Limitations To the Ag Exemption

Over the years, Congress enacted some limits on the exemption. In 1966, the FLSA was amended to authorize the Secretary of Labor to create Agricultural Hazardous Occupations Orders (Ag HOs). The current Ag HOs prohibit the employment of otherwise nonexempt hired youth under the age of 16 years in certain types of ag employment; including operating a tractor over 20 PTO horsepower, operating or assisting to operate a corn picker, cotton picker, combine, hay mower, forage harvester, trencher, earthmoving equipment, etc.

The Ag HOs further prohibit hired youth from working in a yard, pen or stall occupied by a bull, boar, stud horse, or sow or cow with newborn offspring. Youth under age 16 are further prohibited from felling, bucking, loading timber and working from a ladder or scaffold, transporting and applying anhydrous ammonia and handling agricultural chemicals classified as Category I toxic under the Federal Insecticide, Fungicide, and Rodenticide Act. There are several other related prohibitions that can be found at 29 C.F.R. 570.71(a)(1-11). There is a student-learner exemption for youth enrolled in ag vocational education training programs that allows 14 and 15-year olds to perform some of the above listed tasks.(5)

The Proposed Rules

As noted above, the DOL’s proposed rules only impact “hired farm workers,” not children working on farms that are owned or operated by their parents. The statutory child labor parental exemption located in FLSA §3(c)(1) is remains valid. Thus, children employed on his or her parent’s farm are exempt from the Ag HOs unless they lose that status by working on a farm owned by a neighbor or non-parental relative. The proposed rules do not address, however, the question of whether children of parents operating farms owned by a legal entity can qualify for the exemption. Technically, the children would be employees of the entity, not the parent.

Authority exits in other areas of the law (primarily tax) for the utilization of a “lookthrough” approach as applied to entities. Under such approach, a determination would be made of who the persons are that are the majority owners of the entity. If a majority of the interests in the entity are held by the parents of the children-employees, the exemption would apply.

The following is a list of the proposed rules that present the most significant challenges to family farm operations that routinely employ young people.