Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On September 26, 2023, the Bureau of Internal Labor Affairs (ILAB) of the U.S. Department of Labor (DOL) issued its 2022 Findings on the Worst Forms of Child Labor Report,1 analyzing the state of child labor in 131 countries and territories, including the United States, and outlining jurisdiction-specific recommendations to combat illegal child labor practices.2
According to the Report, in 2022, there were 160 million children still engaged in child labor, with nearly half working in hazardous conditions, including forced labor and commercial sexual exploitation. The Report focuses specifically on child labor, and the “worst forms of child labor.”
Child labor is defined, under United States law, as a subset of working children who are below the minimum age established in national legislation. For example, in the United States, this means children under the age of 14 years old, or 14- to 16-year-olds who are performing work not allowed under the Fair Labor Standards Act (FLSA).
Child Labor is also a key feature of internationally-recognized human rights, and is enshrined in two International Labour Organisation (ILO) Conventions, Convention No.138 on Minimum Age and Convention No. 182 on the Worst Forms of Child Labour. These Conventions are known as “fundamental” ILO Conventions, meaning that ILO member States (including the United States) are obliged to “respect, promote and realize the abolition of child labour,” even if they have not ratified the Conventions in question.3
The “worst forms of child labour,” is also defined by the ILO, at Convention 182, as follows:
- All forms of slavery or practices similar to slavery, such as the sale and trafficking of children, debt bondage and serfdom, and forced or compulsory labor, including forced or compulsory recruitment of children for use in armed conflict;
- The use, procuring, or offering of a child for prostitution, for the production of pornography, or for pornographic purposes;
- The use, procuring, or offering of a child for illicit activities, in particular for the production and trafficking of drugs as defined in the relevant international treaties; and
- Work which, by its nature or the circumstances under which it is carried out, is likely to harm the health, safety, or morals of children.4
The Report assigns a ranking to each of the 131 participating countries based on their meaningful efforts to eliminate child labor. The Report’s rankings may have impacts on the countries’ trade relations with the United States, as the rankings reflect to what extent a country has met its obligation under the Generalized System of Preferences (GSP) program5 to implement its international commitments to eliminate the worst forms of child labor.6
For 2022, 4 of the 131 countries achieved the highest ranking of “Significant Advancement,” specifically Argentina, Colombia, Côte d’Ivoire, and Uzbekistan, recognizing each made meaningful efforts to curb child labor in all relevant areas identified by ILAB, specifically legal frameworks, enforcement, coordination, policies, and social programs.
The Report also recognized countries that have made progress in the last year, including Ghana, Bolivia, Panama, and Morocco’s efforts to hire and train additional labor inspectors, Burundi’s significant increase in funding for labor inspections, Columbia’s creation of an elite group of inspectors focused on child labor, as well as Tunisia and Burkina Faso’s creation of digital platforms to assist with the identification of appropriate services for children removed from exploitative situations.
At the other end of the spectrum, nine countries received the lowest ranking of “No Advancement,” specifically Anguilla, the British Virgin Islands, the Falkland Islands (Islas Malvinas), Grenada, Montserrat, Afghanistan, Burma, Eritra, and South Sudan. The countries that received this lowest ranking did so either because they made no effort to prevent the “worst forms of child labor,” or because they had a policy or demonstrated practice of being complicit in the use of child labor.
Child Labor in the United States
The Report also addressed child labor in the United States, noting that in FY 2022, the DOL found 3,876 minors were employed in violation of the FLSA, 688 minors were employed in violation of Hazardous Occupation Orders, and over $4 million in civil money penalties were imposed for child labor violations.
Additionally, with the creation of the DOL’s new interagency child labor task force, announced in February 2023, domestic enforcement has shot up: from October 2022 to July 2023, there was a 44% increase in findings of federal child labor violations, and an 87% increase in penalties assessed compared to the same time period in the previous fiscal year. In July 2023, the DOL also announced that it would be pursuing the 700+ open child labor cases currently before it, so we can expect to see enforcement numbers continue to increase in the coming year.
For a summary of the FLSA’s federal child labor law restrictions, see Littler’s 2021 article.
