S. 4038 — Introduced in Senate

II 118th CONGRESS 2d Session S. 4038 IN THE SENATE OF THE UNITED STATES March 21, 2024Mr. Luján introduced the following bill; which was read twice and referred to the Committee on Health, Education, Labor, and Pensions A BILL To amend the Fair Labor Standards Act of 1938 to strengthen the provisions relating to child labor, and for other purposes. 1. Short title This Act may be cited as the Children’s Act for Responsible Employment and Farm Safety of 2024 or the CARE Act of 2024. 2. Table of contents The table of contents for this Act is as follows: Sec. 1. Short title.Sec. 2. Table of contents.Sec. 3. Findings.TITLE I—Amendments to the Fair Labor Standards Act of 1938Sec. 101. Application of child labor laws to independent contractors.Sec. 102. Revised age requirement for child agricultural employment and exemptions for hazardous and non-hazardous work.Sec. 103. Repeal of waiver provision for hand harvest laborers.Sec. 104. Pesticide-related worker protection standard.TITLE II—Penalties and enforcementSec. 201. Increased civil penalties for child labor violations.Sec. 202. Special criminal penalties for certain aggravated child labor violations.TITLE III—Reports and memorandum of understandingSec. 301. Report to Congress on child labor and work-related injuries to children and related matters.Sec. 302. Employer reporting requirements.Sec. 303. Memorandum of understanding.TITLE IV—Effective datesSec. 401. Effective date for application of child labor laws to independent contractors.Sec. 402. Application of other fair labor standards amendments.Sec. 403. Application of Occupational Safety and Health Act amendments. 3. Findings Congress finds the following: (1) Across the United States, there are hundreds of thousands of children who are working in the agricultural industry and performing the grueling work that is required to plant, pick, process, and pack the food that people eat every day. (2) Congress included exemptions to the Fair Labor Standards Act of 1938 (29 U.S.C. 201 et seq.) child labor provisions that create separate minimum age thresholds and hazardous occupations rules for children employed in agriculture. Such Act does not limit the number of hours per day or week that children can work in agriculture, nor does it place limits on when that work occurs outside of school hours (i.e., children may work in agriculture for any number of hours per day or week, and at any time during the day or night). (3) Historically, children have been permitted to work in agriculture at younger ages, for longer hours, and under more hazardous conditions than other working children. Like most other agricultural workers, children remain excluded from basic protections provided to workers in other industries under Federal employment laws. Even where protections exist under Federal law, Federal agencies lack sufficient resources to conduct investigations and hold employers accountable for violations. (4) Allowing children to engage in agricultural work from a young age can result in long-term negative consequences, especially when the child worker is not employed on a family farm where family members take precautions for their children and family members. Working in agriculture as a child can result in an early end to childhood, and long hours worked at unfair and unlawful wages can pose risks to their overall health, education, and lives. (5) Child farmworkers suffer work-related fatalities at more than 4 times the rate of other young workers and, according to a 2018 report by the Government Accountability Office, more than half of all work-related child fatalities are in the agriculture industry, often because exceptions are made that allow farmworker children to operate heavy, dangerous equipment and to be exposed to other hazards. Yet, great efforts have been taken to strictly limit the possibility of children in other industries from engaging in dangerous work activities or jobs. The demands imposed by doing agricultural work, coupled with the low pay and poor working conditions, result in shocking drop-out rates from school for child farmworkers. Aside from these risks, farmworker children are exceptionally vulnerable to sexual abuse and harassment by supervisors, company owners, crew leaders, co-workers, and others. I Amendments to the Fair Labor Standards Act of 1938 101. Application of child labor laws to independent contractors The Fair Labor Standards Act of 1938 (29 U.S.C. 201 et seq.) is amended— (1) in section 3 (29 U.S.C. 203)— (A) in subsection (d)— (i) by striking Employer includes and inserting (1) Employer includes; (ii) by inserting (or, for purposes of any child labor provision of this Act, including paragraph (2), subsection (aa), section 12, and any provision of this Act