Ending America's Reliance on Child Labor: Closing the Loophole in § 212

Abstract

Child labor legislation in the United States attempted to abolish child labor completely but has failed to do so. By 1938, Section 212 of the Fair Labor Standards Act abolished oppressive child labor; however, this criminalization of child labor only applies to manufacturers located inside the United States territory.This article argues to extend the Child Labor Provisions within the Fair Labor Standards Act by criminalizing the commercial sale of any good in the United States produced by child labor. Due to this current loophole in § 212, many American companies ignore the spirit of the Fair Labor Standards Act by relocating manufacturing to countries with lower wages that often either have no child labor laws or more relaxed child labor laws. Further, the intent of the Fair Labor Standards Act is circumvented by American sale and consumption of goods manufactured through the use of child labor by foreign and domestic companies.29 U.S.C. § 212 should criminalize the commercial sale of any good produced by child labor because: (1) the intent of the Child Labor Provisions within the Fair Labor Standards Act is to completely abolish “oppressive child labor,” yet this has only succeeded insofar as protecting American children, while American industry and consumerism exploits other nations’ children; (2) the language of the statute and subsequent case law state that employment of child labor is a serious, criminal offense. Many American corporations are still committing this offense abroad.Part I of this article describes the issues with child labor from an American and international perspective. Part II of this article explains the meaning of “oppressive child labor” and other key terms and concepts in 29 U.S.C. § 212. Part III of this article proposes the criminalization of the commercial sale of any good in the United States produced by child labor and the positive implications of this extension to 29 U.S.C. § 212.