 252. Id. 253. The Kids on the Night Shift, supra note 14. 254. Id. 6.MILCZAREK-DESAI.MAN.FIN (3) (DO NOT DELETE) 7/7/2024 8:21 PM 390 ARKANSAS LAW REVIEW Vol. 77:2 chickens] pecked frantically at his hands and feet.”255 Marcos’ twelve-hour shift starts at five in the morning and pays less than what he made cleaning the Perdue factory but it enabled him to “send $100 home to his parents after a few weeks” of working at his new job.256 Viewed from the perspective of unaccompanied migrant children as reported in Dreier’s articles, child labor reformers’ proposed solutions—increased enforcement and penalties for child labor law violations—do not result in a net benefit for these children. Desperate for work, they find ways, even if months later, to come back to the same jobs they had earlier once the enforcement storm has subsided. Or, worse, like Marcos, they are driven deeper into the shadow economy to jobs that are just as, if not more, dangerous but less likely to be regulated than the ones they had before.257 In this way, child labor laws have the unintended consequence of forcing the most destitute children “to choose between a life of increased poverty or more exploitative, often illegal, work.”258 This is, in fact, exactly what has happened in the international child labor context when international or U.S. laws have targeted child labor abroad.259 From 1992 to 1999, lawmakers in Congress proposed a complete ban on imported products made by children in other countries.260 The law was well intentioned and Democratic Senator Tom Harkin from Iowa, who introduced the bill, believed that “[c]hildren in developing 255. Id. (quoting Marcos as saying, “There are some dead chickens that are good and rotten—they explode” when you pick them up). 256. Id. 257. Id. (Although unclear from Dreier’s reporting, Marcos’ new job likely is not subject to the FLSA’s child labor provisions because it appears to come under the FLSA’s agricultural exemption). 258. S. Denay Brown, Protecting the Children: The Need for Modern Day Balancing Test to Regulate Child Labor in International Business, 20 J. TRANSNAT’L L. & POL’Y 129, 148 (2010) (also citing economist Paul Krugman who has argued that some of the unintended consequences of child labor laws in the developing world have been to force destitute parents to sell their children into slavery). 259. Id. (“Forcing child labor underground and into concealment only further hinders any attempts at monitoring or regulating such labor.”); see also M. Neil Browne et al., Universal Moral Principles and the Law: The Failure of One-Size-Fits-All Child Labor Laws, 27 HOUS. J. INT’L L. 1, 35 (2004) (“Sometimes, an outright ban on the use of child labor has resulted in children being pushed into worse forms of labor for even lower pay.”). 260. The Child Labor Deterrence Act of 1997, S. 332, 105th Cong. (1997). 6.MILCZAREK-DESAI.MAN.FIN (3) (DO NOT DELETE) 7/7/2024 8:21 PM 2024 (HIDDEN) IN PLAIN SIGHT 391 countries, for the sake of their future and that of their economies, should be in schools and not in factories working long hours for little or no pay under hazardous conditions.”261 There were, however, grave unintended consequences. Soon after the law was proposed, “50,000 Bangladeshi children garment workers lost their jobs” and “[a]s a result of the firings, the ILO and UNICEF found that many of the children took on more dangerous work such as stone crushing or prostitution to make ends meet.”262 These types of on-the-ground realities have led scholars who study international child labor to argue that increased legislation and prosecution of child labor violations are rarely successful, in large part because they “ignore the root causes of child labor,” the greatest by far of which is poverty.263 Although these scholars do not sanction oppressive child labor, they critique developed countries’ goals to completely abolish child labor because they do not have any meaningful impact on poor children who must work for their and their families’ survival.264 Given the legacy of colonial lawmaking that is at odds with child workers’ widespread poverty and indigenous cultural norms, these scholars 261. Brown, supra note 258, at 146. 262. Id. at 147-148 (also stating that “[c]omplete bans on child labor or imports born of child labor, have led to instances in which companies, after a threat of action by importing governments or companies, have eliminated the use of all child labor” which resulted in forcing “children to resort to more drastic measures for employment such as prostitution, begging, or new employment in even worse working conditions.”). Scholars who study sex work in the United States have similarly criticized laws regulating sex work that fail to take sex workers’ intersectional identities and circumstances into account. Linda S. Anderson, Let’s Talk About Sex (Work): The Irony of Partial Decriminalization of Sex Work, 26 U. PA. J.L. & SOC. CHANGE 37 (2023); NINA LUO, DECRIMINALIZING SURVIVAL: POLICY PLATFORM AND POLLING ON THE DECRIMINALIZATION OF SEX WORK 4 (2020), [https://perma.cc/9G6C-KGSJ]; Is Sex Work Decriminalization The Answer? What The Research Tells Us, ACLU 10 (Oct. 21, 2020), [https://perma.cc/HT77-PB62]. 263. Baradaran & Barclay, supra note 237, at 1, 14-18; see also Brown, supra note 258, at 133 (“First and foremost, poverty is the leading cause of child labor.”); Ranee Khooshie Lal Panjabi, Sacrificial Lambs of Globalization: Child Labor in the Twenty-First Century, 37 DENV. J. INT’L L. & POL’Y 421, 432 (2009) (“[i]t is a truism that child labor prevails because poverty prevails . . . the great majority of children work because their families are poor”) (internal citations omitted); Browne et al., supra note 259, at 6 (“To begin, we should note that historically the only children who have needed to work have been poor children.”). 264. Brown, supra note 258, at 129-30; Browne et al., supra note 259, at 3, 35 (“Are the toiling children truly better off because of these laws, or do supporters of such statutes risk losing sight of the larger goal of what is good for the children while attempting to ban the use of child labor?”). 6.MILCZAREK-DESAI.MAN.FIN (3) (DO NOT DELETE) 7/7/2024 8:21 PM 392 ARKANSAS LAW REVIEW Vol. 77:2 conclude that more and better laws and enforcement will not help as much as programs that might help families survive without their children’s income or excellent educational opportunities for children that might justify loss of income to their families.265 The DOL, America’s top labor agency, is aware that international child labor reformers and experts “believe that the issue of child labor, especially in the more impoverished countries of the developing world, cannot be viewed in isolation but must be addressed in the broader context of social, economic, and educational development as a whole.”266 To date, however, this has not been the law or policy approach that has been taken when confronting child labor within the United States itself. Most legal scholarship concerning domestic child labor has similarly been focused on the abolition of oppressive child labor through increased legislation, enforcement, and penalties.267 One exception is Dana Dohn and Amy Pimer’s law review article scrutinizing existing child labor laws’ inability to account for the unique situation of emancipated minors.268 Through a detailed description of minors who seek emancipation and their circumstances, including their need to work in jobs that are off-limits to them under the law, Dohn and Pimer argue that the law must take these children’s situation as minors and individuals who must work into consideration.269 Doing so allows the authors to make recommendations for change that go beyond traditional calls for revisions to the FLSA (although they make those too) and seek potentially more attainable changes at the state level that will provide actual protection for these children.270 265. Browne et al., supra note 259, at 36. 266. BY THE SWEAT AND TOIL OF CHILDREN: THE USE OF CHILD LABOR IN AMERICAN IMPORTS 4 (1994) [hereinafter BY THE SWEAT AND TOIL OF CHILDREN], [https://perma.cc/5MNG-QM9V]. 267. Brown, supra note 258, at 130; Moskowitz, supra note 54 (arguing for enhancement of penalties and enforcement of child labor laws); McGinnis, supra note 242, at 155-56 (arguing for increased protection for child agricultural workers under the FLSA). 268. Dana M. Dohn & Amy Pimer, Child Labor Laws and the Impossibility of Statutory Emancipation, 33 HOFSTRA LAB. & EMP. L.J. 121, 122 (2015). 269. Id. at 151-53 (stating that “hour limitations combined with job restrictions make it practically impossible to make a month’s rent, let alone buy other essentials, such as utilities, groceries, and clothing,” which is necessary for a minor to accomplish in order to obtain emancipation). 270. Id. at 155-61. 6.MILCZAREK-DESAI.MAN.FIN (3) (DO NOT DELETE) 7/7/2024 8:21 PM 2024 (HIDDEN) IN PLAIN SIGHT 393 For the most part, however, scholars, advocates, and law and policy makers presume that all children working in oppressive jobs would benefit if existing child labor laws worked as intended.271 A thought experiment shows why that is not the case for the children caught in today’s migrant child labor crisis. Assume that somehow all oppressive child labor were wholesale eradicated within the borders of the United States.272 What would happen to children who currently work in those jobs? Some, especially, those who are native born and living with at least one custodial parent who is a citizen, might manage through some combination of familial support and public assistance programs such as unemployment insurance or other state-based programs.273 In other words, these children might have a tenable “fallback” position if they could no longer engage in unlawful child labor.274 But that would not be the case for unaccompanied migrant children. First, unaccompanied minors, by definition, have no custodial parent in the country and most cannot rely on familial help since their sponsors, even if family members, are unable to financially support them.275 Second, migrant children, because they do not receive work authorization documentation, are barred from applying for unemployment insurance benefits and many, if not most, state welfare programs.276 Thus, even if the goal of ending oppressive child labor could be achieved, it is unclear what would become of unaccompanied migrant child who 271. See supra note 267 and accompanying text. 272. Admittedly, this is an unfathomable scenario in the current political and economic moment. It is, however, worth considering, and I thank my colleague Andy Coan for posing it. 273. An immigrant mother who worked in the same poultry processing plant as Marcos and many of the other unaccompanied minors featured in Dreier’s reporting stated to Dreier that she would never permit her children, who lived with her, to do the kind of work that the unaccompanied minors were engaged in. The Kids on the Night Shift, supra note 14. 274. This may also have been true for the poor white children who were the focus of the campaign, and ultimate success, behind the passage of federal child labor laws. See supra Section I.A. 275. See supra Section I.B. 276. 26 U.S.C. § 3304(a)(14)(A) (2018) (“[C]ompensation [under a state’s unemployment compensation program] shall not be payable on the basis of services performed by an alien unless such alien is an individual who was lawfully admitted for permanent residence at the time such services were performed, was lawfully present for purposes of performing such services, or was permanently residing in the United States under color of law at the time such services were performed . . . .”). 6.MILCZAREK-DESAI.MAN.FIN (3) (DO NOT DELETE) 7/7/2024 8:21 PM 394 ARKANSAS LAW REVIEW Vol. 77:2 could no longer work in jobs to support themselves and their families.277 Thus, even at their best, U.S. child labor laws fail to protect, and may even harm, migrant children because they do not address or ameliorate the specific conditions that lead migrant children to seek out dangerous and hazardous jobs in the first place. This means that better laws and more enforcement will not alleviate unaccompanied migrant child workers’ precarious predicament, and in fact may make things worse. Part III explores alternative solutions that might benefit migrant children beyond traditional calls for child labor reform. III. ADDRESSING THE NEW ECONOMY OF EXPLOITATION Addressing the new economy of exploitation requires a legal framework that differs from traditional calls for child labor reform. This Part posits such a framework by centering migrant children’s experiences at the confluence of migration and labor and employing the theory of work primacy from cultural sociology. It then applies this novel framing to make recommendations for immediate action that could alleviate migrant child workers’ suffering in the short-term as well as to recommend longer-term, systemic changes necessary to solve the migrant child labor crisis. A. Centering Migrant Children’s Experiences Traditional calls for enforcement of child labor laws and reforms do not consider migrant children’s on-the-ground experiences. Rather, as demonstrated in Parts I and II, past and present advocates crusading for the abolition of child labor often have had the paradigmatic American child in mind.278 That child lives with at least one custodial parent and needs protection from 277. This view comports with what the DOL has recognized as something of a consensus among experts in the international child labor realm—that “immediate abolition of all child labor is unrealistic and, in many cases, contrary to the interests of the children themselves.” BY THE SWEAT AND TOIL OF CHILDREN, supra note 266. 278. See supra Parts I-II. 6.MILCZAREK-DESAI.MAN.FIN (3) (DO NOT DELETE) 7/7/2024 8:21 PM 2024 (HIDDEN) IN PLAIN SIGHT 395 excessive labor in order to enjoy an idyllic American childhood free from the cares of daily survival.279 This, of course, is far from the lived reality of unaccompanied minors who form the bulk of the nation’s migrant child worker population.280 If the goal is to help the actual children at the heart of the current child labor crisis, these specific children’s circumstances and needs must be taken into account when positing changes that will comprehensively address their predicament.281 This can be done by locating unaccompanied minors “within the larger socio-economic and political context in which they labor.”282 Migrant children’s experiences as migrants, and low-wage workers result in what sociologist Stephanie Canizales terms “work primacy,” which refers to “the centrality of work” in these children’s lives.283 Canizales interviewed seventy former migrant child workers in Los Angeles and, like Dreier, found that the combined pressures of “sobrevivencia (survival)” in the United States and the need to send financial support to families back home shape every aspect of migrant children’s lives.284 Importantly, work primacy is what drives migrant children into “precarious occupations within the secondary labor market,” which Canizales defines as work with “long hours, low wages, labor market restrictions, and unsafe and unsanitary work conditions.”285 Work primacy, however, does not mean that work is what defines migrant children.286 To the contrary, work primacy 279. Browne et al., supra note 259, at 6 (“[H]istorically the only children who have needed to work have been poor children. Not surprisingly, such children tended to be overlooked by those in society with the power to stop such practices.”). 