administering or enforcing such a child labor provision, a worker) after employee; and (iii) by adding at the end the following: (2) Notwithstanding any other provision in this section, for purposes of any child labor provision of this Act, including subsections (l) and (aa), section 12, and any provision of this Act administering or enforcing such a child labor provision, the term employer includes any person engaging an individual (including an independent contractor) for the performance of work. ; (B) in subsection (j)— (i) by inserting (or, for purposes of any child labor provision of this Act, including section 12 and any provision of this Act administering or enforcing such a child labor provision, worker) after employee each place it appears; and (ii) by inserting (or, for purposes of any child labor provision of this Act, including section 12 and any provision of this Act administering or enforcing such a child labor provision, engaged for work) after was employed; (C) in subsection (l)— (i) by striking employment under and inserting work under; (ii) by striking employee each place it appears and inserting worker; (iii) by striking is employed by each place it appears and inserting performs work for; (iv) by striking employing and inserting engaging for work; (v) by striking employment of each place it appears and inserting engagement for work of; (vi) by striking employment in and inserting engagement for work in; (vii) by striking employees and inserting workers; and (viii) by striking such employment and inserting such work; (D) in subsection (s), by inserting (or, for purposes of any child labor provision of this Act, including section 12 and any provision of this Act administering or enforcing such a child labor provision, workers) after employees each place it appears; and (E) by adding at the end the following: (z) Work, for purposes of any child labor provision of this Act, including subsections (d)(2), (l), and (aa), section 12, and any provision of this Act administering or enforcing such a child labor provision, means the performance of services for remuneration, including employment. (aa) Worker, for purposes of any child labor provision of this Act, including subsection (l), section 12, and any provision of this Act administering or enforcing such a child labor provision, means any individual (including an independent contractor or an employee) engaged for work by an employer. ; (2) in section 11 (29 U.S.C. 211)— (A) in subsection (a)— (i) by inserting (or, for purposes of any child labor provision of this Act, including section 12 and any provision of this Act administering or enforcing such a child labor provision, work) after employment; and (ii) by inserting (or, for purposes of any child labor provision of this Act, including section 12 and any provision of this Act administering or enforcing such a child labor provision, workers) after such employees; and (B) in subsection (c)— (i) by inserting or, for purposes of any child labor provision of this Act, including section 12 and any provision of this Act administering or enforcing such a child labor provision, the persons working for the employer after employed by him; and (ii) by inserting (or, for purposes of any such child labor provision of this Act, work) after employment; (3) in section 12 (29 U.S.C. 212)— (A) in subsection (b), by striking employment of and inserting engagement for work of; and (B) in subsection (d), by striking employee and inserting worker; (4) in section 13 (29 U.S.C. 213)— (A) in subsection (c)— (i) in paragraph (3), by striking employed and inserting engaged for work; (ii) in paragraph (5)— (I) by striking employee each place it appears and inserting worker; (II) by striking employees each place it appears and inserting workers; and (III) in subparagraph (C)— (aa) in clause (i), by striking employee's each place it appears and inserting worker's; and (bb) in clause (iii)(I), by striking employment and inserting work; (iii) in paragraph (6)— (I) in the matter preceding subparagraph (A)— (aa) by striking employees who are under and inserting workers who are under; and (bb) by striking Employee who are 17 and inserting Workers who are 17; (II) by striking employee each place it appears and inserting worker; (III) by striking employee's each place it appears and inserting worker's; (IV) by striking of employment each place it appears and inserting of work; (V) in subparagraph (F), by striking employees of each place it appears and inserting workers of; and (VI) in subparagraph (G), by striking employment and inserting engagement for work; and (iv) in paragraph (7)— (I) in subparagraph (A)(i), by striking employed and inserting engaged for work; and (II) in subparagraph (B), in the matter preceding clause (i), by