A Legal Loophole Plays a Key Role in the Deaths of Teenage Farmworkers
This piece originally appeared in The Nation magazine, a project of The Nation Institute, and is reprinted here with their permission.
Michael Steele, a gregarious kid whose friends sometimes called him Bubba, had recently shot up from chubby middle-schooler to a teen with a six-foot-three, 185-pound frame. For the last couple of summers, beginning when he was just 13, he had worked chopping wood, selling his garden vegetables and hauling hay for local farmers. Michael, who shared a home in the tiny town of Frankford, Missouri, with his mother and sister, had his eyes on a single goal. "He saved up all his money for a truck," his mother, Dena Steele, told me.
"He went from playing video games 24/7 to working all the time. Even when one of his friends or his girlfriend wanted to hang out, he told them, 'No, I have to work.'"
The truck Michael wanted was a blue 2002 Dodge Ram pickup with a Cummins diesel engine, the kind you see on rural roads with custom alterations like giant wheels or chromed exhaust pipes curving up from the sides of the cab. Michael’s mind was so fixed on this truck that he’d begun to build his life dreams around it, setting his sights on a vocational program in diesel mechanics.
By last summer, Michael had saved up $7,000 from his modest farm wages, but he didn’t live to get his Dodge Ram. He went out the afternoon of July 1 with a friend, 17-year-old Matt McGlasson, to earn just a little more, moving hay bales for a horse farmer who is a cousin of his grandfather's.
Michael climbed high up into the driver’s seat on a 1954 International Harvester tractor, the same model his grandfather had taught him on—a tractor built before seat belts came along. It had a long flatbed trailer, 10 to 15 feet, hitched to its rear for carrying hay bales.
McGlasson rode on the empty trailer, his back to Michael. The gravel road to the hay field was dusty but even, free of potholes. But somehow Michael lost his balance. McGlasson told the Highway Patrol at the scene: "I was sitting on the back of the trailer facing north. I heard him yell and saw he was holding on to, I think, the back of the seat. I stood up and seen him let go and fall."
Michael had fallen to the left side, onto the roadway. McGlasson reacted fast, clambering along the trailer to the tractor's gears to stop it. But the tractor continued, driverless, for a crucial moment, long enough for the left wheels and axle of the flatbed to crush Michael's chest. He died at the scene. He was just 15.
People think of child labor as being a thing of the past in the United States, and to work most jobs kids do have to be at least 16. But from the start, the Fair Labor Standards Act, enacted in 1938, treated farmwork differently. In agriculture, kids as young as 12 can work legally. Provisions governing dangerous work are different in agriculture, too. The Labor Department has a list of "hazardous occupations" that kids can't do until they turn 18; in agriculture, they can do them at 16, even though federal officials have found that farmworker youth are at "high risk" for fatal injuries. And that hazards list hasn’t been updated since 1970.
Last year, that was about to change. In late 2011, the Labor Department, based on research by the National Institute for Occupational Safety and Health (NIOSH), had proposed an updated list of hazardous occupations in agriculture that would be off limits to kids under 16. These included working near manure pits or inside grain silos (the latter had trapped at least 51 workers in 2010, more than half of whom died), using power machinery, working outdoors in dangerously hot weather, climbing tall ladders, working with certain livestock, harvesting tobacco, and driving large farm vehicles or trucks on certain roads, as Michael had been doing.
"It's just like in a McDonald's," says Zama Coursen-Neff, executive director of the children's rights initiative at Human Rights Watch. "We let 14- and 15-year-olds run the cash register, but we don't let them run the fryer." But after a storm of protest from the Farm Bureau and other agricultural lobbies [see Gabriel Thompson's article], the Labor Department withdrew the proposed rules—which had been years in the making—in April 2012.
The cost of that reversal may never be officially tallied. But after carefully piecing together available data, I discovered that, along with Michael, at least 12 other young farmworkers under the age of 16 have died since those protections were scuttled a year and a half ago. At least four of them died doing the hazardous tasks those rules would have prohibited them from performing.