280. See supra Section I.B. 281. This is also the position that many scholars have taken when writing about international child labor. See e.g., Browne et al., supra note 259, at 4-6 (stating that in the international child labor context, child labor law reformers should not assume that “what is good for Cleveland is good for Bangladesh is good for Guatemala”); Brown, supra note 258, at 154 (“One major part of understanding what is in a child’s best interest is understanding the unique situations in which individual children live.”). 282. Shefali Milczarek-Desai & Tara Sklar, Immigrant Workers’ Voices as Catalysts for Reform in the Long-Term Care Industry, 55 ARIZ. ST. L.J. 891, 909 (2023). 283. Canizales, supra note 16, at 1377. 284. Id. at 1372 (also theorizing that these economic pressures shaped migrant youth’s “educational opportunities, community embeddedness, and family relationships”). 285. Id. 286. See Angela D. Morrison, Framing and Contesting Unauthorized Work, 36 GEO. IMMIGR. L.J. 651, 662 (2022) (contesting the legal framing of low-wage, im/migrant workers 6.MILCZAREK-DESAI.MAN.FIN (3) (DO NOT DELETE) 7/7/2024 8:21 PM 396 ARKANSAS LAW REVIEW Vol. 77:2 showcases migrant children’s deep ties and sense of obligation to their parents and families. Canizales’ interviews unequivocally show that migrant children are, above all, “motivated by empathy for [their] parents’ sacrifices and a sense of responsibility . . . familial loyalty,” and a belief that their “[l]abor migration may alleviate financial pressures on left-behind parents who struggle to provide for other family members.”287 Thus, it is as children and migrants who care deeply for left-behind, needy families that forces migrant youth’s “entry into and relegation to the exploitative occupations that make up the secondary labor market.”288 This is confirmed by Dreier’s reporting. Marcos, whose arm was mangled, stated that even though his work was extremely exhausting and dangerous, it “paid better than he could have imagined—around $100 for each six-hour shift, [which was] more than he could make in a month back home.”289 Although Marcos wished he could go back home, he had come to the United States “because things were so desperate [for his family, and] if he went back, there would be no way to pay off his family’s debt, and they would lose their land.”290 Antoni, who now suffers permanent brain damage as a result of a thirty-foot fall while placing shingles on a roof, was doing this extremely dangerous work because “[r]oofing [work] is plentiful and pays better than many of the other jobs these children can get . . . he says ‘I was sending home $300 a month.’”291 Kevin, who started working for manufacturers who made parts for Ford and General Motors when he was thirteen, further stated that “[i]t’s not that we want to be as “unauthorized workers” and explaining that the law, by ignoring familial and community-based identities, furthers narratives that normalize denying low-wage im/migrant workers employment and labor rights). 287. Canizales, supra note 16, at 1376. 288. Id. at 1376-77 (“For unaccompanied immigrant youth, family ties can contribute to the primacy of work—both because of the economic vulnerability of family and the absence or fragmented nature of ties to family or community. With strong familial economic obligations in the home country and few attachments in the host country, youth have little to do but work.”). 289. The Kids on the Night Shift, supra note 14. 290. Id. 291. Children Risk Their Lives, supra note 8 (“[T]his roofing work force continues to grow as fast as children arrive, anxious to find a way to support themselves and help their families out of poverty.”). 6.MILCZAREK-DESAI.MAN.FIN (3) (DO NOT DELETE) 7/7/2024 8:21 PM 2024 (HIDDEN) IN PLAIN SIGHT 397 working these jobs. It’s that we have to help our families [back home].”292 What motives these children more than anything is their deep desire to help their families back home. When a school exercise asked Marcos what his dream job was, he wrote “[t]o help my family,” and when it asked what made him happy, he responded, “my parents.”293 The theory of work primacy also provides a lens for understanding migrant children’s extreme vulnerability. Without “the human and social capital shared by parents . . . and community ties,” migrant children are often left to navigate the complex reality of life and work in the United States on their own.294 This is made worse when migrant children drop out of school because they then also become “disconnected from K-12 education and supportive school-based [adult] figures” who have their best interests in mind.295 As a result, most migrant children enter the U.S. labor market with very little understanding of what it means to engage in low-wage work and how much they will, in fact, need to work in order to meet their financial obligations. In addition to needing money for “housing, food, clothing, and in some cases, medical attention,” most migrant children also arrive with “migration debt between $3,000 and $11,000, which is often accumulating interest with each day the lender goes unpaid” on top of the financial support they promised to send to their families back home.296 Jose, who is thirteen and works twelve-hour shifts, six days a week, told Dreier that he “didn’t get how expensive everything was” and Marcos, the same boy who almost lost his arm working in a Perdue factory, agreed that “the work was harder than [he] expected.”297 Nery, who started working in a restaurant until three in the morning when he was only thirteen years old, explained that it was not until he arrived in Florida that “he discovered that he owed more than $4,000 [in debt] and had to find his own place to live.”298 Similarly, 292. Alone and Exploited, supra note 7. 293. The Kids on the Night Shift, supra note 14. 294. Canizales, supra note 16, at 1375. 295. Id. 296. Id. at 1381. 297. Alone and Exploited, supra note 7; The Kids on the Night Shift, supra note 14. 298. Alone and Exploited, supra note 7 (Nery’s sponsor, who “kept a running list of new debts: $140 for filling out H.H.S. paperwork; $240 for clothes from Walmart; $45 for a 6.MILCZAREK-DESAI.MAN.FIN (3) (DO NOT DELETE) 7/7/2024 8:21 PM 398 ARKANSAS LAW REVIEW Vol. 77:2 Carolina, who works seventeen-hour night shifts packaging Cheerios confided to Dreier that although she “didn’t have expectations about what life would be like here . . . it’s not what [she] imagined.”299 A seventeen-year-old named Mauricio who works another meat processing job echoed this sentiment when he said to Dreier, “I still have to pay back my debt, so I still have to work.”300 One former migrant child worker who could not find work because employers were worried about violating child labor laws put it best when he stated that, in response to employers who told him to go to school, he thought to himself, yes, I would like to go to school but no one is going to [financially] support me. Just me. Who else? It’s me by myself. . . . It was really difficult for me to get a job. No one wanted to help me. But I needed it. I needed to find a job to sobrevivir (survive), to pay the rent, the food, to take care of myself.301 This explains why, when employers have terminated migrant children in order to comply with child labor laws, many of the children become very upset, saying “they need[] the[ir] jobs to survive” and look at the supervisor who terminated them “with tears in their eyes.”302 The extreme financial pressure migrant children face is further exacerbated by migrant youth’s lack of knowledge regarding workers’ rights and workplace norms. For instance, Andrés, who fell to his death while working on a roofing job, may not have realized the grave danger of not being clipped into a required safety harness.303 Although occupational health and safety violations in the workplace are the most dangerous type of workers’ rights abuses that migrant child workers face, they also taco dinner,” was later prosecuted for labor trafficking but “[t]hat outcome is rare: In the past decade, federal prosecutors have brought only about 30 cases involving forced labor of unaccompanied minors.”). 299. Id. 300. Alone and Exploited, supra note 7. 301. Canizales, supra note 16, at 1381. 302. The Kids on the Night Shift, supra note 14. 303. Children Risk Their Lives, supra note 8 (“After his death, the federal Occupational Safety and Health Administration found that the employer had ‘nine laborers on the crew, but only six harnesses.’”). 6.MILCZAREK-DESAI.MAN.FIN (3) (DO NOT DELETE) 7/7/2024 8:21 PM 2024 (HIDDEN) IN PLAIN SIGHT 399 experience wage-theft, irregular hours, wage instability, and discrimination.304 Perhaps most importantly, work primacy illustrates the stark differences between migrant children and the American children that child labor laws were meant to protect. As Canizales states, migrant children’s “growing up as workers contrasts Western notions of childhood that are idealized in the United States, such as school-going, delayed workplace entry, and dependence on an adult caregiver alongside sentimentalization in the family and community.”305 Understanding the differences between this idealized child and unaccompanied minors’ reality, however, does not mean that migrant child workers have no hopes or dreams beyond working. Both past and present migrant child workers interviewed by Canizales and Dreier expressed a desire to attend school, to learn, and to pursue a brighter future than the dismal present in which they are trapped.306 For instance, Jose said, “I’d like to go to school, but then how would I pay rent?”307 Marcos began attending school in earnest after his arm injury thinking that “[i]f he learned English, he might get a higher-paying job outside the poultry industry . . . [a]t the end of the school year, Marcos was the only ninth grader in the newcomers program to earn a passing score on a statewide standardized test on his first try.”308 But the urgency to make money, especially to send back home, is always in the back of migrant child workers’ minds. For example, Uriel who was interviewed by Canizales stated that not going to school has to do with the fact that when you come here very young and you don’t have support, you are working. You try to study but your mind does not have sufficient energy. You only think about work. . . . That’s why it’s difficult to speak [English].309 304. Canizales, supra note 16, at 1367-77, 1382-83 (commenting that indigenous youth and girls face disproportional levels of racism and sexism in the workplace). 305. Id. at 1376. 306. Id. at 1382-85. 307. Alone and Exploited, supra note 7. 308. The Kids on the Night Shift, supra note 14. 309. Canizales, supra note 16, at 1385. 6.MILCZAREK-DESAI.MAN.FIN (3) (DO NOT DELETE) 7/7/2024 8:21 PM 400 ARKANSAS LAW REVIEW Vol. 77:2 Tomás explained the conflict this way, “[n]o one helped me. I had to pay rent, I had to pay [for] food. Okay, so, either I go to school and I didn’t have money for rent or my food, or I don’t go to school and I have money for rent and to eat.”310 Similarly, Marcos told Dreier that he “felt torn” because reducing his working hours in order to attend and do well in school meant that “most days he was earning just $20,” whereas “[i]f he dropped out and worked full time, he might be able to pay off his family’s debt within a year.”311 Centering migrant child workers’ experiences and viewing them through the lens of work primacy produces a complex and nuanced picture that paints these children not solely as victims of exploitative employers and cruel immigration policies, but also “agentic economic actors and labor migrants who act on their personal and familial best interest” to ensure their and their families’ survival.312 As devastating as it is to hear their stories, they provide an opportunity to create law and policy solutions that move beyond traditional calls for reform to effectively address migrant child workers’ precarious predicament. B. Law and Policy Solutions to Benefit Migrant Child Workers Theories of intersectionality and work primacy illustrate that solutions to the migrant child labor crisis must be tied to migrant child workers’ circumstances, imbued as they are with work primacy. This final Section employs that analytical framing to propose law and policy solutions to benefit migrant child workers. International child labor scholars have posited that “[i]f we want to help working children, we need to find better options for them, not take away the ones they have chosen to survive; if we are to do this effectively, we must take their opinions seriously.”313 In 1996, at the first international conference on child labor, child worker delegates had an opportunity set forth these opinions—they said they wanted to “work with dignity, 310. Id. at 1384. 311. The Kids on the Night Shift, supra note 14. 312. Canizales, supra note 16, at 1372, 1376. 313. Brown, supra note 258, at 154. 6.MILCZAREK-DESAI.MAN.FIN (3) (DO NOT DELETE) 7/7/2024 8:21 PM 2024 (HIDDEN) IN PLAIN SIGHT 401 with hours adapted so that we have time for education and leisure along with professional training, access to good health care, and more actions that would address the root causes of our situation, primarily poverty.”314 Hearing these needs and desires, international child labor scholars and policymakers have made legal and extra-legal recommendations for change that “focus less on formal employment and more on how children are treated.”315 A similar strategy should be employed to address migrant child labor in the United States. First, more data and research concerning America’s unaccompanied, migrant child workers is badly needed. Aside from Hannah Dreier’s reporting and Stephanie Canizales’ field work, very few first-hand descriptions exist of migrant child workers’ experiences both before and after they arrive in the United States. The federal government, as well as state governments, should be involved in collecting as much information as possible on migrant child workers in the same way that the federal government did prior to the passage of federal child labor laws.316 This information should include migrant child workers’ own thoughts and opinions about what kinds of law and policy changes would be beneficial to them—something it seems no one has yet asked them and/or that they have not been able to articulate. It is difficult, if not impossible, to articulate legal needs without an understanding of legal rights.317 For this reason, the collection of data on migrant child workers in the United States should be coupled with mandatory workers’ rights education for migrant youth that emphasizes industry-specific information on occupational safety and health and that also includes rights under wage and hour, collective activity, and anti-discrimination laws. Moreover, this type of comprehensive workers’ rights education is exactly the type of solution that takes migrant child workers’ intersectional identities into consideration because it recognizes 314. Id. at 151 (internal quotations omitted). 