striking employment and inserting engagement for work; (B) in subsection (d), by inserting (or, for purposes of section 12, worker) after any employee; and (C) in subsection (f), by inserting (or, for purposes of section 11 (with respect to any child labor provision of this Act) and 12, worker) after any employee; and (5) in section 18C (29 U.S.C. 218c)— (A) by inserting (or, for purposes of any child labor provision of this Act, including section 12 and any provision of this Act administering or enforcing such a child labor provision, worker) after employee each place it appears; and (B) by inserting (or, for purposes of any child labor provision of this Act, including section 12 and any provision of this Act administering or enforcing such a child labor provision, of work) after employment each place it appears. 102. Revised age requirement for child agricultural employment and exemptions for hazardous and non-hazardous work (a) Revised age requirement for child agricultural employment and exemptions for non-Hazardous work Section 13(c) of the Fair Labor Standards Act of 1938 (29 U.S.C. 213(c)) is amended by striking paragraph (1) and inserting the following: “(1) Except as provided in paragraph (2), the provisions of section 12 relating to child labor shall not apply to any worker— (A) who is younger than 16 years of age and engaged for work, outside of the school hours for the school district where such worker is living while so engaged, in agriculture by his or her parent, grandparent, aunt, uncle, first cousin, or legal guardian, on a farm that is owned or operated by such parent, grandparent, aunt, uncle, first cousin, or legal guardian, while such worker is so engaged; (B) who— (i) is 16 or 17 years of age; and (ii) is engaged for work in agriculture; or (C) who— (i) is 14 or 15 years of age; and (ii) is engaged for work in agriculture— (I) in an occupation that the Secretary finds and declares appropriate for the engagement for work of a child who is 14 or 15 years of age and does not interfere with the schooling, health, and well-being of such a child; and (II) for periods, and under conditions, that the Secretary finds and declares appropriate for the engagement for work of a child who is 14 or 15 years of age in non-agricultural work and does not interfere with the schooling, health, and well-being of such a child. . (b) Exemptions for hazardous work Section 13(c) of such Act (29 U.S.C. 213(c)) is further amended by striking paragraph (2) and inserting the following: (2) The provisions of section 12 relating to child labor shall apply to any worker younger than 18 years of age engaged for work in agriculture in an occupation the Secretary finds and declares to be particularly hazardous for the engagement for work of a child younger than 18 years of age or detrimental to the health or well-being of such a child, except— (A) with respect to engagement for work, outside of the school hours for the school district where such worker is living while so engaged, in agriculture by his or her parent, grandparent, aunt, uncle, first cousin, or legal guardian, on a farm that is owned or operated by such parent, grandparent, aunt, uncle, first cousin, or legal guardian; or (B) with respect to engagement for work in agriculture of a worker who— (i) is a student learner exempted under section 570.72(a) of title 29, Code of Federal Regulations (or any successor regulations); (ii) is exempted under section 570.72(b) of title 29, Code of Federal Regulations (or any successor regulations), because the worker has completed a training program of the cooperative extension service of a land-grant college or university; or (iii) is exempted under section 570.72(c) of title 29, Code of Federal Regulations (or any successor regulations), because the worker is engaged in a vocational agricultural training program. . 103. Repeal of waiver provision for hand harvest laborers Section 13(c) of the Fair Labor Standards Act of 1938 (29 U.S.C. 213(c)) is amended by repealing paragraph (4). 104. Pesticide-related worker protection standard (a) Congressional finding Congress finds and declares that the engagement for work of children younger than the age of 18 in the occupation of a pesticide handler is particularly hazardous for, and detrimental to the health and well-being of, such children. (b) Requirement for Secretary of Labor Not later than the date that is 1 year after the date of enactment of this Act, the Secretary of Labor shall revise part 570 of title 29, Code of Federal Regulations (as in effect on the date of enactment of this Act), to prohibit the engagement for work of a child under the age of 18 as a pesticide handler. (c) Definition of pesticide handler (1) In general For purposes of this section, the term pesticide handler