The Report identifies enforcement as a critical tool in combating child labor, estimating that enforcement-related gaps account for 38% of the outlined policy recommendations. Further, during a press conference announcing the release of the Report, Acting Secretary of Labor Julie Su warned that companies are responsible for child labor that occurs in their supply chain, specifically calling out the use of subcontractors and staffing agencies. This warning comes just weeks after the DOL published a Field Assistance Bulletin providing guidance to WHD field staff on the “hot goods” requirements in the FLSA, and on the DOL’s authority to “utilize the hot goods provision as an enforcement tool for child labor violations.”7 Section 212(a) of the FLSA prohibits the interstate shipment of “hot goods,” defined as goods that were produced in an establishment in or about which oppressive child labor occurred, as well as subsequent downstream shipments.8 As noted in the FAB, the DOL has the statutory authority to seek a court order compelling downstream producers, manufacturers, or dealers to stop shipment, and can assess civil money penalties and other enhanced compliance terms. Reiterating its commitment to combatting oppressive child labor, the DOL noted at the end of the FAB its intention to “[use] all appropriate enforcement tools, including the hot goods provision of section 212(A)” to curtail child labor violations.
The Report also highlights that global child labor risks should be assessed by U.S. companies. Addressing child labor risks in global corporate operations has become a cornerstone of “human rights due diligence,” as set forth in the United Nations Guiding Principles on Business & Human Rights,9 and the Report emphasizes this corporate role.10 For companies engaging in this due diligence of their global operations, the Report is intended to serve as a tool in assessing which countries pose an elevated risk for child labor.11 As company human rights and sustainability programs continue to evolve and proliferate, companies would be wise to remain aware of these fluid developments and how their own programs and policies should be modified.
In light of the DOL’s recent enforcement-focused approach to addressing child labor violations, both domestic and international employers that currently utilize minor workers should take steps to ensure compliance with applicable child labor laws and require their contractors and other business partners do the same.
1 The ILAB has published its annual ‘Findings on the Worst Forms of Child Labor’ since 2002, as mandated by the Trade and Development Act of 2000. The 2022 Report can be viewed online at https://www.dol.gov/agencies/ilab/resources/reports/child-labor/findings?_ga=2.125311368.381094391.1695921843-1847012661.1695921843. See U.S. Dep’t of Labor, 2022 Findings on the Worst Forms of Child Labor (Sept. 26, 2023) (hereinafter the “2022 Report”).
The Report can also be accessed through the Department’s Sweat & Toil mobile application, a comprehensive resource developed by the ILAB documenting child labor and forced labor worldwide. See https://www.dol.gov/general/apps/ilab
2 In addition to the Child Labor Report, the DOL also annually issues two other reports geared towards identifying the impact of child labor in U.S and international trade and supply chains:
- ILAB’s List of Goods Produced by Child Labor or Forced Labor; and
- ILAB’s Better Trade Tool.
4 See ILO C. 182. The Report also uses the term “categorical worst forms of child labor” which does not include the fourth category of activities, commonly known as hazardous work, in its definition.
U.S. trade preference programs such as the GSP provide opportunities for many of the world’s poorest countries to use trade to grow their economies and climb out of poverty. GSP is the largest and oldest U.S. trade preference program. Established by the Trade Act of 1974, GSP promotes economic development by eliminating duties on thousands of products when imported from one of 119 designated beneficiary countries and territories.
6 2022 Report at pp. 1, 83.
7 U.S. Dep’t of Labor, Wage & Hour Div., Field Assistance Bulletin 2023-03 (Aug. 31, 2023).
8 See 29 U.S.C. § 212(a). “Oppressive child labor” is broadly defined in the FLSA including any violation of the DOL’s Child Labor Regulations and Orders (codified at 29 C.F.R. Part 570). Id.
9 Human Rights Council Res. 17/4 (July 16, 2011), U.N. Doc. A/HRC/17/31, annex, “Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework”, guidingprinciplesbusinesshr_en.pdf (ohchr.org).
10 2022 Report at p.29 (“Companies, we’re calling on you to take supply chain transparency and due diligence seriously. If child or forced labor is in your supply chain, address it.”).
11 2022 Report at pp. 23-24.