My attempt to determine how many farmworker kids have been injured or killed since April 2012 met with many roadblocks. One important study, the Labor Department's Census of Fatal Occupational Injuries (CFOI), released in August and still preliminary, recorded 19 deaths among workers under 16 last year, up from ten the year before. But it doesn't yet specify which of these deaths happened in agriculture. Another study, the Survey of Occupational Injuries and Illness (SOII), found a rate of 5.5 injuries and illnesses per 100 workers reported in the agricultural sector in 2011 and 2012—up from a rate of 4.8 per 100 workers in 2010—but it did not provide a tally of injuries to workers under 16. Agriculture has among the highest injury and death rates of all industries. The Bureau of Labor Statistics, which produced both studies, denied a request for case files, arguing that providing them would jeopardize the privacy of employers. (An appeal has been filed with the solicitor of labor.) The federal Occupational Safety and Health Administration, which investigates workplace accidents, hasn't compiled data for 2012, and dozens of Freedom of Information Act requests filed with regional and state OSHA offices and workers’ compensation boards yielded injury data from only three states.
And there are limits on OSHA’s reach in any case. In Iowa, where the agency does cover agricultural employers, OSHA performed just 31 inspections on 92,300 farms in 2011. In other heavily agricultural states, like North Carolina, oversight is conducted instead by an agricultural safety council dominated by farmers' or growers' associations. North Carolina's Department of Labor responded to a FOIA request regarding injuries, illnesses and deaths among farmworkers ages 12 to 16 since April 2012 by saying it had "no records or documents" for this age group, adding that employers are required to report only accidents in which an employee dies or three or more are hospitalized. So any incident that does not meet these criteria (such as a single worker being hurt) is not reported.
I was mostly left to comb through local news clippings and to call farmworker advocates and researchers—people who spend time in the fields and might hear of accidents. The experts I called were vexed by the lack of available data on farmworker children. "The big story is, we don't have a surveillance system," says Amy Liebman, director of environmental and occupational health for the Salisbury, Maryland–based Migrant Clinicians Network. The CFOI numbers give "a general sort of idea," she adds, but "they really miss some of the hired teen workers."
In the end, I found 39 cases of injury or death over the last year and a half involving 12- to 15-year-olds working in agriculture. About a third—11 in all—worked on their parents' property and would not have been protected under the proposed rules, which contained an exemption for kids working on a family farm. But at least 12 kids under 16 were injured and four died doing tasks that would have been prohibited under the rules. An important contribution to the list came from California’s workers’ compensation board, which sent over brief, anonymous summaries of 16 relevant injury claims. But the cases I gathered don’t reflect the other states that advocates say are likely to have the highest number of young farmworkers: Texas, Michigan, Iowa, North Carolina and Washington State.
The cases I did find included 15-year-old Curvin Kropf, an Amish boy from Deer Grove, Illinois, who was killed in July 2012. According to the sheriff's report, Kropf died after he leaned from his seat atop a tall, tractor-like vehicle called a High-Boy to pull the tassels off a stalk of corn, fell and was crushed under the vehicle's wheel. According to local press reports, OSHA officials arrived at the scene but left because there were fewer than ten workers on the farm, which meant they lacked jurisdiction. (The same was true of the farm where Michael Steele was working last July.) I also learned about Cleason Nolt, 14, a member of a Mennonite community in Peach Bottom, Pennsylvania, who died along with his father and older brother: all three drowned in a manure pit while working as contractors in May 2012. Another preventable death was that of 18-year-old Kyle Beck of Wauseon, Ohio, who was killed when he fell beneath a wagon full of grain that was being pulled by a 15-year-old driving a tractor, which would not have been allowed under the proposed rules.
And in April 2013, there was the death of 14-year-old Enrique Lopez. [Names have been changed at the request of the family.]
Enrique started learning early in life how to be a grown-up. His immigrant mother worked long hours at a warehouse sorting potatoes to support her two boys—and when her older son returned to Mexico, Enrique wanted to help her. "He always thought of everyone else first," his mother told me in Spanish. "When we lived alone, I used to come in from work late, and he used to save food for me. Sometimes I worked from 4 pm until 2 o’clock in the morning, and he would get up at two and say, 'Mami, there’s pizza in the microwave.'" Enrique also wanted to take care of her financially, she said. "I used to give him $20 for Sundays, and then when we would go to the grocery store, he would pull it out his wallet to pay!"