means, except as provided in subparagraph (B), an individual who— (A) is a child worker performing work at an agricultural establishment or commercial pesticide handling establishment; and (B) is— (i) mixing, loading, transferring, or applying pesticides; (ii) disposing of pesticides or pesticide containers; (iii) handling opened containers of pesticides; (iv) acting as a flagger; (v) cleaning, adjusting, handling, or repairing the parts of mixing, loading, or application equipment that may contain pesticide residues; (vi) assisting with the application of pesticides; (vii) entering a greenhouse or other enclosed area— (I) after the application of a pesticide and before— (aa) the inhalation exposure level listed in the labeling has been reached; or (bb) one of the ventilation criteria described in paragraph (3), or in the labeling of the pesticide, has been met; and (II) to— (aa) operate ventilation equipment; (bb) adjust or remove coverings used in fumigation; or (cc) monitor air levels; (viii) entering a treated area outdoors after application of any soil fumigant to adjust or remove soil coverings such as tarpaulins; (ix) performing tasks as a crop advisor— (I) during any pesticide application; (II) before— (aa) the inhalation exposure level listed in the labeling has been reached; or (bb) one of the ventilation criteria described in paragraph (3), or in the labeling of the pesticide, has been met; or (III) during any restricted-entry interval; or (x) performing any task or duty— (I) described in the definition of the term handler in section 170.3 of title 40, Code of Federal Regulations (or any successor regulations); and (II) not otherwise described in clauses (i) through (ix). (2) Exception The term pesticide handler described under paragraph (1) does not include any individual who is only handling pesticide containers that have been emptied or cleaned according to pesticide product labeling instructions or, in the absence of such instructions, have been subjected to triple-rinsing or its equivalent. (3) Ventilation criteria The ventilation criteria described in this paragraph are the following: (A) Fumigant In the case of a pesticide applied as a fumigant, an individual may not be in the entire greenhouse (and any adjacent structure that cannot be sealed off from the treated area)— (i) until the air concentration is measured to be equal to or less than the inhalation exposure level the labeling of the pesticide requires to be achieved; or (ii) in the case of a pesticide with no inhalation exposure level listed on the labeling, until after— (I) ten air exchanges are completed; (II) two hours of ventilation using fans or other mechanical ventilating systems; (III) four hours of ventilation using vents, windows or other passive ventilation; (IV) eleven hours with no ventilation followed by 1 hour of mechanical ventilation; (V) eleven hours with no ventilation followed by 2 hours of passive ventilation; or (VI) twenty-four hours with no ventilation. (B) Smoke, mist, fog, or aerosol In the case of a pesticide applied as a smoke, mist, fog, or aerosol, an individual may not be in the entire enclosed area until the requirements in clause (i) or (ii) of subparagraph (A) are met. (C) Respiratory protection device required for application by the product labeling In the case of a pesticide not otherwise covered by subparagraph (A) or (B) and for which a respiratory protection device is required by the product labeling for application, an individual may not be in the treated area until the requirements in clause (i) or (ii) of subparagraph (A) are met. (D) Applied from 12-inches above, as a fine spray, or using pressure greater than 40 psi In the case of a pesticide that is not otherwise covered by subparagraph (A), (B), or (C) and is applied from a height of not less than 12 inches from the planting medium, as a fine spray, or using spray pressure greater than 40 pounds per square inch, an individual may not be in the treated area (or any area that is 25 feet or less from the enclosed area) until the application of the pesticide is complete and all required re-entry intervals have been maintained. (E) Other In the case of a pesticide that is not otherwise covered by subparagraph (A), (B), (C), or (D), an individual may not be in the treated area until the application of the pesticide is complete and all required re-entry intervals have been maintained. (4) Definitions For purposes of paragraph (1): (A) Agricultural establishment The term agricultural establishment means an establishment— (i) that is an establishment described in the definition of the term agricultural establishment in section 170.3 of title 40, Code of Federal Regulations (or any successor regulations); and (ii) to which subpart C of part 170 of title 40, Code of Federal Regulations (or any successor regulations) applies. (B) Child worker The term child worker has the meaning given the term worker in section 3 of the Fair Labor Standards Act of 1938 (29 U.S.C. 203). (C) Pesticide The term pesticide has the meaning given that term in section 2 of the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. 