315. Id. at 154. 316. WOOD, supra note 49, at 89 (In the early 1900s, “Congress ordered an investigation into the condition of . . . child wage-earners in the United States. The results were published in 1910 and 1911 in nineteen volumes” and in 1912, supported the approval of a bill creating a federal children’s bureau that would “investigate and report upon all matters pertaining to the welfare of children . . . .”) (internal quotations omitted). 317. Milczarek-Desai & Sklar, supra note 282, at 934. 6.MILCZAREK-DESAI.MAN.FIN (3) (DO NOT DELETE) 7/7/2024 8:21 PM 402 ARKANSAS LAW REVIEW Vol. 77:2 that whether lawful or not, these children are working in dangerous jobs and therefore need legal tools and resources to navigate the many hazards in their workplaces. California recently did exactly this by enacting AB 800, a law that requires all public and charter high schools to provide workers’ rights education to their students during one week in April that is designated as “Workplace Readiness Week.”318 Providing basic workers’ rights education that includes industry-specific, health and safety information to all public and charter high school students could be lifesaving for migrant child workers who would not otherwise know that they have the right to certain protections, such as to request a safety harness before climbing on top of a three-story house to lay down roof shingles. Mandatory workers’ rights education for migrant children should also include information about state workers’ compensation laws because these laws would allow migrant child workers to earn income even when they are injured and cannot work. Unlike state unemployment benefits, workers’ compensation laws do not require work authorization (which is not provided to unaccompanied minors).319 State-based workers’ compensation programs, however, seem to have been largely overlooked as a temporary avenue for relief. Although workers’ compensation payouts are small and by no means a panacea, they could provide a basic level of medical care and income while children recover from injuries.320 Depending on what state a migrant child lives in, workers’ compensation amounts might even be more than what they would be for an adult worker because nearly half of all states increase—sometimes by doubling—workers’ compensation awards for children who are injured while working in violation of child labor laws.321 Additionally, workers’ compensation schemes often fix 318. A.B. 800, 2023-2024 Leg., Reg. Sess. (Cal. 2023) (codified at CAL. EDUC. CODE § 49110.5). 319. Milczarek-Desai, supra note 35, at 1215. 320. Benjamin J. Godfrey, 3 Concerning Trends for Injured and Ill Workers, U.S. DEP’T OF LAB. BLOG (Nov. 18, 2022), [https://perma.cc/P9MJ-CZR3]. 321. See ARTHUR LARSON, LEX K. LARSON & THOMAS A. ROBINSON, 5 LARSON’S WORKERS’ COMPENSATION LAW § 66.02 (2023); Rebecca Shafer, Hiring Youth: Minors and Workers Compensation, WORKERS COMP. RES. CEN. (Dec. 14, 2010), [https://perma.cc/TPD8-K5C9]. 6.MILCZAREK-DESAI.MAN.FIN (3) (DO NOT DELETE) 7/7/2024 8:21 PM 2024 (HIDDEN) IN PLAIN SIGHT 403 contingent fees for attorneys, which would provide migrant children, who otherwise could not afford an attorney, with access to justice.322 The obvious disadvantage to this solution, however, is that migrant children may not seek workers’ compensation benefits if they are still able to work despite an injury because they would likely face job loss once their employer is known to have violated child labor laws. The fissured workplace may also be an obstacle to migrant child workers seeking workers’ compensation. Antoni, the boy who suffered permanent brain damage, is “likely eligible for workers’ compensation, but the company that had been hired to do the roofing job had subcontracted it out to a smaller company, which subcontracted it again. The three contractors spent a year arguing over who should be held liable” and only now are in the process of settling Antoni’s claims.323 Another potential solution is predicated upon the reality that unaccompanied minors will continue making the arduous journey north as long as their countries of origin are mired in poverty and violence, and as long as the United States has jobs that need to be filled. Instead of forcing migrant children into oppressive child labor, federal and state governments, including public schools, should provide them with vocational training and jobs programs in sectors of the U.S. economy that are experiencing massive labor shortages such as healthcare, long-term care, and hospitality. Allowing migrant children to work reasonable hours in lawful jobs in such industries is a win-win-win for unaccompanied minors, employers, citizens, and the nation as a whole.324 Research, data collection, workers’ rights education, workers’ compensation, vocational training, and jobs programs are all short-term solutions that recognize the work primacy that 322. Benjamin Douglas, The Unrepresented Class: Why the Ninety-Nine Percent Are Losing the War for Workers’ Compensation, 57 TORT TRIAL & INS. PRAC. L.J. 605, 634 (2022). 323. Children Risk Their Lives, supra note 8. 324. Jobs programs and entry into labor-hungry sectors of the U.S. economy, however, would require providing work authorization documentation to unaccompanied minors. Currently, unaccompanied minors must apply for certain types of immigration relief in order to obtain work authorization. ELLEN MESSALI, IMMIGRATION OPTIONS FOR UNACCOMPANIED CHILDREN (2014), [https://perma.cc/9ZKM-MZ8P]. 6.MILCZAREK-DESAI.MAN.FIN (3) (DO NOT DELETE) 7/7/2024 8:21 PM 404 ARKANSAS LAW REVIEW Vol. 77:2 pervades migrant child workers’ lived realities. Longer-term solutions that do the same will require changes to immigration law and/or policy. One such reform is to treat unaccompanied minors like refugees or asylees who can access federal benefits including cash, food, and medical assistance. Another is to amend federal law so that migrant child workers can access cash and food assistance based on need.325 This, admittedly, is unlikely to occur given the gridlock in Congress, but lawmakers could make it a condition of an immigration reform deal. States could also be part of the solution by removing work authorization restrictions on state-based welfare benefits or creating new cash and food assistance available to migrant child workers and/or their sponsors. A third solution is to expand the Labor Trafficking Visa (“T visa”) definition to include all migrant children engaged in oppressive child labor. This would address migrant child workers’ inability to access work authorization, pathways to legalized status, and an ability to reunite with their parents due to border militarization, draconian immigration policies, and outdated per country immigration caps that make it nearly impossible for Mexican and Central American migrants to lawfully enter the United States.326 Currently, to apply for a T visa, migrant child workers must show they are working as a result of fraud, coercion, or force.327 Broadening this definition to include migrant children who are subject to oppressive child labor addresses migrant children’s work primacy rather than holding it against them. Once a T visa is obtained, migrant children would be able to petition for parents and other family 325. 7 U.S.C. §§ 2011-2036 (2023) (Supplemental Nutrition Assistance Program (SNAP) provisions); 42 U.S.C. §§ 601 et seq. (2022) (Temporary Assistance for Needy Families (TANF) provisions). 326. Naureen Shah, Child Labor Investigation Reveals Immigration Policy Changes We Need Now, ACLU (Mar. 3, 2023), [https://perma.cc/8W9L-WMQ2]; 8 U.S.C. § 1227 (2008). 327. 8 C.F.R. § 214.11 (2022). Migrant child workers who have been subject to labor and/or sex trafficking as defined by the current T visa requirements could and should apply for a T visa immediately. Applying for T visa relief, however, is complicated and often requires the aid of an experienced immigration attorney. Sarah Betancourt & Jennifer B. McKim, For Labor Trafficked Immigrants, T-Visas Are a Life-Saving but Flawed Relief, WGBH (Aug. 7, 2023), [https://perma.cc/4JEM-JL7Y]. 6.MILCZAREK-DESAI.MAN.FIN (3) (DO NOT DELETE) 7/7/2024 8:21 PM 2024 (HIDDEN) IN PLAIN SIGHT 405 members to join them in the United States.328 Alternatively, DHS could broaden its work-based deferred action program to include family reunification for migrant child workers engaged in oppressive child labor.329 Finding a way for parents of migrant child workers to join their children in the United States is key because migrant child workers would not be in the predicament they are in today if their parents could be working to help support them and needy relatives back home. As Dreier’s reporting shows, when migrant children have one or more custodial parents in the country, they are far less likely to engage in oppressive child labor and far more likely to attend school.330 A final, admittedly remote, long-term solution is to overhaul America’s badly broken immigration laws so that adults desperate for work in impoverished countries could legally work in the United States to fill large labor gaps in this country that are forecasted to get much worse as America’s population ages.331 This might mean that parents could be admitted into the country with their children or it might mean that adult family members could obtain temporary visas to work in the United States for limited amounts of time in order to support their families back home.332 Either way, desperate families would not be forced to send their children alone on the perilous journey to the U.S. border to be admitted as unaccompanied minors who must then live and work under horrific circumstances. These solutions are not perfect; indeed, many seem out of reach. They may, however, provide alternatives to enhanced enforcement and increased penalties for violations of existing 328. Betancourt & McKim, supra note 327. 329. Milczarek-Desai, supra note 35, at 1216 n.296. 330. The Kids on the Night Shift, supra note 14 (in interviewing Marcos, Dreier learned that he had “[a]n aunt [who] had come from Guatemala a month earlier with her 15-year-old daughter, Antonieta. His aunt had planned to work while Antonieta went to school . . . .”). 331. Lauren Weber & Alana Pipe, Why America Has a Long-Term Labor Crisis, in Six Charts; While the Hot Pandemic-Era Job Market is Cooling, It Is Set to Remain Tight for Years, WALL ST. J. (Sept. 25, 2023), [https://perma.cc/Q8D7-FREU]. 332. This is how the border functioned for most of American history under what has been referred to as “circular migration patterns” before militarization of the border forced migrants to seek work through unlawful entry. Milczarek-Desai, supra note 35, at 1180-81; see also Tony Payan, “Integration through trade: Labor markets and worker rights in the USMCA” in THE FUTURE OF TRADE: A NORTH AMERICAN PERSPECTIVE, EDS. DAVID A. GANTZ AND TONY PAYAN 127-51 (2023) (describing how temporary work visas might be broadened to ameliorate America’s labor shortages and immigration concerns). 6.MILCZAREK-DESAI.MAN.FIN (3) (DO NOT DELETE) 7/7/2024 8:21 PM 406 ARKANSAS LAW REVIEW Vol. 77:2 child labor laws and, in that way, might help more than hurt migrant child workers. CONCLUSION Thanks in large part to Hannah Dreier’s investigative reporting, the terrible truth about migrant child labor is at the forefront of the American consciousness. Reformers, legal scholars, and policymakers should not squander this moment by calling for revisions to existing laws that, even if they could be made, will drive unaccompanied minors who have no choice but to work deeper into the dangerous, unlawful, underground workforce. This Article provides a new framework for addressing the current migrant child labor crisis by centering migrant child workers’ experiences, employing work primacy theory, and drawing from international labor scholarship. It is a necessary first step to proposing viable solutions to address the oppressive child labor documented in Dreier’s articles and to provide legal protections for migrant children who are trapped in the new economy of exploitation. 7.FLOWER.MAN.FIN (1) (DO NOT DELETE) 7/7/2024 8:25 PM SOWING SEEDS OF RESTRICTION: CULTIVATING INSIGHT INTO FOREIGN AGRICULTURAL HOLDINGS AND EQUAL PROTECTION CONCERNS Payton R. Flower∗ In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights. –James Madison, Property1 I. INTRODUCTION “I’m 8 years old. . . . I want to ask a question: Did Chinese people do something bad to Florida? Why does the government not allow them to purchase property.”2 Spoken by Manman Chen, one of several Chinese Americans to testify before Florida’s State Affairs Committee in April 2023, these words highlight the layered concerns arising due to burgeoning state legislation that limits land ownership by foreign entities.3 The legislative proposal testified on by Chen, HB 1335, was laid on the table in May 2023; however, its Senate equivalent, SB 264, was enacted as one of fifteen pieces of such legislation that emerged between ∗ J.D. Candidate, 2024-25 Editor-in-Chief, Arkansas Law Review. The author extends immense gratitude to Carl Circo, Ben J. Altheimer Professor of Legal Advocacy, for his support, feedback, and expertise throughout the writing process. The author also thanks Daniel Rice, Assistant Professor of Law, for his valuable insight and suggestions for this work. The author also thanks the Arkansas Law Review editorial board, especially her Note and Comment Editor, Emily Rector, and her Articles Editor, MiKayla Jayroe, for their excellent work and advice during the editorial process. Finally, the author thanks her extraordinary parents, Steve and Rhonda, for always supporting her and establishing her passion for the intersection of agriculture and law. This Comment is dedicated to them and other advocates of the industry. 