Professors Kate Andrias and Elora Mukherjee on the Crisis in Child Labor

Thousands of migrant children illegally working long hours in dangerous jobs have spurred the U.S. Department of Labor to order a crackdown on child labor law violations resulting from the surge in unaccompanied minors entering the United States. At the same time, at least 10 states have introduced or passed laws rolling back child labor protections. New legislation includes an Iowa law that allows 16-year-olds to serve alcohol, an Arkansas law that ends the requirement for age verification and a state-issued work permit for 14- and 15-year-olds, and a New Jersey law allowing 16-year-olds to work 50 hours a week in the summer.  

Labor law expert Kate Andrias, Patricia D. and R. Paul Yetter Professor of Law, and Immigrants’ Rights Clinic Director Elora Mukherjee, Jerome L. Greene Clinical Professor of Law, discuss how the seemingly disparate issues of child labor and migration overlap, and the implications for children, workers, and democracy. 

Wasn’t exploitative child labor legislated away a century ago?  

Kate Andrias: Child labor was a focus in the early part of the 20th century. Labor problems broadly were at the center of political debate: really low wages, rampant inequality, sweatshop conditions. But one of the major problems was children working in very, very dangerous conditions. Congress repeatedly tried to solve the problem through enacting various child labor laws, but the Supreme Court kept striking them down as unconstitutional. However, during the New Deal, the court switched its position on the ability of Congress to regulate labor. In 1938, Congress passed a set of labor laws that, among other things, put significant restrictions on the ability of children to work in order to avoid exploitative conditions for children. And for a period of time, I think child labor was less of a problem. 

We’re now seeing recurring patterns in the economy that existed earlier in our history. The data suggests that there has been a resurgence in child labor in recent years. In 2022, the Department of Labor (DOL) documented an increase of 37% over 2021 in the number of minors employed illegally. That was an increase of 283% from 2015. It’s possible the DOL is catching more violations. But most people think it’s actually an increasing problem.

Why are unaccompanied migrant children ending up in exploitative, illegal jobs?  

Elora Mukherjee: During the Trump administration, immigrant children were being held in federal custody for weeks, months, sometimes more than a year. Procedural requirements had been put in place by the Trump administration that made it harder for the Office of Refugee Resettlement to release children to appropriately vetted sponsors.

When the Biden administration came to office, there was tremendous pressure to ensure that children were promptly released from federal immigration custody. As a result of this effort to speed up their release, there has not been, in many instances, appropriate vetting of the sponsors to whom children are released to ensure that the sponsors actually have the best interests of the children in mind. 

Trafficking is not too strong a word. Some of the individuals receiving these children from federal immigration custody are traffickers. They are engaged in human smuggling and the exploitation of children. And they are sometimes working with the “coyotes,” the smugglers who brought the children to the United States.

Some of the fault certainly lies with the federal government. The fault also lies with the push-and-pull factors that lead children to migrate to the United States. Many of the countries where child migrants are coming from are effectively failed states. The governments cannot provide basic security to children and to large swaths of the population. And the children who are being sent north to the United States feel a tremendous responsibility to try to put food on the table for their parents or siblings. Often, unfortunately, they need to pay back smugglers as well. So the children are facing enormous pressures. They need money.

Our country has become increasingly polarized over immigration, and there has been rising xenophobia, racism, and a view that certain people, especially undocumented immigrants, are disposable. Their lives, their dignity, their value, their childhood—it doesn't matter. And there will be no one to hold the big corporations accountable if they’re hiring children, especially undocumented children. 

Andrias: Child labor laws have always allowed children to do some work. If you’re 14, if you’re 16, you can babysit, you can work in a retail job a few hours on the weekends. The idea behind child labor laws is to make sure that the kind of work that children engage in is a supplement to their education. What we have going on right now is much more than that. It’s children working as roofers. It’s children working on farms. It’s children working in dangerous factories with toxic chemicals. It’s children working very long hours. It’s a particular problem for migrant children and undocumented children, but it’s not limited to those children. 

There are rampant violations of the law. Those exist in part because of the underlying conditions Elora was describing. But they also exist because the Department of Labor is woefully underfunded and doesn’t have the resources to enforce the law. 

So why are some states considering relaxing child labor laws? Is it related to the perceived labor shortage? 

Andrias: There are efforts in a number of states to roll back limitations on how much children can work. So, for example, a bill introduced in Iowa would allow 14-year-olds to work in meatpacking plants and would indemnify the plants against civil liability for many injuries that occur. It’s an effort to enable big corporations to hire children and to have them work in dangerous conditions and not be subject to liability. A lot of the other bills expand the number of hours that children can work, the kinds of work they can do, and also how young children can be when they start working.  