136). (D) Other terms The terms commercial pesticide handling establishment, crop advisor, farm, forest, fumigant, greenhouse, nursery, restricted-entry interval, and treated area have the meanings given such terms in section 170.3 of title 40, Code of Federal Regulations (or any successor regulations). II Penalties and enforcement 201. Increased civil penalties for child labor violations (a) In general Section 16(e)(1) of the Fair Labor Standards Act of 1938 (29 U.S.C. 216(e)(1)) is amended— (1) in subparagraph (A)— (A) in the matter preceding clause (i), by striking not to exceed and inserting of an amount (subject to subparagraph (D)) that is; and (B) by striking clauses (i) and (ii) and inserting the following: (i) not less than $1,000 and not more than $156,290 for each worker who was the subject of such a violation, which penalty may be doubled in the case of a violation described in subparagraph (C); or (ii) not less than $1,000 and not more than $710,310 with regard to each violation of section 12 or 13(c), relating to child labor, or any regulation issued pursuant to such a section, that causes the death or serious injury of any worker younger than the age of 18 years, which penalty may be doubled in the case of a violation described in subparagraph (C). ; and (2) by adding at the end the following: (C) For purposes of penalties that may be doubled under clause (i) or (ii) of subparagraph (A), a violation described in this subparagraph is a violation— (i) that is a repeated or willful violation; (ii) that has occurred within 10 years of the final disposition of another violation of section 12 or 13(c), relating to child labor, or any regulation issued pursuant to such a section; or (iii) for which the employer that committed the violation is found, during the period in which the person was investigated for such violation, to have engaged for work more than 10 children in such a violation. . (b) Adjustment of amounts for inflation Section 16(e)(1) of the Fair Labor Standards Act of 1938 (29 U.S.C. 216(e)(1)), as amended by subsection (a), is further amended by adding at the end the following: (D) The dollar amounts referred to in clauses (i) and (ii) of subparagraph (A) shall be increased annually, for fiscal year 2025 and every fiscal year thereafter, by the percent increase, if any, in the consumer price index for all urban consumers (all items; United States city average) for the most recent 12-month period for which applicable data is available. . 202. Special criminal penalties for certain aggravated child labor violations Section 16(a) of the Fair Labor Standards Act of 1938 (29 U.S.C. 216(a)) is amended— (1) by striking Any and inserting (1) Any; (2) by inserting (other than subsection (a)(4) of such section) after section 15; (3) by striking subsection each place it appears and inserting paragraph; and (4) by adding at the end the following: (2) (A) Any person who violates section 15(a)(4) shall upon conviction thereof be subject to a fine of (subject to subparagraph (B)) not more than $750,000, or to imprisonment for not more than 5 years, or both. (B) The dollar amounts referred to in subparagraph (A) shall be increased annually, for fiscal year 2025 and every fiscal year thereafter, by the percent increase, if any, in the consumer price index for all urban consumers (all items; United States city average) for the most recent 12-month period for which applicable data is available. . III Reports and memorandum of understanding 301. Report to Congress on child labor and work-related injuries to children and related matters The Fair Labor Standards Act of 1938 is amended by inserting after section 12 (29 U.S.C. 212) the following new section: 12A. Data on child labor and work-related injuries to children and related matters (a) Data analysis Using the sources specified in subsection (b), the Secretary shall analyze data concerning— (1) the number of children younger than 18 years of age who are engaged for work in agriculture and non-agricultural sectors; and (2) any work-related serious injury (as such term is defined in section 16(e)(1)(B) or death of any such child. (b) Sources specified The sources referred to in subsection (a) are the following: (1) Sources within the Department of Labor, including the Wage and Hour Division, the Bureau of Labor Statistics, and the Occupational Safety and Health Administration. (2) State employment security