In 2011, his mother moved in with her partner Miguel, an immigrant from Michoacan, who has worked for the past seven years as a hired hand at a cattle ranch in Idaho. The reserved, hard-working Miguel and the cheerful, charismatic Enrique got along, and the three shared a one-bedroom house on the ranch for which, Miguel said, the owner did not charge rent. In their little home, Enrique occupied a place of honor: he had the sole bedroom to himself, with a double bed on which he would stretch out to do his homework. His mother and stepfather slept on two foam-upholstered benches in the living room.
His parents said Enrique worked with Miguel on the ranch, feeding the cows, moving the heavy irrigation lines from field to field, and helping Miguel drive a truck to pull the alfalfa. They said he seemed eager to take on more responsibility on the farm. "He watched me, asked me questions, and that's how he learned" to drive a stick-shift pickup, Miguel said. Enrique drove without a license—but Ric Anderson, the sheriff of Caribou County, Idaho, observes that this is typical. "Rural America," he says. "If you're 8 years old and you can drive a truck on the family ranch, you're driving the truck. Is that good, bad? It's part of the culture."
The ranch where the family lives is nestled deep in a lush Idaho valley surrounded by mountains that appear purple, until the clouds part to let through ladders of sunlight. The soil is black, rich in minerals from nearby springs feeding the Bear and Portneuf rivers. The potatoes that grow in this region—the ones Enrique irrigated—are legendarily delicious.
One Saturday in April, Enrique evidently had trouble starting up one of the farm's pickups. What happened next is something of a mystery. The sheriff's report puts three pickup trucks in the yard: a Dodge, a Chevy with a heavy steel flatbed—"We'll call it a one-ton flatbed," Sheriff Anderson says—and a Ford. A farm dog was inside the cab of one of the trucks.
Enrique somehow got smashed between the one-ton Chevy and the side of the Dodge. He died there, pinned upright. Miguel, unable to reach him on his cellphone, went to the yard and found Enrique, already dead. The officer who reported to the scene wrote in his statement: "Appears that the chev pickup would not start so [Enrique] hooked both vehicles together and was trying to pull the chev pickup back some how [Enrique] ended up pinned between the two vehicles, it is unknown if the dog knocked the transmission into neutral in the chev." He then describes walking over to Enrique, whose mother was holding up his body. "I could tell…that he had been dead for some time," he wrote.
Enrique's work arrangement was informal: his parents told the sheriff that the rancher gave Miguel extra money in his paycheck because Enrique helped him. Yet Enrique would have been covered under all workplace safety rules, according to Mary Miller, an occupational health nurse and child labor specialist at the Washington State Department of Labor and Industries. "If someone is doing productive work for an employer, particularly a for-profit employer," she says, "then they must be treated as an employee."
OSHA opened an investigation at the ranch and last month published its preliminary findings, which cite eight violations of safety rules, six of them "serious," for a total of $8,500 in fines. OSHA's findings don’t mention that 14-year-old Enrique was handling the massive trucks alone; because the updates to the hazardous occupations rules were withdrawn, such work remains legal for kids like him. But there is support for his family's claim that Enrique was employed on the farm in the smallest of the fines: $500 for the failure to record a fatality as a work-related death.
Michael Steele and Enrique Lopez were both outgoing and popular, and their deaths hit their communities hard. Enrique's high school organized a memorial service for him and devoted space in the yearbook to his memory. Students had rubber bracelets imprinted with his name. Traces of grief for Michael appear online: the Facebook memorial page that his mother set up for him has 866 "likes." Both boys were big for their age, responsible, and had their eyes set on the future. Perhaps the adults in their lives—parents and employers alike—were convinced that they could do many of the things that men do. Indeed, they were highly capable kids. But they weren't men.
The lack of reliable information on kids like Michael and Enrique became even more glaring when I began looking for nonfatal injuries, which usually aren't covered in the press. The local newspaper item on Andy Mink, 15, who was hospitalized after being hit by a commercial truck as he drove a tractor for his summer job out on a Missouri road last July, was a rarity. California's list of 16 workers' compensation incidents involving kids under 16 included lacerations, sprains and even anaphylactic shock. I asked Barbara Lee, director of the National Children's Center for Rural and Agricultural Health and Safety, based at Wisconsin's Marshfield Clinic, why there was no national database of injuries to young farmworkers. "Because there's no federal agency charged with doing this," she replies. "We have different federal agencies collecting different types of data. But this particular situation falls through the cracks." She said that every three to four years, the center receives estimates from NIOSH's survey of injuries that occur on farms and then does its best to extrapolate the risks to children.