1. James Madison, Property, in 14 PAPERS OF JAMES MADISON 266 (C. Hobson, R. Rutland & W. Rachel eds., 1986). 2. Mitch Perry, Chinese-Americans Fear Hate Crimes and Discrimination As FL Legislation Heads for Final Vote, FLA. PHOENIX (Apr. 20, 2023, 10:21 AM), [https://perma.cc/TW2D-URCU]. 3. Id. 7.FLOWER.MAN.FIN (1) (DO NOT DELETE) 7/7/2024 8:25 PM 408 ARKANSAS LAW REVIEW Vol. 77:2 January and June 2023.4 In total, twenty-four states have enacted these laws.5 Each of these state statutes function to restrict foreign land ownership, with many placing an emphasis on agricultural land in some capacity.6 In May 2023, four Chinese American citizens and a Florida real estate brokerage firm filed a claim alleging that Florida’s statute violated their constitutional rights by restricting most Chinese citizens from purchasing real estate in Florida after July 1, 2023.7 Specifically, the plaintiffs alleged that the law violated the Constitution’s equal protection guarantees by drawing distinctions based on citizenship, alienage, national origin, and animus.8 In turn, Florida has justified the statute on national security and economic grounds.9 Specifically, the Office of Governor Ron DeSantis has stated that the law was enacted “to counteract the malign influence of the Chinese Communist Party in the state of Florida.”10 Other states enacting legislation to restrict foreign land ownership have cited similar reasons, with many specifically focused on threats to state agricultural industries and the food system.11 The United States has long been regarded as “the land of . . . opportunity.”12 However, this increasing focus on protecting farmland has raised the question of whether such opportunities 4. Id.; see also APRIL J. ANDERSON ET AL., CONG. RSCH. SERV. LSB11013, STATE REGULATION OF FOREIGN OWNERSHIP OF U.S. LAND: JANUARY TO JUNE 2023 (2023). 5. Micah Brown, Florida’s Newly Enacted Foreign Ownership Law: Part Two, NAT’L AGRIC. L. CTR. (Aug. 22, 2023), [https://perma.cc/9WVW-BS55]. 6. ANDERSON ET AL., supra note 4. 7. Shen v. Simpson, AM. CIV. LIBERTIES UNION (May 22, 2023), [https://perma.cc/TKV3-EXPT]. 8. Id. 9. The Florida Governor specifically stated, “Protecting Floridians and Florida’s infrastructure from agents like the Chinese Communist Party and other foreign adversaries is important to our state’s security . . . .” Governor Ron DeSantis Cracks Down on Foreign Countries of Concern, Launches SecureFlorida for Property Registration, RON DESANTIS (Nov. 13, 2023) [hereinafter Ron DeSantis], [https://perma.cc/66CP-2EHY]. The Florida Secretary of Commerce also opined that this leadership from DeSantis was “critical to both our national security and the security of Florida’s economy.” Id. 10. Spencer Peek, Florida’s SB 264: Equal Protection Questions Left Unanswered, UNIV. OF MIA. L. REV. (Oct. 17, 2023), [https://perma.cc/UBF5-AS7R]. 11. Foreign Ownership of Agricultural Land: FAQs & Resource Library, NAT’L AGRIC. L. CTR., [https://perma.cc/UPA3-HTX9] (last visited Mar. 31, 2024). 12. Immigration to the United States, 1851-1900, LIBR. OF CONG. (emphasis added), [https://perma.cc/UZG9-2WYF] (last visited Mar. 31, 2024). 7.FLOWER.MAN.FIN (1) (DO NOT DELETE) 7/7/2024 8:25 PM 2024 SOWING SEEDS OF RESTRICTION 409 may lawfully be restricted to only certain classes of people. This Comment will argue that state restrictions on foreign land ownership should be vulnerable to equal protection violations when presented squarely to the Supreme Court. Additionally, it will explore the specific implications for agricultural land given its increasing value and economic importance. This analysis is illustrated by the issue presented in Shen v. Simpson, a recent constitutional challenge to Florida’s land ownership restrictions. Part II will discuss the pertinent history and legal landscape that frames the issue.13 Part III analyzes the holding in Shen v. Simpson and its appeal, criticizing the district court’s reliance on distinguishable and morally abhorrent precedent.14 Additionally, Part III discusses specific implications for the agricultural industry, arguing that the perceived threat to the industry is not proportionate to the restrictive laws.15 Part IV will reiterate these conclusions and summarize what the legal landscape of restrictive state property laws should look like moving forward.16 II. BACKGROUND To engage fully with the constitutional and policy issues spurred by land ownership restrictions, it is important to address the background information on these topics, as well as the history of farmland ownership in the United States. This Part will expand on the increasing value of agricultural land, the country’s past instances of land ownership discrimination, and the implications of the Fourteenth Amendment’s Equal Protection Clause as it pertains to foreign entities and land ownership. A. The Increasing Value of the United States’ Agricultural Land Historically, land has been viewed as one of the greatest financial investment opportunities, with its limitless potential and 13. See infra Part II. 14. See infra Part III. 15. See infra Part III. 16. See infra Part IV. 7.FLOWER.MAN.FIN (1) (DO NOT DELETE) 7/7/2024 8:25 PM 410 ARKANSAS LAW REVIEW Vol. 77:2 advantages reflecting the ideology of the “American Dream.”17 Today, this sentiment remains true: Land, particularly agricultural land, is considered a highly advantageous investment for its ability to maintain its value during times of economic uncertainty.18 As a finite resource, the value of agricultural land continues to increase, propelling its investors to benefit from the economic basics of scarcity.19 Importantly, agricultural land is a key ingredient for those wishing to capitalize on the growing worldwide demand for food.20 The Food and Agricultural Organization of the United Nations has reported that by 2050, food production will need to increase by over 50% to feed the growing global population.21 At the same time, increased pressure is placed on agricultural production as the available supply of farmland decreases due to its repurposing for other human uses.22 This opportunity is even more attractive provided that foreign entities engaged in agricultural production in the United States can be eligible for some farm program benefits from the United States Department of Agriculture (“USDA”) by meeting the same requirements as domestic producers.23 Foreign entities are also not currently prohibited from being eligible for both crop and livestock insurance premium subsidies.24 In addition to agricultural opportunities, foreign entities are also drawn to purchase this land for wind farming, carbon offsetting, or other speculative investments.25 Thus, the importance of agricultural land to the 17. See Laura Barker, Land—The Original American Dream, LAND.COM (Sept. 28, 2018), [https://perma.cc/ETW5-U9PV]. 18. Farmland is a Strong Investment in Uncertain Times, MORNING AGCLIPS (Jan. 5, 2023) [hereinafter Farmland], [https://perma.cc/2R2Z-UJ4X]. 19. Id. 20. Id. 21. The Reasons Why Wealthy Investors Consistently Turn to Farm Investments, NASDAQ (May 2, 2023, 9:49 AM), [https://perma.cc/VX6S-W4Q4]. 22. Id. 23. RENEE JOHNSON, CONG. RSCH. SERV, IF11977, FOREIGN OWNERSHIP AND HOLDINGS OF U.S. AGRICULTURAL LAND (2023) [hereinafter Foreign Ownership]. 24. Id. 25. Jamie Lutz & Caitlin Welsh, Foreign Purchases of U.S. Agricultural Land: Facts, Figures, and An Assessment of Real Threats, CTR. FOR STRATEGIC & INT’L STUD. (Sept. 8, 2021), [https://perma.cc/A3V3-8HQK]. 7.FLOWER.MAN.FIN (1) (DO NOT DELETE) 7/7/2024 8:25 PM 2024 SOWING SEEDS OF RESTRICTION 411 overall food system is undeniable, increasing its monetary value and appeal to investors. One of the most promising attributes of agricultural land to investors is its consistently rising monetary value per acre. Land values have increased significantly in recent years and are expected to continue on this trend.26 Specifically, agricultural land has experienced a steady increase in average farm real estate value per acre since 2008.27 “Farm real estate,” as defined by the National Agricultural Statistics Service, refers to a measurement of the total value of all land and buildings on U.S. farms.28 In 2022, this measurement averaged $3,800 per acre, an increase of $420 per acre, or 12.4% from 2021.29 In the country’s most agriculturally intensive regions, such as the Corn Belt and Northern Plains, the percent increase in farm real estate value from 2021 to 2022 exceeded 20% in several states.30 B. Current Foreign Holdings of Agricultural Land Rising land values provide investors with a strong inflation hedge, as “one of the only investments that historically protects your money from inflation while producing income simultaneously.”31 Thus, it is no surprise that U.S. farmland has become such an attractive investment, for both domestic and foreign entities alike. As of 2021, the United States houses approximately 1.3 billion acres of agricultural land, of which approximately forty million acres are under full or partial foreign ownership.32 This number has increased by over 2.4 million acres since 2020.33 According to the USDA, foreign holdings of agricultural land in the United States increased modestly from 26. Farmland, supra note 18. 27. U.S. DEP’T OF AGRIC., LAND VALUES 2022 SUMMARY 5-7 (Aug. 2022), [https://perma.cc/7ZYB-FHYW]. 28. Id. at 4. 29. Id. 30. Id. at 8. 31. Farmland, supra note 18. 32. Kim Ward, Ask the Expert: How Foreign Investment in US Land Affects Food Security, MICH. STATE UNIV. (Oct. 6, 2023), [https://perma.cc/3XK4-3NAV]. 33. Adam Goldstein, Limits on Foreign Ownership of U.S. Farmland Gain Support in Congress, Despite Skepticism, N.H. BULL. (Mar. 17, 2023, 2:35 PM), [https://perma.cc/EV24-ZPKH]. 7.FLOWER.MAN.FIN (1) (DO NOT DELETE) 7/7/2024 8:25 PM 412 ARKANSAS LAW REVIEW Vol. 77:2 2009 to 2015 and have since increased by an average of 2.2 million acres yearly.34 These millions of acres held by foreign entities comprise an area that is approximately the size of Iowa.35 Canadian investors are responsible for the largest share of this land, holding 29%.36 Several European countries, including the Netherlands, Italy, Germany, and the United Kingdom, collectively hold 33%.37 Contrary to widely held belief, and surprising considering the current level of political concern, investors from China only own a small proportion of this land, about 0.05%.38 These ownership statistics, combined with the economic importance of agricultural land and its related activities, are the cause of increasing concerns from policymakers regarding foreign ownership. C. Discrimination Against Foreign Entities in U.S. Land Ownership 1. Historical Evolvement of “Alien Land Laws” State efforts to limit who can purchase and own U.S. farmland are hardly recent developments. While the federal government does not currently have any established law restricting foreign land ownership, the states have long displayed the propensity to control who may purchase and own this valuable asset.39 In the early years following the Revolutionary War, only white males were permitted to own land, a privilege which also gave them an exclusive right to vote.40 It was not until around the early 1800s that white women began seeing improvements regarding their property rights, at which time states began passing laws to insulate women’s assets from the total control of their 34. U.S. DEP’T OF AGRIC. FARM SERV. AGENCY, FOREIGN HOLDINGS OF AGRICULTURAL LAND THROUGH DEC. 31, 2021, at iv (2023), [https://perma.cc/LGS9-TXBM]. 35. Lutz & Welsh, supra note 25. 36. Id. 37. Id. 38. Id. 39. Ward, supra note 32. 40. John Seven, The Exclusionary History of Voter Registration Dates to 1800, HIST. (Oct. 31, 2023), [https://perma.cc/CC9M-4Y7K]. 7.FLOWER.MAN.FIN (1) (DO NOT DELETE) 7/7/2024 8:25 PM 2024 SOWING SEEDS OF RESTRICTION 413 husbands.41 It would take another twenty years following the Married Women’s Property Act for meaningful change to ensue for African Americans.42 The “Reconstruction Amendments” (comprised of the Thirteenth, Fourteenth, and Fifteenth Amendments) functioned to end slavery, bestow citizenship, and provide due process and “equal protection of the laws” of both state and federal governments.43 In conjunction with the Civil Rights Act, these Amendments enabled African Americans to start acquiring land and homesteading.44 Just as the right to own land has changed in scope for U.S. citizens, history shows similar changes for land ownership by foreign entities. However, rather than portraying consistent expansion in ownership rights, the history of discrimination against foreign entities has ebbed and flowed with the country’s policy objectives and political dealings.45 The United States has enacted restrictions on foreign ownership in three main periods of American history. First, laws were made during the 1880s to fix depressed agricultural conditions, and again in the 1920s because of anti-Japanese sentiment in western states such as California, Oregon, and Washington.46 At the time, these restrictions were commonly known by the traditional term “alien land laws.”47 Although the creation of such laws slowed down in the 1930s, the events of World War II greatly revived the same sentiments, resulting in states once again enacting restrictive land ownership legislation.48 Notably, after the war’s conclusion, a number of these laws were challenged in the Supreme Court on equal protection grounds and held unconstitutional in some state 41. Jone Johnson Lewis, A Short History of Women’s Property Rights in the United States, THOUGHTCO. (Jul. 13, 2019), [https://perma.cc/G2ME-EY4Q]. 42. See Civil Rights and Reconstruction, HIST. SOC’Y OF THE N.Y CTS., [https://perma.cc/HRE8-CBV3] (last visited Mar. 31, 2024). 43. Id. 44. African American Homesteaders in the Great Plains, NAT’L PARK SERV., [https://perma.cc/TGG9-ZKG7] (last visited Mar. 31, 2024). 45. James Alan Huizinga, Alien Land Laws: Constitutional Limitations on State Power to Regulate, 32 HASTINGS L.J. 251, 251 (1980). 46. Id. at 252. 47. Id. at 251. 48. Id. at 252. 