[House Report 106-31]
[From the U.S. Government Publishing Office]
106th Congress Report
1st Session HOUSE OF REPRESENTATIVES 106-31
_______________________________________________________________________
AMENDING THE FAIR LABOR STANDARDS ACT OF 1938 TO PERMIT CERTAIN YOUTH
TO PERFORM CERTAIN WORK WITH WOOD PRODUCTS
_______
February 24, 1999.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Goodling, from the Committee on Education and the Workforce,
submitted the following
R E P O R T
together with
MINORITY VIEWS
[To accompany H.R. 221]
[Including cost estimate of the Congressional Budget Office]
The Committee on Education and the Workforce, to whom was
referred the bill (H.R. 221) to amend the Fair Labor Standards
Act of 1938 to permit certain youth to perform certain work
with wood products, having considered the same, report
favorably thereon without amendment and recommend that the bill
do pass.
Purpose
The purpose of H.R. 221 is to amend the Fair Labor
Standards Act of 1938 to allow certain youth to be employed
under certain conditions in businesses where machinery is used
to process wood products.
Committee Action
106TH CONGRESS
Representative Joseph R. Pitts introduced H.R. 221, along
with 13 cosponsors, on January 6, 1999. The Committee on
Education and the Workforce favorably reported the bill,
without amendment, by voice vote, on February 10, 1999.
105TH CONGRESS
The Subcommittee on Workforce Protections held a hearing on
April 21, 1998, on the effect of the Fair Labor Standards Act
on Amish families. The following individuals testified at the
hearing: the Honorable Joseph R. Pitts, Member of Congress,
representing the 16th District of Pennsylvania; Mr. Christ
Blank, Chairman of the Old Order Amish Steering Committee--
National, Kinzers, Pennsylvania; and Mr. William Burkholder,
owner of a sawmill, Centerville, Pennsylvania. Representative
Pitts introduced H.R. 4257, with eight cosponsors, on July 16,
1998. On July 22, 1998, the Committee on Education and the
Workforce ordered H.R. 4257 favorably reported, as amended, by
voice vote. The House passed the bill, with an amendment in the
nature of a substitute, by voice vote under suspension of the
rules on September 28, 1998. The Senate took no action on the
bill prior to the adjournment of the 105th Congress.
Committee Statement and Views
Background
The Fair Labor Standards Act of 1938 \1\ (FLSA) restricts
the employment of persons under the age of 18. The FLSA's
restriction on child labor is very general: ``No employer shall
employ any oppressive child labor in commerce or in the
production of goods for commerce or in any enterprise engaged
in commerce or in the production of goods for commerce.'' \2\
``Oppressive child labor'' is defined as any employment in
mining or manufacturing or ``in any occupation which the
Secretary of Labor shall find and by order declare to be
particularly hazardous for the employment of children * * * or
detrimental to their health or well-being. * * *'' \3\ The
Department of Labor has issued a series of ``Hazardous
Occupation Orders'' which further delineate what constitutes
``oppressive child labor'' under the FLSA.\4\
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\1\ 29 U.S.C. Sec. 201-219.
\2\ 29 U.S.C. Sec. 212(c).
\3\ 29 U.S.C. Sec. 203(l)(1) and (2).
\4\ 29 C.F.R. Sec. 570.50-570.68.
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Over the years, Congress has enacted a number of exceptions
to the general restrictions on child labor in the FLSA and the
Hazardous Occupation Orders. These exceptions address specific
occupations and permit persons under the age of 18 to work in
circumstances that would otherwise be prohibited. For example,
the FLSA has been amended to allow persons under the age of 18
certain employment in agriculture \5\ and newspaper
delivery.\6\ In 1996, the FLSA was amended to allow 16- or 17-
year-old employees to work around certain scrap paper balers
and compactors so long as those employees are not operating the
baler or compactor and certain other precautions are taken.\7\
In 1998, restrictions under the Department of Labor's Hazardous
Occupation Order on the driving of motor vehicles by 17-year-
old employees were amended by Public Law 105-334.
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\5\ 29 U.S.C. Sec. 213(c).
\6\ 29 U.S.C. Sec. 213(d).
\7\ 29 U.S.C. Sec. 213(c)(5).
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With regard to sawmills and places of employment with
woodworking equipment, the FLSA prohibits any person under the
age of 16 from working in manufacturing,\8\ which the
Department of Labor has determined includes sawmills and
woodworking. In addition, Hazardous Occupation Order No. 4 (HO
4) \9\ prohibits any 16-or 17-year-old from doing any work in a
sawmill building, the log pond area, and the log storage yard.
Outside of those areas, 16- or 17-year-olds may perform
clerical and certain clean-up activities. Hazardous Order No. 5
(HO 5) \10\ prohibits 16- or 17-year-olds from operating,
assisting to operate, setting up, adjusting, repairing, oiling
or cleaning power-driven woodworking machines. Woodworking
machines are any fixed or portable power-driven machines that
are used or designed for cutting wood or veneer.
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\8\ 29 U.S.C. Sec. 203(l).
\9\ 29 C.F.R. Sec. 570.54.
\10\ 29 C.F.R. Sec. 570.55.
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The Department of Labor does currently permit an exception
to the prohibition on working with woodworking machines for
apprentices or student-learners, provided they are employed
under specific conditions. An apprentice must be employed in a
craft recognized as an apprenticeable trade that is registered
with the Bureau of Apprenticeship and Training (BAT) at the
Department of Labor or with a State agency approved by BAT.
Student-learners must be enrolled in a course of study and
training in a vocational training program sanctioned and
monitored by the State.
The need for H.R. 221 grew out of a series of enforcement
actions which the Department of Labor began initiating in 1996
against members of the Amish community for employing persons
under the age of 18 in sawmills and small woodworking shops. As
a result of these enforcement actions, several Amish shop
owners and sawmill operators were assessed fines of several
thousands of dollars. The enforcement actions also ended many
of the employment opportunities for Amish youth under the age
of 18.\11\
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\11\ Hearing on the Effect of the Fair Labor Standards Act of 1938
on Amish Families before the Subcommittee on Workforce Protections,
Committee on Education and the Workforce, U.S. House of
Representatives, 105th Congress, Second Session, Serial No. 105-94, p.
6-10.
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In the Amish community, youth conclude their formal
education with the eighth grade and then progress to informal,
hands-on education, working with their families to acquire
vocational experience and practical skills in areas such as
farming and carpentry. As Mr. Christ K. Blank, Chairman of the
Old Order Amish Steering Committee--National, related to the
Subcommittee on Workforce Protections in April 1998: \12\
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\12\ Ibid.
Typically, the Amish youth leave school at the end of
the eighth grade, but their education does not stop
there. Instead, they only begin to absorb in earnest,
the knowledge and skills needed to earn a livelihood
and support a family. Upon completion of the eight
terms of elementary school, many Amish children are
enrolled in an informal vocation class of learning by
doing under parent and church supervision to further
prepare them to enter into the adult work place. This
informal vocational class is recognized by the United
States Supreme Court ruling in Wisconsin v. Yoder, as
an alternative to the compulsory school attendance
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laws.
Formal high school education beyond the eighth grade is
contrary to Amish beliefs, which require school age children to
learn by doing the skills directly relevant to their role as an
adult in the Amish community. Mr. Blank described this aspect
of the Amish culture to the Subcommittee: \13\
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\13\ Ibid.
At age 14, an Amish boy or girl is considered to be
ready for a full course of training. A training that
requires ``learning by doing.'' This adolescent period
is of utmost importance to our religious status. We
must not tolerate idleness during these adolescent
years, therefore we see a dire need that our youth
learn a trade or remain occupied, preferably under
supervision of a parent or church member. It is a long-
standing Amish belief and tradition to instill good
work ethics in our children at a young age and to start
training a child at a fairly young age to become a
self-supporting, respectful and law-abiding citizen. *
* * We strongly believe the ages 14 through 17 to be a
very tender receptive age in which to instill these
long-standing Amish values and work ethics in our
children. We believe that forced idleness in this age
to be detrimental to our long-standing Amish way of
raising our children and teaching them to become good
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productive citizens.
In the past, conflict between the Amish belief and practice
of ending formal education at age 14 and thereafter undertaking
``learning by doing,'' and the federal child labor laws which
prohibit or restrict many types of employment by persons under
the age of 18 was minimized by the Amish community's reliance
on farming and agriculture as the primary vocation. As
mentioned above, the FLSA includes provisions specific to
agriculture relating to the employment of persons under the age
of 18, which are less restrictive than those that would
otherwise apply, particularly for work on family farms.