Observers often point to the tight labor market. But we have had other tight labor markets without the same effort to permit child labor and without widespread problems of rampant illegal child labor and exploitation. A bigger factor is that working people have very little political power right now. Big corporations have a lot of influence in state legislatures and also in Congress. If you poll people about an increase in the minimum wage or forming unions or stronger protections for labor, people say yes, they want all of those things. And yet that doesn't translate into legislation or effective enforcement because big corporations have an outsized influence in politics. There’s a concerted effort on the part of businesses to change the laws to make it easier to exploit labor. And there isn’t a lot of ability among workers to prevent that.

What’s really driving this is a desire of corporations to pay less for labor. If pay were higher and conditions were better, there would likely be enough adults willing and available to do the work. The problem is that companies would like to make more profits, pay workers less, and they are able to do that if they exploit migrant children or other children who don't have alternatives.

After news coverage of child labor law violations among undocumented children, the Biden administration has promised to improve enforcement. What’s your expectation that the situation will improve?  

Mukherjee: The reform that is most likely to actually be implemented is increased vetting of the sponsor before a child is released from federal immigration custody. We have all by now heard the horror stories of a single sponsor who has taken custody of multiple children to whom the sponsor has no familial connection. I think we’re going to see a genuine effort by the Biden administration to increase the vetting before children are released. Now, on the flip side, what I hope we don’t see is a return to the Trump era, where children were kept in federal immigration custody for prolonged periods of time and in inhumane and degrading conditions that led to the deaths of multiple children. 

Second, and more pressing, is the need for comprehensive immigration reform. The system that we currently have perpetuates family separations. There have not been sufficient changes to that system that would enable migrant children who come to the United States to focus primarily on school.

Andrias: The Department of Labor has committed to ramping up enforcement. It has created a new interagency task force to try to handle the problem of child labor in a more coordinated way. And it’s trying to do more data-driven enforcement, where it prioritizes enforcement resources in industries that are particularly in need of such enforcement. The problem is that without significantly more funding, there’s only so much progress that effective and committed administrators can make.  

We also need comprehensive labor law reform. Our labor laws are woefully outdated. Not only is there a problem of extreme underenforcement, but also penalties are so low that it often makes economic sense for employers to violate the law. That is a serious problem that needs statutory reform. In addition, we need higher minimum wages, things like paid time off when you have a baby or when you’re ill, and a stronger right to organize unions. Because if workers lack power at work, if they lack an organization through which they can have a voice, no matter how many labor enforcers are hired at the federal level, the violations occur.

Andrias: Elora, how do you think the lifting of Title 42 will affect the issue of unaccompanied immigrant children? 

Mukherjee: After the lifting of the Title 42 expulsion order, there have been a number of important developments. On one hand, a number of conservative attorneys general have filed a federal lawsuit in Florida, trying to enjoin the federal government from lifting Title 42. That case remains pending. On the other hand, on the other side of the country, in California, immigrants’ rights groups have filed a lawsuit seeking a preliminary injunction that the new Title 8 regulations that were announced in May should be enjoined. Those Title 8 regulations effectively end asylum in the United States, with the exception of unaccompanied minors, who will continue to be allowed to cross into the United States. The effect of this change will be increased family separations, with children being allowed to enter the United States without their parents or primary caregivers. That will make those children even more vulnerable to exploitation than they would have been otherwise.   

Mukherjee: Kate, my question for you is: Where do you see hope for reform on these issues?

Andrias: One of the challenges with both immigration and labor law governing the right to unionize is that, because of preemption doctrine, reforming both of those bodies of law has to happen at the federal level. And therefore, I think the possibility for reform right now is pretty low, which is depressing.

On the other hand, there is exciting organizing work occurring at the state and local level. That’s one place where I see shoots of hope. I would point to the recent efforts of Starbucks workers to organize and the efforts of the writers in Hollywood to try to affect how AI is used. There’s been a real upsurge in organizing across both low-wage industries and more professional workers.

There’s also some important legislative reform occurring in states where there’s sufficient political power to do so on issues that are not preempted by federal law. New York state recently changed its laws to make it easier for farmworkers to organize. There are a number of efforts to protect domestic workers through state and local legislation. There are efforts to raise minimum wages, to pass scheduling protections, and to limit the ability of companies to use electronic monitoring of workers in numerous states.

Finally, there are some promising administrative efforts within the federal government. The effort at the Federal Trade Commission to prohibit companies from imposing on low-wage workers noncompete agreements is an example. At the National Labor Relations Board, the general counsel is also seeking to limit noncompete agreements and undertaking other reforms that would significantly protect workers’ democratic rights. The question will be how those fare in the courts.