7.FLOWER.MAN.FIN (1) (DO NOT DELETE) 7/7/2024 8:25 PM 414 ARKANSAS LAW REVIEW Vol. 77:2 courts.49 The next wave of land ownership restrictions occurred in the 1970s.50 At that point, the push to limit foreign ownership was largely attributed to media reports portraying an increased amount of land investment by foreign interests as well as concern for the vitality of the domestic agricultural industry.51 Today, most land ownership restrictions are targeted toward China, with federal lawmakers expressing concern that Chinese entities may create a national security risk by obtaining large amounts of U.S. farmland.52 2. The Agricultural Foreign Investment Disclosure Act—Measuring Foreign Investment Today Concern over increased foreign land ownership has prompted policymakers to gather statistics on this issue. These numbers have largely informed the recent influx of legislation in this area. The Agricultural Foreign Investment Disclosure Act (“AFIDA”) was passed into law in 1978.53 This legislation established a federal, nationwide system to collect information pertaining to foreign ownership of agricultural land in the United States.54 Prior to AFIDA’s enactment, Congress was faced with growing concern over the increasing number of foreign investments.55 Policymakers recognized that the impact of this foreign ownership was difficult to fully estimate and comprehend, largely due to a lack of accurate data regarding “the nature, magnitude, and scope of foreign investment activity.”56 Thus, AFIDA was crafted to ensure data of this nature was regularly 49. Id.; Takahashi v. Fish & Game Comm’n, 334 U.S. 410, 412 (1948); see also Oyama v. California, 332 U.S. 633, 635 (1948); see infra Section III.2. 50. See Huizinga, supra note 45, at 253. 51. Id. 52. Laura Strickler & Nicole Moeder, Is China Really Buying Up U.S. Farmland? Here’s What We Found, NBC NEWS (Aug. 25, 2023, 5:30 AM), [https://perma.cc/8XTG-DTW6]. 53. Agricultural Foreign Investment Disclosure Act (AFIDA), U.S. DEP’T OF AGRIC., [https://perma.cc/QP76-R5HH] (last visited Mar. 31, 2024). 54. Id.; 7 U.S.C. §§ 3501-3508 (1978). 55. Congressional Considerations on Amending AFIDA, NAT’L AGRIC. L. CTR. (Nov. 29, 2022), [https://perma.cc/8NDP-EJBH]. 56. Id. 7.FLOWER.MAN.FIN (1) (DO NOT DELETE) 7/7/2024 8:25 PM 2024 SOWING SEEDS OF RESTRICTION 415 collected and frequently updated to inform lawmaking and policy decisions.57 AFIDA places requirements on “a foreign person,” defined as “any individual, corporation, company, association, firm, partnership, society, joint stock company, trust, estate, or any other legal entity . . . under the laws of a foreign government or which has its principal place of business located outside of all the States.”58 The Act requires these foreign persons who buy, sell, or otherwise have an interest in U.S. agricultural land to directly provide notice to the USDA or the Farm Service Agency (“FSA”) county office where the land is regarding their holdings and transactions.59 The USDA then compiles this data and issues a regular report.60 Foreign persons are also required to disclose basic information such as their name, address, and citizenship status in addition to specific information regarding their land.61 A failure on behalf of foreign persons to disclose information regarding their holdings may result in penalties and fines.62 In addition to AFIDA, several states also require foreign persons and entities to report their ownership of farmland within the respective state.63 3. The Equal Protection Clause and Foreign Land Ownership State attempts to restrict land ownership by foreign entities have raised constitutional concerns, particularly concerning the Equal Protection Clause of the Fourteenth Amendment. The relevant clause reads: “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.”64 “Equal protection of the laws” has evolved over time to mean that “similarly situated persons are to receive substantially similar 57. Id. 58. 7 U.S.C. § 3508 (1978); see also Foreign Ownership, supra note 23. 59. Foreign Ownership, supra note 23. 60. Id. 61. Micah Brown, Answering to AFIDA: Reporting Requirements of Foreign Agricultural Land Investments, NAT’L AGRIC. L. CTR. (Nov. 15, 2022) [hereinafter Answering to AFIDA], [https://perma.cc/CA88-D4KE]. 62. Foreign Ownership, supra note 23. 63. Answering to AFIDA, supra note 61. 64. U.S. CONST. amend. XIV, § 1. 7.FLOWER.MAN.FIN (1) (DO NOT DELETE) 7/7/2024 8:25 PM 416 ARKANSAS LAW REVIEW Vol. 77:2 treatment from their government.”65 The broad purpose of the Equal Protection Clause is the attempt to secure persons against “intentional and arbitrary discrimination” that may be written into state laws.66 Thus, whenever a state distributes either burdens or benefits to persons within its jurisdiction based on some classification, equal protection analysis may apply.67 Whether a state’s discriminatory law is reasonable depends on the classification made and the interests that are involved. When a law is subject to equal protection analysis, the level of judicial scrutiny that is applied will vary by the type of distinction being made.68 First, the court will determine what level of scrutiny is appropriate and will then consider whether the challenged statute meets that standard.69 This entails consideration of a sliding scale of scrutiny levels that balance the affected interests, becoming the most rigid when discrimination is towards a “suspect class” or “discrete and insular minorities.” 70 This level of review is coined as “strict scrutiny” and is differentiated from the lower levels of scrutiny (rational basis review and intermediate scrutiny) as it requires the challenged state government to demonstrate that a challenged classification is precisely “tailored to serve a compelling [government] interest.”71 Ultimately, a discriminatory state statute will only pass strict scrutiny evaluation if the state is able to show that use of the classification is “‘necessary . . . to the accomplishment’ of its purpose or the safeguarding of its interest.”72 Under this analysis, an appreciable amount of over-inclusiveness or under-inclusiveness will weigh significantly against the challenged law. When considering whether strict scrutiny applies, the court will first determine if the classification in question is against a 65. Tapalian v. Tusino, 377 F.3d 1, 5 (1st Cir. 2004); Niemic v. UMass Corr. Health, 89 F.Supp. 3d 193, 210 (D. Mass. 2015). 66. 5 THOMAS SMITH & JEANNE PHILBIN, MICHIGAN CIVIL JURISPRUDENCE CONSTITUTIONAL LAW § 253 (2024). 67. APRIL J. ANDERSON, CONG. RSCH. SERV., IF12391, EQUAL PROTECTION: STRICT SCRUTINY OF RACIAL CLASSIFICATIONS (2023). 68. 16B AM. JUR. 2D Constitutional Law § 849 (2024). 69. Id. 70. Id.; see also United States v. Carolene Prods. Co., 304 U.S. 144, 153 n.4 (1938). 71. 16B AM. JUR. 2D Constitutional Law § 849; see also City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985). 72. In re Griffiths, 413 U.S. 717, 721-22 (1973). 7.FLOWER.MAN.FIN (1) (DO NOT DELETE) 7/7/2024 8:25 PM 2024 SOWING SEEDS OF RESTRICTION 417 protected class.73 Generally, strict scrutiny will always apply for certain classifications, such as those that are based on race and religion.74 Additionally, and highly relevant to this issue, the Supreme Court has held that strict scrutiny applies when classifications are made based on national origin, citizenship, and alienage.75 For example, state laws have been found unconstitutional when they sought to deny non-citizens access to welfare benefits, education, and opportunities as licensed professionals.76 However, the Court has also greatly limited Fourteenth Amendment protections afforded to non-citizens in many ways. For instance, the Supreme Court held in Foley v. Connellie, that citizenship-based restrictions will only trigger rational basis review (the lowest level of scrutiny) when they pertain to voting, holding elective office, serving on a jury, or serving in “important nonelective executive, legislative, and judicial positions.”77 Importantly, rational basis review also applies when citizenship-based classifications are used in federal laws and challenged under Fifth Amendment Due Process.78 Generally, the Supreme Court has held that the federal government shall be given leeway in discriminating for the purposes of immigration.79 Other classifications that arise in foreign land ownership restrictions include race, alienage, and national origin. The courts have offered succinct definitions for each of these classifications over time. Race-based discrimination has been recognized as “that which singles out ‘identifiable classes of persons . . . solely because of their ancestry or ethnic characteristics.’”80 The term “alienage” has been defined as simply “not being a citizen of the United States.”81 Further, national origin has been recognized to 73. City of Cleburne, 473 U.S. at 440. 74. See Korematsu v. United States, 323 U.S. 214, 216 (1944); Loving v. Virginia, 388 U.S. 1, 11 (1967); Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 546 (1993). 75. See Graham v. Richardson, 403 U.S. 365, 371-72 (1971); in re Griffiths, 413 U.S. at 722; Korematsu, 323 U.S. at 216; infra Section III.1. 76. See Graham, 403 U.S. at 371; in re Griffiths, 413 U.S. at 722-23. 77. Foley v. Connellie, 435 U.S. 291, 296 (1978). 78. See Matthews v. Diaz, 426 U.S. 67, 80 (1976). 79. See Chae Chan Ping v. United States, 130 U.S. 581, 603-04 (1889). 80. Rice v. Cayetano, 528 U.S. 495, 496 (2000). 81. United States v. Osorto, 995 F.3d 801, 822 (11th Cir. 2021). 7.FLOWER.MAN.FIN (1) (DO NOT DELETE) 7/7/2024 8:25 PM 418 ARKANSAS LAW REVIEW Vol. 77:2 differ from alienage as it instead specifically relates to “the particular country in which one was born.”82 The Supreme Court has also held that some heightened level of scrutiny (although not specifically referred to as strict scrutiny) may be applied where a classification is based on animus, or “a bare congressional desire to cause harm” to some specified group.83 While the Supreme Court has not held that the heightened scrutiny applied to animus claims is reserved for members of protected classes, the targets of such laws generally tend to be “politically unpopular minorities.”84 This doctrine requires the Court to address problems of discrimination by “scrutinizing the reasons for government action.”85 Under this analysis, a law based on animus will be unconstitutional regardless of whether it may be justifiable on other grounds.86 III. ANALYSIS This Part is divided into three main Sections: (A) how a Florida court interpreted the constitutionality of a land ownership law in Shen v. Simpson; (B) why that court’s holdings are based on improper precedent and vulnerable to further equal protection challenges on appeal to the Supreme Court; and (C) how this legislation relates to agricultural policy concerns and why the perceived threat to agriculture is not proportionate to the state action. A. Florida’s Statute Upheld on Equal Protection Grounds in Shen v. Simpson Florida’s statute restricting foreign land ownership, FLA. STAT. ANN. §§ 692.201-.205 (formerly SB 264 before its codification), is one of the most restrictive pieces of recently 82. Id. 83. See U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528, 534 (1973); United States v. Windsor, 570 U.S. 744, 776 (2013) (Roberts, C.J. dissenting). 84. Dale Carpenter, Windsor Products: Equal Protection from Animus, 2013 SUP. CT. REV. 183, 186 (2013). 85. Id. 86. Id. 7.FLOWER.MAN.FIN (1) (DO NOT DELETE) 7/7/2024 8:25 PM 2024 SOWING SEEDS OF RESTRICTION 419 enacted legislation focused on foreign investment.87 Specifically, Section 204 of the statute states that entities such as the People’s Republic of China, the Chinese Communist Party, other Chinese political parties, business partnerships organized under Chinese law, and “[a]ny person who is domiciled in the People’s Republic of China and who is not a citizen or lawful permanent resident of the United States” are prohibited from directly owning, controlling interest in, or acquiring real property in the state.88 Not surprisingly, the statute quickly became the focus of legal challenges on constitutional grounds.89 In May 2023, four Chinese citizens living in Florida and a Florida real estate brokerage firm that primarily serves Chinese residents filed a lawsuit, Shen v. Simpson, against the State of Florida in the United States District Court for the Northern District of Florida.90 Each of the four Chinese citizens either already owned Florida real estate, planned to buy some in the future, or both.91 Additionally, each of the four citizens held nonimmigrant visas, indicating that they were lawfully in the United States but not permitted to reside permanently.92 They claimed that Florida’s new foreign ownership law violated the Equal Protection Clause and sought an order to prevent its implementation and enforcement.93 Specifically, the third paragraph of the plaintiffs’ complaint contended that the law’s violation of equal protection under the Fourteenth Amendment “recalls the wrongful animus of similar state laws from decades past—laws that were eventually struck down by courts or repealed by legislatures.”94 On August 17, 2023, Judge Allen Winsor issued his order denying the plaintiffs’ motion.95 His opinion held that the 87. ANDERSON ET AL., supra note 4. 88. FLA. STAT. ANN. § 692.204 (2023). 89. Id.; ANDERSON ET AL., supra note 4. 90. ANDERSON ET AL., supra note 4. 91. Shen v. Simpson, No. 4:23-cv-208-AW-MAF, 2023 WL 5517253, at *1, *2 (N.D. Fla. Aug. 17, 2023). 92. Micah Brown, Federal Judge Decides Not to Halt Enforcement of Florida’s Foreign Ownership Law, THE NAT’L AGRIC. L. CTR., [https://perma.cc/KP8D-ADLV] (last visited Jan. 20, 2024). 93. Id. 94. Complaint at 3, Shen v. Simpson, No. 4:23-cv-208 (N.D. Fla. May 22, 2023). 95. Brown, supra note 92. 7.FLOWER.MAN.FIN (1) (DO NOT DELETE) 7/7/2024 8:25 PM 420 ARKANSAS LAW REVIEW Vol. 77:2 plaintiffs did not meet the standard for obtaining a preliminary injunction because of failure to show a substantial likelihood of success on the merits.96 Regarding the equal protection portion of the holding, Judge Winsor denied the motion on three main premises: (1) failure to show that heightened judicial scrutiny applied; (2) failure to show that unlawful animus motivated the legislature; and (3) failure to show that the Florida law lacks a rational basis for its existence.97 Each of these key holdings will be summarized below. 1. The Application of Heightened Judicial Scrutiny Judge Winsor’s primary basis for denial of the Shen plaintiff’s motion was rooted in the argument that a heightened level of scrutiny should not apply, and that the Florida state government consequently faced a low bar to justify their discriminatory law.98 As a starting point, Judge Windsor contended that the law was not even facially discriminatory. Rather, Judge Winsor framed the law as classifying individuals based on their domicile, not their race or ancestry.99 He further denied that a “proxy” argument would be insufficient on the basis that residency and birthplace are distinguishable classifications that do not inherently overlap one another.100 Given Judge Winsor’s interpretation of the racial discrimination argument, the alienage classification comprised the bulk of his argument. In that vein, Judge Winsor contended that “[b]inding Supreme Court precedent controls this issue.”101 Judge Windsor cited a string of Fourteenth Amendment cases spanning all the way back to 1879, offering early sentiments on the ability and power of the states to control foreign ownership of the land within their borders.102 Specifically, much of Judge Winsor’s reasoning relied on the precedent that was set forth in a series of Supreme Court cases that are collectively referred to as 96. Shen, 2023 WL 5517253, at *3. 