Economic pressures over the years, including the rising cost of
land, have forced many Amish families out of agricultural
occupations. The need to generate income to purchase land and
pay taxes and medical bills has forced more and more Amish
families into other non-agricultural occupations such as
woodworking and carpentry. Mr. Blank described these changes to
the Subcommittee: \14\
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\14\ Ibid.
We recognize that, historically, the Child Labor laws
have been more lenient on farm labor, especially a
family farm. For many years our livelihood was based
largely on agriculture and for many still is. However,
due to many reasons beyond our control, the trend is
gradually forcing more and more of our youth to learn
other trades. We try to encourage an occupation where
such youth is learning by doing by working at a place
where his father or a member of the church is available
to supervise him.
Due to the high cost of our dwindling supply of farm
land, more and more of our families are being forced to
start small businesses such as woodworking shops,
welding shops, sawmills, pallet shops, etc. This is in
keeping with the Amish tradition of operating a family
business so the family can work together.
The current child labor laws thus directly and
significantly interfere with the ability of Amish families to
carry out an important part of their beliefs, culture and
lifestyle. The Amish belief that formal education should end at
the age of 14 and that Amish youth should thereafter ``learn by
doing'' is effectively undermined when these young people are
prevented by federal labor law from being trained at that age
in the workplaces and occupations that are most available to
them within the Amish community.
Members of Congress and representatives of the Amish
community have attempted to work with the Department of Labor
to find a solution to the conflict between the child labor
restrictions under the FLSA and the needs of the Amish to carry
out their religious beliefs and lifestyle. Members of Congress
met on several occasions with officials of the Department of
Labor to request assistance in reaching a practical solution to
the problem.\15\ The conference report for the fiscal year 1998
appropriations bill for the Departments of Labor, Health and
Human Services, and Education also urged the Department of
Labor to resolve the child labor issues relating to the Amish
community, while taking into account the special needs of the
Amish.\16\ Unfortunately the Department of Labor's response to
these efforts has consistently been unwillingness to consider
any changes in regulations and opposition to changes by
legislation.
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\15\ The efforts of Members of Congress to work with the Department
of Labor to accommodate the needs of the Amish are described in letters
dated August 7, 1997 and December 22, 1997 from Reps. Joseph Pitts,
Mark Souder, John Peterson, and Phil English to John Fraser,
Administrator, Wage and Hour Division and Alexis Herman, Secretary of
Labor, respectively, and letter dated November 12, 1997 from Senator
Arlen Specter to Alexis Herman, Secretary of Labor.
\16\ Conference Report to accompany H.R. 2264, making
appropriations for the Departments of Labor, Health and Human Services,
and Education, and related agencies for the fiscal year ending
September 30, 1998, and for other purposes, House Report No. 105-390,
p. 68.
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Legislation
H.R. 221 is a reasonable and practical solution to the
problem stemming from the Department of Labor's application of
the child labor provisions of the FLSA to youth in the Amish
community. The bill would amend the FLSA to allow Amish youth
to work under certain conditions in sawmills and other
workplaces where machinery is used to process wood products.
H.R. 221 would permit an individual who is at least 14
years of age and who is a member of a religious sect or
division thereof whose established teachings do not permit
formal education beyond the eighth grade to be employed inside
or outside places of business where machinery is used to
process wood products.
H.R. 221 provides a number of safety precautions pertaining
to those persons under the age of 18 (``minor'') who are
permitted by the bill to work in sawmills and other workplaces
containing power-driven woodworking equipment.
First, the minor may not, under any circumstances, operate
or assist in the operation of power-driven woodworking
machines.
Second, the minor must be supervised by an adult relative
of the minor or by an adult member of the same religious sect
or division of a sect as the minor.
Third, the minor must be protected from wood or other
flying debris within the workplace by a barrier appropriate to
the potential hazard of such wood particles or flying debris or
by maintaining a sufficient distance from machinery in
operation. The language of H.R. 221 is intended to provide
safety but also flexibility: a sawmill cutting heavy trees into
large boards would require a different type of barrier or a
different distance to be maintained than would a woodworking
shop which uses and cuts much smaller pieces of wood. The
requirement for a barrier does not necessarily require that the
minor be kept in a separate room or outside of the sawmill or
workplace in which the woodworking equipment is located. The
barrier used may be temporary, but it should be substantial
enough to provide protection against injury to the minor from
pieces of wood or other material which may be thrown in the
course of cutting logs or other wood products.
Fourth, the minor must be required to use personal
protective equipment to prevent exposure to excessive levels of
noise and sawdust. Standards regarding exposure to sawdust and
noise and the use of personal protective equipment to protect
against harmful levels of exposure in the workplace have been
established under the Occupational Safety and Health
Act.17 This provision of H.R. 221 is intended not to
require new or additional standards but to reinforce the
importance of those standards to individuals under the age of
18 for whom the bill applies.
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\17\ 29 U.S.C. Sec. 651-678. Regulations on exposure to dust and
noise are at 29 U.S.C. Sec. 1910.1000 and at 29 C.F.R. Sec. 1910.95.
Sawmills are generally regulated at 29 C.F.R. Sec. 1910.265, and wood-
working machinery is regulated at 29 C.F.R. Sec. 1910.213.
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During the Committee's markup of H.R. 221, Representative
Lynn C. Woolsey offered an amendment that would have prevented
an employer who employed an individual pursuant to H.R. 221
from utilizing the youth minimum wage under Section 6(g) of the FLSA.
The FLSA allows any employer to pay a youth minimum wage of not less
than $4.25 an hour to employees who are under 20 years of age during
the first 90 consecutive calendar days after initial employment. Rep.
Woolsey's amendment was defeated by vote by the Committee. The youth
minimum wage was passed, on bipartisan basis, in 1996 and is available
to all employers covered by the FLSA. There is no reason for singling
out the Amish as the only employers who would not be allowed to use it.
A second amendment, sponsored by Representative Dale E.
Kildee, would have conditioned the provisions of the bill on
whether the employer prepared and submitted details reports to
the Secretary of Labor on any work related injury or fatality
of an employee under age 18. Since there was no definition of
``work-related'' in the amendment, any injury in or around the
workplace occurring to an employee under age 18 requiring more
than first aid would likely be covered. A strained ankle
incurred outside a woodworking and having nothing to do with
being around woodworking equipment would be covered by the
Kildee amendment. If the employer failed to submit a detailed
report on the ankle injury to the Department of Labor, would
potentially result in substantial retrospective liability from
having employed the individual in the first place. The
Department of Labor, under the authority of the Occupational
Safety and Health Act, already has requirements for the
recording and reporting of injuries or fatalities on the
job.18 These requirements for recording and
reporting injuries and fatalities apply to employers of Amish
employees in the same way they apply to all other employers.
The Committee does not believe that Amish woodworking shops
should be singled out for additional reporting requirements,
particularly when there is no reasonable basis, such as
improved safety, shown for this additional requirement.
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\18\ 29 U.S.C. Sec. 657(c)(2).
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In a letter dated February 9, 1999, to the Chairman of the
Committee on Education and the Workforce on behalf of the
Department of Labor, the Secretary of Labor expressed the
Department's concerns that the protections provided in the
legislation considered during the 105th Congress were
inadequate.19 However, the Department of Labor again
offered no suggested changes to the legislation and, as
described above, the Department of Labor has been unwilling
over the past several years to provide a practical solution and
accommodation for the Amish seeking to preserve their beliefs
and lifestyle.
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\19\ Letter dated February 9, 1999, from Alexis M. Herman,
Secretary of Labor, U.S. Department of Labor, to the Honorable William
F. Goodling, Chairman, Committee on Education and the Workforce, U.S.
House of Representatives.
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Constitutionality of H.R. 221
Subsequent to House passage of H.R. 4257 in the 105th
Congress, the U.S. Department of Justice sent a letter to
Senator Specter regarding constitutional issues raised by H.R.
4257.20 The identical letter, with updated
references, was sent to Chairman Goodling on February 9,
1999.21 The Department of Justice letter states
that, in its view, the bill would ``raise serious concerns
under the Establishment Clause of the First Amendment to the
Constitution.'' However, the Department of Justice also stated
that ``[o]ur views are necessarily tentative, because of
several factual questions * * * as to which we do not have
sufficient information.''
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\20\ Letter dated September 25, 1998, from L. Anthony Sutin, Acting
Assistant Attorney General, U.S. Department of Justice, to the
Honorable Arlen Specter, Chairman, Subcommittee on Labor, Health and
Human Services, and Education. Committee on Appropriations, U.S.