But those NIOSH surveys produce only estimates, based on voluntary reporting by farmers. "They only ask about direct hires," says Coursen-Neff of Human Rights Watch. "You have a whole category of children who work through contractors just like adults do. But you also have a whole other category of children who may or may not be legal to work—some are working who are underage on large farms, and some who might be legal age to work but who are not working on the books, who are out there with their parents." Enrique was one of these, working off the books at his stepdad's side.
In the Marshfield Clinic's 2012 report, "Blueprint for Protecting Children in Agriculture," Lee and her co-authors discuss the problem of evidence. "Since there are no 'official’ national injury and fatality data, goals and strategies for the future are based on the best available evidence…. In some cases, news clippings are the only methods used to track fatal and serious childhood agricultural injuries." It's impossible not to conclude that incidents are being missed. "It would be very valuable" to have accurate numbers, Lee tells me, "because if we could get a very clear picture of how young people are being injured, we'd be in a better position to intervene and suggest what can be done to minimize their injuries."
Even if good data can be obtained, Labor Department officials who still hope to expand protections for farmworker children will need to address what Sheriff Anderson referred to as "the culture": that is, agricultural employers and rural residents who don't want to be told they have to do things differently, even in the name of safety. Every September in rural Idaho, Enrique's mother told me, with school in session, you see "skinny little girls with a 50-pound sack of potatoes" and young boys, like her son, driving vehicles without a license. "Farmers like to do things their way," says Ellen Heywood, program coordinator at the University of Iowa’s Department of Occupational Safety and Environmental Health. "And by gum, they are not going to put on a mask if they don't want to. They're a hard group to get to do things safely, until somebody dies."
Mary Miller, of Washington State's Department of Labor and Industries, agrees that any new regulations on farmwork are a tough sell." There's this whole concept of agricultural exceptionalism. It's part of the agrarian myth. They've historically been exempt from health and safety laws, and with fewer protections in child labor, and many states are not covered under workers' comp for agricultural workers regardless of age. Certainly some employer organizations have wanted to keep it that way. The fight over the child labor rules is evidence of that."
Even parents whose children were injured or killed may not desire new safety rules. Debbie Nolt, who lost her husband and two sons in that Pennsylvania manure pit, declined to be interviewed, saying only that doing farmwork "is the most preferable way for our young men to learn work ethic and safety and responsibility. We do not wish to have a lot of regulations from the public." Rebecca Mink, whose son was hit by a truck while driving a tractor in July, likewise declined to talk about her family's experience, saying she would not support restrictions on what teens can do as workers. "We are certainly opposed" to any new regulations, she said, "and I will not be contributing to that nonsense." Coursen-Neff of Human Rights Watch has a different view. "Children can get skills, and work ethic, and all sorts of valuable things from work. But they should be able to do that in conditions that don't put their lives at risk or their health at risk."
Here and there, nonprofit organizations, rural clinics, labor unions and state agencies have set up outreach and education programs aimed at preventing injuries among the youngest farmworkers. But without detailed information about what is causing their injuries, experts say, it is difficult to design an appropriate response. "We are talking about the most vulnerable workers in America—young farmworkers," says Celeste Monforton, a professor at the George Washington School of Public Health and a former OSHA official. "And we don't have a clue what is going on. We don't even have a clue whether these education programs do any good." And while Mary Miller believes that part of the challenge is "changing hearts and minds," she knows that’s not enough. "You don't just educate a hazard away," Miller says. "You also have to control the hazards and remove exposure—even if it means removing the young worker from the exposure or hazard."
The day I sat with Michael's father, at a kitchen table stacked with photo albums of his son, I asked what he would say to other parents of kids who do farmwork. "I'd definitely talk to them very highly on the safety issues," he told me. "Maybe they ought to make an age limit as far as who can drive tractors." That's exactly what the hazardous occupations rule updates would have done. Instead, they were dropped. So, for summers to come, kids like Michael and Enrique will be out working on ranches and farms, legally doing the most dangerous tasks—some of them getting injured or sick, and some dying, leaving their families to bear the pain of their loss. "My life disappeared along with my son," says Enrique's mother. "But maybe telling you all this, you being here, could help save the life of one boy or one girl. Only God knows."
This article was reported in partnership with the Investigative Fund of the Nation Institute. Research assistance: Darren Ankrom, Abbie Nehring.