97. Id. at *7-14. 98. Id. at *8. 99. Id. at *7. 100. Id. 101. Shen, 2023 WL 5517253, at *8. 102. Id. 7.FLOWER.MAN.FIN (1) (DO NOT DELETE) 7/7/2024 8:25 PM 2024 SOWING SEEDS OF RESTRICTION 421 the Terrace Cases.103 Each of these cases upheld “alien land laws” on the basis that states have both the power and a clear interest in determining who may own and occupy their lands for safety and other rational purposes.104 Judge Winsor, denying any argument that this series of cases has ever been implicitly overturned by subsequent contrary holdings of several state and federal courts, concluded that the Shen plaintiff’s precedent was directly on point; therefore, a constitutional obligation existed for the lower courts to follow.105 2. Unlawful Animus Argument Judge Winsor further disagreed that Florida’s law violated the Equal Protection Clause due to the legislature’s motive of unlawful animus.106 Importantly, he established that plaintiffs bear the burden of showing that the discrimination was fueled by intent and that the showing of an adverse impact on a protected class will not be sufficient.107 The court acknowledged that “[d]iscerning legislative purpose is not always easy,” while pointing out that the plaintiffs did not present any direct evidence.108 Additionally, Judge Windsor presented dissatisfaction with the plaintiffs’ inability to point to other circumstantial forms of evidence, such as procedural or substantive departures, or the presence of less discriminatory alternatives that Florida could have implemented to achieve the same policy purposes.109 While the plaintiffs did present legislative committee reports to demonstrate animus, Judge Winsor found that these reports merely “evince awareness of the consequences for aliens domiciled in China” and do not rise to the necessary level of a discriminatory purpose.110 Additionally, the court determined that statements made by the Florida governor or legislators regarding the enactment of the 103. Id. 104. Id.; see also Brown, supra note 92. 105. Shen, 2023 WL 5517253, at *9, *10. 106. Id. at *12. 107. Id. 108. Id. 109. Id. at *13; see also Washington v. Davis, 426 U.S. 229, 242 (1976). 110. Shen, 2023 WL 5517253, at *13. 7.FLOWER.MAN.FIN (1) (DO NOT DELETE) 7/7/2024 8:25 PM 422 ARKANSAS LAW REVIEW Vol. 77:2 statute also do not demonstrate any clear animus, but rather have motivations that are unrelated to any protected traits.111 Affording a presumption of legislative good faith, this argument concludes that even if a few statements could be construed as unlawful animus, they would only be “minimally probative at best.”112 This is based on the premise that animus cannot be proven by an indication that only one or two legislators were acting with such intent, but rather that the plaintiffs must demonstrate that there was unlawful motivation by the legislature as a whole.113 3. Florida’s Rational Basis for Enacting SB 264 Finally, operating under the decision that heightened judicial scrutiny should not apply based on the classification nor the presence of discriminatory animus, Judge Winsor concluded that Florida’s law would easily overcome the low bar of rational basis review.114 He described the high burden that plaintiffs face in rational basis review, including the fact that “[t]hey must ‘negative every conceivable basis which might support’ the law.”115 Provided this standard, Judge Winsor was not persuaded that the plaintiffs proved that the law provided no real benefit.116 Additionally, he notes that the state has offered numerous justifications, each of which was “consistent with those recognized as sufficient in the Terrace Cases.”117 Judge Winsor specifically drew an analogy to Florida’s legitimate government interest in protecting its farmland and agricultural industries by citing to Terrace v. Thompson: “The quality and allegiance of those who own, occupy and use the farm lands within its borders 111. Id. 112. Id. 113. Id. 114. Id. at *14. 115. Shen, 2023 WL 5517253, at *14 (citing FCC v. Beach Commc’ns, Inc. 508 U.S. 307, 314 (1993) (quoting Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364 (1973))). 116. Shen, 2023 WL 5517253, at *14. 117. Id. 7.FLOWER.MAN.FIN (1) (DO NOT DELETE) 7/7/2024 8:25 PM 2024 SOWING SEEDS OF RESTRICTION 423 are matters of highest importance and affect the safety and power of the state itself.”118 Following Judge Winsor’s order denying their motion, the Shen plaintiffs appealed to the Eleventh Circuit and continued to argue that Florida’s law violates the Equal Protection Clause.119 Additionally, they chose to slightly narrow the scope of their claim to only the section of SB 264 that would directly affect them.120 On February 1, 2024, the Eleventh Circuit temporarily halted enforcement of the law against two of the plaintiffs on the grounds that the law was preempted by federal law establishing a system of national security review for such real estate purchases.121 Notably, the injunction was not granted on the equal protection argument.122 However, Circuit Judge Nancy G. Abudu wrote a separate concurring opinion to argue that the plaintiffs had demonstrated a substantial likelihood of success on the merits of an equal protection claim.123 In doing so, Judge Abudu specifically criticized the lower court’s reliance on Terrace and other outmoded precedents: “Those holdings may have had support in 1923, but it is now 2024.”124 With Shen v. Simpson now pending another possible appeal, foreign land ownership restrictions are once again likely to be presented before the United States Supreme Court. 118. Id. (quoting Terrace v. Thompson, 263 U.S. 197, 221 (1923)). 119. Kevin Koushel & Bilzin Sumberg, Updates on Florida Law Restricting Foreign Ownership of Real Property: Proposed Rules and Shen v. Simpson, JDSUPRA (Nov. 20, 2023), [https://perma.cc/MMH8-6XCY]. 120. Id. 121. ACLU Applauds Appeals Court Decision Halting Enforcement of Florida Law That Bans Many Immigrants from China and Other Countries from Buying Homes, AM. CIV. LIBERTIES UNION (Feb. 1, 2024, 7:00 PM), [https://perma.cc/JL8K-VYKD]. 122. Id. 123. Caden DeLisa, U.S. Appeals Court Grants Partial Injunction Against Foreign Land Ownership Limitations, THE CAPITOLIST (Feb. 2, 2024), [https://perma.cc/J7N5-NNK6]. 124. Id. 7.FLOWER.MAN.FIN (1) (DO NOT DELETE) 7/7/2024 8:25 PM 424 ARKANSAS LAW REVIEW Vol. 77:2 B. SB 264 and Similar Foreign Land Ownership Laws Should Be Vulnerable to Equal Protection Challenges When Squarely Considered by the Supreme Court As state tendencies to pass restrictive legislation on foreign landowners have fluctuated with the United States’ political sentiments throughout history, scholars have repeatedly predicted that such laws would be struck down on equal protection grounds when presented to the Supreme Court.125 Notably, the constitutional validity of such laws has not been squarely considered by the Supreme Court in over a century.126 Thus, it is easy to rationalize that the Court’s interpretation of this issue has likely evolved in light of the equal protection doctrine’s expansion and society’s changed perceptions.127 As argued by the Shen plaintiff-appellants in their reply brief, “the State’s appeal to historical practice is beside the point. The equal protection analysis does not turn on whether discrimination was historically acceptable.”128 Specifically, the holding of the court in Shen v. Simpson should be vulnerable to equal protection violations due to its outmoded reliance on the Terrace Cases and the moral and ethical issues perpetuated by that reliance.129 125. Scholarship dating back to 1947 has noted that “the Supreme Court of the United States will have abundant opportunity to reconsider the constitutionality of the alien land laws” and that “the alien land laws are legislation of racism which the court can little afford to sanction.” The Alien Land Laws: A Reappraisal, 56 YALE L.J. 1017, 1019, 1036 (1947). Another article from 1953 predicted that legal progressions indicated that “when the problem is squarely considered by the Supreme Court the . . . decisions will be reversed.” Fintan M. Flanagan et al., Constitutional Problems Under the Alien Land Laws, 36 MARQ. L. REV. 267, 267 (1953); see also Sherman A. Itlaner, Constitutional Law-Equal Protection-Alien Land Law Violates Fourteenth Amendment, 51 MICH. L. REV. 742, 742-43 (1953) (stating that “the earlier decisions might well be reversed if the Court were again directly faced with the necessity of determining the validity of the alien land laws.”); James R. Mason, Jr., “PSSST, Hey Buddy, Wanna Buy a Country?” An Economic and Political Policy Analysis of Federal and State Laws Governing Foreign Ownership of United States Real Estate, 27 VAND. J. TRANSNAT’L L. 453, 460-61 (1994) (stating that “the Supreme Court retreated from the hard line position of Terrace and hinted that if the question were squarely presented, it might entirely reverse its position regarding state land laws that discriminated against Asians.”). 126. Flanagan et al., supra note 125, at 267. 127. The plaintiffs in Shen v. Simpson critically “argued that the Supreme Court would not decide the Terrace Cases today the way it did in 1923.” Shen v. Simpson, No. 4:23-cv-208-AW-MAF, 2023 WL 5517253, at *10 (N.D. Fla. Aug. 17, 2023). 128. Reply Brief for Plaintiffs-Appellants at 11, Shen v. Simpson, No. 23-12737 (11th Cir. Nov. 16, 2023). 129. See infra Part III.B.1-2. 7.FLOWER.MAN.FIN (1) (DO NOT DELETE) 7/7/2024 8:25 PM 2024 SOWING SEEDS OF RESTRICTION 425 1. The Terrace Cases—Overt Discrimination or Good Law? Judge Winsor’s opinion in Shen v. Simpson critically relies on the leading case that has historically justified discriminatory alien land laws, Terrace v. Thompson.130 Decided in 1923, the over 100-year-old opinion was one of four cases decided by the Supreme Court regarding discrimination against foreign residents that has since justified states’ ability to insulate their agricultural land from foreign owners.131 These cases considered discriminatory laws that specifically impacted Japanese alien residents within the United States at a time when anti-Japanese sentiment was paramount in the western states.132 The legal landscape created by these cases fundamentally illustrates the ideology that has empowered states such as Florida to modernly limit foreign investment in agricultural land. However, these cases are likewise riddled with clear bias and outmoded considerations, bringing into question whether their holdings should maintain their value over a century later. Terrace v. Thompson was decided on November 12, 1923.133 There, the Court considered the constitutionality of Washington’s Anti-Alien Land Law on due process and equal protection grounds.134 The issue was brought before the courts when the Terraces, citizens of the United States and the state of Washington, wished to lease their agricultural land to Nakatsuka, a Japanese resident whom their complaint described as a “capable farmer” who would “be a desirable tenant of the land.”135 However, the Terraces were prohibited from doing so by Section 33 of Article 2 of the state’s constitution, which prohibited foreign land ownership except by those who declared an intention to become citizens.136 Writing for the Court, Justice Butler 130. See Shen, 2023 WL 5517253, at *7; Flanagan et al., supra note 125, at 267. 131. Nathan Hale, Fla. Property Law Appeal May Hinge on 100-Year-Old Decision, LAW360 (Aug. 21, 2023, 4:43 PM), [https://perma.cc/E98M-XRWR]. 132. See, e.g., Doug Blair, The 1920 Anti-Japanese Crusade and Congressional Hearings, SEATTLE CIV. RTS. & LAB. HIST. PROJECT, [https://perma.cc/F7VS-34AC] (last visited Apr. 6, 2024). 133. Terrace v. Thompson, 263 U.S. 197, 197 (1923). 134. Id. at 211. 135. Id. 136. Id. at 212. 7.FLOWER.MAN.FIN (1) (DO NOT DELETE) 7/7/2024 8:25 PM 426 ARKANSAS LAW REVIEW Vol. 77:2 affirmed dismissal, articulating that a state has the power to deny aliens the right to own land, and that they may also make classifications based on declaratory intent to become citizens.137 Notably, much of the equal protection analysis elaborated in Terrace is riddled with anti-Japanese sentiment that was consistent in the western states at the time. The opinion states that just as the rights of aliens differ from those of citizens, so do the rights of “alien declarants differ substantially from those of nondeclarants.”138 This was grounded in the ideology that those alien residents who renounced any allegiance to their country of origin to become U.S. citizens should be fundamentally distinguished and afforded greater privileges than those who did not.139 However, this is contextualized by the fact that the state’s naturalization laws at the time only permitted certain races to be eligible for citizenship: “the natives of European countries are eligible. Japanese, Chinese and Malays are not.”140 Despite this nuance, the Court nonetheless maintained that inclusion of the eligible declarants in the same class as citizens did not function to discriminate against non-declarants unjustly.141 Essentially, the opinion maintained that—because the law applied to all persons, regardless of their race or color, who had not declared intention to become citizens—it did not discriminate arbitrarily.142 Additionally, the Terrace Court, in similar fashion as Florida and other state legislatures attempting to limit foreign land ownership today, placed significant emphasis on the importance of protecting agricultural land: In the case before us, the thing forbidden is very different. It is not an opportunity to earn a living in common occupations of the community, but it is the privilege of owning or controlling agricultural land within the State. The quality and allegiance of those who own, occupy and use the farmlands within its borders are matters of highest 137. Id. at 221-22, 224. 138. Terrace, 263 U.S. at 218. 139. Id. at 218-19. 140. Id. at 220. 