Senate.
\21\ Letter dated February 9, 1999, from Dennis K. Burke, Acting
Assistant Attorney General, U.S. Department of Justice, to the
Honorable William Goodling, Chairman, Committee on Education and the
Workforce, U.S. House of Representatives.
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The Committee believes that the legislation embodied in
H.R. 4257 in the 105th Congress and H.R. 221 in the 106th
Congress is constitutional.
The Department of Justice letter completely ignores the
fact that, as described above, numerous exceptions and special
provisions to the FLSA's general provisions have been enacted,
including several that pertain to the application of the child
labor restrictions. These exceptions and special provisions
have all been designed to address particular circumstances
where the general restrictions on child labor have created a
particular burden and are deemed excessively restrictive to
protect the well being of persons under the age of 18. H.R.
221, in granting narrow and limited relief in one more such
situation, is in line with many previous amendments to the
FLSA. H.R. 221 is not special relief of a type granted to no
other group in society. There is no reason to consider the
Amish less deserving of carefully crafted relief than any
secular group or occupation.
The fact that Congress has created numerous FLSA exceptions
and special provisions for other groups and occupations is an
important factor in whether the relief granted in H.R. 221 is
an Establishment of Religion. In Rojas v. Fitch,22
the exemption for religious employers from federal and state
unemployment taxes was challenged as an unconstitutional
Establishment of Religion. The Court of Appeals upheld the
exemption, stating that, ``the current exemption for religious
employment * * * rests within the context of a variety of other
exemptions, all of which appear to share a common secular
purpose. Efficient administration of the unemployment
compensation system is particularly enhanced through the
exemptions for religion because it eliminates the need for
government to review employment decisions made on the basis of
religious rationales.'' 23 Similarly here, the
provisions of H.R. 221 cannot be viewed separately from the
many previous exemptions and special provisions in the FLSA
that have been enacted since 1938 in order to address
particular burdens or unnecessary restrictions imposed by the
general provisions of the law.
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\22\ 127 F.3d 184 (1st Cir., 1997), cert. denied 118 S.Ct. 2341
(1998).
\23\ 127 F.3d at 188.
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The Department of Justice letter also shows little
understanding or respect for the dilemma facing the Amish as
they seek to maintain their religious lifestyle in changing
circumstances. The Department of Justice letter dismisses the
Amish tradition of ``learning by doing'' certain trades and
occupations as simply a matter of economic choice by the Amish.
But as the Supreme Court recognized in Wisconsin v.
Yoder,24 the Amish religion is tied to a whole
lifestyle that cannot be easily separated between religious and
secular aspects: 25
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\24\ 406 U.S. 205, 92 S.Ct. 1526 (1972).
\25\ 406 U.S. at 210.
* * * As a result of their common heritage, Old Order
Amish communities today are characterized by a
fundamental belief that salvation requires life in a
community separate and apart from the world and world
influence. This concept of life aloof from the world
and its values is central to their faith.
A related feature of the Old Order Amish communities
is their devotion to a life in harmony with nature and
the soil, as exemplified by the simple life of the
early Christian era that continued in America during
much of our early national life. Amish beliefs require
members of the community to make their living by
farming or closely related activities. Broadly
speaking, the Old Order Amish religion pervades and
determines the entire mode of life of its adherents. *
* *
Establishment Clause cases before the U.S. Supreme Court
have covered a wide variety of factual settings, from aid to
religious schools to chaplains in state
legislatures.26 The only Supreme Court decision on
an Establishment Clause challenge to a legislative exemption to
an employment law of general application is Church of Jesus
Christ of Latter-Day Saints v. Amos.27 The Amos case
involved a challenge to the exemption for religious
organizations from Title VII's prohibition on discrimination on
the basis of religion.28 The Supreme Court upheld
the exemption, finding that Congress had a permissible
``secular legislative purpose'' in granting the exemption: ``It
is a permissible legislative purpose to alleviate significant
governmental interference with the ability of religious
organizations to define and carry out their religious
missions.'' 29
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\26\ See ``The Law of Church and State: Developments in the Supreme
Court Since 1980'' (January 9, 1998), CRS pub. 98-65A by David M.
Ackerman.
\27\ 483 U.S. 327, 107 S.Ct. 2862 (1987).
\28\ 42 U.S.C. Sec. 2000e-1.
\29\ 483 U.S. at 335.
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In its letters on H.R. 4257 and H.R. 221, the Department of
Justice stated that it does not have sufficient factual basis
on which to evaluate whether this ``purpose'' test, as stated
in Amos, is met with regard to the Amish and the relief granted
by H.R. 221. However, the Committee has developed such a
factual record. As discussed above, the Amish community has,
for a number of reasons, been forced to rely less on
agriculture and more on other occupations, including sawmills
and woodworking shops. As Mr. Blank testified in 1998 before
the Subcommittee on Workforce Protections, the Amish belief in
``learning by doing'' is an integral part of Amish training and
upbringing of young people. But such means of training within
the Amish community is possible only if the trades and
occupations of the Amish are available to these young people.
For the Amish, prohibiting young people from practically
learning the trades that are increasingly the trades and
occupations which the Amish are dependent upon constitutes
``significant governmental interference'' with their lifestyle
and religious mission.
H.R. 221 is distinguished from the legislative exemption
that was challenged in Amos in that it does not apply to all
religious organizations. H.R. 221 applies only if the
individual involved is between the ages of 14 and 18 and ``is a
member of a religious sect or division thereof whose
established teachings do not permit formal education beyond the
eighth grade.'' In some cases the courts have suggested that
any legislation that distinguishes among religious groups be
subject to stricter scrutiny than would be the case if the
legislation benefited all religious organizations. E.g., Larson
v. Valente,\30\ (holding unconstitutional a state law granting
some religious organizations, but not others, exemption from
registration and disclosure of charitable contributions);
Children's Healthcare v. Vladeck,\31\ (holding unconstitutional
provisions of Medicare and Medicaid granting special payment
conditions for Christian Science sanitoria).
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\30\ 456 U.S. 228 (1982).
\31\ 938 F.Supp 1466 (D.Ct. MN, 1996).
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Even in these cases, however, differentiating among
religious groups is not per se unconstitutional; it simply
triggered stricter scrutiny by the court as to whether Congress
or the state legislature had a sound reason for differentiating
among religious groups. The scope of the relief must be
appropriate to the legislative purpose. For example, in
Vladeck, the district court found that the legislative purpose
of accommodating Christian Scientists in the Medicare and
Medicaid programs was permissible and appropriate, but that by
specifically naming Christian Science in the statute, Congress
had foreclosed the same relief to other similarly situated
religious groups: ``there is no guarantee that a religious
group in a similar situation to the Christian Scientists (i.e.,
a religious group believing in faith healing which has set up
certain institutions to promote such healing) would receive
similar accommodation from Congress.'' \32\
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\32\ 938 F.Supp at 1480.
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In contrast to the Medicare and Medicaid statutes, the
exemption in H.R. 221 is available to any similarly situated
religious group. Further, the scope of the relief from
otherwise applicable child labor restrictions is directly
related to the legislative purpose of relieving a conflict
between the child labor regulations and the needs of those
religious groups who believe that formal education should end
after the eighth grade.
Finally the Department of Justice letter raises the concern
that in order to be constitutional, H.R. 221 may not place
Amish youth at ``significant threat of harm.'' As is described
above, H.R. 221 includes several protections to ensure that
those youth who are permitted to train and work in workplaces
in which they are now prohibited are not placed in any
significant threat of harm.
Conclusion
The Committee agrees with the Department of Labor that the
benefits of facilitating the cultural and religious traditions
of the Amish must be balanced against the safety and welfare of
the children. The Committee believes that this legislation
strikes an appropriate balance between the cultural and safety
issues surrounding the employment of Amish youth in certain
businesses.
Summary
H.R. 221 would amend the Fair Labor Standards Act of 1938
to allow teenagers to work in businesses where machinery is
used to process wood products if they are: at least 14 years of
age but under the age of 18; a member of a religious sect or
division whose established teachings do not permit formal
education beyond the eighth grade; supervised by an adult
relative or an adult who is a member of the same religious sect
or division; not allowed to operate or assist in the operation
of power-driven woodworking machines; protected from flying
debris or wood particles by a barrier appropriate to the
potential hazard of such wood particles or flying debris or by
maintaining a sufficient distance from machinery in operation;
and protected from excessive levels of noise and sawdust by
personal protective equipment.