agencies and other relevant State agencies. (3) The National Institute for Occupational Safety and Health. (c) Report (1) In general Not later than 1 year after the date of enactment of the CARE Act of 2024, and annually thereafter, the Secretary shall submit a report to Congress which shall include— (A) a summary of the data collected by the Secretary under— (i) this section; and (ii) section 8(c)(2) of the Occupation Safety and Health Act of 1970 (29 U.S.C. 657(c)(2)) with respect to the death, serious injury or illness of a child younger than 18 years of age; (B) an evaluation, based on such data, that reflects the status of child labor in agricultural and non-agricultural sectors and related industry safety and health hazards; and (C) any information, based on such data, that leads the Secretary to believe that children younger than 18 years of age may have been engaged for work in violation of section 12. (2) Publication The Secretary shall, on the date that the Secretary submits each report under paragraph (1) to Congress, publish each such report in the Federal Register and on the website of the Department of Labor. . 302. Employer reporting requirements Section 8(c)(2) of the Occupation Safety and Health Act of 1970 (29 U.S.C. 657(c)(2)) is amended by inserting , including the age of the individual involved before the period at the end. 303. Memorandum of understanding Not later than 90 days after the date of enactment of this Act, the Assistant Secretary of Labor for Occupational Safety and Health and the Administrator of the Wage and Hour Division of the Department of Labor shall enter into a memorandum of understanding— (1) to coordinate information sharing and facilitate enforcement activities between the Occupational Safety and Health Administration and the Wage and Hour Division, including with respect to— (A) records and reports provided to the Secretary of Labor pursuant to section 8(c) of the Occupational Health and Safety Act of 1970 (29 U.S.C. 657(c)) or in accordance with a State plan that has been approved by the Secretary under section 18 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 667); and (B) any other information available to the Assistant Secretary of Labor for Occupational Safety and Health regarding any injury, illness, or fatality involving a worker who is a child younger than 18 years of age; (2) that provides that the Assistant Secretary of Labor for Occupational Safety and Health shall encourage each State agency that administers such a State plan in a State to participate in information sharing activities under the memorandum of understanding; and (3) that is based on the agreement entitled Memorandum of Understanding Between the U.S. Department of Labor, Occupational Safety and Health Administration and the U.S. Department of Labor, Wage and Hour Division and made effective on May 4, 2023. IV Effective dates 401. Effective date for application of child labor laws to independent contractors The amendments made by section 101 shall take effect on the date that is 1 year after the date of enactment of this Act. 402. Application of other fair labor standards amendments (a) Rulemaking Not later than the date that is 12 months after the date of enactment of this Act, the Secretary of Labor shall prescribe rules as necessary to implement the amendments made by sections 102 and 103 and by title II and the revision required by section 104(b). Any such rules issued shall take effect not later than 30 days after the date on which the rules are published in the Federal Register. (b) Violations The amendments made by sections 102 and 103 and by title II and the revision required by section 104(b) shall apply to violations of the Fair Labor Standards Act of 1938 (29 U.S.C. 201 et seq.) that occur after the date on which the rules issued under subsection (a) take effect. (c) Rule of construction Nothing in the amendments made by sections 102 and 103 and by title II and the revision required by section 104(b) shall be construed to preempt any State law that provides protections or remedies for employees that are greater than the protections or remedies provided under such amendments or such revision. 403. Application of Occupational Safety and Health Act amendments (a) Rulemaking Not later than the date that is 12 months after the date of enactment of this Act, the Secretary of Labor shall prescribe rules as necessary to implement the amendment made by section 302. Any such rules issued shall take effect not later than 30 days after the date on which the rules are published in the Federal Register. (b) Violations The amendment made by section 302 shall apply to work-related deaths, injuries, and illnesses that occur after the date on which the rules issued under paragraph (1) take effect.