141. Id. 142. Id. 7.FLOWER.MAN.FIN (1) (DO NOT DELETE) 7/7/2024 8:25 PM 2024 SOWING SEEDS OF RESTRICTION 427 importance and affect the safety and power of the State itself.143 Immediately following the Terrace decision, its companion cases were decided on the same rationale. On the same day, the Court upheld California’s identical law in the case of Porterfield v. Webb.144 Only a few days later, two additional cases, Frick v. Webb and Webb v. O’Brien, were decided on the same reliance.145 Frick v. Webb upheld the constitutional validity of the California law’s provision which inhibited ineligible aliens from owning stock in landholding corporations, while Webb v. O’Brien held that cropping contracts giving aliens interests in land violated the state’s restrictive legislation.146 The most straight-forward criticism of the Court’s reliance on the Terrace Cases is that the holding in Terrace has fundamentally been limited by contrasting subsequent cases.147 On this basis, the argument is that the case “no longer excuses the overt discrimination included in Florida’s new alien land law.”148 Specifically, critics, as well as the Shen plaintiffs, have pointed to the later holdings in Oyama v. California, Takahashi v. Fish & Game Commission, Fujii v. State, and others, arguing that they have effectively weakened Terrace’s application.149 In 1948, the Oyama case held that Mr. Oyama, the son of Japanese immigrants, had been deprived of his Fourteenth Amendment rights by California’s repossession of land purchased by his non-citizen father while the family was incarcerated in a Japanese internment camp.150 Thus, that opinion fundamentally departed from the holding in Terrace, opining that even when a law did not single out the Japanese by name, it would still constitute a Fourteenth Amendment violation where the underlying 143. Terrace, 263 U.S. at 221. 144. See Alien Land Laws: A Reappraisal, supra note 125, at 1022. 145. Id. at 1022-23. 146. Id. 147. Foley Hoag Files Amicus Brief in Appeal Related to Florida’s Alien Land Law, FOLEY HOAG (Oct. 16, 2023), [https://perma.cc/P4FP-DUH5]. 148. Id. 149. See Itlaner, supra note 125; Flanagan et al., supra note 125; Alien Land Laws: A Reappraisal, supra note 125. 150. See generally Oyama v. California, 322 U.S. 633. 634-36 (1948). 7.FLOWER.MAN.FIN (1) (DO NOT DELETE) 7/7/2024 8:25 PM 428 ARKANSAS LAW REVIEW Vol. 77:2 naturalization laws operated to exclude them.151 Judge Winsor hurdled this argument by contending that the issue addressed by Oyama was “entirely different” than what was presented in both Terrace and Shen, and that “because the Supreme Court itself has not overruled the Terrace Cases, this court must apply them.”152 Notably, several state cases have held a variety of alien land laws unconstitutional since Oyama and repealed their discriminatory land laws.153 This Comment argues that, even without consideration of this contrary case law, Terrace is no longer applicable. 2. On Moral and Legal Grounds, Terrace Cannot Stand to Justify Modern Discriminatory Property Laws While Judge Winsor chose to read the Terrace decision broadly, there are ample reasons supporting that the Shen district court holding could have come out differently. Indeed, a narrower reading of that decision can and should result in a different outcome when squarely considered by the Supreme Court. This is true on the basis that the classification considered in Terrace was fundamentally different from the one drawn in Florida’s statute, which supports that its application is not as on point as Judge Winsor would contend. Additionally, it must be noted that the Terrace decision was premised on social and moral considerations which are now clearly considered wrong under modern-day equal protection. In essence, the enforcement of Terrace amounts to courts turning back the clock over 100 years to the past, failing to account for the vast Fourteenth Amendment breakthroughs that have assured protection for vulnerable classes since that time. First, the holding in Terrace can be distinguished due to its key factual differences from the classification made in Shen.154 Specifically, the Florida law differs from the Washington law 151. Flanagan et al., supra note 125, at 270. 152. Shen v. Simpson, No. 4:23-cv-208-AW-MAF, 2023 WL 5517253, at *11-12. (N.D. Fla. Aug. 17, 2023). 153. Mason, supra note 125, at 461. 154. ACLU attorney Ashley Gorski has stated that Terrace cannot control in Shen: “Not only has it been superseded by decades of precedent, but it’s factually distinguishable.” Hale, supra note 131. 7.FLOWER.MAN.FIN (1) (DO NOT DELETE) 7/7/2024 8:25 PM 2024 SOWING SEEDS OF RESTRICTION 429 considered in Terrace as it is express in singling out individuals who are domiciled in specific countries and applies very distinct penalties to those domiciled in China.155 Thus, just upon first glance, this classification is outwardly more express and restrictive, diminishing any applicable value of Terrace. While Terrace declared that alien land laws were reasonable based on their broad application to all aliens eligible for citizenship, there is nothing broad about the distinctions made in SB 264.156 Rather, the statute specifically calls out countries of concern, and explicitly restricts the ability of those domiciled in China to own property.157 Thus, an attempt to hedge Terrace as directly controlling precedent is illogical—at issue in Shen is an entirely different law. The district court overextended Terrace’s purview, ratifying much more explicit discrimination. It is noteworthy that the Terrace cases “predated several critical developments in equal protection law,” fundamentally limiting their relevance to modern-day property laws.158 While Terrace was decided in 1923, the modern strict scrutiny test was not created until the 1960s.159 It was at that time that the Supreme Court developed the “formulaic narrowly-tailored-to-a-compelling-interest test” that characterizes modern strict scrutiny analysis.160 The Terrace Court did not walk through this tailoring process, meaning its logic was devoid of the necessary balancing test that is required to make such overt, discriminatory classifications today. This is especially pertinent considering the racial motivations underlying the Terrace classification that was crafted to appear facially neutral. Additionally, the Court’s view of citizenship discrimination has evolved significantly since the Terrace holding was issued. The Terrace decision should be 155. Id. 156. NAPABA and APABA Tampa Bay Disagree with Federal Court’s Decision to Uphold Florida’s Alien Land Law, NAPABA (Aug. 17, 2023), [https://perma.cc/P3JV-Q82D]. 157. See FLA. STAT. ANN. § 692.204 (2023). 158. Plaintiffs-Appellants’ Principal Brief at 25, Shen v. Simpson, No. 23-12737 (11th Cir. Oct. 2, 2023). 159. See RICHARD H. FALLON JR., THE NATURE OF CONSTITUTIONAL RIGHTS 13 (2019). 160. Richard H. Fallon Jr., Strict Judicial Scrutiny, 54 UCLA L. REV. 1267, 1274 (2007). 7.FLOWER.MAN.FIN (1) (DO NOT DELETE) 7/7/2024 8:25 PM 430 ARKANSAS LAW REVIEW Vol. 77:2 limited by the Court’s evolvements to recognize citizenship and alienage as protected classes requiring strict scrutiny in most situations.161 These modern evolvements dictate that the Terrace ideology is no longer the blueprint for assessing these classifications. Although the Supreme Court has not yet applied strict scrutiny to state laws that classify based on domicile, its inextricable linkage to race, citizenship, and alienage in instances such as SB 264 warrant its application.162 Additionally, provided the morally reprehensible aspects of Terrace, there is support for reading opinions such as this one narrowly.163 A broad interpretation of that opinion, with failure to recognize the harmful motivations behind it, wrongfully perpetuates inapplicable legal principles in the modern day. For principles as fundamental as equal protection, it is critical to view legal reasoning and morality holistically, provided that “[w]hen precedents become morally shameful, the quality of their reasoning ceases to matter.”164 There are incentives for today’s Supreme Court to strive towards cultural and moral respectability, which requires a departure from past legal reasoning that reads as reprehensible in modern times.165 As the Shen petitioners argued in their principal brief on appeal, “lower courts are under no obligation to extend a discredited Supreme Court case ‘by even a micron.’”166 Equal protection analysis necessarily entails moral considerations, and land ownership discrimination is no 161. See Graham v. Richardson, 403 U.S. 365, 376 (1971) (holding that state statutes denying welfare benefits to resident aliens violated the Equal Protection Clause, stating that such classifications “are inherently suspect and are therefore suspect to strict judicial scrutiny”); Nyquist v. Mauclet, 432 U.S. 1, 1 (1976) (holding that classifications based on alienage are subject to close judicial scrutiny, noting that where a statute only harms aliens, it does not matter if the bar against them is not absolute). 162. See generally Edward A. Zelinsky, Citizenship and Worldwide Taxation: Citizenship as an Administrable Proxy for Domicile, 96 IOWA L. REV. 1289, 1291 (2011) (illustrating an example of how domicile and citizenship may operate as proxies for one another due to their significant overlap). 163. See, e.g., Samuel E. Stumpf, The Moral Element in Supreme Court Decisions, 6 VAND. L. REV. 41, 41, 45 (1952) (discussing the necessity of morality permeating the judicial process). 164. See Daniel B. Rice, Judicial Moral Prophecy, 101 WASH. UNIV. L. REV. 177, 177 (2023). 165. See id. at 202-03. 166. Plaintiffs-Appellants’ Principal Brief at 25, Shen v. Simpson, No. 23-12737 (11th Cir. Oct. 2, 2023). 7.FLOWER.MAN.FIN (1) (DO NOT DELETE) 7/7/2024 8:25 PM 2024 SOWING SEEDS OF RESTRICTION 431 exception. On these grounds, the Supreme Court would be justified in refusing to extend the Terrace precedent by even an iota. Today, there is little doubt that the driving forces behind the classification in Terrace, as well as the reasoning that upheld it, are morally problematic: “It is clear that the declarant category was consciously deployed to effectuate racial discrimination.”167 After all, the federal naturalization regime at issue was expressly based on race and was created for the purpose of keeping the United States white and minimizing any racial diversity.168 However, Terrace was critically decided at a time where society and the Court were less skeptical of overt racial and citizenship classifications.169 Over 100 years later, there are ample indications that land ownership laws such as Florida’s are being enacted to some extent to still carry out such discrimination.170 Thus, it is paramount that strict scrutiny should be applied, and the outcome should be determined by the modern tailoring analysis rather than century-old sentiments. C. Agriculture and the Strength of the Government’s Interest Even if Terrace were found to still be applicable by the Supreme Court, there are arguments that the law in Shen may still be unconstitutional on equal protection grounds. Ultimately, the bottom line of this analysis hinges on whether the state’s asserted interest is arbitrary or unreasonable, such that it cannot overcome even lower levels of judicial scrutiny.171 The Florida legislature, like many other states passing restrictive land ownership laws, has justified its classifications on national security and economic 167. Gabriel J. Chin, A Nation of White Immigrants: State and Federal Racial Preferences for White Noncitizens, 100 B.U. L. REV. 1271, 1285 (2020). 168. See Terrace v. Thompson, 263 U.S. 197, 220 (1923) (stating, “Eligible aliens are free white persons . . .”). 169. See id. 170. See Michael Mitsanas, DOJ Says Florida Law Signed by Ron DeSantis Limiting Chinese Land Ownership is Unconstitutional, NBC NEWS (June 29, 2023, 12:19 PM), [https://perma.cc/6Y2X-L6UJ]. 171. See generally Megan Boone, Perverse & Irrational, 16 HARV. L. & POL’Y REV. 394, 394, 403 (2022) (arguing that “demonstrated perversity could be a basis for invalidating laws,” even when they are only subject to lower levels of scrutiny). 7.FLOWER.MAN.FIN (1) (DO NOT DELETE) 7/7/2024 8:25 PM 432 ARKANSAS LAW REVIEW Vol. 77:2 grounds.172 Additionally, Florida, like many of its contemporaries, has credited their property law for protecting their food system by means of prohibiting foreign entities from buying up valuable agriculture land.173 The state’s Commissioner of Agriculture has commented on this purpose explicitly, stating, “Food security is national security . . . China and other hostile foreign nations control hundreds of thousands of acres of critical agricultural lands in the U.S., leaving our food supply . . . and[] our national security interests at risk.”174 An assessment of foreign land ownership on agriculture and food security is undoubtedly a high priority for state legislatures, meaning it will be of high importance for courts assessing restrictive property laws. As of 2023, twenty-four states had legislation that specifically forbade or limited foreign entities from acquiring an interest in their agricultural land.175 Accordingly, states are on track to begin enforcing these state laws, leaving foreign residents and entities, as well as the food system, to realize their impact. Indeed, in October 2023, Arkansas became the first state to order a Chinese state-owned entity, a subsidiary of Syngenta Seeds, to divest its ownership in the state’s agricultural land as prescribed by its foreign ownership law.176 Such actions beg a key equal protection question: Are the restrictive natures of these laws proportionate to the interest they purport to protect? Notably, while regulation of foreign ownership continues to grow, the actual amount of agricultural land held by foreign investors comprises only 1.8% of total U.S. land.177 Provided that an even smaller fraction of this land is held by entities associated 172. See Ron DeSantis, supra note 9. 173. See Commissioner Wilton Simpson Applauds Legislature for Passing SB 264 and Protecting Florida’s Food Supply from Hostile Foreign Nations, FLA. DEP’T OF AGRIC. & CONSUMER SERVS. (May 4, 2023), [https://perma.cc/T3SJ-424F]. 174. Id. 175. See Micah Brown & Nick Spellman, Statutes Regulating Ownership of Agricultural Land, NAT’L AGRIC. L. CTR., [https://perma.cc/7FGH-57A8] (last visited Apr. 6, 2024). 176. See Micah Brown, Spotlighting State Restrictions on Foreign Land Investments: Arkansas—Part Two, THE NAT’L AGRIC. L. CTR. (Nov. 14, 2023), [https://perma.cc/EYV3-Q3RE]. 177. Daniel Munch, Foreign Investment in U.S. Ag Land—The Latest Numbers, FARM BUREAU (Nov. 2, 2023), [https://perma.cc/FCB5-3TTV]. 