Section-by-Section Analysis
Section 1. Exemption
This provision would amend section 13(c) of the Fair Labor
Standards Act of 1938 to specify that in the administration and
enforcement of the child labor provisions of the Act, it shall
not be considered oppressive child labor for an individual who
is at least 14 but under the age of 18, and is a member of a
religious sect or division thereof whose established teachings
do not permit formal education beyond the eighth grade, to be
employed inside or outside places of business where machinery
is used to process wood products. The employment of such
individual shall be permitted if the individual is supervised
by an adult relative of the individual or is supervised by an
adult member of the same religious sect or division as the
individual; if the individual does not operate or assist in the
operation of power-driven woodworking machines; if the
individual is protected from wood particles or other flying
debris within the workplace by a barrier appropriate to the
potential hazard of such wood particles or flying debris or by
maintaining a sufficient distance from machinery in operation;
and if the individual is required to use personal protective
equipment to prevent exposure to excessive levels of noise and
sawdust.
Explanation of Amendments
The bill was ordered reported without amendment.
Application of Law to the Legislative Branch
Section 102(b)(3) of Public Law 104-1 requires a
description of the application of this bill to the legislative
branch. This bill, H.R. 221, amends the Fair Labor Standards
Act to permit certain youth to perform certain work with wood
products. The bill does not prevent legislative branch
employees from receiving the benefits of this legislation.
Unfunded Mandate Statement
Section 423 of the Congressional Budget and Impoundment
Control Act (as amended by Section 101(a)(2) of the Unfunded
Mandates Reform Act, P.L. 104-4) requires a statement of
whether the provisions of the reported bill include unfunded
mandates. This bill amends the Fair Labor Standards Act to
permit certain youth to perform certain work with wood
products. As such, the bill does not contain any unfunded
mandates and decreases federal mandates on the private sector.
Rollcall Votes
Clause 3(b) of rule XIII of the Rules of the House of
Representatives requires the Committee Report to include for
each record vote on a motion to report the measure or matter
and on any amendment offered to the measure of matter the total
number of votes cast for and against and the names of the
Members voting for and against.
Statement of Oversight Findings and Recommendations of the Committee
In compliance with clause 3(c)(1) of rule XIII and clause
2(b)(1) of rule X of the Rules of the House of Representatives,
the Committee's oversight findings and recommendations are
reflected in the body of this report.
New Budget Authority and Congressional Budget Office Cost Estimate
With respect to the requirements of clause 3(c)(2) of rule
XIII of the House of Representatives and section 308(a) of the
Congressional Budget Act of 1974 and with respect to
requirements of clause 3(c)(3) of rule XIII of the House of
Representatives and section 402 of the Congressional Budget Act
of 1974, the Committee has received the following cost estimate
for H.R. 221 from the Director of the Congressional Budget
Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, February 11, 1999.
Hon. William F. Goodling,
Chairman, Committee on Education and the Workforce,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 221, a bill to
amend the Fair Labor Standards Act of 1938 to permit certain
youth to perform certain work with wood products.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Christina
Hawley Sadoti.
Sincerely,
Barry B. Anderson
(For Dan L. Crippen, Director).
Enclosure.
H.R. 221--A bill to amend the Fair Labor Standards Act of 1938 to
permit certain youth to perform certain work with wood products
H.R. 221 would amend the Fair Labor Standards Act (FLSA) to
permit youths between the ages of 14 and 18 who are members of
a religious sect or division that does not permit formal
teaching beyond the eighth grade to be employed in the
processing of wood products. Absent this legislation, certain
Amish-owned sawmills could face fines for child labor law
violations. CBO estimates these fines would be less than
$30,000 each year. Therefore, enactment of this bill would
result in a reduction of receipts from such fines, but the
amount is likely to be insignificant. Nevertheless, pay-as-you-
go procedures would apply.
H.R. 221 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA)
and would not have any significant effects on the budgets of
state, local, or tribal governments.
This estimate was prepared by Christina Hawley Sadoti
(federal cost), Hester Grippando (revenues), Susan Sieg (impact
on state, local, and tribal governments), and Ralph Smith
(impact on the private sector).
This estimate was approved by Paul N. Van de Water,
Assistant Director for Budget Analysis.
Statement of Oversight Findings of the Committee on Government Reform
With respect to the requirement of clause 3(c)(4) of rule
XIII of the Rules of the House of Representatives, the
Committee has received no report of oversight findings and
recommendations from the Committee on Government Reform and
Oversight on the subject of H.R. 221.
Constitutional Authority Statement
Under clause 3(d)(1) of rule XIII of the Rules of the House
of Representatives, the Committee must include a statement
citing the specific powers granted to Congress in the
Constitution to enact the law proposed by H.R. 221. The Fair
Labor Standards Act of 1938 has been determined, by the Supreme
Court, to be within Congress' Constitutional authority. In
United States v. Darby, 312 U.S. 100 (1941) and OPP Cotton
Mills, Inc., et al. v. Administrator of Wage and Hour Division
of Department of Labor, 312 U.S. 126 (1941), the Supreme Court
found that the regulation of hours and wages of work to be
within the scope of Congressional powers under Article 1,
Section 8, Clause 3 of the Constitution of the United States.
H.R. 221 amends the Fair Labor Standards Act of 1938. Because
H.R. 221 modifies but does not extend the federal regulation of
wage and hour laws, the Committee believes that the Act falls
within the same scope of Congressional authority as the Fair
Labor Standards Act of 1938.
Committee Estimate
Clauses 3(d)(2) of rule XIII of the Rules of the House of
Representatives requires an estimate and a comparison by the
Committee of the costs that would be incurred in carrying out
H.R. 221. However, clause 3(d)(3)(B) of that rule provides that
this requirement does not apply when the Committee has included
in its report a timely submitted cost estimate of the bill
prepared by the Director of the Congressional Budget Office
under section 402 of the Congressional Budget Act.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (new matter is
printed in italic and existing law in which no change is
proposed is shown in roman):
SECTION 13 OF THE FAIR LABOR STANDARDS ACT OF 1938
exemptions
Sec. 13. (a) * * *
* * * * * * *
(c)(1) * * *
* * * * * * *
(6)(A) Subject to subparagraph (B), in the administration and
enforcement of the child labor provisions of this Act, it shall
not be considered oppressive child labor for an individual
who--
(i) is at least 14 but under the age of 18, and
(ii) is a member of a religious sect or division
thereof whose established teachings do not permit
formal education beyond the eighth grade,
to be employed inside or outside places of business where
machinery is used to process wood products.
(B) The employment of an individual under subparagraph (A)
shall be permitted--
(i) if the individual is supervised by an adult
relative of the individual or is supervised by an adult
member of the same religious sect or division as the
individual;
(ii) if the individual does not operate or assist in
the operation of power-driven woodworking machines;
(iii) if the individual is protected from wood
particles or other flying debris within the workplace
by a barrier appropriate to the potential hazard of
such wood particles or flying debris or by maintaining
a sufficient distance from machinery in operation; and
(iv) if the individual is required to use personal
protective equipment to prevent exposure to excessive
levels of noise and saw dust.
MINORITY VIEWS
The Fair Labor Standards Act (FLSA), prohibits minors under
the age of 16 from working in manufacturing operations,
including saw mills. The Secretary of Labor (through Hazardous
Occupations Order No. 4) also prohibits minors under 18 years
of age from working in saw mill operations and the logging
industry. In addition, Hazardous Occupations Order No. 5
specifically prohibits such youth from operating power driven
wood-working machines. These protections serve two well known
purposes: (1) to ensure that children are not employed in
hazardous occupations and (2) to protect adult workers from
unfair competition from child workers who do not yet have
burden of supporting themselves.
H.R. 221 amends the FLSA by permitting 14- through 17-year-
olds ``to be employed inside or outside of places of business
where machinery is used to process wood products,''
1 occupations in which their employment would
otherwise be prohibited; provided that the minor ``is a member
of a religious sect or division thereof whose established
teachings do not permit formal education beyond the eighth
grade'' 2 and the minor is supervised by an adult
relative or ``an adult member of the same religious sect or
division'' 3 as the minor. H.R. 221 promotes the
employment of minors in hazardous occupations. It invites the
displacement of adult workers by minors who do not yet face the
burden of supporting themselves. And it distinguishes among
citizens, advantaging some and disadvantaging others, on the
basis of an individual's religious beliefs.
---------------------------------------------------------------------------
\1\ See H.R. 221, Section 1, at ``(6)(A).''
\2\ Id., at ``(6)(A)(ii).''
\3\ Id., at ``(6)(B)(i).''
