American youth in the workplace: legal aberration, failed social policy.

AuthorMoskowitz, Sy
  1. INTRODUCTION

    "'Young people who spend more time flipping burgers and stacking boxes than preparing for a meaningful career may be hindering their own futures and the future of this country.'"

    --Mario Cuomo (1)

    Today, the workplace is as much a part of American teen life as the Friday night football game and the high school prom. Students in the 1990s were twice as likely to be working than students in 1950. (2) In 2001, an estimated 3.7 million adolescents between the ages of fifteen and seventeen were employed. (3) Likewise, large numbers of children under fifteen were working during the same time period. (4) The United States has the highest percentage of working children of any developed nation: many work long hours even during the school week. (5) These statistics have remained stable for at least a decade.

    Employment does present potential benefits for the adolescent. Working can provide valuable lessons about responsibility, punctuality, interacting with the public, and finances. However, work in the United States poses substantial immediate and long-term safety and health risks for youth workers. The National Institute for Occupational Safety and Health ("NIOSH") reports an average of sixty-seven minors die each year from work-related injuries. (6) Additionally, 77,000 are treated in hospital emergency facilities for injuries. (7) Annually, over 200,000 minors are injured on the job. (8)

    Other indicators of a minor's well being, such as academic performance, are also negatively affected by employment, particularly by working excessive hours. (9) Most scholars consider twenty or more hours per week--termed "high intensity work"--to be the threshold for negative outcomes. (10) High school students who work twenty hours or more have lower grade point averages than students who do not work, or who work fewer hours. (11) They are more likely to be suspended from school, (12) to use cigarettes or other harmful substances, (13) to have more traffic accidents, (14) and to experience a wide variety of other negative outcomes. Subgroups of child workers--particularly those in agriculture--are at even greater health and educational risks. (15)

    Like most social science propositions and data, great controversy surrounds the appropriate variables to be considered and the conclusions to be drawn from those variables. (16) Drawing causal links is difficult: correlation should not be equated with causation. The association between work intensity and academic outcomes may, for example, be attributable to pre-existing differences: youths who were previously performing poorly in lower grades may be working more intensely in high school. Nevertheless, the prestigious Institute of Medicine, the research arm of the National Academy of Sciences, concluded after a thorough review of the literature that "high-intensity work ... is associated with unhealthy and problem behaviors." (17)

    Teens are working after choices are made about priorities in allocating time. Parent, child, and state form a triangle in decision-making regarding the lives of children. In Roman law and English common law, children were totally subject to the wishes of their parents--particularly the father. (18) Although the father owed duties of support and protection, Blackstone reported that children lived in the "empire of the father." (19) Today, doctrinal changes in constitutional law and statutes have equalized the legal position of the father and the mother. (20) In broad strokes, however, contemporary American law reflects the following dominant paradigm: minors are incompetent to make major life decisions and parents are entrusted with the task of making these choices because they will normally act in the child's best interest.

    Many legal scholars have argued that the formal lines of physical age or emancipation should not be the sole determinants of when an adolescent may be legally authorized to make important life decisions. (21) Moreover, in some instances, the usual presumption that parents act in the best interests of their children is questionable and thus, in particular circumstances, an alternate decision maker may be appropriate. (22) Nonetheless, in most instances, legal adulthood begins at eighteen: the financial support obligation of parents generally ends at this age, as well as the parents' rights to custody and control over their children. (23) Until the age of majority, the parent is entitled to receive information from schools or other sources and to make important choices about the life of the parent's child. (24) This legal norm is reflected at all levels of American law.

    While most major child-rearing decisions are reserved to parents, the law defines outer limits of that discretion. The state as parens patriae may limit "parental freedom and authority in things affecting the child's welfare." (25) Examples of these limits include child abuse and neglect statutes, compulsory school attendance laws, and required vaccinations. (26)

    Although the law's general view of the parent-child-state triangle has remained relatively stable over the past generation, families themselves have not. The National Commission on Children has observed that American families have undergone "social, demographic, and economic change." (27) Families have become smaller, children are commonly raised by one parent, mothers as well as fathers typically work, and divorce has become commonplace. (28) Still, the Commission found that "[p]arents bear primary responsibility for meeting their children's physical, emotional, and intellectual needs and for providing moral guidance and direction." (29)

    Although the United States Constitution never mentions family relationships, (30) the Supreme Court, in a series of decisions going back more than eighty years, has upheld the principle that parents have "fundamental liberty interests" in the "care, custody, and control" of their children." (31) It is state law, however, that defines most of the rights, limits, and responsibilities of family members and these rules similarly endorse the legal prerogative of parents. Family autonomy, a venerable doctrine in American family law, rules out interference by state actors in most family decisions. (32) Unemancipated children under the age of majority may not sue in their own name, (33) are not bound by their contracts, (34) and may not legally consent to sexual relations. (35) These are but a few illustrations of this legal paradigm.

    In the labor market, however, the legal rules are starkly different. Extraordinarily important decisions are given to adolescents. As a matter of federal law, no parental consent, or even notice to the parent, is required before a child may work. No employment certificate or permit is issued by the Department of Labor. (36) Some minimal hour and type of work limits are set for youths under sixteen in non-agricultural labor by federal law. (37) Once a child reaches sixteen, only jobs or equipment designated "hazardous" by the Department of Labor are off limits. (38) No other time or place restrictions are imposed on the work of sixteen and seventeen-year-olds from the federal government. (39)

    Child labor is also regulated by the states, (40) but this laissez-faire pattern dominates at that level as well. Astonishingly, only eighteen states limit children under the age of sixteen to three hours or less of work per day during the school year, or prohibit their employment altogether. (41) Only eighteen states require parental consent for children under-sixteen to work. (42) Thirty-six states allow sixteen and seventeen year olds to work forty hours or more while school is in session. (43) Only nine states mandate parental consent for sixteen and seventeen year old adolescents to work. (44) State child labor laws are also intimately connected to compulsory school attendance laws which set the minimum age for leaving school. While more states give parents the right to notice and to consent in the decision to drop out of school, in many places even this decision is left to the child once the minimum age is attained. (45) Twenty-two states allow sixteen year olds to make decisions about school attendance and withdrawal. (46)

    The situation may be summarized as follows. Under American law, a teen may not legally buy a bottle of beer or give valid consent for a routine physical examination. These and a host of other decisions are made, at least as a matter of law, by parents or by the government acting as patens patriae. A minor, however, in many instances, may choose if, when, where, and how long to work, or whether to attend school or not. The law gives parents or other adults little formal leverage in the decision making in these realms.

    To be sure, in the real world, parent and child often make joint decisions about work and school attendance after reasoned discussion. (47) But as any parent who has experienced adolescence with a child can attest, children often behave in ways contrary to the parent's guidance and, in many instances, the child's wishes are actually the decisive factor. Parents are often ignorant of large blocks of their adolescent's time and behavior. According to the most recent report by the National Campaign to Prevent Teen Pregnancy, two-thirds of the parents of sexually active fourteen-year-olds surveyed had no idea their children were sexually active. (48) This lack of knowledge is also present for many types of substance abuse. (49)

    This essay will discuss the issues embedded in the employment of adolescents in the American workplace. I shall argue that the current rules governing this topic are an exception to the norms governing decision-making affecting minors, which are based on the principle that the "best interests of the child" must prevail. The results of this aberration produce very significant negative social effects; therefore public policy on this topic should be radically changed. After this...

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