By Leigh E. Colihan | 64 Am. U. L. Rev. 645 (2015)

Children are not allowed to purchase cigarettes, yet they may legally work on the fields that produce the tobacco for those cigarettes.  This anomaly can be traced back to the passage of the Fair Labor Standards Act (FLSA) in 1938 when the original exemption for agricultural laborers was first carved out.  The largely outmoded ideology that all farm work is wholesome fueled the legislature in 1938 to fight against a broad application of the minimum wage, overtime, and child labor provisions to the agricultural industry.  This created a sharp disconnect between the protections provided to children working in non-agricultural employment and those working in agriculture.  Today, the agricultural regulations remain unchanged.

In 2011, the Department of Labor (DOL) resolved to correct this discrepancy in the law and specifically sought to forbid the employment of child farm workers in tobacco production.  However, the DOL abandoned its plans for revision, conceding to pressure from Congress and farm representatives who feared the revisions would alter farming norms and negatively impact family-owned farms.  Because of the DOL’s decision, children, some as young as twelve, continue to legally work on tobacco farms.  This Comment argues that the DOL shirked its statutory responsibility under the FLSA and acted arbitrarily and capriciously in its decision not to revise the current agricultural provisions.

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