---------------------------------------------------------------------------
safety and health concerns
Injury data collected over several decades consistently
show that the lumber and wood products industry is particularly
hazardous work for adults, let alone children. The 1996
occupational fatality rate of 25.6 work-related deaths per
100,000 workers was more than five times the national average
``all private industry'' rate of 5.1 per 100,000 workers and
had actually increased over the 1995 rate. The occupational
fatality rate in the lumber and wood products industry is
higher than in either the construction industry or the trucking
and warehousing industry. In 1996, 203 occupational fatalities
occurred in the lumber and wood products industry. The
frequency of all non-fatal injuries was almost twice as high in
the lumber and wood products industry (14.2 per 100 full-time
workers) as the national average for all industries (7.4 for
every 100 workers).
Even for those workers who do not operate power-driven
equipment, saw mills present significant occupational risks.
The Occupational Safety and Health Administration has
documented examples of workers who were crushed by falling
loads, run over by front-end loaders, caught under a fork lift,
and injured by rolling logs. One witness, testifying on behalf
of this legislation, told of how he lost several fingers when,
during a moment of inattention, he carelessly set his hand on a
conveyor belt and the belt ran his hand into a saw.
Inexperience, smaller size, and lack of maturity all serve
to make the potential risks faced by minors even greater than
they are for adults. It is unreasonable to expect a fourteen
year-old to maintain the kind of continuous safety concern we
expect of adults.
The Department of Labor opposes the bill based on these
safety concerns: ``The Department of Labor is concerned that
these conditions would not adequately protect the children's
safety. Adult presence in the workplace would not be able to
protect children from the split-second mistake that could cost
them a finger, hand, or worse. Preventing children from
operating machinery would still leave them at risk from
forklifts, front-end loaders, falling loads, and rolling
logs.''
To ensure the Committee learns of injuries or fatalities
that result from this legislation, Representative Kildee
offered an amendment during the markup to require that
employers report work-related injuries and deaths occurring to
minors employed pursuant to H.R. 221 to the Department of
Labor. The amendment is based upon a similar requirement
contained in legislation enacted in the 104th Congress
permitting 16- and 17-year-olds to load certain balers and
compactors, Public Law 104-174, and is intended to ensure that
specific information is readily available regarding the impact
of this legislation on the health and safety of minors. If no
injuries or fatalities occur to minors as a result of being
employed inside or outside places of business where machinery
is used to process wood products, the amendment places no
additional burdens upon employers. However, in the event that
minors are injured or killed as a result of the enactment of
H.R. 221, Mr. Kildee's amendment, if adopted, would better
enable policy makers to identify risks and to craft
improvements to address those risks.
The Occupational Safety and Health Act already requires the
reporting of injuries or fatalities on the job. However, as Mr.
Kildee pointed out in Committee, identifying Amish youth on the
basis of OSHA reports would not be possible. The purpose of Mr.
Kildee's amendment is to ensure there is accurate, readily
available information regarding the impact of H.R. 221 on the
health and safety of minors. The Majority contends that Amish
saw mills and woodworking shops should not be singled out for
additional reporting requirements ``when there is no reasonable
basis, such as improved safety, shown for this additional
requirement.''
In fact, the amendment did not single out Amish saw mills
or woodworking shops. H.R. 221 singles out the Amish be
permitting employers, regardless of whether they are Amish, to
employ Amish youth. Mr. Kildee's amendment only seeks to ensure
that policy makers are sufficiently informed of the extent to
which the newly authorized employment, in practice, may pose
risks to the health and safety of those youth. Clearly, the
absence of such information adversely affects the ability of
policy makers to develop effective policies to improve the
safety of minors. As Mr. Kildee stated during the markup, ``If
minors are injured or killed as a result of enactment of H.R.
221, we have a responsibility to ensure that we areboth aware
of the fact and that we have the information necessary to develop the
appropriate legislative response.''
displacement of adult workers
H.R. 211 encourages the displacement of adult workers by
hiring minors. On the basis of the child's religious beliefs,
H.R. 221 permits certain children, as young as 14 years old, to
be employed in occupational settings in which all other
children have been excluded for more than 60 years. These
children, unlike the adult workers with whom they will compete
for jobs, do not yet face the burden of supporting themselves
and a family. Rather, they continue to live in their parents'
home and their financial needs remain the responsibility of
their parents. As a consequence, these young workers are likely
to be willing and able to work for substantially less money
than the adults with whom they compete. This unfortunate aspect
of the legislation is exacerbated by provisions of the Fair
Labor Standards Act that permit the employment of those under
20-years of age for up to ninety days at $4.25 an hour, 90
cents an hour less than the minimum wage applicable to the
overwhelming majority of adult workers.\4\
---------------------------------------------------------------------------
\4\ See section 6(g) of the Fair Labor Standards Act of 1938, 29
U.S.C. 206(g).
---------------------------------------------------------------------------
An amendment offered in Committee by Ms. Woolsey sought to
mitigate the unfair impact that this legislation will have on
those adults who are not Amish by requiring that minors
employed pursuant to H.R. 221 be paid at least the minimum
wage. Defeated on a party-line vote, the Majority contends
``there is no reason for singling out the Amish as the only
employers who would not be allowed to use it [the sub-minimum
wage].'' First, the Majority misrepresent their own bill. H.R.
221 permits any employer to employ Amish youth ``inside or
outside places of business where machinery is used to process
wood products.'' Notwithstanding the Majority's disingenuous
description of the bill, Ms. Woolsey's amendment does not
discriminate against Amish employers, it benefits Amish youth.
Second, Amish youth are the only one's for whom the protections
of the child labor laws are being waived. If Amish youth are to
be treated as adults for purposes of the child labor laws, they
should also be treated as adults for purposes of the minimum
wage law.
There are few, if any, employed in the lumber and wood
products industry today at the minimum wage. For example the
average hourly earnings for production workers in saw mills and
planing mills in 1998 was $11.10 an hour, more than twice the
minimum wage. There are even fewer employed at the sub-minimum
wage. H.R. 221 expands the pool of eligible workers who may be
employed at the sub-minimum wage. Further, by expanding that
pool to children who are not self-supporting, it greatly
increases the likelihood that the newly eligible workers will
be willing to work for minimum or sub-minimum wages. This fact
is not lost on the Amish, themselves, as was made clear in a
National Public Radio report on May 30, 1998:
NPR Reporter: But some Amish, like this eighteen-
year-old who works in his father's wood shop making
gazebos, admit that there are far less spiritual
reasons for taking on the Labor Department.
Unidentified Eighteen-Year-Old: There needs to be
cut--cuts in the pricing somewhere and the children
really help to do the family way of doing things.
NPR Reporter: You can be more competitive if you have
kids helping out in the shops?
Eighteen-Year-Old: To an extent, that's the main
point.
Not only are adult workers likely to be displaced as a
consequence of enactment of H.R. 221, but the likely
willingness of minors to work for lower wages than adults would
otherwise accept is likely to suppress the wages adult workers
will receive. In our view, displacing adult workers with minors
is bad policy.
constitutional issues
The First Amendment provides that ``Congress shall make no
law respecting and establishment of religion.''
The Supreme Court has developed two clear and well known
tests to determine whether a statute may violate the
establishment clause. The first, initially enunciated in Lemon
v. Kurtzman, 403 U.S. 602 (1971), establishes a three pronged
approach to the issue. To survive an establishment clause
challenge, the law must: ``(1) reflect a clear secular purpose;
(2) have a primary effect that neither advances nor inhibits
religion; and (3) avoid excessive government entanglement with
religion.'' \5\ The test established in Lemon was subsequently
limited by Larson v. Valente, 456 U.S. 228 (1982) which
established a more stringent test: ``[W]hen we are presented
with a state law granting a denominational preference, our
precedents demand that we treat the law as suspect and that we
apply strict scrutiny in adjudging its constitutionality.''
(456 U.S. 246). Under Larson, a law granting a denominational
preference must be ``closely fitted'' to the furtherance of a
``compelling government interest.'' (456 U.S. 255).
---------------------------------------------------------------------------
\5\ Lee v. Weisman, 505 U.S. 577, 585 (1992) (applying Lemon).
---------------------------------------------------------------------------
Advancing the employment opportunities of minors and adults
of a specific religious persuasion does not obviously embody
``a clear secular purpose.'' \6\ H.R. 221 also requires the
Department of Labor to make the determination that a particular
group ``has established teachings that do not permit formal
education beyond eighth grade'' and to then make a
determination as to whether an employee, be it a minor or the
minor's supervisor, is a bona fide member of that religious
group. In effect, in order to administer this legislation, the
Department of Labor must inquire of all workers regarding their
religious affiliation, if any. This appears to invite
``excessive government entanglement with religion.''