7.FLOWER.MAN.FIN (1) (DO NOT DELETE) 7/7/2024 8:25 PM 2024 SOWING SEEDS OF RESTRICTION 433 with the most targeted countries—such as China—there is an argument that the legislation is disproportionate to the threat.178 The real impact of this ownership, however, requires a balancing test. The threats and benefits of foreign investment must be identified, and restrictive laws may not be arbitrary and unreasonable in their attempts at furthering state interest. Largely, opposition towards foreign investment can be attributed to the populist fear that foreigners are simply taking over the United States.179 This logically has contributed to the primary concern that accompanies foreign investment: a perceived risk of national security. This threat is based on the idea that foreign and United States’ interests do not always align, and that this uncertainty can pose a danger to the country.180 This is especially true for countries such as China, provided the political tensions that arise under the perception that their “strategic goals . . . are sometimes at odds with Washington’s.”181 And, provided China’s communist government system, many have expressed concern regarding the amount of government control and access to information that may stem from land ownership by both Chinese individuals and corporations.182 This concern is bolstered by the concentration of U.S. land ownership by Chinese entities. Over one-third of Chinese-owned land in the United States is owned by Smithfield Foods, one of the four major meatpackers in the United States.183 Additionally, the Swiss agribusiness company, Syngenta (owned by ChemChina) represents about 0.2% of Chinese-owned land in the 178. Edgar Chen, With New “Alien Land Laws” Asian Immigrants Are Once Again Targeted by Real Estate Bans, JUST SEC. (May 26, 2023), [https://perma.cc/5WT6-HDSK]. 179. See Mason, supra note 125, at 475. 180. Id. at 476. 181. Ximena Bustillo & Connie Hanzhang Jin, China Owns 380,000 Acres of Land in the U.S. Here’s Where, NPR (June 26, 2023, 5:01 AM), [https://perma.cc/5DXY-7SRY]. 182. Id. Upon ordering Syngenta to divest its agricultural land under Arkansas’ land ownership law, Arkansas Governor Sarah Huckabee Sanders opined that foreign land ownership “is a clear threat to our national security, and to our great farmers, especially since the Chinese government enacted a law in 2017 requiring Chinese citizens abroad to collaborate with their country’s security officials on intelligence work, with no questions asked.” Eduardo Jaramillo, China-Owned Companies Reckon With U.S. State, National Land Purchase Bans, THE CHINA PROJECT (Nov. 6, 2023), [https://perma.cc/2EYP-5MZW]. 183. Id. 7.FLOWER.MAN.FIN (1) (DO NOT DELETE) 7/7/2024 8:25 PM 434 ARKANSAS LAW REVIEW Vol. 77:2 United States.184 Chinese investment in such companies has raised concern that the country is outsourcing aspects of its agricultural industry to the United States to bear its pollution and environmental harm without receiving the benefit of the end product.185 Further, foreign ownership of such large corporations in an oligopoly industry has spurred concern that too much of our domestic food supply may be in the hands of foreign investors.186 However, returning to the statistics on actual foreign land ownership by countries of political concern, it is arguably doubtful that a serious threat to national security is posed.187 In addition to the political concerns that accompany foreign land ownership, there are several economic and policy benefits to permitting some degree of foreign land ownership. Primarily, the levels of economic investment that are gained through foreign land ownership arguably minimize the concerns that accompany it.188 While foreign agricultural production does cause the United States to bear an environmental burden, foreign-owned producers such as Smithfield are arguably no worse than other large farming operations in this regard.189 Thus, it is probable that anti-Chinese sentiment and political differences contribute to this fear more than the actual harm created.190 Further, scholars have opined that the United States may be risking the loss of economic opportunities and reciprocal agricultural trade with large foreign markets such as China.191 Specifically, foreign-owned agricultural companies such as Syngenta argue that their operations contribute valuable research that benefits American 184. Id. 185. Doug Bock Clark, Why is China Treating North Carolina Like the Developing World?, ROLLING STONE (Mar. 19, 2018), [https://perma.cc/8HEU-9LEA]. 186. Kenneth Rapoza, Is Foreign Ownership of U.S. Farmland & Agribusiness Becoming a Problem?, COAL. FOR A PROSPEROUS AM. (Oct. 2, 2023), [https://perma.cc/7GT7-9PJ5]. 187. James A. Frechter, Alien Landownership in the United States: A Matter of State Control, 14 BROOK. J. INT’L L. 147, 147 (1988). 188. See Lutz & Welsh, supra note 25. 189. Jennifer Mishler, Smithfield Foods Is Owned by China, but Pollution and Price-Fixing Is the Real Problem, SENTIENT MEDIA (July 31, 2023), [https://perma.cc/U7HC-BLQM]. 190. Id. 191. Jaramillo, supra note 182. 7.FLOWER.MAN.FIN (1) (DO NOT DELETE) 7/7/2024 8:25 PM 2024 SOWING SEEDS OF RESTRICTION 435 agriculture, and make it more competitive in the global marketplace.192 Additionally, there are concerns that restricting land ownership by foreign entities will fundamentally undermine the property rights of citizen landowners who may wish to pass on their farmland to immigrant workers.193 In this regard, land ownership laws not only limit those foreign entities who wish to own U.S. land, but also Americans who rightfully would like to assert their property rights as they so choose. Collectively, the small amount of agricultural land that is owned by the identified countries of concern, combined with the economic benefits that derive from foreign investment, indicate that any perceived threat may be based in anti-Chinese sentiment rather than genuine harm. Thus, plaintiffs seeking to challenge similar laws on equal protection grounds have footing to argue that such classifications are arbitrary, or at the very least, not narrowly tailored to accomplish their intended purpose where strict judicial scrutiny should apply. IV. CONCLUSION The creation of state legislation to limit agricultural land ownership by foreign entities is a familiar concept in recent American history. However, considering vast moral, social, and legal advancements over the last century, this is undoubtedly an area of the law that the Supreme Court would be wise to revisit soon. States have long tried to protect national security through facially discriminatory laws. But, considering the racially charged and damaging political sentiments that accompanied this legislation, some of these legal decisions are now “among some of the most shameful moments in our shared American history.”194 On these grounds, the previously relied upon precedent in permitting these laws to pass equal protection analysis is no longer sufficient in resolving the issue. Rather, courts are positioned to conduct the correct equal protection 192. Id. 193. Munch, supra note 177. 194. Jamal Abdi & John C. Yang, Americans Must Unite to Reject 21st Century ‘Alien Land Laws’, THE HILL (Aug. 3, 2023, 4:00 PM), [https://perma.cc/LZ4Z-T7GX]. 7.FLOWER.MAN.FIN (1) (DO NOT DELETE) 7/7/2024 8:25 PM 436 ARKANSAS LAW REVIEW Vol. 77:2 analysis under strict scrutiny to determine if the policy considerations of agriculture are well served by the restrictive natures of these laws. The United States’ agricultural industry, due to its economic importance and support as a special political interest, will continue to be pertinent in the foreign land ownership conversation moving forward. However, for the benefit of the advancement and competitiveness of this industry, as well as the sanctity of equal protection values, this interest should not be asserted to justify overtly discriminatory legislation. Rather, states would be well served to recognize the true economic and property impacts of permitting foreign investment in reasonable amounts. Even more importantly, courts hearing these issues are at a critical point of choice: give power to a century-old, harmful ideology, or correctly reorient states on the modern lay of the law. The traditional ideologies of “the land of opportunity” and the “American dream” can not only persist in tandem with foreign land ownership—but stand to benefit from it. 8.RECENT DEV (JUNE24).MAN.FIN (DO NOT DELETE) 7/7/2024 8:27 PM RECENT DEVELOPMENTS ESTATE OF WELCH V. GIPSON1 In September 2021, Aaron Welch died intestate, leaving behind a widow, Kristin Welch, and two minor children from his previous marriage. Kristin Welch, appointed as the administratrix of Aaron Welch’s estate, filed an application for reservation of homestead and dower with the Pope County Circuit Court, claiming a homestead interest in the mortgaged home she had lived in with her late husband. However, Katelyn Gipson, the natural guardian of the minor children, argued that Kristin Welch did not have such an interest based on Ark. Code Ann. § 28-39-201. This statute requires a surviving spouse to have been continuously married to the deceased for more than a year to have a homestead interest.2 Kristin Welch challenged the constitutionality of this statute, but the circuit court found it constitutional and ruled that she did not have a homestead interest in the property. On appeal, the Supreme Court of Arkansas affirmed the lower court’s decision. The court noted that the Arkansas Constitution’s provision on homestead rights was gender-based and had been previously declared unconstitutional for violating the Fourteenth Amendment’s Equal Protection Clause. Consequently, the statutory provision, Ark. Code Ann. § 28-39-201(d), which is gender-neutral and requires the continuous marriage condition, stands as the controlling law.3 The specific language of the statute is: “[a]ny rights and benefits given by this section shall not vest until the parties have been continuously married to each other for a period in excess of one (1) year.”4 The court found no error in the circuit court’s application of this statute and concluded that Kristin Welch, having been married to 1. Estate of Welch v. Gipson, 2023 Ark. 191, 2023 WL 8634067. 2. ARK. CODE ANN. § 28-39-201(d). 3. ARK. CODE ANN. § 28-39-201. 4. ARK. CODE ANN. § 28-39-201(d). 8.RECENT DEV (JUNE24).MAN.FIN (DO NOT DELETE) 7/7/2024 8:27 PM 438 ARKANSAS LAW REVIEW 77:2 the decedent for less than a year, did not have a statutory homestead interest in the property. ARK. DEP’T OF EDUC. V. JACKSON5 In Arkansas Department of Education v. Jackson, the Supreme Court of Arkansas reversed the order of the Pulaski County Circuit Court granting a temporary restraining order in favor of Plaintiffs in their lawsuit challenging the validity of the emergency clause in Act 237 of 2023 (the “LEARNS Act”), holding that the circuit court erred in granting Plaintiffs’ motion for injunctive relief. After the LEARNS Act was signed into law, Plaintiffs sought a temporary restraining order asserting that they would suffer irreparable harm if Defendants continued to implement the LEARNS Act despite an invalid emergency clause relating to the creation of transformation contracts. The circuit court granted the temporary restraining order until a scheduled hearing. Then, the Supreme Court of Arkansas reversed and vacated the temporary restraining order, holding that Plaintiffs failed to meet their burden of providing irreparable harm. JENKINS V. PAYNE6 The Supreme Court of Arkansas heard an appeal from Michael Jenkins, who was challenging the denial of his pro se petition for a writ of “mandamus/prohibition” by the Jefferson County Circuit Court. Jenkins had previously been convicted of first-degree sexual assault in 2018 and sentenced to 180 months imprisonment. Jenkins then claimed that the Arkansas Department of Corrections (“ADC”) and its record keeper had incorrectly deemed him ineligible for parole because of an improper application of Ark. Code Ann. §16-93-609(b). This section of the code reads: (b)(1) Any person who commits a violent felony offense or any felony sex offense subsequent to August 13, 2001, but before January 1, 2025, and who has previously been found 5. Ark. Dep’t of Educ. v. Jackson, 2023 Ark. 105, 669 S.W.3d, 1. 6. Jenkins v. Payne, 2023 Ark. 184, 687 S.W.3d, 770. 8.RECENT DEV (JUNE24).MAN.FIN (DO NOT DELETE) 7/7/2024 8:27 PM 2024 RECENT DEVELOPMENTS 439 guilty of or pleaded guilty or nolo contendere to any violent felony offense or any felony sex offense shall not be eligible for release on parole by the board.7 The crux of Jenkins’ argument is the date of his conviction being prior to August 13, 2001, as stated in the code. He argues that his was an ex post facto violation as it was based on his 1981 convictions for armed robbery and home invasion in Illinois, which occurred before the enactment of the statute. The Supreme Court of Arkansas held that there was no ex post facto violation in the ADC’s application of the statute to Jenkins’ parole eligibility. The court pointed out that the statute was enacted in 2001 and eliminates parole eligibility for persons who committed a felony sex offense after August 13, 2001, and had been previously convicted of a violent felony offense or any felony sex offense. Jenkins’ previous violent offenses committed in Illinois before the code provision’s enactment and Jenkins’ conviction of a sexual assault committed in 2016 were valid grounds for the application of Ark. Code Ann. §16-93-609(b). Therefore, the court affirmed the lower court’s denial of Jenkins’ petition for a writ and also denied his motion for appointment of counsel. ROBINSON NURSING & REHAB. CENTER, LLC V. PHILLIPS8 This is the fifth appeal before the Supreme Court of Arkansas regarding a class action lawsuit stemming from two circuit court orders denying Appellant’s motion to enforce arbitration agreements and its motion to compel class members with arbitration agreements to submit their claims to binding arbitration, holding that remand was necessary. This series of cases regards a nursing home’s ability to enforce its arbitration agreements. 7. Ark. Code Ann. § 16-93-609(b)(1). 8. Robinson Nursing & Rehab. Center, LLC v. Phillips, 2023 Ark. 175, 678 S.W.3d, 27. 8.RECENT DEV (JUNE24).MAN.FIN (DO NOT DELETE) 7/7/2024 8:27 PM 440 ARKANSAS LAW REVIEW 77:2 After the Arkansas Supreme Court’s ruling in Phillips II 9, Appellant filed a motion to enforce arbitration, which would have compelled arbitration against 197 residents with arbitration agreements. After the ruling in Phillips III 10, Appellant then moved to enforce arbitration agreements and to compel a lesser thirty-three residents to their arbitration agreements. The court then entered an order regarding both motions, from which Appellant appealed. Then, the Arkansas Supreme Court remanded the case, stating that the circuit court failed to provide the Arkansas Supreme Court with specific findings with respect to each arbitration agreement and individual resident and that such findings were necessary for the court to conduct a proper appellate review. BETHANY A. MICHAU 9. See Robinson Nursing & Rehab. Center, LLC v. Phillips, 2019 Ark. 305, 586 S.W.3d, 624. 10. See Robinson Nursing & Rehab. Center, LLC v. Phillips, 2022 Ark. 109, 2022 WL1576781. |
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