This week the New York Times published a story detailing the horrific exploitation of child migrant workers in America. This is not a new problem. Children have been used as workers in every state in the US, probably in your town, in factories, domestic household labor, construction and agriculture for decades; centuries. The companies hiring these children intentionally seek the most legally, politically, socially, linguistically vulnerable people least likely to report workplace abuse. The companies are as responsible as subcontractors (human traffickers) they utilize to shield themselves from liability.
Most of the children in the story were from Central America, paroled into the US to seek immigration relief like asylum, T or U visas, or special immigrant juvenile status (SIJS), all complex applications requiring expert legal assistance.
Some of the children in the article were living with relatives and HHS, into whose care DHS released them acknowledged that it had lost track of many and that almost two-thirds were probably working full time. The Times described a 13-year old rising at dawn to work as a day laborer, a girl working alongside a factory full of other child migrant workers for Hearthside Food Solutions, one of the countries’ largest food manufacturers, and “baby-faced” child workers at JBS meat plant, the “world’s largest meat processor.” Reuters reported a twelve year old working in a Hyundai subsidiary in Alabama.
Congress, in the FLSA, sets age restrictions at 14 for non-agricultural jobs, restricts the number of work hours for children under 16, and restricts those under 18 from hazardous occupations. The fact that children can work legally at all is distressing as children are typically considered unable to form the requisite legal consent to sign an enforceable contract. States are challenging these restrictions, attempting to ban the phrase “child labor,” and lower the age below 14 for meatpacking plants. New Hampshire increased the work week for 16 and 17 year olds to 35 hours.
The child labor described in the Times article is not new. As reported, Hearthside, with 39 factories in the US, has been cited by OSHA 34 times since 2019. Workers had limbs severed and one worker had her scalp ripped off. Child workers have had their legs torn off in factories and their spines shattered on construction sites.
Companies known for their dangerous or even horrific working conditions have incentives and loopholes, embedded in the law, to hire and exploit children and other migrant workers. In a rare bipartisan show of unity Congress passed the Trafficking Victim Protection Act, but enforcement is undertaken largely by DHS, which makes the likelihood of a migrant worker reporting exploitation unlikely. Migrants have become wary that any complaint will result in deportation of themselves or a loved one.
Biden responded this week by promising to increase employer fines and create a task force for HHS and DOL to cooperate. This is insufficient. For seven years, asylum has been decimated by law, most recently by Biden. The more restrictive immigration laws are, the greater the power placed in the hands of would be exploiters. As a refugee famously wrote – no one leaves home unless home is the mouth of a shark. Children do not leave home to work in the US unless there is even more to fear at home.
We must acknowledge that companies have incentives to hire the most legally vulnerable, and make child migrants less vulnerable. Biden should task HHS with finding and funding independent immigration lawyers for every child admitted. Each has a unique legal claim, and each requires counsel to protect their rights. Biden also needs to disaggregate labor abuse investigations from DHS. For decades complaints result in ICE deporting workers and not punishing employers; complaints are unlikely to be initiated by workers. They will remain invisible.
America has become dependent on exploited migrant labor. Once again. Congress knows nefarious brokers are engaging human trafficking, yet it still permits employers to use brokers, some registered with DOL, to shield themselves from liability. The fact that we allow employers to find and hire the most vulnerable and least legally visible workers, and then fail to assist them, that is the problem we need to fix.