---------------------------------------------------------------------------
\6\ A religious exemption would only meet the ``clear secular
purpose'' if it has the purpose and effect of alleviating significant
governmental interference with a religious organization's ability to
``define and carry out its religious mission.'' Corporation of the
Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v.
Amos, 483 U.S. 327, 335, 339 (1987). See page 2, U.S. Department of
Justice letter attached, which finds that there is insufficient support
basis for determining H.R. 221 significantly interferes with the
ability of the Amish to ``define and carry out their religious
missions.''
---------------------------------------------------------------------------
Leaving aside those issues, however, it appears obvious
that, by affording employment opportunities to adults and
minors whose religious tenets prohibit formal education beyond
the eight grade, while denying similar opportunities to all
others, H.R. 221 has a primary effect of advancing one set of
religious beliefs while inhibiting the religious beliefs of
others.
The Majority cite Church of Jesus Christ of Latter-Day
Saints v. Amos (483 U.S. 327 (1987)) for the contention that
H.R. 221 is permissible within the establishment clause. As the
majority states, Amos involved a challenge to the exemption for
religious organizations from Title VII's prohibition on
discrimination on the basis of religion. We strongly concur in
the views expressed by the Department of Justice (attached at
the end of these views) that H.R. 221 does not appear to
satisfy the test for permissible accommodations that would
permit it to be sustained in accordance with the test
established under Lemon. However, as Amos makes clear, Larson,
not Lemon, is the applicable test to H.R. 221. Whereas Title
VII's religious exemption, at issue in Amos, applies to all
religions, the religious exemption created by H.R. 221 applies
only to ``a religious sect or division thereof whose
established teachings do not permit formal education beyond the
eight grade.'' As the Court stated in Amos:
* * * Larson indicates that laws discriminating among
religions are subject to strict scrutiny, and that laws
``affording a uniform benefit to all religions'' should
be analyzed under Lemon.\7\
---------------------------------------------------------------------------
\7\ Church of Jesus Christ Latter-Day Saints v. Amos, 483 U.S. 327,
338 (1987) (emphasis in the original).
If H.R. 221 is difficult to justify under the more lenient
test imposed by the Lemon decision, it is even more difficult
to justify under the stricter Larson test. The only compelling
interest that is identifiable basis of the legislative language
is to promote the employment of certain youth ``inside and
outside of places of business where machinery is used to
process wood products.''
The Majority contends in this report that H.R. 221 is
essential if the Amish belief in ``learning by doing'' is to be
preserved. In fact, however, Amish are employed in a wide range
of occupations. They work in construction, in machine shops, in
retail stores, and in offices in addition to working on farms
and in saw mills and woodworking shops. If, in fact, the child
labor laws have become an impingement on the Amish belief in
``learning by doing'' as Amish youth begin to take up new kinds
of employment, why are the child labor restrictions only lifted
as they apply to businesses where machinery is used to process
wood products?
Nor can it be said that H.R. 221 has been ``closely
fitted'' to this compelling government interest. Historically,
Amish youth have been employed on a full-time basis from the
age of 14 on the family farm. However, farming opportunities
have not kept pace with the growth in population and as a
consequence Amish must increasingly find other forms of
employment. No evidence has been presented to the Committee
that the new jobs can only or must be exclusively found in
businesses where machinery is used to process wood products.
Indeed, the fact that power machinery is used at all represents
a compromise of traditional Amish beliefs. Rather, the core
value that would seem to be at stake is ability of the Amish to
employ their youth in a ``community separate and apart from the
world and world influence.'' The question to be asked with
regard to H.R. 221 is whether it is closely fitted to further
this end. The answer is that it is not.
H.R. 221 permits an Amish youth to be employed in any
business where machinery is used to process wood so long as the
youth is supervised by an adult relative or another adult
member of the same religious sect or division. A business of
5,000 people, none of whom are Amish, would be able to employ
Amish youth so long as it also employed one additional person
of the same religious sect to supervise the youth. In short,
H.R. 221 is not closely tailored to provide a limited exception
for Amish family businesses. Rather, it seems intentionally
designed to promote the employment opportunities of those of
one religious belief over those who hold different beliefs.
If the compelling interest that H.R. 221 is suppose to
serve is not readily identifiable and if H.R. 221 is not
closely fitted to that interest, it is no surprise. No hearings
were held on H.R. 221. Only a single hearing has been held on
this legislation and that in the last Congress. The only
witnesses at that hearing were the sponsor of the legislation,
the Chairman of the Old Order Amish Steering Committee, and an
Amish sawmill owner. No constitutional scholars presented
testimony before the committee and virtually no testimony was
received concerning the constitutional problems provoked by
this legislation. In a report that was circulated but never
filed to accompany the predecessor to H.R. 221, H.R. 4257, the
Majority stated:
The letter from the Deputy Secretary of Labor also
conveyed, without elaboration, ``that the Department of
Justice has serious concerns about the
constitutionality of the proposed legislation as
drafted.'' Neither the Department of Justice nor anyone
else has previously raised this objection.
The Majority has, of course, failed to provide the
Department of Justice, or anyone else, with an opportunity to
raise this objection. When it was learned that H.R. 221 was
being scheduled for markup in the Committee, Mr. Owens, the
ranking Democrat on the subcommittee on workforce protections,
wrote the Chairman ``to urge that a hearing be held in order
that the Committee may consider the constitutional implications
of H.R. 221 before the bill is marked-up.'' Regrettably, the
Majority chose not to act upon Mr. Owens' request and, as a
consequence, whether H.R. 221 furthers a compelling interest
and whether it is closely fitted to that interest have never
been seriously considered by the Committee.
There are, of course, two other obviously compelling
interests also at stake: protecting the health and safety of
minors and protecting adults from unfair competition from child
labor. If the Majority is of the view that supervision by
specific adults, the use of personal protective equipment, the
prohibition against operating machinery, and the requirement
that there be a barrier or adequate distance to protect minors
from flying debris are fully sufficient to protect the health
and safety of minors, then there is no basis for restricting
this legislation to only those who are members of certain
religious sects. The factthat H.R. 221 only permits those of a
certain religion to be employed in such hazardous settings as saw mills
raises obvious constitutional problems.
Issues similar to those raised by H.R. 221 were raised in
Brock v. Wendell's Woodwork Inc. (867 F.2d 196 (1989)). In that
case, members of the Shiloh True Light Church of Christ
provided home schooling for their children for one-half of a
day and the children, some as young as nine and ten, were
enrolled in ``apprenticeship programs'' for the other half. The
apprenticeship programs included work at a woodworking
enterprise and a large masonry contractor. The Secretary of
Labor brought an action for violation of the child labor laws.
The church members claimed an exemption from those laws under
the free exercise clause of the First Amendment. The court
found:
* * * [T]hat the members of the True Light Church are
sincerely convinced that they are rearing their
children in a manner dictated by their religious
beliefs. They sincerely believe that vocational
training has spiritual as well as secular worth. There
is nothing in the federal statutes, however, that
prevents church members from arranging for some
instruction of their children in vocational pursuits.
When the means adopted to serve that end consist of
employing children in commercial enterprises that
compete with other employers fully subject to the labor
laws, however, the religious beliefs of the church
members cannot immunize the employers from enforcement
of the federal statutes * * *
* * * [W]e may not ignore the interest of competing
employers who comply with the relevant labor laws and
feel the need to be free from competition with
employers who do not comply.
It is no answer to this concern that the church
members now concede that minimum wages should have been
paid to the children. There is nothing to indicate that
competing employers employ experienced adults at
minimum entry level wages.
In short, the interest of the United States in the
even-handed application and enforcement of its labor
laws must prevail over the interest of church members
who attempt to transport a vocational training program
into industrial and commercial environments where
children, save for their ages, are indistinguishable
from other employees.\8\
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\8\ Brock v. Wendell's Woodwork, Inc., 867 F.2d 196, 198-9.
In a case involving the Amish, Wisconsin v. Yoder, 406 U.S.
205 (1972), the U.S. Supreme Court found that Wisconsin could
not impose liability on Amish parents for failure to comply
with the State's compulsory school attendance law. The Court
held, ``that secondary schooling, by exposing Amish children to
worldly influences in terms of attitudes, goals, and values
contrary to beliefs, and by substantially interfering with the
religious development of the Amish child and his integration
into the way of life of the Amish faith community at the
crucial adolescent stage of development, contravenes the basic
religious tenets and practice of the Amish faith * * *''. (406
U.S. 218). The Court further concluded, ``that accommodating
the religious objections of the Amish by forgoing one, or at
most two, additional years of compulsory education will not
impair the physical or mental health of the child, or result in
an inability to be self-supporting or to discharge the duties
and responsibilities of citizenship, or in any other way
materially detract from the welfare of society.'' (406 U.S. 233
(emphasis added)). Therefore, the State's interest in its
system of compulsory education was not sufficiently compelling
to be sustained in the face of the challenge that it violated
the free exercise clause of the First Amendment.
In determining that the State's interest was not
sufficiently compelling, the Court noted that compulsory
education laws reflect ``the movement to prohibit most child
labor under age 16 that culminated in the provisions of the
Fair Labor Standards Act of 1938. * * * [T]he 16-year education
limit reflects, in substantial measure, the concern that
children under that age not be employed under conditions
hazardous to their health, or in work that should be performed
by adults.'' (406 U.S. 228). The Court went on to note that the
case before it ``is not one in which any harm to the physical
or mental health of the child or to the public safety, peace,
order, or welfare has been demonstrated or may be properly
inferred.'' Unlike Wisconsin's compulsory education law,
however, one of the principal issues raised by H.R. 221 is the
health and safety of minors. A decision that the Majority
selectively cites to buttress H.R. 221, Wisconsin v. Yoder
serves only to further call into question the constitutionality
of the legislation.
We believe that the significant threat to the safety of
Amish minors raised by the Department of Labor, and the serious
constitutional issues created by H.R. 221, require us to oppose
this dangerous exemption to our country's most critical child
protection law.
Department of Justice,
Office of Legislative Affairs,
Washington, DC, February 9, 1999.
Hon. William F. Goodling,
Chairman, Committee on Education and the Workforce, House of
Representatives, Washington, DC.
Dear Mr. Chairman: This letter sets forth the views of the
Department of Justice on H.R. 221, a bill to amend the Fair
Labor Standards Act of 1938 (``FLSA'') to permit certain minors
to perform certain work with wood products. Our views
necessarily are preliminary, because of several factual
questions (discussed below) as to which we do not have
sufficient information. Based on the information available to
us at this time, however, H.R. 221 as drafted would, at the
very least, raise serious concerns under the Establishment
Clause of the First Amendment to the Constitution.
H.R. 221 would amend the FLSA's provisions on child labor
to permit the employment of certain minors ``inside or outside
places of business where machinery is used to process wood
products.'' H.R. 221, Sec. 1 (proposing 29 U.S.C.
Sec. 213(c)(6)(A)). The FLSA prohibits minors under 16 years of
age from working in manufacturing, including sawmill
operations. See 29 U.S.C. Sec. 212(a) (prohibiting shipment and
delivery of goods produced in establishment employing ``any
oppressive child labor practice''); id Sec. 203 (defining
``oppressive child labor''). In addition, as permitted by the
FLSA, see id., the Secretary of Labor has by order designated
occupations in logging and sawmill operations as ``hazardous
occupations'' and has prohibited the employment of persons
under 18 years of age in such operations. 29 C.F.R. Sec. 570.54
(Hazardous Occupations Order No. 4). H.R. 221 provides that it
shall not be considered an oppressive child labor practice to
employ in a sawmill operation an individual who is between the
ages of 14 and 18 and who ``is a member of a religious sect or
division thereof whose established teachings do not permit
formal education beyond the eighth grade.''
It is a ``principle at the heart of the Establishment
Clause'' that the government ``should not prefer * * * religion
to irreligion.'' Board of Educ. of Kiryas Joel Village School
Dist. v. Grumet, 512 U.S. 687, 703 (1994); see also Wisconsin
v. Yoder, 406 U.S. 205, 220-21 (1972) (noting that ``an
exception from a general obligation of citizenship on religious
grounds may run afoul of the Establishment Clause''). Thus, as
a general rule the government may not exempt religious
adherents from obligations by which nonadherents must abide;
instead, exemptions from otherwise generally applicable
prohibitions must be drawn on a religion-neutral basis in order
to pass muster under the Establishment Clause. See, e.g., Texas
Monthly, Inc. v. Bullock, 489 U.S. 1 (1989); Kiryas Joel, 512
U.S. at 703-05.\1\
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\1\ In Texas Monthly, for example, the Court invalidated a sales-
tax exemption provided exclusively to religious periodicals. The
plurality reasoned that ``when government directs a subsidy exclusively
to religious organizations that is not required by the Free Exercise
Clause and that either burdens nonbeneficiaries markedly or cannot
reasonably be seen as removing a significant state-imposed deterrent to
the free exercise of religion, * * * it `provide[s] unjustifiable
awards of assistance to religious organizations' and cannot but
`conve[y] a message of endorsement' to slighted members of the
community.'' 489 U.S. at 15 (quoting Corporation of Presiding Bishop of
Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 348
(1987) (O'Connor, J., concurring in the judgment)). A government may,
of course, provide such benefits to religious adherents when such
persons are included in a broader class of similarly situated
beneficiaries, defined in secular terms and reflecting some legitimate
secular aim. See Texas Monthly, 489 U.S. at 15-17 (plurality opinion)
(scope of beneficiary class must reflect legitimate ``secular aim,''
and not have the ``purpose or effect of sponsoring certain religious
tenets or religious belief in general'').
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The exemption in H.R. 221 would permit children in certain
religious sects or divisions to be employed in places of
business where other children may not be employed. This
preference for religion over ``irreligion'' would violate the
Establishment Clause, unless it could be defended as a
permissible accommodation of religious exercise. A statutory
exception exclusively for religion may be a permissible
accommodation where, inter alia, the exception has the purpose
and effect of ``alleviat[ing] significant governmental
interference with the ability of religious organizations to
define and carry out their religious missions,'' Corporation of
the Presiding Bishop of the Church of Jesus Christ of Latter-
Day Saints v. Amos, 483 U.S. 327, 335, 339 (1987), or of
otherwise removing ``a significant state-imposed deterrent to
the free exercise of religion,'' Texas Monthly, 489 U.S. at 15
(plurality opinion); see also Kiryas Joel, 512 U.S. at 705
(noting that ``the Constitution allows the State to accommodate
religious needs by alleviating special burdens'' on religious
belief and practice) (emphasis added).
It is not apparent, based on the limited facts of which we
are aware, how H.R. 221 would satisfy this part of the test for
permissible accommodations. As we understand it, the Amish
religion forbids or strongly discourages formal education
beyond the eighth grade. Accordingly, the Supreme Court has
held that states must, in certain circumstances, permit Amish
children to be excused from compulsory educationalrequirements
for older teenagers, Wisconsin v. Yoder, supra. This accommodation, as
we understand it, alleviates what otherwise would be a governmentally
imposed burden on the exercise of the Amish religion. We are not aware
of any congressional finding or understanding that the Amish religion
also requires or strongly encourages its minors to work in sawmills. It
may be that the Amish religion encourages or requires that children
work alongside other members of the community, in order to instill in
the children certain work ethics and values of self-reliance that are
an important part of an Amish education.\2\ And it also may be the case
that many adults in Amish communities work in sawmills. But, unless it
is the case that the FLSA prohibition on employing children in sawmills
significantly burdens the religious exercise of those within the
community, or significantly interferes with the ability of the Amish
``to define and carry out their religious missions,'' Amos, 483 U.S. at
335--as opposed to simply imposing an economic burden on the Amish
community--the exemption would not appear to satisfy the requirement of
the accommodation doctrine that the preference for religion alleviate a
significant government-imposed burden on religious mission or exercise.
Federal law does not, of course, wholly prevent the Amish from
instructing their children in vocational pursuits--it merely prohibits
children from working in a discrete number of dangerous environments.
Whether this imposes a burden on religion, and if so, whether and under
what circumstances that burden is ``significant'' or ``special,'' will
depend upon factual circumstances that we are in no position to
evaluate.
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\2\ See Brock v. Wendell's Woodwork, Inc., 867 F.2d 196, 198 (4th
Cir. 1989) (describing another religious sect that ``sincerely
believe[s] that vocational training [by members of the sect] has
spiritual as well as secular worth'').
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Moreover, assuming that the FLSA child-labor prohibition
does impose a significant burden on religious exercise in some
cases, any statutory exemption should be crafted in a manner
that is directly related to the alleviation of that burden. As
presently drafted, a necessary condition for invoking the
exemption from the FLSA in H.R. 221 would be a minor's
connection to a religious sect or division with certain
prohibitions on formal education; the exemption therefore would
not be tailored to the question whether or not the FLSA's child
labor prohibitions would, in any particular case, impose a
burden on religious exercise, or on the community's religious
mission, where a minor already has been exempted from certain
of a state's compulsory education requirements.
Because we lack sufficient information, we are unable to
conclude with any certainty whether the child labor laws
relating to sawmills significantly burden Amish religious
exercise.\3\ Even if such laws do impose such a significant
burden, however, H.R. 221 would raise two other potential
Establishment Clause problems. First, the exemption would be
triggered, not by an individual's religious belief or exercise,
but instead, by an individual's membership in a certain
religious sect or division. The Establishment Clause prohibits
the government--except upon an extraordinary showing--from
favoring certain religious sects, or favoring religious belief
that comports with that of established religious sects. See
Larson v. Valente, 456 U.S. 228 (1982); Kiryas Joel, 512 U.S.
at 706-07 (``whatever the limits of permissible legislative
accommodations may be, * * * it is clear that neutrality as
among religions must be honored''); See also Frazee v. Illinois
Department of Employment Security, 489 U.S. 829, 834 (1989)
(``Undoubtedly, membership in an organized religious
denomination, especially one with a specific tenet forbidding
members to work on Sunday, would simplify the problem of
identifying sincerely held religious beliefs, but we reject the
notion that to claim the protection of the Free Exercise
Clause, one must be responding to the commands of a particular
religious organization.''). It may be that all or most of the
minors who would satisfy the proposed exemption do belong to
particular religious sects or divisions. But the Constitution
does not permit the government to make such affiliation a
condition of receiving preferential treatment. The exemption,
if it is to pass constitutional muster, must at the very least
be extended to cover other persons who can make a sincere claim
that their religious exercise is significantly burdened by the
child labor law at issue but who do not belong to designated or
defined religious sects or divisions. See e.g., Wilson v. NLRB,
920 F.2d 1282 (9th Cir. 1990), cert denied, 505 U.S. 1218
(1992); Davis v. State, 451 A.2d 107, 112-14 (Md. 1982); Dalli
v. Board of Educ., 267 N.E. 2d 219, 223 (Mass. 1971). Moreover,
insofar as the exemption is designed to relieve a burden on
individuals' religious exercise, there would not appear to any
grounds for extending the exemption to cover members of defined
sects or divisions who do not sincerely believe the relevant
tenets of those sects or divisions.
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\3\ Of course, if a minor or a religious community were able to
demonstrate that the child labor provisions of the FLSA imposed a
substantial burden on religious exercise, then the Religious Freedom
Restoration Act (``RFRA'') would require the government to grant an
exemption or otherwise alleviate such burden, unless the government
could demonstrate that imposition of the burden is in furtherance of a
compelling governmental interest and is the least restrictive means of
furthering that compelling governmental interest. 42 U.S.C.
Sec. 2000bb-1. See also id. Sec. 2000bb-2(1) (RFRA applies to any
``branch, department, agency, instrumentality, and official (or other
person acting under color of law) of the United States''); id.
Sec. 2000bb-3(a) (RFRA ``applies to all Federal * * * law, and the
implementation of that law, whether statutory or otherwise''); In re
Young 141 F.3d 854, 857-63 (8th Cir.) (RFRA constitutional as applied
to the federal government and to federal law), cert, denied sub nom.
Christians v. Crystal Evangelical Free Church, 119 S. Ct. 43 (1998).
Cf. Wendell's Woodwork, 867 F.2d at 198-99 (applying analogous test
where challenge to child labor laws was brought under the Free Exercise
Clause); Reich v. Shiloh True Light Church of Christ 85 F.3d 616
(mem.), 1996 WL 228802, at *3 (4th Cir. 1996) (same).
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Second, even if the exemption would lift a significant (or
``special,'' Kiryas Joel, 512 U.S. at 705) government-imposed
burden on religion, nevertheless the exemptionmight raise
serious, independent constitutional concerns were it to result in any
significant threat of harm to the health of minors. The Court has
reasoned that a religious accommodation may be constitutionally
problematic if it ``burdens nonbeneficiaries markedly.'' Texas Monthly,
489 U.S. at 15 (plurality opinion); see also Estate of Thornton v.
Caldor, Inc., 472 U.S. 703, 709-10 (1985) (invalidating religious
preference that did not lift government-imposed burden and that imposed
``significant'' and ``substantial'' burdens on nonbeneficiaries). We do
not have sufficient information to determine whether the sponsors
intend that the ``beneficiaries'' of the exemption include the exempted
minors themselves. However, at least insofar as Congress's principal
intent is to alleviate a significant burden on the Amish religious
communities' ability to ``define and carry out their religious
missions,'' Amos, 483 U.S. at 335--rather than to alleviate a
significant burden on the religious exercise of Amish minors, as such--
then the constitutional analysis may well be affected by any resulting
threat of harm to the health of the exempted minors.\4\
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\4\ For related discussion in the context of Free Exercise claims,
see Prince v. Massachusetts, 321 U.S. 158, 166-67 (1944) (``The right
to practice religion freely does not include liberty to expose * * *
the child * * * to ill health or death.''); id. at 170-71 (rejecting
Free Exercise challenge to child labor law restriction); Yoder, 406
U.S. at 230 (emphasizing in the Free Exercise context that ``[t]his
case, of course, is not one in which any harm to the physical or mental
health of the child or to the public safety, peace, order, or welfare
has been demonstrated or may be properly inferred''); id. at 234
(reemphasizing that ``[t]he record strongly indicates that
accommodating the religious objections of the Amish by forgoing one, or
at most two, additional years of compulsory education will not impair
the physical or mental health of the child'') id. at 233-34 (``To be
sure, the power of a parent, even when linked to a free exercise claim,
may be subject to limitation under Prince if it appears that parental
decisions will jeopardize the health or safety of the child''). See
also Wendell's Woodwork, 867 F.2d at 199 (in addition to the interest
in protecting children's health, ``we may not ignore the interest of
competing employers who comply with the relevant labor laws and feel
the need to be free from competition with employers who do not
comply'').
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Finally, we should note one additional concern that the
proposal would raise, even if the basic exemption were a
permissible accommodation. The proposal would permit an
exemption for child labor in sawmill operations only where,
inter alia, ``the individual is supervised by an adult relative
of the individual or is supervised by an adult member of the
same religious sect or division as the individual.'' Proposed
Sec. 213(c)(6)(B)(i). This would, in essence, require sawmill
operations to hire, as supervisors of the excepted minors,
``member[s] of the same religious sect or division as the
[minors].'' The Religion Clauses of the First Amendment
prohibit the government from requiring such sect-based
discrimination, and, more generally, from establishing
religious tests as a condition of employment. See Larson;
McDaniel v. Paty, 435 U.S. 618 (1978); Torcaso v. Watkins, 367
U.S. 488, 492-93 (1961).\5\
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\5\ See also, e.g., County of Allegheny v. ACLU Greater Pittsburgh
Chapter, 492 U.S. 573, 591 (1989) (quoting Everson v. Board of Educ.,
330 U.S. 1, 15-16 (1947)) (``Neither a state nor the Federal Government
may * * * pass laws which aid one religion, aid all religions, or
prefer one religion over another. Neither can force nor influence a
person to go to or to remain away from church against his will or force
him to profess a belief or disbelief in any religion. No person can be
punished for entertaining or professing religious beliefs or
disbeliefs, for church attendance or non-attendance.''); Employment
Division v. Smith, 494 U.S. 872, 877 (1990) (the government ``may not
compel affirmation of religious belief, punish the expression of
religious doctrines it believes to be false, impose special
disabilities on the basis of religious views or religious status or
lend its power to one or the other side in controversies over religious
authority or dogma'').
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Thank you for the opportunity to present our views on this
matter. If we may be of additional assistance, we trust that
you will not hesitate to call upon us. We also stand prepared
to assist the Department of Labor in further discussions on
these issues. The Office of Management and Budget has advised
that there is no objection from the standpoint of the
Administration's program to the presentation of this report.
Sincerely,
Dennis K. Burke,
Acting Assistant Attorney General.
cc: The Honorable William Clay, Ranking Minority Member.
William L. Clay.
Dale E. Kildee.
Major R. Owens.
Patsy T. Mink.
Lynn Woolsey.
Carolyn McCarthy.
Harold E. Ford, Jr.
David Wu.
George Miller.
Donald M. Payne.
Robert E. Andrews.
Bobby Scott.
Carlos Romero-Barcelo.
Ruben Hinojosa.
John F. Tierney.
Loretta Sanchez.
Dennis J. Kucinich.
Rush Holt.